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

Table of contents :
Pages 1 to 54
Pages 55 to 108
Pages 109 to 162
Pages 163 to 216
Pages 217 to 270
Pages 271 to 324
Pages 325 to 378
Pages 379 to 432
Pages 433 to 486
Pages 487 to 540
Pages 541 to 594
Pages 595 to 648
Pages 649 to 702
Pages 703 to 756
Pages 757 to 810
Pages 811 to 864
Pages 865 to 918
Pages 919 to 972
Pages 973 to 1026
Pages 1027 to 1080

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Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

UNIFORM EVIDENCE LAW

Commentary and Materials

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

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

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

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SIXTH EDITION

LAWBOOK CO. 2018

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

© 2018 Thomson Reuters (Professional) Australia Limited

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

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MIIKO KUMAR STEPHEN ODGERS ELISABETH PEDEN Sydney June 2018

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

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

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

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

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

Uniform Evidence Law: Commentary and Materials

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

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

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

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

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

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

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

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

Uniform Evidence Law: Commentary and Materials

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

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

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

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

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

Table of Cases

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

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

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

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

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

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

Uniform Evidence Law: Commentary and Materials

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

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

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

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

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

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

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Table of Cases

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

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

Uniform Evidence Law: Commentary and Materials

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

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

U

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

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

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

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

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

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

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Uniform Evidence Law: Commentary and Materials

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

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

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Table of Statutes

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

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

AUSTRALIAN CAPITAL TERRITORY Evidence Act 2011: 1.10

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

Uniform Evidence Law: Commentary and Materials

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

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

Criminal Appeal Rules r 4: 1.110

NORTHERN TERRITORY

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

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

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

TASMANIA Evidence Act 2001: 1.10

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

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

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PART1

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CHAPTER 1

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Introduction [1.10]

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

[1.20]

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

[1.30]

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

[1.40]

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

[1.50]

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

[1.60]

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

[1.70]

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

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

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

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

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

Part 1 — Introduction

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

BACKGROUND TO THE UNIFORM EVIDENCE LEGISLATION

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

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

Introduction

CHAPTER 1

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

RELATIONSHIP BETWEEN THE EVIDENCE ACT AND OTHER LAWS

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

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

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

Part 1 — Introduction

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

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

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

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

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

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

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

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

Introduction

CHAPTER 1

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

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

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

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

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

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

Part 1 — Introduction

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

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

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

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

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

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

PART2

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

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CHAPTER 2

Witnesses [2.10]

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

[2.20]

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

[2.30]

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

[2.70]

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

[2.80] [2.110] [2.130]

[2.140] [2.160] [2.170]

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[2.190]

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

[2.310] [2.330] [2.340]

[2.430]

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

[2.440]

Part 2 — Adducing Evidence

[2.450]

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

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

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

OVERVIEW

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

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

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Witnesses

CHAPTER 2

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

Part 2 — Adducing Evidence

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

is misleading or confusing, or

(b)

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

(c)

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

(d)

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

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

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

Witnesses

CHAPTER 2

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

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

WITNESSES Calling a witness

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

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

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

Part 2 — Adducing Evidence

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



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

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

Witnesses

CHAPTER 2

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

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

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

2.

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

Part 2 — Adducing Evidence

R v Kneebone cont. 3.

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

4.

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

5.

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

6.

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

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

Witnesses

CHAPTER 2

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

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

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

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

Part 2 — Adducing Evidence

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

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

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

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

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

(b)

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

(c)

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

(d)

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

Part 2 — Adducing Evidence

R v Kneebone cont.

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

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

(f)

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

(g)

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

(h)

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

(i)

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

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

Witnesses

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

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



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

Part 2 — Adducing Evidence

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

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

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

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

Part 2 — Adducing Evidence

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

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

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

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

Part 2 — Adducing Evidence

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

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

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

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

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

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

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

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

Part 2 — Adducing Evidence

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

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

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

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

Part 2 — Adducing Evidence

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

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

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

Part 2 — Adducing Evidence

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

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

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

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

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

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

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Part 2 — Adducing Evidence

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

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Witnesses

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

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

Part 2 — Adducing Evidence

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

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

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

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

Part 2 — Adducing Evidence

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

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

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

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

Part 2 — Adducing Evidence

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

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

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

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

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

Part 2 — Adducing Evidence

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

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

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

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

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

(b)

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

(c)

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

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

Part 2 — Adducing Evidence

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

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

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

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

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

(2)

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

(3)

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

(4)

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

(5)

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

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CHAPTER 2

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

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

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

(7)

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

(8)

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

(9)

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

(10)

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

(11)

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

(12)

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

(13)

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

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

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

Part 2 — Adducing Evidence

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

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

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

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

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

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

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

2.

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

Part 2 — Adducing Evidence

R v Esposito cont.

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

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

4.

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

5.

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

6.

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

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

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

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



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

Part 2 — Adducing Evidence

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

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



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

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

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

(2)

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

(3)

what is your occupation,

(4)

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

(5)

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

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

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

Part 2 — Adducing Evidence

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

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

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

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

Part 2 — Adducing Evidence

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

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

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

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



Part 2 — Adducing Evidence

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

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

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

2.

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

3.

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

4.

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

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

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

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

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

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

(b)

the officer signed it when it was made; and

Part 2 — Adducing Evidence

Dodds v The Queen cont. (c)

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

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

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

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

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

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

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

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

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

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

Part 2 — Adducing Evidence

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



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

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

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

Part 2 — Adducing Evidence

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

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

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

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

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Part 2 — Adducing Evidence

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

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

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

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

Part 2 — Adducing Evidence

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

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

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

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

Part 2 — Adducing Evidence

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

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

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

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

Part 2 — Adducing Evidence

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

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

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

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

Part 2 — Adducing Evidence

R v Le cont.

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

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R v Le cont.

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

Part 2 — Adducing Evidence

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

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

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

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

Libke v The Queen

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

Part 2 — Adducing Evidence

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

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

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

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

Part 2 — Adducing Evidence

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

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

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

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

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

Part 2 — Adducing Evidence

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

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

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

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

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

Part 2 — Adducing Evidence

Browne v Dunn cont.

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

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

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

Part 2 — Adducing Evidence

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

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

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

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

Part 2 — Adducing Evidence

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

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

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

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

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

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Part 2 — Adducing Evidence

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

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

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

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

Part 2 — Adducing Evidence

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

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

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

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

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Part 2 — Adducing Evidence

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

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

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

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

Part 2 — Adducing Evidence

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

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

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

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

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

Part 2 — Adducing Evidence

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

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

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



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

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

Part 2 — Adducing Evidence

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

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

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

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

Part 2 — Adducing Evidence

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

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

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

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

Part 2 — Adducing Evidence

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

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

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

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

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Part 2 — Adducing Evidence

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

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

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

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

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Part 2 — Adducing Evidence

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

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

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

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

Part 2 — Adducing Evidence

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

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

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

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

Part 2 — Adducing Evidence

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

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

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

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

Part 2 — Adducing Evidence

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

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

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

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

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

Part 2 — Adducing Evidence

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

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

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



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

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

Part 2 — Adducing Evidence

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

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

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



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

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

Part 2 — Adducing Evidence

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

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

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



[2.480]

Questions

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

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1.

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

1.

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

2.

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

3.

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

4.

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

5.

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

1.

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

2.

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

3.

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

Part 2 — Adducing Evidence

4.

What is the effect of s 12?

5.

When can a witness give unsworn evidence?

6.

How does a witness give sworn evidence?

7.

Does sworn testimony need to be on oath?

8.

What can unsworn evidence be used for?

9.

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

Crim/civil

Effect

Test

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

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17(2)

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

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

Witnesses

Section

Crim/civil

Effect

CHAPTER 2

Test

15 16 17(3) 18 19

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

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

Part 2 — Adducing Evidence

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

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

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

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

What does s 32 provide?

2.

When would a witness need to revive memory?

3.

How could memory be revived?

4.

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

5.

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

Witnesses

CHAPTER 2

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

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

2.

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

3.

What are the limits on the examination of witnesses?

4.

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

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“Unfavourable” witnesses 1.

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

2.

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

3.

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

4.

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

5.

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

6.

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

7.

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

Part 2 — Adducing Evidence

Cross-examination 1.

What does s 40 provide?

2.

What is an improper question in cross-examination?

3.

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

4.

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

5.

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

6.

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

7.

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

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Browne v Dunn 1.

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

2.

Why does the rule exist?

3.

What are the remedies for a breach of the rule?

4.

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

5.

How was the rule breached in R v Birks?

6.

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

7.

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

8.

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

9.

What does s 46 provide?

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

Witnesses

CHAPTER 2

Interpreters 1.

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

1.

How can a witness be re-examined?

2.

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

3.

Can leading questions be asked in re-examination?

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Reopening the case 1.

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

2.

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

3.

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

4.

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

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CHAPTER 3

Documents [3.10]

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

[3.20]

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

[3.30]

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

[3.40]

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

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

[3.100]

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

[3.110]

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

[3.130]

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

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

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

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

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

Part 2 — Adducing Evidence

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

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

means of proving the contents of documents are abolished.

PROOF OF THE CONTENTS OF DOCUMENTS

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

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

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

Documents

CHAPTER 3

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

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

Part 2 — Adducing Evidence

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

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



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

Documents

CHAPTER 3

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

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

Part 2 — Adducing Evidence

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

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

Documents

CHAPTER 3

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

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

Part 2 — Adducing Evidence

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

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



Documents

CHAPTER 3

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

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



Part 2 — Adducing Evidence

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

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

Documents

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

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



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

Part 2 — Adducing Evidence

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

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

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

2.

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

3.

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

4.

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

5.

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

6.

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

7.

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

8.

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

9.

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

10.

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

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

Documents

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

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

11.

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

12.

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

13.

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

14.

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

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

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

(b)

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

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

Part 2 — Adducing Evidence

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

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

Documents

CHAPTER 3

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

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

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

(b)

it competed with at least Polar Air and Singapore Airlines;

(c)

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

(d)

that person heard what the cargo managers said;

(e)

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

(f)

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

(g)

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

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



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

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

[2012] NSWSC 568.

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

Part 2 — Adducing Evidence

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

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

Documents

CHAPTER 3

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

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

Part 2 — Adducing Evidence

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

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



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

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

Questions

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

What does s 51 do? Why?

2.

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

3.

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

4.

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

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CHAPTER 3

5.

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

6.

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

7.

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

8.

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

9.

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

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

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

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

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

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CHAPTER 4

Real Evidence [4.10]

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

[4.20]

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

[4.30]

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

[4.90]

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

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

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

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

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

Part 2 — Adducing Evidence

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

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

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

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

Real Evidence CHAPTER 4

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

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

Part 2 — Adducing Evidence

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



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

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

Real Evidence CHAPTER 4

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

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

Part 2 — Adducing Evidence

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

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

Real Evidence CHAPTER 4

Evans v The Queen cont.

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

Part 2 — Adducing Evidence

Evans v The Queen cont.

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

Real Evidence CHAPTER 4

Evans v The Queen cont.

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



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

Part 2 — Adducing Evidence

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

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

Real Evidence CHAPTER 4

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

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

Part 2 — Adducing Evidence

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

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

Real Evidence CHAPTER 4

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

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

Part 2 — Adducing Evidence

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

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

Real Evidence CHAPTER 4

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

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



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

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

Part 2 — Adducing Evidence

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

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

Real Evidence CHAPTER 4

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

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

Part 2 — Adducing Evidence

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

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



Real Evidence CHAPTER 4

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

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

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[4.100]

Questions

1.

What is “real evidence”?

2.

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

3.

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

4.

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

5.

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

6.

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

7.

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

8.

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

9.

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

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

Part 2 — Adducing Evidence

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

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

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

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

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

PART3

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

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CHAPTER 5

Relevance [5.10]

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

[5.20]

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

[5.30]

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

[5.70]

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

INTRODUCTION

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

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

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

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

Part 3 — Admissibility of Evidence

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

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

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

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

Relevance CHAPTER 5

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

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

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

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

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

Part 3 — Admissibility of Evidence

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

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

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

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

Part 3 — Admissibility of Evidence

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

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

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

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

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

Part 3 — Admissibility of Evidence

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

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

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

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

Part 3 — Admissibility of Evidence

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

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

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

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

Part 3 — Admissibility of Evidence

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

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

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

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

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

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

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

Part 3 — Admissibility of Evidence

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

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

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

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

Part 3 — Admissibility of Evidence

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

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

Relevance CHAPTER 5

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

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

Part 3 — Admissibility of Evidence

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

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



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

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

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

Questions

Relevance CHAPTER 5

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

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

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CHAPTER 6

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Discretions to Exclude or Limit Use of Evidence [6.10]

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

[6.20]

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

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

[6.70]

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

[6.110]

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

[6.150]

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

[6.160]

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

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

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

Part 3 — Admissibility of Evidence

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

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

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

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

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

Discretions to Exclude or Limit Use of Evidence

CHAPTER 6

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

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

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

Part 3 — Admissibility of Evidence

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

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

Discretions to Exclude or Limit Use of Evidence

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

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

Part 3 — Admissibility of Evidence

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

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

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

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

Part 3 — Admissibility of Evidence

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

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

Discretions to Exclude or Limit Use of Evidence

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

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

Part 3 — Admissibility of Evidence

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

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

Discretions to Exclude or Limit Use of Evidence

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

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

Part 3 — Admissibility of Evidence

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

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

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

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

Part 3 — Admissibility of Evidence

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

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

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

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

Part 3 — Admissibility of Evidence

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

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

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

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

Part 3 — Admissibility of Evidence

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

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

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

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

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

Part 3 — Admissibility of Evidence

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

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

Discretions to Exclude or Limit Use of Evidence

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

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

Part 3 — Admissibility of Evidence

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

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

Discretions to Exclude or Limit Use of Evidence

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R v Sood cont.

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

Part 3 — Admissibility of Evidence

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

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

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

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

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

Discretions to Exclude or Limit Use of Evidence

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

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

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

Part 3 — Admissibility of Evidence

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

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

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Discretions to Exclude or Limit Use of Evidence

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

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

Part 3 — Admissibility of Evidence

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

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



Discretions to Exclude or Limit Use of Evidence

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

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

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

(b)

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

(c)

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

Part 3 — Admissibility of Evidence

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

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

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

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

Discretions to Exclude or Limit Use of Evidence

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

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

Part 3 — Admissibility of Evidence

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

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

Discretions to Exclude or Limit Use of Evidence

CHAPTER 6

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

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



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

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

Part 3 — Admissibility of Evidence

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

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

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

Discretions to Exclude or Limit Use of Evidence

CHAPTER 6

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

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

Part 3 — Admissibility of Evidence

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

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

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

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

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Part 3 — Admissibility of Evidence

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

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

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



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

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

Part 3 — Admissibility of Evidence

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

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

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

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

Part 3 — Admissibility of Evidence

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

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… (Appeal dismissed.)



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

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

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

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

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

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

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

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

Part 3 — Admissibility of Evidence

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

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

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

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

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

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

Part 3 — Admissibility of Evidence

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

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

Discretions to Exclude or Limit Use of Evidence

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

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

Part 3 — Admissibility of Evidence

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

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

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

(b)

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

(c)

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

(d)

In the case of an offence which does not involve a criminal intent, the policy against tempting people to commit crimes which otherwise might not have occurred is of limited significance.

(e)

Because the victim of a contravention of the law, namely the young person who successfully purchases tobacco products, is unlikely to complain about a contravention, the conduct constitutes a viable and practical means of achieving a better level of compliance than would be likely if law enforcement were dependent on receipt of complaints.

(f)

A properly run compliance program, backed by the possibility of prosecution where contravention occurs, is itself a reasonable and proper means of promoting compliance with the law.

[47] In noting at (a) that there was an absence of pressure or persuasion in the present case, it is not intended to suggest that the presence of pressure or persuasion would necessarily lead to a different result. These are matters of degree, and may need to be tested in accordance with the factor noted at (c), namely the likely behaviour of members of the public. If young people who are anxious to obtain tobacco products may be expected to apply some level of pressure or persuasion and seek to importune retailers, then the law will require retailers to resist such importuning and their willingness and ability to do so may also reasonably be tested. [48] The list of considerations does not contain explicit reference to fact that the purpose of the law is to promote public health. That was a factor emphasised by the Crown Advocate, who appeared for the prosecutor in the present case, and is referred to in Rice v Tricouris. It is no doubt a correct and pithy encapsulation of the purpose of the law in question, but it does not distinguish this law from many similar regulatory provisions, nor from the underlying purpose of outlawing some criminal activity, such as the prohibition on the importation and supply of certain drugs. The legislative purpose, and indeed the nature of the offence created, are undoubtedly relevant to the kinds of law enforcement conduct which would be seen as reasonable and appropriate with respect to that law. However, even where that test may be satisfied, other factors, such as the intrusive nature of compliance testing in particular circumstances, may suggest that statutory permission is required, as with random breath testing of drivers: see, for example, the Road Transport (Safety and Traffic Management) Act 1999 (NSW), s 13. Albeit in a context in which law enforcement authorities were involved in unlawful (and not merely improper) conduct, Brennan J noted in Ridgeway (at 53-54): As a technique of law enforcement, the so-called “controlled” importation of prohibited imports may be an acceptable technique for the detection and breaking up of drug rings but, if that be so, the law enforcement agencies must address their concerns to the Parliament …

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Robinson v Woolworths cont. If law enforcement agencies apply for an amendment of the laws to permit the employment of detection methods such as those used in this case, it will be for the Parliament to consider whether controls should be legislatively prescribed. Legislative provision in relation to “controlled operations” now exists in several jurisdictions: see P Hall, Investigating Corruption and Misconduct in Public Office (2004) at [10.65]. Accordingly, the purpose of the legislation, broadly stated and taken in isolation, is unlikely to be a critical factor in this analysis. [49] Where a compliance program does not involve unlawful conduct on the part of the law enforcement agency and does not involve any intrusion on the human rights and freedoms of the person being tested, there is less likely to be concern as to the propriety of compliance testing procedures, so long as they satisfy the elements identified in par [46]. The purpose of the particular law to be enforced will have been assessed by the Parliament: caution should be applied in seeking to confer greater moral rectitude on some statutory purposes, as compared with others. Conclusions [50] For the reasons set out earlier, I would answer the first question: (1)

The conduct of the informant was not capable of constituting “an impropriety” for the purposes of s 138(1)(b), nor did it have the effect that evidence of the offence was improperly obtained, for the purposes of s 138(1)(a) of the Evidence Act 1995 (NSW).



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DPP v Marijancevic; DPP v Preece; DPP v Preece [6.180] DPP v Marijancevic; DPP v Preece; DPP v Preece (2011) 33 VR 440; [2011] VSCA 355 WARREN CJ, BUCHANAN and REDLICH JJA [1] The respondents are charged with various offences related to drug manufacture and trafficking. Much of the evidence comprising the prosecution case was obtained by the execution of warrants issued under the Drugs Poisons and Controlled Substances Act 1981 (the Act). [2] During pre-trial argument it emerged that the deponent to certain affidavits in support of the warrants had not sworn as to the truth and accuracy of their content but rather, had merely signed them in the presence of an inspector authorised to take affidavits. The trial judge, in a ruling that is not in issue, found that the affidavits relied on to obtain the warrants had not been sworn, in breach of s 81 of the Act, and that the magistrate who granted the warrant was not aware of the deficiencies. The trial judge accordingly found the search warrants were invalid and that the entries, purportedly pursuant to the warrants, were unlawful and constituted a trespass. [3] The respondents objected to the admissibility of the evidence derived from the warrants. The prosecutor applied to have the evidence admitted pursuant to s 138 of the Evidence Act 2008 (the Evidence Act). The trial judge refused that application on 18 October 2011, ruling all of the evidence gathered pursuant to the warrants inadmissible. Further evidence gathered pursuant to other warrants was ruled inadmissible under a second ruling by his Honour made on 25 October 2011. The reasons for excluding the evidence under each ruling were essentially the same. Although the ruling of 25 October was also the subject of appeal, it received little discrete attention in either the written or oral argument on appeal. The appeal was conducted on the basis that the arguments advanced by each party applied to all of the evidence gathered under all of the warrants the subjects of both rulings. Accordingly we have not dealt separately in our reasons with the individual warrants. [4] The Director of Public Prosecutions now seeks leave to appeal against both rulings by way of an interlocutory appeal, the trial judge having granted a certificate pursuant to s 295(3) of the Criminal Procedure Act 2009.

Part 3 — Admissibility of Evidence

DPP v Marijancevic; DPP v Preece; DPP v Preece cont. [5] The question raised in this interlocutory appeal is whether the decision to exclude the evidence on the ground that public policy relating to the administration of criminal justice outweighed the public interest of bringing conviction to the wrongdoer was one that was reasonably open. … [12] In his statement of contentions the Director provided particulars of specific errors that it was submitted resulted in the trial judge erring in refusing to admit the evidence pursuant to s 138 of the Evidence Act. The specific errors identified were: (a)

that the gravity of the impropriety or contravention was of the highest order.

(b)

that the conduct of the police officers who signed the affidavit was deliberate.

(c)

that the police officers’ conduct was at the very least reckless behaviour of the highest order.

[13] In DPP v MD an interlocutory appeal, in which the Crown sought leave to appeal a pre-trial ruling that evidence be excluded under s 138(1) of the Evidence Act 2008, Maxwell P, Nettle and Harper JJA, concluded that the exclusion of an admission pursuant to s 138 of the Evidence Act 2008 involves an exercise of discretion which, on appeal, attracts the operation of the principles in House v The King (1936) 55 CLR 499. It was accepted by all parties on the present interlocutory appeal that we should proceed on that basis.

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[14] The Director sought to justify appellate intervention on the sole ground that an error in the exercise of the discretion could be inferred because the decision to exclude the evidence was plainly unjust or unreasonable. The circumstances in which we may intervene on an appeal against such a discretionary decision are limited. To infer such error the Director must demonstrate that the exclusion of the evidence was not reasonably open to the trial judge in a sound exercise of the trial judge’s discretion. [15] The asserted specific error (b) challenges a finding of fact as to the state of mind of the relevant police officers at the time that the affidavits in support of the search warrants were signed by each of them. The asserted error (a) challenges a value judgment made by the trial judge as to the seriousness of the impropriety. Error (c) involves both a challenge as to a finding of fact as to the officers’ state of mind and a value judgment as to the seriousness of the impropriety. [16] As to the alleged error as to a finding of fact, we would only be entitled to substitute our own findings of fact for those of the trial judge if he “mistakes the facts” [504-5]. That will only be demonstrated if there is no evidence to support such a finding [R v O’Donoghue (1988) 34 A Crim R 397, 401] or if the finding was not reasonably open on the evidence [Hopley v R [2008] NSWCCA 105, [28]; R v Merritt (2004) 59 NSWLR 557, 573 [61]]. As to the attack upon the value judgment made by his Honour, we would not be justified in substituting our view if his Honour’s view as to the seriousness of the impropriety was reasonably open. Moreover, as the applicant’s reliance on specific errors must be considered in the context of its sole ground of appeal that the discretion was wrongly exercised, the applicant must therefore show that had such error as has been made out, not been made, it would not have been reasonably open to the trial judge to exercise the discretion as he did. [17] Little was said on the appeal concerning the principles which are attracted by s 138 although they were fully ventilated before the trial judge. Both at trial and in this Court the parties proceeded on the basis that the discretionary decision required by s 138 did not essentially differ from that at common law save that s 138 places the onus upon the prosecution to establish that the evidence should be admitted notwithstanding the impropriety or contravention. The qualified proscription in s 138(1) that “the evidence is not to be admitted unless” indicates the importance of according appropriate weight to the effect of any impropriety or unlawfulness [Parker v Comptroller-General of Customs (2007) 243 ALR 574, [57]-[58]]. The exercise of the discretion calls for the balancing exercise to be undertaken that is discussed in cases such as Bunning v Cross (1978) 141 CLR 54 and Ridgeway v The Queen (1995) 184 CLR 19.

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DPP v Marijancevic; DPP v Preece; DPP v Preece cont. [18] The discretionary judgment called for does not involve a simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, namely, the public interest in admitting reliable and probative evidence so as to secure the conviction of the guilty and the public interest in vindicating individual rights and deterring misconduct and maintaining the legitimacy of the system of criminal justice [Bunning v Cross (1978) 141 CLR 54]. The trial judge was right to emphasise as a relevant consideration the undesirable effect of curial approval being given to the unlawful conduct of those whose duty it is to enforce the law. In doing so he was drawing upon the implied power of the courts to protect the integrity of the judicial process. … Consideration of His Honour’s reasons for decision of 18 October 2011

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[52] The substance of the trial judge’s reasons for excluding the evidence is to be found in the conclusions to his reasons of 18 October. He considered that to admit the evidence derived from the warrants would be “to ensure that the conviction of the accused is bought at too high a price by reasons of curial approval of the practice”. His Honour continued: [Transcript 1260-1261] The issuing magistrate was deceived and the integrity of the court was undermined. To approve the bypassing of that requirement by sanctioning the witness of a signature as an equal replacement to an oath would devalue the meaning of an oath. To take an oath binds the conscience. Our whole court system relies on oath taking, whether in the witness box or by affidavit. To admit the evidence here, in the face of a systemic practice of avoiding the taking of an oath when making affidavits, would strike at the very heart of the system of taking evidence. So I have said it has not been satisfactorily explained to me why this practice had developed. Cutting corners or culture were mentioned. Either involves a state of mind that, in my view, devalues the significance of the oath. The swearing of an oath would take, at the most, 15 seconds. Was it embarrassing for the crime squad police to raise the bible or make an affirmation in front of other members? Was it considered that to require an oath cast doubt upon the veracity of the member? Was it an inconvenience to be disposed of? Whatever the reason it reflect poorly upon the police members involved. Police, and for that matter, lawyers should not sanction a culture that pays lip service to such a fundamental requirement as the swearing of an oath. The court, by a wink or a nod, should not undermine the protection given to a citizen by s 81(1) of the Drugs Poisons and Controlled Substances Act and should not condone the integrity of the oath. To condone the practice of Senior Sergeant McIntyre and others, would be an acknowledgment that the taking of the oath is an inconvenient charade. The practice of not requiring the affidavits in support of warrants to be sworn on oath or affirmed. [53] We should say something as to the endemic practice employed within certain sections of Victoria Police of not requiring the accuracy and truthfulness of the contents of affidavits in support of warrants to be sworn to on oath or by affirmation. [54] The importance of making an affidavit in order to obtain a search warrant can hardly be gainsaid. Trials in courts in Victoria and in all other states and territories proceed upon the basis that the evidence that founds the findings of fact, which determine the guilt or innocence of those accused of crimes, is given on oath or by affirmation. Similarly, the reasonable grounds of which a magistrate must be satisfied before he issues a warrant authorising a member of the police force to enter and search land, premises or a vehicle and seize any thing or document and carry it before the Court, can only be established by evidence on oath or by affidavit. [55] An affidavit is the written form of sworn oral testimony. It is an ancient method of providing evidence in court [Bolands and Sayers, Oaths and Affirmations (2nd ed, Stevens) 1961, Chapter 4; Allen v Taylor (1870) 10 Eq 52; Eddows v Argentine Loan and Agency Co (1890) 59 LJ Ch 392; R v Howitt; Ex

Part 3 — Admissibility of Evidence

DPP v Marijancevic; DPP v Preece; DPP v Preece cont. parte Walker (1884) 10 VLR 320]. Until 1989, whenever police needed to obtain a warrant they were required to physically attend court and give sworn oral evidence before a magistrate as to the facts relied on to support the granting of a warrant. This was a clear and longstanding indicator of the significance and gravity of obtaining a warrant. The 1989 Act amended the provision to enable evidence to be given orally on oath or on sworn affidavit [Magistrates Court (Consequential Amendments) Act 1989 Sch cl 42.56]. The new alternative methods from 1989 onwards did not justify or contemplate a derogation of standards – the evidence was still required to be sworn. [56] The fundamental role which oaths and affirmations play in our system of criminal law is readily apparent. The requirements of s 81 of the Act are not a mere technical ancillary to obtaining a search warrant. Just as courts proceed upon the basis of testimony sworn or affirmed, so do magistrates issue search warrants on the basis of testimony sworn or affirmed. [57] A search warrant authorises an entrance upon property and the seizure of property which would otherwise constitute an unlawful trespass. The common law has jealously guarded private property rights and has upheld the right of property owners to exclude other people and the state. Search warrants, which are obtained ex parte, displace those rights. As the Court said in George v Rockett: The enactment of conditions which must be fulfilled before a search warrant can be lawfully issued and executed is to be seen as a reflection of the legislature’s concern to give a measure of protection to [property] interests. To insist on strict compliance with the statutory conditions governing the issue of search warrants is simply to give effect to the purpose of the legislation. [(1990) 170 CLR 104, [5]]

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Similarly, Lockhart J in Crowly v Murphy said: Notwithstanding that Commonwealth and State legislation governs the law of entry, search and seizure in Australia today, it is necessary to bear in mind the fundamental legal conception of the freedom of the individual in his home or premises. It is the cardinal principle in the light of which the statutory authority for the issue and execution of search warrants is read. Even today, there is no right of common law to enter a person’s home or premises for the purposes of search or seizure without the permission of the owner or occupier, except in the case of a search for stolen goods. Entry without such permission or authority of a valid warrant is to commit a trespass and to render the trespasser liable to damages. [(1981) 52 FLR 123, 142. See also R v Burrell [2001] NSWSC 120, [25]] [58] To proffer to a magistrate material which is not sworn or affirmed in order to obtain a search warrant has a tendency to subvert a fundamental principle of our law. [59] On appeal the parties adopted and amplified the submissions made before the trial judge. It is convenient to address the submissions in the course of our further examination of his Honour’ reasons for excluding the evidence. [60] Section 138(3)(a) required the trial judge to take into account the probative value of the evidence. His Honour accepted the prosecution’s submission that the evidence in issue had significant probative value. That finding was not contested on the appeal. [61] Next, sub-s (3)(b) required his Honour to consider the importance of the evidence in the proceedings. The trial judge accepted the pros