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July 2015

• Section 13 Competence: lack of capacity
• Section 23 Choice of oath or affirmation
• Section 46 Leave to recall witnesses
• Section 56 Relevant evidence to be admissible
• Section 66 Exception: criminal proceedings if maker available
• Section 76 The opinion rule
• Section 79 Exception: opinions based on specialised knowledge
• Section 98 The coincidence rule
• Section 101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution
• Section 122 Loss of client legal privilege: consent and related matters
• Section 138 Discretion to exclude improperly or illegally obtained evidence
• Section 140 Civil proceedings: standard of proof
• Section 141 Criminal proceedings: standard of proof
• Section 165 Unreliable evidence
• Section 165B Delay in prosecution

Updated 17 June 2015

Section 13 Competence: lack of capacity

Section 13(3) provides that “[a] person who is competent to give evidence about a fact is not competent to give sworn evidence about the fact if the person does not have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence”. It is important to note that the court must be satisfied that the witness “does not have” the relevant capacity. It is not sufficient to overcome the presumptions in s 12 and s 13(6) that the court is not satisfied that the witness does have that capacity: GW v The Queen [2015] ACTCA 15 at [67]–[85]. Only if satisfied on the balance of probabilities that the witness does not have the relevant capacity will the witness not be competent to give sworn evidence about the fact.

Section 23 Choice of oath or affirmation

It must not be suggested that evidence by way of affirmation is inferior to evidence on oath: Werden v The Queen [2015] VSCA 72 at [37]. Moreover, different religious beliefs concerning the making of oaths must be respected: Werden v The Queen [2015] VSCA 72 at [37].  However, that would not preclude cross-examination of a witness who professes religious beliefs regarding why, given his beliefs, he had not given evidence on oath: Werden v The Queen [2015] VSCA 72, Osborn JA (Ashley JA agreeing) at [37]. See also Priest JA at [126]–[129].

Section 46 Leave to recall witnesses

One aspect of the rule in Browne v Dunn (1893) 6 R 67 is that, in the absence of a challenge by a party to evidence given by a witness, the court is entitled to treat the party as taking no issue with the accuracy of the witness’s account (thereby adopting it): Chong v CC Containers Pty Ltd [2015] VSCA 137 at [201]–[204].

Section 56 Relevant evidence to be admissible

Where the credibility of a prosecution witness, W, is in issue, and W is corroborated in some respect by the previous representation by D1, that credibility enhancement of W (which logically might support the general credibility of W, including with respect to evidence given by W against D2) may not be taken into account when assessing the prosecution case against D2: Destanovic v The Queen [2015] VSCA 113, Weinberg and Beach JJA at [102].

Section 66 Exception: criminal proceedings if maker available

In Pate v The Queen [2015] VSCA 110, the Victorian Court of Appeal held that a trial judge had erred in holding that the test was satisfied where the “complaint” was made 12 years after the alleged offences (although the appeal did not succeed on this basis because trial counsel did not object to the admission of the evidence). Weinberg JA observed at [65]:

There is no single bright line figure beyond which a representation made long after an event cannot be "fresh in the memory". Plainly, however, the greater the period that has passed, the greater the need for there to be some reason why the event would be "fresh" in the memory. LMD provides a useful example of the kind of evidence that might be sufficient to overcome the time barrier in the notion of something being fresh. There was no evidence of that kind in Clay, and in my view, there was equally no evidence of that kind in the present case.

Priest JA agreed (at [136]), but went somewhat further. He doubted the correctness of both R v XY (2010) 79 NSWLR 629; [2010] NSWCCA 181 and LMD v The Queen [2012] VSCA 164 (at [141]). He added at [146]:

[G]iven that determination of "freshness" of memory is not confined simply to temporal proximity, when assessing whether an asserted fact is "fresh in the memory", consideration might also be given to whether the particular memory can be said to be free of factors which potentially might taint or influence it (such as – to use a non-exhaustive example – psychological counselling or therapy).

The third member of the Court, Dixon AJA, agreed at [150] with the “reasons” of both Weinberg and Priest JJA.

Section 76 The opinion rule

A medical diagnosis based upon objective evidence such as an x-ray “may more closely resemble a statement of fact” while one “based upon conclusions drawn from a range of symptoms (as to which conclusions medical practitioners may differ) … is more likely to be seen as the expression of opinion”: Duncan v The Queen [2015] NSWCCA 84 at [46].

Section 79 Exception: opinions based on specialised knowledge

• The question arises whether an opinion is “substantially based” on specialised knowledge if the expert lacks impartiality and/or independence. The Canadian Supreme Court held in White Burgess Langille Inman v Abbott and Haliburton Co 2015 SCC 23 that an expert opinion evidence would not be admissible where the expert is “unable or unwilling to carry out his or her primary duty to the court to provide fair, non-partisan and objective assistance” (at [50], [53]). The Court observed at [48]–[49] that, where a real issue is raised about this, the burden rests on the party adducing the evidence to establish on the balance of probabilities that the expert “is able and willing to carry out his or her primary duty to the court”. While this approach was not based on any statutory framework, and the analysis is not expressed in terms that are analogous to s 79, it might be possible to reason in respect of s 79 that an opinion expressed by such an expert would not be “substantially based” on the expert’s specialised knowledge. If the expert was unable or unwilling to provide fair, non-partisan and objective assistance to the court, the court could not be satisfied that any opinion expressed by the expert was substantially based on the expert’s specialized knowledge rather than simply motivated by some subjective interest or purpose.
• In Verryt v Schoupp [2015] NSWCA 128, the NSW Court of Appeal held that a psychiatrist’s opinion “as to how she thought an ordinary boy of 12 was likely to have acted and thought in the circumstances in which the respondent found himself” was an opinion “with respect to matters of ordinary human experience” which was “not shown to be based on any specialised knowledge of a 12 year old child’s ordinary behaviour in circumstances such as those confronting the respondent” and thus did not satisfy the requirements of this provision (Meagher JA at [51]–[59]).

Section 98 The coincidence rule

In Harris v The Queen [2015] VSCA 112, the Victorian Court of Appeal held that, in a case where the significant probative value was said to derive from the unlikelihood of two complainants independently making similar allegations against the defendant, the test was not satisfied. The Court concluded as follows at [25]:

Taken together, [the] dissimilarities necessarily diminish the strength of the proposition that it is improbable that the two complainants would allege that the events occurred as a matter of coincidence. While we accept that, nevertheless, it is improbable that the two complainants, as a matter of coincidence, would separately give accounts of the offending against them in the manner in which they have, containing the similarities that we have described, the degree of that improbability is necessarily undermined by the differences between the two sets of offending alleged by each complainant. In those circumstances, while we consider that the coincidence evidence, sought to be admitted, would be of probative value, we do not consider that it has such cogency that it would have significant probative value, either by itself, or having regard to the other evidence to be adduced by the prosecution.

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

The Victorian Court of Appeal observed in Harris v The Queen [2015] VSCA 112 at [28]–[30], where the required directions to the jury would be “quite complicated and potentially confusing”, the prejudicial effect of the evidence might not be outweighed by the probative value of the evidence.

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

• There is no doubt that a party may waive legal professional privilege by the mere institution of proceedings. In Vic Hotel Pty Ltd v DC Payments Australasia Pty Ltd [2015] VSCA 101, the Victorian Court of Appeal held that there had been waiver where the privilege holder, by its conduct in its pleading of the state of mind of a defendant, acted in a way that was inconsistent with its objection to that defendant adducing evidence that would result in disclosure of its knowledge of the privileged legal advice (which was relevant to that state of mind). While merely putting a state of mind in issue will not, of itself, give rise to waiver of privilege in respect of legal advice that is relevant to the existence of that state of mind, in this case the state of mind that was put in issue concerned an understanding of legal rights.
• In R v Seller [2015] NSWCCA 76, the NSW Court of Criminal Appeal rejected an argument that maintenance of the privilege by prosecuting authorities in respect of a number of “in-house” documents was inconsistent with the prosecution contention in criminal proceedings that the distribution of certain compulsorily acquired material did not give any forensic advantage to the prosecution which deprived the respondents of a trial according to law. It was held at [168] that there was no waiver where the prosecution asserted that the compulsorily acquired material was not received, directly or indirectly, by the prosecution team and the respondents sought access to the documents to investigate that possibility. In substance, the party asserting waiver had raised the issue about receipt of compulsorily acquired material and could not rely on the denial of such receipt as constituting waiver.

Section 138 Discretion to exclude improperly or illegally obtained evidence

• Asking a leading question of a child in an interview which will become part of the child’s evidence in chief may be “improper”: Martin v Director of Public Prosecutions [2013] VSCA 377 at [34]; Knowles v The Queen [2015] VSCA 141 at [71]–[72].
• Any unlawful conduct by those empowered to enforce the law represents a threat to the legal structure of society and the integrity of the administration of criminal justice: Pollard v The Queen (1992) 176 CLR 177; 64 A Crim R 393; [1992] HCA 69, Deane J at 202–203; cited in R v Rockford [2015] SASCFC 51 at [39].

Section 140 Civil proceedings: standard of proof

It is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found. This is the case even in respect of “grave allegations” (such as fraudulent or criminal conduct): Chong v CC Containers Pty Ltd [2015] VSCA 137 at [41]–[54].

Section 141 Criminal proceedings: standard of proof

In Ewen v The Queen [2015] NSWCCA 117, Simpson J observed at [99]:

[T]here is no difference in substance between a statement that, in a criminal trial, the Crown must prove (beyond reasonable doubt) every element of the offence charged, and a statement that a person charged with a criminal offence is presumed to be innocent unless and until proved beyond reasonable doubt to be guilty. The “presumption of innocence” that applies in every criminal trial (unless excluded by statute) is not a principle separate and distinct from the onus and standard of proof.

Section 165 Unreliable evidence

In Ewen v The Queen [2015] NSWCCA 117, Basten JA (Davies J agreeing) observed at [25] that s 294AA(3) of the Criminal Procedure Act 1986 (NSW) “expressly recognises that the section will impose constraints on what might otherwise be permitted or required under ss 164 and 165 of the Evidence Act”. Further, Basten JA pointed out at [27], in the context of the common law “warning” that may be required where there is only one witness asserting the commission of a crime that the evidence of that witness “must be scrutinised with great care”, that “there is a fine line, which must be approached with some care, between a warning focusing the minds of the jury on the burden of proof borne by the prosecution, and a ‘suggestion’ that complainants as a class are unreliable”. Basten JA then stated:

[Section 294AA(1)] is directed towards reliance on stereotypical assumptions, which should be contradicted by a firm direction to focus on the evidence and the witness. [Section 294AA(2)] is not directed to the propriety of drawing the attention of the jury to the lack of supporting evidence, but rather focuses on the importance of not warning the jury of ‘the danger’ of convicting on the uncorroborated evidence of the complainant.

Basten JA concluded at [35] that “if the judge may not make any suggestion to a jury that complainants as a class are unreliable, nor should a direction be based on a ‘risk’ of that kind, care must be taken that directions not continue past practices under a neutral guise”. However, Simpson J went considerably further (and both Basten JA and Davies J asserted agreement with her Honour’s reasons). Simpson J stated at [140]–[141] that the common law warning, if given in a case where the “complainant” was “uncorroborated”, would breach s 294AA(2), because “the substance” of the direction is the same. This may be queried – there is a substantive difference between directing a jury that, because there is only one witness asserting the commission of the offence the evidence of that witness must be scrutinised with great care and a direction that there is “danger” in convicting on the uncorroborated evidence of a complainant. The first is little more than an application of the standard of proof (and is not limited to “complainants”). The second focuses on persons who are “complainants”. The first directs careful scrutiny, the latter conveys “danger” in all circumstances, even after careful scrutiny. Nevertheless, this issue may have little practical significance because the Court also held in Ewen that the common law warning is not required where there is “absence of corroboration alone” (Simpson J at [132]).

Section 165B Delay in prosecution

In Pate v The Queen [2015] VSCA 110, the Victorian Court of Appeal held (by majority) that the trial judge failed to give necessary directions for forensic disadvantages “suffered” by the defendant after a 12 year delay. In particular, where the complainant alleged digital penetration when she was 10 or 11 years old, the absence of a medical examination meant that the defence was deprived of the ability to test the truthfulness and reliability of the complainant’s account and, since evidence of a medical examination would have fixed the date of the alleged offence with some certainty, the defendant was deprived of any chance of raising an alibi: Priest JA at [129] (Dixon AJA agreeing at [149]). The direction must “alert the jury to – and to help them understand – the nature and potential consequences of the delay in the circumstances of this case”: Priest JA at [122] (Dixon AJA agreeing at [149]). The Court of Appeal held, by majority (Weinberg JA dissenting) that the directions given by the trial judge were “far too feeble”. Priest JA stated at [126] (Dixon AJA agreeing at [149]) that a direction will not satisfy the legislative requirements of this provision:

[U]nless it brings home to the jury that the accused’s capacity to defend himself has been compromised, and spells out the manner in which the accused's capacity to do so has been so compromised. The judge is then required to instruct the jury to take the manner in which the accused’s case has been compromised into "consideration" or "account". Thus, the jury must be made to understand the reason why the accused’s capacity effectively to defend himself has been compromised, and the effect that may have on the burden and standard of proof. The direction must be emphatic, since it is designed to offer a measure of protection to the accused.

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