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December 2015

• Section 81 Hearsay and opinion rules: exception for admissions and related representations
• Section 91 Exclusion of evidence of judgments and convictions
• Section 95 Use of evidence for other purposes
• Section 97 The tendency rule
• Section 97 The coincidence rule
• Section 101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution
• Section 102 Credibility evidence
• Section 110 Evidence about character of accused persons
• Section 114 Exclusion of visual identification evidence
• Section 137 Exclusion of prejudicial evidence in criminal proceedings
• Section 138 Discretion to exclude improperly or illegally obtained evidence
• Section 165 Unreliable evidence

Updated 1 December 2015

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

The Full Court of the Federal Court has accepted that a statement in an agreement is capable of constituting an admission: Wu v Li [2015] FCAFC 109 at [21]–[32].

Section 91 Exclusion of evidence of judgments and convictions

As Simpson J explained in Attorney General (NSW) v Martin [2015] NSWSC 1372 at [13], whether this provision operates to exclude the use of decisions or judgments "will depend upon an analysis of three things – (i) what facts were in issue in those proceedings; (ii) what facts were found in the decisions; and (iii) the use to which the [party adducing the evidence] seeks to put those judgments – that is, what facts [the party] seeks to prove by their use".

Section 95 Use of evidence for other purposes

Evidence may initially be admitted for another purpose and then a ruling made at a later stage as to whether the evidence can be used in the prescribed way as tendency or coincidence evidence (or both): see R v Cornell [2015] NSWCCA 258 at [106].

Section 97 The tendency rule

As regards creating an exception to the notice requirement in s 97(1)(a), it would not be sufficient for the purposes of s 97(2)(b) that another party has made a submission, rather than adduced evidence, which the tendency evidence is adduced to explain or contradict: Martin v The Queen [2015] ACTCA 38 at [43]. Further, the evidence adduced by the other party must be "tendency evidence" to which the requirements of s 97 applied: Martin v The Queen [2015] ACTCA 38 at [43], [46]. The evidence must have been adduced to prove that a person has or had a tendency to act in a particular way or to have a particular state of mind. Despite the language of "adduced", the other tendency evidence must have been admitted: compare Martin v The Queen [2015] ACTCA 38 at [46].

Section 97 The coincidence rule

Once it had been determined that evidence of two or more "events" can be admitted for coincidence reasoning then there is no justification for restricting the tribunal of fact from considering all the "similarities in the events or the circumstances in which they occurred" as part of the process of determining whether or not the events occurred coincidentally: R v MR [2013] NSWCCA 236 at [79]; R v Cornell [2015] NSWCCA 258 at [71].

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

• The fact that other evidence is available to prove some fact that the evidence in question is said to be relied upon to prove without tendency or coincidence reasoning does not necessarily mean that it is "really" being used as "tendency evidence" or "coincidence evidence" – "it has never been the case that [a party] is shut out from adducing evidence because it has other evidence available to prove the same point" (Masri v The Queen [2015] NSWCCA 243 at [56]).
• In Masri v The Queen [2015] NSWCCA 243, evidence that the appellant was participating "in the importation of containers at a time very close in time to" another container importation was held admissible to "support an inference of continued substantial participation" (and was not properly characterised as "tendency evidence" or "coincidence evidence").
• Where there is prosecution reliance on the similarities in the accounts of two or more witnesses (submitted to make it improbable that the witnesses are telling lies in the absence of joint concoction or contamination), directions will be necessary regarding that process of reasoning: compare R v C, CA [2015] SASCFC 143 at [23]–[35].

Section 102 Credibility evidence

When a joint trial is held, involving multiple defendants, in legal theory there is not one trial but several. In a joint criminal trial involving two defendants (D1 and D2), for example, evidence admitted in the trial against D1 may not be admissible for or against D2, and in that situation must be disregarded in the trial of D2 (and if that is impossible, the trials should be separated): see general discussion at [EA.56.180]. Where the credibility of a prosecution witness, W, is in issue, and W is corroborated in some respect by a previous representation by D1, that credibility enhancement of W (which logically might support the general credibility of W, including with respect to evidence given by W against D2) may not be taken into account when assessing the prosecution case against D2: R v Vu Ngoc Pham [2004] NSWCCA 190, Hulme J (Spigelman CJ agreeing) at [6]–[8]; Destanovic v The Queen [2015] VSCA 113, Weinberg and Beach JJA at [102].

Section 110 Evidence about character of accused persons

Pursuant to s 110(2) or (3), evidence may be adduced to prove (directly or by implication) that the accused is not generally, or in a particular respect, a person of good character. Further, there may be evidence admitted in the proceeding of conduct of the defendant which bears on the weight to be given the evidence of good character. In those circumstances, the evidence of that conduct could be used to reduce the weight to be given to the evidence of good character although it must not be used as evidence of bad character (unless that tendency use is permitted pursuant to s 97 and s 101):  see Habib v The Queen [2015] NSWCCA 261.

Section 114 Exclusion of visual identification evidence

Any common law requirements for admissibility of aural identification evidence did not survive the enactment of this Act: R v Adler (2000) 52 NSWLR 451; 116 A Crim R 38; [2000] NSWCCA 357 at [13]–[14]; Miller v The Queen [2015] NSWCCA 206 at [55].

Section 137 Exclusion of prejudicial evidence in criminal proceedings

When assessing "probative value", the court must take into account the use that the party adducing the evidence seeks to make of the evidence. Evidence may be relevant and otherwise admissible in more than one way. If the party adducing the evidence indicates that the evidence will only be relied upon for one of those relevant purposes, the assessment of "probative value" must be in relation to that use of the evidence, notwithstanding that the evidence may rationally affect the assessment of the probability of the existence of a fact in issue by another potential use of it: see, for example, Director of Public Prosecutions (NSW) v Ridley [2015] NSWSC 1478 at[44]–[47]. However, the risk that the evidence might be used (albeit impermissibly) in that second way by the tribunal of fact may bear on the assessment of danger of unfair prejudice.

Section 138 Discretion to exclude improperly or illegally obtained evidence

• In Martin v The Queen [2015] ACTCA 38, the ACT Court of Appeal was not satisfied that evidence of conversations recorded by listening devices was obtained by the police as a consequence of the unlawful arrest of the appellant (one of the participants to the conversation) – the listening devices could have been installed even if the appellant had been in the premises, and it could not be inferred that the reason for arresting the appellant was to allow for the installation of the devices (at [64]–[66]).
• The view adopted in Gedeon v The Queen (2013) 237 A Crim R 326; [2013] NSWCCA 257 that there was no "recklessness where" there was "a bona fide belief" in the lawfulness of what was done (at [212]) has been regarded as "authoritative": R v Gallagher [2015] NSWCCA 228 at [50]. "Reckless" is not to be equated with "negligent": R v Gallagher [2015] NSWCCA 228 at [52].

Section 165 Unreliable evidence

In Boyer v The Queen [2015] VSCA 242, Priest JA observed at [39] that he "incline[d] to the view" that "it is enough – subject to s 165(3) – that the evidence may be of a kind or class of evidence that may be unreliable, without there being a necessity to make any assessment of the account of the particular witness". However, it was not necessary to come to a final view (at [40]). See also Kyrou JA at [83] and Kaye JA at [84]–[90]).

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