Section 38 Unfavourable witnesses

In Saddik v The Queen [2018] VSCA 249, it was held that a miscarriage of justice resulted from a Crown Prosecutor failing to make an application under this provision in respect of a prosecution witness and then criticising that witness in final address.

Section 46 Leave to recall witnesses

A court should hesitate before drawing an inference suggested by a party where the party failed to cross-examine a witness called by the opponent who could have testified on the issue: Masters Home Improvement Pty Ltd v North East Solution Pty Ltd [2017] VSCA 88 at [245], [254].

Section 55 Relevant evidence

In R v Bauer (2018) 92 ALJR 846; [2018] HCA 40 at [66], it was argued that the evidence of an adult (TB) regarding an event that occurred when she was 4 or 5 years old “was so inherently unreliable as rationally to be incapable of acceptance”. This was ultimately rejected by the High Court, notwithstanding acceptance of the propositions that “an adult’s memory of what occurred when he or she was only four or five years of age is, generally speaking, limited” and “[o]rdinary experience suggests that much of those aspects of our memories consists of little more than relatively vague impressions”. The acknowledgment of those general propositions must reflect a view that the definition of relevance does not require acceptance of what the witness asserted had happened – only that it must be accepted that she believed that it had happened. That the High Court ultimately held the evidence relevant does not undercut that point, since the Court did not simply state that TB’s account must be assumed to be accepted. However, more problematic is the acceptance of the High Court (at [69]) that, at least in theory, “the risk of contamination, concoction or collusion” may be “so great that it would not be open to the jury rationally to accept the evidence”. The risk of contamination would fit with assumed acceptance that the witness at least believed what was asserted in evidence, However, it is very difficult to understand how taking into account a (great) risk of concoction or collusion is consistent with the statutory obligation to assess relevance on the assumption that the evidence will be “accepted”.

Section 57 Provisional relevance

On the question of whether a finding of relevance in relation to a tendered document requires the court to be satisfied on the balance of probabilities that the document is “what [it is] alleged to be”, in Antov v Bokan [2018] NSWSC 1474, Ward CJ in Eq at [335] accepted that “Rusu turned on its own facts and circumstances and should be thus confined” and also at [339] regarded the propositions advanced by Perram J in ACCC v Air New Zealand Ltd (No 1) (2012) 207 FCR 448; 301 ALR 326; [2012] FCA 1355 at [95] as “compelling”. However, Ward CJ in Eq made the point at [326] that issues of authenticity arise in contexts other than determination of relevance (for example, the business records exception in s 69 requires that the document “is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business”: s 69(1)(a)(i)). Ward CJ in Eq stated that “[i]n order to meet that requirement, it could be said that a condition of a document’s admissibility is that it is a genuine or authentic record of that business”. It follows that proposition 6 in the propositions advanced by Perram J should be approached with caution (as Ward CJ in Eq stated at [339], “It may be noted that his Honour was not here focussed on any requirements of s 69 of the Evidence Act.”)

Section 66 Exception: criminal proceedings if maker available

For this hearsay exception to apply, the occurrence of the asserted fact must have been “fresh in the memory” of the person who made the representation. In R v Bauer (2018) 92 ALJR 846; [2018] HCA 40, the High Court (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) stated at [89]:

In Graham v The Queen, a majority of this Court held that, as s 66 of the Evidence Act 1995 (NSW) was then drafted, its use of the word “fresh” imported a close temporal relationship between the occurrence of the asserted fact and the time of making the representation and hence that contemporaneity was the most important consideration in assessing a representation under that section. Thereafter, sub-s (2A) was inserted into s 66 of the Evidence Act to make clear that the intention of the section is that “freshness” is not confined to the time which elapses between the occurrence of the relevant event and the making of the representation about that event. Since then, it has rightly come to be accepted by intermediate courts of appeal that the nature of sexual abuse is such that it may remain fresh in the memory of a victim for many years. It depends on the facts of the case.

Thus, the High Court has endorsed decisions that memories of sexual abuse “may remain fresh in the memory of a victim for many years”. The particular (alleged) memories considered by the High Court were of events that occurred between 1988 and 1998, recounted in a conversation that occurred at the end of 1998. In the conversation, the complainant recounted abuse in the form of masturbation and fellatio (in the context of watching pornographic videos). These appear to have occurred primarily between 1991 and 1993. The High Court referred to a number of considerations said to bear on the question whether the asserted facts were fresh in the complainant’s memory:

• the complainant had not given evidence on the issue: while the Victorian Court of Appeal considered that this precluded a finding that the test was satisfied, the High Court observed at [90] that it could still be “inferred that the facts were ‘fresh in the memory’”;
• the nature of the event described in the representation: the representations involved sexual abuse and were specific rather than generic (notwithstanding that the complainant did not specify when the acts occurred) (at [91], [92]);
• the circumstances of the alleged event: these were specified (at [91]);
• the representations alleged repeated acts over a number of years (at [91], [92]);
• temporal proximity: while some of the alleged events were up 7 years prior to the making of the representations, it could be inferred that the alleged sexual abuse “continued up to less than a year before the conversation” (at [92]);
• the age of the person making the representation at the time of the representation;
• the age of the person making the representation at the time of the alleged event;
• the complainant’s emotional state at the time of making the representation: the High Court pointed to her “highly emotional state at the time of the conversation” as supporting an inference that the test was satisfied (at [92]);
• some representations were made in response to leading questions: the High Court considered that, in the circumstances, this did not suggest that the test was not satisfied in respect of those representations (at [92]);
• inconsistencies between the representations and other evidence: the High Court considered that these did not, in the circumstances, “belie that the events the subject of the representations … were fresh in the memory” (at [94]);
• prior representations: the High Court observed that whether earlier similar representations had been made had little, if any, bearing on whether the test was satisfied (at [94).

The High Court concluded that the trial judge had not erred in finding that the test was satisfied.

Section 69 Exception: business records

– In Panayi v Deputy Commissioner of Taxation (2017) 319 FLR 228; [2017] NSWCA 93, the NSW Court of Appeal held at [42] that the Australian Securities and Investments Commission (ASIC) was a “business”. It was also held at [42] that that evidence of the decision and reasons of a delegate of the Australian Securities and Investments Commission for disqualifying a person from managing corporations for four years was a “record” of “a business”.

– As the NSW Court of Appeal held in Panayi v Deputy Commissioner of Taxation (2017) 319 FLR 228; [2017] NSWCA 93 at [43], whether a person “might reasonably be supposed to have had personal knowledge of any asserted fact, or made a representation on the basis of information directly or indirectly supplied by a person who might be supposed to have such personal knowledge, can only be answered by focussing on particular representations and the fact asserted in them”.

– The weight of authority (see discussion at [EA.57.120]) accepts that a finding as to authentication (on which relevance depends) need not be obtained before a document is found to be relevant, so long as it is “reasonably open” to find that the document is authentic (s 57(1)(a)) or an undertaking is given that further evidence will be adduced “at a later stage of the proceeding that will make it reasonably open to make” the finding that the document is authentic: s 57(1)(b). However, in Antov v Bokan [2018] NSWSC 1474, Ward CJ in Eq pointed out at [326] that issues of authenticity arising in the context of s 69 are not issues of relevance to which s 57 applies:

[A] number of the cases concern where what would otherwise be inadmissible evidence is sought to be brought within the business records exception in s 69 of the Evidence Act, for which it is necessary to show that the document “is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business” (s 69(1)(a)(i)). In order to meet that requirement, it could be said that a condition of a document’s admissibility is that it is a genuine or authentic record of that business.

Given that such requirements must be established on the balance of probabilities, in this context, authenticity would have to be established to that standard for the evidence to be admissible.

Section 77 Exception: evidence relevant otherwise than as opinion evidence

In Hoyle v The Queen [2018] ACTCA 42, the ACT Court of Appeal failed to appreciate the significance of this provision. The appellant was charged with a number of acts of indecency in respect of a number of complainants. He was an academic who allegedly suggested to each complainant that a plagiarism issue would be resolved if she provided sexual favours and then made sexual advances. The prosecution adduced evidence from two complainants to the effect that, in their opinion, the appellant’s actions were sexually motivated. The Court of Appeal noted that the evidence was admissible “to understand the conduct of a complainant (eg, why she submitted to sexual behaviour or delayed in making a complaint)” but accepted that it was “not admissible in relation to the appellant’s state of mind” (at [175]–[176]). The appeal was dismissed on the basis that “brief references to the opinions of the complainants would have had no impact on the jury” (at [178]) but it would have been simpler to hold that this provision operated to make the opinion rule not apply to the evidence, noting that no application was made under s 136.

Section 91 Exclusion of evidence of judgments and convictions

It is implicit in the wording of the provision that it only applies where evidence of a decision or judgment, or a finding of fact, is sought to be used in other proceedings. In King v Muriniti [2018] NSWCA 98, Basten JA (Gleeson JA agreeing) stated at [14]:

For s 91 to be engaged there must be a fact which was found in the earlier proceeding, was in issue in that proceeding and is in issue in the current proceeding. In other words, the reference at the end of s 91(1) to “that proceeding” implies two separate proceedings.

The issue was whether this provision would apply to cases where there had been a “principal judgment” and the effect of applying it would have “the possible consequence (and intent) that findings would be made which were inconsistent with those in the principal judgment” (Basten JA at [22]). Basten JA observed that “the result sought would tend to undermine the finality of an otherwise ‘final’ judgment and would thus constitute an abuse of process”. The Court of Appeal concluded that this provision did not apply in a case where s 99 of the Civil Procedure Act 2005 (NSW) conferred power to order a solicitor to pay costs or indemnify a party as to costs in respect of proceedings – on the basis that there was no separate proceeding (Basten JA, Gleeson JA agreeing, at [37], [41]–[42], Emmett AJA at [97]) and also because “there is no reason to rely upon findings made in the [principal] judgment” (Basten JA, Gleeson JA agreeing, at [39], [45]). In any event, the court appears to have concluded that an order might be made pursuant to s 190(3) that s 91 “not apply in relation to evidence”. Basten JA noted at [22] that s 190(3)(b) “raises a question as to the potential for more severe detriments than merely ‘unnecessary expense or delay’” but then observed that “it would be surprising if the rules of evidence, as set out in the Evidence Act, were to be read as undermining the inherent power of a court to prevent an abuse of its processes”. Section 11(2) provides that “the powers of a court with respect to abuse of process are not affected” by the Act. Emmett JA also concluded at [96] that this was an appropriate case for the making an order under s 190.

Section 97 The tendency rule

– In R v Bauer (2018) 92 ALJR 846; [2018] HCA 40, the High Court observed at [58] that “the mere fact that an accused has committed an offence against one complainant is ordinarily not significantly probative of the accused having committed an offence against another complainant”. There “must ordinarily be some feature of or about the offending which links the two together”, “some common feature of or about the offending”, before the requirement of significant probative value will be met. However, ordinarily, evidence that an accused had a sexual interest in a complainant and has been willing to act on that interest (which evidence might be constituted by evidence of other charged acts or by uncharged acts) will be significantly probative of an allegation that the accused committed a sexual offence against that complainant. Indeed, the High Court went further and held that such evidence from the complainant will ordinarily have significant probative value. 
Further, only in an extreme case where the evidence is “so inherently incredible, fanciful or preposterous that it could not be accepted by a rational jury” (and the evidence would not even meet the test of relevance) would the court not proceed on the assumption that evidence of the witness is accepted. For that reason, the High Court rejected an argument that tendency evidence from a witness (TB) was not of significant probative value because “there was such a significant possibility of contamination, concoction or collusion in relation to TB’s evidence as to deprive it of the degree of significant probative value”. The High Court at [69], after noting that IMM v The Queen (2016) 257 CLR 300; 90 ALJR 529; [2016] HCA 14 held that the assessment of “probative value” was “to be undertaken taking the evidence at its highest”, then stated:

Accordingly, unless the risk of contamination, concoction or collusion is so great that it would not be open to the jury rationally to accept the evidence, the determination of probative value excludes consideration of credibility and reliability. Subject to that exception, the risk of contamination, concoction or collusion goes only to the credibility and reliability of evidence and, therefore, is an assessment which must be left to the jury.

The High Court also held at [61]:

The question of whether tendency evidence is of significant probative value is one to which there can only ever be one correct answer, albeit one about which reasonable minds may sometimes differ. Consequently, in an appeal against conviction to an intermediate court of appeal, or on a subsequent appeal to this Court, it is for the court itself to determine whether evidence is of significant probative value, as opposed to deciding whether it was open to the trial judge to conclude that it was.

– In a NSW case, it was contended that tendency evidence was probative of the conduct of the defendant rather than any state of mind but the Court of Criminal Appeal doubted that the use to which the evidence may be put could be differentiated in this way: DS v The Queen [2018] NSWCCA 195, Basten JA (Lonergan J agreeing) at [12]. Basten JA added: “For example, where a man is charged with non-consensual sexual intercourse with a woman and denies that intercourse took place, evidence that the accused had consensual sexual intercourse with other women on other occasions could hardly render the actus reus more probable”.

– In an ACT case, the Court of Appeal emphasised the inter-relationship between an alleged tendency to have a particular state of mind and an alleged tendency to act in a particular way: Hoyle v The Queen [2018] ACTCA 42 at [117]–[120].

Section 98 The coincidence rule

In R v Bauer (2018) 92 ALJR 846; [2018] HCA 40, the High Court rejected an argument that tendency evidence from a witness (TB) was not of significant probative value because “there was such a significant possibility of contamination, concoction or collusion in relation to TB’s evidence as to deprive it of the degree of significant probative value”. It is important in this context to note that the High Court was discussing the assessment of the probative value of tendency evidence, not coincidence evidence. While some of the dicta of the High Court was expressed at a level of generality that might be seen to have application to coincidence evidence, two points need to be emphasised.

First, s 97 applies particularly to evidence of the “conduct of a person” so that the required assumption that the evidence “is accepted” (and thus to be “accepted as credible and reliable”: IMM v The Queen (2016) 257 CLR 300; 90 ALJR 529; [2016] HCA 14 at [48]) has the consequence that, in general, the probative value of that evidence must be assessed on the assumption that the evidence of the witness is accepted and that the person did engage in that conduct. In contrast, s 98 applies to “evidence that 2 or more events occurred”. Where the reasoning sought to be relied upon is that similarities in the accounts of two witnesses regarding the conduct of the defendant are contended to make it improbable that the witnesses are telling lies, the relevant events are the giving of the two accounts. The required assumption is that the evidence that the two accounts were, or will be, given (that is, the fact of the two accounts) “is accepted”. There is no requirement to assume anything about the credibility or reliability of what is asserted in the accounts.

Second, coincidence evidence is sought to be used “to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally”. It may be that some degree of risk of joint concoction or contamination will have the consequence that the evidence will have a limited capacity to rationally affect the probability that the complainant’s account of a charged offence is true. In those circumstances, the evidence would lack significance or importance in establishing those facts. It may be accepted that the mere possibility that there has been concoction, collusion or contamination should not be a basis, on its own, to justify exclusion of coincidence evidence. However, evidence which tends to show that concoction, collusion or contamination has occurred should not be required to be disregarded when the assessment of probative value occurs, particularly where the evidence is coincidence evidence which depends for its probative value on the exclusion of such explanations. That this is so may be easily demonstrated. Assume that the prosecution contends that the allegations of A and B must both be true because they are strikingly similar and it would be highly improbable that they would, independently, make such similar allegations unless they were true (that is, it would be an extraordinary coincidence that they would both make strikingly similar false allegations). It is clear that the probative value of the evidence depends on the premise of independence. It is equally clear that the probative value of this evidence would be significantly affected by other evidence that there had been contamination, concoction or collusion between A and B.

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

In R v Bauer (2018) 92 ALJR 846; [2018] HCA 40, the High Court observed at [73]:

Despite textual differences between the expressions “prejudicial effect” in s 101, “unfairly prejudicial” in s 135 and “unfair prejudice” in s 137, each conveys essentially the same idea of harm to the interests of the accused by reason of a risk that the jury will use the evidence improperly in some unfair way.

Prejudice may arise from a forensic disadvantage suffered by the defendant. The High Court accepted at [79] that forensic disadvantage arising from long delay was a potential prejudice to be taken into account, although it was concluded that judicial directions “as to how to allow for the difficulties imposed on the respondent by reason of that kind of disadvantage and to assess the evidence accordingly” meant that the probative value of the evidence did substantially outweigh the potential prejudicial effect on the defendant.

Section 108C Exception: evidence of persons with specialised knowledge

In Hoyle v The Queen [2018] ACTCA 42, the ACT Court of Appeal held that expert evidence that a victim of sexual violence may experience a “freeze response” was admissible under this provision to prevent a complainant’s credibility being undermined by her “counterintuitive behaviour … her admitted failure to protest the appellant’s inappropriate conduct” (at [230]) and expert evidence “that delay or failure to report sexual violence was common among victims of sexual violence” was capable of “substantially affecting” the credibility of a complainant “who failed to make an early complaint. … [as i]t served to neutralise the intuitive view that a delay in complaint suggested that there is nothing to complain about” (at [242]).

Section 128 Privilege in respect of self-incrimination in other proceedings

Notwithstanding earlier authority holding that the word “object” could extend to a situation where a witness seeks to give evidence revealing the commission of a criminal offence, but to do so under the protection of a certificate given under this provision, it is now settled that an objection under this provision is limited to an objection to giving evidence which the witness would otherwise be compellable to give. Song v Ying (2010) 79 NSWLR 442; [2010] NSWCA 237 was followed by the Full Court of the Family Court in Field v Kingston [2018] FamCAFC 145. That Court observed at [28] that there “appears to be no relevant distinction to be drawn as to the form in which the evidence is given, that is whether given orally or by affidavit sworn and filed in the proceedings”. It was accepted at [44] that “where a party is directed to file an affidavit and the order specifies the subject matter of the affidavit, the requisite degree of compulsion may well arise permitting the issue of a certificate”. However, it was held at [43] that Court Rules imposing an obligation of full and frank disclosure between parties “provide no relevant compulsion in the sense which would enliven the application” of this provision.

Section 137 Exclusion of prejudicial evidence in criminal proceedings

The judgment of the High Court in R v Bauer (2018) 92 ALJR 846; [2018] HCA 40 is not inconsistent with the proposition that, when assessing “probative value”, while it is to be assumed that a witness is being truthful when he or she testifies that a belief is held and is reliably recounting the content of the belief, this does not mean that the belief itself must be assumed to be reliable. Even in respect of the test of relevance, which expressly requires the court to assume that the evidence will be accepted, the High Court approached the issue in a similar way. It was argued that the evidence of an adult (TB) regarding an event that occurred when she was 4 or 5 years old “was so inherently unreliable as rationally to be incapable of acceptance”. This was ultimately rejected by the High Court, notwithstanding acceptance of the propositions that “an adult’s memory of what occurred when he or she was only four or five years of age is, generally speaking, limited” and “[o]rdinary experience suggests that much of those aspects of our memories consists of little more than relatively vague impressions”. The acknowledgment of those general propositions must reflect a view that there was no requirement to accept what the witness asserted had happened – only that it must be accepted that she believed that it had happened. That the High Court ultimately held the evidence relevant does not undercut that point, since the Court did not simply state that TB’s account must be assumed to be accepted.

Section 140 Civil proceedings: standard of proof

In Nguyen v Tran [2018] NSWCA 215, Beazley P observed at [63] (Emmett AJA and Bellew J agreeing) that “[w]hilst acknowledging that there were authoritative statements using the language of ‘clear or cogent or strict proof’, the plurality’s observations [in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; 110 ALR 449; [1992] HCA 66] were in significantly more moderate terms, namely, that a court should not ‘lightly make [such] a finding’”.

Section 141 Criminal proceedings: standard of proof

In R v Bauer (2018) 92 ALJR 846; [2018] HCA 40, the High Court at [86] overruled NSW authority that a trial judge must “ordinarily” give a direction to a jury where tendency reasoning is adopted in relation to sexual activity that “before they may act on evidence of uncharged acts, they must be satisfied of the proof of the uncharged acts beyond reasonable doubt”. However, the Court then added:

Such a direction should not be necessary or desirable unless it is apprehended that, in the particular circumstances of the case, there is a significant possibility of the jury treating the uncharged acts as an indispensable link in their chain of reasoning to guilt.

It follows that such a direction may be necessary where the trial judge considers that there is “a significant possibility of the jury treating the uncharged acts as an indispensable link in their chain of reasoning to guilt”. Of course, it would not be appropriate in such circumstances for the trial judge simply to direct the jury that they must be satisfied of the proof of the uncharged acts beyond reasonable doubt. Rather, the direction would be along the following lines: “If you conclude that the occurrence of an uncharged act is indispensable, or essential, before you could be satisfied beyond reasonable doubt of the guilt of the accused, I direct you that you cannot find the accused guilty unless you are satisfied of the proof of that uncharged act beyond reasonable doubt”.

Section 160 Postal articles

In Federal Commissioner of Taxation v Josway Hospitality Pty Ltd [2018] FCA 466, McKerracher J stated at [2](d) that “while mere denial of non-receipt by the addressee would scarcely, if ever, suffice to prove ‘non-delivery’, evidence of non-receipt at a place by an appropriate occupant, depending on the cogency of the evidence, may be sufficient to create a doubt for the purposes of” this provision. However, in several recent judgments in the NSW Supreme Court, it has been held that such evidence of denial of receipt was insufficient, in the particular circumstances, to raise such a doubt: see Re Complete Investing Services Pty Ltd (in liq) [2018] NSWSC 1003 at [23]; Re Healthy Industries Pty Ltd [2018] NSWSC 1172 at [63].

Section 174 Evidence of foreign law

In Talwar v Sarai [2018] FamCAFC 152, the Full Court of the Family Court pointed out at [44] that Re Tang (2017) 52 VR 786; [2017] VSCA 171, “[a]t its highest … supported the primary judge in that case conducting her own research to ascertain whether a text, which had been tendered, was a ‘reliable source of information’ about Chinese law”. It was observed that the authorities “do not permit a judge to conduct his or her own research into the foreign law after the hearing has finished” and it “is incompatible with the independent role of a judge to seek out the relevant facts of a case for him or herself, especially where such research is conducted after the close of the hearing and without the relevant material being drawn to the parties’ attention”.

Section 190 Waiver of rules of evidence

In King v Muriniti [2018] NSWCA 98, the Court appears to have concluded that an order might be made pursuant to s 190(3) that s 91 “not apply in relation to evidence”. Basten JA at [22] noted that s 190(3)(b) “raises a question as to the potential for more severe detriments than merely ‘unnecessary expense or delay’” and observed that “it would be surprising if the rules of evidence, as set out in the Evidence Act , were to be read as undermining the inherent power of a court to prevent an abuse of its processes”. Basten JA then noted s 11(2), which provides that “the powers of a court with respect to abuse of process are not affected” by this Act. Emmett JA also concluded at [96] that this was an appropriate case for the making an order under s 190.

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