Section 32 Attempts to revive memory in court

Section 32(3) provides that, if a witness has, while giving evidence, used a document to try to revive his or her memory about a fact or opinion, the witness may, with the leave of the court, read aloud, as part of his or her evidence, so much of the document as relates to that fact or opinion. In Australian Building and Construction Commissioner v O’Connor (No 3) [2018] FCA 43, it was accepted that there is no requirement that the memory of the witness has been revived. Further, it was accepted that the evidence is to be treated as testimony by the person reading the document, rather than as hearsay evidence.

Section 38 Unfavourable witnesses

Section 38 does not permit general cross-examination and that each area of cross-examination proposed will require leave. The Victorian Court of Appeal has emphasised that while leave may be granted in respect of evidence given by a witness that is unfavourable, “[i]t does not authorise the grant of leave on the grounds that a witness may be ‘unfavourable’ to a party”: Meyer v The Queen [2018] VSCA 140, Priest and Kaye JJA at [184]. As regards granting leave in re-examination, Priest and Kaye JJA stated at [185]–[187]:

[185] … it is abundantly plain that the prosecutor knew of the inconsistencies, well before [the prosecution witness] was called to give evidence, and, further, each of the inconsistencies relied on were apparent by the conclusion of her evidence in chief. …
[…]
[187] In those circumstances, there was no reason why the prosecutor could not have sought leave to cross-examine [the witness] at the conclusion of her evidence in chief, and before defence counsel cross-examined her. Further, it is clear that the prosecutor was alert to the possibility, or indeed the probability, that he would seek such leave when he called [the witness] to give evidence. It is evident that, notwithstanding the clear terms of s 38(4) of the Act, the prosecutor deferred applying for leave to cross-examine [the witness] until the conclusion of the cross-examination of her by defence counsel, for tactical or strategic reasons. When he applied for leave to cross-examine [the witness], at the conclusion of defence counsel’s cross-examination of her, he did not proffer any reason at all why he had not made an application at the conclusion of, or indeed during, evidence in chief.

The Victorian Court of Appeal accepted a Crown concession that the judge erred in granting such leave to the prosecutor at that stage of the evidence (at [188]).

Section 69 Exception – business records

Section 69 permits a court to draw reasonable inferences from the document sought to be admitted pursuant to this provision. However, the drawing of inferences from a document does not extend to using representations in the document for a hearsay purpose: see Voxson Pty Ltd v Telstra Corporation Ltd (No 10) [2018] FCA 376 at [37].

Section 87 Admissions made with authority

Section 87(1)(a) permits a previous representation made by a person to be taken to be an admission by a party if it is reasonably open to find that “(a) when the representation was made, the person had authority to make statements on behalf of the party in relation to the matter with respect to which the representation was made”. It has been emphasised that the authority must exist at the time the representation is made: Australian Securities and Investments Commission v Westpac Banking Corporation (No 2) [2018] FCA 751 at [487]–[489].

Section 90 Discretion to exclude admissions

Bell J stated in Director of Public Prosecutions (Vic) v Natale [2018] VSC 339 at [35]–[36]:

[35] The focus of the exercise of the unfairness discretion is thus upon the unfairness of the use of the admission in the trial, not the unfairness of the means by which it was obtained. At issue is the unfairness of the end, not the means. …
[…]
[36] The purpose of the discretion in s 90 is the protection of the rights and privileges of the accused and the most fundamental of those rights is the right to a fair trial. …

Section 110 Evidence about character of accused persons

In R v AKB (No 7) [2018] NSWSC 1120, it was held that, where evidence is adduced that the defendant has no criminal record, the prosecution would not be permitted to adduce evidence of uncharged acts. It is suggested that this approach is questionable – the absence of a criminal record is sought to show an absence of prior criminal conduct, which may be rebutted by proved prior criminal conduct even if not the subject of a conviction.

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

Section 122(5)(b) largely reflects the common law principle that where two persons join in a legal enterprise, the privilege is their joint privilege so that a privileged communication may be disclosed to each without loss of privilege. An interesting question not answered by this provision is whether disclosure by one client which results in loss of privilege for that client has a corresponding effect on a joint client’s privilege. At common law, waiver by one joint client is insufficient to affect the other’s privilege. Murphy J in Davaria Pty Limited v 7-Eleven Stores Pty Ltd [2018] FCA 760 accepted at [49] that the same result would flow under the Act by a distributive reading of this provision (that is, disclosure by “a client” could not result in loss of privilege for another client). Murphy J also held at [59] that an “unnamed client class member disclosed the contents of the confidential document] notwithstanding prominent and express warnings not to do so” and there was “nothing to indicate that [the joint client] knew or consented to that disclosure, either expressly or impliedly”.

Section 128 Loss of client legal privilege—consent and related matters

Section 128(6) provides that a court is to cause a witness to be given a certificate under this section if an objection has been overruled and, after the evidence has been given, the court finds that there were reasonable grounds for the objection. This provision does not deal with the situation where no objection is made before the evidence is given. The better view is that there may not be a retrospective grant of a certificate unless objection was taken prior to the evidence being given. In LGM v CAM (2011) 328 FLR 227; 46 Fam LR 118; [2011] FamCAFC 195, the Full Court of the Family Court appeared to express the view that s 128 permitted a retrospective grant of a certificate even where no objection had been taken prior to the evidence being given but this view was rejected as “plainly wrong” by Hammerschlag J in the NSW Supreme Court in Shanahan v Jatese Pty Ltd [2018] NSWSC 1097 at [39].

Section 136 General discretion to limit use of evidence

Section 136 has been utilised to ensure that the procedural limitations on evidence permitted “in reply” are complied with (where one use of evidence was relied upon “in chief” but another use was sought to made of it “in reply”): Australian Securities and Investments Commission v Whitebox Trading Pty Ltd (No 6) [2018] FCA 1077 at [49]. It was also held that to permit the second use “may well be misleading” and expose the opponent “unfairly to possible, considerable prejudice” (at [50]).

Section 137 Exclusion of prejudicial evidence in criminal proceedings

The Victorian Court of Appeal has concluded that evidence should have been excluded under s 137 where the evidence had “very little probative value” and “the danger of impermissible speculation on the part of a jury is high”: Ramaros v The Queen [2018] VSCA 143 at [28].

Section 138 Exclusion of improperly or illegally obtained evidence

• Bearing in mind that s 138 applies not only in criminal proceedings but also in civil proceedings, care must be taken in applying general statements applicable to the former in the latter. In Australian Competition and Consumer Commission v Apple Pty Ltd (No 3) [2018] FCA 617, Lee J observed at [69]:

I would have thought that the weight to be given to public policy favouring the exclusion of the evidence (including the public interest in maintaining standards of propriety by those entrusted with statutory powers) will necessarily vary depending upon the context, including whether one is considering criminal law enforcement or the activity of civil regulators. It seems to me that this context will not only be relevant at the second stage which has, as its point of departure, evidence obtained improperly or in contravention of an Australian law, but also in the anterior, first stage evaluative assessment of what is, in fact, improper in all the circumstances.

• In RRG Nominees Pty Ltd v Visible Temporary Fencing Australia Pty Ltd (No 3) [2018] FCA 404, White J referred at [40] to “the legislature’s view that the obtaining of evidence by unlawful means should be discouraged, and the integrity of the judicial system not be diminished by apparent condonation of unlawful conduct”.
• Section 138(2) refers to “an admission that was made during or in consequence of questioning”. It is not explicitly limited to police or other official questioning of a suspect in relation to a criminal offence. In Director of Consumer Affairs Victoria v The Good Guys Discount Warehouses (Australia) Pty Ltd (2016) 245 FCR 529; [2016] FCA 22, Moshinsky J applied this provision in a case where an investigator used deceptive questioning that resulted in the making of admissions. In Australian Competition and Consumer Commission v Apple Pty Ltd (No 3) [2018] FCA 617, Lee J conceded at [58] that there were arguments available to limit the provision to formal or informal interrogation of a suspect by an investigating officer for the purpose of the officer obtaining information but also noted at [59] that the text does not, in terms, direct itself only to questioning by particular types of officials conducting particular kinds of questioning. Lee J also saw merit in the proposition that limiting the application of the provision in such a way would serve to undermine the statutory purpose of regulating improper conduct in the obtaining of evidence. He did not depart from the approach taken by Moshinsky J.
• In Director of Public Prosecutions (Vic) v Natale [2018] VSC 339, a Victorian Supreme Court judge observed that “[a] number of provisions of the ICCPR specify and protect the fundamental rights and freedoms of persons who may be engaged in the processes of criminal justice” (at [67]) and that “a breach of human rights by police in the course of obtaining evidence is treated as a matter of significant importance when balancing the considerations for and against the exclusion of such evidence” (at [70]). It was held that the failure by police to arrange an interpreter for the accused and delay the questioning until one was available was an obvious case of (indirect) language discrimination contrary to article 26 of the ICCPR, that the violation of the accused’s “rights and obligations, individually and collectively, weighs heavily on the side of making undesirable the admission of the evidence because they damage the administration of justice and the rule of law and the court may thereby denounce what occurred” and that “[t]aking those considerations into account, it has not been established that the desirability outweighs the undesirability of admitting the evidence and the evidence must therefore not be admitted” (at [96]–[98]).

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