Section 46 Leave to recall witnesses

Where the defence seeks to have evidence excluded on some factual basis (for example, the evidence was obtained in contravention of a law), a failure to suggest the contravention to a prosecution witness who has given evidence about the obtaining of the evidence may be regarded as a breach of the rule in Browne v Dunn. In Kadir v The Queen (2020) 94 ALJR 168; [2020] HCA 1, the High Court observed at [46] that it was correct to hold that the failure to put such a proposition to the prosecution witness meant that “it was not open to the trial judge to find that any breach of the SDA was deliberate, reckless or possibly even negligent”.

Section 59 The “hearsay rule” – exclusion of hearsay evidence

In Stevenson v The Queen [2020] VSCA 27, the Victorian Court of Appeal held that evidence of a representation as to a person’s age to prove that the person who heard the representation was aware of the person’s age was not caught by the hearsay rule.

Section 71 Exception – electronic communications

In Stevenson v The Queen [2020] VSCA 27, the Victorian Court of Appeal considered a trial where, in order to prove when “posts” from a Facebook account were actually written, the prosecution relied upon screenshots of a “speech bubble displaying the date and time” of each post (where a police officer testified that the speech bubble appeared when a cursor was placed over a symbol appearing immediately below the post). Croucher AJA (Whelan and Kyrou JJA agreeing) stated at [81]:

[I]f the evidence of the dates and times was properly characterised by the judge as hearsay, then her Honour was right to hold that that evidence was admissible pursuant to s 71(b) of the Evidence Act. This is because, given the definitions already discussed of “electronic communication” and “document”, it is plain that the dates and times revealed by hovering the cursor over the “3y” symbols are capable of being described as “representation[s] contained in a document recording an electronic communication so far as the representation was a representation as to … (b) the date on which or the time at which the communication was sent”.

Section 79: Exception – opinions based on specialised knowledge

In Sidaros v The Queen [2020] ACTCA 11, the ACT Court of Appeal heard an appeal from a case where a judge had permitted a firearms expert to express an opinion that a shotgun cartridge found at the scene of a crime was fired from a particular exhibit shotgun (after referring to similarities between cartridges fired from the exhibit shotgun and the cartridges found at the crime scene). The Court of Appeal held at [83]:

It is not enough to assert that an opinion is based on specialised knowledge. The opinion of “sufficient agreement” is not susceptible to objective measurement in this case. While in Dasreef it was stated that where “a specialist medical practitioner [is] expressing a diagnostic opinion in his or her relevant field of specialisation” satisfying the requirements of s 79 “will require little explicit articulation or amplification”, this evidence is not analogous to such specialist medical evidence. Nor is the judicial notice of fingerprint evidence apposite in this context. The visual comparison by Mr Roberts was subjective in nature and not conducted by reference to accepted objective criteria. Evidence of similarity based on objective criteria is one thing, evidence purporting to establish that it is from the same firearm is quite another. It does not on the facts of this case go above a bare ipse dixit - I say it is: see Dasreef at [93]. There has been a failure to demonstrate that the opinion is based on the witness' specialised knowledge. In this context assertion cannot constitute expert evidence.

Section 90 Discretion to exclude admissions

In Sidaros v The Queen [2020] ACTCA 11, the ACT Court of Appeal applied the test formulated by the High Court in Swaffield (“whether the admission of the evidence or the obtaining of a conviction on the basis of the evidence is bought at a price which is unacceptable, having regard to contemporary community standards”) in a case where it was accepted that there was a breach of the “fundamental common law accusatorial principle” (at [55], [62], [63]). The appellant had expressly asserted his right to silence by declining to be interviewed by the police after he was arrested, and then undercover officers were placed in his cell in order to attempt to elicit admissions. The Court of Appeal accepted at [56] that “an element of deception in and of itself” would not result in exclusion of the evidence but concluded at [57] that, in the circumstances of this case, the admissions thereby obtained were obtained at a price which was “unacceptable having regard to community standards”, bearing in mind that there was a “breach of the common law accusatorial principle” (at [62]). It may be noted that a submission made by the Crown that “if Swaffield were decided against prevailing contemporary standards the result would be different” was not accepted, the Court of Appeal observing at [55] that “[t]he maintenance of the rule of law in a liberal democracy and, in this case, the protection of the fundamental common law accusatorial principle is not subject to the shifting sands of opinion polling”. The Court of Appeal held at [38] that House v The King principles did not apply since “the question admits of only one correct answer”. Accordingly, the “correctness standard” was applied.

Section 118 Legal advice

The NSW Court of Criminal Appeal held in Director of Public Prosecutions (Cth) v Kinghorn [2020] NSWCCA 48 at [62]–[64] that a document may be referable to both the function of the Commonwealth Director of Public Prosecutions (CDPP) as a “client” for the purposes of the privilege provisions (with an employed solicitor providing legal services to the Director) and also to the function of the CDPP as a “lawyer” providing legal advice to a Government department. The court did not accept a submission that being that the CDPP being the “lawyer” advising the “client” department and is also the “client” being advised by her own “lawyer” must be “mutually exclusive” (at [62]). The court also noted at [174] that each of the definitions of the terms “confidential communication” and “confidential document” in s 117:

… concern whether the circumstances “when [the communication or document] was made” were such as to impose an express or implied obligation not to disclose its contents on the maker or receiver. Even if later circumstances transpire to impose an obligation on a party to disclose the communication or document, they do not lose their status as confidential communications or documents for the purposes of ss 118 and 119. Instead, in those circumstances the loss of privilege is governed by s 122 and not by the document or communication losing its status as “confidential” when it was made.

Section 122 Loss of client legal privilege – consent and related matters

The distinction between a test of “inconsistency” between the conduct of the client and the maintenance of confidentiality, which is, “where necessary informed by the consideration of fairness”, and a “principle of fairness operating at large” was emphasised by the NSW Court of Criminal Appeal in Director of Public Prosecutions (Cth) v Kinghorn [2020] NSWCCA 48. The court at [172] rejected an argument that breach of a prosecutorial duty to disclose certain documents might result in, or “could inform”, “imputed waiver”. The court observed at [171]:

… Whatever its precise rationale, imputed waiver of privilege is not a means of serving a wider public interest in ensuring a fair trial (or hearing), beyond enabling disclosure of otherwise privileged material when the relevant form of inconsistency is demonstrated.

Section 125 Loss of client legal privilege — misconduct

The NSW Court of Criminal Appeal, in Director of Public Prosecutions (Cth) v Kinghorn [2020] NSWCCA 48, has drawn a distinction between documents prepared in “furtherance” of the alleged offences “that is, by way of some advancement or possible concealment of those (alleged) offences as opposed to merely recording the facts that amount to their occurrence”. It will not be sufficient to establish that there are “reasonable grounds for finding that” the fraud, etc “was committed”; that the relevant facts, if established, only arguably amount to fraud or the other specified matters (at [118]). The requirement will only be satisfied if there are reasonable grounds for finding facts that would, if established, constitute fraud, etc.

Section 138 Exclusion of improperly or illegally obtained evidence

In Kadir v The Queen (2020) 94 ALJR 168; [2020] HCA 1, the High Court noted that s 138 “is not confined to criminal proceedings or to evidence obtained by, or in consequence of, the misconduct of those engaged in law enforcement” and “the public interests that the court is required to weigh are broader than those weighed in the exercise of the Bunning v Cross discretion”. However, Kiefel CJ, Bell, Keane, Nettle and Edelman JJ then stated at [13]:

The undesirability of admitting evidence recognises the public interest in not giving curial approval, or encouragement, to illegally or improperly obtaining evidence generally. In a criminal proceeding in which the prosecution seeks to adduce evidence that has been improperly or illegally obtained by the police (or another law enforcement agency), the more focussed public interests identified in Bunning v Cross remain apt.

The High Court distinguished between certain evidence that fell within s 138(1)(a) and other evidence that fell within s 138(1)(b), where the party obtaining the evidence “in consequence of … a contravention of an Australian law” had not itself contravened any Australian law or condoned any breach of Australian law. Kiefel CJ, Bell, Keane, Nettle and Edelman JJ observed at [40] that “satisfaction of the causal link between the evidence and the contravention” engaged this provision but “the weighing of the competing public interests under s 138(1) involved considerations which are not the same as those applying to the admissibility” of the evidence that fell within s 138(1)(a). The way in which the latter evidence was obtained was “materially different” and the undesirability of admitting the evidence was not the same (at [125]) and the former evidence was held admissible while much of the latter evidence was properly excluded. Furthermore, the strength of the causal link between the contravention or impropriety and the evidence will bear on the public interest in excluding the evidence. The High Court accepted at [41] that the fact that “[t]he causal link between the contravention and the [evidence] was tenuous” was “a consideration [that] was capable of affecting the weighing of the public interest in not giving curial approval or encouragement to the unlawful conduct”. The following proposition was regarded as “apt” (at [51]):

[T]he bare connection between the contravention of Australian law and obtaining the [evidence] is unlikely to convey curial approval or encouragement of the contravention… .

The High Court at [48] placed considerable importance on the fact that a private body (the RSPCA) “had no advance knowledge” of a plan on the part of a second body (Animals Australia) to contravene the law and “nothing to suggest a pattern of conduct by which Animals Australia or other activist groups illegally collect material upon which the RSPCA takes action”, in determining that evidence obtained pursuant to a search warrant obtained by the RSPCA (in consequence of the evidence unlawfully obtained by Animals Australia) should be admitted, although the evidence obtained by Animals Australia was excluded.
As regards the consideration “whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention”, the High Court stated at [16]:

…Where an officer is likely to be dealt with in another forum for his or her misconduct, the need to exclude evidence as a deterrent is reduced. The significance of the availability of other proceedings in the case of misconduct by a private individual to the wider public interest under s 138(1) is less apparent. Here, the trial judge appears, correctly, to have treated the fact that no proceedings are likely to be taken against any person in relation to the contravention … as a neutral factor.

As regards the consideration of “the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law”, the High Court stated at [20]:

[W]here the impropriety or illegality involved in obtaining the evidence is deliberate or reckless (factor (e)), proof that it would have been difficult to obtain the evidence lawfully will ordinarily weigh against admission. By contrast, where the impropriety or illegality was neither deliberate nor reckless, the difficulty of obtaining the evidence lawfully is likely to be a neutral consideration. The assumption on which the parties and the Courts below proceeded, that proof that it would have been difficult to lawfully obtain the surveillance evidence was a factor which weighed in favour of admitting evidence obtained in deliberate defiance of the law, inverts the policy of the exclusion for which s 138 provides.

Section 146 Evidence produced by processes, machines and other devices

An example of the application of this provision is the Victorian Court of Appeal judgment in Stevenson v The Queen [2020] VSCA 27. In order to prove that the applicant was aware that the complainant was 15 years old, the prosecution tendered screenshots of “posts” from the complainant’s Facebook account. In one post, the complainant’s sister wrote that the complainant “is 15”. A subsequent post was purportedly sent by the applicant and the jury were asked to infer that he would have read the earlier post by the complainant’s sister. In order to prove when the posts were actually written, the prosecution relied upon screenshots of a “speech bubble displaying the date and time” of each post (where a police officer testified that the speech bubble appeared when a cursor was placed over a symbol appearing immediately below the post). Croucher AJA (Whelan and Kyrou JJA agreeing) held at [71]–[73] that this provision could be utilized to prove when the posts were written:

… Given the definitions of “document” and “information”, the Facebook posts showing the dates and times in the speech bubbles were “documents” in that they were records of information (meaning information in the form of “data, text or images”) from which “images or writings could be reproduced with or without the aid of anything else” – the reproduction in this case being with the aid of the informant hovering the cursor over the “3y” symbol.
In the terms of s 146(1), the document containing those dates was produced wholly or partly by a computer device or process and was tendered by the Crown, who asserted that, in producing the document, the computer device or process produced a particular outcome – namely, the disclosure of a date and time that the post in the document was sent.
Further, employing the language of s 146(2), it was reasonably open to find that the computer device or process was one that, or was of a kind that, if properly used, ordinarily produces that outcome, such that it was presumed (unless evidence sufficient to raise a doubt about the presumption was adduced) that, in producing the document containing those dates and times on the occasion in question, the computer device or process produced that outcome.

In the absence of expert evidence challenging, in a material way, the accurate workings of the Facebook system of recording the dates and times of posts, the Court of Appeal was not persuaded that there was evidence sufficient to raise a doubt about the presumption (Croucher AJA at [79]).

Section 161 Electronic communications

An example of the application of this provision is the Victorian Court of Appeal judgment in Stevenson v The Queen [2020] VSCA 27. In order to prove that the applicant was aware that the complainant was 15 years old, the prosecution tendered screenshots of “posts” from the complainant’s Facebook account. In one post, the complainant’s sister wrote that the complainant “is 15”. A subsequent post was purportedly sent by the applicant and the jury were asked to infer that he would have read the earlier post by the complainant’s sister. In order to prove when the posts were actually written, the prosecution relied upon screenshots of a “speech bubble displaying the date and time” of each post (where a police officer testified that the speech bubble appeared when a cursor was placed over a symbol appearing immediately below the post). Croucher AJA (Whelan and Kyrou JJA agreeing) held at [75]–[77] that the evidence was admissible pursuant to this provision:

[T]he Facebook posts showing the dates and times in the speech bubbles were “documents” in that they were records of information (meaning information in the form of “data, text or images”) from which “images or writings could be reproduced with or without the aid of anything else” – the reproduction again being with the aid of the cursor hovering over the “3y” symbol.
Contrary to the submission of the applicant’s counsel, it matters not that the dates and times may have been assertions made by Facebook “extraneous to the communication made by the applicant” or that they required, for their production, the actions of the informant to place the cursor over the “3y” symbol.
Instead, applying the terms of the preamble to s 161(1), the Facebook posts purported to contain records of “electronic communications”, being “communication of information in the form of data, text or images by means of guided or unguided electromagnetic energy, or both”. That definition, in my opinion, is apt to capture the information concerning dates and times of posts displayed when the cursor is placed over the “3y” symbol. In those circumstances, pursuant to s 161(1)(c), it was presumed (unless evidence sufficient to raise a doubt about the presumption was adduced) that the communication was sent or made on the day on which, and the time at which, it appears from the document to have been sent or made. Thus, contrary to the applicant’s submission, it is irrelevant whether it could or could not be established that the applicant’s communication was imparted to or exchanged with another. Instead, it was enough, for the purposes of s 161(1)(c), that the communication had been “sent”.