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Evidence Law Noticeboard August 2021 - Upcoming Uniform Evidence Law September Update

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Section 13 Competence: lack of capacity

Where incapacity derives from cognitive impairment, it may be overcome by appropriate mechanisms including simple questions that do not involve complex propositions: see Yates v The Queen [2021] VSCA 190 at [43]–[45]. Competence to give evidence is not static or immutable, and accordingly, it is possible that a witness determined competent is "found to be non-competent at some future time in relation to a particular fact (or facts)": Yates v The Queen [2021] VSCA 190 at [46].

Section 48 Proof of contents of documents

As Priest and Sifris JJA stated in Slater v The Queen [2021] VSCA 153 at [32]:

Section 48 of the Evidence Act 2008 … provides a means for proving the contents of documents. It presupposes that the contents of the documents sought to be adduced are admissible. It does not render admissible the contents of documents which are otherwise inadmissible. It merely facilitates proof of the admissible contents of documents (the common law "best evidence" rule having been abrogated by s 51).

Section 55 Relevant evidence

  • It is not necessarily an "explanation" for a failure of a party to testify that the party had been required to submit to a compulsory examination concerning matters the subject of subsequent proceedings and the opponent had the opportunity to adduce evidence from that party: El-Debel v Micheletto [2021] FCAFC 117 at [207]–[217].
  • In Papanikolaou v The Queen [2021] NSWCCA 135, it appears to have been suggested at [40] that a direction may be given that a failure of the prosecution to call a potential witness may be taken into account in determining whether it was satisfied of the defendant's guilt beyond reasonable doubt even if the failure has been explained (see at [31]–[36]). However, that does not appear consistent with the premise in Mahmood v Western Australia (2008) 232 CLR 397; 180 A Crim R 142; [2008] HCA 1 at [27] that "the question concerns the failure of the prosecution to call a witness whom it might have been expected to call". Equally, it would be inappropriate for defence counsel to make a submission that an absence of evidence adduced in the trial actually undermines the prosecution case where such evidence had been adduced by the prosecution but excluded on the basis that it was "neutral" (that is, the evidence neither supported nor undermined the prosecution case): see KE v The Queen [2021] NSWCCA 119.
  • A problem arises where the relevance of evidence depends on the course taken by opposing parties in the proceeding. For example, evidence of expert opinion that a physical examination of a rape complainant was "consistent with" her account may not be relevant to prove guilt (where the examination was "neutral", that is, equally consistent with rape not having occurred) but may become relevant if the defence argues that the absence of such evidence undermines the prosecution case: see KE v The Queen [2021] NSWCCA 119, Garling J at [71]–[72], Beech-Jones J at [104]. If opposing counsel does not expressly "disavow" the making of such a submission, the evidence may be adduced: KE v The Queen [2021] NSWCCA 119, Beech-Jones J at [104] (see also Adams J at [122]). If opposing counsel does expressly disavow the making of such a submission, the evidence will be inadmissible. However, if opposing counsel does subsequently invite the jury to draw an inference from the absence of the evidence in question, it would be appropriate for a trial judge to intervene in the course of the counsel's submissions either to prevent such submissions being put, or else to require counsel to withdraw those which had been made: KE v The Queen [2021] NSWCCA 119.

Section 69 Exception: business records

  • The previous representation (in the document that forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business, or at any time was or formed part of such a record) must have been made or recorded in the course of, or for the purposes of, the same business to which the records belonged or which kept the records: see Maaz v Fullerton Property Pty Ltd [2021] NSWCA 79, Brereton JA at [58], [63]–[64]. Thus, Brereton JA noted at [64] that "a letter of complaint from a customer, retained by the supplier, is not an admissible business record of the supplier, because the statements in it were not made in the course of or for the purposes of the supplier’s business". Of course, it does not follow from the fact that a documentary statement is made by a person outside the business that it is not made for the purposes of the business (Brereton JA noted at [65]).
  • It is not essential to confirm the authenticity of a particular record by utilising a procedure by which a document may be obtained such as discovery, subpoenas and notices to produce: Maaz v Fullerton Property Pty Ltd [2021] NSWCA 79 at [26] ("authenticity was not in doubt").

Section 75 Exception — interlocutory proceedings

The Full Court of the Federal Court has accepted that an order permanently staying a proceeding was an interlocutory proceeding for the purposes of this provision, bearing in mind that "the decision did not finally determine the rights of the parties on the substantive issues in dispute": Hastwell v Kott Gunning [2021] FCAFC 70 at [79].

Section 76 The opinion rule

If 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, the opinion exclusionary rule does not apply. An example was provided by the Full Court of the Federal Court in Hastwell v Kott Gunning [2021] FCAFC 70 at [84], [86], [104], in respect of a psychiatric report admitted not "to prove the truth of the opinions expressed" but "for the limited purpose of supporting [a party's] case that it should be permitted to have [the plaintiff] examined so that an entirely different expert could express their own opinions". The fact that the opinions expressed in the report were held was relevant on this basis.

Section 79 Exception: opinions based on specialised knowledge

A child psychiatrist may be able to give general evidence as to the reactions and conduct of children who have been subjected to parental abuse and, in particular, in relation to the conduct and reactions of such children which might otherwise appear to be counter-intuitive or inconsistent, but generally not to give an expression of opinion concerning the particular complainant's behaviour after the alleged offending conduct (and, accordingly, could not give evidence concerning the particular reaction of the complainant as expressed in a note written by her, or as to the significance and interpretation of the note): Woods v The Queen [2021] VSCA 105 at [106]–[110].

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

  • In general, the courts have taken a broad view of the term "admission", extending it to facts inferred from words or conduct. It is common to refer to such evidence as evidence of "consciousness of guilt". There is no requirement that such conduct occur after an alleged offence – it may be relied upon as an admission even if it occurs while an alleged offence was being committed: La Rocca v The Queen [2021] NSWCCA 116 at [116].
  • In Decision restricted [2021] NSWCCA 74, it was held at [57] that an alleged lie should not have been left to the jury as supporting an inference of consciousness of guilt because there was no proper evidentiary basis to conclude it was a lie (where what was spoken about was not an objective fact but was a subjective understanding of an unusual phrase).

Section 91 Exclusion of evidence of judgments and convictions

The Full Court of the Federal Court has, on the face of it, endorsed the analysis of Brereton J in Re HIH Insurance Ltd (in liq) [2015] NSWSC 790. In Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International BV [2021] FCAFC 77, the court stated at [110]:

We agree with what Brereton J said in Re HIH Insurance at [58] and Hunt AJA in Ainsworth v Burden [2005] NSWCA 174 at [94] and [109].

It should be appreciated that it is difficult to reconcile the approach of Brereton J in Re HIH Insurance Ltd (in liq) [2015] NSWSC 790 and Hunt AJA in Ainsworth v Burden [2005] NSWCA 174. Given that the Full Court of the Federal Court ruled that s 91 did apply to the evidence of "factual findings" in that case, it would appear that the court was not in fact endorsing the very narrow view of Brereton J regarding the scope of the provision.

Section 97 The tendency rule

In La Rocca v The Queen [2021] NSWCCA 116, it was observed at [105] that there was a "tenuous connection between" tendency evidence regarding "an enquiry concerning a reducing agent which can be used (although is not generally used) in the manufacture of MDMA, when there was no suggestion (much less a charge) that the appellant was, or intended to, engage in the manufacture of MDMA" and what was sought to be proved ("a belief that particular candles contain MDMA for the purposes of an attempt possession charge").

Section 98 The coincidence rule

Evidence of two or more events may establish identity on the basis that, having regard to the similarities of the events, it is improbable that the events occurred coincidentally and involved different people: see Leonard v The Queen [2021] VSCA 172, Niall JA at [55].

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

  • In La Rocca v The Queen [2021] NSWCCA 116, where the appellant was convicted of attempting to possess a commercial quantity of MDMA contained in candles, evidence that the appellant had shown interest in the purchase of a chemical that could be used in the manufacture of MDMA was contended by the Crown not to be tendency evidence, on the basis that it showed that "the appellant had a particular state of mind (being an interest in acquiring MDMA) rather than that he had a tendency to have a particular state of mind" (at [98]). However, Adamson J (Bellew and Cavanagh JJ agreeing) held at [103] that it was tendency evidence on the basis that it was evidence of the appellant's conduct (that he had shown an interest in purchasing the chemical) "to prove that he had a particular state of mind (namely, that he knew or believed that MDMA was contained within the consignment)" by tendency reasoning, in that "the inference sought to be drawn was that because the appellant had shown an interest in sodium borohydride and purchasing it, it was more likely that he knew or believed that the candles contained MDMA". There was no reliance on "a belief system", as in Elomar v The Queen (2014) 300 FLR 323; [2014] NSWCCA 303.
  • It was observed in R v Dougas (No 2) [2021] NSWSC 682 at [63] at [63] that "[t]here is a real and significant distinction between, on the one hand, an enduring belief (such as, in Elomar, a belief in violent jihad), and, on the other hand, an intention to commit a financially-motivated crime, which is inevitably intermittent and situational".

Section 110 Evidence about character of accused persons

  • Decision restricted [2021] NSWCCA 74 at [46]–[57]: evidence of good character with respect to violence and sexual offending did not let in convictions for offences of dishonesty.
  • Decision restricted [2021] NSWCCA 113 at [66]: evidence that had never been accused of sexually assaulting a child would not let in evidence of sexual offending in respect of an adult.

Section 135 General discretion to exclude evidence

In Rogerson v The Queen [2021] NSWCCA 160, the NSW Court of Criminal Appeal held at [542]–[547] that, in the light of the approach taken by the High Court in R v Bauer (2018) 266 CLR 56; 92 ALJR 846; [2018] HCA 40 to appellate review of s 97, the appropriate standard of appellate review in respect of this provision is "the correctness standard" (that is, it is for the appellate court itself to determine the correct application of this provision and not simply to consider whether the approach taken by the trial judge was "open"). However, the court added at [548]:

It should be remembered that, in applying the correctness standard of appellate review, an appellate court may be subject to "natural limitations" that exist when such an exercise is undertaken … . These may include the lack of the advantage enjoyed by a primary judge in the opportunity to consider, and reflect upon, the entirety of the evidence as it is received at trial and to draw conclusions from that evidence, viewed as a whole… .

Section 137 General discretion to exclude evidence

The greater the danger that the evidence will have an unfairly prejudicial effect, the less likely a direction to the jury is capable of negativing that unfairly prejudicial effect: see Rogerson v The Queen [2021] NSWCCA 160 at [559].

Section 165 Unreliable evidence

Evidence may be corroborative even if it could not, on its own, prove guilt. The better question is whether the evidence of the witness is "indispensable" to a guilty verdict: see Gould v The Queen [2021] NSWCCA 92 at [132]–[137] (where the propositions that the warning need only be given where the evidence is "indispensable", and where it is "uncorroborated", appear to have been conflated).

The Evidence Law Practice Area on Westlaw offers subscribers extensive commentary on the law of evidence. Uniform Evidence Law in particular is the only service dedicated to the uniform evidence legislation, especially as the implementation of the uniform evidence law in the various jurisdictions has dramatically changed the way in which evidence law itself is structured. Expert Evidence is a highly regarded practitioner work that analyses the common law and statutory criteria in relation to the admissibility of expert evidence and is designed to provide advocacy guidance for the commissioning and management of expert witnesses. The latest caselaw, tools, annotations and support that will be made available to subscribers are essential for the preparation and presentation of cases as well as the understanding of issues of procedure critical to the resolution of disputes. The Evidence Law Noticeboard is specifically geared for specialists in the area and will deliver news items of interest and significance written and curated by in-house editors. To subscribe to the Evidence Law Practice Area on Westlaw, contact Thomson Reuters.
Stephen J Odgers SC - Barrister
By Stephen J Odgers SC

Stephen J Odgers SC BA (Hons) LLB (Hons) LLM (Columbia) is an eminent criminal law barrister specialising in the area of criminal appeals. He is the author of a number of Thomson Reuters works, including the book, Principles of Federal Criminal Law, and the subscription service, Uniform Evidence Law which forms the basis of the book, Uniform Evidence Law, now an annual publication. Mr Odgers is the General Editor of the Federal Offences subscription service, as well as co-Editor of the Criminal Law Journal, and a contributor to Laws of Australia. Since 2002, he has served as the Chair of the Criminal Law Committee of the NSW Bar Association, and in 2006 was appointed Adjunct Professor at the University of Sydney's Faculty of Law.

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