Section 13 Competence: lack of capacity

• In A2 v The Queen [2018] NSWCCA 174, the NSW Court of Criminal Appeal held at [879]–[881] that a trial judge erred in finding that a witness was competent to give sworn evidence, given that the witness “said that she did not know what a lie was, did not know why [not] telling the truth was wrong, did not know why it was important to tell the truth nor why it was important to tell the truth in court”.
• 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. In A2 v The Queen [2018] NSWCCA 174, it was argued that this provision should be applied at the time of the making of the previous representation, so that when the evidence was adduced, the court should assess whether, at the time the representation was made, the person met the requirements for competence to give sworn or unsworn evidence under this provision. However, the NSW Court of Criminal Appeal held that competence is to be determined “at the time of the adduction of the evidence at trial, and not in retrospect” (at [859], [865]).

Section 37 Leading questions

In the NSW Supreme Court, s 37 (relating to examination-in-chief) was applied on the basis that the court can rule that evidence obtained as a result of a leading question is inadmissible where the court did not give retrospective leave for the leading question: R v A2 (No 21) [2016] NSWSC 24 at [34]. In deciding whether to grant such retrospective leave, it is apparent that the circumstances to be taken into account will be somewhat different from those that arise where there is contemporaneous objection. On appeal, the NSW Court of Criminal Appeal saw no error in this approach: A2 v The Queen [2018] NSWCCA 174 at [883]–[887]. It was held at [897] that the relationship between the witness and D1 was relevant to deciding whether to permit leading questions in cross-examination by counsel for D2, bearing in mind that “the subjects on which leading questions were disallowed were subjects which clearly would have related to both” D1 and D2.

Section 42 Leading questions

• In A2 v The Queen [2018] NSWCCA 174, the NSW Court of Criminal Appeal emphasised at [897], in relation to the power of the court to disallow a leading question to a witness in cross-examination, that “the factors in s 42(2) are, although mandatory, not exclusive”.
• In the NSW Supreme Court, it was held that a trial judge may adopt a two-stage approach, initially disallowing leading questions (generally or in respect of a particular topic or topics) and then revisiting the issue with the benefit of the answers to the non-leading questions: R v A2 (No 21) [2016] NSWSC 24 at [57]–[59]. This approach was described, on appeal by the NSW Court of Criminal Appeal in A2 v The Queen [2018] NSWCCA 174 at [894], as “cautious and balanced, appropriate to the nature of the proceedings and the age of the witnesses, and did not deprive the appellants of the opportunity to test the issues in dispute in a meaningful manner”. It was added at [895]: “it does not follow from a witness’ ‘difficulty’ in answering non-leading questions that his Honour erred in adopting the two-phase approach, nor that a revisiting of the ruling, which may have opened up the possibility of leading questions, would have been futile (and indeed, such difficulty may have made it all the more apparent that leading questions might be necessary, although that is no more than speculation)”.

Section 79 Exception: opinions based on specialised knowledge

Specialised knowledge of a cultural practice may be based on anecdotal accounts: A2 v The Queen [2018] NSWCCA 174 at [713].

Section 97 The tendency rule

• Where tendency evidence is adduced to prove the identity of the offender for a known offence, the probative value of the tendency evidence will almost certainly depend upon close similarity between the conduct evidencing the tendency and the offence: Restricted Judgment [2018] NSWCCA 164 at [106]–[107].
• It is important to guard against the assumption that the defendant in fact committed the offence in respect of which the tendency evidence is adduced to prove: Restricted Judgment [2018] NSWCCA 164 at [93].

Section 98 The coincidence rule

• Where the party adducing evidence of a number of acts seeks to rely on similarities in the accounts of those acts, rather than on similarities in the acts themselves, there will be no bar to reliance on those similarities even where the occurrence of one or more of the acts is a fact in issue – the relevant “events” will be the giving of the accounts of the acts, not the acts themselves: A2 v The Queen [2018] NSWCCA 174 at [950]–[953], [1024]–[1025].
• In A2 v The Queen [2018] NSWCCA 174, the NSW Court of Criminal Appeal appeared to accept at [1036] that it was permissible to take into account the way that certain similar allegations were elicited (where it contended that the similarities were not an improbable coincidence but, rather, a result of the form of questioning), although the Court found that the relevant answers “were in response to non-leading questions”.

Section 146 Evidence produced by processes, machines and other devices

As was pointed out by Blokland J in R v Yatno [2018] NTSC 53 at [18], “[a]lthough accuracy of the data is not the defining issue with respect to the operation of the presumption, without some regard to reliability there would be no reason to rely on the device or process”. The requirement in s 146(2), that the court to be satisfied that “it is reasonably open to find that the device or process is one that, or is of a kind that, if properly used, ordinarily produces that outcome”, was satisfied in respect of a global positioning system taking into account “wide acceptance of the accuracy and admissibility of GPS evidence” (at [18]).

Section 165 Unreliable evidence

Section 293A of the Criminal Procedure Act 1986 (NSW) deals with a situation where a jury might regard the credibility of a complainant’s account in prescribed sexual offence proceedings undermined on the basis of a gap or inconsistency in the account or a difference between the account and another account. It provides that a judge “may inform the jury:

  (a) that experience shows:
    (i) people may not remember all the details of a sexual offence or may not describe a sexual offence in the same way each time, and
       (ii) trauma may affect people differently, including affecting how they recall events, and
       (iii) it is common for there to be differences in accounts of a sexual offence, and
       (iv) both truthful and untruthful accounts of a sexual offence may contain differences, and
   (b) that it is up to the jury to decide whether or not any differences in the complainant’s account are important in assessing the complainant’s truthfulness and reliability.”

The references to “difference” should be understood in terms of the definition of that term in s 293A(3). It is apparent that this provision is designed to provide “counter-intuitive” information to jurors to correct misconceptions regarding evidence adduced in certain sexual offence proceedings, particularly involving child complainants. It is a pre-condition for the operation of the provision that the judge have first heard submissions from the prosecution and the defence and concluded that “there is evidence that suggests a difference in the complainant’s account that may be relevant to the complainant’s truthfulness or reliability”: s 293A(1). The words “may inform the jury” in s 293A(2) confer a discretion on the judge regarding the provision of the information to the jury but it is to be expected that, if the pre-conditions to the provision are satisfied, judges should provide the specified information in a form appropriate for the particular circumstances of the case (and the particular “difference” or “differences” that the evidence “suggests”).

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