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Uniform Evidence Law Noticeboard – September 2017

Author 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 46 Leave to recall witnesses

A criticism of the evidence of a witness may be given significantly less weight where it was not raised with the witness in compliance with the rule in Browne v Dunn (1893) 6 R 67 (HL): Wilson v Tasmania [2017] TASCCA 11 at [41]-[45].

Section 66 Exception — criminal proceedings if maker available

In Bauer (a Pseudonym) v The Queen (No 2) [2017] VSCA 176 it was held at [112] that "there was no evidence in this case that the occurrence of any relevant asserted fact was 'fresh in the memory' of [the complainant] at the time that she made the previous representations upon which the prosecution sought to rely".

Section 79 Exception — opinions based on specialised knowledge

In Rolleston v Insurance Australia Ltd [2017] NSWCA 168 the New South Wales Court of Appeal held that a valuer had failed to demonstrate how his opinion was based on his specialised knowledge. As Meagher JA stated at [6], "[t]he valuer must explain, in a way which demonstrates the application of the adopted methodology and specialised knowledge, how the comparable sales justify the conclusion as to value".

Section 97 The tendency rule

In Bauer (a Pseudonym) v The Queen (No 2) [2017] VSCA 176, the Victorian Court of Appeal held at [81] that a complainant’s evidence of the defendant’s alleged tendency "lacked any special feature" giving it "significant probative value". The evidence was only of "mere propensity or disposition": at [82].

Section 110 Evidence about character of accused persons

In Clegg v The Queen [2017] NSWCCA 125, the issue arose whether tendency evidence that has been held inadmissible pursuant to s 101 might nonetheless be admitted pursuant to this provision.  The Court of Criminal Appeal held that it could.  Payne JA (with whom Schmidt and Fagan JJ agreed) expressed the view at [83], without deciding the issue, that ss 110(2) and (3) render both s 97 and s 101 inapplicable to prosecution evidence adduced in rebuttal of good character. It was not necessary to decide this because, even if s 101 applied, s 101(3) operated to allow the prosecution to "contradict evidence led by the appellant that raised his good character via tendency reasoning".  Evidence adduced by the prosecution in rebuttal of evidence of good character would fall within the terms of s 101(3).  Of course, the discretions in Pt 3.11 may be applied to the evidence (at [88]) but the fact that the s 101(2) test had not been satisfied would have no bearing on the application of those provisions: see at [88]–[90].

Section 117 Definitions

In respect of the definition of "confidential" communication or document, the issue will arise whether, in the case of a communication, the person who made the communication, or the person to whom the communication was made, was under an express or implied obligation not to disclose its contents, and in the case of a document, whether the person who prepared the document, or the person for whom it was prepared, was under an express or implied obligation not to disclose its contents: Slea Pty Ltd v Connective Services Pty Ltd [2017] VSC 361 at [23].

Section 137 Exclusion of prejudicial evidence in criminal proceedings

In R v Dickman (2017) 91 ALJR 686; [2017] HCA 24, Kiefel CJ, Bell, Keane, Nettle and Edelman JJ accepted the trial judge’s assessment that the probative value of identification evidence adduced by the prosecution was "low". They stated at [43]:

This was an estimate that did not depend upon his Honour’s assessment of [the witness’s] truthfulness or reliability as a witness. Assuming that the jury would accept the … identification at its highest, it was identification with limited capacity to rationally affect the assessment of the probability that the respondent was the [offender].

Matters said to reduce the probative value of the evidence were "the limitations of photographic identification" and the fact that the witness conceded that "the respondent’s photograph bore the closest resemblance to his recollection of the appearance of the [offender]". The "limitations" of photographic identification were not elucidated in the plurality judgment, but may have included a prior police suggestion that the suspected offender’s photograph was present in the photo-board and possible "displacement" from an earlier photographic identification process engaged in by the witness. It was not explained by the High Court how these matters, while plainly undermining the reliability of the witness's opinion that the respondent was the offender, did not involve any assessment by the trial judge of his "reliability as a witness". Nevertheless, the important point is that the Court accepted that the evidence was of low probative value and this may be explained on the basis that, while it might be assumed that the witness was reliably recounting the content of his opinion that the respondent was the offender, this did not mean that the opinion itself was assumed to be reliable.

With respect to "unfair prejudice", Kiefel CJ, Bell, Keane, Nettle and Edelman JJ stated at [48]:

Unfair prejudice may be occasioned because evidence has some quality which is thought to give it more weight in the jury’s assessment than it warrants or because it is apt to invite the jury to draw an inference about some matter which would ordinarily be excluded from evidence.

As regards the former, they concluded at [57] that "the limitations" of the identification evidence admitted in the trial of the respondent "were apparent" and "[t]he trial judge’s conclusion that the danger of unfair prejudice was minimal and could be adequately addressed by direction was justified". While the Victorian Court of Appeal had referred to the "seductive quality" of identification evidence, and observed that this is difficult to ameliorate by judicial directions to the jury, the Court observed at [47] that the identification in that case "was unlikely to have the seductive effect of an identifying witness who is adamant that the accused is the offender", since the witness conceded that he chose a photograph of the respondent which "bore the closest resemblance to his recollection of the appearance of the [offender]". The Court did not suggest that it should generally be assumed that jury directions will be effective, but it is apparent that it was considered that in this case the trial judge was justified in believing that they would be adequate in ameliorating the danger of the jury giving the evidence more weight than it deserved. This conclusion was no doubt based  in part on the proposition that "the limitations" of the identification evidence "were apparent" and, thus, it was not a case where the jury was required to grapple with "abstract notions as to the dangers of identification evidence": at [57].

As regards the latter basis for a finding of unfair prejudice, the Court gave the example of the "rogues’ gallery" effect of photographic identification evidence which creates such a risk because "the appearance of some photographs kept by the police may invite the jury to infer that the accused has a criminal record". In this case, it had been argued that the jury may have inferred that the police had information adverse to the defendant that had not been put before the jury, although the Court concluded at [49]–[56] that there was no basis to consider that such a danger arose.

Section 138 Exclusion of improperly or illegally obtained evidence

Conduct that has been brought to the attention of police previously as non-compliant with legal obligations can increase the gravity of a contravention: R v TA [2017] NTSC 46 at [26].

Section 165 Unreliable evidence

Section 16 of the Jury Directions Act 2015 was considered by the Victorian Court of Appeal in Gul v The Queen [2017] VSCA 153, in the context of evidence said to require a direction not to engage in tendency reasoning. Ashley and Priest JJA stated at [48]:

Plainly, s 16 of the Act imposes a residual obligation on a trial judge to give a direction even though not requested by the parties. It is not, however, an obligation imposed in the abstract. A decision whether to give a direction must be taken paying due regard to the issues raised by the case and to the forensic decisions of counsel; and a direction not requested by the parties can only be given if the reasons for doing so are substantial and compelling. Although one must be careful of substituting for the statutory language, reasons will not be substantial and compelling unless they are of considerable importance and strongly persuasive in the context of the issues in the trial. Thus, for example, a trial judge might give a direction not asked for if he or she considered that the failure to seek a direction was borne of incompetence.

Ashley and Priest JJA held that no such "substantial and compelling reasons" existed in the particular circumstances of that case. In contrast, Croucher AJA, in dissent, held at [175] that "it is plain that there were substantial and compelling reasons for giving an anti-propensity/tendency direction".

Section 174 Evidence of foreign law

In Re Zhang [2017] VSCA 171, the Victorian Court of Appeal stated at [64] that, in the light of this provision, "expert evidence is not the only means by which the content of a foreign law can be proved to the satisfaction of an Australian court". Accordingly, it was held that the trial judge had erred in requiring expert evidence regarding the content of applicable Chinese law.  The Court acknowledged at [65] that "[g]iven the risk of error — and perhaps even abuse — it is understandable why, in many cases, strict proof of foreign law, through expert evidence, may be required" but held that this was not such a case because the trial judge conducted her own research on the applicable Chinese law and the text of the Chinese law of succession that was yielded by that research coincided with the text upon which the applicant relied. As a result, in accordance with s 175(1)(b), "the judge should have been readily satisfied that the text was 'a reliable source of information' about the applicable Chinese law".

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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.