The Uniform Evidence Law Noticeboard is your definitive resource for evidence law news as it occurs. With rapid updating by respected barrister, Stephen J Odgers SC, the Noticeboard keeps you apprised of all of the latest legislative and case developments related to evidence law. For a more detailed look into these and other matters, Uniform Evidence Law, the authority on evidence law, is available for subscription online, in looseleaf or on ProView eSub.

February 2017

• Section 18 Compellability of spouses and others in criminal proceedings generally
• Section 32 Attempts to revive memory in court
• Section 38 Unfavourable witnesses
• Section 55 Relevant evidence
• Section 63 Exception – civil proceedings if maker not available
• Section 65 Exception – criminal proceedings if maker not available
• Section 89 Evidence of silence
• Section 97 The tendency rule
• Section 110 Evidence about character of accused persons
• Section 118 Legal advice
• Section 122 Loss of client legal privilege – consent and related matters
• Section 138 Exclusion of improperly or illegally obtained evidence
• Dictionary “Unavailability of persons”

Updated 10 February 2017

Section 18 Compellability of spouses and others in criminal proceedings generally

In Mulvihill v The Queen [2016] NSWCCA 259, the NSW Court of Criminal Appeal noted at [132] an argument that a witness was not “required to give evidence” because the witness was not subpoenaed and appeared to be actively assisting the party that called her. However, the Court observed that “one difficulty with this point is that it could be said that, either when [the witness] was called in Court to enter the witness box to give evidence or, when questions were posed of her in the witness box, she was then ‘required’ to give evidence in the sense of being subject to a form of legal compulsion”. The Court did not need to resolve this issue. On the question of whether a failure by the court to form the opinion in s 18(4) (“that the person is aware of the effect of this section as it may apply to the person”) renders evidence given by the witness inadmissible, the NSW Court of Criminal Appeal observed at [135] that this was “doubtful”. The Court stated:

… In Gilmour v Environment Protection Authority (2002) 55 NSWLR 593; 134 A Crim R 466; [2002] NSWCCA 399 at [48] Santow JA (with whom Hidden and Adams JJ agreed) observed that “the section is not invoked by the Prosecution but can only be invoked by the spouse”. Arguably, the same applies to the accused in which case a failure to comply with the provision could not properly be said to affect his or her rights.

Further, it was pointed out at [137] that “even if the applicant can raise a failure to comply with that provision as a basis upon which the evidence should have been excluded”, a conclusion that the evidence would not have been adduced had the section been complied with could only be reached “if it could be concluded that [the witness] would have objected if she had been appraised of her right to do so and that the outcome of the weighing up process contemplated by s 18(6) would have resulted in her being excused from giving evidence”.

Section 32 Attempts to revive memory in court

It is not necessary that the witness succeeded in reviving any memory. As the Victorian Court of Appeal noted in CSR Ltd v Amaca Pty Ltd [2016] VSCA 320 at [79]:

There is nothing in s 32 that distinguishes between, on the one hand, giving evidence from refreshed memory, and, on the other hand, giving evidence of recorded memory. Subsection (1) precludes a witness, in the course of giving evidence, from using a document “to try to revive his or her memory” about a fact or opinion unless the court gives leave. Subsection (2) provides the matters that the court is to take into account in determining whether to give such leave. None of those factors preclude the giving of leave in a case in which the witness has no present recollection, and thus, if given leave, would give evidence based on recorded recollection.

The witness reading the document is still “giving evidence” even if the witness has no existing memory of the matters recorded in the document (at [86]).

Section 38 Unfavourable witnesses

Section 38(6) requires the court to take into account a number of matters in deciding whether to give leave to question an unfavourable witness as though in cross-examination. The party should give notice at the earliest opportunity that it is proposed to seek leave under this section, although a failure to do so is simply a factor to be taken into account in the exercise of the discretion. In Director of the Fair Work Building Industry Inspectorate v McCullough [2016] FCA 1291, it was stated at [66] that “the manner in which the issue arose in the course of the hearing and there having been no relevant prior notice of the issue and of the intention to cross-examine, led me to refuse leave to cross-examine”.

Section 55 Relevant evidence

In Commissioner of the Australian Federal Police v Courtenay Investments Ltd [2016] WASCA 194, it was observed at [128] that the principle derived from Jones v Dunkel (1959) 101 CLR 298; 32 ALJR 395; [1959] HCA 8 (that, assuming particular evidence would reasonably have been expected to be adduced by a party then, as a general rule, the adverse inference that may be drawn from the failure to adduce it is that the evidence, if adduced, would not have assisted the party’s case) only comes “into play when an inference is open from facts proved by direct evidence and the question is whether” the inference should be drawn – it will not apply where “an inference to that effect is simply not open on the evidence” (at [139]).

Section 63 Exception – civil proceedings if maker not available

A witness reading aloud a document pursuant to s 32(3) is still “giving evidence” of a representation recorded in that document for the purposes of this hearsay exception even if the witness has no existing memory of the representation recorded in the document: CSR Ltd v Amaca Pty Ltd [2016] VSCA 320 at [86]. If the document recounts the making of a representation, the evidence of that representation would be second-hand hearsay evidence (of that representation). Conversely, the evidence from the witness reading the document aloud pursuant to s 32(3) would be first-hand evidence of the making of the representation.

Section 65 Exception – criminal proceedings if maker not available

In Tasmania v Dolega [2016] TASSC 65, Brett J applied s 65(2)(b) (the representation “was made when or shortly after the asserted fact happened and in circumstances that make it unlikely that the representation is a fabrication”) subsequent to the judgment of the High Court in Sio v The Queen (2016) 90 ALJR 963; [2016] HCA 32, in relation to s 65(2)(d). Brett J observed at [19] that, while the focus of that provision is on the reliability of the representation, whereas under this provision it is on whether the representation is a fabrication, “both subsections operate in a similar way”. Brett J applied the proposition emphasised by the High Court that the focus must be on the particular representation rather than approaching the various representations made by the relevant person on a “compendious” basis. After considering a possible motive on the part of the person making the representations to fabricate evidence against the defendant, events subsequent to the making of the representations and the absence in the representations of matters that might have been expected to be recounted, it was concluded that a positive finding could not be made that the circumstances in which any of the representations were made “make it unlikely that the representation is a fabrication” (at [22]–[23]) – notwithstanding that all the representations were made in a statutory declaration.

Section 89 Evidence of silence

In Van der Vegt v The Queen [2016] NSWCCA 279, it was observed at [40]–[44] that the appellant did not exercise his right to silence at all and the prosecution was relying not on “silence” but on the fact that the version given in the witness box “was inconsistent” with the earlier version given to the police.

Section 97 The tendency rule

In Okwume v Commonwealth [2016] FCA 1252, Charlesworth J held at [235] that “a person” does not, for the purposes of this provision, include a Government Department.

Section 110 Evidence about character of accused persons

Because of the possibility of rebuttal evidence of bad character, a decision to adduce evidence of good character should be taken with great care and consideration should be given to seeking an advance ruling as to whether such rebuttal evidence will be admitted under this provision: see general discussion in R v Qaumi (No 61) [2016] NSWSC 1192 at [23]–[24]. In certain circumstances, the discretionary exclusionary provisions in Pt 3.11 may have application if the decision was a “genuine forensic mistake in the heat of the moment”: R v Qaumi (No 61) [2016] NSWSC 1192 at [22], [25].

Section 118 Legal advice

In Hastie Group Ltd (in liq) v Moore [2016] NSWCA 305, Beazley P and Macfarlan JA cited at [32] the following statement of the plurality in Grant v Downs (1976) 135 CLR 674; 51 ALJR 198; [1976] HCA 63 at 689 (CLR) (in relation to the common law):

… It is for the party claiming privilege to show that the documents for which the claim is made are privileged. He may succeed in achieving this objective by pointing to the nature of the documents or by evidence describing the circumstances in which they were brought into existence. But it should not be thought that the privilege is necessarily or conclusively established by resort to any verbal formula or ritual.

It was observed at [33] that “every case depends on its own facts and, as is stated by the plurality in Grant v Downs, there may be circumstances from which privilege may be established without the need for” detailed evidence. There need not be “express statements made in support of the claim for privilege. The Court is entitled to draw inferences from other proved facts” (at [34]). It was inferred that a report prepared in response to an “engagement letter”, which was itself privileged, was privileged (at [35]–[39]).

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

In Hastie Group Ltd (in liq) v Moore [2016] NSWCA 305, Beazley P and Macfarlan JA stated at [57]:

… [T]he authorities … make it plain that neither relevance to the other party’s claim nor reference by that party to a privileged document, without more, gives rise to waiver. Ordinarily there will need to be reliance on the contents of such a document.

Section 138 Exclusion of improperly or illegally obtained evidence

In R v Rapolti [2016] NSWCCA 264, it was held at [230] that “the word ‘obtained’ applies to [a] factual situation [where] material was retained as a result of an impropriety”, notwithstanding that the initial taking possession of the material was not improper. It was accepted at [223] by the NSW Court of Criminal Appeal that a factor supporting exclusion of the evidence was that the evidence could lawfully have been seized if it had first been returned before using a search warrant to cure the fact of its unlawful retention.

Dictionary “Unavailability of persons”

In respect of cl 4(1)(f) (“all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or secure his or her attendance, but without success”), in Tasmania v Dolega [2016] TASSC 65, Brett J held at [14]–[16] that delays in attempting to find two witnesses when the prosecution must have been aware that there may be a problem securing their ultimate attendance at trial meant that “all reasonable steps” had not been taken, given that “it is impossible to say that reasonable steps taken” without delay may not have been effective in securing attendance.

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