Section 13 Competence – lack of capacity

The reliability of answers which a witness might give is different to the capacity of that witness to understand, and appropriately respond to, questions he or she might be asked: Gray v The Queen [2020] NSWCCA 240 at [35](vi), [88]–[98]. A witness may be better able to understand a simple question than one involving complex concepts. However, the issue is purely in respect of capacity, not whether a witness has the capacity to understand a particular question that may have been framed in a particular way. The proper consideration of these issues may involve consideration on a fact by fact basis, but not on a question by question approach. It is erroneous to presume incapacity merely because of the age of the witness.

Section 18 Compellability of spouses and others in criminal proceedings generally

In R v A1 (No 2) (2019) 278 A Crim R 513; [2019] NSWSC 663, Johnson J of the NSW Supreme Court held at [81] that an objection could be maintained and upheld in respect of evidence “on a particular topic”. Johnson J stated at [79]:

There is nothing in the extrinsic material bearing upon s 18 which supports an all-or-nothing approach to the issues. I do not think that the language of s 18(2)(b) is such that it ought be concluded that the subject matter of that provision is the only severable category of evidence which is open to the Court in determining a s 18 objection.

It is suggested that this analysis should not be accepted. There is “extrinsic material bearing upon s 18” which does support “an all-or-nothing approach to the issues”, apart from the evidence referred to in s 18(2)(b). Thus, in ALRC 26, it was stated at para 538:

... consistently with a recent English authority, it is proposed that the witness must object to giving any evidence. Justice should not allow the witness to give evidence which might assist, or injure, the spouse defendant and then avoid further questioning, including cross-examination. [emphasis not in original]

A footnote referred to an English judgment and then stated: “In this the proposal differs from the Victorian and South Australian law which allows exemption as to part of the evidence”. A discrete “compellability discretion” was proposed for “spousal communications” (ALRC 26 at para 898). ALRC 38 maintained these proposals. Accordingly, there is extrinsic material supporting the construction of the words “may object to being required … to give evidence” as only permitting an objection to giving “any” evidence rather than evidence on a particular topic or topics.

Section 44 Previous representations of other persons

Evidence of a representation may have been admitted for the purposes of s 44(2)(a) even if the content of the question asked in cross-examination is not “identical to that evidence but it is very similar and consistent with that evidence”: Antouny v The Queen [2020] NSWCCA 203 at [82].

Section 46 Leave to recall witnesses

It was held by the Victorian Court of Appeal that there is no need to give a witness an opportunity to respond to a challenge to the witness’s evidence where it is simply to be contended that another witness’s account should be preferred: Tiba v The Queen [2020] VSCA 204 at [82], [86]. It is not entirely apparent why that should be so. It certainly seems unfair to the first witness to submit that, in essence, the witness is wrong, without having given the witness an opportunity to respond to the suggestion.

Section 55 Relevant evidence

Evidence that a criminal defendant had been acquitted by a jury of related charges in a prior trial is not relevant evidence where it could not be known whether, or to what extent, the jury in the first trial’s assessment of the complainant’s reliability and credibility impacted on its decision to acquit: Meyer v The Queen (No 2) [2020] VSCA 206 at [39]–[41]. However, the Court of Appeal pointed out at [43] that the evidence given at the first trial in relation to the charges resulting in acquittal may be relevant in the second trial and, where such evidence is admitted, the judge may (depending upon the way in which the trial is conducted) have to tell the jury that the defendant was acquitted of charges in relation to those incidents.

Section 59 The “hearsay rule” – exclusion of hearsay evidence

• In Tiba v The Queen [2020] VSCA 204, the Victorian Court of Appeal appears to have accepted at [67] that evidence from a police officer of the precise words said by an identifying witness when identifying a photograph of the defendant is not caught by the hearsay rule when that identifying witness has also given evidence about what he said at the time.
• An example of an implied representation caught by the rule is found in Higgins v The Queen [2020] NSWCCA 149. Evidence was led that a priest had said to parents of a boy that the complainant “fell over and hurt [his] backside”. The NSW Court of Criminal Appeal accepted that this was hearsay evidence because the prosecution alleged that what the priest said was a lie and adduced the evidence to prove the “implied representation that [the priest] had witnessed the sexual assault the subject of count 4 and intended to cover it up” (at [23]). The court held that it was not admissible as an admission by the appellant.

Section 65 Exception – criminal proceedings if maker not available

A representation does not cease to be against the interests of the person who made it at the time it was made simply because it was also against the interests of a co-offender: Vitale v The Queen [2020] VSCA 237 at [83]. This was a case where the accomplice made a statement to police implicating both himself and the appellant. The Victorian Court of Appeal held at [83]–[88] that there were a number of factors supporting the finding of reliability in respect of particular representations, including the circumstances leading up to the making of the representations, the accomplice’s awareness of the objective evidence available to the police to check the accuracy of his account, the fact that the accomplice and the appellant were brothers and the fact that the statement was sworn (and subject to possible prosecution for perjury).

Section 66 Exception – criminal proceedings if maker available

In Tiba v The Queen [2020] VSCA 204, the Victorian Court of Appeal observed at [71]–[72] that a photographic identification made by a witness four weeks after an incident that “was of such a nature that the details of the persons involved in it were likely to have been clearly imprinted on his recollection” and there “was no suggestion in the evidence that [the witness] suffered any health or other issue which might have impaired his capacity to recollect those matters” meant that it was “unarguable that at the time at which [the identification was made] his recollection of the facial features and appearance of the person, who he identified, was fresh in his memory for the purposes of” this provision.

Section 90 Discretion to exclude admissions

In Director of Public Prosecutions (Vic) v Hou [2020] VSCA 190, the Victorian Court of Appeal held at [127] that employees of a casino appointed under the Casino Control Act 1991 (Vic) were “investigating officials”. It was held that a trial judge had not erred in excluding admissions made to the police after the two respondents had been interviewed by the casino employees. It was stated at [148]:

“The unfairness was palpable. On his Honour’s unchallenged findings, both respondents believed they were likely to be imprisoned unless they cooperated with police. Because of the pressure applied to them by the casino’s officials, his Honour found, they did not believe they had a right to silence when questioned by police, notwithstanding the administration of the required caution”.

Section 97 The tendency rule

An issue arises where the party adducing the evidence contends that conduct relied upon by that party to show a particular tendency relies upon an inference from the conduct to establish the tendency. For example, in WG v The Queen [2020] NSWCCA 155, the prosecution tendered photographs of children of the accused taken by a professional photographer on behalf of the accused which the prosecution suggested showed that the accused had a sexual interest in the children, while the defence contended that such an inference should not be drawn. The NSW Court of Criminal Appeal held that it was not relevant “that there is or might be another (innocent) interpretation of the photographs, or that [the accused’s] state of mind in commissioning the photographs was purely maternal” (Fullerton J at [1172], Bathurst CJ agreeing at [1104], Fagan J agreeing at [1589]). It was held that it was not for the trial judge to undertake an assessment of the “actual probative value of the evidence at the point of admissibility, even less so whether the evidence actually showed the tendency contended for by the Crown”, emphasising that “it was open to the jury to regard [the accused’s] conduct in commissioning photographs of a sexualised nature as capable of showing a tendency to have a sexual interest in her children” (Fullerton J at [1172], [1177], Bathurst CJ agreeing at [1104], Fagan J agreeing at [1589]). The question whether a court assessing the probative value of circumstantial evidence for the purposes of s 137 is required to assume that the inference(s) sought to be drawn by the party adducing the evidence will be drawn is discussed at [EA.137.90]. That discussion would have application here. The position in NSW appears to be settled but it has not been determined in other UEL jurisdictions.

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

The proper approach to the Bench Book suggested directions was discussed at length in BRC v The Queen [2020] NSWCCA 176 at [31]–[38], [49]–[51], [71]–[75], [84]–[85], [94]–[101].

Section 125 Loss of client legal privilege – misconduct

In AMV Australia Pty Ltd v Premier Compensation Lawyers Pty Ltd [2020] NSWSC 446, Davies J at [45]–[50], applying s 131(2)(j), followed the view expressed by Santow J in Kang v Kwan [2001] NSWSC 698 that “fraud is used in a sense that connotes dishonesty” but gave a broad meaning to the concept of “dishonesty”, extending it to “an intention to hinder, delay or defeat creditors” (based on the judgment of the High Court in Marcolongo v Chen (2011) 242 CLR 546; 274 ALR 634; [2011] HCA 3 at [32]). Davies J at [41] followed authority that “a concealment of a fraud can be in furtherance of the fraud” for the purposes of s 131(2)(j). It was held at [43] that the disclosure of a “fraud” only in “without prejudice” correspondence “must be an attempt at concealment of that fraud”.

Section 128A Privilege in respect of self-incrimination – exception for certain orders etc.

The background to the provision was discussed in detail by the Full Court of the Federal Court in Deputy Commissioner of Taxation v Shi [2020] FCAFC 100, particularly Lee J at [57]–[68]. Lee J observed at [65]–[68] that the “interests of justice” requirement in s 128A(6)(c) was not recommended in ALRC 102 but rather in a subsequent report by the Victorian Law Reform Commission. Lee J engaged in a detailed consideration of the provision (at [71]–[86]), observing that the provision “largely reflects s 128” but emphasising that, while “s 128 relates to evidence which has yet to be given”, this provision “relates to evidence which, although identified in writing in a testamentary document, is not directed to the adduction of relevant evidence at a hearing to determine the facts in issue in the proceeding” (at [71]). Lee J (Stewart J agreeing) stated at [77]:

[I]f one comes to the interests of justice assessment, it has been remarked in the context of s 128(4)(b) that the concept is necessarily broad (see Cureton v Blackshaw Services Pty Ltd [2002] NSWCA 187 (at [37] per Sheller JA, with whom Meagher and Beazley JJA agreed). But it would be a mistake to apply authorities in relation to s 128(4)(b) acontextually: here the context is not directed to the possible adduction of evidence relevant to a fact in issue, but rather whether information should be disclosed … .

Lee J added at [97]:

Consideration of what the interests of justice require in the context of a privileged affidavit provided under s 128A could arise at different stages of the litigation. It may be considered shortly after commencement, as access to the material might be sought to obtain information which might be thought important to the ultimate determination of the controversy, or the information may be required because it will obviate the need for extensive discovery or compulsory process. But, as the present case illustrates, the determination of what the interests of justice require may be made after there are no facts in issue to be determined and the rights of the parties have merged in a judgment. In the former case, the context is similar to that which arises under s 128; but in the latter case, it is not.

With respect to “the consequences of requiring disclosure”, Lee J emphasised at [95] (see also at [111]) that “[r]equire is a strong word and although ‘interests of justice’ is a broad concept, it is not enough, for example, in the s 128 context, that the evidence in question be relevant – a ‘relatively high standard of satisfaction’ is required given that the legislation abrogates a basic common law right significantly: Gedeon (at 324 [286])”. The reference to “Gedeon” is to Gedeon v The Queen (2013) 237 A Crim R 326; [2013] NSWCCA 257 where Bathurst CJ (at [286], with whom Beazley P, Hoeben CJ at CL, Blanch and Price JJ agreed) observed that the same language in s 128(4)(b) indicates that it “is not enough that the evidence be relevant” and “the relatively high standard of satisfaction is consistent with the fact that the legislation to a significant extent abrogates a basic common law right”. Lee J (Stewart J agreeing) concluded that, in the circumstances of the case, the interests of justice did not require the information to be disclosed.

It may be noted that s 128A(6) provides that the court “may make an order requiring the whole or any part of the privilege affidavit containing information of the kind referred to in paragraph (a) to be filed and served on the parties” (emphasis added). As Lee J (Stewart J agreeing) noted at [86]:

The word “may” suggests that the court can make a disclosure order “at the discretion of the … court” (see s 33(2A) of the Acts Interpretation Act 1901 (Cth)). Although, having said this, it is a little difficult to conceive of circumstances in which a court would decline to make a disclosure order if it had already reached the conclusion “the interests of justice require the information to be disclosed” (s 128A(6)(c)).

Section 131 Exclusion of evidence of settlement negotiations

In AMV Australia Pty Ltd v Premier Compensation Lawyers Pty Ltd [2020] NSWSC 446, Davies J at [45]–[50] followed authority in respect of s 125 regarding the meaning of “fraud”. Davies J, at [41], also followed authority in respect of s 125 that “a concealment of a fraud can be in furtherance of the fraud”, holding at [43] that the disclosure of a “fraud” only in “without prejudice” correspondence “must be an attempt at concealment of that fraud”.

Section 164 Corroboration requirements abolished

In Higgins v The Queen [2020] NSWCCA 149, the NSW Court of Criminal Appeal held that a trial judge sitting without a jury had, in the judgment finding the appellant guilty, used the term “corroboration” in its technical sense (as explained in Doney v The Queen (1990) 171 CLR 207; 50 A Crim R 157; [1990] HCA 51) when holding: “I find that the complainant’s evidence is corroborated in a number of respects”. It was emphasised at [57] that the trial judge “was using a term with a clear legal meaning” and this made it unlikely it was being used “in a colloquial sense”. Since none of the individual pieces of evidence identified by the trial judge were corroborative in the legal sense, the appeal was allowed.

Dictionary “investigating official”

Paragraph (b) of the definition of “investigating official” refers to “a person appointed by or under an Australian law (other than a person who is engaged in covert investigations under the orders of a superior) whose functions include functions in respect of the prevention or investigation of offences”. The term “Australian law” is defined in the Dictionary to mean “a law of the Commonwealth, a State or Territory”. In Director of Public Prosecutions (Vic) v Hou [2020] VSCA 190, the Victorian Court of Appeal held at [127] that employees of a casino appointed under the Casino Control Act 1991 (Vic) were “investigating officials”. It was observed at [118]:

This was, plainly enough, a question of fact. It was necessary to identify, and then to characterise, the functions and duties which the relevant officers were engaged to perform. The factual inquiry required a consideration, first, of the statutory provisions under which the officers were appointed and, second, of what the evidence showed about the practical content of their functions and duties.

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