Section 55 Relevant evidence

The subsequent occurrence of an act, state of mind or state of affairs may justify an inference that an act was done, or that the state of mind or affairs previously existed (thus, evidence that a defendant manifested awareness of the age of a complainant may permit an inference that the defendant had that knowledge a few days earlier): Mura v The Queen [2021] NSWCCA 240 at [54]–[57].

Section 65 Exception — criminal proceedings if maker not available

The view that the test in s 65(2)(b) of whether the circumstances “make it unlikely that the representation is a fabrication” is directed towards the unlikelihood of deliberate concoction not the unlikelihood of honest mistake has been accepted by the Victorian Court of Appeal: Thomas v Director of Public Prosecutions (Vic) [2021] VSCA 269 at [24]–[25]. It was noted that the absence of an obligation to tell the truth will certainly not preclude a finding that the circumstances in which the representation was made make it unlikely that it was a fabrication.  As the Victorian Court of Appeal observed at [51], that will commonly be the case in relation to statements to which this hearsay exception applies.

Section 76 The opinion rule

Records of date from water gauges “does not involve the officer forming an opinion, forming a conclusion, or making a judgment by applying a process of reasoning from facts which have been observed”: Harris v WaterNSW  [2021] NSWCCA 184 at [183].

Section 98 The coincidence rule

Mere reliance on contended similarities in events or the circumstances in which they occurred will not make such evidence “coincidence evidence” to which the “coincidence rule” applies unless there is reliance on the improbability of “coincidence”. In Parker v The Queen [2020] NSWCCA 206, it was held that, while “[m]any of the events were similar and that is certainly what the Crown relied upon” (at [77]), “the Crown did not rely upon such similarities to establish anything by way of improbability of coincidence reasoning” (at [78]). Special leave to appeal to the High Court was refused on the basis that this analysis was “clearly correct”: Parker v The Queen [2021] HCATrans 150.

Section 128A Privilege in respect of self-incrimination — exception for certain orders etc

In Deputy Commissioner of Taxation v Shi (2021) 95 ALJR 634; [2021] HCA 22, Kiefel CJ, Gageler and Gleeson JJ stated at [7]:

For the court then to find under s 128A(4) that there are reasonable grounds for the objection taken, the court must be satisfied on the evidence before it that there is a legal and factual foundation for the objection that is sufficient for the court itself to conclude that the objection is reasonably maintained at the time the court makes its decision. [footnote not included]

Kiefel CJ, Gageler and Gleeson JJ held at [8] that, if the objecting party has satisfied the court that the s 128A(4) claim is reasonably maintained on the basis that the information may tend to prove that the person “has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country”, that will necessarily mean that the court will be unable to be satisfied of the negative proposition in s 128A(6)(b). Conversely, if the objecting party has not advanced such a claim for the purposes of s 128A(4), Kiefel CJ, Gageler and Gleeson JJ held at [9]:

The omission of any such basis for the objection set out in the separate affidavit filed and served in accordance with s 128A(2)(e) is a sufficient evidentiary foundation for the court, in the absence of evidence to the contrary, to be satisfied of the negative proposition in s 128A(6)(b).

Kiefel CJ, Gageler and Gleeson JJ stated at [11]:

The inquiry mandated by s 128A(6)(c) as to the interests of justice proceeds on the premise that, as part of or in connection with an extant freezing or search order in a civil proceeding, there is an extant disclosure order operating to require provision of the information. No part of the inquiry is to question whether information required to be provided in compliance with that extant disclosure order would more appropriately be obtained through invocation of some other compulsory process.

Accordingly, the plurality held that the majority in the Full Court of the Federal Court had erred in taking into account the possibility of the party seeking the information obtaining it by the invocation of some other compulsory process (see also Gordon J at [42]). As regards the potential detriment to the person that arises from the tendency of the information to prove that the person has committed an offence against or arising under, or is liable to a civil penalty under, an Australian law, Kiefel CJ, Gageler and Gleeson JJ observed at [12] that “[a] court assessing that potential detriment must obviously take into account the prohibition in s 128A(8)) on derivative use of the information disclosed” (see also Gordon J at [44]). Further, Kiefel CJ, Gageler and Gleeson JJ stated at [12]:

A court assessing that potential detriment must also take account of constraints on the use and dissemination of the disclosed information that arise within the context of the civil proceeding in which the disclosure order has been made. Those constraints include the obligation of the party to whom disclosure is made, and of any other person to whom the disclosed information might be given, not to make any use of the information other than for the purpose of the civil proceeding without leave of the court. They include too the availability of orders restricting the dissemination of the disclosed information.

Section 141 Criminal proceedings — standard of proof

Evidence adduced by the defence is not exhausted in its effect just because the tribunal of fact is not prepared to conclude that it is truthful and accurate and, even if the evidence is “doubtful”, it may nevertheless raise a reasonable doubt: see R v Ogunseye [2021] QCA 192 at [16].

Section 147 Documents produced by processes, machines and other devices in the course of business

For an example of the application of this provision, see Harris v WaterNSW  [2021] NSWCCA 184 at [184]–[190].

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