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Evidence Law Noticeboard February 2021 - Upcoming Uniform Evidence Law March Update

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Section 20 Comment on failure to give evidence

Even if a prosecutor tells the jury in final address that the defendant is not obliged to give evidence and no inference can be drawn from that fact, reference to the absence of that evidence, in the context of submissions as to there being “no evidence” to support particular matters advanced by the defence (and asking rhetorical questions that tend to suggest that absent an explanation from the defendant the jury should reach a particular conclusion) may well constitute impermissible comment, since the jury are being asked to draw inferences against the defendant in circumstances where there was no evidence of particular matters: see Gregg v The Queen [2020] NSWCCA 245 at [574]–[590].

Section 46 Leave to recall witnesses

There will be no breach of the rule in Browne v Dunn if the evidence that was not the subject of cross-examination (of prosecution witnesses) was actually adduced by the trial judge in questioning the defendant and not relied upon by the defence in final address: see NSE v Western Australia [2020] WASCA 167 at [20].

Section 55 Relevant evidence

Evidence of gunshot residue on a cap where the quality of CCTV imagery did not provide a rational basis for concluding that the cap was of the same kind as that worn by the offender: R v Crupi (Ruling No 2) [2020] VSC 656 at [42]. It was held at [85]–[88] that evidence of forensic gait analysis where an opinion was expressed as to “close similarities” between the gait of accused and the gait of shooter did not satisfy the test of relevance because there were a number of factors which may have affected the reliability of the opinion and there was no “proper basis for the jury to conclude that the accuracy of his calculations were not significantly affected by these matters” and it was not possible to determine whether the comparison was “apples with apples”.

Section 58 Inferences as to relevance

Inferences as to the authenticity of a document can be drawn from its form and contents: Gregg v The Queen [2020] NSWCCA 245, Bathurst CJ at [368], Hoeben CJ at CL agreeing at [712], Leeming JA at [714]–[716].

Section 65 Exception – criminal proceedings if maker not available

The effect of this provision is that, in a number of specified situations, first-hand hearsay in oral or documentary form is not excluded by the hearsay rule in criminal proceedings where the person who made the representation is not available to give evidence (about a fact he or she intended to assert by the representation). In Sio v The Queen (2016) 90 ALJR 963; [2016] HCA 32, the High Court explained at [57] that the focus must be on the particular representation. However, Sio should not be understood “to have stipulated that in every case the court must exhaustively list material facts and representations, irrespective of whether it is possible and sensible in the circumstances of the case to deal with certain facts and representations on a group basis”: Prasad v The Queen [2020] NSWCCA 349 at [89], see also at [92], [94]. As regards the line between events that throw light on the circumstances in which the representation was made and events that go only to the reliability of the asserted fact, it can be difficult to draw. For the purposes of the application of s 65(2)(c), the NSW Court of Criminal Appeal held in Prasad v The Queen [2020] NSWCCA 349 at [97]–[103] that a number of items of evidence, while “relevant to the complainant’s credibility when considered at the trial”, were not part of the “circumstances” in which the representations were made for the purposes of s 65(2)(c). This evidence included evidence of a motive of the declarant to give a false account and inconsistent representations by the same person. However, it must be said that they appeared to throw light on whether the circumstances in which the representations were made did “make it highly probable that” the representations were “reliable”. The court referred at [98] to a passage in Sio where the High Court observed at [71] (in applying s 65(2)(d)) that the “circumstances” in which a representation was made “may include other representations which form part of the context in which the relevant representation was made” which render that representation “demonstrably unreliable”. The Court of Criminal Appeal appears to have concluded that a circumstance will only be taken into account where it renders the representation “demonstrably unreliable”, but that gives too much significance to the form of expression adopted in the High Court judgment. It appears inapposite as a test of relevant circumstances, particularly given the requirements of s 65(2)(c). Macfarlan JA (Wilson and N Adams JJ agreeing) held at [104] that (but for one representation) there was no error in a trial judge ruling the test satisfied where a police statement was made “at a time fairly shortly after the events described, in circumstances where a cognitively impaired person was doing the best she could to explain what she said occurred to her at the hands of the accused in acts which, if true, would have been extremely upsetting for her and which would have stood out in her memory to a considerable degree” (see at [75], emphasis added), notwithstanding evidence suggesting a motive of the declarant to give a false account and inconsistent representations by the same person on other occasions. However, it is arguable that this approach fails to recognise that an important matter bearing on “reliability” is veracity.

Section 76 The opinion rule

Evidence given by the Chief Executive Officers of various companies “as to the manner in which their companies in fact conducted their business” is not opinion evidence: Gregg v The Queen [2020] NSWCCA 245 at [341].

Section 79 Exception — opinions based on specialised knowledge

  • A professor of Mechanical and Biomedical Engineering may have engineering expertise but lack expertise in the area of forensic gait comparison analysis where the subjects are recorded on CCTV footage: R v Crupi (Ruling No 1) [2020] VSC 654 at [94]–[97].
  • A general medical practitioner may not be able to express an opinion requiring specialist urological or anatomical knowledge or whether ordinary persons may perceive some part of a person’s body as “abnormal”: Denton v The Queen [2020] NSWCCA 341 at [57], [64].
  • Victorian courts continue to take the view that the trial judge should “perform the role of gatekeeper in resolving issues of scientific reliability at the threshold”: Tuite v The Queen [2020] VSCA 318 at [114].

Section 84 Exclusion of admissions influenced by violence and certain other conduct

It is clear that that conduct may have occurred prior to any relevant interview and need not have been the conduct of those interviewing the relevant party. However, if there is delay between the conduct and the making of the admission, this may support a finding that the conduct did not influence the admission or the making of the admission. If substantially the same admission was made on another occasion where there was clearly no such influence (for example, where it was volunteered), this would support a finding that the conduct did not influence the admission or the making of the admission: see Decision Restricted [2020] NSWCCA 284 at [151]–[154], [160].

Section 87 Admissions made with authority

In Plaintiff A v Bird [2020] NSWSC 1379, it was held at [28]–[30] that admissions regarding child sexual abuse made by one defendant in civil proceedings after he was arrested and interviewed by the police would be admissible against another defendant (a co-owner of the child care centre where the abuse allegedly occurred) pursuant to s 87(1)(c) because they “clearly had a common purpose in [the first defendant] successfully defending the charges, given their significance to the continued successful operation of the centre”. Assuming they did have such a common purpose, it has to be said that it is difficult to see how it could be concluded that the admissions made by the first defendant were “made … in furtherance of” that common purpose.

Section 97 The tendency rule

  • In TL v The Queen [2020] NSWCCA 265, the NSW Court of Criminal Appeal held that evidence showing a tendency to assault a particular child had significant probative value to prove that the defendant caused the death of that same child a week later (the conduct element of the offence of murder) even though it did not have significant probative value to prove that the defendant had the necessary guilty mind for murder. Even a substantial time gap between conduct contended to establish a particular tendency and an occasion when it is argued that the tendency manifested may not preclude a finding of significant probative value if there was limited opportunity for the tendency to manifest during that intervening period (compared with a case where there were numerous such opportunities and there was no evidence that the alleged tendency was manifested on those occasions): Taylor v The Queen [2020] NSWCCA 355 (Beech-Jones J, Walton J agreeing, at [146]–[148], distinguishing McPhillamy v The Queen (2018) 92 ALJR 1045; [2018] HCA 52).
  • In Larsen v Director of Public Prosecutions (Cth) [2020] VSCA 335, the defence made it clear that the only fact in issue in the trial would be the defendant’s state of awareness with respect to the age of the complainant. The Victorian Court of Appeal held, as a result, that the particular features of the sexualised conduct in which the defendant engaged would have no bearing on the assessment of probative value (at [22]) and tendency evidence (relating to sexual communications that the defendant had with a girl he knew to be 15 years old) had “very limited probative value in relation to the issue of what [the defendant] knew or believed about [the complainant’s] age” (at [30]).
  • As regards a case where the tendency evidence (resulting in an acquittal) relates to a person other than the defendant, see Director of Public Prosecutions (Vic) v Dixon (Ruling No 1) [2020] VSC 743 at [131]–[132].

Section 110 Evidence about character of accused persons on tendency evidence and coincidence evidence adduced by prosecution

Evidence of “good character” may be constituted simply by a lack of criminal convictions: Decision Restricted [2020] NSWCCA 247 at [73]–[85] (fact of allegations of criminal conduct did not alter this.

Section 117 Definitions

In R v Rogerson (No 31) [2016] NSWSC 195, it was held that the fact that a conversation intended to be confidential was monitored by prison authorities did not affect the nature of the conversation, because the monitoring was outside the control of the parties to the conversation (Bellew J at [22]–[29]). That judgment was distinguished by the Full Court of the Family Court in Meadis v Meadis [2020] FamCAFC 301, a case involving telephone conversations between a father involved in family law proceedings and his parents which they knew were being recorded by prison authorities, partly on the basis that the father was not obliged to submit to the electronic surveillance of telephone conversations because the paternal grandparents visited him in person (at [60]).

Section 120 Unrepresented parties

In Meadis v Meadis [2020] FamCAFC 301, the Full Court of the Family Court observed at [52] that conversations between a father and his children could not possibly attract the privilege because they were not for the dominant purpose of preparing for or conducting either civil or criminal proceedings – they “were merely social calls”. Conversations between the father and his parents could potentially attract the privilege but were not “confidential” (as defined in s 117) and did not have “the character of preparation for the conduct of litigation” (at [54]–[56]).

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

In GR Capital Group Pty Ltd v Xinfeng Australia International Investment Pty Ltd [2020] NSWCA 266, Macfarlan JA (McCallum JA and Simpson AJA agreeing) the NSW Court of Appeal summarised the principles in respect of the common law test of “inconsistency” at [57].

Section 137 Exclusion of prejudicial evidence in criminal proceedings

  • Probative value and importance are different concepts. Even if the item of evidence is the only evidence that is relevant to a particular fact in issue (and is, therefore, “important” in the proceeding), that does not have any bearing on its probative value. As the Victorian Court of Appeal has observed in respect of a criminal trial, “[e]vidence which is of slight probative value will not have its quality or strength enhanced simply because it is important to the prosecution case”: Volpe v The Queen [2020] VSCA 268 at [70].
  • Care must be taken in distinguishing different aspects of the expert’s evidence. For example, where an expert witness gives evidence that a drug was found in a sample, a mere possibility that the sample was contaminated would not impact on the probative value of the expert’s opinion. Since it would be open to the tribunal of fact to reject the possibility of contamination, “taking the evidence at its highest” requires an assumption that the sample was not in fact contaminated: R v Riley [2020] NSWCCA 283, Bathurst CJ at [122]. Perhaps a better way of explaining this holding is that, without making any assumptions, the mere possibility of contamination would not affect “the extent to which the evidence [of the expert] could  rationally affect the assessment of the probability of the existence of a fact in issue”, that is, on the “potential” of the evidence to prove a fact in issue (see Button J at [136]).

Section 138 Exclusion of improperly or illegally obtained evidence

  • In Director of Public Prosecutions (Vic) v Dixon (Ruling No 1) [2020] VSC 743, Kaye JA applied this provision in circumstances where the police, when interviewing a suspect, failed to inform the suspect of the offence being investigated, notwithstanding a finding that this breach, while having “potential” significance, did not have “any causative role in obtaining the evidence on which the prosecution seek to rely” (at [78]).
  • The issue of appellate review was considered in detail by Bathurst CJ in R v Riley [2020] NSWCCA 283 at [89]–[114] (in the context of an interlocutory appeal) and Bathurst CJ concluded at [112] that “were it necessary to reach a concluded view on this issue it is my opinion that recent authority, in particular SZVFW and Bauer, suggest the conclusion that appellate review of a decision to admit or reject evidence under s 138 is not subject to judicial restraint of the nature of that referred to in House v The King”. Thus Bathurst CJ, without deciding the question, tended to favour the view that the “correctness standard” adopted in Warren v Coombes (1979) 142 CLR 531; 53 ALJR 293; [1979] HCA 9, should be applied.

Section 141 Criminal proceedings – standard of proof

  • A jury is entitled to carefully consider any hypothesis advanced by the defence: see R v Abdirahman-Khalif (2020) 94 ALJR 981; [2020] HCA 36 at [78]. Nevertheless, since there is no “burden” on the defence, it is not necessary that a hypothesis consistent with innocence be advanced by the defence before it may be considered by the jury: R v Abdirahman-Khalif (2020) 94 ALJR 981; [2020] HCA 36 at [79].
  • A hypothesis consistent with innocence need not be based on direct evidence: Decision Restricted [2020] NSWCCA 256.
  • The jury should not be directed to determine whether there is “any other reasonable conclusion arising from the facts” but rather that it is for the prosecution to exclude any reasonable hypothesis or possibility beyond reasonable doubt: Gregg v The Queen [2020] NSWCCA 245 at [523].

Section 165B Delay in prosecution

In Cabot v The Queen (No 2) [2020] NSWCCA 354, it was held at [65]–[74] that it was open to a trial judge to make a factual finding based on the evidence of the complainant that the complainant did not initially complain because of threats made by the accused and to decline to give the direction on that basis.

Dictionary “Unavailability of persons”

It was held in Plaintiff A v Bird [2020] NSWSC 1379 at [83], that all reasonable steps had been taken to secure the attendance of a child to give evidence, notwithstanding that no subpoena was issued in respect of the child because the mother of the child had made it clear that it would be resisted, there was evidence that the child had no relevant memory and it was likely no court order would be made requiring the attendance of the child.

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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