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August 2015

• Section 97 The tendency rule
• Section 101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution
• Section 116 Directions to jury
• Section 117 Definitions
• Section 141 Criminal proceedings: standard of proof
• Section 164 Corroboration requirements abolished
• Section 165 Unreliable evidence
• Section 165A Warnings in relation to children's evidence
• Section 165B Delay in prosecution
• Dictionary: Unavailability of persons

Updated 31 August 2015

Section 97 The tendency rule

In McIntosh v The Queen [2015] NSWCCA 184, Basten JA stated at [47]:

[T]he suggestion that the possibility of concoction is a factor which must be taken into account in determining whether particular evidence has significant probative value should not be accepted.

The other members of the Court of Criminal Appeal agreed with Basten JA. However, the proposition was confined to the application of this provision and it remains to be seen whether it will be applied in the context of s 101.

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

The Victorian Jury Directions Act 2015, ss 25 – 30 (see also ss 12 – 17) regulates the giving of jury directions in respect of “other misconduct evidence”, defined in s 26 to mean “(a) coincidence evidence; or (b) tendency evidence; or (c) evidence of other discreditable acts and omissions of an accused that are not directly relevant to a fact in issue; or(d) evidence that is adduced to assist the jury to understand the context in which the offence charged or any alternative offence is alleged to have been committed”. Common law rules are abolished (s 30). If the evidence is adduced by the prosecution and defence counsel asks for a direction (s 27),

the trial judge must -
(a) identify how the other misconduct evidence is relevant (whether directly or indirectly) to the existence of a fact in issue in the trial and direct the jury not to use the evidence for any other purpose; and
(b) if the evidence forms only part of the prosecution case against the accused, inform the jury of that fact; and
(c) direct the jury that it must not decide the case based on prejudice arising from what the jury has heard about the accused.

However, the judge need not give the direction if there are good reasons for not doing so” (s 14). Further, the judge “need not … (a) explain further what the jury should consider in deciding whether to use the other misconduct evidence; or (b) identify impermissible uses of the other misconduct evidence; or (c) refer to any other matter” (s 27(3)), although this provision is itself subject to s 29 (which provides that where “other misconduct evidence (other than tendency evidence) is adduced”, defence counsel may request “that the trial judge warn the jury not to use the evidence as tendency evidence”) and s 14 (which requires the judge to comply with such a request “unless there are good reasons for not doing so”). Similar provisions apply where “other misconduct evidence” is adduced by a “co-accused” (s 28). As regards directions during the course of the trial, s 10(2) provides that a trial judge may give “a direction, that is consistent with this Act, that the trial judge considers necessary at any time before the close of all evidence”.

Section 116 Directions to jury

This provision has been deleted from the Victorian Act. In Victoria, the Jury Directions Act 2015 deals comprehensively with warnings to juries in criminal proceedings (although s 115(7) still applies). Division 4 deals with “identification evidence”, defined in s 35 in a way that is significantly broader than the definition of “identification evidence” in the Dictionary to this Act. It would include evidence of identification of a person other than the defendant (“accused”) and evidence of identification of an object. On the other hand, as with the definition in this Act, it would not apply to evidence of description of a person or object unless the person who gave the description took the next step of comparing the person or object described with another person (such as the defendant) or object. The prosecution or defence may request a direction pursuant to s 12: s 36(1). The party making a request for a direction “must specify … the significant matters that may make the evidence unreliable”: s 36(2). The significance of the reference to s 12 is that this is the provision which imposes a requirement on the parties to request jury directions after the close of evidence and before addresses and which triggers the operation of s 14. Section 36(3) provides:

In giving a direction referred to in subsection (1), the trial judge must—
(a) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it; and
(b) inform the jury of the significant matters that the trial judge considers may make the evidence unreliable; and
(c) inform the jury that--
(i) a witness may honestly believe that his or her evidence is accurate when the witness is, in fact, mistaken; and
(ii) the mistaken evidence of a witness may be convincing; and
(d) if relevant, inform the jury that a number of witnesses may all be mistaken; and
(e) if relevant, inform the jury that mistaken identification evidence has resulted in innocent people being convicted.

It may be observed that this provision is different from s 116(1) in a number of ways. Section 116 imposes an obligation on the trial judge even in the absence of a request for a direction – although the courts have placed limitations on that proposition (see [1.3.10000]). While s 36(3) uses the term “must”, this only relates to the contents of a direction if the trial judge accedes to the request by a party for a direction. Section 14(1) requires the trial judge to give the “requested direction unless there are good reasons for not doing so” (the same formulation as found in s 165(3): see [1.4.2900]). Section 14(2) specifies matters the trial judge must have regard to in determining whether there are such “good reasons”. Significantly, s 15 provides that, “[s]ubject to section 16, the trial judge must not give the jury a direction that has not been requested under section 12”. Section 16 mandates a direction “if the trial judge considers that there are substantial and compelling reasons for doing” (and certain procedural requirements are satisfied). However, it is possible that an appeal court may be satisfied that, even if no request was made, there has been a “substantial miscarriage of justice” on the basis that the trial judge should have considered that there were “substantial and compelling reasons” for giving the direction.

Another difference from s 116(1) is that the trial judge need only inform the jury of “significant” matters that the trial judge considers may cause the evidence to be unreliable. “Significant” should be understood in the sense of having a real bearing on the assessment of reliability in the circumstances of the case (the factors discussed at [1.3.10000] may be significant in this sense). Further, there are specific requirements in (c), (d) and (e) which must be complied with, at least “if relevant”. Like s 116(2), s 6 provides that “[i]n giving a direction to the jury, the trial judge need not use any particular form of words” (in addition, s 5(4) should be noted).

Section 37 effectively abolishes all common law obligations to direct a jury “regarding the unreliability of identification evidence”. This is unlikely to make a significant difference (except, possibly, in the case where no request is made by a party for a direction: see discussion above).

Section 117 Definitions

In the Commonwealth Act, the Dictionary defines “Australian lawyer” to mean:

a person who is admitted to the legal profession by a Supreme Court of a State or Territory under a law of a State or Territory specified in the regulations.

However, the NSW Act provides that “Australian lawyer”

has the meaning it has in the Legal Profession Uniform Law (NSW).

That legislation provides that “Australian lawyer” means:

a person admitted to the Australian legal profession in this jurisdiction or any other jurisdiction

In Victoria, the Dictionary to the Act does not define “Australian lawyer” but s 158 of the Interpretation of Legislation Act 1984 (Vic), which has general application, defines it to have the same meaning as it does under the Legal Profession Uniform Law (Vic), which is identical to the comparable definition in the Legal Profession Uniform Law (NSW).

Section 141 Criminal proceedings: standard of proof

Part 7 of the Jury Directions Act 2015 contains provisions dealing with directions on proof “beyond reasonable doubt”.

Section 63(2) provides, in effect, that any “power” of a trial judge to give the jury an explanation of the phrase “proof beyond reasonable doubt” is not affected by the Act. However, the Act does regulate what the trial judge may say about the phrase if the jury asks a question that directly or indirectly raises its meaning (s 63(1)). Section 64 prescribes what the trial judge “may” say in that situation.

Further, as regards what “must be proved beyond reasonable doubt”, s 61 provides:

What must be proved beyond reasonable doubt
Unless an enactment otherwise provides, the only matters that the trial judge may direct the jury must be proved beyond reasonable doubt are—
(a) the elements of the offence charged or an alternative offence; and
(b) the absence of any relevant defence.

Section 62 provides:

Abolition of common law obligation to give certain Directions
Any rule of common law under which a trial judge in a criminal trial is required to direct the jury that a matter, other than a matter referred to in section 61, must be proved beyond reasonable doubt is abolished.

The effect of s 62 is that any common law obligation (see [1.4.220]) to direct a jury that an “indispensable link in a chain of reasoning towards an inference of guilt” must itself be proved beyond reasonable doubt is abolished (see Note 1 to s 62). Equally, the common law obligation (see [1.4.220]) to direct a jury that “tendency evidence” must be proved beyond reasonable doubt is also abolished. Section 61 prohibits a trial judge from directing the jury that such matters “must be proved beyond reasonable doubt”.

Section 164 Corroboration requirements abolished

Section 164 in the Commonwealth and NSW Acts abolishes (with the sole exception of the rules relating to perjury) the common law requirements in respect of corroboration of certain categories of evidence. The Victorian Act goes further. Like the Commonwealth and NSW provisions, it abolishes the common law requirements in respect of corroboration of certain categories of evidence. As regards civil proceedings where there is a jury, s 164(3), like the Commonwealth and NSW provision, abolishes any common law rules which required a judge to warn a jury as to the dangers of certain categories of (uncorroborated) evidence – although the judge may still give such a warning in appropriate circumstances. Section 165 imposes warning requirements in civil proceedings where there is a jury in respect of evidence that may be unreliable. These warning requirements are discussed in the commentary to s 165. As regards criminal proceedings with a jury, s 164(4) prohibits a corroboration warning to the jury in any circumstances – with the sole exception of “a criminal proceeding for the offence of perjury or a similar or related offence” (s 164(5)). Section 164(6) makes it clear that common law rules which required or permitted a corroboration warning in cases other than perjury are abolished. In addition, the Victorian Jury Directions Act 2015 deals comprehensively with jury warnings in criminal proceedings.

Section 165 Unreliable evidence

Unlike the Commonwealth and NSW provisions, the Victorian provision is now limited to civil proceedings. The Jury Directions Act 2015 (Vic) deals comprehensively with warnings to juries in criminal proceedings. Section 32 provides:

Direction on unreliable evidence
(1) The prosecution or defence counsel may request under section 12 that the trial judge direct the jury on evidence of a kind that may be unreliable.
(2) In making a request referred to in subsection (1), the prosecution or defence counsel (as the case requires) must specify--

(a) the significant matters that may make the evidence unreliable; or
(b) if the request concerns evidence given by a child, the significant matters (other than solely the age of the child) that may make the evidence of the child unreliable.

(3) In giving a direction referred to in subsection (1), the trial judge must--

(a) warn the jury that the evidence may be unreliable; and
(b) inform the jury of—

(i) the significant matters that the trial judge considers may cause the evidence to be unreliable; or
(ii) if the direction concerns evidence given by a child, the significant matters (other than solely the age of the child) that the trial judge considers may make the evidence of the child unreliable; and

(c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.

Section 31 provides that “evidence of a kind that may be unreliable includes” specified categories of evidence that correspond in substance to the specified categories in s 165(1)(a), (c), (d), (e) and (f). Section 165(1)(b) “identification evidence” is not included because Div 4 deals with “identification evidence”. In summary:

• Unlike the prevailing view with respect to s 165, the specified categories of evidence in s 31 are deemed to be “evidence of a kind that may be unreliable” (cf [1.4.2860]).
• The party making a request for a direction “must specify … the significant matters that may make the evidence unreliable” (although where the request concerns evidence given by a child, the age of the child alone cannot be a “significant matter”): s 32(2) (cf [1.4.3140]).
• The significance of the reference to s 12 is that this is the provision which imposes a requirement on the parties to request jury directions after the close of evidence and before addresses and which triggers the operation of s 14. Section 14(1) requires the trial judge to give the “requested direction unless there are good reasons for not doing so” (the same formulation as found in s 165(3): see [1.4.2900]). Section 14(2) specifies matters the trial judge must have regard to in determining whether there are such “good reasons”. Significantly, s 15 provides that, “[s]ubject to section 16, the trial judge must not give the jury a direction that has not been requested under section 12”. Section 16 mandates a direction “if the trial judge considers that there are substantial and compelling reasons for giving the direction” (and certain procedural requirements are satisfied).
• The provision dealing with the contents of the direction is very similar to s 165(3): see [1.4.2880]. However, there are important differences. The trial judge need only inform the jury of “significant” matters that the trial judge considers may cause the evidence to be unreliable (and where the direction concerns evidence given by a child, the age of the child alone cannot be a “significant matter”): s 32(2)(b). Further, it is important to note that, in contrast with the position under the Commonwealth and NSW Act, s 164(4) prohibits a corroboration warning to the jury in any circumstances (with the sole exception of “a criminal proceeding for the offence of perjury or a similar or related offence”). Section 6, like s 165(4), provides that “[i]n giving a direction to the jury, the trial judge need not use any particular form of words”. In addition, s 5(4) should be noted:

It is the intention of the Parliament that a trial judge, in giving directions to a jury in a criminal trial, should—

(a) give directions on only so much of the law as the jury needs to know to determine the issues in the trial; and
(b) avoid using technical legal language wherever possible; and
(c) be as clear, brief, simple and comprehensible as possible.

• As regards the evidence of a child, the age of the child alone cannot be a “significant matter”): s 32(2)(b). Further, s 33 prohibits the trial judge (as well as the prosecution, defence counsel and, if the accused is unrepresented, the accused) saying or suggesting “in any way to the jury” the matters proscribed by s 165A(1).
• In contrast with s 165(5), s 34 effectively abolishes all common law obligations to direct a jury regarding “evidence of a kind that may be unreliable”. However, this may only make a significant difference in one respect – where no request is made by a party for a direction. Under the common law, a direction may be required even if not requested (see [1.4.3060]) and an appeal against conviction may succeed even if no direction was requested. Under the Jury Directions Act 2015, s 15 provides that “[s]ubject to section 16, the trial judge must not give the jury a direction that has not been requested under section 12”. Section 16 mandates a direction “if the trial judge considers that there are substantial and compelling reasons for giving the direction” (and certain procedural requirements are satisfied). Nevertheless, even in this respect the difference may be more apparent than real. An appeal court may be satisfied that, even if no request was made, there has been a “substantial miscarriage of justice” on the basis that the trial judge should have considered that there were “substantial and compelling reasons” for giving the direction.

As regards directions other than in relation to “unreliable evidence”, the Jury Directions Act 2015 does not attempt to deal specifically with the kinds of directions discussed at [1.4.3060]. However, ss 14 – 16 apply to the giving of those kinds of directions. Section 14(1) requires the trial judge to give a “requested direction unless there are good reasons for not doing so” (the same formulation as found in s 165(3): see [1.4.2900]). Section 14(2) specifies matters the trial judge must have regard to in determining whether there are such “good reasons”. Where no direction is requested by a party, s 15 provides that “[s]ubject to section 16, the trial judge must not give the jury a direction”. Section 16 mandates a direction “if the trial judge considers that there are substantial and compelling reasons for giving the direction” (and certain procedural requirements are satisfied).

As regards “incriminating conduct” by an accused (such as lies) which the prosecution may contend “amounts to an implied admission by the accused” (s 18), the use of such evidence is regulated by Div 1 of Pt 4 (and common law obligations with respect to evidence of “consciousness of guilt” are abrogated: s 24). There are notice requirements (s 19). Such evidence cannot be relied on by the prosecution as evidence of an implied admission “unless the trial judge determines that, on the basis of the evidence as a whole, the evidence of conduct is reasonably capable of being viewed by the jury as” an implied admission (s 20(1)(b)). If that requirement is satisfied, mandatory jury directions are required under s 21. In addition, defence counsel may request under s 12 additional directions specified in s 22 (to which s 14 applies imposing an obligation on the trial judge to give the “requested direction unless there are good reasons for not doing so”. Even in the absence of a request, the trial judge may give the directions pursuant to s 16. Where the conduct could be regarded as “incriminating conduct” but is not left to the jury as an implied admission, s 23 provides:

Direction to avoid risk of improper use of evidence

(1) If evidence is given of conduct but the prosecution does not rely on the evidence as evidence of incriminating conduct, defence counsel may request under section 12 that the trial judge—

(a) direct the jury that there are all sorts of reasons why a person might behave in a way that makes the person look guilty; and
(b) warn the jury that even if the jury thinks that the accused engaged in the conduct, it must not conclude from that evidence that the accused is guilty of the offence charged.

(2) Without limiting section 14, it is a good reason for not giving the requested direction if the trial judge considers that there is no substantial risk that the jury might use the evidence as evidence of incriminating conduct.

Section 14(1) requires the trial judge to give the “requested direction unless there are good reasons for not doing so”. Section 23(2) provides that such a “good reason” would the absence of any “substantial risk” that the jury might use the evidence as an implied admission. Section 15 provides that, “[s]ubject to section 16, the trial judge must not give the jury a direction that has not been requested under section 12”. Section 16 mandates a direction “if the trial judge considers that there are substantial and compelling reasons for doing” (and certain procedural requirements are satisfied). In giving a direction to the jury, the trial judge need not use any particular form of words: s 6 (see also s 5(4)).

As regards directions with respect to delay in making a complaint, Div 2 of Pt 5 of the Jury Directions Act 2015 deals with such directions in a “criminal proceeding that relates (wholly or partly) to a charge for a sexual offence” (s 48). The term “sexual offence” has “the same meaning as in the Criminal Procedure Act 2009” (s 50). The position may be summarized as follows:

• Section 52 requires, subject to s 52(5), the trial judge to “direct the jury in accordance with subsection (4)” when evidence is, or is likely to be, admitted that “suggests that the complainant delayed in making a complaint or did not make a complaint”. Section 52(4) provides:

In giving a direction under this section, the trial judge must inform the jury that experience shows that—

(a) people may react differently to sexual offences and there is no typical, proper or normal response to a sexual offence; and
(b) some people may complain immediately to the first person they see, while others may not complain for some time and others may never make a complaint; and
(c) delay in making a complaint in respect of a sexual offence is a common occurrence.

Section 52(5) provides that s 52 “does not limit any direction that the trial judge may give the jury in relation to evidence given by an expert witness”.

• Section 53 provides:

The prosecution may request under section 12 that the trial judge direct the jury that there may be good reasons why a person may not complain, or may delay in complaining, about a sexual offence.

Section 14(1) requires the trial judge to give the “requested direction unless there are good reasons for not doing so” (the same formulation as found in s 165B(3): see [1.4.3210]). Section 14(2) specifies matters the trial judge must have regard to in determining whether there are such “good reasons”. In giving a direction to the jury, the trial judge need not use any particular form of words: s 6 (see also s 5(4)). If there has been no request for a direction, s 15 provides that, “[s]ubject to section 16, the trial judge must not give the jury a direction”. Section 16 mandates a direction “if the trial judge considers that there are substantial and compelling reasons for giving the direction” (and certain procedural requirements are satisfied).

• Section 54 abolishes the common law rule under which a trial judge may be required to direct the jury that “a complainant’s delay in making a complaint or lack of complaint may cast doubt on the reliability of the complainant's evidence”. Note 1 to s 54 states: “This provision abolishes the rules attributed to Kilby v The Queen (1973) 129 CLR 460; 47 ALJR 369; [1973] HCA 30 and Crofts v The Queen (1996) 186 CLR 427; 288 A Crim R 23; [1996] HCA 22”.
• However, the trial judge may direct the jury, consistently with the common law, that, “in evaluating the evidence of the complainant and in determining whether to believe her they [may] take into account [his or] her failure to make a complaint at the earliest reasonable opportunity as reducing [his or] her credibility”. That this is permissible is confirmed by Note 3 to s 51, which states:

The trial judge, the prosecution and defence counsel (or, if the accused is unrepresented, the accused) may say or suggest that the particular complainant's delay in making a complaint or lack of a complaint does, or may, affect the complainant's credibility.

• On the other hand, s 51(1) provides that “the trial judge, the prosecution and defence counsel (or, if the accused is unrepresented, the accused) must not say, or suggest in any way, to the jury that”:

(a) the law regards complainants in sexual offence cases as an unreliable class of witness; or
(b) complainants in sexual offence cases are an unreliable class of witness; or
(c) complainants who delay in making a complaint or do not make a complaint are, as a class, less credible or require more careful scrutiny than other complainants.

This prohibition applies generally and there is no provision in the Act qualifying it. Nevertheless, the provision does not require the trial judge to inform the jury about the matters set out in the provision (nor does any other provision in the Act). If a party breaches the prohibition in this provision, the trial judge must “correct” the “statement or suggestion” (s 7). However, s 7(2) provides that the trial judge need not correct the statement or suggestion “if there are good reasons for not doing so” and gives the example of where “counsel has already corrected a prohibited statement or suggestion at the invitation of the trial judge”. Plainly enough, the scope of the prohibition in s 51(1)(c) is a matter of some importance. There is a distinction (as recognized by Note 3 to s 51) between a proposition that complainants who delay in complaining “are, as a class, less credible” and a proposition that, in the circumstances of the case, the jury would be entitled to regard the particular complainant’s credibility as reduced. However, the line between the two propositions is fine, particularly given the prohibition on “suggest[ing] in any way” the former proposition.

• Section 51(2) provides:

The trial judge must not say, or suggest in any way, to the jury that, because the complainant delayed in making a complaint or did not make a complaint—

(a) it would be dangerous or unsafe to convict the accused; or
(b) the complainant's evidence should be scrutinised with great care.

This prohibition applies generally and there is no provision in the Act qualifying it. Like s 51(1), the provision does not require the trial judge to inform the jury about the matters set out in the provision (nor does any other provision in the Act). Suggesting that a particular complainant’s delay in making a complaint or lack of a complaint does, or may, affect the complainant’s credibility would not breach this prohibition.

Section 165A Warnings in relation to children's evidence

Unlike the Commonwealth and NSW provisions, the Victorian provision is now limited to civil jury proceedings. The Jury Directions Act 2015 (Vic) deals comprehensively with warnings to juries in criminal proceedings.

Section 165B Delay in prosecution

This provision has been deleted from the Victorian Act. The Jury Directions Act 2015 (Vic) deals comprehensively with warnings to juries in criminal proceedings. Section 39 provides:

Direction on significant forensic disadvantage
(1) Defence counsel may request under section 12 that the trial judge direct the jury on forensic disadvantage experienced by the accused.
(2) The trial judge may direct the jury as referred to in subsection (1) only if the trial judge is satisfied that the accused has experienced a significant forensic disadvantage.
(3) In giving a direction referred to in subsection (1), the trial judge—

(a) must inform the jury of—

(i) the nature of the disadvantage experienced by the accused; and
(ii) the need to take the disadvantage into account when considering the evidence; and

(b) must not say, or suggest in any way, to the jury that—

(i) it would be dangerous or unsafe to convict the accused; or
(ii) the complainant's evidence should be scrutinised with great care.

Section 38 defines a “forensic disadvantage”:

forensic disadvantage means a disadvantage (that is more than the mere existence of delay) to the accused in—

(a) challenging, adducing or giving evidence; or
(b) conducting his or her case—

because of the consequences of delay due to the period of time that has elapsed between the alleged offence and the trial.

In summary:

• Defence counsel may request under s 12 that the trial judge direct the jury on forensic disadvantage experienced by the accused: s 39(1).
• Section 14(1) requires the trial judge to give the “requested direction unless there are good reasons for not doing so” (the same formulation as found in s 165B(3): see [1.4.3210]). Section 14(2) specifies matters the trial judge must have regard to in determining whether there are such “good reasons”.
• If there has been no request for a direction, s 15 provides that, “[s]ubject to section 16, the trial judge must not give the jury a direction”. Section 16 mandates a direction “if the trial judge considers that there are substantial and compelling reasons for doing” (and certain procedural requirements are satisfied).
• The trial judge need only give the direction if satisfied that the accused has experienced a significant forensic disadvantage: s 39(2). As regards a “significant” forensic disadvantage, see [1.4.3200].
• If the direction is given, it must inform the jury of the nature of the disadvantage experienced by the accused; and the need to take the disadvantage into account when considering the evidence: s 39(3)(a). This is substantially the same requirement as under s 165B(2): see [1.4.3220].
• The trial judge is prohibited from saying or suggesting “in any way” that “it would be dangerous or unsafe to convict the accused; or the complainant’s evidence should be scrutinised with great care”: s 39(3)(b). The first prohibition is substantially the same prohibition as under s 165B(4): see [1.4.3220]. However, the prohibition on suggesting “in any way” that “the complainant’s evidence should be scrutinised with great care” goes significantly further and raises some difficulties regarding what direction can legitimately be given: see [1.4.3090].
• In giving a direction to the jury, the trial judge need not use any particular form of words: s 6 (see also s 5(4)).
• Any rule of common law under which a trial judge is required or permitted to direct the jury on a disadvantage to the accused in challenging, adducing or giving evidence or conducting his or her case because of delay is abolished: s 40. Under the common law, a direction may be required even if not requested (see [1.4.3060]) and an appeal against conviction may succeed even if no direction was requested. Under the Jury Directions Act 2015, s 15 provides that “[s]ubject to section 16, the trial judge must not give the jury a direction that has not been requested under section 12”. Section 16 mandates a direction “if the trial judge considers that there are substantial and compelling reasons for giving the direction” (and certain procedural requirements are satisfied). However, it is possible that an appeal court may be satisfied that, even if no request was made, there has been a “substantial miscarriage of justice” on the basis that the trial judge should have considered that there were “substantial and compelling reasons” for giving the direction.

Dictionary: Unavailability of persons

In R v Nona [2015] ACTSC 175, Refshauge J of the ACT Supreme Court ruled that several witnesses were not available to give evidence on this basis, after a case-by-case analysis. Refshauge J held that the test would not be satisfied simply on the basis that the witness had memory problems (at [141]) but may be where a mental or physical condition has caused memory loss or amnesia (at [142]). Refshauge J held that the provision does apply where the witness’s mental condition is such that he or she will suffer significant mental adverse consequences from giving the evidence (at [144], [146]). The risks of such harm must be real and not merely speculative (at [147]). It is not necessary to show an absolute inability, such as where the witness is so mentally impaired that he or she is incapable of responding in any meaningful way to questions or is mute through some mentally traumatic event (at [143]).

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