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May 2017

• Section 41 Improper questions
• Section 46 Leave to recall witnesses
• Section 55 Relevant evidence
• Section 71 Exception—electronic communications
• Section 75 The opinion rule
• Section 90 Discretion to exclude admissions
• Section 97 The tendency rule
• Section 118 Legal advice
• Section 130 Exclusion of evidence of matters of state
• Section 131 Exclusion of evidence of settlement negotiations
• Section 131A Application of Part to preliminary proceedings of courts
• Section 165B Delay in prosecution

Updated 11 May 2017

Section 41 Improper questions

As regards cross-examination of children and other potentially “vulnerable” witnesses, UEL courts have provided limited guidance, in contrast with the position in the United Kingdom. However, in Ward v The Queen [2017] VSCA 37, Maxwell P and Redlich JA of the Victorian Court of Appeal reviewed the academic literature, law reform discussion and the United Kingdom authority at length. It was noted (at [100]) that “[a] child’s immaturity necessarily limits their capacity to understand the process in which they are participating and to appreciate the importance of what they say when subjected to cross-examination” and the proposition that “children have been shown to experience much higher levels of communication difficulty in the justice system than was previously recognized” was endorsed. Reference was made to various “suggestions” for “providing best practice guidance in questioning a vulnerable person or someone with communication needs” (see [111] – [114]). However, while noting the terms of this provision (and s 42), Maxwell P and Redlich JA were reluctant to be prescriptive. Rather, support was given to such procedures as “witness intermediaries” and pre-evidence hearings “at which the parties can discuss the capacity of the child witness” (at [132]). Then it was observed (at [133]) that:

It may become apparent at the pre-hearing that an expert (to be engaged by the Crown) will assist the Court in better understanding the capacity of the child. The parties may agree as to what types of questions will be appropriate in cross-examination. Failing agreement, the judge may foreshadow a disposition not to allow certain types of questions. Or, where it is clear from the material available to the judge, including the child’s VARE, the judge may disallow particular questions because of their form or content. Such a pre-trial hearing will in most cases reduce the prospect of the judge having to intervene during the trial. And it will provide defence counsel with guidance as to the form which the cross-examination may take.

Section 46 Leave to recall witnesses

In Ward v The Queen [2017] VSCA 37, Maxwell P and Redlich JA of the Victorian Court of Appeal observed that discharge of “counsel’s obligation of fairness as expressed in the rule in Browne v Dunn” (at [119]) “requires that the child be given a fair opportunity to make clear whether he or she adheres to the account” (emphasis added) given to the authorities (at [122]). Since the obligation is an aspect of procedural fairness, “its content varies according to the circumstances of the case”. Thus, while it may be assumed that “an adult witness has the cognition, and the independence of will, to reject questions which contain a suggestion or assertion of the existence (or non-existence) of a particular fact … [s]uch assumptions cannot be made in the case of a child witness” because “a child’s vulnerability and the likelihood that they will assent to suggestive questions increase the risk that the child will give answers that are contradictory” (at [121]). In respect of “a child witness whose age or capacity renders them vulnerable”, while counsel is required “to address those specific allegations made by the child which the defence disputes”, “[s]imply to ‘put’ matters which the child accepts will be unlikely, for the reasons already explored, to discharge” the obligation (at [123]). Thus, in a case of alleged indecent assault of a young child, to simply ask a suggestive “tag question” such as “[Defendant] did not touch you, did he?” is unlikely to discharge the obligation – without also asking the child whether her or his initial account “is true?” (at [123] – [126]). Of course, as pointed out by Maxwell P and Redlich JA (at [135]), if counsel failed to ask the latter question, the prosecutor may ask it in re-examination.

Section 55 Relevant evidence

• In Director of Public Prosecution (Vic) v Massey [2017] VSCA 38 the Victorian Court of Appeal held that evidence of the finding of a murder victim’s DNA on the defendant’s shoes and inside his vehicle was not relevant because he was the (estranged) husband of the victim and, notwithstanding that they had been separated for three years, it would be “wholly speculative” to infer that the DNA was placed in those locations in consequence of the defendant murdering her – there was “no rational basis for finding that the method of transfer was connected with the killing”: Director of Public Prosecution (Vic) v Massey [2017] VSCA 38 at [3], [14], [78] – [87].

• In Rhodes v O'Neill [2017] TASFC 1, Estcourt J held at [32] – [33] that an inference should be drawn that the evidence of a potential witness who had not been called by the respondent would have been “damaging” to the case of the respondent (because “the only way in which the evidence … could ‘not have assisted’ the respondent's case would be by [the witness] confirming” the appellant’s case in a particular respect). However, Estcourt J was in dissent and the other members of the Court held that the trial judge “was not entitled to use the failure to call [the witness] as a basis for inferring facts which were unfavourable to the respondent's case” (Brett J at [57], Wood J agreeing at [1]).

• In Falzon v The Queen [2017] VSCA 74 the Victorian Court of Appeal considered another case involving application of this provision. When the police searched the applicant’s premises on 17 December 2013, they found a hydroponic facility with cannabis plants growing and plant stumps from which cannabis had already been harvested. The estimated value of the cannabis already harvested was more than $16,000. On the same day, the police raided the applicant’s home and found $120,800 in cash secreted at various locations throughout the house, as well as various items related to the cultivation of cannabis. Initially, the applicant was charged with cultivating and trafficking cannabis “between 24 July and 17 December 2013” but this was changed to cultivating and trafficking cannabis “on 17 December 2013”. The trafficking alleged was based on possession of cannabis for the purpose of sale. The applicant admitted possession of the cannabis but told police the cannabis was for personal use (and for friends) and not for sale. On appeal, the issue was whether the evidence of the finding of the cash at the applicant’s home was relevant to the fact in issue of whether the cannabis was possessed for sale. At trial, this evidence had been admitted to show that the applicant was in the business of selling cannabis and it was held that this was relevant to the issue of whether the cannabis found on 17 December 2013 was possessed for sale. Priest JA and Beach JA held that it was not, emphasizing the importance of the change made by the prosecution to the charge against the applicant.  Instead of charging an offence alleging trafficking over an extended period, the charge was only in respect of the single day when the cannabis was found in the applicant’s possession. Priest JA and Beach JA stated at [146]:

In our view, insofar as the evidence of the possession of the cash was admitted on the basis that it was evidence of past trafficking, it was irrelevant and therefore inadmissible. At the risk of repetition, the cultivation and trafficking … related to … one day. … [W]ith respect to the trafficking, the prosecution eschewed reliance on a … case that involved an allegation of an ongoing drug trafficking business. Thus, as a matter of logic, it is impossible to say that the evidence of cash at the applicant’s home — from which it was not said that he conducted any ongoing illicit business — could have gone in proof of his having possession of cannabis for sale … on a single day in December 2013.

The difficulty with this analysis is that (as the other member of the Court pointed out) the prosecution did not “eschew … a case that involved an allegation of an ongoing drug trafficking business”. While the charge itself alleged possession for sale on a particular day, the prosecutor at the trial maintained a case that the appellant was in a continuing business of drug trafficking. Whelan JA, in dissent, noted at [59] – [61] that the prosecutor at the trial relied on the cash to support a contention that the applicant was engaged in an “illegal business” of selling drugs – the cash, and other items found, were “indicia of trafficking”.  Whelan JA stated at [68]:

The fact that under an earlier indictment the prosecution had charged the applicant with trafficking over a period of time … and had then abandoned charges on that basis alleging possession for the purpose of sale on one particular day, is not significant, in my view. … The prosecution did eschew [charges based on conduct over a period of time]. But the prosecutor did not eschew reliance on the contention that … the secreted cash [was] indicia of a drug trafficking business then being conducted by the applicant.

That analysis appears persuasive. The charge brought was a matter for prosecutorial discretion. The prosecutorial decision to narrow the scope of the charge by charging trafficking on a single day did not preclude a conclusion that the finding of the cash was relevant to a fact in issue in the proceeding. Whether or not the applicant was engaged in such a business was not a “fact in issue” (in the sense of a factual element of the charged offence) but evidence tending to show that he was engaged in such a business was relevant to what was the fact in issue – whether the cannabis was possessed for sale on that day. The applicant’s possession of the cash on that day permitted an inference that he was, on that day, active in a business of drug trafficking and, accordingly, increased the probability that the cannabis was possessed for sale.  The fact that the charge itself did not allege a continuing business of drug trafficking did not bar the prosecution from contending that he was engaged in such a business.

Section 71 Exception—electronic communications

This provision operates to create an exception to the hearsay rule for the specified representations. However, that does not necessarily mean that the evidence of the representation will be admissible in the proceeding: Prior v Wood [2017] FCA 193 at [78]. For example, a representation as to “the identity of the person from whom or on whose behalf the communication was sent” may not satisfy the requirement of relevance if there is no evidence on the basis of which it could reasonably be found that the represented identity was the true identity (see ss 55-58).

Section 75 The opinion rule

Even evidence expressed in the form of a “conclusion” may not be caught by this provision if it constitutes a summary or general statement about observed facts and does not involve the drawing of inferences from those facts: see Britt v Britt [2017] FamCAFC 27 at [40] – [41], [48] – [50], [55].

Section 90 Discretion to exclude admissions

In R v DRF [2015] NSWCCA 181, the NSW Court of Criminal Appeal concluded that there was no relevant unfairness in circumstances where the police encouraged a complainant to act as a state agent and seek to elicit admissions (in a conversation recorded under warrant) from a suspect who had refused to answer police questions.  Simpson JA emphasised (at [89] – [99]) that, notwithstanding that the police plainly intended to circumvent the suspect’s assertion of his right to silence, what was said by the suspect was reliable, the recording provided a reliable record of what was said, the warrant had been granted by a Supreme Court justice, there was no element of coercion and the conversation might easily have occurred without police intervention. Leeming JA emphasised (at [4]) that there was no suggestion of “deceptive conduct by the complainant” (other than failing to inform the suspect that the conversation was being recorded by the police) and that the suspect knew there was an ongoing police investigation (at [6]). It is apparent that the fact that the police use an agent to circumvent an assertion of the right to silence will not, by itself, result in exclusion under this provision.

Section 97 The tendency rule

• In the Full Court of the Family Court it has been accepted that evidence of “family violence” may be relevant for the purpose of showing that the contributions towards the property of the parties and the welfare of the family by the victim of that family violence were made “more onerous” by the behaviour of the perpetrator: Britt v Britt [2017] FamCAFC 27 at [31], [33]. Such a use does not involve tendency reasoning because the evidence is not being used to show a tendency to act in a particular way, or have a particular state of mind, and to infer behaviour in conformity with that tendency on a particular occasion.

• In Kapanadze v The Queen [2017] NSWCCA 69, the NSW Court of Criminal Appeal held (at [65]) that certain evidence could be used as tendency evidence to show a sexual interest in the complainant but accepted (at [66]) that it could also be used as non-tendency evidence “to corroborate the complainant’s evidence” about the incident.

Section 118 Legal advice

A confidential document prepared for the dominant purpose of a lawyer providing legal advice to a client (s 118(c)) can only be the subject of an objection under this provision by that client: see Australian Securities & Investments Commission v Whitebox Trading Pty Ltd [2017] FCA 324 at [90], [124].

Section 130 Exclusion of evidence of matters of state

There is no doubt that the common law of public interest immunity will assist in informing of the content and operation of this provision. However, the statutory structure should be followed. As Basten JA observed in Ku-ring-gai Council v West [2017] NSWCA 54 at [85]:

That requires identification of the scope, content and importance of (a) the public interest in admitting information or a document into evidence, and of (b) the public interest in preserving secrecy or confidentiality in relation to that information or document. It is only when the latter outweighs the former that the court is empowered to direct that the information or document not be adduced in evidence.

Claims that secrecy is a necessary condition for candour and the efficient operation of government will require careful scrutiny in the particular circumstances of the case and “the extent of protection required will depend to some extent on the general subject matter with which the documents are concerned” (Sankey v Whitlam (1978) 142 CLR 1; [1978] HCA 43 at 43; cited with approval in Commonwealth v Northern Land Council (1993) 176 CLR 604 at 616-617). Thus, for example, a claim based on a need for candour with respect to a document submitted to Cabinet will be weakened where it was always understood that there would be a subsequent public inquiry and where the authors of the document would not have made an assumption of confidentiality: Ku-ring-gai Council v West [2017] NSWCA 54 at [90] – [92].

Section 131 Exclusion of evidence of settlement negotiations

In Royal v El Ali (No 4) [2017] FCA 299, Davies J held (at [29]) that an issue as to whether a court should approve an agreement to compromise debts is not an issue regarding the “making of” the agreement for the purposes of the exception in s 131(2)(f).

Section 131A Application of Part to preliminary proceedings of courts

In Ku-ring-gai Council v West [2017] NSWCA 54 it was accepted (see Basten JA at [78]) that, where determination of the objection to providing a document pursuant to a disclosure requirement required application of s 130 (“Exclusion of evidence of matters of state”) that one “necessary modification” of s 130 must be to place in the scale weighed against the public interest in preserving secrecy or confidentiality, the public interest in the production of the document to the party issuing the disclosure requirement (rather than “the public interest in admitting [the document] into evidence”).

Section 165B Delay in prosecution

Section 165B(6)(a) provides that “delay includes delay between the alleged offence and its being reported”.  However, it is not limited to such delay. The delay may also extend to a delay in the defendant being informed about the complaint. It was observed by Buss P in the Western Australian Court of Appeal, in respect of the common law, that a defendant will not have been informed of a complaint unless the information given is reasonably consistent with, and includes reasonable particulars of, the offences subsequently alleged and the nature and content of the information is reasonably adequate to enable the defendant to make inquiries about the allegations and to marshal a defence: RMD v Western Australia [2017] WASCA 70 at [130]. However, the other two members of the Court did not regard it as necessary or desirable to formulate a general statement of principle such as this: Beech J at [197], Mazza JA agreeing at [181].

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