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March 2017

• Introduction
• Section 42 Leading questions
• Section 55 Relevant evidence
• Section 81 Hearsay and opinion rules — exception for admissions and related representations
• Section 165B Delay in prosecution

Updated 2 March 2017

Introduction

In Nguyen v The Queen [2017] NSWCCA 4, Basten JA held that the “general law” relating to voice identification evidence applied to render it admissible in a trial. The other members of the Court did not directly address this issue but proceeded on the assumption that the Act was applicable (see RA Hulme J at [83]; Schmidt J at [102]). The reasoning of Basten JA appears to have been that the Act treats “identification evidence as falling outside the exclusionary opinion rule” in s 76 and the general law rules relating to voice identification evidence continue to apply because the exclusionary rules in the Act dealing with identification evidence (s 114 and s 115) do not apply to voice identification evidence. This reasoning may be criticised on at least two bases. First, it is a fundamental error to assume that the different Parts in Ch 3 are mutually exclusive so that if evidence falls within the definition of “identification evidence” for the purposes of Pt 3.9, it cannot be “opinion evidence” for the purposes of Pt 3.3. As the High Court held in Lithgow City Council v Jackson (2011) 244 CLR 352; 85 ALJR 1130; [2011] HCA 36 at [19], the opinion rule in s 76 applies to hearsay evidence (evidence to which Pt 3.2 applies) of opinion. Equally, it would apply to “identification evidence” that falls within the scope of s 76. Second, the fact that s 114 and s 115 do not apply to voice identification evidence does not mean that the common law has application. Rather, the relevance test in s 55 applies and there is the possibility of discretionary exclusion under Pt 3.11: R v Adler (2000) 52 NSWLR 451; 116 A Crim R 38; [2000] NSWCCA 357 (NSWCCA); R v Riscuta [2003] NSWCCA 6 at [34]; R v Madigan [2005] NSWCCA 170 at [92]. Basten JA acknowledged this in a different part of his judgment (at [17]–[18]). In those circumstances, a common law rule of “admissibility” would be inconsistent with the Act and abrogated by s 56(1).

Section 42 Leading questions

It is suggested that the first issue which the court should consider in deciding whether to disallow a leading question (or direct a witness not to answer it) is whether the facts concerned would be better ascertained if a leading question was not used: s 42(3). If not “satisfied” of this, the court should consider the factors in s 42(2). However, in R v A2 (No 14) [2015] NSWSC 1544, Johnson J appears to have proceeded on the basis that even if one or more of the circumstances in s 42(2) are present, a court may not disallow a leading question (or direct that it not be answered) unless the court is satisfied that the facts concerned would be better ascertained if leading questions were not used. That appears to be erroneous. Section 42(3) does not provide that a “court is to disallow” a leading question (or direct that it not be answered) “only if unless the court is satisfied that the facts concerned would be better ascertained if leading questions were not used”. Section 42(1) and s 42(2) confer a discretion on the court to disallow a leading question (or direct that it not be answered), while s 42(3) provides that the court has no discretion in one situation.

Section 55 Relevant evidence

In Nguyen v The Queen [2017] NSWCCA 4, RA Hulme JA held at [91] that the relevance test was satisfied where a police officer, identifying a recorded voice as the defendant, relied upon the overall sound of the voice as well as attributes he was able to articulate and that “[t]he amount of time he invested in repeatedly listening to the calls and the [defendant’s] police interview is something that would have been impractical for the jury to replicate” (see also Schmidt J at [105]).

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

The NSW Court of Criminal Appeal has accepted that a statement in a deed constituted a representation of the actual facts, as understood by the parties to the deed, and thus capable of being an “admission”: Taylor v The Queen [2017] NSWCCA 2 at [50].

Section 165B Delay in prosecution

In TO v The Queen [2017] NSWCCA 12, the NSW Court of Criminal Appeal at [176]–[183] accepted the correctness of the view of the Victorian Court of Appeal in Greensill v The Queen (2012) 37 VR 257; 226 A Crim R 416; [2012] VSCA 306 (expressed prior to the effective repeal of this provision in the Victorian Act and the enactment of the Jury Directions Act 2015) that s 165B(5) does not abrogate the common law obligation of a trial judge to give any direction necessary in the circumstances to avoid “a perceptible risk of [a] miscarriage of justice”. The NSW Court of Criminal Appeal held at [183] that, in the circumstances of that case, a direction was not necessary to avoid a perceptible risk of a miscarriage of justice because no “significant forensic disadvantage” had been established. The forensic disadvantage arising from delay must have been suffered – it is not sufficient that it may have been suffered. There must be more than “mere supposition”: TO v The Queen [2017] NSWCCA 12 at [183].

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