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Evidence Law Noticeboard May 2021 - Upcoming Uniform Evidence Law June Update

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Section 4 Courts and proceedings to which Act applies

As regards an examination conducted by a Registrar of the Federal Court, exercising the power conferred under the Federal Court Rules 2011 (Cth) to examine a taxpayer with respect to satisfaction of a judgment against the taxpayer in relation to unpaid tax liabilities, it was held in Deputy Commissioner of Taxation v Gould [2020] FCA 337 at [8] by Davies J that "the reasoning of Allsop J [Griffin v Pantzer (2004) 137 FCR 209; 207 ALR 169; [2004] FCAFC 113] is not apt to an examination conducted pursuant to an order for examination by a judgment creditor entitled to enforce a judgment". Since an examination by a judgment creditor of a judgment debtor is conducted in inter partes litigation where the purpose is to ascertain the judgment debtor's capacity to satisfy the judgment debt, "[t]he examination is a proceeding in which it can be said that it is intended that evidence be adduced from the judgment debtor as an aid to enforcement of the judgment debt".

Section 16 Competence and compellability: judges and jurors

In Springs v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 197, Perram J held at [55] that members of the Administrative Appeals Tribunal can be compelled to give evidence about a proceeding before them provided leave is granted, since an "Australian or overseas proceeding" is defined in the Dictionary to include a proceeding in an "Australian court". The expression "Australian court" is in turn defined in very broad terms to include, by subcl (e) of the definition, "a person or body authorised by an Australian law … to hear, receive and examine evidence" and a "judge" is defined to be the "judge, magistrate or other person" before whom the proceeding is being held. Perram J concluded at [60] that "[i]t must follow therefore that, provided leave is first obtained under s 16(2), a party may administer an interrogatory to a Tribunal member about their process of reasoning in a review application (and, if necessary, obtain discovery)". Alternatively, "it remains possible, with a grant of leave under s 16(2), to subpoena the Tribunal member to testify" (at [62]).

Section 26 Court's control over questioning of witnesses

In ABR v The Queen [2020] NSWCCA 33, it was held at [79] that this provision permitted a trial judge to allow a child witness to give evidence by pointing to "answer cards". While there was a legitimate concern this procedure did not accommodate any questions calling for an answer other than one described by the three cards, the "extremely limited use" of the procedure meant that it did not lead to a miscarriage of justice (at [80]–[81]).

Section 55 Relevant evidence

In civil proceedings, under the common law rule in Jones v Dunkel, adverse inferences may be drawn from the failure of a party to adduce particular evidence, but not if the failure is satisfactorily explained. An explanation that a witness was not called "not wanting to prolong these proceedings" is unlikely to be a "sufficient" explanation, particularly where the person was in a position to provide important evidence: Knell v QAV Pty Ltd [2020] WASCA 23 at [9], [112].

Section 59 The hearsay rule–exclusion of hearsay evidence

In Federal Commissioner of Taxation v Bosanac (No 7) [2021] FCA 249, it was accepted at [35]–[36] that an affidavit filed, but not read in a proceeding in which its tender is sought, is a "previous representation" (to which the hearsay rule applies), since the contents of an affidavit is not evidence adduced in the court until such time as it has been formally read.

Section 66 Exception: criminal proceedings if maker available

In Kassab v The Queen [2021] NSWCCA 46, a case where some complaints were made 30 to 40 years after the alleged offences, the NSW Court of Criminal Appeal avoided a focus on whether a memory was "vivid" and emphasised the fact that complaints "were made on an ongoing basis over the years", beginning even prior to the commission of some of the alleged offences (at [340]). That was a "significant difference" from a case where a complainant discloses alleged abuse for the first time after 30 years.

Section 69 Exception: business records

  • Even if survey reports do not record the activities of a business and are "products" of a business, they form part of the records of the business if produced for the purpose of those business activities and are intended to be relied upon by the business: Dr August Wolff GmbH & Co KG Arzneimittel v Combe International Ltd [2020] FCA 39 at [132].
  • The requirements of the provision may be satisfied even if the business no longer exists and evidence is not adduced either by the maker of the document or a representative of that business: Axent Holdings Pty Ltd (t/as Axent Global) v Compusign Australia Pty Ltd [2020] FCA 1373 at [796].
  • Section 69(4) has been applied to admit evidence of "a negative search": I-MED Radiology Network Ltd v Director of Professional Services Review [2020] FCA 1645 at [14]–[20].

Section 79 Exception: opinions based on specialised knowledge

The NSW Court of Criminal Appeal held in Xie v The Queen [2021] NSWCCA 1 that an assessment of the reliability of scientific evidence, including by way of validation, does not arise under this provision (at [295]–[300]).

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

In Federal Commissioner of Taxation v Bosanac (No 7) [2021] FCA 249, it was accepted at [35]–[36] that an affidavit filed but not read in a proceeding in which its tender is sought is a "previous representation", since the contents of an affidavit is not evidence adduced in the court until such time as it has been formally read. On that basis, such parts of the affidavit that constituted admissions were admitted into evidence against the person who swore the affidavit.

Section 91 Exclusion of evidence of judgments and convictions

It has been held that a court considering making a "vexatious proceedings order" may have regard to other proceedings, including any reasons for judgment in those proceedings, without infringing this provision, because the judgment is not relied upon to prove a fact in issue in those proceedings: Fokas v Mansfield (No 2) [2020] FCA 30 at [67].

Section 97 The tendency rule

  • 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]).
  • In some cases, even a single event relied upon as tendency evidence may have significant probative value: TL v The Queen [2020] NSWCCA 265, Hoeben CJ at CL (Bellew J agreeing) at [224].

Section 98 The coincidence rule

The number of "events" may be relevant to the question whether the evidence has significant probative value, but as the NSW Court of Criminal Appeal observed in Xie v The Queen [2021] NSWCCA 1 at [785]:

… The significance of the number of events really depends upon a variety of circumstances such as the nature of the events, the uniqueness or otherwise of their qualities, and the nature of the facts in issue to which the evidence is said to be relevant. For example, if an event or circumstance is quite unique, seeing it replicated elsewhere just the once might be quite significant, whereas something less unique might need to be seen elsewhere a number of times before it could assume significance. …

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

In Xie v The Queen [2021] NSWCCA 1, the NSW Court of Criminal Appeal was satisfied that an argument based on a risk the jury would give the coincidence evidence disproportionate weight did "not pay sufficient deference to the intelligence and commonsense of jurors" and all the particular concerns raised were matters that "are readily assessible in accordance with the common and everyday experience of life" (see at [804]–[806]).

Section 129 Exclusion of evidence of reasons for judicial etc. decisions

In Springs v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 197, Perram J held at [53]–[55] that a member of the Administrative Appeals Tribunal was "a judge in an Australian or overseas proceeding" for the purposes of s 129(1) but that evidence about the member's deliberations was "not forbidden" because of the operation of s 129(5)(c).

Section 131 Exclusion of evidence of settlement negotiations

In Jess v McNiven [2021] FCA 53, McKerracher J was "unable to discern any true difference in the approaches taken by the courts" (at [31] in respect of the exception in s 131(2)(g) "evidence that has been presented in the proceeding, or an inference from evidence that has been presented in the proceeding, is likely to mislead the court unless evidence of the communication or document is presented to contradict or to qualify that evidence"). However, this analysis appears to have been based on a misconception regarding the "narrow approach" taken by Emmett J in Brown v Commissioner of Taxation (2001) 47 ATR 178; [2001] FCA 596. McKerracher J emphasised that Emmett J stated that "the communications … are not directly relevant in the proceeding before me", failing to give significance to the preceding sentence where Emmett J stated that this provision "will apply where the court would be likely to be misled as to the existence or contents of an excluded communication or document, where those matters are in issue in the proceeding".

Section 137 Exclusion of prejudicial evidence in criminal proceedings

  • The NSW Court of Criminal Appeal held in Xie v The Queen [2021] NSWCCA 1 that an assessment of the reliability of scientific evidence, including by way of validation, does not arise under this provision (at [295]–[300]). As regards possible exclusion pursuant to s 137, the court stated at [300]:

    To the extent that Tuite held that an assessment of the reliability of the scientific evidence, including by way of validation, was part of the assessment of "probative value" under s 137, then it is inconsistent with [IMM v The Queen (2016) 257 CLR 300; 90 ALJR 529; [2016] HCA 14] at [52] (per French CJ, Kiefel, Bell and Keane JJ) ("IMM").

    On the other hand, the NSW Court of Criminal Appeal went on to acknowledge that issues of validity and unreliability might arise in the context of an assessment of "unfair prejudice", noting what French CJ, Kiefel, Bell and Keane JJ stated in IMM at [57]:

    In R v XY, Basten JA spoke of reliability being taken into account, but this was in the context of an assessment of the risk of prejudice under s 137, not as part of the assessment of the probative value of the evidence, which is the other side of the "weighing" exercise.

    The NSW Court of Criminal Appeal in Xie stated at [301]:

    IMM left open the possibility that an assessment of the "reliability" of evidence may be permissible as part of an inquiry into the "danger of unfair prejudice" that would arise from its admission for the purposes of applying s 137 (IMM at [57]). It is not necessary to determine whether that is so, and, if it is, whether the admission of supposedly unvalidated expert opinions is capable of causing unfair prejudice.

  • No error was found in a refusal to exclude evidence where EMDR was undergone after statements were made to the police and there was no evidence of any apparent change in the witness’s recollection after the treatment: Kassab v The Queen [2021] NSWCCA 46 at [310]–[314].

Section 140 Civil proceedings: standard of proof

In Jensen v Cultural Infusion (Int) Pty Ltd [2020] FCA 358, Wheelahan J observed at [31] that allegations that a person has contravened a civil remedy provision in the Fair Work Act 2009 (Cth) may involve allegations about grave matters that attract the application of s 140(2)(c) but held at [32] that s 140(2)(c) should not be applied to a consideration of the preliminary issue of determining whether persons were independent contractors or employees.

Section 141 Criminal proceedings: standard of proof

Section 161A of the Criminal Procedure Act 1986 was inserted by the Stronger Communities Legislation Amendment (Miscellaneous) Act 2020 and took effect on 1 March 2021. 

It is apparent that the provision is derived from the passage in the judgment of the High Court in R v Bauer (2018) 266 CLR 56; 92 ALJR 846; [2018] HCA 40 at [86]. While there are some differences in the precise wording of s 161A(3)(a), the substance is the same – the jury may be directed that an act or omission relied upon for tendency reasoning (or coincidence reasoning) must be proved beyond reasonable doubt if there is "a significant possibility that" the jury will regard the alleged tendency or improbability of coincidence as indispensable/essential to a guilty verdict. It would not be appropriate in such circumstances for the trial judge simply to direct the jury that they must be satisfied of the proof of the uncharged acts beyond reasonable doubt. Rather, the direction would be along the following lines: "If you conclude that the occurrence of an uncharged act is indispensable, or essential, before you could be satisfied beyond reasonable doubt of the guilt of the accused, I direct you that you cannot find the accused guilty unless you are satisfied of the proof of that uncharged act beyond reasonable doubt".

It is important to emphasise that such a direction should be given if there is "a significant possibility" that the jury will regard the uncharged act as indispensable or essential to a guilty verdict. It is not necessary that the trial judge be satisfied that it is indispensable or essential to a guilty verdict. It may be possible for a trial judge to identify whether or not a particular intermediate fact is a necessary link in a process of deductive reasoning towards guilt, but where inductive reasoning is adopted by a juror, some other intermediate fact may properly be regarded as indispensable to that juror excluding any reasonable doubt as to guilt. For that reason, the observation in the NSW Criminal Trial Courts Bench Book at [4.226] that "[s]uch cases are likely to be rare" is problematic. While tendency evidence or coincidence evidence would almost never be a necessary link in a process of deductive reasoning towards guilt, there will be many cases where a juror may quite reasonably consider it essential to proof of guilt beyond reasonable doubt. The reference in the NSW Criminal Trial Courts Bench Book to the "example" of Adams v The Queen [2017] NSWCCA 215 is potentially misleading, bearing in mind that was a case where the prosecution conceded (see at [13]) that "the existence of some tendency to strangle was an indispensable intermediate fact" (emphasis added). That would not be an example of a case where is there is "a significant possibility" that a juror, applying inductive reasoning, will regard the alleged tendency as "indispensable" to a guilty verdict.

Section 165A Warnings in relation to children's evidence

In Decision restricted [2021] NSWCCA 47, it was held that stating to the jury that "children are not little adults" was "permissible comment" (at [192]) and statements to the jury concerning children's logic (or how they think and speak) were permissible (at [193]) but statements which could be interpreted as the trial judge's "personal experiences and views" were not permissible (at [196]), particularly where the trial judge used "imperative language so that comments or remarks may be treated by the jury as directions" (at [197]). The need for caution has been highlighted since the judgment of the High Court in McKell v The Queen (2019) 264 CLR 307; 276 A Crim R 133; [2019] HCA 5 restricting the ability of trial judges to express opinions or make comments to juries in criminal trials. The plurality judgment of Bell, Keane, Gordon and Edelman JJ recognized a general rule of practice that a trial judge should not indicate to the jury his or her opinion on the determination of a question of fact that is in dispute between the parties at trial (at [49], [53]).

Section 190 Waiver of rules of evidence

In Obannon v Scarffe [2021] FamCAFC 33, the Full Court of the Family Court observed at [139] that a party "ought not be permitted on appeal to advance for the first time arguments not advanced before the primary judge" and concluded that at [140] that "the primary judge was not under a separate duty to determine the admissibility of the expert evidence absent any objection being raised before the primary judge concerning the admissibility of that evidence".

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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