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October 2016

• Section 55 Relevant evidence
• Section 64 Exception – civil proceedings if maker available
• Section 65 Exception – criminal proceedings if maker not available
• Section 79 Exception – opinions based on specialised knowledge
• Section 91 Exclusion of evidence of judgments and convictions
• Section 92 Exceptions
• Section 98 The coincidence rule
• Section 101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution
• Section 119 Litigation
• Section 122 Loss of client legal privilege: consent and related matters
• Section 130 Exclusion of evidence of matters of state
• Section 137 Exclusion of prejudicial evidence in criminal proceedings
• Dictionary “unavailability of persons”

Updated 24 October 2016

Section 55 Relevant evidence

In R v Baden-Clay (2016) 90 ALJR 1013; [2016] HCA 35, the High Court considered whether it was open to a jury to use post-offence concealment and lies to find the defendant guilty of murder, as distinct from manslaughter. No issues of relevance (or admissibility) arose. However, it was observed that, while such evidence may be “intractably neutral” (at [74]), it may be open in the circumstances of the particular case to the tribunal of fact to reason that it was more consistent with murder than manslaughter (at [76]).

Section 64 Exception – civil proceedings if maker available

In Ying Mui Pty Ltd v Frank Kiang Ngan Hoh (Ruling No 2) [2016] VSC 531, the person who allegedly made a representation had testified without giving evidence of the representation but could be recalled to be cross-examined about it. In those circumstances, Vickery J ruled at [14]–[18] that the person was “available” to give evidence about the representation and this hearsay exception applied.

Section 65 Exception – criminal proceedings if maker not available

In Sio v The Queen (2016) 90 ALJR 963; [2016] HCA 32, the High Court explained at [57] that the focus must be on the particular representation which is said to fall within one of the hearsay exceptions in s 65(2):

It can be seen that the application of s 65(2) proceeds upon the assumption that a party is seeking to prove a particular fact relevant to an issue in the case. It then requires the identification of the particular representation to be adduced in evidence as proof of that fact. The circumstances in which that representation was made may then be considered in order to determine whether the conditions of admissibility are met. This process must be observed in relation to each relevant fact sought to be proved by tendering evidence under s 65.

While each representation relied upon should be considered in context so as to determine whether the conditions of admissibility are met, there should not be a “compendious approach” to a number of representations made about the same time in order to come to a view as to whether all the statements are admissible (at [59]). Thus, s 65(2)(d)(i) requires that the representation tendered against the other party is able to be seen to be against the interests of the maker of the statement (at [56]). While the “circumstances” mean “the circumstances in which the representation was made, its factual setting at the time it was made”, it is established that “evidence of events other than those of the making of the previous representation [can] throw light upon the circumstances of the making of that representation”. This may include other representations which form part of the context in which the relevant representation was made (at [71]). Thus, it was observed that a “representation may be demonstrably unreliable because it is followed by a specific retraction of the assertion of the relevant fact. Statements made by the representor that are demonstrably or inherently incredible, fanciful or preposterous may be circumstances forming part of the context in which a relevant representation is made which tend against a positive evaluation of the likely reliability of that representation”.

As regards the exception in s 65(2)(d), the High Court observed at [64] that the provision “requires a trial judge to be positively satisfied that the representation which is tendered was made in circumstances that make it likely to be reliable notwithstanding its hearsay character”. Another way of expressing the test is that the court must be satisfied that circumstances make it likely that the asserted fact is “likely to be true” (at [63]). An example of such circumstances derived from Wigmore on Evidence 3rd ed (1940), vol 5, §1422 was given (at [64]):

[C]ircumstances that “are such that a sincere and accurate statement would naturally be uttered, and no plan of falsification be formed”; in other words, circumstances that of themselves tend to negative motive and opportunity of the declarant to lie.

In contrast, if the declarant has a motive to lie, the test is unlikely to be satisfied. In Sio v The Queen (2016) 90 ALJR 963; [2016] HCA 32, the particular representation was by an accomplice in the commission of the crimes in question and, as the High Court observed at [65], statements by an accomplice “afford a classic example of a case where a ‘plan of falsification’ may be expected to be formed, given the obvious interest of one co-offender to shift blame onto his or her accomplice, especially where the circumstances also include the opportunity to seek to curry favour with the authorities”. The fact that the representation was made soon after the crime may have negated a danger of honestly mistaken recollection but did nothing to remove the danger arising from a motive to shift blame to the co-offender (at [66]). Of course, the question of reliability only arises if the representation was “against the interests of the person who made it at the time it was made” and that circumstance may point to reliability (at [67]). However, the representation by the accomplice admitted against the appellant, while “against interest”, was nonetheless “plainly apt to minimise his culpability by maximising that of Mr Sio” (at [68]). Nothing else in the objective circumstances in which the statement was made “was apt to shift the balance in favour of a positive finding of likely reliability in respect of” the asserted fact (at [73]). Since the “true concern of the provision is with the identification of circumstances which of themselves warrant the conclusion that the representation is reliable notwithstanding its hearsay character”, it is to risk being distracted from that task to be “overly concerned with what circumstances may properly be taken into account to determine the unreliability of a representation” (at [71]). Further, attention must be directed to an assessment of the circumstances in which the statement was made to establish its likely reliability, rather than to a general assessment of whether or not it is likely that the representor is a reliable witness (at [72]).

Section 79 Exception – opinions based on specialised knowledge

• A board member of a trustee company holding and managing investments did not have the necessary specialized knowledge to express an opinion about the duties and responsibilities of a trustee under the Corporations Act: Oztech Pty Ltd v Public Trustee of Queensland (No 13) [2016] FCA 1153 at [37]–[44].
• The level of “demonstration” required that an opinion is “wholly or substantially based on” specialised knowledge will vary from case to case. Requirements of form may be more easily satisfied or of lesser importance in a given case. In Hart v Federal Commissioner of Taxation (No 2) [2016] FCA 897, a Federal Court judge held at [23] that “strict adherence to the formal requirements of s 79 is of lesser importance” where the field of expertise is relatively objective and less susceptible to inference and speculation than other fields.
• In Director of Public Prosecutions (Vic) v Wise [2016] VSCA 173, the Victorian Court of Appeal cautioned against too ready an assumption that a danger that a jury will give too much weight to certain evidence will be cured by “appropriate directions”. Reference was made to one of the dangers associated with DNA evidence being “what has come to be known as the ‘CSI effect’” (at [70]).

Section 91 Exclusion of evidence of judgments and convictions

Brereton J of the NSW Supreme Court has taken a very restrictive view of this provision, observing that “what s 91 is addressing is the formal record of conviction, the formal record of acquittal or the formal judgment or order disposing of a case in a civil case … not … the reasons for judgment, the findings of fact made by a judge in the course of coming to the final conclusion, nor the remarks on sentence, all of which remain no more than the opinion of the judge”: Re HIH Insurance Ltd (in liq) [2015] NSWSC 790 at [58]. However, it has to be said that the NSW Court of Appeal in Ainsworth v Burden [2005] NSWCA 174 did not approach s 91 in such a narrow way. Hunt AJA considered at [109] that s 91 had application to “Licensing Court judgments” which “contain findings as to the existence of facts relevant to the issues in the trial in which they are tendered” (so long as the finding was relied upon to prove the existence of a fact in issue in that proceeding). There was no suggestion that s 91 should be approached in the restrictive way adopted by Brereton J. In The Prothonotary of the Supreme Court of New South Wales v Sukkar [2007] NSWCA 341, the NSW Court of Appeal held (at [9]) that this provision applied to “the detailed facts found by the sentencing judge [and] by the Court of Criminal Appeal”. Similarly, in Daunt v Daunt [2015] VSCA 58, the Victorian Court of Appeal (at [57]–[59]) applied this provision to a Tribunal “determination” which contained a number of findings of fact. It should be noted that Brereton J considered that his narrow approach to this provision did not render evidence of “reasons for judgment” admissible since his Honour considered that the common law still applied to exclude the evidence. It is suggested that the better view is that s 91 applies more broadly to encompass any “finding of fact” made in another proceeding.

Section 92 Exceptions

In Re HIH Insurance Ltd (in liq) [2015] NSWSC 790, Brereton J of the NSW Supreme Court discussed at [60]–[66] the extension in s 92(2)(a) (of the exception to s 91(1) in relation to evidence that “a party” has been convicted of an offence) to “a person through or under whom a party claims”:

[61] … The words used in the section “through or under whom a party claims” directly import the strict concept of privity that applies in the law of res judicata and issue estoppel. In the leading High Court authority on that question, Ramsay v Pigram (1968) 118 CLR 271; 42 ALJR 89; [1968] HCA 34, Barwick CJ identified the necessary relationship of privity in the context of issue estoppel in these terms:

“The basic requirement of a privy interest is that the privy must claim under or through the person of whom he is said to be a privy.”

[62] The correspondence of the words in that dictum with the terms of the section make very clear that what was intended to be captured was exactly the same concept. …

[63] It is frankly difficult to conceive of circumstances in which a party to a criminal proceeding will have privies for the purpose of s 92(2). …

Section 98 The coincidence rule

In determining whether “the court thinks that the evidence will … have significant probative value”, the court should disregard evidence either adduced or to be adduced by the other party to the proceedings but should assess probative value both of the coincidence evidence alone and in the context of other evidence adduced or to be adduced by the party seeking to adduce the evidence. Accordingly, it was held erroneous for a trial judge to fail to take account other evidence relied upon by the prosecution in seeking to have coincidence evidence admitted: R v Matonwal [2016] NSWCCA 174 at [75].

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

In determining whether evidence of uncharged acts is neither tendency or coincidence evidence because it puts other evidence in context, it would not be a material consideration that the alleged uncharged acts might not have involved a criminal offence (because of, for example, the application of the doli incapax principle). The alleged conduct is “to be viewed from the perspective of the [alleged] victim, and not through the prism of the [defendant’s] criminal responsibility”: Director of Public Prosecutions (Vic) v Martin [2016] VSCA 219 at [110].

Section 119 Litigation

In Hamilton v New South Wales [2016] NSWSC 1213, it was argued that, for the purposes of determining whether a communication was privileged, where a police officer communicated with a solicitor employed in the Office of the Director of Public Prosecutions (ODPP), the relevant person “to whom [the communication] was made” was not the solicitor but the actual Director of Public Prosecutions. However, as Beech-Jones J held at [32], the relevant communication under s 119(a) was “between a lawyer acting for the client and another person”. Accordingly, the relevant person “to whom [the communication] was made” was the ODPP solicitor.

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

• In Macquarie Bank Limited v Arup Pty Limited [2016] FCAFC 117, while the privilege holder put its state of mind in issue and the legal advice received was relevant to that state of mind, there was no basis to conclude that the state of mind must have been informed by or addressed in the legal advice, so that it could not be said that the privilege holder acted inconsistently in seeking to maintain the privilege.
• In Hamilton v New South Wales [2016] NSWSC 1213, Beech-Jones J accepted that “a mere common interest in the outcome of litigation will be sufficient” to ensure that privilege is not lost by disclosure of a privileged communication (at [72]) but observed that “the relevant interest must be more than a mere preference as to how the litigation should unfold” (at [73]). His Honour accepted that “a financial interest in the outcome of litigation may suffice” (at [73]) and held that a common interest in avoiding liability “for misfeasance in public office (or perhaps malicious prosecution)” satisfied the requirement (at [75]) (as well as, possibly, an interest in countering an adverse reflection on a statutory office holder’s performance). It should be pointed out that neither s 122(5)(b) nor s 122(5)(c) have any work to do where the disclosure by a client is to a lawyer acting for the client – in those circumstances, by operation of s 118 (and s 122(5)(a)(i)), the disclosure would not involve the client acting in a manner inconsistently with the maintenance of the privilege because the disclosure is itself a privileged communication (at [47]–[48]).

 Section 130 Exclusion of evidence of matters of state

In Kamasaee v Commonwealth (No 4) [2016] VSC 492, in considering s 130(4)(f) (“prejudice the proper functioning of the government of the Commonwealth or a State”), Macaulay J held at [13] that “the word ‘prejudice’, understood in its ordinary meaning in conjunction with the subject of national defence, security or international relations, encompasses the creation of a risk that falls short of having a 50 per cent chance of eventuating”. Thus, it was sufficient, in order to establish that harm to the national interest will arise from disclosure, to adduce evidence of a “real risk” of harm and it is not necessary to establish that the harm “would” eventuate as a matter of probability.

 Section 137 Exclusion of prejudicial evidence in criminal proceedings

In Director of Public Prosecutions (Vic) v Wise [2016] VSCA 173, the Victorian Court of Appeal cautioned against too ready an assumption that a danger that a jury will give too much weight to certain evidence will be cured by “appropriate directions”. Reference was made to one of the dangers associated with DNA evidence being “what has come to be known as the ‘CSI effect’” (at [70], citing Jenny Wise, “Providing the CSI Treatment: Criminal Justice Practitioners and the CSI Effect” (2010) 21 Current Issues in Criminal Justice 383 at 384). The Court regarded certain DNA evidence as having little or no probative value but that ,”[b]y virtue of its scientific pedigree, however, a jury will likely regard it as being cloaked in an unwarranted mantle of legitimacy – no matter the directions of a trial judge – and give it weight that it simply does not deserve”.

Dictionary “unavailability of persons”

As regards cl 4(1)(c), (“the person is mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability”), in Alzawy v Coptic Orthodox Church Diocese of Sydney, St Mary and St Merkorious Church [2016] NSWSC 1122, Garling J ruled that the test had not been satisfied, emphasising at [32] that, “where the issue is one of mental inability, the question for the Court is not whether the witness will give evidence which may not be accurate or reliable, or whether the witness may find it difficult to concentrate and give such evidence, or whether the witness, by reason of a mental impairment, can only give evidence for short periods of time”.

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