Section 55 Relevant evidence

• In Langford v Tasmania [2018] TASCCA 1, Brett J (Blow CJ and Wood J agreeing) stated at [40]:

Of course, it is possible to envisage a case in which the failure to prove the underlying assumptions impacts on the admissibility of an opinion. It must, of course, be possible that an opinion completely unrelated to proved facts may be so hypothetical that it simply does not satisfy the test of relevance contained in s 55 of the Act, in that it could not rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding.

• Evidence that the defendant’s fingerprints were found on several pages of manual containing instructions for building a machine gun could be used to infer an interest in the content of the manual and a specific interest in firearms, and then to deciding whether to reject his denials of knowledge of the presence of certain guns (not machine guns) in his garage: Strachan v The Queen [2017] NSWCCA 322 at [19].
• If the parole evidence rule (a rule of substantive law) operates to render evidence not relevant, that may be seen as the consequence of the operation of that rule on what facts are in issue and thus the application of this provision (which refers to “evidence that … could rationally affect … the probability of the existence of a fact in issue in the proceeding): see discussion in Cherry v Steele-Park [2017] NSWCA 295.

Section 76 The opinion rule

In Pfizer Ireland Pharmaceuticals v Samsung Bioepis AU Pty Ltd [2017] FCAFC 193, Perram J at [152] gave the following example of evidence to which this provision does not apply because the evidence of an opinion is not adduced to prove the existence of a fact about the existence of which the opinion was expressed, but adduced for some other purpose:

… For example, a statutory power of a Minister may be made contingent on the existence of a particular opinion held by the Minister or a question may arise in employment litigation as to whether an employee was dismissed because the employer held a particular opinion about the employee. In both cases, the fact to be proved is the mental state of a person consisting of an opinion, but it is the fact of the opinion, and not the opinion as fact, which is being proved in such circumstances. Consequently, and in an orthodox fashion, s 76(1) is not engaged.

Section 79 Exception — opinions based on specialised knowledge

• In Langford v Tasmania [2018] TASCCA 1, Brett J (Blow CJ and Wood J agreeing) stated at [38]:

The effect of the plurality’s reasoning [in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; 85 ALJR 694; [2011] HCA 21] is that evidence of an opinion is admissible if the requirements of the section are satisfied and the connection between the witness’s opinion and his specialised knowledge, as it applies to the assumed facts is demonstrated on the evidence. The factual assumptions must therefore be stated and their relationship to the opinion explained, but they need not necessarily be independently proved. The failure to prove facts upon which the expert has relied to form the opinion will therefore not affect the application of s 79 to the evidence, and hence unless the evidence is excluded for another reason, it will be admissible.

Another reason may be that the evidence fails to meet the test of relevance (Brett J at [40]) or that discretionary exclusion is justified, pursuant to a provision in Pt 3.10 (Brett J at [42]).

• Where an expert witness asserts that he or she holds to (or “adopts”) all the opinions in a joint report (or, indeed, to any particular opinion in the joint report), there is a danger of “compromised opinion”. In BrisConnections Finance Pty Ltd v Arup Pty Ltd [2017] FCA 1268, Lee J stated at [48]:

It is evident that there is a need to work out where licit delegation, consultation and testing ends, and where inappropriate compromise of opinions begins. There is a danger in generalising and using labels, but I will use the term “compromised opinions” to mean opinions reached as a result of decision to “adopt” an opinion, which opinion is not the result of an application of the specialised knowledge of a proposed witness, but as a result of a compromise between the proposed witness and another. This is to be contrasted with an opinion which is the result of an application of the specialised knowledge of a proposed witness, but is reached following discussion and debate between the expert and another (even if the tentative or preliminary view of the expert is refined or changed by that discussion and debate, and involves, as a matter of fact, a consensus emerging, by reason of that process, between the initial view of the expert and the view of another). The former is an abdication of the expert’s responsibility to form an opinion by reason of the application of the expert’s specialised knowledge; the latter is a faithful discharge of the expert’s responsibility to test and refine the expert’s views and come to a considered opinion based on the expert’s specialised knowledge, even though it may involve embracing a final view which may not have been initially evident. Subject to how the opinion is expressed, the latter is admissible while the former is not.

Of course, deficiencies in expression may be cured by additional evidence. As Lee J observed at [50], “if the opinion is properly formed, there is no reason why deficient expression cannot be cured by additional evidence on the voir dire or in chief (subject to considerations of case management)”. Further, Lee J added at [53] that there

… needs to be some recognition of the reality of complex litigation here: any expert report in an arcane area of specialised knowledge, which requires analysis of a very large volume of primary data in order to form an opinion, is likely to be, in a literal and practical sense, a collaborative effort. Provided the expert’s mind is applied to the analysis and reasoning processes which those working with the expert have developed, so that when the report is finalised it is apparent that the whole of the reasoning and conclusions it contains has been “adopted” as the expert’s own reasoning and conclusions (as the process was explained by Austin J in Rich), even if this causes the expert’s initial or tentative views to change, there is no difficulty.

•    In Langford v Tasmania [2018] TASCCA 1, Brett J in the Tasmanian Court of Criminal Appeal observed at [55] that “[a] strict application” of the observations in IMM v The Queen (2016) 257 CLR 300; 90 ALJR 529; [2016] HCA 14 “would suggest that the failure to establish the facts upon which the opinion is based will not affect the assessment of probative value for the purposes of ss 135 or 137” but then noted at [56] that the discussion of “weak identification evidence” in the plurality judgment was “somewhat difficult to reconcile” with that approach, suggesting that “unproved or discredited assumptions which form the basis of an opinion would be relevant to the assessment of the probative value of that opinion”. The court did not need to resolve the issue.

Section 97 The tendency rule

• Tendency evidence need only have significant probative value with respect to “a fact in issue”. It certainly is not required to have significant value with respect to all the facts in issue in the proceeding: see, for example, Armstrong v The Queen [2017] NSWCCA 323 at [19]–[20].
• In Davis v The Queen [2017] NSWCCA 257, the NSW Court of Criminal Appeal held that evidence that X had prior convictions for supplying drugs (where it was the defence case that X could have possessed drugs found at the home of the defendant) was not tendency evidence but “evidence directly relevant to the critical issue in the trial which was whether the Crown had established beyond reasonable doubt that the [defendant] was in possession of the drugs” (Price J at [97]).
• Evidence that the defendant’s fingerprints were found on several pages of a manual containing instructions for building a machine gun is not tendency evidence where the evidence is used to infer an interest in the content of the manual and a specific interest in firearms, and then to deciding whether to reject his denials of knowledge of the presence of certain guns (not machine guns) in his garage: Strachan v The Queen [2017] NSWCCA 322 at [21]–[22].
• In Dunn v The Queen [2017] VSCA 371, the Victorian Court of Appeal relied on a pre-Evidence Act 1995 judgment of the High Court to support a ruling that evidence that a defendant charged with trafficking drugs in 2014 (where the defence account was that he knew nothing of the drugs found on his property) had been present on a property with a clandestine drug laboratory drugs in 2001 was not tendency evidence or coincidence evidence but rather “to rebut a defence of innocent association” (at [33]).
• In R v Fleming [2017] SASCFC 135, a judgment of the South Australian Court of Criminal Appeal applying the common law, Peek J at [34] discussed the danger of bootstraps reasoning in the context of an argument that evidence is not “tendency evidence” because it is evidence of conduct that forms a part of a relevant transaction. The danger is that it may be assumed that the defendant is guilty of the offence charged in order to conclude that two or more events formed part of a “transaction”. As Peek J stated at [40], if that assumption is necessary to be made to find “a connected series of events” or “one transaction”, then tendency reasoning will be the true basis for the inference of guilt.

Section 98 The coincidence rule

Evidence of similarities in what was said, and when it was said, by a number of shop stewards relied on to support an inference that the union of which they were members gave a particular instruction was “coincidence evidence” to which the requirements of this provision applied: Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union (No 2) [2017] FCA 1191 at [121].

Section 133 Court may inspect etc. documents

• The power to inspect can be used as a substitute for admissible evidence to establish privilege – although whether or not to exercise the power to inspect depends on the circumstances of the particular case: Mortgage Results Pty Ltd v Millsave Holdings Pty Ltd [2017] VSC 704, Derham AsJ at [25]–[26], [66]–[75].
• In Hancock v Rinehart [2016] NSWSC 12, Brereton J held that it would not be appropriate to exercise the power conferred under this provision where the purpose of inspection was to facilitate proof by a claimant of the facts required to sustain the claim, rather than to provide a means of enabling a claim to be scrutinised and tested.
• In Mortgage Results Pty Ltd v Millsave Holdings Pty Ltd [2017] VSC 704, Derham AsJ expressed the same view at [68] but the primary reason advanced for not exercising the power was that it would involve “delegating to the Court the task” of establishing the factual basis for the claim of privilege “and doing so in a way that is unfair to the [opponent], which is deprived of any opportunity to test the asserted [factual basis]” (at [73]).
• In contrast, the Full Court of the Federal Court accepted in a case under the common law that “we should not be hesitant to exercise the power to examine documents to resolve a privilege dispute” and that the trial judge had erred in not examining the documents: Perazzoli v BankSA [2017] FCAFC 204 at [24], [28], [104].

Section 136 General discretion to limit use of evidence

• In Huon Aquaculture Group Ltd v Secretary, Department of Primary Industries, Parks, Water and Environment [2017] FCA 1615, Kerr J considered at [38] that there should not be an “automatic application of s 136” to evidence of opinions to which s 77 applied, but also held at [42] that there was “a danger that it would be unfairly prejudicial to the respondent parties and productive of confusion were I not to limit the use of evidence to exclude, in so far as any opinions are expressed …, to establish as an objective fact” a matter that was a fact in issue in the proceeding.
• In Langford v Tasmania [2018] TASCCA 1, the Tasmanian Court of Criminal Appeal noted at [30] that the trial judge had utilised this provision:

In limiting the jury’s use of the evidence in this way, his Honour was utilising the provisions of s 136 of the Act. This was appropriate because the evidence of the representations of the Toyota representatives, having been admitted to establish the basis upon which Mr Catterall formed his opinion, was then otherwise able to be used for a hearsay purpose, that is to prove the truth of the facts intended to be asserted by the representation: the Act, s 60. It would have clearly been unfair to the appellant to permit the jury to use Mr Catterall’s recitation of what he was told to prove the truth of the facts thereby asserted, when the prosecution had simply failed without explanation to call those witnesses, and they were not identified by Mr Catterall.

Section 137 Exclusion of prejudicial evidence in criminal proceedings

It may also be appropriate to consider other evidence that is not before the tribunal of fact that bears on the question of whether there is a danger of the evidence in question being given more weight than it should have. In Langford v Tasmania [2018] TASCCA 1, the Tasmanian Court of Criminal Appeal considered the danger of “unfair prejudice” in relation to certain expert evidence, where “the risk of misuse arises from the possibility that the jury may not have properly factored into its assessment of the weight of [the expert’s] opinion, the impact upon it of the absence of proof of” certain hearsay information that the expert took into account in forming his opinion (Brett J at [59]). In evidence adduced in the voir dire to determine whether the opinion evidence should be admitted, it was established that the hearsay information “had little effect on the formation of his final opinion”, which meant that “[t]he trial judge was therefore entitled to conclude that any risk that the jury might assume the truth of the [hearsay] information would have little impact in their overall assessment of the importance of the opinion evidence of [the expert] because, whether the evidence was true or not, [it] ultimately had little importance in the formation of his opinion” (Brett J at [61]).

Section 138 Exclusion of improperly or illegally obtained evidence

In Director of Public Prosecutions (Cth) v Larson [2017] VSCA 292, the Victorian Court of Appeal empasised at [63] that considering “the fact that the evidence was obtained without any knowledge or realisation that the conduct in obtaining it was improper or contrary to the Act” (along with the probative value of the evidence and the serious nature of the alleged offending), holding that exclusion was not desirable, notwithstanding that the particular breaches were “systematic, significant and concerning”.

Section 165B Delay in prosecution

• As regards the meaning of the word “delay”, there is no doubt that this provision originated from common law authority with respect to lengthy delay in the reporting of alleged offences. However, the provision is not explicitly limited in that way. Nevertheless, in Robbins v The Queen [2017] VSCA 288 at [205] the Victorian Court of Appeal observed in respect of a similar provision in the Jury Directions Act 2015 that:

a failure to make an immediate complaint, the relevant delay being measured in hours or minutes, is not a “delay” of the kind addressed in [that provision].

The justification for this view advanced by the court was that, if it were characterised as “delay”, a direction to the jury “would be required in any case where there is a delay sufficient to preclude an immediate medical examination of the victim and the alleged offender or an immediate forensic investigation of the alleged place where the offending occurred” and the court did not accept that the provision “creates that position”.

• In Binns v The Queen [2017] NSWCCA 280, Basten JA (Hulme and Garling JJ agreeing) stated at [21]:

[T]he concept of “delay” involves a departure from a time period which would be expected or might be considered reasonable in the circumstances.

This analysis is questionable. It is true that, historically, the view was taken that “delay between the alleged offence and its being reported” (s 165B(6)(a)) could tend to undermine the credibility of the complainant and, in those circumstances, it was relevant to consider whether or not lapse of time was reasonable in all the circumstances. If the lapse of time was reasonable, it would not undermine the credibility of the complainant. It might even be appropriate to conclude that there was no “delay”. However, this provision is not concerned with assessment of the credibility of a complainant. It is concerned with forensic disadvantage to a defendant. In that context, it is difficult to see the relevance of the reasons for the lapse of time, unless they impact on the question of whether there is a “good reason” for not giving a direction under this provision pursuant to s 165B(3).

• In Binns v The Queen [2017] NSWCCA 280, Basten JA (Hulme and Garling JJ agreeing) stated at [22] that “the kind of disadvantage to which the section was directed” would not be suffered by a defendant where “there is no basis for knowing whether the evidence would be inculpatory or exculpatory”. It is suggested that this analysis is erroneous. A provision such as this would have little or no work to do if such a requirement were imposed – the defence would rarely be able to demonstrate that lost evidence would have been exculpatory. Indeed, in those rare cases where it is possible to demonstrate that the lost evidence would have been exculpatory, it is likely that this Act would permit evidence of that to be admitted, negating any need for a warning even in that case. It is the loss of evidence that may have been exculpatory as a result of delay that supports the giving of a warning under this provision.