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Uniform Evidence Law Noticeboard – April 2018

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The Uniform Evidence Law Noticeboard is your definitive resource for evidence law news as it occurs. With rapid updating by respected barrister, Stephen J Odgers SC, the Noticeboard keeps you apprised of all of the latest legislative and case developments related to evidence law. For a more detailed look into these and other matters, Uniform Evidence Law, the authority on evidence law, is available for subscription online, in looseleaf or on ProView eSub.

  • Section 46 Leave to recall witnesses

  • Section 48 Proof of contents of documents

  • Section 69 Exception — business records

  • Section 118 Legal advice

  • Section 128 Privilege in relation to self-incrimination in other proceedings

  • Section 130 Exclusion of evidence of matters of state

  • Section 131A Application of Part to preliminary proceedings of courts

  • Section 135 General discretion to exclude evidence

  • Section 137 Exclusion of prejudicial evidence in criminal proceedings

Section 46 Leave to recall witnesses

If the parties in a criminal proceeding agree that a failure of the defence to challenge a complainant’s honesty and credibility will not preclude the defence from arguing that the events complained of did not occur, the trial judge should not invite the jury to take into account that absence of cross-examination: SY v The Queen [2018] NSWCCA 6 at [55]–[56].

Section 48 Proof of contents of documents

In Capital Securities XV Pty Ltd v Calleja [2018] NSWCA 26, in respect of the provision permitting a party to prove the contents of a document in question by tendering a document that “is or purports to be a copy of the document in question and has been produced, or purports to have been produced, by a device that reproduces the contents of documents” (s 48(1)(b)) Leeming JA (Basten and Gleeson JJA agreeing) emphasised at [81] that, “admissibility does not depend on the document being an exact copy …. The pages purport to be a copy which is identical in all relevant respects, which is sufficient”. As regards the application of s 48(1)(d), Leeming JA (Basten and Gleeson JJA agreeing) discussed at [79]–[81] evidence tendered in a trial (a purported photocopy of a 12 page document brought into existence in 2017 in response to a subpoena (by means of “screenshots” from an electronic system whereby a company (“B”) recorded file notes created in 2014 and 2015):

[79] To be clear, the pages sought to be tendered were on no view [B’s] actual file notes. They were copies of the pages which had been produced to the Court by [B] in answer to a subpoena. I mention this because of its similarity with the different submission which found favour with the primary judge and which was repeated on appeal. …
[80] The original documents produced on subpoena were, likewise, not [B’s] original file notes. …
[81] Subsection 47(2) and 48(1) have application here, although they were not drawn to the attention of the primary judge. The fact that the pages produced on subpoena include some words and numbers which were added in 2017 does not preclude the pages from being copies of [B’s] file notes from 2014 and 2015. The pages produced on subpoena are not exact copies (because of the logo and the heading and the footers), but admissibility does not depend on the document being an exact copy. … The pages purport to be a copy which is identical in all relevant  respects, which is sufficient. The heading and footers are not relevant to any issue in the litigation (and indeed were excluded from the tender). The screenshots “purport to have been produced” by use of [B’s] electronic records system, within the meaning of ss 48(1)(b)(ii) and/or 48(1)(d), and the 12 pages purport to reproduce the entirety of the entries in the electronic record system between June 2014 and May 2015, which are identical “in all relevant respects” within the meaning of s 47(2).

As is apparent, the court held that the contents of B’s file notes could be adduced by reliance on a combination of s 48(1)(b) and s 48(1)(d).  Whether or not the evidence was admissible turned on the operation of the business records exception to the hearsay rule (see s 69).

Section 69 Exception — business records

It is important to distinguish in this context a “document” from a “representation” made in that document. To the extent that s 69(2) is satisfied in respect of that representation, then to that extent the hearsay rule does not apply to the document: Lithgow City Council v Jackson (2011) 244 CLR 352; 85 ALJR 1130; [2011] HCA 36 at [17]; Capital Securities XV Pty Ltd v Calleja [2018] NSWCA 26 at [88], [97]. Equally, the fact that s 69(2) is not satisfied in respect of one part of a document does not mean it will not be satisfied in respect of another part (although a concern about one aspect of a document may inform the question whether a representation elsewhere found in the same document satisfied this provision): Capital Securities XV Pty Ltd v Calleja [2018] NSWCA 26 at [103]. As regards proof of the requirements of s 69, Leeming JA (Basten and Gleeson JJA agreeing) stated at [91]:

[Section] 183 of the Evidence Act authorises a court to draw reasonable inferences from the document itself as well as from other matters from which inferences may properly be drawn. That provision provides that where a question arises about the application of the Act to, inter alia, the operation of s 69 to a document, then the court may “draw any reasonable inferences” from the document as well as from other matters from which inferences may properly be drawn.

In that case, inferences were drawn from both the documents sought to be admitted pursuant to this provision and from other matters. Thus, for example, an inference was drawn that the documents were copies of business records of a particular company from the fact that the documents were produced to the court pursuant to court order addressed to the company (at [98]). An inference was drawn from the documents themselves that they were copies of contemporaneous file notes maintained by the company for the purposes of its business (at [98]). Similarly, inferences were drawn from the documents that they were automatically generated (at [107]). Furthermore, it is important to emphasise that other evidence relied upon to prove the requirements of this provision may include a previous representation in the document itself which is not caught by the operation of the hearsay rule in s 59 (because evidence of the previous representation is relevant for a purpose other than to prove the existence of a fact that it can reasonably be supposed that the person who made the representation intended to assert by the representation). Thus, Leeming JA (Basten and Gleeson JJA agreeing) stated at [109] that “in order to apply s 69(2), it is necessary to look to the particular representations which are said to be outside the operation of the hearsay rule” and took into account such representations to infer that “the file notes disclose a series of representations reflecting conversations made at the same time as, or immediately before, the file notes were made, by the person who participated in those conversations”.

Section 118 Legal advice

A copy of a non-privileged document may be privileged where the “contents” of the copy were “prepared” for the prescribed dominant purpose or disclosure will reveal other privileged material. In Desane Properties Pty Ltd v New South Wales [2018] NSWSC 173, Robb J noted the following analysis of the difficulties created by email chains by Macaulay J in Kamasaee v Commonwealth (No 2) [2016] VSC 404 at [46]:

In my view, that on-forwarding of the email chain was tantamount to making “copies” of the original email communications for the purpose of seeking the advice. Emails, of course, do not exist in their original form as the printed documents that have been shown to the court. In their original form, emails are digital data transmissions which are collected and displayed on a computer screen in the form of letters and words due to computer software which causes that to occur. Each email is a standalone communication. But at the click of a particular button on the computer a received email can be reproduced and on-sent to a new recipient with or without a new message, or copied back to the original recipient in the course of a reply. In my view, the use of these processes in email communication effects a copying (or reproducing) function which generates a new form of the original email. The purpose for generating that new form is whichever purpose lies behind the decision to choose to “reply to” or “forward” the original email.

Robb J stated at [178]–[181]:

[178] In my view truly difficult questions may arise where the Court is required to determine whether a chain of emails is protected by client legal privilege. The position may be much more difficult than the case where a photocopy of a document is made. A shopping list may not be privileged, but if a party wishes to obtain legal advice about the shopping list, or to provide it to a lawyer for the dominant purpose of the party being provided with professional legal services related to an anticipated, pending or subsisting proceeding, the fact will be that the photocopy of the shopping list will be produced by the conscious act of the client in photocopying it for the particular purpose. That will not necessarily be the case for chains of emails, which may often include emails that have little to do with the purpose of sending the whole chain to the final recipient, but may in part be created because of lazy decisions along the chain to click on “Reply” or “Reply All”, rather than to take the trouble to create a new email for the relevant protected purpose, containing only the earlier emails or other information necessary to achieve the protected purpose.
[179] Another problematic issue is that email chains tend to proliferate by reason of the “Reply All” function, sometimes in order to spread information among interested persons, and sometimes out of laziness. Many versions containing substantially the same chains may be created with, in a particular case, say, the last email in the chain asking a worker in a neighbouring office to bring back a sandwich for the sender after lunch. All of the prior emails in the chain may be privileged, but the final one obviously is not.
[180] With respect to the views expressed by Macaulay J, the problem created by email chains may not always be solved by treating the on-forwarding of the email chain as being tantamount to making copies of the original email communications for the purpose of seeking legal advice. It will often not be sufficient to consider the circumstances in which the last email in the chain has been produced, as the purpose for its production may not be protected, but emails earlier in the chain may warrant protection.
[181] However, I respectfully agree with Macaulay J that in a particular case, an examination of the final email in the chain in the context of the chain, as a whole, may justify treating the whole chain as if the individual emails had intentionally been copied for a protected purpose.

Section 128 Privilege in relation to self-incrimination in other proceedings

In Construction, Forestry, Mining and Energy Union v Australian Building and 
Construction Commissioner
[2018] FCAFC 4, the Full Court of the Federal Court followed the analysis of the NSW Court of Appeal in Song v Ying (2010) 79 NSWLR 442; [2010] NSWCA 237 where Hodgson JA (Giles and Basten JJA agreeing) held that a party who wishes to give evidence, but only with the protection of a certificate, does not “object” to giving that evidence within the meaning of s 128(1) “because there is no element of compulsion or potential compulsion which makes the expression ‘objects’ apposite” (at [28]). Bromwich J (Kenny and Tracey JJ agreeing) held that Song “was plainly correct” (at [64]). Reliance was placed at [62] on “the ordinary meaning of ‘objects’ as used in s 128(1)” (noting that the High Court observed in Cornwell v The Queen (2007) 231 CLR 260; 169 A Crim R 89; [2007] HCA 12 at [111]–[112] that applying the provision to a party who wishes to give the evidence would “strain” the word “objects”) and the discussion in the ALRC Interim Report which was focused on “balancing the individual’s right or interest in not being compelled to give evidence that may tend to incriminate or expose him or her to penalty, and the public interest in having such evidence available to a court” (at [34], [63]). Bromwich J stated at [36]:

By contrast, to extend that statutory bargain to a party witness in the absence of compulsion would be to bestow a gain on an individual to advance his or her private interest in litigation, protected from the adverse consequences that might otherwise arise from use of that evidence. Such an outcome would be divorced from the clear historical roots of the privilege as an immunity from compulsion that is closely related to the right to silence, as opposed to a positive right to advance a forensic desire. Even if there is any public interest to be had from such an outcome, it would be incidental and secondary to the private interest. That was not any part of the reasoning of the ALRC in recommending a limited modification of the privilege as an alternative to its complete abolition.

It may be observed that, while it is true that the focus of the discussion in the ALRC Interim Report was on advancing a statutory modification of the common law right to not be compelled to self-incriminate, the discussion of the proposed certification procedure did not indicate that it should only be available in circumstances where the person could be compelled to give the evidence. There are good policy reasons why a broad construction should be given to the term “objects” – it would advance a policy that a court should be able to obtain as much relevant evidence as possible from any witness without causing prejudice to that person in subsequent criminal proceedings. That would advance the broad policy framework underpinning the UEL, as proposed by the ALRC, and give less significance to the pre-existing common law. Further, it may be questioned whether the focus on compulsion reflects the “ordinary meaning” of the term “object”. The Macquarie Dictionary defines “object” to mean, inter alia, “to offer a reason or argument in opposition … to express or feel disapproval”. There is no support in that definition for a test in terms of a response “to an element of compulsion or potential compulsion”. There is no obvious textual reason why “object” could not extend to (conditional) opposition to giving certain evidence without the protection of a certificate. However, it is likely that the narrower approach will prevail when the issue is ultimately determined in the High Court, given the scope of the pre-existing common law privilege and the absence in the ALRC discussions of a clearly stated intention to expand the circumstances in which such a claim might be advanced.

Section 130 Exclusion of evidence of matters of state

In Desane Properties Pty Ltd v New South Wales [2018] NSWSC 173, Robb J observed at [52]:

In my view the proper functioning of the government of the State for the purposes of s 130(4)(f) of the Evidence Act plainly extends beyond the functioning of the government in an administrative sense and includes the outcomes that may be achievable by the government as a result of its administrative operation.

Section 131A Application of Part to preliminary proceedings of courts

In Desane Properties Pty Ltd v New South Wales [2018] NSWSC 173, Robb J pointed out at [55]–[57] some of the difficulties in applying s 130 in a pre-trial context:

[55] Section 130(5)(a) of the Evidence Act expressly authorises the Court to take into account, for the purpose of carrying out the balancing exercise required by sub-s (1), the importance of the information or the document in the proceeding.
[56] That exercise would ordinarily require the Court to understand the issues as they are raised by the pleadings or other documents filed by the parties in order to distil the issues. It would also require that the Court have some understanding of how the evidence available to the party seeking production of the information or document would have a tendency to prove or disprove the relevant issue, as the case may be, so that a rational judgment could be made by the Court about the forensic importance of the information or document being made available to the party calling for its production in order to complete the necessary proof.
[57] That is an exercise that is likely to be easier for the Court if undertaken during the course of a hearing, which is the direct province of s 130. Where the principles contained in s 130 are required to be applied in advance of the hearing, by the operation of s 131A of the Evidence Act, the Court is likely to find that the exercise is a more difficult one because of the Court’s limited understanding of the evidence that is available to the party calling for the information or document, and accordingly of the importance of that material in the proceeding.

Section 135 General discretion to exclude evidence

Unfair prejudice may arise from procedural considerations, such as an inability to properly test the evidence. However, it is important to take into account, in this context, the steps that might be taken by the opposing party to address the risk of unfair prejudice without the need to exclude the evidence. Thus, for example, in Capital Securities XV Pty Ltd v Calleja [2018] NSWCA 26, Leeming JA (Basten and Gleeson JJA agreeing) observed at [113] that “a determination of the risk of unfair prejudice required attention to the steps, if any, taken between the time when” the evidence was adduced “and the time when the objection was taken” and the opposing party “could have availed themselves of any of the procedures authorised by Part 4.6 of the Evidence Act” or could have taken other steps to address contended deficiencies with the evidence.

Section 137 Exclusion of prejudicial evidence in criminal proceedings

In Director of Public Prosecutions (Vic) v Wearn [2018] VSCA 39, the Victorian Court of Appeal accepted at [26]–[27] that inconsistencies in successive accounts given by an identification witness should have been disregarded in assessing the probative value of the evidence of identification, pursuant to the judgment of the High Court in IMM v The Queen (2016) 257 CLR 300; 90 ALJR 529; [2016] HCA 14 requiring that such evidence is to be ‘accepted as credible and reliable”. The earlier decision of Bayley v The Queen (2016) 260 A Crim R 1; [2016] VSCA 160, where the Victorian Court of Appeal held that certain identification evidence was of low probative value because of the circumstances in which the identification was made, was distinguished. This approach may be justified on the basis that the inconsistencies of the accounts given by the witness in Wearn went only to the credibility and reliability of the witness’s evidence that he believed that a person he saw sitting in a car was the offender. In contrast, the circumstances in Bayley went to the reliability of the identification itself.

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