Admissibility

Relevance

Relevance is defined in s55 as being …

A test of logical relevance, as opposed to the common law concept of legal relevance (Papakosmas?).

In the scheme of the Acts, relevance is the starting point in determining admissibilty. This is by virtue of s56, which directs that evidence which is relevant is admissible, and evidence which is not relevant is inadmissible.

Relevant is also the starting point in that an articulation of relevance provides guidance as to how the evidence is to be used, and therefore whether other use-based exclusions in the Act, such as hearsay, tendency and coincidence, and credibility, apply.

Hearsay

Hearsay comes into play when an out of court representation, in the form of a document, or an oral representation made outside the courtroom, is sought to be used to prove the truth of its contents. The classic example comes from Lee v The Queen where Lee was alleged to have said to a friend “I’ve just done a job”, which the prosecution wished to use to prove his involvement in a “job” committed at around that time.

The official definition of hearsay is found in s59, which defines hearsay as “evidence of a previous representation made by a person used to prove the existence of a fact reasonably supposed the person intended to assert by the representation. Section 59 makes such evidence inadmissible.

There are a number of exceptions to the hearsay rule which a discussed below, however, it should be noted that even where such exceptions apply, s165 will require the judge to direct a jury that the evidence is of a kind which may be unreliable, and urge caution in respect of the evidence.

Exceptions

Dual relevance

In a marked change from the common law, s60 allows the use of hearsay material, for a hearsay purpose, where it is relevant and admissible for another purpose.

First hand hearsay exceptions

Four exceptions exist in respect of first hand hearsay. First had hearsay is defined in sXX as being evidence of a previous representation given by a person who saw, heard or otherwise perceived the representation being made.

They impose different preconditions on admissibility, depending on the type of proceedings, and whether the maker of the representation is available to give evidence (including notions of competence and compellability discussed earlier).

Availability

A person will be unavailable, according to the definition in the Dictionary (cl 4, Pt 2) where:

(a) the person is dead;

(b) the person is not competent to give evidence;

(c) the person is mentally or physically unable to give evidence;

(d) it would be unlawful for the person to give evidence;

(e) the Act prohibits the evidence being given;

(f) all reasonable steps have been taken to find the person or secure their attendance, without success; or

(g) all reasonable steps have been taken to compel the person to give evidence, but without success.

Civil proceedings, maker not available

This is perhaps the most liberal exception. Section 63 simply provides that the hearsay rule does not apply where evidence is given of the representation, by a person who saw, heard or otherwise perceived it; or through a document containing the representation.

s67 also imposes a reasonable notice requirement (discussed below).

Civil proceedings, maker available

The exception in s64 allows first hand hearsay of the representation, where it would cause undue expense or undue delay, or would not be reasonably practical to call the person who made the representation to give evidence: s64(2).

s67 imposes a reasonable notice requirement (discussed below).

Criminal proceedings, maker not available

s65 imposes additional requirements to those found in the civil proceedings exceptions. In particular, the exception does not apply unless the representation:

(a) was made under a duty to make that representation or to make representations of that kind; or

(b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation was a fabrication; or

(c) was made in circumstances that make it highly probable that the representation is reliable; or

(d) was made against the interests of the person at the time it was made and made in circumstances that make it likley the representation is reliable.

Additionally, s65(3) excepts where the defendant cross-examined the person who made the representation about it, or had a reasonable opportunity to do so.

s67 imposes a reasonable notice requirement (discussed below).

Criminal proceedings, maker available

s66(2) provides that where the person who made a previous representation has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation given by (a) that person; or (b) a person who saw, heard or otherwise perceived the representation, so long as when the representation was made, the occurrence of the fact asserted was “fresh in the memory” of the maker.

s66(2A) sets out the factors relevant to determining whether a matter was “fresh in the memory”, and includes:

(a) the nature of the event concerned;

(b) the age and health of the person; and

(c) the period of time between the occurrence of the asserted fact and the making of the representation.

66(2A) was inserted in response to the High Court decision in Graham.

Notice requirements

s67 imposes a notice requirement in respect of ss63,64, and 65. The notice must be reasonable, which goes to the timing and content of the notice. See for example Puchalski, where it was held that the notice given 5 minutes before a hearing would not be reasonable.

However, where there has been a failure to comply with the notice requirement, the court may give leave to admit the evidence anyway: s67(4). In determining whether to grant leave, s192(2) matters must be taken into account: Stanoevski. In particular, prejudice, expense and delay are likely to be relevant: Tsang Chi Ming.

s68 gives an opportunity to the party notified to object within 21 days.

Business records exception

Under s68, a representation contained in a document will be admissible if it forms part of the records of a business. It was said in Lewis v Nortex that the scope of this inclusory definition was of wide import and to be construed accordingly.

Business is defined in the Dictionary but record is not (see above section on Summaries).

It is a requirement that the information contained in the business record be sourced to a person with personal knowledge of the facts asserted: s68(2). However, there is no need to identify the person with such knowledge.

The s68(1) exclusion will not apply where the record was made in contemplation of civil proceedings, or as part of a criminal investigation: s68(3).

Business records

See section above on what constitutes a business record. Where a business record, s69 exempts from the hearsay rule.

Opinion

Evidence of an opinion is not admissible: s76.

Lay opinion

Admissible where tied up in the perception of the event, or where the person becomes an ad hoc expert.

Expert opinion

Expert opinion will be admissible by virtue of s79 where the opinion is wholly or substantially based on that person’s specialised knowledge. Specialised knowledge must be established by reference to the expert’s qualifications, training and/or experience.

In some instances, expert evidence may be thought to stray beyond the realm of expert knowledge. Where this occurs there is a real risk of unfair prejudice, in that the expert’s status may lend an undeserving air of authority to their non-expert opinion, encouraging the tribunal of fact to divert their attention from the need to properly scrutinise the evidence and come to their own conclusion. (This may bring to mind the discretionary exlusions in ss135 & 137, discussed below).

Thus there is a need to police the boundaries of expert evidence carefully. There are procedural preconditions to the admission of expert evidence contained in the Uniform Civil Procedure Rules (see Schedule 7), being the Expert Code of Conduct, which are designed to make transparent the process of reasoning from facts to conclusion: see HG v R per Gleeson CJ.

An unresolved issue arises as to how to deal with expert opinion based on unreliable evidence. In HG, the evidence of an expert based on secondary evidence as to the credibility of witnesses, … was rejected by the High Court as not being “wholly or substantially based” on the expert’s specialised knowledge and therefore inadmissible. This followed the reasoning of Heydon J when on the bench of the Court of Appeal of the Supreme Court of NSW in Makita v Sprowles requiring that evidence be “intelligent, convincing and tested” before it be admissible. However, in Dasreef v Hawchar, the High Court appear to have taken the view that the reliability of the foundation for expert opinion was a matter that went to weight rather than admissibility.

Admissions

An admission is defined as being contrary to the maker’s interest in the outcome of proceeedings.

s81 provides an exception to the hearsay rule for first hand hearsay evidence of admissions.

s84 excludes th exclusion where the defence raise an issue the issue that the admission may have been influenced by violence. There must be “some evidence” or “real question” of violence: GH. It then falls to the prosecution to prove, on the balance of probabilities that the admission was not so influenced.

Where admissions are made by an employee or agent of a company, the issue of whether the admissions bind the company arises. The issue is not resolved according to the approach adopted in other areas of law: Wade v MNC. It is only necessary to demonstrate that:

  • at the time the representation was made (Kirk v Ampol)
  • the admission related to a matter within the scope of employment 87(1)(b)

Silence as an admission?

s89(1) prohibits an inference unfavourable to an accused being drawn from a refusal to answer questions. It includes total as well as selective silence: King, and applies whether or not a caution is given. It is incumbent on a jury to direct the jury as such when the evidence is adduced (Reeves).

However, s89 does not prevent using evidence of silence for another purpose, such as to show that the defendant was given an opportunity to respoond to allegations (Graham, unrep, 1997) or to show that inconsistent accounts were given (Merlino).

Powers to exclude admissions

A number of statutory provisions provide possible mechanisms by which to exclude admissions

s281 Criminal Procedure Act – unrecorded admissions

This section applies to admissions made:

  • when D was or ought to have been suspected of committing an offence;
  • during the course of official questioning; and
  • relating to an indictable offence (including Table 2 offences, but not Table 1)

Where such admissions are not “tape recorded”, they are by virtue of the section not admissible unless the prosecution adduce a reasonable explanation as to why the admission was not recorded, and further, there is a subsequent recorded interview in which the accused adopted the admissions.

A reasonable explanation includes that the suspect refused to give a recorded interview: Nicholls and Coates.

s138 – improperly obtained admissions

Section 138 might be used to exclude improperly obtained admissions. There is an overlap between ss138 and s90: see Sophear Em v The Queen (discussed below). This discretionary exclusion also overlaps with s90.

Typically used in circumstances of misrepresentation, tricker or incorrect assumptions.

(See recent Blow J case in Burnie for an example of the application of s138 to improperly obtained admissions).

s90 – unfair admissions

Discretion to exclude admissions where:

(a) adduced by P; and (b) in the circumstances of the admision, unfair to D to use.

Not that the common law decision of Swaffield may provide guidance as to what amounts to unfairness, and points to issues such as voluntariness, reliability, and the overall circumstances

s84 – influenced by violence

Where D raises the issue (and there needs to be some evidence to support) of whether the admission was obtained by violence, then s84 requires the P to prove on the balance of probabilities that the admission was not so influenced before it is admissible.

Evidence of judgments

s91 prevents the tender of judgments to prove some fact that was in issue in those proceedings, although they may be admissible for other purposes, such as to show that they would have persuaded any honest-minded person that the defendant’s allegations were false, or, to establish the terms of a judgment and its effect.

There are a number of limited exceptions to s91 in s92, covering such mateers as the use of judgment to prove a gramt of probate, and as evidence of a party’s conviction of a criminal offence, in civil proceedings.

Tendency and coincidence evidence

Tendency evidence

s97 holds that tendency evidence is not admissible unless to conditions are met:

(a) reasonable notice in writing

As to what consititutes reasonable notice, see cl5(2) of the Regulations which sets out exactly what must be included in the notice.

(b) significant probative value

The probative value of tendency evidence turns on the degree of similarity between the tendency act(s) and the charged act. Where the acts are “strikingly similar”, they are likely to satisfy s97: Fletcher.

What constitutes significant probative value is not defined, although the term significant has been characterised as more than mere relevance, but less than substantial probative value. It has also been described as meaning important or of consequence: Lockyer.

Coincidence evidence

Coincidence evidence refers to evidence which is relevant because it is said that given the fact sought to be adduced, and the fact in issue to which it is relevant, it is improbable that the two facts occurred coincidentally. The requirements of s98 mirror s97, in that two conditions need to be satisfied before the evidence is admissible, namely (a) reasonable notice in writing, and (b) that the evidence be of significant probative value. The nature of these conditions is discussed above.

Additional constraint in criminal proceedings

In criminal proceedings, it is also necessary to demonstrate that the probative value of the evidence substantially outweighs its prejudicial effect. The latter terms has the same meaning as “unfair prejudice” in s137, and turns on the real risk of misuse of the evidence by the jury: BD. An example would be that the jury might punish the accused for uncharged tendency acts, by convicting them of the charged offence.

The test is similar to the common law test in Pfennig, such that common law authorities will provide guidance. However, the two tests are not the same and to the extent that they differ, the language of the statute has precedence. in Shamouil, it was held that the reliability of evidence was not relevant to the issue of probative value as the language of the act contemplates the extent to which the evidence could affect the assessment of the existence of a fact in issue. Nonetheless, common law Hoch inquiries continue to be conducted in UEA jurisdictions, which, directed as they are towards the possibility of concoction, are inherently concerned with the reliability of evidence.

On a contrary view to Shamouil, see Vic CCA Dupas which held this approach was manifestly wrong.

Credibility evidence

Credibility evidence is defined in s101A, as evidence relevant only the to credibility of a witness. Section 102, known as the credibility rule, is to the effect that credibility evidence is inadmissible. Section 103 provides the first exception, and applies in cross-examination where where the evidence could substantially affect the credibility of the witness. Section 104 places limitations on s103 where a defendant is to be cross-examined by a prosecutor.

Recent invention

Where a claim is made in XX that evidence has been ‘recently invented’, s108 will allow the party who called the witness to restablish credibility by adducing a prior consistent statement. In order to rely on s108, the leave of the court is required, which will be determined according tothe mandatory considerations in. s192: Stanoevski, and also the effect of the evidence on the credibility of the witness: Graham (unrep, 1996?)

Character

There is no definition of character in the Act, although in Melbourne v The Queen (1999) 198 CLR 1, Kirby J describes it as follows:

Character referes to the aggregate of qualities which distinguish one person from another, or the moral constitution of a person; it embodies the permanent and unchanging pattern of the nature of the individual concerned.

Section 110 provides exceptions to the opinion rule, tendency rule and credibility rules in respect of evidence adduced by a defendant to prove that they are of good character. By virtue of s109, it applies only in criminal proceedings.

Sections 110(2) provides a similar exception for rebuttal evidence the prosecution, but only where such evidence has been adduced by the defendant, and then only in the general or particular respect addressed by the defendant.

An emphatic denial of guilt does not trigger s110(2) or (3), which requires a conscious decision on the part of the accused to adduce character evidence: Gabriel v R (1997) 76 FCR 279.

If the evidence of character is sought to be adduced in cross-examination, s112 requires a grant of leave (noting of course the matters in s192(2) as relevant to whether to grant leave: Stanoevski).

Identification evidence

Sections 114 and 115 put in place a number of conditions which must be satisfied before identification evidence, classified as either visual identification or photographic identification, can be adduced by the prosecution.

Section 114 applies to visual identification evidence. Under this section, evidence of a visual identification will not be admissible unless:

  • an identification parade, including the defendant, was held before the identification was made; or
  • it was not reasonable to have such a parade; or
  • the defendant refused to take part in such a parade.

A further conditions is that there was no intentional influence of the identifier.

Section 115 applies to photographic identification evidence. The structure of the section is such that visual identification is to be preferred if possible. For example, under s115 photographic identification evidence will be inadmissible when the defendant is in custody, and an identification parade was not held, unless it was inappropriate or unreasonable to do so.

Where picture identification is allowed, further controls are placed on the pictures to be used. The evidence will not be admissible if the photographs suggest they are pictures of persons in custody. Also, the photograph of the defendant, if in custody, must not pre-date the defendant being taken into custody, except in limited circumstances (such as where the appearance of the defendant has changed between the time of the offence, and the time they were taken into custody).

Note that even where admissible, identification is a type of unreliable evidence listed in s165, and will require a direction as set out in s165.

Privilege

Client legal privilege

Client legal privilege is a protection against disclosure which attached to confidential communications made, and confidential documents prepared for the purposes of (a) legal advice (s118); or (b) providing legal services for the purposes of litigation (s119).

Client legal privilege in the Evidence Acts expanded the common law notion of the privilege, which at the time had adopted the sole purpose test: Grant v Downs. s120 of the Act also extends the privilege to unrepresented litigants. To the extent of any inconsistency, the terms of the Evidence Act prevail. In Mann v Carnell, it was held that the terms of the Evidence Act only applied to the adducing of evidence, and did not have the effect of modifying the common law in respect of pre-trial procedures, such as discovery. In NSW, harmony between pre-trial procedures and the adducing of evidence has been achieved via the Unform Civil Procedure Rules, which defines “privileged information” by reference to the Evidence Act definitions. The difference remains unaddressed in the Commonwealth jurisdictions.

In order for either of the privileges in s118 or s119 to protect against admissibility, it is necessary to show the following:

  • obligation of confidentiality: NSW v Jackson
  • privileged purpose for creating the document was the dominant purpose: Esso v Federal Commissioner for Taxation

Further, in respect of s118, it is necessary to demonstrate that the purpose of the communication or document was the provision of legal advice. The term legal advice will be construed broadly: WorkCover v Law Society of NSW.

In respect of the provision of legal services, it is to be noted that this this includes advice and representation. The mere apprehension of litigation will not be sufficient.

Exceptions

Sections 121-126 set out various exceptions to client legal privilege:

  • s121 – for reasons connected to the administration of justice
  • s122 – waiver (see for example Mann v Carnell)
  • s123 – where adduced by a defendant in criminal proceedings
  • s124 – joint clients
  • s125 – misconduct
  • s126 – related communications

Sexual Assault Communications Privilege

The SACP is governed by the Criminal Procedure Act (Division 2 of Part 5 of Chapter 6). s126H of the Evidence Act extends the application of the provisions to civil proceedings.

For a particularly acerbic criticism of the CPA provisions relating to the privilege, see R v Markarian [2012] NSWDC 197 per Berman DCJ (wherein his Honour described the legislation as “bad policy, badly implemented”: at [5]).

The starting point is to determine whether the material in issue falls within the definition of a “protected confidence”, as defined in s296, namely a counselling a communication that is made by, to or about a victim or alleged victim of a sexual assault offence. A “counselling communication” is defined as a communication made in confidence by a person to a counsellor, suitably trained, in relation to harm suffered by that person. (The definition goes on, like so many Russian dolls). Practical procedural limitations are set out in s299B.

Having determined that a protected confidence exists, s298 provides a prohibition on compelling production of such a document, including by subpoena, in a criminal proceeding, unless the court gives leave. s299D sets out the requirements which must be satisfied before leave is given, namely:

  • the document will have substantial probative value
  • that other evidence of the communication is not available
  • the public interest in protecting the confider from harm is substantially outweighed by the public interest in admitting the material into evidence.

s299D(2) also sets out factors relevant to whether leave ought be granted, inter alia:

  • the need to encourage victims to seek counselling
  • that the effectiveness of counselling depends on confidence
  • the public interest in ensuring that victims receive counselling
  • the disclosure of protected confidence is likely to undermine the counselling relationship.

s299C sets out various notice requirements.

Exceptions are provided. s301 excludes evidence of protected confidences adduced by consent; and s302 excludes documents produced in the furtherance of a fraud, or the commission of an act giving rise to a civil penalty.

Privilege against self-incrimination

s128 provides a procedure by which an witness may …

The witness must first object to answering the question. There are no blanket objections, each question must be objected to. However, if it appears to the court that such an issue might arise, then by virtue of s132, the court is to satisfy itself that the witness understands the effect of s128, and their right to object.

Once an objection is made to made to answering, the court must determine whether there are reasonable grounds for the objection: s128(2). Once so satisfied, the court is to explain to the witness that there is no need to give the evidence unless directed to do so under subs(4), but that if the witness chooses to give evidence, a certificate will be issued: 128(3).

Once the certificate is issued, it will protect the witness in all subsequent proceedings. However, in Crosswell v R it was held that a retrial is not a “proceeding”, and therefore the protections ordinarily afforded by s128 do not apply.

Settlement negotiation privilege

This privilege in s131 is designed to uphold the public interest in settling litigation. As such, it protects communications made and documents prepared in connection with attempts to settle a dispute.

Typically, such documents are marked “without privilege”. However, there is no magic in this phrase, and it is neither necessary (Rogers v Rogers), nor determinative (Seven v News Ltd).

A number of exceptions limit the operation of the privilege:

  • consent
  • aspects of settlement in issue
  • to prevent misleading court
  • relevant to costs
  • affects rights

Judicial notice

Matters of law

s143 permits the court to take judicial notice of certain matters of law without the need for formal proof.

Matters of common knowledge

s144 permits judicial notice of matters of common knowledge, or matters capable of verification in an authoritiative document, where “not reasonably open to question”.

Note s144 procedural requirements.

Matters of foreign law

Note that s80 changes the common law position as to the ultimate issue rule. That is, expert opinion as to the state of foreign law, and its application to the facts in issue would not, as a result of s80, be inadmissible. However, where such evidence is sought to be adduced from an expert, it might well fall within the realm of the mandatory and discretionary exclusions in ss135 and 137, on the basis that such evidence is minimally probative (the issue ultimately being one for the tribunal of fact) and also one which is unfairly prejudicial since it encourages the tribunal of fact to defer to the “expertise” of the witness. Determining the applicable law, including foreign law, is a matter for the judge: s176. As such, case law has held that such evidence will require particular scruting: R v GK.

In any event, the adducing of expert evidence as to the state of foreign law is not the procedure envisaged by the drafters of the Evidence Acts. ss174-175 sets out the proper procedure.

s174 sets out the ways by which “written” foreign law can be adduced in documentary form, namely via an official copy produced by the government printer, or other source which appears to be reliable.

s175 covers the procedure for “unwritten” foreign law, such as the common law.