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Uniform Evidence Law Noticeboard – May 2019

Content updates

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.

  • Section 20 Comment on failure to give evidence

  • Section 41 Improper questions

  • Section 55 Relevant evidence

  • Section 62 Restriction to “first-hand” hearsay

  • Section 81 Hearsay and opinion rules – exception for admissions and related representations

  • Section 87 Admissions made with authority

  • Section 117 Definitions

  • Section 125 Loss of client legal privilege – misconduct

  • Section 137 Exclusion of prejudicial evidence in criminal proceedings

Section 20 Comment on failure to give evidence

There is authority that a case would be a sufficiently strong circumstantial case to justify the comment permitted in Weissensteiner v The Queen (1993) 178 CLR 217; 68 A Crim R 251; [1993] HCA 65 “where the inference of guilt is the only rational inference which can be drawn from the circumstances”, at least in a case where the circumstantial case relates to the single issue in dispute: see R v McEwan [2019] QCA 16 at [62]. Brown J (Sofronoff P and Morrison JA agreeing) observed at [29] that “there is a distinction between the drawing of an inference from the silence of an accused alone, as opposed to the drawing of an inference otherwise available on the evidence given, where the accused has not supported any hypothesis which is consistent with innocence by explaining or contradicting the inference with facts which are peculiarly within his or her knowledge. The comment is directed to the failure to explain or answer evidence which could only be explained by an accused, not the failure of an accused to give evidence”. It was also held that the Weissensteiner inference may be drawn even where the ultimate inference being propounded by the prosecution was a negative inference (at [66]–[67]). It was observed at [24] that “the comment made by the majority in Azzopardi that the cases in which such a direction will be made are rare and exceptional, is a statement that the preconditions for the making of the comment as outlined in [64] of the judgment are rarely met, not that a case must pass some threshold of being rare and exceptional before such a comment will be made”.

Section 41 Improper questions

The Victorian provision as it existed in the Evidence Act 2008 was adopted in the 2011 Northern Territory Act. However, the Victorian provision was amended by the Justice Legislation Miscellaneous Amendment Act 2018, making it substantially uniform with the provisions in the Commonwealth, NSW and the ACT.

Section 55 Relevant evidence

In Director of Public Prosecutions (Vic) v Ristevski (Ruling No 1) [2019] VSC 165, it was held at [31]–[39] that evidence of post-offence conduct could be relied on as evidence that the accused killed his wife, but it could not be relied on to prove that the accused did so with murderous intent (bearing in mind that it could be explained by consciousness of guilt of a less culpable state of mind). Beale J distinguished this case from R v Baden-Clay (2016) 90 ALJR 1013; [2016] HCA 35 stating:

[36] … The accused’s counsel submitted … that the accused could well have feared that the unlawful killing of his wife would attract a substantial prison term and cause irreparable damage to his relationship with his daughter, with whom he was close. I considered there to be much force in those submissions. They made it difficult to see how a jury could properly find that the only reasonable explanation for the post-offence conduct was that the accused was conscious of having killed his wife with murderous intent. …

[37] This case has some similarities with Baden-Clay, but it is the differences that are more striking. First, there was compelling evidence of a motive for Baden-Clay to kill his wife – a desire to be rid of her so he could be with his lover. Second, the post-offence conduct in that case included lies and other conduct directed at concealing his ongoing extra-marital affair. In other words, the post-offence conduct was intertwined with his motive to kill and thus it is easy to see how the High Court, viewing the post-offence conduct on the basis of the evidence as a whole, reached the conclusion that it did.

Section 62 Restriction to “first-hand” hearsay

Section 62(2) provides that, for the purposes of determining whether evidence is first-hand hearsay or more remote hearsay, a “person has personal knowledge of the asserted fact if his or her knowledge of the fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact”. It is important to note the qualification in s 62(2) with respect to knowledge of a fact based on “a previous representation made by another person about the fact”. In Neill-Fraser v Tasmania (No 2) [2019] TASSC 11, Brett J noted at [13] that this qualification did not include a previous representation made by the person whose knowledge about the fact is in issue. Thus, in a case where a person made a hearsay representation about a fact (the date when an event occurred), the person had personal knowledge of the asserted fact notwithstanding that the person was relying on a diary entry that she had made. Brett J stated at [13]:

[The person] was not relying on a previous representation made by another person. She had refreshed her memory from a record made by her in respect of something, which it might reasonably be supposed, was based on what she had seen and heard herself. I am satisfied that, in those circumstances, she had personal knowledge of the asserted fact in the sense required by s 62.

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

The Northern Territory Court of Criminal Appeal has concluded in Singh v The Queen [2019] NTCCA 8, that R v Rymer (2005) 156 A Crim R 84; [2005] NSWCCA 310 should not be followed. Kelly J (Barr J agreeing) observed at [23] that “there is no principled legal basis for reliance on R v Rymer as authority for the proposition that pre-trial exculpatory accounts by an accused are admissible otherwise than at the instance of the prosecution where the prosecution intends to rely on the inculpatory parts of a mixed statement”. A majority of the court also rejected any duty on the prosecution, as a matter of fairness, to tender evidence of largely exculpatory statements made by the defendant in an interview with police, and rejected an argument that the prosecution’s failure to do so resulted in an unfair trial: Singh v The Queen [2019] NTCCA 8, Kelly J (Barr J agreeing) at [24]–[69], Blokland J dissenting. Kelly J noted at [67]: “[t]hat is not to say that it can never be unfair for the prosecution to refuse to tender a record of interview with an accused. There might be some circumstances (I would think they would be rare) in which the admissions and exculpatory explanations together place other evidence in the Crown case in a different context and which, if true, may make that other evidence misleading, or which may cast the accused’s actions in a different light, in which it may be unfair of the Crown not to tender the mixed statement in evidence”.

Section 87 Admissions made with authority

In Helicopter Resources Pty Ltd v Commonwealth [2019] FCAFC 25, the Full Court of the Federal Court noted at [189] that, while an employee of a body corporate called as a witness may not claim the privilege on behalf of the corporation or on the basis that an answer would tend to incriminate the corporation, the effect of s 87 may make his evidence admissible, not merely as evidence of a witness of fact, but as evidence of an admission by the corporation. Since the corporation in question had been charged with a criminal offence, the employee should not be compelled to testify because “as a matter of practical reality, the [corporation’s] position as an accused corporation in the criminal proceedings would be altered fundamentally” (applying the principles recognised and applied in X7 v Australian Crime Commission (2013) 248 CLR 92; 232 A Crim R 410; [2013] HCA 29).

Section 117 Definitions

The NSW Court of Appeal has confirmed that the Director of Public Prosecutions can be a “client” for the purposes of the privilege provisions (with an employed solicitor and a Crown Prosecutor providing legal services to the Director): Director of Public Prosecutions (NSW) v Stanizzo [2019] NSWCA 12 at [25].

Section 125 Loss of client legal privilege – misconduct

In Director of Public Prosecutions (NSW) v Stanizzo [2019] NSWCA 12, the NSW Court of Appeal observed at [42] that s 125(1)(a) “covers two situations”. The first relates to “a communication made … by a client or lawyer”. Thus, notes of communications made by persons other than the client or lawyer, even if the communications were made in furtherance of the commission of a fraud or an offence, “could not remove the client legal privilege enjoyed by the [client]”.  The second limb of s 125(1)(a) relates to “the contents of a document prepared by a client or lawyer” and “[t]hat would be satisfied with respect to the notes prepared by the lawyers” but only if there was “basis in the evidence to suppose that those notes were prepared in furtherance of the commission of a fraud or offence”. The court stated at [43]:

In order for the [client’s] client legal privilege to be lost, it would not be sufficient to demonstrate that the [client] or his lawyers had reasonable grounds for believing that the [persons other than the client or lawyer] lied in [furtherance of the commission of a fraud]. It was necessary to demonstrate reasonable grounds for finding that the [client], or at least his lawyers, was or were party to the fraud in the sense that he was aware, personally or through his lawyers, that the evidence was false.

Thus, privilege may be lost as a result of the actions of the client’s lawyer even if the client was personally involved. The Court of Appeal emphasised at [41] that “[a]n allegation of fraud must be made in clear and definite terms”. As regards s 125(2), the Court of Appeal emphasised at [33]–[40] that there must be “evidence” admitted in the proceeding to satisfy the burden of proof – allegations in a pleading will not be enough.

Section 137 Exclusion of prejudicial evidence in criminal proceedings

  • In some circumstances, directions may have the capacity to elevate the significance of the evidence beyond its probative weight: Director of Public Prosecutions (Vic) v Weaver [2019] VSCA 26 at [54].
  • Cases may arise where allowing evidence for a limited use may require directions to avoid unfair prejudice that will be so convoluted that there is a risk that the jury may misapply the directions: see, for example, R v Eastman (No 44) [2018] ACTSC 194 at [33].

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Stephen J Odgers SC
By Stephen J Odgers SC

Stephen J Odgers SC BA (Hons) LLB (Hons) LLM (Columbia) is an eminent criminal law barrister specialising in the area of criminal appeals. He is the author of a number of Thomson Reuters works, including the book, Principles of Federal Criminal Law, and the subscription service, Uniform Evidence Law which forms the basis of the book, Uniform Evidence Law, now in its eleventh edition. Mr Odgers is the General Editor of the Federal Offences subscription service, as well as co-Editor of the Criminal Law Journal, and a contributor to Laws of Australia. Since 2002, he has served as the Chair of the Criminal Law Committee of the NSW Bar Association, and in 2006 was appointed Adjunct Professor at the University of Sydney's Faculty of Law.

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