Section 10 Parliamentary privilege preserved

Where a party seeks to rely on something said or done in Parliament, and a question of parliamentary privilege is raised, a court will receive the evidence provisionally for the purpose of a temporary and conditional examination in order to enable the court to inquire whether the reception of the extract into evidence is, or is not, prohibited: Victorian Taxi Families Inc v Taxi Services Commission [2018] VSC 594 at [94].

Section 38 Unfavourable witnesses

While it would be unusual for leave to be given to a prosecutor to cross-examine a witness about conduct that is not the subject of a charge, circumstances may arise where it is appropriate: Deacon v The Queen [2018] VSCA 257 at [83]–[100]. The conduct of the defence may bear on the question of whether it is appropriate to grant leave.

Section 55 Relevant evidence

In R v Falzon (2018) 92 ALJR 701; [2018] HCA 29, the High Court (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ) upheld an appeal from the Court of Appeal of Victoria. When the police searched the respondent’s premises on 17 December 2013, they found a hydroponic facility with cannabis plants growing and plant stumps from which cannabis had already been harvested. On the same day, the police raided the applicant’s home and found $120,800 in cash secreted at various locations throughout the house, as well as various items related to the cultivation of cannabis. Initially, the applicant was charged with cultivating and trafficking cannabis “between 24 July and 17 December 2013” but this was changed to cultivating and trafficking cannabis “on 17 December 2013”. The trafficking alleged was based on possession of cannabis for the purpose of sale. The applicant admitted possession of the cannabis but told police the cannabis was for personal use (and for friends) and not for sale. On appeal, the issue was whether the evidence of the finding of the cash at the applicant’s home was relevant to the fact in issue of whether the cannabis was possessed for sale. At trial, this evidence had been admitted to show that the applicant was in the business of selling cannabis and it was held that this was relevant to the issue of whether the cannabis found on 17 December 2013 was possessed for sale. Priest and Beach JJA in the Victorian Court of Appeal held that it was not, emphasising the importance of the change made by the prosecution to the charge against the applicant. Instead of charging an offence alleging trafficking over an extended period, the charge was only in respect of the single day when the cannabis was found in the applicant’s possession. In dissent, Whelan JA held that “the fact that under an earlier indictment the prosecution had charged the applicant with trafficking over a period of time … and had then abandoned charges on that basis alleging possession for the purpose of sale on one particular day” was “not significant” because “the prosecutor did not eschew reliance on the contention that … the secreted cash [was] indicia of a drug trafficking business then being conducted” by the respondent. The High Court simply stated at [41]:

The significance which the majority attributed to the fact that the prosecution had eschewed reliance on a Giretti count was, as Whelan JA observed, misplaced.

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

In Restricted Judgment [2018] NSWCCA 127, Simpson AJA (Johnson and Harrison JJ agreeing) observed at [45] that the concept underlying the term “representation” is “that the existence of a fact or state of facts is asserted” (although (c) makes it clear that the representation need not be intended to be communicated). Not only may a representation be inferred from conduct, it is important to appreciate that accompanying conduct may shed light on what was asserted in words. As Simpson AJA emphasised at [48]–[51], words used (and whether they are capable of being regarded as asserting the existence of a fact) must be assessed in the context of the other evidence, including accompanying conduct (and other representations).

Section 81 Hearsay and opinion rules – exception for admissions and related representations

A person who becomes a party to proceedings may have made a number of previous representations on a particular occasion, some that are adverse to the person’s interest and others that are self-serving. That raises the possibility that the party may adduce evidence of the former representations as “admissions” in order to have admitted the self-serving representations pursuant to s 81(2): see, for example, Ku-ring-gai Council v Chia (No 10) [2018] NSWLEC 176. It may be doubted whether the requirements of that provision will be satisfied in such circumstances, notwithstanding that, in practice, where a prosecutor party adduces evidence of admissions that will ordinarily require that the prosecution adduce exculpating material as well (but see Ku-ring-gai Council v Chia (No 10) [2018] NSWLEC 176 at [33]-[34]. The potential applicability of s 135 would also have to be considered.

Section 87 Admissions made with authority

• On a literal reading of s 87(1), a court must admit evidence rendered admissible under this provision and the discretions to exclude evidence in Pt 3.11 would not be available. However, in Restricted Judgment [2018] NSWCCA 127, Simpson AJA (Johnson and Harrison JJ agreeing) observed that the provision only states that the court “is to admit” evidence of the representation and held at [22] that this does not mean admitted in the “substantive proceedings”. Thus, the evidence would be admitted in a voir dire (where the court would proceed on the basis that the representation is taken to be an admission by a party) to decide whether the evidence of that admission should be admitted in the trial proper (which may require consideration of such provisions as, for example, s 135 and s 137).
• Section 87(1)(c) provides that, “[f]or the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that: … (c) the representation was made by the person in furtherance of a common purpose (whether lawful or not) that the person had with the party or one or more persons including the party”. In Restricted Judgment [2018] NSWCCA 127, Simpson AJA (Johnson and Harrison JJ agreeing) held at [32] that, despite the use of the words “a common purpose” and the words in brackets (“whether lawful or not”), it is necessary that the representation have been made in furtherance of the common purpose alleged by the prosecution in the trial (that is, not a common purpose “extraneous to the proceeding”: at [33]). That analysis is contrary to the view of Greg James J in R v Watt [2000] NSWCCA 37 at [32], when he held that a previous representation made at a time outside specified dates for an alleged common purpose of drug supply was nevertheless admissible under this provision (Grove J agreeing, Hidden J dissenting). It is also a construction that is rendered implausible by the words in brackets, since the common purpose alleged by the prosecution in the trial will invariably be unlawful. It is also curious to focus on the “prosecution” case, since s 87(1)(c) is not limited in its application to criminal proceedings. Simpson AJA proceeded to observe at [33] that, even if it is wrong to construe the provision as requiring the common purpose referred to in s 87(1)(c) to be the common purpose alleged in the trial, “it is difficult to see how a representation made by a person in furtherance of a common purpose extraneous to the proceeding could pass the relevance test”. In R v May (No 2) [2008] NSWSC 595, Rothman J made a similar point, stating that, “in most cases … the existence of another uncharged common purpose (and representations made in furtherance thereof)” are “not relevant to, and would be excluded from, proceedings in relation to the charge before the Court” (at [26]). However, strictly speaking, it is only the representation that must be relevant to a fact in issue and it is certainly possible that a representation in furtherance of a common purpose that is not relevant to a fact in issue will itself be relevant to a fact in issue. It was held that it was reasonably open to find that the required “common purpose” existed in a case where it was the prosecution case that A intended to sell drugs to B and B intended to buy the drugs from A. While the trial judge had not been satisfied that, in these circumstances, there was a “common purpose”, Simpson AJA (Johnson and Harrison JJ agreeing) held at [34]–[36] that the seller and buyer of drugs do have a common purpose: “completion of a transaction pursuant to which property is passed from one to the other”.

Section 90 Discretion to exclude admissions

There is no doubt that, as under the common law, one purpose of the discretion is the protection of the rights and privileges, including procedural rights, of the defendant: Haines v The Queen [2018] NSWCCA 269 at [271]. The unfairness associated with the use of an admission might extend to forensic disadvantages that a defendant might suffer at trial.

Section 97 The tendency rule

• In R v Falzon (2018) 92 ALJR 701; [2018] HCA 29, the High Court emphasised that, while the evidence of the finding of the large amounts of cash at the respondent’s home did support a tendency inference that the respondent had made previous sales of drugs and, therefore, “was the sort of person who was more likely to commit” the offence charged (at [45]), the prosecution did not seek to use the evidence in that way (at [42]).
• In McPhillamy v The Queen (2018) 92 ALJR 1045; [2018] HCA 52, Kiefel CJ, Bell, Keane and Nettle JJ held that tendency evidence relating to sexual misconduct with persons other than the complainant was “not capable of affecting the assessment of the likelihood that the appellant committed the offences against [the complainant] to a significant extent” (at [32]). The High Court emphasized that the tendency evidence did tend to establish an enduring tendency to have a sexual interest in young teenage boys (a tendency “to have a particular state of mind” that “is likely to be enduring”: Kiefel CJ, Bell, Keane and Nettle JJ at [26]) but such a state of mind was unlikely to have significant probative value to prove that the appellant acted on it. Establishing a tendency to act on such a state of mind may well have significant probative value but the decade between the events founding the tendency and the alleged offending reduced the strength of that tendency inference. It was observed at [31] that “where … the tendency evidence relates to sexual misconduct with a person or persons other than the complainant, it will usually be necessary to identify some feature of the other sexual misconduct and the alleged offending which serves to link the two together”.
• In Anthony v Morton [2018] NSWSC 1884, Ward CJ in Eq observed at [336]: “[w]hilst one might quite naturally speak of a tendency to make representations, it is a less likely proposition that a person might have a tendency to enter into particular contracts. Of course, that is not to say it is an impossible proposition, but it is less readily accepted, as a matter of ordinary common sense. A high level of similarity or coincidence in timing would seem to be called for in order to establish that such a tendency has significant probative value”. Ward CJ in Eq observed that particular contracts between an agent and authors had limited probative value in the absence of “knowledge of how many other authors there are for whom” the agent has acted over the years. The probative value of particular contracts between an agent and authors would have been greater if they were made within a period of a few weeks rather than over a number of years.
• In Director of Public Prosecutions (NSW) v RDT [2018] NSWCCA 293, Basten JA held at [24] that, post-Bauer, the “correctness standard” for appellate review should apply to interlocutory appeals. However, the other two members of the Court, Johnson and RA Hulme JJ, considered it unnecessary to determine the question.

Section 98 The coincidence rule

• In Haines v The Queen [2018] NSWCCA 269, the NSW Court of Criminal Appeal observed at [236]:

  In a case where the Crown relies upon an accused’s motive to commit an offence and the opportunity to do so, consideration of the probability of the coincidence that an alternative suspect committed the offence often arises. … [That is] not to employ reasoning of the type envisaged by s 98.

• In Davis v The Queen [2018] NSWCCA 277 at [85]–[93], the coincidental nature of three deaths involving injections of insulin allowed the inference to be drawn that the offences were committed by the same offender; and circumstantial evidence established the defendant to be that one offender.

Section 101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution

• In Director of Public Prosecutions (ACT) v DL [2018] ACTCA 61, the ACT Court of Appeal accepted that the expression “any prejudicial effect it may have on the defendant” is not limited to the “risk that the jury will misuse evidence in some unfair way in the trial” (at [34]). Rather, it is “apt to encompass some aspects of a fair trial” (at [30]) and “may include procedural disadvantage flowing from the admission of that evidence in a given case” (at [34]). While it would not be appropriate to take into account the effect that the use of the tendency evidence against the defendant in the proceeding may have on the defendant in other proceedings (at [41]), a “forensic disadvantage” might be in the defendant’s “capacity to meet the actual evidence for an extraneous reason” (at [38]). Examples could include critical witnesses having died and evidence having been destroyed.

• In R v Falzon (2018) 92 ALJR 701; [2018] HCA 29, a case where the respondent was found in possession of drugs and charged with possession with intent to sell the drugs, evidence that a large amount of cash was found in one of the respondent’s homes was not tendency evidence because the purpose of its admission was not to establish that he was the sort of person who was disposed to commit acts of trafficking but rather to establish that he was in fact carrying on a business of trafficking and, therefore, his purpose in possessing the drugs was the purpose of sale. While the evidence did tend to show that the respondent had engaged in prior drug trafficking, the High Court (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ) held at [45]:

  [T]he likelihood of the jury improperly reasoning from the evidence of the respondent’s possession of the cash that, because the respondent had committed past acts of trafficking, he was the sort of person who was more likely to commit those charged, was minimal; especially given that the trial judge specifically directed the jury that they were not to think that because a person breaks the law in one instance, he is likely to break the law in another.

Section 108A Admissibility of evidence of credibility of person who has made a previous representation

Very brief reference was made to this provision by the Victorian Court of Appeal in Howard v The Queen [2018] VSCA 273 at [50] fn 21. It was emphasised that the provision only has work to do where a “previous representation” by a person has been admitted in the proceeding. Curiously, it appears to have been assumed that where the provision does have work to do that “credibility evidence” may be admitted notwithstanding that it might also properly be characterised as “opinion evidence”. It is suggested that that would be erroneous and that, if the evidence falls within the scope of s 76 then the provisions of Pt 3.3 would apply – even if the evidence also falls within the definition of “credibility evidence” in s 101A.

Section 114 Exclusion of visual identification evidence

In Victoria, the Victoria Police Manual provides guidelines concerning identification procedures: see Cope v The Queen [2018] VSCA 261 at [37]–[40].

Section 125 Loss of client legal privilege – misconduct

In Stanizzo v New South Wales [2018] NSWSC 2003, Rothman J held at [66] that s 125(1)(a) does not require the client or the lawyer to be involved in the commission of the fraud, etc.

Section 130 Exclusion of evidence of matters of state

In AB (a Pseudonym) v CD (a Pseudonym) (2018) 93 ALJR 59; [2018] HCA 58, the High Court noted at [12]:

Generally speaking, it is of the utmost importance that assurances of anonymity of the kind that were given to [the informer] are honoured. If they were not, informers could not be protected and persons would be unwilling to provide information to the police which may assist in the prosecution of offenders. That is why police informer anonymity is ordinarily protected by public interest immunity.

However, the High Court concluded in that case that there was “a greater public interest in disclosure to which the public interest in informer anonymity must yield”.

Section 136 General discretion to limit use of evidence

As regards “use rules” other than the hearsay rule and the opinion rule, it would rarely be appropriate for this provision to have application. For example, if evidence is sought to be used for tendency reasoning, s 97 (and, in some circumstances, s 101(2)) will determine whether that use is permissible. If those provisions do not prevent that use, it is difficult to imagine any circumstances in which this provision might appropriately be utilised to prohibit that use. If one or other of those provisions operates to prohibit that use, there would be no need for a ruling pursuant to this provision. The tendency use is prohibited and, in contrast with the hearsay and opinion rules, there is no provision reversing that provision where the evidence is relevant and admitted for another purpose. Section 95 makes that position clear beyond doubt. It follows that the High Court in R v Falzon (2018) 92 ALJR 701; [2018] HCA 29 was proceeding under a misapprehension when it observed at [46] that a “trial judge was not required to make” an order under this provision limiting the use of evidence disclosing prior criminality on the part of the respondent “unless defence counsel applied for it”. The better analysis is that, since the prosecution did not attempt to satisfy the requirements of s 97, the evidence was prohibited from being used for tendency reasoning and there would be no occasion to make an order under this provision regardless of the position taken by defence counsel.

Section 137 Exclusion of prejudicial evidence in criminal proceedings

• Where the prosecution adduces evidence that the defendant was in possession of items that disclose a criminal propensity, that will create a danger of unfair prejudice even if the items could have been used in the commission of the offence charged (the evidence is not caught by s 97 because it is not being used to prove a tendency). However, it may be that, in the particular circumstances of the case, the probative value of such evidence is high and the danger of unfair prejudice low. In R v Falzon (2018) 92 ALJR 701; [2018] HCA 29, the High Court (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ) held that, where the respondent was found in possession of drugs and charged with possession with intent to sell the drugs, evidence that a large amount of cash was found in one of the respondent’s homes was not tendency evidence because the purpose of its admission was not to establish that he was the sort of person who was disposed to commit acts of trafficking but rather to establish that he was in fact carrying on a business of trafficking and, therefore, his purpose in possessing the drugs was the purpose of sale. The High Court considered at [45] that the probative value of the evidence was “high” and “the likelihood of the jury improperly reasoning from the evidence of the respondent’s possession of the cash that, because the respondent had committed past acts of trafficking, he was the sort of person who was more likely to commit those charged” was “minimal”.

• In Johnson v The Queen (2018) 92 ALJR 1018; [2018] HCA 48, the High Court considered that it should be accepted that a jury acted on directions limiting the use that could be made of certain prejudicial “uncharged act” evidence (see at [61]). There is a suggestion in this judgment, dealing with a South Australian statutory provision that requires a balancing of “probative value” of certain “uncharged act” evidence and “any prejudicial effect it may have on the defendant”, that procedural considerations (such as delay) can only result in such “prejudice” where they increase the risk of “improper” use of the evidence by the tribunal of fact:

  The appellant contends that, in this case, there was a special risk of prejudice because of the effluxion of time since the alleged offending. But that cannot be so unless the effluxion of time somehow made it more likely that the jury would reason improperly from the uncharged act evidence to a conclusion of guilt. And logically there is no reason to suppose that the jury would do so. There is nothing about the effluxion of time or the forensic difficulties which it imposed on the appellant that conceivably could cause a jury to reason improperly to guilt.

  It is not apparent why the term “prejudice” in the South Australian provision was understood to be limited to improper use by the tribunal of fact. It remains to be seen whether this rather narrow approach to “prejudice” will be adopted in respect of this provision (and other similar provisions in this Act).

• If the defence deliberately choose not to explore in detail a witness’s assertion of lack of memory regarding matters the subject of previous representations admitted into evidence, that will undermine a contention that the defence was unfairly prejudiced by forensic disadvantages arising from that “memory loss”: Solis v The Queen [2018] VSCA 275 at [86]. Such a forensic choice (designed to obtain a forensic advantage) may, in turn, diminish the risk that the jury would attach undue weight to the previous representations as a result of not having seen them tested: Solis v The Queen [2018] VSCA 275 at [87].

Section 138 Exclusion of improperly or illegally obtained evidence

Note should be taken of the observations of Kiefel CJ, Bell and Nettle JJ in Strickland (A Pseudonym) v Commonwealth Director of Public Prosecutions (2018) 93 ALJR 1; [2018] HCA 53 (a case involving an application for a permanent stay of proceedings as a result of unlawfully compelled interrogations of the accused) at [100]:

No doubt, society and therefore the law ordinarily looks more askance on instances of deliberate or advertent reckless disregard of a duty or obligation than upon the accidents of incompetence. As a rule, the former are conceived of as entailing greater moral culpability and for that reason their condonation is conceived of as more likely to bring the administration of justice into disrepute. But ultimately it is a question of degree which substantially depends upon the nature of the duty or obligation. If a duty or obligation is of no more than peripheral significance, condonation of its breach, even of an intentional breach, may appear justified in the interests of relatively more pressing considerations of justice. The power to stay proceedings is not available to cure venial irregularities. But if, as here, the duty or obligation is of a kind that goes to the very root of the administration of justice, condonation of its breach will bring the administration of justice into disrepute regardless of the culprit's mentality.

Section 141 Criminal proceedings – standard of proof

• In Adams v The Queen [2018] NSWCCA 303, Campbell J observed in a case where DNA was not logically indispensable to a verdict of guilty that the jury should have been directed that “they could only convict on the basis of the DNA evidence if they were satisfied beyond reasonable doubt that” the defendant’s guilt “was the only rational inference that could be drawn from the whole of the circumstances actually established to the jury’s satisfaction by evidence they accepted” (emphasis added).
• Where the burden of proof rests on the prosecution, the fact that the defence adduces evidence in respect of that issue does not change the applicable standard of proof resting on the prosecution (thus, there is no requirement that the evidence adduced by the defence prove anything, even to the civil standard): see Restricted Judgment [2018] NSWCCA 246 at [55]–[62].

Section 165 Unreliable evidence

A category of evidence that may generally not fall within the scope of this provision is evidence in respect of which a party suffers a forensic disadvantage in relation to the evidence such as absence of opportunity to cross-examine. Such a disadvantage may require exclusion under Pt 3.11 but there is Victorian authority suggesting that if the evidence is not excluded, the appropriate direction would be with respect to the forensic disadvantage: see Solis v The Queen [2018] VSCA 275 at [96]. However, that authority is with respect to the Victorian provision in the Jury Directions Act 2015 (s 32), which does not include an explicit reference to hearsay evidence and in the context of a forensic disadvantage warning provision that is broader than under this Act.

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