Principles of Australian Evidence

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PRINCIPLES OF EVIDENCE

CP

Cavendish Publishing (Australia) Pty Limited

Sydney • London

PRINCIPLES OF EVIDENCE Andrew Palmer, BA, LLB (Hons), BCL, Senior Lecturer, Law School, University of Melbourne

SERIES EDITOR Professor Philip H Clarke Professor of Law, Head of School, Deakin University

CP

Cavendish Publishing (Australia) Pty Limited

Sydney • London

First published in 1998 by Cavendish Publishing (Australia) Pty Limited, 3/303 Barrenjoy Road, Newport, New South Wales 2106 Telephone: (02) 9999 2777 Facsimile: (02) 9999 3688 Email: [email protected] Cavendish Publishing Limited, The Glass House, Wharton Street, London WC1X 9PX, United Kingdom Telephone: + 44 (0)20 7278 8000 Facsimile: + 44 (0)20 7278 8080 Email: [email protected] Website: www.cavendishpublishing.com

© Palmer, A 1998 Reprinted 2001

All rights reserved. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the publisher and copyright owner.

Any person who infringes the above in relation to this publication may be liable to criminal prosecution and civil claims for damages.

Australia Cataloguing in Publication Data Palmer, Andrew Principles of Evidence 1. Evidence – Australia I. Title

ISBN 1 876213 06 X

Printed and bound in Great Britain

To my grandfather, Frank Boyce, and my children, Alex, Owen and Anna

PREFACE This book has been written with the aim of stating the law of evidence in a form which can be readily understood and easily applied by both tertiary students and legal practitioners. For this reason, the law has been stated in a way which, I hope, allows the broad principles of the law of evidence to emerge from the often confusing detail of many of its rules. This does not mean to say that the book’s statement of those principles would be universally accepted or entirely uncontroversial. As with any other area of law, the law of evidence is in a constant state of evolution, and the nature, scope and operation of its rules are constantly being contested by academics, practitioners and judges. The book is also obviously intended to make a contribution to these processes by putting forward particular views about the present state, and future development, of the law of evidence. The fact that the writing of this book did not begin until after the enactment of the Commonwealth and New South Wales Evidence Acts 1995 has been a distinct advantage. These Acts – referred to in this work as ‘the uniform evidence legislation’ – have brought about sweeping reforms to the law of evidence in those jurisdictions in which they apply. The fact that writing began only after their enactment has enabled me to integrate the uniform evidence legislation with the common and statutory law of evidence applying in other jurisdictions, in a way which recognises their equal importance, and which highlights both their similarities and their points of difference. The uniform evidence legislation also reorganises the law of evidence, and replaces much of its traditional terminology with new and more precise language. I have, generally, adopted the structure and terminology of the legislation because, I believe, it enables the law of evidence to be presented in a far more comprehensible and accessible manner, even for those jurisdictions where the legislation does not apply. Finally, I would like to thank my publisher, Jo Reddy, for her patience; my research assistant, Christine Bateup, for her help in tracking down, or checking, many of the references; and the last four years worth of Evidence students at the University of Melbourne, whose comments and questions have continually forced me to revise and refine my approach to the law of evidence. Responsibility for the errors which remain is obviously my own. Andrew Palmer Melbourne March 1998

vii

CONTENTS Preface Table of cases Table of statutes

vii xxi xxxv

1 INTRODUCTION 1.1 The law of evidence 1.1.1 Introduction 1.1.2 Sources of the law of evidence 1.1.3 The various Australian jurisdictions 1.1.4 Organisation of the law of evidence 1.1.5 Civil and criminal proceedings 1.2 Some principles of proof 1.2.1 Principles promoting accurate fact-finding 1.2.2 Principles compromising accurate fact-finding 1.3 Types of evidence 1.4 The common law trial 1.4.1 The adversarial nature of proceedings 1.4.2 Judge and jury 1.4.3 Questions of admissibility and the voir dire 1.4.4 The order of proceedings 1.4.5 Appeals

1 1 1 1 2 4 4 5 5 9 11 12 12 13 14 15 16

PART I: ADDUCING EVIDENCE OVERVIEW OF PART I

21 23

2 WITNESSES 2.1 Introduction 2.1.1 Overview 2.1.2 The common law’s preference for oral testimony 2.2 The competence and compellability of witnesses 2.2.1 Sworn evidence 2.2.2 Unsworn evidence 2.2.3 Compellability 2.2.4 Failure to call a witness 2.3 Special classes of witness 2.3.1 Children 2.3.2 Physically or mentally disabled witnesses 2.3.3 Complainants in sexual offence trials 2.3.4 The accused 2.3.5 The accused’s family 2.4 The examination of witnesses 2.4.1 Manner and form of questioning 2.4.2 The role of the judge

25 25 25 25 26 26 28 28 29 30 30 34 34 35 37 38 39 40

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Principles of Evidence

2.5

2.4.3 Examination-in-chief 2.4.4 Cross-examination 2.4.5 Re-examination Summary 2.5.1 Competence and compellability 2.5.2 The examination of witnesses

40 45 48 49 49 49

3 DOCUMENTS 3.1 Introduction 3.1.1 Overview 3.1.2 The purposes for which the contents of documents can be adduced 3.2 What is a document? 3.3 Secondary evidence of the contents of a document 3.3.1 Common law 3.3.2 The uniform evidence legislation 3.4 Authentication of documents 3.5 Particular kinds of documents 3.5.1 Audio and video recordings 3.5.2 Computer-generated evidence 3.5.3 Voluminous and complex documents 3.6 Summary

51 52 53 53 54 55 56 56 56 57 57

4 REAL EVIDENCE 4.1 Introduction 4.1.1 Overview 4.1.2 General principles 4.2 Physical objects 4.3 Audio and video recordings 4.3.1 Relevance and authenticity 4.3.2 Secondary evidence 4.4 Photographs 4.5 Maps, models, charts and diagrams 4.6 Views, demonstrations, experiments and inspections 4.6.1 Views and inspections 4.6.2 Demonstrations 4.6.3 Experiments 4.6.4 The evidential status of views 4.6.5 Ordering a view 4.7 Summary

59 59 59 59 60 61 61 62 63 63 64 64 64 65 65 65 66

x

51 51 51

Contents

PART II: ADMISSIBILITY OF EVIDENCE OVERVIEW OF PART II Admissibility of evidence flow chart

69 71 72

5 RELEVANCE 5.1 Introduction 5.2 The fundamental rule of evidence 5.2.1 Relevant to what? 5.2.2 Definition of relevance 5.3 The different ways in which evidence can be relevant 5.3.1 Direct evidence 5.3.2 Circumstantial evidence 5.3.3 An illustration of the difference 5.4 Applying the test of relevance 5.4.1 A matter of common sense 5.4.2 Spelling out the connections 5.4.3 The syllogism 5.5 A threshold of sufficiency 5.5.1 ‘Legal’ relevance 5.5.2 A discretionary approach 5.6 Provisional relevance 5.7 Summary

75 75 75 75 76 76 77 77 79 80 80 81 81 82 82 83 84 86

6 HEARSAY: THE EXCLUSIONARY RULE 6.1 Introduction 6.1.1 Overview 6.1.2 Rationale for the hearsay rule 6.1.3 General approach of the law 6.1.4 Scope of the hearsay rule 6.1.5 Terminology 6.2 Definition of hearsay 6.2.1 Common law 6.2.2 Examples of hearsay and of original evidence 6.2.3 Uniform evidence legislation 6.2.4 Dual relevance 6.2.5 The declarant’s state of mind 6.3 Implied assertions 6.3.1 Wright v Tatham 6.3.2 Implied assertions defined 6.3.3 Inferences from fear 6.3.4 Inferences from intention 6.3.5 Inferences from belief 6.3.6 Classifying the evidence as ‘conduct’

87 87 87 87 89 89 90 90 90 92 93 94 95 96 96 96 98 99 101 102

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Principles of Evidence 6.4

Summary 6.4.1 Common law 6.4.2 The uniform evidence legislation Hearsay: common law flow chart Hearsay: uniform evidence legislation flow chart

7 HEARSAY: EXCEPTIONS TO THE RULE 7.1 Introduction 7.1.1 Overview 7.1.2 Rationale of the exceptions 7.1.3 Development of the exceptions 7.2 Structure of the uniform evidence legislation 7.2.1 ‘First-hand’ and more remote hearsay 7.2.2 Availability of declarant 7.2.3 Civil and criminal proceedings 7.2.4 Competency of declarant 7.3 First-hand hearsay 7.3.1 Civil proceedings: maker unavailable or inconvenient to call 7.3.2 Criminal proceedings: representations adduced by the defence 7.3.3 Representations made under a duty 7.3.4 Res gestae and contemporaneous representations 7.3.5 Dying declarations 7.3.6 Reliable representations 7.3.7 Representations against interest 7.3.8 Representations made in other proceedings 7.3.9 Witness’s prior representations 7.4 Other exceptions 7.4.1 Business records 7.4.2 Contents of tags, labels and writing 7.4.3 Telecommunications 7.4.4 Statements identifying the parties to a telephone conversation 7.4.5 Contemporaneous statements about a person’s health, etc 7.4.6 Reputation as to relationships and age 7.4.7 Reputation of public or general rights 7.4.8 Interlocutory proceedings 7.5 Summary 7.5.1 Uniform evidence legislation jurisdictions 7.5.2 Non-uniform evidence legislation jurisdictions Hearsay exceptions: uniform evidence legislation flow chart Hearsay exceptions: common law jurisdictions flow chart

xii

105 105 105 106 107 109 109 109 109 110 111 112 112 113 113 113 114 115 117 118 120 121 122 123 124 126 126 127 128 128 129 130 130 131 131 131 133 134 135

Contents 8 OPINION EVIDENCE 8.1 Introduction 8.1.1 Overview 8.1.2 The rule against opinion evidence 8.2 Lay opinions 8.3 Expert opinion 8.3.1 Common law 8.3.2 Uniform evidence legislation 8.4 Does the jury need help? 8.4.1 A ‘common knowledge’ rule? 8.4.2 Human behaviour 8.4.3 Syndrome evidence 8.5 Can this expert provide the help the jury needs? 8.5.1 Is there a recognised area of expertise? 8.5.2 Is the witness qualified within that area of expertise? 8.5.3 Is the evidence unreliable or confusing? 8.6 Other limitations on an expert’s testimony 8.6.1 The basis rule 8.6.2 An ultimate issue rule? 8.7 Summary Opinion evidence flow chart

137 137 137 137 138 139 139 140 141 141 142 144 146 146 148 149 150 150 152 152 154

9 ADMISSIONS 9.1 Overview 9.2 Definition 9.2.1 What is an admission? 9.2.2 Vicarious admissions 9.2.3 Personal knowledge 9.3 Admissions in civil proceedings 9.4 ‘Implied admissions’ and ‘admissions by conduct’ 9.5 Silence as an admission 9.5.1 The right to silence defined 9.5.2 Abolition of the right to silence 9.5.3 Non-exercise of the right to silence 9.5.4 Silence in other situations 9.6 Summary

155 155 155 155 156 158 158 158 160 160 161 162 163 164

10 ADMISSIONS AND CONFESSIONS BY THE ACCUSED 10.1 Introduction 10.1.1 Overview 10.1.2 Terminology: admissions and confessions 10.1.3 The importance and the danger of confessions 10.1.4 Scope of these rules

165 165 165 165 165 166

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Principles of Evidence 10.2 Statutory recording provisions 10.2.1 Introduction: the common law’s response to concerns about police fabrication of confessions 10.2.2 New statutory rules of admissibility 10.2.3 Admissions and confessions 10.2.4 Made by a suspect 10.2.5 To an investigating official 10.2.6 During official questioning 10.2.7 What must be recorded? 10.2.8 Relating to an indictable offence 10.2.9 Excuses for failure to record 10.2.10 Availability of recording 10.2.11 Use of the tape recording 10.3 Common law 10.3.1 The requirement of voluntariness 10.3.2 The meaning of voluntariness 10.3.3 Oppressive conduct 10.3.4 Inducements 10.3.5 Where there is no external pressure to confess 10.4 The uniform evidence legislation 10.4.1 Violence and other conduct 10.4.2 Reliability 10.4.3 Unsigned records of interview 10.5 The fairness discretion 10.5.1 Unreliability 10.5.2 Upholding rights 10.6 Summary Admissions and confessions by the accused flow chart 11 JUDGMENTS AND CONVICTIONS 11.1 Introduction 11.1.1 Overview 11.1.2 Relevance of judgments and convictions 11.1.3 Arguments for exclusion and admission 11.2 Criminal convictions in civil proceedings 11.2.1 Common law jurisdictions 11.2.2 Uniform evidence legislation 11.3 Other uses of judgments and convictions 11.3.1 Civil judgments 11.3.2 Criminal convictions in defamation proceedings 11.3.3 Acquittals 11.3.4 Criminal convictions in criminal proceedings 11.5 Summary

xiv

167 167 168 169 169 170 171 172 173 174 175 175 176 176 177 178 179 180 181 182 182 183 184 184 185 187 189 191 191 191 191 192 193 193 193 194 194 194 195 195 195

Contents 12 TENDENCY AND COINCIDENCE EVIDENCE 12.1 Introduction 12.1.1 Overview 12.1.2 The uniform evidence legislation 12.1.3 Common law 12.2 What are tendency and coincidence evidence? 12.2.1 Tendency evidence 12.2.2 Coincidence evidence 12.3 Tendency and coincidence evidence in civil proceedings 12.4 Tendency and coincidence evidence in criminal proceedings: third parties 12.5 Tendency and coincidence evidence in sexual offence trials 12.5.1 The effect of admitting sexual history evidence 12.5.2 Rape shield provisions 12.5.3 Granting of leave: some examples 12.6 Tendency and coincidence evidence in joint trials 12.6.1 Common law 12.6.2 The uniform evidence legislation 12.7 Summary 12.7.1 Uniform evidence legislation jurisdictions 12.7.2 Common law jurisdictions 12.7.3 Tendency evidence relating to complainants in sexual offence trials 13 TENDENCY AND COINCIDENCE EVIDENCE: THE ACCUSED 13.1 Introduction 13.1.1 Overview 13.1.2 Terminology 13.1.3 Rationale for the rules 13.1.4 A rule with exclusionary and inclusionary aspects 13.1.5 A warning about older judgments 13.2 The scope of the exclusionary rule 13.2.1 The contents of the evidence 13.2.2 The use to which the evidence is put 13.2.3 Multiple counts 13.3 The inclusionary exception 13.3.1 The test for admissibility 13.3.2 Assessing prejudicial effect 13.3.3 Assessing probative value 13.4 Summary 13.4.1 The exclusionary rule 13.4.2 The inclusionary exception 13.4.3 Assessing probative value 13.4.4 Assessing prejudicial effect Tendency and coincidence evidence: the accused flow chart xv

197 197 197 197 199 199 199 199 200 201 202 203 204 208 210 211 212 212 212 213 213 215 215 215 215 216 217 217 218 219 220 229 229 229 232 234 238 238 239 240 240 241

Principles of Evidence 14 CREDIBILITY EVIDENCE 14.1 Introduction 14.1.1 Overview 14.1.2 What is credibility evidence? 14.1.3 The relevance of credibility evidence 14.2 The admissibility of credibility evidence 14.3 Impeaching credibility through cross-examination 14.3.1 Common law 14.3.2 The uniform evidence legislation 14.3.3 Impeaching the credibility of a hostile witness 14.4 Rebutting false denials 14.4.1 The general rule 14.4.2 Exceptions to the rule: common law 14.4.3 Exceptions to the rule: uniform evidence legislation 14.5 Re-establishing credibility 14.5.1 Re-examination 14.5.2 Prior consistent statements 14.5.3 Expert evidence 14.6 The credibility of complainants in sexual offence trials 14.6.1 Prior consistent statements 14.6.2 Delay 14.6.3 Sexual history evidence 14.7 The credibility of hearsay 14.8 Summary

243 243 243 243 244 244 245 245 247 248 248 248 249 250 251 251 252 252 253 253 254 255 256 257

15 THE CHARACTER AND CREDIBILITY OF THE ACCUSED 15.1 Introduction 15.1.1 Overview 15.1.2 What is character evidence? 15.2 The accused’s good character 15.2.1 Leading evidence of good character 15.2.2 Common law 15.2.3 The uniform evidence legislation 15.3 Rebutting a claim of good character 15.3.1 Has the accused placed his or her character in issue? 15.3.2 Is character divisible? 15.3.3 How can the claim be rebutted? 15.3.4 The effect of rebuttal evidence 15.4 Cross-examining the accused 15.4.1 The prohibited questions: the uniform evidence legislation 15.4.2 The prohibited questions: the 1898 legislation 15.4.3 Where the accused has claimed to be of good character 15.4.4 Where the accused has made imputations against the character of prosecution witnesses

259 259 259 259 260 260 260 260 261 261 262 263 263 264

xvi

265 266 267 268

Contents 15.5 Joint trials 15.5.1 The co-accused’s character 15.5.2 Cross-examination by the co-accused 15.6 Summary 15.6.1 Evidence of the accused’s good character 15.6.2 Rebutting a claim of good character 15.6.3 Cross-examining the accused Cross-examination of accused: 1898 legislation flow chart Cross-examination of accused: uniform evidence legislation flow chart

274 275 275 278 278 278 278 280

16 IDENTIFICATION EVIDENCE 16.1 Introduction 16.1.1 Overview 16.1.2 What is identification evidence? 16.1.3 The dangers of identification evidence 16.2 The main methods of identification 16.2.1 Picture identification 16.2.2 Identification parades 16.2.3 Single suspect identification 16.3 The admissibility of identification evidence 16.3.1 The basis for admitting a prior identification 16.3.2 The common law approach to identification evidence 16.3.3 The uniform evidence legislation 16.4 Summary

283 283 283 283 285 286 286 287 288 288 288 290 293 297

17 PRIVILEGE AND IMMUNITY 17.1 Introduction 17.1.1 Overview 17.1.2 Powers to compel disclosure 17.1.3 The public policy basis of the law of privilege 17.1.4 Effect of a claim of privilege 17.2 Legal professional privilege 17.2.1 Justification for the privilege 17.2.2 Scope of the privilege 17.2.3 Corporate and government lawyers 17.2.4 Communications made for an improper purpose 17.2.5 The privilege in criminal proceedings 17.2.6 Waiver and loss of privilege 17.3 The privilege in aid of settlement 17.4 The privilege against self-incrimination 17.4.1 Justification for the privilege 17.4.2 Scope of the privilege 17.4.3 Corporations and the privilege against self-incrimination

299 299 299 299 301 301 302 303 304 305 305 306 306 307 308 308 309 310

xvii

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Principles of Evidence 17.4.4 Grounds for claiming the privilege 17.4.5 Overriding the privilege 17.5 Public interest immunity 17.5.1 The nature of public interest immunity 17.5.2 The interest in non-disclosure 17.5.3 The interest in disclosure 17.5.4 The balancing exercise 17.5.5 Court inspection 17.6 Confidential relationships 17.7 Summary 17.7.1 Legal professional privilege 17.7.2 The privilege in aid of settlement 17.7.3 The privilege against self-incrimination 17.7.4 Public interest immunity

310 311 312 312 313 317 318 318 319 320 320 320 321 321

18 DISCRETIONS TO EXCLUDE EVIDENCE 18.1 Introduction 18.1.1 Overview 18.1.2 Nature of discretion 18.1.3 The uniform evidence legislation 18.2 Prejudicial evidence 18.2.1 Common law 18.2.2 The uniform evidence legislation 18.2.3 Applying the discretion 18.3 Misleading, confusing and time-wasting evidence 18.4 Illegally or improperly obtained evidence 18.4.1 The Australian approach 18.4.2 Confessions and the fairness discretion 18.4.3 When is evidence improperly or illegally obtained? 18.4.4 The factors to take into account 18.5 Summary

323 323 323 323 324 324 324 325 326 327 328 329 330 331 332 333

PART III: PROOF OVERVIEW OF PART III

335 337

19 THE BURDEN AND STANDARD OF PROOF 19.1 Introduction 19.2 The burden of proof 19.2.1 The legal burden 19.2.2 The evidential burden 19.2.3 The burden of proof on a voir dire 19.3 The standard of proof 19.3.1 Civil proceedings

339 339 339 339 340 341 342 342

xviii

Contents 19.3.2 Criminal proceedings 19.3.3 Facts relevant to the admissibility of evidence 19.4 Summary 19.4.1 Civil proceedings 19.4.2 Criminal proceedings

343 343 344 344 345

20 MATTERS OF WHICH PROOF NEED NOT BE GIVEN 20.1 Introduction 20.2 The doctrine of judicial notice 20.2.1 The effect of judicial notice 20.2.2 Australian law 20.2.3 Facts forming part of common knowledge 20.2.4 Facts which can be verified by reference to an authoritative document 20.2.5 Matters of State 20.3 Formal admissions and agreed facts 20.3.1 Civil proceedings 20.3.2 Criminal proceedings 20.4 Summary

347 347 347 347 348 349

21 CORROBORATION AND JUDICIAL WARNINGS 21.1 Introduction 21.2 The form of judicial warnings 21.2.1 Judicial warnings at common law 21.2.2 Judicial warnings under the uniform evidence legislation 21.2.3 The nature of corroboration 21.3 Categories of unreliable evidence 21.3.1 Perjury prosecutions 21.3.2 Hearsay and admissions 21.3.3 Identification evidence 21.3.4 The evidence of children and the elderly 21.3.5 The evidence of physically or mentally ill or injured witnesses 21.3.6 The evidence of accomplices 21.3.7 Evidence of an admission given by a prison informer 21.3.8 Disputed police evidence of an admission 21.3.9 The evidence of claimants against deceased estates 21.3.10 The evidence of complainants in sexual offence trials 21.3.11 New categories of unreliable evidence 21.4 Other unreliable evidence 21.5 Summary

355 355 355 355

Index

350 351 351 351 353 354

356 357 359 359 360 360 361 362 363 365 366 367 367 368 369 369 371

xix

TABLE OF CASES Aboriginal Sacred Sites Protection Authority v Maurice (1986) 10 FCR 104 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 315 Ahern v R (1988) 165 CLR 87. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85, 157 Alexander v R (1981) 145 CLR 395 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287–92, 296 Alexander v R [1994] 2 VR 249 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163 Alister v R (1983) 154 CLR 404 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 317, 318 Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 Allstate Life Insurance Co v Australasia & New Zealand Banking Group (No 32) (1996) 136 ALR 627. . . . . . . . . . . . . . . . . . . . . . . . . 137 Ashburton v Pape [1913] 2 Ch 469 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 302 Attorney General (NT) v Kearney (1985) 158 CLR 500. . . . . . . . . . . . . . . 305, 306 Attorney General for New South Wales v Smith (1996) 86 A Crim R 308 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 316 Attorney General v Hitchcock (1847) 1 Exch 91; 154 ER 38 82, 83, 249 Attorney General’s Reference (No 2 of 1993) (1994) 4 Tas R 26. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Attwood v R (1960) 102 CLR 353 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 260, 266 Australian Oil Refining Pty Ltd v Bourne (1979) 54 ALJR 192 . . . . . . . . . . . . 141 Australian Securities Commission v AS Nominees Ltd (1995) 133 ALR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 B v R (1992) 175 CLR 599 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228 Bannon v R (1995) 185 CLR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121, 123 Barden v Barden (1921) 21 SR(NSW) 588 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 308 Bataillard v R (1907) 4 CLR 1282 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474. . . . . . . . . . . . . . . . . . . 246 Black v R (1993) 179 CLR 44. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 367 Blunt v Park Lane Hotel [1942] 2 KB 253. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 310 Borowski v Quayle [1966] VR 382. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151 Bromley v R (1986) 161 CLR 315. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 362, 363, 369 Browne v Dunn (1894) 6 R 67 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47, 48, 50, 300 Bulejcik v R (1996) 185 CLR 375 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 284 Bunning v Cross (1978) 141 CLR 54 . . . . . . . . . . . . . . . . . . . . . . . . . . . 329, 332, 333 Burmah Oil v Bank of England [1980] AC 1090 . . . . . . . . . . . . . . . . . . . . . . . . . 313

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Principles of Evidence Burns v R (1975) 132 CLR 258 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177 Butera v DPP (1987) 164 CLR 180. . . . . . . . . . . . . . . . . . . . . . . . . . 25, 26, 39, 61, 62 C v R (1993) 60 SASR 467 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145, 253 Cain v Glass (No 2) [1985] 3 NSWLR 230 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 316 Calcraft v Guest [1898] 1 QB 759. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 302 Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351 Carroll v R (1985) 19 A Crim R 410 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147 Carter v Managing Partner, Northmore Hale Davy & Leake (1995) 183 CLR 121 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303, 306 Carusi v R (1997) 92 A Crim R 52 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291 Chamberlain v R (No 2) (1984) 153 CLR 521 . . . . . . . . . . . . . . . . . . . . 17, 149, 343 Chidiac Case (1991) 171 CLR 432 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Cleland v R (1982) 151 CLR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 331 Collins v R (1980) 31 ALR 257 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179–81, 185 Commissioner of Police for the Metropolis v Hills [1978] 3 WLR 423. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 276 Commissioner, Australian Federal Police v Propend Finance Pty Ltd (1997) 71 ALJR 327 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 305 Commonwealth v Northern Land Council (1993) 176 CLR 604 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 313–15, 318 Comptroller of Customs v Western Lectric [1966] AC 367. . . . . . . . . . . . . . . . 158 Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs (1985) 156 CLR 385 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 309 Cornelius v R (1936) 55 CLR 235. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178 Crabbe v R (1984) 56 ALR 733 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 261 Craig v R (1933) 49 CLR 429 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 285 Crosthwaite v City of Elizabeth (1989) 51 SASR 105 . . . . . . . . . . . . . . . . . . . . . . 48 Curwood v R (1944) 69 CLR 561 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 270 D v NSPCC [1978] AC 171 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 316 Daubert v Merrell Dow Pharmaceuticals 113 S Ct 2786 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148 Davidson v Quirke (1923) 42 NZLR 552 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 Davies and Cody v R (1937) 57 CLR 170. . . . . . . . . . . . . . . . . . . . . 18, 19, 288, 291

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Table of Cases Davies v DPP [1954] AC 378 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 364 Dawson v R (1961) 106 CLR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216, 269, 270 Dawson v R (1990) 2 WAR 458 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 292 De Jesus v R (1986) 68 ALR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229 Di Carlo v US 6 F 2d 364 (1925) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90 Dilosa v Latec Finance Pty Ltd (1966) 84 WN (Pt 1) (NSW) 557. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Domican v R (1992) 173 CLR 555 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 292, 293, 369 Donnini v R (1972) 128 CLR 114 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 272 DPP v A and BC Chewing Gum [1968] 1 QB 159. . . . . . . . . . . . . . . . . . . . . . . . 144 DPP v Boardman [1975] AC 421 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223, 237 DPP v Hester [1973] AC 296 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 357, 358 DPP v Kilbourne [1973] AC 729 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 358 DPP v P [1991] 2 AC 447 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238 DPP v Ping Lin [1976] AC 574 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180 Driscoll v R (1977) 137 CLR 517 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 325, 327 Duff v R (1979) 28 ALR 663 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202 Duke v R (1989) 180 CLR 508 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185, 187 Duncan v Cammell Laird [1942] AC 624. . . . . . . . . . . . . . . . . . . . . . . . . . . 313, 314 Eade v R (1924) 34 CLR 154 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 358 Edwards v R (1993) 178 CLR 193 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159, 358, 359 Enoch and Zaretzky, Bock & Co Arbitration, Re [1910] 1 KB 327. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Environmental Protection Authority v Caltex Oil Refining Co Pty Ltd (1993) 178 CLR 477 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177, 308–10 Ewer v Ambrose (1825) 3 B&C 746; 107 ER 910 . . . . . . . . . . . . . . . . . . . . . . . . . . 44 F v R (1995) 83 A Crim R 502 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145, 146, 149, 253 Field v Commissioner for Railways for New South Wales (1957) 99 CLR 285 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 307 Fizzell v R (1987) 31 A Crim R 213 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151 Foster v R (1993) 113 ALR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186, 187, 330, 331 Frye v United States 293 F 1013 (1923). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147, 148

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Principles of Evidence Gordon M Jenkins & Associates Pty Ltd v Coleman (1989) 87 ALR 477 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 348 Grant v Downs (1976) 135 CLR 647 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 304 Green v R (1971) 126 CLR 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343 Gregory v R (1983) 151 CLR 566 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209 H v R (1997) 92 A Crim R 168 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43, 125, 254 Hamilton v Oades (1989) 166 CLR 486 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 309 Hargan v R (1919) 27 CLR 13. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351 Harriman v R (1989) 167 CLR 590 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163. 223, 228 Heatherington v Brooks [1963] SASR 321 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Heatherington v R (1994) 179 CLR 370 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173 Hoch v R (1988) 165 CLR 292 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223, 224, 235, 237, 238 Holdsworth v Mayor of Dartmouth (1838) 2 M & Rob 153; 174 ER 246. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 248 Hollingham v Head (1858) 4 CB (NS) 388; 140 ER 1136 . . . . . . . . . . . . . . 200, 201 Hollington v Hewthorn & Co Ltd [1943] KB 587. . . . . . . . . . . . . . . . . . . . . . . . 193 Hong Kong Bank of Australia Ltd v Murphy (1992) 28 NSWLR 512 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 308 Horman v Bingham [1972] VR 29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 350 Horne v Comino [1966] Qd R 202. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158 Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 Hussien v Chong Fook Kam [1970] AC 942 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170 J v R (1994) 75 A Crim R 522 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147, 253 Jones v DPP [1962] AC 635. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267 Jones v R (1997) 143 ALR 52. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253 Jones v Dunkel (1959) 101 CLR 298 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 30 Khan v R [1971] WAR 44 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 364 Kozul v R (1981) 147 CLR 221 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 Lam Chi-Ming v R [1991] 2 AC 212 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176, 177 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 352

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Table of Cases Line v Taylor (1862) 3 F&F 731; 176 ER 335. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 Longman v R (1989) 168 CLR 79. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 368, 369 Lowery and King v R [1974] AC 85 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 275 Lustre Hosiery Pty Ltd v York (1935) 54 CLR 134 . . . . . . . . . . . . . . . . . . . . . . . 158 M v R (1994) 181 CLR 487. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 MacPherson v R (1981) 147 CLR 512 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177 Macrae v R (1995) 80 A Crim R 380 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101, 353 Makin v Attorney General (NSW) [1894] AC 57 . . . . . . . . . . . . 217, 218, 224, 227 Malindi v R [1967] 1 AC 439 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 262 Marijancevic v R (1991) 54 A Crim R 431. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169 Matthews v R [1973] WAR 110 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 270, 271 Matusevich v R (1977) 137 CLR 633 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 276 Maxwell v DPP [1935] AC 309. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 272 McCarthy and Ryan v R (1993) 71 A Crim R 395 . . . . . . . . . . . . . . . . . . . . . . . . . 79 McDermott v R (1948) 76 CLR 501 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177–79, 184 McGregor v Stokes [1952] VLR 347 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 McKinney v R (1991) 171 CLR 468 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 366–68 McLellan v Bowyer (1961) 106 CLR 95 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 McNee v Kay [1953] VLR 520 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 364 Mickelberg and Mickelberg v Director of Perth Mint [1986] WAR 365 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193 Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 . . . . . . . . . . . . . . . . . . . . . . . . 151 Miller v Minister of Pensions [1947] 2 All ER 372 . . . . . . . . . . . . . . . . . . . . . . . 343 Mister Figgins v Centrepoints Freeholds (1981) 36 ALR 23 200, 201 Moore v Giofrelle [1952] ALR (CN) 1049. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193 Murdoch v Taylor [1965] AC 574 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 277 Murphy v R (1989) 167 CLR 94 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139, 142–44, 148, 151, 152 Myers v DPP [1965] AC 1001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110, 111, 126 Natta v Canham (1991) 104 ALR 143 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 250 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 342 Nominal Defendant v Clements (1960) 104 CLR 476 . . . . . . . . . . . . . . . . . . . . 252

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Principles of Evidence O’Leary v R (1946) 73 CLR 566 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223, 228 Olmstead v US 277 US 438 (1928) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 328 PQ v Australian Red Cross Society [1992] 1 VR 19 . . . . . . . . . . . . . . . . . . . . . . 151 Parkes v R [1976] 3 All ER 380 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163 Payne v Parker [1976] 1 NSWLR 191 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Pearce v Button (1985) 8 FCR 388 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 330 Permanent Trustee Co of NSW v Fels [1918] AC 879 . . . . . . . . . . . . . . . . . . . . . 56 Perry v R (1982) 150 CLR 580 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225–27, 233, 234 Petty and Maiden v R (1991) 173 CLR 95 . . . . . . . . . . . . . . . . . . . . . . . . . . 160, 161 Pfennig v R (1995) 182 CLR 461 . . . . . . . . . . . . . . . . . . . . . . . . . . . 216, 217, 219–22, 224, 226, 228–30, 232, 233, 235, 236 Phillips v R (1985) 159 CLR 45 . . . . . . . . . . . . . . . . . . . . . . . 268, 270, 271, 273, 274 Piddington v Bennett and Wood Pty Ltd (1940) 63 CLR 533 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 250 Pollard v R (1992) 176 CLR 177 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173, 185, 329, 331, 333 Pollitt v R (1992) 174 CLR 558 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 92, 94, 102, 128, 129 365, 368 Price v Bevan (1974) 8 SASR 81 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 248 Price v Torrington (1703) 1 Salk 285, 91 ER 252 . . . . . . . . . . . . . . . . . . . . . . . . . 117 Queen’s Case, The (1820) Br & B 284; 129 ER 976 . . . . . . . . . . . . . . . . . . . . . . . . 47 Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266. . . . . . . . . . . . . . . . . . . 170 R v Abadom [1983] 1 All ER 364 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151 R v Adams and Ross [1965] Qd R 255 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254 R v Alexander [1979] VR 615 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 R v Allen [1988] VR 736 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 R v Ames [1964–65] NSWR 1489. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63, 327 R v Andrews [1987] AC 281 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118–20 R v Anunga (1976) 11 ALR 412 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 331 R v Apostilides (1984) 154 CLR 563 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 R v Astill (Robert) (1992), unreported judgment, New South Wales Court of Criminal Appeal, 17 July 1992 327

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Table of Cases R v Astill (Stephen) (1992) 62 A Crim R 148 . . . . . . . . . . . . . . . . . . . . 116, 121, 126 R v Azar (1991) 56 A Crim R 414 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181 R v Aziz [1982] 2 NSWLR 322 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 292 R v Baker (1912) 7 Cr App R 252 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 261 R v Ball [1911] AC 47. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219, 220, 222 R v Baskerville [1916] 2 KB 658 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 358 R v Bedingfield (1879) 14 Cox CC 341 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118, 119 R v Beech (1978) 30 SASR 410 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 272 R v Bell ex p Lees (1980) 146 CLR 141 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 305, 306 R v Benz (1989) 168 CLR 110. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92, 104, 118, 121, 284 R v Blastland [1986] AC 41 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 R v Bodsworth [1968] 2 NSWR 132 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180 R v Bonthyon (1984) 38 SASR 45. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140, 146 R v Booth [1983] 1 VR 39 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 R v Boyes (1861) 1 B&S 311, 121 ER 730. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 310 R v Braham and Mason [1976] VR 547. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 304 R v Britzman [1983] 1 All ER 369 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 270 R v Brown [1977] Qd R 220 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 R v Browne (1987) 30 A Crim R 278 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 R v Buchanan [1966] VR 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181 R v Burchielli [1981] VR 611. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291 R v Butterwasser [1948] 1 KB 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 262 R v Byczko (1977) 16 SASR 506 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206, 209 R v CBR [1992] 1 Qd R 637 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 362 R v Christie [1914] AC 545 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163, 325 R v Clough (1992) 28 NSWLR 396 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 365 R v Clune [1982] VR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 288, 292 R v Cook (1918) 34 TLR 515 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178 R v Cook [1959] 2 QB 340 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268 R v Cox and Railton (1884) 14 QBD 153 . . . . . . . . . . . . . . . . . . . . . . . . . . . 305, 306 R v D’Arrigo (1991) 58 A Crim R 71 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 332 R v Damic [1982] 2 NSWLR 750 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 R v Darrington and McGauley [1980] VR 353 . . . . . . . . . . . . . . . . . . . . . . . 210–12 R v Davis [1975] 1 WLR 345. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 277 R v Dawson [1961] VR 773 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195 R v Daylight (1989) 41 A Crim R 354 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116, 121

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Principles of Evidence R v De Angelis (1979) 20 SASR 288. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209 R v Deering (1986) 43 SASR 252 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291 R v Derby Magistrates’ Court ex p B [1995] 4 All ER 526 . . . . . . . . . . . . . . . . . 306 R v Dixon (1992) 28 NSWLR 215. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180 R v Dolan (1992) 58 SASR 501 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 331 R v Doyle [1967] VR 698 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 292 R v Ellem (No 1) [1995] 2 Qd R 543 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201, 202 R v Elliott (1990), unreported, Supreme Court of New South Wales, 6 April 1990 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149, 150 R v Elliott (1996), unreported, Supreme Court of Victoria, 6 May 1996, 21 August 1996; noted (1997) 21 MULR 331 . . . . . . . . . 181, 333 R v Evans and Gardiner (No 2) [1976] VR 523 . . . . . . . . . . . . . . . . . . . . . . . . . . 227 R v Ferguson (1909) 2 Cr App R 250. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 261 R v Firman (1989) 52 SASR 391 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 R v Freeman [1980] VR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254 R v Fuller (1994) 74 A Crim R 415 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 261 R v Gaunt [1964] NSWR 864 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291 R v Gibb and McKenzie [1983] 2 VR 155 . . . . . . . . . . . . . . . . . . . . . . . . . . . 210, 211 R v Gun ex p Stephenson (1977) 17 SASR 165 . . . . . . . . . . . . . . . . . . . . . . 205, 209 R v Haidley and Alford [1984] VR 229. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 288 R v Hamilton (1993) 68 A Crim R 298 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263 R v Harmer (1985) 28 A Crim R 35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201, 202 R v Harris (No 3) [1990] VR 310 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 284 R v Harrison [1966] VR 72 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 R v Hatton (1976) 64 Cr App R 88. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 277 R v Heaney [1992] 2 VR 531. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169 R v Hendrie (1985) 37 SASR 581 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95, 100 R v Ireland (1970) 126 CLR 321 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63, 332 R v Jarrett (1994) 62 SASR 443 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 R v Johnson [1988] 1 WLR 1377. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 316 R v Jones and Sullivan [1978] 2 All ER 718 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127 R v Kearley [1992] 2 AC 228 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92, 97, 99, 102, 103 R v Kerim [1988] 1 Qd R 426 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 358 R v Khan (1990) 59 CCC (3d) 92 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 R v Kilby (1973) 129 CLR 460 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253, 254

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Table of Cases R v Lavallee (1990) 55 CCC (3d) 97. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145 R v Lawson [1996] 2 Qd R 196. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 367 R v Leatham (1861) 8 Cox CC 498. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 328 R v Lee (1950) 82 CLR 133 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177, 184 R v Lewis (1987) 29 A Crim R 267 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147 R v Li [1993] 2 VR 580 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177, 181 R v Lock (1997) 91 A Crim R 356. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 326 R v Lockyer (1996) 89 A Crim R 457 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198, 202 R v Lowery and King (No 3) [1972] VR 939 . . . . . . . . . . . . . . . . . . . . . . . . 210–212 R v Lucas [1992] 2 VR 109 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150 R v M (1993) 67 A Crim R 549 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203, 209 R v Maguire [1992] 1 QB 936 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 300 R v Manning; R v Henry (1968) 53 Cr App R 150 . . . . . . . . . . . . . . . . . . . . . . . 367 R v Matthews (1990) 58 SASR 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98, 101 R v McBride (1983) 34 SASR 433 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211, 212 R v McGarvey (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209 R v McKnoulty (1995) 80 A Crim R 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222 R v McLean and Funk ex p Attorney General [1991] 1 Qd R 231. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 327 R v Miladinovic (1993) 124 ALR 698 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 R v Morgan (1993) 67 A Crim R 526 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208, 209 R v Muscot (1713) 10 Mod 192; 88 ER 689 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 359 R v Nanette [1982] VR 81 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 358 R v Neilan [1992] 1 VR 57. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 R v Pachonick [1973] 2 NSWLR 86 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 R v Parker (1990) 19 NSWLR 177 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181 R v Penny (1997) 91 A Crim R 288 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 292 R v Perrier (No 2) [1991] 1 VR 717 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 261 R v Perry (1990) 49 A Crim R 243 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151 R v Pfennig (1992) 57 SASR 507 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187 R v Popescu (1989) 39 A Crim R 137. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 R v Quinn and Bloom [1962] 2 QB 245. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 R v Radford (1993) 66 A Crim R 210. . . . . . . . . . . . . . . . . . . . . . . 116, 121, 125, 126 R v Redpath (1962) 46 Cr App R 319 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 359 R v Richardson [1989] 1 Qd R 583. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209 R v Richardson; R v Longman [1969] 1 QB 299 . . . . . . . . . . . . . . . . . . . . . . . . . 250 R v Rowton (1865) Le & Ca 520; 169 ER 1497 . . . . . . . . . . . . . . . . . . . . . . . 260, 261

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Principles of Evidence R v Runjanjic and Kontinnen (1991) 56 SASR 114 . . . . . . . . . . . . . . . . . . . 142, 143 145, 147 R v Schlaefer (1992) 57 SASR 423 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 R v Seaboyer; R v Gayme (1991) 83 DLR (4th) 193 . . . . . . . . . . . . . . . . . . . . . . 203 R v Singh (1977) 15 SASR 591 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 R v Small (1994) 33 NSWLR 575 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 367 R v Smith (1915) 11 Cr App R 229 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225 R v Smith (1987) 7 NSWLR 444 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 284 R v Smith (1992) 94 DLR (4th) 590 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 R v Smith (No 2) (1995) 64 SASR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 248 R v Smith [1981] 1 NSWLR 193 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 353 R v Smith [1987] VR 907 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142 R v Sobh (1993) 65 A Crim R 466. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 300 R v Stalder [1981] 2 NSWLR 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263, 327 R v Starkey (1987) 26 A Crim R 113 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206, 209 R v Stephenson [1976] VR 376 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82 R v Straffen [1952] 2 QB 911 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 236 R v Sumner [1935] VLR 197 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 359 R v Swaffield; Pavic v R (1998) 151 ALR 98 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185 R v Sweet-Escott (1971) 55 Cr App R 316 . . . . . . . . . . . . . . . . . . . . . . . . . . 245, 246 R v Tran (1990) 50 A Crim R 233 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150 R v Triffett (1992) 1 Tas SR 293. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195 R v Tripodi [1961] VR 186 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 358 R v Truong (1996) 86 A Crim R 188. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183, 332 R v Turner (1832) 1 Mood 347; 168 ER 1298 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195 R v Turner [1944] KB 463 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 271 R v Turner [1975] 1 QB 834. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141–44 R v Ugolini (1989) 51 SASR 303. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205 R v Van Beelen (1972) 6 SASR 534. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 R v Varley [1982] 2 All ER 519 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 277 R v Viola [1982] 1 WLR 1138 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209 R v Von Einem (No 2) (1991) 52 A Crim R 402 . . . . . . . . . . . . . . . . . . . . . . . . . . 237 R v Vye [1993] 1 WLR 471 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 260 R v Ward (1993) 2 All ER 577 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 300 R v Warrell [1993] 1 VR 671 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206 R v Waye (1984) 14 A Crim R 391 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 359

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Table of Cases R v Webb and Hay (1992) 59 SASR 563 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210, 212 R v White (1989) 18 NSWLR 332. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206 R v Whitehead [1929] 1 KB 99 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 359 R v Wilson [1991] 2 NZLR 707. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 R v Winfield [1939] 4 All ER 164 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 262 R v Wright (1910) 5 Cr App Rep 131 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 270 R v Young [1995] QB 324 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Ratten v R [1972] AC 378 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98, 99, 118, 119 Reid v Kerr (1974) 9 SASR 367. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47, 48 Ridgeway v R (1995) 184 CLR 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 332, 333 Ridley v Whipp (1916) 22 CLR 381. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 358 Rodgers v Rodgers (1964) 114 CLR 608 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 308 Rush & Tomkins Ltd v Greater London Council [1989] AC 1280 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 308 S v R (1989) 168 CLR 266 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223, 238 Sankey v Whitlam (1978) 142 CLR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . 312, 314, 315 Scott v Numurkah Corp (1954) 91 CLR 300 . . . . . . . . . . . . . . . . . . . . . . . . . . 64–66 Selvey v DPP [1970] AC 304. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 270 Sheldon v Sun Alliance Ltd (1988) 50 SASR 236 . . . . . . . . . . . . . . . . . . . . 200, 201 Shepherd v R (1990) 170 CLR 573 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343 Sherrard v Jacob [1965] NI 151 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138 Singleton v John Fairfax & Sons Ltd [1982] 2 NSWLR 38. . . . . . . . . . . . . . . . . 352 Smith v R (1970) 121 CLR 572 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 Sparks v R [1964] AC 964 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116 Stirland v DPP [1944] AC 315 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 261, 272 Stohl Aviation v Electrum Pty Ltd (1984) 5 FCR 187 . . . . . . . . . . . . . . . . . . . . . 352 Sturla v Freccia (1880) 5 App Cas 623. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111 Subramaniam v Public Prosecutor [1956] 1 WLR 965. . . . . . . . . . . . . . . 90, 91, 97 Sussex Peerage Case (1844) 11 Cl & F 85; 8 ER 1034 . . . . . . . . . . . . . . . . . . . . . 123 Sutton v R (1984) 152 CLR 528 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226, 227, 229, 233, 235, 236

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Principles of Evidence Teper v R [1952] AC 480 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 Thompson v R (1989) 169 CLR 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226, 227, 233 Thompson v R [1918] AC 221 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219, 220, 222 Timbury v Coffee (1941) 66 CLR 277 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351 Toohey v Metropolitan Police Commissioner [1965] AC 595 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202, 250 TPC v TNT Management Pty Ltd (1984) 56 ALR 647 . . . . . . . . . . . . . . . . . . . . 157 Trade Practices Commission v Abbco Ice Works Pty Ltd (1994) 123 ALR 503 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 310 Trade Practices Commission v Port Adelaide Wool Co Pty Ltd (1995) 132 ALR 645 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303 Transport Publishing Co Ltd v Literature Board of Review (1956) 99 CLR 111 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143, 144 Tripodi v R (1961) 104 CLR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157 Unsted v Unsted (1947) 47 SR (NSW) 495 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 Unsworth v R [1986] Tas SR 173 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210, 211 Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 250 Van Beelen, Re (1974) 9 SASR 163 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117, 123 Van der Meer v R (1988) 82 ALR 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187 Vocisano v Vocisano (1974) 130 CLR 267 . . . . . . . . . . . . . . . . . . . . . . . . . . . 118, 119 Wackerow v R (1996) 90 A Crim R 297. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238 Walker v Walker (1937) 57 CLR 630 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Walton v R (1989) 166 CLR 283 . . . . . . . . . . . . . . . . . . . . . . . . 92, 100, 102, 111, 118 121, 128 Waterford v Commonwealth (1987) 163 CLR 54 . . . . . . . . . . . . . . . . . . . . 303, 305 Weal v Bottom (1966) 40 ALJR 436 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148 Webb and Hay v R (1994) 181 CLR 41 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 365 Weissensteiner v R (1993) 178 CLR 217 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35–37 Welsh v R (1996) 90 A Crim R 364. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94 Wilde v R (1988) 164 CLR 365 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Williams v R (1986) 161 CLR 278 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 331

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Table of Cases Wilson v R (1970) 44 ALJR 221 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80–82 Wong Kam-ming v R [1980] AC 247. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177 Woolmington v DPP [1935] AC 462 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 340 Woon v R (1964) 109 CLR 529 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162, 163 Wright v Doe d Tatham (1837) 7 Ad & El 313; 112 ER 488. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96, 97 Zaknic Pty Ltd v Svelte Corporation Pty Ltd (1995) 140 ALR 701 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198, 200, 201

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TABLE OF STATUTES Crimes Act 1900 (ACT) ................332 Crimes Act 1900 (NSW)............2, 332 s 402..................................................16 s 405B(2) ........................................254 s 405D(1)..........................................33 s 405(2)(b)........................................33 s 405(3) ............................................16 s 409B ............................................204 s 409B(3)(f) ....................................255 s 409B(5) ........................................255 s 424A ............................................167 s 424A(2)(a) ..................................172 s 424A(2)(b) ..................................174 s 424A(2)(c) ..................................174 s 424A(4) ......................................170, 171, 174 Crimes Act 1914 (Cth) ..............2, 332 s 3ZM ............................................295 s 3ZN ............................................295 s 3ZO..............................................297 s 3ZP ......................................295, 297 s 23B(1) ..........................................170 s 23V ..............................................167 s 23V(1)..........................................169 s 23V(1)(a) ....................................172 s 23V(1)(b) ............................171, 174 s 23V(2)..........................................175 s 23V(2)(c) ....................................175 s 23V(3)..........................................171 s 23V(5)..........................................175 Crimes Act 1958 (Vic)....................332 s 61..................................................367 s 61(1)(b)........................................254 s 372(3AA)–(3AC)........................229 s 398A ..........................................216, 218, 230 s 398(2) ..........................................231 s 398(3) ..........................................231 s 399(2) ............................................38 s 399(4) ..........................................308 s 399(5) ..........................................264 s 399(5)(a) ......................................266

s 399(5)(b)......................................268 s 399(5)(c) ......................................276 s 399(6) ..........................................273 s 400(2) ............................................38 s 400(3) ............................................38 s 417..................................................16 s 464A(3)........................................185 s 464C(1)........................................186 s 464H....................................167, 169 s 464H(1) ..............................170, 173 s 464H(1)(c) ..................................172 s 464H(1)(d) ..................................172 s 464H(1)(e) ..................................172 s 464H(2) ..............................170, 175 s 464H(3)(a) ..................................175 s 464H(3)(b) ..................................175 s 568..................................................16 Crimes (Criminal Trials) Act 1993 (Vic) s 4(c) ..............................................353 s 8....................................................300 s 11..........................................300, 353 s 13(1) ..............................................15 Crimes (Rape) Act 1991 ................208 Criminal Appeal Act 1912 (NSW) s 6......................................................16 Criminal Code 1899 (Qld) ............332 s 125................................................359 s 619..................................................16 s 632 ................................361–63, 367 s 632(3) ..........................................362 s 644................................................353 s 668E ..............................................16 Criminal Code 1913 (WA)............332 s 570A(1)........................................175 s 570D ....................................167, 169 s 570D(2)........................................174 s 570D(2)(b) ..................................174 s 570D(2)(c) ..................................175 s 570D(3)........................................170

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Principles of Evidence s 570D(4)........................................174 s 570D(4)(a) ..................................171 s 637..................................................16 s 689..................................................16 Criminal Code 1924 (Tas) s 96..................................................259 s 136................................................367 s 371..................................................16 s 371A ............................................254 s 402..................................................16 Criminal Code 1983 (NT) s 120................................................359 s 363..................................................16 s 379................................................353 s 410..................................................16 s 411..................................................16 Sched 4 ............................................16 Criminal Evidence Act 1898 (UK)................264–66, 268, 271, 273 276–78 Criminal Justice and Public Order Act 1994 (UK) ss 34–38..........................................161 Criminal Law Amendment Act 1894 (Qld) s 10..................................................180 Criminal Law Consolidation Act 1929 (SA) s 239(5) ..........................................359 Criminal Law Consolidation Act 1935 (SA) s 288b ..............................................16 s 353..................................................16 Criminal Law (Detention and Interrogation) Act 1995 (Tas) ..............................332 s 8....................................................167 s 8(1)(a)..................................170, 171 s 8(2) ..............................................174 s 8(2)(a) ..........................................172 s 8(2)(b) ..........................................174

s 8(2)(c) ..........................................174 s 8(2)(d)..........................................175 s 8(3) ..............................................174 Criminal Law (Sexual Offences) Act 1978 (Qld) s 4 ..........................................204, 256 Criminal Process (Identification and Search Procedure) Act 1976 (Tas) ..........332 Defamation Act 1974 (NSW) s 55(2) ............................................194 Evidence Act 1906 (WA) s 8(e) ..............................................264 s 8(e)(i) ..........................................266 s 8(e)(ii) ..........................................268 s 8(e)(iii) ........................................276 s 8(1) ........................................35, 264 s 8(1)(c) ............................................37 s 8(1)(d)..........................................308 s 9(1)(c) ............................................38 s 13..................................................311 s 18..................................................299 s 20 ..........................................47, 248 s 21 ............................................44, 47, 248, 250 s 23(1) ............................................249 s 25....................................................46 s 25(2) ............................................246 s 26....................................................46 s 32..................................................353 s 35..................................................359 ss 36A–36BC ................................204 s 36BC(2)(a) ..................................255 s 36BD............................................254 s 50..................................................367 s 72..................................................351 ss 73A–73V......................................54 ss 79B–79G ....................................126 s 79B ................................................53 s 82..................................................128

xxxvi

Table of Statutes s 99....................................................26 s 100A(1)..........................................28 s 100A(2)..........................................28 s 106B(2) ..........................................31 s 106C ..............................................31 s 106D ............................................361 s 106E ..............................................33 s 106F ..............................................33 s 106G ..............................................33 s 106I ................................................34 s 106J ................................................34 s 106N(1)(a) ....................................33 s 106R(3)(a) ....................................34 s 106R(3)(b) ....................................35 Evidence Act 1910 (Tas) ss 40B–40T ....................................126 s 41..................................................128 s 67..................................................351 ss 68A–68ZA ..................................54 s 76(4)(b)........................................193 s 81A ................................................53 s 8IL(2) ............................................94 s 81Q ..............................................127 s 85A ................................................38 s 85(4) ..............................................35 s 85(6) ..............................................38 s 85(7) ..............................................38 s 85(8) ..............................................37 s 85(10) ..................................264, 308 s 85(10)(a) ......................................266 s 85(10)(b)......................................268 s 85(10)(c) ......................................268 s 85(10)(d)......................................276 s 87..................................................311 s 94..................................................299 s 96..................................................299 s 97..................................................248 s 98 ............................................44, 47, 248, 250 s 99 ..........................................47, 250 s 100................................................249 s 102 ........................................46, 246 s 102A ............................................204

s 102A(2)(a) ..................................255 s 103..................................................46 s 109................................................353 s 122A ..............................................33 s 122B(1) ..........................................31 s 122C ..............................................32 s 122D(1)........................................361 s 122D(2)........................................361 s 122E ..............................................33 s 122I(1)(a) ......................................34 s 122I(1)(b) ......................................35 s 126..................................................26 Evidence Act 1929 (SA) s 6(3) ................................................26 s 9......................................................28 s 9(6) ................................................28 s 12(1) ..............................................31 s 12(2)(a) ........................................361 s 12(2)(a)(i) ......................................32 s 12(2)(a)(ii) ....................................32 s 12(2)(b) ..........................................31 s 12(3) ......................................28, 361 s 12(4) ..............................................33 s 12(10)(b)........................................34 s 12(10)(c) ........................................34 s 13(1) ..............................................33 s 13(2)(b) ..........................................33 s 13(10)(a) ........................................33 s 18(1) ..............................................35 s 18(1)II ............................................37 s 18(1)V..........................................308 s 18(1)VI ........................................264 s 18(1)VI(a)....................................266 s 18(1)VI(b)....................................268 s 18(1)VI(ba)..................................268 s 18(1)VI(c) ....................................276 s 18(2)(b)........................................271 s 18(3) ............................................271 s 21....................................................38 ss 22–25............................................46 s 23..................................................246 s 26..................................................249 s 27 ..........................................44, 248

xxxvii

Principles of Evidence s 28..................................................250 s 29..................................................250 s 34..................................................353 s 34a ......................................193, 194 s 34g ................................................53 s 34i ................................................204 s 34i(2)............................................256 s 34i(5)............................................367 s 45..................................................127 s 45a................................................126 s 45b ................................................53 s 45c..................................................54 s 53..................................................128 ss 59a–59c........................................57 s 64..................................................351 Evidence Act 1939 (NT) s 4......................................................53 s 9....................................................308 s 9C ................................................361 s 9(1) ................................................35 s 9(3) ................................................37 s 9(5) ................................................38 s 9(7) ..............................................264 s 9(7)(a) ..........................................266 s 9(7)(b) ..........................................268 s 9(7)(c) ..........................................276 s 12..................................................299 ss 13–16............................................46 s 15..................................................246 s 18 ..........................................44, 248 s 19 ..........................................47, 250 s 20 ..........................................47, 250 s 21A ................................................33 s 21A(1)(b) ......................................34 s 21A(1)(c) ......................................34 s 21A(2)(b) ......................................33 s 21A(2)(c) ......................................33 s 21A(2)(d) ......................................33 s 26A ..............................................193 s 35..................................................127 s 42B ................................................54

Evidence Act 1958 (Vic) s 3(1) ................................................53 s 13(4) ..............................................34 s 14....................................................34 s 23(1) ..............................................31 s 23(1)(b)....................................31, 32 s 23(2A)..........................................361 s 23(2B) ..........................................362 s 27..................................................299 s 28..................................................299 s 28(1) ............................................299 s 33..................................................249 s 34 ..........................................44, 248 s 35 ..........................................47, 250 s 36 ..........................................47, 250 s 37..................................................246 s 37A ..............................................204 s 37A(1)..........................................256 s 37B ..........................................33, 34 s 37C(1) ............................................33 s 37C(2)(a) ......................................34 s 37C(2)(b) ......................................34 s 37C(3)(b) ......................................33 s 37C(3)(d) ......................................33 s 37C(3)(e) ......................................33 s 37C(3)(f) ........................................33 s 39....................................................46 s 40....................................................46 s 42A ................................................40 s 42B ................................................40 ss 53–53T ........................................54 s 55..................................................126 s 55B ................................................57 s 90..................................................193 s 91..................................................194 s 102..................................................26 s 149A ............................................353 s 149AB..........................................353 s 399(1) ............................................35 s 399(3) ............................................37

xxxviii

Table of Statutes Evidence Act 1977 (Qld) s 5......................................................53 s 8(1) ................................................35 ss 8(2)–(7) ........................................38 s 9....................................................362 s 9(1) ................................................31 s 9(3) ................................................28 s 11..................................................299 s 15..................................................264 s 15(1) ............................................308 s 15(2)(a) ........................................266 s 15(2)(c) ........................................268 s 15(2)(d)........................................276 s 15(3) ............................................273 s 16..................................................249 s 17 ..........................................44, 248 s 17(1) ............................................248 s 18 ..........................................47, 250 s 19 ..........................................47, 250 s 20 ..........................................46, 247 s 21....................................................46 s 21A(1)(b)(i) ..................................34 s 21A(1)(b)(ii)..................................35 s 21A(1)(b)(iii) ................................35 s 21A(2)(a) ......................................33 s 21A(2)(b) ......................................33 s 21A(2)(d) ......................................33 s 21A(2)(e) ......................................34 s 75..................................................128 s 79..................................................193 s 95 ..........................................57, 126 s 101..................................................94 ss 104–29..........................................54 Evidence Act 1995 (Cth) ..................2 s 4........................................................2 s 5 ................................................3, 55, 337, 349 s 11....................................................40 s 12(a) ..............................................27 s 12(b) ..............................................28 s 13(1) ........................................27, 28 s 13(2) ..............................................28 s 13(3) ........................................27, 28

s 13(5) ..............................................27 s 15....................................................29 s 16(1) ..............................................27 s 17....................................................35 s 18....................................................38 s 19....................................................38 s 20(2) ..............................................37 s 23....................................................26 s 26....................................................40 s 28....................................................39 s 29(2) ..............................................39 s 29(4) ..............................................64 s 32....................................................43 s 32(1) ..............................................43 s 32(2) ..............................................43 s 32(3) ..............................................43 s 33(1) ..............................................43 s 33(2) ..............................................43 s 34....................................................44 s 35....................................................43 s 37(1) ..............................................41 s 38(1) ..............................................45 s 38(1)(b) ..........................................45 s 38(2) ..............................................45 s 38(3) ......................................45, 348 s 39 ..........................................49, 251 s 41....................................................46 s 42(1) ..............................................46 s 42(2) ..............................................46 s 42(3) ..............................................46 s 43..................................................251 s 43(1) ..............................................47 s 43(2) ..............................................47 s 44....................................................47 s 46....................................................48 s 47(1) ..............................................53 s 47(2) ..............................................54 s 48(1) ..............................................54 s 48(1)(a) ..........................................54 s 48(1)(b) ..........................................54 s 48(1)(c) ..........................................62 s 48(1)(d)....................................56, 57 s 48(1)(e) ..........................................55

xxxix

Principles of Evidence s 48(1)(f) ..........................................55 s 48(3) ..............................................54 s 48(4) ..............................................55 s 50....................................................57 s 51....................................................54 s 52....................................................59 s 53(2) ..............................................66 s 53(3) ..............................................66 s 53(4) ..............................................65 s 54....................................................65 s 54(5) ..............................................65 s 55(1) ..............................................76 s 55(2) ......................................77, 244 s 56....................................................75 s 56(1) ..............................................48 s 57(1) ................................84, 85, 344 s 58(1) ..............................................85 s 58(2) ..............................................85 s 59 ............................................92, 94 s 59(1) ......................................93, 105 s 59(2) ............................................120 s 60 ............................................90, 94, 105, 131, 254 s 61(1) ............................................113 s 61(2) ............................................113 s 61(3) ............................................113 s 62..................................................112 s 63..................................................131 s 63(1) ............................................114 s 63(2) ....................................114, 115 s 64 ........................................124, 131 s 64(2) ....................................114, 115 s 64(3) ....................................124, 131 s 64(4) ............................................124 s 65(2)(a) ................................117, 132 s 65(2)(b)........................119, 120, 132 s 65(2)(c) ................................121, 132 s 65(2)(d) ......................122, 123, 132 s 65(3) ....................................123, 132 s 65(4) ....................................124, 132 s 65(5) ....................................124, 132 s 65(6) ....................................124, 132 s 65(7) ....................................123, 132 s 65(8) ....................................116, 132

s 65(9) ....................................117, 132 s 66..................................................124 s 66(2)....................................124, 125, 132, 254, 290 s 66(3) ............................................125 s 66(4) ............................................124 s 67..................................114, 115, 131 s 67(3)(b) ........................................115 s 68..................................................115 s 68(3) ............................................115 s 68(4) ............................................115 s 69 ........................................126, 132 s 70 ........................................127, 132 s 71 ........................................128, 132 s 72 ..........................................95, 129, 130, 132 s 73 ........................................130, 133 s 74..................................................133 s 74(1) ............................................130 s 74(2) ............................................130 s 75 ........................................131, 133 s 76..................................................137 s 78..................................................138 s 79 ........................................140, 148 s 80(b) ............................................141 s 80(1) ............................................152 s 82 ........................................156, 182 s 83 ........................................156, 182 s 84 ........................................158, 165, 182, 183, 188 s 84(1) ....................................182, 341 s 84(2) ....................................182, 341 s 85 ................................183, 184, 188 s 85(1) ............................................182 s 85(2) ....................................183, 360 s 85(3) ............................................183 s 86..................................................183 s 87(1) ....................................157, 344 s 87(1)(b)........................................157 s 87(1)(c) ........................................157 s 88..................................................344 s 89..................................................161 s 89(1)(a) ........................................163 s 90..................................................184

xl

Table of Statutes s 91..................................................193 s 91(1) ....................................193, 195 s 92(1) ............................................194 s 92(2) ............................................193 s 93(c) ....................................194, 195 s 94(1) ............................................197 s 94(3) ............................................198 s 95 ........................................198, 228 s 97 ........................................197, 212, 213, 222, 238, 239 s 97(1) ....................................199, 222 s 97(1)(a)................................198, 239 s 97(1)(b) ......................198, 231, 236 s 97(2)(a) ........................................198 s 97(2)(b)........................................198 s 98 ........................................197, 212, 213, 238, 239 s 98(1) ....................................199, 224 s 98(1)(a)................................198, 239 s 98(1)(b) ......................198, 231, 235 s 98(2) ............................................199 s 98(3)(a) ........................................198 s 98(3)(b)........................................198 s 99..................................................198 s 101(2) ..................................232, 239 s 101(3) ..................................232, 239 s 101(4) ..................................232, 239 s 102 ......................................244, 249 s 103 ......................................244, 247 s 103(1) ..................................247, 257 s 103(2) ..................................247, 257 s 104 ......................................244, 264 s 104(2) ..................................265, 273 s 104(3) ..........................................265 s 104(4) ..........................................273 s 104(4)(a) ......................................267 s 104(4)(b)..............................268, 271 s 104(5) ..........................................271 s 104(6) ..................................276, 277 s 106 ......................................244, 247, 250, 251 s 108 ..............................244, 253, 254 s 108A............................245, 256, 257

s 108A(1)........................................256 s 108A(2)........................................257 s 108(1) ..........................................251 s 108(3) ..................................252, 290 s 109................................................259 s 110(1) ..........................................261 s 110(2)..................................262, 263, 267, 268 s 110(3)..................................262, 263, 267, 268 s 111 ................................................212 s 111(1) ..........................................275 s 111(2) ..........................................275 s 112................................................267 s 113................................................283 s 114........................................296, 297 s 114(1) ..................................294, 295 s 114(2) ..........................................294 s 114(3)(a) ......................................294 s 114(3)(b) ......................................294 s 114(3)(c) ......................................295 s 114(3)(d)......................................295 s 114(4) ..........................................295 s 114(5) ..........................................295 s 114(6) ..........................................295 s 115..........................................295–97 s 115(1) ..........................................295 s 115(2) ..........................................296 s 115(3) ..........................................296 s 115(4)(a) ......................................296 s 115(4)(b) ......................................296 s 115(5) ..........................................296 s 115(5)(a) ......................................296 s 115(5)(b) ......................................296 s 115(5)(c) ......................................296 s 115(6) ..........................................296 s 115(8) ..........................................296 s 115(10)(a) ....................................295 s 116(1) ..........................................293 s 117........................................296, 305 s 117(1) ..........................................304 s 118........................................302, 304 s 118(c) ..................................304, 305 s 119........................................302, 304

xli

Principles of Evidence s 119(b) ..................................304, 395 s 120................................................304 s 120(1)(b)......................................304 s 121(2) ..........................................306 s 122................................................307 s 123................................................306 s 125................................................306 s 125(2) ..........................................344 s 127................................................299 s 128 ..............................308, 310, 311 s 128(1) ..........................................309 s 128(2) ..................................310, 311 s 128(5) ..........................................311 s 128(7) ..........................................311 s 128(8) ..........................................308 s 128(10) ........................................311 s 129................................................299 s 130 ......................................312, 317 s 130(1) ..........................................312 s 130(2) ..........................................312 s 130(3) ..........................................312 s 130(4) ..................................313, 317 s 130(4)(a) ......................................314 s 130(4)(b)......................................314 s 130(4)(c) ..............................315, 316 s 130(4)(d)......................................315 s 130(4)(e) ..............................315, 316 s 130(4)(f) ......................................314 s 130(5) ..........................................318 s 131................................................307 s 131(3) ..........................................344 s 131(4) ..........................................344 s 131(5)(b)......................................308 s 132................................................301 s 134................................................301 s 135 ........................................83, 120, 140, 141, 150, 153, 325–27 s 136 ........................................325–27 s 137 ......................................325, 326 s 138(1) ..........................................329 s 138(2) ..........................................331 s 138(2)(a) ......................................331 s 138(2)(b)......................................331

s 138(3) ..................................332, 333 s 139................................................331 s 140(1) ..........................................342 s 140(2) ..........................................342 s 141(1) ..........................................343 s 141(2) ..........................................343 s 142(1) ..........................................344 s 142(2) ..........................................344 s 143................................................349 s 143(1) ..........................................348 s 143(2) ..........................................349 s 144(1)(a) ......................................349 s 144(1)(b)......................................350 s 144(2) ..................................349, 350 s 144(3) ..................................349, 350 s 144(4) ..................................347, 350 s 145................................................351 s 146 ....................................54, 57, 62 s 146(2) ..........................................344 s 147 ..........................................55, 57 s 149..................................................56 s 152..................................................56 s 164 ......................................361, 367 s 164(1) ..........................................356 s 164(2) ..................................357, 359 s 164(3) ..........................................357 s 165 ......................................357, 361, 367, 368 s 165(1) ..................................357, 363 s 165(1)(a) ......................................360 s 165(1)(b) ....................293, 360, 361 s 165(1)(c) ..............................361, 362 s 165(1)(d)......................................365 s 165(1)(e) ......................................365 s 165(1)(f) ......................................366 s 165(1)(g)......................................367 s 165(2) ..................................357, 360 s 165(3) ..........................................357 s 165(4) ..........................................357 s 165(5) ..........................................369 s 184................................................353 s 189(4) ............................................14 s 189(5) ............................................14 s 191................................................353

xlii

Table of Statutes s 191(1) ..........................................353 s 191(2) ..........................................353 s 191(3) ..........................................353 s 192................................................273 Evidence Act 1995 (NSW) ............2, 3 s 4........................................................2 s 5 ............................................55, 337 s 11....................................................40 s 12(a) ..............................................27 s 12(b) ..............................................28 s 13(1) ........................................27, 28 s 13(2) ..............................................28 s 13(3) ........................................27, 28 s 13(5) ..............................................27 s 15....................................................29 s 16(1) ..............................................27 s 17....................................................35 s 18....................................................38 s 19....................................................38 s 23....................................................26 s 26....................................................40 s 28....................................................39 s 29(2) ..............................................39 s 29(4) ..............................................64 s 30(2) ..............................................37 s 32....................................................43 s 32(1) ..............................................43 s 32(2) ..............................................43 s 32(3) ..............................................43 s 33(1) ..............................................43 s 33(2) ..............................................43 s 34....................................................44 s 35....................................................43 s 37(1) ..............................................41 s 38(1) ..............................................45 s 38(1)(b) ..........................................45 s 38(2) ..............................................45 s 38(3) ......................................45, 248 s 39 ..........................................49, 251 s 41....................................................46 s 42(1) ..............................................46 s 42(2) ..............................................46 s 42(3) ..............................................46

s 43..................................................251 s 43(1) ..............................................47 s 43(2) ..............................................47 s 44....................................................47 s 46....................................................48 s 47(1) ..............................................53 s 47(2) ..............................................54 s 48(1) ..............................................54 s 48(1)(a) ..........................................54 s 48(1)(b) ..........................................54 s 48(1)(c) ..........................................62 s 48(1)(d)....................................56, 57 s 48(1)(e) ..........................................55 s 48(1)(f) ..........................................55 s 48(3) ..............................................54 s 48(4) ..............................................55 s 50....................................................57 s 51....................................................54 s 52....................................................59 s 53(2) ..............................................66 s 53(3) ..............................................66 s 53(4) ..............................................65 s 54....................................................65 s 54(5) ..............................................65 s 55(1) ..............................................76 s 55(2) ......................................77, 244 s 56....................................................75 s 56(1) ..............................................48 s 57(1) ................................84, 85, 344 s 58(1) ..............................................85 s 58(2) ..............................................85 s 59 ............................................92, 94 s 59(1) ......................................93, 105 s 59(2) ............................................120 s 60 ............................................90, 94, 105, 131, 254 s 61(1) ............................................113 s 61(2) ............................................113 s 61(3) ............................................113 s 62..................................................112 s 63..................................................131 s 63(1) ............................................114 s 63(2) ....................................114, 115 s 64 ................................124, 131, 124

xliii

Principles of Evidence s 64(2) ....................................114, 115 s 64(3) ....................................124, 131 s 64(4) ............................................124 s 65(2)(a) ................................117, 132 s 65(2)(b)........................119, 120, 132 s 65(2)(c) ................................121, 132 s 65(2)(d) ......................122, 123, 132 s 65(3) ....................................123, 132 s 65(4) ....................................124, 132 s 65(5) ....................................124, 132 s 65(6) ....................................124, 132 s 65(7) ....................................123, 132 s 65(8) ....................................116, 132 s 65(9) ....................................117, 132 s 66..................................................124 s 66(2)....................................124, 125, 132, 254, 290 s 66(3) ............................................125 s 66(4) ............................................124 s 67..................................114, 115, 131 s 67(3)(b) ........................................115 s 68..................................................115 s 68(3) ............................................115 s 68(4) ............................................115 s 69 ........................................126, 132 s 70 ........................................127, 132 s 71 ........................................128, 132 s 72 ..........................95, 129, 130, 132 s 73 ........................................130, 133 s 74..................................................133 s 74(1) ............................................130 s 74(2) ............................................130 s 75 ........................................131, 133 s 76..................................................137 s 78..................................................138 s 79 ........................................140, 148 s 80(b) ............................................141 s 80(1) ............................................152 s 82 ........................................156, 182 s 83 ........................................156, 182 s 84 ........................................158, 165, 182, 183, 188 s 84(1) ....................................182, 341 s 84(2) ....................................182, 341

s 85 ................................183, 184, 188 s 85(1) ............................................182 s 85(2) ....................................183, 360 s 85(3) ............................................183 s 86..................................................183 s 87(1) ....................................157, 344 s 87(1)(b)........................................157 s 87(1)(c) ........................................157 s 88..................................................344 s 89..................................................161 s 89(1)(a) ........................................163 s 90..................................................184 s 91..................................................193 s 91(1) ....................................193, 195 s 92(1) ............................................194 s 92(2) ............................................193 s 93(c) ....................................194, 195 s 94(1) ............................................197 s 94(3) ............................................198 s 95 ........................................198, 228 s 97 ................................197, 212, 213, 222, 238, 239 s 97(1) ....................................199, 222 s 97(1)(a)................................198, 239 s 97(1)(b) ......................198, 231, 235 s 97(2)(a) ........................................198 s 97(2)(b)........................................198 s 98 ........................................197, 212, 213, 238, 239 s 98(1) ....................................199, 224 s 98(1)(a)................................198, 239 s 98(1)(b) ......................198, 231, 235 s 98(2) ............................................199 s 98(3)(a) ........................................198 s 98(3)(b)........................................198 s 99..................................................198 s 101(2) ..................................232, 239 s 101(3) ..................................232, 239 s 101(4) ..................................232, 239 s 102 ......................................244, 249 s 103 ......................................244, 247 s 103(1) ..................................247, 257 s 103(2) ..................................247, 257 s 104 ......................................244, 264

xliv

Table of Statutes s 104(2) ..................................265, 273 s 104(3) ..........................................265 s 104(4) ..................................267, 273 s 104(4)(a) ......................................267 s 104(4)(b)..............................268, 271 s 104(5) ..........................................271 s 104(6) ..................................276, 277 s 106 ......................................244, 247, 250, 251 s 108 ..............................244, 253, 254 s 108A............................245, 256, 257 s 108A(1)........................................256 s 108A(2)........................................257 s 108(1) ..........................................251 s 108(3) ..................................252, 290 s 109................................................259 s 110(1) ..........................................261 s 110(2)..................................262, 263, 267, 268 s 110(3)..................................262, 263, 267, 268 s 111 ................................................212 s 111(1) ..........................................275 s 111(2) ..........................................275 s 112................................................267 s 113................................................283 s 114........................................296, 297 s 114(1) ..................................294, 295 s 114(2) ..........................................294 s 114(3)(a) ......................................294 s 114(3)(b) ......................................294 s 114(3)(c) ......................................295 s 114(3)(d)......................................295 s 114(4) ..........................................295 s 114(5) ..........................................295 s 114(6) ..........................................295 s 115..........................................295–97 s 115(1) ..........................................295 s 115(2) ..........................................296 s 115(3) ..........................................296 s 115(4)(a) ......................................296 s 115(4)(b) ......................................296 s 115(5) ..........................................296 s 115(5)(a) ......................................296

s 115(5)(b) ......................................296 s 115(5)(c) ......................................296 s 115(6) ..........................................296 s 115(8) ..........................................296 s 115(10)(a) ....................................295 s 116(1) ..........................................293 s 117........................................296, 305 s 117(1) ..........................................304 s 118........................................302, 304 s 118(c) ..................................304, 305 s 119........................................302, 304 s 119(b) ..................................304, 305 s 120................................................304 s 120(1)(b)......................................304 s 121(2) ..........................................306 s 122................................................307 s 123................................................306 s 125................................................306 s 125(2) ..........................................344 ss 126A–126F ................................319 s 126B(1) ........................................319 s 126B(3) ........................................319 s 126B(4) ........................................320 s 127................................................299 s 128 ..............................308, 310, 311 s 128(1) ..........................................309 s 128(2) ..................................310, 311 s 128(5) ..........................................311 s 128(7) ..........................................311 s 128(8) ..........................................308 s 128(10) ........................................311 s 129................................................299 s 130 ......................................312, 317 s 130(1) ..........................................312 s 130(2) ..........................................312 s 130(3) ..........................................312 s 130(4) ..................................313, 317 s 130(4)(a) ......................................314 s 130(4)(b)......................................314 s 130(4)(c) ..............................315, 316 s 130(4)(d)......................................315 s 130(4)(e) ..............................315, 316 s 130(4)(f) ......................................314 s 130(5) ..........................................318

xlv

Principles of Evidence s 131................................................307 s 131(3) ..........................................344 s 131(4) ..........................................344 s 131(5)(b)......................................308 s 132................................................301 s 134................................................301 s 135 ........................................83, 120, 140, 141, 150, 153, 325–27 s 136 ........................................325–27 s 137 ......................................325, 326 s 138(1) ..........................................329 s 138(2) ..........................................331 s 138(2)(a) ......................................331 s 138(2)(b)......................................331 s 138(3) ..................................332, 333 s 139................................................331 s 140(1) ..........................................342 s 140(2) ..........................................342 s 141(1) ..........................................343 s 141(2) ..........................................343 s 142(1) ..........................................344 s 142(2) ..........................................344 s 143................................................349 s 143(1) ..........................................348 s 143(2) ..........................................349 s 144(1)(a) ......................................349 s 144(1)(b)......................................350 s 144(2) ..................................349, 350 s 144(3) ..................................349, 350 s 144(4) ..................................347, 350 s 145................................................351 s 146 ....................................54, 57, 62 s 146(2) ..........................................344 s 147 ..........................................55, 57 s 149..................................................56 s 152..................................................56 s 164 ......................................361, 367 s 164(1) ..........................................356 s 164(2) ..................................357, 359 s 164(3) ..........................................357 s 165 ......................................357, 361, 367, 368

s 165(1) ..................................357, 363 s 165(1)(a) ......................................360 s 165(1)(b) ....................293, 360, 361 s 165(1)(c) ..............................361, 362 s 165(1)(d)......................................365 s 165(1)(e) ......................................365 s 165(1)(f) ......................................366 s 165(1)(g)......................................367 s 165(2) ..................................357, 360 s 165(3) ..........................................357 s 165(4) ..........................................357 s 165(5) ..........................................369 s 184................................................353 s 189(4) ............................................14 s 189(5) ............................................14 s 191................................................353 s 191(1) ..........................................353 s 191(2) ..........................................353 s 191(3) ..........................................353 s 192................................................273 Evidence Amendment (Confidential Communications) Act 1997 (NSW) ..................................319 Evidence (Business Records) Interim Arrangement Act 1984 (NT)................................................126 Evidence (Closed-circuit Television) Act 1991 (ACT) s 4A(1)..............................................33 Evidence Ordinance 1971 (ACT) s 76G ..............................................204 s 76G(3)..........................................256 s 78..................................................194 Oaths Act 1939 (NT) s 25....................................................26 s 25A(1)(a) ......................................28 s 25A(1)(b) ......................................32

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Table of Statutes Oaths Act Amendment Act 1884 (Qld) s 2......................................................26

Police Administration Act 1979 (NT) ..............................332 s 142................................................167 s 142(1)(b)......................................172 s 142(2) ..........................................175 s 143................................................175 Police and Criminal Evidence Act 1984 (UK) ............328 Punishment of Incest Act 1908 ....219

Partnership Act 1891 (Qld) s 18..................................................157 Partnership Act 1891 (SA) s 15..................................................157 Partnership Act 1891 (Tas) s 20..................................................157 Partnership Act 1892 (NSW) s 15..................................................157 Partnership Act 1895 (WA) s 22..................................................157 Partnership Act 1958 (Vic) s 19..................................................157 Partnership Act 1963 (ACT) s 19..................................................157

Sexual Offences (Evidence and Procedure) Act 1983 (NT) s 4 ..........................................204, 256 s 4(5)(a) ..........................................367 Summary Offences Act 1953 (SA) ss 67–82..........................................332

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CHAPTER 1

INTRODUCTION

1.1

The law of evidence

1.1.1 Introduction The law of evidence regulates the means by which facts can be proved in litigation. It is usually described as an aspect of procedural or adjectival law in order to distinguish it from the substantive law, such as the law of contract or the criminal law. It is the substantive law which determines whether or not an alleged act, omission or course of conduct has given rise to some legal consequence such as creating a right to damages. But it is the law of evidence which determines how the parties can attempt to prove that the alleged act, omission or course of conduct did in fact occur. Its characterisation as procedural law should not therefore be allowed to obscure its fundamental importance. As Brennan J said in Pollitt v R (1992): The law of evidence, though adjectival, is the working tool which a trial judge must keep constantly at hand and the principles of the law of evidence are, so to speak, the ground on which the dynamics of a trial, especially a criminal trial, are played out.1

In the vast, vast majority of civil and criminal proceedings, the substantive law will be completely clear. This means that the major point of disagreement between prosecution or plaintiff on the one hand and defendant on the other, will not be about the legal consequences of an agreed set of facts; it will be about what the facts actually are. This is the province of the law of evidence. The law of evidence determines what evidence can and what evidence cannot be used to prove the facts in issue in the proceedings. The impact of its rules about the admissibility of evidence can often determine the outcome of a case. A party’s case may collapse if a key item of evidence is excluded; and success may be almost inevitable if a particularly cogent piece of evidence is ruled admissible.

1.1.2 Sources of the law of evidence Historically, the law of evidence was the creation of the courts. This means that the common law has traditionally been the primary source of the law of evidence. Over the last hundred or so years, however, the legislatures in all Australian jurisdictions have tinkered with the law of evidence in a variety of __________________________________________________________________________________________________________________________________________

1

Pollitt v R (1992) 174 CLR 558, 573. 1

Principles of Evidence ways, while maintaining its common law foundation. This means that the law of evidence in every Australian jurisdiction has comprised a combination of common law rules common to all jurisdictions, and statutory modification to those rules which vary from jurisdiction to jurisdiction. These statutory modifications are mainly found in the Evidence and Crimes Acts of each jurisdiction. Although the details of the statutory provisions vary enormously, their aims are often shared. This means that it is often more useful to discuss the various statutes by reference to these broader shared aims, than it is to focus on the minutiae of their varying details. For two jurisdictions – and there may soon be more – however, the above description is no longer accurate. This is because the Commonwealth and New South Wales Parliaments have recently enacted far more comprehensive evidence legislation in the form of the Evidence Act 1995 (Cth) and the Evidence Act 1995 (NSW). These Acts, largely based on the Australian Law Reform Commission’s Evidence reports (Interim Report, ALRC 26, 1985 and Final Report, ALRC 38, 1987), are substantially identical and are intended to form the basis for uniform evidence legislation throughout Australia. The Acts – referred to in this work as the uniform evidence legislation – bring about wide-ranging reforms to the law of evidence, simplifying and clarifying much of the laws complexity. While falling short of a complete codification of the law of evidence, the uniform evidence legislation is now the primary source for the law of evidence in these jurisdictions.

1.1.3 The various Australian jurisdictions In this work a basic and fundamental distinction is drawn between those jurisdictions in which the uniform evidence legislation applies and those in which it does not. Those in which it applies are often referred to as uniform evidence legislation jurisdictions. Those in which it does not are referred to either as common law jurisdictions or as non-uniform evidence legislation jurisdictions. Because of the differences between the uniform evidence legislation and the common law (with statutory modifications) it is absolutely crucial to know whether or not the uniform evidence legislation applies in the jurisdiction in which you find yourself. 1.1.3.1 Federal courts, New South Wales and the Australian Capital Territory The uniform evidence legislation applies in all Federal, ACT and New South Wales courts: see Evidence Act 1995 (Cth), s 4 and Evidence Act 1995 (NSW), s 4. In addition to the provisions of the uniform evidence legislation, however, there are also some evidentiary provisions in legislation such as the Crimes Acts 1914 (Cth) and Crimes Act 1900 (NSW). These provisions are referred to in the relevant chapters below.

2

Introduction 1.1.3.2 Victoria, Western Australia, Tasmania and the Northern Territory At the time of writing, Victoria, Western Australia, Tasmania and the Northern Territory have all indicated an intention either to adopt the uniform evidence legislation, or at least to consider its adoption. It is therefore likely that some time during the currency of this work, a new Evidence Act will be enacted in one or more of these four jurisdictions. If this happens in the jurisdiction in which you find yourself, a question will clearly arise as to how you should use this work. The first point to note is the obvious one: the provisions of the uniform evidence legislation will replace most of the existing evidence provisions in the jurisdiction in question. As a general rule, a reader should therefore assume that all jurisdiction-specific statutory provisions referred to in the text have been repealed and replaced by the equivalent provisions of the uniform evidence legislation. The exceptions to this rule arise from the fact that the uniform evidence legislation does not comprehensively cover all aspects of the law of evidence. It does not, for example, replace existing statutory provisions regulating the investigation of crime; nor does it contain anything equivalent to the rape shield provisions discussed in Chapters 12 and 14. Such provisions are therefore likely to be retained, notwithstanding the enactment of the uniform evidence legislation, as they have been in those jurisdictions in which the uniform evidence legislation already applies. This fact provides the basis for a simple rule of thumb which can be used to determine whether a particular statutory provision is likely to be one which has been replaced by the uniform evidence legislation or to be one which has been retained. If the New South Wales equivalent to the provision in the jurisdiction with which you are concerned is contained in the Evidence Act 1995 (NSW), then the provision has probably been replaced by the uniform evidence legislation. If, on the other hand, the New South Wales equivalent is not contained in the uniform evidence legislation, then the provision has probably been retained. If, however, the provision in the jurisdiction with which you are concerned is currently located in that jurisdiction’s existing Evidence Act, then it may have been moved to another piece of legislation. 1.1.3.3 Queensland and South Australia At the time of writing, Queensland and South Australia have indicated that they will not adopt the uniform evidence legislation. 1.1.3.4 All jurisdictions Certain of the provisions in the uniform evidence legislation apply in all Australian courts: see Evidence Act 1995 (Cth), s 5. Where a provision is given this extended application, this is mentioned in the discussion of the relevant area of law.

3

Principles of Evidence

1.1.4 Organisation of the law of evidence As well as reforming specific rules of evidence, the uniform evidence legislation also brings about a major reshaping of the law of evidence as a whole, departing in significant ways from previous methods of organising the subject. Under the legislation, the subject is divided into three main areas: Adducing Evidence, Admissibility of Evidence and Proof. The first is concerned with the means by which evidence is adduced; for example, through a witness or by means of documents. The second – and by far the largest area – contains all the rules affecting the admissibility of evidence. The third is concerned with matters of proof, including the standard of proof, matters that need not proven by evidence, and the warnings which the judge must give the jury about particular classes of evidence. This work largely follows the organisation of the subject contained in the uniform evidence legislation. This is because – in this author’s opinion at any rate – the method of organising the law of evidence contained in the uniform evidence legislation is vastly superior to the traditional methods of organising the subject, both conceptually and in terms of ease of understanding. Following this method of organising the subject should therefore improve the clarity of the law of evidence, even for students in those jurisdictions which have yet to adopt the legislation. For students in those jurisdictions which have adopted the legislation, the advantages are obviously even greater.

1.1.5 Civil and criminal proceedings Although there is only one law of evidence, specific rules of evidence often distinguish between civil and criminal proceedings, applying in one form of proceeding but not in the other. For example, at common law the discretion to exclude prejudicial evidence applies only in criminal proceedings; similarly, under the uniform evidence legislation some exceptions to the hearsay rule only apply in civil proceedings, some only apply in criminal proceedings, and some apply in both. As a general proposition there are more obstacles to proof in criminal proceedings, than there are in civil proceedings. This can be seen as being consistent with the view that civil proceedings are essentially a form of dispute resolution, the aims of which are most likely to be served by the (relatively) free admission of evidence. Criminal proceedings, on the other hand, are more than just a form of dispute resolution. In many ways, criminal proceedings are the public face of the criminal justice system, involving questions of high importance such as the liberty of the subject, and the balance between state and individual. Because the stakes are much higher in criminal proceedings, and because it is important that the criminal justice system commands public confidence, the rules of evidence applying in criminal proceedings tend to be far more complex.

4

Introduction

1.2

Some principles of proof

As with any area of law, the law of evidence can be seen as being based on several underlying principles. These principles are not used to determine the admissibility of evidence; that task is instead performed by the actual rules of evidence. But it is impossible to analyse and evaluate the rules of evidence properly without considering the aims which they are intended to achieve. A proper understanding of the general principles underlying the law of evidence is therefore essential for any arguments about what kinds of evidence should – in the interests of justice – be admitted in a trial, or about how the law of evidence should be reformed, or about where the boundaries of particular rules of evidence should be fixed. There are also certain areas of the law of evidence where the principles operate much closer to the surface. When the public policy discretion is being applied, for example, arguments about the desirability of admitting or excluding the evidence will necessarily be framed in terms of the principles discussed below. The various principles can be divided into two main categories: those which are aimed at promoting accurate fact-finding, and those which accept compromises about fact-finding in order to achieve other important aims.

1.2.1 Principles promoting accurate fact-finding As the law of evidence determines the means by which facts may be proven in civil and criminal litigation, one of its primary concerns is to promote accurate fact-finding. Several fact-finding related principles can be discerned in the law of evidence. Although all the principles have the same basic aim, however, they often pull in different directions. For example, the principles that unreliable evidence should be treated with caution, and that the risk of prejudice should be minimised, inevitably come into conflict with the first principle, that relevant information should be admitted. In deciding how to resolve this conflict in respect of a particular kind of evidence, the fundamental aim of promoting accurate fact-finding needs always to be kept in mind. 1.2.1.1 Relevant information should be admitted The aim of accurate fact-finding suggests that all relevant information ought to be considered by the court before it decides what the facts are. If the court fails to take into account relevant information then this will obviously increase the chances of it reaching an incorrect verdict. The aim of ensuring that all relevant information is considered by the court gives rise to the only principle of admission in the law of evidence: relevant evidence ought to be admitted. This principle is given expression in the form of the inclusionary aspect of the rule of relevance, the most important rule of the law of evidence. The inclusionary aspect of the relevance rule provides that all evidence that is

5

Principles of Evidence relevant to the issues to be decided in a proceeding is (prima facie) admissible in that proceeding. The words in parentheses indicate the fact that relevant evidence may nevertheless be excluded because it falls foul of one or more of the exclusionary rules. In practice, however, the principle that all relevant information should be admitted really only ensures the admission of information which has more than merely marginal relevance. Where information has only a slight relevance to the inquiry its exclusion is unlikely to increase the risk of the court making a wrong decision, and can be justified on the grounds that admitting absolutely all relevant information would make litigation too lengthy. 1.2.1.2 Irrelevant information should be excluded Just as the promotion of accurate fact-finding requires the admission of relevant information, so it requires that the court not take into consideration irrelevant information. This aim corresponds with the exclusionary aspect of the rule of relevance: evidence that is irrelevant to the issues to be decided in a proceeding is inadmissible in that proceeding. 1.2.1.3 Unreliable information should be treated with caution The promotion of accurate fact-finding also requires that unreliable evidence be treated with some caution. There are really two ways of treating unreliable evidence with caution. The first is to simply exclude the evidence. For example, hearsay evidence is excluded, it is usually said, because it is impossible to determine what weight ought to be given to the statements of a person who does not testify in court; and evidence of a coerced confession is excluded because a confession made as a result of coercion is so unreliable that it is unsafe to act upon. The idea that unreliable evidence should be excluded in order to promote accurate fact-finding is sometimes referred to as the ‘reliability principle’. The ‘reliability principle’ also has an inclusionary aspect, which is often used as a basis for arguments about the reform of the exclusionary rules: reliable evidence should be admitted, so if an exclusionary rule requires that reliable evidence be excluded then the exclusionary rule should be reformed. This aspect of the reliability principle can easily be used, for example, to argue for the creation of further exceptions to the hearsay rule. It is, however, unnecessary to identify the idea that reliable evidence should be admitted as an independent principle because the admission of reliable evidence is clearly consistent with the first principle, that relevant evidence ought to be admitted. A second method of dealing with unreliable evidence is to admit it, but to alert the tribunal of fact to the dangers of acting on it. For example, when proof of an accused person’s guilt depends on the jury accepting a witness’s identification of the accused as the perpetrator, the judge must warn the jury

6

Introduction about the dangers of acting on identification evidence, legal experience having shown this to be a class of evidence which is far less reliable than an ordinary juror would think. As a general proposition, one can argue that the second of these methods provides the best way of dealing with unreliable evidence. This is because it is difficult to see how depriving the court of relevant information can possibly promote accurate fact-finding. Admitting the evidence but alerting the jury to the dangers of acting on it, on the other hand, would seem to accord both with the principle that relevant information should be admitted and with the principle that unreliable information should be treated with caution. Exclusion may, however, be justified in either of two ways. The first is to argue that a jury is simply not to be trusted with unreliable information; better to exclude it altogether than to run the risk that the jury will give it a weight which it does not deserve. Although this belief undoubtedly played a role in the development of the law of evidence, the law’s traditional mistrust about the ability of juries to assess accurately the weight which should be given to particular types of evidence is obviously difficult to reconcile with the oftmade comments about the exceptional aptitude of the lay jury for the task of fact-finding. When evaluating the law of evidence it is, therefore, important to keep in mind the following question: is the exclusion of this evidence more likely to promote or impede accurate fact-finding? The second justification for exclusion may be that there is some aspect of the evidence which makes it particularly difficult for anyone, including a jury, to assess objectively. For example, if a jury learn that the accused confessed, it may be extremely difficult for them to put this out of their mind, even if they also hear evidence suggesting that the confession was procured by coercion and is therefore unreliable. In other words, the mere fact that a confession was made may make it difficult for the jury to weigh accurately the evidence against the accused. The true basis for excluding evidence which has this feature may not be that the evidence is unreliable, but that it is prejudicial. 1.2.1.4 The risk of prejudice should be minimised Also associated with the aim of promoting accurate fact-finding is the principle that evidence creating a risk of unfair prejudice should be excluded. The concept of prejudice was explained by the Australian Law Reform Commission in the following way: By risk of unfair prejudice is meant the danger that the fact-finder may use the evidence to make a decision on an improper, perhaps emotional, basis, ie on a basis logically unconnected with the issues in the case. Thus evidence that appeals to the fact-finder’s sympathies, arouses a sense of horror, provokes an instinct to punish, or triggers other mainsprings of human action may cause the fact-finder to base his decision on something other than the established propositions in the case. Similarly, on hearing the evidence the fact-finder may

7

Principles of Evidence be satisfied with a lower degree of probability than would otherwise be required.2

In other words, evidence is prejudicial when it creates the risk that the factfinding process may become emotional instead of rational and objective; when it may direct the fact-finder’s attention towards issues logically unconnected with the questions to be decided at trial; or when it may make the fact-finder antipathetic to one of the parties. Because prejudicial evidence has a tendency to bypass the intellect, a judicial warning about the dangers of the evidence is unlikely to be effective. Exclusion may therefore be the only method of ensuring that the evidence does not distort the fact-finding process. The classic example of such evidence is evidence about the accused’s prior criminal behaviour, or ‘tendency’ evidence. But the principle that the risk of prejudice should be minimised is also given concrete expression in the form of the discretion to exclude evidence more prejudicial than probative. Both the discretion and the rules governing the admissibility of tendency evidence recognise, however, that sometimes prejudicial evidence may have such a high legitimate probative value, that excluding it will actually make it less likely that the tribunal of fact will reach the correct verdict. When this happens, the first principle prevails, and the evidence is admitted. Traditionally, the principle that prejudicial evidence should be excluded has only been seen as applying to evidence led against the accused in a criminal trial, and has been explained on the basis that the exclusion of such evidence is necessary to uphold the accused’s right to a fair trial. Increasingly, however, this principle is seen as being of more general application. It arguably underlies, for example, the exclusion of evidence about the sexual history of the complainant in a rape case. This is because the admission of such evidence may transform the fact-finding process from an inquiry into the guilt or innocence of the accused into an inquiry about whether the complainant deserves the protection of the criminal law. 1.2.1.5 The risk of wrongful conviction should be minimised Often associated with the previous principle is the idea that the law of evidence, in so far as it applies to criminal proceedings, should be designed in such a way as to minimise the risk of wrongful conviction. In particular, setting such a high standard of proof as ‘proof beyond reasonable doubt’, is clearly designed to minimise the risk of wrongful conviction. In minimising the risk of wrongful conviction, however, the law also increases the risk of wrongful acquittal. This principle is not so much concerned with accuracy in fact-finding, therefore, as with avoiding a particular kind of mistake: wrongful convictions. The aim of the principle is actually to introduce a systemic bias into the fact-finding process, a bias favouring the accused. This is justified on __________________________________________________________________________________________________________________________________________

2

Evidence, ALRC 26, 1985, Vol 1 [644]. 8

Introduction the basis that some mistakes are worse than others: ‘better that 10 guilty men go free, than that one innocent man be convicted.’ This can be contrasted with the approach to civil proceedings, where the standard of proof is ‘on the balance of probabilities’, or more likely than not. This indicates that a mistaken verdict for the plaintiff is regarded as neither more nor less desirable than a mistaken verdict for the defendant. The fact that the defendant is entitled to a verdict in the rare situation where the court regards the probabilities as equally balanced is merely consistent with the fact that it is the plaintiff who is seeking the remedy of the court, and who therefore bears the burden of proof.

1.2.2 Principles compromising accurate fact-finding Some evidence scholars argue that the promotion of accurate fact-finding is the only acceptable justification for the exclusion of evidence. The basis for this argument is that judicial proceedings are, first and foremost, a factual inquiry. Their purpose, in other words, is to discover the truth. In criminal proceedings this means ensuring that the guilty are convicted and the innocent acquitted. Any rule designed to increase the chances of judicial proceedings serving this purpose is acceptable; any rule premised on the notion that judicial proceedings serve other purposes is not. This is an important argument, and one which must be constantly borne in mind when evaluating the law of evidence. Whatever its merits in the abstract, however, it is absolutely impossible to argue that the entire law of evidence can be explained on this basis. The rules of evidence do sometimes serve purposes which are extrinsic to the pursuit of truth. In particular, in criminal trials the law of evidence sometimes shows a concern for the means by which evidence was obtained. If a particular item of evidence was obtained by illegal, improper or unfair means, then one or more of the following principles may require its exclusion. 1.2.2.1 The disciplinary principle The ‘disciplinary principle’ is rooted in the idea that those who enforce the law should themselves obey it. The courts can give effect to this idea by excluding evidence obtained through unfair, improper or unlawful means. By excluding such evidence, the courts avoid being seen to condone the improper behaviour. Exclusion can also be seen as a form of discipline, punishing investigative officials for their failure to act in accordance with the proper standards, and deterring them from such conduct in the future. An argument against this principle is that the sanction which is applied is not really a ‘punishment’ of the investigative officials involved. Indeed, it is possible to argue that if the accused escapes conviction as a result of the exclusion of evidence excluded on disciplinary grounds, then it is society as a

9

Principles of Evidence whole which is ‘punished’. Against this view, it can be argued that the best punishment for an investigative official who obtains incriminating evidence through illegal, unfair or improper behaviour, may well be to deprive the official of the fruits of that behaviour, by excluding evidence which may otherwise have led to a conviction. Those who argue that the disciplinary principle should have no role to play in determining the admissibility of evidence argue, however, that the purpose of criminal proceedings is not to discipline the police but to determine the guilt of the accused. They also point out that if discipline is desired, there are other means of achieving this, for example, police disciplinary procedures. In response to this view it can be argued that such procedures are unlikely to be effective, and that it is in any case rather strange to discipline an investigative official for behaviour which may actually have resulted in a successful prosecution. 1.2.2.2 The protective principle The ‘protective principle’ is based on the idea that the courts should uphold the rights of those involved in the criminal justice system. If evidence is obtained through a breach of the accused’s rights, then the accused should be placed in the same position as they would have been in if their rights had not been breached. In other words, the accused should suffer no disadvantage from the breach of his or her rights. If the evidence would not have been obtained but for the breach of rights, then the only way of ensuring that the accused suffers no disadvantage from the breach of rights is to exclude the evidence. Allowing the accused to sue the police over the breach of rights in separate civil proceedings can not possibly place the accused in the position he or she would have been in but for the breach of rights; the most the accused can hope for is damages, not the avoidance of a conviction. 1.2.2.3 The legitimacy principle The legitimacy principle is based on the idea that evidence should not be admitted if doing so might undermine the integrity and legitimacy of the administration of justice. If illegally, improperly or unfairly obtained evidence is seen as tainted, then admitting the evidence may be seen as tainting the entire proceedings, and any conviction or verdict which they result in. Some would argue, however, that the true threat to the legitimacy of the criminal justice system is the exclusion of relevant evidence resulting in the acquittal of the guilty. The legitimacy principle can, thus, be used to argue both for the admission of evidence and for the exclusion of evidence, depending on one’s personal views about which of these is more likely to undermine the legitimacy of the administration of justice.

10

Introduction 1.2.2.4 Other public interests may outweigh the public interest in accurate fact-finding As already noted, accurate fact-finding generally requires the admission of all relevant information. In certain situations, however, the courts accept that this aim may be outweighed by some competing public interest which requires that the confidentiality or secrecy of a particular type or item of information be maintained. In particular, the entire law of privilege involves the withholding of relevant information from the tribunal of fact on the basis that this is required by one or other aspects of the public interest. For example, legal professional privilege is based on the idea that confidentiality in the lawyerclient relationship is so fundamental to the effective administration of justice that the public interest in the administration of justice requires that the confidential communications between lawyer and client be protected from disclosure in court. Public interest immunity aside, the existence and scope of a particular privilege reflects the law’s views about where the balance of public interest lies in respect of the class of evidence which the privilege protects. In other words, by declaring that particular information is privileged, the law has already decided that the public interest concerned outweighs the public interest in accurate fact-finding. Where public interest immunity is claimed, on the other hand, the law actually requires the courts to determine, on a caseby-case basis, which of the competing public interests to prefer. Arguments about which of two or more competing public interests should be preferred are also unavoidable when one is considering the desirability of a particular privilege, or when one is considering exactly how far the privilege should be allowed to extend.

1.3

Types of evidence

There are at least two different dimensions according to which evidence can be classified. The first dimension depends upon the source of the evidence; the second dimension depends upon the relationship that the evidence bears to the facts which are in issue at the trial.3 The first dimension corresponds to the division of evidence adopted in Part I: Adducing Evidence; and the second dimension turns on the way in which the evidence is relevant. The first dimension will be discussed now; discussion of the second dimension will be deferred until Chapter 5: Relevance. On the first dimension, we can divide the evidence into real (or tangible) evidence and testimonial evidence. Testimonial evidence is evidence from a witness about a fact they have perceived. With testimonial evidence, the tribunal of fact is unable to perceive the fact itself, and must rely on the __________________________________________________________________________________________________________________________________________

3

See Schum, D, Evidential Foundations of Probabilistic Reasoning, 1994, New York: John Wiley & Sons, pp 114–20. 11

Principles of Evidence assertion of the witness. With testimonial evidence, the tribunal of fact will always have to consider the degree to which the witness should be regarded as credible, because this will have a bearing on the question of whether the tribunal of fact should accept that the fact did indeed occur. The means by which the evidence of witnesses is adduced are discussed in Chapter 2: Witnesses. Real evidence is evidence which the tribunal of fact can examine itself and so decide for itself what the evidence reveals. Examples of real evidence include photographs of a crime scene or of the victims of a crime, and the weapon used in a crime. Depending on the use to which it is put, a document may also constitute real evidence. In this work, the means by which real evidence (other than real documentary evidence) can be adduced are discussed in Chapter 4: Real Evidence. It is conventional to add a third category of evidence on this dimension: documentary evidence. A document may be an object which the tribunal of fact can examine for itself (ie real evidence); but it may also contain assertions of fact and thus be testimonial in nature. Because special rules have been developed in relation to documentary evidence it is customary to recognise documents as a separate ‘type’ of evidence. The means by which documentary evidence is adduced are discussed in Chapter 3: Documents. A fourth category might be added for the sake of completeness. In some situations, a fact can be taken to have been established without there being any need for evidence at all. The parties may have made formal admissions about the fact; or the fact may be so well known that evidence of it is considered unnecessary. Such situations are discussed in Chapter 20: Matters of which Proof need not be Given.

1.4

The common law trial

1.4.1 The adversarial nature of proceedings The common law trial is adversarial in nature. This means that it is for the parties to initiate the proceedings, define the issues to be determined in them, and to gather and present the evidence which will be used to support the competing versions of the truth. The court decides the facts on the evidence presented in court; it is not permitted to engage in an evidence-gathering investigation of its own. The judge’s role, in theory at least, is to act as a neutral umpire, ruling on points of law but not interfering in the presentation of evidence by the parties. In practice, the judge may well ask some questions of the witness, but should not do so in a manner which interferes with the parties’ own examination of the witnesses. It is also consistent with the adversarial nature of proceedings that the party which initiates the proceedings, and thereby seeks a remedy from the court, bears the burden of satisfying the court of the existence of any 12

Introduction conditions which the law demands be met before the remedy be granted. In short, those who allege must prove. In a civil case, proceedings are initiated by the plaintiff, and it is the plaintiff which bears the onus of proving the facts the existence of which would give him or her a right to the civil remedy sought. In a criminal case, it is the prosecution which seeks the ‘remedy’ of the court, in the form of conviction and punishment, and it is for the prosecution to prove that the accused has acted in the proscribed manner. The allocation of the burden of proof is discussed in detail in Chapter 19: The Burden and Standard of Proof.

1.4.2 Judge and jury In broad terms, the role of the judge in a trial is to decide questions of law, and the role of the jury is to decide questions of fact. For this reason, the judge is sometimes referred to as the tribunal of law, and the jury as the tribunal of fact. In most civil litigation, however, as well as in the magistrates’ court in criminal proceedings, there is no jury. When this happens, both roles are performed by the one person: the judge or magistrate. When there is a jury the judge’s role does, of course, extend beyond merely deciding questions of law. As noted above, the judge may intervene to a limited extent in the presentation of the parties’ cases. The judge is also responsible for determining any questions of fact which go to the admissibility of an item of evidence. This aspect of the judge’s role is discussed under the next heading below. The judge may also choose to withdraw an issue from the jury’s consideration on the grounds that there is insufficient evidence to support a particular finding of fact. In a murder case where the defence alleges provocation, for example, the judge is only under a duty to leave the issue of provocation to the jury if there is some evidence on which a finding of provocation could be based. And if there is insufficient evidence to justify a finding of guilt, then the judge is entitled to direct the jury to enter a verdict of not guilty. Finally, the judge may influence the jury’s fact-finding by means of the summing up. The judge is, of course, required to direct the jury about the legal rules which they must apply to the facts in determining what verdict to bring in, and about the ways in which the law permits them to use certain types of evidence. But the judge may also direct the jury about the manner in which those rules should be applied to the facts, and may even express opinions about the evidence. The judge may thus convey to the jury his or her views about which witnesses were the most credible, and what facts ought therefore to be found; but in doing so, he or she is also obliged to warn the jury that they are not bound to act on his or her opinion.

13

Principles of Evidence

1.4.3 Questions of admissibility and the voir dire Determining the admissibility of evidence is a matter for the judge. In this role the judge is a kind of gatekeeper, determining what evidence will be submitted for the consideration of the jury. Often the admissibility of a piece of evidence turns on a question of fact. Examples of such facts include whether evidence was obtained illegally, whether a confession was voluntary, and whether a witness is competent to testify. Questions of fact relating to the admissibility of evidence are decided by the judge. The decision is made on what is called a voir dire, which is effectively a trial within the trial. On a voir dire, the parties can lead evidence in the usual way, by calling their own witnesses and cross-examining the witnesses of their opponent. It is generally for the party seeking the admission of the evidence to satisfy the court that it is admissible. Sometimes, however, it is for the party opposing the admission of evidence to persuade the judge to exercise a discretion to exclude the evidence. Whether it is the party seeking the admission of the evidence, or the party opposing it, the standard of proof on a voir dire is the civil standard of ‘on the balance of probabilities’. This standard of proof applies in voir dires in both civil and criminal proceedings. For example, in a criminal proceeding where the prosecution seeks to have evidence of a confession admitted, the prosecution would have to satisfy the court that the confession was voluntarily made; but it need only establish that the confession was voluntarily made ‘on the balance of probabilities’, not ‘beyond reasonable doubt’. Voir dires are usually conducted in the absence of the jury for the simple reason that there would be little point in ruling an item of evidence inadmissible if the jury has already heard about it during the voir dire. Under the uniform evidence legislation, juries are to be absent during a voir dire unless the judge orders otherwise: s 189(4). Section 189(5) provides that in deciding whether to make such an order the judge should consider, among other things, whether the evidence to be adduced during the voir dire might be prejudicial to the defendant. The judge is not permitted to make such an order, therefore, if the voir dire relates to the admissibility of an admission or confession, or illegally or improperly obtained evidence. No doubt the intention of these provisions is to ensure that the jury should not be permitted to hear any evidence against a defendant which it might be difficult to put out of their mind if ruled inadmissible. Confessions, tendency evidence or evidence excluded only because it was illegally obtained are all examples of such evidence. On the other hand, if the evidence would not be prejudicial, then there may no particular reason to exclude the jury. A jury might therefore be permitted to remain in court for the hearing of a voir dire into the competence of a child witness, or the expertise of a proposed expert. Although at common law there is some uncertainty about the situations where the judge may permit the jury to remain for a voir dire, in practice the position 14

Introduction is likely to be very similar to that applying under the uniform evidence legislation.

1.4.4 The order of proceedings 1.4.4.1 Criminal proceedings At the start of a criminal trial a plea must be taken. If the accused pleads guilty to all of the charges, then the prosecution need not prove its case, and the only issue is the sentence. If the accused pleads not guilty then a full trial is necessary. If the case is to be tried with a jury, then a jury must be empanelled and sworn. As the accused is presumed by law to be innocent, and as it for the prosecution to prove otherwise, it is the prosecution which goes first. The prosecution opens its case with an address to the jury outlining what they will attempt to prove. In Victoria, s 13(1) of the Crimes (Criminal Trials) Act 1993 gives the defence a right of reply to the prosecutor’s opening address in criminal trials. After opening addresses, the prosecution opens its case by calling its first witness. The choice of witness, and the order in which they give evidence, are both matters for counsel. The exclusion of witnesses from the courtroom until they have given evidence is a matter for the discretion of the judge. It is normal practice to exclude non-expert witnesses, as they might otherwise tailor their testimony to fit in with what the other witnesses have said. Expert witnesses, on the other hand, will often be allowed to remain in court as it may actually be helpful if they are able to comment on the evidence given by other experts. Each witness called by the prosecution is first examined by counsel for the prosecution: this is called the examination-in-chief, or direct examination. Defence counsel may then cross-examine the witness if they wish. If any new matters have arisen on cross-examination, the prosecutor may re-examine the witness. The witness is then discharged. When the prosecution has called all their witnesses their case is closed. The defence may then submit that there is ‘no case to answer ’: that is, that the evidence led by the prosecution is incapable of establishing beyond reasonable doubt the guilt of the accused. If this submission is rejected by the judge then the defence may open their case. Of course, the defence may choose to call no witnesses and simply argue that the prosecution have not discharged their burden of proof; for obvious reasons, this is unusual. Defence witnesses are examined in the same way as prosecution witnesses, although the roles of counsel are, of course, reversed. The accused may or may not be called as a witness: if the accused is called, special rules apply to his or her cross-examination. At the close of the defence case various submissions may be made to the judge about the manner in which the jury should be instructed. Counsel then make their closing addresses to the jury. At common law, the prosecution had right of last address if the defence case 15

Principles of Evidence extended beyond the testimony of the accused and of character witnesses; the order of closing address is now governed by statute in all Australian jurisdictions, with the defence generally being given the right of last address.4 Finally, the judge sums up the case for the jury, reviewing the evidence and directing them on the law. The jury then retires to consider its verdict. When the jury returns its verdict the court’s judgement is entered, usually in accordance with the verdict. The matter will then proceed to sentencing. 1.4.4.2 Civil proceedings The order of proceedings for civil cases is basically the same, but with some minor differences caused by the different nature of the two forms of proceeding. For example, no plea need be taken at the start of the trial, as the pleadings will already have defined the issues to be determined at the trial, and the points of difference between plaintiff and defendant. As it is the plaintiff which seeks the remedy of the court, the plaintiff must present its case first. As with criminal trials, the defence may make a submission of no case to answer at the close of the plaintiff’s case. If the submission is unsuccessful then the defence must then present its own case. After a verdict is entered there will usually be some argument about costs.

1.4.5 Appeals Appeal rights and procedures are, of course, properly part of the law of civil and criminal procedure; nevertheless, familiarity with the basic rights of appeal is essential to an understanding of many of the leading evidence cases.5 1.4.5.1 Criminal proceedings The appeal provisions are in common form in all Australian jurisdictions.6 In criminal cases, the prosecution has no right to appeal against an acquittal. The defence may, however, appeal against conviction on any of the following grounds: • that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence; • that the court before which the appellant was convicted made a wrong decision on any question of law; or • that there was a miscarriage of justice. __________________________________________________________________________________________________________________________________________

4

5 6

See Crimes Act 1900 (NSW), ss 402, 405(3) (applying also in the ACT); Crimes Act 1958 (Vic), s 417; Criminal Code 1899 (Qld), s 619; Criminal Code 1913 (WA), s 637; Criminal Law Consolidation Act 1935 (SA), s 288b; Criminal Code 1924 (Tas), s 371; and Criminal Code 1983 (NT), s 363 and Schedule 4. See Brown, D, ‘The Chidiac Case’ (1997) 22 Alternative Law Journal 237. See Criminal Appeal Act 1912 (NSW), s 6; Crimes Act 1958 (Vic), s 568; Criminal Code (Qld), s 668E; Criminal Code (WA), s 689; Criminal Law Consolidation Act 1935 (SA), s 353; Criminal Code (Tas), s 402; and Criminal Code (NT), ss 410 and 411. 16

Introduction If any of these grounds are made out, then the court must allow the appeal, by quashing the conviction and either directing a verdict of acquittal, or ordering a new trial, or (if certain conditions are met) substituting a verdict of guilty of another offence. This is subject to what is referred to as the ‘proviso’. The proviso allows the court to dismiss the appeal ‘if it considers that no substantial miscarriage of justice has actually occurred’. The first ground of appeal. Under the first ground of appeal it need not be shown that the jury did in fact behave unreasonably (although such behaviour might itself provide grounds for an appeal: see, for example, R v Young (1995) where the jury used a ouija board in order to consult with the deceased about the guilt of the accused). Rather, the reasonableness of the verdict is assessed by reference to the evidence presented at trial. When this ground is relied upon, the court often refers to the verdict as being ‘unsafe or unsatisfactory’. The question the court should ask itself is not whether there is, as a matter of law, evidence to support the verdict. But the exact question which should be asked is a matter which has split the High Court several times: see, for example, Chamberlain v R (No 2) (1984). In M v R (1994), a majority of the High Court comprising Mason CJ, Deane, Dawson and Toohey JJ, said that ‘the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’. 7 The test of openness is one of extreme deference to the jury, suggesting that a verdict will not necessarily be overturned even if the court itself has doubts about the appellant’s guilt. However, the majority in M v R added that ‘in most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced’: It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice has occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and set aside a verdict based upon that evidence.8

In other words, the actual test is whether the court itself experiences a doubt, except in those (possibly rare) cases where the court accepts the possibility __________________________________________________________________________________________________________________________________________

7 8

M v R (1994) 181 CLR 487, 493. Ibid, 494. 17

Principles of Evidence that any such doubts might have been resolved by actually seeing and hearing the witnesses. The second ground of appeal. The second ground of appeal is the most technical: it is not concerned with the merits of the verdict so much as the means by which it was reached. ‘Wrong decisions’ by the judge on a question of law include admitting inadmissible evidence; excluding admissible evidence; directing the jury in a manner inconsistent with the law, either by directing them incorrectly, or by failing to give a direction required by the law; and incorrectly exercising a discretion to admit or exclude evidence. Although the proviso applies to all three grounds of appeal, it is obviously of greatest relevance to the second ground. It is difficult to see, for example, how a court could find that a verdict could not be supported having regard to the evidence but that nevertheless no substantial miscarriage of justice had occurred. The proviso relieves the appellate court of the need to allow an appeal where the error of law was technical or trivial, and would have had no real bearing on the conduct or outcome of the trial. The court can only apply the proviso, however, if it is satisfied that the accused has not – because of the error of law – lost a chance of acquittal which was otherwise open to him or her. The court can only be so satisfied if it is convinced that conviction would have been inevitable even if the trial judge had not made the error. The fact that the proviso overrides the second ground of appeal suggests that ultimately substantive justice must prevail over procedural, because a procedural failing which makes no difference to the outcome of a trial can be disregarded. This view is not, however, entirely accurate. If the procedural irregularities are so fundamental that the trial can no longer be described as fair, then it is entirely irrelevant that the irregularities may have made no difference to the outcome or that the appellate court might consider the evidence of guilt to be overwhelming. The proviso can not be applied, therefore, if the procedural irregularity is: ... such a departure from the essential requirements of the law that it goes to the root of the proceedings. If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury’s verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice.9

The third ground of appeal. The third ground of appeal is a residual ground. According to the High Court in Davies and Cody v R (1937), this residual ground not only covers cases ‘where there is affirmative reason to suppose that the appellant is in fact innocent’, but also cases where: ... it appears unsafe or unjust to allow the conviction to stand because some failure has occurred in observing the conditions which, in the court’s view, are essential to a satisfactory trial, or because there is some feature of the case __________________________________________________________________________________________________________________________________________

9

Wilde v R (1988) 164 CLR 365, 373 (Brennan, Dawson and Toohey JJ). 18

Introduction raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled.10

These ‘conditions’ include the giving of a judicial warning about the dangers of certain classes of evidence: see Chapter 21: Corroboration and Judicial Warnings. In respect of some classes of evidence the giving of such a warning is required by law, so that failure to give the warning constitutes an error of law. In respect of other classes of evidence, however, the warning is only required as a matter of practice. In such cases failure to give the warning is not an automatic ground of appeal, and the appellant must in addition demonstrate that failure to give the warning caused a miscarriage of justice. 1.4.5.2 Civil proceedings In civil cases tried with a jury, the losing party may appeal against the verdict and seek an order for a new trial. There are three main grounds of appeal: • that an issue should not have been left to the jury because there was no or insufficient evidence to support it; • that the verdict was against the weight of the evidence; and • that there has been an error of law, in that evidence was either wrongly admitted or wrongly excluded. Where the case was tried by judge alone, the appeal acts as a rehearing so that the appeal court usually enters judgment, rather than ordering a new trial.

__________________________________________________________________________________________________________________________________________

10 Davies and Cody v R (1937) 57 CLR 170, 180. 19

PART I ADDUCING EVIDENCE

OVERVIEW OF PART I This part deals with the rules which govern the means by which evidence is adduced. It is not concerned with the admissibility of evidence or the use which may be made of it – that is the province of Part II. This part is concerned only with the mechanics of proof. It comprises three chapters, corresponding to the three different sources of evidence discussed in the introductory chapter: the evidence of witnesses, documentary evidence, and real evidence. These three chapters and the division of topics between them roughly correspond to Chapter 2 – Adducing Evidence – of the uniform evidence legislation, Parts 2.1, 2.2 and 2.3 of which are headed, respectively, Witnesses, Documents and Other Evidence.

23

CHAPTER 2

WITNESSES

2.1

Introduction

2.1.1 Overview This chapter discusses the means by which evidence is adduced from witnesses. It begins by discussing the common law’s preference for oral testimony, before turning to the twin questions of competence and compellability, which between them determine whether or not a particular person will be available to testify as a witness. It also considers the evidential significance of a failure to call a person as a witness. The chapter then discusses several different classes of witness, each of which is special in the sense that special rules apply to the class which do not apply to witnesses in general. Finally, the chapter discusses the means by which witnesses are examined, setting out the rules which apply to examination in chief, crossexamination and re-examination.

2.1.2 The common law’s preference for oral testimony Fact-finding in a common law trial is overwhelmingly based on the oral testimony of witnesses in court. This preference for oral testimony – which is not shared by civil law jurisdictions – is probably based upon some or all of the following (questionable) beliefs: • a person is more likely to tell the truth if they testify on oath, and subject to the threat of prosecution for perjury proceedings; • any falsehoods or inaccuracies in their account are most likely to be exposed if the person is subjected to cross-examination; and • the tribunal of fact will be better placed to decide whether or not the person is telling the truth if the person is in court so that their demeanour can be assessed. In Butera v DPP (1987), for example, the common law’s preference for oral as opposed to documentary evidence was justified in the following way: A witness who gives evidence orally demonstrates, for good or ill, more about his or her credibility than a witness whose evidence is given in documentary form. Oral evidence is public; written evidence may not be. Oral evidence gives to the trial the atmosphere which, though intangible, is often critical to the jury’s estimate of the witness. By generally restricting the jury to consideration of testimonial evidence in its oral form, it is thought that the jury’s discussion of the case in the jury room will be more open, the exchange

25

Principles of Evidence of views among jurors will be easier, and the legitimate merging of opinions will more easily occur than if the evidence were given in writing or the jurors were each armed with a written transcript of the evidence.1

2.2

The competence and compellability of witnesses

The availability of a person as a witness depends on the twin questions of competence and compellability. A person is competent as a witness if they will be allowed to testify; a competent witness is also compellable if they can be placed under threat of punishment for failure to testify. Issues of competence and compellability most commonly arise in relation to the special classes of witness dealt with in the next section of the chapter. This section and the next should therefore be read together. It is also important to note that competence and compellability are questions relating to the witness rather than to the evidence they give. A competent and compellable witness might, thus, be exempted from answering particular questions on grounds of privilege: see Chapter 17: Privilege and Immunity.

2.2.1 Sworn evidence Sworn evidence is evidence given on oath or affirmation. Sworn evidence may, as a general rule, only be given by persons who understand the obligations assumed by the taking of an oath or the making of an affirmation. An oath is a solemn undertaking to tell the truth which makes reference to the witness’s religious beliefs; an affirmation is an equally solemn undertaking couched in secular terms. In several jurisdictions a witness has a right to decide whether to take an oath or to make an affirmation; 2 in other jurisdictions the witness has to take an oath unless, for example, they refuse to do so on religious grounds, or it is not reasonably practicable to administer an oath in a manner appropriate to their religious belief.3 2.2.1.1 Common law jurisdictions The common law traditionally took a very restrictive approach to the question of competence, disqualifying numerous classes of potential witnesses including the parties, those who had been convicted of an offence, and those who had an interest in the proceeding. These restrictions have largely been swept away by statute and now most people are competent to give sworn evidence (the details of the provisions which made previously incompetent witnesses competent will not be discussed). In common law jurisdictions one can, therefore, state as a general rule that questions of competence will only __________________________________________________________________________________________________________________________________________

1 2 3

Butera v DPP (1987) 164 CLR 180, 189 (Mason CJ, Brennan and Deane JJ). See the uniform evidence legislation, s 23; Evidence Act 1906 (WA), s 99; Evidence Act 1929 (SA), s 6(3); Evidence Act 1910 (Tas), s 126; and Oaths Act 1939 (NT), s 25. See Evidence Act 1958 (Vic), s 102; and Oaths Act Amendment Act 1884 (Qld), s 2. 26

Witnesses arise if a person falls into one of the special classes of witness discussed below; if they do not fall into such a class then their competence will not be in issue. 2.2.1.2 The uniform evidence legislation The position under the uniform evidence legislation is slightly different, because there are no special classes of witness: the same competence tests apply to all witnesses. The starting point under the uniform evidence legislation is also, however, that every person is competent to give evidence. Section 12(a) of the uniform evidence legislation thus provides that ‘Except as otherwise provided by this Act’, ‘every person is competent to give evidence’; moreover, s 13(5) creates a presumption of competence which is only displaced ‘if the contrary is proved’. Section 13(1) then provides that a person will not be permitted to give sworn evidence if he or she is ‘incapable of understanding that, in giving evidence, he or she is under an obligation to give truthful evidence’. As we shall see below, this is essentially the same test as that which is applied to children and persons with impaired mental functioning in jurisdictions which take a categories-based approach to competence. Even though the uniform evidence legislation avoids such an approach, in practice it is still likely to be in relation to such classes of witness that questions of competence arise. The only class of witness recognised as being incompetent as a class, are the judge and jurors in the proceeding; they are not competent to give evidence in that proceeding (although jurors may give evidence about the conduct of the proceeding itself): s 16(1). An additional competence test is imposed by s 13(3) of the uniform evidence legislation, which provides that a person will not be permitted to give evidence about a particular fact if he or she ‘is incapable of giving a rational reply to a question about’ the fact. This provision allows a court to recognise a witness as competent to give evidence about some facts but not about others; the Australian Law Reform Commission gave as an example of this the possibility that ‘a young child could be permitted to answer simple factual questions but be ruled to be not competent to answer abstract or inferential questions’.4 Obviously, if a witness is incapable of giving rational replies to any questions, then they will not be competent to testify at all. Under the uniform evidence legislation there is thus a two-fold test of competence: first, the witness must have an understanding of the obligation to give truthful evidence; secondly, the witness must be capable of giving rational replies to questions about the facts of which they are to give evidence. A witness who fails the first test may still be permitted to give unsworn evidence; a witness who fails the second might have their evidence rejected altogether, either in whole or in part. __________________________________________________________________________________________________________________________________________

4

Evidence, ALRC 26, 1985, Vol 1 [522]. 27

Principles of Evidence

2.2.2 Unsworn evidence Unsworn evidence is evidence given by a witness who has neither taken an oath nor made an affirmation to tell the truth. In procedural terms, a witness giving unsworn evidence is treated in the same way as a witness giving sworn evidence: they may be cross-examined, and are subject to prosecution for perjury for giving false testimony. The fact that unsworn evidence is not given on oath may, however, mean that the tribunal of fact gives the evidence less weight than it does sworn evidence.5 In Victoria, Queensland and Tasmania, unsworn evidence may only be given if the witness falls into one of the special classes of witness discussed below. Under the uniform evidence legislation, and in Western Australia, South Australia and the Northern Territory, on the other hand, the rules which allow a witness to give unsworn evidence are of general application. The tests to be applied are, however, very similar to those which are applied in jurisdictions where only certain classes of witness such as children are permitted to give unsworn evidence. Section 13(2) of the uniform evidence legislation thus provides that a person who is incompetent to give sworn evidence by virtue of s 13(1) will be permitted to give unsworn evidence if three conditions are met: • first, ‘the court is satisfied that the person understands the difference between the truth and a lie’; and • secondly, ‘the court tells the person that it is important to tell the truth’; and • thirdly, ‘the person indicates, by responding appropriately when asked, that he or she will not lie in the proceeding’. The ‘rational reply’ test imposed by s 13(3) and discussed above also applies to unsworn evidence. The test in s 13(2) of the uniform evidence legislation is similar to that contained in s 100A(1) of the Evidence Act 1906 (WA) and s 9 of the Evidence Act 1929 (SA). These provisions allow a person who does not understand the nature of the obligation imposed by an oath to give evidence ‘without an oath and without formality’, provided that the trial judge explains to the person that he or she is required to be truthful. Similarly, under s 25A(1)(a) of the Oaths Act 1939 (NT), a person will be permitted to give evidence without taking an oath if they understand that they will be liable to punishment if their evidence is false.

2.2.3 Compellability As a general rule, competent witnesses are also compellable. Section 12(b) of the uniform evidence legislation thus provides that ‘Except as otherwise __________________________________________________________________________________________________________________________________________

5

See Evidence Act 1906 (WA), s 100A(2); and Evidence Act 1929 (SA), ss 9(6) and 12(3); but cf Evidence Act 1977 (Qld), s 9(3). 28

Witnesses provided by this Act’, ‘a person who is competent to give evidence about a fact is compellable to give that evidence’. The position is essentially the same in non-uniform evidence legislation jurisdictions. The accused is the most important example of a witness who is competent but not compellable; the prosecution cannot, thus, compel the accused to testify at his or her trial. This can be contrasted with the situation in civil proceedings, where the parties can compel their opponents to testify. There are, however, several exceptions to the general rule. Under s 15 of the uniform evidence legislation, for example, certain Heads of State and Members of Parliament may be competent but not compellable, as may witnesses suffering from a relevant disability: see below under the heading ‘Physically or mentally disabled witnesses’.

2.2.4 Failure to call a witness If a party fails to call a particular person as a witness this may, in certain circumstances, lead to an inference that the reason why the person was not called to testify is that their testimony would not have assisted the party’s case. This is sometimes known as the rule in Jones v Dunkel (1959). The uniform evidence legislation is silent on the topic, a silence which has been taken to preserve the common law rules: see Australian Securities Commission v AS Nominees Ltd (1995). Such an inference can obviously only be drawn if the witness was one who would ordinarily have been expected to be called, and to have been called by one party rather than the other. Because of this, the inference can only be drawn if it seems likely that the witness ‘would have had a close knowledge of the facts’ so as to be able to ‘elucidate’ the matter.6 It can also only be drawn if the witness: ... might be regarded as in the camp of one party, so as to make it unrealistic for the other party to call him, or where the witness’s knowledge may be regarded as the knowledge of one party rather than the other, or where his absence should be regarded as adverse to the case of one party rather than the other. It has been observed that the higher the missing witness stands in the confidence of one party, the more reason there will be for thinking that his knowledge is available to that party rather than to his adversary. If the witness is equally available to both parties, for example, a police officer, the condition, generally speaking, stands unsatisfied.7

The rule in Jones v Dunkel also only applies when the witness would have been available to testify; when the party would have known how the witness would have been likely to have testified; and when there is no other reasonable explanation for the failure to call the witness. These conditions are __________________________________________________________________________________________________________________________________________

6 7

Payne v Parker [1976] 1 NSWLR 191, 202 (Glass JA). Ibid, 201–02 (Glass JA). 29

Principles of Evidence simply designed to ensure that the inference is only drawn when the correct explanation for the failure to call the witness is indeed the fact that the witness’s evidence would not have been helpful to the party’s case. Other possible explanations for failure to call a witness include the possibility that the witness was unco-operative, or biased against the party; that the party had no idea how the witness would have testified; or that the effect of the evidence of the witness would merely have been cumulative. For these reasons, the most obvious category of witness which will satisfy all these conditions are the parties themselves, or such of their senior employees as were closely involved in the events in question: see Dilosa v Latec Finance Pty Ltd (1966). The inference that can be drawn is also a fairly limited one: it may not be inferred that the witness’s evidence would actually have damaged the party’s case, but only that it would not have assisted it. For this reason, the primary use of the inference is in the evaluation of the testimony of other witnesses about the matters of which the witness who was not called could have testified. In short, it makes it easier to accept the version of events put forward by the witnesses called by the party’s opponent. Although the rule in Jones v Dunkel applies in both civil and criminal proceedings, special rules apply when the person who does not testify is the accused; these are discussed below. Moreover, in criminal cases courts may be more reluctant to suggest that an adverse inference should be drawn against the accused from failure to call a witness, given that the burden of proof in criminal proceedings rests on the prosecution: see, for example, R v Booth (1983) and R v Browne (1987).

2.3

Special classes of witness

This section examines the special rules which apply to particular classes of witness. These include rules about competence, compellability, alternative methods of testifying, and – in the case of the accused – the inferences which can be drawn from failure to testify. Although most of the uniform evidence legislation’s competence rules are – as discussed above – of general application, it is still the case that questions of competence under the uniform evidence legislation will most commonly arise in relation to the first three special classes of witness discussed below. If a witness does not fall into one of the classes below it can generally be assumed – both at common law and under the uniform evidence legislation – that the witness will be competent and compellable.

2.3.1 Children This section discusses two aspects of the testimony of children: first, their competence to give either sworn or unsworn evidence; and secondly, the alternative arrangements which may be made to accommodate the testimony

30

Witnesses of children. The question of whether some sort of judicial warning will be required in respect of the evidence of a child witness is discussed in Chapter 21: Corroboration and Judicial Warnings. 2.3.1.1 Competence Under the general competence tests which apply under the uniform evidence legislation and which were discussed above, a child will only be permitted to give sworn evidence if he or she is capable ‘of understanding that, in giving evidence, he or she is under an obligation to give truthful evidence’. Where special rules apply – as they do in all non-uniform evidence legislation jurisdictions – there is usually a cut-off age above which children are subjected to the same competence rules as adults. In Western Australia the special rules apply if the child is under the age of 12; in South Australia they apply when the child is 12 or under; and in Victoria, Tasmania and the Northern Territory they apply when the child is under the age of 14. Only in Queensland is the word ‘child’ left undefined. In Western Australia and Tasmania the test applied to children is very similar to that applied generally under the uniform evidence legislation: a child will only be permitted to give sworn evidence if he or she understands that in testifying, he or she is under ‘an obligation to tell the truth that is over and above the ordinary duty to tell the truth’.8 In Victoria, Queensland and South Australia, on the other hand, the requirement is that the child must understand the nature of an oath before he or she will be permitted to give sworn evidence.9 The disadvantage with this latter test is that it has been held to require a belief in divine punishment for lying on oath, although there is also more recent authority to the effect that a child understands the nature of the oath if they have an understanding of their obligation to tell the truth.10 If a child fails the test for giving sworn evidence, he or she may nevertheless be permitted to give unsworn evidence. Each jurisdiction imposes a selection of the following requirements: • that the child understands or acknowledges that testifying in court places them under a duty to tell the truth;11 • that the judge considers the child to be sufficiently intelligent to be able to testify reliably;12

__________________________________________________________________________________________________________________________________________

8 9

See Evidence Act 1906 (WA), s 106B(2); and Evidence Act 1910 (Tas), s 122B(1). See Evidence Act 1958 (Vic), s 23(1); Evidence Act 1977 (Qld), s 9(1); and Evidence Act 1929 (SA), s 12(1). 10 See R v Brown [1977] Qd R 220; R v Schlaefer (1992) 57 SASR 423 and Attorney General’s Reference (No 2 of 1993) (1994) 4 Tas R 26. 11 See Evidence Act 1958 (Vic), s 23(1)(b); and Evidence Act 1929 (SA), s 12(2)(b). 12 See Evidence Act 1977 (Qld), s 9(1); and Evidence Act 1906 (WA), s 106C.

31

Principles of Evidence • that the judge considers the child capable of giving an intelligible account of the events in question;13 and • that the child be capable of responding rationally to questions about the event.14 Victoria imposes the first and fourth requirements; Queensland the second; Western Australia the third; South Australia the first, third and fourth; and Tasmania and the Northern Territory the third. In all of the States other than South Australia, a child who fails to satisfy the relevant requirements will not be permitted to testify at all. In South Australia, on the other hand, if the requirements are satisfied the child’s evidence will be treated in the same way as evidence given on oath; but if the requirements are not satisfied, so that the child’s evidence can not be ‘assimilated’ to evidence given on oath, the child will still be permitted to testify, but the evidence will be subject to a corroboration requirement: see Chapter 21: Corroboration and Judicial Warnings. 2.3.1.2 Alternative methods of testifying The formal atmosphere of a courtroom is intimidating even for adults. For children, the environment may be intimidating and alienating in the extreme. The pomp and ritual of court proceedings – designed to impress the participants with the solemnity of the occasion and the majesty of the law – may simply disorient and confuse children. This fact has the potential to diminish the worth of the child’s testimony drastically. Stress and anxiety may make the child less likely to understand the questions being directed at him or her; and it may reduce the prospects of the child answering those questions with complete frankness. Furthermore, in cases where the child is testifying as the victim of an alleged crime, the child’s greatest fear may be realised when he or she finds him or herself in the same room as the accused. In such cases, the presence of the accused may make the child reluctant to testify in support of the allegations. To overcome these problems, a variety of alternative arrangements may now be ordered in cases where children testify. The exact ambit of the provisions varies from jurisdiction to jurisdiction. In Queensland, South Australia and the Northern Territory, the arrangements may be ordered whenever a child gives evidence; in Tasmania, their use is restricted to cases where the child is testifying as the victim of an alleged sexual offence; in Victoria they apply when the child is testifying in proceedings relating to either a sexual offence, or an indictable offence involving an assault or threat of injury; in New South Wales, they apply when a child testifies in __________________________________________________________________________________________________________________________________________

13 See Evidence Act 1929 (SA), s 12(2)(a)(ii); Evidence Act 1910 (Tas), s 122C; Oaths Act 1939 (NT), s 25A(1)(b). 14 See Evidence Act 1929 (SA), s 12(2)(a)(i); and Evidence Act 1958 (Vic), s 23(1)(b). 32

Witnesses proceedings (whether criminal, civil or before a tribunal) relating to the commission of a personal assault; and in Western Australia, their ambit varies from arrangement to arrangement. Some of the arrangements are not in fact restricted in their application to children, and where they are so restricted, there is no uniform cut-off age at which they no longer apply:15 • in Victoria, Queensland and the Northern Territory, the judge may exclude people from the courtroom while the child is testifying;16 • in Victoria, the judge may direct counsel not to robe, or to remain seated while questioning the child;17 • in Victoria, Queensland, Western Australia, South Australia, Tasmania and the Northern Territory, the judge may permit the child to be accompanied by someone who can provide them with emotional support while they give evidence;18 • in New South Wales, Victoria, Queensland, South Australia, and the Northern Territory, the judge may order the use of screens to remove the accused from the child’s field of vision;19 • in Western Australia, an unrepresented accused is prohibited from directly cross-examining the child witness;20 • in Western Australia, the judge may appoint a ‘communicator’, whose function is to communicate and explain – to the child the questions put to the child, and to the court the evidence given by the child;21 • in Queensland and Western Australia, the judge may order that the accused be removed from the court, and placed in a room to which the child’s testimony is transmitted by closed-circuit television or ‘live link’;22 • in all jurisdictions other than Queensland, the child may be permitted to give his or her evidence from a place other than the courtroom by means of closed-circuit television or ‘live link’;23 and __________________________________________________________________________________________________________________________________________

15 For a detailed discussion of the arrangements, see Palmer, A, ‘Child Sexual Abuse Prosecutions and the Presentation of the Child’s Story’ (1997) 23 Monash University Law Review 171, 183–88. 16 See Evidence Act 1958 (Vic), s 37C(3)(f); Evidence Act 1977 (Qld), s 21A(2)(b); and Evidence Act 1939 (NT), s 21A(2)(d). 17 See Evidence Act 1958 (Vic), s 37C(3)(d) and (e). 18 See Evidence Act 1958 (Vic), s 37B; Evidence Act 1977 (Qld), s 21A(2)(d); Evidence Act 1906 (WA), s 106E; Evidence Act 1929 (SA), ss 12(4) and 13(2)(b); Evidence Act 1910 (Tas), s 122E; and Evidence Act 1939 (NT), s 21A(2)(c). 19 See Crimes Act 1900 (NSW), s 405F(2)(b); Evidence Act 1958 (Vic), s 37C(3)(b); Evidence Act 1977 (Qld), s 21A(2)(a); Evidence Act 1929 (SA), s 13(2)(b); and Evidence Act 1939 (NT), s 21A(2)(b). 20 See Evidence Act 1906 (WA), s 106G. 21 See ibid, s 106F. 22 See Evidence Act 1977 (Qld), s 21A(2)(a); and Evidence Act 1906 (WA), s 106N(2)(b). 23 See Crimes Act 1900 (NSW), s 405D(1); Evidence Act 1958 (Vic), s 37C(1); Evidence Act 1906 (WA), s 106N(1)(a); Evidence Act 1929 (SA), s 13(1) and (10)(a); Evidence Act 1910 (Tas), s 122A; Evidence (Closed-circuit Television) Act 1991 (ACT), s 4A(1); and Evidence Act 1939 (NT), s 21A. 33

Principles of Evidence • in Victoria, Queensland and Western Australia, the child’s evidence may be received in a pre-recorded form.24

2.3.2 Physically or mentally disabled witnesses In Victoria the competence tests which apply to children, and which were discussed above, also apply to persons ‘with impaired mental functioning’. Under the uniform evidence legislation, there is also a special competence test applying to witnesses suffering from a disability. This test is applied in addition to those which apply to all witnesses and which were discussed in the previous section of the chapter. Section 13(4) of the legislation provides that a person is not competent to give evidence about a fact if the person ‘is incapable of hearing or understanding, or of communicating a reply to, a question about the fact’, and ‘that incapacity cannot be overcome’. If the incapacity can be overcome, but doing so would incur ‘substantial cost or delay’, and ‘adequate evidence on that matter has been given or will be able to be given, from one or more other persons or sources’, then the witness is competent to give evidence, but not compellable: s 14. Furthermore, in all of the non-uniform evidence legislation jurisdictions, many of the alternative arrangements discussed above in relation to children, can also be ordered in respect of the testimony of a witness suffering from an intellectual impairment or disability.25

2.3.3 Complainants in sexual offence trials Complainants in sexual offence trials constitute another class of witness for whom testifying in the traditional common law trial may prove unduly stressful or traumatic. For this reason many of the alternative arrangements discussed above in relation to children are also available to complainants in sexual offence trials; indeed, some of the arrangements – such as the prerecorded evidence provisions in Victoria – are actually directed at complainants in sexual offence trials, rather than at children. It is only when a child falls into the category of complainant that he or she may make use of this provision. In Victoria, South Australia and the Northern Territory, the fact that the alternative arrangements may be ordered in relation to a complainant in a sexual offence trial is expressly stated in the legislation.26 In Queensland, __________________________________________________________________________________________________________________________________________

24 See Evidence Act 1958 (Vic), s 37B; Evidence Act 1977 (Qld), s 21A(2)(e); and Evidence Act 1906 (WA), ss 106I and 106J. 25 See Evidence Act 1958 (Vic), s 37C(2)(b); Evidence Act 1977 (Qld), s 21A(1)(b)(i); Evidence Act 1906 (WA), s 106R(3)(a); Evidence Act 1929 (SA), s 12(10)(b); Evidence Act 1910 (Tas), s 122I(1)(a); and Evidence Act 1939 (NT), s 21A(1)(b). 26 See Evidence Act 1958 (Vic), ss 37B and 37C(2)(a); Evidence Act 1929 (SA), s 12(10)(c); Evidence Act 1939 (NT), s 21A(1)(c). 34

Witnesses Western Australia and Tasmania, on the other hand, the availability of the alternative arrangements to complainants in sexual offence trials arises from the fact that the arrangements are available to witnesses who are ‘likely to suffer severe emotional trauma’, or ‘to be so intimidated as to be disadvantaged as a witness’, if required to give evidence in the normal way.27 Complainants in sexual offence trials are clearly the class of witness most likely to satisfy one of these requirements.

2.3.4 The accused The competence and compellability of the accused at his or her trial is the same in all Australian jurisdictions:28 • the accused is a competent witness in his or her own defence; • the accused is also a competent, but not compellable, witness in the defence of any of his or her co-accused; but • the accused is free to not testify at all, if he or she so chooses. The decision as to whether or not to testify is one of the most important tactical decisions the accused and his or her counsel must make. The decision has been made more difficult by the abolition in all Australian jurisdictions, other than Norfolk Island, of an accused’s right to give unsworn evidence. This right allowed the accused to make a statement or be examined by their counsel, without being exposed to cross-examination by the prosecution. The choice is now more stark: an accused person who chooses to testify must take the risk that he or she will fare badly in cross-examination. An accused person who chooses to not testify must take the risk that the tribunal of fact will interpret their failure to do so as indicative of guilt. That the tribunal of fact is entitled to use the accused’s failure to testify in this way was confirmed by the High Court in Weissensteiner v R (1993). 2.3.4.1 The evidential significance of failure to testify In Weissensteiner v R (1993) a majority of the High Court held that the tribunal of fact could use an accused person’s failure to testify if three conditions were met:29 • first, the prosecution case must already (that is, without taking into account the failure to testify) be able to support an inference of guilt;

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27 See Evidence Act 1977 (Qld), s 21A(1)(b)(ii) and (iii); Evidence Act 1906 (WA), s 106R(3)(b); and Evidence Act 1910 (Tas), s 122I(1)(b). 28 See the uniform evidence legislation, s 17; Evidence Act 1958 (Vic), s 399(1); Evidence Act 1977 (Qld), s 8(1); Evidence Act 1906 (WA), s 8(1); Evidence Act 1929 (SA), s 18(1); Evidence Act 1910 (Tas), s 85(4); and Evidence Act 1939 (NT), s 9(1). 29 See Palmer, A, ‘Silence in Court: The Evidential Significance of an Accused Person’s Failure to Testify’ (1995) 18 University of New South Wales Law Journal 130. 35

Principles of Evidence • secondly, the accused must be seen to be in possession of some knowledge of the events forming the subject of the charge which is peculiar to him or herself; • thirdly, it must be reasonable to expect that the accused would give that version of events if he or she were innocent. The third condition will generally be satisfied whenever the first two are. The second condition will usually only be satisfied in cases where the prosecution case is based almost entirely on circumstantial evidence, because it is only in such cases that the accused can be said to have knowledge ‘peculiar’ to him or herself. Weissensteiner itself provides an excellent example of a case where all three conditions were satisfied. In that case the accused was charged with the murder of two persons with whom he had gone sailing in the South Pacific. The bodies of the two were never found. The inference that the accused had murdered them rested on the following circumstances: • the fact that there had been no trace of the two since shortly after they and the accused had set sail together; • the fact that the accused was in possession of the boat, which belonged to the two and on which they had spent all their savings; • the fact that the boat still contained numerous personal possessions belonging to the two, including possessions which they always took with them; and • the fact that the accused had told numerous inconsistent stories about where the two had gone, none of which could be substantiated. The High Court agreed with the trial judge that in these circumstances, the accused’s failure to testify could be used by the tribunal of fact. The court insisted, however, that the failure to testify could not be used as actual evidence of guilt. Rather, failure to testify could only be used by the tribunal of fact when deciding whether the prosecution had discharged its burden of proof. As is discussed in Chapter 19: The Burden and Standard of Proof, in a case based on circumstantial evidence the requirement of proof beyond reasonable doubt means that the tribunal of fact must be satisfied that the evidence is such as to render unreasonable all hypotheses consistent with innocence. Failure to testify can be used by the tribunal of fact as a basis for concluding that there are no reasonable hypotheses consistent with innocence, and that guilt has accordingly been proven beyond a reasonable doubt. It will have this effect if the tribunal takes the view that if there had been any substance to any of the hypotheses consistent with innocence, then the accused would have testified in support of them. 2.3.4.2 Comment on failure to testify In all Australian jurisdictions a co-accused is permitted to comment (to the jury) on an accused person’s failure to testify; but different jurisdictions take 36

Witnesses different approaches to the question of whether the judge and prosecutor are permitted to make such comment: • In Victoria and the Northern Territory, neither judge nor prosecutor may comment on an accused person’s failure to testify.30 This prohibition is applied extremely stringently, so that no ‘reference, direct or indirect, and either by express words or the most subtle allusion’ can be made to the fact that the accused could have testified but chose not to.31 However, the principles in Weissensteiner v R (1993) operate independently of any rules which permit or prohibit comment on an accused person’s failure to testify. This means that the jury are still permitted to use the accused’s failure to testify in the manner endorsed in Weissensteiner; but because of the prohibition on comment, the judge is not permitted to tell them this.32 • Under the uniform evidence legislation, and in Western Australia, South Australia, and Tasmania the judge, but not the prosecutor, is permitted to comment on an accused person’s failure to testify; such comment as is made should of course be consistent with Weissensteiner v R (1993), and this is reinforced by s 20(2) of the uniform evidence legislation, which provides that ‘the comment must not suggest that the defendant failed to give evidence because the defendant was, or believed that he or she was, guilty of the offence concerned’.33 • In Queensland there is no legislative prohibition, so both judge and prosecutor are permitted to comment on a failure to testify. Such comments should still, of course, be consistent with the decision in Weissensteiner v R (1993).

2.3.5 The accused’s family In all Australian jurisdictions, the accused’s family members are both competent and compellable to give evidence for the defence, and competent to give evidence for the prosecution. The one exception to this is in Tasmania, where the accused’s spouse is only compellable for the defence in certain situations. In all jurisdictions, though, the main issue is whether the accused’s family members will be compellable to give evidence for the prosecution. The general rule is that spouses will not be compellable unless the law provides that they are; and that other family members will be compellable unless the law provides that they are not. There are three main models to choose from. __________________________________________________________________________________________________________________________________________

30 See Evidence Act 1958 (Vic), s 399(3); and Evidence Act 1939 (NT), s 9(3). 31 See Bataillard v R (1907) 4 CLR 1282, 1291 (Isaacs J). 32 In these jurisdictions, the Weissensteiner principles will only be of any real practical significance on appeal, when an appellate court might take the accused’s failure to testify into account in determining whether a conviction was unsafe or unsatisfactory. See, eg, R v Neilan [1992] 1 VR 57, 65. 33 See the uniform evidence legislation, s 20(2); Evidence Act 1906 (WA), s 8(1)(c); Evidence Act 1929 (SA), s 18(1)II; and Evidence Act 1910 (Tas), s 85(8). 37

Principles of Evidence The first model is to simply make the spouse compellable for the prosecution. This model only operates in the Northern Territory.34 The second model is to make spouses compellable for the prosecution, but to give the judge a discretion to exempt them from testifying. This model operates in uniform evidence legislation jurisdictions and in Victoria and South Australia. Although their precise wording varies, these discretions typically require the trial judge to balance the risk of harm to the witness or to their relationship with the accused against the importance of their evidence. Under the uniform evidence legislation, and in South Australia the discretion applies to the accused’s spouse, de facto spouse (in South Australia de facto spouses must have either cohabited for five years or have had a child together), parent or child; in Victoria the discretion applies to the accused’s spouse, parent or child, but does not apply to de facto spouses. Furthermore, under the uniform evidence legislation, exemption from testifying can not be granted when the accused is charged with certain specified offences, mainly offences of domestic violence or child abuse.35 The third model is to make the compellability of the spouse depend upon the nature of the offence with which accused is charged. This model operates in Queensland, Western Australia and Tasmania. The legislation of each jurisdiction lists offences in respect of which the accused’s spouse is compellable. The spouse is also compellable in Queensland and Tasmania, when the accused is charged with a committing an offence against a person who was under the age of 16 at the time; in Western Australia and Tasmania, when the accused is charged with committing an offence against the property of the spouse; and in Queensland, when the accused is charged with committing an offence of violence against the spouse (this being the main category of case where the spouse would have been competent at common law).36

2.4

The examination of witnesses

The examination of a witness falls into three stages, only the first of which is obligatory: • first, the party calling the witness examines the witness in chief; • secondly, the opposing party (or parties) may cross-examine the witness; and • finally, the party calling the witness may re-examine the witness. __________________________________________________________________________________________________________________________________________

34 Evidence Act 1939 (NT), s 9(5). 35 See the uniform evidence legislation, ss 18 and 19; Crimes Act 1958 (Vic), ss 399(2), 400(2) and 400(3); and Evidence Act 1929 (SA), s 21. 36 See Evidence Act 1977 (Qld), ss 8(2)–(7). Evidence Act 1906 (WA), s 9(1)(c); and Evidence Act 1910 (Tas), s 85(6), 85(7) and 85A. 38

Witnesses That this is the ordinary order of examination is confirmed by s 28 of the uniform evidence legislation. Each of these stages of the examination of a witness is discussed in turn below. Before turning to the different stages of the examination, however, the chapter discusses the manner and form in which witnesses are questioned, and the role of the judge in the examination of witnesses. It is also important to note that this work is only concerned with the rules which govern the examination of witnesses. Conformity to the rules of evidence is merely one aspect of effective witness examination; the other aspects, which are probably of greater practical importance, are generally dealt with in works on advocacy: see, for example, Mauet, T and McCrimmon, L, Fundamentals of Trial Techniques, Australian edition, 1992, Melbourne: Longman Cheshire.

2.4.1 Manner and form of questioning In a common law trial, witnesses give their evidence in a question and answer format. That is, they must tell their story in response to the questions asked of them by counsel. The witness must answer the questions asked by counsel (unless either the witness’s claim of privilege or opposing counsel’s objection to the question is upheld by the judge); and the witness can only answer the questions asked by counsel. Although this can be frustrating for the witness, there are several possible justifications for requiring evidence to be given in this way. The first arises from the adversarial nature of criminal proceedings: the witnesses are not there to tell their story, they are there to assist the parties to the litigation. Those parties are entitled to further their cause by asking the questions to which they want answers, regardless of how frustrating this may be for the witness. The second possible justification is that requiring evidence to be given in this way is efficient: only the parties know which parts of the witness’s story are relevant to the litigation, and allowing counsel to direct the witness by their questions to those aspects of their story which are relevant may save the court time. Thirdly, counsel can, by their questions, attempt to ensure that the witness does not give inadmissible evidence: that is, evidence which is in breach of one or more of the exclusionary rules of evidence. It might, for example, be natural for a witness to include hearsay in the telling of their story, but hearsay is generally inadmissible. Although the question and answer format is also the norm under the uniform evidence legislation, s 29(2) of the legislation makes provision for a witness to give evidence ‘wholly or partly in narrative form’. Section 29(4) of the legislation also confirms the common law position, that evidence ‘may be given in the form of charts, summaries or other explanatory material if it appears to the court that the material would be likely to aid its comprehension of other evidence that has been given or is to be given’: see Butera v DPP 39

Principles of Evidence (1987). Sections 42A and 42B of the Evidence Act 1958 (Vic) are to similar effect.

2.4.2 The role of the judge In theory, the examination of witnesses is entirely a matter for the parties, rather than for the trial judge. This is a function of the adversarial nature of common law proceedings, where the judge’s role is to act as umpire rather than inquisitor. It is, thus, for the parties and for the parties alone to decide which witnesses to call, what order to call them in, and what questions to ask them. In practice, however, limited involvement by the trial judge is permitted. The trial judge may, for example, ask questions designed to eliminate any ambiguities in the witness’s evidence; and it is even permissible for the judge to call a witness, although the judge should only do so in civil proceedings if the parties consent, and in criminal proceedings, in very exceptional circumstances: see Re Enoch and Zaretzky, Bock & Co Arbitration (1910), R v Damic (1982), and R v Apostilides (1984). Any common law powers the judge holds in respect of the examination of witnesses are preserved by s 11 of the uniform evidence legislation; s 26 of the legislation also confirms the power of the court to make orders in relation to, among other things, ‘the way in which witnesses are to be questioned’ and ‘the order in which parties may question a witness’.

2.4.3 Examination-in-chief A witness is first examined by the party which called him or her. This is called the examination-in-chief. The aim of examination-in-chief is to elicit from the witness their account of the events in question, or their observations, in as unobtrusive a fashion as possible. 2.4.3.1 Leading questions Perhaps the most important rule of examination-in-chief is that counsel is not permitted to ask leading questions. There are two kinds of leading question. The first is a question which indicates to the witness the answer which counsel is seeking. The second is a question which assumes the existence of facts which are in dispute. The phrase ‘leading question’ is therefore defined in the Dictionary section of the uniform evidence legislation as follows: ... leading question means a question asked of a witness that: (a) directly or indirectly suggests a particular answer to the question; or (b) assumes the existence of a fact the existence of which is in dispute and as to the existence of which the witness has not given evidence before the question is asked.

An example of the first type of question would be a question to a witness in a murder trial such as: ‘At 9.40 pm on Thursday 7 November, did you see the 40

Witnesses accused leaving the deceased’s home covered in blood?’ The form of the question clearly indicates that the witness should answer ‘yes’. The information should instead be sought from the witness by means of nonleading questions. Several such questions would be necessary before all the information could be obtained. It would first be necessary to ask the witness where they were on the night in question; and only when this had been well established, would it be possible to ask the witness what they had seen. The classic example of the second type of leading question is the question ‘have you stopped beating your wife yet?’, when the witness has not yet admitted that he had ever beaten his wife at all. Whether the witness answers ‘yes’ or ‘no’, the answer seems to imply an admission that the witness has, at some time, beaten his wife. Both types of leading question are prohibited during examination-in-chief. The importance of this rule is clear: without it counsel could simply put words into the mouth of the witness, and thus lead a compliant witness to testify in exact conformity with the case they are trying to establish. The worthlessness of such testimony should be obvious. Indeed, someone with absolutely no memory of the event in question – who may not even have witnessed it – would be capable of providing such testimony. The prohibition is not applied inflexibly, however. Thus, s 37(1) of the uniform evidence legislation, which reflects the common law approach, provides that: A leading question must not be put to a witness in examination-in-chief or reexamination unless: (a) the court gives leave; or (b) the question relates to a matter introductory to the witness’s evidence; or (c) no objection is made to the question and (leaving aside the party conducting the examination-in-chief or re-examination) each other party to the proceeding is represented by a lawyer; or (d) the question relates to a matter that is not in dispute; or (e) if the witness has specialised knowledge based on the witness’s training, study or experience – the question is asked for the purpose of obtaining the witness’s opinion about a hypothetical statement of facts, being facts in respect of which evidence has been, or is intended to be, given.

It may also be perfectly acceptable for counsel to ‘jog’ a witness’s memory by directing their attention to an area they have overlooked in giving evidence, provided that counsel does not overstep the mark and actually indicate to the witness what answer should be given. 2.4.3.2 Refreshing memory The common law’s emphasis on oral testimony together with the inevitability of delay demand a pragmatic response from the law when it comes to allowing the use of aids to memory: given the lengthy delays between charge 41

Principles of Evidence and trial, many witnesses have forgotten some or all of the detail of what they witnessed by the time they come to testify. This is especially likely to be true if what was witnessed was simply a routine ordinary part of the witness’s life: as, for example, where a doctor is asked to give evidence about a medical examination he or she carried out some time before the trial, or where a police officer gives evidence about the investigation leading up to the charging of the accused. The prohibition on leading questions in examination-in-chief means that counsel is not permitted to remind the witness of what they have forgotten: so how may memory be revived? Refreshing memory in court: common law. A witness who forgets may, with the leave of the court, be permitted to refer to a document in order to refresh his or her memory. At common law, leave will only be granted if the court is satisfied that the following conditions are met: that the witness’s memory has been exhausted and needs ‘refreshing’; that the document to be used to refresh the witness’s memory was either made or verified by the witness at a time when the facts were still fresh in his or her mind; and that the document is either the original or a verified copy of the original: see Heatherington v Brooks (1963), R v Van Beelen (1972) and R v Singh (1977). These are things which must be established from the witness concerned through the use of non-leading questions. If the witness declares him or herself unable to recall the answer to a particular question, or if counsel is aware that the witness has forgotten something contained in his or her statement, then counsel might ask a series of questions like the following: Q: Can you remember anything else? A: No. Q: Is there anything that would help you to remember? A: Yes, my statement would. Q: Do you have your statement with you? A: Yes, I do. Q: When did you make your statement? A: When I was interviewed by the police. Q: And when was that? A: The day after [whatever the event is].

The first question establishes that the witness’s memory has been exhausted, the second that there is a document that could be used to refresh the memory, the third question that it is the original, and the fourth and fifth questions that it was made while the events were still fresh in the witness’s memory. If leave is granted, opposing counsel can ask to inspect the document and can then cross-examine the witness on it. The general rule is that when a party calls for the production of a document in the possession of its opponent, the opponent can force the party calling for the document to tender it in evidence:

42

Witnesses see Walker v Walker (1937). In other words, the penalty for calling for a document is that a document which might otherwise have been inadmissible may become admissible. This rule does not apply in the case of documents used to refresh memory: counsel can call for such documents ‘without penalty’: see R v Harrison (1966).37 Refreshing memory in court: the uniform evidence legislation. The position under s 32 of the uniform evidence legislation is essentially the same as at common law, but with greater flexibility. The flexibility arises from the fact that the conditions above are merely factors to be taken into account in determining whether or not the court should grant leave, rather than conditions precedent to the granting of leave. Thus, s 32(1) provides that ‘a witness must not, in the course of giving evidence, use a document to try and revive his or her memory about a fact or opinion unless the court gives leave’. Section 32(2) then provides that: Without limiting the matters that the court may take into account in deciding whether to give leave, it is to take into account: (a) whether the witness will be able to recall the fact or opinion adequately without using the document; and (b) whether so much of the document as the witness proposes to use is, or is a copy of, a document that: (i) was written or made by the witness when the events recorded in it were fresh in his or her memory; or (ii) was, at such a time, found by the witness to be accurate.

Furthermore, s 32(3) permits a witness who has been permitted to use a document to refresh their memory actually to read aloud from that document.38 Section 33(1) goes even further, recognising the unique position of police officers, by allowing them in criminal proceedings to ‘give evidencein-chief for the prosecution by reading or being led through a written statement previously made by the police officer’. Section 33(2) stipulates, among other things, that a written statement can only be used for this purpose if it was made ‘at the time of or soon after the occurrence of the events to which it refers’. Section 35 of the legislation reverses the general common law rule that a party calling for a document in the possession of its opponent may be forced to tender that document in evidence: see the discussion under the previous heading. In the context of the refreshing of memory, the effect of s 35 is that a party may call for, and inspect, a document used to refresh memory, without that document becoming admissible evidence. __________________________________________________________________________________________________________________________________________

37 See Heydon, J, Cross on Evidence, Australian edition, North Ryde, NSW: Butterworths [17240]–[17245], and Ligertwood, A, Australian Evidence, 2nd edn, 1993, North Ryde, NSW: Butterworths, pp 387–90, for more complete discussions of these rules. 38 For a discussion of ‘freshness’ of memory, see H v R (1992) 92 A Crim R 168, 172. 43

Principles of Evidence Refreshing memory out of court. If the witness chooses instead to refresh his or her memory before coming to court, then there are no limitations on what he or she may use for this purpose. Certainly, no objection can be taken to a witness being shown a copy of a statement they may earlier have made. If counsel becomes aware that the witness has refreshed their memory in this way, then they may call for the production of the document – again ‘without penalty’ – and production will be ordered: see R v Pachonick (1973) and s 34 of the uniform evidence legislation. Under s 34, failure to produce a document used to refresh memory out of court, may result in the witness’s evidence being ruled inadmissible. 2.4.3.3 Hostile and unfavourable witnesses Witnesses do not always testify as expected. At common law a witness who is called in order to prove a particular fact in issue, but who fails to do so, is described as an unfavourable witness. Where this failure is due to the fact that the witness is unwilling to tell the truth, the witness is described as a hostile witness. Common law. At common law, the only remedy available for an unfavourable witness is to prove the facts in issue by other means: see Ewer v Ambrose (1825). Where the judge considers the witness to be hostile, however, leave may be granted to the party to conduct its examination-in-chief of the witness in the manner and form of a cross-examination; that is, by means of leading questions. In deciding whether the witness is hostile, or merely unfavourable, the question for the court to decide is whether the witness is deliberately withholding material evidence, or lying. In deciding this, the court may take into account both the witness’s demeanour, and the fact that the witness has on previous occasions made statements inconsistent with his or her testimony at trial: see McLellan v Bowyer (1961). Where a party seeks to have a witness declared hostile on the basis of a prior inconsistent statement, there are statutory procedures regulating the means by which the prior inconsistent statement may be put to the witness and proved.39 The question of hostility will usually be determined on a voir dire in the absence of the jury. Opposing counsel may cross-examine the witness in order to prove that the witness is not hostile. The witness may be able to explain the inconsistency in a way which rebuts the suggestion of hostility. If the witness is declared hostile, then cross-examination is permitted. The extent to which a party may ask questions designed to impeach the credibility of a witness who has been declared hostile is discussed in Chapter 14: Credibility Evidence.

__________________________________________________________________________________________________________________________________________

39 Evidence Act 1958 (Vic), s 34; Evidence Act 1977 (Qld), s 17; Evidence Act 1906 (WA), s 21; Evidence Act 1929 (SA), s 27; Evidence Act 1910 (Tas), s 98; and Evidence Act 1939 (NT), s 18. 44

Witnesses The uniform evidence legislation. Under the uniform evidence legislation, the common law distinction between hostile and unfavourable witnesses is abolished. The key provision is s 38(1), which is headed ‘Unfavourable witnesses’ and which provides that: A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about: (a) evidence given by the witness that is unfavourable to the party; or (b) a matter of which the witness may reasonably be supposed to have knowledge about and which it appears to the court the witness is not, in examination-in-chief, making a genuine attempt to give evidence; or (c) whether the witness has, at any time, made a prior inconsistent statement.

Where such questioning is permitted it is, in the first instance, restricted to the material which provided the basis for the granting of leave; for example, where the making of a prior inconsistent statement was the basis for granting leave, cross-examination is, in the first instance, restricted to the making of the prior inconsistent statement. The words ‘in the first instance’ are necessary to take account of s 38(3), which provides that the court may also grant leave for the witness to be cross-examined about matters relevant only to credibility; whether such questions are permissible will depend on the rules discussed in Chapter 14: Credibility Evidence. Such questioning is, according to s 38(2), to be taken to be cross-examination. The significance of this is that the rules which regulate cross-examination, and which are discussed in the next section, also apply to the cross-examination of a party’s own witness. The main difference between the common law and s 38(1) is that under s 38(1), a party can be permitted to cross-examine its own witness even if the court is satisfied that the witness is attempting to tell the truth at trial. The mere fact that the witness has given evidence which is unfavourable to the party’s case, or has made a prior inconsistent statement, is sufficient grounds for the granting of leave to cross-examine. Even the test in s 38(1)(b) of whether the witness is ‘making a genuine attempt to give evidence’ probably sets a slightly lower threshold to cross-examination than the common law test of whether the witness is deliberately withholding material evidence.

2.4.4 Cross-examination Belief in the ability of cross-examination to expose the truth is one of the foundations of the common law trial. Indeed, Wigmore claimed that crossexamination ‘is beyond any doubt the greatest legal engine ever invented for the discovery of truth’.40 This is mainly because cross-examination provides the parties with a means of probing and testing the evidence against them and so exposing the flaws and weaknesses in the evidence to the tribunal of fact. __________________________________________________________________________________________________________________________________________

40 Wigmore, J, Wigmore on Evidence, 3rd edn, 1940, Boston: Little, Brown & Co, § 1367. 45

Principles of Evidence One of the most important aims of cross-examination, then, is to damage the credibility of the witness so as to increase the likelihood that the witness’s testimony will be rejected by the tribunal of fact. An equally important aim, however, is for the cross-examiner to elicit from his or her opponent’s witness material which is favourable to his or her own case. 2.4.4.1 Leading questions The major formal difference between cross-examination and examination-inchief is that leading questions are permitted in cross-examination. Indeed, leading questions of the first kind described above are not only permitted; they are also – as a matter of effective advocacy – highly recommended, because of the control they allow the cross-examiner to have over the witness. Leading questions of the second kind, however, are likely to be disallowed by the judge in the exercise of his or her discretion because of their unfairness to witnesses, and the misleading nature of the answers they elicit. Although the use of leading questions in cross-examination is also permitted under the uniform evidence legislation, s 42(1) of the legislation gives the court the power to disallow leading questions. Section 42(2) sets out a series of considerations which are to be taken into account by the judge in deciding whether or not to exercise this discretion; the considerations suggest that leading questions would most commonly be disallowed when it appears to the judge that the witness actually favours the cross-examiner’s case. In addition, s 42(3) provides that leading questions must be disallowed if the court is ‘satisfied that the facts concerned would be better ascertained if leading questions were not used’. 2.4.4.2 Improper questions Section 41 of the uniform evidence legislation gives the court the power to disallow questions which are ‘misleading’ or ‘unduly annoying, harassing, intimidating, offensive, oppressive or repetitive’. There are equivalents to this provision in non-uniform evidence legislation jurisdictions: see Evidence Act 1958 (Vic), ss 39–40; Evidence Act 1977 (Qld), ss 20–21; Evidence Act 1906 (WA), ss 25–26; Evidence Act 1929 (SA), ss 22–25; Evidence Act 1910 (Tas), ss 102–103; and Evidence Act 1939 (NT), ss 13–16. 2.4.4.3 Prior inconsistent statements One of the primary methods of impeaching the credibility of a witness is by leading evidence of the fact that the witness has, on previous occasions, made statements which are inconsistent with their testimony at trial. Such statements are referred to as ‘prior inconsistent statements’. The admissibility of questions about prior inconsistent statements is discussed in Chapter 14: Credibility Evidence. Our present concern is only with the form which such questions must take.

46

Witnesses In all jurisdictions, a party may be cross-examined about a prior inconsistent statement without first being given particulars of the statement or, if it is recorded in a document, being shown the statement.41 This allows the cross-examiner to retain the weapon of surprise. If the witness does not admit to having made the statement, the cross-examiner may wish to prove that it was in fact made. In order to be permitted to do so, however, the crossexaminer must first inform ‘the witness of enough of the circumstances of the making of the statement to enable the witness to identify the statement’, and then draw ‘the witness’s attention to so much of the statement as is inconsistent with the witness’s evidence’.42 Only if the witness still refuses to admit to having made the statement will independent proof of it be permitted. These comments obviously only apply when the prior inconsistent statement was made by the witness. A witness can not be cross-examined on a statement made by another person, unless that statement has been admitted in evidence: see The Queen’s Case (1820), and s 44 of the uniform evidence legislation. 2.4.4.4 The rule in Browne v Dunn One of most important rules of cross-examination is known as ‘the rule in Browne v Dunn’. Where a party intends to lead evidence which will contradict the evidence given by one of their opponent’s witnesses, or call for an explanation from such a witness, the rule in Browne v Dunn requires that the contradiction be put to the witness in cross-examination. Take, for example, a case where the outcome depended on whether one of the parties was in Melbourne on a particular day, and the party had testified to that effect. If the party’s opponent intended to lead evidence to show that the party had actually been in Sydney on the day in question, the rule in Browne v Dunn would require the opponent to put this allegation to the party in crossexamination: see Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (1983). There are several justifications for this rule. First, it is a matter of fairness to the witness that they should be given an opportunity to comment on any contradictory or discrediting material. Secondly, it is important that the party which called the witness should know whether or not the witness’s evidence is to be contested, because if it is, the party may wish to call further evidence to corroborate it. Finally, it assists the tribunal of fact by ensuring that the issues in dispute are ‘well and truly joined on the evidence’; As Wells J commented in Reid v Kerr (1974): __________________________________________________________________________________________________________________________________________

41 See the uniform evidence legislation, s 43(1); Evidence Act 1958 (Vic), ss 35–36; Evidence Act 1977 (Qld), ss 18–19; Evidence Act 1906 (WA), ss 20–21; Evidence Act 1929 (SA), ss 28–29; Evidence Act 1910 (Tas), ss 98–99; and Evidence Act 1939 (NT), ss 19–20. 42 See the uniform evidence legislation, s 43(2); the requirements in non-uniform evidence legislation jurisdictions are substantially the same.

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Principles of Evidence ... there is nothing more frustrating to a tribunal of fact than to be presented with two important bodies of evidence which are inherently opposed in substance but which, because Browne v Dunn has not been observed, have not been brought into direct opposition, and serenely pass one another by like two trains in the night.43

The rule in Browne v Dunn is supplemented, but not replaced, by s 46 of the uniform evidence legislation. This means that the common law rule continues to operate in uniform evidence legislation jurisdictions. Where the rule in Browne v Dunn is breached, there are several possible remedies or sanctions: • the court may order the recall of the witness so that the matters which should have been put to the witness in cross-examination can be put now: see Reid v Kerr (1974) and R v Popescu (1989); the power to make such orders is specifically confirmed by s 46 of the uniform evidence legislation; • the court may allow a party to re-open its case so as to lead evidence to rebut the contradictory evidence, or to corroborate the evidence of the witness to whom the contradictory evidence should have been put; • the court may make comments adverse to the party in breach while directing the jury on the evidence; or • the tribunal of fact may more readily accept the testimony of a witness to whom the contradictory evidence was not put. The court does not appear, however, to have the power to reject relevant and otherwise admissible contradictory evidence on the grounds that it should have been, but was not, put to a witness in cross-examination: see R v Allen (1989) and Crosthwaite v City of Elizabeth (1989). The unavailability of this option under the uniform evidence legislation is a result of the fact that s 56(1) of the legislation states that: ‘Except as otherwise provided by this Act, evidence that is relevant in proceeding is admissible in the proceeding.’ Nowhere in the legislation does it provide that breach of the rule in Browne v Dunn is a grounds for the exclusion of evidence.

2.4.5 Re-examination After the cross-examination, counsel calling the witness has the right to reexamine him or her. This is an important rule: because the witness must ‘answer the question’ and do no more than answer the question, a crossexaminer may, by the use of leading questions, obtain from the witness an answer which is quite misleading. The witness might have wanted to add qualifications to their answer or to explain it, but the cross-examiner has the power to force the witness to give their answer without any such qualifications or explanations. __________________________________________________________________________________________________________________________________________

43 Reid v Kerr (1974) 9 SASR 367, 373–74. 48

Witnesses Through re-examination counsel can ensure that the witness has the opportunity to add their qualifications or explanations, and to clear up any ambiguities in the witness’s answer. Because of its purpose – to ensure that answers given in cross-examination are not misleading or ambiguous – reexamination is restricted to matters arising out of the cross-examination. It does not provide an opportunity for counsel to ask any questions they might have forgotten to ask during the examination-in-chief. Thus s 39 of the uniform evidence legislation, which is headed ‘Limits on re-examination’, provides that on re-examination: (a) a witness may be questioned about matters arising out of evidence given by the witness in cross-examination; and (b) other questions may not be put to the witness unless the court gives leave.

As with examination-in-chief, leading questions are prohibited during reexamination.

2.5

Summary

2.5.1 Competence and compellability Although the precise rules vary from jurisdiction to jurisdiction, in general: • a person will be competent to give sworn evidence if they understand the nature of the obligation imposed by the oath; • issues of competence will usually only arise in relation to children and the physically or mentally disabled; • persons (in particular children) who are not competent to give sworn evidence may be permitted to give unsworn evidence; • most competent witnesses are also compellable; • the main exception to this rule is the accused; in several jurisdictions, the accused’s family may also be excused from testifying for the prosecution; and • in certain circumstances, the tribunal of fact may be entitled to draw an adverse inferences from a party’s failure to call a particular witness, or from an accused person’s failure to testify.

2.5.2 The examination of witnesses At both common law and under the uniform evidence legislation: • leading questions are prohibited in examination-in-chief and reexamination, but permitted in cross-examination; • if, however, a witness proves to be hostile (or, under the uniform evidence legislation, unfavourable), the party which called the witness may be

49

Principles of Evidence

•

• •

•

permitted to conduct its examination of the witness in the manner of a cross-examination, ie, through the use of leading questions; during examination-in-chief, a witness may be permitted to refresh his or her memory from a document which was made while the facts were still fresh in the witness’s mind; there are special rules regulating the way in which a witness may be crossexamined about a prior inconsistent statement; a cross-examiner is required by the rule in Browne v Dunn to put to a witness those aspects of its case which contradict the evidence given by the witness or in relation to which the witness might be able to offer an explanation; and re-examination is restricted to matters arising out of cross-examination.

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CHAPTER 3

DOCUMENTS

3.1

Introduction

3.1.1 Overview This chapter is concerned with the means by which the contents of documents can be proved. It is not concerned with the admissibility of the contents of documents: that is determined by the rules discussed in Part II: Admissibility of Evidence. In order to be admissible, the contents of a document must be relevant to the facts in issue, and must not fall foul of any of the exclusionary rules of evidence. This will depend on the purpose for which the evidence is being adduced, a question which is discussed below. Once the purpose for which the evidence is being adduced has been identified, it will be possible to assess whether the contents of the document are relevant and admissible. Once this has been established, consideration can turn to the issues discussed in this chapter. There are two main issues: the first is whether the contents of a relevant and admissible document can be proved by secondary evidence; that is, by evidence other than the original document itself. The second question relates to the manner in which the document must be authenticated; that is, proved to be that which it purports, or is claimed, to be. There are many, many statutory provisions which affect the answer to these questions, far more than can be examined in a work of this scope. This chapter therefore takes a fairly broadbrush approach to the issues it discusses, and does not provide detailed references to all the relevant statutory provisions. For more detailed discussion see Brown, R, Documentary Evidence in Australia, 1988, Sydney: Law Book Co; Heydon, J, Cross on Evidence, North Ryde, NSW: Butterworths, Chapter 20; and Ligertwood, A, Australian Evidence, 2nd edn, 1993, North Ryde, NSW: Butterworths, pp 345–54.

3.1.2 The purposes for which the contents of documents can be adduced Generally, the contents of documents will be hearsay, because they will contain statements which are being offered to prove the truth of that which they state; if this is the case, then in order to be admissible, the document must satisfy the requirements of an exception to the hearsay rule, as well as the requirements discussed in this chapter. Alternatively, the contents of a document might be relevant to the credibility of a witness, as where it contains a prior consistent or inconsistent statement; if this is the case, then the

51

Principles of Evidence admissibility of the contents of the document will turn on the rules which govern the admissibility of credibility evidence. In other cases, the contents of a document may be relevant because they have direct legal effect, as with a contract or a will. If the outcome of the proceedings depends on the terms of the contract or will, then the contract or will will obviously be admissible in evidence, provided that it meets the requirements discussed in this chapter. Similarly, the contents of a ‘document’ such as the tape recording of a phone call might provide original evidence of, for example, the existence of a criminal conspiracy or of the making of an offer to sell illegal drugs. If, however, it is not the contents of the document which are relevant, but some aspect of the document as a physical object, then it is the requirements discussed in the next chapter which must be satisfied; this would be the case, for example, if a document found at the scene of a crime had the accused’s fingerprints on it, where this fact was being offered to prove that the accused had been at the scene of the crime. In such a case, the document is not ‘documentary’ evidence. Similarly, if the writing on an object is simply being used as a means of identifying the object then the evidence is not considered to be ‘documentary’ in nature.

3.2

What is a document?

At common law, a document is essentially an object upon which is visibly inscribed intelligible writing or figures. The medium on which the writing or figures are inscribed is unimportant; an inscription on a wall would, thus, count as a document for the purposes of the rules discussed in this chapter. What matters is that the inscription must be visible to the human eye: a computer disk would not, therefore, be classed as a document at common law because the writing it may contain is not visible to the human eye. The computer disk is characteristic of modern information storage media such as tape recordings, video recordings and compact disks, the information on which can only be retrieved by means of some sort of device. Modern information storage media have, thus, rendered the common law definition of document redundant. Statutory definitions of ‘document’, therefore, tend to be much broader than the common law definition. Under the uniform evidence legislation, for example, ‘document’ is defined as follows: document means any record of information, and includes: (a) anything on which there is writing; or (b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; or (c) anything from which sounds, images or writing can be reproduced with or without the aid of anything else; or (d) a map, plan, drawing or photograph. 52

Documents This definition needs to be coupled with that contained in s 47(1) of the legislation, which sets the scope for the rules contained in Part 2.2 of the legislation and discussed in this chapter. Section 47(1) provides that ‘a reference in this Part to a document in question is a reference to a document as to the contents of which it is sought to adduce evidence’. In other words, the rules discussed in this chapter only apply when it is the contents of the document which are relevant. The first point to note about the dictionary definition is its breadth. It clearly includes, for example, films, video and audio recordings, compact disks and computer disks and files. This means that many kinds of evidence which can be experienced by the tribunal of fact themselves – such as photographs, or video or audio recordings – and which are therefore normally considered to be examples of real evidence, are also governed by the rules discussed in this chapter. Similarly broad definitions of the word ‘document’ are contained in the legislation of some of the non-uniform evidence legislation jurisdictions.1

3.3

Secondary evidence of the contents of a document

The question to be addressed in this section is the admissibility of secondary evidence of the contents of a document. The primary evidence of the contents of a document is the original document itself; secondary evidence is anything other than the original; the most common form of secondary evidence these days is a photocopy of the original.

3.3.1 Common law The common law rule is that the contents of a document are only admissible if the party attempting to adduce evidence of the contents is able to tender the original document. This is often described as the last remaining vestige of the ‘best evidence’ rule. The effect of this rule is that a copy of the document is not admissible to prove the contents of the original; nor can its contents be proved by means of a witness who has seen the original. In many situations, however, the original document will be unavailable; in such cases, the ‘best’ evidence of the contents of the document may indeed be the secondary evidence, and if the court insists that only the original document is admissible then it may be impossible to prove what the contents of the document are. For this reason, there are several exceptions to the general rule that the contents of a document can only be proved by means of the original document, and not by secondary evidence. These include the following:2 __________________________________________________________________________________________________________________________________________

1 2

See Evidence Act 1958 (Vic), s 3(1); Evidence Act 1977 (Qld), s 5; Evidence Act 1906 (WA), s 79B; and Evidence Act 1939 (NT), s 4. Cf Evidence Act 1929 (SA), ss 34g and 45b; and Evidence Act 1910 (Tas), s 81A. See Heydon, J, Cross on Evidence, Australian edition, North Ryde, NSW: Butterworths [39040]–[39075]. 53

Principles of Evidence • where the original is in the possession of the opponent of the party wishing to lead evidence of its contents, and the party has served a notice to produce the original on the opponent, and the opponent has failed to do so; • where the original is in the possession of a person who is not a party to the proceedings, and who refuses on lawful grounds (such as a claim of privilege) to produce the document; • where the original has been lost or destroyed; • where it is impossible to produce the original; the original might, for example, be an inscription on a wall; • where the document is a public document (there are numerous statutory provisions governing the proof of public documents); and • finally, there are numerous provisions in the evidence legislation of all jurisdictions allowing the use of reproductions (including photocopies) of original documents in certain circumstances.3

3.3.2 The uniform evidence legislation The uniform evidence legislation sweeps away the common law rules, and replaces them with rules which take a far more flexible approach to the use of secondary evidence of the contents of documents. Section 51, which is headed ‘Original document rule abolished’, thus provides that ‘The principles and rules of the common law that relate to the means of proving the contents of documents are abolished’. Section 48(1) then sets out a variety of different ways by which the contents of a document can be proved. Apart from tendering the document in question itself, these include: • adducing evidence of an admission made by a party about the contents of the document in question, although the admission can only be used against the party which made the admission, or which adduced evidence of it: ss 48(1)(a) and 48(3); the admissibility of such an admission will also depend on the rules discussed in Chapters 9 and 10; • tendering a document that is or purports to be a copy of the document in question or which has been produced by a device – such as a photocopier – that reproduces the contents of documents: s 48(1)(b); s 47(2) provides that the copy need not be an ‘exact’ copy, as long as it is ‘identical in all relevant respects’; because of s 146, proof of the accuracy of the copying device will not normally be necessary; • tendering a document that forms part of the records of a business and which is or purports to be a copy of, extract from, or summary of, the __________________________________________________________________________________________________________________________________________

3

See Evidence Act 1958 (Vic), ss 53–53T; Evidence Act 1977 (Qld), ss 104–29; Evidence Act 1906 (WA), ss 73A–73V; Evidence Act 1929 (SA), s 45c; Evidence Act 1910 (Tas), ss 68A–68ZA; Evidence Act 1939 (NT), s 42B. 54

Documents document in question: s 48(1)(e); because of s 147, proof of the accuracy of any device used to copy the document will not normally be necessary; • where the document in question is a public document, tendering a document that is or purports to be a copy of the document in question and which has been printed by an official government printer, or by authority of a Commonwealth, State or Territory government or Parliament: s 48(1)(f); the scope of this provision is obviously determined by the definition of ‘public document’ contained in the Dictionary section of the legislation; • if the document in question is ‘unavailable’ to a party (a phrase which is defined in Clause 5 of Part 2 of the Dictionary), then the party may prove its contents by adducing evidence of a copy, summary or extract of the document in question, or by adducing oral evidence of its contents: s 48(4); • a party may also prove the contents of a document in question by adducing evidence of a copy, summary or extract of the document in question, or by adducing oral evidence of its contents, if the existence and contents of the document in question are not in issue in the proceedings: s 48(4). Further provisions allowing the use of secondary evidence to prove the contents of documents are discussed below under the heading ‘Particular kinds of documents’.

3.4

Authentication of documents

A party can not simply tender a document without first having a witness or witnesses establish the evidential foundations for having the document admitted into evidence. Apart from those foundations which are required by the rules of admissibility discussed in Part II, it must also be established that the document really is what it purports, or is claimed, to be. There are numerous statutory provisions which are designed to facilitate proof of the authenticity of particular kinds of documents: • Where the document is a public document or an official record, legislation in all jurisdictions provides that the document is to be taken to be what it purports to be without the need for any further evidence of authenticity. There are also provisions in Part 4.3: Facilitation of Proof, of the uniform evidence legislation which create presumptions of authenticity about documents bearing official seals and signatures; by virtue of s 5 of the uniform evidence legislation, these provisions apply to proceedings in all Australian courts. • Where the relevance of a document depends upon the question of whether or not it was executed, the fact that it was executed must be established. This might be established by evidence from a witness to the effect that a signature on the document is indeed the signature of the person it purports to be the signature of; or that the witness recognises the

55

Principles of Evidence handwriting as being the handwriting of the person whose handwriting it is alleged to be; or that the witness saw the person in question execute the document. Where the document is more than 20 years old (or 30 at common law), and has been held in proper custody, the document is presumed to have been validly executed: see, inter alia, Permanent Trustee Co of NSW v Fels (1918), and s 152 of the uniform evidence legislation. • Where the validity of a document depended upon it having been properly attested, at common law it was necessary to prove this fact by calling one of the attesting witnesses to testify, unless the witnesses were unavailable, or the above-mentioned presumption of validity applied. This common law requirement is completely abolished by s 149 of the uniform evidence legislation, and partially abolished in other jurisdictions, where it now only applies in respect of testamentary documents. Where the relevance or admissibility of a document depends on proof of its authenticity, the document is sometimes said to be ‘provisionally’ relevant, pending proof that it is indeed what it purports to be. The way in which courts should approach questions of provisional relevance is discussed in Chapter 5: Relevance.

3.5

Particular kinds of documents

3.5.1 Audio and video recordings The definition of document under the uniform evidence legislation, and in some other statutory regimes, is sufficiently wide to include audio and video recordings. However, the playing of a recording in court allows the tribunal of fact to perceive for itself the sounds and/or images which have been recorded. This is the defining characteristic of real evidence. For this reason, recordings are discussed in the next chapter – Real Evidence – rather than in this one.

3.5.2 Computer-generated evidence These days, a great deal of information is stored on computer disks and other modern information storage media. The information stored on such media can not be accessed directly by a human being; instead, it must be accessed by means of a device such as a computer. For example, business records stored on a computer can only be accessed by opening the records through the correct computer program; similarly, a document written through the use of a wordprocessing program, can only be accessed in its intended form by means of that program. In such cases, s 48(1)(d) of the uniform evidence legislation provides that ‘if the document in question is an article or thing on or in which information is stored in such a way that it cannot be used by the court unless a device is used to retrieve, produce or collate it’, then the contents of the document can be 56

Documents proved by ‘tendering a document that was or purports to have been produced by use of the device’. This means that the contents of a computer disk can be proved by tendering a printout of the information contained on it. If an issue about the accuracy or the reliability of the device is raised, then the effect of ss 146 and 147 is that it will be presumed that the device was accurate or reliable when producing the document, provided that the device was either of a kind that is ordinarily reliable (s 146), or was being used by a business for its purposes (s 147). The information itself must still, of course, be relevant and admissible; s 48(1)(d) merely makes it easier to prove what the information is. Section 48(1)(d) is not, in other words, an exception to the hearsay rule. This contrasts with the approach taken in some jurisdictions, which have created special hearsay exceptions for computer-generated evidence.4

3.5.3 Voluminous and complex documents Where documents are voluminous or complex, a party may, under s 50 of the uniform evidence legislation, seek permission to adduce evidence of the contents of the documents to be given in summary form. The court may grant the application if several conditions are satisfied: • the court is satisfied that it would not otherwise be possible conveniently to examine the evidence because of the volume and complexity of the documents in question; • the party seeking to adduce evidence in summary form has served a copy of the summary on each of the other parties; and • has given the other parties a reasonable opportunity to examine the documents in question.

3.6

Summary

The contents of a document may be proved if the following conditions are met: • the contents of the document are relevant and do not fall foul of any of the exclusionary rules of evidence; • either the original document is tendered, or secondary evidence of the contents of the document is permitted; and • the document is properly authenticated as that which it purports, or is claimed, to be. __________________________________________________________________________________________________________________________________________

4

See Evidence Act 1958 (Vic), s 55B; Evidence Act 1977 (Qld), s 95; and Evidence Act 1929 (SA), ss 59a–59c. 57

CHAPTER 4

REAL EVIDENCE

4.1

Introduction

4.1.1 Overview This chapter deals with evidence which the tribunal of fact can experience for itself. This is often referred to as ‘real’ evidence, although this term is also sometimes restricted to physical objects. In this work, however, real evidence is used to refer to any form of evidence which can be presented in such manner as will allow the tribunal of fact to perceive the evidence for itself, rather than being forced to rely on the reported observations of witnesses. The main classes of real evidence discussed in this chapter are: • physical objects; • audio and video recordings; • photographs; • maps, models, charts and diagrams; and • views, demonstrations, experiments and inspections.

4.1.2 General principles A proper foundation must always be laid before real evidence can be admitted. There are two main foundations: first, the evidence must be relevant; and secondly, there must be a basis for finding that the evidence is what it purports, or is alleged, to be. As the evidence cannot speak for itself, the relevance and authenticity of the evidence must be established by means of witnesses who have personal knowledge of facts such as how the evidence was obtained or brought into being. Without such supporting testimony, the evidence will be inadmissible. With two exceptions, the uniform evidence legislation leaves the common law relating to real evidence untouched: see s 52. The first exception arises from the extensive definition given to the word ‘document’: of the real evidence discussed in this chapter, audio and video recordings, and maps, plans, drawings and photographs are all ‘documents’. The significance of this is that secondary evidence of these can be given in the manner permitted by the uniform evidence legislation and discussed in the previous chapter. The second exception is for views and demonstrations, in relation to which the uniform evidence legislation contains specific provisions, discussed below.

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Principles of Evidence

4.2

Physical objects

The existence, condition, appearance or value of a physical object may be a fact in issue in the proceedings, or may be relevant to a fact in issue. For example, where the accused is charged with theft, the prosecution may wish to tender the allegedly stolen goods in evidence. Where the purchaser of goods claims that the goods were of unmerchantable quality, or defective, or different in description from that which the vendor had undertaken to supply, the purchaser may tender the goods in order to allow the court to form its own conclusions. Where a dog is alleged to be vicious, the dog may be brought into court so that the court can witness the dog’s behaviour for itself.1 In all these examples, a proper evidential foundation will need to be laid. This foundation will need to establish both the relevance of the object and its authenticity; that is, that the object is what it purports or is alleged to be. In the defective goods example, for instance, evidence would need to be led establishing that the object presented in court was indeed the same as that which the vendor had sold to the purchaser. In the stolen goods example, it would need to be shown that the goods found in the possession of the accused were the same as those which had been stolen; this evidence could obviously be given by the owner of the goods. In some cases proof of authenticity will require proof of what is referred to as a ‘chain of custody’. This is designed to establish that an object taken from or found at one location is the same as that which is being tendered in court. This is achieved by showing that there has been no opportunity for any interference with the object or for its replacement with a substitute. The degree to which such foundational matters must be proved is discussed in Chapter 5: Relevance, under the heading ‘Provisional relevance’. In some cases, the relevance of the object will not be as obvious as in the defective goods example. In these cases, supporting testimony will be necessary to establish both the authenticity and the relevance of the object. In a murder trial, for example, the prosecution might wish to tender in evidence a blood-stained item of clothing. In order for the item of clothing to be relevant it would have to be connected both to the accused and to the crime: otherwise it is simply an item of clothing with stains on it. The item of clothing could be connected to the accused in any number of ways, for example: • a police officer might testify that the item of clothing had been found at the accused’s home; • someone who knew the accused might testify that the accused owned such an item of clothing; or • the accused might have admitted that the item of clothing belonged to him or her. __________________________________________________________________________________________________________________________________________

1

See Line v Taylor (1862) 3 F&F 731; 176 ER 335. 60

Real Evidence The item of clothing could also be connected to the crime in several different ways, for example: • a witness might testify that the person they had seen attacking the deceased had been wearing such an item of clothing; • a police officer might testify that the item of clothing had been found at the scene of the crime; or • an expert might testify that a DNA sample taken from the blood stains on the clothing matched a DNA sample taken from the deceased. When a proper foundation is laid, a physical object can be admitted as an exhibit, inspected by the court, and – where there is a jury – taken into the jury room during deliberations.

4.3

Audio and video recordings

In some jurisdictions, including those in which the uniform evidence legislation applies, audio and video recordings (including film) fall within the statutory definition of ‘document’. They can also be classified as a form of real evidence, however, because the tribunal of fact is able to listen to or watch the recordings, and form its own impressions of what it is that the recordings record. Indeed, as the High Court pointed out in Butera v DPP (1987), it is not the recording itself which is evidence, but that which it records; the normal way of receiving such evidence, then, is to play the recording in court so that the sounds or images it records can be heard or seen by the tribunal of fact.

4.3.1 Relevance and authenticity Of course, this can only be done if the contents of the recording are relevant and do not breach any of the exclusionary rules of evidence. A recording might, for example, be relevant because it actually records the events which have given rise to the proceedings, as where a security camera has recorded a robbery; in such a case the tribunal of fact might be invited to identify the accused as the perpetrator of the offence based on their own perceptions of the perpetrator. The accused might also have been recorded conspiring to commit a crime, or making admissions about it (including making admissions during official police questioning). Similarly, in civil proceedings the plaintiff in a personal injury case might have been recorded moving in a manner inconsistent with his or her alleged injuries. Where spoken words are recorded, the contents of the recording may obviously be hearsay, and will only be admissible if an exception to the hearsay rule is available. Before a recording can be played in court it must also be authenticated. This may require supporting testimony from a witness with personal knowledge of the circumstances in which the recording was made to the effect that the machinery used to make the recording was working at the time the 61

Principles of Evidence recording was made (s 146 of the uniform evidence legislation facilitates proof of this), and that the recording has not been tampered with. In some cases, it may also be necessary to lead evidence identifying the scenes or persons recorded in a video recording, or the voices recorded in an audio recording. In the absence of such identifying evidence, the sounds and images recorded may lack any connection to the facts in issue.

4.3.2 Secondary evidence Questions have also arisen as to the admissibility of secondary evidence of the contents of recordings, such as a transcript. These issues are analogous to those which arise in relation to secondary evidence of the contents of documents. Although the leading common law case of Butera v DPP (1987) dealt specifically with tape recordings, the same principles presumably also apply to the sound aspect of a combined audio and video recording, such as that produced by a video camera. Butera v DPP (1987) stands for several propositions. First, because it is the contents of a recording – rather than the recording itself – which is the admissible evidence, there can be no objection to the use of a properly authenticated copy of the original recording as a means of reproducing the sounds or images recorded. Secondly, a transcript of a recording is not admissible as secondary evidence of the recording. Indeed where secondary evidence is necessary – as where the tape has been lost – the best form of secondary evidence, the court thought, was the evidence of a person who had listened to or watched the recording, and could describe its contents to the tribunal of fact. Thirdly, where a recording is indistinct, however, it might be permissible to provide the jury with a transcript, not as secondary evidence of the contents of the recording, but as an aid to listening, something which would help them to understand what they were hearing. Finally, where a recording requires translation from a foreign language, evidence of the translation should ordinarily be given orally, although in some circumstances it may also be helpful that the jury be provided with a written copy of the translation. The uniform evidence legislation takes a more flexible approach, with s 48(1)(c) providing that where a ‘document in question’ is ‘an article or thing by which words are recorded in such a way as to be capable of being reproduced as sound’, then the contents of the ‘document’ may be proved by ‘tendering a document that is or purports to be transcript of the words’. In other words, transcripts are a permissible form of secondary evidence of the contents of a sound recording. As with the common law principles, s 48(1)(c) also presumably applies to the sound aspect of a combined audio and video recording, such as that produced by a video camera.

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Real Evidence

4.4

Photographs

The principles which apply to audio and video recordings (including film), also apply to photographs. Photographs are admissible in so far as they record relevant and admissible visual information. They may also require authentication of the type discussed above in relation to recordings; and photographs also fall within the uniform evidence legislation definition of ‘documents’, so that secondary evidence of the photograph may be permissible in accordance with the rules discussed in the previous chapter. In criminal proceedings, photographs of the victim of the alleged crime might be admitted in order to show the extent of the victim’s injuries, or to enable an expert to point out aspect of the injuries which they consider to be indicative of the way in which the injuries were inflicted. In R v Ames (1964), for example, photographs of the victim were admitted in evidence so that the jury could decide whether the direction of the flow of blood was more consistent with murder or suicide. Photographs of injuries to the accused might be adduced by the prosecution on the basis that the injuries were consistent with the accused having committed the offence – as in R v Ireland (1970) – or by the defence on the basis that the injuries were consistent with the accused having been assaulted by the police while in custody. Photographs of a crime scene might also be admitted if the photographs contained information which would assist the tribunal of fact to decide the issues before it. Gruesome photographs could, however, be prone to exclusion on the grounds that they are more prejudicial than probative: see Chapter 18: Discretions to Exclude Evidence.

4.5

Maps, models, charts and diagrams

Oral testimony will often be more readily comprehensible if supplemented by some sort of visual aid. A chart or diagram might be used to explain a complicated series of transactions or a complex company structure. A map or model of a place where a relevant event occurred might be used so as to enable a witness to give accurate and comprehensible evidence about exactly what happened. In such cases, the map, model, chart or diagram is really just a visual aid to, or summary of, the oral evidence given by the witness. Although it has no value independent of that evidence, its status as an exhibit will usually mean that it can be taken into the jury room for examination by the jury during the course of its deliberations. It is this fact which qualifies (albeit perhaps only marginally) the visual aid or summary as ‘real’ evidence. The visual aid or summary will be admissible on two conditions. First, that it is accurate. In the case of a map or model, evidence will usually be necessary to the effect that the map or model is an accurate depiction of the place in question; in the case of a chart or diagram designed to summarise the effect of oral evidence, the witness will need to testify that the chart or diagram does

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Principles of Evidence indeed accurately summarise the effect of his or her evidence. The second condition is that the admission of the visual aid or summary must be likely to assist the tribunal of fact to decide the issues before it. As the High Court commented in Smith v R (1970), a chart prepared by an expert witness: ... was nothing but a convenient record of a series of highly complicated cheque transactions which had been proved by other evidence, and was likely to be of considerable assistance to the jury. Had they all been accountants, doubtless, after considerable time, they could have prepared such a chart for themselves. The use of such charts and other time-saving devices in complicated trials of this kind is a usual and desirable procedure and is encouraged by the courts.2

Similarly, s 29(4) of the uniform evidence legislation provides that: Evidence may be given in the form of charts, summaries or other explanatory material if it appears to the court that the material would be likely to aid its comprehension of other evidence that has been given or is to be given.

4.6

Views, demonstrations, experiments and inspections

4.6.1 Views and inspections Sometimes the tribunal of fact will be assisted in its understanding of the evidence presented in court if it is able to see for itself the place where a relevant event occurred, or inspect an object which can not be brought into court (because, for example, it is immovable, or very large). At common law this is referred to as a view; under the uniform evidence legislation, it is referred to as an inspection; the word ‘view’ is instead used as a blanket term encompassing all the kinds of evidence discussed in this section. For convenience, the uniform evidence legislation usage is employed below except where the context indicates otherwise; in other words, the word ‘view’ is used as a blanket term encompassing demonstrations, experiments and inspections; and the word ‘inspection’ is used to refer to that which the common law refers to as a view.

4.6.2 Demonstrations An inspection must be distinguished from a demonstration, where a witness demonstrates something which they have referred to in their evidence. A demonstration may be performed in conjunction with a view or inspection; for example, a demonstration of the working of an item of machinery which was involved in a workplace accident; or a demonstration of the extent to which the noise from bands playing in one part of a hall might interfere with the use of another part of the hall.3 A demonstration may also be performed in __________________________________________________________________________________________________________________________________________

2 3

Smith v R (1970) 121 CLR 572, 577. See Scott v Numurkah Corp (1954) 91 CLR 300. 64

Real Evidence court; for example, an expert demonstrating the firing mechanism of a gun allegedly involved in the commission of a crime. The word ‘demonstration’ is also used to refer to a reconstruction of a relevant event; for example, the reconstruction of a striptease act in relation to which charges have arisen.4

4.6.3 Experiments An experiment is a procedure which is carried out in order to test a hypothesis. An experiment may be conducted before the tribunal of fact; or its results may be reported to the tribunal of fact by, for example, an expert witness. At both common law and under the uniform evidence legislation, the court is forbidden from performing its own experiments during the course of its deliberations. In Kozul v R (1981), for example, one of the issues was whether a gun might have accidentally discharged as a result of a blow to the hand of the person holding it. The trial judge invited the jury to experiment with the gun in order to test this hypothesis. The High Court ruled that this was impermissible. Section 53(4) of the uniform evidence legislation confirms this approach, providing that the court is ‘not to conduct an experiment in the course of its deliberations’. This does not prevent the jury from handling the exhibits; in Kozul, for example, Gibbs CJ commented that it would have been perfectly proper for the jury ‘to examine the revolver, and to feel for themselves how much pressure was required to discharge it’. 5 This is permissible because it does not involve the testing of a hypothesis. Again, s 54(5) confirms that the inspection of exhibits by the court is not affected by the prohibition on the conduct of experiments.

4.6.4 The evidential status of views At common law, demonstrations and experiments are considered to be evidence; a view is not. A view is instead regarded as being ‘for the purpose of enabling the tribunal to understand the questions that are being raised, to follow the evidence and to apply it, but not to put the result of the view in place of evidence’.6 Under the uniform evidence legislation, on the other hand, demonstrations, experiments and inspections are all considered to be evidence, meaning that the court ‘may draw any reasonable inference from what it sees, hears or otherwise notices’: see s 54.

4.6.5 Ordering a view Although the initiative lies with the parties to decide whether or not their interests would be advanced by the conduct of a view (in the broad uniform __________________________________________________________________________________________________________________________________________

4 5 6

See R v Quinn and Bloom [1962] 2 QB 245. Kozul v R (1981) 147 CLR 221, 228. Scott v Numurkah Corp (1954) 91 CLR 300, 303, quoting from the judgment of Davidson J in Unsted v Unsted (1947) 47 SR (NSW) 495. 65

Principles of Evidence evidence legislation sense of the word), the question is ultimately one for the discretion of the trial judge. In deciding whether to order that a view be held, there are two main areas of concern for the trial judge. The first is to ensure that all parties are accorded procedural fairness. The second is to ensure that the view will assist the tribunal of fact, rather than mislead it. The former aim requires that all the parties be given the opportunity of attending the view; the latter requires that the conditions under which the view is held approximate, as closely as possible, those which prevailed at the time at which the relevant events occurred. Section 53(2) of the uniform evidence legislation thus provides that a view should not be ordered unless both parties are given reasonable opportunity to attend; similar considerations apply at common law: see Scott v Numurkah Corp (1954). Section 53(3) then sets out the factors which a court should take into account in deciding whether or not to order a view; these factors are again similar to those which have been identified at common law: see, for example, Scott v Numurkah Corp (1954) and R v Alexander (1979). The factors in s 53(3) are as follows: (a) whether the parties will be present; (b) whether the demonstration, experiment or inspection will, in the court’s opinion, assist the court in resolving issues of fact or understanding the evidence; (c) the danger that the demonstration, experiment or inspection might be unfairly prejudicial, might be misleading or confusing or might cause or result in undue waste of time; (d) in the case of a demonstration – the extent to which the demonstration will properly reproduce the conduct or event to be demonstrated; (e) in the case of an inspection – the extent to which the place or thing to be inspected has materially altered.

4.7

Summary

As a matter of general principle, real evidence is admissible if: • the evidence is relevant; • its authenticity can be established; and • the evidence does not fall foul of any exclusionary rule. In relation to some specific categories of real evidence: • visual aids to the understanding of oral evidence, such as maps and models, will be admissible if the maps or models are accurate and are likely to assist the tribunal of fact; • visual summaries of oral evidence, such as charts and diagrams, will be admissible if they accurately summarise the oral evidence and are likely to assist the tribunal of fact;

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Real Evidence • demonstrations and inspections may be ordered, at the discretion of the trial judge, where this is likely to assist the tribunal of fact and procedural fairness to the parties can be ensured; and • experiments may be performed by witnesses if the court is of the opinion that this will assist the tribunal of fact, but the tribunal of fact is not itself permitted to conduct experiments during the course of its deliberations.

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PART II ADMISSIBILITY OF EVIDENCE

OVERVIEW OF PART II This part deals with those rules of evidence which govern the admissibility of evidence; ie, the question of whether an item of evidence can be used for the purpose for which it is led. Given the number of exclusionary rules which have been developed at common law, this part actually covers the bulk of the law of evidence. Its structure essentially follows that of Chapter 3 of the uniform evidence legislation, the major departure from that structure being that in this work two chapters have been devoted to each of hearsay, admissions, and tendency and coincidence evidence, whereas under the uniform evidence legislation each is dealt with in just one part. It contains the following chapters: • Relevance • Hearsay: The Exclusionary Rule • Hearsay: Exceptions to the Rule • Opinion Evidence • Admissions • Admissions and Confessions by the Accused • Judgments and Convictions • Tendency and Coincidence Evidence • Tendency and Coincidence Evidence: The Accused • Credibility Evidence • The Character and Credibility of the Accused • Identification Evidence • Privilege and Immunity • Discretions to Exclude Evidence The following flow chart provides a model for approaching questions of admissibility. It is based on one contained in the introductory notes to Chapter 3 of the uniform evidence legislation. It is highly unlikely, of course, that in respect of a particular item of evidence it will be necessary to consider every one of the exclusionary rules; usually it is fairly obvious which rule or rules require consideration. Nevertheless, the flow chart provides a useful reminder of the number of exclusionary rules which potentially stand between the discovery of an item of evidence and its use at trial.

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Principles of Evidence

Admissibility of evidence No

Is the evidence relevant? See Chapter 5 Yes Is the evidence hearsay? See Chapter 6 No

Is the Yes evidence admissible No under an exception to the hearsay rule? See Chapter 7 Yes

Is the Yes evidence admissible No Is the evidence an opinion? as opinion See Chapter 8 evidence? See Chapter 8 No Yes

Is the evidence an admission by a party? See Chapter 9 No

Is the Yes evidence admissible No as an admission? See Chapters 9 and 10

EVIDENCE IS NOT ADMISSIBLE

Yes

Is the evidence admissible No Is the evidence a judgment Yes as a judgment or or conviction? conviction? See Chapter 11 See Chapter 11 No

THE

Yes

Is the evidence admissible No Is the evidence tendency or Yes as tendency or coincidence evidence? coincidence evidence? See Chapters 12 and 13 See Chapters 12 and 13 No Yes 72

Relevance

Is the evidence credibility evidence? See Chapter 14 No

Does the evidence relate to the character or credibility of the accused? See Chapter 15 No

Yes

Is the evidence admissible No as credibility evidence? See Chapter 14

Yes

Yes

Is the evidence admissible No as character or credibility evidence? See Chapter 15

Yes THE

Is the evidence identification evidence? See Chapter 16

No

Yes

Is the evidence admissible No as identification evidence? See Chapter 16

NOT ADMISSIBLE

Yes

No

No

IS

Yes

Is the evidence privileged or immune from disclosure? See Chapter 17

Is the evidence subject to discretionary exclusion? See Chapter 18

EVIDENCE

Yes

Should the discretion be exercised? See Chapter 18

No

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Yes

Principles of Evidence

No

THE EVIDENCE IS ADMISSIBLE

Does the evidence fall within a recognised category of unreliable evidence? See Chapter 21

Yes

No

A judicial warning need not usually be given

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A judicial warning should usually be given

CHAPTER 5

RELEVANCE

5.1

Introduction

The concept of relevance is foundational to the whole of the law of evidence. In this chapter, several different aspects of the concept of relevance are explored, including: • its role as the fundamental test for the admissibility of evidence; • the different ways in which evidence can be relevant; • the way in which the requirement of relevance should be applied; • the idea that the requirement of relevance imposes a threshold of sufficiency; and • the concept of ‘provisional’ relevance.

5.2

The fundamental rule of evidence

The requirement of relevance is the fundamental rule of the law of evidence. Evidence that is relevant is admissible, unless excluded by the operation of one of the exclusionary rules of evidence. Evidence that is irrelevant is inadmissible, without there being any need to consider any of the exclusionary rules. The common law position is reflected in s 56 of the uniform evidence legislation, which provides that: (1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding. (2) Evidence that is not relevant in the proceeding is not admissible.

The first question to ask in respect of every item of proposed evidence, therefore, is this: is the evidence relevant?

5.2.1 Relevant to what? It is impossible to say whether something is relevant without specifying what it must be relevant to. In litigation, it is the ‘facts in issue’ to which evidence must be relevant. In criminal proceedings the facts in issue are the elements of the crime with which the accused is charged. In civil cases the facts in issue are the elements of the action being brought by the plaintiff. In other words, the facts in issue are the facts which must be proven by the prosecutor or plaintiff if they are to succeed at trial. These facts are determined by the substantive law, not the law of evidence. If the accused or the defendant raises a defence other than a mere denial of the facts alleged by the prosecutor or plaintiff, then 75

Principles of Evidence the elements of that defence are also facts in issue at the trial. Again, these facts are determined by the substantive law, not the law of evidence. One must distinguish the facts in issue from the facts used to prove or disprove the facts in issue. In a rape trial, for example, the complainant may testify that she struggled and repeatedly shouted ‘no’ at the accused. These are not facts in issue, but facts which are being used to prove what is the fact in issue: whether or not the complainant consented to intercourse. Similarly, if the accused raises an alibi defence, this does not make the presence of the accused at the time and place claimed a fact in issue. An alibi defence is merely a particular means of denying the prosecution case.

5.2.2 Definition of relevance Relevance is an ordinary, non-legal, concept. Put simply, something is relevant to the determination of an issue (or argument, or question) if it helps us to decide that issue in a rational manner. This idea is put into more formal language in the following definitions of relevance: The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.1 ‘Relevant evidence’ means evidence having the tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.2 Any two facts to which it [the word relevant] is applied are so related to each other that according to the common course of events one either taken by itself or in conjunction with other facts proves or renders probable the past, present or future existence or non-existence of the other.3

Although expressed in slightly different language, these definitions are essentially the same, and the same results should be achieved whichever definition is applied.

5.3

The different ways in which evidence can be relevant

In Chapter 1 it was suggested that there are two dimensions according to which evidence can be divided. The first, which was discussed in Chapter 1, is according to the source of the evidence. The second, which will be discussed now, depends on the relationship that the evidence bears to the facts in issue. On this dimension, three categories can be suggested: direct evidence, circumstantial evidence, and credibility evidence. Both direct and circumstantial evidence have a ‘direct’ connection to the facts in issue and all evidence which __________________________________________________________________________________________________________________________________________

1 2 3

Uniform evidence legislation, s 55(1). United States Federal Rules of Evidence, Rule 401(1). Stephen, J, A Digest of the Law of Evidence, 8th edn, 1907, London: Macmillan, Art 1. 76

Relevance is so connected to the facts in issue must be either direct or circumstantial. The distinction between direct and circumstantial evidence lies in the nature of their connection to the facts in issue. The differences are discussed below. Credibility evidence, on the other hand, has no direct bearing on the facts in issue, bearing instead on the credibility of evidence which does have such a bearing. Despite its more attenuated connection to the facts in issue, credibility evidence is accepted as being relevant on the basis that anything which affects the probability that a witness is telling the truth affects the probability of the existence of the facts to which they are testifying. The relevance of credibility evidence is therefore recognised by s 55(2) of the uniform evidence legislation, which provides that ‘evidence is not taken to be irrelevant only because it relates only to: (a) the credibility of a witness’. The relevance and admissibility of credibility evidence is discussed in detail in Chapter 14: Credibility Evidence.

5.3.1 Direct evidence With direct evidence, the evidence, if accepted, establishes one or more of the facts in issue without the need for any further inference. Direct evidence given by a witness involves the witness testifying that he or she perceived one or more of the facts in issue. If the evidence of the witness is accepted by the tribunal of fact, then it establishes the existence or non-existence of the particular fact in issue. In a rape trial, for example, the complainant might testify that she did not consent. If she is believed, then this establishes one of the elements of the crime. Similarly, in a murder trial, a witness might testify that she saw the accused shoot the deceased in the chest, and that she then saw the deceased fall to the ground dead. If the tribunal of fact believes the witness, then her evidence establishes one of the facts in issue at the trial: that the accused caused the death of the deceased. In both cases, the witness claims to have actually perceived the events which are at issue in the proceedings; if the witness does not make this claim, then they are unable to give direct evidence. If a witness does give direct evidence, then the only task for the tribunal of fact is to decide whether or not the witness should be believed. Real evidence may also be direct, as where the tribunal of fact is shown video footage of the occurrence of the event in question. In such a case, the task of the tribunal of fact will be to decide what it is that the footage shows.

5.3.2 Circumstantial evidence In many cases, no direct evidence will be available. No one, other than the accused, may have perceived the events in question, or those who did may be dead or otherwise unavailable as witnesses. In such cases, the courts will inevitably have to rely on circumstantial evidence. Even where direct evidence 77

Principles of Evidence is available, it will often be supplemented by circumstantial evidence. Circumstantial evidence, like direct evidence, is, in general, adduced by means of witnesses testifying about their perceptions. Where it differs from direct evidence is that circumstantial evidence, no matter how credible its source, is always inconclusive. This is because a witness whose evidence is circumstantial will not claim to have perceived the events in question, but only to have perceived facts which render more or less probable the occurrence of those events as alleged. In a criminal case, for example, a witness might testify that he saw the accused leaving the deceased’s home shortly before the deceased was found there dead. The circumstance is relevant because it suggests, at the very least, that the accused falls into the limited class of those who had the opportunity to commit the murder. The tribunal of fact’s task is more complex when a case is based on circumstantial evidence. The party leading the evidence first asks the tribunal of fact to believe the witness, and so find that the circumstance attested to does exist. The party leading the evidence then asks the tribunal of fact to infer from that circumstance that one or more of the facts in issue also exists. The party against whom the evidence is led can either deny that the circumstance exists, or argue that it should not be used as the basis for the inference sought. In the example above, for example, the accused could deny the circumstance by claiming that he had not visited the deceased that night and that the witness must be mistaken. Or the accused could admit the circumstance but provide an innocent explanation for it, such as that the deceased was alive when he left her, or already dead when he arrived. The first task for the jury would be to decide whether or not the circumstance exists, that is, whether or not the accused was at the deceased’s house shortly before the deceased was found there dead. This would obviously be an easy task if the defence admitted it. The second task for the jury would be have to decide whether or not to draw the inference sought: that the accused was the murderer. Each piece of circumstantial evidence on its own may establish little; it is the cumulative effect of the evidence which may eventually persuade the tribunal of fact to draw the inference sought. In the above example, evidence of opportunity alone might do to little to persuade the jury of the accused’s guilt. But if the prosecution was able to lead additional circumstantial evidence – such as that the accused had a motive to murder the deceased, owned a weapon similar to that with which the deceased was killed, that this weapon had blood stains on it, had traces of blood on his clothing which matched that of the deceased and so on – then it might well be possible to satisfy the jury of his guilt beyond reasonable doubt.

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Relevance

5.3.3 An illustration of the difference The distinction between direct and circumstantial evidence can be illustrated by the case of McCarthy and Ryan (1993). In that case a 17-year-old girl had advertised in a local newspaper seeking work as a baby-sitter. She had received two telephone calls from a male person who discussed baby-sitting work with her. Soon after she was rung at 7 am one day by the same man. He asked whether she would do some baby-sitting for him that day. She agreed. A man and woman arrived shortly afterwards in a black panel van. The woman gave a false name and address to the girl’s grandmother, with whom she lived. When the man spoke the girl recognised his voice as that of the caller. She was asked to sit in the back of the van because, she was told, the baby was in the front. The van was driven for some 20 minutes. When it stopped, the man came around to the back of the van and, after threatening the girl with a knife, raped her. After the rape, the man offered his grey sloppy joe to the girl, who put it on. Underneath it, the man was wearing a singlet with a marijuana leaf design. The male accused was charged with the rape of the girl; the female accused with being an accessory to offence. The only issue was one of identity. The girl was able to identify the male accused as the man who had raped her. This was direct evidence of guilt: if her testimony was accepted, then it proved the guilt of the accused beyond reasonable doubt. But the prosecution case was also supported by the following circumstantial evidence: • the girl identified as the knife with which she had been threatened a knife which had been found in the premises where the accused lived; • the sloppy joe given to the girl was identified by a former girlfriend of the male accused as his, and she was able to point to a bleach mark made by her when cleaning it; • a number of witnesses said that the male accused frequently wore a sloppy joe and singlet identical to those worn by the male offender; and a singlet with a marijuana leaf design was actually found amongst the bedding in which the accused slept; • the male offender had a beard and moustache, as did the male accused at the time of the offence; • a copy of the local newspaper containing the girl’s baby-sitting advertisement was found in the living room of the premises in which the accused lived; • a wallet found in the accused’s bedroom contained a piece of paper partially recording the girl’s address (the wallet also contained the male accused’s driving licence); • the girl’s description of the vehicle matched that of a vehicle in which the two accused had driven home earlier on the morning of the rape.

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Principles of Evidence Unlike the girl’s direct identification of the accused as the offender, none of this evidence is conclusive. Each individual item of evidence is capable of innocent explanation. Many people might own a singlet with a marijuana leaf design; but the fact that the male accused shared this attribute with the offender places him in a limited class of people who might be the offender. Similarly, there might be several reasons why the knife used in the offence was found on premises occupied by the accused: one of the other occupants (or even the accused) might have found it on the street and brought it home; or the police might have planted it there; or one of the other occupants might even have been the rapist. But one possible explanation for the finding of the knife in the accused’s home is that the accused was the rapist. So while the finding of the knife is not conclusive, it again increases the probability that the accused is guilty. A similar analysis can be applied to each of the other pieces of circumstantial evidence.

5.4

Applying the test of relevance

5.4.1 A matter of common sense Applying the test of relevance is largely a matter of common sense and experience. For that reason there is always room for disagreement about whether or not a particular item of proposed evidence is relevant to the facts in issue. Decided cases merely provide examples of the kinds of things which judges have been prepared to hold relevant in the specific cases before them. In Wilson v R (1970), for example, the accused was charged with the murder of his wife, who died from gunshot wounds to the head. The accused claimed that the shooting was accidental. The prosecution wished to lead evidence about various extremely bitter arguments between the accused and the deceased. Just as evidence that the relationship between deceased and accused was a loving one would tend to support the defence version of events – on the basis that a loving husband is unlikely to shoot his wife deliberately – so this evidence increased the probability that the shooting was deliberate. As Menzies J commented: Any jury called upon to decide whether they were convinced beyond reasonable doubt that the applicant killed his wife would require to know what was the relationship between the deceased and the accused. Were they an ordinary married couple with a good relationship despite differences and disagreements, or was their relationship one of enmity and distrust? It seems to me that nothing spoke more eloquently of the bitter relationship between them than that the wife, in the course of a quarrel, should charge her husband with the desire to kill her. The evidence is admissible not because the wife’s statement was causally connected with her death but to assist the jury in deciding whether the wife was murdered in cold blood or was the victim of mischance.4 __________________________________________________________________________________________________________________________________________

4

Wilson v R (1970) 44 ALJR 221, 224. 80

Relevance

5.4.2 Spelling out the connections In deciding whether or not a particular item of evidence is relevant it is necessary to spell out – as Menzies J did in Wilson’s case – the way in which the evidence connects to the facts in issue. Doing this is advantageous in any case, because if we can explain the process of reasoning which connects the evidence and the facts in issue, then this will make it easier to apply those exclusionary rules – in particular, the hearsay rule and the tendency and coincidence rules – where the admissibility of the evidence turns upon the way in which it is being used. In particular, any assumptions or generalisations about human behaviour upon which the argument for relevance depends should be exposed to scrutiny. Only if the assumption seems justified, or the generalisation true to our own experience of life, should we be prepared to hold the evidence to be relevant. If, for example, one wishes to argue in a rape case that the complainant’s sexual history is relevant to the issue of consent, one should be prepared to spell out precisely how the evidence renders more probable the fact of consent. If the argument merely rests on some untenable proposition such as that ‘a woman who has consented to intercourse with someone outside marriage in the past is more likely to have consented to intercourse outside marriage on the occasion in question’, then it is hard to see how it could possibly satisfy the test of relevance. This sexual history example also highlights the extent to which the determination of questions of relevance can depend upon an individual judge’s social values or beliefs about human behaviour.

5.4.3 The syllogism One way of exposing the assumption or generalisation upon which the argument for relevance depends is to put the argument in the form of a syllogism. A syllogism is a form of logical reasoning, whereby two propositions, referred to as the major and minor premise respectively, lead to a third, referred to as the conclusion. For example, a major premise might be ‘all birds can fly’. A minor premise might be ‘penguins are birds’. These two premises lead to an inevitable conclusion: ‘penguins can fly’. Of course the mere fact that the conclusion follows inevitably from the premises does not make the conclusion true. The conclusion will only be true if both of the premises are true. In the above example, the major premise is obviously false. This points to the weakness of the syllogism as a tool of reasoning: the conclusion adds nothing to the knowledge we already have. The benefit of the syllogism, however, is that it forces us to articulate a major premise and through this to consider why it is that the evidence might be relevant. When used to test the relevance of evidence, the major premise will be a generalisation based on common sense or experience. The minor premise will

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Principles of Evidence be a statement based on the evidence in the case. In Wilson’s case, for example, the evidence is that the relationship between the accused and the deceased was one of bitter antagonism. We now need to find a major premise which, when coupled with the minor premise, will demonstrate the relevance of the evidence. The first major premise we might try could be that ‘husbands who hate their wives murder them’. We would then add the minor premise: ‘the accused hated his wife’. The conclusion that ‘the accused murdered his wife’ is then inevitable. But the major premise in this example is flawed: many husbands hate their wives without murdering them. So we try again. A more acceptable major premise might be that ‘husbands who hate their wives are more likely to murder them than husbands who do not’. The minor premise – ‘the accused hated his wife’ – remains the same. But the conclusion we now draw merely places the accused in a class of persons – ‘husbands who hate their wives’ – who are more likely to be guilty than those outside the class. Nevertheless, placing the accused in that class of persons where incidence of guilt is higher, does increase the probability that the shooting was deliberate.

5.5

A threshold of sufficiency

5.5.1 ‘Legal’ relevance In theory something is relevant, and therefore admissible, if it affects – no matter how minimally – the probability of the existence or non-existence of a fact in issue. In practice, the courts are more demanding. Thus commentators often distinguish between what they call, respectively, logical relevance and legal relevance. This distinction relies on judicial statements to the effect that a particular piece of evidence was insufficiently relevant to be admitted. In R v Stephenson (1976), for example, the Victorian Supreme Court said that: Although logic is the test of relevance, not all evidence which is logically relevant is legally admissible. The logical connection between a fact and the issue to be determined may be so slight that the fact is treated as too remote and evidence of it is inadmissible. In some cases, such evidence is described as being irrelevant, an expression which must be taken to indicate that its weight is so minimal that it does not serve to add or detract from the probability of the principal issue being established. Such evidence may be more correctly described as insufficiently relevant or too remotely relevant.5

Thus, legal relevance is said to include a requirement of sufficiency. The justification for this is simple: if absolutely every piece of even slightly relevant evidence were admitted, then trials might never end. As Rolfe B put it in Attorney General v Hitchcock (1847): __________________________________________________________________________________________________________________________________________

5

R v Stephenson [1976] VR 376, 380–81.

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Relevance If we lived for a thousand years instead of about 60 or 70, and every case were of sufficient importance, it might be possible, and perhaps proper ... to raise every possible inquiry as to the truth of the statements made. But I do not see how that could be; in fact, mankind finds it to be impossible.6

5.5.2 A discretionary approach It is, however, difficult to find judicial guidance as to what degree of logical relevance is required in order for a particular piece of evidence to possess ‘legal’ relevance. Apart from probative value, judges also probably take into account the following matters: • how the evidence fits in with the other evidence in the case; • whether the evidence is merely cumulative; • whether presentation of the evidence will be unduly time-consuming; • whether the evidence will complicate the case or distract, confuse or mislead the jurors; • whether the evidence provides the basis for a proper inference as opposed to mere conjecture or speculation. Whether the above matters should be concealed within a concept such as ‘legal relevance’ is open to argument. A better approach might be to say that all evidence that is logically relevant is admissible, subject to the judge having a discretion to exclude evidence on grounds of remoteness or insufficiency. The discretionary nature of the decision was recognised by Fisher J of the New Zealand High Court in R v Wilson (1991), when he said: Once it [relevance] is regarded as a matter of degree, competing policy considerations can be taken into account. These include the desirability of shortening trials, avoiding emotive distractions of marginal significance, protecting the reputations of those not represented before the courts and respecting the feelings of a deceased’s family. None of these matters would be determinative if the evidence in question were of significant probative value. But if it is not, the proposed evidence can be excluded on the ground of ‘irrelevance’ or, as I would prefer to describe it, ‘remoteness’.7

This approach is also reflected in the uniform evidence legislation, with s 135 providing that: The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party; or (b) be misleading or confusing; or (c) cause or result in undue waste or time. __________________________________________________________________________________________________________________________________________

6 7

Attorney General v Hitchcock (1847) 1 Exch 91, 105; 154 ER 38, 44. R v Wilson [1991] 2 NZLR 707, 711. 83

Principles of Evidence The discretion is discussed in detail in Chapter 18: Discretions to Exclude Evidence.

5.6

Provisional relevance

Sometimes the relevance of a proffered item of evidence will depend upon proof of another fact. Some common examples are: • Facts which are only relevant in combination with other facts: in a murder case, for example, the prosecution might wish to lead evidence of the fact that an item of clothing bearing traces of the deceased’s blood had been found abandoned near the scene of the crime; this fact would only be relevant if there was evidence that the item of clothing belonged to the accused. • Similarly, ‘the relevance in murder proceedings of real evidence, such as the alleged murder weapon, depend[s] upon the acceptance of evidence about the fatal wound being consistent with the use of that weapon’.8 • Copies of relevant originals: ‘where a party wishes to have a copy document or the transcript of a tape recording admitted. Assuming that the original document or tape is relevant, the relevance of the copy or transcripts depend on a preliminary finding that the copy or transcript is what it claims to be.’9 • Machine-produced evidence: ‘the relevance of machine-produced evidence depends upon it being that which the party tendering claims it to be. This will depend in turn on the accuracy and reliability of the devices involved. The relevance of the machine produced evidence is conditional on accepting the reliability/accuracy of the devices.’10 • Acts done in furtherance of an alleged conspiracy: where two or more persons are charged with conspiring to commit an offence, the relevance of such facts obviously depends upon a finding that there was indeed a conspiracy. If the admissibility of such evidence is suspended until there has been satisfactory proof of the facts on which relevance depends this can obviously create inconvenient obstacles to proof. At common law, a fairly strict approach was taken to questions of authenticity, although this approach has been relaxed in many Australian jurisdictions.11 The approach of the uniform evidence legislation to questions of provisional relevance is even more relaxed, with s 57(1) providing that: __________________________________________________________________________________________________________________________________________

8

The Hon Justice Smith, ‘The More Things Change the More They Stay the Same? The Evidence Acts 1995 – an Overview’ (1995) 18 University of New South Wales Law Journal 1, 13. 9 Evidence, ALRC 26, 1985, Vol 1 [646]. 10 Ibid. 11 See, for example, Ligertwood, A, Australian Evidence, 2nd edn, 1993, North Ryde, NSW: Butterworths, pp 346ff. 84

Relevance If the determination of the question whether evidence adduced by a party is relevant depends on the court making another finding (including a finding that the evidence is what the party claims it to be), the court may find that the evidence is relevant: (a) if is reasonably open to make that finding; or (b) subject to further evidence being admitted at a later stage of the proceeding that will make it reasonably open to make that finding.

Paragraph (b) deals with situations like the first example above: in that case, the evidence of the blood on the clothing would be admissible subject to evidence being led later on to establish that the item of clothing belonged to the accused; if no such evidence was led, then the earlier evidence would become retrospectively inadmissible. The same analysis could be applied to the second example. Section 57(1) is supplemented by s 58(1), which provides that: ‘If a question arises as to the relevance of a document or thing, the court may examine it and may draw any reasonable inference from it, including an inference as to its authenticity or identity.’ This would be of assistance in the third and fourth examples above. Part 4.3 of the legislation contains further provisions facilitating proof. The effect of ss 57(1) and 58(1) is that a court may be willing, for example, to admit an alleged copy of a relevant original document purely on the basis of its examination of the alleged copy. The Australian Law Reform Commission suggested, however, that: ‘parties will continue to authenticate key documents with extrinsic evidence. Tactical pressures will cause this.’12 Section 58(2) contains a further, specific, provision which applies in conspiracy cases: Without limiting sub-section (1), if the relevance of evidence of an act done by a person depends on the court making a finding that the person and one or more other persons had, or were acting in furtherance of, a common purpose (whether to effect an unlawful conspiracy or otherwise), the court may use the evidence itself in determining whether the common purpose existed.

What this means is that if the relevance of acts done in furtherance of an alleged conspiracy depends upon a finding that the conspiracy existed, then the existence of the conspiracy may be inferred from the acts themselves. The common law is to the same effect: see Ahern v R (1988).

__________________________________________________________________________________________________________________________________________

12 Evidence, ALRC 26, 1985, Vol 1 [986]. 85

Principles of Evidence

5.7

Summary

At both common law and under the uniform evidence legislation: • the requirement of relevance is the fundamental rule of admissibility: ❍ evidence that is relevant to the facts in issue in a proceeding is, subject to any exclusionary rules and discretions, admissible in that proceeding; and ❍ evidence that is not relevant to the facts in issue in a proceeding is inadmissible in that proceeding; • evidence is relevant if it could, if accepted, affect the probability of the existence of the facts in issue in the proceeding; • evidence can be classified according to the nature of its connection to the facts in issue: ❍ direct evidence is evidence which, if accepted, establishes the existence or non-existence of one or more of the facts in issue in the proceeding; ❍ circumstantial evidence is evidence from which the existence or nonexistence of the facts in issue can be inferred; it is always inconclusive; credibility evidence is evidence which has no direct bearing on the ❍ facts in issue but which is relevant to the credibility of evidence which does have such a bearing; • at common law, the test of relevance is often said to impose some threshold of sufficiency; ie, evidence that is only capable of marginally affecting the probabilities may be excluded on the grounds that it is irrelevant; • under the uniform evidence legislation, such evidence should be considered relevant, but may be excluded by the judge in the exercise of his or her discretion; and • where the relevance of an item of evidence depends upon proof of another fact, the item of evidence is said to be ‘provisionally’ relevant.

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CHAPTER 6

HEARSAY: THE EXCLUSIONARY RULE

6.1

Introduction

6.1.1 Overview The hearsay rule is both the most important and the most difficult rule of evidence. Analysis of evidence in terms of the hearsay rule can be divided into three distinct stages. The first stage of the analysis is the same as that for all evidence, ie, the question of whether the evidence is relevant to the facts in issue at trial. The second stage of the analysis is to determine whether the evidence comes within the scope of the hearsay rule. If so, it is prima facie inadmissible. It is this second stage which is dealt with in this chapter. Because the question of whether evidence is hearsay depends on the way in which the evidence is being used, the second stage of the analysis is made much easier if the reasons why the evidence is relevant were adequately identified in the first stage of the analysis. The third stage of the analysis – which is dealt with in the next chapter – is to ask whether the evidence, though hearsay, is nevertheless admissible, because it comes within the scope of one of the many exceptions to the hearsay rule. This chapter begins with a discussion of the rationale for the hearsay rule, describes the general approach of the common law to hearsay evidence, and identifies the classes of evidence to which the hearsay rule is capable of applying. It then turns to the actual definition of hearsay, both at common law and under the uniform evidence legislation. Finally, it discusses one of the most analytically difficult aspects of hearsay, namely the extension of the hearsay rule at common law to ‘implied assertions’.

6.1.2 Rationale for the hearsay rule Hearsay evidence is considered unreliable because it is difficult for the jury to determine what weight it should be given. This is because with hearsay evidence the witness testifying at trial is not the person who actually perceived the events in question. The witness at trial is merely reporting to the court what he or she heard someone else say about those events (hence the word ‘hear-say’). Imagine, for example, a negligence case arising out of a motor vehicle accident. A witness might testify that he saw the defendant drive through a red light. No doubt the witness will be carefully cross-examined to try and uncover any possible source of doubt or mistake or untruthfulness; and at the

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Principles of Evidence end of this process the tribunal of fact will make an assessment of the credibility of the witness, and in light of that assessment decide whether or not to accept his assertion that the light was red. Imagine instead that the witness testifies that while he did not actually see the defendant drive through a red light, he did hear some unidentified bystander say ‘that car just went through a red light’. The witness can still be cross-examined about whether he really did hear someone say those words; but at the end of the day, all that a favourable assessment of the witness’s credibility will entitle the tribunal of fact to do is to decide that those words were in fact spoken by someone. The tribunal of fact will not be in a position, however, to assess the credibility of the ‘witness’ who really matters: the unidentified bystander. How can the jury decide whether or not to accept the bystander’s assertion that the light was red, when the tribunal of fact has not seen this ‘witness’ testify, and counsel for the defendant has not had the opportunity of probing the bystander’s assertion for possible sources of doubt? The difficulty of determining the weight to be given to out of court assertions is the rationale for the hearsay rule. As Lord Normand said in Teper v R (1952): The truthfulness and accuracy of the person whose words are spoken by another witness cannot be tested by cross-examination and the light which his demeanour would throw on his testimony is lost.1

The lack of cross-examination might leave unexposed any of the following reasons for rejecting an assertion made other than while testifying: • any ambiguity in the assertion; • the possibility that the person making the assertion was lying or insincere; and • the possibility that the person making the assertion was mistaken, either in their initial perceptions of the event in question, or in their memory of those perceptions. Relying on hearsay evidence is analogous, therefore, to reliance on witness statements rather than on witness testimony. It is not until the witness actually testifies that the value of their evidence can be assessed, and it is a common courtroom experience to see a witness whose evidence appeared impressive on paper, crumble under cross-examination. Doubts and uncertainties about the credibility of the witness which were not apparent from the statement itself, may seem so significant that the tribunal of fact ultimately decides to reject the witness’s evidence. When hearsay evidence is admitted, the jury never get to see the ‘witness’ testify, and this obviously makes the task of deciding what weight to give their statement extremely difficult. __________________________________________________________________________________________________________________________________________

1

Teper v R [1952] AC 480, 486. 88

Hearsay: The Exclusionary Rule

6.1.3 General approach of the law It is important to note, then, that the rationale for the hearsay rule is not that hearsay evidence is inherently unreliable or necessarily lacking in weight. The rationale for the rule is instead that the reliability and weight of hearsay evidence is difficult to assess because it cannot be properly tested in court. This rationale suggests two possible approaches to hearsay evidence. The first is to admit hearsay evidence on the grounds that it is relevant, and that the tribunal of fact ought to have access to all relevant information, but to require the judge to give an appropriate warning about the reasons why it might be unsafe to accept assertions not made in court. The second approach is to have a general rule of exclusion, subject to exceptions which admit hearsay evidence either when the circumstances suggest that the evidence is likely to be reliable, or when the evidence is essential. It is this second approach which the common law has adopted. Hearsay evidence is prima facie inadmissible, but numerous exceptions have been created both at common law and by statute, which are designed to admit evidence when either or both of the conditions of reliability and necessity are met. The common law structure of an exclusionary rule subject to numerous exceptions is retained by the uniform evidence legislation; but the uniform evidence legislation also makes significant steps towards the first approach above. It does this by narrowing the definition of hearsay; by dramatically increasing the scope of the exceptions, particularly in civil proceedings; and by requiring that admissible hearsay be subjected to an appropriate judicial warning (see Chapter 21: Corroboration and Judicial Warnings). The net effect of these reforms is to increase dramatically the amount of hearsay evidence which will be admitted in court.

6.1.4 Scope of the hearsay rule The hearsay rule can apply to any statement made other than by a witness while testifying during the trial (whether it does in fact apply depends on the purpose for which the evidence is being used: see below). It can apply both to written statements and to oral statements. It can also apply to non-verbal conduct. It would make no difference, for example, if a dying person identified their assailant by name or by pointing to a photograph of them. The ‘hear-say’ rule can, in other words, be a ‘see-do’ rule. Because the rule can apply to any statement other than one made during the course of the trial, the hearsay rule applies to statements made by a witness other than during the course of their testimony. Prior to testifying, a witness might, for example, have made statements either consistent or inconsistent with his or her testimony at trial. The hearsay rule applies to such statements. Given that the witness can be cross-examined both about their in89

Principles of Evidence court testimony and their prior out of court statements this application of the rule is, of course, irrational. As Judge Learned Hand once pointed out, when the jury decides that the truth is not what the witness says now but what the witness said before, they are still deciding on the basis of what they have seen and heard in court.2 Nevertheless, the use of such statements as evidence of their truth is hearsay, and hearsay to which – at common law – no exception applies. Under the uniform evidence legislation, on the other hand, the prior statements of a witness may be admissible for their truth, by virtue of either s 60, discussed below under the heading ‘Dual relevance’; or by virtue of one of the exceptions to the hearsay rule discussed in the next chapter.

6.1.5 Terminology A variety of terminology has been used in relation to hearsay evidence. The out of court statement being relayed to the court is also often referred to as a ‘declaration’, or as an out of court ‘assertion’ or ‘utterance’; under the uniform evidence legislation, an out of court statement is instead referred to as a ‘previous representation’. The advantage of the word ‘representation’, in comparison to ‘statement’, is that representation is clearly capable of encompassing non-verbal conduct. The person making the out of court statement or representation can be referred to variously as ‘the speaker’, ‘the declarant’, or – under the uniform evidence legislation – as ‘the maker of the representation’. The person relaying the representation to the court is always, however, referred to as ‘the witness’.

6.2

Definition of hearsay

Although the rationale of the hearsay rule is to be found in the difficulty of deciding what weight a statement made out of court should be given, the definition of hearsay has nothing to do with reliability. The circumstances in which a particular statement was made might suggest that the statement is inherently likely to be reliable; or the statement might be so consistent with the other evidence in the case that doubts about its reliability seem unfounded. The reliability of the statement is, however, entirely irrelevant to its classification as hearsay; that depends instead on the purpose for which the statement is being used. The fact that an out of court statement appears to be reliable does not, therefore, mean that the statement is not hearsay.

6.2.1 Common law The classic definition of the hearsay rule was provided by the Privy Council in the case of Subramaniam (1956): __________________________________________________________________________________________________________________________________________

2

Di Carlo v US 6 F 2d 364, 367–88 (1925). 90

Hearsay: The Exclusionary Rule Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.3

The facts of Subramaniam illustrate this distinction perfectly. The accused was captured by security forces during the Malayan Emergency and charged with being in possession of ammunition contrary to the Emergency Regulations, a capital offence. His defence was one of duress: that he had been captured by communist insurgents and was acting under threat of death. To establish his defence he wanted to lead evidence of what the insurgents had said to him. The trial judge held this evidence to be hearsay and inadmissible; without it, the accused obviously had no means of proving his defence and so was convicted and sentenced to death. On appeal, the Privy Council said that the trial judge had got it wrong. The issue was the effect that the making of such threats had on the accused, not whether the threats would truly have been carried out. This meant that the object of the evidence was not to establish the truth of what was contained in the statements, but merely to prove that they had been made. The cogency of the evidence for this purpose depended entirely on the credibility of the accused, and not on the credibility of the insurgents. The passage from Subramaniam highlights the most important feature of the definition of hearsay: whether an out of court statement is hearsay or not depends entirely on the way in which the evidence is being used. If the evidence is offered to prove the truth of what the declarant said then it is hearsay and, subject to the availability of any exceptions, inadmissible. If, on the other hand, a relevant inference can be drawn from the mere fact that the words were spoken, then the evidence is called original evidence, and falls outside the scope of the exclusionary rule. Original evidence is not subject to the same problems as hearsay evidence because its probative value does not depend on the credibility of the declarant. If the mere fact that the words were spoken is relevant, regardless of their truth, then all that the jury needs to be satisfied about is that the words were in fact spoken. The speaking of words is no different from any other fact, such as a traffic light being red. Just as with any other fact to which a witness testifies, the jury will be able to decide whether or not the words really were spoken on the basis of their assessment of the credibility of the witness who testifies to that effect. The test in Subramaniam is relatively easy to apply in the case of what are referred to as ‘express’ assertions. These are statements where a person __________________________________________________________________________________________________________________________________________

3

Subramaniam v Public Prosecutor [1956] 1 WLR 965, 969. 91

Principles of Evidence expressly asserts something to be true, and the evidence is offered as proof of the truth of that which is asserted. At common law, however, the hearsay rule has also been held to apply to ‘implied’ assertions: see Walton v R (1989), R v Benz (1989), Pollitt v R (1992) and R v Kearley (1992). In Walton, Mason CJ stated that: An implied assertion is one which can be inferred or implied from a statement or from conduct, and will generally not be deliberately intended by the author.4

The complexities caused by this extension of the hearsay rule are discussed in detail below under the heading ‘Implied Assertions’.

6.2.2 Examples of hearsay and of original evidence The following are examples of evidence which is only relevant for a hearsay purpose. These examples are actually taken from the notes to s 59 of the uniform evidence legislation; but they also fall within the scope of the common law definition of hearsay: • D is the defendant in a sexual assault trial. W has made a statement to the police that X told W that X had seen D leave a nightclub with the victim shortly before the assault is alleged to have occurred. Unless an exception to the hearsay rule applies, evidence of what X told W cannot be given at trial. • P has told W that the handbrake on W’s car did not work. Unless an exception to the hearsay rule applies, evidence of that statement cannot be given by P, W or anyone else to prove that the handbrake was defective. • W had brought a video cassette recorder and written down its serial number on a document. Unless an exception to the hearsay rule applies, the document is inadmissible to prove that a video cassette recorder later found in D’s possession was the video cassette recorder bought by W. The following are examples of original evidence, that is, evidence relevant for a non-hearsay purpose: • Cases where the act of speaking the words is itself legally significant; for example the formation of a contract through oral negotiations, the making of a defamatory comment, or the uttering of a threat to kill. In the first example the words spoken can be led to prove the terms of the alleged contract. In the second and third examples the speaking of the defamatory or threatening words may constitute, respectively, an actionable tort or a criminal offence. • Evidence, in a case where a will is being challenged on grounds of insanity, to the effect that the testator frequently stated ‘I am Genghis Khan’. The __________________________________________________________________________________________________________________________________________

4

(1989) 166 CLR 283, 292. 92

Hearsay: The Exclusionary Rule out of court statements are obviously not being adduced to prove that the testator was Genghis Khan, but as the basis for an inference that the testator believed himself to be Genghis Khan, and was therefore insane. • Evidence that a witness has made a prior consistent or prior inconsistent statement if used to either buttress or impeach the credibility of the witness (see Chapter 14: Credibility Evidence). • Evidence led to prove the basis of an expert’s opinion; for example, a doctor’s recitation of a history given to them by a patient.

6.2.3 Uniform evidence legislation All the examples just discussed would be analysed in exactly the same way under the uniform evidence legislation. The only significant difference in the definition of hearsay at common law and under the uniform evidence legislation – and it is a very significant difference – is that the definition of hearsay in the uniform evidence legislation is restricted to intentional assertions. Section 59(1) of the legislation thus states the hearsay rule as follows: Evidence of a previous representation is not admissible to prove the existence of a fact that the person intended to assert by the representation.

The phrase ‘previous representation’ is defined in the Dictionary section of the legislation as ‘a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced’. ‘Representation’ is defined to include the following: (a) an express or implied representation (whether oral or in writing); and (b) a representation to be inferred from conduct; and (c) a representation not intended by its maker to be communicated to or seen by another person; and (d) a representation that for any reason is not communicated.

Despite the inclusiveness of the definition of ‘representation’, the use of the word ‘intended’ in the definition of hearsay restricts the hearsay rule to intentional assertions. The Australian Law Reform Commission justified this narrowing of the rule with the following comment: Evidence of conduct, including statements from which an implied assertion of a fact can be drawn, suffers from weaknesses similar to those which affect evidence of express assertions of fact – the dependence on the perception, memory and clarity of the behaviour of the ‘asserter’ and the inability to test them by cross-examination of the ‘asserter’. It will not, however, suffer from dependency on the veracity of the asserter unless the asserter intended that the assertion be implied from his conduct. If the implied assertion is unintended, then it is unlikely that there was any deliberate attempt to mislead.5 __________________________________________________________________________________________________________________________________________

5

Evidence, ALRC 26, 1985, Vol 1 [684]. 93

Principles of Evidence In other words, while unintentional assertions may still be ambiguous or mistaken, they will not be deliberately misleading. Any statement which expressly asserts something will clearly be intentional; but a person may also intend to assert something which they do not expressly state. A person making a sarcastic or ironic comment, for example, might actually intend to assert the exact opposite of what their words, taken at face value, appear to be asserting; similarly, rhetorical questions are in effect intentional assertions, even though a question is clearly non-assertive in form. Implied assertions will usually, however, be unintended, and will therefore fall outside the definition of hearsay contained in s 59 of the uniform evidence legislation.

6.2.4 Dual relevance An out of court statement may sometimes be relevant for both a hearsay and a non-hearsay purpose. At common law in such cases, the evidence is admissible for the non-hearsay purpose, but not for the hearsay purpose, and the jury should be directed accordingly. If there is a risk that even a properly directed jury might use the evidence as the basis for an impermissible hearsay purpose then, according to Dawson and Gaudron JJ in Pollitt v R (1992),6 the judge has a discretion to exclude the evidence altogether. The situation is different under the uniform evidence legislation. Section 60 of the legislation provides that: The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation.

This means that evidence admitted for a non-hearsay purpose can also be used to prove the truth of the fact asserted by the representation. For example, a witness’s prior consistent and inconsistent statements might be admissible for the purposes of assessing the credibility of the witness (see Chapter 14: Credibility Evidence). A statement admitted for such a purpose can also then, by virtue of s 60, be used to prove the truth of the facts asserted by the statement. There are similar provisions in both Queensland and Tasmania, allowing prior consistent and inconsistent statements admitted for credibilityrelated purposes to also be used as evidence of their truth.7 Section 60 of the uniform evidence legislation, however, is broader in scope and has been described by one judge as having ‘extraordinarily wide ramifications’.8 In Welsh v R (1996), for example, a psychiatrist gave evidence of statements made to her by the accused; although the statements were only admitted to show the basis for the psychiatrist’s opinion – a non-hearsay purpose – the effect of s 60 was that they also became admissible for their truth. __________________________________________________________________________________________________________________________________________

6 7 8

(1992) 174 CLR 558, 603. See Evidence Act 1977 (Qld), s 101; and Evidence Act 1910 (Tas), s 81L(2). Welsh v R (1996) 90 A Crim R 364, 368 (Hunt CJ at CL). 94

Hearsay: The Exclusionary Rule

6.2.5 The declarant’s state of mind A point which often causes some confusion is the fact that the hearsay rule does not prevent a person’s state of mind from being established by their out of court statements and conduct. Section 72 of the uniform evidence legislation, for example, provides that: The hearsay rule does not apply to evidence of a representation made by a person that was a contemporaneous representation about the person’s health, feelings, sensations, intention, knowledge or state of mind.

The position is the same at common law, although it is unclear whether this is because the use of an out of court statement in this way is hearsay to which an exception applies, or because it is not hearsay at all. Cross on Evidence takes the former approach, referring to an exception for ‘statements concerning the maker’s contemporaneous state of mind or emotion’. In R v Hendrie (1985), on the other hand, the South Australian Supreme Court declared that the use of such statements was not hearsay, because the evidential value of the statements ‘is derived from experience of human behaviour which indicates that people tend to express their intentions or states of mind. For that reason what a person says is some evidence of what they are thinking’.9 Whichever view is correct, though, the important point is that the hearsay rule does allow a person’s state of mind to be inferred from their statements and conduct. Whether this is because the use of such statements is permitted under an exception to the hearsay rule, or is admissible as original evidence, does not – in practical terms – make any real difference. This is not to deny that the exclusion of such evidence from the ambit of exclusion is somewhat anomalous. The hearsay danger of insincerity clearly arises when, for example, we use a person’s statement that they intend to do something as evidence that the person did indeed intend to do what they said they intended to do. They might, of course, have been lying. Nevertheless, the inference is permitted. Whether the state of mind which can be inferred is actually relevant to the issues in the trial is, of course, another matter. This means that – subject only to the requirement of relevance – a person’s knowledge, belief, fear, intention and other states of mind and emotion can all be established by what they said or did outside court.10 There is, therefore, no hearsay problem in inferring from the fact that a person said ‘I am afraid’, that they were indeed in a state of fear; or in inferring from the fact that a person said ‘I intend to go shopping this afternoon’, that they did so intend. Similarly, from the fact that the accused in a murder trial had told the deceased ‘I hate you’, the tribunal of fact would be entitled to infer that the accused did indeed hate the deceased, a fact which would obviously be relevant to establish __________________________________________________________________________________________________________________________________________

9 (1985) 37 SASR 581, 585 (King CJ). 10 See Palmer, A, ‘Hearsay: A Definition that Works’ (1995) 14 University of Tasmania Law Review 29, 32–35.

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Principles of Evidence motive. And in Baron Parke’s famous example of the sea captain – discussed in the next section – it is not hearsay to infer from the captain’s conduct his belief that the ship was seaworthy; the hearsay problem lies, if at all, in the next step, in using that belief as the basis for an inference that the ship was in fact seaworthy.

6.3

Implied assertions

The great debate about the common law rule over the last 50 years or so has been whether – for the purposes of the hearsay rule – more is ‘contained’ in a statement than that which the speaker intends to assert. This issue is, as already noted, avoided under the uniform evidence legislation, where the definition of hearsay is restricted to intentional assertions; but in jurisdictions where the common law definition of hearsay still applies, an understanding of the problem of implied assertions is essential.

6.3.1 Wright v Tatham The starting point for any discussion of implied assertions is the judgment of Baron Parke in the famous case of Wright v Doe d Tatham (1837). There the issue was the sanity of a testator who had left his considerable estate to his steward. The steward wished to lead evidence of several letters addressed to the testator in which the writers addressed the testator as if he were sane. Baron Parke observed that because each of the writers had treated the testator as if he were sane it could be inferred that the writers believed the testator to be sane. The question was whether this ‘fact’ could be used to prove that the testator was in fact sane. Baron Parke held that it could not; he said that the letters must be considered ‘on the same footing as if they had contained a direct and positive statement that he was competent’. In other words, the letters were to be treated as if they had expressly asserted that the testator was sane. Viewed in that way, the letters were obviously hearsay. Baron Parke had discovered what came to be called the ‘implied assertion’. He gave some further examples, the most well known of which is the following: a ship sinks at sea, and a question then arises as to its seaworthiness. There is evidence that before the ship set sail, the captain carefully inspected it and then embarked on it with his family. From this conduct it can be inferred that the captain believed the ship to be seaworthy. But the captain’s inferred belief in the seaworthiness of the ship could no more be used as evidence that the ship was seaworthy, according to Baron Parke, than could his express assertion to that effect.

6.3.2 Implied assertions defined The extension of the hearsay rule to implied assertions means that, for the purposes of the hearsay rule at common law, an out of court statement 96

Hearsay: The Exclusionary Rule contains more than that which it expressly asserts. The statement also contains those things which are ‘implicit in or to be inferred from something that was said’ or done.11 In particular, the statement must be taken to contain any state of mind which can be inferred from it. From the statement we might, for example, be able to infer that the speaker believed in the existence of a fact (as in the examples from Wright v Tatham), or that the speaker was afraid of something, or that the speaker intended to do something. It is important to remember that the inference as to the speaker’s state of mind is always permitted: see above, under the heading ‘The declarant’s state of mind’. The hearsay rule only comes into operation once that state of mind has been established. Failure to remember this fact is a frequent source of confusion. The hearsay rule still only applies, however, when – to use the language of Subramaniam – ‘the object of the evidence is to establish the truth of what is contained in the statement’. This means that of the many states of mind which can be inferred from a statement or act, the hearsay rule is only concerned with the use of those which are capable of being true. A state of mind which cannot be true can obviously not be used as an assertion of its truth. The only state of mind which can be used in this way is the state of mind called belief. As the Australian Law Reform Commission commented in its Evidence report, ‘the implied assertion is based on the inference drawn as to the beliefs of the actor – a belief, for example, as to existence of a particular state of fact’.12 Other states of mind, such as fear or intention, cannot be ‘true’; they cannot therefore be used as assertions of their truth. The courts have, therefore, consistently allowed inferences to be drawn from these states of mind. In Walton, for example, the High Court held that it was not hearsay to use a person’s statements of intention as the basis for an inference that the person acted in accordance with that intention. This means that it is extremely important to identify precisely the state of mind which is being inferred from an out of court statement. If the statement is being used as the basis for an inference that the speaker believed in the existence of a fact, and the statement is being offered as proof of the truth of that belief, then the evidence is hearsay. If a different state of mind can be inferred, and that state of mind is relevant, then the evidence is not hearsay. A definition of hearsay for which I have argued elsewhere, therefore, is that: An out of court act is inadmissible as evidence of the truth of any belief which is asserted by or which can be inferred from that act.13

The application of this definition is discussed in detail in the following sections. It is crucial to note, however, that the state of mind inferred from the out of court statement or conduct must be relevant. A frequent method of __________________________________________________________________________________________________________________________________________

11 R v Kearley [1992] 2 AC 228, 261 (Lord Oliver). 12 Evidence, ALRC 26, 1985, Vol 1 [684]. 13 See Palmer, A, ‘Hearsay: A Definition that Works’ (1995) 14 University of Tasmania Law Review 29, 30. The word ‘act’ was intended to cover both statements and non-verbal 97

Principles of Evidence attempting to evade the hearsay rule is to claim that the evidence goes to the ‘state of mind’, of the accused, or of the victim or of some other person whose actions might be thought relevant to the issues in the trial. This evasion can only work if that person’s state of mind is either a fact in issue, or a fact relevant to a fact in issue. If, on closer analysis, it appears that the statement or conduct is only relevant to prove the truth of a belief which can be inferred from it, then it is hearsay.

6.3.3 Inferences from fear Fear is a state of mind which has no truth value. This means that if a relevant inference can be drawn from the fact that a person was in a state of fear, the hearsay rule will not prevent this. R v Matthews (1990) provides an example of a case where a person’s fear is relevant. There the accused was charged with the rape and murder of his estranged wife. At trial he alleged consent as a defence to the rape, and provocation – in the form of alleged taunts about his sexual prowess – as a defence to the murder. In the months before her death, the deceased had made several statements to the police, to her boyfriend and to a female friend, from which it could be inferred that she was terrified of the accused, whom she feared might kill her. The trial judge held that this evidence was relevant to the issue of consent because the deceased’s fear of the accused made it very unlikely that she would have consented to having intercourse with him. Matthews does, however, highlight the importance of distinguishing between the fact that a person is afraid, and the beliefs on which that fear is based. If the evidence is used to prove that there really was something to be afraid of, then clearly it is being used to prove the truth of the belief, a hearsay use. If, however, the person’s fear is relevant regardless of whether or not the beliefs on which it is based are true, then the evidence can be used without infringing the hearsay rule. In Matthews, the deceased’s fear of the accused was relevant to the issue of consent whether or not it was soundly based; that is to say, whether or not her belief that the accused was dangerous was true. But beyond this the evidence could not have gone. It could not have been used, for example, to prove the identity of the murderer if that had been in issue. The only relevance of the evidence to the issue of identity would be in providing the basis for an inference that the deceased believed that the accused might kill her, and then using that belief as an assertion of its truth. That would be hearsay. But it is not always so easy to distinguish between fear and the beliefs on which the fear is based. Indeed, the case which is usually cited as authority for the proposition that the hearsay rule permits the drawing of inferences from a person’s state of mind shows just how difficult the distinction can be. In Ratten v R (1972) the accused was charged with murdering his wife with a shotgun. The prosecution were allowed to lead evidence of a phone call which had

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Hearsay: The Exclusionary Rule been made from the accused’s home during the eight minute period in which the shooting must have occurred. The relevance of the evidence was assessed on the basis that the caller was the deceased, although this was certainly open to question. It was, according to Lord Wilberforce ‘a matter for the jury to decide what light (if any) this evidence ... threw upon what situation was occurring, or developing at the time’.14 From the tone of the caller’s voice and her manner, Lord Wilberforce suggested, it could be inferred that the caller was in a state of great emotion. This fact was relevant on the basis that it was inconsistent with the defence of accidental shooting that the deceased should be in a state of great emotion shortly before she was shot. No hearsay problem there. Lord Wilberforce also suggested, however, that from the fact that the caller asked for the police, could be inferred ‘the nature of the emotion – anxiety or fear at an existing or impending emergency’.15 When coupled with Lord Wilberforce’s comment that the evidence was relevant to the ‘situation [which] was occurring, or developing at the time’ these words seem to suggest that the evidence could be used to prove that the situation was in fact an ‘existing or impending emergency’. But used for this purpose the evidence would clearly have been hearsay, because it would be being used to prove the truth of the belief on which the fear was based. This was recognised by Lord Oliver in Kearley, who commented that ‘in so far as it was considered permissible in Ratten to draw from the contents of the call the inference that the deceased was under attack from her husband and that that was true, that could be justified only by treating the contents as part of the res gestae’,16 one of the exceptions to the hearsay rule discussed in the next chapter.

6.3.4 Inferences from intention A statement such as ‘I intend to go downtown’ is, of course, an assertion: it is an assertion that the speaker does have that intention. Like any assertion, it can be true or false, sincere or insincere. But we have already seen that an intention, like any other state of mind, can be inferred from such an assertion without infringing the hearsay rule. The question is whether the hearsay rule permits any further inferences to be drawn. Once inferred, intention is – like fear, but unlike belief – a state of mind which can be neither true nor false: it simply is. There is no such thing as a ‘false’ intention. The state of mind called intention can not, therefore, be used as an assertion. This is not to deny, however, that there is an element of belief in intention: a person can only rationally intend to do something which they believe themselves to be capable of doing. This means that we must again be careful __________________________________________________________________________________________________________________________________________

14 [1972] AC 378, 388. 15 Ibid. 16 [1992] 2 AC 228, 267. 99

Principles of Evidence to distinguish between intention and belief. If the statement of intention is really being used for the purpose of proving that the person was capable of doing the intended act, then it might well be classified as hearsay. But if there are other grounds for believing the person to have been capable of doing the act, or if it seems inherently likely that they were so capable, then we are not relying on the element of belief implicit in the intention and are justified in disregarding it for the purposes of the hearsay rule. That being so, it should be possible to use evidence of a person’s intentions without infringing the hearsay rule; and this is, again, precisely what the cases say. The obvious use is, of course, to offer an intention as evidence from which the tribunal of fact can infer, if it chooses, that the intention was carried out. In R v Hendrie (1985), for example, the accused was a home renovator charged with the rape and murder of a woman with whom he was on familiar terms. Her body was found in the bedroom of the house, which was the only room in which there was any evidence of a struggle. The deceased had discussed with her husband her intention to have a window in their bedroom converted into a door. This intention provided an explanation – consistent with the perpetrator being the accused – for why the deceased might have gone into her bedroom with the perpetrator without a struggle, and why it was that the bedroom window curtains and fittings might have been taken down. Similarly, in Walton v R (1987) the deceased had told several witnesses of her intention to travel to town in order to meet the accused on the night on which she was murdered. A majority of the High Court held that ‘her intention was relevant because it might be inferred that she acted in accordance with that intention’.17 It might be so inferred on the basis that the existence of an intention to do an act makes it more likely that the intended act was done. In some cases, of course, the relevance of the intention to the doing of the act will no doubt be marginal, and the tribunal of fact may decline to draw the inference sought, but the important point for our purposes is that the hearsay rule does not prevent them doing so. A difficulty does arise, however, when the speaker’s ability to achieve their intentions depends on the actions of others. In Walton, for example, the deceased did not just say that she intended to go to the town centre; she said that she intended to meet the accused there. There was in fact other, independent evidence, from which it could be inferred that the accused also intended to meet the deceased that night; because of this it was unnecessary for the court to consider the problem and only Mason CJ did so. Mason CJ held that the deceased’s intention could be used as evidence that she did in fact meet the accused. The truth is, however, that on its own, evidence of the deceased’s intention was utterly incapable of proving that she actually met the deceased. This is __________________________________________________________________________________________________________________________________________

17 (1989) 166 CLR 283, 300 (Wilson, Dawson and Toohey JJ). 100

Hearsay: The Exclusionary Rule because the occurrence of the meeting depended as much on the accused’s actions and intentions as they did on the deceased’s. Her statements of intention were only relevant to her own actions; indeed the state of mind called intention can only ever be concerned with the actions of the person whose intention it is. I can hope, fear or believe that you will do something; but I can not ‘intend’ it. Accordingly, it was only in combination with her beliefs about the accused’s intentions – in particular, her belief that the accused had arranged, and intended, to meet her – that the deceased’s intention could be used as the basis for an inference that the meeting took place. Evidence of the deceased’s intentions could, as it were, be used to place her there; to place the accused there as well required reliance on her beliefs. To use her beliefs for such a purpose should have been recognised as hearsay: see Macrae v R (1995).

6.3.5 Inferences from belief Belief, like fear and intention, is a state of mind which simply is; but unlike either fear or intention, its content – that which is believed – must be either true or false. It can therefore be used as an assertion; indeed it is the only state of mind which can be used in this way. But it is only when used as an assertion that the hearsay rule is infringed: the fact that a person believes something can also constitute a circumstance from which a relevant inference can be drawn. In Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979), for example, a majority of the High Court held that a testatrix’s statements about her son could not be used to prove that he was guilty of misconduct which would disentitle him from the relief of the court. That would have been hearsay. But her belief that her son had treated her badly could have been used in other ways: if motive had been relevant, for example, her belief could have been used to explain her reasons for disinheriting him. In many cases, though, the belief may only be relevant if true. Even in these cases, however, the belief can still be used as the basis for a permissible inference if the relevance of the belief lies in the fact that it was held, and its truth is proved by other means. A person’s belief in the existence of a fact might, for example, be used as the basis for an inference that they knew about the fact’s existence, if such knowledge is relevant to an issue at trial. In R v Matthews (1990), for example, the accused’s diary entry for the day after the murder read ‘Liz dead, 27 years five months nine days’. He admitted to the police that this might actually have been written on the night of the murder. His story at that time was that he had raped the deceased but had not killed her, and he explained the diary entry as merely a reference to the state of his relationship with the deceased following the rape and other events of that evening. However, as Jacobs ACJ pointed out, in their natural meaning the words attributed to the accused an esoteric knowledge of the death which was highly incriminating. 101

Principles of Evidence The important point about this case is that the statement of belief is not being used to prove the truth of that belief: the truth of the belief – that the deceased was dead – is proved by other means. Because of this, the hearsay rule is not infringed. If, on the other hand, the evidence is offered to prove the truth of a belief which can be inferred from it, then the evidence is clearly hearsay.

6.3.6 Classifying the evidence as ‘conduct’ Evidence of out of court statements or conduct will sometimes be classified as original evidence, even though an ‘implied assertion’ can be extracted from it. In Walton v R (1989), Wilson, Dawson and Toohey JJ claimed that the distinction is: ... between evidence of conduct which, even though it may contain an assertion, is tendered as a relevant fact or a fact relevant to a fact in issue and is therefore admissible and evidence of conduct which has no probative value other than as an assertion and is therefore not admissible.18

Similarly, in Pollitt v R (1992), Brennan J observed that the distinction is one: ... between a case where the existence of a fact to be proved is to be implied in (though not expressly asserted by) what the maker of the statement said and a case where the existence of a fact to be proved is to be inferred from the fact that the statement was made in the circumstances in which it was made.19

This distinction is undoubtedly easier to state than it is to apply, and is therefore best illustrated by example. R v Kearley (1992) provides a convenient starting point. In that case, the police suspected the accused of dealing in illegal drugs. He was arrested and his home was searched. The police found only a small quantity of drugs, not enough to raise an inference that the accused was in possession of the drugs with intent to supply. As this was the offence with which the police wished to charge the accused, they sought to raise that inference by other means. They therefore led evidence that while they were searching the house 11 people phoned, asked for the accused and then for drugs, and that seven people called at the house offering to buy drugs for cash. None were detained or identified by the police. The obvious explanation for these inquiries was that the callers believed the accused to be a supplier of drugs; and as the evidence was being offered to prove the truth of this belief it could clearly have been classified as hearsay. Lord Griffiths, however, argued that the hearsay rule did not apply because: The evidence is not offered for the purpose of inviting the jury to draw the inference that the customers believed they could obtain drugs but to prove as a fact that the telephone callers and visitors were acting as customers or potential __________________________________________________________________________________________________________________________________________

18 (1989) 166 CLR 283, 304. 19 Pollitt v R (1992) 174 CLR 558, 572. 102

Hearsay: The Exclusionary Rule customers which was a circumstance from which the jury could if so minded draw the inference that the appellant was trading as a drug dealer; or to put it in the language of the indictment that he was in possession of drugs with intent to supply them to others.20

In other words, Lord Griffiths thought that the evidence was better classified as ‘conduct which, even though it may contain an assertion, is tendered as a relevant fact or a fact relevant to a fact in issue’, than as ‘conduct which has no probative value other than as an assertion’. Although a majority of the House of Lords in Kearley rejected Lord Griffiths’ reasoning – holding that the evidence was either irrelevant or hearsay – it was Lord Griffiths’ approach which had prevailed in the earlier, and very similar, South Australian case of R v Firman (1989). In Firman the accused, whose first name was Prue, was charged with possessing heroin for sale. There was again evidence that while the accused’s premises were being searched several phone calls were received in which the callers made inquiries for the purchase of drugs, often asking for Prue by name. King CJ held the phone calls to be admissible as original evidence on the following basis: The purpose of the evidence of the telephone calls in the present case was not to prove the truth of anything stated in them. It was to prove the making of the sort of inquiries and offers which one would expect if a drug-vending business or activity was being carried on at the premises and by the person sought in the inquiries, namely ‘Prue’. There was in fact very little by way of assertion in the calls. Almost all actions and words involve some implied assertion and no doubt some implied assertions are to be found in what was said. Most of the calls, I suppose, imply an assertion of an intention to purchase drugs and a belief that ‘Prue’ will supply them. The existence of those states of mind on the part of the callers are not probative, however, of willingness on the part of ‘Prue’ to supply drugs nor of her participation in the sale or supply of drugs. Those states of mind would not be admissible even if proved by the evidence of the callers.21

A similar approach has also been taken in cases where the accused is charged with running an illegal gambling operation, and evidence is led of phone calls made to the accused’s premises in which the callers attempt to place bets: see, for example, Davidson v Quirke (1923) and McGregor v Stokes (1952). What the courts are effectively doing in cases like Firman is refusing to analyse the evidence in terms of the implied assertions which it clearly contains, on the basis that the implied assertion analysis – although open – is unduly artificial. This is probably justified in cases where the ‘evidence as relevant conduct’ analysis does indeed seem more natural and persuasive than the ‘evidence as implied assertion’ approach; it is submitted that Firman and Kearley are such cases. In other cases, however, classifying an out of court statement as __________________________________________________________________________________________________________________________________________

20 [1992] 2 AC 228, 238; emphasis added. 21 R v Firman (1989) 52 SASR 391, 396.

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Principles of Evidence ‘relevant conduct’ is simply a method of evading the operation of the hearsay rule. In R v Benz (1989), for example, the two accused, mother and daughter, were charged with the murder of the mother’s de facto husband. There was evidence that two women – who it could be inferred were the murderers – were seen by a witness, on the night of the murder, on the bridge from which the deceased’s body must have been dumped. The witness testified that as he drove across the bridge he wound down the window of his car and asked if everything was all right. One of the two women turned around and replied ‘It’s OK, my mother is just feeling sick.’. The evidence was relevant to identify the two accused as the two women on the bridge, because it suggested that the two women on the bridge were – like the two accused – mother and daughter. Deane, Gaudron and McHugh JJ clearly thought the evidence was hearsay, on the basis that it was being used to prove the truth of an implied assertion that the other woman was the speaker’s mother. Dawson J, however, denied that the evidence was hearsay, arguing that: ... in referring to the older woman as her mother, the younger woman was acting in accordance with the relationship known to exist between the [accused] and it was that fact which was relevant ... The making of the statement constituted conduct which went to the identity of the two women on the bridge and was admissible, not as an exception to the hearsay rule, but as a relevant fact.22

Dawson J’s argument is that the existence of a mother-daughter relationship can be directly inferred from the behaviour of the two women without there being any need to make an intermediate inference as to the speaker’s beliefs. A similar case would arise where the jury was asked to infer that a woman seen breastfeeding a baby was the baby’s mother on the grounds that the two were acting in accordance with the relationship of mother and baby. But in Benz itself there is nothing in the conduct of the two women per se which could be characterised as mother-daughter behaviour. The only thing which makes it more likely that they are mother and daughter is the fact that one actually refers to the other as her mother. Because of this, the evidence should surely have been classified as ‘conduct which has no probative value other than as an assertion’.

__________________________________________________________________________________________________________________________________________

22 (1989) 168 CLR 110, 134. 104

Hearsay: The Exclusionary Rule

6.4

Summary

6.4.1 Common law In jurisdictions where the common law still applies: • the hearsay rule applies to out of court statements (both written and oral, and including statements made in proceedings other than the one in question) and conduct; • hearsay evidence is inadmissible unless an exception is available; • evidence possessing dual relevance and admissible for a non-hearsay purpose can not be used for the hearsay purpose unless an exception is available; • assertive statements and conduct are hearsay if the statement or conduct is used to prove the truth of that which it asserts; • non-assertive statements or conduct are hearsay if the statement or conduct is used to prove the truth of a belief which can be inferred from it; • evidence of an out of court statement or conduct is not hearsay if a relevant inference can be drawn from the fact that the statement was made or the conduct engaged in.

6.4.2 The uniform evidence legislation In jurisdictions where the uniform evidence legislation applies: • the hearsay rule applies to ‘previous representations’: s 59(1); • a previous representation is one made other than in the course of giving evidence in the proceeding, and includes representations made by words and conduct: the Dictionary; • evidence of a previous representation is hearsay when it is used to prove the existence of a fact that the person intended to assert by the representation: s 59(1); • hearsay evidence is inadmissible unless an exception is available: s 59(1); • evidence possessing dual relevance and admissible for a non-hearsay purpose can also be used for the hearsay purpose: s 60.

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Principles of Evidence

Hearsay: common law Is the evidence of an out-of-court statement or conduct?

No

THE EVIDENCE IS NOT HEARSAY

Yes

Is the statement or conduct assertive? No

Yes

Is the evidence being used to prove the truth of the assertion?

No

Is the evidence being No used to prove the truth of a belief which can be inferred from the statement or conduct?

Yes

Yes

THE EVIDENCE IS HEARSAY

The evidence is inadmissible unless an exception applies. If the evidence is relevant for a non-hearsay purpose it is admissible for that purpose but not for the hearsay purpose

106

Hearsay: The Exclusionary Rule

Hearsay: uniform evidence legislation No

Is the evidence of a previous presentation?

Yes THE EVIDENCE IS NOT HEARSAY

No

Did the maker of the representation intend to assert the existence of a fact?

Yes

No

Is the evidence being used to prove the existence of that fact?

Yes

THE EVIDENCE IS HEARSAY

Is the evidence relevant and admissible for a non-hearsay purpose? No

The evidence is inadmissible unless an exception applies

Yes

The evidence is admissible for the hearsay purpose and for the non-hearsay purpose 107

CHAPTER 7

HEARSAY: EXCEPTIONS TO THE RULE

7.1

Introduction

7.1.1 Overview This is the second of two chapters dealing with the hearsay rule. The previous chapter dealt with the definition of hearsay, ie, the question of whether a particular item of evidence should be classified as hearsay, either at common law or under the uniform evidence legislation. This chapter deals with the exceptions to the hearsay rule, ie, the question whether evidence which is hearsay and therefore prima facie inadmissible, can nevertheless be admitted because it falls within the scope of one or more of the exceptions to the hearsay rule. The chapter begins with a discussion of the rationales for the exceptions, and then describes the process by which those exceptions were developed. It then turns to a detailed discussion of the most important of the many exceptions to the hearsay rule. Although this discussion generally follows the structure of the uniform evidence legislation, the main common law and statutory exceptions available in those jurisdictions which have not yet adopted the uniform evidence legislation are also covered. The summary of this chapter provides a convenient reference point for determing which of the exceptions discussed are available under the uniform evidence legislation and which are available at common law. It is also important to note that the chapter does not attempt to cover every single common law and statutory exception to the hearsay rule: there are simply too many. It does, however, deal with all the exceptions contained in the uniform evidence legislation, albeit sometimes briefly.

7.1.2 Rationale of the exceptions By far the most influential general theory of the exceptions to the hearsay rule is that which was advanced by Wigmore. Although Wigmore’s theory is in truth an attempt to provide a principled explanation for what was in fact a fairly unprincipled process, it is – as far as ex post facto rationalisations go – a useful one: The purpose and reason of the hearsay rule is the key to the exceptions to it. The theory of the hearsay rule is that the many possible sources of inaccuracy and untrustworthiness which may lie underneath the bare untested assertion of a witness can best be brought to light and exposed, if they exist, by the test of cross-examination. But this test or security may in a given instance be 109

Principles of Evidence superfluous; it may be sufficiently clear, in that instance, that the statement offered is free enough from the risk of inaccuracy and untrustworthiness, so that the test of cross-examination would be a work of supererogation. Moreover, the test may be impossible of employment – for example, by reason of the death of the declarant – so that, if his testimony is to be used at all, there is a necessity for taking it in the untested shape.1

The first consideration justifying the creation of a hearsay exception, then, was a perception that the circumstances in which the statement was made provided it with some sort of guarantee of trustworthiness. The statement might have been made in the course of a duty, for example, or might have been against the interests of the person who made it. This fact might suggest that the evidence was likely to be reliable. Accordingly, an exception to the hearsay rule might have been created for statements made in such circumstances. The second consideration was a necessity for the evidence. As Wigmore observed: Where the test of cross-examination is impossible of application, by reason of the declarant’s death or some other cause rendering him now unavailable as a witness on the stand, we are faced with the alternatives of receiving his statements without that test, or of leaving his knowledge altogether unutilised. The question arises whether the interests of efficient investigation would suffer more by adopting the latter or the former alternative.2

At common law, therefore, many of the hearsay exceptions require that the declarant be dead. Statutory exceptions have tended to take a more expansive view of the requirement of necessity, accepting that there are reasons other than death for why a declarant might be unavailable as a witness.

7.1.3 Development of the exceptions There have traditionally been many, many exceptions to the hearsay rule, both at common law and statute. Many of the common law exceptions are archaic and ossified, and their boundaries often bear little relation to their ostensible rationales; and most of the statutory exceptions are designed to deal with specific and narrowly defined situations. The haphazard and conceptually unsatisfying nature of many of the exceptions to the hearsay rule is the inevitable result of the process by which they were developed, a process described by Lord Reid in Myers v DPP (1965) in the following way: It is difficult to make any general statement about the law of hearsay evidence which is entirely accurate, but I think that the books show that in the 17th century the law was fluid and uncertain but that early in the 18th century it had become the general rule that hearsay evidence was not admissible. Many reasons for the rule have been put forward, but we do not know which of them __________________________________________________________________________________________________________________________________________

1 2

Wigmore, J, Wigmore on Evidence, 3rd edn, 1940, Boston: Little, Brown & Co, § 1420. Ibid. 110

Hearsay: Exceptions to the Rule directly influenced the judges who established the rule. The rule has never been absolute. By the 19th century many exceptions had become well established but again we do not know how or when the exception came to be recognised. It does seem, however, that in many cases there was no justification either in principle or logic for carrying the exception just so far and no farther. One might hazard a surmise that when the rule proved highly inconvenient in a particular kind of case it was relaxed just sufficiently far to meet that case, and without regard to any question of principle. But this kind of judicial legislation became less and less acceptable and well over a century ago the patchwork which then existed seems to have become stereotyped.3

The end of the period of judicial creation and extension of hearsay exceptions was signalled by the House of Lords decision, in Sturla v Freccia (1880), that hearsay could not be admitted unless it fell within the terms of an already existing exception to the hearsay rule. The House of Lords took precisely the same stance nearly 100 years later in Myers v DPP (1965), refusing to admit hearsay evidence despite its obvious reliability. Through this refusal to create new exceptions or to modify existing ones, the courts attempted to pass responsibility for reform of the hearsay rule to the legislative arms of government. The response of most legislatures, unfortunately, was to continue to develop the hearsay rule in the same haphazard fashion which the courts had previously taken: by the ad hoc addition of a variety of exceptions designed to allow the admission of specific, narrowly defined, classes of hearsay. Perhaps it was the slow and unsatisfactory nature of this process of reform which persuaded some members of the High Court of Australia to signal, in Walton v R (1989), their willingness to begin again the process of judicial creation of exceptions to the hearsay rule. This renewed development of the common law is discussed below in the context of specific hearsay exceptions; it has, however, been largely overtaken by the uniform evidence legislation which comprehensively rationalises and simplifies the law relating to hearsay evidence.

7.2

Structure of the uniform evidence legislation

Part 3.2 of the uniform evidence legislation – which deals with the hearsay rule – contains three divisions. The first division covers the exclusionary rule; the remaining two divisions contain the exceptions. Division 2 is entitled ‘“First-hand” hearsay’; Division 3 is entitled ‘Other exceptions to the hearsay rule’. This reflects the fundamental division in the exceptions between firsthand and more remote hearsay. Division 2 then contains two further divisions; first, between those exceptions which are applicable in civil proceedings and those which are applicable in criminal proceedings; and secondly, between those exceptions which apply when the maker of the representation is __________________________________________________________________________________________________________________________________________

3

[1965] AC 1001, 1019–20. 111

Principles of Evidence unavailable as a witness, and those which apply when the maker of the representation is available as a witness. Each of these distinctions is discussed below. The general approach of the legislation is to liberalise the effect of the hearsay rule. This more liberal approach to hearsay needs, however, to be read against the wide discretions contained in Part 3.11 of the legislation, which provide ample scope to the trial judge to exclude otherwise admissible hearsay evidence on reliability or lack of probative value grounds. These discretions are discussed in Chapter 18: Discretions to Exclude Evidence.

7.2.1 ‘First-hand’ and more remote hearsay The fundamental division is between ‘first-hand’ and more remote hearsay. This division derives from s 62 – contained in Division 2 of Part 3.2 – which provides that: (1) A reference in this Division (other than in subsection (2)) to a previous representation is a reference to a previous representation that was made by a person who had personal knowledge of an asserted fact. (2) A person has personal knowledge of the asserted fact if his or her knowledge of the fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact.

For obvious reasons, first-hand hearsay is considered more reliable; it is, therefore, more easily admitted.

7.2.2 Availability of declarant There is a further division between those exceptions which apply when the person who made the previous representation is not available to give evidence, and those which apply when the maker is so available. Clause 4 of Part 2 of the Dictionary section of the Act provides that: (1) For the purposes of this Act, a person is taken not to be available to give evidence about a fact if: (a) the person is dead; or (b) the person is, for any reason other than the application of s 16 (Competence and compellability: judges and jurors), not competent to give evidence about the fact; or (c) it would be unlawful for the person to give evidence about the fact; or (d) a provision of this Act prohibits the evidence being given; or (e) all reasonable steps have been taken, by the party seeking to prove that the person is not available, to find the person or to secure his or her attendance, but without success; or

112

Hearsay: Exceptions to the Rule (f) all reasonable steps have been taken, by the party seeking to prove that the person is not available, to compel the person to give evidence, but without success. (2) In all other cases the person is taken to be available to give evidence about the fact.

7.2.3 Civil and criminal proceedings The legislation generally adopts a more liberal attitude towards the admission of hearsay in civil proceedings than in criminal proceedings. Indeed, as far as first-hand hearsay is concerned, it can be argued that the legislation all but abolishes the hearsay rule in civil proceedings. A civil proceeding is defined in the dictionary to mean a proceeding other than a criminal proceeding. A more restrictive approach is taken to hearsay in criminal proceedings, at least as far as hearsay led by the prosecution is concerned. A criminal proceeding is defined as a prosecution for an offence, including proceedings for committal, sentencing or bail, but excluding prosecutions for prescribed taxation offences.

7.2.4 Competency of declarant Section 61(1) of the legislation provides that evidence of a previous representation can not be admitted for its truth if ‘when the representation was made, the person who made it was not competent to give evidence about the fact because he or she was incapable of giving a rational reply to a question about the fact’. Section 61(3) declares, however, that competence is to be presumed ‘unless the contrary is proved’. The effect of s 61, then, is to allow a party against whom hearsay is led to object to its admission on the grounds that the maker of the representation would, at the time the representation was made, have been incompetent to testify because incapable of giving a rational reply. The only hearsay exception exempted – by virtue of s 61(2) – from this requirement of competence is the exception for contemporaneous representations made by a person about their health, feelings, sensations, intentions, knowledge or state of mind.

7.3

First-hand hearsay

The exceptions discussed under this heading are all restricted, under the uniform evidence legislation, to first-hand hearsay. The first-hand hearsay exceptions under the uniform evidence legislation can be divided into four groups, first according to whether the proceedings are civil or criminal, and secondly, according to whether or not the maker of the representation is available as a witness. The common law equivalents to the uniform evidence legislation exceptions cannot be so conveniently classified; their scope varies from exception to exception, and for that reason must be discussed individually in the context of the specific exception. 113

Principles of Evidence Section 67 of the uniform evidence legislation imposes a notice requirement in respect of all of the first-hand hearsay exceptions discussed below, apart from those which apply to a witness’s prior representations. In other words, the only time when s 67 does not apply to first-hand hearsay is when the declarant actually testifies as a witness. When s 67 does apply to an exception, that exception will not be available unless the party wishing to adduce the evidence has given reasonable notice in writing to each of the other parties of their intention to do so. Regulation 5 of both the Commonwealth and NSW Evidence Regulations prescribe the form which notice must take. With all first-hand hearsay exceptions, apart from that which applies to ‘Representations made in other proceedings’, evidence of the representation can only be given by someone who ‘saw, heard or otherwise perceived the representation being made’, or – in the case of a witness’s prior representations – by the witness him or herself.

7.3.1 Civil proceedings: maker unavailable or inconvenient to call In civil proceedings, two of the most important exceptions created by the uniform evidence legislation are found in ss 63(2) and 64(2). There are no common law equivalents to these exceptions, which between them go a long way towards effectively abolishing the hearsay rule in civil proceedings. The first truly radical aspect of the exceptions is that they contain no requirement designed to ensure that the representations to which they apply are reliable; the only ‘guarantee’ of reliability is that the hearsay must be first-hand. The second radical aspect of the exceptions is that they allow the admission of previous representations made by a person who is either unavailable to testify, or whom it would be unduly inconvenient or expensive to call. A more easily satisfied requirement of necessity it would be hard to imagine. The breadth of these exceptions means, as far as the uniform evidence legislation is concerned, that the more specific exceptions discussed below apply only in criminal proceedings. Section 63(2) – the applicability of which is limited by s 63(1) to cases where the maker of a representation is unavailable as a witness – provides that: The hearsay rule does not apply to: (a) oral evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made; or (b) a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation.

The effect of this section is that the hearsay rule does not apply to first-hand hearsay in civil proceedings when the maker of the hearsay statement is unavailable to give evidence. 114

Hearsay: Exceptions to the Rule Section 64(2) is in identical terms to s 63(2) above, but with the addition of the following words: ‘if it would cause undue expense, or undue delay, or would not be reasonably practicable, to call the person who made the representation to give evidence’. The effect of s 64(2), then, is that the hearsay rule does not apply to first-hand hearsay in civil proceedings even when the maker of a hearsay statement is available, if calling the maker of the representation to give evidence would cause undue expense, or delay or not be reasonably practicable. One of the main aims of this exception is to ensure that in civil trials ‘the problem of whether a party should or should not have to call the maker of the previous representation who is available should be resolved so far as possible by the parties’.4 As the Australian Law Reform Commission noted: Costs can be saved in civil trials in not having to call witnesses. The proposal extends existing law by enabling a party to avoid having to call witnesses who are available by serving notice on the other parties ... and, should objection be received, obtaining the court’s leave – before or at trial – to not call the witness. If there is no objection the representation may be received in evidence without proof.5

These aims are achieved through the combination of s 67 and s 68. Section 67(3)(b) provides that when notice is given in relation to hearsay admissible under s 64(2), the notice must specify ‘the grounds, specified in that provision, on which the party intends to rely’: ie, the party must specify whether calling the maker of the representation to give evidence would cause undue delay, undue expense or would not be reasonably practicable. Section 68(1) then allows a party to whom such notice has been given to ‘object to the tender of the evidence, or of a specified part of the evidence’. The objection may be determined by the court either at or before the hearing: s 68(3). Unreasonable objections incur a costs penalty: s 68(4).

7.3.2 Criminal proceedings: representations adduced by the defence The argument that the uniform evidence legislation all but abolishes the hearsay rule in civil proceedings in respect of first-hand hearsay can also be made in relation to evidence led by the defence in criminal proceedings. The exclusion of exculpatory evidence on hearsay grounds almost inevitably raises the spectre of wrongful conviction. For this reason the uniform evidence legislation contains a special exception for hearsay evidence led by the accused. The effect of this exception is that ‘evidence called by the accused ... is not required to satisfy the conditions which the prosecution must satisfy ... This distinction is warranted primarily by the concern to minimise the __________________________________________________________________________________________________________________________________________

4 5

Evidence, ALRC 26, 1985, Vol 1 [688]. Ibid [695]. 115

Principles of Evidence conviction of the innocent’.6 The exception is contained in s 65(8) of the legislation, which provides that: The hearsay rule does not apply to: (a) oral evidence of a previous representation adduced by a defendant if the evidence is given by a person who saw, heard or otherwise perceived the representation being made; or (b) a document tendered as evidence by a defendant so far as it contains a previous representation, or another representation to which it is reasonably necessary to refer in order to understand the representation.

Section 65(8) represents a radical reform of the hearsay rule because the courts have, until very recently, always insisted that the hearsay rule applied equally to evidence led by all parties. There have, however, been indications in some recent judgments that the common law was moving towards the creation of an exception such as that contained in s 65(8): see R v Astill (Stephen) (1992) and Radford v R (1993).7 The Australian Law Reform Commission suggested that this exception would ‘enable the exonerating statements of the alleged victim to be received, the confessions of third parties and statements of deceased persons who could have given evidence’. 8 This claim appears, however, to overlook the requirement that the maker of the representation must be unavailable as a witness. The requirement of unavailability would certainly have been met in a case like Sparks v R (1964), in which the three year old victim of an indecent assault had stated that her attacker was a ‘coloured boy’. The accused was white. Because the child was too young to testify she would have fallen within the definition of a person unavailable to give evidence. So too with R v Daylight (1989), where the accused was charged with the murder by stabbing of a Japanese tourist. He wished to lead evidence of two statements made by the deceased soon after the stabbing. In both statements – one to a police officer and one to a nurse – the deceased asserted that his attacker was a ‘white man’. The accused, on the other hand, was described by the judge as being ‘of partly Aboriginal origin, and is of fairly dark complexion’. Death would obviously have rendered the maker of the representation unavailable as a witness. With ‘third party’ confessions, on the other hand, the requirement of unavailability may be more difficult to satisfy. A third party confession is a statement by someone other than the accused admitting they committed the crime with which the accused is charged. If such a confession has been made, then the defence will obviously wish to lead evidence of it in order to give __________________________________________________________________________________________________________________________________________

6 7 8

Evidence, ALRC 26, 1985, Vol 1 [692]. See also Palmer, A, ‘The Reliability-Based Approach to Hearsay’ (1995) 17 Sydney Law Review 522, 544–47. Ibid, Evidence. 116

Hearsay: Exceptions to the Rule substance to the argument that another person might have committed the crime: see, for example, Re Van Beelen (1974) and R v Blastland (1986). Assuming that the third party is alive, can be found and is capable of satisfying the requirement of competency, then they could only be declared unavailable if the court was satisfied that ‘all reasonable steps [had] been taken, by the party seeking to prove that the person is not available, to compel the person to give evidence, but without success’. Under the uniform evidence legislation, if ‘evidence of a previous representation about a matter’ has been adduced by the defence, then s 65(9) allows the other parties to the proceedings to lead evidence of other, firsthand, representations ‘about the matter’.

7.3.3 Representations made under a duty At common law, there is an exception for statements made by persons since deceased in the course of a duty to make such a statement: The conditions of admissibility are that the declarant should be dead, the statement must be of fact, not opinion, the declarant must have been under a duty to do an act and record or report it, the act must have been performed, the statement must have been made roughly contemporaneously with it and the declarant must have had no motive to misrepresent the facts.9

The exception typically applies to statements made as part of the declarant’s employment duties. An example of such a statement is provided by the case of Price v Torrington (1703), where the issue was whether a consignment of beer had been delivered to the defendant. The plaintiff’s drayman had recorded his delivery of the beer in the plaintiff’s books, as was his duty. As the drayman was deceased by the time of the trial, his entry in the books was admissible to prove that the beer had been delivered. Section 65(2)(a) of the uniform evidence legislation restates this exception, while removing some of the conditions of admissibility. The exception applies if the representation was: ... made under a duty to make that representation or to make representations of that kind.

The legislative exception is narrower than its common law equivalent in one respect: it only applies in criminal proceedings. In all other respects it is broader. Where the common law exception only applies if the declarant is deceased, the statutory exception applies if the maker of the representation is unavailable to testify for any of the reasons recognised by the uniform evidence legislation. The ‘duty’ is far more general than that the very specific and narrowly defined duty recognised in the common law exception; and the __________________________________________________________________________________________________________________________________________

9

Heydon, J, Cross on Evidence, Australian edition, North Ryde, NSW: Butterworths [33100]. 117

Principles of Evidence party offering the evidence is not required to establish that the maker of the representation had no motive to lie.

7.3.4 Res gestae and contemporaneous representations At common law there is an exception for statements forming part of the ‘res gestae’. Res gestae is a Latin phrase which roughly means the transaction or event which forms the subject matter of the proceedings. The res gestae exception thus applies to statements forming part of the event in question. At common law, two approaches had been taken to this exception. The first concentrated on the technical question of whether the statement was strictly contemporaneous with the event to which it related; the second focused instead on the question of whether the statement could, given the circumstances in which it was made, be regarded as reliable. The strict contemporaneity approach is exemplified by the famous case of R v Bedingfield (1879) where the accused was charged with the murder of a woman with whom he was living. A witness gave evidence that the deceased had suddenly emerged – with her throat cut – from a room in which she and the accused had been alone together. The deceased said ‘Oh, dear Aunt, see what Bedingfield has done to me’. Ten minutes later she died. The accused’s defence was that she had committed suicide. In an extremely controversial decision, Lord Cockburn CJ ruled that the statement was inadmissible because the event was already over when the statement was made. In Ratten v R (1972), however, Lord Wilberforce, for the Privy Council, suggested an approach which relaxed the requirement of contemporaneity while shifting the focus of the exception to the question of whether the statement had been made: ... in such conditions (always being those of approximate but not exact contemporaneity) of involvement or pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or the disadvantage of the accused.10

Shortly afterwards in the case of Vocisano v Vocisano (1974), the High Court reiterated the view that there must be exact contemporaneity between the statement and the event to which it relates, but in Walton v R (1989) and R v Benz (1989) there are several statements suggesting that were the matter to arise for consideration again the Ratten approach would now be preferred. Meanwhile, in R v Andrews (1987) the House of Lords endorsed Ratten, with Lord Ackner setting out five issues which the trial judge should address before admitting a statement as part of the res gestae: 1

The primary question is – can the possibility of concoction or distortion be disregarded?

__________________________________________________________________________________________________________________________________________

10 Ratten v R [1972] AC 378, 391. 118

Hearsay: Exceptions to the Rule 2

To answer that question the judge must first consider the circumstances in which the particular statement was made, in order to satisfy him or herself that the event was so unusual or startling or dramatic as to dominate the thoughts of the victim, so that his or her utterance was an instinctive reaction to the event, thus giving no real opportunity for reasoned reflection.

3

In order for the statement to be sufficiently spontaneous it must be so closely associated with the event which has excited the statement, that the mind of the declarant was still dominated by the event. In other words, the event must still be operative. The fact that the statement was made in response to a question is only one factor to consider.

4

Apart from the time factor, there may be special features relating to the possibility of concoction or distortion, such as malice on the part of the declarant towards a person implicated in the statement. If there is such a feature, the judge must be satisfied that there was no possibility of concoction or distortion to the advantage of the maker of the statement or to the disadvantage of the accused.

5

As far as the possibility of error is concerned, if the only basis for this is the ordinary fallibility of human recollection then this goes to the weight of the evidence, not its admissibility. Again, however, there may be special features such as the maker of the statement having drunk to excess, or an identification being made in difficult circumstances or by a person with defective eyesight. If the possibility of error arising from these features cannot be excluded then the evidence may be inadmissible.11

In Andrews, for example, the deceased declarant identified the accused as his assailant some 10–15 minutes after he received the injuries from which he subsequently died. The House of Lords was satisfied that the possibility of concoction could be disregarded, and that the evidence should therefore be admitted, notwithstanding the accused’s claim that the deceased had borne him some malice. Section 65(2)(b) of the uniform evidence legislation replaces the res gestae exception at common law. It applies in criminal proceedings if the maker of the representation is unavailable as a witness and the representation was: ... made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication.

This provision was intended to follow the approach suggested in Ratten of making admissibility turn on the likelihood of fabrication, rather than on the strict contemporaneity required in Bedingfield and Vocisano. The Australian Law Reform Commission deliberately avoided, however, the Ratten and Andrews requirement that the maker of the representation should still be under the ‘stress’ of the situation. Such a requirement was avoided, the Australian Law Reform Commission said, because ‘psychological research __________________________________________________________________________________________________________________________________________

11 R v Andrews [1987] AC 281, 300-01 (this is an edited version of the judgment).

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Principles of Evidence suggests that it would not protect against fabrication and stress adversely affects perception and performance of the person under stress’. 12 The Australian Law Reform Commission failed to specify, however, the alternative circumstances which would entitle the court to conclude that fabrication was unlikely, and given this failure it is more than possible that courts will continue to consider the factors set out in Andrews. One difference between the approach set out in Andrews and s 65(2)(b), however, is that whereas s 65(2)(b) is only concerned with the possibility of fabrication, Lord Ackner’s questions in Andrews canvass the possibilities of both fabrication and mistaken perception. This suggests that while the possibility of mistake might, at common law, be taken into account in determining whether or not the representation fell within the scope of the res gestae exception, under the uniform evidence legislation the possibility of mistake could only be taken into account in determining whether the representation ought to be excluded in the exercise of the s 135 discretion to exclude evidence for lack of probative value. A final, and apparently unintended, difference between the common law and s 65(2)(b) relates to the definition of ‘asserted fact’. At common law, the res gestae exception only applies to statements made in conditions of approximate contemporaneity with the very event which is the subject of the litigation: in criminal proceedings, the crime charged. Section 65(2)(b) does not appear to be so restricted. Section 59(2) of the uniform evidence legislation defines an ‘asserted fact’ as ‘a fact that the person intended to assert by the representation’. Imagine that the deceased in a murder case told a witness that she had made an arrangement to meet the accused on the night on which she was murdered. If this representation was made shortly after the making of the arrangement, the representation would appear to have been ‘made when or shortly after the asserted fact occurred’. There would, of course, remain the question of whether it had been made ‘in circumstances that make it unlikely that the representation was a fabrication’; nevertheless, s 65(2)(b) does appear unintentionally to extend the common law.

7.3.5 Dying declarations At common law, the dying declarations of a deceased person are admissible, at a trial for their murder or manslaughter, to prove the cause of their death, including the identity of their assailant. The exception only applies if – at the time the statements were made – the declarant was under a ‘settled hopeless expectation of death’. For the exception to apply, it must also be shown that the declarant would have been competent to testify if called to give evidence at that time. The uniform evidence legislation does not contain any direct equivalent to this exception, the Australian Law Reform Commission __________________________________________________________________________________________________________________________________________

12 Evidence, ALRC 26, 1985, Vol 1 [692].

120

Hearsay: Exceptions to the Rule reasoning that such statements might be admitted as either a contemporaneous representation, or under the exception for depositions (see below, ‘Representations made in other proceedings’).13

7.3.6 Reliable representations Section 65(2)(c) of the uniform evidence legislation applies in criminal proceedings if the maker of the representation is unavailable and the representation was: ... made in circumstances that make it highly probable that the representation is reliable.

This provision represents an endorsement of an approach to hearsay first suggested by Mason CJ in Walton v R (1989). Mason CJ said that the characterisation of evidence as hearsay to which no exception applies does not necessarily mean that the evidence is inadmissible. Before deciding whether or not to admit the evidence, the trial judge must, in some cases, ‘balance the competing considerations’. These include the following: When the dangers which the rule seeks to prevent are not present or are negligible ... there is no basis for a strict application of the rule. Equally, where in the view of the trial judge those dangers are outweighed by other aspects of the case lending reliability and probative value to the impugned evidence, the judge should not then exclude the evidence by a rigid and technical application of the hearsay rule.14

This suggestion was endorsed by Gaudron and McHugh JJ in R v Benz (1989), and actually used as the basis for admitting otherwise inadmissible hearsay evidence in the cases of R v Daylight (1989), R v Astill (Stephen) (1992), R v Miladinovic (1993) and R v Radford (1993). It is also consistent with developments in other common law jurisdictions, notably the United States and Canada: see Rule 803(24) of the US Federal Rules of Evidence, and the Canadian cases of R v Khan (1990) and R v Smith (1992). In the more recent High Court case of Bannon v R (1995), however, Brennan CJ strongly rejected the idea that otherwise inadmissible hearsay evidence should be admitted simply because it appears to be reliable. However the matter is finally resolved at common law, reliability clearly is a ground of admissibility under the uniform evidence legislation. The uniform evidence legislation fails, however, to provide any guidance about the circumstances which are to be taken to ‘make it highly probable that the representation was reliable’. In light of the judgment of Mason CJ in Walton, the Australian decisions which have purported to apply that judgment, and the decisions of Canadian and American courts applying the corresponding __________________________________________________________________________________________________________________________________________

13 Evidence, ALRC 26, 1985, Vol 1 [692], n 122. 14 (1989) 166 CLR 283, 293.

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Principles of Evidence exceptions in their own jurisdictions, it is possible to suggest that the following factors might be considered relevant:15 • whether the representation was made in circumstances closely analogous to a recognised exception; • whether the declarant had a motive to lie; • whether the declarant had the opportunity to concoct or distort their version of events; • whether the representation was made spontaneously, or at least not in response to leading questions; • whether the representation is consistent with other representations made by the declarant; • whether the representation was made in circumstances under which prosecution would be a possible consequence of lying (for example, if made while testifying in court); • whether the representation shows the person making it to have some unusual or esoteric knowledge which they are unlikely to have unless the representation was true; and • whether the circumstances in which the event was perceived are such as to reduce the risk of mistake. If the phrase ‘made in circumstances’ is construed widely, then the courts might also consider the following matters: • the creditworthiness of the declarant; and • whether the representation is consistent with, or corroborated by, other evidence in the case. These final two matters are clearly relevant to the reliability of a representation but are not easily encompassed in the concept of the ‘circumstances’ in which a representation was made. In theory they ought not to be considered; in practice they might be.

7.3.7 Representations against interest Section 65(2)(d) of the uniform evidence legislation applies in criminal proceedings if the maker of the representation is unavailable as a witness and the representation was: ... against the interest of the person who made it at the time it was made.

Section 65(2)(d) is again based on an existing common law exception. The rationale for this exception, like that for the admissions of parties discussed in __________________________________________________________________________________________________________________________________________

15 For a detailed discussion of these factors, see Palmer, A, ‘The Reliability-Based Approach to Hearsay’ (1995) 17 Sydney Law Review 522. 122

Hearsay: Exceptions to the Rule Chapter 9: Admissions, is that a person is more likely to be telling the truth when their statement is contrary to their own interests, than when their statement is consistent with their own interests. For example, a person who owes money has an obvious motive to deny the existence of the debt; but when a person claims that they owe another money it is not so easy to think of a reason for why they might be lying. One difference between the exception under the legislation and the common law exception on which it is based, however, is that the legislative exception does not require that the maker of the representation know that the representation is against their interest. This is potentially at odds with the exception’s rationale: if the person does not know that their representation is against interest then there is nothing to make it more likely that they would have been telling the truth. Another significant difference between the common law and s 65(2)(d) is that the common law exception is limited to declarations against a person’s pecuniary or proprietary interests: see the Sussex Peerage Case (1844) and Re Van Beelen (1974). It does not, for example, extend to declarations made against a person’s penal interests. One of the effects of this limitation is that a person accused of committing a crime cannot lead evidence of the fact that another person had confessed to it. In Bannon v R (1995), the High Court declined an opportunity to extend the common law exception to declarations against penal interest, holding that the facts of Bannon provided an unsuitable vehicle for considering the question. Section 65(7) greatly expands the meaning of the phrase ‘against interest’, specifically overruling the Sussex Peerage case: Without limiting paragraph 2(d), a representation is taken for the purposes of that paragraph to be against the interests of a person who made if it tends: (a) to damage the person’s reputation; or (b) to show that the person has committed an offence for which the person has not been convicted; or (c) to show that the person is liable to an action in damages.

7.3.8 Representations made in other proceedings Section 65(3), which applies in criminal proceedings when the maker of the representation is unavailable to give evidence, provides that: The hearsay rule does not apply to evidence of a previous representation made in the course of giving evidence in an Australian or overseas proceeding if, in that proceeding, the defendant in the proceeding to which this section is being applied: (a) cross-examined the person who made the representation about it; or (b) had a reasonable opportunity to cross-examine the person who made the representation about it.

123

Principles of Evidence The exception is further qualified and explained by subsections (4), (5) and (6). This exception was justified by the Australian Law Reform Commission with the argument that: Despite the risk of distortion of memory over time, prior sworn evidence in depositions should be received because of the pressures against fabrication.16

The exception applies to the testimony of a witness, now unavailable, which was: • given at the committal stage of the proceedings; • given in civil proceedings against the accused arising out of the same events as those forming the subject of the criminal charges; • given in an earlier criminal proceeding based on the same charges, where the proceedings were either aborted, or where the verdict was successfully appealed against and a retrial ordered; or • in the case of a dangerously ill or dying witness, taken in deposition form in order to preserve the witness’s testimony in the event of their death (there are statutory provisions allowing this in all Australian jurisdictions). The exception is based on statutory exceptions in the various Australian jurisdictions, which exceptions were themselves based on a common law exception for such evidence.17

7.3.9 Witness’s prior representations Section 64 of the uniform evidence legislation which applies to civil proceedings, and s 66, which applies to criminal proceedings, apply when the person who made the previous representation is available to give evidence. Sections 64(3) and 66(2) provide that: If the person who made the representation has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by: (a) that person; or (b) a person who saw, heard or otherwise perceived the representation being made; if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation.

Sections 64(4) and 66(4), which qualify respectively ss 64(3) and 66(2), provide that: A document containing a representation to which sub-section (3) applies must not be tendered before the conclusion of the examination in chief of the person who made the representation, unless the court gives leave. __________________________________________________________________________________________________________________________________________

16 Evidence, ALRC 26, 1985, Vol 1 [692]. 17 See Heydon, J, Cross on Evidence, Australian edition, North Ryde, NSW: Butterworths [33795]. 124

Hearsay: Exceptions to the Rule Section 66(3) places an additional qualification on the criminal version of the exception, effectively excluding prosecution proofs of evidence from the ambit of s 66(2). It provides that: If a representation was made for the purpose of indicating the evidence that the person who made it would be able to give in an Australian proceeding or overseas proceeding, sub-section (2) does not apply to evidence adduced by the prosecutor of the representation unless the representation concerns the identity of a person, place or thing.

These two exceptions are based on psychological research indicating that memory deteriorates rapidly – within hours if not days of an event – so that representations made while an event is fresh in the memory are more likely to be reliable than later statements. For a judicial discussion of when something will be regarded as being fresh in a person’s memory, see H v R (1997). The Australian Law Reform Commssion suggested that the benefits of the exceptions were that they: •

enable the witness to give uninterrupted evidence about what occurred at the relevant time (eg what the butler said he saw);

•

enable the best evidence to be received in the sense of evidence that is the freshest;

•

remove the difficult and artificial line drawing of the present res gestae rules and the uncertainty as to what is the precise test to apply to decide whether something is part of the res gestae;

•

enable the document used to refresh the memory of a witness to be tendered;

•

enable the consistency as well as the inconsistency of the witness to be examined while minimising the risk of adding to the time and cost of trials resulting from the admission of hearsay evidence and minimise the risk of fabrication.18

The effect of these sections, then, is that the freshest, and therefore the most reliable, of a witness’s prior consistent and prior inconsistent statements are admissible as evidence of their truth, rather than merely being admitted for the purposes of buttressing or impeaching the witness’s credit. This is a sensible reform of the common law rule that a witness’s prior consistent or inconsistent statements can only be admitted for the purposes of assessing the credibility of the witness. An obvious justification for the reform is that when the jury decides that the truth is not what the witness says now but what the witness said before, they are still deciding on the basis of what they have seen and heard in court. There is, then, no reason to apply the hearsay rule. The common law has also been moving in this direction. In R v Radford (1993), the Victorian Court of Criminal Appeal approvingly quoted comments made by __________________________________________________________________________________________________________________________________________

18 Evidence, ALRC 26, 1985, Vol 1 [688]. 125

Principles of Evidence Kirby P in R v Astill (Stephen) (1992), in support of what they called ‘the common sense’ view: ... that where the makers of the hearsay statements are witnesses before the jury, and so too were those who sought to give evidence of having heard those statements, then the weight and reliability of the issues are capable of being tested before the jury.19

7.4

Other exceptions

Division 3 of Part 3.2 of the uniform evidence legislation contains those exceptions which are available for second-hand or even more remote hearsay. The Australian Law Review Commission’s view was that ‘second-hand hearsay is generally so unreliable that it should be inadmissible except where some guarantees of reliability can be shown together with a need for its admissibility’.20 The exceptions are, therefore, small in number and restricted in their scope. Some of the exceptions do seem justifiable on grounds of reliability. The justification for others seems more pragmatic: excluding the evidence might create unnecessary obstacles to proof. There are also common law or statutory equivalents to several of these exceptions in non-uniform evidence legislation jurisdictions.

7.4.1 Business records Following the decision of the House of Lords in Myers v DPP (1965), legislation was enacted in all Australian jurisdictions creating an exception for business records. The uniform evidence legislation also contains, in s 69, an exception for business records. In practical terms, s 69 – which applies in both civil and criminal proceedings – is by far the most important of the exceptions for second-hand hearsay. Like the still-existing exceptions in several other jurisdictions,21 s 69 was modelled on the now repealed New South Wales business records exception. A detailed examination of s 69 and its State equivalents (including those not modelled on the New South Wales approach),22 is beyond the scope of this work. Taking s 69 as the paradigm, however, the various exceptions all tend to share the following key features: • they apply to representations contained in documents which form (or at one time formed) part of the records belonging to or kept by a person, body or organisation in the course of, or for the purpose of, a business; __________________________________________________________________________________________________________________________________________

19 R v Astill (Stephen) (1992) 63 A Crim R 148, 158, quoted in R v Radford (1993) 66 A Crim R 210, 235. 20 Evidence, ALRC 26, 1985, Vol 1 [678]. 21 See Evidence Act 1906 (WA), ss 79B–79G; Evidence Act 1910 (Tas), ss 40B–40T; and Evidence (Business Records) Interim Arrangement Act 1984 (NT). 22 See Evidence Act 1958 (Vic), s 55; Evidence Act 1977 (Qld), s 95; and Evidence Act 1929 (SA), s 45a. 126

Hearsay: Exceptions to the Rule • the representation must either have been made by a person who had (or who might reasonably be supposed to have had) personal knowledge of the asserted fact; or have been made on the basis of information supplied by such a person; in other words, it must be possible to identify a source of the information who had personal knowledge of the asserted fact; • the exceptions do not apply, however, to representations prepared or obtained for purposes connected with any actual or contemplated Australian or overseas legal proceeding, or criminal investigation. Several of the concepts used above obviously require further explanation. The word ‘business’ is given a very extended definition in the dictionary section of the uniform evidence legislation, and includes a ‘profession, calling, occupation, trade or undertaking’, the activities of government agencies, and parliamentary proceedings. In addition, it is unnecessary that the business be ‘engaged in or carried on for profit’. ‘Document’ is also defined widely as any ‘record of information’, including: (a) anything on which there is writing; or (b) anything on which there are marks, figures, symbols, or perforations having a meaning for persons qualified to interpret them; or (c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else; or (d) a map, plan, drawing or photograph.

The word ‘record’ is not defined in the legislation, but has been judicially defined in the context of similar provisions as a ‘history of events in some form which is not evanescent’. 23 The test for ‘personal knowledge’ is essentially the same as that discussed above under the heading ‘“First-hand” and more remote hearsay’.

7.4.2 Contents of tags, labels and writing Section 70 of the uniform evidence legislation allows a tag or label attached to, or writing on, an object (including a document) to be admitted for its truth, provided that that the tag, label or writing can reasonably be supposed to have been attached or placed in the course of business, and for the purpose of describing or stating the identity, nature, ownership, destination, origin or weight of the object or its contents. This exception can be justified on purely pragmatic grounds. It has no common law equivalent, but is analogous to exceptions contained in ss 81Q, 45 and 35 of the Tasmanian, South Australian and Northern Territory Evidence Acts respectively.

__________________________________________________________________________________________________________________________________________

23 R v Jones and Sullivan [1978] 2 All ER 718, 721. 127

Principles of Evidence

7.4.3 Telecommunications Section 71 of the uniform evidence legislation applies to certain representations contained in documents recording messages transmitted by electronic mail, fax, telegram, lettergram or telex. Such documents ordinarily record the identity of the sender, the date on and time at which the message was sent, and the identity of the recipient. The exception only applies to these details, and not to the actual contents of the message. The exception, which can be justified on pragmatic grounds, is based on exceptions contained in existing legislation in several Australian jurisdictions: see Evidence Act 1929 (SA), s 53; Evidence Act 1977 (Qld), s 75; Evidence Act 1910 (Tas), s 41; and Evidence Act 1906 (WA), s 82.

7.4.4 Statements identifying the parties to a telephone conversation At common law, several members of the High Court have recently recognised a new exception to the hearsay rule for statements made by one party to a telephone conversation identifying the other party to the conversation. The recognition of such an exception was first suggested by Deane J in Walton v R (1989). In Pollitt v R (1992) the exception was endorsed – albeit with varying degrees of enthusiasm and subject to disagreements about its scope – by Mason CJ, Deane, Toohey and McHugh JJ; Brennan, Dawson and Gaudron JJ all refrained from expressing a concluded view. The uniform evidence legislation contains no direct equivalent to this exception, although, depending on the circumstances, such evidence might well fall within the scope of one of the first-hand hearsay exceptions described above. The exception only applies when evidence of what was said during the conversation would be relevant and admissible (other than via the telephone exception), provided that the other party could be identified. In Walton, for example, the deceased was heard arranging to meet someone; if her statement identifying the caller as the accused was admissible to prove that the caller was the accused, then this would obviously have been relevant as original evidence of the fact that the accused and the deceased had arranged to meet one another on the night on which she was last seen alive. The justifications advanced for this exception were two-fold: first, the pragmatic justification that there is a necessity for the evidence: ‘It is a fact of contemporary life that many important conversations take place on the telephone. Inevitably, any witness (other than a participant in the conversation) of what was said in such a telephone conversation will usually be able to give evidence of but one side of the conversation.’24 The second justification is that such statements are likely to be reliable: ‘Remarks made during the course of a telephone conversation are reactive rather than __________________________________________________________________________________________________________________________________________

24 Walton v R (1989) 166 CLR 283, 308 (Deane J) 128

Hearsay: Exceptions to the Rule assertive and would ordinarily carry conviction as to the identity of the other party to the conversation.’25 It is consistent with this second justification that Deane J should confine the exception to cases where ‘the circumstances do not on their face give rise to a significant possibility of fabrication or impersonation’;26 and that McHugh J should confine it to ‘categories of ordinary social and business conversations where there is no real ground for concluding that the identification was fabricated or fictitious’ and exclude from its scope ‘identification made in the course of, or for the purpose of, a criminal venture’. 27 It is, however, less obviously consistent with the rationale advanced for the exception that Mason CJ, Deane and McHugh JJ should extend it to statements of identification made immediately before or after the telephone conversation: as Toohey J observed, ‘such statements can hardly be described as reactive and they are much more open to the possibility of concoction’.28

7.4.5 Contemporaneous statements about a person’s health, etc At common law a person’s out of court statements about their contemporaneous state of mind or emotion or physical sensations can be used as evidence of their truth. This was noted in the previous chapter, under the heading ‘The declarant’s state of mind’. As was also noted, it is unclear whether this is because the evidence falls within the scope of an exception to the hearsay rule, or because such a use of the evidence is not hearsay at all. Such statements can also be used for this purpose under the uniform evidence legislation, with s 72 providing that: The hearsay rule does not apply to evidence of a representation made by a person that was a contemporaneous representation about the person’s health, feelings, sensations, intention, knowledge or state of mind.

Two observations are called for about this exception. The first is to note that the exception is not restricted to first-hand hearsay. This means, for example, that if a person’s representation about their health was based on what they had been told by their doctor rather than on their own perceptions, the representation would nevertheless fall within the scope of the exception. The second point relates to the scope of this exception. Does it merely allow a person’s representations to be used as evidence of their ‘health, feelings, sensations, intention, knowledge or state of mind’? Or does it also allow the use of a person’s ‘health, feelings, sensations, intention, knowledge __________________________________________________________________________________________________________________________________________

25 26 27 28

Pollitt v R (1992) 174 CLR 558, 611 (Toohey J). Ibid, 596. Ibid, 621. Ibid, 611. 129

Principles of Evidence or state of mind’ for a purpose which would otherwise have been classified as hearsay?29 The former view must be correct. Take ‘knowledge’. Section 72 clearly permits a person’s representations to be used as evidence that they ‘knew’ something, assuming such knowledge to be a relevant fact or a fact relevant to a fact in issue. But if s 72 also permitted the fact of such ‘knowledge’ to be used to prove the truth of what the person ‘knew’, then this would clearly spell the end of the hearsay rule. The same is true for ‘state of mind’, given that ‘belief’ is a state of mind. If it is relevant that the maker of the representation held a particular belief then s 72 clearly allows their belief to be established; but surely it can not also have been intended to allow the representation to be used as evidence of the truth of that belief.

7.4.6 Reputation as to relationships and age Section 73 of the uniform evidence legislation creates an exception for evidence of reputation relating to any of the following matters: • whether a person was, at a particular time, or at any time, a married person; or • whether a man and woman cohabiting at a particular time were married to each other at that time; or • a person’s age; or • family history or a family relationship. Sub-sections (2) and (3) place limitations on the availability of the exception in criminal proceedings. One of the purposes of these limitations is to avoid ‘second-hand hearsay of family relationships being tendered against an accused person in incest prosecutions or bigamy charges’.30 This exception rationalises the common law exceptions for reputation and pedigree declarations by deceased persons.

7.4.7 Reputation of public or general rights Section 74(1) of the legislation creates an exception for ‘evidence of reputation concerning the existence, nature or extent of a public or general right’. Subsection (2) restricts the use of this exception in criminal proceedings to evidence either led by the defence or evidence led by the prosecution to rebut reputation evidence led by the defence. This exception rationalises the common law exceptions for reputation and declarations by deceased persons as to public or general rights. A public right is a right affecting the community as a whole. A general right is a right affecting a section of the public. In the __________________________________________________________________________________________________________________________________________

29 As to which, see the discussion in the previous chapter under the heading ‘Implied assertions’. 30 Evidence, ALRC 26, 1985, Vol 1 [710]. 130

Hearsay: Exceptions to the Rule Australian context, an important example of such a right is the ownership by an Aboriginal group or tribe of an area of land. The exception is, therefore, important in establishing a native title claim.

7.4.8 Interlocutory proceedings In interlocutory proceedings parties frequently rely on material contained in affidavits, rather than on the testimony of witnesses. Such material is obviously hearsay. Section 75 of the uniform evident legislation allows the use of such material, providing that: In an interlocutory proceeding, the hearsay rule does not apply to evidence if the party who adduces it also adduces evidence of its source.

Equivalent provisions are found in the rules of most Australian courts. The requirement that the source be identified is not an onerous one; an affidavit, for example, will always identify its maker.

7.5

Summary

7.5.1 Uniform evidence legislation jurisdictions In jurisdictions where the uniform evidence legislation applies: • hearsay evidence possessing dual relevance and admitted for a nonhearsay purpose can also be used for the hearsay purpose: s 60 (discussed in Chapter 6: Hearsay: The Exclusionary Rule); • otherwise, hearsay evidence is only admissible if it falls within the scope of an exception to the hearsay rule; • the availability of an exception depends on several factors including whether the proceedings are civil or criminal, whether the hearsay is firsthand or more remote, whether the maker of the representation is available as a witness, and – in criminal proceedings – whether the evidence is led by the prosecution or the defence; and • many of the first-hand hearsay exceptions are subject to a requirement that reasonable notice be given: s 67. 7.5.1.1 Civil proceedings: first-hand hearsay In civil proceedings under the uniform evidence legislation: • first-hand hearsay is admissible if the maker of the representation is unavailable as a witness or if it would cause undue expense, delay or inconvenience to call them as a witness: ss 63 and 64; and • previous representations made by a witness are also admissible if they were made at a time when the events were fresh in the witness’s memory: s 64(3).

131

Principles of Evidence 7.5.1.2 Criminal proceedings: first-hand hearsay In criminal proceedings under the uniform evidence legislation, first-hand hearsay is admissible in the following situations: • if the maker of a previous representation is unavailable as a witness, evidence of the previous representation may be adduced by the defence: s 65(8); • if the defence has adduced evidence of a previous representation about a matter, the other parties to the proceeding are also permitted to adduce evidence of a previous representation about that matter, provided the maker of the representation is unavailable as a witness: s 65(9); • evidence of a previous representation is also admissible if the maker of the representation is unavailable as a witness and: ❍ the representation was made under a duty: s 65(2)(a); ❍ the representation was made when or shortly after the event to which it relates occurred and in circumstances that make fabrication unlikely: s 65(2)(b); ❍ the representation was made in circumstances that make it highly probable that it is reliable: s 65(2)(c); ❍ the representation was against the interests of the person who made it: ss 65(2)(d) and (7); ❍ the representation was made in the course of giving evidence in Australian or overseas proceedings and the defendant in the case at hand either cross-examined the maker of the representation in those proceedings, or had a reasonable opportunity to do so: ss 65(3), (4), (5) and (6); • previous representations made by a witness are also admissible if they were made at a time when the events were fresh in the witness’s memory: s 66(2). 7.5.1.3 Civil and criminal proceedings: more remote hearsay In both civil and criminal proceedings under the uniform evidence legislation, more remote hearsay is admissible if it meets the terms of a specific exception to the hearsay rule, including those which apply to: • representations contained in business records, where the representation was either made by a person with personal knowledge of the asserted fact, or was based on information supplied by such a person: s 69; • the contents of tags, labels and writing either on or attached to objects: s 70; • representations recording the transmission of various forms of telecommunication: s 71; • contemporaneous representations by a person about their health, feelings, sensations, intention, knowledge or state of mind: s 72; 132

Hearsay: Exceptions to the Rule • representations as to relationships and age, and about the existence, nature and extent of public or general rights: ss 73 and 74; • interlocutory proceedings: s 75.

7.5.2 Non-uniform evidence legislation jurisdictions In jurisdictions where the uniform evidence legislation does not apply: • hearsay evidence is admissible if it falls within the scope of an exception to the hearsay rule; • there are both statutory and common law exceptions; • the most important statutory exceptions are those which apply to business records, the elements of which are generally similar to their equivalent in the uniform evidence legislation; • several important common law exceptions only apply if the maker of the out of court statement is now deceased, including those applying to: ❍ declarations made in the course of duty; ❍ declarations against interest; and ❍ dying declarations; • another important common law exception applies to statements forming part of the res gestae, such statements being admissible if they were made in circumstances which make fabrication unlikely and in conditions of approximate contemporaneity with the events to which they relate; • in recent years, the courts have begun to develop exceptions for the following additional categories of hearsay: ❍ statements by one party to a telephone conversation identifying the other; ❍ reliable hearsay; and ❍ hearsay tending to exculpate a person charged with a crime.

133

Maker testifies Maker of and representation representation unavailable as a was made while witness events fresh in memory

Civil proceedings

It would cause undue expense, delay or inconvenience to call maker as a witness

First-hand

134

Evidence is adduced by the defence

Representation made in course of giving evidence in other proceedings

Representation against interest

Representation reliable

Representation made contemporaneously

Maker testifies and representation was made while events fresh in memory

Maker of representation available as a witness

More remote

Representation made under a duty

Maker of representation unavailable as a witness

Criminal proceedings

Hearsay

Hearsay exceptions: uniform evidence legislation

interlocutory proceedings

representations about public and general rights

representations as to relationship and age

contemporaneous representations about health, feelings, etc

telecommunication transmission information

tags and labels

business records

Principles of Evidence

Declaration made in course of duty

Statement made contemporaneously and in circumstances that made fabrication unlikely

Declaration against interest

Declarant deceased

Statement forms part of business records

Dying declaration

Hearsay exceptions: common law jurisdictions Hearsay

Statement identifies party to a telephone conversation

Other common law and statutory exceptions

Statement is reliable

Arguable exceptions

Criminal proceedings: statement is exculpatory

Hearsay: Exceptions to the Rule

135

CHAPTER 8

OPINION EVIDENCE

8.1

Introduction

8.1.1 Overview This chapter deals with opinion evidence, in particular the evidence of expert witnesses. It begins by stating the rule against opinion evidence, and then deals in turn with the two exceptions to that rule: the opinions of lay witnesses, and the opinions of experts. Most of the chapter is taken up with a discussion of the rules which govern the admissibility of expert evidence.

8.1.2 The rule against opinion evidence The general rule is that witnesses testify to facts, not opinions. This is because it is the task of the jury to decide what significance those facts have. A witness can thus testify that they saw the accused leaving the scene of the crime; but they cannot go on to add that this fact has led them to form the opinion that the accused is guilty. A witness can testify about the precautions taken by a defendant to avoid an accident; but cannot add that they believe the defendant to be negligent. Apart from anything else, the fact that the witness holds such an opinion is unlikely to have any effect on the probability of the accused being guilty or the defendant negligent: it is the facts perceived by the witness which are relevant, not the opinions they may have formed on the basis of those facts. The common law rule is replicated in s 76 of the uniform evidence legislation, which provides that ‘Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed’. An opinion has been defined as ‘an inference drawn from observed and communicable data’.1 It has therefore been held that the opinion rule does not apply to a witness’s assertions about how he or she would have behaved in a situation which is different from that which actually occurred; it does not, in other words, prevent a witness from answering a question in the form ‘What would you have done if ... ?’: see Allstate Life Insurance Co v Australasia & New Zealand Banking Group (No 32) (1996). At both common law and under the uniform evidence legislation, the rule against opinion evidence is, however, subject to two exceptions: the first applying to the opinions of lay witnesses, the second applying to those of experts. __________________________________________________________________________________________________________________________________________

1

See Allstate Life Insurance Co v Australasia & New Zealand Banking Group (No 32) (1996) 136 ALR 627, 629 (Lindgren J). 137

Principles of Evidence

8.2

Lay opinions

In the absolute form stated above, the rule against opinion evidence is completely unworkable, particularly when applied to a witness’s recollection of their contemporaneous sensory perceptions of an event. When a person witnesses something they simultaneously perceive it with their senses and draw unconscious inferences from those perceptions. Those inferences enable the witness to recognise the event or object and to place it in the appropriate mental framework. If a witness is then asked to describe their perceptions alone, without any trace of these inferences, it is unlikely that they will be able to do so. Even if the witness were able to describe their sensory perceptions devoid of all inference, the evidence is unlikely to be very helpful to a jury. For this reason, both at common law and under the uniform evidence legislation, the rule against opinion evidence is applied fairly loosely when it comes to those inferences of a witness which are inextricably linked with their perceptions, or without which evidence of their perceptions will be of little use. Section 78 of the uniform evidence legislation thus provides that: The opinion rule does not apply to evidence of an opinion expressed by a person if: (a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event; and (b) evidence of the opinion is necessary to obtain an adequate account or understanding of the person’s perception of the matter or event.

This is essentially the same test as that which is applied at common law. Lord MacDermott LCJ’s judgment in the case of Sherrard v Jacob (1956) contains a convenient list of common examples of lay opinions which are likely to satisfy this test: 2 • the identification of handwriting, persons or things (including cases where a witness identifies a person by their voice); • a person’s apparent age; • the bodily plight or condition of a person including death and illness; • the emotional state of a person, eg whether distressed, angry, aggressive, affectionate or depressed; • the condition of things, eg whether they are worn, shabby, used or new; • certain questions of value; and • estimates of speed and distance.

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2

Sherrard v Jacob [1965] NI 151, 156. 138

Opinion Evidence

8.3

Expert opinion

Even if a witness could report their sensory perceptions free of any inference or opinion, the jury might lack the expertise to draw the correct inference from those perceptions. This is the basis for the second exception to the rule against opinion evidence: the testimony of experts. There would, for example, be little point in requiring a forensic pathologist who had carried out an autopsy on the deceased merely to recount what he or she had seen, because the jury would clearly be incapable of inferring the cause of death from these facts. The evidence will be of no use to the jury unless the pathologist is also permitted to give his or her opinion about the cause of death. This does not mean that expert witnesses only give opinions: experts also testify to their perceptions, as the forensic pathologist does when he or she describes the state of the deceased’s organs or the nature of their wounds. Where the expert differs from the ordinary witness, though, is that the expert may also be permitted to express an opinion about the inferences which should be drawn from the facts. Nevertheless, there are several dangers associated with the admission of expert evidence, as Dawson J pointed out in Murphy v R (1989): The admission of such evidence carries with it the implication that the jury are not equipped to decide the relevant issue without the aid of expert opinion and thus, if it is wrongly admitted, it is likely to divert them from their proper task which is to decide the matter for themselves using their own common sense. And even though most juries are not prone to pay undue deference to expert opinion, there is at least a danger that the manner of its presentation may, if it is wrongly admitted, give to it an authority which is not warranted. In addition the calling of unnecessary expert evidence tends to prolong a trial, particularly when it provokes the calling of further expert evidence in reply. Moreover there is a risk that the focus of the trial will shift from the evidence of the facts in dispute to the conflict between the competing theories of the various expert witnesses.3

8.3.1 Common law For the reasons above, an expert’s testimony may be ruled inadmissible even though it is relevant to the issues to be decided at the trial. But it is difficult to formulate with any precision the rules which determine the admissibility of expert evidence at common law. One can find in the textbooks, for example, references to the common knowledge rule, the field of expertise rule, the expertise rule, the basis rule and the ultimate issue rule. Even the existence of some of these rules is doubtful, though, and it is probably better to think of a single more general rule such as that expert evidence will be admitted if, and only if, the evidence is likely to assist the jury in its fact-finding task. This __________________________________________________________________________________________________________________________________________

3

Murphy v R (1989) 167 CLR 94, 130–31. 139

Principles of Evidence simple rule can be broken down into two parts, as in the following passage from the judgment of King CJ in R v Bonthyon (1984): (a) whether the subject matter of the opinion is such that a person without instruction or experience in the area of knowledge or human experience would be able to form a sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in the area; and (b) whether the subject matter of the opinion forms part of a body of knowledge or experience which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience, a special acquaintance with which by the witness would render his opinion of assistance to the court.4

There are, in other words, essentially two questions: first, is this an area where the jury needs the assistance of an expert? Secondly, can the proffered expert provide the help which the jury needs? This second question can itself be broken down into two further questions: first, is there a recognised field of expertise to which the courts can turn for assistance; and secondly, is this witness qualified within that field of expertise. Only if the answer to all these questions is in the affirmative will the expert be permitted to testify. These questions are dealt with below under the headings ‘Does the jury need help?’, ‘Is there a recognised area of expertise’ and ‘Is the witness qualified within that area of expertise?’

8.3.2 Uniform evidence legislation Under the uniform evidence legislation, on the other hand, an affirmative answer to the first question above – ‘Does the jury need help?’ – is not a condition of admissibility for expert evidence. Section 79 of the legislation – which contains the exception to the rule against opinion evidence applicable to the testimony of experts – simply provides that: If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.

The exception merely requires, therefore, that there be an area of expertise – or ‘specialised body of knowledge’ – to which the court can turn and that the witness be qualified within it. The only other requirement for admissibility is that the evidence be relevant to the facts in issue. The problem of unnecessary expert evidence is left instead to the general discretion contained in s 135 of the legislation, which permits a court to exclude otherwise admissible evidence on the grounds that it might ‘cause or result in undue waste of time’. The discretion is discussed in Chapter 18: Discretions to Exclude Evidence. In __________________________________________________________________________________________________________________________________________

4

R v Bonthyon (1984) 38 SASR 45, 46–47. 140

Opinion Evidence all probability, however, the factors which determine how that discretion is exercised are likely to be the same factors as those which are taken into account at common law in determining whether or not the proffered evidence is likely to assist the jury. It is to these factors which we now turn.

8.4

Does the jury need help?

As the English Court of Appeal commented in R v Turner (1975), ‘If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of an expert is unnecessary’, and will not be admitted.5 In Australian Oil Refining Pty Ltd v Bourne (1979), for example, the court refused to permit an expert to testify that allowing water to lie on a steel platform would increase the risk of someone slipping: this should be so obvious to anyone that an expert’s opinion is entirely superfluous. The question of whether the jury needs help is often referred to as the ‘common knowledge’ rule; and the subject matter in relation to which this rule is most difficult to apply is the area of human behaviour. Although the question of whether the jury needs help is logically distinct from the question of whether the proffered expert is able to provide that help, in practice the fact that there is an area of expertise or specialised body of knowledge to which the court can turn, may do much to demonstrate that this is indeed an area where the jury would benefit from expert assistance.

8.4.1 A ‘common knowledge’ rule? The idea that an unnecessary opinion will be excluded even if relevant, is often referred to as the ‘common knowledge’ rule. Referring to a ‘common knowledge’ rule suggests that if the jury can be assumed to have some knowledge about the area in question then expert evidence will be inadmissible. In R v Turner (1975), for example, the court suggested that expert evidence is only admissible to furnish the court with information ‘which is likely to be outside the experience and knowledge of a judge or jury’.6 As the Australian Law Reform Commission has commented, however: An expert ... may still be of assistance to the court even in an area about which most people know something. An expert purports to have ‘special’ skill and knowledge about something over and above that of the ordinary man.7

For this reason, s 80(b) of the uniform evidence legislation actually abolishes the ‘common knowledge’ rule; the admissibility of arguably unnecessary expert evidence is instead left to the judge’s exercise of the discretion contained in s 135 of the legislation. As was noted above, s 135 allows the __________________________________________________________________________________________________________________________________________

5 6 7

R v Turner [1975] 1 QB 834, 841 (Lawton LJ). Ibid. Evidence, ALRC 26, 1985, Vol 1 [743]. 141

Principles of Evidence judge to exclude otherwise admissible evidence on the grounds that it would ‘cause or result in undue waste of time’. The existence of an inflexible ‘common knowledge’ rule is also becoming doubtful at common law. Increasingly, courts are allowing experts to testify about matters which do fall within ‘the experience and knowledge of a judge or jury’, for the simple reason that the evidence is likely to assist the tribunal of fact. The question of whether or not the evidence is likely to assist the jury thus appears to be in the process of replacing the question of whether or not the evidence falls within the jury’s ‘common knowledge’ as the test for the admissibility of expert evidence at common law. The two tests are combined in Dawson J’s comment in Murphy v R (1989) that ‘the principle is simply that evidence which is put forward to tell the jury something that is within their own knowledge or experience is not helpful and is not admissible for that reason’.8 If the law continues to develop in its present direction, the common knowledge test should eventually become a subsidiary question, informing – but not determining – the outcome of a new test of admissibility: whether the jury are likely to be assisted by the evidence. Although it is obvious that ‘the distinction between helpful and unhelpful expert evidence cannot of its nature be very precise’,9 the flexibility of this test is undoubtedly its advantage.

8.4.2 Human behaviour It is in the area of human behaviour that courts have the greatest difficulty in deciding whether or not a jury is likely to benefit from expert assistance. The courts are particularly hostile to evidence intended to assist the tribunal of fact to assess the credibility of a witness. It is, for example, impermissible for a psychologist to inform the jury of the reasons why identification evidence is less reliable than it appears, despite the existence of a large body of psychological literature on this very topic: see R v Smith (1987). Allowing such evidence would clearly intrude on the jury’s role as the tribunal of fact. The same is true of evidence designed to explain a person’s behaviour. As the court commented in R v Runjanjic and Kontinnen (1991), ‘The law jealously guards the role of the jury ... as the judge of human nature’.10 Indeed, as the supposed ability of ordinary jurors to understand human behaviour is one of the chief justifications for having juries, allowing experts to testify routinely about human behaviour would deprive trial by jury of much of its point. Thus, in R v Turner (1975), the court commented that:

__________________________________________________________________________________________________________________________________________

8 Murphy v R (1989) 167 CLR 94, 130. 9 Ibid, 130 (Dawson J). 10 R v Runjanjic and Kontinnen (1991) 56 SASR 114, 120 (King CJ). 142

Opinion Evidence Jurors do not need psychiatrists to tell them how ordinary folk who are not suffering from any mental illness are likely to react to the stresses and strains of life.11

The fact that the particular situation or context in which the behaviour occurs is likely to fall outside the experience of jurors is not sufficient to justify the admission of expert evidence. As King CJ pointed out in R v Runjanjic and Kontinnen (1991): Jurors are constantly expected to judge of situations, and of the behaviour of people in situations, which are outside their experience. Much conduct which occupies the attention of the criminal courts occurs in the criminal underworld, or in sordid conditions and situations, of which jurors would generally have no experience. It is not considered to be beyond the capacity of juries ... to judge of the reactions and behaviour of people in those situations ... Nevertheless, some situations or relations, or the attitudes of some categories of persons, may be so special and so outside the experience of jurors, that evidence of methodical studies of behaviour of those categories of persons, may be admissible.12

Until recently, it was often said that psychological or psychiatric evidence about a person was only admissible if the person could be classified as in some way ‘abnormal’. This view was based on statements such as those in Transport Publishing Co Ltd v Literature Board of Review (1956), where the High Court stated that while: ... ordinary human nature, that of people at large, is not a subject of proof by evidence, whether supposedly expert or not ... particular descriptions of people may conceivably form the subject of study and of special knowledge. This may be because they are abnormal in mentality or abnormal in behaviour as a result of circumstances peculiar to their history or situation.13

More recently, however, the High Court has refuted the notion that there is any such rule. In Murphy v R (1989) Mason CJ and Toohey J criticised the statement from Turner above on the basis that it contains several untenable assumptions: To begin with it assumes that ‘ordinary’ or ‘normal’ has some clearly understood meaning and, as a corollary, that the distinction between normal and abnormal is well recognised. Further, it assumes that the common sense of jurors is an adequate guide to the conduct of people who are ‘normal’ even though they may suffer from some relevant disability. And it assumes that the expertise of psychiatrists (or, in the present case, psychologists) extends only to those who are ‘abnormal’. None of these assumptions will stand close scrutiny.14 __________________________________________________________________________________________________________________________________________

11 12 13 14

R v Turner [1975] 1 QB 834, 841 (Lawton LJ). R v Runjanjic and Kontinnen (1991) 56 SASR 114, 120. Transport Publishing Co Ltd v Literature Board of Review (1956) 99 CLR 111, 119. Murphy v R (1989) 167 CLR 94, 111. 143

Principles of Evidence Dawson J agreed that while ‘the difference between normal and abnormal behaviour ... may offer considerable guidance, the true principle does not rest upon the drawing of a line which must often be difficult, if not impossible’.15 Rather, the test is that described above: whether the evidence is likely to be of assistance to the jury, a test which will be informed by the question of whether the evidence can be regarded as falling outside the experience and knowledge of the jury. Some guidance as to how this test will be applied may be had from past decisions: • In Transport Publishing Co Ltd v Literature Board of Review (1956), the High Court held that expert evidence was inadmissible on the question of whether certain ‘love comics’ had a tendency to deprave or corrupt the public. • In DPP v A and BC Chewing Gum (1968), on the other hand, the English Court of Appeal held that expert evidence was admissible on the question of whether certain bubble gum swap cards would have such a tendency in relation to children. • In R v Turner (1975), where the accused pleaded provocation to a charge of murdering his girlfriend, the defence was not permitted to lead psychiatric evidence as to how the accused was likely to have reacted to statements by the deceased that she had been unfaithful to him while he was in prison: as the accused was suffering from no mental illness his behaviour fell within the bounds of the jury’s experience and knowledge. • In Murphy v R (1989), there was a dispute between the police and the accused as to whether or not he had confessed, and the defence wished to lead evidence from a psychologist who had examined the accused, to the effect that his limited intellectual capacity made it unlikely that he would have confessed in the words attributed to him. The High Court held the evidence admissible, notwithstanding that the accused’s intellectual capacity may still have fallen within the ‘normal’ range.

8.4.3 Syndrome evidence It is in relation to ‘syndrome’ evidence that most of the controversy about the admissibility of psychological evidence has arisen. A syndrome can be defined as a ‘constellation of psychological or behavioural signs and symptoms’.16 Evidence that the syndrome exists, or that one of the participants in a trial suffers from it, might be led for the purpose of explaining why the accused or his or her alleged victim might have behaved in a particular way, or might have perceived a situation in a manner different from the way in which persons not suffering from the syndrome might have perceived it. __________________________________________________________________________________________________________________________________________

15 Murphy v R (1989) 167 CLR 94, 130. 16 See Freckelton, I, ‘When Plight Makes Right – the Forensic Abuse Syndrome’ (1994) 18 Crim LJ 29, 31. 144

Opinion Evidence Most syndrome evidence is still so novel that it is difficult to discern any generally accepted method of determining its admissibility. Battered woman syndrome has undoubtedly been treated the most sympathetically. In the South Australian case of R v Runjanjic and Kontinnen (1991), for example, the court declared battered woman syndrome evidence to be admissible, quoting in justification the following passage from the judgment of Wilson J in the Canadian case of R v Lavallee (1990): Expert evidence on the psychological effect of battering on wives and common law partners must, it seems to me, be both relevant and necessary in the context of the present case. How can the mental state of the appellant be appreciated without it? The average member of the public (or of the jury) can be forgiven for asking: Why would a woman put up with this kind of treatment? Why would she continue to live with such a man? How could she love a partner who beat her to the point of requiring hospitalisation? We would expect the woman to pack up her bags and go. Where is her self-respect? Why does she not cut loose and make a new life for herself? Such is the reaction of the average person confronted with the so-called battered wife syndrome. We need help to understand it and help is available from trained professionals.17

This is an interesting justification, because it suggests that expert evidence may be admissible whenever a jury is likely to misunderstand the ways in which people in particular situations tend to behave. The expert evidence thus serves an educative purpose, exploding any myths to which the jury might subscribe, and laying the foundation for an accurate understanding of the person in question’s behaviour.18 Cases in other jurisdictions have since followed Runjanjic in admitting battered woman syndrome evidence. On the other hand, child sexual abuse accommodation syndrome, often offered for the purposes of explaining why a child might have delayed in complaining of abuse, has yet to be accepted as admissible: see C v R (1993) and F v R (1995). Whether syndrome evidence will be accepted in a given case will no doubt depend upon the scientific validity of the syndrome, the use to which the evidence is being put, and the form which the syndrome evidence takes. If the purpose of the evidence is in truth to bolster the credibility of a witness then it will normally fall foul of the prohibition on credibility evidence, although the evidence may be admitted if its purpose is to rehabilitate the credibility of a witness whose credibility has been impeached on the basis of behaviour which can be explained by an expert: see the discussion of evidence used to reestablish credibility in Chapter 14: Credibility Evidence. There are also issues relating to the way in which the expert gives the evidence. In giving ‘syndrome evidence’, for example, an expert might do any of the following:19 __________________________________________________________________________________________________________________________________________

17 R v Lavallee (1990) 55 CCC (3d) 97, 112; quoted in R v Runjanjic and Kontinnen (1991) 56 SASR 114, 122 (King CJ). 18 See Freckelton, I, ‘Counter-Intuitive Evidence’ (1997) 4 Journal of Law and Medicine 303. 19 See Fischer, K, ‘Defining the Boundaries of Admissible Expert Psychological Testimony on Rape Trauma Syndrome’ (1989) University of Illinois LR 691, 717. 145

Principles of Evidence • explain the ways in which certain classes of people have been found to behave (such ways being contrary to what common sense would suggest), without mentioning the existence of the syndrome; • explain the general theory behind the syndrome and list the constellation of symptoms and behaviour that constitute its diagnosis; • list the victim or accused’s behaviour and symptoms without giving an opinion about the meaning of those symptoms; • testify that the victim or accused’s symptoms are consistent with the syndrome; • diagnose the victim or accused as suffering from the syndrome; or • draw relevant inferences from the fact that the victim or the accused suffers from the syndrome, or make predictions about the way in which the victim or accused might have behaved in a specific situation given that he or she suffers from the syndrome. The further down this list the expert goes, the more they might be thought to be unacceptably usurping the role of the jury. On the other hand, expert evidence which is not specifically related to the person in question may not be particularly helpful to the tribunal of fact: see, for example, the comments of the court in F v R (1995). The challenge for the court, then, is to allow the expert to give their evidence in a form which is of assistance to the jury but which does not unduly encroach on the jury’s role.

8.5

Can this expert provide the help the jury needs?

If the jury needs help, then the next question to consider is whether the proffered expert can provide the help the jury needs. The answer to this question depends on three subsidiary questions, the first two of which go to the admissibility of the evidence and the third of which is only relevant to the court’s exercise of its general discretion to exclude otherwise admissible evidence. The questions are whether there is a recognised area of expertise or specialised body of knowledge to which the courts can turn for assistance; whether the ‘expert’ is in fact qualified within that area of expertise; and whether the evidence is potentially unreliable or confusing.

8.5.1 Is there a recognised area of expertise? In the passage from R v Bonthyon (1984) quoted above, King CJ stated as a criterion of admissibility for expert evidence the question ‘whether the subject matter of the opinion forms part of a body of knowledge or experience which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience’.20 This criterion is intended to guard against the __________________________________________________________________________________________________________________________________________

20 R v Bonthyon (1984) 38 SASR 45, 47 (King CJ). 146

Opinion Evidence admission of opinions based on theories which may sound scientific but which lack a proper scientific foundation or methodology and which may therefore be regarded as ‘junk science’; and opinions based on theories which are as yet unproven and which may therefore be regarded as unduly speculative. The test is only really of relevance, however, at the frontiers of knowledge, and once an area of expertise is accepted by the courts as sufficiently reliable it is likely to remain so. Examples of evidence which have been subjected to – and have passed – this test include fingerprinting, DNA profiling, and battered woman syndrome evidence. The precise test to be applied is, however, a matter of some uncertainty. Two approaches stand out. The first is for the court to form its own opinion about the reliability of the area of expertise in question; the second is for the court to defer its judgment to that of the relevant expert community. Under the first approach, the court asks whether the science in question is scientifically reliable; under the second it asks whether the science in question is considered by scientists to be scientifically reliable. The second approach is often referred to as the Frye test after the United States judgment in which it was adopted: Frye v United States (1923). In Frye, the United States Court of Appeals for the District of Columbia commented that: Just when a principle crosses the line between the experimental and the demonstrable stages is difficult to define. Somewhere in this twilight zone, the evidential force of the principle must be recognised, and while the courts will go a long way in admitting expert testimony deduced from a well-recognised scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field to which it belongs.21

The chief advantage of the Frye test is that it places the decision about the reliability of expert evidence in the hands of those best placed to make that decision: other experts working in the field. Its chief disadvantage is that it is conservative, and may thus lead to the exclusion of perfectly reliable evidence which, because of its novelty, has yet to gain general acceptance. The ‘general acceptance’ test has also been criticised on the grounds that it is often difficult to identify the expert community whose ‘general acceptance’ is necessary; that it is often difficult to tell whether or not the point of ‘general acceptance’ has been reached; and that it requires courts to defer to experts about matters which are properly the prerogative of the courts. Although no authoritative Australian case has expressly adopted Frye as the test for the admissibility of novel expert evidence, there are several which have used ‘general acceptance’ as a criterion of admissibility: see, for example Carroll v R (1985), R v Lewis (1987) and R v Runjanjic and Kontinnen (1991); but see J v R (1994) for a contrary view. __________________________________________________________________________________________________________________________________________

21 Frye v United States 293 F 1013, 1014 (1923). 147

Principles of Evidence In the United States, on the other hand, Frye has now been rejected in favour of the first of the two approaches described above. In Daubert v Merrell Dow Pharmaceuticals (1993) the United States Supreme Court held that the following criteria should be flexibly applied to determine the admissibility of novel scientific evidence: falsifiability, peer review and publication, known or potential rate of error and general acceptance. The obvious problem with the Daubert approach is that it requires judges to make decisions for which they are poorly qualified. Most judges are neither scientists, nor have scientific training; yet a Daubert-type test clearly requires judges to make scientific, rather than legal, judgments. Another problem is the difficulty of applying criteria such as falsifiability to areas of expertise such as the social sciences or psychology. It remains an open question which, if any, of these two approaches to the admissibility of novel expert evidence Australian courts are eventually likely to adopt. The uniform evidence legislation does nothing to resolve this question. Section 79 refers to specialised knowledge, but the legislation contains no guidance as to what constitutes specialised knowledge. Both the Frye and Daubert approaches therefore remain open.

8.5.2 Is the witness qualified within that area of expertise? Assuming that the court accepts that there is a field of expertise to which it can turn for assistance, the second question is whether the proposed witness is actually qualified in that field. Although there is some uncertainty at common law, the better view is that expertise can be gained either through formal study or through practical experience: see Weal v Bottom (1966). The uniform evidence legislation removes all uncertainty, with s 79 referring to ‘specialised knowledge based on the person’s training, study or experience’. This is not to say that the source of a witness’s expertise is irrelevant to the weight which their evidence should be given; but it is irrelevant to its admissibility. The fact that a witness is ‘qualified’ to give expert evidence does not, however, confer on the witness a licence to deliver his or her opinions at large. An expert witness will only be permitted to testify on matters which fall within his or her field of expertise. In Murphy v R (1989), for example, Dawson J made the following comment about a report prepared by a psychologist for the defence: Some of the opinions expressed in the report would appear to extend beyond the expertise of Mr Sharpe. In particular, there is nothing to indicate that his qualifications as a psychologist would equip him to express an opinion whether the use in the record of interview of phrases and sentence structures was uncharacteristic of the applicant.22

__________________________________________________________________________________________________________________________________________

22 Murphy v R (1989) 167 CLR 94, 129. 148

Opinion Evidence The witness must always stay, therefore, within the boundaries of their expertise and should not be invited by counsel to answer a question which their expertise does not qualify them to answer. In F v R (1995), for example, a paediatrician was permitted to give evidence about child sexual abuse accommodation syndrome; the appeal court, however, held that this testimony fell outside the area of her expertise.

8.5.3 Is the evidence unreliable or confusing? As we have seen above, the law’s focus in determining the admissibility of expert evidence is on the validity of the evidence’s theoretical foundations and general methodology. In practice, however, the reliability of expert evidence is far more likely to be affected by the competence with which the science has been performed, rather than the soundness of the theories on which it is based.23 Australian courts have, however, refused to accept that the reliability of the work carried out by the expert – as opposed to the reliability of the theories on which it is based – is a matter going to the admissibility of the evidence. In R v Jarrett (1994), for example, Mullighan J of the South Australian Supreme Court held that ‘where the issue is whether or not the expert witness did employ well-recognised and accepted techniques or undertook the work competently, that is a matter for the jury’.24 Often there will be a conflict between experts about the competence of the work carried out by one of them, the reliability of the procedures employed, or the inferences drawn from the primary facts. Given that the only reason why the experts are being permitted to testify is that the area lies outside the experience and knowledge of the jury, the jury is hardly the ideal forum for resolving such issues. The courts have nevertheless insisted that: ... conflicts of evidence are to be resolved by the jury as the constitutional judge of fact ... The evidence of scientific witnesses does not provide an exception to this rule ... If one body of expert evidence is said not to be credible for reasons advanced by the opposing experts, and the reasons are themselves the subject of testimonial conflict between the credible witnesses, it must be left to the jury to say whether those reasons are valid to show that the first body of expert evidence should not be acted on.25

In criminal proceedings some courts have, however, used the general discretion to exclude evidence more prejudicial than probative (which is discussed in Chapter 18: Discretions to Exclude Evidence) to exclude scientific evidence which the court feared might be difficult for the jury to evaluate properly. In R v Elliott (1990), for example, Hunt J held that scientific evidence could be excluded in the exercise of the discretion if the evidence: __________________________________________________________________________________________________________________________________________

23 See Bourke, J, ‘Misapplied Science: Unreliability in Scientific Test Evidence’ – Parts 1 and 2 (1993) 10 Australian Bar Review 123 and 183. 24 R v Jarrett (1994) 62 SASR 443, 453. 25 Chamberlain v R (No 2) (1984) 153 CLR 521, 598 (Brennan J). 149

Principles of Evidence ... is unreliable or if it has a tendency to produce a misleading or confusing impression for the jury, or if the weight to be afforded to the results is so minimal as to preclude the jury being satisfied beyond reasonable doubt that the Crown has established the fact which it seeks to prove ...26

In Elliott, and in the subsequent cases of R v Tran (1990) and R v Lucas (1992), the evidence concerned was DNA profiling evidence. In Lucas Hampel J justified the discretionary exclusion of such evidence in the case before him on the grounds that: DNA testing is widely regarded as extremely reliable and discriminating. Its limitations and particularly limits as to the conclusions which can be drawn from the tests are not widely appreciated. The jury has no basis on which it can evaluate the evidence.27

These cases do not stand for the proposition that DNA profiling evidence is a particularly unreliable class of evidence that ought ordinarily to be excluded in the exercise of the judge’s discretion. They do suggest, however, that the discretion provides a vehicle for excluding expert evidence where there are doubts about the reliability of the evidence, or concerns about the jury’s capacity to determine the weight which should be given to the evidence or to resolve conflicts between opposing experts. The same approach could equally be taken under s 135 of the uniform evidence legislation, which is discussed in Chapter 18: Discretions to Exclude Evidence.

8.6

Other limitations on an expert’s testimony

There are two other limitations on the testimony of experts which require consideration: the so-called basis and ultimate issue rules.

8.6.1 The basis rule An expert’s opinion will often be based on assumptions or premises which the expert him or herself may be unable to prove. An expert might, for example, form an opinion based on assumptions about the facts of the case; or an expert’s conclusions might depend on work carried out by others. If the factual premises on which an opinion is based are false, then it obviously follows that the opinion itself is also likely to be false; and if the factual premises of the opinion are not exposed to scrutiny, then it is equally obvious that it will be difficult for the tribunal of fact to determine the weight which the opinion should be given. If, however, the expert him or herself attempts to prove the facts on which his or her opinion is based without having any personal knowledge of those facts, then the hearsay rule will clearly be infringed. __________________________________________________________________________________________________________________________________________

26 R v Elliott (1990) unreported, Supreme Court of New South Wales, 6 April. 27 R v Lucas [1992] 2 VR 109, 118 (Hampel J). 150

Opinion Evidence The question raised by this problem is whether an expert’s opinion is only admissible if the basis of his or her opinion is proved; or whether failure to prove the bases of an opinion merely goes to the weight which the opinion should be given. In answering this question, the courts tend to distinguish between two different kinds of factual basis for an opinion: facts peculiar to the case and facts of general application. The former category would, in respect of a medical opinion, for example, include ‘the symptoms, sensations and occurrences which are commonly the subject of a patient’s “history” to a physician, and on which the physician relies in forming a diagnostic opinion’.28 The latter category includes: ... information of the type which scientific experts of the relevant categories ordinarily treat as data on which they may rely in forming opinions and making decisions within the area of their expertise. Included in such data are facts and opinions stated in articles or reports in scientific publications or in statements by organisations, public authorities or person regarded by such experts as having knowledge and expertise in the relevant area.29

The approach generally taken by the courts has been to require direct proof of those facts which are peculiar to the case, while allowing the expert to give evidence of those facts which are of general application, notwithstanding that such evidence is hearsay.30 It is, moreover, desirable that the expert should at least refer to the general material on which their opinion is based ‘so that the cogency and probative value of their conclusion can be tested and evaluated by reference to it’.31 This does not resolve, however, the question of whether failure to prove the basis of an opinion renders the opinion inadmissible, or whether it merely means that the opinion will be given little or no weight. The High Court has not yet provided a definitive answer to this question and authority can be advanced for either view. It may be significant, however, that most of the decisions assuming the existence of an exclusionary rule were made in the context of criminal proceedings, while most of those assuming that proof of the basis of an opinion merely goes to the weight which that opinion should be given were made in the context of civil proceedings.32 Under the uniform evidence legislation, however, the absence of any exclusionary basis rule clearly means that proof of the basis of an opinion goes to the weight, rather than the admissibility, of expert opinion evidence. That said, failure adequately to prove the basis of an opinion, whether peculiar or __________________________________________________________________________________________________________________________________________

28 PQ v Australian Red Cross Society [1992] 1 VR 19, 36. 29 Ibid, 34. 30 See, for example, Borowski v Quayle [1966] VR 382, R v Abadom [1983] 1 WLR 126, 131, Murphy v R (1989) 167 CLR 94, 131 and PQ v Australian Red Cross Society [1992] 1 VR 19, 34 and 36. 31 R v Abadom [1983] 1 WLR 126, 131. 32 Contrast, for example, Fizzell v R (1987) 31 A Crim R 213 and R v Perry (1990) 49 A Crim R 243, 249, on the one hand, with Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141, 162–62 and PQ v Australian Red Cross Society [1992] 1 VR 19, 36, on the other. 151

Principles of Evidence general, may so deprive the opinion of probative value that it should properly be excluded in the exercise of the judge’s discretion.

8.6.2 An ultimate issue rule? It has traditionally been said that an expert is not permitted to express an opinion about the ultimate issue in the trial, where the ‘ultimate issue’ signifies one of the crucial questions of fact to be determined by the judge or jury. The ultimate issue rule is thus intended to prevent the jury’s role from being unduly encroached upon by experts. It is, however, ‘doubtful that there is now an absolute rule precluding an expert witness from expressing a view as to the ultimate issue’.33 If such a rule existed it would require the exclusion of much evidence that is now routinely admitted: It would, for example, preclude expert opinion that a bullet admittedly fired by an accused was the cause of death in a case where the only defence to a charge of murder was that death had resulted from some other cause.34

The best way of looking at the ‘rule’ may therefore be that it acts as a reminder of the need for the court to closely monitor the expert’s testimony and ensure that the expert does not unnecessarily impinge on the province of the jury. To the extent that the rule does exist at common law, it is expressly abolished by s 80(1) of the uniform evidence legislation.

8.7

Summary

At both common law and under the uniform evidence legislation: • evidence of a witness’s opinion about a relevant fact is prima facie inadmissible; • non-expert witnesses may, however, give evidence of their opinion if the opinion is based on their perceptions and if a proper account of the perceptions can not be given unless evidence of the opinion is also given; • expert witnesses may give evidence of their opinions if: ❍ they are qualified within a recognised field of expertise or specialised knowledge; and ❍ evidence of their opinion would be helpful to the tribunal of fact; • an expert witness may be qualified through training, study or experience; • the test for whether a field of expertise or specialised knowledge is sufficiently recognised is unclear, but probably involves a consideration of the degree to which the particular field has gained acceptance in the relevant expert community; __________________________________________________________________________________________________________________________________________

33 Murphy v R (1989) 167 CLR 94, 110 (Mason CJ and Toohey J). 34 Ibid, 127 (Deane J). 152

Opinion Evidence • at common law, the requirement of helpfulness currently takes the form of the ‘common knowledge’ rule which provides that an expert may only testify on matters falling outside the experience and knowledge of the tribunal of fact; • under the uniform evidence legislation, on the other hand, the requirement of helpfulness will probably be imposed by means of the exclusionary discretion contained in s 135.

153

Principles of Evidence

Opinion evidence No

Is the opinion relevant? Yes No

on m m w Co la

U ev nif le id or gi e m sla nc tio e n

Is the witness an ‘expert’?

Is the opinion necessary to obtain a proper account of the witness’s perceptions?

No

THE

Yes THE OPINION IS ADMISSIBLE

Does the tribunal of fact need an expert’s assistance to draw the correct inference?

No

EVIDENCE IS INADMISSIBLE

Yes Is the witness qualified within a recognised field of expertise or specialised body of knowledge?

No

rm fo ce ni en on U id ati ev gisl le

Co m la mo w n

Yes

Does the tribunal of fact really need an expert’s assistance to draw the correct inference? Yes THE EVIDENCE IS ADMISSIBLE 154

No

The evidence may be excluded by discretion on the grounds that it would be time-wasting

CHAPTER 9

ADMISSIONS

9.1

Overview

This chapter is one of two dealing with the admissibility of admissions made by the parties to civil or criminal proceedings, when used as evidence against the party who made them. Any other use of an admission is dealt with by the rules set out in the chapters on hearsay. For example, the hearsay rule deals with cases where an accused person wishes to prove their own innocence by showing that another person confessed to the crime. The hearsay rule also prevents one person’s admissions being used as evidence against another. If a suspect admits, for example, that he and another person jointly committed a crime, then the admission can be used to prove his own guilt, but not the guilt of the person who, he claims, committed the crime with him. This chapter deals with matters common to both civil and criminal proceedings, such as the definition of admissions, including vicarious admissions, and the question of personal knowledge. It then deals with the admissibility of admissions in civil proceedings, before turning to the topic of ‘implied admissions’ and ‘admissions by conduct’. Finally, it deals with the use of an accused person’s silence as an ‘implied admission’ of guilt. The next chapter contains the rules which determine the admissibility of admissions by the accused in criminal proceedings.

9.2

Definition

9.2.1 What is an admission? In its strictest sense, an ‘admission’ is a representation: • made other than in the course of giving evidence in the proceedings; • by a person who is or becomes a party to the proceedings; • which is adverse to that person’s interest in the outcome of the proceedings; and • which is offered in order to prove the truth of the representation. This definition, a modified version of that contained in the uniform evidence legislation, highlights the fact that admissions are – strictly speaking – a form of hearsay evidence. At common law, then, the rules which determine the admissibility of admissions are in fact exceptions to the hearsay rule. In practice, though, they operate as independent rules of admissibility. The uniform evidence legislation recognises this reality by placing the admissions

155

Principles of Evidence rules in a separate part of the legislation (Part 3.4), and providing that the hearsay rule does not apply to evidence of an admission (s 81). The hearsay rule does still apply, however, if evidence of the admission is not ‘first-hand’ (s 82; the meaning of this was discussed in Chapter 7: Hearsay: Exceptions to the Rule) or if the evidence is being used against ‘a third party’ (see s 83). The first point to note about the definition of admission contained in the uniform evidence legislation is that it was deliberately drafted to include the formal admissions made by the parties to civil proceedings in their pre-trial pleadings.1 This is at odds with the approach at common law, where formal admissions are regarded as a method of defining the issues which must be proved at trial, rather than as a form of evidence. This work follows the approach of the common law, with formal admissions being discussed in Chapter 20: Matters of which Proof need not be Given. Included in this chapter, however, are admissions made by the parties to civil proceedings in response to sworn interrogatories, because the answers to interrogatories are indeed a form of evidence. The second point requiring clarification is the meaning of the phrase ‘adverse to the person’s interest in the outcome of the proceedings’. A representation would clearly be adverse to a party’s interest in the outcome of the proceeding if it acknowledged the whole of their opponent’s case. For example, a person charged with murder might admit to the police that he had deliberately killed the deceased. A representation would also be adverse to a party’s interest in the proceeding if it merely acknowledged an aspect of their opponent’s case. For example, the accused might admit that he killed the deceased, even though claiming to have done so accidentally, or in selfdefence. A representation would also be adverse to the party’s interest in the outcome of the proceeding if it acknowledged the truth of a proposition which provided circumstantial support for the opponent’s case. For example, the accused might deny killing the deceased, but admit that an object found at the scene of the crime was his, or that he had met the deceased on the night of her death. The third point requiring clarification is the form the ‘admission’ must take. It is worth emphasising at the outset that an admission need not be made to a civil litigant’s opponent or to the police. It might, for example, be made to a friend, during an informal conversation, or in a letter.

9.2.2 Vicarious admissions An admission, as already noted, can only be used as evidence against the person who made it. There are, however, a series of exceptions to this general rule, situations where one person’s admission can be used against another. The universality of the general rule can be maintained, however, through the __________________________________________________________________________________________________________________________________________

1

See Evidence, ALRC 26, 1985, Vol 1 [755]. 156

Admissions concept of vicariousness: that is, by saying that in these situations the person against whom the admission is offered as evidence did actually make the admission, albeit vicariously. The uniform evidence legislation provisions eliminate some of the more obscure categories of vicarious admission – such as admissions by predecessors in title or referees – but maintain the most important categories, such as admissions by agents, employees and coconspirators: s 87(1). Where the person making the admission is an agent of the party against whom the admission is being led, the question is whether the making of the admission fell within the scope of the agent’s authority to act on behalf of the party: see s 87(1)(b) of the uniform evidence legislation and TPC v TNT Management Pty Ltd (1984). Similarly, where the person making the admission is an employee of the party against whom the admission is being led, the question is whether the making of the admission fell within the scope of the employee’s employment: see s 87(1)(b) of the uniform evidence legislation. In both categories, then, the key question is whether the making of the admission fell within the scope of the agent or employee’s authority to act on behalf of the party. Agents and employees are, however, seldom specifically authorised to make admissions. What the requirement of authorisation usually means in practice, therefore, is that the agent or employee must have been authorised to hold the conversation in the course of which, or discuss the subject matter in relation to which, the admission was made. An admission by one partner to a business can also be used as evidence against the other partners to the business, provided that the admission related to the affairs of the partnership and was made in the ordinary course of the partnership’s business. This common law rule has been confirmed by partnership legislation in each of the Australian jurisdictions.2 What is true for business partnerships is also true for ‘partners in crime’: see s 87(1)(c) of the uniform evidence legislation and Tripodi v R (1961). When two or more persons have joined in a criminal enterprise, any acts or statements made by one of the parties to the enterprise may be used as evidence against any of the others, provided that the acts or statements were done or made in order to further their common purpose. This rule applies in any case where it is alleged that a crime has been committed pursuant to a common purpose or plan; this includes, but is not restricted to, cases where the accused are charged with conspiracy. Before such evidence is admissible, however, it must first be proved that the parties were indeed engaged in a common criminal enterprise; as to how this may be proved, see Ahern v R (1988).

__________________________________________________________________________________________________________________________________________

2

See Partnership Act 1892 (NSW), s 15; Partnership Act 1958 (Vic), s 19; Partnership Act 1891 (Qld), s 18; Partnership Act 1895 (WA), s 22; Partnership Act 1891 (SA), s 15; Partnership Act 1891 (Tas), s 20; and Partnership Act 1963 (ACT), s 19. 157

Principles of Evidence

9.2.3 Personal knowledge Neither at common law nor under the uniform evidence legislation is there a rule requiring that in order for an admission to be admissible against the person who made it, that person must have had personal knowledge of the facts admitted: Lustre Hosiery Pty Ltd v York (1935). The lack of such a rule seems at odds with the general justification for admitting admissions: that statements made against interest can be assumed to be reliable. Where an admission is made without personal knowledge of the facts admitted, that assumption can clearly not be made. The fact that the person making the admission had no knowledge of the facts admitted may, however, so deprive the admission of evidential value that it should be regarded as inadmissible on the grounds of irrelevance: see, for example, Comptroller of Customs v Western Lectric (1966) and Horne v Comino (1966).

9.3

Admissions in civil proceedings

The rules governing the admissibility of admissions in civil proceedings are very simple in comparison to those which apply in criminal proceedings. As far as the common law is concerned, it is sufficient to say that the admissions of the parties are admissible as evidence against them, in exception to the hearsay rule. Under the uniform evidence legislation, on the other hand, admissions in civil proceedings must meet the requirements of s 84, discussed in the next chapter: Admissions and Confessions by the Accused, under the heading ‘Violence and other conduct’.

9.4

‘Implied admissions’ and ‘admissions by conduct’

The word ‘admission’ is often given a very broad meaning, encompassing almost any statement or conduct by a party to litigation which occurs after the events out of which the litigation arose, and which is consistent with their opponent’s case or inconsistent with their own. Thus lies, flight, failure to deny accusations of guilt, suborning witnesses to give false evidence or concealing evidence, are all sometimes described as ‘implied admissions’ or ‘admissions by conduct’. In a criminal case, such behaviour may provide the basis for an inference that the accused is conscious of his or her guilt. In a civil case it may provide a basis for an inference that a party is conscious of his or her liability or of the weakness of his or her case. The behaviour can thus be seen as impliedly acknowledging the truth of the opponent’s case. The problem with this broader usage is that – at common law – it tends to raise the spectre of the hearsay rule. The extension of the hearsay rule at common law to implied assertions means that almost any incriminating behaviour could in theory be regarded as hearsay: see the discussion of implied assertions in Chapter 6: Hearsay: The Exclusionary Rule. It might be argued, for example, that the fact that the accused had fled from the 158

Admissions jurisdiction is the basis for an inference that he or she believed himself to be guilty, and that the evidence is being used to prove the truth of that belief. But this argument surely misrepresents the way in which evidence of the accused’s flight is actually being used. The true argument for relevance is that by running away the accused has behaved in a manner more consistent with guilt than with innocence, from which the jury may choose to infer that he or she is in fact guilty. In other words, the evidence is circumstantial or original, rather than testimonial in nature, so falls outside the scope of the hearsay rule at common law.3 It is, however, arguable that this kind of behaviour falls within the uniform evidence legislation’s definition of an ‘admission’, and therefore within the scope of the rules for admissions contained in Part 3.4 of the legislation. An admission is defined in the legislation’s dictionary provisions as a ‘previous representation’ which is ‘adverse to the person’s interest in the outcome of the proceedings’. Representation is defined broadly to include ‘an express or implied representation’ and ‘a representation to be inferred from conduct’. Verbal conduct such as lying might well be regarded as falling within the scope of this definition, on the basis that a lie is obviously a representation. Given, however, that the relevance of a lie actually depends on the falseness of the representation it contains, the better view might be that a lie is to be regarded as an item of circumstantial evidence falling outside the scope of the admission rules. The uniform evidence legislation does not actually require, however, that a representation be offered as proof of its truth in order for it to be regarded as an admission. This clearly leaves the door open to treating lies as admissions. But if it is artificial to treat a lie as a representation for the purposes of the definition of admissions, then it is far more artificial to so regard behaviour such as flight or suborning witnesses to give false evidence. Such evidence is surely circumstantial in nature. The better view, then, is that behaviour such as lying, fleeing the jurisdiction, or failing to deny an accusation of guilt is simply circumstantial evidence from which guilt can be inferred. That being so, consideration of the hearsay rule at common law and of the admission rules under the uniform evidence legislation should be entirely unnecessary. The jury may, however, have to be carefully instructed about how to use such evidence. In particular, the jury should be informed of any possible innocent explanations for the behaviour, and of any conditions of which it should be satisfied before it can use the behaviour as evidence of guilt.4

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3 4

See Palmer, A, ‘Guilt and the Consciousness of Guilt: The Use of Lies, Flight and Other “Guilty Behaviour” in the Investigation and Prosecution of Crime’ (1997) 21 MULR 95, 98. See Edwards v R (1993); and Palmer, ‘Guilt and the Consciousness of Guilt: The Use of Lies, Flight and Other “Guilty Behaviour” in the Investigation and Prosecution of Crime’ (1997) 21 MULR 95, 101.

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9.5

Silence as an admission

There is one type of ‘admission by conduct’ which requires separate treatment. This is an accused person’s silence in the face of an accusation of guilt. Like lies, flight or suborning witnesses, silence in the face of an accusation of guilt can be seen as behaviour which is more consistent with guilt than with innocence, on the basis that one might expect an innocent person to protest their innocence. Such an inference need not be restricted to criminal cases: silence in the face of an accusation of civil liability could easily be used in the same way. In criminal cases, however, there is an additional complication: the fact that no adverse inferences may be drawn against an accused person on account of the fact that he or she chose to exercise their right to silence.

9.5.1 The right to silence defined The right to silence has two aspects. The first aspect is the right of a suspect to say nothing in response to police questioning. This can be referred to as the actual ‘right to remain silent’. The right to remain silent is often considered to be a particular manifestation of the privilege against self-incrimination, which is discussed in Chapter 17: Privilege and Immunity. In Petty and Maiden v R (1991), Mason CJ, Deane, Toohey and McHugh JJ affirmed that: A person who believes on reasonable grounds that he or she is suspected of having been a party to an offence is entitled to remain silent when questioned or asked to supply information by any person in authority about the occurrence of an offence, the identity of the participants, and the roles which they played.5

The fact that the accused has been given the customary caution – along the lines that ‘You are not obliged to say anything but anything you do say may be given in evidence against you’ – will clearly provide the basis for a belief on reasonable grounds that the accused is suspected of having been a party to an offence. But the mere fact that the caution has not been given does not necessarily mean that there are no grounds for such a belief. The second, and more controversial, aspect of the right to silence is the right not to have that silence used against one at trial. It is often argued that a person’s silence is evidence of guilt. The argument is that an innocent person confronted by the police with an allegation of criminality would wish to clear their name and would therefore co-operate with the police. As Bentham once remarked, ‘innocence claims the right of speaking, as guilt invokes the privilege of silence’.6 In other words, as only the guilty would remain silent in the face of police questioning, silence is evidence of guilt. Alternatively, a __________________________________________________________________________________________________________________________________________

5 6

Petty and Maiden v R (1991) 173 CLR 95, 90. Bentham, J, A Treatise on Judicial Evidence, 1825, London: JW Paget, p 241. 160

Admissions person’s silence might be used to cast doubt on a defence which is only revealed at some later point: the argument would be that if the facts forming the defence were true, the suspect would have revealed them to the police when questioned.

9.5.2 Abolition of the right to silence When people talk about abolishing the right to silence it is usually this second aspect of the right which they have in mind. If this aspect of the right to silence were abolished, then it would be permissible for the jury to draw adverse inferences from a suspect’s refusal to answer police questions: silence would be circumstantial evidence of guilt. This is now the law in England and Wales as a result of the enactment of ss 34 to 38 of the Criminal Justice and Public Order Act 1994. In Australia, however, the High Court has affirmed that the right to silence remains part of the common law of Australia. In Petty and Maiden v R (1991) the majority of the court stated that to ‘draw such an adverse inference would be to erode the right to silence or to render it valueless’.7 An accused person’s exercise of their right to remain silent cannot, then, be used in any way whatsoever against them. Section 89 of the uniform evidence legislation preserves this common law rule, although at the time of writing several Australian jurisdictions, including New South Wales, Victoria, South Australia and the Northern Territory, have begun inquiries into the right to silence. The standard arguments for the abolition of the right to silence are: • that the exercise of the right to silence is probative of guilt, and there is insufficient reason to deny the tribunal of fact access to this information; • that the exercise of the right to silence enables criminals to withhold their defences until trial, thereby preventing the police from subjecting the defence to any investigation; as a result a guilty person may be able to ambush the prosecution at trial with a defence which can not be refuted, thereby increase their chances of securing an unjustified acquittal; • that the right to silence is ‘abused’ by hardened criminals as a means of hampering police investigations, and that its exercise should therefore be discouraged by attaching a penalty to it; and • that the right to silence is no longer necessary in an era where the dangers of verballing and other unethical police behaviour have largely been countered (or can at least be more effectively monitored) through the widespread tape recording of police interviews with suspects.

7

Petty and Maiden v R (1991) 173 CLR 95, 99.

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Principles of Evidence The standard arguments for its retention, on the other hand, are: • that exercise of the right to silence is evidentially irrelevant, because its exercise is more likely to be due to basic structural features of the investigative process, or to other innocent reasons, than to guilt;8 • that the right is a necessary corollary of the fact that in our adversarial system of justice the burden of proving guilt lies on the prosecution; if the burden of proof is on the prosecution and suspects are presumed innocent, then a suspect should be under no obligation to assist the police to construct the case against them; • that the right is consistent with our notions of what constitutes a fair investigation, ie, that a suspect should not be coerced (either directly, or by having their silence admitted as evidence of guilt) into co-operation; and • that the right protects the innocent from wrongful conviction, the risk of wrongful conviction arising from the fact that a suspect will frequently be asked to answer police questions at a time when they do not know the evidence, or possibly even the full details of the allegations, against them; from the fact that the record of interview may not provide a true reflection of the suspect’s position; from the fact that suggestible suspects may confess to crimes of which they are innocent, or make admissions about matters which are not in fact true; and from the fact that the record of interview of even an innocent suspect may contain inconsistencies and falsehoods which may be wrongly construed as evidence of guilt and imprecise statements which may be wrongly construed as admissions. There is a great deal of literature, particularly from England, about the justification for these arguments.9 In the end, given the relatively small numbers of suspects who actually exercise the right to silence, the symbolism of the abolition or retention of the right may matter as much as any impact abolition or retention might have on the rates of unjustified acquittal or wrongful conviction.

9.5.3 Non-exercise of the right to silence If the accused fails actually to exercise their right to silence in response to police questioning, however, then their answers – and non-answers – may be used against them. If, for example, the accused responds selectively to police questions – answering some but refusing to answer others – then this may be used as the basis for an inference that they are conscious of their guilt: Woon v __________________________________________________________________________________________________________________________________________

8 9

See McConville, M and Hodgson, J, Custodial Legal Advice and the Right to Silence, 1993, Royal Commission on Criminal Justice Research Study No 16, London: HMSO. See, for example, the numerous research studies carried out for the Royal Commission on Criminal Justice, Report, Cm 2263, 1993, London: HMSO; and Morgan, D and Stephenson, G (eds), Suspicion and Silence: The Right to Silence in Criminal Investigations, 1994, London: Blackstone Press.

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Admissions R (1964). This aspect of the common law has arguably, however, been overturned by s 89(1)(a) of the uniform evidence legislation, which stipulates that no adverse inference may be drawn from the fact that the accused failed or refused ‘to answer one or more questions’.

9.5.4 Silence in other situations If the accused’s failure to answer an accusation of guilt cannot be regarded as an exercise of their right to remain silent, then it may well provide the basis for an inference of guilt. If the accusation occurs outside the context of official questioning, or at a point in time before the accused has become a suspect, and the situation is such that an innocent person would have been expected to protest their innocence, then the accused’s failure to do so may be attributed to a consciousness of guilt, and so used as the basis for an inference that they are in fact guilty. An innocent person might be expected to deny their guilt, for example, when confronted with an accusation of crime by a person other than the police; or to use the language of Parkes v R (1976), by a person with whom the accused is ‘speaking on even terms’. A denial of guilt might also be expected by a person discussing with their friends the fact that they are suspected of having committed a crime, or by a person discussing trial strategies with other persons involved in a prosecution: see, for example, Alexander v R (1994) and Harriman v R (1989). It is often argued that failure to deny an accusation of guilt is tantamount to an acknowledgment that the accusation is true. The failure to deny the accusation may thus mean that the accused is regarded as having accepted the truth of the accusation so as to make it effectively his or her own statement. The accusation can then be treated as an admission made by the accused, and admitted to prove its truth in exception to the hearsay rule: R v Christie (1914). In this author’s view, however, this is an artificial form of reasoning which obscures the real reason why such evidence has probative value. In the interaction between accuser and accused, what is significant is not what the accuser said, but how the accused responded. To ask whether the accused ‘adopted’ the accusation through his or her lack of denial is really beside the point; the question we should be asking is whether the accused’s response to the accusation was the response of a guilty person. As Windeyer J said in Woon v R (1964): ‘It is not that what is said to the accused can of itself be evidence against him. But his response or reaction may be; and that is why what is said to him may be admitted.’10

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10 (1964) 109 CLR 529, 541. See also Palmer, A, ‘Guilt and the Consciousness of Guilt: The Use of Lies, Flight and Other “Guilty Behaviour” in the Investigation and Prosecution of Crime’ (1997) 21 MULR 95, 134–35. 163

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9.6

Summary

At both common law and under the uniform evidence legislation: • an admission is a representation made by a party to a proceeding, other than giving evidence in the course of that proceeding, which is adverse to their interest in the proceeding; • admissions may be made vicariously; and • the person making the admission need not have had personal knowledge of the facts admitted; • at common law, admissions are subject to the hearsay rule, but there is an exception to the hearsay rule for admissions by the parties to civil proceedings; • under the uniform evidence legislation, admissions by the parties are dealt with separately from the hearsay rule; in civil proceedings, such admissions are subject to some of the rules discussed in the next chapter; • it is unclear whether conduct suggesting a consciousness of guilt, or of liability or of the weakness of one’s case – such as lies, flight or suborning false evidence – should be regarded as falling within the scope of these rules, or whether such conduct should instead be regarded simply as circumstantial evidence the admissibility of which is subject only to the requirement of relevance; • it is clear, however, that at both common law and under the uniform evidence legislation, the exercise by the accused of his or her right to silence can not presently be used in any way against the accused.

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CHAPTER 10

ADMISSIONS AND CONFESSIONS BY THE ACCUSED

10.1

Introduction

10.1.1 Overview This chapter is the second of two dealing with the admissibility of admissions by the parties to litigation. The first chapter dealt with matters common to both civil and criminal proceedings, and with the admissibility of admissions in civil proceedings. This chapter deals with the special rules which determine the admissibility of admissions in criminal proceedings, including the statutory recording provisions now applying in several Australian jurisdictions, the requirements of admissibility at common law and under the uniform evidence legislation, and the fairness discretion in the exercise of which the trial judge may exclude evidence of an otherwise admissible admission or confession. Although the focus is on criminal proceedings, however, s 84 of the uniform evidence legislation, discussed below under the heading ‘Violence and other conduct’, also applies to admissions in civil proceedings.

10.1.2 Terminology: admissions and confessions Although the words ‘admission’ and ‘confession’ are often used interchangeably, there is a technical difference between them. In criminal proceedings, the word admission is usually used to refer to a statement which acknowledges the truth of part of the prosecution case only, or which admits the truth of a proposition which circumstantially supports that case. A confession, on the other hand, is a complete acknowledgment of guilt. In criminal proceedings the rules of admissibility are, however, the same for both admissions and confessions. For this reason, the word ‘confessions’ is often used, both in this work and elsewhere, to refer to all admissions by the accused in criminal proceedings, whether the admission is partial or complete.

10.1.3 The importance and the danger of confessions Few items of evidence are as damning as a confession. Common sense suggests that no one would confess to a crime which they did not commit. A jury is therefore likely to give enormous weight to evidence of a confession. For this reason, a judge’s decision about whether or not to admit an alleged confession is likely to be one of the most important decisions in a trial. Indeed, this decision may almost determine the outcome of the case. Yet there are numerous reasons why a police officer’s testimony that the accused confessed 165

Principles of Evidence to him or her may be less reliable than the common sense view outlined above would suggest. First, the police officer may be lying about the fact that the accused confessed: the confession may instead have been fabricated by the police themselves. Secondly, the accused may have confessed to a crime of which he or she is innocent. The English Royal Commission on Criminal Justice identified four different sets of reasons for why someone might confess to a crime they did not commit: (i) people may make false confessions entirely voluntarily as a result of a morbid desire for publicity or notoriety; or to relieve feelings of guilt about a real or imagined previous transgression; or because they cannot distinguish between reality and fantasy; (ii) a suspect may confess from a desire to protect someone else from interrogation and prosecution; (iii) people may see a prospect of immediate advantage from confessing (eg an end to questioning or release from the police station) ...; and (iv) people may be persuaded temporarily by the interrogators that they really have done the act in question ...1

It should not be surprising, therefore, that evidence of alleged confessions has featured prominently in many of the most notorious miscarriages of justice. Despite the risks associated with the admission of confessions, however, police questioning or interrogation of suspects is clearly a legitimate method of obtaining evidence. Of course, confessions are not the only form of evidence which the police may obtain through interrogation. While refusing to confess, the suspect may make admissions confirming part of the prosecution case. Or the suspect may lie about some material aspect of the case, thereby creating another form of incriminating evidence. At the very least, the suspect may tie themselves to a version of events from which it will then be difficult to resile. It is difficult to see how the police could properly investigate crime if they were not permitted to question their suspects; and if a suspect chooses to confess, then it is difficult to see why the prosecution should be prevented from using that confession to prove the accused’s guilt. A blanket rule of exclusion for confessions is therefore undesirable. The challenge for the law is instead to decide which of the confessions or admissions allegedly made by a suspect can safely be admitted and which cannot.

10.1.4 Scope of these rules Although most of the discussion below is about confessions made by the accused to an investigating official such as a police officer, it is important to note that several of the rules are – in theory at least – of general application. The statutory recording provisions do only apply to admissions made to __________________________________________________________________________________________________________________________________________

1

Royal Commission on Criminal Justice, Report, Cm 2263, 1993, London: HMSO, p 57. 166

Admissions and Confessions by the Accused investigating officials. But the common law requirement of voluntariness and the tests of admissibility under the uniform evidence legislation apply regardless of the person to whom the admission was made. So too with the fairness discretion. In practice, however, issues of voluntariness, violence or fairness will usually only arise when an admission is made in the context of official investigation. This means that an admission made to someone other than an investigating official will almost always be admissible as evidence against the accused. The High Court has recognised, however, that evidence that an admission was made by the accused to a ‘prison informer’ is often unreliable. The court’s response to this problem is discussed in Chapter 21: Corroboration and Judicial Warnings.

10.2

Statutory recording provisions

This section deals with the statutory recording provisions found in s 23V of the Crimes Act 1914 (Cth), s 424A of the Crimes Act 1900 (NSW), s 464H of the Crimes Act 1958 (Vic), s 570D of the Criminal Code (WA), s 8 of the Criminal Law (Detention and Interrogation) Act 1995 (Tas), and s 142 of the Police Administration Act 1979 (NT). The operation of these provisions is not affected by the adoption of the uniform evidence legislation; in other words, the provisions operate in addition to any admissibility requirements in the uniform evidence legislation.

10.2.1 Introduction: the common law’s response to concerns about police fabrication of confessions Accused persons often claim to have been ‘verballed’ by the police: that is, they claim that the confession which the police say they made was in fact fabricated by the police themselves. When this occurs, there is a conflict between witnesses on a question of fact. The police officers say that the accused confessed; the accused says that he or she did not. The general approach of the common law to conflicts of evidence is to leave it to the jury to decide which of the witnesses to believe. If the conflict is about something on which the admissibility of evidence turns – such as the voluntariness of the confession – then the conflict is resolved by the trial judge on a voir dire. Under the traditional common law approach, however, the admissibility of evidence that the accused confessed does not depend on the judge determining that he or she did in fact do so. Rather, the question is left for the jury to decide. In other words, if the police claimed that the accused confessed, they would be permitted to testify to that effect even though the accused denied making the confession. It would then be a question for the jury to decide whose version of events to believe: the police officers’ or the accused’s. This contest is one which will inevitably be difficult for the accused to win. Suspects are usually interrogated alone, so that if there is any dispute about whether or not the accused confessed, the defence will have to persuade the 167

Principles of Evidence tribunal of fact to accept the word of one person – who has been charged with a criminal offence – in preference to that of one – and usually more – police officers. Police officers are usually trained and experienced witnesses; the accused is unlikely to be. To add to the inequality, by claiming that the police fabricated the confession, the accused runs the risk of losing his or her ‘shield’ against cross-examination about his or her character and criminal record: see Chapter 15: The Character and Credibility of the Accused. If the shield is lost, then the prosecution will be able to bring in all sorts of highly prejudicial material, particularly if the accused already has a criminal record. This combination of factors made it tempting for police, convinced of a suspect’s guilt but with insufficient evidence to prove it, to bolster the case with a fabricated confession which would, hopefully, ensure conviction. Fortunately, the courts and legislatures of Australia have now recognised the inadequacy of the common law’s approach to the problem of ‘verballing’. At common law the High Court has laid down a rule of practice requiring that juries be warned about the dangers of acting on evidence of an alleged confession which is not reliably corroborated; and the Victorian, New South Wales, Western Australian, Tasmanian, Northern Territory and Commonwealth Parliaments have made audio or video recording a condition of admissibility for confessions in indictable offences. Because the High Court’s solution to the problem of verballing does not affect the admissibility of evidence of a confession, however, it is not dealt with in this chapter, but in Chapter 21: Corroboration and Judicial Warnings.

10.2.2 New statutory rules of admissibility The primary legislative response to the problem of verballing has been the introduction in several Australian jurisdictions of provisions requiring the recording of any admission made by a suspect. As well as eliminating the problem of verballing, the requirement that admissions are inadmissible unless recorded is designed to ensure that there is an independent record of what occurred during the police interrogation of a suspect. The existence of such a record should reduce the scope for time-consuming disputes between the police and the accused about what happened during interrogation. Of course, the record can only ever be partial, leaving room for dispute about what occurred before the tape recorder was switched on, and during any periods when the recording was interrupted. Nevertheless, the recording requirements clearly reduce the scope for dispute. The details of the provisions obviously vary from jurisdiction to jurisdiction, but their substance is the same. In each of the jurisdictions, the legislation creates a rule of admissibility for admissions and confessions. In broad terms, the details of which are explored below, the rules of admissibility apply to admissions made by a suspect to an investigating official during questioning and relating to an indictable offence. Their effect is to render inadmissible any evidence falling within the scope of the rule, unless certain 168

Admissions and Confessions by the Accused conditions are met. In each jurisdiction, the chief requirement is that the admission or confession have been tape recorded. In the New South Wales, Victorian, Northern Territory and Commonwealth legislation, tape recording is defined to include both audio and video recording. The Western Australian and Tasmanian provisions, on the other hand, require that the admission or confession be video taped in order for it to be admissible.

10.2.3 Admissions and confessions The provisions apply to admissions and confessions. In Western Australia ‘admissions’ includes admissions made by spoken words, acts or otherwise: s 570D (1). In the other jurisdictions the legislation fails to specify whether the word admissions is intended to include ‘implied admissions’, such as lies, false denials, or admissions by conduct. In Marijancevic v R (1991), the accused was charged with several offences, including assaulting the police. He claimed, however, that it had actually been the police who had assaulted him. To rebut this claim, the prosecution wished to lead evidence of the fact that although the accused had initially complained about the alleged assault to a police officer who was involved in the investigation, he had subsequently decided not to pursue the complaint. The prosecution argued that his failure to pursue the complaint was tantamount to an admission that the complaint was without foundation. The defence then argued that as the conversation in which the accused indicated his intention to not pursue the complaint had not been tape recorded, it was rendered inadmissible by s 464H of the Crimes Act 1958 (Vic). The Victorian Court of Criminal Appeal rejected this argument, holding that the provisions did not extend to admissions by conduct. The court deliberately left open the question of whether the provisions would extend to evidence such as lies or false denials. In R v Heaney (1992) the court indicated, obiter, that the provisions probably did extend to such evidence. This is, no doubt, a question which will eventually require the authoritative resolution of the courts. It is submitted that the view taken in Heaney is one which the courts should follow. The tape recording provisions are intended to resolve conflict about what was said by the accused during official questioning. Suspects are just as vulnerable to being ‘verballed’ by means of the fabrication of an incriminating lie, as they are to being verballed by means of the fabrication of an express admission. The provisions ought, therefore, to be regarded as extending to any incriminating statements made by a suspect, including those which are intended by the suspect to be exculpatory.

10.2.4 Made by a suspect In all jurisdictions, the recording provisions only apply to admissions made by a ‘suspect’. Section 23V(1) of the Crimes Act 1914 (Cth) specifies that the provisions only apply to ‘a person who is being interviewed as a suspect (whether under arrest or not)’. In the Northern Territory, the provisions only 169

Principles of Evidence apply to a person who is suspected of committing an offence; in New South Wales, Victoria and Tasmania, on the other hand, the provisions apply to admissions made by a person who was, or ought reasonably to have been, suspected of committing an offence: s 424A(4) of the Crimes Act 1900 (NSW), s 464H(1) of the Crimes Act 1958 (Vic), and s 8(1)(a) of the Criminal Law (Detention and Interrogation) Act 1995 (Tas). Similarly, in Western Australia, s 570D(3) of the legislation provides that the recording requirements do not apply to ‘an admission by an accused person made before there were reasonable grounds to suspect that he or she had committed the offence’. Suspicion was described by Lord Devlin as ‘a state of conjecture or surmise where proof is lacking: “I suspect but I cannot prove”.’2 Similarly, Kitto J described a ‘suspicion that something exists’ as ‘more than a mere idle wondering whether it exists or not; it is a positive feeling of apprehension or mistrust, amounting to a “slight opinion, but without sufficient evidence”’.3 The question of whether the accused was suspected of committing an offence will turn on the investigators’ state of mind, as evidenced by the investigator’s behaviour towards the accused. The questions of whether the accused ought reasonably to have been suspected of committing an offence, or whether there were reasonable grounds to suspect that the accused had committed an offence, on the other hand, will turn on the existence of evidence implicating the accused in the crime. The justification for these limitations on the legislation is primarily pragmatic: the police can not reasonably be expected to record everything that is said to them during the course of an investigation. If the accused is initially interviewed only as a witness to the crime, then the police ought not to be penalised for failing to record the interview. It is only when a person has been identified as a potential suspect that the police should be required to record their interactions with them.

10.2.5 To an investigating official In Western Australia and the Northern Territory, the provisions only apply to admissions made to a member of the police force. In Victoria, and for Commonwealth offences, the ambit of the provisions is slightly wider, extending to admissions made to any investigating official. In Victoria (and also in New South Wales), ‘investigating official’ is defined as a member of the police force, or a person appointed by or under an Act whose functions include those in respect of the prevention or investigation of offences: s 464(2) of the Crimes Act 1958 (Vic) and s 424A(4) of the Crimes Act 1900 (NSW). The Commonwealth definition of ‘investigating official’ is very similar: s 23B(1) of the Crimes Act 1914 (Cth). __________________________________________________________________________________________________________________________________________

2 3

Hussien v Chong Fook Kam [1970] AC 942, 948. Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266, 303. 170

Admissions and Confessions by the Accused The definitions of investigating official in both Victoria and New South Wales expressly exclude persons engaged in ‘covert investigations’ under the orders of a superior. The approach under the Commonwealth legislation is slightly different. The provisions do still apply to an admission made to an undercover investigator, but the situation is effectively treated as one where recording is not reasonably practicable at the time of the admission: s 23V(3) of the Crimes Act 1900 (Cth). This means that the alternative requirements of s 23V(1)(b) – discussed below under the heading ‘Excuses for failure to record’ – are imposed on the investigator, but these requirements need only be met ‘at a time when they could reasonably be performed without prejudice to the covert investigations’. The Western Australian provisions make no explicit provision for admissions to undercover police officers, but such a situation would presumably fall within the terms of s 570D(4)(a) of the legislation, which provides that there is a reasonable excuse for failing to record an admission if the admission was made ‘when it was not practicable to video tape it’. In New South Wales and Tasmania, however, the scope of the legislation is not limited by reference to the person to whom the admission is made; rather it is limited by reference to the context in which the admission is made, namely one of official questioning. No doubt this will in practice limit the scope of the provisions to admissions made to investigating officials; but in theory at least, the provisions do also apply to admissions made to other persons who happen to be present during the course of the questioning.

10.2.6 During official questioning The provisions in all the jurisdictions apply to admissions made during official questioning; but they vary as to whether or not they also apply to admissions made other than during official questioning. The New South Wales and Tasmanian provisions only apply to admissions made in the course of official questioning, which is defined to mean ‘questioning by an investigating official [or, in Tasmania, by a police officer] in connection with the investigation of the commission or possible commission of an offence’: s 424A(4) of the Crimes Act 1900 (NSW) and s 8(1)(a) of the Criminal Law (Detention and Interrogation) Act 1995 (Tas). As noted under the previous heading, in New South Wales the phrase ‘investigating official’ does not include police officers engaged in covert operations. The Commonwealth provisions are similar to those in New South Wales and Tasmania in that they only apply to admissions made by a person ‘who is being interviewed’. This presumably means that if a suspect makes an admission other than in the course of the interview, then the admission will be admissible whether or not it is recorded. This limitation clearly leaves room for the police to claim falsely that the accused made admissions outside the interview room, for example, while being transported to the police station for questioning or when arrested. On 171

Principles of Evidence their face, the Western Australian provisions avoid this problem. This is because the provisions apply to all admissions made by the accused, whether or not the admissions were made during the course of questioning. The legislation provides, however, that an unrecorded confession will be admissible if there was a reasonable excuse for not recording it, and reasonable excuse includes situations where it was not practicable to record the admission. As it would appear to be impracticable to record everything that occurs, for example, on the way to the police station, an unrecorded admission allegedly made in such circumstances is likely to be admissible. The Victorian provisions are by far the strongest in this regard. They apply first to confessions or admissions made before the commencement of questioning; secondly, to confessions or admissions made during questioning at a place where facilities were available to conduct an interview; and thirdly, to confessions or admissions made during questioning at a place where facilities were not available to conduct an interview. In the second situation, any admission is obviously inadmissible unless recorded. But in the first and third situations, as well, the admission is inadmissible unless it is either recorded, or its substance is subsequently confirmed by the accused and the confirmation is recorded: s 464H(1)(c) and (e). To return to the example of an admission made on the way to the police station for questioning, such an admission would be inadmissible in Victoria unless the accused subsequently confirmed the substance of the admission and the confirmation was recorded. The Northern Territory provisions are to very similar effect.

10.2.7 What must be recorded? The Western Australian provisions require only that the admission itself be recorded. But the provisions in the other jurisdictions require more than this. In Victoria, if the admission is made during an interview at a place where interview facilities were available, then ‘the questioning and anything said by the person questioned’ must be recorded: s 464H(1)(d) of the Crimes Act 1958 (Vic). The Commonwealth and Northern Territory provisions also require that ‘the questioning of the person and anything said by the person during that questioning’ be tape recorded: s 23V(1)(a) of the Crimes Act 1914 (Cth) and s 142(1)(b) of the Police Administration Act 1979 (NT). And in New South Wales and Tasmania, there must be a recording of ‘the interview in the course of which the admission was made’: s 424A(2)(a) of the Crimes Act 1900 (NSW), and s 8(2)(a) of the Criminal Law (Detention and Interrogation) Act 1995. The wording of the New South Wales and Tasmanian provisions clearly contemplates the possibility of there being more than one interview, and only requires that the recording of the particular interview being offered in evidence. The wording of the Victorian, Northern Territory and Commonwealth provisions is less clear. It is at least arguable that the requirement that ‘the questioning’ be recorded means that all the police questioning of the suspect must be recorded, and not just those parts of the 172

Admissions and Confessions by the Accused questioning which are being offered in evidence. This argument was, however, rejected by the High Court in the cases of Pollard v R (1992) and Heatherington v R (1994). Although both cases revolved around the Victorian legislation, the Commonwealth and Northern Territory provisions use such similar wording that they would, presumably, be interpreted in the same way. In Pollard the accused was interviewed at the Frankston police station (where interview facilities were available) and then again at the St Kilda Road police complex. Only the St Kilda Road interview was recorded. The Frankston interview was clearly inadmissible; the accused argued that the St Kilda Road one was as well. A majority of the High Court (Mason CJ, Deane, Toohey and McHugh JJ; Brennan, Dawson and Gaudron JJ dissenting) rejected this argument. They held that where there is more than one discrete and separate interview – which they said there was in Pollard – then the entire process of questioning need not be recorded for one of the interviews to be admissible. In Heatherington, the police also conducted two interviews, but unlike Pollard both interviews were conducted at the same police station, and were only separated by a 40 minute break. Again, only the second interview was recorded. A majority of the High Court held that the interviews were ‘different and distinct’ and that the record of interview was admissible. The majority commented that: The issue here then is whether the initial period of questioning and the second period should be characterized as the same questioning. The resolution of such an issue involves questions of degree and may require a weighing of a variety of factors including the proximity of time and venue, the relationship between the occasions on which questioning took place and the relationship between the interrogations which took place on those occasions. Thus, it may transpire that, on the second occasion, the questioning is largely influenced by what was said on the earlier occasion, in which event one might the more readily conclude that a confession made on the second occasion was made in the same or the one period of questioning which began on the first occasion and ended on the second occasion.4

10.2.8 Relating to an indictable offence The Commonwealth provisions apply to proceedings for all Commonwealth offences; but the New South Wales, Victorian, Western Australian and Tasmanian provisions only apply to indictable offences. In New South Wales this arises out of the definition of ‘admission’, which is restricted to an admission ‘that relates to an indictable offence, other than an indictable offence which may be tried summarily without the consent of the accused’. In Victoria, Western Australia and Tasmania, this limitation arises from the ambit of the exclusionary rule. Section 464H(1) of the Crimes Act 1958 (Vic), provides that an admission not meeting the recording requirements ‘is inadmissible as evidence ... in proceedings for an indictable offence’; and __________________________________________________________________________________________________________________________________________

4

Heatherington v R (1994) 179 CLR 390, 376–77 (Mason CJ, Deane and McHugh JJ). 173

Principles of Evidence s 570D(2) of the Criminal Code (WA) and s 8(2) of the Criminal Law (Detention and Interrogation) Act 1995 (Tas) refer to ‘the trial of an accused person for a serious offence’, ‘serious offence’ being defined as an indictable offence which can not be tried summarily. These limitations mean that unrecorded admissions are still admissible in summary proceedings. In the Northern Territory, the application of the provisions depends upon whether the offence is punishable by two years of imprisonment.

10.2.9 Excuses for failure to record There is some variation between the different jurisdictions as to what constitutes a reasonable excuse for failure to record an admission or confession. The New South Wales, Tasmanian and Western Australian legislation all list situations in which there may be a ‘reasonable excuse’ for failure to record the admission: s 424A(4) of the Crimes Act 1900 (NSW), s 570D(4) of the Criminal Code (WA) and s 8(3) of the Criminal Law (Detention and Interrogation) Act 1995 (Tas). In all three jurisdictions, ‘reasonable excuse’ includes a mechanical failure in the recording equipment; a suspect’s refusal to have the questioning recorded; and the unavailability of recording equipment during the period in which it was reasonable to detain the suspect. Under the Western Australian and Tasmanian legislation there is also a reasonable excuse for failure to record if an ‘admission was made when it was not practicable to video tape it’. The consequences of there being a reasonable excuse for failure to record the admission are, however, markedly different. In Western Australia, the admission is admissible if the prosecution prove that there is a reasonable excuse for failure to record it: s 570D(2)(b). In New South Wales and Tasmania, on the other hand, the admission will still be inadmissible unless there is a recording of an interview with the person who made the admission about the making and terms of the admission in the course of which the person states that he or she made an admission in those terms: s 424A(2)(b) of the Crimes Act 1900 (NSW) and s 8(2)(b) of the Criminal Law (Detention and Interrogation) Act 1995 (Tas). This requirement of what might be called a ‘secondary’ recording is reminiscent of the approach under the Victorian legislation to admissions made before the commencement of questioning or at a place where no interviewing facilities were available. If no ‘secondary’ recording is available, then the primary admission will be inadmissible unless there is also a reasonable excuse for the failure to make both the primary and the secondary recording: s 424A(2)(c) of the Crimes Act 1900 (NSW) and s 8(2)(c) of the Criminal Law (Detention and Interrogation) Act 1995 (Tas). The Commonwealth legislation also lays down a requirement for a ‘secondary’ recording in cases where it was not ‘reasonably practicable’ for the admission itself to be recorded: s 23V(1)(b) of the Crimes Act 1914 (Cth). But the existence of a secondary recording will only render the primary admission

174

Admissions and Confessions by the Accused admissible if the investigating official made a record in writing of the interview in the course of which the admission was made, either at the time of the interview itself, or as soon as practicable afterwards. As soon as is practicable the record must then be read to the suspect; the suspect must be permitted to interrupt the reading in order to draw attention to any errors or omissions that the suspect claimed had been made in or from the written record; the suspect must be given the opportunity of pointing out these errors or omissions at the end of the reading; and everything said to or by the suspect as part of this process must be tape recorded. Noticeably absent is any requirement that the suspect confirm the fact that the admission was made; indeed, the suspect might dispute that any admission was ever made. Finally, the Victorian, Western Australian, Tasmanian, Northern Territory and Commonwealth provisions all contain ‘escape clauses’, allowing the court to admit an otherwise inadmissible confession if satisfied that ‘special’ or ‘exceptional’ circumstances exist, justifying the reception of the evidence: s 464H(2) of the Crimes Act 1958 (Vic), s 570D(2)(c) of the Criminal Code (WA), s 8(2)(d) of the Criminal Law (Detention and Interrogation) Act 1995 (Tas), s 143 of the Police Administration Act 1979 (NT) and s 23V(5) of the Crimes Act 1914 (Cth).

10.2.10 Availability of recording It is obviously not enough that the tape recording have been made; it must also be available as evidence. In four of the jurisdictions, a copy of the recording must be made available to the defence: s 464H(3)(a) of the Crimes Act 1958 (Vic), s 23V(2) of the Crimes Act 1914 (Cth), s 570A(1) of the Criminal Code (WA) and s 142(2) of the Police Administration Act 1979 (NT). If a transcript of the recording is prepared, then in three of the jurisdictions, that too must be made available to the defence: s 464H(3)(b) of the Crimes Act 1958 (Vic), s 23V(2)(c) of the Crimes Act 1914 (Cth) and s 142(2) of the Police Administration Act 1979 (NT).

10.2.11 Use of the tape recording If the various conditions are met, then the recording itself may be used as evidence of the admission; in other words, the recording may be played to the jury. This is explicit in the Western Australian legislation, which provides that evidence of an admission is inadmissible unless ‘the evidence is a video tape on which is a recording of the admission’. The other jurisdictions make no specific provision to this effect, but there is nothing to prevent the recording being used in this way, and such a practice appears to be emerging.

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10.3

Common law

10.3.1 The requirement of voluntariness At common law, admissions in criminal proceedings are prima facie inadmissible. This is because they are hearsay: assertions made out of court being used to prove the truth of what they assert. This means that it is for the party wishing to lead evidence of the admission to establish that it falls within the terms of an exception to that rule. In criminal proceedings, the relevant exception requires that the admission or confession has been made voluntarily, and the burden of proving this lies on the prosecution. As confessions are prima facie inadmissible, it is for the prosecution to satisfy the trial judge that the requirement of voluntariness is satisfied. This must be done on the voir dire into the admissibility of the evidence. The requirement of voluntariness can, like other exceptions to the hearsay rule, be justified by reference to the reliability principle: the idea that unreliable evidence should be excluded and reliable evidence admitted. If the accused’s confession was procured through violence, intimidation, or threats then it is clearly possible that the accused has confessed to a crime of which he or she is in fact innocent. The violence or intimidation leave no room, in other words, for the common sense assumption that people only confess to crimes of which they are guilty. Nevertheless, the reliability principle is not completely satisfactory as an explanation for the requirement of voluntariness. If reliability were the primary concern, for example, then one might expect that the discovery of something which showed a confession to be true would render that confession admissible. If, for example, the murder weapon was found where the accused said it would be found, then this fact would appear to confirm the truth of the accused’s confession, notwithstanding that the confession itself might have been involuntary. In fact, the discovery of such evidence is completely irrelevant to the admissibility of a confession: see Lam Chi-Ming v R (1991). Indeed, if an involuntary confession is the only thing which connects the accused to the discovered evidence then that evidence might itself be excluded as irrelevant. If, for example, a murder weapon was discovered as a result of an involuntary confession, then the tribunal of fact could not be told how it had been discovered, because this would involve the use of the involuntary confession; if the weapon could not then be connected to the accused in some other way – through fingerprint evidence, for example, or proof of purchase – then the fact that the weapon had been found would not render more probable the accused’s guilt, and would therefore fail the test of relevance. If reliability were the primary concern of the requirement of voluntariness, one might also expect that the accused could be asked on the voir dire into the admissibility of a confession whether or not his or her confession was true. 176

Admissions and Confessions by the Accused Again, the Privy Council has indicated that the truth of a confession is irrelevant to the question of its voluntariness: Wong Kam-ming v R (1980). Although the Australian authority is less clear – see, for example, Burns v R (1975) and MacPherson v R (1981) – s 189(3) of the uniform evidence legislation provides that on a voir dire in a criminal proceeding ‘the issue of the admission’s truth or untruth is to be disregarded unless the issue is introduced by the defendant’. Finally, the claim that a confession is only voluntary if the accused understands that he or she has a right to remain silent is inexplicable in terms of reliability: see the discussion of R v Li (1993) below. Perhaps the best view, then, is that the voluntariness requirement is a method of upholding the privilege against self-incrimination by ensuring that a confession will only be admitted if the accused has freely chosen to waive the privilege. If the privilege has not been waived freely, then it matters not that the admission may itself be perfectly reliable. It is not surprising, therefore, that it was this rationale for the requirement of voluntariness which was expressed by Deane, Dawson and Gaudron JJ in EPA v Caltex (1993) and by Lord Griffiths in Lam Chi-Ming v R (1991).

10.3.2 The meaning of voluntariness In McDermott v R (1948), Dixon J described the requirement of voluntariness as follows: At common law a confessional statement made out of court by an accused person may not be admitted in evidence against him upon his trial for the crime to which it relates unless it is shown to have been voluntarily made. This means substantially that it has been made in the exercise of his free choice.5

Similarly, in R v Lee (1950), the High Court said that voluntary means ‘made in the exercise of a free choice to speak or be silent’.6 The question of what makes a person’s choice ‘free’ is, however, one of those philosophical questions to which no easy or indisputably correct answer can be given. A choice is certainly not free if it is made as a result of pressures or influences which undermine the freedom of the choice; but this definition suffers obvious problems of circularity. Ultimately, one can only define freedom of choice for the purposes of the requirement of voluntariness by returning to the case law and seeing which pressures the courts regard as depriving a choice of its quality of freedom and which they do not. Several points emerge. First, a confession will generally only be held to be involuntary if there is some causal connection between the pressures or influences and the making of the confession. Secondly, it is usually only pressures or influences external to the suspect which render a confession involuntary, and usually only those __________________________________________________________________________________________________________________________________________

5 6

McDermott v R (1948) 76 CLR 501, 511. R v Lee (1950) 82 CLR 133, 149. 177

Principles of Evidence applied or exerted by those responsible for interrogating the suspect. In particular, the case law clearly recognises two kinds of pressure as depriving a suspect of his or her freedom of choice: those usually referred to respectively as ‘oppressive conduct’ and the holding out of ‘inducements’. Nevertheless, the courts have often insisted that the question of voluntariness cannot be reduced to categories, and examples of cases where the courts might be prepared to hold a confession involuntary, despite the absence of external pressure, are also discussed below.

10.3.3 Oppressive conduct The most common basis upon which a person’s confession is held to be involuntary is when the police have tried to ‘break’ a suspect through the use of questionable techniques of interrogation. In McDermott v R (1948), Dixon J said that if an accused person: ... speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary.7

The kind of behaviour described above is often referred to as ‘oppressive conduct’. It is important to note, however, that the focus should not so much be on the nature of the police conduct as on the effect which that conduct had on the mind of the suspect. Obviously the effect of the police conduct will vary from suspect to suspect: what might be sufficient to overbear the will of a juvenile first-time offender might have very little effect on a hardened criminal. In short, the issue is one about the state of mind of the suspect, rather than about the nature of the police conduct. This point was emphasised by Dixon, Evatt and McTiernan JJ in Cornelius v R (1936): Approval or disapproval of the measures taken by the police to obtain the confession appears to us to be beside the point in deciding this question. What matters for present purposes is the effect produced upon the prisoner. ‘It would be a lamentable thing if the police were not allowed to make inquiries, and if statements made by prisoners were excluded because of a shadowy notion that if the prisoners were left to themselves they would not have made them’: R v Cook (1918) per Darling J. A statement need not be spontaneous or volunteered in order to be voluntary. But, on the other hand, it no doubt can be felt that interrogation may be made the means or occasion of imposing upon a suspected person such a mental and physical strain for so long a time that any statement he is thus caused to make should be attributed not to his own will, but to his inability to further endure the ordeal and his readiness to do anything to terminate it.8 __________________________________________________________________________________________________________________________________________

7 8

McDermott v R (1948) 76 CLR 501, 511. Cornelius v R (1936) 55 CLR 235, 251–52. 178

Admissions and Confessions by the Accused As Brennan J said in Collins v R (1980), ‘Voluntariness is not an issue to be determined by reference to some hypothetical standard; it requires a careful assessment of the effect of the actual circumstances of a case upon the will of the particular accused’.9 But as Brennan J also noted: The conduct of police before and during an interrogation fashions the circumstances in which confessions are made and it is necessary to refer to those circumstances in determining whether a confession is voluntary. The principle, focusing upon the will of the person confessing, must be applied according to the age, background and psychological condition of each confessionalist and the circumstances in which the confession is made.10

It is clear, then, that the state of mind of the suspect at the time at which he or she confessed will be inferred in part, and perhaps in large part, from evidence about how the police behaved, although the accused’s own testimony on the voir dire about his or her state of mind will also obviously be important. That being so, any of the following might be referred to by a judge in determining whether or not a confession was voluntary: • the nature of the questioning: courts tend to frown on the use of crossexamination techniques; • the length of the interrogation; • deprivation of food and/or sleep, and deliberate deprivation of a drug of addiction; • the length and nature of the suspect’s detention: was the accused kept for long periods in solitary confinement, or alternatively placed in a situation where they might have feared violence from other prisoners; and • the use of violence, intimidation or pressure by the police.

10.3.4 Inducements The second type of influence which is regarded as depriving a suspect’s choice of the quality of freedom is the holding out by a person in authority over the suspect of an inducement to confess. This aspect of the requirement of voluntariness was described by Dixon J in McDermott v R (1948) as follows: But it is also a definite rule of the common law that a confessional statement cannot be voluntary if it is preceded by an inducement held out by a person in authority and the inducement has not been removed before the statement is made ... The expression ‘person in authority’ includes officers of the police and the like, the prosecutor, and others concerned in preferring the charge. An inducement may take the form of some fear of prejudice or hope of advantage exercised or held out by the person in authority.11 __________________________________________________________________________________________________________________________________________

9 Collins v R (1980) 31 ALR 257, 307. 10 Ibid, 307. 11 McDermott v R (1948) 76 CLR 501, 511. 179

Principles of Evidence There are thus two kinds of inducements: promises (‘the hope of advantage’) and threats (‘the fear of prejudice’). Dixon J’s statement is slightly misleading, however, when it suggests that a confession will be involuntary merely because it was preceded by an inducement. There must, in fact, be a causal connection between the inducement and the making of the confession: the inducement must have induced. In other words, we must be able to say that but for the inducement the confession would not have been made: DPP v Ping Lin (1976). In Queensland, however, a confession or admission preceded by a threat or promise will be deemed to have been induced by the threat or promise unless the prosecution can prove otherwise.12 An inducement must also, it has been held, be of a ‘temporal character’. A threat couched in spiritual terms – for example, ‘You will go to hell if you do not confess’ – will not count. Nor will a mere ‘moral exhortation to tell the truth’ such as ‘You really should tell the truth’, or ‘You will feel much better if you get it all off your chest’: see Collins v R (1980) and R v Bodsworth (1968). The following are examples of the kind of conduct which might constitute an inducement: • a threat to lay further charges if the suspect does not confess to the offence which is being investigated; • a threat to arrest or lay charges against another person, such as the suspect’s spouse, lover or child; • a promise to release the suspect on bail if he or she confesses; • an express or implied threat to use violence against the suspect if he or she does not confess (this might also be oppressive conduct); or • a threat to leave the suspect in the cell for a significant period of time if he or she does not confess. The inducement must also have been held out by a ‘person in authority’. As the court pointed out in R v Dixon (1992), this is an all-encompassing phrase, which includes: ... any person concerned in the arrest, detention or examination of the accused, or who has an interest in respect of the offence, or who is otherwise seen by the accused by virtue of his position, as capable of influencing the course of the prosecution, or the manner in which he is treated in respect of it.13

10.3.5 Where there is no external pressure to confess What oppressive conduct and inducements obviously have in common is that they are external to the suspect him or herself. The question therefore arises as to whether a confession could be held to be involuntary in the absence of external pressure. The first point to note is that the fact that a suspect might, __________________________________________________________________________________________________________________________________________

12 Criminal Law Amendment Act 1894 (Qld), s 10. 13 R v Dixon (1992) 28 NSWLR 215, 229. 180

Admissions and Confessions by the Accused by personality or temperament, be predisposed to confess, does not affect the voluntariness of their confession: see Collins v R (1980). In some cases, however, the suspect’s mental state may be such that they are simply incapable of exercising a free choice. Any confession they make may then be held to be involuntary, despite the absence of any externally applied pressure to confess: see R v Buchanan (1966) and R v Parker (1990). If the court refuses to find that the suspect’s mental state made them incapable of making a free choice about whether or not to confess, the suspect’s mental state will undoubtedly be relevant to the reliability of the confession, a matter which must be considered by the judge when exercising the fairness discretion discussed below. Furthermore, it can be argued that a person’s choice is only free if they truly understand that they do have a choice about whether to speak or not. If a suspect believes him or herself to be under an obligation to answer the police questions, then their confession might be described as involuntary even though it was made without any external pressure. In the Victorian case of R v Li (1993), for example, the suspect, a teenage migrant from East Timor, was informed by the police of his right to remain silent. The record of interview suggested, however, that the suspect had failed to understand what this meant. Coldrey J excluded his confession on the grounds of voluntariness, commenting that: The breadth of the concept of voluntariness is often misunderstood. In my view it extends to and encompasses the situation where answers are given by an accused who lacks understanding that such questions need not be answered, and, as a result, feels compelled to participate in the interview process. In such circumstances the interview will be non-voluntary. This is so even though the interview itself may be conducted in an ostensibly cooperative fashion.14

This suggests that the choice which must be free is a choice about whether or not to exercise the right to remain silent, and that this choice can only be made if the suspect is fully informed about what that right entails. On this view, the rationale of the requirement of voluntariness has more to do with upholding the right to remain silent, than with excluding potentially unreliable evidence. The decision of the New South Wales Court of Criminal Appeal in R v Azar (1991) is, however, at odds with this view. In that case, the court held that the accused’s lack of awareness of the right of silence would not, on its own, prevent his confession from being held to be voluntary.

10.4

The uniform evidence legislation

The uniform evidence legislation replaces the common law’s requirement of voluntariness with two slightly different tests of admissibility. These tests are __________________________________________________________________________________________________________________________________________

14 R v Li [1993] 2 VR 80, 87. See also Palmer, A, ‘R v Elliott’ (1997) 21 MULR 331, 335–37. 181

Principles of Evidence only used to determine the admissibility of ‘first-hand’ admissions, when used against the person who made the admission. An admission is ‘first-hand’ if evidence of it is given ‘orally by a person who saw, heard or otherwise perceived the admission being made’ or in form of ‘a document in which the admission is made’: s 82. If an admission is not first-hand then its admissibility is determined by reference to the hearsay rule. Similarly, if an admission is offered as evidence against someone other than the person who made it, its admissibility is also determined by reference to the hearsay rule: s 83.

10.4.1 Violence and other conduct The first requirement of admissibility for admissions is contained in s 84 of the legislation, which applies to all admissions, including admissions in civil cases. Section 84(1) provides that: Evidence of an admission is not admissible unless the court is satisfied that the admission, and the making of the admission, were not influenced by: (a) violent, oppressive, inhuman or degrading conduct, whether towards the person who made the admission or towards another person; or (b) a threat of conduct of that kind.

Although the burden of so satisfying the court will lie on the party seeking to lead evidence of the admission, the test in s 84(1) need only be satisfied if the party against whom evidence of the admission is being led raises as an issue the possibility that the admission or its making were influenced by such conduct: s 84(2). The most important difference between the test in s 84 and the common law requirement of voluntariness, is that the test in s 84 may result in exclusion in cases where the causal connection between conduct and confession is far weaker than would be necessary under the common law test. At common law, oppressive conduct must ‘overbear the will’ of the suspect, and an inducement must actually induce the confession. Under the test in s 84, however it is enough that the conduct have ‘influenced’ the admission or the making of it. As a general proposition, it is difficult to imagine that conduct of the kind specified in s 84 could not have some influence on a suspect. This suggests that if a court is satisfied that such conduct did in fact occur, then it will be very difficult to persuade the court that evidence of the admission ought nevertheless to be admitted.

10.4.2 Reliability The second test for admissibility applies only to admissions made by the accused in a criminal case, either ‘in the course of official questioning’ or ‘as a result of an act of another person who is capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued’: s 85(1). The phrase ‘official questioning’ is defined in the 182

Admissions and Confessions by the Accused dictionary section of the Act. In R v Truong (1996), Miles CJ of the ACT Supreme Court indicated that the phrase persons ‘capable of influencing’ was probably intended to include – apart from the obvious category of persons with an official involvement in the investigation or prosecution – persons in the position of complainants or victims of the alleged crime. Section 85(2) then imposes an additional test of admissibility for admissions made in such circumstances, over and above that already imposed by s 84: Evidence of an admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected.

This test is, thus, squarely focused on the reliability of an admission. In applying this test the court is required by s 85(3) to take into account: (a) any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject; and (b) if the admission was made in response to questioning: (i) the nature of the questions and the manner in which they were put; and (ii) the nature of any threat, promise or other inducement made to the person questioned.

Section 85 thus provides an additional safeguard for criminal cases, eliminating those confessions made in circumstances less extreme than those set out in s 84, but the reliability of which is nevertheless open to doubt. Other factors which may affect the reliability of a confession are discussed below in the context of the fairness discretion.

10.4.3 Unsigned records of interview Finally, a documentary record of admissions allegedly made during official questioning is inadmissible under the uniform evidence legislation, unless the accused has acknowledged that the document is a true record of the interview: s 86. The acknowledgment must be in the form of the accused signing, initialling or otherwise making the document. This rule does not prevent a police officer from giving oral evidence about any such admissions allegedly made by the accused: it merely prevents the prosecution from putting such evidence before the jury in written form. Section 86 is obviously of limited importance if the admission is subject to a mandatory recording requirement. Apart from any question of admissibility, such evidence may also be made the subject of a judicial warning, as discussed below in Chapter 21: Corroboration and Judicial Warnings.

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10.5

The fairness discretion

Both at common law and under the uniform evidence legislation, a confession in a criminal proceeding which meets the requirements of admissibility set out above is still open to discretionary exclusion. Two discretions apply to confessions. The first discretion is referred to as the public policy discretion. Because its application is not restricted to confessional evidence, however, it is dealt with in Chapter 18: Discretions to Exclude Evidence. The second discretion is commonly called the fairness discretion. It is sometimes also referred to as the McDermott/Lee discretion, after the two High Court cases – McDermott v R (1948) and R v Lee (1950) – which first recognised its existence. The common law fairness discretion is replicated in s 90 of the uniform evidence legislation, which is in the following terms: In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if: (a) the evidence is adduced by the prosecution; and (b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.

The fairness discretion is not a rule of admissibility: it allows, but does not require, the judge to exclude a confession when its use at the trial would be unfair to the accused. It will be for the accused to persuade the judge to exercise his or her discretion in the accused’s favour. The fairness discretion is concerned with ensuring that the accused receives a fair trial. This is an important point: the discretion is not to be exercised merely because the accused was unfairly treated by the police during their investigation of the offence. But the means by which a confession is obtained may make it unfair to use it at trial: pre-trial unfairness in obtaining the confession may become at-trial unfairness if the confession is accepted in evidence.

10.5.1 Unreliability There are two main reasons why pre-trial unfairness could cause at-trial unfairness. The first is that the circumstances in which the confession was obtained may suggest that it is unreliable. Under the uniform evidence legislation, this aspect of unfairness is more likely to be dealt with by s 85 of the legislation; at common law it will be dealt with by the fairness discretion. It is unfair to admit unreliable confessions for the same reason that it is unfair to admit any unreliable evidence: it may cause the jury to convict the accused on evidence which does not justify conviction. But what unreliability clearly means in this context is that the accused may have confessed to a crime which he or she did not in fact commit. This is a delicate area: the judge can not actually find that the accused confessed to a crime which he or she did not commit without finding the accused innocent. This would clearly be a usurpation of the jury’s role. The question for the judge, then, is not whether 184

Admissions and Confessions by the Accused the accused’s confession is untrue, but whether the circumstances in which the confession was made mean that it can not safely be relied on as evidence of guilt. The circumstances which will most commonly cast doubt on the reliability of a confession are of course those which the judge will already have considered if the defence argued that the confession was involuntary: that it was only made because the accused was unable to endure further the ordeal of detention or interrogation, or that it was made in response to an inducement offered by the investigating officials. But if the judge has already rejected these arguments it may be difficult to persuade him or her that it would be unfair to admit the confession on the grounds that it is unreliable. Oppressive conduct and the offering of inducements are not, however, the only circumstances which may affect the reliability of a confession. The mental or physical condition of the suspect may also be such as to cast doubt on the reliability of anything they say. As Muirhead J noted in Collins v R (1980), if the suspect was sick, shocked, drunk or under acute distress at the time of confessing, then it may be unfair to admit their confession at trial. Importantly, the discretionary exclusion of a confession on these grounds would not require – as the voluntariness rule may – any impropriety on the part of the police.

10.5.2 Upholding rights Unreliability is not the only reason why it might be unfair to use a confession. As Brennan J pointed out in Duke v R (1988): The unfairness against which an exercise of the discretion is intended to protect an accused may arise not only because the conduct of the preceding investigation has produced a confession which is unreliable, but because no confession might have been made if the investigation had been properly conducted ... Trickery, misrepresentation, omission to inquire into material facts lest they be exculpatory, cross-examination going beyond the clarification of information voluntarily given, or detaining a suspect or keeping him in isolation without lawful justification – to name but some improprieties – may justify rejection of evidence of a confession if the impropriety had some material effect on the confessionalist, albeit the confession is reliable and was apparently made in the exercise of a free choice to speak or to be silent.15

In Pollard v R (1992), for example, the accused was charged with rape. He was first interviewed at the Frankston police station. Before any questioning began, the police were required – by s 464A(3) of the Crimes Act 1958 (Vic) – __________________________________________________________________________________________________________________________________________

15 Duke v R (1988) 180 CLR 508, 513. In R v Swaffield; Pavic v R (1998) 151 ALR 98, 111, however, Brennan CJ suggested that cases of police impropriety should now be the exclusive province of the public policy discretion, with the fairness discretion only being exercised in ‘cases where the conduct which induces the confession throws doubt on its reliability’. Toohey, Gaudron and Gummow JJ (at 124), however, affirmed the present position that one of the purposes of the fairness discretion is ‘the protection of the rights and privileges of the accused’, including ‘procedural rights’. 185

Principles of Evidence to administer a caution to the accused, essentially informing him of his right to remain silent, and – by s 464C(1) of the Crimes Act – to inform him of his rights to communicate with a friend or relative to inform them of his whereabouts, and to communicate with a legal practitioner. None of this was done. He was then taken to the St Kilda Road police complex for further questioning. At St Kilda Road the police did caution him, and inform him of his rights to communicate. Although the failure to inform Pollard of his rights in Frankston did not call into question the reliability of his admissions, it is possible that if he had been informed of his rights in Frankston, he would have exercised them, and thus avoided making any admissions. And if he had made no admissions in Frankston, then it is also possible that he would have made none at St Kilda Road. Once ‘the cat was out of the bag’, however, Pollard could never be free of the psychological and practical disadvantages of having made the Frankston admissions, even if the Frankston admissions were not themselves admissible. Certainly, receiving the required warnings and information after having made the original admissions could not undo the disadvantage of having made them in the first place. It was for this reason that a majority of the High Court in Pollard’s case held that the breach of Pollard’s rights in Frankston was relevant to the exercise of the fairness discretion. This is the protective principle in operation: the accused’s rights were breached in Frankston; because of this he made incriminating admissions; fairness therefore requires that the admissions be excluded from evidence. On the protective conception of fairness, if the police infringe one of the rights of a suspect in custody or any of the procedural rules designed to protect a suspect against unfair methods of obtaining evidence the fact of this infringement should, prima facie, lead to the exclusion of any resulting confession on the grounds that it would be unfair to allow its use at trial. This is in fact precisely what McHugh J said, at least in relation to statutory safeguards such as those which were infringed in Pollard. In the subsequent case of Foster v R (1993) a majority of the court again held that the manner in which a confession was obtained rendered it unfair to use at trial. In that case, an Aboriginal suspect was unlawfully arrested and detained, in circumstances which deprived him of any independent witness who could have corroborated his allegations about the manner in which his confession was obtained. The court did not suggest that this made his confession unreliable: but the fact that he had been wrongly deprived of any chance of corroborating his allegations placed him at a serious disadvantage in a trial in which he wished to contest the police version of events. This is the protective conception of fairness again: pre-trial unfairness created a disadvantage to the accused from which it was the duty of the trial judge to protect him by excluding the confession.

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Admissions and Confessions by the Accused When applying the fairness discretion, therefore, it is necessary to ask the following questions. First, did the police breach the accused’s rights in any way or infringe any of the procedural rules designed to protect a suspect against unfair methods of obtaining evidence, or in any way act unfairly towards the accused?16 It is important to note that the police behaviour to which objection is taken need not necessarily have been illegal. 17 Police conduct, such as lying about the evidence against the accused, or applying some sort of underhand trickery, or an overly aggressive style of interrogation, might also call for the exercise of the fairness discretion: see Duke v R (1989) and Van der Meer v R (1988). In R v Pfennig (1992), for example, the accused had refused to answer police questions. To circumvent the accused’s decision to exercise his right of silence, the police asked a fellow inmate to form a friendship with the accused and to use this friendship to elicit admissions from him. The court ruled that the use of the admissions so obtained would have been unfair to the accused. The second question is whether the breach of rights caused some disadvantage to the accused. Examples of disadvantage might be causing the accused to make an admission which he or she would not otherwise have made, as in Pollard; or depriving the accused of any independent witnesses to corroborate their claim that their confession was obtained through threats or violence, as in Foster. If the answer to both of the questions is ‘yes’, then fairness may require the exclusion of the admission, notwithstanding that it may be perfectly reliable.

10.6

Summary

The following rules apply to admissions and confessions by the accused in criminal proceedings when offered as evidence against the accused: • in prosecutions for indictable offences in New South Wales, Victoria Western Australia and Tasmania, for offences punishable by two years imprisonment in the Northern Territory and in prosecutions for Commonwealth offences, the confession must have been recorded by means of audio or video technology, the exact requirements varying from jurisdiction to jurisdiction; • at common law, the confession must have been made voluntarily: that is, as a result of the exercise of a free choice about whether to speak or remain silent; • a confession will not be held to have been made voluntarily if it was made by a suspect whose will had been overborne by oppressive conduct or if it was procured by means of an inducement; __________________________________________________________________________________________________________________________________________

16 For examples of the kinds of circumstances which might satisfy this requirement, see the discussion under the heading ‘When is evidence illegally or improperly obtained’, in Chapter 18: Discretions to Exclude Evidence. 17 Foster v R (1993) 113 ALR 1, 6–7. 187

Principles of Evidence • it is also arguable that a confession will be held to have been involuntary if it was made by a suspect who did not understand the nature of the right to remain silent, or who lacked the capacity to make a free choice, even if no external pressure to confess was applied; • under the uniform evidence legislation, an admission is inadmissible if the admission or the making of it were influenced by violent, oppressive, inhuman or degrading conduct, or by the threat of such conduct: s 84; • evidence of an admission by the accused is also inadmissible under the uniform evidence legislation unless the circumstances in which it was made were such as to make it unlikely that its truth was adversely affected: s 85; • at both common law and under the uniform evidence legislation, an admission by the accused is also subject to discretionary exclusion if, given the circumstances in which it was made, its use would be unfair; ❍ its use might be unfair if the circumstances in which it was made were such as to bring its reliability into question; ❍ its use might also be unfair if its admission would create a disadvantage to the accused flowing from the breach by the police of one of his or her rights or of a procedural rule designed to protect suspects from unfair methods of investigation, or flowing from some other unfair method of investigation used by the police; • finally, evidence of an admission may also be subject to discretionary exclusion on public policy grounds: see Chapter 18: Discretions to Exclude Evidence.

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Admissions and Confessions by the Accused

Admissions and confessions by the accused No

Is the ‘admission’ relevant? Yes Is the ‘admission’ subject to statutory recording requirements?

Yes

No

No

Have those requirements been satisfied? Yes

mon Com w la Was the admission made voluntarily? Was the admission procured by means of oppressive conduct or an inducement? Did the accused understand the right to silence?

THE

Uni evid form legi ence slat ion

EVIDENCE

Was the admission or the making of it influenced by violent, oppressive, inhuman or degrading conduct? No Were the circumstances in which the admission was made unlikely to have adversely affected its truth?

Yes

IS Yes

INADMISSIBLE No

No

Yes

No

Does the admission appear to be reliable? Yes

The evidence may be excluded by discretion on grounds of fairness

Yes

Was the admission procured by means of some illegality, unfairness or impropriety? No THE EVIDENCE IS ADMISSIBLE

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The evidence may be excluded by discretion on public policy grounds

CHAPTER 11

JUDGMENTS AND CONVICTIONS

11.1

Introduction

11.1.1 Overview This chapter deals with some aspects of the use in a civil or criminal trial of a decision made by a court in earlier legal proceedings. The aspect which is covered is the use of an earlier judgment or conviction as a means of proving the facts upon which the judgment must have been based. The chapter does not cover the following topics: issue estoppel, the principle of res judicata, and the pleas of autrefois convict and autrefois acquit. The reason for omitting these topics is that they are properly classified as part of the relevant area of substantive or procedural law, rather than as part of the law of evidence.

11.1.2 Relevance of judgments and convictions Questions of witness credibility aside (as to which, see Chapters 14 and 15), evidence of a judgment or conviction might be used in either of two ways: first, to prove the fact of the judgment or conviction; and secondly, to prove the existence of the facts implied by the judgment or conviction. The first of these uses is undoubtedly permitted; if the issue is, for example, whether a person has been convicted of a particular offence, then evidence of their conviction for that offence is undoubtedly admissible. It is, moreover, clearly conclusive of the issue. This chapter is, therefore, concerned with the second of the above uses: where, for example, the issue is whether the person was actually guilty of the offence for which they were convicted. Evidence of the conviction might well be thought relevant to (although obviously not conclusive of) the question of guilt. But is it admissible? Further examples of cases in which the question might arise include the following: • the plaintiff in defamation proceedings has been referred to by the defendant newspaper as a ‘thief’; is the plaintiff’s conviction for theft admissible in support of a defence of justification, ie, a defence that the defamatory remark was true? • the plaintiff in negligence proceedings is suing the defendant in relation to injuries received in a motor vehicle accident; the defendant has earlier been convicted of careless driving on charges arising out of the accident; is the fact of the conviction admissible to prove that the defendant was negligent?

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Principles of Evidence • alternatively, if the defendant driver was actually acquitted in the criminal proceedings, could he or she lead evidence of that fact to disprove the claim of negligence? • alternatively, if the allegedly negligent driver had been driving in the course of his or her employment, and the plaintiff has chosen to sue the employer as vicariously liable for the employee’s negligence, is evidence of the employee’s conviction for careless driving admissible against the employer?

11.1.3 Arguments for exclusion and admission In each of the examples, evidence of the previous judgment or conviction appears to offer a convenient shortcut to proof of one or more of the facts in issue in the subsequent proceedings. If the facts in issue in both the present and previous proceedings are the same, and the decision of the tribunal of fact in the previous proceeding indicates that the tribunal was satisfied as to the existence or non-existence of one or more of those facts in issue, then why should the judgment or conviction not be admitted as evidence of those facts in issue? Why should the parties in the subsequent proceedings have to go to the trouble of proving facts which have already been litigated? The answer often given is that the previous judgment or conviction merely represents the opinion of the tribunal of fact in the previous proceedings, an opinion which is not in itself of any relevance. What is relevant of course, is the evidence upon which the previous judgment was based; but of that, the previous judgment tells us nothing. Unfairness might also result if the party against whom evidence of the earlier judgment or conviction is to be led was not involved in the earlier proceedings, so did not have an opportunity to test the evidence upon which the judgment was based. In the vicarious liability example above, for example, the employer would not have been a party to the criminal proceedings against the employee, so would not have had an opportunity to test the evidence. It might therefore seem unfair to admit evidence of the employee’s conviction in the subsequent negligence proceedings against the employer. There are nevertheless circumstances where the admission of evidence of the previous judgment seems appropriate. First, if the party against whom the evidence is to be led was a party to the earlier proceedings, then they would have had an opportunity to contest the evidence on which the judgment or conviction was based. Secondly, if the previous proceedings were criminal proceedings and the result was a conviction, then the tribunal of fact must have been satisfied beyond reasonable doubt of the existence of the facts necessary for the conviction. Given the high standard of proof, it can be assumed that the verdict is significantly more likely to be right than wrong. This suggests that the conviction is indeed a relevant fact, notwithstanding that it can be characterised as merely an opinion. Moreover, excluding 192

Judgments and Convictions evidence of the conviction would cause a wasteful duplication of time and cost; and if the witnesses in the criminal trial were no longer available to give evidence in the civil trial, might unfairly deprive the party seeking to lead the evidence of a fully justified verdict.

11.2

Criminal convictions in civil proceedings

11.2.1 Common law jurisdictions The English Court of Appeal’s decision in Hollington v Hewthorn (1943) stands for the proposition that in civil proceedings a conviction in a criminal proceeding is not admissible as evidence of the facts implied by the conviction. The decision has frequently been criticised and in several Australian jurisdictions it has been overruled: see Evidence Act 1939 (NT), s 26A; Evidence Act 1977 (Qld), s 79; Evidence Act 1929 (SA), s 34a; Evidence Act 1910 (Tas), s 76(4)(b); and Evidence Act 1958 (Vic), s 90. In Western Australia, the Supreme Court has also rejected the rule in Hollington v Hewthorn: see Mickelberg and Mickelberg v Director of Perth Mint (1986). The rule has also been sidestepped by decisions such as that in Moore v Giofrelle (1952), where it was held that a person’s failure to appear to answer a charge of which they had notice is tantamount to an admission of guilt. The rule in Hollington v Hewthorn also has no application to cases where the accused pleaded guilty, a guilty plea being treated as an admission against interest.

11.2.2 Uniform evidence legislation The position under the uniform evidence legislation is largely the same as that which applies in those Australian jurisdictions which have overruled the decision in Hollington v Hewthorn, although this end is achieved by slightly different means. The starting point of the uniform evidence legislation is s 91, which renders inadmissible a previous judgment or conviction when offered as evidence of the facts implied by the judgment or conviction: (1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding. (2) Evidence that, under this Part, is not admissible to prove the evidence of a fact may not be used to prove that fact even if it is relevant for another purpose.

This exclusionary rule is, however, subject to two exceptions, the first of which is discussed below. It is the second exception, contained in s 92(2), which overrules Hollington v Hewthorn: In a civil proceeding, subsection 91(1) does not prevent the admission or use of evidence that a party, or person through or under whom a party claims, has been convicted of an offence, not being a conviction:

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Principles of Evidence (a) in respect of which a review or appeal (however described) has been instituted but not finally determined; or (b) that has been quashed or set aside; or (c) in respect of which a pardon has been given.

Perhaps the most important point to note about this exception is that it only applies when the party against whom the evidence of conviction is being led is the person who was actually convicted. To return to the negligent driving example above, the exception would therefore allow the use of the careless driving conviction in a negligence action against the employee driver, but not in an action against the employer.

11.3

Other uses of judgments and convictions

11.3.1 Civil judgments As a general rule, a civil judgment is not admissible as evidence of the facts upon which it must have been based, although where the parties are the same, it may give rise to the doctrine of res judicata or an issue estoppel. This is the same at both common law and under the uniform evidence legislation. However, the view taken by the drafters of the uniform evidence legislation – and shared by this author – is that the law relating to res judicata and issue estoppel is not part of the law of evidence. For that reason the uniform evidence legislation expressly leaves this area of law untouched: see 93(c). One exception to the general rule referred to above, however, is to be found in s 92(1). It provides that grants of probate, letters of administration or similar court orders, may be used to prove the death, or date of death, of a person, or the due execution of a testamentary document. The exception applies in both civil and criminal proceedings.

11.3.2 Criminal convictions in defamation proceedings The drafters of the uniform evidence legislation chose to avoid making any direct provision for the use of criminal convictions in defamation proceedings. Section 93(a), therefore, provides that s 91 does not affect the operation of ‘a law that relates to the admissibility or effect of evidence of a conviction tendered in a proceeding (including a criminal proceeding) for defamation’. Several Australian jurisdictions have enacted such laws: see Defamation Act 1974 (NSW), s 55(2); Evidence Act 1958 (Vic), s 91; Evidence Act 1929 (SA), s 34a; and Evidence Ordinance 1971 (ACT), s 78. The general thrust of these provisions is to make the criminal conviction admissible to prove the truth of an imputation to the effect that the person has committed such an offence.

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Judgments and Convictions

11.3.3 Acquittals Evidence of an acquittal is not admissible to prove that the person acquitted was innocent of the crime charged. Again, this is true at both common law and under the uniform evidence legislation, with the Australian Law Reform Commission justifying this rule with the comment that ‘an acquittal establishes no more than that the Crown failed to prove the accused’s guilt beyond reasonable doubt’.1

11.3.4 Criminal convictions in criminal proceedings The admissibility of a criminal conviction in criminal proceedings is not specifically dealt with by the uniform evidence legislation. Several different uses can be imagined. First, the conviction may be put forward as relevant to the credibility of a witness (including the accused). In such cases, the conviction is not offered as proof of a fact that was in issue in the proceedings which resulted in the conviction; this use therefore falls outside the scope of the rules discussed in this chapter, and is instead governed by the rules dealt with in Chapter 14: Credibility Evidence and Chapter 15: The Character and Credibility of the Accused. Secondly, where the acts to which the convictions relate are admissible as tendency or coincidence evidence. In such cases, the conviction creates an estoppel preventing the accused from denying guilt. Estoppels, as already noted, are expressly excluded from the scope of the uniform evidence legislation by virtue of s 93(c), and are not discussed in this work. Thirdly, the fact that someone other than the accused has been convicted of an offence may be put forward as evidence of the fact that the accused is also guilty of an offence. The conviction of a thief might, for example, be offered as evidence at the trial of the handler; or the conviction of a principal offender might be offered as evidence at the trial of an accessory. At common law, the general rule is that such uses are forbidden, a rule to which admissibility of the conviction of a principal at the trial of an accessory is a (possibly disappearing) exception: see R v Turner (1832), R v Dawson (1961) and R v Triffett (1992). Under the uniform evidence legislation, the general rule is retained and the exception abolished: this is because the use of one person’s conviction to prove the guilt of another clearly involves its use as evidence of a fact that was in issue in the earlier proceedings, a use forbidden by s 91(1).

11.5

Summary

At both common law and under the uniform evidence legislation: • the verdict in one proceeding is, as a general rule, inadmissible in a subsequent proceeding as evidence of the facts implied by the verdict; __________________________________________________________________________________________________________________________________________

1

Evidence, ALRC 26, 1985, Vol 1 [781]. 195

Principles of Evidence • the most important exception to this general rule allows the criminal conviction of a party to subsequent civil proceedings to be used as evidence of that party’s guilt of the crime for which they were convicted; • this exception is available under the uniform evidence legislation and in several other Australian jurisdictions, but not at common law.

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CHAPTER 12

TENDENCY AND COINCIDENCE EVIDENCE

12.1

Introduction

12.1.1 Overview This chapter is the first of two which deal with evidence which – in simplistic terms – is designed to show that a person has a demonstrated ‘tendency’ to behave in a particular way, and that they are therefore likely to have behaved in accordance with this tendency on the occasion in question; or to show that it would be too much of a ‘coincidence’ for certain apparently related events to have occurred unless they occurred deliberately, or in a particular way. By far the most important kind of tendency and coincidence evidence is that led by the prosecution against the accused in criminal proceedings. This is the subject of the next chapter. This chapter deals with the following kinds of tendency and coincidence evidence: • tendency and coincidence evidence led in civil proceedings; • tendency and coincidence evidence in criminal proceedings relating to a third party; • tendency and coincidence evidence relating to the complainant in sexual offence trials; and • tendency and coincidence evidence led by one accused against a coaccused.

12.1.2 The uniform evidence legislation The uniform evidence legislation contains a tendency rule (s 97) and a coincidence rule (s 98). These rules are of general application. That is, they apply in both civil and criminal proceedings, and to evidence led both by the defence and the prosecution. Where tendency or coincidence evidence is led by the prosecution in criminal proceedings, however, the test for admissibility is more demanding than that which generally applies. For that reason, tendency or coincidence evidence led by the prosecution in criminal proceedings is considered separately in the next chapter. The tendency and coincidence rules are only concerned, however, with evidence which is led on the basis that it is relevant to the facts in issue; they do not deal with the admissibility of such evidence when led on the basis that it is relevant to the credibility of a witness: s 94(1). The use of evidence for that purpose is discussed in Chapter 14: Credibility Evidence. Nor do the tendency and coincidence rules apply when a person’s character, reputation, conduct or 197

Principles of Evidence tendency is a fact in issue, as it might be, for example, in defamation proceedings: s 94(3). The tendency and coincidence rules continue to apply, however, even if the evidence is relevant and admissible for another purpose: s 95. This means that even when evidence is relevant and admissible for another purpose it can only be used as tendency or coincidence evidence if it meets the conditions which apply in respect of tendency and coincidence evidence. The Australian Law Reform Commission took the view that tendency or coincidence evidence is generally of little probative value, and that its admission has distinct disadvantages. Tendency and coincidence evidence is, therefore, inadmissible unless two conditions are met: • the party adducing the evidence has given reasonable notice in writing to each other party of their intention to adduce the evidence: ss 97(1)(a) and 98(1)(a) (for the form this notice must take see s 99 and the regulations made thereunder); and • the evidence must have ‘significant probative value’, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence: ss 97(1)(b) and 98(1)(b). The court may dispense with the notice requirements: ss 97(2)(a), 98(3)(a) and 100. Nor do the notice requirements apply if the evidence is ‘adduced to explain or contradict [tendency or coincidence] evidence adduced by another party’: ss 97(2)(b) and 98(3)(b). The more important criterion for admissibility, however, is the probative value of the evidence. ‘Probative value’ is defined in the Dictionary section of the legislation as ‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue’. The way in which the probative value of tendency and coincidence evidence can be assessed is discussed at length in the next chapter. For the moment, it is sufficient to note that probative value is a function of several things, including the degree to which the tendency or coincidence evidence has been established, and the strength of the inference from that evidence to the facts in issue. The phrase ‘significant probative value’ really defies translation, although Lehane J has suggested that it means evidence which ‘could rationally affect the assessment of the probability of the fact in issue to a significant extent’, and Hunt CJ has suggested that ‘significant’ means ‘important’ or ‘of consequence’.1

__________________________________________________________________________________________________________________________________________

1

See Zaknic Pty Ltd v Svelte Corporation Pty Ltd (1995) 140 ALR 701, 705; and R v Lockyer (1996) 89 A Crim R 457. 198

Tendency and Coincidence Evidence

12.1.3 Common law The situation at common law is fundamentally different. The similar fact rule is the common law’s equivalent to the tendency and coincidence rules of the uniform evidence legislation. Unlike the tendency and coincidence rules, however, the similar fact rule only applies to evidence led by the prosecution in criminal proceedings. For that reason, discussion of the similar fact rule is largely confined to the next chapter. Tendency and coincidence evidence led in civil proceedings, or by the defence in criminal proceedings, is generally considered to be subject only to the requirement of relevance. The only exception to this general rule – and it is a statutory rather than a common law exception – is tendency or coincidence evidence relating to complainants in sexual offence trials.

12.2

What are tendency and coincidence evidence?

12.2.1 Tendency evidence Section 97(1) of the uniform evidence legislation defines tendency evidence as ‘Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had’ when used to prove ‘that a person had a tendency ... to act in a particular way, or to have a particular state of mind’. Tendency evidence, in other words, is evidence designed to prove that because a person has behaved in a particular way on occasions other than that which is the subject of the proceedings, they are likely to have acted in the same way on the occasion which is the subject of the proceedings.

12.2.2 Coincidence evidence Coincidence evidence, on the other hand, is defined in s 98(1) of the uniform evidence legislation as ‘evidence that two or more related events occurred’ when led to prove ‘that, because of the improbability of the event occurring coincidentally, a person did a particular act or had a particular state of mind’. Events are ‘related events’, according to s 98(2), if ‘they are substantially and relevantly similar ’ and ‘the circumstances in which they occurred are substantially similar’. This drafting is arguably defective, because it uses a test of similarity between events in order to determine whether evidence falls within the scope of the coincidence rule when the test should probably have been used to determine whether or not the evidence satisfies the requirement of ‘significant probative value’. The effect of the drafting is that evidence of two or more events which do not satisfy the requirement of similarity falls outside the scope of the coincidence rule – and is therefore admissible if relevant – even if the evidence is being used for the purpose of proving that ‘because of the

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Principles of Evidence improbability of the events occurring coincidentally, a person did a particular act or had a particular state of mind’. This cannot have been intended. Coincidence evidence is typically used in one of two situations. First, where several apparently similar events have occurred but the nature of those events is uncertain: were they, for example, all crimes or could they all have been accidents? Coincidence evidence is then used to eliminate the possibility of accident. Secondly, where the nature of the events is certain but the identity of the person or persons involved in them is not: could, for example, several similar crimes have all been committed by different people, or are they so similar that they must all have been committed by the same person? Coincidence evidence is relatively uncommon, and all the examples discussed in this chapter – apart from Sheldon v Sun Alliance (1988) below – involve tendency evidence rather than coincidence evidence. Coincidence evidence will, however, be discussed in some detail in the next chapter.

12.3

Tendency and coincidence evidence in civil proceedings

The following are examples of tendency and coincidence evidence – or similar fact evidence as it is usually called at common law – which might be offered in civil proceedings. The first three are examples of tendency evidence; the fourth of coincidence evidence: • the tenant of a shop in a shopping mall claimed that it had been induced to enter the tenancy as a result of knowingly false representations made by the lessor; in order to prove that the representations had been made, it wished to lead evidence from several other tenants who claimed that identical representations had also been made to them: see Mister Figgins v Centrepoint Freeholds (1981); • a party to a contract for the purchase of guano claimed that it had been a condition of the contract that in quality the guano should be ‘equal to Peruvian guano’; in order to prove this, the purchaser wished to lead evidence to the effect that the vendor had entered into contracts containing this condition with other persons: see Hollingham v Head (1858); • the assignee of a lease claimed compensation for the repudiation of the lease, performance of which it claimed had been guaranteed by the defendant; the defendant claimed that the guarantee had been forged; the defendant wished to lead evidence designed to show that certain persons in whose interest it was to claim that the guarantee had been provided had been involved in various disreputable acts including the backdating of documents and transactions, the production for fraudulent purposes of false documents and the placing on documents of unauthorised and false signatures; this evidence was offered on the basis that it made it more likely that the guarantee was a forgery: see Zaknic v Svelte Corporation Pty Ltd (1995);

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Tendency and Coincidence Evidence • following a fire in a family home, the insurer refused to pay the insured, claiming that the insured had set fire to the house themselves; in order to prove this, the insurer wished to lead evidence of several other fires which had occurred in homes occupied by the insured, and in respect of which insurance claims had also been made: see Sheldon v Sun Alliance Ltd (1988). At common law, tendency and coincidence evidence is generally considered to be admissible if relevant. There is a slender line of authority which suggests that an exclusionary rule does apply: see Sheldon v Sun Alliance Ltd (1988). But the prevailing view is that there is no civil equivalent to the similar fact rule applying in criminal proceedings and discussed in the next chapter: see Hollingham v Head (1858), and Mister Figgins v Centrepoint Freeholds (1981). The requirement of relevance may nevertheless be difficult to satisfy, because a desire to avoid a proliferation of collateral issues may make the court reluctant to find that tendency or coincidence evidence does have any real bearing on the facts in issue. Of the examples given above, it was only in Mister Figgins v Centrepoint Freeholds (1988) and in respect of some of the fires in Sheldon v Sun Alliance (1988), that the evidence was admitted. Under the uniform evidence legislation, the tendency and coincidence rules are of general application, so that such evidence is only admissible if it meets the conditions set out above. In particular, the evidence must be held to have significant probative value. Applying this test, the court rejected the tendency evidence offered in Zaknic (1996).

12.4

Tendency and coincidence evidence in criminal proceedings: third parties

This section of the chapter deals with tendency and coincidence evidence in criminal proceedings relating to ‘third parties’; that is, anyone other than the accused. The most common example of such evidence is evidence relating to the alleged tendencies of the complainant in a sexual offence trial. Because there are special statutory regimes regulating the use of such evidence it is given separate consideration. Other examples of tendency evidence relating to third parties include the following: • evidence that the deceased in a murder trial had a history of violence – specifically, a 17 year old conviction for manslaughter – where used to support a plea of self-defence, on the basis that the deceased’s history of violence made it more likely that he was the aggressor, or that it increased the accused’s apprehension of violence: see R v Ellem (No 1) (1995); • where the accused was charged with assaulting police officers and his defence was that he had merely been attempting to escape from their assault on him, evidence from a witness who testified that he had been assaulted by the same police officers in a similar manner and in similar circumstances: see R v Harmer (1985); 201

Principles of Evidence • where the accused claimed that his confession had been induced by the police officer, and the police officer agreed that he had used the same interrogation techniques when questioning another person, evidence from that person to the effect that he too had been induced to confess: see Duff v R (1979); • where several persons were charged with assault in circumstances in which the alleged victim had been found in a state of near hysteria, this state of hysteria lending support to the allegation of assault, evidence to show that the victim was particularly prone to hysteria, so that he might have been hysterical even if he had not been assaulted: see Toohey v Metropolitan Police Commissioner (1965); and • where the accused was charged with murdering his child in circumstances where the only adults present at the time at which the child received its fatal injuries were the accused and his de facto spouse, evidence suggesting that the de facto spouse had a tendency to inflict injuries on her children: see R v Lockyer (1996). At common law, the only limitation on the admission of tendency and coincidence evidence relating to a third party is the requirement of relevance. It will, nevertheless, be important to demonstrate a logical connection between the tendency and coincidence evidence and the occasion which is the subject of the charge. In R v Harmer (1985) and Toohey (1965) the court held the evidence admissible; in Duff (1979) and R v Ellem (1995), on the other hand, the evidence was rejected. Under the uniform evidence legislation the evidence must have ‘significant probative value’. This suggests that Duff and Ellem would be decided in the same way under the uniform evidence legislation; whether evidence such as that in Toohey and Harmer would be admitted is harder to predict. In R v Lockyer (1996), however, which was decided under the uniform evidence legislation, the court held the evidence to be admissible.

12.5

Tendency and coincidence evidence in sexual offence trials

The ‘third party’ in relation to whom tendency or coincidence evidence is most commonly led is the complainant in a sexual offence trial. This usually takes the form of evidence relating to the complainant’s ‘sexual history’, which might be elicited from the complainant through cross-examination, or from other witnesses. Sexual history evidence is sometimes offered on the basis that it is relevant to the complainant’s credibility, and its use for that purpose is discussed in Chapter 14: Credibility Evidence. In this chapter, the focus is on the relevance of sexual history evidence to the facts in issue. Sexual history evidence offered as relevant to the facts in issue is a form of tendency evidence. The way in which the defence usually attempts to connect sexual

202

Tendency and Coincidence Evidence history evidence to the facts in issue is along the following lines: • the complainant has consented to intercourse with the accused, or outside marriage, or in similar circumstances on previous occasions; • therefore she is likely to have consented to intercourse on the occasion charged. Alternatively, the defence might argue that the accused, knowing of the complainant’s sexual history, believed that she was likely to have been consenting; in other words, the sexual history evidence may be offered as the anchor for a defence of belief in consent. Alternatively, the defence may argue that the complainant has a history of making false allegations of rape or abuse which makes it more likely that she is falsely alleging rape or abuse in relation to the occasion charged: see R v M (1993).

12.5.1 The effect of admitting sexual history evidence The common law allowed very extensive cross-examination of the complainant on the basis that the complainant’s sexual history and behaviour were relevant both to issue and to credit. Such a liberal admission of sexual history evidence was, however, objectionable for two reasons. First, the admission of such evidence is often humiliating, embarrassing or distressing for the complainant, significantly adding to the trauma of a rape trial, and making the complainant feel as if it is she, rather than the accused, who is on trial. Secondly, such evidence is often prejudicial in the sense that it tends to distort the fact-finding process, and make the tribunal of fact act in an irrational manner or on the basis of irrelevant considerations. As L’HeureuxDubé J commented in the Canadian case of R v Seaboyer and Gayme (1991): Rather than negatively affecting decisions of guilt and innocence, the exclusion of evidence of sexual history rationalises such determinations ... [When such evidence is admitted] the guilt or innocence determination is transformed into an assessment of whether or not the complainant should be protected by the law of sexual assault. In my view, it is indisputable that this evidence has such a prejudicial effect.2

The reason why sexual history evidence has this prejudicial effect is that it ‘operates as a catalyst for the invocation of stereotype about women and about rape, such that the entire trial process is distorted and fairness, in any meaningful sense, is subverted’. 3 The tribunal of fact may, for example, subscribe to any of the following stereotypes or ‘rape myths’: that false complaints of rape are common; that a woman who dresses ‘provocatively’ or who is in a public place at night is ‘asking for it’; that men have uncontrollable __________________________________________________________________________________________________________________________________________

2 3

R v Seaboyer and Gayme (1991) 83 DLR (4th) 193, 238. Ibid, 244 (L’Heureux-Dubé J). 203

Principles of Evidence sexual urges which excuse their behaviour; that women whose behaviour does not conform to the traditionally approved sexual roles for women do not qualify as rape victims and effectively lose the right to say ‘no’; that when women say ‘no’ they often mean ‘yes’; that unless a women has been subjected to actual physical violence (which she has resisted) in order to force her to have sex, she cannot have been raped; or that women actually like being overpowered. The widespread acceptance of these myths may make the tribunal of fact give sexual history evidence more weight than it rationally deserves, or deny the complainant the protection of the criminal law by refusing to convict.

12.5.2 Rape shield provisions For the above reasons, legislation has been enacted in all Australian jurisdictions except the Commonwealth with the intention of restricting the admission of such evidence to those cases where it is of genuine probative value.4 These statutory barriers to admissibility are often referred to as ‘rape shield’ laws. Those jurisdictions which have adopted the uniform evidence legislation have retained their rape shield laws; this means that the requirements of the rape shield provision apply in addition to the uniform evidence legislation’s tendency rule requirement of ‘significant probative value’. While they share the same aims, however, the rape shield provisions in the different Australian jurisdictions vary in their detail. 12.5.2.1 In what proceedings do they apply? In all the jurisdictions, the rape shield provisions apply to proceedings for a ‘sexual offence’. This phrase is legislatively defined in each of the jurisdictions by reference to specific offences under the relevant Crimes Act or Criminal Code. Without going into the details of the different definitions, it basically means that the provisions apply when the accused is charged with an offence of rape, indecent assault, child sexual abuse, or an attempt to commit any of these offences. They apply, moreover, to the adducing of evidence both from the complainant through cross-examination and by means of witnesses other than the complainant. 12.5.2.2 Absolute prohibitions: sexual reputation and disposition In all the jurisdictions, with the exception of the Northern Territory, evidence of the complainant’s sexual ‘reputation’ is inadmissible in all circumstances. That is, the court has no discretion to allow such evidence. Evidence of a complainant’s sexual reputation – which may obviously be false – clearly has __________________________________________________________________________________________________________________________________________

4

See Crimes Act 1900 (NSW), s 409B; Evidence Act 1958 (Vic), s 37A; Criminal Law (Sexual Offences) Act 1978 (Qld), s 4; Evidence Act 1906 (WA), ss 36A–36BC; Evidence Act 1929 (SA), s 34i; Evidence Act 1910 (Tas), s 102A; Sexual Offences (Evidence and Procedure) Act 1983 (NT), s 4; Evidence Ordinance 1971 (ACT), s 76G. 204

Tendency and Coincidence Evidence no connection with the facts in issue. The defence cannot, therefore, argue that the complainant’s reputation for promiscuity made it more likely that she consented, or that the accused’s knowledge of the complainant’s reputation for promiscuity made him believe that she was consenting: see R v Ugolini (1989). In Western Australia, there is also an absolute prohibition on ‘evidence relating to the disposition of the complainant in sexual matters’. The same result is achieved, albeit in more circuitous fashion, in Victoria, Queensland and South Australia in relation to evidence which is only relevant because of an inference it may raise as to the ‘general disposition’ of the complainant. This means that sexual history evidence is inadmissible if it merely provides the foundation for an argument that the complainant is likely to have consented because she is a promiscuous person. As Bray CJ commented in R v Gun (1977), the proposition that ‘a willingness to have sexual intercourse outside marriage with someone is equivalent to a willingness to have sexual intercourse outside marriage with anyone’ is patently absurd.5 12.5.2.3 Qualified prohibitions: sexual activities and experience Evidence of the complainant’s sexual activities or experience is, in all the jurisdictions, prima facie inadmissible, but may be adduced with the leave of the court if it meets certain requirements. Before looking at these requirements, it is necessary to define more precisely the scope of the prohibition in each of the jurisdictions. This is because the various prohibitions differ on issues such as whether the prohibition applies to the sexual activities of the complainant with the accused, or to the sexual activities of the complainant which form part of the events which gave rise to the charge: • in New South Wales, the prohibition applies to ‘evidence which discloses or implies that the complainant has or may have had sexual experience or a lack of sexual experience or has or may have taken part or not taken part in any sexual activity’; • in Victoria, the prohibition applies to evidence about the complainant’s ‘sexual activities’, including sexual activities with the accused; • in Queensland, the prohibition applies to evidence about the complainant’s ‘sexual activities with any person other than the defendant’; • in Western Australia, the prohibition applies to ‘evidence relating to the sexual experiences of the complainant, being sexual experiences of any kind, at any time and with any person, not being part of the res gestae of the proceedings’; • in South Australia, the prohibition applies to evidence relating to the __________________________________________________________________________________________________________________________________________

5

R v Gun ex p Stephenson (1977) 17 SASR 165, 168. 205

Principles of Evidence complainant’s ‘sexual activities before or after the events of and surrounding the alleged offence (other than recent sexual activities with the accused)’; • in Tasmania, the prohibition applies to ‘any evidence which discloses or implies sexual experience of [the complainant], other than sexual experience which forms part of the events or circumstances out of which the charge arises’, where ‘sexual experience’ is defined to include ‘sexual activity or sexual behaviour’, ‘disposition ... in sexual matters’ and ‘lack of sexual experience’; • in the Northern Territory, the prohibition applies to evidence of ‘the complainant’s general reputation as to chastity’ and to ‘the complainant’s sexual activities with a person other than the defendant’; and • in the Australian Capital Territory, the prohibition applies to evidence ‘relating to any sexual experience of the complainant with a person other than the accused’. Phrases such as ‘sexual activities’ and ‘sexual experience’ have been interpreted fairly broadly: • they cover conversations about sex, even where the conversation is not about any sexual acts which have actually occurred: see R v Starkey (1987) and R v White (1989); • to ask whether or not the complainant is a virgin is also a question about sexual activities or experience, even if the answer is that she is: see R v Byczko (No 1) (1977); • but it is unclear whether a question about the complainant’s use of contraception is a question about sexual activities: see R v Warrell (1993); • nor is it clear whether a question about the complainant’s style of dress is a question about her sexual activities or experience; but if the purpose of asking such questions is to suggest a propensity on the part of the complainant to engage in sexual activities then presumably the statutory prohibition should apply, even if no sexual acts are alleged. 12.5.2.4 When can leave be granted? Evidence of these prohibited matters can, however, be adduced with the leave of the court. Although they differ as to the precise test to be applied, the essence of all tests is a requirement of significant or substantial probative value: • in New South Wales, leave can only be granted if the evidence is one of several specified kinds of sexual history evidence and the ‘probative value’ of the evidence ‘outweighs any distress, humiliation or embarrassment which the complainant might suffer as a result of its admission’; the kinds of sexual history evidence in respect of which leave may be granted include (among other things): 206

Tendency and Coincidence Evidence evidence of sexual experience or activities which took place at about the time of the alleged offence or which form part of a connected set of circumstances with the alleged offence; ❍ evidence of an existing or recent relationship between the accused and the complainant; and ❍ where intercourse is denied by the accused and evidence showing the presence of semen, pregnancy, disease or injury has been led to prove that intercourse took place, evidence designed to show that these things may not be attributable to the alleged intercourse with the accused; in Victoria, leave can only be granted if the evidence has ‘substantial relevance to the facts in issue’, and it may not be so regarded ‘by reason only of any inference it may raise as to general disposition’; moreover, the application for leave must be made in writing and given to the Director of Public Prosecutions 14 days before the trial, and must set out the initial questions to be asked and the scope of the questioning sought to flow from the initial questioning; in Queensland, as in Victoria, leave can only be granted if the evidence has ‘substantial relevance to the facts in issue’, and may not be so regarded ‘by reason only of any inference it may raise as to general disposition’; if, however, the evidence is ‘evidence of an act or event that is substantially contemporaneous with any offence with which a defendant is charged ... or that is part of a sequence of acts or events that explains the circumstances in which such an offence was committed’, then the evidence is to be regarded as having ‘substantial relevance to the facts in issue’; in Western Australia, leave can only be granted if the evidence has ‘substantial relevance to the facts in issue’ and if ‘the probative value of the evidence ... outweighs any distress, humiliation or embarrassment which the complainant might suffer as a result of its admission’; in South Australia, leave can only be granted if the court is satisfied that the evidence has ‘substantial probative value’ and that its admission ‘is required in the interests of justice’; leave can not be granted if the purpose of adducing the evidence is merely to ‘raise inferences from some general disposition’ of the complainant; moreover, in exercising his or her discretion, the judge is required to give effect to the principle that ‘alleged victims of sexual offences should not be subjected to unnecessary distress, humiliation or embarrassment’; in Tasmania, leave can only be granted if the evidence has ‘direct and substantial relevance to a fact or matter in issue’ and ‘the probative value of such evidence outweighs any distress, humiliation or embarrassment’ which the complainant might suffer as a result of its admission; in the Northern Territory, leave can only be granted if the evidence has ‘substantial relevance to the facts in issue; where the evidence is of sexual ❍

•

•

•

•

•

•

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Principles of Evidence activities rather than reputation, the evidence cannot be regarded as having substantial relevance ‘by reason only of an inference it may raise as to general disposition’; it should be regarded as having substantial relevance, however, where it is ‘evidence of an act or event that is substantially contemporaneous with an offence with which a defendant is charged, or that is part of a sequence of acts or events that explain the circumstances in which the alleged offence was committed’; and • in the Australian Capital Territory, leave can only be granted if the ‘judge is satisfied that a refusal to allow the evidence to be adduced or the question to be asked would prejudice the fair trial of the accused’.

12.5.3 Granting of leave: some examples Although the clear intention of the rape shield provisions has been to limit the amount of sexual history evidence which is led at trial, courts have often granted leave in situations where the sexual history evidence would appear to have been of very limited probative value. A recent Victorian study, for example, found that 40% of complainants were questioned in relation to their sexual history with the accused or others with the leave of the court, and that another 30% were questioned without leave being sought.6 These figures suggest two things. First, that judges are uncomfortable with a discretion which requires them to take account of the interests of persons other than the accused: see, for example, the judgment of Mahoney JA in R v Morgan (1993). Secondly, that courts are continuing to find persuasive relevance arguments which are based on rape myths and stereotypes. For these reasons, rape shield provisions have not been particularly effective at eliminating irrelevant and prejudicial cross-examination. Indeed, an examination of some of the cases referred to below would suggest that courts are failing to apply the statutory tests of admissibility, and are admitting some evidence which should clearly be rejected. Courts have, for example, been willing to grant leave to adduce sexual history evidence in all the following situations: • where the argument for admitting the sexual history evidence is something other than a ‘general’ disposition to consent; • leave may be granted where the sexual history evidence is intended to show that the complainant has unusual sexual tastes which supposedly make it more likely that she would have consented in the particular circumstances of the alleged rape. The courts are particularly likely to grant leave if the circumstances of the alleged rape are such as to give rise in themselves to an inference of non-consent. So if the complainant was __________________________________________________________________________________________________________________________________________

6

Rape Law Reform Evaluation Project, Evaluation of the Crimes (Rape) Act 1991: Executive Summary, 1997, Victoria: Department of Justice, p 34. 208

Tendency and Coincidence Evidence

•

•

•

•

•

•

allegedly raped by several men, it has been held to be substantially relevant that she had freely participated in group sex on other occasions: R v De Angelis (1979). Or if the complainant was tied up or bound on the occasion in question it has been held to be substantially relevant that she had consented to intercourse on other occasions when she has been bound: R v Starkey (1987). Once one takes into account the differences between the consensual occasions and the alleged rape, however, the true probative value of this evidence is often very, very slight; leave may also be granted in relation to consensual sexual activities closely connected in time with the alleged rape, either on the basis that the engaging of consensual sexual intercourse with persons other than the accused makes it more likely that the complainant also consented to intercourse with the accused, or that knowing of the consensual sexual activities, the accused may have believed that the complainant was also consenting to intercourse with him: see R v Viola (1982), Gregory v R (1983) and R v McGarvey (1987); leave may be granted where the evidence is intended to show a tendency on the part of the complainant to make false allegations of rape or abuse: see R v M (1993). leave may be granted in respect of sexual activities subsequent to the alleged rape, on the basis that if the complainant had been raped she would have been unlikely to have engaged in consensual intercourse thereafter: see R v Morgan (1993); if the sexual activities or experience were with the accused, the court will often be willing to grant leave (note that under some rape shield provisions, such questions are not prohibited); the inference argued for from such acts is not of a general tendency to consent to sexual intercourse, but of a tendency to consent to sexual intercourse with a specific person: see R v De Angelis (1979), R v Starkey (1987) and R v Gun (1977); if the prosecution wishes to argue that lack of sexual experience makes the complainant unlikely to have consented, leave will usually be granted: see R v Byczko (1977); leave may also be granted where the accused claims that his knowledge of the complainant’s past sexual activities made him believe that she would be likely to consent, although appellate courts have indicated that the accused’s knowledge can seldom be of substantial relevance to belief in consent, because a person’s beliefs about whether or not the complainant was consenting would ordinarily be based on what the complainant actually said or did at the time: see R v De Angelis (1979), R v McGarvey (1987) and R v Richardson (1989).

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Principles of Evidence

12.6

Tendency and coincidence evidence in joint trials

Where two or more persons are jointly charged with a crime, a common method of defending the charge is for each to attempt to lay the blame on the other. This is called a ‘cut-throat’ defence. In order to buttress a cut-throat defence, one accused may attempt to show that his or her co-accused is more likely to have committed the crime because of his or her criminal tendencies or propensity. For example: • In R v Lowery and King (No 3) (1972), the two accused were charged with the sadistic murder of a teenage girl; each blamed the other for the murder; Lowery led evidence of his own good character with a view to establishing that he was unlikely to have committed such a crime; King, on the other hand, led expert evidence from a psychologist who had administered various intelligence and personality tests to both Lowery and King; the results of the test suggested that Lowery had a psychopathic personality with sadistic tendencies; the jury were invited to infer from this evidence that it was Lowery, rather than King, who had committed the murder. • In R v Darrington and McGauley (1980), the two accused were charged with the murder of Darrington’s brother-in-law; McGauley, who admitted having shot the deceased, claimed that he had been manipulated into doing so by Darrington; he wished to lead evidence to the effect that Darrington had earlier procured the murder of her husband, the deceased’s brother. • In R v Gibb and McKenzie (1983) the three accused, Gibb, McKenzie and Claridge were jointly charged with murder; Gibb’s defence was one of alibi; McKenzie and Claridge claimed that they were afraid of Gibb, and had been acting under his duress; they wished to lead evidence of his propensity and reputation for violence. • In Unsworth v R (1986), the two accused were jointly charged with the axe murder of Unsworth’s ex-father-in-law; both admitted being present at the time of the murder; each claimed that the other had administered the fatal blows; each wished to lead evidence of the fact that the other had been convicted and imprisoned for crimes of violence. • In R v Webb and Hay (1992), the two accused were charged with the murder of a man with whom they had been drinking; the deceased had, in essence, been kicked to death; both the accused had admitted having kicked the deceased to the head and body; Webb wished to lead evidence to the effect that Hay became violent when drunk and that she had been guilty of violent conduct towards the victim of a robbery in respect of which she had been convicted of receiving.

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Tendency and Coincidence Evidence

12.6.1 Common law At common law such evidence is, in theory at least, admissible if relevant. As the Victorian Supreme Court commented in R v Lowery and King (No 3) (1972): It is one thing to say that it is unjust or unfair for the Crown to put a person in danger of conviction by leading such evidence against him. It is, however, a very different thing to say that he is to be restricted in defending himself by excluding such evidence when it tends to rebut his guilt or to prove his innocence ... In the latter class of case one important differentiating consideration is the need for an accused person to be left unfettered in defending himself by any legitimate means against the charge made against him.7

In other words, the only limitation on an accused person’s right to lead evidence which inculpates his or her co-accused is the requirement of relevance. In R v Darrington and McGauley (1980), however, the Supreme Court suggested that the right of the accused to lead exculpatory evidence in a joint trial must be subject to discretionary control: First, the exercise of an uncontrollable right to adduce any relevant evidence tending to exculpate one of several accused jointly charged with a crime and tending to inculpate another of them may subject the jury to intellectual and emotional burdens of such a character that the administration of criminal justice by jury trial is quite stultified. Second, to obviate or lessen burdens of that character by the exercise of the power to order separate trials of several accused jointly charged would in some cases frustrate one of the primary purposes of the criminal law, by enabling a party to a criminal offence to secure acquittal by giving at his separate trial an explanation, of the circumstances proved against him, which exculpated him and which was controvertible only by one or more of the others charged. Third, the probative value, rationally considered, of what the Court comprehended [in Lowery and King] ... by the expression ‘all legitimate and relevant means’ may in some cases be ... slight enough to justify ... subordination of the interest of the accused who seeks to utilise that particular means of defence to those other interests which the system of trial of criminal issues by jury is designed to serve.8

For these reasons, the requirement of relevance is applied very strictly indeed. Of the cases referred to above, it was only in Lowery and King (1972) and Gibb and McKenzie (1983) that the court considered that the tendency evidence should have been admitted as relevant to the issue. Lowery and King was distinguished on fairly similar facts in the case of R v McBride (1983). In Unsworth v R (1986), the court noted that both accused had been convicted of very similar offences, and the evidence did not establish that either had a greater propensity for violence than the other. The court therefore held that __________________________________________________________________________________________________________________________________________

7 8

R v Lowery and King (No 3) [1972] VR 939, 947. See also Lowery and King v R (1974). R v Darrington and McGauley [1980] VR 353, 385. 211

Principles of Evidence the trial judge had properly limited the use of the prior convictions to the question of credibility. In Darrington and McGauley (1980), the court felt that proof of the fact that Darrington had murdered her husband would not greatly assist the jury, given McGauley’s very significant admission that he had shot the deceased. Similarly, in Webb and Hay (1992), proof of Hay’s violent propensity would merely have made it more likely that she had engaged in violence against the deceased, a fact which was not denied. What these cases suggest, therefore, is that courts will very closely scrutinise the use of tendency evidence in joint trials, and will be unwilling to allow one accused to prejudice his or her co-accused in the eyes of the jury unless the evidence really does have legitimate probative value.

12.6.2 The uniform evidence legislation The position under the uniform evidence legislation is probably fairly similar to that which applies at common law, at least in practice. Under the uniform evidence legislation, tendency or coincidence evidence led by one accused against another must have ‘significant probative value’ in order to be admissible. At common law, in theory at least, it need only be relevant; but an examination of the cases discussed above suggests that a requirement of ‘significant probative value’ is perhaps already being applied. Under the uniform evidence legislation, the evidence is also subject to discretionary exclusion on grounds of unfair prejudice to the accused: see Chapter 18: Discretions to Exclude Evidence. The position is the same at common law, given the ruling in Darrington and McGauley (1980) that the admission of tendency evidence led by one accused against another is subject to the discretionary control of the trial judge. Where the tendency is to be established through expert opinion evidence – as in Lowery and King (1972) and R v McBride (1983), then Chapter 15: The Character and Credibility of the Accused, and s 111 of the uniform evidence legislation, should also be referred to.

12.7

Summary

12.7.1 Uniform evidence legislation jurisdictions Under the uniform evidence legislation: • the tendency and coincidence rules (ss 97 and 98 respectively) are of general application, applying in: ❍ civil proceedings ❍ in criminal proceedings, to evidence led by the defence; and ❍ in criminal proceedings, to evidence led by the prosecution (discussed in the next chapter);

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Tendency and Coincidence Evidence • tendency evidence is evidence of the ‘character, reputation or conduct of a person, or a tendency that a person has or had’ when used to prove that the person may have acted in conformity with that tendency on the occasion in question: s 97; • coincidence evidence is evidence of ‘two or more related events’ when led to prove ‘that, because of the improbability of the events occurring coincidentally, a person did a particular act or had a particular state of mind’: s 98; • tendency and coincidence evidence are inadmissible unless two conditions are satisfied: ❍ the evidence has ‘significant probative value’; and ❍ the party adducing the evidence has given reasonable notice of their intention to do so.

12.7.2 Common law jurisdictions At common law, on the other hand: • there are no exclusionary rules applying to tendency and coincidence evidence unless led by the prosecution in criminal proceedings, as to which see the following chapter; • this means that tendency and coincidence evidence is admissible, subject only to the requirement of relevance: ❍ in civil proceedings; and ❍ when it is led by the defence in criminal proceedings; • the requirement of relevance may, however, be very stringently applied so as effectively to require significant probative value; • moreover, where the defence in criminal proceedings leads tendency or coincidence evidence relating to a co-accused, the trial judge appears to have a discretion to exclude the evidence in the interests of fairness to the co-accused.

12.7.3 Tendency evidence relating to complainants in sexual offence trials In both common law and uniform evidence legislation jurisdictions there are specific statutory provisions applying in sexual offence trials to evidence about the complainant’s sexual tendencies: • these provisions usually forbid evidence of the complainant’s sexual reputation or general sexual disposition; • they also place qualified prohibitions on the use of evidence about the complainant’s sexual activities or experience (the prohibitions vary from jurisdiction to jurisdiction);

213

Principles of Evidence • the qualified prohibitions usually allow the use of such evidence either in specified circumstances or when it has substantial probative value.

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CHAPTER 13

TENDENCY AND COINCIDENCE EVIDENCE: THE ACCUSED

13.1

Introduction

13.1.1 Overview This chapter deals with the use of evidence which, broadly speaking, reveals or suggests the commission by the accused of offences other than that with which he or she is charged. This is part of a class of evidence referred to in this book as tendency and coincidence evidence. The use of tendency and coincidence evidence in civil proceedings, or when led by the defence in criminal proceedings, was discussed in the previous chapter. This chapter is solely concerned with the use of tendency and coincidence evidence when led by the prosecution in criminal proceedings. This chapter first describes the operation of the tendency and coincidence rules both at common law and under the uniform evidence legislation. The next part of the chapter describes in detail the scope of the exclusionary aspect of these rules. It then turns to the inclusionary aspect of these rules, setting out the tests to be applied in determining the admissibility of tendency and coincidence evidence, and illustrating how these tests should be applied. The following related areas are covered in Chapter 15: The Character and Credibility of the Accused: • the cross-examination of the accused about his or her prior criminal conduct; • the admissibility of evidence of the accused’s good character; and • the admissibility of evidence led to rebut a claim of good character.

13.1.2 Terminology At common law, the type of evidence dealt with in this chapter is usually referred to as ‘similar fact evidence’, and the rule which determines its admissibility as the ‘similar fact rule’. The common law terminology is rather misleading, unfortunately, because referring to ‘similar fact evidence’ and a corresponding ‘similar fact rule’ inevitably suggests that the only evidence which falls within the scope of the exclusionary rule is evidence of facts ‘similar’ to the crime charged. In fact, the ambit of the exclusionary rule is much wider. Moreover, referring to a similar fact rule obscures the true test for determining whether or not evidence in question does fall within the scope of the rule. That test does not depend on there being any similarity between the

215

Principles of Evidence evidence in question and the facts which form the subject of the proceedings, but on the manner in which that evidence is to be used. For this reason it has become increasingly common for judges discussing the exclusionary rule to refer to ‘propensity’ evidence: see, for example, Pfennig v R (1995). The same approach is taken in Victoria, where the common law rule has recently been replaced by a statutory provision which applies to ‘propensity evidence’.1 The advantage of this phrase is that it highlights the fact that the scope of the rule depends on the use to which the evidence is to be put. Its defect, however, is that it suggests that there is only one use which attracts the operation of the exclusionary rule: use as propensity evidence. In fact, as will be discussed below, there are two distinct uses which attract the operation of the rule: use as propensity – or ‘tendency’ – evidence, and use as ‘coincidence’ evidence. The uniform evidence legislation recognises this reality, by having one rule dealing with tendency evidence and another dealing with coincidence evidence. For this reason, this chapter generally uses the terminology of the uniform evidence legislation.

13.1.3 Rationale for the rules The similar fact, tendency and coincidence rules exist to uphold what Dixon J once described as: ... the thesis of English law that the ingredients of a crime are to be proved by direct or circumstantial evidence of the events, that is to say, the parts and details of the transaction amounting to the crime, and are not inferred from the character and tendencies of the accused.2

The thesis is not based on logic. Indeed, it flies in the face of both logic and ordinary experience, because the accused’s character can, and often will be relevant to their guilt. The law recognises this by allowing an accused person to lead evidence of their good character for the purpose of showing that they are not the sort of person to have committed the crime charged: see Chapter 15: The Character and Credibility of the Accused. Bad character is just as relevant to guilt as good character; one need go no further than recidivism statistics to prove this. The danger, however, is that the admission of evidence revealing the bad character and tendencies of the accused will so prejudice the accused as to deny him or her the chance of a fair trial. Hence the exclusionary rules. The different ways in which tendency and coincidence evidence can be prejudicial are discussed later in the chapter, under the heading ‘Assessing prejudicial effect’.

__________________________________________________________________________________________________________________________________________

1 2

Crimes Act 1958 (Vic), s 398A. Dawson v R (1961) 106 CLR 1, 16. 216

Tendency and Coincidence Evidence: The Accused

13.1.4 A rule with exclusionary and inclusionary aspects Although the law recognises that evidence revealing the bad character and tendencies of the accused should generally be excluded, it also recognises that in some cases such evidence is so highly probative of guilt that to exclude it would be ‘an affront to common sense’. For this reason, the similar fact, tendency and coincidence rules all have both exclusionary and inclusionary aspects. The rules are exclusionary in that evidence falling within the scope of the rules is prima facie inadmissible. They are inclusionary in that evidence falling within the scope of the exclusionary rules and which is therefore prima facie inadmissible, may nevertheless be admitted if it is of sufficient probative value. The rules are, thus, similar to the hearsay rule, in that they are exclusionary rules subject to exception. Unlike the hearsay rule, however, the inclusionary exception to each rule is not regarded as conceptually distinct from the exclusionary rule itself. They are simply regarded as two aspects of the one rule.

13.1.5 A warning about older judgments This is an area of law which has suffered from a great deal of confusion ever since the decision of the Privy Council in the landmark case of Makin v Attorney General (NSW) (1894). Several different ways of attempting to reconcile the seemingly contradictory principles announced by the Privy Council in that case have come and gone in the hundred or so years since the case was decided. For example, there are numerous judgments of high authority which insist that the type of evidence discussed in this chapter cannot be used as ‘propensity’ evidence. As Mason CJ, Deane and Dawson JJ noted in Pfennig v R (1995), this insistence ‘contributed to a misunderstanding of the Makin principles and to statements of principle which lacked a clear and coherent theoretical foundation’.3 For this reason, only the most recent judicial statements of principle should be regarded as reliable; indeed, older statements of principle may be downright misleading. In this chapter no attempt has been made to trace the changing views of the rule, as expressed in the cases or in academic writings. Instead, the law has been stated on the basis of the most recent High Court decisions, and the provisions of the uniform evidence legislation. Older cases are, nevertheless, referred to in this chapter because they provide useful examples of the kind of factual situations with which the rules discussed in this chapter are intended to deal. The way in which those cases are analysed in this chapter may, however, depart from with the way in which they were analysed by the courts which actually decided them.

__________________________________________________________________________________________________________________________________________

3

Pfennig v R (1995) 182 CLR 461, 481. 217

Principles of Evidence

13.2

The scope of the exclusionary rule

This part of the chapter is primarily concerned with the scope of the common law similar fact rule. The scope of the tendency and coincidence rules under the uniform evidence legislation was discussed in detail in the previous chapter. That said, the examples of similar fact evidence discussed in this section of the chapter would also fall within the scope of the tendency and coincidence rules; and the discussion below under the heading ‘The use to which the evidence is put’ is equally applicable to both the common law’s similar fact rule and the uniform evidence legislation’s tendency and coincidence rules. Although the new Victorian statutory provisions are, at the time of writing, too new to have been the subject of any judicial interpretation, their scope would appear to be the same as that of the common law rules. This is because the provisions, while referring to ‘propensity evidence’, leave this phrase undefined; in her Second Reading Speech, however, the Attorney General said that the new provisions dealt with ‘the admissibility of propensity evidence (which includes similar fact evidence)’.4 This suggests that the phrase is intended to have the same meaning as it has at common law, where – as was noted above under the heading ‘Terminology’ – it is now used to cover all tendency and coincidence evidence led by the prosecution against the accused. The following discussion of the scope of the common law rules is therefore assumed to be equally applicable to the scope of s 398A of the Crimes Act 1958 (Vic). For evidence to fall within the scope of the exclusionary aspect of the common law similar fact rule two conditions must be satisfied. The first condition relates to the contents of the evidence. The second condition concerns the use to which the evidence is put. This two-pronged nature of the test for whether evidence falls within the scope of the rule is evident in Lord Herschell LC’s statement of the exclusionary aspect of the rule in Makin (1894): It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried.5

On this version of the rule, for example, the contents-based condition is that the evidence must tend to show ‘that the accused has been guilty of criminal acts other than those covered by the indictment’; and the use-based condition is that the evidence must be being used ‘for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or __________________________________________________________________________________________________________________________________________

4 5

Victoria, Parliamentary Debates, Legislative Assembly, 9 October 1997, 431 Makin v Attorney General (NSW) [1894] AC 57, 65. 218

Tendency and Coincidence Evidence: The Accused character to have committed the offence for which he is being tried’. While Lord Herschell LC’s statement of the rule can no longer be accepted as completely accurate, it is still true that evidence falling within the scope of the exclusionary rule must satisfy a contents-based and a use-based condition.

13.2.1 The contents of the evidence The first condition which must be satisfied before evidence will be held to fall within the scope of the exclusionary rule relates to the contents of the evidence; in other words, what the evidence reveals or suggests about the accused. At common law, the contents-based condition is significantly narrower than under the uniform evidence legislation, and consequently plays a far more important role in determining whether or not evidence falls within the scope of the exclusionary rule. Broadly speaking, evidence satisfies the contents-based condition if it reveals something discreditable about the accused. The most obvious example of something discreditable is evidence revealing or suggesting that the accused has committed crimes other than those with which he or she is charged. Beyond that, there is some uncertainty.6 On the one hand, there is ample authority suggesting that the rule extends no further than evidence revealing other criminal conduct, including the reference by Lord Herschell LC in the passage quoted above to ‘evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment’; and the reference by Mason CJ, Deane and Dawson JJ in Pfennig v R (1995) to evidence ‘which discloses the commission of offences other than those with which the accused is charged’.7 On the other hand, there are several leading cases where evidence of non-criminal conduct was treated as if it fell within the scope of the exclusionary rule because it provided a basis for an inference that the accused possessed a propensity to commit a particular type of crime. For example: • In R v Ball (1911) the two accused, brother and sister, were charged with incest. Evidence was led establishing that the two had lived together as man and wife previously and had had a child together, at a time when incest was not illegal. From this it could be inferred that their sexual passion had continued and continued to be acted on after the passage of the Punishment of Incest Act 1908. Past non-criminal conduct established the existence of a propensity which the passage of the legislation made criminal. • In Thompson v R (1918) the accused was charged with indecently assaulting two boys. The evidence from which the accused’s propensity to commit such crimes was inferred was his possession of powder puffs and photographs of naked boys. Criminal propensity was again inferred from __________________________________________________________________________________________________________________________________________

6 7

See Palmer, A, ‘The Scope of the Similar Fact Rule’ (1994) Adel LR 161, 178–80. Pfennig v R (1995) 182 CLR 461, 464. 219

Principles of Evidence non-criminal conduct without the intermediate inference that any other crimes had been committed. This suggests that the contents-based condition will be satisfied whenever the evidence reveals or suggests that the accused possesses a propensity to commit crime. Criminal propensity will invariably be suggested by evidence revealing or suggesting that the accused has committed crimes other than those which form the subject of the charge, and it makes no difference whether the accused has been convicted of those other crimes, or whether he or she is merely suspected of having done so. As Ball and Thompson demonstrate, however, criminal propensity can also be inferred from something other than the commission of criminal offences. McHugh J was therefore right in Pfennig to suggest that the contents-based condition will be satisfied by any evidence which ‘discloses, directly or indirectly, the criminal propensities of the accused’.8

13.2.2 The use to which the evidence is put The second condition which must be satisfied, before evidence will be held to fall within the scope of the exclusionary rule, relates to the use to which the evidence is to be put. To put it another way, this second condition concerns the nature of the reasoning which leads from the evidence to the inference of guilt. The uniform evidence legislation proscribes two modes of reasoning: tendency reasoning and coincidence reasoning. At common law the picture is less clear. In Pfennig v R (1995), for example, Mason CJ, Deane and Dawson JJ claimed that evidence falling within the scope of the exclusionary rule was ‘always propensity evidence’.9 Propensity reasoning involves what the uniform evidence legislation refers to as tendency reasoning. McHugh J was the only member of the court in Pfennig, however, to recognise that many of the leading similar fact cases actually involve the kind of reasoning referred to as coincidence reasoning under the uniform evidence legislation. What this means is that where the uniform evidence legislation has two rules, each applying to one mode of reasoning, the common law has one rule which covers both. Because the scope of the exclusionary rule depends on the way in which the evidence is being used, it is always necessary to identify precisely what it is that makes the evidence relevant. This includes identifying the fact or facts in issue in proof of which the evidence is being adduced. As will be seen from the cases discussed below, tendency and coincidence evidence can be offered in proof of a variety of facts in issue. It can be used, for example, to prove that a crime occurred, that an equivocal act was done with a criminal state of mind, __________________________________________________________________________________________________________________________________________

8 9

Pfennig v R (1995) 182 CLR 461, 530. Ibid, 464. 220

Tendency and Coincidence Evidence: The Accused or to prove the identity of an offender. Whether the evidence falls within the scope of the exclusionary rule is not determined, however, by the facts in proof of which the evidence is led; instead, it is determined by the way in which those facts are proved. Being able to identify precisely how the evidence is being used is also of great advantage when it comes to the inclusionary exception. In crude terms, the inclusionary exception allows for the admission of evidence of high probative value, but it is impossible to say how much probative value a particular piece of evidence has unless one has first identified how that evidence is to be used. It is important to note, however, that in determining whether the evidence falls within the scope of the exclusionary rule we are solely concerned with the form which the argument for the relevance of the evidence takes; it is only when we try to assess the probative value of the evidence – for the purposes of determining whether it meets the requirements of the inclusionary exception to the rule – that the strength of the argument needs to be considered. 13.2.2.1 Tendency or propensity reasoning At both common law and under the uniform evidence legislation, the exclusionary rule applies to evidence involving what can be referred to as either tendency or propensity reasoning. The starting point of such a reasoning process is evidence which satisfies the contents-based condition set out above. From this starting point there are generally two steps: • the first step is to infer that the accused has a tendency or propensity to act in a particular way; and • the second step is to infer that the accused acted in accordance with that tendency or propensity on the occasion which forms the subject of the charge. Although tendency or propensity reasoning always involves these two steps, it can be used in a variety of ways. If identity is in issue, then the fact that the accused has a propensity to commit crimes of the type charged clearly places him or her in the class of persons who might have committed the crime. The probative value of the evidence when used to prove identity will usually (but not always, as Pfennig v R (1995) demonstrates) depend on how small this class of persons is, a question which will in turn depend on the relative unusualness of the propensity in question. If, for example, the crime is an armed robbery and the evidence merely shows that the accused is an armed robber, then the evidence is unlikely to be of very much probative value. Tendency or propensity evidence can also be used to prove that a crime occurred. If, for example, a person’s injuries were allegedly caused by their spouse, and the accused spouse claims that they were instead received as the result of an accident, the fact that the accused spouse had assaulted the injured spouse on other occasions clearly increases the probability of there having 221

Principles of Evidence been an assault on the occasion in question: see R v McKnoulty (1995). Similarly, if the accused is charged with indecently assaulting a minor, but claims that the touching was innocent in nature, the fact that the accused has indecently assaulted other children, clearly increases the probability that the act of touching in question was also indecent. Although everything said thus far is equally applicable to both the tendency rule contained in s 97 of the uniform evidence legislation, and the similar fact rule at common law, there is one significant difference between the two rules. This difference is largely due to the fact that the tendency rule is a rule of general application whereas the similar fact rule is a rule applying only to evidence led by the prosecution in criminal proceedings. Because of this, the similar fact rule only applies when the propensity in question is a propensity to commit crime. In Pfennig v R (1995), for example, Mason CJ, Deane and Dawson JJ commented that the similar fact rule applies to evidence led: ... for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried.10

The tendency rule, on the other hand, applies to any tendency to act in a particular way. Section 97(1) thus refers to evidence led for the purpose of proving ‘that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind’. The tendency in question need not, therefore, be a tendency to commit crime or a particular type of crime, although where the tendency is that of the accused it almost invariably will be. R v Ball (1911) and Thompson v R (1918), discussed above under the heading ‘The contents of the evidence’, are both examples of tendency or propensity reasoning. Here are some further examples: • In Pfennig v R (1995) the accused was charged with the murder of a 10 year old boy. The boy’s body was never found, but the prosecution case was that he had been abducted by the accused for sexual purposes and then murdered. Prior to his trial for murder, the accused had been convicted of offences arising from his abduction and rape of a 13 year old boy. This evidence showed that the accused had a propensity to commit the crime charged; and the fact of the accused having such a propensity was circumstantial evidence from which his guilt could be inferred. The evidence was therefore being used as propensity evidence and so fell within the scope of the exclusionary rule. The fact that the abduction and rape of the 13 year old boy actually occurred some 12 months after the disappearance of the 10 year old boy merely demonstrates that it is sometimes possible to infer from the fact that a person had a propensity to act in a particular way at one point in time that they may also have had that propensity at an earlier point in time. __________________________________________________________________________________________________________________________________________

10 Pfennig v R (1995) 182 CLR 461, 475 (Mason CJ, Deane and Dawson JJ). 222

Tendency and Coincidence Evidence: The Accused • In O’Leary v R (1946) the accused was charged with the murder of a fellow employee who had been found dead at the end of a ‘drunken orgy’ at a remote timber camp. Evidence that the accused had violently assaulted several other fellow employees during the course of the drunken orgy established a propensity for violence which made it more likely that the accused had also committed the murder. As Williams J commented, the fact that the accused alone of the employees at the camp had been committing acts of violence rendered it ‘logically probable that he was the man who assaulted’ the deceased.11 The fact that the accused’s propensity for violence may have been limited to the period leading up to the murder does not alter the fact that the evidence of the other assaults was being used as propensity evidence; indeed, it was the close temporal connection between the assaults undoubtedly committed by the accused, and the murder, which gave the evidence its probative value. • In Harriman v R (1989) the accused was charged with being knowingly concerned in the importation of heroin from Thailand. The prosecution case was that the accused had acted jointly with one Martin in importing the heroin; the defence case was that Martin had acted alone. The accused had admittedly accompanied Martin to the town in Thailand where the heroin had been bought; but the accused denied any involvement in the purchase. The evidence in question established that the accused and Martin had been jointly involved in dealings with heroin on several previous occasions. The evidence thus suggested a propensity on the part of the accused to act in concert with Martin where heroin was concerned, and it was this propensity which made the possibility of innocent association on the occasion in question unlikely. As Dawson J later commented, although the relevance of such evidence is often ‘said to lie in establishing the relationship between the two persons involved in the commission of the offence ... it is in truth no more than evidence of a propensity on the part of the accused of a sufficiently high degree of relevance as to justify its admission’.12 • Finally, in Hoch v R (1988) – as in the leading English case of DPP v Boardman (1975) – the dispute was whether the events in question had occurred at all. In Hoch the accused was charged with three counts of unlawfully and indecently dealing with a boy under the age of 14 years, each count involving a different boy. There were certain similarities between the assaults described by each of the boys. These similarities could be explained in one of three ways: either the boys were all telling the truth, and the similarities were thus due to the fact that they were all describing assaults by a person with particular sexual propensities; or, through an unlikely coincidence, the boys had all independently come up __________________________________________________________________________________________________________________________________________

11 O’Leary v R (1946) 73 CLR 566, 582. 12 S v R (1989) 168 CLR 266, 275. 223

Principles of Evidence with similar lies; or the boys had put their heads together and jointly concocted their lies. If the third of these explanations could be eliminated – as it could, for example, if none of the boys had known each other – then either the boys were all telling the truth, or an unlikely coincidence had occurred. In such a case, the more similarities there are between the events described by each of the victims, then the less likely it is that those similarities are due to coincidence. Although the probative value of the evidence in a case like Hoch lies in the improbability of such a coincidence, the evidence is nevertheless being used as propensity or tendency evidence. This is because the reason why the evidence of one crime is relevant to prove the commission of the others (and vice versa), is because it shows the accused to have a propensity to commit such crimes. 13.2.2.2 Coincidence reasoning With coincidence reasoning there are always two or more events which appear to be related in some way; the relationship between the events is often their apparent similarity. Coincidence reasoning thus encompasses what are sometimes called the ‘true similar fact’ cases. In Pfennig v R (1995), McHugh J described the reasoning process involved in these cases – which he termed ‘objective improbability reasoning’ – as one where the jury are invited to infer that ‘the association of the accused with so many similar deaths, injuries or losses, as the case may be, makes it highly improbable that there is any innocent explanation for the accused’s involvement in the matter’.13 Similarly, s 98(1) of the uniform evidence legislation defines coincidence evidence as ‘evidence that two or more related events occurred’ when led ‘to prove that, because of the improbability of the events occurring coincidentally, a person did a particular act or had a particular state of mind’. As coincidence reasoning can be employed in a variety of different contexts and for a variety of different purposes, the reasoning process is perhaps best illustrated through example: • The classic example is Makin v Attorney General (NSW) (1894). In that case the two accused, husband and wife, were charged with the murder of a baby whom they had adopted. The child’s body had been found buried in the backyard of a house which the Makins had occupied. The prosecution case was that the accused were engaged in the practice of ‘baby-farming’, whereby they agreed to adopt unwanted babies in return for the payment by their mothers of a small amount of money. The prosecution wished to lead evidence of the fact that the bodies of 11 other babies had been found at premises which had been occupied by the Makins; as well as evidence from four women who claimed that their unwanted babies had also been adopted for a premium by the Makins, and who would have testified that they had never seen their babies again. There were essentially two possible __________________________________________________________________________________________________________________________________________

13 Pfennig v R (1995) 182 CLR 461, 530. 224

Tendency and Coincidence Evidence: The Accused explanations for these facts: either the babies died of natural causes, or the Makins murdered them. Given the number of dead babies, it would have been too much of a coincidence for them to have all died of natural causes; therefore the accused probably murdered them all, including the baby which was the subject of the charge (for the sake of simplicity, I am deliberately disregarding the possibility that some of the babies might have died of natural causes and some have been murdered). • In R v Smith (1915) (the ‘brides in the bath’ case), the accused was charged with the murder of a woman – Bessie Munday – with whom he had gone through a form of marriage. Bessie had drowned in the bath. The accused and the deceased had made mutually beneficial wills. The accused had then consulted a solicitor and been advised that he would only secure Bessie’s money on her death. Four days later he purchased a bath. A couple of days after this, the accused took Bessie to see a doctor, describing her symptoms in such a way as to induce the doctor to believe she had suffered an epileptic fit. A couple of days after that she drowned in the bath. The prosecution led evidence relating to the deaths of two other women with whom the accused had gone through some sort of marriage ceremony, both of whom had also drowned in their baths, and both of whose deaths had financially benefited the accused. As the judge commented to the jury, ‘If you find an accident which benefits a person and you find that the person has been sufficiently fortunate to have that accident happen to him a number of times, benefiting him each time, you draw a very strong, frequently an irresistible inference, that the occurrence of so many accidents benefiting him is such a coincidence that it cannot have happened unless it was design’.14 • Similarly, in Perry v R (1982), the accused was charged with attempting to murder her third husband by means of arsenic poisoning. The accused (and her husband) claimed that he must have ingested the arsenic accidentally. To rebut this innocent explanation, the prosecution offered as coincidence evidence three ‘related events’: the death of the accused’s second husband from arsenic poisoning; the death of the accused’s brother from arsenic poisoning; and the fact that another de facto husband had displayed symptoms consistent with, but not specific for, arsenic poisoning prior to his death from an apparently suicidal barbiturate overdose. Again, the prosecution argument was that it was too much of a coincidence for four people associated with the accused to have accidentally ingested arsenic; the only other explanation would appear to have been that the poisonings had been deliberately carried out by the accused. As McHugh J pointed out in Pfennig, one of the things that often distinguishes coincidence cases from propensity or tendency cases is that in coincidence __________________________________________________________________________________________________________________________________________

14 R v Smith (1915) 11 Cr App R 229, 233. 225

Principles of Evidence cases ‘the propensity of the accused will usually only be established by the verdict’.15 In Perry, for example, it is only if the jury decides that it is too much of a coincidence for the poisonings to have been anything other than deliberate, that the accused’s propensity as an arsenic poisoner is established. But establishing this propensity is simply then a by-product of the verdict itself: it is not an intermediate step to the reaching of that verdict. It would have been quite different if the accused’s propensity as a poisoner had already been established by, for example, convictions for the murder of her second husband and brother. In such a case, the evidence of the earlier poisonings would no doubt have been offered as propensity or tendency evidence rather than as coincidence evidence. Although coincidence reasoning will usually only be applied to unproven crimes, this is not invariably the case: • In Thompson v R (1989), for example, the accused had been convicted of murdering a family of four. The police then re-examined an earlier incident involving the accused and the death of two sisters of one of the members of the murdered family. The accused claimed that the sisters had died in a car accident; the prosecution case was that the accused had staged the accident to conceal the fact that he had murdered the sisters. There were several points of similarity between the circumstances of the murders and the circumstances of the earlier deaths of the two sisters. Given these similarities, the improbable coincidence was that the accused might have murdered four members of a family and been involved in the accidental death of two more. • In Sutton v R (1984) as well, the accused’s propensity as a rapist was established prior to the verdict, although the fact of the accused having such a propensity was not essential to the inference of guilt. In Sutton the accused was charged with one count of attempted rape and seven counts of rape. The charges related to three different girls, ranging in ages from 13 to 18. The defence was one of identity: that is, the accused did not dispute that the girls had been raped, but denied that it was he who had raped them. One of the girls had identified the accused as her assailant to the police on the night on which the offences were committed and identified him again in court; another of the girls was unable to give any identification evidence at all; and the third had identified the accused as her assailant, but there were certain circumstances which raised doubts about the reliability of her identification. There were, however, numerous points of similarity between the three sets of offences, and the prosecution wished to use these similarities to overcome the weaknesses in the identification evidence by inviting the jury to infer that one man must have committed all the rapes. The court accepted this argument, with Dawson J commenting that the similarities between the offences were ‘sufficient to eliminate coincidence and to require as the only reasonable __________________________________________________________________________________________________________________________________________

15 Pfennig v R (1995) 182 CLR 461, 530. 226

Tendency and Coincidence Evidence: The Accused finding the conclusion that the same man committed the offence or offences against each of the three complainants’.16 Once this conclusion is reached, then evidence that the accused committed one of the sets of offences can be used to prove that he committed all of them. Coincidence reasoning can thus be employed for a variety of purposes, including to prove that events the occurrence of which is undisputed were crimes (as in Makin, Perry and Thompson); and to prove that a series of crimes were committed by the same person (as in Sutton). This is not exhaustive, and a different selection of cases would have revealed some other ways in which coincidence reasoning can be used. 13.2.2.3 Tendency or coincidence? In many cases, it will be possible to analyse the evidence as either tendency or coincidence evidence. In Thompson v R (1989), for example, the court could instead have analysed the evidence in terms of tendency or propensity, arguing that the murder of the family of four demonstrated that the accused had a tendency or propensity to murder members of this particular family, which made it more likely that he had also murdered the two sisters. As the coincidence reasoning was more compelling, however, it made sense for the court to analyse the evidence as coincidence evidence. Similarly, in Sutton v R (1984), the argument for admissibility could have been put in propensity terms. The argument would then have been that the evidence of the rape where the identification evidence was strongest established that the accused had a tendency or propensity to carry out this sort of crime. The fact that the accused had this propensity would then make it more likely that he also committed the rapes in respect of which the identification evidence was weaker. Again, however, the coincidence argument was probably stronger, which no doubt explains why the prosecution put the argument in those terms. This highlights the fact that it is ultimately for the party attempting to adduce the evidence to frame the argument for its admissibility. It is obviously in the interests of the party offering the evidence to select the argument which shows the evidence to have the greatest probative value. Whether framed in terms of tendency or coincidence, the admissibility of the evidence should be assessed by the court in the terms on which it is offered. 13.2.2.4 Evidence relevant for another purpose If evidence revealing or suggesting criminal misconduct on the part of the accused is relevant for a purpose which does not depend on tendency or coincidence reasoning, then it is not subject to the exclusionary rules. In R v Evans and Gardiner (No 2) (1976), for example, the two accused were prison __________________________________________________________________________________________________________________________________________

16 Sutton v R (1984) 152 CLR 528, 569. 227

Principles of Evidence inmates charged with the murder of a fellow inmate. Although the evidence that the crime occurred in prison inevitably revealed that the accused must have committed other crimes – and therefore suggested that they had a propensity to commit crime – the evidence was not offered for the purpose of inviting the jury to infer that because the accused had acted in a particular way on occasions other than those which were the subject of the charge, therefore they must have acted in the same way on the occasion which was the subject of the charge. Similarly, to take an example from McHugh J’s judgment in Pfennig v R (1995), in a trial for murder the exclusionary rules would not apply to ‘evidence that the proceeds of a robbery carried out by the accused were found at the scene of [the] murder’.17 In such a case, the relevance of the evidence would simply lie in the fact that an object or objects connected with the accused had been found at the scene of the crime. The fact that the object was the proceeds of a robbery committed by the accused – rather than, for example, an item of clothing belonging to the accused – is immaterial. The relevance of the evidence does not depend on any inference as to the accused’s criminal propensity. Evidence of other crimes could also be admitted as part of the res gestae, that is, as part of the events surrounding the crime charged. A rape, for example, might well be preceded by an assault, either violent or indecent. No one would think to prohibit the complainant from describing such an assault, however: it is simply part of the context in which the rape occurred. In such a case the jury are not being invited to infer that because the accused committed the assault he must also have committed the rape. The assault is simply part of ‘the same transaction as that under inquiry’, and is admissible for that reason.18 One must be careful, however, not to overemploy the concept of the res gestae; in this author’s view, for example, O’Leary v R (1946) was clearly a case where the evidence of the other crimes was being used as propensity evidence, despite Dixon J’s suggestions to the contrary. When evidence is relevant for a purpose which does not depend on tendency or coincidence reasoning then it is admissible for that purpose, subject only to the judge’s discretion to exclude the evidence as unduly prejudicial. However, evidence admissible for a non-tendency or coincidence purpose cannot, once admitted, then be used for the tendency or coincidence purpose.19 In applying the discretion, the court will, no doubt, take into account the possibility that the jury will use the evidence as tendency or coincidence evidence, even though it is not admissible on that basis. __________________________________________________________________________________________________________________________________________

17 Pfennig v R (1995) 182 CLR 461, 516. McHugh J in fact suggested that this example did fall within the scope of the exclusionary rule, but his views on this point were inconsistent with those of the majority: see Palmer, A, ‘Pfennig v R: Two Versions of the Similar Fact Rule’ (1995) 20 MULR 600. 18 Harriman v R (1989) 167 CLR 590, 628 (McHugh J). 19 Uniform evidence legislation, s 95; B v R (1992) 175 CLR 599, 607–08 (Brennan J). 228

Tendency and Coincidence Evidence: The Accused

13.2.3 Multiple counts Often an indictment will contain multiple counts. Sometimes, the evidence in relation to one count will be admissible in relation to another. This was what happened in Sutton v R (1984) above: evidence that the accused had committed one of the sets of offences could be used to prove that he had committed the others. For this to happen, the evidence must satisfy the requirements of the inclusionary exception discussed below. In other cases, however, evidence relating to one count will not be admissible to prove guilt in relation to the others. Even if the judge directs the jury that the evidence relating to that count cannot be used when considering the other counts, there may still be a risk that the jury will simply disregard this direction. Indeed, the mere fact that the accused is charged with committing several crimes may itself satisfy the jury about any doubts they might otherwise have felt. For this reason, the High Court has said that where the accused is charged with several counts, and the evidence on each count is inadmissible on the other counts, and there is a risk of prejudice, then there should be separate trials for each count: see De Jesus v R (1986). In Victoria, however, where two or more counts charging sexual offences are joined in the same presentment, there is now a statutory presumption that those offences should be tried together. The legislation also provides that the presumption ‘is not rebutted merely because evidence on one count is inadmissible on another count’: see Crimes Act 1958 (Vic), ss 372(3AA)– 372(3AC).

13.3

The inclusionary exception

So far we have seen that evidence will fall within the scope of the exclusionary rules and be ruled prima facie inadmissible if it satisfies two conditions, one contents-based, the other use-based. The evidence may nevertheless be admitted, however, if it satisfies the requirements of the inclusionary exceptions to the exclusionary rules. In broad terms, the inclusionary exceptions require that the evidence bear a high probative value. There are, however, differences between the test to be applied at common law and that to be applied under the uniform evidence legislation.

13.3.1 The test for admissibility 13.3.1.1 Common law In Pfennig v R (1995), a majority of the High Court confirmed that in order for evidence falling within the scope of the exclusionary rule to be admissible it must possess a particularly high degree of probative force, such that the probative force of the evidence clearly transcends its prejudicial effect. The majority added, however, that such a conclusion can only be safely reached if

229

Principles of Evidence ‘the objective improbability of [the evidence] having some innocent explanation is such that there is no reasonable view of it other than as supporting an inference that the accused is guilty of the offence charged’.20 In other words, the evidence must ‘if accepted ... bear no reasonable explanation other than the inculpation of the accused in the offence charged’.21 This ‘no reasonable explanation other than guilt’ test is a test for probative value. It is, moreover, an extremely demanding one. In fact, it is the same test which a jury must apply in a case based on circumstantial evidence when deciding whether or not guilt has been proven beyond reasonable doubt: see Chapter 19: The Burden and Standard of Proof. In applying this test one need not consider the amount of prejudice likely to be caused by the evidence, nor is there any need to ask whether the probative value of the evidence ‘outweighs’ its prejudicial effect, despite statements to that effect in some of the earlier judgments. Instead, the only question for the judge is whether there is a reasonable view of the evidence which is consistent with the innocence of the accused; and rather than being something which the judge must consider and weigh in applying the rule, the possibility of prejudice is simply the rule’s rationale. The words ‘if accepted’ are, however, important because they point to an important distinction between cases where the propensity or coincidence evidence is not in dispute, and those where it is. If the evidence is admitted by the accused or has been proven beyond reasonable doubt in earlier proceedings then an assessment of its probative value will only require a consideration of the strength of the inference from the evidence to guilt. If the propensity or coincidence evidence is disputed, on the other hand, then the consideration of probative value will also require a consideration of the extent to which the evidence has itself been proven. If the occurrence of the propensity or coincidence evidence is in significant doubt then the fact that the evidence might – ‘if accepted’ – bear no reasonable explanation consistent with innocence can hardly justify a conclusion that the probative value of the evidence clearly transcends its prejudicial effect. 13.3.1.2 Victoria In Victoria, the exclusionary aspect of the rule is the same as at common law; but the exclusionary aspect of the common law rule has been replaced by a test which is clearly designed to lower the threshold for the admissibility of propensity evidence. Section 398A of the Crimes Act 1958 (Vic) thus provides that: (1) This section applies to proceedings for an indictable or summary offence. (2) Propensity evidence relevant to facts in issue in a proceeding for an offence is admissible if the court considers that in all the circumstances it is just to __________________________________________________________________________________________________________________________________________

20 Pfennig v R (1995) 182 CLR 461, 481–82 (Mason CJ, Deane and Dawson JJ). 21 Ibid, 481 (Mason CJ, Deane and Dawson JJ). 230

Tendency and Coincidence Evidence: The Accused admit it despite any prejudicial effect it may have on the person charged with the offence. (3) The possibility of a reasonable explanation consistent with the innocence of the person charged with an offence is not relevant to the admissibility of evidence referred to in sub-section (2). (4) Nothing in this section prevents a court taking into account the possibility of a reasonable explanation consistent with the innocence of the person charged with an offence when considering the weight of the evidence or the credibility of a witness. (5) This section has effect despite any rule of law to the contrary.

These provisions have not, at the time of writing, been the subject of any judicial interpretation, but everything will obviously hinge on what the trial court considers to be ‘in all the circumstances ... just’. The only guidance the legislation gives as to the meaning of this phrase is negative: the court is not to exclude propensity evidence merely because there is a reasonable explanation for it which is consistent with innocence: s 398(3). This obviously prevents the continued application of the current common law ‘no reasonable explanation consistent with innocence’ test. It is quite possible, however, that in determining what is ‘just’, courts may apply a balancing test of the kind required under the uniform evidence legislation; that is, a court might only be prepared to hold that it is ‘in all the circumstances ... just to admit’ the propensity evidence if it is satisfied that the probative value of the evidence outweighs, or substantially outweighs, its prejudicial effect. Such a test would at least allow the courts to have recourse to familiar conceptual and analytical tools. Moreover, the availability of such a test does not appear to be foreclosed by the addition in sub-section (2) of the words ‘despite any prejudicial effect it may have on the person charged with the offence’. The addition of these words clearly does not prevent the court from taking prejudicial effect into account in determining what is just; it merely allows a court to admit propensity evidence even if satisfied that its admission may be prejudicial. This is entirely consistent with a balancing test of the kind suggested. 13.3.1.3 Uniform evidence legislation There are two aspects of the test for admissibility under the uniform evidence legislation. The first is the requirement of notice which applies to all tendency and coincidence evidence and which was discussed in the previous chapter. The second aspect of the test for admissibility is a test for probative value. In general, the legislation requires that tendency and coincidence evidence must ‘have significant probative value’: ss 97(1)(b) and 98(1)(b). If the tendency or coincidence evidence is evidence about an accused person in criminal proceedings, and the evidence is being adduced by the prosecution, however, then a higher standard is required. In such cases, the evidence is inadmissible ‘unless the probative value of the evidence substantially outweighs any 231

Principles of Evidence prejudicial effect it may have’ on the accused: s 101(2). The higher standard of admissibility does not apply, however, if the tendency or coincidence evidence in question is adduced to explain or contradict tendency or coincidence evidence adduced by the accused: s 101(3) and (4). A significant difference between the test to be applied under the uniform evidence legislation and that to be applied at common law, is that the uniform evidence legislation test does indeed require the court to consider the amount of prejudice which the admission of the evidence is likely to cause. The court will then need to assess the probative value of the evidence. Only if the probative value of the evidence ‘substantially outweighs’ its likely prejudicial effect will the evidence be admitted. The weighing test clearly means that the amount of probative value necessary for admission will vary according to the amount of prejudice which the evidence is likely to cause. Highly prejudicial evidence will obviously need to be more highly probative than evidence which is only mildly prejudicial. Although the uniform evidence legislation requires, on its face, that the probative value of the evidence ‘substantially outweighs’ its prejudicial effect, McHugh J was surely right in Pfennig v R (1995) to point out that the process actually requires the court ‘to make a value judgment, not a mathematical calculation’.22 McHugh J’s comment was, of course, made in relation to a common law test for admissibility which his judgment was the only one to support; but it is equally applicable to the test to be applied under the uniform evidence legislation. McHugh J pointed out that, taken literally, a weighing test is impossible for the simple reason that: ... prejudicial effect and probative value are incommensurables. They have no standard of comparison. The probative value of the evidence goes to proof of an issue, the prejudicial effect to the fairness of the trial. In criminal trials, the prejudicial effect of evidence is not concerned with the cogency of its proof but with the risk that the jury will use the evidence or be affected by it in a way that the law does not permit. In no sense does the probative value of evidence disclosing propensity, when admitted, outweigh its prejudicial effect. On the contrary, in many cases the probative value either creates or reinforces the prejudicial effect of the evidence. In my view, evidence that discloses the criminal or discreditable propensity of the accused is admitted not because its probative value outweighs its prejudicial effect but because the interests of justice require its admission despite the risk, or in some cases the inevitability, that the fair trial of the charge will be prejudiced.23

13.3.2 Assessing prejudicial effect As noted above, it is only necessary to actually assess the prejudicial effect of tendency or coincidence evidence when determining its admissibility under the uniform evidence legislation. At common law, the risk of prejudice is the __________________________________________________________________________________________________________________________________________

22 Pfennig v R (1995) 182 CLR 461, 529. 23 Ibid, 528. 232

Tendency and Coincidence Evidence: The Accused rule’s rationale, rather than something to be assessed when applying it, and this part of the chapter should be read in light of this. The risk of prejudice can arise in a variety of different ways, not all of which will necessarily arise in a given case. As McHugh J commented in Pfennig, ‘the nature of the prejudice and the degree of risk of an unfair trial will always depend on the facts of each case’.24 13.3.2.1 The probative value of the evidence may be overestimated With both tendency and coincidence evidence there is a risk that ‘the jury might attach too much importance’ to the evidence.25 That is, they may commit a kind of logical error by which they overestimate the strength of the inference which can be drawn from such evidence. With tendency evidence, the error is to overestimate the constancy of human nature, to assume that because a person has behaved in a particular way on one or more occasions in the past he or she must have done so on the occasion which is the subject of the charge. With coincidence evidence, the risk arises from the fact that ‘common assumptions about improbability of sequences are often wrong’.26 Lightning does sometimes strike twice. Moreover, on closer examination, the differences between the events may seem as significant as the similarities. It was for this reason that a majority of the High Court in Perry (1982) ruled the evidence relating to the deaths of the brother and the de facto spouse inadmissible, leaving only the evidence relating to the death of the second husband. 13.3.2.2 Coincidence evidence may be impermissibly used as tendency evidence In coincidence cases such as Thompson v R (1989) or Sutton v R (1984) where the ‘related events’ include events which the accused has either admitted were crimes, or which have been proven in other proceedings to be crimes, or which the evidence very strongly suggests were crimes, there is a risk that the jury may actually use the evidence as tendency or propensity evidence, rather than as coincidence evidence.27 13.3.2.3 The tendency or coincidence evidence may divert the trial into collateral issues If the accused denies that the tendency or coincidence evidence either occurred or was criminal in nature, then there is a risk that the jury might become so distracted by the question of whether or not the tendency or coincidence evidence occurred, or was criminal in nature, that they simply, and without really realising what they are doing, transfer their ‘verdict’ on the tendency or coincidence evidence to the facts charged.28 Having to contest the __________________________________________________________________________________________________________________________________________

24 25 26 27 28

Pfennig v R (1995) 182 CLR 461, 531. Perry v R (1982) 150 CLR 580, 585 (Gibbs CJ). Ibid, 594 (Murphy J). Ibid, Pfennig v R, 531 (McHugh J). Ibid, Perry v R, 587 (Gibbs CJ). 233

Principles of Evidence allegations implicit in the tendency or coincidence evidence also imposes a heavy burden on the accused; as Murphy J observed in Perry v R (1982), ‘Usually an accused has to answer ... in relation to one alleged event, but here the accused was “put to answer” for a good part of her life’.29 13.3.2.4 The accused may be denied the benefit of any reasonable doubt As Murphy J said in Perry v R (1982), the admission of tendency or coincidence evidence ‘immediately conjures up a highly suspicious prejudicial atmosphere in which the presumption of innocence tends to be replaced with a presumption of guilt’.30 In particular, when the evidence indicates that the accused has committed other crimes, it may engender such antipathy towards the accused that the jury is unwilling to give him or her the benefit of any reasonable doubt. If the accused has not been convicted in relation to the tendency or coincidence evidence, but the jury is satisfied that it occurred, then the accused may be denied the benefit of any reasonable doubt because the jury feels that whether or not the accused committed the acts charged, he or she has in any case committed other acts worthy of punishment. If the accused has been convicted in relation to the tendency or coincidence evidence, then the accused may be denied the benefit of any reasonable doubt because the harm of a wrongful conviction may seem less to a jury if the person convicted already has a criminal record.31

13.3.3 Assessing probative value Despite their differences, the core of the tests for admissibility at both common law and under the uniform evidence legislation is the question of probative value. ‘Probative value’ is defined in the Dictionary section of the legislation as ‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue’. The key to this definition – which is equally appropriate for the common law – is the word ‘rationally’. Probative value is about the weight which the tribunal of fact, if acting rationally, could give to the evidence. The cases discussed above in the context of the exclusionary rule should already have provided some examples of the kinds of things which the courts look for in assessing probative value. This part approaches the question on a more systematic basis. 13.3.3.1 Probative value in general Assessing the probative value of tendency or coincidence evidence requires close and detailed analysis of the evidence and of the way it relates to the particular issues in the particular case. There is no ‘test’ which can be mechanically applied in order to arrive at a definite answer. The probative __________________________________________________________________________________________________________________________________________

29 Perry v R (1982) 150 CLR 580, 595. 30 Ibid, 593–94. 31 See Evidence, ALRC 26, 1985, Vol 1 [799]. 234

Tendency and Coincidence Evidence: The Accused value of propensity evidence is always a matter of degree and of judgment. Every case is different. The following questions, however, should always be asked: • How well established is the tendency or coincidence evidence? Has it been proven beyond reasonable doubt in another trial; does the accused admit to it; or is it merely a set of unproven allegations? In other words, how credible is the tendency and coincidence evidence? • How strong is the inference from that evidence to guilt? The tendency or coincidence evidence may itself be beyond doubt; but how relevant is that evidence to the question of whether or not the accused committed the crime charged? This may well turn on the facts which the evidence is being used to prove. Evidence which might, for example, have little inferential force when used to prove that a crime was committed, or to prove identity, might well be of considerable inferential force when used to prove that an act known to have been done by the accused was done with a state of mind which renders the act criminal. In describing in shorthand what it is about the evidence in a particular case that gives it sufficient probative value to be admitted, the courts have come to use several different phrases. The most famous of these is undoubtedly the phrase ‘striking similarity’; ‘underlying unity’ is another. As a majority of the High Court emphasised in Pfennig v R (1995), however, ‘striking similarity, underlying unity and other like descriptions of similar facts are not essential to the admission’ of tendency or coincidence evidence. Nevertheless, the court continued, ‘usually the evidence will lack the requisite probative force if the evidence does not possess such characteristics’.32 Similarly, in Hoch v R (1988), a majority of the court noted that tendency or coincidence evidence ‘which does not raise a question of improbability’ – about the accused’s innocence – ‘lacks the requisite probative value’.33 13.3.3.2 The other evidence in the case The probative value of tendency or coincidence evidence must also be assessed in the context of the case in which it is to be used. As Brennan J stated in Sutton v R (1984), the probative value of tendency or coincidence evidence ‘is to be ascertained by reference to the whole body of proof in the case viewed in the light of experience’.34 Similarly, ss 97(1)(b) and 98(1)(b) of the uniform evidence legislation explicitly direct the court to assess probative value ‘having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence’. The other evidence in the case can make an enormous difference to the probative value of the tendency or coincidence evidence. __________________________________________________________________________________________________________________________________________

32 Pfennig v R (1995) 182 CLR 461, 484 (Mason CJ, Deane and Dawson JJ). 33 Hoch v R (1988) 165 CLR 292, 295 (Mason CJ, Wilson and Gaudron JJ). 34 Sutton v R (1984) 152 CLR 528, 549. 235

Principles of Evidence In Pfennig v R (1995), for example, the fact that the accused had a propensity to abduct boys for sexual purposes would not appear – on its own – to go very far towards proving that he had abducted and murdered the boy in question. But viewed in light of the evidence that he had the means to carry out the abduction and had actually spoken to the boy shortly before he disappeared, the evidence became highly probative. The High Court thus endorsed the trial judge’s comment on the voir dire into the admissibility of the evidence that it would: ... be an affront to common sense to postulate two persons in Michael Black’s vicinity at Murray Bridge, and both certainly at Sturt Reserve about the same time that afternoon, each with a propensity to kidnap and sexually assault young boys and each having the physical means that afternoon of doing so, one of them befriending the boy and lending him a fishing knife and the other within a fairly short space of time but quite independently engaging, presumably, in some kind of pre-abduction dealing with him, however brief, and both leaving Sturt Reserve in separate vehicles at much the same time.35

Absent this other evidence, the evidence of propensity would have been of very limited probative value; given the other evidence, it became the final piece of the jigsaw, placing the accused’s guilt beyond reasonable doubt. 13.3.3.3 The significance of similarities When all the crimes are proven to have occurred, but the identity of the perpetrator or perpetrators has not, the similarities between the crimes might be used to support an inference that all the crimes were committed by one person, as in Sutton v R (1984). Or if the accused has been proven to have committed crimes very similar to that charged, then those crimes may be offered as tendency evidence designed to prove that the accused must also have committed the crime charged, as in the well known English case of R v Straffen (1952). Both of these inferences depend on an assumption that different criminals have different modi operandi, and that if the modus operandi is sufficiently unusual or distinctive, then it may almost amount to a ‘signature’ identifying the perpetrator. It is usually in this context that courts employ the phrase ‘striking similarity’: if the crimes are ‘strikingly similar’ then this may support an inference that only one criminal was involved. If they are not, then the evidence may lack the probative value necessary for admission. In deciding how unusual or distinctive a particular criminal modus operandi really is, courts rely on their own experience and common sense, rather than on expert criminological evidence. Where propensity evidence is concerned, however, it needs to be borne in mind that human behaviour tends to be highly dependent on situational factors. In other words, the fact that a person behaved in a particular way in a particular situation may provide a good indicator of how they might behave in a similar situation, but will be of very __________________________________________________________________________________________________________________________________________

35 Pfennig v R (1995) 182 CLR 461, 472. 236

Tendency and Coincidence Evidence: The Accused little value as an indicator of how they might behave in a completely different situation.36 Similarities in the situations in which the various events occurred may, therefore, be as significant as the similarities in the events themselves. 13.3.3.4 Similarities in the stories told by witnesses Where the propensity or coincidence evidence is disputed, then similarities in the stories told by the victims of the alleged crimes may help to resolve doubt about whether or not the crimes occurred. This is because of ‘the improbability of the witnesses giving accounts of happenings having the requisite degree of similarity unless the happenings occurred’.37 In such cases, ‘the central question is that of the improbability of similar lies’.38 Because of this, the fact that the similarities might ‘have arisen from a cause common to the witnesses’ will usually mean that the evidence lacks the necessary probative value. 39 In Hoch v R (1989), for example, the three child complainants comprised two brothers and a friend of one of the brothers; in these circumstances it was impossible to rule out the possibility that the boys might have jointly concocted their allegations. In R v Von Einem (No 2) (1991) the court pointed to the possibility of ‘media infection’, ie, the possibility that the witness learnt the details of the other crime from the media. If joint concoction or some other ‘cause common to the witnesses’ remains a reasonable explanation of the similarities, then it cannot be said that there is ‘no reasonable explanation’ of the tendency or coincidence evidence which is consistent with the accused’s innocence. At common law, this means that the evidence will be inadmissible: Hoch v R (1989). It is unclear what approach will be taken under the uniform evidence legislation, where all that is required is that the probative value of the evidence substantially outweighs its prejudicial effect. It may be that the courts continue with the approach of the common law; or they may declare that the possibility of a ‘cause common to the witnesses’ is simply one of many factors which should be taken into account in assessing the probative value of tendency or coincidence evidence. In Victoria, however, it is clear that the mere possibility of joint concoction will not render the evidence inadmissible.40 13.3.3.5 Sexual offences In a case where the accused is alleged to have committed repeated crimes over an extended period of time against one particular person, a strict application of the tendency and coincidence rules might lead to the complete decontextualisation of the charge. The most common example of such a case is one involving charges of intra-family child sexual abuse. In such cases, the __________________________________________________________________________________________________________________________________________

36 37 38 39 40

See Evidence, ALRC 26, 1985, Vol 1 [795]–[797]. Hoch v R (1988) 165 CLR 292, 295 (Mason CJ, Wilson and Gaudron JJ). Ibid. DPP v Boardman [1975] AC 421, 444 (Lord Wilberforce). See Victoria, Parliamentary Debates, Legislative Assembly, 9 October 1991, 431. 237

Principles of Evidence courts have tended to admit the evidence of the other offences, notwithstanding that it might not be capable of satisfying the ‘no reasonable explanation consistent with innocence’ test. Thus Brennan J held in S v R (1989) that, ‘evidence of the entire incestuous relationship was admissible’.41 A similarly pragmatic approach may also be taken in cases where the accused is charged with offences against more than one complainant. In such cases the trial judge might adopt the simple expedient of refusing to order separate trials for the counts relating to each of the different complainants. In England, however, the House of Lords has expressly overruled any suggestion that in order for the evidence relating to one complainant to be admissible on the charges relating to the other, there must be ‘some feature of similarity beyond what has been described as the paederast’s or the incestuous father’s stock in trade’.42

13.4

Summary

13.4.1 The exclusionary rule Tendency and coincidence evidence is prima facie inadmissible at both common law and under the uniform evidence legislation, although the precise scope of the exclusionary rules does differ, depending upon whether it is the uniform evidence legislation or the common law which is being applied. 13.4.1.1 Uniform evidence legislation jurisdictions Under the uniform evidence legislation, tendency and coincidence evidence are defined as follows: • tendency evidence is evidence of the ‘character, reputation or conduct of a person, or a tendency that a person has or had’ when used to prove that the person may have acted in conformity with that tendency on the occasion in question: s 97; • coincidence evidence is evidence of ‘two or more related events’ when led to prove ‘that, because of the improbability of the events occurring coincidentally, a person did a particular act or had a particular state of mind’: s 98. 13.4.1.2 Common law jurisdictions Under the common law, tendency and coincidence evidence are often referred to as either similar fact evidence or propensity evidence, and the rule which leads to the exclusion of such evidence is often referred to as the similar fact rule: __________________________________________________________________________________________________________________________________________

41 S v R (1989) 168 CLR 266, 271; see also Wackerow v R (1996). 42 DPP v P [1991] 2 AC 447, 461. 238

Tendency and Coincidence Evidence: The Accused • evidence falls within the scope of this rule, and is, therefore, prima facie inadmissible if it meets two conditions: ❍ it tends to show that the accused has committed crimes other than that with which he or she is charged, or has a propensity to commit crime (the ‘contents-based’ condition); and ❍ it is being used as either tendency/propensity evidence or coincidence evidence (the ‘use-based’ condition); • the evidence will be being used as tendency/propensity evidence if the inference that the accused has a tendency or propensity to act in a particular (criminal) way is an essential intermediate inference between the evidence and the ultimate inference of guilt; • the evidence will be being used as coincidence evidence if the jury are invited to infer that the association of the accused with so many similar events renders improbable an innocent explanation for the events or the accused’s involvement in them, or if the jury are invited to infer that a series of crimes are so similar that they must all have been committed by the same person, namely the accused.

13.4.2 The inclusionary exception Although prima facie inadmissible, tendency and coincidence evidence can be admitted at both common law and under the uniform evidence legislation, if it meets certain threshold requirements. 13.4.2.1 Uniform evidence legislation jurisdictions When tendency and coincidence evidence relating to the accused in criminal proceedings is adduced by the prosecution: • the prosecution must have given reasonable notice of their intention to adduce the evidence: ss 97(1)(a) and 98(1)(a); and • the probative value of the evidence must substantially outweigh its prejudicial effect: s 101(2); • unless, that is, the tendency or coincidence evidence has been adduced to explain or contradict tendency or coincidence evidence led by the accused, in which case the normal requirement of significant probative value (imposed by ss 97 and 98) applies: s 101(3) and (4); • generally, though, a consideration of the admissibility of tendency or coincidence evidence requires an assessment of both the probative value and prejudicial effect of the evidence. 13.4.2.2 Common law jurisdictions Tendency and coincidence evidence (or ‘similar fact evidence’, as it is usually called) is admissible:

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Principles of Evidence • if its probative value is such that there is no rational explanation for the evidence which is consistent with the accused’s innocence of the crime charged; • the test for admissibility only requires, therefore, a consideration of the probative value of the evidence. 13.4.2.3 Victoria Propensity evidence is admissible: • if it is just in all the circumstances to admit it, notwithstanding any prejudicial effect it may have.

13.4.3 Assessing probative value The probative value of evidence is a function of two key factors: the credibility of the evidence and its inferential force. While no hard and fast rules can be laid down, an assessment of the probative value of tendency and coincidence evidence will usually require consideration of the following variables: • the facts in proof of which the tendency or coincidence evidence is being adduced; • the degree to which the events which constitute the tendency or coincidence evidence have been proven to have occurred, or have been proven to have involved the accused; • the extent of any similarities between the crime charged and the events which constitute the tendency or coincidence evidence; and • the other evidence in the case, and its relationship to the tendency or coincidence evidence.

13.4.4 Assessing prejudicial effect The prejudicial effect of evidence is its tendency to undermine the fairness of a trial. In assessing the likely prejudicial effect of a particular item of tendency or coincidence evidence, the following factors should be considered: • the risk that the probative value of the evidence may be overestimated by the tribunal of fact; • the risk that the tendency or coincidence evidence will divert the trial into collateral issues; and • the risk that the evidence will create such antipathy to the accused that he or she is denied the benefit of any reasonable doubt.

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Tendency and Coincidence Evidence: The Accused

Tendency and coincidence evidence: the accused No

Does the evidence reveal other criminal misconduct or suggest that accused has criminal propensities?

No THE EVIDENCE IS NOT TENDENCY OR COINCIDENCE EVIDENCE AND IS ADMISSIBLE SUBJECT ONLY TO DISCRETION

Yes Is the evidence being used as tendency/propensity evidence? Yes

THE EVIDENCE IS INADMISSIBLE

on m m Co law

U n le evid ifo gi e rm sla nc tio e n

Is the evidence relevant?

No Is the evidence being used as coincidence evidence?

No

Yes

The evidence is tendency or coincidence evidence and is prima facie inadmissible

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Principles of Evidence

Uniform evidence legislation

Common law Is there a rational explanation for the evidence consistent with the accused being innocent of the crime charged?

No

Yes

Victoria

Does the probative value of the evidence substantially outweigh its prejudicial effect?

Yes

No

THE EVIDENCE IS ADMISSIBLE

Is it just in all the circumstances to admit the evidence?

Yes

No

THE EVIDENCE IS INADMISSIBLE

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CHAPTER 14

CREDIBILITY EVIDENCE

14.1

Introduction

14.1.1 Overview This chapter deals with the admissibility of evidence which is relevant to the credibility of a witness, other than the accused. The following related areas are covered in the chapters which precede and follow this one: • the use of sexual history evidence in sexual offence trials when put forward as relevant to the facts in issue is discussed in Chapter 12: Tendency and Coincidence Evidence; • the use of evidence of the accused’s bad character or prior criminal conduct when put forward as relevant to the facts in issue is discussed in Chapter 13: Tendency and Coincidence Evidence: The Accused; and • all other evidence relating to the character and credibility of the accused is dealt with in Chapter 15: The Character and Credibility of the Accused. This division of topics, which is slightly different from the traditional approach, is intended to reflect the approach taken in the uniform evidence legislation.

14.1.2 What is credibility evidence? Credibility evidence is evidence which relates to the credibility of a witness. The following definition from the dictionary section of the uniform evidence legislation is a useful starting point: Credibility of a witness means the credibility of any part or all of the evidence of the witness, and includes the witness’s ability to observe or remember facts and events about which the witness has given, is giving or is to give evidence.

Credibility evidence therefore includes all of the following: • evidence relating to the witness’s general honesty, expertise or standing in the community; • evidence showing that, in the circumstances of the particular case, the witness has a motive to lie; • evidence showing that the witness’s evidence is either consistent or inconsistent with other statements the witness has made about the events in question; and • evidence relating to the witness’s capacity for accurate observation and recollection. 243

Principles of Evidence

14.1.3 The relevance of credibility evidence Credibility evidence is relevant because anything which affects the probability that a witness is telling the truth obviously affects the probability of the existence of the facts to which they are testifying. The relevance of credibility evidence is therefore recognised by s 55(2) of the uniform evidence legislation, which provides that ‘evidence is not taken to be irrelevant only because it relates only to: (a) the credibility of a witness’. Credibility is crucial in the common law trial, because in the vast majority of cases the tribunal of fact will have to decide which of two or more contradictory or inconsistent bodies of evidence to accept. In making this decision the tribunal of fact will clearly take into account its perceptions of the credibility of each of the competing witnesses. Given the importance of credibility, there is obviously an argument that credibility evidence ought to be freely admitted because if the tribunal of fact must choose between two witnesses, then the more they know about those two witnesses the more likely they are to make the correct choice. The free admission of credibility evidence, however, would be timeconsuming and would lead to a proliferation of issues with no direct bearing on the facts in issue. For this reason the general approach of both the common law and the uniform evidence legislation is to place severe restrictions on the use of credibility evidence.

14.2

The admissibility of credibility evidence

At both common law and under the uniform evidence legislation, credibility evidence is, in general, inadmissible. Thus, s 102 of the uniform evidence legislation provides that ‘Evidence that is relevant only to a witness’s credibility is not admissible’. There are then the following exceptions to this rule: • the accused is permitted to lead evidence that he or she is of good character and should therefore be believed on oath: see Chapter 15: The Character and Credibility of the Accused; • during cross-examination of a witness, a party is allowed to ask questions which are only relevant to the witness’s credibility (s 103), although there are some limitations on this when the witness is the accused (see s 104 and Chapter 15: The Character and Credibility of the Accused); • if, during cross-examination, a witness has denied a fact which is relevant to their credibility, then depending on the nature of the fact denied, the party may be permitted to lead evidence to rebut the denial (s 106); • in certain limited circumstances, evidence designed to re-establish the credibility of a witness whose credibility has been impugned is admissible (s 108); and

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Credibility Evidence • if a hearsay representation has been admitted, then evidence relevant to the credibility of the person who made the representation may be admissible (s 108A). At common law the rules are largely the same, although the authority for this cannot be so conveniently identified. This means that the starting point for both the common law and the uniform evidence legislation is the proposition that credibility evidence is generally inadmissible. The effect of this is that it is not permissible for a party to: • lead evidence-in-chief that a witness called by the party is a credible witness, unless the witness is the accused, as to which see Chapter 15: The Character and Credibility of the Accused (this does not, of course, prevent counsel from doing so surreptitiously through the initial identifying questions they ask the witness, or simply by asking the witness to dress formally before coming to court); • lead evidence of prior consistent statements made by the witness, except in the limited circumstances discussed below under the headings ‘The credibility of complainants in sexual offence trials’ and ‘Re-establishing credibility’; or • lead evidence, other than through cross-examination or in the circumstances discussed below under the heading ‘Rebutting false denials’, to show that a witness is not a credible witness.

14.3

Impeaching credibility through cross-examination

It is primarily through cross-examination that evidence designed to impeach the credibility of a witness can be led. This means that the evidence must be adduced from the very witness whose credibility is being impeached. The evidence will be led from the witness by means of leading questions. The leading question will put to the witness some allegation which, if true, would show that the witness is not a credible witness. Sometimes, the witness will deny the allegation; whether the cross-examiner can then lead evidence to prove the truth of the allegation is discussed below under the heading ‘Rebutting false denials’. For the moment, however, we are concerned only with the admissibility of the question itself.

14.3.1 Common law A question which is asked on the basis that it is relevant to the credibility of the witness will only be permitted if the truth of the allegation would indeed be likely to lower the standing of the witness in the eyes of the tribunal of fact. As Lawton J commented in R v Sweet-Escott (1971): Since the purpose of cross-examination as to credit is to show that the witness ought not to be believed on oath, the matters about which he is questioned

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Principles of Evidence must relate to his likely standing after cross-examination with the tribunal which is trying him or listening to his evidence.1

In Bickel v John Fairfax (1981), Hunt J added to this, noting that: The purpose of cross-examination as to credit is to show that a witness ought not to be believed on his oath ... Convictions, even for offences which do not themselves involve dishonesty, are generally admissible for that purpose ... apparently upon the basis that a conviction for any offence against the law may have some effect upon the credit of the offender ... But, convictions apart, the conduct or character of a witness cannot ... be used to attack his credit unless that conduct or character is of such a nature as to tend logically and rationally to weaken confidence in his veracity or in his trustworthiness as a witness of truth.2

For this reason, Hunt J refused to allow questions about a witness’s allegedly extreme political beliefs, commenting that ‘this is not cross-examination for the purpose of showing that by reason of his lack of veracity a witness should not be believed on oath; this is cross-examination for the purpose of prejudicing the tribunal of fact against that witness as a person’.3 In some jurisdictions, the threshold for the admissibility of questions relevant only to credibility has been raised by statute. In Victoria, Western Australia, South Australia, Tasmania and the Northern Territory the court has a discretion to disallow questions relevant only to credibility, and in exercising this discretion is to have regard to the following considerations: (a) Such questions are proper if they are of such a nature that the truth of the imputation conveyed by them would seriously affect the opinion of the court as to the credibility of the witness on the matter to which he testifies. (b) Such questions are improper if the imputation which they convey relates to matters so remote in time or of such a character that the truth of the imputation would not affect, or would affect in a slight degree only, the opinion of the court as to the credibility of the witness on the matter to which he testifies. (c) Such questions are improper if there is a great disproportion between the importance of the imputation made against the witness’s character and the importance of his evidence.4

Similarly, in Queensland, questions relevant only to credibility may be disallowed if the matter to which the questions relate ‘is so remote in time or is of such a nature that an admission of its truth would not materially affect __________________________________________________________________________________________________________________________________________

1 2 3 4

R v Sweet-Escott (1971) 55 Cr App R 316, 320. Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474, 494. Ibid, 494. The sections reproduced are from the Evidence Act 1906 (WA), s 25(2). The following provisions are in substantially identical terms: Evidence Act 1958 (Vic), s 37; Evidence Act 1929 (SA), s 23; Evidence Act 1910 (Tas), s 102; and Evidence Act 1939 (NT), s 15. 246

Credibility Evidence the credibility of the witness’.5 The matters which are likely to be capable of passing these tests will no doubt be similar to those identified below in relation to the uniform evidence legislation.

14.3.2 The uniform evidence legislation The uniform evidence legislation also sets a higher threshold for the admissibility of questions relevant only to credibility, with s 103(1) of the legislation providing that: The credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence has substantial probative value.

It is suggested that credibility evidence can only be regarded as having ‘substantial probative value’ if the matters to which it relates would, if true, seriously affect the tribunal of fact’s opinion about the credibility of the witness. Without limiting the matters to which the court may have regard in deciding whether the evidence has ‘substantial probative value’, s 103(2) requires the court to have regard to: (a) whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth; and (b) the period that has elapsed since the acts or events to which the evidence relates were done or occurred.

The higher threshold of admissibility was justified by the Australian Law Reform Commission on the following basis: A witness should no longer be open to cross-examination on any negative aspect of character or misconduct on the basis that it is relevant to credibility. The research of psychologists suggests that emphasis should be placed on evidence of conduct which is similar to testifying untruthfully (ie, involves false statements) and which took place in circumstances similar to those of testifying (ie, the witness was under a substantial obligation to tell the truth at the time).6

In light of s 106, which specifies the matters which may be proved if denied by the witness, it is suggested that cross-examination might be permitted under s 103 on the following matters: • bias or motive for being untruthful; • convictions, but only those which are both reasonably recent and which involve an element of dishonesty; • the making of prior inconsistent statements about the events in question; and __________________________________________________________________________________________________________________________________________

5 6

Evidence Act 1977 (Qld), s 20. Evidence, ALRC 26, 1985, Vol 1 [819]. 247

Principles of Evidence • occasions where the witness has, while under an obligation to tell the truth, failed to do so.

14.3.3 Impeaching the credibility of a hostile witness On occasion, a witness called by a party may turn out to be ‘hostile’; when this happens, the party may be allowed to cross-examine the party: see Chapter 2: Witnesses. Under the uniform evidence legislation, such cross-examination may – with the leave of the court – include cross-examination on matters relevant only to credibility: s 38(3). At common law, however, the party is not permitted to impeach the witness’s credibility by means of their bad character or prior conduct: Holdsworth v Mayor of Dartmouth (1838). This rule is now in statutory form.7 Credibility may, however, be impeached by means of cross-examination about matters such as the witness’s capacity for accurate observation and recollection. There are also statutory provisions permitting cross-examination about any prior inconsistent statements the witness may have made.8 In South Australia the courts have gone further and have held that the crossexamination of a hostile witness is no different from the cross-examination of an opponent’s witness, thereby allowing cross-examination on all matters relevant to the witness’s credibility: see Price v Bevan (1974) and R v Smith (No 2) (1995).

14.4

Rebutting false denials

The section above dealt with the admissibility of questions which put to the witness some allegation which, if true, would show that the witness is not a credible witness. This section is concerned with what happens when a witness denies the allegation, and in particular with the question of whether the crossexaminer can then lead evidence to prove the truth of the allegation. The general rule is that the cross-examiner cannot lead evidence to prove the truth of the allegation, although there are several exceptions to this general rule.

14.4.1 The general rule The general rule is that the cross-examiner may not prove the truth of an allegation which is denied by the witness, where the allegation is only relevant to the witness’s credibility. At common law, this is known as the ‘collateral issues’ rule because the credibility of a witness is seen as being a __________________________________________________________________________________________________________________________________________

7 8

See Evidence Act 1958 (Vic), s 34; Evidence Act 1977 (Qld), s 17(1); Evidence Act 1906 (WA), s 20; Evidence Act 1929 (SA), s 27; Evidence Act 1910 (Tas), s 97; Evidence Act 1939 (NT), s 18. See Evidence Act 1958 (Vic), s 34; Evidence Act 1977 (Qld), s 17; Evidence Act 1906 (WA), s 21; Evidence Act 1929 (SA), s 27; Evidence Act 1910 (Tas), s 98; and Evidence Act 1939 (NT), s 18. 248

Credibility Evidence merely ‘collateral’ issue. Under the uniform evidence legislation, the general rule is one aspect of the main credibility rule in s 102. The effect of the rule is that the cross-examiner is ‘bound’ by the witness’s answers on matters relevant only to credibility. This does not, of course, mean that the tribunal of fact is bound to believe the witness’s answers; it simply means that the answers are final and that the cross-examiner cannot disprove them by leading evidence from other witnesses. The rule is based on a desire to avoid a confusing and time-consuming proliferation of issues. As Alderson B commented in Attorney General v Hitchcock (1847): The reason why a party is obliged to take the answer of a witness is that if he were permitted to go into it, it is only justice to allow the witness to call other evidence in support of the testimony he has given, and as these witnesses might be cross-examined as to their conduct, such a course would be productive of endless collateral issues.9

The main difficulty in applying the rule is in determining whether the matter to which the questions relate is indeed a ‘collateral’ issue. One way of testing whether the matter is relevant only to the credibility of the witness is to ask whether it is sufficiently relevant to the facts in issue that the party would have been permitted to lead evidence of the matter in their case-in-chief. This was the test suggested by Pollock CB in Attorney General v Hitchcock (1847): [T]he test, whether a matter is collateral or not, is this: if the answer of a witness is a matter which you would be allowed on your own part to prove in evidence – if it have such a connection with the issue, that you would be allowed to give it in evidence – then it is a matter on which you may contradict him.10

14.4.2 Exceptions to the rule: common law At common law, if the witness denies any of the following matters relevant to credibility, then the truth of the matter can be proved: • the fact that the witness may be biased in favour of the party which called him or her through having some interest, direct or indirect, in the outcome of the case (this will often be perfectly obvious, as where the party and witness are related in which case rebuttal will be unnecessary); • the fact that the witness has been convicted of a criminal offence (this exception has now been given statutory form in most jurisdictions);11 • the fact that the witness has made a prior inconsistent statement; that is, a statement inconsistent with his or her testimony at trial (the means by __________________________________________________________________________________________________________________________________________

9 Attorney General v Hitchcock (1847) 1 Exch 91, 103–04; 154 ER 38, 44. 10 Attorney General v Hitchcock (1847) 1 Exch 91, 99; 154 ER 38, 42. 11 See Evidence Act 1958 (Vic), s 33; Evidence Act 1977 (Qld), s 16; Evidence Act 1906 (WA), s 23(1); Evidence Act 1929 (SA), s 26; and Evidence Act 1910 (Tas), s 100. 249

Principles of Evidence which the statement may be proved is often governed by statute, such statutes having been discussed in Chapter 2: Witnesses);12 • the fact that the witness has a poor reputation for veracity (that they are, for example, a ‘notorious liar’); the witness testifying to this reputation may also testify that in their opinion, based on their personal knowledge of the witness, the witness ought not to be believed on their oath; but the reputation witness may not testify about any specific conduct upon which their opinion may be based; see R v Richardson; R v Longman (1969); • the fact that the witness lacks the capacity for accurate observation or recollection; this exception undoubtedly covers incapacity caused by some ‘disease or defect or abnormality of mind that affects the reliability of [their] evidence’;13 it is not clear whether it extends to physical incapacity such as poor eyesight. It is also unclear whether the cross-examiner will be permitted to prove a lack of opportunity for observation. The cross-examiner might, for example, wish to prove that a witness who claimed to have seen the events in question was somewhere else at the time. The High Court’s decision in Piddington v Bennett and Wood Pty Ltd (1940) arguably suggests that this would not be permitted. More recently, however, the courts have indicated that a flexible approach to the collateral issues rule should be taken, and that the list of exceptions is not closed. In Natta v Canham (1991), for example, the Federal Court commented that: A trial judge should not be precluded from determining in an appropriate case that the matter on which a witness’s credit is tested is sufficiently relevant to that credit as it bears upon the issues in the case that such evidence may be admitted.14

This suggests that a witness’s lack of opportunity for observation could be proved.

14.4.3 Exceptions to the rule: uniform evidence legislation Under the uniform evidence legislation, the exceptions are contained in s 106, which is headed ‘Exception: rebutting denial by other evidence’, and which is in the following terms: The credibility rule does not apply to evidence that tends to prove that a witness: __________________________________________________________________________________________________________________________________________

12 See Evidence Act 1958 (Vic), ss 35 and 36; Evidence Act 1977 (Qld), ss 18 and 19; Evidence Act 1906 (WA), s 21; Evidence Act 1929 (SA), ss 28 and 29; Evidence Act 1910 (Tas), ss 98 and 99; and Evidence Act 1939 (NT), ss 19 and 20. 13 Toohey v Commissioner of Metropolitan Police [1965] AC 595, 609. 14 Natta v Canham (1991) 104 ALR 143, 161 (French, O’Loughlin and Higgins JJ); see also Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471. 250

Credibility Evidence (a) is biased or has a motive for being untruthful; or (b) has been convicted of an offence, including an offence against the law of a foreign country; or (c) has made a prior inconsistent statement; or (d) is, or was, unable to be aware of matters to which his or her evidence relates; or (e) has knowingly or recklessly made a false representation while under an obligation, imposed by or under an Australian law or a law of a foreign country, to tell the truth; if the evidence is adduced otherwise than from the witness and the witness has denied the substance of the evidence.

Section 106 both adds to and reduces the exceptions to the collateral issues rule available at common law. Those contained in paras (a), (b) and (c) are obviously analogous to the common law exceptions for bias, prior convictions, and prior inconsistent statements discussed above (note, however, that the manner in which a prior inconsistent statement must be proved is governed by s 43, which is discussed in Chapter 2: Witnesses). There is, however, no exception corresponding to that which is available at common law for reputation as to veracity. The Australian Law Reform Commission took the view that evidence of reputation was of very limited probative value, and that it would be better to allow proof of actual conduct on the part of the witness: hence the exception contained in para (e). The exception contained in para (d) appears to have been intended to allow proof of the fact that the witness lacked both the capacity for observation and the opportunity for observation; it thus extends the equivalent common law exception discussed above. Perhaps most notable, however, is the fact that under the uniform evidence legislation the list of exceptions to the collateral issues rule is clearly closed.

14.5

Re-establishing credibility

If a witness’s credibility has been impeached, then the party calling the witness may be permitted to lead evidence to restore the witness’s credibility, even though such evidence would not have been permitted to be led in chief.

14.5.1 Re-examination Section 108(1) of the uniform evidence legislation provides that ‘the credibility rule does not apply to evidence adduced in re-examination of a witness’. This is not as wide as might at first appear. Section 39 limits re-examination to ‘matters arising out of evidence given by the witness in cross-examination’ or in relation to which the court gives leave. This means that s 108(1) will usually only allow credibility evidence to be led about matters which were dealt with in cross-examination. The position is essentially the same at common law. 251

Principles of Evidence

14.5.2 Prior consistent statements At common law, evidence of a prior consistent statement may be led when the cross-examiner has suggested that the witness’s testimony is a ‘recent invention’; that is, that it was fabricated by the witness between the time of the events in question and the time of the trial. In such cases, the party calling the witness is entitled to rebut the allegation of recent invention by leading evidence – either from the witness him or herself, or from a further witness – to show that the witness made a statement consistent with their testimony, at a time which is inconsistent with the cross-examiner’s allegation of invention. To be admissible for this purpose, therefore, the prior consistent statement must have been made at a point in time earlier than that at which the witness is alleged to have fabricated the version of events which they have given in their evidence: see Nominal Defendant v Clements (1960). The clearest example of such inconsistency is when the prior consistent statement was made contemporaneously with the events in question. Under the uniform evidence legislation, s 108(3) creates the following exception for prior consistent statements: The credibility rule does not apply to evidence of a prior consistent statement of a witness if: (a) evidence of a prior inconsistent statement of the witness has been admitted; or (b) it is or will be suggested (either expressly or by implication) that evidence given by the witness has been fabricated or reconstructed (whether deliberately or otherwise) or is the result of a suggestion; and the court gives leave to adduce the evidence of the prior consistent statement.

There are in effect two exceptions. The first exception applies when a prior inconsistent statement has been used to impeach credibility and allows the use of a prior consistent statement to restore it. The second exception is equivalent to the common law rule above, which allows for the rebuttal of an allegation of recent invention. The main difference between the common law rule and the uniform evidence legislation exception is that the uniform evidence legislation exception allows the admission of the prior consistent statement before the allegation has been made, provided it is clear that it will be made.

14.5.3 Expert evidence At common law, a witness’s credibility may sometimes be rehabilitated through expert evidence. In a child sexual abuse case, for example, the complainant’s credibility might be challenged in cross-examination on the basis that her behaviour or prior statements were inconsistent with her complaint. The allegedly inconsistent behaviour might be a delay in making the complaint; or the complainant might have made a series of statements in 252

Credibility Evidence which her allegations of abuse became progressively more detailed or extensive; or the complainant might at some stage have recanted her allegations. In such situations, the prosecution might wish to lead expert evidence about the behaviour of abused children in order to show that the behaviour exhibited by the complainant was not in fact inconsistent with the allegations of abuse. As the courts commented in each of C v R (1993), J v R (1994) and F v R (1995), provided that the expert evidence meets the requirements for the admissibility of expert evidence discussed in Chapter 8: Opinion Evidence, there is no reason why expert evidence can not be used to rehabilitate the credibility of a witness whose credibility has been impeached in cross-examination. It is less clear, however, that this would be permitted under the uniform evidence legislation. This is because the opinion rule and the credibility rule apply cumulatively. This means that expert evidence which is relevant only to the credibility of a witness would fall foul of the credibility rule, even if it satisfied the requirements of the opinion rule. The expert evidence would only be admissible if it fell within the terms of an exception to the credibility rule. The obvious one would be s 108, but it contains no provision for the admission of expert evidence to restore credibility. The only methods of restoring credibility which are permitted by the legislation are those discussed above: re-examination of the witness, and the use of prior consistent statements. This means that under the uniform evidence legislation, the only way in which expert evidence can be used to restore the credibility of a witness is to claim that it is actually relevant to the facts in issue.

14.6

The credibility of complainaints in sexual offence trials

The rules discussed under the previous heading and under the next apply to all witnesses, including the complainant in a sexual offence trial. In addition to these rules, however, there are some special rules which apply only to the complainant in a sexual offence trial.

14.6.1 Prior consistent statements At common law, evidence may be given of a ‘recent complaint’ made by the complainant. The historical roots of this lie in the belief that a woman who had been raped would raise an immediate ‘hue and cry’; failure to complain of the rape at the earliest possible opportunity was therefore used as evidence of consent. Conversely, the prosecution was permitted to lead evidence that the complainant had raised a hue and cry in order to rebut any inference of consent. This rule survives as an exception to the general prohibition on prior consistent statements. The ‘recent complaint’ will be an account of the offence given by the complainant to a friend, relative, bystander or the police. If admitted, the recent complaint can only be used to bolster the credibility of the complainant: see R v Kilby (1973) and Jones v R (1997). In other words, the 253

Principles of Evidence complaint is to be viewed as a prior consistent statement, which because of its consistency, suggests that the complainant is more likely to be telling the truth at trial. It is not admitted, however, for its truth: that would contravene the hearsay rule. For this reason, the complaint can only be admitted if it does indeed show consistency. To be admitted for this purpose, the complaint must be spontaneous and must have been made at the first reasonable opportunity: see R v Adams and Ross (1965) and R v Freeman (1980). Courts have been slow to acknowledge the fact that victims of sexual offences are often reluctant to report an offence. This means that a complaint could be viewed as consistent with the complainant’s testimony even if it was made after a significant delay, or in response to questioning rather than spontaneously. Despite this, evidence of complaints is often excluded on the grounds that the complaint was not made at the first reasonable opportunity, or was insufficiently spontaneous.15 The position is different under the uniform evidence legislation. A recent complaint is likely to be admissible in exception to the hearsay rule as a previous representation made by a witness when ‘the occurrence of the asserted fact was fresh in the memory’ of the complainant: see s 66(2), and the discussion of it in Chapter 7: Hearsay: Exceptions to the Rule. Evidence of a complaint could also be admitted as credibility evidence under s 108 of the uniform evidence legislation, discussed above under the heading ‘Reestablishing credibility’; moreover, if admitted for that purpose, it could then be used for its truth, by virtue of s 60 of the legislation, which was discussed in Chapter 6: Hearsay: The Exclusionary Rule. See H v R (1994).

14.6.2 Delay Where there is no ‘recent’ complaint, defence counsel may cross-examine the complainant with a view to showing that she did not make a complaint at the earliest possible opportunity. The High Court has held that the absence of, or delay in making, a complaint is irrelevant to the issues in a rape trial, but that it is relevant to the credibility of the complainant: Kilby v R (1973). If defence counsel does suggest that there was a delay in making a complaint, however, then statutory provisions in several jurisdictions now require the judge to warn the jury that delay in complaining does not necessarily indicate that the allegation is false, and to inform the jury that there may be good reasons why a victim of sexual assault may hesitate in complaining about it.16

__________________________________________________________________________________________________________________________________________

15 See Gender Bias and the Law Project, Heroines of Fortitude: The Experiences of Women in Court as Victims of Sexual Assault, 1996, New South Wales: Department for Women, pp 199–219. 16 See Crimes Act 1900 (NSW), s 405B(2); Crimes Act 1958 (Vic), s 61(1)(b); Evidence Act 1906 (WA), s 36BD; and Criminal Code 1924 (Tas), s 371A. 254

Credibility Evidence

14.6.3 Sexual history evidence In all Australian jurisdictions, there are special statutory regimes governing the use of sexual history evidence relating to complainants in sexual offence trials. The admissibility of sexual history evidence when put forward on the basis that it is relevant to the facts in issue was discussed in Chapter 12: Tendency and Coincidence Evidence. This section of this chapter is concerned with the admissibility of such evidence when put forward on the basis that it is relevant to the credibility of the complainant as a witness. As noted in Chapter 12, the various rape shield provisions place prohibitions on certain types of question, usually those relating to the sexual activities or sexual experience of the complainant. The precise scope of these prohibitions was detailed in Chapter 12. In each of the jurisdictions, however, leave can be granted to permit crossexamination about sexual activities or sexual experience if certain conditions are met. In Western Australia and Tasmania, those conditions require that the evidence be relevant to the facts in issue. This suggests that in these two jurisdictions, cross-examination about sexual activities or experience which is put forward as relevant only to the complainant’s credibility is not permitted at all.17 In the other jurisdictions, however, cross-examination about sexual activities or experience relevant to the complainant’s credibility is permitted with the leave of the court. That leave can only be granted if the following conditions are met: • In New South Wales, three conditions must be met: first, that it has been ‘disclosed or implied’ in the prosecution case ‘that the complainant has, or may have, during a specified period or without reference to any period ... had sexual experience, or a lack of sexual experience, of a general or specified nature; or taken part in or not taken part in sexual activity of a general or specified nature’; secondly, that the accused ‘might be unfairly prejudiced if the complainant could not be cross-examined ... in relation to the disclosure or implication’; and thirdly, that the probative value of the questioning would outweigh ‘any distress, humiliation or embarrassment which the complainant might suffer as a result’ of the questioning being allowed.18 • In Victoria, Queensland and the Northern Territory, leave can only be granted if the complainant’s sexual activities are a ‘proper matter for crossexamination as to credit’, and they can not be so regarded ‘in the absence of special circumstances by reason of which it would be likely materially to impair confidence in the reliability of the evidence of the complainant’; moreover, in Victoria, the application for leave must be made in writing and given to the Director of Public Prosecutions 14 days before the trial, __________________________________________________________________________________________________________________________________________

17 See Evidence Act 1906 (WA), s 36BC(2)(a); and Evidence Act 1910 (Tas), s 102A(2)(a). 18 See Crimes Act 1900 (NSW), ss 409B(3)(f) and (5). 255

Principles of Evidence and must set out the initial questions to be asked and the scope of the questioning sought to flow from the initial questioning.19 • In South Australia, leave can only be granted if the court is satisfied that the questioning ‘would, in the circumstances, be likely materially to impair confidence in the reliability of the evidence of the alleged victim’ and that its admission ‘is required in the interests of justice’; moreover, in exercising his or her discretion, the judge is required to give effect to the principle that ‘alleged victims of sexual offences should not be subjected to unnecessary distress, humiliation or embarrassment’.20 • In the Australian Capital Territory, leave can only be granted if the ‘judge is satisfied that a refusal to allow the evidence to be adduced or the question to be asked would prejudice the fair trial of the accused’.21

14.7

The credibility of hearsay

The uniform evidence legislation takes a much more flexible approach to hearsay, admitting it far more freely than at common law. Because of this, there might be concerns about the reliability of some of the hearsay admitted. Section 108A of the uniform evidence legislation addresses some of those concerns, by allowing credibility evidence to be led in relation to the person who made the representation. Section 108A(1) is in the following terms: If: (a) because of a provision of Part 3.2, the hearsay rule does not apply to evidence of a previous representation; and (b) evidence of the representation has been admitted; and (c) the person who made the representation has not been called, and will not be called, to give evidence in the proceeding; evidence that is relevant only to the credibility of the person who made the representation is not admissible unless the evidence has substantial probative value.

Credibility in relation to a person who has made a representation is defined in the Dictionary as follows: ‘Credibility’ of a person who has made a representation that has been admitted in evidence means the credibility of the representation, and includes the person’s ability to observe or remember facts and events about which the person made the representation.

__________________________________________________________________________________________________________________________________________

19 See Evidence Act 1958 (Vic), s 37A(1), Rules 3(a), 4(b) and 5(aa); Criminal Law (Sexual Offences) Act 1978 (Qld), s 4, Rules 3 and 4(b); and Sexual Offences (Evidence and Procedure) Act 1983 (NT), s 4. 20 See Evidence Act 1929 (SA), s 34i(2). 21 See Evidence Ordinance 1971 (ACT), s 76G(3). 256

Credibility Evidence The requirement of ‘substantial probative value’ is obviously designed to avoid an undesirable proliferation of evidence about the credibility of the makers of admissible hearsay representations. Moreover, it means that the same threshold applies to credibility evidence adduced in the crossexamination of a witness (in respect of which s 103(1) applies) and credibility evidence relating to the maker of a representation who is not a witness. Section 108A(2) specifies – non-exhaustively – two factors which the court is to take into account in determining whether or not the credibility evidence has substantial probative value: (a) whether the evidence tends to prove that the person who made the representation knowingly or recklessly made a false representation when the person was under an obligation to tell the truth; and (b) the period that elapsed between the doing of the acts or the occurrence of the events to which the representation related and the making of the representation.

These factors – which are essentially the same as those specified in s 103(2) – suggest that s 108A is primarily intended to permit the party against whom a previous representation is admitted to impeach the credibility of the maker of the representation. If negative credibility evidence is admitted, then the party which adduced evidence of the representation might of course be permitted to lead positive credibility evidence in rebuttal; but in the absence of such an attack, it is difficult to imagine cases where evidence designed to bolster the credibility of the maker of the representation could be held to have substantial probative value.

14.8

Summary

Evidence relevant only to the credibility of a witness is prima facie inadmissible at both common law and under the uniform evidence legislation. It is, however, admissible in the following situations: • during cross-examination, a witness may be asked questions which are only relevant to their credibility, although in most jurisdictions such questions are only permitted if they are either of substantial probative value, or if the answer to them would seriously affect the court’s assessment of their credibility; • where a witness denies an allegation which is relevant only to their credibility, the cross-examiner is not, as a general rule, permitted to prove the truth of the allegation by leading evidence from another source; • at common law such proof is permitted, however, if the allegation was one of bias, prior conviction, prior inconsistent statement, poor reputation for veracity, or lack of capacity for accurate observation or recollection; • under the uniform evidence legislation, such proof is permitted if the allegation was one of bias, prior conviction, prior inconsistent statement, 257

Principles of Evidence

•

• •

•

•

lack of capacity or opportunity for accurate observation or recollection, or the making of a false representation while under an obligation to tell the truth; under the uniform evidence legislation, if a witness’s credibility has been impeached in cross-examination by means of a prior inconsistent statement or an allegation of fabrication, the party calling the witness may be permitted to lead evidence of a prior consistent statement in order to reestablish the witness’s credibility; at common law, a witness’s prior consistent statements may also be admitted to rebut an allegation of fabrication; in sexual offence trials at common law, prior consistent statements by the complainant may be admissible, in exception to the general rule against credibility evidence to buttress the complainant’s credibility; rape shield provisions in several Australian jurisdictions also limit the use of evidence relating to a complainant’s sexual history when offered on the basis that it is relevant to the complainant’s credibility as a witness; finally, under the uniform evidence legislation, where evidence of a previous representation (ie, hearsay) has been admitted, evidence relevant to the credibility of the person who made the representation will be admissible if it is of substantial probative value.

258

CHAPTER 15

THE CHARACTER AND CREDIBILITY OF THE ACCUSED

15.1

Introduction

15.1.1 Overview This chapter deals with the following topics: • the accused’s right to lead evidence of his or her good character; • the prosecution’s right to rebut such evidence; • the admissibility of evidence relating to the credibility of the accused; • the cross-examination of the accused about matters relevant to his or her character and credibility; and • the admissibility of character and credibility evidence in joint trials of two or more accused. The rules discussed in this chapter obviously only apply, therefore, in criminal proceedings: see s 109 of the uniform evidence legislation. The following related areas are dealt with in the chapters which preceded this one: • evidence of the character or conduct of persons other than the accused, where this is put forward as relevant to the facts in issue, is dealt with in Chapter 12: Tendency and Coincidence Evidence; • evidence of the accused’s bad character or prior criminal conduct, where this is put forward as relevant to the facts in issue, is dealt with in Chapter 13: Tendency and Coincidence Evidence: The Accused; and • evidence of the character or conduct of persons other than the accused, where this is put forward as relevant to their credibility as witnesses, is dealt with in Chapter 14: Credibility Evidence.

15.1.2 What is character evidence? Although the word ‘character ’ is not defined in the uniform evidence legislation, the Australian Law Reform Commission made the following comments about what was meant by ‘character evidence’ both at common law and under its proposals: Character. According to the Concise Oxford Dictionary, this word means a ‘description of a person’s qualities’. The law, however, seems to have used it in a number of different ways, corresponding not only to this meaning but also to ‘reputation’ and ‘propensity’ as defined below. The usage adopted here is the normal dictionary one, adverting to an individual’s personality, his character traits. That character may be evidenced in three ways – by evidence of 259

Principles of Evidence ‘reputation’, opinion, or specific conduct of the person (including conduct which has resulted in convictions).1

15.2

The accused’s good character

15.2.1 Leading evidence of good character An accused person often wishes to lead evidence of his or her good character. Good character evidence goes to the facts in issue: that is, it is admitted on the basis that the accused’s good character makes it less likely that he or she would have committed the crime charged. It is, thus, a kind of favourable ‘tendency’ evidence, the opposite of the kind of tendency evidence which might be led by the prosecution in accordance with the rules discussed in Chapter 13. If the accused testifies, then good character evidence is also relevant to his or her credibility as a witness on the basis that a person of good character is more likely to tell the truth on oath. In either case, the judge should direct the jury about the use to which the good character evidence can be put: see R v Vye (1993). In many cases, such evidence is of minimal probative value; in other cases, such as one where the defence is one of identity and the accused’s good character is the only evidence suggesting that it is unlikely that he or she would have committed the crime charged, it may be crucial. That good character evidence is admissible, notwithstanding the general prohibitions on tendency and credibility evidence, is obviously a concession made to the accused in the interests of fairness and an additional method of reducing the risk of a wrongful conviction.

15.2.2 Common law At common law, character evidence is restricted to evidence of the accused’s reputation: R v Rowton (1865). This means that, technically speaking, a witness is not entitled to give evidence about the accused’s good character based on his or her personal knowledge of the accused, or on the basis of particular good acts he or she knows the accused to have performed. This rule is obviously difficult to apply, has little theoretical justification, and is, for these reasons, probably ‘not observed in practice’.2

15.2.3 The uniform evidence legislation The uniform evidence legislation overrules Rowton’s case, allowing the accused to establish his or her good character with evidence which would __________________________________________________________________________________________________________________________________________

1 2

Evidence, ALRC 26, 1985, Vol 1 [785]. Attwood v R (1960) 102 CLR 353, 359. 260

The Character and Credibility of the Accused ordinarily infringe the hearsay, opinion, tendency and credibility rules. Section 110(1) thus provides that: The hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced by a defendant to prove (directly or by implication) that the defendant is, either generally or in a particular respect, a person of good character.

The non-application of the hearsay rule, opinion rule and tendency rule means that good character evidence can be led on the basis that it makes it less likely that the accused would have committed the crime charged; the nonapplication of the credibility rule means that good character evidence can be led on the basis that it makes it more likely that the accused would tell the truth on oath. The removal of the restriction in Rowton’s case means that the accused can attempt to establish his or her good character in any of the following ways: • by leading evidence of his or her good reputation; • by leading expert opinion evidence about his or her character and propensities; or • by leading evidence of his or her habits or past conduct.

15.3

Rebutting a claim of good character

If the accused claims that they are, because of their good character, less likely to have committed the offence or more likely to be telling the truth when they testify, then it must clearly be open to the prosecution to rebut the claim of good character. Were it otherwise, the tribunal of fact could be left with an entirely misleading impression of the accused’s character.

15.3.1 Has the accused placed his or her character in issue? Rebuttal is, of course, only permitted if a claim of good character has been made. In determining whether a claim of good character has been made, the question to ask is whether the accused has attempted to show that by reason of his or her good character, he or she is unlikely to have committed the crime charged: R v Fuller (1994). A claim of good character can be made in a variety of ways. In Stirland v DPP (1944) the accused testified that he had never been charged before. In R v Baker (1912) the accused stated that he had been earning an honest living for the last four years. In Crabbe v R (1984) the accused stated that he did not consider himself capable of doing an act such as that with which he was charged. In R v Perrier (No 2) (1991), counsel for the accused read out a letter which contained statements about the accused’s good character. In R v Ferguson (1909) the accused was charged with stealing four pamphlets from a Roman Catholic church. His defence was that he had

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Principles of Evidence bought them for one penny each while visiting the church to pray. In his evidence in chief he testified that he had attended mass for 36 years and had ‘never taken any article from his faith’. All were held to have placed their character in issue. The accused does not, however, place his or her character in issue by merely recounting his or her version of the events which are the subject of the charge, even though that version may cast him or her in a favourable light. Thus in Malindi v R (1967), the accused was charged with conspiring to commit arson and malicious injury during the civil war in Rhodesia (now Zimbabwe). The prosecution alleged that there had been a meeting at his house at which the conspiracy was formed. The accused said that the meeting had dispersed because he disapproved of violent action, and that as the meeting dispersed the others had abused him by calling him a ‘moderate’. By doing so he merely gave his version of the events which formed the subject of the charge. It is also worth noting that the accused does not, by attacking the character of prosecution witnesses, place his or her own character in issue: R v Butterwasser (1948). Such an attack may, of course, open the accused to prejudicial cross-examination in accordance with the rules discussed below; but it does not otherwise entitle the prosecution to lead evidence designed to show that the accused is, in fact, of bad character. As no claim of good character has been made, no rebuttal of such a claim can be permitted.

15.3.2 Is character divisible? At common law, the accused cannot place only part of his or her character in issue. Thus in R v Winfield (1939), the accused was charged with indecent assault on a woman. He called a witness who testified as to his good character with regard to women. The prosecution were permitted to rebut this claim of good character by leading evidence of the accused’s previous convictions for offences involving dishonesty. The court commented that ‘there is no such thing ... as putting half your character in issue’.3 This aspect of the common law is overruled by s 110(2) and (3) of the uniform evidence legislation, which distinguish between situations where the accused has led evidence to prove that he or she is ‘generally a person of good character’ and situations where the accused has led evidence to prove that he or she is ‘a person of good character in a particular respect’. If a claim of general good character has been made, then the prosecution may lead evidence designed to prove that the accused is not generally a person of good character: s 110(2). If, on the other hand, the accused has only claimed to have a good character in a ‘particular respect’, then the prosecution may only lead __________________________________________________________________________________________________________________________________________

3

R v Winfield [1939] 4 All ER 164, 165. 262

The Character and Credibility of the Accused evidence to prove that the accused is not a person of good character in that respect: s 110(3).

15.3.3 How can the claim be rebutted? The prosecution can rebut a claim of good character through crossexamination of the accused, through cross-examination of the accused’s character witnesses, or through the leading of evidence from its own witnesses. Rebuttal through cross-examination of the accused is discussed below under the heading ‘Cross-examining the accused’. At common law, the prosecution are given slightly wider latitude in rebutting a claim of good character than the defence is in attempting to establish good character. The wider latitude arises from the fact that the prosecution, unlike the defence, is not restricted to evidence of reputation. In rebutting a claim of good character, the prosecution may thus lead evidence of specific acts or incidents, particularly those which have resulted in a conviction: see R v Hamilton (1993). Such evidence can also be led by the prosecution under the uniform evidence legislation. Section 110(2) and (3) provide that ‘the hearsay rule, the opinion rule, the tendency rule and the credibility rule’ do not apply to evidence led to rebut a claim of good character. This means that the prosecution has as much latitude in rebutting the claim of good character as does the accused in making it: see above, under the heading ‘Leading evidence of good character’.

15.3.4 The effect of rebuttal evidence At common law, evidence led to rebut a claim of good character can only be used to rebut that claim. Good character evidence is offered on the basis that it decreases the likelihood of guilt. Bad character evidence led in rebuttal can only be used to negate the effect of the good character evidence, to prove that the accused does not in fact have the character that he or she has claimed to have. It cannot be used by the tribunal of fact as evidence which actually increases the likelihood of guilt: see R v Stalder (1981). In short, at common law the effect of evidence led in rebuttal is purely negative. The position is different under the uniform evidence legislation. The Australian Law Reform Commission commented that the common law rule ‘that the rebuttal evidence only negates good character without pointing to the likelihood of guilt seems incapable of enforcement’.4 For this reason, s 110(2) and (3) suspend the operation of the tendency rules when rebuttal evidence is led. This means that bad character evidence led in rebuttal can be used by the tribunal of fact as tendency evidence increasing the likelihood of the accused’s __________________________________________________________________________________________________________________________________________

4

Evidence, ALRC 26, 1985, Vol 1 [803]. 263

Principles of Evidence guilt. The operation of the credibility rule is also suspended: this means that the evidence can be used by the tribunal of fact in assessing the credibility of the accused as a witness.

15.4

Cross-examining the accused

Where cross-examination is concerned, the accused cannot be treated like any other witness. This is because material which is relevant to the credibility of the accused as a witness – such as prior convictions – could prejudice the tribunal of fact against the accused or be used by the tribunal of fact to decide the issues. In other words, the jury might use evidence of prior convictions not to decide that the accused is a witness who should not be believed, but to decide that the accused is just the sort of person who might have committed the crime charged. The admission of such evidence on the grounds that it is relevant to the accused’s credibility would thus provide an easy means of circumventing the tendency and coincidence rules discussed in Chapter 13. For this reason, there are special rules which apply to the admissibility of evidence designed to impeach the credibility of the accused as a witness. Under the uniform evidence legislation, the admissibility of negative credibility evidence relating to the accused is governed by s 104. Section 104 applies in addition to, rather than instead of, the general credibility rules discussed in the previous chapter, and only applies to the cross-examination of the accused. This means that the general rules apply to rebutting denials made by the accused, and to re-establishing the credibility of the accused. If, for example, an allegation is put to the accused during cross-examination, and the accused denies the allegation, then the question as to whether the crossexaminer will be permitted to prove the truth of the allegation is determined by the general credibility rules discussed in the previous chapter. Section 104 covers the same ground as has traditionally been covered by legislation based on the English Criminal Evidence Act 1898 (‘the 1898 legislation’). This legislation has its equivalents in all Australian jurisdictions other than those where the uniform evidence legislation applies.5 Section 8(e) of the Western Australian Evidence Act 1906 is fairly typical: A person charged and called as a witness pursuant to this section shall not be asked, and if asked, shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless– (i) the proof that he has committed or been convicted of such other offence is admissible evidence to show that he is guilty of the offence wherewith he is then charged; or __________________________________________________________________________________________________________________________________________

5

See Crimes Act 1958 (Vic), s 399(5); Evidence Act 1977 (Qld), s 15; Evidence Act 1906 (WA), s 8(1); Evidence Act 1929 (SA), s 18(1)VI; Evidence Act 1910 (Tas), s 85(10); and Evidence Act 1939 (NT), s 9(7). 264

The Character and Credibility of the Accused (ii) he has personally, or by his advocate, asked questions of the witnesses for the prosecution with a view to establishing his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution; or (iii) he has given evidence against any other person charged with the same offence.

The drafting of this legislation is, to say the least, unsatisfactory. The courts have grappled with its language for a hundred years in an attempt to give it a satisfactory operation and the law interpreting the legislation is for that reason complex and obscure. This book does not attempt to justify fully, by reference to the actual words of the statute, the various interpretations which it has been given. The important point to note is that both the uniform evidence legislation and the legislation equivalent to the English Criminal Evidence Act 1898 (‘the 1898 legislation’) place prohibitions on certain types of questions. The prohibitions do, however, differ significantly in their scope. In the discussion which follows, the prohibition on the asking of these questions will often be referred to as the accused’s ‘shield’.

15.4.1 The prohibited questions: the uniform evidence legislation Under the uniform evidence legislation, questions in cross-examination which are relevant to the facts in issue are subject to the judge’s general discretion and to exclusionary rules such as the tendency and the coincidence rules. Questions which are relevant only to the credibility of the accused are subject to the credibility rule and are prima facie prohibited: s 104(2). Certain credibility questions can, however, be asked without the leave of the court. Section 104(3) thus provides that the leave of the court is not required for cross-examination about whether the accused: (a) is biased or has a motive to be untruthful; or (b) is, or was, unable to be aware of or recall matters to which his or her evidence relates; or (c) has made a prior inconsistent statement.

Unlike questions about prior convictions, questions about bias or prior inconsistent statements are unlikely to prejudice the accused in any way. Extra protection is therefore unnecessary. All other questions relevant to credibility, however, may only be asked with the leave of the court: s 104(2); and this leave may only be granted in the circumstances discussed below under the headings ‘Where the accused has claimed to be of good character’, ‘Where the accused has made imputations against the character of prosecution witnesses’ and ‘Cross-examination by the co-accused’.

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Principles of Evidence

15.4.2 The prohibited questions: the 1898 legislation Under the 1898 legislation there is no general prohibition on crossexamination as to credibility. This means that questions about prior inconsistent statements and so on are automatically allowed. Instead, there is a prohibition on four specific types of prejudicial questions, namely: • questions tending to show that the accused has committed any other offence; • questions tending to show that the accused has been convicted of any other offence; • questions tending to show that the accused has been charged with any other offence; and • questions tending to show that the accused is of bad character. The prohibition on these questions is often referred to as the accused’s ‘shield’. The shield does not, however, prevent the following kinds of questions from being asked in cross-examination: • questions directly relevant to the facts in issue, such as ‘Where were you on the night of the crime?’ Such questions are permitted as a result of the removal from the accused of the privilege against self-incrimination in so far as it would otherwise have applied to questions about the crime charged: see Chapter 17: Privilege and Immunity. • questions tending to show that the accused has committed or been convicted of any other offence, where such questions are relevant to the facts in issue. This is a result of the first exception to the prohibition which applies when ‘proof that he has committed or been convicted of such other offence is admissible evidence to show that he is guilty of the offence wherewith he is then charged’.6 The most obvious class of questions to which this exception applies is questions about admissible tendency or coincidence evidence. In Queensland and South Australia only, this first exception also applies to questions tending to show that the accused has been charged with another offence or is of bad character. • questions tending to show that the accused is of bad character, where this is relevant to the facts in issue. Such questions are permitted as a result of the High Court’s decision in Attwood v R (1960) that the prohibition on questions tending to show ‘bad character ’ applied only to questions relevant to credibility. The question must not, of course, offend any of the other exclusionary rules, such as the rules against tendency and coincidence evidence.

__________________________________________________________________________________________________________________________________________

6

See Crimes Act 1958 (Vic), s 399(5)(a); Evidence Act 1977 (Qld), s 15(2)(a); Evidence Act 1906 (WA), s 8(e)(i); Evidence Act 1929 (SA), s 18(1)VI(a); Evidence Act 1910 (Tas), s 85(10)(a); and Evidence Act 1939 (NT), s 9(7)(a). 266

The Character and Credibility of the Accused • questions about matters which have already been revealed to the tribunal of fact, either through the prosecution’s case-in-chief, or by the defence. This is a result of the House of Lords’ decision in Jones v DPP (1962) that ‘tending to show’ means tending to reveal for the first time, or tending to make known. In Jones, for example, the accused admitted that he had originally given a false alibi to the police and claimed that this was because, having been ‘in trouble with the police’ before, he did not think they would believe his real alibi. Following this revelation, the prosecution were permitted to cross-examine him about the nature of this ‘trouble’. Apart from the unusual case like Jones itself, where the prejudicial material is revealed to the tribunal of fact by the defence, the only kind of evidence which will have been revealed to the tribunal of fact is evidence which was relevant to the facts in issue, and led on that basis by the prosecution during its case-in-chief. For a variety of different reasons, then, the 1898 legislation’s prohibition on questions revealing prejudicial material is effectively restricted to questions which are relevant only to the credibility of the accused. Questions which are relevant to the facts in issue are likely to be permitted – subject to the judge’s general discretion and the other exclusionary rules of evidence – for one or other of the reasons above. We now turn to the exceptions to the prohibition. These exceptions apply to three different ways in which the accused can, through the conduct of his or her defence, ‘lose’ his or her shield against prejudicial cross-examination.

15.4.3 Where the accused has claimed to be of good character The accused’s right to lead evidence of good character was discussed above. As was also discussed above, if the accused claims to have a good character then the prosecution is permitted to rebut this claim. One of the ways of rebutting the claim of good character is by cross-examining the accused about matters such as prior convictions. As to whether a claim of good character has been made, see above under the heading ‘Has the accused placed his or her character in issue?’. 15.4.3.1 The uniform evidence legislation Under the uniform evidence legislation, cross-examination about otherwise forbidden matters is permitted as a result of two separate provisions. First, s 110(2) and (3) allow the prosecution to adduce evidence to prove that the accused is not a person of good character if evidence has been adduced to prove that he or she is. The prosecution can adduce this evidence through the cross-examination of the accused, but only with the leave of the court: s 112. Secondly, s 104(4)(a) permits the court to grant leave to allow crossexamination relevant only to credibility if ‘evidence has been adduced by the

267

Principles of Evidence defendant that tends to prove that the defendant is, either generally or in a particular respect, a person of good character’. There is considerable overlap between these provisions because ss 110(2) and (3) also allow cross-examination relevant to credibility. Whichever provision is relied on, though, the leave of the court is necessary before crossexamination about the prohibited matters can commence. The matters which the court should take into consideration in determining whether or not to grant leave are discussed below in relation to cases where the accused has made imputations against the character of prosecution witnesses. 15.4.3.2 The 1898 legislation Under the 1898 legislation, the shield against prejudicial cross-examination is also lost when the accused makes a claim of good character. This is the result of the second exception which applies when the accused ‘has personally, or by his advocate, asked questions of the witnesses for the prosecution with a view to establishing his own good character, or has given evidence of his good character’.7 In Victoria and Queensland, the statutes specifically require that the leave of the court must be sought before cross-examination on the prohibited matters is permitted.8 Even in the absence of such a provision, however, the trial judge has an inherent discretion to control such crossexamination, and the High Court has indicated that the prosecutor should always seek the trial judge’s approval before commencing a cross-examination about the prohibited matters.9 The matters which the court should take into consideration in determining whether or not to grant leave are discussed below in relation to cases where the accused has made imputations against the character of prosecution witnesses.

15.4.4 Where the accused has made imputations against the character of prosecution witnesses The shield against prejudicial cross-examination will also be lost if the accused attacks the character of a witness for the prosecution.10 Sometimes this is justified on grounds which appear to be concerned with promoting accurate fact-finding, namely that the tribunal of fact ‘is entitled to know the credit of the man on whose word the witness’s character is being impugned’.11 But this __________________________________________________________________________________________________________________________________________

7

Good character: see Crimes Act 1958 (Vic), s 399(5)(b); Evidence Act 1977 (Qld), s 15(2)(c); Evidence Act 1906 (WA), s 8(e)(ii); Evidence Act 1929 (SA), s 18(1)VI(b); Evidence Act 1910 (Tas), s 85(10)(b); and Evidence Act 1939 (NT), s 9(7)(b). 8 Leave: see Crimes Act 1958 (Vic), s 399(6); and Evidence Act 1977 (Qld), s 15(3). 9 See Phillips v R (1985) 159 CLR 45. 10 See the uniform evidence legislation, s 104(4)(b); Crimes Act 1958 (Vic), s 399(5)(b); Evidence Act 1977 (Qld), s 15(2)(c); Evidence Act 1906 (WA), s 8(e)(ii); Evidence Act 1929 (SA), s 18(1)VI(ba) and (2); Evidence Act 1910 (Tas), s 85(10)(c); and Evidence Act 1939 (NT), s 9(7)(b). 11 R v Cook [1959] 2 QB 340, 348. 268

The Character and Credibility of the Accused justification is untenable. The question of whether or not a witness’s character truly is such as to make their testimony unreliable is totally unrelated to the character of the accused. If a witness’s character is such as to suggest that their testimony may be unreliable, then the fact that the accused also has a poor character can do nothing to change this. As the Australian Law Reform Commission commented in relation to prosecution witnesses: The question of their credibility is altogether unrelated to the existence of a record of misconduct on the part of the accused. The fact that the accused has been guilty of past misconduct does not in any way reduce the danger of convicting him on the testimony of witnesses whose vulnerability as to credibility is demonstrable.12

The real justification for the loss of the shield, then, lies in a ‘tit-for-tat’ principle that allows the prosecution to retaliate for any attacks on the character of its witnesses by attacking the character of the accused. The legitimacy of such a principle in the overall context of a system designed to guard against wrongful convictions is, to say the least, open to question. 15.4.4.1 Loss of the shield under the 1898 legislation The 1898 legislation as originally drafted, and as still operating in Victoria, Queensland, Western Australia, Tasmania and the Northern Territory, takes the harshest approach. In these jurisdictions, the statute typically provides that the shield is lost when ‘the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution’. The straightforward case is one where a prosecution witness has been cross-examined about their bad character or prior convictions with a view to showing that the witness is not a person who should be believed on their oath. This clearly involves the making of imputations on the character of prosecution witnesses. There are, however, two situations where it is far less clear that ‘the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution’. The first is where there is a disagreement between prosecution and defence witnesses. For example, a police officer might have testified that the accused confessed to him; the accused may deny having done so. Neither the police officer nor the accused is likely to be mistaken about such a matter. The accused’s claim that he did not confess – no matter how carefully expressed – must necessarily carry with it, therefore, the implication that the police officer is lying. As Dixon CJ pointed out in Dawson v R (1961): A detailed traverse or denial on oath by a witness of evidence which cannot readily be explained by mistake means, as a matter of accessory or natural deduction, a reflection on the witnesses contradicted ...13 __________________________________________________________________________________________________________________________________________

12 Evidence, ALRC 26, 1985, Vol 1 [821]. 13 Dawson v R (1961) 106 CLR 1, 14. 269

Principles of Evidence The conduct of a criminal defence will almost invariably involve a denial of the testimony of one or more of the prosecution witnesses. The statute could therefore operate very harshly if a mere denial of evidence amounted to the making of an imputation against the witness whose evidence is denied. The second difficult situation occurs when the version of events put forward by the defence reflects badly on one or more of the prosecution witnesses. In an assault case, for example, the accused may claim that the alleged victim was in fact the aggressor; or in a case of theft, the defence may be that one of the prosecution witnesses was in fact the thief. In the case of Phillips v R (1985), the accused was charged with rape; the only evidence capable of identifying him as the perpetrator of the rape was the fact that his fingerprint had been found on the flyscreen of the kitchen window through which the rapist had gained access to the house. He attempted to explain the presence of his fingerprint by stating that the complainant had asked him to purchase some marijuana for her; that he had come to her house to tell her that he was unable to do so; and that on receiving no reply to his knock at the door, he had gone around to the kitchen window in order to ascertain whether the complainant was at home. Similarly, in Matthews v R (1973) the accused was charged with the theft of money from his employer and claimed that he had actually received the money as part of a ‘tax dodge’ being perpetrated by his employer. The answers which the courts have given to the question of whether these two situations involve the making of imputations cannot be justified purely by reference to the words of the statute. Instead they reflect a desire to mitigate the harshness which could be caused by taking the words absolutely literally, while avoiding any outright judicial amendment of them. The answers are as follows: • A mere denial of the facts to which a prosecution witness has testified, no matter how emphatic the denial, and even if accompanied by statements to the effect that the witness must be lying, does not amount to an imputation against the character of that witness: see Curwood v R (1944) and Selvey v DPP (1972). • A possible exception to this general rule, albeit one which is of less practical significance since the advent of statutory recording provisions, arises in cases where the accused denies having made a confession attributed to him by police witnesses. If the accused’s denial necessarily implies that the police have deliberately fabricated the confession then it would seem that an imputation has been made: see Dawson v R (1961) and R v Britzman (1983). • If the accused claims to have been the victim of police brutality, or other impropriety, or that his or her confession was obtained by some improper means, then an imputation has been made: see R v Wright (1910). • Words such as ‘unnecessarily’ or ‘unjustifiably’ cannot be read into the statute. This means that a defence which reflects badly on a prosecution 270

The Character and Credibility of the Accused witness – such as those in Phillips v R (1985) and Matthews v R (1973) above – does indeed involve the making of imputations against the character of prosecution witnesses. • An apparent exception to this rule arises in cases of rape, where the accused can safely allege that the complainant consented to, or herself committed, acts which might be thought indecent by the tribunal of fact: see R v Turner (1944). 15.4.4.2 Loss of the shield in South Australia In South Australia, the 1898 legislation has been reformed so that the second, third and fourth of the above propositions are no longer true. The fourth proposition is reversed by virtue of the fact that in South Australia, not only must the ‘nature or conduct of the defence ... involve imputations on the character’ of prosecution witnesses; but it must also be the case that ‘the imputations are not such as would necessarily arise from a proper presentation of the defence’.14 The second and third propositions are reversed because the shield is not lost if the imputations arise from: ... evidence of the conduct of the prosecutor or witness– (a) in the event or circumstances on which the charge is based; (b) in the investigation of those events or circumstances, or in assembling evidence in support of the charge; or (c) in the course of the trial, or proceedings preliminary to the trial.15

Paragraph (a) confirms that the accused can safely run a defence based on a version of events which reflects badly on a prosecution witness; para (b) means that the accused can, with safety, both deny confessing and allege police impropriety; para (c) means that the defence can safely assert that a witness’s testimony is deliberately untruthful. 15.4.4.3 Loss of the shield under the uniform evidence legislation The equivalent provisions in the uniform evidence legislation also avoid the harshness of the 1898 legislation, although they do so in a slightly different way from the South Australian legislation above. Section 104(4)(b) provides that leave for cross-examination relevant only to credibility can be granted if: ... evidence adduced by the defendant has been admitted that tends to prove that a witness called by the prosecutor has a tendency to be untruthful, and that is relevant solely or mainly to the witness’s credibility.

The meaning of this paragraph is qualified by s 104(5), which provides that: A reference in para 4(b) to evidence does not include a reference to evidence of conduct in relation to: __________________________________________________________________________________________________________________________________________

14 Evidence Act 1929 (SA), s 18(2)(b). 15 Ibid, s 18(3). 271

Principles of Evidence (a) the events in relation to which the defendant is being prosecuted; or (b) the investigation of the offence for which the defendant is being prosecuted.

It is arguable that sub-section (5) is unnecessary, because evidence about the matters in paras (a) and (b) will seldom be ‘relevant solely or mainly to the witness’s credibility’. That said, sub-section (5) makes certain that the second, third and fourth propositions, listed in the previous section but one, do not apply in proceedings governed by the uniform evidence legislation. The effect of s 104(4)(b) and (5), then, is that the accused’s shield against prejudicial cross-examination will only be lost if: • evidence has been adduced by the defence that tends to prove that a prosecution witness has a tendency to be untruthful; • that evidence is relevant solely or mainly to the witness’s credibility; and • the evidence does not include a reference to evidence of conduct in relation to the events in relation to which the accused is being prosecuted or the investigation of the offence for which the defendant is being prosecuted. It is important to note that the evidence must actually have been adduced; if counsel has merely asked a question designed to suggest that a witness has a tendency to be untruthful and the suggestion has been rejected, then no evidence has been adduced. If, however, the witness has accepted the suggestion, or if the cross-examiner has been permitted to lead evidence to prove the truth of the suggestion (in accordance with the rules discussed in the previous chapter under the heading ‘Rebutting false denials’), then evidence of the tendency to be untruthful has been adduced. 15.4.4.4 What is the purpose of the cross-examination? Under the 1898 legislation, the retaliatory cross-examination is only permitted for the purpose of allowing the jury properly to assess the credibility of the accused as a witness: that is, it goes to credit rather than to issue, and the jury should be so directed: see Donnini v R (1972) and R v Beech (1978). The position would appear to be the same under the uniform evidence legislation, given that s 104(4)(b) is an exception to the general prohibition against crossexamination which is relevant only to the accused’s credibility as a witness. The fact that the cross-examination is allowed for the purposes of impugning the accused’s credibility means that any questions the prosecutor wishes to ask must in fact be relevant to the credibility of the accused. In Maxwell v DPP (1935), for example, it was held that the fact that the accused had been acquitted of an earlier charge did not reflect adversely on the accused’s credit in any way; similarly, in Stirland v DPP (1944), the fact that the accused had been suspected by his previous employers of committing a crime similar to that charged was held to be irrelevant to his credibility as a witness.

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The Character and Credibility of the Accused 15.4.4.5 The court’s discretion Under the uniform evidence legislation, and in Victoria and Queensland, the statutes specifically require that the leave of the court must be sought before cross-examination on the prohibited matters is permitted.16 Even in the absence of such a provision, however, the trial judge has an inherent discretion to control such cross-examination, and the High Court has indicated that the prosecutor should first seek the trial judge’s approval before commencing a cross-examination about the prohibited matters: see Phillips v R (1985). As noted above, the position is the same for cases where the accused has lost his or her shield by adducing evidence of his or her good character. Under the uniform evidence legislation, s 192 applies generally to the granting of leave and sets out various factors which the court must take into account in determining how to exercise its discretion. In the present context, the only factors which are likely to be of any significance are those which require the court to take into account ‘fairness’ to the parties. Fairness to the parties is also the primary consideration in relation to the granting of leave under the 1898 legislation. The High Court’s decision in Phillips v R (1985), in particular the judgment of Deane J, suggests that the following factors should be taken into account in determining what is fair: • The extent and nature of the damage to the prosecution case caused by the imputations. This will depend on the content of the imputations and the importance of the evidence of the witness against whom the imputations were made. The greater the damage to the prosecution case, the stronger the argument that the prosecution should be permitted to ‘retaliate’ with an attack on the character of the accused. This factor is obviously only relevant in cases where imputations have been made, as opposed to cases where the accused has claimed to have a good character. • The relationship between the evidence of the witness against whom the imputations were made and the evidence of the accused. This will depend on the issues at the trial. If the evidence of the witness in question is in conflict with the evidence of the accused, and the tribunal of fact will have to choose between the two, then arguably the tribunal of fact should know the character of them both. Otherwise they might be left under the misleading impression that the choice is between a witness of bad character and a witness of unblemished character. This factor is also obviously only relevant in cases where imputations have been made. • The circumstances in which the imputations came to be made. Were the imputations made gratuitously; or were they a necessary part of the accused’s defence? If the imputations were a necessary part of the defence then this weighs against the granting of leave. Like the first two factors, __________________________________________________________________________________________________________________________________________

16 See the uniform evidence legislation, s 104(2) and (4); Crimes Act 1958 (Vic), s 399(6); and Evidence Act 1977 (Qld), s 15(3). 273

Principles of Evidence this factor is also only relevant in cases where imputations have been made. It is also worth noting that in South Australia and under the uniform evidence legislation, for the reasons discussed above, the shield will not actually have been lost if the imputations were a necessary part of the defence. • The risk of prejudice to the accused. This risk will be particularly great where the questions suggest a propensity to commit the very crime charged; that is, in cases where the accused is being asked about prior criminal conduct, whether or not resulting in conviction, which is of the same type as that charged. In Phillips the majority (with Deane J delivering a powerful dissent) held that the trial judge had properly exercised his discretion in granting the prosecution leave to cross-examine the accused about convictions for offences including breaking and entering.

15.5

Joint trials

A joint trial is a trial in which two or more persons charged in relation to the same events are tried together. In such trials two fundamental principles of fairness often come into conflict: these are the right of a person accused of a crime to a trial free of prejudice; and the right of a person accused of a crime to defend the charges against them by all legitimate means. The conflict arises when one accused wishes to defend him or herself by leading evidence which is prejudicial to his or her co-accused. The most obvious method of resolving the conflict between these two aspects of the right to a fair trial would be to order a separate trial for each accused, because then the one accused could introduce the prejudicial evidence without prejudicing his or her co-accused. The courts are, however, generally reluctant to adopt this solution. The reluctance stems in part from the fact that it is a more efficient use of resources to try all the accused together. It also stems from the belief that the jury are more likely to arrive at a true verdict if they hear all the competing versions of events at once. Another fear is that if the accused are not tried together they will be able to exculpate themselves by telling stories which only their coaccused could contradict; that is, they will all be able to blame each other, and might all be acquitted. As the separate trials solution to the conflict is generally avoided, the conflict must instead be resolved by giving priority to one of the principles at the expense of the other. If each accused is protected from the introduction of prejudicial material by their co-accused, then one of the co-accused may be denied a chance of acquittal which would otherwise have been open. If, on the other hand, each accused is allowed to defend the charges by introducing material prejudicial to their co-accused, then one of the co-accused may be convicted for the wrong reasons and may also lose a chance of acquittal which

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The Character and Credibility of the Accused would otherwise have been open. The law has, however, adopted a general preference for the second of these solutions. This is reflected in the following rules: • tendency and coincidence evidence relating to an accused is more readily admitted when led by a co-accused than when led by the prosecution: see Chapter 12: Tendency and Coincidence Evidence; • an accused person is entitled to lead expert opinion evidence relating to the character of his or her co-accused: see below under the heading ‘The co-accused’s character’; and • if the accused gives evidence against his or her co-accused, then counsel for the co-accused is entitled to cross-examine the accused about certain otherwise prohibited matters: see below under the heading ‘Crossexamination by the co-accused’.

15.5.1 The co-accused’s character Where two accused persons are jointly tried together, each may attempt to lay the blame for the offence at the other’s feet. Sometimes, this might involve one accused leading expert opinion evidence about his or her co-accused’s character with a view to showing that the co-accused was, because of that character, more likely to have committed the crime charged. An example of this kind of evidence is provided by the case of Lowery and King v R (1974), which was discussed in Chapter 12: Tendency and Coincidence Evidence. The admissibility of such evidence at common law is preserved under the uniform evidence legislation by virtue of s 111(1), which provides that: The hearsay rule and the tendency rule do not apply to evidence of a defendant’s character if: (a) the evidence is evidence of an opinion about the defendant adduced by another defendant; and (b) the person whose opinion it is has specialised knowledge based on the person’s study training or experience; and (c) the opinion is wholly or substantially based on that knowledge.

If such evidence is admitted, then s 111(2) permits the defendant against whom the evidence was led to prove that the ‘evidence should not be accepted’. Rebuttal is, in other words, permitted.

15.5.2 Cross-examination by the co-accused The prohibition against prejudicial cross-examination also applies in joint trials in respect of the cross-examination of one accused by counsel for his or her co-accused. The scope of the prohibition is the same as that which applies in respect of cross-examination by the prosecution: see above under the heading ‘Cross-examining the accused’. However, an accused who gives 275

Principles of Evidence evidence against his or her co-accused loses his or her shield against prejudicial cross-examination in respect of that co-accused. Under the 1898 legislation this is due to the final exception to the prohibition, which applies when the accused ‘has given evidence against any other person charged with the same offence’.17 Similarly, s 104(6) of the uniform evidence legislation provides that: Leave is not to be given for cross-examination by another defendant unless: (a) the evidence that the defendant to be cross-examined has given includes evidence adverse to the defendant seeking leave to cross-examine; and (b) that evidence has been admitted.

As this section makes clear, the leave of the court is required before counsel for the co-accused is permitted to cross-examine the accused about any of the prohibited matters. In contrast, none of the statutes based on the 1898 legislation impose a requirement of leave, although the High Court has indicated that counsel should at least check with the court that the shield has indeed been lost: see Matusevich v R (1977). This difference aside, there are two further questions which arise in relation to both the uniform evidence legislation and the 1898 legislation. 15.5.2.1 Who is a co-accused? In its original form, the 1898 legislation refers to situations where the accused ‘has given evidence against any other person charged with the same offence’. Although the intention of the legislature was no doubt that the exception should apply whenever two persons were tried together, this version of the exception actually operates more narrowly. In Commissioner of Police for the Metropolis v Hills (1978), the House of Lords held that the exception only applies when the offences with which the two persons are charged are the same in all material respects. In Hills, for example, each of the two accused, Hills and Ledwith, were charged with causing the death of a pedestrian by dangerous driving. This was not the ‘same offence’, because the dangerous driving with which each was charged was different: each had been driving their own car. So when Hills attempted to place the blame for the accident on Ledwith, the House of Lords held that counsel for Ledwith should not have been allowed to cross-examine Hills about his several prior convictions for driving-related offences. This problem with the legislation has been remedied in England, Queensland and Tasmania, by substituting the words ‘any person jointly charged with him in the same proceedings’ for the italicised words above. In Victoria, Western Australia, South Australia and the Northern Territory, however, the legislation still applies in its unamended form. The wording of __________________________________________________________________________________________________________________________________________

17 See Crimes Act 1958 (Vic), s 399(5)(c); Evidence Act 1977 (Qld), s 15(2)(d); Evidence Act 1906 (WA), s 8(e)(iii); Evidence Act 1929 (SA), s 18(1)VI(c); Evidence Act 1910 (Tas), s 85(10)(d); and Evidence Act 1939 (NT), s 9(7)(c). 276

The Character and Credibility of the Accused s 104(6) of the uniform evidence legislation also avoids the problem, with its reference to ‘another defendant’: ‘another defendant’ is simply someone being tried in the same proceedings as the defendant to be cross-examined, regardless of whether or not the two defendants are charged with the same offence. 15.5.2.2 What is ‘evidence against’ or ‘adverse’ evidence? Under the 1898 legislation the shield is lost when the accused gives ‘evidence against’ the co-accused. Under the uniform evidence legislation, the shield is lost when the accused gives ‘evidence adverse’ to the co-accused. Given the way in which the phrase ‘evidence against’ has been interpreted by the courts, there does not appear to be any difference between these two phrases. That being the case, decisions interpreting the 1898 legislation should continue to provide some guidance to the likely interpretation of s 104(6) of the uniform evidence legislation: see, in particular, Murdoch v Taylor (1965) and R v Varley (1982). These cases can be cited as authority for the following general propositions: • The accused’s evidence is ‘against’ (and presumably ‘adverse to’) the coaccused if it either supports the prosecution case in a material respect or undermines the co-accused’s defence. An accused who, for example, testifies that there was a joint plan to commit a crime but that he or she was not part of it therefore gives evidence against a co-accused who denies the existence of any such plan, because such testimony clearly supports the prosecution case: see R v Hatton (1976). • Whether the accused’s evidence has this effect must be decided objectively, without regard to the accused’s intentions or attitudes towards the coaccused. It therefore makes no difference whether the evidence was given with relish during examination-in-chief or reluctantly during crossexamination. • If it is argued that the co-accused’s defence has been undermined, then it must have been clearly undermined. Mere inconvenience to, or inconsistency with, the co-accused’s defence is not sufficient. • A mere denial of participation will only amount to ‘evidence against’ if acceptance of the denial would inevitably lead to the conclusion that the co-accused must be guilty. In R v Davis (1975), for example, an object was stolen in circumstances in which it must have been stolen by one accused, or by the other accused or by both accused acting together. In such circumstances, the accused’s denial of guilt was clearly adverse to his coaccused. • Where one accused gives a version of events which is directly contradicted by his or her co-accused, then the contradiction may count as ‘evidence against’.

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Principles of Evidence

15.6

Summary

15.6.1 Evidence of the accused’s good character In criminal proceedings: • the accused is entitled to adduce evidence of good character on the basis that his or her good character makes it less likely that he or she committed the crime charged; • at common law, however – in theory if not in practice – good character evidence is restricted to evidence of the accused’s reputation; • under the uniform evidence legislation, on the other hand, there are no such restrictions on the form which good character evidence may take.

15.6.2 Rebutting a claim of good character Where good character evidence has been adduced, the prosecution are entitled to rebut the claim by showing that the accused does not have the character he or she claims: • such rebuttal is only permitted if the accused has indeed placed his or her character in issue; • at common law, the accused cannot place part only of his or her character in issue: if the accused claims to have a good character in a particular respect, this claim may be rebutted by evidence relating to another aspect of the accused’s character; • under the uniform evidence legislation, on the other hand, the accused can place part only of his or her character in issue: if the accused claims to have a good character in a particular respect then this claim can only be rebutted by evidence relating to that aspect of the accused’s character; • at common law, the effect of evidence of bad character led to rebut a claim of good character is purely negative; that is, it does not make more likely the guilt of the accused; • under the uniform evidence legislation, on the other hand, bad character evidence led to rebut a claim of good character may be used for this purpose.

15.6.3 Cross-examining the accused There are special rules governing the cross-examination of the accused on matters relevant only to credibility in both common law and uniform evidence legislation jurisdictions: • in common law jurisdictions, such cross-examination is governed by legislation based on the English Criminal Evidence Act 1898;

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The Character and Credibility of the Accused • this legislation typically prohibits potentially prejudicial questions; specifically, those which tend to show that the accused has committed, been convicted of or been charged with any other offence, or which tend to show that the accused is of bad character; • the uniform evidence legislation, on the other hand, places a general prohibition on questions relevant only to the accused’s credibility, a prohibition which is subject to exceptions for cross-examination about bias, about capacity or opportunity for observation and recollection, or about prior inconsistent statements; • both at common law and under the uniform evidence legislation, however, cross-examination by the prosecution on the prohibited matters is permitted (subject to the leave of the court) if the accused has either put his or her character in issue, or has made imputations against the character of a prosecution witness (under the uniform evidence legislation, has adduced evidence to show that the witness has a tendency to be untruthful); • in joint trials, cross-examination by a co-accused on the prohibited matters is permitted if the accused has given evidence adverse to the co-accused.

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Principles of Evidence

Cross-examination of accused: 1898 legislation Would the question tend to show that the accused has committed, been convicted of, or been charged with any other offence, or is of bad character?

No

Yes Has this fact already been revealed to the jury?

Yes

THE QUESTION CAN BE ASKED

No Is the question relevant to the facts in issue, as opposed to the credibility of the accused?

Yes

No Yes

Has the accused placed his or her character in issue? No Has the accused made imputations against the character of prosecution witnesses?

Yes

THE QUESTION CAN BE ASKED WITH THE LEAVE OF THE COURT

No Has the accused given evidence against a co-accused? No THE QUESTION CANNOT BE ASKED

280

Yes

THE QUESTION CAN BE ASKED BY COUNSEL FOR THE CO-ACCUSED

The Character and Credibility of the Accused

Cross-examination of accused: uniform evidence legislation

No

Is the question relevant only to the accused’s credibility? Yes Does the question relate to one of the permitted areas, ie: • bias and motive to be untruthful; • capacity and opportunity for accurate perception and recollection; • the making of a prior inconsistent statement?

Yes

THE QUESTION CAN BE ASKED

No Has the defence led evidence to prove that the accused is of good character?

Yes

No Has the defence adduced evidence to show that a prosecution witness has a tendency to be untruthful?

Yes

THE QUESTION CAN BE ASKED WITH THE LEAVE OF THE COURT

No Yes

Has the accused given evidence adverse to another defendant? No THE QUESTION CANNOT BE ASKED

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THE QUESTION CAN BE ASKED BY COUNSEL FOR THE DEFENDANT WITH THE LEAVE OF THE COURT

CHAPTER 16

IDENTIFICATION EVIDENCE

16.1

Introduction

16.1.1 Overview In many criminal proceedings, there is no doubt that a crime was committed. In such cases, the chief or only issue will be one of identification: was the accused the person who committed the crime? There are numerous methods of identifying the accused as the perpetrator of a crime; this chapter, however, is only concerned with one of them: evidence to the effect that the accused is the same person as a person perceived by the witness, either in the act of committing the crime charged, or in circumstances from which it can be inferred that they are the person who committed the crime charged. This is what is generally meant by ‘identification’ evidence. The chapter first defines identification evidence, and then discusses the reasons why it is regarded as a potentially dangerous form of evidence. It then examines the advantages and disadvantages of each of the main types of identification evidence, before turning to a discussion of the admissibility of such evidence, both at common law and under the uniform evidence legislation. It is worth noting that the rules discussed in this chapter only apply in criminal proceedings to identification evidence led by the prosecution: see, for example, s 113 of the uniform evidence legislation. Moreover, the chapter is only concerned with the identification of persons, not with the identification of objects or handwriting or anything else. This is because no special rules apply to such evidence.

16.1.2 What is identification evidence? Although the approaches of the common law and the uniform evidence legislation to identification evidence are different, the scope of the different rules is the same, ie, identification evidence at common law is the same as identification evidence under the uniform evidence legislation. The following definition, taken from the dictionary section of the uniform evidence legislation, can also be used, therefore, to set the scope of the common law rules dealing with identification evidence: Identification evidence means evidence that is: (a) an assertion by a person to the effect that a defendant was, or resembles (visually, aurally or otherwise) a person who was, present at or near a place where: 283

Principles of Evidence (i) the offence for which the defendant is being prosecuted was committed; or (ii) an act connected to that offence was done; at or about the time at which the offence was committed or the act was done, being an assertion that is based wholly or partly on what the person making the assertion saw, heard or otherwise perceived at that place and time; or (b) a report (whether oral or in writing) of such an assertion.

In accordance with this definition, if a witness merely describes the perpetrator and leaves it for the jury to compare this description with the accused and to decide for themselves whether they are one and the same, then this is not identification evidence: see R v Benz (1989). For the same reason, the presentation of photographs or video footage of the crime being committed (as taken by, for example, a security camera) is not identification evidence if it is left to the jury to draw the inference that the person shown in the photograph or video footage is the accused. It is only identification evidence when the witness actually ‘identifies’ the accused as the perpetrator. There are, however, several different methods of identifying the accused as the perpetrator of a crime: • photographic identification: where the accused is selected by the witness from a set of photographs shown to the witness by the police; • identification parades: where the accused is identified by the witness at an identification parade conducted by the police; • single suspect identification: where the witness identified the accused as the perpetrator in a situation where the accused was the only suspect presented; and • voice identification: where the accused is identified by means of their voice, as opposed to their appearance; and • identification by means of circumstantial evidence, such as the matching of fingerprints, DNA samples, or trace materials found at the scene of the crime with those taken from the accused. The focus in this chapter, however, is on the three visual forms of identification evidence. Although there have been several cases dealing with the admissibility of voice identification evidence, the law can not yet be regarded as settled: see, inter alia, R v Smith (1987), R v Harris (No 3) (1990) and Bulejcik v R (1996). A tentative view might be that a trial judge’s approach to voice identification evidence should follow, as closely as possible, the approach which should be taken to visual identification evidence. This is, not, however the approach of the uniform evidence legislation, which – notwithstanding the breadth of the definition of identification evidence extracted above – only imposes its new exclusionary regime on visual

284

Identification Evidence identification evidence. Voice identification evidence is admissible subject only to the judicial discretions discussed in Chapter 18. ‘Circumstantial’ identification evidence is clearly not subject to the same dangers as visual or voice identification evidence, and is admissible subject to the requirement of relevance and, frequently, the rules regulating the admission of expert opinion evidence. Some jurisdictions also have statutory regimes regulating the collection of such evidence from the accused, and failure to follow these statutory regimes may have implications for the admissibility of any evidence gathered: see, for example, some of the legislation referred to in Chapter 18: Discretions to Exclude Evidence, under the heading ‘When is evidence improperly or illegally obtained?’.

16.1.3 The dangers of identification evidence Although identification evidence seems fairly innocuous, it is in fact a fertile source of injustice. There are several reasons for this. The most important is the surprising complexity of the process of identification. As Evatt and McTiernan JJ pointed out in Craig v R (1933): An honest witness who says ‘The prisoner is the man who drove the car’, whilst appearing to affirm a simple, clear and impressive proposition, is really asserting: (1) that he observed the driver, (2) that the observation became impressed upon his mind, (3) that he still retains the original impression, (4) that such impression has not been affected, altered, or replaced by published portraits of the prisoner, and (5) that the resemblance between the original impression and the prisoner is sufficient to base a judgment, not of resemblance, but of identity.1

Each of these five assertions could be mistaken, and for reasons that may not be readily apparent, even to the witness. The original observation may, for example, have been made in poor conditions: the witness might only have had a momentary glimpse of the person’s face, the face might have been poorly lit, the person might have been at a great distance from the witness, and the witness may not have been paying proper attention. Indeed, unless it was immediately obvious that the person seen by the witness was the perpetrator of a crime, there may have been no particular reason for the witness to have retained the impression of that observation. The significance of what the witness saw may only have become apparent later, after the impression had already faded.

__________________________________________________________________________________________________________________________________________

1

Craig v R (1933) 49 CLR 429, 446.

285

Principles of Evidence The third assertion is obviously subject to the general vagaries of memory, while the fourth assertion carries with it the risk that, unbeknown to the witness, the original impression has been replaced by an image of the accused seen during the investigative process. Moreover, a witness may be willing to assert identity when in truth they can only be sure of a resemblance. The process is, of course, simpler when the witness knows the person seen: in such cases the identification (or recognition) is immediate; but if that initial identification is mistaken, it may be extremely difficult to shake the witness because the original impression is likely to have been overlaid by the features of the accused. For these reasons, the final assertion of identification is often wrong. This has been established by numerous miscarriages of justice involving mistaken identification evidence and confirmed by a myriad of psychological studies. Despite the well-proven possibility of mistake, however, identification witnesses are often reluctant to concede any doubt, are extremely difficult to shake in cross-examination, and so may be given more credence by the tribunal of fact than they truly deserve.

16.2

The main methods of identification

There are several methods the police can adopt to get a witness to identify the accused as the perpetrator of an offence. Different methods may be appropriate for different stages of the investigation. Early in an investigation the police may still be attempting to single out a suspect. Later on, they may have identified a suspect and actually have him or her in custody; at this stage the primary purpose of the identification will be to obtain evidence for use in court, rather than to confirm that the right person has been arrested. Methods appropriate to the identification of a suspect may be inappropriate when the aim is to obtain evidence for presentation in court.

16.2.1 Picture identification Picture identification involves the police presenting a witness with a selection of pictures (usually photographs) of possible offenders. This method of identification is well suited to the early stages of an investigation, when the police may not yet have identified a suspect. In order to identify a possible suspect, the police may show a witness photographs of persons known to have a propensity to commit offences such as that under investigation. If the witness is unable to identify the perpetrator, the process may at least allow the police to eliminate several possible suspects. If the witness does identify one of the photographs, however, then the police may then focus their investigative efforts on that person in order to determine whether or not he or she was the perpetrator of the offence. The use of picture identification for this purpose is unavoidable.

286

Identification Evidence Its use for forensic purposes, however, is another matter. There is, of course, the increased prospect of a mistaken identification, owing to the fact that ‘photographic representations differ from nature: their two-dimensional and static quality, the fact that they are often in black and white and the clear and well-lit picture of the subject which they usually provide’.2 Moreover, as Stephen J, pointed out in Alexander v R (1981): Unlike the case of an identification parade, an accused whose identity as the offender is sought to be proved at his trial by evidence of previous photoidentification is likely to know nothing at first hand of the way in which the identifying witness earlier identified his photograph as that of the offender. He must rely upon cross-examination of prosecution witnesses for knowledge of the conditions of identification and of what safeguards were taken against error on the part of the identifying witness. Again, by what may be called the ‘rogues’ gallery’ effect, evidence that the police had in their possession and showed to the identifying witness photographs of the accused may often strongly suggest to a jury that the accused has a criminal record, perhaps even a propensity to commit a crime of the kind with which he is charged. Their production in evidence, or even reference to their existence, may then be highly prejudicial to an accused. Lastly, there is the ‘displacement’ effect. Having been shown a photograph, the memory of it may be more clearly retained than the memory of the original sighting of the offender and may, accordingly, displace that original memory. Any subsequent face-to-face identification, in court or in an identification parade, may, on the identifying witness’s part, in truth involve a matching of the man so identified with the remembered photograph, which has displaced in his memory his recollection of the original sighting.3

16.2.2 Identification parades At an identification parade a witness is asked whether the perpetrator is among a group of persons which includes the accused. The other participants in the parade are usually members of the public, and should have been selected on the basis that they bear some resemblance to a description of the perpetrator or to the accused. The value of the identification will clearly be undermined if the accused stands out in some way. An identification parade is regarded as the most reliable form of identification, not least because it avoids many of the dangers associated with picture identification. Although they provide the most reliable method of obtaining identification evidence, identification parades still have their pitfalls. The greatest of these is the risk that the witness will assume that the perpetrator is present in the line-up, and simply choose the person who most closely resembles him or her. This risk is obviously increased if the police give the impression that the perpetrator has been apprehended and that it is simply a __________________________________________________________________________________________________________________________________________

2 3

Alexander v R (1981) 145 CLR 395, 409 (Stephen J). Ibid. 287

Principles of Evidence matter now of the witness picking him or her out at the parade. At many identification parades, however, the witness fails to pick the accused, and as a result, is not called to testify at the trial. This obviously undermines the value of the evidence of those witnesses who do select the accused: in an extreme case, if there were nine persons in the identification parade and nine witnesses, only one of whom selected the accused, then their selection of the accused as the perpetrator might simply be attributable to the laws of chance. Moreover, the value of an identification parade will be completely undermined if the identification parade has been preceded by picture identification, because of the risk of the ‘displacement’ effect described by Stephen J in Alexander v R (1980), above. Although it is the most desirable form of identification, in the absence of a statutory provision to the contrary, a suspect cannot be compelled to participate in an identification parade: see R v Clune (1982). This does not mean, however, that a suspect has a right not to be identified. A witness may thus be placed in a position where he or she will be able to identify a suspect during the ordinary course of his or her detention, for example, in the exercise yard at the prison where the suspect is being held, or on the way to or from court: see, for example, R v Haidley and Alford (1984).

16.2.3 Single suspect identification Single suspect identification is where the witness is only presented with one suspect – whether in person, or in the form of a photograph – from which to choose. For good reason, this form of identification is regarded as the most dangerous of all. The witness is likely to have any doubt about the identity of the perpetrator resolved by the fact that the police are obviously convinced that the accused is the one. The same risk is present if the accused is first identified at trial. The accused’s very presence in the dock singles him or her out from all other persons in the courtroom, and is so highly suggestive of guilt as to make it almost certain that he or she will be identified. In both cases, the risk of mistake is so great that such evidence is of almost no probative value: see Davies and Cody v R (1937). The dangers associated with a dock identification are, however, obviously reduced if the witness has already identified the accused on a previous occasion, such as at an identification parade.

16.3

The admissibility of identification evidence

16.3.1 The basis for admitting a prior identification Before turning to the common law and the uniform evidence legislation approaches to identification evidence, I want to address an issue arising out of the fact that there are usually two distinct strands to identification evidence: the first is an in-court identification by the witness of the accused as the 288

Identification Evidence perpetrator of the offence; the second is testimony from the witness about the fact that they identified the accused as the perpetrator of the offence prior to the trial, for example at an identification parade. In examination-in-chief an identification witness might, for example, be asked questions about what it is they witnessed; then questions designed to show that the witness successfully identified someone on a prior occasion; and then questions designed to show that the person they identified was the accused. Alternatively, the witness might be asked if they can identify the perpetrator of the offence in court before being asked about the prior identification. In both cases, though, the aim of the evidence is to establish that the witness identified the accused on an occasion prior to the trial, such an identification actually being of greater probative value than their in-court identification of the accused. Testimony about the prior identification obviously raises the spectre of the hearsay rule, and a question therefore arises as to the basis for its admission. At common law, the basis for admitting evidence of the prior identification appears to vary according to the following (far from exhaustive combination of) circumstances: • If the identification witness is able to identify the accused in court, then they may also give evidence of their prior identification. In such cases, the evidence of the witness is admitted as original evidence on the basis that it ‘is relevant that the witness identified the accused on the earlier occasion, and since identification is an act of the mind, evidence of the witness as to his own state of mind on the earlier occasion is original evidence and not hearsay’.4 • If the identification witness identifies the accused in court, and testifies about the prior identification, then so may a person who witnessed the prior identification, such as a police officer present at an identification parade. We might refer to such a person as a secondary identification witness. In such cases, the evidence of the secondary witness is admitted as a prior consistent statement going to the credibility of the primary witness.5 • If the primary identification witness is unable to recall who it was that they identified as the perpetrator on a previous occasion, then they will still be permitted to testify to the fact that they did identify a person as the perpetrator of the offence, and the secondary witness will be permitted to testify to the identity of the person whom the witness identified. In such cases, the evidence of the secondary identification witness is classified as original evidence, rather than hearsay, on the grounds that the evidence is being used ‘to show that a particular photograph [or person] was __________________________________________________________________________________________________________________________________________

4 5

Alexander v R (1981) 145 CLR 395, 403–04 (Gibbs CJ). Ibid, 405 (Gibbs CJ). 289

Principles of Evidence indicated, not that it was correctly indicated, nor that the person portrayed [or picked] was the person who had committed the crime’.6 • If the primary identification witness does not testify at all, or testifies that the accused is not the perpetrator of the offence, then the conclusion that the evidence of the secondary witness is hearsay – and therefore inadmissible unless an exception applies – appears to be unavoidable. • Finally, there is conflicting authority about cases where the primary identification witness testifies but is unable to identify the accused in court, and unable to recall having made a prior identification. In Alexander v R (1981), Gibbs CJ – correctly it is submitted – argued that any evidence about the prior identification from a secondary witness would be inadmissible hearsay; Mason J, on the other hand, thought that such evidence would be admissible, although he did not state the basis for this conclusion. Under the uniform evidence legislation the basis for admitting evidence of the prior identification is slightly different. Evidence of the prior identification would not appear to be admissible as a prior consistent statement unless it falls within the terms of s 108(3), which was discussed in Chapter 14: Credibility Evidence. This suggests that evidence of the prior identification should ordinarily be regarded as hearsay. Evidence of the prior identification would, however, appear to be admissible in exception to the hearsay rule by virtue of s 66(2) of the legislation. This exception applies to previous representations made by a witness at a time when the events in question were still ‘fresh’ in the witness’s memory: see Chapter 7: Hearsay: Exceptions to the Rule. Moreover, s 66(2) appears to apply in every situation where the primary identification witness is called to testify, regardless of whether or not the witness is actually able to identify the accused in court, or able to recall having made the prior identification. The fact that the evidence satisfies the requirements of s 66 does not, of course, exempt it from satisfying the specific rules applying to identification evidence: the rules applying to hearsay evidence and identification evidence are cumulative in effect. It is to those specific rules which we now turn.

16.3.2 The common law approach to identification evidence For the reasons detailed earlier, identification evidence is regarded by the courts as an unreliable class of evidence. One response to unreliable evidence is to exclude it. Another is to require the judge to alert the jury to the unreliability of the evidence. At common law, the latter response is obligatory; the former may be taken at the judge’s discretion.

__________________________________________________________________________________________________________________________________________

6

Alexander v R (1981) 145 CLR 395, 407 (Gibbs CJ). 290

Identification Evidence 16.3.2.1 Discretionary exclusion In Alexander v R (1981), a majority of the High Court rejected the idea that there should be definite exclusionary rules regulating the admission of identification evidence. There is no doubt, however, that the various discretions available to a trial judge (as to which see Chapter 18) can and sometimes should be exercised to exclude identification evidence. The most common basis for excluding identification evidence is that the identification may be unreliable, having regard to the circumstances in which it was made. Such potential unreliability would obviously constitute grounds for holding the evidence to be more prejudicial than probative. If the identification evidence was obtained through some illegality or impropriety on the part of the police, then consideration of the public policy discretion would also be necessary. Because we are dealing with discretion rather than rule it is impossible to state with any certainty whether or not a particular item of identification evidence will be excluded; past decisions do, however, provide some guidance in identifying the kinds of situations where courts might consider exercising one of their discretions in the accused’s favour: • where a dock identification is made by a witness who has not identified the accused on a prior occasion, and who does not know the accused, the dock identification may be considered to be of such limited probative value that it should be excluded: see Davies and Cody v R (1937) and R v Gaunt (1964); • where the prior identification involved some form of single suspect identification, the prior identification will be considered to be of very limited probative value: see R v Burchielli (1981); • where an identification parade has been preceded by some other form of identification, such as picture identification or single suspect identification, the identification parade may be considered to be of very limited probative value given the possibility of ‘displacement’: see Davies and Cody v R (1937); • where the accused is identified by some means other than an identification parade (for example, photographic identification) at a stage in the investigation where an identification parade could have been used. An identification parade is clearly only possible when the police have singled out a suspect, and the suspect is willing to be placed in an identification parade: see Alexander v R (1981), R v Deering (1986) and Carusi v R (1997); • where the accused has been identified by means of a photograph and the photograph, or the fact that the police had a photograph of the accused in their possession, might suggest to the jury that the accused has a criminal record, the court may consider the admission (or even mention) of the photographs prejudicial. At the very least, it may be necessary to warn the jury that no adverse inferences should be drawn from the fact that the 291

Principles of Evidence police had a photograph of the accused in their possession; if the photographs actually show the accused in handcuffs or prison garb, however, then they should probably not be admitted into evidence: see R v Doyle (1967), Alexander v R (1981), R v Aziz (1982) and Dawson v R (1990); • where the police have prompted or encouraged the witness to pick out the accused, or have merely indicated that the perpetrator of the offence (or his or her photograph) is among those offered for selection at an identification parade or photographic line-up: see Alexander v R (1981) 145 CLR 395, 400; • where there was some other feature of the identification process which would detract from its probative value or fairness, such as the accused being the only person at an identification parade who bore any resemblance whatsoever to a description of the perpetrator, or the police failing to make any proper record of the identification process: see R v Perry (1997); and • where the powers of arrest and detention have been abused in order to conduct a de facto identification parade, by compelling the witness to go somewhere or do something other than in the ordinary course of his or her detention, such an abuse possibly calling for an exercise of the public policy discretion: see R v Clune (1982). 16.3.2.2 Judicial warning When identification evidence is admitted, the judge is under a duty to warn the jury about the dangers of acting on identification evidence. In Domican v R (1992) the High Court made the following comments about the warning requirement: Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed. The terms of the warning need not follow any particular formula. But it must be cogent and effective. It must be appropriate to the circumstances of the case. Consequently, the jury must be instructed ‘as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case’. A warning in general terms is insufficient. The attention of the jury ‘should be drawn to any weaknesses in the identification evidence’. Reference to counsel’s arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge’s office behind it. It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence.7

__________________________________________________________________________________________________________________________________________

7

Domican v R (1992) 173 CLR 555, 561–62. 292

Identification Evidence Failure to give such a warning is an all but automatic ground of appeal, with the appellate court only having the option of refusing the appeal if it is satisfied that the jury would inevitably have convicted the accused even in the absence of the identification evidence: Domican v R (1992). In tailoring the warning to suit the circumstances of the particular case, the court suggested that the judge should take into account all the following factors: • ‘the nature of the relationship between the witness and the person identified’ (the identification evidence will be obviously safer where the person identified was already known to the witness); • ‘the opportunity to observe the person subsequently identified’; • ‘the length of time between the incident and the identification’; and • ‘the nature and circumstances of the first identification’.8

16.3.3 The uniform evidence legislation The situation under the uniform evidence legislation is far more clear cut. As with the common law there is a two-pronged approach: exclusion for the most unreliable forms of identification evidence, and a judicial warning about the dangers of acting on identification evidence for that which is admitted. The warning requirement is imposed by s 116(1) which is in the following terms: If identification evidence has been admitted, the judge is to inform the jury: (a) that there is a special need for caution before accepting identification evidence; and (b) of the reasons for that need for caution, both generally and in the circumstances of the case.

A more generally applicable warning requirement is imposed by s 165(1)(b), which is discussed in Chapter 21: Corroboration and Judicial Warnings. Section 116(1) reflects the existing common law warning requirements discussed above. The only real point of possible difference from the common law warning requirement is that the uniform evidence legislation warning requirement clearly applies to all forms of identification evidence, including voice identification evidence, whereas the common law requirement may be restricted to visual identification evidence. In all other respects, the common law and the uniform evidence legislation warning requirements appear identical. For this reason, the focus in this section of the chapter will instead be on the new exclusionary rules created by the uniform evidence legislation. These exclusionary rules are restricted in their operation to two forms of identification evidence only, which the legislation refers to respectively as ‘visual identification evidence’ and ‘picture identification evidence’. In crude terms, the new rules aim to force the police to use the identification parades wherever possible. __________________________________________________________________________________________________________________________________________

8

Domican v R (1992) 173 CLR 555, 565. 293

Principles of Evidence 16.3.3.1 Visual identification evidence The first exclusionary rule, contained in s 114(2), applies to ‘visual identification evidence’. ‘Visual identification evidence’ is defined by s 114(1) as ‘identification evidence relating to an identification based wholly or partly on what a person saw but does not include picture identification evidence’, to which separate provisions apply. The definition includes both in-court identification, and evidence of a prior identification (whether given by the identifying witness themself or by a witness who witnessed the identification). Section 114(2), the exclusionary rule, provides that: Visual identification evidence adduced by the prosecutor is not admissible unless: (a) an identification parade that included the defendant was held before the identification was made; or (b) it would not have been reasonable to have held such a parade; or (c) the defendant refused to take part in such a parade; and the identification was made without the person who made it having been intentionally influenced to identify the defendant.

The basic aims of s 114(2), then, are to force the police to hold identification parades whenever it is reasonable for them to do so; and to ensure that identification parades are fair, in the sense that the police do not attempt to influence a witness to select the accused. The way s 114(2) achieves these aims is by providing that a witness will not be permitted to identify the accused in court, or to give evidence of their prior identification of the accused, or to give evidence of someone else’s prior identification of the accused, unless one of three alternative conditions are satisfied: • the primary identification witness identified the accused at a fair identification parade; or • it would not have been reasonable to have held an identification parade; or • the accused refused to take part in an identification parade. The reasonableness of not holding an identification parade is therefore a crucial question, and it is one to which the remaining subsections of s 114 are devoted. Rather than setting them out in full, their effect can be summarised as follows: • in determining the reasonableness of holding an identification parade, the court should take into account: ❍ the kind and gravity of the offence (the more serious, the less reasonable not to hold a parade): s 114(3)(a); ❍ the importance of the evidence (the more strongly the prosecution case relies on the identification evidence, the less reasonable not to hold a parade): s 114(3)(b);

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Identification Evidence the practicality of holding a parade, having regard among other things to whether the accused was prepared to co-operate in the holding of the parade (if not, then a parade might not have been practicable), and whether the identification was made at or about the time the offence was committed (if it was, then again a parade might not have been practicable): s 114(3)(c); ❍ the relationship between accused and the identifying witness (if the accused was known to the witness, then it might not be reasonable to hold a parade): s 114(3)(d); ❍ but should not take into account the availability of pictures or photographs which could be used as the basis for picture identification s 114(6); • it is not reasonable to hold a parade if the accused refuses to take part unless their lawyer (or some other person of their choosing) is present, and it was not reasonably practicable for their lawyer (or such other person) to be present at the time at which the parade was to have been conducted: s 114(5); and • it is not reasonable to hold a parade if it would have been unfair to the accused to do so (as to what might make it unfair, the legislation is silent): s 114(4). ❍

The uniform evidence legislation does not itself set out any procedures for the conduct of identification parades; where it is a Commonwealth offence which is being investigated, however, ss 3ZM, 3ZN and 3ZP of the Crimes Act 1914 (Cth) set out procedures for the conduct of identification parades. Breach of these procedures would constitute grounds for exclusion of identification evidence as illegally or improperly obtained: see Chapter 18: Discretions to Exclude Evidence. 16.3.3.2 Picture identification evidence The definition of ‘visual identification evidence’ in s 114(1) expressly excluded ‘picture identification evidence’, which is subject to its own exclusionary rule contained in s 115 of the legislation. Picture identification evidence is defined by s 115(1) as ‘identification evidence made wholly or partly by the person who made the identification examining pictures kept for the use of police officers’. The word ‘picture’ is further defined in s 115(10)(a) to include a photograph. Section 115 is therefore limited in its scope to the admissibility of evidence of prior identification, where such identification is in the form of picture identification. It applies to evidence of such an identification given both by the primary identification witness him or herself, and by a person who witnessed this identification. It does not apply, however, to an in-court identification made by a witness whose prior identification of the accused was by means of

295

Principles of Evidence picture identification. The admissibility of an in-court identification by such a witness is determined instead by s 114. The basic aim of s 115 is to avoid the possible prejudice associated with picture identification (the ‘rogues’ gallery’ effect referred to by Stephen J in Alexander v R (1981) above); and to ensure that the police carry out an identification parade, rather than rely on picture identification, once a suspect has been taken into custody. Section 115 therefore lays down the following rules for picture identification evidence adduced by the prosecution: • picture identification evidence is inadmissible if the pictures examined suggest that they are pictures of persons in custody: s 115(2); • picture identification evidence is inadmissible if, when the pictures were examined, the accused was in police custody (s 115(5)), unless either: ❍ the accused refused to take part in an identification parade: s 115(5)(a); or ❍ the accused’s appearance had changed significantly between the time when the offence was committed and the time the accused was taken into custody: s 115(5)(b); or ❍ it would not have been reasonable to have held an identification parade (as to which see s 114): s 115(5)(c) and (6); • if one of the above conditions applies, then picture identification will be admissible, provided that the picture of the accused that was examined was made after the accused was taken into custody: s 115(3); • a picture made before the accused was taken into custody can, however, be used in either of the following situations: ❍ if the accused’s appearance has changed significantly between the time when the offence was committed and the time the accused is taken into custody: s 115(4)(a); or ❍ it is not reasonably practicable to make a picture of the accused after he or she has been taken into custody: s 115(4)(b); • if picture identification is admitted, then the defence may require the judge either to inform the jury that the picture was made after the accused was taken into custody (if that be the case), or warn the jury that they should not assume that the accused has a criminal record just because the police had a picture of him or her in their possession: s 117; • finally, none of the above rules applies to picture identification evidence adduced by the prosecution to contradict or qualify picture identification evidence adduced by the defence (if, for example, a witness had identified the accused by means of pictures prior to identifying him or her at an identification parade, then the defence might wish to lead evidence of this fact to undermine the credibility of the identification parade evidence): s 115(8).

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Identification Evidence Section 115 does not actually lay down any mandatory procedures for the conduct of picture identification, although where Commonwealth offences are under investigation, the procedures set out in ss 3ZO and 3ZP of the Crimes Act 1914 (Cth) would apply. Breach of these procedures would constitute grounds for exclusion of identification evidence as illegally or improperly obtained: see Chapter 18: Discretions to Exclude Evidence. The focus on whether the accused was in police custody at the time the pictures were examined leaves a possibly unintended loophole in the provisions. If, at the time the pictures were examined, a suspect had been singled out but not yet taken into custody, then picture identification would appear to be admissible, subject only to the requirement that the pictures do not appear to be pictures of persons taken while in police custody. This would appear to be the case even if the police could quite easily have taken the accused into custody. Failure to conduct an identification parade in such circumstances might, however, constitute grounds for discretionary exclusion. 16.3.3.3 Discretionary exclusion The new uniform evidence legislation exclusionary rules do most of the work performed at common law by the discretionary exclusions. As the previous paragraph indicated, however, there may still be situations where identification evidence, although satisfying the requirements of ss 114 and 115, should nevertheless be excluded by the judge in the exercise of his or her discretion.

16.4

Summary

In criminal proceedings, at both common law and under the uniform evidence legislation, special rules apply to visual identification evidence: • these rules apply to evidence from a witness to the effect that the accused is the same person as a person perceived by the witness, either in the act of committing the crime charged, or in circumstances from which it can be inferred that they are the person who committed the crime charged; • at common law, identification evidence is prone to discretionary exclusion if the circumstances in which the witness identified the accused are such as to cast doubts on the reliability of the identification; • under the uniform evidence legislation, there are special exclusionary rules, the intended effect of which is to force the police to obtain identification evidence by means of an identification parade whenever it is practicable for them to do so; and • when identification evidence is admitted – whether at common law or under the uniform evidence legislation – the jury must be given a warning, tailored to the circumstances of the particular case, of the dangers of acting on it.

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CHAPTER 17

PRIVILEGE AND IMMUNITY

17.1

Introduction

17.1.1 Overview The law of privilege allows a person from whom information is sought to resist what would otherwise be a compulsory request for disclosure. This chapter covers the most important forms of privilege and immunity recognised at common law or under the uniform evidence legislation, namely: • legal professional privilege; • the privilege in aid of settlement; • the privilege against self-incrimination; • public interest immunity; and • privilege for confidential relationships. State legislation which recognises any of the above privileges is also covered. In some Australian jurisdictions additional privileges have been created by legislation. In Victoria, Queensland, Western Australia and Tasmania certain marital communications are privileged; and in Victoria, Tasmania and the Northern Territory, certain communications between doctor and patient are privileged.1 Section 129 of the uniform evidence legislation also contains a privilege for a judge, arbitrator or juror’s reasons for decision, while s 127 contains a privilege for ‘religious confessions’, a privilege which is also found in s 28(1) of the Evidence Act 1958 (Vic). None of these privileges has been covered.

17.1.2 Powers to compel disclosure The law of privilege gives people the right to resist what would otherwise be compulsory demands for information. Powers to make compulsory demands for information are conferred in a variety of ways, and operate in a variety of different contexts. They are not generally considered, however, to form part of the law of evidence, and so will only be discussed here very briefly. At the trial stage of both civil and criminal proceedings, witnesses can be compelled by subpoena to attend the trial in order to be examined by the parties. A subpoena which compels the attendance of a witness is called a subpoena ad __________________________________________________________________________________________________________________________________________

1

See Evidence Act 1958 (Vic), ss 27 and 28; Evidence Act 1977 (Qld), s 11; Evidence Act 1906 (WA), s 18; Evidence Act 1910 (Tas), ss 94 and 96; and Evidence Act 1939 (NT), s 12. 299

Principles of Evidence testificandum. Once a witness has been compelled to attend, and has been held to be competent, they can then be compelled to answer the questions put by the party, assuming the answers to such questions to be both relevant and admissible. Subpoenas can also be used to compel the production of relevant documents (a subpoena duces tecum). In civil proceedings, the parties are also given extensive powers to compel their opponents to disclose relevant documentary evidence through such mechanisms as discovery and inspection, and to a lesser extent, the use of interrogatories. In criminal proceedings, the pre-trial discovery processes are not nearly as well developed. A committal often acts as a de facto form of pre-trial discovery for the defence. Prosecutorial duties of fairness, such as those imposed by the rules of the various Australian bar associations, also require the prosecution to disclose to the defence all relevant material in its possession, including material which favours the defence. A failure to disclose material favourable to the defence has been relied on in several English decisions as a ground for quashing a conviction: see, for example, R v Maguire (1992) and R v Ward (1993). Freedom of information legislation has also sometimes been used as a means of gaining access to the information contained in the prosecution brief: see R v Sobh (1993). And in Victoria, s 8 of the Crimes (Criminal Trials) Act 1993, the primary aim of which is to reduce the length of criminal trials by ensuring that the real points of issue between prosecution and defence are identified before the trial, requires the prosecution to provide the defence with copies of statements by any witnesses the prosecution intends to call at trial, including expert witnesses, as well as copies of any documentary exhibits which the prosecution intends to have produced. In New South Wales, a Notice to Practitioners issued by the Supreme Court in March 1994 providing for standardised pre-trial directions for criminal matters listed for callover, is similar in aim to the Victorian legislation, but with one important difference: the directions are not compulsory. Pre-trial discovery for the prosecution in criminal proceedings is even more patchy. This no doubt reflects the traditional view that the accused is under no obligation (other than to the extent required by the rule in Browne v Dunn, discussed in Chapter 2: Witnesses) to disclose even the nature of his or her defence – let alone the evidence on which it is based – until the close of the prosecution case at the trial itself. It is therefore unusual for the defence to lead any evidence at a committal. While this approach is consistent with the right to silence, the presumption of innocence and the allocation of the burden of proof in a criminal trial, it is obviously of some inconvenience to the prosecution which might not know – until after the close of the prosecution case – which aspects of the case will be contested. Most Australian jurisdictions do now require a degree of pre-trial disclosure where the defence is one of alibi. And in Victoria, s 11 of the Crimes (Criminal Trials) Act 1993 requires the defence to indicate, before trial, ‘the facts and inferences

300

Privilege and Immunity contained in the prosecution case statement with which issue is taken’. Expert witness statements aside, however, the defence is under no obligation to disclose the actual evidence upon which it will rely. Powers to compel disclosure also exist outside the context of legal proceedings, either taking the form of a power to compel a person to answer questions, or a power to compel a person to produce material – usually documents – in his or her possession. Such powers are frequently conferred by statute on government agencies and authorities such as the Australian Competition and Consumer Commission, the Australian Securities Commission and the National Crime Authority. The law of privilege, in particular legal professional privilege and the privilege against selfincrimination, can be claimed in these contexts, provided that the privileges have not been either expressly or impliedly abrogated by the statute which conferred the power of compulsory disclosure. Although there is a great deal of case law on this topic, the operation of the law of privilege in these contexts is beyond the scope of a book concerned with the rules of evidence applicable in Australian courts of law.

17.1.3 The public policy basis of the law of privilege It is against this backdrop of powers to compel the disclosure of information described above that the law of privilege operates. The law of privilege comprises a number of public policy based rules which entitle a person to resist what would otherwise be a compulsory demand for disclosure. The end result of a successful claim of privilege, then, is to deprive a court of relevant, and perhaps highly probative, evidence. The law of privilege is therefore a derogation from the general principle that all relevant evidence should be admitted. The existence and scope of a rule of privilege reflects a decision by the courts or by a legislature that, in respect of the kind of information sought, the public interest which favours non-disclosure outweighs the public interest in ensuring that all relevant information is available to the courts. This means that critical evaluation of the law of privilege always revolves around the question of whether the public policy on which the particular privilege is based really does outweigh the public interest in ensuring that a court considers all relevant information before reaching a conclusion on the facts. Failure to take into account relevant information obviously creates a risk that the wrong conclusion will be reached. The public policy reason for allowing relevant information to be withheld therefore needs to be a compelling one.

17.1.4 Effect of a claim of privilege A rule of privilege confers on a person a right to insist that relevant information be withheld from a court. It does not render such information inadmissible. If the privilege is not claimed, then the evidence can be adduced (although under s 132 of the uniform evidence legislation, the court is under 301

Principles of Evidence an obligation to ensure that a witness or party is aware of its rights to claim a privilege). If the privilege is claimed, then it is up to the court to determine whether or not the claim is valid. If the evidence is given before the privilege can be claimed – as, for example, where a witness blurts out an answer before he or she can be stopped – then, under the uniform evidence legislation at least, it is, by virtue of s 134, inadmissible and must be disregarded by the tribunal of fact. A successful claim of privilege does not, however, prevent a party from attempting to prove a particular fact; it merely prevents its proof by means of the information in respect of which the privilege is claimed. But even this is not entirely accurate. At common law a successful claim of privilege merely renders the information immune from compulsory disclosure. If secondary evidence is available – as, for example, where a party has somehow obtained a copy of a legally privileged document – then the law of privilege does not prevent them from adducing this evidence.2 The only method of preventing the use of the information may be to seek a remedy in equity.3 The position is different under the uniform evidence legislation. The Australian Law Reform Committee took the view that the protection provided by privilege ‘should not be lost if evidence of the communication or material was obtained accidentally or illegally’.4 Privileged information will only be admissible under the uniform evidence legislation if the privilege has been ‘waived’. Issues of waiver most commonly arise in relation to legal professional privilege, and will therefore be discussed as part of the treatment of that privilege.

17.2

Legal professional privilege

In practical terms, the most important privilege is undoubtedly legal professional privilege. Legal professional privilege is a common law creation. The privilege is actually that of the client, rather than the lawyer; no doubt it is for this reason that the uniform evidence legislation renames the privilege ‘client legal privilege’. Sections 118 and 119 of the legislation thus begin with the words ‘Evidence is not to be adduced if, on objection by a client ... ’. The privilege is essentially the same at both common law and under the uniform evidence legislation, although there are some important differences which will be discussed below. Although legal professional privilege operates as a rule of evidence, it also operates outside the context of judicial proceedings as a general right to protect confidential communications from what would otherwise be compulsory demands for disclosure. The uniform evidence legislation only operates in the trial context, however; pre-trial and non-curial __________________________________________________________________________________________________________________________________________

2 3 4

See Calcraft v Guest [1898] 1 QB 759. See, for example, Ashburton v Pape [1913] 2 Ch 469. Evidence, ALRC 26, 1985, Vol 1 [885]. 302

Privilege and Immunity contexts are still largely governed by the common law: see Trade Practices Commission v Port Adelaide Wool Co Pty Ltd (1995).

17.2.1 Justification for the privilege The privilege represents the law’s solution to a conflict between two competing aims, both relating to the efficient administration of justice. The first is to ensure that all parties and the court have available to them all relevant material. This would both promote settlement, and if the matter did proceed to trial, ensure that the court did not arrive at the wrong result because of the fact that it had been deprived of relevant information. The second aim is to ensure that a lawyer is able to give his or her client the best and most accurate legal advice possible; this aim will be achieved if the client feels free to confide in his or her lawyer, without any fear that if he or she discloses anything unfavourable to his or her case then this might be passed on to his or her opponent. Recognition of the privilege gives paramountcy to this second aim. As Mason and Wilson JJ commented in Waterford v Commonwealth (1987): Legal professional privilege is the product of a balancing exercise between competing public interests whereby ... the public interest in ‘the perfect administration of justice’ is accorded paramountcy over the public interest that requires, in the interests of a fair trial, the admission in evidence of all relevant documentary evidence.5

The basic justification for allowing the privilege is, therefore: ... the public interest in facilitating the application of the rule of law. Administration of the law is not the function of the courts alone. The law is administered more frequently and more directly by legal advisers than it is by judges. Legal professional privilege ensures that the law’s writ can run effectively whenever a legal problem arises or a person seeks to chart a course of conduct in conformity with the law.6

Legal professional privilege has also, however, been seen by some judges as associated with the maintenance of fundamental human rights, with Deane J, for example, commenting that the privilege: ... plays an essential role in protecting and preserving the rights, dignity and freedom of the ordinary citizen – particularly the weak, the unintelligent and the ill-informed citizen – under the law.7

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5 6 7

Waterford v Commonwealth (1987) 163 CLR 54, 64–65. Carter v Managing Partner, Northmore Hale Davy & Leake (1995) 183 CLR 121, 127 (Brennan J). Ibid, 133 (Deane J). 303

Principles of Evidence

17.2.2 Scope of the privilege The privilege protects confidential communications between a lawyer and his or her client (or between two or more lawyers acting for the client), if made for either of the following purposes: • enabling the client to receive legal advice; or • in relation to litigation which was either under way or which was being contemplated at the time of the communication. At common law, one of the above must have been the sole purpose for which the communication was made: Grant v Downs (1976). Under the uniform evidence legislation, one of the above need only have been the dominant purpose for which the communication was made. In this respect, the scope of the uniform evidence legislation’s client legal privilege is obviously greater than the common law’s legal professional privilege. At both common law and under the uniform evidence legislation, though, there are in effect two privileges: one relating to legal advice, the other relating to litigation. This is reflected in the fact that the uniform evidence legislation has separate sections, namely ss 118 and 119 respectively, for each. Litigation privilege is slightly broader than the legal advice privilege at both common law and under the uniform evidence legislation, because it also applies to communications between a third party (such as a loss adjuster, doctor or a private investigator) and the lawyer or client. Under the uniform evidence legislation this ‘third party’ aspect of litigation privilege also applies to unrepresented parties, by virtue of s 120. The privilege applies to both oral and written communications. The communication must, however, be a confidential one. This phrase is defined in s 117(1) of the uniform evidence legislation as ‘a communication made in such circumstances that, when it was made ... the person who made it ... or ... the person to whom it was made ... was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law’. Difficult questions can arise when the communication was made in the presence of a third party. In R v Braham and Mason (1976), for example, it was held that this would not necessarily affect the confidential nature of the communication provided that the third party’s presence was unavoidable. The privilege also applies to confidential documents which are not communications, providing that they were brought into existence for one of the above purposes: see ss 118(c) and 119(b) of the uniform evidence legislation. It would, therefore, cover draft pleadings and other documents contained in a lawyer ’s file. Under the uniform evidence legislation, unrepresented parties can also claim client legal privilege in respect of confidential documents which were prepared for ‘the dominant purpose of preparing for or conducting the proceeding’: s 120(1)(b).

304

Privilege and Immunity At common law, the privilege also protects copies of unprivileged documents, provided that the copy was made for one of the recognised purposes: Commissioner, Australian Federal Police v Propend Finance Pty Ltd (1997). The copy will not be privileged, however, if it was made with the intention of destroying the original, for it would not then have been made for the sole purpose of obtaining legal advice or for use in litigation: Propend, per McHugh, Gummow and Kirby JJ. Moreover, according to Brennan J – the other member of the Propend majority – the copy will lose its privilege if it is the only available evidence of the contents of the unprivileged original. Whether the same approach can be taken under the uniform evidence legislation, will turn on the interpretation the courts give to the word ‘prepared’, which features both in the definition of the phrase ‘confidential document’ and in ss 118(c) and 119(b). Only if the act of copying can be regarded as ‘preparing’ a document could the Propend approach be taken; in this author’s view, it cannot.

17.2.3 Corporate and government lawyers Legal professional privilege can also apply when the ‘lawyer’ in question is actually the employee of the ‘client’, for example an in-house corporate or government lawyer: see Waterford v Commonwealth (1987) and s 117 of the uniform evidence legislation. The question will be whether the relationship between the lawyer and his or her employee can be characterised as one of lawyer and client, and whether the communication between them was made for one of the recognised purposes, ie, to enable the employer to receive legal advice, or in relation to pending or contemplated litigation.

17.2.4 Communications made for an improper purpose Given its public policy basis, it should not be surprising that the privilege does not protect communications which are contrary to the public interest. At common law, communications made for any of the following purposes have been held not to be privileged: • communications made as part or in furtherance of a crime or a fraud: see R v Cox and Railton (1884), where the two accused had consulted a solicitor about how they could defraud a creditor; • communications made for the purpose of frustrating the administration of justice: see R v Bell, ex parte Lees (1980), where a solicitor was compelled to reveal the whereabouts of a child who was the subject of a family court custody order; • communications made for the purpose of furthering a deliberate abuse of statutory power: see Attorney General (NT) v Kearney (1985), where the Northern Territory government appeared to have made certain town

305

Principles of Evidence planning regulations in order to defeat Aboriginal land claims, a purpose not recognised by the relevant legislation. Section 125 of the uniform evidence legislation retains the common law approach, providing that client legal privilege does not apply to a communication made in furtherance of ‘the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty’, or in furtherance of ‘a deliberate abuse of a power’. This covers cases such as Cox and Railton and Kearney. Cases like Bell are instead dealt with by s 121(2), which provides that the privilege does ‘not prevent the adducing of evidence if, were the evidence not adduced, the court would be prevented, or it could reasonably be expected that the court would be prevented, from enforcing an order of an Australian court’.

17.2.5 The privilege in criminal proceedings A successful claim of privilege in criminal proceedings can obviously operate to deny the defence access to vital information, even information which might be capable of establishing the innocence of the accused. Whether the interests of the accused should be recognised as more important than the interests protected by legal professional privilege is, therefore, a difficult question. In Carter v Managing Partner, Northmore Hale Davy & Leake (1995) a majority of the High Court held that the purposes served by legal professional privilege would be unavoidably compromised if a lawyer was unable to guarantee confidentiality to every communication made to him or her by a client. The House of Lords took the same view in R v Derby Magistrates’ Court ex p B (1995). Both courts therefore held that legal professional privilege did not give way in the face of an accused person’s demand for information. The uniform evidence legislation, on the other hand, takes the opposite approach. The effect of s 123 of the legislation is that privilege does not apply in a criminal proceeding to evidence sought to be adduced by the defendant. The only exception to this is when the privilege-holder is an ‘associated defendant’ of the defendant. This phrase is defined in the dictionary as ... a person against whom a prosecution has been instituted, but not yet completed or terminated, for; (1) an offence that arose in relation to the same events as those in relation to which the offence for which the defendant is being prosecuted arose; or (2) an offence that relates to or is connected with the offence for which the defendant is being prosecuted.

17.2.6 Waiver and loss of privilege Privilege can, of course, be ‘waived’. Waiver is simply the doing of an act which is inconsistent with the claim for confidentiality. An act of waiver can therefore be express or implied, deliberate or inadvertent. The common law 306

Privilege and Immunity rules which determine whether or not privilege has been waived are fairly complex, and beyond the scope of this work. These rules are restated, with some modifications, in s 122 of the uniform evidence legislation, the broad effect of which was described by the Australian Law Reform Commission in the following terms: If the person entitled to claim the privilege, or his servant or agent, voluntarily discloses or consents to the disclosure of the substance of any communication or material protected by the privilege to another person, the protection should be lost as to the part disclosed and connected communications unless the communication or material was disclosed to a co-client or to a person for the purpose of obtaining or continuing legal assistance or the person was tricked into disclosing the material or it was compelled in error.8

17.3

The privilege in aid of settlement

The efficient administration of justice depends on the fact that the vast majority of civil proceedings are settled. If most proceedings were not settled, the courts would become hopelessly clogged. In order for there to be settlement, there must clearly be negotiation. If statements made during negotiation were not privileged, however, then no one would be willing to negotiate. This is because a defendant’s offer to settle a civil action could be construed as an admission of liability; while a plaintiff’s offer to settle for less than the amount sought could be construed as an admission in relation to the quantum of damage, or in relation to the merits of the case. If, when negotiations broke down, such offers were admissible in evidence, then obviously no one would make them. Because of this, the public interest in the administration of justice requires that settlement negotiations be immune from disclosure. The privilege which gives effect to this public interest is referred to variously as ‘without prejudice’ privilege, the privilege in aid of settlement, or, in s 131 of the uniform evidence legislation, the privilege for ‘settlement negotiations’. Both at common law and under the uniform evidence legislation, the privilege is a joint privilege, belonging to all the parties to the negotiations, and requiring the consent of all for disclosure. The following points can be made about the privilege: • the privilege applies to communications between the parties to a dispute which were made in connection with a genuine attempt to negotiate a settlement of the dispute: Field v Commissioner for Railways for New South Wales (1957); • under the uniform evidence legislation, the privilege also applies to communications between one of the parties to the dispute and a third party, and to documents, whether delivered or not, which were made or prepared for the above purpose; __________________________________________________________________________________________________________________________________________

8

Evidence, ALRC 26, 1985, Vol 1 [885]. 307

Principles of Evidence • at both common law, and due to s 131(5)(b) of the uniform evidence legislation, the dispute being settled must be a civil dispute; the privilege does not apply to communications aimed at settling criminal proceedings, such as plea negotiations; • there is no magic in the words ‘without prejudice’; the use of this phrase will not make privileged a communication which was not made for the purposes of settlement; equally, failure to use this phrase will not be fatal to a claim of privilege: see Rodgers v Rodgers (1964); • under the uniform evidence legislation, the privilege applies in any subsequent legal proceedings, whether civil or criminal, and whether or not the proceedings involve the parties to the original negotiations; • at common law, on the other hand, the weight of authority suggests that the privilege only applies in proceedings arising out of the dispute to which the settlement negotiations related: see Barden v Barden (1921), Rush & Tomkins Ltd v Greater London Council (1989) and Hong Kong Bank of Australia Ltd v Murphy (1992).

17.4

The privilege against self-incrimination

The privilege against self-incrimination was the creation of the courts. It has been retained in s 128 of the uniform evidence legislation, with one very significant reform, discussed below under the heading ‘Overriding the privilege’. It is implicit in the wording of s 128, however, that it only applies in respect of a witness giving evidence at trial; in all other contexts the common law privilege continues to operate. It is also worth noting that the privilege against self-incrimination as here discussed is not available to the accused in a criminal proceeding in respect of evidence going to the question of whether the accused committed the crime charged.9

17.4.1 Justification for the privilege The privilege against self-incrimination is often said to have grown out of the common law’s reaction to the inquisitorial procedure of the Court of Star Chamber. There was seen to be something uniquely unjust about confronting a person suspected of having committed an offence with what Mason CJ and Toohey J described in EPA v Caltex (1993) as the ‘cruel trilemma’ of punishment for refusal to testify, punishment for truthful testimony or perjury (and the consequential possibility of punishment).10 As Brennan J noted in the same case: __________________________________________________________________________________________________________________________________________

9

See the uniform evidence legislation s 128(8); Crimes Act 1958 (Vic), s 399(4); Evidence Act 1977 (Qld), s 15(1); Evidence Act 1906 (WA), s 8(1)(d); Evidence Act 1929 (SA), s 18(1)V; Evidence Act 1910 (Tas), s 85(10); and Evidence Act 1939 (NT), s 9. 10 Environmental Protection Authority v Caltex (1993) 178 CLR 477, 498. 308

Privilege and Immunity The privilege is designed to protect human dignity. It is designed not to provide a shield against conviction but to provide a shield against conviction wrung out of the mouth of the offender.11

The privilege thus reflects the common law’s revulsion at the unfairness of forcing someone to provide the evidence upon which they will be convicted. In this it is ‘in the nature of a human right, designed to protect individuals from oppressive methods of obtaining evidence of their guilt for use against them’.12 The privilege is, thus, one of the means by which the law of evidence attempts to strike a fair balance between the competing demands of law enforcement and personal liberty. But the privilege also upholds the idea ‘that those who allege the commission of a crime should prove it themselves’.13 In this latter respect, the privilege is consistent with the fact that the burden of proof in criminal prosecutions lies on the Crown.

17.4.2 Scope of the privilege The privilege is more than just a rule of evidence. Being in the nature of a ‘human right’, it can be claimed in response to any compulsory demand for disclosure; unless, that is, the statute conferring the power of compulsion has also, either expressly or by necessary implication, abrogated the privilege. In recent years numerous cases have turned on the question of whether a particular statute has abrogated the privilege.14 Because these statutes are concerned with extra-curial powers of compulsion, however, this question falls outside the scope of the law of evidence, and will not be further considered. In the evidential context, the privilege can be claimed in respect of both answers to questions and the production of documents. It can be claimed in civil and criminal proceedings, and at both the trial and the pre-trial stages. In the language of s 128(1) of the uniform evidence legislation – which basically restates the common law – the privilege can be claimed, if the evidence sought would ‘tend to prove that the witness’: • ‘has committed an offence against or arising under an Australian law or a law of a foreign country’; or • ‘is liable to a civil penalty’; a civil action will only be regarded as imposing a ‘civil penalty’ if its aim is to punish rather than compensate; a fine imposed by statute is therefore a civil penalty; damages are not.

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11 12 13 14

Environmental Protection Authority v Caltex (1993) 178 CLR 477, 514. Ibid, 508 (Mason CJ and Toohey J). Ibid, 532 (Deane, Dawson and Gaudron JJ). See, for example, Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs (1985) 156 CLR 385 and Hamilton v Oades (1989) 166 CLR 486. 309

Principles of Evidence The ‘tend to prove’ test will clearly be satisfied if the evidence sought to be adduced would directly or circumstantially implicate the witness in a criminal or civil offence. At common law the privilege is also available if the evidence, while not incriminating in itself, could lead to the discovery of incriminating evidence. There is no suggestion in the Australian Law Reform Commission’s report that s 128 was intended to change this aspect of the privilege. The privilege can thus be claimed whenever an answer to a question would have a tendency to expose the person claiming the privilege to the imposition of a civil penalty or to conviction for a crime: see Blunt v Park Lane Hotel (1942).

17.4.3 Corporations and the privilege against self-incrimination As we have seen, the privilege against self-incrimination is considered by the courts to be a distinctively human right. Because of this, the High Court has held that it can not be claimed by corporations: EPA v Caltex (1993). Following Caltex, the Federal Court held that corporations were also unable to claim the related privilege against exposure to a civil penalty: Trade Practices Commission v Abbco Ice Works Pty Ltd (1994). The position is the same under the uniform evidence legislation: see s 187. This does not, of course, mean that an officer or employee of a corporation can be compelled to incriminate themselves personally; it simply means that they can not claim the privilege on behalf of the corporation.

17.4.4 Grounds for claiming the privilege It is not enough that the witness claims that the answers might be incriminating, or that the witness genuinely fears incrimination: The danger ... must be real and appreciable with reference to the ordinary operation of law in the ordinary course of things – not a danger of an imaginary and unsubstantial character, having reference to some extraordinary and barely possible contingency, so improbable that no reasonable man would suffer it to influence his conduct.15

This is a question for the judge, and the witness may have to show the judge just why it is that the answers would be incriminating. To like effect, s 128(2) of the uniform evidence legislation requires that the judge must be satisfied ‘that there are reasonable grounds for the objection’. A claim to privilege will obviously be rejected if the witness could not be tried for the offence, as they could not if they had already been convicted or acquitted of it. Similarly, if the evidence has already been disclosed in another context, then it is hard to see how any additional disclosure could increase the risk of conviction.

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15 R v Boyes (1861) 1 B&S 311, 330; 121 ER 730, 738. 310

Privilege and Immunity

17.4.5 Overriding the privilege At common law, there is no provision allowing the courts to override a valid claim of privilege. The court must simply do without the evidence. The aims which justify the privilege could instead be met, however, by forcing the witness to answer the incriminating question, but then ensuring that the incriminating answer could not be used against the witness. The uniform evidence legislation allows this. A witness can, under s 128(2), voluntarily exchange the protection provided by the privilege for the protection of a useimmunity certificate; and, if the court considers that ‘the interests of justice require the witness to give the evidence’, s 128(5) allows the court itself to substitute the one form of protection for the other. The court can, in other words, order a witness to answer incriminating questions. Section 128(5) does not apply, however, if the offence or civil penalty arises under the law of a foreign country. Moreover, in proceedings to which the Commonwealth Act applies, a certificate granted under ‘a prescribed State or Territory provision’ – such as s 128 of the New South Wales Act – has the same effect as one granted under s 128 of the Commonwealth Act: see s 128(10). There are similar provisions in Western Australia and Tasmania.16 The uniform evidence legislation contains no guidance, however, as to the criteria to be considered by the court in deciding whether or not ‘the interests of justice require the witness to give the evidence’. Presumably, this will turn on the importance of the evidence, whether it is possible to obtain the evidence other than from the witness, the likelihood of proceedings being instituted against the witness, and the seriousness of the offence in respect of which the witness will be forced to incriminate him or herself. Where such a certificate has been granted, neither the evidence given by the person in respect of which the certificate was granted, or evidence ‘of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence’ can be used against the person in an Australian proceeding: s 128(7). In other words, the certificate confers both ‘direct-use’ and ‘derivative-use’ immunity. The derivative-use immunity renders inadmissible any evidence which was discovered as a result of the witness’s testimony. Nevertheless, the mere fact of disclosure by the witness is likely to open avenues of investigation which might not otherwise have been considered; and, if proceedings are eventually brought against the witness, difficult questions will arise in relation to whether or not any of the evidence tendered by the prosecution was obtained as ‘a direct or indirect consequence of the person having given evidence’.

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16 See Evidence Act 1906 (WA), s 13; and Evidence Act 1910 (Tas), s 87. 311

Principles of Evidence

17.5

Public interest immunity

17.5.1 The nature of public interest immunity Public interest immunity is another common law doctrine retained by the uniform evidence legislation, in this case by s 130 of the legislation. As with the other rules discussed in this chapter, the uniform evidence legislation provisions only apply at trial; in the pre-trial context, the common law continues to apply. The common law and the uniform evidence legislation versions of public interest immunity are, however, virtually identical. The main difference is one of terminology: under the uniform evidence legislation, the rule applies to ‘information or a document that relates to matters of State’. Although ordinarily treated as part of the law of privilege, public interest immunity in fact differs from rules of privilege in two fundamental respects. First, it is not personal: it belongs to no one and cannot be waived. Indeed, even if no one claims public interest immunity, it is still open to the court, acting on its own motion, to determine whether or not it applies: see Sankey v Whitlam (1978) and s 130(2) of the uniform evidence legislation. In practice, however, if no one claims that the information sought is immune from disclosure on public interest grounds, then a court is unlikely to consider the question. Moreover, once a public interest immunity issue is raised, whether by the court, by the parties, or by the person from whom the information is sought, the court may ‘inform itself in any manner it thinks fit’ (s 130(3)); the court is not, in other words, restricted to the material presented by the parties. Secondly, the court must reach its decision about whether or not a document is immune in a completely different way from that by which it decides the validity of a claim to privilege. In general, if a claim to privilege is valid, then it must be upheld, no matter how great is the interest of the party in obtaining the information sought. With public interest immunity, on the other hand, the court must engage in a balancing exercise in which it decides, on a case-by-case basis, which of two public interests is greater: the public interest in the non-disclosure of the document, or the public interest in disclosure. Section 130(1) of the uniform evidence legislation therefore states the rule in the following way: If the public interest in admitting into evidence information or a document that relates to matters of State is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.

The actual balancing exercise is, however, only the final of the following steps which must be taken whenever an issue of public interest immunity arises: • first, the court must decide whether – questions of public interest aside – the information or document sought is likely to be relevant to the issues at the trial; if the issue arises in the context of discovery, the question will be

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•

•

• • •

whether the documents sought contain information which would (or which could lead to a chain of inquiry which would) advance the case of the party seeking disclosure, or damage that of its opponent; secondly, the person seeking to withhold the information, should identify a public interest which, in its view, requires that the information sought should be held to be immune from disclosure; consistent with the principle that public interest immunity is not personal, the court may instead do this of its own motion; thirdly, the court must decide whether or not this is a ‘valid’ public interest, ie decide whether or not there really is a recognisable public interest in non-disclosure; fourthly, the court must weigh the public interest in non-disclosure; fifthly, the court must weigh the public interest in disclosure; and finally, the court must decide whether the balance of public interest favours disclosure or non-disclosure.

17.5.2 The interest in non-disclosure Although the categories of public interest are not closed, there are several well-recognised public interest arguments for non-disclosure. These arguments, recognised at common law, have been reproduced in s 130(4) of the uniform evidence legislation, which provides a non-exhaustive list of the kinds of information or documents which can be held to relate to ‘matters of State’. The fact that the claimed public interest in non-disclosure has been recognised as valid does not, of course, mean that the information or document will necessarily be held to be immune from disclosure; it simply means that the court will recognise that there is something to weigh against the public interest in ensuring that the parties and the court have access to all relevant information. 17.5.2.1 Class claims and contents claims There is a ‘rough but accepted’ division between ‘class’ claims for immunity and ‘contents’ claims for immunity.17 This division serves to differentiate between ‘those documents the disclosure of which would be injurious to the public interest, whatever the contents, from those documents which ought not to be disclosed because of the particular contents’.18 High-level government documents, discussed under the next heading, provide a common example of a class claim for immunity. The submarine plans in Duncan v Cammell Laird (1942), discussed below, are an example of a contents claim. The division is, however, a very rough one. __________________________________________________________________________________________________________________________________________

17 Burmah Oil v Bank of England [1980] AC 1090, 1111 (Lord Wilberforce). 18 Commonwealth v Northern Land Council (1993) 176 CLR 604, 615 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ). 313

Principles of Evidence 17.5.2.2 National security and inter-governmental relations Section 130(4)(a) provides that information or a document relates to ‘matters of state’ if adducing it as evidence would ‘prejudice the security, defence or international relations of Australia’. In addition, s 130(4)(b) provides that information or a document relates to matters of state if adducing it as evidence would ‘damage relations between the Commonwealth and a State or between two or more States’. The submission of a ministerial affidavit to the effect that the disclosure of information or a document might have such an effect is not conclusive: it is still a question for the courts to determine where the balance of public interest lies. Nevertheless, the courts are likely to give a great deal of weight to such an affidavit. Duncan v Cammell Laird (1942) provides an example of a document the disclosure of which could prejudice national security. There the plaintiffs in a negligence action arising out of the accidental sinking of a British submarine sought copies of the submarine’s plans from the manufacturer. Given the wartime context of the litigation, it should hardly have been surprising that the claim was rejected on the grounds that disclosure of the submarine’s plans might have jeopardised national security. 17.5.2.3 The functioning of government Section 130(4)(f) provides that information or a document relates to matters of state, if adducing it as evidence would ‘prejudice the proper functioning of the government of the Commonwealth or a State’. This is arguably the broadest of the listed categories. It clearly covers high-level government documents, such as Cabinet minutes and papers, memoranda between ministers and their departmental heads, and policy papers for consideration by ministers: see Sankey v Whitlam (1980) and Commonwealth v Northern Land Council (1993). Several arguments are used to justify non-disclosure of such documents: • in relation to documents prepared by public servants, the ‘frankness and candour’ argument: that is, that the knowledge that such documents are liable to subsequent disclosure might ‘discourage candour on the part of public officials in their communications with those responsible for making policy decisions’;19 • in relation to documents recording Cabinet deliberations, that the possibility of disclosure might impede the deliberations by ‘muting a free and vigorous exchange of views or by encouraging lengthy discourse engaged in with an eye to subsequent public scrutiny’;20

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19 Commonwealth v Northern Land Council (1993) 176 CLR 604, 615 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ). 20 Ibid. 314

Privilege and Immunity • that the doctrine of ‘collective responsibility could not survive in practical terms if Cabinet deliberations were not kept confidential’;21 • in relation to any high-level government document, that disclosure might expose the government to ‘criticism of a premature, ill-informed or misdirected nature and [so] divert the process from its proper course’.22 Whether secrecy really is essential to good government is, of course, more a question of political philosophy than one of law. Be that as it may, in the Northern Land Council case, the High Court suggested that where Cabinet deliberations are concerned, ‘only considerations which are indeed exceptional would be sufficient to overcome the public interest in their immunity from disclosure’;23 the court also questioned: ... whether the disclosure of the records of Cabinet deliberations upon matters which remain current or controversial would ever be warranted in civil proceedings. The public interest in avoiding serious damage to the proper working of government at the highest level must prevail over the interests of a litigant seeking to vindicate private rights. In criminal proceedings the position may be different. Thus, the necessary exceptional circumstances may exist in cases involving allegations of serious misconduct on the part of a Cabinet minister. Sankey v Whitlam (1978) was such a case.24

This ground of public interest immunity is not, however, restricted to highlevel government documents. Indeed, it is arguably not even restricted to documents sought from the government. In Aboriginal Sacred Sites Protection Authority v Maurice (1986), for example, the Federal Court was willing to recognise that there was a public interest in maintaining the confidentiality of information provided to an independent statutory authority in performance of its statutory obligations. Where lower level governmental interests are concerned, however, the court may give significantly less weight to the public interest in non-disclosure, in comparison to cases involving high-level government documents. 17.5.2.4 Investigation and prosecution Sections 130(4)(c), (d) and (e) of the uniform evidence legislation provide, respectively, that information or a document relates to matters of State, if adducing it as evidence would: • ‘prejudice the prevention, investigation or prosecution of an offence’; or

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21 Commonwealth v Northern Land Council (1993) 176 CLR 604, 615 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ). 22 Ibid. 23 Ibid, 618. 24 Ibid. 315

Principles of Evidence • ‘prejudice the prevention, or investigation of, or the conduct of proceedings for recovery of civil penalties brought with respect to, other contraventions of the law’; or • ‘disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State’. The most important of these three heads of immunity is undoubtedly the last. This reflects a long-recognised common law rule that the police need not disclose the identity of their informers. The justification for this rule is twofold: first, to protect the particular informer concerned from the possibility of retaliation; and secondly, to ensure that people continue to be willing to come forward with information. If the police are unable to guarantee anonymity to their informers then clearly their supply of information may dry up, and the ability of the police to enforce the law will be correspondingly diminished. Police informers are the most common example of informers whose identity may be protected, but neither the common law nor the uniform evidence legislation is restricted to police informers. In D v NSPCC (1978), for example, the House of Lords recognised that there was a public interest in maintaining the anonymity of those providing confidential information to the National Society for the Prevention of Cruelty to Children, a voluntary organisation whose role in bringing child abuse proceedings had been recognised by legislation. Given its role in enforcing child abuse legislation, the NSPCC case would clearly fall within the scope of s 130(4)(e). Cases where the police claim public interest immunity for the identity of persons who have made their premises available for the carrying out of surveillance operations – such as R v Johnson (1988) – would also, presumably, fall within the scope of either s 130(4)(c) or (e). At common law there is conflicting authority on the question of whether the claim for immunity is absolute in the case of police informers, or is subject to the same balancing process as other areas of public interest immunity. At common law it is often said that the identity of police informers is exempt from the balancing process, and that the identity of such informers is only to be disclosed in the rare case where such disclosure could help to establish the accused’s innocence: see Cain v Glass (No 2) (1985) and Attorney General for New South Wales v Smith (1996). The uniform evidence legislation, however, clearly endorses the contrary view: that the competing public interests must always be balanced against each other, albeit that the balance may almost invariably come down in favour of non-disclosure. 17.5.2.5 Novel public interest claims The categories of recognisable public interest are not closed; in other words, the fact that a particular public interest has not been recognised in any previous cases is not necessarily fatal to a claim for non-disclosure. For this

316

Privilege and Immunity reason, the drafters of the uniform evidence legislation were careful to ensure that the list of public interest arguments contained in s 130(4) was a nonexhaustive list. There is, however, one aspect of the wording of the uniform evidence legislation which could, perhaps unintentionally, narrow the area in which future public interests claims for non-disclosure could be developed. This is the use in s 130 of the phrase ‘matters of State’. This phrase tends to suggest that the only kind of public interest argument which can be recognised is one relating to the functioning of government. It is doubtful that the common law is so restricted. For example, at common law it would be possible to develop public interest immunity arguments in relation to much of the information discussed below under the heading ‘Confidential relationships’ (whether the courts would recognise such claims as valid is, of course, another matter); it is extremely difficult, however, to see how this kind of information could ever be regarded as relating to ‘matters of State’. Clearly, if the Australian Law Reform Commission’s stated intention to ‘interfere as little as possible with the common law’,25 is to be given effect, then the phrase ‘matters of State’ will need to be interpreted broadly.

17.5.3 The interest in disclosure If there is a recognised interest in non-disclosure, then the next step is to consider the interest in disclosure. This interest has two aspects. The first is the requirement that, as a matter of procedural fairness, the courts should take into account all relevant material. Failure to do so clearly has the capacity to undermine the integrity of the administration of justice, in that it may give rise to doubts over whether justice has been done. But it is not only the administration of justice which may be harmed: the party seeking the information would also clearly be harmed if the court reached a different verdict from that which it would have reached if all relevant information had been available. For this reason, the interest in disclosure will always depend on the contents of the information or documents sought. The more likely it is to have an effect on the outcome of the case, the greater the interest in disclosure will be. The interest in disclosure is also particularly strong when the matter to be decided by the court concerns the innocence or guilt of a person charged with a crime. Indeed, in criminal cases the interest in disclosure is so strong that it was for a time doubted in England that a claim for public interest immunity could even be made in criminal proceedings. And it was suggested by Murphy J in Alister v R (1983) that if ‘the public interest demands that material capable of assisting an accused be withheld, then the proper course may be to abandon the prosecution or for the court to stay proceedings’.26 __________________________________________________________________________________________________________________________________________

25 Evidence, ALRC 26, 1985, Vol 1 [864]. 26 Alister v R (1983) 154 CLR 404, 431. 317

Principles of Evidence

17.5.4 The balancing exercise In weighing, and then balancing, the competing public interests, a court might take into account any of the following factors (although these are derived from s 130(5) of the uniform evidence legislation, the approach at common law is likely to be the same): • the importance of the information or the document in the proceeding; • if the proceeding is a criminal proceeding – whether the party seeking to adduce evidence of the information or document is a defendant or the prosecutor; the interest of a defendant in proving innocence will obviously be given greater weight than the interests of the prosecution in proving guilt; • the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding; the more serious the subject matter of the proceeding, then obviously the greater the interest in disclosure will be; • the likely effect of adducing evidence of the information or document, and the means available to limit its publication; this factor relates to the weight of the interest in non-disclosure; • whether the substance of the information or document has already been published; if it has, then clearly the interest in non-disclosure is likely to be of little weight; • if the proceeding is a criminal proceeding and the party seeking to adduce evidence of the information or document is a defendant – whether the direction is to be made subject to the condition that the prosecution be stayed; if it is to be stayed, then a court will clearly feel more comfortable in upholding the claim for non-disclosure.

17.5.5 Court inspection If in doubt about whether or not to order disclosure, the court can always inspect the documents. Indeed, it will often be difficult for a court to assess the strength of the interest in either disclosure or non-disclosure without knowing what the documents actually contain. In Alister v R (1983), the High Court therefore ordered certain Australian Security Intelligence Organisation documents to be produced for court inspection before declaring that the documents did not in fact contain material which would assist the defence case. The court did so without the assistance of counsel, a procedure objected to by Murphy J who argued that the significance of the documents might only have been apparent to counsel. In Commonwealth v Northern Land Council (1993), however, the High Court took the same approach as in Alister, criticising a decision by Jenkinson J in the Federal Court to order Cabinet documents to be produced for inspection by the legal representatives of the

318

Privilege and Immunity Northern Land Council. The High Court indicated that if inspection had been appropriate – and the court did not think it was – it should have been carried out by the court alone.

17.6

Confidential relationships

The common law has never recognised confidentiality, per se, as grounds for allowing a person to resist a demand for disclosure. The Evidence Amendment (Confidential Communications) Act 1997 (NSW), however, inserted a new division into the New South Wales version of the uniform evidence legislation, allowing a court to direct that evidence not be adduced if doing so might cause harm to a ‘confider’. The new division is Division 1A – ‘Professional confidential relationship privilege’ of Part 3.10 of the legislation, and it introduces ss 126A to 126F. The amendments are in part a response to concern about a developing defence practice in rape trials of seeking access to a complainant’s therapeutic or counselling records; and partly a response to the long-standing grievance of journalists that the law does not recognise a privilege for the identity of their confidential sources. Other professional confidential relationships which could give rise to the privilege include those between doctor and patient, therapist or counsellor and patient or client, and between accountant and client. Section 126B(1) provides that a court ‘may direct that evidence not be adduced in a proceeding if the court finds that adducing it would disclose ... a protected confidence’. The phrase ‘protected confidence’ is defined in s 126A as: ... a communication made by a person in confidence to another person (in this Division called the confidant): (a) in the course of a relationship in which the confidant was acting in a professional capacity, and (b) when the confidant was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law or can be inferred from the nature of the relationship between the person and the confidant.

A ‘protected confider ’ is defined as a person who made a protected confidence. Although the title of the division refers to ‘professional confidential relationship privilege’, Division 1A is actually more closely analogous to public interest immunity. This is because the protection it confers is not absolute, but dependent on the outcome of a balancing exercise. Section 126B(3) thus provides that a court must give a direction that evidence of a protected confidence not be adduced if it is satisfied that: (a) it is likely that harm would or might be caused (whether directly or indirectly) to a protected confider if the evidence is adduced, and (b) the nature and extent of the harm outweighs the desirability of the evidence being given. 319

Principles of Evidence Section 126B(4) provides a non-exhaustive list of factors which the court must take into account in carrying out this balancing process. Although Division 1A undoubtedly provides greater protection for confidential information than does the current state of the law, it has not been universally approved. Indeed, it has been persuasively argued that the law should go much further and recognise an indefeasible privilege for sexual assault counselling records.27

17.7

Summary

At both common law and under the uniform evidence legislation: • the law of privilege allows a person from whom information is sought to resist what would otherwise be a compulsory request for disclosure; • the information may be sought in the form of either an answer to a question or the production of a document; • the law of privilege is personal, which means that privilege may be waived by the privilege-holder, and only by the privilege-holder.

17.7.1 Legal professional privilege Legal professional privilege (or client legal privilege as it is referred to under the uniform evidence legislation) is: • a privilege belonging to the client rather than the lawyer; • which applies to communications made for the sole (or, under the uniform evidence legislation, dominant) purpose of either obtaining legal advice or in relation to pending or anticipated litigation; • in order to be privileged, the communication must have been confidential; • a communication made for an improper purpose will not be privileged; • in criminal proceedings, under the uniform evidence legislation only, the privilege does not apply to evidence adduced by a defendant, except where the privilege-holder is an associated defendant of the defendant seeking to adduce the evidence.

17.7.2 The privilege in aid of settlement The privilege in aid of settlement (or for settlement negotiations as it is referred to under the uniform evidence legislation): • applies to communications between the parties to a civil dispute; • where the communications were made in connection with a genuine attempt to settle the dispute. __________________________________________________________________________________________________________________________________________

27 See Cossins, A and Pilkinton, R, ‘Balancing the Scales: The Case for the Inadmissibility of Counselling Records in Sexual Assault Trials’ (1996) 19 University of New South Wales Law Journal 222. 320

Privilege and Immunity

17.7.3 The privilege against self-incrimination Both at common law and under the uniform evidence legislation, the privilege against self-incrimination: • allows a witness to refuse to answer a question if the court is satisfied that the answer to the question would have a tendency to expose the witness to the imposition of a civil penalty or to conviction for a crime; and • the privilege is regarded as a human right, and can not be claimed by corporations; • under the uniform evidence legislation, the court may, if satisfied that the interests of justice require this, order a witness to answer an incriminating question; if the court does so it must grant the witness a certificate preventing the use of the answer, or of any information obtained as a consequence of the answer, from being used against the witness in an Australian court.

17.7.4 Public interest immunity Public interest immunity is fundamentally different from the law of privilege in two respects: • first, public interest immunity is not personal (and therefore need not be claimed, and can not be waived); and • secondly, a claim of public interest immunity is determined on the basis of a balancing exercise involving the competing public interests in disclosure and non-disclosure; • before carrying out this balancing exercise, the court must first determine whether there is a valid public interest in non-disclosure; • if in doubt about whether or not to order disclosure, the court may choose to inspect the documents sought.

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CHAPTER 18

DISCRETIONS TO EXCLUDE EVIDENCE

18.1

Introduction

18.1.1 Overview Evidence which is relevant and admissible may, in certain circumstances, be excluded in the exercise of the trial judge’s discretion. The existence of exclusionary discretions is a recognition of the fact that the exclusionary rules do not necessarily exclude all the evidence which ought, in the interests of justice, to be excluded. It is equally true that the exclusionary rules sometimes lead to the exclusion of evidence which ought, in the interests of justice, to be admitted; but neither at common law nor under the uniform evidence legislation, are there any inclusionary discretions allowing the judge to admit the inadmissible. This chapter looks at the following exclusionary discretions: • the discretion to exclude evidence on the grounds that it is prejudicial; • the discretion to exclude evidence on the grounds that it is misleading, confusing, or time-wasting; and • the discretion to exclude evidence on the grounds that it was improperly or illegally obtained. Two other discretions, operating only in criminal proceedings, have already been discussed in previous chapters: • the discretion to exclude evidence of a confession on the grounds that its use would be unfair to the accused: see Chapter 10: Admissions and Confessions by the Accused; and • the discretion to allow or disallow prejudicial cross-examination of the accused: see Chapter 15: The Character and Credibility of the Accused.

18.1.2 Nature of discretion The difference between an exclusionary discretion and an exclusionary rule can be illustrated by comparing the tendency and coincidence rules with the discretion to exclude evidence on the grounds that it is more prejudicial than probative. Under the uniform evidence legislation, the tendency and coincidence rules require the trial judge to ask whether the probative value of the evidence outweighs its prejudicial effect. The vagueness of these terms no doubt gives the trial judge some latitude. But if the judge finds that probative value does not outweigh prejudicial effect, then exclusion is mandatory. With the discretion to exclude evidence on the grounds that its probative value is

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Principles of Evidence outweighed by its prejudicial effect, on the other hand, it is possible (in theory at least) for the judge to find that prejudicial effect does indeed outweigh probative value, but to admit the evidence nevertheless. Once it has been found that prejudicial effect does outweigh probative value, the exclusionary rule permits only one result: the exclusion of the evidence. The discretion leaves the judge with a choice. This makes it difficult to challenge a judge’s exercise of his or her discretion on appeal. Appellate courts generally take the view that the exclusionary discretions form part of a trial judge’s overall discretion to control the proceedings over which they preside, and that the trial judge is far better placed than an appellate court can ever be to determine whether – in the context of a particular trial – the admission of a particular item of evidence is likely to be prejudicial or unfair. As a consequence, appellate courts are reluctant to interfere with a trial judge’s exercise of discretion, and will generally only do so on one of the following grounds: • that the judge failed to exercise the discretion because he or she misdirected him or herself about the existence of the discretion or about the facts which call for its exercise; • that the judge failed to exercise the discretion because he or she wrongly found that the facts which called for an exercise of the discretion did not exist; • that the judge took into account irrelevant considerations or failed to take into account relevant considerations; or • that the judge exercised his or her discretion in an unreasonable way.

18.1.3 The uniform evidence legislation Exclusionary discretions are likely to play a significantly greater role in determining the admissibility of evidence under the uniform evidence legislation than they have at common law. This is for two reasons. First, the general relaxation of the exclusionary rules of evidence brought about by the legislation will inevitably mean that more challenges to the admissibility of evidence must be mounted on discretionary grounds. Secondly, the exclusionary discretions under the uniform evidence legislation are significantly broader in scope than at common law, most notably, extending to civil proceedings discretions which at common law apply only to evidence led by the prosecution in criminal proceedings.

18.2

Prejudicial evidence

18.2.1 Common law At common law, the courts have recognised that the trial judge has a discretion to exclude otherwise admissible evidence on the grounds that it is 324

Discretions to Exclude Evidence unduly prejudicial: see R v Christie (1914). Such a discretion is necessary if the trial judge is to be able to ensure that the accused receives a fair trial. As Gibbs CJ commented in Driscoll v R (1977): It has long been established that the judge presiding at a criminal trial has a discretion to exclude evidence if the strict rules of admissibility would operate unfairly against the accused. The exercise of this discretion is particularly called for if the evidence has little or no weight, but may be gravely prejudicial to the accused.1

As this passage suggests, the common law discretion is only available in relation to evidence led by the prosecution in criminal proceedings. There is generally thought to be no corresponding discretion available in civil proceedings; nor is there a discretion which permits the judge to admit otherwise inadmissible evidence. The discretion is only exclusionary.

18.2.2 The uniform evidence legislation The same discretion exists under the uniform evidence legislation, but it is broader in two respects. First, it applies in both civil and criminal proceedings, and in criminal proceedings can, in theory, even apply to evidence led by the defence. Thus, s 135 provides that: The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party ...

This is clearly a discretion of general application. Secondly, the court has the option of limiting the use of the evidence, instead of excluding it. Thus, s 136 provides that: The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might: (a) be unfairly prejudicial to a party ...

This would require the judge to direct the tribunal of fact that the evidence could be used for one of the purposes for which it was relevant, but not for the purpose for which its use might be prejudicial. Although ss 135 and 136 are of general application, the uniform evidence legislation recognises that special considerations arise in criminal proceedings. Section 137 of the legislation therefore creates a discretion which applies only to evidence led against the accused. It provides that: In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

__________________________________________________________________________________________________________________________________________

1

Driscoll v R (1977) 137 CLR 517, 541. 325

Principles of Evidence Although s 137 is contained in Part 3.11 – Discretions to Exclude Evidence, the replacement of the word ‘may’ in ss 135 and 136 with the word ‘must’ in s 137 indicates that this is really an exclusionary rule. The only room for the court to exercise ‘discretion’ is in deciding whether or not the risk of prejudice does outweigh the probative value of the evidence; if the court decides that it does, then exclusion is mandatory: see R v Lock (1997).

18.2.3 Applying the discretion With both the common law and the uniform evidence legislation discretions, the judge is required to identify the probative value of the evidence and its possible prejudicial effect. The idea is that the judge should balance the one against the other, and exclude the evidence if, in his or her opinion, the prejudicial effect of the evidence outweighs (or under s 135 of the uniform evidence legislation, substantially outweighs) its probative value. ‘Probative value’ is defined in the Dictionary section of the legislation as ‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue’. The key to this definition – which is equally appropriate for the common law – is the word ‘rationally’. Probative value is about the weight which the tribunal of fact, if acting rationally, could give to the evidence. Probative value depends on a variety of factors: the credibility of the evidence, the strength of the inference which can be drawn from it, and the relevance of that inference to the facts in issue. Probative value is to be contrasted with the ‘prejudicial effect’ which the admission of the evidence might have. Evidence is prejudicial when there is a risk that it might be given more weight than it rationally warrants, or when it might cause the tribunal of fact to behave in an emotive, rather than rational, manner. The Australian Law Reform Commission thus explained the concept of prejudice in the following way: By risk of unfair prejudice is meant the danger that the fact-finder may use the evidence to make a decision on an improper, perhaps emotional, basis, ie, on a basis logically unconnected with the issues in the case. Thus evidence that appeals to the fact-finder’s sympathies, arouses a sense of horror, provokes an instinct to punish, or triggers other mainsprings of human action may cause the fact-finder to base his decision on something other than the established propositions in the case. Similarly, on hearing the evidence the fact-finder may be satisfied with a lower degree of probability than would otherwise be required.2

Examples of evidence which could be excluded on these grounds include the following: • gruesome crime scene photographs; whether it is proper to admit such photographs may depend on whether they are of genuine relevance to the __________________________________________________________________________________________________________________________________________

2

Evidence, ALRC 26, 1985, Vol 1 [644]. 326

Discretions to Exclude Evidence

•

• •

•

•

issues; in R v Ames (1964), for example, the court held such photographs to have been properly admitted because they showed the direction of the flow of blood, a matter relevant to the question of whether the deceased had been murdered or had committed suicide; an unsigned record of interview: see Driscoll v R (1977) (although such evidence is likely to be inadmissible in most jurisdictions now anyway – see Chapter 10: Admissions and Confessions by the Accused); certain unreliable types of identification evidence: see Chapter 16: Identification Evidence; evidence led to rebut the accused’s claim of good character, particularly where the rebuttal evidence relates to a different aspect of character from that raised by the accused: see R v Stalder (1981) and Chapter 15: The Character and Credibility of the Accused; evidence from an accomplice testifying for the prosecution, where there is a higher than usual risk of fabrication, such as in cases where the accomplice has received an immunity from prosecution in exchange for a promise to give specific testimony against the accused, or where the accomplice has not yet been dealt with by the courts: see R v McLean and Funk ex p Attorney General (1991); and highly equivocal evidence such as the fact that the accused ‘shrugged’ his shoulders in response to police questioning: see R v Astill (Robert) (1992).

18.3

Misleading, confusing and time-wasting evidence

At common law, there is no explicit discretion to exclude evidence on the grounds that it is misleading, confusing or time-wasting. If such a discretion does exist, it is concealed in the concept of ‘legal relevance’ which was discussed in Chapter 5: Relevance. Under the uniform evidence legislation, on the other hand, this discretion is brought out into the open, with a test for relevance which merely requires that evidence be capable of rationally affecting the probabilities, no matter how slightly, coupled with broad exclusionary discretions allowing the court to exclude evidence of insufficient weight to warrant admission. Section 135 therefore provides that: The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: ... (b) be misleading or confusing; or (c) cause or result in undue waste of time.

Where evidence is relevant for more than one purpose, and its use for one of those purposes might be ‘misleading or confusing’, then s 136 gives the court a discretion to limit the use which can be made of the evidence. This would require the judge to direct the jury that the evidence could be used for one of

327

Principles of Evidence the purposes for which it is relevant, but not for the purpose for which it would be misleading or confusing. The justification for the ‘misleading or confusing’ branch of these discretions is obviously the promotion of accurate fact-finding. Evidence might be considered ‘misleading or confusing’ if the tribunal of fact is unlikely to be able to assess accurately the weight which it should be given. Expert evidence might sometimes be thought to give rise to this danger: see the discussion under the heading ‘Is the evidence unreliable or confusing?’ in Chapter 8: Opinion Evidence. The justification for the ‘time-wasting’ branch of the discretions is the more pragmatic one of ensuring that legal proceedings are not unnecessarily lengthened by the admission of evidence which, though technically relevant, is unlikely to give the tribunal of fact any real assistance. Evidence might thus be considered likely to ‘cause or result in undue waste of time’ if it was merely cumulative, or if it would unnecessarily proliferate the issues which the tribunal of fact would have to resolve.

18.4

Illegally or improperly obtained evidence

When illegally or improperly obtained evidence is offered in court there is a fundamental clash of principle. On the one hand, the principle that all relevant evidence should be considered by the court demands the admission of the evidence. On the other hand, the legitimacy and disciplinary principles, discussed in the introductory chapter, demand its exclusion. The difficulty of this dilemma was succinctly expressed by Holmes J in the leading United States case of Olmstead v US (1928): Therefore we must consider the two objects of desire both of which we cannot have and make up our minds which to choose. It is desirable that criminals should be detected, and to that end all available evidence should be used. It also is desirable that the government should not itself foster and pay for other crimes, when they are the means by which evidence is to be obtained.3

Holmes J’s own view was that it is a ‘less evil that some criminals should escape than that the government should play an ignoble part’. This is a view to which courts in the United States still largely adhere, with the result that there is – subject to some qualifications – a mandatory rule of exclusion for illegally obtained evidence. The traditional English approach – an approach now modified significantly by the discretions contained in the Police and Criminal Evidence Act 1984 – on the other hand, was that ‘It matters not how you get it; if you steal it even, it would be admissible’.4 In other words, the illegality by which the evidence was obtained was considered irrelevant to the question of its admissibility. __________________________________________________________________________________________________________________________________________

3 4

Olmstead v United States 277 US 438, 470 (1928). R v Leatham (1861) 8 Cox CC 498, 501. 328

Discretions to Exclude Evidence

18.4.1 The Australian approach The Australian approach is fundamentally different. The aim in Australia is to balance the conflicting public interests. To this end the High Court has recognised the existence of an exclusionary discretion which comes into operation whenever it appears that evidence has been obtained illegally or improperly. In exercising the discretion, the court must weigh against each other: ... two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval or even encouragement being given to the unlawful conduct of those whose task it is to enforce the law.5

The disciplinary principle suggested by the above passage is not, however, the only principle weighing against admission. In Pollard v R (1992), Deane J suggested that the claims of the legitimacy principle must also be considered: It is the duty of the courts to be vigilant to ensure that unlawful conduct on the part of the police is not encouraged by an appearance of judicial acquiescence. In some circumstances, the discharge of the duty requires the discretionary exclusion, in the public interest, of evidence obtained by such unlawful conduct. In part, this is necessary to prevent statements of judicial disapproval appearing hollow and insincere in a context where curial advantage is seen to be obtained from the unlawful conduct. In part, it is necessary to ensure that the courts are not themselves demeaned by the uncontrolled use of the fruits of illegality in the judicial process.6

This common law discretion, often referred to as the ‘public policy’ discretion, applies equally to all kinds of evidence, including evidence of a confession or admission by the accused. The discretion has been retained in s 138(1) of the uniform evidence legislation, which is in the following terms: Evidence that was obtained: (a) improperly or in contravention of an Australian law; or (b) in consequence of an impropriety or of a contravention of an Australian law; is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

This discretion is most commonly exercised in relation to prosecution evidence in criminal proceedings. Nevertheless, at both common law and under the uniform evidence legislation, the discretion is of general __________________________________________________________________________________________________________________________________________

5 6

Bunning v Cross (1978) 141 CLR 54, 74 (Stephen and Aickin JJ). Pollard v R (1992) 176 CLR 177, 202–03. 329

Principles of Evidence application. For authority that the common law discretion is available in civil proceedings, see Pearce v Button (1985). There is, however, one significant difference between the common law and the uniform evidence legislation discretions. This difference relates to what might be called the ‘burden of persuasion’. At common law, it is for the party seeking the exclusion of the evidence to persuade the court that the balance of public interest favours its exclusion. Under the uniform evidence legislation, on the other hand, once it appears that the evidence has been illegally or improperly obtained, the onus is on the party seeking to adduce the evidence to persuade the court that the balance of public interest favours its admission. In other words, at common law, the scales are initially tilted in favour of admission, whereas under the uniform evidence legislation, the scales are initially tilted in favour of exclusion.

18.4.2 Confessions and the fairness discretion Admissions and confessions by the accused are subject to two discretions: the fairness discretion, discussed in Chapter 10: Admissions and Confessions by the Accused, and the public policy discretion discussed in this chapter. There is considerable overlap between these discretions, and the circumstances identified below as calling for the exercise of the public policy discretion, would also – if the evidence obtained was a confession – call for the exercise of the fairness discretion. Nevertheless, as the High Court pointed out in Foster v R (1993), the focus of each discretion is quite different: The considerations relevant to the exercise of each discretion have been identified in a number of past cases in the court. To no small extent, they overlap. The focus of the two discretions is, however, different. In particular, when the question of unfairness to the accused is under consideration, the focus will tend to be on the effect of the unlawful conduct on the particular accused whereas, when the question of the requirements of public policy is under consideration, the focus will be on ‘large matters of public policy’ and the relevance and importance of fairness and unfairness to the particular accused will depend upon the circumstances of the particular case.7

The High Court added that where both discretions are relied upon, ‘it will commonly be convenient for the court to address first the question whether the evidence should be excluded on the ground that its reception and use in evidence would be unfair’.8 In other words, the court should first exercise the fairness discretion, and only if it refuses to exercise that discretion in favour of the accused, will it need to consider the exercise of the public policy discretions. It would no doubt be an unusual case where a court held that the improprieties by which a confession was obtained were not such as to make it __________________________________________________________________________________________________________________________________________

7 8

Foster v R (1993) 113 ALR 1, 7. Ibid. 330

Discretions to Exclude Evidence unfair to the accused to allow the use of the confession, but were sufficiently serious as to call for the exclusion of the confession on public policy grounds.

18.4.3 When is evidence improperly or illegally obtained? Before the discretion needs to be exercised, it must first be established that the evidence was indeed improperly or illegally obtained. The burden of establishing this will obviously lie on the party seeking exclusion. It will not be enough to establish that the police behaved illegally or improperly. It must also be established that the evidence was obtained as a result of the illegal or improper conduct. In other words, there must be a causal connection between the illegality or impropriety and the obtaining of the evidence. Certain sections of the uniform evidence legislation effectively eliminate this requirement of a causal connection by providing that evidence will be taken to have been illegally or improperly obtained if it was preceded by certain specified illegal or improper conduct: see ss 138(2) and 139. The following are examples of evidence which might be held to have been illegally or improperly obtained: • a confession or admission made by a suspect who had not been properly cautioned: see s 139 of the uniform evidence legislation, Pollard v R (1992) and R v Dolan (1992); • a confession or admission made by a person who had not been informed of other statutorily conferred rights, such as the right to communicate with a lawyer: see Pollard v R (1992); • a confession or admission made by a suspect who had been illegally arrested or detained: see Cleland v R (1982), Williams v R (1986) and Foster v R (1993); • a confession or admission made during questioning in the course of which there was coercion: see s 138(2)(a) of the uniform evidence legislation, which refers to an ‘act or omission which was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning’; • a confession or admission made during questioning in the course of which there was some deception on the part of the person conducting the questioning, such as lying about the evidence against the person: see s 138(2)(b) of the uniform evidence legislation; • a confession or admission made by an Aboriginal suspect who had been questioned in the absence of a ‘prisoner’s friend’: see R v Anunga (1976); • real evidence, such as a murder weapon, discovered as a result of an illegally or improperly obtained confession; • evidence obtained through an illegal phone tap, or an unlawful search;

331

Principles of Evidence • evidence obtained in contravention of the requirements of a statutory regime regulating the gathering of such evidence: see R v Ireland (1970) and Bunning v Cross (1978); and • evidence in cases where the offence itself, or an element of the offence, has been procured by unlawful or improper conduct on the part of the police: see Ridgeway v R (1995) and R v D’Arrigo (1991). As will be apparent from the above examples, a determination of whether evidence has been illegally or improperly obtained will often require a consideration of the common law and statutory rules governing criminal investigation. These vary in their details from jurisdiction to jurisdiction: see, inter alia, Crimes Act 1914 (Cth), Part 1C; Crimes Act 1900 (NSW), Part 10; Crimes Act 1958 (Vic), Part III, Division 1, Sub-division 30A; Criminal Code 1899 (Qld), Part 8; Criminal Code 1913 (WA), Part V, Chapter XXVI and Part VIII, Chapter LX; Summary Offences Act 1953 (SA), ss 67–82; Criminal Law (Detention and Interrogation) Act 1995 (Tas) and Criminal Process (Identification and Search Procedure) Act 1976 (Tas); Crimes Act 1900 (ACT), Part X; and Police Administration Act 1979 (NT), Part VII. See also Alan Leaver, Investigating Crime, 1997, North Ryde, NSW: LBC Information Services.

18.4.4 The factors to take into account Once it has been established that the evidence was indeed obtained through an illegality or impropriety, the judge must balance the conflicting public interests. In Bunning v Cross (1978), Stephen and Aickin JJ listed a series of factors which the court should take into consideration in carrying out this balancing process. A very similar list of factors is contained in s 138(3) of the uniform evidence legislation. The factors listed in the uniform evidence legislation are as follows: • the probative value of the evidence (the more probative the evidence, the greater the interest in admitting it); • the importance of the evidence in the proceeding (the more important the evidence, the greater the interest in admitting it); • the nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding (the more serious the offence, etc the greater the interest in admitting the evidence); • the gravity of the impropriety or contravention of the law (the graver it was, the greater the interest in exclusion); • whether the impropriety or contravention was deliberate or reckless (if the contravention was merely accidental, then the interest in exclusion will be weak); in R v Truong (1996), for example, a police officer obtained evidence of an admission through the use of a listening device; the police officer believed, on the basis of a letter of advice from an officer of the DPP, that a warrant was unnecessary; the advice was wrong, but clearly the police 332

Discretions to Exclude Evidence officer had no intention of contravening the law, and the court refused to exclude the evidence; • whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; • whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention (if other proceedings have been, or are likely to be, taken then there may be less need for the court to ‘punish’ the impropriety by exclusion: see Ridgeway v R (1995)); • the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law (if the impropriety or illegality was necessary to, for example, preserve evidence of an evanescent nature, then it may be more readily excused). Another factor, not listed in s 138(3), but mentioned in Bunning v Cross (1978), and considered to be of considerable importance by judges in subsequent cases, relates to the intention and purpose of the legislation which has been breached. If the intention is to restrict police powers or provide safeguards to members of the public, then this is a factor which clearly favours exclusion: see Pollard v R (1992), and R v Elliott (1996). Every case is obviously different, but in Pollard v R (1992) – a case dealing with the applicability of the discretion to evidence of incriminating admissions – Deane J described the two ‘extremes’. At one extreme are cases ‘in which what is involved is an “isolated and merely accidental noncompliance” with the law or some applicable judicially recognised standard of propriety’.9 In such cases the balance of public interest is likely to favour admission. At the other extreme ‘are cases where the incriminating statement has been procured by a course of conduct on the part of the law enforcement officers which involved deliberate or reckless breach of a statutory requirement imposed by the legislature to regulate police conduct in the interests of the protection of the individual and the advancement of the due administration of criminal justice’.10 Here the balance of public interest is clearly likely to favour exclusion.

18.5

Summary

There are a number of exclusionary discretions at both common law and under the uniform evidence legislation: • a discretion to exclude (and under the uniform evidence legislation, limit the use of) evidence on the grounds that its prejudicial effect outweighs its __________________________________________________________________________________________________________________________________________

9 Pollard v R (1992) 176 CLR 177, 203–04. 10 Ibid, 204. 333

Principles of Evidence probative value; at common law this discretion is restricted to evidence led by the prosecution in criminal proceedings, under the uniform evidence legislation, it is of general application; • a discretion to exclude evidence on the grounds that it might be misleading or confusing or cause or result in undue waste of time; this discretion is only available under the uniform evidence legislation, and is of general application; • a discretion to exclude illegally or improperly obtained evidence on the grounds that its admission would be contrary to the public interest; this discretion, which is of general application, requires the court to balance the competing public interests in admitting and excluding the evidence.

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PART III PROOF

OVERVIEW OF PART III This final part of the book contains three chapters concerned with various aspects of proof. It corresponds to the fourth part of the uniform evidence legislation. Chapter 19: The Burden and Standard of Proof deals with two aspects of proof: the allocation of the obligation to prove particular facts in issue in both civil and criminal proceedings, and the question of the degree to which those facts must be proved. Chapter 20: Matters of which Proof need not be Given discusses two processes by which a fact can be taken as proved without any evidence of it having been led. Chapter 21: Corroboration and Judicial Warnings discusses several different categories of evidence which have been identified under either or both of the common law and the uniform evidence legislation as giving rise to certain dangers, and the judicial warnings which are required in respect of them. Finally, although it is has not been made the subject of a chapter, it is perhaps worth mentioning Part 4.3 – Facilitation of Proof – of the uniform evidence legislation. The provisions in Part 4.3 will be of immense assistance to litigators in making easier the proof of a variety of different matters such as the contents of public documents, seals and signatures and computerproduced evidence. Many of these provisions apply, by virtue of s 5 of the legislation, to proceedings in all Australian courts.

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CHAPTER 19

THE BURDEN AND STANDARD OF PROOF

19.1

Introduction

This chapter is concerned with two aspects of proof: the burden of proof and the standard of proof. The allocation of the burden of proof determines which party to a proceeding is under an obligation to prove, or to lead evidence of, a particular fact in issue; the standard of proof is concerned with the question of the degree to which the facts in issue must be proved. Different answers must be given to these questions depending on whether the proceedings are civil or criminal in nature; the uniform evidence legislation does not, however, appear to make any changes to the common law rules in relation to these questions.

19.2

The burden of proof

The burden of proof is concerned with the following question: which party has the obligation of proving (or disproving) a particular fact or facts in issue? The question is important because it determines which party is under an obligation to lead evidence of a particular fact, and determines which party will lose if the court is not satisfied that the fact has been proved. Although it is commonly dealt with in evidence textbooks, the allocation of the burden of proof is actually a matter for the relevant area of substantive law, rather than the law of evidence. The uniform evidence legislation, for example, says nothing about the burden of proof, although it does deal with the standard of proof. For this reason, the discussion here will be fairly brief. It is common to distinguish between two different types of burden of proof. There are numerous different ways of referring to these different burdens, but the most widely used are probably the ‘legal’ burden and the ‘evidential’ burden.

19.2.1 The legal burden The legal burden determines which party fails if the court finds that a particular fact in issue has not been proven to the standard required. In civil proceedings, the general rule is that the legal burden of proving a particular fact in issue lies on the party which alleges that fact; in other words, those who allege must prove. The plaintiff therefore carries the burden of proving the facts pleaded in the statement of claim which constitute the cause of action. The defendant carries the burden of proving any further facts pleaded in the statement of defence which would establish the existence of a defence. Where the statement of defence merely involves the denial of the facts pleaded by the 339

Principles of Evidence plaintiff (as opposed to the pleading of further facts constituting a defence) the burden of proof is entirely on the plaintiff. In a negligence action, for example, the plaintiff would have the burden of proving that the defendant was negligent; and the defendant would have the burden of proving that the plaintiff was guilty of contributory negligence, or had voluntarily assumed the risk. In criminal proceedings the accused is ‘presumed innocent’. The presumption of innocence means that the prosecution generally has the burden of proof in criminal proceedings: the charge fails if they do not prove, to the standard required, all of the facts which make up the charge: Woolmington v DPP (1935). The general rule in criminal proceedings, therefore, is that the prosecution carries the legal burden of proving (or disproving) every fact in issue. This general rule extends to defences such as self-defence or provocation. This means that if the issue of self-defence or provocation is raised, then the prosecution must not only prove the facts which would constitute the offence, but must also prove that the accused was not acting in self-defence or under provocation. The main common law exception to this general rule is the defence of insanity: the burden of proving insanity lies on the accused. Some statutes also impose a burden of proving a fact on the accused. For example, a statute might require a person charged with unlawful possession of a controlled substance to prove that their possession of the substance was not ‘unlawful’, rather than requiring the prosecution to prove that it was.

19.2.2 The evidential burden To say that the prosecution carries the legal burden of proof in relation to defences such as self-defence is not, however, the end of the story. The accused also bears a burden: the burden of leading sufficient evidence to raise the issue of self-defence properly. Unless the judge is satisfied that there is sufficient evidence to leave the issue of self-defence to the jury, it will not be left for their consideration. Wigmore called this the burden of ‘passing the gauntlet of the judge’, as distinct from the burden of persuading the jury.1 It is this burden which is referred to as the ‘evidential burden’. The evidential burden, then, is the duty of leading sufficient evidence in relation to a particular fact so as properly to make that fact an issue in the proceedings. In civil proceedings, the general rule is that evidential burden follows the legal burden. In other words, if a party carries the burden of proving a particular fact in issue, then it also carries the burden of leading evidence in relation to that issue. In criminal proceedings, on the other hand, the general rule is the same as that which applies in respect of the legal burden in civil proceedings: the party which alleges must lead evidence in support of the __________________________________________________________________________________________________________________________________________

1

Wigmore, J, Wigmore on Evidence, 3rd edn, 1940, Boston: Little, Brown & Co, § 2487. 340

The Burden and Standard of Proof allegation. This means that the defence carries the evidential burden in relation to any facts which would constitute a defence; while the prosecution obviously carries the evidential burden in relation to the facts which would constitute the offence.

19.2.3 The burden of proof on a voir dire Often the admissibility of evidence turns on questions of fact. At common law, for example, a confession is only admissible if it was made voluntarily. Similarly, under the uniform evidence legislation, a confession made by the accused is not admissible unless the court is satisfied that its making was not influenced by violent, oppressive, inhuman or degrading conduct: s 84(1). The burden of proving the facts which determine the admissibility of the evidence varies from rule to rule. As a general guide, however, if the class of evidence to which the item of evidence belongs is said to be inadmissible unless particular facts are found to exist then the burden of proving those facts will lie on the party seeking to adduce the evidence. Similarly, if the class of evidence to which the item of evidence belongs is said to be admissible unless particular facts are found to exist, then the burden of proving those facts will usually lie on the party opposing the admission of the evidence. In other words, the way in which the rule is expressed will usually provide significant guidance as to where the burden of proof lies. Under s 84(1) of the uniform evidence legislation, for example, the burden is clearly on the prosecution to prove that the making of the admission was not influenced by such conduct. Similarly, at common law, given that confessions by the accused are prima facie inadmissible, the burden of proving voluntariness obviously lies on the prosecution. By burden here is meant legal burden, because failure to satisfy the court to the standard required will result in the party which carries the burden of proof either having the evidence they seek to adduce ruled inadmissible or having the evidence admitted over their objection. A burden akin to an evidential burden may, however, be imposed on the other party. According to s 84(2) of the uniform evidence legislation, for example, s 84(1) only applies ‘if the party against whom the evidence of the admission is adduced has raised in the proceeding an issue about whether the admission or its making were so influenced’. While this does not appear to require such a party actually to lead evidence of violent, oppressive, inhuman or degrading conduct, it does clearly impose on them a burden of raising the issue. Similarly, at common law a voir dire into the voluntariness of an admission will normally only be held if the defence has raised the question of voluntariness.

341

Principles of Evidence

19.3

The standard of proof

The standard of proof is concerned with the question of the degree to which the tribunal of fact must be satisfied of the existence of a particular fact in issue before it can find that the fact does exist. The standard of proof is dealt with in Part 4.1 of the uniform evidence legislation, which essentially restates the common law rules. The standard of proof that we are here concerned is that which corresponds to the legal, rather than the evidential, burden of proof. Thus the uniform evidence legislation consistently talks about the degree to which the ‘case of a party’ has been proved, where ‘case of a party’ is defined in the dictionary as ‘the facts in issue in respect of which the party bears the legal burden of proof’.

19.3.1 Civil proceedings In civil proceedings the standard of proof is ‘on the balance of probabilities’. As s 140(1) of the uniform evidence legislation puts it: In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

The same standard is applied at common law. The standard is often translated as meaning ‘more likely than not’. This means that if the tribunal is not satisfied that the case of the plaintiff is more probable than the case of the defendant, then it must find for the defendant. Actual belief in the case of the party is not necessary.2 Although the standard is expressed in terms of probabilities, however, the tribunal of fact is not actually required to carry out mathematical calculations of probability in order to decide which of the competing hypotheses is more probable. The standard applies even in cases where the action involves an allegation of criminal conduct or fraud on the part of one of the parties: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992). Nevertheless, as the High Court recognised in Neat Holdings, ‘the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove’; and, given the ‘conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct’, ‘a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct’.3 The uniform evidence legislation provides scope for the same approach to be taken, with s 140(2) glossing s 140(1) with the following words: Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: __________________________________________________________________________________________________________________________________________

2 3

See Evidence, ALRC 26, 1985, Vol 1 [998]. Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449, 450. 342

The Burden and Standard of Proof (a) the nature of the cause of action or defence; and (b) the nature of the subject matter of the proceeding; and (c) the gravity of the matters alleged.

19.3.2 Criminal proceedings In a criminal proceeding, the prosecution case must, of course, be proved ‘beyond reasonable doubt’: see s 141(1) of the uniform evidence legislation. Any facts in relation to which the accused bears the legal burden of proof (such as a defence of insanity) need, however, only be proved to the civil standard. Section 141(2) of the uniform evidence legislation thus provides that: In a criminal proceeding, the court is to find the case of a defendant proved if it is satisfied that it has been proved on the balance of probabilities.

When directing a jury on the criminal standard of proof, a judge should generally refrain from attempting to explain what is meant by ‘beyond reasonable doubt’: see Green v R (1971). Nevertheless, the following comments of Lord Denning are perhaps helpful to practitioners and students, if not jurors: Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt ... If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence ‘of course it is possible but not in the least probable’, the case is proved beyond reasonable doubt, but nothing short of that will suffice.4

In the context of a case based on circumstantial evidence, the tribunal is only entitled to find that guilt has been proven beyond a reasonable doubt if it is satisfied that there is no rational hypothesis consistent with innocence: see Chamberlain v R (No 2) (1984) and Shepherd v R (1990). In other words, guilt is only proven beyond reasonable doubt if the circumstances are such as to render unreasonable any hypotheses consistent with innocence. If a hypothesis consistent with innocence cannot be excluded as unreasonable, then the accused must be acquitted. Moreover, where a particular fact constitutes an ‘indispensable link in a chain of reasoning towards an inference of guilt’, then that fact must also be proven beyond a reasonable doubt.5

19.3.3 Facts relevant to the admissibility of evidence Where the party seeking to adduce an item of evidence is required to prove a particular fact or facts before the evidence can be admitted, the standard of proof required in relation to that fact or facts is the civil standard of ‘on the __________________________________________________________________________________________________________________________________________

4 5

Miller v Minister of Pensions [1947] 2 All ER 372, 373. Shepherd v R (1990) 170 CLR 573, 579 (Dawson J); for a discussion of what this actually means see Hamer, D, ‘The Continuing Saga of the Chamberlain Direction: Untangling the Cables and Chains of Criminal Proof’ (1997) 23 Monash Law Review 43. 343

Principles of Evidence balance of probabilities’. This is so even in criminal proceedings. If, for example, the prosecution are seeking to adduce evidence of a confession allegedly made by the accused, and there is some dispute in relation to the confession, then a voir dire into the admissibility of the confession will be held. At common law, a confession is only admissible if it was made voluntarily; the prosecution is therefore required to prove that the confession was voluntary. The standard to which it must do so is the civil standard. The position is the same under the uniform evidence legislation, with 142(1) providing that: Except as otherwise provided by this Act, in any proceeding the court is to find that the facts necessary for deciding: (a) a question of whether evidence should be admitted or not admitted, whether in the exercise a discretion or not; or (b) any other question arising under this Act; have been proved if it is satisfied that they have been proved on the balance of probabilities.6

In determining whether it is so satisfied, the court is required by s 142(2) to take into account ‘the importance of the evidence in the proceeding’ and ‘the gravity of the matters alleged in relation to the question’.

19.4

Summary

19.4.1 Civil proceedings In civil proceedings, at both common law and under the uniform evidence legislation: • the legal burden of proving facts in issue rests on the party which alleges those facts; this means that the burden of proving the facts which constitute the cause of action rests on the plaintiff, and that the burden of proving any facts which would constitute a defence rests on the defendant; • the evidential burden follows the legal burden; and • the standard to which facts in issue must be proved before they can be found to exist is ‘on the balance of probabilities’.

__________________________________________________________________________________________________________________________________________

6

Sections 57(1), 87(1), 88, 125(2), 131(3) and (4) and 146(2) of the legislation do provide otherwise, setting a standard of either reasonable openness, or the existence of reasonable grounds. 344

The Burden and Standard of Proof

19.4.2 Criminal proceedings In criminal proceedings, at both common law and under the uniform evidence legislation: • the legal and evidential burden of proving the facts which constitute the offence rests on the prosecution; • in general, the legal burden of disproving the facts which would constitute a defence also rests on the prosecution; • there are statutory exceptions to this general rule; the only common law exception, however, is in relation to the defence of insanity; • the accused is, however, under an evidential burden in relation to all defences, ie the issue of the defence will not be left to the jury unless the judge is satisfied that the defence is open on the evidence; • where the legal burden of proving facts in issue rests on the prosecution, the standard to which those facts must be proved is ‘beyond reasonable doubt’; • in cases based on circumstantial evidence, this standard is only reached if the evidence renders unreasonable all hypotheses consistent with innocence; • where the legal burden of proving facts in issue rests on the defence, the standard to which those facts must be proved is the standard of ‘on the balance of probabilities’; • the same standard – ‘on the balance of probabilities’ – also applies to facts relevant to the admissibility of evidence.

345

CHAPTER 20

MATTERS OF WHICH PROOF NEED NOT BE GIVEN

20.1

Introduction

Some facts are so obvious, or well known, or indisputable, that requiring them to be proved would simply be a waste of time. The doctrine of judicial notice may operate in respect of such facts, to relieve the party whose case depends on the establishment of such a fact from leading evidence of it. Other facts are exempted from the requirement of proof by means of the pleading process whereby a party may admit the existence of certain facts in order to identify more precisely the points of dispute between themselves and their opponent. Each of these two processes by which facts can be exempted from the requirement of proof will be considered in turn.

20.2

The doctrine of judicial notice

The doctrine of judicial notice is a common law doctrine of which the core is clear and uncontroversial, but the fringes of which are extremely murky.1 Charting the murky fringes of the doctrine is, however, unnecessary for the purposes of this book. For that reason, this chapter largely follows the approach of the uniform evidence legislation, which restates the common law doctrine in a simplified and clarified form. Under the legislation, there are four main categories of fact which can be noticed judicially. Before turning to these categories, however, the way in which judicial notice works will be discussed.

20.2.1 The effect of judicial notice When a fact is one of which judicial notice can be taken, a party is relieved of the obligation of leading evidence to prove the fact. A party may, thus, request that the judge take notice of a particular fact either during the presentation of its case, or after its close; in the former case, the request will be intended to relieve the party of the obligation to lead evidence of the fact; in the latter, the request may be intended to cure an omission by the party by having the judge take notice of a fact which the party neglected to prove. Where a fact is one of which judicial notice can be taken, this does not necessarily prevent a party from leading evidence of that fact, or even attempting to prove that the fact is untrue. This certainly appears to be contemplated by the uniform evidence legislation in relation to the second and third categories below, in relation to which s 144(4) provides that: __________________________________________________________________________________________________________________________________________

1

See Evidence, ALRC 26, 1985, Vol 2, Appendix C, Chapter 14. 347

Principles of Evidence The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced.

This provision is consistent with the approach at common law: see, for example, Gordon M Jenkins & Associates Pty Ltd v Coleman (1989). Of course, as the Australian Law Reform Commission pointed out: In the vast majority of cases the issue will never arise because the tribunal of fact will be applying the knowledge it shares with the rest of the community. Where an issue does arise, however, as to the taking of judicial notice of a specific fact, it must be possible for the parties to place whatever material they think fit before the tribunal of fact on the issues of whether the proposition is one of which judicial notice should be taken and what precise proposition should be accepted. There would seem to be no reason in principle why this could not be done by producing formal evidence.2

20.2.2 Australian law The state of the law in an Australian jurisdiction is a matter of which proof need not be given, and about which a judge is entitled to inform him or herself in any way he or she sees fit. The judge is not, for example, bound to accept the submissions put to him or her by counsel, and is entitled to carry out his or her own research into the state of the authorities. Cross on Evidence argues, persuasively, that the state of the law is not a factual matter capable of proof by evidence, and that it is therefore inappropriate to regard the means by which the judge informs him or herself of the state of the law as a process of judicial notice.3 Nevertheless, the fact that evidence is unnecessary clearly makes the process akin to that by which facts are judicially noticed, and makes ‘judicial notice’ a convenient heading under which to place the topic. Section 143(1) of the uniform evidence legislation states the rule as follows: Proof is not required about the provisions and coming into operation (in whole or in part) of: (a) an Act, a State Act, an Act or Ordinance of a Territory or an Imperial Act in force in Australia; or (b) a regulation, rule or bylaw made, or purporting to be made, under such an Act or Ordinance; or (c) a Proclamation or order of the Governor General, the Governor of a State or the Administrator or Executive of a Territory made, or purporting to be made, under such an Act or Ordinance; or (d) an instrument of a legislative character (for example, a rule of court) made, or purporting to be made, under such an Act or Ordinance, being an __________________________________________________________________________________________________________________________________________

2 3

Evidence, ALRC 26, 1985, Vol 1 [977]. Heydon, J, Cross on Evidence, Australian edition, North Ryde, NSW: Butterworths [3075]. 348

Matters of which Proof need not be Given instrument that is required by or under a law to be published, or the making of which is required by or under a law to be notified, in any government or official gazette (by whatever name called).

Section 143(2) further provides that a ‘judge may inform himself or herself about those matters in any way that the judge thinks fit’. According to the Australian Law Reform Commission, s 143 ‘reflects existing law but simplifies it’.4 This simplified version of the law is sufficient for present purposes. In any case, s 5 of the Commonwealth Evidence Act 1995 purports to apply s 143 to all proceedings in Australian courts, including proceedings in courts in jurisdictions which have not adopted the uniform evidence legislation. Assuming s 5 to be constitutionally valid, s 143 would appear to have entirely replaced the common law in relation to judicial notice of Australian law. It should be emphasised, of course, that these provisions have no relevance to proof of foreign law: that is a matter for evidence (but one that falls beyond the scope of this book).

20.2.3 Facts forming part of common knowledge Section 144(1)(a) of the uniform evidence legislation provides that proof is not required about ‘knowledge that is not reasonably open to question’ and that is ‘common knowledge in the locality in which the proceeding is being held or generally’. This category contains facts which are so well known, either generally or locally, that there is no point in requiring proof of them. The judge is therefore entitled to ‘acquire knowledge of that kind in any way that the judge thinks fit’: s 144(2). Moreover, the court (including the jury if there is one) is under an obligation ‘to take knowledge of that kind into account’: s 144(3). These provisions reflect the common law rules about matters of common knowledge. The key to determining whether or not a fact falls within this category is the requirement that the fact must ‘not [be] reasonably open to question’. An oft cited example of general common knowledge which would satisfy this test is the fact that Christmas is celebrated on 25 December. An example of local common knowledge which would satisfy this test, would be the fact (in proceedings held in Melbourne) that the Victorian Arts Centre is on St Kilda Road, or that the Tullamarine Freeway leads to the airport. Cross on Evidence lists a series of examples of matters which courts have been either prepared or not prepared to judicially notice,5 but it is probably more useful to reproduce the following general comments about the kind of facts of which judicial notice may be taken: __________________________________________________________________________________________________________________________________________

4 5

Evidence, ALRC 26, 1985, Vol 1 [973]. See Heydon, J, Cross on Evidence, Australian edition, North Ryde, NSW: Butterworths [3020]; see also Evidence, ALRC 26, 1985, Vol 2, Appendix C [268]–[269]. 349

Principles of Evidence ... judges are by training and, perhaps occupational occupation, cautious creatures. Judges tend to err on the side of conservatism, so that it is only facts which are not seriously disputable which fall within the doctrine. Thirdly, the readiness of the judicial mind to take note of any given fact will depend upon the time at which the exercise is undertaken. A fact which was arcane a generation ago may be a commonplace today. This is of particular relevance in the case of scientific facts.6

Where the judge does intend to take judicial notice of a fact, s 144(4) of the uniform evidence legislation requires the judge to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced.

20.2.4 Facts which can be verified by reference to an authoritative document Section 144(1)(b) provides that proof is not required about ‘knowledge that is not reasonably open to question’ and that is ‘capable of verification by reference to a document the authority of which cannot reasonably be questioned’. Sub-sections (2), (3) and (4), which were discussed under the previous heading, also apply to this category of fact. The main difference between this category and the previous one is that with this category, reference to an authoritative document may be necessary in order to discover or confirm the fact of which judicial notice is to be taken; where facts form part of common knowledge, on the other hand, then there is no need for such an inquiry to be conducted. Examples of facts falling within this category include the time at which the sun rose or high tide was reached in a particular location on a particular day. Such facts can be proved by reference to publications such as meteorological almanacs or tide charts. Again the key to the category is that the knowledge must ‘not [be] reasonably open to question’. Indisputable scientific, medical or historical facts might therefore fall within this category; controversial views clearly would not. In Horman v Bingham (1972), for example, a magistrate had made factual findings about the position of seeds on cannabis plants without having received any evidence on the matter; Newton J approved of this approach, commenting that: It is open to a court to take judicial notice of an indisputable botanical fact such as the position of seeds upon a plant, at all events in a case where the fact is well known to all persons having any acquaintance with the plant in question, and may readily be verified by means of standard works of reference ...7

__________________________________________________________________________________________________________________________________________

6 7

Heydon, J, Cross on Evidence, Australian edition, North Ryde, NSW: Butterworths [3010]. Horman v Bingham [1972] VR 29, 34. 350

Matters of which Proof need not be Given Similarly, in Timbury v Coffee (1941), Dixon J referred to medical texts in order to inform himself of the consequences of alcoholism. In addition to the uniform evidence legislation provisions, courts in Western Australia, South Australia and Tasmania are expressly authorised to consult authoritative works dealing with matters of public history, literature, science or art.8

20.2.5 Matters of State Section 145 of the uniform evidence legislation leaves intact the common law rules relating to judicial notice of matters of State. It is in the following terms: This part does not exclude the application of the principles of common law and equity relating to the effect of a certificate given by or on behalf of the Crown with respect to a matter of international affairs.

This category includes issues such as whether a particular country is a sovereign State and whether a particular body which purports to be the government of a State should be recognised as such: see Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) (1967). A certificate from the executive on such a matter is effectively conclusive. The reason for this is clearly to avoid inconsistency on such matters between the executive and judicial arms of government. It was for this reason that the Australian Law Reform Commission declined to interfere with the existing rules, pointing out that because the issues involved concerned ‘the powers of the courts, in particular the High Court, to review legislation and executive actions’, they ‘should be considered in a reference on international law and constitutional law not a reference on evidence law’.9

20.3

Formal admissions and agreed facts

This part of the chapter is concerned with those facts of which evidence need not be given because they have been the subject of either a formal admission by one of the parties or an agreement as to their existence by all the parties.

20.3.1 Civil proceedings 20.3.1.1 Formal admissions The issue of whether the formal admissions contained in pre-trial pleadings should be regarded as evidence is one on which the common law and the uniform evidence legislation differ. The Australian Law Reform Commission took the view that ‘pleadings should not be placed in a special category – it should be a question of fact in the circumstances whether the particular __________________________________________________________________________________________________________________________________________

8 9

See Evidence Act 1906 (WA), s 72; Evidence Act 1929 (SA), 64; and Evidence Act 1910 (Tas), s 67. Evidence, ALRC 26, 1985, Vol 1 [977]. 351

Principles of Evidence statement constitutes an admission’. 10 Accordingly, the definition of ‘admission’ contained in the uniform evidence legislation was deliberately drafted to include the formal admissions made by the parties to civil proceedings in their pre-trial pleadings. Hunt J had taken a similar view of the effect of pre-trial pleadings in Singleton v John Fairfax & Sons Ltd (1982); but the orthodox common law view – that the pleadings are not a form of evidence, but simply a method of defining the issues between the parties – was reasserted by the High Court in Laws v Australian Broadcasting Tribunal (1990), with Mason CJ and Brennan J commenting that: The suggestion that pleadings should be treated in the same way as any other form of admissions fails, in our view, to take account of the function and object of pleadings, when they are not required to be verified, in outlining the party’s case and defining the issues to be tried. Especially is this so in the case of pleading defences. A defendant is entitled to put a plaintiff to proof of his or cause of action and to raise alternative matters of defence which may possibly answer the plaintiff’s claim, without asserting in an absolute sense the truth or the correctness of the particular matters pleaded.11

One of the justifications for this approach is to avoid ‘unprofitable collateral inquiries into the circumstance in which the assertion was included in the pleading’.12 Such inquiries would be necessary if it were to be shown that the pleadings satisfied the requirements for the admissibility of admissions discussed in Chapter 9: Admissions. In most cases, however, the question of whether admissions contained in pleadings act as a form of evidence of the admitted fact, or instead relieve the parties of the obligation to lead evidence of the admitted fact, will make no practical difference. On either approach, further evidence of the admitted fact will be unnecessary, and may even be considered irrelevant on the basis that the admission means that the fact is not a fact ‘in issue’. Where the difference in approach may make a difference in outcome, however, is if the court grants a party leave to change its pleadings by retracting an admission which it has previously made. Under the uniform evidence legislation approach where admissions are evidence, the fact that a fact in issue has been admitted will continue to constitute evidence of the admitted fact even after the admission has been retracted. This is no different from the situation with respect to informal admissions, which are, of course, frequently repudiated. The situation at common law is not so clear. If a formal admission is not evidence of the fact admitted, then it is difficult to see how its

__________________________________________________________________________________________________________________________________________

10 See Evidence, ALRC 26, 1985, Vol 1 [755]. 11 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, 86. 12 See ibid, 86, referring to Stohl Aviation v Electrum Pty Ltd (1984) 5 FCR 187. 352

Matters of which Proof need not be Given retraction could make it so. Cross on Evidence argues that it does, but is only able to offer Wigmore as authority.13 20.3.1.2 Agreed facts Section 191 of the uniform evidence legislation also makes provision for the parties to ‘agree’ facts; s 149AB of the Evidence Act 1958 (Vic) is in substantially identical terms. These sections are intended to provide the parties with a further mechanism for limiting the number of facts which are in dispute at the trial and thereby containing the costs associated with the litigation. An ‘agreed fact’ is a ‘fact that the parties to a proceeding have agreed is not, for the purposes of the proceeding, to be disputed’: s 191(1). Sub-section (3) imposes requirements about proof of the agreement. Where a fact has been agreed, then ‘evidence is not required to prove the existence’ of the fact, and ‘evidence may not be adduced to contradict or qualify’ the fact, unless the court gives leave: s 191(2).

20.3.2 Criminal proceedings The absence of pre-trial pleadings in criminal proceedings reduces the scope for the parties to limit the issues at trial through the making of formal admissions. Nevertheless, all Australian jurisdictions now permit accused persons to make admissions of fact.14 If the evidence which would otherwise have been led to prove the fact was potentially prejudicial, then making the admission provides a means of avoiding having the evidence admitted. Under the uniform evidence legislation and in Victoria the parties to criminal proceedings may also make agreements as to the facts, in the same way that the parties to civil proceedings can.15 When a fact has been admitted or agreed, no further evidence is necessary to establish the fact. Although the statutory provisions do not themselves prohibit a party from leading such evidence if it chooses to do so, such evidence might well be considered to be either irrelevant or time-wasting, given that the fact in proof of which the evidence was being adduced was no longer ‘in issue’.16 If the fact has been agreed, then the provisions do not permit either party to lead evidence to contradict or qualify the fact without the court’s leave. If the fact has only been admitted, however, then it appears that a __________________________________________________________________________________________________________________________________________

13 See Heydon, J, Cross on Evidence, Australian edition, North Ryde: NSW: Butterworths [3160], referring to Wigmore, J, Wigmore on Evidence, 3rd edn, 1940, Boston: Little, Brown, § 1067. 14 See s 184 of the uniform evidence legislation; Evidence Act 1958 (Vic), s 149A and Crimes (Criminal Trials) Act 1993 (Vic), ss 4(c) and 11; Criminal Code 1899 (Qld), s 644; Evidence Act 1906 (WA), s 32; Evidence Act 1929 (SA), s 34; Evidence Act 1910 (Tas), s 109; and Criminal Code 1983 (NT), s 379. 15 See s 191 of the uniform evidence legislation; and Evidence Act 1958 (Vic), s 149AB. 16 See R v Smith [1981] 1 NSWLR 193; and Macrae v R (1995) 80 A Crim R 380. 353

Principles of Evidence party would be permitted to lead evidence to contradict the fact; in such a case the admission would, however, remain admissible as evidence of the fact.

20.4

Summary

Normally facts must be proved by means of evidence. Facts may be exempted from the process of proof, however, if: • they are facts of which judicial notice can be taken; or • they are facts which have been formally admitted by one of the parties to the proceeding; or • they are facts the existence of which has been formally agreed by all the parties to the proceeding; • at both common law and under the uniform evidence legislation, judicial notice can be taken of the following kinds of facts: ❍ facts relating to the state of the law in an Australian jurisdiction; ❍ facts which form part of common knowledge, either generally or locally, and which are not reasonably open to question; ❍ facts which can be verified by reference to an authoritative document; ❍ facts relating to certain matters of state; • in civil proceedings, a party may, through its pleadings, formally admit facts; the making of such an admission relieves the party’s opponent of the need to adduce evidence to prove the admitted fact; and • in criminal proceedings, there are now also statutory provisions in all Australian jurisdictions which allow the accused formally to admit facts; • under the uniform evidence legislation and in Victoria, there are also provisions allowing the parties to both civil and criminal proceedings to enter into agreements about the existence of facts; again, the existence of such an agreement relieves a party of the need to adduce evidence to prove the agreed fact.

354

CHAPTER 21

CORROBORATION AND JUDICIAL WARNINGS

21.1

Introduction

As was pointed out in the introductory chapter, there are essentially two ways of dealing with unreliable evidence. The first is make the evidence the subject of an exclusionary rule. The various rules which take this approach were considered in Part II: Admissibility of Evidence. The second approach is to make the evidence the subject of a judicial warning designed to alert the jury to the potential dangers of acting on it. It is this second approach which is the subject of this chapter. The chapter begins by looking at the form which judicial unreliability warnings take, both at common law and under the uniform evidence legislation. It then examines the concept of corroboration, which is a key part of the common law’s approach to unreliable evidence. The bulk of the chapter is then concerned with a discussion of each of the different kinds of evidence in respect of which a judicial warning may now be required.

21.2

The form of judicial warnings

21.2.1 Judicial warnings at common law There are essentially three different approaches at common law or under statutes (other than the uniform evidence legislation) which have operated at various times in Australian jurisdictions. The first shall be referred to in this book as a corroboration requirement. Under this approach, the jury must be informed that they are not entitled to accept the testimony requiring corroboration unless they find that it has indeed been corroborated. It is the task of the judge to identify to the jury the evidence which is, if the jury accepts it, capable of corroborating the evidence which requires corroboration (as to which, see below under the heading ‘The nature of corroboration’). Corroboration requirements are clearly an obstacle to proof which may prevent the jury from acting on the testimony of a witness even if satisfied that the witness is creditworthy. The second approach shall be referred to in this book as a corroboration warning requirement. Under this approach, the judge is required to warn the jury of the dangers of acting on the evidence unless it is corroborated; and is also obliged to identify to the jury the evidence which is, if accepted, capable of corroborating the evidence which requires corroboration. But – and this is the fundamental difference between this approach and the first approach – the jury is still free to accept the evidence even if it finds that it has not been 355

Principles of Evidence corroborated. This type of warning is sometimes said to be required as a ‘matter of law’, and sometimes as a ‘matter of practice’. The difference mainly relates to the effect on an appeal of a failure to give the required warning. If the warning was required as a matter of law, then failure to give the warning is an error of law, and the conviction will be quashed unless the appellate court is satisfied that no substantial miscarriage of justice occurred. If, on the other hand, the warning was only required as a matter of practice, then the failure to give it is not an automatic ground of appeal; the appellant must still establish that there has been a miscarriage of justice: see the discussion of appeals in Chapter 1. The benefits of corroboration warnings are, in fact, highly doubtful. The fact that the judge must direct the jury on the technicalities of whether a particular item of evidence is capable of providing corroboration may clearly divert the jury’s attention from the ostensible point of corroboration warnings: to ensure that the jury is aware of the dangers of acting on certain kinds of potentially unreliable evidence. Moreover, by pointing out all the potentially corroborative evidence to the jury, the warning may actually persuade the jury that the dangers usually associated with the particular class of evidence can be safely disregarded in the case at hand. Instead of reducing the risks associated with unreliable evidence, therefore, corroboration warnings may actually increase them, a view supported by the findings of the LSE Jury Project.1 The third and more recent approach shall be referred to in this book as an unreliability warning requirement. Under this approach, the judge is either required to inform the jury of the dangers associated with the class of unreliable evidence in general; or to inform the jury of the particular dangers to which the particular item of evidence might give rise; or to inform the jury of both the general and the particular dangers associated with the item of evidence. The warning need not, however, include any reference to the concept of corroboration or to the evidence which would be capable of corroborating the unreliable evidence.

21.2.2 Judicial warnings under the uniform evidence legislation The Australian Law Reform Commission took the view that corroboration warning requirements should be eliminated, commenting that corroboration warnings ‘distract attention from the issue of the reliability of the evidence in question’ and the directions they require ‘are so complex that they are likely to be ignored’.2 Part 4.4 of the uniform evidence legislation therefore abolishes all common law corroboration requirements except those which apply to prosecutions for perjury. Section 164(1) abolishes all corroboration __________________________________________________________________________________________________________________________________________

1 2

See Sealy, AP and Cornish, WR, ‘Juries and the Rules of Evidence’ [1973] Crim LR 208. Evidence, ALRC 26, 1985, Vol 1 [1015]. 356

Corroboration and Judicial Warnings requirements; s 164(2) preserves the existing law relating to perjury prosecutions; and s 164(3) abolishes all corroboration warning requirements. In place of these rules, s 165 of the legislation (being the only section in Part 4.5 of the legislation) imposes a requirement that an unreliability warning be given in respect of possibly unreliable evidence. Sub-section (1) provides that s 165 applies to ‘evidence of a kind that may be unreliable’, including evidence which falls within several broadly described categories of evidence, which may be unreliable, or which may be prone to having their probative value overestimated. Although some of these categories of evidence are only adduced in criminal proceedings, Part 4.5 is actually of general application; that is, it applies in both civil and criminal proceedings, and irrespective of which party adduced the evidence in question. The warning requirement is imposed by s 165(2), which provides that: If there is a jury and a party so requests, the judge is to: (a) warn the jury that the evidence may be unreliable; and (b) inform the jury of matters that may cause it to be unreliable; and (c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.

No particular form of words is required: s 165(4). The judge need not give such a warning, however – even if a party requests it – ‘if there are good reasons for not doing so’: s 165(3). As the Australian Law Reform Commission pointed out, ‘the section, properly construed, clearly assumes that evidence coming within the categories may be reliable and unlikely to be given incorrect weight’.3 If the judge took this view of the evidence, this would clearly provide a reason for not giving a warning; the Australian Law Reform Commission also suggested that in ‘deciding whether there are reasonable grounds for not giving a warning the judge could consider matters such as the other evidence before the court and the importance of the evidence’.4

21.2.3 The nature of corroboration The underlying justification for corroboration requirements is the idea that it may only be safe to act on an item of unreliable evidence if that evidence is ‘corroborated’ or confirmed by other evidence in the case. As Lord Morris said in DPP v Hester (1973), ‘The essence of corroborative evidence is that one creditworthy witness confirms what another creditworthy witness has said’.5 The apparently simple idea that it may be unsafe to act on certain kinds of evidence unless they are confirmed by other evidence has, however, become a maze of technicality. The complexity arises in relation to both sides of the __________________________________________________________________________________________________________________________________________

3 4 5

Evidence, ALRC 26, 1985, Vol 1 [1019]. Ibid [1017]. DPP v Hester [1973] AC 296, 315. 357

Principles of Evidence corroboration coin: first, in fixing the boundaries of the categories of evidence which require corroboration; and secondly, in determining the nature of the evidence which is capable of providing corroboration. The former issue is discussed in the second part of this chapter; the latter will be discussed now. The nature of what is required before one item of evidence can be held capable of corroborating another was stated as follows by Lord Reading in the classic case of R v Baskerville (1916): What is required is some additional evidence rendering it probable that the story of the accomplice is true and that it is reasonably safe to act upon it ... We hold that evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it.6

This formulation has given rise to numerous difficult questions. With corroboration being a concept which is of rapidly diminishing importance in the law of evidence, however, it is probably sufficient for present purposes to summarise the question of what can constitute corroboration with the following broad statements: • if evidence requires corroboration this can be provided by several items of circumstantial evidence in combination: see, for example, R v Tripodi (1961) and R v Nanette (1982). • the corroborating evidence must be both consistent with the testimony of the witness whose evidence requires corroboration and implicate the accused in some way: see Ridley v Whipp (1916) and R v Kerim (1988). • the corroborating evidence must obviously, therefore, be relevant to the facts in issue at the trial on its own account. • evidence requiring corroboration can, in some circumstances, also be corroborative; the question of whether the evidence of one witness who requires corroboration can corroborate the evidence of another witness who also requires corroboration, and vice versa (the question of ‘mutual corroboration’), depends both on the class of witness into which they fall and on whether the risk of joint concoction is real: see DPP v Hester (1973), DPP v Kilbourne (1973) and Hoch v R (1988). • the conduct of the accused (or some other party against whom the evidence requiring corroboration has been led) is, in certain circumstances, capable of providing corroboration of the evidence against them: see, for example, Eade v R (1924) and Edwards v R (1993). • a witness whose evidence requires corroboration can not provide their own corroboration; a witness’s prior consistent statement can obviously __________________________________________________________________________________________________________________________________________

6

R v Baskerville [1916] 2 KB 658, 665, 667. 358

Corroboration and Judicial Warnings not, therefore, be regarded as corroborative of their testimony at trial (see R v Whitehead (1929)); less obviously perhaps, in cases where there is a conflict of testimony between the accused and a witness whose testimony requires corroboration, the jury cannot prefer the testimony of the witness, conclude that the accused must therefore have lied on oath, and then use this lie as corroboration of the witness’s testimony: see Edwards v R (1993). • in a sexual offence trial, however, the courts have reluctantly conceded that in exceptional circumstances a complainant’s distressed condition might be capable of being regarded as corroborative of her testimony: see R v Redpath (1962) and R v Waye (1984).

21.3

Categories of unreliable evidence

There are several well-recognised categories of potentially unreliable evidence, in respect of which some sort of warning must be given under either or both the common law and the uniform evidence legislation. If evidence which appears to be unreliable does not fall within any of the categories below, some sort of unreliability warning may nevertheless be necessary, as part of the trial judge’s general duty to direct the jury on the evidence: see below under the heading ‘Other unreliable evidence’.

21.3.1 Perjury prosecutions The offence of perjury is committed when a person gives deliberately false evidence on oath. In a prosecution for perjury, therefore, it must be established that the evidence the accused gave on oath was both false, and deliberately false. There would be obvious scope for unfairness if the falseness of the accused’s testimony could be established by the simple means of having a single witness testify to the effect that the testimony given by the accused was false. The common law therefore imposed a requirement of corroboration in respect of the evidence of such a witness: see R v Muscot (1713). This is the only common law example of a corroboration – as distinct from a corroboration warning – requirement. The corroboration need not, of course, be provided by the evidence of another witness; the fact that the accused had on several different occasions contradicted his or her own sworn testimony would, for example, suffice: see R v Sumner (1935). The common law corroboration requirement has been replaced by statutory corroboration requirements to the same effect in several Australian jurisdictions.7 In some other Australian jurisdictions it has been abolished.8 As was noted above, s 164(2) of the uniform evidence legislation expressly preserves any existing common law and statutory ‘rule of law that requires __________________________________________________________________________________________________________________________________________

7 8

See Criminal Code 1899 (Qld), s 125; Criminal Code 1924 (Tas), s 96; Criminal Code (NT), s 120. See Evidence Act 1906 (WA), s 35; Criminal Law Consolidation Act 1929 (SA), s 239(5). 359

Principles of Evidence corroboration with respect to the offence of perjury or a similar or related offence’. The Australian Law Reform Commission favoured the retention of the existing corroboration requirements in relation to proof of perjury on the basis that ‘the requirement is necessary to protect witnesses from false charges of perjury, which, if they were common, would discourage people from giving evidence’.9

21.3.2 Hearsay and admissions Under the uniform evidence legislation, hearsay evidence or evidence of an admission which is admitted in accordance with the rules discussed in Chapters 6, 7, 9 and 10 of this book is deemed by s 165(1)(a) to be evidence of a kind that may be unreliable. This means that the judge should give a s 165(2) unreliability warning in respect of such evidence, provided that a party requests that such a warning be given, and the judge does not think there are good reasons for not doing so. The reasons why hearsay evidence is often considered unreliable provide the rationale for the hearsay rule and were discussed under that heading in Chapter 6: Hearsay: The Exclusionary Rule. Such a warning might be thought unnecessary if hearsay evidence has been admitted under an exception which required it to be reliable. Odgers suggests that evidence of an admission might be unreliable if the admission was not based on the party’s personal knowledge, or if the admission was made vicariously. 10 In criminal proceedings, however, evidence of an admission by the accused is only admissible if ‘the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected’: s 85(2). Perhaps this suggests that where evidence of an admission by the accused has been held to be admissible, the judge may find that there are good reasons for rejecting a defence request that an unreliability warning be given in respect of that evidence. Two further warning requirements which may apply to admissions made by the accused in criminal proceedings are discussed below under the headings ‘Evidence of an admission given by a prison informer’ and ‘Disputed police evidence of an admission’.

21.3.3 Identification evidence Both at common law and under the uniform evidence legislation there are warning requirements in relation to identification evidence adduced by the prosecution in criminal proceedings. These warning requirements were discussed in Chapter 16: Identification Evidence. Section 165(1)(b) of the uniform evidence legislation also provides that ‘identification evidence’ is to __________________________________________________________________________________________________________________________________________

9 Evidence, ALRC 26, 1985, Vol 1 [1021]. 10 Odgers, S, Uniform Evidence Law, 2nd edn, 1997, Sydney: Federation Press, p 281. 360

Corroboration and Judicial Warnings be regarded as evidence of a kind which may be unreliable and in respect of which the judge is therefore obliged to give the jury an unreliability warning. The definition of ‘identification evidence’ in s 165(1)(b) is the same as that given in Chapter 16. Unlike the rules discussed in Chapter 16, however, Part 4.5 of the uniform evidence legislation is of general application. Section 165 therefore imposes a warning requirement in relation to identification evidence led in civil proceedings, or by the defence in criminal proceedings. The form which such a warning should take, and the matters to which it should direct the jury’s attention are, however, likely to be the same as for a warning of the kind discussed in Chapter 16.

21.3.4 The evidence of children and the elderly The third category of evidence recognised by the uniform evidence legislation as being ‘evidence of a kind that may be unreliable’ is contained in s 165(1)(c), which refers to: ... evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like;

As the heading above clearly indicates, however, the present discussion is only concerned with the first mentioned reason for possible unreliability: age. The remainder of the category is discussed separately below. At common law, a corroboration warning was required (probably as a matter of law) in relation to the sworn evidence of child witnesses: see Hargan v R (1919). The statutes which first allowed children who were judged to be too young to give sworn evidence to give unsworn evidence instead, also often imposed corroboration requirements in respect of that evidence.11 In most Australian jurisdictions these common law and statutory corroboration, and corroboration warning, requirements no longer apply. Some jurisdictions have abolished the rules of law and of practice which imposed the requirements;12 others have gone further and have actually prohibited judges from giving such warnings or suggesting in any way that children are an unreliable class of witness.13 The common law approach now only survives, and only to a limited extent, in South Australia, where a corroboration requirement applies to the unsworn evidence of children which is not ‘assimilated’ to evidence given on oath.14 In Queensland, the courts had held that the abolition of the corroboration requirements in relation to the __________________________________________________________________________________________________________________________________________

11 The question of whether a child witness will be permitted to give sworn or unsworn testimony was discussed in Chapter 2: Witnesses. 12 See s 164 of the uniform evidence legislation; Criminal Code (Qld), s 632; Evidence Act 1929 (SA), s 12a; and Evidence Act 1910 (Tas), s 122D(1). 13 See Evidence Act 1958 (Vic), s 23(2A); Evidence Act 1906 (WA), s 106D; Evidence Act 1910 (Tas), s 122D(2); and Evidence Act 1939 (NT), s 9C. 14 See Evidence Act 1929 (SA), s 12(3) and the discussion of children’s evidence in Chapter 2: Witnesses. 361

Principles of Evidence unsworn evidence of children left intact the corroboration warning requirements in relation to the evidence of children in general;15 it seems doubtful, however, that this approach could survive the recent amendment of s 632 of the Criminal Code (Qld). In Victoria, the legislation expressly provides that the prohibition on warnings which suggest that children are an unreliable class of witness does not prevent the ‘judge from making any comment on evidence given in the proceeding that it is appropriate to make in the interests of justice’.16 The same must be true of the other jurisdictions in which corroboration warnings have been abolished: if the evidence of a particular child witness appears to be unreliable for reasons to do with the child’s age, then some sort of direction may be necessary in order for the judge to discharge his or her general duty to ensure that the jury are properly directed in relation to the evidence: see below under the heading ‘Other unreliable evidence’. The position appears to be roughly the same under the uniform evidence legislation. This is because the category created by the first part of s 165(1)(c) is not one into which all child witnesses will automatically fall; instead, it is only if it appears that the reliability of the child’s evidence may have been affected by the child’s age that a warning need be given. In its report, the Australian Law Reform Commission identified lack of cognitive development as the major obstacle to a child’s competence as a witness; lack of cognitive development may also obviously affect the reliability of the evidence of a child who is permitted to testify.17 Where the uniform evidence legislation category does clearly depart from the common law one, however, is that the common law only recognises the possible unreliability of witnesses at one end of the age scale. The uniform evidence legislation category, on the other hand, is clearly capable of including unreliability caused by the fact that the witness is elderly. Where cognitive development was identified by the Australian Law Reform Commission as the source of doubts about the reliability of witnesses of tender years, in respect of elderly witnesses the Australian Law Reform Commission pointed to the possibility of deterioration in long-term memory.18

21.3.5 The evidence of physically or mentally ill or injured witnesses As well as age, s 165(1)(c) of the uniform evidence legislation recognises that the reliability of a witness’s evidence may be affected by their ‘ill health (whether physical or mental), injury or the like’. Similarly, in Bromley v R (1986) the High Court recognised that an unreliability warning might be __________________________________________________________________________________________________________________________________________

15 16 17 18

See Evidence Act 1977 (Qld), s 9; and R v CBR (1992). Evidence Act 1958 (Vic), s 23(2B). See also Criminal Code (Qld), s 632(3). Evidence, ALRC 26, 1985, Vol 1 [242]. Ibid [242]. 362

Corroboration and Judicial Warnings necessary if ‘it appears that a witness whose evidence is important has some mental disability which may affect his or her capacity to give reliable evidence’.19 In Bromley, for example, the principal prosecution witness in a murder case was schizophrenic, and was undoubtedly affected by his mental illness on the night of the murder. The High Court declined to create a new category of evidence in respect of which a corroboration warning would be necessary, but agreed that it was appropriate that the judge should have given an unreliability warning tailored to the circumstances of the case as an aspect of his general duty to direct the jury fairly in relation to the evidence: see below under the heading ‘Other unreliable evidence’. Under the uniform evidence legislation, a category is recognised, but it is not one into which all physically or mentally ill or injured witnesses will automatically fall. Rather, it is only if it appears that the reliability of the evidence may actually have been affected by the witness’s ‘ill health (whether physical or mental), injury or the like’, that a warning need be given. The Australian Law Reform Commission’s discussion of competence again indicates the kinds of illness or injury which might be taken to have affected the reliability of a witness’s evidence.20 With some illnesses, it may be the reliability of the original perception which is affected, as where the witness was suffering from some sort of psychotic illness at the time of the events in question; in other cases, it may be the reliability of the witness’s recollection of their perception which is under question, as where the witness is suffering from a mental illness or brain injury which adversely affects memory.

21.3.6 The evidence of accomplices The fourth broad category in s 165(1) of the uniform evidence legislation is for: ... evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding.

This category is equivalent to the common law category of accomplice evidence. At common law a corroboration warning is required where the prosecution adduces evidence from a witness who was allegedly an accomplice of the accused in the crime charged. This requirement is generally regarded as being a matter of law, rather than of practice, although there is some authority to the contrary. In Queensland, the corroboration warning requirement has been abolished, although the judge is still permitted to make appropriate comments about the evidence in the particular case.21 The rationale for the corroboration warning requirement is that each of the participants in a crime has an obvious motive to minimise their own role in __________________________________________________________________________________________________________________________________________

19 Bromley v R (1986) 161 CLR 315, 319. 20 Evidence, ALRC 26, 1985, Vol 1 [242]. 21 See Criminal Code (Qld), s 632. 363

Principles of Evidence the crime and to attempt to place as much of the blame as possible on the other participants. There is a greater than usual risk, therefore, that such a witness will give false evidence. But although the rationale for the warning requirement is sound, the requirement has itself become quite arbitrary due to the highly technical answer which has been given to the question of who is an ‘accomplice’. In the leading case of Davies v DPP (1954), the House of Lords said that an accomplice warning need only be given when the witness falls into one of the three following categories: • a criminal participant in respect of the actual crime charged, whether as a principal or as an accessory before or after the fact; • a receiver at the trial of the thief; • when evidence of another offence is admitted in accordance with the rules discussed in Chapter 13: Tendency and Coincidence Evidence: The Accused, a person who falls into one of the above two categories in respect of the other offence. To add to the complexity of the direction which the jury must be given, it is actually for the jury, rather than the judge, to decide whether or not a particular witness does indeed fall within one of these categories. The real problem, though, lies in the narrowness of the categories, particularly the first category, because it excludes a witness who participated in the events out of which the charge arose but who could not be charged with the same offence as the accused. In Davies, for example, the witness had participated in a running fight between two groups of youths. One of the youths on the other ‘side’ was stabbed and died; several of the youths on the witness’s side were charged with murder, but he was not. Yet surely the witness would have been subject to the same temptation to understate his own role in the fight. The narrow definition of ‘accomplice’ in Davies is, therefore, at odds with the reasons why a warning must be given: to protect the accused from the risk created by the admission of testimony from those with an identifiable motive to lie. For this reason, in Khan v R (1971), the Western Australian Court of Criminal Appeal broadened the definition of the first category of accomplice along the lines earlier suggested by Scholl J in McNee v Kay (1953): ... a person is an accomplice within the common law rule who is chargeable, in relation to the same events as those founding the charge against the accused, with an offence (whether the same offence or not) of such a character, and who would be if convicted thereof liable to such punishment, as might possibly tempt that person to exaggerate or fabricate evidence as to the guilt of the accused.22

The court also added that where a witness fell outside the technical definition of accomplice, but their testimony was nevertheless subject to the same __________________________________________________________________________________________________________________________________________

22 McNee v Kay [1953] VLR 520, 530. 364

Corroboration and Judicial Warnings dangers, a ‘voluntary’ or ‘optional’ unreliability warning should be given. Such a warning would be required as part of the judge’s general duty to direct the jury on the evidence, a duty discussed below under the heading ‘Other unreliable evidence’. The drafting of s 165(1)(d) of the uniform evidence legislation was clearly designed to sweep away all the arbitrary technicalities associated with the common law definition of ‘accomplice’ and to replace them with a very broad category encompassing any witness whose involvement in a crime might tempt them to lie about the involvement of the accused. The other main difference between the common law and the uniform evidence legislation, of course, is that whereas the common law requirement is for a corroboration warning, the uniform evidence legislation requirement is for an unreliability warning. Finally, s 165(1)(d) also appears to cover cases where the ‘accomplice’ is a co-accused testifying on their own behalf, rather than for the prosecution. At common law in such cases a warning is not mandatory, but may be given if the judge thinks that the circumstances of the case are such as to require it; if any such warning is to be given, however, the judge must be careful to ensure that the co-accused is not thereby disadvantaged: see Webb and Hay v R (1994). Under the uniform evidence legislation, on the other hand, if one of the accused requests that an unreliability warning be given then the judge is under an obligation to give such a warning unless satisfied that there are good reasons for not doing so.

21.3.7 Evidence of an admission given by a prison informer In Pollitt v R (1992), the High Court recognised that there are dangers associated with the evidence of prison informers. Section 165(1)(e) of the uniform evidence legislation retains this category, providing that ‘evidence given in a criminal proceeding by a witness who is a prison informer ’ is evidence of a kind that may be unreliable. ‘Prison informer’ is not defined in the dictionary; this category of unreliable evidence therefore appears to be coextensive with the common law category. What the category is concerned with are admissions of guilt allegedly made by the accused to a fellow prisoner, either while in custody for another offence or while on remand. In Pollitt, the court held that in all but exceptional circumstances a jury should be warned of the following dangers associated with such evidence: that the evidence is easily concocted; that it will usually be difficult for an accused person to corroborate his or her denial of having made the admission; that a prison informer is likely to be of bad character; and that the informer may be motivated by the hope of some benefit. See also R v Clough (1992). Although the warning required by Pollitt is an unreliability warning, rather than a corroboration warning, the court did suggest that the jury’s attention should be directed towards the question of whether the making of the 365

Principles of Evidence confession (as distinct from the commission of the crime) is corroborated by other evidence.

21.3.8 Disputed police evidence of an admission Section 165(1)(f) of the uniform evidence legislation deems the following to be ‘evidence of a kind that may be unreliable’: ... oral evidence of official questioning of a defendant that is questioning recorded in writing that has not been signed, or otherwise acknowledged in writing, by the defendant;

‘Official questioning’ is defined in the dictionary section, but the definition contains no surprises. Of course, in many jurisdictions, such evidence might not actually be admissible: see Chapter 10: Admissions and Confessions by the Accused. Section 165(1)(f) is intended, however, to preserve the High Court’s ruling in McKinney v R (1991). McKinney represents an acknowledgment by a majority of the High Court of the fact that the police do sometimes fabricate confessions, and that it is difficult for an accused person to dispute the making of a confession. The majority of the High Court created a rule of practice requiring that an unreliability warning should be given in respect of disputed police evidence of an admission allegedly made by the accused while in police custody. The warning need only be given, however, when the making of the admission is not reliably corroborated. An audio or video recording of the making of the admission is obviously the most acceptable form of corroboration; the evidence of an independent person would also satisfy the requirement. The High Court was sceptical about the corroborative value of the accused’s signature on a written record of interview, pointing out that ‘the atmosphere, including the isolation and powerlessness of a suspect held in police custody, which allows for its fabrication, may also be conducive to the suspect signing a false document. Thus, in some circumstances, a signature on a police record of interview may carry no greater corroborative force’.23 Under the uniform evidence legislation, on the other hand, a signature or other written acknowledgment from the accused clearly places the evidence outside the category in respect of which a warning is required. In terms of the content of a McKinney warning, the High Court held that: ... the jury should be informed that it is comparatively more difficult for an accused person held in police custody without access to legal advice or other means of corroboration to have evidence available to support a challenge to police evidence of confessional statements than it is for such police evidence to be fabricated, and, accordingly, it is necessary that they be instructed ... that they should give careful consideration as to the dangers involved in convicting an accused person in circumstances where the only (or substantially the only) __________________________________________________________________________________________________________________________________________

23 McKinney v R (1991) 171 CLR 468, 474. 366

Corroboration and Judicial Warnings basis for finding guilt has been established beyond reasonable doubt is a confessional statement allegedly made whilst in police custody, the making of which is not reliably corroborated. Within the context of this warning it will ordinarily be necessary to emphasise the need for careful scrutiny of the evidence and to direct attention to the fact that police witnesses are often practised witnesses and it is not an easy matter to determine whether a practised witness is telling the truth.24

Since McKinney, several further cases have been decided on the questions of when such a warning should be given, and what it should contain: see Black v R (1993), R v Small (1994) and R v Lawson (1996). There would seem to be no obvious reason why this learning could not be easily transferred to the warning requirement imposed by s 165.

21.3.9 The evidence of claimants against deceased estates The final category recognised by the uniform evidence legislation as being ‘evidence of a kind that may be unreliable’ is contained in s 165(1)(g): ... in a proceeding against the estate of a deceased person – evidence adduced by or on behalf of a person seeking relief in the proceeding that is evidence about a matter about which the deceased person could have given evidence if he or she were alive.

This category appears to be analogous with a common law rule requiring a corroboration warning in cases where a claim against a deceased person’s estate is based on evidence given by the claimant.25

21.3.10 The evidence of complainants in sexual offence trials The common law traditionally required that the jury be given a corroboration warning in respect of the testimony of a complainant in a sexual offence trial. The basis for this requirement was the claim that: ... human experience has shown that in these courts girls and women do sometimes tell an entirely false story which is very easy to fabricate, but extremely difficult to refute. Such stories are fabricated for all sorts of reasons, which I need not now enumerate, and sometimes for no reason at all.26

The warning requirement was widely seen as both insulting to women and as lacking any basis in fact. The common law corroboration warning requirement has therefore been abolished in all States and Territories.27 The Victorian __________________________________________________________________________________________________________________________________________

24 McKinney v R (1991) 171 CLR 468, 476. 25 See Heydon, J, Cross on Evidence, Australian edition, North Ryde, NSW: Butterworths [15150]. 26 R v Manning; R v Henry (1968) 53 Cr App R 150, 153 (Salmon LJ). 27 See s 164 of the uniform evidence legislation; Crimes Act 1958 (Vic) s 61; Criminal Code (Qld), s 632; Evidence Act 1906 (WA), s 50; Evidence Act 1929 (SA), s 34i(5); Criminal Code (Tas), s 136; and Sexual Offences (Evidence and Procedure) Act 1983 (NT), s 4(5)(a). 367

Principles of Evidence experience, however, was that mere abolition of the requirement was insufficient to prevent trial judges from giving such warnings. The current Victorian provisions, therefore, go further and actually forbid the giving of any warning which suggests ‘that the law regards complainants in sexual cases as an unreliable class of witness’; the trial judge is still permitted, however, to make ‘any comment on evidence given in the proceeding that it is appropriate to make in the interests of justice’. The Queensland, Western Australian and Northern Territory provisions are of similar effect. In all jurisdictions, therefore, a warning need now only be given where the evidence in the case actually demands it. The warning will, then, be a manifestation of the trial judge’s general duty to direct the jury in relation to the evidence: see below, under the heading ‘Other unreliable evidence’. Longman v R (1989) 168 CLR 79 perhaps provides an example of a case where a judge might feel that such a case-specific warning was appropriate. There the alleged sexual assaults had occurred some 20 years before trial, when the complainant was a child. The High Court thought that the jury should have been warned about the dangers of convicting on the uncorroborated testimony of the complainant given that the events were experienced when she was a child, and that the length of time between the events and the trial made effective cross-examination extremely difficult. Testimony about events the memory of which has only been ‘recovered’ through therapy may provide another example.28

21.3.11 New categories of unreliable evidence As McKinney v R (1991) and Pollitt v R (1992) demonstrate, the courts have been willing in recent years to recognise new classes of potentially unreliable evidence in respect of which an unreliability warning must be given. In common law jurisdictions this process can clearly continue. The Australian Law Reform Commission, concerned that new unlisted categories might emerge, pointed out that ‘the judge’s general powers and obligations to give appropriate warnings and directions will remain and be available to cover such situations’.29 It would also appear, however, that s 165 itself could be used as the basis for imposing a warning requirement in respect of further, presently unlisted, categories of unreliable evidence. This is because s 165 is drafted in such a way that the obligation to give a warning arises in relation to any evidence which is ‘evidence of a kind that may be unreliable’, not just evidence falling within the listed categories. The specific listed categories are merely examples of the broader category of unreliable evidence, and there is no reason why the courts could not recognise the existence of further specific categories under the umbrella of s 165. __________________________________________________________________________________________________________________________________________

28 See Freckelton, I, ‘Repressed Memory Syndrome: Counterintuitive or Counterproductive?’ (1996) 20 Crim LJ 7. 29 Evidence, ALRC 26, 1985, Vol 1 [1017]. 368

Corroboration and Judicial Warnings

21.4

Other unreliable evidence

This chapter has so far been concerned with those categories of evidence which the law recognises as being so prone to unreliability that a judicial warning is (almost) always required in respect of them. Apart from these specific categories, however, the trial judge is also under a general duty to direct the jury fairly in relation to the evidence and by so doing to avoid the risk of a miscarriage of justice. Whether judicial comment on a particular item of evidence is necessary in order to discharge this duty ‘ultimately depends upon whether a reference to that matter is necessary to ensure that the jurors have sufficient knowledge to discharge their duty to determine the case according to the evidence’.30 If the evidence appears to be subject to potential sources of unreliability which may not be readily apparent to the jury, then some direction will probably be necessary in order to avoid the risk of a miscarriage of justice. As Brennan J commented in Bromley v R (1986): ... when the danger in acting upon the evidence is real and substantial and when the conduct of the trial and evidence are such that the jury may not have fully perceived or the jury’s attention may have been diverted from the danger, a warning should be given.31

This general common law duty to give appropriate directions in relation to the evidence is preserved by s 165(5) of the uniform evidence legislation. As for the content of such a warning: What is required, in a case where the evidence of a witness may be potentially unreliable, but which does not fall within one of the established categories ... is that the jury must be made aware, in words which meet the justice of the particular case, of the dangers of convicting on such evidence ... There is nothing formal or technical about this rule.32

Bromley v R (1986) and Longman v R (1989) – discussed above under the headings ‘The evidence of physically or mentally ill or injured witnesses’ and ‘The evidence of complainants in sexual offence trials’ respectively – provide two examples of cases where potentially unreliable evidence was held to have called for some sort of warning from the judge as an aspect of his or her general duty to alert the jury to any potential dangers in the evidence.

21.5

Summary

Several categories of evidence have been recognised either at common law, or under the uniform evidence legislation, or under both, as being subject to __________________________________________________________________________________________________________________________________________

30 Domican v R (1992) 173 CLR 555, 561. 31 Bromley v R (1986) 161 CLR 315, 325 (Brennan J). 32 Ibid, 319 (Gibbs CJ). 369

Principles of Evidence dangers which may not be readily apparent to the jury. Where such a category has been recognised at common law, the trial judge may be required to do one of three things: • direct the jury that they are not entitled to accept the evidence unless they find that it has been corroborated (a ‘corroboration requirement’); • direct the jury about the dangers associated with the evidence, and in particular the dangers of acting on the evidence without corroboration, but nevertheless direct the jury that they are entitled to accept the evidence even if they find that it is not corroborated (a ‘corroboration warning requirement’); or • simply direct the jury about the dangers associated with the evidence (an ‘unreliability warning requirement’). Under the uniform evidence legislation, with the exception of perjury prosecutions, all corroboration and corroboration warning requirements have been abrogated, and the judge is only required to give unreliability warnings. The classes of evidence in respect of which such directions must be given include: • evidence in perjury prosecutions; • hearsay evidence and evidence of admissions; • identification evidence; • the evidence of children and the elderly; • the evidence of physically or mentally ill or injured witnesses; • the evidence of accomplices; • evidence of an admission given by a prison informer; • disputed police evidence of an admission; and • the evidence of claimants against deceased estates. The interests of justice may also require that a warning be given in respect of evidence falling outside these categories, if there is a risk that the jury may not otherwise fully appreciate the dangers associated with the evidence.

370

INDEX Accomplices, Accused character, coincidence evidence, compellability, competence, credibility, families, Northern Territory, previous convictions,

363–65

previous convictions, 191–95 privilege, 302, 307 public interest, 11 real evidence, 59, 66 relevancy, 75, 83–86 reliability, 6–7 sexual history, 204, 208, 255 standard of proof, 343–44 tendency evidence, 197–99, 202, 213, 217, 227–33, 236, 239–40 trials, 14–15 visual aids, 63–64, 66 voir dire, 14–15 Admissions, 12, 54, 123, 155–89 admissibility, 155, 157–58, 165, 168, 172, 182–83, 352 agreed facts, 351–54 audio recordings, 171–73 civil proceedings, 158, 164, 351–54 common law, 155–56, 158, 164 confessions, 165, 169 conduct, by, 158–59 corroboration, 366 criminal proceedings, 158, 165, 353, 360 definition, 155–59, 352 disputed, 366–67 form, 56 formal, 351–54 hearsay, 123, 156, 158–59, 164 illegally, improperly or unfairly obtained evidence, 331, 333 implied, 158–59, 169 indictable offences, 173–74 inferences, 159–60 informers, 167 interrogatories, 156 investigating officials, made to, 170–71

216–17, 259–81 215–42 35 35 243, 259–81 37–38 37–38

8–9, 191–96, 212, 226, 234 Queensland, 37–38 South Australia, 37–38 Tasmania, 37–38 tendency evidence, 215–42 Victoria, 37–38 Western Australia, 37–38 witnesses, 35–38 Acquittals, 195 Admissibility acquittals, 195 admissions, 151, 157–58, 165, 168, 182–83, 352 burden of proof, 341 character, 264 confessions, 165, 167–69, 172, 176, 181–82, 188 credibility, 243–48, 257 documentary evidence, 51–52, 54, 56 flow charts, 72–74 hearsay, 89, 91, 95, 109, 113, 118, 131–33 identification, 285, 288–90 illegally, improperly or unfairly obtained evidence, 11, 328–29 opinions, 137, 139–42, 145, 148, 151–52 photographs, 63 prejudice, 8

371

Principles of Evidence judicial warnings, New South Wales, Northern Territory, official questioning, during, personal knowledge, prejudice, previous convictions, Queensland, relevancy, reliability, representations, silence, suspects, made by, Tasmania, tendency evidence, terminology, undercover officers, uniform evidence legislation, unsigned records of interviews, vicarious, video recordings, Victoria, Western Australia, Adversarial proceedings, Adverse inferences, Affirmations, Agreed facts, Alibis, Appeals, Assertions, Audio recordings, Australian Capital Territory,

360, 366–67 169–73 169–70, 172, 174

Balance of probabilities,

9, 342, 344, 345

Battered woman syndrome, 145 Beyond reasonable doubt, 343 Browne v Dunn rule, 47–48, 50 Burden of proof, 339–41, 344 Business records, 126–27, 132, 133

171–73 158, 164 353 193 180 159 182–83, 360, 366 156, 159 160–63 169–70 169–73 212 165 171

Cautions, 186 Character See also Reputation accused, 216–17, 259–81 admissibility, 264 adverse evidence, 277 bad, 263, 266, 278 coincidence, 266, 275 common law, 260, 262–63, 278 credibility, 243, 244, 259–81 cross-examination, 263, 264–74, 277, 278–79 definition, 259–60 discretion, 273–74 divisible, 262–63 experts, 275 facts in issue, 260, 266 flow chart, 279–80 good, 260–64, 278 rebuttals, 261–64, 278 hearsay, 261 joint trials, 274–77, 279 Northern Territory, 269, 276 opinions, 261, 275 prejudice, 265, 267–68, 272, 274, 279 prior statements, 266, 279 probative value, 260 prohibited questions, 265–67 Queensland, 266, 268, 269, 273, 276 relevancy, 266–67 sexual offences, 271

155–59, 164, 165, 352, 366 183 156–57, 164 171–73 169–73 169–73 12–13 30, 161, 163 26 351–54 76 16–19 91–92, 94, 96–105 56, 61–62, 167–75, 187 2, 206, 208, 256

372

Index South Australia, Tasmania, tendency evidence, uniform evidence legislation,

266, 271, 274, 276 269, 276

Clothing, Coincidence, Common law, accomplices, admissions,

216–17, 260–61, 263–64, 266–67, 275

burden of proof, character,

260–61, 263–65, 267–68, 271–73, 276–79 Victoria, 268, 269, 273, 276 Western Australia, 269, 276 witnesses, 262, 268–74 Charts, 63–64, 66 Children corroboration, 361 judicial warnings, 361–62 opinions, 145 Queensland, 361–62 reliability, 363 sexual abuse, 145, 237–38 South Australia, 361–62 uniform evidence legislation, 31, 362 Victoria, 362 witnesses, 27–28, 30–34 Civil proceedings, 4, 13 admissions, 158, 164, 351–55 appeals, 19 balance of probabilities, 9 burden of proof, 344 coincidence, 200–01 criminal convictions, 193–94, 196 excluded evidence, 325 hearsay, 111–15, 124, 131–32 judges, 40 judgments, 194 order of proceedings, 16 relevancy, 75 standard of proof, 9, 342–43 tendency evidence, 197, 199–201, 212 witnesses, 30, 40 Client legal privilege, 11, 302–08 Closed circuit television, 53

confessions, confidentiality, corroboration, credibility, documentary evidence, excluded evidence,

61 197–242, 266, 275 1–2 363–64 155–56, 158, 164, 165 341 260, 262–63, 278 167–68, 176–82, 184, 188 319 359–60 244–47, 249–51, 257–58

hearsay,

identification, illegally, improperly or unfairly obtained evidence, judicial notice, judicial warnings, legal professional privilege, opinions, perjury, previous convictions, privilege, privilege against self-incrimination, public interest immunity, relevancy,

373

53–54 324–26, 333–34 90–92, 95, 104–05, 109, 120–23, 125–26, 133 283, 290–93, 297

329–30, 332 347–48, 354 355–56 304–05 139–40, 142, 152–53 359–60 193, 195 302–03, 308, 320 308–11, 321 312, 316–17 75, 75–86

Principles of Evidence reliability, right to silence, tendency evidence,

trials, views, witnesses, Compellability, Competence, Compromise, Computers, Conduct, Confessions admissions, admissibility,

369 161, 163

oppression, Queensland, reliability, right to silence,

199–202, 211–15, 218, 220, 222, 229–34, 238–40 12–19 66 25–27 26, 28–29, 35, 37–38, 49, 300 26–27, 31–32, 35, 37, 49, 113, 149 303, 307–08, 320 56–57 116–17, 158–59

178–79, 182, 185, 187 180 176, 183–85 177, 181, 186, 187–88 344 181, 188

standard of proof, state of mind, statutory recording provisions, Tasmania, uniform evidence legislation,

167–75 168–9, 174, 187

167, 177, 181–84, 188 upholding rights, 185–87 Victoria, 168–69, 172, 174, 187 video recordings, 167–75, 187 voir dire, 176–77, 179 voluntariness, 176–81, 187–88 Western Australia, 168–69, 174, 187 Confidentiality, 11, 304–07, 315–17, 319–20 Contemporaneous representations, 118–20, 129–30, 132 Convictions, 8–9, 191–96, 212, 226, 234 Corporate lawyers, 305 Corporations, 310, 321 Corroboration, 32, 46, 355–72 Credibility, 243–81 accused, 243, 259–81 admissibility, 243–48, 257 character, 243, 244, 259–81 common law, 244–47, 249–51, 257–58 cross-examination, 244, 245–53, 257 definition, 243, 256 executions, 249–52 experts, 252–53 false denials, 248–51 hearsay, 91, 94, 245, 256–57 hostile witnesses, 248

165, 169 165, 167–69, 176, 181–82, 188 audio recordings, 168–69, 174–75, 187 cautions, 186 common law, 167–68, 176–82, 184, 188 danger, of, 165–66 discretion, 184–87, 188 fabrication, 166–68 failure to record, 174–75 fairness, 184–87, 330–31 flow chart, 189 hearsay, 176 illegally, improperly or unfairly obtained evidence, 187, 188, 330–31 importance, 165–66 inducements, 179–80, 185, 187 jury directions, 168 miscarriages of justice, 166 New South Wales, 168–69, 174, 187 Northern Territory, 168–69, 187

374

Index Northern Territory, opinions, prior statements, Queensland, reestablishing, re-examination, relevancy, reputation, sexual offences,

public interest immunity, representations, right to silence,

245, 247, 249–50, 252–53, 257–58 246–47 251–53 251–52 76–77, 86, 244 250–51 243, 253–56, 258 246

South Australia, substantial probative value, Tasmania, uniform evidence legislation,

246 253

standard of proof, tendency evidence, third parties, Victoria, witnesses,

247, 257–58 246

Cross-examination, character,

244–45, 247–53, 256–58 Victoria, 246 Western Australia, 246 witnesses, 46, 243–58 Criminal proceedings, 4, 13 See also Confessions admissions, 158, 165, 353–54, 360 appeals, 16–19 burden of proof, 340, 344–45 civil proceedings, 193–94, 196 coincidence, 201–02 defamation, 194 excluded evidence, 325 hearsay, 111–13, 118–19, 122–27, 130–33 illegally, improperly or unfairly obtained evidence, 332 judges, 40 juries, 15 legal professional privilege, 306, 320 order of proceedings, 15–16 photographs, 63 pleas, 15 previous convictions, 193–95 privilege, 300–01 privilege against self-incrimination, 308–12

credibility, sexual offences, Cut throat defence,

317–18 115–17 35–37, 160–63 343, 344–45 197, 199, 201–13, 215–42 201–02 15 15–16, 30, 40, 43 45–49, 50, 88, 89–90 263, 264–74, 277, 278–79 244, 245–53, 257 255 210

Deceased estates, 367 Defamation, 194 Demonstrations, 64–65, 67 Diagrams, 63–64, 66 Direct evidence, 76–80, 86 Disabled persons, 34, 362–63 See also Mental disabilities Disciplinary proceedings, 9–10 Disclosure, 299–300, 313–21 Discovery, 300 DNA samples, 61, 150 Documentary evidence, 12, 51–59, 61, 350–51 Dying declarations, 120–21, 133 Elderly, Estoppel, Examination, Examination-in-chief,

375

361–62 194, 195 38–50 40–45, 50

Principles of Evidence Excluded evidence, civil proceedings, common law, confusing evidence, criminal proceedings, discretion, identification, illegally or improperly obtained evidence, misleading evidence, prejudice, probative value, relevance, time-wasting evidence, uniform evidence legislation, Experiments, Experts,

implied,

character, civil proceedings,

325 323–27, 333–34 291, 297

common law,

competency, conduct, confessions, contemporaneous representations,

328–33, 334

credibility, criminal proceedings,

112–15, 132 101–02 126–27, 132, 133 261 111–15, 124, 131–33 90–92, 95, 104–05, 109, 120–23, 125–26, 133 113 102–05 116–17, 176 118–20, 129–30, 132 91, 94, 245, 256–57

111–13, 118–19, 122–27, 130–33 cross-examination, 88, 89–90, 256–57 definition, 90–96 dual relevance, 94, 105, 131 dying declarations, 120–21, 133 exceptions, 109–35 exclusionary rule, 87–107 fear, 98–99 first-hand, 112, 113–26, 131–32 flow charts, 106–07, 134–35 health, 129–30, 132 identification, 290 inferences, 95–101, 104–05 intention, 99–101 interlocutory proceedings, 131 judicial warnings, 360 labels, 127, 132 mistake, 120 Northern Australia, 127 notice, 114, 131 opinions, 150–51

323–26, 333–34 65, 67 137, 139–45, 212, 252–53, 275

Government lawyers,

assertions,

327–28

327–28

False denials, Families, Federal courts,

admissions,

availability of declarants, belief, business records,

327–38 324–27 323–24, 326, 334 327–28

Facts in issue,

Health, Hearsay, admissibility,

323–34 325 324–26, 333–34

75–77, 81, 86, 198, 260, 266 248–51 37–38 2 305 129–30, 132 87–135 89, 91, 95, 109, 113, 118, 131–33 123, 156, 158–59, 164 91–92, 94, 103, 105 96–105

376

Index prior inconsistent statements,

Identification, admissibility, circumstantial, common law,

93, 125, 132 rationale, 87–88 relevancy, 94, 101, 105, 131 remoteness, 112, 126, 132–33 representations, 93–94, 105, 113–14, 117–27, 132–33 contemporaneous, 118–20, 129–30, 132 interest, against, 122–23 prior, 124–6, 132 proceedings, made in other, 123–24 reliable, 121–22, 133 reputation, 130–31 age, 130, 133 public or general rights, 130–31, 133 relationships, 130, 133 res gestae, 118–20, 133 right to silence, 163 second hand, 126, 130 sexual offences, South Australia, 127 state of mind, 95–97, 132 tags, 127, 132 Tasmania, 127 telecommunications, 128, 132 telephone conversations, 128–29, 133 terminology, 90 uniform evidence legislation, 93–94, 105, 109, 111–14, 117, 119–33 witnesses, 87–90, 94, 114, 124–26, 131–32 writing, 127, 132 Hostile witnesses,

definition, discretion, dock, exclusions, hearsay, inferences, informers, judicial warnings, miscarriages of justice, mistakes, parades, photographs, picture, prior, reliability, single suspect, uniform evidence legislation,

283–97 285, 288–97 285 283, 290–93, 297 283–85 291–92, 297 288, 291 291, 297 290 284 316 292–93, 297, 360–61 286 286–87 287–88, 291–96 291–92 286–87, 295–97 288–91, 294–96 6–7, 361 288, 291 283, 290, 293–97 294–95, 297 284–85 284, 286–95

visual, voice, witnesses, Illegally, improperly or unfairly obtained evidence, 9–10, 184–88, 328–34 Immunity, 11, 302, 307, 311–19, 321 Inferences admissions, 159–60 adverse, 30, 161, 163 belief, 101–02 fear, 98–99 hearsay, 95–101, 104–05 identification, 284 intention, 99–101 opinions, 138–39 relevancy, 84–85 right to silence, 160 tendency evidence, 220, 230, 235, 239

44–45, 248

377

Principles of Evidence witnesses, Informers, In-house lawyers, Insanity, Interrogatories, Inspections, Interlocutory proceedings, Issue estoppel, Joint trials, Judges civil proceedings, corroboration, criminal proceedings, identification, notice, summing up, trials, voir dire, warnings, witnesses, Judgments, Juries confessions, corroboration, criminal proceedings, identification, opinions, trials, voir dire, warnings,

Labels, Leading questions, Legal professional privilege,

29–30, 35–36 167, 316, 365–66 305 340, 345 156 64, 67, 318–19

Legislation See Uniform evidence legislation Legitimacy principle, Maps, Matters of State, Mental disabilities, Miscarriages of justice, Models,

131 194 210–12, 274–77, 279

10 63–64, 66 351 27, 34, 362–63 166, 286 63–64, 66

National security, 314 New South Wales, 2, 3 admissions, 169–74 confessions, 168–69, 187 confidentiality, 319 privilege, 300 privilege against self-incrimination, 311 right to silence, 161 sexual offences, 205, 206, 255 Northern Territory, 3 accused, 37–38 admissions, 169–70, 172, 174–75 character, 267, 276 children, 32–33 confessions, 168–69, 187 credibility, 246 hearsay, 127 privilege, 299 right to silence, 161 sexual offences, 34, 206, 207–08, 255–56, 368 witnesses, 28, 31–34, 37, 38 Notice hearsay, 114, 132 judicial, 347–51, 354 tendency evidence, 198, 213, 239

40 355–72 40 292–93, 297 347–51 13 13–15 14–15 168, 292–93, 297, 355–72 40 191–96 168 355–72 15 292–93, 297 141–53 13–14 14–15 168, 292–93, 297, 355–72 127, 132 40–41, 46 11, 302–08, 320

378

Index Oaths, Opinions, admissibility, battered woman syndrome, character, child sexual abuse, common knowledge rule, common law,

26, 28, 31 137–54 137, 139–42, 145, 148, 151–52

Presumption of innocence, Previous convictions, Prison informers, Privilege, admissibility, common law,

145 261, 275 145

141–42, 153 139–40, 142, 152–53 competence, 149 confusing evidence, 149–50 credibility, 253 DNA profiling, 150 experts, 137, 139–45, 212 flow chart, 154 hearsay, 150–51 human behaviour, 142–44 inferences, 138–39 juries, 141–53 lay, 138 limitations, on, 150–52 proof, 151 reliability, 146–47, 149–50 rule, against, 137–38 syndrome evidence, 144–46 tendency evidence, 212 ultimate issue rule, 152 uniform evidence legislation, 137–38, 140–41, 148, 151–53 Perjury, Photocopies, Photographs, Physical objects, Prejudice, admissibility, admissions, character, excluded evidence, sexual offences, tendency evidence,

confidentiality, criminal proceedings, disclosure, discovery, immunity, legal professional, New South Wales, Northern Territory, public policy, Queensland, self-incrimination, settlement, subpoenas, Tasmania, uniform evidence legislation, Victoria, Western Australia, without prejudice, witnesses, Proof, burden, of, documentary evidence, opinions, relevancy, standard,

359–60 54–55 63, 291092 60–61 7–8 8 353 265, 267–68, 272, 274, 279 324–27 203 216, 229–40

Propensity evidence, Protective principle, Provocation, 379

234, 340 191–96, 212, 226, 234 365–66 299–308 302 302, 308, 320 320 300–01, 320 299–301 , 320 300 302, 307 11, 302–07, 320 300 299 301 299 160, 308–12, 321 307–08, 320–21 299–300 299 302, 307–08, 320 299, 300 299 307–08 299–301 5–11 339–41, 344 56, 57 151 76, 86 9, 339, 341, 341–45 216–24, 233, 236–40 10 340

Principles of Evidence Public documents, Public interest immunity, Queensland, accused, admissions, character, children, confessions, corroboration, credibility, privilege, sexual offences, witnesses, Rape shield provisions, Real evidence, Re-examination, Relevancy, admissibility, admissions, alibis, audio recordings, character, circumstantial evidence, civil proceedings, common law, credibility,

55

provisional, real evidence,

11, 312–19, 321

sufficiency, tendency evidence,

3 37–38 180 266, 268, 269, 273, 276 31–34, 361–62 180 361–62 246–47 299 34–35, 205, 207, 255–56, 368 28, 31–35, 37, 38

test, video recordings, Reliability, admissibility, admissions,

84–85, 86 60, 61–62, 66 82–84 201, 202, 211, 213, 228 80–82 61–62 6–7 6–7 182–83, 360, 366 361–62

children, claimants of deceased estates, 367 common law, 369 confessions, 176, 183–85 disabled persons, 362–63 identification, 6–7, 361 informers, 365–66 judicial warnings, 356–57, 359–70 mental disabilities, 362–63 opinions, 146–47, 149–50 sexual offences, 368 Representations admissions, 156, 159 adverse, 156 contemporaneous, 118–20, 129–30, 132 criminal proceedings, 115–17 duty, under, 117–20 hearsay, 93–94, 105, 113–14, 117–27, 132–33 interest, against, 122–23 prior, 124–6, 132 proceedings, made in other, 123–24 reliable, 121–22, 133 Reputation, 263 age, 130, 133 credibility, 250–51 hearsay, 130–31, 133 public or general rights, 130–31, 133 relationships, 130, 133 sexual history, 204–06 Res gestae, 118–20, 133

204, 208–10, 255 12, 59–67 48–49, 50, 251–52 5–6, 75–85 75, 83–86 159 76 61–62 266–67

76–80, 86 75 75, 85–86 76–77, 86, 244 definition, 76 direct evidence, 76–80, 86 discretion, 83–84 dual, 94 facts in issue, 75–77, 81, 86 hearsay, 94, 101, 105, 131 inferences, 84–85 judgments, 191–92 legal, 82–83 previous convictions, 191–92 proof, 76, 86

380

Index Res judicata, Right to silence,

Secondary evidence, Self-defence, Self-incrimination, Settlement, Sexual offences admissibility, Australian Capital Territory, character, child sexual abuse, coincidence, corroboration, credibility, cross-examination, delay, dispositions, hearsay, judicial warnings, leave, New South Wales, Northern Territory, prejudice, prior statements, prohibitions, Queensland, rape shield provisions, reliability,

194 35–37, 160–63, 177, 181, 186–88

reputation, sexual activities and experience, sexual history, significant probative value, South Australia,

53–55, 62 340 160,

stereotyping, Tasmania, tendency evidence,

308–12, 321 303, 307–08, 320

uniform evidence legislation, Victoria,

204–06 205–06 202–09, 255–56 206 205–06, 207, 256 203–04 206, 207

201–09, 213–14, 229, 237–38

204, 254 205, 205, 207, 229, 255–56, 367–68 Western Australia, 205, 207, 368 witnesses, 34–35 Silence See Right to silence Similar fact evidence, 199–201, 215, 217–18, 222, 224, 238–39 Sources of law, 1–2 South Australia, 3 accused, 37–38 character, 266, 271, 274, 276 children, 31–32, 361 corroboration, 361 credibility, 246 hearsay, 127 judicial notice, 351 right to silence, 161 sexual offences, 34, 205–07, 256 witnesses, 28, 31–34, 37, 38 Standard of proof, 9, 339, 341–45 Subpoenas, 299–300 Summing up, 13 Syndrome evidence, 144–46

203–05, 208, 255 206, 208, 256 271 145, 237–38 201–09, 213–14, 229, 237–38 359, 367–68 243, 253–56, 258 255 254 204–06 254 367–68 206–09, 255–56 205, 206, 255 206, 207–08, 255–56, 368 203 253–54 204–06 205, 207, 255–56, 368 204, 208–09, 255 368

381

Principles of Evidence Tags, 127, 132 Tape recordings See Audio recordings, Video recordings Tasmania, 3 accused, 37–38 admissions, 169–75 character, 269, 276 children, 31–32 confessions, 168–69, 187 credibility, 246 hearsay, 127 judicial notice, 351 privilege, 299 privilege against self-incrimination, 311 sexual offences, 35, 206, 207 witnesses, 28, 31–35, 37, 38 Telecommunications, 128, 132 Telephone conservation, 128–29, 133 Tendency evidence, 197–242 accused, 215–42 admissibility, 197–99, 202, 213, 217, 227–33, 236, 239–40 admissions, 212 character, 216–17, 260–61, 263–64, 266–67, 275 civil proceedings, 197, 199–201, 212 coincidence, 197–242 common law, 199–202, 211–15, 218, 220, 222, 229–34, 238–40 criminal proceedings, 197, 199, 201–13, 215–42 cut throat defence, 210 definition, 199–200 exclusionary rule, 218–29, 238–39 experts, 212

facts in issue, flow chart, inclusionary exception, inferences, joint concoctions, joint trials, multiple counts, notice, opinions, prejudice, presumption of innocence, previous convictions, probative value, propensity evidence, reasonable doubt, relevance, sexual offences, significant probative value, similar fact rule,

similarities, state of mind, terminology, third parties, uniform evidence legislation,

Victoria, witnesses, Testimonial evidence, 382

198 241–42 229–40 220, 230, 235, 239 237 210–12 229 198, 213, 239 212 216, 229–40 234 212, 226, 234 198, 202, 213, 217, 234–40 216–24, 233, 236–40 234 201, 202, 211, 213, 228 201–09, 213–14, 229, 237–38 198, 202, 213, 217, 239 199, 200–01, 215, 217–18, 222, 224, 238–39 236–37, 240 199 215–16 201–02 197–202, 212–24, 229–32, 235, 238–39 216, 218, 229–31, 237, 240 237 11–12

Index Trials admissibility, adversarial proceedings, appeals, civil proceedings, common law, criminal proceedings, joint, judges, juries, voir dire, Ultimate issue rule, Undercover officers, Uniform evidence legislation, accomplices, admissions,

illegally, improperly or unfairly obtained evidence, judgments, judicial notice,

14–15 12–13 16–19 13, 16, 19 12–19 13, 15–19 210–12 13–15 13–15 14–15

330 194 347, 349, 351, 354 judicial warnings, 356–57, 360–63, 369–70 legal professional privilege, 302–04, 306–07 mental disabilities, 363 opinions, 137–38, 140–41, 148, 151–53 perjury, 359–60 previous convictions, 193–96 privilege, 302, 307, 320, 321 privilege against self-incrimination, 308, 310–11 public interest immunity, 312, 315–17 refreshing memory of witnesses, 43–44 relevancy, 77, 83, 86 right to silence, 163 sexual offences, 204, 254 standard of proof, 342 tendency evidence, 197–202, 212–24, 229–32, 235, 238–39 unsworn evidence, 28 views, 65–66 voir dire, 14 witnesses, 27–29, 34, 37, 38, 40–45, 48 Unsworn evidence, 28, 35

152 171

2–3 363, 365 155–59, 164, 165, 167, 352, 366 agreed facts, 354 audio recordings, 62 burden of proof, 339, 341 character, 260–61, 263–64, 267–68, 271–73, 276–79 charts, 64 children, 31, 362 compellability, 28–29 competence, 31 confessions, 167, 177, 181–84, 188 credibility, 244–45, 247–53, 256–58 cross-examination, 47 defamation, 194 disabled persons, 34, 363 documentary evidence, 54–57 excluded evidence, 323–26, 333–34 hearsay, 93–94, 105, 109, 111–14, 117, 119–32 hostile witnesses, 45 identification, 283, 290, 293–97

Victoria, accused, admissions, character, children, confessions,

383

3 37–38 169–75 268, 269, 273, 276 31–34, 362 168–69, 172, 187

Principles of Evidence credibility, criminal proceedings, privilege, right to silence, sexual offences, tendency evidence, witnesses, Video recordings, Views, Visual aids, Voice identification, Voir dire,

246 15 288, 300 161 34, 205, 207. 229, 255–56, 367–68

common law, compellability, competence, corroboration, credibility, criminal proceedings,

216, 218, 229–31, 237, 240 28, 31–34, 37, 38 56, 61–62, 167–75, 187 64, 65–66 63–64, 66 284–85 14–15, 176–77, 179, 341–42

25–27 26, 28–29, 35, 37–38, 49, 300 26–27, 31–32, 35, 37, 49 32, 358–59 46, 243–58

15–16, 30, 40, 43 cross-examination, 45–49, 50 disabled persons, 34, 362–63 elderly, 361–62 examination, 38–50 examination-in-chief, 40–45, 50 experts, 137, 139–45, 212, 275 failure to call, 29–30 families, 37–38 hearsay, 87–90, 94, 114, 124–26, 131–32 hostile, 44–45, 248 identification, 284, 286–95 improper questions, 46 inferences, 29–30, 35–36 judges, 40 leading questions, 40–41, 46 mental disability, 27, 34, 362–63 Northern Territory, 28, 31–34, 37, 38 oaths, 26, 28, 31 opinions, 137, 139–45 prior statements, 46–47, 50, 358–59 privilege, 299–301 privilege against self-incrimination, 308–12 Queensland, 28, 31–35, 37, 38 re-examination, 48–49, 50 refreshing the memory of, 41–44, 50 right to silence, 35–37 sexual offences, 34–35 South Australia, 28, 31–34, 37, 38

Western Australia, 3 accused, 37–38 admissions, 169–75 character, 269, 276 children, 31–34 confessions, 168–69, 187 credibility, 246 judicial notice, 351, 354 privilege, 299 privilege against self-incrimination, 311 sexual offences, 35, 205, 207, 368 witnesses, 28, 31–34, 35, 37–38 Witnesses, 25–50 accomplices, 364–65 accused, 35–38 affirmations, 26 Browne v Dunn rule, 47–48, 50 character, 262, 268–74 children, 27, 28, 30–34, 361–62 civil proceedings, 30, 40 closed circuit television, 33

384

Index subpoenas, Tasmania, tendency evidence, testimonial evidence, unfavourable, uniform evidence legislation,

299–300 28, 31–35, 37, 38 237 11–12 44–45

unsworn evidence, Victoria, Western Australia,

27–29, 34, 37, 38, 40–45, 48

385

28, 35 28, 31–34, 37, 38 28, 31–34, 35, 37, 38