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November 2015

• Section 37 Leading questions
• Section 55 Relevant evidence
• Section 57 Provisional relevance
• Section 66 Exception: criminal proceedings if maker available
• Section 66A Exception: contemporaneous statements about a person's health etc.
• Section 79 Exception: opinions based on specialised knowledge

Updated 25 November 2015

Section 37 Leading questions

A number of provisions in the Criminal Procedure Act 1986 (NSW) and the Criminal Procedure Act 2009 (Vic) provide that certain recorded statements by a person who subsequently becomes a witness may be admitted as evidence in chief of that witness.  For example, s 367 of the Criminal Procedure Act 2009 (Vic) permits a child or cognitively impaired witness to give their evidence in chief in the form of a VARE (Video and Audio Recorded Evidence) interview.  It has been held in respect of this procedure that s 37 applies to prohibit leading questions (Martin v Director of Public Prosecutions (2013) 238 A Crim R 449; [2013] VSCA 377 at [34]–[44]; Knowles v The Queen [2015] VSCA 141 at [72]. but it is apparent that the context is different.  There is no court to "give leave".  There is no possibility of contemporaneous "objection". Notwithstanding the terms of s 37, there would be no breach of the provision if a question was designed to "clarify" what had already been said: S L J v The Queen (2013) 39 VR 514; 233 A Crim R 341; [2013] VSCA 193 at [32]; Martin v Director of Public Prosecutions (2013) 238 A Crim R 449; [2013] VSCA 377 at [34]–[44]; Knowles v The Queen [2015] VSCA 141 at [68]; Sutton v The Queen [2015] VSCA 251 at [85]. However, if the provision is breached, the answer would be obtained in consequence of impropriety (and arguably in contravention of an Australian law) for the purposes of s 138: Knowles v The Queen [2015] VSCA 141 at [72]. There would also be scope for the operation of s 137: Sutton v The Queen [2015] VSCA 251 at [86]–[87]. If the evidence is admitted, a warning may be required: Knowles v The Queen [2015] VSCA 141 at [79].

Section 55 Relevant evidence

• The courts generally give the definition of "relevance" a broad interpretation. The bar may be even lower where the evidence is adduced by a defendant in a criminal trial. In Ferguson v The Queen [2015] VSCA 279, the Victorian Court of Appeal stated at [34] that "[t]he threshold for relevance, for an accused, is quite low, because the evidence, to be adduced on behalf of an accused, need only be capable of rationally affecting the probability of the existence of a fact in issue by raising a doubt in respect of it". That may be accepted but it fails to acknowledge how low the bar is in other contexts. Even in a civil proceeding, if evidence is rationally capable of raising a doubt about (the existence of) a fact in issue in the proceeding, then it is capable of affecting the assessment of the probability of the existence of that fact in issue. The point that the Court of Appeal makes has more bearing on the application of the discretions in Pt 3.11.
• An example of evidence that fails to satisfy the test of relevance is evidence that the complainant in relation to alleged child sexual abuse wrote a letter in what was said to be a "tone" inconsistent with her allegations, where "it would invite the jury to speculate", from that "tone", as to her frame of mind when she wrote the letter, "and to speculate as to how" a child of the same age "might be expected to have expressed herself, in writing such a letter, if she had been subjected to the sexual abuse of the type alleged": Ferguson v The Queen [2015] VSCA 279 at [39]–[40].
• In Miller v The Queen [2015] NSWCCA 206, where it was argued that evidence did not meet the test of relevance because the "witnesses were in no better position to make a comparison between the appellant and the person in the photographs than the jurors", it was held at [112] that "each of the witnesses was in a better position than the jury to recognise the appellant because his appearance at the time of trial differed in a significant way from his appearance at the time of the offence".

Section 57 Provisional relevance

Where a document is tendered as a sample of a person's handwriting (to permit comparison with other handwriting contended to be by that person) it is not necessary for there to be direct evidence that the sample was written by the person – circumstantial evidence will be sufficient: Miller v The Queen [2015] NSWCCA 206 at [146].

Section 66 Exception: criminal proceedings if maker available

In Boyer v The Queen [2015] VSCA 242, the Victorian Court of Appeal held that a number of statements made more than 12 years after the “asserted facts” were not admissible because "[t]here was no evidence before the trial judge upon which she could have concluded that the occurrence of the asserted facts were fresh in [the representor's] memory at the time that any of the representations were made" (Priest JA at [74]).

Section 66A Exception: contemporaneous statements about a person's health etc.

An example of the operation of this provision was provided by Bell J of the Victorian Supreme Court in Boral Resources (Vic) Pty Ltd v Construction, Forestry, Mining and Energy Union (Ruling No 2) [2015] VSC 459 at [7]:

… The operation of the exception is well illustrated by the classic case of evidence of fears expressed by a murdered wife about her husband’s violence and her intention to leave him. First-hand hearsay evidence of the words and actions of the deceased expressing these feelings and intentions are usually admissible in the trial of criminal charges against the husband. …

In this case, evidence was admitted under this provision of statements by a company’s representative that the company did not intend to award contracts to another company by reason of union bans, which evidence was relevant to issues of causation and quantum (at [9]).

Section 79 Exception: opinions based on specialised knowledge

• In Hatziandoniou v Ruddy [2015] NSWCA 234, the NSW Court of Appeal held that a trial judge had adopted “an unduly narrow approach to the question of the qualifications of [an engineer] to express his opinion as to the mechanism by which [fluid discharged from a motorcycle] came to be where it was on the road” (Simpson JA at [44]). It was not necessary for the expert engineer to have “tested the flow of liquid from a motorcycle engine”. His training in fluid dynamics and expertise in cooling systems in motor vehicles was sufficient to support an opinion about the operations of a breached cooling system in a motorcycle. Simpson JA observed at [44] that “[o]ne of the benefits of expertise is that it enables the person who has the relevant ‘training, study or experience’ to extrapolate from the general to the particular”.
• Allen v Robbie [2015] NSWCA 247, the NSW Court of Appeal upheld exclusion of an expert report by an accountant which “was based upon an unfounded assumption, amounting to speculation” (Harrison J at [68]).

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