Evidence Notes

Contents

General Powers of the t he Court .................................................................................................................. 2 COMPETENCE & COMPELLABILITY........................................................ .......................................................................................................... .................................................. 7 DOCUMENTARY AND A ND REAL EVIDENCE .................................................................................................... .................................................................................................... 9 EXAMINATION OF WITNESSES ................................................................................................... .............................................................................................................. ........... 11 HEARSAY .............................................................. .................................................................................................................................... ................................................................................. ........... 16 Opinion.................................................................................................................................................. .................................................................................................................................................. 25 EXCEPTIONS .................................................................... .......................................................................................................................................... ...................................................................... 25 Experts..................................................................... Experts........................................................................................................................................... ...................................................................... 25 ADMISSIONS.......................................................................................................................................... .......................................................................................................................................... 30 TENDENCY ............................................................ ............................................................................................................................... ................................................................................. .............. 33 12.7

Habit ............................................................ ............................................................................................................................... ...................................................................... ... 35

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Similar fact/propensity evidence ............................................................. ...................................................................................... ......................... 36

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Character ................................................................. ........................................................................................................................... .......................................................... 39

(IMPROBABLE) COINCIDENCE ............................................................................................................... ............................................................................................................... 45 CHARACTER & CREDIBILITY ........................................................................................................ ................................................................................................................... ........... 48 DISCRETION........................................................................................................................................... ........................................................................................................................................... 56 PRIVILEGE ............................................................. ................................................................................................................................... ................................................................................. ........... 60 BURDEN AND STANDARD ...................................................................... ..................................................................................................................... ............................................... 66 Burden of proof................................................................... ............................................................................................................................. .......................................................... 66 D.

Standard of proof .............................................................. .............................................................................................................. ................................................ 68

No case to answer .............................................................. ......................................................................................................................... ........................................................... 71 Exception – admissible on one ground but inadmissible on another ........................................... 71 DNA ........................................................ .............................................................................................................................. ............................................................................................... ......................... 72

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The judge can call witnesses but that is very rare (see Apostilides v Damic)

• They can also question witnesses (s26) and can make legal rulings on evidence as well as direction on evidence. They also sum up and at non jury trials they make up the verdict. verdict. 1.) Law is for Judge to decide, facts are for jury 2.) Some facts are for the judge to decide such as:

a) Some ‘reasonableness’ tests; b) Admissibility questions depending on questions of fact 3.) Judge can tell jury how NOT to reason, but must take care in telling jury HOW TO reason to a conclusion of  fact, especially in criminal trials

General Powers of the Court

S11 1)The power of a court to control the conduct of a proceeding is not affected by this Act, except so far as this Act provides otherwise expressly or by necessary intendment. (2)In particular, the powers of a court with respect to abuse of process in a proceeding are not affected.

• The right to stay proceedings on grounds of abuse of process ‘extends to all those categories of cases in which processes and procedures of the court may be’ converted into i nstruments of injustice or unfairness per Walton v Gardiner and Ridgeway v R

Court’s Control over questioning of witnesses s26 The court may make such orders as it considers just in relation to: (a)the way in which witnesses are to be questioned; and (b)the production and use of documents and things in connection with the questioning of witnesses; and (c)the order in which parties may question a witness; and (d)the presence and behaviour of any person in connection with the questioning of witnesses.

Parties may question witnesses s27 A party may question any witness, except as provided by this Act Order of examination in chief, cross-examination and re-examination s28 Unless the court otherwise directs: (a)cross-examination of a witness is not to take place before the examination in chief of the witness; and (b)re-examination of a witness is not to take place before all other parties who wish to do so have crossexamined the witness.

Manner and Form of questioning witnesses and their responses s29 (1)A party may question a witness in any way the party thinks fit, except as provided by this Chapter or as directed by the court. (2)A witness may give evidence wholly or partly in narrative form if: (a)the party that called the witness has applied to the court for a direction that the

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give evidence in that form; and (b)the court so directs.

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(3)Such a direction may include directions about the way in which evidence is to be given in that form. (4) Evidence may be given in the form of charts, summaries or other explanatory material if it appears to the court that the material would be likely to aid its comprehension of other evidence that has been given or is to be given. Dietrich v R (Right to a fair trial in criminal proceedings) Facts: D was unrepresented and on trial for heroin importation - he appealed to the HC, on the ground that he was an accused charged with a serious offence and so is entitled to council provided at the expense of the State. Held: The HC held that there is no positive right to have legal representation but there is a right to a fair trial, which may involve legal counsel - BUT, when charged with serious offence & no legal rep., crt should exercise its discretion to stay proceedings until legal rep. available (except in exceptional circumstances.)

• NB There is no right to legal rep., per se, but there is a requirement of fairness and this is i mplied in the availability of legal rep. R v BKK (Fair trial only, not best best performance possible) possible) Facts: BKK was tried in district court in 2000 on 13 counts of sexual offences in relation to his daughter - he conducted his own defence after being denied legal aid . Appealed after being convict ed. Held: Grove J in Ct of Appeal said lack of representation was not unfair after balancing public interest with accused financial position, because there was no guara ntee that BKK would be able to get the necessary money if a stay was granted, and in addition the trial had been delayed for 5 years already.

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BKK said he was unwell and could not perform at the best of his ability - Court said that trial required

integrity, not that the accused was performing well.

• Held that the trial was not unfair. • There is an impartial judge in adversarial setting

RELEVANCE S55-6. Evidence must be relevant -> rationally eff ect assessment of probability of the existence o f  a fact in issue 

Facts in issue are : the elements of a criminal case OR factual elements elements of civil case

Requires a logical connection between fact in issue and evidence -> must increase or decrease probability of fact in issue Evidence can be relevant to credibility of other evidence or of witness. Smith v the Queen: The majority held that evidence must be relevant before being admissible; relied upon Whigmore and Thayer -> all facts with rational, probative value are admissible unless some specific rule forbids. Kirby J dissented

Evans v The Queen Heydon J: relevance in context or other evidence. Old rule under common common law used “sufficient “ sufficient 3

relevance” under s135 can exclude evidence. Gummow and Hayne JJ determined that this as unnecessary and there for ch2.3 should not have been relied upon. Kirby J dissented arguing evidence was prejudicial under s137. 

s 56 says that relevant evidence is admissible except as otherwise provided by the Act.

Something is relevant if it is relevant either to a collateral or main fact in issue: s 55(2) CEA

"RELEVANT" MEANS that any two facts that are so related to each other that according to the common  course of experience one fact (either taken by itself or in connection with some other facts) indicates the likelihood of the existence of the other fact. (from SG)  that the two facts are so related that the first fact rationally affects the assessment of  the probability of the existence of the second fact: s 55(1) CEA

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If something is not relevant, it is inadmissible: s 56 CEA

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This is a question of law for the judge  – ie there is no discretion. Evidence may be admissible for one purpose but not for another: Wilson

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The exceptions to the general principle that all relevant evidence is admissible constitute specific rules such as the rule against hearsay, the rule against prior inconsistent statements etc.  

They and others, dealt with later in the course, mandate that relevant evidence nonetheless remain unheard. In turn there are exceptions to each of these exclusionary rules, which will also be examined.

s135. General discretion to exclude evidence The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might(a) be unfairly prejudicial to a party; or (b) be misleading or confusing; or (c) cause or result in undue waste of time.

Evidence must be directly or indirectly relevant to a fact in issue ( Wilson / Smith) Smith) •

Circumstantial evidence Circumstantial evidence may be relevant (Plomp ( Plomp v R / Shepherd v R) R)

s55(1) only requires a minimal connection between the evidence and the fact in issue. If the fact in issue is made more likely or less likely by the evidence, however slightly, it is relevant evidence.

The test is clearly now one of logical relevance (Smith ( Smith / Papakosmas; but cf Stephenson cf Stephenson), ), where under the common law it was seen as one of legal relevance (or sufficient relevance).

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But, the notion of legal relevance is not lost though because s55 is read in conjunction with s135, the general discretion to exclude evidence.

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ADMISSIBILITY IS THE CONCEPT OF WHETHER EVIDENCE IS TO BE RECEIVED . THUS IF EVIDENCE IS ADMISSIBLE IT SHOULD BE RECEIVED AND TAKEN INTO ACCOUNT WHEN DETERMINING THE ISSUES. It is a common law concept which is not defined in the Evidence Act 1995 (Cth) To determine whether evidence is admissible, you have to ask 2 questions: (1) The evidence must be relevant which relevant  which has been described above; and if relevant (2) The evidence does not infringe any rule of evidence that would exclude it. (Question of  law)

If BOTH rules are satisfied, then the evidence will be admissible  – this is a question of law for the judge to decide – there is no discretion. If evidence is admissible for one purpose it cannot be rejected on the ground t hat it is inadmissible for some other purposes: Wilson The trial judge may direct a jury which uses they may make of evidence, and for which purposes  they may not use evidence.

Wilson Wife killed by husband. Crown sought to lead evidence re: fights between wife and husband. Defence objected to the evidence  – trying to prove that the statements of the wife during arguments (which were relevant to intention) were hearsay. Held that the evidence was relevant to show how far the relationship had deteriorated, but not relevant to prove that the statements of the wife were true. Therefore the jury could only use the statements to understand the nature of the relationship, and not to prove that the husband in fact wanted to kill the wife.

THE CONCEPT OF THE WEIGHT OF EVIDENCE REFERS TO THE EXTENT THAT IT SHOULD BE OR MIGHT BE TAKEN INTO ACCOUNT IN DECIDING THE ISSUES – IE ITS PERSUASIVE INFLUENCE. The weight of evidence which has been admitted and the extent to which it is used is a question of fact for the jury to assess. assess. If there is no jury then it is up up to the judge to assess. assess.

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Key elements to be considered in an assessment of weight.

(1)

Credibility – ie whether the evidence should be believed: Was the evidence persuasive?   This will depend on an assessment of any likelihood that the witness who gave the evidence may have some motive to mi srepresent the facts or may even be lying. This involves an assessment assessment of the credibility of the witness who gave the evidence.  Lack of credibility may be deliberate or mistaken:  may be lying; may have faulty memory (due to lapse of time);   may not have been wearing glasses and couldn’t see properly.

(2)

Degree of relevance.

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(3)

Probative value  – ie what the evidence logically tends to prove:  What was the value of the evidence given to proving the facts is in issue?  Was the evidence given by the witness accurate? Was the witness mistaken?  This depends on an assessment of the accuracy of the powers of perception of  the witness and his or her ability to both recall and recount what he or she perceived.

Wakely and Bartley  Accused was in possession of heroin allegedly in a shoe in a hotel room in which he was present Issue was whether the accused was in possession of heroine Evidence that one of the investigating police who was present at the raid dies of an overdose having ingested drugs including heroine Wanted to cross examine the remaining detectives about that issue and was prevented Was it a collateral issue only affecting the credit of the deceased police officer? HELD: High Court Investigation by police was a relevant issue and cross-exam by other evidence should have been permitted Affected whether or not the accused could have been in possession or was in possession of  heroine on that night It showed that one of the investigating officers who allegedly found the accused in possession of heroine had access to it himself and to other drugs not said to be in the accused’s possession Also evidence on how reliable the evidence of the police was on finding the accused in possession of heroine Evidence about the possession of a cocktail of drugs by a police off icer shortly after the incident was also relevant to the investigation of the offence and the way it was investigated 

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Goldsmith v Sandilines Accident in 1993 G sued S for damages arising out of a road accident S were police officers in a police car and G said that S who was driving a car breached his duty of care in the management and control of a police car and was i nvolved in an accident in that accident at the fault of G on 26 June 1993 S said that he was injured on the 22 June some 4 days before playing indoor cricket in Perth and wanted to lead evidence that 1  – g had played indoor cricket 2  – G was playing on the 22 June and 3  – that he said after he was picked up by S on the 22 at the indoor cricket ground that he stuffed his back playing indoor cricket HELD: High Court Held the evidence was relevant as to whether the injuries that were sustained on the 2 6th were sustained by that incident or by the indoor cricket G was cross examined on the fact that he played cricket on the 22nd and he agreed and that it occurred in Perth and was in a particular street  – Defence counsel had the wrong street After G was cross examined, the defence called S and raised where the cricket grounds were  – and counsel got out of him that it could have been near the street that was the wrong street Plaintiff’s counsel cross examined the defendant and pursued the position of the indoor cricket ground   

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Plaintiff’s counsel wanted to recall G and prove that the street was wrong – wanted to reopen Was trial judge correct in refusing him to raise the position of the street in rebuttal evidence Is the position of the street the proving that the position of the ground was not where defence counsel where it was  – looking at the fact in issue? No Got all the evidence that was needed

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COMPETENCE & COMPELLABILITY COMPELLABILITY s12 - Competence and compellability (a) Competency to give evidence is assumed unless specifically excluded by the Act

NB: A witness is competent if they may lawfully be called to give evidence (b) a competent person is compellable to give that evidence (Co-accused not compellable: s17)

s13(1) - Incompetent witnesses are persons who (can't be understood or) don't have capacity to understand questions about a fact in issue (and that capacity cannot be overcome), like: 

 Accused (legal  Accused (legal incompetence) - s17 prohibits the accused from being called to give evidence in chief. But cross examination (in respect of charac ter evidence) is permitted under s112 ( Zurita).  Zurita). Crown may also generally cross examine the Accused  the  Accused under under s27 where Counsel calls  Accused for  Accused for evidence in chief. (Co-accused not compellable unless tried separately: s17)

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Children: Children: BUT for jury direction purposes (Civil/Criminal), s165A prevents regarding children's testimony as being unreliable; irrespective of their age

[HOWEVER: as with jury directions for 'unreliable' adult testimony/evidence (s165), s165A allows parties to apply for jury warning that the child's testimony is 'unreliable' in other aspects (not age) ] 

Mentally impaired impaired - may lack capacity to understand or be understood

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Deaf and mute - although s30 and s31 overcomes this by permitting use of interpreters

But s13(2) recognises that while persons may be incompetent for incompetent for one fact in issue, they may be competent for competent for other facts in issue

s13(3) - competent persons competent persons will be deemed incompetent to give sworn evidence if they don't have capacity to understand their obligation to give truthful evidence

s13(4) & s13(5) - persons deemed incompetent to give sworn evidence [under s13(3)above] may give unsworn evidence where the court advises them about: 

the importance of telling the truth 7

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their obligation to advise the court when they can't remember or don't know the answer to a question

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their obligation to truthfully agree/disagree with statements put forward to them

s13(7) - Evidence given by witnesses before they die or become incompetent is generally admissible s21 - Requirement to give sworn evidence: under oath / affirmation 

A witness giving sworn evidence must take an oath OR make an affirmation (choice (choice provided  under s23)

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A person called merely to produce a document or thing to the court need not take an oath or make an affirmation.

s24 - Swearing of evidence under oath does not require actual religious belief or understanding of  nature/consequence of oaths; hence religious texts not required.

s24A - Alternative Oaths: no need to believe or make references to God  OBJECTION ON RIGHTS OF WITNESSES - CRIMINAL PROCEEDINGS ONLY

s18 - Family of the accused (spouses, de facto partners, children, parents) may object to be a witness for the prosecution if called to give evidence against or about a dealing in which the accused was involved. R v Khan

NB: s18 applies only to relationships existing at the time of giving evidence. No spousal privilege existed at common law (HCA in Stoddart )

s18(4) - Court must satisfy itself that accused's family are aware their objection rights s18(3) - Objection to be made before giving evidence; and judge to decide on 'objection' in jury's absence: s18(5)

18(6) - Family not required to give evidence where court thinks: (a) they are likely to be harmed / jeopardizes relationship between accused & family AND (b) harm/jeopardized relationship outweighs desire to demand evidence

s18(7) - to determine subsection 18(6)(b), court should consider (non-exhaustive ( non-exhaustive): ): (a) nature/gravity of offence in question (b) substance/importance of evidence likely to be given (and weight to be attached to it) (c) other avenues to collect required evidence reasonably available (to prosecutor) (d) nature of relationship between accused & family (likely harm for children?) 8

(e) was the matter disclosed to the family f amily IN-CONFIDENCE

s18(8) - prosecutor cannot comment about the objection or its determination and family's failure to give evidence

DOCUMENTARY AND REAL EVIDENCE Prove contents of documents cf  2.2 of EA however does not refer to admissibility

Ch 3 does as does s48. S47 defines a document Primary evidence are original documents Secondary evidence are copies, recordings, electronic records etc

ss 166-169 reduce the risks of secondary evidence s193 Discovery powers ameliorate risk Butera v DPP No oral evidence is required to verify transcript, if there is significant disagreement it may be used as an aide memoire. Documents do not prove themselves

S58 gives Court ability to examine and determine authenticity of documents The challenges to a litigator in regard to proving documents electronic form are threefold: (a) the means by which a party party will adduce the evidence, the the contents of  which are said to be relevant; (b) whether the document is admissible in the sense that that it is not subject to the exclusionary rules of the Evidence Act 1995; (c) the probative value of the evidence. Sections 71 and 161 of the Evidence Act examined above facilitate proof of  matters. The legislature also has facilitated the proof proof of contents of documents by s48 of the Evidence Act 1995 Another helpful provision for the management of evidence in document-heavy litigation is Section 50 Proof of voluminous or complex documents as well as s146 and s147 S149 Governs documents that have been attested

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GENERAL RULE: Extrinsic evidence IS admissible - to resolve an ambiguity in a written document but not to cut down or extend plain meaning: Codelfa Codelfa Constructions Pty Ltd v State Rail Authority of NSW  -

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Extrinsic evidence. People who come together to make an a greement in writing and whether evidence other than the written a greement can be used to establish the terms of t he written agreement. Recognised an assumption that if the agreement is reduced to writing it conta ins their entire agreement. Extrinsic evidence of other terms is not acceptable. per Mason J (with whom Stephen and Wilson JJ agreed)

Rebuttable assumption if the parties agreed to terms to be partly in writing and partly oral. Can then adduce evidence of oral evidence. Where cannot establish that the parties intended the agreement to be partly oral and partly written in that instance you can get outside evidence if the writing is ambiguous. Can get evidence to clarify what the parties meant by the writing itself.

NAB v Rusu although criticized, determined authenticity before relevance. Bryson J rejectied authenticity was a question of relevance unde s58(1) he stated that it was a different question therefore not provisionally relevant under s57 as the document did not identify bank or account holder. Lee v Minister for D of Immigration and multicultural affairs held in federal court that court may draw any inference in relation to authenticity -> wide scope of  s.55 A similar decision was made in ASIC in  ASIC v Rich 2005 O’mera v Dominican Fathers 2003 brought NAB v Rusu into doubt and that the evidence should have

been rejected under s135

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EXAMINATION OF WITNESSES s26 - the Court generally controls: (a) the way in which witnesses will be questioned (eg leading / non-leading) (b) production of documents/things relating to witness questioning (eg statements to refresh memory, prior in/consistent statements) (c) which party calls/questions first, second, etc [also see courts discretion in s28: regarding order of conducting Evidence-in-chief Evidence-in-chief / Cross examination / Re examination] examination] (d) persons present (and their behaviour) during the questioning of witnesses

Eye witness testimony must be given verbally (Butera v DPP 1987)

KNEEBONE - Duty of Crown to call all a ll material witnesses else Jones else Jones v Dunkel direction Dunkel direction sought a. This only allows the court to draw an inference from the present inference and may not be used to fill gaps b. May only occur where a party is required to explain or contradict something c.

Does not apply to cumulative evidence

d. Only applies to the calling of witnesses e. Exceptional in criminal matters Weissensteiner situation Weissensteiner situation Weissensteiner v R: inconsistent account of wife and child’s disappearance, accused did not give evidence – not an admission, for prosecutor to put to proof  VELEVSKI – an adverse inference may be drawn if a witness that is expected to be called is not R v Birks – an adverse inference may be drawn by the failure to cross examine S.20 EA – right to silence may be commented upon but may not imply guilt Reviving Memory IN COURT

s32: Attempts to revive memory in court (1) witness needs leave to revive their memory in court (2) Court to consider witness's ability to revive memory without document and the relevant portion of document was authored by witness at a time when the incident was fresh in their mind or found to be accurate (3) with leave, witness may read aloud from document (4) court may give other party access to the relevant portion of document

s33: special rules for Police Officers in Criminal proceedings 11

(1) Police officer can read from their statement during Evidence-in-chief where (2) it was made at the time or soon after the incident provided it was signed when made and a copy was provided to the defendant

Reviving Memory OUT OF COURT (DaSilva)

s34 - Attempts to revive memory out of court (1) A party may request the Court to direct their opponent(s witness) to provide documents or things used to revive their memory out of court; and (2) the court may refuse to admit the evidence if the opponent fails to comply with the court's request (without reasonable excuse)

Use of the Document by Opposing Counsel s35 - tendering/adducing documents 'produced' by opponent/third party (1) party receiving furnished/inspected documents has no obligation to tender them in evidence (2) opponent/third party has no right to tender such documents where the party fails to do so

Cross Examination and Exception to Rule Against Prior CONSISTENT Statements Common law: prior consistent statements cannot be used to strengthen witness testimony (Corke v  Corke and Cook ) and such evidence would generally be in breach of  s101A and s102 (credibility rule)

s101A - defines 'credibility evidence' as evidence that is relevant only because it affects a witness's credibility  (and may sometimes also affect the credibility of other evidence that is r endered inadmissible due to hearsay or tendency/coincidence rules).

s102 - 'credibility evidence' about witnesses is prima facie inadmissible (subject to exceptions)

s103 - is an exception to the rule in s102 and allows the prosecution to damage witness credibility by introducing a prior inconsistent statement to challenge their testimony (during cross-examination).

Although s103 does not require leave, it requires persuasive arguments which will 'substantially' impact the witness's credibility, such as by showing (non-exhaustively  ( non-exhaustively ): ):

s103(2)(a) - witness knowingly/recklessly made false representations when obliged to t ell truth

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s103(2)(b) - significant amount of time elapsed since the occurrence of relevant incident/event

In such situations (subject to leave) s108(3) may permit a witness to use their prior consistent statement: (a) to re-establish their credibility; or (b) in attempt to invalidate any express or implied allegations of them fabricating / reconstructing their testimony

Finality principle - Generally, the cross examiner is bound by answers given in respect of questions that solely relate to credibility and cannot later lead contradictory evidence.

s106(1) - If during cross examination a witness denies facts/assertions relating to their credibility, then depending on nature/importance of fact/assertion denied, party wanting to lead evidence to

principle) rebut such denial may be granted leave. (s106 is an exception to the finality principle) s106(2) - But LEAVE NOT REQUIRED where evidence being led to show witness: (a) has motive for being biased or untruthful, (b) was convicted of an offence (c) has made prior inconsistent statements (d) was unable/unlikely to have knowledge of details/matters given as evidence (e) knowingly/recklessly made false representations when obliged to tell truth

Principal exceptions are: 1. To establish previous complaint by the victim of a sexual assault. 2. To support correct identification of a person Statutory Exceptions: s. 92, 93, 93A Prior INCONSISTENT Statements

s43(1) - A witness can be cross examined about an alleged prior inconsistent statement even where the examiner doesn't provide the witness with complete particulars / document of their statement.

s43(2) - where witness doesn't admit to making t he prior inconsistent statement, the examiner can't adduce evidence of the statement unless sufficient attempt made to assist witness in identifying their prior statement AND the examiner draws the witness's attention by highlighting the inconsistent portion of their statement

BROWNE v DUNNE rule: DUNNE rule: party seeking to contradict witness testimony must highlight the contradictory/inconsistent substance of evidence when cross-examining the witness ( Allied ( Allied Pastoral ) 13

Improper Questioning

s41(3) - 'Improper questioning' means question(s) or series of questions which are: (a) misleading or confusing; or (b) unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive; or (c) put to the witness in a belittling, insulting or otherwise inappropriate tone/manner; or (d) has no basis other than a stereotype (about witness's sex, race, culture, ethnici ty, age, mental, intellectual or physical disability)

s41(1) - court may disallow improper question(s) put to a witness during cross examination, or inform witness that it need not be answered.

s41(2) - court must disallow improper question(s) put to vulnerable wi tnesses during crossexamination, or inform witness that it need not be answered, unless court is satisfied that the question needs to be put due to all relevant circumstances of the case.

s41(4) - defines 'vulnerable witnesses' - as persons cognitively impaired/intellectually disabled, persons under 18, or other persons who court thinks are 'vulnerable'.

Unfavourable Witnesses (R v Le) Unfavourable = 'Not Favourable'. Doesn't have to be 'hostile' or 'adverse' to party's case: McRae

s38(1) - Subject to leave, the party who called the witness to give evidence-in-chief, can use leading questions as appropriate as if they were cross-examining the witness about (a) the witness's unfavourable statements against the party OR (b) information with which witness should be reasonably familiar and court thinks they are trying to withhold such information OR (c) the witness's prior inconsistent statement

s38(2) - does not permit the party to re-examine an unfavourable witness

s38(3) - With leave, the questioning may extend to matters relevant only to credibility (subject to rules regarding admissibility of credibility evidence)

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Relevant to leave is:  

whether notice of intention to seek leave was given at the earliest opportunity; and

DPP v McRae). the nature of likely questioning of the witness by another party ( DPP

Also consider other discretions/obligations: discretions/obligations:

s192 (leave subject to certain terms depending on whether adjournment necessary, avoid undue delay, unfair prejudice depending on importance of evidence and nature of case) - Hogan: leave should be granted to avoid shifting focus of trial on 'collateral'matters

s135 (General discretion to exclude unfairly prejudicial/confusing/misleading evidence, or to avoid undue waste of time)

s137 (Court obligation to exclude unfairly prejudicial evidence in criminal cases)

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HEARSAY

Controlling the hearsay use • First, does the hearsay rule in s 59 apply?  –  NO:  NO: the evidence evidence is admitted admitted for a purpose other  than proof of an asserted fact • ‘Dual use:’ use:’ the hearsay rule does not apply (s 60) • BUT, the trial judge may limit the use of the evidence to its non-hearsay use (s 136)

 – YES… • … but the evidence evidence is admissible admissible under under an exception exception to the hearsay rule (see ss 62-75, 81-90) • A party can apply for a jury warning that the hearsay use of the evidence is unreliable (s 165)

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STEP 1 - Is the "previous representation" relevant? [s55]  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.

STEP 2 - Consideration of the Hearsay Rule: Rule: [s59] 2 

Under s59, evidence of a 'previous representation' made by a person is prima facie inadmissible 3

where it is expressly or implicitly intended to be used to prove the existence of a fact

[NB: the party seeking admission of the 'previous representation' has burden of proof to show that it was not an 'intentional assertion' ]

1. Where "previous representation" is relevant, how will it be used?

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The Dictionary in Part 1 states that a 'Previous representation' is an out-of-court (proceeding) statement,

express or implied from words or conduct (regardless of whether it was 'intended' or eventually 'communicated') 2

Remember, s 59 only applies to evidence used to prove the truth of what was said (i.e. for a 'hearsay purpose' ) 3

an implied representation is only hearsay if the person intended to assert the fact (Hannes, (Hannes, Walton, Ratten, Immigration Minister v Capitly )

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a. Non-hearsay purpose (as 'circumstantial' or 'original' evidence / 'other purpose') hence admissible =>Also CHECK STEP 3 after the following:

i. Subramaniam - the evidence was merely merely being used to prove "the " the fact that the 'previous representation' was made" made " and NOT to prove "the "the truth in it "

[Representations used as evidence of their effect on another person ] ii. Ratten - "the victims words were not a statement of a fact  – but together with her tone of voice, they were relevant evidence of her state of mind"  [the state of 

mind4 being the other purpose ] iii. Walton - the child intended to 'greet ' greet his father ' and NOT to 'assert 'assert or disclose that the person who he spoke with was his father '

iv. Van Beelen - statements used as 'original evidence' where it is relevant to prove that 'the 'the statement was said/made' said/made ' - eg: defamation cases, contracts (Firman, ( Firman, McRaild )

v. Kamleh: Kamleh: where 'previous representation' used to infer ' consciousness of guilt ' Woon: person's responses/reactions relevant to a 'previous representation' vi. Woon:

vii. Welsh: Welsh: a doctor's reliance on 'previous representation' of patient's health history to prove the basis of the medical advice/treatment given. Factual foundation of expert opinions (Welsh) e.g. doctor's opinions, valuers, accountants, scientists, engineers, technical experts, drug identification experts, etc

viii. Papakosmas: Papakosmas: prior 'consistent' statements were called upon in a trial for another purpose - i.e. 'previous representation' admitted to prove witness/complianant's credibility. cf Hannes cf Hannes Lee: prior 'inconsistent' statements were called upon in a trial for another ix. Lee: purpose

b. Hearsay purpose (as 'testimonial' evidence / 'factual purpose') - hence inadmissible i. Hannes - argued that his 'previous representation' in the document were not intended 'to assert the existence of Mark or M Booth' Booth ' and hence the document was not hearsay and hence admissible. 5

Spigelman CJ: Distinction between 'intended  ' intended ' implied assertions and 6

'unintended ' implied assertions. Result: s59 modified by inserting words "it "it can

4

See Step 4 below - There is now an exception to the hearsay rule in s 66A for contemporaneous (ie. ‘at the same time’) representations about own health, sensations, or state of mind

17

reasonably be supposed " to change the test from requiring 'subjective ' subjective intent ' to requiring 'objective 'objective intent '

2. Hence four strikes (to prove it is "testimonial" ), and it’s out (inadmissible => but CHECK STEP 4 ): a. A previous representation; WHICH b. Asserts the existence of a fact; WHICH c.

The person intended to assert; AND WHICH

d. Is used to prove the asserted fact.

STEP 3 - s60 'hearsay purpose' use of evidence (except admissions in criminal criminal cases) 1. Once a 'previous representation' is admitted, s60(1) allows it to be used for 'hearsay purpose' (i.e. 'hearsay purpose' - factual existence or truth can be inferred from the 'previous representation').

a. s60(1) applies to evidence admitted for 'non-hearsay' purpose (see above list), b. s60(2) also allows admitting evidence that is 'second-hand' or more 'remote' hearsay (including first-hand hearsay 'admissions'/confessions - s81(1) and s82), inserted after Lee v R expanded the importance of exceptions

c.

but not where the 'admission'/confession relates to a criminal proceeding: s60(3)

[NB: jury direction to exclude evidence on basis of being unreliable under s165 ] 2. Consider s136 discretion to limit application of s60(1)&(2) 7

The trial judge may exercise discretion under s136 limit the use of the evidence to its 'non-hearsay' use where: 

the other party may otherwise be 'disadvantaged' ' disadvantaged' (Roach ( Roach v Page) Page)



misleading / confusing evidence - where the evidence contains 'genuinely disputed, conflicting or unreliable facts' (Quick (Quick v Stoland Pty Ltd )

5

‘Mark exists’ is necessarily contained in the intention to state that ‘there is a need to take Mark to the meeting’ 6

Walton - There is generally an ‘extreme unlikelihood of concoction’ in cases involving 'unintended implied  assertions' (Mason J). But cf a pproach of Wilson, Dawson and Toohey JJ: the chil d’s words (Hello Daddy) were ‘no more than hearsay and must be excluded ' 7 cf s135 - which is the judge's discretion to exclude evidence

18

STEP 4 - Consider exceptions to the s59 Hearsay Rule Rule 1. Is it 'First-Hand' hearsay? if yes, 8

General exception for 'First-Hand' hearsay (s62) applies - has the effect that s59 will not apply where: 

The witness (or maker of a 'previous representation') saw, heard or o therwise perceived the representation being made; AND



The maker of the ' representation' had personal knowledge of the asserted fact  – i.e. knowledge based on something the person saw, heard or otherwise perceived (but not other hearsay); AND



The party seeking to adduce the 'previous representation' gives a notice (under s67) to all 9

10

other parties of their intention to adduce the 'representation' as evidence under s63 , s64 11

12

and s65 . No notice is required under s66 . APPROACH TO TO ALLOW ALLOW 'FIRST-HAND' 'FIRST-HAND' HEARSAY EVIDENCE: 'CIVIL' CASES vs. 'CRIMINAL' CASES

Specific provisions which allow 'first-hand' hearsay for CIVIL proceedings s 59 does not apply to the 'representation' or 'document' where: 

maker of the representation is not 'available' to give evidence: s63



maker of the representation is 'available', but it would cause undue expense or delay, or would not be reasonably practicable, to call them as a witness: s64(2)



the maker is called as a witness and c an give evidence themselves, or ‘first-hand,’ but 13

document cannot be tendered until end of examination-in-chief: s64(3)&(4)

[NB - the maker is not 'available' if they are dead, incompetent or cannot be compelled to testify, or it is unlawful for them to testify .

8

Applies to both 'Civil' & 'Criminal' proceedings

9

Exception-civil proceedings if maker not available

10

Exception-civil proceedings if maker available

11

Exception-criminal proceedings if maker not available

12

Exception-criminal proceedings if maker available

13

No s67 notice required under subsections 64(3) & 64(4)

19

The Onus of proof that the maker is 'unavailable' (s63) lies with the party alleging so; as is the onus to prove that it would cause undue expense or delay (s64) to do so or t hat all reasonable steps were taken to find or compel the maker (Caterpillar (Caterpillar v John Deere #2) #2 )].

NB: a party can apply for a jury warning that the hearsay use of the evidence is unreliable (s 165: adults / s165A: children) - even if unreliability relates to 'identification' evidence

Specific provisions which allow 'first-hand' hearsay for CRIMINAL proceedings s 59 does not apply to the 'representation' where: 

s65: maker of the representation is not 'available' 14 to give evidence



s65(2): prosecution (or defendant) can use first-hand evidence of: o

Representation made under a duty (i.e. within the course of someone's employment e.g. public-servants, police officers, procurement officers' delivery records): Price v Torrington and Dromore Fresh Produce

o

Representation made when or shortly after t he asserted fact occurred, AND the circumstances of making the representation (R (R v Ambrosoli ) suggest an unlikelihood of fabrication (Williams (Williams v R / Harris v R) R ) or concoction (Ratten, (Ratten, cf. Bedingfield / Brown) Brown)

o

Representation made in circumstances that make it highly probable (such as from a spontaneous response when caught off guard

15

- R v Benz) Benz) that the

statement is a reliable (R ( R v  Ambrosoli   Ambrosoli ) - very strict test compared to ss(2)(b) above (Conway  (Conway )

Walton (1989) There are occasions where the circumstances combine to render evidence sufficiently reliable for it to be placed before the jury for consideration and evaluation of the weight that should be placed on it.

Mason J @ 230: 230: thought in the case of implied assertions that where the information was not intended to be conveyed, there was a lot less chance of concoction and deliberate lying. 14

[NB - the maker is not 'available' if they are dead, incompetent or cannot be compelled to testify,

or it is unlawful for them to testify. The Onus of proof that the maker is 'unavailable' (s65) lies with the party alleging so; as is the onus to prove that it would cause undue expense or delay (s64) to do so or that all reasonable steps were taken to find or compel the maker (Caterpillar (Caterpillar v John Deere #2) #2 )]. 15

as opposed to a pre-meditated response which can a lso be spontaneous

20

There is inherent reliability and the hearsay rule should be relaxed. stated it was clearly open to the trial judge to admit the evidence.

Deane J agreed @ 236: a flexible approach should be taken. In identifying the caller either during, immediately or after a telephone call would perhaps fit into this area. Therefore bo th Mason and Deane would have allowed the son’s implied assertion into evidence.

The general area inherently reliable exception probably hasn’t developed very much. A number of the HC said it is not going to recognise any further exceptions. So this area of telephone identification is probably the only thing with certainty is an example of this exception.

Pollitt (1992) Case about a botched murder job by a hired killer. Pollitt was the hired killer and his accomplice, Allen, who arranged the murder subsequently died, and could not give any any evidence. P killed the wrong person. Pollitt rang up Allen and had already received some money and was to get the rest when the job was done. When Allen was talking to the hirer, he got off the phone and said to some people who had

witnessed the conversation “that was Pollitt, I have already given him $5000 and he wants more for a job he hasn’t done”. The Crown was trying to get this evidence in against P to prove he was the one who had committed the murder. The conversation itself was hearsay. hearsay. The Crown tried to argue that it it was relevant to the state of  mind of P so the conversation was admissible and also had to link P to the conversation so the identity of the caller was relevant.

Held Two aspects. They were successful in the lower courts but not later. The HC said the content of the call was inadmissible It was clearly hearsay because he said it was Pollitt on the phone  – it was not implied but express. ex press. Much like the second point in Walton.

21

What they said about the identification aspect is obiter anyway but they talked about had it been

admissible whether they could have used the statement “that was P on the phone” to prove who the conversation was with. Mason J said he would have allowed an implied assertion of identity during the call. And also perhaps express assertions. Said that it should be admitted when clearly spontaneous and has a high degree of reliability and can be acted on with safety. He said that telephone conversions often had these characteristics. Deane J says he would have allowed a statement of the identity of the caller: before, during and after. (same as what he said in Walton) It would not go to the content of the conversation, just to prove the person you were talking to. McHugh J said he would allow the identity identity during, immediately, before and after. after. But only allowed if 

ordinary social and business call, therefore wouldn’t have allowed it in i n this case. Toohey J- Said should have a flexible approach and identity during the call may be more reliable. Gaudron, Dawson JJ- unnecessary to decide. Brennan J- there will be no more new exceptions to the hearsay r ule based on reliability. Only a few would say there should be a general inherently reliable exception but clearly Pollitt is Pollitt is only really authority for the proposition that there is a telephone exception to identify who you are speaking to.

R v Benz (1989) Mother and daughter were convicted of killing de facto. A witness saw the two on a bridge and asked if they were OK.

Daughter said, “mum is sick”. Tendered to establish relationship between the two. Gaudron and McHugh: recognised a strong case could be made for developing and applying the common law rules of evidence by reference to the principle that hearsay evidence will be admitted when it appears to have a high degree of reliability. HELD: Not admissible for the purpose of establishing the relationship. Again the reason was because it was express, said this is my mum. This is as opposed to saying hello on a phone because you do not intend to tell anyone that is around that this is X on the phone. It is a greeting.

22

Bannon (1995) strict approach to allowing an exception based on reliability of the evidence. Look at s 65(2)(c) CEA - an exception where the statement has been made in circumstances that make it highly probable that it is reliable. (the act is recognising a reliability exception which is not generally accepted at CL at this stage.)

o

16

Representation against interests (R v Lee / R v Suteski ) of person who made it

AND in circumstances that make it likely to be reliable - less strict than ss (2)(c) above 

evidence of testimony in other proceedings: s65(3)-(6) - e.g. where the accused (or their counsel) cross examined the maker or did not have a reasonable opportunity to cross examine the maker in another proceeding



defendant can use 'first-hand' hearsay evidence or a document: s65(8) - leniency to the accused



retaliatory hearsay exception of s65(9) allows other parties (particularly prosecution) to 17

lead additional 'first-hand' hearsay relating to matters raised by the defendant under the lenient provision of ss(8) above 

s66: where the maker is available to give evidence and is called as a witness o

they can give evidence themselves, or even g ive ‘first-hand’ hearsay evidence but documents cannot be tendered until end of examination-in-chief; AND

PROVIDED o

The maker's 'representation' was made when the occurrence o f the event/fact was fresh in their memory (Graham ( Graham v R); R); AND

o

s66(2A) - allows the court to take into account other relevant matters (apart from 'time') including nature of the event/fact and the age and health o f the maker

NB: a party can apply for for a jury warning that the hearsay use of the evidence is is unreliable (s 165: adults / s165A: children) - even if unreliability relates to 'identification' evidence

16

s65(7) - Statements contrary to the person's own interest whereby they risk damaging their own reputation, prosecution/conviction for an offence or expose themselves to risk of damages in tort.

17

perhaps with a view of 'completeness' and to establish proper 'context' of the defendant's claims in s65(8)

*************FIN**************

23

2. Exception under s66A - contemporaneous representations s66A: a person's contemporaneous statements about his own health, feelings, sensations, intentions, knowledge or state of mind are admissible even if the maker is not called ( Perry / Perry / Walton) Walton) (1981) 28 SASR 95, Walton (1989) 166 CLR 283, 63 ALJR 226.

NB. ‘State of mind’ is a matter of fact, so can fall within the hearsay rule (s66A is an exception to s59)

3. Exception under s69 - Business Records PROVIDED the statement is not made for or in contemplation of legal proceedings or made in connection with (Vitali (Vitali v Stachnik ) an investigation relating to or leading to a criminal investigation: s69(3), a 'representation' in a document is admissible if: o

it is part of a record made in the course of or for the purpose of business: s69(1)

o

by a person who might be thought to have personal knowledge: s69(2)

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Opinion Section 76 is the basic rule and ss 77,78,79 and 81 outline the exceptions. exceptions. Opinions are inferences drawn from facts General Rule: Evidence of opinions is not admissible (1) Witnesses limited to describe physical perceptions:  What they saw, heard, felt, smelt, tasted (2) Witnesses may not offer an opinion or an analysis or an inference or a value judgement which emerges from ANY facts (received or not)



It is the Court (the tribunal of fact) that draws inferences from the facts proved.

s.76 EA The opinion opinion rule Evidence of an opinion is not a dmissible to prove the existence of a fact about the existence of which the opinion was expressed. Note:

Specific exceptions to the opinion rule are as follows:

summaries of voluminous or complex documents (subsection 50(3)); evidence relevant otherwise than as opinion evidence (section 77); lay opinion (section 78); expert opinion (section 79); admissions (section 81); exceptions to the rule excluding evidence of judgments and convictions ( subsection 92(3)); character of and expert opinion a bout accused persons (sections 110 and 111). Other provisions of this Act, or of other laws, may operate as further exceptions.       

EXCEPTIONS Experts 79 CEA Exception: opinions based on spe cialised knowledge

If a person has specialised knowledge based on the person’s t raining, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.

 

If person has specialised knowledge, then the opinion rule does not apply. Two things: Makes no mention of a recognised branch /field of knowledge A person can be considered an expert based on experience and experience alone.  

25

HG v the Queen The opinions of expert witness were never expressed in admissible form. An expert whose opinion is sought to be tendered should differentiate between the assumed facts upon which the opinion is based, and the opinion in question [9]

44 Gleeson CJ held “Experts who venture "opinions", (sometimes (sometimes merely their own inference of  fact), outside their field of specialised knowledge may invest those opinions with a spurious appearance of authority, and legitimate processes of fact-finding may be subverted. The opinions which Mr McCombie was to be invited to express appear to provide a good example of the mischief  which is to be avoide d”.

Another issue to examine is what is meant by “wholly or substantially based on that knowledge”. R v Tang, Hien Puoc [2006] NSWCCA 167 the court (Spigelman CJ, Simpson and Adams JJ) held that s 79 has two limbs. Under the first we

identify ‘specialised knowledge’ and under the second that the opinion is ‘wholly or substantially based on that knowledge’. Held that they failed to identify second limb

Makita v Sprowles [2001] NSWCA 305 Specialised knowledge:

Heydon JA said if evidence is to be tendered as expert opinion then it must be shown that there is a field of specialized knowledge and the person can be identified as an expert by years of training, study or experience and the opinion given must be based wholly or substantially on that expert knowledge. So an expert, establishing the necessary ne cessary credentials must show the trial judge how the expertise on which the opinion is based applies to the facts observed in order to produce that opinion. Makita v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705

[Heydon JA: if expert opinion is to be tendered it must be shown that there is such a field of specialized knowledge and that the person can be identified as an expert on the basis of years of training, study or experience. Witness needs to demonstrate how the opinion was formed – the process by which the specialized knowledge was applied to the facts observed in order to produce that opinion. Summary of requirements to satisfy expert opinion exception: exception:  

person must have specialised knowledge; must demonstrate they are qualified in the area of specialised knowledge (by years of training, study or experience)(Makita) experience)(Makita)

26

opinion must be wholly or substantially based on their specialised knowledge (HG v The Queen; R v Tang) Opinion must be presented in a form that enables the court to distinguish fact from opinion (HG v The Queen) Must be a recognised field of specialised knowledge (Makita) Witness must demonstrate how the specialised knowledge was applied to the facts observed; how the opinion was formed (Makita); (Makita); make transparent the reasoning process leading to the formation of the opinion (Dasreef) A condition of admissibility is that any assumed facts on which the opinion is based are established proved by the evidence (the common law ‘basis rule’ or ‘proof of  assumption rule’ retained by the Heydon J in Dasreef 2011) Great care must be taken when the opinion moves close to the ultimate issue (Forge) Opinion must not impinge on the role of the fact-finders whose opinion is determinative





 



 

S108

s108C is an exception to the credibility rule and allows evidence by a person about the credibility of another witness to be adduced if the person has specialized knowledge based on training or experience and if the evidence is evidence of an opinion based whol ly and substantially on that knowledge and which could substantially affect the assessment of a

witness’s credibility. If these requirements can be met than expert opinion evidence relevant to credibility can be allowed. Ultimate issues

Forge v Australian Securities and Investments Commission {2004] NSWCA 448.

In this case the issue was expert opinion and director’s duties. The expert opinion and its effect on the ultimate issue was discussed in detail. The court held that s 80 (a) (reference to the ultimate issue) means the ultimate fact in issue and not the legal issue. The court also stressed that care must be taken when an expert opinion moves close to the ultimate issue. Section 80 CEA Ultimate issue and common knowledge rules abolished Evidence of an opinion is NOT inadmissible only because it is about: (a) (b)

a fact in issue or an ultimate issue; or a matter of common knowledge.





Although this appears to abolish the “Ultimat e Issues” there are NSW authorities that suggest that this does not abolish the rule where it is ultimately for the tribunal of fact to apply a legal standard to facts found.

A fact in issue or an ultimate issue 

The reference to an ultimate i ssue does not enable a witness to express an opinion on the ultimate legal issue to be determined by the Court:  Allstate Life Insurance Co. Co.

27





E.g., a witness cannot give an opinion that an accused is guilty

The provision does appear to abolish the prohibition of opinion as to ‘mixed law and fact’, with the result that witnesses can give opinions on matters such as whether a person was negligent – but vide s.78 this is restricted to experts and not non-experts.

Convictions as evidence of underlying facts

Section 91 - Exclusion of evidence of judgments and convictions (1) (2) Note:

Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding. Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose. Section 178 (Convictions, acquittals and other judicial judicial proceedings) provides for certificate certificate evidence of decisions.

Section 92 - Exceptions (1)

Subsection 91(1) does not prevent the admission or use of evidence of the grant of probate, letters of  administration or a similar order of a court to prove: (a) the death, or date of death, of a person; or (b) the due execution of a testamentary document.

(2)

In a civil proceeding, subsection 91(1) does not prevent the admission or use of evidence that a party, or a person through or under whom a party claims, has been convicted of an offence, not being a conviction: (a) in respect of which a review or appeal (however described) has been instituted but not finally determined; or (b) that has been quashed or set aside; or (c) in respect of which a pardon has been given.

(3)

The hearsay rule and the opinion rule do not apply to evidence of a kind referred to in this section.



In proceedings in Federal jurisdiction: General rule: evidence of decision, or finding of fact, inadmissible to prove existence of a fact in issue  – even if that fact is relevant for another purpose: s.91 However: in civil proceedings, s.91 does not prevent admission of evidence that a party has been convicted of an offence, unless the conviction: Is subject to review or appeal not finally determined Has been quashed or set aside Has been pardoned. 



  

Lay Opinion

s.78 CEA Exception: lay lay opinions The opinion rule does not apply to evidence of an opinion expressed by a person if:

28

(a) the opinion is based on what t he person saw, heard or otherwise perceived about a matter or event; and (b) evidence of the opinion is necessary to obtain an adequate account or understanding of the person’s perception of the matter or event. May be more restrictive than the common law in what is permitted 

Lithgow City Council v Jackson [2011] HCA 36 The court narrowed the circumstances in which which a lay opinion will be allowed. The court court stated that in order to be admissible certain requirements must be met according to s78. What is very i scope of s 69 has been widened in relation to business documents or r ecords. Just because a document is defined as a business document does not automatically mean it is admissible. If an opinion is found in a business record it is still subject to ss 76 -79. In the above case ambulance officers called to a scene where the plaintiff had fallen and injured

himself while walking his dogs, wrote their field notes about the plaintiff’s apparent injuries. At trial the officer’s notes were admitted into evidence but not as going to the truth of what was written.

The Court of Appeal reversed that decision and held the written documents, the patient’s history, were business records and therefore subject to s 69 as a lay opinion and as a lay opinion should have been admitted as an exception (s 78) going to the truth of what was written. In the High Court it was held that in Smith v The Queen their Honours held the opinion of the police officers about the robber they recognized in the photos should be rejected for lack of relevancy.

Kirby J’s comments went further … their opinion was to be rejected and would be anyway because it was not lay opinion. Lay opinion has to be based on what a person perceived of an event. The reality was the police did not perceive the robbery so no inference could be drawn by a witness about an event. The court in Jackson in Jackson also referred to s55 relevancy rel evancy requirements. Admissibility under s78 requires the foundation of s 55. Opinions in business records are subject to ss 76-79. The HC firmly says that the opinion rule applies to in court testimony and to prior representations including business records. records . In the result while s 69 provides an exception to the hearsay rule for business records, there is no exception for these records from the opinion rule.

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ADMISSIONS An admission is a previous representation: 

made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding); and



adverse to the person's interest in the outcome of the proceeding.’

s87 - admission can be made via statement (written or oral), adoption of a statement or on behalf of  a person who has given their authority

s81 - Hearsay & Opinion rules don't apply to evidence of relevant previous representations 18

surrounding an admissions where those representations are reasonably required to f ully understand the admission. Although s82 - Hearsay rule still applies where evidence relating to admissions are not 'first-hand'

s83 - Where a third party admits to something, the admission is inadmissible without their consent However, when there are 2 parties to a proceeding s81 does not apply to a third party. This is because in a trial of co-accused there are really two trials in one and s81 wil l not include a third party. Although do see s83!

With s 83 ‘exclusion of evidence of admissions as against third parties’ what we have is a device to make sure that evidence of an admission by a first defendant (D1) cannot be used against D2 … unless D2 consents to this. If the second defendant wants to use or rely on some parts of the admission then the whole admission will be admissible for or against the person. The purpose of my comment here is to understand that ss 82 and 83 operate as restrictions on the application of s81.

Don’t forget that admissions can also be statements of agreement. Such situations then get caught with s 81(2) (b) which says …”hearsay and opinion do not apply to evidence of a previous representation: … (b) to which it is reasonably necessary to refer in order to understand the admission.” Zhang invoked s84, 85 and 90. Look now at s 84. The point about s84 is the fact that there is no discretion to be exercised. If any of those criteria are satisfied the admission must be rejected. This is different from s90 and s85 which deals with reliabilities

18

shortly before - shortly after

30

In Em v the Queen Another question about the reliability of the evidence being irrelevant to the Swaffield where the court said ‘unfairness’ rules in s 90 was rejected by the court who referred to Swaffield where while unreliability is important it is not exclusive.

I think the important thing to take from Em is the effect of other provisions on s 90 such as ss84-86 and ss137-139 inclusive.

We will deal later with the discretions under ss 138-139 but for now I want you to always remember the interrelationship issues between s 90 and s 138-139.

(i) New approach by HCA in Swaffield

  

Exclude if not voluntary Exclude if, because of circumstances in which it was made, it was not reliable If voluntary and reliable, exclude in public policy discretion where illegal or improper conduct

Swaffield  charged with arson, refused to speak (exercised right to silence) undercover policeman was also pursuing Swaffield o n another matter Police asked undercover policeman to ask Swaffield next time about the crime (arson) Swaffield revealed he had been involved in an arson Question was whether or not the evidence could be used HELD: High Court Was voluntary, there was nothing that suggested that the confession was unreliable and also said police had not acted improperly… - Excluded under public policy discretion – impropriety related to the fact that the accused had on a number of occasions he wanted to exercise his right to silence and they had gone behind that     



(ii) where it would be unfair to the accused to admit (the Lee discretion)

 

focus is on the effect of the police conduct on the accused if accused has been unfairly treated it raises doubt on the reliability of the confession

(iii) Public Policy Discretion (the Bunning v Cross Discretion) where the confession was unlawfully, unfairly or improperly obtained see Discretions as well 

31



-

must balance conviction of criminals and procedural requirements that police must adhere to

.

Reliability of admissions

s84 - Court must be satisfied that the admission was made by the party's own volition volitio n and not under duress, threats, etc to anyone. Onus o n defendant to raise this issue i ssue under s189(3) (R v Zhang)

s85(2)- unless there is reason to believe that an admission is not truthful, it is admissible if made in presence of an investigating official (or person with similar power: Kelly )

s85(3) - The court must take into account the personal attributes (education, cognitive impairment, age, etc) of a person who makes an admission ( Moffat/McLaughlan) as well as the manner /nature of questioning, incentive or inducement off ered to make the admission

s88 - Before admitting any evidence of an admission, it is open to the court to find whether or not the admission was actually made by a person

s142 - evidence relating to admissions required to be proved on the balance of probabilities s135 (unfairly prej, waste of time, misleading), s137 (unfair prej: crim) s138 (illegally obtained) s90 - unfair to D (fairness discretion: Swaffield / Pavic )

Consciousness of guilt is NOT an admission; rather it is circumstantial evidence. Silence does not amount to a Consciousness of guilt unless the accused, by conduct or demeanour acknowledges truth of the statement ( Barca)

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TENDENCY - applies to Civil & Criminal cases

Tendency evidence (s97)  – evidence used to show that a person has or had a tendency to act in a particular way.

Step 1 - Determine Relevance 1. Would a trial judge regard the evidence (of ( of a person's conduct, character, reputation or  tendency ) as 'rationally' affecting the 'probability' of existence of a fact in issue? Consider: case of Makin: 

evidence could not be used to prove 'tendency' of killing children ( tendency purpose) => hence inadmissible



but evidence could be used to rebut defendant's claim of accidental death ( other 

 purpose) => hence prima facie admissible

2. s94(1): If the 'purpose' of adducing evidence is to only determine 'witness credibility' 

tendency rule inapplicable



hence cannot be used for 'tendency purpose': s95



BRS: BRS: cautious jury direction required (s165) to ensure evidence evidence only used for credibility 

3. s94(3): If the evidence is also being used for other facts in issue ( character / reputation /  conduct / another tendency ) 

tendency rule inapplicable



hence cannot be used for 'tendency purpose': s95



BRS v R: R: cautious jury direction required (s165- adults / s165A- children) to ensure evidence only used for character / reputation / conduct / another another tendency 

Step 2 - Significant Probative value - requires more than mere 'Relevance' 1. Does the court regard the evidence (by ( by itself or along with other adduced evidence) evidence ) to be of  significant probative value? 

Significant probative value is likely to be:

(Lock / Lockyer) - more than 'mere relevance' inferred in s55, but less than a 'substantial ' degree of relevance (per criminal cases like: Ellis / Pfennig) Pfennig )



(Lockyer) - evidence must be ' important ' or 'of consequence'

33



it MAY turn to the question of whether there is ' striking similarity ' (Boardman (Boardman)) in surrounding circumstances, behavioural pattern or modus o perandi



Persuasive strength of inference drawn from evidence of a person's conduct ( Jacara ( Jacara))



Regard should be had where evidence is being disputed ( Pfennig / Ellis) Ellis)



Less probative where the Defendant has no control over the circumstances (PNJ ( PNJ))



Likelihood and motives for Concoction or Contamination (Hoch ( Hoch / PNJ / AE )



Extraordinary circumstances: coincidence evidence used for tendency purpose (Straffen (Straffen))

( Zhang)) Step 3 - Notice requirements ( Zhang

1. Upon establishing relevance, ensure one of the following is met: a.

the party has given notice about their intention to lead 'tendency evidence': s99

OR b. the court has dispensed the notice requirements: s100

2. If notice requirement under s99 or s100 are not satisfied, evidence is inadmissible for its 'tendency purpose'. Caution with jury directions in such cases to ensure that such evidence is not led for 'tendency purpose' (BRS ( BRS v R) R)

3. Notice not required to contradict tendency evidence already adduced by other party: s97(2)

Step 4 - Probative value substantially outweighs  prejudicial effect 

(SKIP IF NOT CRIMINAL CASE)

1. To admit tendency evidence in criminal cases, s101 requires the probative value of evidence to substantially outweigh any prejudicial effect to the accused Meaning of ' substantially outweigh' its 'prejudicial effect': 

Common law (Pfennig (Pfennig)) test - "no " no rational explanation other than incrimination of accused "



s101(3) test (Ellis (Ellis - which may include the Pfennig test in some cases) - requires 'balancing exercise' for each case in its own merits. But generally, consider: o

Will jury directions sufficiently mitigate risk of unfair prejudice (R ( R v Cook  v Cook )

o

risk of jury misusing evidence in an unfair way (R ( R v BD / Papakosmas) Papakosmas )

o

evidence provokes some irrational, emotional or illogical response (Suteski  ( Suteski )

o

risk of jury overestimating probative value of evidence (Suteski  ( Suteski ) 34

o

is the evidence likely to influence the jury to make a wrong decision/conviction

o

risk of jury being too readily accepting of prosecution evidence (Papakosmas ( Papakosmas))

o

risk that evidence may cause a distraction from issues central to trial ( R v Watkins) Watkins)

Step 5 - s135 discretion (CIVIL PROCEEDINGS)

(R v Ngatikaura) Ngatikaura)

135. General discretion to exclude evidence The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might(a) be unfairly prejudicial to a party; or (b) be misleading or confusing; or (c) cause or result in undue waste of time.

Step 5 - s137 discretion (CRIMINAL PROCEEDINGS)

(R v Ngatikaura) Ngatikaura)

137. Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.

Result - EVIDENCE IS ADMISSIBLE TO PROVE TENDENCY

12.7





Habit

Where someone routinely adopts a mode of conduct  – and that on the facts they also adopted that mode must be more than merely evidence of isolated facts, high threshold needs to be established

Eichsteadt v Lahrs 





Civil action for damages arising out of the injury of a person who was on a bicycle at a notoriously dangerous intersection – he was hit by the defendant and was injured. Pl couldn’t remember the incident because of the injuries sustained and the plaintiff sought to lead evidence that the injured person habitually rode their pushbike to t he intersection and then dismounted and when it was safe to do so pushed their bike across the intersection  – Relevant to show that the injured person had not themselves contributed to the injury.

HELD: 

This was relevant therefore to the breach of the duty of care owed by the defendant to the  – wasn’t evidence of the incident that occurred on the day of the injury but was plaintiff  – evidence of a habit of the plaintiff from which the jury could infer that on the day of the 35

incident the plaintiff had in fact dismounted and taken the usual precautions when crossing the dangerous intersection

12.8 

 

Similar fact/propensity evidence Essentially proving that on occasions other than the occasion of the offence that is being investigated in the trial that the accused had done things of a criminal nature which demonstrate that the evidence should be admitted as c ircumstantial evidence of their guilt of  the particular offence This is extremely prejudicial and there are many strict rules that apply. Evidence of similar conduct on other occasions by the accused, sought to be adduced to prove the offence or certain civil conduct as the case may be, or some element thereof 

This is an assessment of whether the evidence is admissible or not  – not whether the discretion should be exercised.

Generally Evidence of prior convictions to show propensity to commit the crime charged/the disposition to commit the particular crime charged, is not admissible because of the severe prejudicial effect 

the jury will abuse the fact that the person has committed an offence on another occasion.

Exception Evidence is admissible where it is relevant to an issue: 



Identity through striking similarity of the behaviour in the past to the behaviour under investigation in the trial: Straffen Rebut accident or any other defence: Smith

Makin v AG  



Baby farming case M and his wife were charged with murdering a small infant who they had adopted for a small sum of money to take in and look after. The baby was discovered buried buried in the back yard. They admitted to burying it in the backyard but said that it was just a panicked/stupid reaction when the child died of natural causes. causes. They denied they killed the child however. The crown sought to lead evidence that on about 12 previous occasions M and his wife had taken home babies for sums of money and they had been found buried in other back yards. Lord Herschell propounded the fundamental limbs about this sort of evidence and its admissibility: o Evidence of prior convictions to show propensity to commit the crime charged/ the disposition to commit the particular crime charged, is not admissible because of the severe prejudicial effect – the jury will abuse the fact that the person has committed an offence on another occasion o Evidence is admissible where it is relevant to an issue Identity through striking similarity of the behaviour in the past to the  36



behaviour under investigation in the trial – Straffen Rebut accident or any other defence – Smith  The evidence of the other babies would allow the jury to reject the excuse of accident

Straffen Straffen was in jail for strangling young girls and leaving naked bodies on public display Escaped from jail Naked body of a naked girl was found in a park Q was whether, at the trial for her murder, whether the jury could hear evidence that he had already been convicted of crimes that were similar in nature HELD was admissible because the crimes were was so strikingly similar The evidence of the body was more in the nature of a hallmark/calling card    

 

Smith   

Mr Smith’s previous 2 wife’s had drowned in bath 3rd wife also drowned in bath evidence was admissible to rebut his defence o f accident

12.8.1 Australian approach prior to Pfennig



Similar fact evidence is admissible where probative force clearly transcends its prejudicial effect

Perry  



P poisoned her husband with cyanide and the Crown sought to lead evidence of other poisonings to prove the latest poisoning The HC determined that the probative force tr anscended the prejudicial effect

12.8.2 After Pfennig – the HCA

The evidence will be admissible if the trial judge concludes that on the whole of the evidence, the similar fact evidence, if accepted, bares no rational or reasonable explanation consistent with the innocence of the accused

 

Strict test given the horrendous prejudicial effect of such evidence Same test the jury has to apply to decide a case based on circumstantial evidence

37

Pfennig P was charged with the murder of a 10 year old boy The evidence was that he had spoken to the boy at the aquatic reserve in a remote area. He drove a Comby van and he kidnapped the child and murdered him and the body was never found. The evidence was that it was highly unlikely that the child had drowned accidentally and the body not discovered in the lake. P denied that he had killed the child. A piece of evidence that was purely circumstantial was that P had kidnapped another child of  similar age 12 months later in his Comby van, left the child’s bike next to a cliff (but no deceased child was found – suggesting that there had been an accident), raped the child, and the child escaped  – P was convicted of his abduction and rape. The Crown wanted to lead this evidence as a circumstantial piece of evidence from which the  jury could infer BRD BRD that P had murdered the child (i.e. (i.e. he hadn’t drowned). drowned). HELD: The HC propounded the test that: The evidence will be admissible if the trial judge concludes that on the whole of the evidence, the similar fact evidence if accepted, bares no rational or reasonable explanation consistent with the innocence of the accused  – if there was then the evidence is i s not admissible. If it gets admitted into evidence then the jury has to exclude all hypotheses consistent with innocence – here it was that the child had drowned and this had to be excluded using the circumstantial evidence. The HC, applying this test, found that the evidence of the kidnapping and rape of the second trial was admissible despite its prejudicial effect against P.   

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



12.8.4 Back to the HCA – Phillips v The Queen

The test is that from Pfennig – that is:

The evidence must have a specific connexion with the commission of the offence charged, a connexion that may arise from the evidence giving significant cogency to the prosecution case or some aspect of it.

ie so that the evidence has a special relevant so that its probative value outweighs its prejudice  – can be shown by a striking similarity, unity of  purpose

The judge should exclude the evidence if (seeing the evidence in the context of the prosecution case and assuming that the similar fact evidence would be accepted as true and that the prosecution case is accepted by the jury) there is a reasonable view of the similar fact evidence which is consistent with innocence.

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Phillips v The Queen The accused was charged with 8 counts of sexual offences including rape after complaints from 6 female teenagers The accusations were that the accused had digitally penetrated, raped and otherwise indecently assaulted girls at parties, at his hi s house, in sheds and at other people’s houses The offences against each girl were held together. The question for the jury was one of consent for some counts, and for other counts whether the acts as alleged actually occured The question was whether evidence as to how he went about being alone with the girls etc and whether other girls had consented to his advances was put forward as similar fact evidence by the prosecution Found guilty at trial Held by the HCA Consent is the mental state of the victim and so the mental state of one victim on the occasion she was with the accused could shed no light on the mental state of other girls at other times Evidence of consent to other sexual acts and consent to those with the accused showed only the ‘propensity’ of the complainants not of the accused Evidence that one person consented or did not is irrelevant to whether ot hers did Further in Pfennig it was said that the evidence must have a sufficient connexion to the charged – here all the evidence showed was that he was keen to have sexual intercourse and oral sex and that he approached girls about his own age sometimes after they had ingested drugs or alcohol – not particularly probative 

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12.9

Character

Summary Evidence of character, conduct, reputation will only be admissible if  1. Reasonable notice is given to the other party 2. S 55 requirements are met 3. The evidence has ‘significant probative value’ – s 97 4. Where the evidence in a criminal trial is tendered by the prosecution to be admissible the probative value must be outweighed substantially by the prejudicial effect to the accused – s 101. The latter section is a higher test than s 97. 5. Pt 3.6 takes a different approach to the common law. There are obstacles to admissibility if evidence is going to be used to prove tendency and coincidence. 6. If the evidence is used for another purpose outside of 97 and 98 then it may be led subject to 95 and 135/137.

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

If you can lead evidence of the good character of a person charged with a criminal offence then you have circumstantial evidence that will allow the jury to infer that in this case under investigation the accused didn’t commit the offence. The Crown however then has the t he right to bring evidence of the accused’s bad character.

12.9.1 Character evidence of the accused  

   

The character of the defendant, a party or an ordinary witness may be relevant to either their credibility as a witness or to establishing the facts in issue directly. Recall Rules for Witnesses other than the accused witnesses are limited to questioning in cross examination re credit: s20,21 can prove prior convictions under s16 as collateral issues victims of crime (special classes) have special rules which limit the extent their character can be questioned (eg sexual history)

12.9.2 Criminal cases: accused at common law  At common law, the accused may raise evidence of good character to:  

show not guilty, and/or establish their credit (ie no prior convictions)

Such evidence goes further than whether the defendant should be believed in their testimony: it is evidence that the defendant is not guilty.







may be raised during crown case (ie ask prosecution witnesses such as police) o ask police officer that “ isn’t the case that you have never called in X for  questioning before” during defence case (ie calling witnesses or testifying personally) o may speak only of the defendant’s general reputation cannot be raised by attacking the Crown witness

Once Accused Has Led Evidence of Good Character:  

 

the Crown can lead evidence of bad character IF the accused raises their own character evidence of bad character only goes to credit, not to proving guilt of the charge (judge must give direction) bad character is evidence of general reputation not specifics if good character evidence is led as part of the defence case, the Crown will require the Court’s leave to adduce evidence in rebuttal

12.9.3 Criminal cases:

15 Questioning a person charged in a criminal proceeding

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(1) Where in a criminal proceeding a person charged gives evidence, the person shall not be entitled to refuse to answer a question or produce a document or thing on the ground that to do so would tend to prove the commission by the person of the offence with which the person is there charged.

(2) Where in a criminal proceeding a person charged gives evidence, the person shall not be asked, and if asked shall not be required to answer, any question tending to show that the person has committed or been convicted of or been charged with any offence other than that with which the person is there charged, or is of bad character, unless —

Exceptions

15(2)(a) the question is directed to showing a matter of which the proof is admissible evidence to show that the person is guilty of the offence with which the person is there charged; 

 

The question is directed to showing that the person is guilty of the offence with which the person is there charged: s15(2)(a) eg similar fact evidence once o nce admitted under Pfennig – then they can be x-examed on it Needs court’s permission to ask this question, the application for which must be done in absence of the jury: s15(3) and (4)

15(2)(b) the question is directed to showing a matter of which the proof is admissible evidence to show that any other person charged in that criminal proceeding is not guilty of the offence with which that other person is there charged; 





The question is directed to show that a co-accused is not guilty of the offence charged: s15(2)(b) In this case, counsel for the co accused is permitted to ask questions not withstanding that they dwell on bad character and previous convictions of the accused to whom they are being put, as long as they fall within the rules of admissibility of evidence Needs court’s permission to ask this question, the application for which must be done in absence of the jury: s15(3) and (4)

15(2)(c) the person has personally or by counsel asked questions of any witness with a view to

establishing the person’s own good character, or has given evidence of t he person’s good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or of any witness for the prosecution or of any other person charged in that criminal proceeding; 



Where accused raises good character or where accused casts imputations of crown witnesses or the co accused: s15(2)(c)  – extends common law Will be allowed to cross examine on bad character or prior convictions

41

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



Imputations: means more than just denial or even though a denial might mean the crown witness is lying – not sufficient for casting imputations. Must be an express attack: Phillips Result of cross examination is that it is not direct evidence of guilt, rather only affects credibility Needs court’s permission to ask this question, the application for which must be done in absence of the jury: s15(3) and (4)

Phillips Accused charged with breaking and entering with intent to commit a crime and rape. Accused gave evidence that the victim had asked him on previous occasions to get marijuana for her and had smoked marijuana with the accused as well. The victim when she gave evidence denied these allegations. allegations. Crown sought and obtained leave to question the accused concerning co ncerning previous convictions involving dishonesty. The accused was convicted, and appealed to the High Court from the Supreme Court of Qld on the ground that the trial judge wrongly allowed this cross-examination. HELD - Appeal dismissed. s.15(2)(c) applicable - accused had cast imputations on the character of Crown witness. Therefore Crown entitled to cross examine re accused’s bad character, subject to the court’s leave. Factors which a trial judge should take into account when considering whether or not to exercise the discretion to disallow the cr oss examination are, inter alia: alia: The legislative intention that the introduction of an accused’s prior convictions is exceptional; How probative are the prior convictions going to be to the Cr own’s case, especially when considering that they will only be relevant to credit? How prejudicial are the previous convictions going to be to the accused? How important to the defence case c ase is it that the imputation of the Crown witness be made? (ie. is it just gratuitous mudslinging?) Prejudice to the Crown case because of the imputation of the Crown witness? Timing – How fair is it in all of the circumstances to question the accused about criminal history at that time in the trial? (eg. just before the jury goes out, which which is a crucial time). Application: Here it was important to the Crown’s case that the jury believe the woman on the issue of  consent, and the imputations made by the accused would seriously reflect on her credit (ie. that she had smoked marijuana with the accused, and had asked him to obtain marijuana for her). Therefore the trial judge correctly correctly allowed the cross examination re the offences of  dishonesty. NOTE: BOB THINKS THIS CASE IS A LITTLE DODGY IN ITS REASONING IN THAT THE COURT ALLOWED THE CONVICTION TO STAND AND THE CROSS-EXAMINATION WAS HELD TO BE OK 

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15(2)(d) the person has given evidence against any other person charged in that criminal proceeding.  

Where accused gives evidence against co-accused: s15(2)(d) Result of cross examination is that it is not direct evidence of guilt, rather only affects credibility

12.9.4 Before asking questions based on exceptions – must obtain leave

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The granting of permission will depend on the interests of justice: Phillips v R

Factors to consider in exercising the discretion:    

are imputations gratuitous or necessary part of defence  – if necessary, cannot x-exam did imputation damage witness credibility and R case  – if yes, x-exam do questions to the accused go beyond credibility and have prejudicial effect  – if yes, x-exam weigh up damage to R case as against damage to the accused  –

GO TO s53/54 TO PROVE IT

12.9.5 Witnesses in criminal cases (other than the defendant) and witnesses in civil cases





s16 QEA provides that evidence of previous convictions of a witness are admissible on the issue of their credit, subject to s15A. If denied such convictions may be proved  – s54 Other than this, the general character of an ordinary witness is seldom regarded as sufficiently relevant to their credibility at court. There is an old common law rule whereby a witness can testify that, based on their knowledge of the general bad character of an earlier witness, they would not believe the evidence of that witness. Obviously the rule has the potential to become burdensome and it has fallen into disuse.

15A Questioning of witness as to certain convictions A witness in any criminal or civil proceeding shall not be asked and if asked shall not be required to answer any question tending to show that the witness has committed or been convicted of or been charged with any offence if, where the witness has been convicted of the offence — (a) the conviction is one in relation to which a rehabilitation period is capable of running pursuant to the Criminal Law (Rehabilitation of Offenders) Act 1986; 1986; and (b) in relation to the conviction the rehabilitation period within the meaning of that Act is not running at the time of the criminal or civil proceeding; unless the permission of the court to ask the question has first been obtained, such permission to be applied for in a trial by jury in the absence of the jury.

16 Witness may be questioned as to previous conviction Subject to this Act, a witness may be questioned as to whether the witness has been convicted of  any indictable or other offence and upon being so questioned, if the witness either denies the fact or refuses to answer, it shall be lawful for the party so questioning to prove such conviction.

12.9.6 Proving convictions – s53 and s54

53 Proof of judicial proceedings p roceedings

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(1) Where it is sought to prove any of the following matters — (a) a judgment, decree, rule, conviction, acquittal, sentence or other order, process, act or decision of any court; (b) an affidavit, pleading, will, codicil, indictment or other legal document filed, deposited or presented in any court; (c) the pendency or existence at any time before any court of any proceeding; evidence of such matter and, as the case may be, of any particulars relating thereto may be given by the production of — (d) the original of the order, process, act, decision or document; or (e) a document proved to be an examined copy of the order, process, act, decision or document; or (f) a document purporting to be a copy of the order, process, act, decision or document and to be sealed with the seal of the court; or (g) a certificate showing such matter and such particulars and purporting to be under the hand of — (i) a registrar of the court; or (ii) a person having the custody of the records or documents of the court; or (iii) any other proper officer of the court; or (iv) a deputy of such registrar, person or officer. (2) In this section—

court means any court of Queensland, of the Commonwealth or of any other State or Territory.

54 Proof of identity of a person convicted (1) An affidavit purporting to be made by a fingerprint expert who is a member of the police force of  Queensland or of the Commonwealth or of any other State or Territory and in the approved form shall be admissible in evidence for the purpose of proving the identity of any person alleged to have been convicted in Queensland, in the Commonwealth or in the other S tate or Territory of any offence. (2) Any such affidavit shall be evidence that the person, a copy of whose fingerprints is exhibited to such affidavit— (a) is the person who, in any document exhibited to such affidavit and purporting to be a certificate of conviction or certified copy of such conviction, is referred to as having been convicted; and 44

(IMPROBABLE) (IMPROBABLE) COINCIDENCE - applies to Civil & Criminal cases 'Improbable Coincidence' evidence (s98)  – evidence used to prove that two or o r more events must be related, because of the improbability of the events occurring co incidentally

Step 1 - Determine Relevance 1. Would a trial judge regard evidence of improbable coincidence of occurrences of 2 or more related events as 'rationally' affecting the 'probability' of whether a party did a particular act or had a particular state of mind? Points to consider: consider: 

Are the similarity in circumstances or events beyond the defendant's control and hence are not 'relevant similarities' (PNJ (PNJ / Sutton). Sutton). Without 'relevant similarities' evidence is pure 'tendency' evidence => hence inadmissible for its improbable coincidence purpose.



Makin: evidence could be used to prove improbable coincidence of killing children (improbable coincidence purpose) hence prima facie admissible. Evidence could be used to rebut defendant's claim of accidental death ( other purpose) => hence prima

facie admissible 

improbable coincidence used to prove identity: Sutton / Pfennig

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improbable coincidence used to prove intent: Makin/ Perry 



improbable coincidence to prove reliability of witness statements: Boardman / Hoch

2. s94(1): If the 'purpose' of adducing evidence is to only determine 'witness credibility' 

coincidence rule inapplicable



purpose': s95 hence cannot be used for 'improbable coincidence purpose':



BRS v R: R: cautious jury direction required to ensure ensure evidence only used for credibility 

3. s94(3): If the evidence is also being used for other facts in issue ( character / reputation /  conduct / tendency ) 

tendency rule inapplicable



purpose': s95 hence cannot be used for 'improbable coincidence purpose':



BRS v R: R: cautious jury direction required to ensure evidence only used for character /  reputation / conduct / tendency 

Step 2 - Significant Probative value - requires more than mere 'Relevance' 1. Does the court regard the evidence (by ( by itself or along with other adduced evidence) evidence ) to be of  significant probative value?

Significant probative value is likely to be:

45



(Lock / Lockyer) - more than 'mere relevance' inferred in s55, but less than a 'substantial ' degree of relevance (per criminal cases like: Ellis / Pfennig) Pfennig )



(Lockyer) - evidence must be ' important ' or 'of consequence'



Touchstone for improbable coincidence is similarity (PNJ (PNJ). ). Unlike tendency, there must be a 'striking similarity ' (Boardman (Boardman)) in events events or circumstances, conduct, behavioural pattern or modus operandi



Alleged similarities must not be stated too generally (Pfennig ( Pfennig))

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Persuasive strength of inference drawn from evidence of a person's conduct ( Jacara ( Jacara))



Regard should be had where evidence is being disputed ( Pfennig / Ellis) Ellis)



Less probative where the Defendant has no control over the circumstances (PNJ ( PNJ))



Likelihood and motives for Concoction or Contamination (Hoch ( Hoch / PNJ / AE )



Extraordinary circumstances: coincidence evidence used for tendency purpose (Straffen) Straffen)

Step 3 - Notice requirements ( Zhang ( Zhang)) 1. Upon establishing relevance, ensure one of the following is met: a.

the party has given notice about their intention to lead 'tendency evidence': s99

OR b. the court has dispensed the notice requirements: s100

2. If notice requirement under s99 or s100 are not satisfied, evidence is inadmissible for its 'tendency purpose'. Caution with jury directions in such cases to ensure that such evidence is not led for 'tendency purpose' (BRS ( BRS v R) R)

3. Notice not required to contradict tendency evidence already adduced by other party: s98(2)

Step 4 - Probative value substantially outweighs  prejudicial effect 

(SKIP IF NOT CRIMINAL CASE)

1. To admit tendency evidence in criminal cases, s101 requires the probative value of evidence to substantially outweigh any prejudicial effect to the accused Meaning of ' substantially outweigh' its 'prejudicial effect': 

Common law (Pfennig (Pfennig)) test - "no " no rational explanation other than incrimination of accused "

46



s101(4) test (Ellis (Ellis - which may include the Pfennig test in some cases) - requires 'balancing exercise' for each case in its own merits. But generally, consider: o

Will jury directions sufficiently mitigate risk of unfair prejudice (R ( R v Cook  v Cook )

o

risk of jury misusing evidence in an unfair way (R ( R v BD / Papakosmas) Papakosmas )

o

evidence provokes some irrational, emotional or illogical response (Suteski  (Suteski )

o

risk of jury overestimating probative value of evidence (Suteski  ( Suteski )

o

is the evidence likely to influence the jury to make a wrong decision/conviction

o

risk of jury being too readily accepting of prosecution evidence (Papakosmas ( Papakosmas))

o

risk that evidence may cause a distraction from issues central to trial ( R v Watkins) Watkins)

Step 5 - s135 discretion

(R v Ngatikaura) Ngatikaura)

135. General discretion to exclude evidence The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might(a) be unfairly prejudicial to a party; or (b) be misleading or confusing; or (c) cause or result in undue waste of time.

Step 5 - s137 discretion (CRIMINAL PROCEEDINGS)

(R v Ngatikaura) Ngatikaura)

137. Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.

EVIDENCE ADMISSIBLE TO PROVE ACT OR STATE OF MIND BASED ON IMPROBABLE COINCIDENCE

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CHARACTER & CREDIBILITY para 19 of  Adam  Adam where Gleeson CJ, McHugh, Kirby and Hayne JJ held:

What is important, however, is that, under the Act, evidence of a witness’s prior inconsistent statements will be admitte as evidence of the truth of what was said

in them if the evidence is relevant for another purpose …

Character of Witness

Credit of a person refers to whether they should be believed on oath. Character evidence is often used to impugn credit and ‘good’ or ‘bad’ character may be proved by: 

prior convictions;  past behaviour / person's general reputation; r eputation;  personal opinion of witnesses; or

Using character evidence depends on number of factors including: 

Is it relevant to facts in issue and/or credit?  Is it evidence of good character or bad character?  Is it the character of a witness or the accused?  Does it relate to special class of witness; e.g. sexual offence complainants? complainants?

s 101A defines credibility evidence while s 102 creates the rule that “credibility evidence

about a witness is not admissible”. S 108 C does give an exception to this rule in relation to expert evidence related to a witness’s credibility S 103 allows this type of evidence to be adduced in cross-examination if it can satisfy 103(1). In a nutshell Part 3.7 requirements do not apply not apply if the evidence is relevant not only because it affects credibility but is also relevant to another purpose. If the latter holds true t hen the evidence may be then used to affect the witness credibility even if Part 3.7 applied. S 103 is an exception to the rule, or puts limits on cross examination to credit where the

evidence adduced has “substantial probative value”. This means the evi dence could rationally affect the assessment of the witness’s credit. [5] In other words if s 102 makes credibility evidence about a witness prima facie inadmissible s 103 says it may be adduced in

cross examination if the evidence “could rationally affect the assessment of the credibility of  the witness”. In effect then if the evidence looks like it would have a persuasive impact on the reliability of a witness or his or her he r testimony then the test would be satisfied. 48

In Palmer v The Queen (1998) 193 CLR 1, a case not decided in reference to the EA, the High Court held if evidence is adduced to go to the credibility of a witness (in this case the complainant) then there were 2 rules to follow: evidence regarding collateral facts such as credit is final; and secondly the “bolster rule” applied. The latter means that evidence will

not be admissible if it merely ‘bolsters’ a witness’s credibility. The court went on to discuss the distinction between evidence relevant to a fact in issue and evidence relevant to credit. McHugh went on to say that in regards to the distinction between the two the reality is that it goes to a case management focus and is designed to confine court processes to facts with real probative value.

[6] In Nicholls v The Queen (2005) 219 CLR 196 the court discussed the rationale for what is

called the ‘collateral evidence rule’. Remember at the start of this lecture I said that Gans and Palmer refer to it as ‘ancillary’? McHugh J said there are 2 tests for determining d etermining whether a matter is collateral. One is done by reference to issues where evidence may not be tendered such as in examination e xamination in chief 

while the other defines ‘collateral’ as going to credit. So issues of credibility are collateral ones. He also adds that it is not easy to distinguish between issues relevant to credit and those relevant to facts in issue. Ultimately the court held the decision in Palmer unhelpful. Palmer unhelpful.

[7] Following on from Nicholls the NSW Supreme Court in R v RPS [1997] NSWSC 305 the  judicial role in s 103 was was discussed. In this case case it was made clear clear that s 103 limits limits cross

examination of credit issues to adducing evidence that has ‘substantial probative value’. Credibility evidence can include cross examination on memory, perception of events, bias, untruthfulness and inconsistent statements. If a question though goes to a general honesty of a witness then care is needed. S 103(2) makes clear that evidence relating to general honesty is only adduced in cross examination where such questions would have a real affect

on the likelihood of the witness’s truthfulness. So, we could have situations where a person has prior convictions for something. If so, the issue then is whether such evidence h ad

‘substantial probative value’. Further, if it was a case where a sexual co mplainant had a

49

‘history’, that type of evidence would not arguably have any bearing on credibility as it most likely would not have a substantial probative value.

[8] Section 104 applies to credibility evidence as described in s 10 1A. Section 104 actually provides for further limitations on top of 102 and 103. When a defendant is cross examined in criminal proceedings leave must be sought and obtained (unless obtained  (unless the matters fall within s 104(3));

-

Where leave is required, it cannot be given to the prosecutor to cross examine unless the matters falls within s 104(4);

-

Where leave is required it cannot be given to another defendant for cross examination unless the matters fall within s 104(6).

Remember please, s 104 goes to credibility evidence as defined in s 101A. S 104 (4) and (5) focus on truthfulness and is explained succinctly in the ALRC 26, Vol 1 where the commission said: The accused should receive special consideration from the dangers associated with the admission of character evidence used to attack credibility. The need for such evidence is likely to be small. Put differently, its incremental probative value is low. Section 106 goes to rebuttals of evidence and allows an opposing party to prove a witness has done something to affect his/her credibility. This section repeats the common law finality rule.

[9] The witness must first put the substance of the evidence to a witness in cross examination so it still must meet the s 103 requirements. S 103 has a higher threshold of  admissibility than that at common law. S 103(2) lists 2 matters that must be considered

before deciding whether the evidence can substantially affect the assessment of a witness’s credibility. So evidence admitted under s 106 MUST satisfy s 103  – cross examination is the precondition to admissibility. Admissibility under s 103 also can attract ss 135-137. Section 106 goes to prior convictions, prior inconsistent statements, making previous false representations and to capacity. Please note s 106 (2) (c) is based on the common law exception to collateral rule. The same exception is also contained in 106 (2) (b) in relation to 50

prior offences. These both only apply if the cross examiner has been given permission to cross examine under s 103. What about re-establishing credibility? Section 108 Gans and Palmer state that s 39 limits the potential broad nature of 108 so that 108 allows credibility evidence only if they have been dealt with in cross examination. A prior inconsistent statement is yet another exception to the rule. Note though that 103 creates 2 exceptions. The first applies to a prior inconsistent statement used to impeach credibility and allows a prior consistency one to re -establish credibility.

[10] The importance of 108 (3) though is interesting. It provides that a prior con sistent

statement to rebut allegations of ‘recent invention’ can be adduced. Another important aspect to this Part of the Act is found in s 108 (3) which allows evidence to be adduced of a prior consistent statement IF the court gives leave. This is an exercise of  a discretion that fundamentally goes to relevance of the statement. S 108 (C) goes to the admissibility of expert opinion relating to credibility and creates yet another exception to the credibility rule. Such evidence has to satisfy Part 3.3 (opi nion

rules). Do note that the capacity to affect the assessment of a witness’s credibility means this section is pulled into line with s 103 and 108A. The s 108 C reads like 79 (2) … expert opinion.

[11] Re-examination of a witness under this section is also subject to the requirements of s 39 and will be overall ove rall subject to ss 135-137. Under s 108(1) leave is not required unlike s 108

(3). It’ s an important difference. It used to be though that evidence of a prior statement had to be adduced through s 108(3 ) … this is not the case. statement’ is admitted, S 108 (3)(a) states indicates that if evidence of a ‘prior inconsistent statement’

leave may be given to adduce evidence of a previous consistent statement. S 108 (3)(b) says that evidence of a prior consistent statement will not be excluded by the credibility rule in s 102 if:

51

(1) It is or will be suggested either expressly or by implication that evidence given by the witness: (a) Has been fabricated; or (b) Has been reconstructed, whether deliberately or otherwise; or (c) Is the result of suggestion; and (2) The court gives leave to adduce the evidence.

[12] See Graham v The Queen (1998) 195 CLR 606 where the HC held that there were two matters to keep in mind when looking at permission to adduce prior consistent statements. The first is that s 108 creates an exception to the credibility rule. Secondly, we have to identify how the evidence relates to its statutory foundation for admissibility. In other words, if admitted, does it then become evidence of the truth of what is asserted? Either way, it is not relevant to the exercise e xercise of discretion to give leave under s 108 because this

depends on a witness’s credibility. One interesting area of credibility evidence is found in cases of delay in sexual complaint

c omplainant’s credibility and matters. Delay, whether present or not, is not relevant to a complainant’s the adducing of such evidence will probably attract a s 165 warning.

Admissibility of evidence such as ‘fresh complaint’ in relation to sexual assault cases under statute differs from that of the common law. This type of evidence usually goe s to hearsay and can often be admitted under one of the hearsay exceptions. It is not evidence that goes to credibility and so s 102 has no relevance. It can possibly be used though for a non he arsay purpose and therefore lead to a hearsay purpose and then be available for credibility purposes. However, it is always then subject to exercise of discretions.

If evidence is relevant because it affects a person’s credibility AND it is also relevant for another purpose it is not then credibility evidence.

Character of Accused - CRIMINAL CASES ONLY (s109)

s110(1) - The hearsay / opinion / tendency / coincidence and credibility rules do not apply to evidence adduced by an accused to prove their good character

52

Accused can lead good character evidence by: 

calling witnesses,



personally giving evidence (i.e. coming to the witness box - sign of good faith) faith )



cross-examining prosecution witnesses

Danger of leading good character evidence via s110(1) above s110(2) & s110(3) - The prosecution can lead evidence to rebut the accused's good character (or generally prove the accused is not of good character) without worrying about the application of  hearsay / opinion / tendency /coincidence / credibility rules in respect of any such evidence to be led by the prosecution (provided the rebuttal is for the same level of generality/particularity) Although no leave is required, the court may consider discretion to exclude such evidence where

( TKWJ v R) R) unfair prejudicial effect outweighs its probative force: s135 / s137 (TKWJ

Credibility Evidence

s101A - defines 'credibility evidence' as evidence that is relevant only because it affects a witness's credibility  (and may sometimes also affect the credibility of other evidence that is rendered inadmissible due to hearsay or tendency/coincidence rules).

s102 - 'credibility evidence' about witnesses is prima facie inadmissible (subject to exceptions)

s103 - is an exception to the rule in s102 and allows the prosecution to damage witness credibility by introducing a prior inconsistent statement to challenge their testimony (during cross-examination).

Although s103 does not require leave, it requires persuasive arguments which will 'substantially' impact the witness's credibility, such as by showing (non-exhaustively  ( non-exhaustively ): ):

s103(2)(a) - witness knowingly/recklessly made false representations when obliged to t ell truth s103(2)(b) - significant amount of time elapsed since the occurrence of relevant incident/event

In such situations (subject to leave) s108(3) may permit a witness to use their prior consistent statement: (a) to re-establish their credibility; or

53

(b) in attempt to invalidate any express or implied allegations of them fabricating / reconstructing their testimony

Finality principle - Generally, the cross examiner is bound by answers given in respect of questions that solely relate to credibility and cannot later lead contradictory evidence.

s106(1) - If during cross examination a witness denies facts/assertions relating to their credibility, then depending on nature/importance of fact/assertion denied, party wanting to lead evidence to

principle) rebut such denial may be granted leave. (s106 is an exception to the finality principle)

s106(2) - But LEAVE IS NOT REQUIRED where evidence is being led to show witness: (f) has motive for being biased or untruthful, (g) was convicted of an offence (h) has made prior inconsistent statements (i) was unable/unlikely to have knowledge of details/matters given as evidence (j) knowingly/recklessly made false representations when obliged to tell truth Prosecution Delays in CRIMINAL CASES 

s165B - Where the defendant (makes ( makes application and ) satisfies the Court that prosecution delay causes defendant to suffer significant forensic disadvantage, the court must inform jury about: 

the nature of that disadvantage AND



need to take that disadvantage into account when considering the evidence ( Longman, Crofts, Tully ). ).



s61(1)(b) - Crimes Act 1958 Act 1958 (Vic) - jury directions about complainant's delay in reporting sexual offences committed against them 

there may be good reasons why complainants delay/hesitate to report sexual offences against them

  judge shouldn't normally infer that evidence is less credible due to delay (cf Graham (cf Graham v R) R)

CHARACTER OF ACCUSED - (CRIMINAL CASES ONLY) Part 2

- Other dangers for the Accused under s110

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19

20

s112 - Where the accused chooses to give sworn evidence, then (subject to leave: Stanoevski ) they open themselves to being cross-examined (about their character) by the prosecution. Subject to certain restrictions, s27 operates to permit cross examining the accused about other aspects of the case o nce they come in the witness box.

Hurdles for prosecution While the LEAVE requirement in s112 protects accused from cross-examination about ' Character',

s104(2) protects them from being cross-examined about 'Credibility' by also requiring LEAVE.

However, under s104(3) the prosecutor does not need leave to try to prove that the Accused: (a) has motive for being biased or untruthful, (b) can't be aware or recall certain matters relating to their testimony (c) has made prior inconsistent statements

s104(4) - Court must only grant leave where the accused gives evidence — (a) suggesting that the prosecution's witness has a tendency of being untruthful; AND

(b) solely or primarily relevant to the witness's credibility.

s104(6) - The Court must not grant leave to a co-accused (who wants to cross-examine the accused) unless: (a) the accused gave adverse evidence against the co-accused, AND (b) the adverse evidence against the co-accused has been admitted

s111(1) - The hearsay and tendency rules don't apply to opinions about a defendant's character given by a co-accused/co-defendant who has specialized/expert knowledge (based on study, training or experience) and their opinion is wholly based on such knowledge (Lowery (Lowery v R) R)

19

Volition of the Accused to come to witness box as prosecution can't call them to give evidence-in-chief: s17

20

NB: Privilege against self-incrimination not available to the Accused: s128(10)

55

DISCRETION S135 provides for a general discretion, in criminal and civil trials, to exclude evidence. This differs from the common law situation in civil matters where no discretion is available to admit evidence which is prejudicial and outweighs any probative value. One case you are familiar with by now is Papkosmas v The Queen (1999) 196 CLR 298 which

will give you a sound grounding in exactly how the fact of ‘relevance’ operates – and its importance. Everything flows from the foundation question of relevance. Rv Lisoff  [1999] NSWCCA 364 the court said in a criminal proceeding s137 requires the court to refuse evidence adduced by the prosecutor if the probative value is outweighed by the prejudicial effect. It is not sufficient to say the complexity or nature of the evidence was such that created the mere possibility that the jury could act in a particular way.

S135 says the 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 or be misleading or confusing. [The basic proposition is relevance because if it is not relevant it is not admissible. Everything relevant goes in. Then we have the rules of admissibility (or the the concept of 

hearsay issue are the discretions discretions 135,6,7,8  admissibility – hearsay etc) and  part of the hearsay which can take out the evidence or limit it ] Papokosmas v Queen (1999) 196 CLR 297

the court stated that “evidence is not unfairly prejudicial merely because bec ause it makes it more likely the D will be convicted”. R v Clark (2001) Clark (2001) NSWCCA 494

adverse to the D’s interests interests does not where you will see that just because evidence is adverse necessarily mean it is unfairly so. Adverse does not mean legally unfair. In this case Clark was tried on a count of the murder of Kay Locke. The prosecution adduced evidence of a

‘relationship’ through witness testimony. The line of questioning was arguably unfairly prejudicial. On appeal Heydon JA discussed the appellant’s claim that the Trial Judge did not turn his mind to ss 135-137. Clark wanted the evidence excluded under s 135 but Heydon

56

made clear that it was not misleading, confusing or time wasting. It was though adverse to

Clark’s interests but not unfairly so. Clark then said the witness’s evidence was significantly prejudicial. The court c ourt responded by saying that the witnesses who had made the statements were available for cross examination so that argument did not stand up. The court went on to say: The deceased was not there for cross examination, but if the impossibility of challenging the veracity of hearsay statements by non-witnesses were generally to justify, or were often to

be a significant factor in justifying, a decision to exclude evidence in the court’s discretion under s 135 or by reason of a finding of “unfair” prejudice under s 137, the result would be to write the hearsay exceptions out of the Act to a large extent. The outcome would be contrary to the legislative intention.

It is clear that the unfair prejudice is not just referenced to the Crown’s case but to the fact a jury may misuse it in some way. Please note too that the trial judge did make correct conclusions under s 135 which of course then precluded any application of  s 137.

S137  In R v Shamouil [2006] Shamouil  [2006] NSWCCA 112 the NSW court took a very restrictive approach compared to that found in Papakosmas in relation to the assessment of the probative value and whether it should be determined on relevance or whether the court should consider credibility and reliability of the evidence. In other words, does the assessment of a probative value allow an assessment of credibility and reliability as well? In Papakosmas it was suggested that assessment of probative value will include aspects of reliability. In fact McHugh suggested that considerations of s 55 naturally would take into account reliability In my opinion, in taking this approach to the assessment of the probative value of the evidence his Honour fell into the error referred to in Shamouil. He took into account the reliability of the evidence, and the credibility or  reliability of the witnesses through whom, it was proposed, the evidence would be given. As was pointed out in Shamouil  this trespassed upon the  function of the jury  jury 

57

NSW approach is different and in Shamouil it Shamouil it was made quite clear that a restrictive approach was favoured. In fact in Mundine Simpson J made it clear that for s137 the assessment of a probative value was not to take into account an evaluation of reliability.

Now, s138 relates to improperly or illegally obtained evidence. Evidence that is obtained illegally or improperly can still be admissible. S 138 changes the common law approach found in Bunning v Cross (1978) 141 CLR 54. There is a large public interest component to the exercise of this discretion. [13] The onus of proof is changed by s 138 from that of the common law. When discussing or analyzing this section of the Act you must refer also to the common law cases. The approach to be taken when assessing whether illegally or improperly obtained evidence should be admitted and what warnings its use should attract can be found in Parker v Comptroller-General of Customs (2009) [2009] HCA 7 where it is clear that there are 2 steps in exercising the power contained in s 138. First, ascertain whether the evidence in question is in fact illegally/improperly obtained; and then despite the conclusion that it is, consider the desirability of its inclusion. The wording of the section makes clear how this is achieved. It is clear that the unfair prejudice is not just r eferenced to the Crown’s case but to the fact a jury may misuse it in some way. Please note too that the trial judge did make correct conclusions under s 135 which of course then precluded any application of  s 137.

S 138(1) goes to evidence improperly obtained and in Ridgeway v R (1995) 184 CLR 19, the court made clear that the discretion here can be used for both an inference of guilt and direct evidence of guilt thus extending the ambit of the exclusionary rule to things prior to a commission of a crime.

S 138 relates to improperly or illegally obtained evidence. Evidence that is obtained illegally or improperly can still be admissible In Swaffield;Pavic the court held that the absence of a caution (the right to silence, to say or not say) triggered the exercise of a discretion to exclude evidence but do es not mean it has to be excluded. 58

There is also a close relationship between s 138 and s 90 Swaffield and Swaffield and Em and the judicial comments in these cases, particularly Em where the HC suggested that s 90 considerations should be examined after those contained in s 138. It is in the area of admissions that the relationship between the 2 provisions is quite interesting.

Pages 346-347 Gans and Palmer list the propositions concerning the admissibility of covertly recorded conversations. These propositions come from R v Swaffield; Pavic v The Queen and many cases following are found in Pavitt v The Queen [2007] NSWCCA 88.

59

PRIVILEGE The scope of the privilege is found in ss117-119 plus a few exceptions (121-126). The communication or document must be confidential and made by someone or for someone with the purpose (express or implied) of confidentiality. [5] It is the timing of when the document was prepared that is important. So, if the document was prepared under an obligation of confidentiality then it is privileged. it is sufficient if either person making the communication, or someone to whom it is made or for whom it is prepared, is under a confidential obligation. To determine this, look at the surrounding circumstances of the matter. The position of whether the privilege extends to communication in the presence of third parties is interesting and more complex. In Baker v Campbell we Campbell we find discussion of  the dominant purpose test as found in the common law. This is mirrored in the EA (NSW). So start with identifying the privilege, then look for exceptions if any and then turn to case law for interpretation assistance. Communication privilege will attach if a document is made or prepared for the purpose of giving legal advice to a client.

Self-incrimination

s 132 – If it appears to a court that a witness will make claim of privilege, must make witness aware of obligations. 

s 187 – Corporations can’t claim privilege.



s 131A – Privilege can only be invoked when witness giving evidence in court.

s 128(1) – Applies if witness objects to giving evidence that may tend to prove witness has committed an offence, or liable for a civil penalty. 

(2) Court decides if there are reasonable grounds for objection.



(3) If reasonable grounds: o

(a) Witness’s choice to give evidence. 

NOTE: If witness gives evidence waives right to privilege! Must answer all

questions relevant to ‘facts in issue’ in proceeding (10) 

o

Includes circumstantial evidence (R (R v Cornwell )

(b) Court requires witness to give evidence if interests of justice require it (N/A to foreign law). 

Examples: importance of evidence to case, nature o f charges, interests of  60

witness to own trial (if applicable), adequacy of certificate immunity, reliability of material evidence, interests of accused in obtaining fair trial (R ( R v Lodhi ). ).

Client Legal Baker v Campbell [1983] Campbell [1983] 153 CLR 52 where the High Court considered the question whether client legal privilege extended to pre-trial procedures such as discovery orders and warrants. At common law it was the case that the privilege applied to pre-trial and the adducing of evidence at trial. However, the Evidence Act was interpreted in Esso Australia Resources Ltd v Commissioner of  Taxation (1999) 201 CLR 49 as applying to evidence adduced at trial only. This meant CLP was governed by the common law for pre-trial matters and the Evidence Act governed adducing the evidence. Not a particularly useful division. Section 131A was introduced to remedy this and now CLP is extended to pre-trial proceedings and procedures. Other sections of the EA relevant to privilege are s 132 which imposes obligations on the court with respect to the privileges under Part 3.10, while s 134 goes to when privileged evidence is admitted. Section 132 says: if it appears to the court that a witness or a party may have grounds for making an application or objection under a provision of this Part, the court must satisfy itself (if there is a jury, in the absence of the jury) that the witness or party is aware of the effect of t hat provision. Then, if despite this section the evidence is admitted then s 134 says the court should disregard the privileged evidence wrongly adduced. There are therefore 2 steps here. One, there is the imposed obligation to ensure the witness is informed of his/her rights and then, where evidence is given when it should not be, that it is inadmissible. If document is copied for the dominant purpose set out in s 118 and s 119. In Commissioner   Australian Federal Police v Propend Finance Propend Finance Ltd (1997) Ltd (1997) 188 CLR the court made clear that a copy of  an unprivileged document can become privileged it was copied for the dominant purpose. An unprivileged original document though does not become privileged because the copied one has become privileged.

Legal Advice (s 118) S 118 refers to ‘legal advice privilege’ which applies to (a) Confidential communication between client and lawyer;

61

(b) Confidential communication between 2 or more lawyers acting for a client; and (c) Contents of a confidential document prepared by client, lawyer or another person. To attract the privilege the document must have been prepared for the dominant purpose of  providing legal - advice to the client. In Pratt Holdings (2004) FCAFC 122, referring to Esso Australia Resources Ltd v Commissioner of  Taxation (1999) 201 CLR 49, Finn J stated that if a person person prepares and makes makes a document to a legal adviser, legal professional privilege attaches if the purpose for creation has been to get legal advice.

Pratt Holdings got advice from a solicitor’s firm (ABL) abou t its restructuring program and any tax implications. ABL told Pratt to get a valuation from someone independent and they did so. They got one from Price Waterhouse, telling them why it was needed. PW gave the valuation to Pratt Holdings and not ABL and Pr att then sent it on to ABL. If the reports had been prepared by Pratt’s inhouse accountants it would have been privileged. If Pratt had insisted PW send the report immediately to ABL, PW would have been considered an agent and it would have been privileged.



Use if attaching privilege to pure legal advice.



Invoked if evidence would disclose:



o

(a) Confidential communication between client and lawyer; or

o

(b) Confidential communication between client’s lawyers; or

o

(c) Contents of confidential document prepared by client/lawyer/another person.

Definitions (s 117): o

‘Confidential communication’ – Where person made it/person to whom made under express/implied obligation not to disclose contents.

o

‘Client’ – person engaging lawyers, person employing ‘in -house’ lawyer, employee/agent of client.

o

‘Lawyer’ – Australian/foreign lawyers, or their employees/agents.

Litigation (s 119) 

Use if attaching privilege to confidential communications concerning litigation.



Invoked if evidence would disclose: o

(a) Confidential communication between client and lawyer; or

o

(a) Confidential communication between client’s lawyers and another person; or

o

(b) Contents of confidential document. 62

Summary 1. CLP superseded common law privilege; 2. It is a rule of substantive law to help resist giving info rmation which may reveal communications between client and lawyer; 3. It is a 2 stage process  – assess the claim under s 118 or 119; 4. The part claiming privilege has the onus of establishing the basis of the claim and the party seeking production does not bear the onus of excluding privilege; 5. S 118 protects certain confidential communications and the contents of confidential documents made or prepared for the dominant purpose of a lawyer providing legal advice to a client; 6. Whether disclosure would result from adducing evidence – s 118 and 119 say it is not to be adduced if adducing it would result in disclosure of confidential information or documents; 7. Communications Communications between third parties and clients (not directed to the client’s lawyer) may be protected by legal advice privilege if their purpose is to enable the client to obtain legal advice and the third party is so implicated in the communications of the client to the legal ege framework; adviser such that it brings the third party’s work product within the privilege 8. The purpose is a question of fact (Esso ( Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49); 9. The dominant purpose of the communication must be determined objectively; 10. The claim for privilege will not succeed if all that emerges is that the document is a commercial document or has been brought into existence in the ordinary course of business. If that happens, unless the court is satisfied that the dominant purpose is the one in ss118119, no privilege applies. Please P lease distinguish between documents brought into existence to communicate legal advice and those that seek to make a decision in the ordinary course of  business; 11. If a party asserting privilege over a communication has the capacity to call direct evidence on the issue of purpose but does not do that, the court may infer the evidence would not have

assisted the party’s case; 12. The court has power to inspect documents to decide a claim of privilege.

Extra considerations

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

s 131A – Can extend outside courtroom to include p re-trial procedures (e.g. summons, discovery, search warrant).



s 122 – Parties can waiver by (1) express consent, or (2) if act inconsistently with maintenance of privilege, i.e. implied waiver. o

(3) Implied waiver example - Party knowingly discloses evidence to another, substance has been disclosed with express/implied consent of party.



s 125 – Privilege won’t apply if comm/doc made in furtherance of abuse of power/fraud. o

i.e. If client admits that h is ‘murdered’ wife is alive in a rural area, lawyer can disregard privilege and call the authorities.

Settlement Negotiations

s 131(1) – Evidence of such negotiations not to be adduced, except when: 

(2) Consent given to do so by both parties, necessary to enable proper understanding of  other evidence, it contradicts/qualified evidence already admitted about settlement attempts, etc.



Fielding v Commissioner for Railways  – Evidence may not be protected by privilege if  information not reasonably incidental to negotiations, or not properly connected to a settlement attempt.

Rape, Journos, Queen v Young (1999) 46 NSWLR 681:

-

This was an issue arising out of a matter at Tamworth Base Hospital. It was a sexual assault case and the records were subpoenaed and claimed by the Crown that they should not be produced.

-

EA 126 GHI etc cover this in civil procedure

-

K for Journos

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-

S131A now overcomes the problem of 118-19 118 -19 of the EA which allowed for no privilege in relation to rape counseling notes that would privilege notes from production.

Religious Confessions

s 127 – (4) must be done in professional capacity, (2) not for furtherance of a crime.

Evidence excluded in the public interest (‘Crown Privilege’)

s 130(1) – If public interest in open information outweighed by preserving secrecy/confidentiality, state documents can be protected by privilege. 

(4) Matters of national security, high-level policy po licy documents, internal law enforcement documents, commercially sensitive material.



(5) Court to consider importance of doc, who needs information, nature of offence, likely effect of adducing document.

Sankey v. Whitlam and ors Gibbs ACJ held in referring to Lord Reid in Conway v  Rimmer *1968+ AC 940 “there is the public interest that harm shall not be done the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the

withholding of documents which must be produced if justice is to be done.”

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BURDEN AND STANDARD Burden of proof 

The responsibility of a party to introduce evidence in support of his or her case in or der to persuade the tribunal of fact that the main facts in issue are established

Three types:

“legal” It is the party who alleges that there has been some breach affecting their substantive rights that carries the legal burden to establish that there has been a breach of the substantive law. Immediately arising on this burden is an evidential burden “evidential” 



It is the obligation of a party faced with a legal burden to adduce evidence in order to discharge that legal burden, i.e. to prove the main facts in issue by calling or tendering relevant evidence. “de-facto” 







If there is a large amount of evidence that is against the accused/defendant then they might introduce evidence to rebut the body of evidence It is not a true burden of proof cast by law, but it is cast by the situation that the jury will find against them unless they tell a different story Recognises the reality of the prosecution/plaintiff providing the elements

Note: The legal and evidential burdens never shift

Prima facie position criminal cases: crown bears legal and evidential burden against accused: Woolmington civil cases: plaintiff who bears the legal and evidential burden  

-

There are two concepts here. One is the legal le gal burden which remains constant. The legal burden deals with the onus on the plaintiff to prove his or her case or the prosecutor to do the same.

-

During a trial there will arise from time to time the evidentiary burden. This burden follows the legal burden but from time to time it has been said that it shifts so if  certain evidence is adduced by the plaintiff it needs to be rebutted by the defendant.

66

-

Walsh J in Currie v Dempsey (1967) Dempsey (1967) 69 SR (NSW) 116 cited by Cross On Evidence says

“the burden of proof in the sense of establishing a case lies on th e plaintiff if the fact alleged whether affirmative or negative in form is an essential element in a cause of 

action, for example if it’s existence is a condition precedent to his right to maintain the action. The onus is on the defendant if the allegation is not a denial of an essential ingredient in the cause of action but one which if established will constitute

a good defence. That is an avoidance of a claim which prima faciae the plaintiff has’.

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This is an excellent explanation of the current position on this issue.

[4] Appollo Shower Screens Screens v Building and Construction Corporation Corporation (1985)1 NSWLR

Defences and Excuses

Insanity – defence 

Both the legal and evidentiary burden is cast on the defendant to prove this point

Accident – excuse 

Once the defence raises accident the Crown has to disprove it beyond a reasonable doubt  – as legal burden never shifts

Self Defence – excuse 

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The Crown has to negative it beyond reasonable doubt The legal burden is cast on the Crown to negative it BRD once an evidential burden has been surmounted by the defence.

Woolmington v DPP 

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Woolmington was charged with murdering his estranged wife of 17.5 years by shooting her at her mother’s home after an argument. The accused said the shooting was an accident after he had produced a gun in order to make his wife think he was about to commit suicide he had wanted to use the gun to scare her into coming back to him He said that as he pulled it out to scare her it accidentally went off 

HELD

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D.

Judge said it was the duty of the prosecution to prove the prisoners guilt subject to there being some form of true defence on behalf of the accused true defences include insanity or that created by Statute prescribing that the o defendant must establish the defence The prosecution must also discharge the evi dential burden In relation to accident  – it is an excuse and therefore, the prosecution must establish that the excuse doesn’t apply after the defendant has a fleeting cast of evidential burden to point to or raise the excuse

Standard of proof 

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Legal minimum that you need to do in order to discharge your legal burden of proof 

Criminal Cases

**The burden does not apply in voi r dire** NSW 

Crown must prove their case so that the tribunal of fact is satisfied BRD: Woolmington

Thomas v R(1960) R(1960) 102 CLR, at pp 604-605 :

"Attempts by paraphrase and embellishment to explain to juries what is meant by satisfaction beyond reasonable doubt are not always helpful. And explanation is not always necessary . . . It is said that it ('the time-honoured expression') 'was invented by the common-law judges for the very reason that it was capable of being understood and applied by men in the jury box' . . . The expression proof beyond a doubt conveys a meaning without lawyers' elaborations." (at p32) 

Accused need only discharge any legal burden they have so tribunal of fact is satisfied on BOP: Woolmington (includes real defenses raised  – e.g. insanity) 

s143 and 145

The directions in these sections are only available for civil hearings not criminal. See Dyers v Queen (2002) 210 CLR 285. 

In Dyers Gaudron and Hayne JJ said: ‘As a general rule a trial judge should not direct a jury in a criminal trial that the accused would be expected to give evidence personally or call others to give evidence. Exceptions … will be rare.’ These are referred to in  Azzopardi’ . 

CEA 68

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Prosecution: BRD: s141(1) Defences: BOP: s141(2)

Civil Cases

NSW  

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Standard of proof is on the BOP for all parties: Woolmington; s140(1) CEA Where criminal conduct is alleged in a civil trial  – ‘clear’, ‘cogent’ or ‘strict’ proof is required o Eg. Where case for fraudulent misrep, must bring clear evidence of fraud because of the gravity of the charge Similar effect: s140(2)(c) CEA

Now, read Briginshaw v Briginshaw (1938) Briginshaw  (1938) 60 CLR 336: This case was about adultery. It was an appeal from an earlier decision where the appellant

husband’s petition for divorce on grounds of adultery was dismissed. The grounds for appeal were that the judge could not hold that adultery was proved unless he was satisfied beyond reasonable doubt of the fact of adultery and the criminal standard of proof should be applied in cases of adultery. In this case it is clear that where the law requires proof of  any fact the tribunal must feel actual persuasion of that fact. f act.

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In Briginsahw Dixon J said the court said that it must feel an actual persuasion of the occurrence or existence of a fact before it could find it occurred or existed:

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‘Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. [4] The seriousness of an allegation made, the inherent unlikelihood of an occurrence of  a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound 69

and prudent judgment if the question was whether some act had been done

involving grave moral delinquency.’

What this means is that if there is a situation of some type of moral misconduct the tribunal of fact has to be sure the allegation is made out taking into account matters such as the seriousness of an allegation, inherent likelihood of an allegation of the type alleged and so on. So, the gravity of consequences and the inherent likelihood of an event occurrence are taken into account. In effect, if there is an event in a civil matter with higher consequences then a higher degree of proof is required. Therefore it appears there is a stress on the notion of the weight of evidence. This is an inductive approach.

What I mean here is that there seems to be a particular way of formulating standards of proof and these depend on theoretical or philosophical approaches. In the criminal standard of proof we have to eliminate hypotheses consistent with innocence. In a civil case, the hypothesis is weighed according to available ev idence but with the proviso that this evidence constitutes a reasonable search for truth.

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The Briginshaw principles are reflected in the Act itself in s140(2) where the court may have regard to the nature of the cause of action or defence; and the nature of  the subject ,matter of the proceeding and the gravity of the matters alleged.

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[5] This latter point is important ( the gravity of the matters alleged ) because in Z in Z v  Dental Complaints Assessment Committee [2009] 1 NZLR 1 the CJ took the view that the criminal standard could be held.

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What this means is the civil standard will ‘float’ with those factors.

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In Z  In Z the the dentist administered drugs and faced criminal proceedings for indecent assaults and was acquitted but the complainants went before the complaints committee and had him struck off.

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In other jurisdictions they have a middle ground for proof, for example in Scotland,

they have ‘not proven’  which means we think you did it but we can’t prove it.

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In Z all but the Chief Justice held that the appropriate standard was the civil standard - or as we call it the Briginshaw standard. Briginshaw standard. The Chief Justice argued argued in favour of the 70

imposition of the criminal standard in serious professional disciplinary proceedings. She held (Elias CJ) that: On the related question of the standard of proof, I am of the view that the facts  justifying serious serious professional professional disciplinary charges should should be established established to the satisfaction of the tribunal to the standard of proof pro of beyond reasonable doubt. These are not civil proceedings in which society can be largely indifferent between the claims of litigants, so that it is acceptable that the risk of error in result be left to a mere balance of probabilities. Moreover, the case law relating to application of the standard of proof on the balance of probabilities where serious allegations are made is unsatisfactory, even in civil proceedings properly so-called. The notion of flexibility  in application of the civil standard is confusing and disputed even among judges of  high standing. In the case of disciplinary bodies with power to impose heavy penalties (including removal from the profession) and comprised of professional peers and lay  members it is in my view unacceptably loose to leave the matter on the basis that  sufficient protection is provided by "flexible" application of a balance of probabilities standard of proof. The higher criminal standard of proof should be frankly adopted in such disciplinary proceedings. The effect should not be exaggerated It simply requires the Tribunal to be sure of the facts which justify imposition of substantial penalties and the reputational and professional damage which results from a finding of serious  professional misconduct. misconduct. No case to answer 

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Available at end of Crown/Plaintiff’s case: the accused/defendant may allege “no case to answer” Question of law to be determined by the Judge/magistrate.

Criminal trial only be alleged if crown has failed to prove an essential element Dony : Provided there is some evidence, even if it is weak, tenuous or insubstantial, the Crown case has to go to the Jury on appeal: An appeal court can look at whether the evidence is unsafe and unsatisfactory and they will assess the weight of o f the evidence Direct verdict of not guilty  

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Civil trial will allege that evidence does not allow the drawing of the inference of facts necessary to support the contention Doctrine of election: Before can argue no case to answer, may have to elect not to call any evidence yourself  Judgment entered for the defendant 

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Exception – admissible on one ground but inadmissible on another

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If a piece of evidence is admissible on one ground but inadmissible on another, that piece of  evidence can only be used for the ground on which for it is admissible: Walton. Walton. There must be a clear direction by the Judge/magistrate to the jury as to the use of the evidence: Walton 71

R v Wilson   

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Wife was shot in the head. Husband aruged that it was an accident. The prosecution sought to admit evidence from neighbour that the couple had had a number of arguments prior to the event where the wife made comments such as, “you are just trying to kill me for my money” The Defence argued this evidence was objectionable because it was hearsay.

HELD 

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The neighbour’s evidence is not relevant for the purpose of establishing intent to kill. But it is relevant to show the nature of their relationship. The evidence was therefore admissable for that purpose and the jury could only use it for that purpose.

S189 relates to the voir dire. The purpose is to discuss the admissibility of evidence in the absence of the jury. This is a trial within a trial. If a voir dire is called then parties can call and cross-examine witnesses. A voir dire is available in both criminal and civil cases.

DNA Rv Coombs unreported NSWCCA, Hunt CJ at CL, CL, Smart, McInerney JJ) 24 April 1997) pg 25 per Hunt CJ at CL The presumption is that the evidence obtained following a breach of the Act is inadmissible unless, “in the opinion of the court the desirability of admitting the evidence outweighs the undesirability of admitting evidence that was not

obtained in compliance with the provisions of this Act”. This means that the burden is on the prosecution to satisfy the Court that the evidence should be admitted. The section to an extent mirrors section 138 of the Evidence Act 1995 (NSW) but there are significant differences. It will generally be useful to bring the

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Court’s attention to the differences between section 82 Crimes (Forensic Procedures) Act 2002 (NSW)and section 138 EA as they highlight the different considerations applicable when dealing with this category of evidence In R v Keir , the New South Wales Court of Criminal Appeal considered whether the ‘prosecutor’s fallacy’ had arisen during a criminal trial. The case involved the presumed murder of a woman in circumstances in which bone fragments were found buried under her house some years after her  disappearance. DNA taken from the fragments was compared with her  parents’ DNA for the purpose of identification. identification.[30] 44.31 An expert witness gave evidence that it was 660,000 times more likely to obtain the particular  DNA profile found in the bones if it came from a child of the missing woman’s parents, rather than from a child of a random mating in the Australian population. However, in his directions, the trial judge (restating the prosecution’s submissions) referred to the DNA evidence as providing a ‘660,000 to one’ chance that the bones were those of the missing woman, and therefore a ‘660,000 to one’ chance that alleged visual identifications of the woman after her disappearance were not correct. The Court held that the Crown had fallen into the ‘prosecutor’s fallacy’, and the trial judge had repeated the Crown’s submissions. The Court noted that neither defence counsel nor the trial judge had recognised the fallacy at tria

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