Uniform Evidence [2 ed.] 0195521056, 9780195521054

Table of contents :
CONTENTS
Preface
Acknowledgments
Table of Cases
Table of Statutes
CHAPTER 1: UNIFORM EVIDENCE LAW
1.1 Evidence law
1.1.1 Promoting accurate fact-finding
1.1.2 Competing goals
1.2 Uniform law
1.2.1 Application
1.2.2 Development
1.2.3 Accessibility
1.3 Other laws
1.3.1 Other statutes
1.3.2 Common law
1.3.3 Overseas law
1.3.4 Human rights law
PART 1: ADDUCING EVIDENCE
CHAPTER 2: WITNESSES
2.1 Competence and compellability of witnesses
2.1.1 Sworn and unsworn evidence
2.1.2 Tests for competence
2.1.3 Compellability
2.1.4 The defendant in criminal proceedings
2.1.5 The defendant’s family
2.2 Failure to call witnesses
2.2.1 Civil proceedings
2.2.2 Criminal proceedings
2.2.3 The evidential significance of the defendant’s failure to testify
2.3 The examination of witnesses
2.3.1 Manner and form of questioning
2.3.2 The role of the judge
2.3.3 Examination-in-chief
2.3.4 Cross-examination
2.3.5 Re-examination
2.3.6 Special arrangements for testifying
CHAPTER 3: DOCUMENTARY AND REAL EVIDENCE
3.1 Documents
3.1.1 The purposes for which the contents of documents can be adduced
3.1.2 What is a document?
3.1.3 Secondary evidence of the contents of a document
3.1.4 Authentication of documents
3.2 Particular kinds of documents
3.2.1 Audio and video recordings
3.2.2 Photographs
3.2.3 Maps, models, charts and diagrams
3.2.4 Computer-generated evidence
3.2.5 Voluminous and complex documents
3.3 Real evidence
3.3.1 Introduction
3.3.2 General principles
3.3.3 Physical objects
3.3.4 Views
PART 2: ADMISSIBILITY
CHAPTER 4: RELEVANCE
4.1 The fundamental rule of evidence
4.1.1 Definition of relevance
4.1.2 Relevant to what?
4.1.3 How much of an effect on the probabilities?
4.2 The different ways in which evidence can be relevant
4.2.1 Direct evidence
4.2.2 Circumstantial evidence
4.2.3 An illustration of the difference
4.3 Applying the test of relevance
4.3.1 A matter of common sense
4.3.2 Spelling out the connections
4.3.3 Decisions on relevance
4.4 Provisional relevance
CHAPTER 5: THE HEARSAY RULE
5.1 Rationale for the hearsay rule
5.1.1 The law’s response
5.1.2 Justification for the retention of a hearsay rule in the uniform evidence legislation
5.2 Scope of the hearsay rule
5.2.1 Hearsay defined in section 59(1)
5.2.2 ‘Representation’
5.2.3 ‘Previous representation’
5.2.4 ‘Made by a person’
5.2.5 Hearsay uses of a previous representation
5.2.6 Non-hearsay uses of a previous representation
5.2.7 The requirement of intention
5.2.8 Establishing intention
5.3 Contemporaneous mental and physical states
5.3.1 Inferring mental and physical states
5.3.2 Inferences from physical and mental states
5.3.3 Limitations on section 66A
5.4 Evidence relevant for a non-hearsay purpose
5.4.1 Section 60(1)
5.4.2 Second-hand hearsay and admissions
5.4.3 Interaction with other exceptions
5.4.4 Using the discretions to limit the use of evidence admissible pursuant to section 60
CHAPTER 6: HEARSAY EXCEPTIONS
6.1 The role of hearsay exceptions
6.1.1 Rationale for hearsay exceptions
6.1.2 Development of the exceptions
6.1.3 Effect of the exceptions
6.1.4 Limiting the exceptions
6.2 First-hand hearsay
6.2.1 General requirements for first-hand hearsay
6.2.2 First-hand hearsay in civil proceedings
6.2.3 Representations of testifying witnesses in criminal proceedings
6.2.4 Other first-hand hearsay adduced by the defence
6.2.5 Other first-hand hearsay adduced by the prosecution
6.3 Remote hearsay
6.3.1 Business and other routine records
6.3.2 Descriptions of objects and messages
6.3.3 Evidence of reputation and traditions
6.3.4 Evidence in interlocutory proceedings
CHAPTER 7: OPINION
7.1 The opinion rule
7.2 Permitted opinions
7.2.1 Necessary communication of eyewitness perceptions
7.2.2 Opinions substantially based on specialised knowledge
7.2.3 Other opinions
7.3 Managing expert opinions
7.3.1 Subject-matter
7.3.2 Foundational facts
7.3.3 Communication
CHAPTER 8: ADMISSIONS
8.1 Adverse inferences
8.1.1 Adverse inferences from a party’s previous representation
8.1.2 Adverse inferences from a person’s silence
8.2 Excluding admissions
8.2.1 Scope of the exclusionary rules
8.2.2 Oppressive influences
8.2.3 Potential unreliability
8.2.4 Unfair use
8.3 Proving admissions
8.3.1 Requirement for first-hand evidence
8.3.2 Requirements for written admissions
8.3.3 Requirement for electronic recordings
8.3.4 Proof of admissibility
CHAPTER 9: JUDGMENTS AND CONVICTIONS
9.1 The exclusionary rule
9.2 Exceptions to the rule
CHAPTER 10: TENDENCY AND COINCIDENCE
10.1 Tendency and coincidence reasoning
10.1.1 Tendency reasoning
10.1.2 Coincidence reasoning
10.1.3 Pattern reasoning
10.1.4 Other circumstantial reasoning
10.2 The exclusionary rules
10.2.1 Notice
10.2.2 Significant probative value
10.2.3 Exceptions to the tendency and coincidence rules
10.3 Tendency evidence about rape complainants
10.3.1 Scope of the rape shield laws
10.3.2 The exclusionary rules
10.3.3 Permitted reasoning about sexual behaviour
CHAPTER 11: CREDIBILITY
11.1 The nature of credibility evidence
11.2 The relevance of credibility evidence
11.3 The admissibility of credibility evidence
11.3.1 Overview of the credibility rules
11.3.2 Scope of the credibility rules
11.3.3 The distinction between relevance to credibility and relevance to issue
11.3.4 Distinguishing between credit and issue
11.4 Cross-examination as to credibility
11.5 Rebutting denials by other evidence
11.5.1 The general rule
11.5.2 Exceptions to the rule
11.5.3 Triggering the operation of the exceptions
11.5.4 Applying the exceptions
11.5.5 Rebutting the rebuttal
11.6 Rehabilitating credibility
11.6.1 Re-examination
11.6.2 Prior consistent statements
11.7 The credibility of hearsay
11.8 Expert evidence
11.9 The credibility of complainants in sexual offence trials
11.9.1 Delay
11.9.2 Sexual history evidence
CHAPTER 12: CHARACTER
12.1 Tendency and coincidence evidence about the defendant
12.1.1 Probative value
12.1.2 Prejudicial effect
12.1.3 The exclusionary rule
12.1.4 Tendency and coincidence evidence about sexual offence defendants
12.2 The defendant’s credibility
12.2.1 The defendant’s character shield
12.2.2 Loss of the character shield
12.3 The defendant’s character
12.3.1 Proving good character
12.3.2 Proving lack of good character
12.3.3 The character of co-defendants
12.4 Managing character evidence in jury trials
12.4.1 Managing information
12.4.2 Managing trials
12.4.3 Managing reasoning
CHAPTER 13: IDENTIFICATION
13.1 Identification evidence
13.1.1 Definition of ‘identification evidence’
13.1.2 The dangers of identification evidence
13.1.3 Mandatory warning
13.2 Identification procedures
13.2.1 Identification parades
13.2.2 Picture identification
13.2.3 Discretionary exclusion
CHAPTER 14: PRIVILEGES
14.1 The law of privilege
14.1.1 Powers to compel disclosure
14.1.2 The public policy basis of the law of privilege
14.1.3 Effect of a claim of privilege
14.1.4 Scope of the uniform evidence legislation privileges
14.2 Professional confidential relationship privilege
14.3 Journalist privilege
14.4 Sexual assault counselling privileges
14.5 The privilege against self-incrimination
14.5.1 Justification for the privilege
14.5.2 Scope of the privilege
14.5.3 Determining the claim
14.5.4 Overriding the privilege
14.5.5 Criminal defendants
14.5.6 Corporations
14.6 Evidence of matters of state
14.6.1 The nature of section 130
14.6.2 The interest in non-disclosure
14.6.3 The interest in disclosure
14.6.4 The balancing exercise
14.6.5 Court inspection
14.7 Evidence of settlement negotiations
14.8 Other privileges
CHAPTER 15: CLIENT LEGAL PRIVILEGE
15.1 Justification for the privilege
15.2 Scope of the privilege
15.2.1 Confidential communications and documents
15.2.2 The first privileged purpose—providing legal advice: section 118
15.2.3 The second privileged purpose—litigation: section 119
15.2.4 Unrepresented parties
15.2.5 The dominant purpose test
15.2.6 The making of an objection
15.2.7 Client and lawyer
15.2.8 Copies of unprivileged documents
15.3 Loss of privilege
15.3.1 General loss of privilege
15.3.2 Acting inconsistently with the maintenance of the privilege
15.3.3 Evidence relevant to the defence of the accused in criminal proceedings
15.3.4 Joint clients
15.3.5 Misconduct
15.3.6 Related communications and documents
CHAPTER 16: DISCRETIONARY AND MANDATORY EXCLUSIONS
16.1 Nature of discretion
16.1.1 The role of the discretions in the uniform evidence legislation
16.2 The general discretion to exclude evidence
16.2.1 Probative value
16.2.2 Prejudicial effect
16.2.3 The balancing exercise
16.2.4 Misleading or confusing evidence
16.2.5 Time-wasting evidence
16.3 General discretion to limit use of evidence
16.4 Exclusion of prejudicial evidence in criminal proceedings
16.4.1 Application of the discretion
16.4.2 Alternatives to exclusion
16.4.3 Broader considerations of unfairness
16.5 Discretion to exclude improperly or illegally obtained evidence
16.5.1 Rationale for the discretion
16.5.2 Illegality or impropriety
16.5.3 Connection with illegality or impropriety
16.5.4 Operation of the exclusionary discretion
16.5.5 Relationship between sections 138 and 90
16.5.6 Application of the discretion: Covertly recorded admissions
PART 3: PROOF
CHAPTER 17: THE BURDEN AND STANDARD OF PROOF
17.1 The burden of proof
17.1.1 The legal burden
17.1.2 The evidential burden
17.1.3 The burden of proof on a voir dire
17.2 The standard of proof
17.2.1 Civil proceedings
17.2.2 Criminal proceedings
17.2.3 Facts relevant to the admissibility of evidence
CHAPTER 18: FACTS THAT CAN BE PROVED WITHOUT EVIDENCE
18.1 The doctrine of judicial notice
18.1.1 The effect of judicial notice
18.1.2 Australian law
18.1.3 Facts forming part of common knowledge
18.1.4 Facts that can be verified by reference to an authoritative document
18.1.5 Matters of state
18.2 Formal admissions and agreed facts
18.2.1 Civil proceedings
18.2.2 Criminal proceedings
CHAPTER 19: WARNINGS AND INFORMATION
19.1 Uniform evidence law directions
19.1.1 Unreliable kinds of evidence
19.1.2 Significant forensic disadvantage
19.2 Common law directions
19.2.1 Corroboration warnings
19.2.2 Fairness warnings
19.2.3 Factual directions
CHAPTER 20: PROCEDURAL PROVISIONS
20.1 The voir dire
20.2 Advance rulings
20.3 Waiver of the rules of evidence
20.4 The giving of leave, permission and directions
20.5 The facilitation of proof
20.6 Ancillary provisions
Index

Citation preview

GAN_UE2E_21054_CVR

170 mm x 245 mm

CMYK

Spine: 22.9 mm

SECOND EDITION

UNIFORM EVIDENCE

U N I F O R M EVIDENCE

A clear introduction to uniform evidence law in Australia Uniform Evidence sets out the rules of evidence as they apply to Australian courts in an accessible and student-friendly style. The second edition covers all uniform evidence law jurisdictions including the courts of the Commonwealth, New South Wales, Australian Capital Territory, Victoria, Tasmania and most recently the Northern Territory. Practical applications of uniform evidence law are illustrated throughout with case examples, and flowcharts clearly summarise complex legal rules and issues. Contemporary Updated throughout to reflect all amendments to the legislation and the extension of the legislation to the Northern Territory, and includes significant new cases. Engaging Explains, analyses and critiques uniform evidence law in a manner that can be readily understood and easily applied by students and practitioners. Jeremy Gans is a Professor in the Melbourne Law School at the University of Melbourne.

AND

A N D R E W PA L M E R

UNIFORM EVIDENCE

GANS

Andrew Palmer is a Barrister at Law and an Associate Professor in the Melbourne Law School at the University of Melbourne.

JEREMY GANS

PA L M E R

SECOND EDITION

ISBN 978-0-19-552105-4

9 780195 521054

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JEREMY GANS

AND

A N D R E W PA L M E R

UNIFORM EVIDENCE

secOND EDITION

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Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trademark of Oxford University Press in the UK and in certain other countries. Published in Australia by Oxford University Press 253 Normanby Road, South Melbourne, Victoria 3205, Australia © Jeremy Gans and Andrew Palmer 2014 The moral rights of the authors have been asserted. First published 2010 Second Edition 2014 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence, or under terms agreed with the appropriate reprographics rights organisation. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above. You must not circulate this work in any other form and you must impose this same condition on any acquirer. National Library of Australia Cataloguing-in-Publication entry Gans, Jeremy, 1971- author. Uniform evidence / Jeremy Gans, Andrew Palmer. 2nd edition. ISBN 9780195521054 (paperback) Includes index. Evidence (Law) Evidence (Law)—Australia. Palmer, Andrew, 1963- author. 347.06 Reproduction and communication for educational purposes The Australian Copyright Act 1968 (the Act) allows a maximum of one chapter or 10% of the pages of this work, whichever is the greater, to be reproduced and/or communicated by any educational institution for its educational purposes provided that the educational institution (or the body that administers it) has given a remuneration notice to Copyright Agency Limited (CAL) under the Act. For details of the CAL licence for educational institutions contact: Copyright Agency Limited Level 15, 233 Castlereagh Street Sydney NSW 2000 Telephone: (02) 9394 7600 Facsimile: (02) 9394 7601 Email: [email protected] Edited by Valina Rainer Cover design by Glen McClay Text design by Glen McClay Typeset by diacriTech Proofread by Carolyn Leslie, AE Indexed by Glenda Browne Printed by Markono Print Media Pte Ltd, Singapore Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.

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CONTENTS Preface Acknowledgments Table of Cases Table of Statutes

x xii xiii xxvii

CHAPTER 1: UNIFORM EVIDENCE LAW 1.1 Evidence law 1.1.1 Promoting accurate fact-finding 1.1.2 Competing goals 1.2 Uniform law 1.2.1 Application 1.2.2 Development 1.2.3 Accessibility 1.3 Other laws 1.3.1 Other statutes 1.3.2 Common law 1.3.3 Overseas law 1.3.4 Human rights law

1 2 2 7 10 11 13 14 16 16 17 19 20

PART 1: ADDUCING EVIDENCE

23

CHAPTER 2: WITNESSES 2.1 Competence and compellability of witnesses 2.1.1 Sworn and unsworn evidence 2.1.2 Tests for competence 2.1.3 Compellability 2.1.4 The defendant in criminal proceedings 2.1.5 The defendant’s family 2.2 Failure to call witnesses 2.2.1 Civil proceedings 2.2.2 Criminal proceedings 2.2.3 The evidential significance of the defendant’s failure to testify 2.3 The examination of witnesses 2.3.1 Manner and form of questioning 2.3.2 The role of the judge 2.3.3 Examination-in-chief 2.3.4 Cross-examination 2.3.5 Re-examination 2.3.6 Special arrangements for testifying

25 26 26 27 28 29 29 30 30 32 33 38 38 39 39 43 49 50

CHAPTER 3: DOCUMENTARY AND REAL EVIDENCE 3.1 Documents 3.1.1 The purposes for which the contents of documents can be adduced 3.1.2 What is a document? 3.1.3 Secondary evidence of the contents of a document 3.1.4 Authentication of documents

53 53 53 54 55 56

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CONTENTS

3.2

3.3

Particular kinds of documents 3.2.1 Audio and video recordings 3.2.2 Photographs 3.2.3 Maps, models, charts and diagrams 3.2.4 Computer-generated evidence 3.2.5 Voluminous and complex documents Real evidence 3.3.1 Introduction 3.3.2 General principles 3.3.3 Physical objects 3.3.4 Views

58 58 59 59 60 61 61 61 62 62 63

PART 2: ADMISSIBILITY

69

CHAPTER 4: RELEVANCE 4.1 The fundamental rule of evidence 4.1.1 Definition of relevance 4.1.2 Relevant to what? 4.1.3 How much of an effect on the probabilities? 4.2 The different ways in which evidence can be relevant 4.2.1 Direct evidence 4.2.2 Circumstantial evidence 4.2.3 An illustration of the difference 4.3 Applying the test of relevance 4.3.1 A matter of common sense 4.3.2 Spelling out the connections 4.3.3 Decisions on relevance 4.4 Provisional relevance

71 71 71 72 74 74 75 75 76 77 77 78 78 79

CHAPTER 5: THE HEARSAY RULE 5.1 Rationale for the hearsay rule 5.1.1 The law’s response 5.1.2 Justification for the retention of a hearsay rule in the uniform evidence legislation 5.2 Scope of the hearsay rule 5.2.1 Hearsay defined in section 59(1) 5.2.2 ‘Representation’ 5.2.3 ‘Previous representation’ 5.2.4 ‘Made by a person’ 5.2.5 Hearsay uses of a previous representation 5.2.6 Non-hearsay uses of a previous representation 5.2.7 The requirement of intention 5.2.8 Establishing intention 5.3 Contemporaneous mental and physical states 5.3.1 Inferring mental and physical states 5.3.2 Inferences from physical and mental states 5.3.3 Limitations on section 66A 5.4 Evidence relevant for a non-hearsay purpose 5.4.1 Section 60(1) 5.4.2 Second-hand hearsay and admissions

82 82 84

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5.4.3 5.4.4

Interaction with other exceptions Using the discretions to limit the use of evidence admissible pursuant to section 60

104 104

CHAPTER 6: HEARSAY EXCEPTIONS 6.1 The role of hearsay exceptions 6.1.1 Rationale for hearsay exceptions 6.1.2 Development of the exceptions 6.1.3 Effect of the exceptions 6.1.4 Limiting the exceptions 6.2 First-hand hearsay 6.2.1 General requirements for first-hand hearsay 6.2.2 First-hand hearsay in civil proceedings 6.2.3 Representations of testifying witnesses in criminal proceedings 6.2.4 Other first-hand hearsay adduced by the defence 6.2.5 Other first-hand hearsay adduced by the prosecution 6.3 Remote hearsay 6.3.1 Business and other routine records 6.3.2 Descriptions of objects and messages 6.3.3 Evidence of reputation and traditions 6.3.4 Evidence in interlocutory proceedings

106 107 107 107 109 109 111 112 113

CHAPTER 7: OPINION 7.1 The opinion rule 7.2 Permitted opinions 7.2.1 Necessary communication of eyewitness perceptions 7.2.2 Opinions substantially based on specialised knowledge 7.2.3 Other opinions 7.3 Managing expert opinions 7.3.1 Subject-matter 7.3.2 Foundational facts 7.3.3 Communication

136 136 139 140

CHAPTER 8: ADMISSIONS 8.1 Adverse inferences 8.1.1 Adverse inferences from a party’s previous representation 8.1.2 Adverse inferences from a person’s silence 8.2 Excluding admissions 8.2.1 Scope of the exclusionary rules 8.2.2 Oppressive influences 8.2.3 Potential unreliability 8.2.4 Unfair use 8.3 Proving admissions 8.3.1 Requirement for first-hand evidence 8.3.2 Requirements for written admissions 8.3.3 Requirement for electronic recordings 8.3.4 Proof of admissibility

155 156

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115 116 118 125 125 128 129 130

142 144 146 148 149 151

156 159 161 162 164 166 168 172 172 173 173 176

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CONTENTS

CHAPTER 9: JUDGMENTS AND CONVICTIONS 9.1 The exclusionary rule 9.2 Exceptions to the rule

180 180 182

CHAPTER 10: TENDENCY AND COINCIDENCE 10.1 Tendency and coincidence reasoning 10.1.1 Tendency reasoning 10.1.2 Coincidence reasoning 10.1.3 Pattern reasoning 10.1.4 Other circumstantial reasoning 10.2 The exclusionary rules 10.2.1 Notice 10.2.2 Significant probative value 10.2.3 Exceptions to the tendency and coincidence rules 10.3 Tendency evidence about rape complainants 10.3.1 Scope of the rape shield laws 10.3.2 The exclusionary rules 10.3.3 Permitted reasoning about sexual behaviour

185 185 186 188 190 191 195 195 197 199 201 201 202 203

CHAPTER 11: CREDIBILITY 11.1 The nature of credibility evidence 11.2 The relevance of credibility evidence 11.3 The admissibility of credibility evidence 11.3.1 Overview of the credibility rules 11.3.2 Scope of the credibility rules 11.3.3 The distinction between relevance to credibility and relevance to issue 11.3.4 Distinguishing between credit and issue 11.4 Cross-examination as to credibility 11.5 Rebutting denials by other evidence 11.5.1 The general rule 11.5.2 Exceptions to the rule 11.5.3 Triggering the operation of the exceptions 11.5.4 Applying the exceptions 11.5.5 Rebutting the rebuttal 11.6 Rehabilitating credibility 11.6.1 Re-examination 11.6.2 Prior consistent statements 11.7 The credibility of hearsay 11.8 Expert evidence 11.9 The credibility of complainants in sexual offence trials 11.9.1 Delay 11.9.2 Sexual history evidence

207 207 208 209 209 210 212 213 214 217 217 218 219 220 224 225 225 225 229 230 232 233 233

CHAPTER 12: CHARACTER 12.1 Tendency and coincidence evidence about the defendant 12.1.1 Probative value 12.1.2 Prejudicial effect 12.1.3 The exclusionary rule 12.1.4 Tendency and coincidence evidence about sexual offence defendants 12.2 The defendant’s credibility 12.2.1 The defendant’s character shield 12.2.2 Loss of the character shield

236 237 238 239 240 244 248 248 250

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12.3 The defendant’s character 12.3.1 Proving good character 12.3.2 Proving lack of good character 12.3.3 The character of co-defendants 12.4 Managing character evidence in jury trials 12.4.1 Managing information 12.4.2 Managing trials 12.4.3 Managing reasoning

251 251 252 254 254 255 256 258

CHAPTER 13: IDENTIFICATION 13.1 Identification evidence 13.1.1 Definition of ‘identification evidence’ 13.1.2 The dangers of identification evidence 13.1.3 Mandatory warning 13.2 Identification procedures 13.2.1 Identification parades 13.2.2 Picture identification 13.2.3 Discretionary exclusion

263 263 263 266 268 269 270 273 275

CHAPTER 14: PRIVILEGES 14.1 The law of privilege 14.1.1 Powers to compel disclosure 14.1.2 The public policy basis of the law of privilege 14.1.3 Effect of a claim of privilege 14.1.4 Scope of the uniform evidence legislation privileges 14.2 Professional confidential relationship privilege 14.3 Journalist privilege 14.4 Sexual assault counselling privileges 14.5 The privilege against self-incrimination 14.5.1 Justification for the privilege 14.5.2 Scope of the privilege 14.5.3 Determining the claim 14.5.4 Overriding the privilege 14.5.5 Criminal defendants 14.5.6 Corporations 14.6 Evidence of matters of state 14.6.1 The nature of section 130 14.6.2 The interest in non-disclosure 14.6.3 The interest in disclosure 14.6.4 The balancing exercise 14.6.5 Court inspection 14.7 Evidence of settlement negotiations 14.8 Other privileges

279 279 279 280 281 282 284 286 287 288 288 289 290 291 292 293 293 293 294 298 298 299 299 300

CHAPTER 15: CLIENT LEGAL PRIVILEGE 15.1 Justification for the privilege 15.2 Scope of the privilege 15.2.1 Confidential communications and documents 15.2.2 The first privileged purpose—providing legal advice: section 118 15.2.3 The second privileged purpose—litigation: section 119 15.2.4 Unrepresented parties

303 303 304 304 305 307 308

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CONTENTS

15.2.5 The dominant purpose test 15.2.6 The making of an objection 15.2.7 Client and lawyer 15.2.8 Copies of unprivileged documents 15.3 Loss of privilege 15.3.1 General loss of privilege 15.3.2 Acting inconsistently with the maintenance of the privilege 15.3.3 Evidence relevant to the defence of the accused in criminal proceedings 15.3.4 Joint clients 15.3.5 Misconduct 15.3.6 Related communications and documents

308 309 309 310 310 311 311 317 318 318 319

CHAPTER 16: DISCRETIONARY AND MANDATORY EXCLUSIONS 16.1 Nature of discretion 16.1.1 The role of the discretions in the uniform evidence legislation 16.2 The general discretion to exclude evidence 16.2.1 Probative value 16.2.2 Prejudicial effect 16.2.3 The balancing exercise 16.2.4 Misleading or confusing evidence 16.2.5 Time-wasting evidence 16.3 General discretion to limit use of evidence 16.4 Exclusion of prejudicial evidence in criminal proceedings 16.4.1 Application of the discretion 16.4.2 Alternatives to exclusion 16.4.3 Broader considerations of unfairness 16.5 Discretion to exclude improperly or illegally obtained evidence 16.5.1 Rationale for the discretion 16.5.2 Illegality or impropriety 16.5.3 Connection with illegality or impropriety 16.5.4 Operation of the exclusionary discretion 16.5.5 Relationship between sections 138 and 90 16.5.6 Application of the discretion: Covertly recorded admissions

322 322 323 324 324 327 329 330 330 331 332 333 334 335 336 337 338 345 351 355 356

PART 3: PROOF

361

CHAPTER 17: THE BURDEN AND STANDARD OF PROOF 17.1 The burden of proof 17.1.1 The legal burden 17.1.2 The evidential burden 17.1.3 The burden of proof on a voir dire 17.2 The standard of proof 17.2.1 Civil proceedings 17.2.2 Criminal proceedings 17.2.3 Facts relevant to the admissibility of evidence

363 363 363 364 364 365 365 367 368

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CHAPTER 18: FACTS THAT CAN BE PROVED WITHOUT EVIDENCE 18.1 The doctrine of judicial notice 18.1.1 The effect of judicial notice 18.1.2 Australian law 18.1.3 Facts forming part of common knowledge 18.1.4 Facts that can be verified by reference to an authoritative document 18.1.5 Matters of state 18.2 Formal admissions and agreed facts 18.2.1 Civil proceedings 18.2.2 Criminal proceedings

371 371 371 372 373 374 374 375 375 377

CHAPTER 19: WARNINGS AND INFORMATION 19.1 Uniform evidence law directions 19.1.1 Unreliable kinds of evidence 19.1.2 Significant forensic disadvantage 19.2 Common law directions 19.2.1 Corroboration warnings 19.2.2 Fairness warnings 19.2.3 Factual directions

379 380 380 384 387 387 389 391

CHAPTER 20: PROCEDURAL PROVISIONS 20.1 The voir dire 20.2 Advance rulings 20.3 Waiver of the rules of evidence 20.4 The giving of leave, permission and directions 20.5 The facilitation of proof 20.6 Ancillary provisions

394 394 395 396 398 399 400

Index

402

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PREFACE As we finalised the proofs of this text, Victoria’s Court of Appeal released its judgment in Haddara v The Queen [2014] VSCA 100. Waleed Haddara, his jury found, had fired six shots from his car into another, oblivious that the other car’s driver was his cousin (rather than a family rival). Haddara was also unaware that his own driver (who despised Haddara for introducing him to methamphetamines) was taping the whole incident on his phone. The appeal court ruled that the jury could use a recording of innocuous comments that the mentally impaired suspect made during an otherwise ‘no comment’ police interview in order to identify the offender’s voice on the driver’s tape. Haddara was the 171st published judgment of Victoria’s appeal court that mentions that state’s Evidence Act 2008. At the same point in time, there had been over 1200 appellate mentions of the uniform evidence law in New South Wales, over 230 in the federal courts, over 100 in the High Court, over 70 and 30 respectively in Tasmania and the Australian Capital Territory, a handful in the Northern Territory and one from Norfolk Island. In a paper published last year, retired High Court judge Dyson Heydon pronounced the sheer volume of decisions on the uniform evidence law (particularly in NSW) a worrying sign:1 They do not seem to betoken merely necessary but transitory birth pangs while a better world is being born. They point to a chronic and continuing problem.

We disagree (and not just because Mr Heydon attempts neither an investigation of the voluminous case law nor a comparison with decisions on the previous common law). Having the law of evidence regularly featured in the nation’s peak courts—rather than banished to unexamined lower court rulings or locked away in a dusty treatise—is the ‘better world’ that we hoped would follow the enactment of the uniform evidence law. In recognition of this vibrant and increasingly mature jurisprudence, we have opted in this new edition of our text to increase our use of case examples in our discussion of the principles behind the law. For example, we bid a fond farewell to the golfer practicing her swing in a vandalism-prone neighbourhood, who helped us to illustrate the nature of tendency and coincidence reasoning in Part 3.6 of the statutes, in favour of a fully-worked treatment of a poker machine counterfeiting dispute that reached the High Court last year in Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd; Aristocrat Technologies Australia Pty Ltd v Allam [2013] HCA 21. With so many jurisdictions participating in the new regime, we can now track disagreements between appellate courts on topics such as the meaning of ‘probative value’, or the admissibility of tendency evidence in sexual offence proceedings, important splits between the judiciaries of the nation’s two most populous states that were seemingly swept under the common law carpet. We are also pleased that even jurisdictions with relatively modest citations of the statutes have contributed important readings of the legislation, and that all have yielded evocative facts like those in Haddara. That isn’t, of course, to say that we agree with the outcomes of all the judgments we discuss, much less the reasoning underlying them. To take Haddara as an example, a majority of the Court of Appeal held that the dispute about the use of Haddara’s police interview to identify the voice on the driver’s tape was governed, not by Part 3.4 of the legislation on admissions, but rather by the common law. Justices Weinberg and Redlich relied on arguments Mr Heydon had proposed in his paper mentioned above to conclude that all common law exclusionary rules continue to apply under the uniform evidence law unless the new statutes set out a replacement rule on the 1 J Heydon, ‘The non-uniformity of the “uniform” Evidence Acts and their effect on the general law’ (2013) 2 Journal of Civil Law and Procedure 169, 171.

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same ‘specific area’. While it might seem that preserving old common law rules is more protective of the justice system (and criminal defendants in particular), we consider that this stance carries considerable costs. One is the risk that the lingering fall-back to common law rules may prompt courts to refrain from giving full force to important protections in the uniform evidence legislation. For example, in Haddara, the Court’s contemplation of the survival of the common law’s ‘fairness’ discretion only arose because the Court ruled that similar discretion in section 90 was inapplicable. It made that ruling on the improbable basis that nothing Haddara said to the police during his interview (including his full responses to questions about his whereabouts and business practices) was a ‘representation’. This apparent instance of reading down the clear words of the legislation, by reference to notions from the previous law, narrows the scope of all the protective rules in Part 3.4, including protections that have no analogue in the common law. A second, quite different cost is that, if significant parts of the common law’s exclusionary rules now potentially coexist with the uniform evidence legislation, then this means that all courts at all levels in the seven adopting jurisdictions must simultaneously keep track of and apply two systems of evidence law in every trial, an approach that risks confusion below and successful appeals above. Our view is that, just as the decisions of the legislatures of Queensland, South Australia and Western Australia not to adopt the new system should be accorded respect,2 so too should the decisions of Australia’s other seven legislatures to depart from the common law. The Victorian Court of Appeal’s stance is especially surprising in light of significant movements by that court to rectify the greatest current flaw in the uniform evidence law: the simultaneous application of statutory and common law regimes on mandatory jury directions. As we (in past editions of this text) and countless others have argued, the High Court’s common law jurisprudence on mandatory jury directions, while superficially protective of criminal defendants, was at best a substantial burden for jurors, trial judges and appeal courts alike and at worst a significant intrusion into the adversarial system and the independence of the jury. To this end, Victorian judges have been keenly involved in the movement to abolish the common law on jury directions (left in place by section 165(5) of the uniform law) and to replace it with a consolidated statute that simplifies the required directions and restores the adversarial process.3 Regrettably, this widely supported law reform has fallen victim to the chaos of Victoria’s minority government. While a rump Jury Directions Act 2013 was enacted, the more significant reforms in a proposed amendment bill were defeated in April 2014 during a wrangle about parliamentary procedure. Although the dispute had nothing to do with the merits of the legislation, the fate of an identical bill before one house remains uncertain, with the current Parliament’s own future now in some doubt. With our publisher’s indulgence, we have nevertheless retained references throughout the text to the ‘proposed Jury Directions Amendment Bill 2014’, in the hope that the bill will eventually become law, if not this year, then during the next government. We have done this in part because we consider the reforms so sound and necessary that we anticipate that they will inevitably be adopted in other Australian jurisdictions. As in the previous edition, Jeremy took primary responsibility for Chapters 1, 5–10, 12, 13 and 19, while Andrew took primary responsibility for Chapters 2–5, 11, 14–18 and 20. Jeremy thanks Melbourne Law School for granting him sabbatical to work on this edition, while Andrew thanks his research assistants, Nicholas Boyd-Caine and the wonderful and irreplaceable Cate Read. We both appreciate the support of the editorial team at Oxford University Press and the patience of our beloved partners, Denise van Dijk and Madeleine Fogarty. Jeremy Gans and Andrew Palmer, September 2014 2 Baker v The Queen [2012] HCA 27, [114] (Heydon J). 3 M Weinberg, Report from the Honourable Justice Mark Weinberg on Jury Directions, Supreme Court of Victoria (2012).

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ACKNOWLEDGMENTS The author and the publisher wish to thank the following copyright holders for reproduction of their material. Australian Law Reform Commission for extracts from the Evidence (Interim), Report No 26 (2005); Cambridge University Press for extract from W Twining, Rethinking Evidence, 2006; Commonwealth of Australia for extracts from the Evidence Act 1995. This legislative material is reproduced, but is not the offical or authorised version. It is subject to Commonwealth of Australia Copyright; Federal Court of Australia for case extracts; High Court of Australia for case extracts; Incorporated Council of Law Reporting (ICLR) for extract from Law Reports Appeals Cases (AC); Lexis Nexis Australia for extracts from Australian Law Reports (ALR), Victorian Reports (VR); State of New South Wales through the Department of Attorney General and Justice for NSW Court extracts; Supreme Court of ACT for case extracts; Supreme Court of Victoria for case extracts; Thomson Reuters (Professional) Australia Limited for extracts from Australian Criminal Reports (A Crim R) Commonwealth Law Reports (CLR), Federal Court Reports (FCR), Federal Law Reports (FLR), New South Wales Law Reports (NSWLR), South Australian State Reports (SASR). www.thomsonreuters.com.au; Thomson Reuters UK for extract from Criminal Appeal Reports (Cr App R); Virginia University Press for extract form Y Kamisar, ‘Equal Justice in the Gatehouses and Mansions of American Criminal Procedure’, in A Howard (ed), Criminal Justice in Our Time, 1965. 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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TABLE OF CASES 789Ten Pty Ltd v Westpac Banking Corp Pty Ltd [2005] NSWSC 123 15.2.3, 15.2.5 A v Secretary of State for the Home Department [2005] UKHL 71 8.2.2 Aboriginal Sacred Sites Protection Authority v Maurice [1986] FCA 90 14.6.2.3 ACCC see Australian Competition and Consumer Commission Adam v The Queen [1999] HCA 56 4.1.1 Adam v The Queen [2001] HCA 57 2.3.3.3, 11.3.2, 16.2.1 Adelaide Steamship Co Ltd v Spalvins [1998] FCA 144 15.3.2.7 Adler v ASIC [2003] NSWCA 131 7.2.2 Ahern v The Queen [1988] HCA 39 4.4, 8.3.4 Ainsworth v Burden [2005] NSWCA 174 9.1 Al-Khawaja & Tahery v UK [2009] ECHR 110 6.2.5 Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 6.3.1 Alexander v The Queen [1981] HCA 17 13.2.2 Alford v Magee [1952] HCA 3 19.2.3 Alister v The Queen [1984] HCA 85 14.6.3, 14.6.5 Allam v Aristocrat Technologies Australia Pty Ltd [2012] FCAFC 34 10.1.3, 10.1.4 Allam v Aristocrat Technologies Australia Pty Ltd (No 2) [2012] FCAFC 75 10.2.3 Allen v The Queen [2013] VSCA 263 19.1.1 Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 2.3.4.7 Allstate Life Insurance Co v Australasia & New Zealand Banking Group (No 32) [1996] FCA 1331 7.1 Amcor Ltd v Barnes [2011] VSC 341 15.3.5 Ampolex Ltd v Perpetual Trustee (Canberra) Co Ltd & Others (1995) 37 NSWLR 15.3.2.6 Ampolex Ltd v Perpetual Trustee (Canberra) Co Ltd (1996) 40 NSWLR 12 15.3.2.7 Andelman v The Queen [2013] VSCA 25 12.1.3, 19.1.1

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Aouad and El-Zeyat v The Queen [2011] NSWCCA 61 13.1.1 Application concerning s 80 of the Supreme Court Act and Sections 119 and 128 of the Evidence Act [2004] NSWSC 614 14.5.2 Aqua-Marine Marketing Pty Ltd v Pacific Reef Fisheries (Australia) Pty Ltd (No 4) [2011] FCA 578 3.1.4 Ares v Venner [1970] SCR 608 6.1.2 Aristocrat Technologies Australia Pty Ltd v Allam [2013] HCA 21 Preface Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd [2009] FCA 1495 10.1 Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd [2012] HCATrans 296 10.1.4 Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd [2013] HCA 21 Preface Ashburton v Pape [1913] 2 Ch 469 14.1.3 Ashby v Commonwealth (No 2) [2012] FCA 766 14.3 ASIC see Australian Securities and Investments Commission Aslett v The Queen [2006] NSWCCA 49 2.3.4.5 In the Marriage of Atkinson [1997] 136 FLR 347 14.5.3 Attorney General for New South Wales v Smith [1996] 86 A Crim R 308 14.6.2.4 Attorney-General for the Northern Territory v Kearney [1985] HCA 60 15.2.7, 15.3.5 Attorney-General for the Northern Territory v Maurice [1986] HCA 80 15.3.2.1 Attorney General v Chan [2011] NSWSC 1315 9.1 Attorney-General v Hitchcock (1847) 1 Exch 91 11.2, 11.5.1, 11.5.4.1 Australian Automotive Repairers’ Association (Political Action Committee) Inc (in liq) v Insurance (Aust) Ltd [2006] FCAFC 33 11.5.3

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Australian Building and Construction Commissioner v Abbott (No 2) [2011] FCA 308 2.3.4.5 Australian Competition and Consumer Commission v Air New Zealand Limited (No 1) [2012] FCA 1355 10.1.4 Australian Competition and Consumer Commission v Air New Zealand Limited (No 10) [2013] FCA 322 6.1.4, 6.2.2 Australian Competition and Consumer Commission v Allphones Retail Pty Limited (No 3) [2009] FCA 1075 20.2 Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd [1998] FCA 237 15.2.3, 15.2.5 Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd [2006] FCA 21 15.2.1 Australian Competition and Consumer Commission v Bridgestone Corp [2010] FCA 584 18.2.1.2 Australian Competition and Consumer Commission v CC (NSW) Pty Ltd (No 8) [1999] FCA 954 10.2.2 Australian Competition and Consumer Commission v Lux Pty Ltd (2002) 50≈ATR 70 15.3.2.4 Australian Competition and Consumer Commission v Pratt (No 3) [2009] FCA 407 8.2.1, 18.2.1.1 Australian Medic-Care Co Ltd v Hamilton Pharmaceutical Pty Ltd (No 4) [2008] FCA 1038 6.3.1 Australian Rugby Union Ltd v Hospitality Group Pty Ltd (1999) 165 ALR 253 15.2.2 Australian Securities and Investments Commission (ASIC) v Hellicar [2012] HCA 17 2.2.1, 17.2.1 Australian Securities and Investments Commission (ASIC) v Rich [2005] NSWCA 152 7.3.2 Australian Securities and Investments Commission (ASIC) v Rich [2005] NSWSC 417 3.1.4, 7.1

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Australian Securities and Investments Commission (ASIC) v Sigalla (No 2) [2010] NSWSC 792 16.5.4.3 Australian Securities and Investments Commission (ASIC) v Southcorp Ltd [2003] FCA 804 15.3.2.4 Australian Securities Commission v AS Nominees Ltd [1995] FCA 1460 2.2.1 AWB Ltd v Cole [2006] FCA 571 15.2.2 AWB Ltd v Cole (No 5) [2006] FCA 1234 15.2.1, 15.2.5, 15.3.2.3 Aytugrul v The Queen [2012] HCA 15 1.1.1.1, 16.2, 16.2.1, 16.2.2, 18.1, 18.1.3 Azizi v The Queen [2012] VSCA 205 6.2.5.1 Azzi v The Queen [2013] NSWCCA 249 10.1.2, 10.1.4, 12.2.1 Azzopardi v The Queen [2001] HCA 25 2.2.3.1, 2.2.3.2, 14.5.1 B v The Queen [1992] HCA 68 12.4.3 Bailiff v The Queen [2011] ACTCA 7 3.3.1 Baker v Campbell (1983) 153 CLR 52 14.1.3 Baker v The Queen [1989] 1 NZLR 738 5.3.2 Baker v The Queen [2012] HCA 27 1, Preface, 5.3.2, 6.1.2, 6.2.4, 6.2.5.1 Bannon v The Queen [1995] HCA 27 6.2.5.1, 6.2.5.3 Bass v TCN Channel Nine Pty Ltd [2006] NSWCA 343 9.2 BBH v The Queen [2012] HCA 9 12.1.4 Beamish v The Queen [2005] WASCA 62 6.3.1 Bective Station Pty Limited v AWB (Australia) Limited [2006] FCA 1596 10.2.1, 10.2.2 Benecke v National Australia Bank (1993) 35 NSWLR 110 15.3.2.1 Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 11.4 Bishop v The Queen [2013] VSCA 273 12.3.2 Blomfield v Nationwide News Pty Ltd [2009] NSWSC 977 10.2.3 Blunt v Park Lane Hotel [1942] 2 KB 253 14.5.2 Bodnar v Townsend [2003] TASSC 148 16.5 Bodney v Bennell [2008] FCAFC 63 7.2.3 Boniface v Smec Holdings Limited [2006] NSWCA 351 10.1.4

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Boyce v Cafred Pty Ltd (1984) 4 FCR 367 10.2.2 BP v The Queen [2010] NSWCCA 303 12.1.4 Bradford & Bingley plc v Rashid [2006] 4 All ER 705 14.7 Bridges v Pelly [2001] NSWCA 31 10.1.4 Briginshaw v Briginshaw [1938] HCA 34 1.2.3, 17.2.1 Bromley v The Queen [1986] HCA 49 19.2.2 Brown v New South Wales Trustee and Guardian [2012] NSWCA 431 17.2.1 Browne v Dunn (1894) 6 R 67 2.3.4.7, 14.1.1 BRS v The Queen [1997] HCA 47 12.4.3 Buckley v Rice Thomas (1554) 75 ER 182 7.2.2 Bull v The Queen [2000] HCA 24 10.3.1 Bullcoming v New Mexico, 131 S Ct 2705 (2011) 6.3.1 Bunning v Cross [1978] HCA 22 8.2.4, 16.5, 16.5.3.1, 16.5.4.1, 16.5.4.3 Burke v The Queen [2013] VSCA 351 2.2.3.2 Burmah Oil v Bank of England [1980] AC 1090 14.6.2.1 Butcher v Lachlan Elder Realty [2002] NSWCA 237 1.3.2 Butera v DPP [1987] HCA 58 2.3.1, 3.2.1, 3.2.1.2 C v The Queen (1993) 60 SASR 467 11.8 Cabal v United Mexican States [2001] FCA 427 1.2.1 Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2007] FCAFC 70 7.3.1, 16.2.5 Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2009] FCAFC 8 1.2.3 Cain v Glass (No 2) (1985) 3 NSWLR 230 14.6.2.4 Calcraft v Guest [1898] 1 QB 759 14.1.3 Cantarella Bros Pty Ltd v Andreasen [2005] NSWSC 579 10.1.4 Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 18.1.5 Carnell v Mann [1998] FCA 1566 15.2.1 Carter v Managing Partner, Northmore Hale Davy & Leake [1994] HCA 33; (1994) 183 CLR 121 15.1, 15.3.3

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Caterpillar Inc v John Deere Ltd (No 2) (2000) 181 ALR 108 6.2.2 CEG v The Queen [2012] VSCA 55 12.1.4 CGL v Director of Public Prosecutions [2010] VSCA 26 12.1.4 Chaina v Presbyterian Church (NSW) Property Trust (No 1) [2012] NSWSC 1476 20.2 Chamberlain v The Queen (No 2) [1984] HCA 7 16.4.3, 17.2.2, 19.1.2 Channon v The Queen (1978) 33 FLR 433 7.2.2 Chen v City Convenience Leasing Pty Ltd [2005] NSWCA 297 15.3.2.6 Chief Executive Officer of the Australian Customs Service v Karam [2009] NSWSC 1223 10.1.2 Choi v The Queen [2007] NSWCCA 150 19.2.1 Clark v Stingel [2007] VSCA 292 2.2.1, 2.2.2 Clarke v Great Southern Finance Pty Ltd [2012] VSC 260 15.3.4 Clarke v The Queen [2007] HCA 39 8.2.3 Cleland v The Queen [1982] HCA 67 16.5.2.3, 16.5.3.1 Coates v The Queen [2005] HCA 1 8.2.4, 8.3.3, 11.3.4, 11.5.1, 11.5.3, 11.5.4.1 Coco v The Queen [1994] HCA 15 16.5.2.2 Combined Insurance Company of America v Trifunovski (No 4) [2011] FCA 271 10.1.1 Commissioner, Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3 14.1.2, 14.1.3, 15.2.8 Commissioner of Patents v Sherman [2008] FCAFC 182 1.2.1 Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86 15.3.2.6 Commonwealth v McLean (1996) 41 NSWLR 389 16.2.2 Commonwealth v Northern Land Council [1993] HCA 24 14.6.2.1, 14.6.2.3, 14.6.5 Commonwealth v Vance [2005] ACTCA 35 15.2.7 Comptroller of Customs v Western Lectric [1966] AC 367 8.3.1 Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd [2012] FCA 47 6.2.2

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Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs [1985] HCA 6 14.5.2 Conway v The Queen [2000] FCA 461 6.2.5, 6.2.5.2 Conway v The Queen [2002] HCA 2 19.2.1 Coombe v Bessell [1994] TASSC 66 11.8 Cordelia Holdings Pty Ltd v Newkey Investment Pty Ltd [2002] FCA 1018 3.1.4 Cornwell v Riley [1999] FCA 727 10.1.4 Cornwell v The Queen [2007] HCA 12 1.3.2, 14.5.5 Coyne v ANI Corporation Ltd NSWSC, unreported, 7 April 1998 6.3.1 Crabbe v The Queen (1984) 56 ALR 733 12.3.2 Craig v The Queen [1933] HCA 41 13.1.2 Crampton v The Queen [2000] HCA 60 19.1.2, 19.2.2 Crawford v Washington, 541 US 36 (2004) 6.1.1, 6.2.5 Crofts v The Queen [1996] HCA 22 19.1.2 CV v Director of Public Prosecutions [2014] VSCA 58 10.1.2, 10.2.2 Cvetkovic, Dragan v The Queen [2010] NSWCCA 329 6.2.5, 6.3.3 CW v The Queen [2010] VSCA 288 10.2.2 D v NSPCC [1978] AC 171 14.6.2.4 D’Ambrosio v Berkeley Challenge Pty Ltd [1997] ACTSC 35 15.2.3 Daniels Corporation International Pty Ltd v ACCC [2002] HCA 49 14.1.1 Daniels v Western Australia [2000] FCA 413 6.3.1, 6.3.2 DAO v The Queen [2011] NSWCCA 63 12.1.3 Dasreef Pty Ltd v Hawchar [2011] HCA 21 1.3.2, 7.3.2, 7.3.3 Daubert v Merrell Dow Phamaceuticals Inc, 509 US 579 (1993) 7.2.2, 7.3.2 Davidson v Quirke (1923) 42 NZLR 552 5.2.8 Davis v The Queen [2001] HCA 25 2.2.3.1, 2.2.3.2 Davis v Washington, 547 US 813 (2006) 6.3.1 Day v Couch [2000] NSWSC 230 6.3.3 De Silva v The Queen [2013] VSCA 339 11.8

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Decker v State Coroner (NSW) [1999] NSWSC 369 1.2.1 Dhanhoa v The Queen [2003] HCA 40 1.2.2, 13.1.3 Di Carlo v United States, 6 F 2d 364 (1925) 5.2.3 Dietrich v The Queen [1992] HCA 57 16.4.3, 19.2.2 Dilosa v Latec Finance Pty Ltd [1966] 1 NSWR 259 2.2.1 Dingwall v The Commonwealth [1992] FCA 627 15.3.2.4 Director of Public Prosecutions (NSW) v AM [2006] NSWSC 348 16.5.3.2 Director of Public Prosecutions (NSW) v Gamelis [2010] NSWSC 787 18.1.1 Director of Public Prosecutions v Attalla [2001] NSWCA 171 8.2.4 Director of Public Prosecutions v Carr [2002] NSWSC 194 16.5.2.3 Director of Public Prosecutions v Coe [2003] NSWSC 363 [12] 16.5.3.2 Director of Public Prosecutions v Cook [2006] TASSC 75 8.2.1 Director of Public Prosecutions v Curran (Ruling No 2) [2011] VSC 280 2.3.3.2 Director of Public Prosecutions v Darby [2002] NSWSC 1157 16.5.2.1 Director of Public Prosecutions v Farquharson (No 2) (Ruling No 4) [2010] VSC 210 3.3.4.1.1 Director of Public Prosecutions v Haddara (Ruling No 1) [2012] VSC 276 8.2.4 Director of Public Prosecutions v Hicks (Ruling No 2) [2014] VSC 153 8.2.4 Director of Public Prosecutions v Lynch [2006] TASSC 89 13.2.3 Director of Public Prosecutions v Marijancevic [2011] VSCA 355 16.5.4.1, 16.5.4.2 Director of Public Prosecutions v McEwan, Robb & Dambitis (Ruling No 2) [2012] VSC 170 16.4.1 Director of Public Prosecutions v McRae [2010] VSC 114 2.3.3.3 Director of Public Prosecutions v Moore [2003] VSCA 90 16.5.2.3, 16.5.3.3 Director of Public Prosecutions v Nicholls [2001] NSWSC 523 5.2.6

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Director of Public Prosecutions v Tran (Ruling No 3) [2013] VSC 183 2.3.3.3 Director of Public Prosecutions v Zierk [2008] VSC 184 16.5.2.3 Director of Public Prosecutions (Vic) v Nicholls [2010] VSC 397 6.2.5 Director of Public Prosecutions (Vic) v Williams (Ruling No 1) [2010] VSC 34 4.1.2 Divall v Mifsud [2005] NSWCA 447 15.3.2.7 Doggett v The Queen [2001] HCA 46 19.1.2 Doklu v The Queen [2010] NSWCCA 309 8.3.3 Domican v The Queen [1992] HCA 13 13.1.3, 19.2.2 DPP see Director of Public Prosecutions Driscoll v The Queen [1977] HCA 43 16.2 DSJ v The Queen [2012] NSWCCA 9 10.2.2 Duncan v Cammell Laird [1942] AC 624 14.6.2.1, 14.6.2.2 Dupas v The Queen [2010] HCA 20 12.4.1, 12.4.2, 13.2.3 Dupas v The Queen [2012] VSCA 328 1.2.2, 1.3.2, 11.1, 12.4.2, 13.1.2, 13.2.3, 16.2.1 Dyers v The Queen [2002] HCA 45 2.2.2, 2.2.3.1 Dyldam Developments Pty Ltd v Jones [2008] NSWCA 56 16.2.5 Eastman v The Queen [1997] 76 FCR 9 16.5.6 Eastman v The Queen [1997] FCA 548 12.3.2 Easwaralingam v DPP [2010] VSCA 353 6.2.1 Edmund-Jones Pty Ltd v Australian Women’s Hockey Association Inc [1999] NSWSC 285 6.3.1, 20.3 Edwards v The Queen [1992] HCA 19 19.2.2 Edwards v The Queen [1993] HCA 6 19.2.2 Elias v The Queen [2006] NSWCCA 365 10.1.1 Ellis v The Queen [2004] HCA Trans 488 10.2.3, 12.1.3 Em v The Queen [2007] HCA 46 8.2.4, 16.5.5 Environmental Protection Authority v Caltex [1993] HCA 74 14.5.6 EPA v Caltex [1993] HCA 74 14.5.1

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Epeabaka v Minister for Immigration &  Multicultural Affairs (1997) 76 FLR 1011.2.1 ES v The Queen (No 1) [2010] NSWCCA 197 16.2.2 Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth (1999) 201 CLR 49 15.2.2 Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67 1, 14.1.4, 15.2.5 Evans v The Queen (2007) 235 CLR 521 3.3.4.1.1 Evans v The Queen [2007] HCA 59 3.3.4.1, 3.3.4.1.2, 16.4.1, 19.1.1 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46 15.3.2.8 F v The Queen (1995) 83 A Crim R 502 11.8 Farquharson v The Queen [2012] VSCA 296 3.3.4.1.1 Farrell v The Queen [1998] HCA 50 11.8 Fattal v The Queen [2013] VSCA 276 16.4.1 FB v The Queen [2011] NSWCCA 217 2.3.2 Fenwick v Wambo Coal Pty Ltd (No 2) [2011] NSWSC 353 15.3.2.7 Festa v The Queen [2001] HCA 72 12.4.3, 13.2.3 Foster v The Queen [1992] HCA 63 8.2.4 Francis v The Queen [2009] CCJ 9 1.3.3 Francis v The Queen [2009] CCJ 11 8.2.4, 8.3.2 Frye v United States, 293 F 1013 (1923) 7.3.2 Fukofuka v The Queen [2013] NZSC 77 13.1.3 Galvin v The Queen [2006] NSWCCA 66 16.2.2 Gardiner v The Queen [2006] NSWCCA 190 10.1.1, 10.2.1 GBF v The Queen [2010] VSCA 135 12.1.4 General Medical Council v Meadow [2006] EWCA Civ 1390 7.3.3 General Television Corporation v DPP [2008] VSCA 49 12.4.1 George v Rockett [1990] HCA 26 16.5.2.2

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Gilham v The Queen [2012] NSWCCA 131 2.3.3.3, 7.2.2, 16.4.1 Gillies v Downer EDI Ltd [2010] NSWSC 1323 15.3.2.4 Gipp v The Queen [1998] HCA 21 12.4.2, 12.4.3 Goldberg v Ng [1995] HCA 39 15.3.2.1, 15.3.2.7 Goldsmith v Sandilands [2002] HCA 31 11.1, 11.3.4, 11.5, 11.5.1, 11.5.4.4 Gordon (Bankrupt), Official Trustee in Bankruptcy v Pike (No 1) [1995] FCA 1514 16.2.2 GPI Leisure Corporation v Yuill (1997) 42 NSWLR 225 14.7 Graham v The Queen [1998] HCA 61 6.2.3, 11.6.2.3, 20.4 Granada Tavern v Smith [2008] FCA 646 1.2.3 Great Southern Managers Australia Ltd v Clarke [2012] VSCA 207 15.3.4 Green v The Queen [1971] HCA 55 17.2.2 Greensill v The Queen [2012] VSCA 306 19.1.2 Gregory v The Queen [1983] HCA 24 10.3.3 Griffin v Pantzer [2004] FCAFC 113 1.2.1 Groundstroem v The Queen [2013] NSWCCA 237 19.1.2 Guide Dog Owners’ & Friends’ Association Inc v Guide Dog Association of New South Wales & ACT [1998] FCA 480 7.1, 16.2.2 Habib v Nationwide News Pty Ltd [2010] NSWCA 34 8.2.2, 8.3.4 Haddara v The Queen [2014] VSCA 100 Preface Hadgkiss v CFMEU [2006] FCA 941 2.3.3.3 Hamilton v Oades [1989] HCA 21 14.5.2 Hammoud Brothers Pty Ltd v Insurance Australia Ltd [2004] NSWCA 366 17.2.1 Hannes v Director of Public Prosecutions (No 2) [2006] NSWCCA 373 7.2.2, 7.3, 7.3.2 Hansen Beverage Company v Bickfords (Australia) Pty Ltd [2008] FCA 406 6.3.1 Hardy v Merrill 56 NH 227 (1875) 7.2.1 Harris v The Queen [2005] NSWCCA 432 6.2.5.2

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Hawker v The Queen [2012] VSCA 219 1.2.3, 2.1.2, 6.1.4 Heatherington v The Queen [1994] HCA 19 8.3.3 HG v The Queen [1999] HCA 2 7.2.2, 7.3.1, 11.3.3, 11.8 Hibble v B [2012] TASSC 59 16.5.4.2 Higgins v The Queen [2007] NSWCCA 56 8.2.2 Hill v The Queen [2007] HCA 39 8.2.3 Hinneberg v Brannaghan [2009] VSC 356 17.2.3 HML v The Queen [2008] HCA 16 12.1.4, 12.4.3, 17.2.2 Hoch v The Queen [1988] HCA 50 12.1.4 Holder v Searle [1998] FCA 1775 6.3.2 Hollington v Hewthorn [1943] KB 587 9.2 Honeysett v The Queen [2013] NSWCCA 135 7.2.3 Horman v Bingham [1972] VR 29 18.1.4 Horne v Comino [1966] Qd R 202 8.3.1 Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd [2008] FCA 369 5.2.3 Hudson v The Queen [2011] NZSC 51 10.1.3 Huges (a Pseudonym) v The Queen [2013] VSCA 338 12.3.2, 12.4.2, 20.2 Huggins v The Queen [2004] UKPC 7 1.3.3, 8.1.2 Hughes Aircraft Systems International v Airservices Australia (No 3) [1997] FCA 558 16.2.4 Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2 5.3.2 Ibrahim v Pham [2007] NSWCA 215 10.2.2 ICI Australia Operations Pty Ltd v WorkCover Authority (NSW) [2004] NSWCA 55 18.1 Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 123 7.2.2, 15.3.5 The Ikarian Reefer [1993] 2 Lloyd’s Rep 68 7.3.3 Inspector Dieter Franke v Dromore Fresh Produce Pty Ltd [2004] NSWCIMC 28 6.2.5.4 Interchase Corporation Ltd v Grosvenor Hill (Qld) Pty Ltd [No 1] [1999] 1 Qd R 141 15.3.2.4

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International Finance Trust Company Ltd v NSW Crime Commission [2008] NSWCA 291 6.3.4 Isherwood v Tasmania [2010] TASCCA 11 2.3.3.2 ISJ v The Queen [2012] VSCA 321 11.3.2, 16.2.2 J v The Queen (1994) 75 A Crim R 522 11.8 Jacara v Perpetual Trustees WA [2000] FCA 1886 10.1.1, 10.1.4, 10.2.2 Jackson v Lithgow City Council [2008] NSWCA 312 17.2.1 Jackson v Lithgow City Council [2010] NSWCA 136 7.1 Jackson v The Queen [2005] NSWCCA 411 4.1 Jacobs v The Queen [2000] WASCA 142 8.3.3 Jardein Pty Ltd v Stathakis [2007] FCAFC 148 2.3.4.7 JB v The Queen [2012] NSWCCA 12 8.2.4 Johnson v Page [2007] FamCA 1235 17.2.1 Johnston v The Queen [2012] VSCA 271 16.3 Jones v Dunkel [1959] HCA 8 2.2.1, 2.2.2, 2.3.4.7 Jones v The Queen [2005] NSWCCA 443 8.1.2 Joyce v Baird and Reynolds [2013] ACTSC 79 6.3.1 Jung v Son [1998] NSWSC 698 8.2.2 K v The Queen (1997) 22 Fam LR 592 17.2.1 Kamleh v The Queen [2005] HCA 2 5.2.6, 5.3.2 Kang v Kwan [2001] NSWSC 698 15.3.5 Kaperonis v GIO of NSW NSWSC, unreported, 2 February 1996 6.3.1 Kelly v The Queen [2004] HCA 12 8.3.3 Kent v Wotton & Byrne Pty Ltd [2006] TASSC 8 18.1.3 Kessing v The Queen [2008] NSWCCA 310 6.3.2 Khamis v The Queen [2010] NSWCCA 179 2.3.4.7 Kilby v The Queen [1973] HCA 30 11.9.1 Kingham v Sutton (No 3) [2001] FCA 1117 3.1.4

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Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 2.1.4, 20.3 Kirk v Industrial Relations Commission [2010] HCA 1 2.1.4, 20.3 Klewer v Walton [2003] NSWCA 308 2.3.3.3, 16.3 KMJ v Tasmania [2011] TASCCA 7 16.2.1 Koninklijke Philips Electronics NV v Remington Products Australia Pty Ltd [2000] FCA 96 16.2.5 Kozul v The Queen [1981] HCA 19 3.3.4.1 KRM v The Queen [2001] HCA 11 12.4.3 Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11 2.2.1 Kuligowski v Metrobus [2004] HCA 34 17.2.1 La Trobe Capital & Mortgage Corporation Limited v Hay Property Consultants Pty Ltd [2011] FCAFC 4 7.1, 16.2.2, 16.2.4 Lampson v McKendry [2001] NSWSC 373 15.3.2.4 Lane v The Queen [1996] FCA 1478 19.1.1 Laws v Australian Broadcasting Tribunal [1990] HCA 31 18.2.1.1 Lee v The Queen [1998] HCA 60 5.2.2, 5.2.5, 5.4.1, 5.4.2 Lee v The Queen [2009] NSWCCA 259 2.3.3.3 Legal Services Board v McGrath [2010] VSC 266 9.2 Legal Services Board v McGrath (No 2) [2010] VSC 332 9.2 L’Estrange v The Queen [2011] NSWCCA 89 2.3.4.4 Lewincamp v ACP Magazines Ltd [2008] ACTSC 69 6.3.1 LGM v CAM [2011] FamCAFC 195 14.1.3, 16.5 Libke v The Queen [2007] HCA 30 2.3.4.4 Line v Taylor (1862) 3 F & F 731 3.3.3 Liquorland (Australia) Pty Ltd v Anghie [2003] VSC 73 15.3.2.6 Lithgow City Council v Jackson [2011] HCA 36 1.3.2, 4.1.3, 5.2.2, 6.2.1, 6.3.1, 7.1, 7.2.1, 7.2.2

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Longman v The Queen [1989] HCA 60 19.1.2, 19.2.2 Lord Ashburton v Pape [1913] 2 Ch 469 14.1.3 Love v Roads Corporation [2014] VSCA 30 7.2.3 Lowery and King v The Queen [1974] AC 85 12.3.3 MA v The Queen [2013] VSCA 20 7.3.1, 11.8 Macrae v The Queen (1995) 80 A Crim R 380 4.1.2, 18.2.2 Macrae v The Queen [1995] VSC 108 5.3.2 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 7.3.3 Mallard v The Queen [2005] HCA 68 8.3.3 Mann v Carnell [1999] HCA 66 14.1.4, 15.3.2.1, 15.3.2.6, 15.3.2.7 Marks v The Queen [2007] HCA 39 8.2.3 In the Marriage of Atkinson [1997] 136 FLR 347 14.5.3 Marsden v Amalgamated Television Services [2000] NSWSC 55 6.3.3 Martin v NSW [2002] NSWCA 337 10.2.1 Martin v Tasmania [2008] TASSC 66 10.1.4 Martin v The Queen [2013] VSCA 377 19.1.1 Matthews v SPI Electricity Pty Ltd [2013] VSC 33 15.3.2.4 Matthews v SPI Electricity Pty Ltd (Ruling No 17) [2013] VSC 146 2.3.4.5 Matthews v SPI Electricity Pty Ltd (Ruling No 21) [2013] VSC 219 16.2.5 Matthews v SPI Electricity Pty Ltd (Ruling No 34) [2014] VSC 40 3.2.3 Matthews v The Queen [2013] NSWCCA 187 19.1.2 McCarthy and Ryan (1993) 71 A Crim R 395 4.2.3 McDermott v The King [1948] HCA 23 8.2.4 McGregor v Stokes [1952] VLR 347 5.2.8 McKinney v The Queen [1991] HCA 6 8.3.3, 19.2.2 McMahon v John Fairfax Publications Pty Ltd (No 5) [2012] NSWSC 218 11.4 McNeill v The Queen [2008] FCAFC 80 1.3.1 Mead v Mead [2007] HCA 25 14.1.3 Melbourne v The Queen [1999] HCA 32 12.4.3

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Melendez-Diaz v Massachusetts, 3 129 S Ct 2527 (2009) 6.3.1 Meteyard v Love [2005] NSWCA 444 1.3.2 Mickelberg v Director of Perth Mint [1986] WAR 365 9.2 Mickelberg v The Queen [2004] WASCA 145 9.2 Miller v Minister of Pensions [1947] 2 All ER≈372 17.2.2 Minister for the Environment, Heritage and the Arts v PGP Developments Pty Ltd [2010] FCA 58 18.2.1.3 ML v The Queen [2011] VSCA 193 8.2.1 Montgomery v The Queen [2013] NSWCCA 73 11.4 Morley v Australian Securities and Investment Commission [2010] NSWCA 331 17.2.1 Mulcahy v R [2012] ACTCA 3 5.4.4 Murdoch (a Pseudonym) v The Queen [2013] VSCA 272 12.1.4 Murphy v The Queen [1989] HCA 28 11.8 Murphy v Waterfront Commission, 378 US 52 (1964) 14.5.1 MWJ v The Queen [2005] HCA 74 2.3.4.7 Myers v DPP [1965] AC 1001 6.1.2 NAM v The Queen [2010] VSCA 95 12.1.4 Nardone v United States, 308 US 338 (1939) 16.5.3.2 National Australia Bank v Rusu [1999] NSWSC 539 3.1.4 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 17.2.1 New Cap Reinsurance Corp Ltd (in liq) v Renaissance Reinsurance [2007] NSWSC 258 15.2.3 New South Wales Crime Commission v Vu [2009] NSWCA 349 6.3.4 New South Wales v Jackson [2007] NSWCA 279 15.2.1 Nguyen v Cosmopolitan Homes [2008] NSWCA 246 17.2.1 Nicholls v The Queen [2005] HCA 1 8.2.4, 8.3.3, 11.3.4, 11.5.1, 11.5.3, 11.5.4.1 Nix v Williams, 467 US 431 (1984) 16.5.3.2 NOM v Director of Public Prosecutions [2012] VSCA 198 17.2.1

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Nominal Defendant v Clements [1960] HCA 39 11.6.2.2 Northern Territory v GPAO [1998] HCA 8 1.1.2.2 NS v The Queen [2012] NSWCCA 9 10.2.2 OAE v The Queen [2008] HCA 16 12.1.4, 12.4.3 O’Keefe v The Queen [2009] NSWCCA 121 12.1.4 O’Meara v Dominican Fathers [2003] ACTCA 24 3.1.4 Ordukaya v Hicks [2000] NSWCA 180 6.2.2, 16.2.2 Osland v Secretary to the Department of Justice [2008] HCA 37 15.3.2.7 Pacific Resources International Pty Ltd v UTI (Aust) Pty Ltd [2012] NSWSC 1083 8.1.1 Paino v Paino [2008] NSWCA 276 7.2.2 Palmer v The Queen [1998] HCA 2 2.3.4.4, 4.3.3, 11.3.4, 11.5.1 Papakosmas v The Queen [1999] HCA 37 1.3.2, 4.1.1, 4.1.3, 4.3.3, 5.4.4, 6.1.4, 16.2.1, 16.2.2, 16.3 Parker v Comptroller-General of Customs [2009] HCA 7 16.5.2, 16.5.2.2 Parker v The Queen [1912] HCA 29 7.3.2 Parkes v The Queen [1976] 3 All ER 380 5.2.6 Partington v The Queen [2009] NSWCCA 232 7.1 Patel v The Queen [2012] HCA 29 16.2.2 Pavic v The Queen [1998] HCA 1 8.2.4, 16.5.5, 16.5.6 Pavitt v The Queen [2007] NSWCCA 88 11.6.2.2, 16.5.6 Payne v Parker [1976] 1 NSWLR 191 2.2.1 Peacock v The Queen [2008] NSWCCA 264 11.1 People v Alcalde 148 P 2d 627 (1944) 5.3.2 Perry v The Queen [1982] HCA 75 12.1.2 Petty and Maiden v The Queen [1991] HCA 34 8.1.2 Pfennig v The Queen [1995] HCA 7 12.1.3, 12.1.4, 16.2.3

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PGM v The Queen [2006] NSWCCA 310 12.3.2 Phillips v The Queen [1985] HCA 79 12.2.2, 12.4.2 Phillips v The Queen [2006] HCA 4 4.3.3, 12.1.4 Piddington v Bennett and Wood Pty Ltd [1940] HCA 2 11.1, 11.5.4.4 Plumbing and Allied Services Union of Australia v ACCC [2007] FCAFC 132 [38] 17.2.1 PNJ v Director of Public Prosecutions [2010] VSCA 88 12.1.4 Pollard v The Queen [1992] HCA 35 16.5.4.2 Pollard v The Queen [1992] HCA 69 8.2.4, 8.3.3, 16.5.4.2 Pollitt v The Queen [1992] HCA 35 1.1.2, 1.1.2.1, 6.3.2, 19.2.2 PQ v Australian Red Cross Society [1992] 1 VR 19 5.4.1, 7.3.2 Pratt Holdings Pty Ltd v Federal Commissioner of Taxation [2004] FCAFC 122 14.1.1, 15.2.2, 15.2.5 Price v Torrington (1703) 1 Salk 285 6.2.5.4 Prothonotary of the Supreme Court of New South Wales v Livanes [2012] NSWCA 325 9.2 PT v The Queen [2011] VSCA 43 19.1.2 Qantas Airways Ltd v Gama [2009] FCAFC 69 17.2.1 Queen v … see R v …; The Queen v … Queensland Bacon Pty Ltd v Rees [1966] HCA 21 16.5.2.2 Question of Law (No 1) (1998) 70 SASR 281 16.5.3.3 Question of Law (No 1 of 1993) (1993) 59 SASR 214 19.2.1 Quick v Stoland Pty Ltd [1998] FCA 1200 5.4.1, 5.4.4 R v A [2001] UKHL 25 10.3.3 R v Abadom [1983] 1 All ER 364 7.3.2 R v Acuna [2008] VSC 165 4.1.2 R v Ahola (No 2) [2013] NSWSC 699 5.3.2 R v Amad [1962] VR 545 8.2.4 R v Ambrosoli [2002] NSWCCA 386 6.2.5.1

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R v Ames [1964-65] NSWR 1489 3.2.2, 16.4.1 R v Andrews [1987] AC 281 6.2.5.2 R v Anunga (1976) 11 ALR 412 8.2 R v Apostilides [1984] HCA 38 2.3.2 R v Astill (Robert) NSWCCA, unreported, 17 July 1992 16.4.1 R v B (CM) (1991) 92 Cr App R 36 12.1.3 R v B (KG) [1993] 1 SCR 740 6.1.2 R v Barbaro and Rovere [2000] NSWCCA 192 5.2.6, 13.1.1 R v BD (1997) 94 A Crim R 131 16.2.2 R v BDX [2009] VSCA 28 7.3.1 R v Bedingfield (1879) 14 Cox CC 341 6.1.2, 6.2.5.2 R v Bell [2002] NSWCCA 195 10.2.1 R v Bell; Ex parte Lees [1980] HCA 26 15.3.1 R v Benz [1989] HCA 64 5.2.8 R v Bikic [2001] NSWCCA 537 14.5.3 R v Bland [1987] 2 SCR 398 7.3 R v Blick [2000] NSWCCA 61 16.4.1 R v Bormann [2010] ACTSC 145 8.1.1, 8.2.3, 16.5 R v Bourchas [2002] NSWCCA 373 1.2.1 R v Boyes (1861) 1 B & S 311 14.5.3 R v BP [2010] NSWCCA 303 12.1.4 R v Braedon [2000] NTSC 68 16.5.2.1, 16.5.3.2 R v Braham and Mason [1976] VR 547 15.2.1 R v Broyles [1991] 3 SCR 595 16.5.6 R v Burlingham [1995] 2 SCR 206 16.5.3.2 R v Burt [2000] 1 Qd R 28 16.5.6 R v Burton [2013] NSWCCA 335 10.3.1, 10.3.3 R v BWT [2002] NSWCCA 60 19.1.2 R v Cakovski [2004] NSWCCA 280 10.1.4 R v Carpenter [2011] ACTSC 71 13.2.2 R v Carroll [2002] HCA 55 9.2 R v Cassar and Sleiman (No 17) [1999] NSWSC 436 3.2.1.2 R v Cassar and Sleiman (No 28) [1999] NSWSC 651 3.1.3 R v Cassar (Judgment No 12) [1999] NSWSC 352 11.6.2.3 R v Ceniccola [2010] NSWSC 1554 12.3.1 R v CH and JW [2010] ACTSC 75 10.3.3 R v Chami, Skaf, Ghanem and Skaf [2004] NSWCCA 36 16.4.1

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R v Chen [2002] NSWCCA 174 11.3.3 R v Christie [1914] AC 545 16.2, 16.2.1 R v CK [2013] ACTSC 251 16.5.3.2 R v Cobham [2005] ACTSC 102 10.3.3 R v Collins [1987] 1 SCR 265 16.5.3.2, 16.5.4 R v Cox and Railton (1884) 14 QBD 153 15.3.5 R v Dalley [2002] NSWCCA 284 16.5.3.3, 16.5.4.1 R v Damic [1982] 2 NSWLR 750 2.3.2 R v Darmody [2010] VSCA 41 6.2.5 R v Darwiche [2006] NSWSC 924 13.2.2 R v DBG [2002] NSWCCA 328 11.6.2.3 R v De Angelis (1979) 20 SASR 288 10.3.3 R v De Saint-Aromain (Ruling No 1) [2013] VSC 398 7.2.2 R v Debono [2012] VSC 476 14.6.2 R v Derby Magistrates’ Court; Ex parte B [1995] 4 All ER 526 15.3.3 R v Dolan (1992) 58 SASR 501 12.4.3 R v Dupas (No 3) [2009] VSCA 202 12.4.1 R v Eastman [1995] ACTSC 59 5.2.3, 6.2.1 R v Edwards (1986) 20 A Crim R 463 11.8 R v El-Azzi [2004] NSWCCA 455 12.2.2, 12.4.2 R v El-Kheir [2004] NSWCCA 461 12.3.2 R v Ellis [2003] NSWCCA 319 12.1.1, 12.1.3 R v ERJ [2010] VSCA 61 10.3.3 R v Farquharson [2009] VSCA 307 3.3.4.1.1 R v Fernando [2009] ACTSC 137 10.3.3 R v Fieldman (Ruling No 1) [2010] VSC 257 16.2.2 R v Firman (1989) 52 SASR 391 5.2.8 R v Fletcher [2005] NSWCCA 338 12.1.3 R v Flood [1999] NSWCCA 198 19.1.1 R v Forbes [2009] ACTSC 1 13.1.2 R v Ford [2009] NSWCCA 306 12.1.4 R v Frangulis [2006] NSWCCA 363 8.2.2 R v GAC [2007] NSWCCA 315 16.4.2 R v GH [2000] FCA 1618 8.2.1 R v Glennon [1992] HCA 16 12.4.1 R v Godoy [1999] 1 SCR 311 16.5.2.1 R v Grant 2009 SCC 32 16.5.3.2, 16.5.4 R v Gun; Ex parte Stephenson (1977) 17 SASR 165 10.3.3 R v H [1995] 2 A 12.1.3 R v Haddad and Treglia [2000] NSWCCA 351 16.5.3.3

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R v Hagarty [2004] NSWCCA 89 17.2.2 R v Hall (1994, Issue 140) The Weekly Telegraph, 140 16.5.6 R v Handy [2002] 2 SCR 908 10.2.2, 12.1.2, 12.1.3 R v Hannes [2000] NSWCCA 503 5.2.7 R v Harker [2004] NSWCCA 427 10.2.1 R v Hebert [1990] 2 SCR 151 16.5.6 R v Helmhout (No 2) [2000] NSWSC 225 8.2.2 R v Hemmelstein [2001] NSWCCA 220 6.2.4 R v Hendrie (1985) 37 SASR 581 5.3.2 R v Henning (1990) NSW Court of Criminal Appeal, unreported, 11 May 1990 10.3.3 R v Horncastle & Ors [2009] UKSC 14 6.2.5 R v Horton (1998) 45 NSWLR 426 8.2.1 R v Howard [1989] 1 SCR 1337 1.1.2, 7.3.2 R v Ireland [1970] HCA 21 3.2.2, 16.5.3.1, 16.5.3.3, 16.5.4 R v J-L J [2000] 2 SCR 600 7.3.2 R v Jarrett (1994) 62 SASR 443 7.3.3 R v Johnson [1988] 1WLR 1377 14.6.2.4 R v Johnston [2012] ACTSC 89 10.1.4 R v Kaplan [2005] VSCA 316 6.3.1 R v Kearley [1992] 2 AC 228 5.2.8 R v Khan [1990] 2 SCR 531 6.1.2 R v Klobucar [2013] ACTSC 118 9.1 R v Kneebone (1999) 47 NSWLR 450 2.3.3.3 R v Kuzmanovic [2005] NSWSC 771 6.2.5.2 R v Le [2001] NSWSC 174 2.3.3.3 R v Leatham (1861) 8 Cox CC 498 16.5 R v Lee [1950] HCA 25 8.2.4 R v Leung & Wong [1999] NSWCCA 287 7.2.3 R v Leung [2012] NSWSC 1451 8.2.4 R v Liew [1999] 3 SCR 227 16.5.6 R v Lisoff [1999] NSWCCA 364 16.2.2 R v LL [1998] NSWSC 1027 8.2.2 R v Lobban [2000] SASC 48 16.4.3, 16.5.3.3 R v Lock (1997) 91 A Crim R 356 16.4 R v Lockyer (1996) 89 A Crim R 457 10.2.2 R v Lodhi [2006] NSWSC 648 5.2.6, 6.2.5.1 R v Lowe [1997] 2 VR 465 16.5.6 R v LRG [2006] VSCA 288 17.2.2 R v M [2002] QCA 486 16.5.6 R v Madigan [2005] NSWCCA 170 16.4.2 R v Maguire [1992] 1 QB 936 14.1.1

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R v Mankotia [1998] NSWSC 295 6.2.5.1, 6.2.5.2 R v Mason [2000] SASC 161 14.6.2.4 R v Massey [2009] ACTCA 12 13.2.2 R v Matthews (1990) 58 SASR 19 5.2.6, 5.3.2 R v Mayhew [2010] ACTSC 41 14.5.4 R v McGarvey (1987) 34 A Crim R 119 10.3.3 R v McLaughlan [2008] ACTSC 49 8.2.3 R v McLean and Funk; Ex parte AttorneyGeneral [1991] 1 Qd R 231 16.4.1 R v McNeill (Ruling No 1) [2007] NFSC 2 1.3.4 R v MDB [2005] NSWCCA 354 11.6.2.3 R v Meyboom [2012] ACTCA 2 11.3.2 R v Mir [1989] Crim LR 894 12.2.2 R v Mirish NSWSC, unreported, 15 August 1996 6.3.3 R v Mohan [1994] 2 SCR 9 7.3 R v Morgan (1993) 67 A Crim R 526 10.3.3 R v Muller [2013] ACTCA 15 2.1.2 R v Munce [2001] NSWSC 1072 8.2.3 R v Mundine [2008] NSWCCA 55 16.2.1 R v Narayanaswamy [2011] ACTSC 41 10.3.3 R v Neilan [1992] 1 VR 57 3.3.4.1.1 R v Noël (2002) 218 DLR (4th) 385 1.1.2 R v Oickle [2000] 2 SCR 3 8.2.2 R v O’Keefe [2009] NSWCCA 121 12.1.4 R v P [2001] NSWCA 473 15.3.1 R v Paterson (No 3) [2014] NSWSC 57 10.3.3 R v Pfennig (No 1) (1992) 57 SASR 507 16.5.6 R v Philips (unreported District Court— Criminal Jurisdiction—Rockhampton, 17 September 2007) 12.1.4 R v Phung and Huynh [2001] NSWSC 115 8.2.4 R v Pimentel [1995] NSWCCA 401 16.5.4.3 R v PLV [2001] NSWCCA 282 11.5.4.4 R v Popescu (1989) 39 A Crim R 137 2.3.4.7 R v Quinn and Bloom [1962] 2 QB 245 3.3.4.1 R v Rihia [2000] VSCA 235 12.3.2 R v Rivkin [2004] NSWCCA 7 11.5.4.4 R v Rooke [1997] NSWSC 363 8.2.3 R v Rose (2002) 55 NSWLR 701 5.2.2 R v Rose [2002] NSWCCA 455 5.2.2, 13.1.3

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R v Rossi (Ruling No 1) [2010] VSC 459 6.2.5 R v RPS NSW Court of Criminal Appeal, unreported, 13 August 1997 11.4 R v Ryan [2013] NTSC 54 6.2.5.1 R v Sadler [2008] VSCA 198 10.3.3 R v Sarlija [2009] ACTSC 127 13.2.2 R v Schaeffer [2005] VSCA 306 8.2.4 R v Seaboyer and Gayme (1991) 83 DLR (4th) 193 10.3.2 R v SH, MV and KC [2011] ACTSC 198 2.3.3.3 R v Shaheed [2002] 2 NZLR 377 16.5.3.2, 16.5.4 R v Shamouil [2006] NSWCCA 112 16.2.1 R v Shaukat Ali, unreported, 1 February 1991 16.5.6 R v Sievers [2004] NSWCCA 463 4.1.2 R v Sindoni [2009] VSC 269 8.3.3 R v SJRC [2007] NSWCCA 142 16.4.1 R v Slack [2003] NSWCCA 93 4.1 R v Smith [1981] 1 NSWLR 193 18.2.2 R v Smith [1992] 2 SCR 915 6.1.2 R v Smith [2000] NSWCCA 388 13.1.2 R v Souleyman NSWSC, unreported, 5 September 1996 11.5.4.4, 11.8 R v Stephenson [1976] VR 376 4.1.3 R v Stewart [2001] NSWCCA 260 19.1.1 R v Stillman [1997] 1 SCR 607 16.5.3.2 R v Suteski [2002] NSWCCA 509 6.2.5.3, 16.2.2 R v Sutton (1968) 53 Cr App R 128 7.2.2 R v Swaffield [1998] HCA 1 1.3.2, 8.2.4, 16.5.5, 16.5.6 R v Sweet-Escott (1971) 55 Cr App R 316 11.3.4, 11.4 R v Tang [2006] NSWCCA 167 7.2.2 R v Teys [2001] ACTSC 29 10.2.1 R v Thomas [2006] VSCA 165 8.2.4 R v Toai Siulai [2004] NSWCCA 152 16.4.2 R v Tofilau [2003] VSC 188 16.5.6 R v Ul-Haque [2007] NSWSC 1251 8.2.2 R v Van Dyk [2000] NSWCCA 67 7.2.1 R v Villar [2004] NSWCCA 302 2.2.3.2 R v Walker [2000] NSWCCA 130 16.5.6 R v Ward [1979] 2 SCR 30 8.3.4 R v Ward [1993] 2 All ER 577 14.1.1 R v Welsh (1996) 90 A Crim R 364 5.2.6

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R v Whitmore [1999] NSWCCA 247 11.6.2.2 R v Whyms [2010] ACTSC 91 8.1 R v Whyte [2006] NSWCCA 75 7.2.1 R v Winfield [1939] 4 All ER 164 12.3.2 R v Wood (1983) 76 Cr App R 23 5.2.4 R v Wood [2012] NSWCCA 21 7.3.3 R v WR (No 3) [2010] ACTSC 89 11.8 R v XY [2010] NSWCCA 181 6.2.3 R v XY [2013] NSWCCA 121 16.2.1, 16.2.2 R v Ye Zhang [2000] NSWSC 1099 8.2.2 R v Young [1995] QB 324 1.1.1.1 R v Zugecic [2004] NSWCCA 302 2.2.3.2 Raben Footwear Pty Ltd v Polygram Records Inc [1997] 75 FCR 88 2.3.4.7 Raimondi v The Queen [2013] VSCA 194 5.4.1 Ramsay v Watson [1961] HCA 65 5.4.1 Rank Film Ltd v Video Information Centre [1982] AC 380 14.5.2 Raunio v Hills [2001] FCA 1831 15.2.1 Re Enoch and Zaretzky, Bock & Co Arbitration [1910] 1 KB 327 2.3.2 Re Idylic Solutions Pty Ltd [2012] NSWSC 568 3.2.5 Re Interchase Corp Ltd (1996) 68 FCR 487 1.2.1 Reeves v The Queen [2013] VSCA 311 12.1.4 Reid v Hodge [2002] NSWCCA 10 4.1.2 Reid v Kerr (1974) 9 SASR 367 2.3.4.7 Republic of Ireland v United Kingdom [1978] ECHR 1 8.2.2 RGM v The Queen [2012] NSWCCA 89 11.1 Rickard Constructions Pty Ltd v Richard Hails Moretti Pty Ltd [2006] NSWSC 234 15.2.1 Ridgeway v The Queen [1995] HCA 66 16.5.2.1, 16.5.2.3, 16.5.3.1 Riley v The Queen [2011] NSWCCA 238 8.2.4 RJ v The Queen [2010] NSWCCA 263 2.1.2 Roach and Ors v Page and Ors (No 11) [2003] NSWSC 907 5.4.1, 5.4.4, 6.3.1, 7.3.2 Robinson v The Queen [1991] HCA 38 12.2.1 Robinson v Woolworths Ltd [2005] NSWCCA 426 16.5.2.3 Rodgers v Rodgers [1964] HCA 25 14.7

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TABLE OF CASES

Rolfe v Katunga Lucerne Mill Pty Ltd [2005] NSWCCA 252 2.3.4.4 RPS v The Queen [2000] HCA 3 2.2.3.1, 2.2.3.2, 19.2 Sankey v Whitlam [1978] HCA 43 14.6.1, 14.6.2.3 SB v The Queen [2008] HCA 16 12.1.4, 12.4.3 Scott v Numurkah Corp [1954] HCA 14 3.3.4.1 Seafood Imports Pty Ltd v ANL Singapore Pte Ltd (No 1) [2009] FCA 435 6.2.2 Seltsam Pty Ltd v McGuinness [2002] NSWCA 29 [136] 17.2.1 Seltsam Pty Ltd v McNeil [2006] NSWCA 158 7.2.3 Seven Network Ltd v News Ltd [2005] FCA 864 15.2.1, 15.3.2.7 Seven Network Ltd v News Ltd (No 8) [2005] FCA 1348 16.2.2, 16.3 SH v The Queen [2012] NSWCCA 79 2.1.2 Sheldon v Sun Alliance Ltd (1988) 50 SASR 236 10.1.2 Shepherd v The Queen [1990] HCA 56 17.2.2 Sherrard v Jacob [1965] NI 151 7.2.1 Silverthorne Lumber v United States, 251 US 385 (1920) 16.5.3.2 Sinclair v The King [1946] HCA 55 8.2.3 SMEC Holdings v Boniface [2005] NSWSC 1099 10.1.3, 10.1.4 Smith v Gould (No 1) [2012] VSC 210 14.7 Smith v The Queen [1970] HCA 48 3.2.3 Smith v The Queen (1990) 64 ALJR 588 13.1.2 Smith v The Queen [2001] HCA 50 1.1.2.1, 4.1.1, 4.1.2, 4.1.3, 4.3.3, 7.1, 7.2.3, 13.1.1 Smith v Western Australia [2014] HCA 3 1.1.1.2, 1.1.2.1 Sobh v Police Force of Victoria [1994] 1 VR 41 14.1.1 Song v Ying [2010] NSWCA 237 14.5.2 Sorby v The Commonwealth (1983) 152 CLR 291 14.5.2 Sorby v The Commonwealth [1983] HCA 10 14.5.1, 14.5.2, 16.5.3.2 Sovereign v Bevillesta [2000] NSWSC 521 15.3.2.7

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xxv

SPAR Licensing Pty Ltd v MIS QLD Pty Ltd (No 2) [2012] FCA 1168 5.2.2 Spassked Pty Ltd v Commissioner of Taxation (No 4) [2002] FCA 491 15.3.2.4 Stanoevski v The Queen [2001] HCA 4 12.3.2, 12.4.2, 20.4 Stohl Aviation v Electrum Pty Ltd [1984] FCA 298 18.2.1.1 Strong v Woolworths Limited [2012] HCA 5 17.2.1 Stubley v WA [2010] HCA Trans 269 12.1.4 Stubley v WA [2011] HCA 7 12.1.4 Sturla v Freccia (1880) 5 App Cas 623 6.1.2 Subramaniam v Public Prosecutor [1956] 1 WLR 965 5.2.6 Sussex Peerage Case (1844) 11 CL & F 85 6.2.5.3 Sydney Airports Corp Ltd v Singapore Airlines [2005] NSWCA 47 15.2.5 Talbot v NRMA Ltd [2000] NSWSC 602 15.3.1 Talukder v Dunbar [2009] ACTSC 42 1.2.1 Tasmania v B (No 2) [2012] TASSC 39 5.4.2, 8.3.1 Tasmania v Crane [2004] TASSC 80 16.5.3.3 Tasmania v Lim [2012] TASCCA 9 6.3.1 Tasmania v Martin (No 2) [2011] TASSC 36 10.3.3, 12.1.4 Taylor v The Queen [2009] NSWCCA 180 10.3.2 Teper v The Queen [1952] AC 480 5.1 Thackray v Gunns Plantations Ltd [2011] VSC 380 3.2.5 The Ikarian Reefer [1993] 2 Lloyd’s Rep 68 7.3.3 The Queen v … see also R v … The Queen v Tr & Vg [2004] ACTSC 10 20.2 Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2005] 1 AC 610 15.2.2 Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2009] NSWSC 769 8.1.1 Timbury v Coffee [1941] HCA 22 18.1.4 TKWJ v The Queen [2002] HCA 46 12.4.2, 16.4.2, 20.2 Tofilau v The Queen [2007] HCA 39 8.2.3, 16.5.6

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TABLE OF CASES

Toohey v Commissioner of Metropolitan Police [1965] AC 595 11.3.4, 11.5.4.4, 11.8 Townsend v Tasmania [2007] TASSC 17 10.1.2, 10.2.1 Trade Practices Commission v Abbco Ice Works Pty Ltd [1994] FCA 1279 14.5.6 Trudgett v The Queen [2008] NSWCCA 62 13.1.1 Tully v The Queen [2006] HCA 56 19.2.3 Twist and Ors v The Queen [2011] EWCA Crim 1143 5.2.7 United States v Berrios, 132 F 3d 834 (1st Cir, 1998) 5.2.8 United States v Ceccolini, 542 F2d 140 (1977) 16.5.3.2 United States v Crisp, 324 F 3d 261 (2003) 7.3.3 United States v Leon, 468 US 897 (1984) 16.5.4 United States v Weeks, 919 F 2d 248 (1990) 5.2.8 Unsworth v Tristar Steering & Suspension Australia Ltd [2007] FCA 1081 15.3.2.7 Vale v The Queen (2001) 120 A Crim R 322 16.5.6 Van Der Meer (1988) 35 A Crim R 232 8.2.4 Velevski v The Queen [2002] HCA 4 7.3.3, 17.2.2 Vetrovec v The Queen [1982] 1 SCR 811 19.2.1 Victoria v Brazel (2008) 19 VR 553 14.6.2 Vitler v Chief of Army [2008] ADFDAT 4 10.1.2 Wade (a pseudonym) v The Queen [2014] VSCA 13 3.2.1.2 Walford v Director of Public Prosecutions (NSW) [2012] NSWCA 290 13.1.1, 13.2.1 Walker v Walker (1937) 57 CLR 630 2.3.3.2 Walton v The Queen [1989] HCA 9 5.2.7, 5.3.2, 6.1.2, 6.3.2

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Ward v The Queen (Barbados Court of Appeal, 13 July 2006) 1.3.3 Wardrope v Dunne [1996] 1 Qd R 224 15.3.2.6 Washer v Western Australia [2007] HCA 48 4.3.2 Waterford v The Commonwealth [1987] HCA 25 15.1, 15.2.7 Weininger v The Queen [2003] HCA 14 16.5.6 Weissensteiner v The Queen [1993] HCA 65 2.2.3, 2.2.3.1, 2.2.3.2 Welsh v The Queen (1996) 13 NSWCCA 674 5.4.1 Welsh v The Queen (1996) 90 A Crim R 364 5.4.4 Westbus Pty Ltd (Administrators Appointed) v Ishak [2006] NSWCA 198 17.2.1 Westpac Banking Corp v 789Ten Pty Ltd [2005] NSWCA 321 15.2.5 Williams Advanced Materials Inc v Target Technology Company LLC [2004] FCA 1405 20.3 Williams v Illinois, 132 S Ct 2221 (2012) 6.3.1 Williams v The Queen [1986] HCA 88 16.5.2.2 Williams v The Queen [2000] FCA 1868 6.2.5.2 Wilson v The Queen [1970] HCA 17 4.3.1 Wily v Fitz-Gibbon [1998] FCA 121 8.1, 8.2.2 Wong Sun v United States, 371 US 471 (1963) 16.5.3.2 Woolmington v DPP [1935] AC 462 17.1.1 Woon v The Queen [1964] HCA 23 5.2.6 Wright v Doe d Tatham (1837) 7 Ad & El 313 5.2.7, 5.2.8 Zaknic v Svelte Corp Pty Ltd [1995] FCA 1739 10.1.1, 10.2.2

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xxvii

TABLE OF STATUTES UNIFORM LEGISLATION Uniform Evidence legislation 7.3.3, 19.1.1 Dictionary section 1.1.1.1, 3.1.2, 5.2.2, 5.2.3, 6.2.4, 10.1.2, 11.1, 12.3.2, 16.2.1 s 4 1.2.1 s 4(1) 1.1.2.2, 1.2.1 s 4(2) 1.2.1 s 4(3) 1.2.1 s 4(4) 1.2.1 s 8 1.3.1 s 9 1.2.1, 1.3.2 s 9(2)(a) 1.1.2.1, 1.3.2 s 9(2)(b) 1.3.2 s 9(2)(c) 1.3.2, 6.3.4 s 10 1.3.2 s 11 2.3.2 s 11(2) 1.3.2 s 12 1.3.2, 2.1 s 12(a) 2.1.2 s 12(b) 2.1.3 s 13 1.2.3, 2.1.1 s 13(1) 2.1.2 s 13(2) 2.1.2 s 13(3) 2.1.2 s 13(4) 2.1.2 s 13(5) 2.1.2 s 13(6) 2.1.2 s 13(7) 2.1.2 s 13(8) 2.1.2 s 14 2.1.3 s 15 2.1.3 s 16 2.1.3, 6.2.4 s 17(2) 2.1.4 s 17(3) 2.1.4 s 18 2.1.5, 6.2.5 s 18(2) 2.1.5 s 18(3) 2.1.5 s 18(6) 2.1.5 s 18(6)(a) 2.1.5 s 18(6)(b) 2.1.5 s 18(7) 2.1.5 s 18(8) 2.1.5 s 19 2.1.5

00_GAN_UFE_21054_TXT_SI.indd xxvii

s 20 2.2.3.2 s 20(1) 2.2.3.2 s 20(2) 2.2.3.2 s 20(3) 2.2.2 s 20(4) 2.2.2 s 20(5) 2.2.2 s 21(1) 2.1.1 s 21(3) 2.1.1 s 23 2.1.1 s 26 2.3.2 s 28 2.2.3.2 s 29(1) 2.3.1 s 29(2) 2.3.1 s 29(4) 2.3.1, 3.2.3 s 30 2.1.2 s 31 2.1.2 s 32 1.3.3, 15.3.2.5 s 32(1) 2.3.3.2 s 32(2) 2.3.3.2 s 32(3) 2.3.3.2 s 33 1.3.3, 15.3.2.5 s 33(1) 2.3.3.2 s 33(2) 2.3.3.2 s 34 2.3.3.2 s 35 2.3.3.2 s 37(1) 2.3.3.1 s 38 2.3.3.3 s 38(1) 2.3.3.3 s 38(1)(a) 2.3.3.3 s 38(1)(c) 2.3.3.3 s 38(2) 2.3.3.3 s 38(3) 2.3.3.3, 11.4 s 39 2.3.5, 11.6.1 s 41 2.3.4.3 s 41(1) 2.3.4.2, 2.3.4.3 s 41(2) 2.3.4.2, 2.3.4.3 s 41(3) 2.3.4.3 s 41(4) 2.3.4.3 s 41(5) 2.3.4.3 s 42(1) 2.3.4.1 s 42(2) 2.3.4.1 s 42(3) 2.3.4.1 s 43 11.5.2, 11.5.4.3 s 43(1) 2.3.4.5

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xxviii

TABLE OF STATUTES

s 43(2) 2.3.4.5 s 43(3) 2.3.4.5 s 44(1) 2.3.4.6 s 44(2) 2.3.4.6 s 44(3) 2.3.4.6 s 45(2) 2.3.4.5 s 45(3) 2.3.4.5 s 46 2.3.4.7 s 47(1) 3.1.2 s 47(2) 3.1.3 s 48 3.1.4 s 48(1) 3.1.3, 3.1.4 s 48(1)(a) 3.1.3 s 48(1)(b) 3.1.3 s 48(1)(c) 3.2.1.2 s 48(1)(d) 3.2.4 s 48(1)(e) 3.1.3 s 48(1)(f) 3.1.3 s 48(3) 3.1.3 s 48(4) 3.1.3 s 48(4)(b) 3.2.1.2 s 50 3.2.5 s 50(3) 7.2.3 s 51 1.2, 3.1.3 s 52 2.2.3.2, 3.3.1, 3.3.4.1.2 s 53 2.2.3.2, 3.3.4.1.1, 3.3.4.1.2 s 53(2) 3.3.4.1.1 s 53(3) 3.3.4.1.1 s 53(4) 3.3.4.1 s 53(5) 3.3.4.1 s 54 2.2.3.2, 3.3.4.1.1 s 55 2.2.3.2, 4.1.1, 4.1.3, 12.1.4 s 55(1) 1.1.1.1, 4.1.1, 16.2.5 s 55(2) 4.2, 11.2 s 55(2)(c) 2.2.1 s 56 4.1, 6.1.4 s 56(1) 1.1.1.2, 1.3.2, 2.3.4.7 s 56(2) 1.1.1.3, 1.3.2, 4.1, 6.1.4 s 57(1) 4.4, 17.2.3 s 57(2) 4.4 s 58(1) 3.1.4, 4.4 s 59 5.2.5, 5.2.7, 6.3.2, 8.2.1, 11.3.2 s 59(1) 1.3.2, 5.2.1, 5.2.2, 5.2.4, 5.2.5, 5.2.7, 5.2.8, 6.1 s 60 2.3.3.3, 2.3.4.5, 5.2.3, 5.2.6, 5.3.2, 5.4.1, 5.4.2, 5.4.4, 6.1.4, 6.2.3, 7.1, 7.3.2, 8.2.1, 8.3.1, 11.3.2, 11.5.4.3, 13.1.1, 16.3

00_GAN_UFE_21054_TXT_SI.indd xxviii

s 60(1) 5.4.1, 5.4.2, 5.4.3 s 60(3) 5.4.3, 8.3.1 s 61 1.2.3, 2.1, 6.1.4 s 61(2) 6.1.4 s 62 6.2.1, 8.3.1 s 62(1) 5.3.1 s 62(2) 5.4.2, 6.2.1, 6.3.3 s 62(3) 5.3.1 s 63 6.2.2 s 64 8.1.1 s 64(2) 6.2.2, 9.1 s 64(3) 6.2.2, 11.6.2 s 65 6.2.3, 6.2.5, 6.2.5.5 s 65(1) 6.2.5 s 65(2) 6.2.5, 6.2.5.1, 6.2.5.2, 6.2.5.4, 13.1.1 s 65(2)(a) 6.2.5.4 s 65(2)(b) 6.1.2, 6.2.5, 6.2.5.2 s 65(2)(c) 6.1.2, 6.2.5.1, 6.2.5.2, 6.2.5.3 s 65(2)(d) 6.2.5.3, 8.1.1 s 65(2)(d)(i) 6.1.2 s 65(3) 6.2.5, 6.2.5.5 s 65(4) 6.2.5, 6.2.5.5 s 65(5) 6.2.5, 6.2.5.5 s 65(6) 6.2.5, 6.2.5.5 s 65(7) 6.2.5, 6.2.5.3 s 65(8) 6.1.2, 6.2.4, 12.3.1, 12.3.3 s 65(9) 6.1.2, 6.2.4 s 66 6.2.3, 8.1.1 s 66(2) 5.2.6, 6.1.4, 6.2.3, 11.6.2, 13.1.1 s 66(3) 6.2.3, 6.2.5 s 66(4) 6.2.3 s 66A 5.2.6, 5.3.1, 5.3.2, 5.3.3, 5.4.3, 6.1.4, 6.3.3, 13.1.1 s 67 6.2.1, 6.2.2, 9.1 s 67(4) 6.2.2 s 68 6.2.2 s 69 3.1.4, 6.2.1, 6.2.5.4, 6.3.1, 7.3.2 s 69(2) 6.3.1 s 69(3) 6.3.1 s 69(4) 6.3.1 s 70 6.3.2, 11.3.2 s 70(2) 6.3.2 s 71 6.3.2 s 72 6.3.3 s 73 6.3.3 s 73(1)(c) 6.3.3 s 74 6.3.3

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TABLE OF STATUTES

s 75 6.3.4 s 76 7.1, 9.1, 11.3.2 s 77 7.1, 11.3.2, 16.3 s 78 7.1, 7.2.1, 7.2.2, 7.2.3, 7.3.1, 7.3.2, 9.1, 13.1.1 s 78A 7.2.3 s 78(b) 7.2.1 s 79 1.2.3, 2.1.2, 7.1, 7.2.2, 7.2.3, 7.3, 7.3.1, 7.3.2, 7.3.3, 9.1, 9.2, 11.8, 13.1.2 s 79(2) 7.3.1, 11.8 s 79(2)(a) 7.3.1 s 79(2)(b) 7.3.1 s 80 7.3.1 s 80(b) 1.2.3, 7.3.1 s 81 7.2.3, 8.1.1, 8.1.2, 8.3, 8.3.2, 9.2 s 81(1) 8.1.1, 8.3 s 81(2) 8.1.1 s 82 8.1.1, 8.3.1, 8.3.2 s 83(1) 8.1.1 s 83(2) 8.1.1 s 83(3) 8.1.1 s 84 8.1.1, 8.2.2, 8.2.3, 8.2.4, 8.3, 11.3.2 s 84(1) 8.2.2, 8.3.4, 17.1.3 s 84(2) 8.3.4, 17.1.3 s 85 8.1.1, 8.2.1, 8.2.3, 8.2.4, 8.3, 8.3.3, 11.3.2 s 85(1) 8.2.3 s 85(2) 8.2.3 s 85(3)(a) 8.2.3 s 85(3)(b) 8.2.3 s 86 1.3.3, 8.1.1, 8.2.1, 8.3.2, 11.3.2 s 86(4) 8.3.2 s 87 8.1.1 s 87(1) 17.2.3 s 87(1)(a) 8.1.1 s 87(1)(b) 8.1.1 s 87(1)(c) 8.1.1, 8.3.4 s 87(2) 8.3.4 s 88 8.3.4, 17.2.3 s 89 1.3.3, 8.3.3, 13.2.1 s 89(1) 8.1.2 s 89(2) 8.1.2 s 89(3) 8.1.2 s 89(4) 8.1.2 s 90 1.3.3, 8.1.1, 8.2.1, 8.2.4, 8.3, 8.3.3, 12.4.1, 13.2.1, 16.5.5, 19.1.2 s 90(b) 8.2.4

00_GAN_UFE_21054_TXT_SI.indd xxix

xxix

s 91 9.1, 9.2, 11.3.2 s 91(1) 9.1 s 91(2) 9.1 s 92 9.2 s 92(1) 9.2 s 92(2) 9.2 s 92(3) 7.2.3 s 93 9.1, 9.2 s 94 12.1.3 s 94(1) 10.2.3 s 94(2) 10.2.3 s 94(3) 10.2.3, 12.1.3, 12.2 s 95 10.1.4 s 96 10.1.1, 10.1.2 s 97 10.1.1, 10.1.4, 10.2.3, 10.3, 10.3.3, 11.3.2, 12.1, 12.1.1, 12.1.3, 12.1.4, 12.3.1, 12.3.2, 12.3.3 s 97(1) 10.1.1, 10.1.4, 10.3.2 s 97(1)(a) 10.2.1 s 97(1)(b) 10.2.2 s 97(2)(b) 10.2.1 s 98 10.1.2, 10.1.4, 11.3.2, 12.1, 12.1.1, 12.1.3, 12.1.4, 12.3.1 s 98(1) 10.1.2, 10.1.4, 10.2.3 s 98(1)(a) 10.2.1 s 98(1)(b) 10.2.2 s 98(3)(b) 10.2.1 s 100 10.2.1 s 101 12.1.3, 12.1.4 s 101(2) 12.1, 12.1.1, 12.1.2, 12.1.3, 12.1.4, 12.2, 12.3.2, 12.3.3, 12.4.2 s 101(3) 12.1.3 s 101(4) 12.1.3 s 101A 10.2.3, 11.3.2, 11.3.3, 12.2.1 s 101A(a) 11.3.2 s 101A(b) 11.3.2 s 102 11.3.1, 11.3.2, 11.3.3, 11.5.1, 11.6.2, 11.7, 12.3.2 s 103 11.3.1, 11.4, 11.5.4.2, 11.7, 11.8, 12.2, 12.2.1, 12.2.2 s 103(1) 11.7 s 103(2) 11.4, 11.7 s 103(2)(b) 11.5.4.5 s 104 11.3.1, 12.2.1, 12.3.2, 12.4.2, 20.4 s 104(2) 12.4.2 s 104(3)(b) 11.5.4.4 s 104(4) 12.2.2, 12.3.2

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xxx

TABLE OF STATUTES

s 104(6) 12.2.1 s 106 11.3.1, 11.3.4, 11.4, 11.5.1, 11.5.2, 11.5.3, 11.5.4, 11.5.4.3, 11.5.4.5, 11.5.5, 11.8, 12.2.1 s 106(1) 11.5.4.6, 11.8 s 106(1)(a) 11.5.4.1 s 106(1)(b) 11.5.4.1 s 106(2) 11.5.4.2, 11.5.4.6 s 106(2)(b) 11.5.4.2 s 106(2)(c) 11.5.4.3 s 106(2)(d) 11.5.4.4, 11.8 s 106(2)(e) 11.5.4.5 s 106(a) 11.5.3 s 108 11.3.1, 11.6.2.3, 13.1.1 s 108(1) 11.6.1 s 108(3) 11.6.2, 11.6.2.1, 11.6.2.2, 11.6.2.3, 11.8, 20.4 s 108(3)(b) 11.6.2.2 s 108A 11.3.1, 11.3.2, 11.3.3, 11.7, 11.8, 12.2.1, 12.3.1, 13.1.1 s 108A(1) 11.7 s 108A(2) 11.7 s 108B 11.3.1, 12.2.1 s 108B(2) 12.4.2 s 108B(4) 12.2.2 s 108C 11.3.1, 11.8, 12.2.1, 12.3.3, 13.1.2 s 108C(1) 11.8 s 108C(1)(b)(ii) 11.8 s 109 12.3.1 s 110 7.2.3, 11.3.1, 12.1.3, 12.3.2, 12.3.3, 12.4.2, 20.2 s 110(1) 12.3.1, 12.3.2, 12.3.3 s 110(2) 12.3.2, 12.3.3 s 110(3) 12.3.2, 12.3.3 s 111(1) 12.3.3 s 111(2) 12.3.3 s 112 12.2.2, 12.4.2, 20.2 s 114 1.3.3, 13.2, 13.2.1, 13.2.2, 13.2.3 s 114(1) 13.2.2 s 114(2) 13.2.1 s 114(2)(c) 13.2.1 s 114(3)(a) 13.2.1 s 114(3)(d) 13.2.1 s 114(4) 13.2.1 s 114(5) 13.2.1 s 115 12.4.1, 13.2, 13.2.1, 13.2.2, 13.2.3

00_GAN_UFE_21054_TXT_SI.indd xxx

s 115(3) 13.2.2 s 115(4) 13.2.2 s 115(5) 13.2.2 s 115(7) 13.2.2 s 115(8) 13.2.2 s 115(10)(a) 13.2.2 s 116 13.1.1, 13.1.3, 13.2.3, 19.1.1 s 116(1) 13.1.3 s 116(1)(b) 13.1.3 s 116(2) 13.1.3 s 117(1) 15.2.1, 15.2.7 s 118 14.1.3, 15.2.2, 15.2.3 s 118(c) 15.2.2, 15.2.8 s 119 14.1.3, 15.2.3 s 119(b) 15.2.8 s 120 14.1.3, 15.2.6 s 120(1) 15.2.4 s 120(b) 15.2.8 s 121 15.3, 15.3.1, 15.3.6 s 121(1) 15.3.1 s 121(2) 15.3.1 s 121(3) 15.3.1 s 122 15.3, 15.3.2, 15.3.2.7, 15.3.6 s 122(1) 15.3.2 s 122(2) 15.3.2, 15.3.2.1, 15.3.2.2, 15.3.2.7 s 122(3) 15.3.2.7 s 122(3)(a) 15.3.2.7 s 122(5) 15.3.2.7 s 122(5)(a)(i) 15.3.2.7 s 122(5)(a)(ii) 15.3.2.7 s 122(5)(a)(iii) 15.3.2.7 s 122(5)(a)(iv) 15.3.2.7 s 122(5)(b) 15.3.2.7 s 122(5)(c) 15.3.2.7 s 122(6) 2.3.3.2, 15.3.2.5 s 123 14.1.4, 15.3, 15.3.3, 15.3.6 s 124 15.3, 15.3.4, 15.3.6 s 125 15.3, 15.3.5, 15.3.6 s 125(1)(a) 15.3.5 s 125(1)(b) 15.3.5 s 125(2) 15.3.5, 17.2.3 s 125(3) 15.3.5 s 126 15.3, 15.3.2.2, 15.3.6 s 126A(1) 14.2 s 126B(1) 14.2 s 126B(3) 14.2

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s 126B(4) 14.2 s 126C 14.2 s 126D 14.2 s 127 6.2.5, 14.1.3, 14.8 s 127(4) 14.8 s 127A 14.1.4 s 127B 14.1.4 s 128 14.1.3, 14.1.4, 14.4, 14.5.2, 16.5 s 128(1) 14.5.2 s 128(2) 14.5.3 s 128(3) 14.5.4 s 128(4) 14.5.4 s 128(4)(a) 14.5.4 s 128(5) 14.5.5 s 128(7) 14.5.2, 14.5.4 s 128(9) 14.5.5 s 128(10) 14.5.5 s 128(12) 14.5.4 s 128A 14.1.4, 14.4, 14.5.2 s 128A(1) 14.1.4 s 129 14.8 s 129(4) 1.1.2.1 s 130 14.6, 14.6.1, 14.6.2, 14.6.2.4, 14.6.2.5 s 130(1) 14.6.1 s 130(2) 14.6.1 s 130(3) 14.6.1 s 130(4) 14.6.2, 14.6.2.5 s 130(4)(a) 14.6.2.2 s 130(4)(b) 14.6.2.2 s 130(4)(c) 14.6.2.4 s 130(4)(d) 14.6.2.4 s 130(4)(e) 14.6.2.4 s 130(4)(f) 14.6.2.3 s 130(5) 14.6.4 s 131 14.1.4, 14.7 s 131(1)(a) 14.7 s 131(1)(b) 14.7 s 131(2)(a) 14.7 s 131(2)(b) 14.7 s 131(2)(j) 14.7 s 131(2)(k) 14.7 s 131(3) 17.2.3 s 131(4) 17.2.3 s 131(5)(b) 14.7 s 131A 14.1.4, 14.2, 14.3, 14.6, 14.7 s 132 14.1.3, 15.2.6

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xxxi

s 134 14.1.3 s 135 3.3.4.1.2, 5.2.6, 6.3.1, 7.1, 7.3, 7.3.1, 10.3, 11.3.2, 12.1.3, 12.4.2, 13.1.2, 16.2, 16.2.1, 16.4, 16.4.1, 20.2 s 135(a) 12.1.3, 16.2.2 s 135(b) 16.2.4 s 135(c) 13.1.2, 16.2.5 s 136 5.3.2, 5.4.4, 6.1.4, 7.1, 7.3, 7.3.2, 8.2.4, 10.2.3, 11.3.2, 12.1.3, 12.2, 12.4.2, 13.1.1, 16.3, 16.4 s 137 3.3.4.1.2, 5.2.6, 6.2.5, 7.1, 7.2.1, 7.3, 7.3.1, 8.2.4, 11.3.2, 12.1.3, 12.2, 13.2.3, 16.2.1, 16.4, 16.4.1, 16.4.3 s 138 8.2, 8.2.2, 8.2.4, 13.2.3, 16.5, 16.5.1, 16.5.2, 16.5.3.2, 16.5.3.3, 16.5.5, 19.1.2 s 138(1) 16.5.2, 16.5.3, 16.5.3.2, 16.5.4, 16.5.6 s 138(1)(a) 16.5.2.3, 16.5.3.1, 16.5.3.3 s 138(1)(b) 16.5.3.2 s 138(2) 16.5.2.3 s 138(3) 16.5.4, 16.5.4.1, 16.5.4.2, 16.5.4.3 s 138(3)(f) 1.3.4 s 139 8.2.4, 16.5.2.3 s 139(1) 16.5.2.3 s 139(2) 16.5.2.3 s 140(1) 17.2.1 s 140(2) 1.2.3, 17.2.1 s 141(1) 17.2.2 s 141(2) 17.2.2 s 142 1.3.3, 8.3.4, 20.1 s 142(1) 17.2.3 s 142(2) 17.2.3 s 143(1) 18.1.2 s 143(1)(a) 18.1.2 s 143(2) 18.1.2 s 144 18.1 s 144(1) 18.1.1 s 144(1)(a) 18.1.3 s 144(1)(b) 18.1.4 s 144(2) 18.1.3 s 144(3) 18.1.3 s 144(4) 18.1.1, 18.1.3 s 145 18.1.5 s 146 3.1.3, 3.2.1.1, 3.2.4, 20.5 s 146(2) 17.2.3

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TABLE OF STATUTES

s 147 3.1.3, 3.2.4, 20.5 s 149 3.1.4, 20.5 s 150 20.5 s 151 20.5 s 152 3.1.4, 20.5 s 153 20.5 s 155 20.5 s 155A 20.5 s 156 20.5 s 157 20.5 s 158 20.5 s 159 20.5 s 160 20.5 s 161 20.5 s 162 20.5 s 163 20.5 s 164 1.3.2 s 164(1) 19.2.1 s 164(2) 19.2.1 s 164(3) 19.2.1 s 164(4) 19.2.1 s 165 13.1.3, 19.1.1, 19.1.2, 19.2, 19.2.1, 19.2.2 s 165(1) 19.1.1 s 165(1)(a) 19.1.1 s 165(1)(b) 19.1.1 s 165(1)(c) 19.1.1 s 165(1)(d) 19.1.1 s 165(1)(e) 19.1.1 s 165(1)(f) 19.1.1 s 165(1)(g) 19.1.1 s 165(2) 19.1.1, 19.2.2 s 165(2)(a) 19.1.1 s 165(5) 1.3.2, 19.2 s 165(6) 19.1.1 s 165A 19.1.1 s 165A(1) 19.2.1 s 165A(2) 19.1.1, 19.2.1 s 165B 11.9.1, 19.1.2 s 165B(2) 19.1.2, 19.2.1 s 165B(3) 19.1.2 s 165B(4) 19.1.2 s 165B(5) 1.3.2, 19.1.2 s 165B(6)(a) 19.1.2 s 165B(6)(b) 19.1.2 s 166 20.6 s 166(g) 9.2

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s 167 6.3.1, 20.6 s 167(b) 9.2 s 168 20.6 s 169 20.6 s 170 20.6 s 171 20.6 s 172 20.6 s 173 20.6 s 174 18.1.2, 20.6 s 175 18.1.2, 20.6 s 176 18.1.2 s 177 1.3.1, 6.3.1 s 178 9.2, 11.5.4.2 s 179 11.5.4.2 s 180 11.5.4.2 s 183 3.1.4 s 184 18.2.2 s 187 14.5.6 s 189 17.2.3, 20.2 s 189(1) 8.3.4, 20.1 s 189(2) 8.3.4, 20.1 s 189(3) 8.2.3, 20.1 s 189(4) 20.1 s 189(5) 20.1 s 189(8) 20.1 s 190 6.3.4 s 190(1) 20.3 s 190(2) 20.3 s 190(3) 1.2.1, 20.3 s 190(4) 20.3, 20.4 s 191 18.2.1.1, 18.2.1.2, 18.2.2 s 191(1) 18.2.1.2 s 191(2) 18.2.1.2 s 192 11.5.4.6, 11.6.2.3, 12.4.2, 20.2, 20.4 s 192(2)(a) 11.6.2.3, 12.4.2 s 192(2)(b) 12.4.2 s 192(2)(c) 11.6.2.3 s 192A 12.4.2, 20.2 s 342 11.9.2 s 344 11.9.2 s 347 11.9.2 s 352(b) 11.9.2 Division 1 14.1.4 Division 1A 14.1.4 Division 1B 14.1.4 Division 1C 14.1.4

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Division 2 6.2.1 Division 3 6.2.1, 14.1.4 Division 3.10.1 14.1.4 Division 3.10.1A 14.1.4 Division 3.10.1C 14.1.4 Division 3.10.3 14.1.4 Division 4.6.1 14.1.4 Part 2.1 2.1, 20.3 Part 2.2 20.3 Part 2.3 3.3.1, 20.3 Part 3.2 6.3, 11.3.2, 20.3 Part 3.3 11.3.2, 20.3 Part 3.4 8.1, 8.2.1, 11.3.2, 20.3 Part 3.5 11.3.2, 20.3 Part 3.6 10.1.4, 11.3.2, 12.1, 20.3 Part 3.7 10.2.3, 11.3.2, 11.7, 12.2, 13.1.1, 20.3 Part 3.8 12.1, 12.4.2, 20.3 Part 3.9 11.3.2, 13.1, 13.2, 13.2.3 Part 3.10 11.3.2, 14.6.1 Part 3.11 12.1, 13.2

Defence Force Discipline Act 1982 s 101N(4) 13.2.1 s 101N(5)(a) 13.1.1 Evidence Act 1995 14.1.4 s 4(5) 1.2.1 s 126G 14.3 s 126H(1) 14.3 s 126H(2) 14.3 s 128 14.5.4 Division 1A 14.3 Family Law Act 1975 s 69ZT 1.2.1 Family Law Rules 2004 Part 15 7.3.3 Federal Court Rules Order 34 7.3.3 Order 34A 7.3.3 Order 34B 7.3.3 Trade Practices Act 1974 s 46 18.2.1.1 s 52 16.2.4

COMMONWEALTH

AUSTRALIAN CAPITAL TERRITORY

Acts Interpretations Act 1901 s 15AA 1.2.2 Crimes Act 1914 s 3ZM(3)(b)(i) 13.2.1 s 3ZM(5) 13.2.1 s 3ZM(6) 13.2.1 s 3ZM(6)(l) 13.1.1 s 3ZM(7)(a) 13.2.1 s 3ZM(7)(b) 13.2.1 s 3ZO(1) 13.2.2 s 3ZO(2) 13.2.2 s 3ZO(3) 13.2.2 s 15YC(1)(a) 10.3.2 s 15YC(1)(b) 10.3.3 s 15YC(2)(a) 10.3.2 s 15YC(3) 10.3.3 s 15YD(1)(b) 10.3.2 s 15YQ 19.2.1 s 23A(6) 8.2, 8.2.4 s 23V 8.3.3 s 23V(5) 8.3.3 Division 2 10.3 Criminal Justice Act 2003 s 114 5.2.7 s 115 5.2.7

Court Procedures Rules 2006 Part 2 7.3.3 Crimes Act 1900 s 233(3)(b) 13.2.1 s 233(5) 13.2.1 s 233(6) 13.2.1 s 233(7)(a) 13.2.1 s 233(7)(b) 13.2.1 s 235(1) 13.2.2 s 235(2) 13.2.2 s 235(3) 13.2.2 s 235(6)(l) 13.1.1 Evidence (Miscellaneous Provisions) Act 1991 14.4 s 8 2.3.6.1 s 8(1) 2.3.6.2 s 43 2.3.6.2 s 51(1) 10.3.2 s 51(2) 10.3.3 s 52 10.3.2 s 53 11.9.2 s 53(1)(a) 10.3.2 s 53(1)(b) 11.9.2 s 53(2) 10.3.3 s 71 11.9.1, 19.1.2

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TABLE OF STATUTES

Division 2A 14.1.4 Division 4.3 2.3.6.1 Division 4.4 10.3 Division 4.6 19.2.1 Evidence Act 2011 14.1.4 s 126J 14.3 s 126K(1) 14.3 s 126K(2) 14.3 Division 1C 14.3 Division 3.10.1A 14.4 Human Rights Act 2004 1.3.4, 16.5.2.1 s 21(1) 6.2.5 s 30 1.3.4, 10.3.3 s 40B(1) 1.3.4 Legislation Act 2001 s 139 1.2.2

NORFOLK ISLAND Evidence Act 2004 1.3.1

NEW SOUTH WALES Civil Procedure Act 2005 s 87 14.1.4 Criminal Procedure Act 1986 14.4 s 183 14.1 s 281 8.3.3 s 281(2)(a)(ii) 8.3.3 s 281(4) 8.3.3 s 293 10.3 s 293(3) 10.3.2 s 293(4) 10.3.2 s 293(6) 10.3.2, 11.9.2 s 293(7) 10.3.2 s 294 11.9.1, 19.1.2 s 294A(2) 2.3.6.2 s 294AA 19.2.1 s 294B(3)(b)(i) 2.3.6.2 s 294C 2.3.6.2 s 306M 2.3.6.1 s 306U 2.3.6.2 s 306ZB(1) 2.3.6.2 Part 5 14.1.4 Part 6 2.3.6.1 Evidence (Consequential and Other Provisions) Act 1995 1.3.1 Evidence Act 1995 14.1.4 s 81 8.2 s 89A 8.1.2

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s 89A(1) 8.1.2 s 126J 14.3 s 126K(1) 14.3 s 126K(2) 14.3 s 128 14.5.4 s 165B 19.1.2 s 165B(7) 11.9.1, 19.1.2 Division 1A 14.2 Division 1B 14.4 Division 1C 14.3 Evidence Amendment (Confidential Communication) Act 1997 1.2.2 Evidence Amendment (Evidence of Silence) Act 2013 1.2.2 Evidence Legislation Amendment Act 2001 1.2.2 Law Enforcement (Powers and Responsibilities) Act 2002 s 68C 1.1.1.2 s 108E 8.3.3 Part 8A 8.3.3 Part 9 8.2, 8.2.4 Uniform Civil Procedure Rules 2005 14.1.4 s 126A(1) 14.2 Schedule 7 7.3.3

NORTHERN TERRITORY Evidence (National Uniform Legislation) Act 2011 1.2.3, 14.1.4 s 143(1)(a) 18.1.2 Evidence Act 1939 1.2.3 Part 3 2.3.6.1 s 6 1.3.1 s 10 14.5 s 21A 2.3.6.1 Evidence Act 2011 Part 7 14.1.4, 14.4 s 12 14.8 Police Administration Act 1978 Part VII 8.2, 8.2.4 s 142 8.3.3 s 143 8.3.3 Sexual Offences (Evidence and Procedure) Act 1983 s 4 10.3, 11.9.2 s 4(1) 10.3.2 s 4(2)(a) 10.3.3

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s 4(3) 10.3.3 s 4(4) 10.3.2 s 4(5) 11.9.1, 19.2.1 s 4(5)(b) 19.1.2

QUEENSLAND Evidence Act 1977 s 10 14.5 s 93B 1.2.2, 6.1.2 s 93B(2)(b) 6.2.5.1 s 93C 1.2.2 s 95 6.1.4 s 132A 12.1.4

SOUTH AUSTRALIA Criminal Law Consolidation Act 1935 s 278(2a) 12.1.4 Evidence Act 1929 s 34AB(1) 13.2.2 s 34AB(2)(a)(i) 13.1.1 s 34AB(6) 13.2.1 s 34M(2) 19.1.2 s 34P 12.1.3 s 34AB(2)(a)(ii) 13.2.2

TASMANIA Criminal Code 1924 s 45 9.1 s 136 19.2.1 s 371A 11.9.1, 19.1.2 Criminal Law (Detention and Interrogation) Act 1995 8.2, 8.2.4 Evidence Act 2001 14.1.4 s 85(1)(b) 8.3.3 s 85A 8.3.3 s 85A(1)(d) 8.3.3 s 116 13.1.1 s 127A 14.8 s 127B 14.4 s 143(1)(a) 18.1.2 s 194M 10.3 s 194M(1)(b) 10.3.2, 10.3.3 s 194M(2)(a) 10.3.2 Evidence Amendment Act 2010 1.2.2

VICTORIA Charter of Human Rights and Responsibilities Act 2006 1.3.4, 16.5.2.1

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s 24(1) 6.2.5 s 25(2)(g) 2.3.4, 5.1.2, 16.2.2 s 25(2)(k) 14.5.2 s 32 10.3.3 s 32(1) 1.3.4 s 38(1) 1.3.4 Civil Procedure Act 2010 Part 4 7.3.3 Crimes (Criminal Trials) Act 1999 s 6 14.1 s 7 14.1 Crimes Act 1958 s 48(1)(c) 19.1.2 s 49 19.1.2 s 50 19.1.2 s 61 19.2.1 s 61(1)(b) 11.9.1, 19.1.2 s 398A 12.1.4 s 464H 8.3.3 s 464H(1)(c) 8.3.3 s 464H(2) 8.3.3 Part 3 8.2, 8.2.4 Criminal Procedure Act 2009 16.4.1 Part 8.2 11.9.2 s 183(3) 18.2.2 s 342 10.3.2 s 348 10.3.2 s 349 10.3.2, 11.9.2 s 349(a) 10.3.2 s 349(b) 10.3.2 s 349(c) 10.3.2 s 349(d) 10.3.2 s 352(a) 10.3.3 s 353 2.3.6.1 s 356 2.3.6.2 s 357 2.3.6.2 s 358 2.3.6.2 s 359 2.3.6.1 s 360(a) 2.3.6.2 s 360(b) 2.3.6.2 s 360(c) 2.3.6.2 s 360(d) 2.3.6.2 s 360(e) 2.3.6.2 s 360(f) 2.3.6.2 s 364(b) 2.3.6.2 s 365(c) 2.3.6.2 s 366 2.3.6.1 ss 366–8 2.3.6.2

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s 369 2.3.6.1 ss 369–77 2.3.6.2 s 378 2.3.6.1 ss 378–87 2.3.6.2 s 388 7.3.1, 11.8, 11.9.1 Divisions 3–8 2.3.6.1 Part 8 10.3 Evidence (Miscellaneous Provisions) Act 1958 14.2 s 28 14.8 s 28(2) 14.2 ss 32AB–32G 14.4 s 80 20.5 s 81 20.5 Division 2A 14.1.4, 14.4 Evidence Act 1958 s 26 14.5 s 55B 6.1.4 Evidence Act 2008 14.1.4, 19.1.1 s 24A 2.1.1 s 41(3) 2.3.4.2 s 41(5) 2.3.4.2 s 55(2)(a) 11.9.2 s 126J 14.3 s 126K(1) 14.3 s 126K(2) 14.3 s 143(1)(a) 18.1.2 s 164 19.2.1 Division 1C 14.3 Juries Act 2000 s 78A 1.1.1.2 Jury Directions Act 2013 2.2.2, 2.2.3.2, 13.1.3, 19.1.1, 19.2, 19.2.3 s 10 19.2.2 s 11 19.2.2 s 12 19.1.1 s 13(a) 13.1.3 s 14 13.1.3, 19.2.2 s 14(2) 19.1.1 s 15 19.2.2 s 17(a) 19.2.3 s 17(b) 19.2.3 s 17(c) 19.2.3 s 19 19.2.3 s 19A 19.2.3 s 21 17.2.2 s 36 19.1.1 s 36(2)(a) 19.1.1

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s 36(3)(b)(ii) 19.1.2 s 37 19.1.2 s 41 19.2.1 s 51 19.1.2 s 165 19.1.1 s 165B 19.1.2 Part 7 12.4.3 Supreme Court (General Civil Procedure) Rules 2005 Order 44 7.3.3

WESTERN AUSTRALIA Evidence Act 1906 s 24 14.5 s 31A 12.1.3 s 31A(3) 12.1.4

BARBADOS Constitution Chapter III 1.3.4 Evidence Act 1994 1.3.3

IRELAND Criminal Justice Act 1984 s 19A 8.1.2

MALAYA Penal Code

5.2.6

NEW ZEALAND Bill of Rights Act 1990 1.1.2, 1.3.4 Evidence Act 2006 1.2.3, 1.3.3, 6.2.5.1, 13.2 s 6 1.1.2 s 8(2) 1.1.2, 16.2 s 12 1.3.2 s 16(3) 6.2.4 s 18(1) 6.1.2 s 25(3) 7.3.2 s 28 8.2.3 s 29 8.2.2 s 43 12.1.3 s 43(2) 12.1.1 s 43(3) 12.1.1 s 43(3)(e) 12.1.4 s 43(4) 12.1.2 s 45 13.2, 13.2.3 s 45(4)(d) 13.2.1

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SINGAPORE Criminal Procedure Code 2010 s 261 8.1.2

s 76(2)(a) 8.2.2 s 76(2)(b) 8.2.3 Code D 13.2.2

SOUTH AFRICA

UNITED STATES

Law of Evidence Amendment Act 45 of 1988 s 3 6.1.2

Federal Rules of Evidence 1975 rule 401(1) 4.1.1 rule 413 12.1.4 rule 414 12.1.4 rule 804(b)(6) 6.2.5

UNITED KINGDOM Criminal Justice Act 2003 1.3.3 s 101(3) 12.1.3 s 114(1)(d) 6.1.2, 6.1.3 Criminal Justice and Public Order Act 1994 s 34 8.1.2 Police and Criminal Evidence Act 1984 1.3.3, 13.2

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1.3.3, 7.3.2

INTERNATIONAL INSTRUMENTS International Covenant on Civil and Political Rights 1.3.4 Art 17 16.5.4.2

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1

UNIFORM EVIDENCE LAW

1

INTRODUCTION The so-called ‘uniform evidence law’ (or ‘uniform evidence Acts’) presently comprise seven Australian statutes: • • • • • • •

Evidence Act 1995 (Cth); Evidence Act 1995 (NSW); Evidence Act 2001 (Tas); Evidence Act 2004 (Norfolk Island); Evidence Act 2008 (Vic); Evidence Act 2011 (ACT); Evidence (National Uniform Legislation) Act 2011 (NT).

Despite the latter statute’s (non-uniform) name, the uniform evidence law is not yet a national law; however, it is getting closer. It is now easier to list the Australian jurisdictions where such statutes have not been enacted. There are just three: Queensland, South Australia and Western Australia. As Heydon J archly observed in Baker v The Queen [2012] HCA 27; (2012) 245 CLR 632, ‘[t]hose polities are very large in area’—indeed, they total nearly 70 per cent of the continent. However, as the Northern Territory’s Law Reform Committee rightly predicted in 2006, it is the holdout jurisdictions that now ‘stand out like an outhouse [sic] in the desert’.1 Australia’s uniform evidence law scheme now has clear ‘majority’ status in two respects: • •

by jurisdiction, reaching seven out of the nation’s ten court systems; and by population, reaching nearly 62 per cent of Australians (ignoring the Commonwealth Act, which applies to federal courts everywhere).

The Northern Territory’s decision to exit its outhouse (while a minor development on the above two measures) more than doubled the geographical coverage of the law and also extended its non-federal version outside the densely populated south-east for the first time. This means that, in just two decades, Australia’s ‘common law of evidence’ has diminished from its position of complete dominance to making a mockery of the adjective ‘common’. The High Court’s rationale for not developing the common law to match the uniform evidence law has switched from a 1999 claim that there is ‘no consistent pattern of legislative policy to which the common law in Australian can adapt itself’2 to a 2012 concern not to alter ‘the common law of evidence in those States which to date have chosen not to adopt the uniform Evidence Act’.3 In short, Australia’s common law of evidence now

1 Northern Territory Law Reform Committee, Report No 30, September 2006, 12. 2 Esso Australia Resources v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49, [23]. 3 Baker v The Queen [2012] HCA 27; (2012) 245 CLR 632, [55].

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qualifies for ‘heritage’ protection. For this reason this textbook does not cover Australian’s common law of evidence, except to the extent that it remains relevant under the uniform evidence law scheme (see [1.3.2] under the heading ‘Common law’). This chapter introduces the uniform evidence law’s basic features. First, it describes the most conservative feature of the scheme: its continuity with earlier traditions of evidence law. Second, it describes and assesses the scheme’s goal of a broadly applicable, uniformly developed and easily found Australian evidence law. Finally, it details the connections between the uniform evidence law and other laws: local statutes, the common law, overseas law and human rights law.

1.1 EVIDENCE LAW By far the most important feature of the uniform evidence law is that it is not a radical change to the previous law. Of course, there are any number of particular provisions that could be described as radical: the new hearsay rule, the new hearsay exceptions, the tendency and coincidence rules, and many others. But to focus on such changes is to miss the (entirely traditional) wood for the (occasionally pruned, chopped down, replaced or even newly planted) trees. Australian evidence law is, and always has been, a bundle of procedural rules that make relatively limited inroads into the freedom of parties and courts to present and find facts as they wish. The uniform evidence law’s basic structure of: • • •

rules providing for various courtroom events (uniform evidence law Part 1: Adducing Evidence); various exceptions and sub-exceptions to the rule that a court can make use of any information that is relevant (uniform evidence law Part 2: Admissibility of Evidence); and some mild controls on the outcomes of that use (uniform evidence law Part 3: Proof)

is identical to the approach (but not the much more amorphous form) of the common law. This part introduces the unchanged purposes of Australian evidence law. It first addresses the law’s primary purpose: to promote the accuracy of legal fact-finding. It then considers alternative  goals that some rules of evidence promote, even to the extent of undermining that primary purpose.

1.1.1 Promoting accurate fact-finding The law of evidence regulates the means by which facts can be proved in litigation. In the vast majority of civil and criminal proceedings, the main point of disagreement between prosecution or plaintiff on the one hand and defendant on the other will not be about the legal consequences of an agreed set of facts; it will be about what the facts actually are. This is the province of the law of evidence. Evidence law is usually described as an aspect of ‘procedural’ or ‘adjectival’ law in order to distinguish it from the ‘substantive’ law, such as the law of contract or the criminal law. As David Paciocco explains: Substantive rules of law purport to impose what society considers, through its law-making institutions, to be a ‘just’ or fitting result where a set of facts exist. The function of the law of evidence is to facilitate those

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rules by regulating the proof of facts so that those substantive laws can be applied to true facts. If the law of evidence impedes the discovery of the true facts, the substantive law is undermined.4

Evidence law’s characterisation as ‘procedural’ law should not be allowed to obscure its fundamental importance. Ascertaining true facts has been a central human endeavour throughout history, but many scholars—from philosophers to sociologists to physicists—have long recognised it as a highly problematic one. Just as courts and lawyers typically give only occasional thought to the deep debates about the nature of ‘law’, evidence law practitioners and scholars generally eschew questions about what ‘facts’ are and what it means for them to be ‘true’. In doing so, they uncritically adopt a tradition of promoting a set of principles about legal proof. These principles are—for the most part—not expressly listed and, indeed, can be formulated in myriad ways. However, few practitioners or scholars of Australian evidence law would disagree with the thrust of the four principles discussed below. That is not to say, of course, that there would not be considerable disagreement about how these principles translate into rules of evidence. None of the principles is used to determine questions about the admissibility of evidence; that task is instead performed by the actual rules of evidence. Indeed, despite the common aim of the basic principles, they typically pull in different directions, allowing for considerable disagreement among those who subscribe to them about what the rules are and how they should be applied.

1.1.1.1  Fact-finding should be rational The most fundamental principle of evidence law is that legal fact-finders should reason rationally. This principle is most visible when courts reject reasoning that is irrational. A commonly cited example is R v Young [1995] QB 324, where a new trial was ordered after an appeal court learnt that the jury in a murder trial had used a ouija board to consult with one of the deceased victims about facts associated with the crime, including the identity of the murderer and the appropriate verdict. Noting that some jurors took the séance seriously enough that they were reduced to tears, the court deemed the events a ‘material irregularity’. However, a newspaper editorial at the time queried whether a juror’s prayer for guidance would be similarly irregular and the court itself was at pains to distinguish its ruling from jurors’ ‘strongly expressed’ attempts to influence each other’s thinking. The requirement that fact-finding be rational is not confined to a rejection of unscientific beliefs. For example, evidence law’s conception of proper reasoning rejects some classically ‘scientific’ approaches, such as a judge reading the (non-legal) academic literature that is relevant to a dispute.5 The principle that reasoning should be rational is really a shorthand for evidence lawyers’ shared and intuitive allegiance to a traditional way of thinking in legal settings. William Twining sets out some of the common assumptions of evidence law’s ‘rationalist tradition’ as follows:6 • •

‘Knowledge about particular past events is possible.’ …‘[O]perative distinctions have to be maintained between questions of fact and questions of law, questions of fact and questions of value and questions of fact and questions of opinion.’

4 D Paciocco, ‘Evidence about Guilt: Balancing the Rights of the Individual and Society in Matters of  Truth and Proof ’ (2001) 80 Canadian Bar Review 433, 436. 5 Aytugrul v The Queen [2012] HCA 15; (2012) 247 CLR 170, [20]. 6 W Twining, Rethinking Evidence, 1990, London: Basil Blackwell, 73.

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• • • •

‘The establishment of the truth of alleged facts in adjudication is typically a matter of probabilities, falling short of absolute certainty.’ ‘Judgments about the probabilities of allegations about particular past events can and should be reached by reasoning from relevant evidence presented to the decision-maker.’ ‘The characteristic mode of reasoning appropriate to reasoning about probabilities is induction.’ ‘Judgments about probabilities have, generally speaking, to be based on the available stock of knowledge about the common course of events; this is largely a matter of common sense supplemented by specialized scientific or expert knowledge when it is available.’

Twining argues that, despite the existence of strenuous criticisms of all of these assumptions and the critical nature of most evidence law scholarship, acceptance of the entire rationalist tradition is virtually unanimous among evidence lawyers and the courts. Indeed, under the uniform evidence legislation, the rationalist tradition is mandatory. The ‘Dictionary’ section of the legislation defines the fundamental concept of the ‘probative value of evidence’ to mean ‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue’ and section 55(1) defines ‘relevant’ evidence as ‘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’. However, the real impact of the rationalist tradition is in the regulation of how evidence that is admitted in proceedings can be used. The assumption in all discussions of evidence law is that the only legitimate uses that can ever be made of evidence are those that involve rational reasoning. Most of the major rules of evidence involve placing additional restrictions on the use of evidence. Any discussion of such rules implicitly assumes that irrational uses will, in any case, never be legitimately available to the fact-finder. Although central to the law of evidence, questions about rational fact-finding such as what it is and how to do it are rarely addressed by courts, statutes or textbooks. There are many reasons for this, including the views that rationality is a matter of common sense and that it is not a legal topic.7 While the authors agree with Twining that rational fact-finding can and should be addressed in legal texts and courses, this text follows the usual approach of assuming that readers already know how to reason rationally and about probabilities. Doing so is made more palatable by the publication of a book on proof and fact-finding written by one of the authors.8

1.1.1.2 Relevant information should be available to the court The next principle is that the fact-finder should have access to all information that is capable of supporting rational reasoning about the facts at issue in the proceedings. If the court fails to take into account such relevant information, then this will obviously increase the chances of it reaching an incorrect verdict. The aim of ensuring that all relevant information is considered by the court gives rise to the only principle of admission in the law of evidence: relevant evidence ought to be admitted. This principle is given expression in section 56(1) as follows: Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.

The words ‘Except as otherwise provided by this Act’ indicate that relevant evidence may nevertheless be excluded because it falls foul of one or more of the exclusionary rules. In practice the principle that all relevant information should be admitted really only ensures the admission of 7 See W Twining, ‘Taking Facts Seriously’, ibid., 12. 8 A Palmer, Proof: How to Analyse Evidence in Preparation for Trial, 2010, Australia: Law Book Co.

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information that has more than merely marginal relevance. Where information has only a slight relevance to the inquiry its exclusion is unlikely to increase the risk of the court making a wrong decision, and can be justified on the grounds that admitting absolutely all relevant information would make litigation too lengthy and expensive. Also, the principle is not a guarantee that court decisions will actually be based on every piece of relevant information. The discovery and availability of relevant information are matters that are mostly beyond the control of any court and, in particular, fall outside of the law of evidence. Even when relevant evidence is known to the parties, the adversarial system places the decision on whether the evidence will become known to the court in the hands of those parties, who may each decide that they prefer the court not to know about a relevant matter. Recognising the threats posed to this rule (and trial judges’ role in testing the admissibility of all evidence) by the availability of information online, some Australian legislatures have now made it a criminal offence for a juror to conduct her or his own research into a case.9 That may perhaps be why the High Court now characterises the use of ouija boards by jurors as ‘irresponsible’.10

1.1.1.3 Irrational fact-finding should be discouraged Discouraging irrational fact-finding is, of course, a further corollary of evidence law’s acceptance of the rationalist tradition. However, the law is not content to achieve this role passively through the encouragement of rationality. Rather, a core concern of evidence law is the taking of active measures against irrationality, especially when fact-finding is in the hands of lay jurors. One aspect of the discouragement of irrationality is the most fundamental ‘exclusionary’ rule in evidence law. Just as the promotion of accurate fact-finding requires the admission of relevant information, so it requires that the court does not take into consideration irrelevant information. Section 56(2) provides: Evidence that is not relevant in the proceeding is not admissible.

The existence of this rule supposes that there is some harm in allowing irrelevant information to be considered by the court. One might ask: if the information cannot be rationally used, then will it not simply be ignored by the court? Possible answers are that the evidence might be used irrationally, especially if its admission is understood as condoning its use by the fact-finder, or that the admission of irrelevant evidence is a waste of time and resources, ultimately compromising accurate fact-finding. In the end, irrelevant evidence is rejected because any argument favouring its admission will be anathema to the rationalist tradition. Notably, section 56(2) is not subject to any exceptions in the uniform evidence law. That being said, the inadmissibility of irrelevant evidence cannot prevent a court from considering some irrelevant information. Fact-finders are people with lives independent of a court room and, accordingly, will carry both relevant and irrelevant information into the proceedings with them. Moreover, courts cannot exercise total control over events within the proceedings, so fact-finders will often be aware of irrelevant matters such as the appearance of the parties, the character of their lawyers, and so on. In extreme cases—such as where a trial has been the subject of discussion in the media—further steps may be taken to discourage reliance on irrelevant facts. For example, when the English Court of Appeal ordered a new trial after learning that the jury had used a ouija board, it banned the publication of its reasons until after that trial, so that the new jury would not learn what answers the deceased supposedly gave during the séance.

9 Jury Act 1977 (NSW), s 68C; Juries Act 2000 (Vic), s 78A. 10 Smith v Western Australia [2014] HCA 3; (2014) 88 ALJR 384, [28].

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A further aspect of evidence law’s discouragement of irrationality is the regulation of the ‘risk of unfair prejudice’ of evidence, the irrational twin of the concept of the ‘probative value’ of evidence, mentioned earlier. The concept of prejudice was explained by the Australian Law Reform Commission in the following way: By risk of unfair prejudice is meant the danger that the fact-finder may use the evidence to make a decision on an improper, perhaps emotional, basis, i.e. on a basis logically unconnected with the issues in the case. Thus evidence that appeals to the fact-finder’s sympathies, arouses a sense of horror, provokes an instinct to punish, or triggers other mainsprings of human action may cause the fact-finder to base his decision on something other than the established propositions in the case. Similarly, on hearing the evidence the fact-finder may be satisfied with a lower degree of probability than would otherwise be required.11

In other words, evidence is prejudicial when it creates the risk that the fact-finding process may become emotional instead of rational and objective; when it may direct the fact-finder’s attention towards issues logically unconnected with the questions to be decided at trial; or when it may make the fact-finder antipathetic to one of the parties. An example is an incident from the same matter where the jury used a ouija board. A crucial issue in that trial was whether a double murder was committed by a lone killer (as the prosecution claimed) or a pair of killers (as the defence claimed). One piece of evidence was a tape where the footsteps of the killer(s) could be heard. Unfortunately, the tape was a recording of an emergency call made by one of the victims, who had already been shot in the jaw. Horrifically, she was unable to speak and was audibly shot again while the oblivious operator dismissed the call as a child’s prank. When one juror realised what she would be asked to listen to, she asked to be excused from the jury. The judge dismissed the entire jury, replacing it with the one that tried to commune with a victim. Because prejudicial evidence has a tendency to bypass the intellect, a judicial warning not to reason irrationally may not be effective. Drastic measures such as dismissal of the jury or preventing the jury from hearing the evidence at all may therefore be the only method of ensuring that the evidence does not distort the fact-finding process. In the case of the victim’s emergency call, the judge chose to edit out the most horrific parts of the tape, but otherwise allowed the tape to be played, because of its importance to the defence case.

1.1.1.4 Unreliable information should be treated with caution Some commentators support the notion that the only role of evidence law is to facilitate the admission of relevant information and its rational use by the fact-finder. In other words, there should be ‘free proof ’, at least in one of the senses that that term is used.12 If this approach were followed then evidence law would be much less complicated than it is (and discussions of evidence law would focus more on the nature of rational fact-finding). However, contemporary evidence law is informed by a series of value judgments about when fact-finders can—and, more importantly, cannot—be trusted to find the facts correctly. Accordingly, a major part of the law of evidence is the identification and management of unreliable sources of information. This approach goes further than the other three principles discussed above, because it applies to information that clearly provides rational support for a particular conclusion but where that conclusion is nonetheless attended by significant doubt. Even putting aside its horrifying content, the tape of the victim’s emergency call may fall into this category, because of the obvious

11 Australian Law Reform Commission, Evidence (Interim), Report No 26 (1985) Volume 1, [644]. 12 See W Twining, ‘Freedom of Proof and the Reform of Criminal Evidence’ (1997) 31 Israel Law Review 439, 447–8.

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difficulties in using an audio tape of distant footsteps to determine how many people were present at a crime scene. There are really two ways to treat unreliable evidence cautiously. The first method is to admit it, but to alert the tribunal of fact to the dangers of acting on it. The second is simply to exclude the evidence. As a general proposition, one can argue that the first of these methods provides the best way of dealing with unreliable evidence. This is because it is difficult to see how depriving the court of relevant information can possibly promote accurate fact-finding. Admitting the evidence but alerting the jury to the dangers of acting on it, on the other hand, would seem to accord both with the principle that relevant information should be admitted and with the principle that unreliable information should be treated with caution. Exclusion may, however, be justified in either of two ways. The first is to argue that a jury is simply not to be trusted with unreliable information; better to exclude it altogether than to run the risk that the jury will give it a weight that it does not deserve. Although this belief undoubtedly played a role in the development of the law of evidence, the law’s traditional mistrust about the ability of juries to accurately assess the weight that should be given to particular types of evidence is obviously difficult to reconcile with the oft-made comments about the exceptional aptitude of the lay jury for the task of fact-finding. When evaluating the law of evidence it is, therefore, important to keep in mind the following question: is the exclusion of this evidence more likely to promote or impede accurate fact-finding? An example of this vexed problem is the use of expert witnesses. For example, the prosecution in the ouija board case called a person who claimed to have expertise in interpreting the sound of footsteps. The opinion rule and its exception for specialised knowledge (discussed in Chapter 7: Opinion) grapples with the question of whether such evidence is more likely to assist the jury (with expert knowledge the jury lacks) or to impede them (by potentially exposing them to quackery). The second justification for exclusion may be that there is some aspect of the evidence that makes it particularly difficult for anyone, including a jury, to assess objectively. For example, if a jury learns that the defendant confessed, it may be extremely difficult for the jurors to put this out of their minds, even if they also hear evidence suggesting that the confession was procured by coercion and is therefore likely to be unreliable. In other words, the mere fact that a confession was made may make it difficult for the jury to accurately weigh the evidence against the defendant. The true basis for excluding evidence that has this feature may not be that the evidence is unreliable, but that it is prejudicial.

1.1.2 Competing goals Although none of the uniform evidence Acts have a meaningful purpose clause, such a clause does exist in New Zealand’s statute:13 The purpose of this Act is to help secure the just determination of proceedings by— (a) providing for facts to be established by the application of logical rules; and (b) providing rules of evidence that recognise the importance of rights affirmed by the New Zealand Bill of Rights Act 1990; and (c) promoting fairness to parties and witnesses; and (d) protecting rights of confidentiality and other important public interests; and (e) avoiding unjustifiable expense and delay; and (f) enhancing access to the law of evidence.

13 Evidence Act 2006 (NZ), s 6.

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It would not be controversial to state that similar purposes (perhaps substituting common law rights for those referred to in sub-section (b)) are reflected in the uniform evidence law. However, what is potentially controversial is the claim that the first of these purposes (which is concerned with establishing the facts) could be limited to an extent by the other purposes (which are concerned with other issues of justice and fairness). Some argue that the promotion of accurate fact-finding is the only acceptable justification for the exclusion of evidence. For example, L’Heureux-Dubé J of the Canadian Supreme Court has repeatedly asserted this view: One cannot over-emphasize the commitment of courts of justice to the ascertainment of the truth. The just determination of guilt or innocence is a fundamental underpinning of the administration of criminal justice. The ends of the criminal process would be defeated if trials were allowed to proceed on assumptions divorced from reality. If a careless disregard for the truth prevailed in the courtrooms, public trust in the judicial function, the law and the administration of justice would disappear. Though the law of criminal evidence often excludes relevant evidence to preserve the integrity of the judicial process, it is difficult to accept that courts should ever willingly proceed on the basis of untrue facts.14

In a pair of articles, Paciocco has proposed a variation on this approach that requires it to be applied especially strictly in relation to arguments aimed at establishing that a criminal defendant is innocent of the crime charged, but allowing for more variation in relation to prosecution evidence of guilt.15 These are important views that must be constantly borne in mind when evaluating the law of evidence. However, whatever the merits of these approaches, the contemporary law of evidence cannot be exclusively explained on the basis of the goal of promoting accurate fact-finding. Rather, other interests that compete with that goal do have an impact on the law of evidence, even causing courts to allow fact-finding to occur on the basis of untrue—or at least misleadingly incomplete—facts. The discussion below divides those interests into two groups: first, those protecting the capacity of the courts to function; second, those protecting other public interests.

1.1.2.1 The proper functioning of the courts Even L’Heureux-Dubé J concedes that sometimes relevant evidence must be excluded to ‘preserve the integrity of the judicial process’. While evidence law is often seen playing a supporting role to the substantive law, it is also an important component of the court system that enforces the law. As Brennan J observed in Pollitt v The Queen: The law of evidence, though adjectival, is the working tool which a trial judge must keep constantly at hand and the principles of the law of evidence are, so to speak, the ground on which the dynamics of a trial, especially a criminal trial, are played out.16

Institutional considerations operate as a brake on evidence law’s pursuit of accuracy in fact-finding in a number of ways. The variety of different fact-finding scenarios sometimes demands highly complex and subtle rules to facilitate the goal of accuracy; however, excessive complexity in a law that regulates the dayto-day operation of the courts would ultimately hamper the very justice system that the evidence law is meant to serve. This was the point Brennan J was making in Pollitt, in response to calls for a more nuanced hearsay rule that was more attuned to the possible reliability of such evidence: 14 R v Noël (2002) 218 DLR (4th) 385, 427, affirming a passage in R v Howard [1989] 1 SCR 1337, 1360. 15 D Paciocco, ‘Balancing the Rights of the Individual and Society in Matters of Truth and Proof: Part II— Evidence about Innocence’ (2002) 81 Canadian Bar Review 39 c.f. Evidence Act 2006 (NZ), s 8(2). 16 Pollitt v The Queen [1992] HCA 35; (1992) 174 CLR 558, 573.

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It would be possible, no doubt, to redesign the law of evidence with the assistance of psychologists and philosophers versed in epistemology but it cannot be done piecemeal or by extensions which are not linked to an underlying principle … To attempt such alterations, however pragmatically desirable in one case, will throw the next case into confusion. There is an attraction in the notion that the admissibility of hearsay should be governed by a judicial assessment of its reliability, but there are countervailing arguments.17

The impossibility of framing a rule in advance that is sufficiently robust to deal with all factual scenarios leaves the courts and legislatures with two alternatives. One is to frame broad-brush rules that are broadly supportive of accurate fact-finding but sometimes hamper the accuracy of fact-finding in individual trials.18 The other is to leave matters largely to the discretion of individual trial judges, with the inevitable result that the goal of promoting accurate fact-finding will be pursued in a variety of different—and possibly inconsistent—ways.19 The former approach was supported by Attorney-General Hulls when introducing Victoria’s Bill to enact the uniform evidence law: [T]he parties must be given, and feel they have had, a fair hearing. To enhance predictability, the rules should be clear to enable preparation for, and conduct of, trials and tend to minimise judicial discretion, particularly in the rules governing the admissibility of evidence.

However, as this textbook will demonstrate, the uniform evidence law, much like the common law, involves a mixture of both approaches. Also, while the goal of accurate fact-finding is often best served by a comprehensive and exacting analysis of all relevant information, the justice system’s resources—in terms of time, personnel and capacity to process information—are far too limited to allow all relevant inquiries to be pursued. Accordingly, evidence law provides a number of outlets for trial judges to balance the needs of court resources against the goal of accurate fact-finding, notably the regulation of the examination of witnesses and the rules governing the admission of evidence on ‘collateral’ matters.20 The High Court recently confronted these tensions in a case concerning the common law rule barring the admission of evidence of jury deliberations.21 The rule seeks to ensure that jurors can speak frankly and to preserve the finality of verdicts. As well, it relieves courts from the need to make fraught inquiries into events in the jury room, for example determining why a note was left in a jury room stating that one of the jurors had been ‘physically coerced’ into reaching a guilty verdict. In the past, the courts have applied the rule in rigid ways, barring all evidence of what happened in the jury room (such as physical coercion), while allowing evidence of ‘extrinsic’ events (such as jurors using a ouija board while staying overnight in a hotel). However, in Smith v WA [2014] HCA 3; (2014) 88 ALJR 384, the High Court took a more flexible approach that recognised that events that ‘cast a shadow over the administration of justice’ (such as the spectre of physical coercion) should always be characterised as extrinsic to deliberations and hence outside the scope of the rule. In doing so, the Court prioritised the goal of accurate fact-finding (and, in particular, the reduction of artificial barriers to ascertaining what happened) over the goals of insulating jurors, courts and the criminal justice system from the costs of trying to learn (and perhaps succeeding in learning) what occurs inside the jury room.

17 18 19 20 21

Ibid. See, for example, the discussion of Kirby J in Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650. See especially the discussion in Chapter 16: Discretionary and Mandatory Exclusions. See especially Chapter 2: Witnesses; and Chapter 11: Credibility. Preserved under the uniform evidence law by s 9(2)(a) (and see s 129(4) for a narrower form of the rule that does not apply in appeals).

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1.1.2.2 Other public interests Reference to goals other than the promotion of accurate fact-finding and the preservation of the courts in Australian evidence law is much more contentious. Evidence law’s characterisation as ‘procedural’ law suggests that it is not an appropriate vehicle for the pursuit of public interests (other than accurate fact-finding by a functioning court system). In 1999, the High Court considered an argument that the paramountcy principle of family law—that the best interests of children is the ‘paramount consideration’ in curial decision-making about parenting—applied to the law of evidence. The majority rejected the view that rules about admissibility or procedure should be read as subject to the best interests of children: The ‘paramountcy principle’ is a principle to be applied when the evidence is complete. Except where statute provides to the contrary, it is not an injunction to disregard the rules concerning the production or admissibility of evidence.22

Kirby J dissented, referring (among other considerations) to the international Convention on the Rights of the Child, which ‘makes no artificial distinctions between a final judicial decision affecting the interests of a child and interlocutory decisions anterior to such a final decision’.23 The debate over the role of broad public interests in the formation and application of rules of evidence is an aspect of a wider debate about the function of the courts in promoting public welfare. In nations that provide citizens with constitutional protections from particular investigative conduct, courts typically regard their function as including the use of evidence law—specifically the exclusion of improperly obtained evidence—to vindicate individual rights or to deter their breach. This contrasts with Australia—one of the few comparable nations without entrenched constitutional rights regulating state conduct—where the equivalent rule of evidence tends to be justified on the narrower basis of preventing the courts from being tainted by impropriety, an approach that must be balanced against the illegitimacy that would flow from inaccurate fact-finding.24 One established area where other public interests do sometimes override the goal of accurate fact-finding is when it is in the public interest to maintain the confidentiality or secrecy of a particular type or item of information. In particular, the entire law of privilege involves the withholding of relevant information from the tribunal of fact on the basis that this is required by one or other aspects of the public interest.25 For example, client legal privilege is based on the idea that confidentiality in the lawyer–client relationship is so fundamental to the effective administration of justice that the public interest in the administration of justice requires that the confidential communications between lawyer and client be protected from disclosure in court. Note that this important example of a compromise of the goal of promoting accurate fact-finding occurs in a context that is very closely tied to the proper functioning of the justice system.

1.2 UNIFORM LAW Just as the uniform evidence law’s concept of ‘evidence law’ is entirely traditional, the notion of making such a law uniform across Australia is hardly radical. The previous common law of evidence was, after all, the same across Australia. Nevertheless, when the Australian Law Reform

22 23 24 25

Northern Territory v GPAO [1998] HCA 8; (1999) 196 CLR 553, [198]. Ibid., [231]. See Chapter 16: Discretionary and Mandatory Exclusions, [16.5.3]. See Chapter 14: Privileges.

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Commission was asked to review the law of evidence in Australia’s federal courts (which at the time ‘picked up’ the law of the state they sat in), its Commissioners pronounced themselves amazed at the ‘remarkable’ differences in the law across Australia.26 The explanation was twofold: first, the common law of evidence was full of uncertainties, derived largely from its unwritten nature and the chaos of fact-specific precedents. Second, in response to both the uncertainties and the common law’s antiquated nature, it had been modified by disparate local statutes that were not uniform and were themselves subject to differing interpretations. The Commission’s solution to both problems was a new evidence law statute, applicable in all federal and territory courts. Given the unsatisfactory state of the existing law, merely reducing it to statutory form would not suffice. Instead, the Commission recommended a simultaneous reform of the law, both to make it simpler to use and to respond to contemporary developments. The uniform evidence law project is, therefore, a classic exercise in grand-scale law reform. Indeed, the goal of ‘uniformity’ may just be a clever way of marketing a series of abstract reforms that had no political constituency. The strained political case for the bulk of the reform package can be seen in the media releases and second reading speeches concerning the new laws, which emphasised a marginal reform—section 51’s abolition of the ‘original document rule’— which, it was claimed, would save ‘businesses about $10 million a year’!27 The uniform evidence law has clearly succeeded in terms of its take-up by significant Australian jurisdictions. Whether its reforms of the law of evidence are themselves successful is another matter that will be addressed throughout this book. This part evaluates the success of the uniform evidence law’s broader goals of changing how Australian evidence law is applied, found and developed.

1.2.1 Application One of the purposes of the uniform evidence law was to provide a single law for Australia’s disparate legal proceedings, replacing the earlier trend of tribunals and some court proceedings being exempted from the law. Section 4 governs the statutes’ application. The key proposition in section 4(1) is that each statute applies to ‘all proceedings’ in a particular set of courts: • • •

the top court of each jurisdiction (the High Court and the Supreme courts); courts ‘created by’ each jurisdiction’s parliament; and any person or body that exercises a law of that jurisdiction and ‘is required to apply the laws of evidence’.

The second category has been held to be limited to a court ‘created by Parliament as such’, so it does not apply to a body that is called a court but has different functions, such as the NSW Coroners’ Court.28 The uniform evidence law also does not apply to executive decision-makers, but does apply to courts reviewing such decisions.29 26 Australian Law Reform Commission, Evidence (Interim), Report No 26 (1985) [93] and [217]. 27 R Hulls, ‘New Evidence Laws to Save Costs for Businesses’, 24 June 2008, available at http://archive.premier. vic.gov.au/newsroom/2716.html. See also the second reading speech for the Evidence Bill 2001 (Tas), which concluded: ‘Mr Speaker, the Evidence Bill paves the way for significant reforms to the application of evidence law in the courts. The bill will permit significant savings in government storage costs by enabling departments and statutory authorities to abandon storage of original documents after their microfilming or transfer to other modern storage media.’ 28 Decker v State Coroner (NSW) [1999] NSWSC 369. 29 Cabal v United Mexican States [2001] FCA 427; (2001) 108 FCR 311.

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The third category in section 4(1) excludes statutory non-court bodies that are expressed not to be bound by either the law of evidence or the (arguably narrower) ‘rules of evidence’.30 While this provision preserves the earlier exemptions from evidence law, it nevertheless operates to broaden the law’s application when the position is more ambiguous. The full Federal Court has held that the uniform evidence law applies to appeals against decisions by the Commissioner of Patents, despite laws empowering the appeal court to admit evidence that was considered by the Commissioner (who is not bound by the rules of evidence) and to ‘admit further evidence orally, or on affidavit or otherwise’.31 The most important feature of section 4 is that it applies on a court-by-court basis, rather than to all proceedings heard within a particular jurisdiction. Thus, the Evidence Act 1995 (Cth) applies to the federal court system, while each of the New South Wales, Norfolk Island, Tasmanian, Victorian, Australian Capital Territory and Northern Territory statutes applies in those respective court systems. This approach avoids the unpalatable prospect of courts in some Australian jurisdictions applying both the uniform evidence law and the common law. Instead, in Queensland, South Australia and Western Australia, the uniform evidence legislation only applies in federal courts, while the common law of evidence continues to apply in state Supreme and lower courts (including federal matters tried in those courts). But this feature is complicated by the variety of things that courts do. Section 4’s operation is limited to ‘proceedings’, so courts that do apply the uniform evidence law will not be bound by that law in some contexts that do not amount to proceedings. Some early judgments held that ‘proceeding’ (which is not defined) could cover non-adversarial inquiries, such as court examinations of corporate officers;32 however, a more recent view is that the uniform evidence law only applies in disputes between parties where evidence is adduced.33 Also, while section 4(1) includes bail, interlocutory, chambers and sentencing matters in the definition of ‘proceedings’, there are statutory exemptions for: • • •

appeals to federal courts (including the High Court) from courts that are not bound by the uniform evidence legislation;34 interlocutory matters, where courts retain their common law power to dispense with the rules of evidence as necessitated by the circumstances;35 and sentencing matters, unless the court directs otherwise in the interests of justice (including when a party applies for a direction in relation to proof of a fact that will be significant in determining a sentence).36

The latter exemption curiously may mean that the common law of evidence will typically apply in most sentencing matters throughout Australia (albeit in an attenuated form due to the informality of those proceedings).37 The uniform evidence law purports to continue the common law tradition of setting out a single set of rules applicable to all proceedings, rather than different rules for different types of proceedings. However, this position is undermined by other statutes that exclude particular parts 30 31 32 33 34 35 36 37

Epeabaka v Minister for Immigration & Multicultural Affairs (1997) 76 FLR 101. Commissioner of Patents v Sherman [2008] FCAFC 182; (2008) 172 FCR 394. Re Interchase Corp Ltd (1996) 68 FCR 487. Griffin v Pantzer [2004] FCAFC 113; (2004) 137 FCR 209. Section 4(5) of the Evidence Act 1995 (Cth). Section 9. Section 4(2)–(4). R v Bourchas [2002] NSWCCA 373; (2002) 133 A Crim R 413, [39]–[61]; Talukder v Dunbar [2009] ACTSC 42; (2009) 194 A Crim R 545, [19].

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of the statutes for entire categories of proceedings. Notably, section 69ZT of the Family Law Act 1975 (Cth) excludes many of the rules of evidence (including all of Part 3’s admissibility rules other than relevance, privilege and discretionary exclusion) in ‘child-related proceedings’ unless the court deems the circumstances to be exceptional. The Australian Law Reform Commission, commenting on this exclusion, observed that the policy ‘that the uniform Evidence Acts should remain Acts of general application’ made it appropriate for policy questions particular to some proceedings be resolved ‘outside of the rubric of the uniform Evidence Acts’.38 The claim that the uniform evidence law is ‘of general application’ is debateable even in proceedings that are not exempted from the rules of evidence. Reflecting heightened concerns about the accuracy of fact-finding in criminal trials, many of the legislation’s provisions are either limited to prosecution evidence in criminal proceedings or have a stricter application to such evidence. Moreover, many of the rules that do apply in civil proceedings may be dispensed with by a court (in relation to matters not ‘genuinely’ in dispute or where the rules would ‘cause or involve unnecessary expense or delay’) without the consent of one or both parties.39 Arguably, it would be more accurate to describe the uniform evidence law as setting out two sets of rules: a broad and stricter set for criminal proceedings (and, in particular, prosecution evidence) and a narrower and more discretionary set for civil proceedings.

1.2.2 Development In contrast to some other national uniform schemes in Australia (such as the Australian Consumer Law), there is no single text of the uniform evidence law. Rather, responsibility for the law is shared between each legislature in each adopting jurisdiction. The goal of uniformity depends on the adoption of identical statutes by each parliament and adherence to a coordinated process for amending those statutes. To date, both features of the uniform evidence law have been successes, but only partial ones. As noted earlier, uniform evidence statutes are now in force in seven out of Australia’s ten legislatures. Of the remaining three, adoption remains (in theory, at least) on the ‘legislative agenda’ in two.40 The South Australian government ‘keeps a watching brief on Uniform Evidence Act provisions that might be of use in South Australia and may usefully be adopted into South Australian evidence law’.41 Even in Queensland, the only jurisdiction to openly reject the new model, the law has nevertheless been partially followed in some respects.42 However, these apparent successes obscure a more subtle failure. The seven statutes are actually all different, although the differences are mostly relatively minor. For example, Tasmania eschews the approach of having an appendix ‘Dictionary’ of key terms, Victoria refers to a criminal defendant throughout as ‘the accused’ and the Northern Territory has a non-uniform name. This treatise ignores these purely stylistic differences when extracting relevant provisions. However, differences of substance cannot be ignored and will be noted where relevant. The uniform evidence legislation has undergone one major round of coordinated law reform, involving a unique joint law reform inquiry by the federal, NSW and Victorian bodies (with minor involvement by others), followed by endorsement of the reform package (albeit with slight changes) by the Standing Committee of Attorneys-General (SCAG). While marred by early enactment of 38 39 40 41

Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005) [20.74]. Section 190(3). Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005) [1.11]–[1.12]. South Australian Law Reform Institute, Computer Says No: Modernisation of South Australian Evidence Law to Deal with New Technologies, Issues Paper 1 (2012), 2. 42 See ss 93B and 93C of the Evidence Act 1977 (Qld).

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some reforms in NSW,43 delayed enactment of the entire package in Tasmania,44 non-enactment to date in Norfolk Island and minor divergences in other jurisdictions, the process was nevertheless a showpiece of what the uniform evidence law system can achieve in a federation. Alas, more recently, the commitment to uniformity has broken down in the face of local concerns, notably NSW’s reduction of the ‘right to silence’ in early 201345 and Victoria’s proposals later that year to move provisions on jury directions to a separate statute and to add special rules of evidence protecting homicide victims.46 The development of evidence law is not only shared among Australia’s parliaments but also among each jurisdiction’s courts, who both interpret the law and apply it. The involvement of courts can undermine uniformity in two respects. First, a number of key provisions have, at times, acquired different meanings in different courts. The most notable current example is a sharp divergence in the interpretation of a core term in the uniform evidence law—probative value— between the top courts of NSW and Victoria.47 Divergences may also occur due to different rules of statutory interpretation in each jurisdiction.48 Second, different practices in discretionary decisionmaking can lead to effectively different evidence law systems across jurisdictional boundaries and even within particular courts. In theory, the High Court, as the ultimate appellate court in Australia, should be a centripetal force in the interpretation of the uniform evidence law. However, some of its judges have instead issued vehement criticisms of the new law from the Bench: As an Act which had as one of its purposes the clarification and simplification of evidentiary questions, it has had at best mixed success. Far too often this Court has had to decide questions arising under it, for which in the past, common law, or earlier well understood statutory provisions provided the answer. The number and complexity of those cases exceed what might ordinarily be expected in respect of even a new and significantly changed legislative regime.49

In turn, a number of the Court’s decisions on the new law (and parts of the surviving common law) were specifically reversed in the 2007 round of law reforms. Whatever the substantive merits of those amendments, they have reduced the useability of the legislation, due to both more complex statutory provisions and the loss or reduced utility of a decade of High Court rulings.

1.2.3 Accessibility Arguably, the major advantage of the uniform evidence law is that it is an uncommonly clear and readable statute, not only in comparison to the unwritten common law or to other evidence law statutes, but to other statutes more generally. Accessible features include: • •

a clear structure of chapters, parts and divisions; express references to rules and exceptions to those rules;

43 Evidence Amendment (Confidential Communication) Act 1997 (NSW); Evidence Legislation Amendment Act 2001 (NSW). 44 Evidence Amendment Act 2010 (Tas). 45 Evidence Amendment (Evidence of Silence) Act 2013 (NSW). 46 Jury Directions Amendment Bill 2013; Department of Justice, Defensive Homicide: Proposals for Legislative Reform, September 2013. 47 Dupas v The Queen [2012] VSCA 328; (2012) 218 A Crim R 507, [63]. 48 Notably, the federal and ACT statutes are subject to a stronger rule on purposive interpretation (Acts Interpretations Act 1901 (Cth), s 15AA; Legislation Act 2001 (ACT), s 139) than the rule that applies in the remaining jurisdictions. 49 Dhanhoa v the Queen [2003] HCA 40; (2003) 217 CLR 1, [89] (per Callinan J).

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relatively few lengthy provisions; a dictionary of commonly used terms; extensive use of notes, providing examples and cross-referencing; a system for common numbering of provisions in the various jurisdictions’ statutes; and a diagram of the main rules of admissibility.

As will be outlined in this book, the law has also been made significantly more useable through simplification. Despite this, the statutes routinely trip up even the most experienced users. For example, a decade after the Commonwealth statute was enacted, Heerey J interpreted section 79’s ‘specialised evidence exception’ as barring evidence on matters of common knowledge, unaware that he was resurrecting a common law notion expressly discarded by the uniform evidence law in section 80(b); the result was years of further proceedings.50 The same judge himself later noted practitioners’ penchant for continuing to cite the well-known common law judgment of Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, instead of its statutory replacement in s 140(2).51 Heerey J mocked this approach (and perhaps himself) by putting the phrase ‘Isn’t there something in the Evidence Act about this?’ in his judgment’s headnote. Three features of the uniform evidence law limit its accessibility. The first is the inaccessible nature of its subject-matter. Despite their name, many of the so-called ‘rules of evidence’ do not regulate evidence as such, but rather particular uses that a court might make of certain items of evidence. A deep understanding of rational fact-finding—a matter not typically addressed in statutes, cases, treatises or law courses—remains an indispensable prerequisite to any understanding of the rules of evidence. Unfortunately, this feature of evidence law is obscured by the recurrent references to ‘admissibility’ in the legislation, implying that rules such as the hearsay, opinion, credibility, tendency and coincidence rules are concerned with whether or not a court will learn of a particular item of evidence, instead of whether the court is permitted to make a particular use of that evidence. Users of the uniform evidence law would be well served by replacing the word ‘admissible’ with ‘used’ throughout the statute. Second, the statute’s rigidly logical structure itself poses a challenge. The statute often addresses single issues with multiple interlocking rules that make little sense when considered separately and that can be easy to miss without a close reading of the whole statute. 52 Important examples include the crucial role of the Dictionary (including clauses buried at the end of it) in understanding particular regimes (such as hearsay exceptions) and the complex rules on when a witness’s prior statements can be used by the court. Except to those least daunted by reading complex statutes, the accessibility of the statute depends, at least in part, on annotations, textbooks and expository judgments. This treatise uses flowcharts to make some of the interactions more accessible, although (as can be seen) this approach has its limits and is no substitute for the prose. Finally, the goal of uniformity is itself somewhat at odds with the process of regular refreshing that is often necessary for often-used statutes. The uniform evidence legislation was drafted in part to overcome the inaccessible nature of earlier evidence statutes that were weighed down by a 50 See Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2009] FCAFC 8; (2009) 174 FCR 175 and earlier judgments in those proceedings. 51 Granada Tavern v Smith [2008] FCA 646, [96]; (2008) 173 IR 328. 52 E.g. Hawker v The Queen [2012] VSCA 219, [27], where the Court of Appeal recently castigated a trial judge and lawyers for ‘proceed[ing] on the erroneous footing that s 13’—the uniform law’s test for competence—‘could somehow render [a pre-trial] witness statement inadmissible’, apparently unaware that s 61 (a provision concerning the admissibility of hearsay in a separate Chapter of the statute) expressly provides for that possibility.

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history of tinkering with and responding to now-forgotten issues, their use of outdated terminology and their accretion of judicial glosses that ameliorate some of their flaws. Alas, the 2007 round of reforms of the statutes had a similar piecemeal nature, with the law reform commissions recommending specific reversals of flawed judgments and corrections of earlier bad drafting, but eschewing complete rewrites of provisions and divisions that the courts had reinterpreted to make them workable. This approach is unsurprising, as great changes would have provoked a backlash from practitioners and judges who had made the effort to get used to the existing provisions. But the result is that the Northern Territory in 2011, while purporting to enact a cutting-edge, model statute, actually adopted a decades-old law that had gone slightly to seed. While the Evidence (National Uniform Legislation) Act 2011 (NT) is undoubtedly a major improvement on the seventy-year-old Evidence Act 1939 (NT), not to mention the centuries-old common law, it is nevertheless a less modern and more difficult statute than New Zealand’s Evidence Act 2006. The latter not only benefited from avoiding the mistakes of the Australian law, but has been amended much more regularly in response to recognised omissions, court decisions and new developments.

1.3 OTHER LAWS Despite its goal of a fresh start on evidence law, the uniform evidence law is not a code. Rather, like other regular statutes, it operates and must be understood in the context of myriad other laws. This part briefly outlines the effect or influence of four sets of laws that sit outside of the uniform evidence law.

1.3.1 Other statutes Section 8 of each of the statutes provides that the statute ‘does not affect the operation of the provisions of any other Act’. So, all other statutory rules of evidence override the uniform evidence law, whether they were enacted before that law or after it. This approach reflects the fact that the uniform evidence law is not a comprehensive evidence law. Its drafters were well aware that Australia’s statute books are replete with specific rules of evidence where consensus across jurisdictions was unlikely (for example, rape shield laws and recording requirements for confessions) or that were specifically for particular subject-matters (such as unique rules for corporate law and family law). Including such rules in the uniform evidence law would have damaged both its chances of widespread adoption and its claim to be a general law of evidence. That being said, excluding them means that the goals of unifying and simplifying Australia’s evidence law, and in particular the aim of making the law more accessible, can only be achieved for part of that law. The practical result of section 8 is that courts and lawyers need to look at all the jurisdictions’ own statute books (as well as federal provisions, which may override state and territory ones) to fully determine questions of admissibility and procedure, even when those questions appear to be completely dealt with by the uniform evidence law. This task was made easier in some enacting jurisdictions by simultaneous legislation repealing or continuing many of the pre-existing local statutory rules.53 Confusingly, some of those jurisdictions have preserved older evidence statutes also once known as ‘Evidence Acts’, though these are neither comprehensive nor uniform. Variations on this approach include Tasmania’s inclusion of local non-uniform laws within its uniform statute, and the Northern Territory’s keeping the name ‘Evidence Act’ for its non-uniform statute and its adoption of a provision apparently modifying the effect of section 8.54 53 For example, Evidence (Consequential and Other Provisions) Act 1995 (NSW). 54 Evidence Act 1939 (NT), s 6.

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For statutory rules not expressly dealt with when the uniform evidence legislation was adopted (or enacted subsequently), courts must determine whether they override all or some of the uniform evidence law. Categories of overriding laws include: • • •

statutes stating that some courts are not required to follow the rules of evidence; statutes setting out rules that are directly inconsistent with sections of the uniform evidence law (such as new exclusionary rules or modifications of the standard of proof); and provisions that set out different rules from those provided for in the uniform evidence law (for example, an expert certificate regime that differs from section 177).

Despite section 8, it is also possible that some other laws will not survive the enactment of the uniform evidence law. The Federal Court has held that an earlier rule on confessions, not repealed by the Norfolk Island Legislative Assembly when it enacted the Evidence Act 2004 (Norfolk Island), was nevertheless impliedly repealed by that enactment.55 This ruling, while probably a sound reading of the Assembly’s intentions, nevertheless seems inappropriate in light of section 8 and the beneficial nature of the provision in question.

1.3.2 Common law Section 9 of the state and territory statutes provides that they ‘do not affect the operation of a principle or rule of common law or equity in relation to evidence … except so far as this Act provides otherwise expressly or by necessary intendment’. Section 10 provides for a similar rule for a court’s inherent power to control a proceeding (which, while often preserved in court or constitutional statutes, is nevertheless derived from the common law). So, the common law of evidence and procedure (both as it existed and as developed subsequently by the High Court)56 survives to an extent under the new state and territory statutes. Unlike local statutes, the common law’s survival depends on its compatibility with the rest of the uniform evidence law. On one view, the common law of evidence must always give way to rules in the new statutes that are expressed without qualification or that only allow for exceptions set out in the uniform evidence law, for example: • • • •

section 12, providing that everyone is competent and compellable ‘[e]xcept as otherwise provided by this Act’; section 56(1), providing that relevant evidence is admissible ‘[e]xcept as otherwise provided by this Act’; section 56(2), providing that irrelevant evidence is inadmissible; and section 59(1), providing the hearsay evidence is inadmissible.

A less strict approach would preserve contrary common law on the basis that generally expressed rules of evidence do not exclude the common law either ‘expressly or by necessary intendment’ (for example, the hearsay exception for admissions by predecessors in title).57 This approach is arguably more faithful to the terms of sections 9 and 10, but is less faithful to the terms of the remainder of the uniform evidence law and the goal of providing a clear, accessible statute. A further alternative is the approach in New Zealand, where the common law’s survival is subject to its consistency with the purposes and principles of the modernised statute.58

55 56 57 58

McNeill v The Queen [2008] FCAFC 80; (2008) 168 FCR 198, [41]–[79]. Meteyard v Love [2005] NSWCA 444; (2005) 65 NSWLR 36, [118]. Butcher v Lachlan Elder Realty [2002] NSWCA 237; (2002) 55 NSWLR 558, [15]. Evidence Act 2006 (NZ), s 12.

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Sidestepping the above difficulties, some provisions of the uniform evidence law expressly preserve parts of the common law (or its statutory successors) on: • • • • • •

evidence of jury deliberations in appeal proceedings;59 legal or evidential presumptions that are not inconsistent with the uniform evidence law;60 powers to dispense with the rules of evidence in interlocutory proceedings;61 parliamentary privilege;62 court powers with respect to abuse of process;63 and judicial powers to warn or inform a jury.64

Other provisions expressly override the common law on, for example corroboration65 and warnings about forensic disadvantage due to delay.66 Regardless of whether or not it continues to apply of its own accord, the common law remains enormously significant in understanding and applying the uniform evidence law. Some parts of the new law are codifications of the old, so that earlier decisions remain highly persuasive. Other parts of the law are designed to reject the common law, so the earlier law remains important in understanding the rejected approach. So long as the courts have the wisdom to recognise the difference between these two scenarios, the common law is undoubtedly the most useful comparative jurisdiction for the uniform evidence law. On the other hand, unthinking or reflexive recourse to the common law is probably the easiest way to misunderstand the new law, a danger that is quite real given that most current lawyers and nearly all current judges were trained under the old law. A particular danger of relying on the common law to inform the meaning of the new statutes is that it is easy to disagree on what the common law is (or was), with unfortunate results. For example, when the NSW and Victorian courts considered the meaning of the crucial term ‘probative value’, they agreed (wrongly, in the authors’ view) that it bore the same meaning as the previous common law, but disagreed sharply on what the earlier law required.67 As well, the drafters of the uniform evidence law sometimes proceeded on an understanding of the common law that later judges disagreed with, confounding their apparent intentions.68 The High Court’s earliest decision on the new law recognised the significant changes occurring in Australia’s evidence law by firmly rejecting the use of the new law’s discretions to resurrect rejected common law approaches and even developing the common law so as to bring the two systems closer together.69 But later decisions have acted as a brake against change, interpreting provisions of the new statutes on the assumption that no major changes from previous approaches were intended.70 The long-term trend must surely be declining attention to the common law, as more jurisdictions abandon it and a new generation reaches the bench. 59 60 61 62 63 64 65 66 67 68 69

Section 9(2)(a). Section 9(2)(b). Section 9(2)(c). Section 10. Section 11(2). Section 165(5). Section 164. Section 165B(5). Dupas v The Queen [2012] VSCA 328; (2012) 218 A Crim R 507, [63]. Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588, [109]–[111]. Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297; R v Swaffield [1998] HCA 1; (1998) 192 CLR 159. 70 Cornwell v The Queen [2007] HCA 12; (2007) 231 CLR 260, [58]; (2007) 232 CLR 138, [38]; Lithgow City Council v Jackson [2011] HCA 36; (2011) 244 CLR 352, [44]–[46].

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1.3.3 Overseas law Replacing the common law of evidence with a fresher, simplified and unified law is not unique to Australia. To the contrary, something similar has occurred in almost all the major common law nations. This is no coincidence, as Australian developments have been influenced by overseas ones, and vice versa. Indeed, although little known in Australia, the very first uniform evidence law jurisdiction was Barbados, which enacted an earlier draft of Australia’s uniform law as its Evidence Act 1994, a year before the federal and NSW parliaments adopted the statute. The result is that some persuasive precedents exist for the Australian statutes not only in Barbados’s own courts, but also in two supranational appellate courts: the relatively new Caribbean Court of Justice and the more familiar body that court replaced, the Privy Council.71 So, the loss to Australia’s remaining common law jurisdictions as the common law is displaced is a corresponding gain to Australia’s uniform evidence law jurisdictions, which now have access to increasingly rich sources of relevant comparative law. The main overseas laws of relevance to the uniform evidence law are: •

•

•

•

The United States of America’s Federal Rules of Evidence: This set of rules, developed by academics and judges, promulgated in 1975, and since adopted in most US jurisdictions is the most obvious inspiration for the uniform evidence law, which directly copied many of its key reforms. The jurisprudence of the Canadian Supreme Court: Blessed with a different federal division of powers and an activist top court, Canada unified and modernised its common law without the aid of law reformers or parliaments. Many of the Supreme Court’s landmark exercises in simplification of evidence law are similar to reforms in the uniform evidence law, but with the added benefit of lengthy reasons for judgment setting out their rationale, scope, future development and application in particular appeals. Law reform in England and Wales: While England is yet to take the plunge into comprehensive evidence law reform, its parliament has enacted a number of ground-breaking piecemeal reforms. The 1984 Police and Criminal Evidence Act was the inspiration for the uniform evidence law’s provision on admissions, and its constantly updated codes of practice provide a very useful counterpoint to the Australian provisions on police procedures, including identification. Later statutory reforms to the rules on hearsay and character took their lead from the uniform evidence law, but go further than it in many respects.72 New Zealand’s Evidence Act 2006: New Zealand engaged in a parallel reform process to Australia’s, albeit about a decade later. Given that, it should be no surprise that the New Zealand Act is both similar to and an improvement on the uniform evidence law. Not only do the New Zealand provisions provide guidance on the interpretation of often vaguer Australian ones, but New Zealand case law will doubtless soon provide highly persuasive guidance on some of the common aspects of the two schemes. In a sense, there is now more uniformity in evidence law among jurisdictions bordering the Tasman Sea than among those sharing the Australian continent.

As with all comparative law, overseas statutes and judgments cannot simply be applied directly in the courts of Australia’s uniform evidence law jurisdictions. Rather, caution is always needed due to differences, not only in the laws themselves, but in the systems in which they operate. 71 E.g. Ward v The Queen (Barbados Court of Appeal, 13 July 2006); Francis v The Queen [2009] CCJ 9; Huggins v The Queen [2004] UKPC 7, [26], respectively discussing Barbados equivalents to s 114; ss 32–33, 86, 90 and 142; and s 89. 72 Criminal Justice Act 2003 (UK).

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Nevertheless, it would be equally wrong to apply Australia’s reform statutes in a vacuum or only by reference to the common law they replaced. For this reason, this textbook addresses overseas comparisons alongside more traditional reference points.

1.3.4 Human rights law A further body of law with a potentially significant influence on evidence law is human rights law. Human rights law is not a law of evidence, but rather a broad set of abstract principles for assessing laws and behaviour. Nevertheless, particular human rights—notably the rights to confrontation and against self-incrimination—are closely tied to parts of evidence law. Also, aspects of evidence law have a capacity to limit or promote a number of general rights including rights to privacy and a fair hearing. Reflecting this, modern Australian evidence law judgments occasionally refer to overseas documents and decisions on human rights, although such references are controversial in some quarters. Two uniform evidence jurisdictions have enacted statutes that set out lists of human rights and require that all statutory provisions be interpreted in a way that is compatible with those rights,73 raising the possibility that those jurisdictions’ statutes may need to be read differently from the other five. The extent of the difference depends on complex questions, including whether provisions of the uniform evidence law are incompatible with human rights and whether it is possible to read their terms differently. The ACT’s Human Rights Act 2004 and Victoria’s Charter of Human Rights and Responsibilities 2006 have the potential to diminish the uniformity of the Australian statutes, but may heighten the uniformity of the ACT, Victorian, Barbados and New Zealand statutes (due to the latters’ own bills of rights).74 Conversely, the impact of these rights statutes, especially Victoria’s Charter, may prove to be minimal due to numerous caveats on the rights they promote and their operative provisions.75 Domestic human rights statutes may nevertheless be relevant to the operation of the uniform evidence law in another way. Both the ACT and Victorian laws provide that it is unlawful for public authorities to act in a way that is incompatible with human rights.76 These rules most likely do not apply to courts’ powers and discretions under the uniform evidence law, but they may affect determinations of whether evidence gathered by police or other state bodies was gathered illegally or was otherwise tainted by impropriety (including determinations made in other jurisdictions). A precedent is the ruling of the Norfolk Island Supreme Court that breaches of New Zealand’s human rights law by Australian and New Zealand police interviewing the defendant in Nelson would, if established, have significance for the application of the rules on the admissibility of admissions in Part 3.4 and the exclusionary discretions in Part 3.11 of Norfolk Island’s uniform evidence law.77 However, as was the case with interpretation, the true effect of the rules about public authorities is uncertain and may well be blunted by caveats built into them to minimise their effect.78 The uniform evidence law itself requires reference to international human rights law in one provision. If evidence has been obtained illegally or improperly, then section 138(3)(f) states that 73 74 75 76 77 78

Human Rights Act 2004 (ACT), s 30; Charter of Human Rights and Responsibilities Act 2006 (Vic), s 32(1). Barbados Constitution, Chapter III; New Zealand Bill of Rights Act 1990 (NZ). See J Gans, ‘Evidence Law under Victoria’s Charter: Rights and Goals—Part I’ (2008) 19 Public Law Review 197. Human Rights Act 2004 (ACT), s 40B(1); Charter of Human Rights and Responsibilities Act 2006 (Vic), s 38(1). R v McNeill (Ruling No 1) [2007] NFSC 2; (2007) 209 FLR 124, [189]–[198]. See J Gans, ‘Evidence Law under Victoria’s Charter: Remedies and Responsibilities—Part 2’ (2008) 19 Public Law Review 285.

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courts determining whether the evidence should nevertheless be admitted must ‘take into account’ whether the evidence was obtained in a way that was ‘contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights’.

SUMMARY •

•

•

The uniform evidence law follows the common law tradition in terms of its basic goals. The primary purpose of the law of evidence is promoting accurate fact-finding, through rules informed by a set of principles: – Fact-finding should be rational. – Relevant information should be available to the court. – Irrational fact-finding should be discouraged. – Unreliable information should be treated with caution. This primary purpose is subject to competing goals, including ensuring the proper functioning of the courts and a variety of other public interests. The scheme aims to reform Australian evidence law to fit a single, simple and contemporary model. However, – each statute only applies in a defined set of courts in each enacting jurisdiction and is not applicable in some proceedings and matters within those courts; – the statutes’ accessibility is hampered by the complexities of evidence law and the minimalist nature of coordinated law reform; and – there are differences in the statutes, including recent piecemeal reforms made or proposed in NSW and Victoria. The uniform evidence law is not comprehensive, but instead may be: – supplanted by local statutes; – supplemented by the remaining common law; – influenced by similar overseas laws; and – modified by human rights law.

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INTRODUCTION Fact-finding in a common law trial is overwhelmingly based on the oral testimony of witnesses in court. This preference for oral testimony—which is not shared by civil law jurisdictions—is probably based upon some or all of the following (questionable) beliefs: • • •

A person is more likely to tell the truth if he or she testifies on oath, and is subject to the threat of prosecution for perjury proceedings. Any falsehoods or inaccuracies in a person’s account are most likely to be exposed if the person is subjected to cross-examination. The tribunal of fact will be better placed to decide whether or not the person is telling the truth, if the person is in court where his or her demeanour can be assessed.

In Butera v DPP [1987] HCA 58; (1987) 164 CLR 180, for example, the common law’s preference for oral as opposed to documentary evidence was justified in the following way: A witness who gives evidence orally demonstrates, for good or ill, more about his or her credibility than a witness whose evidence is given in documentary form. Oral evidence is public; written evidence may not be. Oral evidence gives to the trial the atmosphere that, though intangible, is often critical to the jury’s estimate of the witness. By generally restricting the jury to consideration of testimonial evidence in its oral form, it is thought that the jury’s discussion of the case in the jury room will be more open, the exchange of views among jurors will be easier, and the legitimate merging of opinions will more easily occur than if the evidence were given in writing or the jurors were each armed with a written transcript of the evidence.1 This chapter discusses the means by which evidence is adduced from witnesses. This is the subject matter of Part 2.1 of the legislation. The chapter begins by discussing the preference of the common law system of trial for oral testimony, before turning to the twin questions of competence and compellability, which between them determine whether or not a particular person will be available to testify as a witness. It also considers the evidential significance of a failure to call a person as a witness. The chapter then discusses several different classes of witness, each of which is special in the sense that special rules apply to the class that do not apply to witnesses in general. Finally, the chapter discusses the means by which witnesses are examined, setting out the rules that apply to examination-in-chief, cross-examination and re-examination.

1 Butera v DPP [1987] HCA 58, [15]; (1987) 164 CLR 180, 189; (Mason CJ, Brennan and Deane JJ).

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2.1 COMPETENCE AND COMPELLABILITY OF WITNESSES The availability of a person as a witness depends on the twin questions of competence and compellability. These questions are dealt with in Division 1 of Part 2.1 of the legislation. A person is ‘competent’ as a witness if he or she will be allowed to testify; that is, to give sworn or unsworn evidence. The distinction between these two types of evidence is discussed below. A competent witness is ‘compellable’ if he or she can be placed under threat of punishment for failure to testify. It is important to note that competence and compellability are questions relating to the capacities of a witness, rather than to the content of any evidence they might give. A competent and compellable witness might thus be exempted from answering particular questions on grounds of privilege.2 The starting point for questions of competence and compellability under the legislation is that every person is presumed to be both competent and compellable, unless and until the court finds otherwise. Thus section 12 provides that: Except as otherwise provided by this Act – (a) every person is competent to give evidence; and (b) a person who is competent to give evidence about a fact is compellable to give evidence.

The remaining sections of Part 2.1, Division 1 set out a series of exceptions to these statutory presumptions. These rules are also used to determine whether evidence of a previous representation can be admitted under one of the exceptions to the hearsay rule, with section 61 providing that the exceptions are not available ‘if, when the representation was made, the person who made it was not competent to give evidence about the fact’.

2.1.1 Sworn and unsworn evidence The general rule is that: ‘A witness in a proceeding must either take an oath, or make an affirmation, before giving evidence’.3 An oath is a solemn undertaking to tell the truth and makes reference to a witness’s religious beliefs; an affirmation is an equally solemn undertaking couched in secular terms. The witness has a right to decide whether to take an oath or to make an affirmation.4 Evidence given on oath or affirmation is called ‘sworn’ evidence. There are two exceptions to the requirement that a person can only give evidence on oath or affirmation. The first is for a person ‘who is called merely to produce a document or thing’.5 The second is for a person who gives ‘unsworn’ evidence under section 13, as discussed below. ‘Unsworn’ evidence is evidence given by a witness who has neither taken an oath nor made an affirmation to tell the truth. In procedural terms, a witness giving unsworn evidence is treated in the same way as a witness giving sworn evidence; for example, he or she may be cross-examined, and the legislation does not make any provision for unsworn evidence to be given less weight than sworn evidence, though neither does it forbid this.

2 See Chapter 14: Privileges. 3 Section 21(1). The NT provision only refers to oaths, because of certain provisions in the Oaths, Affidavits and Declarations Act 2010. 4 Section 23. In Victoria, a witness may take an oath ‘even if the person’s religious or spiritual beliefs do not include a belief in the existence of a god’: see Evidence Act 2008 (Vic), s 24A. 5 Section 21(3).

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2.1.2 Tests for competence Adult witnesses suffering from no obvious intellectual or psychiatric disability will generally be assumed by the court to be competent to give sworn evidence, and the statutory presumption of competence referred to above is therefore unlikely to be displaced.6 For this reason, competence issues usually only arise in relation to the testimony of children, and in relation to adults with some form of intellectual or psychiatric disability. In determining questions of competence, the court is entitled to inform itself as it thinks fit, ‘including by obtaining information from a person who has relevant specialised knowledge based on the person’s training, study or experience’.7 The wording of this provision corresponds with the wording of section 79, which deals with expert opinion evidence, with one exception: the court may rely on mere ‘information’ provided by an expert, which suggests that the ‘information’ might be more general in nature than would be admissible under section 79. Under the uniform evidence legislation, the competence of a witness is assessed in relation to the specific facts about which he or she is to give evidence. Since the 2008 amendments to the legislation, the basal test of competence requires that the witness has—at the time they are to given evidence8—the capacity both to understand a question about a particular fact, and to give an answer that can be understood to a question about that fact.9 If a person does not have both of these capacities, and his or her incapacity cannot be overcome,10 then the person is not competent to give any form of evidence about that fact. The second of the tests is one of intelligibility—can the person’s answer be understood?—and it represents a lowering of the standard that previously applied, which required that a person be able to give a ‘rational reply’ to a question about a fact. The Explanatory Memoranda of both the Commonwealth amending Act and the Victorian Act stated that ‘the purpose of the revised test of general competence is to enhance participation of witnesses and to ensure that relevant information is before the court’. It is clear that an answer can be understood, even if it is not a ‘rational reply’ to the question; indeed, even if it is not in truth a reply to the question at all. However, a person who is not competent to give evidence about one fact will not necessarily be incompetent to give evidence about other facts;11 competence is determined on a fact-by-fact basis. This allows a court to recognise a witness as competent to give evidence about some facts, but not about others; the Australian Law Reform Commission gave as an example of this the possibility that ‘a young child could be permitted to answer simple factual questions but be ruled to be not competent to answer abstract or inferential questions’.12 If the court finds that a person is able to give comprehensible answers to questions they can understand, then a further test is applied. This test—which is used to determine whether the witness will give sworn evidence or unsworn evidence—relates to the witness’ understanding of their obligation to tell the truth when giving evidence. Section 13(3) thus provides that: A person who is competent to give evidence about a fact is not competent to give sworn evidence about the fact if the person does not have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence 6 7 8 9 10

See ss 12(a) and 13(6). Section 13(8). See Hawker v The Queen [2012] VSCA 219, [26]. Section 13(1). Section 30 permits a witness to give evidence through an interpreter; and s 31 contains provisions dealing with deaf and mute witnesses. 11 Section 13(2). 12 Australian Law Reform Commission, Evidence (Interim), Report No 26 (1985) Volume 1, [522].

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A witness who is not competent to give sworn evidence may be competent to give unsworn evidence—section 13(4)—but only if the court has first ruled the witness to be incompetent to give sworn evidence, and has complied with the requirements of section 13(5).13 Section 13(5) provides that a person who does not have the capacity to understand this obligation will nevertheless be competent to give unsworn evidence provided that the court has told them: (a) that it is important to tell the truth; and (b) that he or she may be asked questions that he or she does not know, or cannot remember, the answer to, and that he or she should tell the court if this occurs; and (c) that he or she may be asked questions that suggest certain statements are true or untrue and that he or she should agree with the statements that he or she believes are true and should feel no pressure to agree with statements that he or she believes are untrue.

The Australian Law Reform Commission suggested that the following simple form of words would be sufficient to satisfy the requirements of section 13(5): ‘Tell us all you can remember of what happened. Do not make anything up or leave anything out. This is very important’.14 Importantly, there is no requirement that the court be satisfied that the person has understood and accepted what the court has told them pursuant to section 13(5). As the ACT Court of Appeal observed in R v Muller: Although it may be appropriate to ask questions in order to determine whether any further explanation is necessary, testing of the potential witness’s understanding of the judge’s directions is not part of the process prescribed by s 13(5). No particular level of understanding is required as a condition of admissibility …15

If the witness dies or becomes incompetent before completing his or her evidence, this does not, by itself, mean that the evidence he or she has already been given becomes inadmissible.16

2.1.3 Compellability As a general rule, competent witnesses are also compellable. Section 12(b) thus provides that ‘Except as otherwise provided by this Act’, ‘a person who is competent to give evidence about a fact is compellable to give that evidence’. Section 14 creates an exception to this general rule for people of ‘reduced capacity’, where the court is satisfied that: (a) substantial cost or delay would be incurred in ensuring that the person would have the capacity to understand a question about the matter or to give an answer that can be understood to a question about the matter; and (b) adequate evidence on that matter has been given, or will be able to be given, from one or more other persons or sources.

There are a number of other exceptions to the general rule that a competent witness is also compellable, including for certain heads of state and members of parliament,17 the judges and jurors in a proceeding,18 and, most importantly, the defendant in criminal proceedings, whose position is discussed in more detail below. 13 See RJ v The Queen [2010] NSWCCA 263, [40]; (2010) 208 A Crim R 174, [40]; and SH v The Queen [2012] NSWCCA 79, [35]; (2012) 83 NSWLR 258, [35]. 14 Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005) [4.45]. 15 R v Muller [2013] ACTCA 15, [44]; (2013) 273 FLR 215 [44]. 16 Section 13(7). 17 Section 15. 18 Section 16.

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2.1.4 The defendant in criminal proceedings The most important exception to the general presumption of competence and compellability is for the defendant in criminal proceedings. The defendant is a competent (but obviously not compellable) witness in his or her own defence, but is not a competent witness for the prosecution,19 and cannot be compelled to give evidence by an ‘associated defendant’ with whom he or she is being jointly tried.20 Neither the prosecution, nor a co-accused can, therefore, compel the defendant to testify at his or her trial. Indeed, as the High Court confirmed in Kirk, section 17(2) bars the prosecution from calling the accused as a witness even if the accused consents;21 one of the justifications for this prohibition, according to Heydon J, is that it avoids the farce of allowing an advocate to cross-examine their own client, the accused.22 Section 17(2) almost certainly also prevents the prosecution from calling an accused to testify against a co-accused, although the facts in Kirk only required the High Court to decide that section 17(2) prevented the prosecution from calling an accused to testify against a corporate co-accused of which he was the director. All of this can be contrasted with the situation in civil proceedings, where the parties can call their opponents as witnesses. The decision as to whether or not to testify is one of the most important tactical decisions the defendant and his or her counsel must make. The decision has been made more difficult by the abolition in all Australian jurisdictions of the defendant’s former right to give unsworn evidence. This right allowed the defendant to make a statement or be examined by his or her counsel, without being exposed to cross-examination by the prosecution. The choice is now more stark: testify and be cross-examined, or do not testify at all. Of course, if the defendant has made an exculpatory statement to the police, then it may be possible to have this admitted into evidence, thus avoiding the perils of cross-examination while still getting the defendant’s version of events before the court, but this is not always possible.23 Moreover, if the defendant fails to testify, then in certain very limited circumstances an adverse inference may be drawn; the evidential significance of the defendant’s failure to testify is discussed later in this chapter.

2.1.5 The defendant’s family In a criminal proceeding, the defendant’s family members are both competent and compellable to give evidence for the defence. However, the spouse, de facto partner, parent and child of the defendant, while competent witnesses for the prosecution, can all object to giving evidence, or to giving evidence of a specific communication between them and the defendant.24 Under the Commonwealth, New South Wales, Tasmanian and Northern Territory Acts, however, this right to  object is not available in certain criminal proceedings, typically those involving sexual or violent offences against family members.25 Where the right to object is available, objection must

19 Section 17(2). 20 Section 17(3). The phrase ‘associated defendant’ is defined in the Dictionary, and essentially means someone who has been charged for a related offence. 21 Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531, [51]–[52]. 22 Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531, [117]. 23 See Chapter 8: Admissions. 24 Section 18(2). The phrase ‘de facto partner’ is defined in Clause 11 of Part 2 of the Dictionary. 25 See s 19 of each of the Acts.

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be taken before the person gives evidence, or as soon as practicable after they become aware of the right.26 Once objection is made, the court must determine whether ‘there is a likelihood that harm would or might be caused (whether directly or indirectly) to the person, or to the relationship between the person and the defendant, if the person gives the evidence’.27 If the court finds that there is a likelihood of such harm (a test that is likely to be easily satisfied), then it must go on to determine whether ‘the nature and extent of that harm outweighs the desirability of having the evidence given’.28 In determining these questions, the court must take into account the following factors: (a) the nature and gravity of the offence for which the defendant is being prosecuted; (b) the substance and importance of any evidence that the person might give and the weight that is likely to be attached to it; (c) whether any other evidence concerning the matters to which the evidence of the person would relate is reasonably available to the prosecutor; (d) the nature of the relationship between the defendant and the person; (e) whether, in giving the evidence, the person would have to disclose matter that was received by the person in confidence from the defendant.29

If, in light of these factors, the court forms the view that the harm to the relationship would outweigh the desirability of having the evidence given, then the person will not be required to give evidence.30 No comment may be made by the prosecutor on the making or determination of an objection under section 18.31

2.2 FAILURE TO CALL WITNESSES 2.2.1 Civil proceedings If a party fails to call a particular person as a witness this may, in certain circumstances, lead to an inference that the reason why the person was not called to testify is that his or her testimony would not have assisted the party’s case. This is sometimes known as the rule in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. The legislation is silent on the topic; a silence that has been taken to preserve the common law rules.32 Section 55(2)(c) of the legislation does, however, provide that ‘evidence is not to be taken to be irrelevant only because it relates only to … a failure to adduce evidence’. Evidence adduced to explain why such an inference should or should not be drawn may, thus, be relevant. Such an inference can only be drawn if the witness was one who would ordinarily have been expected to be called, and to have been called by one party rather than the other. In recent times, the rule has been extended from instances where a witness has not been called at all, to instances where a witness has been called to give evidence but has not been questioned on a particular topic

26 Section 18(3). If it appears that a person may have a right of objection, then the court is required to satisfy itself that the person is aware of that right. 27 Section 18(6)(a). 28 Section 18(6)(b). 29 Section 18(7). 30 Section 18(6). 31 Section 18(8). 32 See Australian Securities Commission v AS Nominees Ltd [1995] FCA 1460; (1995) 62 FCR 504.

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or in relation to a particular issue.33 In both situations, the inference can only be drawn if it seems likely that the witness ‘would have had a close knowledge of the facts’ so as to be able to ‘elucidate’ the matter.34 It can also only be drawn if the witness: might be regarded as in the camp of one party, so as to make it unrealistic for the other party to call him, or where the witness’s knowledge may be regarded as the knowledge of one party rather than the other, or where his absence should be regarded as adverse to the case of one party rather than the other. It has been observed that the higher the missing witness stands in the confidence of one party, the more reason there will be for thinking that his knowledge is available to that party rather than to his adversary. If the witness is equally available to both parties, for example, a police officer, the condition, generally speaking, stands unsatisfied.35

The rule in Jones v Dunkel only applies when the witness would have been available to testify; when the party would have known how the witness would be likely to testify; and when there is no other reasonable explanation for the failure to call the witness. These conditions are simply designed to ensure that the inference is only drawn when the correct explanation for the failure to call the witness is, indeed, the fact that the witness’s evidence would not have been helpful to the party’s case. Other possible explanations for the failure to call a witness include the possibility that the witness was uncooperative, or biased against the party; that the party had no idea how the witness would testify; that the effect of the witness’s evidence would merely have been cumulative; or, the most that the witness could have been expected to say was that he or she did not recall.36 For these reasons, the most obvious category of witness that will satisfy all these conditions is the parties themselves, or such of their senior employees as were closely involved in the events in question.37 But this is not the only category of witness. Clark v Stingel, for example, was a civil action based on allegations of rape. Counsel for the defendant criticised the plaintiff for failing to call as witnesses people who were said to have been present at the alleged rapes as witnesses, and who could therefore have corroborated the plaintiff ’s allegations if they were true, as well as a boyfriend of the plaintiff who was said to have been physically assaulted by the defendant when he confronted him over the rape allegations. Counsel for the plaintiff, on the other hand, criticised the defendant for failing to call his wife and a friend of his who had, according to the plaintiff, been present at, and involved in, each of the rapes. The trial judge directed the jury that they: [had to] decide whether or not the person was one which you would expect a particular party to call and, secondly, there is no reasonable, and I stress reasonable, explanation that has been given to you as to why that witness has not been called. You must appreciate that any inferences drawn from these facts cannot include any guesses on your part as to what the evidence of the particular missing witness might have been. You cannot speculate on what the witness would have said had they in fact made it here into the witness box. If the missing witness had been in the position of contradicting evidence of a particular witness from the other side and that particular party failed to call this person, then it puts you in the position of more readily accepting on any particular topic the evidence of a witness who has been called by the other party.38

33 See Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11, [63]; (2011) 276 ALR 375, [63] (Heydon, Crennan and Bell JJ). 34 Payne v Parker [1976] 1 NSWLR 191, 202 (Glass JA). 35 Ibid., 201–02 (Glass JA). 36 As in Australian Securities and Investments Commission v Hellicar [2012] HCA 17, [164]–[172]; (2012) 286 ALR 501, [164]–[172]. 37 See Dilosa v Latec Finance Pty Ltd [1966] 1 NSWR 259; (1966) 84 WN (Pt 1) (NSW) 557. 38 Clark v Stingel [2007] VSCA 292, [59]; the direction was upheld on appeal.

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As this direction demonstrates, the inference that can be drawn is a fairly limited one; it may not be inferred that the witness’s evidence would actually have damaged the party’s case, but only that it would not have assisted it. For this reason, the primary use of the inference is in the evaluation of the testimony of other witnesses about the matters of which the witness who was not called could have testified. In short, it makes it easier to accept the version of events put forward by the witnesses called by the party’s opponent, or to more readily draw an inference already open on the evidence.

2.2.2 Criminal proceedings The rule in Jones v Dunkel mainly applies in civil proceedings. Because criminal proceedings are accusatorial in nature, with the onus of proof resting on the prosecution, the defendant is generally under no obligation to call evidence or to testify himself or herself. This means that one of the preconditions to the operation of Jones v Dunkel—that a party has failed to call a witness whom it would ordinarily have been expected to call—will seldom if ever be satisfied with respect to the defendant.39 This means that if, instead of being a civil action for assault, Clark v Stingel, had been a criminal prosecution for rape, the trial judge could not have directed the jury that inferences could be drawn from the defendant’s failure to call witnesses. Where the potential witness was the spouse, de facto partner, parent or child of the defendant, the legislation imposes more specific rules: • •

• •

the prosecutor may not make any comment about the failure of the spouse, de facto partner, parent or child to give evidence;40 the judge may comment on such failure, but must not suggest that the spouse, de facto partner, parent or child failed to give evidence because: – the defendant was guilty of the offence concerned; or – the spouse, de facto partner, parent or child believed that the defendant was guilty of the offence concerned;41 whereas a co-defendant may make such a comment;42 and if such a comment is made, the judge may comment on that comment.43

Gaudron and Hayne JJ also argued in Dyers that a Jones v Dunkel direction should only exceptionally be given with respect to the prosecution’s failure to call witnesses. According to their Honours, two conditions would have to be satisfied before any such direction could be given. First, the trial judge would have to have questioned the prosecution in order to discover their reasons for declining to call a particular witness or witnesses; and second, the trial judge would have to consider, in light of the prosecution’s duty to fairly present the evidence, that those answers were unsatisfactory. In short, a direction could only be given ‘where it is shown that the prosecution’s failure to call the person in question was in breach of the prosecution’s duty to call all material witnesses’.44 So if Clark v Stingel had been a criminal prosecution for rape, and the prosecution had failed to call the witnesses that the plaintiff in the civil action failed to call, a Jones v Dunkel

39 40 41 42 43 44

See Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285. Section 20(3). Section 20(3) and (4). Section 20(3) and (4). Section 20(5). Dyers v The Queen [2002] HCA 45, [6]; (2002) 210 CLR 285, 291 (Gaudron and Hayne JJ).

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direction could only be given if the judge was satisfied that the prosecution’s failure to call the witnesses was a breach of prosecutorial duty. In Victoria, the Jury Directions (Amendment) Bill 2013 proposes the insertion of a new section 54 in the Jury Directions Act 2013, which would allow defence counsel to ask the trial judge to give a direction in cases where the prosecution does not call or question a particular witness. Such a direction could only be given, however, if the trial judge was satisfied both that the prosecution was reasonably expected to call or question the witness, and that the prosecution has not satisfactorily explained why it did not call or question the witness. In giving the direction, the judge ‘may inform the jury that it may conclude that the witness would not have assisted the prosecution’s case’.

2.2.3 The evidential significance of the defendant’s failure to testify The ruling in Dyers was actually the culmination of a series of cases dealing with the evidential significance of a failure to call the accused to give evidence, and the comments that could permissibly be made about such failure. The current law in this area began with the High Court’s decision in Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217. In that case, the defendant was charged with the murder of two people with whom he had gone sailing in the South Pacific. The bodies of the two were never found. The inference that the defendant had murdered them largely rested on the following circumstances: • • • •

the fact that there had been no trace of the two since shortly after they and the defendant had set sail together; the fact that the defendant was in possession of the boat, which belonged to the two and on which they had spent all their savings; the fact that the boat still contained numerous personal possessions belonging to the two, including possessions that they always took with them; and the fact that the defendant had told numerous inconsistent stories about where the two had gone, none of which could be substantiated.

The question for the High Court was the evidentiary significance of a further fact: the fact that the defendant had never provided any satisfactory explanation of any of these four circumstances. By never taking the opportunity to say anything by way of explanation to the police or at the trial, the defendant was, of course, simply exercising his right to silence to the fullest extent possible. For that reason, the High Court ruled that his conduct in failing to explain could not be used as the foundation for an inference of guilt: The failure of the accused to give evidence is not of itself evidence. It is not an admission of guilt by conduct. It cannot be, because it is the exercise of a right which the accused has to put the prosecution to its proof … The accused is entitled to take that course and it is not evidence of either guilt or innocence.45

By this the High Court meant that the jury was not permitted to regard the defendant’s failure to explain the prosecution evidence as an acknowledgment that he was guilty, or even as a hint that the defendant had something suspicious to hide. However, the High Court held that there was another use that could be made of the defendant’s failure to explain the circumstances that

45 Weissensteiner v The Queen [1993] HCA 65, [33]; (1993) 178 CLR 217, 229 (Mason CJ Deane and Dawson JJ).

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comprised the prosecution case.46 The inference permitted by the High Court in Weissensteiner was described by Mason, Deane and Dawson JJ as follows: It is only when the failure of the accused to give evidence is a circumstance which may bear upon the probative value of the evidence which has been given and which the jury is required to consider, that they may take it into account, and they may take it into account only for the purpose of evaluating that evidence.47

The High Court’s approach rested on two steps of reasoning. First, the probative value of circumstantial evidence that the defendant is guilty depends in part on whether there are innocent explanations for those circumstances. For instance, the main strength of the prosecution case in Weissensteiner comes from the improbability of there being an innocent explanation for the four circumstances relied upon by the prosecution. One such innocent explanation, that the alleged victims had left the boat to live on an isolated island, is rendered improbable by both the unlikelihood that they would do such a thing and, more compellingly, the extreme unlikelihood that they would nonetheless leave their personal belongings behind. This first step of reasoning has nothing to say about a defendant’s conduct in failing to explain prosecution evidence. Rather, that requires a second step of reasoning. In Weissensteiner, a further problem with the innocent explanation that the victims left the boat to live on an isolated island is that, if that is what happened, the defendant would know something about it (for example, the approximate place where the two people left the boat). It stands to reason that, if this explanation were true, then the defendant would reveal this knowledge at some point when facing a charge of double murder. So the defendant’s failure to give this explanation is a further reason to doubt the probability that the explanation is true. Similar reasoning would apply to any explanation that the defendant would know about. This means that the defendant’s failure to provide any explanation may be a reason to regard the prosecution’s circumstantial case as providing especially strong support for an inference that the defendant is guilty. In short, while a defendant’s failure to explain cannot be used as evidence that the defendant has something suspicious to hide, it can be used as evidence that the defendant has nothing exculpatory to reveal. In Weissensteiner itself, all members of the High Court agreed that the prosecution’s case merited an explanation by the defendant. However, subsequent decisions of the High Court have greatly limited the operation of this principle by reference to two further rights of the defendant. These will be discussed in turn.

2.2.3.1 The defendant’s right to put the prosecution to proof The majority in Weissensteiner noted that every defendant has ‘a right … to put the prosecution to its proof ’. This means that defendants are not legally required to say anything in their defence, including providing explanations for incriminatory evidence produced by the prosecution. Instead, they have a right to invite the fact-finder to examine the prosecution case and determine whether or not it is sufficient to establish the defendant’s guilt beyond reasonable doubt. The exercise of such a right carries an obvious risk: that the fact-finder will conclude that the prosecution case does establish the defendant’s guilt to the criminal standard of proof. There is obviously no way to protect the defendant from that risk. However, the consequence of Weissensteiner is that defendants who fail to explain prosecution evidence take a further risk: that their failure will be taken to strengthen the prosecution’s case.

46 For a detailed discussion of the court’s reasoning, see Palmer, A, ‘Silence in Court: The Evidential Significance of an Accused Person’s Failure to Testify’ (1995) University of New South Wales Law Journal 130. 47 Weissensteiner v The Queen [1993] HCA 65, [33]; (1993) 173 CLR 217, 229 (Mason CJ Deane and Dawson JJ).

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Recognising this problem, the majority in Weissensteiner held that the prosecution case has to merit the imposition of an additional burden on defendants: Not every case calls for explanation or contradiction in the form of evidence from the accused. There may be no facts peculiarly within the accused’s knowledge. Even if there are facts peculiarly within the accused’s knowledge the deficiencies in the prosecution case may be sufficient to account for the accused remaining silent and relying upon the burden of proof cast upon the prosecution. Much depends upon the circumstances of the particular case and a jury should not be invited to take into account the failure of the accused to give evidence unless that failure is clearly capable of assisting them in the evaluation of the evidence before them.48

In Weissensteiner, members of the court disagreed on what it was that the defendant could properly be regarded as failing to explain. The majority upheld the trial judge’s direction that the jury could consider the prosecution’s case in light of the defendant’s failure to explain what happened to the alleged victims. However, Gaudron and McHugh JJ dissented, pointing out that the prosecution had not provided any evidence of what actually happened to the victims, so it would be wrong to penalise the defendant for not providing that information. Instead, the jury was only entitled to consider the defendant’s failure to explain how he came to be alone on the boat and why he gave inconsistent stories about the victims’ whereabouts. The division between the majority and minority represents a disagreement about whether the defendant has to respond to prosecution evidence or to the implications of that evidence. Subsequent decisions of the High Court have held that defendants cannot be disadvantaged for failing to: •

•

•

•

contradict a witness’s testimony: for example, a prosecution witness’s claim that the defendant solicited that witness to murder the victim and other witnesses’ testimony supporting that account;49 reveal facts that a prosecution witness would also know about: for example, the reason a nineyear-old child in the defendant’s care would walk seven kilometres to her own home late at night and show medical symptoms of sexual abuse, at least where the child was able to testify that these matters were indeed the result of abuse by the defendant;50 respond to prosecution evidence that only implicates the defendant with respect to some counts in a multiple-charge trial: for example, evidence that a defendant accused of digital and penile rape of his daughter responded to the allegation by saying, ‘I never had intercourse with her but everything else she said is true’, and that it had been going on ‘since she was about ten’;51 and call a witness whose testimony could confirm a defence put forward by the defendant.52

The effect of these holdings is that ‘cases in which a judge may comment on the failure of an accused to offer an explanation will be both rare and exceptional’.53 In particular, the Weissensteiner principle is inapplicable in all prosecutions for offences committed against or in the presence of a surviving and capable person.54 48 49 50 51 52 53 54

Weissensteiner v The Queen [1993] HCA 65, [30]; (1993) 178 CLR 217, 228 (Mason CJ, Deane and Dawson JJ). See Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50. See Davis v The Queen [2001] HCA 25; (2001) 205 CLR 50. See RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620. See Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285. Azzopardi v The Queen; Davis v The Queen [2001] HCA 25, [68]; (2001) 205 CLR 50, 75 (Gleeson CJ). For a detailed critique of all these developments, see the judgments of McHugh J in RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620, Gleeson CJ and McHugh J in Azzopardi v The Queen; Davis v The Queen [2001] HCA 25; (2001) 205 CLR 50 and McHugh J in Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285.

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2.2.3.2 The defendant’s right not to testify As already noted, defendants cannot be compelled to testify in criminal proceedings. However, the early twentieth-century legislation that gave defendants the option of testifying exposed them to potential scrutiny if they chose not to testify. Like the right to silence with respect to police questioning (discussed in Chapter 8: Admissions), evidence law does not permit a defendant’s failure to testify to be used to support an inference of consciousness of guilt. However, in those rare cases where the Weissensteiner principle applies, this does not bar the fact-finder from assessing the prosecution evidence in light of the defendant’s failure to provide an explanation. In Weissensteiner, Mason CJ, Deane and Dawson JJ acknowledged that this places some pressure on defendants not to be silent in court: The fact that the accused’s failure to give evidence may have this consequence is something which, no doubt, an accused should consider in determining whether to exercise the right to silence … But it is not to deny the right; it is merely to recognize that the jury cannot, and cannot be required to, shut their eyes to the consequences of exercising the right.55

Obviously, the fact that the defendant did not testify cannot be hidden from the jury. However, it is possible to bar prosecutors and trial judges from commenting on the fact that the defendant did not testify. As it happens, the only jurisdiction in Australia that did not regulate such comments was the state where Weissensteiner’s trial was held: Queensland. Under section 20(2) of the legislation,56 by contrast: • •

•

the prosecutor is prohibited from making any ‘comment’ whatsoever on the defendant’s failure to testify; the judge is permitted to comment, 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’; and a co-defendant is permitted to make to such a comment.

The word ‘comment’ is not defined, but has been held to mean any statement that suggests, whether directly or indirectly, that the defendant could have given evidence, and did not do so.57 However, a statement to the effect that the prosecution evidence was uncontradicted would not constitute a comment on the defendant’s failure to testify, because it does not imply that the defendant could have given evidence but did not do so. After the decision in Weissensteiner, state and territory courts assumed that these and similar provisions did not bar trial judges from explaining the Weissensteiner principle to jurors (in cases where that principle was applicable). However, the High Court has since overturned convictions where the trial judge: • •

referred to the defendant’s failure to give evidence (as opposed to an explanation): Azzopardi v The Queen; Davis v The Queen, endorsing Gaudron and McHugh JJ’s dissent in Weissensteiner; directed jurors on how to conclude that the defendant is guilty (as opposed to commenting on a matter the jurors may consider, balanced by a direction that they do not have to reason in that way; a reference to other possible explanations for a defendant’s failure to explain; and a direction on the burden of proof and the defendant’s right not to testify): Azzopardi v The Queen; Davis v The Queen; and

55 Weissensteiner v The Queen [1993] HCA 65, [33]; (1993) 178 CLR 217, 229 (Mason CJ Deane and Dawson JJ). 56 Section 20 only applies in a criminal proceeding for an indictable offence: s 20(1). 57 See R v Villar; R v Zugecic [2004] NSWCCA 302, [119].

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told jurors that a lack of explanation by the defendant is evidence that the defendant has no innocent explanation for the prosecution evidence: RPS v The Queen.

Significantly, these decisions all involved section 20(2) of the uniform evidence legislation, where only comments by prosecutors are wholly barred. However, the majority in Azzopardi observed that: [I]t would indeed be surprising if s 20(2) were to be given a construction which would permit the judge to point out to the jury that the failure of the accused to give evidence is an argument in favour of the conclusion for which the prosecution contends. If the prosecution is denied the argument, why should the judge be permitted to make it?58

So, the majority of the High Court appears to read the permissive aspect of section 20(2) as limited to comments favourable to the defence rather than the prosecution. According to a majority of the High Court: if an accused does not give evidence at trial it will almost always be desirable for the judge to warn the jury that the accused’s silence in court is not evidence against the accused, does not constitute an admission by the accused, may not be used to fill the gaps in the evidence tendered by the prosecution, and may not be used as a make weight in assessing whether the prosecution has proved its case beyond reasonable doubt.59

According to the Victorian Court of Appeal, ‘such a direction is desirable unless there is some feature of the case that renders it unnecessary or inappropriate’.60 These developments appear to leave little room for a Weissensteiner direction in future Australian trials. Indeed, Callinan J has gone so far as to say that Weissensteiner is inapplicable in uniform evidence legislation jurisdictions (because of the terms of section 20(2)).61 However, a majority of the High Court is content to observe that: there may be cases where the failure of an accused to offer an explanation by reference to some matter peculiarly within his or her knowledge will permit comment to be made as to that failure. However, as with all judicial comments on the facts in a jury trial, it will often be better (and safer) for the judge to leave the assessment of the facts to the determination of the jury in the light of the submissions of the parties. Unnecessary or extensive comments on the facts carry well-recognised risks of misstatements or other errors and of blurring the respective functions of the judge and the jury.62

In light of this passage, it is extremely doubtful that a future judge would risk making a comment except in a trial that was virtually identical to that considered in Weissensteiner itself. However, it should be noted that statutory bars (and High Court discouragements) on comments regarding the defendant’s failure to testify do not render the reasoning endorsed in Weissensteiner illegitimate. Rather, they simply prevent prosecutors and trial judges from telling jurors about the inferences that are lawfully available to them.63 In Victoria, the position will become much clearer if the Jury Directions (Amendment) Bill 2013 becomes law, inserting a new Part 12—‘failure to give evidence or call witness’ into the Jury

58 59 60 61 62 63

Azzopardi v The Queen; Davis v The Queen [2001] HCA 25, [53]; (2001) 205 CLR 50, 70. Azzopardi v The Queen; Davis v The Queen [2001] HCA 25, [51]; (2001) 205 CLR 50, 70. Burke v The Queen [2013] VSCA 351, [69]. Azzopardi v The Queen; Davis v The Queen [2001] HCA 25, [189]; (2001) 205 CLR 50, 116. Azzopardi v The Queen; Davis v The Queen [2001] HCA 25, [52]; (2001) 205 CLR 50, 70. Again, these developments were sharply criticised by McHugh J in RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 and Azzopardi v The Queen; Davis v The Queen [2001] HCA 25; (2001) 205 CLR 50.

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Directions Act 2013. Section 55 abolishes any common law rules about directions, providing that except as provided by Part 12, a trial judge is not required to direct the jury when either the accused does not give evidence or call witnesses, or the prosecution does not call or question a witness. Section 52 would allow defence counsel to ask the judge to give a favourable direction of the kind suggested by the High Court in Azzopardi, above; and section 53 would prohibit the judge and all parties (including a co-accused) from making any unfavourable comments. Section 54, as already discussed above, regulates directions about the prosecution’s failure to call or question a witness.

2.3 THE EXAMINATION OF WITNESSES The examination of a witness falls into three stages, only the first of which is obligatory: • • •

first, the party calling the witness examines the witness-in-chief; secondly, the opposing party (or parties) may cross-examine the witness; and finally, the party calling the witness may re-examine the witness.

That this is the ordinary order of examination is confirmed by section 28 of the uniform evidence legislation.64 Each of these stages of witness examination is discussed in turn below. Before turning to the different stages of the examination, however, the chapter discusses the manner and form in which witnesses are questioned, and the role of the judge in the examination of witnesses. It is also important to note that this work is only concerned with the rules that govern the examination of witnesses. Conformity to the rules of evidence is merely one aspect of effective witness examination; the other aspects, which are probably of greater practical importance, are generally dealt with in works on advocacy.

2.3.1 Manner and form of questioning In a common law trial, witnesses generally give their evidence in a question and answer format. That is, they must tell their story in response to the questions asked of them by counsel. Section 29(1) thus provides that ‘[a] party may question a witness in any way the party thinks fit, except as provided by this Chapter or as directed by the court’. The witness must answer the questions asked by counsel (unless either the witness’s claim of privilege or opposing counsel’s objection to the question is upheld by the judge), and the witness can only answer the questions asked by counsel. Although this can be frustrating for the witness, there are several possible justifications for requiring evidence to be given in this way. The first arises from the adversarial nature of criminal proceedings: the witnesses are not there to tell their story—they are there to assist the parties to the litigation. Those parties are entitled to further their cause by asking the questions to which they want answers, regardless of how frustrating this may be for the witness. The second possible justification is that requiring evidence to be given in this way is efficient: only the parties know which parts of the witness’s story are relevant to the litigation, and allowing counsel to direct the witness by their questions to those aspects of their story that are relevant may save the court time. Third, counsel can, by their questions, attempt to ensure that the witness does not give inadmissible evidence; that is, evidence in breach of one or more of the exclusionary rules of evidence. It might,

64 Each of the phrases ‘examination-in-chief ’, ‘cross-examination’ and ‘re-examination’ is defined in Clause 2 of Part 2 of the Dictionary.

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for example, be natural for a witness to include hearsay in the telling of his or her story, but hearsay is generally inadmissible. Although the traditional question and answer format is the norm under the uniform evidence legislation, section 29(2) makes provision for a witness to give evidence ‘wholly or partly in narrative form’. Section 29(4) of the legislation also confirms the common law position, 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’.65

2.3.2 The role of the judge In theory, the examination of witnesses is entirely a matter for the parties, rather than for the trial judge. This is a function of the adversarial nature of common law proceedings, where the judge’s role is to act as umpire rather than inquisitor. It is thus for the parties—and for the parties alone—to decide which witnesses to call, what order to call them in, and what questions to ask them. In practice, however, limited involvement by the trial judge is permitted, and has become increasingly common as judges seek to ‘ensure that the issues are clarified and justice is dispensed within reasonable limits of efficiency’.66 The trial judge might also ask questions designed to eliminate any ambiguities in the witness’s evidence. It is even permissible for the judge to call a witness, although the judge should only do so in civil proceedings if the parties consent, and in criminal proceedings, in very exceptional circumstances.67 Any common law powers held by the judge with respect to the examination of witnesses are preserved by section 11 of the uniform evidence legislation. Section 26 of the legislation also confirms the power of the court to make such orders ‘as it considers just in relation to’, among other things, ‘the way in which witnesses are to be questioned’ and ‘the order in which parties may question a witness’.

2.3.3 Examination-in-chief A witness is first examined by the party that called him or her. This is called the examination-inchief. The aim of examination-in-chief is to elicit from the witness his or her account of the events in question, or his or her observations, in as unobtrusive a fashion as possible.

2.3.3.1 Leading questions Perhaps the most important rule of examination-in-chief is that counsel is not permitted to ask leading questions. There are two kinds of leading question, as is reflected in the way that the phrase ‘leading question’ is defined in the Dictionary: 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 and as to the existence of which the witness has not given evidence before the question is asked.

65 See Butera v DPP [1987] HCA 58; (1987) 164 CLR 180. 66 See FB v The Queen [2011] NSWCCA 217, [93] (Whealy JA). 67 See Re Enoch and Zaretzky, Bock & Co Arbitration [1910] 1 KB 327; R v Damic [1982] 2 NSWLR 750; (1982) 6 A Crim R 35 and R v Apostilides [1984] HCA 38; (1984) 154 CLR 563.

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An example of the first type of question would be to question a witness in a murder trial as follows: ‘At 9.40 p.m. on Thursday 7 November, did you see the defendant leaving the deceased’s home, covered in blood?’ The form of the question clearly indicates that the witness should answer ‘yes’. The information should instead be sought from the witness by means of non-leading questions. Several such questions would be necessary before all the information could be obtained. It would first be necessary to ask the witness where he or she was on the night in question; and only when this had been well established would it be possible to ask the witness what he or she had seen. The classic example of the second type of leading question is ‘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. Both types of leading question are prohibited during examination-in-chief.68 The importance of this rule is clear: without it counsel could simply put words into the mouth of the witness, and thus lead a compliant witness to testify in exact conformity with the case they are trying to establish. The worthlessness of such testimony should be obvious. Indeed, someone with absolutely no memory of the event in question—who may not even have witnessed it—would be capable of providing such testimony. The prohibition is not applied inflexibly, however. Thus, section 37(1) provides that: A leading question must not be put to a witness in examination-in-chief or re-examination unless: (a) the court gives leave; or (b) the question relates to a matter introductory to the witness’s evidence; or (c) no objection is made to the question and (leaving aside the party conducting the examination-inchief or re-examination) each other party to the proceeding is represented by a lawyer; or (d) the question relates to a matter that is not in dispute; or (e) if the witness has specialised knowledge based on the witness’s training, study or experience—the question is asked for the purpose of obtaining the witness’s opinion about a hypothetical statement of facts, being facts in respect of which evidence has been, or is intended to be, given.

It may also be perfectly acceptable for counsel to ‘jog’ a witness’s memory by directing the witness’s attention to an area he or she has overlooked in giving evidence, provided that counsel does not overstep the mark and actually indicate to the witness what evidence should be given.

2.3.3.2 Reviving memory The common law’s emphasis on oral testimony, together with the inevitability of delay, demand a pragmatic response from the law when it comes to allowing the use of aids to memory. Given the lengthy delays between charge and trial, many witnesses have forgotten some or all of the detail of what they witnessed by the time they come to testify. This is especially likely to be true if what was witnessed was simply a routine part of the witness’s life, as, for example, where a doctor is asked to give evidence about a medical examination he or she carried out some time before the trial, or where a police officer gives evidence about the investigation leading up to the charging of the defendant. The prohibition on leading questions in examination-in-chief means that counsel is not permitted to remind the witness of what he or she has forgotten—so how may memory be revived? First, a witness who forgets may, with the leave of the court, be permitted to refer to a document in order to revive his or her memory. Thus, section 32(1) provides that ‘a witness must not, in the

68 Section 37(1).

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course of giving evidence, use a document to try and revive his or her memory about a fact or opinion unless the court gives leave’. Section 32(2) then provides that: Without limiting the matters that the court may take into account in deciding whether to give leave, it is to take into account: (a) whether the witness will be able to recall the fact or opinion adequately without using the document; and (b) whether so much of the document as the witness proposes to use is, or is a copy of, a document that: (i) was written or made by the witness when the events recorded in it were fresh in his or her memory; or (ii) was, at such a time, found by the witness to be accurate.

These are matters that should be established from the witness concerned through the use of nonleading questions. If the witness declares him- or herself unable to recall the answer to a particular question, or if counsel is aware that the witness has forgotten something contained in his or her statement, then counsel might ask a series of questions like the following: Q: A: Q: A: Q: A: Q: A: Q: A:

Can you remember anything else? No. Is there anything that would help you to remember? Yes, my statement would. Do you have your statement with you? Yes, I do. When did you make your statement? When I was interviewed by the police. And when was that? The day after [whatever the event is].

The first question establishes that the witness’s memory has been exhausted, the second that there is a document that could be used to revive the memory, the third question that it is the original, and the fourth and fifth questions that it was made while the events were still fresh in the witness’s memory. In the case of unrepresented defendants who testify, leave should be readily granted to allow defendants to remind themselves of what topics they wish to testify about: Isherwood v Tasmania [2010] TASCCA 11; BC201006360 at [81]. Once a witness has been allowed to use a document to try and revive his or her memory, they may, with the leave of the court, read aloud from that document: section 32(3).69 On its face, section 32(3) allows a court to give such leave even if the attempt to revive memory has failed; however, the difficulty of cross-examining a witness whose memory has not been revived regarding something they have read out from their statement is a powerful factor against granting leave.70 Section 33(1) goes even further, recognising the unique position of police officers, by allowing them in criminal proceedings to ‘give evidence-in-chief for the prosecution by reading or being led through a written statement previously made by the police officer’. Section 33(2) stipulates, among other things, that a written statement can only be used for this purpose if it was made ‘at the time of or soon after the occurrence of the events to which it refers’. Section 35 of the legislation reverses the rule in Walker v Walker (1937) 57 CLR 630 that a party calling for a document in their opponent’s possession may be forced to tender that document in evidence. In the context of the reviving of memory, the effect of section 35 is that a party may call for, and inspect, a document used to revive memory, without that document becoming admissible 69 For a discussion of ‘freshness’ of memory, see Chapter 6: Hearsay Exceptions. 70 See Director of Public Prosecutions v Curran (Ruling No 2) [2011] VSC 280.

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in evidence. The use of a privileged document for the purposes of an attempt to revive memory, whether or not the attempt is successful, and whether or not it occurs in court, will result in the loss of the privilege.71 If the witness chooses instead to attempt to revive his or her memory before coming to court, then there are no limitations on what he or she may use for this purpose. Certainly, no objection can be taken to a witness being shown a copy of a statement he or she may have made earlier. If counsel becomes aware that the witness has attempted to revise his or her memory in this way, then counsel may call for the production of the document—again ‘without penalty’—and production will be ordered.72 Under section 34, failure to produce a document used to revive memory out of court, may result in the witness’s evidence being ruled inadmissible.

2.3.3.3 Unfavourable witnesses Witnesses do not always testify as expected. What can counsel do about that? At common law, the witness’s evidence could only be challenged if the party calling the witness was able to persuade the court that the witness was ‘hostile’; that is, deliberately withholding the truth. The uniform evidence legislation sets a lower standard, permitting a party to challenge the evidence of its own witness if any of three conditions are met. The key provision is section 38(1), which provides that: 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 about 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.

Where the party relies on section 38(1)(c), there is no requirement that the prior inconsistent statement be made shortly after the events it describes.73 The word ‘unfavourable’ in section 38(1) (a) is not defined, but has been held to require more than the evidence is merely ‘not favourable’ or ‘neutral’ to the case of the party that called the witness;74 rather, the evidence ‘must have an unhelpful quality, as opposed to a neutral quality’.75 That is, it should actually detract from the case of the party calling the witness.76 When a witness is called by the prosecution, the question of whether the witness is unfavourable could arguably be complicated by the fact that the prosecution is under a duty to present apparently reliable evidence even if it is at odds with the prosecution case.77 In DPP v Tran, however, Lasry J took the view that ‘the prosecution are entitled to put a case in order to prove the essential elements of the charge in the indictment’, with the consequence that ‘the word “unfavourable” should be given a broad meaning thereby ensuring that in the course of any criminal trial the Court would

71 72 73 74 75

Section 122(6). Section 34. Director of Public Prosecutions v McRae [2010] VSC 114. See Klewer v Walton [2003] NSWCA 308, [20] and [30]. Director of Public Prosecutions (DPP) v McRae [2010] VSC 114, [27]; see also Adam v The Queen [2001] HCA 57, [27]; (2001) 207 CLR 96, 106 (Gleeson CJ, McHugh, Kirby and Hayne JJ). 76 See Hadgkiss v CFMEU [2006] FCA 941, [9]; (2006) 152 FCR 560, 562 (Graham J). 77 See R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279, [54] (Greg James J).

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not be denied evidence as to any relevant issue and would not be denied the opportunity for that evidence to be appropriately tested’.78 Where questioning is permitted under section 38(1) it is, in the first instance, restricted to the material that provided the basis for the granting of leave; for example, where the making of a prior inconsistent statement was the basis for granting leave, cross-examination is, in the first instance, restricted to the making of the prior inconsistent statement. The words ‘in the first instance’ are necessary to take account of section 38(3), which provides that the court may also grant leave for the witness to be cross-examined about matters relevant only to credibility; whether such questions are permissible will depend on the rules discussed in Chapter 11: Credibility. Such questioning is, according to section 38(2), to be taken as cross-examination. The significance of this is that the rules regulating cross-examination, which are discussed in the next section, also apply to the crossexamination of a party’s own witness. The legislation also overturns the common law rule that it is improper to call a witness known to be hostile for the sole purpose of getting his or her prior inconsistent statement before the jury.79 This is because the prior inconsistent statement of an unfavourable witness is, by virtue of section 60, admissible for its truth.80 Lee v The Queen [2009] NSWCCA 259 provides an example of how section 38 can be applied. In that case the accused was charged with rape. The complainant was his son’s de facto partner, who lived in a granny flat at the rear of a house occupied by the accused and his own de facto partner. The accused’s de facto partner had given a statement to the police in which she said that the accused had been drunk on the evening of the alleged rape, that he had come to bed and had attempted to have intercourse with her, but had been unable to achieve an erection (as was usually the case when he had been drinking). The statement was unfavourable to the prosecution case in the sense that the prosecution case alleged that the accused had forced the complainant to fellate his erect penis at around the same time that his de facto partner said that he had been unable to achieve an erection because he was drunk. The prosecution called the de facto partner to give evidence and, on the basis that her evidence was unfavourable to the prosecution, the court then allowed the prosecution to cross-examine her about the accused’s ability to have an erection and on whether or not she had conferred with the accused before they gave statements to the police.

2.3.4 Cross-examination Belief in the ability of cross-examination to expose the truth is one of the foundations of the common law trial. Indeed, Wigmore claimed that cross-examination ‘is beyond any doubt the greatest legal engine ever invented for the discovery of truth’.81 This is mainly because crossexamination 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. One of the most important aims of cross-examination, then, is to damage the credibility of the witness so as to increase the likelihood that the witness’s testimony will be rejected by the tribunal of fact.

78 See Director of Public Prosecutions v Tran (Ruling No 3) [2013] VSC 183, [32], referring to R v Le [2001] NSWSC 174, [14] (McClellan J). See also R v SH, MV and KC [2011] ACTSC 198; (2011) 256 FLR 123, [40]; and Gilham v The Queen [2012] NSWCCA 131, [345]; (2012) 224 A Crim R 22. 79 See Adam v The Queen [2001] HCA 57, [18]–[19]; (2001) 207 CLR 96, 104. 80 See Chapter 6: Hearsay Exceptions. 81 J Wigmore, Wigmore on Evidence, 3rd edn, 1940, Boston: Little, Brown & Co, §1367. The importance of crossexamination is enshrined in the Victorian Charter of Human Rights and Responsibilities, s 25(2)(g).

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An equally important aim, however, is for the cross-examiner to elicit material from his or her opponent’s witness that is favourable to his or her own case.

2.3.4.1 Leading questions The major formal difference between cross-examination and examination-in-chief is that leading questions are permitted (and as a matter of effective advocacy, recommended) in crossexamination. Under section 42(1) the court does, however, have the power to disallow leading questions. Section 42(2) sets out a series of considerations that are to be taken into account by the judge in deciding whether or not to exercise this discretion. The considerations suggest that leading questions would most commonly be disallowed when it appears to the judge that the witness actually favours the cross-examiner’s case. In addition, section 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’.

2.3.4.2 Improper questions: Commonwealth, New South Wales, ACT and Tasmania Section 41(1) requires the court to disallow a question, or inform the witness that it need not be answered, if the court is of the opinion that the question: (a) (b) (c) (d)

is misleading or confusing; or is unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive; or is put to the witness in a manner or tone that is belittling, insulting or otherwise inappropriate; or has no basis other than a stereotype (for example, a stereotype based on the witness’s sex, race, culture, ethnicity, age or mental, intellectual or physical disability).

Such a question is called a ‘disallowable question’. The inclusion of the word ‘unduly’ in paragraph (b) allows the court to strike a balance between allowing a party to test its opponent’s evidence and protecting the witness from unfair treatment. It seems likely that the word ‘unduly’ in paragraph (b) applies to all of the adjectives set out in that paragraph, and not just the word ‘annoying’. In forming its opinion under section 41(1), section 41(2) requires the court to take into account: (a) any relevant condition or characteristic of the witness of which the court is, or is made, aware, including age, education, ethnic and cultural background, gender, language background and skills, level of maturity and understanding and personality; and (b) any mental, intellectual or physical disability of which the court is, or is made, aware and to which the witness is, or appears to be, subject; and (c) the context in which the question is put, including: (i) the nature of the proceeding; and (ii) in a criminal proceeding—the nature of the offence to which the proceeding relates; and (iii) the relationship (if any) between the witness and any other party to the proceeding.

However, a question is not an improper question merely because: (a) the question challenges the truthfulness of the witness or the consistency or accuracy of any statement made by the witness; or (b) the question requires the witness to discuss a subject that could be considered distasteful to, or private by, the witness.82

82 Section 41(3) (and s 41(5) in the Victorian Act).

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Thus, although the duty to disallow a ‘disallowable question’ is mandatory, the criteria that the court must take into account are likely to be interpreted in different ways by different courts, and in different contexts. A party can object to a question on the grounds that it is disallowable;83 however, the court’s duty to disallow the question does not depend on such an objection being made.84

2.3.4.3 Improper questions: Victoria and Northern Territory The Victorian and Northern Territory version of section 41 differs in a number of respects from the version that applies in the other uniform evidence legislation jurisdictions. First, the section applies to both ‘an improper question’ and ‘improper questioning’,85 where ‘improper questioning’ means ‘a sequence of questions’.86 The reason for this difference is to cover situations where the order of questions is, for example, misleading and confusing, even though the individual questions are not.87 Second, although section 41(3) sets out exactly the same list of characteristics of an improper question as does section 41(1) of the Commonwealth and NSW Acts above, there is no reference in the Victorian provisions to the court’s ‘opinion’. Thus, ‘an improper question or improper questioning’ is simply defined to mean ‘a question or a sequence of questions put to a witness that’ has one of those characteristics. Third, except in relation to ‘vulnerable witnesses’, there is no mandatory duty to disallow improper questions or improper questioning: the court retains its discretion. Thus, section 41(1) provides that the court ‘may’ disallow an improper question or improper questioning. However, if a ‘vulnerable witness’ is subjected to improper questioning, then the court ‘must’ disallow the questioning or inform the witness that it need not be answered, ‘unless the court is satisfied that, in all the relevant circumstances of the case, it is necessary for the question to be put’.88 A ‘vulnerable witness’ includes a person under the age of eighteen years, a person with a ‘cognitive impairment or an intellectual disability’, and a person whom the court considers to be vulnerable, having regard to a number of specified factors.89 No guidance is provided by the section as to when it might be necessary for an otherwise improper question to be put, but if the touchstone of necessity is the fairness of trial, then it is difficult to envisage circumstances in which it could be necessary to allow a vulnerable witness to be asked a question that, for example, is ‘misleading or confusing’, ‘unduly annoying’ or ‘has no basis other than a stereotype’.

2.3.4.4 Other improper questions Beyond the Act, the common law also recognises a number of different types of improper questions, and these can also be objected to or disallowed in uniform evidence legislation jurisdictions: •

•

83 84 85 86 87 88 89 90

It is impermissible to ask a witness to speculate about the reasons why another person may have said or done something, or to ask the witness what another person meant when they wrote something.90 It is improper for the prosecution in a criminal proceeding to cross-examine the defendant in order to show that he or she cannot prove any ground for imputing a motive to lie to a prosecution witness: Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1. Palmer itself was Section 41(4). Section 41(5). Section 41(1). Section 41(3). Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005) [5.122]. Section 41(2). Section 41(4). L’Estrange v The Queen [2011] NSWCCA 89, [103]; (2011) 214 A Crim R 9, [103].

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•

•

• •

a prosecution for a sexual offence in which defence counsel put to the complainant that her complaint was ‘some sort of pay-back on [the defendant] for some discretion he does not even know about’. In cross-examining the defendant, the prosecutor established that the defendant was unable to identify any reason that the complainant might have had to make up the story, asking, for example, ‘at this stage, as you sit here today, you cannot think of any reason, or anything you have done to her?’ The High Court held that the prosecutor’s questions were irrelevant, prejudicial and improper. A ‘question’ must be a question; that is, it must ask the witness something, rather than being used by counsel to inject ‘his personal views and editorial comments into the questions’,91 or as an ‘invitation to argument’.92 A ‘compound’ question, which ‘simultaneously poses more than one inquiry and calls for more than one answer’, may be ambiguous, and the answer to such a question may be ‘confusing because of uncertainty as to which part of the compound question the witness intended to address’. They are also unfair to the witness.93 Witnesses should not ordinarily be asked hypothetical questions.94 Generally speaking, it is improper for counsel to cut off a witness’s answer with another question, before that answer is complete.95

2.3.4.5 Prior inconsistent statements One of the primary methods of impeaching the credibility of a witness is by leading evidence of the fact that the witness has, on previous occasions, made statements that are inconsistent with his or her testimony at trial. Such statements are referred to as ‘prior inconsistent statements’. The admissibility of questions about prior inconsistent statements depends on the purpose of such questions, and is therefore determined either by the rules discussed in Chapter 5: The Hearsay Rule and Chapter 6: Hearsay Exceptions, which deal with hearsay, or by those discussed in Chapter 11: Credibility.96 Our present concern is only with the form that such questions must take. A party may be cross-examined about a prior inconsistent statement without first being given particulars of the statement or, if it is recorded in a document, being shown the statement.97 This allows the cross-examiner to retain the weapon of surprise. If the witness does not admit to having made the statement, the cross-examiner may wish to prove that it was in fact made. In order to be permitted to do so, however, the cross-examiner must first inform ‘the witness of enough of the circumstances of the making of the statement to enable the witness to identify the statement’, and then draw ‘the witness’s attention to so much of the statement as is inconsistent with the witness’s evidence’.98 Only if the witness still refuses to admit to having made the statement will independent proof of it be permitted. If the party has already closed its case, then it will be permitted to re-open in order to adduce evidence of the statement.99 If a party cross-examines a witness about a prior inconsistent statement recorded in a document (or a previous representation of another person—see below—so recorded), then the court or another party may require the cross-examining party to produce the document: section  45(2). 91 92 93 94 95 96 97 98 99

Libke v The Queen [2007] HCA 30, [125]; (2007) 230 CLR 559, 600 (Heydon J). Libke v The Queen [2007] HCA 30, [131]; (2007) 230 CLR 559, 603 (Heydon J). Libke v The Queen [2007] HCA 30, [127]; (2007) 230 CLR 559, 601 (Heydon J). See, for example, Rolfe v Katunga Lucerne Mill Pty Ltd [2005] NSWCCA 252, [117]. Libke v The Queen [2007] HCA 30, [128]; (2007) 230 CLR 559, 601 (Heydon J). See Aslett v The Queen [2006] NSWCCA 49, [75]–[76]. Section 43(1). Section 43(2). Section 43(3).

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Once produced, the court may examine the document, give directions as to its use, and (if it is admissible) admit it into evidence even if it is not tendered by any of the parties: section 45(3). In Australian Building and Construction Commissioner v Abbott (No 2), the court suggested that the discretion in section 45(3) might be exercised in order to consider whether the prior statement really was inconsistent in the manner alleged.100 In Matthews v SPI Electricity Pty Ltd, on the other hand, the court declined to exercise its discretion to admit the alleged prior inconsistent statement. In that case, one of the plaintiffs in litigation arising out of the Black Saturday bushfires had claimed that he had suffered economic loss as a result of smoke damage to the grapes on his vineyard. In his evidence-in-chief he testified that the grapes were so affected by smoke that he abandoned picking the 2009 crop. Counsel for one of the defendants sought to cross-examine this plaintiff on the basis of a newspaper article in which he was reported to have said that: ‘The smoke didn’t hang over this area like it did further up the mountain’, and in which there were several statements of fact that could have come from information provided by him, such as that: The 10-acre vineyard, however, was not affected by smoke taint, unlike many others in the region. The couple had already decided, before the fires, not to pick their 2009 harvest because it was already a writeoff because of the heat damage, drought and frost.

During cross-examination, the witness could not recall having made any such statements (or even conversing with the journalist), but denied that he had in fact decided not to harvest his grapes even before Black Saturday. The cross-examining party then asked the court to exercise its discretion to admit the article into evidence. The court refused to do so, holding that: … the admission of a document under s 45(3) is discretionary. I think that a court should, in exercising its power under s 45(3) to permit the tender of the article as a whole, be extremely cautious about the admission of such untested and potentially dubious material especially where the contents of the article go far beyond that of the alleged prior inconsistent statement. If allowed, the tender of the article on the basis that it contains a prior inconsistent statement means that the whole of the document is received as evidence of the asserted facts contained within it [pursuant to s 60]. So the author’s statements as to the reasons for the decision to abandon the 2009 crop could, at least potentially, become evidence of the fact. Of itself, this is good reason to refuse the tender.101

If the cross-examining party wished to prove the prior inconsistent statements, the proper course was to call the journalist.

2.3.4.6 Previous representations of other people A witness cannot be cross-examined on a ‘previous representation’ alleged to have been made by another person, unless that representation has been admitted in evidence, or the court is satisfied that it will be admitted in evidence.102 If these conditions are not met, and the representation is contained in a document, the document may only be used to question a witness in accordance with the following procedure: (a) the document must be produced to the witness; (b) if the document is a tape recording, or any other kind of document from which sounds are reproduced—the witness must be provided with the means (for example, headphones) to listen to the contents of the document without other persons present at the cross-examination hearing those contents;

100 Australian Building and Construction Commissioner v Abbott (No 2) [2011] FCA 308, [11]–[12] (Gilmour J). 101 Matthews v SPI Electricity Pty Ltd (Ruling No 17) [2013] VSC 146, [25] (J Forrest J). 102 Sections 44(1) and (2).

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(c) the witness must be asked whether, having examined (or heard) the contents of the document, the witness stands by the evidence that he or she has given; (d) neither the cross-examiner nor the witness is to identify the document or disclose any of its contents.103

2.3.4.7 The rule in Browne v Dunn One of the most important rules of cross-examination is known as ‘the rule in Browne v Dunn’. Where a party intends to lead evidence that will contradict the evidence given by one of their opponent’s witnesses, or call for an explanation from such a witness, the rule in Browne v Dunn requires that the contradiction be put to the witness in cross-examination. Take, for example, a case where the outcome depended on whether one of the parties was in Melbourne on a particular day, and the party had testified to that effect. If the party’s opponent intended to lead evidence to show that the party had actually been in Sydney on the day in question, the rule in Browne v Dunn would require the opponent to put this allegation to the party in cross-examination.104 Thus: The rule is essentially that a party is obliged to give appropriate notice to the other party, and any of that person’s witnesses, of any imputation that the former intends to make against either of the latter about his or her conduct relevant to the case, or a party’s or a witness’s credit.105

However, this is probably too narrow a statement of the rule because the rule extends not only to imputations against a witness’s conduct, but to any matter on which that witness could give evidence that is at odds with the case of the party conducting the cross-examination. There are several justifications for this rule. First, it is a matter of fairness to the witness that he or she should be given an opportunity to comment on any contradictory or discrediting material. Second, it is important that the party calling the witness should know whether or not the witness’s evidence is to be contested, because if it is, the party may wish to call further evidence to corroborate it. Consistent with this, the fundamental requirement of the rule is that a party has notice that a witness’s version of events is disputed. Cross-examination is only one method of satisfying this requirement: the pleadings, the opponent’s evidence or opening, or the general manner in which the case is conducted may also be sufficient to put the party on notice.106 Finally, the rule assists the tribunal of fact by ensuring that the issues in dispute are ‘well and truly joined on the evidence’. As Wells J commented in Reid v Kerr: there is nothing more frustrating to a tribunal of fact than to be presented with two important bodies of evidence which are inherently opposed in substance but which, because Browne v Dunn has not been observed, have not been brought into direct opposition, and serenely pass one another by like two trains in the night.107

Although the rule in Browne v Dunn applies in both civil and criminal proceedings, caution must be exercised when applying the rule to the defence in criminal proceedings: The position of an accused who bears no burden of proof in a criminal trial cannot be equated with the position of a defendant in civil proceedings. The rule in Browne v Dunn can no more be applied, or applied without serious qualification, to an accused in a criminal trial than can the not dissimilar rule in Jones v Dunkel. In each case it is necessary to consider the applicability of the rule (if any) having regard to the essential accusatory character of the criminal trial in this country.108

103 104 105 106 107 108

Section 44(3). See Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1; (1983) 44 ALR 607. MWJ v The Queen [2005] HCA 74, [38]; (2005) 22 ALR 436, 448 (Gummow, Kirby and Callinan JJ). See Raben Footwear Pty Ltd v Polygram Records Inc [1997] 75 FCR 88; [1997] FCA 370. Reid v Kerr (1974) 9 SASR 367, 373–4. MWJ v The Queen [2005] HCA 74, [41]; (2005) 22 ALR 436, 448 (Gummow, Kirby and Callinan JJ).

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The rule in Browne v Dunn is supplemented, but not replaced, by section 46 of the uniform evidence legislation. This means that the common law rule continues to operate alongside the uniform evidence legislation.109 Where the rule in Browne v Dunn is breached, there are several possible remedies or sanctions: •

•

• •

the court may order the recall of the witness, so that matters that should have been put to the witness in cross-examination can be put now.110 The power to make such orders is specifically confirmed by section 46; the court may allow a party to re-open its case so as to lead evidence rebutting the contradictory evidence, or to corroborate the evidence of the witness to whom the contradictory evidence should have been put; the court may make comments adverse to the party in breach while directing the jury on the evidence; or the tribunal of fact may more readily accept the testimony of a witness to whom the contradictory evidence was not put.

However, at least in the authors’ view, a court does not have the power to reject relevant and otherwise admissible contradictory evidence on the grounds that it should have been, but was not, put to a witness in cross-examination. This is a result of the fact that section 56(1) of the legislation states that ‘[e]xcept as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding’. Nowhere in the legislation does it provide that breach of the rule in Browne v Dunn is a ground for the exclusion of evidence. Despite this, courts have sometimes suggested that breach of the rule in Browne v Dunn can lead to the exclusion of contradictory evidence, albeit that this would only occur in exceptional cases. In Khamis v The Queen, for example, the court commented that: The rule is not a preclusive rule of evidence. Its breach does not necessarily dictate that evidence may not be called in contradiction. … A rule that is grounded in fairness should not be used, except as a last resort, to exclude evidence going to the question whether a person is guilty or not guilty of a criminal charge. That would be to respond to procedural unfairness by imposing substantive unfairness. It is, of course, recognised in this State that a power to exclude the evidence exists but, in my opinion, in a criminal trial, concerning evidence that an accused seeks to adduce, it is a power that should, generally speaking, be used sparingly, and only in circumstances where no other option is available.111

2.3.5 Re-examination After the cross-examination, counsel calling the witness has the right to re-examine him or her. This is an important rule: the witness must ‘answer the question’ and do no more than answer the question, a cross-examiner may, by the use of leading questions, obtain from the witness an answer that is quite misleading. The witness might have wanted to add qualifications to his or her answer or to explain it, but the cross-examiner has the power to force the witness to give his or her answer without any such qualifications or explanations. Through re-examination, counsel can ensure that the witness has an opportunity to add his or her qualifications or explanations, and to clear up any ambiguities in the witness’s answer. Subject to the rules discussed in Chapter 11: Credibility, re-examination can also sometimes be used to re-establish the credibility of a witness whose credibility has been attacked in cross-examination. Because of its purpose—to ensure that answers given in cross-examination are not misleading or 109 See Jardein Pty Ltd v Stathakis [2007] FCAFC 148, [43]. 110 See Reid v Kerr (1974) 9 SASR 367 and R v Popescu (1989) 39 A Crim R 137. 111 Khamis v The Queen [2010] NSWCCA 179, [53]; (2010) 203 A Crim R 121, [52].

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ambiguous—re-examination is restricted to matters arising out of the cross-examination. It does not provide an opportunity for counsel to ask any questions that he or she might have forgotten to ask during the examination-in-chief. Thus section 39, which is headed ‘Limits on re-examination’, provides that on re-examination: (a) a witness may be questioned about matters arising out of evidence given by the witness in crossexamination; and (b) other questions may not be put to the witness unless the court gives leave.

As with examination-in-chief, leading questions are prohibited during re-examination.

2.3.6 Special arrangements for testifying The intimidatingly formal atmosphere of a courtroom may make testifying unduly stressful for some witnesses, and this may affect the quality of their evidence. All of the uniform evidence legislation jurisdictions, therefore, make special arrangements for certain classes of witnesses. Typically, these arrangements are available when the witness is a child, is subject to some intellectual disability, or is the complainant in proceedings for an alleged sexual offence. However, the relevant provisions are not contained in the uniform evidence legislation, and the arrangements and the circumstances in which they are available vary in their details from jurisdiction to jurisdiction. What follows is a broad overview of the various provisions, and this is in no way intended to act as a substitute for the detailed scrutiny of the specific provisions applying in a particular jurisdiction.

2.3.6.1 Availability of arrangements The availability of the arrangements varies from jurisdiction to jurisdiction: • •

•

In New South Wales, special provision for the receipt of the evidence of ‘vulnerable persons’ is made by Chapter 6, Part 6 of the Criminal Procedure Act 1986 (NSW).112 In Victoria, Part 8.2 of the Criminal Procedure Act 2009 contains six divisions—Divisions 3 to 8—each providing alternative arrangements and varying in their application according to the nature of the proceeding in which they apply (although all of the Divisions apply in proceedings for sexual offences) and according to the identity of the witnesses to whom they apply. One of the divisions applies to all witnesses in certain proceedings,113 another applies to a broadly defined category of ‘protected witness’,114 two apply to children and cognitively impaired witnesses,115 and another applies to all other complainants.116 In the Australian Capital Territory, section 8 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) provides for the evidence of children to be given via audiovisual link where available. The provisions of Division 4.3 of the same act apply to complainants in proceedings relating to a sexual offence.117

112 ‘Vulnerable person’ is defined by the Criminal Procedure Act 1986 (NSW) s 306M to mean a child or cognitively impaired person. 113 See Criminal Procedure Act 2009 (Vic), Division 4—Alternative arrangements for giving evidence, s 359. 114 See Criminal Procedure Act 2009 (Vic), Division 3— Cross-examination of protected witnesses, s 353. 115 See Criminal Procedure Act 2009 (Vic), Division 5—Use of recorded evidence-in-chief of children and cognitively impaired witnesses in sexual offence and assault matters, s 366; and Division 6—Procedure and rules for children and cognitively impaired complainants, s 369. 116 See Criminal Procedure Act 2009 (Vic), Division 7—Admission of recorded evidence of complainant in sexual offence matters, s 378. 117 See Evidence (Miscellaneous Provisions) Act 1991 (ACT) Division 4.3.

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In the Northern Territory, Part 3 of the Evidence Act 1939, contains special provisions for ‘vulnerable witnesses’, defined in section 21A to include children, alleged victims of sexual offences, witnesses suffering from an intellectual disability, and any other persons who in the opinion of the court is under a special disability because of the circumstances of the case or their own circumstances.

2.3.6.2 Variety of arrangements A variety of special arrangements can be ordered, including the following: • • • • • • •

The judge may exclude people from the courtroom while the witness is testifying.118 The judge may direct counsel not to robe, or to remain seated while questioning the witness.119 The judge may permit the witness to be accompanied by someone who can provide him or her with emotional support while he or she gives evidence.120 The judge may order the use of screens to remove the defendant from the witness’s field of vision.121 An unrepresented defendant, defending a charge of sexual assault, may not be permitted to cross-examine the complainant.122 The witness may be permitted to give his or her evidence from a place other than the courtroom by means of closed-circuit television or ‘live-link’.123 Perhaps most radically, and in obvious exception to the hearsay rule, the witness’s evidence may be received in a pre-recorded form. In some jurisdictions, this has now been mandated as the ‘normal’ method for certain classes of witness to give evidence.124

118 119 120 121

See Criminal Procedure Act 2009 (Vic), s 360(d). See Criminal Procedure Act 2009 (Vic), s 360(e) and (f). See Criminal Procedure Act 1986 (NSW), s 294C and Criminal Procedure Act 2009 (Vic), ss 360(c) and 365. See Criminal Procedure Act 1986 (NSW), s 294B (3)(b)(i) and Criminal Procedure Act 2009 (Vic), ss 360(b) and 364. 122 See Criminal Procedure Act 1986 (NSW), s 294A(2); and Criminal Procedure Act 2009 (Vic), ss 356–8. 123 See Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 8(1) and 43; Criminal Procedure Act 1986 (NSW), s 306 ZB(1) and Criminal Procedure Act 2009 (Vic), ss 360(a), 362–3 and 389. 124 See Criminal Procedure Act 1986 (NSW), s 306U and Criminal Procedure Act 2009 (Vic), Division 5—Use of recorded evidence-in-chief of children and cognitively impaired witnesses in sexual offence and assault matters, ss 366–8; Division 6—Procedure and rules for children and cognitively impaired complainants, ss 369–77; and Division 7—Admission of recorded evidence of complainant in sexual offence matters, ss 378–87.

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SUMMARY Competence and compellability In general: • • • • •

most people are competent to give sworn evidence; people who are not competent to give sworn evidence may be permitted to give unsworn evidence; most competent witnesses are also compellable; the most important exception to this rule is the defendant; and members of the defendant’s family may object to giving evidence for the prosecution.

Failure to call witnesses Comment •

In certain circumstances, the tribunal of fact may be entitled to draw an adverse inference from a party’s failure to call a particular witness.

The examination of witnesses In the examination of witnesses: • •

• • •

• •

leading questions are prohibited in examination-in-chief and re-examination, but permitted in cross-examination; if a witness is unfavourable, the party that called the witness may be permitted to conduct its examination of the witness in the manner of a cross-examination, through the use of leading questions; during examination-in-chief, a witness may be permitted to refresh his or her memory from a document that was made while the facts were still fresh in the witness’s mind; there are special rules regulating the way in which a witness may be cross-examined about a prior inconsistent statement; a cross-examiner is required by the rule in Browne v Dunn to put to a witness those aspects of its case that contradict the evidence given by the witness or in relation to which the witness might be able to offer an explanation; re-examination is restricted to matters arising out of cross-examination; and special arrangements may be ordered for certain classes of witness.

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INTRODUCTION This chapter is concerned with the means by which the contents of documents and other (real) evidence can be proved, and the rules set out in Parts 2.2 and 2.3 of the uniform evidence legislation. It is not concerned with the admissibility of the contents of documents and other evidence—that is determined by the rules contained in Chapter 3 of the legislation and discussed in Part 2 of this work. In order to be admissible, the contents of a document must be relevant to the facts in issue, and must not fall foul of any of the exclusionary rules of evidence. This will depend on the purpose for which the evidence is being adduced, a question that is discussed below. Once the purpose for which the evidence is being adduced has been identified, it will be possible to assess whether the contents of the document or other evidence are relevant and admissible. In light of this, consideration can then turn to the issues discussed in this chapter. In relation to documents, there are two main issues: the first is whether the contents of a relevant and admissible document can be proved by secondary evidence; that is, by evidence other than the original document itself. The second question relates to the manner in which the document must be authenticated; that is, proved to be that which it purports or is claimed to be. Apart from documents, this chapter also deals with the class of evidence referred to at common law as ‘real evidence’. The defining characteristic of real evidence is that it is evidence that the tribunal of fact is capable of perceiving for itself, such as a physical object or photograph. Under the uniform evidence legislation, the definition of ‘document’ is sufficiently broad to encompass much of the evidence that would have been classified at common law as ‘real evidence’, and all that is left is a small rump of ‘other’ evidence; for that reason the topic is best dealt with in this chapter, rather than in a chapter of its own.

3.1 DOCUMENTS 3.1.1 The purposes for which the contents of documents can be adduced Generally, the contents of documents will be hearsay, because they will contain previous representations being used to prove the existence of a fact that the person making the representation can reasonably be supposed to have intended to assert. If this is the case, in order to be admissible, the document must satisfy the requirements of an exception to the hearsay rule, as well as the requirements discussed in this chapter. Alternatively, a document’s content might be relevant

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to the credibility of a witness; for example, where it contains a prior consistent or inconsistent statement. If this is the case, then the admissibility of a document’s content will turn on the rules that govern the admissibility of credibility evidence. In other cases, a document’s content may be relevant because it has direct legal effect, as with a contract or a will. If the outcome of the proceedings depends on the terms of the contract or will, then the contract or will is obviously admissible in evidence, provided that it meets the requirements discussed in this chapter. Similarly, the contents of a ‘document’, such as the tape recording of a phone call, might provide original evidence of—for example—the existence of a criminal conspiracy, or of the making of an offer to sell illegal drugs.

3.1.2 What is a document? A ‘document’ is essentially an object on which information is inscribed, which is visible to the eye, or which can be viewed or retrieved by means of some device. The medium on which the information is inscribed is unimportant; an inscription on a wall would thus count as a ‘document’ for the purposes of the rules discussed in this chapter. A computer disk or drive is characteristic of modern information storage media, such as tape recordings, video recordings, compact discs and DVDs; the information on which can only be retrieved by means of a mechanical or electronic device. The definition of ‘document’ under the uniform evidence legislation is broad enough to encompass all such media: document means any record of information, and includes: (a) anything on which there is writing; or (b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; or (c) anything from which sounds, images or writing can be reproduced with or without the aid of anything else; or (d) a map, plan, drawing or photograph.

Clause 8 in Part 2 of the Dictionary adds the following: A reference in this Act to a document includes a reference to— (a) any part of the document; or (b) any copy, reproduction or duplicate of the document or of any part of the document; or (c) any part of such a copy, reproduction or duplicate.

These definitions also need to be coupled with that contained in section 47(1) of the legislation, which sets the scope for the rules contained in Part 2.2—Documents. Section 47(1) provides that ‘a reference in this Part to a document in question is a reference to a document as to the contents of which it is sought to adduce evidence’. In other words, the rules for documents in Part 2.2 of the legislation only apply when it is the contents of the document that are relevant. If the contents of the document are not being relied on, then the rules applying to the document are those contained in Part 2.3 of the legislation, and are discussed below (at [3.3]) under the heading ‘Real evidence’. This would be the case, for example, if a document found at the scene of a crime had the defendant’s fingerprints on it, where this fact was being offered to prove that the defendant had been at the scene of the crime. In such a case, the document is not ‘documentary’ evidence. Similarly, if the writing on an object is simply being used as a means of identifying the object, then the evidence is not considered to be ‘documentary’ in nature. The first point to note about the Dictionary definition is its breadth. It clearly includes, for example, films, video and audio recordings, compact discs, and computer disks and files. This means that many kinds of evidence that can be experienced by the tribunal of fact themselves—such

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as photographs, video or audio recordings—and that at common law would have been considered examples of ‘real’ evidence, are in fact governed by the rules applying to documentary evidence.

3.1.3 Secondary evidence of the contents of a document The question to be addressed in this section is the admissibility of secondary evidence of a document’s content. The primary evidence of a document’s content is the original document itself; secondary evidence is anything other than the original. A photocopy of the original is the most common form of secondary evidence. The common law took a very restrictive approach to the use of secondary evidence, but the uniform evidence legislation has swept away the common law rules and replaced them with rules that take a more flexible approach to the use of secondary evidence of a document’s content. Section 51—which is headed ‘Original document rule abolished’—thus provides that ‘[t]he principles and rules of the common law that relate to the means of proving the contents of documents are abolished’. Section 48(1) then sets out a variety of different ways by which a document’s content can be proved. Apart from tendering the document in question, these include the following provisions: •

•

•

•

•

•

Adducing evidence of an admission made by a party about a document’s content: Although, the admission can only be used against the party that made the admission, or that adduced evidence of it.1 The admissibility of such an admission will also depend on the rules contained in Part 3.4 of the legislation, and discussed in Chapter 8: Admissions; Tendering a document that is or purports to be a copy of the document in question, or that has been produced by a device—such as a photocopier—that reproduces the contents of documents:2 Section 47(2) provides that the copy need not be an ‘exact’ copy, as long as it is ‘identical in all relevant respects’. Due to section 146, proof of the copying device’s accuracy will not normally be necessary. Tendering a document that forms part of a business’ records, and that is or purports to be a copy of, extract from, or summary of, the document in question:3 Due to section 147, proof of the accuracy of a device used to produce the document will not normally be necessary. Tendering a ‘public document’, where the document in question is or purports to be a copy of the document in question, and that has been printed by an official government printer, or by authority of a Commonwealth, state or territory government or parliament:4 The scope of this provision is determined by the definition of ‘public document’ contained in the ‘Dictionary’ section of the legislation. If the document in question is ‘unavailable’ to a party,5 the party may prove its contents by adducing evidence of a copy, summary or extract of the document in question, or by adducing oral evidence of its contents.6 A party may also prove a document’s content by adducing evidence of a copy, summary or extract of the document in question, or by adducing oral evidence of its contents, if the existence and contents of the document in question are not in issue in the proceedings.7

1 2 3 4 5

Sections 48(1)(a) and 48(3). Section 48(1)(b). Section 48(1)(e). Section 48(1)(f). The criteria that must be satisfied for a document or thing to be unavailable are defined in Clause 5 of Part 2 of the Dictionary. 6 Section 48(4). 7 Section 48(4); see, for example, R v Cassar and Sleiman (No 28) [1999] NSWSC 651.

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Further provisions allowing the use of secondary evidence to prove the contents of documents are discussed below (at [3.2]) under the heading ‘Particular kinds of documents’.

3.1.4 Authentication of documents Usually, a party cannot tender a document without first having a witness or witnesses establish the evidential foundations for having the document admitted into evidence. Apart from those foundations required by the rules of admissibility discussed in Part 2: Admissibility, it is usually necessary to establish that the document really is what it purports, or is claimed, to be. This is due to a combination of ‘tactical pressures’8 and judicial attitude, rather than any specific provision of the uniform evidence legislation. Indeed, this is despite the fact that the legislative provisions, on their face, appear to remove any requirement to lead evidence of authenticity—in particular: •

•

section 58(1), which provides that ‘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’; and section 183, which provides that if ‘a question arises about the application of a provision of this Act in relation to a document or thing’, the court may ‘examine the document or thing’ and ‘draw any reasonable inferences from it’.

Despite these provisions, in National Australia Bank v Rusu, Bryson J held that before documents could be admitted into evidence, it was necessary for the party adducing the evidence to satisfy the court that the documents were what they were alleged to be; that is, authenticity could not be established simply by drawing inferences from the face of the document.9 In O’Meara v Dominican Fathers, the ACT Court of Appeal queried this conclusion, subject to the qualification that the failure to lead evidence about the provenance of a document could provide a basis for its discretionary exclusion.10 Austin J has sought to reconcile Rusu, and the decisions that have queried it, by agreeing that some evidence of authenticity is required, but arguing that setting the bar will undermine the policy behind those legislative provisions that take a liberal approach to the admission of documentary evidence, such as those that apply to business records. He therefore suggested that: • • • •

Inferences about authenticity can be drawn from the document itself, as permitted by sections 58(1) and 183; However, authentication cannot be achieved solely by drawing inferences from the face of the document, where there is no other evidence to indicate provenance; A simple way of authenticating a document is by evidence from its creator, or from someone who superintends the maintenance of business records that include it; However, a document can also be authenticated by leading evidence of its provenance; for example, that it was produced by a particular person in response to a subpoena requiring documents of a certain type.11

Thus, in Aqua-Marine Marketing Pty Ltd v Pacific Reef Fisheries (Australia) Pty Ltd (No 4) [2011] FCA 578; (2011) 194 FCR 479, the court was willing to find that a document was what it appeared to be, on the basis that there was sufficient evidence of its provenance, observing that: 8 See Australian Law Reform Commission, Evidence (Interim), Report No 26 (1985) Volume 1, [986]. 9 National Australia Bank v Rusu [1999] NSWSC 539, [19]; (1999) 47 NSWLR 309, 313; see also Cordelia Holdings Pty Ltd v Newkey Investment Pty Ltd [2002] FCA 1018, [52]–[54]. 10 O’Meara v Dominican Fathers [2003] ACTCA 24; (2003) 153 ACTR 1, [85] and [90] (Gyles and Weinberg JJ). 11 ASIC v Rich [2005] NSWSC 417; (2005) 191 FLR 385, [116]–[119].

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In this case the document purports to be an email, received by Mr Mark Simonis, a person in the Coles Group. Section 69 exempts a document from the application of the hearsay rule where the document, inter alia, ‘contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business’. To the extent that the document purports to be a communication between Mr Michael Phillips and Mr Mark Simonis, the document appears to satisfy this description. As I have already noted, it is not in dispute that the document was produced by Coles Group in response to the subpoena. Mr Mitris gave evidence during cross-examination that there was communication between Coles Group and employees of the respondent. I accept Mr Peden’s submission that it is unlikely that Coles Group would have fabricated receipt of such a document. I am satisfied at this stage that the document is what it purports to be, namely an email, and is therefore a business record of Coles Group and, accordingly admissible.12

In Kingham v Sutton, on the other hand, the relevant issue concerned the validity of a petition, which purported to be signed, as it was required to be, by 10 per cent of the members of a trade union. Goldberg J held that tendering the petition pursuant to section 48(1): is not evidence of the fact that the signature opposite a name was signed by the named person. Section 48 does not have that consequence. Section 48 enables proof of the existence of the petition to be established by a number of methods, but it does not have the effect of establishing evidence, prima facie or otherwise, that the signatures on it were in fact signed by the named persons.13

The fact that 10 per cent of the members had signed the petition could be proved by leading evidence from each of the members whose name appeared on the petition; or by leading evidence of a system having been adopted and followed of verifying that the people signing the petition were the people whose names appeared opposite the signatures. In the absence of either, Goldberg  J declined to find that the petition had been signed by 10 per cent of the members. The case law thus bears out the prediction made by the Australian Law Reform Commission that ‘parties will continue to authenticate key documents with extrinsic evidence. Tactical pressures will cause this’.14 In addition to the more general provisions in sections 58(1) and 183, there are also numerous statutory provisions that are designed to facilitate proof of the authenticity of particular kinds of documents: •

•

•

Where the document is a public document or an official record, there are provisions in Part 4.3—Facilitation of proof of the uniform evidence legislation that create presumptions of authenticity about documents bearing official seals and signatures. Where the relevance of a document depends upon the question of whether or not it was executed, the fact that it was executed must be established. This might be established by evidence from a witness to the effect that a signature on the document is indeed the signature of the person it purports to be the signature of; or, that the witness recognises the handwriting as being the handwriting of the person whose handwriting it is alleged to be; or, that the witness saw the person in question execute the document. Where the document is more than twenty years old and has been held in proper custody, the document is presumed to have been validly executed.15

12 Aqua-Marine Marketing Pty Ltd v Pacific Reef Fisheries (Australia) Pty Ltd (No 4) [2011] FCA 578; (2011) 194 FCR 479, [15] (Collier J). 13 Kingham v Sutton (No 3) [2001] FCA 1117, [127] (Goldberg J). 14 Australian Law Reform Commission, Evidence (Interim), Report No 26 (1985) Volume 1, [986]. 15 See s 152.

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•

•

At common law, where the validity of a document depended upon it having been properly attested, it was usually necessary to prove this fact by calling one of the attesting witnesses to testify. This common law requirement is abolished by section 149 of the uniform evidence legislation. Where the relevance or admissibility of a document depends on proof of its authenticity, the document is sometimes said to be ‘provisionally’ relevant, pending proof that it is indeed what it purports to be. The way in which courts should approach questions of provisional relevance is discussed in Chapter 4: Relevance.

3.2 PARTICULAR KINDS OF DOCUMENTS 3.2.1 Audio and video recordings Under the uniform evidence legislation, the definition of ‘document’ is sufficiently wide to include audio and video recordings. As the High Court pointed out in Butera v DPP [1987] HCA 58; (1987) 164 CLR 180, it is not the recording itself that is evidence, but that which it records. Thus, the normal way of receiving such evidence is to play the recording in court, so that the sounds or images recorded can be heard or seen by the tribunal of fact.

3.2.1.1 Relevance and authenticity Of course, this can only be done if the contents of the recording are relevant, and do not breach any of the exclusionary rules of evidence. For example, a recording might be relevant because it actually records the events that have given rise to the proceedings; as where a security camera has recorded a robbery. In such a case, the tribunal of fact might be invited to identify the defendant as the perpetrator of the offence based on its own perceptions of the perpetrator. The defendant might also have been recorded conspiring to commit a crime, or making admissions about it (including making admissions during official police questioning). Similarly, in civil proceedings, the plaintiff in a personal injury case might have been recorded moving in a manner inconsistent with his or her alleged injuries. Where spoken words are recorded, the contents of the recording may be hearsay. If so, then the recording will only be admissible if an exception to the hearsay rule applies. Before a recording can be played in court, it must also be authenticated. This may require supporting testimony from a witness with personal knowledge of the circumstances in which the recording was made; that is, testimony reflecting that the machinery used to make the recording was working at the time the recording was made,16 and that the recording has not been tampered with. In some cases, it may also be necessary to lead evidence identifying the scenes or people recorded in a video recording, or the voices recorded in an audio recording. In the absence of such identifying evidence, the sounds and images recorded may lack any connection to the facts in issue. Of course, in other cases, the relevance of the sounds and images may be self-evident.

3.2.1.2 Secondary evidence The uniform evidence legislation takes a flexible approach to secondary evidence, with section 48(1)(c) providing that: where a ‘document in question’ is ‘an article or thing by which words are recorded in such a way as to be capable of being reproduced as sound’, then the contents of the ‘document’ may be proved by ‘tendering a document that is or purports to be a transcript of

16 Section 146 facilitates proof of this.

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the words’. In other words, transcripts are a permissible form of secondary evidence of a sound recording’s contents. Section 48(1)(c) also presumably applies to the sound aspect of a combined audio and video recording, such as that produced by a video camera. In circumstances where a recording is indistinct, a transcript might instead be used as an aid to listening, to help the tribunal of fact understand what it is hearing.17 Moreover, because it is the content of a recording—rather than the recording itself—which is the admissible evidence, there can be no objection to the use of a properly authenticated copy of the original recording, as a means of reproducing the sounds or images recorded.18 Recently, in Wade (a pseudonym) v The Queen [2014] VSCA 13, the Victorian Court of Appeal allowed secondary evidence of CCTV footage of an armed robbery, which had been accidentally deleted, to be given by a police officer who had viewed the footage. Given that the footage fell within the definition of ‘document’, and that the footage was no longer available, this amounted to ‘adducing from a witness evidence of the contents of the document in question’, as permitted by section 48(4)(b).

3.2.2 Photographs Photographs are explicitly included in the definition of ‘documents’, and the principles that apply to audio and video recordings (including film) also apply to photographs. Photographs are admissible in so far as they record relevant and admissible visual information. They may also require authentication of the type discussed above in relation to recordings, as photographs also fall within the uniform evidence legislation definition of ‘documents’, so that secondary evidence of the photograph may be permissible in accordance with the rules discussed above. In criminal proceedings, photographs of the victim of the alleged crime might be admitted in order to show the extent of the victim’s injuries, or to enable experts to point out aspects of the injuries that they consider to be indicative of the way in which the injuries were inflicted. In R v Ames [1964–65] NSWR 1489, for example, photographs of the victim were admitted in evidence, so that the jury could decide whether the direction of the blood flow was more consistent with murder or suicide. Photographs of injuries to the defendant might be adduced by the prosecution, on the basis that the injuries were consistent with the defendant having committed the offence— as in R v Ireland [1970] HCA 21; (1970) 126 CLR 321—or, by the defence, on the basis that the injuries were consistent with the defendant having been assaulted by the police while in custody. Photographs of a crime scene might also be admitted, if the photographs contain information that would assist the tribunal of fact to decide the issues before it. Gruesome photographs could, however, be prone to exclusion on the grounds that they are more prejudicial than probative.19

3.2.3 Maps, models, charts and diagrams Oral testimony will often be more readily comprehensible if supplemented by some sort of visual aid. A chart or diagram might be used to explain a complicated series of transactions or a complex company structure. A map or model of a place where a relevant event occurred might be used to enable a witness to give accurate and comprehensible evidence about exactly what happened. 17 See Butera v DPP [1987] HCA 58; (1987) 164 CLR 180, 187–8; R v Cassar and Sleiman (No 17) [1999] NSWSC 436, [7] (Sperling J). But c.f. G Edmond and M San Roque, ‘Quasi-justice: Ad Hoc Expertise and Identification Evidence’ (2009) 33 Criminal Law Journal 8, arguing that recent practice is actually towards allowing the transcript as evidence on the basis that the transcriber is an ad hoc expert. 18 See Butera v DPP, [1987] HCA 58; (1987) 164 CLR 180, 187–8. 19 See Chapter 16: Discretionary and Mandatory Exclusions.

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In such cases, the map, model, chart or diagram is really just a visual aid to, or summary of, the oral evidence given by the witness. Although it has no value independent of that evidence, its status as an exhibit will usually mean that it can be taken into the jury room for examination by the jury, during the course of its deliberations. The visual aid or summary will be admissible if the court is satisfied that its admission is likely to assist the tribunal of fact to decide the issues before it. For example, in Matthews v SPI Electricity Pty Ltd (Ruling No 34) [2014] VSC 40, the Court allowed the plaintiff—in litigation arising out of the Black Saturday bushfires—to use a scale model of an electricity pole and its surrounds, as an aid to understanding the issues surrounding the fall of a broken conductor from the pole. Similarly, in Smith v The Queen, the High Court agreed that a chart prepared by an expert witness: was nothing but a convenient record of a series of highly complicated cheque transactions which had been proved by other evidence, and was likely to be of considerable assistance to the jury. Had they all been accountants, doubtless, after considerable time, they could have prepared such a chart for themselves. The use of such charts and other time-saving devices in complicated trials of this kind is a usual and desirable procedure and is encouraged by the courts.20

Thus, section 29(4) of the uniform evidence legislation provides 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.

However, to be accorded any real weight by the tribunal of fact, the court will also need to be satisfied that the visual aid or summary is accurate. In the case of a map or model, this usually means that evidence will be required to establish that the map or model is an accurate depiction of the place in question. Similarly, in the case of a chart or diagram designed to summarise the effect of oral evidence, a witness will usually need to testify that the chart or diagram does indeed accurately summarise the effect of his or her evidence.

3.2.4 Computer-generated evidence A great deal of information is stored on computer disks and other modern information storage media. The information stored on such media cannot be accessed directly by a human being; instead, it must be accessed by means of a device such as a computer. For example, business records stored on a computer can only be accessed by opening the records through the correct computer program. Similarly, a document drafted through the use of a word-processing program can only be accessed in its intended form by means of that program. In such cases, section 48(1)(d) of the uniform evidence legislation provides that ‘if the document in question is an article or thing on or in which information is stored in such a way that it cannot be used by the court unless a device is used to retrieve, produce or collate it’, then the contents of the document can be proved by ‘tendering a document that was or purports to have been produced by use of the device’. This means that the contents of a computer disk can be proved by tendering a printout of the information contained on it. If an issue about the accuracy or the reliability of the device is raised, then the effect of sections 146 and 147 is that it will be presumed that the device was accurate

20 Smith v The Queen [1970] HCA 48, [8]; (1970) 121 CLR 572, 577 (Menzies J).

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or reliable when producing the document, provided that the device was either of a kind that is ordinarily reliable,21 or was being used by a business for its purposes.22 The information itself must still, of course, be relevant and admissible. Section 48(1)(d) merely makes it easier to prove the information. In other words, section 48(1)(d) is not an exception to the hearsay rule.

3.2.5 Voluminous and complex documents Under section 50 of the uniform evidence legislation, where documents are voluminous or complex, a party may seek permission to adduce evidence of the document’s content in summary form. In creating such a summary, provided that the evidence to be derived from the documents as a whole has been summarised, it is unnecessary to summarise each document individually.23 However, the summary must be just that—a summary of the contents of the documents—and not an interpretation of them, or a submission, or opinion about them.24 The court may grant the application if several conditions are satisfied: • • •

that it would not otherwise be possible to conveniently examine the evidence, because of the volume and complexity of the documents in question; the party seeking to adduce evidence in summary form has served a copy of the summary on each of the other parties; and it has given the other parties a reasonable opportunity to examine the documents in question.

3.3 REAL EVIDENCE 3.3.1 Introduction The remainder of this chapter deals with evidence that falls outside the uniform evidence legislation’s very broad definition of ‘document’, and which is therefore to be dealt with under the rules contained in Part 2.3 (which is headed ‘Other Evidence’) of the legislation, or by the common law. Part 2.3 begins with section 52, which states: This Act (other than this Part) does not affect the operation of any Australian law or rule of practice so far as it permits evidence to be adduced in a way other than by witnesses giving evidence or documents being tendered in evidence.

There are two other sections in Part 2.3, and both deal with ‘views’. This means that all other evidence falling outside the legislation’s broad definition of ‘document’ is dealt with by the common law principles left intact by section 52, including all other forms of non-documentary ‘real evidence’; that is, evidence that the tribunal of fact can perceive for itself. For example, a court can continue to take ‘into account what it observes about the behaviour of a party’, including matters such as the party’s demeanour while giving evidence, and his or her appearance.25

21 22 23 24 25

Section 146. Section 147. Thackray v Gunns Plantations Ltd [2011] VSC 380; (2011) 85 ACSR 144, [67] (Davies J). See Re Idylic Solutions Pty Ltd [2012] NSWSC 568, [79]–[102]. Bailiff v The Queen [2011] ACTCA 7, [15].

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3.3.2 General principles A proper foundation must always be laid before any non-testimonial evidence can be admitted. There are two main foundations: first, the evidence must be relevant; and second, there must be a basis for finding that the evidence is what it purports, or is alleged, to be. As evidence usually speaks for itself, the relevance and authenticity of the evidence will ordinarily need to be established by means of witnesses who have personal knowledge of facts, such as how the evidence was obtained or brought into being. Without such supporting testimony, the evidence may be ruled inadmissible, excluded in the exercise of discretion, or disregarded by the tribunal of fact.

3.3.3 Physical objects The existence, condition, appearance or value of a physical object may be a fact in issue in the proceedings, or may be relevant to a fact in issue. For example, where the defendant is charged with theft, the prosecution may wish to tender the allegedly stolen goods in evidence. Where the purchaser of goods claims that the goods were of unmerchantable quality, or defective, or different in description from that which the vendor had undertaken to supply, the purchaser may tender the goods to enable the court to form its own conclusions. Where a dog is alleged to be vicious, the dog may be brought into court, so that the court can witness the dog’s behaviour for itself.26 In these examples, a proper evidential foundation will usually be required. This involves establishing both the relevance of the object and its authenticity; that is, that the object is what it purports or is alleged to be. For instance, in the defective goods’ example, evidence would need to be led establishing that the object presented in court was indeed the same as that which the vendor had sold to the purchaser. In the stolen goods’ example, it would need to be shown that the goods found in the possession of the defendant were the same as those that had been stolen; this evidence could obviously be given by the owner of the goods. In some cases, proof of authenticity will require proof of what is referred to as the ‘chain of custody’. This is designed to establish that an object taken from, or found at, one location is the same as that which is being tendered in court. This can be achieved by showing that there has been no opportunity for any interference with the object, or for its replacement with a substitute. The degree to which such foundational matters must be proved is discussed in Chapter 4: Relevance, at [4.4] under the heading ‘Provisional relevance’. In some cases, the relevance of the object will not be as obvious as the defective goods’ example, therefore supporting testimony will be necessary to establish both the authenticity and the relevance of the object. In a murder trial, for example, the prosecution might wish to tender in evidence a blood-stained item of clothing in evidence. In order for the item of clothing to be relevant, it would have to be connected both to the defendant and to the crime, otherwise it is simply an item of clothing with stains on it. The item of clothing could be connected to the defendant in any number of ways, for example: • • •

a police officer might testify that the item of clothing had been found at the defendant’s home; someone who knew the defendant might testify that the defendant owned such an item of clothing; or the defendant might have admitted that the item of clothing belonged to him or her. The item of clothing could also be connected to the crime in several different ways, for example:

•

a witness might testify that the person he or she had seen attacking the deceased had been wearing such an item of clothing;

26 See Line v Taylor (1862) 3 F & F 731; 176 ER 335.

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a police officer might testify that the item of clothing had been found at the scene of the crime; or an expert might testify that a DNA sample taken from the blood stains on the clothing matched a DNA sample taken from the deceased.

When a proper foundation is laid, a physical object can be admitted as an exhibit, inspected by the court, and—where there is a jury—taken into the jury room during deliberations.

3.3.4 Views 3.3.4.1 Inspections, demonstrations and experiments Sometimes the tribunal of fact will be assisted in its understanding of the evidence presented in court, if it is able to see the place where a relevant event occurred, or inspect an object that cannot be brought into court (because, for example, it is immovable or very large). At common law this is referred to as a view; under the uniform evidence legislation, it is referred to as an ‘inspection’, and the word ‘view’ is instead used as a blanket term encompassing demonstrations, experiments and inspections. An ‘inspection’ must be distinguished from a ‘demonstration’, where a witness demonstrates something that he or she has referred to in his or her evidence. A demonstration may be performed in conjunction with a view or inspection. For example: • •

a demonstration of the working of an item of machinery that was involved in a workplace accident; or a demonstration of the extent to which the noise from bands playing in one part of a hall might interfere with the use of another part of the hall.27

A demonstration may also be performed in court. For example: • • •

an expert demonstrating the firing mechanism of a gun allegedly involved in the commission of a crime; a witness showing how a knife was held, or demonstrating a person’s posture; or counsel requiring the defendant to walk in front of the jury and to speak certain words, or to wear clothing found at his home, which was similar to that used in a robbery recorded by security cameras, so as to enable the tribunal of fact to compare the security footage with their impressions of the defendant in court.28

The word ‘demonstration’ is also used to refer to the reconstruction of a relevant event; for example, the reconstruction of a striptease act, in relation to which charges have arisen.29 An experiment is a procedure carried out in order to test a hypothesis. An experiment may be conducted before the tribunal of fact, or its results may be reported to the tribunal of fact by, for example, an expert witness. The tribunal of fact is not, however, permitted to perform its own experiments during the course of its deliberations. In Kozul v The Queen [1981] HCA 19; (1981) 147 CLR 221, for example, one of the issues was whether a gun might have accidentally discharged as the result of a blow to the hand of the person holding it. The trial judge invited the

27 See Scott v Numurkah Corp [1954] HCA 14; (1954) 91 CLR 300. 28 See, for example, Evans v The Queen [2007] HCA 59; (2007) 235 CLR 521, although in that case not all members of the court agreed that this was relevant: see [26], 241 (Gummow and Hayne JJ); [100]–[104], 257–8 (Kirby J); [177], 274 and [183]–[184], 275–6 (Heydon J); [266], 302 (Crennan J). 29 See R v Quinn and Bloom [1962] 2 QB 245.

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jury to experiment with the gun in order to test this hypothesis. The High Court ruled that this was impermissible. Section 53(4) of the uniform evidence legislation confirms this approach, providing that the court is ‘not to conduct an experiment in the course of its deliberations’. This does not prevent the jury from handling the exhibits. In Kozul, for example, Gibbs CJ commented that it would have been perfectly proper for the jury ‘to examine the revolver, and to feel for themselves how much pressure was required to discharge it’.30 This is permissible because it does not involve the testing of a hypothesis. Again, section 53(5) confirms that the inspection of exhibits by the court is not affected by the prohibition on the conduct of experiments. 3.3.4.1.1 Out-of-court demonstrations, experiments and inspections

Section 53, which is headed ‘Views’, contains provisions dealing with demonstrations, experiments and inspections. Despite the breadth of its terms, the High Court has held that section 53 only applies when the demonstration, experiment, or inspection takes place outside the courtroom, in the presence of the parties and the judge and/or jury.31 Section 53 does not apply to experiments conducted prior to the trial of which evidence is to be given at the trial.32 Section 54 provides that the court ‘may draw any reasonable inference from what it sees, hears or otherwise notices during a demonstration, experiment or inspection’. Given the High Court’s restricted reading of section 53, section 54’s operation is also presumably limited to demonstrations, experiments or inspections that take place outside the courtroom. Although the initiative lies with the parties to decide whether or not their interests would be advanced by the conduct of a view, the question is ultimately one for the discretion of the trial judge. In deciding whether to order that a view be held, there are two main areas of concern for the trial judge. The first is to ensure that all parties are accorded procedural fairness. The second is to ensure that the view will assist the tribunal of fact, rather than mislead it. The former aim requires that all parties be given the opportunity of attending the view; the latter requires that the conditions under which the view is held approximate, as closely as possible, those which prevailed at the time at which the relevant events occurred. Section 53(2) of the uniform evidence legislation thus provides that a view should not be ordered unless both parties are given reasonable opportunity to attend, and the judge (and if there is one, the jury) will be present. Section 53(3) then sets out the following factors that a court should take into account in deciding whether or not to order a view: (a) whether the parties will be present; (b) whether the demonstration, experiment or inspection will, in the court’s opinion, assist the court in resolving issues of fact or understanding the evidence; (c) the danger that the demonstration, experiment or inspection might be unfairly prejudicial, might be misleading or confusing or might cause or result in undue waste of time; (d) in the case of a demonstration—the extent to which the demonstration will properly reproduce the conduct or event to be demonstrated; (e) in the case of an inspection—the extent to which the place or thing to be inspected has materially altered.

Where the experiment has been conducted prior to the trial, the question is whether the court should allow evidence of the experiment to be adduced. This question is not governed by section 30 Kozul v The Queen [1981] HCA 19, [13]; (1981) 147 CLR 221, 228 (Gibbs CJ). 31 Evans v The Queen (2007) 235 CLR 521; [2007] HCA 59, [30] (Gummow and Hayne JJ); [63] (Kirby J); [195] (Heydon J); [266] (Crennan J); (2007) 179 A Crim R 232, 242 (Gummow and Hayne JJ); 250 (Kirby J); 280 (Heydon J); 302 (Crennan J). 32 Director of Public Prosecutions (DPP) v Farquharson (No 2) (Ruling No 4) [2010] VSC 210, [58].

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53, but similar principles are likely to apply. In R v Neilan [1992] 1 VR 57, 74–5; (1991) 52 A Crim R 303, the Victorian Court of Appeal approvingly quoted the following passage: One desiring … to introduce evidence of an experiment or test made out of court should first show that the experiment or test is to be made or was made, as the case may be, under conditions and circumstances  similar  to those prevailing at the time of the occurrence involved in the controversy; otherwise, the courts will not, as a general rule, permit the making of the experiments or tests or the introduction of evidence thereof. It is clear, however, that the conditions need not be identical with those existing at the time of the occurrence, but it is sufficient if there is a substantial similarity of conditions. Minor variations in the essential conditions go to the weight rather than the admissibility, of the evidence. There is no precise test or gauge to determine when the requirement of substantial similarity has been satisfied. This depends largely upon the purpose for which such evidence is to be introduced. Speaking generally, however, the measure of permissible variation of the conditions of the experiment or test from those of the occurrence is measured by whether such variation is liable to confuse or mislead the jury. When the conditions are so dissimilar from those of the occurrence in question as to tend to confuse or mislead the jury, the evidence of an experiment or test should be rejected. The question of similarity is one that lies within the sound discretion of the trial court, to be decided in the light of all the surrounding facts and circumstances.

In Farquharson,33 the prosecution case was that the accused had murdered his three sons by deliberately driving his vehicle into a dam, while driving along the Princes Highway near Winchelsea, in Victoria. The accused’s explanation was that he became unconscious as a result of extreme coughing and ‘blacked out’, and that he regained consciousness once the vehicle was in the water. Either way, the accused then escaped from the vehicle while it remained underwater, leaving his three children to drown. No witness saw the vehicle leaving the highway. The prosecution wished to lead evidence from a police crash investigator. The evidence included re-enactments conducted by the investigator, in which he drove along the left-hand lane of the section of highway leading up to the dam, in the same model vehicle as the accused, and removed his hands from the wheel (as if he were unconscious). At the lowest speed, the investigator found that the vehicle tended to pull to the left—away from the dam—and at the two higher speeds he found that the vehicle held its line. On that basis, he formed the opinion that steering input from the driver was needed to make the car leave the road to the right, and then head towards the dam. The defence objected that the car was different from the car driven by the accused (which, on some evidence, may have had a tendency to pull to the right), and that it had not been established that the accused’s vehicle was in the left-hand lane when it started to move to the right. The prosecution also sought to lead evidence of a computer simulation that the investigator had prepared using a program called ‘PC Crash’. This also suggested that the accused’s vehicle could not have veered to the right without steering input from the accused. The defence objected that the simulation took no account of the road or land topography, with the simulation being modelled over a flat surface; nor did it take any account of the effect of a fence that the vehicle must have hit. Lasry J ruled on the admissibility of both pieces of evidence using the principles in Neilan. He held that there was sufficient similarity between the conditions in which the accused drove, and the investigator’s re-enactments, to allow the evidence to be given; but, that the failure to take account of the topography meant that the evidence of the simulation was more prejudicial than probative. 33 Director of Public Prosecutions (DPP) v Farquharson (No 2) (Ruling No 4) [2010] VSC 210; see also R v Farquharson [2009] VSCA 307; (2009) 26 VR 410, [132]–[142]; and Farquharson v The Queen [2012] VSCA 296.

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3.3.4.1.2 In-court inspections, demonstrations and experiments

Given the limited operation of section 53, the common law applies, pursuant to section 52, to an inspection, demonstration or experiment that takes place inside the courtroom. In addition, the requirement of relevance will still apply, as will the exclusionary discretions in sections 135 and  137. On this basis, the court is likely to be guided by similar principles to those set out in section 53, when deciding whether to permit the tribunal to inspect an item of evidence, or to permit a witness to conduct a demonstration or experiment. In Evans v The Queen, for example, security cameras photographed an armed man robbing people of money. The offender was wearing overalls, sunglasses, and a balaclava, which covered most of his face except his eyes and mouth. In December 2003, nearly two years after the robbery, police went to the appellant’s house. They found a red full-faced balaclava in his bedroom, and a pair of blue overalls in the laundry. In the course of his cross-examination, the appellant was required by the prosecution to do three things: to put on the balaclava and the overalls (together with a pair of sunglasses that were not in evidence); to walk up and down in front of the jury; and to say some words that the robber was said to have used. Gummow and Hayne JJ held that: Showing the jury what the appellant looked like when wearing the balaclava and overalls that were in evidence (with or without the addition of sunglasses that had not been received in evidence) could not ‘rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding’. The central issue at the appellant’s trial was whether he was the robber. There was no dispute that there had been a robbery. There was no dispute that the robber had been wearing a balaclava, overalls and sunglasses. No one asserted, however, that the person wearing the disguise of balaclava, overalls and sunglasses could be identified by looking at that person during the robbery or could be identified by looking at the security photographs. None of the witnesses, not even the witness who had seen the robber without the balaclava pulled down over his face, said that they could recognise the man who was thus attired. None of the witnesses, and neither trial counsel, asserted that the person depicted in the security photographs could be identified. Looking at the appellant wearing the balaclava and overalls (with or without sunglasses) enabled a comparison between no more than the items he put on and what was depicted in the security photographs. But that comparison could be drawn without the appellant being asked to put them on. Dressing the appellant in the items provided no information to the jury that could rationally affect, directly or indirectly, the determination of any fact in issue because it revealed nothing about the wearer and nothing about the appellant that was not already apparent to the jury observing him in the dock. Requiring the appellant to put on the balaclava, overalls and sunglasses may be contrasted with requiring him to walk in front of the jury and requiring him to speak certain words. Observing how the appellant walked and how he spoke certain words might bear upon the jury’s decision whether he was the man the witnesses had described. The jury could observe for itself these matters concerning the appellant; the jury could compare its observations with what the witnesses had said about the robber. This stands in sharp contrast with the balaclava, overalls and sunglasses, where the focus necessarily fell only upon the disguise and said nothing about who had worn it. Deciding who had worn the disguise was not assisted by having the appellant put on the items he was asked to put on.34

It is likely that the same result would have been achieved if the court had held that this ‘demonstration’ fell within the scope of section 53.

34 Evans v The Queen [2007] HCA 59, [24]–[27]; (2007) 235 CLR 521; see also [108]–[109] (Kirby J holding that this created a serious prejudice; and [226] (Heydon J, with whom Crennan J agreed, holding that it did not create any unfair prejudice).

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SUMMARY The contents of a document may be proved if the following conditions are met: • • •

the contents of the document are relevant, and do not fall foul of any of the exclusionary rules of evidence; either the original document is tendered, or secondary evidence of the document’s contents is permitted; and the document is properly authenticated as that which it purports, or is claimed, to be.

In relation to some specific categories of evidence: •

•

•

•

visual aids to the understanding of oral evidence, such as maps and models, will be admissible if the maps or models are accurate, and are likely to assist the tribunal of fact; visual summaries of oral evidence, such as charts and diagrams, will be admissible if they accurately summarise the oral evidence, and are likely to assist the tribunal of fact; demonstrations and inspections may be ordered at the discretion of the trial judge, where this is likely to assist the tribunal of fact, and procedural fairness to the parties can be ensured; and experiments may be performed by witnesses, if the court is of the opinion that this will assist the tribunal of fact, but the tribunal of fact is not itself permitted to conduct experiments during the course of its deliberations.

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ADMISSIBILITY

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INTRODUCTION The concept of relevance is foundational to the law of evidence. In this chapter, several different aspects of the concept of relevance are explored, including: • • • •

its role as the fundamental test for the admissibility of evidence; the different ways in which evidence can be relevant; the way in which the requirement of relevance should be applied; and the concept of ‘provisional’ relevance.

4.1 THE FUNDAMENTAL RULE OF EVIDENCE The requirement of relevance is the fundamental rule of the law of evidence. Evidence that is relevant is admissible, unless excluded by the operation of one of the exclusionary rules of evidence. Evidence that is irrelevant is inadmissible, without there being any need to consider any of the exclusionary rules. Thus, section 56 of the legislation provides that: (1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding. (2) Evidence that is not relevant in the proceeding is not admissible.

Therefore, the first question to ask with respect to every item of proposed evidence is this: Is the evidence relevant? It is notable that section 56(2) is expressed in terms that do not require an objection to have been made; that is, irrelevant evidence is inadmissible, even if no objection is made to it at the time that it is adduced. The significance of this is twofold. First, it means that a trial judge may be under a duty to exclude the evidence even in the absence of an objection.1 Second, it means that if an objection is made on the grounds of relevance for the first time on appeal, the failure to object at trial will not necessarily mean that the evidence is admissible; although, it will clearly be relevant to the court’s exercise of its discretion as to whether to grant leave to appeal, or to apply the proviso.2

4.1.1 Definition of relevance Relevance is an ordinary, non-legal concept. Put simply, something is relevant to the determination of an issue (or argument, or question) if it helps us to decide that issue in a rational manner.

1 See, for example, R v Slack [2003] NSWCCA 93, [37]; (2003) 139 A Crim R 314, 324. 2 See, for example, Jackson v The Queen [2005] NSWCCA 411.

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This  idea is put into more formal language in the definition of relevance prescribed by section 55(1) of the legislation: 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.

The uniform evidence legislation’s definition of relevance is consistent with other legal definitions of the concept: ‘Relevant evidence’ means evidence having the tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.3 Any two facts to which it [the word relevant] is applied are so related to each other that according to the common course of events one either taken by itself or in conjunction with other facts proves or renders probable the past, present or future existence or non-existence of the other.4

It is important to note that in assessing whether an item of evidence is capable of rationally affecting the probability of the existence of a fact in issue, the court assumes the credibility of the evidence. This is confirmed by the inclusion of the words ‘if it were accepted’ in the legislation’s definition of relevance.5 As McHugh J has pointed out, ‘Notions of reliability and procedural fairness play no part in testing the relevance of evidence for the purposes of section 55 of the Act’.6 Questions of reliability and credibility are generally to be determined by the tribunal of fact, and the tribunal of fact may ultimately decide that a witness lacks credibility and reject his or her evidence. However, when the tribunal of law determines whether or not a witness’s evidence is relevant, it considers the effect that the evidence could have if it were to be accepted by the tribunal of fact.

4.1.2 Relevant to what? It is impossible to say whether something is relevant without specifying how it must be relevant. In litigation, it is the ‘facts in issue’ to which evidence must be relevant. In criminal proceedings, the facts in issue are the elements of the crime with which the defendant is charged. In civil cases, the facts in issue are the elements of the action being brought by the plaintiff. In other words, the facts in issue are the facts that must be proven by the prosecutor or plaintiff if they are to succeed at trial. These facts are determined by the substantive law, not the law of evidence. If the defendant raises a defence, other than a mere denial of the facts alleged by the prosecutor or plaintiff, then the elements of that defence are also facts in issue at the trial. Again, these facts are determined by the substantive law, not the law of evidence. In Smith v The Queen, the High Court referred to the facts in issue as ‘the ultimate issues’, which are ‘expressed in terms of the elements of the offence’ (or cause of action in civil proceedings). The Court went on to observe that ‘behind those ultimate issues there will often be many issues about facts relevant to facts in issue’.7 These ‘facts relevant to facts in issue’ are often facts from which a circumstantial inference can be drawn.8 Thus, evidence that rationally affects the assessment of the probability of the existence of facts, which are relevant to the facts in issue, thereby affects 3 United States Federal Rules of Evidence, rule 401(1). 4 J Stephen, A Digest of the Law of Evidence, 8th edn, 1907, London: Macmillan, Art 1. 5 Papakosmas v The Queen [1999] HCA 37, [81]; (1999) 196 CLR 297, 321 (McHugh J); see also Adam v The Queen [1999] HCA 56, [22]; (2001) 207 CLR 96, 105; (Gleeson CJ, McHugh, Kirby and Hayne JJ). 6 Papakosmas v The Queen [1999] HCA 37, [87]; (1999) 196 CLR 297, 323. 7 Smith v The Queen [2001] HCA 50, [7]; (2001) 206 CLR 650, 654. 8 See below (at [4.2.2]) for a discussion of circumstantial evidence.

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the assessment of the probability of the existence of the facts in issue themselves; and satisfies the requirement of relevance. It is therefore necessary to clearly identify the facts in issue in a case, before it is possible to determine whether or not a particular item of evidence is relevant. In DPP v Williams, for example, the accused was charged with stabbing an acquaintance; the accused denied that he had been the attacker. In other words, the issue was one of identity. There was evidence that, prior to the alleged stabbing, the accused had told his general practitioner that he ‘felt like killing someone’, that he had prepared gloves and made covers for his shoes with tape, but that he had been stopped by someone. The doctor thought that the person, whom the accused had intended to kill, was his drug supplier. The doctor believed that the conversation had taken place on the day before the alleged stabbing, but conceded that it may have taken place around two weeks’ earlier. The accused was not alleged to have used gloves and shoe covers in the attack, and the victim was not his drug supplier. In those circumstances, Lasry J held that the statements were irrelevant to prove that the accused was the person who had attacked the alleged victim.9 In R v Acuna, on the other hand, the accused had undoubtedly carried out the random attack that caused the death of the victim; the question was whether his conduct was voluntary, and whether he had formed the necessary intent for that conduct to be considered murder. There was evidence that approximately three months’ prior to the attack, the accused said to his community corrections officer that ‘I just want to kill someone’, adding ‘Don’t care, anyone at random’. Given that those were the issues, Coghlan J held that the evidence was relevant, as it was ‘material that the jury could use in deciding whether he had turned his mind to the act of killing, i.e. was voluntary and also on the question of intention’.10 Moreover, if one of the ‘facts in issue’ is not truly in issue between the parties—as, for example, where the defendant admits committing the actus reus of the offence, but denies that he or she had the requisite mens rea—then evidence to prove that fact in issue is not relevant.11 The making of formal admissions—which is discussed in Chapter 8: Admissions—thus provides a mechanism for rendering irrelevant, evidence that might otherwise have been admissible to prove the admitted facts.12 Even when such formal admissions have been made, it can be difficult to determine whether a proposed item of evidence is properly relevant to the facts that remain in issue. For example, in R v Sievers, the accused was charged with murdering his girlfriend, having admitted that he had stabbed her to death, and that he had disposed of her body and the weapon afterwards. However, he claimed to have been acted under provocation, and on that basis was willing to plead guilty to manslaughter. The only real issue in the trial was whether or not he had been acting under provocation, such that he had lost control. The question for the appellate court was whether his conduct after the offence was relevant to this issue. In other words, was the accused’s conduct, which clearly showed a consciousness of guilt of something, relevant to show consciousness that he was guilty of murder (as distinct from manslaughter)? Barr J thought that it was; Simpson J thought that it was not; and Levine J joined Barr J in dismissing the appeal on the—not entirely clear—grounds that the evidence was relevant ‘to the foundational basis for the consideration of provocation, namely that the act would otherwise have been murder’.13 9 10 11 12

Director of Public Prosecutions (Vic) v Williams (Ruling No 1) [2010] VSC 34. R v Acuna [2008] VSC 165, [16]. See, for example, Macrae v The Queen (1995) 80 A Crim R 380, 388. See R v Sievers [2004] NSWCCA 463; (2004) 151 A Crim R 426 , for an example of the problems that can arise in determining issues of relevance when certain facts in issue appear not to be disputed, but no formal admissions have been made. 13 See R v Sievers [2004] NSWCCA 463; (2004) 151 A Crim R 426, [40], [82] and [102]; cf Reid v Hodge [2002] NSWCCA 10, [18] (Levine J).

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4.1.3 How much of an effect on the probabilities? In logic, an item of evidence is relevant if it affects—no matter how minimally—the probability of the existence or non-existence of a fact in issue. At common law, however, courts sometimes insisted on something more. This has led some commentators to distinguish between ‘logical relevance’ and ‘legal relevance’; a distinction that relies on judicial statements to the effect that a particular piece of evidence was insufficiently relevant to be admitted.14 This test of ‘legal relevance’ effectively conferred a concealed discretion on courts to exclude evidence of minimal probative value, where the court considered that the evidence was merely cumulative, would be unduly timeconsuming, or might confuse or distract the tribunal of fact. The approach to relevance in the uniform evidence legislation is much more transparent. In section 55, the test is one of ‘logical relevance’, and factors that favour exclusion in cases of minimal probative value can be openly taken into account, when applying the exclusionary discretions discussed in Chapter 16: Discretionary and Mandatory Exclusions.15 As Kirby J noted in Smith (albeit in dissent), the test is ‘not a stringent or narrow one’.16 This means that, under the uniform evidence legislation, evidence should be classified as relevant if it is capable of rationally affecting the assessment of the probabilities of the existence of the facts in issue, no matter how minimally it does so. However, the evidence must be capable of having some effect. For example, in a case where one of the issues was whether the plaintiff had (as he claimed) fallen down the vertical face of a wall, or had instead fallen down a sloping face of the same wall, the fact that medical notes contained the words ‘? Fall from 1.5 metres onto concrete’ was irrelevant, because it was so ambiguous as to be equally consistent with either possibility, and therefore had no effect on the probability of either.17

4.2 THE DIFFERENT WAYS IN WHICH EVIDENCE CAN BE RELEVANT There are two dimensions according to which evidence can be divided. The first is according to the source of the evidence: Is it a witness, a document, or some other item of real evidence? The second dimension depends on the relationship that the evidence bears to the facts in issue. Although this dimension has no bearing on the admissibility of a particular item of evidence, in order to articulate how a particular item of evidence is relevant, it is useful to understand the different ways in which evidence can be relevant. On this second dimension, three categories can be suggested: direct evidence, circumstantial evidence, and credibility evidence.18 Both direct and circumstantial evidence have (what is often, and confusingly, called) a ‘direct’ connection to the facts in issue; and all evidence that is so connected to the facts in issue, must be either direct or circumstantial. 14 See, for example, R v Stephenson [1976] VR 376, 380–1. 15 See Papakosmas v The Queen [1999] HCA 37, [81]; (1999) 196 CLR 297, 322 (McHugh J); Smith v The Queen [2001] HCA 50, [6]; (2001) 206 CLR 650, 653 (Gleeson CJ, Gaudron, Gummow and Hayne JJ). 16 Smith v The Queen [2001] HCA 50, [24]; (2001) 206 CLR 650, 659. 17 See Lithgow City Council v Jackson [2011] HCA 36; (2011) 244 CLR 352, [25]–[26] (French CJ, Heydon and Bell JJ). 18 See D Schum, Evidential Foundations of Probabilistic Reasoning, 1994, New York: John Wiley, 109–14; Schum actually uses the more accurate phrase ‘ancillary evidence’, with ‘credibility evidence’ merely being a particular type (albeit the most important type) of ancillary evidence. The wider category of ancillary evidence includes all evidence that has a bearing on the probative value, authenticity or credibility of other evidence.

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The distinction between direct and circumstantial evidence lies in the nature of their connection to the facts in issue. The differences are discussed below. Credibility evidence, on the other hand, has no direct bearing on the facts in issue; bearing instead on the probative value or credibility of evidence that does have such a bearing. Despite its more attenuated connection to the facts in issue, credibility evidence is accepted as being relevant on the basis that, anything that affects the probability that a witness is telling the truth, affects the probability of the existence of the facts to which he or she is testifying. The relevance of credibility evidence is recognised by section 55(2) of the uniform evidence legislation, which provides that ‘evidence is not taken to be irrelevant only because it relates only to: (a) the credibility of a witness’. The relevance and admissibility of credibility evidence is discussed, in further detail, in Chapter 11: Credibility.

4.2.1 Direct evidence With direct evidence, the evidence—if accepted—establishes one or more of the facts in issue without the need for any further inference. Direct evidence, given by a witness, involves the witness testifying that he or she perceived one or more facts, which constitute elements of the cause of action or offence. If the witness’s evidence is accepted by the tribunal of fact, then it establishes the existence or non-existence of one or more of the facts in issue. In a rape trial, for example, the complainant might testify that she did not consent. If she is believed, then this establishes one of the elements of the crime. Similarly, in a murder trial, a witness might testify that she saw the defendant shoot the deceased in the chest, and that she then saw the deceased fall to the ground dead. If the tribunal of fact believes the witness, then her evidence establishes one of the facts in issue at the trial: namely, that the defendant caused the death of the deceased. In both cases, the witness claims to have actually perceived the events that are at issue in the proceedings; if the witness does not make this claim, then she is unable to give direct evidence. If a witness provides direct evidence, then the only task for the tribunal of fact is to decide whether or not the witness should be believed. Real evidence may also be direct as, for example, where the tribunal of fact is shown video footage of the occurrence of the event in question. In such a case, the task for the tribunal of fact will be to decide what the footage shows.

4.2.2 Circumstantial evidence In many cases, no direct evidence will be available. No one, other than the defendant, may have perceived the events in question, or those who did may be dead or otherwise unavailable as witnesses. In such cases, the courts will inevitably have to rely on circumstantial evidence. Even where direct evidence is available, it will often be supplemented by circumstantial evidence. Circumstantial evidence, like direct evidence, is generally adduced by means of witnesses testifying about their perceptions. However, unlike direct evidence, circumstantial evidence—no matter how credible its source—is always inconclusive. This is because a witness, whose evidence is circumstantial, will not claim to have perceived the events in question, but only to have perceived facts that render more or less probable the occurrence of those events as alleged. In a criminal case, for example, a witness might testify that he saw the defendant leaving the deceased’s home shortly before the deceased was found there dead. The circumstance is relevant because it suggests, at the very least, that the defendant falls into the limited class of those who had the opportunity to commit the murder.

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The tribunal of fact’s task is more complex when a case is based on circumstantial evidence. First, the party leading the evidence asks the tribunal of fact to believe the witness, and find that the circumstance attested to does exist. Then, the party leading the evidence asks the tribunal of fact to infer from that circumstance that one or more of the facts in issue also exists. The party against whom the evidence is led can either deny that the circumstance exists, or argue that it should not be used as the basis for the inference sought. In the example above, the defendant could deny the circumstance by claiming that he had not visited the deceased that night, and that the witness must be mistaken. Or the defendant could admit the circumstance, but provide an innocent explanation for it; for instance, that the deceased was alive when he left her, or already dead when he arrived. The first task for the jury will be to decide whether or not the circumstance exists; that is, whether or not the defendant was at the deceased’s house, shortly before the deceased was found there dead. This would obviously be an easy task if the defence admitted it. The second task for the jury will be to decide whether or not to draw the inference sought—that the defendant was the murderer. On its own, each piece of circumstantial evidence may establish little; it is the cumulative effect of the evidence, which may eventually persuade the tribunal of fact to draw the inference sought. In the above example, evidence of opportunity alone might do little to persuade the jury of the defendant’s guilt. But if the prosecution was able to lead additional circumstantial evidence—such as, that the defendant had a motive to murder the deceased, owned a weapon similar to that with which the deceased was killed, had traces of blood that matched that of the deceased on his clothing, and so on—then it might be possible to satisfy the jury of his guilt beyond reasonable doubt.

4.2.3 An illustration of the difference The distinction between direct and circumstantial evidence can be illustrated by the case of McCarthy and Ryan (1993) 71 A Crim R 395. In that case, a 17-year-old girl advertised in a local newspaper seeking work as a baby-sitter. She received two telephone calls from a man who discussed baby-sitting work with her. Soon after, the same man rang her at 7 a.m. one day. He asked her whether she would do some baby-sitting for him that day. She agreed. A man and woman arrived shortly afterwards in a black panel van. The woman gave a false name and address to the girl’s grandmother, with whom the girl lived. When the man spoke, the girl recognised his voice as that of the caller. She was asked to sit in the back of the van, because the baby was in the front. The van was driven for around 20 minutes. When it stopped, the man came around to the back of the van and, after threatening the girl with a knife, raped her. After the rape, the man offered his grey sloppy joe to the girl, who put it on. Underneath it, the man was wearing a singlet with a marijuana leaf design. The male defendant was charged with the rape of the girl; the female defendant with being an accessory to the offence. The only issue was one of identity. The girl was able to identify the male defendant as the man who had raped her. This was direct evidence of guilt: if her testimony was accepted, then it proved the defendant’s guilt beyond reasonable doubt. In any event, the prosecution case was also supported by the following circumstantial evidence: • • •

The girl identified a knife, which had been found in the premises where the defendant lived, as the knife with which she had been threatened. The sloppy joe given to the girl was identified by a former girlfriend of the male defendant as belonging to him; she was able to point to a bleach mark made by her when cleaning it. A number of witnesses said that the male defendant frequently wore a sloppy joe and singlet identical to those worn by the male offender, and a singlet with a marijuana leaf design was found among the bedding in which the male defendant slept.

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At the time of the offence, the male offender had a beard and moustache, as did the male defendant. A copy of the local newspaper containing the girl’s baby-sitting advertisement was found in the living room of the premises in which the male defendant lived. A wallet found in the male defendant’s bedroom contained a piece of paper partially recording the girl’s address (the wallet also contained the male defendant’s driving licence). The girl’s description of the vehicle matched that of a vehicle in which the two defendants had driven home earlier on the morning of the rape.

Unlike the girl’s direct identification of the defendant as the offender, none of this evidence is conclusive. Each individual item of evidence is capable of having an innocent explanation. Many people might own a singlet with a marijuana leaf design, but the fact that the male defendant shared this attribute with the offender places him in a limited class of people who might be the offender. Similarly, there might be several reasons why the knife used in the offence was found on premises occupied by the defendant: one of the other occupants (or the defendant) might have found it on the street and brought it home; the police might have planted it there; or, one of the other occupants might have been the rapist. But one possible explanation for finding the knife in the defendant’s home is that the defendant was the rapist. So, while the finding of the knife is not conclusive, it increases the probability that the defendant is guilty. A similar analysis can be applied to each of the other pieces of circumstantial evidence.

4.3 APPLYING THE TEST OF RELEVANCE 4.3.1 A matter of common sense Applying the test of relevance is largely a matter of common sense, logic and experience. For that reason, there is always room for disagreement about whether or not a particular item of proposed evidence is relevant to the facts in issue. Decided cases merely provide examples of the kinds of things that judges have been prepared to hold relevant in the specific cases before them. For example, in Wilson v The Queen [1970] HCA 17; (1970) 123 CLR 334, the defendant was charged with the murder of his wife, who died from gunshot wounds to the head. The defendant claimed that the shooting was accidental. The prosecution wished to lead evidence about various extremely bitter arguments between the defendant and the deceased. Just as evidence that the relationship between the deceased and the defendant was a loving one would tend to support the defence version of events—that a loving husband is unlikely to shoot his wife deliberately—so this evidence of arguments between the couple increased the probability that the shooting was deliberate. As Menzies J commented: Any jury called upon to decide whether they were convinced beyond reasonable doubt that the applicant killed his wife would require to know what was the relationship between the deceased and the accused. Were they an ordinary married couple with a good relationship despite differences and disagreements, or was their relationship one of enmity and distrust? It seems to me that nothing spoke more eloquently of the bitter relationship between them than that the wife, in the course of a quarrel, should charge her husband with the desire to kill her. The evidence is admissible not because the wife’s statement was causally connected with her death but to assist the jury in deciding whether the wife was murdered in cold blood or was the victim of mischance.19

19 Wilson v The Queen [1970] HCA 17, [4]; (1970) 123 CLR 334, 344 (Menzies J).

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4.3.2 Spelling out the connections In deciding whether or not a particular item of evidence is relevant, it is necessary to spell out—as Menzies J did in Wilson’s case—the way in which the evidence connects to the facts in issue. As Gleeson CJ, Heydon and Crennan JJ said in Washer v Western Australia: In order to establish relevance, it is necessary to point to a process of reasoning by which the information in question could affect the jury’s assessment of probability of the existence of the fact in issue at the trial.20

Doing this is advantageous in any case, because if we can explain the process of reasoning that connects the evidence and the facts in issue, then this will make it easier to apply those exclusionary rules—in particular, the hearsay rule and the tendency and coincidence rules—where the admissibility of the evidence turns upon the way in which it is being used. In particular, any assumptions or generalisations about human behaviour upon which the argument for relevance depends should be exposed to scrutiny. Only if the assumption seems justified, or the generalisation true to our own experience of life, should we be prepared to hold the evidence to be relevant. If, for example, one wishes to argue in a rape case that the complainant’s sexual history is relevant to the issue of consent, one should be prepared to spell out precisely how the evidence renders more probable the fact of consent. If the argument merely rests on some untenable proposition such as that ‘a woman who has consented to intercourse with someone outside marriage in the past is more likely to have consented to intercourse outside marriage on the occasion in question’, then it is hard to see how it could possibly satisfy the test of relevance. This sexual history example also highlights the extent to which the determination of questions of relevance can depend upon an individual judge’s social values, or beliefs about human behaviour.

4.3.3 Decisions on relevance Although applying the test of relevance is largely a matter of common sense, logic and experience, appellate courts do sometimes determine appeals on the basis that the evidence objected to was simply irrelevant. For example, in Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1, the High Court held (over a strong dissent from McHugh J) that a criminal defendant’s lack of knowledge regarding the motives that a complainant in sexual offence proceedings might have to fabricate the complaint was irrelevant. In Papakosmas v The Queen, Gaudron and Kirby JJ held that outof-court statements are not necessarily relevant to prove the truth of their contents: whether such a statement has any capacity to affect the probability of the existence of the facts to which the statement relates can only be determined in light of the circumstances in which it was made.21 In Smith v The Queen, the High Court accepted an argument raised for the first time before it: that the evidence of two police officers to the effect that the defendant was the person depicted in a photograph, which recorded the commission of an armed robbery, was not relevant. The foundation for this ruling was that the police officers were in no better position than the jury to decide whether or not the defendant was the person in the photograph. Kirby J’s dissent was based on the contrary view: that the police officers were in a better position than the jury, because the jurors had merely seen the defendant immobile before them in court, whereas the police officers had seen him in a variety of situations.

20 Washer v Western Australia [2007] HCA 48, [5]; (2007) 234 CLR 492, 498. 21 See Papakosmas v The Queen [1999] HCA 37, [52] and [58]; (1999) 196 CLR 297, 313 and 315; see also the comments of McHugh J, [77], 321.

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By contrast, in the case of Phillips v The Queen, the High Court held unanimously that evidence from a number of complainants—that they had not consented to sexual acts allegedly performed on them by the appellant—was irrelevant to the issue of whether or not another complainant had also not consented to the alleged acts of the appellant. According to the Court, the evidence ‘had no more probative value [on the issue of consent] than evidence by them that they had not consented to the performance of sexual acts on them by persons other than the appellant’; that is, ‘[e]vidence that five complainants did not consent could not rationally affect the assessment of the probability that a sixth complainant did not consent’.22 Whether or not one agrees with these decisions, perhaps the most significant thing about them is the fact that the Court is using the requirement of relevance to determine the outcome of appeals. As Kirby J noted in Smith: there remain reasons for caution in permitting a case to take on a completely new complexion, especially where the new point concerns the relevance of evidence. Questions of relevance raise the logical connection between proof of a propounded fact and a conclusion about a matter having persuasive significance for an issue for trial. Notions about the relevance of particular facts to ultimate conclusions in a trial can vary as between the parties, who may see the issues differently. Perspectives of relevance may also develop during the course of a trial as the issues become clearer, as immaterial issues fall away and as understandings of the applicable law become more certain. This is why appellate courts ordinarily defer to the rulings of trial judges about the issue of relevance. Such deference also rests upon a recognition of the fact that practical considerations usually require such rulings to be made on the run and sometimes, as here, in a preliminary decision, before all, or most, or any of the evidence is adduced. Rulings as to relevance therefore depend substantially upon judicial impression. In the face of the fact that relevance is, in part at least, determined by impression, it is significant that neither the trial judge, nor the appellate judges nor counsel earlier perceived the evidence in question to be irrelevant.23

4.4 PROVISIONAL RELEVANCE Sometimes the relevance of a proffered item of evidence will depend upon proof of another fact. Some common examples are as follows: •

•

•

Facts that are only relevant in combination with other facts: In a murder case, for example, the prosecution might wish to lead evidence of the fact that an item of clothing bearing traces of the deceased’s blood had been found abandoned near the scene of the crime. This fact would only be relevant if there was evidence that the item of clothing belonged to the defendant. Similarly, ‘the relevance in murder proceedings of real evidence, such as the alleged murder weapon, depend[s] upon the acceptance of evidence about the fatal wound being consistent with the use of that weapon’.24 Copies of relevant originals: ‘where a party wishes to have a copy document or the transcript of a tape recording admitted. Assuming that the original document or tape is relevant, the relevance of the copy or transcripts depends on a preliminary finding that the copy or transcript is what it claims to be’.25

22 Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303, [50] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ). 23 Smith v The Queen [2001] HCA 50, [23]; (2001) 206 CLR 650, 658–9. 24 The Hon Justice Smith, ‘The More Things Change the More They Stay the Same? The Evidence Acts 1995—an Overview’ (1995) 18 University of New South Wales Law Journal 1, 13. 25 Australian Law Reform Commission, Evidence (Interim), Report No 26 (1985) Volume 1, [646].

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•

•

Machine-produced evidence: ‘the relevance of machine-produced evidence depends upon it being that which the party tendering it claims it to be. This will depend in turn on the accuracy and reliability of the devices involved. The relevance of the machine produced evidence is conditional on accepting the reliability/accuracy of the devices’.26 Acts done in furtherance of an alleged conspiracy: Where two or more people are charged with conspiring to commit an offence, the relevance of such facts obviously depends upon a finding that there was indeed a conspiracy.

If the admissibility of such evidence is suspended, until there has been satisfactory proof of the facts on which relevance depends, this can obviously create inconvenient obstacles to proof. At common law, a fairly strict approach was taken to questions of provisional relevance, but the approach of the uniform evidence legislation to such questions is more relaxed, with section 57(1) providing that: If the determination of the question whether evidence adduced by a party is relevant depends on the court making another finding (including a finding that the evidence is what the party claims it to be), the court may find that the evidence is relevant: (a) if it is reasonably open to make that finding; or (b) subject to further evidence being admitted at a later stage of the proceeding that will make it reasonably open to make that finding.

Paragraph (b) deals with situations like the first example above: in that case, the evidence of the blood on the clothing would be admissible, subject to subsequent evidence being led to establish that the item of clothing belonged to the defendant. If no such evidence was led, then the earlier evidence would become retrospectively inadmissible. The same analysis could be applied to the second example. Section 57(1) is supplemented by section 58(1), which provides that: ‘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.’ This would be of assistance in the third and fourth examples above. Part 4.3 of the legislation contains further provisions facilitating proof. The effect of sections 57(1) and 58(1) is that a court may be willing, for example, to admit an alleged copy of a relevant original document purely on the basis of its examination of the alleged copy. There is some uncertainty about the extent to which questions of the authenticity of documentary or real evidence are covered by this provision: See the discussion on this point in Chapter 3: Documentary and Real Evidence, at [3.1.4] under the heading ‘Authentication of documents’. Section 57(2) contains a further, specific provision that applies in conspiracy cases: Without limiting sub-section (1), if the relevance of evidence of an act done by a person depends on the court making a finding that the person and one or more other persons had, or were acting in furtherance of, a common purpose (whether to effect an unlawful conspiracy or otherwise), the court may use the evidence itself in determining whether the common purpose existed.27

This means that, if the relevance of acts done in furtherance of an alleged conspiracy depends upon a finding that the conspiracy existed, then—for the purposes of determining relevance—the existence of the conspiracy may be inferred from the acts themselves.

26 Ibid. 27 The common law is to the same effect: see Ahern v The Queen [1988] HCA 39; (1988) 165 CLR 87.

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SUMMARY Under the uniform evidence legislation, the requirement of relevance is the fundamental rule of admissibility: • • • •

evidence that is relevant to the facts in issue in proceedings is, subject to any exclusionary rules and discretions, admissible in those proceedings; and evidence that is not relevant to the facts in issue in proceedings is inadmissible in those proceedings; evidence is relevant if it could, if accepted, affect the probability of the existence of the facts in issue in the proceedings; and where the relevance of an item of evidence depends upon proof of another fact, the item of evidence is said to be ‘provisionally’ relevant.

Evidence can be classified according to the nature of its connection to the facts in issue: • • •

direct evidence is evidence that, if accepted, establishes the existence or non-existence of one or more of the facts in issue in the proceedings; circumstantial evidence is evidence from which the existence or non-existence of the facts in issue can be inferred—it is always inconclusive; and credibility evidence is evidence that has no direct bearing on the facts in issue, but that is relevant to the credibility of evidence that does have such a bearing.

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INTRODUCTION The hearsay rule is arguably the most important, and the most difficult rule of evidence. Analysis of evidence in terms of the hearsay rule can be divided into three distinct stages. The first stage of the analysis is the same for all evidence: the question of whether the evidence is relevant to the facts in issue at trial. The second stage of the analysis is to determine whether the evidence comes within the scope of the hearsay rule. If so, it is prima facie inadmissible. It is this second stage that is dealt with in this chapter. Because the question of whether evidence is hearsay depends on the way in which the evidence is being used, the second stage of the analysis is made much easier, if the reasons why the evidence is relevant are adequately identified in the first stage of the analysis. The third stage of the analysis—which is dealt with in the next chapter—is to ask whether the evidence, though hearsay, is nevertheless admissible, because it comes within the scope of one of the many exceptions to the hearsay rule. Two of those exceptions are actually dealt with in this chapter, on the grounds that they significantly affect the scope of the rule. These are the exceptions contained in sections 60 and 66A. The chapter discusses the following issues: • • • •

first, the rationale for the hearsay rule; second, the scope of the rule under the uniform evidence legislation; third, inferences of and from mental and physical states; and fourth, evidence that is admissible for a non-hearsay purpose.

5.1 RATIONALE FOR THE HEARSAY RULE Most legal proceedings involve disputes about matters that occurred beyond the view of the court. The resolution of such disputes will typically be assisted by people who were in a position to observe the disputed events. However, such people must first communicate an account of what they witnessed. The hearsay rule rests on a simple distinction based on the time when this communication occurs. Imagine a negligence case arising from a car crash, at a city intersection, near where a pedestrian was waiting to cross the road. What the pedestrian observed, in the moments before the crash, may be very significant in determining the outcome of the case. For example, the pedestrian may have seen (or at least thought she saw) one of the cars go through a red light. The hearsay rule draws a fundamental distinction between two ways that the court could learn about what the witness observed.

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First, the pedestrian may, during the trial, enter the courtroom and describe what she witnessed. As Chapter 2: Witnesses details, to testify at the trial, the pedestrian must typically do all of the following: • • •

swear an oath or make an affirmation (allowing a perjury prosecution if the testimony includes a deliberate lie); speak from the witness box (ensuring that the fact-finder can observe behavioural cues, such as tone of voice and demeanour); and submit to cross-examination by the opposing party (potentially exposing doubts about the contents of the testimony and the witness’s credibility).

While these procedures serve a variety of purposes, one effect is to assist the fact-finder in determining whether the pedestrian’s description of what she saw is accurate. Before the pedestrian’s testimony can be relied upon as a basis for inferring that the defendant ran a red light, the alternative possibilities—that the pedestrian was mistaken about what she saw, or was deliberately lying—must be considered and discarded. The fact-finder’s resolution of these questions, one way or the other, may be influenced by its knowledge that the pedestrian was willing to make her claim on oath, her behaviour and mannerisms while describing what happened, and her response to questions put by the defendant’s lawyer. For instance, careful questioning might reveal that the pedestrian noticed the red light only after the defendant’s car passed, leaving open the possibility that the light was actually orange when the defendant’s car entered the intersection. The second way that the court could learn about what the pedestrian observed, is by relying on the pedestrian’s words or conduct outside the courtroom. If this occurs, the fact-finder’s ability to assess the accuracy of the pedestrian’s account of what she witnessed will differ from the first scenario. The pedestrian’s communication of what she observed will not have been made under oath or affirmation, will not have occurred in view of the fact-finder and, most importantly, cannot be tested through questions put by the defendant’s counsel. So, the fact-finder will have to resolve the important question of whether or not the pedestrian’s account can be trusted as accurate, without the assistance of those procedures. For example, there may be no way of discerning whether or not the pedestrian saw that the light was red, at the precise moment that the defendant’s car entered the intersection. The fact-finder will have to proceed without the benefit of her answer on oath to a question about this point. The two scenarios contrast with each other in many important ways, but the hearsay rule’s rationale rests on just one difference between them: the availability of courtroom processes to test the pedestrian’s claim about what happened. The hearsay rule restricts the inferences that the factfinder can draw from the pedestrian’s account in the second scenario, because the procedures of oath, observation and cross-examination could not be applied to that account. Hearsay evidence is thus excluded, not because it is necessarily unreliable, but because it is difficult for the tribunal of fact to determine what weight it should be given. As Lord Normand said in Teper v The Queen [1952] AC 480: The truthfulness and accuracy of the person whose words are spoken by another witness cannot be tested by cross-examination and the light which his demeanour would throw on his testimony is lost.1

1 Teper v The Queen [1952] AC 480, 486.

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Relying on hearsay evidence is analogous, therefore, to reliance on witness statements rather than on witness testimony. It is not until the witness actually testifies that the value of his or her evidence can be assessed, and it is a common courtroom experience to see a witness whose evidence appeared impressive on paper crumble under cross-examination. Doubts and uncertainties about the credibility of the witness, which were not apparent from the statement itself, may seem so significant that the tribunal of fact ultimately decides to reject the witness’s evidence. When hearsay evidence is admitted, the tribunal of fact does not get to see the ‘witness’ testify, and this obviously makes the task of deciding what weight to give his or her statement extremely difficult.

5.1.1 The law’s response The rationale for the hearsay rule, then, is not so much that hearsay evidence is inherently unreliable or necessarily lacking in weight, as that the reliability and weight of hearsay evidence is difficult to assess, because it cannot be properly tested in court. This rationale suggests two possible approaches to hearsay evidence. The first would be to admit hearsay evidence on the grounds that it is relevant, and that the tribunal of fact ought to have access to all relevant information, but to require the judge to give an appropriate warning about the reasons why it might be unsafe to act on assertions not made in court. The second approach would be to have a general rule of exclusion, subject to exceptions that admit hearsay evidence, either when the circumstances suggest that the evidence is likely to be reliable, or when the evidence is essential. The common law adopted this second approach, which the uniform evidence legislation has largely retained. Hearsay evidence is prima facie inadmissible, subject to numerous exceptions that are designed to admit evidence when either, or both, of the conditions of reliability and necessity are met. In contrast to the common law, however, the uniform evidence legislation also takes some steps towards the first approach outlined above. It does this by: • • •

narrowing the definition of hearsay; dramatically increasing the scope of the exceptions, particularly in civil proceedings; and requiring that admissible hearsay be subjected to an appropriate judicial warning.2

The net effect of these reforms is to increase the amount of hearsay evidence that will be admitted in court.

5.1.2 Justification for the retention of a hearsay rule in the uniform evidence legislation The Australian Law Reform Commission recommended the retention of a hearsay rule in the uniform evidence legislation on the following grounds:3 • • • •

out-of-court statements are usually not on oath; there is usually an absence of testing by cross-examination; the evidence might not be the best evidence; there are dangers of inaccuracy in repetition;

2 See Chapter 19: Warnings and Information. 3 See Australian Law Reform Commission, Evidence (Interim), Report No 26 (1985) Volume 1, [661]–[675]; Australian Law Reform Commission, Evidence (Final), Report No 38 (1987) [126]; Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005) [7.9].

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there is a risk of fabrication; to admit hearsay evidence can add to the time and cost of litigation; and to admit hearsay evidence can unfairly catch the opposing party by surprise.

Some of these justifications are open to question. First, in so far as the out-of-court statement ‘might not be the best evidence’, it is true that a practical consequence of the hearsay rule is to require parties wanting to rely on information observed by a person to call that person as a witness. However, this consequence applies even when the first-hand account is clearly inferior (for example, because the witness’s memory has faded), or simply unavailable (for example, because the witness refuses to testify, or has died). The ‘best evidence’ principle is only served if the reliability and necessity of each out-of-court account is considered, but this only occurs in the limited scenarios covered by the exceptions to the hearsay rule as discussed in the next chapter. Second, it is often assumed that the hearsay rule has the effect of promoting accurate factfinding (which is, as noted in Chapter 1: Uniform Evidence Law, the primary purpose of evidence law). Certainly, the trial processes for assessing witnesses are often regarded as extremely beneficial to the fact-finding process. For example, Wigmore’s view that cross-examination is ‘beyond any doubt the greatest legal engine ever invented for the discovery of the truth’.4 However, the hearsay rule’s simple rationale ignores the impact of the passage of time, and the onset of legal proceedings, on the accuracy and impartiality of a witness’s trial testimony. Wigmore notwithstanding, the rule also disregards numerous compelling criticisms of trial processes, such as psychological literature questioning the utility of behavioural cues in determining the accuracy of human communication, as well as the negative impact of trial processes on witnesses, notably the humiliation and deterrence of rape complainants. Indeed, some critics of the hearsay rule view its impact on fact-finding as largely capricious. Instead, the hearsay rule can be understood as part of a tradition aimed at preserving the common law model of an adversarial trial based on oral accounts by eyewitnesses, in contrast, for instance, to the dossier of witness statements that is the focus of the continental European inquisitorial trial. One of the principal effects of the hearsay rule, then, is to preserve the right of a party to insist on proof of witnessed events by sworn testimony, which can be tested by cross-examination. In the United States of America, this right has been partially elevated to a constitutional level through the ‘confrontation clause’, which is the Sixth Amendment’s guarantee that ‘[i]n all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him’.5

5.2 SCOPE OF THE HEARSAY RULE Although the hearsay rule’s rationale is located in the difficult task of deciding what weight to attribute to an out-of-court statement, the definition of hearsay has nothing to do with reliability. The circumstances, in which a particular statement was made, might suggest that the statement is inherently likely to be reliable; or, the statement might be so consistent with the other evidence in the case that doubts about its reliability seem unfounded. The reliability of the statement is, however, entirely irrelevant to its classification as hearsay; that depends, instead, on the purpose

4 J Wigmore, A Treatise in the System of Evidence in Trials at Common Law, 3rd edn, 1940, Boston: Little, Brown & Co, §1367. 5 An accused person’s right to examine the witnesses against him or her is also now protected by the Victorian Charter of Human Rights and Responsibilities, s 25(2)(g).

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for which the statement is being used. The fact that an out-of-court statement appears to be reliable does not, therefore, mean that the statement is not hearsay.

5.2.1 Hearsay defined in section 59(1) Under the uniform evidence legislation, the hearsay rule is contained in section 59(1), which defines hearsay in the following way: 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.6

Sub-section (2) provides that ‘Such a fact is in this Part referred to as an asserted fact’. There are several elements to the definition in section 59(1) that require some further examination, including the meaning of the terms ‘representation’, ‘previous representation’, ‘made by a person’, and the requirement of intention.

5.2.2 ‘Representation’ ‘Representation’ is defined in the Dictionary to include the following: (a) (b) (c) (d)

an express or implied representation (whether oral or in writing); and a representation to be inferred from conduct; and a representation not intended by its maker to be communicated to or seen by another person; and a representation that for any reason is not communicated.

The word ‘representation’ thus includes both written and oral statements. It can also include non-verbal conduct. It would make no difference, for example, if a dying person identified their assailant by name or by pointing to a photograph of them. Both would be ‘representations’. The ‘hear-say’ rule can, in other words, be a ‘see-do’ rule. A statement of an opinion would also be a representation, so that a representation in the form of an opinion as to the existence of a fact is likely to be caught by both the hearsay and opinion rules, so that it will only be admissible if it falls within the scope of exceptions to both rules.7 In Lee v The Queen, the High Court commented on the breadth of the definition of ‘representation’ in the uniform evidence legislation: ‘Representation’ is often used in the law to refer to words that are intended to induce action or inaction by the person who hears or reads them … But it is clear … that … the term ‘representation’ was used [in s 59(1)] to apply to statements and to conduct and was used to encompass all that those statements or that conduct would convey to the observer.8

In R v Rose (2002) 55 NSWLR 701, section 59(1) was even held to be applicable to inactivity. A police officer asked a murder victim’s university class whether the victim had ever been seen in the company of a person of a particular description. The Court held that the jury could not

6 As discussed below, the phrase ‘that it can reasonably be supposed’ was only inserted in 2008. In the Commonwealth and New South Wales Acts, but not in the Victorian Act, the operation of sub-s (1) is limited by sub-s (3), which provides that: ‘Subsection (1) does not apply to evidence of a representation contained in a certificate or other document given or made under regulations made under an Act other than this Act to the extent to which the regulations provide that the certificate or other document has evidentiary effect.’ 7 See Lithgow City Council v Jackson [2011] HCA 36; (2011) 244 CLR 352, and SPAR Licensing Pty Ltd v MIS QLD Pty Ltd (No 2) [2012] FCA 1168, [238]–[240]. 8 Lee v The Queen [1998] HCA 60, [21]; (1998) 195 CLR 594, 559.

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infer that the murder victim had not been seen with such a person from the fact that none of the 300 students raised a hand: if the lack of response to the Superintendent’s inquiry was to be placed before the jury as evidence that none of the 300 students spoken to had seen the deceased with a person who owned a white Ford Fairlane or similar vehicle, it was hearsay evidence. The asserted fact being relied upon in the prior representation made by each student’s silence was that the student had not seen the deceased with such a person. The Crown argued that the evidence of the response, or lack of response, to the Superintendent’s inquiry was led for no other purpose than to prove that no student came forward in answer to the inquiry. But what was the relevance of that fact, unless the jury was asked to draw from it an inference that, because the students had not seen the deceased with such a person, she had never been with such a person and, therefore, no such person existed?9

The inclusiveness of the word ‘representation’ is, however, to a significant extent curtailed by the fact that the hearsay rule only applies when the representation is being used ‘to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation’. The requirement of intention is discussed below.

5.2.3 ‘Previous representation’ The phrase ‘previous representation’ is defined in the ‘Dictionary’ section of the legislation as, ‘a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced’. The category of ‘previous’, or past accounts, covers the period between the witnessed events themselves and the start of the trial, which is typically a period of months or years. This includes an account made during previous legal proceedings, such as an account given by the pedestrian at an earlier criminal prosecution of the defendant for culpable driving. Although such accounts will be accompanied by trial process, they fall within the rule’s rationale because the fact-finder and, almost certainly, the issues and parties, will be different in the earlier proceedings, so that the availability of trial processes at the time of the testimony will be of limited assistance to the fact-finder in the later proceedings. The hearsay rule in section 59(1) also applies to statements made by a witness other than during the course of their testimony. For example, prior to testifying, a witness might have made statements either consistent or inconsistent with his or her testimony at trial. The hearsay rule applies to such statements, if they are used to prove that what the person said on the prior occasion, is what actually happened (as opposed to being used to impeach or bolster their credibility).10 Given that the witness can be cross-examined, both about their in-court testimony and their prior out-of-court statements, this application of the rule is arguably irrational. As Judge Learned Hand once pointed out, when the jury decides that the truth is not what the witness says now, but what the witness said before, they are still deciding on the basis of what they have seen and heard in court.11 Nevertheless, this use of a previous representation is hearsay, albeit hearsay that may be admissible under one or other of the exceptions to the rule discussed in Chapter 6: Hearsay Exceptions, or, by virtue of section 60, discussed below (see [5.4]) under the heading ‘Evidence relevant for a non-hearsay purpose’. Also falling outside the rule’s ostensible rationale—but nevertheless hearsay—is evidence given during an earlier interlocutory phase of the proceedings, such as a hearing to determine a privilege

9 R v Rose [2002] NSWCCA 455, [264]–[265]; (2002) 55 NSWLR 701, 709. 10 See Chapter 11: Credibility. 11 Di Carlo v US 6 F 2d 364, 367–8 (1925).

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question; at least, ‘where one can readily segregate the interlocutory or other phases of a matter from the trial, proceeding or phase in which the evidence is sought to be adduced’.12 In cases where evidence-in-chief is given on affidavit, however, the affidavit is not counted as a ‘previous representation’, even though the affidavit was prepared and sworn some place other than the courtroom. Instead, the affidavit is treated as sworn evidence given in the proceedings in which it is relied on, exposing the deponent to prosecution for perjury, and with the opposing party having the opportunity to cross-examine the deponent. The application of the hearsay rule does not depend on the means by which evidence of a previous representation is adduced. This is because the hearsay rule is not concerned with whether the previous representation was made, but with the use that can be made of it. In the example of a pedestrian, who apparently witnessed a car going through a red light, it therefore makes no difference whether the evidence of the pedestrian’s previous representation is adduced in the form of: • • • • •

a witness to whom the pedestrian said: ‘that car went through a red light’; a piece of paper on which the pedestrian has written the words: ‘I just saw a car go through a red light’; an audio tape that records the pedestrian saying: ‘that car just went through a red light’; a video tape that shows the pedestrian saying: ‘that car just went through a red light’, or making a gesture to that effect; or a photo of the pedestrian pointing in the direction of the traffic light.

The hearsay rule thus applies even when the fact-finder can witness for itself the making of the previous representation. The reason for this is that, the means by which evidence of a previous representation is adduced, does not alter the fact that trial processes (such as cross-examination) cannot be applied to test the accuracy of the previous representation. The hearsay rule can also apply even when the making of a previous representation is merely implicit in the evidence before the court. For example, in R v Eastman, the prosecution wished to prove that the accused was the person who bought a weapon from a gun salesman in Queanbeyan (this being the weapon used to murder an assistant commissioner of the Australian Federal Police, Colin Winchester). There was evidence that the gun salesman had told another prospective purchaser: ‘A man from Canberra has looked at it and wants to buy it. He said he was going away to get the money and would be back later. If you want to buy it perhaps you could give me a ring later and check if he has come back or not.’ The accused was from Canberra. Among its other possible uses, the gun salesman’s statement would be relevant to prove that the purchaser of the murder weapon was, like the accused, from Canberra. However, it would be hearsay for this purpose, because the gun salesman could only have known the customer’s city of origin, if the customer had said or done something to reveal where he came from. Accordingly, the statement from the gun salesman was really evidence of an unidentified previous representation by the customer, and the hearsay rule would apply to any attempt to infer from that act that the customer actually was from Canberra.13

12 See Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd [2008] FCA 369, [27]; (2008) 167 FCR 314 (Rares J). 13 See R v Eastman, ACT Supreme Court, unreported, 10 August 1995, Carruthers AJ; and R v Eastman [1995] ACTSC 59. See also the discussion of this case in Chapter 6: Hearsay Exceptions, [6.2.1] in relation to the definition of ‘first-hand’ hearsay.

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5.2.4 ‘Made by a person’ The hearsay rule is restricted to representations made by human beings. The acts or output of non-humans is not within the scope of the hearsay rule. In a sense, some animals and machines (for example, cameras) are capable of ‘witnessing’, and then ‘communicating’ information about events and, more broadly, a fact-finder can often learn information about events by considering the physical consequences of those events. However, the trial procedures surrounding witness testimony (notably oath and cross-examination) require communication in the form of words, which is the hallmark of human communication. So section 59(1) is expressly limited to representations ‘made by a person’. This means that the hearsay rule does not regulate what can be inferred from the following out-of-court ‘representations’: • • •

the flash of a red light camera as the defendant’s car entered the intersection; the screeching of brakes as the defendant’s car entered the intersection; and a barking dog, used to pinpoint the time of the murders in O J Simpson’s trial.

By contrast, the hearsay rule could apply to evidence of an unidentified human voice yelling equivalent information such as: ‘He just went through a red light!’, ‘I’m braking!’, or ‘Murder!’ In practice, applying the hearsay rule will sometimes require deconstructing communications that are a composite of human and non-human activity. In R v Wood (1983) 76 Cr App R 23, for example, lab technicians analysed some metal and entered the results of the analysis into a computer, which performed complex mathematical calculations to determine the metal’s composition. The English Court of Appeal held that the hearsay rule did not prevent the resulting computer printout from being used to infer the result of the computer’s calculations; however, the document could not be used to infer the accuracy of the data entered by the humans. Reliance on the document as an accurate description of the metal would, therefore, (unless an exception to the hearsay rule applied) require sworn evidence by the technicians about the origins of the data entered into the computer.

5.2.5 Hearsay uses of a previous representation Whether a previous representation made by a person is hearsay, or not, depends on what it is being used to prove, and how it proves it. The law distinguishes between hearsay purposes or uses, and non-hearsay purposes or uses. If the previous representation is being used to prove the ‘existence of a fact that it can reasonably be supposed that the person intended to assert by the representation’, then it is being used for a hearsay purpose, and is hearsay. If it is relevant in some other way, then it is being used for a non-hearsay purpose, and is not hearsay. This means that, in order to determine whether or not a previous representation is hearsay, it is necessary to identify the use that is made being made of it. It is also necessary to identify what it is that the person who made the representation can be reasonably supposed to have intended to assert. Thus, in Lee v The Queen, the High Court commented that: The [hearsay] rule’s operation requires consideration first of why it is sought to lead evidence of something said or done out of court (a previous representation). What is it that that ‘previous representation’ is led to prove? In particular, is it sought to lead it to prove the existence of a fact that the person who made the representation intended to assert by it? The fact that the statement or the conduct concerned might unintendedly convey some assertion is not to the point. The inquiry is about what the person who made the representation intended to assert by it.14

14 Lee v The Queen [1998] HCA 60, [22]; (1998) 195 CLR 594, 600; (discussing the operation of s 59(1) prior to the 2008 amendments).

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The requirement of intention is discussed further below. In the meantime, here are some uncontroversial examples of previous representations, which are relevant for a hearsay purpose; they are being used to prove the existence of a fact that it can reasonably be supposed the person making the representation intended to assert:15 •

•

•

D is the defendant in a sexual assault trial. W is a witness in the proceedings, who made a statement to the police that, X told W that X had seen D leave a nightclub with the victim shortly before the assault is alleged to have occurred. The statement by X to W is ‘a previous representation made by a person’, and if it is used to prove that D did indeed leave the nightclub with the victim shortly before the assault, then it is being used ‘to prove the existence of a fact’ that X ‘intended to assert by the representation’. Unless an exception to the hearsay rule applies, evidence of what X told W cannot be given at trial. W is a witness in proceedings, in which there is an issue about whether the handbrake on W’s car was defective. P has told W that the handbrake on W’s car did not work. Unless an exception to the hearsay rule applies, evidence of that statement cannot be given by P, W, or anyone else to prove that the handbrake was defective. W had bought a DVD player and written down its serial number on a document. Unless an exception to the hearsay rule applies, the document is inadmissible to prove that a DVD player later found in D’s possession was the DVD player bought by W. This is because the serial number on the document is a previous representation to the effect that, the DVD player bought by W contained the serial number in question, and this representation is being used to prove that fact; from which it can be inferred that the DVD player later found in D’s possession— which has the same serial number—is the same player.

5.2.6 Non-hearsay uses of a previous representation However, not every use of a ‘previous representation’ infringes the hearsay rule. If the previous representation is not being used to prove the existence of a fact, that the person making it can reasonably be supposed to have intended to assert, then it is not hearsay. When a previous representation is used for a purpose that does not infringe the hearsay rule, we talk of it being used for a non-hearsay purpose, or having a non-hearsay use, or being ‘original’ evidence. The case of Subramaniam illustrates the difference between hearsay and original evidence.16 During the Malayan Emergency in the 1950s, the police found the defendant wearing an ammunition belt with twenty rounds of ammunition. At the time, merely possessing ammunition was a capital offence. However, Malaysia’s Penal Code provided a defence if the offender ‘is compelled to do [the offence] by threats’ (emphasis added). Accordingly, at his trial, the defendant testified that he had been forced to live with armed terrorists who made him wear the belt. However, when he began to describe what the terrorists said to him, causing him to wear the belt, the trial judge cut him off, saying that ‘hearsay evidence is not admissible, and all the conversation with bandits is not admissible unless they are called’. In other words, the judge stopped the defendant from telling the court about the threats he had received, because they happened outside the courtroom! As a result, Subramaniam was unable to establish the defence of duress, and was sentenced to death. Fortunately, on appeal, the Privy Council held that the trial judge had got it wrong. The issue was the effect of such threats on the accused, not whether the threats would truly have been carried out. This meant that the object of the evidence was not to establish the truth of whatever

15 The examples are adapted from the examples contained in the notes to s 59. 16 Subramaniam v Public Prosecutor [1956] 1 WLR 965.

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‘representations’ the terrorists may have made, but merely to prove that they had been made, and that they had a particular effect on the accused. The cogency of the evidence for this purpose depended entirely on the credibility of the accused, and not on the credibility of the terrorists. Here are some further examples of cases where the evidence of a ‘previous representation’ is relevant for a non-hearsay purpose (and is therefore not hearsay): •

•

•

•

• •

•

Cases where the act of speaking the words is itself legally significant: For example, the formation of a contract through oral negotiations, the making of a defamatory comment, or the uttering of a threat to kill. In the first example, the words spoken can be led to prove the terms of the alleged contract. In the second and third examples, the speaking of the defamatory or threatening words may constitute, respectively, an actionable tort or a criminal offence. Evidence, in a case where a will is being challenged on insanity grounds, to the effect that the testator frequently stated: ‘I am Genghis Khan’: Such a previous representation is obviously not being adduced to prove that the testator was Genghis Khan, but as the basis for an inference that the testator believed himself to be Genghis Khan—from which it can be inferred that he was insane. Evidence of a representation that is said to have been a lie or a false account, from which a consciousness of guilt can be inferred:17 In such cases, the representation is clearly not being used to prove the existence of a fact, that it can reasonably be supposed that the person intended to assert. Evidence of a representation put to a person, where the person’s response or reaction to that representation is relevant; for example, where a criminal defendant has been confronted with an accusation of guilt: As Windeyer J said in Woon: ‘It is not that what is said to the accused can of itself be evidence against him. But his response or reaction may be; and that is why what is said to him may be admitted.’18 Evidence that a witness has made a prior inconsistent or prior consistent statement when used as a basis for impeaching, bolstering, or rehabilitating their credibility as a witness.19 Evidence led to provide the basis for an expert’s opinion; for example, a doctor’s recitation of a history given to the doctor by a patient:20 The history is relevant to explain why the doctor formed his opinion. This is not a hearsay purpose (whereas using the history to prove that the events contained in that history had really occurred would be a hearsay purpose). In a case where the issue is one of identity:21 – If the witness is able to identify the accused as the offender, then evidence of an earlier consistent act of identification given by the witness will not be hearsay, and neither will evidence given by a police officer who was present at the time, confirming the act of identification. This is because the witness: is testifying to the state of his recollection on a prior occasion. It is not evidence of a prior representation. It is direct evidence of an event of recollection … Where evidence of this kind is given, it is, of course, often unnecessary for the accompanying police officer to give evidence of the occasion of identification. Where the officer does give this evidence, it seems to me, again, that it is not hearsay

17 Kamleh v The Queen [2005] HCA 2, [17]–[18]; (2005) 213 ALR 97, 101 (Gleeson CJ and McHugh J); c.f. the different approach taken to lies in Part 3.4, discussed in Chapter 8: Admissions. 18 Woon v The Queen [1964] HCA 23, [3]; (1964) 109 CLR 529, 541 (Windeyer J). See, for example, Parkes v The Queen [1976] 3 All ER 380. In the case of the accused, the evidence would now be subject to the rules in Part 3.4. See Chapter 8: Admissions, [8.1.2]. 19 See Chapter 11: Credibility. 20 See R v Welsh (1996) 90 A Crim R 364, 367. 21 See also the discussion of this issue in Chapter 13: Identification, [13.1.1].

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but, rather, direct evidence of an occasion of identification otherwise the subject of direct evidence by the identifying witness and tendered simply to confirm the latter’s account of events. The evidence of the officer is, therefore, direct evidence of those circumstances and the fact of identification. It is not tendered to prove … the truth of the assertion by the identifying witness that the person whose photograph was selected was indeed the assailant. 22

•

– If the witness does not confirm his or her earlier act of identification, then evidence of that act of identification given by someone such as a police officer will be hearsay. Although, it may be admissible under an exception to the hearsay rule, such as that contained in section 66(2); or, if it is admissible as a prior inconsistent statement relevant to the credibility of the witness, it may also be admissible for its truth pursuant to section 60.23 In a case where the state of a person’s knowledge is in issue, evidence of what the person said or was told. This would include cases in which the question was whether, and if so when, the person was aware of a particular risk. It would also include cases of ‘esoteric knowledge’, where the fact that a person knows something at a particular point in time, provides the basis for an inference about how they may have come to have that knowledge. In R v Matthews, for example, the accused was charged with the rape and murder of his estranged wife.24 His diary entry for the day after the murder read: ‘Liz dead, 27 years five months nine days’. He admitted to the police that this might actually have been written on the night of the murder. The diary entry was not being used to prove that Liz was dead, but that the accused knew she was dead, prior to her murder becoming public knowledge. If the information was not in the public domain, then the accused must have gained his knowledge through some other means; the most obvious explanation being that he knew the deceased was dead, because he had murdered her.25

In some cases, the line between using a previous representation to prove the existence of a fact that it can reasonably be supposed the person intended to assert by the representation, and using a previous representation for some other non-hearsay purpose, can be a very fine one. For example, in R v Lodhi, the Crown case was that the accused may have assisted alleged terrorist Willie Brigitte upon his arrival in Australia and that, when Brigitte had obtained accommodation, the accused visited him at those premises. A witness gave evidence about an occasion when two men came to visit Brigitte. The second visitor told the witness that he was ‘in architecture’ and ‘working in the city somewhere’, and that he was from Sialkot in the State of Punjab, close to Lahore. The accused was an architect who worked in the city, and was from Sialkot. The trial judge held that the evidence could be used to prove that the accused was the second visitor, without infringing the hearsay rule, because: the path of reasoning does not travel from the truth of the statements to the conclusion suggested by the Crown. It is the making of the statements by the visitor that moves the inferential process forward or at least may tend to do so. This is because the making of the statements—the words that were spoken—have

22 DPP v Nicholls [2001] NSWSC 523; (2001) 123 A Crim R 66, [27] (Adams J); and R v Barbaro and Rovere [2000] NSWCCA 192, [43]; (2000) 112 A Crim R 551, 559. 23 See R v Barbaro and Rovere [2000] NSWCCA 192 at [29]–[34]; (2000) 112 A Crim R 551, 557–8; and DPP v Nicholls [2001] NSWSC 523, [25]; (2001) 123 A Crim R 66, 76. 24 R v Matthews (1990) 58 SASR 19; again this evidence may also be subject to the rules in Part 3.4, discussed in Chapter 8:Admissions. 25 If, instead of being read as an assertion of the fact of her death, the accused’s diary entry is read as an assertion of his knowledge of her death, then it would in any event fall within the scope of s 66A, discussed below at [5.3] and [5.4.3].

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a possible relevance as identification material, in the same or at least a similar way that a physical feature (such as a tattoo, distinctive voice or unusual language) may be used for this purpose.26

In other words, the fact that the visitor said he was an architect from Sialkot has a relevance in identifying him as the accused, which does not depend on his statements to that effect being used to prove that he was in fact an architect from Sialkot. This is a very fine distinction indeed. One can imagine a case, where the fact that a person said particular things, could be used to identify them independently of the ‘truth of the statements’. For example, the visitor might have spoken obsessively about a particular football team, in circumstances where it can be proved that the accused was similarly obsessed. However, on the actual facts of Lodhi, it is difficult to see how the fact that the visitor said he was an architect from Sialkot was relevant, unless it was being used to prove that the visitor, like the accused, was indeed an architect from Sialkot. This becomes even more apparent when one considers an item of evidence that the judge would apparently have analysed in the same way, but that the prosecution did not press; namely, evidence that the second visitor also told the witness that his name, like the accused’s, was ‘Faheem’.27 If the visitor’s first name would be admissible for such a purpose, then why not his whole name? And, if a representation by the visitor that his name was ‘Faheem Lodhi’, would not be used to prove the existence of a fact that he can reasonably be supposed to have intended to assert—namely that he was Faheem Lodhi— then it is difficult to see what it would be used for.

5.2.7 The requirement of intention Despite the inclusiveness of the definition of ‘representation’, the use of the word ‘intended’—in the definition of hearsay—was meant to narrow the scope of the hearsay rule by comparison with the common law. At common law, the hearsay rule extended to unintentional or ‘implied’ assertions; that is, to facts the existence of which it can be assumed that the maker of a ‘representation’ believed or assumed, rather than actually asserted.28 For example, the common law hearsay rule applies to both of the following: • •

to an assertive statement such as, ‘this is my father’, when used to identify the person so described; and to a non-assertive statement used for the same purpose, such as ‘Hello Daddy’, from which it can be inferred that the speaker believes that the person to whom they are addressing is their father.29

The Australian Law Reform Commission’s intention in recommending section 59 was to exclude the latter kind of statement from the scope of the hearsay rule, while leaving the former within it. Thus, section 59(1) was drafted to resolve: the issue of whether the proposed rules should apply to implied assertions as well as express assertions, by recommending that a distinction be drawn between intended and unintended implied assertions, with the latter outside any hearsay rule.30

26 R v Lodhi [2006] NSWSC 648, [55]; (2006) 163 A Crim R 526, 537. 27 See R v Lodhi [2006] NSWSC 648, [51] and [56]; (2006) 163 A Crim R 526, 536–7; however, it also seems from the trial judge’s comments that, although the evidence may have been admissible for that purpose, it would have been excluded in the exercise of the discretions in ss 135 and 137. 28 See, inter alia, Wright v Doe d Tatham (1837) 7 Ad & El 313, 112 ER 488; and Palmer, ‘Hearsay: A Definition that Works’ (1995) 14 U Tas LR 29. 29 Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283. 30 Australian Law Reform Commission, Evidence (Interim), Report No 26 (1985) Volume 1, [684].

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The courts’ interpretation of section 59(1), however, threatened to reintroduce much of the complexity of the common law, and to bring implied assertions back within the scope of the hearsay rule. In R v Hannes, in particular, the accused was charged with inter alia insider trading, based on a trade in which a person identifying himself as ‘M. Booth’, instructed brokers to acquire options to purchase shares in TNT Limited at a strike price of $2; other related transactions were carried out in the name of ‘Mark Booth’. After the options were purchased, an announcement was made that TNT would be taken over at a price of $2.45 per share. This announcement resulted in a substantial increase in the price of the options, and resulted in the contracts bought in the name of ‘M. Booth’ returning a profit of over $2 million. The accused was an executive director of Macquarie Corporate Finance, which had advised TNT. The key issues in the insider trading charge were whether or not the accused had access to, and made use of, information obtained at Macquarie Corporate Finance with respect to the prospect of a TNT takeover. This question largely depended on whether it was the accused that had purchased the TNT options in the name of ‘M. Booth’. In other words, the prosecution case was that the accused had used the name of ‘M. Booth’ as a cover for buying the options himself. The defence was that some of the transactions had been carried out by him in the name of his sister, ‘Mignon Booth’, but that the trades with respect to which the charges were laid had actually been carried out by an English friend called ‘Mark’, with whom the accused had entered into a share trading syndicate; and that ‘Mark’ had done so without the knowledge or consent of the accused, and without the benefit of any inside information received from the accused. The evidence in question was found in the accused’s notebook (referred to in the trial and on appeal as MFI 95). When subjected to electrostatic analysis, indentations in the notebook revealed, what appeared to be, a list of pros and cons as to whether the accused should attend an interview at the Australian Securities Commission. The actual list was never found, and there was no evidence as to who removed it. The list, as reconstructed from the written impressions found in the notebook, contained inter alia the following statements: •

Mark not guilty of insider trading but may have committed other offences – minor tax avoidance? – share trading if he has used Mignon’s name • He may not be telling the truth (saw something on visit to MBL?) but contra agreed to give monies back … • Only way to establish that I am innocent • Have done nothing wrong • Am confident I have full story after my conversations with Mark in London • But must take Mark with me to ASC otherwise – will not be believed – how can you prove a negative i.e. that I did – not give him any insider information – not buy options – not open Ords CMT etc VITAL MARK BE THERE!!!

There was no doubt that a statement such as, ‘I did not give him any insider information’, would be hearsay if offered to prove that the accused did not give ‘Mark’ any insider information; this was clearly a fact that the person who made the representation intended to assert. However, the defence argued that the statements were relevant to prove, among other things, that the accused did in fact have a syndicate partner using the name ‘Mark’. On the face of it, the use of the evidence for this purpose would appear to fall outside the scope of the rule in section 59(1), because the person

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who made the representations contained in MFI 95 does not seem to have intended to assert the existence of ‘Mark’, or his role in the syndicate. Rather, the existence of Mark and his role in the syndicate is implicit in the representations, and is something assumed, but not asserted by the person who made the representations. Similarly, the statement—‘Am confident I have full story after my conversations with Mark in London’—is an assertion of confidence, not an assertion that such a conversation took place. Nevertheless, Spigelman CJ said that: It is arguable that the scope of the word ‘intended’ in s 59(1) goes beyond the specific fact subjectively adverted to by the author as being asserted by the words used. It may encompass any fact which is a necessary assumption underlying the fact that the assertor does subjectively advert to.31

The justification for this was that, ‘an implied assertion of a fact necessarily assumed in an intended express assertion may be said to be “contained” within that intention. For much the same reasons, it is often said that a person intends the natural consequences of his or her acts’.32 Studdert J held that the evidence was hearsay because: Prima facie, the appellant intended to write what appears in mfi:95 at the time he wrote it. Absent evidence to the contrary, it could not be inferred that the appellant did not intend to assert by what he wrote the very matters which the appellant contends emerged from a reading of the document.33

On this basis, the impressions in Hannes would be taken as intending to assert the existence of ‘Mark’, his involvement in the syndicate, and the fact that the accused had a conversation with him about the matter in London. The effect of such an approach would be to reinstate ‘implied assertions’ within the scope of the hearsay rule. With the aim of preventing this, the Australian Law Reform Commission recommended the reform of section 59 to provide that: in determining whether a person intended to assert the existence of facts contained in a previous representation, the test to be applied should be based on what a person in the position of the maker of the representation can reasonably be supposed to have intended; and the court may take into account the circumstances in which the representation was made.34

Notwithstanding the stated aims of the amendment, the reasons why it would prevent a court from taking the approach taken in Hannes are not immediately obvious. In any event, the effect of the amendment is to change the test of intention in section 59(1) from a subjective test to a more objective test. In addition to the insertion of some additional words in section 59(1), a new subsection (2A) was also added, providing that: For the purposes of determining under subsection (1) whether it can reasonably be supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made.

These amendments have the effect of shifting attention from the actual subjective intentions and thought processes of the person making the representation, to a consideration of the representation itself, and the circumstances in which it was made. The court is required to consider the following question: Looking at the representation and the circumstances in which it was made, what can it reasonably be supposed that the person making the representation intended to assert? The ALRC’s aims in drafting the amendment to section 59 might arguably have been better achieved by adopted the wording of the equivalent English provision, which is contained in 31 32 33 34

R v Hannes [2000] NSWCCA 503, [361]; (2000) 158 FLR 359, 420. R v Hannes [2000] NSWCCA 503, [357]; (2000) 158 FLR 359, 419. R v Hannes [2000] NSWCCA 503, [477]; (2000) 158 FLR 359, 441. Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005) Recommendation 7–1.

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sections  114 and 115 of the Criminal Justice Act 2003. Under those sections, the hearsay rule only applies to statements where the purpose (or one of the purposes) of the person making the statement appears to the court to have been to cause another person to believe the matter stated, or to cause another person to act on the basis that the matter was as stated. Applying these provisions in a series of appeals, heard at the same time, the Court of Appeal held that:35 •

•

•

in two cases, where the defendant was charged with supplying drugs, the receipt by the defendant of a large number of text messages ordering or requesting drugs, or commenting on past supplies of drugs, was not hearsay; and was thus admissible to prove that the defendant was a supplier of drugs; in a case, where the two defendants were charged with robbing two girls at gunpoint, the receipt by one of them, on the morning of the alleged robbery, of a text message that read ‘Need dat gun today so can sell it and give you lot da tenner back. Does faws still want it?’ was not hearsay; and was therefore admissible to prove that the defendants were in possession of a gun at the relevant time; and in a case, where the defendant was charged with two counts of rape against his girlfriend, and the defence was one of consent, the sending by him of some 47 text messages that, on the Crown’s case, amounted to confessions to, and apologies for, the rape, were not hearsay (but would have been admissible as admissions against interest even if they were).

In the authors’ view, the same results ought to be achieved under section 59; but in light of Hannes, those results cannot be said to be uncertain.

5.2.8 Establishing intention In light of the amended definition of hearsay in section 59(1), it can be suggested that the form, which the representation takes, will be a strong indicator of what the person making the representation can reasonably be supposed to have intended to assert. That is, generally, it will be hearsay to use a previous representation to prove that which, on its face, it asserts; however, it will not be hearsay to use a non-assertive statement or conduct, or to use an assertive representation to prove something other than that which it asserts. So, for example, the fact that people are heard to refer to the accused by a particular name would not be hearsay when used to prove that the accused went by that name;36 but the fact that one person introduced another person by that name—for example, saying something like ‘this is Pablo’—would be hearsay if used for the same purpose.37 The second is assertive in form; the first is not. However, form will not be conclusive, and it will always be open to a party to seek to persuade the court that the person making the representation can reasonably be supposed to have intended to assert something different from that which, on its face, the representation asserts; or to assert something, by means of a statement or conduct that does not, on its face, assert anything. A person making a sarcastic or ironic comment, for example, will often intend to assert the exact opposite of what their words, taken at face value, appear to be asserting; likewise, rhetorical questions are in effect intentional assertions, even though a question is clearly non-assertive in form. Similarly, in a case like Hannes, the prosecution could seek to show that the written impressions were in fact an

35 Twist and Ors v The Queen [2011] EWCA Crim 1143; [2011] All ER (D) 102 (May). 36 See United States v Weeks 919 F 2d 248 (5th Cir, 1990), 252; approvingly discussed in Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005) [7.31]. 37 See United States v Berrios 132 F 3d 834 (1st Cir, 1998), 838; approvingly discussed in Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005) [7.32].

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elaborate fabrication by means of which the accused can reasonably be supposed to have intended to assert the existence of Mark, and so forth.38 In light of this, it is suggested that the following examples, all held to be hearsay at common law, would not be hearsay under the uniform evidence legislation: •

•

• •

in a case where the issue was the sanity of a testator who had left his considerable estate to his steward, evidence of letters addressed to the testator that, because of their tone and content (rather than any explicit assertion to that effect), suggested that the writers regarded the testator as sane;39 in a case where a ship has sunk at sea and a question has arisen as to its seaworthiness, evidence that before the ship set sail, the captain carefully inspected it and then embarked on it with his family, from which it could be inferred that the captain believed the ship to be seaworthy, and that it was seaworthy;40 a woman saying ‘my mother is sick’, when used to prove that the older woman with the speaker was the speaker’s mother;41 and numerous people attempting to buy illegal drugs from the accused, when used to prove that the accused had illegal drugs for sale.42

5.3 CONTEMPORANEOUS MENTAL AND PHYSICAL STATES 5.3.1 Inferring mental and physical states It is settled that, in the myriad legal contexts where a person’s mental or bodily state at a particular time is relevant, the tribunal of fact is permitted to infer that fact from the person’s acts at that time. This is the case, whether the act consists of words (such as ‘I hate you’), conduct (such as shaking a fist), or bodily cues (such as narrowing the eyes). A person’s out-of-court acts can be used as evidence of a contemporaneous mental state, which is an element of a cause of action (for example, mens rea in criminal proceedings), or is otherwise relevant to a fact in issue (such as motive, temperament, intoxication or fitness). Under the uniform evidence legislation, there is a specific exception to the hearsay rule permitting this, with section 66A providing that: The hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about the person’s health, feelings, sensations, intention, knowledge or state of mind.43

38 39 40 41 42

See Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005), [7.48]. Wright v Doe d Tatham (1837) 7 Ad & El 313; 112 ER 488. An example used by Baron Parke in Wright v Doe d Tatham (1837) 7 Ad & El 313; 112 ER 488. R v Benz [1989] HCA 64; (1989) 168 CLR 110. R v Kearley [1992] 2 AC 228; but c.f. R v Firman (1989) 52 SASR 391; Davidson v Quirke (1923) 42 NZLR 552; and McGregor v Stokes [1952] VLR 347. 43 Section 66A was, until the 2008 amendments, s 72; the significance of the change is that it moved the exception to Division 2—‘First hand’ hearsay from Division 3—Other exceptions to the hearsay rule, with the intention of restricting the exception to first-hand hearsay: see Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005) [8.171]–[8.174]. First-hand hearsay is hearsay where the ‘previous representation is made by a person who had personal knowledge of an asserted fact’: s 62(1). For the purposes of s 66A, s 62(3) provides that ‘a person has personal knowledge of the asserted fact if it is a fact about the person’s health, feelings, sensations, intention, knowledge or state of mind at the time the representation … was made’.

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The hearsay rule does not, therefore, prevent a person’s physical or mental state being inferred from their statements and conduct, subject to two limitations. First, the exception only applies to contemporaneous representations about the person’s health, feelings, sensations, intention, knowledge or state of mind. Thus, a person’s statement that ‘I’ve been confused for years’ may be used as a basis for inferring that the person was confused when making the statement, but not to infer that the person was confused one or more years earlier. Second, the exception only extends to inferences about the state of a person’s body or mind. For example, the hearsay rule still bars using a person’s representations as the basis for drawing an inference about what that person was doing at the time (for example, relying on a person’s scream that, ‘I’m on the phone’, as a basis for inferring that the person was using a telephone). This means that—subject to the requirement of relevance—a person’s knowledge, belief, fear, intention and other states of mind and emotion can all be established by what they said or did outside court. There is, therefore, no hearsay problem in inferring from the fact that a person said ‘I am afraid’ that they were indeed in a state of fear; or, in inferring from the fact that a person said ‘I intend to go shopping this afternoon’, that they did so intend. Similarly, from the fact that the accused in a murder trial had told the deceased ‘I hate you’, the tribunal of fact would be entitled to infer that the accused did indeed hate the deceased; a fact that would obviously be relevant to establish motive.

5.3.2 Inferences from physical and mental states Once the physical or mental state has been inferred, it may be possible to use the state as a foundation for a further inference, again without infringing the hearsay rule. In particular, a person’s state of mind will often provide either an explanation for their actions, or some guidance as to their likely future conduct. In Hughes v National Trustees, Executors and Agency Co of Australasia Ltd, for example, the High Court held that the reasons given by an elderly woman in changing her will so as to disinherit her son were admissible to prove those reasons, but could not be used to prove the actual facts she alleged against him, namely that he had driven her from her home on the family farm. As Barwick CJ commented: Evidence of the reasons given by a testator or testatrix for making or not making a provision by will are, in my opinion, admissible as evidence of those reasons. Such statements are not evidence of the facts they assert: they provide evidence only of the subjective attitude or beliefs of the testator or testatrix.44

In Hughes, the actions of the person making the previous representations (the testatrix) were known, and the uncertainty was about the reasons for those actions. In other cases, however, it is the actions of the person making the previous representations that are unknown, and their mental or physical state is used as a basis for drawing inferences about what those actions might have been. In Baker v The Queen, for example, the accused was charged with the rape and murder of his estranged wife. She was found dead on the bedroom floor of her flat, having died of gunshot wounds to the head. A rifle fitted with a silencer, and bearing the accused’s palm print, was also found on the floor. The accused was found on the bed, with a bullet wound to the head. There were cords attached to the bedposts. According to the accused, on the night before the shootings, the deceased had telephoned him and asked him to come around in the morning to shoot some stray cats. He had arrived at the flat, at around 7 a.m., armed with his rifle. The deceased had invited him

44 Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2, [6]; (1979) 143 CLR 134, 137. Under the legislation, however, s 60 (which is discussed below in [5.4]) might render the statements admissible for the hearsay purpose once they had been admitted for the non-hearsay purpose.

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to have intercourse with her, and had asked to be tied to the bed. After intercourse he had untied her, but she had then picked up the rifle and shot him, and then herself. The prosecution wished to lead evidence of statements made by the deceased during the four-week period leading up to her death. These included statements to the effect that she was considering taking out an intervention order against the accused; that he was spying on her; that he had threatened her; and, that she was afraid of him, because she did not know what he was capable of doing. Used to prove that the accused had in fact been spying on the deceased, or that he had threatened her, the evidence would clearly have been hearsay. But the statements were also relevant on the basis that a woman who is afraid of her estranged husband is unlikely to have behaved in the manner he claimed. This was a non-hearsay purpose, as it depends on the proposition that the mere fact that she was afraid of the accused (regardless of whether or not her fear was wellfounded) is inconsistent with the story he has put forward, and therefore renders it less probable.45 Her state of mind thus provided the foundation for an inference about how she was likely to have behaved in a particular situation. Another example is provided by the case of R v Ahola (No 2) [2013] NSWSC 699, where the accused was charged with murdering a woman with whom he had recently started a romantic relationship, and the prosecution wished to lead evidence of statements made by the deceased to the effect that the accused was a millionaire, owned a number of properties in the Snowy Mountains, and that perhaps they would live in Finland. In fact, the accused was impecunious and a heavy drinker, and had returned to the home he shared with the deceased on the night of her death with a cask of cheap wine. The prosecution theory was that this may have prompted the deceased to query the cheapness of the alcohol, which may have caused the accused to reveal his true status, which may have led to a drunken argument, which may have led to fatal violence. The court accepted that the evidence was relevant, and admissible under section 66A to prove the deceased’s state of mind—that is, her belief that the accused was a millionaire—but excluded the evidence on the basis that it was more prejudicial than probative. Intention is another commonly relied on state of mind. If a person says that they intend to do something, this provides some basis for an inference about how they may have subsequently behaved; and in particular, for an inference that they may have acted in accordance with that intention. In R v Hendrie, for example, the accused was a home renovator charged with the rape and murder of a woman with whom he was on familiar terms. Her body was found in the bedroom of the house, which was the only room in which there was any evidence of a struggle. The deceased had discussed with her husband, her intention to have a window in their bedroom converted into a door. This intention provided an explanation—consistent with the perpetrator being the accused—for why the deceased might have gone into her bedroom with the perpetrator without a struggle, and why it was that the bedroom window curtains and fittings might have been taken down.46 Similarly, in Walton v The Queen, the deceased had told several witnesses of her intention to travel to the Town Centre, in order to meet the accused on the night on which she was murdered. A majority of the High Court held that her ‘intention at that time was relevant because it might be inferred that she acted in accordance with her intention’.47 It might be so inferred, on the basis that the existence of an intention to do an act, makes it more likely that the intended act was done. A particular complexity in Walton, however, was the fact that the deceased’s statements related not only to her future actions, but also to the future actions of the accused. Mason CJ approvingly 45 Baker v The Queen [1989] 1 NZLR 738; see also R v Matthews (1990) 58 SASR 19. 46 R v Hendrie (1985) 37 SASR 581. 47 (1989) 166 CLR 283, 300; [1989] HCA 9, [17] (Wilson, Dawson and Toohey JJ).

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quoted a passage from the dissenting judgment of Traynor J in the case of People v Alcalde, to the effect that ‘[a] declaration as to what one person intended to do, however, cannot safely be accepted as evidence of what another probably did’.48 In Walton, however, there was independent evidence from another witness to the effect that the accused had told her that he had arranged to meet the deceased at the Town Centre at 7.00 p.m. on the night in question, and, according to Mason CJ: It is the conjunction of this independent evidence of the making of the arrangement between the [accused] and the deceased and the evidence of the deceased’s intention to travel to the Town Centre to meet the [accused] that provides a foundation for the inference that they went to the Town Centre and met there.49

Walton was, however, a common law case, and it is strongly arguable that under the uniform evidence legislation, the deceased’s statements about her intentions could also be used as evidence of what the accused did without infringing the hearsay rule. This is because the deceased does not appear to have intended to assert that the accused was planning or had arranged to meet her. This is merely implicit in what she says. If the argument is correct, however, and evidence in a case such as Walton is admissible to prove another person’s action, then it is quite possible that a court would instead protect the accused from any possible unfairness by exercising the discretion in section 136 to limit the use that the tribunal of fact could make of the evidence.

5.3.3 Limitations on section 66A One difficulty with section 66A is that it simply states that the ‘hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about the person’s health, feelings, sensations, intention, knowledge or state of mind’, without placing any limitations on what such a previous representation can be used to prove. There is nothing in the terms of section 66A, for example, that would prevent a party from using a person’s contemporaneous representation to the effect that they had witnessed an event (for example, ‘the car went through a red light’), as a basis for inferring a contemporaneous belief that a witnessed event happened (a belief being a state of mind), and then inferring the accuracy of that belief (that the car had gone through a red light). Such an approach would obviously allow, however, the circumvention of the hearsay rule. While acknowledging such a possibility, the Australian Law Reform Commission has noted that ‘[t]o date the courts have not interpreted [section 66A] so broadly. The potential absurdity of construing [section 66A] this way gives reason for not adopting a construction of that breadth’.50 A further issue concerns whether a physical or mental state can be used as the basis for inferring that something happened to cause that state; or, as the Australian Law Reform Commission put it, ‘does [section 66A] allow the representation to be used to prove the occurrence of an event that created that state of mind’?51 In Baker, for example, could the fact that the deceased was afraid of the accused be used as the basis for inferring that he had done something to make her afraid of him, such as spying on her, or threatening her? In its 10-year review of the uniform evidence legislation, the Australian Law Reform Commission raised this issue, but simply noted that where 48 [1989] HCA 9; (1989) 166 CLR 283, 291 (Mason CJ), quoting People v Alcalde 148 P 2d 627, 633 (1944). See also Macrae v The Queen [1995] VSC 108, [31]–[32]; (1995) 80 A Crim R 380, 387. 49 [1989] HCA 9; (1989) 166 CLR 283, 291 (Mason CJ); see also [17] and 300 (Wilson, Dawson and Toohey JJ); and Kamleh v The Queen [2005 HCA 2; (2005) 213 ALR 97. 50 Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005) [8.163]. 51 Ibid., [8.165].

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evidence of a person’s physical or mental state ‘is sought to be used for another purpose, it must be relevant for that purpose’, and that the legislation appears ‘to be operating satisfactorily in this respect’.52 While unaware of any case law to this effect, the authors’ view is that the fact that a person has a particular physical or mental state will often make it more probable that something has occurred, which would give rise to such a state. In Baker again, the authors would contend that, the fact that the deceased was afraid of the accused, does make it more likely that he had done something to make her afraid, such as spying on her, or threatening her. The requirement of relevance is therefore likely to be satisfied. However, the authors would also suggest that such a use of the evidence goes far beyond the common law rule on which section 66A was based, and has the potential to give rise to the very ‘absurdity’ identified by the Australian Law Reform Commission earlier in its report. This is because ‘belief ’ is also a state of mind, and the fact that a person has formed a belief is surely relevant to prove that something has occurred, which has given rise to that belief. The fact that the pedestrian, in our example, formed the belief that the light was red when the car went through it, appears to render more probable ‘the occurrence of an event that created that state of mind’, such as that the light was red when the car went through. For this reason, the authors submit that it should not be possible to rely on section 66A as the basis for inferring, from the fact that a person has a particular physical or mental state, that something has occurred to cause that state. In short, while a person’s physical or mental state can be used as the basis for inferring their likely future conduct, it cannot be used as a basis for inferring the occurrence of some past (or present) event, which has given rise to that state.

5.4 EVIDENCE RELEVANT FOR A NON-HEARSAY PURPOSE An out-of-court statement may sometimes be relevant for both a hearsay and a non-hearsay purpose. At common law, in such cases, the admissibility of the evidence for each such purpose is determined independently, with the consequence that an item of evidence may be admissible for the non-hearsay purpose, and inadmissible for the hearsay purpose. This means that the judge will have to give the jury a direction explaining the distinction between the use they are permitted to make of the evidence, and the use they are not permitted to make. For example, where a witness’s past statement is admitted as relevant to that witness’s credibility, the jury will have to be told that it can only rely on that statement as a ground for assessing the witness’s in-court testimony, and cannot rely on it as a basis for inferring that events occurred in the way the witness described them in the past.

5.4.1 Section 60(1) The position is different under the uniform evidence legislation with section 60(1) providing that: The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact.

52 Ibid., [8.166]–[8.167].

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In other words, if evidence of a previous representation is admitted for a non-hearsay purpose, then it also becomes admissible for the hearsay purpose. One of the main justifications for this change to the common law was: the extreme difficulty, if not impossibility, of making the required distinction between use of the evidence for the hearsay purpose and for the non-hearsay purpose.53

The effect of section 60(1), then, is that evidence of a prior consistent statement or prior inconsistent statement, which is admitted pursuant to the credibility rules discussed in Chapter 11: Credibility, can then be used as evidence of the facts stated in it. Importantly, section 60(1) only comes into operation, once the evidence has already been admitted for the non-hearsay purpose; it has no bearing on whether it can be admitted for that purpose. The operation of section 60 meant that, in the case of Raimondi v The Queen, it was a misdirection for the trial judge to tell the jury that prior inconsistent statements by a sexual assault complainant ‘is not evidence that supports—that it did happen to him’. The court went on to observe that: where s 60 is enlivened in respect of evidence of a previous representation, it will not usually be obligatory for the judge to direct the jury that the evidence may be used as proof of the facts asserted in the representation. In the absence of a direction that the evidence cannot be so used, the jury will assume that the facts asserted were evidence of the truth. However it remains preferable that a trial judge direct the jury that the factual assertions contained within representations admitted pursuant to s 60 may be used as evidence of the facts asserted but it is not ordinarily obligatory that the judge so direct the jury.54

Another common context for section 60 to operate is in relation to the factual basis of an expert’s opinion. For example, a doctor may give evidence of the medical history given to him or her by a patient, upon which the doctor has relied in forming his or her opinion. It is well established that it is not hearsay for the doctor to give evidence of the medical history to show the basis of the opinion; although, it is hearsay to use the doctor’s evidence of the history to actually prove that history.55 Because the evidence of the history is admissible for the non-hearsay purpose of showing the basis of the doctor’s opinion, the effect of section 60(1) is to render it also admissible to prove the history itself.56 Section 60(1) operates with respect to both facts that form part of the expert’s specialised knowledge and expertise, and facts that are specific to the case. An expert opinion can be based on information coming from a wide variety of sources, with the Australian Law Reform Commission identifying the following examples:57 • • •

•

statements to a medical expert by a person injured, about the circumstances in which the injury was suffered, and the subsequent progress of those injuries, and past and present symptoms; information gathered by an expert valuer from a variety of people, about the nature and quality of properties, and the prices at which they were sold; information gathered by accountants and auditors (including financial records and other sources, including people), for the purpose of expressing opinions about the financial position or the management of companies; knowledge acquired by experts from reading the work of other experts, and from discussion with them;

53 Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005) [769], referring to Australian Law Reform Commission, Evidence (Interim), Report No 26 (2005) Volume 1, [334]. 54 Raimondi v The Queen [2013] VSCA 194, [25]. 55 See Ramsay v Watson [1961] HCA 65, [7]; (1961) 108 CLR 642, 649. 56 See, for example, Welsh v The Queen 13 NSWCCA 674; (1996) 90 A Crim R 364. 57 See Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005) [7.74].

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• • • •

the reported data of fellow experts relied upon by such persons as scientists and technical experts in giving expert opinion evidence; factual material commonly relied upon in a particular industry, trade, or calling; information about the expert’s qualifications; and information received in the course of gaining experience upon which an expertise is said to be based, such as an experienced drug user identifying a drug.

At common law, there was an exception to the hearsay rule for information that formed part of the expert’s specialised knowledge, and that was not specific to the particular case.58 Section 60(1) effectively reinstates that exception. However, at common law, facts forming part of the basis of the expert’s opinion and that were specific to the case, had to be proved by direct, non-hearsay evidence. Under the uniform evidence legislation, by contrast, section 60(1) lifts the operation of the hearsay rule with respect to this category of evidence as well. Section 60(1) does not apply, however, with respect to mere ‘assumptions’ made by an expert.59 This is because section 60(1) only applies to representations, and an assumption of a fact does not amount to a representation. A representation is a statement, or conduct ‘which affirms, denies or describes a matter of fact’; by contrast, an ‘assumption does not affirm, deny or describe a matter of fact—it merely postulates it’.60

5.4.2 Second-hand hearsay and admissions Some of the material relied on by an expert, in forming their opinion, would fall within the definition of ‘first-hand’ hearsay contained in section 62(2); that is, the person who made the representation would have had personal knowledge of the asserted fact. Other parts of the material would not fall within that definition. For example, the medical history given by a patient to their doctor might comprise a mixture of things they had observed themselves (first-hand), and things they had been told by other treating doctors (second-hand). Moreover, a large part of the material relied on by the expert, as part of their general body of expert knowledge, would invariably comprise second-hand hearsay. The Australian Law Reform Commission’s intention in drafting section 60(1) was that it extend both to first-hand and second-hand hearsay. In Lee v The Queen, however, the High Court interpreted section 60 (the predecessor of section 60(1)) in a manner, which suggested that it only applied with respect to first-hand hearsay. 61 In response to this decision, a new sub-section (2) was inserted into section 60 in 2008. The new sub-section is in the following terms: 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)).

A further sub-section—sub-section (3)—was also inserted, in order to preserve the decision in Lee. In Lee, the accused was charged with assault, with intent to rob. At trial, a witness (Calin) gave evidence in chief of speaking to the accused shortly after the alleged assault, and asking him when he was going to pay some money that he owed him. He said that he could not recall any other conversation with the accused. The prosecution was then given leave to cross-examine Calin about an earlier prior inconsistent statement, in which he told the police that he had been told by Lee: ‘leave me alone, cause I’m running because I fired two shots … I did a job and the other guy was with me bailed out’. Under cross-examination, Calin admitted signing the statement to police, but 58 See, for example, PQ v Australian Red Cross Society [1992] 1 VR 19. 59 See Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005) [7.119]; Quick v Stoland Pty Ltd [1998] FCA 1200; (1998) 87 FCR 371, 382 (Finkelstein J); and Roach v Page (No 11) [2003] NSWSC 907, [74] (Sperling J). 60 Heydon, J, ‘Commentary on Justice Einstein’s Paper’ (2001) 5 The Judicial Review 123, 137. 61 Lee v The Queen [1998] HCA 60; (1998) 195 CLR 594.

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denied that the statements in the signed document were his. The police officer, who prepared the written statement, then gave evidence of taking the statement. Another officer deposed to Calin having made a similar oral statement to him. The written statement that Calin had signed was admitted in evidence, on the basis that it was relevant to his credibility. The issue then became whether section 60 had the effect of allowing the statement to be used as evidence of the truth of the things supposedly said by Lee; namely, that Lee had just fired two shots and had done a ‘job’. In other words, could Calin’s statement be used to prove the making of admissions by Lee? The High Court held that it could not, relying on reasoning that the Australian Law Reform Commission diplomatically described as ‘subtle’,62 but that appeared to turn on the distinction between first- and second-hand hearsay. As already noted, sub-section (2) was specifically inserted in order to overturn this view of Lee. The Australian Law Reform Commission concurred with the High Court, however, in the view that the law of evidence should exclude second-hand and more remote hearsay evidence of an admission.63 For this reason, it recommended the insertion of a new sub-section (3), which provides that section 60 ‘does not apply in a criminal proceeding to evidence of an admission’.64 The admissibility, for a hearsay purpose, of an admission that is admissible for a non-hearsay purpose, is thus entirely regulated by Part 3.4 (discussed in Chapter 8: Admissions) and not by the hearsay rules.

5.4.3 Interaction with other exceptions On its face, section 60(1) only operates when the evidence is being admitted for a non-hearsay purpose; it does not permit an item of evidence that is being admitted for a hearsay purpose, under one exception, to then be used for a different hearsay purpose. This means that an item of evidence admissible under section 66A to prove a state of mind, from which inferences could be drawn, could not then be used to prove an asserted fact. For example, a person may have been heard to say ‘I am broke’. This might be relevant to show that the person believed that they were broke, from which it might be inferred that they believed they needed money, which might have provided a motivation for them to act in a particular way (for example, to steal something). This line of reasoning appears to be permitted by section 66A. However, the statement would also be relevant to prove that the person was in fact broke, and hence needed money. This second use is clearly hearsay, but unless an exception applies to this use (for example, if the speaker was a party, it might be an admission), then the evidence would be admissible for the first use (the speaker believed they were broke), but not for the second (the speaker was broke), and any jury would have to be instructed accordingly. Given that one of the main purposes of section 60 is to avoid the need for complex limited-use directions, this seems an odd result.

5.4.4 Using the discretions to limit the use of evidence admissible pursuant to section 60 Section 60 has been described by one judge as having ‘extraordinarily wide ramifications’,65 and as ‘an unsatisfactory section that has the potential to cause significant unfairness to the party against whom the evidence is tendered’.66

62 63 64 65 66

Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005) [7.90]. Ibid., [7.144]. For an application of s 60(3), see Tasmania v B (No 2) [2012] TASSC 39, [15]. Welsh v The Queen (1996) 90 A Crim R 364, 368 (Hunt CJ at CL). Mulcahy v R [2012] ACTCA 3, [81].

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Because of its wide operation, it may lead to the admission into evidence of a previous representation for a hearsay purpose, in circumstances where there are concerns about both the reliability of the representation, and the capacity of the party against whom it is adduced to test this. In such circumstances, the court may rely on the discretions contained in Part 3.11 of the Act to either limit the use of the evidence, or to exclude it altogether. The discretion in section 136 to limit the use of evidence might be exercised, for example, when a party would otherwise be ‘disadvantaged’ by the consequences of the operation of section 6067 or, where ‘there is genuine dispute as to the relevant facts’;68 or, ‘where the hearsay involves “facts” that are in conflict or “facts” that are unreliable’.69 It is not a sufficient basis for the exercise of the discretions, however, if section 60 has had the effect that evidence, which would not have been admissible for a hearsay purpose at common law, is admissible for a hearsay purpose. The uniform evidence legislation was intended to change the law, and it is not acceptable to ‘attempt to constrain the legislative policy underlying the statute by reference to common law rules, and distinctions, which the legislature has discarded’.70

SUMMARY Under the uniform evidence legislation: • • •

• • •

•

67 68 69 70

the hearsay rule applies to previous representations made by a person; a previous representation is one made other than in the course of giving evidence in the proceeding, and includes representations made by words and conduct; evidence of a previous representation is hearsay, when it is used to prove the existence of a fact that it can reasonably be supposed the person intended to assert by the representation; hearsay evidence is inadmissible, unless an exception is available; there is an exception for contemporaneous representations made by a person about that person’s health, feelings, sensations, intention, knowledge or state of mind; such physical and mental states can be used as a basis for inferring how a person might have behaved, but not for inferring the occurrence of an event that may have given rise to the state; and evidence of a previous representation, which is admissible for a non-hearsay purpose, can also be used for a hearsay purpose.

Roach v Page (No 11) [2003] NSWSC 907, [74] (Sperling J). Quick v Stoland Pty Ltd [1998] FCA 1200; (1998) 87 FCR 371, 378 (Branson J). Quick v Stoland Pty Ltd [1998] FCA 1200; (1998) 87 FCR 371, 382 (Finkelstein J). Papakosmas v The Queen [1999] HCA 97, [39]; (1999) 196 CLR 297, 310 (Gleeson CJ and Hayne J).

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6

INTRODUCTION This is the second of two chapters dealing with the hearsay rule. Chapter 5: The Hearsay Rule dealt with the ‘definition’ of hearsay: • • •

the general ban on using evidence of a previous representation to infer what the maker intended to assert;1 the general permission to use such evidence to infer the maker’s contemporaneous physical or mental state;2 and the general permission to infer what the maker intended to assert if the evidence has another use that is permitted by all the rules of evidence.3

The latter two aspects of the definition of hearsay appear in the uniform evidence legislation as ‘exceptions’ to the hearsay rule. However, their purpose is really to flesh out the rule’s general operation. By contrast, this chapter deals with sections of the legislation that stop the general rule altogether if a specific set of conditions is established. The discussion in this chapter does not cover all the law on hearsay exceptions. Other exceptions to the hearsay rule addressed elsewhere in this book are: • • • •

the modern practices of allowing some witnesses to give evidence in pre-recorded form and police witnesses to read their notes: see Chapter 2: Witnesses; exceptions to the rule barring evidence of legal decision-making: see Chapter 9: Judgments and Convictions; the admissions exception (for previous representations by one party adduced by the other party): see Chapter 8: Admissions; and evidence of the defendant’s character: see Chapter 12: Character.

The chapter begins with a general consideration of the role of hearsay exceptions. It then turns to a detailed discussion of the exceptions in the uniform evidence legislation, beginning with the most important category: the ‘first-hand’ hearsay exceptions.

1 Section 59. 2 Section 66A. 3 Section 60.

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6.1 THE ROLE OF HEARSAY EXCEPTIONS Under the uniform evidence law, hearsay exceptions are simply a list of rules that lift the application of section 59(1). However, just as section 59(1)’s importance can scarcely be understood without understanding the purpose and history of the hearsay rule, so the exceptions to section 59(1) need to be understood as successors to a long tradition of hearsay exceptions. This part outlines the rationale of hearsay exceptions, the controversy about their development and the effect and limits of the uniform evidence law’s exceptions.

6.1.1 Rationale for hearsay exceptions By far the most influential general theory of the exceptions to the hearsay rule is that advanced by American evidence scholar John Henry Wigmore. Although Wigmore’s theory is in truth an attempt to provide a principled explanation for what was in fact a fairly unprincipled process, it is—as far as ex post facto rationalisations go—a useful one: The purpose and reason of the hearsay rule is the key to the exceptions to it. The theory of the hearsay rule is that the many possible sources of inaccuracy and untrustworthiness which may lie underneath the bare untested assertion of a witness can best be brought to light and exposed, if they exist, by the test of cross-examination. But this test or security may in a given instance be superfluous; it may be sufficiently clear, in that instance, that the statement offered is free enough from the risk of inaccuracy and untrustworthiness, so that the test of cross-examination would be a work of supererogation. Moreover, the test may be impossible of employment—for example, by reason of the death of the declarant—so that, if his testimony is to be used at all, there is a necessity for taking it in the untested shape.4

So, there are two considerations that, together, justify an exception to the hearsay rule. The first consideration is a need for the court to utilise a previous representation. As Wigmore observed: Where the test of cross-examination is impossible of application, by reason of the declarant’s death or some other cause rendering him now unavailable as a witness on the stand, we are faced with the alternatives of receiving his statements without that test, or of leaving his knowledge altogether unutilised. The question arises whether the interests of efficient investigation would suffer more by adopting the latter or the former alternative.5

The second consideration is a perception that the circumstances in which the representation was made provide it with some sort of guarantee of trustworthiness. The very idea that there can be a substitute for cross-examination is controversial. In 2004, the United States Supreme Court held that ‘[d]ispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty’.6 However, the Court’s hostility was really aimed at representation-by-representation assessments by courts, rather than the application of general exceptions based on compelling rationales.

6.1.2 Development of the exceptions There have traditionally been many, many exceptions to the hearsay rule, both at common law and statute. The stand-out feature of the past exceptions is their unsatisfactory nature, from the point of view of principle, policy and ease of application. 4 J Wigmore, Wigmore on Evidence, 3rd edn, 1940, Boston: Little, Brown & Co, §1420. 5 Ibid. 6 Crawford v Washington, 541 US 36 (2004).

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The classic example is the ‘dying declarations’ rule, which allowed a court to use a person’s last words identifying their killer, so long as they were made under a ‘settled expectation’ of death. In the famous case of R v Bedingfield (1879) 14 Cox CC 341, a woman suddenly emerged from a house with her throat cut and said something, before collapsing and dying ten minutes later. However, the jury trying her alleged murderer never heard her last words, because they were said with insufficient ‘time for reflection’ to realise that death was imminent. Rules like this can frustrate both sides to any given piece of litigation. In Bedingfield, the exclusion of the woman’s last words initially attracted public concern because of the possibility that the defendant, who had been found in the house holding a razor but claimed that the woman’s wounds were self-inflicted, may have been wrongly convicted. A different threat to accurate factfinding was highlighted when it emerged that the woman’s words in question were: ‘See what Harry [Bedingfield] has done!’ Poorly framed hearsay exceptions may simply operate perversely. For example, the already narrow scope of the dying declarations exception has shrunk further in modern times, when medical advances mean that fewer people die of their injuries and even fewer expect to. Indeed, contemporary first-aiders who reassure the wounded unwittingly reduce the chance of bringing killers to justice. One reason why common law exceptions are often poorly suited to their ostensible rationales is their haphazard development, described by Lord Reid in Myers v DPP [1965] AC 1001 as follows: It is difficult to make any general statement about the law of hearsay evidence which is entirely accurate, but I think that the books show that in the 17th century the law was fluid and uncertain but that early in the 18th century it had become the general rule that hearsay evidence was not admissible. Many reasons for the rule have been put forward, but we do not know which of them directly influenced the judges who established the rule. The rule has never been absolute. By the 19th century many exceptions had become well established but again we do not know how or when the exception came to be recognised. It does seem, however, that in many cases there was no justification either in principle or logic for carrying the exception just so far and no farther. One might hazard a surmise that when the rule proved highly inconvenient in a particular kind of case it was relaxed just sufficiently far to meet that case, and without regard to any question of principle. But this kind of judicial legislation became less and less acceptable and well over a century ago the patchwork which then existed seems to have become stereotyped.

The end of the period of judicial creation and extension of hearsay exceptions was signalled by the House of Lords decision in Sturla v Freccia (1880) 5 App Cas 623 that hearsay could not be admitted unless it fell within the terms of an already existing exception to the hearsay rule. The House of Lords took precisely the same stance nearly 100 years later in Myers, refusing to admit hearsay evidence despite its obvious reliability. Through this refusal to create new exceptions or to modify existing ones, the courts attempted to pass responsibility for reform of the hearsay rule to the legislative arms of government. A quite different path has been taken in some other significant comparative jurisdictions. Notably, in Canada, the Supreme Court preferred the dissent in Myers v DPP and started establishing new hearsay exceptions that satisfied Wigmore’s rationale.7 In later years, the Court formalised this process into what it terms a ‘principled exception’ to the hearsay rule allowing courts to admit any hearsay when the requirements of necessity and reliability are satisfied.8 South Africa and New Zealand have adopted a similar rule in legislative form:9

7 Ares v Venner [1970] SCR 608. 8 R v Khan [1990] 2 SCR 531; R v Smith [1992] 2 SCR 915; R v B (KG) [1993] 1 SCR 740. 9 Evidence Act 2006 (NZ), s 18(1) c.f. Law of Evidence Amendment Act 45 of 1988 (South Africa), s 3. See also Criminal Justice Act 2003 (UK), s 114(1)(d).

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A hearsay statement is admissible in any proceeding if— (a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and (b) either— (i) the maker of the statement is unavailable as a witness; or (ii) the Judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness.

The High Court of Australia itself briefly flirted with this course in Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283, where a ‘telephone’ exception was recognised. Walton, however, proved to be a false dawn and the Court recently firmly refused to develop a new hearsay exception (similar to one in the uniform evidence law) covering confessions by non-parties that exculpate a criminal defendant.10 The course of the hearsay rule in Australia has been overtaken by the uniform evidence legislation, which comprehensively rationalises and liberalises the law relating to hearsay evidence, and the exceptions in particular. Even in Australian jurisdictions that have not enacted the uniform legislation some of its ground-breaking exceptions have been separately adopted.11

6.1.3 Effect of the exceptions Part 3.2—which deals with the hearsay rule—contains three divisions. The first division covers the exclusionary rule, the general exception for dual use evidence and a general limit on all the exceptions in that Part; the remaining two divisions list the specific exceptions. Division 2 is entitled ‘“First-hand” hearsay’; Division 3 is entitled ‘Other exceptions to the hearsay rule’. Each division sets out a number of conditions that, if satisfied in the case of a particular piece of evidence of a previous representation, mean that the hearsay rule does not apply to that evidence. This means that a court may be permitted to use that evidence to prove a particular fact, despite that fact being one that the maker of the representation intended to assert. Bringing evidence that is otherwise caught by the hearsay rule within one of the statute’s hearsay exceptions is a necessary but not sufficient condition for a court to use that evidence to prove a fact that the maker intended to assert. It is a necessary condition because the uniform evidence legislation lacks a broad catch-all exception (like one in modern English hearsay legislation)12 that allows courts to admit hearsay evidence if the interests of justice require. But it is not a sufficient condition because hearsay exceptions only lift the application of the hearsay rule, so the evidence is still subject to all the other rules of evidence. For example, an employment record that notes that a certain employee is lazy may well satisfy the business records exception; however, in order to use that record to prove that the employee was in fact lazy, the evidence will also have to satisfy both the opinion and tendency rules, as well as the discretions concerning prejudicial evidence.

6.1.4 Limiting the exceptions While hearsay exceptions are designed to identify uses of hearsay that are both reliable and necessary, some of them may also permit uses that run counter to that rationale. This is more likely to occur when the exceptions are based on categories (like business records or identification tags) than for exceptions based on tests of reliability (like the exceptions for prosecution evidence 10 Baker v The Queen [2012] HCA 27; (2012) 245 CLR 632. The uniform evidence law adopts this exception at s 65(8). 11 For example, Evidence Act 1977 (Qld), s 93B, enacting rules identical to ss 65(2)(b), (c) and (d)(i) and 65(9) of the uniform law, but using a narrower definition of ‘availability’. 12 Criminal Justice Act 2003 (UK), s 114(1)(d).

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where the maker of a representation is unavailable). An example from outside of the uniform evidence legislation is an old statutory exception dating to the 1960s for representations stored on a computer used to keep track of any human activity. This exception was, presumably, enacted on the premise that the then rare, expensive and controlled process of placing data on a computer was sufficient guarantee of reliability, but the terms of the legislation now cover much of the information on the Internet.13 One way that the uniform evidence legislation avoids overbreadth of this sort is through exceptions to exceptions. A general example is section 61, which appears in Division 1 of Part 3.2: This Part does not enable use of a previous representation to prove the existence of an asserted fact if, when the representation was made, the person who made it was not competent to give evidence about the fact because of subsection 13(1).

This bars the use of Part 3.2 exceptions for previous representations made by someone who, at the time, would not have been able to understand a question about the facts asserted. An example is Hawker v The Queen [2012] VSCA 219, where a shooting victim testified that the shooter did not resemble the defendant. The prosecution adduced evidence of a statement the victim had made while recovering in hospital, where he said he didn’t see what the shooter looked like. However, the trial judge ruled that the victim was too affected by medication to be competent when he made that statement and eventually directed the jury that the hospital statement could only be used to cast doubt on the credibility of the victim’s trial testimony. The trial judge’s direction appropriately distinguishes between a permitted non-hearsay use of the hospital statement (to attack the victim’s credibility) and an impermissible hearsay use (to prove that the man the victim saw could have been the defendant). As outlined in Chapter 5: The Hearsay Rule, section 60 would permit the latter use if the former was also allowed. Here, though, section 60’s application was barred by section 61.14 Many of the individual hearsay exceptions have specific exceptions of their own. And many of those (including section 61) have further exceptions that effectively restore the original exceptions in some narrow circumstances.15 Also, many of the key terms in the exceptions have complex definitions in the Dictionary to the legislation, giving them a narrower or wider scope than the mere words would suggest. So, it is never good enough to simply observe, for example, that a particular piece of evidence appears to be a ‘business record’. You need to read the whole provision that sets out the exception, as well as any other provision that is relevant. Finally, two general rules for the admissibility of all evidence may prevent the use of hearsay evidence even if the evidence otherwise falls within a hearsay exception: • •

section 56(2), excluding irrelevant uses of evidence; and section 136, the general discretion to limit the use of evidence if that use might be unfairly prejudicial, misleading or confusing.

The drafters of the uniform legislation saw the general discretions as a way for courts to mitigate the negative effects of liberalising the rules of evidence, especially the hearsay rule. However, in Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297, the High Court split three ways on how these provisions should be applied to hearsay evidence that falls within an exception. Gaudron and Kirby JJ held that trial judges should scrutinise all evidence of previous representations for 13 For example, s 95 of the Evidence Act 1977 (Qld) and the previous s 55B of the Evidence Act 1958 (Vic). 14 At [35], the Court of Appeal ruled (wrongly, in the authors’ view) that only s 136 (see Chapter 16: Discretionary and Mandatory Exclusions) permits a trial judge to limit the use of a previous representation. It appears that the Court was unaware of s 61: see [26]. 15 For example, s 61(2) exempts the exception in s 66A from the competency requirement. Also, exceptions outside of Part 3.2 (such as admissions) are not affected by s 61.

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relevance, because the hearsay rule reflects the ‘elementary logic … that, without more, evidence that a particular statement was made is probative only of its making’.16 McHugh J, by contrast, argued that previous representations about relevant facts are always relevant (and are only excluded as hearsay for reasons of policy, not logic).17 He also held that it would be wrong to apply section 136 in a general way to exclude hearsay uses that were not allowed under the previous common law. A middle ground was taken by Gleeson CJ and Hayne J, who deprecated the use of section 56’s common sense test to restore legal rules, but observed that:18 There may well arise circumstances in which a court, in the exercise of a discretion enlivened by the requirements of justice in the facts and circumstances of the particular case, will see fit to limit the use of complaint evidence, and, in some instances, it may be appropriate to effect that limitation in a manner which corresponds to the previous common law.

All members of the Court held that the complainant’s immediate and spontaneous complaint of a rape (admitted under section 66(2)) was relevant and did not raise any ground for exclusion as prejudicial, confusing or time-wasting. Papakosmas concerned one of the exceptions for criminal proceedings, which generally include some tests of reliability. However, the Federal Court has recently held that the absence of those tests in civil cases is no basis for excluding even highly significant representations simply because the maker cannot be cross-examined. In Australian Competition and Consumer Commission v Air New Zealand Limited (No 10) [2013] FCA 322, the regulator was seeking civil penalties against a number of airlines for alleged illegal agreements concerning fuel surcharges. The defence adduced evidence of a written statement (admitted under a first-hand hearsay exception) by an airline employee who took minutes at a crucial meeting to the effect that the word ‘agreed’ in that meeting referred to a lack of comments by the attendees at the meeting, rather than to an agreement reached at that meeting. Perram J refused to exclude this evidence, even though the events at the meeting were central to the Commission’s case and it was not able to cross-examine the employee. Indeed, Perram J conceded that he had been wrong to earlier exclude defence evidence of a revealing letter from a foreign airlines regulator (admitted under the business records exception) on the same basis. Rather, all the evidence was admissible, ‘the Court being satisfied of its own ability rationally to assess the weight of the evidence in light of the inability of the Commission to cross-examine its author’. The risks posed by the hearsay exceptions is reduced by two sections of the legislation designed to ameliorate them: the requirement to warn the jury that hearsay evidence may be unreliable19 and the broad exception to the uniform evidence legislation’s restrictions on credibility evidence that permits both parties to adduce evidence that would substantially affect the assessment of the credibility of the maker of a previous representation.20

6.2 FIRST-HAND HEARSAY Division 2 of Part 3.2 arguably involves the statute’s most dramatic departure from the common law of evidence. It defines a new category of hearsay evidence, for which the hearsay rule is abolished largely (in civil proceedings and for defence evidence in criminal proceedings) or partially (for prosecution evidence). To achieve these ends, the division introduces some 16 17 18 19 20

Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297, [58]. Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297, [80]–[87]. Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297, [40]. See Chapter 19: Warnings and Information. See Chapter 11: Credibility.

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new concepts—‘first-hand’ hearsay, a notice requirement, the ‘unavailability’ of the maker of a representation—that have no precedents in the previous common law. The discussion below first considers the two general requirements for the Division 2 exceptions: first-hand hearsay and the notice requirements. It then addresses admissibility in civil proceedings and three situations in criminal proceedings: prior statements by witnesses, other defence evidence, and other prosecution evidence.

6.2.1 General requirements for first-hand hearsay The basic requirement for all of the Division 2 exceptions is that they only extend to ‘first-hand’ hearsay. More remote hearsay, if it is to be admitted at all, must satisfy the much narrower exceptions found in Division 3 or elsewhere. For hearsay evidence to be ‘first-hand’, it must satisfy two conditions. The first and most important requirement concerns the person who made the previous representation. That person must have personal knowledge of the facts that the hearsay evidence is to be used to prove. This requirement appears in a general provision at the start of Division 2: (1) A reference in this Division (other than in subsection (2)) to a previous representation is a reference to a previous representation that was made by a person who had personal knowledge of an asserted fact. (2) A person has personal knowledge of the asserted fact if his or her knowledge of the fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact.21

Because the maker of the previous representation may not be in the courtroom, the court itself will have to draw an inference about what facts the maker personally knew about and what facts the maker was told by someone else. For example, in the trial of David Eastman for the murder of the Commissioner of the Australian Federal Police, a part of the circumstantial case was that the murder weapon may have been sold to a ‘man from Canberra’. The gun seller subsequently died, so the prosecution wanted to call another customer who had heard the seller’s account of the potential sale. However, the ACT Supreme Court reasoned that the fact that someone is from Canberra is not something the dealer could have perceived for himself, but rather something he must have been told (presumably by the Canberra man in question). This meant the seller’s account was not admissible as first-hand hearsay.22 (If the seller had kept a record of the customer’s residence, then that might have been admissible under the business records exception,23 which is not limited to first-hand hearsay.) The High Court has queried whether the requirement of ‘personal knowledge’ is satisfied where the source of the information didn’t perceive the matter directly, but rather drew an inference about it from other things he or she saw. In Lithgow City Council v Jackson [2011] HCA 36; (2011) 244 CLR 352, the disputed evidence was a statement written by a paramedic attending the scene of an accident suggesting that the plaintiff had fallen into a concrete drain. The Court commented that, because no-one actually saw the accident, no-one could have personal knowledge of that fact and that an alternative argument that the paramedic had personal knowledge of his ‘opinion’ about the fall ‘though convenient, is a little strained’. As the evidence was inadmissible on other grounds, the Court did not need to resolve the issue. Its analysis concerned the ‘personal knowledge’ requirement in the business records exception in section 69, rather than the first-hand hearsay 21 Section 62. 22 R v Eastman [1995] ACTSC 59. 23 Section 69.

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exceptions. Section 62(2)’s specific inclusion of knowledge ‘based on something that the person saw, heard or otherwise perceived’ within the definition of personal knowledge may mean that the problem the Court identified will not arise for the Division 2 exceptions. The second requirement for a representation to be considered first-hand concerns how the previous representation is evidenced. This requirement appears within each of the Division 2 exceptions and it varies from exception to exception. The usual way that first-hand hearsay can be evidenced is through the in-court testimony of someone who personally perceived the making of the representation (rather than, say, being told about it by a third party). However, some exceptions allow for alternatives; for example, if the maker testifies in court, then he or she can testify about the previous representation. For civil proceedings and for defence evidence in criminal proceedings, the representation can typically be evidenced with a document that contains it. For each exception, it is important to pay close attention to these evidencing requirements. Most of the exceptions in Division 2 must also satisfy a further procedural requirement. Section 67 of the uniform evidence legislation imposes a notice requirement with respect to all of the first-hand hearsay exceptions discussed below, apart from those that apply to a witness’s prior representations or to rebut other hearsay evidence. In other words, if the hearsay is from a person who is absent in words and testimony from the trial, then notice will generally be needed to use the first-hand hearsay exceptions. Otherwise, no notice is needed. When section 67 does apply to an exception, that exception will not typically be available unless the party wishing to adduce the evidence has given reasonable notice in writing to each of the other parties of its intention to do so. What is reasonable will vary depending on the evidence, the exception and the proceedings. The Victorian Court of Appeal has held that a single day’s notice may be reasonable if that notice was given promptly after a witness’s unavailability to testify became known.24 Regulations in each jurisdiction prescribe the form that the notice must take.25 The court has a discretion to permit an exception to apply despite the lack of notice, although that permission may be subject to conditions.

6.2.2 First-hand hearsay in civil proceedings Division 2 provides three very broad exceptions in civil proceedings (which are defined to include all proceedings other than criminal proceedings).26 First-hand hearsay is admissible if either: • • •

the maker of the representation testifies;27 the maker of the representation is unavailable;28 and calling the maker to testify ‘would cause undue expense or undue delay, or would not be reasonably practical’.29

There are no common law equivalents to these exceptions, which between them go a long way towards abolishing the hearsay rule in civil proceedings. Indeed, it is simpler to identify the sole situation where first-hand hearsay is not admissible in civil proceedings: when the maker of the representation is not called to testify, even though 24 Easwaralingam v DPP [2010] VSCA 353; (2010) 208 A Crim R 122, [34]. 25 Evidence Regulations 1995 (Cth), reg 5; Evidence Regulation 2012 (ACT), regs 5–7; Evidence Regulation 2010 (NSW), reg 4; Evidence (National Uniform Legislation) Regulations 2012 (NT), regs 4–5; Evidence Regulations 2012 (Tas), reg 4; Evidence Regulations 2009 (Vic), regs 5–6. 26 Criminal proceedings are defined in the Dictionary as committals, trials, sentences or bail proceedings for criminal offences, other than some taxation offences. 27 Section 64(3). 28 Section 63. 29 Section 64(2).

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doing so is possible and (given what is at stake) cheap, speedy and practical. Factors to be taken into account in determining whether the exception in section 64(2) is satisfied include the cost of securing the attendance of the witness, the importance of the litigation and the significance of the witness’s evidence.30 If the witness is unwell or elderly that is also to be taken into account.31 An example of a representation that failed these tests is Seafood Imports Pty Ltd v ANL Singapore Pte Ltd (No 1) [2009] FCA 435. At issue was an affidavit from a Tokyo cold store manager about goods that were the subject of dispute. The plaintiff ’s lawyer told the court that a Japanese lawyer had spoken to the manager, who—as a third party—seemed reluctant to get involved. Eventually, he agreed to sign an affidavit prepared by the plaintiff ’s insurers. Subsequent efforts to have the manager attend a video-link studio went nowhere. The plaintiff ’s lawyer told the court that the manager had already spent hours travelling to the Australian consulate to sign the affidavit and had probably been told that it would be the end of the matter. Ryan J held that arrangements through an intermediary and guesswork about a person’s motivations could not satisfy either section 63 or section 64(2). By contrast, in the civil penalty action concerning fuel surcharges referred to above, the Federal Court held that section 63 could be used by an airline to admit statements in affidavits from employees of another airline that had since settled a similar dispute with the regulator. The defendant airline had sent requests to the employees and their airline employer that the employees either be flown to Australia at the defendant airline’s expense or give evidence via videolink, but received the response: ‘Thank you for your email, but regret that I not be able to assist further on this’.32 The truly radical aspect of the exceptions in civil proceedings is that they contain no requirement designed to ensure that the representations to which they apply are reliable; the only ‘guarantee’ of reliability is that the hearsay must be first-hand. Each of the exceptions allows the previous representation to be evidenced through witnesses who perceived the making of the representation, through documents that contain the representation or, if the maker testifies, by the maker testifying about the representation. However, unless the maker testifies, prior notice of the proposal to call first-hand hearsay evidence will have to be given under section 67. That section requires that, if the ground for calling the hearsay is section 64(2), then the notice will have to specify which of the grounds—expense, delay or practicality—will be relied upon. In Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd [2012] FCA 47, the Federal Court rejected the plaintiff ’s attempt to adduce a newspaper article recounting remarks by the Chief Executive of Rio Tinto that were said to reveal his hostility to unions, because the union’s section 67 notice did not detail (and there did not appear to be any) reasons why calling the journalist who wrote the article to testify would be unduly expensive. The purpose of the notice regime is to ensure that ‘the problem of whether a party should or should not have to call the maker of the previous representation who is available should be resolved so far as possible by the parties’.33 As the Australian Law Reform Commission noted: Costs can be saved in civil trials in not having to call witnesses. The proposal extends existing law by enabling a party to avoid having to call witnesses who are available by serving notice on the other parties … and, should objection be received, obtaining the court’s leave—before or at trial—to not call the witness. If there is no objection the representation may be received in evidence without proof.34

Section 68 provides for the opposing party to object to such grounds and for a court to determine them prior to the trial (although unreasonable objections may lead to a costs order, including the 30 31 32 33 34

See Caterpillar Inc v John Deere Ltd (No 2) (2000) 181 ALR 108. See Ordukaya v Hicks [2000] NSWCA 180. Australian Competition and Consumer Commission v Air New Zealand Limited (No 10) [2013] FCA 322, [46]. Australian Law Reform Commission, Evidence (Interim), Report No 26 (2005) Volume 1, [688]. Ibid., [695].

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costs of calling the witness to testify). As some courts have noted, the notice regime also gives the opposing party an opportunity to call the witness itself. Nevertheless, first-hand hearsay evidence may be admitted despite the absence of a written notice: section 67(4). Perram J did so in the fuel surcharge case on the basis that the defendant had earlier stated its intention to adduce the affidavits of employees of the settling airline in open court and the reasons why those employees may be unavailable as witnesses would have been obvious to the Commission.35

6.2.3 Representations of testifying witnesses in criminal proceedings Section 66(2), which applies in criminal proceedings, provides that: If the person who made the representation has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by: (a) that person; or (b) a person who saw, heard or otherwise perceived the representation being made; if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation.

This exception applies to both prosecution and defence evidence. Its effect is that, for every witness who testifies in a criminal trial, the court may also be able to draw on some previous accounts given by that witness. Such accounts may be consistent with the witness’s account (but perhaps more detailed than it) or may contradict it. In the common instance where the prior account is contained in a document that will be shown to the witness, section 66(4) provides that such a document can only be produced at some point after the witness’s evidence-in-chief has concluded. This ensures that the first account the court hears is from the witness’s in-court testimony. Nevertheless, there is no requirement that the witness endorse the previous representation. However, in contrast to civil trials, section 66(2) is limited to representations about facts that were ‘fresh in the memory of the person who made the representation’. It is essential to note that the test of freshness is applied to the person who made the representation at the time they made it. The state of mind of the maker of the representation at the trial and of whoever gives evidence of the representation, as well as the length of time between the representation and the court proceedings (which will often be years) does not matter. Rather, the relevant period of time is between the event that the maker was talking or writing about and the moment when he or she spoke or wrote the words. The ‘fresh in the memory’ test is based on psychological research indicating that memory deteriorates rapidly—within hours if not days of an event—so that representations made while an event is fresh in the memory are more likely to be reliable than later statements. The meaning of ‘fresh in the memory’ was the subject of an early High Court judgment. In Graham v The Queen [1998] HCA 61; (1998) 195 CLR 606, Gaudron, Gummow and Hayne JJ held that: The word ‘fresh’, in its context in s 66, means ‘recent’ or ‘immediate’. It may also carry with it a connotation that describes the quality of the memory (as being ‘not deteriorated or changed by lapse of time’) but the core of the meaning intended is to describe the temporal relationship between ‘the occurrence of the asserted fact’ and the time of making the representation. Although questions of fact and degree may arise, the temporal relationship required will very likely be measured in hours or days, not, as was the case here, in years.

35 Australian Competition and Consumer Commission v Air New Zealand Limited (No 10) [2013] FCA 322, [49]–[56].

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However, the uniform evidence legislation was amended in response to Graham to provide that: In determining whether the occurrence of the asserted fact was fresh in the memory of a person, the court may take into account all matters it considers are relevant to the question, including: (a) the nature of the event concerned; and (b) the age and health of the person; and (c) the period of time between the occurrence of the asserted fact and the making of the representation.

The NSW Court of Criminal Appeal has held that, under this amendment, the ‘temporal relationship’ referred to by the High Court ‘remains a relevant consideration but it is by no means determinative of the question’.36 In that case, it admitted complaints of sexual abuse made up to four years after the alleged abuse, because of the ‘vividness’ of the complainant’s description of that abuse. Section 66(2) is qualified by section 66(3), an important ‘exception to the exception’: If a representation was made for the purpose of indicating the evidence that the person who made it would be able to give in an Australian proceeding or overseas proceeding, sub-section (2) does not apply to evidence adduced by the prosecutor of the representation unless the representation concerns the identity of a person, place or thing.

The purpose of section 66(3) is to prevent criminal trials under the uniform evidence legislation from becoming like Continental European criminal trials, which often revolve around a ‘dossier’ of witness statements. Its effect is that the prosecution cannot use section 66(2) to enter accounts given by witnesses to the police, even if they were made when the events were fresh in the witnesses’ memories, unless they fall within the narrow further exception for identification statements. The defence, by contrast, can put witness statements on the record, including exculpatory remarks made by the defendant when questioned by the police, so long as the statements satisfy the freshness requirement and the witness in question testifies. Note that all of these requirements can be circumvented if the witness’s previous statement is adduced for an admissable non-hearsay purpose (e.g. an admissable credibility purpose) via section 60 (see [5. 4. 1] of Chapter 5: The Hearsay Rule). As well, if the witness is not available to testify, then both sides may be able to adduce that person’s witness statements (fresh or not) under section 65, discussed next.

6.2.4 Other first-hand hearsay adduced by the defence The argument that the uniform evidence legislation all but abolishes the hearsay rule in civil proceedings with respect to first-hand hearsay can also be made in relation to evidence of firsthand hearsay led by the defence in criminal proceedings. Section 65(8) provides that: The hearsay rule does not apply to: (a) oral evidence of a previous representation adduced by a defendant if the evidence is given by a person who saw, heard or otherwise perceived the representation being made; or (b) a document tendered as evidence by a defendant so far as it contains a previous representation, or another representation to which it is reasonably necessary to refer in order to understand the representation.

Hulme J described the role of section 65(8) as follows:37 This important provision remedied a defect in the existing law as administered by the courts in this State. Hitherto, it had been difficult to adduce statements by a person other than the defendant to another that 36 R v XY [2010] NSWCCA 181; (2010) 79 NSWLR 629, [79], [97]. 37 R v Hemmelstein [2001] NSWCCA 220, [41]–[42].

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the speaker had committed the crime with which the defendant was charged, or had or had not done certain acts, which meant that the defendant had not committed the crime or that it was unlikely that he had done so. Sometimes these statements pointed to a third party having committed the crime. The person making the previous representation may not have been available for a variety of reasons including refusing to come to court or refusing to give evidence. In England, as a matter of practice objection was not usually taken to a defendant leading hearsay evidence which was capable of being believed when it tended to show that a defendant was not guilty. A stricter approach was taken by the prosecution in this State. Section 65(8) brings New South Wales into line with the English practice. Section 65(8) involves a recognition of the fact that a defendant may not have the resources to obtain evidence and procure the attendance of witnesses. If the witness who is able to give the primary evidence is overseas and declines to come to Australia, the problem is magnified. It is not uncommon for a person, who informally concedes that it was he not the defendant who committed the crime or who informally makes concessions having that effect, to be unwilling to come to Court to give evidence to that effect. There are the further cases of the speaker dying or ‘going underground’ for a period.

In that case, cocaine was found in the defendant’s golf bag, but he insisted that the golf bag was given to him by an American property developer. The defence sought to adduce evidence from the defendant’s lawyer that he had been contacted by the developer in question who not only confirmed the defendant’s account but also paid some money towards his legal expenses and hinted that he was the one who put the cocaine in the bag. The developer had since returned to the United States and could no longer be found. However, while Hulme JA would have admitted the evidence (subject to the jury being warned about its potential unreliability), the majority held that the developer’s alleged statements were too vague to satisfy the requirement of relevance. Section 65(8) will only apply if the court is satisfied that the maker of a representation is unavailable as a witness and the defence gives notice to the prosecution and any co-accused. Unlike in civil trials, it is not sufficient that it would be unduly expensive to call the witness to testify. Clause 4 of Part 2 of the Dictionary section of the Act provides that: (1) For the purposes of this Act, a person is taken not to be available to give evidence about a fact if: (a) the person is dead; or (b) the person is, for any reason other than the application of s 16 (Competence and compellability: judges and jurors), not competent to give evidence about the fact; or (c) the person is mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability; or (d) it would be unlawful for the person to give evidence about the fact; or (e) a provision of this Act prohibits the evidence being given; or (f) all reasonable steps have been taken, by the party seeking to prove that 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 that the person is not available, to compel the person to give evidence, but without success. (2) In all other cases the person is taken to be available to give evidence about the fact.

Para (a) covers the case of a person who confesses or otherwise helps to exonerate the accused but dies before the trial. Paras (b) and (c) cover the case of a dying or ill witness. Para (f) will apply to the person is either overseas or ‘underground’, so long as the defence establishes that reasonable steps were undertaken to locate him or her. Where the person is alive, competent and present, para (g) may be satisfied if the third party is called as a witness and either refuses to be sworn, or successfully claims the privilege against self-incrimination. New Zealand’s evidence statute contains a provision preventing a party from relying on the unavailability of a witness if the unavailability was due to the party’s own actions (for

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example, intimidating or even killing the witness);38 however, the uniform evidence legislation lacks a similar proviso. In Baker v The Queen [2012] HCA 27; (2012) 245 CLR 632, Heydon J pointed out that section 65(8) does not apply to evidence tendered by the prosecution that the defence wants to rely upon, in that case a police interview with the defendant’s co-accused where the co-accused made statements that were said to exculpate the defendant. However, this limitation may perhaps be overcome by the defence re-eliciting the exculpatory material from the same witness called by the prosecution, either in cross-examination or by calling the witness itself. If ‘evidence of a previous representation about a matter’ has been adduced by the defence, then section 65(9) allows the other parties to the proceedings to lead evidence of other, first-hand representations ‘about the matter’. This has been referred to as the ‘retaliatory’ hearsay exception.39 In declining to recommend reforms to section 65(9), the law reform commissions stated that the term ‘about the matter’ should be construed broadly (allowing more prosecution evidence in response to defence evidence), with any ensuing unfairness to be managed by the general discretions for unfair prejudice.40 Note that section 65(9) differs from section 65(8) in two ways. First, while section 65(8) allows the defence to adduce documents containing an unavailable witness’s representation, section 65(9) only allows the prosecution to adduce evidence of other representations about the same matter by calling a witness who saw, heard or otherwise perceived the representation being made. Second, section 65(9) is not subject to the formal requirement to give notice that they intend to adduce retaliatory hearsay.

6.2.5 Other first-hand hearsay adduced by the prosecution The party who benefits least from the first-hand hearsay exceptions is the prosecutor in criminal proceedings. Prosecutors are subject to the most circumscribed exception for representations by testifying witnesses (because of section 66(3)) and also the most complex and restrictive exceptions for representations by unavailable people (in section 65(1–7)). Before getting to the detail of the latter exceptions, two general reasons why they are onerous for prosecutors should be noted. First, a notorious problem for prosecutors is that people who initially speak to the police about a crime may later become reluctant to testify in court. For example, in R v Darmody [2010] VSCA  41; (2010) 25 VR 209, the complainant in a violent assault case refused to testify at the defendant’s trial because they were both in the same prison and he feared retaliation. He continued to refuse after he was moved to another prison—even after the trial judge warned him that he would be charged with contempt—instead stating that he would only testify once paroled. The uniform evidence legislation does not recognise a hearsay exception used in the United States of America that allows a person’s previous representations to be adduced by the prosecution when the defendant was responsible for the person’s inability to testify (for example, by intimidating the witness).41 Rather, the prosecution must establish that, despite its resources (including having the witness arrested and brought to court), it was unable to make the witness testify. In Darmody, Victoria’s Court of Appeal ruled that the prosecution had taken all reasonable steps to make the complainant testify and that neither bringing contempt charges nor a further delay until the complainant was paroled was required. So, the prosecution was able to adduce the complainant’s earlier testimony at the accused’s committal under the exception in section 65(3). 38 39 40 41

Evidence Act 2006 (NZ), s 16(3). See Beazley, M, ‘Hearsay and Related Evidence—A New Era?’ (1995) 19 UNSWLJ 39, 49. Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005) [8.6.5]. Federal Rules of Evidence, r 804(b)(6).

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Alternatively, the prosecution may argue that an intimidated witness is physically or mentally unable to testify (a new ground of unavailability added to the uniform evidence legislation— except the Commonwealth’s version—after the 2007 reforms). A further option is if the witness is not competent or compellable to testify. For example, if a judge rules that a witness does not have   to  testify due to a family relationship with the accused (under section 18)42 or because of a legitimate fear of self-incrimination (under section 127), then the witness is deemed to be unavailable and the prosecution may be able to adduce some prior statements of the witness for their hearsay purpose. A second problem for prosecutors is that, even when a person is unavailable, the prosecution is limited in how it can prove that he or she made a previous representation under section 65. Apart from the exception for ‘representations made in other proceedings’ in section 65(3), evidence of the representation can only be given by someone who ‘saw, heard or otherwise perceived the representation being made’. This has a very significant, and possibly unintended, consequence in relation to most examples of documentary hearsay. In Conway v The Queen [2000] FCA 461; (2000) 98 FCR 204, for example, the prosecution sought to lead evidence of some diary entries made by the deceased. Although the diary entries might have satisfied all the other requirements of one or other of the exceptions in section 65(2)(b) and (c), the prosecution were unable to satisfy the requirement that evidence of the representations in the diary be given by someone who ‘saw, heard or otherwise perceived’ the diary entries being made. The limitation is less onerous when the document is made by or in the presence of someone else. So long as that person is called as a witness, the document itself can be adduced by the prosecution under section 65.43 In the ACT and Victoria, the operation of section 65 may be affected by criminal defendants’ statutory rights to a fair hearing and to examine prosecution witnesses.44 Some overseas courts have held that similar rights bar the use of formal statements as prosecution evidence unless the defendant had the opportunity to cross-examine the speaker, at least where the hearsay is the sole or main evidence against the accused.45 It is therefore possible that section 65(2) may be read more narrowly than in those jurisdictions, or even that prosecutors may be barred from relying on that provision in some circumstances. Running counter to these possibilities are the general constraints on human rights laws’ application to the uniform evidence legislation and a gloss on the right to confrontation in Victoria’s Charter for where the law ‘otherwise provides’.46 In R v Rossi (Ruling No 1) [2010] VSC 459, a witness to an alleged attempted murder had changed address and was evidently avoiding being subpoenaed to testify, so the prosecution sought to adduce her earlier committal testimony. Lasry J rejected an objection based on the Charter’s confrontation right, noting that Victoria’s uniform evidence law was a law that ‘otherwise provides’, and refused to exclude committal testimony as unfairly prejudicial under section 137. It is perhaps significant that the exception relied on in that case was section 65(3), which requires that the accused already had a reasonable opportunity to cross-examine the witness and therefore would pass muster even on the strict United States approach to the right to confrontation.

42 See Director of Public Prosecutions (Vic) v Nicholls [2010] VSC 397. 43 Cvetkovic, Dragan v The Queen [2010] NSWCCA 329, [343]. 44 Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 24(1) and 25(2)(g); Human Rights Act 2004 (ACT), ss 21(1) and 22(2)(g). 45 For example, Crawford v Washington, 541 US 36 (2004); Al-Khawaja & Tahery v UK [2009] ECHR 110; (2009) 49 EHRR 1 but c.f. R v Horncastle & Ors [2009] UKSC 14; [2010] 2 AC 373. 46 See J Gans, ‘Evidence Law under Victoria’s Charter: Rights and Goals—Part 1’ (2008) 19 Public Law Review 197.

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If the prosecutor surmounts these general obstacles, its ability to adduce first-hand hearsay from unavailable people depends on satisfying the specific requirements of section 65(1–7). The various, overlapping gateways for admission are detailed in the remainder of this section. Note that, in contrast to the first-hand exception for prior statements of testifying witnesses, prosecutors can use the first-hand exception for statements by unavailable witnesses even when those statements were made during a criminal investigation. So, assuming the other requirements are satisfied, the prosecutor can use section 65 to adduce evidence of statements made to the police or even to the courts.

6.2.5.1 Reliable representations Section 65(2)(c) removes the hearsay rule for representations that satisfy the above requirements that were: made in circumstances that make it highly probable that the representation is reliable.47

This provision of the uniform evidence legislation was not the result of a law reform recommendation. Rather, it appears to be a statutory endorsement of a brief and ultimately failed movement in Australia’s common law to relax the hearsay rule in cases where the dangers of admitting hearsay were outweighed by the benefits.48 It also has affinity with much more successful movements in that direction in the United States of America, Canada, the United Kingdom, New Zealand and South Africa. Those jurisdictions are a useful source of case law on how to assess the reliability of a previous representation.49 There has been considerable controversy about the limits of the word ‘circumstances’, which is not defined in the uniform evidence legislation. An equivalent provision of New Zealand’s Evidence Act 2006 contains the following definition: Circumstances, in relation to a statement by a person who is not a witness, include— (a) (b) (c) (d) (e)

the nature of the statement; and the contents of the statement; and the circumstances that relate to the making of the statement; and any circumstances that relate to the veracity of the person; and any circumstances that relate to the accuracy of the observation of the person.

Early cases in NSW adopted a narrower view, suggesting that only ‘the circumstances in which the representation was made, its factual setting at the time it was made’—item (c) in the above list— can be considered.50 However, later cases disagreed, arguing that other matters can be considered, including both the contents of the representation and events on other occasions that bear on the person’s veracity (such as earlier or later statements). For example, if the person’s account contains details that match other accounts or evidence (which the person was unaware of), then that is a reason to rule out the possibility that the person made up those details. The currently favoured approach to the reliability requirements in section 65(2) involves:51

47 Evidence Act 1977 (Qld), s 93B(2)(b) is in substantially identical terms. 48 See Bannon v The Queen [1995] HCA 27; (1995) 185 CLR 1 and compare the stricter approach in Baker v The Queen [2012] HCA 27; (2012) 245 CLR 632. 49 For a detailed discussion of this movement and some of the key cases, see A Palmer, ‘The Reliability-based Approach to Hearsay’ (1995) 17 Sydney Law Review 522. 50 R v Mankotia [1998] NSWSC 295. 51 R v Ambrosoli [2002] NSWCCA 386; (2002) 55 NSWLR 603; Azizi v The Queen [2012] VSCA 205; R v Ryan [2013] NTSC 54.

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•

•

focussing upon the circumstances of the making of the previous representation to determine whether it is unlikely that the representation was a fabrication or highly probable that the representation was reliable; and excluding evidence tending only to prove the asserted fact.

While this approach does not place any limits on which circumstances can be considered (and, indeed, it expressly rejected such limits), it nevertheless restricts the use that the court can make of those circumstances. In R v Ryan [2013] NTSC 54, police took two statements from an eyewitness to a rape four days after the crime identifying the defendant as the rapist. After the eyewitness was killed in a car accident, the police sought to adduce those statements at the rape trial. In considering whether the statements were reliable, the Northern Territory Supreme Court noted that it could not take account of identifications of the defendant by other eyewitnesses, but held that it could take account of the fact that the defendant was the eyewitness’s cousin and that she knew that an investigation of a serious crime was in progress (both matters that it considered increased the likely reliability of the identification). Reflecting the uniform evidence legislation’s only partial adoption of the reliability-based approach to hearsay exceptions, it is clear that the test in section 65(2)(c) is an ‘onerous one’.52 In R v Lodhi [2006] NSWSC 648; 199 FLR 342, for example, Whealy J doubted that it could ever be met when the identity of the speaker was unknown. In Ryan, the Northern Territory Supreme Court admitted the eyewitness’s identification of her cousin under section 65(2)(c), rejecting defence concerns about the eyewitness’s possible contamination by other witnesses and the way the police who took her statement ‘constructed’ it out of a longer interview. However, Kelly J held that the eyewitness’s account of the rape itself did not meet the threshold, on the basis that the four-day delay may have affected her ability to remember ‘peripheral details’, as opposed to the simple fact of the identity of the rapist.

6.2.5.2 Contemporaneous representations The other branches of section 65(2) have less onerous tests for reliability, but balance those tests with additional conditions for lifting the hearsay rule. Section 65(2)(b) of the uniform evidence legislation provides that the hearsay rule does not apply when the maker of a first-hand hearsay representation is unavailable and the representation was: made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication.

This provision resembles the common law’s res gestae exception, which permitted the hearsay use of spontaneous exclamations made contemporaneously with the events that the trial is concerned with. But it is much less strict. In the Bedingfield case discussed earlier, the common law did not permit the admission of the woman’s words following the cutting of her throat, because the event itself was over by then! Section 65(2)(b), by contrast, not only allows some subsequent representations to be admitted, but it also extends to ‘asserted facts’ beyond the occurrence of the crime. In Conway v The Queen [2000] FCA 461; (2000) 98 FCR 204, for example, the fact asserted by the maker of the representation (who was later murdered) was that the defendant had put something in her coffee. The ‘coffee incident’ was not the event that was the subject of the charges; it was simply circumstantial evidence of a prior incident from which relevant inferences might be drawn. Section 65(2)(b) also differs from more recent common law cases on res gestae, which extended the doctrine to cover statements made

52 Conway v The Queen [2000] FCA 461; (2000) 98 FCR 204, [146].

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under the ongoing pressure of the situation.53 The Australian Law Reform Commission argued that stress may still permit fabrication and, indeed, may lead a person to perceive or say things incorrectly.54 Instead, section 65(2)(b) contains two requirements: • •

a reliability requirement (‘made … in circumstances that make it unlikely that the representation was a fabrication’); and a temporal requirement (‘made when or shortly after the asserted fact occurred’).

The reliability condition in section 65(2)(b) differs from both the common law and section 65(2)(c) in that it is only concerned with the possibility of fabrication, as opposed to mistake. In R v Kuzmanovic [2005] NSWSC 771, Miles AJ rejected an argument that ‘fabrication’ is limited to deliberate concoction, instead holding that the term ‘may be taken to include reconstruction falling short of a false invention yet not entirely free of a process of piecing together discrete items of memory’. Thus the court in Conway held that the deceased’s statement about the ‘coffee incident’, which was not admissible under section 65(2)(c) because the deceased appeared to have been confused and disoriented when she made the statement, was nevertheless admissible under section 65(2)(b). In Harris v The Queen [2005] NSWCCA 432; 158 A Crim R 454, the NSW Court of Criminal Appeal adopted a disturbingly low threshold for the test in section 65(2)(b), regarding the mere formalities of witness statements, including the possibility of a perjury prosecution against the soon-to-be-dead victim, as sufficient to satisfy the reliability condition. In the authors’ opinion, this approach clearly risks the admission of unreliable representations and should not be followed. In Ryan, the Northern Territory Supreme Court queried the correctness of Harris, noting that the victim ‘it might be thought, had an interest in minimising his own contribution to the incident’. By contrast, Kelly J had ‘no hesitation’ that a statement to the police made by an eyewitness identifying her cousin as a rapist satisfied the ‘unlikely to be fabricated’ test, given that she knew the defendant but not the victim. The lower reliability threshold for section 65(2)(b) than section 65(2)(c) reflects the additional assurance against error supplied by the temporal requirement. Speaking of the temporal requirement, Sperling J suggested that:55 the predominant factor in the phrase ‘shortly after’ must be the actual time that has elapsed and whether that fits the ordinary usage of the expression ‘shortly after’ in the circumstances of the case. The judgment should, however, be influenced by the policy of the provision. That is to put a brake on evidence being given of a recollection which may have faded in its accuracy with the passage of time. The judgment may therefore be influenced by the subject matter of the event and by how long the memory of such an event is likely to have remained clear in the mind.

These comments were endorsed by the Federal Court in Conway.56 In Williams v The Queen [2000] FCA 1868; (2000) 119 A Crim R 490, on the other hand, a differently constituted bench of the Federal Court commented that: it would be a mistake, in determining whether a statement has been made ‘shortly after’, to over-emphasise matters such as whether the events in question were ‘fresh’ in the memory of the person making the

53 54 55 56

R v Andrews [1987] AC 281, 300–1. Australian Law Reform Commission, Evidence (Interim), Report No 26 (2005) Volume 1, [692]. R v Mankotia [1998] NSWSC 295. Conway v The Queen [2000] FCA 461; (2000) 98 FCR 204, [135].

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statement. The rationale for the exception to the hearsay rule contained in s 65(2)(b) is not based upon the necessity to ensure that the events in question may be easily recalled. Rather that provision is, as a whole, intended to allow evidence that is unlikely to be a fabrication. One condition of this is that the statements be made spontaneously during (‘when’) or under the proximate pressure of (‘shortly after’) the occurrence of the asserted fact.

In Williams the court therefore held that a statement made five days after the events to which it related was ‘outside the temporal realm of statements that may be considered to be reliable because made spontaneously during, or under the proximate pressure of, events’. In Ryan, noting that the two lines of authorities are ‘not easy to reconcile’, Kelly J held that the temporal requirement could be satisfied by a brief statement identifying a rapist four days after the rape (on the basis that the relevant recollection was the earlier recognition of her cousin) but could not be satisfied by a detailed account of the rape made a day later (on the basis that the recollection was of a complex event where her observations were clouded by alcohol).

6.2.5.3 Representations against interest Section 65(2)(d) of the uniform evidence legislation applies if the maker of the representation is unavailable as a witness and the representation was: against the interest of the person who made it at the time it was made.

The rationale for this exception is that people are more likely to be telling the truth when their statements are contrary to their own interests, than when their statements are consistent with their own interests. For example, a person who owes money has an obvious motive to deny the existence of the debt; but when a person claims that he or she owes another money it is not so easy to think of a reason for why that person might be lying. One difference between the exception under the legislation and the common law exception on which it is based, however, is that the legislative exception does not require that the maker of the representation should know that the representation is against his or her interest. This is potentially at odds with the exception’s rationale: if the person does not know that his or her representation is against interest then there is nothing to make it more likely that that person would have been telling the truth. The meaning of ‘against interest’ is outlined in section 65(7): Without limiting paragraph 2(d), a representation is taken for the purposes of that paragraph to be against the interests of a person who made it if it tends: (a) to damage the person’s reputation; or (b) to show that the person has committed an offence for which the person has not been convicted; or (c) to show that the person is liable to an action in damages.

This is broader than the common law, which was only concerned with the maker’s pecuniary or proprietary interests, and specifically excluded the ‘penal’ interests mentioned in section 65(7).57 Following the 2007 reforms, the scope of section 65(2)(d) was narrowed by including a reliability test, requiring that the representation against interest: was made in circumstances that make it highly probable that the representation was reliable.

This test (like the test used for contemporaneous representations) is less strict than the general reliability test in section 65(2)(c). The purpose of the new test is quite narrow: to address the

57 Sussex Peerage Case (1844) 11 CL & F 85; 8 ER 1034 c.f. Bannon v The Queen [1995] HCA 27; (1995) 185 CLR 1.

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problem of prior representations by an accomplice being introduced in a defendant’s criminal trial. While accomplices often speak against their own interests (for example, by admitting their role in a crime), such admissions do not necessarily connote honesty, at least in regards to the behaviour of fellow criminals. Rather, accomplices will obviously be tempted to exaggerate others’ role in order to minimise their own culpability. In R v Suteski [2002] NSWCCA 509; (2002) 56 NSWLR 182, the NSW Court of Criminal Appeal rejected an argument that such potential mixed motives meant that a representation was no longer ‘against the interests’ of the accomplice. The ensuing amendment was recommended to avoid the difficulty of dealing with the problem of accomplices directly. The result is that it applies to all representations against interest and may still permit the introduction of accomplice representations if courts are generous in their assessments of reliability.

6.2.5.4 Representations made under a duty Section 65(2)(a), which restates another common law exception, lifts the hearsay rule for firsthand hearsay by an unavailable witness if the representation was: made under a duty to make that representation or to make representations of that kind.

The uniform evidence legislation exception is much broader than the common law (which was limited to representations of fact made as part of a legal duty to record people’s actions by a person with no motive to misrepresent the facts). Moreover, it also lacks the reliability requirements of the other exceptions in section 65(2). At common law, this exception typically applied to written statements made as part of the declarant’s employment duties. An example of such a statement is provided by the case of Price v Torrington (1703) 1 Salk 285; 91 ER 252, where the issue was whether a consignment of beer had been delivered to the defendant. The plaintiff ’s drayman had recorded his delivery of the beer in the plaintiff ’s books, as was his duty. As the drayman was deceased by the time of the trial, his entry in the books was admissible to prove that the beer had been delivered. It is doubtful that these facts would satisfy section 65(2)(a), because of the general requirement in section 65(2) that the previous representation be evidenced by a person who personally perceived its making; however, this business exception in section 69 will probably apply. Rather, the sole context where section 65(2)(a) may be applied is when a person is under a duty to say things to another person (or to write things in that person’s presence). In Inspector Dieter Franke v Dromore Fresh Produce Pty Ltd [2004] NSWCIMC 28, the provision was used to admit statements made by seasonal fruit-pickers in response to questioning by public servants. When the fruit-pickers later proved impossible to locate, their statements were used in a health and safety prosecution against their employer, on the basis that the employees were legally obliged to answer the questions put. As this example demonstrates, section 65(2)(a) may operate to permit the use of others’ statements against a defendant, without either an opportunity for cross-examination or any rational basis for concluding that the representations were reliable.

6.2.5.5 Representations made in earlier proceedings A final first-hand hearsay exception for unavailable witnesses is contained in section 65(3): The hearsay rule does not apply to evidence of a previous representation made in the course of giving evidence in an Australian or overseas proceeding if, in that proceeding, the defendant in the proceeding to which this section is being applied: (a) cross-examined the person who made the representation about it; or (b) had a reasonable opportunity to cross-examine the person who made the representation about it.

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In contrast to the other section 65 exceptions for evidence adduced by prosecutors, this exception does not require that the representations be evidenced by someone else who perceived it being made (for example, an officer or onlooker in the proceedings). Rather, section 65(6) expressly permits the representation to be evidenced by an authenticated transcript of the proceeding. Examples of representations that may be admitted under this provision include statements: • • • •

given at the committal stage of the proceedings; given in civil proceedings against the defendant arising out of the same events as those forming the subject of the criminal charges; given in earlier criminal proceedings based on the same charges, where the proceedings were either aborted, or where the verdict was successfully appealed against and a retrial ordered; or in the case of a dangerously ill or dying witness, taken in deposition form in order to preserve the witness’s testimony in the event of his or her death (there are statutory provisions allowing this in all Australian jurisdictions).

This exception was justified by the Australian Law Reform Commission with the argument that: Despite the risk of distortion of memory over time, prior sworn evidence in depositions should be received because of the pressures against fabrication.58

More importantly, in contrast to all of the other hearsay exceptions, section 65(3) is only available if the defendant had an opportunity for cross-examination at the time of the making of the representation. Sections 65(4) and (5) deal with joint trials and absent defendants, respectively.

6.3 REMOTE HEARSAY Division 3 of Part 3.2 contains those exceptions that are available for second-hand or even more remote hearsay (or for first-hand hearsay that fails to comply with the other requirements imposed by Division 2). The Australian Law Reform Commission’s view was 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’.59 The exceptions are, therefore, small in number and restricted in their scope. Some of the exceptions do seem justifiable on grounds of reliability. The justification for others seems more pragmatic: excluding the evidence might create unnecessary obstacles to proof. Many of the exceptions involve documents that are produced in the course of modern commerce or communications. It is worth recalling that the hearsay rule only applies to previous representations ‘made by a person’. So, to the extent that the only information that the court wishes to use from a document is wholly generated by mechanical or electronic processes, there is no need to rely on a hearsay exception.

6.3.1 Business and other routine records Section 69 follows earlier statutes in creating an exception for ‘business records’. The name is somewhat misleading. The legislation gives extremely broad definitions to both ‘business’ and the ‘documents’ that contain records, arguably covering just about any routine activity (or even oneoff acts for the purposes of a routine activity) that causes any information to be stored anywhere other than in a person’s head. Government and non-profit activities, as well as electronic storage, 58 Australian Law Reform Commission, Evidence (Interim), Report No 26 (2005) Volume 1, [692]. 59 Ibid., [678].

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are specifically included. Section 69(4) expressly provides that the absence of records that would usually be made if an event occurred can be evidence of the absence of that event, for example a doctor’s failure to give advice to a patient, proven by the absence of a note as to the advice in the patient’s record.60 An example of the exception’s breadth is its use in Western Australia (where similarly broad provisions apply) to admit a ‘gallows confession’ by Perth serial killer Eric Cooke (also known as the ‘Nedlands monster’) to the murder of Julia Brewer. The Western Australia Court of Appeal saw no reason why a signed statement made by the prison priest recording the confession could not be adduced as a business record in a belated appeal by Darryl Beamish, who had been wrongly convicted of Brewer’s murder.61 The exception is so broad that it risks undermining the controls on the first-hand hearsay exceptions, such as the requirements for notice and that absent witnesses be unavailable. Some courts have rejected attempts by insurers and employers defending compensation actions to tender business records describing an accident, without adequate explanation as to why the eyewitnesses were not called, arguing that, even if they qualified under section 69, they should be excluded under section 135 on the ground that it would be ‘unfair’ for the other party ‘to be deprived of the opportunity to cross-examine the witness’.62 Where the person who supplied the business record is available to testify, the non-adducing party may utilise section 167—which allows a party to make a ‘reasonable request’ concerning any ‘previous representation’—to require the adducing party to call that person as witness (see Chapter 20: Procedural Provisions). Section 69 goes well beyond the first-hand hearsay exceptions by allowing a party to adduce records that contain information from composite sources within an organisation or information supplied from outside of it. Section 69(2) expressly permits the use of records founded on secondhand or more distant hearsay, requiring only that the representations relied on be made: 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.

To admit a record under this exception, the court must simply have reason to infer that whoever supplied the information knew what they were talking about. In Daniels v Western Australia [2000] FCA 413, the Federal Court declined to draw such an inference in relation to signs in a display room at a homestead in a national park that made contentious claims about the significance of the site to local Aborigines without any explanation for the source of those assertions. In Lithgow City Council v Jackson [2011] HCA 36; (2011) 244 CLR 352, the High Court queried whether opinions stated in business records—such as a paramedic’s note in an ambulance form that a person the paramedic attended may have fallen off a wall—can satisfy the requirement that the supplier of the information had ‘personal knowledge of the asserted fact’. However, it did not need to decide the issue in that case, as the opinion in question was inadmissible on other grounds. The major constraints on section 69 are purposive. First, both the representation and the document containing it must have been ‘made or recorded’ or ‘kept … in the course of, or for the purposes of, a business’. In applying the requirement that the document be ‘made or recorded’ or ‘kept’, the courts have distinguished between the internal documents (which will qualify as business records) and documents published to the wider world (such as books, newsletters or websites), which do not qualify.63 However, because the exception extends to representations made

60 Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542. 61 Beamish v The Queen [2005] WASCA 62, [241]. 62 Kaperonis v GIO of NSW NSWSC, unreported, 2 February 1996 and Coyne v ANI Corporation Ltd NSWSC, unreported, 7 April 199, discussed in Roach v Page (No 11) [2003] NSWSC 907, [22] and [32]–[33]. 63 Hansen Beverage Company v Bickfords (Australia) Pty Ltd [2008] FCA 406; (2008) 75 IPR 505, [127]–[137].

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‘for the purposes of ’ a business, it is not limited to representations made by agents or employees of a business. In Tasmania v Lim [2012] TASCCA 9, the prosecution relied on handwritten records seized from a fish processing business to argue that the owner understated the amount of rock lobsters taken by a commercial fisherman. The Court of Criminal Appeal held that it was open for the trial judge to find that the records fell within section 69 even though it was unclear whether they were written by an employer of the business or someone the business was dealing with (such as a supplier or customer). However, the Court ruled that the defendant’s request for the prosecution to call the makers of the notes should not have been dismissed by the trial judge as unreasonable without a showing by the prosecution that it was unable to identify who made the notes. The second purposive constraint is an exception (in section 69(3)) to the business records exception if the representation: (a) was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding; or (b) was made in connection with an investigation relating or leading to a criminal proceeding.

While early decisions read section 69(3) narrowly so as not to exclude from the scope of the business records exceptions evidence prepared for the purposes of, for example, proceedings where the person adducing the document was not a party, and investigations where criminal charges were never laid, later judgments have held that the exception’s terms should be applied without qualification.64 For example, the exception barred the use of section 69 to admit ‘bench sheets’ signed by a magistrate recording an undertaking given by the defendant in a prosecution of the defendant for breach of that undertaking.65 The broad rationale of both purposive requirements is to ensure that the representation was made by a disinterested person who had no reason to fabricate the information. But an important side-effect of section 69(3) is to maintain the adversarial nature of Australian criminal trials, by preventing investigative records from being routinely adduced at the trial. Applying these twin constraints is complicated because documents, people and activities can have multiple purposes. In relation to documents, the NSW Supreme Court has held that the mere fact that a document was prepared for the purpose of litigation (indeed in response to a subpoena by a party) did not necessarily bring it within the exception to the exception, if the document was merely an edited, summarised or reformatted version of representations that were made without that purpose.66 An example of the mixed motives of people involved in a business is R v Kaplan [2005] VSCA 316, where the evidence in the defendant’s embezzlement trial was gathered by one of his employees, who kept a personal record of suspicious transactions to avoid being blamed for them. The Victorian Court of Appeal held that the employee’s personal motives in creating the documents neither removed their business nature nor gave them an investigative purpose. Some guidance on the application of section 69(3) to modern government agencies, which often combine investigative roles with service delivery, can be gleaned from United States of America jurisprudence on when a representation is considered ‘testimonial’ (and hence subject to the constitutional right to confrontation). In Davis v Washington, 547 US 813 (2006), the United States Supreme Court considered the police’s dual function of assisting people in distress and investigating crimes. It held that a ‘911 call’ reporting domestic violence was aimed at meeting an ongoing emergency and therefore was not testimonial, whereas statements in response to police

64 Australian Medic-Care Co Ltd v Hamilton Pharmaceutical Pty Ltd (No 4) [2008] FCA 1038; (2008) 170 FCR 9, [13]–[15]; Lewincamp v ACP Magazines Ltd [2008] ACTSC 69, [17]–[31]. 65 Joyce v Baird and Reynolds [2013] ACTSC 79, [15]–1[6]. 66 Edmund-Jones Pty Ltd v Australian Women’s Hockey Association Inc [1999] NSWSC 285, [13].

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questioning were testimonial in nature and hence could not be the subject of a hearsay exception. However, the Court has sharply divided on how to characterise routine reports by forensic laboratories about, for example, drug classification, blood alcohol content and DNA analysis.67 In Australia, section 69(3) would seem to prevent such reports from being adduced as business records. However, section 177 (alongside myriad similar provisions in local legislation) permits expert opinions to be proved by certificate, so long as the defendant is notified and does not ask the prosecution to call the ‘expert’ (who may turn out to be a team of machine operators). In the 2007 consultation, the law reform commissions noted criticisms of section 69(3)’s application in criminal proceedings from both prosecutors (arguing that it excluded legitimate records, such as surveillance records) and defence lawyers (arguing that it included unsubstantiated claims, such as data entry of hand-written forms in welfare cases), but concluded that no case for modifying the exception had been made out.68

6.3.2 Descriptions of objects and messages Sections 70 and 71 contain pragmatic exceptions to facilitate proof of aspects of modern commerce and communication. Section 70 is concerned with objects (a term that is not defined, but includes documents). It provides a hearsay exception for things written on objects (or contained in tabs or labels on them), but only when two purposive conditions are satisfied. The writing must have been placed on the objects: (a) in the course of a business; and (b) for the purpose of describing or stating the identity, nature, ownership, destination, origin or weight of the object, or of the contents (if any) of the object.

These constraints essentially limit the exception to trade descriptions. Despite the broad definition of ‘business’ and the unrestricted definition of ‘object’, courts have interpreted section 70 fairly restrictively, rejecting attempts to use: • • •

labels on a DVD to prove who owns the copyright in the film;69 bylines on a newspaper article to prove who wrote the article;70 and signs at a museum to prove traditional claims about objects in display cases.71

Section 70(2) of the Commonwealth Act bars the use of this exception in penalty and forfeiture proceedings with respect to customs and excise infringements. Section 71 is concerned with electronic communications, which are defined to cover ‘information in the form of data, text or images’ communicated via ‘electromagnetic energy’. It provides a hearsay exception for ‘records’ of those communications, but only for a limited set of facts: (a) the identity of the person from whom or on whose behalf the communication was sent; or (b) the date on which or the time at which the communication was sent; or

67 Melendez-Diaz v Massachusetts, 3 129 S Ct 2527 (2009); Bullcoming v New Mexico, 131 S Ct 2705 (2011); Williams v Illinois, 132 S Ct 2221 (2012). 68 Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005) [8.145]–[8.157]. 69 Holder v Searle [1998] FCA 1775. 70 Kessing v The Queen [2008] NSWCCA 310; (2008) 73 NSWLR 22. 71 Daniels v State Of Western Australia [2000] FCA 413; (2000) 173 ALR 51.

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(c) the destination of the communication or the identity of the person to whom the communication was addressed.

The exception does not cover any other facts revealed in the content of the communication (though other exceptions, such as the first-hand hearsay exceptions or the business records exception might apply). The practical importance of section 71 is limited, because modern electronic equipment now keeps track of time-stamps, email addresses and phone numbers, and automatically records that information in the body of the message and other locations (without any human representations and, hence, outside the scope of the hearsay rule). So, the exception will only matter when the accuracy of that information (such as the accuracy of a device’s clock and calendar, or the names linked to a particular number or address) depends on data entered by a person, or when the record in question was written or typed, rather than automatically recorded. The exception’s application only to ‘electronic communications’ excludes low-tech forms of communication, like people speaking with each other orally, or writing letters by hand or with a typewriter. The definition was updated in recent reforms to cover the communication of ‘sound’, but only when the sound ‘is processed at its destination by an automated voice recognition system’, such as a caller giving their address or telephone number to a computer operated by a taxi service. This was intended to preserves the traditional distinction between ‘oral’ and ‘written’ communications. So, all spoken conversations between humans, whether in person, on the phone or via a multimedia device, and even messages left on voice-mail or answering machines, will continue to fall outside of the exception.72 At common law, some of these conversations would fall within an ad hoc exception developed by the High Court for telephone conversations, where one party orally identifies who they are talking to (for example, within hearing of a third person who is not on the line).73 Under the uniform evidence legislation, such representations (to the extent that they are caught by section 59) would only seem to be admissible via the first-hand hearsay exceptions.

6.3.3 Evidence of reputation and traditions Section 73 and 74 create exceptions for ‘evidence of reputation concerning’ a variety of matters: • • • • •

whether a particular person was married at any particular time; whether a heterosexual couple who live together are married to each other; anyone’s age; ‘family history or a family relationship’; and the ‘existence, nature or extent of a public or general right’.

These exceptions are liberalised versions of traditional common law exceptions. Their purpose is to facilitate the proof of facts that are often passed on by one person to another, rather than directly perceived by anyone. A little recognised example is a person’s age. Despite this being the most personal of characteristics, it is obviously one that (except in the vaguest of senses) cannot be personally perceived by the person who possesses it! Rather, each of us must have been told our age by someone else: our parents, others present at our birth, government records, or perhaps second- or thirdhand sources. In Marsden v Amalgamated Television Services [2000] NSWSC 55, this reasoning was the basis for the plaintiff to object (under section 62(2)) to the defendant’s plan to rely on a 72 Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005) [6.62]. 73 Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283; Pollitt v The Queen [1992] HCA 35; (1992) 174 CLR 558.

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first-hand hearsay exception to allow a court to infer a person’s age from a prior representation made by that person. Levine J instead relied on section 73(1)(c) to admit the evidence, observing: In a general way, I would find it remarkable in this year and in this era if a person seriously could be challenged as to a statement by that person as to that person’s age. It might well be submitted, as implicitly it was as I understand it, that this is a case where age is of critical importance. But acknowledging the critical importance of testimony on that issue in relation to the forthcoming witness, or anyone else, the ultimate decision must be based upon a consideration of all testimony in the balancing exercise, and by what I hope would be the application of common sense.

Similar considerations lie behind the other parts of sections 73 and 74, which typically leave questions of probative value and reliability to the tribunal of fact, rather than the tribunal of law. The term ‘reputation’ has been construed liberally to require only ‘a statement that the witness’s knowledge is acquired based upon a conversation with one person’ (such as a person being told of his parentage by his parents.) However, the resulting belief must still be held by more than one person (and therefore excluded a doctor’s personal notes of a patient’s history).74 By contrast, the facts that can be proved using such evidence have been construed more strictly, excluding whether two people (married or otherwise) are having sex and a history of property disputes or violence among family members.75 Both of sections 73 and 74 are subject to restrictions barring their use by prosecutors in criminal proceedings, except to contradict similar evidence adduced by the defence. Defendants are required to give reasonable notice to the prosecution before relying on reputation evidence relating to age, marriage or family. A particular context where sections 73 and 74 are important is when there is a dispute about traditional laws, customs and relationships, such as in disputes about native title. Despite sections 73 and 74, the law reform commissions, concerned that the hearsay rule continues to be at odds with the oral tradition of Aboriginals and Torres Strait Islanders, proposed the enactment of a new section 72 (replacing the previous section 72, which has become section 66A) in the following terms: The hearsay rule does not apply to evidence of a representation about the existence or non-existence, or the content, of the traditional laws and customs of an Aboriginal or Torres Strait Islander group.

This provision aims to completely remove the presumptive inadmissibility of such traditions, instead leaving questions of their accuracy to the tribunal of fact (or, as the explanatory memorandum to the Northern Territory Bill notes, to the requirement of relevance). The definition of traditional laws and customs extends to those of kinship groups and to ‘observances, practices, knowledge and beliefs’. According to the explanatory memorandum to the Victorian Bill, it is intended to include laws and customs that arose after the European occupation of Australia.

6.3.4 Evidence in interlocutory proceedings In interlocutory proceedings parties frequently rely on material contained in affidavits, rather than on the testimony of witnesses. Such material is obviously hearsay. This may be unproblematic because both the uniform evidence legislation (in section 190) and various common law and equity rules (preserved by section 9(2)(c) often allow courts to dispense with the strict requirements of proof on the basis of urgency or expense. It is common in many civil proceedings for the parties to agree to rely on affidavit evidence as a substitute for oral evidence. 74 Cvetkovic, Dragan v The Queen [2010] NSWCCA 329, [353]. 75 R v Mirish NSWSC, unreported, 15 August 1996; Day v Couch [2000] NSWSC 230; Cvetkovic, Dragan v The Queen [2010] NSWCCA 329, [353].

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Where those general options are not used or are unavailable, section 75 of the uniform evidence legislation allows the use of such material: In an interlocutory proceeding, the hearsay rule does not apply to evidence if the party who adduces it also adduces evidence of its source.

In International Finance Trust Company Ltd v NSW Crime Commission [2008] NSWCA 291; (2008) 232 FLR 37, the NSW Court of Appeal considered the application of section 75 in an ex  parte hearing brought to restrain various bank accounts suspected to be the proceeds of a crime. To satisfy the Court that he had reasonable grounds for such a suspicion, the applicant adduced an affidavit describing various facts as having been uncovered by police and tax investigations. Although the Court agreed that the proceedings were interlocutory (because the final status of the property will be determined at a later hearing), a majority found that the applicant’s affidavit should have been rejected because it neither described his role in the investigation (other than arresting the suspect) nor otherwise explained how he came to know the facts that the investigation uncovered. The same court has since held that, where there are multiple sources of information (such as a team of police officers), it is enough if the adducing party identifies one person with access to all the information (so long as that is sufficient to allow the Court to assess the information for the purposes of resolving the interlocutory proceeding).76

SUMMARY The hearsay rule does not apply in some specific situations set out in the uniform evidence legislation. Even if the evidence falls within an exception to the hearsay rule, its use is subject to all the other rules of evidence, including the discretionary exclusions. The availability of a hearsay exception depends on several factors, including whether the proceedings are civil or criminal, whether the hearsay is first-hand or more remote, whether the maker of the representation is available as a witness and—in criminal proceedings—whether the evidence is led by the prosecution or the defence. Many of the first-hand hearsay exceptions are subject to restraints about how the previous representations can be proved and a requirement that reasonable notice be given.77

First-hand hearsay: civil proceedings In civil proceedings, first-hand hearsay is admissible if: • • •

76 77 78 79 80

the maker of the representation is unavailable as a witness;78 or it would cause undue expense, delay or inconvenience to call him or her as a witness;79 or the person who made the representation is called as a witness.80

New South Wales Crime Commission v Vu [2009] NSWCA 349. Section 67. Section 63. Section 64(2). Section 64(3).

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First-hand hearsay: criminal proceedings In criminal proceedings first-hand hearsay is admissible in the following situations: • • •

if the maker of the representation is called as a witness and the representation was made at a time when the asserted fact was fresh in the maker’s memory;81 if the maker of the representation is unavailable and the evidence was adduced by the defence;82 if the maker of the representation is unavailable and the evidence was adduced by the prosecution and one of the following conditions is satisfied: – the defence adduced a previous representation about a matter;83 – the representation was made under a duty;84 – the representation was made when or shortly after the event to which it relates occurred and in circumstances that make fabrication unlikely;85 – the representation was made in circumstances that make it highly probable that it is reliable;86 – the representation was against the interests of the person who made it and in circumstances that make it likely to be reliable;87 and – the representation was made in the course of giving evidence in Australian or overseas proceedings and the defendant in the case at hand either cross-examined the maker of the representation in those proceedings, or had a reasonable opportunity to do so.88

More remote hearsay In both civil and criminal proceedings, more remote hearsay is admissible if it meets the terms of a specific exception to the hearsay rule, including those that apply to: •

• • • • •

81 82 83 84 85 86 87 88 89 90 91 92 93 94

representations contained in routine records, where the representation was either made by a person with personal knowledge of the asserted fact, or was based on information supplied by such a person;89 the contents of tags, labels and writing either on or attached to objects;90 representations recording the transmission of electronic communications;91 representations as to traditional law and customs of Aboriginal and Torres Strait Islander groups;92 representations as to relationships and age, and about the existence, nature and extent of public or general rights (but with limits in criminal proceedings);93 and interlocutory proceedings.94

Section 66. Section 65(8). Section 65(9). Section 65(2)(a). Section 65(2)(b). Section 65(2)(c). Section 65(2)(d) and (7). Section 65(3), (4), (5) and (6). Section 69. Section 70. Section 71. Section 72. Sections 73 and 74. Section 75.

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s 64 Is the maker testifying?

Is the evidence from the maker?

YES

YES

NO s 62 Did the maker of the previous representation have personal knowledge of the fact to be proved?

s 63 Is the maker available to testify?

YES s 67

YES Would calling the maker to testify cause undue expense or delay or not be reasonably practicable?

YES

Did the party adducing the evidence comply with the reasonable notice requirement?

NO

Is the evidence from someone who perceived the representation being made?

YES

Was the representation recorded for the purpose of a business?

YES

YES

s 69 Is the evidence a business record?

NO

YES

Was the representation made in relation to proceedings or a criminal investigation?

NO

YES

NO s 70 Is the evidence a tag or label attached to an object, or writing on an object? NO

YES

NO

Is the purpose of the representation to describe or identify the object?

YES

Was the representation recorded in the course of a business?

NO

NO

THE EVIDENCE IS INADMISSIBLE TO PROVE A FACT THAT THE MAKER INTENDED TO ASSERT (unless another hearsay exception applies)

NO

s 66A Was the representation a contemporanous representation YES about the maker’s health, feelings, sensations, intention, knowledge or state of mind?

YES

NO

s 71–75 Was the evidence within the electronic communication, traditional law and customs, reputation or interlocutory proceedings exceptions?

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s 61 When the representation was made, was the maker competent to give evidence?

NO

NO

Was the representation based on information supplied by someone who had knowledge of the fact to be proved?

NO

NO Is the evidence a document YES containing the representation?

FIGURE 6.1 HEARSAY EXCEPTIONS: CIVIL PROCEEDINGS

YES

YES

YES

THE ADMISSIBILITY OF THE EVIDENCE IS NOT AFFECTED BY PART 3.2

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FIGURE 6.2 HEARSAY EXCEPTIONS: CRIMINAL DEFENCE EVIDENCE

134 PART 2 ADMISSIBILITY

YES

s 66 Is the maker testifying?

YES

When the representation was made, was the fact to be proved fresh in the maker’s memory?

Is the evidence from the maker?

YES

YES

NO s 62 Did the maker of the previous representation have personal knowledge of the fact to be proved?

s 65 Is the maker available to testify?

NO

YES

NO

YES

NO

Is the evidence from someone who perceived the representation being made?

YES

NO

NO

YES

Was the representation based on information supplied by someone who had knowledge of the fact to be proved?

YES s 67 Did the defence comply (or has a court dispensed) with the reasonable notice requirement?

Is the evidence a document containing the representation?

NO

s 69 Is the evidence a business record?

YES

NO

YES

s 70 Is the evidence a tag or label attached to an object, or writing on an object?

YES

NO

Was the representation made in relation to proceedings or a criminal investigation?

NO

Was the representation recorded for the purpose of a business?

YES

NO Is the purpose of the representation YES to describe or identify the object?

Was the representation recorded in the course of a business?

NO

s 61 When the representation was made, was the maker competent to give evidence?

YES

NO

ss 71, 72, 74, 75 Was the evidence within the electronic communication, traditional law and customs, reputation (public or general rights) or interlocutory proceeding exceptions?

YES

NO s 73 Was the evidence of reputation concerning relationships or age?

YES

Does the evidence contradict admitted evidence?

YES

NO

Did the defendant give reasonable notice of the evidence?

NO

THE EVIDENCE IS INADMISSIBLE TO PROVE A FACT THAT THE MAKER INTENDED TO ASSERT (unless another hearsay exception applies)

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NO

s 66A Was the representation a contemporanous representation YES about the maker’s health, feelings, sensations, intention, knowledge or state of mind?

Yes YES

YES

THE ADMISSIBILITY OF THE EVIDENCE IS NOT AFFECTED BY PART 3.2

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CHAPTER 6 HEARSAY EXCEPTIONS 135

YES

NO

YES s 62 Did the maker of the previous representation have personal knowledge of the fact to be proved?

YES Was the representation an identification?

Is the evidence from YES the maker?

YES

NO

NO

NO

s 65 Is the maker available to testify? NO

NO

Was the representation made NO to indicate future evidence?

s 67 Did the prosecution YES comply (or has a court dispensed) with the reasonable notice requirement?

Was the representation made during a proceeding?

YES

Did the defendant have an opportunity to cross-examine YES the maker at that proceeding?

NO Was the representation made under a duty?

YES

NO Is it highly probable that the representation is reliable?

YES Is the evidence from someone who perceived the YES representation being made?

NO Was the representation made shortly after the fact to be proven occurred?

YES

Is it unlikely that the representation was fabricated?

YES

Is it likely that the representation is reliable?

YES

NO

NO

Was the representation against the interests of its maker when it was made?

YES

NO

s 61 When the representation was made, was the maker competent to give evidence?

FIGURE 6.3 HEARSAY EXCEPTIONS: CRIMINAL PROSECUTION EVIDENCE

YES

s 66 Is the maker testifying?

When the representation was made, YES was the fact to be proved fresh in the maker’s memory?

NO

Is the representation about a matter about which defence hearsay evidence has been admitted?

YES

NO

YES

s 69 Is the evidence a business record?

YES

NO Was the representation based on information supplied by someone who had knowledge of the fact to be proved?

NO

Was the representation made in relation to proceedings or a criminal investigation?

NO

Was the representation recorded for the purpose of a business?

YES

s 70 Is the evidence a tag or label attached to an object, or writing on an object?

YES

NO Is the purpose of the representation to describe or identify the object?

YES

NO

YES

Was the representation recorded in the course of a business?

NO

YES

NO

ss 71,72,75 Was the evidence within the electronic communication, traditional law and customs or interlocutory proceedings exceptions?

YES

NO ss 73–74 Was the evidence of reputation concerning relationships, age or general or public rights?

YES

Does the evidence contradict admitted evidence? NO

NO THE EVIDENCE IS INADMISSIBLE TO PROVE A FACT THAT THE MAKER INTENDED TO ASSERT (unless another hearsay exception applies)

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NO

s 66A Was the representation a contemporaneous representation about the maker’s health, feelings, sensations, intention, knowledge or state of mind?

YES

YES

YES

THE ADMISSIBILITY OF THE EVIDENCE IS NOT AFFECTED BY PART 3.2

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136

OPINION

7

INTRODUCTION An important part of the fact-finder’s task in legal proceedings is to draw inferences from admissible evidence. This chapter discusses attempts to inform the court that somebody else has drawn relevant inferences from facts that that person has perceived or been told about. In other words, it addresses the question: when is the outcome of fact-finding by others admissible as evidence? The chapter deals, in turn, with two parts of the law. First is the opinion rule, which governs the admissibility of inferences drawn by a person from observed or assumed facts. The core of the rule is two broad exceptions permitting the consideration of a variety of opinions. Second is the courts’ general management of expert evidence, the subject of one of those exceptions. Other narrower exceptions to the opinion rule are discussed in Chapter 8: Admissions; Chapter 9: Judgments and Convictions; and Chapter 12: Character.

7.1 THE OPINION RULE An opinion is ‘an inference drawn from observed and communicable data’.1 Forming opinions is a regular part of life, as people routinely draw inferences about what they have seen, heard or been told. Sometimes, people will come to hold opinions about facts that are relevant in legal proceedings. For example, people might hold opinions about: • • • •

the credibility of one or more witnesses in a trial; the character of one of the parties; the nature of a relevant object, location or event; or the likelihood that a particular thing relevant to the case happened or existed.

Ultimately, it is only the fact-finder’s opinion about these topics that is determinative. However, views held by others might be influential, either because the opinion holder is privy to information unavailable to the fact-finder or because that person’s views carry weight with the fact-finder. In addition to other exclusionary rules, the uniform evidence legislation manages this issue through the ‘opinion rule’, set out in section 76: Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.

1 See Allstate Life Insurance Co v Australasia & New Zealand Banking Group (No 32) [1996] FCA 1331; (1996) 136 ALR 627, [9] (Lindgren J).

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The basic rationale for the opinion rule is that opinions about relevant facts are a duplication of the fact-finder’s own task of assessing the evidence. Allowing such an exercise in duplication to be presented as evidence may lengthen the trial, complicate the fact-finder’s task (by requiring the fact-finder to assess others’ opinions) and raise the risk that the fact-finder may improperly defer to the opinion holder’s assessment of the facts. Moreover, if the witness’s opinion is based on evidence that is itself before the fact-finder, then the opinion formed by the witness may be irrelevant. In Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650, one fact in issue was whether the defendant was the person pictured in a photograph of a robbery in progress. Both the photograph and the defendant were available to be examined by the jury. In this context, the majority of the High Court held that evidence from two police officers that they had earlier recognised the defendant in the photograph was incapable of rationally affecting the jury’s assessment of the probability that the defendant was the person pictured. Several restrictions on the operation of the opinion rule are (or may be) implicit in the formulation of section 76: First, like other exclusionary rules of evidence, the operation of the opinion rule depends on the use that the fact-finder might make of evidence disclosing a person’s opinion. The opinion rule bars the fact-finder from using evidence of an opinion of fact as the basis for inferring the correctness of that opinion, but permits the fact-finder to infer the mere existence of the opinion. For example, a murder defendant’s opinion that the victim was violent cannot be used to infer that the victim was actually violent. But it can be used to infer that the defendant believed that killing the victim was necessary in self-defence. So, opinion evidence will be admissible, despite the opinion rule, if the mere existence of the opinion is relevant, regardless of its accuracy. As was the case with the hearsay rule, the uniform evidence legislation provides in section 77 that, if the non-opinion use of the evidence is admissible, then the opinion rule ceases to apply: 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.

Like section 60, this removes the need for a judge to distinguish between two uses of the evidence, one permitted and the other forbidden. However, it is still open to a judge to exclude the opinion use of evidence using the discretion in section 136 or to exclude the evidence entirely using the discretions in sections 135 or 137. A second limitation on the opinion rule was once suggested by Austin J in ASIC v Rich [2005] NSWSC 417; (2005) 216 ALR 320, where he proposed that the rule should only apply to in-court testimony:2 Confining the opinion rules to evidence given in court is consistent with their rationale. It is appropriate to require a witness giving an opinion in an adversary context to comply with the relatively strict requirements of s 78 or 79, because of the risk of bias or influence, while opinions expressed in business records created for non-litigious purposes are treated as generally reliable.

However, the High Court of Australia has rejected this suggestion, holding that opinions expressed in previous representations that are admitted in evidence despite the hearsay rule, (for example, because they were not intended to assert the opinions, or because they fall within an exception, such as business records) must still comply with section 76, just like all other evidence of an opinion.3 That is, out-of-court opinions cannot be used to prove a fact about which an opinion is intentionally expressed without satisfying both an exception to the hearsay rule and an exception to the opinion rule. 2 ASIC v Rich [2005] NSWSC 417; (2005) 216 ALR 320. 3 Lithgow City Council v Jackson [2011] HCA 36; (2011) 244 CLR 352, [19].

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The fact that the opinion rule applies to both in-court and out-of-court opinions does not mean the two sorts of opinions are treated the same way under that rule. To the contrary, while in-court opinions can be clarified by the parties to ascertain their content and character, outof-court opinions may be too ambiguous to be useful or admissible. An example is Lithgow City Council v Jackson [2011] HCA 36; (2011) 244 CLR 352, the case where the High Court held that the opinion rule applies to out-of-court opinions. The relevant evidence was the words ‘Fall from 1.5 metres onto concrete’ written by a paramedic in an ambulance report describing the state of a man with head wounds. The Court identified two ambiguities about these words. First, there was no adequate evidence as to what facts, if any, this opinion was based on, as it was not clear whether the man had moved between his fall and the arrival of the paramedics. Second, as the Court itself discovered when it examined the original of the ambulance report (instead of a poor photocopy used in the courts below), the relevant words on the form were preceded by a question mark, leaving it unclear whether they express a conclusion or merely a question that was unresolved. The Court therefore held that the statement could not be classified as an ‘opinion’. Technically, this ruling favoured the statement’s admissibility, as the evidence no longer fell within the exclusionary rule for opinions. However, the ambiguity also cast doubt on the statement’s relevance. As noted in Chapter 4: Relevance, the Court had already ruled that the ambulance report was irrelevant in the particular trial because of a further ambiguity about the word ‘fall’. A final limitation on the opinion rule is implicit in the very nature of communication. In Partington v The Queen [2009] NSWCCA 232; 197 A Crim R 380, Grove J observed: In a broad sense, any statement describing what a person has ‘seen, heard or otherwise perceived’ can be categorized as an opinion … I consider the ultimate issue must be on which side of a line of indefinite quality a particular statement lies. As I have said, I consider that it should be recognized that deductive or inferential processes occur in the mind even when the descriptor is speaking de visu et auditu. Without postulating the existence of such a line, it becomes arguable that there is an element of opinion in almost any statement. Obviously when a ‘bright line’ cannot be drawn, there will be scope for debate as to on which side of the line particular circumstances fall but that does not provide a reason to deny the existence of a line.

In that case, a 15-year-old, who stood inside her apartment listening to a fight just outside her door, testified that she heard the accused’s voice and a different ‘moaning … voice that was being pushed against the door’. The majority, noting that she ‘made observations of the door and heard noises coming from the outside’, simply took for granted that the statement about a person ‘being pushed against the door’ was an opinion. By contrast, Grove J held that the 15-year-old’s statement ‘was no more than descriptive of an auditory perception by a witness and whatever deductive or inferential process may have passed through the mind they were essentially inherent’. Nevertheless, he concurred with the majority because he considered that a later comment in the teenager’s testimony that it was the deceased’s ‘head’ that was pushed against the door ‘could only emerge from a process in which a conclusion is drawn which is a step in addition to simply recognizing what has been conveyed by auditory senses’. A particular problem is that people often communicate (and remember) complex events in summary form. For example, people typically cannot remember conversations verbatim, but instead testify that words were said ‘to the effect’ of a particular meaning or outcome. Some courts have held that such summaries amount to an opinion, while others have said that the regulation of such testimony by the opinion rule is inappropriate.4 In La Trobe Capital & Mortgage Corporation Limited v Hay Property Consultants Pty Ltd [2011] FCAFC 4; (2011) 190 FCR 299, the Full Court of the Federal Court considered evidence from the senior manager of a mortgage firm about the firm’s 4 Compare Guide Dog Owners’ & Friends’ Association Inc v Guide Dog Association of New South Wales & ACT & Anor [1998] FCA 480 and Jackson v Lithgow City Council [2010] NSWCA 136, [63].

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loan business after it made a negligently valued loan. The senior manager’s testimony included statements about the daily average number of loans his firm made, the firm’s lack of records of rejected loans, that it had rejected ‘one or two’ large loans, that demand for loans exceeded the firm’s funds, and that the firm would have made certain loans if it hadn’t made the negligently valued loan. The Court ruled that all of these statements were about facts, rather than opinion, and the effect of their lack of particularisation only affected their weight, not their admissibility. Ultimately, the inferential content of a witness’s testimony is itself a matter for inference by the trial judge from the nature of the facts asserted by the witness and the circumstances of their perception and recollection. The form of the witness’s assertion (for example, ‘I saw’ as opposed to ‘I think’) is not a reliable guide to whether or not it is an opinion, because even the witness may be unaware of or misstate the role played by inference in her or his own testimony. In Smith v The Queen [2001] HCA 50; 206 CLR 650, Kirby J considered whether a claim about the identity of a person in a photograph was a fact or an opinion. While conceding that a person’s recognition of a close family member in a clear photograph ought to be regarded as a statement of fact, he held that two police officers’ recognition of a person they had dealt with previously in a security photograph of a bank robbery should be classified as opinion evidence. It is doubtful that there is any clear distinction between perception, recollection and communication (on the one hand) and inference (on the other) or, more broadly, between fact and opinion. Acknowledging that the distinction involves a question of degree merely raises a further question about where the line should be drawn. The better view is that the dividing line between fact and opinion is a pragmatic question involving a consideration of whether it is desirable for the rules of evidence to exercise closer control over the admissibility of the assertion. For example, in Smith, Kirby J expressly referred to the history of misidentification in criminal trials as a ground for treating non-acquaintance recognition evidence as opinion evidence. In La Trobe Capital, Finklestein J observed that the opposing party has a choice on whether or not to clarify a testifying witness’s vague opinions in cross-examination; ‘[t]o be faced with a strategic decision is not to be burdened with a forensic disadvantage’. However, he noted that the position may be different if a vague opinion expressed by a witness creates a risk that any cross-examination to clarify that fact will lead to the opposing party being ambushed by unanticipated facts that cannot be adequately tested. Importantly, many of the difficulties involved in defining the scope and operation of the opinion rule are reduced by the exceptions to the rule discussed next.

7.2 PERMITTED OPINIONS Despite the existence of the opinion rule, it is wrong to regard the law of evidence as hostile to opinion evidence in the way that it is hostile to hearsay evidence. The exceptions to the opinion rule are an acknowledgment that the admission of evidence of some opinions may be highly beneficial to the fact-finding task. In many common law jurisdictions, the exceptions to the opinion rule are based on the necessity of admitting certain opinions to ensure that the fact-finder reaches the correct result. Australian courts broadly favour the more inclusive justification that the admission of the opinions—at least, those based on specialised knowledge—be merely helpful, in that they would assist the fact-finding process. The clearest circumstance favouring the admissibility of an opinion is when the fact-finder will be denied relevant information if a person’s opinion is not admitted. This will occur when the nature of the information is such that the information cannot be effectively communicated to the fact-finder without a reliance on substantial inferences drawn by the person who possesses that information. The exceptions to the opinion rule permit witnesses to state opinions in order to facilitate the flow of the information to the fact-finder.

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The uniform evidence legislation follows the common law in setting out two primary exceptions to the opinion rule to allow the fact-finder to benefit from two categories of information: eyewitness perceptions and specialised knowledge. The admissibility of opinions to facilitate the divulgence of other types of information that people might hold depends on a bevy of minor exceptions, as well as the malleability of the rule and its two exceptions.

7.2.1 Necessary communication of eyewitness perceptions The opinion rule requires witnesses to act as mere conduits for the facts they perceive. When they testify, they must keep any views, apart from the bare inference that what they recall actually occurred, to themselves. The problem is that people are not machines for faithfully recording and replaying every fact they observe. Rather, human perception and memory both rely on a process of classifying and interpreting incoming information. Also, the communication of remembered events in ordinary language necessitates the formation of additional inferences about the proper description of those events. So the communication of many observed facts is beyond the capacity of most people unless they rely on substantial inferences. For example, a witness testifying about the age or gender of a person or speed of a vehicle will often be unable to recall, or at least state, the vast array of physical cues that originally led him or her to draw that inference. Even if a witness was able to relay her or his bare perceptions, the resulting testimony would probably be unintelligible to the fact-finder. If all such opinions were inadmissible, that would deny the courts a vital category of evidence: the complex perceptions of eyewitnesses. Despite the growth of surveillance technology, most disputes about past or distant facts cannot be resolved by bringing real evidence, such as photos or video tape recordings, into the courtroom. Rather, the resolution of factual disputes is largely dependent on the testimony of witnesses who perceived those facts or events, however imperfectly. To overcome this problem, the common law of evidence has long permitted witnesses to state opinions about a variety of perceived matters, including: questions 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.5

According to the High Court:6 The common law permitted the reception of non-expert opinion evidence where it was very difficult for witnesses to convey what they had perceived about an event or condition without using rolled-up summaries of lay opinion—impressions or inferences—either in lieu of or in addition to whatever evidence of specific matters of primary fact they could give about that event or condition.

Section 78 of the uniform evidence legislation, which the Court held deals with the ‘same problem’, provides that: 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.

5 Hardy v Merrill 56 NH 227 (1875), approved by Lord MacDermott LCJ in Sherrard v Jacob [1965] NI 151, 161. 6 Lithgow City Council v Jackson [2011] HCA 36; (2011) 244 CLR 352, [45].

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Like the earlier common law, section 78 ‘only applies to opinions given by those who actually witnessed the event about which the opinion is given’.7 In Lithgow City Council v Jackson, the High Court held that a statement in an ambulance report expressed to be about the cause of a patient’s injuries failed that test, because the maker wasn’t present when the injuries were caused. The second condition in section 78(b) confines the application of the exception to perceptions that can only be communicated by stating an opinion. In Lithgow City Council v Jackson, the High Court held that, even if the remark in the ambulance report was treated as if it was an opinion that a person’s injuries and position when found by the paramedics appeared to have been caused by a particular sort of fall into a drain, such an opinion would still have failed to satisfy section 78(b). That is because: It would be possible for an observer to list his or her perceptions of specifically identifiable medical circumstances of someone found in a drain, perceptions of specifically measurable distances between limbs and other objects and perceptions of specifically describable angles of limbs. Professional investigators like police officers, for example, commonly make precise measurements of that kind and compose diagrams to illustrate what they have measured. Those persons can often remember what they have measured even without recourse to their notes. The process is not one where component observations are made which are incapable of meaningful expression without stating the composite opinion to which they led. It is not necessary, in order to obtain an adequate account or understanding of perceptions of that kind, that the opinion be received.

If the opinion-holder testifies in court, the requirement in section 78(b) can be tested simply by asking the witness to confine his or her account to the ‘bare facts’ and seeing whether or not such an account communicates every relevant thing he or she witnessed. However, this option is not available in the case of previous representations admitted pursuant to a hearsay exception. The High Court rejected a suggestion that section 78(b)’s necessity requirement was satisfied in the case of the ambulance report because it was the only evidence before the court of what anyone saw at the scene of the plaintiff ’s fall: The word ‘necessary’ is not directed to meeting difficulties that arise where it is impossible or inconvenient to call the person propounding the opinion as a witness. It is not analogous to the provisions permitting evidence of hearsay statements where better evidence is unavailable (e.g. ss 63 and 65 of the Act) or where to call better evidence could cause undue expense or undue delay or would not be reasonably practicable (s 64 of the Act). Section 78 is not a ‘best evidence’ provision, permitting reception of the evidence if there is no better evidence. The word ‘necessary’ is instead directed to a relationship internal to the evidence of the perceiver—the relationship between the perceiver's perceptions and the perceiver's opinion.

In R v Whyte [2006] NSWCCA 75, the jury had to determine whether a defendant who assaulted a victim did so with an intent to have sexual intercourse. Spigelman CJ held that the victim’s early report that the defendant ‘tried to rape me’ was admissible pursuant to section 78, as the issue of the defendant’s intent ‘is not something necessarily capable of full description by describing the movement of parts of the body or other physically observable acts’ but rather can arise from an indescribable impression. Simpson J found the opposite, while Barr J characterised the victim’s words as an assertion of fact, not opinion. The perceptions exception to the opinion rule leaves any potential prejudice associated with doubtful witness inferences to be dealt with by other rules of evidence (see Chapter 4: Relevance and Chapter 16: Mandatory and Discretionary Exclusions). For example, in R v Van Dyk [2000]

7 Lithgow City Council v Jackson [2011] HCA 36; (2011) 244 CLR 352, [41].

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NSWCCA 67, evidence that a rape defendant often displayed a ‘look of wanting’ when he was near the complainant and others was held to be within section 78. However, the evidence was excluded through the exercise of section 137’s discretion to exclude prejudicial evidence because of the dangers associated with the passage of time between the witness’s perception of the events and the drawing of the inference.

7.2.2 Opinions substantially based on specialised knowledge The rationale for excluding opinion evidence is that a person’s opinion about the facts is a mere duplication of the fact-finder’s task. However, not all opinions are equal. Some people may be better placed to draw inferences because they have special knowledge that assists them in interpreting relevant facts. Judges and (especially) jurors are not chosen as fact-finders in legal proceedings on the basis of the relevance of their knowledge to the proceedings, but rather because of their suitability as representatives of the public and as unbiased observers.8 Expert decision-makers are typically excluded from such roles because they lack these attributes. The use of generalist fact-finders is largely acceptable because of the core role played by common sense and general knowledge in most legal fact-finding. However, the courts have never denied the utility of knowledge that is not widely held: [I]f matters arise in our laws which concern other sciences and faculties we commonly call for the aid of that science or faculty which it concerns, which is an honourable and commendable thing for thereby it appears that we do not despise all other sciences but our own, but we approve of them and encourage them.9

On occasions, the courts have demanded expert assistance to resolve difficult questions, notably in the field of sentencing law.10 The dilemma for the courts is how to benefit from knowledge not generally held while retaining generalist fact-finders. Even in 1554 (when the above quotation was written!), it would have been unlikely that courts could be instructed in relevant specialised knowledge to enable them to make informed assessments of the evidence. Clearly, such instruction would be impossible today, especially when the fact-finder may be a temporary jury of lay people. A further problem is that any attempt to adduce knowledge that is the product of the communicated observations of many individuals would likely fall foul of the hearsay rule. Section 79 provides a general solution to this dilemma: 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.

This ‘expert opinion’ exception allows the fact-finder to benefit from uncommon knowledge indirectly, by permitting people who hold such knowledge to give evidence in the form of an opinion. Unlike section 78, section 79 is not limited to opinions about something the opinionholder perceived, much less to opinions that are necessary to learn what anyone witnessed.

8 See R v Sutton (1968) 53 Cr App R 128, criticising a judge for empanelling an all-female jury to rule on a manslaughter case involving the appropriate ‘handling of a baby’. 9 Buckley v Rice Thomas (1554) 75 ER 182, 191. 10 Channon v The Queen (1978) 33 FLR 433.

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In Lithgow City Council v Jackson, after holding that an ambulance report stating that a patient had fallen did not fall within section 78, the High Court remarked: There is no reason to doubt that similar evidence in suitable form, from suitably qualified experts, about the causation of injuries is admissible under s 79. Had the ambulance officers given evidence of the medical and physical details they observed, it would have been admissible. But a statement of a conclusion by them that the respondent fell from a particular place … would not have passed through the s 79 gateway into admissibility because they were not experts.

The High Court may have been too quick to dismiss the qualifications of those paramedics. The terms of section 79 are deliberately broad, eschewing the earlier common law’s focus on academic and professional disciplines and, indeed, on ‘expertise’. According to the NSW Court of Appeal, the term ‘specialised knowledge’ is ‘not restrictive; its scope is informed by the available bases of training, study or experience’;11 moreover, those available bases are deliberately defined to cover all methods of acquiring knowledge, including informal methods previously eschewed by the common law. In short, the exception covers anyone who knows something that most people do not, including, arguably, the knowledge about how people fall and the consequences of falls that paramedics are likely to acquire in the course of their work. It is possible to discern some limits on specialist evidence based on the requirement of ‘knowledge’, which can be distinguished from: •

•

•

skill: it is not enough that someone is good at drawing factual inferences, due to intelligence or practice, for example a judge or an evidence lecturer; rather, a specialist must actually know things that others do not: belief: it is not enough that someone has intuitions or feelings about the world that others do not share, for example a cynic or a religious leader; rather, a specialist’s knowledge must be the product of observation and reasoning;12 and exposure: it is not enough that someone has passively acquired some knowledge, such as looking up a topic on the internet;13 rather, an active engagement in the topic is required.14

In R v Tang [2006] NSWCCA 167; (2006) 161 A Crim R 377, the NSW Court of Criminal Appeal approved a definition of ‘knowledge’ from the leading US case of Daubert v Merrell Dow Phamaceuticals Inc, 509 US 579 (1993) as applicable to section 79:15 [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.

The requirement of ‘knowledge’ was relied upon to rule that evidence asserting that a criminal defendant had the same posture as a figure on a bank security video tape was inadmissible. The evidence was given by a specialist in the more established field of ‘facial’ comparison, but her claim to be able to compare postures was based only on assertions of personal innovation and the application of an unexplained ‘strict protocol’.

11 12 13 14 15

Adler v ASIC [2003] NSWCA 131; (2003) 197 ALR 333, [629]. R v Tang [2006] NSWCCA 167; (2006) 161 A Crim R 377, [138]. R v De Saint-Aromain (Ruling No 1) [2013] VSC 398, [11] Idoport Pty Ltd n National Australia Bank Ltd [2001] NSWSC 123, [153]. R v Tang [2006] NSWCCA 167; (2006) 161 A Crim R 377, [138], approving Daubert v Merrell Dow Phamaceuticals Inc, 509 US 579, 590 (1993).

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A further, and potentially more significant, requirement in section 79 is that the opinion must be ‘wholly or substantially based’ on the witness’s specialised knowledge. This condition aims to prevent specialist witnesses from stating opinions that are really based on general knowledge. The dangers of such overreach were noted by Gleeson CJ: Experts who venture ‘opinions’ (sometimes merely their own inference of fact), outside their field of specialised knowledge may invest those opinions with a spurious appearance of authority, and legitimate processes of fact-finding may be subverted.16

Nevertheless, applying this requirement is difficult for several reasons. Expertise is not typically demarcated into specialist and general knowledge, but often aims to incorporate both. Opinionholders can scarcely ignore their general knowledge and, indeed, may find it difficult to communicate their views without significant reference to it. Moreover, many opinions are the product of teams of experts with individual specialities, so it might be impossible for any one person to give an opinion substantially based on her own specialised knowledge.17 In Hannes v DPP (Cth) (No 2) [2006] NSWCCA 373; (2006) 165 A Crim R 151, the NSW Court of Criminal Appeal held that the requirement only applied to the opinion’s conclusion, rather than the facts and particular inferences that led to it. So, a handwriting expert was able to state that a single person wrote all the words on a document, even though the conclusion was drawn from both the shape of the letters (on which the witness was an expert) and the use of the same ink throughout. The same court later held in Gilham v The Queen [2012] NSWCCA 131 that forensic pathologists' opinions, based on their general experience of autopsies and crime scenes, that two stab wounds were likely to be made by the same person fell outside of section 79.

7.2.3 Other opinions Eyewitnesses and experts are not the only people who can give opinions in legal proceedings. Assuming the other exclusionary rules are surmounted, opinions are also admissible in the following circumstances: • • • • •

summaries of documents;18 evidence by an Aboriginal or Torres Strait Islander about the traditional laws and customs of his or her group;19 certain court findings about deaths, wills and criminal convictions;20 confessions and admissions (such as, ‘I’m guilty’, ‘It was my fault’);21 and character evidence (for example, ‘the defendant is honest’ or ‘violent’).22

Opinions on these matters are permitted even if the matters asserted by the witness can be perceived directly by the court and the opinions formed are not based on specialised knowledge. A common feature of the above topics is that the opinion-holder is likely to have much greater familiarity with the evidence than the fact-finder could achieve during the trial. The ancient requirement that criminal defendants be tried by their ‘peers’ was originally intended to ensure that the tribunal of fact had a deep familiarity with the matters to be evidenced in the trial. In

16 17 18 19 20 21 22

HG v The Queen [1999] HCA 2; (1999) 197 CLR 414, [44]. C.f. Paino v Paino [2008] NSWCA 276, [66]–[70]. Section 50(3). Section 78A. Section 92(3). Section 81. Section 110.

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contemporary times, when the virtues of familiarity have been trumped by concerns about pre-judgment, the availability of witnesses with superior insights into the evidence has instead been prized. Thus, in Smith v The Queen, Kirby J explained the advantage that two police witnesses’ recognition of the defendant in a photograph had over the jury’s in-court viewing: Members of a jury watch a person such as the [defendant] (especially where, as here, that person gives no evidence) sitting immobile in the courtroom. The police witnesses had repeatedly viewed the [defendant] in daylight. They had seen him in motion. They had observed him from different angles. They had had the opportunity to view him engaged in varying and more natural facial movements.23

The admissibility of such opinions will depend on arguments that the opinion in question falls either outside the definition of ‘opinion’ or within the margins of one of the exceptions. One approach is to classify conclusions drawn from personal observations and experiences (such as an anthropologist’s direct observations of a society: Bodney v Bennell [2008] FCAFC 63; (2008) 167 FCR 84) as statements of fact, rather than opinion. In Seltsam Pty Ltd v McNeil [2006] NSWCA 158; (2006) 4 DDCR 1, the NSW Court of Appeal applied this approach to all statements about what a witness was thinking or might have thought: I do not find it possible to see evidence given by a person about his state of mind, in an actual or hypothetical situation, as an opinion. The state of a person’s mind is a fact and remains a fact whether what is under the discussion is an actual state of mind, or the state in which a person’s mind would be in some contingency which has not happened. The strongest theme of dissatisfaction with such evidence is its lack of reliability because of its self-serving nature, given as the evidence is when it is known with hindsight that the subject is of importance to the party who gives the evidence. This source of dissatisfaction is not in my opinion a reason in principle for rejecting the evidence; if it is relevant it is admissible, and this source of dissatisfaction is to be met by taking appropriate care in deciding whether the evidence is to be believed, which remains a decision of fact.

Different considerations apply if a witness predicts what someone else might have done. Love v Roads Corporation [2014] VSCA 30 concerned a dispute about the impact of a proposed freeway on the value of the plaintiff ’s land. The plaintiff, arguing that the land’s value was affected by a decision to stop him building a quarry because of the road proposal, called the actual Minister who made that decision. The Minister was allowed to testify that he would not have ‘called in’ the quarry application but for the proposed freeway, but was not permitted to testify that he was ‘very confident’ the quarry application would have been supported by the relevant planning panel in those circumstances. The Court of Appeal held that the statement about what a different decisionmaker would have done ‘could only have been an expression of his own opinion’ and that it didn’t fall within section 79 as, ‘[h]e was, clearly, an experienced planning Minister, but he did not profess any expertise as a town planner’. Two alternatives that might support the admissibility of an opinion drawn from a person’s familiarity with a fact of interest to the court are to argue that the opinion is a necessary way of learning what the witness perceived pursuant to section 78 or is an ‘ad hoc’ form of expertise pursuant to section 79 (for example, a translator’s ability to identify particular voices on a tape, acquired from repeated listening to that tape).24 In Honeysett v The Queen [2013] NSWCCA 135, an academic compared CCTV footage of a participant in a bank robbery to film and still images of the accused at a police station. He testified that he identified eight common anatomical features and no discernable differences between the two figures. In response to the defendant’s argument that the academic’s expertise (in anatomy) 23 Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650, [42]. 24 See R v Leung & Wong [1999] NSWCCA 287; (1999) 47 NSWLR 405. For a critique, see G Edmond and M San Roque, ‘Quasi-justice: Ad Hoc Expertise and Identification Evidence’ (2009) 33 Criminal Law Journal 8.

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and his experience (in studying CCTV footage in past cases) could not support such opinions (when made about a clothed figure wearing a pillow on his head), the Court of Criminal Appeal held: In addition to his specialised knowledge based upon his training, study or experience occurring prior to the present case, Professor Henneberg’s detailed consideration over a lengthy period of the CCTV footage in the present case rendered him an ad hoc expert … His individual and detailed examination of the footage could be expected to have put him in a superior position to that of the jury which would have had a collective viewing over what would, in practical terms, be likely to have been a far shorter time. Professor Henneberg’s prior training, study and experience would of course have added to that advantage.

The alternative view is that opinions that fall outside of the boundaries of the exceptions to the opinion rule are simply inadmissible, no matter how helpful they may be. For example, despite his positive view of the utility of the recognition evidence in Smith, Kirby J still held that it was excluded by the opinion rule (after ruling that it did not satisfy the exception in section 78). He explained that mere relevance is an insufficient basis for the admission of an opinion:25 Some highly relevant evidence is excluded from consideration of decision-makers in court, particularly in jury trials. It is excluded for reasons of principle or policy that outweigh relevance.

The authors’ view is that the essentially pragmatic scope of the opinion rule demands an equally pragmatic approach to its boundaries and exceptions. What is vital is that all marginal opinions are carefully examined to ensure that their probative value outweighs the risk of unfair prejudice. Unfortunately, such an examination did not occur in Honeysett, as the accused based his appeal entirely on the opinion rule and its exceptions, rather than the rules on prejudicial evidence in Part 3.11 of the uniform evidence legislation (see Chapter 16: Mandatory and Discretionary Exclusions).

7.3 MANAGING EXPERT OPINIONS Section 79 avoids fact-finding in ignorance of others’ specialised knowledge, but it creates a different problem: how will evidence of an expert’s opinion be assessed by the fact-finder, given that, by definition, the fact-finder—as well as the parties, lawyers and the judge—lacks the expertise on which the opinion is founded? Concerns about this inherent difficulty are heightened by two fears about expert evidence that are repeatedly stated by judges and commentators: First, fact-finders may approach expert testimony less critically than that of other witnesses. In its leading judgment on expert evidence, the Supreme Court of Canada observed: Dressed up in scientific language which the jury does not easily understand and submitted through a witness of impressive antecedents, this evidence is apt to be accepted by the jury as being virtually infallible and as having more weight than it deserves.26

This fear was expressed more succinctly by another judge’s description of expert testimony as ‘evidence cloaked under the mystique of science’.27 At its extreme, the danger extends beyond mere lax finding to the wholesale abdication of the tribunal of fact’s role in the proceedings, a point made by the NSW Court of Criminal Appeal:

25 Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650, 670, [62]. 26 R v Mohan [1994] 2 SCR 9, 21. 27 R v Bland [1987] 2 SCR 398, 434 (La Forest J).

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Even though the spurious nature of the authority may be apprehended, and allowance made, there is a potentially more insidious risk that the exercise required of the Court or jury will be subverted through adoption of a shortcut, by acceptance of the opinion of another, without careful evaluation of the steps by which that opinion was reached. 28

Second, expert testimony may be unreliable. The conditions attached to the admission of expert opinions in section 79 are aimed at ensuring that witnesses who express expert opinions have the capacity to do so. However, a witness’s capacity to form opinions based on specialised knowledge is no guarantee of the quality of either the witness’s knowledge or opinions. Some experts may give misleading or even false testimony, unwittingly or otherwise, especially in favour of the parties who call (and pay) them. Scepticism about expert evidence gains particular support in relation to criminal justice, where flawed forensic testimony (produced by professionals and even professions whose entire living depends on being able to support criminal prosecutions) has been responsible for significant numbers of wrongful convictions. Indeed, in 2009 the United States National Academy of Sciences stated the following damning verdict about all but one forensic science: With the exception of nuclear DNA analysis … no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.29

Arguably, forensic evidence should be placed alongside identification and confessional evidence as demanding special precautions when admitted in criminal trials. Similar, though less extreme, concerns could be raised about unreliable expert testimony in civil trials, especially on the topics of causation and damages. The common law’s response to these concerns has often been described as a series of specific ‘rules’ for expert testimony: experts must talk from a ‘field of expertise’, must ‘base’ their opinions on proven facts and must not opine on ‘common knowledge’ or the ‘ultimate issue’. These rules— to the extent that they ever had such a status at common law—were all omitted or rejected in the uniform evidence legislation. Instead, the problem of expertise is to be managed through the application of the opinion rule, the specialised knowledge exception, the discretions in sections 135–730 and (outside of evidence law) through new procedures and practices in courtrooms and in the legal and expert professions. Evidence law’s regulation of expert testimony can only be fully assessed through detailed treatments of case law on individual fields of expertise, of which Freckelton and Selby’s lengthy treatises on expert evidence are the prime Australian example.31 Lacking the space for such a detailed appraisal, this chapter instead focuses on the three fundamental aspects of expert opinions: • • •

the subject-matter of the expert opinion; the factual foundations of the expert opinion; and the communication of the expert opinion.

The overlapping regulation of each of these matters in contemporary courts will be discussed, in turn, below.

28 Hannes v Director of Public Prosecutions (No 2) [2006] NSWCCA 373; (2006) 165 A Crim R 151, [290]. 29 National Research Council of the National Academies, Strengthening Forensic Science in the United States: A Path Forward, 2009, Washington, DC: National Academies Press, S-5. 30 See Chapter 16: Discretionary and Mandatory Exclusions. 31 See I Freckelton and H Selby, Expert Evidence: Law, Practice, Procedure and Advocacy, 2013, Sydney: Thomson Reuters.

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7.3.1 Subject-matter One of the key differences between section 78 and section 79 is that the exception for lay opinions is restricted to matters that the witness has directly perceived, whereas expert opinions may be about any relevant topics on which the expert’s specialised knowledge can be brought to bear. This relative freedom gives experts a greater ability to impinge on the proper role of the tribunal of fact. At common law, experts are (in theory) barred from offering opinions on matters that lay people would already know about (‘common knowledge’) or on matters that would determine the outcome of the trial (‘ultimate issues’). However, such rules are rejected by section 80: 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.

The effect of section 80 was significant in long-running case between two chocolate companies over the use of the colour purple. The trial judge ruled that an opinion by a marketing academic about the various errors that customers might make because of chocolate packaging was inadmissible: Chocolate is an inexpensive, everyday product sold in hundreds of thousands of retail outlets throughout this country. Virtually the whole of the Australian population over the age of about eight years are purchasers or potential purchasers … The questions thrown up by this case are quintessentially questions of fact within the experience and knowledge of a trier of fact.

But the full Federal Court held that this approach was barred by section 80(b) and that there was no basis for rejecting the expert’s evidence as confusing or time-wasting under section 135.32 In jury trials, there would be more scope to exclude evidence described in either branch of section 80 as potentially prejudicial under the discretions in sections 135 and 137, because of the increased risk that the jury will inappropriately defer to the expert on such matters. At common law, both the ‘ultimate issue’ and ‘common knowledge’ rules were more honoured in the breach than the observance, such as in family law matters where experts invariably testify as to the best interests of children. However, they played a historical role in limiting the evidence of psychologists and psychiatrists about ‘ordinary’ human behaviour. These limitations, while lauded by sceptics of those fields, have also been criticised on the ground that folk wisdom about people’s thoughts and behaviour may be inadequate or incorrect when applied to people behaving in unusual circumstances, such as the conduct of people during or after a crime. Responding to lingering concerns that such evidence still faced barriers despite section 80, the expert evidence exception in section 79 was amended to provide that: • •

‘specialised knowledge’ includes such knowledge of ‘child development and child behaviour’ and, specifically, ‘the impact of sexual abuse on children’;33 and an ‘opinion’ includes one ‘relating to’ these general topics (even if it is not applied to the specific children involved in the case).34

The law commissions acknowledged that such evidence may be dangerous (if a particular behaviour is used to infer that a person was or was not abused), but reasoned that such risks are best managed by judicial directions and the exercise of the discretions.35 The Victorian Court of Appeal has ruled that a similar local provision extends to an expert’s opinion that a complainant’s detailed account 32 Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2007] FCAFC 70; (2007) 159 FCR 397. 33 Section 79(2)(a). In Victoria, expert evidence about ‘the nature of sexual offences’ and the behaviour of alleged victims is admissible: Criminal Procedure Act 2009 (Vic), s 388. 34 Section 79(2)(b). 35 Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005) [9.157].

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of abuse when she was three years old could not be accurate as children of that age cannot retain such detailed memories.36 The permissible subject-matter of expert opinions is still limited by the constraints of section 79 (notably the requirement that any opinion must be ‘wholly or substantially based’ on specialised knowledge) and (especially in jury trials) the discretions to exclude evidence whose costs outweigh their benefits. These general rules potentially operate in a similar way to the common law rules abolished by section 80. For example, in relation to section 79(2), the Victorian Court of Appeal recently cautioned that:37 one would not ordinarily expect an expert to be asked to express an opinion concerning the complainant’s actual behaviour after the alleged offending conduct or the reasons of a parent in the case before the court for not accepting the complainant’s claim or the complainant’s actual reaction to the rejection of her claim. These are questions which are within the jury’s province to resolve. The occasion should be relatively rare where an expert should be invited to express an opinion as to the actual behaviour of the victim or the victim’s parent and whether it advanced the probabilities of a fact in issue. Where a party seeks to have an expert go so far, the obligation of the trial judge under s 137 of the Evidence Act to exclude evidence if its probative value was outweighed by its prejudice may assume greater significance.

The subjects that experts can testify about may also be limited by other exclusionary rules of evidence. An example is HG v The Queen [1999] HCA 2; 197 CLR 414, where the defence in a child sexual abuse prosecution sought to call an expert who had concluded, after interviewing the child complainant and her mother, that the child had been abused by someone other than the defendant in the past and that the complaints about the defendant may have been ‘transferred’ from the previous abuse. The High Court held that New South Wales’s rape shield law barred the expert from stating that the complainant had been abused in the past. A majority of the court then ruled that none of the expert’s testimony was admissible because the finding about the previous assault was an essential step in the expert’s theory. Gaudron J also held that adducing expert evidence about the possible unreliability of the complainant’s testimony due to this transference was forbidden by the credibility rule’s ‘finality’ principle (although that rule has since been relaxed).38

7.3.2 Foundational facts Opinions under section 78 are based on matters the witness directly perceived. By contrast, opinions admitted under section 79 may be drawn from a variety of facts, including things the expert has seen directly, things the expert is told about (and asked to assume) and things the expert has read or studied on an earlier occasion. The worth of the opinion is obviously bound up with the worth of these various foundational facts. Some argue that the common law requires that the foundational facts behind an expert opinion must satisfy a ‘basis’ rule, which is expressed in the following form in New Zealand’s evidence statute: If an opinion by an expert is based on a fact that is outside the general body of knowledge that makes up the expertise of the expert, the opinion may be relied on by the fact-finder only if that fact is or will be proved or judicially noticed in the proceeding.39

However, no such rule is either endorsed or rejected in the uniform evidence legislation. Rather, the Australian Law Reform Commission took the view that such a rule has never been—and 36 37 38 39

R v BDX [2009] VSCA 28; (2009) 24 VR 288. MA v The Queen [2013] VSCA 20, [100]. See Chapter 11: Credibility. Evidence Act 2006 (NZ), s 25(3).

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should not be—part of Australia’s law of evidence. That is, the absence of proof of all the facts underlying an opinion is a matter that only affects the weight that should be given to the opinion. Alas, as Heydon J has observed, if the Commission’s view that the basis rule was never a part of the common law was wrong (as he thought it was), then the Commission’s intentions that the rule not be a part of the uniform evidence legislation may be thwarted by judges who read section 79 as endorsing the previous common law (as he did).40 Apart from Heydon J, the High Court is yet to address whether or not the basis rule applies under the uniform evidence law. Regardless, the problem remains of how to prove the many facts relied upon by an expert. A particular difficulty is the hearsay rule. If the expert has directly perceived the relevant matters— for example, by viewing a dead body—then there is no hearsay problem. But if, as is often the case, the expert has been told about those matters, then the rule will need to be circumvented. Regular hearsay exceptions may not be applicable, as the facts given to the expert may be second-hand or based on representations made for the purposes of litigation. Relying on other witnesses to testify as to those facts will not always be practical, due to unavailability, expense or differing memories. However, section 60 (see Chapter 5: Hearsay Evidence) may exempt all such representations from the hearsay rule, on the theory that they are admissible for the non-hearsay purpose of allowing the fact-finder to understand why the expert reached a particular opinion. Such a use is controversial, because it permits the introduction of hearsay (for example, the self-serving statements of a party to a medical expert) without any test of reliability. Indeed, Sperling J of the NSW Supreme Court has advocated barring such a practice in jury trials through the use of section 136: Where such evidence is in the form of a bare statement of facts or where facts are stated as having been provided by some other person or persons, section 60 operates to make the account evidence of the truth of the facts so stated. That is not so if the expert says that certain facts are assumed for the purpose of providing the opinion. A disadvantage should not be incurred in legal proceedings by happenstance. If the facts stated are contentious, it will ordinarily be unfair that the opposite party is fixed with assumption evidence as evidence of the truth of the facts stated by reason of those facts having been stated in one form rather than the other.41

A less tractable problem arises when foundational facts are inadmissible for other reasons. In R v Howard [1989] 1 SCR 1337, the Supreme Court of Canada rejected a prosecution proposal to put otherwise inadmissible facts (including third party admissions contrary to a defence expert’s testimony) to that expert in cross-examination, a conclusion excoriated by the dissent for isolating the expert (and, hence, the jury) from relevant facts. The NSW Court of Appeal has held that the fact that an expert has taken inadmissible evidence into account is not fatal, so long as the expert is able to provide an adequate justification for an opinion without recourse to those facts.42 Separate considerations apply to the facts that comprise the expert’s ‘specialised knowledge’. These may well be derived from literally thousands of hearsay representations, drawn from journal articles, textbooks, training courses and the advice of colleagues, many second- or third-hand. The admissibility of such sources (which may breach not only the hearsay rule, but also the opinion and tendency rules, among others) is typically simply assumed. At common law, an informal hearsay exception was developed for articles and similar representations by analogy to the business records exceptions,43 but no such exception exists under the uniform evidence legislation; section 69 will

40 41 42 43

Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588, [66], [127]. Roach and Ors v Page and Ors (No. 11) [2003] NSWSC 907, [74]. ASIC v Rich [2005] NSWCA 152; (2005) 218 ALR 764. R v Abadom [1983] 1 All ER 364; PQ v Australian Red Cross Society [1992] 1 VR 19, 36.

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only apply if the relevant material is adduced in documentary form. It may be that section 60 can be applied without controversy to such material. The common law’s acceptance of hearsay evidence about the general foundations of expert opinions came at a price: a ‘field of expertise’ rule, designed to weed out unsafe instances of specialised knowledge. While the common law’s rule has never been clearly stated, modern discussion centres around two competing approaches from the United States of America: a test that looks to whether the knowledge in question was ‘sufficiently established to have gained general acceptance in the particular field in which it belongs’44 and a more recent test (based on the Federal Rules of Evidence), which considers ‘general acceptance’ alongside factors such as testability, peer review and evidentiary standards in furtherance of a judicial assessment of ‘evidential reliability’.45 However, even though the uniform evidence legislation was inspired by the US’s Federal Rules, its drafters eschewed such assessments, arguing that they are typically matters of weight, rather than admissibility. Rather, such considerations may be significant in the application of the discretionary rules. The NSW Court of Criminal Appeal has observed that ‘[a] reading of the cases suggests that the strictness with which the courts approach questions of admissibility of opinion evidence is directly related to the doubtfulness of the claim to special knowledge’,46 an approach it attributed to the Part 3.11 discretions rather than section 79.

7.3.3 Communication A modern trend is to place part of the burden of regulating expert evidence on the experts themselves, the parties who call them and the professional bodies that accredit them. Guidelines set out in judgments and rules of court impose ethical standards of behaviour on experts and parties who call them, covering their duties to the court, full disclosure, pre-trial conferences and the form and content of expert reports, with exclusion of the evidence as a potential remedy for failure to comply.47 In General Medical Council v Meadow [2006] EWCA Civ 1390; [2007] 2 WLR 286, the English Court of Appeal held that experts who testify in court cannot rely on the traditional immunity of witnesses to civil suit to avoid being disciplined by a professional regulator. In that case, however, it rejected the suspension of the medical practice of renowned expert Sir Roy Meadow, who cited incorrect statistics about SIDS in criminal trial testimony, resulting in the wrongful conviction of a woman for murdering her two sons. The blame for Meadow’s (and the jury’s) error, the Court held, rested equally on the trial lawyers for both prosecution and defence and the various judges who heard the case and its appeal. By contrast, in R v Wood [2012] NSWCCA 21, the NSW Court of Criminal Appeal was highly critical of a physicist who testified in a murder trial. The Court held that a book he published after the trial revealed that he became involved in the investigation because he was certain the defendant was guilty and that he saw his task as eliminating the defence hypothesis that the deceased committed suicide. Courts have tracked these procedural developments with a tightening of rules for admissibility in relation to how expert opinions are presented in testimony and reports. In Dasreef 44 Frye v United States, 293 F 1013 (1923) c.f. Parker v The Queen [1912] HCA 29; (1912) 14 CLR 681. 45 Daubert v Merrel Dow Pharmaceuticals, Inc 509 US 579 (1993) c.f. R v J-L J [2000] 2 SCR 600; Law Commission, Report No 325: Expert Evidence in Criminal Proceedings in England and Wales, London: The Stationery Office, 2011. 46 Hannes v DPP (Cth) (No 2) [2006] NSWCCA 373; (2006) 165 A Crim R 151, [292]. 47 See The Ikarian Reefer [1993] 2 Lloyd’s Rep 68; Federal Court Rules (Cth), Orders 34, 34A and 34B; Family Law Rules 2004 (Cth), Part 15.5; Court Procedures Rules 2006 (ACT), Part 2.12; Uniform Civil Procedure Rules 2005 (NSW), Schedule 7; Supreme Court (General Civil Procedure) Rules 2005 (Vic), Order 44; Civil Procedure Act 2010 (Vic), Part 4.6.

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Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588, the High Court endorsed the view stated by Heydon JA in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 that: the expert’s evidence must explain how the field of ‘specialised knowledge’ in which the witness is expert by reason of ‘training, study or experience’, and on which the opinion is ‘wholly or substantially based’, applies to the facts assumed or observed so as to produce the opinion propounded.

The majority observed that these ‘requirements [can] be met in many, perhaps most, cases very quickly and easily’, giving the example of medical testimony, where these requirements will be discharged by identifying a doctor’s qualifications and the subject-matter of her diagnosis. By contrast, the evidence in Dasreef was an opinion by a retired chemical engineer about the approximate number of grams per cubic metre in a cloud of dust visible in a video and the proportion of the dust that would be small enough to be ‘respirable’. The Court held that ‘[t]here was, in these circumstances, no footing on which the primary judge could conclude that a numerical or quantitative opinion … was wholly or substantially based on specialised knowledge based on training, study or experience’. In Makita itself (and in his later concurrence in Dasreef), Heydon JA went further, holding that ‘the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached’. The effect of this requirement would be to require all expert opinions to be expressed as a series of reasoned arguments, rather than (as Heydon JA termed it), a mere ipse dixit (say so). This rule has the potential to impose US-style standards of ‘evidentiary reliability’ in Australia. In Makita, for instance, a trial judge was held to have wrongly relied on an academic’s report that concluded that a person’s fall was due to ‘the inadequate frictional grip afforded by the very smooth concrete stair treads for her footwear’. The report, the NSW Court of Appeal held, failed to explain how the physicist’s measurements of the stairs related to his conclusions and, in particular, did not account for those measurements falling within the applicable building codes or explain why the fall was not produced by the plaintiff ’s footwear. Such matters have traditionally been regarded as questions for the fact-finder (assisted by crossexamination by the party opposing the expert witness), rather than for a trial judge deciding admissibility.48 The High Court’s endorsement of Makita in Dasreef omitted this aspect of Heydon JA’s analysis and the majority pointedly observed: The admissibility of opinion evidence is to be determined by application of the requirements of the Evidence Act rather than by any attempt to parse and analyse particular statements in decided cases divorced from the context in which those statements were made.

Indeed, the Makita requirements could never be met for many common types of expertise (including opinions derived from experience rather than study, such as the scene analysis in Makita) and would be onerous in many other cases. The exclusion of useful opinions because there is room for improvement was described in one US fingerprinting case as making ‘the best the enemy of the good’.49 That being said, Heydon JA’s approach might make it easier for courts and lawyers to appreciate flaws in commonly accepted expert evidence, such as the stunning conclusion by the US National Academy of Sciences, quoted earlier. In R v Wood, for example, the NSW Court of Criminal Appeal held that a physicist’s evidence about the possible trajectory of a body found below a cliff had little value because the court found that it rested on doubtful factual assumptions about the crime scene, the defendant’s strength and the victim’s consciousness. Given this low 48 R v Jarrett (1994) 62 SASR 443, 453. 49 United States v Crisp, 324 F.3d 261 (2003), 270.

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probative value, his broader ethical lapses may have been grounds for excluding the evidence as confusing or unfairly prejudicial, and in any case meant that the jury’s guilty verdict was unsafe. There is a considerable tension between the desire for experts to expose their reasoning and the purpose of section 79, which is to give courts the benefits of others’ study, training and experience. If the only expert opinions that a court can consider are those where the expert’s reasoning is fully accessible to non-experts, then the court will be denied the benefit of opinions that draw on knowledge that is beyond explanation to lay people. On the other hand, if lay fact-finders cannot understand experts’ reasons, then how can they determine whether or not to accept their conclusions? The courts have largely rejected arguments that expert evidence should be excluded or ignored merely on the ground that there are significant barriers to its effective assessment by the fact-finder. In the major High Court case on this issue, Gummow and Callinan JJ did so in these terms: Juries are frequently called upon to resolve conflicts between experts. They have done so from the inception of jury trials. Expert evidence does not, as a matter of law, fall into two categories: difficult and sophisticated expert evidence giving rise to conflicts which a jury may not and should not be allowed to resolve; and simple and unsophisticated expert evidence which they can. Nor is it the law, that simply because there is a conflict in respect of difficult and sophisticated expert evidence, even with respect to an important, indeed critical matter, its resolution should for that reason alone be regarded by an appellate court as having been beyond the capacity of the jury to resolve.50

The problem of the lay assessment of expertise, while longstanding and perhaps incapable of legal remedy, remains significant and troubling.

SUMMARY Under the uniform evidence legislation: • •

evidence of a witness’s opinion about a relevant fact is inadmissible to prove that fact; the main exceptions to this rule are that: – a witness can express an opinion about a matter or event perceived by the witness where doing so is necessary to inform the court about what the witness perceived; and – a witness can state an opinion that is wholly or substantially based on specialised knowledge acquired through study, training or experience, so long as the witness also sufficiently explains how the opinion satisfies this requirement. • an expert opinion may be admitted even though: – it concerns a matter of common knowledge or an issue the fact-finder must determine; – its foundational facts are not proven or rely on potentially unreliable scientific or technical knowledge; and – the expert’s reasoning has not been explicitly stated or is otherwise inaccessible to the fact-finder. However, these matters may provide a basis for discretionary exclusion under sections 135–7.

50 Velevski v The Queen [2002] HCA 4; (2002) 187 ALR 233, [182].

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s 76 Is the evidence the opinion of a person?

NO

YES

s 77 Is the evidence admissible to prove a fact other than the one about which the opinion was expressed?

THE ADMISSIBILITY OF THE EVIDENCE IS NOT AFFECTED BY PART 3.3

FIGURE 7.1 OPINIONS

154 PART 2 ADMISSIBILITY

YES

NO

s 78 Is the opinion based on what the person saw, heard or otherwise perceived?

YES

Is the opinion evidence necessary to obtain an adequate account or understanding of what the person perceived?

YES

YES

Is the opinion about the existence or content of the traditional laws or customs of the group?

YES

NO No

s 79A Is the person a member of an Aboriginal or Torres Strait Islander group?

NO ss 50(3), 81, 92(3), 110, 111 Does the evidence satisfy the exceptions for complex documents, admissions, judgments and convictions or character?

YES

YES

NO

s 79 Does the person have specialised knowledge?

NO

YES

Is the specialised knowledge based on that person’s study, training or experience?

NO

YES

Is the opinion wholly or substantially based on that knowledge?

NO

YES

Does the expert evidence satisfy the discretionary considerations discussed at (7.3)?

NO

THE EVIDENCE CANNOT BE USED TO PROVE THE FACT ABOUT WHICH THE OPINION WAS EXPRESSED

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ADMISSIONS

8

INTRODUCTION Part 3.4 (on ‘admissions’) is concerned with a body of evidence of great practical significance in litigation: information sourced from one side of the case that is helpful to the other side of the case. In contrast to the self-serving, third party or circumstantial evidence that parties often have to rely upon, evidence from the other side offers a personal and highly credible insight into the facts. A key example is out-of-court statements by a criminal defendant wholly or partly confessing to a crime. Part 3.4 differs from most other parts of Chapter 3 of the uniform evidence law. Rather than setting out an exclusionary rule for admissions followed by a set of exceptions to that rule, it instead commences with exceptions to two rules set out in earlier parts, followed by limitations on those exceptions, a set of further exclusionary rules (including a rule that is not about admissions) and (scattered throughout) some rules about proof. As a result, Part 3.4 is both difficult to read and complex to apply (unnecessarily so, in the authors’ view). Part 3.4 (and hence this chapter) cannot be read on its own. Rather, five other evidence law regimes are significant to the law on admissions: • • •

• •

the hearsay rule, discussed in Chapter 5: The Hearsay Rule and Chapter 6: Hearsay Exceptions (because many admissions are hearsay); the opinion rule, discussed in Chapter 7: Opinion (because some admissions are opinions); the general discretions to exclude evidence, to be discussed in Chapter 16: Discretionary and Mandatory Exclusions (because evidence sourced from the other side of the case, especially from criminal defendants, often raises concerns about probative value, prejudice and propriety); local laws governing how criminal investigators interact with suspects, discussed here and also in Chapter 16: Discretionary and Mandatory Exclusions); and evidence law’s regulation of unreliable evidence, discussed in Chapter 19: Warnings and Information.

This chapter deals with all the rules in Part 3.4 as well as local statutory rules on the recording of admissions to investigators. It divides the analysis into three topics: first, rules about whether or not the court can draw ‘adverse inferences’ from what someone said; second, rules excluding evidence of admissions because of the circumstances in which they are made; and third, rules on how an admission may or must be proved.

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8.1 ADVERSE INFERENCES Part 3.4 is primarily concerned with evidence of an ‘admission’. The Dictionary defines an admission as: 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.

Admissions, being ‘previous representations’, are within the same category of evidence that is regulated by the hearsay rule. However, while the hearsay rule applies when a court infers facts that the maker intended to assert, the definition of admission covers previous representations that support at least one inference that is ‘adverse’ to a particular party. So, while the categories of hearsay and admissions have a substantial overlap, there are many intentional assertions that are not adverse (and hence are hearsay but not admissions) and many adverse inferences that are not intentional assertions (and hence may be admissions but are not hearsay). Examples of adverse inferences include using a person’s previous representations to prove: • • • •

facts that are part of the other side’s case; circumstantial facts that assist the other side in proving its case; facts that damage the credibility of a party or a party’s witness; and facts about the other party that reveal his or her doubts about whether he or she is on the right side of the law.

For example, in R v Whyms [2010] ACTSC 91, an accused’s response to a question about the address of a house he burgled that it was ‘Somewhere in Fadden—in Kaleen, sorry’ was held to be capable of being an admission on the basis that the accused’s ‘slip of the tongue’ supported the prosecutor’s argument that he had actually burgled houses in both of those Canberra suburbs. In Wily v Fitz-Gibbon [1998] FCA 121 a bankrupt person, who had just been accused of hiding some assets, went to a bathroom and removed the gold Rolex watch he had been wearing. The Federal Court held that evidence of this conduct was capable of being an admission. (Note that neither of these inferences is a hearsay inference.) Part 3.4 both facilitates and limits the use that can be made of adverse inferences. This section first addresses how Part 3.4 facilitates the use of inferences adverse to the party who made an admission via an exception to the hearsay and opinion rules. It then addresses a separate rule limiting a different category of adverse inferences that may arise from certain evidence of a person’s silence.

8.1.1 Adverse inferences from a party’s previous representation Section 81(1) of the uniform evidence legislation provides an exception to two rules: The hearsay rule and the opinion rule do not apply to evidence of an admission.

The exception to the hearsay rule allows a court to use an admission to infer an adverse fact that the person who made the admission intended to assert. The exception to the opinion rule permits an opinion to be used to infer adverse facts that the maker inferred herself. However, while the hearsay and opinion rules apply to everyone’s out-of-court acts and opinions, the definition of

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admissions only covers the out-of-court acts or opinions of a party to litigation; that is, the plaintiff and defendant in civil proceedings and the defendant(s) in criminal proceedings. The party’s representation may be made long before the litigation commenced (and, hence, long before the maker became a party), including quite informal remarks or conduct, such as: • • •

words exchanged before, during or after the event in question; conversations with others about that event or other relevant matters; and interactions or interviews with police or other investigators.

Admissions may also be made when litigation is ongoing, such as: • • •

pre-trial pleadings in civil cases; testimony at a pre-trial hearing, such as an interlocutory application; and a guilty plea made by a criminal defendant that he or she later withdraws.

However, a party’s testimony during the trial itself is not an admission as it is not a previous representation, and therefore section 81 is not available for such testimony. Of course, it is not hearsay to use a person’s in-court testimony to prove facts that the witness intended to assert, including adverse ones, but any adverse opinions in a party’s testimony will still have to satisfy the opinion rule. Crucially, the definition of admissions (and hence the exception in section 81(1)) only applies to previous representations that are adverse to the party who made them. Admissions have long been a principal exception to the hearsay rule, on the ground that they are reliable (because people are unlikely to lie in ways that harm their own future litigation interests) and necessary (because people may choose not to say things in court that harm their chances of winning a court case). Similar reasoning about reliability, as well as the party’s likely familiarity with matters that are adverse to their interests, support the new exception to the opinion rule. (A note to section 81 states that an example of an opinion that falls within the exception is a witness’s opinion that the person who made the admission was sane. However, it is not clear whether or why a third party opinion about someone else’s admission is admissible under section 81.) Despite this rationale, the actual words of the admission may be said by other people. A straightforward and uncontroversial situation is where a party agrees with something someone else said. In this situation, what the other person said can be adduced for the limited purpose of understanding what the party agreed with, a use that would not infringe the hearsay or opinion rules. In R v Bormann [2010] ACTSC 145; (2010) 244 FLR 105, the defendant and her partner attended an interview at Centrelink. Her partner, who was the main speaker due to the defendant’s poor English, made admissions about their relationship. Refshauge J held that the defendant had effectively made those admissions herself by agreeing to let her partner speak for her, not contradicting his statements and signing a document that recorded them. More controversially, evidence law also sometimes permits the use of others’ statements as admissions when the party was not present and did not even know that the statement was made. It achieves this by deeming certain statements by others to be made by the party. One sort of situation, covered by sections 87(1)(a) and (b), is when one person is authorised to speak on behalf of the party, either via a specific permission to speak (for example the defendant’s conduct in R v Bormann), or a general relationship (such as employment) that implicitly allows one person to speak for another. In Pacific Resources International Pty Ltd v UTI (Aust) Pty Ltd [2012] NSWSC 1083, the plaintiff ’s solicitor responded to the defendant’s request for particulars in a contractual dispute with a letter stating that the terms of the contract were a set of standard terms included with the letter. Although the solicitor had received those standard terms from a third party who had received them from the plaintiff, she had had not confirmed with the plaintiff that those were

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the terms of the contract. The court nevertheless held that the solicitor’s letter was admissible as an admission by the plaintiff that those were the terms of the contract. Section 87(1)(c) sets out a much broader extension, covering the situation when ‘the representation was made by the person in furtherance of a common purpose (whether lawful or not) that the person had with the party or one or more persons including the party’. This extension covers a wide variety of relationships between the speaker and the party, from business partnerships to criminal associations. No formal authority is required for one person to speak on behalf of another in this situation, but not all adverse statements will count as admissions for this purpose. Rather, the adverse statement must somehow ‘further’ the joint enterprise. On the question of how to prove whether or not an admission falls within section 87, see [8.3.4], below. Clearly, section 81 is very helpful to the party who didn’t make the admission. However, the section may also benefit the party who made the admission in two ways. First, because an admission may have multiple uses—some bad for the maker and some good—section 81(1)’s exception for all admissions may allow a court to draw favourable inferences from such an admission. Second, section 81(2) sets out a further exception that covers some representations that are neither made by a party nor adverse to a party’s interests: The hearsay rule and the opinion rule do not apply to evidence of a previous representation— (a) that was made in relation to an admission at the time the admission was made, or shortly before or after that time; and (b) to which it is reasonably necessary to refer in order to understand the admission.

In Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2009] NSWSC 769; (2009) 258 ALR 598, the plaintiffs had adduced a statement written by the defendant’s lawyers containing an admission about the defendant’s knowledge of a crucial development approval. The defendants sought to rely on section 81(2) to support the admission of a letter by another lawyer of the defendant outlining changes the defendant wanted made to that statement. However, Barrett J rejected this argument because the letter was written ten months after the original statement and because the second lawyer’s letter was not needed to understand the statement drafted by the first lawyer. Unless section 81(2) applies, section 81 cannot be used to allow a court to draw hearsay and opinion inferences from statements that are wholly favourable to the person who made them. That is because there’s no reason to think that such statements are reliable. As well, if there happen to be more than two parties to a proceeding (for example, if there are two defendants), then the exception in section 81 does not apply to the case of a ‘third party’ (who neither made the admission nor adduced it). This principle follows from the fact that such proceedings involve two separate trials, meaning that section 81 is not satisfied in the trial involving the third party. But, in any case, this outcome is also specified by section 83(1): Section 81 does not prevent the application of the hearsay rule or the opinion rule to evidence of an admission in respect of the case of a third party.

So, if an admission reveals facts that are adverse to both the maker and a co-defendant, then section 81 only permits the court to draw hearsay and opinion inferences against the maker but not the co-defendant. Section 83(2) allows the third party to consent to the use of the admission in his or her case. A third party may wish to do this if the admission is actually positive for the third party, although section 83(3) provides that the third party’s consent must cover the whole of the admission, good and bad. Because these constraints only apply to admissions admitted under section 81, they do not apply to admissions that are admitted in some other way, for example because they fall outside of the hearsay and opinions rules or within their exceptions. Two important examples of hearsay

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exceptions that may cover admissions are Section 64 and 66’s exceptions for prior statements by witnesses who testify and section 65(2)(d)’s exception for prosecution evidence of admissions against interest by unavailable witnesses (arguably including criminal defendants, who are incompetent to testify for the prosecution). While these exceptions are subject to tougher proof requirements than section 81, they are not subject to section 82’s ban on using admissions against third parties. However, many of the most important protections in Part 3.4 for criminal defendants (such as sections 84, 85, 86 and 90) as well as the statutory recording requirements, apply to all admissions, regardless of what rules were used to admit them.

8.1.2 Adverse inferences from a person’s silence A further category of adverse inferences is separately regulated by section 89(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.

This provision is not concerned with admissions, although it may cover some instances of those. Rather, it is concerned with inferences from a particular sort of out-of-court act: silence by anyone. In contrast to section 81, which permits inferences to be drawn despite other rules of evidence, section 89(1) forbids some otherwise permissible inferences. Section 89(1) is widely assumed to be an equivalent to the common law’s ‘right to silence’, which was described by a majority of the High Court in the following terms in Petty and Maiden v The Queen: A person who believes on reasonable grounds that he or she is suspected of having been a party to an offence is entitled to remain silent when questioned or asked to supply information by any person in authority about the occurrence of an offence, the identity of the participants, and the roles which they played. An incident of that 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. To draw such an adverse inference would be to erode the right to silence or to render it valueless.1

This common law rule is indeed largely picked up by section 89(1). As well, section 89(4)’s definition of ‘inference’ mirrors the breadth of the common law set out in Petty and Maiden in terms of the sort of ‘unfavourable’ inferences that are banned. Not only is a court barred from treating a person’s silence as an admission of fact, but also from treating it as: • •

a reason to think that the person knew that he or she had broken the law; or a reason to cast doubt on a later account the person gave.

Pursuant to the ban, counsel and the trial judge are barred from comments and lines of questioning that encourage the jury to draw such inferences, and evidence of silence will be completely inadmissible unless it (somehow) has a use that is not adverse to a party.2 In Huggins v The Queen [2004] UKPC 7, the Privy Council considered whether a judge’s direction that the jury was ‘entitled to examine [the accused’s] reaction and his demeanour’ in the ‘no comment’ portions of his police

1 Petty and Maiden v The Queen [1991] HCA 34; (1991) 173 CLR 95, 99. 2 Section 89(2).

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interview breached the Barbados equivalent to section 89(1). It held that there was no breach, because the accused’s ‘nonchalant’ demeanour during the interview was ‘helpful to the defence’ and, accordingly, any direction to avoid adverse inferences ‘would have been confusing and possibly prejudicial to the defence’. However, despite its affinity to the common law, section 89(1)’s terms are actually significantly broader than the common law in three ways: • • •

It applies to silence by any ‘person’ (not just a criminal defendant). It applies whether or not the person was (or thought they were) a suspect at the time of the questioning. It applies to inferences against any ‘party’ (including, perhaps, inferences against the prosecution).

Examples of inferences that therefore may be prohibited by section 89(1) include: • • • • •

using a witness’s silence at an earlier police interview to attack that witness’s credibility;3 relying on the fact that an alleged child sexual abuse victim clammed up during a police interview; relying on the fact that, when a police officer asked a sobbing person what was wrong, the alleged victim did not answer; the defence, arguing that a third party committed the crime in question, relying on the fact that that person refused to be interviewed by the police; and the defence, arguing that a police officer framed the defendant, relying on that officer’s refusal to cooperate with an internal police investigation.

These examples are startling in that they seem to bear little relationship to the right to silence. If section 89(1)’s terms are to be justified at all, it must be because there are doubts about the reliability of any instance of silence in response to questions from a criminal investigator. While such a rule might be sensible, there is no evidence that it was intended by the drafters; moreover, section 89(1)’s absolute nature, with no further conditions or broad exceptions, seems at odds with the otherwise balanced rules that apply to other potentially unreliable evidence, such as hearsay, opinion or tendency evidence. The breadth of the section was not explained either by the original drafters or during the 2007 law reform consultations, which nevertheless recommended that section 89(1) be expanded to include not only formal police interviews, but also responses to any question from a person investigating an actual or potential crime. Section 89(3) does provide for one narrow exception: where the fact of silence is itself a fact in issue in a proceeding, such as in a prosecution for an offence of failing to answer a compulsory question. It is also possible that section 89(1), because it only refers to questioning by investigators, may be a little narrower than the common law, which extends to silence during earlier court proceedings, such as committals. In one uniform evidence legislation jurisdiction, a further, more significant qualification on section 89(1) now applies. Section 89A(1) of the Evidence Act 1995 (NSW), which covers all matters (including federal prosecutions) heard in NSW courts, provides: In a criminal proceeding for a serious indictable offence, such unfavourable inferences may be drawn as appear proper from evidence that, during official questioning in relation to the offence, the defendant failed or refused to mention a fact:

3 Jones v The Queen [2005] NSWCCA 443.

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(a) that the defendant could reasonably have been expected to mention in the circumstances existing at the time, and (b) that is relied on in his or her defence in that proceeding.

This cumbersome rule is similar to provisions in Singapore, England and Ireland4 and is designed to discourage criminal suspects from exercising their right to silence via the (questionable) threat that, if they do, a court may draw ‘unfavourable inferences … as appear proper from evidence’. However, there are significant qualifications on section 89A(1)’s use. First, the court must be satisfied that there was a particular fact that the suspect failed or refused to mention during questioning, could be reasonably expected to have mentioned and relied on in his or her later defence (all potentially subtle matters). Second, the remainder of the section conditions the drawing of an inference on the police having given the suspect a ‘special caution’ explaining section 89A(1) and bars a court from drawing an inference where the suspect either was a child, was incapable of understanding the ‘general nature or effect’ of the special caution or did not have a lawyer present when the special caution was given. As the NSW Attorney-General noted at the second reading speech introducing section 89A: ‘Some, given the effect of these provisions, may not bring their lawyer to the police station. This is their choice.’ Indeed, that may be the sole effect of section 89A, if its many uncertainties ultimately deter police and prosecutors from making use of it.

8.2 EXCLUDING ADMISSIONS One reason admissions are so significant is that one party can prompt another into making them, largely through the simple process of asking a question. Despite the fact that most questions do not have to be answered—and that criminal defendants have a positive right not to answer— admissions (either in the direct form of facts that help the other party, or in the indirect form of lies that damage the party’s credibility) are often forthcoming. At least in criminal proceedings, this process is troubling. Due to section 81, suspects who make admissions are effectively speaking directly to the court itself, but they do so without the bevy of protections available in the courtroom. As Yale Kamisar observed in an influential United States article: The courtroom is a splendid place where defence attorneys bellow and strut and prosecuting attorneys are hemmed in at many turns. But what happens before an accused reaches the safety and enjoys the comfort of this veritable mansion? Ah, there’s the rub. Typically he must first pass through a much less pretentious edifice, a police station with bare back rooms and locked doors. In this ‘gatehouse’ … through which most defendants journey and beyond which many never get— the enemy of the state is a depersonalised ‘subject’ to be ‘sized up’ and subjected to ‘interrogation tactics and techniques most appropriate for the occasion’; he is ‘game’ to be stalked and cornered. Here ideals are checked at the door, ‘realities’ faced, and the prestige of law enforcement vindicated. Once he leaves the ‘gatehouse’ and enters the ‘mansion’—if he ever gets there—the enemy of the state is repersonalised, even dignified, the public invited, and a stirring ceremony in honour of individual freedom from law enforcement celebrated.5

4 Criminal Justice Act 1984 (Ireland), s 19A; Criminal Justice and Public Order Act 1994 (UK), s 34; Criminal Procedure Code 2010 (Singapore), s 261. 5 Y Kamisar, ‘Equal Justice in the Gatehouses and Mansions of American Criminal Procedure’, in A Howard (ed.), Criminal Justice in Our Time, 1965, Charlottesville: Virginia UP, 19–21.

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During the last century, courts and (later) parliaments responded to these concerns by setting out some rules for how police can conduct interrogations.6 These practices and laws may affect the admissibility of admissions, because of section 138, which requires courts to exclude illegally or improperly obtained evidence (including admissions) if it is desirable to do so.7 Perhaps because of the late development of the rule about illegally or improperly obtained evidence in the United Kingdom and Australia, the common law has developed a parallel set of rules excluding admissions depending on the circumstances in which they were made. The uniform evidence law replaced these rules with three statutory rules, two drawn from a United Kingdom reform statute and the third retained from the common law. These are discussed in turn below. However, the discussion first examines what sorts of conduct by a party falls within the rules’ protection.

8.2.1 Scope of the exclusionary rules The uniform evidence law’s special rules to protect parties who make admissions clearly encompass parties who state facts that, if true, support the other side’s case. But sometimes, it is the mere fact that the person spoke that helps the other side, for example: • • •

a statement that is later proven to be a lie, thus suggesting that the person knew that the true facts were against her; a statement that itself founds a cause of action—for example, a negligent statement or a contractual promise; and a statement that is otherwise legally significant simply because it was made—for example, a consent to an investigative procedure.

Treating these sorts of statements as admissions is controversial, because they are arguably not being used for a traditional ‘hearsay purpose’ (to prove facts that the maker intentionally or implicitly communicated). As already observed, the definition of admission is not limited to such purposes; however, some argue that a limitation of this sort is implicit in the definition of an ‘admission’. Aside from the technical language of the statutes, the issue of whether to place limits on the definition of ‘admission’ can be illuminated by considering its implications—who benefits from a narrow reading of the definition? Because Part 3.4 regulates admissions in so many different ways, this question is complex. Indeed, its answer depends on which part of the definition of admission is read narrowly. If the term ‘adverse’ is given a narrow reading, then that may benefit either the party who made the representation (if the statements are inadmissible because the admissions exception cannot be used) or the other party (because the exclusionary rules for admissions won’t apply). In ML v The Queen [2011] VSCA 193, notes kept by employees of Victoria’s Department of Human Services recorded the accused’s statement that he and his wife had unsuccessfully tried to have consensual anal sex while she was recovering from childbirth. At a later trial for raping his wife on a different occasion, his testimony about his sexual relationship with his wife contradicted what he had told the Department, prompting the prosecution to seek to raise those notes with the accused

6 See Practice Note [1964] 1 All ER 237; R v Anunga (1976) 11 ALR 412; Crimes Act 1914 (Cth), Part IC, Division 3 (applicable in the ACT: s 23A(6)); Police Administration Act 1978 (NT), Part VII, Divisions 6 & 6A; Criminal Law (Detention and Interrogation) Act 1995 (Tas); Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), Part 9, Division 3; Crimes Act 1958 (Vic), Part 3, Division 1, Subdivision 30A. 7 See Chapter 16: Discretionary and Mandatory Exclusions.

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in cross-examination. The Court of Appeal held that the notes were not ‘adverse’ to the accused, because they only became relevant to the rape charge when the accused gave contrary evidence. That (narrow) holding favoured the prosecution (who did not need to rely on the admissions exception, because it intended to use the notes for a non-hearsay purpose of attacking the accused’s credibility) and damaged the defence (who now could not argue that the notes were excluded by sections 85 or 86). But the effect is different if (as is commonly suggested) it is the word ‘representation’ that should be read narrowly. For example, in Australian Competition and Consumer Commission v Pratt (No 3) [2009] FCA 407; (2009) 175 FCR 558, where the defendant was prosecuted for giving false information to the Commission in relation to alleged cartels, the prosecution relied on different information in statements that were written by the defendant’s lawyers when the cartel matter was settled. Ryan J ruled that those statements, although made with the defendant’s authority, were not ‘representations’ by him but instead were simply made to reach the settlement. As a matter of logic, a ruling that an alleged admission made by one party is not a ‘representation’ for the purposes of Part 3.4 is entirely beneficial to the other party (in this instance, the Commission). That is because its effect is to remove that alleged admission from the scope of both the hearsay rule (and hence, the other party’s need to bring the statements within an exception to that rule, such as the admissions exception) and the exclusionary rules for admissions (including section 90, which might have barred the Commission’s proposed use of negotiated settlement statements as admissions), as both rules only apply to ‘representations’. However, it may be that the practical effect of Ryan J’s ruling is that the settlement statements were wholly or mostly irrelevant to proving anything, a ruling that clearly benefits the party who made the alleged admission (in this case, the accused). Given the protective nature of most of the rules in Part 3.4, narrowing the scope of the definition of admission (and particularly the definition of representation) is a generally undesirable outcome. But it is possible that some of those rules—for example, rules requiring that the admission be reliable—may be inappropriate for some of the non-traditional sorts of admissions, such as alleged lies by the defendant. The matter is yet to be definitively resolved. In R v Horton (1998) 45 NSWLR 426, the NSW Court of Criminal Appeal held that an exculpatory statement by the defendant, relied on by the prosecution only to cast light on the defendant’s state of intoxication when he made it, was still an admission. By contrast, in R v GH [2000] FCA 1618; (2000) 105 FCR 419, Spender J held that a statement is only an admission if its content is adverse to the person who made it. However, Madgwick J in the same case set out a middle-ground. The issue was whether or not Part 3.4 regulated evidence of a conspiracy to pervert justice in the form of a lie the defendant told to the police. Madgwick J held: [T]he definition of ‘admission’ hinges on the nature of an out-of-court ‘representation that is … adverse to the person’s interest in the outcome of the proceeding’. It is the representation that must be adverse to that interest. As the terms of s 59 and s 60 show, the core notion of a ‘representation’ is that it should involve the intention to assert the existence of a fact. In the present case, the relevant fact asserted to exist was not adverse to that interest. If the fact asserted to exist was true, that fact was exculpatory. The Crown was not relying on that statement alone or in concert with anything else to suggest that the respondent’s guilt should be inferred from the fact asserted to exist by that statement. It is that consideration that, in my opinion, determines the matter. It was a case of the Crown needing to prove the falsity of the statement in order to establish that the statement itself was the actus reus of the crime charged. Nor was this a case of an implied admission whereby it might be said that, as a result of the oral representation X and other circumstances, non-X was really being admitted.8

8 R v GH [2000] FCA 1618; (2000) 105 FCR 419, [79] c.f. DPP v Cook [2006] TASSC 75, [31], [120].

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This approach would classify the first of the non-traditional uses identified above—a representation of incorrect fact used to demonstrate that a party was conscious of her guilt or wrongdoing—as an admission, but not the remaining uses. Madgwick J, citing the protective nature of Part 3.4, also held that a statement that falls across both sides of this divide (for example, a defendant’s statement during a bank robbery to ‘Get back, these guns are loaded’) should be counted as an admission.

8.2.2 Oppressive influences Section 84(1) provides that: 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.

This rule applies to all admissions, criminal and civil, and whether or not the admissions exception is used. Very similar provisions exist (for criminal admissions only) in the United Kingdom and New Zealand.9 Section 84 is typically justified as either a means of preventing false admissions or as a protection of people’s rights not to speak. The Supreme Court of Canada has observed: If the police create conditions distasteful enough, it should be no surprise that the suspect would make a stress-compliant confession to escape those conditions. Alternatively, oppressive circumstances could overbear the suspect’s will to the point that he or she comes to doubt his or her own memory, believes the relentless accusations made by the police, and gives an induced confession.10

These same concerns are also dealt with (for criminal admissions) by the exclusionary rules for unreliability and unfairness, discussed below. Section 84 could be regarded as reinforcing these protections and expanding them to civil trials. It may also reflect a wider social distaste of violence, regardless of whether that violence led to an unreliable admission of a breach of rights. However, section 84, being limited to admissions, does not deal with other evidence prompted by violence. At common law, the use of non-party statements (even if they are not hearsay or fall within a hearsay exception) is absolutely prohibited if they are prompted by torture.11 The uniform evidence legislation only provides for such exclusion through the non-absolute rule in section 138.12 Applying section 84 involves examining the character of everything that influenced the making of the admission. The most straightforward categories are violent, inhuman and degrading conduct. It has always been the law that admissions beaten out of suspects (or obtained through the threat of such beatings) are not admissible. The past prevalence of such practices by the police in the background to admissions used in court is due not to the courts’ tolerance of such behaviour, but rather to judges’ and jurors’ unwillingness to believe that the police would engage in it. The categories of inhuman and degrading conduct reflect the influence of the law of human rights. In Republic of Ireland v United Kingdom [1978] ECHR 1; (1978) 2 EHRR 25, the European Court of Human Rights held that practices used to interrogate people suspected of terrorism in Northern Ireland—including compelling detainees to stand in a ‘stress position’, requiring them to wear

9 10 11 12

Police and Criminal Evidence Act 1984 (UK), s 76(2)(a); Evidence Act 2006 (NZ), s 29. R v Oickle [2000] 2 SCR 3, 38. A v Secretary of State for the Home Department [2005] UKHL 71; [2006] 2 AC 221. See Chapter 16: Discretionary and Mandatory Exclusions.

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hoods at all times except during interrogations, subjecting them to loud and continuous hissing noises and depriving them of sleep, food and drink—while not within the definition of torture, nonetheless constituted ‘inhuman treatment’. The broader category of ‘oppressive’ conduct that influenced the making of admission is more difficult to define. The threat of litigation or prosecution, not to mention the processes of the justice system, can be considered oppressive (or even degrading). However, perhaps baulking at the implications, courts have refused to use section 84 to exclude admissions made: •

• • •

when a party attended a one-on-one meeting with his employer, only to find multiple people (including two police officers and a solicitor) in attendance and to be confronted by allegations of serious impropriety;13 to prevent a disgruntled dental patient making a ‘scene’ at a busy surgery;14 at an interview an insurance claimant was contractually required to attend;15 and at an interview a bank employee was required to attend on threat of disciplinary action.16

Rather, section 84’s application seems to rest on findings that the conduct in question was extreme or ‘crossed the line’, for example • • • •

persistent, sceptical and repetitive questioning of a 14-year-old;17 a statement that a woman would ‘look like a bad mother’ if she did not tell the truth;18 a ‘limited time’ offer to place a suspect in a witness protection program;19 and unlawfully detaining a suspect and holding him incommunicado.20

In contrast to the common law requirement of voluntariness, which is satisfied so long as the defendant’s will was not ‘overborne’, section 84 mandates exclusion if the prosecution is unable to prove (on the balance of probabilities) that the admission was not ‘influenced by’ the violent or oppressive conduct. In Habib v Nationwide News Pty Ltd [2010] NSWCA 34; 76 NSWLR 299, the Court of Appeal excluded admissions the plaintiff made while in custody in Islamabad and Guantánamo Bay because the defendant (who was relying on what the plaintiff said there to defend a defamation action by the plaintiff ) could not show that they weren’t affected by the trauma and degradation he experienced at both locations. Section 84 does not require that the oppressive conduct be the only, or even major, reason for the admission. In R v Ye Zhang [2000] NSWSC 1099, the prosecution argued that, even if a police officer had acted oppressively during an interview, the defendant actually confessed because the conversation turned by chance to his broken-down relationship with a woman, a situation that left him emotionally vulnerable and prompted his confession. Simpson J held that this argument was insufficient as the prosecution could not prove that the police officer’s conduct was not a factor (albeit among others) that prompted the defendant’s confession. Likewise, the Court in Habib held that the plaintiff ’s repetition of what he had said in Pakistan and Guantánamo Bay in a television interview recorded three years later after he had returned to Australia must still be excluded by section 84.

13 14 15 16 17 18 19 20

Wily v Fitz-Gibbon [1998] FCA 121. Jung v Son [1998] NSWSC 698. R v Frangulis [2006] NSWCCA 363. Higgins v The Queen [2007] NSWCCA 56. R v LL [1998] NSWSC 1027. R v Helmhout (No. 2) [2000] NSWSC 225. R v Ye Zhang [2000] NSWSC 1099. R v Ul-Haque [2007] NSWSC 1251; (2007) 177 A Crim R 348.

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8.2.3 Potential unreliability Common sense suggests that no one would confess to a crime that they did not commit. This intuition provides the main rationale for exempting admissions from the hearsay rule: Confessions, like other admissions out of Court, are received as narrative statements made trustworthy by the improbability of a party’s falsely stating what tends to expose him to penal or civil liability.21

However, the English Royal Commission on Criminal Justice identified four different sets of reasons why someone might make a false admission: (i) people may make false confessions entirely voluntarily as a result of a morbid desire for publicity or notoriety; or to relieve feelings of guilt about a real or imagined previous transgression; or because they cannot distinguish between reality and fantasy; (ii) a suspect may confess from a desire to protect someone else from interrogation and prosecution; (iii) people may see a prospect of immediate advantage from confessing (e.g. an end to questioning or release from the police station) … and (iv) people may be persuaded temporarily by the interrogators that they really have done the act in question …22

The counterintuitive nature of false admissions is a potent opportunity for wrongful convictions. Not surprisingly, evidence of admissions has featured prominently in many notorious miscarriages of justice. Evidence law typically manages questions of unreliability through jury directions.23 However, reflecting the heightened reliability concerns that apply to admissions, the uniform evidence legislation provides for a stronger remedy. Section 85(2) states: Evidence of an 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.

This provision, which is limited to criminal proceedings, is similar to rules in the United Kingdom and New Zealand statutes.24 While its purpose is undoubtedly laudable, its terms and operation are somewhat obscure. The application of section 85(2) is most straightforward in relation to factors external to the defendant that prompted him or her to confess. Coercion, perhaps the most obvious cause of potential unreliability, is already covered by section 84 (which applies to all admissions). Rather, section 85’s prime concern is with more subtle effects. Section 85(3)(b) identifies two factors that must be considered in applying section 85(2) to an admission ‘made in response to questioning’: (i) the nature of the questions and the manner in which they were put; and (ii) the nature of any threat, promise or other inducement made to the person questioned.

The first factor will capture sources of stress that fall short of oppression and inappropriate questioning techniques that may influence suggestible defendants to confess. The second factor reflects the common law’s hostility to inducements; however, rather than requiring an automatic exclusion, such inducements are only relevant to the extent that may adversely affect the truth of any admission. In neither instance is there any requirement that the police’s conduct be either illegal or improper. A more difficult set of factors are those internal to the defendant. Section 85(3)(a) requires the court to take account of:

21 22 23 24

Sinclair v The King [1946] HCA 55; (1946) 73 CLR 316, 334. Royal Commission on Criminal Justice, Cm 2263, 1993, London: HMSO. See Chapter 19: Warnings and Information. Police and Criminal Evidence Act 1984 (UK), s 76(2)(b); Evidence Act 2006 (NZ), s 28.

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any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject.

There is no doubt that the person’s own characteristics are matters that could very well cause him or her to make an unreliable admission; however, in contrast to the matters listed in section 85(3)(b), this factor is not the product of state action. In an attempt to reconcile this broad concern with the narrow scope of section 85(1), some NSW courts have held that a person’s characteristics matter only to the extent that they cast light on the effect of external circumstances, like the impact of questions or inducements from the state.25 However, others reject such a limitation, holding instead that, while a person’s disabilities will not automatically lead to the exclusion of any admissions, any doubts they raise about reliability will be sufficient, even if the investigating official or person of influence was unaware of the problem. For example, in R v McLaughlan [2008] ACTSC 49; (2008) 218 FLR 158, Refshauge J, while dismissive of concerns about an alleged arsonist’s general psychiatric condition, excluded admissions she made to a police officer on the basis of eyewitness accounts that she was drunk and disorientated when the admissions were made. The final, most controversial, set of factors relate to the admission itself. A defendant may, for example, want to point to evidence disproving some of the facts admitted in order to show that the admission was not made as claimed or was tainted., while the prosecution may want to support the reliability of the admission with corroborating evidence. Section 189(3), a proof provision in Chapter 4 of the uniform evidence law, regulates who can raise the issue of an admission’s truth or falsity—it must be the defendant—but does not otherwise prevent the issue from being considered. Rather, the main barrier to relying on this factor is the wording of section 85(2) itself, which refers to the ‘the circumstances in which the admission was made’. This suggests that reliability issues arising from the contents of the admission are not the subject of this exclusionary rule, but are rather for the tribunal of fact in deciding the outcome of the case. A striking feature of section 85 is that it only applies to some categories of admissions. Section 85(1) states: This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant: (a) to, or in the presence of, an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence; or (b) as a result of an act of another person who was, and who the defendant knew or reasonably believed to be, capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued.

Both categories revolve around the identity of other people. The first category, ‘investigating officials’, includes the police and other state investigators, but not government officials with no investigative functions (such as a customer service officer at a government agency).26 Admissions will fall within this category merely if they are made ‘to, or in the presence of ’ such a person while he or she is investigating a crime or possible crime. The second, broader category is people ‘capable of influence the decision’ of whether or not to prosecute (or to drop a prosecution). This would cover an essential witness (such as an alleged victim) whose attitude could well affect the prosecutor’s. However, admissions only fall within this category if they were ‘made as a result of an act of ’ such a person. 25 R v Rooke [1997] NSWSC 363; R v Munce [2001] NSWSC 1072, [28]. 26 R v Bormann [2010] ACTSC 145, [66]–[68].

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A possible rationale for these limitations is the assertion, put by the High Court in a common law decision, that it is the legitimate acts of investigators that poses the greatest risk of prompting unreliable confessions. In Tofilau v The Queen; Marks v The Queen; Hill v The Queen; Clarke v the Queen [2007] HCA 39; (2007) 231 CLR 396, the confessions in question were prompted by an elaborate undercover sting, where police officers posed as criminal gangs who required prospective members to confess in return for admission. At common law, admissions prompted by inducements made by a ‘person in authority’ are inadmissible; however, the High Court ruled that these inducements (including promises that corrupt police officers would derail any investigations into the crimes confessed) did not trigger the rule, because the defendants in question were unaware that they were dealing with the (legitimate) state. Subsequent amendments to section 85(1), apparently in support of this approach, prevent the application of the exclusionary rule in cases where the defendant was unaware that he or she was dealing with either an investigating official or a person of influence. Note that section 85(2) refers to the ‘truth of the admission’, rather than the truth of the evidence of the admission, suggesting that the reliability of the evidence itself is not a factor to be considered under the section. The rules of evidence for how admissions are proved are discussed later in this chapter.

8.2.4 Unfair use The final rule in Part 3.4 is section 90, which states: In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if: (a) the evidence is adduced by the prosecution; and (b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.

Section 90 only covers admissions adduced by the prosecution in criminal cases (unlike section 84), but it is not otherwise limited to any particular admissions (unlike section 85). The form of section 90 contrasts with the other rules of significance to the admissibility of admissions. Like sections 84 and 85, it is concerned with the ‘circumstances in which the admission was made’; however, rather than requiring the exclusion of an admission in defined circumstances, section 90 instead merely requires that a court examine any such circumstances in order to determine whether the ‘use’ of the admission at the trial can be characterised as ‘unfair to a defendant’. So, section 90 did not prevent an otherwise (arguably) flawed police interview of an intellectually impaired man from being used at trial to allow the jury to assess whether the accused’s voice matched the voice of an offender that a victim had recorded on his mobile phone.27 In this sense, section 90 is similar to sections 136, 137 and 138, which are all concerned with problems that can arise from the admission or use of evidence at the trial; however, those discretions protect the courts’ integrity (either from possible irrational reasoning or being tainted with someone’s illegal or improper conduct) rather than the integrity of the process of obtaining admissions. The Caribbean Court of Justice has held that the Barbados equivalent to section 90 cannot be used to remedy disadvantages the accused faces at the trial (such as a lack of legal representation and the prosecution’s failure to call a police witness to the admission), absent any flaw in the circumstances in which the admission was made.28 27 DPP v Haddara (Ruling No 1) [2012] VSC 276. 28 Francis v The Queen [2009] CCJ 11, [50]–[55].

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Beyond its structure, the statutory provision itself provides no clues whatsoever as to its operation. The word ‘unfair’ is undefined, the ‘circumstances’ to be considered are not identified and no guidance is provided on the exercise of the discretion. The section’s history is not helpful. It is obviously based on the common law’s ‘fairness’ (or Lee)29 discretion, which is defined in the same way as section 90(b). This reflects the fact that section 90 was a late inclusion in the draft of the uniform evidence legislation, introduced to meet concerns that the remainder of what became Part 3.4 (combined with the discretions in Part 3.11) would be less protective than the common law. However, three years after the uniform evidence legislation was enacted, the High Court reformulated the common law on admissions as a three-stage test that (by design) mirrored sections 84, 85 and 138.30 The arguable corollary is that section 90’s inclusion in the uniform evidence legislation was misconceived and it has no impact on admissibility. The chief authority on section 90 is the High Court’s decision in Em v The Queen [2007] HCA 46; (2007) 232 CLR 67, an appeal by a murder defendant who had made what he thought was an ‘off-the-record’ confession to two police officers in a park, unaware that they were recording his remarks with a hidden tape-recorder. All the judges agreed that section 90’s general terms meant ‘it would not be possible in any particular case to mark out the full extent of its meaning’, its operation ‘cannot be described exhaustively’ and its meaning ‘cannot be defined comprehensively or precisely’.31 However, this was the only point on which the Court was unanimous. Kirby J’s view was that section 90 ‘should be applied according to its own terms’ and not confined by reference to other provisions, in the uniform evidence law or elsewhere.32 He held that the admission should have been excluded because the police’s conduct infringed both the defendant’s right to remain silent and the practice of cautioning suspects that anything they say may be used against them as evidence. However, as usual, Kirby J was in dissent and Hayne and Gummow JJ reached the opposite view. They characterised section 90 as a ‘final or “safety net” provision’, which could not be triggered by concerns addressed elsewhere in the uniform evidence legislation.33 In a short judgment, they dismissed the challenge to admissibility on the ground that neither general condemnations of the police’s conduct nor a specific complaint that they misled the defendant could be considered under section 90, as those matters are already addressed by sections 138 and 139 (which was not a bar to admissibility because the desirability of admission outweighed the desirability of exclusion). The most authoritative judgment is that of Gleeson CJ and Heydon J, who resolved the case without deciding whether or not Hayne and Gummow JJ’s view was correct. They held that the admission of the suspect’s confessions at his murder trial was fair to him for two reasons. First, the suspect’s mistake was not the product of the police’s acts or their failure to caution him, but rather was an instance of how the police ‘every day’ take advantage of suspects’ ‘ignorance and stupidity’.34 Second, the police’s deception was one that was expressly authorised by NSW’s statutory scheme regulating the use of covert listening devices.35 This second consideration is consistent with another case from the NSW Court of Criminal Appeal, which held that section 90 could not be applied to admissions that a suspect was compelled to make due to a statutory scheme restricting the privilege against self-incrimination.36

29 30 31 32 33 34 35 36

R v Lee [1950] HCA 25; (1950) 82 CLR 133. R v Swaffield; Pavic v The Queen [1998] HCA 1; (1998) 192 CLR 159. Em v The Queen [2007] HCA 46; (2007) 232 CLR 67, [56], [109], [177]. Ibid., [195]. Ibid., [109]. Ibid., [77]. Ibid., [120]. DPP v Attalla [2001] NSWCA 171, [27].

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These cases indicate that section 90 is primarily concerned with positive acts that are both unauthorised and a significant factor leading to the making of the admission. There would seem to be two broad ways that acts meeting this description may make it unfair to use the resulting admission at the trial. First, the acts may change how the admission is (or may be) used by the fact-finder in a way that is negative for the defendant. This may occur if the acts: •

•

•

made it harder for the defendant to establish the circumstances in which the admission was made, for example a failure to comply with a statutory requirement to have an independent party present at the police interview;37 failure to subsequently mention the unrecorded admission during a recorded interview;38 or police putting allegations of other admissions to a suspect, thus allowing those admissions to be introduced into evidence without the need to call people who witnessed them;39 caused the admissions to be more damaging to the defendant than they otherwise would have been, for example multiple interviews prompting inconsistent accounts;40 and secret recordings of the suspect being surprised with new allegations and reacting in a way that damaged their credibility.41 raised the risk that the admission would be unreliable, for example through the use of leading questions or the feeding of information about the offence.

The first two instances were expressly endorsed (under the rubric ‘forensic disadvantage’) by the High Court in an earlier common law case.42 There is an obvious overlap between these considerations and the various rules in both Part 3.4 (designed to ensure that admission are reliably proven and reliable as the source of inferences in the trial) and the rules of evidence in general (such as the hearsay rule and the discretions to exclude prejudicial evidence). Nevertheless, section 90 may operate on admissions that fall outside of the scope of those rules (for example, admissions that are admitted without relying on the admissions exception, or that fall outside the scope of the statutory recording and reliability requirements). Somewhat surprisingly, even Hayne and Gummow JJ endorsed the application of section 90 to deal with allegedly unreliable admissions that fall outside the scope of section 85.43 In Riley v The Queen [2011] NSWCCA 238, the defendant argued that section 90 required the exclusion of a rambling narrative account found in his caravan and apparently written by him in private that contained admissions he provided drugs to two people. The NSW Court of Criminal Appeal acknowledged that the letter ‘clearly’ indicated the defendant’s ‘confused state of mind’, but held that ‘[a]ny prejudice caused by the unreliability of the letter would have been readily apparent to the jury members’. By contrast, in DPP v Hicks (Ruling No 2) [2014] VSC 153, Kaye J applied section 90 to exclude the accused’s guilty pleas to a series of burglaries (which occurred in the same area and period as a murder he was charged with). Although the pleas were made in open court after the accused received legal advice, they had been made on the same day that the accused had denied committing some of the burglaries during a police interview and immediately

37 Foster v The Queen [1992] HCA 63; (1993) 113 ALR 1. 38 Nicholls v The Queen; Coates v The Queen [2005] HCA 1; (2005) 219 CLR 196, [108] (per McHugh J); R v Schaeffer [2005] VSCA 306; (2005) 13 VR 337, [6]. 39 McDermott v The King [1948] HCA 23; (1948) 76 CLR 501. 40 R v Amad [1962] VR 545. 41 Van Der Meer (1988) 35 A Crim R 232, 258. 42 R v Swaffield; Pavic v The Queen [1998] HCA 1; (1998) 192 CLR 159, [71]–[79]. 43 Em v The Queen [2007] HCA 46; (2007) 232 CLR 67, [112].

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after the accused’s lawyer (who had only limited information as to the evidence of the burglaries) had advised the accused (who had previously complained of being raped in an adult prison) that if he denied commiting some of the charges, he was likely to be remanded in an adult prison. Kaye J also noted that, if the guilty pleas were admitted, the accused would need to adduce evidence of his earlier stay in the adult prison in order to explain to the jury why those pleas may have been unreliable. Second, the state’s unauthorised acts may have caused the suspect to make admissions that would not otherwise have been made at all. The drafters of section 90 identified this possibility as a reason for inserting the common law’s fairness discretion into Part 3.4. The central difficulty with this approach is that very many admissions are the product of police acts (such as questioning a suspect). What standard determines whether admissions prompted by such acts are fair or not? More than one High Court judge has suggested that police are not bound by the rules of fair play.44 If all’s fair in investigation, then section 90 has no work to do when it comes to whether or not admissions are made. Nevertheless, the police are undoubtedly bound by some rules of ‘play’: statutory provisions in each jurisdiction specifying procedures (and even rights) for suspects in custody.45 Such laws are typically silent about the consequences that follow if they are breached, but Australian courts (applying both the common law and section 90) have excluded admissions that may not have been made if the laws had been followed, such as where: • • •

•

the police conducted an interview of a detainee in Pakistan despite being unable to meet his request for legal advice due to Pakistani restrictions;46 the police conducted an interview of a young person in the absence of a statutorily required independent adult;47 the prosecution relied on admissions made at a properly conducted interview, but which had earlier been elicited by the police at an interview that omitted the required warnings and processes.48 the prosecution relied on admissions made by a suspect to a clinical nurse specialist who had been called to the police station to assess his mental health for risks of self-harm.49

This so-called ‘protective principle’50 requires courts to determine whether a particular law is intended to protect suspects from themselves and whether a suspect’s willingness to go on with an interview amounts to a waiver of the protection. In JB v The Queen [2012] NSWCCA 12, the Court of Criminal Appeal held that a regulation requiring that police allow vulnerable defendants to communicate with a support person in private ‘says nothing as to whether a voluntary admission made to the support person in a private conversation between them is or is not admissible’. So, even though the accused had already refused to answer police questions, section 90 did not require the exclusion of what he then said to the support person, absent any evidence of trickery or manipulation. 44 Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54, 75 (per Stephen and Aickin JJ); R v Swaffield [1998] HCA 1; (1998) 192 CLR 159, [35] (per Brennan CJ). 45 E.g. Crimes Act 1914 (Cth), Part IC, Division 3 (applicable in the ACT: s 23A(6)); Police Administration Act 1978 (NT), Part VII, Divisions 6 & 6A; Criminal Law (Detention and Interrogation) Act 1995 (Tas); Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), Part 9, Division 3; Crimes Act 1958 (Vic), Part 3, Division 1, Subdivision 30A. 46 R v Thomas [2006] VSCA 165, [112]–[114]. 47 R v Phung and Huynh [2001] NSWSC 115. 48 Pollard v The Queen [1992] HCA 69; (1992) 176 CLR 177. 49 R v Leung [2012] NSWSC 1451, [22]. 50 A Ashworth, ‘Excluding Evidence as Protecting Rights’ [1977] Criminal Law Review 723.

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8.3 PROVING ADMISSIONS Admissions are an exception to the hearsay rule on the theory that the makers of those statements are unlikely to tell lies that hurt them. But the same cannot be said for the party who purports to rely on an admission, who may well be tempted to falsely claim that the admission was made or lie about the circumstances in which it was made (or, at least, to proffer less-than-reliable evidence to that effect). Indeed, one category of evidence of admissions—disputed police evidence that a suspect confessed to a crime—is notorious as a potent source of miscarriage of justice. In short, the very reliability of an admission creates a risk that the evidence that it was made will itself be unreliable. So, in addition to being subject to rules about when they may be used to draw inferences, admissions are subject to a number of special rules governing how they are proved. As was the case with admissions exception in section 81(1) and the exclusionary rules in sections 84, 85 and 90, the proof rules in Part 3.4 (as well as the local statutory recording requirements) only apply to representations that fall within the definition of an ‘admission’. So, the discussion at [8.2.1] under the heading ‘Scope of the exclusionary rules’ about whether or not some adverse representations (such as lies told by a defendant) are admissions also applies to the rules on how they are proved.

8.3.1 Requirement for first-hand evidence Section 82 limits the admissions exception in section 81 by specifying just two ways that the evidence of an admission can be proved: (a) it is given by a person who saw, heard of otherwise perceived the admission being made; or (b) it is a document in which the admission is made.

The intent of this provision is to ensure that admissions are only proved ‘first-hand’. This requirement can potentially circumvented by relying on a hearsay exception that does not require first-hand evidence, for example an admission contained in a business record (assuming the admission is not within the exception to the business records exception for records created for a litigation or criminal investigation purpose). However, section 60 cannot be used in this way in criminal proceedings, as section 60(3) excludes its application to admissions by the accused. In Tasmania v B (No 2) [2012] TASSC 39, after the accused’s sister testified about a neutral conversation she had with the accused, the prosecution sought leave to cross-examine her about an earlier account of this conversation she had given to the police (recorded on tape) where she said that the accused confessed to a robbery. This tape fell outside of the admissions exception (because of section 82) and outside of section 60 (because of section 60(3)). So, Blow J refused to allow the cross-examination, as the evidence could only be properly used for a weak purpose of attacking the sister’s credibility. In contrast to the ‘first-hand’ exceptions in Part 3.2,51 the admissions exception is not limited to facts that the party had personal knowledge of. The fact that the person making the admission had no knowledge of the facts admitted may, however, so deprive the admission of evidential value that it should be regarded as inadmissible on the grounds of irrelevance.52

51 See s 62. 52 See, for example, Comptroller of Customs v Western Lectric [1966] AC 367 and Horne v Comino [1966] Qd R 202.

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8.3.2 Requirements for written admissions In contrast to the first-hand hearsay exception for unavailable witnesses in criminal proceedings, section 82 allows prosecutors to prove admissions by adducing ‘a document in which the admission is made’. However, additional rules limit when the prosecution can rely on this means of proving an admission. The Dictionary specifies two ways in which a representation (including an admission) contained in a document can be taken to have been made by a person: (a) the document was written, made or otherwise produced by the person; or (b) the representation was recognised by the person as his or her representation by signing, initialling or otherwise marking the document.53

This requirement is repeated (and possibly) augmented in section 86, which covers the common situation where a future criminal defendant is alleged to have made admissions to an investigating official, who in turn writes (or types) them into a document. In this situation (and regardless of whether or not section 81 was used to admit the admission), the document cannot be used to prove that the admission was made unless ‘the defendant has acknowledged that the document is a true record of the question, representation or response … by signing, initialling or otherwise marking the document’. However, this additional rule does not prevent the prosecution from: • • • •

adducing an unsigned document purporting to be personally written by the defendant; adducing an unsigned document recording admissions made to people who are not investigating officers (including admissions to undercover officers); adducing an electronic recording of the questioning;54 or calling an investigating officer (or someone else who was present) to testify that the defendant made the admissions (including using the disputed document to refresh his memory).55

For these reasons, and because of the stronger electronic recording requirement for criminal admissions in serious cases (discussed below), section 86 is largely irrelevant in such cases. The rule may, however, be of significance in cases where the recording requirements do not apply and oral testimony is not available or lacks credibility.

8.3.3 Requirement for electronic recordings In 1991, between the drafting of the uniform evidence legislation and its enactment, the High Court took a deliberate step to force Australia’s governments to deal with the scourge of ‘verballing’ (where police officers falsely claim that a criminal suspect freely confessed to a crime). The Court required that, in cases where the prosecution relies on police testimony of an admission by a suspect, the jury should be warned that it is dangerous to rely on testimony uncorroborated by a contemporaneous audio or visual recording.56 Although the sanction of a jury warning was a mild one, the message to the nation’s legislatures was heeded.

53 54 55 56

Clause 6 of Part 2 of the Dictionary. Section 86(4). Francis v the Queen [2009] CCJ 11, [15]-[20] and see also [41]. McKinney v The Queen [1991] HCA 6; (1991) 171 CLR 468, 476.

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All Australian jurisdictions, including uniform evidence law jurisdictions, have now enacted exclusionary rules for certain admissions unless an electronic recording is available at the trial.57 The rules, which are not in the uniform evidence legislation, operate in addition to the other rules in Part 3.4 (so electronic recordings of admissions will still have to satisfy those rules). Despite their common purpose and roughly contemporaneous enactment, the electronic recording rules are not uniform. In 2004, the High Court observed: Few now doubt the advantages of the widespread police practice of video-recording confessions, and few now criticise the various types of legislation which underpin that practice. But neither the advantages of the legislation viewed generically, nor the varieties of the legislation viewed species by species, cast specific light on the construction of particular parts of it.58

True to this approach, the Court has read such legislation narrowly on a number of occasions. Three features of the statutes blunt their utility as means of preventing verballing. First, reflecting early 1990s concerns about the costs and practicalities of electronic recording, the statutes do not apply to all evidence of admissions. Statements not covered in some or all of the statutes include those: • • • • • •

that fall outside of the definition of an admission;59 made before a person was suspected of an offence; made or adduced in relation to minor offences; made to someone other than an investigating official; made to an undercover investigator; or made spontaneously outside the context of formal questioning.

The latter constraint has proved significant, given the ubiquity of police claims that suspects made admissions before or after formal questioning, or during ‘tea breaks’. In Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216, the police testified that the defendant, thirty minutes or so after a formal interview where he retracted an earlier confession, said, ‘Sorry about the interview—no hard feelings, I was just playing the game’. The police neither asked Kelly what he meant, nor made a contemporaneous note of it nor asked him to repeat what he said on tape. A majority of the High Court held that the police’s evidence was nevertheless admissible, because Tasmania’s statute (like the federal and New South Wales statutes) is limited to formal interviews. The ruling prompted the widening of similar wording in sections 85, 89 and 90 of the uniform evidence legislation to cover things said in the presence of officials conducting an investigation, but the reform did not extend to the local recording requirements. Second, all of the statutes sometimes allow for admissions to be used against a criminal defendant despite the absence of a required recording. The permission is variously described in the statutes as a reasonable excuse’60 or circumstances that are ‘special’61 or ‘exceptional’62 or where admission ‘would not be contrary to the interests of justice’.63 The NSW statute lists the following examples of reasonable excuses:64

57 Crimes Act 1914, s 23V (Cth), applicable in the ACT (s 23A(6)); Criminal Procedure Act 1986 (NSW), s 281; Police Administration Act 1978 (NT), ss 142, 143; Evidence Act 2001 (Tas), s 85A; Crimes Act 1958, s 464H (Vic). 58 Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216, [37]. For a critique, see McHugh J at [96]–[108]. 59 See [8.2.1]. 60 Criminal Procedure Act 1986 (NSW), s 281(2)(a)(ii). 61 Crimes Act 1914 (Cth), s 23V(5). 62 Crimes Act 1958 (Vic), s 464H(2); Evidence Act 2001 (Tas), s 85A(1)(d). 63 Police Administration Act 1978 (NT), s 143. 64 Criminal Procedure Act 1986 (NSW), s 281(4).

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• • •

mechanical failure of the recording equipment; the refusal of a person being questioned to have the questioning electronically recorded;65 or the reasonable absence of recording equipment.

In Nicholls v The Queen; Coates v The Queen [2005] HCA 1; (2005) 219 CLR 196, the police testified that the defendant made admissions to an attempted murder while trying to strike a deal for reduced prison time, a conversation encouraged by the police. There was no recording because the alleged conversation (which the defendant denied) came during a forty-five minute ‘toilet break’ during an otherwise recorded police interview. A bare majority of the High Court held that these circumstances could not amount to a reasonable excuse, as that would open up a clear risk of verballing that would ‘defeat the purpose of ’ recording statutes.66 Some Australian jurisdictions condition the availability of such excuses on the availability a later recording where the substance of any unrecorded admission is read out and the defendant confirms the police’s claims.67 If such a requirement had applied in Nicholls v The Queen; Coates v The Queen, then the defendant’s admissions would clearly have been excluded, as the police not only failed to mention his admissions at all when the recording resumed, but also did not take contemporaneous notes and claimed to have lost their subsequent written ones! Bongiorno J has observed that this procedure aims to protect the accused from police negligence while not depriving the Crown of relevant evidence of guilt and, accordingly, ‘should be approached without undue technicality’. In R v Sindoni [2009] VSC 269, he held that evidence of the accused’s unrecorded admissions at arrest that he was ‘king hit’ by a bouncer and that a gun was at a ‘mate’s’ at ‘250 Hope St, Brunswick’ were sufficiently confirmed by later recorded admissions that a bouncer ‘punched’ him and that the gun was ‘at Hope Street’. However, a further alleged statement by the accused that he ‘went back to the club and shot the bouncer’ was not confirmed by his later recorded response ‘I was just scared mate’ to a leading question about whether he had said those words. Third, the statutes do not fully address a major risk of unreliable confessions, demonstrated in the case of Andrew Mallard. Mallard was convicted on the basis of a bizarre, recorded confession that recounted details of a murder that (the courts were told) only the true murderer would know. Those details were later shown to be incorrect, suggesting that they may have been fed to Mallard in earlier unrecorded interview. Indeed, after the High Court belatedly quashed Mallard’s conviction, further forensic tests implicated an unrelated man in the murder.68 To avoid such miscarriages of justice, most Australian statutes require a recording, not only of the admission adduced, but also of all the surrounding questions and answers. Unfortunately, the High Court, interpreting the Victorian provision (which has the broadest scope) has held that the recording requirement does not extend either to informal ‘pre-interviews’ held immediately before the tape is turned on or to separate interviews that are ‘distinct’ in time and place from the one where the adduced admissions were made.69

65 See Doklu v The Queen [2010] NSWCCA 309. 66 Nicholls v The Queen; Coates v The Queen [2005] HCA 1; (2005) 219 CLR 196, [106 (McHugh J), [152]–[157] (Gummow & Callinan JJ), [218]–[219] (Kirby J) c.f. dissents at [11] (Gleeson CJ) and [341]–[344] (Hayne & Heydon JJ). 67 Criminal Procedure Act 1986 (NSW), s 281(2)(a)(ii); Evidence Act 2001 (Tas), s 85(1)(b); Crimes Act 1958 (Vic), s 464H(1)(c), (e). 68 Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125 c.f. Corruption and Crime Commission, Report on the Inquiry into Alleged Misconduct by Public Officers in Connection with the Investigation of the Murder of Mrs Pamela Lawrence, the Prosecution and Appeals of Mr Andrew Mark Mallard and Other Related Matters, Perth, 2008. 69 Pollard v The Queen [1992] HCA 69; (1992) 176 CLR 177; Heatherington v The Queen [1994] HCA 19; (1994) 179 CLR 370.

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The continued existence of these legislative gaps is surprising, in light of the widespread acceptance of both the dangers of verballing and the utility of recordings to all concerned, as well as the ubiquity of contemporary technology allowing nearly all conversations to be easily recorded and stored.70 Such changes may prompt a future High Court—at least, one as far-sighted as the Mason court that pushed Australia’s jurisdictions to adopt recording requirements in the first place—to apply further pressure on the other branches of government to close the gaps. One possible approach—mooted by the Court of Appeal of Western Australia in one of Mallard’s earlier unsuccessful appeals—is the exclusion of all unrecorded admissions to the police on the basis that their use in a trial will put the defendant at an ‘unfair’ forensic disadvantage.71

8.3.4 Proof of admissibility One problem with imposing rules to facilitate or limit proof via a party’s admissions is that the application of the rules will themselves depend on contested facts, which are likewise subject to motivations from both sides to lie. Resolving these disputes is the task of the trial judge at an admissibility hearing (or voir dire).72 Unsurprisingly, jurors cannot be present at any hearing,73 but, in non-jury trials, the trial judge will have the difficult task of deciding both admissibility and the eventual verdict (including the mental gymnastics of ignoring any admissions that have been ruled inadmissible). To avoid having some facts litigated twice in each trial (by the trial judge determining admissibility and by the fact-finder determining the facts in issue), section 88 lowers the standard of proof in admissibility hearings for some facts about admissions by providing that: For the purpose of determining whether evidence of an admission is admissible, the court is to find that a particular person made the admission if it is reasonably open to find that he or she made the admission.

This provision removes the need for a trial judge to resolve issues about whether the evidence of an admission is reliable and, in particular, who made an alleged admission and whether it was adverse. All that the trial judge has to find is that the relevant findings could be made; then it is up to the fact-finder to decide what to make of the evidence of the admission (together with all of the other evidence in the case) in determining the overall outcome. The uniform evidence legislation also provides an express hearsay exception permitting the trial judge to use a previous representation to infer that the representation was made by someone with the authority to speak on behalf of a party or who was employed by a party.74 However, no equivalent exception is available for the broader exception for statements made to further a common purpose between the speaker and a party in section 87(1)(c). That means that a court will have to rely on other evidence to first establish that the speaker is in a common enterprise with a party, before the court can draw inferences from the statement that is damaging to the party (for example, to find the nature of the common purpose). This complex and controversial rule reflects the common law position.75

70 Compare Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), Part 8A, mandating recordings of all conversations with drivers of vehicles the police have stopped, but note s 108E, barring recordings under Part 8A if the driver is arrested. 71 See Mallard v The Queen, CCA SCt of WA, unreported, 11 September 1996, Library No 960505; Jacobs v The Queen [2000] WASCA 142. 72 Section 189(1); see also Chapter 20: Procedural Provisions, [20.1]. 73 Section 189(2). 74 See s 87(2). 75 See Ahern v The Queen [1988] HCA 39; (1988) 165 CLR 87.

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For other facts relevant to admissibility—including the question of whether a recording was or should have been made, or the various facts relevant to the exclusionary rules discussed in the middle section of this chapter—the admissions themselves cannot be used to establish the relevant facts and the usual requirement of proof on the ‘balance of probabilities’ applies.76 In Habib v Nationwide News Pty Ltd [2010] NSWCA 34; 76 NSWLR 299, the NSW Court of Appeal held that this position is not affected in the case of the section 84(1)’s exclusionary rule by a provision in section 84(2) stating that the rule ‘only applies if the party against whom evidence of the admission is adduced has raised … an issue’ about whether the admission was so influenced. Instead, section 84(2) only requires that ‘there must be some evidence that indicates through legitimate reasoning that there is a reasonable possibility an admission or its making were influenced by proscribed conduct’. That requirement was satisfied by the trial judge’s acceptance of the plaintiff ’s evidence that he had undergone trauma, mistreatment and degradation in Pakistan and Guantánamo.

SUMMARY The admissibility of evidence sourced from one side of a proceeding but used by the other side is subject to the following rules: • • •

•

Admissions by parties (including some statements made by non-parties) can be used for their hearsay and opinion use, but usually only against the party who made them. Silence by parties and others in response to questions by investigators cannot generally used against any party in a criminal case. An admission must be excluded if it was: – influenced by violence, oppression, inhumanity or degrading treatment (or threats of such treatment); – made by a criminal defendant to a state agent or person of influence in circumstances that were not conducive to its reliability; or – made by a criminal defendant in circumstances that made it unfair to use it against the defendant at the trial. Proof of an admission typically requires: – first-hand testimony or a document containing the admission; – for written records by police officers, the defendant’s signature acknowledging the truth of the record; – for admissions to serious crimes to investigating officers, an electronic recording of the full police interview; and – for determinations of admissibility, that it was reasonably open to find that the previous representation was made by a party or someone authorised to speak for a party.

76 Section 142. This contrasts with some overseas jurisdictions, which require the voluntariness of an admission to be proved beyond reasonable doubt: see R v Ward [1979] 2 SCR 30.

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FIGURE 8.1 PART 3.4: ALL PROCEEDINGS

178 PART 2 ADMISSIBILITY

s 81 Was the previous representation made by the party whose interests the representation was adverse to?

YES

NO s 87 Was the representation made by someone authorised to speak for that party?

YES

Was the representation made within the scope of that authority?

YES

NO

Was the representation made by an employee of the party?

YES

Was the representation made within the scope of that employment?

YES

YES

Was the representation made to further that common purpose?

YES

s 84 Was the representation influenced by violence, oppression, inhumanity, degrading conduct or threats?

YES

THE EVIDENCE IS INADMISSIBLE

NO Was the representation made by someone in a common purpose with the party?

NO

NO

NO Is the proposed use of the evidence permitted under the hearsay rule or an exception to that rule? Was the representation contemporaneous with and did it cast light on a representation made by a party that was adverse to that party’s interests?

NO

NO

s 82 Is the evidence given by a person who perceived the representation being made?

NO

Is the evidence a document in which the admission was made?

NO

s 83 Is the evidence being used against a third party?

YES

Does the third party consent to that use?

YES

Is the proposed use of the evidence permitted under the opinion rule or an exception to that rule?

NO

YES

Is this a criminal proceeding?

YES

NO

THE ADMISSIBILITY OF THE EVIDENCE ISN’T AFFECTED BY ss 81–88

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YES

NO

YES

THE ADMISSIBILITY OF THE EVIDENCE ISN’T AFFECTED BY PARTS 3.2–3.4

THE ADMISSIBILITY OF THE EVIDENCE ISN’T AFFECTED BY PARTS 3.2-3.3. CONTINUE WITH THE NEXT CHART (FIGURE 8.2)

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Is the person’s failure to answer or respond a fact in issue in the proceedings?

YES

NO NO

NO Does the admission fall within s 89A of the Evidence Act 1995 (NSW)?

YES

Is the evidence of a previous representation by the defendant?

YES

YES

Was the representation adverse to the defendant’s interests in the outcome of the trial?

NO

NO

YES

Is the evidence adduced by the prosecutor?

s 90 Is it unfair to use the admission against the defendant (given how it was made)?

YES

Will the trial judge exercise a discretion to exclude the evidence?

NO

YES

NO

Was the representation made to or in the presence of a criminal investigator? YES

NO

NO

Was the representation made in response to questioning by an investigator?

Was the representation the result of an act by someone who was capable of influencing the prosecution?

YES

NO

Is this a Northern Territory or Victorian proceeding?

NO

YES

NO

YES

Is the evidence a written document prepared by the YES investigator and recordng an oral representation?

NO

Did the defendant acknowledge that the record was true by marking the document?

NO

YES

THE EVIDENCE IS INADMISSIBLE

THE ADMISSIBILITY OF THE EVIDENCE ISN’T FURTHER AFFECTED BY PART 3.4

NO

Yes YES

FIGURE 8.2 PART 3.4: FURTHER RULES IN CRIMINAL PROCEEDINGS

s 89 Is the evidence that someone failed to answer or respond to questions or representations by a criminal investigator?

Was the defendant a suspect at the time of the representation? YES

NO

Was the admission to a serious offence?

Yes YES

Is there a recording available of every question put to the defendant and every response made?

YES

Yes YES

s 85 Is the representation’s truth unlikely to be adversely affected by the circumstances in which it was made?

NO Is there a good reason for not making such a recording?

NO

YES

Yes YES

Is there are recording of a later interview where the defendant was asked to confirm that the earlier admission was made? NO

Yes YES

Is there a good reason for not making such a recording?

NO

NO

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Design note: please utilise a segment of the circle for the chapter number (as noted on page 23 of design notes)

180

JUDGMENTS AND CONVICTIONS

9

INTRODUCTION Part 3.5 (like Part 3.4 on admissions) is a modification of the hearsay and opinion rules for one category of opinionated hearsay, in this case factual findings by judges and similar decision-makers. The first part of the chapter describes the exclusionary rule for such evidence (which is replete with traps for the unwary). The second part describes the exceptions to that rule.

9.1 THE EXCLUSIONARY RULE Section 91(1) of the uniform evidence legislation is as follows: Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.

This minor rule is capable of major misunderstanding. Although the title of this section and Part of the legislation both refer to ‘evidence of judgments and convictions’, the rule’s terms cover any sort of decision and ‘any finding of fact’ made in any proceeding, such as a factual conclusion mentioned in a sentencing judgment. Moreover, the ‘proceeding’ referred to in section 91(1) is not limited to matters in traditional courts, but also includes proceedings before any person or body: • • •

‘authorised by an Australian law … to hear, receive and examine evidence’; or ‘authorised … by consent of parties, to hear receive and examine evidence’; or that ‘is required to apply the laws of evidence’.

So, the rule applies to decisions and fact-finding by tribunals and arbitrators. Also, section 91(1) is not, as its title states, an ‘[e]xclusion of evidence of judgments and convictions’, but rather a ban on resolving a current factual dispute by relying on how an earlier decision-maker resolved the same factual dispute. In Attorney General v Chan [2011] NSWSC 1315, an application to have a litigant declared vexatious, Adamson J held that section 91 did not preclude drawing on other factual findings from past judgments and decisions of courts and tribunals involving the defendant: The judgments establish the procedural matters and the outcome of various applications made by, and against, the Defendant, in the proceedings relied upon by the Plaintiff. Furthermore, they also record the Defendant's conduct in the course of the proceedings. These matters do not constitute findings of facts in issue in the proceedings. Whether such judgments contain statements which express judicial views on the merit, or otherwise, of the Defendant's stance in proceedings, the judgments are the best, if not the only, evidence of such views.

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However, any use of judgments or decisions to find facts that were witnessed and recorded by the decision-makers must still overcome the hearsay rule (if the previous decision-maker intended to assert those facts) and the opinion rule (if those observations involved inferences by that decision-maker). Indeed, as the exclusion of the outcomes of official decision-making is already achieved by the hearsay and opinion rules, section 91(1)’s additional exclusionary rule appears unnecessary. The official’s decision about the facts will inevitably be a previous representation (so long as the proceedings were separate from the trial where the outcome is to be adduced) and an opinion (so long as the facts were disputed in that proceeding). The apparent reason for having a separate exclusionary rule for such uses is to prevent the operation of the various exceptions to the hearsay and opinion rules. For example, in Attorney General v Chan, it is possible that the use of findings made in past vexatious proceedings that Adamson J ruled is prohibited by section 91(1)—findings about the merits of the litigant’s conduct at those proceedings—would fall within section 64(2)’s exception for first-hand hearsay in civil proceedings where it would be not reasonably practicable to call each decision-maker as a witness (assuming notice was given under section 67). And it is also possible that opinions expressed in those judgments about those merits may fall within the exceptions in sections 78 or 79 of the opinion rule. Section 91’s effect is that, even if those exceptions were established, any use of the fact-finder’s decision to resolve the same factual dispute is forbidden unless an exception to section 91 applies. There is no ban on using evidence of official decisions to find that the proceeding occurred and had a particular outcome. In Ainsworth v Burden [2005] NSWCA 174, the defendant was accused of defaming the plaintiff by imputing that he was not a fit and proper person to hold a gaming licence. The plaintiff adduced the covering pages of decisions by a licensing court rejecting just such a claim. The Court of Appeal held that such evidence could be used to prove that the defendant (who knew of the decisions) was aware of serious doubts about his allegations when he made them (a matter that could negate a privilege defence or justify higher damages):1 [T]he facts which the coversheets would have established were that a company associated with the plaintiff had made an application for a gaming licence, the police had objected to the grant of that licence, the terms of the grounds of objection, the rejection of the objection and the grant of the licence. None of the those facts was ‘a fact that was in issue’ in the Licensing Court proceedings, and s 91 did not exclude the coversheets stating those facts.

However, the coversheets could not be used to establish that the plaintiff actually was a fit and proper person (negating a defence of truth), as that fact was in issue in the proceeding. Unlike the hearsay and opinion rules, there is no exception to section 91 if evidence is admitted for another purpose.2 A difficult aspect of the rule involves distinguishing between using an official decision to prove the facts found by official (which is forbidden) and using it to prove that the official found those facts (which is permitted). In many instances, the fact that an official has already found facts will be relevant in a later proceeding, regardless of their truth, because of doctrines that bar re-litigation of those facts. Section 93 (arguably, unnecessarily) provides that section 91 does not affect three such situations: • • •

the rule preventing criminal verdicts from being disputed in defamation proceedings; the effect of judgments about the status of things (such as bank accounts); and the doctrines binding litigants to the results of earlier disputes between the same parties.

1 Ainsworth v Burden [2005] NSWCA 174, [109]. 2 See s 91(2).

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For example, section 91 does not prevent a party from adducing evidence of a previous decision (such as a defamation jury accepting a defence of truth to an imputation that a person was a ‘shonky operator’) to prevent the other party from asserting otherwise when cross-examined as to credibility in further litigation.3 Similarly, it does not prevent the admission of a defendant’s prior convictions in a criminal proceeding in the same jurisdiction (on the basis that both proceedings involve the same parties: the defendant and the state); however, other exclusionary rules may bar particular uses of those prior convictions or prevent the convictions from being adduced at all (see Chapter 10: Tendency and Coincidence; and Chapter 12: Character). However, section 91 does prevent the use of fact-finding in an earlier proceeding as evidence in later proceedings involving different parties. In R v Klobucar [2013] ACTSC 118, the defendant, charged with procuring another man (Silkeci) to traffic in methamphetamines, admitted that he had procured Silkeci’s conduct, but denied that Silkeci had committed the offence (on the basis that the latter did not intend to sell those drugs). Penfold J held that, just as section 76 barred the prosecutor leading evidence from Silkeci himself that he was guilty of the offence, section 91 likewise barred the prosecution from adducing evidence that a court had already found that Silkeci was guilty of trafficking those drugs: The exclusion of evidence of a conviction for the primary offence in a trial for a ‘complicity and common purpose’ offence under s 45 of the Criminal Code may look like a curious outcome at first glance. However, it needs to be remembered that: (a) Mr Klobucar would not have been represented at any trial of Mr Silkeci, and would have had no opportunity to cross-examine any of the witnesses or challenge any other aspect of the proceedings; and (b) Mr Klobucar would equally have had no opportunity to challenge any plea of guilty entered by Mr Silkeci or to explore the reasons for the entry of that plea. In those circumstances, it would be unfair to admit evidence of such a conviction against a third party such as Mr Klobucar.

As well, Penfold J noted, Silkeci’s conviction had in part been based on a statutory presumption that he intended to sell the drugs, which wasn’t available in Klobucar’s trial. She ultimately convicted Klobucar on the basis of testimony by the police about the drugs and by Silkeci about what he did with the drugs.

9.2 EXCEPTIONS TO THE RULE Section 92 sets out exceptions to the exclusionary rule (and to the hearsay and opinion rules as well) for two categories of decisions that are not generally covered by the savings provision in section 93 but are regarded as attended by particular procedural protections to ensure their accuracy. First, there is an exception for the court processes that follow a death. Section 92(1) permits the admission of grants of probate, letters of administration or similar court orders in any later proceeding, but only to prove the timing of a person’s death and the proper execution of a will. Second, section 92(2) permits the use of criminal convictions in later civil proceedings. This overturns a reviled ruling of the English Court of Appeal that, it was said, allowed unsuccessful defendants to re-litigate their convictions in later civil actions.4 An example of a case that section 92(2) would cover is one that led the Supreme Court of Western Australia to decline to follow the English rule. In the infamous Perth Mint Swindle, Mickelberg v Director of Perth Mint [1986] WAR 365, unidentified rogues with forged bank cheques relieved the mint of 2000 ounces 3 See Bass v TCN Channel Nine Pty Ltd [2006] NSWCA 343, [24]. 4 Hollington v Hewthorn [1943] KB 587; (1943) 2 All ER 35.

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of gold. After the Mickelberg brothers were convicted of the fraud, the Mint sued them for the value of the bars, but the brothers maintained that they were innocent. The Court permitted the Mint to offer the convictions as evidence of the Mickelbergs’ fraud. Section 178 provides for the proof of the fact of a conviction via a certificate from a judge, magistrate, registrar or proper officer (avoiding the need for that officer to testify or to find a relevant exception to the hearsay rule). Section 92(2) then allows a civil court to draw inferences about the particulars set out in the certificate, such as the elements of the offence, the date and place, and the identity of the victim or property involved. However, as section 92(2) is limited to a ‘conviction’, and hence does not extend to evidence of a sentence or appeal judgment, it does not permit a civil court to use sentencing remarks or an appellate judgment to find any further facts that are set out in that judgment.5 In Legal Services Board v McGrath [2010] VSC 266, a professional discipline action against a lawyer, Warren CJ held that an affidavit by an employee of the Board stating that she was informed by the prosecutor that the defendant had been charged with a child pornography offence and had pled guilty, although not evidence of any court decision, fell foul of the hearsay rule and could not fall within any first-hand hearsay exception (including the admissions exception). Likewise, a draft statement of facts that had been prepared for the defendant’s sentencing hearing could not be admitted under section 81 in the absence of evidence that it had been adopted by the defendant. In a subsequent hearing, the Board provided a certificate setting out the particulars of the defendant’s conviction (admissible under section 92(2)), which it supplemented with evidence from the police informant describing the child pornography found on the defendant’s computer and the defendant’s admissions about his offending and motivations (admissible under section 81), as well as a psychiatric report concerning him (admissible under section 79).6 The exception in section 92(2) is subject to two limits. First, the defendant must be (or be acted through by) a party to the civil proceeding, ensuring that the defendant has already had a chance to contest the evidence adduced in the earlier proceeding. The uniform evidence legislation also provides that, if section 92(2) is used, the defendant can ask the plaintiff to call any witness who testified at the criminal proceeding (thus allowing the defendant to cross-examine that witness again).7 Second, the conviction must not be set aside or subject to an unresolved appeal. In McGrath, Warren CJ held that a further certificate setting out a subsequent child pornography conviction could not be used to find further misconduct by the accused, because he had appealed against that conviction. These limits aim to reduce the risk that a civil court will be led into error by an incorrect criminal conviction. The significance of these protections was (eventually) made clear in the Mickelberg case itself, when the brothers (on their eighth attempt) succeeded in having the convictions quashed.8 Even if evidence of a judgment or conviction is admitted under either exception, its accuracy can still be disputed by the other party (and need not, in any case, be assumed by the fact-finder). In McGrath, the Chief Justice commented that, in disciplinary proceedings relying on criminal convictions: the plaintiff must bear in mind that the fact that a conviction has occurred is not of itself sufficient to demonstrate unfitness, nor is the fundamental question in issue whether such a conviction has occurred. The fundamental question is whether the person in question is not a fit and proper person to be a legal

5 6 7 8

Prothonotary of the Supreme Court of New South Wales v Livanes [2012] NSWCA 325, [8]–[18]. Legal Services Board v McGrath (No 2) [2010] VSC 332. See ss 166(g) and 167(b). Mickelberg v The Queen [2004] WASCA 145; (2004) 29 WAR 13.

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practitioner and likely remain so, on the balance of probabilities, for the indefinite future, and it is the plaintiff who has the onus of proving that fact.

She held that a mere certificate of conviction was insufficient in such cases, at least where there was no evidence that the conviction related to the defendant’s legal work. In the later hearing, she instead relied on the new evidence adduced by the Board (including evidence that the defendant’s interest in child pornography arose when he was a lawyer in a child sexual abuse matter) and his failure to disclose the second conviction (a matter not affected by section 91), to find that the onus had been discharged. There is no exception to section 91 for the other outcomes of a criminal case: a mistrial or an acquittal, as neither are evidence of findings of fact, but rather merely substantive or procedural doubts about conviction: Seldom, if ever, therefore, can a verdict of acquittal be understood as some positive finding by the jury in favour of the accused about any of the issues that may have been contested at trial.9

Nevertheless, after the Mickelbergs were acquitted, the Perth Mint chose to return some of the civil damages that they had received based in part of evidence of their earlier convictions, reportedly in the form of gold bars. One assumes that, this time, they asked for ID first!

SUMMARY • • • •

Evidence of a decision in another legal proceeding is inadmissible to prove the existence of any fact in issue in the proceeding. The rule applies even if the decision is admitted for another reason or would fall within an exception to the hearsay or opinion rules. The rule does not prevent the application of equitable and common law doctrines aimed at preventing the re-litigating of earlier decisions. Otherwise, the main exception to the rule is where the defendant’s finalised criminal convictions are used in later civil proceedings where the defendant is a party to infer the truth of the particulars of those convictions.

9 R v Carroll [2002] HCA 55; 213 CLR 635, [31].

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TENDENCY AND COINCIDENCE

10

INTRODUCTION Most of the uniform evidence law reduces the impact of the previous common law, but Part 3.6, entitled ‘tendency and coincidence’, goes in the other direction. It generalises one of the earlier law’s most notorious rules—the so-called ‘similar fact’ rule governing prosecution evidence about criminal defendants—and makes a modified version of it applicable to all evidence in all trials. This chapter details the part of the new regime that applies to most evidence. The uniform evidence law’s treatment of the narrower categories of evidence given special treatment by the previous law is left to Chapter 11: Credibility and Chapter 12: Character. The analysis proceeds as follows. First, it defines tendency and coincidence reasoning. Second, it addresses the two new exclusionary rules for such reasoning. Finally, it discusses tendency evidence about sexual offence complainants, a matter mostly regulated by local statutory rules.

10.1 TENDENCY AND COINCIDENCE REASONING ‘The playing of poker machines’, Jacobson J observed in Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd [2009] FCA 1495; (2009) 84 IPR 222, ‘is a mindless, repetitive and insidious form of gambling which has many undesirable features’, but ‘the manufacturers of those machines are nevertheless entitled to have their intellectual property protected against counterfeiting’. In 2005, one such manufacturer, Aristocrat, came to suspect that its copyright in the artwork, software and plates of its machines, as well as its trademarks, was being infringed by a pair of companies who were selling second-hand machines to customers in South America. Its suspicions were increased when an Anton Piller order it executed at the premises of a third company who sourced and refurbished machines for the exporters yielded blank software cartridges, CDs and hard drives containing Aristocrat software and fake Aristocrat compliance plates. But the poker machine manufacturer faced an enormous difficulty. The exporters insisted that they only sold genuine products, not counterfeits. The refurbisher said that the material on its premises was either licensed or never placed in any machines. Even if Aristocrat could locate, let alone inspect, the thousands of its poker machines in South America, it would be difficult to prove that any counterfeiting had occurred in Australia, much less with the knowledge of the exporters. So, when the trial commenced in the Federal Court, ‘notwithstanding the substantial resources of the Aristocrat companies, there was no physical evidence of infringing material’. Jacobson J was left to ponder ‘whether I can infer copyright infringement in the absence of direct evidence of the

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gaming machines which are said to have been counterfeited’. This same question would eventually be considered on appeal and in the High Court. This example illustrates the difficulties of legal proof in relation to past events that are only witnessed by the alleged wrongdoer, be they violent crimes, petty ones or mere civil wrongs. However, the situation may be quite different if it turns out that the particular events were part of a pattern that did leave behind some evidence. This section discusses in turn two sorts of reasoning that may become available if evidence of a pattern of human behaviour exists. It concludes by addressing the difficult question of identifying reasoning that is neither tendency nor coincidence reasoning and, hence, is not regulated by Part 3.6.

10.1.1 Tendency reasoning As Jacobson J observed, ‘the often repeated refrain of the [exporters] as to the absence of physical evidence … ignores the force of the evidence obtained on the execution of the Anton Piller orders’. Among the evidence uncovered and preserved by those orders were emails saved on the exporters’ computers that Aristocrat said included ‘instances of unguarded communications that make plain the true nature of the joint venture’s trade’. In other words, the emails were evidence of previous representations by the exporters that were adverse to their interests in the copyright litigation. As discussed in Chapter 8: Admissions, the uniform evidence legislation’s hearsay and opinion rules pose no barrier to their use against the parties in legal proceedings. However, some of those may be prevented by other rules. Although the emails’ significance was hotly disputed, Jacobson J found that they showed the exporters’ clients planning to counterfeit Aristocrat’s artwork and software, and the exporters arranging with the refurbisher to make fake plates for exported machines. Moreover, after Aristocrat’s first Anton Piller orders were executed, the exporters hurriedly shifted some of their discussions to cloud-based email. What (if anything) did these discussions reveal about Aristocrat’s claim that the exporters were selling counterfeits themselves? At first glance, it might seem that the emails say nothing about the machines the exporters sold. The counterfeiting by clients discussed in the emails was occurring in South America and the fake plates for the exported machines were not necessarily copies of Aristocrat plates. Nevertheless, Jacobson J held that the emails supported a number of inferences about the exporters themselves. In particular, he inferred from the emails that the exporters: • • •

were willing to assist customers to copy Aristocrat works; were willing to export machines with fake compliance plates; and were concealing some of their business discussions from a copyright owner.

It is debateable that any of these inferences about the exporters could be drawn with certainty from a handful of emails. Clearly, the inferences Jacobson J drew would have been stronger if there was direct evidence that the emails were anything more than just talk. However, whether weak or strong, such inferences are examples of the reasoning regulated by section 97(1) of the uniform evidence legislation, which commences: 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 …

The emails are ‘evidence of … conduct of a person’ (the exporters) that Jacobson J used ‘to prove that’ the exporters ‘had a tendency … to act in a particular way’ (that is to be willing ‘to assist the “serial counterfeiters” in South America in carrying out their actions’). The uniform evidence

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legislation refers to this type of reasoning as ‘tendency reasoning’ (although common lawyers may see a resemblance to what was previously called ‘propensity’ or ‘disposition’ reasoning). Examples of tendency reasoning include: •

• •

evidence that people seeking to enforce a written guarantee had engaged in various disreputable acts involving documents (including backdating, fraudulent production and false signatures), used to infer that those people have a tendency to falsify documents;1 evidence that an agent of a shopping centre owner repeatedly made certain representations to prospective tenants, used to infer that the agent has a tendency to make such representations;2 evidence that the alleged victim of a shooting (where the defendant claimed self-defence) had, on earlier occasions, carried or had access to a firearm.3

Such reasoning only matters in a proceeding if there is a further step in the argument: that the asserted tendency manifested itself on a particular occasion at issue in the proceeding,4 for example, that the people who had the above tendencies respectively falsified a particular document, made a particular representation to a particular tenant or carried a fire-arm on a particular occasion. Likewise, any tendency the exporters had to assist their customers in making counterfeit Aristocrat items is relevant to the copyright proceedings only to the extent that a further inference can be drawn that their desire to assist their customers meant that they would ship machines to South America that they knew contained counterfeit Aristocrat works. To the extent that both inferences are true, they can establish part of Aristocrat’s ultimate claim that the exporters authorised breaches of copyright. However, a court is potentially barred from drawing the first inference at all because of section 97(1). Section 97(1)—the ‘tendency rule’—is not limited to tendencies inferred from ‘conduct’. It also applies to inferences from evidence of a person’s ‘character’, ‘reputation’ or ‘a tendency that a person has or had’. Thus, it would also regulate inferences about the exporters’ tendencies based on evidence of their attitudes to copyright law, their reputation for meeting clients’ needs or their tendency to take business risks. And it is also not limited to tendencies to ‘act’ (for example, to assist their customers in illegal activities), but equally covers tendencies to have a particular ‘state of mind’ (for example, a tendency to be nonchalant about copyright law) or tendencies to fail to act5 (for example, a tendency to not check that their machines were genuine). A limit on section 97(1) is that it only regulates inferences about the tendencies of a person. In Combined Insurance Company of America v Trifunovski (No 4) [2011] FCA 271, the Federal Court held that this includes the tendency of a corporation (for example, to employ people on a ‘master and servant’ rather than ‘principal and contractor’ basis). Hence, the tendency rule would apply whether Jacobson J’s inferences were about the writers of the emails or about the practices of the their joint venture. But it would not regulate an inference about the tendency of particular types of poker machines to be counterfeited or of particular industries, markets, countries or continents to be lawless. As well, section 97 only regulates inferences about the acts or state of mind of the person who had the tendency in question. So, it would not be tendency reasoning to use evidence of a particular customer’s tendency to seek counterfeit Aristocrat works to infer that the exporters had a reason to sell counterfeit machines to that customer.

1 2 3 4 5

Zaknic v Svelte Corp Pty Ltd [1995] FCA 1739; (1995) 61 FCR 171. Jacara v Perpetual Trustees WA [2000] FCA 1886; (2000) 106 FCR 51. Elias v The Queen [2006] NSWCCA 365, [19]. Gardiner v The Queen [2006] NSWCCA 190; (2006) 162 A Crim R 233, [124]. Section 96.

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10.1.2 Coincidence reasoning Aristocrat’s Anton Piller orders not only uncovered the exporters’ ‘unguarded’ communications with others, but also the exporters’ internal records of their dealings (admissible for their hearsay use under the business records exception). Crucially, this ‘snowstorm of paper’ included invoices describing the poker machines they exported. One relevant detail was the unique serial numbers on the machines’ compliance plates, which are necessary for the machines to be lawfully used both in Australia and South America. Aristocrat’s analysis found anomalies in thousands of the numbers recorded in the invoices: some appeared to be specific to Aristocrat machines but did not match Aristocrat’s records of the machines it had made; some matched machines that the NSW gambling regulator’s records showed were still in NSW; some were duplicates of serial numbers on invoices describing other exports. What (if anything) does this reveal about what was inside the machines described in the invoices? It turns out that none of the individual anomalies was significant on its own. Handwritten, or handtyped, or even computer scanned records of serial numbers can be, indeed often are, simply incorrect. Equally, the databases of Aristocrat and the regulators may also be wrong and some of the apparent anomalies may reflect genuine, albeit unusual, transactions, such as exported machines being later re-imported to Australia. Rather, what is significant is the sheer number of anomalies, arguably too great a proportion of exports to all be typos or sample errors or unusual transactions. If the set of anomalies is too large to be plausibly explained individually in these ways, then the alternative explanation is that the anomalies have a common cause. One such cause is that that the numbers on the exported machines were invented by someone involved in their export. Clearly, there remains the possibility that there was a different common cause for the mass of anomalies or that some or all of them were innocuous or were invented by someone else or lots of different people. However, to the extent that the invoices can be used to infer that someone involved in the exports invented many or all of them, it is an example of the evidence regulated by section 98(1), which begins: 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 …

The invoices are ‘evidence of 2 or more events’, that is exports of machines with anomalous serial numbers. The argument that there are too many anomalies to be explained on the basis of individual mistakes, counterarguments or transactions for each invoice, number or machine is an inference ‘on the basis that … it is improbable that the events occurred coincidentally’. That argument rests on ‘similarities’ of the events and circumstances, that is a large number of a particular exporter’s exports recorded as having anomalous serial numbers. The inference that the common cause was that numbers were invented by someone involved in the exports is a finding that ‘a person did a particular act’. If a further inference could be drawn that the exporters must have known that the numbers on were invented, then that is a finding that a person ‘had a particular state of mind’. The Dictionary defines the reasoning dealt with by section 98(1) as ‘coincidence reasoning’, although common lawyers may recognise it as ‘similar fact’ reasoning (or, less commonly, ‘probability’ or ‘objective improbability’ reasoning). Examples of coincidence reasoning include: •

an insurance company, facing a claim for fire damage to the insured’s home, leading evidence of several other fires that had occurred in homes occupied by the insured and with respect to

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•

•

•

which insurance claims had also been made, to support an inference that the insured started the fire in question;6 evidence of methamphetamine, steroids and prescription drugs found in a wardrobe, which the accused admitted possessing, used to show that he also possessed heroin also found in the wardrobe;7 evidence of four large unauthorised withdrawals on a government credit card, each occurring either shortly before or after the owner of the card gambled and lost large amounts of money at a casino, used to show that the owner withdrew the money to gamble; and8 evidence of overstatements of a person’s income in three different home loan applications, used to show that none of the overstatements were the result of an accidental error in filling out the form.9

In all these cases, inferences that a person acted in a particular way or had a particular state of mind follow from an initial inference that the series of events in evidence were likely to have been caused by a particular person. In each case, the inferred act or state of mind (or a further inference from those) must be a fact in dispute in the proceedings, for example, whether an insurance claim is payable, or whether the defendant knew of the heroin, or whether a government credit card was used for personal purposes, or whether loan applications were a deliberate fraud. Likewise, the reasoning that the mass of anomalies in the invoices indicated that someone connected with the exporters was inventing the serial numbers only matters in the copyright proceeding if a further inference could be drawn that the machines had counterfeit components inside them. Given that there was really only one reason for someone to invent a poker machine’s serial number—to conceal a mismatch between the number on the original compliance plate, which is specific to the original manufacturer, and the software and artwork actually in the exported machine—that further inference could clearly be drawn. However, a court is potentially barred by section 98(1) from drawing the initial inference that the anomalous serial numbers must have been invented by someone. The reasoning regulated by section 98(1)—‘the coincidence rule’—can support a much broader range of conclusions than tendency reasoning. While tendency reasoning always involves conclusions about a known person, coincidence reasoning can support a variety of conclusions about an event whether or not anything is known about the cause of the event, the identity of the person involved or the tendencies (if any) that person has. For example, section 98(1) would regulate the following conclusions if they were inferred from the likelihood that the anomalies in the serial numbers had a common cause: • • • • •

6 7 8 9

the exporters or someone they dealt with had invented new serial numbers for the exported machines; the exporters or someone they dealt with were putting fake plates with those numbers on machines; the exporters were exporting machines with fake numbers and plates; the exporters were exporting machines with counterfeit artwork or software; or the exporters or someone they dealt with knew that the machines contained counterfeit artwork or software.

Sheldon v Sun Alliance Ltd (1988) 50 SASR 236. Azzi v The Queen [2013] NSWCCA 249. Vitler v Chief of Army [2008] ADFDAT 4. CV v DPP [2014] VSCA 58.

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Again, the uniform evidence legislation is concerned only with conclusions about the acts (or failure to act)10 or state of mind of ‘a person’. For example, it would not be coincidence reasoning to infer that the probable explanation of the large number of anomalies was widespread corruption or negligence in the regulation of poker machine plates, or a computer glitch in the issuing of serial numbers, or the weathering of the compliance plates. Coincidence reasoning is based on a narrower category of evidence than tendency reasoning. Whereas a person’s tendencies can be inferred through many sources of evidence about a person— that person’s conduct, character, reputation or tendencies—coincidence reasoning always involves evidence of events. In Townsend v Tasmania [2007] TASSC 17, Tasmania’s Court of Criminal Appeal held that ‘event’ is not limited to an action or occurrence, but may also extend to a state of affairs, such as possession. In that case (somewhat similarly to the invoice evidence in Aristocrat), the court was invited to infer, from evidence that a Hobart man possessed multiple cars stolen from Victoria and rebirthed in similar ways, that he knew that each of them was stolen. Moreover, while a person’s tendencies can be established by a single action, coincidence reasoning must be based on evidence of at least two events. So, it would not be coincidence reasoning to simply infer that a particular sort of anomaly in a single machine’s serial number can only be explained by the machine containing counterfeits. A note to section 98 makes it clear that one or more of the events used to support coincidence reasoning can be the ultimate event that is in issue at the trial. For example, in Chief Executive Officer of the Australian Customs Service v Karam [2009] NSWSC 1223, the dispute was over whether the defendants knew that a container they imported contained cigarettes hidden behind some shoes. McCallum J held that emails the defendants had sent about a second importation from the same location that referred to shoes and cigarettes could support coincidence reasoning that the defendants knew that cigarettes were in the disputed container.

10.1.3 Pattern reasoning It is important to recognise that there is a large degree of overlap between tendency reasoning and coincidence reasoning. Both sorts of reasoning rely on the simple generalisation that individual human behaviour often occurs in patterns, but they rely on that generalisation in contrasting ways. Tendency reasoning involves using evidence about a particular person to infer that a pattern of behaviour will follow. Coincidence reasoning proceeds in the other direction, using evidence about a particular pattern of behaviour to infer that a person was behind it. What sort of reasoning is used depends largely on what is otherwise known about the pattern in question. For example, in Aristocrat: •

•

the emails revealed information about the exporters, specifically their pattern of behaviour when it came to counterfeiting and therefore their likely knowledge of whether the machines they exported contained counterfeits; and the invoices revealed information about the machines, specifically the pattern of anomalous serial numbers recorded from the machine’s plates, and therefore the likelihood that someone had put counterfeit works in the machines.

In this case, it was the combination of these two sources of evidence and types of reasoning that could be used to overcome the lack of direct evidence about the exports, by allowing a court to infer that the exporters were knowingly exporting machines containing unlicensed copyright

10 Section 96.

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works (which in turn is what was needed to sustain an action against them for authorising a breach of copyright). That pattern evidence is available does not mean that a court will necessarily draw inferences from it. As it happens, in Aristocrat, Jacobson J was willing to use the emails to infer that the exporters knew exactly what was inside the machines they exported (including any counterfeit works), but was not willing to use the invoices to infer that all or even many of the machines actually contained counterfeits. That was because he found that the mass of apparent anomalies in the invoices could be explained by a different common cause—systemic flaws in Aristocrat’s analysis of the invoices and numbers. As a result, he was only prepared to find that nine transactions (of 58 exported machines) contained counterfeit works, based on individual evidence that serial number anomalies for those transactions could not be accounted for and other evidence that those exports contained counterfeits. Jacobson J then used the emails to conclude that the exporters most likely knew of the counterfeiting in those transactions. Multiple overlapping instances of tendency and coincidence reasoning may be rationally open where there is an abundance of evidence about both the person and the events in dispute. For example, in SMEC Holdings v Boniface [2005] NSWSC 1099, another case about emails, the plaintiffs alleged that the defendant, a former employee, had sent a series of messages defaming the plaintiffs. Some of the emails had been sent from the defendant’s work computer, while others were sent from a computer store where he was sometimes seen using the display computers. And some of the emails had distinctive similarities in subject-matter, style, spelling errors, timing or software. The trial judge held that this combination of direct evidence, tendency evidence and coincidence evidence (along with the defendant’s motives to defame the plaintiffs, based on a dispute between the plaintiffs and his father) was enough to allow a jury to find that the defendant was responsible for all of the correspondence. In these sorts of cases, it will often be difficult to distinguish clearly between overlapping tendency reasoning and coincidence reasoning. Fortunately, the uniform evidence legislation regulates both sorts of reasoning in the same way, so it typically will not matter much which reasoning is relied upon.11

10.1.4 Other circumstantial reasoning A far less tractable problem is distinguishing between tendency and coincidence reasoning, on the one hand, and other sorts of reasoning. Indeed, neither of the trial judges in Aristocrat and SMEC Holdings realised that their use of the emails actually involved tendency or coincidence reasoning. The consequences of this failure can be significant. In SMEC Holdings, one appeal judge found that the comparison of emails and letters involved coincidence reasoning and held that section 98 barred the use of that reasoning to link one piece of correspondence (a hard copy letter, with many different features to the remaining eight emails) to the other defamatory communications.12 More dramatically, in Aristocrat, the Full Court of the Federal Court held that Jacobson J’s use of the emails to reason about the exporters did not comply with the tendency rule, and accordingly quashed all of his findings against the exporters.13 So, distinguishing between reasoning that is and is not regulated by Part 3.6, while difficult, is crucial. A starting point is to recognise that tendency reasoning and coincidence reasoning are particular instances of circumstantial reasoning (see Chapter 4: Relevance), but that not all circumstantial reasoning is tendency or coincidence reasoning. For example, if one of the poker

11 See also Hudson v The Queen [2011] NZSC 51; [2011] 3 NZLR 289, [58]–[59]. 12 Boniface v Smec Holdings Limited [2006] NSWCA 351. 13 Allam v Aristocrat Technologies Australia Pty Ltd [2012] FCAFC 34.

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machine invoices with an anomalous serial number was issued immediately after a customer emailed a request for a fake compliance plate from the exporters, it could obviously be argued the number was anomalous because that particular machine’s compliance plate was fake. Similarly, if one of the exporters’ machines was found in South America with fake software installed, then it can be argued that that was because that particular machine was exported with fake software. These inferences can be drawn without any reference to exporters’ tendencies or any assessment of the similarity of these events. The distinction between these instances of circumstantial reasoning, on the one hand, and tendency and coincidence reasoning, on the other, is that, in the case of the former, the inference is that one event caused the other, while in the case of the latter, the inference is that two or more events have a common cause. However, there is a substantial grey area where it is difficult to distinguish between regular causal reasoning and tendency or coincidence reasoning. For example, when the case reached the High Court, Aristocrat argued that Jacobson J merely used the emails to determine what the exporters knew, rather than what their tendencies were. The exporters’: knowledge or belief as to the fact that their companies were in the business of offering to supply gaming machines with fake serial numbers or gaming machines with copied Aristocrat software, was plainly relevant to the question of whether [they] knew or had reason to believe that the gaming machines which those very companies supplied in other transactions contained infringing components …

The High Court rejected this argument, noting that Jacobson J expressed his findings in terms of what the exporters were ‘willing’ or ‘prepared’ to do in their business dealings, rather than just what they knew. However, in the authors’ view, Heydon J was correct to observe at an earlier hearing that people sometimes use the language of tendency (and, the authors would add, coincidence) loosely to describe a variety of characteristics that people (or events) can have.14 Examples of arguments close to the boundary line include the following: •

•

•

•

In Jacara v Perpetual Trustees WA [2000] FCA 1886; (2000) 106 FCR 51, the court accepted that evidence that a landlord’s agent had received instructions about making particular representations to tenants could be adduced without satisfying the tendency rule, on the basis that the evidence established a system that might have operated at the time of the disputed dealings between the agent and the tenant. However, it held that evidence that the agent had actually made similar representations to other tenants could not be used to establish such a system unless section 97(1) was complied with. In Cornwell v Riley [1999] FCA 727, it was alleged that the defendant, organising a tender for government cleaning services, had altered the price on one company’s tender document so that it was just above the price of an opposing tender. The Federal Court held that evidence that the defendant, on another occasion, had improperly opened sealed tender boxes without a witness present was admissible without complying with the tendency rule, on the basis that it showed how he could have come to know the price of the opposing tender. In Bridges v Pelly [2001] NSWCA 31, there was a dispute about whether the plaintiff or her doctor initiated discussion of chin reduction surgery. The NSW Court of Appeal held that evidence that the plaintiff had initiated such a discussion with another doctor was not coincidence evidence, but rather was used to show that she had a continuing concern about her chin that was independent of her meeting with the defendant doctor. In R v Cakovski [2004] NSWCCA 280; (2004) 149 A Crim R 21, evidence that an alleged murder victim had himself murdered three people two decades earlier was held not to be tendency evidence by a majority of the NSW Court of Criminal Appeal, but rather simply showed the victim to be different from others in terms of inhibitions about killing and accordingly cast the

14 Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd [2012] HCATrans 296.

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•

•

defendant’s account of self-defence in a favourable light. This analysis was rightly doubted by a third judge, Hidden J. In Martin v Tasmania [2008] TASSC 66; (2008) 190 A Crim R 77, where it was alleged that the defendant procured another person to attack the home of a patient who had accused him of sexual harassment, Crawford CJ held that evidence that the defendant had altered or destroyed files relating to the patient and falsely reported a burglary to conceal those acts, ‘amounted to evidence of conduct of the appellant that was capable of proving that he had a tendency to do whatever he could, no matter whether it was criminal or dishonest, to avoid an adverse finding by the Tribunal’. However, Blow J held that ‘it is fanciful to think that the jury would have treated the evidence in question as evidence of some sort of tendency, rather than as evidence of the appellant’s state of mind in a particular situation’. In ACCC v Air New Zealand Limited (No 1) [2012] FCA 1355, Perram J held that evidence that airlines had lifted and reduced airline surcharges at similar times and by similar amounts, adduced alongside evidence of meetings within the airlines and the regulatory background, to support an argument that the surcharge changes were the result of an agreement, was evidence of ‘consistency, not coincidence’.

Some of these boundary issues may be partly resolved by consideration of the statutory language in sections 97(1) and 98(1). In Cantarella Bros Pty Ltd v Andreasen [2005] NSWSC 579, the alleged tendency was of a coffee shop proprietor to insist on free umbrellas from coffee providers. Hamilton J remarked: The difficulty that I have with the proposition that this is tendency evidence is that evidence of statements made by a person in one negotiation for a particular contract tendered as reflecting on what was said in the negotiations with another person for a contract would not, in ordinary language, lead one to say that the person who made the statements has a particular tendency, being a tendency to make such statements. In my view this is illustrated if one goes to dictionary definitions. The first definition of tendency in the Macquarie Dictionary (3rd ed. revised, 2001) is: Natural or prevailing disposition to move, proceed, or act in some direction or towards some point, end or result. The first definition in the Shorter Oxford English Dictionary (5th ed., 2002) is similarly: The fact or quality of tending to something; a disposition, leaning, or inclination toward some purpose, object, result, etc. It appears to me from these definitions that the word ‘tendency’ imports a degree of generality. It seems to me a contorted and unnatural use of language to say that Mr Renshaw had a tendency in negotiating this contract to insist on the provision of umbrellas as a precondition of dealing.

If this approach is correct, then it may be argued that the poker machine exporters’ ‘tendency’ to assist clients’ in counterfeiting found by Jacobson J was too specific to be the finding of a ‘[n]atural or prevailing disposition’ that Hamilton J considered was the type of reasoning regulated by section 97(1). However, an alternative view is that section 97(1)—particularly its reference to ‘a tendency (whether because of the person’s character or otherwise)’—covers both reasoning about general dispositions and reasoning about very specific ones. The language of section 98(1) specifies that the finding that ‘2 or more events’ did not occur coincidentally is only coincidence reasoning if it is made: 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 …

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In R v Johnston [2012] ACTSC 89, a case where the accused was alleged to have drugged children in order to sexually assault them, Burns J held that evidence that his computer contained pornography depicting sleeping children may support tendency reasoning against the accused, but was not coincidence reasoning, as there is no similarity between an assault and the possession of pornography. In Azzi v The Queen [2013] NSWCCA 249, the NSW Court of Criminal Appeal held that, while evidence of multiple drugs that the accused admitted owning in a wardrobe could be offered as coincidence reasoning to conclude that he also owned heroin found in the wardrobe, his initial false claim that one of the other drugs was ‘sugar’ could not be offered as part of that coincidence reasoning, as it was not relevantly similar to any of the other findings of drugs. As the Court noted, representations could count as events for the purposes of the coincidence rule, for example, the representations about serial numbers contained in the invoices in Aristocrat. What is crucial, though, is that the events or their circumstances are similar. One category of evidence about people or separate events that is not regulated by Part 3.6 is evidence that is adduced not to prove anything of itself, but simply as an adjunct to other evidence. The United Kingdom’s Law Commission has identified two distinct ways in which evidence of other behaviour or events can play an explanatory role in legal proceedings.15 First, reference to other behaviour or events may be necessary to facilitate the narration of events by witnesses. For example, in SMEC Holdings, the plaintiffs testified that the defendant was sacked after pornography was found on his computer during an investigation into the source of the emails. That use of his computer was contrary to a company policy promulgated after an earlier occasion when pornography was found on the defendant’s computer. This evidence was not adduced to argue that the defendant had any particular tendency, but simply to narrate how he came to be sacked. Such incidental events may not have any relevance to the questions in dispute in the proceedings; however, omitting them may result in the evidence of the events appearing incomplete or odd. Second, to make some evidence intelligible, the fact-finder may need to be told about the character of the people involved or about events or behaviour that form part of the background to the occasion in dispute. For example, in SMEC Holdings, there was evidence that the plaintiff ’s company had been investigated for bribing overseas officials and that the defendant’s father had been investigated for anomalies in his expense claims, together providing motives for the defendant to defame the plaintiffs. According to the Law Commission: [T]he value of the kind of fact which provides essential background is not that a specific fact in issue can be inferred from it, but simply that if the fact-finders did not hear of it, they would find it harder to understand the nature of what is alleged. Strictly speaking, it has explanatory value, not probative value.16

Such evidence may or may not be relevant. But what is clear is that it could not and, should not have to satisfy the requirements imposed by sections 97 and 98. It is clear that a significant amount of evidence will be capable of supporting both tendency or coincidence reasoning and other reasoning that is not regulated by sections 97 and 98. Like most exclusionary rules of evidence, the tendency and coincidence rules do not regulate whether evidence is admissible, but only when such evidence can be used to support, respectively, tendency reasoning or coincidence reasoning. So evidence of events, conduct or personal characteristics that is relevant for other purposes will be admissible for those other purposes whether or not the tendency and coincidence rules are satisfied. For example, in Aristocrat, it was common ground

15 See the Law Commission, Report No 273: Evidence of Bad Character in Criminal Proceedings, 2001, London: Home Office, Part 10. 16 Ibid., 10.7.

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that the emails were admissible to show the existence of a close relationship between the exporters and the refurbisher, and also to cast doubt on the honesty of those emails’ authors. However, section 95 expressly provides that evidence that is not admissible for its tendency or coincidence purpose ‘must not be used to prove that matter even if it is relevant for another purpose’. So, even though the emails could be properly used against the exporters, Jacobson J was still in error to use the emails for a tendency purpose. In this respect, the tendency and coincidence rules contrast sharply with the uniform evidence legislation’s hearsay, opinion and credibility rules, which have exceptions for evidence that is relevant for a purpose other than a hearsay, opinion or credibility purpose.

10.2 THE EXCLUSIONARY RULES In contrast to the hearsay and opinion rules, the tendency and coincidence rules are each subject to inclusionary exceptions that are as broad as the rules themselves. The result is that, rather than being generally excluded, tendency and coincidence reasoning is permitted so long as two quite surmountable conditions are satisfied: • •

a requirement to give reasonable notice in writing to opposing parties; and a requirement that the evidence have ‘significant probative value’.

In Aristocrat, the Full Court of the Federal Court held that the tendency reasoning in that case was barred because no notice was given by Aristocrat of the use of the emails to support a tendency and the trial judge neither waived the notice requirement nor found that that use had significant probative value. The two requirements are discussed in turn below. The section will conclude by discussing the exceptions to the two rules.

10.2.1 Notice When a party adduces evidence of events that are not causally related to the matter in dispute, there can be considerable unfairness to the opposing party. A party to legal proceedings should be ready to respond to arguments about the event in question, but may be completely unaware of other events that are alleged to be part of a broader pattern. While courts have general powers to prevent such ‘ambushes’, Part 3.6 responds to this difficulty in the case of tendency and coincidence reasoning by requiring that: 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 …17

According to the NSW Court of Appeal: The purpose of a [tendency] notice is first, to ensure that attention is given to specific conduct and the circumstances of the conduct, and secondly, to enable the person whose conduct is in question to meet the tendency evidence. The purpose is linked with the decision upon probative value to be made by the court, since only with knowledge of specific conduct and the circumstances of the conduct can a proper assessment be made of the probative value of the evidence in relation to the conduct alleged in the trial.18

17 Sections 97(1)(a) and 98(1)(a). 18 Martin v NSW [2002] NSWCA 337, [91].

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A failure to give notice has the prima facie consequence that the evidence becomes inadmissible for its tendency or coincidence use. However, the notice requirement is subject to flexible exceptions. First, no notice is needed to adduce tendency or coincidence evidence to ‘explain or contradict’ such evidence adduced by the opposing party.19 (Note that such evidence must still meet the test of significant probative value.20) Second, section 100 of the uniform evidence legislation provides for the ‘waiver’ of the notice requirement on the application of the party adducing the evidence. In R v Harker [2004] NSWCCA 427, the NSW Court of Criminal Appeal held that trial judges contemplating a waiver should consider the ‘prejudice’ to the other party, in the sense of disadvantage resulting from the lack of notice, as well as the probative value of the evidence. Waiver may be subject to conditions and the problem of prejudice may be avoided through an adjournment. Regulations in each jurisdiction require that the notice set out:21 • •

the ‘substance’ of the evidence relied upon; and for tendency evidence of a person’s conduct and all coincidence evidence: – the date, time, place, circumstance and of the conduct or events; and – the names (and, in civil proceedings or if a court orders, addresses) of witnesses to the conduct or events.

In Townsend v Tasmania [2007] TASSC 17, the prosecution’s notice said that evidence of the similar characteristics of eight stolen vehicles the defendant possessed would be given by sixteen named witnesses ‘but reference is made also to the Crown papers generally and all witnesses referred to therein’. Tasmania’s Court of Criminal Appeal accepted that the notice failed to identify the date, time, place and circumstances in which the ‘conduct’ or ‘events’ occurred, as well as the inference to be drawn. However, the Court held that there was no prejudice to the defendant, given that the stolen vehicles were the subject-matter of the charges being tried and the notice ‘made it abundantly clear that the State wanted to go as far as it could in relying on tendency and coincidence evidence’. Like the notice in Townsend, many notices fail to clearly or correctly state whether the evidence to be adduced is tendency evidence or coincidence evidence. In Gardiner v The Queen [2006] NSWCCA 190; (2006) 162 A Crim R 233, the prosecution, trying to prove that the defendant had knowledge of guns found in a storage unit leased in his name, issued a tendency notice describing evidence of guns found in a clubhouse the defendant presided over. The Court expressed concern that the trial judge, in determining the admissibility of the evidence, did not identify the tendency being relied upon and, indeed, that the relevant reasoning was really coincidence reasoning. Simpson J observed: A properly drafted tendency evidence notice should, in my opinion, explicitly identify the fact or facts in issue upon which the tendering party asserts the evidence bears. It should also explicitly identify the tendency sought to be proved.22

In R v Teys [2001] ACTSC 29; (2001) 161 FLR 44, Miles CJ held that the fact that the prosecution had given a ‘tendency evidence’ notice in relation to evidence that was properly classified as

19 Sections 97(2)(b) and 98(3)(b). 20 Bective Station Pty Limited v AWB (Australia) Limited [2006] FCA 1596, [85]. 21 Evidence Regulations 1995 (Cth), reg 6; Evidence Regulations 2012 (ACT), regs 8–10; Evidence (National Uniform Legislation) Regulations 2012 (NT), regs 6, 7; Evidence Regulation 2010 (NSW), regs 5, 6; Evidence Regulations 2012 (Tas), reg 5; Evidence Regulations 2009 (Vic), regs 7, 8. 22 Gardiner v The Queen [2006] NSWCCA 190; (2006) 162 A Crim R 233, [128].

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coincidence evidence did not prejudice the defendant. In R v Bell [2002] NSWCCA 195, the NSW Court of Criminal Appeal responded to a similar situation by permitting the evidence to be used only for its tendency purpose. The authors’ view is that, given the overlap between the two forms of reasoning, the former approach is preferable and that section 100 should be used to permit the correction of a notice unless there are grounds to regard the change as unfair to the opposing party.

10.2.2 Significant probative value In practice, tendency reasoning and coincidence reasoning tend to play a supportive role to other evidence that is more directly associated with a fact in issue. However, in this guise, their role is potentially extensive because there is often considerable scope for one party to characterise the event in dispute as part of a broader pattern. To limit the overuse of tendency and coincidence reasoning, the uniform evidence legislation imposes a heightened relevance test, requiring that: 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.23

This requirement—juxtaposing a ‘use’ rule with a ‘probative value’ test of what the court ‘thinks’— has attracted some debate in the NSW Court of Criminal Appeal, which recently held that, in jury trials, the judge must assess whether a hypothetical jury would see the evidence’s probative value as significant.24 The legislation does not define ‘significant probative value’ and, to a large extent, the test defies analysis. In R v Lockyer (1996) 89 A Crim R 457, the word ‘significant’ was equated with ‘important’ or ‘of consequence’. In Jacara v Perpetual Trustees, the Federal Court noted that the use of the term ‘thinks’ indicates that this precondition is really a discretionary decision, involving ‘a degree and value judgment’.25 However, the Court observed that there are three factors that will usually be taken into account. The first factor is the ‘cogency of the evidence relating to the conduct of the relevant person’.26 The cogency factor is mainly concerned with the capacity of the evidence about the alleged conduct or event to support the nuances of tendency or coincidence reasoning. Evidence that is inherently vague or non-contextual is unlikely to be capable of performing that role. In Ibrahim v Pham [2007] NSWCA 215, a trial judge in a case involving alleged misleading representations was held to have correctly rejected purported tendency evidence that consisted of the earlier dealings between the parties, where the relevant representations occurred in a variety of contexts and were the subject of disputes between the participants. The Court noted that the ‘generality’ of the tendency notices—which asserted that the defendants responded to investors by either encouraging them or remaining silent about their own interests—was a significant handicap to satisfying the requirement of significant probative value. The second factor is the ‘strength of the inference that can be drawn from the evidence as to the tendency to act in a particular way’.27 In Jacara, the dispute concerned whether particular

23 24 25 26 27

Sections 97(1)(b) and 98(1)(b). DSJ v The Queen; NS v The Queen [2012] NSWCCA 9; (2012) 259 FLR 262, [72]. Jacara v Perpetual Trustees WA [2000] FCA 1886; [2000] 106 FCR 51, [76]. Ibid. Ibid.

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representations had been made by a shopping centre’s agent. The tenant adduced evidence of other representations made by the agent in relation to the shopping centre. But the evidence involved different types of representations and occurred at different stages in a shopping centre development. The differences left open too strong a possibility that the agent had no particular tendency in relation to making representations. The Federal Court held that the evidence accordingly failed the test of significant probative value. In Bective Station Pty Limited v AWB (Australia) Limited [2006] FCA 1596, a dispute about whether the defendant’s customer manager had made particular claims about the market for wheat, Branson J held that evidence called by the plaintiff that the manager had made such claims on other occasions met the test of significant probative value, while evidence called by the defendant that the manager had not made such claims on a further set of occasions did not meet that test. In the context of coincidence reasoning, the relevant issue is the strength of the inference that the events in question were not a coincidence. The Canadian Supreme Court (applying the common law’s similar fact rule, applicable in criminal proceedings) formulated the following list of matters that are relevant to this assessment:28 • • • • • • •

the proximity in time of the events; the extent to which the events are similar in detail; the number of occurrences of events; the circumstances surrounding or relating to the events; any distinctive feature(s) unifying the events; any intervening events; and any other factors that tend to support or rebut the underlying unity of the events.

In CW v The Queen [2010] VSCA 288, the Victorian Court of Appeal held that otherwise dissimilar fires could satisfy the requirement of significant probative value, where each fire involved a person with whom the defendant was in a business dispute. Likewise, the same Court in C V v DPP [2014] VSCA 58 held that evidence of misstatements in three loan applications by the accused could satisfy the test, despite differences in the misstatements, the purpose of the applications and the accused’s underlying financial situation, because of the commonality of misstating the accused’s financial position to secure finance from the same bank. In DSJ v The Queen; NS v The Queen [2012] NSWCCA 9; (2012) 259 FLR 262, the NSW Court of Criminal Appeal held that the judge should also have regard to alternative explanations of the coincidence evidence, but should not attempt to weigh the relative merits of the explanations. In that case, the coincidence evidence concerned a series of share transactions by one defendant that involved insider information the other may have obtained from his employment at Moody’s. The Court held that the trial judge erred by completely disregarding alternative explanations, such as these were nevertheless routine trades or that the share trader was an unwitting recipient of the insider’s ‘tips’. In C V, the Victorian Court of Appeal held that the trial judge appropriately considered an alternative explanation of the misstatements in the loan applications—that the accused misunderstood the difference between turnover and net income—but that it was still open for the trial judge to find that the misstatements nevertheless had significant probative value to establish the prosecution case that the errors were deliberate. The third Jacara factor is ‘the extent to which the tendency [or absence of coincidence] increases the likelihood that the fact in issue occurred’.29 In other words, the test of significant probative

28 R v Handy [2002] 2 SCR 908, [82]. 29 Jacara v Perpetual Trustees WA [2000] FCA 1886; [2000] 106 FCR 51, [76].

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value should also consider whether the proof of the alleged pattern really contributes to resolving the particular factual dispute in the proceedings. As the Canadian Supreme Court has observed: Probative value cannot be assessed in the abstract. The utility of the evidence lies precisely in its ability to advance or refute a live issue pending before the trier of fact.30

In Zaknic v Svelte Corp, the Federal Court of Australia held that the court should assess whether there is ‘a real nexus, judged according to experience and common sense, between the evidence and the fact in issue’.31 In ACCC v CC (NSW) Pty Ltd (No 8) [1999] FCA 954; (1999) 92 FCR 375, the ACCC alleged that the defendant had engaged in prohibited agreements in a tender situation. To support its case based on alleged admissions by the defendant and circumstantial evidence, the ACCC adduced evidence that there was an ‘industry practice’ of making such agreements. The Federal Court rejected the evidence on the grounds that it did not significantly advance the question in dispute, which is whether the defendant had made a series of arrangements as part of the tender.

10.2.3 Exceptions to the tendency and coincidence rules For some issues and proceedings, tendency and coincidence reasoning is accepted as having a central, rather than peripheral, role to play. The approach of the uniform evidence legislation is to exempt those matters from the tendency and coincidence rules—and hence the requirements for notice and significant probative value—and leave them to be regulated by other rules, if at all. The main example is evidence of a witness’s credibility. Section 94(1) provides an exception for ‘evidence that relates only to the credibility of a witness’. A person’s tendencies are, arguably, the most important insight we have into his or her credibility, for example: • • • •

evidence of a person’s past conduct (such as previous lies or inaccuracies); evidence of a person’s character (such as his or her attitudes to authority and honesty); evidence of a person’s reputation for honesty or trustworthiness; and evidence of a person’s tendencies (such as expert evidence of a person’s propensity to lie).

Using such evidence to draw an inference that a witness lied or otherwise lacked credibility when he or she testified in court will not have to satisfy the tendency rule. For example, in Blomfield v Nationwide News Pty Ltd [2009] NSWSC 977, Harrison J held that suggesting to a witness who alleged that her employer had fallen in love with her that there was another occasion where she thought another employer had fallen in love with her is credibility evidence, not tendency evidence. The exemption will not apply if the evidence has relevance beyond the mere question of credibility. Thus, although the exporters’ emails were adduced and used by Jacobson J in part to cast doubt on the credibility of the exporters’ testimony, the fact that they had other uses meant that section 97 still applied. The combined effect of section 94(1) and section 101A is that tendency evidence will have to satisfy either section 97 or Part 3.7 on credibility (discussed in Chapter 11: Credibility). It is doubtful that section 94(1) has any application to coincidence evidence. The main example of coincidence evidence relevant to credibility—similarities in the accounts of independent witnesses (such as about a person’s rogue behaviour)—would clearly be relevant not only to the honesty of those witnesses but also to whether or not the person behaved as alleged.

30 R v Handy [2002] 2 SCR 908, [73]. 31 Zaknic v Svelte Corp [1995] FCA 1739; (1995) 61 FCR 171, [13], adopting Boyce v Cafred Pty Ltd (1984) 4 FCR 367 at 370.

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Such evidence would have to satisfy section 98(1) and (if the person is a criminal defendant) section 101(1). The other broad exception is where the ultimate legal dispute is actually about someone’s character or tendencies. Section 94(3) of the uniform legislation provides that Part 3.6 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.

The Australian Law Reform Commission explained that ‘fact in issue’ in this provision is intended to refer to the ultimate factual issue in dispute between the parties (as defined by the pleadings or a charge), rather than subsidiary facts. Thus, in Aristocrat, the Full Court of the Federal Court rejected an argument that Jacobson J’s use of the emails fell within section 94(3). While the tendency that the judge relied upon—that the exporters were willing to deal with and assist counterfeiters— was a fact in issue, it was not an ultimate fact in issue. And, while the next inference that the judge drew—that the exporters knew of any counterfeiting in the machines they exported—was an ultimate fact in issue, it was not a fact that could be inferred without finding the tendency first.32 Section 94(3) is intended to cover proceedings where a person’s behavioural patterns found a cause of action or a defence to such a cause, for example defamation proceedings involving statements about the plaintiff ’s character, or a variety of administrative law matters where statutory tests require a court to weigh a person’s character. Indeed, section 94(2) completely exempts two entire categories of proceedings—bail and sentencing—where the defendant’s character is often crucial to the outcome. Arguably, both section 94(2) and section 94(3) go too far, because they shield the whole evidence from Part 3.6, rather than just the use of that evidence to establish the particular ultimate issue. This will matter when there are multiple ultimate issues, for example: • •

•

in a criminal matter where a defendant faces multiple charges;33 in a defamation matter, where the alleged defamatory remark was that the plaintiff ’s alleged bad character manifested itself on a particular occasion (for example, a statement that a particularly environmental disaster was an example of a person’s ‘disgraceful attitude to the environment’); or in a sentencing matter, where there is a factual dispute about the defendant’s motivations in committing a crime (for example, whether it was racially targeted, a matter that could be the subject of coincidence reasoning).

In each instance, evidence whose subject-matter coincides with one ultimate factual issue can be used, without compliance with any of the rules in Part 3.6, to prove other ultimate factual issues using tendency or coincidence reasoning. This problem—especially the common scenario of multiple charges in criminal trials—will have to be managed, if at all, through the use of the section 136 discretion.34

32 Allam v Aristocrat Technologies Australia Pty Ltd (No 2) [2012] FCAFC 75, [33]–[36]. 33 See Ellis v The Queen [2004] HCATrans 488. 34 See Chapter 16: Discretionary and Mandatory Exclusions.

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10.3 TENDENCY EVIDENCE ABOUT RAPE COMPLAINANTS The most compelling illustration of the danger posed by unregulated tendency and coincidence reasoning is the past practice of eliciting the sexual ‘history’ of complainants in sexual offence trials. All uniform evidence law jurisdictions now regulate this practice, but they do so separately from the uniform evidence scheme (and, hence, in significantly different ways).35 In all instances, the rules are additional to those in the uniform evidence legislation (such as sections 97 and 135). These (so-called) rape shield laws are discussed in this textbook in two ways. This section addresses how rape shield laws regulate tendency evidence about complainants. Chapter 11: Credibility addresses how those laws regulate evidence about complainants’ credibility. The discussion below first sets out the scope of the various laws, then the tests imposed for admissibility. It concludes by examining what reasoning about sexual tendencies is permissible in the courts of the uniform evidence law jurisdictions.

10.3.1 Scope of the rape shield laws All Australian rape shield laws take the form of an exclusionary rule and share a similar procedural scope. The laws applicable in uniform evidence law jurisdictions apply: • • •

• • •

only in criminal proceedings (not in civil claims relating to sexual abuse); only where the charge is one of a defined list of sexual offences; only to evidence about complainants (not to evidence about other witnesses, such as alleged victims of uncharged sexual conduct by the defendant)—the exception is the Commonwealth, which applies to all child witnesses, but not to adults; to both prosecution and defence evidence; to evidence adduced from the complainant (for example. in cross-examination) or otherwise; and to evidence of sexual reputation and to evidence of any past sexual acts.

In Bull v The Queen [2000] HCA 24; (2000) 201 CLR 443, the High Court considered the admissibility of evidence that the complainant had mentioned her sexual fantasies and ‘cobwebs’ to the defendants prior to an alleged rape. It held that the language of Western Australia’s rape shield law did not extend to evidence of the state of a complainant’s sexual experience (such as a lack of experience) and non-hearsay uses of the complainant’s out-of-court statements (for example, to prove what the defendants believed about the complainant). Of the uniform evidence law jurisdictions, the holdings in Bull would now only seem to be applicable in the ACT and the Northern Territory. However, the NSW Court of Criminal Appeal has held that evidence of a complainant’s sexual interest in someone falls outside of the scope of that state’s rape shield law.36

35 Crimes Act 1914 (Cth), Part IAD, Division 2; Evidence (Miscellaneous Provisions) Act 1991 (ACT), Division 4.4; Criminal Procedure Act 1986 (NSW), s 293; Sexual Offences (Evidence and Procedure) Act 1983 (NT), s 4; Evidence Act 2001 (Tas), s 194M; Criminal Procedure Act 2009 (Vic), Part 8, Division 2. 36 R v Burton [2013] NSWCCA 335, [75].

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10.3.2 The exclusionary rules The basic purpose of rape shield laws is to overturn the past practice of routinely adducing and admitting evidence of a complainant’s sexual history. The laws seek to achieve this by requiring parties seeking to adduce evidence within the scope of the legislation to obtain prior leave from the trial judge.37 The question of admissibility must be resolved on a voir dire in the absence of the jury and the judge must give written reasons for granting leave.38 All jurisdictions except the Commonwealth and the Northern Territory completely ban evidence of sexual reputation (others’ opinions about a witness’s innate sexual qualities). However, except in NSW, a more flexible approach is taken to evidence about sexual conduct. Such evidence is subject to test of ‘substantial’ probative value that is similar to the requirement of ‘significant probative value’ in section 97(1);39 however, the test’s application will presumably be guided by specific concerns about rape complainants, rather than general concerns behind section 97(1), and may therefore be more stringent. The Victorian provision requires a court applying this test to have regard to:40 •

• • •

whether the probative value of the evidence outweighs the distress, humiliation and embarrassment that the complainant may experience as a result of the cross-examination or the admission of the evidence, in view of his or her age and the number and nature of the questions that he or she is likely to be asked; the risk that the evidence may arouse discriminatory belief or bias, prejudice, sympathy or hostility in the jury; the need to respect the complainant’s personal dignity and privacy; and the right of the accused person to fully answer and defend the charge;

and additionally requires the court to decide that it is ‘desirable in the interests of justice’ to grant leave.41 In New South Wales, the situation is entirely different. That jurisdiction’s legislation imposes a general ban on all sexual history evidence.42 Such evidence is only admissible if it falls within one of a limited list of statutory ‘gateways’.43 Although the provisions are complex, their effect is that sexual history evidence can only be admitted as relevant to a fact in issue in New South Wales if it is: •

evidence of sexual experience or activities that took place at or about the time of the alleged offence and that form part of a connected set of circumstances with the alleged offence;

37 Crimes Act 1914 (Cth), s 15YC(1)(a); Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 51(1); Sexual Offences (Evidence and Procedure) Act 1983 (NT), s 4(1); Evidence Act 2001 (Tas), s 194M(1)(b); Criminal Procedure Act 2009 (Vic), s 342. 38 Crimes Act 1914 (Cth), s 15YD(1)(b); Criminal Procedure Act 1986 (NSW), s 293(7),(8); Evidence (Miscellaneous Provisions) Act 1991, ss 52, 53(4); Sexual Offences (Evidence and Procedure) Act 1983 (NT), s 4(4); Evidence Act 2001 (Tas), s 194M(1)(b); Criminal Procedure Act 2009 (Vic), s 348. 39 Crimes Act 1914 (Cth), s 15YC(2)(a); Evidence (Miscellaneous Provisions) Act 1991, s 53(1)(a); Sexual Offences (Evidence and Procedure) Act 1983 (NT), s 4(1); Evidence Act 2001 (Tas), s 194M(2)(a); Criminal Procedure Act 2009 (Vic), s 349. 40 Criminal Procedure Act 2009 (Vic), s 349 (a)–(d). 41 Criminal Procedure Act 2009 (Vic), s 349. 42 Criminal Procedure Act 1986 (NSW), s 293(3). 43 Criminal Procedure Act 1986 (NSW), s 293(4).

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•

•

evidence that relates to an existing or recent relationship between the defendant and the complainant, for example evidence that the defendant and complainant had continued a sexual relationship after an alleged rape;44 or evidence designed to show that the presence of semen, pregnancy, disease or injury may not be attributable to the alleged intercourse with the defendant.

Even then, the evidence is only admissible ‘if the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission’. The rationale behind the strict approach in New South Wales is the fear that the courts will fail properly to implement a more flexible rape shield law. In her well-regarded dissenting judgment in R v Seaboyer and Gayme (1991) 83 DLR (4th) 193, L’Heureux-Dubé J argued that all individuals involved in sexual assault trials are ‘particularly prone to the utilization of stereotype in determinations of relevance’. However, the non-discretionary approach has also been excoriated by courts and commentators on the basis that it may exclude evidence that is essential to the defence.45 The New South Wales law contains a separate provision allowing the defence, on application to the court, to cross-examine a complainant about a sexual experience or activity if such an activity (or the lack of it) has been disclosed or implied in the prosecution’s case against the defendant.46 The trial judge must be satisfied that the defendant ‘might be unfairly prejudiced’ by the absence of such a cross-examination. If the matters disclosed by the prosecution are limited to activities of a ‘specified’ nature or period, then the cross-examination must be similarly limited. It is likely the general leave requirement in other jurisdictions will be applied in a similar manner.

10.3.3 Permitted reasoning about sexual behaviour In light of these various rules, what sort of reasoning about sexual behaviour is currently permissible in Australian sexual offence trials? Modern courts now accept that it is absurd to say that ‘a willingness to have sexual intercourse outside marriage with someone is equivalent to a willingness to have sexual intercourse outside marriage with anyone’ (Bray CJ in R v Gun Ex parte Stephenson (1977) 17 SASR 165). In R v McGarvey (1987) 34 A Crim R 119, a rape defendant’s application to adduce evidence that the complainant had consensual sex with 20 men in the weeks preceding the alleged offence was rejected. The New South Wales Court of Criminal Appeal described the evidence as being ‘of hardly any weight, if any at all’ and is ‘the very sort of evidence’ that the rape shield laws were enacted to exclude.47 When rape shield legislation was first enacted, it was suggested that tendency reasoning persists on the supposedly narrower basis that a willingness to ‘consent in special circumstances’ has probative value if it is otherwise unlikely that a person would consent in such circumstances.48 For example, in R v Henning, the complainant testified that she was kidnapped and raped by six men, an account that gained significant support from police interviews with the defendants. However, at the trial, the various defendants who testified said that the complainant voluntarily accompanied them to smoke cannabis and that any intercourse that occurred was consensual. 44 Taylor v The Queen [2009] NSWCCA 180. 45 See New South Wales Law Reform Commission, Report No 87: Reform of Section 409B, 1998, Sydney: NSWLRC. 46 Criminal Procedure Act 1986 (NSW), s 293(6). 47 R v McGarvey (1987) 34 A Crim R 119, 122. 48 King CJ in R v De Angelis (1979) 20 SASR 288.

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One of the defendants sought to adduce extensive evidence of the complainant’s prior engagement in consensual sex, including frequent occasions of consensual group sex with the defendants and others since they were at school together. The New South Wales Court of Criminal Appeal held that this evidence would be admissible as relevant to the question of consent: [The defendant]’s story that, whilst a group of other young men was waiting in a nearby car, in an intoxicated condition and smoking marihuana, he went off with the complainant to have consensual sexual intercourse, might have been regarded by the jury as less likely to be true by reason of the very presence of the other young men. The fact that they were there, and the evident possibility that they might also care to follow [the defendant’s] example, might have been regarded as making it less probable that the complainant would have engaged in consensual sexual activity with [the defendant]. The jury might well have regarded it as relevant to be informed that on many previous occasions, in similar circumstances, the complainant engaged in consensual sexual activity with [the defendant].49

So, it held that the trial judge ought to have granted leave to admit this evidence. It is questionable whether even this narrower approach survives under contemporary legislation. The rape shield laws in the Commonwealth, the Australian Capital Territory, the Northern Territory and Victoria expressly state that the heightened requirement of relevance cannot be sustained on the mere basis of an ‘inference’ as to the complainant’s ‘general disposition’.50 A similar result arguably flows from the uniform evidence law’s requirement in section 97 that tendency evidence have ‘significant probative value’. ACT and NSW courts have each held that evidence that the complainant had sex or expressed interest in sex with one person was not even relevant to, let alone substantially probative about, whether or not that the complainant would consent to sex with another hours later.51 A different trend is for juries to be invited to use such tendency reasoning to support the prosecution’s, rather than the defence’s, case. For example, the prosecution may invite the complainant to state whether or not he or she is a virgin, in order to bolster a claim that consensual sex with the defendant was unlikely.52 Alternatively, the prosecution may call evidence of the complainant’s inclinations against a particular sexual act or invite jurors to ponder the unlikelihood that the complainant would engage in an unusual sexual act.53 The courts have generally been amenable to such suggestions.54 However, in the authors’ view, a reliance on such reasoning (while understandable) cannot be sustained while barring the defendant from pursuing the converse argument. Disowning tendency reasoning altogether would be preferable to either undermining the rape shield statutes or the defendant’s right to a fair trial. The courts (and, in some instances, the legislatures) have been generally more willing to admit sexual history evidence that is relevant for purposes other than to establish the complainant’s tendencies or disprove a coincidence, for example evidence of: •

sexual activity on other occasions to rebut the relevance of forensic evidence suggesting nonconsent: for example, holdings that the complainant could be asked about whether injuries or a pregnancy scare were due to sexual activities with others.55

49 R v Henning (1990) NSW Court of Criminal Appeal, unreported, 11 May 1990, nos 406, 426, 436 and 438 of 1988. 50 Crimes Act 1914 (Cth), s 15YC(3); Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 53(2); Sexual Offences (Evidence and Procedure) Act 1983 (NT), s 4(2)(a); Criminal Procedure Act 2009 (Vic), s 352(a). 51 R v CH & JW [2010] ACTSC 75; R v Burton [2013] NSWCCA 335, [68]. 52 For example, R v Cobham [2005] ACTSC 102. 53 For example, R v Paterson (No 3) [2014] NSWSC 57. 54 E.g., R v Narayanaswamy [2011] ACTSC 41, [13]–[18]. 55 R v Sadler [2008] VSCA 198; (2008) 20 VR 69; R v ERJ [2010] VSCA 61.

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•

• •

sexual activity that provides the background for other relevant defence evidence: for example, evidence of the complainant’s sexual invitation to the defendant, or of others’ opinions of the complainant’s apparent age, that happened to be at times when the complainant was having sex.56 sexual activity shortly after an alleged rape on the basis that ‘to have sexual intercourse an hour or two after forced intercourse is … unlikely or contrary to human experience’;57 and prior sexual activity with the defendant: this is completely exempted from the rules in the Commonwealth and the ACT.58

The ACT Supreme Court has observed that the latter evidence (if it concerns consensual activity) is typically irrelevant if the dispute at the trial is about whether sex occurred at all.59 By contrast, if the issue is whether sex that occurred is consensual, the House of Lords has described the relevance of such evidence as follows: Where there has been a recent close and affectionate relationship between the complainant and the defendant it is probable that the evidence will be relevant, not to advance the bare assertion that because she consented in the past she consented on the occasion in question, but for the reason … that evidence of such a relationship will show the complainant’s specific mindset towards the defendant, namely her affection for him … But where there had only been some isolated acts of intercourse, even if fairly recently, without the background of an affectionate relationship, it is probable that the evidence will not be relevant.60

In R v A, the complainant testified that, several hours after her boyfriend was taken to hospital, his friend raped her while they were walking by the river. The defendant, who alleged that the sex was consensual, was prevented by the English rape shield law from adducing evidence that he had been having an affair with the complainant for the previous three weeks. Without resolving whether or not this evidence was relevant, the House of Lords held that the rape shield law amounted to a denial of the defendant’s right to a fair trial under the European human rights convention.61 In light of those jurisdictions’ statutory requirement to interpret statutes compatibly with human rights, ACT and Victorian courts would be likely to give this decision careful consideration when applying their rape shield laws to such evidence.62

56 R v Fernando [2009] ACTSC 137; (2009) 238 FLR 64; Tasmania v Martin (No 2) [2011] TASSC 36. 57 R v Morgan (1993) 67 A Crim R 526. See also Sexual Offences (Evidence and Procedure) Act 1983 (NT), s 4(3); Evidence Act 2001 (Tas), s 194M(1)(b). 58 Crimes Act 1914 (Cth), s 15YC(1)(b); Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 51(2) and see R v CH and JW [2010] ACTSC 75, [33]–[43]. 59 R v CH and JW [2010] ACTSC 75, [52]. 60 R v A [2001] UKHL 25; [2001] 3 All ER 1, [151]–[152] and see Gregory v The Queen [1983] HCA 24; (1983) 151 CLR 566, 571. 61 Convention for the Protection of Human Rights and Fundamental Freedoms. 62 Human Rights Act 2004 (ACT), s 30; Charter of Human Rights and Responsibilities Act 2006 (Vic), s 32.

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SUMMARY The tendency and coincidence rules The tendency and coincidence rules regulate: •

•

evidence of the ‘character, reputation or conduct of a person, or a tendency that a person has or had’ when used to prove that the person may have acted in conformity with that tendency on the occasion in question; and evidence of ‘2 or more events’ when led to prove ‘that a person did a particular act or had a particular state of mind on the basis that … it is improbable that the events occurred coincidentally’.

Where applicable, the two rules require that, before evidence can be adduced to support tendency or coincidence reasoning: • •

the party adducing the evidence has given reasonable notice of its intention to do so; and the evidence has ‘significant probative value’, measured by reference to: – the capacity of the evidence to support tendency or coincidence reasoning; – the strength of the inference that a tendency exists or that a coincidence is unlikely; and – the relevance of that inference to a genuine fact in issue.

The tendency and coincidence rules do not apply: • •

to circumstantial reasoning that does not require an inference about the existence of a pattern of human behaviour; or to credibility evidence or where the existence of a pattern of behaviour is an ultimate fact in issue in the proceedings.

Rape shield legislation In all Australian jurisdictions, there are specific statutory provisions applying to evidence about complainants in sexual offence trials: • •

•

All the provisions regulate evidence that tends to disclose occasions when a person has engaged in a sexual act and others’ opinions of a person’s inherent tendencies. The provisions typically require that: – sexual history evidence is inadmissible unless a trial judge grants leave for it to be admitted; – sexual history evidence is inadmissible unless it has high probative value; – sexual history evidence is inadmissible where its admission would cause harm to the complainant that outweighs its probative value; and – some categories of sexual history evidence are always inadmissible. The provisions (in combination with the tendency rule, where applicable) largely prohibit reasoning about complainants’ sexual tendencies.

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11

INTRODUCTION This chapter deals with the admissibility of evidence that is relevant to the credibility of a witness, and the maker of a previous representation. The following related areas are covered elsewhere: •

•

the role played by evidence about the ‘credibility’ of real or documentary evidence, in laying a foundation for the admission of such evidence, is discussed in Chapter 3: Documentary and Real Evidence; the use of credibility evidence relating to a criminal defendant is discussed in Chapter 12: Character.

11.1 THE NATURE OF CREDIBILITY EVIDENCE Credibility evidence is evidence that relates to the credibility of a witness. In terms of its relationship to the facts in issue, credibility evidence is an example of ‘ancillary’ evidence. Ancillary evidence has a ‘derived’ relevance to the facts in issue, being relevant to other evidence in the case, rather than necessarily to the facts in issue themselves.1 Another way of describing ancillary evidence is to say that it is evidence relevant to a ‘collateral’ fact. Collateral facts are ‘facts not constituting the matters directly in dispute between the parties’;2 they are ‘not facts in issue or facts relevant to a fact in issue’.3 Examples of collateral facts include: • • • •

facts that affect or relate to the credibility of a witness; facts that establish the authenticity or accuracy of an item of real or documentary evidence; facts that tend to support or eliminate an alternative explanation for an item of circumstantial evidence; and matters such as the circumstantial detail in a witness’s description of a relevant event.

Evidence used to prove such facts is ancillary evidence. Of course, any particular item of ancillary evidence may also be relevant to the facts in issue. For example, a prior statement by a witness may have a bearing on the credibility of that witness, but it may also be relevant for its truth (whether the hearsay rule allows it to be used for that purpose is another question).

1 See D Schum, Evidential Foundations of Probabilistic Reasoning, 1994, New York: John Wiley, 109–14. 2 Goldsmith v Sandilands [2002] HCA 31, [3]; (2002) 190 ALR 370, 372 (Gleeson CJ), quoting Piddington v Bennett and Wood Pty Ltd [1940] HCA 2; (1940) 63 CLR 533, 546 (Latham CJ). 3 Goldsmith v Sandilands [2002] HCA 31, [32]; (2002) 190 ALR 370, 378 (McHugh J).

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The primary focus in this chapter is on credibility evidence; that is, evidence tending to show that a particular person either is, or is not, a credible witness. Credibility evidence is evidence that is relevant to the ‘credibility of a witness’; a phrase defined as follows in the Dictionary section of the uniform evidence legislation: credibility of a witness means the credibility of any part or all of the evidence of the witness, and includes the witness’s ability to observe or remember facts and events about which the witness has given, is giving or is to give evidence.

As the Victorian Court of Appeal noted in Dupas, under this definition: … the credibility of a witness expressly includes the credibility of the evidence of the witness. And the express reference to a person’s ‘ability to observe or remember facts and events’ can only be a reference to reliability. In short, ‘credibility’ imports notions of both truthfulness and reliability.4

Credibility evidence therefore includes all of the following: • • • •

•

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 that 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 their testimony; and evidence relating to the witness’s capacity for accurate observation and recollection.

The broad definition of ‘credibility’ leads to a correspondingly broad application of the credibility rules. The New South Wales Court of Criminal Appeal had sought to avoid this broad application of the credibility rules by drawing a distinction between evidence going to the credibility of the witness, and evidence going to the reliability of their evidence (such as evidence that contradicts the facts attested to by the witness).5 In Dupas, however, the Victorian Court of Appeal held that the uniform evidence legislation had removed any such distinction.

11.2 THE RELEVANCE OF CREDIBILITY EVIDENCE Credibility evidence is relevant, because anything affecting the probability that a witness is telling the truth, obviously affects the probability of the existence of the facts to which he or she is testifying. The relevance of credibility evidence is therefore recognised by section 55(2) of the uniform evidence legislation, which provides that ‘evidence is not taken to be irrelevant only because it relates only to: (a) the credibility of a witness’. Credibility is crucial in the common law trial; in the vast majority of cases, the tribunal of fact will have to decide which of two or more contradictory bodies of evidence to accept. In making this decision, the tribunal of fact will clearly take into account its perceptions of the credibility of each of the competing witnesses. Given the importance of credibility, there is obviously an 4 Dupas v The Queen [2012] VSCA 328; (2012) 218 A Crim R 507, [265]. 5 See Peacock v The Queen [2008] NSWCCA 264; (2008) 190 A Crim R 454, [57]; and RGM v The Queen [2012] NSWCCA 89.

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argument that credibility evidence ought to be freely admitted; if the tribunal of fact must choose between two witnesses, then the more it knows about those two witnesses, the more likely it is to make the correct choice. The free admission of credibility evidence, however, would be time-consuming and would lead to a proliferation of issues with no direct bearing on the facts in issue. As Rolfe B stated in Attorney General v Hitchcock: If we lived for a thousand years instead of about 60 or 70, and every case were of sufficient importance, it might be possible, and perhaps proper … to raise every possible inquiry as to the truth of the statements made. But I do not see how that could be; in fact, mankind finds it to be impossible.6

For this reason, the general approach of the uniform evidence legislation (and the common law) is to place severe restrictions on the use of credibility evidence.

11.3 THE ADMISSIBILITY OF CREDIBILITY EVIDENCE 11.3.1 Overview of the credibility rules Section 102 of the uniform evidence legislation provides that: ‘Credibility evidence about a witness is not admissible.’ This rule has the following exceptions: • •

•

• • •

A criminal defendant is permitted to lead evidence that he or she is of good character, and should therefore be believed on oath.7 During cross-examination of a witness, a party is, subject to some limitations, allowed to ask questions that are only relevant to the witness’s credibility.8 Further limitations apply when the witness is a criminal defendant.9 If, during cross-examination, a witness has denied a fact that is relevant to his or her credibility then, depending on the nature and importance of the fact denied, the party may be permitted to lead evidence to rebut the denial.10 In certain limited circumstances, evidence designed to re-establish the credibility of a witness whose credibility has been impugned is admissible.11 If a hearsay representation has been admitted, then evidence relevant to the credibility of the person who made the representation may be admissible.12 In certain circumstances, credibility evidence may be adduced from a person with specialised knowledge; that is, an expert.13

6 7 8 9 10 11 12

Attorney General v Hitchcock (1847) 1 Exch 91, 105; 154 ER 38, 44. Section 110, discussed in Chapter 12: Character. Section 103. Section 104, also discussed in Chapter 12: Character. Section 106. Section 108. Sections 108A and 108B; more accurately, s 108A contains both an exclusionary rule applying to credibility evidence about the maker of a previous representation, and an exception to that rule. 13 Section 108C.

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11.3.2 Scope of the credibility rules In Section 102, the exclusionary rule only applies if the evidence is ‘credibility evidence’. This phrase is defined in section 101A, which was inserted as part of the 2008 amendments to the legislation, in order to overcome the effect of the High Court’s decision in Adam v The Queen [2001] HCA 57; (2001) 207 CLR 96. The combined effect of sections 101A, 102, and 108A is as follows: •

•

•

•

evidence that is only relevant for a ‘credibility purpose’—that is, in the assessment of the credibility of a witness or person—cannot be used for that purpose, unless it falls within the scope of one of the exceptions to the credibility rule in Part 3.7; evidence that has dual relevance, and that is admissible for the non-credibility purpose, can also be used for the credibility purpose, without having to comply with the provisions of Part 3.7; evidence that has dual relevance, but that is inadmissible for the non-credibility purpose, can only be used for the credibility purpose, if it falls within the scope of one of the exceptions to the credibility rule in Part 3.7; but where the effect of an exclusionary rule is to prohibit the admission of the evidence altogether (as opposed to a particular use of the evidence), the evidence cannot be used for any purpose, including a credibility purpose.

Thus, the effect of sections 101A, 102, and 108A is similar to the effect that sections 60 and 76 have, in relation to the hearsay and opinion rules. That is, the credibility rule does not apply to evidence that has dual relevance, and that is admissible for a non-credibility related purpose. The means by which this result is achieved, however, are far from straightforward. Rather than simply providing that the credibility rule does not apply to evidence admitted for a non-credibility purpose—like sections 60 and 76 in respect of the hearsay and opinion rules14—the same result is achieved by means of a convoluted definition of the phrase ‘credibility evidence’. Section 101A provides that: Credibility evidence, in relation to a witness or other person, is evidence relevant to the credibility of the witness or person that: (a) is relevant only because it affects the assessment of the credibility of the witness or person; or (b) is relevant: (i) because it affects the assessment of the credibility of the witness or person; and (ii) for some other purpose for which it is not admissible, or cannot be used, because of a provision of Parts 3.2 to 3.6.

Section 101A thus recognises two categories of ‘credibility evidence’, both of which are subject to the exclusionary rule in sections 102 and 108A, and which can only therefore be used for a credibility purpose if they fall within the scope of one of the exceptions to the credibility rule in Part 3.7. The first category, ‘credibility evidence’, is evidence that is only relevant because it ‘affects the assessment of the credibility of the witness or person’. The second category is evidence that has dual relevance, being relevant to the assessment of the credibility of a witness, and also relevant (but not admissible) for another purpose. Evidence that has dual relevance, and is admissible for another purpose, is not ‘credibility evidence’ and is not subject to the rules in Part 3.7. For example, in R v Meyboom, the accused was charged with sexually assaulting a woman and stealing her mobile phone. In relation to the assault, his defence was one of identity. The prosecution’s case that the accused was the assailant received strong support from the fact that his

14 And as one of the authors had proposed: Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005) [12.11] and [12.15].

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partner had been found in possession of the complainant’s phone. The accused’s explanation for this was that he had purchased the phone (along with some drugs and a dress for his partner) from an acquaintance on the day of the assault. The accused said that he got the money for these purchases by burgling a particular newsagency earlier that day. The prosecution then adduced evidence that no such burglary had been reported on that day, although burglaries had been committed at the newsagency on three other days that year, including one that bore a remarkable resemblance to the one that the accused claimed to have committed on the day of the assault. The prosecution evidence was clearly relevant to the credibility of the accused’s explanation for how he came to be in possession of the phone; but the court held that it was also relevant to whether the trial judge could find beyond reasonable doubt that the accused stole the phone from the complainant. As it was admissible for this second purpose, the evidence fell outside the definition of credibility evidence in section 101A, and was not therefore subject to the credibility rules in Part 3.7.15 A further example is provided by the prior statement of a prosecution witness, where the prior statement supports the prosecution case, yet at trial the witness gives unfavourable evidence.16 Such a statement is relevant both to the credibility of the witness, and for its truth. Due to its dual relevance, it falls outside the first category of credibility evidence defined in section 101A(a). Whether it falls inside the second category, established by section 101A(b), will depend on whether it is admissible for its truth under an exception to the hearsay rule.17 If the prior statement is not admissible for a hearsay purpose, then it is credibility evidence to which the credibility rule in section 102 applies, and can only be used for a credibility purpose if it falls within the scope of one of the exceptions to the credibility rule in Part 3.7. If, on the other hand, the prior statement is admissible for a hearsay purpose, then the credibility rule does not apply; it can also be used in the assessment of the witness’s credibility, without having to comply with the requirements of any of the exceptions in Part 3.7, and subject only to the trial judge’s discretion to limit the use of the evidence (pursuant to section 136), or to exclude it altogether (pursuant to sections 135 and 137).18 Similarly, evidence of an opinion, an admission, a tendency or a coincidence, which has dual relevance and is admissible for a non-credibility purpose, can also be used for the credibility purpose. Whereas, if the evidence is admissible for the non-credibility purpose, because of the operation of the opinion, the tendency or coincidence rules, then the evidence will fall within the scope of the second category of ‘credibility evidence’ in section 101A(b), and its use for the credibility purpose would be determined by the provisions of Part 3.7. The situation is less clear in cases where the evidence has dual relevance, and is admissible for the non-credibility purpose, but the judge exercises his or her discretion in section 136 to prevent that use. Technically, the evidence is still admissible for the non-credibility purpose, even though it cannot be used for that purpose. If this is right, then the evidence falls outside the definition of credibility evidence in section 101A, and is admissible for the credibility purpose, without having to comply with the requirements of Part 3.7. So, in Meyboom, for example, if the court had exercised its discretion to limit the use of the evidence, and prevent it from being used on the question of whether the accused had stolen the phone, it would still be evidence that was admissible for a noncredibility purpose (even though it could not be used for that purpose). The rather illogical result

15 See R v Meyboom [2012] ACTCA 2; (2012) 256 FLR 450, [140]–[143]. 16 These were the facts in Adam v The Queen [2001] HCA 57; (2001) 207 CLR 96. 17 As the note to s 101A points out, this must be an exception other than s 60, because s 60 only applies to evidence that has already been admitted. The same is true of s 77, where the other purpose for which the evidence is relevant falls within the scope of the opinion rule in s 76. 18 See ISJ v The Queen [2012] VSCA 321, [50]–[51].

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would be that it could then have been used for the credibility purpose without having to comply with the credibility rules. If instead, the evidence is of an admission by one of the parties, which is rendered inadmissible by virtue of one of sections 84, 85 or 86, then the evidence would again fall outside the definition of ‘credibility evidence’; but this would not mean that it could be used for a credibility purpose. This is because sections 84, 85 and 86 operate to render evidence inadmissible for all purposes;19 as do the rules in Part 3.9—Identification Evidence and Part 3.10—Privileges. This can be contrasted with rules that only apply with respect to particular uses of evidence, such as those in sections 59, 76, 91, 97 and 98. In short, the fact that evidence is inadmissible for a non-credibility purpose does not prevent it from being used for a credibility purpose; however, if the evidence is subject to a rule that renders it inadmissible per se then that is obviously the end of the matter. To summarise: •

•

•

•

evidence that is relevant only because it affects the assessment of the credibility of a witness or person is credibility evidence, and is subject to the credibility rules in sections 102 and 108A. It is only admissible for a credibility purpose, if it falls within one of the exceptions to that rule contained in Part 3.7; evidence that is relevant because it affects the assessment of the credibility of a witness or person, and for some other purpose for which it is admissible, is not credibility evidence; and is therefore not subject to the credibility rules in sections 102 and 108A, which means that it can also be used for the credibility purpose, subject only to the trial judge’s exercise of the discretion to limit its use or to exclude it altogether; evidence that is relevant because it affects the assessment of the credibility of a witness or person, and for some other purpose for which it is not admissible, and cannot be used because of a provision in Parts 3.2 to 3.6, is credibility evidence. Thus, it is subject to the credibility rules in sections 102 and 108A, and will only be admissible if it falls within one of the exceptions to that rule contained in Part 3.7; and evidence that is not admissible because of the operation of a provision that renders it inadmissible for all purposes (such as sections 84, 85, 86, and the provisions of Parts 3.9 and 3.10) is not credibility evidence (even if it is relevant to the assessment of the credibility of a witness or person), and is not admissible for a credibility purpose.

11.3.3 The distinction between relevance to credibility and relevance to issue In order to apply sections 101A and 102, it is necessary to identify the purposes for which evidence is relevant, including whether it is relevant to the credibility of a witness and whether it is relevant in any other way. In HG v The Queen, for example, the defendant had been charged with sexual offences against his step-daughter. He wished to lead evidence from a psychologist to the effect that, the complainant might have been assaulted by her natural father. Gaudron J, with whom Gummow J agreed, held that this evidence was only relevant to the complainant’s credibility: A judge, in the case of trial by judge alone, or a jury might well reason in a case in which a young child claims to have been the victim of a sexual assault that he or she would not have sufficient knowledge of sexual matters to give an account of the offences charged unless those offences, in fact, occurred. In the present case, Mr McCombie’s opinion that the complainant may have been sexually assaulted on another

19 See Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005) [12.17].

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occasion may explain her knowledge of such matters. Accordingly, it is capable of detracting from the credibility which might otherwise attach to her evidence. However, it has no other significance.20

Whether or not one agrees with the particular finding in HG, the effect of such a finding is to bring the evidence within the first category of credibility evidence recognised in section 101A, which in turn means that the evidence would be inadmissible pursuant to the credibility rule in section 102, unless it is also within the scope of one of the exceptions to the credibility rule. One way of testing whether the matter is relevant only to the credibility of a witness is to ask whether the party would have been permitted to lead evidence of the matter in its case in chief, regardless of whether or not the particular witness was giving evidence. If the relevance of the evidence is dependent on the contingency that a particular person is a witness, or has given particular evidence, then it is likely that the evidence is only relevant to the credibility of that witness. We can thus consider the following examples, in which each witness has given evidence that he or she saw a person that he or she identifies as being the accused leaving the scene of a robbery: •

•

•

Assume that, at the time of his or her observation, the witness was some 50 m distant from the scene. Evidence that the witness is short-sighted, and was not wearing his or her glasses at the time, would be relevant only to his or her credibility: if this witness was not giving evidence, then the fact that he or she is short-sighted would clearly be irrelevant in the proceedings. Evidence showing that the witness was interstate, on the day of the offence, is also only relevant to his or her credibility: if this witness was not giving evidence, then the fact that the witness was in a different city at the time would be irrelevant. Assume that, the witness has given evidence that the reason he or she was at the location in question, on that day, was that he or she was shopping, and had just purchased a particular item using his or her credit card. Evidence contradicting the witness on this surrounding detail, such as evidence that the shop was closed on that day, or that there was no record of any such purchase either at the shop or on his or her credit card account, would only be relevant to the witness’s credibility.

Of course, on a strict view, the sorts of questions typically asked of a witness at the outset of his or her evidence—such as address and occupation—are only relevant to his or her credibility. In the words of one court, such questions merely serve to: locate the witness in society. Similarly, the qualifications of an expert do not go to an issue, and, if there is no objection to the witness’s expertise, can only be relevant to the reliability of the opinions or other evidence to which the witness testifies. Yet s 102 cannot be construed to render that kind of evidence inadmissible when for centuries it has been admissible.21

11.3.4 Distinguishing between credit and issue The distinction between relevance to credit and relevance to facts in issue is not always easy to draw. This is particularly apparent when questions of credibility are central to the issues to be determined by the tribunal of fact. This difficulty led one member of the High Court, McHugh J, to suggest that the credibility rules should be applied in a flexible and pragmatic manner: 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

20 HG v The Queen [1999] HCA 2, [71]; (1999) 197 CLR 414, 435. 21 R v Chen [2002] NSWCCA 174, [28]; (2002) 130 A Crim R 300, 311.

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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 … Indeed, in some cases, the credibility of a witness may be of such crucial importance that it is decisive of the facts-in-issue, particularly where, as in the present case, the witness is a participant in the very facts-in-issue or the only eyewitness to them. The rationale behind the credit and facts-in-issue distinction does not depend on logic. It ‘is based primarily upon the need to confine the trial process and secondarily upon notions of fairness to the witness’. It is rooted in the need for ‘case management’ rules. The distinction is regarded as necessary to prevent the trial of a case being burdened with the side issues that would arise if parties could investigate matters whose only real probative value was that ‘they tended to show the veracity or falsity of the witness who was giving evidence which was relevant to the issue’. It is for that reason, as Lord Pearce pointed out in Toohey v Metropolitan Police Commissioner [[1965] AC 595] that ‘[m]any controversies which might … obliquely throw some light on the issues must in practice be discarded because there is not an infinity of time, money and mental comprehension available to make use of them’. That being so, the evidentiary rules based on the distinction between issues of credit and facts-inissue should not be regarded as hard and fast rules of law but should instead be seen ‘as a well-established guide to the exercise of judicial regulation of the litigation process’.22

Other members of the High Court have joined McHugh J in acknowledging both the difficulty of drawing the distinction, and the fact that it can be productive of injustice, yet stopping short of endorsing his more flexible approach.23 However, the influence of McHugh J’s views can be seen in the 2008 amendments to the uniform evidence legislation, particularly in relation to section 106, which was redrafted in a manner consistent with the approach advocated by McHugh J.

11.4 CROSS-EXAMINATION AS TO CREDIBILITY It is primarily through cross-examination that evidence designed to impeach the credibility of a witness can be led. This means that the evidence must be adduced from the witness whose credibility is being impeached. The evidence will often be led from the witness by means of leading questions. These questions will put to the witness an allegation that, if true, would tend to show that the witness is not a credible witness. Sometimes, the witness will deny the allegation; whether the cross-examiner can then lead evidence to prove the truth of the allegation is discussed at [11.5], under the heading ‘Rebutting denials by other evidence’. For the moment, however, we are concerned only with the admissibility of the question itself. As a starting point, a question that is asked on the basis that it is relevant to the credibility of the witness, will only be permitted if it is relevant for this purpose and, it will only be relevant, if the truth of the allegation would indeed be likely to lower the standing of the witness in the eyes of the tribunal of fact. As Lawton J commented in R v Sweet-Escott: Since the purpose of cross-examination as to credit is to show that the witness ought not to be believed on oath, the matters about which he is questioned must relate to his likely standing after cross-examination with the tribunal which is trying him or listening to his evidence.24 22 Palmer v The Queen [1998] HCA 2, [51]–[53]; (1998) 193 CLR 1. See also Goldsmith v Sandilands [2002] HCA 31, [37]–[41]; (2002) 190 ALR 370 (McHugh J); and Nicholls v The Queen; Coates v The Queen [2005] HCA 1, [43]; (2005) 219 CLR 196 (McHugh J). 23 See Goldsmith v Sandilands [2002] HCA 31, [3] (Gleeson CJ), [83] (Hayne J), [96]–[104] (Callinan J); (2002) 190 ALR 370; and Nicholls v The Queen; Coates v The Queen [2005] HCA 1, [201] (Kirby J), [168] (Gummow and Callinan JJ), [285] (Hayne and Heydon JJ); (2005) 219 CLR 196. 24 R v Sweet-Escott (1971) 55 Cr App R 316, 320.

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Under the uniform evidence legislation, the cross-examination would have to be likely to affect the standing of the witness in a substantial way. This is because section 103 mandates a more restrictive approach to cross-examination about credibility than applied at common law, providing that: The credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence could substantially affect the assessment of the credibility of a witness.

This higher threshold of admissibility was justified by the Australian Law Reform Commission on the following basis: A witness should no longer be open to cross-examination on any negative aspect of character or misconduct on the basis that it is relevant to credibility. The research of psychologists suggests that emphasis should be placed on evidence of conduct which is similar to testifying untruthfully (ie involves false statements) and which took place in circumstances similar to those of testifying (ie the witness was under a substantial obligation to tell the truth at the time).25

As Hunt CJ at CL has observed: Evidence adduced in cross-examination must therefore have substantial probative value in the sense that it could rationally affect the assessment of the credit of the witness. Such an interpretation accords with the intention of the Law Reform Commission. The addition of the word ‘substantial’ nevertheless imposes a limitation upon the common law, when almost anything was allowed upon the issue of credit unless it clearly had no material weight whatsoever upon that issue. That limitation is an important one. Counsel must, however, be given some freedom in cross-examination—whether it relates to a fact in issue or to credit. They are not obliged to come directly to the point; they are entitled to start a little distance from the point and to work up to it. Some counsel are more succinct than others. Some will put the point quickly and clearly. Others will worry the point, like a dog with a bone, and will set the teeth of everyone (including the jury) on edge. Trial judges are expected to have the patience (but, hopefully, not the poverty) of Job.26

Without limiting the matters to which the court may have regard in deciding whether the evidence has ‘substantial probative value’, section 103(2) 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.

In light of section 106, which lists a number of matters that may be proved without leave if denied by the witness, it is suggested that cross-examination might be permitted under section 103 on the following matters: • • • • •

capacity and opportunity for accurate observation and recollection; bias or motive for being untruthful; convictions, but only those that are both reasonably recent, and involve an element of dishonesty; the making of prior inconsistent statements about the events in question, and inconsistencies and contradictions internal to the evidence; and occasions where the witness has, while under an obligation to tell the truth, failed to do so.

25 Australian Law Reform Commission, Evidence (Interim), Report No 26 (2005) Volume 1, [819]. 26 R v RPS NSW Court of Criminal Appeal, unreported, 13 August 1997, no 60583 of 1996, 29–30.

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In particular, not every failing of character or honesty will pass the test in section 103. In the common law case of Bickel v John Fairfax, Hunt J noted that: The purpose of cross-examination as to credit is to show that a witness ought not to be believed on his oath … Convictions, even for offences which do not themselves involve dishonesty, are generally admissible for that purpose … apparently upon the basis that a conviction for any offence against the law may have some effect upon the credit of the offender … But, convictions apart, the conduct or character of a witness cannot … be used to attack his credit unless that conduct or character is of such a nature as to tend logically and rationally to weaken confidence in his veracity or in his trustworthiness as a witness of truth.27

For this reason, Hunt J refused to allow questions about a witness’s allegedly extreme political beliefs, commenting that ‘this is not cross-examination for the purpose of showing that by reason of his lack of veracity a witness should not be believed on oath; this is cross-examination for the purpose of prejudicing the tribunal of fact against that witness as a person’.28 A fortiori, such crossexamination would not be permitted under the uniform evidence legislation. The most obvious kind of evidence adduced in cross-examination is the answer of the witness being cross-examined. However, section 103 has also been held to permit the tendering of a document for use in impeaching a witness in cross-examination. In McMahon v John Fairfax Publications Pty Ltd (No 5), the plaintiff was suing the defendant for defamation arising out of the publication of two articles in the Australian Financial Review. Counsel for the defendant crossexamined the plaintiff about a memorandum that he had provided to his trustee in bankruptcy, in which the plaintiff claimed that he had transferred his BMW to his wife a year before he went bankrupt, in order to satisfy his debt to her for household utilities, the use of the garage, and board for his son and his son’s dog. Counsel for the defendant suggested that the explanation was contrived, and relied on it to impeach the plaintiff ’s credibility. McCallum J held that once the plaintiff had acknowledged the memorandum as his, there was no reason why the memorandum could not be admitted into evidence under section 103.29 There are no notice provisions in relation to credibility evidence (such as evidence of a witness’ prior convictions), meaning that it may be possible to maintain some element of surprise when using such evidence. However, the prosecution in criminal proceedings will usually be under a duty to disclose evidence relevant to a witness’s lack of credibility, including evidence relevant to the credibility of any known defence witnesses. Fairness also suggests that a prosecutor, who wishes to cross-examine a defence witness in relation to their credibility, should first check that the judge (possibly in the absence of the witness, after the completion of their evidence in chief) agrees that the evidence would substantially affect the witness’s credibility, rather than simply launching into the cross-examination unannounced.30 On occasion, a witness called by a party may turn out to be ‘unfavourable’; when this happens, the party may be allowed to cross-examine the witness.31 Under the uniform evidence legislation, such cross-examination may—with the leave of the court—include cross-examination on matters relevant only to credibility.32

27 28 29 30 31 32

Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474, 494. Ibid. McMahon v John Fairfax Publications Pty Ltd (No 5) [2012] NSWSC 218, [37]. Montgomery v The Queen [2013] NSWCCA 73, [6] and [138]. See Chapter 2: Witnesses, [2.3.3.3]. Section 38(3).

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11.5 REBUTTING DENIALS BY OTHER EVIDENCE The previous section dealt with the admissibility of questions that put allegations to the witness that, if true, show that the witness is not a credible witness. This section is concerned with what happens when a witness denies the allegation, and in particular with the question of whether the cross-examiner can then lead evidence to prove the truth of the allegation. The general rule is that the cross-examiner cannot lead evidence to prove the truth of the allegation, although there are several exceptions to this general rule. This rule is based on pragmatism rather than logic, as McHugh J acknowledged in Goldsmith v Sandilands: logically there is no distinction, as far as relevance is concerned, between the credibility of a witness and the facts to which the witness deposes. The reliability of oral testimony cannot be separated from the credibility of its deponent. But the common law has generally refused to act on the basis that there is no distinction between the credibility of a witness and the facts to which the witness testifies. Because the common law regards answers to questions on credit or credibility as going to collateral issues, in most cases the opposing party cannot tender evidence to contradict those answers.33

11.5.1 The general rule The general rule is that the cross-examiner may not prove the truth of an allegation, which is denied by the witness, where the allegation is only relevant to the witness’s credibility. If the matter is relevant beyond the credibility of the witness, then the credibility rules will not prevent the party from proving it. McHugh J has described the effect of this ‘finality’ rule in the following terms: ‘The rule stipulates that answers given by a party or witness in cross-examination regarding collateral facts such as credit must be regarded as final.’34 At common law, this is also known as the ‘collateral issues’ rule. Under the uniform evidence legislation, the general rule is a consequence of the main credibility rule in section 102. The effect of the rule is that the cross-examiner is ‘bound’ by the witness’s answers on matters relevant only to credibility. This does not, of course, mean that the tribunal of fact is bound to believe the witness’s answers; it simply means that the answers are final, and that the cross-examiner cannot disprove them by leading evidence from other witnesses. The rule is based on a desire to avoid the confusing and time-consuming proliferation of issues. As Alderson B commented in Attorney-General v Hitchcock: The reason why a party is obliged to take the answer of a witness is, that if he were permitted to go into it, it is only justice to allow the witness to call other evidence in support of the testimony he has given, and as these witnesses might be cross-examined as to their conduct, such a course would be productive of endless collateral issues.35

The main difficulty in applying the rule is determining whether the matter to which the questions relate is indeed a ‘collateral’ issue. One way of testing whether the matter is relevant only to the credibility of the witness is to ask whether it is sufficiently relevant to the facts in issue that the

33 Goldsmith v Sandilands [2002] HCA 31, [32]—see also [3] (Gleeson CJ); (2002) 190 ALR 370. 34 Palmer v The Queen [1998] HCA 2, [48]; (1998) 193 CLR 1, 21. 35 Attorney-General v Hitchcock (1847) 1 Exch 91, 103–04; 154 ER 38, 44.

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party would have been permitted to lead evidence of the matter in its case in chief. This was the test suggested by Pollock CB in Attorney-General v Hitchcock: [T]he test, whether a matter is collateral or not, is this: if the answer of a witness is a matter which you would be allowed on your own part to prove in evidence—if it have such a connection with the issue, that you would be allowed to give it in evidence—then it is a matter on which you may contradict him.36

In Goldsmith v Sandilands, for example, the appellant was a police officer, suing for personal injuries that he said were received on 26 June 1993, when he was a passenger in a police vehicle being driven by the first respondent. It was part of the case for the respondents, that the appellant’s injuries had not been suffered on 26 June 1993, but during the course of an indoor cricket match on 22 June 1993. The first respondent gave evidence that he had picked up the appellant from the cricket arena on 22 June, and the appellant told him he had ‘stuffed’ his back. The appellant denied making this admission. However, he did admit that he was an indoor cricket player, that he played indoor cricket at an arena in Belmont, and that he might have played there on 22 June 1993. During the course of the trial, there was extensive examination and cross-examination about the precise location of the indoor cricket arena, and eventually counsel for the appellant applied for leave to re-open his case to lead evidence to prove the actual location. Leave was refused, on the grounds that the location was purely a collateral matter. As Gleeson CJ observed: The name and description of the street in which the indoor cricket arena was located was a collateral fact. It was a circumstantial detail relating to the evidence of the alleged admission. And, having regard to what the appellant had conceded in his evidence, it was of negligible significance. It is possible that, if there had been a dispute about whether the appellant had ever played indoor cricket, then the details about the location of the arena, if seriously in contest, might have had some real bearing on the credit of the first respondent. Even in that circumstance, it would have been collateral.37

The test can nevertheless be difficult to apply, as was acknowledged by the High Court in Goldsmith v Sandilands, a fact that McHugh J has cited in support of the need for a more flexible approach: The need for flexibility in applying the finality rule is supported by the difficulty that courts often find in determining whether the evidence concerns a collateral matter or a fact in issue or a fact relevant to a fact in issue.38

The 2008 amendments to section 106 of the uniform evidence legislation allow for such flexibility.39

11.5.2 Exceptions to the rule Under the uniform evidence legislation, the exceptions to the general rule are contained in section 106, which is headed ‘Exception: rebutting denials by other evidence’, and which is in two parts. Sub-section (1), which is new, creates a generalised exception requiring the leave of the court. It is stated in the following terms: The credibility rule does not apply to evidence that is relevant to a witness’s credibility and that is adduced otherwise than from the witness if:

36 Attorney-General v Hitchcock (1847) 1 Exch 91, 99; 154 ER 38, 42. 37 Goldsmith v Sandlilands [2002] HCA 31, [10]; (2002) 190 ALR 370. 38 Goldsmith v Sandlilands [2002] HCA 31, [40]; (2002) 190 ALR 370, 380; see also [82], 393 (Hayne J); and Nicholls v The Queen; Coates v The Queen [2005] HCA 1, [55]–[56]; (2005) 219 CLR 196, 222. 39 See Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005) [12.69] and [12.74].

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(a) in cross-examination of the witness: (i) the substance of the evidence was put to the witness; and (ii) the witness denied, or did not admit or agree to, the substance of the evidence; and (b) the court gives leave to adduce the evidence.

Sub-section (2) then sets out a series of specific exceptions to the rule, where leave of the court is not required: Leave under paragraph (1)(b) is not required if the evidence tends to prove that the witness: (a) (b) (c) (d) (e)

is biased or has a motive for being untruthful; or has been convicted of an offence, including an offence against the law of a foreign country; or has made a prior inconsistent statement;40 or is, or was, unable to be aware of matters to which his or her evidence relates; or 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.

11.5.3 Triggering the operation of the exceptions Two procedural pre-conditions must be met before a party will be permitted to rebut a denial by other evidence. These are set out in section 106(a), and are as follows: • •

in cross-examination, the substance of the evidence must have been put to the witness; and the witness must have denied, or not admitted or agreed to, the substance of the evidence.

Prior to 2008, section 106 required that the witness must have denied the evidence; that requirement has been loosened. It is now sufficient if the witness does not admit or agree to it. So, for example, a statement by a witness that they did not recall the matter would meet the second pre-condition.41 Courts have sometimes taken a very strict approach to the first pre-condition; that is, the requirement that the substance of the evidence be put to the witness.42 For example, in Australian Automotive Repairers’ Association (Political Action Committee) Inc (in liq) v Insurance (Aust) Ltd [2006] FCAFC 33, the appellant had sought to lead evidence in the form of affidavits sworn by people who had been present in court, when two of the respondent’s witnesses had been giving evidence. One of those witnesses, Mr Pemberton, had first been cross-examined on 5 February 2004. It was alleged by the appellant that Mr Pemberton had been coached during this crossexamination, and on 25 March 2004, Mr Pemberton was recalled so that he could be further crossexamined about this allegation. In particular, he was cross-examined about an answer of ‘No’ that he had given on 5 February 2004. The cross-examination proceeded as follows: Q: I suggest to you that that solicitor in the court room on that day audibly said the word ‘No’ whilst looking at you after that question had been asked, what do you say about that? A: Absolutely not.

40 Note, however, that the manner in which a prior inconsistent statement must be proved is governed by s 43, which is discussed in Chapter 2: Witnesses. 41 See Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005) [12.79]. 42 The High Court has endorsed a similarly strict approach to cases at common law, suggesting that allegations of bias or corruption should be subject to requirements analogous to those that apply to prior inconsistent statements: see Nicholls v The Queen; Coates v The Queen [2005] HCA 1, [189] (Gummow and Callinan JJ), [207] (Kirby J); [282]–[283] (Hayne and Heydon JJ); (2005) 219 CLR 196.

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Q: A: Q: A: Q:

I suggest to you that that solicitor then whilst looking at you mouthed the word ‘No’ for a second time? No. And that you responded to the question with the word ‘No’, what do you say about that? Is that two questions or one? I’m suggesting that you responded to my question with the word ‘No’ after a solicitor instructed by your employers first said and then mouthed the word ‘No’? A: No.

The trial judge had refused to allow the evidence, on the basis that the witness had not denied the substance of the evidence set out in the affidavits. The Full Court upheld this decision, observing that: it was not suggested to Mr Pemberton that his answer ‘No’ to the question asked of him on 5 February 2004 had been given because of some prompting. All that was suggested was that sequentially Mr Pemberton’s response ‘No’ came after a solicitor had said and mouthed the word ‘No’.43

The decision suggests that counsel wishing to rely on the exceptions in section 106 will need to ensure that any allegation they wish to prove by other evidence has been very clearly put to the witness.

11.5.4 Applying the exceptions The list of specific exceptions for which leave of the court is not required is similar, but not identical, to the exceptions that existed at common law. For this reason, the common law will continue to provide some assistance to the court in applying the statutory exceptions set out in section 106.

11.5.4.1 Bias or motive for being untruthful This is based on a common law exception to the collateral issues’ rule. In Nicholls v The Queen; Coates v The Queen, McHugh J discussed that exception, and referred to Wigmore on Evidence as justification for recognising three kinds of motives to be untruthful, namely bias, interest and corruption: Evidence rebutting a witness’s evidence may be adduced where the witness is affected by one of three ‘kinds of emotion constituting untrustworthy partiality’, namely, bias, interest or corruption. Wigmore refers to emotional partiality in three senses. The first is bias in the sense of ‘all varieties of hostility or prejudice against the opponent personally or of favor to the proponent personally’. The second is interest in the sense of ‘the specific inclination which is apt to be produced by the relation between the witness and the cause at issue in the litigation’. The third is corruption in the sense of ‘the conscious false intent which is inferrible [sic] from giving or taking a bribe or from expressions of a general unscrupulousness for the case in hand’. Wigmore acknowledges that the ‘theoretical place’ of the corruption exception ‘is not easy to determine. It is related in one aspect to interest, in another to bias, in still another to character (i.e., involving a lack of moral integrity)’. Nevertheless, he observes that the essential discrediting element in relation to evidence showing corruption is ‘a willingness to obstruct the discovery of the truth by manufacturing or suppressing testimony’.44

43 Australian Automotive Repairers’ Association (Political Action Committee) Inc (in liq) v Insurance (Aust) Ltd [2006] FCAFC 33, [53] (emphasis in original); (2006) 14 ANZ Ins Cas 61-706. 44 Nicholls v The Queen; Coates v The Queen [2005] HCA 1, [62]; (2005) 219 CLR 196, 224 (footnotes omitted) referring to Wigmore on Evidence (Chadbourn rev, 1970), Volume 3A, 782 [945]; the passage was also relied on by Hayne and Heydon JJ, [262], 289.

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The width of the common law exception was confirmed by Hayne and Heydon JJ: It extends to all ‘matters which affect the motives, temper, and character of the witness … with reference to his feelings towards one party or the other’. Thus, bias may be found in a wife’s willingness falsely to accuse her husband of incest unless he gave her property. Bias was found in a child complainant’s motive to level a false charge against an accused, who was concerned about the influence of the complainant on his daughter. Bias may be found in a reluctance to give evidence against an accused due to a fear of reprisals: ‘a statement to the effect that a person if required to give evidence will give false evidence out of a desire not to offend certain of the parties is a statement indicating partiality in relation to the parties or the cause, whether that partiality stems from friendship or fear’. Bias was inferred from the attempt by a person claiming to be a victim of an abduction to procure a witness to give false evidence, because the brother of the supposed victim wanted to ensure that the accused was falsely convicted. Bias may also be established where a witness has been coached by a person who is hostile to the party against whom the witness’s evidence has been tendered. Moreover, the exception is not limited to the relation between a challenged witness and persons who are, strictly speaking, parties. It can extend to cases where one witness offers a bribe to other witnesses … Further relevant examples of the scope of the bias exception include Attorney-General v Hitchcock, in which the court considered that if the bribe allegedly offered by officers of the Crown in that case had been accepted, the exception would have applied. The exception may operate where a witness is willing to withdraw allegations against persons being prosecuted if disciplinary proceedings against him are dropped. A threat to make a false complaint against a person one dislikes is admissible. Evidence of a witness’s having solicited a bribe is admissible. An offer by a witness for the prosecution to give favourable testimony for the defendant if the defendant’s friends arrange for the dropping of a charge is admissible. Where the defendant is sued for slanderously saying that the plaintiff had knowingly received stolen cattle from a witness for the defendant, who was convicted of stealing the cattle, an offer by that witness to swear that the plaintiff ‘was in with him in stealing the cattle’ in order to obtain a pardon is admissible. These last three instances, in particular, are very close to the present circumstances. Here, the appellants wanted to call from Ross evidence of matters which could affect the motives, temper and character of Davis with respect to his feelings towards one party—the Crown. It led to an inference that Davis was eager to do the will of the Crown (as expressed to him by the police) even if it meant committing perjury, to the detriment of the appellants. Technically, then, Davis was not influenced by what Wigmore called ‘bias’ (in the sense of hostility or prejudice against one party personally or of favour to the other personally). Nor was it ‘interest’ (the specific inclination apt to be produced by the relation between the witness and the cause at issue in the litigation). Rather, it was what Wigmore described as ‘corruption’ (the conscious false intent which is to be inferred from giving or taking a bribe or from expressions of a general unscrupulousness in relation to the case). According to Ross’s account of what Davis said, the police were not offering a bribe in the form of money, but something even more valuable—a measure of liberty. That offer could have been seen by the jury as a means of stimulating in Davis a willingness to obstruct the discovery of the truth by manufacturing false testimony. It was therefore sufficient to bring Ross’s evidence within the corruption exception to the collateral evidence rule.45

Although there appeared to be some disagreement between the members of the High Court as to whether ‘corruption’ fell within the scope of the ‘bias’ exception, or was an exception in its own right, the Court was unanimous in their recognition that ‘rebuttal evidence of corruption on the part of a witness should generally be admissible to show that the witness has a motive for

45 Nicholls v The Queen; Coates v The Queen [2005] HCA 1, [266]–[270] (footnotes omitted); (2005) 219 CLR 196.

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being untruthful’.46 Under the uniform evidence legislation, this result could be achieved either by treating corruption as falling within the terms of section 106(1)(a), or by the court granting leave to adduce the evidence pursuant to section 106(1)(b).

11.5.4.2 Prior convictions Paragraph 106(2)(b) applies to evidence that tends to prove that a witness ‘has been convicted of an offence, including an offence against the law of a foreign country’. This is based on a common law exception to the collateral issues’ rule. Like the other exceptions in section 106(2), this exception only applies when the cross-examiner has been permitted to cross-examine the witness about the matter pursuant to section 103, and the witness has denied it. In accordance with section 103, cross-examination about prior convictions is only permitted if those convictions would have ‘substantial probative value’. Sections 178–80 contain provisions designed to facilitate the proof of convictions.

11.5.4.3 Prior inconsistent statements Paragraph 106(2)(c) applies to evidence that tends to prove that a witness ‘has made a prior inconsistent statement’.47 This is also based on a common law exception to the collateral issues’ rule. The manner in which a prior inconsistent statement must be proved is governed by section 43, which was discussed in Chapter 2: Witnesses. Once admitted, in exception to the credibility rule, the prior inconsistent statement can also be used for its truth due to the operation of section 60.

11.5.4.4 Capacity to be aware of matters to which the evidence relates Paragraph 106(2)(d) applies to evidence that tends to prove that a witness ‘is, or was, unable to be aware of matters to which his or her evidence relates’. For example: If a witness purported to give evidence of something which he believed that he had seen at a distance of 50 yards, it … [is] possible to call the evidence of an oculist to the effect that the witness could not possibly see anything at a greater distance than 20 yards, or the evidence of a surgeon who had removed a cataract from which the witness was suffering at the material time and which would have prevented him from seeing what he thought he saw.48

At common law, there was some controversy as to whether the cross-examiner would be permitted to prove a lack of opportunity for observation. The cross-examiner might, for example, wish to prove that a witness who claimed to have seen the events in question was actually somewhere else at the time. The High Court’s decision in Piddington v Bennett and Wood Pty Ltd49 suggests that this would not be permitted, although the correctness of this decision was openly doubted in Goldsmith v Sandilands. In any event, the exception in paragraph (d) appears to have been drafted to enable proof of both lack of capacity and lack of opportunity for observation. However, it seems that the exception does not permit the cross-examiner to lead evidence where the witness’s inability to be aware of the

46 Nicholls v The Queen; Coates v The Queen [2005] HCA 1, [73] (McHugh J); see also [186]–[187] (Gummow and Callinan JJ); and [205] (Kirby J); (2005) 219 CLR 196. 47 The phrase ‘prior inconsistent statement’ is defined in the Dictionary as ‘a previous representation that is inconsistent with the evidence given by the witness’. 48 Toohey v Commissioner of Metropolitan Police [1965] AC 595, 608. 49 [1940] HCA 2; (1940) 63 CLR 533.

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matters, to which his or her evidence relates, arises from defects in their capacity for recollection; that is, their memory.50 Support for this view is found in the fact that paragraph (d) is limited to the ability ‘to be aware’ of matters, whereas sections 104(3)(b) refers to the ability both ‘to be aware’, and to ‘recall’ matters. Nevertheless, the exception in paragraph (d) is not limited to matters, such as evidence from an ‘oculist’ concerning the short-sightedness of a witness, but also covers an incapacity caused by some ‘disease or defect or abnormality of mind that affects the reliability of [his or her] evidence’;51 and other relevant ‘psychological, psychiatric or neurological considerations’, such as evidence ‘in the form of a psychiatric report to show that a witness was histrionic and dependant [sic], and prone to lying, on the basis that it tended to prove that the witness would neither know the truth nor want to know the truth’.52

11.5.4.5 Making of previous false representations Paragraph 106(2)(e) applies to evidence that tends to prove that a witness ‘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’. This is not based on a common law exception to the collateral issues’ rule. The exception in paragraph (e) is narrower than the factor to which the court may have regard pursuant to section 103(2)(b), because paragraph (e) is only triggered when the obligation to tell the truth was one that was ‘imposed by or under an Australian law or a law of a foreign country’. On its face, paragraph (e) could enable the admission of evidence to prove that any answer given by a witness in cross-examination was a lie. However, the effect of such an interpretation would be to render the remaining exceptions in section 106 redundant, and this is likely to be rejected as obviously inconsistent with the intention of the legislature.53 For that reason, the exception in paragraph (e) would not apply to false representations made by a witness during the course of his or her evidence.

11.5.4.6 The general exception where the leave of the court is required If the evidence does not come within any of the specific exceptions set out in section 106(2), then the cross-examiner can still seek the court’s leave to rebut the witness’s denial in reliance on section 106(1). The Australian Law Reform Commission expressed the hope that the introduction of this new flexible exception, might reduce the amount of time consumed by arguments about whether evidence was relevant only to credit, or also to issue, and whether it fell within the scope of one or other of the specific exceptions.54 Like all situations where the court’s leave is sought, the court is required to take into account the matters set out in section 192 (and discussed in Chapter 20: Procedural Provisions, [20.4], under the heading ‘The giving of leave, permission and directions’), which provides that: (1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit.

50 See R v PLV [2001] NSWCCA 282, [75]–[91]; (2001) 51 NSWLR 736, 742–4 (Spigelman CJ). 51 Toohey v Commissioner of Metropolitan Police [1965] AC 595, 609. 52 R v Rivkin [2004] NSWCCA 7 at [335]–[337]; (2004) 59 NSWLR 284, referring to R v Souleyman NSWSC, unreported, 5 September 1996, Levine J. 53 See Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005) [12.80]. 54 Ibid., [12.76].

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(2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account: (a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing; and (b) the extent to which to do so would be unfair to a party or to a witness; and (c) the importance of the evidence in relation to which the leave, permission or direction is sought; and (d) the nature of the proceeding; and (e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.

11.5.5 Rebutting the rebuttal Where the cross-examiner has been permitted to lead evidence to rebut a witness’s denial of a matter relevant to credibility, the party that called the witness may wish to respond to the evidence led in rebuttal. As the Australian Law Reform Commission explained, section 106 also allows this: Whenever evidence is led by one party from a witness pursuant to s 106, the opposing party will have an opportunity to cross-examine that witness. Where the cross-examiner has evidence capable of rebutting the evidence of that witness, the substance of that evidence can be put to that witness in cross-examination. Evidence which could contradict that witness’ evidence will be relevant to his or her credibility and, subject to satisfying the requirements of an amended s 106, will be admissible.55

The Australian Law Reform Commission gave the following example to illustrate how this could occur: • • • • • • • • •

The defendant in a criminal trial calls Dave as an alibi witness. Dave is cross-examined by the prosecutor to the effect that he has a motive to lie, because he was paid by the defendant’s wife, Gloria, to provide an alibi for the defendant. Dave denies this. The prosecutor puts to Dave that he received a large sum of money from Gloria on a particular day. Dave denies this, and says Pamela gave him money on that day, in payment for a car that he sold to her. Pursuant to section 106, the prosecution then calls evidence from Brian, who claims to have seen Gloria give Dave money on that day. Brian is cross-examined by the defence, and it is put to him that he is mistaken about the identity of the person giving Dave money. Brian denies that he is mistaken. Under section 106 the defendant could, with leave, call Pamela to give evidence that she gave Dave money in payment for a car on the day in question, to rebut the denial by Brian that he is mistaken as to whom he saw handing over money.56

55 Ibid., [12.88] (footnotes omitted). 56 Ibid., [12.89] (formatting altered to dot points by the authors).

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11.6 REHABILITATING CREDIBILITY If a witness’s credibility has been impeached, then the party calling the witness may be permitted to lead evidence to restore or rehabilitate the witness’s credibility, even though such evidence would not have been permitted to be led in chief.

11.6.1 Re-examination Section 108(1) of the uniform evidence legislation provides that ‘the credibility rule does not apply to evidence adduced in re-examination of a witness’. This is not as wide as it might at first appear. Section 39 limits re-examination to ‘matters arising out of evidence given by the witness in crossexamination’, or in relation to which the court gives leave. This means that section 108(1) will usually only allow credibility evidence to be led about matters that were dealt with in cross-examination.

11.6.2 Prior consistent statements Section 108(3) creates further exceptions to the credibility rule for prior consistent statements.57 Of course, if the prior consistent statement has already been admitted for its truth—pursuant to one of the exceptions to the hearsay rule, which apply to previous representations made by a witness58— then it does not come within the scope of the credibility rule in section 102, and can also be used for its credibility purpose. Section 108(3) is stated in the following terms: The credibility rule does not apply to evidence of a prior consistent statement of a witness if: (a) evidence of a prior inconsistent statement of the witness has been admitted; or (b) it is or will be suggested (either expressly or by implication) that evidence given by the witness has been fabricated or reconstructed (whether deliberately or otherwise) or is the result of a suggestion; and the court gives leave to adduce the evidence of the prior consistent statement.

11.6.2.1 When a prior inconsistent statement has been adduced Section 108(3) effectively creates two exceptions. The first exception applies when a prior inconsistent statement has been used to impeach credibility, and allows the use of a prior consistent statement to restore it. As the Australian Law Reform Commission commented, the purpose of admitting the prior consistent statement in such circumstances is ‘not to rebut the fact that a prior inconsistent statement was made, but to weigh against the effect of the inconsistent statement in the assessment of the witness’ credibility’.59 Evidence of the prior consistent statement could be adduced from the witness, or from another witness who perceived the making of the prior consistent statement.

11.6.2.2 Allegations of fabrication and reconstruction The second exception in section 108(3) is based on a common law rule, which permits a party to lead evidence of a prior consistent statement, in order to rebut an allegation of ‘recent invention’.60 The uniform evidence legislation exception applies when it has been (or will be) suggested to 57 The phrase ‘prior consistent statement’ is defined in the Dictionary as ‘a previous representation that is consistent with the evidence given by the witness’. 58 For example, ss 64(3) and 66(2). 59 Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005) [12.91]. 60 See Nominal Defendant v Clements [1960] HCA 39; (1960) 104 CLR 476.

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the witness that their evidence is a fabrication, reconstruction, or is the result of suggestion. In R v Whitmore, Greg James J argued that ‘the denial of the events alleged without more does not necessarily suggest, expressly or implicitly, positively, reconstruction, fabrication or suggestion’.61 That said, 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’.62 In Pavitt, for example, the Crown’s case at trial was that between 1983 and 1987, the accused had sexually assaulted the complainant, a male, when the complainant was aged between about twelve and sixteen years’ of age. The accused was about six years’ older than the complainant. The complainant first complained to police in 2002. The first trial resulted in a hung jury. At the outset of the second trial, the prosecutor described the defence case to the trial judge in the following terms: The defence case is that after the complainant suffered a mental illness and the complaint to the police was made, some years after, and it’s a contention that will run through this trial that what the complainant has is a false memory caused by his period of time when he was mentally ill. … the mental illness is going to be a very large part of this trial … I think that’s a fair way of putting how the trial will proceed and how the last trial proceeded, and I’ve no doubt my friend will correct me, but there is for certain that.63

Defence counsel made no response to this, and subsequently in opening the case to the jury said: We anticipate that once you’ve heard … the complainant, you will develop significant and grave concerns for his reliability. You will hear some hair-raising stuff about him and he won’t be able to deny it. He will not be able to deny it. On the other hand, you have before you and you will hear evidence to this effect, because it can’t be challenged, this man [the accused] has never ever ever been in trouble with the police.64

The ‘hair-raising stuff ’ included a history of mental illness, drug abuse, and an extensive criminal record. Against this background, on the first day of the trial, part way through the complainant’s evidence in chief, the prosecutor sought leave to lead evidence of complaints of abuse by the accused, which the complainant had made to family and friends at various times, ranging from the mid-1980s through to the late 1990s. The application was made, as section 108(3)(b) clearly allows, in anticipation of it being put in cross-examination that the complainant’s evidence was a fabrication. The Prosecutor submitted that: It’s the defence case that, and it is a fact, that in the 90s the complainant first suffered a mental illness then commenced taking illegal drugs, then committed armed robberies and then went to jail. It’s the mental illness particularly that gives rise to why I want to rely upon these complaints. At issue is whether the memories of the complainant are truthful or whether they are the result of some or more psychotic episodes … One of the main attacks will be that the complainant suffered a period of mental illness and the suggestion will be that these memories arise because of it, rather than because they did in fact occur. Mental illness arises in the 90s your Honour as opposed to the 80s … The defence say, well there are these psychotic episodes. We respond and say, well there were complaints of it that predate the occurrence of the psychotic episodes and on top of that we have a psychiatrist to confirm what you would expect and in light of that will rely upon s108. …

61 R v Whitmore [1999] NSWCCA 247, [39]; (1999) 109 A Crim R 51, 58. His Honour added that: ‘Even if it did, on the issue of whether leave would be granted, the restraint from attacking credibility by going no further would be a most material matter mitigating against the grant of leave’. 62 Pavitt v The Queen [2007] NSWCCA 88, [105]; (2007) 169 A Crim R 452, 493 (McColl JA and Latham J). 63 Pavitt v The Queen [2007] NSWCCA 88, [99]; (2007) 169 A Crim R 452, 492 (McColl JA and Latham J). 64 Pavitt v The Queen [2007] NSWCCA 88, [100]; (2007) 169 A Crim R 452, 492 (McColl JA and Latham J).

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The importance is great because it is the rebuttal of the anticipated attack on the credibility of this witness. My friend’s made that very plain in his opening and this is the evidence which will in a sense restrict the jury’s hair standing on end.65

Defence counsel, on the other hand, contended that the complainant could be asked about his psychotic episodes, about his prior convictions and his drug abuse, without ‘directly or clearly … suggesting that he is reconstructing … or fabricating it or making it up’, and that unless it is explicitly ‘put to a complainant that he or she is fabricating or reconstructing … then the Crown … is precluded from attempting to get delayed complaint evidence in before a jury’.66 The Court of Appeal rejected the defence submissions, holding that the defence had made an allegation of fabrication: Leaving to one side the cross-examination of the complainant on the subject of his drug addiction and criminal history, it is difficult to envisage what other purpose counsel might have in cross examining the complainant about his mental illness than to implicitly suggest to the jury that his account of the appellant’s assaults upon him were a product of a disordered and delusional mind. This is particularly so given the nature of the complainant’s psychotic episodes. The complainant suffered a complete nervous breakdown in 1999. During that period, he believed that assassins were pursuing him and his fiancée, that they would have their hands and feet severed and their bodies would be cloned. The details of these delusions were elicited in cross-examination of the complainant, his mother and his former fiancée, albeit after the trial judge had granted the Crown leave to call the complaint evidence.67

11.6.2.3 The granting of leave With both of the exceptions in section 108(3), however, evidence of the prior consistent statement can only be adduced if the court gives leave.68 Perhaps the most important consideration, in the exercise of this discretion, will be the relevance that the prior consistent statement has to the attack made on the credibility of the witness. In Graham v The Queen, the majority of the High Court observed that: In exercising the discretion under s 108(3) to permit the adducing of evidence of a prior consistent statement, it is important to bear two matters in mind. First, s 108 creates an exception to the ‘credibility rule’—the rule that evidence that is relevant only to a witness’s credibility is not admissible. Second, it is important to identify how the evidence relates to the statutory premise for its admission. Whether, if admissible, the complaint becomes evidence of the truth of what is asserted is not relevant to the exercise of the discretion to give leave under s 108. The exercise of the discretion under s 108 depends upon the effect of the evidence on the witness’s credibility: here, the suggestion of fabrication.69

As the exercise of the discretion depends on the effect of the evidence on the witness’s credibility, the timing of the prior consistent statement is likely to be of particular importance in determining whether leave should be granted to admit it: It is evidence of a prior consistent statement which is relevant to rebut an attack upon the complainant’s general credibility which arises either by the introduction of a statement which is inconsistent with the evidence given in the trial or because of an allegation that the evidence given in court is a fabrication,

65 66 67 68

Pavitt v The Queen [2007] NSWCCA 88, [102]; (2007) 169 A Crim R 452, 492 (McColl JA and Latham J). Pavitt v The Queen [2007] NSWCCA 88, [103]; (2007) 169 A Crim R 452, 493 (McColl JA and Latham J). Pavitt v The Queen [2007] NSWCCA 88, [104]; (2007) 169 A Crim R 452, 493 (McColl JA and Latham J). As always, when determining whether or not to grant leave under a provision of the Act, the court must take into account the considerations set out in s 192, and discussed in Chapter 20: Procedural Provisions, [20.4]. 69 Graham v The Queen [1998] HCA 61, [8]; (1998) 195 CLR 606, [8], 609; (Gaudron, Gummow and Hayne JJ; footnote omitted).

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reconstruction, or the result of suggestion. Because the statement is being admitted to meet that particular attack, the timing of the making of the statement, generally speaking, will be more important than the circumstance in which the statement is made.70

In Graham, for example, the majority of the High Court went on to ask: How does the making of a complaint six years after the events bear upon that question? Unless the making of the complaint can be said to assist the resolution of that question, the evidence of complaint is not important (see ss192(2)(c)) and would do nothing except add to the length of the hearing (see ss192(2) (a)). And in this case, it is by no means clear that the making of a complaint six years after the event does assist in deciding whether the complainant had fabricated her evidence. Although trial counsel for the appellant suggested to the complainant, by his last question in cross-examination, that she was ‘making it all up’ the allegation of fabrication of evidence did not loom large in the trial. No question was put, and no answer was given, from which the time of alleged fabrication could be identified. The complaint having been made in 1994, and it having led at once to the start of police investigations, it may be doubted that a jury could gain assistance from its making in deciding whether the complainant had fabricated her story.71

However, as the facts of MDB demonstrate, the circumstances in which a prior consistent statement was made can sometimes be as significant as the timing. In that case, the complainant had been on a camping trip with a friend, as well as the friend’s brother and father. He made no complaint about any sexual abuse on return from the camping trip. However, six months later, when a further camping trip was proposed, the complainant told two friends, and then his mother, that the accused had sexually assaulted him on the earlier trip. Simpson J observed that: Logically, it will often be the case that evidence of a prior consistent statement will assist in the determination of credibility where, for example, the suggestion of fabrication is tied to a time or event or circumstance, and the prior consistent statement can be shown to predate that time or event or circumstance. Thus, for example, if it is put to a witness that he or she has fabricated an allegation of assault as a result of the discovery of the partner’s infidelity, that question of fabrication may be rebutted by evidence that, before the discovery of the infidelity, the same assertion or allegation had been made … Here, the evidence that was relevant only to the complainant’s credibility was not confined to the evidence of the statements he had made to his school friends and to his mother. The evidence also encompassed the circumstances which led to his making those statements. These circumstances were the prospect that he would be required to accompany the appellant on another camping trip. That, in my opinion, was capable of being very powerful in enabling the jury to understand why it was that he had delayed in his disclosure for a period of six months, but had made his disclosures when he did. It was capable of being compelling evidence in rebutting the suggestion of fabrication, by explaining the context and the circumstances in which he took the course he did.72

Similarly, in R v Cassar, the witness gave evidence that he had seen two of the accused push, and then stab, the deceased. When initially interviewed by the police, he denied seeing anything. Seven months later, he changed his story. His explanation was that he had been put in fear of his own life, and that of his family. At trial, it was put to him that his evidence was a fabrication. Sperling J accepted that ‘the ordinary case of a police statement in criminal proceedings or a proof of evidence in civil proceedings … would ordinarily be so devoid of value in answering an earlier inconsistent statement or in answering a suggestion of fabrication as not to be arguably probative at all’.73 Sperling J did, however, permit the prosecution to lead evidence of the fact that, prior to

70 71 72 73

R v DBG [2002] NSWCCA 328, [56]; (2002) 133 A Crim R 227, 241 (Howie J). Graham v The Queen [1998] HCA 61, [9]; (1998) 195 CLR 606, 609 (Gaudron, Gummow and Hayne JJ). R v MDB [2005] NSWCCA 354, [23]–[24]. R v Cassar (Judgment No 12) [1999] NSWSC 352, [18].

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going to the police, the witness had approached a police officer whom he knew socially, and told him about the threats to which he had been subjected, and that he had in fact seen the murder: It would be open to a jury to accept that this was a statement made by a man, fearful of telling what he knew but looking for a way to do so. A statement made in that context would have a probative value beyond mere assertion, in advance, of what was later said in evidence. It could rebut the suggestion of fabrication.74

11.7 THE CREDIBILITY OF HEARSAY The uniform evidence legislation takes a much more flexible approach to hearsay, admitting it far more freely than at common law. As a result, there might be concerns about the reliability of some of the hearsay admitted. Section 108A, of the uniform evidence legislation, addresses some of those concerns by allowing credibility evidence to be led in relation to the person who made the representation. Section 108A(1) is stated in the following terms: If: (a) evidence of a previous representation has been admitted in a proceeding; and (c) the person who made the representation has not been called, and will not be called, to give evidence in the proceeding; credibility evidence about the person who made the representation is not admissible unless the evidence could substantially affect the assessment of the person’s credibility.

‘Credibility evidence’ has the same definition in section 108A as it does in the rest of Part 3.7. Section 108A is an exclusionary rule with an exception; effectively combining sections 102 and 103 into a single provision, and extending them to evidence relevant to the credibility of the maker of a previous representation. Such evidence is thus inadmissible, unless it could substantially affect the credibility assessment of the person who made the previous representation. The test in section 108A—could the evidence ‘substantially affect the assessment of the person’s credibility’—is the same as the test in section 103, which applies to cross-examination on credibility. Section 108A(2) stipulates the same two matters, to which the court is to have regard, for the purposes of section 108A(1), as section 103(2) does in relation to section 103(1). These are: (a) whether the evidence tends to prove that the person who made the representation knowingly or recklessly made a false representation when the person was under an obligation to tell the truth; and (b) the period that elapsed between the doing of the acts or the occurrence of the events to which the representation related and the making of the representation.

This means that the same threshold applies to credibility evidence adduced in witness crossexamination (with respect to which section 103(1) applies), and credibility evidence relating to the maker of a representation who is not a witness. This should prevent an undesirable proliferation of evidence about the credibility of the makers of admissible hearsay representations. Section 108A is not restricted in its terms to evidence designed to impeach, rather than bolster, the credibility of the maker of the previous representation; on its face, there is no reason why favourable credibility evidence could not be admitted under section 108A, provided the court was satisfied that it could substantially affect the credibility of the person who made the previous representation. However, the factors set out in section 108A(2) arguably suggest that section 108A is primarily intended to permit the party, against whom a previous representation is admitted, to impeach the

74 R v Cassar (Judgment No 12) [1999] NSWSC 352, [19].

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credibility of the maker of the representation. Of course, if negative credibility evidence is admitted, then the party adducing evidence of the representation might more readily be permitted to lead positive credibility evidence to rehabilitate the credibility of the maker of the representation.75

11.8 EXPERT EVIDENCE A party may wish to lead expert opinion evidence relating to the credibility of a witness. If the party can cross-examine the witness about the matter, pursuant to section 103, and the witness denies the matters put to them—so as to satisfy the requirements in section 106—then the party may be able to lead expert testimony to rebut their denials, pursuant to either section 106(1), or section 106(2)(d). However, in other cases, the credibility rules considered thus far will offer no avenue for the leading of expert opinion evidence. For example:76 •

•

•

it may not be possible to put the expert opinion evidence appropriately or adequately to the witness as, for example, where the proposed expert testimony concerns the mental disorders suffered by the witness, and where the witness may not have been told about his or her disorders by a suitably qualified witness—this would mean that section 106 could not be engaged;77 or the witness may admit the matters put in cross-examination, so that it would not be possible to rely on section 106, in order to lead expert evidence providing a more complete picture of the witness’s disabilities; or the witness may be the party’s own witness (and the evidence designed to bolster his or her credibility), so that the party will not be able to cross-examine pursuant to section 103—again meaning that section 106 is not engaged.78

For these reasons, the Australian Law Reform Commission recommended the introduction of section 108C as a further avenue for the leading of expert evidence relevant to credibility,79 with section 108C(1) creating another exception to the credibility rule for: evidence given by a person concerning the credibility of another witness if: (a) the person has specialised knowledge based on the person’s training, study or experience; and (b) the evidence is evidence of an opinion of the person that: (i) is wholly or substantially based on that knowledge; and (ii) could substantially affect the assessment of the credibility of a witness; and (c) the court gives leave to adduce the evidence.

Evidence can be adduced under section 108C, either to impeach or to support the credibility of a witness, provided that the court gives leave. The exclusionary rules in Chapter 3 of the uniform evidence legislation are, however, cumulative. Expert opinion evidence relating to the credibility of a witness must therefore satisfy the requirements of both the opinion rules in Part 3.3, and the credibility rules in Part 3.7, in order to be admissible. However, the language in paragraphs (a) and (b)(i) of section 108C(1) is obviously based on the language in section 79. This means that evidence, which satisfies those conditions, will also satisfy the conditions for admission contained in Part 3.3. So, for example, in De Silva v The Queen, the Victorian Court of Appeal held that a 75 76 77 78 79

See Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005) [12.94]. See Australian Law Reform Commission, Discussion Paper 69, [11.104]. See Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005) [12.116]. See, for example, Murphy v The Queen [1989] HCA 28; (1989) 167 CLR 94. See Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005) [12.108]–[12.133], and Australian Law Reform Commission, Discussion Paper 69, [11.100]–[11.110]. See also Criminal Procedure Act 2009 (Vic) s 388.

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psychiatrist should not have been permitted to give evidence about the tenets of Catholicism, or to speculate about the complainant’s reasons for not revealing details of her later allegations in a videotaped interview, because the evidence was not wholly or substantially based on the expert’s specialised knowledge.80 The condition, contained in section 108C(1)(b)(ii), that the evidence has the capacity to ‘substantially affect the assessment of the credibility of a witness’ brings the section into line with other provisions in Part 3.7, including sections 103 and 108A, while the requirement of leave in paragraph (c) is consistent with the leave requirement in sections 106(1) and 108(3). Applying this provision in R v WR (No 3) [2010] ACTSC 89, [33]–[36], Refshauge J held that an expert’s assessment, that the complainant had various personality disorders and a vivid private emotional life, would not substantially affect her credibility as a witness, given that the expert did not say that the presence of such disorders meant the complainant was less likely to tell the truth, or be unable to distinguish truth from falsity.81 Sub-section (2) of section 108C is in identical terms to section 79(2), and provides that: To avoid doubt, and without limiting subsection (1): (a) a reference in that subsection to specialised knowledge includes a reference to specialised knowledge of child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their behaviour during and following the abuse); and (b) a reference in that subsection to an opinion of a person includes, if the person has specialised knowledge of that kind, a reference to an opinion relating to either or both of the following: (i) the development and behaviour of children generally; (ii) the development and behaviour of children who have been victims of sexual offences, or offences similar to sexual offences.

Examples of expert opinion evidence that might be admitted pursuant to section 108C include: • •

•

•

•

evidence on the development and behaviour of children generally;82 evidence about the development and behaviour of children who have been victims of sexual offences, or similar offences, including evidence of behavioural changes that a child who has been the victim of a sexual offence is likely to exhibit, and evidence of how a child who has been the victim of a sexual offence may behave towards his or her abuser;83 evidence in relation to any relevant cognitive impairment of a witness, including mental illness, intellectual disability, and personality disorders, provided that such impairments are indeed relevant to the witness’s credibility;84 evidence on the effects and experience of family violence where that is relevant to the credibility of a witness, such as evidence of ‘battered woman syndrome’ used to explain why a person might have stayed in a relationship, despite being subjected to violence or abuse, where the fact of such staying is being used to impugn the credibility of the witness’s evidence; evidence as to the hysterical and unstable nature of the alleged victim of an assault;85 and

80 81 82 83

De Silva v The Queen [2013] VSCA 339, [27]. R v WR (No 3) [2010] ACTSC 89, [32]–[36]. See Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005) [9.138]–[9.158]. See, for example, HG v The Queen [1999] HCA 2; (1999) 197 CLR 414; C v The Queen (1993) 60 SASR 467; J v The Queen (1994) 75 A Crim R 522; and F v The Queen (1995) 83 A Crim R 502. 84 Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005) [12.116]; see, for example, Farrell v The Queen [1998] HCA 50; (1998) 194 CLR 286; and R v Edwards (1986) 20 A Crim R 463. 85 Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005) [12.112], referring to Toohey v Commissioner of Metropolitan Police [1965] AC 595; see also R v Souleyman NSWSC, unreported, 5 September 1996, Levine J).

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•

evidence of a witness’ speech defect, where the defect might suggest that the witness should not, because of his or her demeanour, be believed.86

In a child sexual abuse case, for example, the complainant’s credibility might be challenged in cross-examination, on the basis that her behaviour or prior statements were inconsistent with her complaint. The allegedly inconsistent behaviour might be a delay in making the complaint; the complainant might have made a series of statements, in which her allegations of abuse became progressively more detailed or extensive; or, the complainant might at some stage have recanted her allegations. In such situations, the prosecution might wish to lead expert evidence about the behaviour of abused children, in order to show that the behaviour exhibited by the complainant was not inconsistent with the abuse allegations. Subject to the court being satisfied that such evidence could substantially affect the assessment of the complainant’s credibility, and to leave being granted, section 108C would enable the leading of such evidence. For example, in MA v The Queen [2013] VSCA 20, the accused was charged with having committed sexual offences against his now adult daughter when she was a child. The defence argued that the complainant’s behaviour, in the years following the assaults, was inconsistent with the behaviour one would expect if she had been abused in the way that she alleged. The prosecution, in turn, wished to rebut the defence case as to counter-intuitive behaviour by calling expert evidence to establish that the complainant’s behaviour was neither necessarily inconsistent with the allegations she made, nor an abnormal response to offending of that type. The Victorian Court of Appeal commented that: Such evidence could not establish that it was probable the complainant was telling the truth, but it could establish that her behaviour was not demonstrative of untruthfulness by reference to common or usual patterns of behaviour as asserted by the defence. In this sense, it could establish that the counter-intuitive behaviour complained of was of neutral significance. It could not demonstrate that the behaviour rendered it more or less likely that the offending had occurred as alleged.87

However, the Court cautioned against leading evidence about the behaviour of the actual complainant (or her parents), saying that: We should say before leaving the question of expert evidence bearing upon the credibility of a complainant that one would not ordinarily expect an expert to be asked to express an opinion concerning the complainant’s actual behaviour after the alleged offending conduct or the reasons of a parent in the case before the court for not accepting the complainant’s claim or the complainant’s actual reaction to the rejection of her claim. These are questions which are within the jury’s province to resolve. The occasion should be relatively rare where an expert should be invited to express an opinion as to the actual behaviour of the victim or the victim’s parent and whether it advanced the probabilities of a fact in issue.88

11.9 THE CREDIBILITY OF COMPLAINANTS IN SEXUAL OFFENCE TRIALS The rules discussed under the previous heading, and under the next, apply to all witnesses, including the complainant in a sexual offence trial. However, in addition to these rules, there are special rules that apply only to the complainant in a sexual offence trial.

86 See, for example, Coombe v Bessell [1994] TASSC 66; (1994) 4 Tas R 149. 87 MA v The Queen [2013] VSCA 20, [22]. 88 MA v The Queen [2013] VSCA 2, [100].

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11.9.1 Delay Where there has been some delay in disclosing or reporting a sexual offence, defence counsel may cross-examine the complainant with a view to showing that she did not make a complaint at the earliest possible opportunity. The High Court has held that the absence of, or delay in making, a complaint is irrelevant to the issues in a rape trial, but that it is relevant to the credibility of the complainant.89 If defence counsel does suggest that there was a delay in making a complaint, however, then statutory provisions in several jurisdictions require the judge to warn the jury that delay in complaining does not necessarily indicate that the allegation is false, and to inform the jury that there may be good reasons why a victim of sexual assault may hesitate in complaining about it.90 If, however, the delay has been such as to cause the defendant some forensic disadvantage, then the defendant may ask the court to inform the jury of the nature of that disadvantage, and of the need to take it into account when considering the evidence.91 Examples of forensic disadvantage would include the fact that potential witnesses had died or could not be located, and the fact that potential evidence might have been lost or become unavailable.92 The provision is not restricted to sexual offences, and can apply in any criminal proceeding where there has been delay in bringing the prosecution. If the court is satisfied that the defendant has indeed suffered a significant forensic disadvantage, then the court can (but need not) give such a direction; however, the court must not suggest to the jury that it would be dangerous or unsafe to convict the defendant, because of the delay, or because of the forensic disadvantage suffered due to the delay.

11.9.2 Sexual history evidence In all Australian jurisdictions, there are special statutory regimes governing the use of sexual history evidence relating to complainants in sexual offence trials. The admissibility of sexual history evidence, when put forward on the basis that it is relevant to the facts in issue, is discussed in Chapter 10: Tendency and Coincidence. This section is concerned with the admissibility of such evidence when put forward on the basis that it is relevant to the credibility of the complainant as a witness. As noted in Chapter 10: Tendency and Coincidence, the various rape shield provisions place prohibitions on certain types of question—usually those relating to the sexual activities, or sexual experience, of the complainant. The precise scope of these prohibitions is detailed in Chapter 10: Tendency and Coincidence. However, in each of the jurisdictions, leave can be granted to permit cross-examination about sexual activities or sexual experience if certain conditions are met. While the Australian Capital Territory’s statute expressly permits leave to be granted if the evidence ‘is a proper matter for crossexamination about credit’, similar language was removed from the Victorian provision after a law reform report criticised such evidence; however, arguably some credibility evidence may still be admitted under the new test of ‘substantial relevance to a fact in issue’.93

89 Kilby v The Queen [1973] HCA 30; (1973) 129 CLR 460. 90 See Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 71; Criminal Procedure Act 1986 (NSW), s 294; Criminal Code 1924 (Tas), s 371A; Crimes Act 1958 (Vic), s 61(1)(b); and Sexual Offences (Evidence and Procedure) Act 1983 (NT), s 4(5). See also Criminal Procedure Act 2009 (Vic), s 388, pursuant to which expert evidence may be adduced on the issue. 91 Section 165B; see Chapter 19: Warnings and Information for a more detailed discussion of this issue. 92 Evidence Act 1995 (NSW), s 165B(7). 93 See Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 53(1)(b); Criminal Procedure Act 2009 (Vic), s 349. See Victorian Law Reform Commission, Final Report: Sexual Offences, Melbourne, 2004, [4.68] but c.f. Evidence Act 2008 (Vic), s 55(2)(a).

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In New South Wales, the relevant provisions deal with the cross-examination of the complainant generally, and make no specific provision for evidence said to be relevant to credibility. There are, however, two conditions, that if met, would arguably allow the complainant to be cross-examined in relation to sexual history for a credibility purpose. The first is that, it has been ‘disclosed or implied’ in the prosecution case, ‘that the complainant has, or may have, during a specified period or without reference to any period … had sexual experience, or a lack of sexual experience, of a general or specified nature; or taken part in or not taken part in sexual activity of a general or specified nature’. The second is that, the defendant ‘might be unfairly prejudiced if the complainant could not be cross-examined … in relation to the disclosure or implication’.94 In Victoria and the Australian Capital Territory, a complainant’s sexual history ‘is not to be regarded as being a proper matter for cross-examination about credit unless the evidence, if accepted, would be likely to substantially impair confidence in the reliability of the complainant’s evidence’. Moreover, in Victoria, the application for leave must be made before the trial; the application must set out the initial questions to be asked, and the scope of the questioning sought to flow from the initial questioning.95 The Northern Territory provisions largely follow the Victorian model.96

SUMMARY Credibility evidence about a witness is prima facie inadmissible under the uniform evidence legislation. There are a number of exceptions to this rule. • •

•

•

•

•

•

The credibility rule does not apply to evidence adduced in cross-examination, if the evidence could substantially affect the assessment of the credibility of the witness. Where a witness denies an allegation that is relevant only to his or her credibility, the cross-examiner is not, as a general rule, permitted to prove the truth of the allegation by leading evidence from another source. Such proof is permitted, however, if the allegation was one of bias, prior conviction, prior inconsistent statement, lack of capacity, or opportunity for accurate observation or recollection; or the making of a false representation, while under an obligation to tell the truth; or if the court grants leave. If a witness’s credibility has been impeached in cross-examination, by means of a prior inconsistent statement, or an allegation of fabrication, reconstruction or suggestion, the party calling the witness may be permitted to lead evidence of a prior consistent statement, in order to re-establish the witness’s credibility. Where evidence of a previous representation (hearsay) has been admitted, evidence relevant to the credibility of the person who made the representation will be admissible, if it could substantially affect the assessment of the credibility of the person. Expert opinion evidence relating to the credibility of a witness can be admitted, with the leave of the court, if the evidence could substantially affect the assessment of the witness’ credibility. Rape shield provisions, operating in addition to the uniform evidence legislation, limit the use of evidence relating to a complainant’s sexual history, when offered on the basis that it is relevant to the complainant’s credibility as a witness.

94 See Criminal Procedure Act 1986 (NSW), s 293(6). 95 See Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 53; and Criminal Procedure Act 2009 (Vic), Part 8.2, Division 2—Evidence concerning complainant, ss 342, 344, 347 and 352(b). 96 See Sexual Offences (Evidence and Procedure) Act 1983 (NT), s 4.

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NO

THE EVIDENCE IS NOT CREDIBILITY EVIDENCE AND IS NOT SUBJECT TO THE CREDIBILITY RULE

s 101A

YES Is the evidence admissible for that purpose?

YES

YES

Is the evidence relevant for any other purpose?

NO

NO

The evidence is credibility evidence and is inadmissible (s102), unless ....

NO

Re-establishing credibility: s 108 Is the evidence being adduced in re-examination? (which is limited to matters arising out of crossexamination)

Could the evidence substantially affect the assessement of the credibility of the witness?

YES

YES

Rebutting denials: s 106

NO

THE EVIDENCE IS INADMISSIBLE

YES

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Does the court give leave?

NO

Does the court give leave? YES

Does the person giving the evidence have specialised knowledge? YES

NO

Is the evidence based on that knowledge?

YES

NO NO

Could the evidence substantially affect the assessment of the credibility of the other witness? YES

YES

NO

NO

Does the court give leave? YES

YES

THE ADMISSIBILITY OF THE EVIDENCE IS NOT AFFECTED BY PART 3.7 (ie the evidence is admissible as credibility evidence)

NO

NO

NO Is it suggested that the evidence of the witness has been fabricated, reconstructed, or is the result of suggestion?

YES Does the evidence tend to show that the witness is biased; has a prior conviction; has made a prior inconsistent statement; is unable to be aware of matters to which their evidence relates; or has made a false representation while under an obligation to tell the truth?

NO

Has evidence of a prior inconsistent statement of the witness been admitted?

Did the witness deny, or not admit or agree to, the substance of the evidence?

Does the evidence relate to the credibility of another witness?

YES

YES

Has the substance of the evidence been put to the witness in crossexamination? YES

NO

NO Is the evidence of a prior consistent statement of the witness?

The evidence may be adduced in cross-examination of the witness

NO

Expert credibility evidence: s 108C

THE EVIDENCE IS INADMISSIBLE

Cross-examination: s103

FIGURE 11.1 EVIDENCE RELATING TO THE CREDIBILITY OF WITNESSES

Does the evidence affect the assessment of the credibility of a witness?

YES

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CHARACTER

12

INTRODUCTION Part 3.8 of the uniform evidence legislation is entitled ‘Character’. The term ‘character’ refers to a broad category of evidence that has long worried the common law. In Dawson v The Queen [1961] HCA 74; (1961) 106 CLR 1, Dixon CJ referred to: the thesis of English law that the ingredients of a crime are to be proved by direct or circumstantial evidence of the events, that is to say, the parts and details of the transaction amounting to the crime, and are not inferred from the character and tendencies of the accused. The Chief Justice uses ‘character’ to refer to the inherent qualities of the accused. However, the regulation of character in evidence law is also concerned with any evidence of the accused’s behaviour (separate from the ‘transaction amounting to the [alleged] crime’) that may cast light on those qualities. Rather than dealing with the problem of character through a specific exclusionary rule, the uniform evidence law addresses this topic through its hearsay, opinion, tendency, coincidence and credibility rules. It does so through specific provisions altering those rules when the evidence is ‘about’ the defendant or his or her character. The title shared by Part 3.8 and this chapter is not especially apt, though a more accurate title would be quite convoluted. Despite its generality (and reform proposals in one jurisdiction),1 Part 3.8 is exclusively concerned with the character of criminal defendants. But it is not the sole, or indeed main, part of the uniform evidence law that deals with that topic. Rather, Part 3.8 is an adjunct to particular rules in Parts 3.6 and 3.7. As outlined in Chapter 10: Tendency and Coincidence and Chapter 11: Credibility, those Parts contain rules regulating the use of evidence of the character (and some other behaviour) of everyone. However, each also has specific rules that modify the general ones to provide extra protection for criminal defendants. This chapter of the book deals with all the special rules about criminal defendants in Parts 3.6, 3.7 and 3.8. It addresses three sets of provisions: • •

an exclusionary rule (in Part 3.6) for tendency and coincidence evidence adduced by the prosecution about the defendant; exclusionary rules (in Part 3.7) for credibility evidence adduced by the prosecution or a co-accused about the defendant; and

1 Department of Justice (Victoria), Defensive Homicide: Proposals for Legislative Reform, October 2013, proposing an analogous provision to ss 110(2) and (3) for prosecution evidence rebutting defense evidence that the victim of a homicide is not of good character.

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•

several new exceptions (in Part 3.8) to various exclusionary rules for evidence supporting or rebutting the proposition that the defendant is of ‘good character’.

The chapter concludes by addressing how trial judges manage the vast and difficult-to-control issue of character in jury trials.

12.1 TENDENCY AND COINCIDENCE EVIDENCE ABOUT THE DEFENDANT In addition to the two general, mild exclusionary rules for tendency and coincidence reasoning in sections 97 and 98, Part 3.6’s final section provides for a stricter exclusionary rule for such reasoning about criminal defendants. Section 101(2) provides that: Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.

This rule relies heavily on concepts developed elsewhere in the uniform evidence law. The Dictionary definitions of ‘tendency evidence’ and ‘coincidence evidence’ tie those terms to evidence within the scope of the tendency and coincidence rules, discussed in Chapter  10: Tendency and Coincidence. In section 101(2), the terms are qualified as being ‘about the defendant’. So, section 101(2) regulates when a court can find that the defendant did a particular act or had a particular state of mind, based on either: • •

the defendant’s tendencies to do that act or have that state of mind (as proven by evidence of the defendant’s character, reputation, conduct or tendencies); or the improbability of two or more events occurring coincidentally (having regard to their similarities).

As the evidence must be adduced by the prosecution, the act or state of mind will typically be an element of a crime or some other wrong-doing, but there is no strict requirement to that effect in section 101(2); so, it would, for example, also cover evidence of an innocent-seeming tendency, such as a tendency to wear a particular brand of perfume, that is incriminating in a particular case (for example, if a witness has identified the brand of perfume worn by an offender). Section 101(2) does not regulate defence evidence (including bad character evidence by a co-defendant) or evidence about other witnesses (such as a crime victim’s tendencies or the coincidences involving an accomplice of the defendant); that evidence is instead regulated by other rules (such as sections 97 and 98, and, in some respects, Part 3.8). The other two key concepts of section 101(2) are ‘probative value’ and ‘prejudicial effect’. The former is defined in the Dictionary and is central to the test of relevance.2 Both terms are also central to the discretionary exclusions in Part 3.11.3 The only concept that is unique to section 101(2) is the notion of probative value ‘substantially outweigh[ing]’ prejudicial effect. This section’s analysis proceeds by giving separate consideration to the probative value and the prejudicial effect of the evidence regulated by section 101(2). Next, it examines the exclusionary

2 See Chapter 4: Relevance. 3 See Chapter 16: Discretionary and Mandatory Exclusions.

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rule and the ‘substantially outweighs’ test. The section concludes by discussing the section’s application in sexual offence trials.

12.1.1 Probative value In Chapter 10: Tendency and Coincidence, the probative value of both tendency and coincidence evidence was analysed according to three factors: • • •

the cogency of the evidence that the conduct or an event occurred; the strength of the inference that a pattern of human behaviour exists; and the significance of that pattern to a fact in issue.

In most litigation, these three factors rarely combine to produce strong inferences. Rather, just as occurs in everyday life, reasoning about possible behavioural patterns typically only plays a minor supporting role in legal fact-finding, offering only an additional reason to reach a conclusion that is supported by other evidence. The tendency and coincidence rules (with their requirement of ‘significant probative value’) suffice to weed out the more marginal cases. However, tendency or coincidence evidence about the defendant may potentially play a central role in fact-finding in criminal proceedings. A classic example is R v Ellis [2003] NSWCCA 319; (2003) 58 NSWLR 700, the most significant precedent to date on section 101(2). Ellis was charged with thirteen burglaries committed between 1996 and 1999 at small shops in various NSW country towns. The evidence connecting him to each individual burglary was very slight. Eight of the burglaries coincided with Ellis or a relative of his renting a car in Sydney that was either seen at the relevant town or was returned with mileage consistent with being driven there and back. On one evening when a further three burglaries occurred, call records showed that Ellis’s phone had been used that night in that town. No one saw Ellis at any of these locations. Clearly, such evidence could not possibly sustain a conviction for any of the burglaries. But the position changed once the tendency and coincidence evidence about Ellis was considered. The main tendency reasoning against Ellis was based on evidence that he committed four burglaries in 1994. While this evidence falls a long way short of proof of Ellis’s guilt (and, indeed, was excluded in his trial), it is considerably stronger than the sort of tendency reasoning offered in civil cases with respect to all three probative value factors: •

•

•

Cogency of the evidence: While past behaviour in civil disputes is often poorly evidenced (for example, by an interested or vague witness), evidence supporting criminal tendencies is typically the subject of a police investigation. In Ellis’s case, he had pleaded guilty and been sentenced for the four previous burglaries, so proof of his past behaviour (relying on his guilty pleas as admissions) would be straightforward. Strength of the inference: While many alleged behavioural tendencies are highly speculative, the typically aberrant acts involved in crimes are often more readily attributed to innate characteristics. To put the prosecution’s tendency evidence about Ellis colloquially: once a thief, always a thief (or, at least, a tendency to be one). Academic studies of criminal careers and serial crimes, while by no means endorsing lay beliefs on these topics, nonetheless provide cautious support for the proposition that there is a correlation between some types of crime and the inherent qualities of some individuals. Significance of the pattern: Once a tendency is established, it will often be a powerful indication of responsibility for a further crime, at least in the context of other evidence. In Ellis’s case, the evidence that he had (at least) an opportunity to commit eleven of the thirteen burglaries, combined with his evident willingness to commit that sort of crime, will go some way to showing that he is likely to be guilty of some, if not all, of the offences.

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The relevant coincidence evidence against Ellis was of similarities among the thirteen burglaries: each was committed by removing the seal from a storefront window and lifting out the glass without breaking it, allowing the crime to be committed without attracting attention. Again, such evidence (in criminal cases) often gains weight from all three probative value factors: •

•

•

Cogency of the evidence: Crimes are of enormous concern to the individuals affected, commercial interests (such as insurance companies) and the wider public; so, in Ellis’s case, the technique used in each burglary was investigated and noted with much more precision than typically accompanies non-criminal acts. Strength of the inference: Patterns of criminal behaviour are better known (or, at least, can be more credibly evidenced) than most other behaviour patterns; so, in Ellis’s case, the prosecution argument was considerably bolstered by repeated police evidence that the ‘glass removal’ modus operandi was rare in rural burglaries. Significance of the pattern: The relatively rare nature of crime means that many criminal patterns can readily be attributed to a single individual. A body of empirical evidence suggests that, at least for some crimes, a large proportion of offences are committed by a relatively small fraction of society and many instances of criminality in individuals are typically accompanied by a pattern of prior offences and later recidivism. In Ellis’s case, the similarities among the crimes place the otherwise mild circumstantial evidence linking the defendant to eleven of them in a new light.

Views will obviously differ on the strength or otherwise of these various inferences, and doubtless the position will vary depending on the sort of crimes in question, the quantitative aspects of the evidence (including the number of offences and their wider prevalence) and the qualitative details of an alleged tendency or similarity.4 But the fact remains that tendency and coincidence evidence about a criminal defendant will often satisfy sections 97 and 98’s requirement of significant probative value. Section 101(2)’s role is therefore to bring further, quite different considerations to bear.

12.1.2 Prejudicial effect It is not only the probative value of tendency and coincidence reasoning that may be supercharged in criminal proceedings. The test in section 101(2) juxtaposes probative value against ‘any prejudicial effect [the evidence] may have on the defendant’. The notion of ‘prejudicial effect’ is discussed in Chapter 16: Discretionary and Mandatory Exclusions; and is easily misunderstood in the context of section 101(2). It is not concerned with the mere fact that the evidence can be used to convict the defendant. Rather, it is concerned with a narrower risk: that the defendant may be convicted for the wrong reasons. While the uniform evidence law does not define ‘prejudicial effect’, it has been the subject of an academic analysis (by one of the authors), an analysis since followed in Canada and New Zealand:5 When assessing the prejudicial effect of evidence on the defendant, the Judge must consider, among any other matters,— (a) whether the evidence is likely to unfairly predispose the fact-finder against the defendant; and (b) whether the fact-finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions.

4 C.f. Evidence Act 2006 (NZ), s 43(2), (3). 5 Evidence Act 2006 (NZ), s 43(4) c.f. A Palmer, ‘The Scope of the Similar Fact Rule’ (1994) 16 Adelaide LR 161, 169–72; R v Handy [2002] 2 SCR 908, [31]. See also The Law Commission, Evidence of Bad Character in Criminal Proceedings (2002), [6.33] and draft Bill, cl 17(2).

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The first variety of prejudice is referred to as ‘moral prejudice’. It can be simply illustrated in Ellis’s case. A jury or judge, having learnt that Ellis committed four burglaries just two years before the offences in question, may react emotionally, concluding that he is a menace who is less deserving of procedural protections for defendants, such as proof beyond reasonable doubt. Or the court may be so angered by his past offences that it decides to add to the earlier punishment by finding him guilty of further offences regardless of its view of the evidence. Clearly, such reasoning would breach Ellis’s right to a hearing before an impartial court. Even if evidence of Ellis’s past offences were excluded, the risk of moral prejudice may still arise in relation to the thirteen new alleged burglaries through a version of guilt by association. In Perry v The Queen [1982] HCA 75; (1982) 150 CLR 580, the prosecution’s case that the defendant poisoned her de facto husband included evidence that three other members of the defendant’s family had suffered arsenic poisoning over the course of two decades. Murphy J observed: Usually an accused has to answer (at least on very serious charges) in relation to one alleged event, but here the accused was ‘put to answer’ for a good part of her life.

For example, the court may view Ellis’s apparently unusual hiring of cars as something that he had to account for, potentially undermining procedural protections such as the right to silence and the criminal burden of proof. In Perry, Murphy J argued that the number of allegations laid against her ‘conjures up a highly suspicious prejudicial atmosphere where the presumption of innocence tends to be replaced by a presumption of guilt’. The second type of prejudice, termed ‘reasoning prejudice’, refers to intellectual rather than emotional failings. Such failings are a potent risk for all tendency and coincidence evidence. Psychological research suggests that people commonly overestimate the value of inherent characteristics and underestimate the significance of context in predicting other people’s behaviour. Also, psychologists have found that people routinely misunderstand both the mathematics of probability and the actual prevalence of supposedly improbable events. As Murphy J explained in Perry: [T]his is an extremely dangerous method of determining guilt. For centuries it was regularly used in England, other parts of Europe and the American colonies to convict millions of people of the impossible crime of witchcraft … [H]ighly improbable, as well as merely improbable, sequences and combinations are constantly occurring. In random tossing, the occurrence of a run of 10 consecutive heads or tails is generally regarded as highly improbable. But this will occur on the average of one in every 512 tosses, and the lesser sequences more frequently … Although it is extremely improbable that any particular ticket will win a large lottery, it is certain that one will.

While reasoning prejudice is possible in relation to all tendency and coincidence reasoning, the stakes are obviously much higher where such reasoning is part of the prosecution case for guilt, because of the potential probative value of that reasoning. Moreover, reasoning prejudice can augment any moral prejudice. In Ellis’s case, the compelling evidence that he was probably connected to many of the burglaries may have distracted the court from the possibility that some of the burglaries may have had no connection to him or, more cogently, that the similarities and circumstantial connections may have been due to some of the crimes being committed by Ellis’s acquaintances.

12.1.3 The exclusionary rule As is discussed in Chapter 16: Discretionary and Mandatory Exclusions, all evidence is potentially subject to exclusion if it fails a cost–benefit analysis weighing probative value against prejudicial effect. Despite that requirement, most evidence is either readily admitted (because prejudicial

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effect is relatively low) or readily excluded (because probative value is relatively low). The problem for tendency and coincidence evidence about criminal defendants is that both probative value and the risk of unfair prejudice are often extremely high. The resulting intellectual struggle in cases like Ellis was captured well by Mustill LJ in 1991: [T]he rules—so far as one can state any rules—are based on an uneasy mixture of logic, common sense and expediency. Common sense suggests that if it is known that a man has committed 49 burglaries in the past this fact tells one something about the probability of his having committed yet another. Logic at once intervenes to point out that the fact will not itself prove that the habitual burglar has actually committed a further offence, still less the particular offence charged against him in the indictment, although it may shed light on an admitted or proven connection between the defendant and the acts which are alleged to have constituted the offence. Expediency emphasises the need to keep careful watch on the use of [such] evidence because of the risk that the jury will proceed directly from evidence suggesting predisposition to an inference of guilt … Finally, expedience and common sense join forces to insist that there may nevertheless be cases where the prospect that the fact of the previous offence will tell the jury something sufficiently solid and legitimate about the instant offence is sufficient to justify the taking of that risk. A procedure thus arrived at is unlikely to yield readily to intellectual analysis.6

The uniform evidence legislation’s solution is to require trial judges to weigh probative value against prejudicial effect for such evidence with a thumb on the scale in favour of exclusion. This can be observed by comparing similar rules requiring or permitting exclusion if the evidence’s: • • •

‘probative value is substantially outweighed by the danger that the evidence might … be unfairly prejudicial to a party’7 (for all evidence); ‘probative value is outweighed by the danger of unfair prejudice to the defendant’ (for all prosecution evidence);8 and ‘probative value’ does not ‘substantially outweigh … any prejudicial effect it may have on the defendant’ (for all prosecution tendency or coincidence evidence about the defendant).9

As can be seen, the narrower the rule’s scope, the more it favours exclusion. Obviously, the general exclusionary discretions in sections 135–7 are redundant for evidence that falls within the scope of s 101(2) (apart, perhaps, for the additional factors in section 135 concerning misleading, confusing or time-wasting evidence). Also, unless the tendency or coincidence reasoning somehow carries only minimal risk of prejudicial effect, the requirement of ‘significant probative value’ in sections 97 and 98 should add little, as prosecution evidence that fails that standard is unlikely to satisfy section 101(2); indeed, the NSW Court of Criminal Appeal regards section 101 as not requiring a ‘separate “decision”’ on admissibility, but rather as augmenting sections 97 and 98’s ‘significant probative value’ test with ‘for criminal cases only, an additional consideration, which amounts to a further barrier or hurdle to admissibility’.10 The notice requirements in those rules, while still applicable, are also less significant because of the general obligation of the prosecution to disclose relevant evidence to the accused. Consistently with Mustill LJ’s discussion, the test in section 101(2) is not amenable to intellectual analysis. For example, one NSW judge has suggested a definition of ‘substantial’: it ‘is used to mean “large, weighty or big” and indicates an absolute significance’.11 As McHugh J has explained:

6 7 8 9 10 11

R v B(CM) (1991) 92 Cr App R 36, 38. Section 135(a) (emphasis added). Section 137 (emphasis added). Section 101(2) (emphasis added). DAO v The Queen [2011] NSWCCA 63; (2011) 81 NSWLR 568, [170]. R v Fletcher [2005] NSWCCA 338; (2005) 156 A Crim R 308, [119].

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[T]he proposition that the probative value of the evidence must outweigh its prejudicial effect is one that can be easily misunderstood. The use of the term ‘outweigh’ suggests an almost arithmetical computation. But prejudicial effect and probative value are incommensurables. They have no standard of comparison. The probative value of the evidence goes to proof of an issue, the prejudicial effect to the fairness of the trial. In criminal trials, the prejudicial effect of evidence is not concerned with the cogency of its proof but with the risk that the jury will use the evidence or be affected by it in a way that the law does not permit. In no sense does the probative value of evidence disclosing propensity, when admitted, outweigh its prejudicial effect. On the contrary, in many cases the probative value either creates or reinforces the prejudicial effect of the evidence. In my view, evidence that discloses the criminal or discreditable propensity of the accused is admitted not because its probative value outweighs its prejudicial effect but because the interests of justice require its admission despite the risk, or in some cases the inevitably, that the fair trial of the charge will be prejudiced.12

In Ellis’s case, the trial judge excluded the defendant’s four prior convictions for burglary. This can be explained on the basis of low probative value—indeed, the judge held that they failed section 97’s test of significant probative value—or high prejudicial effect (because of the increased moral prejudice of past proven crimes). He also excluded the two counts of burglary where the prosecution had no evidence of any links to Ellis (or his hire car or phone), a decision explicable by the correspondingly lower probative value of the coincidence reasoning in those instances and the higher danger that the court will too readily assume that Ellis is guilty of any such unsolved burglaries. However, the judge held that section 101(2)’s test was satisfied for the coincidence reasoning about the similarities of the eleven burglaries where there was a connection to Ellis, a conclusion endorsed by the NSW Court of Criminal Appeal and by the High Court (which initially granted special leave and then revoked it, in part because it had formed the view that Ellis’s appeal had little prospect of success). Absent in all three courts is a reasoned explanation of why the ‘substantially outweighed’ test is satisfied. Rather, as is the norm, the factors that lend probative value were listed (without any judgment as to which factors, for example number of burglaries or nature of the modus operandi, were crucial) and there was no assessment beyond mere assertion of prejudicial effect. Further— and, in the authors’ view, unfortunately—the High Court has endorsed the view of Spigelman CJ that there is no need for section 101(2)’s application to be guided by the consideration that the test is ‘one of very considerable stringency’.13 It is (apparently) unavoidable for any discussion of section 101(2) to occur without reference to the common law, which has had a lengthy history of inventing, abandoning but never quite forgetting a variety of rules for the admissibility of so-called ‘similar fact’ evidence. The most recent test was developed by the High Court in Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461 in the same year the uniform evidence legislation was first enacted in Australia. A majority of the Court held that such evidence is admissible if and only if there is no rational view of the evidence consistent with the defendant’s innocence. The Pfennig test, which has always been controversial because it apparently requires trials judges to mimic the jury’s assessment of whether or not the accused is guilty, has been expressly rejected in many jurisdictions, both overseas and in Australia.14 In Ellis, the NSW Court of Criminal Appeal ruled that Pfennig was displaced by section 101(2)’s

12 Pfenning v R [1995] HCA 7; (1995) 182 CLR, 483. 13 Ellis v The Queen [2004] HCA Trans 488, approving R v Ellis [2003] NSWCCA 319; (2003) 58 NSWLR 700, [89]. 14 R v H [1995] 2 A.C. 596, 610–11, 618, 621 & 625; R v Handy [2002] 2 SCR 908, [97]; Evidence Act 1906 (WA), s 31A; Evidence Act 1929 (SA), s 34P.

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balancing test, a view summarily endorsed by the High Court.15 However, the NSW court noted that the Pfennig test may have a continuing role:16 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.

This proviso follows McHugh J’s concurring judgment in Pfennig, where he ruled that the full stringency of the ‘no rational view’ test is only required in cases where ‘the risk of an unfair trial is very high’.17 In the authors’ view, continuing recourse to common law cases in applying section 101(2) is undesirable, due to both the dubious merits of the previous common law and the fresh start intended by the uniform evidence law. Ample reasoned contemporary analysis is available from the courts of Canada, the United Kingdom and New Zealand, which have each adopted rules that are very similar to section 101(2).18 Section 101(2)’s scope is limited in three ways. It: •

•

•

only applies to evidence offered to support tendency or coincidence reasoning about the defendant. So, it does not regulate evidence offered to support other circumstantial reasoning in support of the prosecution case.19 does not apply to tendency or coincidence evidence adduced to ‘explain or contradict’, respectively, tendency or coincidence evidence adduced by the defendant.20 The exception for tendency evidence is largely overshadowed by section 110 (which provides for the rebuttal of tendency evidence of the defendant’s good ‘character’),21 but there is no equivalent exception in section 110 for rebuttal of defence coincidence evidence. does not apply to evidence or proceedings that fall within section 94.22 This includes tendency or coincidence reasoning based on evidence of alleged conduct that is the subject of charges in the same proceeding.23 In Ellis’s case, this actually meant that section 101(2) had no application to the eleven burglaries admitted by the trial judge.24

As was the case in civil evidence, distinguishing the different sorts of reasoning is difficult in criminal cases. In Andelman v The Queen [2013] VSCA 25, the prosecution adduced evidence that discrepancies between coins drivers placed in parking meters and coins the defendant (a meter collector) reported collecting from them matched deposits of coins into his personal bank account. When the defence adduced evidence of other deposits of coins into his account that did not coincide with discrepancies in the defendant’s meters, the prosecution responded with evidence that those deposits matched discrepancies in machines serviced by other collectors who had confessed to stealing the coins in concert with the accused. The prosecution’s original evidence of discrepancies concerning the defendant’s meters fell within section 94, as those were all matters in respect of which the defendant 15 Ellis v The Queen [2004] HCA Trans 488, approving R v Ellis [2003] NSWCCA 319; (2003) 58 NSWLR 700, [89]. 16 R v Ellis [2003] NSWCCA 319; (2003) 58 NSWLR 700, [96]. 17 Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461, 483. 18 R v Handy [2002] 2 SCR 908; Criminal Justice Act 2003 (UK), s 101(3); Evidence Act 2006 (NZ), s 43. 19 See Chapter 10: Tendency and Coincidence, [10.2.3]. 20 See s 101 (3) and (4). 21 See [12.4.2] below. 22 See Chapter 10: Tendency and Coincidence, [10.2.3]. 23 Section 94(3). 24 Ellis v The Queen [2004] HCA Trans 488.

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was charged with theft. However, section 94 clearly did not cover the others’ thefts (as the defendant was not charged with complicity in those) and the Court of Appeal held that that evidence was coincidence evidence. Although the Court did not address this point, it would appear that the defence’s evidence (which the prosecution’s evidence clearly was adduced to ‘explain or contradict’) was not itself coincidence evidence. The result was that the prosecution’s evidence about the others’ meters had to satisfy by sections 98 and 101 (and, the Court held, failed to satisfy the former because the prosecution did not give the accused reasonable notice of that evidence).

12.1.4 Tendency and coincidence evidence about sexual offence defendants All the problems of determining the admissibility of bad character evidence—high probative value, high prejudicial effect, common law ghosts and distinguishing between pattern evidence and other sorts of evidence—reach their peak in the case of evidence that rape or child sexual offence defendants may have committed other offences. In such cases, tendency arguments—once a rapist or paedophile, always a rapist or paedophile—are at their most compelling, but prejudice is at its most extreme. According to McHugh J in Pfennig, avoiding prejudice in cases where the jury knew that that the defendant was a convicted child rapist would take a ‘superhuman effort’.25 Evidence law has struggled to manage these concerns in four broad scenarios. The first scenario is where the defendant denies any involvement in an alleged sexual offence, but the prosecution offers evidence that the offence was part of a pattern, inviting tendency or coincidence reasoning that evidence of the defendant’s links to one or more events is evidence of his or her link to all of them. For example, in O’Keefe v The Queen; R v O’Keefe [2009] NSWCCA 121, the prosecution offered evidence of three incidents in separate Sydney bushland bike paths where the offender assaulted women after demanding that they ‘show me your tits’. The NSW Court of Criminal Appeal accepted that the jury could be invited to reason that evidence linking the accused to some of these incidents could support his link to all of them. However, the Court held that this evidence could not be used to reason that the accused may be guilty of a further offence that, although at the same location as one of the others, involved a differently dressed offender, a demand to ‘lift up your top’ and a considerably more violent rape. Howie J observed that the differences in dress, location and behaviour meant that coincidence reasoning was not available and that the differently worded demand meant that the relevant tendency evidence was too general—‘a particular interest in what is the most prominent part of the female anatomy’—and therefore did not have significant probative value. In Pfennig, another general criminal tendency (in that case, the accused’s admission that he had long contemplated kidnapping and raping a boy and had done so on one occasion) only sufficed as evidence of his guilt of murder and rape in relation to a different, missing boy, because Pfennig was the last person to see that boy alive. A second scenario is where the defendant is accused of multiple sexual offences by people he or she knows (and therefore identity isn’t an issue), but where he denies any sexual contact. Such multiple allegations against a known person support a mixed form of coincidence and tendency reasoning: that, given the improbability of multiple false claims against a defendant, the likely explanation for the multiple complaints is that they are the result of a tendency of the defendant to commit sexual offences. The NSW Court of Criminal Appeal has held that, in contrast to cases where identity is disputed, there is no requirement that any alleged pattern of allegations specifically directed at the accused be peculiar to the accused.26 By contrast, in C G L v DPP [2010] VSCA 26; 25 Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461, 483. 26 R v Ford [2009] NSWCCA 306; (2009) 273 ALR 286; BP v R; R v BP [2010] NSWCCA 303.

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(2010) 24 VR 486, Victoria’s first appeal ruling on the uniform evidence legislation, the Court of Appeal held that such evidence cannot satisfy the ‘significant probative value’ requirement for either the tendency or coincidence rules where the common features of the complaints (in that case, grooming behaviour and touching children’s genitals) are merely the common features of that type of crime (in that case, child sexual abuse). The Court observed: As a general rule, the greater the degree of specificity with which the similarities can be identified, the more likely it is that the evidence will be probative of a tendency to act in a distinctive way or to do acts of a distinctive kind. Conversely, the greater the degree of generality, the more difficult it will be to demonstrate that the evidence in question has ‘significant’ probative value and—even more so—to demonstrate that its probative value ‘substantially outweighs’ the very real prejudicial effect of evidence of this kind.

The Tasmanian Court of Criminal Appeal applied this ruling in Tasmania v Martin (No 2) [2011] TASSC 36, where the issue was whether or not the defendant mistakenly believed that a 12-yearold prostitute was actually 18. The Court held that evidence of the defendant’s possession of child pornography was inadmissible because it could only prove that the accused had a sexual interest in young girls, rather than an exclusive interest in them. The Victorian approach does not bar all evidence of sexual tendencies or similarities in multiple complaint cases. Unusual commonalities (in one case, complaints of grooming at a funeral, in a pool and with liquorice, and a banana inserted in the accused’s anus27) will suffice. However, the Court has held that even these commonalities must be ones the accused has chosen (and hence are capable of revealing his or her tendencies), rather than merely being a product of the surrounding circumstances (as in the case of a corrections officer allegedly preying on juvenile detainees, in inevitably similar ways.28) The difficulty is working out what is and isn’t unusual or chosen in the world of sexual offending, a matter the judges seem to assess based on their own experience of such cases. Victorian judges have split on whether either an incestuous tendency or grooming by a pretext of a medical examination are sufficiently unusual (and chosen)29 and have unconvincingly distinguished between a tendency to touch employees’ breasts in the workplace (‘remarkable and unusual’) and to do the same in social settings (‘significantly less unusual’ and ‘very much less remarkable’.)30 In the authors’ view, these attempts to categorise the probative value of different tendencies are as doomed as the defunct common law tests they reprise. Instead, the assessment of evidence of sexual tendencies or coincidences should incorporate (and, in practice, largely turn upon) assessments of the risk of unfair prejudice (especially reasoning prejudice). One common law case that has proven especially resistant to displacement by the uniform evidence law is Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292. In that case, the High Court held that coincidence reasoning cannot be used against a defendant in multiple complaint cases if an alternative explanation—that the multiple complaints are the result of a deliberate conspiracy or unconscious influence among the complainants—is reasonably open. This rule has attracted criticism as an intrusion into the jury’s province (like the similar rule in Pfennig) and also because it rules out coincidence arguments in the common scenario where complainants claim to have been given the courage to go to the police because of the publicity of the earlier complaint (concerns that have led several Australian parliaments to abolish the rule).31 However, Victoria’s Court of Appeal has held that Hoch continues to apply under the uniform evidence law: 27 28 29 30 31

NAM v The Queen [2010] VSCA 95. PNJ v DPP [2010] VSCA 88; (2010) 27 VR 146. CEG v The Queen [2012] VSCA 55; Reeves v The Queen [2013] VSCA 311. GBF v The Queen [2010] VSCA 135. Evidence Act 1977 (Qld), s 132A; Criminal Law Consolidation Act 1935 (SA), s 278(2a); Evidence Act 1906 (WA), s 31A(3).

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[W]here there is a real possibility of contamination—concoction, collusion, unconscious influence and the like—evidence of tendency and coincidence will fall at the threshold, since it will not possess the significant probative value which is necessary to its reception. It will be inadmissible.32

In Murdoch (a Pseudonym) v The Queen [2013] VSCA 272, the Court held that some aspects of multiple complaints against the accused (his rubbing of Vitamin E cream on the complainants’ breasts and telling each to ‘take it to her grave’) would ordinarily satisfy the significant probative value test. However, evidence from a third complainant that the others had pressured her to make a false complaint meant that the two complaints were not admissible as evidence of each other’s correctness. In the authors’ view, while concerns about concoction are understandable (and have led to similar rulings in some other uniform evidence jurisdictions), the Victorian Court’s continuing endorsement of the Hoch test itself is surprising. Victoria’s parliament was the first to legislatively repeal Hoch (a decade before the uniform evidence law was enacted) and its Court of Appeals otherwise considers that credibility is a matter for juries assessing guilt, not trial judges assessing admissibility.33 The better approach to the risk of concoction is that, like other alternative explanations of a coincidence, it must simply be considered as part of any assessment of significant probative value (and unfair prejudice), rather than be subjected to a special rule.34 A third multiple complainant scenario is where the defendant admits to having sex with each complainant, but claims in each case that the complainant consented. The pattern reasoning in such cases is again based on the unlikelihood that multiple consensual partners of the accused would falsely claim that that the accused raped them. However, in Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303, the High Court held that, because consent is a behaviour of the complainants, rather than the accused, the fact that others testified that they did not consent is simply irrelevant to the question of whether or not any particular complainant consented.35 In that case, the Court ruled that complaints of ‘date rapes’ by six separate teenagers would have to be dealt with in six separate trials. In the end, the accused was retried (and convicted) for only the first of the six matters, but also pled guilty to two further (and similar) rapes committed on bail months after the High Court’s judgment.36 Subsequent law reform reports, considering calls for Phillips to be overturned, expressed a hope that the decision could be ameliorated by treating the complainants’ accounts of the accused’s behaviour as tendency evidence about the accused.37 However, although Phillips was later described by Heydon J as ‘one of the most criticised decisions of the High Court of all time’,38 it was reaffirmed by the High Court in Stubley v WA [2011] HCA 7; (2011) 242 CLR 374. In that case, several patients of a psychiatrist claimed to have been manipulated into sex with him. The psychiatrist admitted the sexual conduct, but argued that it was consensual. A majority held that ‘[p]roof of the [accused’s] tendency to engage in grave professional misconduct by manipulating his younger, vulnerable, female patients into having sexual contact with him could not rationally affect the likelihood that [the complainants] did not consent to sexual contact on any occasion charged in the indictment’.

32 33 34 35 36 37

Murdoch (a Pseudonym) v The Queen [2013] VSCA 272, [99]. See the former Crimes Act 1958, s 398A and Chapter 16: Mandatory and Discretionary Exclusions. Compare Evidence Act 2006 (NZ), s 43(3)(e). Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303, [50], [56]. R v Philips (unreported, District Court—Criminal Jurisdiction—Rockhampton, 17 September 2007). Tasmanian Law Reform Institute, Issues Paper 15: Evidence Act 2001 Sections 97, 98 & 101 and Hoch’s case: Admissibility of ‘Tendency’ and ‘Coincidence’ Evidence in Sexual Assault Cases with Multiple Complainants (September, 2009), [6.2.5]; Australian Law Reform Commission, Report 114: Family Violence—A National Legal Response (November 2010). [27.260]. 38 Stubley v WA [2010] HCATrans 269.

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While neither of these decisions was made under the uniform evidence legislation, their reliance on a test of relevance means that they are authoritative throughout Australia. A final, quite different scenario is when there are allegations that the defendant has abused a particular complainant many times. Indeed, a common allegation, especially in familial sexual abuse cases, is that abuse has been routine for years or even decades. Typically, no charges are laid for most of the alleged incidents due to uncertainties in the evidence. In BBH v The Queen [2012] HCA 9; (2012) 245 CLR 499, for example, the complainant alleged that she was abused continuously by her father from the ages of four to fourteen. The prosecution laid charges with respect to only six incidents, as well as a general charge of maintaining a sexual relationship with a child. No charges were laid in relation to a further incident that her brother described (but which she said she did not remember) where he saw his father with his face close to his daughter’s naked buttocks. Instead, the brother’s testimony was left to the jury as evidence of the defendant’s guilt of the remaining charges. A narrow majority of the High Court held that the brother’s evidence was admissible (under the common law Pfennig test) to ‘establish a motive to commit the crimes charged, namely sexual passion’. By contrast, the minority considered that the evidence was too equivocal to even be relevant (other than in hindsight after the defendant was already found guilty of the charged incidents.) In the more common scenario—where the evidence of uncharged acts comes from the complainant—it is clear that section 101(2) could not be satisfied, due to the limited probative value of one witness’s evidence of a pattern to resolve a dispute about a particular claim by that same witness. Rather, courts have proceeded on the basis that this so-called ‘relationship’ evidence is not tendency or coincidence evidence at all, but rather evidence of the defendant’s ‘guilty passion’ (a sexual interest in the complainant that is too specific to be classified as a ‘tendency’) or merely ‘background’ to explain or narrate aspects of the complainant’s account of the alleged abuse (which may be unintelligible without recourse to this history). In a strong challenge to this approach, one judge recently remarked: These distinctions—somewhat fine—are productive of much uncertainty, and therefore much difficulty for trial judges. In a trial for a sexual offence, where many of these concepts may intersect, the task of a trial judge in explaining coherently the use (and non-misuse) of evidence falling within the different categories is an unenviable one, as is the task of a jury of lay persons in comprehending and faithfully applying the required directions. In my opinion, relationship evidence—including context evidence—should be seen for what it is. It is tendency evidence. As such it owes its admissibility to ss 97 and 101 of the Act. Thus, notwithstanding the manner in which distinctions with respect to relationship evidence have been recognised and maintained by courts interstate, a more satisfactory approach would be to treat the admissibility of relationship evidence in the same manner as other tendency evidence. Were such an approach adopted, it might bring some coherence to an otherwise somewhat confused landscape.39

However, the majority of Victoria’s Court of Appeal, noting that the admission of relationship evidence without reference to the tendency ruling is entrenched in both New South Wales and Victoria, held that any reconsideration would have to await a special appellate bench or a new ruling by the High Court. Clarity from the High Court is unlikely in the immediate future; the Court has twice formed seven-judge benches in recent years resolve questions about this category of evidence (at common law) and split 4–3 each time on narrow aspects of the issue.40

39 Murdoch (a Pseudonym) v The Queen [2013] VSCA 272, [92]–[93]. 40 HML v The Queen; SB v The Queen; OAE v The Queen [2008] HCA 16; BBH v R [2012] HCA 9. ; (2012) 245 CLR 499.

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Like other areas of sexual offence law, development of the law of tendency and coincidence evidence about sexual offence defendants is unlikely to be left solely to the judiciary or general principles. A 2010 report by the Australian and New South Wales law reform commissions recommended amending the uniform evidence law to expressly repeal the rule in Hoch’s case.41 A Tasmanian law reform report went further, also recommending amendments to sections 55, 97, 98 and 101 to overrule Phillips and any ‘striking similarities’ test of admissibility in sexual offence cases.42 These reports stopped short of an earlier recommendation by a NSW parliamentary committee that Part 3.6 no longer apply at all to evidence about child sexual offence defendants.43 Such a reform (for all sexual offences) has been in place for decades in parts of the United States.44

12.2 THE DEFENDANT’S CREDIBILITY There has always been one clear exception to evidence law’s general antipathy towards reasoning about people, rather than the events they are involved in: reasoning about people’s credibility. For that reason, section 94(3) exempts evidence that ‘relates only to the credibility of a witness’ from all the rules regulating tendency reasoning; such evidence is instead subject to the rules in Part 3.7 (discussed in Chapter 11: Credibility). This situation is potentially disastrous for criminal defendants if they testify. Such defendants are liable to have evidence of their character—in so far as it bears ‘only’ on their credibility—admitted if it passes the test in section 103. There are no special notice requirements for such evidence, although the prosecution duty of disclosure means that the defendant will be informed about evidence that bears on the defendant’s credibility. The test for such evidence—that ‘the evidence could substantially affect the assessment of the credibility of the’ defendant—is much milder than the test for admissibility in section 101(2). Avoiding any prejudice that would inevitably arise from revealing, for example, that the defendant has prior convictions for fraud or a history of lying would rest on the general discretions in sections 136 and 137. This section discusses the special rules in Part 3.7 to avoid this problem and the exceptions to those rules.

12.2.1 The defendant’s character shield Sections 104 and 108B, following the general lead of statutory reforms introduced a century ago when defendants were first permitted to testify, set out additional exclusionary rules for the admission of credibility evidence about defendants. Their protection is limited to evidence that falls within the difficult definition of credibility evidence set out in section 101A.45 So, they do not regulate evidence that has relevance beyond the defendant’s credibility, such as evidence contradicting the defendant’s account of what happened or evidence of the defendant’s tendency

41 Australian Law Reform Commission, Report 114: Family Violence—A National Legal Response (November 2010) recommendations 27–13. 42 Tasmanian Law Reform Institute, Final Report No. 16: Evidence Act 2001 Sections 97, 98 and 101 and Hoch’s case: Admissibility of ‘Tendency’ and ‘Coincidence’ Evidence in Sexual Assault Cases with Multiple Complainants (February, 2012), recommendations 1, 2, 5 and 6. 43 Standing Committee on Law and Justice, Report on Child Sexual Assault Prosecutions, November 2002, recommendations 14 and 15. 44 See Federal Rules of Evidence, rules 413 and 414. 45 See Chapter 11: Credibility.

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to lie offered in a perjury prosecution. (The latter would, of course, still have to satisfy the rules in Part 3.6.) Section 104 deals with the situation where the defendant testifies and the defendant’s credibility is raised in cross-examination pursuant to section 103. Section 108B deals with the situation where the defendant does not testify but a previous representation of the defendant is admitted (either because it is not hearsay, or because an exception to the hearsay rule, such as the admissions exception, applies), allowing credibility evidence to be called by any party pursuant to section 108B. In both instances, sub-sections of each provision impose nearly identical restrictions, effectively defining the situations where either section 103 or section 108A can be used (sometimes termed ‘gateways’). Sub-section (3) of each provision lifts the restriction on attacks—by the prosecutor, in the case of cross-examination of the accused; by anyone, where the defendant’s previous representations have been admitted—with respect to credibility matters that do not bear directly on the defendant’s character. There are no special barriers in the uniform evidence legislation to admitting prosecution evidence ‘about whether’ the defendant: (a) is biased or has a motive to be untruthful; (b) is, or was, unable to be aware of or recall matters to which his or her evidence relates; (c) has made a prior inconsistent statement.

The first of these options is subject to a High Court common law ruling that bars arguments (and, most likely, evidence) about defendants’ interests in the outcome of the trial (such as their obvious interest in being found not guilty).46 It may, therefore, be limited to evidence that the defendant has some other sort of bias (such as protecting a third party or avoiding a civil claim). The second option is straightforward, while the third requires some care in cases where the defendant hasn’t testified. In Azzi v The Queen [2013] NSWCCA 249, two prior representations by the accused were admitted in a drug matter: his denial to the police that he owned heroin found in his closet and his guilty plea to possessing methamphetamines found in the same closet. The prosecution sought to adduce evidence of a third previous representation: the accused’s earlier lie that the methamphetamine was ‘sugar’, as evidence of the defendant’s credibility. While that lie is consistent with his denial of possessing the heroin and is instead only inconsistent with his later guilty plea to possessing the methamphetamines, the Court of Criminal Appeal nevertheless held that there were no restrictions on that evidence, as the ‘sugar’ lie was ‘about’ the accused’s denial that he possessed the heroin. A quirk of sub-section (3) is that the version in section 104 (which is concerned with crossexaminations of testifying defendants) is limited to cross-examinations by the prosecution. This means that co-defendants will still have to seek leave (and overcome the restraints in section 104(6)) for credibility attacks based on bias, recollection and prior inconsistent statements. This limitation appears to be an error. The equivalent provision in section 108B (covering the situation where the defendant’s previous representations have been admitted) exempts all parties from the need to seek leave for such credibility attacks. In both cases, further evidence can be called supporting or attacking the three sorts of credibility evidence without leave (although, if the defendant testified, further evidence will only be possible if the defendant denied the evidence in cross-examination).47 Neither provision governs the calling of expert evidence about the criminal defendant’s credibility, which is instead governed by section 108C (and, among other requirements, also requires leave).48

46 Robinson v The Queen [1991] HCA 38; (1991) 180 CLR 531. 47 Section 106. 48 See Chapter 7: Opinion.

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12.2.2 Loss of the character shield Subsection (4) sets out the only situation when the prosecution can attack the defendant’s credibility (beyond the safe situations set out in subsection (3)). Attacking the defendant’s credibility by attacking his or her character can only occur if defence evidence has been admitted that: • •

tends to prove that a witness called by the prosecutor has a tendency to be untruthful; and is relevant solely or mainly to the witness’s credibility.

In short, the defence must have successfully introduced evidence attacking the credibility of a prosecution witness. By virtue of section 103, the first attack (by the defendant) will have to have been a substantial one; however, because subsection (4)(b) applies even if the evidence is merely ‘mainly’ relevant to the witness’s credibility, it can also be satisfied by attacks that go beyond credit. In R v El-Azzi [2004] NSWCCA 455, for example, the defence in a drugs case attacked a variety of crown witnesses who had been offered immunity against prosecution, including entering their criminal records into evidence. That opened the way for the prosecution to lead evidence of how the defendant (an ex-police officer) was dismissed from the force (including a conviction for corruption). Subsection (4) is a variation on the century-old compromise reached in the so-called ‘1898 legislation’ (which first allowed defendants to testify) by lowering the defendant’s shield from credibility attacks as a ‘tit-for-tat’ if the defendant attacks another party. Tasmania, alone of the uniform legislation jurisdictions, retained the full 1898 approach in its sections 104(4) and 108B(4), permitting the defendant’s character shield to be lowered if ‘the nature or conduct of the defence involves imputations on the character of the prosecutor or any witness for the prosecution’. By contrast, the remaining jurisdictions narrowed the gateway to only cover attacks on a prosecution witness’s credibility. The tit-for-tat approach was adopted in the uniform evidence law, even though, of two rationales suggested for this approach—that the court should be able to assess the credibility of any credibility attack and that defendants should be discouraged from unjustified attacks—only the second gained (tepid) endorsement from the Australian Law Reform Commission.49 The ‘titfor-tat’ approach has long been criticised for unfairness, because it potentially punishes defendants for defending themselves. As El-Azzi demonstrates, subsection (4) can be triggered by a line of argument that is essential to any competent defence. Under the uniform evidence law (except in Tasmania), this problem is partially ameliorated by subsection (5), which exempts credibility attacks that relate to either: (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.

The first category would cover evidence presenting the defence account of what happened, for example the notorious common law case of Phillips v The Queen [1985] HCA 79; (1985) 159 CLR 45, where a rape defendant lost his character shield because his explanation of why his fingerprint was on the victim’s window involved revealing that she had attempted to purchase a large quantity of cannabis from him. The second category would cover attacks on police witnesses, for example suggesting that the police had fabricated evidence or, as El-Azzi alleged, were biased against the defendant. However, the NSW Court of Criminal Appeal held that neither wing of sub-section (5) exempted El-Azzi’s introduction of the criminal records of the Crown witnesses as part of his defence.

49 Australian Law Reform Commission, Evidence (Interim), Report No 26, Volume 1, [821].

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Sub-section (6) sets out a further tit-for-tat approach applicable to co-defendants who are tried together. It is significantly broader than the gateway for prosecutors, as it is satisfied merely if defence evidence has been admitted that is ‘adverse to’ the co-defendant. The adverse evidence does not have to be credit evidence and there is no equivalent to sub-section (5). So, the gateway may be triggered merely by the defendant’s exculpatory account of the events in question that blames the co-defendant for the crime. Indeed, if the evidence otherwise establishes that one of the defendants must have committed the crime, then sub-section (5) may well be triggered by a mere denial of guilt.50 Clearly, if one co-defendant takes advantage of sub-section (6), then the other co-defendant will be able to do the same. Sub-section (6) therefore means that defendants who engage in a ‘cut-throat’ defence will each have their relevant criminal records exposed, permitting the jury to evaluate and compare (and, perhaps, condemn) the credibility of both defendants. Both gateways are subject to satisfying all the other rules of evidence apart from those in Part 3.6, as well as a special requirement for leave.51

12.3 THE DEFENDANT’S CHARACTER Part 3.8 sets out a small set of exceptions to various general evidence law rules for evidence of the defendant’s character. The Part follows the common law in providing generous exceptions for defendants and (to an extent) co-defendants who wish to make character an issue in a trial, but exposes such defendants to the threat of evidence in rebuttal. It is limited to criminal proceedings.52 To the extent that the evidence is adduced in cross-examination of the defendant, the exceptions in Part 3.8 are subject to a leave requirement in section 112.53

12.3.1 Proving good character Section 110(1) is an exception to four rules—the hearsay rule, opinion rule, tendency rule and credibility rule—for defence evidence to prove that the defendant is ‘a person of good character’. The section thus permits the defence to adduce evidence that the defendant: • • •

•

is said to be a good person, such as a character reference or evidence of a person’s reputation (including remote hearsay); is judged to be a good person, for example by a person (whether an expert or not) who has dealt with or read about the defendant; has done good things or has a good nature (with no requirement to comply with the notice or significant probative value requirements in section 97), for example the defendant’s lack of a criminal record; and is credible in a variety of ways (whether or not the defendant’s credibility has been attacked first, and even if that evidence would not substantially affect the assessment of the defendant’s credibility), for example, occasions when the defendant been honest in the past.

The exception is limited only by the requirement that the evidence prove ‘good character’, thus probably excluding transient or case-specific matters (such as prior statements consistent with the defendant’s trial testimony). As well, such evidence must satisfy the remaining rules of evidence. There is no exception for section 108A’s requirements for credibility evidence about previous 50 51 52 53

See R v Mir [1989] Crim LR 894. See [12.4.2], under the heading ‘Managing trials’. Section 109. See [12.4.2], under the heading ‘Managing trials’.

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representations, for example if the defence argues that the accused’s police statement should be accepted because of previous instances of accurate police statements, or section 98 for coincidence reasoning, for example evidence that a pattern of positive events in the defendant’s life is best explained by the defendant’s virtues or good deeds. Otherwise, section 110(1) is very broad, covering both direct evidence of good character and evidence that proves good character ‘by implication’, as well as evidence of good character in general or ‘in a particular respect’, such as gentleness or generosity, or of good character in particular contexts, such as in the workplace or with children.54 For example, in R v Ceniccola [2010] NSWSC 1554, where the defendant was on trial for allegedly murdering a neighbour over a fencing dispute, section 110(1) covered the admission of a letter from another of the accused’s neighbours describing an amicable settlement of a fencing dispute, even though the letter was hearsay (although, on the facts, it may have been admissible under section 65(8) as the neighbour was ill), contained opinion (that was neither lay nor expert opinion) and was adduced to show the accused’s tendency to not kill people with whom he had fencing disputes (without satisfying either the notice or significant probative value tests in section 97). However, Harrison J excluded two claims in the letter that may also have been covered by section 110(1)—that the accused’s family was honest, caring and ‘never caused anyone’s grief ’ and that the accused ‘never gave me the impression that he was capable of shooting anyone’—on the basis, respectively, of lack of relevance and the risk of unfair prejudice.

12.3.2 Proving lack of good character The generosity of section 110(1) (and any other rules of evidence that permit defendants to give evidence of their good character) carries a significant potential price, at least for defendants whose character is mixed. Sections 110(2) and (3) provide that, if evidence is admitted to prove that the defendant has a good character, then the same four exceptions apply to evidence that the defendant is not of good character. The sense of this rule is clear, as otherwise there is a risk (if the prosecution’s rebuttal evidence cannot satisfy the regular rules of evidence) that the law’s generosity to defendants will leave the court with a misleading view of the defendant. However, there are a number of difficulties. First, at common law, ‘there is no such thing … as putting half your character in issue’55. So, in R v Rihia [2000] VSCA 235, by virtue of the defence adducing evidence that the defendant had never struck his children, the prosecution became entitled to adduce evidence that the defendant had repeatedly physically abused his wife some fifteen years previously. However, the uniform evidence law overrules the common law to an extent, by distinguishing between situations where the defendant has adduced evidence that she or he is ‘generally a person of good character’ and situations where the defendant has led evidence to prove that he or she is ‘a person of good character in a particular respect’. In the latter circumstance, the prosecution is limited to adducing evidence about ‘that respect’ of the defendant’s character.56 The importance of this difference depends on the courts’ willingness to regard particular aspects of a defendant’s character as in some way distinct from more ‘general’ aspects. In Huges (a Pseudonym) v The Queen [2013] VSCA 338, a trial judge ruled that statements by the accused that ‘I’ve never hit my daughter’ and he was not ‘into pornographic movies’ were assertions about his lack of violence towards his daughter (and hence could be rebutted by her evidence of him pushing, kicking and raping her) and his lack of 54 Bishop v The Queen [2013] VSCA 273, [8]. 55 R v Winfield [1939] 4 All ER 164, 165. 56 Section 110(3).

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interest in pornography (and hence could be rebutted by evidence that he accessed and possessed pornography). Second, although the courts require that good character be raised intentionally57 it is possible for the exceptions to be triggered by quite informal or marginal evidence, for example: •

• •

the defendant, who drove his truck into a hotel and caused the deaths of five people, testifying as to his intentions at the time in the following terms: ‘I do not feel like I’d be capable of doing such a thing. You know, for years I’d driven trucks, looked after them as if they were my own. To straight away, you know, half destroy one—it’s completely against me you know’;58 the defendant testifying that she had never been convicted of any offence and that her trial was the first time she had been accused of ‘a dreadful crime’;59 and the defendant, after revealing in cross-examination that he had provided false information about social security, stating on re-examination that he had admitted to the falsehood because he wanted to obey his oath to swear to tell the truth.60

Indeed, the defence may raise good character simply as a by-product of responding to the prosecution’s allegations. Thus, the following evidence was held to raise good character in Eastman v The Queen [1997] FCA 548; (1997) 76 FCR 9: •

•

•

evidence that the defendant was of ‘high standing’ in the public service and had no criminal charges, which the defence claimed was relevant to the likelihood of his reinstatement in the public service (one of the alleged motives for the offence was the defendant’s frustration over his job); the defendant’s testimony that he assaulted his neighbour only after ‘a period of passive resistance’ because he was ‘not a violent person’ (the defendant’s fixation over assault charges arising from this dispute was another alleged motive for the murder); and evidence that, on the night of the alleged murder, the defendant visited a prostitute who testified that ‘he seemed to me in fact to be a gentle sort of person’.

The wording of section 110, requiring that the evidence has been ‘adduced to prove’ good character, arguably excludes the situation where the defence claims are responsive to an allegation from an opposing party.61 In Huges, Victoria’s Court of Appeal held that the accused’s statements about not hitting his daughter and not being into pornography were simply ‘emphatic’ denials of particular allegations of hitting and viewing pornography put by his own counsel (foreshadowing anticipated prosecution arguments) and hence could not trigger the exceptions in sections 110(2) and (3). Finally, the exception permits the rebuttal evidence to be used to prove ‘that the defendant is not … a person of good character’. This may go beyond the common law, which only allowed the evidence to be used to rebut the claim of good character (a distinction that could be lampooned as impossible for a lay juror to understand). However, an alternative argument is that the exceptions to the tendency and credibility rules (defined in the Dictionary as sections 97 and 102) do not exempt the prosecution, at least, from the additional rules protecting defendants from tendency evidence ‘about the defendant’ and from evidence about the defendant’s credibility in

57 58 59 60 61

See PGM v The Queen [2006] NSWCCA 310; (2006) 164 A Crim R 426, [35]. Crabbe v The Queen (1984) 56 ALR 733. Stanoevski v The Queen [2001] HCA 4; (2001) 202 CLR 115. R v El-Kheir [2004] NSWCCA 461. PGM v The Queen [2006] NSWCCA 310; (2006) 164 A Crim R 426, [38].

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sections 101(2) and 104. This would protect the defendant’s character, but also potentially leave the court with a distorted view of the defendant, as the conditions to those sections (notably section 104(4)’s requirement for a defence attack on a prosecution witness) may be difficult or impossible to satisfy. It is doubtful that this literal reading of the sections captures the intent of the drafters. The rebuttal evidence must, in any case, satisfy the remaining rules of evidence. In Huges, Coghlan JA held that the further allegations of violence made by the accused’s daughter could not satisfy the requirement of relevance in a trial where the daughter’s credibility was the central issue. Importantly, where the evidence is to be adduced against the defendant in cross-examination, its admission is subject to a leave requirement, discussed below at [12.4.2], under the heading ‘Managing trials’.

12.3.3 The character of co-defendants A further, much narrower pair of ‘character’ exceptions concerns joint trials. Section 111(1) creates an exception to the hearsay and tendency rules for expert opinion evidence adduced by one criminal defendant about another criminal defendant. The exception reflects the common law decision of Lowery and King v The Queen [1974] AC 85, where the Privy Council held that the common law permitted a psychologist to testify about one defendant’s dominant and sadistic nature in order to allow the jury to compare the psychology of two defendants to a murder charge. It should be noted that defendants already have access to the hearsay exception in section 65(8) and are not subject to section 101(2), so the real effect of section 111(1) is to exempt co-defendants from the first-hand hearsay requirements in Division 2 of Part 3.2 and the notice and significant probative value requirements in section 97. Section 111(2) creates a companion exception for other parties that covers not only the hearsay and tendency rules, but also the opinion rule, thus allowing the prosecution or the co-defendant to adduce expert or non-expert opinions about the defendant’s reputed tendencies. However, the exception is for ‘evidence adduced to prove that the evidence should not be accepted’, so arguably it follows the common law approach of limiting the evidence to rebuttal. Section 110(1) is a much wider exception for defendants, so section 111(2) is probably only important for prosecutors. As was the case for sections 110(2) and (3), the narrow definition of the ‘tendency rule’ may mean that prosecutors must still comply with section 101(2) if they wish to adduce tendency evidence about a defendant. Neither exception covers the credibility rule, so expert evidence about the defendant’s credibility would also have to satisfy the requirements of either section 108C or section 110.

12.4 MANAGING CHARACTER EVIDENCE IN JURY TRIALS The problem raised by character evidence is not merely whether or not it is admissible. Rather, the vast, amorphous, multifaceted nature of the issue poses intense management problems for trial judges in jury trials, including how to: • • •

control what the jury learns about the defendant’s character; ensure that the trial remains focused and fair; and control how the jury reasons about the defendant’s character.

This section outlines each of these problems in turn. The discussion below only provides a brief overview of the growing body of case law, much of which involves procedural issues that are beyond the scope of this text.

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12.4.1 Managing information Character differs from other issues tightly controlled by evidence law in its susceptibility to public dissemination. In comparison, say, to an alleged admission by a defendant or a controversial report by an expert, the issue of character is not localised, private or amenable to close control. Rather, courts rely on a bundle of tools, of varying effectiveness, to control whether or not questions of character reach jurors. First, courts rely on powers and doctrines to control the movement of information about character in society, including: • • •

the law of contempt and injunctions, to bar publication of information about a defendant’s character prior to or during a trial; powers to move or delay trials away from localised pre-trial publicity; and directions and (lately) criminal offences to bar jurors from seeking out information on their own.

All of these approaches are challenged by the modern trend towards widespread dissemination of information, notably on the internet, which exceeds both courts’ jurisdiction and their capacity to police their own rules. Arguments that the continued application of information controls in these circumstances serve only to reduce free speech with no apparent gain have not, so far, swayed Australian courts.62 An alternative approach—to permanently stay trials where jurors’ knowledge of highly prejudicial aspects of the defendants’ character is inevitable—is theoretically open in Australia.63 However, the High Court firmly rejected applying this approach in Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237. In that case, where the internet was replete with accounts, not only of a murder defendant’s prior convictions for two further murders, but also of his earlier rapes and his repeated labelling by the media as a monster, a serial killer and guilty of further murders, including the one charged. In the lower court, one judge characterised this a ‘truly exceptional case’ where a stay was required, but another, while agreeing that the case was extreme, held that ‘that the community cannot afford to acknowledge that the media has the capacity so to render an accused unable to be tried’. The High Court unanimously dismissed the accused’s appeal, relying on ‘the experience and wisdom of the law … that, almost universally, jurors approach their tasks conscientiously’ (which it characterised as a ‘constitutional fact’). A second problem is that jurors may learn of the defendant’s wider character, not because of any attempt to rely upon tendency, coincidence or credibility reasoning, but simply because the evidence before the jury will reveal aspects of the defendant’s character for other reasons. In Dupas, the accused’s prior convictions for murder were inevitably before the jury because the prosecution’s case rested on an alleged confession the accused made to a fellow prisoner while he was in prison for the earlier murders and on identification evidence by witnesses who said they recognised the defendant from media stories about his earlier convictions. It was the latter evidence that led one appellate judge to consider that a stay was required in his case: Having read the entire transcript of the trial, I have the clearest impression that the interrelationship between the applicant’s previous convictions for murder, the mass media publicity which attended them (including, in substance, his identification as the murderer of Miss Halvagis), and significant aspects of the evidence led for the Crown in the trial, made it impossible for the jury to put the pre-trial publicity out of mind. Its task of deciding whether the prosecution had established the applicant’s guilt to the criminal standard had, in my opinion, become an impossible one.64 62 See General Television Corporation v DPP [2008] VSCA 49; (2008) 19 VR 68, [38]. 63 R v Glennon[1992] HCA 16; (1992) 173 CLR 592. 64 R v Dupas (No 3) [2009] VSCA 202; 198 A Crim R 454, [182].

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However, the High Court simply noted: There is nothing remarkable or singular about extensive pre-trial publicity, especially in notorious cases, such as those involving heinous acts. That a trial is conducted against such a background does not of itself render a case extreme, in the sense that the unfair consequences of any prejudice thereby created can never be relieved against by the judge during the course of the trial.65

As this case exemplifies, the problem is not due solely to media coverage, but instead arises because character often plays a central role in criminal investigations. The fact that the police’s suspicions were due to the suspect’s prior crimes may be obvious to the jury through the evidence obtained as a result, for example the questions asked in police interviews or the use of a photoboard or DNA database primarily comprising convicted offenders. Limited doctrines are available to ameliorate these dangers in specific scenarios.66 Finally, there is little that a court can do to stop jurors from speculating about the defendant’s prior convictions. Indeed, it is quite possible that the legal rules restricting the admissibility of such evidence may create more risk of prejudice than they avoid, because jurors may come to suspect that any issue resolved in their absence involves the admissibility of evidence of serious misconduct by the defendant. This possibility is a reason why some defendants choose to allow the jury to be told of their prior convictions.

12.4.2 Managing trials As this chapter explains, there will be many instances where character evidence will fall within exceptions to the main exclusionary rules. However, the avoidance of these exclusionary rules does not mean that the evidence will be admissible and, in particular, that all aspects of the evidence can go before the jury. All character evidence will require careful attention under the discretionary exclusions in Part 3.11.67 While there is some overlap between these tests and section 101(2), a full consideration of the ‘misleading or confusing’ grounds of sections 135 and 136, and the ‘cause or result in undue waste of time’ ground in section 135 will be required. Judges will often face a choice between ensuring that enough detail of character evidence is admitted (to ensure that the jury understands the context) and limiting the detail (to prevent the trial being overwhelmed by facts distant from the events at issue at the trial). This dilemma is especially sharp in child sexual abuse cases where the admissible character evidence may consist of hundreds of past events stretching over a decade or more.68 As well, for evidence that is admitted for a non-tendency purpose—for example, the evidence of Dupas’s previous murders, used to explain the context of eyewitness’s later recognition of him—the balance between probative value and prejudicial effect will have to be considered. The Victorian Court of Appeal ruled in that case that, despite those murders casting doubt on both the identification’s reliability and the jury’s capacity to fairly try to accused, the risk of prejudice could be managed ‘by either controlling or editing’ what the jury was told about those murders ‘or giving appropriate directions’.69 In the case of cross-examinations permitted pursuant to the ‘tit-for-tat’ gateways and the rebuttal gateways in Part 3.8, there is an additional control: a requirement that the trial judge first grant leave for the questions to be asked.70 This test is important procedurally, as it demands that 65 66 67 68 69 70

Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237, [36]. For example, s 90 (see Chapter 8: Admissions) and s 115 (see Chapter 13: Identification). See Chapter 16: Discretionary and Mandatory Exclusions. See Gipp v The Queen [1998] HCA 21; (1998) 194 CLR 106. Dupas v The Queen [2012] VSCA 328; 198 A Crim R 454, [239]–[241]. Sections 104(2), 108B(2) and 112.

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the trial be paused so that the potential consequences of allowing the question can be considered. And it is potentially important substantively, as it may place additional limits on the use of those gateways. Unfortunately, the legislation does not indicate the test to be applied by the trial judge and there are persistent doubts about the scope of the Part 3.8 leave requirement.71 In the common law case of Phillips v The Queen [1985] HCA 79; (1985) 159 CLR 45, the High Court unanimously rejected the view that the discretion should be exercised on the basis that the admission of evidence of the defendant’s other misconduct should be ‘exceptional’ or that leave to cross-examine should be refused when the triggering conduct of the defence was a necessary part of putting the case for innocence. In other words, the discretion is not an opportunity for the trial judge to secondguess the overall policy struck by the above doctrines. Rather, the trial judge’s attention should be directed to matters specific to the evidence at hand. Section 192 lists a number of factors that must always be considered by trial judges before granting leave in any evidence matter. One relevant factor is the extent to which granting leave ‘would be likely to add unduly to … the length of the hearing’.72 In Stanoevski v The Queen [2001] HCA 4; (2001) 202 CLR 115, the prosecution adduced an expert report and a witness suggesting that the defendant had once forged a signature on a form she purported to witness. The admission of that evidence led to a lengthy debate 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.73 Another relevant factor is unfairness to a party.74 This factor may prompt a reconsideration of the common law view stated in Phillips, to the extent that section 104 or section 110 have the result that a defendant, simply by mounting a defence, is exposed to a disproportional character attack. Indeed, in Huges, the Court of Appeal ruled that a further reason why rebuttal evidence should not have been permitted in response to the accused’s assertion that he never hit his daughter was that ‘[f]or the relatively benign evidence of supposed good character to have been met with the grossly prejudicial evidence of the violent rape of his daughter when an eight-year-old, would have been devastating to the defence case, and unfairly so’.75 Questions of the admissibility of character evidence can be so important that their resolution will completely change how the parties prepare for and conduct the case. In particular, the ‘titfor-tat’ and ‘rebuttal’ avenues for admissibility, by their nature, create a dilemma for defendants: whether or not to attack the prosecution or raise good character (and whether or not to testify). In TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124, members of the High Court expressed doubt about the legality or desirability of trial judges issuing ‘advance rulings’ that allow defendants to assess, in advance, the consequences of their conduct, with Gaudron J suggesting that such facilitation of tactical decision-making may impinge on judicial impartiality. The Australian Law Reform Commission disagreed and a new section 192A was inserted, authorising trial judges to give advance rulings on questions of leave and admissibility if the court ‘considers it appropriate to do so’. TKWJ remains authority for its holding that, in general, defendants cannot appeal on the basis of poor tactical decision-making made by their counsel. However, in Huges, Lasry AJA held that the prosecutor had a duty to seek a section 192A ruling early in the trial, rather than waiting until after the accused (who had a habit of making ‘quite emphatic’ denials of allegations against 71 72 73 74 75

See R v El-Azzi [2004] NSWCCA 455. Section 192(2)(a), further discussed in Chapter 20: Procedural Provisions, [20.3]. Stanoevski v The Queen [2001] HCA 4; (2001) 202 CLR 115, [46]. Section 192(2)(b). Huges (a Pseudonym) v The Queen [2013] VSCA 338, [32].

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him) had been examined-in-chief. The prosecution’s failure to do so was another ground for the rebuttal evidence to be excluded as unfairly prejudicial.

12.4.3 Managing reasoning The discussion in this chapter demonstrates that, contrary to both popular belief and numerous judicial remarks, it is not unusual for evidence of the defendant’s other misconduct to be before the jury in criminal proceedings. On top of the avenues available under Parts 3.6, 3.7 and 3.8, there are myriad additional ways that the defendant’s other misconduct can come to the fact-finder’s attention, whether formally admitted in evidence or not, including where: • • • • •

the defendant’s other misconduct is public knowledge; the defendant’s other misconduct can be deduced from events revealed or implicit in the proceedings, for example the fact that the defendant was in prison when the crime occurred; the defendant’s trial is of multiple charges (so that the jury, while reaching its verdict on one charge, will obviously know of the other allegations against the defendant); the defendant adduces the evidence himself or herself (for example, to explain why a false allegation might be made);76 or a witness reveals the other misconduct in a non-responsive answer to a question.

There will be a risk of unfair prejudice to the defendant whenever the fact of the defendant’s other misconduct is known to the jury when reaching a verdict. So, an area of law of growing significance concerns the responsibilities of the court in such trials. One issue is the nature of the directions that trial judges must give to jurors when evidence of the defendant’s other misconduct has been disclosed or admitted. While some have long argued that the admission of such evidence should be exceptional because the risk of prejudice cannot generally be overcome by judicial direction, the High Court has focused on whether the directions given by trial judges were adequate.77 The basic approach is described by King CJ in R v Dolan (1992) 58 SASR 501: In all but the most exceptional cases in which evidence of criminal conduct other than that which is the subject of the charges before the court, is allowed to go before a jury, it is encumbent upon the trial judge to direct the jury as to the use which they are entitled to make of such evidence and, even more importantly in most cases, the uses to which such evidence must not be put. In a case such as the present, it is of the utmost importance that the jury should be clearly directed that the accused can be convicted on any count only if the jury is satisfied that the conduct which has been identified as the subject of that count occurred and that it is not permissible to convict the accused on the basis that, although the conduct so identified has not been proved, at least some conduct alleged by the alleged victim has occurred. The reason for allowing such evidence of other incidents to go before the jury and the uses to which they can put such evidence should be clearly explained to them.78

While this is straightforward, it raises two significant difficulties. First, as the discussion in this chapter has made clear, simply identifying the legitimate and illegitimate uses of evidence of the defendant’s other misconduct is an extremely fraught task for

76 B v The Queen [1992] HCA 68; (1992) 175 CLR 599. 77 See BRS v The Queen [1997] HCA 47; (1997) 191 CLR 275; Gipp v The Queen [1998] HCA 21; (1998) 194 CLR 106; Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1; KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221; (2001) 206 CLR 221; Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593; and HML v The Queen; SB v The Queen; OAE v The Queen [2008] HCA 16; (2008) 235 CLR 334. 78 R v Dolan (1992) 58 SASR 501, 503.

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a trial judge, exceeding even the considerable problem of ascertaining whether such evidence is to be admitted at all. Second, accurately describing the various uses to jurors is a task that would challenge even the most eloquent trial judge. Proposed amendments to Victoria’s Jury Directions Act 2013 would relieve trial judges in that jurisdiction from any obligation to identify illegitimate uses of evidence (except, if the accused asks, a tendency use) and from explaining what jurors should consider when assessing such evidence (beyond identifying legitimate uses, noting that the evidence is only part of the prosecution case and the general need to avoid decisions based on prejudice.)79 The High Court itself has responded to these concerns by declining to add directions on the use of evidence of the defendant’s other misconduct to the list of ‘mandatory’ directions that it has developed in relation to unreliable evidence.80 In particular, the High Court held in KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221 that a warning against tendency uses of evidence is not necessary merely because a defendant faces multiple counts of sexual offences in relation to a single complainant. Rather, warnings are only required where there is a significant possibility that the jury will use the evidence in a forbidden way. This may occur when the evidence of the defendant’s other misconduct is from a source other than the alleged victim of the charged offence or when the evidence of the defendant’s other misconduct is of a very general nature.81 In B v The Queen [1992] HCA 68; (1992) 175 CLR 599, Brennan J observed that, in a trial where the defendant’s other misconduct has been disclosed, the correct observance of other warning requirements was crucial. There is a school of thought that suggests that the defendant’s interests are not well served by detailed directions that focus the jury’s attention on evidence of the defendant’s other misconduct. In BRS v The Queen [1997] HCA 47; (1997) 191 CLR 275, the trial judge chose to make a very brief summary of the evidence in a child sexual assault trial, not even mentioning prosecution evidence from W, a corroborating witness, whose testimony disclosed additional (and similar) sexual misconduct to that alleged by the prosecution. When the defendant appealed to the High Court on the basis that the trial judge should have given a lengthy direction of the type described in Dolan, McHugh J commented as follows: Directions to this and similar effect would in my opinion have been far more damaging to the appellant than the course which the learned trial judge took. The failure of the judge to mention W’s evidence meant that the minds of the jurors were focussed on the conflict between the complainant and the appellant in a context where the jury were led to believe that the evidence of the appellant’s good character was all one way. Once W’s evidence was introduced into the summing up, the focus of the summing up would have shifted from a conflict between the appellant and the complainant to a conflict between the appellant and W on the one hand and a conflict between the appellant and the complainant on the other. Moreover, logically, the jury would have had to determine the issue of character before they could resolve the conflict between the appellant and the complainant … The course taken by the trial judge, on the other hand, gave the appellant a much better chance of acquittal.

Nonetheless, McHugh J still felt that the defendant’s trial had miscarried because the trial judge failed to give the full direction that ‘would have avoided the risk of use of the forbidden chain of reasoning’. This ruling is a reminder that the law of criminal evidence is about the promotion of accurate fact-finding (or, at least, the legitimacy of the courts), rather than the best interests of criminal defendants. 79 Jury Directions Amendment Bill 2014, proposing a new Part 7 of the Jury Directions Act 2013. 80 See Chapter 19: Warnings and Information. 81 See BRS v The Queen [1997] HCA 47; (1997) 191 CLR 275; KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221.

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SUMMARY Although evidence law is opposed in principle to the admission of evidence of the defendant’s character, such evidence is nonetheless admissible on a variety of grounds. Such evidence may be admissible: • •

• •

if the probative value of prosecution tendency or coincidence evidence about the defendant substantially outweighs its prejudicial effect; if the defendant testifies and credibility evidence about the defendant is adduced either: – about the defendant’s bias, reliability or prior inconsistent statements; – by the prosecution, with trial judge’s leave, if the defence has attacked a prosecution witness’s credibility; or – by a co-accused, with the trial judge’s leave, if the defence has given evidence adverse to a co-defendant; in good character evidence adduced by the defence; and in evidence rebutting such evidence, with the trial judge’s leave.

Where character evidence is admitted or otherwise becomes known to the jury, the trial judge: • • •

may use a variety of procedures to minimise the transfer of information about the defendant’s character; may issue an advance ruling on questions of admissibility, procedure or leave to minimise unfairness to defendants; and may be required to direct the jury on the legitimate and illegitimate uses of the evidence.

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NO

12_GAN_UFE_21054_TXT_SI.indd 261 YES Has the tendency rule been complied with?

YES

Has the coincidence rule been complied with?

NO

s 101 Does the probative value of the evidence substantially outweigh the risk of unfair prejudice to the defendant?

YES

Is the evidence being used to prove that the defendant has a tendency to act in a particular way or have a particular state of mind?

Is the evidence being used to prove that the defendant did a particular act or had a particular state of mind, due to the improbability of these events occurring coincidentally?

YES

YES

NO

s 97 Is the evidence of the character, reputation, conduct or tendency of the defendant?

YES

s 98 Is the evidence that two or more events occurred?

NO

Is the character, reputation, conduct or tendency of the defendant a fact in issue in the proceeding?

Does the proceeding relate to bail or sentencing?

NO

YES

ss 104 and 108B Is the evidence that the defendant is biased or has a motive to be untruthful?

NO

YES

NO

NO

YES

YES

NO

NO

YES

NO

Has the opinion rule been complied with?

s 110 Has other evidence been admitted to prove that the defendant is generally a person of good character?

NO

Has the hearsay rule been complied with?

YES

NO

Has the credibility rule been complied with?

YES

Is the evidence that the defendant has made a prior inconsistent statement?

THE ADMISSIBILITY OF THE EVIDENCE IS NOT AFFECTED BY PARTS 3.2, 3.3, 3.6, 3.7 AND 3.8

YES

Is the evidence that the defendant is unable to be aware of or recall matters?

NO

YES

NO

YES

YES

NO

YES

NO

Has other evidence been admitted to prove that the defendant is a person of good character in a particular respect?

YES

Is the evidence that the defendant is not of good character in that respect?

YES

s 112 Is the evidence adduced in cross-examination of the defendant?

YES

Has the trial judge given leave to permit that crossexamination?

Has the trial judge given leave to admit the evidence?

NO

Is that evidence of conduct relating to the events being prosecuted or the investigation of the offence?

Is that evidence mainly relevant to that witness’s credibility?

Has defence evidence been admitted to prove that a prosecution witness has a tendency to be untruthful?

NO

NO

NO

NO

YES

YES

NO

THE EVIDENCE IS INADMISSIBLE

FIGURE 12.1 PROSECUTION CHARACTER EVIDENCE

s 94 Is the evidence credibility evidence about the defendant?

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NO

YES

12_GAN_UFE_21054_TXT_SI.indd 262 Has the tendency rule been complied with?

Has the coincidence rule been complied with? YES

NO

NO

YES

NO

NO

YES

YES

Has the opinion rule been complied with?

YES

THE ADMISSIBILITY OF THE EVIDENCE IS NOT AFFECTED BY PARTS 3.2, 3.3, 3.6, 3.7 AND 3.8

YES

Is the evidence that the defendant is unable to be aware of or recall matters?

Has the hearsay rule been complied with?

NO

s 111 Is the evidence an expert opinion about the defendant’s character adduced by a co-defendant?

NO

YES

YES

YES

Is the evidence being used to prove that the defendant has a tendency to act in a particular way or have a particular state of mind?

Is the evidence being used to prove that the defendant did a particular act or had a particular state of mind, due to the improbability of these events occurring coincidentally?

NO

YES

NO

s 97 Is the evidence of the character, reputation, conduct or tendencies of the defendant?

YES

s 98 Is the evidence that two or more events occurred?

NO

Is the defendant’s character, reputation, conduct or tendency a fact in issue in the proceeding?

YES

ss 104 and 108B Is the evidence that the defendant is biased or has a motive to be untruthful?

Does the proceeding relate to bail or sentencing?

NO

s 94 Is the evidence credibility evidence about the defendant?

NO

NO

NO

Has other evidence been admitted to prove that the defendant is generally a person of good character?

NO

s 110 Is the evidence that the defendant is of good character?

NO

YES

Has the credibility rule been complied with?

NO

s 104 Is the defendant testifying?

YES

Has a previous representation of the defendant been admitted?

YES

Is the evidence that the defendant has made a prior inconsistent statement?

NO

YES

YES

YES

YES

YES

NO

Has other evidence been admitted to prove that the defendant is a person of good character in a particular respect?

YES

Is the evidence that the defendant is not of good character in that respect?

YES

s 112 Is the evidence adduced in cross-examination of the defendant?

YES

Has the trial judge given leave to permit that crossexamination?

Has the trial judge given leave to admit the evidence?

YES

Has evidence been admitted of the defendant saying something adverse about the co-defendant?

NO

NO

NO

NO

NO

FIGURE 12.2 DEFENCE CHARACTER EVIDENCE 262 PART 2 ADMISSIBILITY

THE EVIDENCE IS INADMISSIBLE

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263

IDENTIFICATION

13

INTRODUCTION Part 3.9 deals with ‘identification evidence’. Like Part 3.8, it is solely concerned with criminal proceedings (section 113)1 and, indeed, with eyewitness identifications of criminal defendants. Its rationale is to prevent miscarriages of justice due to witnesses’ misidentifying someone as a criminal. Identification evidence is often both hearsay and opinion evidence and may also be credibility evidence (see Chapter 5: The Hearsay Rule, Chapter 7: Opinion and Chapter 11: Credibility). It is also a common subject of scrutiny under the regimes for discretionary exclusion and warnings (see Chapter 16: Discretionary and Mandatory Exclusions and Chapter 19: Warnings and Information). Part 3.9 does not detract from the former rules, but supersedes the latter ones in some respects. This chapter’s discussion first addresses how identification evidence is defined and regulated. It then considers the more specific procedural rules for visual identification evidence.

13.1 IDENTIFICATION EVIDENCE This part examines Part 3.9’s definition of ‘identification evidence’, identifies the dangers of such evidence and analyses the primary remedy for those dangers: a mandatory warning.

13.1.1 Definition of ‘identification evidence’ In many criminal trials, the defendant does not dispute that a crime occurred but denies that he or she is the culprit. In such trials, the prosecution will need to adduce evidence that can support inferences that the defendant is the perpetrator (or alleged perpetrator). Part 3.9 is concerned with a subset of such evidence. The Dictionary definition of ‘identification evidence’ is, unfortunately, very convoluted. At the definition’s core is the concept of ‘an assertion … to the effect that someone was, or resembles (visually, aurally or otherwise)’ someone else. This covers assertions of: • • • •

recognition, for example, ‘I just saw Hillary Clinton rob a bank!’, ‘I just saw my mum rob a bank!’; identity, for example, ‘That’s the robber, over there!’; resemblance, for example, ‘That looks a lot like her!’, ‘That looks a bit like her!’; and non-visual recognition, identification or resemblance, for example, ‘That sounds like Hillary Clinton!, ‘That smells a lot like my mum!’, ‘That feels a bit like the robber!’.

1 This section is omitted in the Evidence Act 2001 (Tas), but the definition of ‘identification evidence’ and the terms of s 116 still confine s 116 largely, if not entirely, to criminal proceedings,

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But the definition does not cover mere descriptions of someone else’s characteristics (even if they happen to fit the defendant), such as ‘the person I saw had red hair’ or ‘she had a low voice’. In Aouad and El-Zeyat v The Queen [2011] NSWCCA 61, the Court of Criminal Appeal held that a ‘comfit’ identification (that is a picture created by a trained police artist based on a witness’s description of an offender) was not ‘identification evidence’. In Trudgett v The Queen [2008] NSWCCA 62; (2008) 70 NSWLR 696, a rape victim gave police a description of what her rapist looked like and also said that he was introduced to her at a party as ‘Adam’ and was known to a number of people at the party. Spigelman CJ held that none of these things were ‘identification evidence’ under Part 3.9. However, as Basten JA later observed, if the victim later asserted or testified that ‘Adam’ was the defendant or that he had some of the characteristics in her earlier description (as opposed to leaving the jury to make the link itself by observing the defendant), then that may well be identification evidence.2 Crucially, not all assertions of identification, recognition or resemblance are regulated by Part 3.9. Three aspects of the definition of ‘identification’ narrow down which assertions count. First, the assertion must be that ‘the defendant’ is or resembles someone. So, the definition does not extend to assertions about: • • • • •

people other than the defendant, for example, ‘The second robber looked like the defendant’s lover!’, ‘I saw the murder victim near the defendant’s house!’; unidentified people, for example, ‘I saw a woman run into the bank and then the same woman ran out ten minutes later!’; pictures, for example, ‘That picture the police artist drew looks just like the robber!’; animals, for example, ‘I saw the defendant’s dog!’; and things, for example, ‘I saw the defendant’s car!’.

A further notable exclusion from the definition is ‘negative’ identification evidence, for example ‘the robber definitely was not the defendant’ or ‘I did not see anyone who resembled the defendant at the party’ (for instance where the defendant’s alibi was a party). Second, the ‘person’ whom the defendant supposedly looks like must be someone: …who was present at or near a place where: (i) the offence for which the defendant is being prosecuted was committed; or (ii) an act connected to that offence was done. at or about the time at which the offence was committed or the act was done.

This person whom the defendant looks like may be either the undoubted perpetrator of the crime or simply someone who was possibly the perpetrator, given her presence close to the place and time of the crime (for example, running away from it) or at a place or time when a ‘connected’ act happened (such as the purchase or disposal of a getaway car). The meaning of ‘connected act’ is unclear but presumably broad, for example identification of the defendant as a person who made admissions or who spoke of a motive to commit the crime. However, the definition does not seem to extend to identifications of the defendant as the perpetrator of other misconduct (for example, past crimes being used to support tendency reasoning). Third, the assertion must be ‘based wholly or partly on what the person making the assertion saw, heard or otherwise perceived at that place or time’. The most important implication of this requirement is that the identifying witness must be an ‘eyewitness’, actually present at the scene in question at the relevant time. So, the definition does not cover: •

an assertion that the defendant is or resembles a description given by someone else, for example, ‘The defendant’s the only woman in town with a six-fingered hand!’;

2 Walford v DPP (NSW) [2012] NSWCA 290, [19].

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• •

an assertion that the defendant is or resembles someone in a recording of the crime;3 and an assertion by a lab worker analysing physical evidence connected with the crime scene, for example ‘The offender’s DNA matches the defendant’s’.4

However, the term ‘wholly or partly’ leaves open the possibility that an assertion may incorporate information the witness gained elsewhere, for example ‘The bank robber talked a lot like the creepy flatmate my sister once told me about’. If the assertion fits the definition, then the definition of ‘identification evidence’ covers both the assertion and ‘a report (whether oral or in writing) of such an assertion’, including: • •

•

a witness making such an assertion in court (for example. he is asked to identify a person he has testified about and points at the defendant);5 a written document recording someone’s out-of-court assertion (for example, an official report about an identification parade, noting that the witness picked the defendant out of the line-up); and testimony by someone who witnessed an out-of-court assertion (for example, a police officer or the eyewitness herself describing picking the defendant out of a photo array).

The definition curiously omits photos or videos of an out-of-court identification (for example, a digital recording of the eyewitness picking a suspect out of a line-up), even though such recordings are mandatory in some jurisdictions.6 With the sole exception of an in-court (or ‘dock’) identification, all instances of ‘identification evidence’ (as well as many other identifications not covered by that term) will be evidence of previous representations and hence within the scope of the hearsay rule. In R v Barbaro & Rovere [2000] NSWCCA 192; (2000) 112 A Crim R 551, the NSW Court of Criminal Appeal commented: There is no reason why the witnesses themselves could not testify to the circumstances of their individual acts of identification. That would amount to original evidence of their own states of mind and the evidence would merely be an expression of it. To exclude such evidence would invest an unwarranted element of artificiality into a trial.

This pragmatic approach unfortunately relies entirely on common law notions and conflates several sorts of identification evidence. It is clear that an identifying witness’s evidence about what they saw and remember (for example, ‘I remember seeing a picture on the last page and realised that it was the woman who robbed me’) is not hearsay because such evidence does not involve any out-of-court representations. However, the situation is different where a witness testifies about ‘acts of identification’ that occurred outside the court room (for example, ‘I remember pointing at number 30 and yelling out “That’s the woman who robbed me!”’). Such an act or assertion is clearly a previous representation. Under the uniform evidence legislation, the hearsay rule would not prevent any witness (whether the identifying witness or a third party) from giving evidence of out-of-court act or assertion of identity for the non-hearsay purpose of allowing the court to draw an inference about the reliability of a later identification by the same person (such as an in-court identification). However, Part 3.7 (which the Court of Criminal Appeal did not address) would bar that use (that is to ‘bolster’ the credibility of an identification witness) unless an exception applied. If 3 For example, Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650. 4 Query, though, whether the definition might cover analyses performed at the crime scene, for example an automated hand-held DNA profiling device. 5 Walford v DPP (NSW) [2012] NSWCA 290, [14]. 6 Crimes Act 1914 (Cth), s 3ZM(6)(l); Defence Force Discipline Act 1982 (Cth), s 101N(5)(a); Crimes Act 1900 (ACT), s 235(6)(l),(m). See also Evidence Act 1929 (SA), s 34AB(2)(a)(i).

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the later identification is made in court, then the only relevant exception is section 108, which allows the out-of-court identification to be adduced as a prior consistent statement either during the re-examination of the identifying witness (if the in-court identification is attacked in crossexamination) or in any evidence (if it is or will be suggested that the in-court identification was fabricated or ‘re-constructed’). If an exception to Part 3.7 is available, then section 60 will allow the out-of-court representation to be used for its hearsay purpose. In Barbaro, the identifying witness had (without objection) testified that he had earlier remarked that two photos on a photoboard (both of the defendant) looked either ‘familiar’ or ‘a bit like’ a drug trafficker he had dealt with. Under cross-examination, he admitted that he had actually said that the photos were ‘very similar to’ and ‘definitely’ that trafficker. On appeal, the Court of Criminal Appeal rejected prosecution arguments that the latter remarks were admissible for their hearsay use under either section 66(2)’s ‘fresh in the memory exception’ or section 66A’s contemporaneous state of mind exception because ‘the statement by the witness, although in one sense a current state of mind, is in another an expression of identity with a mental image of something that has been seen on a previous occasion’. Despite this, out-of-court identifications will still be admissible for their hearsay use in a variety of circumstances. In Aouad and El-Zeyat v The Queen [2011] NSWCCA 61, the Court of Criminal Appeal held that a comfit drawing made four months after the offence (and out-of-court assertions by an eyewitness that the drawings resembled the offender), while within the scope of the hearsay rule, was nevertheless admissible under section 66(2) as ‘fresh’ in the identifier’s memory, because it was merely a modification of an earlier comfit made on the day of the offence. In Barbaro itself, a combination of section 108 and section 60 would seem to have been available, but the prosecution was barred from raising section 60 for the first time on appeal because the defendant had no opportunity to ask the trial judge to apply section 136 to limit the evidence to its credibility use. If the identifying witness is unavailable at the trial, then one of the gateways in section 65(2)’s hearsay exception may be available or, failing that, a combination of section 108A and section 60 will likely suffice. Depending on the witness’s familiarity with the defendant, an assertion of identity or resemblance may also be characterised as opinion evidence.7 However, the evidence will typically fall within the lay opinion exception in section 78, as making the claim of identity or resemblance will most likely be necessary for a witness to communicate a memory of the offender’s appearance.8

13.1.2 The dangers of identification evidence The dangers of misidentification are exemplified by the cause célèbre of Adolph Beck, who was accused of serial fraud at the turn of the last century.9 His conviction and seven-year sentence in 1896 were based on identifications by eleven of his victims. In prison, he was treated as a recidivist due to a police officer’s claim that he had personally arrested Beck for a similar fraud two decades earlier. After his release from prison, he was convicted of further frauds based on another five victim identifications. Fortuitously, prior to his sentencing for those additional offences, the real fraudster—who confessed to and was identified as the man responsible for all the frauds—was arrested. Beyond a superficial resemblance, he looked nothing like Beck.

7 See Kirby J’s judgment in Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650. 8 See Chapter 7: Opinion, [7.2.1]. 9 See E Watson, Adolph Beck (Notable British Trials), Hodge & Co, London, 1924.

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How can so many identifications be so wrong? As Evatt and McTiernan JJ pointed out in Craig  v The Queen [1933] HCA 41; (1933) 49 CLR 429, an ‘assertion’ of identification actually consists of multiple assertions: An honest witness who says ‘The prisoner is the man who drove the car’, whilst appearing to affirm a simple, clear and impressive proposition, is really asserting: (1) that he observed the driver, (2) that the observation became impressed upon his mind, (3) that he still retains the original impression, (4) that such impression has not been affected, altered, or replaced by published portraits of the prisoner, and (5) that the resemblance between the original impression and the prisoner is sufficient to base a judgement, not of resemblance, but of identity.10

Each of these five assertions could be mistaken, providing a variety of reasons why the final assertion of identity may be wrong. The original observation may, for example, have been made in poor conditions: the witness might only have had a momentary glimpse of the person’s face, the face might have been poorly lit, the person might have been at a great distance from the witness, or the witness may not have been paying proper attention. Indeed, unless it was immediately obvious that the person seen by the witness was the perpetrator of a crime, there may have been no particular reason for the witness to have retained the impression of that observation. The significance of what the witness saw may only have become apparent later, after the impression had already faded. However, while these scenarios are common, they do not explain the Beck case, where each of the victims spent a number of hours with the perpetrator in a relaxed setting. Nor do they particularly distinguish identification evidence from any other sort of eyewitness testimony. Rather, it is the final three assertions that best explain what went wrong in the Beck case. Beck was first identified by chance in the street by one of the fraud victims. He responded by making panicked complaints to a police officer, unwittingly causing the victim to become more certain that he was the fraudster. Flawed identification procedures (described below at [13.2], under the heading ‘Identification procedures’) eventually passed on the first victim’s mistake to all the others, including the police officer. What makes this species of mistake so dangerous is that witnesses infected by it appear more, rather than less, credible. In Beck’s case, witnesses who expressed doubts about Beck’s identity—and, indeed, the first witness called to identify Beck when he was re-arrested for his supposed post-release return to crime and who said that it was not him— were ignored in favour of the more confident witnesses who swore that they had no doubt (until, of course, they were confronted with the real culprit). Testimony from psychologists about the dangers of misidentification have traditionally been rejected in Australia as a breach of the common law’s common knowledge rule and (under the uniform evidence legislation, where that rule has been abolished, as an ‘undue waste of time’ under section 135(c)).11 In Dupas v The Queen [2012] VSCA 328, Victoria’s Court of Appeal observed that such evidence must satisfy section 108C, an exception to the credibility rule for expert opinions, which requires not only that the expertise satisfy section 79’s requirements for such opinions, but also that the evidence ‘substantially affect’ the assessment of a witness’s credibility and that the court gives leave. In that case, where the relevant eyewitnesses had only identified the defendant after being exposed to highly prejudicial media articles about him, Hollingworth J, having ‘regard to the specific and rather unusual facts of this case’, permitted a psychologist to testify about the dangers such exposure posed in general and in particular hypothetical scenarios. She rejected a prosecution submission (raising section 135) that his expert evidence would ‘prejudice’ the 10 Craig v The Queen [1933] HCA 41; (1933) 49 CLR 429, 446. 11 Smith v The Queen (1990) 64 ALJR 588 ; R v Smith [2000] NSWCCA 388; (2000) 116 A Crim R 1.

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prosecution if the jury gave it too much weight or might confuse the jury’s understanding of the trial judge’s warning about the dangers of misidentification. However, the Court of Appeal upheld a further ruling she made barring the psychologist from commenting on the actual identifications in the proceeding, because ‘the necessary foundation did not exist for him to extrapolate from the research to the circumstances of each identification (about which he was not fully informed) or to the individual witnesses (about whom he knew very little)’. Neither the trial judge nor the Court of Appeal addressed whether this specific evidence would nevertheless have been ‘substantially’ based on the psychologist’s research. In an earlier ACT decision, where the same psychologist commented on a particular identification and photoboard without objection, Gray J observed that he ‘found his evidence helpful’ and ultimately acquitted the defendant on the basis that the otherwise impressive identification was ‘not so overwhelmingly strong’ as to overcome an alibi from the accused’s family.12

13.1.3 Mandatory warning The primary response of Part 3.9 to the general dangers of identification evidence is a warning. Section 116(1) provides that: 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 provision goes beyond the general warning regime in section 165.13 It is required whether or not the defendant requests it and its substance refers to the ‘special need for caution’ (rather than the risk of ‘unreliability’), although no particular form of words is necessary.14 Under section 165, ‘identification evidence’ is listed as one of the categories of evidence generally attracting an unreliability warning and that section also applies to unreliable evidence of identity that falls outside the Dictionary definition.15 In Victoria, a proposed replacement for section 116 in that state’s Jury Directions Act 2013 applies to a wider range of identification evidence (including assertions about non-defendants, non-offenders, non-people and non-identification), but the direction must generally be requested by either the prosecution or the defence.16 Section 116 owes much to the common law decision of the High Court in Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555, which mandated a direction on identification evidence in the following terms: Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed. The terms of the warning need not follow any particular formula. But it must be cogent and effective. It must be appropriate to the circumstances of the case. Consequently, the jury must be instructed ‘as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case’. A warning in general terms is insufficient. The attention of the jury ‘should be drawn to any weaknesses in the identification evidence’. Reference to counsel’s arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge’s office behind it. It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence.17

12 13 14 15 16 17

R v Forbes [2009] ACTSC 1. See Chapter 19: Warnings and Information. Section 116(2). See R v Rose [2002] NSWCCA 455, [291]. Jury Directions Amendment Bill 2014, proposing to insert a new Part 9 into the Jury Directions Act 2013. Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555, 561–2.

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Section 116 goes further than the common law, though, in that it is not limited to identification evidence that is a ‘significant part of the proof of guilt of an offence’ and covers assertions of ‘resemblance’, as well as identity. However, the required direction in New Zealand’s Evidence Act 2006 and the proposed requirement in Victoria’s Jury Directions Act 2013 go further still in specifying that the jury must be told that a witness may be honest, convincing and still mistaken, that multiple witnesses may still be mistaken and that such mistakes have caused miscarriages of justice, all lessons exemplified by the Adolph Beck case. In Fukofuka v The Queen [2013] NZSC 77, New Zealand’s Supreme Court held that merely speaking in generalities about such risks will not suffice; rather, specific examples should be given of both past miscarriages of justice due to misidentification and of the particular risks posed by the identification in dispute at the trial. In that case, the Court held that the trial judge should have emphasised how the reliability of a witness’s photoboard identification may have been affected by its timing—five months after the offence and a week after she recognised the offender at her college. In the authors’ view, section 116(1)(b)’s terse language nevertheless requires a similarly detailed direction. Section 116’s mandatory terms have proved to be problematic when combined with the breadth of the definition of ‘identification evidence’, which covers any testimony describing the defendant’s presence at a crime (or related) scene, including, for example, by people who personally know the defendant, such as a victim of the defendant’s domestic violence. Clearly, such circumstances will demand some modification of the terms of the warning. In Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1, the majority ameliorated this problem to an extent by holding that it would be ‘absurd’ to regard section 116 as mandating a direction on identification in cases where the issue of identity is not disputed. The majority held that no direction was required in a case where the defendant—after being identified by a victim from a book of photos—admitted to being in the company of a group who eventually assaulted the victim, although insisting that he left before the assault. Callinan J accepted the majority’s reading down of section 116 but dissented on the basis that there was a dispute about the identity of members of the group at the time of the crime. Unfortunately, the recent round of law reform did not include an express amendment to section 116 to the effect of Dhanhoa, as the Australian Law Reform Commission feared that a change may complicate interpretation and preclude similar non-absurd readings of other inappropriately drafted provisions.18 By contrast, Victoria’s proposed replacement for section 116 need not be given by the trial judge if a matter is not in issue or ‘there are good reasons for not doing so’.19

13.2 IDENTIFICATION PROCEDURES The lessons of Beck and other miscarriages of justice due to misidentification go far beyond the mere need for jurors to recognise a ‘special need for caution’. Rather, they point to broader flaws in the pre-trial investigative process: avoidable errors that greatly increase the risk of error and reduce the chance of detecting it. Beck’s wrongful conviction was less the fault of the fraud victims and the jury than of various biases in London’s criminal justice institutions. These included the police’s eager facilitation of the identification of Beck by each of the fraudster’s victims, the prosecution’s efforts to stymie Beck’s counterarguments (notably by hurriedly dropping the allegations of a link to the earlier frauds when Beck raised an alibi), the Court’s own narrow focus (in barring Beck from raising

18 Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005) [13.91]. 19 Jury Directions Act 2013 (Vic), ss 13(a), 14.

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the alibi himself, on the basis of the ban on ‘similar fact’ evidence) and the defensive pose of the executive, who responded to definitive proof that Beck was not the earlier fraudster—the latter but not the former was circumcised—by simply cancelling Beck’s recidivist label but not otherwise reviewing his conviction. One remarkable instance of tunnel-vision peculiar to this case was that the presiding court officer at Beck’s first trial had prosecuted the real fraudster at his earlier trial! The publicity given to Beck’s case is said to have prompted the creation of courts of criminal appeal. The English government responded to later failings of the investigative process by promulgating ‘codes of practice’ to regulate a variety of investigative acts.20 Code D, on identification procedures, has gone through five editions in two decades and now sets out a hierarchy of preferred identification techniques in various scenarios and detailed ‘notes for guidance’ on how they should be performed. New Zealand’s more recent Evidence Act 2006 subjects all visual identification evidence to a reliability test, whose stringency varies according to whether or not a formal procedure was used or whether there were good reasons not to use it.21 By contrast, Part 3.9, fixed in difficult-to-alter legislation and unchanged since 1995, takes a much narrower and more convoluted approach, focusing only on two particular identification procedures. It is presumably for this reason that sections 114 and 115 are omitted completely from Tasmania’s version of the uniform evidence law, leaving questions about the reliability of particular identification procedures to be dealt with by the general discretions in Part 3.11, discussed at [13.2.3] under the heading ‘Discretionary exclusion’. This part describes the two new sets of rules in Part 3.9: a requirement for identification parades in some circumstances and a bar on picture identification evidence in other circumstances. It concludes by looking at the prospects for discretionary exclusion of flawed identification evidence that is admitted under these two rules.

13.2.1 Identification parades Section 114 sets out a general rule that ‘visual identification evidence’ adduced by the prosecution is inadmissible unless the identification was preceded by an ‘identification parade that included the defendant’. ‘Visual identification evidence’ is a subset of ‘identification evidence’. To be ‘visual’, the identification must be ‘based wholly or partly on what a person saw’. So, there is no requirement for identification parades for aural or other sensory identifications, or for assertions that fall outside of the bounds of the definition discussed at [13.1.1], under the heading of ‘Definition of “identification evidence”’. The function of an identification parade is to reduce the risk that the witness will mistake resemblance for identity. It can achieve this if the suspect is placed among a group of non-suspects of sufficiently similar appearance to the suspect. If the witness cannot accurately identify the perpetrator, then she will either recognise that fact when viewing the parade of lookalikes or—if she mistakenly persists—will most likely unwittingly reveal her error by picking a non-suspect. On the other hand, if the witness does manage to pick the suspect, then that is powerful—though by no means infallible—evidence that the suspect is the offender. Identification parades are only useful if the suspect does not stand out in some way. For example, the parades in Beck’s case consisted of people who lacked Beck’s (and the real fraudster’s) moustache and grey hair, thus explaining why so many victims wrongly but consistently chose Beck. Section 114(2) partially responds to this problem by insisting that the witness not be ‘intentionally influenced to identify the defendant’. This rule does not apply if the police officers 20 Issued under the Police and Criminal Evidence Act 1984 (UK). 21 Evidence Act 2006 (NZ), s 45.

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organising the parade accidentally, negligently or unintentionally influenced the witness, for example because resources or error meant that the other participants looked too dissimilar to the suspect. Federal and ACT statutes imposes more protective requirements—including that ‘[a]n identification parade must be arranged and conducted in a manner that will not unfairly prejudice the suspect’ and specific requirements as to the number and appearance of the members of the parade and, where practicable, a bar on the parade being conducted by police with knowledge of the investigation, and a bar on likely suggestion that a member of a parade is a suspect—but a breach of those requirements only triggers the discretion to exclude illegally obtained evidence, rather than mandatory exclusion.22 Section 114’s exclusionary rule is subject to three overlapping exceptions. The first is where the defendant refuses to participate in a parade23 or where the defendant wants a lawyer present but it is not practicable to organise one.24 The defendant’s participation is essential for a parade (unless it is somehow conducted covertly), because the parade will not be reliable if the defendant acts oddly. It is not clear whether the fact of the defendant’s nonparticipation can be revealed to the jury (outside of scenarios where the defence gives the false impression that the police wrongly failed to do a parade). Federal and ACT statutes provide that a defendant must be warned that evidence of a refusal may be given in later proceedings ‘for the purpose of explaining why an identification parade was not held’, but each provision disclaims any impact on the actual admissibility of any refusal.25 Arguably, defendants have a right not to participate in a procedure that may produce evidence against them. While at common law (which is expressly preserved in the ACT’s provision) such evidence may be barred under a variation of the right to silence, the terms of the uniform evidence law’s silence provision26 will not always cover this scenario. Section 90’s ‘fairness discretion’ may fill the gap, to the extent that a refusal is treated as an ‘admission’. See Chapter 8: Admissions. The second exception is where it is ‘unreasonable’ to have held a parade. This exception covers a variety of scenarios: •

•

• •

where the police have not yet identified a suspect. In this circumstance, a parade is impossible, but alternative identification methods (such as driving a witness around the neighbourhood) may yield a crucial investigative lead (albeit at the considerable cost of reducing the ability of a later parade to detect a misidentification); where it is impossible or difficult to hold a suitable parade, for example if the defendant looks unusual (perhaps due to a rare ethnicity, or unusual physical features, or even a temporary mark, such as a bruise); where the investigating officers could not reasonably anticipate that identification would be an issue at the trial;27 or where it is too costly to hold the parade. Arranging a live parade involves a considerable effort. Not only do seven or so ‘actors’ have to be gathered and paid, but they must resemble the defendant. These difficulties might make it unreasonable to arrange a parade for minor offences,28 or where an identification is either inevitable (because the witness knows the

22 Crimes Act 1914 (Cth), s 3ZM(5), (6); Defence Force Discipline Act 1982 (Cth), s 101N(4); Crimes Act 1900 (ACT), s 233(5), (6). 23 Section 114(2)(c)). 24 Section 114(5). 25 Crimes Act 1914 (Cth), s 3ZM(3)(b)(i),(7)(a),(b); Crimes Act 1900 (ACT), s 233(3)(b),(7)(a),(b). 26 Section 89. 27 C.f. Evidence Act 2006 (NZ), s 45(4)(d). 28 Section 114(3)(a).

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defendant)29 or extremely unlikely (because the witness did not see much, or is unable to recall much, or because the defendant’s appearance has changed significantly). Some of the latter problems can be overcome by holding a virtual identification parade, where the eyewitness is shown a series of pictures (or videos) of the suspect and similar looking people. This process removes the need to find available locals who look like the suspect. Section 114 does not define ‘identification parade’, but South Australia’s provision gives the term a broad definition that includes virtual parades: identity parade means a contemporaneous presentation (whether by a physical line-up or by means of images) of a number of persons to a witness for the purpose of identifying a person.30

If the uniform evidence legislation is similar, then section 114’s ‘unreasonableness’ exception will be significantly narrowed, as virtual identification parades will be reasonable in far more cases than physical line-ups, due to their flexibility and low cost. Alas, this reading of section 114 is unlikely because of section 115’s separate exclusionary rule for ‘picture identification’, which has been held to include virtual parades. (See the discussion of digital pictures at [13.2.2] under the heading ‘Picture identification’.) The final exception for section 114 is when holding the parade would be ‘unfair to the defendant’.31 This is a curious exception indeed, as it appears intended to apply even when the defendant wants the parade held and it is practicable to do so. The obvious scenario is where the witness at an identification parade is very likely to identify the defendant, because the witness has already seen the defendant’s image (for example, from prior acquaintance, media exposure or an earlier identification). Such an identification may be unfair to the defendant, both because it would seem more probative to a jury than it actually is and because it may make the witness more confident (and hence more credible) than he or she ought to be. That being said, at least when the witness’s prior knowledge of the defendant’s image is more fleeting (such as a distant acquaintanceship, or a brief or reduced earlier sighting), such a parade still carries the possibility of exposing the witness’s mistaken memories of what the defendant actually looked like. Applying section 114 requires considerable care when a witness has seen the accused on multiple occasions. This can happen even in straightforward cases, such as Walford v DPP (NSW) [2012] NSWCA 290, a prosecution for breach of an apprehended violence order. On the prosecution’s case, the witness saw the defendant at least three times: when he first met her (an incident that led to the order being made), when she later saw him approach her house (the alleged breach of the order) and in court (when the defendant was prosecuted for breaching the order). The defendant was otherwise a stranger to her, though she testified that she had ‘seen him around’ on occasions before, in-between and after the out-of-court events. Basten J observed: [T]he complainant might have been asked to make one or both of two assertions. The first could have been that the person she saw outside her apartment was the person about whom she had complained to the police on an earlier occasion, as a result of which an apprehended violence order had been made. A second assertion could have been that the defendant before the court was the person whom she had seen outside her apartment on the latter occasion. (In theory, there could have been a third and separate link, namely that the person about whom she had complained to the police on the earlier occasion was the defendant before the court.)

Section 114 would not bar evidence of the first assertion, because it would have been impossible to hold an identification parade before the breach of the order (and hence reasonable under 29 Section 114(3)(d). 30 Evidence Act 1929 (SA), s 34AB(6). 31 Section 114(4).

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section 114(4) to not hold such a parade). However, the admissibility of the second assertion would depend on whether it was reasonable to hold a parade between the alleged breach and the trial. The third assertion would be similar, but the question would be whether it would be reasonable to hold a parade between the original assault and the trial (a difference that would only matter if the police could have anticipated a dispute about whether the original order was made against the wrong person). So, it is crucial to determine which assertion a witness is being asked to make (and therefore a court is being asked to rely upon) at the trial. This won’t always be clear. In Walford, the witness was asked, ‘Do you know Adam Walford?’ and she replied, ‘no … I mean besides what happened’. She was then asked about whom she saw outside her home when the order was allegedly breached and she replied, ‘Aaron Crawford’. The magistrate ruled that this answer was an in-court identification (presumably of Walford) and inadmissible under section 114 because a parade should have been held. On an initial appeal, the Supreme Court held that the answer was an out-of-court identification and it would not have been reasonable to hold a parade before that identification. On a further appeal, Basten JA observed: The question and answer were ambiguous. By giving (albeit incorrectly) the name of the person which she had just been told was the person against whom the apprehended violence order had been made, the complainant may have intended to identify the person she saw outside her apartment with the person against whom the order had been made. Alternatively, she may have been identifying the defendant in the courtroom. Or she may have been doing both.

The Court of Criminal Appeal ordered that, in order to determine whether section 114, the magistrate needed to resolve the ambiguity (presumably through further, clearer questioning).

13.2.2 Picture identification Section 115 contains a separate set of exclusionary rules for ‘picture identification evidence’. Picture identification evidence is a particular sort of visual identification, done ‘wholly or partly’ by ‘examining pictures’—including photographs 32—‘kept for the use of police officers’. The term captures the traditional police practice of showing dossiers of ‘mug shots’ (head and shoulder photographs of people upon their arrest) to witnesses in an attempt to see whether the perpetrator is someone previously known to the local police. Such a practice is very useful to the police, because it can be performed without a particular suspect in mind or even a detailed description of the offender. However, because pictures used in this context won’t resemble one another much (or, in some instances, at all), picture identification lacks identification parades’ key virtue as a test of whether or not the eyewitness is merely choosing the person who most resembles the offender. Worse still, a picture identification that includes the suspect renders all subsequent identifications (include parades) valueless, because of the risk that the witness will identify the suspect as matching one of the pictures, rather than her memory of the offence. In Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395, Stephen J observed: [T]he unacceptable price of avoiding the intrusion of photo-identification and all its consequences into the trial would be the abandonment of its use in the detection process, the police forgoing all photoidentification in their detection of crime lest it disqualify a potential identifier from giving essential evidence of identity at a subsequent trial. There is a solution to the problem, based upon a compromise. Courts may discourage its use by police after the detection process has come to an end by treating that use as likely to disqualify a witness from giving evidence of the accused's identity: they may at the same time tolerate its intrusion into the trial evidence so long as its earlier use has been in the actual detection of crime.

32 Section 115(10)(a).

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The uniform evidence legislation enacts a version of this compromise by exempting picture identification evidence from section 114’s general requirement for prior identification parades,33 but providing a separate exclusionary rule in section 115(5) that bars prosecution picture identification evidence altogether if the suspect is ‘in custody’ and an identification parade could have been held instead. If the defence adduces picture identification evidence (for example, that the witness picked someone else’s photo), then the prosecution can respond with its own photos (such as of a later occasion when the witness did pick the defendant’s photo) so long as that evidence ‘contradicts or qualifies’ the picture identification relied on by the defence.34 ‘Custody’ is clearly a highly imperfect proxy for distinguishing between the detection and evidence-gathering parts of an investigation and in practice blurs with other excuses the police may have for not holding a parade (which are similar to those specified in section 114). For ACT and federal offences, separate statutes oblige the police to also prefer identification parades over picture identification whenever a suspect ‘is otherwise available to take part in an identification parade’.35 In R v Darwiche [2006] NSWSC 924; (2006) 166 A Crim R 28, a picture identification was held to be admissible both because it was done while the defendant was in prison on an unrelated charge (and hence not ‘in custody’, at least by the police who arranged the identification) and because the defendant’s lawyer responded to the police’s request to hold a parade by demanding to see other evidence first (which was held to be a refusal to participate). The ACT Supreme Court has held that neither a general refusal to speak to the police nor a refusal to decide until receiving legal advice are sufficient to amount to a refusal to take part in a parade, absent evidence of a specific or follow-up request to participate;36 however, a non-response may suffice after enough time has passed and a refusal made without legal advice (including one expressed to be subject to reconsideration if a lawyer advises otherwise) can also be effective.37 A major flaw in section 115 is that it does not address digital technology, which readily allows more refined picture identification procedures that avoid some flaws of photo identification and are arguably superior in some ways to identification parades. One approach, suited to use at the detection stage, is to show the witness mug shots one at a time (for example on PowerPoint slides) and require the witness to indicate immediately if he or she sees the offender (thus reducing the risk—arguably to a fault—that the witness will simply select the picture that most resembles the offender). Another approach, suited to evidence-gathering and now the favoured identification process in England, is ‘video identification’, where the witness is shown (preferably moving) images of the suspect and similar-looking others (avoiding many of the costs and compromises of traditional identification parades).38 In South Australia, the superiority of these alternatives (especially, it seems, the saved police resources) has prompted legislation removing any preference in evidence law for ‘physical’ identification parades.39 Under the uniform evidence law, the first sort of process is clearly ‘picture identification evidence’ and the ACT Supreme Court has assumed (in cases involving slideshows of still images) that the second sort is as well (although that depends on the others’ photos being ones ‘kept for the use of police officers’).40 This means that both processes can be used in preference to identification parades, but only if the suspect is not in custody.

33 34 35 36 37 38 39 40

Section 114(1) specifies that ‘visual identification evidence … does not include picture identification evidence’. Section 115(8). Crimes Act 1914 (Cth), s 3ZO(1); Crimes Act 1900 (ACT), s 235(1). R v Massey [2009] ACTCA 12, [14]; R v Sarlija [2009] ACTSC 127, [23]. R v Sarlija [2009] ACTSC 127, [16]–[17]; R v Carpenter [2011] ACTSC 71, [69]. Police and Criminal Evidence Act Code D, [3.14] and Annex A. Evidence Act 1929 (SA), s 34AB(1). R v Sarlija [2009] ACTSC 127, [32]; R v Carpenter [2011] ACTSC 71, [41].

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In the ACT and federally, separate statutory provisions set out detailed requirements for how picture identifications are to be performed, including the minimum number of photos, requiring that the other photos show similar ‘age and general appearance to the suspect, prohibiting ‘marked’ differences from any description of the offender, specifying what the police officer can and cannot say to the witness and setting out record-keeping requirements.41 By contrast, section 115 lacks even section 114’s ban on a police officer intentionally influencing the witness to identify the accused! Rather, the remainder of the section consists of a small set of rules directed to the risk that either the witness or the court will infer that the defendant has prior convictions. Exclusion is mandatory in just two scenarios: • •

if the pictures ‘suggest they are pictures of people in police custody’;42 and if the defendant is in custody and the police use a pre-custody picture (unless either the defendant’s appearance has changed or a custodial picture is—somehow—impractical).43

As well, section 115(7) requires a judge to inform the jury (at the defence’s request) that the picture was taken while the defendant was in (investigative) custody (for the offence in question, rather than an earlier run-in with the law) or—if that is not true—that the jury ‘must not assume that the defendant has a criminal record’. In R v Carpenter [2011] ACTSC 71, Penfold J addressed the compliance of a digital photo parade with all of these provisions. Two witnesses had described one participant in a robbery as Caucasian, in her mid- or late 20s, ‘a bit overweight’ with blond streaks in her hair, black eyeliner and (possibly) a lower lip piercing. When the accused was arrested that day, she refused a line-up, so her photo was taken instead and eleven photos of similar-looking women were selected. After she was bailed, the two witnesses were shown a slideshow containing the suspect’s photo and nine of the eleven photos, and each selected the defendant. Penfold J dismissed her arguments that the photos suggested they were custodial, noting that each simply resembled a passport photo (including none of them looking ‘particularly cheerful’). She held that the other photos were similar enough to the suspect’s (even though some had double chins, skin blemishes, and lighter eyes) and that none had ‘marked differences’ to the eyewitnesses’ ‘very limited’ descriptions (even though none other than the suspect had a lip piercing, eyeliner or blond streaks). She additionally rejected arguments based on the digitisation of the photo, (disputed) claims that her lip stud was digitally removed and her photo was ‘brighter’ than all the others, holding that none of the differences was significant enough to compromise the process. She also expressed her doubts that it would have been proper to add features (such as the lower lip studs) to all the photos. Finally, she held that section 115 does not bar the police from preparing photos while the suspect is in custody for use once the suspect has been bailed or remanded in prison, noting that such steps are consistent with the uniform evidence legislation’s ‘spirit’ of preferring more reliable over less reliable identifications (in this instance, speedier, albeit non-live, identifications).

13.2.3 Discretionary exclusion Sections 114 and 115 still permit the admission of numerous sorts of flawed identifications, including: •

identification parades that were held after flawed identification processes (and hence may have been infected by those processes);

41 Crimes Act 1914 (Cth), s 3ZO(2), (3); Crimes Act 1900 (ACT), s 235(2), (3). See also Evidence Act 1929 (SA), s 34AB(2)(a)(ii). 42 Section 115(2). 43 Section 115(3) and (4).

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• • • •

identification parades where the witness was unintentionally influenced to pick the defendant or that were flawed in some other way; flawed identifications permitted as exceptions to the requirements of sections 114 and 115; flawed visual identifications that fall outside of the definition of ‘identification evidence’; and flawed non-visual identifications.

Part 3.9 does not bar such evidence, but only requires a direction about the ‘special need for caution’.44 Arguably, that does not go far enough. For example, the flawed processes used to convict Adolph Beck would all have been permitted under Part 3.9. By contrast, New Zealand’s evidence legislation subjects all visual identification to a test of reliability; if appropriate procedures were followed or there were good reasons not to, then the defendant must prove unreliability, while otherwise the prosecution must prove reliability.45 Under the uniform evidence law, additional prospects for exclusion rest on two of the general discretions in Part 3.11:46 • •

section 137, which requires exclusion of prosecution evidence ‘if its probative value is outweighed by the danger of unfair prejudice to the defendant’; section 138, which requires exclusion of illegally or improperly obtained evidence unless it is more desirable to admit it.

However, neither is directed towards the problems of unreliability or unfairness. McHugh J has observed: [T]he weakness of relevant evidence is not a ground for its exclusion. It is only when the probative value of evidence is outweighed by its prejudicial effect that the Crown can be deprived of the use of relevant but weak evidence. And evidence is not prejudicial merely because it strengthens the prosecution case. It is prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task.47

In that matter, the common law case of Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593, evidence was given by four eyewitnesses as follows: •

•

•

•

44 45 46 47

The first witness saw a car driven by the bank robbers and saw a ‘fleeting’ glimpse of the female robber, who he said could have been wearing a wig. He attended the defendant’s committal hearing. Later he testified that he recognised the defendant—the only woman under forty at the court that day—as the robber, because of her hair and size. The second witness—a hairdresser—observed the robbers driving a car and noticed that the female robber was wearing a wig. She attended the defendant’s committal hearing and later testified that she recognised the defendant. The third witness spoke briefly with the female robber, later describing her height, age and clothes. She told him ‘I’ll be back in a minute’ and he later saw her drive away wearing a wig. He was shown a set of photos, including the defendant, but selected two other photos. He also attended the defendant’s committal hearing and later testified that he recognised her because of her appearance, her gait and her voice when she said: ‘Oh, I’m in the wrong court.’ The fourth witness—also a hairdresser—saw the robbery in progress and later described the female robber’s layered hair and pale complexion, although he ‘could not sort of say what

Section 116. Evidence Act 2006 (NZ), s 45. See Chapter 16: Discretionary and Mandatory Exclusions. Festa v The Queen [2001] HCA 72; 208 CLR 593, [51].

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her face really looked like’. He selected three photos from a set, one of which included the defendant. While all of the High Court agreed that the evidence was ‘weak’ and that it was open to the trial judge to exclude all of this evidence, a majority held that the judge’s decision not to exclude the evidence was also open. Only Kirby J (correctly in the authors’ view) expressly declared that the courthouse identifications should have been excluded as ‘virtually valueless’, as the defendant was the only woman in the building who could have been selected. He also labelled the opportunity for the witnesses to share their impressions beforehand and the lack of any recording of the contrived meetings as ‘seriously unfair to the’ defendant. But even he (together with Callinan J, who also considered that the courthouse identifications were inadmissible as a breach of the Queensland police’s own processes) held that these flaws did not make the defendant’s trial a substantial miscarriage of justice, in light of the circumstantial evidence of her guilt. Part 3.9 itself reduces the chance of discretionary exclusion in two ways. First, the detailed rules in sections 114 and 115 render it less likely that a court will regard an unregulated impropriety as sufficient to warrant exclusion. In DPP v Lynch [2006] TASSC 89, the Tasmanian Court of Criminal Appeal held that, because of the omission of sections 114 and 115 in that jurisdiction, Tasmanian judges cannot exclude particular processes (for example picture identification) merely on the basis that there are more preferable processes (for example identification parades) that could have been performed. Second, the mandatory direction in section 116 obviates some of the risk of prejudice. As noted in Chapter 12: Character, the High Court unanimously held in Dupas v The Queen [2010] HCA 20 that jurors’ diligence is a ‘constitutional fact’. So, it is unsurprising that, in the same case, Victoria’s Court of Appeal held that the considerable flaws in one witness’s identification—she initially recognised the defendant in a tabloid newspaper describing him as a serial killer and linking him to the murder under trial, and then in a photoboard including a ‘heavily photoshopped’ and ‘crudely altered’ image of the defendant—were ‘matters that go to weight’ and ‘could be addressed with appropriate jury directions’48.

SUMMARY In trials where identity is disputed: • • •

•

jurors must be warned of the ‘special need for caution’ in examining identification evidence; visual identification evidence is inadmissible unless it was preceded by an identification parade or holding such a parade would be unreasonable; an exception is picture identification evidence if the defendant was not in custody at the time or holding a parade; however, such evidence is inadmissible if the defendant was in custody and holding a parade would be reasonable, or if certain measures were not taken to prevent the witness or jury from learning that the defendant has had prior dealings with the police; in theory, flawed identification procedures may also provide grounds for discretionary exclusion.

48 Dupas v The Queen [2012] VSCA 328.

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s 113 Is this a criminal proceeding?

NO

YES

NO

NO

NO

YES

Is the assertion about the defendant?

Is the assertion about a person who was present or near the crime scene or an act connected with it, at or around the time of the crime or the act?

Is the evidence an assertion by a person of identity or resemblance?

THE EVIDENCE IS NOT AFFECTED BY PART 3.9

YES

NO

YES

Is the assertion based wholly or partly on what the maker YES perceived at that place and time? YES NO

Was the evidence adduced by the prosecution? YES

YES

s 114 Was the maker intentionally influenced to identify the defendant?

NO

Was the assertion made wholly or partly by the maker examining pictures kept for the use of police officers?

YES

s 115 Does the evidence contradict or qualify picture identification evidence adduced by the defence?

NO

NO

THE EVIDENCE IS INADMISSIBLE

Was an identification parade that included the defendant held before the identification was made?

YES

Was the defendant in an investigating officer’s custody when the pictures were examined? NO

YES

YES

Was it reasonably practicable to take a picture of the defendant after the defendant was taken into custody?

NO

NO

YES

Was the defendant’s picture taken before the defendant was taken into custody?

NO

NO

Has the defendant’s appearance changed significantly between the offence and the custody?

YES

YES Did the defendant refuse to take part in an identification parade?

YES

NO Did the defendant refuse to participate unless a lawyer was present?

YES

NO

Was it reasonably practicable for the defendant’s lawyer to be present before the parade?

NO

YES

Would it have been unfair to the defendant to have held an identification parade?

YES

NO YES

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Was it reasonably practicable to hold an identification parade?

Is the assertion based wholly or partly on what the maker saw? NO

THE ADMISSIBILITY OF THE EVIDENCE IS NOT AFFECTED BY PART 3.9 BUT A JURY WARNING IS REQUIRED

FIGURE 13.1 IDENTIFICATION EVIDENCE

278 PART 2 ADMISSIBILITY

NO

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279

PRIVILEGES

14

INTRODUCTION The law of privilege allows a person from whom information is sought to resist what would otherwise be a compulsory request for disclosure. This chapter covers all but one of the main privileges recognised under the uniform evidence legislation, namely: • • • • •

professional confidential relationship privilege; sexual assault communications’ privileges; the privilege against self-incrimination; public interest immunity or evidence of matters of state; and settlement negotiations’ privilege.

Three further privileges are mentioned very briefly at the end of the chapter. Client legal privilege, which is the most important of the privileges, is the subject of Chapter 15: Client Legal Privilege.

14.1 THE LAW OF PRIVILEGE 14.1.1 Powers to compel disclosure The law of privilege gives people the right to resist, what would otherwise be, compulsory demands for information. Powers to make compulsory demands for information are conferred in a variety of ways, and operate in a variety of different contexts. They are not generally considered, however, to form part of the law of evidence, and so will only be discussed briefly. At the trial stage of both civil and criminal proceedings, witnesses can be compelled by subpoena to attend the trial in order to be examined by the parties. A subpoena compelling the attendance of a witness is called a subpoena ad testificandum. Once a witness has been compelled to attend, and has been held to be competent, he or she can then be compelled to answer the questions put by the party, assuming that the answers to such questions are both relevant and admissible. Subpoenas can also be used to compel production of relevant documents (a subpoena duces tecum). In civil proceedings, the parties are also given extensive powers to compel their opponents to disclose relevant documentary evidence through such mechanisms as discovery and inspection; and, to a lesser extent, by the use of interrogatories. In criminal proceedings, the pre-trial discovery processes are not nearly as well developed. A  committal often acts as a de facto form of pre-trial discovery for the defence. Prosecutorial duties of fairness, such as those imposed by the rules of the various Australian bar associations, also require the prosecution to disclose to the defence all relevant material in its possession, including material that favours the defence. The failure to disclose material favourable to the

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defence has been relied on in several English decisions as a ground for quashing a conviction.1 Freedom of information legislation has also been used, on occasion, as a means of gaining access to the information contained in the prosecution brief.2 And, in Victoria, section 6 of the Crimes (Criminal Trials) Act 1999 (Vic)—the primary aim of which is to reduce the length of criminal trials by ensuring that the real points of issue between prosecution and defence are identified before the trial—imposes disclosure obligations on the prosecution, including requiring the prosecution to serve and file a summary of its opening, not less than 28 days before the start of the trial. In New South Wales, section 183 of the Criminal Procedure Act 1986 (NSW) requires the prosecutor to serve a copy of the prosecution brief on the accused. Pre-trial discovery for the prosecution in criminal proceedings is even patchier. Doubtlessly, this reflects the traditional view that the defendant is under no obligation (other than to the extent required by the rule in Browne v Dunn (1894) 6 R 67, discussed in Chapter 2: Witnesses, at [2.3.4.6] under the heading ‘The rule in Browne v Dunn’) to disclose even the nature of his or her defence—let alone the evidence on which it is based—until the close of the prosecution case, at the trial itself. It is therefore unusual for the defence to lead any evidence at a committal. While this approach is consistent with the right to silence, the presumption of innocence, and the allocation of the burden of proof in a criminal trial, it is obviously of some inconvenience to the prosecution, which might not know—until after the close of the prosecution case—which aspects of the case will be contested. Most Australian jurisdictions now require a degree of pre-trial disclosure where the defence is one of alibi. In Victoria, section 7 of the Crimes (Criminal Trials) Act 1999 (Vic) also requires the defence to serve and file a pre-trial response to the summary of the prosecution opening, which identifies ‘the acts, facts, matters and circumstances with which issue is taken and the basis on which issue is taken’. Expert witness statements aside, however, the defence is under no obligation to disclose the actual evidence upon which it will rely. Powers to compel disclosure also exist outside the context of legal proceedings, and take the form of either a power to compel a person to answer questions, or a power to compel a person to produce material—usually documents—in his or her possession. Such powers are frequently conferred by statute on government agencies, and authorities such as the Australian Competition and Consumer Commission (‘ACCC’), the Australian Securities and Investments Commission (‘ASIC’), and the Australian Crime Commission. The law of privilege—in particular, client legal privilege and the privilege against self-incrimination—can be claimed in these contexts, provided that the privileges have not been either expressly or impliedly abrogated by the statute conferring the power of compulsory disclosure. Although there is a great deal of case law on this topic,3 the operation of the law of privilege in these contexts is beyond the scope of a book concerned with the rules of evidence applicable in courts of law.

14.1.2 The public policy basis of the law of privilege It is against this backdrop of powers to compel the disclosure of information described above that the law of privilege operates. The law of privilege comprises a number of public policy-based rules entitling a person to resist an otherwise compulsory demand for disclosure. At common law, as Gummow J observed in Commissioner, Australian Federal Police v Propend Finance Pty Ltd, each of the various privileges are more properly characterised ‘as a bar to compulsory process for 1 See, for example, R v Maguire [1992] 1 QB 936 and R v Ward [1993] 2 All ER 577. 2 See Sobh v Police Force of Victoria [1994] 1 VR 41. 3 See, for example, The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543; and Pratt Holdings Pty Ltd v Federal Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357.

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the obtaining of evidence rather than as a rule of inadmissibility’;4 however, under the uniform evidence legislation, the privileges are first and foremost rules of inadmissibility, albeit that those rules have in some cases been extended so as to apply outside the courtroom.5 In the trial context, however, the end result of a successful claim of privilege is to deprive the court of relevant, and perhaps highly probative, evidence. The law of privilege therefore represents a derogation from the general principle that all relevant evidence should be admitted. The existence and scope of a rule of privilege reflects a decision by the courts, or—in the case of the uniform evidence legislation—by a legislature, in respect of the kind of information sought, that the public interest favouring non-disclosure outweighs the public interest in ensuring that all relevant information is available to the courts. This means that critically evaluating the law of privilege generally revolves around the question of whether the public policy, on which the particular privilege is based, outweighs the public interest in ensuring that a court considers all relevant information before reaching a conclusion on the facts. Failure to take relevant information into account obviously creates a risk that the wrong conclusion will be reached. Therefore, the public policy reason for allowing relevant information to be withheld needs to be a compelling one.

14.1.3 Effect of a claim of privilege A rule of privilege confers on a person the right to insist that relevant information be withheld from a court. Under section 132 of the legislation, the court is under an obligation to ensure that a witness or party is aware of its rights to claim privilege. If the court fails in this duty, and a witness gives evidence for which they might otherwise have been able to claim privilege, this could provide a basis for having the evidence excluded as being improperly obtained.6 If, being aware of the right to claim privilege, a witness or party chooses not to claim it, then the privilege has been waived, and the evidence can be adduced. This is implicit in the fact that it is a requirement of several of the privileges that there has been an objection to the adducing of the evidence: if there is no objection from the privilege holder, then the evidence is admissible.7 If the privilege is claimed, then it is up to the court to determine whether or not the claim is valid. If privileged evidence is adduced before the privilege can be claimed—as, for example, where a witness blurts out an answer before an objection has been made—then it is, by virtue of section 134, inadmissible and must be disregarded by the tribunal of fact. A successful claim for privilege does not, however, prevent a party from attempting to prove a particular fact; it merely prevents the proof from being obtained by means of information claimed under privilege.8 At common law, a successful claim for privilege merely renders the information immune from compulsory disclosure. If secondary evidence is available—as, for example, where a party has somehow obtained a copy of a legally privileged document—then the law of privilege does not prevent the party from adducing this evidence.9 The only method of preventing the use of such information may be to seek a remedy in equity.10 If no such remedy is available, then there may be nothing that the privilege holder can do to prevent the document’s use. Indeed, on this view of privilege, it matters not how the person came into possession of the privileged

4 Commissioner, Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; (1997) 188 CLR 501, 566 (Gummow J). 5 See [14.1.4] below. 6 See LGM v CAM [2011] FamCAFC 195, discussed in Chapter 16: Discretionary and Mandatory Exclusions. 7 See, in particular, ss 118, 119, 120 and 128; see also s 127. 8 See, for example, Mead v Mead [2007] HCA 25; (2007) 235 ALR 197. 9 See Calcraft v Guest [1898] 1 QB 759. 10 See, for example, Ashburton v Pape [1913] 2 Ch 469.

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document—whether it was through inadvertence on the part of the privilege holder’s lawyers, or even stolen from the privilege holder.11 As Gummow J commented, in relation to legal professional privilege, in Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 565, being an immunity: the privilege itself is not to be characterised as a rule of law conferring individual rights, breach of which gives rise to an action on the case for damages, or an apprehended or continued breach of which may be restrained by injunction.

The position is different under the uniform evidence legislation, at least in relation to the adducing (if not the production) of evidence. This is because section 134 provides that ‘[e]vidence that, because of this Part, must not be adduced or given in a proceeding is not admissible in the proceeding’. Section 134 is based on a belief that the protection provided by privilege ‘should not be lost if evidence of the communication or material was obtained accidentally or illegally’.12 Privileged information will only be admissible under the uniform evidence legislation, therefore, if the privilege has actually been ‘waived’ or otherwise lost.

14.1.4 Scope of the uniform evidence legislation privileges The privileges created by the legislation prohibit the ‘adducing’ of evidence that falls within their scope. Accordingly, the privileges created by the legislation only operate as rules of evidence in proceedings to which the legislation applies. In contrast, the privileges and immunities created by the common law are not simply rules of evidence, but rights to resist disclosing information that would otherwise have to be disclosed. Consistently with this, the common law privileges and immunities are not restricted in their operation to judicial proceedings, but can be claimed in response to any compulsory disclosure requirement. In those contexts where the uniform evidence legislation’s privileges cannot be claimed, the common law privileges and immunities continue to operate.13 Because the uniform evidence legislation and the common law privileges continue to operate in different contexts, anomalies can occur if the scope of a common law privilege differs from the scope of the equivalent privilege under the legislation. For example, if questions of privilege are determined by common law in a pre-trial context, but at trial they are determined by the legislation, then—for instance—a communication falling outside the scope of legal professional privilege at common law, and thus subject to discovery, might fall inside the scope of client legal privilege under the legislation, and therefore be inadmissible at trial, or vice versa. In order to eliminate such anomalies, the Australian Law Reform Commission recommended that application of some of the legislation’s privileges be extended to all compulsory processes for disclosure, not only those that operated in a trial context.14 These recommendations were partially adopted through the insertion of a new section 131A, but were not adopted to the same extent in each of the uniform evidence legislation jurisdictions. Rather than being extended to all compulsory processes for disclosure, the legislative privileges have generally only been extended 11 See Lord Ashburton v Pape [1913] 2 Ch 469 at 473 (Cozens-Hardy MR); and Baker v Campbell (1983) 153 CLR 52 at 67 (Gibbs CJ). 12 Australian Law Reform Commission, Evidence (Interim), Report No 26 (2005) Volume 1, [885]. 13 See Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1; and Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49. 14 See Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005) [14.69], Recommendation 14–1 in relation to client legal privilege; [15.37], Recommendation 15–3 in relation to professional confidential relationship privilege; [15.84], Recommendation 15–6 in relation to sexual assault communications privilege; and [15.166], Recommendation 15–11 in relation to evidence of matters of state.

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to other court-related compulsory disclosure processes, such as those operating in the pre-trial context. The operation of such privileges has not yet been extended to other, non-curial, compulsory disclosure requirements, such as notices issued by ASIC, or the ACCC. More specifically: •

•

•

•

In jurisdictions where the Commonwealth Act applies: – The journalists’ privilege in Division 1A can be claimed in response to a ‘disclosure requirement’. – A ‘disclosure requirement’ means ‘a court process or court order that requires the disclosure of information or a document’, including but not limited to a summons or subpoena, pretrial discovery, non-party discovery, interrogatories, a notice to produce, and a request to produce a document under Division 4.6.1 (requests to produce documents or call witnesses). – The application of the other privileges under the Act has not been extended to the pre-trial stage of proceedings. In New South Wales: – Each of the privileges in Division 1 (client legal privilege), Division 1A (professional confidential relationship privilege), Division 1C (journalist privilege) and Division 3 (evidence excluded in the public interest, including evidence of matters of state and evidence of settlement negotiations) can be claimed in response to a ‘disclosure requirement’. – However, section 123 (lifts client legal privilege where the person attempting to adduce the evidence is a criminal defendant) and section 128 (the privilege against self-incrimination), do not operate outside the trial context. – A ‘disclosure requirement’ means ‘a process or order of a court that requires the disclosure of information or a document’ and includes the same things as are referred to in the Commonwealth definition above. – Although Division 1B (sexual assault communications’ privilege) is not given extended application by section 131, there are analogous provisions in Part 5, Division 2 of the Criminal Procedure Act 1986, which do apply to the pre-trial stage. – In addition, in New South Wales, the Uniform Civil Procedure Rules define the phrase ‘privileged information’ in such a way as to import most of Part 3.10 into the pre-trial proceedings, in which those rules apply; and section 87 of the Civil Procedure Act 2005 does the same for orders to produce. In Victoria: – Each of the privileges in Division 1 (client legal privilege), Division 1C (journalist privilege), and Division 3 (evidence excluded in the public interest, including evidence of matters of state and evidence of settlement negotiations), can be claimed in response to a ‘disclosure requirement’. – As in New South Wales, section 123 (lifts client legal privilege where the person attempting to adduce the evidence is a criminal defendant) and section 128 (the privilege against selfincrimination) do not operate outside the trial context. – The phrase ‘disclosure requirement’ is defined in the same terms as in New South Wales, except that ‘disclosure requirement’ is also specifically said to include ‘a search warrant’. – The confidential communications’ provisions in Part II, Division 2A of the Evidence (Miscellaneous Provisions) Act 1958 apply at both the pre-trial and trial stage of criminal proceedings. In Tasmania: – Each of the privileges in Division 1 (client legal privilege), Division 1A (professional confidential relationship privilege), Division 3 (evidence excluded in the public interest),

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•

•

•

section 127A (medical communications) and section 127B (communication to counsellor) can be claimed in response to a ‘disclosure requirement’. – The phrase ‘disclosure requirement’ is defined in the same terms as in New South Wales. In the Australian Capital Territory: – Each of the privileges in Division 3.101 (client legal privilege), Division 3.10.1A (professional confidential relationship privilege), Division 3.10.1C (journalist privilege) and Division 3.10.3 (evidence excluded in the public interest) can be claimed in response to a ‘disclosure requirement’. – The phrase ‘disclosure requirement’ is defined in the same terms as in New South Wales. – The protection of counselling communications’ provisions in Division 4.5 of the Evidence (Miscellaneous Provisions) Act 1991 applies at both the pre-trial and trial stage of criminal proceedings. In the Northern Territory: – Each of the privileges in Division 1 (client legal privilege), Division 1A (professional confidential relationship privilege), Division 1C (journalist privilege) and Division  3 (evidence excluded in the public interest, including evidence of matters of state and evidence of settlement negotiations) can be claimed in response to a ‘disclosure requirement’. The phrase ‘disclosure requirement’ is defined in the same terms as in New South Wales. – The confidential information provisions in Part 7 of the Evidence Act 2011 apply at both the pre-trial and trial stage of criminal proceedings. In all of the jurisdictions: – Section 128A creates a mechanism for the determination of claims of privilege against self-incrimination with respect to information that a court has ordered to be disclosed as part of, or in connection with, a freezing (Mareva) or search (Anton Piller) order.15 In effect, it applies the section 128 provisions, discussed in detail below, to those contexts.

Under each of the Acts, the extended operation of the privileges is limited to the curial context. Under the Commonwealth Act, this is because ‘disclosure requirement’ is defined as ‘a court process or court order’. This means that only the common law privileges can be relied on in response to noncurial compulsory disclosure requirements. In the other jurisdictions, the definition of ‘disclosure requirement’ refers instead to ‘a process or order of a court’, and the Explanatory Memorandum to the Victorian Act makes it clear that: ‘The privileges are not extended to non-curial contexts’. The common law privileges and immunities will therefore continue to operate in these non-curial contexts, except where they have been specifically abrogated by statute. This text does not, however, cover the common law privileges and immunities in any detail, because they do not—particularly now that they do not operate in the non-curial context—form part of the law of evidence.

14.2 PROFESSIONAL CONFIDENTIAL RELATIONSHIP PRIVILEGE The common law has never recognised confidentiality per se as grounds for allowing a person to resist a demand for disclosure. In its first evidence law report, the Australian Law Reform Commission recommended the creation of a further discretionary privilege to cover confidential professional relationships, but the 1995 Acts did not include such a privilege.16 However, this privilege was added to the NSW Act in 1997, when a new division—Division 1A—was inserted 15 The definition of ‘disclosure order’ in s 128A(1) varies slightly from jurisdiction to jurisdiction. 16 See Australian Law Reform Commission, Evidence (Interim), Report No 26 (2005) Volume 1, [955].

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into the Act, allowing a court to direct that evidence not be adduced if doing so might cause harm to a ‘confider’. Although the Victorian Law Reform Commission recommended the inclusion of Division 1A in the Victorian Act,17 the Victorian Act does not include these provisions. Tasmania, and the ACT, however, have both adopted the New South Wales’ provisions (albeit, with some minor variations in wording). The key provision is section 126B(1), which provides that a court: may direct that evidence not be adduced in a proceeding if the court finds that adducing it would disclose: (a) a protected confidence; or (b) the contents of a document recording a protected confidence; or (c) protected identity information.18

The privilege is also applied in the pre-trial context by virtue of section 131A.19 The phrase ‘protected confidence’ is defined in section 126A(1) of the New South Wales Act as: a communication made by a person in confidence to another person (in this Division called the confidant): (a) in the course of a relationship in which the confidant was acting in a professional capacity, and (b) when the confidant was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law or can be inferred from the nature of the relationship between the person and the confidant.

A ‘protected confider’ is defined as a person who has made a protected confidence. Professional confidential relationships that could give rise to the privilege include those between doctor and patient, therapist or counsellor and patient or client, journalist and source, and accountant and client. Although the title of the division refers to professional confidential relationship privilege, Division 1A is actually more closely analogous to public interest immunity (or the exclusion applying to evidence of matters of state), than it is to client legal privilege. This is because the protection it confers is not absolute, but is dependent on the outcome of a balancing exercise. Thus, section 126B(3) provides that a court must give a direction that evidence of a protected confidence not be adduced 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. Section 126B(4) provides a non-exhaustive list of factors that the court must take into account in carrying out this balancing process. The privilege can be lost in a number of ways, analogous to those that apply to client legal privilege including: • •

when the evidence is given with the consent of the protected confider;20 and when the communication was made or document prepared in furtherance of a fraud, offence or act that renders a person liable to civil penalty.21

17 Victorian Law Reform Commission, Implementing the Uniform Evidence Act, 2006, Melbourne: Victorian Law Reform Commission, [2.53], Recommendation 13. Victoria has, however, retained its previous privilege for ‘confessions to doctors’, in s 28(2) of the Evidence (Miscellaneous Provisions) Act 1958: see [14. 8] below. 18 Defined in s 126A(1) to mean ‘information about, or enabling a person to ascertain, the identity of a person who made a protected confidence’. 19 See [14.1.4] above. 20 Section 126C. 21 Section 126D.

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14.3 JOURNALIST PRIVILEGE The Commonwealth, New South Wales, Victoria, and the Australian Capital Territory have also enacted provisions designed to protect journalists’ sources, or ‘informants’. The provisions are found in Division 1A of the Commonwealth Act, and Division 1C of the New South Wales, Victorian, and ACT Acts. Each set of provisions creates a prima facie rule that a journalist (and the journalist’s employer) cannot be compelled to give evidence that would disclose the identity of an informant, whose identity the journalist has promised not to disclose, or that would enable the informant’s identity to be ascertained.22 In Victoria, the promise must have been given ‘in the course of the journalist’s work’. In the Commonwealth and the ACT, the exemption extends to the production of documents; in New South Wales and Victoria, the same result is achieved through section 131A’s application of journalist privilege to disclosure requirements. In each jurisdiction, on the application of a party, the court may override the rule by ordering that it not apply. This discretion can only be exercised if the court is satisfied that, having regard to the issues in the proceeding, the public interest in the disclosure of the informant’s identity outweighs: • •

any likely adverse effect on the disclosure of the informant or any other person; and the public interest in the communication of facts and opinion to the public by the news media, and accordingly, in the ability of the news media to access sources of facts.23

In each Act, ‘informant’ is defined as ‘a person who gives information to a journalist in the normal course of the journalist’s work in the exception that the information may be published in a news medium’.24 The phrase ‘news medium’ is defined to include ‘any medium for the dissemination to the public or a section of the public of news and observations on news’. Despite this shared core, the provisions vary slightly in their scope due to the different definitions used for the key term ‘journalist’.25 The definition used in the Commonwealth and ACT Acts is the broadest, defining a journalist as ‘a person who is engaged and active in the publication of news and who may be given information by an informant in the expectation that the information may be published in a news medium’. The definition was deliberately intended to remove any requirement that a ‘journalist’ be employed and paid as such; for example, a part-time blogger might well satisfy the requirements of the definition. In New South Wales, by contrast, a ‘journalist’ is limited to persons ‘engaged in the profession or occupation of journalism in connection with the publication of information in a news medium’. In Victoria, the words ‘comment, opinion or analysis’ are added after the word ‘information’ in this definition; the section also prescribes a multifactorial test for determining whether or not a person is ‘engaged in the profession or occupation of journalism’. Rares J considered the operation of the Commonwealth provisions in the case in which James Ashby sued the Commonwealth and Peter Slipper, the Speaker of the House of Representatives, alleging that Mr Slipper had sexually harassed him during his employment, and had involved him in ‘questionable conduct in relation to travel’. Mr Slipper applied to have the proceedings dismissed as an abuse of process, contending that Mr Ashby’s predominant purpose in bringing the proceedings was to inflict damage on Mr Slipper’s reputation and career for the benefit of the Liberal National Party and Malcolm Brough, who was contesting Mr Slipper’s seat. In order to 22 23 24 25

Evidence Act 1995 (Cth), s 126H(1), and s 126K(1) of the NSW, Victorian and ACT Evidence Acts. Evidence Act 1995 (Cth), s 126H(2), and s 126K(2) of the NSW, Victorian and ACT Evidence Acts. Evidence Act 1995 (Cth), s 126G, and s 126J of the NSW, Victorian and ACT Evidence Acts. Evidence Act 1995 (Cth), s 126G, and s 126J of the NSW, Victorian and ACT Evidence Acts.

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obtain evidence to support this claim, Mr Slipper served a subpoena on Steve Lewis, the News Limited journalist who first broke the story, requiring him to produce all documents evidencing, recording or constituting communications between Mr Lewis, on the one hand, and Mr Ashby and Mr Brough (among others), on the other hand, regarding Mr Ashby’s allegations. Mr Lewis relied on journalists’ privilege as a reason for refusing to produce the documents. Rares J held that the definitions of both ‘informant’ and ‘journalist’ require a relationship between a particular piece of information that has been conveyed, and the promise not to disclose the informant’s identity; that is, there must have been a promise by the journalist not to disclose the identity of the informant as the source of that particular piece of information. Thus, if a person had provided information to a journalist, both on and off the record, the privilege would only be claimable in relation to the information that had been provided off the record. Second, the privilege only applies when the informant’s identity has not already been disclosed. If, for example, the informant has already identified himself as the source of the journalist’s information, or the journalist has revealed the informant as the source, then the privilege cannot be claimed.26

14.4 SEXUAL ASSAULT COUNSELLING PRIVILEGES Most of the uniform evidence legislation jurisdictions have enacted legislation designed to limit— what had become an increasingly common practice by the defence in sexual assault trials—of calling for the production of any sexual assault counselling records relating to the complainant.27 There is no uniformity to the location or content of the provisions:

Jurisdiction

Provisions

New South Wales

• Primarily, Chapter 6, Part 5, Division 2 of the Criminal Procedure Act 1986. • Division 1B of the Evidence Act 1995 extends the privilege to protected confidences, which is not covered by the provisions of the Criminal Procedure Act 1986.

Victoria

Part II, Division 2A of the Evidence (Miscellaneous Provisions) Act 1958.

Tasmania

Section 127B of the Evidence Act 2001.

Australian Capital Territory

• Primarily, Division 4.5 of the Evidence (Miscellaneous Provisions) Act 1991. • Division 3.10.1A of the Evidence Act 2011 extends the privilege to protected confidences not covered by the provisions of the Evidence (Miscellaneous Provisions) Act 1991.

Northern Territory

Part 7 of the Evidence Act 2011.

26 Ashby v Commonwealth (No 2) [2012] FCA 766; (2012) 203 FCR 440. 27 See, inter alia, A Cossins and R Pilkinton, ‘Balancing the Scales: The Case for the Inadmissibility of Counselling Records in Sexual Assault Trials’ (1996) 19 University of New South Wales Law Journal 222, and S Bronitt and B McSherry, ‘The Use and Abuse of Counseling Records in Sexual Assault Trials: Reconstructing the “Rape Shield”?’ (1997) 8 Criminal Law Forum 259.

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The New South Wales’ provisions, which were the first to be enacted, operate to protect from production documents that record a ‘counselling communication’ that is made by, to or about a victim or alleged victim of a sexual assault. The provisions make inadmissible evidence that would disclose such a communication . The court may, however, order production or give leave to adduce such evidence if satisfied: • • •

that the evidence will be of substantial probative value; that other evidence of the communication is not available; and that the public interest in preserving the confidentiality of the communication, and protecting the confider from harm, is substantially outweighed by the public interest in allowing inspection of the document, or admitting the information into evidence.

The legislation specifies a number of factors that the court should take into account in making this decision, many of them concerned to protect the ability of sexual assault victims to receive effective counselling. The requirement that the evidence ‘will’ be of substantial probative value ought to ensure that production is only ordered when the party applying for production is able to identify with some precision, and detail, reasons as to why the evidence will have that effect. A  speculative application based on the bald proposition that the confider may have given an account of events that could be inconsistent with their evidence in the trial ought not to suffice. Provisions in the other jurisdictions differ in many respects from the New South Wales provisions, but adopt the same approach of providing that a court must not grant leave to adduce evidence of a ‘confidential communication’ unless it is satisfied of the same three factors identified above in relation to the New South Wales provisions.28 The other jurisdictions also follow the New South Wales provisions by applying to the production, as well as the adducing, of the evidence.

14.5 THE PRIVILEGE AGAINST SELF-INCRIMINATION The privilege against self-incrimination was the creation of the courts.29 It has been retained in section 128 of the uniform evidence legislation, with one very significant reform, discussed below under the heading ‘Overriding the privilege’. Implicit in the wording of section 128 is that it only applies with respect to a witness giving evidence at trial. However, section 128A creates a mechanism for the determination of claims of privilege against self-incrimination, with respect to information that a court has ordered to be disclosed as part of, or in connection with, a freezing (Mareva) or search (Anton Piller) order.30 In effect, it applies the provisions of section 128 to those contexts. In all other contexts, the common law privilege continues to operate.

14.5.1 Justification for the privilege The privilege against self-incrimination has often been said to have grown out of the common law’s reaction to the inquisitorial procedure of the Court of Star Chamber; however, it is now generally considered to have ‘originated within the European tradition as a sub-principle of inquisitorial

28 See Evidence (Miscellaneous Provisions) Act 1958 (Vic), ss 32AB–32G. 29 The privilege is preserved, subject to specific statutory amendment, by the following legislation: Evidence Act 1939 (NT), s 10; Evidence Act 1977 (Qld), s 10; Evidence Act 1958 (Vic), s 26; and Evidence Act 1906 (WA), s 24. 30 See [14.1.4] above.

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procedure’.31 Whatever the origins of the privilege, it reflects a view that there is something uniquely unjust about confronting a person suspected of having committed an offence, with what Mason CJ and Toohey J described in EPA v Caltex, as the ‘cruel trilemma’ of punishment for refusal to testify, punishment for truthful testimony or perjury (and the consequential possibility of punishment).32 As Brennan J noted in the same case: 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.33

The privilege against self-incrimination is thus a reaction to the perceived unfairness of forcing someone to provide the evidence upon which he or she will be convicted. In this respect, it is ‘in the nature of a human right, designed to protect individuals from oppressive methods of obtaining evidence of their guilt for use against them’.34 Therefore, the privilege reflects one of the means by which the law of evidence attempts to strike a fair balance between the competing demands of law enforcement and personal liberty. But the privilege also upholds the idea ‘that those who allege the commission of a crime should prove it themselves’.35 In this latter respect, the privilege is consistent with the fact that the burden of proof in criminal prosecutions lies on the Crown.

14.5.2 Scope of the privilege At common law, the privilege is more than just a rule of evidence. In its resemblance to a ‘human right’,36 it can be claimed in response to any compulsory demand for disclosure, unless, that is, the statute conferring the power of compulsion has also, either expressly or by necessary implication, abrogated the privilege. In recent years, numerous cases have turned on the question of whether a particular statute has abrogated the privilege;37 however, because these statutes are concerned with extra-curial powers of compulsion, this question falls outside the scope of the law of evidence, and will not be considered further. The protection offered by the privilege, both at common law and under the uniform evidence legislation, is limited to ‘testimonial disclosure’. As Gibbs J observed in Sorby v The Commonwealth: The privilege prohibits the compulsion of the witness to give testimony, but it does not prohibit the giving of evidence, against the will of a witness, as to the condition of his body. For example, the witness may be required to provide a fingerprint, or to show his face or some other part of his body so that he may be identified, or to speak or to write so that the jury or another witness may hear his voice or compare his handwriting.38

In the evidential context, where sections 128 and 128A operate, the privilege can be claimed with respect to answers to questions. It can be claimed in civil and criminal proceedings, and at both 31 J Langbein, ‘The Privilege and Common Law Criminal Procedure: The Sixteenth to the Eighteenth Centuries’, in R H Helmholtz, C M Gray, J H Langbein et al. (eds), The Privilege Against Self-Incrimination: Its Origins and Development, 1997, Chicago: University of Chicago Press, 100–101; see also the discussion by McHugh J in Azzopardi v The Queen [2001] HCA 25, [118]–[135]; (2001) 205 CLR 50, [118]–[135]. 32 EPA v Caltex [1993] HCA 74, [33]; (1993) 178 CLR 477, 498 (Mason CJ and Toohey J), adopting a phrase coined by Goldberg J in Murphy v Waterfront Commission 378 US 52 (1964). 33 EPA v Caltex [1993] HCA 74, [10]; (1993) 178 CLR 477, 514 (Brennan J). 34 EPA v Caltex [1993] HCA 74, [59]; (1993) 178 CLR 477, 508 (Mason CJ and Toohey J). 35 EPA v Caltex [1993] HCA 74, [23]; (1993) 178 CLR 477, 532 (Deane, Dawson and Gaudron JJ). 36 See also the Victorian Charter of Human Rights and Responsibilities, s 25(2)(k). 37 See, for example, Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs [1985] HCA 6; (1985) 156 CLR 385; and Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486. 38 Sorby v The Commonwealth [1983] HCA 10, [8]; (1983) 152 CLR 281, 292 (Gibbs CJ).

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the trial and the pre-trial stages.39 In the language of section 128(1)—which essentially restates the common law—the privilege is claimed when: a witness objects to giving particular evidence or evidence on a particular matter, on the ground that the evidence may tend to prove that the witness: (a) has committed an offence against or arising under an Australian law or a law of a foreign country; or (b) is liable to a civil penalty.40

The ‘tend to prove’ test will clearly be satisfied if the evidence sought to be adduced would directly or circumstantially implicate the witness in a criminal or civil offence. This will also be the case where the answer to the question, though seemingly innocent in itself might, in combination with other evidence, lead to the incrimination of the witness.41 At common law, the privilege is also available if the evidence, while not incriminating in itself, could lead to the discovery of incriminating evidence.42 The fact that the certificates—which can be granted under the legislation in lieu of the privilege—provide protection against the use of evidence obtained as a consequence of a person having given evidence, strongly suggests that section 128 also applies to this form of incrimination.43 The privilege can thus be claimed whenever an answer to a question would have a tendency to expose the person claiming the privilege to the imposition of a civil penalty, or to conviction for a crime.44 However, the witness must object to giving the evidence, which means that a claim for the privilege cannot be made when one of the parties to the proceeding is giving evidence, and is being questioned in chief (or in re-examination) by his or her own counsel.45 A party cannot, therefore, seek to give evidence in one proceeding, while preventing it from being used in another proceeding by means of a certificate under section 128.

14.5.3 Determining the claim Once the witness has objected to a question on the grounds that the answer might be selfincriminating, the court must, pursuant to section 128(2), determine whether there are ‘reasonable grounds for the objection’. No legislative guidance is provided as to what constitutes reasonable grounds, so courts have turned to the common law, where the test is as follows: The danger … must be real and appreciable with reference to the ordinary operation of law in the ordinary course of things—not a danger of an imaginary and unsubstantial character, having reference to some extraordinary and barely possible contingency, so improbable that no reasonable man would suffer it to influence his conduct.46

39 Sections 128 and 128A will effectively apply to some pre-trial procedures requiring the production of documents, for the reasons discussed at [14.1.4]; where the legislation’s privileges do not apply, the common law privilege can be claimed instead. 40 A civil action will only be regarded as imposing a ‘civil penalty’ if its aim is to punish, rather than compensate; a fine imposed by statute is therefore a civil penalty; damages are not. 41 Application concerning Section 80 of the Supreme Court Act and Sections 119 and 128 of the Evidence Act [2004] NSWSC 614, [35]–[36] (Brownie JA). 42 Sorby v Commonwealth (1983) 152 CLR 291, 294 (Gibbs CJ), referring to Rank Film Ltd v Video Information Centre [1982] AC 380, 443 (Lord Wilberforce). 43 See s 128(7), discussed below at [14.5.4]. 44 See Blunt v Park Lane Hotel [1942] 2 KB 253. 45 Song v Ying [2010] NSWCA 237; (2010) 79 NSWLR 442. 46 R v Boyes (1861) 1 B & S 311, 330; 121 ER 730, 738; adopted by Giles JA in R v Bikic [2001] NSWCCA 537, [13]–[15].

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This is a question for the judge, and the witness may have to show the judge why it is that the answers would be incriminating. Although it is ultimately a question for the court: significant latitude must be given to the claimant of the privilege who is, after all, in a better position than the Court to know where the line of inquiry might lead … Furthermore the court must determine a claimant’s entitlement to the privilege as soon as the protection is claimed. It should do so without requiring the witness fully to explain how the effect would be produced, as the disclosure of matters required to substantiate the claim may have the consequence of causing the very mischief that the privilege seeks to prevent …47

A claim to privilege will obviously be rejected if the witness could not be tried for the offence, as he or she could not if he or she had already been convicted or acquitted of it. Similarly, if the evidence has already been disclosed in another context, then it is hard to see how any additional disclosure could increase the risk of conviction.

14.5.4 Overriding the privilege At common law, there is no provision allowing the courts to override a valid claim of privilege. The court must simply do without the evidence. The aims that justify the privilege could instead be met, however, by forcing the witness to answer the incriminating question, while ensuring that the incriminating answer could not be subsequently used against the witness. The uniform evidence legislation permits this variation. A witness can, under section 128(3), voluntarily exchange the protection provided by the privilege for the protection of a use-immunity certificate; and, if the court considers that ‘the interests of justice require the witness to give the evidence’, section 128(4) allows the court itself to substitute the one form of protection for the other. The court can, in other words, order a witness to provide incriminating evidence. This procedure is not available, however, if the offence or civil penalty arises under the law of a foreign country.48 Moreover, in proceedings to which the Commonwealth Act applies, a certificate granted under ‘a prescribed State or Territory provision’—such as section 128 of the New South Wales Act—has the same effect as one granted under section 128 of the Commonwealth Act.49 The uniform evidence legislation contains no guidance as to the criteria to be considered by the court in deciding whether or not ‘the interests of justice require the witness to give the evidence’. Presumably, this will turn on the importance of the evidence, whether it is possible to obtain the evidence other than from the witness, the likelihood of proceedings being instituted against the witness and the seriousness of the offence with respect to which the witness will be forced to incriminate himself or herself. In the Marriage of Atkinson, for example, concerned a property dispute in which the husband declined to give evidence regarding his sources of income and assets on the grounds that it might incriminate him. In holding that the husband should have been required to give this evidence, Lindenmayer J pointed to the importance of the provision by the parties of full and accurate information as to their financial circumstances, and to the wife’s inability to lead evidence in relation to her husband’s financial affairs. Baker J, on the other hand, in upholding the trial judge’s decision not to require the husband to give evidence, pointed to the trial judge’s conclusion that the ‘husband is not a witness in whom the Court would place great reliance’.

47 In the Marriage of Atkinson [1997] 136 FLR 347, 351 (Baker J). 48 Section 128(4)(a). 49 See s 128(12); without such a provision, it is difficult to see why a certificate granted in one jurisdiction would bind a court in another jurisdiction.

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R v Mayhew [2010] ACTSC 41 provides another example. In that case, the accused was charged with assaulting a woman with whom he had attended a Sydney rave party on the night before the alleged assault. The complainant was a nursing assistant and was intending to pursue a career in nursing. The accused applied for an order under section 128(4) to compel her to say whether or not she had taken five ecstasy tablets on the night of the rave, some sixteen hours before the alleged assault. The complainant declined to answer on the grounds of self-incrimination. The accused argued that the evidence was relevant to the reliability of the complainant’s account of events. Rares J noted that the accused did not propose to call any evidence about the pharmacological effects of ecstasy on the accuracy of a person’s perception or recollection of events, and that such generalised evidence is often of little probative value in any event. On the other hand, Rares J was not satisfied that it would be possible to protect the complainant from all of the possible career consequences of requiring her to make such a disclosure; and that the issues before the jury could be resolved without it. Accordingly, he refused to order the complainant to answer the question Where such a certificate is granted, neither the evidence given by the person with respect to which the certificate was granted, nor evidence ‘of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence’ can be used against the person in Australian proceedings.50 In other words, the certificate confers both ‘direct-use’ and ‘derivative-use’ immunity. The derivative-use immunity renders inadmissible any evidence that was discovered as a result of the witness’s testimony. Nevertheless, the mere fact of disclosure by the witness is likely to open up avenues of investigation that might not otherwise have been considered, and, if proceedings are eventually brought against the witness, difficult questions will arise in relation to whether or not any of the evidence tendered by the prosecution was obtained as ‘a direct or indirect consequence of the person having given evidence’.

14.5.5 Criminal defendants The privilege against self-incrimination, as discussed here, is not available to the defendant in criminal proceedings, in relation to evidence addressing the question of whether the defendant committed the crime charged. Section 128(10) thus provides that: In a criminal proceeding, this section does not apply in relation to the giving of evidence by a defendant, being evidence that the defendant: (a) did an act the doing of which is a fact in issue; or (b) had a state of mind the existence of which is a fact in issue.

The effect of this provision is that, if a criminal defendant chooses to testify, then subject to the rules discussed in Chapter 12: Character, he or she cannot be required to only answer questions about the events constituting the offence, but may also be required to answer questions about other acts or events being relied upon to prove the commission of the offence. In Cornwell v The Queen, for example, the accused was charged with conspiring to import cocaine. As part of its case regarding the conspiracy to import, the prosecution relied on evidence suggesting that the accused was involved in the business of supplying drugs. The trial judge held that this evidence was relevant on the basis that: A person involved in the drug trade has to obtain his supplies from somewhere. When that trade is as substantial as appears to be that in which the accused was involved, it is well open to the jury to find that

50 Section 128(7).

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the accused would be a participant in a conspiracy to obtain a substantial amount of drug for the purpose of carrying out the trade in which he was involved.51

The High Court held that the words of section 128(10) were ‘not limited to direct evidence that the defendant did the act or had the state of mind; they extend also to the giving of evidence by the defendant of facts from which the doing of the act or the having of the state of mind can be inferred’.52 For the reasons given by the trial judge, the evidence of supply was evidence that the accused had conspired to import cocaine. Accordingly, the accused could not claim the privilege in response to questions about his involvement in the supply of drugs, because it was indeed ‘evidence that the defendant … did an act the doing of which is a fact in issue’. However, where a defendant can claim the privilege but is instead granted a certificate pursuant to section 128(5), then the certificate has no operation in proceedings that are a retrial of the proceedings in which the certificate was granted.53

14.5.6 Corporations As we have seen, the privilege against self-incrimination is considered by the courts to be a distinctively human right; because of this, the High Court has held that it cannot be claimed by corporations.54 By virtue of section 187, the position is the same under the uniform evidence legislation. This does not, of course, mean that an officer or employee of a corporation can be compelled to incriminate themselves personally; it simply means that they cannot claim the privilege against self-incrimination, on the basis that their answer may lead to the incrimination of the corporation of which they are an officer or employee.

14.6 EVIDENCE OF MATTERS OF STATE Section 130 of the legislation creates an exclusionary rule for ‘evidence of matters of state’. The rule is closely based on the common law doctrine of public interest immunity and, like the doctrine of public interest immunity, requires the court to engage in an exercise in which it balances two competing aspects of the public interest. Although section 130 is, in terms, a rule of evidence; in New South Wales and Victoria, its application is extended to the pre-trial context by virtue of section 131A. In all other contexts, public interest immunity continues to operate. The common law and the uniform evidence legislation versions of the doctrine are, however, substantially similar.

14.6.1 The nature of section 130 Although included in Part 3.10—Privileges, section 130 differs from traditional rules of privilege in two fundamental respects. First, it is not personal; it belongs to no one, and cannot be waived. Indeed, even if no one objects to the adducing of the information or document in question, it is still open to the court, acting on its own motion, to determine whether or not it should be excluded

51 See Cornwell v The Queen [2007] HCA 12; (2007) 231 CLR 260, [7]. 52 Cornwell v The Queen [2007] HCA 12; (2007) 231 CLR 260, [84] (Gleeson CJ, Gummow, Heydon and Crennan JJ). 53 Section 128(9). 54 Environmental Protection Authority v Caltex [1993] HCA 74; (1993) 178 CLR 477. Following Caltex, the Federal Court held that corporations were also unable to claim the related privilege against exposure to a civil penalty: Trade Practices Commission v Abbco Ice Works Pty Ltd [1994] FCA 1279; (1994) 52 FCR 96.

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on public interest grounds.55 Moreover, once an issue is raised under section 130, whether by the court, by the parties or by the person from whom the information or document is sought, the court may ‘inform itself in any manner it thinks fit’;56 the court is not, in other words, restricted to the material presented by the parties. Second, the court must reach its decision about whether or not the information, or document, is inadmissible under section 130 in a completely different way from that by which it decides the validity of a claim to privilege. In general, if a claim to privilege is valid, then it must be upheld, no matter how great the interest of the party seeking to obtain the information. With section 130, on the other hand, the court must engage in a balancing exercise in which it decides, on a case-by-case basis, which of two public interests is greater: the public interest in preserving the secrecy or confidentiality of the information or document; or, the public interest in admitting it into evidence. Section 130(1) therefore states the rule in the following way: 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 actual balancing exercise is, however, only the last of the following steps, which must be taken whenever an issue under section 130 arises: 1

2

3 4 5 6

The court must decide whether—questions of public interest aside—the information or document sought is likely to be relevant to the issues at the trial. If the issue arises in the context of discovery, the question will be whether the documents sought contain information that would (or that could lead to a chain of inquiry that would) advance the case of the party seeking disclosure or damage that of its opponent. The person seeking to withhold the information should identify a public interest that, in its view, requires that the information sought should be held to be immune from disclosure. Consistent with the principle that the public interest is not personal, the court may instead do this of its own motion. The court must decide whether or not this is a ‘valid’ public interest; that is, decide whether or not there really is a recognisable public interest in non-disclosure. The court must weigh the public interest in non-disclosure. The court must weigh the public interest in disclosure. Finally, the court must decide whether the balance of public interest favours disclosure or non-disclosure.

14.6.2 The interest in non-disclosure Although the categories of public interest are not closed, there are several well-recognised public interest arguments for non-disclosure. These arguments, recognised at common law, have been reproduced in section 130(4) of the uniform evidence legislation, which provides a non-exhaustive list of the kinds of information or documents that can be held to relate to matters of state. The fact that the claimed public interest in non-disclosure has been recognised as valid does not, of course, mean that the information or document will necessarily be held to be immune from disclosure in the particular instance; it simply means the court will recognise that there is something to weigh against the public interest in ensuring that the parties and the court have access to all

55 Section 130(2); see also Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1. 56 Section 130(3).

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relevant information. The categories discussed below apply both to section 130 of the uniform evidence legislation and under public interest immunity at common law. The onus is on the party claiming immunity to make the case. In R v Debono,57 Kyrou J referred approvingly to the following comments made in Victoria v Brazel:58 The claim for immunity must be articulated with rigour and precision, and supported by evidence demonstrating the currency and sensitivity of the information, so as to constitute a compelling case for secrecy. Anything else will be unlikely to suffice.59

14.6.2.1 Class claims and contents claims There is a ‘rough but accepted’ division between ‘class’ claims for immunity, and ‘contents’ claims for immunity.60 This division serves to differentiate between ‘those documents the disclosure of which would be injurious to the public interest, whatever the contents, from those documents which ought not to be disclosed because of the particular contents’.61 High-level government documents, discussed at [14.6.2.2] under the heading ‘National security and intergovernmental relations’, provide a common example of a class claim for immunity. The submarine plans in Duncan v Cammell Laird [1942] AC 624, discussed below, are an example of a contents’ claim. The division is, however, a very rough one.

14.6.2.2 National security and intergovernmental relations Section 130(4)(a) provides that information or a document relates to matters of state if adducing it as evidence would ‘prejudice the security, defence or international relations of Australia’. In addition, section 130(4)(b) provides that information or a document relates to matters of state if adducing it as evidence would ‘damage relations between the Commonwealth and a State or between two or more States’. The submission of a ministerial affidavit to the effect that the disclosure of information or a document might have such an effect is not conclusive; it is still a question for the courts to determine where the balance of public interest lies. Nevertheless, the courts are likely to give a great deal of weight to such an affidavit. Duncan v Cammell Laird [1942] AC 624 provides an example of a document, the disclosure of which could prejudice national security. In this case, the plaintiffs in a negligence action arising out of the accidental sinking of a British submarine sought copies of the submarine’s plans from the manufacturer. Given the wartime context of the litigation, it should hardly have been surprising that the claim was rejected on the grounds that disclosure of the submarine’s plans might have jeopardised national security.

14.6.2.3 The functioning of government Section 130(4)(f) provides that information or a document relates to matters of state if adducing it as evidence would ‘prejudice the proper functioning of the government of the Commonwealth or a State’. This is arguably the broadest of the listed categories. It clearly covers high-level government documents, such as Cabinet minutes and papers, memoranda between ministers and their

57 58 59 60 61

[2012] VSC 476; (2012) 225 A Crim R 585. (2008) 19 VR 553, [68]. [2012] VSC 476; (2012) 225 A Crim R 585, [28]. Burmah Oil v Bank of England [1980] AC 1090, 1111 (Lord Wilberforce). Commonwealth v Northern Land Council [1993] HCA 24, [7]; (1993) 176 CLR 604, 615 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ).

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departmental heads, and policy papers for consideration by ministers.62 Several arguments are used to justify non-disclosure of such documents: •

•

• •

in relation to documents prepared by public servants, the ‘frankness and candour’ argument; that is, knowledge that such documents are liable to subsequent disclosure might ‘discourage candour on the part of public officials in their communications with those responsible for making policy decisions’;63 in relation to documents recording Cabinet deliberations, that the possibility of disclosure might impede the deliberations by ‘muting a free and vigorous exchange of views or by encouraging lengthy discourse engaged in with an eye to subsequent public scrutiny’;64 that the doctrine of ‘collective responsibility could not survive in practical terms if Cabinet deliberations were not kept confidential’; and in relation to any high-level government document, that disclosure might expose the government to ‘criticism of a premature, ill-informed or misdirected nature and [so] divert the process from its proper course’.65

Whether secrecy really is essential to good government is, of course, more a question of political philosophy than one of law. Be that as it may, in the Northern Land Council case, the High Court suggested that where Cabinet deliberations are concerned, ‘only considerations which are indeed exceptional would be sufficient to overcome the public interest in their immunity from disclosure’.66 The court also questioned: whether the disclosure of the records of Cabinet deliberations upon matters which remain current or controversial would ever be warranted in civil proceedings. The public interest in avoiding serious damage to the proper working of government at the highest level must prevail over the interests of a litigant seeking to vindicate private rights. In criminal proceedings the position may be different. Thus, the necessary exceptional circumstances may exist in cases involving allegations of serious misconduct on the part of a Cabinet minister. Sankey v Whitlam (1978) was such a case.67

This ground is not, however, restricted to high-level government documents. Indeed, it is arguably not even restricted to documents sought from the government. In Aboriginal Sacred Sites Protection Authority v Maurice [1986] FCA 90; [1986] 10 FCR 104, for example, the Federal Court was willing to recognise that there was a public interest in maintaining the confidentiality of information provided to an independent statutory authority in performance of its statutory obligations. Where lower-level governmental interests are concerned, however, the court may give significantly less weight to the public interest in non-disclosure, in comparison to cases involving high-level government documents.

62 See Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 and Commonwealth v Northern Land Council [1993] HCA 24; (1993) 176 CLR 604. 63 Commonwealth v Northern Land Council [1993] HCA 24, [5]; (1993) 176 CLR 604, 615 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ). 64 Commonwealth v Northern Land Council [1993] HCA 24, [6]; (1993) 176 CLR 604, 615 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ). 65 Commonwealth v Northern Land Council [1993] HCA 24, [6]; (1993) 176 CLR 604, 615 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ). 66 Commonwealth v Northern Land Council [1993] HCA 24, [9]; (1993) 176 CLR 604, 618 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ). 67 Commonwealth v Northern Land Council [1993] HCA 24, [10]; (1993) 176 CLR 604, 618 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ).

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14.6.2.4 Investigation and prosecution Section 130(4)(c), (d) and (e) of the uniform evidence legislation provide, respectively, that information or a document relates to matters of state if adducing it as evidence would: • • •

‘prejudice the prevention, investigation or prosecution of an offence’; or ‘prejudice the prevention, or investigation of, or the conduct of proceedings for recovery of civil penalties brought with respect to, other contraventions of the law’; or ‘disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State’.

The most important of these three heads of immunity is undoubtedly the last. This reflects a longrecognised common law rule that the police need not disclose the identity of their informers. The justification for this rule is twofold: first, to protect the particular informer concerned from the possibility of retaliation; and second, to ensure that people continue to be willing to come forward with information. If the police are unable to guarantee anonymity to their informers, then clearly their supply of information may dry up, and the ability of the police to enforce the law will be correspondingly diminished. Police informers are the most common example of informers whose identity may be protected, but neither the common law nor the uniform evidence legislation is restricted to police informers. In D v NSPCC [1978] AC 171, for example, the House of Lords recognised that there was a public interest in maintaining the anonymity of those providing confidential information to the National Society for the Prevention of Cruelty to Children, a voluntary organisation whose role in bringing child abuse proceedings had been recognised by legislation. Given its role in enforcing child abuse legislation, the NSPCC case would clearly fall within the scope of section 130(4)(e). Cases where the police claim immunity from disclosure, for the identity of people who have made their premises available for the carrying out of surveillance operations—such as R v Johnson [1988] 1 WLR 1377—would also, presumably, fall within the scope of either section 130(4)(c) or (e). At common law, there is conflicting authority on the question of whether the claim for immunity is absolute in the case of police informers, or is subject to the same balancing process as other areas of public interest immunity. At common law, it is sometimes said that the identity of police informers is exempt from the balancing process, and that the identity of such informers is only to be disclosed in the rare case where such disclosure could help to establish the defendant’s innocence.68 Section 130, however, clearly endorses the contrary view: that the competing public interests must always be balanced against each other, albeit that the balance may almost invariably come down in favour of non-disclosure.

14.6.2.5 Novel public interest claims The categories of recognisable public interest are not closed; in other words, the fact that a particular public interest has not been recognised in any previous cases is not necessarily fatal to a claim for non-disclosure. For this reason, the drafters of the uniform evidence legislation were careful to ensure that the list of public interest arguments contained in section 130(4) was a non-exhaustive list. There is, however, one aspect of the section 130 wording that appears to narrow the area in which future public interest claims for non-disclosure could be developed. This is the limitation suggested by the use of the phrase ‘matters of State’. This tends to suggest that the only kind of

68 See Cain v Glass (No 2) (1985) 3 NSWLR 230; Attorney General for New South Wales v Smith [1996] 86 A Crim R 308; and R v Mason [2000] SASC 161; (2000) 77 SASR 105.

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public interest argument that can be recognised is one relating to the functioning of government. The common law is not so restricted. This means that if the Australian Law Reform Commission’s stated intention to ‘interfere as little as possible with the common law’69 is to be given effect, then the phrase ‘matters of State’ will need to be interpreted broadly.

14.6.3 The interest in disclosure If there is a recognised interest in non-disclosure, then the next step is to consider the interest in disclosure. This interest has two aspects. The first is the requirement that, as a matter of procedural fairness, the courts should take into account all relevant material. Failure to do so clearly has the capacity to undermine the integrity of the administration of justice in that it may give rise to doubts over whether justice has been done. But it is not only the administration of justice that may be harmed: the party seeking the information would also clearly be harmed if the court reached a different verdict from that which it would have reached if all relevant information had been available. For this reason, the interest in disclosure will always depend on the contents of the information or documents sought. The more likely it is to have an effect on the outcome of the case, the greater the interest in disclosure will be. The interest in disclosure is also particularly strong when the matter to be decided by the court concerns the innocence or guilt of a person charged with a crime. Indeed, in criminal cases, the interest in disclosure is so strong that it was for a time doubted in England that a claim for public interest immunity could ever be made in criminal proceedings. And, it was suggested by Murphy J in Alister v The Queen, that if ‘the public interest demands that material capable of assisting an accused be withheld, then the proper course may be to abandon the prosecution or for the court to stay proceedings’.70

14.6.4 The balancing exercise Without limiting the matters that a court can take into account in weighing, and then balancing, the competing public interests, section 130(5) stipulates that the court must consider the following: (a) the importance of the information or the document in the proceedings; (b) if the proceeding is a criminal proceeding—whether the party seeking to adduce evidence of the information or document is a defendant or the prosecutor [the interest of a defendant in proving innocence will be given greater weight than the interests of the prosecution in proving guilt]; (c) the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceedings [the more serious the subject matter of the proceedings, then the greater the interest in disclosure will be]; (d) the likely effect of adducing evidence of the information or document, and the means available to limit its publication [this factor relates to the weight of the interest in non-disclosure]; (e) whether the substance of the information or document has already been published [if it has, then the interest in non-disclosure is likely to be of little weight]; (f) if the proceeding is a criminal proceeding and the party seeking to adduce evidence of the information or document is a defendant—whether the direction is to be made subject to the condition that the prosecution be stayed [if it is to be stayed, then a court will clearly feel more comfortable in upholding the claim for non-disclosure].

69 Australian Law Reform Commission, Evidence (Interim), Report No 26 (2005) Volume 1, [864]. 70 Alister v The Queen [1984] HCA 85, [20]; (1984) 154 CLR 404, 431 (Murphy J).

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14.6.5 Court inspection If in doubt about whether or not to order disclosure, the court can always inspect the documents. Indeed, it will often be difficult for a court to assess the strength of the interest in either disclosure or non-disclosure without knowing what the documents actually contain. In Alister v The Queen, the High Court therefore ordered certain Australian Security Intelligence Organisation documents to be produced for court inspection before declaring that the documents did not in fact contain material that would assist the defence case. The court did so without the assistance of counsel, a procedure objected to by Murphy J who argued that the significance of the documents might only have been apparent to counsel. In Commonwealth v Northern Land Council, however, the High Court took the same approach as in Alister, criticising a decision by Jenkinson J in the Federal Court to order Cabinet documents to be produced for inspection by the legal representatives of the Northern Land Council. The High Court indicated that if inspection had been appropriate—and the court did not think it was—it should have been carried out by the court alone.

14.7 EVIDENCE OF SETTLEMENT NEGOTIATIONS The efficient administration of justice depends on the fact that the vast majority of civil proceedings are settled. If most proceedings were not settled, the courts would become hopelessly clogged. In order for there to be settlement, there must clearly be negotiation. If statements made during negotiation were not privileged, then no one would be willing to negotiate. This is because a defendant’s offer to settle a civil action could be construed as an admission of liability, while a plaintiff ’s offer to settle for less than the amount sought could be construed as an admission in relation to the quantum of damage, or in relation to the merits of the case. If, when negotiations broke down, such offers were admissible in evidence, then obviously no one would make them. Because of this, the public interest in the administration of justice requires that settlement negotiations be immune from disclosure. Under the uniform evidence legislation, the provision that gives effect to this public interest is found in Division 3—Evidence excluded in the public interest. Although section 131 is headed ‘Exclusion of evidence of settlement negotiations’, the fact that the exclusionary rule in section 131 can be waived by consent means it is appropriate to refer to a ‘privilege’ for settlement negotiations. The privilege applies to communications between people in dispute that were made in connection with a genuine attempt to negotiate a settlement of the dispute.71 The privilege also applies to communications between one of the parties to the dispute and a third party, and to documents, whether delivered or not, that were made or prepared for the above purpose.72 The privilege can only apply if there is actually a dispute. For example, if one party acknowledges that indebtedness to another, but seeks some indulgence in paying the debt back, there is no dispute between the parties, and any correspondence about payment will be admissible.73 There is no magic in the words ‘without prejudice’. The use of this phrase will not privilege a communication that was not made for the purposes of negotiating a settlement; equally, failure

71 Section 131(1)(a). 72 Section 131(1)(a) and (b). 73 See Bradford & Bingley plc v Rashid [2006] 4 All ER 705, [84]–[86]; and Smith v Gould (No 1) [2012] VSC 210 , [23] (Dixon J).

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to use this phrase will not be fatal to a claim of privilege.74 So, for example, a letter headed ‘without prejudice’, which suggested a willingness to settle but did not make a specific proposal for compromise was held to fall outside the scope of the privilege, because it was not an attempt to negotiate a settlement.75 The privilege is limited to attempts to negotiate a settlement of civil disputes and does not apply to communications aimed at settling criminal proceedings such as plea negotiations.76 However, the privilege does apply in any subsequent legal proceedings, whether civil or criminal, and whether or not the proceedings involve the parties to the original negotiations. In New South Wales and Victoria, the operation of the privilege is also extended to the pre-trial context.77 The privilege is a joint privilege belonging to all parties to the negotiations and can only be waived with the consent of all such parties.78 The privilege can also be lost in a number of other ways, including (as with client legal privilege) where the communication was made in furtherance of the commission of a fraud, an offence, an act that renders a person liable to civil penalty, or a deliberate abuse of power.79

14.8 OTHER PRIVILEGES The legislation also contains two further privileges, which need not be discussed in any detail: • •

the exclusion in section 129 for evidence of reasons for judicial and other decisions; and the privilege in section 127 for religious confessions. The privilege is that of the clergy member, who is ‘entitled to refuse to divulge’ the fact, or the contents of a confession they have received. The phrase ‘religious confession’ is defined in section 127(4) to mean ‘a confession made by a person to a member of the clergy in the member’s professional capacity according to the ritual of the church or religious denomination concerned’.

In addition, in Victoria, Tasmania, and the Northern Territory, there are privileges applying to certain communications between doctors and patients.80 However, these privileges can only be claimed in civil proceedings.

74 75 76 77 78 79 80

See Rodgers v Rodgers [1964] HCA 25; (1964) 114 CLR 608. GPI Leisure Corporation v Yuill (1997) 42 NSWLR 225. Section 131(5)(b). Section 131A: see [14.1.4] above. Section 131(2)(a) and (b). Section 131(2)(j) and (k). See Evidence (Miscellaneous Provisions) Act 1958 (Vic), s 28; Evidence Act 2001 (Tas), s 127A; and Evidence Act 2011 (NT), s 12.

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SUMMARY At both common law and under the uniform evidence legislation: • • •

the law of privilege allows a person from whom information is sought to resist what would otherwise be a compulsory request for disclosure; the information may be sought in the form of either an answer to a question or the production of a document; and several of the privileges in Part 3.10 are personal, which means that privilege may be waived by the privilege-holder, and only by the privilege-holder.

Professional confidential relationship privilege In New South Wales, Tasmania, and the ACT: • •

there is a general privilege for professional confidential relationships; and the privilege involves a balancing exercise.

Journalist privilege In the Commonwealth, New South Wales, Victoria, and the ACT: • •

there is a privilege designed to protect journalists’ sources; and the privilege can be overruled in the public interest.

Sexual assault counselling privileges In New South Wales, Victoria, Tasmania, the ACT, and the Northern Territory: •

•

there are provisions designed to deal specifically with the production and adducing of evidence of communications made by, or to, a sexual assault victim during the course of counselling or therapy; and in applying these provisions, the court is required to balance a variety of conflicting interests in deciding whether or not to order the production of the protected evidence or grant leave for it to be adduced.

The privilege against self-incrimination Both at common law and under the uniform evidence legislation, the privilege against self-incrimination: •

• •

allows a witness to refuse to answer a question if the court is satisfied that the answer to the question would have a tendency to expose the witness to the imposition of a civil penalty or to conviction for a crime; is regarded as a human right and cannot be claimed by corporations; and under the uniform evidence legislation, the court may, if satisfied that the interests of justice require this, order a witness to answer an incriminating question. If the court does so, it must grant the witness a certificate preventing the use of the answer or of any information obtained as a consequence of the answer from being used against the witness in an Australian court.

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Exclusion of evidence of matters of state Section 130, which is based on the common law doctrine of public interest immunity, is fundamentally different from a traditional privilege in two respects: • •

first, public interest immunity is not personal (and therefore need not be claimed and cannot be waived); and second, a claim of public interest immunity is determined on the basis of a balancing exercise involving the competing public interests in disclosure and non-disclosure.

In carrying out this balancing exercise: • •

the court must first determine whether there is a valid public interest in non-disclosure; and if the court is in doubt about whether or not to order disclosure, the court may choose to inspect the documents sought.

Privilege for settlement negotiations The privilege for settlement negotiations in section 131 of the legislation: • •

applies to communications between the parties to a civil dispute; and applies where the communications were made in connection with a genuine attempt to settle the dispute.

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15

INTRODUCTION This is the second of two chapters dealing with privileges, and its focus is on what is undoubtedly the most important of the privileges, namely client legal privilege. Client legal privilege, which is the subject of the provisions contained in Division 1 of Part 3.10, is based on a creation of the common law known as ‘legal professional privilege’. However, the privilege is actually that of the client, rather than the lawyer; and it is for this reason that the uniform evidence legislation renamed the privilege ‘client legal privilege’. Thus, sections 118 and 119 of the legislation begin with the words: ‘Evidence is not to be adduced if, on objection by a client …’ Although client legal privilege is primarily a rule of evidence, in every uniform evidence legislation other than the Commonwealth, its operation has been extended to the pre-trial context.1

15.1 JUSTIFICATION FOR THE PRIVILEGE The privilege represents the law’s solution to a conflict between two competing aims, both relating to the efficient administration of justice. The first is to ensure that parties and courts have all relevant material available to them. This both promotes settlement and, if the matter does proceed to trial, ensures that the court does not arrive at the wrong result, because of the fact that it has been deprived of relevant information. The second aim is to ensure that a lawyer is able to give the best and most accurate legal advice possible to his or her client; this aim will be achieved if the client feels free to confide in his or her lawyer, without any fear that if he or she discloses anything unfavourable to his or her case, then this might be passed on to his or her opponent. Recognition of the privilege gives paramountcy to this second aim. As Mason and Wilson JJ commented in Waterford v The Commonwealth, in relation to the common law version of the privilege: Legal professional privilege is the product of a balancing exercise between competing public interests whereby … the public interest in ‘the perfect administration of justice’ is accorded paramountcy over the public interest that requires, in the interests of a fair trial, the admission in evidence of all relevant documentary evidence.2

1 Section 131A: see the discussion in Chapter 14: Privileges, at [14.1.4]. This means that the common law doctrine of legal professional privilege continues to apply in non-curial contexts, and to pre-trial procedures in Commonwealth courts. 2 Waterford v The Commonwealth [1987] HCA 25, [8]; (1987) 163 CLR 54, 64–65 (Mason and Wilson JJ).

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The basic justification for allowing the privilege is therefore: the public interest in facilitating the application of the rule of law. Administration of the law is not the function of the courts alone. The law is administered more frequently and more directly by legal advisers than it is by judges. Legal professional privilege ensures that the law’s writ can run effectively whenever a legal problem arises or a person seeks to chart a course of conduct in conformity with the law.3

Client legal privilege has also been associated, by some judges, with the maintenance of fundamental human rights. Deane J, for example, commented that the privilege: plays an essential role in protecting and preserving the rights, dignity and freedom of the ordinary citizen—particularly the weak, the unintelligent and the ill-informed citizen—under the law.4

15.2 SCOPE OF THE PRIVILEGE Client legal privilege protects confidential communications and documents made or prepared for one of two privileged purposes. A number of elements of the privilege require more detailed analysis.

15.2.1 Confidential communications and documents In order to be protected by client legal privilege, the communication or document must be ‘confidential’. In relation to a communication, this means that the communication must have been made in circumstances such that the person who made it, or to whom it was made, was under ‘an express or implied obligation not to disclose its contents, whether or not the obligation arises under law’.5 With respect to a document, this means that the document must have been prepared in circumstances such that the person who prepared it, or for whom it was prepared, was under such an obligation. A document need not contain or record a confidential communication, in order to be confidential; for example, draft pleadings and other documents contained in a lawyer’s file are likely to be confidential, regardless of whether or not they record the client’s confidential instructions.6 Thus, privilege can protect documents that record legal work carried out by the lawyer, for the benefit of the client, even if they are never actually provided to the client; examples of such documents include research memoranda, chronologies, summaries of documents, and drafts.7 The definitions of ‘confidential communication’ and ‘confidential document’ direct attention to whether an obligation of confidentiality existed at the time, at which the communication was made, or document prepared. If such an obligation did exist at that time, then the fact that the communication or document may subsequently have been disclosed, will not change the fact that it is ‘confidential’ for the purposes of Division 1; although, it may mean that the privilege has been lost.8 It is not necessary that both parties to a communication be under an obligation not to disclose; it is sufficient if either the person making the communication or to whom it was made, 3 Carter v Managing Partner, Northmore Hale Davy & Leake [1995] HCA 33, [6]–[7]; (1995) 183 CLR 121, 127 (Brennan J). 4 Carter v Managing Partner, Northmore Hale Davy & Leake [1995] HCA 33, [5]; (1995) 183 CLR 121, 133 (Deane J). 5 Section 117(1). The word ‘document’ is defined very broadly in the Dictionary; the word ‘communication’ is not defined. 6 See Australian Law Reform Commission, Evidence (Final), Report No 38 (1987) [195]. 7 See AWB Ltd v Cole (No5) [2006] FCA 1234, [44]; (2006) 155 FCR 30, 46 (proposition (8)). 8 Loss of the privilege is discussed at [15.3].

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or the person preparing the document or for whom it was prepared, was under such an obligation. In determining whether either of such people was under such an obligation, the court will take into account: the nature of the relationship in question and the circumstances, including conduct and/or conversations, surrounding the communications or documents in question. It is also permissible to have regard to the nature of the documents in question and the purpose and context of their communication.9

In Raunio v Hills [2001] FCA 1831; (2001) 116 FCR 518, for example, the plaintiff ’s solicitor had made file notes of conversations between the solicitor and the defendant; the Federal Court held that these file notes were inherently non-confidential. On the other hand, in Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd [2006] FCA 21; [2006] ATPR 42-101, Goldberg J affirmed that a document recording a witness statement obtained by the solicitor for a party, can be regarded as confidential, even if the interests of the witness and the party in the litigation are adverse. Difficult questions can arise when the communication was made in the presence of a third party. In R v Braham and Mason [1976] VR 547, for example, it was held that this would not necessarily affect the confidential nature of the communication, provided that the third party’s presence was unavoidable. In In the Marriage of CW (1998) 22 Fam LR 750, by contrast, the presence of a third party who accompanied the wife, during her consultation with her solicitor, did mean that the communications between wife and solicitor could not be regarded as confidential. The wording of the definition contemplates that the obligation not to disclose need not be one  imposed by law; nor is it confined to ‘the type of obligation which arises in the course of a solicitor/client relationship’.10 The kind of obligation encompassed by the definition can thus ‘extend to an unspoken obligation, and to an ethical, moral or social obligation’.11 On the other hand, an entity that explicitly states on receiving information that it considered itself free to use the information ‘for its other functions or in other contexts’ is unlikely to be under an obligation not to disclose, regardless of what the person providing the information to them might have wished.12 Nor will a self-imposed decision to only use documents for certain limited purposes amount to an obligation not to disclose.13

15.2.2 The first privileged purpose—providing legal advice: section 118 A confidential communication or document will be privileged if it was made or prepared for one of two privileged purposes. The first privileged purpose is to enable a lawyer to provide legal advice to a client.14 ‘Legal advice privilege’, which is found in section 118, is the first limb of client legal privilege and it applies to: (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.

9 10 11 12 13 14

Rickard Constructions Pty Ltd v Richard Hails Moretti Pty Ltd [2006] NSWSC 234, [34]. Carnell v Mann [1998] FCA 1566; (1998) 89 FCR 247, 259. New South Wales v Jackson [2007] NSWCA 279, [41] (Giles JA). Seven Network Ltd v News Ltd [2005] FCA 864, [55] (Graham J). See New South Wales v Jackson [2007] NSWCA 279, [50] (Giles JA). See the discussion below of the terms ‘lawyer’ and ‘client’.

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In order to fall within the scope of this limb, the communication must have been made, or document prepared, ‘for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client’. The ‘dominant purpose test’ is discussed at [15.2.5] under the heading ‘The dominant purpose test’. Past decisions have taken a fairly flexible approach to the question of what constitutes ‘legal advice’. In AWB Ltd v Cole [2006] FCA 571; (2006) 152 FCR 382, Young J followed the House of Lords decision in Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2005] 1 AC 610, in accepting that: legal advice is not confined to telling the client the law but includes professional legal advice as to what should prudently and sensibly be done in the relevant legal context. Furthermore, in view of the House of Lords’ decision in Three Rivers, I also accept that legal advice includes professional advice given by lawyers to a client as to what evidence and submissions should be placed before a commission of inquiry.

However, not all advice provided by a lawyer is necessarily ‘legal’ in nature. Lawyers sometimes give commercial advice, and when they do so, their advice is not privileged. Thus, advice from a lawyer about the most commercially advantageous way to structure a transaction is unlikely to attract legal professional privilege. If a letter of advice contained both legal and commercial advice, then the parts of the letter containing legal advice would be privileged, and the parts containing commercial advice would not. Similarly, in the Australian Wheat Board inquiry, a draft statement of contrition prepared on behalf of the AWB was not privileged, even though the AWB’s solicitors were very heavily involved in discussions about it.15 The legal advice limb of client legal privilege is narrower than the second limb of the privilege—litigation—in one important respect: it does not cover confidential communications between the client or lawyer on the one hand, and a third party on the other. However, since the 2008 amendments, it does cover confidential documents prepared by a third party, such as expert reports.16 This amendment brought the legislation into line with developments in the common law and, in particular, the decision of the Full Federal Court in Pratt Holdings Pty Ltd v Commissioner of Taxation. In this case, Finn J began his judgment with the following observations: It is well accepted that if a person prepares and then makes a documentary communication to a legal adviser for the dominant purpose of obtaining legal advice, that documentary communication attracts legal professional privilege: Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth (1999) 201 CLR 49. It is equally well accepted that if a person directs or authorises a third party (‘an agent’) to prepare and then make a documentary communication on that person’s behalf to a legal adviser for the dominant purpose of obtaining legal advice, that documentary communication by the agent attracts legal professional privilege: Australian Rugby Union Ltd v Hospitality Group Pty Ltd (1999) 165 ALR 253. But it is not accepted that, if a person (‘a principal’) directs or authorises a third party who is not an employee of that person to prepare a documentary communication for the dominant purpose of its being communicated by the principal and not directly by the third party to a legal adviser for the purpose of obtaining legal advice, that documentary communication from the third party to the principal attracts legal professional privilege.17

In the case itself, Pratt Holdings was the ultimate holding company of a corporate group that underwent a major balance sheet reconstruction and refinancing program between 1990 and 1995. As part of that process, it sought the advice of a firm of solicitors, Arnold Bloch Leibler (ABL), on the tax implications of the restructure. ABL advised Pratt Holdings to obtain a valuation of 15 See AWB Ltd v Cole [2006] FCA 571; (2006) 152 FCR 382. 16 See Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005) [14.122]. 17 Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122, [1]; (2004) 136 FCR 357, 359 (Finn J).

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assets from an independent accounting firm. Pratt Holdings did so, engaging Price Waterhouse, and informing them of the purpose of the valuation. Price Waterhouse provided the valuation to Pratt Holdings, rather than to ABL, and Pratt Holdings then passed it on to ABL. If Pratt Holdings’ in-house accountants had prepared such a report, it would have been privileged. Likewise, if Pratt had directed Price Waterhouse to send the report directly to ABL, then Price Waterhouse would have been constituted as Pratt’s agents for the purpose of making the communication, and it would have been privileged. In these circumstances, the Full Court thought it overly artificial to deny the report privilege, and extended the common law privilege. Following the 2008 amendments, the report would now also be privileged under section 118(c). It is important to note, however, that any oral communications between the client or lawyer, and the third party, would still not be privileged.

15.2.3 The second privileged purpose—litigation: section 119 A confidential communication or document will also be privileged if it was made or 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 way, or might have been, a party.18

The phrase ‘professional legal services’ is not defined. It will, however, include the following: • • •

legal advice and representation; the preparation or settling of documents to be used in, or in connection with, litigation, such as a witness statement;19 and estimates of the likely outcome or cost of litigation.20

Litigation is anticipated or pending where it is actually contemplated; a mere apprehension or recognition that litigation is possible does not mean that it is ‘anticipated’.21 This means that, where a communication is said to have been made for the dominant purpose of litigation, either the litigation must have been commenced, or there must be a reasonable probability or likelihood that such proceedings would be commenced. In this regard, communications made, or documents prepared, for the purposes of investigation, including a decision as to whether or not proceedings should be commenced, may have difficulty in satisfying the dominant purpose test.22 Communications between the lawyer and client, or between two or more lawyers acting for the client, in relation to litigation will fall within the protection of the legal advice limb of the privilege. Section 119 extends the protection of client legal privilege to cover communications and documents that fall outside the scope of section 118, when they are made or prepared for

18 Section 119. 19 See New Cap Reinsurance Corp Ltd (in liq) v Renaissance Reinsurance [2007] NSWSC 258, [28] (White J). 20 See 789Ten Pty Ltd v Westpac Banking Corp Pty Ltd [2005] NSWSC 123, [44]; (2005) 215 ALR 131, 142 (Bergin J). 21 See Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd [1998] FCA 237; (1998) 81 FCR 526, 558–62 (Goldberg J). 22 See Australian Consumer and Competition Commission v Australian Safeway Stores Pty Ltd [1998] FCA 237; (1998) 81 FCR 526, and D’Ambrosio v Berkeley Challenge Pty Ltd [1997] ACTSC 35.

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the purpose of litigation. Section 119 thus brings the following within the scope of client legal privilege: • •

a confidential communication between the client and another person, or between a lawyer acting for the client and another person; and the contents of a confidential document (whether delivered or not) that was prepared by anyone.23

For example, a lawyer’s instructions to an expert preparing a report for use in litigation, as well as the report itself, would therefore fall within the scope of this limb of the privilege.

15.2.4 Unrepresented parties Under the uniform evidence legislation, there is also a privilege for documents relating to an unrepresented party’s own case. Section 120(1) permits an unrepresented party to object to the adducing of evidence that would result in the disclosure of: (a) a confidential communication between the party and another person; or (b) the contents of a confidential document (whether delivered or not) that was prepared, either by or at the direction or request of, the party …

The communication must have been made, or document prepared, for ‘the dominant purpose of preparing for or conducting the proceeding’. The privilege effectively picks up the third party aspect of the litigation limb of the privilege; however, unlike the litigation privilege, it only protects confidential communications and documents in the proceedings for the purpose of which they were made or prepared. It offers them no protection in other proceedings.

15.2.5 The dominant purpose test In some cases, it will be apparent that a communication may have been made or a document prepared for one or more of several purposes. For example, a report into the cause of a workplace accident might serve any or all of the following purposes: • • • •

for use in litigation arising out of the accident; to advise the client about its prospects in such litigation; to enable the client to understand what caused the accident; and to enable the client to take steps to avoid the repetition of such an accident.

The first two purposes would be privileged; the second two would not.24 The question will be whether it can be shown that either, or both, of the first two purposes was the dominant purpose for which the report came into existence. The onus of establishing this fact lies on the party claiming the privilege. Establishing dominance means more than just establishing that the privileged purpose was the most important purpose. According to Spigelman CJ, ‘[a] purpose can be “greater” without being “dominant” in the relevant sense. To say that an intended use was the most important use does not mean that it was dominant’.25 Rather, ‘a “dominant purpose” is one that predominates over other purposes; it is the prevailing or paramount purpose’.26 23 Confidential communications between the client and the lawyer do not fall within the scope of this limb of the privilege, even if they relate to litigation; they would, however, fall within the scope of the legal advice limb of the privilege. 24 For an example of such a case, see Sydney Airports Corp Ltd v Singapore Airlines [2005] NSWCA 47. 25 Sydney Airports Corp Ltd v Singapore Airlines [2005] NSWCA 47, [49]. 26 AWB Ltd v Cole (No 5) [2006] FCA 1234, [44]; (2006) 155 FCR 30, 44 (Young J).

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In applying the dominant purpose test, an appropriate starting point is to ask what was the intended use or uses of the document, which accounted for it being brought into existence.27 The court will also take into account the stated intentions of the person who made the communication, and the identity of the person to whom the communication was made, and may wish to examine for itself any document that records the communication. Previous dealings between the parties to the communication may also be relevant. In the corporate or bureaucratic environment, the test is clearly an objective one, but the subjective intention of the person or people responsible for the document coming into existence (including both the procurer and the maker of the communication) is entitled to some weight (without being determinative). Where a communication may have been made pursuant to some established internal procedure, the intentions of the parties to a communication may be less significant than the purposes of that procedure.28 The mere fact that the communication is confidential, that it concerns litigation or legal advice, and that one of the parties to the communication is a lawyer will not necessarily mean that the communication is privileged. In Westpac Banking Corp v 789Ten Pty Ltd [2005] NSWCA 321; (2005) 55 ACSR 519, for example, the client bank instructed its solicitors to provide certain information to the bank’s auditors. The information concerned the bank’s prospects in litigation brought against it by 789Ten. The New South Wales Court of Appeal confirmed that the communications between the bank and its solicitors, and those solicitors and the bank’s auditors, were not privileged, as they were not made for one of the requisite purposes.

15.2.6 The making of an objection In order for the privilege to apply, an objection must be made by or on behalf of the client (or in the case of section 120, the party). Where a lawyer has acted for a client, it is part of the lawyer’s ordinary obligations to the client to claim privilege, unless instructed to waive it.29 If it appears to the court that a party or witness may have grounds for making an objection, then the court must satisfy itself that the witness or party is aware of the effect of the provisions under which an objection may be made.30

15.2.7 Client and lawyer Section 117(1) also contains definitions of both ‘client’ and ‘lawyer’. Without descending into the details, privilege will not apply where a person without a formal professional legal qualification is performing the functions of a lawyer, or where the adviser has not been admitted to practice, but has a law degree. It is not, however, part of the definition of ‘lawyer’ that a person must hold a current practising certificate. This is because the Australian Law Reform Commission concurred with the view of the ACT Court of Appeal that: it is the substance of the relationship that is important, rather than a strict requirement that the lawyer hold a practising certificate. It is at the time of admission that professional standards and obligations are conferred on a practitioner and it is these professional obligations that serve as a mark of the lawyer’s independence … 27 See Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122, [35]; (2004) 136 FCR 357, 366 (Finn J). 28 See Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67, [39], [73]–[77] (McHugh J); (1999) 201 CLR 49, 66, 77–8 (Gleeson CJ, Gaudron and Gummow JJ). See also Australian Competition and Consumer Commission v Australian Safeway Stores [1998] FCA 237; (1998) 81 FCR 526. 29 See Australian Law Reform Commission, Evidence (Interim), Report No 26 (2005) Volume 1, [883]. 30 Section 132.

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The impetus to limit the privilege to lawyers with current practising certificates may stem from fears that lawyers providing general policy or risk management advice might have the entirety of their work covered by the privilege. However … the dominant purpose test remains the ultimate limitation on the operation of the privilege.31

It is also clear from the definitions of ‘client’ and ‘lawyer’ that client legal privilege can apply when the ‘lawyer’ in question is actually the employee of the ‘client’; for example, an in-house corporate or government lawyer.32 The question will be whether the relationship between the lawyer and his or her employer can be characterised as one of lawyer and client, and whether the communication between them was made for one of the privileged purposes. Where in-house counsel also has operational, executive or managerial roles, the availability of privilege will depend on the capacity in which they are performing a particular act.

15.2.8 Copies of unprivileged documents At common law, the privilege protects copies of unprivileged documents, provided that the copy was made for one of the privileged purposes: Commissioner, Australian Federal Police v Propend Finance Pty Ltd [1977] HCA 3; (1977) 188 CLR 501. It seems unlikely that the same approach can be taken under the uniform evidence legislation, because sections 118(c), 119(b) and 120(b) refer to a confidential document being ‘prepared’ for one of the privileged purposes. Copying a document does not, in the authors’ view, constitute the ‘preparation’ of the copy.

15.3 LOSS OF PRIVILEGE A legally privileged document may lose its privilege in a number of ways: • • • • • •

where the removal of the privilege is necessary for some reason connected with the administration of justice, or with the rights of a person;33 waiver: where the person covered by privilege, acts in a manner that is inconsistent with the maintenance of privilege;34 where the evidence is being adduced by the defendant in a criminal proceeding;35 where two or more parties to the proceeding have previously jointly retained a lawyer in relation to the same matter;36 where the otherwise privileged communication was made, or document prepared, for an improper purpose;37 and where the communication or document is necessary to a proper understanding of another communication or document with respect to which privilege has been lost.38

We examine each of these ways of losing privilege in turn. 31 Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005) [14.96]–[14.97], endorsing the views expressed in Commonwealth v Vance [2005] ACTCA 35; (2006) 158 ACTR 47. 32 This is because the word ‘client’ is defined to include ‘an employer (not being a lawyer) of a lawyer’. For the position at common law, see Attorney-General for the Northern Territory v Kearney [1985] HCA 60, [10]–[14] (Dawson J); (1985) 158 CLR 500, 530–1; Waterford v The Commonwealth [1987] HCA 25, [3]–[4] (Mason and Wilson JJ), [2]–[6] (Deane J), [5] (Dawson J); (1987) 163 CLR 54, 61–2, 79–82, 95. 33 Section 121: loss of client legal privilege—generally. 34 Section 122: loss of client legal privilege—consent and related matters. 35 Section 123: loss of client legal privilege—defendants. 36 Section 124: loss of client legal privilege—joint clients. 37 Section 125: loss of client legal privilege—misconduct. 38 Section 126: loss of client legal privilege—related communications and documents.

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15.3.1 General loss of privilege Section 121 lifts privilege in three situations. The first, pursuant to section 121(1), is where the privileged information is ‘relevant to a question concerning the intentions, or competence in law, of a client or party who has died’. This provision operates ‘where an issue arises of, for example, testamentary capacity or the intentions of the deceased in a testator’s family maintenance case’.39 The second, pursuant to section 121(2), occurs in cases where, if the evidence was not adduced, ‘the court would be prevented, or it could reasonably be expected that the court would be prevented, from enforcing an order of an Australian court’. For example, in R v Bell; Ex parte Lees [1980] HCA 26; (1980) 146 CLR 141, a solicitor claimed privilege over information provided to him by his client, who had absconded with her child in breach of a Family Court custody order. Without this information, the court could not enforce the order, so the solicitor was compelled to disclose it. The third, pursuant to section 121(3), is where the evidence is of ‘a communication or document that affects a right of a person’. This provision only applies when the communication or document directly affects a right, not when it contains evidence relevant to such a right.40 An example of such a communication would be a secret trust.41 Odgers suggests that the following might also fall within the scope of section 121(3): • • • •

defamatory utterances; acts of bankruptcy; threats (amounting to a tort or crime); and contractual offers.42

15.3.2 Acting inconsistently with the maintenance of the privilege It is one of the characteristic features of a rule of privilege that it can be ‘waived’, but it can only be waived by the person to whom it belongs. Section 122 recognises two forms of waiver: first, where the client or party actually consents to the adducing in evidence of the privileged material;43 and, second, where the client or party ‘has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence’.44 The first form of waiver is seldom controversial and, in any event, is encompassed within the second. The primary focus of discussion will therefore be section 122(2). The current version of section 122(2) was introduced as part of the 2008 amendments, and was intended to import the common law test for waiver into the legislation.

15.3.2.1 The test of inconsistency At common law, and now under the legislation, waiver is the doing of an act that is inconsistent with the claim for confidentiality. An act of waiver can therefore be express or implied, intentional or unintentional. The most obvious example of an intentional waiver is where one party provides another party with a copy of a document that it knows to be privileged; if the party was unaware

39 Australian Law Reform Commission, Evidence (Final), Report No 38 (1987) [196]. 40 See Talbot v NRMA Ltd [2000] NSWSC 602, [3] (Hodgson CJ in Eq); and R v P [2001] NSWCA 473, [41] (Hodgson JA); (2001) 53 NSWLR 664, 679. 41 Australian Law Reform Commission, Evidence (Final), Report No 38 (1987) [196]. 42 S Odgers, Uniform Evidence, 8th edn, 2009, Sydney: Law Book Co/Thomson Reuters, [1.3.11080]. 43 Section 122(1). 44 Section 122(2).

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that the document was privileged, but provided the copy nevertheless, then this would be an example of an unintentional waiver. Few problems arise in relation to this kind of waiver. The large body of case law dealing with waiver is largely accounted for by the doctrine of ‘imputed’ waiver. Pursuant to this doctrine, a court may, in certain situations, hold that the way in which the party has acted, or conducted the litigation, would make it ‘unfair’ for it to maintain its claim to privilege over particular documents.45 In Mann v Carnell, Gleeson CJ, Gaudron, Gummow and Callinan JJ observed that: At common law, a person who would otherwise be entitled to the benefit of legal professional privilege may waive the privilege. It has been observed that ‘waiver’ is a vague term, used in many senses, and that it often requires further definition according to the context. Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege. Examples include disclosure by a client of the client’s version of a communication with a lawyer, which entitles the lawyer to give his or her account of the communication, or the institution of proceedings for professional negligence against a lawyer, in which the lawyer’s evidence as to advice given to the client will be received. Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is ‘imputed by operation of law’. This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. Thus, in Benecke v National Australia Bank (1993) 35 NSWLR 110, the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the barrister from giving the barrister’s version of those instructions. She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.46

The last sentence is important: the test is not one of fairness per se. Rather, fairness informs the question of whether there has been an inconsistency between the conduct of the party claiming the privilege, and the maintenance of confidentiality. There are a number of ways of acting that courts have frequently held to amount to an inconsistency of the type referred to in section 122(2).

15.3.2.2 Relying on part of a document A common example of an unintended waiver arises where a party seeks to rely on part of a document, without disclosing the remainder of it. The court will usually find that fairness to the other party requires that it be given access to the entire document, in order to place those parts relied on in their proper context.47 To use the language of section 122(2), relying on part 45 See Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475; and Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83. 46 Mann v Carnell [1999] HCA 66, [28]–[29]; (1999) 201 CLR 1, 13 (Gleeson CJ, Gaudron, Gummow and Callinan JJ). 47 In relation to this, and the next category, privilege might also be lost pursuant to s 126, which is discussed at [15.3.6].

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of a document is likely to be seen as acting in a way that is inconsistent with the client or party objecting to the adducing in evidence of the remainder of the document.

15.3.2.3 Relying on one in a series of documents Similar issues arise where a party seeks to rely on a single document that forms part of a related series of documents. The other party is likely to argue that in order to properly understand the document relied on, it should be given access to the rest of the documents in the series. This is sometimes referred to as ‘associated material’ waiver, according to which the ‘test applied to determine the scope of any waiver of associated material is whether the material that the party has chosen to release from privilege represents the whole of the material relevant to the same issue or subject matter’.48

15.3.2.4 Relying on an expert opinion that is based on privileged material Another example of an ‘inconsistency’ is provided by cases where a party seeks to adduce the evidence of an expert who has relied on privileged information in providing his or her opinion; reliance on the expert’s evidence will often result in waiver of privilege in any material the expert relied on or that may have influenced, or underpinned the content of the expert’s report.49 This is because there is an obvious unfairness, in seeking to rely on an expert opinion or report, while denying one’s opponent access to all of the material on which it is based.

15.3.2.5 Using a privileged document to revive memory Section 122(6) specifically provides that privilege over a document is lost where a witness has used the document to try to revive the witness’s memory about a fact or opinion, including using it as mentioned in sections 32 and 33 (discussed in Chapter 2: Witnesses, at [2.3.3.2] under the heading ‘Reviving memory’). The provision is not limited to attempts to revive memory in court, and does not require that the attempt to revive memory was successful.

15.3.2.6 Putting in issue a fact to which legal advice is relevant Another way of acting inconsistently with the maintenance of privilege is to place in issue a fact to which the privileged material is relevant. This is sometimes called ‘issue waiver’. The case of Benecke, referred to by the High Court in a passage from their judgment in Mann v Carnell reproduced above, is an obvious example of issue waiver. The rule may be stated as follows: Notwithstanding the high status of professional privilege and the careful protection which the law affords it, when the contents of a privileged communication become the subject of a legitimate and reasonable issue in the litigation, the privilege is lost.50

48 See AWB Ltd v Cole (No 5) [2006] FCA 1234, [164]; (2006) 155 FCR 30, 76. 49 See Mendelow, P, ‘Expert Evidence: Legal Professional Privilege and Experts’ Reports’ (2001) 75 Australian Law Journal 258; Dingwall v The Commonwealth [1992] FCA 627; (1992) 39 FCR 521; Interchase Corporation Ltd v Grosvenor Hill (Qld) Pty Ltd [No 1] [1999] 1 Qd R 141; Lampson v McKendry [2001] NSWSC 373; Spassked Pty Ltd v Commissioner of Taxation (No 4) [2002] FCA 491; Australian Competition and Consumer Commission v Lux Pty Ltd (2002) 50 ATR 70; [2003] FCA 89; Australian Securities and Investment Commission v Southcorp Ltd [2003] FCA 804; (2003) 46 ACSR 438; Gillies v Downer EDI Ltd [2010] NSWSC 1323; and Matthews v SPI Electricity Pty Ltd [2013] VSC 33. 50 Wardrope v Dunne [1996] 1 Qd R 224, 226 (Derrington J); see also Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86, [68]; (2006) 151 FCR 341, 361; and Liquorland (Australia) Pty Ltd v Anghie [2003] VSC 73,

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Another way of putting the rule is to say that ‘a party cannot put a matter in issue in litigation and at the same time use the privilege to deny to their opponent the very evidence that would determine the issue’.51 A common example is provided by pleadings, which allege that a party was misled by the conduct or representations of another party; in such a case, the nature of the advice they received may shed light on the question of whether they were in fact misled. In Ampolex Ltd v Perpetual Trustee (Canberra) Co Ltd & Others (1995) 37 NSWLR 405, for example, Ampolex was involved in litigation with GPG Nominees and Allied Holdings concerning the correct conversion ratio for convertible notes issued by Ampolex. Ampolex argued that the correct conversion ratio was 1:1. GPG Nominees and Allied Mutual Holdings, which had purchased a large number of the notes and given notices of conversion, argued that the correct conversion ratio was 6.6:1. The conflict arose out of a discrepancy between the original trust deed, the words of which were endorsed on the notes, and a supplemental deed. In their pleadings, GPG Nominees and Allied alleged that they had been led by Ampolex to believe that the notes were convertible on the basis set out in the trust deed and endorsed on the notes; that they purchased the notes and gave the notices of conversion in that belief; and, that Ampolex was estopped from departing from that position. Ampolex, on the other hand, alleged that at the times they acquired the notes, GPG Nominees and Allied believed that Ampolex mistakenly thought that the notes carried endorsements in conformity with the supplemental deed, and knew that Ampolex would not have registered the transfers of the notes to them, had it known of the mistake. In light of this, Ampolex was granted an order allowing it to inspect various documents for which privilege was claimed, including any legal advice the companies had received prior to the purchase of the notes. In cases where a party has pled a particular state of mind, the mere fact that they received legal advice roughly contemporaneously with the pled state of mind, will not necessarily mean that privilege is lost with respect to that advice. The courts have not yet recognised: a principle which would have the consequence that a client litigant’s plea of reliance in a negligent misstatement case, a misleading or deceptive conduct case or an estoppel case, ipso facto strips the privilege from legal communications which occurred about the time of the reliance. Furthermore, I am resistant to an argument that would have privilege waived in respect of any privileged document which might be relevant to the state of mind which has been pleaded into issue. To my mind, the putting in issue by the client of its relevant state of mind, whether it be one of reliance or otherwise, is merely the starting point for an examination of the waiver question. The chronological coincidence of the legal communication and the establishment of that state of mind does not of itself determine the question. The application of the test of unfairness, as expounded by the High Court, involves an examination of the precise nature of this pleaded state of mind and of the impact of the particular communication upon it. It is only where this examination shows that there will arise an unfair inconsistency between the position of the client setting up this state of mind and its maintenance of the privilege that waiver will arise and, then, only to the extent necessary to avoid the unfairness.52

15.3.2.7 Disclosing the substance of the evidence to another The essence of privilege is confidentiality. If a party provides a copy of its confidential legal advice to another person, then privilege is likely to be taken to have been waived. Section 122(3) thus adds a gloss to section 122(2) by providing that a client or party is taken to have acted inconsistently with their claim of privilege if:

[32]; (2003) 7 VR 27, 39 (Byrne J). 51 J Auburn, ‘Generalised Rules of Fairness in Evidence Law’ (2000) 63 Modern Law Review 104. 52 Liquorland (Australia) Pty Ltd v Anghie [2003] VSC 73, [41]; (2003) 7 VR 27, 42 (Byrne J); see also Chen v City Convenience Leasing Pty Ltd [2005] NSWCA 297, [41] (Gzell J).

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• •

the client or party knowingly, and voluntarily, disclosed the substance of the evidence to another person; or the substance of the evidence has been disclosed with the express or implied consent of the client or party.

If the disclosure was made by an employee or agent of the client or party, or their lawyer, then for the purposes of section 122(3)(a), the disclosure will only be knowing and voluntary if the employee or agent was authorised to make the disclosure. Section 122(5) further limits the operation of section 122(3) by providing that a client or party is not taken to have acted in a manner inconsistent with the claim of privilege ‘merely because’: •

•

•

the substance of the evidence was disclosed: – in the course of making a confidential communication or preparing a confidential document;53 or – as a result of duress or deception;54 – under compulsion of law;55 or – by a statutory body to the responsible Minister;56 or the client has disclosed to another person, and the disclosure concerns a matter in relation to which the same lawyer is providing professional legal services to both the client and the other person;57 or there has been a disclosure to a person with whom the client or party had a common interest relating to an existing, anticipated or pending proceeding.58

The effect of all of this is that disclosure of the substance of privileged material to another person will sometimes, but not always, result in the loss of the privilege in that material. There is a growing body of case law about what constitutes a ‘knowing and voluntary’ disclosure, but at the very least it does not include: a case where everything indicates an intention to claim privilege in respect of the document and what has gone wrong is attributable to sheer inadvertence or carelessness.59

In the corporate context, ‘disclosure’ of advice given to a corporation by one officer of the corporation to another officer will not constitute ‘disclosure to another person’.60 As to whether the ‘substance’ of advice has been disclosed, the test is ‘a quantitative one which asks whether there has been sufficient disclosure to warrant loss of the privilege’.61 As one judge has observed, what is required is ‘at least an express or implied summary of legal advice’.62 In Ampolex Ltd v Perpetual Trustee (Canberra) Co Ltd (1996) 40 NSWLR 12, for example, Ampolex had issued a statement to its shareholders giving its views about the likely outcome of the convertible note litigation referred to above. Ampolex stated that its views ‘have regard to the pleadings, the evidence available to Ampolex and the advice of the barristers and the solicitors engaged by Ampolex for the purposes 53 54 55 56 57 58 59

Section 122(5)(a)(i). Section 122(5)(a)(ii). Section 122(5)(a)(iii). Section 122(5)(a)(iv). Section 122(5)(b). Section 122(5)(c). Sovereign v Bevillesta [2000] NSWSC 521, [23] (Austin J); see also Divall v Mifsud [2005] NSWCA 447; and Unsworth v Tristar Steering & Suspension Australia Ltd [2007] FCA 1081. 60 Seven Network Ltd v News Ltd [2005] FCA 864, [56] (Graham J). 61 Adelaide Steamship Co Ltd v Spalvins [1998] FCA 144; (1998) 81 FCR 360, 371. 62 Fenwick v Wambo Coal Pty Ltd (No 2) [2011] NSWSC 353, [12] (White J).

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of the litigation, as at 1 May 1996’. This did not amount to a disclosure of the substance of the advice. By contrast, a report by an independent valuer that was included with the statement, stated that ‘[t]here is a dispute about the conversion ratio. Ampolex maintains that the correct ratio is 1:1 and has legal advice supporting this position’. This did disclose the substance of Ampolex’s advice, and led to the loss of privilege in that advice. However, not every disclosure of the substance of advice will lead to the loss of privilege. In  Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1, for example, the Australian Capital Territory government had compromised an action brought by a member of the public by making a payment to him without admitting liability. The litigant complained to a member of the Legislative Assembly of the Territory about the conduct of the government in the litigation. The member passed the complaint on to the Chief Minister for the Territory. The Chief Minister sent the member ‘in confidence’ copies of documents containing legal advice about the litigation that the government had received, which were the subject of legal professional privilege, to enable him to consider the reasons for the conduct. The member returned the copies to the Chief Minister, but retained the covering letter; a copy of which he sent to the litigant. The litigant sought production of the other documents in the Supreme Court of the Australian Capital Territory, by way of preliminary discovery, to ascertain whether they were defamatory. He contended that privilege had been lost by their having been shown to the member. The High Court held that privilege had not been waived, on the basis that ‘there was nothing inconsistent with [the purpose of the privilege] in the Chief Minister conveying the terms of that advice, on a confidential basis, to a member of the Legislative Assembly who wished to consider the reasonableness of the conduct of the Territory in relation to the litigation’.63 Similarly, in Osland v Secretary to the Department of Justice [2008] HCA 37; (2008) 234 CLR 275, the High Court held that privilege had not been lost in circumstances where the AttorneyGeneral had issued a press release to announce that Heather Osland’s petition for mercy had been denied, stating that the government had received legal advice from three named barristers, and that the ‘advice recommends on every ground that the petition should be denied’. The press release clearly disclosed the substance of the advice. However, the High Court held that there was no inconsistency between ‘seeking to give the fullest information as to the process that had been followed, no doubt in order to deflect any criticism’, and maintaining the privilege in the advice itself.64 By contrast, in Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83, a solicitor (and his wife) were being sued by former clients. They claimed that they had paid the sum of $100,100 to Yana Goldberg, on behalf of her husband, in payment of legal fees. The Goldbergs admitted that the payment had been received, but claimed that it was payment for a diamond bracelet that Mrs  Goldberg had sold to the Ngs. Mr Goldberg counterclaimed for unpaid fees. The Ngs also lodged a complaint with the Law Society of New South Wales about the conduct of Mr Goldberg. The Society opened an investigation into the complaint. Mr Goldberg attended two lengthy conferences with the Society’s investigating officer, bringing with him a number of relevant documents, including a copy of a statement that he had made, for the purposes of instructing the solicitor retained to act on his behalf in the anticipated proceedings against the Ngs. The Society’s officer asked if she could read the statement. Mr Goldberg responded that he had nothing to hide, that he wanted to be completely frank and open with the Society, but that the statement was privileged and he did

63 Mann v Carnell [1999] HCA 66, [35]; (1999) 201 CLR 1, 15 (Gleeson CJ, Gaudron, Gummow and Callinan JJ). 64 Osland v Secretary to the Department of Justice [2008] HCA 37, [48]; (2008) 234 CLR 275, 298 (Gleeson CJ, Gummow, Heydon and Kiefel JJ).

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not want it to be given to the Ngs, or their legal advisers. The Society’s officer gave an undertaking that Mr Goldberg’s privilege would be respected, and that copies of the documents would not be provided to the Ngs. He then provided the Society with a copy of the statement. A supplementary statement prepared for the same purpose was subsequently made available to the Society on the same conditions. The Society dismissed the complaint. Subsequently, the solicitor for the Ngs obtained a subpoena to produce documents addressed to the Society, and requiring production of all documents relating to the complaint between the Ngs and the Goldbergs. The High Court held—by 3–2 majority—that privilege had been waived, on the basis that the two proceedings were related, and that disclosure to the Society was voluntary and calculated to demonstrate the reliability of his denial of the complaint. Although each of these three cases was decided under common law, it is likely that Mann v Carnell and Goldberg v Ng at least would be decided the same way under section 122. With Mann v Carnell, although the substance of the advice was knowingly and voluntarily disclosed to another person (thereby triggering section 122(3)), it was disclosed in the course of making a confidential communication (within the terms of section 122(5)(a)(i)). Although exactly the same can be said of Goldberg v Ng, section 122(5)(a)(i) only provides that a client or party is not to be taken to have acted inconsistently with the maintenance of the privilege, ‘merely because’ the substance of the evidence has been disclosed in the course of making a confidential document. It would not prevent a court from finding that acts such as those of Mr Goldberg were nevertheless inconsistent with the claim for privilege. With Osland, on the other hand, it is more difficult to see how a court could avoid finding that privilege had been lost. This is because the press release amounted to a knowing and voluntary disclosure of the advice within the terms of section 122(3), so that the AttorneyGeneral is to be taken to have acted inconsistently with a claim for privilege; and in contrast to Mann v Carnell, the disclosure does not appear to fall within any of the situations in section 122(5), so that there is no way of avoiding this finding.

15.3.2.8 Inadvertently providing a copy of a document The inadvertent disclosure of a document would not ordinarily amount to a waiver. However, on the orthodox view of privilege as a sword rather than a shield (discussed in Chapter 14: Privileges, at [14.1.3] under the heading ‘Effect of a claim of privilege’), the privilege holder may have to look to equity to prevent the use of the document, or to require the other party to return it. However, where the document was inadvertently disclosed in the course of discovery, the High Court has held that an order should be made requiring the return of the document, at least in circumstances where the party who had made the inadvertent disclosure had taken reasonable steps to avoid the mistake, and not delayed in advising the other party of the mistake as soon as they became aware of it.65

15.3.3 Evidence relevant to the defence of the accused in criminal proceedings A successful claim of privilege in criminal proceedings can obviously operate to deny the defence access to vital information, even information that might be capable of establishing the innocence of the defendant. Whether the interests of the defendant should be recognised as more important than the interests protected by client legal privilege is, therefore, a difficult question. In Carter v

65 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; (2013) 303 ALR 199.

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Managing Partner, Northmore Hale Davy & Leake [1994] HCA 33; (1994) 183 CLR 121, a majority of the High Court held that the purposes served by legal professional privilege would be unavoidably compromised if a lawyer was unable to guarantee confidentiality to every communication made to him or her by a client. The House of Lords took the same view in R v Derby Magistrates’ Court; Ex parte B [1995] 4 All ER 526. Both courts therefore held that legal professional privilege did not give way in the face of a defendant’s demand for information. The uniform evidence legislation, on the other hand, takes the opposite approach. The effect of section 123 of the legislation is that privilege does not apply in criminal proceedings to evidence sought to be adduced by the defendant. The only exception to this is when the privilege holder is an ‘associated defendant’ of the defendant. This phrase is defined in the Dictionary as: a person against whom a prosecution has been instituted, but not yet completed or terminated, for: (a) an offence that arose in relation to the same events as those in relation to which the offence for which the defendant is being prosecuted arose; or (b) an offence that relates to or is connected with the offence for which the defendant is being prosecuted.

However, as Anderson, Hunter and Williams point out, section 123 is unlikely to have a significant practical effect. This is because section 123 only applies to the adducing of evidence, and 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.66

15.3.4 Joint clients Section 124 applies in civil proceedings in connection with which two or more parties have, prior to the commencement of the proceeding, jointly retained a lawyer in relation to the same matter. In other words, section 124 applies in legal proceedings between joint privilege holders. In such proceedings, each of the parties can adduce evidence of communications made by any of them to the lawyer, and of the contents of confidential documents prepared by or at the direction or request of any of them. In order to be regarded as having jointly retained a lawyer, it is not necessary that the two parties entered into a joint contract for the retention of the lawyer, or even that both parties instructed the lawyer; rather, it will be enough if one of the joint privilege holders retained the lawyer for their own benefit, as well as for the benefit of the other party.67 However, the court will need to be satisfied that the matter in relation to which the lawyer was retained has the ‘necessary correlation’ with the subject matter of the proceeding.68

15.3.5 Misconduct Section 125 is based on the so-called ‘crime/fraud exception’ to privilege at common law, which prevented privilege from applying to communications made for an improper purpose, such as furthering a crime, fraud or abuse of power. Section 125(1)(a) removes the protection of privilege from communications made or documents prepared in furtherance of a fraud, offence or an act that renders a party liable to a civil penalty. This covers cases such as R v Cox and Railton (1884) 14 QBD 153, where the two defendants had consulted a solicitor about how they could defraud a 66 J Anderson, N Williams, and L Clegg, The New Law of Evidence: Annotation and Commentary on the Uniform Evidence Acts, 2nd edn, 2009, Chatswood, NSW: LexisNexis Butterworths, 563, [123.2]. 67 See Great Southern Managers Australia Ltd v Clarke [2012] VSCA 207, [21]–[23]. 68 See Clarke v Great Southern Finance Pty Ltd [2012] VSC 260, [53] (Sifris J).

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creditor. The notion of ‘fraud’ clearly extends beyond the criminal law, and includes ‘all forms of fraud and dishonesty such as fraudulent breach of trust, fraudulent conspiracy, trickery and sham contrivances’.69 On one view, fraud necessarily involves an element of dishonesty;70 however, on another view, fraud extends to all categories of fraud known to law, including breaches of fiduciary duty that fall short of actual dishonesty.71 A civil action will only be regarded as imposing a ‘civil penalty’ if its aim is to punish rather than compensate; a fine imposed by statute is therefore a civil penalty, but damages are not. The lawyer needs not be aware of the purpose for which the advice is being sought; however, the client must be knowingly involved in the fraud, offence or act subject to civil penalty.72 The requirement is that the communication must have been made or document prepared in furtherance of the commission of the fraud, offence or act subject to civil penalty, so that privilege is not removed from, for example, advice given in order to defend a person in a proceeding arising from the fraud, offence or act subject to civil penalty. Section 125(1)(b) removes the protection of privilege from a communication or document that the client, lawyer or party knew or ought reasonably to have known was made or prepared in furtherance of a deliberate abuse of a power. The word ‘power’ is defined in section 125(3) to mean ‘a power conferred by or under an Australian law’. Section 125(1)(b) covers cases such as Attorney-General (NT) v Kearney [1985] HCA 60; (1985) 158 CLR 500, where the Northern Territory government appeared to have made certain town-planning regulations, in order to defeat Aboriginal land claims; a purpose not recognised by the relevant legislation. In cases where the commission of the fraud, offence, act or abuse of power is a fact in issue, the court may make a finding that the communication was made, or document prepared, in furtherance of the commission of the fraud, offence, act or abuse of power, if there are reasonable grounds for doing so.73

15.3.6 Related communications and documents If privilege in a communication or document has been lost, because of the application of any of sections 121–125, and it is necessary to refer to other communications or documents in order to get a proper understanding of the first communication or document, then privilege is also removed, by virtue of s 126, from the other communications or documents.

69 70 71 72 73

Kang v Kwan [2001] NSWSC 698, [37] (11). See Idoport Pty Ltd v National Australia Bank [2001] NSWSC 222, [63]. Amcor Ltd v Barnes [2011] VSC 341, [40]–[47] (Kyrou J). Amcor Ltd v Barnes [2011] VSC 341, [50]–[53] (Kyrou J). Section 125(2).

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SUMMARY Client legal privilege: • •

•

belongs to the client rather than the lawyer; applies to communications made (and documents prepared) for the dominant purpose of either obtaining legal advice, or in relation to existing, pending or anticipated litigation; and in order to be privileged, the communication must have been confidential.

A communication that would otherwise have been privileged will not be privileged if: • • •

the privilege has been waived by the client, including where the client has acted inconsistently with the maintenance of the claim for privilege; or it was made for an improper purpose; or a criminal defendant is seeking to adduce evidence of the communication, and the privilege holder is not an associated defendant.

a client and a lawyer Legal advice: s 118

A confidential communication between

two or more lawyers acting for the client

the lawyer or one or more of the lawyers providing legal advice to the client

THAT WAS MADE FOR THE DOMINANT PURPOSE OF the client and another person

Litigation: s 119 the lawyer and another person

the client being provided with professional legal services relating to a proceeding, or an anticipated or pending proceeding

is privileged, and if the client objects, evidence is not to be adduced if that would result in its disclosure that was prepared by the client, lawyer or another person The content of a confidential document

Legal advice: s 118

the lawyer or one or more of the lawyers providing legal advice to the client

FOR THE DOMINANT PURPOSE OF

that was prepared

Litigation: s 119

the client being provided with professional legal services relating to a proceeding, or an anticipated or pending proceeding

FIGURE 15.1 SCOPE OF CLIENT LEGAL PRIVILEGE

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YES

NO

YES

Does the communication or document affect the rights of a person?

s 121(3)

NO

YES

YES

YES

Has the client acted in a way that is inconsistent with the client objecting to the adducing of the evidence? NO

Has the document been used by a witness to try to revive the witness’s memory?

Has the client knowingly and voluntarily disclosed the substance of the evidence to another person, or consented to such disclosure?

NO

s 122(6)

s 122(3)

s 122(2)

NO

YES

Is it a defendant in a criminal proceeding who is seeking to adduce the evidence?

s 123: defendants

NO

YES

Is the party seeking to adduce the evidence one of two or more parties who had previously jointly retained a lawyer in relation to the same matter?

s 124: joint clients

NO

YES

Was the communication made or document prepared in furtherance of the commission of a fraud, a civil offence, or a deliberate abuse of power?

s 125: misconduct

PROVIDED ALL OTHER CONDITIONS ARE MET, AND NO EXCEPTIONS APPLY, PRIVILEGE IS LOST AND THE EVIDENCE CAN BE ADDUCED

YES

Would the court otherwise be prevented from enforcing an order of an Australian court?

Is the evidence relevant to the intentions, or compentence in law, of a client or party who has died?

NO

s 121(2)

s 122: consent and related matters

NO

YES

Is it reasonably necessary to adduce evidence of the communication or document to enable a proper understanding of another communication or document which has lost privilege?

s 126: related communications and documents

NO

THE COMMUNICATION OR DOCUMENT HAS NOT LOST PRIVILEGE AND THE EVIDENCE CANNOT BE ADDUCED

FIGURE 15.2 THE WAYS OF LOSING PRIVILEGE

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s 121(1)

s 121: general loss

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Design note: please utilise a segment of the circle for the chapter number (as noted on page 23 of design notes)

322

DISCRETIONARY AND MANDATORY EXCLUSIONS

16

INTRODUCTION Evidence that is relevant and admissible may, in certain circumstances, be excluded in the exercise of the trial judge’s discretion. The existence of exclusionary discretions recognises that the exclusionary rules do not necessarily exclude all the evidence that ought, in the interests of justice, to be excluded. It is equally true that the exclusionary rules sometimes lead to the exclusion of evidence that ought, in the interests of justice, to be admitted; but, neither at common law nor under the uniform evidence legislation, are there any inclusionary discretions allowing the judge to admit the inadmissible. This chapter looks at the following discretionary and mandatory grounds for exclusion: •

• •

•

the general discretion in section 135 to exclude evidence on the grounds that its probative value is substantially outweighed by the danger that the evidence might: – be unfairly prejudicial to a party; – be misleading or confusing; or – cause or result in an undue waste of time; the general discretion in section 136 to limit the use of evidence; the mandatory exclusion in criminal proceedings of prosecution evidence, where its probative value is outweighed by the danger of unfair prejudice to the defendant: section 137; and the discretion in section 138 to exclude evidence on the grounds that it was improperly or illegally obtained.

Other discretions, discussed elsewhere, include: • • •

the discretion to exclude evidence of a confession on the grounds that its use would be unfair to a criminal defendant, discussed in Chapter 8: Admissions; the discretions applying with respect to credibility evidence, discussed in Chapter 11: Credibility; and the discretions applying with respect to the cross-examination of a criminal defendant, discussed in Chapter 12: Character.

16.1 NATURE OF DISCRETION In theory, the difference between an exclusionary rule and an exclusionary discretion is that, with the former, once the criteria triggering the operation of the rule have been met, the trial judge must exclude the evidence; whereas, with the latter, even once the criteria for the operation of the discretion are met, the trial judge still has a choice about whether or not to exclude the evidence.

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This difference can be illustrated by comparing the tendency and coincidence rules, with the discretion to exclude evidence on the grounds that it is more prejudicial than probative. The tendency and coincidence rules require the trial judge to ask whether the probative value of the evidence outweighs (or in criminal proceedings, substantially outweighs) its prejudicial effect. The vagueness of these terms no doubt gives the trial judge some latitude. However, if the judge finds that probative value does not (substantially) outweigh prejudicial effect, then exclusion is mandatory. On the other hand, with the discretion to exclude evidence on the grounds that its probative value is substantially outweighed by its prejudicial effect, it is possible (in theory at least) for the judge to find that prejudicial effect did indeed substantially outweigh probative value, but to admit the evidence nevertheless. However, the difficulty of imagining a trial judge taking such a course (and of being upheld on appeal if he or she did) suggests that the difference between rule and discretion can be overstated. The real difference between a rule, and a discretion, lies more in the fact that appellate courts are generally more reluctant to interfere with a trial judge’s exercise of his or her discretion, than with the application of a rule. The exclusionary discretions are seen as forming part of a trial judge’s overall discretion to control the proceedings over which he or she presides, and appellate courts recognise that the trial judge is generally far better placed than they can ever be to determine whether—in the context of a particular trial—the admission of a particular item of evidence is likely to be prejudicial or unfair. As a consequence, appellate courts are reluctant to interfere with a trial judge’s exercise of discretion and will generally only do so on one of the following grounds: • • • •

that the judge failed to exercise the discretion, because he or she misdirected himself or herself about the existence of the discretion, or about the facts that called for its exercise; that the judge failed to exercise the discretion, because he or she wrongly found that the facts that called for an exercise of the discretion did not exist; that the judge took irrelevant considerations into account, or failed to take into account relevant considerations; or that the judge exercised his or her discretion in an unreasonable way.

16.1.1 The role of the discretions in the uniform evidence legislation Exclusionary discretions are likely to play a significantly greater role in determining the admissibility of evidence, under the uniform evidence legislation, than they did at common law. There are several reasons for this. First, the adoption of a ‘logical relevance’ test, as discussed in Chapter 4: Relevance. Second, the general relaxation of the exclusionary rules of evidence, brought about by the legislation, will inevitably mean that more challenges to the admissibility of evidence must be mounted on discretionary grounds. Third, the exclusionary discretions under the uniform evidence legislation are significantly broader in scope than at common law, most notably extending discretions to civil proceedings that, at common law, apply only to evidence led by the prosecution in criminal proceedings. The discretions were also intended to play a more general role in allowing the ongoing development of the law of evidence, with the Australian Law Reform Commission arguing that: The present law is well and truly ossified except in those areas where there is uncertainty. It is ossified in critical areas such as the hearsay rule where courts have refused to develop further exceptions for

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many years. It must also be acknowledged that the courts have not been particularly successful in either developing or clarifying the laws of evidence in recent years. Whether legislation will prevent the courts developing the law and dealing with new problems depends on its terms. The proposed legislation, in its language and in the strategic use of discretions, provides ways and means for the courts to develop the law and cope with new situations.1

However, if the decision in Aytugrul is any guide, one prospect that the High Court appears unlikely to endorse is the development of general rules about the way in which the discretion should be exercised. The Court thus rejected the ‘general legal proposition’, proposed by the appellant, ‘that evidence expressing the results of DNA analysis as an exclusion percentage would in every case be inadmissible because its probative value is always outweighed by the danger of unfair prejudice to the defendant’.2

16.2 THE GENERAL DISCRETION TO EXCLUDE EVIDENCE At common law, the courts recognised that the trial judge has discretion to exclude otherwise admissible evidence on the grounds that it is unduly prejudicial.3 This discretion is necessary if the trial judge is to be able to ensure that the defendant receives a fair trial. As Gibbs CJ commented in Driscoll v The Queen: It has long been established that the judge presiding at a criminal trial has a discretion to exclude evidence if the strict rules of admissibility would operate unfairly against the accused. The exercise of this discretion is particularly called for if the evidence has little or no weight, but may be gravely prejudicial to the accused.4

As this passage suggests, the common law discretion was only available in relation to evidence led by the prosecution in criminal proceedings, and only with respect to evidence that gave rise to the risk of unfair prejudice. The discretion in section 135 is broader, in two respects, than the common law discretion on which it was based. First, it applies to all proceedings—civil as well as criminal—and to evidence led by any party—defence as well as prosecution.5 Second, in addition to the danger of prejudice, the discretion in section 135 allows the court to exclude evidence on the grounds that it may be misleading or confusing, or cause or result in an undue waste of time. Each of the concepts on which the exercise of the discretion turns is examined below.

16.2.1 Probative value The exercise of the discretion in section 135 requires the judge to identify the probative value of the evidence. ‘Probative value’ is defined in the Dictionary section of the legislation as ‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue’. The key to this definition is the word ‘rationally’. Probative value is about the weight that the tribunal of fact, if acting rationally, could give to the evidence. In  Aytugrul, the 1 2 3 4 5

Australian Law Reform Commission, Evidence (Final), Report No 38 (1987) [24] (footnotes omitted). Aytugrul v The Queen [2012] HCA 15; (2012) 247 CLR 170, [19], [20]–[23], [25]–[30]. See R v Christie [1914] AC 545. Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517, 541 (Gibbs J). C.f. s 8(2) of the Evidence Act 2006 (NZ), which provides that ‘[i]n determining whether the probative value of evidence is outweighed by the risk that the evidence will have an unfairly prejudicial effect on a criminal proceeding, the Judge must take into account the right of the defendant to offer an effective defence’.

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appellant argued that in assessing probative value, the court should only take the ‘incremental probative value’ of the evidence into account; that is, the amount of ‘proof ’ it added to the other evidence available to prove the facts in question. On the other hand, the appellant also argued that in assessing prejudicial effect, the court should not take into account the effect of any other  evidence. Not surprisingly, the High Court rejected this ‘unbalanced’ approach, holding that in assessing both probative value and prejudicial effect, regard must be had to the whole of the case.6 One issue that has still not yet been satisfactorily resolved is whether the court should, in assessing the probative value of evidence, take into account its reliability or lack thereof. At the time of writing, the New South Wales and Victorian Courts of Appeal have taken diametrically opposed positions, which means that the question is likely to come before the High Court sometime in the not too distant future. In Papakosmas, McHugh J argued that any assessment of probative value ‘would necessarily involve considerations of reliability’.7 That is, an assessment of probative value should take into account both the credibility of the source of an item of evidence, and the inferential force that evidence would have if the source was found to be credible. This appears to be consistent with the definition of the phrase ‘probative value’, which is used in each of sections 135 and 137. It will be recalled that under the legislation, relevance is determined on the assumption that the evidence is credible, and that this is confirmed by the inclusion of the phrase ‘if it were accepted’ in the legislation’s test of relevance. This phrase does not appear in the definition of ‘probative value’. So, for example, an item of evidence that would, if accepted, be powerfully relevant to the facts in issue, might be considered to be of very low probative value if the witness from whom the evidence was adduced was entirely lacking in credibility. Gaudron J, by contrast, argued that the omission of the phrase ‘if it were accepted’ from the uniform evidence legislation’s definition of ‘probative value’, is of no significance, arguing that the probative value of an item of evidence can only be assessed on the assumption that it will be accepted.8 The justification for such an approach is twofold. First, it is consistent with the traditional demarcation between the roles of judge and jury; namely, that it is for the jury and not the judge to determine questions of credibility.9 Second, it is arguably consistent with the use of the word ‘could’ in the definition of ‘probative value’, the argument being that the word ‘could’ directs the court’s attention to what it would be open for the jury to conclude about the effect of the evidence, rather than to what the jury (taking into account issues of credibility) is likely to conclude.10 In Shamouil, the New South Wales Court of Criminal Appeal attempted to reconcile the competing views by giving primacy to Gaudron J’s view that issues of reliability and credibility are generally irrelevant to an assessment of probative value, except in the case where the ‘issues of credibility or reliability are such that it is possible for a court to determine that the evidence could rationally affect the assessment of probability of the existence of the fact in issue’.11 It is only in such extreme cases that the views of McHugh J apply. What this appears to mean is that 6 Aytugrul v The Queen [2012] HCA 15; (2012) 247 CLR 170, [25]–[30] 7 Papakosmas v The Queen [1999] HCA 37, [86]; (1999) 196 CLR 297, 323. This position was also explicitly advanced by the Australian Law Reform Commission in Australian Law Reform Commission, Evidence (Final), Report No 38 (1987) [146]. 8 Adam v The Queen [2001] HCA 57, [59]–[60]; (2001) 207 CLR 96, 115 (Gaudron J). 9 See R v Shamouil [2006] NSWCCA 112, [64]–[65], (2006) 66 NSWLR 228, 238. 10 R v Shamouil [2006] NSWCCA 112, [61]; (2006) 66 NSWLR 228, 237. 11 R v Shamouil [2006] NSWCCA 112, [63]; (2006) 66 NSWLR 228, 238; see also R v Mundine [2008] NSWCCA 55; (2008) 182 A Crim R 302.

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issues of reliability and credibility are relevant to the assessment of probative value if, and only if, the evidence is so lacking in credibility or reliability that it could have no rational effect on the probabilities of the existence of the facts in issue. The Tasmanian Court of Appeal decided to follow Shamouil, notwithstanding serious doubts about its correctness.12 In Dupas, on the other hand, a specially convened five judge bench of the Victorian Court of Appeal had no compunction in declaring that ‘Shamouil and the other decisions that have followed it are manifestly wrong and should not be followed’.13 In that case, Peter Dupas, a convicted serial killer, had been charged with the 1997 murder of a woman who had been stabbed to death in a Fawkner cemetery. Several years after the murder, three witnesses identified Dupas as a man they had seen at the cemetery on the day of the murder. In the intervening period, however, two of the witnesses had seen Dupas on television in connection with other murders of which he had by then been convicted, and the third witness had seen Dupas’s photograph in a newspaper article suggesting that he had committed the Fawkner murder. There was no suggestion that the witnesses were intending to be anything other than truthful in identifying Dupas; but the circumstances nevertheless raised obvious doubts about the reliability of their identification. Dupas therefore sought to have the identification evidence excluded on the grounds that its probative value was outweighed by its prejudicial effect. The trial judge, following Shamouil, held that the unreliability of the evidence was irrelevant to the assessment of its probative value, for the purpose of applying the exclusionary discretion in section 137. The Court of Appeal agreed with the New South Wales Court of Criminal Appeal in Shamouil, that section 137 was based on the common law discretion in Christie; however, where the New South Wales court had argued that, at common law, reliability was not taken into account in exercising that discretion, the Victorian court showed—through an extensive analysis of the case law—that a trial judge applying the common law discretion was required to form an opinion about the weight that a jury could reasonably assign to the evidence, which required an evaluation of the quality, reliability and weight of the evidence. Accordingly, they held that the definition of ‘probative value’: involves the assumption … that the jury would accept the evidence as ‘truthful’. Nothing in the language or context of the statute or in the underlying policy suggests, however, that the assumption was to extend beyond truthfulness to reliability.14

In other words, the reliability (or lack thereof) of evidence can be taken into account in assessing probative value for the purposes of the exclusionary discretions. In Dupas, for example, the distinction would allow the court to take possible error by the eyewitnesses into account in assessing probative value, but not possible dishonesty. Having at least partially won the legal argument, however, Dupas then lost the argument about how the discretion should have been exercised, with the Court of Appeal ruling that even taking into account the reliability issues, the probative value of the evidence was not outweighed by its prejudicial effect. In R v XY, a five-judge bench of the New South Wales Court of Criminal Appeal considered the conflict between Shamouil and Dupas, with a majority of the bench standing by Shamouil,15 and only one judge preferring the approach in Dupas.16 Although the matter will ultimately have to

12 13 14 15

See KMJ v Tasmania [2011] TASCCA 7; (2011) 20 Tas R 425. Dupas v The Queen [2012] VSCA 328; (2012) 218 A Crim R 507, [63]. Dupas v The Queen [2012] VSCA 328; (2012) 218 A Crim R 507, [184]. R v XY [2013] NSWCCA 121, [65] (Basten JA), [86]–[87] (Hoeben CJ at CL), and [162] and [174]–[175] (Simpson J); Blanch J at [194] referred to Shamouil, but without clearly endorsing it; (2013) 84 NSWLR 363. 16 R v XY [2013] NSWCCA 121, [224]–[225] (Price J); (2013) 84 NSWLR 363.

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be settled by the High Court, in the authors’ view, the decision in Dupas is to be preferred. This is not because it is more consistent with the pre-existing common law, but because—in the authors’ view—Dupas is more consistent with both the wording of section 137 and the statutory definition of ‘probative value’. The approach in Dupas also means that the discretion provides a more effective safeguard against the admission of unfairly prejudicial evidence.

16.2.2 Prejudicial effect The probative value of evidence can be contrasted with the ‘prejudicial effect’ that the admission of the evidence might have. Evidence is prejudicial when there is a risk that it might be given more weight than it rationally warrants, or when it might cause the tribunal of fact to behave in an emotive, rather than rational, manner. The Australian Law Reform Commission explained the concept of ‘prejudice’ in the following way: By risk of unfair prejudice is meant the danger that the fact-finder may use the evidence to make a decision on an improper, perhaps emotional, basis, i.e., on a basis logically unconnected with the issues in the case. Thus evidence that appeals to the fact-finder’s sympathies, arouses a sense of horror, provokes an instinct to punish, or triggers other mainsprings of human action may cause the fact-finder to base his decision on something other than the established propositions in the case. Similarly, on hearing the evidence the fact-finder may be satisfied with a lower degree of probability than would otherwise be required.17

As a judge is unlikely to concede that he or she could be made to behave in such a manner, the discretion to exclude on grounds arising from the danger of prejudice is only likely to apply in trials involving a jury. It is important to note that evidence is not prejudicial to a party, merely because it would damage their case or support the case of their opponent. That simply indicates that the evidence has some probative value. Thus, in the criminal context, ‘evidence is not unfairly prejudicial merely because it makes it more likely that the defendant will be convicted’.18 Indeed, if it did not have such an effect, then the evidence would be irrelevant. In order to be prejudicial, there must be ‘a real risk that the evidence will be misused by the jury in some unfair way’.19 The risk of misuse obviously depends on the likelihood that the jury will follow any directions that the judge may give regarding how the evidence may and may not be used. Courts frequently extol the capacities of juries to follow directions and to act fairly;20 but, equally, evidence is sometimes excluded on the basis that the jury will not be able or willing to follow judicial direction. In R v XY, for example, the complainant had telephoned the accused and confronted him with allegations that he had abused her as a child. His response was a mixture of ambiguous admission and denial, but also showed him to be a promiscuous person with a sexual interest in girls of high school age. A majority of the court considered that, in ‘the emotionally charged atmosphere of a child sexual assault trial’21 there was a real danger of the jury relying on tendency reasoning and that this prejudice could not be prevented by judicial direction.22 Similarly, in Patel v The Queen, the appellant had been convicted of three counts of manslaughter, and one count of unlawfully doing grievous bodily harm, arising out of surgery

17 18 19 20

Australian Law Reform Commission, Evidence (Interim), Report No 26 (2005) Volume 1, [644]. Papakosmas v The Queen [1999] HCA 37, [91]; (1999) 196 CLR 297, 325 (McHugh J). R v BD (1997) 94 A Crim R 131, 139 (Hunt CJ at CL). See for example, R v Lisoff [1999] NSWCCA 364, [49]; R v Fieldman (Ruling No 1) [2010] VSC 257, [37]–[38] (Kaye J); and ISJ v The Queen [2012] VSCA 321, [66]. 21 R v XY [2013] NSWCCA 121, [193] (Blanch J); (2013) 84 NSWLR 363. 22 See also ES v The Queen (No 1) [2010] NSWCCA 197.

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that he had conducted while employed as a surgeon in a hospital in Bundaberg, Queensland. The prosecution opened its case very widely, but by the end of the trial, the prosecution’s case had been largely confined to a proposition that it had been unnecessary to carry out the surgery rather than that it had been carried out incompetently. What was at issue, then, was not whether the appellant was a criminally incompetent surgeon, but whether his judgment in deciding to carry out the surgery fell so far below the standard of a competent surgeon as to warrant criminal punishment. Consistent with the width of the opening, however, a substantial body of evidence was admitted during the trial, which suggested that the appellant was an incompetent surgeon who had also provided incompetent post-operative care. The evidence was clearly prejudicial, and had been rendered irrelevant by the narrowing of the prosecution case. The trial judge gave very careful directions about the use to which the evidence could be put. Even so, the High Court did not believe that the directions were ‘sufficient to overcome the prejudicial effects of the evidence, individually and collectively, upon the jury’, and found that a substantial miscarriage of justice had occurred.23 In assessing the risk of prejudice, the court should not look at the evidence in isolation but in the context of all the evidence. In Aytugrul, for example, the appellant complained about the prejudicial effect of DNA evidence expressed in the form of a percentage. The High Court observed that: If the exclusion percentage were to be examined in isolation, the appellant's arguments appear to take on some force. But to carry out the relevant inquiry in that way would be erroneous. In this case, both the frequency ratio and the manner in which the exclusion percentage had been derived from the frequency ratio were to be explained in evidence to the jury. The risk of unfair prejudice—described by the appellant as the jury giving the exclusion percentage ‘more weight … than it deserved’—was all but eliminated by the explanation. It is not right … to assess the danger of unfair prejudice by reference only to the exclusion percentage, ignoring all other evidence. In assessing the danger of unfair prejudice to a defendant, regard must be had to the whole of the evidence that is to be given, particularly by the witness to whose evidence objection is taken.24

There have also been a number of decisions that have extended the concept of prejudice beyond the potential for misuse to include issues of procedural disadvantage. In Gordon (Bankrupt), Official Trustee in Bankruptcy v Pike (No 1), Beaumont J excluded otherwise admissible hearsay on the basis that the prejudicial effect of being unable to cross-examine the maker of the representation outweighed its probative value.25 Similarly, in Commonwealth v McLean (1996) 41 NSWLR 389, the New South Wales Court of Appeal used section 135(a) of the uniform evidence legislation to exclude evidence, with the prejudice arising from the fact that other evidence rulings prevented the party from effectively challenging the evidence. In Papakosmas v The Queen, McHugh J disapproved of these cases, finding himself: inclined to think that the learned judges have been too much influenced by the common law attitude to hearsay evidence, have not given sufficient weight to the change that the Act has brought about in making hearsay evidence admissible to prove facts in issue, and have not given sufficient weight to the traditional meaning of ‘prejudice’ in a context of rejecting evidence for discretionary reasons.26

Nevertheless, the case law does recognise that procedural disadvantage can sometimes amount to a form of prejudice: 23 24 25 26

Patel v The Queen [2012] HCA 29; (2012) 247 CLR 531, [113] (French CJ, Hayne, Kiefel and Bell JJ). Aytugrul v The Queen [2012] HCA 15; (2012) 247 CLR 170, [30] (French CJ, Hayne, Crennan and Bell JJ). Gordon (Bankrupt), Official Trustee in Bankruptcy v Pike (No 1) [1995] FCA 1514. Papakosmas v The Queen [1999] HCA 37, [93]; (1999) 196 CLR 297, 325.

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•

• • •

the inability to cross-examine is not of itself unfairly prejudicial although it may be relevant to the weight given to an item of evidence;27 as McHugh J pointed out in Papakosmas, any other view would be at odds with the legislative loosening of the restrictions on the admission of hearsay;28 however, in a particular case, the inability to cross-examine can be relevant, depending on ‘the character of the evidence involved and the nature or strength of the potential prejudice’;29 so can the inability to cross-examine effectively as, for example, where the evidence involves an opinion, the factual basis for which has not been disclosed;30 and as the Australian Law Reform Commission has observed, this is because unfair prejudice can result ‘from mis-estimation by the fact-finder of the weight to be given to particular evidence’, and an ‘inability to test the reliability of evidence may carry with it the danger of such mis-estimation’.31

Two of the most relevant issues in assessing the prejudicial effect that arises from the inability to properly test the evidence will be: •

•

the reasons for the inability to test the evidence; for example, if the maker of a previous representation admissible under an exception to the hearsay rule was available to give evidence, but was not called;32 and the extent to which there really is a risk that the fact-finder will mis-estimate the weight that the evidence should be given, an issue that is likely to turn on the extent to which the dangers of mis-estimation can be reduced through appropriate judicial direction.

16.2.3 The balancing exercise The Australian Law Reform Commission has suggested that the ‘the trial judge should balance probative value and the danger of prejudice without any preconceptions’.33 That said, the balancing exercise is clearly weighted in favour of admission, by virtue of the fact that the exclusion is only an option if the court is satisfied that the probative value of the evidence is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party. The Australian Law Reform Commission has claimed that the concepts of probative value and unfair prejudice are ‘interdependent’,34 and the use of the word ‘outweighed’ in sections 135  and  137 suggests that the probative value and the prejudicial effect can be ‘weighed’ in the same set of scales, in order to determine which ‘weighs’ more than the other. In truth, however,

27 Ordukaya v Hicks [2000] NSWCA 180, [35]–[40]. A different approach could, however, be taken in Victoria, in light of s 25(2)(g) of the Charter of Human Rights and Responsibilities, which confers a right on a defendant to examine the witnesses against him or her. 28 Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297, [93]–[96]. 29 R v Suteski [2002] NSWCCA 509, [126]–[127]; (2002) 56 NSWLR 182, 201 (Wood CJ at CL); see also Galvin v The Queen [2006] NSWCCA 66, [40]; (2006) 161 A Crim R 449, 459. 30 See, for example, Guide Dog Owners’ & Friends’ Association Inc v Guide Dog Association of New South Wales & ACT [1998] FCA 480; (1998) 154 ALR 527 (Sackville J); Seven Network Ltd v News Ltd (No 8) [2005] FCA 1348; (2005) 224 ALR 317. [22]–[24] (Sackville J); and La Trobe Capital & Mortgage Corporation Limited v Hay Property Consultants Pty Ltd [2011] FCAFC 4; (2011) 190 FCR 299, [71]–[72] (Finkelstein J). 31 Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005) [16.45]. 32 See Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005) [16.32]. 33 Australian Law Reform Commission, Evidence (Interim), Report No 26 (2005) Volume 1, [957]; quoted in Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005) [16.39]. 34 Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005) [3.44].

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probative value and prejudicial effect are concerned with different aspects or qualities of evidence and cannot actually be weighed against each other.35 This is because probative value is concerned with the extent to which the evidence could rationally affect the probabilities of the existence of the facts in issue; unfair prejudice, on the other hand, is concerned with the potential for irrational affect. The discretion does not so much call for a weighing exercise, therefore, as the exercise of a value judgment.

16.2.4 Misleading or confusing evidence Under section 135(b) of the uniform evidence legislation—unlike the common law—evidence can also be excluded on the grounds that ‘its probative value is substantially outweighed by the danger that the evidence might … be misleading or confusing’. The justification for the ‘misleading or confusing’ branch of the discretion is clearly the promotion of accurate fact-finding. An example of evidence excluded on the basis that it might be misleading or confusing is provided by the case of Hughes Aircraft Systems International v Airservices Australia (No 3) [1997] FCA 558; [1997] 80 FCR 276. In that case, Finn J found that the Civil Aviation Authority (the predecessor of Airservices Australia) had committed breaches of a tender process contract with the applicant, and engaged in conduct contravening section 52 of the Trade Practices Act 1974 (Cth). This then raised the issue of whether these breaches had caused the applicant to lose the opportunity to win the contract that was the subject of the tender process. The respondent sought to lead evidence from members of the CAA board concerning what their decision on the award of the contract might have been, if the breaches of contract/Trade Practices Act contraventions had not occurred. Finn J held that the respondent had asked the board members to express their views on a contrived, inadequate and incomplete information base, which distorted the original decision-making process. He went on to hold that the evidence had ‘a significant potential to mislead because its probative value is itself affected by the lack of the very scrutiny to which it would have been exposed if the decision was the real—and not a hypothetical—one’. His Honour therefore excluded the evidence through an application of section 135(b). Evidence may also be misleading if it is presented out of context. For example, with evidence of a conversation, ‘it is necessary for at least the substance of the conversation to be reproduced so as to allow it to be properly interpreted in context’.36

16.2.5 Time-wasting evidence Section 135(c) also gives the court the discretion to exclude evidence on the grounds that ‘its probative value is substantially outweighed by the danger that the evidence might … cause or result in undue waste of time’. The justification for the ‘time-wasting’ branch of the discretions is the more pragmatic one of ensuring that legal proceedings are not unnecessarily lengthened by the admission of evidence that, though technically relevant, is unlikely to give the tribunal of fact any real assistance. Evidence might thus be considered likely to ‘cause or result in undue waste of time’ if it were merely cumulative, or if it would unnecessarily proliferate the issues that the tribunal of fact would have to resolve.37 Similarly, if a party had meet its disclosure obligations in relation to 35 See Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461 (McHugh J). 36 La Trobe Capital & Mortgage Corporation Limited v Hay Property Consultants Pty Ltd [2011] FCAFC 4; (2011) 190 FCR 299, [67] (Finkelstein J). 37 See, for example, Koninklijke Philips Electronics NV v Remington Products Australia Pty Ltd [2000] FCA 96, [21]; [2000] 100 FCR 90, 107.

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certain evidence, so that an adjournment or the recalling of witnesses would be necessary to avoid prejudicing the party’s opponent, the admission of the evidence might be regarded as causing an undue waste of time, and could be excluded for that reason.38 The Federal Court has also indicated that the exercise of the discretion in section 135(c) requires ‘an assessment of the time that would be unduly wasted by the evidence’.39 For example, in Matthews v SPI Electricity (the Black Saturday bushfire litigation), the plaintiffs sought to tender 18 audit reports from 11 power line inspectors. The inspectors had been employed by a company that the defendant had engaged to inspect the power line on which the fire had started (along with other power infrastructure). However, none of the inspectors had ever inspected the power lines in question. The reports were said to be relevant to show that there was a systemic problem with the training of its inspectors, which should have been detected and remedied by re-training or improved training methods. The trial judge conceded that the reports might be relevant for this purpose (given the undemanding test of relevance in section 55(1)), but was concerned that admission of the reports ‘has the potential to open up a raft of side issues which are kilometres, if not continents away, from the real controversy’. The defendant might, for example, seek to produce hundreds of audits from other inspectors to counter the suggestion that there was such a systemic problem; or call the inspectors concerned to rebut any suggestion that they had been less than diligent: This may mean that weeks of this trial could be devoted to analysis of documents or oral evidence relating to inspectors who have nothing to do with the central issues in this case. This exercise would be totally out of proportion to the probative value of the reports.40

The court therefore excluded the reports on the basis that ‘the admission of the reports has the potential to waste an enormous amount of time on a point which goes to the heart of the periphery of the issues in this trial’.41

16.3 GENERAL DISCRETION TO LIMIT USE OF EVIDENCE Rather than being faced with a stark choice between admitting or excluding evidence, the uniform evidence legislation gives the trial judge the further option of admitting an item of evidence, but limiting the use that can be made of it. Thus, section 136 provides that: 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.

Section 136 can only operate in circumstances where evidence is relevant for more than one purpose. A trial judge exercising the discretion would be required to direct the jury that the evidence could be used for one of the purposes for which it was relevant, but not for the purpose for which its use might be prejudicial, or misleading or confusing.

38 Dyldam Developments Pty Ltd v Jones [2008] NSWCA 56, [51]. 39 Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2007] FCAFC 70, [76]; (2007) 159 FCR 397, 414. 40 Matthews v SPI Electricity (Ruling No 21) [2013] VSC 219, [13] (Forrest J). 41 Matthews v SPI Electricity (Ruling No 21) [2013] VSC 219, [22].

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One situation in which section 136 is likely to be exercised is where evidence that is relevant and admissible for a non-hearsay or non-opinion purpose is rendered admissible for a hearsay or opinion purpose by the operation of, respectively, section 60 or section 77, in circumstances where it would not otherwise be admissible for that purpose. Although the ‘policy apparently underlying [those] provisions … should not be undercut by the making of orders under section 136 as a matter of course’,42 the considerations that underlie the hearsay and opinion rules may, in the particular circumstances of the case, suggest that the use of the evidence for the hearsay or opinion purpose may create a danger of unfair prejudice. Thus, a party might be unfairly prejudiced by an inability to test, through cross-examination, the maker of a previous representation, or the foundation of or reasoning behind an otherwise inadmissible opinion. A court is likely to be particularly cautious where the disadvantaged party is the defendant in criminal proceedings.43 However, ‘limiting use’ direction can also be used to prevent prejudice to the prosecution. For example, in Johnston v The Queen, the accused was charged with several counts of robbery, burglary and theft, all committed against the same person on 20 and 24 December 2008. The accused told police, in his record of interview, that he went back to the complainant’s house on 24 December, because one of his co-offenders told him that she had been raped by the complainant. Counsel for the accused wanted to lead evidence from one of the investigating police officers to the effect that the co-offender had said in her record of interview that she had been raped by the complainant. It was submitted that this made it more likely that she had also told the accused, and that this was relevant to his state of mind when he went back to the complainant’s house on 24 December 2008. The court accepted that the evidence was relevant for this purpose. Once admitted, however, it then also became admissible under section 60 to prove that the complainant had raped the co-offender. The trial judge barred the use of the evidence for that purpose on the basis that ‘it was evidence about the complainant’s conduct which could not be scrutinised or tested and that that was unfairly prejudicial to the complainant and to the Crown’.44

16.4 EXCLUSION OF PREJUDICIAL EVIDENCE IN CRIMINAL PROCEEDINGS Sections 135 and 136 are of general application, applying in both civil and criminal proceedings, and to evidence led by any of the parties. Section 137, on the other hand, has the same morelimited scope of the common law discretion, on which section 135 was based, applying only to evidence led against the defendant in criminal proceedings. It provides that: 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.

Apart from the more limited scope of section 137, another important difference between the provisions in sections 135 and 137 is that, in section 137, the danger of unfair prejudice need only outweigh, not substantially outweigh, the probative value of the evidence. A further difference is indicated by the replacement of the word ‘may’ in sections 135 and 136 with the word ‘must’ in section 137, which means that section 137 is not really a ‘discretion’ in the same respect as sections 135 and 136. This was recognised in the 2008 amendments to the uniform evidence legislation 42 Seven Network Ltd v News Ltd (No 8) [2005] FCA 1348, [21]; (2005) 224 ALR 317, 322. 43 See, for example, Klewer v Walton [2003] NSWCA 308, [27]; Papakosmas v The Queen [1999] HCA 37, [39]–[40]; (1999) 196 CLR 297, 310 (Gleeson CJ and Hayne J), dealing with evidence of a complaint admissible for a credibility-related purpose in a sexual offence trial. 44 Johnston v The Queen [2012] VSCA 271, [46].

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with the title to Part 3.11 changing from ‘Discretions to exclude evidence’ to ‘Discretionary and mandatory exclusions’. Thus, with section 137, the only room for the court to exercise ‘discretion’ is in deciding whether or not the risk of prejudice outweighs the probative value of the evidence; if the court decides that it does, then exclusion is mandatory.45 Nevertheless, as the Australian Law Reform Commission has observed, section 137 is ‘akin to a discretion’ in that it ‘involves an exercise of judgment to the application of broad principles to be exercised in relation to all types of evidence’.46

16.4.1 Application of the discretion The concepts ‘probative value’ and ‘unfair prejudice’ have the same meaning in section 137 as their equivalents in section 135, so the discussion of those concepts in the context of section 135 above, is equally applicable to section 137. Examples of evidence that might be excluded on the grounds that probative value is outweighed by prejudicial effect include: •

•

•

•

•

45 46 47 48 49 50 51

Gruesome crime scene photographs: Whether it is proper to admit such photographs may depend on whether they are of genuine relevance to the issues. In R v Ames [1964–65] NSWR 1489, for example, the Court held such photographs to have been properly admitted, because they showed the direction of the blood flow, a matter relevant to the question of whether the deceased had been murdered or had committed suicide. Evidence from an accomplice testifying for the prosecution: Where there is a higher than usual risk of fabrication, such as in cases where the accomplice has received an immunity from prosecution in exchange for a promise to give specific testimony against the defendant, or where the accomplice has not yet been dealt with by the courts, evidence might be excluded.47 Highly equivocal evidence: The fact that the defendant ‘shrugged’ his shoulders in response to police questioning might be considered equivocal.48 The mere fact that an item of evidence is open to more than one interpretation—for example, where the prosecution offers it in support of an inference of guilt, and the defence seeks to explain it in a manner consistent with innocence—will not render it unfairly prejudicial.49 Evidence with no proper foundation: Video footage of experiments designed to replicate a fire, in a case where the accused was charged with murdering his parents and setting a fire to cover it up, is an example. The experiments depicted a fire of low height and slow spread, which was at odds with the accused’s claim that, when he arrived at the scene it was too late for him to do anything about the fire. In circumstances where there was ‘either insufficient evidence to prove a number of the variables upon which the experiments were based, or alternatively, the variables which were taken into account produced results which may or may not have replicated what actually occurred’, the experiments were more prejudicial than probative;50 Cross-examination that might reveal the instructions given by the accused to his or her lawyer: An example is cross-examination of the accused on a document prepared by his lawyer, which sets out the defence case, as required by the Criminal Procedure Act 2009 (Vic);51

See R v Lock (1997) 91 A Crim R 356 and R v Blick [2000] NSWCCA 61; (2000) 111 A Crim R 326. Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005) [16.37]. See, for example, R v McLean and Funk; Ex parte Attorney-General [1991] 1 Qd R 231. See, for example, R v Astill (Robert) NSWCCA, unreported, 17 July 1992. See R v SJRC [2007] NSWCCA 142, [38]–[39]. See Gilham v The Queen [2012] NSWCCA 131, [173]; (2012) 224 A Crim R 22. Director of Public Prosecutions (DPP) v McEwan, Robb & Dambitis (Ruling No 2) [2012] VSC 170; (2012) 221 A Crim R 421 (Kaye J).

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•

• •

Requiring the accused to dress in a particular way: An accused was required to dress in overalls, a balaclava, and sunglasses, so as to enable the jury to compare his appearance, with the appearance of a robber recorded by a security camera;52 Evidence suggesting guilt by association: The fact that the accused visited another person charged in relation to the same offences in prison might be excluded as evidence.53 Evidence that the accused gave a ‘sympathetic ear’: In one example, an accused was claimed to have given a sympathetic ear to a co-accused, who was a friend of his, and told him that the police ‘know everything’, in circumstances where the accused did not adopt the co-accused’s inculpatory statements or otherwise implicate himself.54

Interesting issues arise when evidence is both highly prejudicial and—in the prosecution’s eyes at least—central to the prosecution case. In Fattal v The Queen, the accused were charged inter alia with conspiring to carry out a terrorist attack on the Holsworthy Army Base in New South Wales, and to kill as many soldiers as possible. The Crown sought to lead evidence of covertly recorded conversations between two of the alleged conspirators, in which one of them had made comments about the Black Saturday bushfires in Victoria—including, ‘they copped it man, they copped it I swear to Allah hard you know, ’bout two hundred people died you know, right around Melbourne’—which suggested that the speaker hated Australians and Australia. The prosecution argued that the evidence was relevant to motive, and that motive was integral to their case. The trial judge refused to exclude the evidence. The Victorian Court of Appeal acknowledged that the ‘evidence of the bushfire remarks was necessarily prejudicial: evidence of hatred of Australians led before a jury of Australians will invariably be prejudicial’.55 However, in the Court’s view, the prejudice was not unfair, given the importance to the Crown case of motive: Absent evidence of a motive, a rational jury might well not be persuaded that an Australian citizen living within the peace and protection of this country would engage with others to undertake acts preparatory to a suicide attack on Holsworthy Barracks. Knowledge, however, that Aweys despised Australian ‘kuffar’ as ‘filthy people’, and exalted in what he perceived to be the decline of Australian society, was a powerful reason to think that his actions and intention were as alleged.56

16.4.2 Alternatives to exclusion However, before excluding evidence, the trial judge should consider whether it might be possible to eliminate or reduce the danger of unfair prejudice by some means other than exclusion, such as by giving directions to the jury about the use they might make of the evidence, and/or the dangers it presents.57 The judge should also be realistic in assessing whether or not such directions are likely to be effective in eliminating the risk of unfair prejudice.58 For example, in R v Toai Siulai, the

52 See Evans v The Queen [2007] HCA 59, [108]–[109] (Kirby J holding that this created a serious prejudice); [226] (Heydon J, with whom Crennan J agreed, holding that it did not create any unfair prejudice); and [24]–[27] (Gummow and Hayne JJ, holding that part of the ‘demonstration’ was irrelevant, and not referring to the question of prejudice); (2007) 241 ALR 400, 423, 424 (Kirby J holding that this created a serious prejudice); (2007) 235 CLR 521. 53 See R v Chami, Skaf, Ghanem and Skaf [2004] NSWCCA 36, [178]. 54 See R v Chami, Skaf, Ghanem and Skaf [2004] NSWCCA 36, [173]–[177]. 55 Fattal v The Queen [2013] VSCA 276, [45]. 56 Fattal v The Queen [2013] VSCA 276, [43]. 57 See, for example, TKWJ v The Queen [2002] HCA 46, [90]; (2002) 212 CLR 124, 153 (McHugh J). 58 See R v GAC [2007] NSWCCA 315, [87] and [89]; (2007) 178 A Crim R 408, 431.

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accused was charged in relation to a home invasion; prior to the trial, he had given notice of an alibi. At the trial, his defence was that he had in fact been present at the scene of the alleged invasion, but that it had not been an invasion; rather, he had merely been there to have an innocent conversation with the alleged victim. The previous false alibi was both capable of founding a consciousness of guilt inference, and was relevant to the accused’s credibility as a witness if he testified. On appeal, Kirby J observed that the notice: was, as stated, capable of being regarded as a false alibi. That really is not a credibility issue. If it was a lie, it betrayed a consciousness of guilt. It would be difficult for a jury not to so regard it. If they were to find that the notice was a deliberate lie, there was a real risk that they would misuse that finding as evidence from which guilt may be inferred. On the issue of credibility, therefore, there was the danger of unfair prejudice. It outweighed the probative value.59

Similarly, in R v Madigan, the accused had been the subject of extensive surveillance, including the use of listening devices. The prosecution had been permitted to tender a surveillance log book, which contained notes of numerous comments made by the accused suggesting that he had been guilty of offences other than those with which he was charged, or was otherwise of bad character. The trial judge directed the jury as follows: Exhibit M was the log book. I remind you of my direction that you are not to regard what is written in exhibit M as itself evidence of the identity of persons said to be speaking or performing some particular activity. The log book is not to be regarded as evidence of the contents of any conversation recorded. You may use it as evidence of the system adopted and as evidence of the times at which it was said that particular events occur.60

On appeal, Wood CJ and CL held that the log book should have been excluded: It was not, in my view, appropriate for the log book to have been tendered. The primary evidence which the Crown was entitled to tender from the interception operation were the tapes of the conversations, and there was an obvious risk of the observations, which I have extracted, inviting the jury to resort to tendency reasoning or to infer that the Appellant was a person of bad character.61

16.4.3 Broader considerations of unfairness In some cases, something that prevents a party from testing the accuracy of an inference, which its opponent claims can be drawn from the evidence, may have occurred. A compelling example of the dangers of evidence that cannot be tested is the Chamberlain case. At the Chamberlains’ trial, the prosecution adduced expert evidence that samples taken from a ‘spray pattern’ in the front passenger section of the car—the alleged crime scene—were blood from a baby (such as the alleged victim’s). However, the police forensic service destroyed the samples after the testing was performed. At the trial, the defence criticised the tests used by the police, but was obviously unable to adduce evidence of their own tests of the samples. One reason for the Chamberlains’ subsequent acquittal was the later discovery that other models of their car had a similar spray pattern, which proved to be an anti-rust chemical. If the sample from the Chamberlains’ car had been preserved, then the reliability of the original testing could have been checked directly, rather than inferred from indirect evidence.

59 R v Toai Siulai [2004] NSWCCA 152, [84] (Kirby J). 60 See R v Madigan [2005] NSWCCA 170, [81]. 61 Ibid., [82].

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Admitting evidence that cannot be tested can also create unfairness to the accused. At common law, there is some support for the existence of a discretion to exclude evidence on these grounds. As Gaudron J observed in Dietrich v The Queen: [I]n some cases, the requirement [of a fair trial] results in the exclusion of admissible evidence because its reception would be unfair to the accused in that it might place him at risk of being improperly convicted, either because its weight and credibility cannot be effectively tested or because it has more prejudicial than probative value and so may be misused by the jury.62

Where the lack of testability is due to investigative impropriety or illegality, then the discretion to exclude improperly or illegally obtained evidence, as discussed below, may be enlivened. But what about cases where there is no such impropriety or illegality? In R v Lobban, police analysed plants seized at the appellant’s premises, and then destroyed them, failing to comply with a statutory provision requiring samples to be preserved for evidential purposes. The appellant sought to have evidence of the analysis (which found that the plants were cannabis) excluded; this would have effectively prevented his prosecution. According to the trial judge, the police failure of compliance was not sufficient reason to exclude the evidence on the grounds of impropriety or illegality. On appeal, the Supreme Court of South Australia held that a further ‘discretion exists to exclude nonconfessional evidence on the ground that to receive it would be unfair to an accused in the sense that the trial would be unfair. The existence of the discretion is not dependent upon the conduct of law enforcement authorities’.63 The Court indicated that this discretion would only be exercised in an accused person’s favour, in circumstances where ‘the admission of the evidence would create a perceptible risk of a miscarriage of justice that cannot adequately be dealt with by appropriate directions to the jury’.64 It is submitted that the concept of ‘unfair prejudice’ may be sufficiently broad to allow the same approach to be taken under section 137 of the uniform evidence legislation. In the actual circumstances of the case before it, however, the Court held that the discretion should not have been exercised in the appellant’s favour: Although the appellant has lost the opportunity to test the prosecution evidence through analysis conducted by an analyst of the appellant's choice, in the particular circumstances of this case there is no reason to doubt the reliability of the evidence of identification led by the prosecution. Photographs of the material were taken. The appellant did not cross-examine the analyst and did not deny that the material was correctly identified as cannabis. The entire conduct of the defence case lacks any suggestion of an attack upon the merits of the evidence. Rather it seeks to rely upon a mistake by a police officer not connected with the investigation without demonstrating any sound basis for a conclusion that the error by that officer has created any genuine unfairness to the appellant or any risk of a miscarriage of justice.65

16.5 DISCRETION TO EXCLUDE IMPROPERLY OR ILLEGALLY OBTAINED EVIDENCE If the sole goal of evidence law was promoting accurate fact-finding, then the way that evidence was obtained would be ignored by the courts. As one English court put it, ‘It matters not how you get it; if you steal it even, it would be admissible’.66 The uniform evidence legislation, by contrast, 62 63 64 65 66

Dietrich v The Queen [1992] HCA 57, [2]; (1992) 177 CLR 292, 363 (Gaudron J) (emphasis added). R v Lobban [2000] SASC 48, [77]; (2000) 112 A Crim R 357, 379. R v Lobban [2000] SASC 48, [82]; (2000) 112 A Crim R 357, 381. R v Lobban [2000] SASC 48, [88]; (2000) 112 A Crim R 357, 384. R v Leatham (1861) 8 Cox CC 498, 501.

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allows the court’s fact-finding function to be diverted by the need to judge the process that led to the evidence being available in court. Thus, section 138 of the legislation, which is largely a codification of the common law ‘public policy’ discretion,67 provides for the discretionary exclusion of improperly or illegally obtained evidence. Although the primary application of section 138 relates to evidence obtained by criminal investigators, section 138 also applies much more broadly. For example, section 138 has been relied on in each of the following contexts: •

•

•

In a case, where a party to family law proceedings had been found guilty of contempt, on the basis of evidence given in front of a judge who had failed to alert a witness to her privilege against self-incrimination, and failed to provide a certificate under section 128 preventing the use of evidence she had already given, the Full Court of the Family Court held that the evidence was improperly obtained, and should have been excluded under section 138.68 In a case, where the accused was being prosecuted for social security fraud, on the basis that she had failed to notify Centrelink that she was partnered, and the prosecution sought to rely on a statement made by her partner to a Centrelink Customer Service Advisor to the effect that they had been in a relationship for some seven years, the accused sought to have the evidence excluded on the basis that, among other alleged failings, the Centrelink officer failed to caution them that any statements made might be used against them. The Court declined to exclude the evidence, on the basis that the Centrelink officer was not bound to apply the usual procedures relevant to a criminal investigator, and that ‘it is expecting too high a standard to expect every Customer Service Advisor of Centrelink to be trained such that if what may turn out to be an admission of a breach of the relevant legislation is made, they should be ready to caution the maker of the admission’.69 In a case, where a prosecutor simply asked a credit union officer to bring the respondent’s credit union account details to court, rather than compulsorily requiring the production of the documents through such formal process as a subpoena, the Court held that the credit union had a contractual obligation to the respondent not to produce the documents (unless compelled to do so), and that it was improper for the prosecutor to tender the documents in circumstances where their production involved a breach of contract.70

Nevertheless, the conduct of criminal investigators is the primary focus of section 138, and of this chapter, which addresses the four components of the law in turn. First, it discusses the rationale for the discretion. Second, it provides an overview of the legitimate boundaries of criminal investigation in Australia. Third, it describes the categories of evidence that can be subject to exclusion, because of investigative misconduct. Fourth, it discusses the judicial discretion governing whether the immediate goal of accurate fact-finding, or the broader goal of legitimate investigations, should be prioritised in a particular trial.

16.5.1 Rationale for the discretion Assessments of investigative acts are naturally important in proceedings against investigators, such as criminal prosecutions, civil actions for trespass, or maladministration of justice. Occasionally, investigative misconduct may also be relevant at the trial of a person who was the subject of the investigation; for example, if the defendant alleges that some of the prosecution evidence was 67 68 69 70

See Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54. LGM v CAM [2011] FamCAFC 195; (2011) 46 Fam LR 118, [172]–[176]. R v Bormann [2010] ACTSC 145; (2010) 244 FLR 105, [89] (Refshauge J). Bodnar v Townsend [2003] TASSC 148; (2003) 12 Tas R 232.

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fabricated by the police. In others, investigative failings may provide a factual background for an argument that evidence should be excluded, because of unfair prejudice; for example, if the police failed to arrange an identification parade. However, the exclusionary discretion in section 138 is not aimed at ensuring the accurate finding of facts in criminal proceedings. Indeed, its operation is typically to the detriment of that goal. Rather, the discretion serves other goals relating to investigative misconduct. Two such goals are to deter such behaviour, and to preserve the rights of those who are subject to investigations. The natural settings for pursuing these goals—proceedings against investigators, or by wronged suspects—are widely accepted as inadequate in practice, largely because of the legal, practical, and political barriers to punishing police and compensating citizens for investigative errors. Instead, evidence law provides an arguably more effective remedy by preventing the state from benefiting from investigative wrongdoing at a trial that is the outcome of the investigation. Although this remedy can only operate if a prosecution is initiated, and the charge is defended, the possible application of the exclusionary discretion may have a broader impact on other investigations as well as on decisions to charge or engage in plea-bargaining. In Australia, where courts lack a broad mandate to uphold constitutionally entrenched restrictions on criminal investigations, the use of evidence law as a collateral means of disciplining wrongdoers and vindicating rights sits uncomfortably with the separation of powers. By contrast, a third goal—upholding the legitimacy of the judiciary—is one that is clearly within the ambit of all courts. On this approach, evidence that is the product of investigative wrongdoing is excluded, because permitting the use of this evidence in a court may taint the court with that wrongdoing, or lend the court’s legitimacy to the investigators’ conduct. A difficulty with this rationale is that courts generally lack the capacity to initiate inquiries into the conduct of parties to litigation, much less the conduct of state officials in the period before the action was initiated. So, in practice, the claim of investigative misconduct is typically raised and proved by a party seeking to gain a collateral benefit from the court’s preservation of its own legitimacy—the exclusion of evidence adduced by the opposing party. Of course, criminal defendants can only take this step if they are aware of—and are capable of proving—the misconduct of investigators.

16.5.2 Illegality or impropriety The starting point of the uniform evidence legislation rules is an assessment of the legitimacy of the process that led to a challenged piece of evidence being available in the courtroom. Thus, section  138(1) requires that trial judges determine whether the evidence presented at legal proceedings was obtained by, or in consequence of, ‘an impropriety or … a contravention of an Australian law’. In Parker v Comptroller-General of Customs, French CJ observed that: The meanings to be accorded to the terms ‘improperly’, ‘impropriety’ and ‘contravention’ in s 138 were not illuminated by the Law Reform Commission report. The relevant ordinary meanings of ‘improper’ include ‘not in accordance with truth, fact, reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong’. ‘Contravention’ refers to ‘[t]he action of contravening or going counter to; violation, infringement, transgression’. Without essaying an exhaustive definition, the core meaning of ‘contravention’ involves disobedience of a command expressed in a rule of law which may be statutory or non-statutory. It involves doing that which is forbidden by law or failing to do that which is required by law to be done. Mere failure to satisfy a condition necessary for the exercise of a statutory power is not a contravention. Nor would such a failure readily be characterised as ‘impropriety’ although that word does cover a wider range of conduct than the word ‘contravention’.71 71 Parker v Comptroller-General of Customs [2009] HCA 7; (2009) 252 ALR 619, [29]–[30] (footnotes omitted).

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The discussion below provides an overview of the application of the criteria of impropriety and illegality to the acts of Australian criminal investigators. As already mentioned, these provisions of evidence law are also applicable to the acts of private individuals. It is not possible to describe the legitimate boundaries of Australian criminal investigations in simple terms. In most countries, senior judges play a key role in formulating those boundaries through their interpretation of constitutional and international human rights provisions. Australia, however, is one of the few nations that lack entrenched constitutional provisions regulating criminal investigations. This does not mean that constraints on investigators are lacking here, in comparison to other countries. Rather, it means that investigative boundaries emerge from a vast and often antiquated set of common law principles, administrative practices and hundreds, if not thousands, of statutes. Australian courts, generally lacking the authority to overturn statutes or greatly to revise the applicable principles, play a relatively minor role in the development and interpretation of such laws. A full discussion of all the applicable rules in each of the uniform evidence legislation jurisdictions is beyond the scope of this text. Rather, the discussion below is an overview of the important components of the common and statutory law. The section first (at [16.5.2.1] under the heading ‘Investigative acts permitted under the general law’) outlines the many investigative acts that are permitted under the general civil and criminal law that applies to all people. Then, it discusses (at [16.5.2.2] under the heading ‘Investigative acts permitted under police law’) the additional sphere of lawful acts available under the common law and statutory ‘powers’ applicable to the police. Finally (at [16.5.2.3] under the heading ‘Improper investigative behaviour’), it addresses the issue of improper (albeit lawful) investigative behaviour.

16.5.2.1 Investigative acts permitted under the general law A common misconception is that every aspect of an official criminal investigation must somehow be authorised by the common law or a statute. In fact, the overwhelming majority of investigative acts neither have, nor require, any lawful basis. That is because, with only a few exceptions, investigators are permitted to do anything that ordinary people can lawfully do. The sphere of generally lawful activities permits considerable scope for criminal investigations, especially given the state’s resources. Significantly, the primary activity of investigators—the gathering and processing of information—is almost entirely unregulated by traditional Australian law. The common law does not contain any general right to privacy. In particular, there are virtually no legal restrictions on the operation of passive human senses, such as sight, hearing and touch, and the related everyday actions of having conversations with people and reading documents. These simple acts represent the bulk of the behaviour of criminal investigators, who have the resources to make potent use of them. The police have long relied upon human networks to act as extended eyes and ears, and modern investigators increasingly utilise information technology to create and analyse intelligence databases. While some government and commercial activities involving the gathering, storage and analysis of personal information are now mildly restricted by privacy legislation, these regimes are largely inapplicable to investigators. However, certain specialised investigative techniques, notably the use of surveillance devices and DNA profile databases, are subject to statutory control. Perhaps more significantly, there are now also human rights charters in both Victoria and the ACT.72 Most Australian laws regulating ordinary behaviour are concerned with commercial or social issues, with few implications for the conduct of investigators. Ridgeway v The Queen [1995] HCA

72 See Charter of Human Rights and Responsibilities Act 2006 (Vic) and Human Rights Act 2004 (ACT).

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66; (1995) 184 CLR 19 addressed a rare instance where an investigative technique was barred by a regime governing commercial conduct. Australian investigators became aware of a planned importation of heroin. In order to obtain evidence against the instigator of the importation, the police arranged for the heroin to be admitted through customs and to enter the defendant’s possession. The High Court held that the police acts in facilitating the importation of the heroin were in breach of the very customs’ statutes that they were attempting to enforce. In practice, the main legal constraint on Australian investigators is the law of trespass. The law of trespass to the person closely regulates contact with a person’s skin and clothing, while the law of trespass to property gives owners exclusive control over access to vehicles, land and the possession of objects. Bodies and property are, in effect, zones of privacy around depositories of information that are often of great interest to criminal investigators. Nevertheless, the general law also provides numerous avenues for investigators to gather such information without any reliance on special legal powers. First, the law of trespass is concerned only with the physical integrity of bodies and property, rather than informational and social conceptions of privacy. So, investigators are still able to closely observe people and private property with the five senses or with passive technology. In  DPP v Darby [2002] NSWSC 1157, the New South Wales Supreme Court upheld the use of trained dogs to detect cannabis in the clothing of a customer at a nightclub. The Court held that the dog’s behaviour of putting its nose against the defendant’s pocket and ‘nudging’ and ‘bunting’ the defendant’s genitals did not amount to a prohibited intrusion into the defendant’s bodily privacy. Second, the law of trespass is concerned only with private rights. So, it does not regulate contact in social settings where general citizens, including investigators, have explicit or implicit access. Thus, criminal investigators are free to enter and observe the many public spaces in society, such as streets and civic buildings. Moreover, police are also, in practice, able to enter many private spaces, such as shopping malls, relying both on the general invitations extended to all citizens to enter such places, and the owner’s specific permission for investigations to be conducted. Finally, even bodily material, and privately owned objects that have an exclusive owner, may nonetheless become legitimately accessible to investigators if they are deemed to have been abandoned; for example, by being left in a public space or thrown in a rubbish bin. Third, the law of trespass does not prohibit consensual acts involving bodies and property. The law of consent is typically satisfied by a finding—often presumed from the circumstances—that agreement to such contact was a product of the person’s or property owner’s will. Reluctant to overly intrude into social interactions, courts have repeatedly shied away from more complex and contextual inquiries into motivation, understanding, and power when assessing whether an act is consensual. This gives considerable scope to investigators, who typically operate in contexts where ordinary citizens are unsure of their rights, and reluctant to attract suspicion. For example, in R v Braedon [2000] NTSC 68, police investigating a series of rapes interviewed the defendant, living in a remote community in the Northern Territory, and asked him to provide a ‘buccal swab’ (cells scraped from the inside of his mouth). The Court found that the defendant could not read the written information given to him by the police, that their explanation of the procedure was less than ‘full’, and that the defendant ‘may have felt under some pressure’. Nevertheless, the procedure was found to be lawful, because the defendant performed the procedure himself, could have declined to participate, and was accompanied by his uncle who ‘did not want to see the accused get into any trouble’. Finally, the law of trespass is subject to numerous public policy exceptions that can sometimes be utilised for investigative purposes. In R v Godoy, the police received an emergency call that cut off before the caller spoke. On arriving at the house that was the source of the call, the police were

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denied entry by the defendant, who said that there was no problem there. Nevertheless, the police pushed their way inside, and discovered an injured person. The Supreme Court of Canada held that the actions of the police were lawful because: ‘The public interest in maintaining an effective emergency response system is obvious and significant enough to merit some intrusion on a resident’s privacy interest.’73

16.5.2.2 Investigative acts permitted under police law The narrow set of investigative acts actually prohibited by the general law can nonetheless be rendered lawful through the operation of police law. Although initially based in common law, police law is now primarily statutory. Despite moves in some jurisdictions to consolidate police law, the special powers of investigators remain distributed across hundreds of Australian statutes. Those special powers fall into two broad groups. First, there are investigative powers aimed at facilitating the gathering of information and evidence; for example, powers to: • • • • • •

search people; enter and search property; conduct forensic and other procedures on people and property; detain people for an investigative purpose; use otherwise banned technology or methods, such as listening devices and telephone taps; and do acts otherwise barred by the civil or criminal law (such as ‘controlled’ importations of heroin).

These powers typically operate as limited exemptions from existing general laws. The interpretation of statutes creating such powers is subject to the principle that intrusions on individual rights should be construed narrowly. For example, in Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427, the High Court held that a statute authorising the use of a listening device, did not provide investigators with an implicit power to trespass on private property to plant the device. Second, there are administration of justice powers aimed at ensuring compliance with the law, and the effectiveness of the criminal courts; for example, powers to: • • •

prevent ongoing or future unlawful behaviour (such as preventative arrest and move-on powers); ensure that charged offenders will appear before court to be prosecuted (such as powers to demand names and addresses, or arrest and detain people); and ensure that evidence is preserved for prosecutions and, where appropriate, lawful disposal (such as bodily searches following arrest, and the seizure of tools, proceeds and evidence of crimes).

In exercising these powers, investigators may also achieve an investigative end by obtaining further information or evidence concerning a crime. In particular, the power to ensure that a suspected offender is brought before a court, provides an opportunity for that person to be questioned, while preparing the charge or waiting for the court to open. The High Court has endorsed such collateral uses of administration of justice powers, but on the proviso that the primary purpose is still being served. Thus, unless there is a specific statutory authorisation, detention of a person for questioning beyond the period of time needed to bring that person before an appropriate court is unlawful: Williams v The Queen [1986] HCA 88; (1986) 161 CLR 278.

73 R v Godoy [1999] 1 SCR 311 [22] (Lamer CJ).

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If an act is unlawful under the general law, then its legitimacy is likely to depend on: •

• •

the satisfaction of the statutory prerequisites for exercising a police power; although, as French CJ noted in Parker, failure to satisfy a pre-condition to the exercise of a statutory power will not necessarily mean that there has been a contravention of an Australian law; the confinement of the investigator’s acts to the limits of the available power; and the investigator’s compliance with any additional processes that are mandated by the enabling statute.

The most significant condition applicable to nearly all police powers is that there must be ‘reasonable grounds’ to think that performing the act will yield a benefit consistent with the purpose of the power. For example, arrest typically requires reasonable grounds to think that the person being arrested has committed a crime, while search powers typically require reasonable grounds to think that the search will yield evidence of a crime. The reasonable grounds must be specific to the intended goal. In George v Rockett [1990] HCA 26; (1990) 170 CLR 104, police investigating possible perjury obtained a warrant to enter a private office and seize documents containing a transcript of the defendant’s testimony, because they had reasonable grounds to believe that the defendant had written annotations on them. The High Court unanimously held that the warrant was invalid, because the investigators had no idea what had been written and, accordingly, could not have had reasonable grounds for thinking that the notes would afford evidence of perjury. The effect of the reasonable grounds’ requirement is to bar investigators from using coercive or intrusive powers, until some initial investigation has already occurred. The threshold that must be reached is a state of mind that, depending on the power in question, may be either: • •

a suspicion, which is ‘more than a mere idle wondering … it is a positive feeling of actual apprehension or mistrust’;74 or a belief, which is ‘an inclination of the mind towards assenting to, rather than rejecting, a proposition’.75

Either way, certainty is not required. Moreover, the reasonable grounds do not have to be in the form of admissible evidence, and investigators typically rely on hearsay, opinion and tendency inferences to form a suspicion or belief. So, police powers are often used at the point where an investigation switches from initial inquiries to an attempt to gain evidence, to support a planned prosecution. The legitimacy of an exercise of police powers depends on whether reasonable grounds existed at the time the power was used, rather than on whether a police officer’s suspicion or belief turns out to be accurate; thus, an unwarranted search is not legitimated by the discovery of relevant evidence. On the other hand, powers exercised in the context of a particular investigation can legitimately yield evidence of an unrelated offence. For example, a search of a person’s body to find drugs may lawfully uncover a concealed weapon, but only if there were reasonable grounds to suspect that drugs would be found; and the search procedure used was capable of finding those drugs. For some categories of police powers, the reasonable grounds’ requirement is supplemented by a ‘warrant’ procedure, where an investigator must obtain prior approval from an independent person—typically a justice of the peace or a magistrate, or sometimes a judge—before a power can be exercised. The warrant procedure requires the independent person to consider whether all the 74 Queensland Bacon Pty Ltd v Rees [1966] HCA 21, [4]; (1966) 115 CLR 266, 303 (Kitto J). 75 George v Rockett [1990] HCA 26, [14]; (1990) 170 CLR 104, 116.

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statutory requirements are established. The purpose of the warrant procedure is to prevent police officers from routinely exercising their powers, on the off-chance that investigative information will be uncovered. Warrants are not typically required for street procedures such as arrest, bodily and vehicle search, and the seizure of items. Rather, they are usually required for the entry and search of private premises, and the use of invasive modern techniques such as surveillance devices, controlled operations, and intimate forensic procedures.

16.5.2.3 Improper investigative behaviour A finding that investigators acted lawfully merely means that investigators stayed within the bounds afforded to ordinary people, or granted to investigators by a statute. Such a conclusion typically falls far short of an assessment of the merits of investigators’ behaviour. For example, a search of a person’s body will usually be lawful if it was performed with that person’s consent, or at a time when an investigator had reasonable grounds to suspect that such a search would yield evidence of a crime. However, this does not prevent such a search from being unsafe, intrusive, humiliating, or inappropriate. These matters will depend on more specific details, such as: • • • • • • • • • • •

the availability of alternative means for obtaining the evidence; the precise techniques used to effect the search; the parts of the body that are touched; the nature of the physical contact; which items of clothing were removed; the duration of the procedure; the place where the search occurred; the sex, size, training, and demeanour of the searcher; the presence of others; the taking of photographs; and what is said before, during and after the search.

Lawmakers are, understandably, reluctant to make the lawfulness of investigative acts subject to detailed rules on these matters, because such requirements may both hamper legitimate investigations, and expose investigators to civil or criminal liability. The law of evidence is, however, concerned with wider questions of propriety; whether or not legal standards have been complied with. At both common law, and under the uniform evidence legislation, the law of evidence requires courts to determine whether investigative behaviour is improper, even if it was otherwise lawful. The standards of propriety against which investigators are to be measured are not defined in either jurisdiction. However, the uniform evidence legislation deems certain investigative conduct to be improper. Section 138(2) provides that: 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 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) makes a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.

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The first of these paragraphs was intended to deal with cases of coercion; the second with cases of deception.76 Significantly, the focus required by both paragraphs is on the likely impact of the impugned conduct; it is not necessary to establish that there was an actual causal connection between the impugned investigative conduct, and the making of the admission. Section 139 contains further deeming provisions, providing that: for the purposes of section 138(1)(a), ‘evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly’, if the ‘investigating official’77 did not caution the person that the person did not have to do or say anything, but that anything the person did say or do may be used in evidence against him or her, and either: • •

the person was under arrest, and the investigating official conducting the questioning was empowered to arrest them;78 or the investigating official conducting the questioning did not have the power to arrest the person, but had formed a belief that there was sufficient evidence to establish that the person had committed an offence.79

Beyond these deeming provisions, the term ‘impropriety’ is not defined in the Act. It is therefore a matter for the courts to set the standards of propriety; in further contrast to assessments of legality, arguments about propriety always involve questions of degree. In Ridgeway v The Queen, the High Court commented in the following terms on the question of whether lawful behaviour conducted to facilitate a criminal act as part of a ‘sting’ will be considered improper: 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 such conduct. The most that can be said is that the stage of impropriety will be reached in the case of conduct which is not illegal only in cases involving a degree of harassment or manipulation which is clearly inconsistent with minimum standards of acceptable police conduct in all the circumstances, including, amongst other things, the nature and extent of any known or suspected existing or threatened criminal activity, the basis and justification of any suspicion, the difficulty of effective investigation or prevention and any imminent danger to the community.80

In Robinson v Woolworths, Basten JA in the New South Wales Court of Criminal Appeal expanded on these observations: It follows that the identification of impropriety requires attention to the following propositions. First, it is necessary to identify what, in a particular context, may be viewed as ‘the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement’. Second, the conduct in question must not merely blur or contravene those standards in some minor respect; it must be ‘quite inconsistent with’ or ‘clearly inconsistent with’ those standards.81

The deeming provisions in sections 138(2) and 139, and case law on both section 138 and the common law public policy discretion, indicate a number of general grounds for finding that

76 See Australian Law Reform Commission, Evidence (Interim), Report No 26 (2005) Volume 1, [965]. 77 The definition of ‘investigating official’ does not include ‘a police officer who is engaged in covert investigations under the orders of a superior’. 78 Section 139(1); as to whether the person was under arrest, see also sub-ss (5) and (6). 79 Section 139(2). 80 Ridgeway v The Queen [1995] HCA 66, [25]; (1995) 184 CLR 19, 37 (Mason CJ, Deane and Dawson JJ). 81 Robinson v Woolworths Ltd [2005] NSWCCA 426, [23]; (2005) 64 NSWLR 612. The passage in speech marks is a quote from the judgment in Ridgeway v The Queen [1995] HCA 66, [23]; (1995) 184 CLR 1, 36 (Mason CJ, Deane and Dawson JJ). A third proposition, which has been omitted, was only relevant to cases of entrapment.

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particular instances of investigative behaviour are improper for the purposes of section 138(1)(a). For instance, it may be improper for investigators to: • • • •

behave in a manner that is likely to impair the reliability of evidence; make false statements in order to gather information; fail to inform suspects of legal rights or the consequences of co-operating with investigators; or fail to comply with rules of practice, such as the rules that have been developed to govern investigative questioning.

Moreover, in DPP v Carr [2002] NSWSC 194; (2002) 127 A Crim R 151, Smart J held that, in investigations of minor offences, less heinous investigative conduct may be considered improper. In that case, a police officer investigating an incident of rock-throwing arrested an intoxicated witness for using offensive language; this led to a struggle between the witness and the police officer. The magistrate found that the police officer acted ‘lawfully, with integrity and in good faith’, but that the arrest was nonetheless improper, because of the availability of alternative processes, such as issuing a summons or a court attendance notice, which could have been appropriately used in the circumstances. Smart J upheld this finding, and rejected the prosecution’s submission that impropriety always involved ‘moral turpitude’. Rather, it was sufficient that the officer’s conduct had escalated a dangerous situation, and that the officer had admitted choosing to arrest the witness, merely because the alternative would have involved an inconvenient amount of paperwork. Similarly, in DPP v Moore, a police officer dissuaded the defendant, who had registered 0.07 on a breathalyser, from exercising his statutory right to have a blood sample taken. Chernov J held that the officer’s conduct ‘was improper in the sense that it was, in the circumstances, of sufficient seriousness to warrant “sacrificing the community’s desire to see the guilty convicted in order to express disapproval of, and to discourage, the use of unacceptable methods in achieving that end”’.82 Failure to follow the requirements of a police manual, or standing orders, may also amount to an impropriety.83

16.5.3 Connection with illegality or impropriety It is not enough that there has been some illegality or impropriety. There must also be a connection between the impropriety or illegality, and the evidence sought to be excluded. The evidence, to which the exclusionary discretion in section 138(1) of the uniform evidence legislation applies, is described in the following terms: 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 …

The two categories of evidence described in this definition are discussed in turn below (at [16.5.3.1] under the heading ‘Evidence obtained improperly or illegally’ and at [16.5.3.2] under the heading ‘Evidence obtained as a consequence of impropriety or illegality’). The section concludes with consideration (at [16.5.3.3] under the heading ‘Evidence affected by impropriety or illegality’) 82 DPP v Moore [2003] VSCA 90 [42]; (2003) 6 VR 430, 448, referring to Cleland v The Queen [1982] HCA 67, [17]; (1982) 151 CLR 1, 34 (Dawson J). 83 See Attorney-General’s Reference No 1 of 2012 [2013] TASCCA 14; and Director of Public Prosecutions v Zierk [2008] VSC 184; (2008) 184 A Crim R 582.

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of a possible third category of evidence covered by the discretion: evidence affected by impropriety or illegality.

16.5.3.1 Evidence obtained improperly or illegally The first category of evidence that is subject to exclusion is ‘Evidence that was obtained … improperly or in contravention of an Australian law’.84 A number of types of real evidence can fall within this category: •

•

•

An item of real evidence that was improperly or illegally seized: For example, a murder weapon was taken under an invalid search warrant. If an unlawfully seized object is adduced in proceedings, then the court will have received stolen property! Evidence of such an item: In the leading common law case on the discretion, a police officer’s evidence of the reading on a breathalyser machine, after the defendant breathed into it, was held to be subject to exclusion on the basis that the defendant was unlawfully compelled to breathe into the machine (even though, obviously, the defendant’s breath was not itself being adduced): Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54. Evidence of an improperly or illegally performed procedure: For example, an unlawful sobriety test was conducted. In the seminal Australian decision on the discretion, R v Ireland [1970] HCA 21; (1970) 126 CLR 321, photographic evidence of marks on the defendant’s hands—as well as an expert’s testimony about those photographs—was excluded, because the defendant had been unlawfully compelled to hold his hands in front of the camera.

The rule can also cover behaviour of the defendant (such as the conduct discussed in Chapter 17: The Burden and Standard of Proof and Chapter 18: Facts That Can Be Proved without Evidence). In Bunning v Cross, Stephen and Aickin JJ said of the common law discretion that: Its principal area of operation will be in relation to what might loosely be called ‘real evidence’, such as articles found by search, recordings of conversations, the result of breathalyzer tests, fingerprint evidence and so on.85

The apparent basis, for this view of the scope of the discretion, is that real evidence retains its probative value independently of how it was obtained, leaving it outside the reach of other rules of evidence. However, the High Court subsequently held in Cleland v The Queen that the common law discretion is also applicable to confessional evidence, where it operates in addition to the other rules of admissibility discussed in Chapter 8: Admissions. Moreover, in Ridgeway v The Queen, a majority of the High Court established that the exclusionary discretion is not restricted to evidence that can be used to infer guilt, but also covers direct evidence of guilt—behaviour or events that are elements of the offence charged. This extends the ambit of the exclusionary rule to investigative conduct prior to the commission of a crime. In Ridgeway, the defendant organised an importation of heroin and was arrested when that heroin came into his possession. However, the actual importation was illegally assisted by Australian police engaged in a sting operation against the defendant. A majority of the High Court held that this meant evidence of that importation could not be adduced. The effect of this holding was not merely to weaken the prosecution’s case, but to completely prevent an element of the defendant’s crime from being established, leading to an automatic stay of the criminal proceedings. McHugh J dissented, arguing that the exclusionary discretion was ‘concerned only with the rejection of evidence obtained by unlawful or improper means and is not directed to the wider issues that 84 Section 138(1)(a). 85 Bunning v Cross [1978] HCA 22, [28]; (1978) 141 CLR 54, 75 (Stephen and Aickin JJ).

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are likely to be involved in cases of entrapment, one of which is whether a prosecution should be allowed to proceed at all’.86

16.5.3.2 Evidence obtained as a consequence of impropriety or illegality The second category of evidence described in section 138(1) is ‘[e]vidence that was obtained … in consequence of an impropriety or of a contravention of an Australian law’.87 This category clearly incorporates everything in the first category. However, it also extends the exclusionary discretion to evidence that was obtained lawfully and properly, but that would not have been obtained without an earlier unlawful or improper act. For example, evidence obtained in an interview that was conducted after a failure to comply with a provision governing the rights of detained accused is only likely to have been obtained as a ‘consequence of a contravention’, unless the provision specifically bars the accused from being interviewed if the relevant rights’ protection is not provided.88 Moreover, as the wording of section 138 suggests, it is necessary for the accused to ‘establish that there is a causal connection between the contravention and the obtaining of the impugned evidence’.89 There is very little Australian law on this aspect of the exclusionary discretion. However, it has attracted considerable judicial discussion in jurisdictions that have constitutional provisions regulating the scope of criminal investigations. In particular, the United States Supreme Court has regulated such evidence since early in the twentieth century, where it is colourfully referred to as ‘the fruit of the poisonous tree’. Although other nations’ exclusionary rules differ from Australia’s, comparative judgments (or, at least, the distinctions they rely upon) are likely to be influential here. Comparative decisions suggest that the second category of evidence, in section 138, covers a variety of far-reaching scenarios: •

•

•

86 87 88 89

When a single item of evidence was obtained twice, first unlawfully, and then lawfully: In Silverthorne Lumber v United States, 251 US 385 (1920), investigators illegally entered the defendants’ premises, seized some documents, made copies, and then returned them. They then sought a warrant to seize the documents lawfully, relying on the copies of the documents— which clearly demonstrated that the original documents would evidence the defendants’ criminality—to satisfy the reasonable grounds’ requirement. The United States Supreme Court held that permitting this cynical exercise to occur would make a mockery of the constitutional provision limiting searches and seizures. When unlawful acts, or unlawfully obtained evidence, are used to lawfully obtain a different piece of evidence: In Wong Sun v United States, 371 US 471 (1963), the police unlawfully raided the defendant’s home to search for drugs. No drugs were found, but police witnessed the defendant trying to prevent the search, and then confessing to having used drugs with another person on the previous evening. When the police located that person and confronted him with the defendant’s confession, he handed over the drugs. The Supreme Court held that the defendant’s suspicious conduct and his confession were the ‘fruit’ of the initial unlawful entry. Similarly, the handing over of the drugs, while consensual, was nonetheless the fruit of the tainted confession. So, none of the evidence could be used against the defendant; When investigators unlawfully acquire information that suggests further lawful avenues of inquiry: In United States v Ceccolini, a police officer, while chatting with a friend who worked at a flower Ridgeway v The Queen [1995] HCA 66, [19]; (1995) 184 CLR 19, 86 (McHugh J). Section 138(1)(b). R v CK [2013] ACTSC 251, [34]–[35]. Emphasis added. R v CK [2013] ACTSC 251, [38].

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shop, noticed an envelope behind the counter and then (unlawfully) opened it, observing that it contained money and policy slips. Without mentioning what he saw, he asked his friend whose envelope it was, and she said that it was the defendant’s. The police officer gave his friend’s name to colleagues investigating a gambling ring, without mentioning the envelope. Months’ later, those colleagues approached the friend, but did not mention the original police officer. The friend then freely told the officers about the defendant’s illegal activities. An intermediate United States’ appellate court barred the friend from testifying in court against the defendant, on the basis that ‘the road’ from the unlawful opening of the envelope to her testimony ‘is both straight and uninterrupted’.90 The logic of the ‘fruit of the poisonous tree’ approach is straightforward: the state should not be permitted to gain any advantage from an unlawful act. However, a possible consequence of the approach is to render some crimes or defendants immune from prosecution, because of an unlawful act at an early stage of an investigation. A highly significant modern instance of this phenomenon is the use of DNA databases. In R v Shaheed [2002] 2 NZLR 377, the defendant was questioned about (and later pleaded guilty to) an alleged offence of offensive behaviour involving the propositioning of a 16-year-old. He agreed to hand over a DNA sample, after being told that he was compelled to provide one. A profile derived from that sample was compared with profiles from unsolved crimes in New Zealand’s investigative DNA database, yielding a match to an unsolved rape of a 14-yearold from a year earlier. Further investigations revealed that the defendant’s appearance matched a description given by the victim of that rape, that he had the opportunity to commit the rape, and that he had since engaged in behaviour that could evidence a tendency to commit such offences. Moreover, the victim subsequently identified the defendant from a line-up. However, all of this evidence became subject to exclusion, when it was discovered that the police had unwittingly erred when they told the defendant that he could be compelled to provide a sample. In fact, the New Zealand police had no power to compel sampling, in relation to the offence of offensive behaviour. In Silverthorne, the United States Supreme Court held that the exclusion of fruits of the poisonous tree ‘does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others’.91 However, once an unlawful act has let an evidential ‘cat out of the bag’, it will often be difficult to show that any later acquired evidence was from an independent source. Thus, a majority of the New Zealand Court of Appeal in Shaheed held that a subsequent DNA match lawfully acquired to investigate whether the defendant committed the rape could not be adduced, as the grounds used to justify that sampling—which did not include the original match—nonetheless only came to police attention because of the original match. This suggests that the causation issues raised by section 138 turn in part on the following hypothetical question: What would have happened if there had been no impropriety or illegality? This question helps to distinguish between two situations. The first situation is where the prosecution obtained evidence that could not have been obtained without the impropriety or illegality. In R v Burlingham [1995] 2 SCR 206, police interrogated a murder suspect for three days, ignoring his refusal to speak without legal advice. They told him his refusal would hurt his parents, that his lawyer just wanted his money and that, if he revealed where the murder weapon was without consulting his lawyer first, he would be charged with a lesser offence. After the defendant confessed and showed the police where the weapon was, the deal was revoked and he was charged with murder. The Supreme Court of Canada held that, because the gun—the location of which, at the bottom of a frozen river, was known only to the

90 United States v Ceccolini (1977) 542 F2d 140, 142 (overruled in United States v Ceccolini, 435 US 268 (1978)). 91 Silverthorne Lumber v United States, 251 US 385, 392 (1920).

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defendant—would never have been found without the police misconduct, the evidence of the gun must be excluded. The opposite situation is where the evidence would have been discovered, even if the impropriety or illegality had not occurred. In Nix v Williams, the United States Supreme Court dealt with a very similar situation to Burlingham. The crucial difference is that the defendant led police to the victim’s body, which was in an area that was soon to be searched in any case, and whose condition would have been preserved by an imminent snowfall. The Court held that the evidence was admissible as, ‘[e]xclusion of physical evidence that would inevitably have been discovered adds nothing to either the integrity of fairness of a criminal trial’.92 However, most evidence that is tainted by illegality or impropriety will fall between these two extremes. That is, it will be impossible to know what would have happened, ‘but for’ the investigators’ misconduct. The approach of the Canadian and United States Supreme Courts is that the general nature of the evidence, and how it was obtained, provide a guide as to whether it should be excluded or not. Thus, confessional evidence from the defendant, obtained because of illegality or impropriety can—and perhaps ought to—be regarded as evidence that would not have been obtained, but for the misbehaviour; because any other assumption would be inconsistent with the privilege against self-incrimination. By contrast, testimonial evidence from a non-defendant witness attracts the opposite assumption: Witnesses are not like guns or documents which remain hidden from view until one turns over a sofa or opens a filing cabinet. Witnesses can, and often do, come forward and offer evidence entirely of their own volition.93

Until recently, the Supreme Court of Canada equated a third category of evidence—physical evidence obtained directly from a person’s body, including bodily samples, hidden physical characteristics, and participation in an identification parade—with confessional evidence.94 In R v Collins [1987] 1 SCR 265, it excluded evidence obtained by unlawfully squeezing a person’s throat to stop her from swallowing drugs. In R v Stillman [1997] 1 SCR 607, it excluded hair evidence that was deceptively obtained from the defendant’s head by an undercover officer, but not mucus that was on a tissue discarded by the defendant while in custody, after he refused to provide a formal sample. However, Australian authority has—in a different context—rejected the view that physical evidence from a person’s body is governed by the same principles as self-incriminatory behaviour.95 In R v Braedon, Martin CJ noted—in refusing to exclude DNA evidence arguably obtained unlawfully from the defendant’s mouth—that the material may still have been obtained anyway by testing objects that the defendant had already touched. One way of dealing with these cases, to which no clear answer can be given to the question ‘what would have happened but for the impropriety or illegality’, is to restrict the scope of the exclusionary discretion to evidence that is closely affected by the original unlawful act. Thus, courts in the United States of America have held that their exclusionary rule does not apply where the connections between unlawful investigative acts, and later evidence, ‘have become so attenuated as to dissipate the taint’96 of the original wrongdoing. The United States Supreme Court relied upon this approach to rule that the witness’s testimony in United States v Ceccolini was admissible, on the basis that the ‘road’ from unlawful act to lawfully obtained information was simply too long. More recently, it was used by a majority of the New Zealand Court of Appeal in Shaheed to hold that the victim’s identification of the defendant in a line-up was not within the scope of their exclusionary 92 93 94 95 96

Nix v Williams, 467 US 431, 446 (1984). United States v Ceccolini 542 F2d 140, 276 (1977). See now R v Grant 2009 SCC 32. See Gibbs CJ in Sorby v The Commonwealth [1983] HCA 10; (1983) 152 CLR 281. Nardone v United States, 308 US 338, 341 (1939).

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rule, because the original wrong-doing merely ‘resulted in the complainant having the opportunity to draw on her independent recollections’97 of the defendant’s appearance. In DPP v Coe, the New South Wales Supreme Court considered how the causation issue operates in situations where the offence with which the accused is charged, only occurred as a consequence of an investigative impropriety or illegality. The defendant was charged with assaulting a police officer. However, he argued that the assault only arose, because the police officer had made an unlawful attempt to arrest another person, leading the defendant to intervene. Adams J doubted that the Ridgeway approach can be satisfied by such a ‘mere causal link’; rather, ‘the circumstances must be such as to fit fairly within the meaning of “obtained”, almost invariably because the conduct was intended or expected (to a greater or lesser extent) to achieve the commission of offences’.98 In DPP (NSW) v AM, on the other hand, Hall J pointed out that ‘cases involving an illadvised or unnecessary arrest which result in unintended consequential offences by definition lack a purposive element’. In other words, the officer perpetrating the wrongful arrest would not intend to provoke the commission of further offences. For that reason, Hall J argued that the necessary causal connection actually related to the ‘likelihood of an event occurring’; that is, whether the conduct in question, such as a wrongful arrest, ‘might be expected’ to give rise to consequential offences, such as resisting arrest.99

16.5.3.3 Evidence affected by impropriety or illegality A possible third category of evidence, within the scope of the exclusionary discretion, is evidence that is affected by illegal or improper behaviour. The difference between this category, and the other two, is that the investigators’ misconduct did not cause the police to obtain the evidence, but nonetheless in some way affected the use to be made of that evidence. The issue arises most squarely when the illegality or impropriety occurred after the evidence had already been obtained. At common law, two judgments from South Australia held that this category of evidence is not within the scope of the exclusionary discretion. In R v Lobban, discussed above, police lawfully executed a search of the defendant’s premises and obtained a number of plants that were subsequently identified as cannabis. However, the plants were later inadvertently destroyed by the police, in non-compliance with a statutory provision requiring that samples be preserved for evidentiary purposes. The South Australian Court of Criminal Appeal rejected an argument that evidence of the identification of the plants fell within the scope of the common law’s public policy discretion: The critical element missing … is an attempt by the prosecution to advance its case by using evidence obtained by or involving unlawful or improper conduct by a law enforcement authority. In my view, the history of the development of the public policy discretion and the rationale now identified for its existence do not sit well with the extension of its area to encompass the possible exclusion of evidence obtained lawfully and without the occurrence of any unlawful, improper or unfair conduct on the part of the law enforcement officers in connection with the obtaining of the evidence.100

This approach followed an earlier case, where the same court held that the public policy discretion was not enlivened by the willingness of police officers, who had lawfully seized some evidence, to falsely testify that the evidence had been seized according to a warrant: Question of Law (No 1) (1998) 70 SASR 281. However, both these cases were distinguished in DPP v Moore. A police officer had improperly discouraged the defendant from exercising his statutory right to have a 97 R v Shaheed [2002] 2 NZLR 377, 430. 98 DPP v Coe [2003] NSWSC 363 [12]. 99 DPP (NSW) v AM [2006] NSWSC 348, [82]–[83]; (2006) 161 A Crim R 219, 236. 100 R v Lobban [2000] SASC 48, [41]; (2000) 77 SASR 24, 34.

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blood sample taken to verify his failure of a roadside breathalyser test. A majority of the Victorian Court of Appeal held that the trial judge correctly applied the public policy discretion to exclude evidence of the breathalyser test taken immediately before that conduct occurred. The majority disagreed with South Australia’s confinement of the public policy discretion to conduct that causes evidence to be obtained, as otherwise the courts would have ‘no way of expressing curial disapproval of such conduct’. Instead, they suggested that the discretionary exclusion is applicable to ‘the situation where unlawful or unfair conduct immediately follows the obtaining of evidence, and which conduct denies the opportunity for the accused to test the evidence’.101 The majority noted that neither of the South Australian cases concerned investigative misconduct of this sort. The position under section 138 of the uniform evidence legislation was briefly considered in R v Haddad and Treglia. The defendants’ admissions were lawfully obtained pursuant to a statutory listening device warrant. However, the defendants argued that the evidence should have been excluded, because of the failure of the investigator who obtained the warrant to comply with a statutory requirement to report on the use to be made of evidence obtained by the device. The New South Wales Court of Criminal Appeal said that it was ‘by no means clear’ that section 138(1)(a) is inapplicable to evidence that was obtained prior to any misconduct, noting that the phrases ‘obtained in contravention’ and ‘obtained improperly’ might ‘be construed so as to encompass the entirety of an integrated scheme, particularly a scheme designed to protect fundamental freedoms’.102 However, a subsequent judgment of the same court held that evidence cannot have been obtained ‘in consequence’ of an impropriety or illegality, if the impropriety or illegality occurred after the evidence had already been obtained.103

16.5.4 Operation of the exclusionary discretion The taint of impropriety or illegality does not mean that evidence is automatically excluded. Rather, the Australian approach, as described by Barwick CJ in R v Ireland, is that: the judge has a discretion to reject the evidence. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion.104

The common law approach is replicated in section 138(1), which provides for exclusion ‘unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained’. This formulation differs from the common law in putting the burden of persuasion (in relation to how the discretion will be exercised) on the party adducing the evidence, rather than the party opposing it. In some narrow contexts, certain Australian statutes—notably statutes regulating the use of surveillance devices and some aspects of DNA profile databases—provide for a mandatory exclusionary rule. Otherwise, evidence proffered in an Australian court that is within the scope of the exclusionary discretion will attract the discretionary approach. Section 138(3) of the uniform evidence legislation provides courts with a list of factors that must be considered, but refrains from providing further guidance to courts on how the discretion is to be exercised.

101 DPP v Moore [2003] VSCA 90, [89]; (2003) 6 VR 430 (Eames JA). 102 R v Haddad and Treglia [2000] NSWCCA 351, [73]–[75]; (2000) 116 A Crim R 312, 327. 103 R v Dalley [2002] NSWCCA 284, [86]; (2002) 132 A Crim R 169, 186; see also Tasmania v Crane [2004] TASSC 80, [21]; (2004) 148 A Crim R 346, 354. 104 R v Ireland [1970] HCA 21, [28]; (1970) 126 CLR 321, 335 (Barwick CJ).

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The discretionary approach is open to significant criticism. One view is that the balance between crime control and due process has already been struck by the assessment of the legality and propriety of a criminal investigation; in Shaheed, Elias CJ argued that further consideration of this balance is likely to lead to ‘double-counting’.105 In addition, the discretionary approach may undermine the deterrence rationale, as police officers recognise that the ‘end’ of convicting a serious offender may be treated by a trial judge as justifying any ‘means’. For this reason, the United States Supreme Court follows a mandatory exclusionary rule, albeit one hedged by exceptions when the deterrence rationale is not served.106 The main justification for the discretionary approach is that the collateral benefit to criminal defendants of excluding evidence, which is probative of their guilt, will itself damage the legitimacy of the courts. However, a similar concern could be raised about other broad exclusionary rules of evidence. Moreover, the exercise of weighing two incommensurables required by the discretionary approach may itself undermine the courts’ legitimacy. For example, the exercise of the discretion in relation to crucial evidence, in the prosecution of a very serious crime—such as the DNA identification evidence in Shaheed’s rape prosecution—will invite cynical commentary, no matter how it is resolved. In R v Collins, a majority of the Supreme Court of Canada held—in relation to an equivalent discretionary rule contained within the Canadian Charter of Rights and Freedoms—that the decision about admissibility ‘is not left to the untrammelled discretion of the judge’, but rather ‘is grounded in community values, and, in particular, long term community values’.107 The discussion below follows Collins by ‘group[ing] the factors according to the way in which they affect the repute of the administration of justice’.108 Three issues are addressed: first, considerations raised by the nature of the evidence itself and, in particular, whether it would have been obtained without the impropriety or illegality; second, considerations raised by the investigators’ conduct, especially their motivations in acting illegally or improperly; and, third, considerations raised by the impact of the evidence (or its exclusion) on the administration of justice.

16.5.4.1 The effect of excluding the evidence Section 138(3) lists the following as the first three factors that a trial judge must take into account when exercising the discretion: (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; …

These factors, in combination, represent the cost to society of excluding the evidence. In R v Dalley, Spigelman CJ, speaking for a majority of the NSW Court of Criminal Appeal wrote: In the case of criminal proceedings, in my opinion, the public interest in admitting evidence varies directly with the gravity of the offence. The more serious the offence, the more likely it is that the public interest requires the admission of the evidence.109

Therefore, the fact that a confession unlawfully obtained by investigators was to be used in a murder trial provided a reason against excluding the evidence. It seems that similar logic applies

105 106 107 108 109

R v Shaheed [2002] 2 NZLR 377, 385. See United States v Leon, 468 US 897 (1984). R v Collins [1987] 1 SCR 265, 282. Ibid., 284. But see now R v Grant 2009 SCC 32. R v Dalley [2002] NSWCCA 284, [3]; (2002) 132 A Crim R 169, 171.

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to the other two factors. For example if the tainted evidence was DNA evidence that was central to a prosecution, then the importance of the evidence would be a factor favouring admission.110 In the authors’ view, the majority approach in Dalley—and, if it follows, the application of that approach to the other two factors—is dubious, because it ignores the impact of these factors on the competing ‘public policy’ consideration of counteracting the harmful effects of investigative misconduct. Arguably, investigative misconduct is more harmful when it involves more serious offences, or more significant evidence, because it ultimately exposes defendants to a higher risk of serious punishment. Moreover, a reliance on those factors may encourage investigators to be less careful about legality and impropriety, when investigating serious crimes or seeking to obtain significant evidence. As Simpson J, dissenting on this point in Dalley, commented: In my opinion it would be wrong to accept as a general proposition that, because the offence charged is a serious one, breaches of the law will be more readily condoned. In my judgment there may be cases in which the fact that the charge is a serious one will result in a more rigorous insistence on compliance with statutory provisions concerning the obtaining of evidence. That a person is under suspicion for a serious offence does not confer a licence to contravene laws designed to ensure fairness.111

Similar concerns led Stephens and Aickin JJ, in Bunning v Cross, to declare that regard should not be had to the cogency of the evidence to be excluded in cases ‘where the illegality involved in procuring it is intentional or reckless’.112

16.5.4.2 The seriousness of the misconduct The next three factors listed in section 138(3) focus on the seriousness of the misconduct: (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; …

There is general agreement that a deliberate disregard of the law by investigators is a very strong factor in favour of excluding evidence, especially if the evidence would not otherwise have been obtained. In Pollard v The Queen—a case dealing with a confession obtained after the police failed to give a custodial suspect an adequate opportunity to contact a friend—Deane J described the two ‘extremes’. At one extreme are cases ‘in which what is involved is an “isolated and merely accidental non-compliance” with the law or some applicable judicially recognised standard of propriety’.113 In such cases, the balance of public interest is likely to favour admission. At the other extreme ‘are cases where the incriminating statement has been procured by a course of conduct on the part of the law enforcement officers which involved deliberate or reckless breach of a statutory requirement imposed by the legislature to regulate police conduct in the interests of the protection of the individual and the advancement of the due administration of criminal justice’.114 Here, the balance of public interest is clearly likely to favour exclusion. More recently, the Victorian Court of Appeal has sought to map out the spectrum of impropriety in the following way: At the least serious end of the spectrum of improper conduct would be that which did not involve any knowledge or realisation that the conduct was illegal and where no advantage or benefit was gained as a

110 111 112 113 114

See Director of Public Prosecutions v Marijancevic [2011] VSCA 355; (2011) 33 VR 440, [61]. Ibid., [97], 189. Bunning v Cross [1978] HCA 22, [38]; (1978) 141 CLR 54, 79 (Stephen and Aickin JJ). Pollard v The Queen [1992] HCA 35, [11]; (1992) 176 CLR 177, 203, 204 (Deane J). Ibid., [11], 204.

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consequence of that impropriety. In the middle of the range would be conduct which was known to be improper but which was not undertaken for the purpose of gaining any advantage or benefit that would not have been obtained had the conduct been legal. At the most serious end of the range would be conduct which was known to be illegal and which was pursued for the purpose of obtaining a benefit or advantage that could not be obtained by lawful conduct.115

In that case, the Victorian police had developed a widespread and entrenched practice of relying on unsworn affidavits to obtain search warrants.The affidavits did not contain any deliberate misstatement of the facts; the officers who executed the warrants believed they were authorised to enter; and, Victoria Police had taken steps to stop the practice. The trial judge found that  the  swearing of evidence under oath is fundamental to the administration of justice and the deception ‘whether intentional or reckless undermined the whole process’, and considered it to be an impropriety ‘of the highest order’.116 Although the Court of Appeal thought that the conduct did not fall ‘at the most serious end of the range’, because it ‘was not engaged in for the purpose of obtaining an advantage that could not by proper conduct have been obtained’,117 it  nevertheless  upheld the trial judge’s exercise of his discretion to exclude the evidence obtained as a result of the warrants. Breach of a right recognised in the International Covenant on Civil and Political Rights is also a factor favouring exclusion. For example, in Hibble v B, the Court referred to the right to privacy in Art 17 of the International Covenant (albeit without giving it enormous weight compared to other factors), when affirming the decision of a magistrate in the Youth Justice Division to exclude evidence of a DNA match.118 In that case, a DNA sample had been obtained from the accused when he was 13 years old, in circumstances that arguably amounted, among other improprieties, to an arbitrary invasion of privacy. The sample had been placed on a database. Nearly two years later, when the accused was 15, that sample was matched with a sample taken from the window sill of a hair salon that had been burgled. Shortly thereafter, the accused was interviewed, with a second DNA sample eventually being obtained, and matched to the sample from the window sill. In the meantime, the original DNA sample was destroyed. The court accepted that the second sample had been obtained as a consequence of the impropriety in obtaining the first, and held that the evidence had been properly excluded.

16.5.4.3 Other factors relevant to the strength of the public interest in exclusion The final two factors listed in section 138(3) are also relevant to the strength of the public interest in exclusion: (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.

The factor in paragraph (g) arises from the fact that, if other proceedings, such as disciplinary proceedings against the relevant investigators, have been or are likely to be taken, then there is correspondingly less need for the courts to express their own disapproval of the process that led to the obtaining of the evidence.

115 116 117 118

Director of Public Prosecutions v Marijancevic [2011] VSCA 355; (2011) 33 VR 440, [67]. Director of Public Prosecutions v Marijancevic [2011] VSCA 355; (2011) 33 VR 440, [65]. Director of Public Prosecutions v Marijancevic [2011] VSCA 355; (2011) 33 VR 440, [68]. Hibble v B [2012] TASSC 59; (2012) 225 A Crim R 494, [76] (Wood J).

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The significance of the factor set out in paragraph (h) may be more difficult to assess. The existence of a lawful alternative raises the likelihood that the evidence would have been obtained anyway; however, admitting evidence on this basis would condone investigative ‘cutting of corners’. In Bunning v Cross, Stephens and Aickin JJ labelled this ‘a wholly equivocal factor’119 in cases where an alternative exists. On the other hand, if the evidence could not have been obtained at all, without the impropriety—as, for example, where it is of a temporary or evanescent nature—then this ‘may provide some excuse for the action’.120 New South Wales’ courts, on the other hand, have tended to take the view that the impossibility of obtaining the evidence any other way is a matter favouring exclusion, as is the failure to make any effort to comply with the requirements of a lawful means of obtaining the evidence,121 while the Victorian Court of Appeal has reserved its position. Investigators’ motivations may be significant to the relevance of alternatives. If the investigators acted improperly to avoid giving the defendant the benefit of any protections available under the lawful alternative, then exclusion would be favoured. However, if their motivation was to preserve probative evidence in difficult circumstances, then admission would be favoured. In R v Pimentel, investigators boarded a boat carrying cannabis resin at sunset and then brought it to shore, inadvertently committing the offence of importing cannabis. The New South Wales Court of Criminal Appeal held that excluding the evidence of importation at the trial of the boat’s captain, especially when the police decision to board had been made because of the danger of a later boarding in the dark, would be ‘a perverse and erroneous exercise of the discretion’.122

16.5.5 Relationship between sections 138 and 90 There is considerable scope for overlap between the discretion in section 138, and the fairness discretion in section 90, discussed in Chapter 8: Admissions. In R v Swaffield, the facts of which are discussed below, the High Court sought to define the respective roles of the two discretions at common law. Brennan CJ observed that: Of course, the two discretions do overlap and in a sense it is immaterial whether a trial judge considers the facts of a case under one heading rather than another. But a consideration of the nature and degree of the conduct of law enforcement officers under the heading of public policy clarifies the significance of any illegal or improper conduct on the part of law enforcement officers.123

On this approach, issues relating to the conduct of law enforcement officers—as distinct from issues relating to the voluntariness and reliability of the admission, which may have been put into question by the conduct of law enforcement officers—are the sole province of the discretion in section 138.124 Toohey, Gaudron and Gummow JJ, on the other hand, preferred ‘an overall discretion which might take account of all the circumstances of the case to determine whether the admission of the evidence or the obtaining of a conviction on the basis of the evidence is bought at a price which is unacceptable, having regard to contemporary community standards’.125 This ‘overall discretion’ in relation to admissions would effectively merge or combine the common law fairness and public policy discretions, and was said to reflect their uniform evidence legislation

119 Bunning v Cross [1978] HCA 22, [40]; (1978) 141 CLR 54, 80 (Stephen and Aickin JJ). 120 Australian Law Reform Commission, Evidence (Interim), Report No 26 (2005) Volume 1, [964]. 121 See, for example, Australian Securities and Investments Commission (ASIC) v Sigalla (No 2) [2010] NSWSC 792; (2010) 271 ALR 164, [128]. 122 R v Pimentel [1995] NSWCCA 401, [24]; (1999) 110 A Crim R 30, 35. 123 R v Swaffield; Pavic v The Queen [1998] HCA 1, [28]; (1998) 192 CLR 159, 182. 124 See also R v Swaffield; Pavic v The Queen [1998] HCA 1, [136]; (1998) 192 CLR 159, 214 (Kirby J). 125 R v Swaffield; Pavic v The Queen [1998] HCA 1, [69]–[70]; (1998) 192 CLR 159, 194.

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analogues ‘taken in combination’.126 Thus it was that Brennan CJ ruled that, evidence in question, in Swaffield, should have been excluded in the exercise of the public policy discretion. Toohey, Gaudron and Gummow JJ ruled that the evidence should have been excluded, without specifying which of the two discretions should have been exercised to achieve this result. In the subsequent case of Em v The Queen, two members of the High Court indicated that the fairness discretion was residual in nature, and should generally be exercised after the other, more specific, discretions; such as the discretion in section 138.127

16.5.6 Application of the discretion: Covertly recorded admissions The specific issue, that was before the High Court in R v Swaffield; Pavic v The Queen, was whether an admission obtained covertly by investigators could be used by the prosecution. Although both appeals came from non-uniform evidence legislation jurisdictions (as do several of the other cases discussed below), the Court indicated that the same approach should be taken at common law and under the relevant sections of the uniform evidence legislation. Many people are prepared to talk to non-investigators about their own criminal behaviour. In one of the two cases before the High Court, R v Swaffield, the defendant had two conversations with a man who claimed that a relative of his had burned a car. On both occasions, the defendant admitted burning down a rowing club, and destroying some incriminating evidence to deflect police suspicions. In the other case, Pavic v The Queen, the defendant had a conversation with a friend, who said that he was under police suspicion for a murder. The defendant reassured the friend, in the process revealing that the defendant had in fact committed the murder in question. He supplied numerous details in response to further inquiries from the friend. Both defendants had previously refused to answer police questions about their respective crimes. Investigators can obtain the benefit of such admissions by tricking criminals into thinking that their words are being heard by non-investigative ears only. An age-old approach is to conscript or impersonate non-investigators. In R v Swaffield, the man to whom the defendant spoke was, in fact, an undercover police officer. In Pavic v The Queen, the police had enlisted the friend in their investigation of the defendant. A more modern technique is to use covert listening devices or telephone taps. Both Swaffield’s and Pavic’s confidants were wearing a ‘wire’. In Eastman v The Queen [1997] 76 FCR 9, investigators obtained numerous admissions made by the defendant while talking aloud to himself, courtesy of listening devices planted at his flat. Covert investigation is not, of itself, illegal (although, as mentioned at [16.5.2.2] under the heading ‘Investigative acts permitted under police law’ and at [16.5.3.3] under the heading ‘Evidence affected by impropriety or illegality’, the use of listening devices and telephone taps typically requires a warrant). Indeed, tricking a suspect into thinking that a questioner is not acting on behalf of investigators may alleviate some of the concerns about coercion and inducements discussed in Chapter 8: Admissions. That is not to say that deception cannot raise distinct concerns about reliability. Notably, whereas people may be unlikely to make up stories about their own criminality to criminal investigators, they may be inclined to do so to certain others. For example, in Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629, the defendant, engaged in an act of drug importation, made admissions to an undercover agent posing as a dealer about his past role in similar acts. At his sentencing hearing, he argued that, in fact, his involvement was

126 R v Swaffield; Pavic v The Queen [1998] HCA 1, [70]; (1998) 192 CLR 159, 194. 127 See Em v The Queen [2007] HCA 46, [109]; (2007) 232 CLR 67, 104 (Gummow and Hayne JJ).

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a ‘one-off ’, and that his statements to the agent were boasts designed to facilitate his involvement in a criminal syndicate. In Swaffield, the High Court approached the issue of covert questioning on the basis that the admissions made by the defendant were both voluntary and reliable, and the conduct of the investigators was lawful. This meant that admissibility came down to whether the way in which the admission was obtained was unacceptable according to contemporary community standards. To answer this question, the majority expressly adopted the approach taken by the Canadian Supreme Court, which the majority characterised as ‘an approach which looks to the accused’s freedom to choose to speak to the police and the extent to which that freedom has been impugned’.128 The Canadian approach distinguishes between deceptively listening to an admission, and deceptively prompting an admission. In R v Hebert, Sopinka J wrote: [I]n the absence of eliciting behaviour on the part of the police, there is no violation of the accused’s right to choose whether or not to speak to the police. If the suspect speaks, it is by his or her own choice, and he or she must be taken to have accepted the risk that the recipient may inform in the police.129

Thus, if all that investigators do is engage in conduct that enables them to hear words that the defendant would have said anyway, then the defendant’s freedom of choice has not been impugned; instead, the defendant simply made the wrong choice in the mistaken belief that the police were not listening. For example, covert recordings of conversations where neither party knew that the conversation was being recorded may be in this category.130 In Vale v The Queen (2001) 120 A Crim R 322, the Western Australian Court of Criminal Appeal upheld the use of an admission obtained after the defendant had been falsely told by a friend that he was not wearing a wire, because the friend had nonetheless not prompted the defendant to make any admissions. However, if investigators do something that causes the defendant to talk, but fail to warn the defendant that they are listening, then the prompted admission will be inadmissible. In R v Broyles, the Canadian Supreme Court observed that characterising investigative conduct as causally linked to the defendant’s admission depended on a number of factors. One concern is: the nature of the exchange between the accused and the state agent. Did the state agent actively seek out information such that the exchange could be characterized as akin to an interrogation, or did he or she conduct his or her part of the conversation as someone in the role the accused believed the informer to be playing would ordinarily have done? The focus should not be on the form of the conversation, but rather on whether the relevant parts of the conversation were the functional equivalent of an interrogation.131

In R v Swaffield, the High Court unanimously held that the undercover agent’s ruse of claiming that his brother-in-law had started a fire was conduct that elicited the defendant’s admissions about his own arson. So, those admissions should have been excluded by the trial judge. This consequence would not, however, have followed if the defendant had initiated the discussion of arson. Nor would it arise if the agent’s prompting remarks were part of the ‘flow of the conversation’: R v Liew [1999] 3 SCR 227. The Canadian Supreme Court has also held that, even if the investigators do not do any specific thing to cause the defendant to speak, the admission may nonetheless be regarded as elicited because of: the nature of the relationship between the state agent and the accused. Did the state agent exploit any special characteristics of the relationship to extract the statement? Was there a relationship of trust

128 129 130 131

R v Swaffield; Pavic v The Queen [1998] HCA 1, [91]; (1998) 192 CLR 159, 202. R v Hebert [1990] 2 SCR 151, 173. See, for example, R v Shaukat Ali, unreported, 1 February 1991; see The Times, 5 February 1991. R v Broyles [1991] 3 SCR 595, 611 (Iacobucci J).

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between the state agent and the accused? Was the accused obligated or vulnerable to the state agent? Did the state agent manipulate the accused to bring about a mental state in which the accused was more likely to talk?132

A clear example of this circumstance would be police deception aimed at making the defendant think that her or his admissions would not be used as evidence; for example, a police officer’s promise that the defendant could talk ‘off the record’, or the covert taping of a defendant’s conversations with a lawyer (which would, in any case, be protected by client legal privilege). A less formal example occurred in R v Hall,133 where an undercover police officer answered a ‘lonely hearts’ advertisement placed by a suspect, entered into a romantic relationship with him, and then extracted admissions as a condition for agreeing to marry him. Arguably, admissions obtained in response to false stories fed by investigators to the media would also be excluded on this basis. Both in Canada and Australia, the courts’ concern is with admissions covertly prompted by the state. So, there is no bar on the use of admissions that are deceptively elicited by private citizens. In R v Lowe [1997] 2 VR 465 and R v Walker [2000] NSWCCA 130, the courts refused to exclude admissions surreptitiously obtained by prison inmates at their own initiative, in order to curry favour with the authorities. However, the courts will exclude admissions if the private citizen was procured by the state to act as its ‘agent’: R v Pfennig (No 1) (1992) 57 SASR 507. But in such cases, the application of the High Court’s test may be altered by the nature of the relationship between the agent and the defendant. In R v Burt, Thomas J questioned whether admissions elicited as part of a ‘real conversation between two citizens who had a particular relationship with each other’134 could be regarded as having been ‘elicited’ and, in addition, doubted whether a complainant who was given advice by the police on how to obtain reliable evidence to prove her allegations could be regarded as an agent of the state. In R v M [2002] QCA 486; (2002) 135 A Crim R 324, the defendant made admissions of sexual abuse to his 15-year-old granddaughter during a teary phone call that she made at the instance of the police. The Queensland Court of Appeal, noting the comparative ages of the parties to the conversation, held that the defendant’s admissions were not elicited, despite the complainant’s repeated direction of the conversation to the topic of the abuse. The effect of R v Swaffield; Pavic v The Queen, and the case law that has grown up around it, has been summarised in the following way by two judges of the New South Wales Court of Criminal Appeal in a case in which the complainant in a sexual offence trial had covertly recorded conversations with the alleged perpetrator of the offences: In our view, without being exhaustive, the following propositions relevant to the present case can be extracted from the authorities to which we have referred concerning the admissibility of covertly recorded conversations: (a) The underlying consideration in the admissibility of covertly recorded conversations is to look at the accused's freedom to choose to speak to the police and the extent to which that freedom has been impugned: Swaffield (at [91]) per Toohey, Gaudron and Gummow JJ; (at [155]) per Kirby J. (b) If that freedom is impugned, the court has a discretion to reject the evidence, the exercise of which will turn on all the circumstances which may point to unfairness to the accused if the confession is admitted: Swaffield (at [91]); a conclusion that some or all of the Broyles factors were present did not lead to the admissions being excluded in either Pavic or Carter’s cases; (c) Even if there is no unfairness 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: Swaffield (at [91]).

132 Ibid. 133 (1994, Issue 140) The Weekly Telegraph, 140. 134 R v Burt [2000] 1 Qd R 28, 33.

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(d) The question whether the conversation was recorded in circumstances such that it might be characterised as either unfair and/or improper include whether the accused had previously indicated that he/she refused to speak to the police; (e) The right to silence will only be infringed where it was the informer who caused the accused to make the statement, and where the informer was acting as an agent of the state at the time the accused made the statement. Accordingly, two distinct inquiries are required: (i) a threshold question, was the evidence obtained by an agent of the state? (ii) was the evidence elicited? (f) A person is a state agent if the exchange between the accused and the informer would not have taken place, in the form and manner in which it did take place, but for the intervention of the state or its agents: Broyles (at [30]); (g) Absent eliciting behaviour on the part of the police, there is no violation of the accused’s right to choose whether or not to speak to the police. If the suspect speaks, it is by his or her own choice, and he or she must be taken to have accepted the risk that the recipient may inform the police: Hebert; (h) Admissions will have been elicited if the relevant parts of the conversation were the functional equivalent of an interrogation and if the state agent exploited any special characteristics of the relationship to extract the statement; evidence of the instructions given to the state agent for the conduct of the conversation may also be important: Broyles. (i) The fact that the conversation was covertly recorded is not, of itself, unfair or improper, at least where the recording was lawful.135 We would add that views may differ about whether a complainant is a state agent, even if the conversation is recorded in circumstances facilitated by the police … For our part we would not readily apply the label of state agent to a complainant speaking to a suspect who had not been charged, nor refused to speak to police. Rather we would look at the whole relationship as revealed by the participants’ past history and what is revealed by the actual conversation. It may be relevant to consider whether the police scripted the conversation.

A notable omission from this list of factors to be taken into account is the seriousness of the offence, even though this is recognised as one of the considerations to be taken into account in exercising both the common law public policy discretion, and the discretion in section 138(1).136 This is no doubt due to the fact that, in Pavic v The Queen, the High Court did not refer to the fact that Pavic was charged with murder, whereas Swaffield was only charged with arson; even though, in the authors’ view, this is the only possible justification for the different outcomes in the two cases.137 More recently, however, some members of the High Court have been willing to admit the relevance of this consideration to the operation of the discretion,138 even in cases that otherwise fall within the scope of the strong statements of principle made in R v Swaffield; Pavic v The Queen.

135 Pavitt v The Queen [2007] NSWCCA 88, [70]–[71]; (2007) 169 A Crim R 452, 487, 488 (McColl JA and Latham J); see also A Palmer, ‘Applying Swaffield: Covertly Obtained Statements and the Public Policy Discretion’ (2004) 28 Criminal Law Journal 217. 136 For a rare example of this being articulated as a consideration, see R v Tofilau [2003] VSC 188, [82(f)]; [2003] 13 VR 1, 24 (Osborn J); discussed in A Palmer, ‘Applying Swaffield Part II: Fake Gangs and Induced Confessions’ (2005) 29 Criminal Law Journal 111, 114–115. 137 See A Palmer, ‘Police Deception, the Right to Silence and the Discretionary Exclusion of Confessions’ (1998) 22 Criminal Law Journal 325; and A Palmer, ‘Applying Swaffield: Covertly Obtained Statements and the Public Policy Discretion’ (2004) 28 Criminal Law Journal 217, 224. 138 See Tofilau v The Queen [2007] HCA 39, [112]; (2007) 231 CLR 396, 432 (Gummow and Hayne JJ), and 527; [410] and 528; [413] (Callinan, Heydon and Crennan JJ).

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SUMMARY Evidence may be subject to discretionary exclusion under section 135, where the court forms the view that the probative value of the evidence is substantially outweighed by the danger that the evidence might: • • •

be unfairly prejudicial to a party; or be misleading or confusing; or cause or result in undue waste of time.

Under section 136, the court may instead limit the use to be made of the evidence, if there is a danger that a particular use of the evidence might: • •

be unfairly prejudicial to a party; or be misleading or confusing.

Under section 137, the court in a criminal proceeding is required to exclude prosecution evidence, if its probative value is outweighed by the danger of unfair prejudice to the defendant. Under section 138, investigative conduct may lead to the exclusion of evidence, if three conditions are satisfied: •

•

•

The investigators acted illegally or improperly: – An investigative act will be illegal if: – it was an act that could not be lawfully done by an ordinary person; and – it was not within the terms of a police power. – An investigative act will be improper if it is clearly inconsistent with minimum standards of acceptable investigative conduct. The evidence was: – obtained improperly or illegally, including: – evidence wrongly seized; – evidence of a wrongly seized item; – evidence of a wrongly performed procedure; – evidence of a wrongly obtained confession; – evidence of wrongly procured behaviour; – covertly recorded admissions that have been improperly elicited by investigators or their agents; or – obtained as a consequence of the impropriety or illegality, unless (arguably) the taint of the original illegality had dissipated. The trial judge decides that the undesirability of admitting the evidence outweighs the desirability of admitting it, having regard to: – the seriousness of the offence and the significance of the evidence; – the seriousness of the investigative misconduct; and – the other factors relevant to the public interest in exclusion.

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PART 3

PROOF

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INTRODUCTION This chapter is concerned with two aspects of proof: the burden of proof, and the standard of proof. The allocation of the burden of proof determines which party to a proceeding is under an obligation to prove, or to lead evidence of, a particular fact in issue; the standard of proof is concerned with the question of the degree to which the facts in issue must be proved. Different answers must be given to these questions, depending on whether the proceedings are civil or criminal in nature.

17.1 THE BURDEN OF PROOF The burden of proof is concerned with the following question: Which party has the obligation of proving (or disproving) a particular fact or facts in issue? The question is important, because it determines which party is under an obligation to lead evidence of a particular fact, and determines which party will lose if the court is not satisfied that the fact has been proved. Although it is commonly dealt with in evidence textbooks, the allocation of the burden of proof is actually a matter for the relevant area of substantive law, rather than the law of evidence. For this reason, the uniform evidence legislation says nothing about the burden of proof, although it does deal with the standard of proof. As a consequence, the discussion here will be fairly brief. It is common to distinguish between two different types of burden of proof. There are different ways of referring to these different burdens, but the most widely used are probably the ‘legal’ burden, and the ‘evidential’ burden.

17.1.1 The legal burden The legal burden determines which party fails, if the court finds that a particular fact in issue has not been proven to the standard required. In civil proceedings, the general rule is that the legal burden of proving a particular fact in issue lies on the party that alleges that fact; in other words, those who allege must prove. The plaintiff therefore carries the burden of proving the facts pleaded in the statement of claim that constitutes the cause of action. The defendant carries the burden of proving any further facts pleaded in the statement of defence that would establish the existence of a defence. Where the statement of defence merely involves the denial of facts pleaded by the plaintiff (as opposed to the pleading of further facts constituting a defence), the burden of proof is entirely on the plaintiff. In a negligence action, for example, the plaintiff would have the burden of proving that the defendant was negligent; and the defendant would have the burden of proving that the plaintiff was guilty of contributory negligence, or had voluntarily assumed the risk.

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In criminal proceedings, the defendant is ‘presumed innocent’. The presumption of innocence means that the prosecution generally has the burden of proof in criminal proceedings: the charge fails if the prosecution does not prove, to the standard required, all of the facts that make up the charge: Woolmington v DPP [1935] AC 462. Therefore, the general rule in criminal proceedings is that the prosecution carries the legal burden of proving (or disproving) every fact in issue. This general rule extends to defences such as self-defence or provocation. This means that, if the issue of self-defence or provocation is raised, then the prosecution must not only prove the facts that would constitute the offence, but must also prove that the defendant was not acting in self-defence or under provocation. The main common law exception to this general rule is the defence of insanity: the burden of proving insanity lies on the defendant. Some statutes also impose a burden of proving a fact on the defendant. For example, a statute might require a person charged with unlawful possession of a controlled substance to prove that his or her possession of the substance was not ‘unlawful’, rather than requiring the prosecution to prove that it was.

17.1.2 The evidential burden To say that the prosecution carries the legal burden of proof, in relation to defences such as selfdefence is not, however, the end of the story. The defendant also bears a burden: the burden of leading sufficient evidence to raise the issue of self-defence properly. Unless the judge is satisfied that there is sufficient evidence to leave the issue of self-defence to the jury, it will not be left for its consideration. Wigmore called this the burden of ‘passing the gauntlet of the judge’, as distinct from the burden of persuading the jury.1 It is this burden that is referred to as the ‘evidential burden’. The evidential burden, then, is the duty of leading sufficient evidence in relation to a particular fact, so as to properly make that fact an issue in the proceedings. In civil proceedings, the general rule is that the evidential burden follows the legal burden. In other words, if a party carries the burden of proving a particular fact in issue, then it also carries the burden of leading evidence in relation to that issue. In criminal proceedings, on the other hand, the general rule is the same as that which applies to the legal burden in civil proceedings: the party that alleges a fact must lead evidence in support of their allegation. This means that the defence carries the evidential burden, in relation to any facts that would constitute a defence, while the prosecution obviously carries the evidential burden in relation to the facts that would constitute the offence.

17.1.3 The burden of proof on a voir dire Often the admissibility of evidence turns on questions of fact. For example, under section 84(1), an admission is not admissible unless the court is satisfied that its making was not influenced by violent, oppressive, inhuman, or degrading conduct. The burden of proving the facts that determine the admissibility of the evidence varies from rule to rule. However, as a general guide, if the class of evidence to which the item of evidence belongs is said to be inadmissible, unless particular facts are found to exist, then the burden of proving those facts will lie on the party seeking to adduce the evidence. Similarly, if the class of evidence to which the item of evidence belongs is said to be admissible, unless particular facts are found to exist, then the burden of proving those facts will usually lie on the party opposing the admission of the evidence. In other words, the way in which the rule is expressed will usually provide significant guidance as to where the burden of proof lies.

1 J Wigmore, Wigmore on Evidence, 3rd edn, 1940, Boston: Little, Brown & Co, §2487.

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Under section 84(1), for example, the burden is clearly on the prosecution to prove that the making of the admission was not influenced by such conduct. In this respect, ‘burden’ means legal burden: failure to satisfy the court to the standard required will result in the party that carries the burden of proof, either having the evidence they seek to adduce ruled inadmissible, or will result in the evidence being admitted over their objection. A burden akin to an evidential burden may, however, be imposed on the other party. According to section 84(2) of the legislation, for example, section 84(1) only applies ‘if the party against whom the evidence of the admission is adduced has raised in the proceedings an issue about whether the admission or its making were so influenced’. While this does not appear to require the party to actually lead evidence of violent, oppressive, inhuman, or degrading conduct, it does clearly impose the burden of raising the issue on them.

17.2 THE STANDARD OF PROOF The standard of proof is concerned with the question of the degree to which the tribunal of fact must be satisfied of the existence of a particular fact in issue, before it can find that the fact does exist. The standard of proof is dealt with in Part 4.1 of the uniform evidence legislation, which essentially re-states the common law rules. The standard of proof that we are concerned with here is that which corresponds to the legal, rather than the evidential, burden of proof. Thus, the legislation consistently talks about the degree to which the ‘case of a party’ has been proved, where ‘case of a party’ is defined in the Dictionary as, ‘the facts in issue in respect of which the party bears the legal burden of proof ’.

17.2.1 Civil proceedings In civil proceedings, the standard of proof is ‘on the balance of probabilities’. As section 140(1) of the legislation states: 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.

This standard is often translated as meaning ‘more likely than not’. This means that, if the tribunal is not satisfied that the case of the plaintiff is more probable than the case of the defendant, then it must find for the defendant. However, being satisfied that the plaintiff ’s case is more probable than the defendant’s will not in itself suffice, as the court might consider both parties’ cases to be improbable.2 To succeed, the plaintiff must satisfy the court that its case is more probable than not. Although the standard is expressed in terms of probabilities, however, the tribunal of fact is not actually required to carry out mathematical calculations of probability, in order to decide which of the competing hypotheses is more probable. Where the case is based on circumstantial evidence, the circumstances must be sufficient to raise ‘a reasonable and definite inference’, which is not dependent on conjecture.3 2 See, for example, Jackson v Lithgow City Council [2008] NSWCA 312, [11]–[12]; [2008] Aust Torts Reports 81-981; and Kuligowski v Metrobus [2004] HCA 34, [60]; (2004) 220 CLR 363, 385 (Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ). 3 See Westbus Pty Ltd (Administrators Appointed) v Ishak [2006] NSWCA 198, [20]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132 [38]; (2007) 162 FCR 466, 482 (Weinberg, Bennett and Rares JJ); and NOM v Director of Public Prosecutions [2012] VSCA 198, [124].

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Section 140(2) contains a gloss on section 140(1), providing that: 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.

This gloss preserves what is sometimes (and misleadingly) referred to as the ‘Briginshaw standard’, after the decision in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, which operates in cases where the action involves a serious allegation of wrongdoing on the part of one of the parties.4 In fact, Briginshaw confirmed that it is the usual standard of proof, on the balance of probabilities, which applies in such cases. However, as the High Court explained in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd, ‘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’; and, given the ‘conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct’, ‘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’.5 In other words, although the same standard of proof applies, a stronger body of evidence may be required to persuade the court that the standard has been reached. In drafting section 140(1), the Australian Law Reform Commission intended to make it clear that actual belief in the case of the party was not necessary, in order for the court to find in that party’s favour.6 However, a number of judgments under the legislation have affirmed the view of Dixon J in Briginshaw that, where a fact must be proved, the fact finder ‘must feel an actual persuasion of its occurrence or existence before it can be found’, and that it cannot be found ‘as a result of a mere mechanical comparison of probabilities independently of any belief in its reality’.7 Any distinction between a belief, and a feeling of actual persuasion, is no doubt a fine one;8 and whether a ‘mere mechanical comparison of probabilities’ really is insufficient is doubtful in light of decisions, such as that of the High Court in Strong v Woolworths Limited.9 In that case, the appellant slipped on a greasy chip on a sidewalk outside a Big W store that was under the care and control of the respondent. It was not disputed that the respondent owed a duty to take reasonable care for the safety of persons coming into the sidewalk sales’ area; or that, on the day of the appellant's fall, the respondent did not have any system in place for the periodic inspection and necessary cleaning of the sidewalk sales’ area. The issue was whether the

4 See, for example, Hammoud Brothers Pty Ltd v Insurance Australia Ltd [2004] NSWCA 366, [28]–[31]; (2005) 13 ANZ Ins Cas 61-639; K v The Queen (1997) 22 Fam LR 592, 599, 602–3 (Baker, Kay and Morgan JJ). 5 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66, [2]; (1992) 110 ALR 449, 450 (Mason CJ, Brennan, Deane and Gaudron JJ). 6 See Australian Law Reform Commission, Evidence (Interim), Report No 26 (2005) Volume 1, [998]. 7 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 361. See, for example, Seltsam Pty Ltd v McGuinness [2002] NSWCA 29 [136]; (2000) 49 NSWLR 262, 284; and Nguyen v Cosmopolitan Homes [2008] NSWCA 246, [55]; but c.f. Qantas Airways Ltd v Gama [2009] FCAFC 69, [139]; (2008) 167 FCR 537, 575; and Johnson v Page [2007] FamCA 1235, [72]; (2007) FLC 93-344; Morley v Australian Securities and Investment Commission [2010] NSWCA 331; (2010) 274 ALR 205, [750]–[753]; Brown v New South Wales Trustee and Guardian [2012] NSWCA 431, [52]; and NOM v Director of Public Prosecutions [2012] VSCA 198, [124]. 8 See the comments of Heydon J in Australian Securities and Investment Commission v Hellicar [2012] HCA 17; (2012) 247 CLR 347, [255], suggesting that persuasion and belief are the same thing. 9 [2012] HCA 5; (2012) 246 CLR 182, [31]–[38].

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respondent’s negligence had caused the appellant’s injury, and that depended on the period of time in which the chip had been lying there. If the chip had been deposited on the sidewalk shortly before the appellant slipped on it, then, even if the sidewalk had been periodically inspected and cleaned, the chip would still have been there at the time that the appellant was walking in the area. In the New South Wales Court of Appeal, the respondent argued successfully that the appellant had failed to prove causation, because she had failed to lead evidence from which it could be concluded that the chip had been deposited more than fifteen or twenty minutes before her fall (fifteen or twenty minutes being the suggested interval between inspections). The Court of Appeal reached this conclusion partly on the basis of the proposition that chips are more likely to be eaten at lunchtime; that lunchtime starts at 12 p.m.; that the appellant slipped at 12.30 p.m., so the chip was as likely to have fallen between 12 p.m. and 12.15 p.m. (when there should have been an inspection), as between 12.15 p.m. and 12.30 p.m. (when the appellant slipped). That being the case, it could not be said to be more likely than not that a periodic inspection of the sidewalk area would have detected the chip, and prevented the appellant’s fall. However, the High Court rejected the proposition that chips are more likely to be eaten for lunch, than for breakfast or a snack, and held that ‘the probabilities favoured the conclusion that the chip was deposited in the longer period between 8.00 a.m. [when trading in the sidewalk area commenced] and 12.10 p.m. [when there should have been an inspection, assuming inspections every 20 minutes] and not the shorter period between 12.10 p.m. and the time of the fall’.10 This is pure probabilistic reasoning.

17.2.2 Criminal proceedings In criminal proceedings, the prosecution case must, of course, be proved ‘beyond reasonable doubt’.11 However, any facts, in relation to which the defendant bears the legal burden of proof (such as a defence of insanity), need only be proved to the civil standard. Section 141(2) of the legislation thus provides that: In a criminal proceeding, the court is to find the case of a defendant proved if it is satisfied that it has been proved on the balance of probabilities.

When directing a jury on the criminal standard of proof, the common law attitude is that a judge should generally refrain from attempting to explain what is meant by ‘beyond reasonable doubt’.12 Nevertheless, the following comments of Denning J are perhaps helpful to practitioners and students, if not jurors: Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt … If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence ‘of course it is possible but not in the least probable’, the case is proved beyond reasonable doubt, but nothing short of that will suffice.13

In Victoria, however, section 21 of the Jury Directions Act 2013 now permits a judge to indicate, among other things, that ‘a reasonable doubt is not an imaginary or fanciful doubt or an unrealistic possibility’, and to ‘adapt his or her explanation of the phrase “proof beyond reasonable doubt” in order to respond to the particular question asked by the jury’. 10 11 12 13

[2012] HCA 5; (2012) 246 CLR 182, [38]. See s 141(1) of the legislation. See Green v The Queen [1971] HCA 55; (1971) 126 CLR 28. Miller v Minister of Pensions [1947] 2 All ER 372, 373.

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In the context of a case based on circumstantial evidence, the tribunal is entitled to find that guilt has been proven beyond a reasonable doubt, only if it is satisfied that there is no rational hypothesis consistent with innocence.14 In other words, guilt is proven beyond reasonable doubt, only if the circumstances are such as to render unreasonable any hypotheses consistent with innocence. If a hypothesis consistent with innocence cannot be excluded as unreasonable, then the defendant must be acquitted.15 Moreover, where a particular fact constitutes an ‘indispensable link in a chain of reasoning towards an inference of guilt’, then that fact must also be proven beyond a reasonable doubt.16 In applying this test, courts tend to rely on a contrasting analogy between links in a chain of proof, and strands in a cable of proof. A cable is composed of a number of independent strands and gains its strength from the combined effect of these strands. If one strand in the cable breaks, the cable itself does not. By contrast, a chain is a series of dependent and connected links: if one link breaks, then the chain breaks. Thus, where the prosecution case has several independent ‘strands’, none of them need to be proved beyond reasonable doubt. The standard of proof, beyond reasonable doubt, only applies to the actual elements of the offence itself. If, on the other hand, the prosecution case depends on a single chain of inferences, each link in that chain must be proved beyond reasonable doubt. The logic of this distinction is, however, clouded by a number of judgments, which suggest that where tendency reasoning forms part of the prosecution case, the tendency must be proved beyond reasonable doubt, even where it merely forms part of a strand in a cable of proof.17 The justification for such an approach is that tendency evidence may be of ‘such practical importance’, in the context of a case, that it would be ‘prudent to direct the jury that they must be satisfied about it beyond reasonable doubt’.18 This does not mean, however, that the defence can, by focusing its attacks on one particular aspect of the prosecution case, turn that aspect into an indispensable link that must be proved beyond reasonable doubt.19

17.2.3 Facts relevant to the admissibility of evidence Where the party seeking to adduce an item of evidence is required to prove a particular fact or facts, before the evidence can be admitted, the standard of proof required in relation to that fact or facts is the civil standard of ‘on the balance of probabilities’. The same is true where the party seeking to have an item of evidence excluded is required to prove a particular fact or facts, in order to trigger the operation of the relevant exclusionary rule. This is so even in criminal proceedings. If, for example, the prosecution is seeking to adduce evidence of an admission allegedly made by the defendant, and there is some dispute in relation to the admission, then a voir dire into the admissibility of the admission will be held.20 The standard to which facts relevant to the admissibility

14 See Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521 and Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573. 15 See also the discussion of circumstantial evidence of identity in Chapter 13: Identification, [13.2]. 16 Shepherd v The Queen [1990] HCA 56, [5]; (1990) 170 CLR 573, 579 (Dawson J); for a discussion of what this actually means, see Hamer, D, ‘The Continuing Saga of the Chamberlain Direction: Untangling the Cables and Chains of Criminal Proof ’ (1997) 23 Monash Law Review 43. 17 See, for example, R v Hagarty [2004] NSWCCA 89, [24]–[25] and [30]–[34]; (2004) 145 A Crim R 138, 144–145; but see also HML v The Queen [2008] HCA 16; (2008) 235 CLR 334. 18 R v LRG [2006] VSCA 288, [40]; [2006] 16 VR 89, 99. 19 See, for example, Velevski v The Queen [2002] HCA 4, [44]; (2002) 187 ALR 233, 244 (Gleeson CJ and Hayne J). 20 Section 189 contains provisions dealing with voir dires; see also Chapter 8: Admissions.

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of evidence must be proved is the civil standard of proof on the balance of probabilities. Section 142(1) thus provides that: Except as otherwise provided by this Act, in any proceeding the court is to find that the facts necessary for deciding: (a) a question of whether evidence should be admitted or not admitted, whether in the exercise of a discretion or not; or (b) any other question arising under this Act; have been proved if it is satisfied that they have been proved on the balance of probabilities.21

In determining whether it is so satisfied, the court is required by section 142(2) to take into account ‘the importance of the evidence in the proceeding,’ and ‘the gravity of the matters alleged in relation to the question’.

SUMMARY Civil proceedings In civil proceedings: •

• • •

the legal burden of proving facts in issue rests on the party that alleges those facts. This means that the burden of proving the facts that constitute the cause of action rests on the plaintiff, and that the burden of proving any facts that would constitute a defence rests on the defendant; the evidential burden follows the legal burden; the standard to which facts in issue must be proved, before they can be found to exist, is ‘on the balance of probabilities’; and the same standard also applies to facts relevant to the admissibility of evidence.

Criminal proceedings In criminal proceedings: • • • •

•

the legal and evidential burden of proving the facts that constitute the offence rests on the prosecution; in general, the legal burden of disproving the facts that would constitute a defence also rests on the prosecution; there are statutory exceptions to this general rule. The only common law exception, however, is in relation to the defence of insanity; the defendant is, however, under an evidential burden in relation to all defences—the issue of the defence will not be left to the jury, unless the judge is satisfied that the defence is open on the evidence; where the legal burden of proving facts in issue rests on the prosecution, the standard to which those facts must be proved is ‘beyond reasonable doubt’;

21 Sections 57(1), 87(1), 88, 125(2), 131(3) and (4), and 146(2) do provide otherwise, setting a standard of either reasonable openness, or the existence of reasonable grounds. For an interesting application of the general standard, see Hinneberg v Brannaghan [2009] VSC 356.

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• •

•

in cases based on circumstantial evidence, this standard is reached only if the evidence renders unreasonable all hypotheses consistent with innocence; where the legal burden of proving facts in issue rests on the defence, the standard to  which those facts must be proved is the standard of ‘on the balance of probabilities’; and the same standard—‘on the balance of probabilities’—also applies to facts relevant to the admissibility of evidence.

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INTRODUCTION Some facts are so obvious, or well known, or indisputable, that requiring them to be proved would simply be a waste of time. The doctrine of judicial notice may operate with respect to such facts so as to relieve the party whose case depends on the establishment of such a fact of the need to lead evidence of it. Other facts are exempted from the requirement of proof by means of the pleading process, whereby a party may admit the existence of certain facts, in order to identify more precisely the points of dispute between the parties and to reduce the length, and therefore the costs, of the proceedings. Each of these two processes, by which facts can be exempted from the requirement of proof, is considered in turn.

18.1 THE DOCTRINE OF JUDICIAL NOTICE The doctrine of judicial notice is a common law doctrine, which the uniform evidence legislation re-states in a simplified and clarified form. However, it is unclear whether or not the uniform evidence legislation provisions have entirely displaced the common law doctrine. On the one hand, the High Court has recently suggested that section 144 leaves no room for the operation of the common law doctrine;1 on the other hand, a specialised tribunal has been held entitled to rely upon knowledge it has acquired in the course of its work, even though this is not provided for under the legislation.2 Despite this uncertainty, this chapter focuses on the legislative provision, and the four main categories of fact, which section 144 recognises as being within the scope of the doctrine of judicial notice. Before turning to these categories, however, we discuss the way in which judicial notice works.

18.1.1 The effect of judicial notice When a fact is one of which judicial notice can be taken, a party is relieved of the obligation of leading evidence to prove the fact. A party may thus request that the judge take notice of a particular fact either during the presentation of its case or after its close. In the former case, the request will be intended to relieve the party of the obligation to lead evidence of the fact; in the latter, the request may be intended to cure an omission by the party, by having the judge take notice of a fact that the party neglected to prove. 1 Aytugrul v The Queen [2012] HCA 15; (2012) 247 CLR 170, [21]. 2 ICI Australia Operations Pty Ltd v WorkCover Authority (NSW) [2004] NSWCA 55, [219]–[232]; (2004) 60 NSWLR 18, 62.

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Where a fact is one of which judicial notice can be taken, this does not necessarily prevent a party from leading evidence of that fact, or even attempting to prove that the fact is untrue. This is specifically contemplated by the uniform evidence legislation, in relation to the second and third categories below, with section 144(4) providing that: The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced.

Of course, as the Australian Law Reform Commission pointed out: In the vast majority of cases the issue will never arise because the tribunal of fact will be applying the knowledge it shares with the rest of the community. Where an issue does arise, however, as to the taking of judicial notice of a specific fact, it must be possible for the parties to place whatever material they think fit before the tribunal of fact on the issues of whether the proposition is one of which judicial notice should be taken and what precise proposition should be accepted. There would seem to be no reason in principle why this could not be done by producing formal evidence.3

However, given that judicial notice can only be taken of ‘knowledge that is not reasonably open to question’,4 section 144(4) is unlikely to result in a party successfully proving that the knowledge of which the court is proposing to take judicial notice is untrue. Rather, its purpose is to provide such a party with an opportunity to be heard on the issue.5

18.1.2 Australian law In Australian jurisdictions, the state of the law is a matter of which proof need not be given, and about which a judge is entitled to inform him- or herself, in any way he or she sees fit.6 The judge is not, for example, bound to accept the submissions put to him or her by counsel, and is entitled to carry out his or her own research into the state of the authorities. Section 143(1) of the legislation states the rule as follows: Proof is not required about the provisions and coming into operation (in whole or in part) of: (a) an Act, a State Act, an Act or Ordinance of a Territory or an Imperial Act in force in Australia;7 or (b) a regulation, rule or bylaw made, or purporting to be made, under such an Act or Ordinance; or (c) a Proclamation or order of the Governor General, the Governor of a State or the Administrator or Executive of a Territory made, or purporting to be made, under such an Act or Ordinance; or (d) an instrument of a legislative character (for example, a rule of court) made, or purporting to be made, under such an Act or Ordinance, being an instrument that is required by or under a law to be published, or the making of which is required by or under a law to be notified, in any government or official gazette (by whatever name called).

Section 143(2) further provides that a ‘judge may inform him- or herself about those matters in any way that the judge thinks fit’.

3 4 5 6

Australian Law Reform Commission, Evidence (Interim), Report No 26 (2005) Volume 1, [977]. Section 144(1). See, for example, Director of Public Prosecutions (NSW) v Gamelis [2010] NSWSC 787, [51]. It should be noted, however, that different rules apply to proof of foreign law. The rules regulating proof of foreign law, which fall outside the scope of this work, are contained in Part 4.6, Division 4, ss 174–6. 7 Section 143(1)(a) of the Victorian and Tasmanian Acts instead refer to ‘an Act, an Imperial Act in force in Australia, a Commonwealth Act, an Act of another State or an Act or Ordinance of a Territory’, and the language of the Northern Territory Act is very similar.

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18.1.3 Facts forming part of common knowledge Section 144(1)(a) of the uniform evidence legislation provides that proof is not required about ‘knowledge that is not reasonably open to question’ and that is ‘common knowledge in the locality in which the proceeding is being held or generally’. This category contains facts that are so well known, either generally or locally, that there is no point in requiring proof of them. The judge is therefore entitled to ‘acquire knowledge of that kind in any way that the judge thinks fit’.8 Moreover, the court (including the jury, if there is one) is under an obligation ‘to take knowledge of that kind into account’.9 These provisions reflect the common law rules about matters of common knowledge. The key to determining whether or not a fact falls within this category is the requirement that the fact must ‘not [be] reasonably open to question’. An oft-cited example of general common knowledge that would satisfy this test is the fact that Christmas is celebrated on 25 December. An example of local common knowledge that would satisfy this test would be the fact (in proceedings held in Melbourne) that the Victorian Arts Centre is on St Kilda Road, or that the Tullamarine Freeway leads to the airport. Cross on Evidence lists a series of examples of matters that courts have been either prepared, or not prepared, to judicially notice;10 but it is probably more useful to reproduce the following general comments about the kind of facts of which judicial notice may be taken: as a matter of everyday experience a fact which is obvious to one person may not be so to another. The caution of courts means that only facts which are not seriously disputable tend to fall within the doctrine. Thirdly, the readiness of the judicial mind to take note of any given fact will depend upon the time at which the exercise is undertaken. A fact which was arcane a generation ago may be a commonplace today. This is of particular relevance in the case of scientific facts.11

So, for example, in Kent v Wotton & Byrne Pty Ltd, the Court considered the extent to which knowledge about the dangers of asbestos had become common knowledge, with the Court ultimately finding that, given the substantial media publicity and public discussion of asbestos’ exposure, it was now common knowledge that ‘a person exposed to asbestos might not have any detectable medical condition as a result for many years, but might still become ill and die as a result of that exposure’.12 On the other hand, in Aytugrul, the High Court declined to take judicial notice of some suggested ‘facts’ about DNA statistics that were said to show that the probative value of evidence expressing the results of DNA analysis as an exclusion percentage is always outweighed by the danger of unfair prejudice to the defendant: It may readily be accepted that … research has been undertaken into whether some ‘forms of expressing [DNA] statistics carry greater persuasive potential than others’. It is evident that numerous articles have been published in well-respected journals setting out the opinions of authors who have undertaken study of and experiments in relation to questions of this kind. But it is important to recognise that the relevant field of study is not the law but psychology. And it was not demonstrated … that the methods used in the studies that have been made, or the results expressed in the articles to which reference was made, are methods or results that have attained such a degree of general acceptance by those skilled in the relevant disciplines as would permit a court to take judicial notice of some general proposition about human understanding or behaviour said to be revealed by the published literature.13 8 Section 144(2). 9 Section 144(3). 10 See Heydon, Cross on Evidence, 2013, 9th Australian edn, Sydney: LexisNexis, [3020]; see also Australian Law Reform Commission, Evidence (Interim), Report No 26 (2005), Volume 2, Appendix C, [268]–[269]. 11 Heydon, Cross on Evidence, 2013, 9th Australian edn, Sydney: LexisNexis, [3015]. 12 Kent v Wotton & Byrne Pty Ltd [2006] TASSC 8; (2006) 15 Tas R 264, [12]. 13 Aytugrul v The Queen [2012] HCA 15; (2012) 247 CLR 170, [20].

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As already noted, where the judge does intend to take judicial notice of a fact, section 144(4) requires the judge 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.

18.1.4 Facts that can be verified by reference to an authoritative document Section 144(1)(b) of the legislation provides that proof is not required about ‘knowledge that is not reasonably open to question’ and that is ‘capable of verification by reference to a document the authority of which cannot reasonably be questioned’. Sub-sections (2), (3) and (4), which were discussed at [18.1] under the heading of ‘The doctrine of judicial notice’, also apply to this category of fact. The main difference between this category and the previous one is that this category may require reference to an authoritative document in order to discover or confirm the fact of which judicial notice is to be taken; on the other hand, where facts form part of common knowledge, there is no need for such an inquiry to be conducted. Examples of facts falling within this category include the time at which the sun rose, or high tide was reached in a particular location on a particular day. Such facts can be proved by reference to publications such as a meteorological almanac or tide chart. Again, the key to this category is that the knowledge must ‘not [be] reasonably open to question’. Indisputable scientific, medical, or historical facts might therefore fall within this category; controversial views clearly would not. In Horman v Bingham [1972] VR 29, for example, a magistrate made factual findings about the position of seeds on cannabis plants, without having received any evidence on the matter. Newton J approved of this approach, commenting that: It is open to a court to take judicial notice of an indisputable botanical fact such as the position of seeds upon a plant, at all events in a case where the fact is well known to all persons having any acquaintance with the plant in question, and may readily be verified by means of standard works of reference …14

Similarly, in Timbury v Coffee [1941] HCA 22; (1941) 66 CLR 277, Dixon J referred to medical texts in order to inform himself of the consequences of alcoholism.

18.1.5 Matters of state Section 145 of the uniform evidence legislation leaves intact the common law rules relating to judicial notice of matters of state. It is in the following terms: This part does not exclude the application of the principles of common law and equity relating to the effect of a certificate given by or on behalf of the Crown with respect to a matter of international affairs.

This category includes issues such as whether a particular country is a sovereign state and whether a particular body purporting to be the government of a state should be recognised as such.15 A certificate from the executive on such a matter is effectively conclusive. The reason for this is to avoid inconsistency on such matters between the executive and judicial arms of government. It was for this reason that the Australian Law Reform Commission declined to interfere with the existing rules, pointing out that because the issues involved concerned ‘the powers of the courts, in

14 Horman v Bingham [1972] VR 29, 34. 15 See Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853.

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particular the High Court, to review legislation and executive actions’, they ‘should be considered in a reference on international law and constitutional law not a reference on evidence law’.16

18.2 FORMAL ADMISSIONS AND AGREED FACTS This part of the chapter is concerned with those facts that need not be proved by evidence, because they have been the subject of either a formal admission by one of the parties, or an agreement as to their existence by all the parties.

18.2.1 Civil proceedings 18.2.1.1 Formal admissions In civil proceedings, a party can make formal admissions about the facts alleged by their opponent. This can be done through the pleadings or by a party’s response to a notice to admit. The provisions that govern the making of such admissions are contained in the rules of the relevant court, rather than in the uniform evidence legislation. Where such an admission has been made, the evidence that might otherwise be used to prove the admitted fact is no longer relevant, because the fact is not in issue. Thus, the making of formal admissions allows the parties to define the areas of genuine dispute between them, and thereby reduce the likely length and cost of the trial. What happens, however, when a party is given leave to withdraw a formal admission previously made, or when a party in one set of proceedings seeks to rely on a formal admission that its opponent made in a different set of proceedings? If a formal admission is evidence, then the admission will, subject to the rules that apply to admissions, be able to be used against the party who made it. But, if a formal admission is not evidence of the fact admitted, then it is difficult to see how its retraction could make it so. Equally, if a formal admission is not evidence, then the fact that a party formally admitted a fact for the purposes of one set of proceedings would be irrelevant to prove that same fact in a different set of proceedings. At common law, pleadings are not a form of evidence, but simply a method of defining the issues between the parties. Thus, in Laws v Australian Broadcasting Tribunal, Mason CJ and Brennan J stated that: The suggestion that pleadings should be treated in the same way as any other form of admissions fails, in our view, to take account of the function and object of pleadings, when they are not required to be verified, in outlining the party’s case and defining the issues to be tried. Especially is this so in the case of pleading defences. A defendant is entitled to put a plaintiff to proof of his or her cause of action and to raise alternative matters of defence which may possibly answer the plaintiff ’s claim, without asserting in an absolute sense the truth or the correctness of the particular matters pleaded.17

One of the justifications for this approach was to avoid ‘unprofitable collateral inquiries into the circumstance in which the assertion was included in the pleading’.18 Such inquiries would be necessary, if it were shown that the pleadings satisfied the requirements for the admissibility of

16 Australian Law Reform Commission, Evidence (Interim), Report No 26 (2005) Volume 1, [977]. 17 Laws v Australian Broadcasting Tribunal [1990] HCA 31, [34]; (1990) 170 CLR 70, 86 (Mason CJ and Brennan J). 18 See ibid., 86, referring to Stohl Aviation v Electrum Pty Ltd [1984] FCA 298; [1984] 5 FCR 187.

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admissions, discussed in Chapter 8: Admissions, in order to determine what weight they should be given. The Australian Law Reform Commission, by contrast, took the view that ‘pleadings should not be placed in a special category—it should be a question of fact in the circumstances whether the particular statement constitutes an admission’.19 Accordingly, the definition of ‘admission’ contained in the uniform evidence legislation was drafted so as not to exclude formal admissions made by the parties to civil proceedings in their pre-trial pleadings. That said, it remains a ‘question of fact in the circumstances whether the particular statement constitutes an admission’, and the courts may still be reluctant to treat a formal admission as an admission for the reasons put forward in Laws. For example, in ACCC v Pratt (No 3), Ryan J held that in order: to be admissible as an admission in the evidentiary sense, the statement in the pleading must, on balance, amount to a positive assertion or acknowledgement of a material fact. A statement in a defence or subsequent pleading that a party ‘admits’ an allegation in a particular paragraph of a statement of claim or subsequent pleading may not always constitute such a positive assertion or acknowledgement. It may, in its context and other relevant circumstances, signify no more than that the party admitting the allegation is content for the litigation in which it is made to be resolved on the basis that the allegation is true or has been proved. That election may be made for a variety of forensic reasons, including a desire to avoid the costs of contesting the allegation in question or a belief that the party making the admission can succeed on some other issue without disputing the particular allegation. A fortiori, a statement in a defence or subsequent pleading that a party ‘does not admit’ an allegation in an earlier pleading will rarely, if ever, constitute an admission in the relevant sense. It indicates no more than that the party on whose behalf the ‘non-admission’ is made intends to put the opposing party to proof at trial of the alleged fact.20

In Pratt, the ACCC brought civil penalty proceedings against a number of parties, including the cardboard box manufacturer Visy (and various related companies) and its Chairman of Directors, Richard Pratt, alleging that they had been involved in a price fixing cartel with another box manufacturer, Amcor, in contravention of section 46 of the Trade Practices Act 1974 (Cth). Those proceedings ultimately settled on the basis of a series of documents agreed between the ACCC and Visy parties (including a statement of agreed facts pursuant to section 191 of the uniform evidence legislation, discussed below). The ACCC subsequently brought criminal proceedings against Pratt, alleging that he had given false evidence on oath during a compulsory examination, when he denied that he had endorsed the cartel at a meeting with his equivalent number at Amcor. To prove the falsity of this evidence, the ACCC sought to rely on statements contained in the aforementioned settlement documents agreed between the ACCC and Pratt in which the meeting was admitted. Ryan J observed, at [77], that: An agreement does not ordinarily constitute a representation by a contracting party. One reason for that is the difficulty in attributing a particular statement in the agreement to one party or the other. It is also notorious that parties to an agreement may elect to conduct their contractual relations and, if necessary, enforce the rights arising from them on a basis which is contrary to fact. That is not to say that no statement in an agreement or contractual document can ever constitute a representation in the sense used in the definition of ‘admission’ in the Evidence Act. A recital to a deed or other written contract may, in its context, be so expressed as to warrant the conclusion that both contracting parties intended it to operate as an assertion of actual fact.

19 Australian Law Reform Commission, Evidence (Interim), Report No 26 (2005) Volume 1, [755]; see also Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005) [10.2], footnote 3. 20 Australian Competition & Consumer Commission v Pratt (No 3) [2009] FCA 407; (2009) 175 FCR 558, [73].

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In the circumstances, Ryan J declined to treat the statements in the agreed documents as admissions by Pratt. In relation to the agreed statement of facts (pursuant to section 191), Ryan J held, at [83], that: the inclusion of a statement in an agreed statement pursuant to s 191 is not a representation of fact for all purposes. It is no more than a representation by each party to the proceeding that he, she or it will not dispute the asserted fact in that proceeding.

18.2.1.2 Agreed facts Section 191 of the uniform evidence legislation makes provision for the parties to ‘agree’ facts. The section is intended to provide parties with a further mechanism for limiting the number of facts that are in dispute at the trial, and thereby containing the costs associated with the litigation. An ‘agreed fact’ is a ‘fact that the parties to a proceeding have agreed is not, for the purposes of the proceeding, to be disputed’.21 Sub-section (3) imposes requirements about proof of the agreement. Where a fact has been agreed, then ‘evidence is not required to prove the existence’ of the fact, and ‘evidence may not be adduced to contradict or qualify’ the fact, unless the court gives leave.22 However, the mere fact that facts have been agreed between the parties does not compel the court to find those facts proved;23 for example, some of the agreed facts might be mutually inconsistent or logically incompatible.24 As discussed above, there is authority that agreement of a fact pursuant to section 191 does not amount to a previous representation as to the existence of that fact, and cannot therefore be used as an ‘admission’.

18.2.2 Criminal proceedings The absence of pre-trial pleadings in criminal proceedings reduces the scope for the parties to limit the issues at trial through the making of formal admissions. To overcome this restriction, the uniform legislation permits defendants to make admissions of fact, although the admission is only effective if the defendant has been advised to do so by his or her lawyer.25 If the evidence that would otherwise have been led to prove the fact was potentially prejudicial, then making the admission provides a means of avoiding having the evidence admitted. Under the uniform evidence legislation, the parties to criminal proceedings may also make agreements as to the facts in the same way that the parties to civil proceedings can.26 When a fact has been admitted or agreed, no further evidence is necessary to establish the fact. Although the statutory provisions do not themselves prohibit a party from leading such evidence if he or she chooses to do so, such evidence might well be considered to be either irrelevant or timewasting, given that the fact—in proof of which the evidence was being adduced—was no longer ‘in issue’.27 If the fact has been agreed, then section 191 does not permit either party to lead evidence to contradict or qualify the fact, without the court’s leave. If the fact has only been admitted, however, then it appears that a party would be permitted to lead evidence to contradict the fact; however, in such a case, the admission would remain admissible as evidence of the fact. 21 Section 191(1). 22 Section 191(2). 23 See, for example, Australian Competition and Consumer Commission v Bridgestone Corp [2010] FCA 584; (2010) 186 FCR 214. 24 See Minister for the Environment, Heritage and the Arts v PGP Developments Pty Ltd [2010] FCA 58; (2010) 183 FCR 10, [35]. 25 See s 184; see also Criminal Procedure Act 2009 (Vic), s 183(3). 26 Section 191, discussed in [18.2.1.2] above. 27 See, for example, R v Smith [1981] 1 NSWLR 193; and Macrae v The Queen (1995) 80 A Crim R 380.

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SUMMARY Normally facts must be proved by means of evidence. Facts may be exempted from the process of proof, however, if: • • •

they are facts of which judicial notice can be taken; or they are facts that have been formally admitted by one of the parties to the proceeding; or they are facts, the existence of which has been formally agreed by the parties to the proceedings.

At both common law, and under the uniform evidence legislation, judicial notice can be taken of the following kinds of facts: • • • •

facts relating to the state of the law in an Australian jurisdiction; facts that form part of common knowledge, either generally or locally, and which are not reasonably open to question; facts that can be verified by reference to an authoritative document; and facts relating to certain matters of state.

In relation to formal admissions: •

• •

in civil proceedings, a party may, through its pleadings, formally admit facts; the making of such an admission relieves the party’s opponent of the need to adduce evidence to prove the admitted fact; in criminal proceedings, the uniform evidence legislation also now allows the defendant formally to admit facts; and in both civil and criminal proceedings, the parties may enter into agreements about the existence of facts; again, the existence of such an agreement relieves a party of the need to adduce evidence to prove the agreed fact.

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WARNINGS AND INFORMATION

19

INTRODUCTION Every legal fact-finding system is shaped by its celebrated miscarriages of justice. In Australia’s most famous modern example, the eventual acquittal of Lindy and Michael Chamberlain long after their 1982 convictions for the murder of their baby Azaria revealed a failure not only of the criminal justice system, but also of forensic science, the High Court, the media, politicians and the general public, all of which were complicit to some degree in their wrongful conviction. Evidence law, despite its primary goal of promoting accurate fact-finding (see Chapter 1: Uniform Evidence Law), can only have an indirect effect on the many systemic errors that contribute towards miscarriages of justice. Even in the courtroom, the rules of evidence (with their binary determination of admissibility or inadmissibility for items of evidence or uses of them) are probably too blunt an instrument to manage the problem. Indeed, excluding evidence altogether may contribute to the chances of error. However, evidence law offers an alternative, more nuanced, but much weaker remedy in jury trials: judicial directions. Part 4.5 sets out the uniform evidence law’s general rules on jury directions. These are only some of the rules governing what judges may or must say to jurors. Others in the uniform evidence legislation include rules regulating: • • • •

warning jurors against drawing inferences from failures to testify or answer investigative questions (see Chapter 2: Witnesses and Chapter 8: Admissions); cautioning jurors about identification evidence (see Chapter 13: Identification); directing jurors on the permitted uses of admitted evidence (see Chapter 10: Tendency and Coincidence and Chapter 16: Discretionary and Mandatory Exclusions); and directions on the standard of proof (see Chapter 17: The Burden and Standard of Proof).

As well, the common law on jury directions continues to operate alongside the uniform evidence law, although some aspects of that law are restricted or replaced by new provisions. The exception is Victoria, where a proposed consolidated statute on jury directions in criminal trials will replace nearly all of the uniform evidence law and common law provisions, representing a major break from—and a likely reform model for—the rest of Australia. This chapter first sets out the directions required by Part 4.5. It then discusses the directions required by the common law, including the constraints on the common law in the uniform evidence law.

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19.1 UNIFORM EVIDENCE LAW DIRECTIONS Part 4.5 sets out two general requirements for directions in jury trials. The first is applicable in all trials and evidence (including civil trials with juries), while the second is limited to criminal proceedings and to directions that favour the defendant. These requirements replace previous, much criticised common law doctrines—corroboration warnings and the so-called Longman direction—with rules that are general, flexible and less technical. They are discussed in turn.

19.1.1 Unreliable kinds of evidence Section 165(2) requires a trial judge, in some circumstances, to tell jurors: • • •

that certain evidence may be unreliable; what matters may cause that evidence to be unreliable; and that caution is needed in determining whether to accept the evidence and the weight to be given to it.

Proposed amendments in Victoria will restrict section 165 to civil proceedings and introduce a similar requirement for criminal proceedings in section 36 of the Jury Directions Act 2013. Section 165(2)’s obligation to direct on unreliability is subject to three conditions. First, a ‘party’ must ‘request’ a direction. This condition differs from the section 116 identification evidence warning1 and the common law approach (see below at [19.2] under the heading ‘Common law directions’), which both require trial judges to scrutinise evidence themselves and make required warnings, whether the parties want them to be made or not. Instead, a section 165 warning is only required if one party asks for it, though the party may be either the one adducing the evidence (who may wish to ensure against a successful appeal down the track) or an opposing party. The meaning of ‘request’ is not defined. In Evans v The Queen [2007] HCA 59; (2007) (2007) 235 CLR 521, part of the evidence against the defendant in a bank robbery case were witnesses’ descriptions of a balaclava and other items worn by the robber and a procedure where the defendant was instructed to wear similar clothing in the courtroom. In the usual discussions before the trial judge charged the jury, the defence raised the need to warn the jury to ‘exercise caution’, without identifying any particular evidence. After the charge, the prosecution suggested that the judge warn the jury about the balaclava, but the defence responded that the trial judge had mentioned ‘apparel’; in any event, no warning was given. Heydon J (with Crennan J agreeing) held that section 165(2) was not triggered because these various exchanges between counsel and the judge failed to specify the ‘kind’ of evidence, the basis for any unreliability and the terms of the requested warning. Kirby J disagreed, arguing that jury directions are too fundamental to be conditioned on ‘technical’ rules, that the prosecution had requested the warning and that defence counsel’s failure was insignificant given the complexity of the trial. Victoria’s proposed equivalent to section 165 in criminal proceedings adopts Heydon J’s approach, requiring requesting counsel to specify ‘the significant matters that may make the evidence unreliable’.2 In practice, there is an exception to the requirement for a request where the accused is unrepresented. In Andelman v The Queen [2013] VSCA 25, the prosecution led evidence that two alleged accomplices in parking meter theft had pled guilty to taking money from the meters and giving it to the defendant. The unrepresented defendant did not request a section 165 direction

1 See Chapter 13: Identification Evidence. 2 Proposed s 36(2)(a), Jury Directions Act 2013 (Vic).

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and the trial judge simply summarised his argument that the accomplices were liars and their testimony was implausible. The Court of Appeal observed: There is no reason to think that the appellant would have understood the potential danger associated with such evidence, or the need to ensure that the jury understood that the fact that the two witnesses had pleaded guilty to theft of the coins did not, of itself, amount to evidence of the appellant’s own guilt.

Accordingly, the trial judge was required to draw section 165, including its potential applicability to the accomplices’ evidence, to the defendant’s attention. Victoria’s Jury Directions Act 2013 goes further, requiring a trial judge to assume that an unrepresented accused had requested every direction that it would have been open for him or her to request.3 The second requirement of section 165 is there must be evidence ‘of a kind that may be unreliable’.4 Early judgments on the provision noted that ‘kind’ and ‘may’ imply that trial judges are only required to make a ‘generalised assessment’ of the potential unreliability of the evidence and that the test involves a ‘low threshold’ (albeit one requiring evidence, rather than just a ‘general argument’).5 However, a contrary view has since emerged that a literal reading of the words would encompass too much—indeed, arguably all—evidence. In R v Stewart [2001] NSWCCA 260; (2001) 52 NSWLR 301, the defendant’s alleged accomplice in a home invasion, who had already pled guilty and been sentenced for his role, was called as a prosecution witness. He initially testified that he committed the crime alone, but, after the prosecution referred to an earlier statement the accomplice had made to the police, he changed his testimony to implicate the accused. Hulme J observed that: incentives to give untruthful evidence not uncommonly exist in other circumstances and unless a degree of discrimination is exercised in categorisation, there will be a temptation to regard the evidence in many of these circumstances as falling within the description ‘evidence of a kind’. Thus it could be argued that evidence of any one with a bias or with an interest in the result of proceedings was ‘evidence of a kind’. The latter circumstance would cover nearly every case and if the words ‘of a kind’ are to have any operation, clearly evidence of the nature of that in this last example does not come within the section.

Instead, he supported a narrower approach set out by Howie J in the same case: The section will apply to the evidence if the trial judge considers that the court has some special knowledge or experience about that kind of evidence which the jury may not possess and which may affect its reliability, or because it is the kind of evidence to which the jury may attribute more weight than it really deserves. The risk of the jury giving too much weight to that kind of evidence may arise because of the nature of the evidence itself or because of the significance which may be attached to it by the jury having regard to the evidence in the context of the trial as a whole. If the evidence does not intrinsically have the potential to mislead the jury or if there is nothing about the trial which would suggest the jury may be deflected or misled in evaluating the evidence, then it is not within the scope of the section and a warning under s 165 is not necessary.

On this approach, the mere facts that a witness has a reason to lie or a bad character or had his or her memory or observation affected by drugs are not sufficient to justify a warning. While it might be argued that these authorities place an unnecessary gloss on section 165(1), a similar result would arguably follow in any case from the ‘good reasons’ exception, discussed below.

3 Section 12, Jury Directions Act 2013 (Vic). 4 Section 165(1). 5 Lane v The Queen [1996] FCA 1478, [5]; R v Flood [1999] NSWCCA 198, [52]. In partial contrast, Victoria’s proposed equivalent to s 165 requires that the request and direction outline the ‘significant matters’ that may affect reliability.

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A similar issue arises in relation to what matters must be specified in the request for a direction and the direction itself. In Stewart, the accused simply asked for a generic accomplice direction and the trial judge directed in general terms about how accomplices have various incentives to falsely implicate others. The Court of Criminal Appeal divided on whether the direction should have drawn attention to the fact that the particular accomplice called by the prosecution had received a sentencing discount because of his assistance in implicating the accused. Howie J held that no direction was required under section 165: Although, the jury may have no general experience or understanding of a situation in which an offender has received a sentencing discount on the basis of giving evidence against another person, they would readily appreciate that a witness may fabricate evidence in order to gain a significant benefit for himself, whatever the nature of that benefit might be. I cannot accept that a jury would have any difficulty at all in fully appreciating the significance and relevance of the fact that a criminal might falsely implicate another in order to spend less time in gaol.

Hulme J agreed with this general statement, but he and Spigelman CJ held that section 165 required that the jury be told that the accomplice’s sentence could be lifted on appeal if he failed to assist during the trial of the accused. Those two judges then split on whether the omission meant that the accused’s trial was unfair, with Hulme J joining Howie J in dismissing the appeal because the accused did not specifically raise the point at trial and the general warning on accomplices sufficed to ensure the trial was fair. Under Victoria’s proposed replacement provision for criminal proceedings, both the request and the direction are limited to ‘significant’ matters that may make the evidence unreliable.6 Section 165(1) identifies a number of particular kinds of evidence that may be unreliable, but—apparently responding to a concern stated by the Australian Law Reform Commission that ‘some category may emerge in the future which should be treated in the same way’7—the list is open-ended. The list in section 165(1) may be summarised as follows: •

•

evidence that is exceptionally admitted under the regular rules of evidence: – hearsay;8 – admissions;9 – oral evidence of written records of investigative questioning of the accused that were not signed or acknowledged in writing by the accused;10 evidence from traditionally suspect categories: – identification evidence;11 and – accomplices (people who may be criminally concerned in the events being tried);12

6 7 8 9 10

Proposed s 36(2)(a), (3)(b)(i), Jury Directions Act 2013 (Vic). Australian Law Reform Commission, Evidence (Interim), Report No 26 (1985) Volume 1, [1017]. Section 165(1)(a) c.f. Part 3.2. Section 165(1)(a) c.f. Part 3.4. Section 165(1)(f) c.f. s 86. The proposed replacement of s 165 in the Jury Directions Act 2013 (Vic) removes the ‘writing’ requirements, extending the category to all oral evidence of investigative questioning of the accused, but excluding questioning that the accused has acknowledged, in writing or otherwise. This category is also removed from the provision for civil proceedings that will remain in the Evidence Act 2008 (Vic). 11 Section 165(1)(b) c.f. s 116. The proposed replacement of s 165 in the Jury Directions Act 2013 (Vic) omits this category, but it is covered by a broader equivalent to s 116. 12 Section 165(1)(d). In Victoria, it is proposed to remove this category from s 165 once it is limited to civil proceedings.

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•

– prison informers;13 and – evidence in deceased estate claims about matters within the deceased’s knowledge;14 and general unreliability: ‘evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like’.15

In Allen v The Queen [2013] VSCA 263, a rape complainant had a mild intellectual disability (an IQ of 55) and a mental illness (schizophrenia). At the trial, she testified that she had previously had hallucinations and that her doctor had told her she had ‘dementia’. However, her psychiatrist testified that, now that she was taking medication, her ‘memory was fine. She can recall things historically’. The Court of Appeal upheld the trial judge’s finding that there was no evidence that her mental illness affected the reliability of her account, particularly on the key dispute of whether she consented to sex with the defendant, and hence no section 165 direction was required. This ruling is consistent with the qualified terms of the final category listed above, but the Court also noted Howie J’s view in Stewart that all the categories are merely ‘guides’ and that no direction is required absent evidence that the particular evidence before the court may be subject to a type of unreliability that may allude the jury. Third, directions are not mandatory ‘if there are good reasons for not’ complying with section 165(2). This requirement—a counterpoint to the absolutist stance of the High Court in relation to common law warnings (see below)—recognises that unnecessary or inapt warnings can be counterproductive. Notably, warnings can add to the length and complexity of the trial judge’s charge to the jury and can lead to an unbalanced or confusing charge. Examples of reasons not to give a requested warning about evidence ‘of a kind that may be unreliable’ include that: • • • • •

the evidence is of little importance; the evidence is undisputed or confirmed by reliable evidence; the particular kind of unreliability does not much affect the value of the particular evidence; the particular kind of unreliability would be obvious to the jury; and the risks could be better addressed by a direction in different terms to section 165(2).

In Allen, the Court of Appeal held that, even if the rape complainant’s evidence were ‘of a kind that may be unreliable’, there were good reasons not to give a section 165 direction: In our view the jury were fully apprised of all relevant material relating to this issue. It was established that the complainant suffered from chronic mental ill-health, its impact upon her reliability was explored in cross-examination, it was established that she was apparently confused when making her complaint to police and the inconsistencies in her accounts were comprehensively explored. In short the issue of the complainant’s reliability was at the heart of the applicant’s defence and completely exposed to the jury. In the absence of a latent danger, known only to seasoned criminal practitioners, a s 165(1)(c) warning had no legitimate work to do.

The equivalent provision in the Jury Directions Act 2013 (Vic) specifies that, in determining whether there are ‘good reasons’, the judge should have regard to the evidence and the parties’ conduct of the case, including whether the direction concerns a matter not raised or relied upon by the accused or contrary to the way the accused has conducted his or her case.16

13 Section 165(1(e). In Victoria, it is proposed to remove this category from s 165 once it is limited to civil proceedings. 14 Section 165(1)(g). The proposed replacement of s 165 in the Jury Directions Act 2013 (Vic) omits this category. 15 Section 165(1)(c). 16 Jury Directions Act 2013 (Vic), s 14(2).

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To counter a perceived prejudice against children’s evidence, section 165(6) prohibits a section 165 direction ‘that the reliability of the child’s evidence may be affected by the age of the child’.17 Section 165A(2) provides for a more limited direction on children, but it can only be given if it is warranted by circumstances ‘other than solely the age of the child’, is limited to the potential unreliability of ‘a particular child’ and drops section 165(2)(a)’s ‘warning’ that the evidence may be unreliable in favour of merely ‘informing’ the jury of that possibility.18 In Martin v The Queen [2013] VSCA 377, the complainant’s evidence-in-chief was pre-recorded when he was six years old. The accused argued that the jury should have been informed of the differences between adult and child evidence and that a 165A warning should have been given as the child was ‘particularly young’ and there was evidence that he was ‘suggestible’, under pressure from his family and subjected to leading questions in his recorded evidence-in-chief. The Court of Appeal held that the first direction was prohibited by section 165(6), that the fact that the child was ‘particularly young’ could never justify a section 165A warning and that the remaining matters were not established on the evidence.

19.1.2 Significant forensic disadvantage Section 165B(2), the second general mandatory direction provision in Part 4.5 states: If the court … is satisfied that the defendant has suffered a significant forensic disadvantage because of the consequences of delay, the court must inform the jury of the nature of that disadvantage and the need to take that disadvantage into account when considering the evidence.

Section 165B provides a remedy both for concerns raised by the High Court about delayed sexual offence prosecutions and for concerns about the High Court’s own jurisprudence. The classic High Court authority is Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79. The defendant was charged with two counts of indecent dealing with his stepdaughter when she was six and ten years old. The complainant’s evidence was that, on both occasions, she woke to find that the defendant was touching her vagina and then pretended to remain asleep. She did not make a complaint to the police until twenty-one years after the second incident. The trial judge held that he was barred from warning the jury about the dangers of the complainant’s evidence because of Western Australia’s statutory restriction on warnings about complainants in sexual cases. However, the High Court held that this provision did not bar ‘a warning … that it was unsafe to convict on the uncorroborated evidence of the complainant, not by reason of her being an alleged victim of a sexual offence, but by reason of the whole of the circumstances of the case’. In particular, the jury could—and indeed should—have been told: that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy.

The majority noted that comments on the impossibility of adequately testing evidence ‘must be fairly balanced’. Indeed, local statutes require trial judges to inform jurors in trials for sexual offences involving a delayed complaint to the effect that there may be ‘good reasons why a victim of an offence such as that alleged may hesitate in making or may refrain from making a complaint of that offence’ and that the delay in complaint does not ‘necessarily’ mean that the complaint 17 A similar limitation is contained in the proposed s 36(3)(b)(ii), Jury Directions Act 2013 (Vic). 18 These limitations, but not the alternative limited direction, are set out in proposed s 37, Jury Directions Act 2013 (Vic).

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is false.19 In Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 42, the High Court held that, where such directions are given, they should in turn be balanced by an instruction that a delay in complaint is relevant to a complainant’s credibility and may be used to assess the accuracy of his or her allegations.20 However, subsequent High Court cases downplayed concerns about balance in favour of ensuring a consistent, strict approach to warnings about these dangers.21 The resulting jurisprudence attracted harsh criticism for burdening jurors in sexual offence trials with an unbalanced list of warnings, effectively resurrecting discarded warnings about the unreliability of sexual offence complaints, removing trial judge discretion and ‘in fact sending a none-too-subtly coded indication to the jury that the dangers of convicting are such that the jury ought to return a verdict of not guilty’.22 Responding to these concerns, section 165B(5) now makes section 165B the exclusive basis for such warnings, effectively repealing the common law on forensic disadvantage due to delay. Section 165B follows section 165 in terms of flexibility, specifically overturning many of the key features of the High Court’s jurisprudence by requiring a request by the defendant (or, in NSW, any party),23 permitting non-compliance ‘if there are good reasons’;24 and barring trial judges from suggesting that either delay or consequential forensic disadvantage made it ‘dangerous to convict’.25 In Greensill v The Queen [2012] VSCA 306, the Victorian Court of Appeal held that a trial judge is still required to give a direction in the absence of a request ‘to avoid a perceptible risk of a miscarriage of justice’, but any direction must use the terms required (and avoid the terms forbidden) by section 165B. Although the Court held that the trial on appeal ‘was a case where it would have been appropriate—if not highly desirable—to have given a forensic disadvantage warning’, it found that the absence of a warning was not a miscarriage of justice because the defence at trial had positively submitted that none was required. The Court nevertheless took account of the disadvantage when ruling that the defendant’s conviction was unsafe. The NSW Court of Criminal Appeal has observed that the mere fact that, during a three-year period between charge and trial, the accused’s alleged accomplices pled guilty and agreed testify against him was not a ‘forensic’ disadvantage.26 Consistently with this, the proposed replacement for section 165B in the Jury Directions Act 2013 (Vic) specifies that the accused’s disadvantage may be either in his or her ‘challenging, adducing or giving evidence’ or in ‘conducting his or her case’. The NSW version of section 165B specifies that the absence of a potential witness (for example, due to death) or the loss of potential evidence establishes significant forensic disadvantage,27 and these appear to be the paradigm examples. In Greensill, the complainants alleged that the defendant had sex with each of them in a tent during a back-yard party thirty years before the trial. The Court of

19 Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 71; Criminal Procedure Act 1986 (NSW), s 294; Sexual Offences (Evidence and Procedure) Act 1983 (NT), s 4(5)(b); Criminal Code (Tas), s 371A; Crimes Act 1958 (Vic), s 61(1)(b) (and see the proposed ss 48(1)(c) , 49 & 50 of the Jury Directions Act 2013 (Vic)). 20 If the Jury Directions Amendment Bill 2014 is enacted, then this rule will be abolished in Victoria: see the proposed s 51 of the Jury Directions Act 2013 (Vic) (and compare similar rule in Evidence Act 1929 (SA), s 34M(2)). 21 See Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161; Doggett v The Queen [2001] HCA 46; (2001) 208 CLR 343. 22 See R v BWT [2002] NSWCCA 60; (2002) 54 NSWLR 241. 23 Section 165B(2). 24 Section 165B(3). 25 Section 165B(4). 26 Matthews v The Queen [2013] NSWCCA 187, [95]. 27 Section 165B(7), Evidence Act 1995 (NSW).

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Appeal held that the accused faced a significant forensic disadvantage because she was unable to obtain medical evidence to assess whether the boys, then eight years old, were capable of erections and ejaculation, and also because her husband (who, she said, was present at the party) had died three years before the trial (and just before the complaints were made). Section 165B specifies that the mere fact of delay is not enough to establish forensic disadvantage.28 Rather, the disadvantage must be ‘because of the consequences of delay’. Delay includes the time ‘between the alleged offence and its being reported’.29 It would also cover delay between reporting and charge and between charge and trial. In Groundstroem v The Queen [2013] NSWCCA 237, the defendant was charged with repeatedly raping his wife over the course of a decade. She complained to the police about six years after the last incident. The Court of Criminal Appeal held that the trial judge was wrong to hold that the defendant suffered no disadvantage from the delayed complaint to the police merely because she had promptly complained to him about each rape. Rather, the trial judge must examine the nature of the particular complaints and delays to determine their consequences. However, the Court held that, consistently with Heydon J’s approach in Evans, the trial judge was only required to consider the specific disadvantages relied on by defence counsel. Those matters—the defendant’s lack of detailed recollection of the incidents and his inability to test whether there was ‘blood on the sheets’—were insufficient to count as a significant forensic disadvantage. Likewise, in P T v The Queen [2011] VSCA 43, the accused’s lost opportunities to establish an alibi for two acts of incest, to speak to his then eight-year-old stepson’s teachers and doctors about whether they had noticed signs of abuse, and to confirm details of when a family had moved house, because of a fifteen-year gap between incidents and complaint, were held to be insufficient given that the complaints were not about specific dates; there was no evidence to suggest that the abuse would leave any signs, and the accused had not specified why delay had prevented him from proving when the family had moved. An especially welcome feature of section 165B is that it is not limited to sexual offence trials. For example, cases of disputed identity often leave defendants wholly dependent on investigations by the police, notably forensic investigations of the crime scene, prior to the suspect being identified or charged. Indeed, the chief flaw of section 165B is that it is limited to forensic disadvantage ‘because of the consequences of delay’, thus excluding disadvantages that are the consequence of investigative misconduct. The Chamberlain case can be seen as an instance of the latter. At the Chamberlains’ trial, the prosecution adduced expert evidence that samples taken from a ‘spray pattern’ in the front passenger section of the car—the alleged crime scene—were blood from a baby (such as the alleged victim’s). However, the police’s forensic service destroyed the samples after the testing was performed. At the trial, the defence criticised the tests used by the police, but were obviously unable to adduce evidence of their own tests of the samples. One reason for their subsequent acquittal was the later discovery that other models of the Chamberlains’ car had a similar spray pattern, which proved to be an anti-rust chemical. If the sample from the Chamberlains’ car had been preserved, then the reliability of the original testing could have been checked directly, rather than inferred from indirect evidence. Such forensic disadvantage may be dealt with through other remedies, such as exclusion30 or the regular unreliability direction.31

28 29 30 31

Section 165B(6)(b). Section 165B(6)(a). See Sections 90 and 138. Section 165, see above. Query whether the ‘kind’ requirement would be satisfied in such cases.

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19.2 COMMON LAW DIRECTIONS In contrast to Part 3 of the uniform evidence law on admissibility, Part 4.5 does not override the entire common law when it comes to directing juries (although it does override parts of that law). Rather, section 165(5) expressly provides that section 165’s mandatory warning on unreliability ‘does not affect any other power of the judge to give a warning to, or to inform, the jury’. At common law, trial judges have a broad power to comment on the reliability of a source of information. In particular, trial judges may: • • • • •

describe a source of evidence as ‘unreliable’; inform the jury of reasons why that source may be (or is) unreliable; warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it; warn the jury that it would be dangerous to convict the defendant on the basis of that evidence; or express a view on the verdict the jury should give.

The authorities are clear that all such comments are permissible even if they are ‘strong’ ones.32 In this regard, Australian trials differ significantly from those in the United States of America, where such comments are typically forbidden. However, the general judicial freedom authorised by the common law and preserved by section  165(5) is constrained in two ways. First, the common law treats some comments as mandatory; section 165(5) continues those requirements despite Part 4.5. Second, some statutes (including provisions of Part 4.5) abrogate the common law and even forbid particular directions; both section 165(5)’s preservation of the common law and the common law’s mandatory rules are subject to those statutory overrides. The result is that trial judges under the uniform evidence law must pay close attention to a number of overlapping and contradictory regimes. The exception is Victoria, where, if the Jury Directions Amendment Bill 2014 is enacted, then both the common law and uniform evidence law on all these matters will be replaced with a single, consolidated statute on directions in criminal trials, the Jury Directions Act 2013 (Vic). This Part will briefly set out the requirements of three different common law doctrines in uniform evidence law jurisdictions: • • •

the law of corroboration; the trial judge’s obligation to ensure a fair trial; and the trial judge’s obligation to summarise the facts.

The discussion is brief, in part because a comprehensive treatment of the common law is beyond the scope of this book, but also because of the tentative status of the common law, especially in light of the attractive alternative of a consolidated jury directions statute.

19.2.1 Corroboration warnings The core of many systems of justice is a requirement for multiple sources of evidence, often consisting of careful metrics of how a case can reach ‘full’ proof. The common law distinguishes itself by shunning such rigidity, but its law of corroboration imposed narrow requirements for plural evidence in some circumstances. Some parts of the law completely barred prosecutions

32 RPS v The Queen [2000] HCA 3, [42]; (2000) 199 CLR 620.

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founded on one witness. The uniform evidence law removes such requirements33 except in relation to perjury-type offences.34 Other, broader parts of the law permitted single witness convictions, but mandated warnings to jurors for particular classes of witness, notably accomplices and sexual assault complainants. Such requirements grew to be despised for their prejudice and (increasing) complexity, leading the Supreme Court of Canada to swap narrow, rigid rules for a broad, flexible one:35 Because of the infinite range of circumstance which will arise in the criminal trial process it is not sensible to attempt to compress into a rule, a formula, or a direction the concept of the need for prudent scrutiny of the testimony of any witness. What may be appropriate, however, in some circumstances, is a clear and sharp warning to attract the attention of the juror to the risks of adopting, without more, the evidence of the witness.

Section 165 takes a similar approach. So, Part 4.5 specifically overturns all of the common law on mandatory corroboration directions.36 Ideally, the law of corroboration should no longer be mentioned in uniform evidence law jurisdictions. Indeed, the Jury Directions Amendment Bill 2014 will, if enacted, amend section 164 of Victoria’s uniform evidence law to bar such warnings and the accompanying common law technicalities in all criminal proceedings except perjury matters.37 Unfortunately, trial judges in the remaining jurisdictions are still permitted to issue corroboration warnings if they want to. In doing so, they become subject to two difficult regimes. First, the High Court has held that any such direction must comply with the previous technical law, which requires the trial judge to identify all evidence that is or is not ‘capable’ of being corroboration (including) negotiating a set of convoluted rules about self- or mutual corroboration).38 However, the NSW Court of Criminal Appeal has held that the technical requirements were not engaged by a trial judge simply repeating a prosecutor’s claim that an accomplice’s testimony was ‘corroborated’ by other matters. The Court described this usage of the term as a non-legal one meaning ‘clearly strengthened or supported’.39 Second, trial judge must be careful to comply with statutory rules enacted to bar some corroboration warnings, notably the uniform evidence law’s restrictions relating to children and local statutory restrictions relating to sexual assault complainants.40 In Question of Law (No 1 of 1993) (1993) 59 SASR 214, the South Australian Court of Criminal Appeal held that the following remarks infringed that jurisdiction’s statutory ban on categorical statements about rape complainants: • •

• 33 34 35 36 37 38 39 40

‘I must warn you to be especially careful in considering the evidence in a case where sexual allegations are made’; ‘Experience has taught the judges that there have been cases where women have manufactured or invented false allegations of rape and sexual attack. It is a very easy allegation to make. It is often very hard to contradict’; and an anecdote illustrating a false rape allegation that was unrelated to the facts alleged in the trial. Section 164(1). Section 164(2). Vetrovec v The Queen, [1982] 1 SCR 811, 831. Section 164(3). Proposed new section 164(4). Conway v The Queen [2002] HCA 2, [62]; (2002) 209 CLR 203. Choi v The Queen [2007] NSWCCA 150, [57]. Section 165A(1); Crimes Act 1914 (Cth), s 15YQ; Evidence (Miscellaneous Provisions) Act 1991 (ACT), Division 4.6; Criminal Procedure Act 1986 (NSW), s 294AA; Sexual Offences (Evidence and Procedure) Act 1983 (NT), s 4(5); Criminal Code (Tas), s 136; Crimes Act 1958 (Vic), s 61 (proposed to be replaced by s 41 of the Jury Directions Act 2013 (Vic)).

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However, the bars on categorical statements do not prevent trial judges from making comments about reliability that are particular to the witness in the trial. Presumably, these onerous requirements are enough to deter any contemporary trial judge from electing to issue a corroboration warning. That being said, there may be occasions when compliance with sections 165, 165A(2), 165B(2) and the common law may necessitate—or at least be facilitated by—reference to whether other evidence provides support for potential unreliable or problematic evidence. Any such obligation flows from the terms of the sections and therefore should not be constrained by the technicalities of the previous law. Rather, modern Australian judges should be guided by Canada’s so-called ‘common sense’ approach: There is no magic in the word corroboration, or indeed in any other comparable expression such as confirmation and support. The idea implied in those words may, however, in an appropriate case, be effectively and efficiently transmitted to the mind of the trier of fact. This may entail some illustration from the evidence of the particular case of the type of evidence, documentary or testimonial, which might be drawn upon by the juror in confirmation of the witness' testimony or some important part thereof. I do not wish to be taken as saying that such illustration must be carried to exhaustion. However, there is, in some circumstances, particularly in lengthy trials, the need for helpful direction on the question of sifting the evidence where guilt or innocence might, and probably will turn on the acceptance or rejection, belief or disbelief, of the evidence of one or more witnesses.41

19.2.2 Fairness warnings Every court has an inherent power to ensure the fairness of proceedings before it. As Gaudron J explained in Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292: According to our legal theory and subject to statutory provisions … the power to prevent injustice in legal proceedings is necessary and, for that reason, there inheres in the courts such powers as are necessary to ensure that justice is done in every case. Thus, every judge in every criminal trial has all powers necessary or expedient to prevent unfairness in the trial. Of course, particular powers serving the same end may be conferred by statute or confirmed by rules of court.42

In the last two decades, the High Court has developed this inherent power into a series of mandatory—and, in at least one circumstance—extremely strict requirements for jury directions, largely overshadowing Part 4.5. This common law doctrine arose as a response to the downfall of corroboration warnings. In Bromley v The Queen [1986] HCA 49; (1986) 161 CLR 315, the Court rejected an argument that the corroboration doctrine should be extended to include witnesses with a mental disability. However, it made an additional observation that was much more significant: If it appears that a witness whose evidence is important has some mental disability which may affect his or her capacity to give reliable evidence, common sense clearly dictates that the jury should be given a warning, appropriate to the circumstances of the case, of the possible danger of basing a conviction on the testimony of that witness unless it is confirmed by other evidence. The warning should be clear and, in a case in which a lay juror might not understand why the evidence of the witness was potentially unreliable, it should be explained to the jury why that is so. There is no particular formula that must be used; the words used must depend on the circumstances of the case.43

41 Vetrovec v the Queen [1982] 1 SCR 811, 831–2. 42 Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, 363–4. 43 Bromley v The Queen [1986] HCA 49; (1986) 161 CLR 315, 319.

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Subsequent judgments developed (and now have become synonymous with) specific requirements for mandatory warnings in relation to the following categories of evidence: • • • • •

delayed complaints in sexual offences;44 unrecorded admissions to investigators;45 identification evidence;46 evidence of prison informers;47 and evidence that the defendant has told lies.48

More importantly, trial judges are obliged to consider making warnings in relation to any category of evidence or other circumstances where such an instruction is (or might be) required as a matter of fairness. There is clearly a considerable overlap between this doctrine and section 165. Indeed, the common law largely overshadows section 165, because these directions: • • •

do not require a request by a party; must be made regardless of the existence of ‘good reasons’ not to give a direction; and are in much stronger terms than section 165(2), requiring not only express reference to the dangers of convicting, but also an emphatic warning in a firm voice (!) and without any ‘balancing’ remarks about the strengths of the prosecution case.49

That being said, the recent emphatic legislative rejection of the Longman direction—and, in particular, the development of that decision by the Gleeson court—places a question mark over the continuing relevance of the remainder of the common law, given that the vast majority of appellate and High Court decisions involved that specific direction. Of that remainder, only one category—the Edwards direction on lies50—is not mimicked in the uniform evidence legislation. The main purpose of Victoria’s proposed consolidated statute on jury directions in criminal trials is to avoid the restrictions and complexities of the common law. If the Jury Directions Amendment Bill 2014 is enacted, the statute will become the exclusive law in that jurisdiction’s criminal courts for jury directions on: • • • • • •

44 45 46 47 48 49 50 51 52 53 54 55

proof beyond reasonable doubt;51 post-offence conduct (including a mild version of the Edwards direction on lies); other misconduct evidence;52 unreliable evidence;53 identification evidence;54 forensic disadvantage;55

Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79. McKinney v The Queen [1991] HCA 6; (1991) 171 CLR 468. Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555. Pollit v The Queen [1992] HCA 35; (1992) 174 CLR 558. Edwards v The Queen [1993] HCA 6; (1993) 178 CLR 193. Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161, [129]–[130]. Edwards v The Queen [1992] HCA 19; (1992) 173 CLR 653. See Chapter 17: The Burden and Standard of Proof. See Chapter 12: Character. See [19.1.1] See Chapter 13: Identification. See [19.1.2].

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• •

credibility of sexual offence complainants;56 failure to give evidence or call witnesses;57

Common rules will apply to most of these directions, generally removing the need to give any direction if: • • •

the direction concerns a matter that the defence has indicated is not in issue;58 counsel does not ask for a direction;59 or there are good reasons not to give the direction;60

However, the trial judge must still give a direction if ‘there are substantial and compelling reasons for doing so’.61 The regime’s success as a replacement for the common law will turn largely on whether the latter condition succeeds in its goal of ensuring that trials remain fair, while at the same time neither making lengthy directions routine in all trials nor exposing significant numbers of convictions to the risk of being overturned on appeal.

19.2.3 Factual directions In some jurisdictions, notably parts of the United States, trial judges are forbidden from giving jury directions beyond ones made mandatory by the law, leaving most factual issues in the hands of the trial advocates. By contrast, Australian judges are not only allowed to comment on the facts, but such comments —the so-called ‘summing up’—are actually a duty, rather than a mere discretion. The most cited authority for that view is a closing remark in Alford v Magee [1952] HCA 3; (1952) 85 CLR 437 where the Court unanimously endorsed an approach attributed to one of Victoria’s most feted judges:62 [I]t may be recalled that the late Sir Leo Cussen insisted always most strongly that it was of little use to explain the law to the jury in general terms and then leave it to them to apply the law to the case before them. He held that the law should be given to the jury not merely with reference to the facts of the particular case but with an explanation of how it applied to the facts of the particular case. He held that the only law which it was necessary for them to know was so much as must guide them to a decision on the  real issue or issues in the case, and that the judge was charged with, and bound to accept, the responsibility (1) of deciding what are the real issues in the particular case, and (2) of telling the jury, in the light of the law, what those issues are.

The decision was actually concerned with the complexities of the substantive law—the defunct common law on contributory negligence—and hence was directed to the need to relate the facts (and disputes about them) to the law. A majority of the High Court has since read Alford v Magee in a broader way as obliging judges to relate the facts to the requirement of proof beyond reasonable doubt. In Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234, the principle was raised in a child sexual offence case where the dispute was not about any of the substantive elements of a crime, but rather about whether

56 57 58 59 60 61

See Chapter 11: Credibility. See Chapter 2: Witnesses. Jury Directions Act 2013 (Vic), s 10. Jury Directions Act 2013 (Vic), ss 11, 13. Jury Directions Act 2013 (Vic), s 14. Jury Directions Act 2013 (Vic), s 15. This test is proposed by the Jury Directions Amendment Bill 2014, replacing the previous test of whether ‘the direction is necessary to avoid a substantial miscarriage of justice’. 62 Alford v Magee [1952] HCA 3; (1952) 85 CLR 437, 466.

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the events alleged by the complainant happened at all. Aspects of the evidence favouring the prosecution included the complainant’s correct description of a mole on the defendant’s penis and her mother’s evidence that she could not locate the complainant and defendant at a time when an alleged assault occurred. Aspects of the evidence favouring the defence included the complainant’s delay in complaining about the incidents and medical evidence casting doubt on her evidence of sexual penetration. The trial told the jury that the issue for them was whether they accepted the complainant’s evidence beyond reasonable doubt. A majority of the Court—Kirby J, Hayne J and Callinan J—held that Alford v Magee required the trial judge to identify the ‘real issues in the particular case’ in considerable depth: Stated in abstract terms the factual issue for the jury was—do you accept the complainant’s evidence as establishing the elements of each offence beyond reasonable doubt? Stated in more concrete terms, the issue was—do you accept the evidence of a young person about particular events of sexual misconduct, occurring in the family setting described, and said to have occurred, unwitnessed, some years ago, when she was aged between eight and 10 and which medical examination can now neither verify nor falsify? (That statement of the issue is not proffered as a formula that could have been adopted in instructing the jury about the real issues in the trial of the appellant. It is too compressed to be used for that purpose, at least without a deal of amplification and explanation. It is put forward as no more than a convenient summary of the information that had to be given to the jury by the trial judge.)

Kirby and Hayne JJ went on to hold that, in light of this obligation, the trial judge erred in not warning the jury about these specific factual matters when instructing them on the requirement of proof beyond reasonable doubt. However, Callinan J held that such a warning was unnecessary in light of factors in the evidence favouring the prosecution case, while Crennan and Kiefel JJ held that no warning was required as none of the issues were matters that were more obvious to judges than jurors. The Jury Directions Act 2013 (Vic) codifies (and, arguably, reduces) the Alford v Magee obligations in that jurisdiction by specifying that trial judges must: • • • •

explain the law (but only so much as is necessary for the jury to determine the issues in the trial);63 identify the evidence necessary to assist the jury to determine the issues in trial (but need not summarise the evidence);64 refer the jury to how the prosecution and defence have put their cases (but need not summarise the parties’ closing addresses);65 direct the jury on what must be proven beyond reasonable doubt (but only with respect to elements and defences).66

The Act provides for the judge to use ‘factual questions’ to explain what the jury must determine and to ‘integrate’ those questions with the above explanations.67 The fourth of the above Victorian provisions (to be introduced if the Jury Directions Amendment Bill 2014 is enacted) appears to rule out the approach of the majority in Tully. For the remaining jurisdictions, Tully is potentially important because its focus on the judge’s general obligations in identifying proof issues may sidestep some legislative constraints on the common law of warnings. 63 64 65 66 67

Jury Directions Act 2013 (Vic), s 17(a). Jury Directions Act 2013 (Vic), ss 17(c), 18. Jury Directions Act 2013 (Vic), s 17(b). Proposed s 19A, Jury Directions Act 2013 (Vic). Jury Directions Act 2013 (Vic), s 19.

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SUMMARY Under the uniform evidence legislation, trial judges must, if a party requests and there are no good reasons not to: • • •

warn jurors of the need for caution when assessing evidence of a kind that may be unreliable; inform jurors of the need for caution when assessing a child’s evidence if it may be unreliable for reasons beyond the child’s age; and inform jurors of any significant forensic disadvantage to criminal defendants due to delay.

As well, trial judges must: • • •

if they choose to comment on lack of corroboration, comply with the technical requirements of the common law on corroboration; give any warning required by the common law to preserve the fairness of the trial (unless a statute prohibits such a warning); and instruct the jury on the real factual issues in the trial.

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PROCEDURAL PROVISIONS

20

INTRODUCTION This final chapter deals very briefly with several other important, but disparate, aspects of the uniform evidence legislation, including: • • • • • •

the voir dire into the admissibility of evidence; advance rulings and findings; waiver of the rules of evidence; the giving of leave, permission or directions; the facilitation of proof; and ancillary provisions.

20.1 THE VOIR DIRE Determining the admissibility of evidence is a matter for the judge. In this role, the judge is a kind of gatekeeper, determining which evidence will be submitted for the consideration of the jury. Often the admissibility of a piece of evidence turns on a question of fact. Examples of such facts include whether evidence was obtained illegally or improperly; whether an admission or the making of an admission was influenced by violent, oppressive, inhuman, or degrading conduct; and, whether a witness is competent to testify. Questions of fact relating to the admissibility of evidence are labelled ‘preliminary questions’ by section 189(1), and are decided by the judge. The decision is made on, what is called, a ‘voir dire’, which is effectively a trial within the trial. On a voir dire, the parties can lead evidence in the usual way, by calling their own witnesses and cross-examining the witnesses of their opponent. Generally, it is the party seeking to adduce the evidence that must satisfy the court of its admissibility. However, sometimes, it is up to the party opposing the admission of evidence to persuade the judge, to exercise a discretion to exclude the evidence. Whether it is the party seeking the admission of evidence, or the party opposing it, the standard of proof of a ‘preliminary question’, on a voir dire, is the civil standard of ‘on the balance of probabilities’.1 This standard of proof applies in voir dires in both civil and criminal proceedings. For example, in a criminal proceeding, where the prosecution seeks to adduce evidence of an admission, the prosecution would have to satisfy the court that the admission, and the making of the admission, were not influenced by violent, oppressive, inhuman, or degrading conduct; but it need only establish this ‘on the balance of probabilities’, not ‘beyond reasonable doubt’. In the

1 Section 142; see also Chapter 17: The Burden and Standard of Proof, [17.2.3].

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hearing of a preliminary question into the admissibility of an admission by a defendant in a criminal proceeding, the issue of the truth of the admission is to be disregarded, unless it is raised by the defendant.2 Voir dires are usually conducted in the absence of the jury, unless the judge orders otherwise.3 The obvious reason for this is that there would be little point in ruling an item of evidence inadmissible, if the jury has already heard it during the voir dire. Section 189(5) provides that, in deciding whether to make such an order, the judge should consider, among other things, whether the evidence to be adduced during the voir dire might be prejudicial to the defendant. The judge is not permitted to make such an order, however, if the voir dire relates to the admissibility of an admission or confession, or illegally or improperly obtained evidence.4 The intention of these provisions is clearly to ensure that the jury should not be permitted to hear any evidence against a defendant, which it might be difficult to put out of their minds, if ruled inadmissible. Admissions, tendency evidence, and evidence excluded only because it was illegally obtained, are all examples of such evidence. On the other hand, if the evidence would not be prejudicial, then there may be no particular reason to exclude the jury. A jury might therefore be permitted to remain in court for the hearing of a voir dire into the competence of a child witness, or the expertise of a proposed expert. Where the jury was not present during the voir dire, then evidence given by a witness on the voir dire is inadmissible within the proceeding itself, unless it is inconsistent with the evidence given by the witness in the proceeding itself, or the witness has since died.5

20.2 ADVANCE RULINGS Section 189 allows the trial judge to make rulings on preliminary questions of fact in the voir dire. However, in TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124, the High Court held that the uniform evidence legislation does not permit a trial judge to make certain rulings in advance, such as how he or she would exercise the discretion under section 135. According to a majority of the Court, a judicial discretion can only be exercised when the occasion for making the relevant decision arises; that is, if and when the discretion is invoked. As Crispin J commented in The Queen v Tr & Vg: The rationale for this approach can be readily understood. Any judicial discretion must obviously be exercised in the context of the other evidence that has already been adduced in the trial and, if exercised in advance, a judge would be dependent upon an assumption that counsel have been able to adequately anticipate the nature and extent of the evidence and/or an assumption that the evidence at trial would prove to be the same as that adduced during the earlier committal proceedings. Neither of these assumptions may prove to be well-founded and the judge who gave an advance ruling could find that, when the occasion for exercising the discretion actually arose, the foreshadowed decision no longer seemed appropriate.6

2 3 4 5 6

Section 189(3). Section 189(4). Section 189(2). Section 189(8). [2004] ACTSC 10; (2004) 180 FLR 424, [6].

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But there are also cases where an inability to give an advance ruling could cause substantial inconvenience, expense, and unfairness: Such an approach may require counsel to prepare for trial and make tactical decisions without knowing whether a substantial body of evidence is likely to be admitted, the Crown may be unable to make any sensible assessment as to the prospects of obtaining a conviction, counsel for the accused may be unable to offer any sensible advice as to the appropriate plea and the opening addresses may have to omit any explanation of the relevance of evidence subsequently admitted. Furthermore, if the trial judge subsequently rules that the evidence should be excluded in the case of one accused but not the other, it may be necessary to then discharge the jury and order that the accused be tried separately. That would involve a substantial waste of time and money, create unnecessary risks of prejudice to both the Crown and the accused and leave jurors with the feeling that their time had been wasted.7

As part of its ten-year review, the ALRC therefore recommended that TKWJ should be overruled, and courts be given a much broader power to make advance rulings.8 Section 192A was thus inserted in the legislation allowing a court (if it considers it appropriate to do so) to make an advance ruling or finding in relation to: (a) the admissibility of use of evidence proposed to be adduced; or (b) the operation of a provision of this Act or another law in relation to evidence proposed to be adduced; or (c) the giving of leave, permission or direction under section 192

Cases where a court has considered it appropriate to make an advance ruling include: •

•

•

A case where the ACCC sought a ruling, well in advance of trial, in relation to the admissibility of some documents over which its opponent claimed privilege. The Court formed the view that ‘a considerable amount of time, effort and money might be saved if the documents were ruled to be admissible now’ (before ruling them to be inadmissible);9 A case where the court ruled in advance on the admissibility of a voluminous body of evidence, on the basis that it would assist the parties to determine which witnesses to call or crossexamine, to instruct experts and to conduct a mediation;10 and A case where the prosecutor waited until the end of the accused’s examination in chief, before seeking leave to cross-examine him under sections 110 and 112 of the legislation, on the basis that the accused had put his character in issue—without, at any point prior to this, alerting the defence to the risk they were running.11

20.3 WAIVER OF THE RULES OF EVIDENCE Under the legislation, the parties to proceedings can, with the permission of the court, choose to opt out of some of the rules of evidence. Thus, section 190(1) provides that ‘[t]he court may, if

7 The Queen v Tr & Vg [2004] ACTSC 10; (2004) 180 FLR 424, [7]. 8 See ALRC 102, [16.108]–[16.109]. 9 Australian Competition and Consumer Commission v Allphones Retail Pty Limited (No 3) [2009] FCA 1075; (2009) 259 ALR 541, [12] (Foster J). 10 Chaina v Presbyterian Church (NSW) Property Trust (No 1) [2012] NSWSC 1476, [11]–[12] (Davies J). 11 See Huges (a Pseudonym) v The Queen [2013] VSCA 338, [52]; an advance ruling was not sought in this case, but Lasry AJA suggested that it would have been appropriate for the prosecutor to have done so.

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the parties consent, by order dispense with the application of any one or more of the [specified provisions] … in relation to particular evidence or generally’. The specified provisions are: Provisions

Application

Coverage

Divisions 3, 4 and 5 of Part 2.1

Dealing respectively with:

Chapter 2: Witnesses

• ‘General rules about giving evidence’ • ‘Examination-in-chief and re-examination’ • ‘Cross-examination’ Part 2.2 and Part 2.3

Dealing respectively with: • ‘Documents’ • ‘Other evidence’

Parts 3.2 to 3.8

Bulk of the provisions used to determine the admissibility of evidence

Chapter 3: Documentary and Real Evidence Chapters 5 to 12

The application of a legislative provision that is not specifically mentioned in section 190(1) cannot be waived.12 In criminal proceedings, the defendant’s consent to the dispensation of rules of evidence is not effective, unless the defendant has been advised to do so by his or her lawyer, and the court is satisfied that the defendant understands the consequences of giving the consent.13 In civil proceedings, the court has the power to dispense with any of the specified provisions, even if both parties do not consent, with section 190(3) providing that: In a civil proceeding, the court may order that any one or more of the provisions mentioned in subsection (1) do not apply in relation to evidence if: (a) the matter to which the evidence relates is not genuinely in dispute; or (b) the application of those provisions would cause or involve unnecessary expense or delay.

In Edmund-Jones Pty Ltd v Australian Women’s Hockey Association Inc, for example, Santow J held that the application of the hearsay rule to certain material contained in an annexure to an affidavit, would cause or involve unnecessary expense or delay, and that the matter was not genuinely in dispute (despite one of the parties claiming that it was), because ‘the point had not been taken by way of dispute earlier than the present hearing before me, in relation to material of a similar character’.14 Once the two pre-conditions to the exercise of the discretion in section 190(3) have been made out, the court must still decide whether or not to exercise it. Section 190(4) provides that: Without limiting the matters that the court may take into account in deciding whether to exercise the power conferred by subsection (3), it is to take into account: (a) (b) (c) (d)

the importance of the evidence in the proceeding; and the nature of the cause of action or defence and the nature of the subject matter of the proceeding; and the probative value of the evidence; and the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.

12 See Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531, [51]. 13 Section 190(2). 14 Edmund-Jones Pty Ltd v Australian Women’s Hockey Association Inc [1999] NSWSC 285, [25]–[27].

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In Williams Advanced Materials, Inc v Target Technology Company LLC [2004] FCA 1405, Bennett J applied the discretion in an action for the revocation of a patent, where the applicant sought to tender the contents of affidavits that did not comply with the rules of evidence, and the respondent had effectively chosen not to defend the application for revocation and had not responded to the affidavits despite having notice of them. In these circumstances, the Court also took the public interest into account in ensuring that only valid patents remain in force, and that the challenge to a patent should not be delayed—and a monopoly continue—because a patentee has chosen not to defend the claim for revocation.

20.4 THE GIVING OF LEAVE, PERMISSION AND DIRECTIONS There are numerous provisions in the legislation that confer power on a court to give leave or permission for an action to be taken or give directions about the conduct of the proceeding. Some of these provisions—like section 190(4) above—specify matters that the court is to take into account, in exercising its power or discretion. Others—such as section 104, which was discussed in Chapter 12: Character—do not. In all cases, however—that is, whether or not the provision itself specifies matters that the court is to take into account—there are a number of matters that the court must always take into account. These matters are specified by section 192, which is stated in the following terms: (1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit. (2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account: (a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing; and (b) the extent to which to do so would be unfair to a party or to a witness; and (c) the importance of the evidence in relation to which the leave, permission or direction is sought; and (d) the nature of the proceeding; and (e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.

One example of the application of this provision—Stanoevski v The Queen [2000] HCA 4; (2001) 202 CLR 115—has already been discussed, in relation to cross-examination about credibilityrelated matters in Chapter 12: Character, at [12.4.2] under the heading ‘Managing trials’. Another is provided by Graham v The Queen [1998] HCA 61; (1998) 195 CLR 606, which concerned the discretion in section 108(3), discussed in Chapter 11: Credibility, to permit the adducing of evidence of a prior consistent statement, for the purposes of re-establishing the credibility of a witness. The High Court held that, in the circumstances of the case, a prior consistent statement made six years after the events in question, would have no effect on the witness’s credibility—and, in particular, the suggestion of fabrication—and would do nothing except add to the length of the hearing.15

15 Graham v The Queen [1998] HCA 61, [9]; (1998) 195 CLR 606 (Gaudron, Gummow and Hayne JJ).

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20.5 THE FACILITATION OF PROOF Part 4.3 contains a number of provisions designed to facilitate proof. It is based on Australian Law Reform Commission recommendations questioning the justification for the common law’s insistence on the need to identify, and authenticate, documentary and real evidence. In relation to the authenticity of written documents, for example, the Australian Law Reform Commission quoted the following critique of the common law rules: One can only speculate as to the amount of testimony elicited annually for the purpose of ‘authenticating’ private writings which are ultimately to be offered in evidence. It can hardly be doubted, however, that the total is substantial. Much of this testimony is of a purely pro forma nature and will never be contested. Moreover, it is frequently of a type so demonstrably unreliable that it has been questioned whether it should be admitted even for ritualistic purposes. The underlying compulsion for the production of such evidence is, of course, supplied by the familiar doctrine that ‘a writing does not speak for itself ’, but must be authenticated by extrinsic evidence. This rule has been the object of frequent and sometimes heated criticism for over a hundred years, yet it still enjoys almost universal recognition.16

As the Australian Law Reform Commission noted, the consequence of the common law’s insistence on proof of such matters was that: Parties are compelled to seek admissions from other parties as to their authorship of the writing by interrogation or notice to admit. Witnesses must be found and called to authenticate writings where there is no real dispute.17

In considering whether such a stringent approach was justified, the Australian Law Reform Commission was only able to identify some very ‘minimal dangers’; yet the law’s blanket approach to protecting against these minimal dangers required: a party to make sure that it is possible to authenticate the evidence whether it is in dispute or not. This can impose significant cost burdens and cause great inconvenience.18

The Australian Law Reform Commission noted that this problem was, in part, dealt with by the provisions that it had proposed with respect to judicial notice and secondary evidence of documents. These provisions were dealt with in, respectively, Chapter 18: Facts That Can Be Proved without Evidence, and Chapter 3: Documentary and Real Evidence. Part 4.3 contains further, more specific provisions designed to facilitate proof of technical matters relating to authenticity and identity, including provisions dealing with: • • • •

evidence produced by processes, machines and other devices;19 attestation of documents;20 seals and signatures;21 documents twenty or more years old, produced from proper custody;22

16 J W Strong, ‘Liberalizing the Authentication of Private Writings’ (1966–7) 52 Cornell LQ 284, citing F E Inbau, ‘Lay Witness Identification of Handwriting’ (1939) 34 Ill L Rev 433, 441 n 13, quoted in Australian Law Reform Commission, Evidence (Interim), Report No 26 (2005) Volume 1, [491]. 17 Australian Law Reform Commission, Evidence (Interim), Report No 26 (2005) Volume 1, [491]. 18 Ibid., [981]. 19 Sections 146 and 147. 20 Section 149. 21 Sections 150 and 151. See also Evidence (Miscellaneous Provisions Act 1958 (Vic) ss 80 and 81. 22 Section 152.

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• • • • •

gazettes and other official documents, including the validity of acts notified in such documents;23 official records, Commonwealth documents, and public documents;24 official statistics;25 the receipt of mail, including letters sent by Commonwealth agencies;26 and the receipt and transmission of electronic communications, and lettergrams, and telegrams.27

The general effect of these provisions is to remove the obligation to lead certain types of formal evidence of authenticity or identity, usually by creating a presumption that something is what it purports to be. So, for example, section 149 provides that it is not necessary to adduce the evidence of an attesting witness, to prove that a document was signed or attested as it purports to have been signed or attested; and section 150 provides that, if the imprint of a specified seal appears on a document, it is presumed, unless the contrary is proved, that the imprint is the imprint of the seal and that the document was duly sealed as it purports to have been sealed.

20.6 ANCILLARY PROVISIONS Part 4.6 contains a series of ‘ancillary’ provisions, which deal with three topics: 1

2

3

23 24 25 26 27 28 29

Division 1, comprising sections 166–9, contains provisions dealing with requests that one party may make to another party, to do one or more of a number of specified things, such as producing or permitting it to examine a document, or to call a witness. Under the provisions, a party may make a reasonable request of this nature for the purpose of determining a question that relates to a previous representation, evidence of a conviction, or the authenticity, identity, or admissibility of a document or thing.28 If the party, of whom the request is made, fails or refuses to comply, then the court may, among other things, order the party to comply with the request.29 Division 2, comprising sections 170–3, contains provisions dealing with facts that are— because of a provision of the Act, such as some of the hearsay exceptions—required to be proved in relation to a document or thing. The Division permits a person who is in a position of responsibility in relation to the document or thing or who is an ‘authorised person’ to give evidence based on knowledge, information and belief (hearsay) in relation to such facts. Division 3, comprising sections 174–5, contains provisions dealing with evidence of foreign law, including allowing evidence of foreign law to be adduced by producing certain official or apparently reliable documents. Section 175 also confirms that questions of foreign law are to be decided by the judge.

Section 153. Sections 155, 155A and 156–8. Section 159. Sections 160 and 163. Sections 161 and 162. Section 167. Section 169.

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SUMMARY The uniform evidence legislation contains some general rules regarding how disputes about obtaining, and using, evidence should be resolved, including: • • • • •

trials within trials (or ‘voir dires’) for deciding factual disputes about inadmissibility, typically in the absence of any jury; provision for the making of advance rulings; a set of mandatory factors to be considered, when a court grants leave for evidence to be adduced or admitted; a power for judges to dispense with some rules of evidence, by consent (with safeguards for unrepresented criminal defendants) or, in civil trials, without consent; and various rules making it easier to prove some facts that are relevant to admissibility.

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402

INDEX Aboriginal traditions hearsay exceptions 6.3.3 opinion evidence 7.2.3 adducing evidence client legal privilege and 15.3.2 documentary and real evidence 3.1.1 means of 5.2.3 real evidence 3.3.1 rehabilitating credibility 11.6.2.1 witnesses see witnesses admissibility admissions see admissions character evidence see character evidence coincidence evidence see tendency and coincidence evidence credibility evidence see credibility evidence discretionary and mandatory exclusions see discretionary and mandatory exclusions facts relevant to 17.2.3 hearsay see hearsay; hearsay exceptions identification evidence see identification evidence judgments and convictions 9.1, 9.2 opinion see tendency and coincidence evidence privileged information see privilege rational fact-finding 1.1.1.1, 1.1.1.3, 1.1.1.4 relevance see relevance tendency evidence see tendency and coincidence evidence voir dire into see voir dire admissions about document contents 3.1.3 adverse inferences 8.1 authority to make 8.1.1 silence, from 8.1.2 covertly recorded 16.5.6 definition 8.1 discretion to exclude 8.2.4 electronic recordings 8.3.3 exclusionary circumstances 8.2

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oppressive influences 8.2.2 potential unreliability 8.2.3 scope of rules 8.2.1 unfair use 8.2.4 exculpatory statements 8.2.3 false 8.2.3 first-hand requirement 8.3.1 formal 18.2 civil proceedings 18.2.1.1 criminal proceedings 18.2.2 hearsay rule exceptions 8.2.4, 8.11, 8.12 improperly or illegally obtained 16.5.6 lies as 8.2.1, 8.3 opinion rule exception 7.2.3, 8.1.1, 8.1.2 oppressive influences 8.2.2 out-of-court statements 8.1.1, 8.1.2 police interviews 8.3 proof of admissibility 8.3.4 protective principle 8.2.4 proving 8.3, 18.2 recording 8.3.3 second-hand hearsay and 5.4.2 from silence 8.1.2 standard of proof 17.2.3 statements during litigation 8.1 unfair use of 8.3.3 unrecorded 8.3.3 unreliability 8.3.3, 19.1.1 ‘verballing’ 8.3.3 video recording 8.3.3 voir dire into admissibility see voir dire voluntariness 8.2.3, 8.2.4 written 8.3.2 see also discretionary and mandatory exclusions; hearsay; hearsay exceptions; jury directions and warnings; opinion advance rulings 20.2 affirmation or oath 2.1.1 definition 2.1.1 sworn evidence 2.1.1 witnesses 2.1.1 agreed facts 18.2 civil proceedings 18.2.1, 18.2.1.2 criminal proceedings 18.2.2

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INDEX 403

ancillary provisions 20.6 effect of successful claim 14.1.3 arrangements see special arrangements for testifying audio recordings of admissions 8.3.3 documentary evidence 3.2.1 relevance and authenticity 3.2.1.1 secondary evidence 3.2.1.2 Browne v Dunn, rule in 2.3.4.7 burden of proof 17.1 evidential burden 17.1.2 legal burden 17.1.1 on a voir dire 17.1.3 see also standard of proof business records 3.1.3 hearsay exception 6.3.1 Canadian law 1.3.3 character evidence co-defendants’ character 12.3.3 coincidence evidence see tendency and coincidence evidence defendant’s character 12.3 good character 12.3.1 lack of good character 12.3.2 defendant’s credibility 12.2 defendant’s character shield 12.2.1 loss of the character shield 12.2.2 managing character evidence 12.4 admissibility 12.4.2 information 12.4.1 minimising prejudice 12.4.1 reasoning 12.4.3 prejudice, risk of 12.4.1, 12.4.3 tendency evidence see tendency and coincidence evidence ‘tit-for-tat’ approach 12.2.2, 12.4.2 charts, as evidence 3.2.3 children best interests paramount 1.1.2.2 corroboration warnings 19.2.1 of defendant compellability 2.1.5 failure to call as witnesses 2.2.2 reliability of evidence of 19.1.1 special arrangements for testifying 2.3.6 availability 2.3.6.1

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variety 2.3.6.2 tests for competence 2.1.2 circumstantial evidence 4.2, 4.2.2 direct evidence compared with 4.2, 4.2.3 identification 13.2.3 inconclusive 4.2.2 relevance 4.2, 4.2.2 circumstantial reasoning 10.1.4 see also tendency and coincidence evidence civil proceedings agreed facts in 18.2.1.2 burden of proof evidential burden 17.1.2 legal burden 17.1.1 failure to call witnesses 2.2.1 first-hand hearsay 6.2.2 formal admissions 18.2.1 standard of proof 17.2.1 class claims 14.6.2.1 clergy, privileges for religious confessions 14.8 client legal privilege acting inconsistently with 15.3.2 disclosing substance of evidence to another 15.3.2.7 expert opinion based on privileged material, relying on 15.3.2.4 inadvertently providing a copy of a document 15.3.2.8 putting in issue relevant fact 15.3.2.6 relying on one in a series of documents 15.3.2.3 relying on part of a document 15.3.2.2 reviving memory with privileged document 15.3.2.5 test of inconsistency 15.3.2.1 waiver of privilege 15.3.2 client 15.2.7 confidential communications and documents 15.2.1 not necessarily privileged 15.2.5 copies of unprivileged documents 15.2.8 dominant purpose test 15.2.5 justification 15.1 lawyer 15.2.7 legal advice privilege 15.2.2 loss of 15.3

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404 INDEX

client legal privilege (cont.) acting inconsistently 15.3.2 deceased party 15.3.1 defence of accused in criminal proceedings 15.3.3 general 15.3.1 joint clients 15.3.4 related communications and documents 15.3.6 making of an objection 15.2.6 meaning of professional legal services 15.2.3 misconduct 15.3.5 privileged purpose litigation 15.2.3 providing legal advice 15.2.2 scope 15.2 unrepresented parties 15.2.4 waiver 15.3.2 acting inconsistently 15.3.2 associated material waiver 15.3.2.3 consent to adducing evidence 15.3.2 imputed 15.3.2.1 issue waiver 15.3.2.6 unintended 15.3.2.2 co-defendants character evidence 12.3.3 credibility attacks 12.2.2 defendant’s failure to testify, comment on 2.2.3.2 coercion, improperly gained evidence from 16.5.2.3 cognitive impairment of witneses competence 2.1.2 special arrangements for testifying 2.3.6.1 coincidence evidence see tendency and coincidence evidence common knowledge, facts forming part of 18.1.3 common law corroboration warnings 19.2.1 directions 19.2 factual directions 19.2.3 fairness warnings 19.2.2 uniform evidence law in context of other laws 1.3.2 common sense, test of relevance and 4.3.1

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compellability of witnesses 2.1, 2.1.3 associated witness 2.1.4 child of defendant 2.1.5 competent witness 2.1.3 defendant in criminal proceedings 2.1.4 defendant’s family 2.1.5 meaning 2.1 reduced capacity 2.1.3 spouse of defendant 2.1.5 sworn and unsworn evidence 2.1.1 competence of witnesses 2.1 children 2.1.2 compellability and 2.1.3 defendant in criminal proceedings 2.1.4 defendant’s family 2.1.5 fact by fact basis 2.1.2 intellectual disability 2.1.2 meaning 2.1 psychiatric disability 2.1.2 tests for competence 2.1.2 complainant, sexual offence see sexual offence complainant complex documents 3.2.5 computer-generated evidence 3.2.4 conduct see character evidence; tendency and coincidence evidence confessions see admissions confidentiality client legal privilege see client legal privilege journalist privilege 14.3 professional confidential relationship privilege 14.2 public interest overriding accurate fact-finding 1.1.2.2 sexual assault counselling privilege 14.4 confusing evidence 16.2.4 conspiracy, provisionally relevant evidence 4.4 contemporaneous mental and physical states 5.3 contemporaneous representations 6.2.5.2 contents claims, class claims and 14.6.2.1 convictions, evidence of criminal convictions 9.1 exceptions to rule 9.2 exclusionary rule 9.1 following death 9.2

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INDEX 405

rebutting false denials 11.5.4.2 saving provisions 9.2 use in later civil proceedings 9.1 corporations, privilege against self-incrimination 14.5.6 corroboration warnings 19.2.1 courts court inspection, and matters of state 14.6.5 in-court inspections, demonstrations and experiments 3.3.4.1.2 leave of the court see leave to adduce evidence proper functioning of 1.1.2.1 relevant information should be available to 1.1.1.2 covertly recorded admissions 16.5.6 credibility evidence admissibility 11.3, 11.3.1, 11.3.4 ancillary evidence 4.2, 11.1 bias or motive for untruthfulness 11.5.4.1 capacity to be aware of matters to which the evidence relates 11.5.4.4 co-defendant 12.2.2 coincidence rule 10.2.3 collateral facts 11.1 credibility, meaning of 11.1 credibility of hearsay 11.7 credibility purpose 11.3.2 cross-examination 11.4, 11.5, 12.2.1 defendant’s credibility 12.2 cross-examination by prosecution 12.2.1 defendant’s character shield 12.2.1 good character 12.3.1 lack of good character 12.3.2 loss of the character shield 12.2.2 definition 11.3.2 denial of substance of evidence 11.5.3 exceptions to rule character evidence 12.3.1, 12.3.2 cross-examination 11.4 rebutting false denials 11.5 rehabilitating credibility 11.6 exceptions to tendency and coincidence rules 10.2.3

21_GAN_UFE_21054_TXT_SI.indd 405

exclusionary rule 11.3.1 scope 11.3.2 expert evidence 11.8 general rule 11.5.1 good character, proving 12.3.1 hearsay purpose 11.3.2 leave of court 11.5.4.6 nature of 11.1 non-credibility purpose 11.3.2 overview of the rules 11.3.1 person who is not witness 11.7 previous false representations 11.5.4.5 prior convictions 11.5.4.2 prior inconsistent statements see prior inconsistent statements procedural pre-conditions 11.5.3 rebutting false denials 11.5 rebutting rebuttal 11.5.5 rehabilitating credibility 11.6, 11.6.2 allegations of fabrication and reconstruction 11.6.2.2 granting of leave 11.6.2.3 prior consistent statements 11.6.2 prior inconsistent statements 11.6.2, 11.6.2.1 re-examination of witness 2.3.5, 11.6.1 relevance 4.1.1, 4.2, 11.2, 11.3.2 to credibility 11.3.3, 11.3.4 to issue 11.3.3, 11.3.4 scope of rule against 11.3.2 sexual offence complainant 11.9 delay in reporting offence 11.9.1 sexual history evidence 11.9.2 substance of evidence put to witness 11.5.3 tendency rule 10.2.3 criminal proceedings agreed facts 18.2.2 Browne v Dunn rule in 2.3.4.7 burden of proof evidential burden 17.1.2 legal burden 17.1.1 character of defendant see character evidence client legal privilege 15.3.3 failure to call witnesses 2.2.2 first-hand hearsay 6.2.3

21/07/14 10:31 AM

406 INDEX

criminal proceedings (cont.) formal admissions 18.2.2 identification in see identification evidence improperly obtained evidence see improperly or illegally obtained evidence loss of privilege and 15.3.3 photographic evidence 3.2.2 prejudicial evidence, exclusion of 16.4 alternatives to exclusion 16.4.2 application of discretion 16.4.1 outweighing probative value 16.4 unfairness 16.4.3 presumption of innocence 17.1.1 pre-trial discovery 14.1.1 self-incrimination, privilege against 14.5.5 standard of proof 17.2.2 cross-examination 2.3.4 Browne v Dunn, rule in 2.3.4.7 contradictions to be put to witness 2.3.4.7 credibility, as to 11.4 credibility rule not applicable 11.4 of defendant 12.2.1 rebutting false denials 11.5 hostile witness 2.3.3.3 improper questions ACT 2.3.4.2 Commonwealth 2.3.4.2 compound question 2.3.4.4 cutting off answer 2.3.4.4 disallowable question 2.3.4.2 NSW 2.3.4.2 NT 2.3.4.3 Tasmania 2.3.4.2 types 2.3.4.4 Victoria 2.3.4.3 vulnerable witness 2.3.4.3 leading questions 2.3.4.1 previous representations of other people 2.3.4.6 prior inconsistent statements 2.3.4.5 sexual offence complainant special arrangements 2.3.6 unrepresented defendant not to cross-examine 2.3.6.2 unfavourable witness 2.3.3.3

21_GAN_UFE_21054_TXT_SI.indd 406

de facto partner of defendant compellability 2.1.5 failure to call as witness 2.2.2 deception, evidence gained by 16.5.2.3 defence examination of witnesses see crossexamination; examination of witnesses first-hand hearsay adduced by the defence 6.2.4 relevant evidence and legal professional privilege 15.3.3 defendant character 12.3 see also character evidence character of co-defendants 12.3.3 proving good character 12.3.1 proving lack of good character 12.3.2 coincidence evidence see tendency and coincidence evidence competence and compellability 2.1.4 credibility 12.2 character shield 12.2.1 loss of the character shield 12.2.2 decision whether to testify 2.1.4 facts known by, failure to reveal 2.2.3.1 failure to contradict witness’s testimony 2.2.3.1 failure to testify 2.2.3, 2.2.3.1 comment by co-defendant 2.2.3.2 comment by judge 2.2.3.2 evidential significance of 2.2.3 prosecutor not to comment 2.2.3.2 right not to testify 2.2.3.2 right to put prosecution to proof 2.2.3.1 family of, as witness compellability 2.1.5 failure to call 2.2.2 right not to testify 2.2.3.2 right to put the prosecution to proof 2.2.3.1 tendency evidence see tendency and coincidence evidence demonstrations 3.3.4.1 in-court 3.3.4.1.2 out-of-court 3.3.4.1.1 denials, rebutting see rebutting false denials diagrams, as evidence 3.2.3

21/07/14 10:31 AM

INDEX 407

direct evidence 4.2.1 circumstantial evidence compared with 4.2.3 directions common law directions 19.2 to jury see jury directions and warnings procedural provisions 20.4 uniform evidence law directions 19.1 disclosure disclosing substance of evidence to another 15.3.2.7 interest in see under matters of state powers to compel 14.1.1 discretion to limit use of evidence 16.3 role of the discretions 5.4.4 discretionary and mandatory exclusions appellate courts reluctant to interfere 16.1 discouraging irrationality 1.1.1.3 exclusionary rule distinguished from 16.1 general discretion 16.2 identification procedures 13.2.3 improperly obtained evidence see improperly or illegally obtained evidence misleading or confusing evidence 16.2.4 nature of the discretion 16.1 prejudicial evidence see prejudicial evidence probative value outweighed by prejudicial effect 16.1, 16.2 balancing exercise 16.2.3 prejudicial effect 16.2.2 probative value 16.2.1 role of the discretions 16.1.1 time-wasting evidence 16.2.5 DNA samples clothing adduced as evidence 3.3.3 DNA databases 16.5.2.1, 16.5.3.2, 16.5.4 doctrine of judicial notice see judicial notice documents 3.1, 3.2 adducing as evidence 3.1.1 admission about contents of 3.1.3 attestation 3.1.4 audio recordings 3.2.1 relevance and authenticity 3.2.1.1 secondary evidence 3.2.1.2

21_GAN_UFE_21054_TXT_SI.indd 407

authentication 3.1.4 audio and video recordings 3.2.1.1 provisional relevance 3.1.4 authoritative documents, verification of facts by reference to 18.1.4 business records 3.1.3 complex documents 3.2.5 computer-generated 3.2.4 copies 3.1.3 definition 3.1.2 execution, proof of 3.1.4 loss of privilege and 15.3.6 maps, models, charts and diagrams 3.2.3 photographs 3.2.2 privilege see privilege provisional relevance 3.1.4 public documents 3.1.3 presumption of authenticity 3.1.4 purposes for adducing 3.1.1 secondary evidence of contents 3.1.3 summaries, permitted opinion 7.2.3 unavailable 3.1.3 unprivileged, copies of 15.2.8 video recordings 3.2.1 voluminous documents 3.2.5 dominant purpose test 15.2.5 electronic recordings, requirement for 8.3.3 English law 1.3.3 evidence adducing see adducing evidence admissibility see admissibility character evidence see character evidence discretionary exclusions see discretionary and mandatory exclusions discretionary limitation of use 5.4.4, 16.3 exclusion of see exclusion of evidence facts that can be proved without 18.1 first-hand evidence, requirement for 8.3.1 identification evidence see identification evidence in interlocutory proceedings 6.3.4 mandatory exclusions see discretionary and mandatory exclusions for a non-hearsay purpose see under hearsay

21/07/14 10:31 AM

408 INDEX

evidence (cont.) opinion as see opinion in proceedings see proceedings rebutting false denials see rebutting false denials relevance of see relevance of reputation and traditions 6.3.3 of settlement negotiations 14.7 sworn see sworn evidence tendency and coincidence see tendency and coincidence evidence unreliable 19.1.1 excluding admissions 8.2.3 unsworn see unsworn evidence waiver of the rules of 20.3 evidence law 1.1 common law 1.3.2 competing goals 1.1.2 human rights law 1.3.4 lack of uniformity 1.2 laws other than uniform laws 1.3 local law 1.3.1 nature of 1.1 other public interests 1.1.2.2 overseas law 1.3.3 procedural law 1.1.1 promoting accurate fact-finding 1.1.1 proper functioning of the courts 1.1.2.1 public interests 1.1.2.2 purpose 1.1.1, 1.1.2 rational fact-finding 1.1.1.1 relevant information available to court 1.1.1.2 uniform see uniform evidence law unreliable information, treating cautiously 1.1.1.4 evidence of matters of state see matters of state evidential burden see burden of proof examination of witnesses 2.3 by closed-circuit television 2.3.6.2 cross-examination see cross-examination examination-in-chief 2.3, 2.3.3 leading questions 2.3.3.1 reviving memory 2.3.3.2 unfavourable witnesses 2.3.3.3 form of questioning 2.3.1 judge, role of 2.3.2 leading questions 2.3.3.1

21_GAN_UFE_21054_TXT_SI.indd 408

cross-examination 2.3.4.1 examination-in-chief 2.3.3.1 ‘live-link’ 2.3.6.2 manner of questioning 2.3.1 narrative form 2.3.1 pre-recorded testimony 2.3.6.2 re-examination 2.3, 2.3.5 reviving memory 2.3.3.2 special arrangements for testifying 2.3.6 availability 2.3.6.1 variety 2.3.6.2 stages 2.3 unfavourable witnesses 2.3.3.3 exclusion of evidence admissions see admissions character evidence see character evidence coincidence evidence see tendency and coincidence evidence credibility evidence see credibility evidence discretion see discretionary and mandatory exclusions hearsay see hearsay improperly gained see improperly or illegally obtained evidence irrelevant evidence see relevance opinion evidence see opinion prejudicial evidence see prejudicial evidence preserving integrity of judicial process 1.1.2.1 privileged information see privilege tendency evidence see tendency and coincidence evidence unreliable 1.1.1.4 exclusionary rule distinguished from discretionary exclusion 16.1 scope of 8.2.1 see also tendency and coincidence evidence experiments 3.3.4.1 in-court 3.3.4.1.2 out-of-court 3.3.4.1.1 expert opinion 7.3 character of co-defendants 12.3.3 communication 7.3.3 as to credibility 11.8

21/07/14 10:31 AM

INDEX 409

foundational facts 7.3.2 managing 7.3.3 specialised knowledge 7.2.2, 7.3.1 subject-matter 7.3.1 eyewitnesses communication of perceptions as permitted opinions 7.2.1 eyewitness identifications see identification evidence fabrication, allegations of 11.6.2.2 fact-finding discouraging irrationality 1.1.1.3 promoting accurate 1.1.1, 1.1.2, 1.1.2.1 public interest overriding 1.1.2.2 rationality 1.1.1.1, 1.3.3 relevant information available to court 1.1.1.2 unreliable information, treating cautiously 1.1.1.4 facts agreed see agreed facts; formal admissions foundational 7.3.3 indisputable 18.1 factual directions, common law directions 19.2.3 failure to call witnesses civil proceedings 2.2 criminal proceedings 2.2.2 defendant’s right not to testify 2.2.3.2 defendant’s right to put the prosecution to proof 2.2.3.1 evidential significance of the defendant’s failure to testify 2.2.3 fairness discretion 16.5.5 prejudicial evidence and unfairness 16.4.3 warnings 19.2.2 false representations previous 11.5.4.5 see also untruthfulness first-hand evidence, requirement for proving admissions 8.3.1 first-hand hearsay 6.2 civil proceedings 6.2.2 contemporaneous representations 6.2.5.2

21_GAN_UFE_21054_TXT_SI.indd 409

criminal proceedings 6.2.3 defence, adduced by 6.2.4 definition 5.4.2 duty, representations under 6.2.5.4 earlier proceedings, representations in 6.2.5.5 evidence of previous representation 6.2.1 exception to hearsay rule 6.2 exception to exception 6.2.3 fresh in memory 6.2.3 general requirements 6.2.1 against interest of maker 6.2.5.3 maker unavailable civil proceedings 6.2.2 criminal proceedings 6.2.5 notice requirement 6.2.1 personal knowledge of facts 6.2.1 prosecution, adduced by 6.2.5 reliable representations 6.2.5.1 representations against interest 6.2.5.3 forensic disadvantage 19.1.2 formal admissions 18.2 civil proceedings 18.2.1.1 criminal proceedings 18.2.2 foundational facts 7.3.2 good character proving 12.3.1 proving lack of 12.3.2 hearsay asserted fact 5.2.1 availability of courtroom processes to test 5.1 character evidence 12.3.1, 12.3.2, 12.3.3 communication of representation 5.2.4 competence to give evidence 6.1.4 credibility of 11.7 definition 5.2.1 exceptions to rule against see hearsay exceptions first-hand see first-hand hearsay implicit representation 5.2.3 intention to assert fact 5.2.7 establishing 5.2.8 form of representation 5.2.8 requirement for 5.2.1, 5.2.7

21/07/14 10:31 AM

410 INDEX

hearsay (cont.) interlocutory proceedings, evidence given during 5.2.3 law’s response 5.1.1 means of adducing evidence 5.2.3 mental and physical states 5.3 contemporaneous representations about 5.3.1 inferences from 5.3.2 inferring 5.3.1 limitations on section 66A 5.3.3 non-hearsay purpose, used for 5.2.6, 5.4 admissions 5.4.2, 8.1.2, 8.2.4 difficulty of distinguishing 5.4.1 discretion to limit use 5.4.3, 5.4.4 examples 5.4.1 hearsay rule not applicable 5.4.1 interaction with other exceptions 5.4.3 second-hand hearsay 5.4.2 person, representation by 5.2.4 previous representation 5.2.3 competence of maker 6.1.4 credibility of maker 11.7 hearsay uses 5.2.5 made by person 5.2.4 non-hearsay uses of 5.2.6 prima facie inadmissible 5.1.1 provisional relevance, rationale 5.1 reliability, difficulty of ascertaining 5.1.1, 5.2 remote hearsay 6.3 representation defined 5.2.2 rule against 5.1, 5.2 exceptions see hearsay exceptions scope of 5.2 ‘previous representation’ 5.2.3 ‘representation’ 5.2.2 second-hand 5.4.2 uncertainty about credibility 5.1 uniform evidence legislation 5.1.2 unreliability 5.1.1, 5.2, 19.1.1 weight, difficulty of ascertaining 5.1.1 witness statements other than testimony 5.2.3 hearsay exceptions Aboriginal traditions, evidence of 6.3.3 age, evidence of 6.3.3

21_GAN_UFE_21054_TXT_SI.indd 410

business records 6.3.1 character of co-defendant 12.3.3 character of defendant good character 12.3.1 lack of good character 12.3.2 in comparable jurisdictions 6.1.2 competence of maker 6.1.4 descriptions of objects and messages 6.3.2 development 6.1.2 dying declarations 6.1.2 effect 6.1.3 electronic communications 6.3.2 first-hand hearsay see first-hand hearsay interlocutory proceedings, evidence in 6.3.4 limitations 6.1.4 non-hearsay purpose 5.4, 5.4.1 discretion to limit use 5.4.3 second-hand hearsay 5.4.2 overview of Part 3.2 6.1.3 rationale 6.1.1 relationships, evidence of 6.3.3 remote hearsay 6.3 reputation, evidence of 6.3.3 role of 6.1 tag or label, contents of 6.3.2 traditions, evidence of 6.3.3 hostile witness cross-examination 2.3.3.3 credibility, as to 11.4 meaning 2.3.3.3 human rights Charter of Human Rights and Responsibilities 2006 (Vic) 1.3.4 Human Rights Act 2004 1.3.4 privilege against self-incrimination as 14.5.1 uniform evidence law and 1.3.4 identification evidence 13.1 circumstantial 13.2.3 codes of practice 13.2 in-court identification 13.1.1 dangers of 13.1.2 definition 13.1.1 discretionary exclusion 13.2.3 dock identification 13.1.1

21/07/14 10:31 AM

INDEX 411

hearsay 13.1.1 identification procedures 13.2 identity, assertions as to 13.1.1 identity parade 13.2.1 mandatory warning 13.1.3 misidentification 13.1.2 negative 13.1.1 non-visual recognition 13.1.1 opinion 13.1.1 photographs 13.2.2 picture identification 13.2.2 recognition 13.1.1 resemblance 13.1.1 unreliability 13.1.3, 19.1.1 video identification parade 13.2.1 visual 13.2.1 warning to jury 13.1.3, 19.1.1 identification parades 13.2.1 illegally obtained evidence see improperly or illegally obtained evidence improper questions 2.3.4.2, 2.3.4.3, 2.3.4.4 improperly or illegally obtained evidence admissions 16.5.6 coercion 16.5.2.3 covertly recorded admissions 16.5.6 criminal investigators 16.5.2 deception 16.5.2.3 discretion to exclude 16.5, 16.5.2 effect of excluding 16.5.4.1 legitimacy of unlawful act 16.5.2.2 rationale for the discretion 16.5.1 relevant factors 16.5.4.3 scope 16.5.3 seriousness of the misconduct 16.5.4.2 surveillance devices 16.5.2.1, 16.5.4 trespass 16.5.2.1 uniform evidence legislation 16.5.3 warrant procedure 16.5.2.2 DNA profile databases 16.5.2.1, 16.5.4 effect of excluding 16.5.4.1 fairness discretion and 16.5.5 illegality 16.5.3, 16.5.3.3 impropriety 16.5.3, 16.5.3.1, 16.5.3.2, 16.5.3.3 investigative misconduct 16.5.2.3 deterrence 16.5.3 lawful investigative acts

21_GAN_UFE_21054_TXT_SI.indd 411

administration of justice powers 16.5.2.2 general law 16.5.2.1 information gathering 16.5.2.1 investigative powers 16.5.2.2 police law 16.5.2.2 mandatory exclusion 16.5.4 obtained as a consequence of impropriety or illegality 16.5.3.2 obtained improperly or illegally 16.5.3.1 operation 16.5.4 public interest exclusion 16.5.4 effect 16.5.4.1 relevant factors 16.5.4.3 standards of propriety 16.5.2.3 impropriety see improperly or illegally obtained evidence inconsistent statements, prior see prior inconsistent statements in-court inspections, demonstrations and experiments 3.3.4.1.2 inferences from admissions 8.1 from a previous representation 8.1.1 from silence 8.1.2 of mental and physical states 5.3.1 from physical and mental states 5.3.2 information and warnings see jury directions and warnings information finding see fact-finding inspections 3.3.4.1 in-court 3.3.4.1.2 out-of-court 3.3.4.1.1 intellectually disabled person competence 2.1.2 special arrangements for testifying 2.3.6 availability of arrangements 2.3.6.1 variety of arrangements 2.3.6.2 intergovernmental relations, national security and 14.6.2.2 interlocutory proceedings, hearsay evidence in 6.3.4 exception to rule 6.3.4 investigative acts non-disclosure of evidence of matters of state and 14.6.2.4 permitted under general law 16.5.2.1 permitted under police law 16.5.2.2

21/07/14 10:31 AM

412 INDEX

investigative acts (cont.) see also improperly or illegally obtained evidence irrational fact-finding see rational fact-finding joint clients 15.3.4 Jones v Dunkel, rule in 2.2.1, 2.2.2 journalist privilege 14.3 judge comment on defendant’s failure to testify 2.2.3.2 directions to jury see jury directions and warnings role in examination of witnesses 2.3.2 judgments exclusion of evidence of 9.1 exceptions 9.2 judicial notice Australian law 18.1.2 authoritative document, facts verifiable by 18.1.4 common knowledge 18.1.3 doctrine of 18.1 effect 18.1.1 knowledge not reasonably open to question 18.1.1 matters of state 18.1.5 jury directions and warnings character evidence 12.4.3 common law 19.2 corroboration warnings 19.2.1 factual directions 19.2.3 fairness warnings 19.2.2 identification evidence 13.1.3, 19.1.1 significant forensic disadvantage 19.1.2 tendency evidence 12.4.3 uniform evidence law directions 19.1 unreliable evidence 1.1.1.4, 19.1.1, 19.2 large, voluminous documents 3.2.5 law of privilege see privilege lawful investigative acts general law 16.5.2.1 police law 16.5.2.2 see also improperly or illegally obtained evidence leading questions cross-examination 2.3.4.1 definition 2.3.3.1 examination-in-chief 2.3.3.1

21_GAN_UFE_21054_TXT_SI.indd 412

leave to adduce evidence prior consistent statements 11.6.2.3 procedural provisions 20.4 rebutting false denials 11.5.4.6 rehabilitating credibility 11.6.2.3 legal advice first privileged purpose 15.2.2 putting in issue a fact to which legal advice is relevant 15.3.2.6 see also client legal privilege lies, as admissions 8.2.1, 8.3 local law 1.3.1 mandatory exclusions see discretionary and mandatory exclusions maps, as evidence 3.2.3 Mareva injunctions 14.1.4, 14.5 matters of state disclosure, interest in 14.6.3 balancing exercise 14.6.4 court inspection 14.6.5 judicial notice 18.1.5 non-disclosure, interest in 14.6.2 class claims and contents claims 14.6.2.1 functioning of government 14.6.2.3 investigation and prosecution 14.6.2.4 national security and intergovernmental relations 14.6.2.2 novel public interest claims 14.6.2.5 privilege of evidence of 14.6 balancing public interests 14.6.1, 14.6.4 class claims 14.6.2.1 contents claims 14.6.2.1 court inspection of documents 14.6.5 functioning of government, prejudice to 14.6.2.3 interest in disclosure 14.6.3, 14.6.4, 14.6.5 interest in non-disclosure 14.6.2 intergovernmental relations, prejudice to 14.6.2.2 investigation, prejudice to 14.6.2.4 national security, prejudice to 14.6.2.2 nature of section 130 14.6.1 police informers 14.6.2.4

21/07/14 10:31 AM

INDEX 413

prosecution, prejudice to 14.6.2.4 public interests, competing 14.6.1, 14.6.4 public interests, novel claims 14.6.2.5 memory, reviving see reviving memory mental states, contemporaneous 5.3 messages, descriptions of 6.3.2 methods, descriptions of 6.3.2 misconduct 15.3.5, 16.5.4.2 misleading or confusing evidence discretion to exclude 16.2.4 discretion to limit use 16.3 models, as evidence 3.2.3 national security, non-disclosure and 14.6.2.2 New Zealand law 1.3.3 non-disclosure, interest in see under matters of state non-hearsay purposes see under hearsay oath or affirmation 2.1.1 objections, making of 15.2.6 objects, descriptions of 6.3.2 opinion about Aboriginal traditions 7.2.3 about criminal convictions 7.2.3 about death 7.2.3 admissions 7.23, 8.11, 8.12 character of co-defendant 12.3.3 character of defendant good character 12.3.1 lack of good character 12.3.2 communication of perceptions 7.3.3 definition 7.1 exceptions to rule 7.2–7.2.3 expert opinion 7.2.2, 7.3 based on privileged material 15.3.2.4 character of co-defendants 12.3.3 communication 7.3.3 credibility, as to 11.8 foundational facts 7.3.2 reliability 7.3 specialised knowledge 7.2.2, 7.3.1 subject-matter 7.3.1 eyewitnesses 7.2.1 inadmissible to prove fact 7.1 opinion rule 7.1 rationale 7.1 restrictions on operation of 7.1

21_GAN_UFE_21054_TXT_SI.indd 413

permitted opinions 7.2 relevant for purpose other than proving fact 7.1 specialised knowledge 7.2.2, 7.3.1 state of mind, as to 7.2.3 summaries of documents 7.2.3 wills, about 7.2.3 oral testimony see witnesses out-of-court demonstrations, experiments and inspections 3.3.4.1.1 overseas law 1.3.3 parent of defendant compellability 2.1.5 failure to call as witness 2.2.2 pattern reasoning 10.1.3 see also tendency and coincidence evidence permission, procedural provisions for giving of 20.4 photographs 3.2.2 physical objects 3.3.3 physical states, contemporaneous 5.3 picture identification 13.2.2 pleading process see agreed facts; formal admissions police informers, privilege of evidence of 14.6.2.4 police questioning improper see improperly or illegally obtained evidence lawful investigative acts 16.5.2.2 powers to compel disclosure 14.1.1 prejudicial evidence coincidence 12.1.2 see also tendency and coincidence evidence criminal proceedings, exclusion in 16.4 alternatives to exclusion 16.4.2 application of the discretion 16.4.1 unfairness 16.4.3 definition 16.2.2 discretion to exclude 16.1, 16.2 balancing exercise 16.2.3 discouraging irrationality 1.1.1.3 general discretion 16.2.2 prejudicial effect outweighing probative value 16.1, 16.2, 16.4

21/07/14 10:31 AM

414 INDEX

prejudicial evidence (cont.) discretion to limit use 16.3 general discretion to limit use of evidence 16.3 lack of testability 16.4.3 prejudicial effect, probative value outweighed by 16.1, 16.2, 16.4 tendency 12.1.2 see also tendency and coincidence evidence unfairness 16.4.3 previous representation admissions see admissions definition 5.2.3 hearsay see hearsay non-hearsay uses 5.2.6 of other people 2.3.4.6 previous false representations 11.5.4.5 prior convictions see convictions, evidence of prior inconsistent statements credibility rule exceptions rebutting false denials 11.5.4.3 reestablishing credibility 11.6.2 cross-examination about 2.3.4.5 non-hearsay uses 5.2.6 rebutting false denials 11.5.4.3 rehabilitating credibility 11.6.2 allegations of fabrication and reconstruction 11.6.2.2 credibility rule exception 11.6.2 leave to adduce evidence 11.6.2.3, 20.4 prior inconsistent statement adduced 11.6.2.1 privilege 14.8 admissibility of privileged information 14.1.2, 14.1.3 choice not to claim 14.1.3 client legal see client legal privilege disclosure requirement 14.1.4 effect of successful claim 14.1.2 journalist privilege 14.3 law of 14.1 matters of state see matters of state powers to compel disclosure 14.1.1 professional confidential relationship privilege 14.2 public interest 14.1.2, 14.1.4, 14.3, 14.4, 14.6

21_GAN_UFE_21054_TXT_SI.indd 414

overriding accurate fact-finding 1.1.2.2 public policy basis 14.1.2 reasons for decisions 14.8 religious confessions 14.8 right to resist disclosing information 14.1.4 self-incrimination, against 14.5 corporations 14.5.6 criminal defendants 14.5.5 determining claim 14.5.3 human right 14.5.1, 14.5.2 justification 14.5.1 overriding 14.5.4 scope 14.5.2 settlement negotiations 14.7 sexual assault counselling privileges 14.4 uniform evidence legislation 14.1.4 probative value coincidence evidence 10.2.2, 12.1.1 see also tendency and coincidence evidence definition 16.2.1 discretion to exclude 16.2.1 prejudicial effect outweighing 16.1, 16.2 balancing exercise 16.2.3 criminal proceedings 16.4, 16.4.1 tendency evidence 10.2.2, 12.1.1 see also tendency and coincidence evidence proceedings advance rulings 20.2 ancillary provisions 14.1.3, 20.6 application of uniform evidence law 1.3.1 civil see civil proceedings criminal see criminal proceedings definition 1.3.1 directions 19.1, 19.2, 20.4 see also jury directions and warnings evidence of decisions in see judgments facilitation of proof see proof formal admissions and agreed facts 18.2 giving of leave, permission and directions 20.4 interlocutory proceedings 6.3.4 procedural provisions 20.1–0.4 voir dire 8.3.4, 17.1.3, 17.2.3, 20.1 waiver of the rules of evidence 20.3

21/07/14 10:31 AM

INDEX 415

warnings and information see jury directions and warnings professional confidential relationship privilege 14.2 protected confidence 14.2 protected confider 14.2 uniform evidence law 14.1.4, 14.2 proof of admissibility 8.3.4 admissions 8.3 burden of see burden of proof facilitation of 20.5 facts provable without evidence agreed facts 18.2 formal admissions 18.2 judicial notice see judicial notice proving admissions 8.3 requirement for electronic recordings 8.3.3 requirement for first-hand evidence 8.3.1 requirements for written admissions 8.3.2 standard of see standard of proof prosecution comment on defendent’s failure to testify 2.2.3.2 defendant’s right to put the prosecution to proof 2.2.3.1 examination of witnesses see crossexamination; examination of witnesses first-hand hearsay adduced by see firsthand hearsay investigation, matters of state and 14.6.2.4 provisional relevance 4.4 psychiatric disability, competence 2.1.2 public interest competing goals of evidence law and 1.1.2.2 in exclusion 16.5.4.3 improperly gained evidence see improperly or illegally obtained evidence novel public interest claims 14.6.2.5 privilege see privilege

21_GAN_UFE_21054_TXT_SI.indd 415

public interest immunity see matters of state questioning manner and form of 2.3.1 by police improper see improperly or illegally obtained evidence lawful investigative acts 16.5.2.2 at trial see cross-examination; examination of witnesses rape shield laws, scope of 10.3.1 see also sexual offence complainant rational fact-finding 1.1.1.1, 1.3.3 discouraging irrationality 1.1.1.3 treating unreliable information cautiously 1.1.1.4 real evidence 3.3 adducing 3.3.1 authentication 3.3.2 direct evidence 4.2.1 general principles 3.3.2 non-documentary 3.3.1 physical objects 3.3.3 provisional relevance 4.4 relevance 3.3.2, 3.3.3 views see views rebutting false denials 11.5 application of exceptions 11.5.4 bias 11.5.4.1 capacity to be aware of matters 11.5.4.4 denial of substance of evidence 11.5.3 exceptions to the rule 11.5.2, 11.5.3 general rule 11.5.1 leave of court 11.5.4.6 motive for being untruthful 11.5.4.1 previous false representations 11.5.4.5 prior convictions 11.5.4.2 prior inconsistent statements 11.5.4.3 procedural pre-conditions 11.5.3 rebutting rebuttal 11.5.5 substance of evidence put to witness 11.5.3 reconstruction, allegations of 11.6.2.2 re-examination of witness 2.3, 2.3.5 rehabilitating credibility 2.3.5, 11.6.1 relevance assumptions or generalisations 4.3.2

21/07/14 10:31 AM

416 INDEX

relevance (cont.) audio and video recordings 3.2.1.1 circumstantial evidence 4.2, 4.2.2, 4.2.3 common sense 4.3.1 connections to facts in issue 4.3.2 credibility evidence 4.1.1, 4.2, 11.2, 11.3.2 relevance to credibility 11.3.3, 11.3.4 relevance to issue 11.3.3, 11.3.4 decisions on 4.3.3 definition 4.1.1 direct evidence 4.2, 4.2.1, 4.2.3 to facts in issue 4.1.2, 4.3.2 fundamental rule of evidence 4.1 inadmissibility of irrelevant evidence 1.1.1.3 irrationality of admitting irrelevant evidence 1.1.1.3, 4.1 legal relevance 4.1.3 logical relevance 4.1.3 probability of existence of fact, effect on 4.1.3 provisional 4.4 provisional relevance 3.1.4 relevant information should be available to court 1.1.1.2 test of 4.3 tribunal of fact and 4.1.1 ways of being relevant 4.2 reliability 19.1.1 children’s evidence 19.1.1 directions to jury see jury directions and warnings expert opinion 7.3 hearsay 5.1.1, 5.2, 6.2.5.1 unreliable evidence see unreliable evidence religious confessions, privileges for 14.8 remote hearsay 6.3 business and other routine records 6.3.1 descriptions of objects and messages 6.3.2 evidence in interlocutory proceedings 6.3.4 evidence of reputation and traditions 6.3.3 representations

21_GAN_UFE_21054_TXT_SI.indd 416

contemporaneous 6.2.5.2 hearsay see hearsay scope of the hearsay rule and 5.2.2 see also previous representation reputation 6.3.3 see also tendency and coincidence evidence reviving memory examination-in-chief 2.3.3.2 using privileged document 15.3.2.5 secondary evidence 3.2.1.2 second-hand hearsay, and admissions 5.4.2 self-incrimination, privilege against 14.5 corporations 14.5.6 criminal defendants 14.5.5 determining the claim 14.5.3 as a human right 14.5.1 justification 14.5.1 overriding 14.5.4 scope 14.5.2 ‘tend to prove’ test 14.5.2 uniform evidence law 14.1.4, 14.5 witness giving evidence at trial 14.5.2 settlement negotiation privilege 14.7 sexual assault counselling privilege 14.4 sexual offence complainant corroboration warnings 19.2.1 credibility 11.9 delay in reporting offence 11.9.1 sexual history evidence 11.9.2 exclusionary rules 10.3.2 permitted reasoning about sexual behaviour/history 10.3.3 rape shield laws 10.3 exclusionary rules 10.3.2 permitted reasoning about sexual behaviour 10.3.3 scope of 10.3.1 sexual assault counselling privilege 14.4 special arrangements for testifying 2.3.6 availability 2.3.6.1 variety 2.3.6.2 tendency evidence 10.3 sexual history evidence 10.3 sexual reputation 10.3.2

21/07/14 10:31 AM

INDEX 417

unrepresented defendant not to cross-examine 2.3.6.2 sexual offence defendants coincidence evidence 12.1.4 cross-examination of complainant 2.3.6.2 tendency evidence 12.1.4 silence, adverse inferences from 8.1.2 similar fact evidence 10.1.2, 12.1.3, 12.1.4, 12.2.2 see also tendency and coincidence evidence special arrangements for testifying 2.3.6 availability of arrangements 2.3.6 variety of arrangements 2.3.6.2 specialised knowledge, opinions substantially based on 7.2.2 spouse of defendant compellability 2.1.5 failure to call as witness 2.2.2 standard of proof 17.2 admissibility of admissions 17.2.3 balance of probabilities 17.2.1 beyond reasonable doubt 17.2.2 civil proceedings 17.2.1 criminal proceedings 17.2.2 facts relevant to admissibility of evidence 17.2.3 voir dire 17.2.3, 20.1 see also burden of proof state matters see matters of state subject-matter, expert opinions 7.3.1 sworn evidence 2.1.1 tendency and coincidence evidence 10.1, 12.1 about the defendant 12.1 exclusionary rule 12.1.3 prejudicial effect 12.1.2 probative value 12.1.1 sexual offence defendants 12.1.4 circumstantial reasoning 10.1.4 coincidence reasoning 10.1, 10.1.2 exceptions 10.2.3 exclusionary rules 10.2, 10.3.2 exceptions 10.2.3 notice 10.2.1 significant probative value 10.2.2

21_GAN_UFE_21054_TXT_SI.indd 417

notice 10.2.1 pattern reasoning 10.1.3 prejudicial effect 12.1.2 probative value 12.1.1 rape complainants exclusionary rules 10.3.2 permitted reasoning about sexual behaviour 10.3.3 scope of the rape shield laws 10.3.1 sexual history 10.3 sexual reputation 10.3.2 rape defendants 10.3, 12.1.4 significant probative value 10.2.2 tendency reasoning 10.1, 10.1.1 testifying see witnesses time-wasting evidence 16.2.5 traditions, evidence of 6.3.3 trials managing character evidence in 12.4.2 pre-trial discovery 14.1.1 questioning at see cross-examination; examination of witnesses sexual offence see sexual offence complainant; sexual offence defendants trials within trials see voir dire see also jury directions and warnings truth see untruthfulness unfairness excluding admissions 8.2.4 exclusion of prejudicial evidence and 16.4.3 unfavourable witnesses 2.3.3.3 uniform evidence law 1.2 accessibility 1.2.3 ancillary provisions 20.6 application 1.2.1 common law and 1.3.2 development 1.2.2 differences between jurisdictions 1.2.2 directions 19.1 significant forensic disadvantage 19.1.2 unreliable kinds of evidence 19.1.1 evidence law and 1.1 human rights law and 1.3.4 justification for the retention of a hearsay rule in 5.1.2

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418 INDEX

uniform evidence law (cont.) local law and 1.3.1 overseas law and 1.3.3 procedural provisions see under proceedings see also evidence law uniform law 1.2 accessibility 1.2.3 application 1.2.1 development 1.2.2 United States law 1.3.3 unreliable evidence 8.2.3 admissions 8.3.3, 19.1.1 exclusionary circumstances 8.2.3 exclusion of evidence 1.1.1.4 hearsay 5.1.1, 5.2, 19.1.1 identification evidence 13.1.3, 19.1.1 jury directions and warnings 1.1.1.4, 19.1.1, 19.2 treating unreliable information cautiously 1.1.1.4 uniform evidence law directions 19.1.1 unrepresented parties 15.2.4 unsworn evidence 2.1.1 untruthfulness credibility see credibility evidence lies, as admissions 8.2.1, 8.3 motive for 11.5.4.1 previous false representations 11.5.4.5 rebutting false denials see rebutting false denials video identification parade 13.2.1 video recordings of admissions 8.3.3 documentary evidence 3.2.1 relevance and authenticity 3.2.1.1 secondary evidence 3.2.1.2 views in-court 3.3.4.1.2 inferences from 3.3.4.1.1 inspections, demonstrations and experiments 3.3.4.1

21_GAN_UFE_21054_TXT_SI.indd 418

out-of-court 3.3.4.1.1 real evidence 3.3.4 visual identification see identification evidence voir dire 20.1 admissibility of admissions 8.3.4 burden of proof 17.1.3 standard of proof 17.2.3, 20.1 voluminous and complex documents 3.2.5 waiver of the rules of evidence 20.3 warnings and information see jury directions and warnings witnesses compellability see compellability of witnesses competence see competence of witnesses credibility see credibility evidence cross-examination see cross-examination examination of see examination of witnesses expert evidence relating to credibility of 11.8 eyewitness perceptions as permitted opinions 7.2.1 failure to call see failure to call witnesses hearsay see hearsay hostile 2.3.3.3, 11.4 identification evidence see identification evidence oath or affirmation 2.1.1 special arrangements for testifying 2.3.6 sworn evidence 2.1.1 unfavourable 2.3.3.3 unsworn evidence 2.1.1 vulnerable improper questions 2.3.4.3 special arrangements for testifying 2.3.6 see also defendant written admissions, requirements for 8.3.2

21/07/14 10:31 AM

GAN_UE2E_21054_CVR

170 mm x 245 mm

CMYK

Spine: 22.9 mm

SECOND EDITION

UNIFORM EVIDENCE

U N I F O R M EVIDENCE

A clear introduction to uniform evidence law in Australia Uniform Evidence sets out the rules of evidence as they apply to Australian courts in an accessible and student-friendly style. The second edition covers all uniform evidence law jurisdictions including the courts of the Commonwealth, New South Wales, Australian Capital Territory, Victoria, Tasmania and most recently the Northern Territory. Practical applications of uniform evidence law are illustrated throughout with case examples, and flowcharts clearly summarise complex legal rules and issues. Contemporary Updated throughout to reflect all amendments to the legislation and the extension of the legislation to the Northern Territory, and includes significant new cases. Engaging Explains, analyses and critiques uniform evidence law in a manner that can be readily understood and easily applied by students and practitioners. Jeremy Gans is a Professor in the Melbourne Law School at the University of Melbourne.

AND

A N D R E W PA L M E R

UNIFORM EVIDENCE

GANS

Andrew Palmer is a Barrister at Law and an Associate Professor in the Melbourne Law School at the University of Melbourne.

JEREMY GANS

PA L M E R

SECOND EDITION

ISBN 978-0-19-552105-4

9 780195 521054

GAN_UFE_21054_CVR_SI.indd 1

cyan magenta yellow black

28/07/14 12:15 PM