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.

February 2016

• Section 32 Attempts to revive memory in court
• Section 55 Relevant evidence
• Section 69 Exception: business records
• Section 79 Exception: opinions based on specialised knowledge
• Section 81 Hearsay and opinion rules: exception for admissions and related representations
• Section 97 The tendency rule
• Section 98 The coincidence rule
• Section 101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution
• Section 108C Exception: evidence of persons with specialised knowledge
• Section 124 Loss of client legal privilege: joint clients
• Section 126K Journalist privilege relating to identity of informant
• Section 130 Exclusion of evidence of matters of state
• Section 136 General discretion to limit use of evidence
• Section 137 Exclusion of prejudicial evidence in criminal proceedings
• Section 138 Discretion to exclude improperly or illegally obtained evidence

Updated 11 February 2016

Section 32 Attempts to revive memory in court

If a document by a witness to try to revive his or her memory is read out in court pursuant to s 32(3), the evidence is to be treated as testimony by the person reading it, rather than as hearsay evidence (that is, it is treated as in-court evidence rather than “evidence of a previous representation” for the purposes of s 59): see Amaca Pty Ltd v CSR Ltd [2015] VSC 582 at [177]–[178].

Section 55 Relevant evidence

In Trkulja v Markovic [2015] VSCA 298, the Victorian Court of Appeal observed at [95] that “where the absent witness or party is the only person capable of giving evidence on a particular issue in dispute, his or her failure to enter the witness box may attain a particular significance. … [A]lthough the silence of one party cannot fill the place of actual evidence on an issue, it may serve to resolve a doubt or an ambiguity, especially where the facts are peculiarly within the knowledge of the silent party. In these circumstances, a failure to call or give evidence may have more than ordinary significance.” (citing Tozer Kemsley & Millbourn (A/asia) Pty Ltd v Collier's Interstate Transport Service Ltd (1956) 94 CLR 384; [1956] HCA 6 at 403 (CLR)).

Section 69 Exception: business records

• Section 69(1)(b) requires that the document “contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business”. As Reeves J observed in Asden Developments Pty Ltd (in liq) v Dinoris (No 2) [2015] FCA 1025 at [11], “the representation can be made or recorded in the document in the course of the business – that is, how it comes into existence – or it can be recorded in the document for the purposes of the business – that is, why it comes into existence”. While in many, if not most, circumstances, the means by which, and the purposes for which, the representation comes into existence will exclusively serve the same business, in some cases the representation will be prepared in the course of one business and be partly prepared for the purposes of that business and partly for the purposes of another business. An invoice found in the records of A purporting to be for goods or services supplied by B to A (and prepared by B) may be a business record of A. Reeves J explained at [13] that this was so “because invoices are almost invariably prepared in the course of the business of A, for example, an invoice which describes the work A claims to have performed and the amount it claims to be owed for that work. And they are almost always prepared for the dual purposes of the business of A and the business of B, that is, the business for whom A did the work and to whom it usually sends the invoice”.
• In Traffic Calming Australia Pty Ltd v CTS Creative Traffic Solutions Pty Ltd [2015] VSC 741, Almond J at [112] relied on s 183 to draw inferences from the documents in question tendered under this provision to conclude that they were not business records.

Section 79 Exception: opinions based on specialised knowledge

The court must be satisfied that the particular opinion in question “is wholly or substantially based on” the person’s specialised knowledge. Thus, for example, a general statement that “[t]he opinions contained in this report are those of my own and are based wholly or substantially on the knowledge set out under section 1.3.1 of this report”, which section merely lists the person’s expertise and qualifications at a very general and abstract level, would not be sufficient: Fonterra Brands (Australia) Pty Ltd v Viropoulos (No 2) [2015] FCA 974 at [20].

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

As a practical matter, if there is admissible evidence available to the prosecution of previous representations of a defendant that contain both inculpating and exculpating material, fair presentation of the prosecution case will ordinarily require that the prosecution lead all that evidence. This may be the explanation for the ruling of the Victorian Court of Appeal in Theodoropoulos v The Queen [2015] VSCA 364 at [110] that a part of a police interview where the defendant speculated about possible motives for the complainant making allegations against him (and sought to be admitted by the defence) should not have been excluded.

Section 97 The tendency rule

• In Velkoski v The Queen (2014) 242 A Crim R 222; [2014] VSCA 121, the Victorian Court of Appeal stated at [171]: “In order to determine whether the features of the acts relied upon permit tendency reasoning, it remains apposite and desirable to assess whether those features reveal ‘underlying unity’, a ‘pattern of conduct’, ‘modus operandi’, or such similarity as logically and cogently implies that the particular features of those previous acts renders the occurrence of the act to be proved more likely”. Curiously, in Hughes v The Queen [2015] NSWCCA 330, the NSW Court of Criminal Appeal at [188] was critical of this passage, on the basis that this provision does not “require that there be an ‘underlying unity’, a ‘pattern of conduct’, or the like”, yet the Victorian Court of Appeal only stated that it was “apposite and desirable” to consider these matters, a proposition adopted in a number of NSW judgments (see R v Fletcher (2005) 156 A Crim R 308; [2005] NSWCCA 338 at [60]), just as it was accepted by the Court in Hughes that “the greater the similarities, the more readily will a court find that that the evidence has significant probative value”.
• The High Court has granted special leave to appeal in respect of the question whether, in assessing “probative value” for the purposes of s 97(1)(b), the court is required to assume that the evidence “will be accepted”: IMM v The Queen [2015] HCATrans 266 (16 October 2015).

Section 98 The coincidence rule

In Page v The Queen [2015] VSCA 357, a case where it was argued that the improbability of coincidence made it more probable that the accounts given by several complainants of the respective events/ circumstances were true, it was stated at [57]:

There is no requirement of “unity”, “connection” or “pattern” over and above the requirement of cogency in the common features or similarities. Thus, there might be a single unusual feature of the alleged offending, or of the circumstances, which recurs in the descriptions given by the respective witnesses. The very distinctiveness of that feature might be sufficient to support “improbability of coincidence” reasoning, despite there being no other similarities or, at least, none which would attract the description “underlying unity” or “pattern of conduct”. As this Court said in Velkoski, the greater the number of complainants, the less distinctive or similar the evidence need be to satisfy coincidence reasoning.

It was observed at [59] that “[l]ogically, however, once the identified similarities can be said to raise the improbability of coincidence — and hence give the evidence its probative value — the existence of dissimilarities will not diminish that probative value.”

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

Where an application is made to cross-examine a witness on the voir dire regarding possible concoction or contamination, the increasingly common view in NSW is that this should generally not be permitted because “contestable questions of credibility and reliability resting on the possibility of contamination or concoction” are “a matter for the jury”, not the trial judge: see Hughes v The Queen [2015] NSWCCA 330 at [98].

Section 108C Exception: evidence of persons with specialised knowledge

This provision must be applied in respect of each opinion sought to be given by the witness. Thus, a sociolinguist may be able to give evidence regarding a number of features of the way Aboriginal people respond to questioning about past events but not permitted to express an opinion as to examples of problems of intercultural communication (such as gratuitous concurrence) seen in the transcript of evidence given by four Aboriginal witnesses: Wotton v Queensland (No 4) [2015] FCA 1075.

Section 124 Loss of client legal privilege: joint clients

Care should be taken with common law authorities on joint privilege, since while under the common law privilege attaching to evidence of communications between one or more parties to civil litigation and a lawyer whom they have jointly retained can be waived only with the concurrence of all privilege holders, this provision has the effect that “joint client legal privilege over evidence is lost where it is adduced by one of the joint privilege holders in connection with the same matter”: Jess v Jess [2015] FamCA 822 at [57].

Section 126K Journalist privilege relating to identity of informant

In Madafferi v The Age Company Ltd [2015] VSC 687, Dixon J observed at [44] that “the proper approach to considering whether to require disclosure of the identity of sources is:

(a) First, to identify the issues in the proceeding that determine the context of the application;

(b) Second, to identify the public interest in disclosure in the context of those issues that is advanced by the plaintiff;

(c) Third, to assess the degree of significance, or weight, to be attributed to that public interest;

(d) Fourth, to identify the likely adverse effect of an order for disclosure on the informant and others;

(e) Fifth, to identify the public interest in a free and informed press and in investigative journalism;

(f) Sixth, to assess the degree of significance, or weight, to be attributed to that public interest;

(g) Seventh, to weigh up the competing considerations according to the significance, or weight, attributed to them to answer whether the public interest in disclosure outweighs the other interests.

As regards the balancing test, Dixon J pointed out at [46]–[47] that the matters to be weighed may be described as “incommensurable”. He stated at [47]:

The public interest in the disclosure of the informant goes to the fairness of the trial of the issues raised in the proceeding, the interests of justice. The issues of likely adverse effect and public interest in facts and opinions communicated by an informed media have nothing to do with the fairness of the trial process, but a great deal to do with the proper functioning of a free democratic society under the rule of law. The only sense in which one set of considerations can outweigh the other is by a value judgement, which requires the attribution of weight, or degree of significance, to the factors being considered, but not for a calculation.

He added at [54] that the provision contemplates

… that there can be circumstances in which the disadvantages to the [party seeking disclosure] in assessing the strength of the defendants’ defence may be a price that has to be paid, given the strength of the countervailing public interest. The public interest in free flow of information may outweigh other public interests which apply in relation to the production of documents for the purposes of litigation. Each decision will turn on the particular circumstances.

Dixon J also identified particular issues that may arise when a qualified privilege (or other) defence makes the identity of the source relevant. An appropriate question would be: “To what degree will the conduct of a fair trial for the benefit of the [party seeking disclosure] be impaired by maintaining confidentiality of sources?” He added at [51]:

First, it is not necessary for a fair trial to be had that there be complete, or perfect, disclosure of all relevant and admissible evidence. Secondly, whether a fair trial is being conducted in the court is, quintessentially, an assessment to be made by the trial judge, who is best placed to make that assessment on the basis of the issues that remain to be determined at trial; on the pleadings, in the light of counsel’s opening statements, and on examination and cross-examination of witnesses and other relevant circumstances that occur in the course of the trial.

Section 130 Exclusion of evidence of matters of state

• In Ryan v Victoria [2015] VSCA 353, the Victorian Court of Appeal rejected an argument that “the proper functioning of government” should be confined to deliberations at the highest level of executive government. Tate JA emphasized at [115] that the provision “is addressed not simply to the character of the information involved but more expressly to the effect the disclosure of the information would have on the functioning of the workings of government”. It was held at [122] that the operations of the police was an important government function to which this provision applied, in that release of confidential police internal records “may inhibit or frustrate effective policing to the general detriment of the public” and thereby “prejudice the proper functioning of the government of the State”.
• In Obeid v Ipp [2015] NSWSC 1755, Davies J considered that it would not be appropriate to put in place a confidentiality regime (as an alternative to non-disclosure) in a case where the information in question related to an informer and “the physical safety of a person is concerned” (at [28]).

Section 136 General discretion to limit use of evidence

In TJ v Western Australia (No 3) [2015] FCA 1359, Rares J at [10] noted the observation of Cooper J in Lardil Peoples v State of Queensland [2000] FCA 1548 at [26] that s 60 “does not give to the hearsay evidence a weight or cogency which the circumstances do not warrant” when concluding (at [9]) that he saw no basis for the application of s 136 in respect of hearsay information relied upon by an expert witness in preparing his report (and to which the hearsay rule did not apply by reason of the operation of s 60).

Section 137 Exclusion of prejudicial evidence in criminal proceedings

• In Dickman v The Queen [2015] VSCA 311, a majority of the Victorian Court of Appeal held that identification evidence should have been excluded under this provision, stating that “the probative value of the impugned evidence was outweighed by the risk of unfair prejudice” because the probative value was “slight” and “there is a seductive quality to identification evidence that is difficult to ameliorate by judicial direction” (Priest JA and Croucher AJA at [111]). Whelan JA dissented on the basis that the trial judge was “correct” in considering that “notwithstanding the factors which made the evidence less probative, the risk or danger of misuse was minimal”.
• The High Court has granted special leave to appeal in respect of the question whether, in assessing “probative value” for the purposes of this provision, the court is required to assume that the evidence “will be accepted”: IMM v The Queen [2015] HCATrans 266 (16 October 2015).

Section 138 Discretion to exclude improperly or illegally obtained evidence

The ACT Court of Appeal held in Heyward v Bishop [2015] ACTCA 58 at [75] that even if the excessive use of force by the police rendered a person’s custody unlawful or “tainted”, breath analysis evidence subsequently obtained while the person was in that police custody “was not obtained as a result of that use of force and was not achieved either by or as a consequence of the use of excessive force”. 

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