Evidence Law Notes

Cheat Sheet

Week 1: Evifilta
- Admissibility – A 3 Stage Process
  - In assessing the admissibility of evidence the Court undertakes a three stage process where each threshold must be met before moving to the next step:
    - Relevant / Not Relevant ?
    - If Relevant, are there any Exclusionary Rule that apply ?
    - If no Exclusionary Rule applies, should the Trial Judge use Discretion to exclude the evidence ?
- Documents
- Tendering evidence
- Views
  - Bilal skaf
Week 2: Questioning Witnesses – Evidence Act 1995
- Overview
  - Witness Competence & Compellability
  - Evidence – Sworn / Affirmed / Unsworn
  - Child witness
  - Questioning Witnesses
  - Browne v Dunn – Cross examination
- s 26 Court’s control over questioning of witnesses
- s 29 Manner and form of questioning witnesses and their responses
- Browne v Dunn Rule
  - When W is giving evidence and you intend to call evidence that contradicts them, you must put the substance of that contradictory evidence to the witness during cross-examination and give them the opportunity to comment on it.
  - Duty for parties to ‘put’ to W any matter that may be used to suggest their evidence is untruthful, unreliable or which contradicts their testimony
- s 38 Unfavourable Witnesses
- s 39 Limits on re-examination
- s 42 Leading Questions
- s 41 - Improper Questions
- s 43 Prior Inconsistent Statements of Witnesses
Week 3: Who can testify
- Calling Witnesses
  - R v Apostilides (1984) 154 CLR 563
    - The Prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the Crown.
  - R v Kneebone (1999) 47 NSWLR 450
    - the Crown must meet the obligations that were identified in Apostilides because the Prosecutor is obliged to present the case fairly.
  - Failure to Call a Witness
    - Jones v Dunkel (1959
  - Failure to Call Evidence
    - Dyers v The Queen
    - Mahmood v WA (2008) 232 CLR 397
- Right to Silence
  - Pre-Trial Silence
    - Evidence of Silence (s 89 & s 89A)
  - Silence at Trial
    - s 20 EA
    - Weissensteiner v The Queen (1993) 178 CLR 217
If the Accused does not give evidence at Trial, these directions should be given:
- 1. The silence of the Accused is not evidence against the Accused (Azzopardi (2001) 205 CLR 50 [51]),
- 1. The silence of the Accused cannot be treated as an admission of guilt (OGD (1997) 45 NSWLR 744, R v Baker [2001] NSWCCA 151, Azzopardi (2001) 205 CLR 50),
- 1. The silence of the Accused cannot be used to fill gaps in the prosecution case (Azzopardi (2001) 205 CLR 50), and
- 1. The silence of the Accused cannot be used as a make-weight in assessing whether the Crown has proved its case beyond reasonable doubt (Azzopardi (2001) 205 CLR 50)
Week 4: Relevance
- Main EA provisions that deal with Relevance are s 55 & s 56. See also s 57 (Provisional Relevance) & s 58 (Inference as to Relevance – relates to relevance of documents etc).
- Smith v The Queen (2001)
- Papakosmas v The Queen (1999) 196 CLR 297
- Evans v The Queen [2007] HCA 59
- This material is relevant because it directly or indirectly assists the trier of fact to assess… (Smith v The Queen).
- This would satisfy the requirements under s 55, which is a low threshold (Papakosmas), subject to any exclusionary or discretionary rules under s 56.
- Does it meet the threshold test in s 55 – could it rationally affect the assessment of the probability of the existence of a fact in issue ? If no, material cannot be admissible (s 56)
Week 5: Hearsay
- Evidence Act 1995 (NSW), Section 59: The hearsay rule
- Evidence Act 1995 (NSW), Section 62
- Subramaniam v Public Prosecutor [1956] 1 WLR 965
- Process so far
  - Step 1 is to identify the ‘previous representation’
  - Step 2 is to work out who made the representation. (this becomes important when working out what exceptions to the Hearsay Rule may / may not apply).
  - Step 3 is to derive the intention of the Maker in making the representation. If made unintentionally, it will not be captured by s 59.
  - Step 4 is to identify the purpose of the evidence. Is it being adduced to prove the existence of an asserted fact? (Yes = hearsay - s 59 applies; No = not hearsay - s 59 does not apply).
Week 6: Hearsay
- Hearsay Exceptions
  - ‘First-Hand Hearsay Exceptions’ or
  - ‘More Remote Hearsay Exceptions’.
  - Maker available (s 66), criminal
    - Papakosmas v The Queen (1999) 196 CLR 297, (re-read this case focusing upon the hearsay issue)
  - Fresh in the memory (s 66(2A))
    - Graham v R (1998) 195 CLR 606, accessible at:
    - ALRC Report 102, section on ‘Representations ‘fresh in the memory”, accessible at:
  - Intention (s 59(2A))
    - R v Hannes [2000] NSWCCA 503 (1 December 2000)
  - Maker unavailable (s 65), criminal
    - Puchalski v Regina [2007] NSWCCA 220 (23 July 2007)
- Steps for hearsay
  - Establish relevance - s 55
  - Establish Hearsay - s 59
  - Establishing firsthand hearsay exception - s 62
    - Maker has personal knowledge of event upon which PR based
    - Witness perceived PR by maker
  - Yes/no, under s (63-66) for hearsay purposes (to prove the asserted fact)
Week 7: Credibility
- Admissible for its …[hearsay/credability] purpose
- Evidence Act 1995 (NSW)
  - ss 101A – 108C
  - ss 109-112A: Character Evidence,
- Papakosmas v The Queen (1999) 196 CLR 297,
  - now focusing on the issue of ‘credibility’
- Adam v R (2001) 207 CLR 96, in particular paras 17 – 39
Week 8: Evidence for Non-Hearsay Purpose / Admissions
- The s 60 Pathway
  - Situation
    - Your Witness has made a Statement to the Police, but in your Examination-in-Chief, he fails to come up to proof (ie he fails to adopt what was said in his Police Statement). How can you use what was said in the Prior Inconsistent Statement (PIS) as evidence of the truth of what was asserted in it ???
      - Make an application to have your Witness declared an Unfavourable Witness ( s 38).
      - Seek leave ( s 192) to ask leading questions of your Witness ( s 42).
      - Cross examine the Witness on Prior Inconsistent Statement ( s 43).
      - Assess under s 101A:
        
        Evidence has 2 purposes – Credibility and Hearsay but not admissible for its Hearsay purpose (at this point in time) after evaluating hearsay incompatibility through s 66(3).
        
        Credibility Rule ( s 102) must be applied.
      - Although s 102 applies, can use either s 103 and s 106 (Credibility Rule exceptions) to get evidence in for its Credibility purpose.
      - Once the evidence is in for its Credibility purpose, s 60 may be applied to have the evidence within the PIS used for its Hearsay purpose (subject to any of the Discretionary Rules being applied).
    - Declare the witness unfavourable (s 38).
    - Seek leave to ask leading questions (s 42, s 192).
    - Cross-examine on the prior inconsistent statement (s 43), using the Credibility Rule (s 102).
      - Make aware of circumstances when making the statement
      - Point out inconsistencies
    - Once the evidence is admitted for credibility purposes assessing under s 101A then evaluating hearsay incompatibility through s 66(3), the prosecution may seek to apply section 60 to use the prior inconsistent statement for its hearsay purpose (to prove the truth of its contents), subject to discretionary limitations (s 135, s 136).
    - Using s 103 exclusion to exclude the operation of s 102
      - Could substantially affect credit of the witness
    - Use s 106 to rebut denials
      - Put allegation to W
      - Deny/Not agree
      - No leave necessary - 106(2)(c)
- Evidence Act 1995 (NSW),
  - s 60: Evidence relevant for a non hearsay purpose
  - ss 81 – 90: Admissions
- ALRC Uniform Evidence Law Final Report 102 (2005), Chapter 7 ‘The Hearsay Rule and Section 60’
  - http://www.austlii.edu.au/au/other/alrc/publications/reports/102/12.ht
- Lee v The Queen (1998) 195 CLR 594 accessible at:
  - http://www.austlii.edu.au/au/cases/cth/HCA/1998/60.html
- Discretionary/Exclusionary rules
  - Exclusionary Rules Relating to Admissions
  - There are certain circumstances which will result in the exclusion of an Admission:
    - Evidence of Admissions that is not first-hand (s 82)
    - Use of Admissions against third parties (s 83)
    - Admissions influenced by violence and other conduct (s 84)
    - Unreliable Admissions of accused persons (s 85)
    - Records of oral questioning of accused persons (s 86)
    - Fairness Discretion (s 90)
  - Sections 84, 85, and 86 of the Evidence Act 1995 (Cth) deal specifically with the circumstances surrounding the admission (oppression, reliability, and proper recording) and provide avenues for the defence to challenge its admissibility.
  - s 90 gives the court discretion to exclude the admission if it would be unfair to Max.
  - s 138 and s 139 address improper procedures and the failure to caution Max properly, which could lead to exclusion of the admission.
Week 10: Opinion evidence
- Evidence Act 1995 (NSW), Sections 76 – 80: Opinion
- Smith v The Queen (2001) 206 CLR 650
- R v Hien Puoc Tang [2006] NSWCCA 167
- drawn from observable data (Lithgow City Council v Jackson)
- Section 76: Opinion rule excludes opinions unless based on specialized knowledge.
- Exception (s 79): Expert Opinion – Allows opinions based on specialized knowledge.
  - s 79(1)
    - Must be some form of specialised knowledge held by the Expert Witness.
    - The specialised knowledge must be based on the Expert’s training, study or experience.
    - The opinion must be wholly or substantially based on that specialised knowledge.
  - Specialized knowledge is held to be Knowledge which has gained a general acceptance within the relevant professional community (Frye test).
- Key Case:
  - Smith v The Queen (2001): Admissibility of expert opinion.
- Outcome:
  - Yes, excluded: If no exception applies.
    - Based on the facts, the situation is analogous to Tang’s, where there is no specialized knowledge found, s 79 cannot be applied. As such, s 76 still applies, however, if the court did find the material to be specialized knowledge, or if the nature of the evidence was sufficient, it may be open to the court to excercise their discretion to admit this evidence (s 135)…continue to next rule
  - No, proceed to next rule.
Week 11: Tendency and Coincidence
Evidence Act 1995 (NSW), Sections 94 — 101: Tendency and coincidence
Hughes v The Queen [2017] HCA 20 319
R v Ellis [2003] NSWCCA 319
BP v R [2010] NSWCCA 303
Ellis v The Queen [2004] 17
Steps to Assessing s 97 Admissibility of Tendency Evidence
- Determine the Tendency Purpose:
  - Identify whether the evidence is being introduced to establish that the person has a tendency to act, or think, in a particular way (i.e., the “tendency purpose”).
  - If the evidence has multiple purposes, and tendency is one of them, s 97 must be satisfied for that purpose (as per ES v The Queen (No 1) [2010] NSWCCA 197).
  - If the evidence is not used to establish a tendency, s 97 does not apply. However, if there’s a risk the jury might misuse it as tendency evidence, a warning must be given to prevent improper inference (R v OGD (No 2) [2000]).
- Identify the Alleged Tendency in Question:
  - Clarify the precise tendency that the party adducing the evidence seeks to prove (e.g., a tendency for the accused to act violently, or to act with intent for financial gain).
  - Ensure that this tendency is directly relevant to the facts in issue for the trial.
- Identify Relevant Events and Facts Supporting Tendency:
  - Establish the specific events or actions that are being used to demonstrate the alleged tendency. For instance, past incidents or statements that support a pattern of behavior relevant to the case.
  - Ensure that the events or behavior used to establish this tendency are relevant to proving the tendency itself.
- Confirm Reasonable Notice Requirement (s 97(1)(a)):
  - Verify that the party seeking to adduce tendency evidence has provided reasonable notice in writing to each other party of its intention to introduce this evidence.
  - Note that this requirement can be waived under s 100 of the Act, though only with court approval.
- Evaluate Significant Probative Value (s 97(1)(b)):
  - Assess whether the tendency evidence has “significant probative value.” According to relevant cases, this requires the evidence to:
    - Be more than merely relevant (R v Lockyer [1996] A Crim R 457).
    - Be “important” or “of consequence” in influencing fact-finding (R v Lock [1997]).
    - Have a high degree of influence on the facts in issue (IMM v The Queen [2016] HCA 14).
  - Consider factors such as:
    - Similarity of past events to the conduct alleged in the current case.
    - Frequency or regularity of the tendency pattern.
    - Temporal Proximity: How recently the events occurred relative to the offense.
- Balance Probative Value Against Prejudicial Effect (s 101 Requirement):
  - If the evidence meets the significant probative value test and is being led by the prosecution, then s 101 requires an assessment of whether the probative value outweighs the prejudicial effect.
  - This step involves assessing:
    - Whether the tendency evidence’s probative value substantially contributes to proving the facts in issue.
    - Whether the evidence could unfairly prejudice the jury’s perception of the defendant by creating bias or a prejudiced view, which may lead to an unjust conviction.
Steps to Assessing s 98 Admissibility - Simpson J in R v Gale; R v Duckworth [2012] NSWCCA 174.
- 1. Identify the particular act or state mind of the person sought to be proved by the evidence.
- 1. Identify the 2 or more events the occurrence of which is used to prove the person did a particular act or had a particular state of mind.
- 1. Identify the similarities in the events or circumstances for the purpose of ascertaining the improbability of the coincidence.
- 1. Determine whether reasonable notice has been given.
- 1. Evaluative whether the evidence has significant probative value (SPV).
  - something more than mere relevance but something less than a ‘substantial’ degree of relevance (R v Lockyer (1996) A Crim R 457)
- 1. If there is SPV determine whether the probative value outweighs any prejudicial effect (s 101 requirement for Prosecution evidence).
Week 12: Discretionary Rules - Warnings & Directions/Privilege
- Evidence Act 1995 (NSW)
  - Sections 135-139: Discretionary and mandatory exclusions
  - Sections 165, 165B: warnings
- R v Linard Shamouil [2006] NSWCCA 112
- R v Keenan Mundine [2008] NSWCCA 55
- IMM v The Queen [2016] HCA
- Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2006) [16.23] – [16.47]
Exam Template
To exclude: PV must be substantially outweighed by PE
To exclude: PV need only be outweighed by PE
- Three pathways for Credibility +/or Hearsay
- Relevance
  - This material is relevant because it directly or indirectly assists the trier of fact to assess… (Smith v The Queen)
  - This would satisfy the requirements under s 55, which is a low threshold (Papakosmas), subject to any exclusionary or discretionary rules under s 56.
- Purpose
  - This material would be relevant for a … purpose
- Exclusions
  - … Exclusion - Legislation and Statute Application
    - In order to satisfy the … exclusion we would need to meet the requirements set out in s …
    - The first requirement is to… The … requirement is set out in s …
  - Tendency - Application of Facts
    - The evidence of … meets the significant proabtive value because it is a clear demonstration … and is very similar to the event for which Max has been charged.
    - Although the significant of the evidence from witness 1 is not of the same weight as witness 2, it is still valuable for the jury’s deliberations and consideration.
  - Further Consideration - s …
  - Witness Two - Evidence
    - The evidence of witness two would be consdiered to have high probabtive value, particularly due to the similarity between the testimony contents and the charge levied against the defendant.
    - Given the facts it would appear that the probative value would be far more valuable than the prejudice that may be caused by the evidence being adduced
      Problem Question Full Flowchart

Warning: If any step fails, may follow the below statement: however, if the court did find the material to be…, or if the nature of the evidence was sufficient, it may be open to the court to excercise their discretion to admit this evidence (s 135)… continue to next rule
Stage 1: Relevance

Identify Fact in Issue
- What does the party need to prove with this evidence?
- Identify the main facts that need proof and determine if the evidence has any probative value toward those facts.
Assess Relevance
- Section 55: Evidence is relevant if it has the potential to rationally affect the assessment of probability of a fact in issue.
- Section 56: Only relevant evidence is admissible.
- Section 57: Provisional Relevance – Allows for preliminary admission if relevance may depend on further evidence.
- Section 58: Relevance of documents and inferred evidence.
- Key Cases:
  - Papakosmas v The Queen (1999) 196 CLR 297: Establishes a low threshold for relevance; minimal probative value is sufficient.
  - Smith v The Queen (2001) 206 CLR 650: Outlines standards for relevance in criminal trials.
  - Evans v The Queen [2007] HCA 59: Provides guidance on weighing relevance and potential prejudice.
- Outcome:
  - Yes: Evidence is relevant. Proceed to Stage 2.
  - No: Evidence is not relevant and is inadmissible (s 56).

Stage 2: Exclusionary Rules
For each exclusionary rule, determine if it applies. If so, examine exceptions that may allow admissibility.

Hearsay Rule
- Section 59: Hearsay Rule – Excludes “previous representation” used to prove a fact asserted.
- Steps:
  - Step 1: Identify the “previous representation.”
  - Step 2: Identify the person who made the representation (important for exceptions).
  - Step 3: Determine the maker’s intention (s 59(2A) – unintended statements are excluded).
  - Step 4: Identify the purpose – if to prove the asserted fact, hearsay applies.
- Exceptions:
  - First-Hand Hearsay (s 63–66): If the maker is available or unavailable, as defined in the Act.
  - Non-Hearsay Purpose (s 60): Admissible if used for purposes other than proof of fact asserted.
    - Lee v The Queen (1998) 195 CLR 594: Illustrates how s 60 permits the use of evidence for hearsay purposes if it is already admitted for credibility.
  - Fresh in Memory (s 66(2A)): Allows admission if memory is recent.
- Key Cases:
  - Subramaniam v Public Prosecutor [1956] 1 WLR 965: Defines hearsay by purpose of evidence.
  - Papakosmas v The Queen: Hearsay exceptions in criminal cases.
  - Graham v R (1998) 195 CLR 606: “Fresh in memory” test.
- Outcome:
  - Yes, excluded: If no exception applies.
  - No, proceed to next rule.
Section 60 - Exception for Non-Hearsay Purpose to Hearsay Use
- Purpose: s 60 allows evidence initially admitted for a non-hearsay purpose (such as credibility) to later be used for its hearsay purpose, which enables the fact-finder (like a jury) to consider it as evidence of the truth of the facts asserted.
- Key Case Law:
  - Lee v The Queen (1998) 195 CLR 594:
    - Facts: Lee was convicted of robbery, and his co-accused’s statement to police was used in court.
    - Decision: The High Court ruled that s 60 could not be used to allow the statement as evidence of the truth of Lee’s admission, as it was not intended to prove the asserted fact.
    - Outcome: This decision led to amendments to s 60 to clarify its application.
  - Adam v The Queen (2001): Raised concerns about the potential overreach of s 60, leading to further refinements to prevent misuse.
- Steps to Apply s 60:
  - Step 1: Confirm that the evidence has already been admitted for a non-hearsay purpose (e.g., credibility or background information).
  - Step 2: Determine whether the non-hearsay purpose satisfies s 101A (credibility requirement), if applicable, before invoking s 60.
  - Step 3: Apply s 60(1) to use the evidence for its hearsay purpose, allowing the jury to consider it as evidence of the truth of what was asserted.
    - Important Amendment: s 60(2) clarifies that this exception applies regardless of whether the person making the representation had personal knowledge of the asserted fact.
  - Step 4: In criminal cases, s 60(3) specifies that s 60 does not apply to evidence of an admission. However, s 81 may allow admissions under certain conditions (first-hand hearsay).
- Key Applications of s 60:
  - Prior Inconsistent Statements (PIS):
    - Sections 38 and 103 or 106: Declare a witness unfavourable (s 38) and cross-examine on PIS to admit it for credibility. Once admitted for credibility, s 60 can allow its use for hearsay purposes.
  - Prior Consistent Statements (PCS):
    - Section 108: Allows PCS for credibility, and once admitted for this purpose, s 60 can be invoked to use it for hearsay purposes.
- Outcome:
  - Yes, s 60 applies: Evidence admitted for non-hearsay purposes (e.g., credibility) can now be used for hearsay purposes, subject to discretionary limits under s 135 or s 136.
  - No, s 60 does not apply: If s 60 does not apply (e.g., it’s an admission in a criminal case and s 81 does not apply), the evidence cannot be used for hearsay purposes.
Hearsay Exception for Own Witness
- When dealing with hearsay issues for a party’s own witness, apply the following steps:
  - Declare Witness Unfavourable
    - Section 38: If your own witness fails to adopt their prior statement or contradicts previous representations, apply to declare them unfavourable.
  - Seek Permission for Leading Questions and Cross-Examine on Prior Inconsistent Statements
    - Section 192: Seek leave to ask leading questions and cross-examine under specific conditions:
      - Section 42: Request to ask leading questions.
      - Section 43: Cross-examine the witness on the Prior Inconsistent Statement (PIS).
  - Credibility and Hearsay Purpose Assessment
    - Section 101A: Evidence has dual purposes for both credibility and hearsay.
      - Initially assess under Credibility Rule (s 102). JUMP TO SECTION 2.5 THEN COME BACK
  - Check for Freshness in Memory (Section 66(3)):
    - Section 66(3): If the statement is being used for its hearsay purpose (to prove the truth of the matter), confirm that it is “fresh in the memory” of the witness.
      - Outcome: If “fresh in memory” is satisfied, proceed to apply s 60 for hearsay purposes. If not, the statement is limited to credibility purposes only.
    - Note: “Refer to your notes for the full meaning of ‘fresh in memory’ under s 66(3), which considers the timing and accuracy of the statement.”
  - Applying Credibility Exceptions
    - Apply exceptions under:
      - Section 103: Credibility evidence is allowed if it substantially affects the credibility of the witness.
      - Section 106: Allows rebuttal of the witness’s denials.
  - Applying Section 60 for Hearsay Purposes:
    - Section 60: If the prior inconsistent statement meets the “fresh in memory” requirement and admitted for its credibility purpose, the evidence in the Prior Inconsistent Statement may be used for its hearsay purpose, subject to discretionary limitations
    - Discretionary Limitations: Use s 135 or s 136 to exclude or limit the evidence if it risks undue prejudice or confusion, allowing it to be reduced to its credibility purpose only.
Opinion Rule
- …‘s evidence is based on opinion because it is an inference drawn from observable data (Lithgow City Council v Jackson)
- Section 76: Opinion rule excludes opinions unless based on specialized knowledge.
- Exception (s 79): Expert Opinion – Allows opinions based on specialized knowledge.
  - s 79(1)
    - Must be some form of specialised knowledge held by the Expert Witness.
    - The specialised knowledge must be based on the Expert’s training, study or experience.
    - The opinion must be wholly or substantially based on that specialised knowledge.
  - Specialized knowledge is held to be Knowledge which has gained a general acceptance within the relevant professional community (Frye test).
- Key Case:
  - Smith v The Queen (2001): Admissibility of expert opinion.
- Outcome:
  - Yes, excluded: If no exception applies.
    - Based on the facts, the situation is analogous to Tang’s, where there is no specialized knowledge found, s 79 cannot be applied. As such, s 76 still applies, however, if the court did find the material to be specialized knowledge, or if the nature of the evidence was sufficient, it may be open to the court to excercise their discretion to admit this evidence (s 135)…continue to next rule
  - No, proceed to next rule.
Admissions
- Sections 81–90: Admissions are generally admissible but can be excluded if obtained under unfair or unreliable conditions.
- Exclusions:
  - Section 84: Oppression – Exclude admissions obtained under oppressive circumstances.
  - Sections 85–86: Improper methods – Excludes admissions if improperly obtained.
  - Section 90: Discretion to exclude unfair admissions.
- Key Cases:
  - Adam v R (2001): Addresses fairness in admission conditions.
Judgments and Convictions
- Section 91: Excludes evidence of prior judgments and convictions to prove a fact in issue.
Tendency and Coincidence
- Sections 97 & 98: Excludes tendency or coincidence evidence unless probative value substantially outweighs prejudice (s 101 for criminal cases). SEE SECTION 11 CHEAT SHEET
Character Evidence
- Sections 109–112A: Addresses admissibility of character evidence, primarily for relevance and fairness.
Privilege
- Sections 117–131A: Excludes privileged communications, unless waived (e.g., legal professional privilege).

Stage 2.5: Credibility
Credibility Section (s 101A Pathways)
Pathway 1: Evidence Relevant for Credibility Purpose Only (s 101A(a))

Step 1: Is the Evidence Relevant for Credibility Only?
- If yes, proceed with this pathway.
- If no, proceed to Pathway 2 or Pathway 3 for dual-purpose evidence.
Step 2: Apply s 102 Exclusion (Credibility Rule)
- Default position: Evidence relevant solely for credibility is excluded under s 102.
Step 3: Check for Exceptions to s 102 (Part 3.7)
- Section 103: Is the evidence likely to substantially affect the credibility of the witness?
- Section 106: Is the evidence needed to rebut a witness’s denial of credibility issues? (Note: No leave required under s 106(2)(c) if rebutting denials).
Outcome:
- Yes, Exception Applies: Evidence is admissible for credibility purposes.
- No, Exception Does Not Apply: Evidence is inadmissible.

Pathway 2: Evidence Relevant for Dual Purpose (Credibility & Non-Credibility) and Admissible for Non-Credibility Purpose

Step 1: Is the Evidence Relevant for Both Credibility and Non-Credibility Purposes?
- If yes and admissible for the non-credibility purpose (e.g., hearsay), proceed with this pathway.
- If no, proceed to Pathway 3.
Step 2: Confirm Non-Credibility Purpose is Admissible
- If evidence is admissible for a non-credibility purpose (e.g., under s 60 for hearsay), then Part 3.7 Credibility Rule does not apply to limit its use.
Step 3: Evidence is Admissible for Both Purposes (Credibility and Non-Credibility)
- Since the evidence is admissible for a non-credibility purpose, it can be used for both credibility and non-credibility purposes.
Step 4: Apply Discretionary Limits (s 135 and s 136)
- Even if admissible for both purposes, the court may apply s 135 or s 136 to limit or exclude the evidence if there is a risk of unfair prejudice, confusion, or if it would waste time.
Outcome:
- Admissible with Dual Purposes: Evidence may be used for both credibility and non-credibility purposes, subject to discretionary limits.

Pathway 3: Evidence Relevant for Dual Purpose (Credibility & Non-Credibility) but Inadmissible for Non-Credibility Purpose (s 101A(b))

Step 1: Is the Evidence Relevant for Both Credibility and Non-Credibility Purposes?
- If yes, but the evidence is inadmissible for the non-credibility purpose, proceed with this pathway.
Step 2: Apply s 102 Exclusion (Credibility Rule)
- Since the evidence is inadmissible for its non-credibility purpose, s 102 applies to exclude it for credibility purposes unless an exception applies.
Step 3: Check for Exceptions to s 102 (Part 3.7)
- Section 103: Is the evidence likely to substantially affect the credibility of the witness?
- Section 106: Is the evidence needed to rebut a witness’s denial of credibility issues? (Note: No leave required under s 106(2)(c) if rebutting denials).
Outcome:
- Yes, Exception Applies: Evidence is admissible for credibility purposes only.
- No, Exception Does Not Apply: Evidence is inadmissible.

Stage 3: Discretionary Exclusions
Evaluate potential exclusion based on judicial discretion.

General Discretionary Exclusions
- Section 135: Allows exclusion if probative value is outweighed by prejudice, misleading potential, or time-wasting.
Limiting Evidence Use
- Section 136: Judges may limit the use of evidence to reduce prejudice.
Exclusion in Criminal Cases
- Section 137: Mandates exclusion if probative value is outweighed by unfair prejudice against the accused.
  - IMM v The Queen (again): Reinforces that evidence in criminal cases must be excluded if its probative value does not outweigh prejudicial effects.
Improper or Illegal Evidence
- Section 138: Discretion to exclude evidence obtained improperly or illegally.

Stage 3.5: Warnings and Directions
Provide necessary instructions to the jury or trier of fact on handling specific evidence types.

Reliability Warnings
- Section 165: Warning on potentially unreliable evidence (e.g., motive to lie, compromised witnesses).
Forensic Disadvantage Delay Warnings
- Section 165B: Instructions on forensic disadvantage if applicable.
Usage Directions
- Issue directions on limiting evidence use to particular purposes, such as credibility, if admitted solely for that purpose.
- Longman Direction
  - Unsafe due to the passage of time
- Murray Direction
  - one crown witness only requires scrutiny

Cheat Sheet
● Week 1: Evifilta
○
○ Admissibility – A 3 Stage Process
● Week 2: Questioning Witnesses – Evidence Act 1995
○ s 26 Court’s control over questioning of witnesses
○ s 29 Manner and form of questioning witnesses and their responses
○ Browne v Dunn Rule
○ s 38 Unfavourable Witnesses
○ s 39 Limits on re-examination
○ s 42 Leading Questions
○ s 41 - Improper Questions
○ s 43 Prior Inconsistent Statements of Witnesses
● Week 3: Who can testify
○ Sections 89, 89A and 20: Inferences from silence and comments
○ Dyers v The Queen (2002) 210 CLR 285 [paras 1-23]
○ Weissensteiner v R [1993] HCA 65
● Week 4: Relevance
○ Main EA provisions that deal with Relevance are s 55 & s 56. See also s 57 (Provisional Relevance) & s 58 (Inference as to Relevance – relates to relevance of documents etc).
○ Smith v The Queen (2001)
○ Papakosmas v The Queen (1999) 196 CLR 297
○ Evans v The Queen [2007] HCA 59
● Week 5: Hearsay
○ Evidence Act 1995 (NSW), Section 59: The hearsay rule
○ Evidence Act 1995 (NSW), Section 62
○ Subramaniam v Public Prosecutor [1956] 1 WLR 965
○ Process so far
● Week 6: Hearsay
○ A close up of a mapDescription automatically generated
○ Hearsay Exceptions
○ Steps for hearsay
● Week 7: Credability
○ Admissible for its …[hearsay/credability] purpose
○
○ Evidence Act 1995 (NSW)
○ Papakosmas v The Queen (1999) 196 CLR 297,
○ Adam v R (2001) 207 CLR 96, in particular paras 17 – 39
● Week 8: Evidence for Non-Hearsay Purpose / Admissions
○ The s 60 Pathway
○ Evidence Act 1995 (NSW),
○ ALRC Uniform Evidence Law Final Report 102 (2005), Chapter 7 ‘The Hearsay Rule and Section 60’
○ Lee v The Queen (1998) 195 CLR 594 accessible at:
○ Sections 84, 85, and 86 of the Evidence Act 1995 (Cth) deal specifically with the circumstances surrounding the admission (oppression, reliability, and proper recording) and provide avenues for the defence to challenge its admissibility.
○ s 90 gives the court discretion to exclude the admission if it would be unfair to Max.
○ s 138 and s 139 address improper procedures and the failure to caution Max properly, which could lead to exclusion of the admission.
● Week 10: Opinion evidence
○ Evidence Act 1995 (NSW), Sections 76 – 80: Opinion
○ Smith v The Queen (2001) 206 CLR 650
○ R v Hien Puoc Tang [2006] NSWCCA 167
● Week 11: Tendency and Coincidence
● Evidence Act 1995 (NSW), Sections 94 — 101: Tendency and coincidence • Text Ch 10: Tendency and Coincidence
○ Hughes v The Queen [2017] HCA 20 319
○ R v Ellis [2003] NSWCCA 319
○ BP v R [2010] NSWCCA 303
○ Ellis v The Queen [2004] 17
● Steps to Assessing s 97 Admissibility of Tendency Evidence
○ Determine the Tendency Purpose:
○ Identify the Alleged Tendency in Question:
○ Identify Relevant Events and Facts Supporting Tendency:
○ Confirm Reasonable Notice Requirement (s 97(1)(a)):
○ Evaluate Significant Probative Value (s 97(1)(b)):
○ Balance Probative Value Against Prejudicial Effect (s 101 Requirement):
● Steps to Assessing s 98 Admissibility - Simpson J in R v Gale; R v Duckworth [2012] NSWCCA 174.
○ 1. Identify the particular act or state mind of the person sought to be proved by the evidence.
○ 2. Identify the 2 or more events the occurrence of which is used to prove the person did a particular act or had a particular state of mind.
○ 3. Identify the similarities in the events or circumstances for the purpose of ascertaining the improbability of the coincidence.
○ 4. Determine whether reasonable notice has been given.
○ 5. Evaluative whether the evidence has significant probative value (SPV).
○ 6. If there is SPV determine whether the probative value outweighs any prejudicial effect (s 101 requirement for Prosecution evidence).
● Week 12: Discretionary Rules - Warnings & Directions
Table of Contents
Week 1: Evidence Overview
● Evidence: Evifilta
○
● Evidence
○ What is evidence?
○ Why do we need rules / laws that govern the use of evidence?
○ Three main reasons:
○ Uniform Evidence Legislation
○ Evidence Act Structure
○ Admissibility – A 3-Stage Process
● Documentary Evidence Real Evidence
○ Documents Generally
○ Definition of “Document”
○ Clause 8 Part 2 of the Dictionary:
○ Real Evidence
○ Three types of evidence
○ R v L Cassar; R v E Sleiman (Judgment No 28) [1999] NSWSC 651
○ Case Summary: Evans v The Queen [2007] HCA 59
Week 2: Witness Competence, Compellability, and Examniation
● Week 2: Witnesses
○ R v Khan NSWSC 1995
● 2A: Witness Competence & Compellability
○ Witness Competence & Compellability
○ Who can give evidence ?
○ Who must give evidence?
○ Evidence – Sworn / Affirmed / Unsworn
○ Child Witness
● 2B: Witness Examination
○ Trial Procedure (Criminal)
○ How is evidence adduced ?
○ Questioning Witnesses
○ The Rule in Browne v Dunn
○ Reviving Memory
○ s 48 Unfavourable Witnesses
○ s 41 - Improper Questions
○ s 43 Prior Inconsistent Statements of Witnesses
○ R v Glasby [2000] NSWCCA 83 (22 June 2000)
Week 3: Calling Witnesses / Right to Silence
● Calling Witnesses
○ Witnesses
○ Failure to Give or Call Evidence
○ Calling Witnesses
○ Can the Judge Call a Witness?
○ Failure to Call a Witness
○ Failure to Call Evidence
● Right to Silence
○ The Menu
○ The Right to Silence
○ Pre-Trial Silence
○ Silence at Trial
Week 4: Relevance
● Relevance
○ Admissibility – A 3 Stage Process
○ Common Terms
● The Concept of Relevance
○ Relevance
○ EVIDENCE ACT 1995 - SECT 55
○ Relevance
○ Relevance & Use
○ Papakosmas v The Queen (1999) 196 CLR 297
○ Smith v The Queen (2001) 2016 CLR 650
○ Smith v The Queen (2001)
○ Evans v The Queen [2007] HCA 59
○ Relevance Summary
Week 5: Hearsay Exclusionary Rule
● Hearsay Exclusionary Rule
○ An introductory thought !!
○ Debunking the myths about Hearsay
○ The Hearsay Rule
○ First-Hand and More Remote Hearsay
○ Examples
Week 6: Hearsay Evidence
● Hearsay Evidence
○ Hearsay Revision
○ First Hand and More Remote Hearsay
● Exceptions to Hearsay Rule
○ Exceptions to Hearsay Rule
○ Overview of First Hand Hearsay Exceptions
○ Maker Availability
○ s 63 Exception to Hearsay Rule
○ s 64 Exception to Hearsay Rule
○ s 65 Exception to Hearsay Rule
○ s 66 Exception to Hearsay Rule
○ Graham v The Queen (1998) 195 CLR 606
○ 66A Exception: contemporaneous statements about a person’s health etc
○ Some Other Hearsay Exceptions
○ Overview of Hearsay Evidence
Week 7: Witness Credibility / Character Evidence
● Witness Credibility
○ What is Credibility ?
○ What is Credibility ?
○ What is Credibility ?
○ Reasons why you would wish to use credibility evidence.
○ Credibility under the Evidence Act
○ Credibility under the Evidence Act
○ Using s 101A
○ Adam v The Queen (2001) 183 ALR 625
○ Using s 101A
○ Section 101A Pathways
○ Exceptions to Credibility Rule
○ Exceptions to Credibility Rule
○ Exceptions to Credibility Rule
○ Exceptions to Credibility Rule
○ Exceptions to Credibility Rule
○ Exceptions to Credibility Rule
○ Exceptions to Credibility Rule
○ Exceptions to Credibility Rule
● 7B: Character Evidence
○ Overview of Character Evidence
○ Relevance of Character Evidence
○ Issues with Character Evidence
○ s 110 Evidence About Character of Defendant
○ s 110 Evidence About Character of Defendant
○ s 112 Leave to Cross Examine about Character
○ Advance Rulings on Grant of Leave
○ Judicial Comments and Discretions
Week 8: Evidence for Non-Hearsay Purpose / Admissions
● Evidence for Non-Hearsay Purpose
○ Hearsay & Multi-Purpose Evidence
○ Section 60 Exception to the Hearsay Rule
○ Lee v The Queen (1998) 195 CLR 594
○ s 60 – Hearsay Exception
○ s 60 – Hearsay Exception
○ Using s 60 (for good rather than evil)
○ AN EXAMPLE OF WHEN s 60 CAN BE APPLIED
○ The s 60 Pathway
● 8B: Admissions
○ Part 1 Definitions: “Admission”
○ Overview of Admissions
○ s 81 Hearsay and Opinion Rules: exception for Admissions and related representations
○ Types of Admissions
○ Exclusionary Rules Relating to Admissions
○ Exclusionary Rules Relating to Admissions
○ s 90 Discretion to Exclude Admissions
Week 10: Opinion Evidence
● Opinion Evidence
○ Opinion is the medium between knowledge and ignorance.
○ What is Opinion Evidence ?
○ Problems with Opinion Evidence
○ s 76 Opinion Rule
○ Hearsay Evidence of Opinion
○ s 78 Lay Opinion Exception
○ Lithgow City Council v Jackson [2011] HCA 36
○ s 79 Specialised Knowledge Exception
○ s 79 Specialised Knowledge Exception
○ Meaning of Specialised Knowledge
○ R v Hien Puoc Tang [2006] NSWCCA 167
○ Gaining of Specialised Knowledge
○ Opinion based “wholly or substantially” on Specialised Knowledge
○ Problems with Expert Evidence
○ s 77 Admissibility of Opinions for a Non-Opinion Purpose
○ R v Wood [2012] NSWCCA 21
○ R v Wood
○ R v Morgan [2011] NSWCCA 257
○ Honeysett v The Queen [2014] HCA 29
○ Honeysett v The Queen [2014] HCA 29
● More Expert Evidence Cases
○ Velevski v The Queen [2002] HCA 4
○ R v Keir [2002] NSWCCA 30
○ Universal Music Australia Pty Ltd v Sharman Licence Holdings Limited
○ Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305
○ Kyluk Pty Ltd v Chief Executive, Office of Environment & Heritage [2013] NSWCCA 114
○ R v Parenzee [2006] SASC 127
○ R v Wood [2012] NSWCCA 21
○ R v Morgan [2011] NSWCCA 257
○ Frye v United States 293F1013 (1923)
○ Daubert et al, Petitioners v Merrell Dow Pharmaceuticals 509 US 579 (1993)
Week 11: Tendency and Coincidence
● Tendency and Coincidence
○ Inferential Reasoning
○ General Principles of Tendency & Coincidence
○ s 97 Tendency Rule
○ Significant Probative Value
○ s 97 Tendency Rule
○ Tendency Purpose
○ Evidence for Other Purposes
○ s 95 - Use of evidence for other purposes
○ s 98 Coincidence Rule
○ Coincidence Reasoning
○ s 101 Further Requirements on Prosecution
○ Probative Value v Prejudicial Effect
○ Some Recent Cases
○ Recent Amendments
○ s 97A - Tendency evidence in proceedings involving child sexual offences
○ s 94 Amendments
○ Steps to Assessing s 98 Admissibility - Simpson J in R v Gale; R v Duckworth [2012] NSWCCA 174.
Week 12: Discretionary Rules - Warnings & Directions
● Discretionary Rules Warnings & Directions
○
○ Discretionary / Mandatory Rules
○ s 135 Discretionary Rule
○ s 137 Mandatory Rule
○ IMM v The Queen [2016] HCA 14
○ Probative Value v Prejudicial Effect
○ s 138 Discretionary Rule
○ s 136 Discretionary Rule
● Warnings and Directions
○ EA Warnings
○ CL Warnings / Directions

Week 1: Evidence Overview

Evidence: Evifilta
Evidence
- What is evidence?
  - Evidence is the information (facts) received by the Court in its efforts to determine the existence of some other matter of fact. Sometimes referred to as a proof model.
  - “it encompasses, in my view, at least all of those matters which one party must prove in order to succeed in the proceeding and that the other must prove to establish its defence” per Branson J
- Why do we need rules / laws that govern the use of evidence?
- Three main reasons:
  - Fairness – a way of ensuring that the parties are treated fairly.
  - Efficiency – a way of limiting extraneous material to ensure the effective and efficient conduct of Court matters.
  - Standardisation – allows for a degree of standardisation across all Court matters (consistency and certainty).
- Uniform Evidence Legislation
  - Originally we had the Common Law Rules of Evidence – very complicated, convoluted and difficult to apply.
  - In the 1980’s ALRC conducted inquiry into problems associated with evidence.
    - Resulted in Uniform Evidence Acts (1995) in NSW and Cth jurisdictions
    - Since that time other States and Territories have adopted the approach.
    - Although the various Acts are described as ‘Uniform’, there are some differences between them.
- Evidence Act Structure
  - In NSW, the use of evidence in both Criminal and Civil matters is governed by the Uniform Evidence Act 1995 (EA)
  - Structure of EA is designed to allow for a more systematic approach to the assessment of admissibility.
  - Under the EA, every piece of evidence needs to be rigorously assessed to assess whether, or not, it is admissible.
  - Broken into major Chapters including:
    - Chapter 1 - Preliminary matters (application of the Act)
    - Chapter 2 - Adducing evidence
    - Chapter 3 - Admissibility
    - Chapter 4 - Proof
  - Under the EA, evidence may be classified as either:
    - - Testimonial (oral / written evidence given by a Witness) (oath by one’s testicles)
    - - Documents (papers, electronic recording etc)
    - - Other evidence (views, re-enactments, real evidence - eg the weapon)
  - EA allows the Court to ensure that facts are proven in a methodical and consistent manner.
  - Under the Uniform Evidence Act 1995 (EA) evidence is based on admissibility through:
    - The concept of Relevance.
    - The use of Exclusionary Rules.
    - The Use of Discretionary Rules.
  - Aim is to be more ‘Inclusionary’ than ‘Exclusionary’.
- Admissibility – A 3-Stage Process
  - In assessing the admissibility of evidence, the Court undertakes a three-stage process where each threshold must be met before moving to the next step:
    - 1. Relevant / Not Relevant?
    - 1. If Relevant, are there any Exclusionary Rules that apply?
    - 1. If no Exclusionary Rule applies, should the Trial Judge use Discretion to exclude the evidence?
  - Evifilta
Documentary Evidence Real Evidence
- Documents Generally
  - Understanding how documents can be used in Court / Litigation is an important skill for a lawyer to possess. Can be a very potent tool when handled correctly.
  - Many forms of litigation rely heavily on documents being adduced as evidence.
  - EA made significant changes to the Common Law about how documents can be adduced. Common Law was very strict on the notion of only using original documents.
  - Part 2.2 of the EA deals with how the contents of documents can be adduced. Deals with how originals, copies, extracts, summaries etc can be tendered in order to bring the contents of the document before the Court.
  - Should be noted that proving the content of a document is a different issue to how the content of the document is used/assessed in evidence. Getting the content of the document into evidence should be considered the first step.
- Definition of “Document”
  - In the Dictionary of the EA
  - “document” means any record of information, and includes:
  - (a) anything on which there is writing, or
  - (b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them, or
  - (c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else, or
  - (d) a map, plan, drawing or photograph.
- Clause 8 Part 2 of the Dictionary:
  - References to documents
    - A reference in this Act to a document includes a reference to:
      - (a) any part of the document, or
      - (b) any copy, reproduction or duplicate of the document or of any part of the document, or
      - (c) any part of such a copy, reproduction or duplicate
  - Proof of Contents of Documents
    - Main guidance as to the various ways that the contents of a document can be brought into evidence are dealt with under s 48 EA.
    - Under the EA, it is possible to:
      - -Tender the document itself
        
        – s 48(1)
      - -Tender a copy of it
        
        – s 48(1)(b)
      - -Adduce evidence as to its contents
        
        – s 48(1)(a)
      - -Tender a transcript of it
        
        – s 48(1)(c)
      - -For voluminous documents, it is also possible to tender a summary (with leave)
        
        – s 50.
    - s 48 also provides a way of utilising the contents of a document even though the document in question is not available to the party. (ss 48(2) and 48(4) refer)
  - Section 48(4) Proof of Contents of Documents
    - s 48(4) A party may adduce evidence of the contents of a document in question that is not available to the party, or the existence and contents of which are not in issue in the proceeding, by:
      - (a) tendering a document that is a copy of, or an extract from or summary of, the document in question, or
      - (b) adducing from a witness evidence of the contents of the document in question.
      - [See R v Cassar and Sleiman (No 28) [1999] NSWSC 651]
  - Definition of “unavailable”
    - Part 2 of the Dictionary: 5 Unavailability of documents and things
    - For the purposes of this Act, a document or thing is taken not to be available to a party if and only if:
      - (a) it cannot be found after reasonable inquiry and search by the party, or
      - (b) it was destroyed by the party, or by a person on behalf of the party, otherwise than in bad faith, or was destroyed by another person, or
      - (c) it would be impractical to produce the document or thing during the course of the proceeding, or
      - (d) production of the document or thing during the course of the proceeding could render a person liable to conviction for an offence, or
      - (e) it is not in the possession or under the control of the party and:
        
        (i) it cannot be obtained by any judicial procedure of the court, or
        
        (ii) it is in the possession or under the control of another party to the proceeding concerned who knows or might reasonably be expected to know that evidence of the contents of the document, or evidence of the thing, is likely to be relevant in the proceeding, or
        
        (iii) it was in the possession or under the control of such a party at a time when that party knew or might reasonably be expected to have known that such evidence was likely to be relevant in the proceeding.
  - R v Cassar & Sleiman [1999] NSWSC 651
    - D’s claimed that on the night of the incident they were driving around in a car.
      - P was given leave to adduce evidence in reply that would show car was elsewhere on that night.
      - Police had evidence that car was at a motel at the time.
      - What was this evidence and how was it adduced?
    - Evidence was contained in a motel registration form which recorded name, address, car rego, check in date and room charge.
      - Problem was that the registration form could not be found and therefore could not be produced as evidence, at trial.
    - Evidence regarding existence of such registration forms and their general content was given by the motel employee, on duty that night.
    - Evidence as to the content of the registration form was given by police officer who had inspected the original registration form and recorded the name, address, vehicle registration and payment details etc on a piece of paper.
      - This information was then faxed to another police officer who recorded it on a ‘running sheet’.
      - Sadly, the piece of paper and the fax of it could not be found at trial.
    - Only remaining evidence was the police running sheet. The question was whether that was admissible to prove the contents of the original motel registration form ????
    - Court held that:
      - Section 48(4)(a) provides that a party may adduce evidence of the contents of a document that is not available by tendering a document that is a summary of, or an extract from, the document in question. The running sheet was therefore admissible (it incorporated the salient details) pursuant to s 48(4)(a).
      - The police officer should have leave, pursuant to s 42 EA, to use the running sheet to try to revive his memory.
      - The police officer could then give oral evidence of what he saw recorded in the original registration form pursuant to s 48(4)(b), using the running sheet to refresh his recollection.
      - The registration form was a business record of the kind referred to in s 69EA and that proof of the contents of the form would be evidence of the fact.
- Real Evidence
  - Real Evidence
    - Under the EA there are two categories of Real Evidence identified.
      - -Exhibits (physical object tendered as evidence)
      - -Views (demonstrations, experiments or inspections of locations).
    - EA makes it possible to adduce evidence other than through witness testimony or through documents - this includes physical, tangible objects such as the murder weapon. (s 52)
    - The other type of Real Evidence (generally referred to as Views) allows for the conduct of experiments, demonstrations and location inspections. (s 53)
    - Demonstrations / experiments / inspections can be very powerful evidence so the Court needs to be satisfied that the evidence gained will assist the Court in its deliberations and will not be unfairly prejudicial to the parties (particularly to the Defendant in a Criminal matter).
    - Important to ensure procedural fairness is observed and that the evidence is able to be tested or commented upon like all other pieces of evidence.
    - Neither the Judge or any member of the Jury is permitted to conduct a View outside of the rules in s 53 (Bilal Skaf’s case)
    - The factors that the Judge needs to consider when contemplating whether to conduct a View are set out in s 53(3).
    - s 53 does not apply to in-court demonstrations: Evans v The Queen (2007) 235 CLR 521
      - Under s 54 the Court may draw any reasonable inference from what it sees, hears or otherwise notices during a demonstration, experiment or inspection.
  - Section 53 - Views
    - (1) A judge may, on application, order that a demonstration, experiment or inspection be held.
    - (2) A judge is not to make an order unless he or she is satisfied that:
      - (a) the parties will be given a reasonable opportunity to be present, and
      - (b) the judge and, if there is a jury, the jury will be present.
    - (3) Without limiting the matters that the judge may take into account in deciding whether to make an order, the judge is to take into account the following:
      - (a) whether the parties will be present,
      - (b) whether the demonstration, experiment or inspection will, in the court’s opinion, assist the court in resolving issues of fact or understanding the evidence,
      - (c) the danger that the demonstration, experiment or inspection might be unfairly prejudicial, might be misleading or confusing or might cause or result in undue waste of time,
      - (d) in the case of a demonstration—the extent to which the demonstration will properly reproduce the conduct or event to be demonstrated,
      - (e) in the case of an inspection—the extent to which the place or thing to be inspected has materially altered.
    - (4) The court (including, if there is a jury, the jury) is not to conduct an experiment in the course of its deliberations.
    - (5) This section does not apply in relation to the inspection of an exhibit by the court or, if there is a jury, by the jury.
  - Views
    - R v Milat (1996) (unreported)
    - R v Bilal Skaf, R v Mohammed Skaf [2004] NSWCCA 37
    - Evans v R [2007] HCA 59
  - Bilal Skaf Case
    - Note - The Court is not permitted to go outside the evidence presented and to act upon information privately obtained which the parties have no chance of combating or commenting upon.
    - In a Sexual Assault (Rape) case the Trial Judge gave his usual warning to the members of the Jury at the conclusion of the Trial. As part of this warning, the Judge instructed the Jury not to “go and do your own research”.
    - But despite the warning, the 64-year-old Jury Foreman rang another Juror the night before the verdict was delivered and they went to the park where the alleged rape occurred.
    - The two Jurors went to Gosling Park for about 20 minutes to check the lighting conditions (obviously an issue that had been causing some concern to the Jury).
    - At the Trial, the two Jurors had not told the Judge or anybody else what they had done.
    - At a BBQ some time later, the Foreman told a Solicitor that he and another had gone to the park. The Foreman said he only went to the park to `clarify something for my own mind‘. Quite correctly, the Solicitor reported the conversation to the NSW Sheriff.
    - As a result, the matter went to Appeal and the Judges in the NSWCCA found the experiment was a miscarriage of justice.
      - “In our view there must, regrettably, be a new trial because of this ground,” the judges said.
    - They also ordered that in future more specific orders be given to Juries to ensure further trials were not miscarried because of ‘Jury misconduct’.
    - NSWCCA stated that orders should include:
      - not making private visits to the crime scene;
      - not asking other Jurors to conduct experiments; and
      - informing the Trial Judge if they discover fellow Jurors making independent inquiries into the case.
    - The NSWCCA decision to order a retrial led to the NSW Government to amend the Jury Act – amendment allows for the punishment of those who conduct unauthorised experiments away from court.
- Three types of evidence
  - Oral testimony, documents, real evidence
- R v L Cassar; R v E Sleiman (Judgment No 28) [1999] NSWSC 651
  - Court: Supreme Court of New South Wales
  - Judge: Sperling J
  - Parties: Regina v Leanne Cassar; Regina v Emad Sleiman
  - Key Issues:
    - The admissibility of secondary evidence, specifically a police running sheet, to prove the contents of a lost motel registration form.
    - Whether a witness could use a document prepared by another to refresh their memory.
  - Decision:
    - The court held that the running sheet was admissible under section 48(4)(a) of the Evidence Act 1995 (NSW) as a summary of the original document, which was unavailable.
    - The court granted leave for a police officer to use the running sheet to refresh his memory under section 32 of the Act, allowing him to provide oral evidence of the contents of the lost registration form.
  - Significance:
    - The case illustrates the application of sections 32 and 48 of the Evidence Act 1995 (NSW) concerning the admissibility of secondary evidence and the conditions under which a witness can refresh their memory using documents not prepared by them.
- Case Summary: Evans v The Queen [2007] HCA 59
  - Court: High Court of Australia
  - Judges: Gleeson CJ, Gummow, Kirby, Hayne, and Heydon JJ
  - Judgment Date: 13 December 2007
  - Parties: Evans (Appellant) v The Queen (Respondent)
  - Procedural History:
    - Evans was convicted of armed robbery in a lower court.
    - The conviction was based in part on an in-court demonstration where Evans was required to wear clothing similar to that worn by the offender and to speak words alleged to have been spoken during the robbery.
    - Evans appealed to the High Court, arguing that the demonstration was inadmissible due to its prejudicial nature.
  - Facts:
    - Evans was accused of an armed robbery where the offender was described as wearing overalls, a balaclava, and sunglasses.
    - During the trial, the prosecution had Evans wear similar clothing and speak specific words in front of the jury to compare with witness descriptions.
    - The defense argued that this demonstration was prejudicial and did not have sufficient probative value.
  - Legal Issue:
    - Whether the in-court demonstration was admissible, considering the balance between its probative value and potential prejudice to the accused.
  - Decision:
    - The High Court upheld the admissibility of the in-court demonstration.
    - The Court found the demonstration relevant and useful for the jury in assessing the identity of the offender.
    - The probative value of the evidence was deemed to outweigh any potential for unfair prejudice.
  - Ratio Decidendi:
    - The admissibility of in-court demonstrations depends on the discretion of the judge, who must weigh the probative value of the evidence against the risk of prejudice.
    - In this case, the demonstration was relevant to the key issue of identity, and its potential prejudicial effect was not sufficient to exclude it from evidence.
  - Significance:
    - Evans v The Queen is an important case in evidence law, setting a precedent for the admissibility of in-court demonstrations.
    - It highlights the need for careful judicial balancing between the probative value of evidence and the risk of unfair prejudice to ensure a fair trial.
    - This case is often referenced in legal discussions concerning the limits and conditions for admitting similar in-court evidence.

Week 2: Witness Competence, Compellability, and Examniation

Week 2: Witnesses
- R v Khan NSWSC 1995
  - Court: Supreme Court of New South Wales
  - Parties:
    - Prosecution: Regina (The Crown)
    - Defendant: Gulam Mohammad Khan
  - Procedural History:
    - Gulam Mohammad Khan was on trial for the murder of Mohammad Abbas.
    - The Crown sought to compel Mr. Khan’s wife, Jatun Bibi Khan, to testify against her husband.
  - Original Dispute:
    - The dispute originated from the events of 4 December 1993, when Gulam Mohammad Khan allegedly murdered Mohammad Abbas, who had been living with the Khan family.
    - The prosecution aimed to call Mrs. Khan as a witness to testify about her relationship with Abbas and the circumstances surrounding the murder.
  - Reason for Trial:
    - The trial was convened to determine Mr. Khan’s guilt in the murder of Mohammad Abbas, with the Crown seeking to establish that the killing was not the result of a sudden loss of self-control (provocation) but rather a premeditated act of revenge.
  - Material Facts:
    - Mohammad Abbas, a friend of the Khan family, had been living with them for some time. During Mr. Khan’s absence in Fiji, Mrs. Khan’s relationship with Abbas grew closer, and they became sexually involved shortly before the murder.
    - On the night of the murder, Mr. Khan allegedly caught them together and, in a fit of rage, stabbed Abbas multiple times. Mrs. Khan’s initial statement to the police implicated her husband, but she later indicated that she would retract some of that statement if called to testify, claiming that her involvement with Abbas was coerced.
  - Issue Raised:
    - The central issue was whether the court should compel Mrs. Khan to testify against her husband despite her objection, balancing the harm that might be caused to the marital relationship against the need for her testimony in the interests of justice.
  - Law(s)/Statute(s) in Contention:
    - Section 18 of the Evidence Act 1995 (NSW):
      - This section allows a court to compel a witness, including a spouse, to testify even if they object, provided that the court determines the necessity of the evidence outweighs any potential harm to the witness or their relationship with the defendant.
    - Section 137 of the Evidence Act 1995 (NSW):
      - This section provides the court with discretion to exclude evidence if its probative value is outweighed by the risk of unfair prejudice to the defendant.
  - Precedences:
    - Richardson v The Queen (1974) 131 CLR 116: The Crown referenced this case in arguing that Mrs. Khan’s prior statement to the police could be used as evidence, even if she recanted it during her testimony.
    - R v Blewitt (1988) 62 ALR 503: This case was cited regarding the admissibility of prior statements when a witness deviates from their earlier testimony.
  - Tests:
    - The court applied the balancing test outlined in section 18(6) of the Evidence Act 1995 (NSW), considering the potential harm to Mrs. Khan and her marital relationship against the importance of her testimony to the Crown’s case.
  - Words and Phrases Considered:
    - “Provocation”: The defense centered on whether Mr. Khan acted under sudden provocation upon discovering his wife with Abbas, which could reduce his culpability from murder to manslaughter.
    - “Harm to relationship”: The court considered the nature of the harm that compelling Mrs. Khan to testify might cause to her marital relationship.
  - Arguments by Party:
    - Prosecution: Argued that Mrs. Khan’s testimony was crucial to establishing the sequence of events leading to Abbas’s death, particularly to counter the defense’s claim of provocation.
      - The Crown also contended that Mrs. Khan’s initial police statement could be treated as evidence under the new Evidence Act, even if she retracted it on the stand.
    - Defense: Argued that compelling Mrs. Khan to testify would cause significant harm to her marital relationship, which still endured despite the charges.
      - The defense also suggested that her testimony would lack credibility and that its key points could be corroborated by other evidence, making it unnecessary to compel her testimony.
  - Judicial Opinions:
    - The court, presided over by Justice Abadee, weighed the arguments presented by both parties.
    - Justice Abadee acknowledged the potential importance of Mrs. Khan’s testimony but ultimately decided that the harm to her relationship with her husband outweighed the benefits of compelling her testimony.
  - Legal Reasoning:
    - The court reasoned that although Mrs. Khan’s testimony could be relevant to the issue of provocation, the potential harm to the marital relationship was significant.
    - The court also noted that much of the evidence Mrs. Khan could provide was available from other sources, including the defendant’s own statements to the police and other witnesses.
    - Therefore, the court chose not to compel Mrs. Khan to testify, as the damage to the marriage outweighed the evidentiary value her testimony might provide.
  - Ratio Decidendi:
    - The court’s decision was based on the principle that the harm likely to be caused to Mrs. Khan’s marital relationship by compelling her to testify outweighed the desirability of having her evidence presented in court.
    - The ruling emphasized the court’s discretion under section 18 of the Evidence Act 1995 (NSW), prioritizing the protection of personal relationships where the evidentiary value does not justify the potential harm.
  - Result:
    - The court ruled that Mrs. Khan would not be compelled to testify against her husband, and her prior statement to the police was not admitted as evidence.
  - Relevance to Modern Law:
    - This case remains relevant in discussions about the limits of compelling testimony from unwilling witnesses, especially within family contexts.
    - It highlights the judiciary’s role in safeguarding personal relationships from undue harm during legal proceedings and serves as a precedent for similar cases involving the compellability of spousal testimony.
2A: Witness Competence & Compellability
- Witness Competence & Compellability
  - Who can give evidence ?
  - Who must give evidence ?
  - Evidence – Sworn / Affirmed / Unsworn
  - Child Witness
- Who can give evidence ?
  - The legal ability to give evidence is referred to as ‘Competence’.
  - Competence def = ability to give a rational reply to questions about facts.
  - Except as otherwise provided by the Evidence Act:
    - every person is presumed to be ‘competent’ to give evidence unless some form of exception applies. (s 12(a) EA)
  - Exceptions to the presumption:
    - Those lacking capacity to give evidence about a fact owing to a mental, intellectual or physical disability. (s 13 EA)
    - The Accused is not competent to give evidence for Prosecution. (s 17(2) refers)
  - Section 13 Competence: lack of capacity
    - (1) A person is not competent to give evidence about a fact if, for any reason (including mental, intellectual or physical disability):
      - a. the person does not have the capacity to understand a question about the fact, or
      - b. the person does not have the capacity to give an answer that can be understood in relation to a question about the fact.
    - and that incapacity cannot be overcome (see ss 30 & 31)
- Who must give evidence?
  - A person who is competent to give evidence about a fact is compellable to give that evidence. (s 12(b) EA)
  - If a person is a compellable Witness, they may be legally forced to give evidence despite being reluctant to do so.
  - Various exceptions to compellability may apply:
    - The Accused in his own Trial - s 17(1)
    - Co-Accused (if not given separate Trial) – s 17(3)
    - Sovereign / Governor-General / Governor – s 15(1)
    - Members of Parliament (if sitting) – s 15(2)
    - Close relatives of the Accused (eg. Spouse) – s 18 & s 19*
    - Judges / Jurors (in trial in which they were acting) – s 16
  - Compellability – Close Relatives
    - In criminal proceedings a close relative of A may object to being compelled to give evidence for P (s 18 EA).
      - See s 18(2) for classification of ‘close relative’
    - If there is an objection, the W must not give evidence if the Court finds that:
      - a) There is a likelihood of harm to either W or the relationship; and
      - b) The nature / extent of the harm outweighs the desirability of having the evidence (s 18(6) refers).
    - When undertaking this balancing exercise, the Court is to have regard to the matters set out in s 18(7).
    - *** s 18 does not apply in relation to certain offences in relation to children (see s 19 EA)
    - s 18(7) Without limiting the matters that may be taken into account by the court for the purposes of subsection (6), it must take into account the following:
      - (a) the nature and gravity of the offence for which the defendant is being prosecuted,
      - (b) the substance and importance of any evidence that the person might give and the weight that is likely to be attached to it,
      - (c) whether any other evidence concerning the matters to which the evidence of the person would relate is reasonably available to the prosecutor,
      - (d) the nature of the relationship between the defendant and the person,
      - (e) whether, in giving the evidence, the person would have to disclose matter that was received by the person in confidence from the defendant.
- Evidence – Sworn / Affirmed / Unsworn
  - Sworn Evidence
    - A Witness who is competent to give evidence is required to give ‘sworn’ evidence.
    - Before giving evidence, the Witness must take an ‘Oath’ or make an ‘Affirmation’ that they will tell the truth (s 21 EA).
      - I swear by Almighty God that the evidence I shall give will be the truth, the whole truth and nothing but the truth.
      - I solemnly and sincerely declare and affirm that the evidence I shall give will be the truth, the whole truth and nothing but the truth.
  - Section 21 - Sworn evidence to be on oath or affirmation
    - (1) A witness in a proceeding must either take an oath, or make an affirmation, before giving evidence.
    - (2) Subsection (1) does not apply to a person who gives unsworn evidence under section 13.
    - (3) A person who is called merely to produce a document or thing to the court need not take an oath or make an affirmation before doing so.
    - (4) The witness is to take the oath, or make the affirmation, in accordance with the appropriate form in Schedule 1 or in a similar form.
    - (5) Such an affirmation has the same effect for all purposes as an oath.
  - Evidence – Sworn / Unsworn
    - Unsworn Evidence
      - Despite the fact that W may be able give a coherent / comprehensible answer to a question, there may be an issue regarding W’s ability to understand their obligation to tell the truth.
        
        In this situation W is unable to give sworn evidence under s 13(3). However, in certain circumstances W may still be able to give unsworn evidence.
      - Pursuant to s 13(4), a person who is otherwise incompetent to give ‘sworn’ evidence may give ‘unsworn’ evidence if the matters in s 13(5) have been conveyed to W.
  - Section 13 Competence: lack of capacity
    - (3) A person who is competent to give evidence about a fact is not competent to give sworn evidence about the fact if the person does not have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence.
    - (4) A person who is not competent to give sworn evidence about a fact may, subject to subsection
    - (5), be competent to give unsworn evidence about the fact.
      - (5) A person who, because of subsection (3), is not competent to give sworn evidence is competent to give unsworn evidence if the court has told the person:
        
        (a) That it is important to tell the truth, and
        
        (b) That he or she may be asked question that he or she does not know, or cannot remember, the answer to, and that he or she should tell the court if this occurs, and
        
        (c) That he or she may be asked questions that suggest certain statements are true or untrue and that he or she should agree with the statements that he or she believes are true and should feel no pressure to agree with statements that he or she believes are untrue. […]
    - *** There is no longer a requirement for W to acknowledge that they understand the effect of s 13(5).
  - Evidence – Sworn / Unsworn
    - Unsworn Evidence
      - Procedurally, unsworn evidence given by W is treated in exactly the same way as sworn evidence.
      - Despite the use of ‘may’ in s 13(4), the Court has no discretion to prevent the Witness from giving his / her unsworn evidence.
        
        SH v The Queen [2012] NSWCCA 79
      - There remains some question as to whether unsworn evidence should be given less weight – purely on the basis that it is unsworn
        
        (R v GW [2016] HCA 6, [54-57] refers).
- Child Witness
  - CL traditionally regarded children as an unreliable class of witness, requiring that trial judges warn juries that it is dangerous to convict on the uncorroborated evidence of a child - perception being that children are prone to fantasy, highly suggestible, and likely to give inaccurate accounts of events
  - This position is no longer the case - research conducted in recent years demonstrates that children’s cognitive and recall skills are not inherently less reliable than that of adults.
  - In EA, the guidance relating to judicial warnings with respect to the evidence given by a Child Witness reflects current research
  - The EA now contains the following provisions in relation to judicial warnings and child witnesses:
    - –s 165(6) provides that warnings in relation to the reliability of a child’s evidence can only be given in accordance withs 165A.
    - –s 165A prohibits trial judges from warning or suggesting to juries that children (as a class) are unreliable witnesses or that it is generally dangerous to convict on the uncorroborated evidence of any child witness.
2B: Witness Examination
- Trial Procedure (Criminal)
  - 1. Accused has Indictment (charge) read to him / her and then asked to enter his / her plea – this is called the ‘Arraignment’ process.
  - 1. Jury empanelled and sworn in.
  - 1. Prosecution makes brief Opening Address outlining the elements of the offence and the evidence he / she will call in support of the Prosecution case.
  - 1. Defence may make brief statement if wishes to do so.
  - 1. Witnesses for Prosecution called to give evidence.
  - 1. Opening Address by Defence.
  - 1. Witnesses for Defence called.
  - 1. Closing submissions by Lawyers (Prosecution goes first).
  - 1. Judge summarises the evidence and law for Jury.
  - 1. Verdict (Guilty or Not Guilty).
  - 1. Sentencing (if needed).
- How is evidence adduced ?
  - Testimonial Evidence may be given orally or in written form (Affidavit or Witness Statement)
  - Documents and Real Evidence are tendered and if they conform to the Rules governing relevance and authenticity they will be admitted into evidence.
  - Before evidence will be accepted, there must be a basis for finding that the evidence is what it purports to be.
    - Very important requirement for Documentary Evidence, Real Evidence and Expert Evidence.
  - Court must not use information that was not part of the formal process of receiving evidence (Bilal Skaf case – Jurors undertaking ‘unofficial’ view)
- Questioning Witnesses
  - Control of Examination by the Court
    - s 26 Court’s control over questioning of witnesses
    - The court may make such orders as it considers just in relation to:
      - (a) the way in which witnesses are to be questioned, and
      - (b) the production and use of documents and things in connection with the questioning of witnesses, and
      - (c) the order in which parties may question a witness, and
      - (d) the presence and behaviour of any person in connection with the questioning of witnesses.
    - s 29 Manner and form of questioning witnesses and their responses
      - (1) A party may question a witness in any way the party thinks fit, except as provided by this Chapter or as directed by the court.
      - (2) A court may, on its own motion or on the application of the party that called the witness, direct that the witness give evidence wholly or partly in narrative form.
      - (3) Such a direction may include directions about the way in which evidence is to be given in that form.
      - (4) Evidence may be given in the form of charts, summaries or other explanatory material if it appears to the court that the material would be likely to aid its comprehension of other evidence that has been given or is to be given.
  - Adducing & Testing Testimonial Evidence
    - Three stage process used by Counsel (Lawyer) to adduce and test evidence:
      - Examination-in-Chief
      - Cross-Examination
      - Re-Examination
    - The Party who calls the Witness will commence by taking the Witness through his / her Evidence-in-Chief. (Non-leading questions)
    - The Opposing Party will test the evidence of Witness hoping to undermine it or bolster his / her own case. (Leading questions)
    - If need be, the first Party may re-examine the Witness in order to explain any points of confusion or unfavourable evidence. (Non-leading questions)
  - s 39 Limits on re-examination
    - On re-examination:
      - (a) a witness may be questioned about matters arising out of evidence given by the witness in cross-examination, and
      - (a) other questions may not be put to the witness unless the court grants leave (permission) to do so (Leave – s 192 EA).
  - Leading Questions
    - A Leading Question is a question asked of a Witness that:
      - directly or indirectly suggests a particular answer to the question, or assumes the existence of a fact the existence of which is in dispute in the proceeding and as to the existence of which the witness has not given evidence before the question is asked.
      - (EA Dictionary: Part 1 – Definitions)
  - Questioning Examples
    - Non-leading
      - – When was the last time you saw the woman ?
      - – How tall was the man that you saw ?
      - – What happened when you entered the bank?
    - Leading
      - – The last time you saw the woman was about noon?
      - – The man was approx 180cm tall, wasn’t he ?
      - – Is it true that when you entered the bank, a shot was fired by the Accused ?
  - s 42 Leading Questions
    - A party may ask a leading question of a witness in cross-examination unless the court disallows the question or directs the witness not to answer it. (s 42(1) refers).
    - When deciding whether to disallow the question, or give such a direction not to answer in accordance with s 42, the court may take into account the extent to which:
      - (a) the evidence given by the witness in examination-in-chief is unfavourable to the party who called the witness, and
      - (b) the witness has an interest that is consistent with an interest of the cross-examiner, and
      - (c) the witness is sympathetic to the party conducting the cross-examination, either generally or about a particular matter, and
      - (d) the witness’s age, or any mental, intellectual or physical disability to which the witness is subject, may affect the witness’s answers.
    - The factors in s 42(2)(a)-(c) allow a judge to disallow a question where there are reasons to believe that the witness is favourably inclined to the cross-examining party.
    - Arguably, s 42(2)(c) suggests that a question should be disallowed where there is a danger that the witness is unusually susceptible to suggestive questioning making the evidence unreliable.
    - Pursuant to s 42(3), the court is to disallow the question, or direct the witness not to answer it, if it is satisfied that the facts concerned would be better ascertained if leading questions were not used.
    - Should be noted that s 42 does not limit the court’s power to control leading questions (s 42(4) refers).
  - The Rule in Browne v Dunn
    - An essential aspect of fairness in court process is ensuring that one party has the opportunity to answer the claims or allegations of another.
      - The opposing party must be put on notice of the case that they must answer.
    - To address this, the Rule in Browne v Dunn was developed which requires a cross-examining party that intends to contradict a witness by adducing other evidence, to put as much of their own case that concerns that witness to them, and if it is intended to suggest that a witness is not speaking the truth on a particular matter, that their attention is drawn to what will be suggested about it so that they might have an opportunity to explain.
    - Browne and Dunn is not a rule of evidence - it is a rule of procedural fairness.
  - Rule in Browne v Dunn
    - When W is giving evidence and you intend to call evidence that contradicts them, you must put the substance of that contradictory evidence to the witness during cross-examination and give them the opportunity to comment on it.
    - Unfair to deny W the opportunity of explaining a point that will later be used to invite criticism or disbelief in their evidence
    - Duty for parties to ‘put’ to W any matter that may be used to suggest their evidence is untruthful, unreliable or which contradicts their testimony
    - Can be done in a formal manner ‘I put it to you that…’ or it may be done in a more natural, conversational style as part of the general cross examination, such as ‘Isn’t it true that…’
    - Failure to observe may result in adverse consequences eg recall W, exclude evidence, jury direction, dismiss jury
- The Rule in Browne v Dunn
  - If the Rule in Browne v Dunn is not observed, there are several different ways that the Court can deal with the issue:
    - – Prevent non-compliant party from submitting that opponent’s evidence should not be believed.
    - – Exclude evidence given by a non-compliant party.
    - – Recall Witness: s 46
    - – Allow cross-examination of non-compliant party
    - – Comment on non-compliance; lesser weight given to their evidence.
  - Marelic v Comcare [1993] FCA 599 provides a good overview of how the Rule in Browne v Dunn should be applied.
- Reviving Memory
  - A witness must not, in the course of giving evidence, use a document to try to revive his or her memory about a fact or opinion unless the court gives leave (s 42).
  - Despites 42, in any criminal proceeding, a police officer may give evidence-in-chief for the prosecution by reading or being led through a written statement previously made by the police officer (s 43).
  - If a witness attempts to revive his / her memory ‘out of court’, the court may, on the request of a party, give directions that the documents / things used by the witness to revive his or her memory are produced to the party (s 44).
- s 38 Unfavourable Witnesses
  - (1) A party who called a witness may, with the leave of the court, question the witness as though the party were cross-examining the witness, about:
    - (a) evidence given by the witness that is unfavourable to the party, or
    - (b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence, or
    - (c) whether the witness has, at any time, made a prior inconsistent statement. […]
- s 41 - Improper Questions
  - The court must disallow a question put to a witness in cross-examination, or inform the witness that it need not be answered, if the court is of the opinion that the question is:
    - – Misleading, confusing, unduly annoying, harassing intimidating, offensive, oppressive, humiliating, repetitive.
    - – In a tone that is belittling, insulting, otherwise inappropriate.
    - – Has no basis other than a stereotype (sex, race, culture, ethnicity, age, mental, intellectual or physical disability)
- s 43 Prior Inconsistent Statements of Witnesses
  - (1) A witness may be cross-examined about a prior inconsistent statement alleged to have been made by the witness…
  - (2) If, in cross-examination, a witness does not admit that he or she has made a prior inconsistent statement, the cross-examiner is not to adduce evidence of the statement otherwise than from the witness unless, in the cross-examination, the cross-examiner:
    - (a) informed the witness of enough of the circumstances of the making of the statement to enable the witness to identify the statement, and
    - (b) drew the witness’s attention to so much of the statement as is inconsistent with the witness’s evidence
- R v Glasby [2000] NSWCCA 83 (22 June 2000)
  - Procedural History:
    - Garry Zane Glasby was convicted of murder in the Supreme Court of New South Wales on 11 June 1998.
    - He was sentenced to life imprisonment.
    - Glasby appealed both his conviction and sentence to the New South Wales Court of Criminal Appeal (NSWCCA) on several grounds, including the admissibility of his wife’s testimony, errors in jury directions, and the severity of his sentence.
  - Original Dispute:
    - The dispute arose from the murder of John Albert Thiessl, allegedly carried out by Garry Zane Glasby on 6 November 1994 as part of a contract killing arranged by the victim’s wife, Carmela Thiessl.
  - Reason for Trial:
    - Glasby was tried for the murder of John Albert Thiessl.
    - The Crown’s case was that the murder was premeditated and carried out for financial gain.
    - Glasby pleaded not guilty, claiming he had no involvement in the murder.
  - Material Facts:
    - The Crown alleged that Carmela Thiessl contracted Glasby to kill her husband in exchange for a substantial sum of money.
    - Mrs. Suzette Glasby, the appellant’s wife, was involved in luring the victim to his death and driving Glasby from the scene of the crime.
    - Evidence against Glasby included testimony from Mrs. Glasby, recorded conversations implying Glasby’s involvement, and circumstantial evidence linking him to the crime.
  - Issue Raised:
    - Whether the trial judge erred in compelling Mrs. Glasby to testify and allowing her cross-examination under s 38 of the Evidence Act 1995.
    - Whether the trial judge adequately instructed the jury on the use of hearsay evidence provided by Mrs. Glasby.
    - Whether the trial judge should have discharged the jury due to prejudicial comments made by Mrs. Glasby.
    - Whether the life sentence imposed on Glasby was manifestly excessive compared to the sentence imposed on Mrs. Glasby.
  - Law(s)/Statute(s) in Contention:
    - Evidence Act 1995 (NSW) – particularly ss 18, 38, and 60 (relating to compellability of witnesses, cross-examination, and hearsay).
    - Criminal Appeal Act 1912 (NSW), s 6(1) – regarding the application of the proviso in appeals.
    - Crimes Act 1900 (NSW), s 19A – relating to the imposition of life imprisonment for murder.
  - Precedences:
    - Lee v The Queen (1998) 195 CLR 594: Clarified the application of s 60 of the Evidence Act 1995, specifically regarding hearsay evidence.
    - Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465: Set out principles for imposing the maximum penalty, even in cases where worse examples of the crime might be conceivable.
  - Tests:
    - Test for Compellability under s 18 of the Evidence Act 1995: Whether a witness is compellable depends on factors like the likelihood of harm to the relationship and the balance of fairness.
    - Application of the Proviso in Criminal Appeals (s 6 of the Criminal Appeal Act): Whether the error denied the accused a fair chance of acquittal.
  - Words and Phrases Considered:
    - “Compellable witness” – the statutory ability to require a spouse to testify, subject to certain conditions.
    - “Hearsay” – the legal rule regarding the admissibility of out-of-court statements to prove the truth of the matters asserted.
  - Arguments by Party:
    - Appellant (Glasby): Argued that his wife should not have been compelled to testify against him, that the trial judge failed to direct the jury correctly regarding hearsay evidence, and that the jury should have been discharged after Mrs. Glasby’s prejudicial outbursts. He also argued that his life sentence was excessive compared to the sentence imposed on his wife.
    - Respondent (Crown): Defended the compellability of Mrs. Glasby under the Evidence Act 1995, justified the cross-examination under s 38, and argued that any trial errors were not fundamental and did not deny Glasby a fair trial. The Crown also defended the life sentence as appropriate given the gravity of the offence.
  - Judicial Opinions:
    - The judges concurred that Mrs. Glasby was a compellable witness and that her cross-examination was properly allowed. They acknowledged an error in jury directions regarding hearsay but concluded that the error did not result in a miscarriage of justice.
    - The life sentence was deemed appropriate, and the disparity with Mrs. Glasby’s sentence was justified based on their respective roles in the crime.
  - Legal Reasoning:
    - The Court determined that s 18 of the Evidence Act 1995 applied retrospectively and that the trial judge properly exercised discretion in requiring Mrs. Glasby to testify.
    - Regarding the hearsay issue, the Court accepted that the trial judge had not provided adequate directions to the jury, but the weight of other evidence meant that this error did not deny Glasby a fair trial.
    - The Court also found that the trial judge’s refusal to discharge the jury was appropriate, given the instructions to disregard the prejudicial comments.
    - The life sentence was upheld as proportionate to Glasby’s culpability.
  - Ratio Decidendi:
    - Mrs. Glasby was a compellable witness under the Evidence Act 1995 (NSW), and the trial judge’s errors in jury directions did not amount to a miscarriage of justice due to the strength of the evidence against Glasby.
    - The life sentence was appropriate given the premeditated nature of the crime and Glasby’s dominant role.
  - Result:
    - The appeal against conviction and sentence was dismissed.
    - Glasby’s conviction for murder and life sentence were upheld by the Court.
  - Relevance to Modern Law:
    - This case highlights the application of the Evidence Act 1995 in compelling spousal testimony and underscores the impact of Lee v The Queen on the treatment of hearsay evidence in criminal trials. It reinforces the principle that errors in jury directions may not warrant overturning a conviction if the evidence against the accused is overwhelming.
    - It also illustrates the court’s discretion in balancing issues of parity in sentencing between co-offenders.

Week 3: Calling Witnesses / Right to Silence

Calling Witnesses
- Witnesses
  - One of the main ways that we still adduce evidence in Court is through the calling and questioning of Witness.
  - Need to have an understanding of relevant provisions and case law relating to:
    - Calling Witnesses
    - Effect of not calling evidence
- Failure to Give or Call Evidence
  - How does the law address the fact that a party fails to call evidence that the party would reasonably be expected to ?
  - How does the law address the situation where the Defendant elects to remain silent at trial ? (This question will be addressed in the next lecture – s 20 EA Silence at Trial)
- Calling Witnesses
  - In a trial, who is responsible for deciding what witnesses will called and by whom ??
    - General principle is that given our adversarial system, it is the parties to the litigation who decide what witnesses are to be called and in what order.
      - This can have a major impact on how a witness may be questioned.
      - Can give a huge tactical advantage to one party over another due to limits placed on the manner in which questions can be posed.
    - The question in criminal matters is who is responsible for deciding who is to be called as a Crown witness ??
      - Need to be aware of duties and role of Prosecutor. See Prosecutor’s Duties as set out in Rule 29 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 [NSW] https://legislation.nsw.gov.au/view/html/inforce/current/sl-2015-0244#sec.29
        
        Must call evidence that may assist court, even if not helpful to case
        
        Must be fair case/trial
        
        Must assist court
        
        Must not press the prosecution’s case for a conviction beyond a full and firm presentation of that case
  - R v Apostilides (1984) 154 CLR 563
    - Apostilides was tried and convicted on four counts of rape.
      - At trial P failed to call 2 witness – these witnesses were called by D and cross examined by P (NOT FAVORABLE AT ALL - CAN’T CROSS).
      - Apostilides appealed on basis that the P should have called the witnesses so D could cross examine them (argued miscarriage of justice).
      - Appeal upheld by VSC – retrial ordered (Crown then appealed the VSC decision in HCA)
    - As part Special Leave Application, HCA set out various propositions including:
      - The Prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the Crown.
      - A decision of the Prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice.
  - R v Kneebone (1999) 47 NSWLR 450
    - Another case where the Crown failed to call a Witness is the case of Kneebone.
    - Kneebone is authority for the principle that the Crown must meet the obligations that were identified in Apostilides because the Prosecutor is obliged to present the case fairly. This is an important part of the Duties of the Prosecutor.
    - Case identifies that although we have an adversarial system of justice, the Prosecutor continues to have an obligation to ensure that a prosecution proceeds fairly.
      - Question of fairness and balance on part of Prosecutor – See also Whitehorn v The Queen (1983) 152 CLR 657 (Deane, J. at 663-664)
    - Crown Prosecutor bears responsibility for deciding whether to call a witness for the Crown.
    - Judge may, but not obliged to question Crown regarding reasons not to call a witness. Not called to adjudicate sufficiency of those reasons.
    - At the close of the Crown case, Judge may ask Crown to reconsider the decision, but cannot compel the Crown to call a witness.
    - Judge may comment to jury about failure of Crown to call a witness and the effect on the trial (but also now see Dyers v The Queen).
    - Save for exceptional circumstances, judge should not call a witness.
    - Decision not to call a witness is only a ground to set aside a conviction if, when viewed against conduct of whole trial, it gives rise to a miscarriage of justice.
- Can the Judge Call a Witness?
  - The issue of whether a Judge can a call a witness was examined in Apostilides where one of the propositions identified by the HCA was that only in extraordinary circumstances should the Judge call a witness on his / her own volition.
    - In an adversarial system of litigation, the dispute is supposed to be run by the disputing parties; the judge is not supposed to intervene in the conduct of their cases. However, if the Judge feels that there may be a miscarriage of justice, the Judge is permitted to call a witness (only in extraordinary circumstances).
  - The authority for the kind of extraordinary circumstances contemplated by the HCA comes from the decision in R v Damic [1982] 2 NSWLR 750.
  - R v Damic [1982] 2 NSWLR 750
    - Damic was a self-represented litigant who had been charged with many offences, including murder.
    - Trial Judge thought Damic was fundamentally incapable of leading a proper defence (serious mental illness). Damic refused to raise mental illness as his defence – Judge considered that this did not accord to the principles of a fair trial.
    - Trial Judge called a psychiatrist to assess the fitness of Damic to represent himself, and the psychiatrist was then called as a witness to testify about the Damic’s fitness. Had the judge not called that witness, and had Damic been convicted, the conviction would have been unfair and vulnerable to being overturned on appeal.
- Failure to Call a Witness
  - How does the law address the fact that a party fails to call evidence (witness) that the party would reasonably be expected to ?
    - The rule in Jones v Dunkel (1959) 101 CLR 298 relates to civil cases where the Plaintiff does not call a witness that they would reasonably be expected to have called – as a result the Trial Judge may draw an adverse inference from that failure. (Note that s 20 EA only applies to criminal matters)
    - The principle in Jones v Dunkel was originally extended to apply in criminal cases – this position is no longer valid in criminal matters.
    - The application of Jones v Dunkel in criminal matters has been repeatedly overruled, most conclusively in the HCA decision in Dyers.
  - Jones v Dunkel (1959) 101 CLR 298 (CIVIL)
    - Although Jones v Dunkel was a civil matter in relation to a fatal road accident where the driver of the defendant’s truck was not called to give evidence and does not directly deal with the issue of the accused’s right to silence at trial, per se, the HCA decision in this matter has been cited as an authority for the proposition that in certain circumstances an inference can be drawn from a party’s failure to give or call evidence.
    - The Jones v Dunkel principle says that if a party would normally be expected to call a witness, or adduce other evidence, and they choose not to call that witness / adduce that evidence, in the absence of an explanation for failure to call the witness, a court might be entitled to conclude / infer that the evidence of that witness would not have assisted the party.
    - In light of the wording of s 20 and a several HCA decisions such as Dyers v The Queen, Jones v Dunkel does not have any real application in criminal matters.
- Failure to Call Evidence
  - How does the law address the fact that the Defence fails to call evidence (witness) that the Defence would reasonably be expected to have called ?
    - Following the HCA decision in Dyers v The Queen, no comment should be made about the failure of the Defence to call a witness who might have been able to assist the Defence case.
    - Only comment that can be made is that the jury should not speculate about what the witness might have said, if he / she had been called (Dyers v The Queen [15] refers)
  - A similar approach is taken with respect to the Accused making the election not to give evidence on his / her own behalf.
  - How does the law address the fact that the Crown fails to call evidence that the Crown would reasonably be expected to have called ?
    - Following decisions such as RPS v The Queen [2000] HCA 3, Dyers v The Queen [2002] HCA 45, Mahmood v WA (2008) 232 CLR 397 and R v Louizos [2009] NSWCCA 71 the position is that where the P has failed to call a witness (who might have been expected to be called by the P), the jury may properly reach conclusions that the failure may help support a reasonable doubt about the guilt of the accused.
    - As per Criminal Trial Courts Bench Book (NSW)
      - … a jury is entitled to take into account that there was no evidence from a particular person in deciding whether or not there is a reasonable doubt about the accused’s guilt.
  - How does the law address the fact that the Crown fails to call evidence that the Crown would reasonably be expected to have called ?
    - Mahmood v WA (2008) 232 CLR 397, is authority for the proposition that “… where a witness, who might have been expected to be called and to give evidence on a matter, is not called by the prosecution, the question is not whether the jury may properly reach conclusions about issues of fact but whether, in the circumstances, they should entertain a reasonable doubt about the guilt of the accused.”
    - In R v Louizos [2009] NSWCCA 71 it was held that “… it may have been appropriate for the Trial Judge to raise with the jury whether the failure of the Crown to call the witness gave rise to a reasonable doubt about the truthfulness and reliability of the evidence… but he was never asked to do so.” [57]
Right to Silence
- The Menu
  - The Right to Silence
  - Silence of the Accused Pre-Trial
  - Silence of the Accused at Trial
- The Right to Silence
  - Right to Silence is a legal protection given to people undergoing police interrogation or at Trial.
  - Right is linked with principles that Prosecution bears Burden of Proof and that the Accused is not a compellable witness in his / her own Trial.
  - Right covers a number of issues centered around the right to refuse to answer questions – usually relates to avoidance of self-incrimination.
  - Right usually includes the provision that adverse comments or inferences cannot be made by the Judge or Jury about the refusal to answer questions before or during a Trial.
  - Right extends from the moment of arrest to the end of the Trial.
  - Different rules apply in relation to Pre-Trial Silence and Silence at Trial
- Pre-Trial Silence
  - Evidence of Silence (s 89 & s 89A)
    - In a Criminal proceeding, s 89 provides that subject to the special requirements set out in s 89A, an unfavourable inference must not be drawn from evidence that a person failed or refused:
      - to answer one or more questions, or
      - to respond to a representation,
    - put to that 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 (s 89(1) refers).
    - For a serious indictable offence, s 89A provides unfavourable inferences may be drawn if A failed / refused to mention a fact that A could reasonably have been expected to mention in the circumstances existing at the time, and that is relied on in his / her defence in that proceeding (s 89A(1) refers).
      - AKA TELL THEM YOUR ALIBI
    - Certain requirements such as a ‘Special Caution’ apply in relation to s 89A.
- Silence at Trial
  - How does the law address the situation where the Accused elects to remain silent at trial ?
    - The Accused has the right to remain silent at trial and put the Prosecution to proof. Consequently he / she may elect not to give evidence or not call evidence on his / her behalf.
    - As set out in s 20 EA, the Prosecution is not permitted to make comment about the Accused’s election not to give evidence. (Raises questions about what ‘comment’ actually means ????)
    - Under s 20(2) the Judge, or other party (not Prosecution), may comment on the Accused’s election but must not make a comment that suggests / infers that the Defendant is guilty of the offence. cf Weissensteiner v The Queen (1993) 178 CLR 217
    - This section only applies in criminal proceeding for an indictable offence.
  - Evidence Act s 20 - Comment on failure to give evidence
    - (1) This section applies only in a criminal proceeding for an indictable offence.
    - (2) The Judge or any party (other than the Prosecutor) may comment on a failure of the Defendant to give evidence. However, unless the comment is made by another Defendant in the proceeding, the comment must not suggest that the Defendant failed to give evidence because the defendant was, or believed that he or she was, guilty of the offence concerned.
    - (3) ……..
  - Weissensteiner v The Queen (1993) 178 CLR 217
    - Facts: W went on a boat trip with a young couple. Sometime during the trip, the couple dropped out of contact with everyone they knew and stopped drawing upon their bank account. W returned alone, with the boat, and with some of their possessions. When questioned about their whereabouts, he gave conflicting explanations. He was charged with their murder and tried. At his trial, he did not give evidence. The TJ told the jury that, since W was the only person in the world in a position to contradict or deny the Crown case (that he murdered them), and he elected not to do so, the jury could more safely draw an inference of guilt from his decision not to testify.
      - HCA: Held that this was a permissible comment to make.
    - The HCA decision in Weissensteiner is at odds with the basis for s 20 – the practical protection the Accused’s right to silence.
    - *** Weissensteiner reflected a principle that originated in civil case of Jones v Dunkel (1959) 101 CLR 298.
  - The enactment of the EA has clarified the limitations on judicial comments about the Accused’s decision not to testify.
    - When examining s 20, the superior courts have said that comments about adverse inferences should be seen as an interference with the right to silence, which is an entrenched and fundamental right.
    - In light of HCA decisions in RPS, Azzopardi and Dyers, it is clear that only in a rare and exceptional case, where the facts would be peculiarly within the knowledge of the Defendant, will the Judge be permitted to make an adverse comment about the Defendant’s failure to give evidence. This is how the HCA reconciled and rehabilitated its decision in Weissensteiner v R (1993) 178 CLR 217.
  - RPS v The Queen (2000) 199 CLR 620
    - Facts: RPS was on trial for sexual assaults against his daughter between the ages of 4 and 14.
      - The evidence against him came from his daughter (complainant) and her mother, to whom RPS had apparently made certain admissions about the sexual assaults.
      - RPS elected not to give evidence, which means in effect that he did not deny the evidence against him.
    - HCA: Held that Weissensteiner, and all the cases that relied on it, were no longer applicable.
      - HCA said that, in a criminal trial, the entire onus is upon the Prosecution, and it will never – or rarely – be reasonable to expect the accused to testify.
      - HCA also held that s 20 prohibits the TJ from commenting in any way that suggests the accused is guilty of the offence.
    - *** The following year, in Azzopardi v The Queen (2001) 205 CLR 50, the HCA affirmed this decision, allowing Evidence Act to overrule Weissensteiner directions.
  - Dyers v The Queen (2002) 210 CLR 285
    - Facts: Dyers was the leader of what the HCA later described as a “cult” called Kenja.
      - A 13-year-old girl was the daughter of a Kenja member, and the girl attended what was called a “processing session” with Dyers during which she alleges he sexually assaulted her.
      - In his defence, Dyers said he had an alibi. At the time the girl alleges he sexually assaulted her, he said he had an appointment for an “energy conversion” session with a woman called Wendy.
      - He tendered his appointment diary to show that he had an appointment with Wendy at the time. He did not call Wendy.
    - TJ said to the jury: “you are not entitled to speculate on what the witness might have said if the witness had been called”.
      - Also said that they were “entitled to draw the inference that the evidence of that witness would not have assisted the party who you have assessed should have called that witness”.
      - Went on to say, “you do not have to draw the inference that I have suggested”.
      - TJ emphasised that “it is for the Crown to prove [the charge] and to do so beyond reasonable doubt.
      - And that there is no onus on the accused to prove anything”.
    - The NSWCCA thought that there was nothing wrong with the TJ’s comments, and that it would have been “abundantly clear” to the jury that Dyers did not have to discharge any onus.
    - HCA: Majority held that the TJ’s directions contravened s 20 - quashing the conviction and ordering a re-trial.
      - Majority stressed that nothing must interfere with the Accused person’s right to silence, nor with the presumption of innocence.
      - Unanimously agreed that the accused does not need to give or call any evidence.
  - If the Accused does not give evidence at Trial, these directions should be given:
    - 1. The silence of the Accused is not evidence against the Accused (Azzopardi (2001) 205 CLR 50 [51]),
    - 1. The silence of the Accused cannot be treated as an admission of guilt (OGD (1997) 45 NSWLR 744, R v Baker [2001] NSWCCA 151, Azzopardi (2001) 205 CLR 50),
    - 1. The silence of the Accused cannot be used to fill gaps in the prosecution case (Azzopardi (2001) 205 CLR 50), and
    - 1. The silence of the Accused cannot be used as a make-weight in assessing whether the Crown has proved its case beyond reasonable doubt (Azzopardi (2001) 205 CLR 50)

Week 4: Relevance

Relevance
- Admissibility – A 3 Stage Process
  - In assessing the admissibility of evidence the Court undertakes a three stage process where each threshold must be met before moving to the next step:
    - 1. Relevant / Not Relevant ?
    - 1. If Relevant, are there any Exclusionary Rule that apply ?
    - 1. If no Exclusionary Rule applies, should the Trial Judge use Discretion to exclude the evidence ?
- Common Terms
  - “Fact in issue def” the principle facts to be proven by the party bearing the burden of proof on a particular issue – facts that need to be proven to win your case
  - “Probative value def” means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue – how important is that evidence when trying to prove that fact ?
The Concept of Relevance
- Relevance
  - Relevance is the cornerstone of the Rules of Evidence.
  - In terms of Evidence, the concept of Relevance is widely defined and can appear to be rather subjective. (R v Le)
  - The general rule is that the evidence must have some bearing on a fact in issue.
  - Relevance does not equate to reliability or credibility – plays no part in testing relevance – test assumes the evidence is reliable (Papakosmas v The Queen)
  - Main EA provisions that deal with Relevance are s 55 & s 56. See also s 57 (Provisional Relevance) & s 58 (Inference as to Relevance – relates to relevance of documents etc).
- EVIDENCE ACT 1995 - SECT 55
  - Relevant Evidence
    - (1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
    - (2) In particular, evidence is not taken to be irrelevant only because it relates only to:
      - (a) the credibility of a witness, or
      - (b) the admissibility of other evidence, or
      - (c) a failure to adduce evidence.
  - Relevant evidence to be admissible
    - (1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.
    - (2) Evidence that is not relevant in the proceeding is not admissible.
- Relevance
  - The key concept that underpins s.55 is that there needs to be a logical or rational connection between the evidence and the facts to be proven.
  - Definition requires the minimal logical connection between the evidence and the facts in issue.
  - Court looks at the affect that the evidence could have, if it were accepted.
  - Words like “rational” under the Act, do not necessarily mean what we presume them to mean.
    - What is logical or rational to lawyers and judges may bear little relationship to what is logical or rational to lay people
  - Whether logical or rational connection exists is an objective test grounded in human experience. (per Lindgren J Harrington-Smith v WA [2003] FCA 893)
  - Indirect connection is sufficient (e.g. Defendant expressed intention to kill victim – sufficient to help the trier of fact better assess whether a fact in issue (intention) is present.
  - Does not need to make a fact ‘probable’, just needs to make it more or less probable than it would be without the evidence (probative value).
    - – If no impact on probability, material not relevant
    - – not a stringent or narrow test
    - – only need minimal probative value to satisfy the s 55 test.
- Relevance & Use
  - In litigation, the ‘evidence’ may be relevant in several ways.
    - For example: D told W he robbed a bank.
      - – It may be important to your case to show that D was involved in a conversation with W – therefore the conversation will be relevant to show that a conversation took place.
      - – It may also be important to show what was said in the conversation was actually true – the conversation will be relevant to prove D robbed the bank.
  - Important to be able to identify whether the evidence is Relevant, and if so, for what use / uses.
    - *** One piece of evidence may be used in a number of ways.
      - – Although there may be a rule of evidence that prohibits one of these uses, the evidence may still be permitted for the other use.
  - This becomes especially important when dealing with Hearsay evidence
    - – eg. the Hearsay rule may be used to exclude the evidence that proves the truth about what was said, but that same conversation may be admissible for the purpose of showing that something was said.
- Papakosmas v The Queen (1999) 196 CLR 297
  - Facts: A was convicted of sexually assaulting a colleague at an office Christmas party.
    - The complainant alleged that A forced her to have sexual intercourse in a little room away from the party. The issue at trial was consent.
  - The complainant and three other witnesses gave evidence at trial of her immediate complaints.
  - According to that evidence, when the complainant returned to the party she saw a colleague. The complainant was crying.
    - The colleague asked her what was wrong, and the complainant said that A had raped her.
  - The colleague took the complainant outside to a table where she repeated to complaint to another woman.
    - She was crying and holding her head in her hands and appeared distressed.
    - Shortly afterwards, the complainant repeated her complaint to a third woman.
    - The third woman gave evidence that the complainant was crying uncontrollably and appeared extremely distressed.
  - Issue – Was the evidence given of the complaint relevant ? If so, for what purpose(s) ??
    - 1. It was relevant to proving the facts asserted by the complainant (that she had not consented).
    - 1. It was relevant to supporting the credibility of the complainant.
- Smith v The Queen (2001) 2016 CLR 650
  - Facts: Smith was indicted in relation to the robbery of two banks.
    - Appeal against conviction to NSWCCA dismissed.
  - The fact that the robbery took place was not in issue. Bank security cameras had taken photographs showing what happened.
    - The Prosecution’s case that Smith was the person who was shown in the photographs, standing near the back of the automatic teller machine, apparently keeping lookout while the co-offenders took the money.
  - Issue: The only question for determination by the jury was ‘Is Smith the person represented in the photograph?”
    - The police knew Smith and identified him as the person in the photographs
  - Police not eyewitnesses. They were just looking at the photographs. So what made their act of looking relevant? The jurors could also look at the photographs and decide, by comparing the man in the photo with Smith.
  - The Crown argued that because the police already knew Smith, they were better placed than a juror, and that is what makes the police evidence relevant.
  - Defence argued that the police were in no better position than the jury in making a comparison between the defendant and the photograph.
- Smith v The Queen (2001)
  - [11] Because the witness’s assertion of identity was founded on material no different from the material available to the jury from its own observation, the witness’s assertion that he recognised the appellant is not evidence that could rationally affect the assessment by the jury of the question we have identified.
  - The fact that someone else has reached a conclusion about the identity of the accused and the person in the picture does not provide any logical basis for affecting the jury’s assessment of the probability of the existence of that fact when the conclusion is based only on material that is not different in any substantial way from what is available to the jury.
  - HCA majority held that there was nothing about the police evidence that would rationally help a juror in making his / her own assessment of whether the person in the photograph, was the accused or not.
  - The evidence given by police regarding the identity did not satisfy s 55 – therefore not relevant (and therefore not admissible – s 56).
  - Kirby J (in dissent) held that the evidence given by the police was indirectly relevant as police had seen A in various guises and from various angles and were in a better position to assess if A was the person in photographs.
    - [45] As a matter of legal policy it is undesirable, and unnecessary in terms of rules of admissibility “otherwise provided by [the] Act”, to set the hurdle of relevance too high. (per Kirby J)
- Evans v The Queen [2007] HCA 59
  - Facts: Evans was on trial for armed robbery at the Strathfield Council Chambers.
    - The robber was filmed on security cameras, and was wearing a balaclava, sunglasses and overalls, and said certain words during the robbery.
    - During his trial, under cross-examination, the Prosecutor made Evans put on a balaclava, sunglasses and overalls, walk around in front of the jury, and say the words that the robber had said during the robbery.
  - Appealed all the way to HCA on several grounds – one of which was relevance. Was it relevant for the jury to see the defendant dressed up like that, walking around like that, and saying those words?
  - Gummow and Hayne JJ – said not relevant because it only enabled a comparison between the clothing and the security photographs - revealed nothing about the actual wearer.
    - Kirby J – said that the relevance threshold is broad and should not be used to artificially exclude evidence that is, in fact, problematic (and perhaps inadmissible for other reasons).
  - Heydon J (Crennan J agreeing) – said evidence was relevant but did not prove the whole case against Evans.
  - Showing a resemblance would assist the juror.
    - Also said that, if the evidence showed that Evans didn’t resemble the offender, it would certainly have been relevant for excluding the Evans as the offender.
- Relevance Summary
  - What is the material (evidence) relevant to prove?
  - Does it meet the threshold test in s 55 – could it rationally affect the assessment of the probability of the existence of a fact in issue ? If no, material cannot be admissible (s 56)
  - Not a high threshold – only minimal probative value needed to satisfy s 55.
  - Relevance does not look at issues of reliability or credibility – these issues are dealt with by other provisions.
  - Material may be relevant for more than one purpose.

Week 5: Hearsay Exclusionary Rule

Hearsay Exclusionary Rule
- An introductory thought !!
  - The rule against hearsay has been described by text writers as one of the oldest, most complex, most confusing, most intellectually challenging of the exclusionary rules of evidence, absurdly technical, a conglomeration of inconsistencies, with an unclear definition, an unclear ambit, of bewildering breadth and conceptual complexity, resembling an old-fashioned crazy-quilt made of patches cut from a group of paintings by cubists, futurists and surrealists.
- Debunking the myths about Hearsay
  - Many of the problems associated with the use of Hearsay evidence have been done away with since the introduction of Evidence Act.
    - For many years there had been calls to rationalise the use of Hearsay evidence throughout the Common Law world – numerous studies undertaking including one conducted by ALRC (which lead to development of EA)
  - Main thing to remember when mastering Hearsay is to understand what it really means and why the Courts treat it with trepidation – this will help shape your thinking and hopefully minimise the confusion.
  - In its most simple form, Hearsay relates to information that was not seen / heard by the Witness that is giving the evidence – they have been told about what happened by another person.
    - eg . Adam tells Belinda that he had bought a new laptop for his girlfriend, Clare, as a surprise for her birthday.
  - In this case the only person who really knows the truth of the statement is Adam (the maker of the representation). Evidence from both Belinda and Claire would be considered Hearsay because they did not see Adam buy the laptop.
  - The reason why this presents a problem for the Court is that Hearsay evidence cannot be tested properly – the Court wants to deal with the best evidence available.
  - The Court does not want to deal with evidence that may have been corrupted or influenced as part of the story telling process – it is unfair !!
  - A good example of how the evidence can be corrupted / influenced as part of the story telling process is Chinese Whispers.
  - We need of way of dealing with this type of material to make sure that we do not encounter these types of issues.
  - Under EA, this is the Hearsay Rule and it forms part of the suite of Exclusionary Rules found in Chapter 3 of the Act.
- The Hearsay Rule
  - The Hearsay Rule is a rule that prevents the use of a previous representation to prove that was intentionally asserted in that representation is actually true.
  - It is important to understand that Hearsay is not a type of evidence. It is a use of evidence. Whether evidence of a previous representation is Hearsay depends on the purpose for which the evidence is being used.
    - eg. A Hearsay purpose arises when someone relates what someone else said, not merely to show that it was said, but to prove a fact they asserted in that representation. See Subramaniam v Public Prosecutor [1956] 1 WLR 965
  - Subramaniam v Public Prosecutor [1956] 1 WLR 965
    - Subramaniam taken hostage by Chinese Communists during Malaya crisis. Told by captors that if he talked he would be killed. Tried to use this as defence of duress.
      - Trial Judge held that the comments were hearsay and inadmissible.
      - On appeal, Privy Council held that statement was admissible, but only to show that the statement was made – thereby being enough to scare Subramaniam into doing what he was told.
    - Evidence of a statement made to a witness … may or may not be hearsay.
      - It is hearsay and inadmissible when the object [purpose] of the evidence is to establish the truth of what is contained in the statement.
      - It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.
      - The fact that the statement was made, quite apart from its truth, is frequently relevant …
  - The Hearsay Rule is set out in s59 EA and similar to the other Exclusionary rules in the Act, it provides a prohibition on the use of the material.
    - Several exceptions to the Hearsay Rule are provided for in Part 3.2 of the Act which details the various circumstances where the Court considers it ‘safe’ to use Hearsay evidence to prove the fact asserted.
    - To be able to properly utilise the Hearsay Rule and the Exceptions need to understand various terms such as:
      - Representation
      - Previous Representation
      - Maker of Representation
      - Fact intended to be asserted
  - Representation
    - The EA does not define representation, but in the Dictionary of the Act states that representations include:
      - (a) an express or implied representation (whether oral or in writing – may also include silence or an action), or
      - (b) a representation to be inferred from conduct, or
      - (c) a representation not intended by its maker to be communicated to or seen by another person, or
      - (d) a representation that for any reason is not communicated.
    - A representation is not confined to a matter which is relevant to the immediate facts in issue; it may include a matter which is relevant to understanding the facts in issue (R v Ambrosoli (2002) 55 NSWLR 603). eg. motive rather than mens rea
  - Previous Representation
    - Means a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced.
    - AKA Representation made out of court
  - Maker of Representation
    - The person who made previous representation.
    - AKA the person who claimed something - Adam from laptop
  - Fact Intended to be Asserted
    - What did the Maker of the Representation mean by his / her representation ?
    - Not concerned with the actual representation itself – concerned with the fact that the Maker of the Representation intended to assert. eg. Bob said the band he saw was ‘cool’
  - s 59 The Hearsay Rule-Exclusion of Hearsay Evidence
    - Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.
    - (2) Such a fact is in this Part referred to as an asserted fact.
    - (2A) For the purposes of determining under subsection (1) whether it can reasonably be supposed that the person intended to assert a particular fact by the representation, the Court may have regard to the circumstances in which the representation was made.
    - (3) […]
    - Note : Subsection (2A) was inserted as a response to the decision of the Supreme Court of NSW in R v Hannes(2000) 158 FLR 359 .
  - Implied Assertions & Intention
    - Prior to the amendments to this provision, the Act made no strict reference to implied assertions so following comments by Spigelman CJ in R v Hannes, it was decided to give clearer definition to the term ‘intention’ hence the insertion of ‘reasonably be supposed that the person intended to assert ’ and ss2A.
    - This reinforces the position that under the EA only intended assertions (express or implied) will be subject to the Hearsay Rule (Common Law captured both intended and unintended representations)
      - See Walton v The Queen (1989) 166 CLR 283: where child answered phone and said ‘Hello Daddy’. Under Common Law this comment was captured by Hearsay Rule – under EA this comment would be considered to be unintentional and would not be subject to s59.
    - So if the express or implied assertion is unintended then it is not caught by the Hearsay Rule.
  - Process so far
    - Step 1 is to identify the ‘previous representation’
    - Step 2 is to work out who made the representation. (this becomes important when working out what exceptions to the Hearsay Rule may / may not apply).
    - Step 3 is to derive the intention of the Maker in making the representation. If made unintentionally, it will not be captured by s59.
    - Step 4 is to identify the purpose of the evidence. Is it being adduced to prove the existence of an asserted fact? (Yes = hearsay - s59 applies; No = not hearsay - s59 does not apply).
- First-Hand and More Remote Hearsay
  - Overarching aim of EA is to let in as much relevant evidence as possible whilst still ensuring that the evidence is reliable and fair.
  - Over the years, some types of ‘problematic’ evidence have been assessed as being potentially reliable if certain criteria are met, or the evidence is handled in a particular manner.
  - This point is true in relation to some forms of Hearsay evidence. In certain circumstances it may be possible to apply one of the various exceptions to the Hearsay Rule – because they are potentially reliable.
  - Main exceptions to the Hearsay rule fall into two categories - ‘First-Hand Hearsay Exceptions’ or ‘More Remote Hearsay Exceptions’.
  - Essentially, First-Hand Hearsay is where the previous representation (containing an asserted fact) was made by the Maker in the presence of the person who gives evidence about it (Witness). See s62
    - There is only one degree of separation between the Maker of the Previous Representation and the Witness relating that asserted fact.
  - If there is a greater degree of separation between the Maker of the Previous Representation and the person giving the evidence (Witness), that is referred to as ‘More Remote Hearsay’.
  - The degree of remoteness becomes important when applying the exceptions under Part 3.2
  - Under s62, there is a requirement that it must be reasonably supposed that the Maker of the Previous Representation has personal knowledge of the asserted fact because of what he / she has seen, heard or otherwise perceived and makes a representation about that fact to the Witness.
- Examples
  - Molly says to Wendy that she saw the man with the gun.
    - Wendy’s evidence would be considered First-Hand Hearsay about Molly having seen the man with the gun because it has come directly from the Maker of the previous representation (Molly) who has personal knowledge of the asserted fact.
  - Molly says to Wendy that she saw the man with gun. Wendy then tells Richard about what Molly told her.
    - The giving of this evidence by Richard would be considered More Remote Hearsay because the asserted fact has not come directly from the Maker (Molly) who has personal knowledge of what happened.

Week 6: Hearsay Evidence

Hearsay Evidence
- Hearsay Revision
  - The Hearsay Rule is set out in s 59 EA and similar to the other Exclusionary rules in the Act, it provides a prohibition on the use of the material.
  - Several exceptions to the Hearsay Rule are provided for in Part 3.2 of the Act which details the various circumstances where the Court considers it ‘safe’ to use Hearsay evidence to prove the fact asserted.
  - To be able to properly utilise the Hearsay Rule and the Exceptions need to understand various terms such as:
    - Previous Representation
    - Maker of Representation
    - Fact intended to be asserted
    - First-hand Hearsay v More Remote Hearsay
- First Hand and More Remote Hearsay
  - Essentially, First Hand Hearsay is where the previous representation def (containing an asserted fact) was made by the Maker in the presence of the person who gives evidence about it (Witness). See s 62
    - There is only one degree of separation between the Maker of the representation and the Witness relating that asserted fact.
  - If there is a greater degree of separation between the Maker of the previous representation and the person giving the evidence (Witness), that is referred to as ‘More Remote Hearsay’.
  - The degree of remoteness becomes important when applying the exceptions under Part 3.2
  - Under s 62, there is a requirement that it must be reasonably supposed that the Maker of the previous representation has personal knowledge of the asserted fact because of what he / she has seen, heard or otherwise perceived and makes a representation about that fact to the Witness.
Exceptions to Hearsay Rule
- Exceptions to Hearsay Rule
  - Specific exceptions to the Hearsay Rule include:
    - First-hand hearsay:
      - Civil proceedings, if maker of representation is not available (s 63)
      - Civil proceedings, if maker of representation is available (s 64)
      - Criminal proceedings, if maker of representation is not available (s 65)
      - Criminal proceedings, if maker of representation is available (s 66)
  - Contemporaneous statements about a person’s health etc (s 66A)
  - Business records (s 69)
  - ATSI traditional laws and customs (s 72)
  - Use of evidence in Interlocutory proceedings (s 75)
    *** Evidence relevant for a non-hearsay purpose (s 60)
    *** Admissions (s 81)
    *** Character Evidence (s 110)
- Overview of First Hand Hearsay Exceptions
- Maker Availability
  - Dictionary, cl.4 Unavailability of persons
    - (1) For the purposes of this Act, a person is taken not to be available to give evidence about a fact if:
      - (a) the person is dead, or
      - (b) the person is, for any reason other than the application of section 16 (Competence and compellability: judges and jurors), not competent to give the evidence about the fact, or
      - (c) it would be unlawful for the person to give evidence about the fact, or
      - (d) a provision of this Act prohibits the evidence being given, or
      - (e) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or to secure his or her attendance, but without success, or
      - (f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success.
    - (2) In all other cases the person is taken to be available to give evidence about the fact.
- s 63 Exception to Hearsay Rule
  - s 63 Civil proceedings, if maker of representation is not available
    - (1) This section applies in a civil proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.
  - (2) The hearsay rule does not apply to:
    - (a) evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made, or
    - (b) a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation.
  - Note: Section 67 imposes notice requirements relating to this subsection.
  - s 63 provides the lowest threshold for the admissibility of Hearsay Evidence.
  - Merely requires that the Witness saw, heard or perceived the representation being made by the Maker.
  - If a party intends to call such evidence to be used for its Hearsay purpose (ie. to prove the asserted fact in the previous representation), that party must conform and provide a Notice to the other party pursuant to s 67 EA.
- s 64 Exception to Hearsay Rule
  - s 64 Civil proceedings, if maker of representation is available
    - (2) The hearsay rule does not apply to:
      - (a) evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made, or
      - (b) a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation,
      - if it would cause undue expense or undue delay, or would not be reasonably practicable, to call the person who made the representation to give evidence.
    - Note. Section 67 imposes notice requirements relating to this subsection. Section 68 is about objections to notices that relate to this subsection.
    - (3) If the person who made the representation has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by:
      - (a) that person (Maker), or
      - (b) a person who saw, heard or otherwise perceived the representation being made.
    - [section continues…]
  - The effect of s 64 is that it provides the party calling the Hearsay evidence a wide degree of flexibility.
  - s 64(2) enables a party to adduce the Hearsay evidence through a Witness if it would cause undue delay or expense, or would be not be reasonably practicable to call the Maker of the previous representation.
    - This is very broadly defined and applied and takes into account cost of securing Maker, length of trial, health and location of maker.
    - *Requires reasonable written notice of intention to call such evidence (s 67).
  - s 64(3) provides that if the Maker is called to give evidence, either:
    - The Maker of the previous representation; or
    - A person who saw, heard or otherwise perceived the previous representation
  - can give evidence of the asserted fact.
- s 65 Exception to Hearsay Rule
  - s 65 Criminal proceedings, if maker of representation is not available
    - (2) The Hearsay Rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation:
      - (a) was made under a duty to make that representation or to make representations of that kind, or
      - (b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or
      - (c) was made in circumstances that make it highly probable that the representation is reliable, or
      - (d) was:
        
        (i) against the interests of the person who made it at the time it was made; and
        
        (ii) made in circumstances that make it likely that the representation is reliable.
      - Note. s 67 imposes notice requirements relating to this subsection.
  - s 65(2) imposes more demanding requirements on the Prosecution.
    - This is because the evidence will be used against a Defendant who is presumed to be innocent, so there should be greater safeguards in relation to potentially unreliable evidence (not just warning or a discretionary exclusion).
  - For the Prosecution, it is not enough that the unavailable maker of the representation had personal knowledge of the asserted fact, and that evidence of the representation will be given by a person who saw, heard or perceived the representation being made – the representation must have been made either:
    - A. Under a duty
    - B. Shortly after asserted fact occurred (reduces chance of fabrication)
    - C. In circumstances highly probable to be reliable (Conway v The Queen)
    - D. Against the interests of the maker.
  - (3) The Hearsay Rule does not apply to evidence of a previous representation made in the course of giving evidence in an Australian or overseas proceeding if, in that proceeding, the Defendant in the proceeding to which this section is being applied:
    - A. cross-examined the person who made the representation about it, or
    - B. had a reasonable opportunity to cross-examine the person who made the representation about it.
  - (4) [… Relates to Co-Accused]
  - (5) For the purposes of ss(3) and (4), a Defendant is taken to have had a reasonable opportunity to cross-examine a person if the Defendant was not present at a time when the cross-examination of a person might have been conducted but: (a) could reasonably have been present at that time, and (b) if present could have cross-examined the person.
  - (6) Evidence of the making of a representation to which ss(3) applies may be adduced by producing a transcript, or a recording, of the representation that is authenticated by: (a) the person to whom, or the court or other body to which, the representation was made, or (b) if applicable, the registrar or other proper officer of the court or other body to which the representation was made, or (c) the person or body responsible for producing the transcript or recording.
  - Under ss 65(3) – 65(6) Statements made in previous court proceedings may be adduced for their Hearsay purpose as long as the Defendant had opportunity to cross-examine in those earlier proceedings. eg. evidence in committal proceedings being used again at trial.
  - Puchalski v R held that what is required is that Defendant cross-examined the person in the earlier proceeding or had a reasonable opportunity to do so – the exception does not rely on nature and extent of cross-examination.
  - (8) The Hearsay Rule does not apply to:
    - (a) evidence of a previous representation adduced by a Defendant if the evidence is given by a person who saw, heard or otherwise perceived the representation being made, or
    - (b) a document tendered as evidence by a Defendant so far as it contains a previous representation, or another representation to which it is reasonably necessary to refer in order to understand the representation.
  - Note. s 67 imposes notice requirements relating to this subsection.
  - (9) If evidence of a previous representation about a matter has been adduced by a Defendant and has been admitted, the hearsay rule does not apply to evidence of another representation about the matter that:
    - (a) is adduced by another party, and
    - (b) is given by a person who saw, heard or otherwise perceived the other representation being made.
  - s 65(8) imposes are far less demanding threshold for the admission of the asserted fact for its Hearsay purpose, if adduced by the Defendant.
    - Essentially, this is the same level required under s 63 (Civil – Maker not available: person who heard / saw/ perceived previous representation can give evidence of the asserted fact.)
    - This is because of the notions of fairness to the Defendant.
  - s 65(8) is designed to promote the admission of exonerating statements of the alleged victim, confessions of 3rd parties and statements of deceased persons.
  - s 65(9) provides the Prosecution the ability to ‘reply’ to any material adduced by the Defendant under s 65(8), by adducing its own Hearsay evidence that qualifies or explains the Defendant’s s 65(8) evidence.
- s 66 Exception to Hearsay Rule
  - s 66 Criminal proceedings, if maker of representation is available
    - (2) If that person (Maker) has been or is to be called to give evidence, the Hearsay Rule does not apply to evidence of the representation that is given by:
      - (a) that person (Maker), or
      - (b) a person who saw, heard or otherwise perceived the representation being made,
    - if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation.
    - (2A) In determining whether the occurrence of the asserted fact was fresh in the memory of a person, the Court may take into account all matters that it considers are relevant to the question, including:
      - (a) the nature of the event concerned, and
      - (b) the age and health of the person, and
      - (c) the period of time between the occurrence of the asserted fact and the making of the representation.
    - Note. Subsection (2A) was inserted as a response to the decision of the High Court of Australia in Graham v The Queen (1998) 195 CLR 606.
    - [section continues…]
  - s 66 provides that in criminal proceedings where the Maker of the previous representation is available and the previous representation is to be used to prove the asserted fact (ie. for its Hearsay purpose) the Maker of the representation must be called to give evidence.
  - As well as limiting the ambit of the exception , s 66 imposes an additional limitation:
    - the requirement that the occurrence of the asserted fact be “fresh in the memory” of the Maker of the previous representation - “freshness” is only required in criminal matters.
  - The “fresh in the memory” requirement in s 66(2) has long been the subject of judicial consideration.
  - In the HCA judgment in Graham v The Queen (1998) 195 CLR 606, the majority held that the term “fresh” meant “recent” or “immediate” - thereby requiring the statement to be made very soon after the event in question.
    - “the temporal relationship” required will very likely be measured in hours or days, not, as was the case here (Graham’s case), in years.
  - This strict temporal requirement held in Graham’s case was considered too limiting and was amended by the insertion of s 66(2A).
  - s 66(2A) provides guidance to the Court when determining whether something is “fresh in the memory”. Court may now take into account such things as
    - The nature of the event concerned; and
    - The age and health of the person; and
    - The period of time between the occurrence of the asserted fact and the representation.
  - As held in Regina v XY [2010] NSWCCA 181 the temporal relationship between the asserted fact and the making of the representation remains relevant but is in no way determinative of the question. Importantly the court must now take into account the nature of the event concerned.
  - s 66(3) provides that the s 66(2) Hearsay exception does not apply to evidence of the previous representation that is adduced by the Prosecution, which:
    - a. was made for the purpose of indicating what evidence that person would be able to give (called a proof of evidence); and
    - b. deals with matters other than the identity of a person, place or thing.
- Graham v The Queen (1998) 195 CLR 606
  - Graham was a case where the complainant was raped by her father.
    - It was 6 years before she told somebody about it, and it was this 6 year delay which the HCA said made her complaint lose its “freshness”.
  - You might think that being raped by your father would be very memorable, and would remain memorable for more than a few hours or days, and that 6 years later you could probably still have a clear memory of it.
  - Nevertheless, the HCA did not think so, and this is why there has been an amendment to s 66, directly as a result of the decision in Graham.
- 66A Exception: contemporaneous statements about a person’s health etc
  - s 66A provides that the Hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about the person’s health, feelings, sensations, intention, knowledge or state of mind.
  - This means that a person’s physical, mental state or intentions, etc can be inferred by what they say.
    - eg. The fact that the Sue says to William “I have really bad a headache at the moment” can be adduced by William to prove that fact that Sue did have a headache at that time.
- Some Other Hearsay Exceptions
  - Essentially, under s 69 the Hearsay Rule does not apply to business documents, so that the documents can be used to prove the facts about the business and what is contained in the business document.
    - s 69 operates together with the rules about proving the contents of documents from ss 48-50.
  - Both ‘business’ and ‘document’ are very broadly defined, and the rationale here is to save time. It is presumed that business records accurately record the business. If they do not, a party would need to call evidence to prove that.
  - s 70 is a similar exception to s 69, and it applies to tags and labels. eg. it can be presumed that a letter was in fact posted in Wagga on the 8th of June if that is what the postmark says.
  - s 71 says that with electronic communications, information about who it came from, who it was sent to, the time and date, will not be caught by the hearsay rule.
  - s 72 provides that the hearsay rule does not apply to evidence of a representation about the existence or non-existence, or the content, of the traditional laws and customs of an Aboriginal or Torres Strait Islander group.
  - s 75 says that the hearsay rule does not apply in Interlocutory Proceedings if the source of the evidence is adduced.
- Overview of Hearsay Evidence

Week 7: Witness Credibility / Character Evidence

Witness Credibility
- What is Credibility ?
  - Credibility evidence is evidence that deals with honesty / reliability of the witness and how that can impact on the acceptance of his / her evidence.
  - Credibility evidence can be used to strengthen or attack the truthfulness and reliability of the witness or their evidence.
  - General premise is that courts are interested in hearing evidence that is reliable, honest and therefore credible. The rules pertaining to credibility are about the quality of the evidence.
  - Courts are not interested in hearing about blemishes upon the reputation, history or morality of a witness unless those blemishes could affect the quality of the evidence the witness can give.
  - This type of evidence extends beyond the veracity of the evidence given by the Witness - extends to whether the Witness has the capability to be reliable.
- What is Credibility ?
  - Credibility evidence could include:
    - Evidence relating to W’s general honesty, expertise or standing in the community.
    - Evidence showing that W has a motive to lie.
    - Evidence that shows that W is giving evidence that is either consistent or inconsistent with other statements that W has made.
    - Evidence that relates to W’s capacity for accurate observation / recollection.
- What is Credibility ?
  - When looking at credibility evidence two questions need to be asked:
    - Can we use this evidence to either bolster or attack the credibility of a witness ?
    - If so, under what circumstances is it fair to do so ?
  - Credibility evidence is evidence that helps the Trier of Fact assess the credibility of a witness and therefore may impact on the veracity of the evidence that he / she can give.
  - Credibility evidence is commonly referred to as ‘ancillary evidence’ or ‘collateral evidence’ because it has a derived relevance to the facts in issue – relevant because probability of W telling truth may impact on existence of a fact in issue.
- Reasons why you would wish to use credibility evidence.
  - As lawyers there are three main ways of using the evidence:
    - 1. You may want to attack the credibility of an opponent’s witness.
    - 1. You may want to bolster the credibility of your own witness.
    - 1. You may want to attack the credibility of your own witness, for instance, if they are an unfavourable witness.
- Credibility under the Evidence Act
  - As defined in EA Dictionary - credibility of a witness means the credibility of any part, or all, of the evidence of the witness, and includes the witness’s ability to observe or remember facts and events about which the witness has given, is giving, or will give in evidence.
  - Obviously, credibility evidence is relevant evidence because it affects the probability that the W is telling the truth – this in turn affects the probability of the existence of the facts about which he / she is testifying - collateral evidence.
  - Unfortunately, credibility evidence can impact on issues that have no direct bearing on a fact in issue – therefore strict restrictions are placed on its use as evidence (fairness and efficiency).
- Credibility under the Evidence Act
  - Under the EA, credibility is dealt with as part of the Exclusionary Rules within Part 3.7 of the Act.
  - Similar to the other Rules of Exclusion within the Part 3.7, the Credibility Rule (s102 EA) provides a prohibition on evidence used for a particular purpose (in this case a credibility purpose), but then sets out various exceptions to that rule.
  - Under the current amendments to the EA, s102 provides that:
    - Credibility evidence about a witness is not admissible.
- Using s101A
  - The strange and unintended outcomes from HCA decision in Adam v The Queen (2001) 183 ALR 625 resulted in the amendment of s102 and the insertion of s101A in order to make the purpose and application of the Credibility Rule clearer.
  - Purpose of s101A is to provide guidance when evidence that is relevant for a credibility purpose will be subject to the Credibility Rule (s102)
- Adam v The Queen (2001) 183 ALR 625
  - Sako was originally investigated and charged for murdering a police officer but the charge was later withdrawn. He made a statement to the police naming Adam and Sako’s brother as murders.
  - Sako called by P to give evidence, evidence contrary to police statements and was declared “unfavourable” (s38). P given leave to cross-examine him on his prior inconsistent statement (attack his credibility). Because of Sako’s change of story, his statement to police became inadmissible for its hearsay purpose (no longer first hand). But s60 allows hearsay evidence to be admitted if it is admissible for another purpose.
  - Prior to amendments, if evidence was “relevant only” to credibility it would be excluded. In this case, because this evidence was also relevant for a hearsay purpose (by virtue of s60) the HCA said that the Credibility Rule did not apply. This was in effect a loophole in the law.
  - HCAs very narrow reading of the old s102 resulted in Sako’s evidence not being subjected to either the hearsay rule or credibility rule – veracity of that evidence was not assessed. Hence s101A amendment.
- Using s101A
  - Credibility evidence, in relation to a witness or other person, is evidence relevant to the credibility of the witness or person that:
    - (a) is relevant only because it affects the assessment of the credibility of the witness or person, or
    - (b) is relevant:
      - (i) because it affects the assessment of the credibility of the witness or person, and
      - (ii) for some other purpose for which it is not admissible, or cannot be used, because of a provision of Parts 3.2 to 3.6.
  - Notes.
    - 1 Sections 60 and 77 will not affect the application of paragraph (b), because they cannot apply to evidence that is yet to be admitted.
    - 2 Section 101A was inserted as a response to the decision of the High Court of Australia in Adam v The Queen (2001) 207 CLR 96.
- Section 101A Pathways
- Exceptions to Credibility Rule
  - Many different exceptions to the Credibility Rule.
  - Specific exceptions to the Credibility Rule when:
    - Evidence is adduced in cross-examination (ss103 & 104)
    - Evidence is used for rebut denials (s106)
    - Evidence is used to re-establish credibility (s108)
    - Evidence of persons with specialised knowledge (s108C)
    - Evidence relates character of the accused (s110)
- Exceptions to Credibility Rule
  - Cross Examination as to Credibility
    - s103(1) provides that the Credibility Rule does not apply if evidence adduced in cross examination could substantially affect the credibility of witness.
      - ‘Could’ means ‘capable of’ substantially affecting the assessment of the credibility of the witness, as opposed to whether it is likely to do so (R v Shamouil (2006) 66 NSWLR 228).
      - R v Lodhi [2006] NSWSC 670 provides guidance on the interpretation of the s103 exception. Whealey J found that the use of the word ‘substantially’ should be given its full import. The test will be satisfied if the credit of the witness cannot be determined adequately without regard to the evidence.
- Exceptions to Credibility Rule
  - Cross Examination as to Credibility
    - High threshold of admissibility is designed to ensure that W is not open to cross examination on aspects of his / her creditability – unless the cross examination is capable of having a bearing on the assessment of W’s reliability.
    - When assessing the ‘substantially affect’ threshold, s103(2) provides that the Court is to have regard to:
      - whether the evidence tends to prove that the witness knowingly or recklessly made a false statement ; AND
      - the period of time that has elapsed since act / event to which evidence relates, took place.
- Exceptions to Credibility Rule
  - Cross Examination as to Credibility
    - Cross examination is permitted for such things as:
      - Testing the capacity / opportunity for accurate observation / recollection by Witness.
      - Testing bias / motive for Witness to be untruthful.
      - Exploring previous convictions for dishonesty.
    - Under s103 EA, also permitted to cross examine about:
      - Prior Inconsistent Statements
      - Occasions where W has failed to tell truth when under an obligation to do so.
  - Examination of Unfavourable Witness may include cross examination on credibility.
- Exceptions to Credibility Rule
  - Cross Examination as to Credibility of Defendant
    - In criminal cases, s104 EA provides further protections in addition to s103 when the Defendant is to be cross examined about his / her credibility.
    - Pursuant to s104(2) the Defendant cannot be cross examined about his / her credibility without the leave of the Court.
    - Important to note that under s104(3), the Prosecutor does not require leave if the Defendant is cross examined about:
      - Bias / motive to be untruthful.
      - Inability for Defendant to recall matter to which his / her evidence relates.
      - The making of a Prior Inconsistent Statement.
- Exceptions to Credibility Rule
  - Cross Examination as to Credibility of Defendant
    - Under s104(4) leave must not be given to Prosecution for cross-examination of Defendant unless the evidence adduced by the Defendant:
      - (a) tends to prove that a Prosecution Witness has a tendency to be untruthful, and
      - (b) that the evidence is relevant solely or mainly to the Prosecution Witness’s credibility.
    - Important to remember that s104 must be read in conjunction with s103 when cross examining the Defendant about his / her credibility.
- Exceptions to Credibility Rule
  - Rebutting Denials
    - General rule is that allegations denied under cross examination may not be rebutted if the evidence is only relevant to the credibility of the Witness. In such circumstances:
      - The answer given by Witness is final.
      - You are unable to call evidence from another Witness in order to rebut the denial.
  - Can only rebut these denials if you conform to the requirements set out in s106.
- Exceptions to Credibility Rule
  - Rebutting Denials
    - s106 (1) states that the Credibility Rule does not apply to evidence that is relevant to a witness’s credibility and that is adduced otherwise than from the witness if:
      - (a) in cross-examination of the witness:
        
        (i) the substance of the evidence was put to the witness, and
        
        (ii) the witness denied, or did not admit or agree to, the substance of the evidence, and
      - (b) the court gives leave to adduce the evidence.
  - Rebutting Denials
    - s106 (2) provides that leave under ss(1)(b) is not required if the evidence tends to prove that the witness:
      - (a) is biased or has a motive for being untruthful,
      - (b) has been convicted of an offence, including an offence against the law of a foreign country,
      - (c) has made a prior inconsistent statement,
      - (d) is, or was, unable to be aware of matters to which his or her evidence relates,
      - (e) has knowingly or recklessly made a false representation while under an obligation, imposed by or under an Australian law or a law of a foreign country, to tell the truth.
  - Re-establishing Credibility - s108
    - If W’s credibility has been impeached during cross examination s108 (1) allows credibility evidence to be led in re-examination about matters that arose during cross examination of W.
    - Under s108(3) the credibility rule does not apply to evidence of a Prior Consistent Statement of Witness if:
      - (a) evidence of a Prior Inconsistent Statement of the Witness has been admitted - (ie. used to counter the PIS)
        
        Or
      - (b) it is / will be suggested that the evidence given by the Witness has been fabricated, re-constructed, or is the result of suggestion (ie. used to rebut an allegation of recent invention)
    - *** Leave is required if trying to adduce evidence of Prior Consistent Statment under s108(3)
7B: Character Evidence
- Overview of Character Evidence
  - Character evidence relates to a Defendant’s personal qualities, reputation, or social standing.
  - General principle is that the Defendant should not be judged on his character (fairness principle).
  - However, long been considered that a person’s good character may be able to show that he / she would not commit such an offence. Therefore rules have developed to allow the Defendant to raise the issue of good character.
  - Under the EA, rules about character evidence apply only in criminal proceedings, and only to the character of the Defendant. (s 109 EA)
  - EA provides a way for the Defendant to adduce evidence of his / her good character (or at least an aspect of it) to help support their case. Leading good character comes with risks !!!
- Relevance of Character Evidence
  - Character evidence is legally relevant because as Gaudron J puts it in TKWJ v R (2002) 212 CLR 124, 135:
    - “Evidence of good character is not merely evidence as to credit. It is, in terms used in s 55 of the Evidence Act, evidence that “could rationally affect (directly or indirectly) the assessment of the probability” that the Defendant committed the offence or offences charged (33).”
  - For example character evidence could be relevant to show:
    - that it is unlikely for a person of good character would commit the offence; or
    - that where the Defendant has given evidence, that they should be assessed as being a creditable witness. (see Eastman v The Queen (1997) 76 FCR 9)
- Issues with Character Evidence
  - Rationale for such a rule is that it helps address the imbalance that may be suffered by the Defendant – only real way for Defendant to put themselves in a positive light. (Acts as a way of enhancing his / her credibility.)
  - Problem is that studies show that a person’s good character is a not a reliable way of predicting whether a person has committed a crime.
    - These studies show that perhaps tendency evidence ought to be preferred over character evidence. Unfortunately, EA has not followed this approach.
  - Danger of Trier of Fact wrongly estimating probative value of character evidence.
  - Trier of Fact may also think that the good character of the Defendant should be used to balance against the offence committed.
- s 110 Evidence About Character of Defendant
  - s 110(1) EA provides that where the Defendant adduces evidence which proves (directly or indirectly) that he / she is a person of good character, the Hearsay Rule, Opinion Rule, Tendency Rule and Credibility Rule do not apply. (ie – the evidence will not be excluded by operation of these rules).
  - Essentially, s 110 allows the Defendant to call evidence that would be otherwise considered to be inadmissible eg.
    - Defendant may call a witness who says that she was told that the Defendant does charity work (Hearsay) - without the evidence being excluded under s 59 or having to conform to any of the Hearsay exceptions.
    - Defendant may call a witness who says that he thinks the Defendant is a wonderful person and that he is sure the Defendant would not have committed such an offence (Opinion) –
      - without the evidence being excluded under s 76 or having to conform to the requirements of any exceptions to the Opinion Rule (s 78 or s 79).
  - s 110(1) also provides that the evidence of good character can be general or relate to a specific aspect of the Defendant reputation.
    - For example;
      - “I am a peaceful person who hates all forms of violence.”
      - “I have never physically attacked someone, without provocation.”
      - “I have never assaulted somebody with anything but my hands – nobody has ever had to go to the hospital.”
    - *** Leading specific aspects of reputation is known as ‘splitting character’
  - s 110(2) provides that where the Defendant has lead evidence of general good character, the Prosecution and / or a Co-Defendant may call evidence that the Defendant is not of good character (generally)
  - s 110(3) provides that where the Defendant has lead evidence of good character that relates to a specifical aspect, the Prosecution and / or a Co-Defendant may only call evidence that the Defendant is not of good character in relation to that specific aspect.
- s 110 Evidence About Character of Defendant
  - (1) The hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced by a defendant to prove (directly or by implication) that the defendant is, either generally or in a particular respect, a person of good character.
  - (2) If evidence adduced to prove (directly or by implication) that a defendant is generally a person of good character has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove (directly or by implication) that the defendant is not generally a person of good character.
  - (3) If evidence adduced to prove (directly or by implication) that a defendant is a person of good character in a particular respect has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove (directly or by implication) that the defendant is not a person of good character in that respect.
  - R v Zurita [2002] NSWCCA 22
    - The case of Zurita demonstrates how s 110 is supposed to operate. The TJ had said that character evidence is an “all or nothing matter … either you are a good person or you are not” and that character could not be divided into components. As a result of that ruling the Defendant opted not to raise any good character evidence.
    - Zurita appealed the TJ’s ruling. The NSWCCA upheld the appeal saying that by preventing Zurita from splitting character, it prevented him from putting before the jury evidence that Zurita had no prior convictions for sex crimes against children.
    - If Zurita was permitted to do so, the Crown would have been limited to attacking Zurita only on the issue of sex crimes against children and not his character generally.
- s 112 Leave to Cross Examine about Character
  - s 112 requires that the Defendant must not be cross-examined about character unless Court grants leave to do so (Leave – s 192).
  - s 192(1) provides that the Court may give any leave, permission or direction on such terms as it thinks fit.
  - s 192(2) stipulates the minimum factors that must be taken into account by the Court when considering an application for leave.
  - These factors include:
    - extent of possible effects to length of hearing;
    - extent to which granting / denying leave maybe unfair to party or witness;
    - Importance of evidence;
    - Nature of proceedings;
    - Possibility of adjourning or making alternative orders
  - Stanoevski v The Queen (2001) 202 CLR 115 .
    - HCA required to consider whether leave should have been granted for P to cross-examine Stanoevski ‘about matter arising out of evidence of’ good character.
    - HCA decision in Stanoevski sets out that leave to cross-examine on character should not be granted if there is a chance:
      - of a miscarriage of justice;
      - it would be unfair; or
      - it would distract the jury from the real facts in issue.
    - HCA decision in Stanoevski also says that cross-examination on character needs to have sufficient probative value in relation to the facts in issue, in order for leave to be granted under s 192.
- Advance Rulings on Grant of Leave
  - Question of leading evidence of good character (generally or specifically) can have a large impact on conduct of D’s case – if D elects to lead such evidence may open him/herself to forensic disadvantage (usually cross examination of previous criminal history etc).
  - Under s 192A, D may seek an advance ruling to see whether, or not, Court will grant leave to the Crown to cross-examine on character - forensic advantage if D knows the likelihood before he / she elects to lead character evidence. Court “may” consider giving an advanced ruling – is not bound to give a ruling.
  - In HCA decision in TKWJ v The Queen, it was held that there is no requirement for the TJ to give an advance ruling as to whether, or not, leave to cross-examination on character would be granted.
- Judicial Comments and Discretions
  - Use / exclusion of character evidence is subject to Discretionary Rules in Part 3.11 EA.
  - Judge may comment that although someone may be of previous good character, there is always a first time for committing an offence – evidence of previous good character should not prevail against evidence of guilt.

Week 8: Evidence for Non-Hearsay Purpose / Admissions

Evidence for Non-Hearsay Purpose
- Hearsay & Multi-Purpose Evidence
  - A Hearsay purpose arises when a previous representation is made and is used to prove a fact that was intended to be asserted in the previous representation.
    - Such a use is prohibited under s 59.
  - Important to remember that a single piece of evidence may have more than one use / purpose. For example, one piece evidence may have a hearsay use and credibility use – (as was the case in Papakosmas).
  - Other types of exception to the Hearsay Rule exist when dealing with hearsay material that also has a Non-Hearsay purpose.
    - s 60 exception
    - s 81 exception relating to Admissions
- Section 60 Exception to the Hearsay Rule
  - Basically, s 60 provides a way of allowing evidence that has already been admitted for its Non-Hearsay purpose (e.g. Credibility purpose) to then be used for its Hearsay purpose.
  - s 60 introduced in order to avoid artificial situation of Jury having to ‘compartmentalise’ the evidence before them ie. “You can use the statement to assess the credibility of the Witness, but you can’t use it to assess the truth of what was said.”
  - As seen in Lee v The Queen and Adam v The Queen s 60 has been problematic.
- Lee v The Queen (1998) 195 CLR 594
  - Lee convicted of robbing a video shop in Paddington. Crown case was that 2 men entered the video shop, produced a gun and demanded money.
    - The shop employee successfully fought them off:
      - she hit Lee on the head with a tape dispenser, then jabbed him with the stool she was sitting on.
  - A short time later, police saw Lee in the street with a man called Calin. They were both arrested.
  - Calin questioned by police and made statement about how he had met Lee in the street and talked to Lee about paying back money owed to Calin.
    - In police statement Calin also said that Lee looked sweaty and that Lee had told him to go away as he (Lee) had just fired 2 shots and had done a job.
  - Calin called by P and in XIC he failed to adopt his statement regarding what Lee had said about robbery – therefore no longer admissible under First Hand Hearsay exceptions.
    - Leave granted to XX under s 38 (Unfavourable Witness) – xx on Prior Inconsistent Statement.
  - Having had PIS admitted for its Credibility purpose, P then relied on s 60 so it could be used for its Hearsay Purpose as well.
  - Trial Judge and NSWCCA both held that s 60 could be applied.
  - HCA unanimously held that s 60 could not be applied because s 60 does not make the assertion in the PR true if the witness did not intend to assert that fact.
    - Calin could not know whether Lee had committed the robbery so the only ‘intention’ that can flow from the Calin representation was that Lee had said these words – not that he had committed the robbery.
  - HCA also raised the question as to whether s 60 could only be used in relation to First Hand Hearsay.
  - Resulted in several amendments to s 60 to rectify confusion that flowed from the HCA approach.
- s 60 – Hearsay Exception
- s 60 Exception: evidence relevant for a non-hearsay purpose
  - (1) The Hearsay Rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact.
  - (2) This section applies whether or not the person who made the representation had personal knowledge of the asserted fact (within the meaning of section 62 (2)).
  - Note : Subsection (2) was inserted as a response to the decision of the High Court of Australia in Lee v The Queen (1998) 195 CLR 594
    - (3) However, this section does not apply in a criminal proceeding to evidence of an admission. The admission might still be admissible under section 81 as an exception to the hearsay rule if it is “first-hand” hearsay: see section 82.
- s 60(1) provides the exclusion to the Hearsay Rule.
- s 60(2) amendment provides clear indication that s 60 is not to be limited to First-hand Hearsay only.
  - s 60(2) was inserted in ordered to negate the view expressed by HCA in Lee v The Queen which held that s 60 could not be applied to Second-hand or More Remote Hearsay.
- s 60(3) was also inserted after Lee v The Queen in order to make clear that in a Criminal matter, s 60 will not apply to evidence of an Admission.
  - However, s 81 EA may provide an exception to the Hearsay Rule if the evidence of the Admission is ‘first-hand’ evidence.
- s 60 – Hearsay Exception
- As a result of the amendments made to the s 60 after the HCA decision in Lee v The Queen (1998) and the problems associated with the HCA decision in Adam v The Queen it is clear that the ‘evidence’ must already have been admitted for its Non-Hearsay purpose before s 60 can become operative. (remember s 101A requirement regarding Credibility use)
- Using s 60 (for good rather than evil)
  - Main use for s 60 comes about where evidence of previous representations contained in either a Prior Inconsistent Statement (PIS) or a Prior Consistent Statement (PCS) have been admitted for their Credibility purpose and you want to use those previous representations for their Hearsay purpose.
    - For PIS – generally rely on either s 103 or s 106
    - For PCS – generally rely on s 108
  - Once the material has been admitted for its non-hearsay purpose, s 60 can be applied to allow the evidence relevant for a non-hearsay purpose to be admitted to prove the fact asserted in the previous representation(s).
- AN EXAMPLE OF WHEN s 60 CAN BE APPLIED
- The s 60 Pathway
  - Situation
    - Your Witness has made a Statement to the Police, but in your Examination-in- Chief, he fails to come up to proof (ie he fails to adopt what was said in his Police Statement). How can you use what was said in the Prior Inconsistent Statement (PIS) as evidence of the truth of what was asserted in it ???
      - Make an application to have your Witness declared an Unfavourable Witness ( s 38).
      - Seek leave ( s 192) to ask leading questions of your Witness ( s 42).
      - Cross examine the Witness on Prior Inconsistent Statement ( s 43).
      - Assess under s 101A:
        
        Evidence has 2 purposes – Credibility and Hearsay but not admissible for its Hearsay purpose (at this point in time).
        
        Credibility Rule ( s 102) must be applied.
      - Although s 102 applies, can use either s 103 and s 106 (Credibility Rule exceptions) to get evidence in for its Credibility purpose.
      - Once the evidence is in for its Credibility purpose, s 60 may be applied to have the evidence within the PIS used for its Hearsay purpose (subject to any of the Discretionary Rules being applied).
8B: Admissions
- Part 1 Definitions: “Admission”
  - admission means a previous representation that is:
    - (a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and
    - (b) adverse to the person’s interest in the outcome of the proceeding.
- Overview of Admissions
  - Admissions in both Civil and Criminal matters are an important part of the Law of Evidence because Admissions relate to evidence that is favourable to a party who is not actually giving that evidence.
  - Admissions may be in the form of Hearsay evidence or Opinion evidence – therefore liable to exclusion under Hearsay Rule ( s 59) and / or Opinion Rule ( s 76).
    - Special rules developed to ensure they are dealt with fairly.
    - Rules of admissibility can relate to both Admissions and related representations.
  - Admissions generally considered to be more reliable than other examples of Hearsay (hence broader acceptance).
    - Rationale for this is that people are far less likely to lie about something that is going to adversely affect their position.
  - General exception to Hearsay Rule and Opinion Rule regarding Admissions is found in s 81. (Think of s 81 as another type of exception to the Hearsay Rule).
- s 81 Hearsay and Opinion Rules: exception for Admissions and related representations
- (1) The Hearsay Rule and the Opinion Rule do not apply to evidence of an Admission.
- (2) The Hearsay Rule and the Opinion Rule do not apply to evidence of a previous representation:
  - (a) that was made in relation to an Admission at the time the Admission was made, or shortly before or after that time, and
  - (b) to which it is reasonably necessary to refer in order to understand the Admission.
- Types of Admissions
  - There are two broad categories of Admissions:
    - ‘inculpatory’ admissions and
    - ‘exculpatory’ Admissions.
  - Inculpatory Admissions are ones that express or imply something that establishes guilt. Eg.
    - “I was pissed off with the guy, so I shot him.” (express)
    - “He was just asking for it.” (implied)
    - “I didn’t complete the job because the account is in arrears.” (express)
  - Inculpatory Admissions would include:
    - Confessions
    - Acknowledge a relevant fact that tends to establish guilt / liability
    - Acknowledgement of something that goes towards establishing a material fact in issue which Prosecution relies upon.
    - An Admission in a party’s pleadings
    - Adopting someone else’s representation as your own
  - Exculpatory Admissions more difficult to establish. Exculpatory conduct is conduct that denies something.
    - When you deny guilt, or deny knowledge about something, or deny a fact in issue, that is an exculpatory representation.
    - In itself, this is not “adverse” and therefore not, on its face, an admission. Something more is required to turn it into an admission. This might include:
      - Lying about something, which the Prosecution relies on as proof of consciousness of guilt – ie.
        
        the Prosecution shows that you are lying, and they argue that the reason you lied is because you know you were guilty.
      - eg. saying “I wasn’t at home that night” might be shown, through other evidence to be untrue.
        
        The Prosecution will then argue that you lied because you were at home engaged in some criminal activity.
  - Care needed when trying to equate lying with consciousness of guilt.
    - May be other reasons to lie (panic, mistake, to protect others).
    - Prosecution needs to establish that the lie discloses consciousness of guilt, or deliberate lying, before this kind of exculpatory representation can be used as an admission.
  - In Edwards v R (1993) 178 CLR 193 Deane, Dawson and Gaudron JJ held that when dealing with an issue of consciousness of guilt a jury should be instructed that there may be reasons for the telling of a lie apart from the realisation of guilt and, where that is the explanation for the lie, they cannot regard it as an Admission.
  - Because a “representation” can be express or implied, oral or written, and can be inferred from a person’s conduct, the following examples may be construed as Admission by conduct:
    - Running away when you see the police.
    - Fleeing from the jurisdiction.
    - Changing your story between arrest and trial.
    - Nodding in reply to a question can be an Admission by conduct.
- Exclusionary Rules Relating to Admissions
  - There are certain circumstances which will result in the exclusion of an Admission:
    - Evidence of Admissions that is not first-hand (s 82)
    - Use of Admissions against third parties (s 83)
    - Admissions influenced by violence and other conduct (s 84)
    - Unreliable Admissions of accused persons (s 85)
    - Records of oral questioning of accused persons (s 86)
    - Fairness Discretion (s 90)
- Exclusionary Rules Relating to Admissions
  - Evidence of Admissions that is not first-hand ( s 82)
    - Under s 82, for s 81 to operate as an exception to the Hearsay Rule, evidence of the Admission must be first-hand ie.
      - (a) Evidence must be given by the person who saw, heard or otherwise perceived the Admission being made; or
      - (b) It is a document in which the Admission is made.
  - Use of Admissions against third parties ( s 83)
    - s 83 provides that evidence of an Admission made by one party cannot be used against another party (without the consent of the other party).
    - eg. Admission by D1 cannot be used against D2, unless D2 consents (Note: D2 is not able to rely on only parts of D1’s Admission – all or nothing)
  - Admissions influenced by violence and certain other conduct ( s 84)
    - Under s 84(1), for the Admission to be admissible, the Court must be satisfied that the Admission, or the making of the Admission was not influenced by:
      - (a) Violent, oppressive, inhuman or degrading behaviour towards the person making the Admission or towards another person; or
      - (b) A threat of conduct of that kind.
    - s 84(2) requires that the Defendant raise the issue of such behaviour if he / she is going to have the Admission excluded under s 84(1).
    - The Court must be satisfied that the Admission was not influenced by such conduct, on the balance of probabilities ( s 142).
    - Whilst there is no consistent interpretation of what kind of conduct is anticipated here, many judges only tend to admit Admissions if they are clearly ‘voluntary’.
      - See Tofilau v The Queen [2007] HCA 39 (HCA speaks of the requirement for ‘voluntariness’.)
  - Unreliable admissions of accused persons ( s 85)
    - s 85 deals with possibly unreliable Admissions made to Investigating Officials or persons capable of influencing the Prosecution, by the Defendant.
    - s 85(2) provides that the Court needs to be satisfied that the admission was made in circumstances that were not likely to affect the truth of the Admission. (on Balance of Probability)
    - There are particular procedures for dealing with Admissions to police, and s s 85 and 86, together with parts of the Criminal Procedure Act, govern this. A court will need to consider:
      - the nature and manner of questioning
      - whether any inducements or threats were made
      - any relevant condition or characteristic of the person making the admission (age, education, disability, personality, etc).
    - The Court will look to all the circumstances in which an admission is made before admitting / excluding it.
  - Records of oral questioning of accused persons ( s 86)
    - s 86 only applies to oral Admissions made by Defendant in Criminal proceedings where the Admission was made in response to a question / representation made by an Investigating Official.
    - s 86 requires that an alleged documentary record of the Official’s question and Defendant’s response to those questions must be acknowledged by the Defendant as being a true record of the question and response ( s 86(2) refers).
    - Acknowledgment must be made by signing, initialling / marking the document ( s 86(3) refers).
    - Additional procedures for dealing with admissions to Police, are set out in Criminal Procedure Act – general rule is that unless Admission to Police is tape recorded, it will not be admissible (see s 281 Criminal Procedure Act)
      - Electronically Recoded Interview of a Suspected Person (ERISP)
- s 90 Discretion to Exclude Admissions
- s 90 provides that in a Criminal proceeding, the Court may refuse to admit evidence of an Admission, or refuse to admit the evidence to prove a particular fact, if:
  - (a) the evidence is adduced by the Prosecution, and
  - (b) having regard to the circumstances in which the admission was made, it would be unfair to a Defendant to use the evidence.
- Applied where Court considers that the Police conduct may have brought about an unreliable Admission – reasons may include: unfairness, impropriety, failure to caution, not voluntary, forensic disadvantage (R v Swaffield: Pavic v The Queen (1998) 192 CLR 159 provides a useful guide although they were Common Law cases).
- s 90 Discretion operates as an additional safeguard to the operation of s 85 (Unreliable Admissions by Accused) and the Discretionary Rules found in Part 3.11 EA – particularly s 138).
- Probative value and seriousness of offence not relevant to exercise of s 90 Discretion (R v Em [2003] NSWCCA 374). In Em v The Queen (2007) 232 CLR 67 s 90 seen as different to s 138 EA – s 90 seen as an ‘extra’ safety net.

Week 10: Opinion Evidence

Opinion Evidence
- Opinion is the medium between knowledge and ignorance.
  - Plato
- What is Opinion Evidence ?
  - From a legal perspective, an opinion is an inference that can be drawn from observed and communicable facts or data. (Lithgow City Council v Jackson [2011] HCA 36)
  - An opinion is a conclusion that has been drawn, (usually judgmental or debatable), which has been ‘reasoned’ from some type of factual basis. Opinion should be distinguished from conjecture which has little or no factual basis at all.
  - Opinion evidence is evidence of a witness’ opinion that is tendered to prove a fact that was expressed in the opinion, is actually true.
  - Generally, the greater the inference that has to be drawn, the more likely it is for that evidence to be an opinion rather than a fact (Continuum approach – grey areas in-between)
- Problems with Opinion Evidence
  - Opinion evidence can be problematic for reasons of both fairness and efficiency.
  - Opinions are generally considered to be unhelpful to the trier of fact and tend to be more prejudicial than useful, comprising of merely uninformed speculation.
  - Opinion evidence allows the Witness to draw inferences and conclusions – this is the function of the trier of fact.
  - People can be mistaken in their reasoning process about something that they observed – this can lead them to jump to conclusions based on limited or wrong facts.
    - Poor / inaccurate reasoning impacts on the reliability and accuracy of the evidence.
- s 76 Opinion Rule
  - Opinion Rule works in a similar fashion to the other Exclusionary Rules with EA – provides an overarching exclusion with various associated exceptions.
  - Rationale of Opinion Rule is to prevent the use of opinion evidence, where it is tendered to prove the existence of a fact about which the opinion is expressed.
  - Pursuant to s 76, and subject to the various exceptions to the Opinion Rule, evidence of an opinion is not admissible.
  - s 76 designed to ensure that witnesses give a plain account of what they actually perceived – must not give interpretations, conclusions, beliefs, or opinions about what they perceived.
  - Within the EA, opinion evidence is broadly categorised by the type of witness giving the evidence – this categorisation dictates which of the exceptions to the Opinion Rule may apply.
    - Lay Witness
    - Expert Witness
- Hearsay Evidence of Opinion
  - Sometimes a confusing relationship can exist between Hearsay and Opinion evidence.
  - The way the Act is formulated it is possible for an opinion to be expressed and that opinion be related as Hearsay.
    - eg. “The Specialist told me that the surgery that I require doesn’t have a very good success rate.”
  - Important to note that Hearsay evidence of an opinion which falls within an exception to the Hearsay rule is still governed by s 76.
    - s 76 is not confined to evidence of an opinion given by a witness in court; it also applies to any evidence of an opinion, including out-of-court hearsay representations of an opinion.
- s 78 Lay Opinion Exception
  - Under s 78 lay opinion evidence is admissible as long as the following two conditions are met:
    - (a) That the opinion is based on what the person saw, heard or otherwise perceived about the matter or event; and
    - (b) That evidence of the opinion is necessary to obtain an adequate account or understanding of the person’s perception.
  - Generally, Lay Witnesses can give evidence about: someone’s age, health, emotional state. May also give opinion as to estimates of speed and distance, as well as condition of things eg. old, new, damaged, worn etc. Identification evidence can also fall within the realms of lay opinion.
  - s 78 requires a rational basis for the opinion before it is admissible. i.e. in R v Panetta (1997) 26 MVR 332 held that there was no rational basis for the opinion evidence given in relation to the exact speed of the car.
- Lithgow City Council v Jackson [2011] HCA 36
  - Jackson moderately intoxicated and after an argument with his GF he left his house to take his dogs for a walk at about 3.30am. Went to local park, walked too close to a retaining wall and fell into drain below. Found about 7am and ambulance called. Case relates to question of Council liability and causation – Jackson argued that retaining wall should have been fenced.
  - Opinion / Hearsay question arises from records made at scene by ambulance officer. In section headed “Patient History” appeared the words:
    - “Found by bystanders — parkland? Fall from 1.5 metres onto concrete
    - No other Hx”. (“Hx” means “history“)
  - At trial, the statement was excluded as Hearsay and no causation found. NSWCA overturned decision and held that s 78 exception applied therefore causation could be found. Appealed to HCA.
  - HCA majority overturned the decision of the NSWCA. The majority excluded the statement on several grounds including Hearsay and Opinion. Exclusion of this evidence meant that causation could not be established.
    - Held that the impugned statement is Hearsay because it is a previous representation being tendered to prove the fact that J had fallen from the wall, thereby resulting in his injury.
  - Held that s 69 Business Record Hearsay exception would not apply because neither the bystander or the ambulance officer had ‘personal knowledge’ of the fall.
  - Next question was whether the asserted fact (fall from 1.5m) could be classed as an opinion – held that for it to be viewed as an opinion, there needed to be some personal knowledge held by the Ambo in order to be able to draw an inference (needed to be a factual basis for the opinion). Therefore the s 78 exclusion not applicable.
    - Result - Ambulance record not able to be admitted under either the Hearsay exceptions or the Opinion exceptions.
- s 79 Specialised Knowledge Exception
  - s 79 provides an exception to the Opinion Rule for witnesses who possess some form of specialised knowledge that can assist the trier of fact to understand and contextualise the evidence more appropriately. This is generally referred to as Expert Evidence.
    - As stated by Finkelstein J in Quick v Stoland Pty Ltd (1998) 87 FCR 371:
      - “The function of an expert is to provide the trier of fact, judge or jury, with an inference which the judge or jury due to the technical nature of the facts is unable to formulate.”
  - s 79 Exception: opinions based on specialised knowledge
    - If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.
- s 79 Specialised Knowledge Exception
  - Key elements of s 79(1) are:
    - Must be some form of specialised knowledge held by the Expert Witness.
    - The specialised knowledge must be based on the Expert’s training, study or experience.
    - The opinion must be wholly or substantially based on that specialised knowledge.
  - Proving these elements is mandatory for admissibility of the opinion.
    - Raises question over what is meant by the term ‘specialised knowledge’ – no definition of term in EA.
- Meaning of Specialised Knowledge
  - Approaches used to define the term have ranged from:
    - Knowledge which has gained a general acceptance within the relevant professional community (Frye test).
    - Knowledge which is sufficiently organised / recognised to be accepted as reliable (Bonython test).
    - Knowledge which is reliable by virtue of it being testable, subjected to peer review and generally accepted in scientific community (Daubert indicia).
  - The test usually applied in NSW is the Frye test. However the trend in EA jurisdictions is towards a reliability focused approach through the use of the Daubert indicia reasoning.
- R v Hien Puoc Tang [2006] NSWCrCA 167
  - Tang was convicted of one count of robbery when armed with an offensive weapon. The robbery occurred in a convenience store and was videotaped by a surveillance device. The tape showed 3 offenders but was not of sufficient quality to enable clear identification of the offenders. Two of the offenders were arrested 40 minutes after the offence.
  - The third offender, Tang, came to the attention of the police 8 months after the robbery and was linked to the offence through fingerprints found on some of the stolen goods.
  - Crown’s case turned on facial mapping and body mapping evidence from Dr Sutisno who identified points of resemblance between the surveillance images of the third offender and photographs of Tang.
  - At trial, evidence was adduced on the understanding that the Dr Sutisno was an ‘expert’, even though the field of knowledge (‘facial mapping’) had not been subjected to any of the scientific tests for reliability and validity.
  - NSWCCA allowed the Appeal on the basis that facial mapping / body mapping, was not shown on the evidence in the trial, to constitute ‘specialised knowledge’ of a character which can support an opinion of identity – therefore the evidence did not satisfy the elements set out in s 79 EA.
- Gaining of Specialised Knowledge
  - Important to understand that specialised knowledge is not limited to purely academic knowledge.
  - A person can also become an expert on a particular thing on the basis of their practical experience. Eg:
    - Allstate Life Insurance v ANZ (1996): knowledge of investor behaviour and financial markets can be acquired through employment.
      - In this case a fund manager was allowed to give expert evidence about investment behaviour but a securities lawyer was not.
    - R v Yildiz (1983) 11 A Crim R 115: knowledge of the attitudes of the Turkish community to homosexuality was considered to be specialised knowledge. The evidence was given by a heterosexual Turkish interpreter who said that the Turkish community regards homosexual people with extreme disfavour.
      - The court held that it was not necessary for the interpreter to have actual experience of homosexual people in the Turkish community; it was enough that he knew about Turkish attitudes, through his Turkish birth, nationality, and living his life amongst Turkish people.
  - Ad hoc experience may also satisfy s 79 requirements. A person may become an expert in a one-off instance for some special reason.
    - In R v Leung and Wong (1999) 47 NSWLR 405 an interpreter listened to surveillance tapes many, many times. He listened to them so often, and so closely, that he was able to identify features that to an ordinary listener, would be imperceptible. It was not only that he could understand the languages being spoken on the tapes, he could recognise that some of the voices were of the same people - based on his comparison of their voice modulation, accent, speed of speaking, etc. He was XXed on his methods, and it was held that he could properly testify as an expert in the case.
- Opinion based “wholly or substantially” on Specialised Knowledge
  - Third limb of s 79(1) requires that the opinion expressed is based ‘wholly or substantially’ on the Expert’s specialised knowledge.
  - Requirement confines Expert to their area of specialisation / expertise. Very common for an Expert to stray outside their own area specialty – needs to be monitored by Counsel and Court.
  - The majority in Dasreef Pty Ltd v Hawchar [2011] HCA 21 said that there needs to be sufficient connection between the opinion and relevant specialised knowledge before s 79(1) can be satisfied.
  - Also requires Expert to be able to prove the facts and assumptions upon which opinion is based. (see Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 and also Schedule 7 of UCPR).
- Problems with Expert Evidence
  - Expert evidence can be very powerful evidence because of the so-called ‘white-coat effect’ that Experts can have on juries.
  - Expert evidence can be improperly used as a way of legitimising or bolstering poor police work and / or poor advocacy. This can lead to miscarriages of justice – particular in cases which are largely based on circumstantial evidence. eg. Chamberlain’s case.
  - Lack of objective standard against which to measure the opinion: R v Gilfoyle [2001] 2 Cr App R 57; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
  - Danger of jury deferring to the expert: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
  - Inability of jury to comprehend the expert evidence: R v Lisoff [1999] NSWCCA 364
- s 77 Admissibility of Opinions for a Non-Opinion Purpose
  - s 77 is about the collateral use of Opinion evidence.
  - Unclear whether s 77 operates in the same way as s 60.
    - i.e. where Opinion evidence that would not otherwise fall within the Opinion Rule exceptions, is firstly admitted for its Non-Opinion purpose, it can then be used for its Opinion purpose.
  - The use of s 77 is unclear because there is hardly any useful judicial statement on this section.
  - ***Because of the confusion and lack of legal explanation around this section it will not be included in the exam.
- R v Wood [2012] NSWCCA 21
  - Gordon Wood (Chauffeur of Rene Rivkin) was convicted of throwing his girlfriend (Caroline Byrne) of the Gap on 8 Jun 95.
  - Original trial declared a mistrial because a juror had contacted 2GB with claims of a secret visit to the Gap by the jury.
    - 15 jurors empanelled for 2nd Trial
  - Expert from Sydney Uni (Prof Rod Cross) produced a number of reports for the Prosecution / Police. He was a Plasma Physicist who said he had experience working with biomechanists – he had been published on the subject.
- R v Wood
  - Some confusion as to exactly where the body had been located (Hole A or Hole B).
  - Evidence from Cross indicated that it was impossible for a woman of the victim’s weight (61kg) etc, to get necessary take off speed of 4.5m/s if she had jumped. His testing showed a max of 3.5m/s could be achieved. His testing further showed that a strong man could throw a 61kg woman at 4.8m/s – thrown like a spear.
  - Wood was ultimately convicted on the evidence and sentenced to 17 years.
  - Cross wrote a book about how he helped solve the crime and what a great assistance he had been to the Police.
  - Appealed on several grounds – main ground being that the scientific evidence used to convict Wood was flawed.
  - NSWCCA very scathing about the evidence given at Trial by Prof. Cross. Questions over:
    - Qualifications
    - Testing regime
    - Role in proceedings
  - Also raised issues relating to the difficulties for jurors in understanding and distinguishing between conflicting evidence as well as the validity and reliability of Expert Evidence.
  - Wood was acquitted in Feb 2012.
- R v Morgan [2011] NSWCCA 257
  - June 2008 a a sledgehammer-wielding robber broke into the Willoughby Hotel. A balaclava-clad image was captured on CCTV.
  - 30 Mins later the same robber breaks into PJ Gallagher’s Pub at Drummoyne.
  - Considerable circumstantial evidence existed that linked Morgan to the robberies (DNA, key to red Audi). Eye witness evidence as to height was conflicting.
  - Prosecution led Expert Evidence regarding Body Mapping. Dr Henneberg (Adelaide Uni) professed expertise in anatomical comparison of images.
  - Although the Offender in the images was wearing a balaclava, Dr Henneberg said there was a high level of anatomical similarity between the Offender and the Suspect / Accused.
  - No anthropometric measurement or statistical analysis was undertaken by Dr H. Other Experts gave evidence that Dr H’s evidence was ‘lacking in precise methodology or scientific protocol.’
  - NSWCCA held that the evidence given by Dr H should not have been admitted. The Court expressed concern that ‘there was no scientific evaluation of its validity, reliability and error rates’. Essentially, Dr H expressed an opinion but there was no factual explanation / basis to support the opinion.
  - It should be noted that this is the same chap who ‘identified’ the nude photographs as being Pauline Hanson !!
- Honeysett v The Queen [2014] HCA 29
  - Convicted of armed robbery. CCTV showed 3 disguised robbers carrying weapons. P called expert anatomist (Prof Henneberg) who gave evidence of similarities of anatomical characteristics between appellant and a robber in the TV footage. Evidence based on viewing the footage and viewing the appellant in custody.
  - Previous cases had criticised “body mapping” as an area of expertise. (R v Tang, Morgan v The Queen – which had involved Drs Sutisno and Henneburg) Criticism had been made as to the lack of research into the method of assessing this.
  - Mindful of this, the Crown did not rely on part of the expert opinion which said there was ‘a high degree of anatomical similarity’. Confined Prof H’s evidence to:
    - Characteristics of defendant.
    - Characteristics of taped person.
    - Lack of any dissimilarities between the two.
  - NSWCCA dismissed Honeysett’s appeal on the basis that the expert evidence given by Prof. H was properly admitted, based on his study, training and experience as an anatomist. In the alternative, it said that he was an ‘ad hoc’ expert due to repeated viewings of the footage. (R v Tang [2006] NSWCCA 167)
- Honeysett v The Queen [2014] HCA 29
  - On appeal, the Crown did not argue that body mapping was an area of expertise, and stuck to ‘anatomy’ as Prof. H’s area of expertise. It said that he was only giving ‘an account of the characteristics of the body of the person depicted in each set of images.’ – Circumstantial evidence.
  - The HCA 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.
    - His knowledge as an anatomist, that some people have round heads and some have long heads, was not the basis of the conclusion that the person in each video had a round head. That was based on his subjective impression of looking at the images.
    - The jury could have ascertained these facts themselves (remember Smith v The Queen)
More Expert Evidence Cases
- Velevski v The Queen [2002] HCA 4
  - Velevski’s wife, 6yr old daughter and twin 3 yr old daughters all found in their Wollongong home with their throats cut.
  - Question raised Defence whether murder / suicide by wife or all murdered by Velevski.
  - Expert evidence called to determine whether suicide scenario was possible.
  - Convicted largely on circumstantial evidence which was supported by expert evidence from pathologists.
  - Appeal to NSWCCA rejected.
  - Appealed to HCA on grounds of miscarriage of justice.
  - HCA looked at the issue of what constitutes ‘specialised knowledge’ and whether expert witnesses can also give evidence of everyday issues. Held that:
    - “Training, study and experience, necessarily include, as they must in all areas of expertise, observations and knowledge about everyday affairs and events, and departures from them. It will frequently be impossible to divorce entirely these observations …it is the added ingredient of specialised to general that equips the expert.”
  - HCA also looked at question of juries dealing with conflicting expert evidence.
- R v Keir [2002] NSWCCA 30
  - Seven small bones found in Accused’s backyard. Crown argued that bones were those of Accused’s missing wife.
  - Crown called expert evidence from Forensic Biologist, Robert Goetz (US Dept of Defence), in relation to matching of DNA profile from bones against samples taken from wife’s parents.
  - The expert witness gave evidence that it was 660,000 times more likely to obtain the DNA profile found in the bones if it came from a child of the missing woman’s parents, rather than from a child of a random mating in the Australian population.
  - Significance of statistical evidence was improperly stated by the trial judge.
  - In his directions, the trial judge (restating the prosecution’s submissions) referred to the DNA evidence as providing a ‘660,000 to one’ chance that the bones were those of the missing woman, and therefore a ‘660,000 to one’ chance that alleged visual identifications of the woman after her disappearance were not correct.
  - Conviction quashed. New trial ordered.
- Universal Music Australia Pty Ltd v Sharman Licence Holdings Limited
  - In a recent Federal Court decision of Universal Music Australia Pty Ltd v Sharman Licence Holdings Limited, expert witnesses have been urged to maintain their independence and avoid altering their expert reports to suit the needs of the litigants.
  - The trial judge discredited the bulk of the expert evidence given by a computer scientist on the basis that the expert was seriously prepared to compromise his independence and intellectual integrity
  - In cross examination, the expert admitted that his expert report was based on an initial ‘skeleton’ report provided to him by the defendant’s instructing solicitors, and that he agreed to their changes to the technical aspects of his report.
  - Court said that Expert witnesses need to be aware that:
    - their overriding duty is to assist the Court and to be impartial on matters relevant to the experts’ area of expertise;
    - they are not advocates for their instructing solicitors or their clients;
    - they should follow the relevant Court guidelines for expert witnesses;
    - they should not allow their instructing solicitors to influence the content of their report; and
    - care should be taken in communications between themselves as an expert witness, a litigant and its lawyers. Generally, such communication is protected from disclosure until the expert report is served on the other party.
- Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305
  - Ms Sprowles was employed by Makita at its Gladesville office. She slipped on the stairwell and sued her employer for negligence.
  - Expert evidence (Prof Morton) to show that the stairs were too slippery. Various tests done on coefficient of friction between step and Sprowles’ shoe.
  - Other evidence tendered by Makita showing that there had never been any other accident on the stairs.
  - In Makita (Australia) Pty Ltd v Sprowles, the importance of explaining the various methodologies used by expert witnesses and the reasons why they were used were discussed.
  - The Court of Appeal criticised the failure by plaintiff’s expert to explain how he had reached his conclusions, particularly the facts and assumptions underlying the conclusions.
  - Resulted in the Court of Appeal rejecting the expert’s opinion and overturning a judgment in favour of the plaintiff for more than $1 million.
  - “The only conclusion, in my opinion, is that Professor Morton’s opinion about the slipperiness of the steps in the stairway was so clearly wrong that even his impressive qualifications could not rescue it”. Priestley JA
- Kyluk Pty Ltd v Chief Executive, Office of Environment & Heritage [2013] NSWCCA 114
  - An Appeal by Kyluk to NSWCCA in relation to an earlier decision of the NSWLEC.
  - In the NSWLEC Kyluk was convicted of a breach of s 118A(2) National Parks & Wildlife Act (1974). Kyluk had pleaded guilty to having picked plants that were part of an Endangered Ecological Community (EEC) – Shale / Sandstone Transition Forest (SSTF). They had cleared the land to run cattle.
  - Expert Evidence from Mr Tulau (Soil Scientist) was considered on voir dire and admitted by the Court.
    - Chief Executive, Office of Environment & Heritage v Kyluk Pty Ltd [2012] NSWLEC 22 (No1)
  - On Appeal OE&H argued that the Expert Evidence of Mr Tulau should not have been admitted because he had failed to follow Sched 7 – by not properly disclosing all the details (lab results) on which he had based his opinion.
  - NSWCCA held that although failure to observe Sched 7 is not fatal, it is relevant when considering whether to apply the Exclusionary Rules under either s 135 EA or s 137 EA.
  - Because Kyluk were unable to properly explore issues regarding testing procedures and chain of possession NSWCCA held that the probative value of evidence was outweighed by danger of it being unfairly prejudicial to Kyluk. Matter sent back to LEC for further Hearing.
- R v Parenzee [2006] SASC 127
  - Andre Parenzee (HIV +ve) was tried and convicted on 3 counts of endangering human life by exposing others to the risk of infection through unprotected,despite being aware of the transmissibility of HIV.
  - Appealed conviction, claiming that the existence and virulence of HIV have not been proven. He was supported by testimony from Valendar Turner and Eleni Papadopulos-Eleopulos.
  - A number of prominent researchers, testified to the scientific consensus that HIV exists and is a causal link to AIDS.
  - Ultimately, the judge rejected the qualifications and testimony of the AIDS dissident witnesses, finding that there is “no longer any genuine scientific dispute” that HIV exists and causes AIDS. Parenzee’s appeal was denied.
  - His lawyers appealed the case to the Supreme Court of SA, claiming a miscarriage of justice, on the basis that there was no proof that HIV existed, could be sexually transmitted, caused AIDS, or could be tested for.
  - At the hearing, the Parenzee’s lawyers tried to present, Papadopulos-Eleopulos and Turner, as expert witnesses in support of Parenzee’s claims.
  - Justice Sulan found that Papadopulos-Eleopulos lacked training and expertise in the field of biology, and had misrepresented the positions of others in her testimony.
  - His finding was that:
    - Ms Papadopulos-Eleopulos has no formal qualifications in medicine, biology, virology, immunology, epidemiology or any other medical disciplines. She has never treated or been directly involved in clinical trials of any kind relating to any disease. Her duties at the Royal Perth Hospital are to test people for sensitivity to ultraviolet radiation.
  - At the hearing, the Parenzee’s lawyers tried to present, Papadopulos-Eleopulos and Turner, as expert witnesses in support of Parenzee’s claims.
  - Justice Sulan also found that:
    - Ms Papadopulos-Eleopulos’ qualifications do not provide her with the academic study required to give opinions on medical and scientific matters unrelated to nuclear physics.” He further noted that she had no practical experience or formal qualifications in virology, epidemiology, electron microscopy, biology or immunology.
- R v Wood [2012] NSWCCA 21
  - Gordon Wood (Chauffeur of Rene Rivkin) was convicted of throwing his girlfriend (Caroline Byrne) of the Gap on 8 Jun 95.
  - Original trial declared a mistrial because a juror had contacted 2GB with claims of a secret visit to the Gap by the jury.
    - 15 jurors empanelled for 2nd Trial
  - Expert from Sydney Uni (Prof Rod Cross) produced a number of reports for the Prosecution / Police. He was a Plasma Physicist who said he had experience working with biomechanists – he had been published on the subject.
  - Some confusion as to exactly where the body had been located (Hole A or Hole B).
  - Evidence from Cross indicated that it was impossible for a woman of the victim’s weight (61kg) etc, to get necessary take off speed of 4.5m/s. His testing showed a max of 3.5m/s could be achieved. His testing further showed that a strong man could throw a 61kg woman at 4.8m/s – thrown like a spear.
  - Wood was ultimately convicted on the evidence and sentenced to 17 years.
  - Cross wrote a book about how he helped solve the crime and what a great assistance he had been to the Police.
  - Appealed on several grounds – main ground being that the scientific evidence used to convict Wood was flawed.
  - NSWCCA very scathing about the involvement of Prof Cross in the investigation and the evidence given at Trial. Questions over:
    - Qualifications
    - Testing regime
    - Role in proceedings
  - Also raised issues relating the difficulties for jurors in understanding and distinguishing between conflicting as well as the validity and reliability of Expert Evidence.
  - Wood was Acquitted in Feb 12.
- R v Morgan [2011] NSWCCA 257
  - June 2008 a a sledgehammer-wielding robber broke into the Willoughby Hotel. A balaclava-clad image was captured on CCTV.
  - 30 Mins later the same robber breaks into PJ Gallagher’s Pub at Drummoyne.
  - Considerable circumstantial evidence existed that linked Morgan to the robberies (DNA, key to red Audi). Eye witness evidence as to height was conflicting.
  - Prosecution led Expert Evidence regarding Body Mapping. Dr Henneberg (Adelaide Uni) professed expertise in anatomical comparison of images.
  - Although the Offender in the images was wearing a balaclava, Dr Henneberg said there was a high level of anatomical similarity between the Offender and the Suspect / Accused.
  - No anthropometric measurement or statistical analysis was undertaken by Dr H. Other Experts gave evidence that Dr H’s evidence was ‘lacking in precise methodology or scientific protocol.’
  - NSWCCA held that the evidence given by Dr H should not have been admitted. The Court expressed concern that ‘there was no scientific evaluation of its validity, reliability and error rates. Essentially, Dr H expressed an opinion but there was no factual explanation to support the opinion.
  - It should be noted that this is the same chap who ‘identified’ the nude photographs as being Pauline Hanson !!
- Frye v United States 293F1013 (1923)
  - Frye was convicted of murder because the results of his systolic blood pressure deception test (polygraph) was held to be inadmissible evidence.
  - The polygraph test was held to be inadmissible because expert testimony on such an issue was not yet “generally accepted in that particular field”
  - Psychological and physiological authorities had not by that stage accepted the new technique.
  - Who determines when expert testimony should be admissible?
    - “not the Court but on the opinion of other experts”
  - PROBLEMS WITH Frye-
    - Undermines the role of the judiciary
    - Gives the judiciary an excuse to allow expert evidence
  - In the US, the Frye test has been used to determine the admissibility of expert evidence derived from many different types of scientific techniques
    - Voiceprints
    - Neutron activation analysis
    - Gunshot residue test
    - Bite mark comparisons
  - Points FOR
    - Acts to control the jury being exposed to ‘junk science’ because the test requires the expert themselves, rather than the Court, to determine the reliability of the evidence.
    - The test requires general acceptance from the particular scientific community, this implies that such a community exists and experts will be available to examine the evidence.
  - Points AGAINST
    - The burden of general acceptance imposes a barrier to novel scientific ideas being offered as evidence.
    - The test poses a danger in that the courts will be unable to keep abreast of advances in science whilst they wait for new scientific techniques to gain general acceptance.
- Daubert et al, Petitioners v Merrell Dow Pharmaceuticals 509 US 579 (1993)
  - Jason Daubert & Eric Schuller both born with serious birth defects due to their mothers’ having taken a drug called Bendectin. Number of children and parents took action against Merrell Dow.
  - Merrell Dow argued no published scientific studies existed to show link between Bendectin and birth defects. (trying to apply Frye Test)
  - Daubert’s evidence was based on methodologies that had not yet gained acceptance within the general scientific community.
  - On Appeal matter was reviewed by Supreme Court.
  - Sup Court developed a set of Guideline (Indicia) for assessing whether evidence is truly scientific.
    - Judge is the gatekeeper: the question of whether evidence stems from scientific knowledge rests with the Judge (cf Frye).
    - Relevance & Reliability: Judge is to ensure that Expert’s evidnece is ‘relevant to the task at hand’ and is based ‘on a reliable foundation’.
    - Scientific Knowledge: Does the Expert’s evidence flow from the application of scientific method? If so, it qualifies as ‘scientific knowledge’.
    - Other relevant factors:
      - Is theory / technique falsifiable (testable)?
      - Subjected to peer review.
      - Known or potential error rates.
      - Recognised standards/controls over operation
      - The degree to which theory has gained general acceptance with relevant scientific community.
    - The finding in Daubert meant:
      - The judge must make a preliminary assessment of whether the testimony’s underlying reasoning or methodology is scientifically valid and can properly be applied to the facts at issue.
      - A change in the test to decide whether there is a recognised area of expertise. A change from a ‘general acceptance’ test to ‘scientific validity’ test.
      - Better way to address ‘novel scientific evidence’.
    - In Australia we rely on section 79 Evidence Act 1975
      - Whilst they have no direct application in Australia the concepts of Frye and Daubert have been persuasive.

Week 11: Tendency and Coincidence

Tendency and Coincidence
- Inferential Reasoning
  - Inferential reasoning is where someone is asked to draw an inference based on certain facts or events. eg. Opinion evidence is where the Witness (Lay or Expert) draws an inference based on their knowledge or observations.
  - Other types of evidence can rely on the idea of drawing an inference based on certain facts or knowledge eg. where the Jury is asked to draw an inference from the facts that they have heard.
  - This type of reasoning also occurs in relation to what is known as:
    - Tendency Evidence
    - Coincidence Evidence
- General Principles of Tendency & Coincidence
  - Tendency def
    - Tendency evidence may be relevant to show that a person has, or had a tendency, to act or think in a particular way in the past, and because of that tendency, it can be inferred they have acted or thought in that same way in the matter that is in issue. Common Law described this type of evidence as Propensity Evidence.
    - Tendency reasoning uses evidence about a particular person’s previous behaviour to infer the probability that a certain pattern of behaviour will follow.
    - Person’s previous behaviour → Behaviour in question
    - “Tendency evidence is no more than a building block or stepping stone to provide the foundation for an inference that, on an occasion relevant to the proceedings, a person behaved in a particular way or had a particular state of mind.” Per Simpson J, DAO [2011] NSWCCA 63
    - Using Tendency reasoning, the fact that a person said or did something on previous occasions (pre-dating the event in issue) may be significantly relevant to proving that the person did or said something at the time in question.
  - Is There a Tendency ???
    - 1. When assessing whether a tendency exists, need to consider:
      - Whether the evidence of the prior actions / activities supports the existence of a tendency.
    - 1. Whether that tendency makes it more likely that the facts make out (satisfy / support) the charged offence.
      - Hughes v The Queen [2017] HCA 20
  - Coincidence def
    - Coincidence evidence puts two or more similar incidents beside one another, for the purpose of showing that it is unlikely to be a coincidence that these events are related – ie. trying to show that it is more than mere coincidence that links the events.
    - Coincidence evidence is evidence which uses the improbability of two or more events occurring coincidentally to prove that:
      - A person performed a particular act; or
      - A person had a particular state of mind.
  - Coincidence reasoning uses evidence about a particular pattern of behaviour / series of events, to infer the probability that a particular person is behind the event currently before the Court.
  - Drawing an inference to prove a fact in issue can be dangerous, so both CL and EA have rules preventing the inappropriate use of evidence for a tendency or a coincidence reasoning process.
  - In much the same way as the Hearsay Rule and the Opinion Rule, the exclusionary rules developed to deal with this tendency and coincidence reasoning are purpose based:
    - What is the use that will be made of this evidence if it is admitted ?
  - Rules dealing with the exclusion of this type of evidence are set out in:
    - s 97 Tendency Rule
    - s 98 Coincidence Rule
- s 97 Tendency Rule
  - s 97 prevents the use of evidence that shows that an individual has a tendency to act, or think, in a certain way unless:
    - reasonable notice of the intention to lead such evidence is given (s 97(1)(a) refers); and
    - the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value (s 97(1)(b) refers).
  - Significant Probative Value
    - “Probative value” in EA Dictionary:
      - “probative value” of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.
- Significant Probative Value
  - No guidance in EA regarding “significant’ but has been held to be:
    - ‘not substantial’ (ALRC 26)
    - something more than mere relevance but something less than a ‘substantial’ degree of relevance (R v Lockyer (1996) A Crim R 457)
    - evidence that is ‘important’ or is ‘of consequence’. (R v Lock (1997) 91 A Crim R 356 ).
    - “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. ….. the evidence must be influential in the context of fact-finding.” IMM v The Queen [2016] HCA 14, [46].
- s 97 Tendency Rule
  - (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless:
    - (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence, and
    - (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative valuehave significant probative value.
  - **** Notice requirement may be dispensed with under s 100 EA
- Tendency Purpose
  - The evidence may have multiple ways it can be used - including a tendency use / purpose. If so, then s 97 must be complied with if you want to use its tendency purpose. (see ES v The Queen (No1) [2010] NSWCCA 197)
  - If the evidence is not adduced to prove the existence of some tendency to act, or think, in a particular way it is not caught by s 97.
    - However, if the s 97 requirements are not satisfied in relation to this multipurpose evidence, the Court must warn Jury not to use the evidence in a tendency way.
  - R v OGD (No 2) (2000) 50 NSWLR 433
    - OGD on trial for sexually assaulting nephew over a period of 5 yrs. Another nephew was called to testify that when he was 10, OGD had said to him “that it was all right to do ‘these things’ and that he used to do those things with the complainant”.
    - Tendered as evidence of OGD’s admission - previous representation that was adverse to his interests inculpating him in the criminal conduct.
    - Because OGD testified about his own good character, he exposed himself to attack on his character. As part of cross examination, P asked OGD questions about sexual misconduct towards two other boys, (both testified).
    - On appeal OGD argued that the evidence of the nephew who testified about the admission and the evidence of the two boys who testified about their own prior experiences was tendency evidence and as such was inadmissible.
  - Held that none of the evidence had been tendered for a tendency purpose.
    - The evidence of the Nephew had been tendered for an admission purpose and the evidence of the 2 boys had been tendered to rebut the evidence of good character.
  - Also held that the trial judge had clearly directed the jury that this evidence could not be used to prove that OGD had a tendency to commit sexual assaults nor that, because of that tendency, he was guilty of the sexual assault of the complainant.
- Evidence for Other Purposes
  - Under s 95 evidence admitted for another purpose cannot be used for a tendency / coincidence purpose unless it also satisfies the Tendency / Coincidence Rules.
    - This can be thought of as being the direct opposite to the way s 60 operates.
  - Generally, where “evidence for another purpose” is admitted for its non-tendency / non-coincidence purpose , it will be necessary for the Court to give a warning against the use of tendency reasoning where there is a real possibility that the jury might use it in that way: Toalepai v R [2009] NSWCCA 270 at [47]; R v Jiang [2010] NSWCCA 277 at [44].
- s 95 - Use of evidence for other purposes
  - (1) Evidence that under this Part is not admissible to prove a particular matter must not be used to prove that matter even if it is relevant for another purpose.
  - (2) Evidence that under this Part cannot be used against a party to prove a particular matter must not be used against the party to prove that matter even if it is relevant for another purpose.
- s 98 Coincidence Rule
  - s 98 excludes evidence which is adduced to show that the improbability of the similarity of 2 or more events occurring is more than coincidental. Unless the following requirements are met:
    - s 98(1)(a) notice requirement; and
    - the court being satisfied as to the significant probative value of the evidence (s 98(1)(b) refers).
  - Purposes that may be caught by s 98 include:
    - Reasoning that it is ‘improbable’ that the events occurred coincidently.
    - Reliance on similarity of a previous event to the charged event in question.
  - (1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless:
    - (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence, and
    - (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
    - (1A) To avoid doubt, 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. [Subsection deleted]
    - **** Notice requirement may be dispensed with under s 100 EA
  - lf you:
    - rely on contended similarities from 2 or more events;
    - to prove a person did an act, or had a state of mind; and
    - have reasoned that it is improbable that the events occurred coincidentally,
  - then you have engaged in coincidence reasoning, and you need to satisfy the notice and sig. probative value requirements of s 98.
  - The 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. A lack of similarity would likely result in the material being inadmissible because it would mean that the evidence did not have sufficient probative value.
  - A very useful summary of the approach to s 98 evidence is provided Simpson J in R v Gale; R v Duckworth [2012] NSWCCA 174.
  - As identified by Simpson J, the process of coincidence reasoning from which an inference would be drawn is:
    - two or more events occurred; and
    - there were similarities in those events; or there were similarities in the circumstances in which those events occurred; or there were similarities in both the events and the circumstances in which they occurred; and
    - having regard to those similarities, it is improbable that the two events occurred coincidentally.
    - therefore can infer the person in question did a particular act or had a particular state of mind.
- Coincidence Reasoning
  - Example of coincidence reasoning:
    - A number of persons have been poisoned, and the victims have all been associated with the D. Evidence of other poisonings may support the inference that D was responsible because it would be contrary to normal experience that a series of poisonings, caused by accident or suicide, would occur by coincidence in D’s circle of associates.
  - R v Smith (1915) 1 Cr App R 229 (“the brides in the bath case”)
    - Smith was accused of murdering his wife, Bessie, who was found dead at home, in her bath.
    - Evidence of the death of two subsequent wives in similar circumstances was held to be admissible as it was improbable that three different women would have accidentally drowned in the bath given that their deaths occurred not long after entering marriage and financial arrangements under which the accused would stand to benefit if they died.
    - Smith’s appeal was unsuccessful. He was convicted and hanged on 13 August 1916.
    - Lord Maugham concluded:
      - “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.”
- s 101 Further Requirements on Prosecution
  - s 101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution
    - (1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.
    - (2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence outweighs the danger of unfair prejudice to the defendant.
    - (3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant.
    - (4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant.
  - s 101 (2) – Probative Value v Prejudicial Effect
    - For prejudicial effect to be established it must be shown that there is a danger that the tribunal of fact will use the evidence upon a basis logically unconnected with the issues in the case: R v Lockyer (1996) 89 A Crim R 457 at 460.
    - The possibility of prejudicial effect with which s 101(2) is concerned is the possibility that the jury will act on the evidence otherwise than by way of its rational effect on the probability of a fact in issue, - eg. by giving effect to “some irrational, emotional or illogical response” or “giving the evidence more weight than it truly deserves”: R v Suteski [2002] NSWCCA 509.
    - If the evidence passes the s 101 test, it will be considered a fortiori – therefore not be excluded under s 137.
- Probative Value v Prejudicial Effect
  - In relation to Tendency and Coincidence evidence, several cases have tried to address the question of balancing probative value against prejudicial effect.
  - The CL rule in assessing whether the probative value of the evidence is outweighed by it prejudicial effect was a strict probative test which said the evidence must be so probative that there is ‘no rational view consistent with innocence’ ie there can be no other reasonable explanation available. (Pfennig v R (1995) 182 CLR 461) (DEAD CASE)
  - Following decisions in post EA authorities of R v Joiner [2002] NSWCCA 354 and R v Ellis [2003] NSWCCA 319, the strict requirement under Pfennig no longer applies
    - EA simply requires a balancing exercise to be undertaken based on the facts of each case. – Some argument that the higher Pfennig test could still have application in certain cases (R v Ellis - Spigelman CJ [at 96]) .
  - As held in IMM v The Queen [2016] HCA 14, when assessing the probative value of the evidence, the evidence is to be taken at its height.
  - As held in Hughes v The Queen [2017] HCA 20, ultimately, the probative value will depend on the factual issue the tendency evidence is being used to prove.
- Some Recent Cases
  - There have been a string of recent cases which have tried to deal with issues arising out of the use of Tendency / Coincidence evidence. Most notably:
    - IMM v The Queen [2016] HCA 14 26.
    - Hughes v The Queen [2017] HCA 20
    - The Queen v Dennis Bauer (a pseudonym) [2018] HCA 40
  - The main issues in these cases related to how the Complainant’s evidence of the Accused’s previous acts (especially uncharged acts against the Complainant) can be used for a tendency purpose and whether there needs to be a ‘special feature’ that links the various actions.
    - Held in Bauer that if there is a sufficient link in time, nature and gravity of offences, one charge can support the other charges (cf IMM)
  - Majority held in Hughes that nothing in s 97(1)(b) indicates that there needs to be a degree of similarity, ‘underlying unity’ or ‘pattern of conduct’ in the ‘operative features’ of the acts that prove the tendency – SPV may still exist without such similarity.
- Recent Amendments
  - The Evidence Amendment (Tendency and Coincidence) Act 2020 (NSW) was introduced in response to recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse.
  - Designed to facilitate greater admissibility of tendency & coincidence evidence, particularly in criminal proceedings relating to child sexual offences.
  - Amendments apply to hearings that begin after commencement of amending Act (1 Jul 20).
  - Main changes relate to the use of Tendency and Coincidence evidence in child sexual offence matters. Amendments also provides clarity / direction in relation to presumptions and thresholds regarding admissibility.
  - Amendments to note:
    - s 94
    - s 97A
    - s 98(1A)
    - s 101(2)
- s 97A - Tendency evidence in proceedings involving child sexual offences
  - The effect of s 97A is essentially to introduce a rebuttable presumption that Prosecution tendency evidence showing that D has a tendency to have a sexual interest in children and/or a tendency to act upon such an interest will be presumed to have met the ‘significant probative value’ requirement under ss 97(1)(b) and 101(2)
    - – unless the court is satisfied that there are ‘sufficient grounds’ to determine that it does not have significant probative value (s 97A(4)).
- s 94 Amendments
  - Overview
    - Under s 94(4) amendment the old CL principles of propensity & similar fact evidence should not be used to assess Tendency and Coincidence matters under the EA.
    - Under s 94(5) the Court is no longer to have regard to ‘possibility’ of collusion / concoction / contamination of Coincidence evidence. Prior to the amendment, the risk of concoction or contamination of Tendency or Coincidence evidence was relevant when considering the probative value of the material.
      - Extends line of thinking held in HCA decision of The Queen v Dennis Bauer (a pseudonym) [2018] HCA 40
      - Raises question of effect of ‘probable’ collusion / concoction / contamination on probative value.
- Steps to Assessing s 98 Admissibility - Simpson J in R v Gale; R v Duckworth [2012] NSWCCA 174.
  - 1. Identify the particular act or state mind of the person sought to be proved by the evidence.
  - 1. Identify the 2 or more events the occurrence of which is used to prove the person did a particular act or had a particular state of mind.
  - 1. Identify the similarities in the events or circumstances for the purpose of ascertaining the improbability of the coincidence.
  - 1. Determine whether reasonable notice has been given.
  - 1. Evaluative whether the evidence has significant probative value (SPV).
    - something more than mere relevance but something less than a ‘substantial’ degree of relevance (R v Lockyer (1996) A Crim R 457)
  - 1. If there is SPV determine whether the probative value outweighs any prejudicial effect (s 101 requirement for Prosecution evidence).

Week 12: Discretionary Rules - Warnings & Directions

Discretionary Rules Warnings & Directions
- Discretionary / Mandatory Rules
  - Although evidence may satisfy the rules with respect to Relevance and not fall foul of one of the Exclusionary Rules, it may still be rejected on the basis that its probative value is in some way outweighed by its prejudicial effect.
  - Safeguards put in place to allow the Court to exercise discretion as to whether to exclude the evidence or limit its weight / use in some way. (Pt 3.11 EA)
  - Important to note that discretionary exclusion of evidence is “discretionary”. Although EA provides some guidance to Trial Judge about how to weigh up various factors, ultimately it is an exercise of the Trial Judge’s discretion.
    - This means that it is very difficult to interfere with discretionary decisions on appeal because it is difficult to demonstrate that the exercise of discretion contains an error.
  - Section 135
    - Court may ‘exclude’ the evidence because its probative value is substantially outweighed by the danger that the evidence might:
      - be unfairly prejudicial to a party;
      - be misleading or confusing; or
      - cause or result in an undue waste of time
    - Operates as a general discretion to exclude evidence in both Criminal and Civil matters.
  - Section 136
    - Court may ‘limit’ the way in which evidence is used if there is a danger that a particular use might be either unfairly prejudicial or misleading / confusing. (Criminal and Civil)
  - Section 137
    - Court must ‘refuse’ to admit the evidence adduced by Prosecution if its probative value is outweighed by the danger of unfair prejudice to the Accused.
    - Set in mandatory terms – ie. must refuse. The Court has no discretion.
    - Operates to exclude evidence in Criminal matters only.
  - Section 138
    - Evidence that has been improperly or illegally obtained is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting it. (Civil and Criminal)
- s 135 Discretionary Rule
  - Under s 135 the Court may exercise its general discretionary power to exclude evidence if it is:
    - a. unfairly prejudicial to a party
    - b. misleading or confusing, or
    - c. a waste of time.
    - *** Provided that the probative value of the evidence is substantially outweighed by one of these grounds.
    - There is a heavy onus on the party seeking to have the evidence excluded to show that probative value is substantially outweighed by one of these grounds - the balancing act under s 135 is weighted in favour of admission of the evidence. (cf s 137)
  - Unfair prejudice (s 135(a))
    - Important to recognise that unfair prejudice needs to be unfair. (A lot of evidence adduced at a trial will prejudice a party – but the question is whether it is unfairly prejudice).
    - Unfair prejudice is where there is a danger that the fact-finder may use the evidence to make a decision on an improper, perhaps emotional basis - on a basis logically unconnected that appeals to the fact-finder’s sympathies or triggers other human action reactions.
    - In Papakosmas McHugh J talked about unfair prejudice in terms like “improper”, “emotional”, “logically unconnected with the issues in the case”, arousing a “sense of horror”, or provoking an “instinct to punish”. eg. Exclusion of evidence that shows a party had been involved in unsavoury / immoral activities. (Can also be applied in relation to procedural issues - ie where a party was unable to properly cross examine a witness
      - Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage NSWSCCA 114)
  - Misleading, confusing (s 135(b))
    - Often it is the case that evidence may be misleading or confusing to a jury and it is impractical / impossible for a TJ to give directions that would prevent that confusion. If directions cannot clarify to the jury how to avoid being misled or confused, it is more appropriate to exercise the discretion to exclude the evidence altogether. eg. Widely used in relation to expert evidence - particularly statistical DNA evidence or where the ambiguity of the evidence may invite speculation.
  - Undue waste of time (s 135(c))
    - Often evidence may have some probative value but if that evidence has been substantially presented to the jury by other witnesses, or in other ways, it may unduly waste the court’s time to hear further evidence on that subject.
    - Also widely applied in relation to voluminous, financial reports and statistical data. eg. accounting records or background data.
- s 137 Mandatory Rule
  - Under s 137, the Court “must” exclude the evidence if the probative value is “outweighed” by an unfair prejudice.
    - Only applies to evidence adduced by Prosecution where there is an unfair prejudice against the Defendant.
  - s 137 operates in similar fashion to s 135(a) in that the Court must balance the probative value (PV) of the evidence against any unfair prejudicial effect (PE).
  - Major difference between s 135 and s 137 is that the onus on the party seeking exclusion is much heavier under s 135. Rationale is that Courts need to be careful when considering evidence that may impact on the Defendant in criminal proceedings.
  - s 137 test is not weighted either in favour exclusion or against it.
    - ‘the trial judge should balance probative value and the danger of prejudice without any preconceptions’. (ALRC 26)
  - Example of where s 137 may operate is the exclusion of gruesome crime scene photographs (particularly when D has denied involvement).
  - The NSWCCA handed down two important judgments that deal with s 137, and the “balancing exercise” that occurs between probative value and unfair prejudice.
    - R v Linard Shamouil [2006] NSWCCA 112
    - R v Keenan Mundine [2008] NSWCCA 55
  - These cases are authority for the propositions that:
    - ‘reliability’ of evidence will only rarely play a part in the assessment of its probative value (reliability being a matter for the jury), and
    - prejudicial effect only deals with any unfair prejudice that cannot be addressed in some other way (eg. judicial warning / order / direction).
  - *** Reasoning approved in R v XY (2013) 84 NSWLR 363 (5 member NSWCCA)
    - In light of HCA decision in IMM v The Queen, the issue of whether the reliability of the evidence plays a part in the assessment of its PV, has now been resolved. Majority held that PV is detached from questions of the reliability and credibility of the particular witness and it is assumed that the evidence is accepted at the time the assessment of its PV is made.
- IMM v The Queen [2016] HCA 14
  - Defendant was charged with indecently dealing with a child and also having sexual intercourse with a child under 16 (his step-grand-daughter from when she was four until she was 12 years old). Complainant’s evidence was the only direct evidence of the offences.
    - Majority (French CJ, Kieffel, Bell and Keane JJ) held that both s 97 and 137 require that, “the evidence be taken at its highest.” Adopting the NSW approach in Shamouil .
    - Majority also held that taking the evidence at its highest, does not prevent the Court from looking for any weaknesses in the evidence – the circumstances surrounding the evidence may indicate that its highest level is not very high at all.
- Probative Value v Prejudicial Effect
  - To exclude: PV must be substantially outweighed by PE
  - To exclude: PV need only be outweighed by PE
- s 138 Discretionary Rule
  - s 138 provides a discretion to exclude improperly or illegally obtained evidence. The onus is on the party seeking to tender the evidence to show that it was properly obtained.
  - Under s 138 the ‘desirability of the evidence’ must outweigh its ‘undesirability’ (s 138(1) refers).
  - Question for the Judge is whether the balance of public interest favours admission – should consider all the factors on both sides of the equation (Bunning v Cross (1978) 141 CLR 54)
  - In relation to an improperly or illegally obtained admissions, the Court will examine whether:
    - the actions of the questioner would likely have substantially impaired the ability of person being questioned to respond rationally (s 138(2)(a) refers) or
    - the questioner made a false statement that was likely to cause the person being questioned to make an admission (s 138(2)(b) refers)
  - Illegally obtained evidence may be admitted but only after the Court has conducted a balancing exercise under s 138(3).
  - In accordance with s 138(3), the minimum factors to be taken into account by the Court when considering whether to exercise the s 138 discretion are:
    - probative value of the evidence
    - importance of the evidence
    - the nature of the offence
    - gravity of contravention
    - whether it was deliberate or reckless
    - whether it contravened the ICCPR (inconsistent with human rights)
    - whether other proceedings will address contravention
    - difficulty of obtaining evidence without contravening Australian law.
  - When considering cases on improper police conduct, Courts need to distinguish between cases where:
    - the police behaviour induces the crime (e.g. solicitation or entrapment);
    - the police participate in the crime (e.g. police corruption);
    - police behave improperly in investigating or prosecuting the crime.
  - Courts can sometimes be very tolerant of police behaviour that is deceptive, tricky, covert or even coercive police behaviour, but in cases such as Em, Carr, Tofilau and so on there is a line that is not to be crossed.
  - Not sufficient that there be an impropriety or illegality – evidence must be affected by the impropriety or illegality.
  - Difficulty obtaining evidence without contravening Aus law may favour admission where there is urgency to preserve evidence from loss / destruction, but may weigh against admission where illegality was deliberate or reckless ( Kadir and Grech v The Queen [2020] HCA 1 )
  - In relation to improperly obtained Admissions, s 138 should be explored before turning to the s 90 ‘Unfairness’ discretion. (Em v The Queen)
- s 136 Discretionary Rule
  - Unlike the other Discretionary Rules that empower the Court to exclude evidence - s 136 empowers the Court to limit the use of evidence.
  - Where evidence is unfairly prejudicial, misleading or confusing the Court “may” limit the use that may be made of that evidence.
  - In practical terms, s 136 operates through giving of judicial directions, where a TJ directs a jury about how they may, or may not, use the evidence.
  - Common examples where s 136 may be invoked:
    - Where s 60 has been applied in order to allow otherwise inadmissible evidence to be adduced, but it is considered that it would be unfair or misleading to use the evidence for its Hearsay purpose – eg. Evidence is not admissible under other Hearsay Exceptions and there are reasons to doubt the reliability of the representation.
    - If a piece of evidence is admissible in more than one way (relevant for both hearsay and credibility uses) but one of those ways may be misleading, the TJ may direct the jury that they can use the evidence in one of those ways and explain why they cannot use it in the other way.
Warnings and Directions
- EA Warnings
  - The purpose of judicial warnings is to prevent miscarriages of justice occurring as a result of potentially unreliable evidence.
  - Warnings may be made under s 165 EA in relation to “unreliable evidence”. There are several categories of evidence which have historically been shown to be problematic. These categories are set out in s 165(1) and include:
    - Hearsay evidence
    - Identification evidence
    - Evidence possibly affected by age, ill health etc of Witness
    - Evidence given by a Witness who may have been criminally involved
    - Evidence from Prison Informer
    - Written record of questioning of Defendant (no ERISP)
  - s 165(2) provides that if a party requests, the judge is to:
    - (a) warn the jury that the evidence may be unreliable, and
    - (b) inform the jury of matters that may cause it to be unreliable, and
    - (c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.
  - s 165(3) provides that TJ need not comply with subsection (2) if there are good reasons for not doing so.
  - s 165(4) states that there is no particular form of words that must be used in giving the warning.
  - Amendments to the Act under s 165A and s 165B have the effect of giving the TJ special directions regarding:
    - Warnings in relation to children’s evidence before a jury (s 165A) eg. Cannot say that child witnesses are unreliable etc
    - Delay in Prosecution - where the Defendant has suffered a significant forensic disadvantage (s 165B). If there has been a delay in the victim bringing their complaint about a crime, the TJ should assist the jury on the legal significance of the delay and the forensic disadvantage suffered by the Defendant (s 165(4) refers) .
  - In cases where there have been lengthy delays in bringing the complaint, the TJ may make comments that suggest that delay goes to the complainant’s credibility. See s 165B(5) for the limits on use .
- CL Warnings / Directions
  - Over the years many different warnings have emerged in order to deal with various issues arising in relation to the calling or assessment of evidence. Many of these CL Warnings are utilised by Trial Judges alongside the s 165 and s 165B Warnings.
    - Longman Direction (Longman v The Queen (1989) 168 CLR 79)
      - Warning that given the Complainant’s evidence could not be adequately tested because of the passage of time, it would be “unsafe or dangerous” to convict on uncorroborated evidence of the complainant alone.
    - Murray Direction (R v Murray (1987) 11 NSWLR 12)
      - Warning that where the Crown relies on one witness only, the jury, before acting on the evidence of that witness, must scrutinise the evidence of that witness with great care.

Week 13: Privilege

What is Privilege?
- The Concept of Privilege ?
  - General rule in litigation is that for reasons of fairness, the parties disclose to each other everything that would be reasonable for them to know – unfair if a party concealed something important from the other side.
  - Traditionally, the law has recognised certain relationships, where the preservation of trust between confider and confidant, overrides the law’s interest in full disclosure of the facts.
  - They are privileged, because they are seen to be more important than the principle that says disclosure equates with fairness.
  - Because there are some principles and relationships that the law wishes to protect – may result in certain evidence not being revealed to another party.
    - May require the Court to undertake a ‘balancing act’ to decide whether to protect the information or have it disclosed.
  - Presents a dilemma as to what types of material / relationships should be protected – if it is protected, on what basis ??
- Privilege def is a right to resist compulsory demands for information.
  - It will act as a bar to compulsory demand (Federal Police v Propend Finance)
  - The concept of Privilege acts against the notion that all relevant evidence should be admitted.
  - Privilege looks at public interest favouring non-disclosure unless the public interest in disclosure is greater.
  - It is important to remember that the Common Law privileges operate alongside the various Uniform Evidence Act provisions.
- Different types of Privileges may that be claimed include:
  - Client Legal Privilege
  - Professional Confidential Relationship Privilege
  - Sexual Assault Communication Privilege
  - Other Privileges (eg. Religious Confessions, Self-Incrimination)
  - Public Interest Immunities
  - Privilege is a very technical area of the law but is extremely important for all Legal Practitioners.
- Client Legal Privilege
  - Client Legal Privilege recognises that there is something special about the relationship between a lawyer and his / her client.
  - Important to note that Client Legal Privilege attaches to the Client – it should not be seen as a Lawyer’s entitlement.
  - Client Legal Privilege is similar in effect to Legal Professional Privilege (Common Law) but broader in its application.
  - Prior to the amendments to the Evidence Act, a different standard applied to legal privilege for pre-trial proceedings. Before s 131A enacted, pre-trial privilege was governed by the Common Law and trial privilege was governed by the Evidence Act – now both pre-trial and trial claims of legal privilege dealt with under Evidence Act.
  - Client Legal Privilege (CLP) is dealt with under EA as two sub-categories: Advice ( s 118) and Litigation ( s 119).
  - Advice ( s 118)
    - CLP attaches to communications between a client and their legal advisor for the dominant purpose of obtaining or giving legal advice.
    - s 118 requires there be a client/lawyer relationship.
    - s 118 does not extend to communications with 3rd parties.
    - However it does extend to documents provided by 3rd party to the client or lawyer for the dominant purpose of providing legal advice.
  - Litigation ( s 119)
    - CLP attaches to communications between a client, the client’s legal advisor and 3rd parties, for the dominant purpose of use in, or in relation to, litigation that is either pending or in contemplation.
    - s 119 is similar to s 118 but with 2 important differences:
    - the dominant purpose for which the document was made; and
    - the application of the privilege to 3rd party communications.
  - Definitions (s 117)
    - Client – includes inter alia:
      - Employer of lawyer.
      - Employee or agent of a client.
      - An employer being the Cth, State or Territory, or a body established under the law of the Cth, State or Territory.
    - Confidential Communication means:
      - A communication made in such circumstances that when it was made, the person who made it (Confider), or person to whom it was made (Confidant), was under an express or implied obligation not to disclose its contents.
    - Confidential Document means:
      - A document prepared in circumstances that when it was prepared, the person who prepared it (or for whom it was prepared) was under an express or implied obligation not to disclose its contents.
    - Lawyer:
      - Includes Australian and over-seas registered foreign lawyers and an employee or agent of a lawyer.
  - Dominant Purpose Test
    - Not all confidential communications are privileged – only privileged if they are created for the dominant purpose of the legal advisor providing legal advice or services. (Esso v Federal Commission for Taxation (1999) 201 CLR 49)
    - The dominant purpose is ’ the ruling, prevailing or most influential purpose ’ for which a document is brought into existence. (Federal Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404 at 416)
    - If there are several purposes for a document’s creation, only one of those purposes will be the dominant one.
    - The purpose for which a document is brought into existence is a question of objective fact, which is generally determined by reference to:
      - evidence itself
      - nature of the document
      - submissions from the parties.
    - Generally, the dominant purpose is to be determined at the time at which the document is brought into existence, not the time of its communication – What was the purpose which led to the making of the document ??? (Carnell v Mann (1998) 159 ALR 647)
  - Pursuant to s 120 EA, Client Legal Privilege also applies to self-represented litigants. The privilege extends to communications / documents between a self-represented litigant and a 3rd Party.
    - the dominant purpose under s 120 is for preparing for, or conducting the proceeding.
  - In Daniels v ACCC (2002) 213 CLR 543 the ACCC was given coercive powers to investigate under the TPA - but those powers did not explicitly say that they would override CLP.
    - The HCA held that CLP, as a ‘privilege’, needs to be explicitly abrogated by legislation, and cannot be abrogated by inference. The HCA said that CLP was not merely a rule of substantive law, but an important common law right, or rather, a common law immunity.
  - Client Legal Privilege can be lost through consent / waiver, compulsion of law, misconduct and by statute removing the privilege.
  - Client Legal Privilege may be waived, but only by the client, not the lawyer. The privilege belongs to the client; it is their privilege to waive.
  - It may also be waived where the client has, in some way, surrendered the privilege through “knowing and voluntary disclosure”, - the privilege is waived where the person has “acted in a way that is inconsistent with” the privilege. ( s 122 refers)
  - Mistaken disclosure will not necessarily result in loss of privilege. In Armstrong [2012] document disclosed during formal discovery by mistake – NSWCA held privilege not waived by the accidental disclosure.
  - Client Legal Privilege can also be lost for other reasons:
    - partially (not entirely) revoked by the death of the client – only revoked in respect of evidence of the intentions or competence of the deceased ( s 121(1));
    - if it prevents the enforcement of a court order ( s 121(2));
    - if it interferes with someone’s rights ( s 121(3)); or
    - if the communication is made in pursuit of a fraud, crime or other abuse of power ( s 125).
  - *** Remember - privilege is itself a right, and it exists in a hierarchy of rights. So, although Client Legal Privilege is a right, it may be outweighed by other rights.
  - Ask:
    - Is the evidence sought to be adduced relevant to a fact in issue?
    - Was the dominant purpose of the communication to obtain legal advice, or to obtain professional legal services relating to litigation, so that the privilege applies to the communication?
    - Has the privilege been lost for any reason?
    - If you answer Yes, Yes, No to these questions, Client Legal Privilege will be found.
    - *** Client Legal Privilege is absolute – it does not need the Court to balance the desirability of disclosing the material against the desirability of not disclosing it.
- Professional Confidential Relationship Privilege
  - EA recognises that there are other professional relationships that give rise to a confidence (not just lawyer / client).
    - Circumstances where a person who is acting in a professional capacity is told something in confidence and that they (the professional) understands that they have been told something in confidence. This is called a ‘protected confidence’ – see Definitions in s 126A.
  - Professional Confidential Relationship Privilege (PCRP) is a statutory privilege; there is no comparable privilege at CL because the CL does not recognise confidentiality as a ground of privilege from disclosure (Wran v ABC [1984] 3 NSWLR 241).
  - In NSW, PCRP covers a wide range of confidential communications – NSW Act does not attempt to define the ambit.
    - Doctor / Health Professional
    - Journalist
    - Social Worker
    - Accountant
  - The Cth Act only covers confidential communications with Journalists.
  - As set out in s 126B(1), the Court may direct that evidence not be adduced if it would disclose:
    - a protected confidence
    - a document recording a protected confidence
    - any Protected Identity information
  - 126A Definitions
    - (1) In this Division:
      - protected confidence means a communication made by a person in confidence to another person (in this Division called the confidant):
      - (a) in the course of a relationship in which the confidant was acting in a professional capacity, and
      - (b) when the confidant was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law or can be inferred from the nature of the relationship between the person and the confidant.
    - protected confider means a person who made a protected confidence.
    - harm includes actual physical bodily harm, financial loss, stress or shock, damage to reputation or emotional or psychological harm (such as shame, humiliation and fear). ‘Harm’ is given a wide definition.
    - protected identity information means information about, or enabling a person to ascertain, the identity of the person who made a protected confidence.
    - (2) For the purposes of this Division, a communication may be made in confidence even if it is made in the presence of a third party, if the third party’s presence is necessary to facilitate communication.
  - When considering whether to grant the Privilege, the Court is required to balance potential harm in a particular case against public interest of having all relevant material before the Court.
  - Under s 126B(3) when the Court is dealing with the issue of PCRP, it must consider:
    - What likely harm would / may be caused to the protected confider if the evidence were adduced; AND
    - Whether the nature / extent of the harm outweighs the desirability of hearing the evidence.
  - The court may inspect a document for the purpose of determining whether it is privileged. ( s 133)
- In undertaking this balancing exercise under s 126B(4), the Court will have to consider factors such as:
  - the probative value of the evidence
  - the nature and gravity of the cause of action
  - the availability of other evidence
  - the effect or harm of admitting the evidence
  - whether the substance of the confidence has already been disclosed elsewhere.
  - *** Not an exhaustive list
  - Unlike the Client Legal Privilege (which is absolute) the PCRP requires a judge to undertake the s 126B balancing exercise - this is sometimes called a “guided discretion”, because it guides the judge as to how he / she must exercise his / her discretion as to whether or not to recognise the privilege.
- Loss of PCRP
  - PCRP may be lost if:
    - the confider gives consent for the protected material to be disclosed ( s 126C);or
    - the confidential material relates to, or was made as part of, a fraud / offence / misconduct ( s 126D).
- Section 126D means that the privilege will not apply to a communication or document that furthers the commission of a fraud or an offence, or renders a person liable to a civil penalty.
  - It is not enough that a communication or document is evidence of fraud etc, it must be made with the intention of facilitating the fraud.
Other Privileges & Immunities
- Sexual Assault Communications Privilege
  - Because of a dispute that arose about whether sexual assault counsellors were included within the PCRP protected confidences under s 126B, a special new privilege emerged. The case that led to the change in the law was R v Young.
  - R v Young (1999) 46 NSWLR 681
    - In this case, a 16 year old girl alleged that she had been sexually assaulted, which led to Young being charged. To deal with her trauma, the girl saw a counsellor. During these counselling sessions, the counsellor took notes. *** Note-taking is a standard practice for counsellors.
    - At trial, Young sought access to the counsellor’s notes. The Counsellor refused to hand them over, saying they were confidential. Court held that there was not a privilege attaching to them, and she needed to hand them over. The counsellor refused, and was sent to prison for Contempt of Court.
  - Why did Young want access to the notes? What might be in the notes that would assist his defence?
    - May have been some comment in the notes where the Complainant said it was her fault, that she should have done things differently etc – very common for victims of crime to some how try and blame themselves for what has happened
  - The reason why it was held by the Court that PCRP did not apply was that Division 1B only applied to the adducing of evidence and could not protect sexual assault communications in relation to discovery and the production of documents. Basically PCRP would cover the oral evidence but not the notes under a discovery / production order.
  - In order to rectify / clarify the problem relating to Sexual Assault Communications, a special Sexual Assault Communications Privilege was created in the NSW Criminal Procedure Act 1986 – Part 5 – Division 2 – s s 295-298.
  - s 296 of Criminal Procedure Act relates to counselling communications made by / to / or about the victim of a sexual assault offence.
  - s 300 of Criminal Procedure Act provides that the privileged material may be released, with the consent of the Principle Protected Confider (the person to whom the proceedings relate).
  - Consent must be in writing.
- Privilege Against Self-Incrimination
  - At Common Law, a person is not obliged to answer a question, or to produce documents, or to do anything if, in doing so, it might expose them to a criminal conviction or a civil penalty.
  - Conceptually the Privilege Against Self-Incrimination is related to the presumption of innocence and also the right to silence.
  - This Common Law privilege has been codified in s 128 EA. The privilege against self-incrimination only applies to individual human beings. It does not apply to companies.
  - Under s 128, a Witness may object to answering a question on the grounds that their evidence may incriminate them / make them liable to suit.
  - If Witness makes a claim for privilege under s 128(1), Judge must determine if grounds of objection are reasonable ( s 128(2) refers)
  - Having considered that reasonable grounds for the objection exist , the Judge will inform the person that they do not need to give evidence ( s 128(3) refers)
  - However, under s 128(4), the Court may also decide that the Witness should give evidence because:
    - (a) the evidence does not tend to prove that the witness has committed an offence against / under an Australian law, or a law of a foreign country (includes liability to civil penalty); or
    - (b) the interests of justice require that the witness give the evidence.
  - If the evidence is required for interests of justice, the Court may issues a Certificate (Immunity) under s 128(5).
  - Following HCA decision in Cornwell v The Queen the Certificate still continues even if given in error.
  - Pursuant to s 128(10), the Privilege does not apply in criminal proceedings in relation to evidence from a Defendant which relates to either:
    - (a) an act by the Defendant - the doing of which is a fact in issue; or
    - (b) the Defendant had a state of mind - the existence of which is a fact in issue.
      - Basically, s 128(10) means that the Defendant cannot claim privilege where his evidence tends to show (directly or indirectly) that the Defendant committed the crime for which he is charged.
      - eg. If D had been charged with drug importation, he / she could not claim PASI in relation to questions involving the supply of drugs because those questions would relate to the offence for which he / she is standing trial.
- Religious Confessions
  - There has been a degree of argument whether or not a Privilege ever attached to Religious Confessions, at Common Law.
  - Despite this disagreement, such a Privilege is contemplated in s 127 EA.
  - Pursuant to s 127(1) a person who is, or was, a member of the clergy of any church or religious denomination is entitled to refuse to divulge that a religious confession was made, or the contents of a religious confession made, to the person when a member of the clergy.
  - In this section:
    - “religious confession” means a confession made by a person to a member of the clergy in the member’s professional capacity according to the ritual of the church or religious denomination concerned.
- Public Interest Immunities
  - Deals with information which is otherwise relevant to the proceedings but is withheld on basis that the public interest in its disclosure is outweighed by the public interest to suppress it.
  - When dealing with the Public Interest Immunities, the Court is required to undertake a balancing exercise when assessing the competing interests. Sankey v Whitlam (1978) 142 CLR 1
  - EA envisages different types of Public Interest Immunities
    - Exclusion of evidence of reasons for judicial decisions ( s 129)
    - Exclusion of evidence of matters of state ( s 130)
    - Exclusion of evidence of settlement negotiations ( s 131)

Law School Notes Repository

Explorer

Evidence Law Notes

Cheat Sheet

Week 1: Evifilta

Week 6: Hearsay

‘First-Hand Hearsay Exceptions’ or

Exam Template

To exclude: PV must be substantially outweighed by PE

To exclude: PV need only be outweighed by PE

Three pathways for Credibility +/or Hearsay

Table of Contents

Week 1: Evidence Overview

Evidence: Evifilta

Evifilta

Week 2: Witness Competence, Compellability, and Examniation

Week 3: Calling Witnesses / Right to Silence

Week 4: Relevance

Week 5: Hearsay Exclusionary Rule

Week 6: Hearsay Evidence

Overview of First Hand Hearsay Exceptions

Overview of Hearsay Evidence

Week 7: Witness Credibility / Character Evidence

Section 101A Pathways

Week 8: Evidence for Non-Hearsay Purpose / Admissions

AN EXAMPLE OF WHEN s 60 CAN BE APPLIED