Section 9 Application of common law and equity

• In Pfizer Ireland Pharmaceuticals v Samsung Bioepis AU Pty Ltd (2017) 351 ALR 103; [2017] FCAFC 193, the Full Court of the Federal Court held that r 7.23 of the Federal Court Rules 2011 (Cth) did not render this Act inapplicable (Allsop CJ at [79], Perram J at [156]–[157]).
• In Schanker v The Queen [2018] VSCA 94, the Victorian Court of Appeal observed at [49] that “the [common law] doctrine of res gestae is embodied, to varying degrees, in a number of the provisions” in Pt 3.2, particularly s 65(2)(b) and (c), s 66(2)(b) and s 66A.

Section 18 Compellability of spouses and others in criminal proceedings generally

The court must satisfy itself (if there is a jury, in the jury’s absence) that a person who may have a right to make an objection under this section is “aware of the effect” of the section as it may relate to that person. The person needs to be aware not only of his or her right to object but also that the court will decide whether or not the person will be required to give evidence. That decision will be based upon the court’s findings as to the matters under s 18(6) and taking into account at least the matters referred to in s 18(7): Restricted Judgment [2017] NSWCCA 93, Macfarlan JA at [26]–[27] (Schmidt J agreeing, Wilson J dissenting). It was observed by Macfarlan JA at [28] that, where the prospective witness was legally represented it would “usually be sufficient to confirm that the person is aware of the relevant matters” but where the person is not legally represented “an explanation of the matters to which I have referred will need to be given”.

Section 38 Unfavourable witnesses

Section 38(3) provides that the “party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness’s credibility”. In Odisho v The Queen [2018] NSWCCA 19, the members of the NSW Court of Criminal Appeal divided on the proper approach to the words “question the witness about matters relevant only to the witness’s credibility”. Price J held that questions of a witness (the victim of an assault) about the reasons why the witness changed his account in a previous statement was not relevant only to the victim’s credibility because “questions by the Crown of the victim about his possible motives to change his position were necessarily indirectly relevant to the facts-in-issue” (at [10]). However, Bellew J disagreed, holding that while questioning “for the purposes of ‘shaking (the victim’s) credibility on the s 38(1) subjects” would not be caught by this provision, questioning that went further than that was (at [56]–[59]). Bellew J held that cross-examination suggesting that the victim changed his account because he feared for his safety did not require leave, while cross-examination suggesting he changed his account because he was angry at the police did. Hamill J (in dissent) observed that questioning a witness (the victim of an assault) about a prior statement which implicated the defendant would not be relevant only to the credibility of the witness (at [157]) but that questioning the witness as to reasons why the witness changed his account to exculpate the defendant was caught by this provision (at [158]–[171]). The issue was, accordingly, unresolved, although it is suggested that the analysis of Hamill J was correct.

Section 90 Discretion to exclude admissions

In Restricted Judgment [2017] NSWCCA 283, Adamson J (Hoeben CJ at CL and Davies J agreeing) held at [30] that whether the police “ought” to have put to a suspect being interviewed what he had said in an earlier “pretext call”, so as to provide an opportunity to explain apparent inconsistencies in his account, “would appear” to be a matter that is “not  relevant to s 90 of the Evidence Act, but would have been relevant had an objection been made pursuant to s 138”. This is an odd approach, particularly given that s 138 could not have been engaged because none of what was said in the interview was unlawfully or improperly obtained.

Section 97 The tendency rule

In Bauer v The Queen (No 2) [2017] VSCA 176 at [82], the Victorian Court of Appeal considered at [82] that a “single event [was] too isolated to establish the relevant tendency” but the High Court has granted special leave to appeal: R v Dennis Bauer (a pseudonym) (No 2) [2017] HCATrans 269).

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

The reference in s 101(2) to “any prejudicial effect [the evidence] may have on the defendant” is not limited to the potential effect of the evidence on a jury. In R v Chase [2018] NSWCCA 71, it was accepted that this formulation would permit consideration of the interest of the defendant “in a fair trial” (Basten JA at [33]). Where prejudicial effect was contended to arise from admission of evidence that the defendant had committed a similar offence (in circumstances where the defendant had been convicted of that other offence and a notice of intention to appeal had been filed), it was accepted that prejudice to the defendant might arise if the appeal were successful and a retrial ordered (at [31]). On the other hand, merely revisiting the verdict would not constitute prejudice to the defendant (at [27]) nor would the likelihood that the defendant would have to testify to explain the evidence (at [28]).

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

In Cargill Australia Ltd v Viterra Malt Pty Ltd [2018] VSC 99, Macaulay J stated at [50]:

From Mann v Carnell and subsequent authorities, it seems to me that the interaction between inconsistency and fairness in determining whether privilege has been waived may be viewed this way: Although it is inconsistency that effects the waiver, considerations of fairness may alert the Court to the fact of inconsistency or assist it to recognise or detect an inconsistency. Inconsistency and unfairness are not co-extensive: there may be unfairness without inconsistency, or inconsistency without unfairness. Care should be taken that any consideration of forensic unfairness as a factor that may ‘inform’ a perception of inconsistency does not obscure (or replace) the test of inconsistency.

Section 137 Exclusion of prejudicial evidence in criminal proceedings

In Byrd v The Queen [2018] VSCA 42, the Victorian Court of Appeal touched on the issue of whether a court assessing the probative value of circumstantial evidence for the purposes of this provision is required to assume that the inference(s) sought to be drawn by the party adducing the evidence will be drawn, without resolving it. Evidence that drugs were found by the police in the appellant’s garage on 4 July 2014 would not have been relevant unless it were inferred that the drugs were also present on 26 June 2014 (when an earlier search had been conducted). The appellant contended that the evidence had low probative value because of the inference that was open that the drugs had not been present on 26 June 2014. Whelan JA (Beach and Kyrou JJA agreeing) stated at [53] that the evidence was “probative” because “taken at its highest, it was open to the jury to find that the [drugs were] there on 26 June 2014”. That might suggest that probative value was required to be assessed on the assumption that the inference sought to be drawn by the prosecution was drawn. However, the proposition is that, “taken at its highest”, the inference sought to be drawn by the prosecution was “open”, not that it must be drawn. The actual reason given by Whelan JA for holding that the evidence should not be excluded under this provision was at [54]: “As to prejudice, in my view, the danger of unfair prejudice did not outweigh the evidence’s probative value taken at its highest. Taken at its highest, in combination with the other evidence, the jury could conclude the methamphetamine was the applicant’s. In the context of a circumstantial case of this kind that process of reasoning would not constitute misuse of the evidence or prejudice in the relevant sense”. That is, there was no danger of unfair prejudice at all and, accordingly, the probative value of the evidence as assessed could not be outweighed by it.

Section 138 Exclusion of improperly or illegally obtained evidence

• In R v Afu, R v Caleo (No 11) [2018] NSWSC 190, RA Hulme J noted at [4] the NSW Commissioner of Police instructions in relation to identification procedures in “Procedures for the Evidence Act” (12 April 2013) but did “not understand them to be instructions or mandatory procedures required of police officers” (at [5]).
• Where a number of items of evidence that have been adduced in a proceeding were obtained unlawfully or improperly, the court is required to assess the undesirability of admitting the evidence in respect of each item of evidence. Thus, in Restricted Judgment [2017] NSWCCA 288, the NSW Court of Criminal Appeal distinguished between certain surveillance evidence obtained unlawfully by a private body and evidence obtained by a regulatory body pursuant to a search warrant itself obtained using that surveillance evidence. While the search warrant evidence was obtained “in consequence” of the unlawful obtaining of the surveillance evidence, the regulatory body had not itself contravened any Australian law or condoned any breach of Australian law. The way in which the evidence was obtained was materially different and the undesirability of admitting the evidence was not the same (at [125]). The court concluded in respect of the search warrant evidence that, despite the potential of admission of the evidence to confer “curial approval” on the unlawful conduct of the private body, the desirability of admitting the evidence outweighed the undesirability of admitting it (at [129]–[130]). The court pointed out, however, that if the same body had obtained evidence under s 138(1)(a) and then obtained further evidence under s 138(1)(b), the application of the balancing test will often be equally applicable to both categories of evidence (at [121]). As regards evidence of an alleged admission that was obtained “in consequence” of the unlawful obtaining of the surveillance evidence (where the questioning would not have taken place but for the fact that the surveillance evidence was obtained), “the way in which” the evidence of the admission was obtained was significantly different from “the way in which” the surveillance evidence was obtained because none of the knowledge gained from the obtaining of the surveillance evidence was utilised in the questioning. The court observed that the alleged admission was “barely affected by the ‘primary taint’ of the [contravention of the law involved in obtaining the surveillance evidence]” and that admitting the evidence would be “unlikely to amount to ‘curial approval, or even encouragement’ of the unlawful conduct involved in procuring the surveillance evidence” (at [140]–[141]).

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