Bulletin 40JANUARY 2013

Uniform Evidence Law

Stephen J Odgers SC

  • This Bulletin contains highlights of the most significant material to be released in the forthcoming Update 47 of the Uniform Evidence Law (Subscription)

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Cases referred to in this Bulletin are as follows:

Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd[2012] NSWCA 430

Ashby v Commonwealth of Australia (No 2) [2012] FCA 766

Australian Competition and Consumer Commission v Air New Zealand Limited (No 1) [2012] FCA 1355

Brown v New South Wales Trustee and Guardian[2012] NSWCA 431

Chaina v Presbyterian Church (NSW) Property Trust (No 1)[2012] NSWSC 1476

DPP v Azizi (Ruling No 2) [2012] VSC 600

Dupas v The Queen [2012] VSCA 328

Greensill v The Queen [2012] VSCA 306

Italiano v WA [2012] WASCA 260

Kuehne v R; Humphries M v R; Humphries A v R[2012] NSWCCA 270

Lithgow City Council v Jackson [2011] HCA 36

Liu v Fairfax Media Publications Pty Ltd[2012] NSWSC 1352

McCartney v The Queen [2012] VSCA 268

Peacock v The Queen [2008] NSWCCA 264

R v Ciantar (2006) 16 VR 26; 167 A Crim R 504; [2006] VSCA 263

R v Dupas [2011] VSC 180

R v Leung[2012] NSWSC 1451

R v Ortega-Farfan [2011] QCA 364, 215 A Crim R 251

R v Sarbandi [2012] ACTSC 180

RGM v The Queen [2012] NSWCCA 89

Spencer v Commonwealth of Australia [2012] FCAFC 169

Introduction

The Evidence (National Uniform Legislation) Act 2011 (NT)commenced on 1 January 2013.The Act is in most respects uniform with the Commonwealth Evidence Act 1995 and the other UEL Acts, although minor drafting variations have been required to accord with the drafting style of the Northern Territory.However, some differences should be noted:

  1. Improper questions (s41). The Commonwealth/NSW/ACT general provision in s41(1) is mandatory (“must disallow a question put to a witness in cross-examination, or inform the witness that it need not be answered”), in contrast with the comparable Victorian/Northern Territory provision (“may disallow …”). However, the Victorian/Northern Territory provision creates a special category of improper questioning of a “vulnerable witness” (defined in s41(4)) where the court “must” act “unless the court is satisfied that … it is necessary for the question to be put” (s41(2)). The Commonwealth/NSW/ACT provision deals only with an improper “question” while the Victorian/Northern Territory provision also deals with “improper questioning” (defined in s41(3) to mean “a sequence of questions”). The Commonwealth/NSW/ACT provision defines an improper question in terms of the court’s “opinion” that it falls into a specified category (and requires the court to take into account the matters specified in s41(2) in forming that opinion), while the Victorian/Northern Territory provision defines “an improper question or improper questioning” simply in terms of those categories.
  2. Professional confidential relationship privilege (Div1A of Pt 3.10). The NSW Act permits a court to “direct that evidence not be adduced in a proceeding if the court finds that adducing it would disclose a protected confidence” or related information. The Commonwealth/Victorian/ACT/Northern Territory Acts contain no such general “privilege”, although there is a “journalist privilege” in the Commonwealth/NSW and Victorian Acts.
  3. Privilege in preliminary court proceedings (s131A). This provision in the NSW/Victorian/ACT/Northern Territory Acts extends the application of the privileges in Pt3.10 (other than the provisions of s123 and s 128) to pre-trial stages of civil and criminal proceedings. The Commonwealth provision is much more limited.
  4. Jury warning in respect of delay in prosecution (s165B). In s165B(2) of the Commonwealth/Victorian/ACT/Northern Territory Acts, application for the giving of a warning to the jury must be made by “the defendant”, while under the comparable NSW provision it may be made by “a party” (which would include the prosecutor). The NSW/Northern Territory provision, unlike the other UEL Acts, expressly provides that a “significant forensic disadvantage” includes “the fact that any potential witnesses have died or are not able to be located” and “the fact that any potential evidence has been lost or is otherwise unavailable” (s165(7)).
  5. Definition of person who is “not available to give evidence about a fact”. All UEL Acts except the Commonwealth Act provide in cl 4(1) of Part 2 of the Dictionary that, as well as the other circumstances specified, a person is not available to give evidence about a fact if “the person is mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability”. There is no such provision in the Commonwealth Act.

In Dupas v The Queen [2012] VSCA 328 the Victorian Court of Appeal considered the operation of s 137 of the Act and observed at [164]:

It is presumed that a statute is not intended (in the absence of express words) to alter common law doctrines. A strict reading and careful scrutiny of the language of the Act is therefore necessary, in order to determine whether it was the will of the legislature to remove or encroach upon those doctrines.

However, care must be taken with this passage.The authorities relied upon to support it were largely concerned with legislative infringement of “fundamental” or “basic” common law rights and freedoms and it would be too broad to suggest that “common law doctrine” extends to any aspect of the common law rules of evidence. Given that the Act constitutes a major reform of the law of evidence, not a mere restatement in statutory form of common law and earlier statutory rules of evidence, care must be taken in interpreting its provisions in the context of pre-existing law.

Section 46 – Leave to recall witnesses

It appears clear that the rule in Browne v Dunn may be breached by failure to cross-examine a witness called by a co-defendant: see Italiano v WA [2012] WASCA 260, Mazza J at [114].

Section 55 – Relevant evidence

In R v Ciantar (2006) 16 VR 26; 167 A Crim R 504; [2006] VSCA 263 the Victorian Court of Appeal held at [40] that an inference of consciousness of guilt may not be open from evidence of post-offence conduct where, considered in the context of all of the evidence in the proceeding, the conduct is “intractably neutral” (see also at [72]). The Queensland Court of Appeal in R v Ortega-Farfan [2011] QCA 364, 215 A Crim R 251 adopted this analysis when it held (Fraser JA at [54]) that evidence of a question asked by the defendant was “intractably neutral”.It is also important to appreciate that, in some circumstances, evidence that will not be admitted in the proceeding may bear on the relevance (and probative value) of circumstantial evidence.For example, in R v Ortega-Farfan [2011] QCA 364, 215 A Crim R 251 the Queensland Court of Appeal held that the potential significance of various statements made by a defendant relied on by the prosecution to support an inference of consciousness of guilt was affected by the context of those statements, which had been excluded by the trial judge in the exercise of discretion – exclusion of that context meant that “the jury were in no position to make any meaningful assessment of the significance of the appellant’s allegedly incriminatory statements” (Fraser JA at [59]).

It may not be open to draw an inference of consciousness of guilt from circumstantial evidence of the conduct of the defendant quite apart from any innocent explanations for that conduct.For example, the NSW Court of Criminal Appeal held in Kuehne v R; Humphries M v R; Humphries A v R[2012] NSWCCA 270 that “delay” in defendants approaching the police to give their account of relevant events (which accounts were later relied upon by the defence at trial) could bear on the credibility of those accounts but could not be used to infer consciousness of guilt, quite apart from any consideration that to do so might infringe the “right to silence”.It was held that the delay was not capable of constituting an implied admission (Latham J at 7) and would involve impermissible circular reasoning (Fullerton J at 69).

Section 57 – Provisional relevance

Section 58 – Inferences as to relevance

In Australian Competition and Consumer Commission v Air New Zealand Limited (No 1) [2012] FCA 1355, Perram J reviewed the authorities and concluded that National Australia Bank Ltd v Rusu(1999) 47 NSWLR 309; [1999] NSWSC 539 was “plainly wrong”, holding at [98] that “the question for the [court] is not, as Rusu suggests, whether the document proves itself. The question is whether it is relevant. If it is alleged not to be authentic it will still be relevant as long as there is material from which its authenticity may reasonably be inferred. By s 58(1), that material expressly includes what may reasonably be inferred from the document itself”.Perram J provided a useful statement of “basic propositions” at [92]:

  1. There is no provision of the Evidence Act which requires that only authentic documents be admitted into evidence. The requirement for admissibility under the Act is that evidence be relevant, not that it be authentic. On some occasions, the fact that a document is not authentic will be what makes it relevant, ie, in a forgery prosecution. In other cases, there may be a debate as to whether a particular document is or is not authentic, for example, a contested grant of probate where it said that the testator’s signature is not genuine.
  2. In cases of that kind, the issue of authenticity will be for the tribunal of fact to determine. In cases heard by a judge alone, this will be the judge at the time that judgment is delivered and the facts found. In cases with a jury, it will be the jury.
  3. The question of what evidence will be admitted is a question of law for the tribunal of law, which will be the Court.
  4. Since authenticity is not a ground of admissibility under the Evidence Act, the issue of authenticity does not directly arise for the tribunal of law’s consideration at the level of objections to evidence.
  5. What does arise for its consideration is the question of relevance under s 55. If the evidence is relevant it is admissible: s 56. It will be relevant under s 55 if the evidence is such that ‘if it were accepted, [it] could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue’.
  6. The question of a document’s authenticity is relevant only to the tribunal of law’s consideration of relevance under s 55. It has no other role.
  7. In that inquiry, the question for the tribunal of law is not whether the document is authentic but whether receipt of the document could, to paraphrase s 55, rationally affect the assessment of the probability of a fact.
  8. If there is raised a question about the authenticity of a document (and assuming that, if authentic, it would otherwise be relevant to an issue) then there will be an issue in the proceedings about its authenticity. This will be a question for the tribunal of fact to resolve, if the document is admitted.
  9. The question for the tribunal of law, by contrast, will be whether the document is relevant to a fact in issue under s 55. That is, the question will be whether the document can rationally affect the assessment of the probabilities of the fact, including its authenticity.
  10. What materials may be examined in answering this question? The answer is provided by s 58 ….

Section 67 –Notice to be given

A Victorian Supreme Court judge declined to make a direction under s 67(4) (admitting hearsay despite a failure to give proper notice) in a case where the evidence in question was relevant and “important” because the prosecution had failed to provide an explanation as to why proper notice had not been given and admission of the evidence would result in incurable unfairness and injustice to the defendant as well as disrupt and compromise the proper conduct of the trial.Kaye J observed in DPP v Azizi (Ruling No 2) [2012] VSC 600 at [21] that, if there had been proper notice, “the defence may well have taken a quite different approach both in preliminary openings to the jury and in cross-examination of the two witnesses whose evidence has been completed”.Further, he noted at [22] that admission of the evidence at the stage the trial had reached would give it “undue prominence and excessive weight in the atmosphere of a criminal trial”, which prejudice to the defence “could not be offset by any appropriate direction by me”.He also observed at [27]-[28] that if the evidence were admitted “there would be disproportionate delay in a trial which otherwise is to be of quite short and concise duration”, as well as “insurmountable procedural difficulties” created.

Section 69 –Exception: business records

In Australian Competition and Consumer Commission v Air New Zealand Limited (No 1) [2012] FCA 1355, Perram J regarded the observations in the High Court in Lithgow City Council v Jackson [2011] HCA 36 (“the construction of ‘asserted fact’ to include an opinion in relation to a matter of fact, though convenient, is a little strained”) as dicta and, in any event, did not “accept that the mere fact that an interpretation is ‘strained’ means inevitably it is wrong” (at [65]). Perram J followed authority that “an opinion as to the existence of a fact falls within the scope of the term ‘asserted fact’ in s 69” (at [62]-[65]).

In Australian Competition and Consumer Commission v Air New Zealand Limited (No 1) [2012] FCA 1355, Perram J stated at [59]:

Of course, not every email sent or received by an employee to or from his or her work email address will be for work purposes but this does not mean that it ceases, as a result, to be a business record. One justification for email retention is to ensure and/or encourage responsible email use and this, by itself, is probably a purpose of the business. In practice, the communications contained in a personal email from a work address are unlikely to satisfy the requirements of s 69(1)(b); that is, the representations contained in them will not have been made in the course of or for the purposes of the business, but this does not mean that they are not business records.

Section 80 –Ultimate issue and common knowledge rules abolished

In R v Dupas [2011] VSC 180 the trial judge admitted general defence expert evidence about the weaknesses of identification evidence, the displacement effect and the media misinformation effect (as well as explanation by means of general examples how each of these factors could affect reliability), rejecting a prosecution argument that the probative value of the evidence would be substantially outweighed by the danger that the evidence might be unfairly prejudicial to the prosecution or misleading or confusing. It was not argued that admitting such expert evidence would cause undue waste of time, notwithstanding the fact that strong judicial directions would be given as to the dangers and problems with the identification evidence. The trial judge considered that the evidence “would support, rather than undermine, the force of the judicial directions as to the dangers and problems with the identification evidence”. On appeal, the Victorian Court of Appeal endorsed that analysis: Dupas v The Queen [2012] VSCA 328 at [243]-[283].

Section 90 –Discretion to exclude admissions

Where what is said by a person who is subsequently a criminal defendant is a “protected confidence” as defined in s 126A of the NSW Act, this will be a significant consideration supporting a conclusion that use of the confidence against the defendant will be unfair (quite apart from the operation of s 126B) – in R v Leung[2012] NSWSC 1451, Price J observed at [22]:

[T]he relationship between a clinical nurse specialist who is called to a police station to make a mental health assessment and an accused person is a protected relationship under s 126A Evidence Act. Ensuring that a person in custody is not a risk of self-harm is a matter of importance not only to the police force but to our society as a whole. It is fundamental to the reliability of the assessment that accused persons be able to speak freely to the health professional without fear that their conversation might be used in evidence against them. To be balanced against that consideration is the public interest in solving serious crimes such as manslaughter. However, it is unlikely that accused persons in custody would co-operate in a mental health assessment if they understood that the interview was not to be confidential.

Section 101A –Credibility evidence

The Victorian Court of Appeal has concluded that the analysis adopted in Peacock v The Queen [2008] NSWCCA 264 and RGM v The Queen [2012] NSWCCA 89 should not be accepted.In Dupas v The Queen [2012] VSCA 328, a five judge court unanimously held at [263] that it was “unable to accept” the distinction between “evidence going only to the credibility (truthfulness) of the witness and … evidence going only to the credibility (reliability) of the evidence given by that witness”, since “it is not possible to reconcile the view of the majority in Peacock with the definitions in the Dictionary of the Act”.Accordingly, “credibility” imports notions of reliability as well as truthfulness (see [1.3.7610]).As the Court of Appeal concluded at [266], “for the purpose of the credibility rule, the Act has removed any distinction between credibility and reliability, in relation both to the witness and to the witness’s evidence”.

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

In Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd[2012] NSWCA 430 the NSW Court of Appeal considered the application of the principle of “inconsistency” in circumstances of “mistake”.Campbell JA (Macfarlan JA and Sackville AJA agreeing) held at [104] that this provision did not apply where injunctions were sought restraining use and ordering return of allegedly “privileged” documents. However, Campbell JA (Macfarlan JA agreeing) also held that, if it did apply, client legal privilege has been waived in circumstances where the documents had been disclosed in a formal discovery process by mistake (mistakenly believing that the documents were not privileged) but there was a three month delay between discovery and the making of the claim of mistake (during which time the documents had been read by lawyers for the opposing party) and “it would not be obvious to a reasonable solicitor that a mistake had been made” (at [179]).

Section 131 –Exclusion of evidence of settlement negotiations

There is no reason on the face of the provision to limit it to a communication relied on as an admission.In Liu v Fairfax Media Publications Pty Ltd[2012] NSWSC 1352, Beech-Jones J held at [79] that “[n]either the words of the section nor its legislative origins support the proposition that s 131(1) only operates to exclude admissions made by a party to such communication whether by words or conduct, express or implied”. Beech-Jones J at [81]-[87] also rejected a submission that the phrase “persons in dispute” in s 131(1) is confined to persons in dispute in the litigation in which the issue arises. Beech-Jones J held that s 131(5)(b) applies where the communication or document is “only referable to an attempt to negotiate the settlement of an anticipated criminal proceeding”- it does not apply where the dispute is about a matter that might have both civil and criminal consequences, even if criminal proceedings were pending or reasonably anticipated (at [107]-[117]). Beech-Jones J held, after a discussion of the history of the provision and the applicable authorities, that (at [123]-[125]):