Evidence Flashcards
CHAPTER 1 - PRELIMINARY PART 1.2 APPLICATION OF THIS ACT [ss 4–11]
4 Courts and proceedings to which Act applies - proceedings in NSW. - interlocutory proceedings or proceedings of a similar kind. - are heard in chambers. - subject to s 31 of Bail Act 2013. - ss 4(2) and 4(3) - applies to sentencing if the court directs that the law of evidence applies in the proceeding. Where sentencing follows a trial the provisions of the act should apply [Lewis]. - s 94(2) - Pt 3.6 does not apply to sentencing. 7 Act binds Crown 8 Operation of other Acts - does not affect the operation of the provisions of any other Act. 9 Application of common law and equity - preserve principles or rules of common law and equity relating to evidence unless done expressly or by necessary intendment. - does operate as a code with respect to Division 1 of Part 2.1, Chapter 3 and standard of proof when deciding admissibility of evidence. 10 Parliamentary privilege preserved 11 General powers of a court - 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, in particular with respect to abuse of process.
CHAPTER 2 ADDUCING EVIDENCE [ss 12–54] DIVISION 1 COMPETENCE AND COMPELLABILITY OF WITNESSES [ss 12–20]
12 Competence and compellability - every person is competent. - who is competent is compellable. - see ss 306A to 306G of CPA 1986. 13 Competence: lack of capacity - not have the capacity to understand a question about the fact, or does not have the capacity to give an answer that can be understood to a question about the fact, and that incapacity cannot be overcome. - not competent to give evidence about a fact may be competent to give evidence about other facts. - not competent to give sworn evidence if the person does not have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence, may, subject to subsection (5), be competent to give unsworn evidence about the fact. - presumed, unless the contrary is proved, that a person is not incompetent because of this section. Burden on the party arguing incompetence to establish this on the balance of probabilities [s 142]. - court may inform itself as it thinks fit including by obtaining information from a person who has relevant specialised knowledge based on the person’s training, study or experience. - examples of assistance are ss 30 and 31. - test is the wording in s 13(3) “is that the person does not have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence” [RJ]. - the Court must first find the witness incompetent [Brooks], as failure to determine this or to give the instruction in s 13(5)(a) to (c) will invalidate the whole process and strict compliance is required [SH and MK]. The direction in s 13(5)(a) to (c) must only be given and does not have to be understood or acknowledged by the witness, but must accurately explain the contest of the 3 paragraphs. Competence must be determined “at the time of the adduction of evidence at trial and not in retrospect” [A2]. - s 189(1)(c) and 189(4) to be determined on a void dire. 14 Compellability: reduced capacity - person not compellable if there is substantial cost or delay involved in ensuring capacity, and adequate evidence will be given by other witnesses. 15 Compellability: Sovereign and others - cannot compel head of state, Governor, G-G, or Parliamentarian (if conflicts with sitting or committee meeting). 16 Competence and compellability: judges and jurors - judge and jury not competent to give evidence in current proceeding. - judge cannot be compelled to give evidence about proceeding without leave. - s 192 deals with the grant of leave and permits the court to give leave “on such terms as the court thinks fit”. When considering giving leave, direction or permission in all cases the court must take into account the matters prescribed by s 192(2), as well as matters relevant to the particular case [Stanoevski]. 17 Competence and compellability: defendants in criminal proceedings - defendant is not competent to give evidence as a witness for the prosecution even if consents or volunteers [Kirk, see s 190]. You cannot waive the provision and cannot volunteer to give evidence against yourself. - dgers’ interpretation of Kirk also means an associated defendant cannot volunteer to give evidence against the associate (for the crown) if they are tried together [i.e. joint trial. - associated defendant [defined in dictionary] cannot be compelled to give evidence for or against associate unless being tried separately and can then volunteer to do so. - court is to satisfy itself (if there is a jury, in the jury’s absence) that the witness is aware of the effect of subsection (3). - warning to jury in accordance with ss 165(1)(d) of matters in s 165(2)(a) to (c), unless good reasons not to [s 165(3)], with possible discretionary exclusion [s 137]. - see Dict cl 4(1)(b) - not competent = unavailable [ss 63 and 65]. - associated defendant defined in dictionary. - see Maddis for circumstances in which a separate trial will usually be ordered. 18 Compellability of spouses and others in criminal proceedings generally - spouse, de facto, child, parent. - ss 18(3) and (4) - when to object - must be made before the person starts giving evidence or as soon as practicable after the witness becomes aware of right to object, with anything up to the time of the objection being admissible. Court is to satisfy itself that the person is aware of the effect of this section. See of what he witness need to be aware of [Decision Restricted], essentially the elements of the sub-s (6) and (7) and that the court will decide. Sufficient for the judge to ask the representative to confirm that the person is aware of the relevant matters. Where, as here, the person is unrepresented, an explanation of the matters to which I have referred will need to be given. - Odgers suggests that in s 18(2) an objection to give evidence cannot be partial if aware of the right to object (see 18(4)), the witness cannot then give some evidence and then refuse to answer further questions. - police are not obliged to provide such advice. The appropriate time for there to be consideration of the compellability to give evidence is at the time he/she is required to give evidence at the trial [Giannasca]. - must be determined in the absence of jury [s 18(5)] - is a “balancing test” in s 18(6)(b). - ss 135 - 137 may be appropriate. - child defined in Dict [see 10(a) and (b) of Dict], but see Giannasca, which states that not step children. - prosecutor may not comment on the matters listed at s 18(8)(a) to (c). - s 65 may be utilised to tender previous statements. 19 Compellability of spouses and others in certain criminal proceedings - s 18 does not apply to offences relating to certain domestic violence and child offences. - see s 279 of CPA 1986, , which replaces s 18, where spouse can be compelled (but can also be excused by court on the basis on s 279(4)) to give evidence for either side in a range of child sex offences, domestic violence offences. Different test and would only apply to a narrower range of offences –`those that are “minor nature” 20 Comment on failure to give evidence - applies to criminal proceedings on an indictable offence. - judge and other party can comment (not prosecutor) on defendant’s failure to give evidence, and failure of spouse, parent or child to give evidence. - but only another party (e.g. co-defendant) can suggest that this was because defendant believes that he/she is guilty. The judge cannot do this. - if comment is to be made by a judge: 1. it should be expressed in terms of a failure to provide an explanation and not the failure to give evidence as such [Azzopardi]; 2. it should be made plain that it is a comment which the jury are free to disregard [Azzopardi]; 3. it should be placed in its proper context by identifying the facts that are said to call for an explanation [Azzopardi]; 4. the judge should remind the jury that the defendant is not bound to give evidence, that there may have been many reasons why he or she did not do so and the jury should not speculate about those reasons, and that the onus remains on the prosecution to prove guilt beyond reasonable doubt [Weissensteiner]; and 5. adequate directions should also be given to the jury that the fact that the accused does not give evidence is not an admission, does not fill gaps in the prosecution’s proofs and is not to be used as a make-weight [Azzopardi]. - SA authority suggesting that another defendant should not be permitted to make a submission that, if said by a judge, would be prohibited comment [Tran]. - where there is evidence that there may be persons who could have, but have not, given relevant evidence, it is almost always desirable to tell the jury that they may not speculate about what those witnesses might have said but must decide the case only on the evidence that has been led.” Such a direction should be given when “it is possible that the jury might think that evidence could have been, but was not, given or called by the accused” [Dyers]. - s 20(5) does not apply of if the co-defendant if tried for a different offence. The comment of the judge under this provision would be designed to ameliorate the impact of any adverse comments made by the defendant.
CHAPTER 2 ADDUCING EVIDENCE [ss 12–54] Division 2—Oaths and affirmations
21 Sworn evidence to be on oath or affirmation - witness in a proceeding must either take an oath, or make an affirmation in accordance with s Sch 1. - does not apply to unsworn evidence under s 13. 22 Interpreters to act on oath or affirmation - take oath or affirmation. 23 Choice of oath or affirmation 24 Requirements for oaths - still regarded as sworn even if common law requirements of taking an oath are not met. - s 13 deals exclusively with competence and that failure to understand the nature or an oath does not affect this. 24A Alternative oath
CHAPTER 2 ADDUCING EVIDENCE [ss 12–54] Division 3—General rules about giving evidence
26 Court’s control over questioning of witnesses - confirms judge’s power to control the proceedings in the manner listed in 26(a) to (d) in addition to general power in s 11 over the way witnesses are questioned. - the making of and “order” under this provision requires consideration of the terms in s 192(2) [Amalgated Television Services Pty Ltd and ASIC v Rich]. - under s 11, s 192 does not apply. 27 Parties may question witnesses - wish to cross-examine must be respected to ensure a fair trial provided reasonable notice is given [Tarrant] and if witness refused the evidence may be disregarded or excluded [Dowling]. - under common law judge only asks questions to remove apparent ambiguities [Olasiuk], however, it has been common for judges to now take a more active role and intervene when necessary to ensure that issues are clarified [FB]. 28 Order of examination in chief, cross-examination and re-examination - s 190 and 192 are relevant. 29 Manner and form of questioning witnesses and their responses - permits the court to make a direction, on its own motion, for a witness to give evidence partly or wholly in narrative form. May be more suitable to children, intellectually disabled, experts Aboriginals and Torres Strait Islanders [LMI Australasia] and unrepresented litigants [Isherwood]. - in criminal trials evidence should not be elicited in this way unless the defendant consents to the procedure pursuant to s 190 [Clarke]. - 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. - requirement for oral evidence should not be waived lightly especially if there is a disadvantage to the accused [Smith] - discretion in s 135 and 137 may apply. - subject to s 192 which permit the court to give a direction “on such terms as the court thinks fit”. “In all cases the court must take into account the maters prescribed by s 192(2)”, as well as “matters which may be relevant in a particular case” [Stanoevski]. 30 Interpreters 31 Deaf and mute witnesses - is subject to s 192, which permit the court to give a direction “on such terms as the court thinks fit”. “In all cases the court must take into account the maters prescribed by s 192(2)”, as well as “matters which may be relevant in a particular case” [Stanoevski]. S 190 is also relevant. 32 Attempts to revive memory in court - must not, in the course of giving evidence, use a document to try to revive his or her memory without leave. - in giving leave must take into account matters s 32(2). - may, with the leave of the court, read aloud, as part of his or her evidence, so much of the document as relates to that fact or opinion. - s 192, which permit the court to give a leave “on such terms as the court thinks fit”. “In all cases the court must take into account the maters prescribed by s 192(2)”, as well as “matters which may be relevant in a particular case” [Stanoevski]. - if an application to read from a document is made the court should first be satisfied that an attempt has been made to revive memory from it [Hinton]. - “fresh in his or her memory” means days and possibly weeks [Singh], however other authorities suggest “contemporaneity” and that event would not be “fresh” after more than 24 hours. However, in Roth it was open to grant leave in relation to a document made 5 years after the relevant event. - not appropriate to grant leave where the cross examiner has asked the witness not to refer to the document [Hadid]. - court may order that so much of the document as relates to the proceedings be produced to the party. - s 122(6) client legal privilege with will be lost if used for the purposes of this section and may fall within the exceptions in s 64(3) and 66(2). 33 Evidence given by police officers - gives the Court the discretion to allow the Police Officer to read out the statement or be led through it. - need to tender the document as evidence. - conditions in s 33(2)(a) to (c) must be satisfied. - “soon after the occurrence of the events” contemplates days rather than weeks [Orchard]. - s 33(3) has to be a police officer at the time the statement was made. - s 122(6) client legal privilege with will be lost if used for the purposes of this section. 34 Attempts to revive memory out of court - does not regulate attempts by a witness to revive memory before court other than to require production of the document. - s 34 would not apply if established that the witness referred “in part at least” to a group of documents. - s 122(6) client legal privilege with will be lost if used for the purposes of this section. - s 192, which permit the court to give a direction “on such terms as the court thinks fit”. “In all cases the court must take into account the maters prescribed by s 192(2)”, as well as “matters which may be relevant in a particular case” [Stanoevski]. 35 Effect of calling for production of documents - document called for or produced or inspected by a party does not have to be tendered. 36 Person may be examined without subpoena or other process - court may order the person to give evidence and to produce documents or things without a subpoena, provided the person is present at the hearing [s36(1)(a)] and compellable to give evidence [s 36(1)(b)]. - Once a document is produced it is in the court’s discretion whether to make it available to a party [Maddison].
CHAPTER 2 ADDUCING EVIDENCE [ss 12–54] Division 4 – Examination in chief and re-examination
37 Leading questions - “leading question” defined in dictionary. - a leading question must not be put to a witness in examination in chief or re-examination unless the any of the matters in s 37(1)(a) to (e) are satisfied. - s 37(1)(e) applies when an expert witness is asked a question about a hypothetical. - leave under s 37(1)(a), for example, necessary to obtain the whole of the W’s evidence where W has forgotten, or to direct W’s attention to some topic or expedite trial without being unfair to other party. - if question had been asked and answered, asking the question again may amount to “leading” [R v S]. - “designed to bring a witness’ mind to a particular subject matter” or assumes the existence of fact the existence of which is in dispute and of which the witness has not given any evidence before the question was asked. - s 192 deals with the grant of leave generally and permits the court to give leave “on such terms as the court thinks fit”. Whenever a court is considering giving leave, permission or a direction under the Act, “in all cases the court must take into account the matters prescribed by s 192(2)”, as well as “matters which may be relevant in a particular case” [Stanoevski]. - s 37(1)(c) in a criminal trial “prosecution is not entitled to introduce evidence… by an impermissible course, by taking advantage that defence counsel man not object” [Hannes]. - r 31.4 of UCPR is an example. - in criminal trials evidence should not be elicited in accordance with s 37(3) in this way unless the defendant consents to this procedure pursuant to s 190 [Clark]. - no breach if the question is designed to clarify [S L J]. - In NSW the court can rule that the evidence is inadmissible if there is no retrospective leave, with the circumstances for leave being different to those when there is a contemporaneous objection [A2] or a warning may be necessary [Knowles]. 38 Unfavourable witnesses - XX with leave if unfavourable or not making a genuine attempt to give evidence or prior inconsistent statement. - general cross examination is not permitted [Hogan]. - Unfavourable does not mean “adverse”, but rather “not favourable” [Souleyman]. - in Adam evidence that the prosecution witness did not see the defendant or near the victim at any time proximate to his stabbing was unfavourable to the prosecution case, as it was of “unhelpful quality rather than neutral”, with “neutral” not being enough. - “unfavourable to the party” means “unfavourable to the case which the party is seeking to advance” and this will depend on the circumstances of each case [Garrett]. Has nothing to do with “truthfulness” of the evidence. - it must be unhelpful, or detract from the case of the party calling it [Hadgkiss]. - inconsistent with or likely to be contradictory. - no need for motive or reason. - prior inconsistent statement will need to be proved [Yi]. - exclusion may be appropriate pursuant to s 135 instead of leave [Hawker]. - questioning under this section is to take place before the other parties cross examine the witness, unless the order is directed by the court. - may, with the leave of the court, question the witness about matters relevant only to the witness’s credibility. - when giving leave the court must take into account the matters in s 38(6)(a) and (b) as well as others which might be of relevance. S192 deals with the grant of leave generally and permits the court to give leave “on such terms as the court thinks fit”. Whenever a court is considering giving leave, permission or a direction under the Act, “in all cases the court must take into account the matters prescribed by s 192(2)”, as well as “matters which may be relevant in a particular case” [Stanoevski]. In granting leave XX may be restricted to particular matters. - notice should be given as a soon as possible, and, if not, this can be a factor when to be taken into account when granting leave [Ashton]. - can get an advance ruling pursuant to s 192A as to whether leave should be given under s 192. - may be necessary, but not obligatory to warn the jury if the witness is found to be unfavourable under s 165. - In R v Le, Le tried to flush heroin down toilet during police search. His girlfriend told the Police they were Le’s drugs - later she recanted and said they were hers (Le bought her a car), and gave evidence inconsistent with evidence given previously to the Police. With Le, s 38: 1. Testing of evidence-in-chief with a view of establishing truth of matters asserted in the prior inconsistent statement (proving the original statement true). 2. Examination of witness on matters of credit with a view to jury accepting prior inconsistent statement. 3. Examination of background at time that prior statement was made and background at time when witness moves to new story 4. Inquiry into possible reasons for change, including motive. - In Le, also, failure to consider ss 192, 135, 137 immaterial if would have reached the same conclusion and immaterial that the judge did not give leave in “small dollops”. - s 38(3) “question the witness about matters relevant only to the witness’s credibility” [see Odisho]. 39 Limits on re-examination - only questioned about matters arising out of XX unless leave is granted. - where an attack on credibility had been made, evidence may be elicited with leave of the court in re-examination even though this cannot be described as arising out of cross examination, as it arises out of the nature of cross examination.For example, an allegation of invention of testimony will permit evidence of an earlier consistent statement to be adduced in re-examination pursuant to s 108(3)(b). - REX defined in Dict. - s 37(1) no leading questions. - see s 108(1), which exempts evidence adduced in re-examination of a witness from the credibility rule. Here, the credibility of the witness was compromised by his answers in cross-examination and the questions in re-examination were aimed at re-establishing the witness’ credibility. - s 192 deals with the grant of leave generally and permits the court to give leave “on such terms as the court thinks fit”. Whenever a court is considering giving leave, permission or a direction under the Act, “in all cases the court must take into account the matters prescribed by s 192(1)”, as well as “matters which may be relevant in a particular case” [Stanoevski].
CHAPTER 2 ADDUCING EVIDENCE [ss 12–54] Division 5—Cross-examination
40 Witness called in error - not to cross examine a witness called in error that has not been questioned. 41 Improper questions - must [mandatory] disallow if falls within s 41(1)(a) to (d). - must take into account matters in s 41(2) for the purposes of s 41(1). - also may rely on ss 11 and 26. - s 41(1)(b) - cross examination can be robust, but it must be fair and does not amount to a license to offend, ridicule or vilify and there must be a basis for the questions asked and questions be asked without insulting commentary without permitting the witness to answer the question and not interrupted [Lets Go Adventures Pty Ltd]. Effective cross examination may involve a form of harassment and cause embarrassment, which may be justifiable, with the important consideration being the probative value and importance of evidence to be elicited [Lets Go Adventures Pty Ltd]. - In Libke Heydon J discussed a number of “improper” questions, which include (a) compound questions; (b) questions relating to controversial assumptions; (c) argumentative questions; (d) comments; and (e) cutting off answers before they are completed, with the prosecutor being subject to additional constraints [Whitehorn]. - duty imposed on the court by this section applies whether or not an objection is raised to a particular question. - failure to object or court to interfere does not affect admissibility. - s 294A CPA 1986 imposes restraints on examination by an unrepresented defendant of a complainant in sexual offence proceedings. 42 Leading questions - XX and “leading question” defined in the Dict. - may be put in cross examination unless the court disallows or directs not to answer. The matters that court is to take into account are all of the matters in s 42(2)(a) to (d). - court may disallow a question or direct not to answer it if the court is satisfied that the facts concerned would be better ascertained in leading questions are not asked. - courts power to control leading questions is not limited [42(4)]. This general power is derived from ss 11 and 26. - s 192 deals with directions generally and permits the court to give a direction “on such terms as the court thinks fit”. Whenever a court is considering giving leave, permission or a direction under the Act, “in all cases the court must take into account the matters prescribed by s 192(2)”, as well as “matters which may be relevant in a particular case” [Stanoevski] is a discretionary one [A2]. 43 Prior inconsistent statements of witnesses - PIS and “representation” defined in Dict. - e.g. witness gives evidence in witness box that did not see anything on night in question. Previous statement given to police that she witnessed the murder. Section 43(1) - can ask questions about PIS whether or not complete particulars given or lf she admits the PIS, you can cross-examine on PIS without meeting requirements in s 43(2). lf she does not admit it – you must observe requirements in s 43(2). - production of this document can be required at any stage under s 45(2), pursuant to s 45(5) merely showing a document to the witness does not require tender. - pursuant to s 43(3) for the purpose of adducing the statement, a party may re-open a party’s case [i.e. by prosecution]. 44 Previous representations of other persons - cross examiner must not question a witness about previous representations alleged to have been made by a person other than the witness unless s 42(2)(a) or (b) is satisfied. - if contained in a document pursuant to s 44(3), the document may only be used to question the witness in the manner prescribed in s 44(3)(a) to (d) [R v S]. - no leave for the purposes of s 44(3) is necessary [R v S], with court being able to supervise questioning under s 26. - s 45(5) merely showing the document to a witness does not require the party to tender the document. 45 Production of documents - applies where witness has been cross-examined about a PIS (under s 43) or previous representation of another (under s 44). - lf the court orders / a party requires, the examining party must produce the document to the court or the other party. - court can examine it, direct as to use, admit it even if not tendered by that party, but cannot admit document that is inadmissible. - merely showing document to a witness does not mean that you have to tender the document. - s 188 - court may impede document subject to conditions. 46 Leave to recall witnesses - court may give leave to a party to recall a witness to give evidence about the matter raised by evidence adduced by another party, being a matter on which the witness was not cross examined if the evidence concerned has been admitted and the condition in s 46(1)(a) or (b) are satisfied. - overlaps the common law rule of fairness in Browne v Dunn that is if it is intended to adduce evidence to the contrary to a witnesses testimony as part of his or her argument, that version of events [substance] must be put to the witness during cross examination. Requirement that the opponent put the substance of the case to the witness [i.e. contrary evidence or assertion should have been put to the witnesses]. - a matter raised by the evidence adduced by another party included an inference [s 46(2)]. - party must give appropriate notice to the other party and any of the person’s witness of any imputation that the former intends to make against either of the latter about his or her conduct relevant to the case or a party’s or a witnesses’ credit [MWJ}. - narrower in criminal matters, because of prosecutor’s duties [MWJ]. In “very special or exceptional” circumstances in criminal cases and whether it is in the interests of justice in civil. - no breach if the matter in respect of which there was no cross examination is not in issue in the proceedings [Director, Office of the Fair Work Building Industry Inspectorate]. - consequences that flow from the breach are: 1. recalling the witness for further cross-examination so that contrary evidence can be put [MWJ]. 2. allow the party who called the witness to re-open its case to lead evidence to rebut the contradictory evidence or corroborate the evidence of the witness. 3. cross examination of the party in breach and adopting the witness’ account given there is no contradictory evidence. 4. limiting the use of evidence adduced by the party in breach [i.e. so that it cannot be used to challenge the truthfulness of representation]. 5. excluding the evidence adduced in breach of rule [O’Gara]. 6. Drawing of adverse inference from the failure to cross-examine [Birks]. 7. taking account of the breach if application was made to recall and refused. 8. discharge the jury if problems created by breach are incurable and nothing can be done to prevent miscarriage. 9. appropriate jury directions. - not a breach if the witness has been given prior notice that there is contradictory evidence. - service of pleadings/particulars, contrary witness statements may provide sufficient notice [- cross-examination that covers all possible contingencies may be impractical or oppressive [Vines]. - see s 39. - s 192 deals with directions generally and permits the court to give leave “on such terms as the court thinks fit”. Whenever a court is considering giving leave, permission or a direction under the Act, “in all cases the court must take into account the matters prescribed by s 192(2)”, as well as “matters which may be relevant in a particular case” [Stanoevski]. Under s 46, when deciding if leave should be granted practical problems such as securing re-attendance, importance and any issues of unfairness to crown should be considered [Khamis].
CHAPTER 2 ADDUCING EVIDENCE [ss 12–54] Part 2.2 – Documents
47 Definitions 48 Proof of contents of documents - different parts of s 48(1) may be combined with admissibility not depending on the document being an exact copy, as it is sufficient that the document “purports” to be a copy which “purports” to have been produced by such a device [Calleja]. - in contrast s 48(4) requires that a document “is a copy of”, being a fact that would have to be proved on the balance of probabilities in accordance with s 142 [Lewis]. - word “or” in initial part of s 48(1) may mean if original is tendered (such as tape recording) other evidence could not be [Georgiou], however, the better view is that it should be interpreted as “or, or as well”. - CCTV footage is a document [Wade]. Pursuant to s 48(4)(b) a police office who viewed the CCTV before it was deleted could give evidence of its contents [Wade - s 48(1)(a): a party may be cross examined to obtain an admission [Alchin]. - s 48(1)(c) and (d): sufficient is the document purports to be and if there is doubt as to whether the transcript is accurate or indistinct it can be admitted as an aide memoire to assist jury’s perceptioa and understanding [Eastman]. Transcript use may be rejected or use limited under s 135 or 137. Section 48(1)(c) would not apply where a translation of the words contained in the audio tape take place in order to prepare a transcript, as it would be caught by the opinion rule in s 76, which must be rendered inapplicable pursuant to s 78 or s 70 or waived under s 190 [Tsang Chi Ming]. - computer system that records information is a document for the purposes of the EA and could be adduced by tendering the hard disk of another computer in so far that it contained a particular file, as the fact that it was a copy of a copy of a copy did not prevent it being a copy for the purposes of this section [Lewis], it had however, been proved in Lewis that the original computer was not available on a balance of probabilities under s 142. - s 183: reasonable inferences may be drawn from the document. - s 171: evidence of fact “that is to be proved in relation to a document or thing” may be given by a person permitted to give such evidence by affidavit or if the document relates to a public document by a written statement. - s 172: the evidence may be based on the person knowledge and belief of the person who gives it or on information that the person has. - s 173(1): a copy of the statement or affidavit must be served on each party a reasonable time before the hearing of the proceeding. - s 186: provides for the swearing of affidavits. - s 181 permits proof of service of a written notification, notice, order or direction by affidavit of the person who served it. 49 Documents in foreign countries - s 192 deals with directions generally and permits the court to give leave “on such terms as the court thinks fit”. Whenever a court is considering giving leave, permission or a direction under the Act, “in all cases the court must take into account the matters prescribed by s 192(2)”, as well as “matters which may be relevant in a particular case” [Stanoevski]. 50 Proof of voluminous or complex documents - if voluminous can adduce summary. - opinion rule does not apply to evidence adduced in accordance with this section - there 3 matters to be considered: (a) must be summaries rather than comprising conclusions or statements of opinion; (b) the volume and complexity is such that it is not possible to examine the evidence; and (c) reasonable opportunity given to the other party to examine the documents in question. - the fact that a summary may involve some opinion does not mean the section cannot be invoked, but there will be a point where it will not be a true summary [Botany Bay City Council]. - s 50(3), the opinion rule does not apply. 51 Original document rule abolished.
CHAPTER 2 ADDUCING EVIDENCE [ss 12–54] Part 2.3—Other evidence
52 Adducing of other evidence not affected 53 Views - a judge may, on application of a party, order that a demonstration, experiment or inspection be held. Does not deal with admissibility of experiment conducted out of court [Evans] [i.e. such as defendant providing a sample fo handwriting]. - “inspection” is an out of court examination of land or chattels too big to be brought into court. - “demonstration” is like an inspection incorporating an explanation by a witness of the incident in question or a demonstration of the machine or object in operation. - “experiment” is a test or trial or tentative procedure for the purpose of discovering something or testing a principle or hypothesis. - an order under s 53(1) is an application for leave or permission or direction within the meaning of s 192(1) [Evans]. S 192 deals with directions generally and permits the court to give leave “on such terms as the court thinks fit”. Whenever a court is considering giving leave, permission or a direction under the Act, “in all cases the court must take into account the matters prescribed by s 192(2)”, as well as “matters which may be relevant in a particular case” [Stanoevski]. This is supported by authority that says that making an “order” under s 26 requires consideration of s 192: ASIC v Rich, but no direct authority on this point. 54 Views to be evidence - court (including, if there is a jury, the jury) may draw any reasonable inference from what it sees, hears or otherwise notices during a demonstration, experiment or inspection. - what happens on a view now constitutes evidence [Milat]. - sections have nothing to do with the admissibility/relevance of the view or demonstration. - s 53 does not apply to what happens in the courtroom [i.e. in-court demonstrations] [Evans], such are governed by s 55 [relevance] and ss 135 and 137. - all but the simplest experiments cannot be conducted in Court.
Chapter 3—Admissibility of evidence
55 Relevant evidence - requires the minimal logical connection between the evidence and the facts in issue. - whether logical or rational connection exists is an objective test grounded in human experience. - does not need to make a fact ‘probable’, just more or less probable than it would be without the evidence. - indirect connection is sufficient [i.e. defendant expressed intention to kill victim – supports inference that did have that intention – more likely that those without such an intention to have actually killed victim. - facts in issue emerge from pleadings (civil case) and elements of the offence (criminal). Sometimes a question of fact and law, such as negligence. - in order to establish relevance is necessary to point to a process of reasoning by which the information in question could affect the assessment of probability of the existence of fact in issue [Washer]. Evidence may be so inherently incredible, fanciful or preposterous that it could not be accepted by a rational jury. In such circumstances, its effect on the probability of existence of fact in issue will be nil and it would not be relevant [IMM]. - Questions of relevance do not require discretion, as evidence is either relevant or it is not [Smith compare Papakosmas]. - For example, in Jackson the representation was so ambiguous that it could not rationally affect the assessment of probability of a fact in issue. - relevance does not depend on its capacity by itself to prove anything and assessment of probabilities must be made in context of other evidence either admitted or subsequently adduced [Evans]. If it is dependent on evidence to be adduced s 57 may be utilised which permits provisional findings of relevance. - evidence that a person has made certain allegations may be relevant to prove the truth of the allegations (hearsay use) but may also be relevant if the person subsequently testifies, to their credibility as a witness (supporting credibility if the out-of-court allegations are consistent with the in-court testimony; and diminishing credibility if inconsistent). - under ss: 59, 76, 89, 91, 97, 98, evidence that is relevant for more than one use might only be admissible for one of those uses. The mere fact that evidence has been admitted does not mean it can be used in all the ways that it is relevant, but see discussion of s 60. - pursuant to s 55(2) evidence is taken not to be irrelevant only because it relates to matters in s 55(2)(a) to (c), however, there must still be compliance with s 55(1). 56 Relevant evidence to be admissible - it is necessary to identify the purpose for which the evidence is tendered [IMM]. If admitted for one use, but is not relevant for another use it is not admissible for the later use [Lym International Pty Ltd]. - If “evidence is not relevant, no further question arises about its admissibility. Irrelevant evidence may not be received” [Smith]. - in determining relevance, you have to determine the issues at trial. ln a criminal trial, the ultimate issues are the elements of the offence with which defendant is charged. - if there is an objection to admissibility on the basis of relevance, it is for the party tendering the evidence to make cleat to the court the purpose for which evidence is tendered and how it becomes relevant and admissible [Jones Lang LaSalle (NSW) Pty Ltd]. The objection should be ruled on as soon as possible with ruling given immediately after the objection has been made and argued and if cannot be done before the party tenders the evidence and closes case and only for good reasons should this be deferred until judgment [Dasreef]. - in Smith the only basis for the police officers’ conclusion was their earlier encounters with witness. In Smith police were in no better position to make a comparison than the jurors observation of defendant in dock with observation of photos. Therefore police’s evidence could not rationally affect jury’s assessment of whether defendant was the person in the photographs. May be different if the defendant’s appearance at trial differs in some significant way from time of the crime, e.g. had a beard then, doesn’t now. Or if there is some distinctive feature revealed by photos (e.g. manner of walking) that would not be apparent to jury in court. “because the witness’s assertion of identity was founded on material no different from the material available to the jury from its own observation, the witness’s assertion that he recognised the appellant is not evidence that could rationally affect the assessment by the jury of the question we have identified. The fact that someone else has reached a conclusion about the identity of the accused and the person in the picture does not provide any logical basis for affecting the jury’s assessment of the probability of the existence of that fact when the conclusion is based only on material that is not different in any substantial way from what is available to the jury.” However, Kirby J considered that evidence was indirectly relevant as police had seen the accused in various guises, in daylight, and from various angles, and were in a better position to assess if he was the person in the photos. Don’t want to set the hurdle of relevance too high, but excluded as evidence of opinion under s 76. - in Evans defendant was required (during XXM) to wear the overalls and balaclava, as well as pair of sunglasses similar to that in the footage, in front of the jury, for purpose of comparing his appearance with person in footage. Also asked to speak words “give me the serious cash” and walk around in front of jury. Was the evidence of the accused putting on the balaclava and sunglasses relevant? The defendant argued that as it was not asserted that the balaclava was that of the offender and therefore it was irrelevant. Was the evidence of saying “Give me the serious cash” relevant? One witness has suggested that Evans pronounced “serious” as “sherious” (but not pressed) and had a dull voice. Judges disagreed. lf attired in a balaclava, and he had looked very different to the description given by eyewitnesses, that would have been material capable of raising a reasonable doubt. lf he had looked similar it would, taken with other evidence, have been capable of supporting a conclusion of identity. Was the evidence of the accused walking in the overalls relevant? - 3 judges say that it is relevant (in relation to the wearing of the balaclava and clothes). - 3 judges find it inadmissible. 57 Provisional relevance - if the relevance of evidence depends upon establishing other facts (authorship, identity, accuracy) then the standard of proof to be applied is whether it would be reasonably open to the jury to find it proved. Provision recognises that the relevance of evidence depends upon other facts authorship, identity, accuracy. - where evidence is relevant in combination with other evidence, the judge may receive the evidence conditionally upon the assurance of the party that the other information will be properly tendered. Scenario 1: If the relevance of item A depends on the admission of item of evidence B, A may be provisionally admitted if the party adducing A undertakes to adduce B. If B is not adduced or not admitted, A will cease to be relevant and will not be admitted. Scenario 2: I want to adduce evidence produced by computer e.g. I tender a transaction report claiming it represents all transactions the accused engaged in above $5000. I will need to prove how the computer works i.e. is capable of identifying all transactions above $5000. - allows the Court to say “evidence is provisionally relevant where the relevance of any particular piece in the jigsaw cannot be determined conclusively until the court has completed the jigsaw” [Nodnara Pty Ltd]. 58 Inferences as to relevance - in determining the relevance of an object, reasonable inferences may be drawn from it. This appears to extend to the authentication of the document. - Rusu considered that authenticity should be distinguished from relevance, and that on this approach, a document could not ‘authenticate itself’ and that Before a document is admitted into evidence, there should be an evidentiary basis for finding that it is what it purports to be. - ACCC v Air NZ: Rusu was ‘plainly wrong’, holding that a court may draw reasonable inferences from a document for the purposes of determining that the authenticity of the document may reasonably be inferred (and the document was, accordingly, relevant) and the question for the tribunal of law is not whether the document is authentic, but whether receipt of the document could, to paraphrase s 55, rationally affect the assessment of the probability of a fact. The question for the tribunal of law, by contrast, will be whether the document is relevant to a fact in issue under s 55. That is, the question will be whether the document can rationally affect the assessment of the probabilities of the fact, including its authenticity. Regrettable that this issue was not raised [Callega]. - this provision does not deal with the drawing of inferences from the object or document in order to establish some other precondition to admissibility, but only relevance. - s 183 can be relied upon to allow for such other inferences to be gained from a document or thing, for example those relating to the application of the hearsay exception in s 69.
Part 3.2—Hearsay Division 1—The hearsay rule
59 The hearsay rule—exclusion of hearsay evidence - “previous representation” and “representation” defined in Dict. - Applies to statements and conduct [Lee], although what is inferred by conduct may be a form of opinion, as well as silence [Rose]. - provision does not apply to machine generated information where there is no relevant human input [Campbell]. - evidence is not caught by the hearsay rule if it is not adduced to prove the facts asserted, but adduced for some other purpose. Thus, purpose is important [Walton]. - Careful directions will be needed as to how it can and cannot be used [Glasby]. The party arguing admission will have to satisfy the court that it could not reasonably be supposed that the person who made the representation intended to assert the particular fact. - the correct approach to s 59: 1. identify the previous representation. 2. what is the intended asserted fact in the previous representation? That is, what fact is the maker of the previous representation intending to assert by making the representation? 3. is the previous representation being adduced to prove that asserted fact in the previous representation? – if yes, then s 59 excludes the evidence (see if an exception applies). 60 Exception: evidence relevant for a non-hearsay purpose - allows evidence that has been admitted for a non-hearsay purpose to also me relied upon for its hearsay purpose. Takes the opposite approach to common law [Lee]. - s 60 operates only on representations that are excluded by s 59. - s 60 operates upon second-hand and more remote hearsay. Takes the opposite approach to common law [Lee]. That is, if representation is made by one person, to another, who then makes it to another again, this is subject to s 60 (as long as it is admissible for another purpose). But s 60(3) still preserves the result in Lee, because it excludes the operation of s 60 in relation to admissions in criminal proceedings (which it was in Lee). We will discuss admissions in later weeks. his applies whether the representation was first-hand or second-hand etc. Therefore, s 60 will never apply to admissions in criminal proceedings (but s 81 will). - for s 60 to operate at all, the representation has to be admitted for another purpose (for which obviously must be relevant). - purpose does not mean subjective purpose [Adam]. Rather it refers to the use the evidence, if admitted, will be put, as objectively ascertained. If a party wishes to rely on this exception to the hearsay rule, this should be made clear and a ruling should be obtained that evidence may be used for a hearsay purpose [Ghebrat], as then s 136 may be utilised. Does not convert evidence of was said, out of court, into evidence of some fact that the person speaking out of court did not intend to assert [Lee]. - an example where s 60 will work (and will not be blocked by s 60(3)), is a civil case arising from a car accident. Say: • Calin sees Lee get out of the crashed car, and Lee says to him, “I drifted across the road into the other car.” • Calin tells the Police or the insurance assessor these things, but in court, although he admits signing the statement to police, he denies that the statements in the signed document were his. The assessor is called to give evidence of what Lee said to Calin, which he told to the assessor. • Here, because of the operation of s 60, if this statement is relevant for another purpose (to attack Calin’s credibility) it can also be used to prove the truth of what Lee asserted (that he caused the accident) because of s 60(2). And s 60(3) does not apply, because it is a civil case. • In this case, it is Lee’s original representation that is important. - because of s 60(3), the actual outcome of Lee is maintained. - s 136 applies. If requested a judge is required to warn the jury that the hearsay evidence is unreliable under s 165(1)(a) [Lozano]. ]. If there is a ruling or a concession from the other party not to use the evidence for a hearsay purpose a direction may be necessary to the jury to what use evidence may be put [Christian]. 61 Exceptions to the hearsay rule dependent on competency - does not enable use of a previous representation to prove the existence of an asserted fact if, when the representation was made, the person who made it was not competent to give evidence about the fact because of section 13(1). - does not apply to a contemporaneous representation made by the person about his or her health, feelings, sensations, intention, knowledge or state of mind. - competence is presumes when the representation is made. Burden of proof is on the party arguing against competence to prove it on the balance of probabilities in accordance with s 142(1). - it will, also, not apply where the representation is tendered for the purposes other than proving the asserted fact.
Part 3.2—Hearsay Division 2—“First-hand” hearsay
62 Restriction to “first-hand” hearsay - a person has personal knowledge of the asserted fact if his or her knowledge of the fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived. - it is enough that is “might reasonably or supposed” to have been based and not that it was so based. One of the ordinary meaning of “perceive” is “to observe by one of the five senses of sight, hearing, smell, taste or touch” and this is clearly the meaning of “personal knowledge of fact” [Jackson]. 63 Exception: civil proceedings if maker not available - “unavailability” is defined at Pt 2, 4 of Dict and includes “not competent”. Refusal, not withstanding contempt, to give evidence is one who is “unavailable” [Suteski]. Where mental condition is such that will suffer significant mental adverse consequences if he/she testifies [Nona]. Application of s 18 will satisfy non-availability. - c 63 only applies to civil proceedings where a person who made the previous representation is not available to give evidence about at asserted fact [s 63(1)]. - Civil proceedings are defined in the Dict. - s 67 imposes notice requirements. - s 167 permits a party to make reasonable request to another party for the purposes of determining a question that relates to previous representation. - under s 166(f) a request can include to another party to call as a witness the person who made the previous representation, however, unavailability would provide “reasonable cause” within the meaning of s 169(4) for the purposes of non-compliance. - s 108A permits to tender evidence to the credibility of the other person who made the previous representation and s 108B imposes further restrictions on admission of such evidence where the person is a defendant in criminal proceedings. - s 171 evidence of fact “that is to be proved in relation to a document or thing” may be given by a person permitted to give such evidence by affidavit or if the document relates to a public document by a written statement. - s 172, the evidence may be based on the person knowledge and belief of the person who gives it or on information that the person has. - s 173(1) a copy of the statement or affidavit must be served on each party a reasonable time before the hearing of the proceeding. - the party who tenders the affidavit or statement must, if another party requests, call the deponent or the make of statement, but need not otherwise do so in accordance with s 172(3). - s 186 provides for the swearing of affidavits. - s 181 permits proof of service of a written notification, notice, order or direction by affidavit of the person who served it. 64 Exception: civil proceedings if maker available - s 64 applies to civil proceedings if a person who made the previous representation is available to give evidence about an asserted fact [s 64(1)]. - s 64(2), the hearsay rules does not apply to the matters in s 64(2)(a) or (b). - as to undue expense and delay relevant considerations would include the nature of the proceedings and the considerations listed in s 135 and 192 [also see ACCC v CC]. In Franklin it was held that it would cause “unwarranted expense and delay” to call 6 witnesses when to give evidence orally when a transcript of their earlier evidence was available and the reliability of that evidence was not significantly challenged [consider alternatives such as video link]. - if a person who made the representation has been or is to be called to give evidence, the hearsay rule does not apply to evidence of a representation given by that person [s 64(3)(a)] o a person who sawm heard or otherwise perceived the representation being made [s 64(3)(b)]. The provision would not apply where the person had testified but made not given any evidence about the representation and the representation was then tendered in a document [Osbourne]. - pursuant to s 64(4) a document containing the representation to which s 64(3) applies must not be tendered before the conclusion of the examination in chief of the person who made the representation unless the court gives leave. The dictionary provides that document includes any part of a document. - hearsay rule in 59 does not apply to other representations sought to be used for the purpose of understanding the previous representation admitted under this provision as they are not being admitted for the purpose of proving the existence of fact that it can reasonably be supposed that the person intended to assert by the representation. Any representation admitted for such a purpose could then be used for a hearsay purpose under s 60 subject to s 136. - s 192 deals with the grant of leave and permits the court to give leave “on such terms as the court thinks fit”. When considering giving leave, direction or permission in all cases the court must take into account the matters prescribed by s 192(2), as well as matters relevant to the particular case [Stanoevski]. 65 Exception: criminal proceedings if maker not available - “criminal proceedings” and “unavailability” is defined in Dict. - s 65(2)(a) exemption does not apply to evidence of an entry in a document, where there is no evidence by person who at least perceived the entry being made [Conway], if there is such evidence the document may be adduced through a witness [Suteski]. - s 65(2)(b): no requirement to establish that the asserted fact in fact occurred, it is assumed it occurred [Polkinghorne]. There must be a temporal connection between occurrence of the act and the making of representation [Azizi]. “shortly after” is flexible and the consideration include the subject matter of event and how long the memory of such event is likely to remain clear in mind [Mankotia]. In Harris it was held that a statement made 24 hours after the incident was made “shortly after”. Party seeking admission will have to point to circumstances which make which make it unlikely that the representation is a fabrication, but it is not sufficient to point to absence of circumstances [Williams]. - 65(2)(c): a system of work that would be well remembered, and maker had no person interest in proceeding and any inclination to exaggerate would have been outweighed by an inclination to avoid a criminal prosecution for giving false information [Munro]. - s 65(2)(d) objective and does not turn on the motives of the representor and should be determined in context rather than in isolation [Suteski]. Attention must be directed to the circumstances in which the statement was made to establish reliability rather than tom a general assessment of whether or not the representor is a reliable witness [Sio]. - For s 65(2) focus must be on the particular representation with circumstances in which the representation was made may be considered in order to determine whether the conditions are met in relation to each relevant fact though to be proved [Sio] - s 65(2)(a): does not have to be dead, just unavailable. It doesn’t have to be a legal duty, and you don’t have to prove absence of motive to misrepresent. - s 65(3)-(6): allows the transcript of evidence given in other proceedings to be used in the current criminal proceedings, if the current defendant cross- examined the maker during the course of the previous proceedings or had a reasonable opportunity to do so. - s 65(8) and (9): the defendant in criminal proceedings does not have to comply with the more stringent tests in (2)(a) to (d), and effectively uses the civil test. .i.e. a representation sought to be adduced by the defendant (doesn’t necessarily have to be the defendant’s own representation). If this is done, then s 65(9) allows another party (crown or other defendant) to adduce evidence that explains the representation admitted by the defendant under s 65(8). May agree to waive requirement of “retaliatory” material pursuant to s 190 in order to permit prosecution to admit evidence early in the trial and avoid re-opening the case after the defences case, where notice had been given [Mrish]. - CPA 1986 allows evidence to be admitted of a deposition taken from a person who was “dangerously ill”, as well as evidence of a written statement admitted in comital proceedings is person is practically unavailable. 66 Exception: criminal proceedings if maker available - s 66(1), only applies in criminal proceedings if a person who made the previous representation is available to give evidence about the asserted fact. Evidence will also be admissible to support credibility, provided it is consistent with in court testimony [IMM] [ss 101A and 102 and subject to s 136]. - s 66(2): pursuant to s 66(2), if that person is called to give evidence, the hearsay rule does not apply to evidence of the representation given by that person [s66(2)(a)] or a person who saw, heard or otherwise the perceived the representation being made [s66(2)(b)], if when the representation was made the occurrence of the asserted fact was “fresh in the memory” of the person who made the representation. - s 66(2A): in determining whether the occurrence of the asserted fact was “fresh in the memory” of a person the court may take into account the matters it considers relevant including the matters in s 66(2A)(a) to (c). No requirement that the person have any memory at the time of proceeding [Singh]. In accordance with s 142, the court must be satisfied on the balance of probabilities. “The nature of the events remembered” is the critical factor [LMD]. The nature of the abuse may be such that it may remain fresh in the memory for many years [Bauer]. Test for “fresh in the memory” should be approached on the assumption that the complainant was truthful with ambiguity and inconsistency suggesting unreliability being extraneous [XY and Bauer]. - s 66(3): may, however, be used to refresh memory or be admissible under credibility provisions [Esposito]. Means that hearsay representations contained in police statements and other similar documents may not be saved by this exception. - s 66(4), a document containing a representation to which s 66(2) applies [i.e. representation made by signing a document], must not be tendered before the conclusion of the examination in chief of the person who made the representation, unless the court gives leave. - s 306B(4) of CPA 1986, the hearsay rule does not apply to evidence given by a complainant in relation to a prescribed sexual offence at trial in relation to that offence being admitted a retrial of that offence. - s 306V(1) of CPA 1986 provides that the hearsay rule and the opinion rule do not prevent the admission or use of evidence of a previous representation given by a “vulnerable person”. - s 289I provides that hearsay rule or the opinion rule do not prevent the admission or use of evidence of a representation made in a recorded statement by a complainant in relation to domestic violence offence when questioned by police officer about the offence so long as the recording was made with informed consent of the complainant and the questioning occurred as soon as practicable after the commission of the offence. - s 306X: directions have to be given to jury with respect to such evidence. 66A Exception: contemporaneous statements about a person’s health etc - the hearsay rule does not apply to evidence of previous representation made by a person if the representation was a contemporaneous representation about the persons health, feelings, sensations, intention knowledge or state of mind. - only applies applies to first hand hearsay. Example being evidence of fears expressed by a murdered wife about husband’s violence and her intention to leave him [Boral Resources (Vic) Pty Ltd] [i.e. “I am afraid that he will kill me.”]. - does not mean that evidence can be adduced of representation made by a person that he believed that some event had occurred or remembered that some event had occurred and used to prove the occurrence of the event, as it would evade the operation of the hearsay rule [Hannes]. 67 Notice to be given - s 67(1): for s 63(2), 64(2) and 65(2), (3) and (8) to apply reasonable notice in writing to each party must be given of the party’s intention to adduce evidence. - s 181 permits proof of service of notice by affidavit. - notice 5 minutes before is not reasonable [Puchalski]. It may have to be argued that had it been given there would have been changes in conduct [Singh]. - s 67(3): the notice must state the matters in s 67(3)(a) and (b). - service of affidavit or statement containing all information is sufficient [Turnbull]. However, Identifying a lengthy document within which the representation may be found without identifying the representation and the relevant part of the document will not suffice [ACCC v CC (NSW) Pty Ltd]. - s 192 deals with directions and without limiting the matters, the court must take into account the 5 matters in s 192(2), whenever the courts is considering giving leave, permission or direction [Stanoevski]. ]. If admission will result in incurable unfairness and injustice as well disrupt and compromise the proper conduct of trial a direction under s 67(4) may not be given as a different approach may well have been taken and could not be offset by a direction [Azizi]. - s 67(5): this direction may be subject to the matters in s 67(5)(a) and (b) [i.e. condition and modifications]. 68 Objections to tender of hearsay evidence in civil proceedings if maker available - to s 66(1): a party may object to the tender of the evidence in civil proceedings if a notice discloses that it is not intended to call the person who made the previous because of the matters in s 68(1)(a) or (b), no later than 21 days after the notice has been given - s 68(2): the objection must be made by giving each party written notice setting out the grounds of the objection. - s 68(3): the court may on application of the party decide on the objection at or before the hearing [see if s 192A applies]. This section provides a procedure to determine, at or before the hearing, whether adducing under s 64(2) is permitted. Court may order that the evidence be admitted under s 190 notwithstanding the objection. - s 68(4): if the objection is unreasonable, the court may order that the party objection bear the costs incurred by the other party in relation to matter in s 68(4)(a) and (b).
Part 3.2—Hearsay Division 3—Other exceptions to the hearsay rule
69 Exception: business records - “document” defined in Dict, as well as “references to documents” and “business”. - “previous representation” is defined in dictionary. - s 69(1): applies to a “document” that is “business” record”. - s 69(1)(b): applies to document that contains previous representation. - s 69(2): representation has to be recorded in the course of the business or for the purpose of the business. Requires a tracing exercise. “Directly” or “indirectly” embraces remoteness beyond second hand hearsay [Lancaster]. - s 69(5): maker of the previous representation had or might reasonably be supposed to have had personal knowledge of the asserted fact. - if it complies with the section, the document is admissible under s 69(2) to prove the contents of the representation contained within it. No need to identify the person who made the representation or person with personal knowledge [Lin], however, failure to do so may mean that who ever it was “might reasonably be supposed to” to have the necessary knowledge [HP Marcantile Pty Ltd]. - adduced through ss 48-50 and ss 146-150 in respect of proof. - s 69(3) directed to avoid admissibility of self-serving statements where proceedings are likely/probable [Vitali]. Section 69(3)(a) looks at purpose and if for the purpose of or for in contemplation or in connection with litigation it will apply [Averkin]. Section 69(3)(b) looks at the circumstances the representation was made with no question of purpose, there must be a sufficient connection, and also looks into the future [i.e. criminal proceeding] [Averkin]. Proceedings must be likely or reasonably probable [Nikolaidis]. Where litigation has began and the documents bears relevance to litigation or playing part in it then the section will be satisfied even if prepared for several purposes [Vitali]. Criminal proceedings in s 69(3)(b) need not be in existence at the time and indeed need never in fact commence, however, the investigation must be extant [Averkin]. - “Australian or overseas” proceedings is defined in Dict. - facts to be proved in relation to s 69 can be proved by affidavit (or written statement if a public document): ss 170- 173. - s 183: reasonable inferences can be drawn. The court does not have to be satisfied the person who made the representation had personal knowledge of the asserted fact it is enough that he or she “might reasonably be supposed” to have such knowledge and inferences can be drawn not just from document but from information contained in it [Rickard Constructions Pty Ltd]. - In Jackson document was admitted pursuant to s 78 as an opinion that he fell from the vertical retaining wall. It was also ague to be a business document (to get around the fact that the assertions in it were hearsay), so s 69 applied. Section 69(2)(a) did not apply because the ambulance officers (makers of the representation) did not have personal knowledge of a fall of 1.5 metres, because it happened before they arrived. Section 69(2)(b) did not apply because even if the ambulance officers (makers of the representation) had been told by the bystanders that Jackson fell in that way, the bystanders did not have personal knowledge of a fall and could not reasonably be supposed to have such knowledge, because it happened before they arrived as well. - can the “asserted fact” referred to in s 69 be a lay opinion about a fact? Or does it have to be strictly factual? HC in Lithgow did not need to decide, but seemed unenthusiastic about including this. In ACCC v Air New Zealand (No 1) statements in the minutes like: ‘it is agreed that…’ were inadmissible opinions (of the minute taker) which were not saved by s 69, because they were not “facts” within the meaning of s 69. Perram J held that an opinion as to the existence of a fact falls within the definition of an “asserted fact” (s 69(2)). Although in Lithgow the High Court said that this was “a little strained”, this was non-binding obiter dicta and therefore he did not follow this. Therefore, according to Perram J, ‘asserted fact’ at least applies to lay opinions. For example, a building site log recording that the site is ‘slippery due to rain’; a hotel incident report that a patron was ‘drunk’; a police pocket note that a person was ‘angry’ and so on. - what if you have the opinion of an expert in an email or other business document? Can the facts which the opinion is about be “asserted facts” for the purpose of s 69? es (an expert auditor’s report about the financial position of the company) [Ringow Pty Ltd], but opinions regarding law (rather than fact) do not fall within this [Sydney Attractions Group Pty Ltd v Schulman] - a69(5): “perceive” is “to observe by one of the five senses of sight, hearing, smell, taste or touch”, which is the meaning within “personal knowledge of a fact” [Jackson]. - ss 166 to 169 do not demand that admissibility under s 69 can only be affected after procedure which those sections impose has been undertaken. - s 108A permits a party against whom hearsay evidence has been admitted, without the maker of the previous representation being called, to tender evidence relevant to the credibility of the person who made the representation. - burden of proof is on the party arguing admissibility [Jackson] and, in accordance with s 142(1) is on the balance of probabilities [Calleja]. In Rickard Constructions Pty Ltd said that s 69(3) should be construed as an exception to s 69(2) and the person who opposed admissibility bore the onus to show that exception was made out. - a finding as to authenticity on which relevance depends need not be obtained before a document is found to be relevant so long as it is reasonably open to find that the document is authentic [s 57(1)(a)] or an undertaking is given that further evidence will be adduced at a later stage that will make it reasonably open to make that finding [s 57(1)(b)]. - section 183 permits reasonable inferences to be drawn from the document as well as other matters for the purposes of s 69 [Calleja]. - ss 135 to 138 can be used. The effect of s 8 is that other legislation relating to evidence of a business record are preserved, but may be excluded via discretionary provisions. See, also, s 150. 70 Exception: contents of tags, labels and writing - the hearsay rule does not apply to a tag or label attached to, or writing placed on an object (including a document) if the tag or label or writing may reasonably be supposed to been so attached or placed in the course of a business [s 70(a)] or for the purposes of describing or stating the identity, nature, ownership, destination, origin, weight of the object, or of the contents (if any) of the object. - “business” defined in Dict. - see s 171-173. 71 Exception: electronic communications - the hearsay rule does not apply to representation contained in a document recording an electronic communication so far as the representation is a representation as to one of the matters in s 71(a) to (c). - “document”, “references to documents” and “electronic communication” is defined in Dict. - ss 161, 162, 171-173 and 183. 72 Exception: Aboriginal and Torres Strait Islander traditional laws and customs - “Traditional law and customs” is defined in Dict. 73 Exception: reputation as to relationships and age - s 73, the hearsay rule does not apply to evidence of reputation concerning any of the matters in s 73(1)(a) to (d). No definition of “reputation”, but it is defined in the Macquarie Dictionary to mean “the estimation in which a person or thing is held, especially by the community or the public generally”. All that was required was that the witness knowledge was based on a conversation with one person [Ceedive Pty Ltd]. In Cvetkovic it was said that the belief must be held by more than one person before it is given the status of “reputation”. - s73(1)(d) is directed to evidence of fact of a relationship and not its quality [Mrish]. “Family history” encompasses date and place of birth, date and place of marriage, date and place of cohabitation and place of work of ancestors of witness etc [Ceedive]. - s 73(1) does not apply in criminal proceedings to evidence adduced by the defendant unless any 73(2)(1)(a) or (b). “Criminal proceeding” is defined in the Dict. “Reasonable notice” is undefined. - s 181 provides for proof of service of notice. - s 73(3), s 73(3) does not apply to evidence adduced by the prosecutor unless it tends to contradict evidence of a kind referred to in s 73(1) that has been admitted. 74 Exception: reputation of public or general rights - a public right is one that affects the community in general. Examples are a claim to tolls on a public highway, a right of ferry and the right to treat part of a fiver bank as a public landing place. - a general right is one that affects a particular class – such as the rights of a particular class of aborigines to a particular piece of land. Examples - this affects a particular class of people such as the inhabitants of a particular district, the tenants of a manor, or the owners of certain plots of lan, a right of common, customary manorial rights, the rights of corporations, a custom of mining in a particular district. - s 74(1) does not apply in criminal proceedings to evidence adduced by prosecutor unless it tends to contradict the evidence referred to in s 74(1). “Criminal proceedings” defined in Dict. 75 Exception: interlocutory proceedings - identification of a particular source who is reasonably likely to have knowledge of the relevant fact. - does not necessarily require identification of the “ultimate source” of the information. Evidence of source will be sufficient in affidavit form, but not necessarily with reference to “our client” insufficient and there must identify the particular source who is likely to have knowledge of relevant fact, but does not require the “ultimate source” [Vu]. - Interlocutory proceedings are not final, usually dealing with procedural problems and includes proceedings for injunctions pending trial of an action. Nature of proceedings is to be determined not by form [i.e. notice of motion], but by reference to the type of relief sought [Allstate Life Insurance Co]. Dismissal for want of prosecution is interlocutory as would not act a res judicata [Chapmans Ltd], but summary judgment is not [Scott MacRae Investments Pty Ltd]. Interlocutory, because the parties contemplate they may be before the same court again when a decision will be made after which they will not be before the court for the same matter [Allstate Life Insurance Co]. - s 70(1)(a) of CPA 2005 provides that a court may dispense with rules of evidence for proving any matter that is not bona fide in dispute. - s 9(2)(c) can, also, be utilised to dispense with the requirement of source [Broke Hills Estate Pty Ltd].
Part 3.3—Opinion
76 The opinion rule - s 76(1): evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed. - “Opinion” – an inference drawn or to be drawn from observed and communicable data [Allstate Life Insurance Co reaffirmed in Honeysett]. To be evidence of an opinion the court must be satisfied on the balance of probabilities that a particular inference is being, or has been, drawn [Jackson]. Must arrive at or form a conclusion or make a judgement by a process of reasoning from the facts observed [Hodgson]. Evidence in the form of a conclusion will not be caught by s 76 if it constitutes a summary or a general statement about observed facts and does not involve the drawing of inferences from those facts [Britt]. Evidence of what the person would have doen in a hypothetical situation is not opinion [Allstate Life Insurance Co and Seltsam Pty Ltd and Fitness Australia Limited]. A distinction must be drawn between evidence of “experience” and “opinion”, as even if experience is based in part on information provided by others unless there are inferences drawn from that experience s 76(1) does not apply [Oswal]. In Smith identification of accused by police officers from photographs was not opinion but was direct evidence [Smith], but in HC Kirby regarded it as opinion. - If not adduced to prove the existence of fact about which the opinion was expressed it does not apply and careful direction to the jury may be necessary of how it can and cannot be used. - see exceptions set out within section. - s 76(2): s 76(1) does not apply to evidence of an opinion contained in a certificate or other document given or made under regulations made under at act other than the EA to the extent to which the regulations provide that the certificate or other document had evidentiary effect. - ss 289I and 306V(1) of CPA 1986. 77 Exception: evidence relevant otherwise than as opinion evidence - using an opinion to prove something other than the truth of the fact which the opinion is about and if admitted becomes evidence for all purposes. - opinion evidence may be relevant for multiple purposes. - if relevant for another purpose, the opinion rule does not apply and therefore the evidence can also be used to prove the opinion (like s 60). - when would evidence of an opinion be admitted for a purpose other than proof of the fact about the existence of which the opinion was expressed? - in Whyte mother gave evidence that complainant said, “a man tried to rape me”. Spigelman CJ held that it was an opinion, but that s 78 (lay opinion) applied. However, Odgers SC comments that s 77 would apply: The prior consistent statement is relevant to enhance the credibility and of the complainant, and being admitted on that basis, s 77 applies (the opinion rule therefore does not apply), and the evidence can be used to prove the opinion. - subject to discretionary exclusions. 78 Exception: lay opinions - Examples are “opinions” as to identity of individuals, age of person or the speed at which something was moving, whether someone was under the influence. - In Jackson the question was did Mr Jackson fall over the vertical drop (now protected by a fence) because he was approached the drain from the top of the park (in which case that wall and the fall was not obvious) or did he somehow slide down the sloping side surfaces? A statement of lay opinion in a business record, which is admissible under s 69, still must comply with the opinion rule [ACCC v Air New Zealand Ltd]. In Jackson in relation to the opinion rule, the High Court held that the note also did not comply with ss 55 and 78(a) or (b). The representation contained in the note was so ambiguous that it could not rationally affect the assessment of the probability the existence of a fact about a fall from the exposed vertical face. The statement does not say “? Fall from vertical head wall….” Whatever the actual extent of the fall, the impugned representation referred to a fall of 1.5m onto concrete. It does not say where the fall took place.” But the written statement was so ambiguous that it had no probative value: it supported neither the theory of a fall from the vertical head wall nor the theory of a fall from one of the sides, and for that reason did not satisfy s 55(1). It was not lay opinion because for s 78(a) it must be possible to extract from the form of what the person stating the opinion said (construed in context) that the opinion is about a ‘matter or event and that it is “based” on what the person stating the opinion saw, heard or otherwise perceived’ about the matter or event. Section 78 only applies to opinions given by those who actually witnessed the event about which the opinion was given Here, the ambulance officers did not hear or see the fall, so their opinion could not have been based on it. Also, did not satisfy s 78(b) the function of s 78 is to permit the reception of an opinion where ‘the primary facts on which it is based are too evanescent to remember or too complicated to be separately narrated.’ The evidence is that the person appeared to be drunk or middle-aged or angry, it is impossible in practice for the observer to separately identify, remember and narrate all of the particular indications which led to the conclusion of drunkenness, middle age or anger. - “necessary” in s 78(b) meant that - opinion could not be admitted unless it was the only way to obtain an account of the ambulance officers‘ perceptions. That is, it means “the only way” to overcome some “incapacity” in the witness “to perceive, to remember what they had perceived or to say what they had perceived about it. But if they had been called they might have been able to give more evidence. Exclusion of that possibility was a pre-condition to admissibility [Jackson]. 78A Exception: Aboriginal and Torres Strait Islander traditional laws and customs 79 Exception: opinions based on specialised knowledge - must establish mandatory requirements on the balance of probabilities [s 142] that: 1. the person has “specialised knowledge”; 2. that specialised knowledge is based on the person’s training study or experience; and 3. the opinion is “wholly or substantially” based on that knowledge [Harrington-Smith]. Three stage test rather than 2 stage test as in Dasreef but essentially the same. - compare s 144 [judicial notice] and FCR O 10, r 1(2)(j) [submission]. Dasreef and Honeysett: 1. Person has “specialised knowledge” that is based on the person’s training, study or experience. 2. opinion is wholly or substantially based on that specialised knowledge - It has to be “knowledge” rather than just “belief” or speculation and it must be “specialised”, rather than generally held in the community. - specialised knowledge” is knowledge which is outside that of persons who have not by training, study or experience acquired an understanding of the subject matter and does not have to be scientific or technical as a person without formal qualification may acquire this knowledge [Honeysett]. “Knowledge” means “acquittance with facts, truths, or principles” as from study and investigation [Honeysett]. Honeysett referred to US case if Daubert which suggested that “knowledge” connoted more than subjective belief or unsupported speculation, it applies to any body of known facts or any body of ideas inferred from such facts or accepted as truths on good grounds. The focus must be on “specialised knowledge” not reliability [Tang], however, in HG some members of the High Court required expert testimony to meet a standard or evidentiary reliability and it must be established that there is a reliably body of knowledge and experience [Velevski]. The reference to Daubert [US authority] in Honeysett suggest requirement for validation of supposed knowledge. However, in Tuite it was noted that there was no room in s 79 for a test of evidentiary reliability as a condition of admissibility, where the “good grounds” requirement was adopted without explaining what it entailed. - must differentiate between the assumed facts upon which the opinion is based and the opinion in question and the wittiness must identify the expertise he could bring to bear with the reasoning process be exposed or made transparent [HG and Honeysett]. The lack of reasoning may point to lack of any sufficient connection between the opinion and the specialised knowledge [Dasreef and Morgan]. - requirement that reasoning process be made transparent can be met in many case very quickly and easily [i.e. doctor describing qualifications and experience and identified the subject matter [Dasreef]. A general statement that the opinion are based wholly or substantially on the knowledge and lists mere person’s expertise and qualifications at a general and abstract level will not suffice [Fontera Brands (Australia) Pty Ltd]. - in Honeysett held that his opinion was not based on his knowledge of anatomy, but just on his observations of the tape, dressed up in scientific language. The jury could have ascertained these facts themselves (remember Smith] - it will be necessary to establish that the person purporting to have knowledge does in fact posses such knowledge [Hamod] with respect to each opinion sought to be given [Pollard]. - in joint reports it may not be possible to tell from the report were prepared by whom [Cooke]. - the connection between the specialised knowledge and opinion applies to each opinion provided. And an expert may be able to give an opinion on some issues but not others. - In Dasreef: 1. the terms of s 76 direct attention to the fact that is sought to be proven by use of opinion evidence – you must identify why the evidence is relevant. This requires identification of the fact in issue that the party tendering the evidence asserts the opinion proves or assists in proving. 2. opinion must be presented in a form that makes it possible to tell whether it is based on specialised knowledge [HG]. 3. must explain how the field of specialised knowledge applies to the facts assumed or observed so as to produce the opinion propounded [Makita]. at [37]: “the admissibility of opinion evidence is to be determined by application of the requirements of the Evidence Act rather than by any attempt to parse and analyse particular statements in decided cases divorced from the context in which those statements were made. Accepting that to be so, it remains useful to record that it is ordinarily the case, as Heydon JA said in Makita [(2001) 52 NSWLR 705 at 744 [85]], that “the expert’s evidence must explain how the field of ‘specialised knowledge’ in which the witness is expert by reason of ‘training, study or experience’, and on which the opinion is ‘wholly or substantially based’, applies to the facts assumed or observed so as to produce the opinion propounded… That a specialist medical practitioner expressing a diagnostic opinion in his or her relevant field of specialisation is applying “specialised knowledge” based on his or her “training, study or experience”, being an opinion “wholly or substantially based” on that “specialised knowledge”, will require little explicit articulation or amplification once the witness has described his or her qualifications and experience, and has identified the subject matter about which the opinion is proffered…” - Firstly, in order for Dr Basden to proffer an admissible opinion about the numerical or quantitative level of Mr Hawchar’s exposure to silica dust (rather than the appropriate safety measures) it would have been necessary for the party tendering his evidence to demonstrate first that Dr Basden had specialised knowledge based on his training, study or experience that permitted him to measure or estimate the amount of respirable silica to which a worker undertaking the relevant work would be exposed in the conditions in which the worker was undertaking the work. - Secondly, it would have been necessary for the party tendering the evidence to demonstrate that the opinion which Dr Basden expressed about Mr Hawchar’s exposure was wholly or substantially based on that knowledge. - Dr Basden gave evidence about his experience but did not suggest he had experience enabling him to give anything other than a ballpark figure estimating amount of silica a worker would be exposed to using an angle grinder as in the photographs. - In his written report, he admitted that he had only seen the use of an angle grinder in this way once before, and gave no evidence that he had measured directly or inferentially the amount of dust to which an operator would be exposed. - But the primary judge used it to prove such a calculation. - The Court held that in the circumstances, there was no basis for the judge to conclude that the quantitative opinion of Dr Basten was based wholly or substantially on specialised knowledge, arising out of training, study or expertise. - Lack of connection goes to admissibility not weight. Basis rule: - The common law “basis rule” - was a rule that required you to prove the assumed facts and other facts relied upon by the opinion, otherwise the opinion would be inadmissible (rendering s 60 useless?). In Dasreef court came to different views. The majority appear to reject the continuing operation of the “basis rule” as a requirement for admissibility of the opinion, but the reasoning is not altogether clear, and this appears to be obiter. Haydon J: 1. The expert must disclose facts and assumptions that the opinion is based upon – “assumption identification rule”. 2. The facts and assumptions must be proved for the opinion to be admissible – “basis rule” or “proof of assumption rule”. 3. The facts and assumptions must be related to the opinion – “statement of reasoning rule” - proof of assumption rule - not abolished by Act - failure to comply with rule makes opinion irrelevant. The court may find the opinion relevant, however, if the evidence already tendered of the primary facts, taken with further evidence to be admitted at a later stage, makes it reasonably open to make a finding that they exist: s 57(1). - the facts on which the opinion is based should be identified, the reasoning process leading to the formation of the opinion must be exposed [Ocean Marine Mutual Insurance Assn (Europe) OV emphasised in Makita at [85] listing the requirements for admissibility [obiter dicta]. Makita has been qualified, nonetheless, the proposition that the reasoning process must usually be demonstrated so that the court can be satisfied that the opinion is based wholly or substantially on the expert’s specialised knowledge and is not bare “ipse dixit” has been repetidly affirmed [Hevi Lift (PNG) Ltd]. Summary of Dasreef: - witness who gives the evidence must have ‘specialised knowledge based on the person’s training, study or experience’. - witness must identify the assumptions. - witness must explain how the field of specialised knowledge applies to the facts and assumptions. - proof of the factual basis for the opinion (proof of assumption rule/basis rule)?? (Heydon J only) To avoid problems, you should do so if at all possible. The proposition in Makita that facts ought to be proved in not good law, as in Dasreef “the basis rule” was described as “a rule by which opinion evidence is to be excluded unless the factual bases upon which the opinion is proffered are established by other evidence” and accepted that s 79 does not incorporate “the basis rule” and issues of this type are left to the discretions. - there are a number of cases following Dasreef that adopt the basis rule as a requirement, not a requirement and a matter of weight. There are conflicting view [see Nicholls]. See also Kyluk and Fuller. Langford accepted that assumptions need not be independently proved and will be admissible unless excluded for another reason, such is failing to meet the test of relevance. Haydon J’s view in Makita involve questions of degree and should go to weight [Sydneywide Distributors Pty Ltd]. Reliability? - in Tuite applicant challenged the admissibility of the DNA evidence on the ground that the new methodology was not — or had not been shown to be — sufficiently reliable for use in criminal trials: the methodology was largely untested, it was said, and had not been generally accepted by the forensic science community. Is reliability of the expert evidence a criterion of admissibility of opinion evidence under s 79(1) or is reliability to be assessed in deciding whether the evidence should be excluded? The language of s 79(1) leaves no room for reading in a test of evidentiary reliability as a condition of admissibility.” “The question of the reliability of opinion evidence falls to be determined as part of the assessment which the Court undertakes for the purposes of s 137”. However, where evidence is based on new science the party proposing to rely on the evidence will need to establish that the underlying science is sufficiently reliable to be admitted in a court of law [Tuite], however, this may no longer be appropriate in light of IMM, with strict application of IMM suggesting that failure to establish the facts upon which opinion is based will not affect the assessment of probative value for the purposes of ss 135 and 137. - see Schedule 7, r 31.23 UCPR and r 75.3J SCR 1970 in relation to criminal proceedings and Wood re obligations of expert witness. Some authorities suggest that failure to comply with the code will not render an opinion inadmissible [Wood]. Hearsay rule and the basis of opinion - if the basis of opinion is in hearsay form it is not caught by s 59, as it is not adduced to prove the existence of the facts asserted by representation and is relevant and admissible to explain the assumptions on which the opinion is based and can later be used pursuant to s 60 to be used to prove existence of asserted facts subject to s 136 [Harrington Smith]. - ss 135 - 137. Must proceed on the basis that the basis that the evidence is accepted, and, thus, to be regarded as credible and reliable [IMM]. - s 177 allows expert evidence to be given by certificate. - s 183 permits court to draw inferences, but this provision does not dispense with proof of matters in s 79 before opinion evidence become admissible [Ocean Marine Mutual Insurance Assn (Europe) OV]. - expert evidence generally requires careful direction so that jury can assess and apply properly [Valevski]. Where evidence has been given about ultimate issue, jury should be advised it is their role to determine that issue [Idoport Pty Ltd]. 80 Ultimate issue and common knowledge rules abolished - evidence of an opinion is not inadmissible only because it is about a fact in issue or ultimate issue [s 80(a)] or a matter of common knowledge [s 80(b)] [Idoport Pty Ltd]. - “fact in issue or an ultimate issue” is a matter in issue in the trial as determined by substantive law and pleadings [i.e. was the defendant negligent] and should not be interpreted as any fact in dispute. - if wrongly admitted such evidence may divert the jury from their proper task [Murphy] - ss 135 and 137 discretions may be exercised. If tribunal is in a good position to make the relevant determination without expert assistance, the risk that it will unnecessarily defer to expert opinion supports the view that such evidence should be excluded due to its probative value being outweighed by the danger that the evidence might cause or result in undue waste of time [Smith]. 81 Hearsay and opinion rules: exception for admissions and related representations - the hearsay rule and the opinion rule do not apply to evidence of an admission. If the representation is an opinion about a fact, but is also an admission, s 81 will allow the evidence to be admitted not withstanding s 76. - “admission” and “representation” defined in Dict. Can be any acknowledgement of some relevant fact that tends to establish guilt or liability [i.e. if a body was found at a particular pub, a statement by D that she was at the pub on the night in question would be an admission because it is circumstantial evidence of her guilt]. May be inferred from conduct such as running away [Knight] May be an implied admission, in that a lie may be capable of revealing consciousness of guilt of a charged offence and regarded as admission [Esposito] [i.e. “I was not at the pub, I was at the movies”) which is on its face exculpatory may be an implied admission if used to show a consciousness of guilt (in circumstances where you have other evidence that clearly shows he/she was not at the movies that night)]. Other example is evasive answering questions. - In Horton making of the statement tended to show that the accused was not particularly affected by the amount of alcohol she had consumed, thus weakening her “defence” of intoxication and was adverse. A statement which is exculpatory on its face is not a representation which is adverse to the interests of the accused: it is the addition of other circumstances which may import that quality. It is not the representation, but the proof of its untruth, which is or may be adverse [R v GH]. - must be adverse to the party’s interest in the outcome of proceeding rather than at the time it is made [Rahme]. - Lack of consent for identification parade or consent for search are not admissions [Leonard]. - admission can be by conduct and be reasonably inferred [i.e. destroying documents or lying or misleading statements] [Kuhl and Horton]. - s 86 – deals with unsigned records of interview. - s 281 of Criminal Procedure Act 1986 (NSW) - requires an ERISP (Electronically Recorded Interview of a Suspected Person) be used for an indictable offence. - s 165 - Court can give a warning as to the reliability of the evidence (see sub-s (1)(a), (f)). - standard of proof for finding “that a particular person made the admission” is the prima-facie standard (that is, the court “is to find that a particular person made the admission if it is reasonably open to find that he or she made the admission”). Sections 84, 85 and 86 render an admission inadmissible unless certain factual circumstance are satisfied on the balance of probabilities [s 142]. - personal knowledge or belief in the fact admitted is not required [Hoy Mobile Pty Ltd] - pursuant to s 81(2), the hearsay rule and the opinion rule do not apply to evidence of a previous representation that was made in relation to an admission at the time the admission was made, or shorty before or after that time [s 81(2)(a)], and to which it is reasonably necessary to refer in order to understand the admission [s 81(2)(b)]. The statements have to be “part of a connected series of statements which should have been available for consideration by the jury as forming one narrative” [Singh]. Once admitted can be used for other purpose including to prove the fact asserted, but exculpatory representations may have less weight then inculpatory parts [Mule]. Representations that are not adverse to the person’s interest are not admissible under s 81, as they are not adverse, but may be admitted under s 64(3) or 66(2) if the person has been called or is called to give evidence or may be admissible under s 108. There is a duty on the prosecution as a matter of fairness to tender evidence of largely exculpatory statements [Singh]. - if the admission is contained in document, the document will not be admissible unless (a) or (b) of Clause 6 of Part 2 are satisfied. 82 Exclusion of evidence of admissions that is not first-hand - limits the “admissions” exemption to firsthand hearsay, but not in criminal proceedings. - hearsay exception created by s 60(3) does not apply to evidence of an admission in criminal proceedings. - a document containing a previous representation by X that D had made the admission would not be protected by s 81 from application of the hearsay rule as it is not a document in which admissions are made but are recorded [Daniel]. 83 Exclusion of evidence of admissions as against third parties - s 81 does not prevent the application of the hearsay rule or the opinion rule to evidence of an admission in respect of a case of a third party. - s 83(2), the evidence may be used in respect of the case of a third party if that party consents. - ensures that admission by D1 is not used against D2 in the proceedings unless D2 consents. This is because D1’s admission is technically not an admission in the trial of D2. D1’s admission can be admissible in D2’s case but not D1’s because of factors requiring its exclusion pursuant to s 84. - in addition to the admission, consent can be given in respect of evidence of previous representation admitted or admissible pursuant to s 81(2) to which it is reasonably necessary to refer to understand the admission [Abernethy]. - s 83(3): consent cannot be given in respect of part only of the evidence. The entire admission is admissible. - exclusionary rules in ss 84, 85 and 90 do not apply, but the discretion in s 138 does. - s 83(4), third party means a party to the proceedings concerned other than the party made the admission [s 83(4)(a)] or adduced the evidence [s 83(4)(b)]. 84 Exclusion of admissions influenced by violence and certain other conduct - s 84(1): evidence of an admission is not admissible unless the court is satisfied that the admission, were not influenced by violence, oppressive, inhuman or degrading conduct, whether towards the person who made the admission or towards another person [s 84(1)(a)] or threat of conduct of that kind [s 84(1)(b)]. - not limited to physical conduct and can encompass mental and psychological pressure [Higgins]. in R v JF it was stated that conduct should be of a relatively significant level of impropriety. - irrelevant who engages in the conduct [i.e. investigating official] [R v GH and Habib as conduct may occur prior to interview] and prosecution will have to demonstrate that the conduct had no casual effect on making the admission. - reliability of admission is not relevant [R v JF] and it is not concerned whether the truth of the admission was affected [Deacon]. - “there must be some evidence that indicates through legitimate reasoning that there is a reasonable possibility an admission or its making were influenced by proscribed conduct.” [Habib]. - s 84(1) only applies if the party against whom evidence of the admission is adduced has raised in the proceedings an issue about whether the admission or its making were so influenced [i.e. accused must raise an issue]. No need to call or give evidence on voir dire, but may be necessary and prosecution than discharge the onus. - see s 189 re voir dire. - s 142(1) the burden of proof is on the balance of probabilities. Once s 84(1) conduct is identified, the onus is on the respondent to establish that the conduct did not occur or if it did, it did not influence the admission [Habib]. - ss 85, 90 and 138 may result in exclusion. Section 8 preserves other legislative provisions. - not a discretion, but mandatory, if the Court is satisfied there is proscribed conduct it must reject the evidence. 85 Criminal proceedings: reliability of admissions by defendants - only applies in criminal proceedings and only to evidence of an admission made by the defendant to, or in the presence of, an investigating officer who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an office [s 81(1)(a)] or as a result of an act of another person who was, and the defendant knew or reasonably believed to be, capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued [s 85(1)(b)]. - official could be investigating any offence and does not have to be performing functions in connection with the offence for which the defendant is subsequently charged. Must be a linkage to the “investigation” of an offence and if a function is performed unrelated to or not connected with the investigation of the offence this provision will not apply [Naa]. - “criminal proceeding”, “police officer” and “investigating official” is defined in Dict. Does not usually apply to undercover police officers who obtain confessions under orders. See s 138 and 139. - s 85(2): evidence of an admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected. - means “the circumstances of and surrounding the admission” not the general circumstances of the evens said to form part of the offence [Rooke]. The question is not whether the circumstances did in fact adversely affect the truth, but rather whether they were likely to do so. The actual truth of admission should not be considered unless raised by the defendant pursuant to s 189(3). - s 85(3) requires consideration of personal characteristics and conditions of defendant independently of actions taken by police, and these characteristics or conditions are not confined to those known to the investigating official. - s 85(3), without limiting the matter the court can take into account for the purposes of s 85(2), the court is to take into account the matters in s 85(2)(a) and (b)(i) and (ii)]. - defence must satisfy that the admission was made “to, or in the presence of, an investigating official” under s 85(1)(a) or “as a result of an act of” the person referred to in s 85(1)(b). At that point, if the question as to circumstances arises the prosecution will bear the onus of proof under s 85(2) [Esposito]. See 189. - s 142(1), the defence has to discharge its burden on the balance of probabilities [Cook] and then the prosecution bears the onus under s 85(2) [Soteriou]. - s 8 preserves provisions of other legislation. 86 Exclusion of records of oral questioning - s 86 only applies in criminal proceedings and only if an oral admission was made by the defendant to an investigating official in response to a question put or a representation made by the official. - s 86(2), a document prepared by or on behalf of the official is not admissible to prove the contents of the question, representation or response unless the defendant has acknowledged that the document is a true record of the question, representation or response. - “document”, “criminal proceeding”, “police officer” and “investigating official” is defined in Dict, but that is subject to s 86(4). - where there is no acknowledgement an official will only be permitted to testify as to admissions using the documentary record for the purposes of refreshing memory. Where such documentary evidence is admissible pursuant to other legislation the effect of s 8 is that s 86 will not apply. Section 281 of the CPA 1986 (NSW) provides that evidence of an “admission” is not admissible unless tape-recorded, in the absence of a “reasonable excuse”. s 86 is in addition to s 281. - s 86(3): acknowledgement must be made by signing, initialling or otherwise marking the document. 87 Admissions made with authority - s 87(1): for the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find any of the matters in 87(1)(a) to (c). - does not override the discretionary exclusion pursuant to s 135 even though it states the court “is to admit the representation” [Ignot Capital Investments Pty Ltd]. - s 87(1)(a) refers to authority to make “statements” and not “admissions” and authority may be express or implied. Statements made by a solicitor within the ordinary course of solicitor’s business acting for a client would be made with implied authority [Liu]. - 87(1)(b) does not require for the court to be satisfied that it is reasonably open to find that the person who made the previous representation had actual ostensible authority and is an alternative pathway to admissibility, as all that is required is that it is “reasonably open” [Helicopter Resources Pty Ltd]. - s 87(1)(c), “common purpose” involves the concept of a combination or some form of preconcert formed between two or more persons to do an act or acts of a particular kind [Landini]. Representation made by a person in furtherance of a common purpose extraneous to the proceedings will or may not pass the “relevance” test [May]. - s 87(2): the hearsay rule does not apply to a previous representation made by a person that tends to prove any of the matters in s 87(2)(a) to (c). Such a representation cannot be used to prove any of the elements of s 87(1)(c), but may be used to prove the existence of some relevant. - “Reasonably open to find” excludes the civil standard [see s 142 and TCN Channel 9 Pty Ltd]. 88 Proof of admissions - s 88, for the purpose of determining whether evidence of an admission is admissible, the court is to find that a particular person made the admission if it is reasonably open to find that he or she made the admission. Only relates to whether the conduct contended to constitute an admission (by a person who became a party in the proceeding) did in fact occur, and not to whether such conduct, if it occurred, is an “admission”. 89 Evidence of silence generally - s 89(1), subject to s 89A, in a criminal proceeding, an inference unfavourable to a party must not be drawn from evidence that the party or another person failed or refused to answer one or more questions, or to respond to a representation, put or made to the party or other person by an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence. - “investigating official” and “criminal proceedings” are defined in the dictionary. The person in relation to whom the inference from silence is sought to be drawn does not have to be the defendant, because to do so would be unfavourable to the defendant [Jones]. - s 89(2), evidence of that kind is not admissible if it can only be used to draw such an inference. If the evidence can legitimately be used in another way, it will be admissible for that use under s 89(2), subject to discretionary exclusions [i.e. a refusal to answer questions may be relevant to the defendant’s state of mind when making admissions or adducing the evidence to demonstrate that the defendant was given an opportunity to respond to allegations against him or her or another purpose such as that the police conducted an investigation]. - s 89(1) does not prevent use of the evidence to prove that the party or other person failed or refused to answer the question or to respond to the representation if the failure or refusal is a fact in issue in the proceeding. - s 89(4): “inference” includes an inference of consciousness of guilt [s 89(4)(a)], or an inference relevant to a party’s credibility [s 89(4)(b)]. 89A Evidence of silence in criminal proceedings for serious indictable offences - s 21 of the Interpretation Act 1987 defines “serious indictable offence” to mean an “indictable offence that is punishable by imprisonment for life or for a term of 5 years or more”. - s 89A(1): in a criminal proceeding, for a serious indictable offence, such unfavourable inferences may be drawn as appear proper from evidence that, during official questioning in relation to the offence, the defendant failed or refused to mention a fact that the defendant could reasonably have been expected to mention in the circumstances existing at the time, and that is relied on in his or her defence in that proceeding. - it is for the judge to determine what inference would be rationally open to be drawn even in a proceedings with a jury with the availability of other influences to be considered on a void dire. Warnings under s 165 may be required. - see own notes as to the steps that need to be satisfied for highlighting. - in Hogg, the true reason for the defendant’s silence was that he relied on legal advice not to talk, and it was for the crown to establish that the true reason for his silence was not because he had been advised to do so. - s 89A(2), s 89A(1) does not apply unless 89A(2)(a) to (d) are satisfied. - s 89(A)(3), it is not necessary that a particular form of words be used in giving a special caution. - s 89A(5): s 89A does not apply if 89A(5)(a) or (b) apply. - s 89A(5)(b): is a matter for the trial judge. However, may be appropriate to direct the jury that they could not return a verdict of guilty on the basis alone of an unfavourable inference from silence. - s 89A(7): nothing in s 89A precludes the drawing of any inference from evidence of silence that could properly be drawn apart from this section. - s 89A(8): the giving of a special caution in accordance with this section in relation to a serious indictable offence does not of itself make evidence obtained after the giving of the special caution inadmissible in proceedings for any other offence (whether or not a serious indictable offence). - s 89(A)(9) for definition of “official questioning” and “special caution”. - voir dire with respect to requirements [s 189]. - s 142 does not directly apply as s 89A is not directly concerned whether evidence “should be admitted or not admitted”, but rather whether a particular inference should be drawn from evidence. However, likely the courts will apply “balance of probabilities” test. Onus is on the prosecution to establish 89A(2)(a) and (b), 89A(4), 89A(2)(c), 89A(2)(d), and 89A(5)(a). - s 89A(1) requirements are matters for the jury to be satisfied. 90 Discretion to exclude admissions - s 90: in a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if the evidence is adduced by the prosecution [s 90(a)], and having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence [s 90(b)]. In EM Gleeson CJ and Heydon J: - police impropriety, illegality, and the reliability of the admission are relevant factors to the exercise of the discretion. - making an admission on incorrect assumptions can be unfair. - s 90 is so general that it would not be possible in any particular case to mark out the full extent of its meaning and likely to be fact specific. Gummow and Hayne JJ: - the question requires examination of the circumstances of the making of the admission and whether they would effect the fairness of use of the evidence at trial (not fairness at the time at which the representation was made) [Em]. - section 90 engages as a ‘safety net’ provision after other provisions have been exhausted:[109]. Consequently, factors considered for other exclusions should not be considered when applying s 90, as it is essentially the last cab in the rank [Em]. If discretion under s 90 will fall to be considered only after applying the other, more specific, provisions of the EA [i.e. 84, 85 and 138], with questions of the reliability of what was said to police or other persons in authority, and what consequences follow from illegal or improper conduct by investigating authorities are not to be dealt with under s 90 [Em]. s 90 is affected by the operation of the other sections in the EA and should not engage with the factors engaged with those sections. The questions with which those other sections deal (most notably questions of the reliability of what was said to police or other persons in authority, and what consequences follow from illegal or improper conduct by investigating authorities) are not to be dealt with under s 90 [Em]. - consider the following 84, 85, 86, 137, 38, 139 and 281 of CPA 1986. - thus, s 90 is not to be considered where other sections could be enlivened. In other words the matters dealt with by other sections – voluntariness, reliability are not matters to be considered when assessing “fairness” under s 90. - reliability should not be a factor, as that is dealt with in s 85, unless representation was not made during formal questioning [Em]. For example: 1. If the conduct is improper, but on the balancing test in s 138, it is allowed in, according to the Hayne/Gummow approach, you cannot seek to rely upon s 90. But if the conduct was not improper, s 138 is not enlivened and so you can test s 90. 2. If the admission made as a result of questioning is potentially unreliable (and s 85 otherwise applies), but the Court finds that it is not, then you cannot seek to rely upon s 90. But if the questioning was not conducted by an investigating official, s 85 is not enlivened (even though the admission is unreliable), so you can rely upon s 90. Kirby J: - focused on the fact that only half of the caution was given in the park. This was insufficient. - police engaged in a course of conduct deliberately aimed to deceive the appellant into believing that he was having an ‘off the record’ conversation - compared this case to Swaffield. Even if the police conduct was not illegal, it was improper. In Swaffield Toohey, Gaudron and Gummow JJ said: “Unreliability is an important aspect of the unfairness discretion but it is not exclusive.” Thus: - Gleeson CJ and Heydon J allowed for a more expansive formulation of s 90 in the sense that matters considered under other provisions of the Evidence Act can inform or predicate unfairness. This is consistent with the common law unfairness discretion. - Gummow and Hayne JJ appear to have construed s 90 as a “last resort” or safety net provision. That is, the identified unfairness can not be one that enlivens the consideration of another exclusionary Power, albeit unsuccessfully. - Kirby J actually found unfairness in these circumstances. - if issues relating to ss 84, 85 and 138 arise, pursuant to the Gleeson/Heydon approach, if appeal to these sections is unavailing, these issues could still be considered under s 90 and under Hayne/Gymmow it cannot be. - see GAC, Riley and Bin Sulaeman as to the judicial approaches to same. See Cooney: “consideration which is highly relevant to s 138 and regard to those matters through the prism of s 90 by the primary judge in my view amounts to error which engages House v The King review.” [i.e. where it was held that a judge had erred in having regard to police conduct through s 90 rather s 138]. DRF followed Gleeson CJ approach. Both arguments supported in subsequent decisions but Gleeson/Heydon view is favoured. Thus, Em should be taken to hold the following view: 1. s 90 may be relied on as an alternative to reliance on any of the other specified sections; and 2. the interpretation of s 90 is not affected by the more particular or specific provisions of the EA. - s 139, which presumes “impropriety”, for the purposes of s 138, if no caution prior to questioning is made with any admission excluded [Sharp]. - In Em only warned that “you have a right not to say or do anything” but deliberately left out the second part of the caution “anything you say or do may be used in evidence” on the basis that if he they did not, he would not have talked to the police. Held that it was not inappropriate on the basis that there was “no evidence that he turned his mind to the question again, or that he had any doubt about it which might cause him to question it, or that he had any desire to search for confirmation” [Em compare Simmons where it was initially believed that what was said would not be recorded, but a right of silence was exercised when interviewed]. - failure to “caution” will not require exclusion and where questioning is done for by an investigator who is not an investigating official, for example, insurance investigator or investigator of an employer, such a situation will not be “official question” [Higgins]. - s 11(2) powers may, also, apply to avoid an unfair trial. - on the defence to demonstrate that it is unfair [Em], and pursuant to s 142 is on the balance of probabilities.
Part 3.5—Evidence of judgments and convictions
91 Exclusion of evidence of judgments and convictions 92 Exceptions 93 Savings - s 91(1): evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding. - prevents admission (with exceptions) of evidence of a judgment, decision or finding of fact in a proceeding, to prove that same facts in subsequent proceedings. - evidence can still be relevant and admitted for another purpose (but s 60 will not thereby make it admissible to prove the truth of the facts). - does not prevent admission of the fact of a conviction to prove that the conviction took place in civil proceeding provided s 92(2)(a) to (c) exist, to which the hearsay rule and the opinion rule do not apply. But cannot be used to prove the facts underlying the conviction (i.e. the events giving rise to the conviction). Also does not prevent use of a document for proof of the death, or date of death, of a person, or the due execution of a testamentary document, to which the hearsay rule or the opinion rule do not apply. - merely prevents the judgments from being tendered for the purpose of proving the existence of those facts [Ainsworth], but not to establish the terms of a judgement and its effect [Crawley], as recognised in s 93 [i.e. factual findings]. - “Australian or overseas proceeding” is defined in Dict. - s 178 and 179 provides for certificate evidence. - burden of proof is on the convicted person if he or she disputes the facts sought to be proved by the conviction [Gonzales]. - also see ss 166 and 167.
Part 3.6—Tendency and coincidence
94 Application - s 94(1): this Part does not apply to evidence that relates only to the credibility of a witness. - example would be prior convictions for offences of dishonesty of a witness giving evidence in motor vehicle accident proceedings, and admissibility will turn to Part 3.7, however, where evidence is relevant not only to credibility of the witness, but also to affect an issue, this Part will apply and if admitted as “coincidence” or “tendency”, Part 3.7 will not apply [see s 101A]. If it is not admissible under this part, it will be subject to Part 3.7 as “credibility evidence”, and if admitted as “credibility” evidence it cannot be used as “tendency” or “coincidence” evidence [s 95]. - s 94(2): this Part does not apply so far as a proceeding relates to bail or sentencing. - s 94(3): this Part does not apply to evidence of the character, reputation or conduct of a person [s 94(3)(a)], or a tendency that a person has or had [s 94(3)(b)] if that character, reputation, conduct or tendency is a fact in issue. - “fact in issue” Is issue in the proceedings defined by substantive law and pleadings or “ultimate issue” [Allam]. - s 94(4): to avoid doubt, any principle or rule of the common law or equity that prevents or restricts the admissibility of evidence about propensity or similar fact evidence in a proceeding is not relevant when applying this Part to tendency evidence or coincidence evidence about a defendant. - to s 94(5), in determining the probative value of tendency evidence or coincidence evidence for the purposes of section s 97(1)(b), 97A(4), 98(1)(b) or 101(2), it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or contamination. Consistent with Bauer in that the risk of contamination, concoction or collusion generally only goes to the credibility and reliability of tendency evidence and is therefore an assessment that must be left to the jury, rather than a factor that the court can consider in determining probative value, unless the risk is so great that it would not be open to the jury to rationally accept the evidence [consistent with IMM], but the qualification no longer applies due to amendment at “it is not open to the court” [i.e. precludes a finding of lack of significant probative value because of factors stated in section]. 95 Use of evidence for other purposes - even if the evidence is admitted for another purpose, if you want to adduce it for a tendency or coincidence purpose, you must comply with this part [i.e. s 60]. - may initially be admitted for another purpose, subject to subsequent ruling to be used in the prescribed way [Cornell]. - directions to jury may be appropriate. 96 Failure to act - reference in this Part to doing an act includes a reference to failing to do that act. 97 The tendency rule - 2 elements: 1. Notice is given (this sometimes means that the admission of this evidence is dealt prior to the main hearing - s 192A); and 2. Evidence has significant probative value. - “tendency evidence” is defined in the Dict. - “person” includes a corporation [Trifunovski]. - evidence is tendency evidence if admitted to prove a tendency. The same evidence, admitted to prove something else, is not tendency evidence. need to decide what purpose or use is sought to be made of the evidence. - question is really whether some propensity is what is being sought to be proved, or whether you are asking a jury to reason from past conduct or conforming behaviour in the instant case. - tendency evidence does not have to establish a tendency to commit the crime (or cause of action); a tendency to act in a manner relevant to the crime, such as use of violence, is sufficient to be described as tendency evidence. If evidence is to be admitted, it will be necessary to demonstrate that the evidence is relevant to a fact in issue by a process of reasoning which does involve the drawing of an inference from evidence of tendency to conforming behaviour [Jacara Pty Ltd]. Question is whether the evidence of conduct is relevant to a fact in issue via propensity: insofar as the evidence establishes the propensity of the relevant person to act in a particular way [Jacara Pty Ltd]. In order to avoid application of the provision it is not sufficient to assert that the evidence is relevant to prove something other than “tendency”, such as a “system” or “habit”, but to demonstrate that the evidence is relevant to a fact in issue by a process of reasoning which does not involve the drawing of an inference from evidence of “tendency” to conform in behaviour [Jacara Pty Ltd]. - For the purpose of s 97, in determining whether the evidence has significant “probative value”, the test is: 1. Considering the extent to which the evidence supports the tendency [i.e. whether the evidence, by itself or together with other evidence, strongly supports proof of a tendency]. 2. Considering the extent to which the tendency makes more likely the facts making up the charged offence [i.e. whether the tendency strongly supports the proof of a fact that makes up the offence charged]. [Hughes]. - in assessing the probative value, the focus must be on the strength of the inference that can be drawn from the conduct to the tendency of the person to have a particular state of mind or to act in a particular way [Hughes] and the extent to which that tendency increases the likelihood that a fact in issue did, or did not, occur [Jakara Pty Ltd]. This is for the court by application of logic and human experience as are used in the assessment of relevance [Hughes]. - court may look at evidence by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce evidence [i.e. not necessary that the disputed evidence have that effect by itself] [Hughes] and may be reinforced by other evidence [Hughes]. It is necessary to consider each count separately when there are multiple counts [Hughes]. - assessment of probative value must proceed on the assumption that evidence is accepted [and thus is to be regarded as credible and reliable] just as required when assessing relevance under s 55 [IMM]. - “it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or contamination” [compare Bauer]. - requires comparison between the tendency and facts in issue. A tendency expressed at a high level of generality might mean that all the tendency evidence provides significant support for that tendency. But it will also mean that the tendency cannot establish anything more than relevance. In contrast, a tendency expressed at a level of particularity will be more likely to be significant [Hughes]. - tendency to commit crimes of the type with which a defendant is charged will not, by itself, satisfy the test of significant probative value as it does nothing more than prove a deposition to commit crimes of a kind in question [Hughes] and there must be some feature for example that link the 2 co-offending together [Bauer]. proof of a tendency to have a sexual interest in young teenage boys can be relevant, but it is not capable of meeting the requirement of significant probative value for admission as tendency evidence. Generally, it is the tendency to act on the sexual interest that gives tendency evidence in sexual cases its probative value. In McPhillamy he tendency on which the prosecution relied was to act on the appellant’s sexual interest in male children in their early teenage years who were under his supervision. Tendency evidence that reveals a pattern of conduct or a modus operandi may support a conclusion that evidence has significant probative value [Hughes]. - examples: nature of proceedings which may be different in criminal to civil proceedings [Hughes]. The issue to which it is relevant [i.e. conduct rather than identify of offender] [Hughes]. Whether the tendency to be established is to act in a particular way or to have a particular state of mind [McPhillamy]. Nature of tendency [Anthony]. Number of occasions of particular conduct [RHB]. Time gap between [McPhillamy]. Degree of specificity or generality [Townsend]. Degree of similarity between conduct [Townsend]. Degree on similarity of circumstances in which conduct took place [Milton]. - the issue of “fairness” to the accused is addressed by s 101(2) and is not a material consideration for the purposes of this provision. - Reg 5(2) of Evidence Regulation 2010 (NSW) deals with notice requirements with respect to notice. - see 181. - s 97(2), s 97(1) does not apply if the evidence is adduced in accordance with any directions made by the court under s 100 [s 97(2)(a)], or the evidence is adduced to explain or contradict tendency evidence adduced by another party [s 97(2)(b)]. - if admitted for another purposes can not be used for tendency unless it satisfies requirements. - s 97(2): notice requirements in s 97(1)(a) do not apply if evidence is used to explain or contradict tendency evidence adduced by another party. Significant probative value requirement still applies [Bective Station Pty Ltd]. Despite the wording “adduced” the other evidence must have been admitted [Martin]. - see 110 and 111. - onus is on the party seeking to admit evidence [s 142]. 97A Admissibility of tendency evidence in proceedings involving child sexual offences 98 The coincidence rule - two types of coincidence evidence. The first is where two or more events have occurred in circumstances where the conduct is ambiguous. The similarity of the events can be used to argue that it is unlikely the events occurred accidentally or coincidentally and that they were, in fact, the result of criminal actions. The second type of coincidence evidence is where there is evidence that two or more similar allegations were made in circumstances where it is implausible that two or more complainants have independently come forward to make similar yet false allegations against the same defendant. The similarity of the allegations leads to the conclusion that the witnesses are telling the truth. - If you: 1. Rely on contended similarities in 2 or more events. 2. To prove a person did an act or had a state of mind. 3. By reasoning that it is improbable that the events occurred coincidentally, then you’ve engaged in coincidence reasoning, and you need to satisfy the notice and probative value requirements. - in assessing probative value for the purpose of s 97, one must proceed on the assumption evidence is accepted [thus to be regarded as credible and reliable] [IMM]. This also applied to s 98. Commentary on s 97 is relevant. - level of similarity between the two or more events circumstances in which they occurred is something that the court will consider when looking at the probative value of the evidence. Ultimately, a lack of similarity would likely result in inadmissibility in any case because it would mean the evidence did not have sufficient probative value. in assessing whether coincidence evidence had significant probative value considerations could be given to alternative explanations other than the inference sought to be drawn by the party adducing the evidence so long as the alternative explanation arises on evidence – it must be a real possibility, not a fanciful one. Court must ask whether the possibility substantially alters the view as to the otherwise significant capacity of the coincidence evidence to establish a fact in issue, although the court does not ask whether one explanation is more probable than the other. Such an alternative explanation which is not fanciful may deprive the evidence of significant probative value [Shamouil]. Shamouil analysis adopted in CV. - “No reasonable man could believe it possible that Smith had successively married three women, persuaded them to make wills in his favour, bought three suitable baths, placed them in rooms which could not be locked, taken each wife to a doctor and suggested to him that she suffered from epileptic fits, and had then been so unlucky that each of the three had had some kind of fit in the bath and been drowned.” [Smith]. - existence of “similarity” is not essential to tendency reasoning, while it will always be a necessary requirement coincidence evidence. Often “striking” similarities are needed to have significant probative value, but not always the case [CW]. [Ellis – i.e. using a particular technique to break in etc]. However, In Davies accused presence in the vicinity of fires was not an “innocent coincidence” and did not require “striking similarity”. - coincidence looks at similar improbable events and reasons that some criminal activity must have caused them apart from chance alone. - with tendency evidence, you are adducing evidence that the defendant has engaged in an past series of acts, from which you want to infer the tendency to do the act in question, but with coincidence evidence, the evidence adduced sometimes does not directly involve the defendant at all. - regulation 6(2) provides for notice. See Zhang as to what a properly drafted notice ought to identify (1) the two or more related “events” the subject of the proposed evidence; (2) the person whose conduct or state of mind is the subject of the proposed evidence; (3) whether the evidence is to be tendered to prove that a person did a particular act, and, if so, what that “act” is; (4) whether the evidence is to be tendered to establish that that person had a particular state of mind, and, if so, what that “state of mind” is. FCR O 33, Rule 19 requires it to be given on Form 147. - s 181 and 186 as to proof of service of notice. - s 98(1A): subsection (1) includes the use of evidence from 2 or more witnesses claiming they are victims of offences committed by a person who is a defendant in a criminal proceeding to prove, on the basis of similarities in the claimed acts or the circumstances in which they occurred, that the defendant did an act in issue in the proceeding [i.e. make it more improbable that they are telling lies]. Improbability of coincidence may make it more probable that the accounts given are more true despite lack of similarities – the greater the number of complaints the less distinctive or similar the evidence needs to be to satisfy coincidence reasoning [Page]. - s 98(2), s 98(1)(a) does not apply if (a) the evidence is adduced in accordance with any directions made by the court under section Significant probative value requirement applies even though there is no reference [Beactive Station Pty Ltd]. Despite reference to “adduced” it means admitted. - burden of proof is on the party seeking to admit the evidence in that sufficient notice has been given and there is significant probative value [Derwish], on the balance of probabilities [s 142]. 99 Requirements for notices - s 99: notices given under section 97 or 98 are to be given in accordance with any regulations or rules of court made for the purposes of this section. - rr 5 to 6 of Evidence Regulation 2010 (NSW). - ss 183 and 186. 100 Court may dispense with notice requirements - s 192 applies. Court will consider the probative value of the evidence and any prejudice caused [Harker]. Even if no objection is raised will still be refused [Bryant]. 101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution - applies to criminal proceedings only. - s 101(2): tendency or coincidence evidence adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence [used to say substantially outweighs] outweighs any prejudicial effect it may have on the defendant. “Adduced” means “tendered” [Zhang]. - in addition to having significant probative value in criminal cases only, the probative value must also substantially outweigh the prejudice to the defendant. This is a higher threshold for inclusion than the test in s 137 and s 135. - evidence which is neither tendency or coincidence. nay be admitted subject to discretions in ss 135 and 137. If admitted pursuant to s 95 cannot be used for a “tendency” or “coincidence” purpose. Must be clear articulation of the relevance as to demonstrate that it does not involve tendency reasoning and the “reality of what is sought to be achieved by the admission of the evidence” examined [RG]. The greater the risk jury will use it for another purpose, and, thus, stronger case for exclusion [L’Estrange]. - no longer need to “substantially” outweigh, due to 2020 amendments. The prior to amendment decisions state that calls for a balancing exercise which can only be conducted on the facts of each case and the court must give “consideration to the actual prejudice in the specific case which the probative value of the evidence must substantially outweigh” [Ellis]. - significant probative value is more than mere relevance but something less than substantial degree of relevance [Lockyer]. Significant defined as “important” or “of consequence” [Lockyer]. “Tendency evidence will have significant probative value if it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent.” [Hughes]. “The significance of the probative value of the tendency evidence under s 97(1)(b) must depend upon the nature of the facts in issue to which the evidence is relevant and the significance or importance which that evidence may have in establishing those facts. So understood the evidence must be influential in the context of fact- finding.” [IMM]. Relevant matters - “will usually include the cogency of the evidence relating to the conduct of the relevant person, the strength of the inference that can be drawn from that evidence as to the tendency of the person to act in a particular way and the extent to which that tendency increases the likelihood that the fact in issue occurred” [Jacara Pty Ltd]. - calculation of probative value will normally turn on factors like: 1. number of occasions relied upon. 2. time gap between occasions. 3. degree of specificity of conduct/alleged tendency. 4. degree of similarity between different occasions. 5. if it is possible to establish a pattern of conduct or modus operandi in the similar circumstances. 6. the “signature” nature of a modus operandi in the commission of offences can be one of the most powerful examples of tendency and coincidence evidence. 7. whether the tendency evidence is disputed. 8. the nature of the proceedings [i.e. civil or criminal]. 9. the issue. 10. s 97 and s 137 require that, “…the evidence be taken at its highest in the effect it could achieve on the assessment of the probability of the existence of the facts in issue.” [IMM]. In IMM, the proposed tendency evidence was evidence from the complainant (in a sexual assault case) that, on another (uncharged) occasion, while the complainant and another girl were giving the appellant a back massage, he ran his hand up the complainant’s leg. It is relevant, as it is capable of showing that he had a sexual interest in her. But did it have significant probative value. The probative value of this piece of evidence is its capacity to support the complainant’s account of the sexual assault. The court accepted that the tendency evidence was relevant as it was capable of showing that the appellant had a sexual interest in the complainant, as the trial judge ruled. This was not put in issue by the appellant. But, as there was no independent source of this behaviour (previous leg rub), they held that the evidence was not that probative. Here the evidence did not have significant probative value (therefore not admissible under s 97(1)(b)). Does that mean that unsupported evidence cannot be ever be sufficiently probative (for the purpose of tendency evidence)?: “It is possible that there may be some special features of a complainant’s account of an uncharged incident which give it significant probative value. But without more, it is difficult to see how a complainant’s evidence of conduct of a sexual kind from an occasion other than the charged acts can be regarded as having the requisite degree of probative value.” This suggestion, that the complainant’s evidence of an uncharged act is not enough for SPV without “special features” , was resiled from in Bauer. Also, if the evidence is obviously “preposterous” it is not necessary to exclude it on the basis of a lack of reliability or credibility (an exception suggested by Spigelman J in Shamouil) because such incredible evidence would not be accepted by a rational jury and therefore it would not be relevant at all. Or it could be rejected as a waste of time. 11. In Hughes alleged tendency was, “having a sexual interest in female children under 16 years of age” and “using his social and familial relationships…to obtain access to female children under 16 years of age so that he could engage in sexual activities with them.” The capacity of tendency evidence to be influential may differ in civil proceedings to criminal proceedings. In criminal proceedings, the prejudice of admitting tendency evidence may be that it is given disproportionate weight because (inter alia): - the jury may fail to allow that a person who has a tendency to have a state of mind or act in a particular way, did not do so on the occasion in question; or - the jury may underestimate the number of people who have that sate of mind or act in that way. Contrary to the VSCA’s approach in Velkoski of assessing the probative value of tendency evidence by looking to similarity of ‘operative features’ of the acts proving the tendency, the majority held that ‘a tendency to act in a particular way may be identified with sufficient particularity to have significant probative value notwithstanding the absence of similarity in the acts which evidence it.’ Ultimately, the probative value will depend on the factual issue the tendency evidence is being used to prove, and different considerations may be important where the fact in issue is the occurrence of the offence itself. For example, if the issue is the offender for a known offence, then close similarity is likely to be a requirement. But in other circumstances, different considerations may apply. The majority took up the articulation of s 97’s test from the earlier case of *Ford: that ‘the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged’, noting only that it is not necessary that the disputed evidence has this effect ‘by itself‘ That assessment in turn requires first, considering the extent to which the evidence supports the tendency, and, secondly, ‘the extent to which the tendency makes more likely the facts making up the charged offence’. Unlike the common law tests and principles it replaced, s 97 has a more ‘open-textured’ inquiry and evaluative task, which, despite likely difficulties and differences of views among courts in marginal cases, requires the ‘application of the same well-known principles of logic and human experience’ also used to assess the relevance of evidence. - SO: 1. Consider the extent to which the evidence supports the tendency; and 2. Consider the extent to which the tendency makes more likely the facts making up the charged offence. - in Hughes applying the 2 inquiries mentioned at [41], the majority held that the evidence, when considered together, ‘provided strong support to show the appellant’s tendency to engage opportunistically in sexual activity with underage girls despite a high risk of detection’ (at [62]), and that this tendency made more likely the elements of the offence charged (at [64]). Odgers argues that this case means that: it is not enough to show that the defendant has acted in a certain way in the past in relation to another person - The mere fact of committing an offence against another person is not necessarily enough. Therefore – mere propensity not enough? There needs to something which distinguishes the conduct. Here it was that the defendant was prepared to bear the high risk of detection. [57] So there must be some linking feature between the two acts? This is supported in McPhillamy. - In Bauer crown gave notice (s 99) that it wanted to rely on the various charged acts and evidence (from both RC and TB) of uncharged sexual conduct as tendency evidence to support each of the charges. Affirmed IMM: “The question as to the capability of the evidence to rationally affect the assessment of the probability of the existence of a fact in issue is to be determined by a trial judge on the assumption that the jury will accept the evidence. This follows from the words “if it were accepted”, which are expressed to qualify the assessment of the relevance of the evidence. This assumption necessarily denies to the trial judge any consideration as to whether the evidence is credible. Nor will it be necessary for a trial judge to determine whether the evidence is reliable, because the only question is whether it has the capability, rationally, to affect findings of fact. There may of course be a limiting case in which the evidence is so inherently incredible, fanciful or preposterous that it could not be accepted by a rational jury. In such a case its effect on the probability of the existence of a fact in issue would be nil and it would not meet the criterion of relevance.” “Henceforth, it should be understood that a complainant’s evidence of an accused’s uncharged acts in relation to him or her (including acts which, although not themselves necessarily criminal offences, are probative of the existence of the accused having had a sexual interest in the complainant on which the accused has acted) may be admissible as tendency evidence in proof of sexual offences which the accused is alleged to have committed against that complainant whether or not the uncharged acts have about them some special feature of the kind mentioned in IMM or exhibit a special, particular or unusual feature of the kind described in Hughes.” SO: 1. contrary to IMM, evidence of uncharged acts given by the complainant can have SPV, even if they do not have a “special feature”. 2. Distinguishes IMM at [55] and Hughes at [56]. 3. This means that evidence of the complainant of a previous uncharged act can have SPV (they accept some circumstances may preclude this): “IMM should be understood as confined to the particular, relatively exceptional circumstances of that case.” [55] “… where a question arises as to whether evidence that the accused has committed one sexual offence against the complainant is significantly probative of the accused having committed another sexual offence against that complainant, there is ordinarily no need of a particular feature of the offending to render evidence of one offence significantly probative of the other. … evidence that an accused has committed one sexual offence against a complainant … suggests that the accused has a sexual interest in or sexual attraction to the complainant and a tendency to act upon it as occasion presents.” - What about using evidence of one complainant as tendency evidence in relation to charged acts against another complainant? What if multiple complainants? Are the acts all admissible against each other? Doesn’t say much, but re-affirms Hughes – past offences do not automatically mean that is admissible. Is there some linkage? See [58] and [59]. (in Hughes the factor was that he was prepared to engage in conduct when there was a high risk of detection). “…there must ordinarily be some feature of or about the offending which links the two together”. But if the propensity is unusual, shouldn’t that be enough? In Bauer: “More specifically, absent such a feature of or about the offending, evidence that an accused has committed a sexual offence against the first complainant proves no more about the alleged offence against the second complainant than that the accused has committed a sexual offence against the first complainant. And the mere fact that an accused has committed an offence against one complainant is ordinarily not significantly probative of the accused having committed an offence against another complainant. If, however, there is some common feature of or about the offending, it may demonstrate a tendency to act in a particular way proof of which increases the likelihood that the account of the offence under consideration is true.” Section 101 prejudice: - the same as “unfairly prejudicial” in s 135 and “unfair prejudice” in s 137 and conveys harm to the interests of the accused by reason of risk that the jury will use the evidence improperly in some way [Bauer]. Varies from case to case and usually where the evidence if given “disproportionate weight” [Hughes]. The court is required to engage in a “balancing exercise” in “assessing the risks of unfair prejudice in the light of actions that may be taken in an attempt to reduce those risks, without any general assumption that such actions will necessarily be successful [Sokolowskyj. Question of fact and degree and will vary from case to case. “[a]ll that the section requires is that the court assess the probative value of the evidence and the prejudicial effect it may have on the accused and determine whether the probative value substantially outweighs its prejudicial effect” [Derwish]. If admitted under s 101, there would be no basis to exclude it under s 137 [Bauer]. - In Bauer: 1. argued that the number of incidents relied upon to show tendency was so great that it was likely to have “overwhelmed” the jury. The Court rejected this argument here, but did not say that this cannot be argued. 2. The long delay since some of the tendency events was such that caused a “forensic disadvantage” to the defendant. But here the judge gave a Longman like direction so this prejudice was cured. 3. The Court held there was no error by the judge in failing to give a warning that the jury had to be satisfied of uncharged acts beyond reasonable doubt. Ordinarily, proof of the accused’s tendency to act in a particular way will not be an indispensable intermediate step in reasoning to guilt. So a Shepherd v The Queen (1990) 170 CLR 573 warning is not required. - in McPhillamy: 1. before the trial, the prosecution served written notice on the defendant of its intention to adduce tendency evidence from the other boys. The defence objected. The objection was dealt with at a voir dire hearing before the jury was empanelled. 2. Proof of the appellant’s sexual interest in young teenage boys can be relevant, but it is not capable of meeting the requirement of significant probative value for admission as tendency evidence. Generally, it is the tendency to act on the sexual interest that gives tendency evidence in sexual cases its probative value. Here, the tendency on which the prosecution relied was to act on the appellant’s sexual interest in male children in their early teenage years who were under his supervision. The evidence demonstrating that tendency was that of the other boys, of events that occurred in 1985. follows the position in Hughes and Bauer, that if the tendency evidence is sexual misconduct towards others (i.e. uncharged or charged acts of the defendant against other people) which is being used to prove the tendency, it is usually necessary to have some feature which links the two together. Here, there was no link. There was only evidence that he had committed similar conduct on others some time ago. Therefore no SPV. Therefore, the evidence of tendency was only that he had sexually offended against the other two boys 10 years earlier in different circumstances. There was no link and therefore, it did not have SPV. - So where does that leave us? The test for tendency evidence appears to be the two pronged approach, developed in Hughes and supported by Bauer: 1. Consider the extent to which the evidence supports the tendency; and 2. Consider the extent to which the tendency makes more likely the facts making up the charged offence. 3. Single complainant – multiple acts: – Where there is evidence given by complainant of previous uncharged acts by the defendant against him/her, this can have SPV even if there is no “special feature”. 4. Multiple complainants/witnesses of acts - where there is evidence of sexual misconduct towards others (i.e. acts of the defendant against other people (including other charged conduct)) which is being used to prove the tendency, it is usually necessary to have some feature which links the them together. 5. Underlying unity. Pattern e.t.c. - there is no need for Velkoski like “underlying unity” etc between the various acts to establish SPV. - The majority in IMM cast doubt on “Hoch test” regarding joint concoction: “The premise for the appellant’s submission – that it is “well-established” that under the identical test in s 98(1)(b) the possibility of joint concoction may deprive evidence of probative value consistently with the approach to similar fact evidence stated in Hoch v The Queen – should not be accepted Section 101(2) places a further restriction on the admission of tendency and coincidence evidence. That restriction does not import the “rational view … inconsistent with the guilt of the accused” test found in Hoch v The Queen. The significance of the risk of joint concoction to the application of the s 101(2) test should be left to an occasion when it is raised in a concrete factual setting.” [59] - Bauer appears to have changed this again and explicitly qualifies [R v GM]. The risk of collusion or contamination goes to reliability and therefore should not be considered unless the risk is so great that “… it would not be open to the jury rationally to accept the evidence…” It is up to the jury to assess contamination of collusion. Hoch has been replaced by “the less demanding test in…” s 97: “the only sense in which competing inferences are of significance in the assessment of the probative value of evidence is in the determination of whether the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. As was established in IMM, that is a determination to be undertaken taking the evidence at its highest. Accordingly, unless the risk of contamination, concoction or collusion is so great that it would not be open to the jury rationally to accept the evidence, the determination of probative value excludes consideration of credibility and reliability. Subject to that exception, the risk of contamination, concoction or collusion goes only to the credibility and reliability of evidence and, therefore, is an assessment which must be left to the jury.” - this appears to mean that you can consider competing inferences in determining whether the evidence meets the test for relevance. - s 189 - onus is on the prosecution [s 142]. - may be necessary to direct the jury how the evidence that has been admitted but may not be used against the defendant may or may not be used [i.e. not to engage in coincidence reasoning [El-Azzi.
Part 3.7—Credibility Division 1—Credibility evidence
101A Credibility evidence - affects the assessment of the credibility of the witness or person - Part 3.7 does not apply where is it relevant not only because it affects credibility of a witness or person [i.e. non credibility purpose], but also relevant and admissible for another purpose even if requirement of Part 3.7 are not satisfied. - “Credibility of witness” and defined in Dict. Describes evidence that affects the “believability” of a witness and imports notions of truthfulness and reliability. Affects assessment of credibility whether it supports their credibility or tends to discredit them. Bears on the reliability of witness generally as well as the reliability of particular testimony of witness. Matters bearing on credibility can include: truthfulness, intelligence, bias, motive to be untruthful, opportunities of observation, reasons for recollection or belief, powers of perception and memory, special circumstances affecting competency, prior statements consistent/inconsistent with testimony, internal inconsistencies. Certain prior convictions and certain prior dishonest conduct by the witness. Veracity of the witness, including a bias he or she may have that is relevant to the proceedings, a motive to lie, and evidence of making of false representations made knowingly or recklessly while under a legal or moral obligation to tell the truth. Evidence of coaching of the witness. witness‘s intellectual capacity, his or her capacity to remember matters, or certain matters and his or her inability to be aware of or recall matters relating to evidence (due to age, illness or injury physical attributes etc). Evidence of the witness having made a prior inconsistent or consistent statement, giving inconsistent accounts during the giving of evidence, creating ambiguity in his or her evidence, giving an account that is inconsistent or contradicts other witnesses‘ accounts. Evidence of circumstances surrounding any observations that may affect the accuracy of his or her evidence (lighting, obstructions, noise etc); and demeanour of the witness while giving evidence. - s 55(2)(a) should be noted, which provides that evidence should not be taken to be irrelevant because it relates only to credibility of witness [i.e. as it will indirectly affect the assessment of probability of the existence about which the witness testified].
