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September 2015

• Section 18 Competence: lack of capacity
• Section 20 Comment on failure to give evidence
• Section 75 Exception: interlocutory proceedings
• Section 79 Exception: opinions based on specialised knowledge
• Section 130 Exclusion of evidence of matters of state
• Section 131 Exclusion of evidence of settlement negotiations
• Section 131A Extended application of Division 1A
• Section 137 Exclusion of prejudicial evidence in criminal proceedings

Updated 9 September 2015

Section 18 Competence: lack of capacity

Section 18(6) states that "[a] person who makes an objection under this section to giving evidence or giving evidence of a communication must not be required to give the evidence if …". Plainly enough, "giving evidence" would include the person testifying orally in the proceeding. It has been held that this may extend to the playing of a videotape of earlier testimony given by the person: see R v B O (No 2) (2012) 15 DCLR (NSW) 317; [2012] NSWDC 195, discussed in Fletcher v The Queen [2015] VSCA 146 at [56] – [58]. It would not extend to a party adducing a written statement made by the person: Fletcher v The Queen [2015] VSCA 146 at [59] – [61].

Section 20 Comment on failure to give evidence

This provision has been deleted from the Victorian Act. Division 6 of Pt 4 of the Jury Directions Act 2015 (Vic) contains provisions relating to the failure to give evidence or call a witness that apply in criminal trials. The position may be summarized as follows:

(1) failure of accused to give evidence or call a particular witness

(i) Section 42 provides that "the trial judge, the prosecution and defence counsel (or, if the accused is unrepresented, the accused) must not say, or suggest in any way, to the jury that" the jury may:

(a) conclude that the accused is guilty from that fact; or

(b) use the failure of the accused to provide an explanation of facts, which must be within the knowledge of the accused, to more safely draw an adverse inference based on those facts which, if drawn, would prove the guilt of the accused; or

(c) draw an inference that the accused did not give evidence or call a witness (as the case requires) because that would not have assisted his or her case.

This prohibition applies generally and there is no provision in the Act qualifying it. Accordingly, it has the effect of overturning the common law principle that "rare and exceptional" circumstances may arise where the reasoning in Weissensteiner v The Queen (1993) 178 CLR 217; 68 A Crim R 251; [1993] HCA 65 would justify some adverse comment (see Note 1 to s 44). If a party breaches the prohibition in this provision, the trial judge must "correct" the "statement or suggestion" (s 7). However, s 7(2) provides that the trial judge need not correct the statement or suggestion "if there are good reasons for not doing so" and gives the example of where "counsel has already corrected a prohibited statement or suggestion at the invitation of the trial judge".

(ii) Section 41 provides that defence counsel may request under s 12 that the trial judge give the jury a direction which "must explain" a number of matters specified in s 41(2):

(a) the prosecution's obligation to prove that the accused is guilty; and

(b) that the accused is not required to give evidence or call a witness (as the case requires); and

(c) that the jury should not guess or speculate about what might have been contained in the evidence; and

(d) that the fact that the accused did not give evidence or call a witness (as the case requires)—

(i) is not evidence against the accused; and

(ii) is not an admission by the accused; and

(iii) must not be used to fill gaps in the evidence adduced by the prosecution; and

(iv) does not strengthen the prosecution case.

Section 14(1) requires the trial judge to give the "requested direction unless there are good reasons for not doing so" (the same formulation as found in s 165B(3): see [1.4.3210]). Section 14(2) specifies matters the trial judge must have regard to in determining whether there are such "good reasons". It would also be material to consider the prohibition in s 42. In giving a direction to the jury, the trial judge need not use any particular form of words: s 6 (see also s 5(4)). However, the direction must not breach the prohibition in s 42 (see above). If there has been no request for a direction, s 15 provides that, "[s]ubject to section 16, the trial judge must not give the jury a direction". Section 16 mandates a direction "if the trial judge considers that there are substantial and compelling reasons for giving the direction" (and certain procedural requirements are satisfied). Any rule of common law under which a trial judge is required to direct the jury regarding the failure of accused to give evidence or call a particular witness is abolished: s 44.

(2) failure of prosecution to call or question a particular witness

Section 43 provides that defence counsel may request under s 12 that the trial judge direct the jury on the fact that the prosecution failed to call or question a particular witness. Section 14(1) requires the trial judge to give the "requested direction unless there are good reasons for not doing so" (the same formulation as found in s 165B(3): see [1.4.3210]). Section 14(2) specifies matters the trial judge must have regard to in determining whether there are such "good reasons". However, s 43(2) provides that the trial judge may give that direction only if the trial judge is satisfied that the prosecution–

(a) was reasonably expected to call or question the witness; and

(b) has not satisfactorily explained why it did not call or question the witness.

As regards the term of the direction, the Act is not specific, subject to s 43(3) which provides that, in giving the direction, "the trial judge may inform the jury that it may conclude that the witness would not have assisted the prosecution's case". In giving a direction to the jury, the trial judge need not use any particular form of words: s 6 (see also s 5(4)). Presumably, the jury should also be directed that it cannot be inferred that the evidence not adduced "would have been unfavourable to the prosecution case" (see [1.3.110]). Particular care will be needed in the giving of directions where the defence has the onus of proof in respect of a fact in issue. If there has been no request for a direction, s 15 provides that, "[s]ubject to section 16, the trial judge must not give the jury a direction". Section 16 mandates a direction "if the trial judge considers that there are substantial and compelling reasons for giving the direction" (and certain procedural requirements are satisfied). Any rule of common law under which a trial judge is required to direct the jury regarding the failure of the prosecution to call or question a particular witness is abolished: s 44. Accordingly, the common law principles established in Dyers v The Queen (2002) 210 CLR 285; 76 ALJR 1552; [2002] HCA 45 (see [1.3.110]) no longer apply.

Section 75 Exception: interlocutory proceedings

In R v Nona [2015] ACTSC 175, Refshauge J of the ACT Supreme Court held at [37] – [48] that a voir dire to determine the admissibility of evidence is interlocutory, since it would "not determine the rights of the parties finally; … it will only 'decide how the cause is to be conducted'.".

Section 79 Exception: opinions based on specialised knowledge

The Victorian Court of Appeal held in Tuite v The Queen [2015] VSCA 148 at [70] that this provision "leaves no room for reading in a test of evidentiary reliability as a condition of admissibility". While the "good grounds" requirement noted by the High Court in Honeysett v The Queen (2014) 253 CLR 122; 237 A Crim R 589; [2014] HCA 29 at [72] was adopted, without explaining what it entails, the Court concluded that the analysis of the United States Supreme Court in Daubert v Merrell Dow Pharmaceuticals Inc 509 US 579 (1993) requiring "appropriate validation" was derived from the term "scientific knowledge" in r 702, which does not appear in this provision. Yet requiring "appropriate validation" does not seem to be dependent on characterising an area of "knowledge" as "scientific". Indeed, as the Court of Appeal acknowledged in a footnote (footnote 78), the United States Supreme Court subsequently "took a different view" to that taken by the Court of Appeal, holding in Kumho Tire Co v Carmichael 526 US 137 (1999) that what had been said in Daubert applied to all "scientific", "technical" and "other specialized" matters within the scope of r 702. In truth, it seems that the primary basis for the Court of Appeal’s conclusion appears to have been the observations of the ALRC that it was proposed "not to introduce the 'field of expertise' test" and to rely on the "general discretion to exclude evidence … that has not sufficiently emerged from the experimental to the demonstrable" (see at [78] – [81]).

Section 130 Exclusion of evidence of matters of state

The Full Court of the Family Court concluded in Dupont v Chief Commissioner of Police (2015) 295 FLR 283; [2015] FamCAFC 64 at [57] that there is no difference between the position under this Act and the common law and, more specifically, that "the terms 'matters of state' can be used interchangeably with terms such as 'state papers', matters of government, the public service and the like".

Section 131 Exclusion of evidence of settlement negotiations

Section 131(2)(i) provides that privilege is lost if "making the communication, or preparing the document, affects a right of a person". In Teoh v Greenway [2015] ACTSC 133, a case where it was contended that an offer of settlement was as evidence of acknowledgment or confirmation of a cause of action which thereby extended the commencement date of the applicable limitation period, Burns J held, after an extensive consideration of both UEL and common law authority, that the term "right" should not be "given an expansive interpretation inclusive of the right to a remedy or a remedy of a particular type or quantum" (at [37]). Accordingly, this provision did not operate. Burns J stated at [39]:

It is not possible to authoritatively catalogue the circumstances in which the exception in s 131(2)(i) will operate, any more than it is possible to catalogue the circumstances in which the common law will recognise an exception to the general prohibition on adducing evidence of negotiations. Circumstances relevant to determining whether the exception in s 131(2)(i) is engaged will include the extent to which the common law would, in like circumstances, recognise an exception to the prohibition, the extent to which engaging the exception erodes the policy rationale behind s 131(1) and the demands of justice in the particular case. In the present case, to interpret s 131(2)(i) as extending to allowing the admission of the offer of settlement as evidence of acknowledgment or confirmation of the respondent’s cause of action would significantly erode the policy considerations underlying s 131(1). It would also extend beyond the exception recognised by the common law. Finally, there is no compelling reason why the interests of justice requires the provisions of s 131(2)(i) to be interpreted so as to allow the admission of the evidence.

Section 131A Extended application of Division 1A

This provision in the Commonwealth Act does not replicate the provisions in other UEL jurisdictions which extend the application of the privileges in Pt 3.10 (other than the provisions of s 123 and s 128) to pre-trial stages of civil and criminal proceedings. Furthermore, it has been held that those provisions are not "picked up" by a court exercising federal jurisdiction pursuant to s 79 of the Judiciary Act 1903: Dupont v Chief Commissioner of Police (2015) 295 FLR 283; [2015] FamCAFC 64 at [28] – [33].

Section 137 Exclusion of prejudicial evidence in criminal proceedings

The Victorian Court of Appeal observed in Tuite v The Queen [2015] VSCA 148 at [82] that the reliability of expert opinion evidence "falls for consideration under s 137". Thus, this provision is available to exclude opinion evidence which satisfies the requirements of s 79, emphasizing at [101] that "the touchstone of reliability for scientific evidence must be trustworthiness, and trustworthiness depends on validation". Where the evidence is based on "new science" the party proposing to rely on the evidence "will need … to establish that the underlying science is 'sufficiently reliable to be admitted in a court of law'." (at [106]).

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