Uniform Evidence Law

BULLETIN 39 NOVEMBER 2012

Stephen J Odgers SC

 This Bulletin contains highlights of the most significant material to be released in the forthcoming Update 45 of the Uniform Evidence Law (Subscription)

Material Code 30176116 Print Post Approved PP255003/00340 Cases referred to in this Bulletin are as follows:

Ahmed v The Queen [2012] VSCA 200 AJE v Western Australia [2012] WASCA 185 Australian Securities & Investments Commission v Rich (2004) 51 ACSR 363; [2004] NSWSC 1062 Azizi v The Queen [2012] VSCA 205 Bangaru v R [2012] NSWCCA 204 Banjima People v State of Western Australia [2011] FCA 1454; 200 FCR 138 Browne v Dunn (1893) 6 R 67 Camm v Linke Nominees Pty Ltd (No 3) [2012] FCA 1133 Douglass v The Queen [2012] HCA 34 ES v The Queen (No2) [2010] NSWCCA 198 Evans v The Queen [2007] HCA 59; 235 CLR 521 Frengos v The Queen [2012] VSCA 18 Great Southern Managers Australia Limited v Clarke [2012] VSCA 207 Jamal v R [2012] NSWCCA 198 Jones Lang LaSalle (NSW) Pty Ltd v Taouk [2012] NSWCA 342 KMB v Western Australia [2010] WASCA 212 Kwan v Kang [2003] NSWCA 336 Lin v Tasmania [2012] TASCCA 9 N O M v DPP [2012] VSCA 198 New South Wales Crime Commission v Cassar [2012] NSWSC 1170 Patel v The Queen [2012] HCA 29 Potts v Miller [1940] HCA 43 Prothonotary of the Supreme Court of New South Wales v Livanes [2012] NSWCA 325 R v Debono [2012] VSC 476 R v Gale; R v Duckworth [2012] NSWCCA 174 R v Michael Anthony Ryan (No 2) [2012] NSWSC 1034 R v Taylor [2008] ACTSC 52 SKA v Regina [2012] NSWCCA 205 Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 Stubley v Western Australia [2010] WASCA 36 The Prothonotary of the Supreme Court of New South Wales v Sukkar [2007] NSWCA 341 Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 637 Walford v Director of Public Prosecutions (NSW) [2012] NSWCA 290 WAQ v Di Pino [2012] QCA 283

Section 46 – Leave to recall witnesses

There will be no breach of the rule in Browne v Dunn (1893) 6 R 67 from failure to cross-examine a party where the “party, in its own case, has adduced evidence which contradicts evidence otherwise given by that party”, since where “there is divergence within the evidence led by a party, the responsibility lies with the party leading it to explain the divergence”: WAQ v Di Pino [2012] QCA 283 at [31]-[33].

2 Section 53 – Views

In Jamal v R [2012] NSWCCA 198 the NSW Court of Criminal Appeal held that s 53(2)(a) confers an entitlement on the defendant in criminal proceedings (a “party” under s 53(2)(a)) to be present at the demonstration, experiment or inspection (at [26]- [41]). The conduct of a view in breach of the statutory requirement to provide the defendant with a reasonable opportunity to be present constitutes a fundamental flaw in the trial process (at [46]).

Section 55 – Relevant evidence

- Only in the most unusual circumstances will the reasoning described in Jones v Dunkel be available with respect to the failure of a criminal accused to adduce particular evidence. The same principles apply to constrain permissible cross-examination of the defendant about the failure to adduce evidence: Frengos v The Queen [2012] VSCA 18 at [27]; Ahmed v The Queen [2012] VSCA 200 at [16].

- In Jones Lang LaSalle (NSW) Pty Ltd v Taouk [2012] NSWCA 342, Meagher JA (McColl JA and Sackville AJA agreeing) observed at [37] that, ordinarily, a party cannot advance on appeal a basis for relevance that was not advanced at first instance:

Ordinarily, such an explanation cannot be given for the first time in argument on appeal because there will not have been any "improper" admission or rejection of evidence and because of the prejudice to the other parties in a party being permitted to justify the tender on grounds not argued or sufficiently argued before the primary judge. That prejudice will arise in relation to rejected material if those parties could possibly have addressed it by further evidence, including through cross-examination. … This reflects the fundamental principle that a party is bound by the conduct of his or her case and that it is only in exceptional circumstances that after a case has been decided against him or her, a party is allowed to raise a new argument which, whether deliberately or by inadvertence, was not put during the hearing when the opportunity was available.

Meagher JA rejected contrary authority which suggested that where evidence is tendered on an untenable basis and rejected, an appeal may be brought if the evidence was admissible on an alternative basis (although not argued).

Section 56 – Relevant evidence to be admissible

- Where there is an objection to admissibility on the basis that the requirement of relevance is not satisfied, it is for the party tendering the evidence or asking a question to make clear to the court the purpose for which the evidence is tendered and how it becomes relevant and admissible: Jones Lang LaSalle (NSW) Pty Ltd v Taouk [2012] NSWCA 342, Meagher JA (McColl JA and

3 Sackville AJA agreeing) at [30], citing Potts v Miller [1940] HCA 43; 64 CLR 282 at 292 per Starke J.

- In Jones Lang LaSalle (NSW) Pty Ltd v Taouk [2012] NSWCA 342, Meagher JA (McColl JA and Sackville AJA agreeing) stated at [33]:

It is not necessary nor practicable that every ruling about the admissibility of evidence be accompanied by reasons. Nor is it possible to formulate a single criterion by reference to which it can be judged whether reasons should be given. Cases which involve the exercise of a discretion or where admissibility depends on the resolution of some intermediate question of fact or law, may warrant the giving of short reasons. Whether that is so will also depend on the perceived importance of the evidence involved and the likely effect of its rejection or admission on the outcome of the case: see Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 260, 279; Kwan v Kang [2003] NSWCA 336 at [113]-[114]; Evans v The Queen [2007] HCA 59; 235 CLR 521 at [34]. However, if a party wants to preserve fully its rights to challenge a particular ruling on appeal and the basis for rejection or admission is not clear from the argument, it should press for that basis to be stated, however shortly.

Section 57 – Provisional relevance

In New South Wales Crime Commission v Cassar [2012] NSWSC 1170, Rothman J stated at [41]: “As Austin J held in ASIC v Rich [2005] NSWSC 417, while evidence of the authenticity or authentication of a document cannot be achieved solely by drawing inferences on the face of the document and something more is necessary, the nature of the document may mean that only a small amount of evidence is necessary in order to draw the inference as to the document's authenticity. Nevertheless, authenticity cannot be achieved solely from the document itself.”

Section 65 – Exception: criminal proceedings if maker not available

Given the terms of s 65(2)(b) (“was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication”), there must be evidence to enable a judgment to be made as to the temporal connection between the occurrence of the asserted fact and the making of the representation: Azizi v The Queen [2012] VSCA 205 at [47].

Section 69 – Exception: business records

In Lin v Tasmania [2012] TASCCA 9 the Tasmanian Court of Criminal Appeal observed that reasonable inferences could be drawn from the circumstances in which documents were obtained as well as “the nature of the representations and how they appear on the relevant documents” (Tennant and Porter JJ at [91]).

4 Section 75 – Exception: interlocutory proceedings

It has been held that a voir dire pursuant to s 189 is not an “interlocutory proceedings” for the purposes of this provision (Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 637). However, the contrary view has been taken in New South Wales Crime Commission v Cassar [2012] NSWSC 1170, where Rothman J (without referring to this earlier authority) held at [44]-[46] that a voir dire to determine the admissibility of business records was an “interlocutory proceeding” for the purposes of this provision.

Section 92 – Exceptions

It is important to note that the exception created by s 92(2) to the prima facie rule in s 91 (that evidence of a decision or judgment, or a finding of fact, in a proceeding is not admissible to prove some fact that was in issue in those proceedings) is for “evidence that a party … has been convicted of an offence”. It does not extend to evidence of any factual findings made by a court (for example, the court sentencing the person convicted of the offence): The Prothonotary of the Supreme Court of New South Wales v Sukkar [2007] NSWCA 341 at [9]; Prothonotary of the Supreme Court of New South Wales v Livanes [2012] NSWCA 325 at [9]-[10].

Section 97 – The tendency rule

In Bangaru v R [2012] NSWCCA 204, Beech-Jones J (Beazley JA and Hall J agreeing) stated at [279] that alleged similar representations were sufficiently probative to satisfy the requirements of this provision because the substance of the representations was similar, whereas “[i]f, however, the critical fact in issue for each count was whether the appellant had uttered certain specific words, as was the case in Jacara, then a different outcome may have resulted”.

Section 98 – The coincidence rule

- Where it is contended that two robberies must have been committed by the same person or persons because of striking similarities in the way they were committed, evidence that the defendant(s) committed one may thereby prove they committed the other, with which they are charged: R v Gale; R v Duckworth [2012] NSWCCA 174, Simpson J (McClellan CJ at CL and Fullerton J agreeing) at [34](ii).

- It is important to note that the court is required to determine the admissibility of “[e]vidence that 2 or more events occurred … to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally”. Thus, focussing on proof of a particular act, similarities in the events and/or their circumstances are being used to prove that particular act. It would not be logical to assume or reason that that person did the particular act (the fact in 5 issue sought to be proved) in order to establish the requisite similarity. In R v Gale; R v Duckworth [2012] NSWCCA 174, the NSW Court of Criminal Appeal considered a case where it was contended that two robberies must have been committed by the same persons because of similarities in the way they were committed and that proof that the defendants committed one might thereby prove they committed the other. Some of the suggested similarities in the two robberies assumed that the defendants had committed both robberies (or relied upon evidence from an informer to that effect). Simpson J (McClellan CJ at CL and Fullerton J agreeing) stated at [37]:

Some of the asserted similarities expose a serious logical fallacy in the argument. The [asserted similarities] are all, far from being established similarities (or similarities capable of being established), the very facts that the DPP seeks to prove by the coincidence evidence. This involves, in my opinion, a misunderstanding of the note to s 98. The note permits an "event" to be the subject of coincidence evidence, even where its occurrence is a fact in issue in the proceeding. The Crown cannot use the (asserted) presence of [one defendant] at both events to prove that [that defendant] was present at the [robbery for which the defendant was on trial]. The argument is a classic instance of "begging the question" (properly so called). It assumes the very facts that the DPP seeks to prove. In my opinion, similarities for the purposes of s 98 must be capable of proof by means other than the "facts" sought to be established.

It did not matter that there was evidence from an informer of the particular similarities – it was not permissible to reason that they had committed both robberies in a similar way in order to prove that they had committed the robbery for which they were on trial.

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

In ES v The Queen (No 2) [2010] NSWCCA 198 Hodgson JA held at [59]–[60] that evidence was “admissible as context evidence” (and not “tendency evidence” or “coincidence evidence”) where it “did no more than fill out what was, on the complainant’s account, a rounded and realistic picture of the relevant relationship between herself and the appellant”. Adams J (Hislop J agreeing) stated in SKA v Regina [2012] NSWCCA 205 at [275]-[277]:

the evidence is definitely not adduced to "set what occurred in context". It is adduced merely to set the evidence of the complainant as to the charged acts in context so that her evidence as to those matters (not the facts) can be fairly understood. … the evidence, as contextual, was admissible for the purpose alone of enabling the complainant to give a coherent account and, in that sense, to avoid the apparent lack of credibility which a partial account might have.

6 Section 114 – Exclusion of visual identification evidence

- It is provided in s 114(2) 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 …” The reference to “such a parade” in s 114(2)(b) is ambiguous. It could mean “an identification parade that included the [defendant/accused]” or it could mean “an identification parade that included the [defendant/accused] held before the identification was made”. If it meant the former, visual identification evidence would not be admissible if it would have been “reasonable” to have held an identification parade at any time prior to the adducing of the evidence, regardless of when the “identification” was made. There may be good policy reasons to support such an approach. However, the NSW Court of Criminal Appeal has favoured the latter interpretation: Walford v Director of Public Prosecutions (NSW) [2012] NSWCA 290, Hoeben JA at [69]-[75] (see also Basten JA at [27]).

- In R v Taylor [2008] ACTSC 52 Rares J appears to have held that “before the identification was made” in s 114(2)(a) means in all cases “at any time before the evidence of the identification is given at the trial”. However, the NSW Court of Criminal Appeal has expressly rejected the approach of Rares J: Walford v Director of Public Prosecutions (NSW) [2012] NSWCA 290, Hoeben J at [68]. The meaning of the term “the identification” is not entirely clear. It could mean an “assertion by a person to the effect that a defendant was, or resembles … a person” present “at or about the time” the crime (or connected act) in question was committed (see definition of “identification evidence”: [1.3.9530]). Alternatively, it could mean the time when the person believed, rather than asserted, that “a defendant was, or resembles … a person” present “at or about the time” the crime (or connected act) in question was committed. While the courts have not been required to resolve this issue, the former is the preferable interpretation because the “making” of an “identification” seems more consistent with the act of asserting something than the existence of a particular state of mind. However, in practice, it is unlikely that these two possible interpretations will produce different outcomes, because if it would not have been reasonable to have held an identification parade before one, it will almost always not have been reasonable to have held an identification parade before the other, and vice versa. What is important to emphasise is that “the identification” is not the giving of evidence of the assertion in the proceeding – it is the making of the assertion or the formation of the state of mind prior to the making of the assertion. Such an assertion may be made in court (a “dock identification”) or out of court.

Section 124 – Loss of client legal privilege: joint clients

- This provision has application to proceedings in connection with which two or more parties have the requisite joint interest. It is not restricted to litigation between such parties. That parties other than the joint privilege holders might gain access to material the subject of the joint privilege is a concomitant 7 feature of litigation being conducted in open court: Great Southern Managers Australia Limited v Clarke [2012] VSCA 207 at [31].

- It is not a requirement of a joint retainer that a specific contractual document be entered into between each of the parties and the lawyer, nor is it required that each party communicate directly with or instructed the lawyer or that the lawyer direct any advice to each of the parties. This analysis was confirmed by the Victorian Court of Appeal: Great Southern Managers Australia Limited v Clarke [2012] VSCA 207 at [21]-[22]. The Court stated at [23]: “The better view is, as we have said, the view taken at first instance – namely that the joint retention requirement of s 124(1) is met when one of the joint privilege holders retains the lawyer for its own benefit and for the benefit of the other joint privilege holders”.

Section 130 – Exclusion of evidence of matters of state

In R v Debono [2012] VSC 476, Kyrou J at [28] applied the following observations to this provision: “The claim for immunity must be articulated with rigour and precision, and supported by evidence demonstrating the currency and sensitivity of the information, so as to constitute a compelling case for secrecy. Anything less will be unlikely to suffice”.

Section 137 – Exclusion of prejudicial evidence in criminal proceedings

In Patel v The Queen [2012] HCA 29 French CJ, Hayne, Kiefel and Bell JJ considered whether evidence suggesting incompetence by a surgeon in performing operations would unfairly prejudice consideration of an allegation that the surgeon was negligent in recommending surgery in the first place. The plurality stated at [113]:

Despite the fact that the trial judge gave careful and succinct directions as to some of the most prejudicial evidence, such as evidence of errors in surgery, it cannot be concluded that the directions were sufficient to overcome the prejudicial effects of the evidence, individually and collectively, upon the jury.

The plurality added at [128]-[129]:

It would be expecting too much of a jury to attend to its task of determining the appellant's guilt on the four charges on the basis only of the appellant's judgment about whether to operate, putting to one side all that it had seen and heard concerning his competencies in other areas and his deficiencies as a person. … The sheer extent of the prejudicial evidence in the context of a wide-ranging prosecution case is likely to have overwhelmed the jury. The jurors were not given directions that they must exclude much of it from their minds. In practical terms any such directions would have been useless.

8 Section 138 – Discretion to exclude improperly or illegally obtained evidence

- Removal of documents without the authority of the custodian of those documents means the documents have been “improperly … obtained” (even though the circumstances in which this occurred are unknown): Camm v Linke Nominees Pty Ltd (No 3) [2012] FCA 1133 at [10].

- It has been held that suggesting to a witness that the police will overlook the making of a false statement to them, if the witness “tells the truth”, is not “improper” given that “the police are not powerless to press an unwilling, uncooperative or recalcitrant witness to disclose what they know”: R v Michael Anthony Ryan (No 2) [2012] NSWSC 1034 at [69]-[70].

Section 140 – Civil proceedings: standard of proof

The Victorian Court of Appeal has emphatically adopted the view that this provision embraces the “Briginshaw principle”, notwithstanding the language used and the clearly stated view of the ALRC to the contrary. In N O M v DPP [2012] VSCA 198, Redlich JA, Harper JA and Curtain AJA, after a discussion of the authorities, concluded at [124] that there is now a “settled” view that a “[m]ere mechanical comparison of probabilities independent of a reasonable satisfaction will not justify a finding of fact. The fact finder must feel an actual persuasion of the occurrence or existence of the fact in issue before it can be found”.

Section 141 – Criminal proceedings: standard of proof

- Even if the tribunal of fact was not persuaded by the defendant’s evidence, a verdict of guilty requires satisfaction that it was not reasonably possibly true: Douglass v The Queen [2012] HCA 34 at [13].

- The Victorian Court of Appeal has concluded that a direction is generally required in respect of proof beyond reasonable doubt where evidence is adduced for tendency reasoning, and will also be required even if adduced for non-tendency reasoning (eg as relationship evidence), if there is a real risk that the jury will engage in tendency reasoning. The Western Australian Court of Appeal has followed Victorian authority: AJE v Western Australia [2012] WASCA 185 at [61]-[67] (although see also Stubley v Western Australia [2010] WASCA 36 at [159]–[160], [390]; KMB v Western Australia [2010] WASCA 212 at [3], [153]).

Section 165 – Unreliable evidence

It would be permissible for the trial judge to tell the jury that the warning given under the common law where the prosecution case depends on one witness was "required" to be given "as a matter of law": SKA v Regina [2012] NSWCCA 205, [249]-[259]; [306]- [307].

9 Division 1 – Requests to produce documents or call witnesses

The provisions of this Division may give rise to difficulties of application in criminal cases. Tennant and Porter JJ observed in Lin v Tasmania [2012] TASCCA 9 at [141]:

As the Trimcoll appeal case shows, the reasonableness of a request has to be assessed in the context of where the burden of proof lies as to the ultimate issue, and who it is who proffers the evidence. Where there is incriminating evidence in the form of business records or other documents or things to which s 167 applies, the provisions provide important procedural safeguards. At the same time as care needs to be exercised to ensure that the safeguards are available to an accused person, care must be taken to avoid the situation where an accused can stultify or frustrate a prosecution by use of the request procedure. However, it has to be borne in mind that a person under caution, or having been charged with an offence, has the privilege against self- incrimination and is under no obligation to assist in the investigation or prosecution.

Tennant and Porter JJ observed at [142] that, “[s]peaking generally, in a criminal case where business records relied on by the prosecution do not identify the makers of the relevant representations, a request under s 167 which does not specify the persons to be called could not immediately be viewed as unreasonable”. Further, “it is difficult to see how evidence, or an inference properly drawn, that the accused had actual or available knowledge of identity, would make unreasonable an otherwise reasonable request”. An applicant under s 169 bears the onus of showing that the request under s 167 was a reasonable one: Lin v Tasmania [2012] TASCCA 9, Tennant and Porter JJ at [131]. However, whilst the onus would be also on an applicant to ultimately persuade a court that an order should be made under s 169, once the reasonableness of the request had been established, the onus would lie on the party of whom the request had been made, to demonstrate that there was reasonable cause for the failure or refusal to comply: Lin v Tasmania [2012] TASCCA 9, Tennant and Porter JJ at [131]. In a criminal case where business records relied on by the prosecution did not identify the makers of the relevant representations, and a request was made by the defence that the makers be called as witnesses, Tennant and Porter JJ were not positively satisfied that the prosecution had established reasonable cause not to comply with the request. They observed at [143] – [145]:

[T]he prosecution would need to show reasonable cause for failing to call the witnesses. If the asserted basis is that the prosecution does not know the identity of the makers, evidence to that effect, and evidence as to what steps had been taken to establish their identity might be expected. That may include evidence of efforts made to have the accused identify the makers, and whether the accused was under caution or had been charged would be relevant to such efforts. If reasonable cause is shown on that basis, a pre-condition to orders under s169 is not met. It might be expected that at least ordinarily, an inference

10 that the accused had actual or available knowledge could not of itself establish reasonable cause.

The evidence might show that the prosecution has made reasonable but fruitless inquiries, and that there are no means of identifying the makers independently of the accused; or to put it another way, the accused exclusively has the relevant knowledge or the ability to readily acquire it. We observe that an accused with exclusive actual or available knowledge has a choice of informing the prosecution of the identity of the makers, so that they can be called in the trial for cross-examination, or of calling the persons himself, or do nothing about the witnesses and argue the weight which should be attributed to the representations. Alternatively, it is conceivable that the prosecution cannot show reasonable cause, but that the court concludes that the accused has actual or available knowledge. That may impact on the ultimate exercise of the discretion. …

In any of the postulated scenarios the weight to be attributed to the state of the accused's knowledge may need to be measured having regard to one aspect of the competing considerations which we earlier mentioned. That is, the fact that the proceedings are criminal ones and that the accused is under no obligation to assist in an investigation, at least to the extent of self-incrimination. Much would depend on the circumstances of the case; in particular the nature of the representations, and of the documents containing them, which are the subject of the request.

Section 189 – The voir dire

In Banjima People v State of Western Australia [2011] FCA 1454; 200 FCR 138, Barker J of the Federal Court agreed with the approach taken by Austin J in Rich at [20] Australian Securities & Investments Commission v Rich (2004) 51 ACSR 363; [2004] NSWSC 1062 that evidence on a voir dire in a civil proceeding without a jury is, when taken, evidence in the proceeding, unless some order is made qualifying its status or significance under s 135 or s 136 of the Evidence Act 1995.