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Australian Law Reform Commission Reports |
Notes
The HTML version of this report has been generated from documents using optical recognition software, and may contain errors that do not appear in the original printed version. Some tables and graphs also may not be accurately reproduced.
A PDF version is also available.
This report reflects the law as at 30 June 1984
Volume 1
Part I Introduction3. Laws of evidence: Purposes to be served
Part II The Need for a Comprehensive and Uniform Law of Evidence4. Inconsistencies and uncertainties
5. A uniform, comprehensive law?
Part III The Need for Reform7. Psychological and physical competence
8. Legal competence and compellability
12. Secondary evidence of documents
15. Admissions and confessions
16. The rule in Hollington v Hewthorn
17. Evidence of character and conduct
18. Eye-witness identification
20. Discretion to exclude illegally and improperly obtained evidence
22. Maters of which proof not required
24. Authentication and identification
Part IV Commentary on Proposals27. Competence and compellability
28. Sworn and unsworn evidence
29. Manner of presenting evidence
35. Convictions and judgments as evidence of facts on which they are based
36. Evidence of character and conduct
39. Discretions to exclude evidence
41. Authentication and identification
Volume 2
Appendix A - Draft Legislation
Appendix C - 1. Competence and compellability
Appendix C - 2. Sworn and unsworn evidence
Appendix C - 3. Questioning of witnesses
Appendix C - 5. Secondary evidence of documents
Appendix C - 6. Hearsay evidence
Appendix C - 7. Opinion evidence
Appendix C - 8. Admissions and confessions
Appendix C - 9. Convictions and judgments as evidence of facts on which they are based
Appendix C - 10. Evidence of character and conduct
Appendix C - 11. Eyewitness identification
Appendix C - 13. Discretion to exclude
Appendix C - 14. Judicial notice
Appendix C - 15. Authentication and identification
Appendix C - 16. Standard of proof
Appendix C - 17. Corroboration
Appendix C - 18. Inspection out of court
Appendix C - 19. Procedure for determining admissibility of evidence
© Commonwealth of Australia 1985
ISBN for set of two volumes: 0 644 01302 8
ISBN for Volume 1. 0 644 01303 6
ISBN for Volume 2. 0 644 01304 4
This work is copyright. For further information about reproducing this document—in whole or in part—please refer to the ALRC’s copyright statement.
ALRC homepage: www.alrc.gov.au
I, PETER DREW DURACK, Attorney-General of the Commonwealth of Australia, HAVING REGARD TO:
(a) the recommendations of the Senate Standing Committee on Constitutional and Legal Affairs, made in its Report on the Reference: The Evidence (Australian Capital Territory) Bill 1972 that:
(i) a comprehensive review of the law of evidence be undertaken by the Law Reform Commission with a view to producing a code of evidence appropriate to the present day; and
(ii) a Uniform Evidence Act be drafted:
― to apply the same law of evidence to ACT and to the external Territories;
― as far as is appropriate, to apply the same law of evidence in all Commonwealth courts and tribunals; and
― to include the matters now covered in the Evidence Act 1905 and the State and Territorial Laws and Records Recognition Act 1901; and
(b) the need for modernization of the law of evidence used in Federal Courts, the Courts of the Australian Capital Territory and the external Territories and Federal and Territory tribunals by bringing it into accord with current conditions and anticipated requirements;
HEREBY REFER to the Law Reform Commission as provided by the Law Reform Commission Act 1973 TO REVIEW the laws of evidence applicable in proceedings in Federal Courts and the Courts of the Territories with a view to producing a wholly comprehensive law of evidence based on concepts appropriate to current conditions and anticipated requirements AND TO REPORT:
(a) whether there should be uniformity, and if so to what extent, in the laws of evidence used in those Courts; and
(b) the appropriate legislative means of reforming the laws of evidence and of allowing for future change in individual jurisdictions should this be necessary.
IN MAKING ITS INQUIRY AND REPORT the Commission will have regard to its functions in accordance with sub-section 6(1) of the Act to consider proposals for uniformity between laws of the Territories and laws of the States.
DATED this 18th day of July 1979.
Peter Durack
Attorney-General
For the purpose of the Reference, a Division* comprising the following members of the Commission was created in accordance with s 27(1) of the Law Reform Commission Act 1973.
The Hon Justice MD Kirby, BA, LLM, BEc (Syd) (to 23 September 1984*)
The Hon Justice MR Wilcox, LLB (Syd) (1984-1985)
Mr TH Smith, BA, LLB (Melb) Barrister of the Supreme Court of Victoria
The Hon Justice GE Fitzgerald, LLB (Qld) (to 30 June 1984) Judge of the Federal Court of Australia Deputy President of the Administrative Appeals Tribunal
The Hon Justice FM Neasey, LLB (Tas) (to 19 October 1984) Judge of the Supreme Court of Tasmania
Mr T Simos, QC, BA, LLB (Syd), LLM (Harv), MLitt (Oxon) Barrister of the Supreme Court of New South Wales
Mr IG Cunliffe, BA, LLB (ANU)
Stephen Mason, BA, LLB, MTCP (Syd)
The Commission acknowledges the assistance of Mr JQ Ewens, QC, CMG, CBE, LLB (Adel), formerly First Parliamentary Counsel, and Mr V Robinson, BA, LLB (ANU), Senior Assistant Parliamentary Counsel, Office of Parliamentary Counsel, Canberra, in settling the draft legislation set out in Appendix A.
Michael Ball, BA, LLB (Adel), Senior Law Reform Officer (to 1983)
Ian Freckelton, BA, LLB (Syd), Senior Law Reform Officer
Stephen Odgers, BA, LLB (ANU), Senior Law Reform Officer
Loretta Re, BA, LL M, Dip Ed (Melb), Senior Law Reform Officer
Ainslie Sowden BA (ANU), Seconded Officer from Department and Administrative Services (1980-1981)
Peter Driessen BA, LLB (Macq), Law Reform Officer (1984)
Alexis Hailstones B Juris, LLB (NSW), Law Reform Officer (1984)
Catherine MacAdie LLB (Syd), Law Reform Officer (1984)
Barry Hunt, BA (Syd)
Virginia Pursell, BA (NSW), Dip Lib (CCAE), Librarian
Anna Raso
Maria Raiti
Mr KV Borick, Barrister, South Australia
Sergeant Peter Duffy, Australian Federal Police
The Hon Sir Richard Eggleston, former Chancellor, Monash University, Melbourne
The Hon Mr Justice HH Glass, NSW Court of Appeal
Mr C Hermes, formerly Chief Magistrate, Court of Petty Sessions, Canberra
Mr Dyson Heydon, Barrister, Sydney
Mr DA Jessop, Attorney-General's Department, Canberra
Chief Superintendent J Kelly Australian Federal Police
The Hon Trevor Martin, QC, formerly Judge of NSW District Court and Member of the NSW Law Reform Commission
Mr D Meagher, QC, Barrister, Victoria
The Hon Mr Justice PE Nygh, Family Court of Australia
The Hon Mr Justice IF Sheppard, Federal Court of Australia
Mr D Sturgess, Barrister, Brisbane and now Queensland Director of Prosecutions
Mr C Tapper, Reader in Law, Oxford University
Dr D Thomson, Department of Psychology, Monash University, Melbourne
Mr Frank Vincent, QC Barrister, Melbourne
Mr P Waight, Senior Lecturer in Law, Australian National University
Mr M Weinberg, Senior Lecturer in Law, University of Melbourne
The Hon Trevor Martin QC
Michael Corrigan
Ruth Jones, New South Wales Law Reform Commission
Paul Gard, New South Wales Law Reform Commission
* Although printed and presented to the Attorney-General in 1985, this report is made by the Evidence Division of the Commission as at 30 June 1984.
** The recommendations in the report and statements of opinion and conclusion are necessarily those of the Members of the Law Reform Commission alone. They may not be shared by the consultants or nominees nor by the departments or organisation with which they are associated.
The following explanations may assist readers not familiar with some legal terms.
Burden of Proof. ‘Burden of proof’ refers to the obligation imposed on a party to establish a particular issue raised in legal proceedings. For example, in a murder trial, the Crown will have the obligation of establishing that the accused did the act which caused death and that he did so intentionally. On the other hand, if the accused wishes to argue that he was insane at the time the offence was committed, he will carry the obligation of establishing the fact. The Crown and the accused, respectively, have ‘the burden of proof’ in relation to these issues.
Common Law. The laws developed and explained by decisions of the courts.
Competence and Compellability. These descriptions are applied to witnesses. A competent witness is one who is permitted by law to give evidence in proceedings. A compellable witness is a competent witness who can be compelled to give evidence when unwilling to do so.
Corroboration. Where evidence is given in a trial by children, by victims of sexual assault, or by accomplices of the accused, the law requires corroboration. This is evidence of other witnesses which confirms or supports that of the child, victim or accomplice. Corroboration is also required in other situations—for example, in trials for treason or perjury.
Doctrine of Precedent. It requires a judicial officer to apply decisions of courts situated above him in the court structure of which he is a member.
Issue Estoppel. Prevents parties relitigating issues decided in an earlier case between them.
Hearsay Rule. This rule prevents a witness giving evidence of what he has heard others say. The rule applies, however, only where the purpose for giving the evidence is to prove the truth of the facts contained in such statements. It does not prevent evidence being given if the purpose is to establish that a statement was made—for example, the statement complained of in a defamation case.
Parol Evidence Rule. This rule prevents the parties to a written agreement, who intended that it should be the sole record of their agreement, presenting other evidence to the court in an attempt to alter, or add to, or contradict that written agreement.
Presumptions. Conclusions or inferences that are drawn by the court from known facts.
Probative. Evidence is probative of a fact when it tends to prove that fact.
Res Gestae. The doctrine of res gestae allows evidence to be led, amongst other things, of everything said and done in the course of the incident or transaction that is the subject of the trial.
Res Judicata. When a decision has been given in a case, the subject matter of that case cannot be raised again in a later case between the same parties.
View. The inspection by the court of the place where the events in question in the trial took place.
1. Program and Progress. Under the terms of its reference on the law of evidence, the Law Reform Commission is required to review the laws of evidence applying in federal courts[1] and the courts of the Territories[2] `with a view to producing a wholly comprehensive law of evidence based on concepts appropriate to current conditions and anticipated requirements'. The Commission is also asked to report on:
(a) whether there should be uniformity, and if so to what extent, in the laws of evidence used in those courts; and
(b) the appropriate leislative means of reforming the laws of evidence and of allowing for a future change in individual jurisdictions should this be necessary.
2. In Discussion Paper No 16, Reform of Evidence Law 1980, the Commission outlined its program for the reference. The program was divided into two major exercises. The first was a review of the law of evidence. The second was the preparation of a report on whether and to what extent there should be uniformity in the laws of evidence applied in the relevant courts and what reforms should be advanced. The results of the review of the law are summarised in Appendix C to this report. Work has advanced on the second stage and the commission has reached tentative conclusions on the issues of uniformity and reform.
3. Commission's View. The Commission has reached the following tentative conclusions:
• Uniformity. Federal courts apply the laws of evidence of the State or Territory in which they happen to be sitting.[3] At present there is uniformity between the courts of a State4 and the federal courts when sitting in that State[4], not between federal courts sitting in different States. The issue is whether, if there must be some disuniformity, it is better that there be uniformity between State and federal courts sitting in a particular State, or between all federal courts throughout Australia. The Commission is strongly in favour of the latter on grounds of convenience and principle. But even disregarding those considerations, if the choice is between leaving federal courts to administer complex, obscure, uncertain and conceptually unsound laws of evidence or of introducing a simpler and up-to-date law of evidence, the choice is clear. For these reasons, the Commission proposes that a comprehensive Evidence Act should apply in proceedings in federal courts and courts of the Territories.
• Reform. The Commission is of the view that the law of evidence is badly in need of reform. The present law is the product of unsystematic statutory and judicial development. It is a highly complex body of law which is arcane even to most legal practitioners. It contains traps and pitfalls which are likely to leave the unrepresented litigant baffled, frustrated and defeated. The law of evidence differs widely from State to State. The differences from jurisdiction to jurisdiction derive not only from differences in Evidence Acts but also from differences in the common law applied by the courts of the various States. There are also many areas of uncertainty in the law of evidence - areas on which definitive law is yet to be pronounced by the courts. The need for reform is also demonstrated by what happens in practice - the complexities are ignored; oversimplified versions of the law are applied and judges try to discourage use of its technicalities.
4. The report sets out the significant inconsistencies,[5] areas of uncertainty[6] and other criticisms that can be made of particular rules.[7] They are found in all areas of the laws of evidence. The Commission's present view is that there is a very strong case for the provision of uniform comprehensive laws of evidence for federal and Territory courts and for such laws to be enacted in legislation and to address the deficiencies in the laws of evidence. The Commission, however, invites a response to the issues raised in this report and to the tentative conclusions it has reached on these topics.
5. The Test. Before making any final recommendations the Commission must, in addition to seeking responses on the above issues, formulate draft proposals to test the viability both of a uniform comprehensive Act and of particular reforms of the laws of evidence. To this end, it has prepared draft legislation which is set out below[8] together with a commentary.[9]
6. Preparation of Legislation. In working towards the draft legislation, the Commission followed a research program in which 16 research papers were produced. These were distributed widely to legal professional bodies, magistrates, academics involved in teaching evidence, federal and State judges and retired judges, the police, practitioners and other interested persons and organisations. Many submissions were received and considered. In addition regular meetings were held with consultants over a period of approximately two years to discuss the draft proposals. These proposals were then revised and brought together after further consultation into the one piece of legislation. An object of the Interim Report is to seek responses to that legislation.
7. Topics. The legislation deals with the following major topics:
• Witnesses - competence and compellability of witnesses; sworn and unsworn evidence; the manner of giving evidence;
• The Admission and Exclusion of Evidence - relevant evidence; documents; hearsay evidence; opinion evidence; admissions; judgments and convictions as evidence of the facts on which they are based; character and conduct evidence (including evidence relating to the credibility of witnesses); identification evidence; privileges; evidence excluded in the public interest; discretions to exclude evidence;
• Aspects of Proof - judicial notice; facilitation of proof; standard of proof; corroboration; warnings to juries.
8. Policy Framework. While much has been written in the past about the content of the laws of evidence, little has been written about the purposes that they should serve. The report[10] discusses the competing policy objectives and sets out the policy framework that has been adopted. Pre-eminence is given to the factfinding task of the courts. The credibility of the trial system ultimately depends on its performance in this area. So the proposals are directed primarily to enabling the parties to produce the probative evidence that is available to them.[11] Departures from this objective require justification - for example, balancing fairness, considerations of cost and time.
The different nature and objectives of the civil and criminal trial have been taken into account. Both are adversary systems, but the former is a system for resolving disputes and the latter is an accusatorial system in which the State accuses the defendant of breaking the law. Individual liberty and civil liberties are at stake in criminal trials. Although issues equal to or approaching the seriousness of those raised in criminal proceedings are raised at times in civil proceedings - for example questions of fraud, bankruptcy, divorce and custody - the differences between the essential nature and purposes of civil and criminal proceedings still apply whatever the subject matter of the particular proceedings. A traditional concern of the criminal trial system has been to minimise the risk of wrongful conviction. In the light of these considerations, a mort• stringent approach has been taken to the admission of evidence against an accused person (as distinct from admission for the accused's benefit). The distinction between the prosecution and the accused has also been recognised in other areas - for example, the compellability of the accused, cross-examination of the accused, unsworn evidence by the accused, evidence of prior conduct and character. The effect the proposed reforms will have on the balance between prosecution and defence in criminal trials, has been borne in mind at all times.
9. The proposals also reflect a bias towards minimising judicial discretion particularly in those rules controlling the admissibility of evidence. Wherever possible, a proposal is presented in the form of a rule. Only where the relevant policy considerations prevent this have proposals in the form of discretions been advanced. A reasonable level of predictability is needed to enable parties to prepare for trial and assess their prospects of success. It must also be remembered that rules of evidence must often be applied by the courts without substantial time for reflection. At all times consideration has been given to the impact of change on the time and cost of litigation and on the time and cost of activities outside the courtroom. At all times clarity and simplicity has been the objective.
10. Reform proposals are advanced only in relation to criticisms of the law thought to be valid. An attempt has been made to reduce the significant level of uncertainty in existing law. Technicalities have been minimised so that the problem of the rules lying in wait for the unwary has been reduced. The legislation also significantly rationalises existing law. At the same time, anyone who is familiar with the existing law will find much in the legislation that is familiar and it will be possible for legal practitioners, judges and magistrates to proceed much as they have in the past. In a number of areas it may be thought that little has been changed. There are, however, a number of proposals which involve significant changes to the law.
11. Rules of Admissibility. The legislation sets out the rules to control the admissibility of evidence. The primary rule[12] is that if evidence is relevant, directly or indirectly to an issue in a case, it is admissible unless otherwise excluded. If it is not relevant, it is inadmissible. The legislation defines relevant evidence as evidence which, if it were accepted, could rationally affect the assessment of the probability of the existence of a fact in issue. It also articulates the discretion inherent in the different definitions of relevance presently used by including a residuary discretion to exclude evidence where its probative value is outweighed by the disadvantages of its admission - ego, time, cost, risk of confusion etc (the approach taken in the US Federal Rules.) The legislation sets out those other rules of admissibility which will operate to exclude evidence which is relevant to the issues in a case. Again, in reading the proposals, people familiar with the rules of evidence will find much that is familiar. The proposals build upon but rationalise and reform existing law.
• Hearsay Evidence.[13] The common law rule excluding evidence of out-of-court statements and its exceptions have been the object of repeated criticism for many years. The difficulties created by the common law are reflected in the vast body of differing legislation which has attempted to address problems usually on an ad hoc basis. It, however, is additional to the common law exceptions. This has added to the `crazy-quilt' effect of the law. Dissatisfaction with the law in the United Kingdom and in Commonwealth countries has, at last count, resulted in at least twelve reports by law reform bodies in recent years. The proposal retains a rule of exclusion but provides new exceptions. The exceptions are divided into provisions relating to first hand hearsay[14] and more remote hearsay. As to first hand hearsay, the following applies:
(a) Civil Proceedings.[15] In civil proceedings, where the maker of the out-of-court statement is unavailable, first hand hearsay should be admissible on notice to the other parties. Where the maker of the statement is available, evidence should be admitted without calling the maker if to do so will involve undue delay or expense or would not be reasonably practicable. Where the maker is or would be called as a witness, the hearsay evidence should be limited to that made at the time or shortly after the events referred to in it.[16]
(b) Criminal Proceedings. Hearsay evidence should not be admitted against an accused person unless it is the best evidence that is available and it can be shown to have reasonable guarantees of reliability. On the other hand, an accused should be allowed to lead hearsay when it is the best evidence he has available to him. So, where the maker of the statement is not available, first hand hearsay should be admissible for the prosecution on notice provided it satisfies specified guarantees of reliability.[17] It should be admissible for the accused on notice. Where the maker is available, he must be called and only statements made at or shortly after the relevant events should be admitted.
As to more remote hearsay, specific categories of evidence should be admissible on the basis of their reliability or necessity, or on both grounds. Categories include government and commercial records, reputation as to family relationships and public rights, telecommunications, commercial labels and tags.[18] The rules relating to hearsay evidence and all other rules of admissibility are subject in both civil and criminal proceedings to the abovementioned exclusionary discretion which will enable the court to exclude evidence where the probative value of the evidence is substantially outweighed by the disadvantages of receiving it.[19] In addition, in criminal trials the common law discretion to exclude prosecution evidence where its prejudicial effect outweighs its probative value is retained.[20]
• Secondary Evidence of Documents.[21] At common law the original document must be produced unless it is shown that it cannot be produced. This applies regardless of the importance of a document in the case in question. Even a party in possession of the original document can object to the other party tendering secondary evidence of it where the tenderer did not make any formal request to have the original document made available. Evidence is also required to authenticate any copy document regardless of its importance, the obvious authenticity of the copy, and regardless of whether there is any genuine need to have authenticating evidence. The application of common law rules has given rise to difficulties in proving the contents of writings contained in modern photocopies and microfilm.
An attempt was made in the 1960s to enact uniform legislation to deal with modern techniques of reproducing documents. This legislation, regrettably, is so complex that few organisations have attempted to comply with it. The legislative proposals in this report attempt to rationalise the common law and the legislation. Technicalities have been removed and special provisions are included to enable government and commercial records kept in microfilm and other copy forms to be proved by production of such copy records or prints made from them notwithstanding the availability of the original document. Provisions are also advanced to facilitate the authentication of copies and, in particular, copies of commercial and government records.
• Admissions and Confessions.[22] The present test, in criminal trials, for the admissibility of admissions and confessions by an accused person is whether the admission or confession was made voluntarily. An examination of the decided cases, however, reveals uncertainty as to whether this test is directed towards maximising the probability of the truth of the admission or confession or whether it is directed to ensuring compliance with the law and respect for civil liberties on the part of law enforcement agencies. At times discussions in the cases suggest that both considerations are involved. The concept of voluntariness is unsatisfactory.
The proposals address the above two policy objectives of the voluntariness rule maximising the probability of the truth of the admission and the preservation of the rights of the individual suspect - by advancing three main proposals:
(a) to be admissible, an admission must be shown not to have been influenced by violent, oppressive, inhuman or degrading conduct;
(b) to be admissible, an admission must be shown to have been made in circumstances unlikely to affect its truthfulness adversely; and
(c) a discretion is provided enabling the court to exclude evidence obtained illegally or improperly - developed from the present common law discretion.
The legislation, however, does not retain the discretion to exclude evidence of an admission or confession which is based on unfairness to the accused (the `Lee' discretion). `Fairness' is a vague concept and the courts have not defined precisely the principles behind it and considerations relevant to it. This has led to uncertainty and unpredictability, and made satisfactory appellate review extremely difficult. The term, if retained, would have to be defined. It is difficult to define and the policy issues are better dealt with in the ways proposed Further, each possible rationale for the discretion can be satisfactorily met by the proposed rules.
• Identification Evidence.[23] Identification evidence has been recognised for some time as amongst the most unreliable and potentially dangerous categories of evidence. Unlike other unreliable or dangerous evidence, however, such as hearsay evidence or evidence of bad character, the courts have not developed any rules to control its admissibility. Instead the courts have relied on giving warnings to juries as to the dangers of the evidence and relied on the general judicial discretion to exclude evidence where its prejudicial effect outweighs its probative value. The legislation in the report contains proposals developed from the Devlin Committee Report and the Australian Law Reform Commission's Report on Criminal Investigation. Important features to note are:
- an exclusionary rule is created under which identification evidence will not be admissible unless an identification parade was held prior to the act of identification. This rule is subject to the exception that a parade need not be held where it would not have been reasonable to do so;
- evidence of identification by police photographs will not be admissible when it is led by the prosecution unless the photographs include those of people without criminal records or, where the accused is in custody, the photograph of the accused that was used was one taken after the accused was taken into custody;
- where the suspect is in custody, the evidence of a subsequent photo identification will not be admissible unless it was not reasonable to hold an identification parade;
- special provisions are included on the directions that should be given to juries and to impose an obligation to direct an acquittal of an accused where there are no special circumstances in relation to the identification and no other substantial evidence which implicates the accused. These proposals are based upon those advanced by the Devlin Committee.
• Privilege.[24] There are several rules which enable a person to prevent confidential communications being disclosed in court or which prevent such evidence being given. The proposed legislation preserves those privileges which exist in all jurisdictions with some modifications directed to removing deficiencies and addressing criticisms. One privilege that warrants specific mention in this brief summary is the privilege against self-incrimination. At common law, a witness can object to answering any question the answer to which may tend to incriminate him. This privilege has been subject to various modifications in different jurisdictions. In particular, in Western Australia, Tasmania and the Australian Capital Territory there is a certification procedure under which a judge may grant a certificate which either confers immunity from prosecution on the witness or renders any evidence that he may give inadmissible against him in any subsequent criminal proceeding. In recent years the issue has been raised as to whether the privilege should be abolished. This issue is considered in the report. The conclusion reached is that the privilege should be retained as a protection of the individual's personal freedom. It is, however, recognised that the privilege can deprive the courts of information relevant to the proceedings and thus make the fact finding task more difficult. The Commission has formed the view that the proper solution in light of the competing interests is to retain the privilege in a modified form. A modified version of the certification procedure operating in the Australian Capital Territory is proposed. Under this proposal a witness may claim the privilege but if he is prepared to testify, the judge may issue a certificate which will prevent the evidence being admitted against him in subsequent legal proceedings. Unlike the ACT provision, the certificate will only be issued if the witness consents to the procedure. The decision will be for the witness, not for the judge.
The report also proposes the continuation of a client-lawyer privilege broadly along traditional lines. However, it is proposed that the communications to be protected must be made in the context of a professional relationship between the lawyer and client or between the client's lawyers and for the dominant purpose of obtaining or giving legal advice or assistance. The proposals have been framed in such a way as to ensure that evidence about concluded conveyancing and other property transactions would not be excluded. In addition, protection is given to communications between the lawyer or the client and third parties for the dominant purpose of obtaining or giving legal advice and assistance related to pending or contemplated litigation.
A major issue in the area of privilege is whether privileges should be extended to relationships other than those presently protected. In particular, calls for such an extension have come from the doctors, clergymen,[25] those involved in peer review, psychiatrists, psychologists, social workers and journalists. Relationships in which such people are professionally involved proceed on the basis that confidentiality will be maintained. A lack of confidentiality, for example, could stand in the way of effective therapy by psychiatrists, psychologists, social workers and school counsellors. In addition, it has been argued that the free dissemination of news could be hindered by the absence of protection of the journalist-source relationship. The competing public interests applicable to such confidential professional relationships, however, support a discretion to protect confidential communications in appropriate cases rather than a privilege in all cases. In none of them is litigation always or even very frequently a likely eventuality. Further, complete confidentiality is not always a prerequisite to the formation or continuance of the relationship.
• Opinion Evidence.[26] There has been much publicity of problems associated with the tendering of expert opinion testimony in the law courts. Most of these problems are associated with lack of pre-trial disclosure of information and lack of resources available to accused persons - matters outside the reference. The proposals concern themselves with the admissibility of both lay and expert opinion testimony. They rationalise the existing law. Among other things the proposals abolish the rules preventing an expert witness giving evidence on matters of common knowledge and expressing an opinion on an issue that is an ultimate issue in the trial. The law in these areas is extremely confused. It operates on occasions to prevent courts receiving evidence which could be of assistance.
• Evidence of Character and Conduct.[27] The legislation proposed by the report is similar to the existing law in most areas. It does, however, attempt to give more guidance particularly in the area of the admissibility of evidence of prior misconduct by the accused in criminal trials, and of evidence of the conduct of other persons whether in civil or criminal proceedings. An issue that emerged in formulating proposals for evidence of prior misconduct of the accused was whether it should be permissible to use such evidence to show a propensity or tendency on the part of the accused to behave in a particular way and to reason from that to the conclusion that the accused committed the crime in question - it being of a similar kind and in similar circumstances. This would be allowed under the proposals. There is a debate, however, as to whether it is permissible under existing law.[28] Another point to note about the recommendations is that generally evidence of reputation, including sexual reputation, will not be admissible. Proposals are also advanced about evidence relevant to the credibility of witnesses. They tighten the control over cross-examination of witnesses on matters going only to their credibility but, having done so, relax slightly the rule that the cross-examiner is bound by the answers received. The proposal, in this regard, adopts the existing categories under which a witness' denials may be rebutted but adds a further category: knowingly or recklessly making a false representation at a time when under an obligation imposed by law to tell the truth. The formulation of the proposals in this area has been influenced by the psychological research which indicates that, for the purpose of predicting behaviour, abstract character traits on their own are extremely poor indicators. What is required is information on the behaviour of the person concerned in similar circumstances. The research also shows that we tend to explain the behaviour of others (but not our own) on the basis of character traits which we assume continue to operate regardless of the context and that if we are aware of one bad character trait, we tend to attribute other bad traits to the particular individual. As to the cross-examination of an accused with a view to attacking his credibility, an approach similar to that in New South Wales is adopted. The legislation provides that apart from questions directed to such things as motive to be untruthful, physical or mental disabilities or prior inconsistent statements, the accused may, by leave, be cross-examined by the prosecution on matters relevant to credibility only where the accused has given evidence tending to prove that a witness called by the prosecution is untruthful and where the purpose of adducing that evidence was solely or mainly to impugn the credibility of that witness and that evidence has been admitted.
12. Competence and Compellability.[29] In most jurisdictions, the spouse of an accused is not compellable as a witness for the prosecution except in relation to trials for certain specified offences. The unsatisfactory features of this approach are discussed in the report. An alternative approach has been taken in recent years in Victoria and South Australia under which the spouse of the accused is a compellable witness for the prosecution but may seek exemption from the trial judge. It is the Commission's view that this approach offers the best means of ensuring the achievement of the underlying policy objectives of protection of the family unit and the avoidance of undue hardship to the witness. The proposal extends the right to seek exemption to parents and children of the accused (as in the Victorian and South Australian legislation) and to the de facto spouse of the accused (as in the South Australian legislation).[30]
13. Sworn and Unsworn Evidence.[31] The Commission advocates application of the option presently available in the Federal Court and in some States under which the witness chooses whether to swear a religious oath or make an affirmation.[32] The Commission has also considered the right of the accused to make an unsworn statement. This right was originally provided at the time when the accused was unable to give sworn evidence. That is now no longer the case. The right to make an unsworn statement has come under frequent attack and has been abolished in Queensland, Western Australia and the Northern Territory. In Victoria and in South Australia, however, reports in recent years have recommended its retention.[33] The Commission is of the view that the right should be retained as there is still a need for such a right for some accused persons, particularly Aboriginals. The draft legislation, however, addresses a number of the criticisms that may properly be made about the law and about abuses that have occurred in the exercise of the right to make unsworn statements.
14. Interpreters.[34] The existing law places the onus on a person wanting to use an interpreter to persuade the court that an interpreter is needed. There has often been a reluctance on the part of the courts to allow interpreters to be used. This reluctance reflects in part a misunderstanding of the processes of interpretation. The primary proposal reverses the onus under present law, enabling a witness to give evidence through an interpreter unless the court otherwise orders. An alternative proposal is included, which adds the qualification that a witness who gave evidence-in-chief without an interpreter but seeks an interpreter for cross-examination cannot do so without leave.
15. Corroboration.[35] It is proposed to abolish the existing complex, technical, artificial, misleading and anomalous rules on corroboration. In their place is put forward a regime under which the trial judge must consider whether evidence comes within any of the broad categories of evidence listed in the legislation and, if so, whether it may be unreliable or the probative value of the evidence may be mis-estimated. If the judge considers the evidence to be such, he is obliged, unless there is a good reason for not doing so, to warn the jury as to the dangers attaching to that evidence. However, he will not be obliged to direct the jury to look for evidence independent of the suspect's evidence to corroborate it; such a warning can be confusing and misleading. It distracts attention from the problem that the evidence in question may be unreliable or liable to mis-estimation. The fact that there is other evidence that corroborates it does not alter that fact nor does it make the evidence more reliable or less liable to mis-estimation.
16. Other Proposals. The draft legislation also includes proposals to:
• abolish the rule that evidence of a conviction may not be received in a civil trial when tendered as evidence of the facts on which it was based;[36]
• relax the rules controlling the admissibility of admissions by persons employed or acting for a party;[37]
• extend the power of a party to challenge the evidence of a witness called by that party, at present limited to witnesses who are `hostile', to ensure that all evidence placed before the court will have been tested by at least one of the parties to the proceedings;[38]
• rationalise and simplify the rules facilitating the authentication of documents;[39]
• permit the court in deciding whether a document is admissible, to draw inferences from a perusal of the document;[40]
• to abolish the rule under which a party calling for and inspecting a document in the possession of the other party can be compelled to tender the document in evidence;[41] and proposals that
• a `view' outside the courtroom may be used as evidence;[42]
• formal proof rot be required of proclamations and regulations or of facts which, while not matters of common knowledge, are not reasonably open to dispute;[43]
• the relevant courts in civil trials be given a power to dispense with the rules of evidence. Such a power is already enjoyed by several courts including the Federal Court.[44]
17. Future Consultation. The topics covered in the legislation are of far-reaching importance to the conduct of criminal and civil trials in federal and Territory courts. Proposals such as those relating to privileges, admissions and confessions, and identification evidence, are of considerable significance to the investigation of crimes and the protection of civil liberties. It is proposed to engage in further consultation and to seek a response, in particular, on:
• the need for a comprehensive and uniform law of evidence for federal and Territory courts;
• the need for reform of the laws of evidence applying those courts;
• the proposals and alternatives advanced in the draft legislation contained in the Interim Report.
[1] The High Court, the Federal Court and the Family Court.
[2] The Supreme Court and Courts of Petty Sessions of the Australian Capital Territory. Norfolk Island. Christmas Island and Cocos (Keeling)
Islands.
[3] Section 79, s 80 Judiciary Act 1903.
[4] The same issues arise in relation to federal courts. Territory courts and the laws of evidence.
[5] See paras 94-212 for a selection and Appendix C for a more detailed account.
[6] See paras 94-212 For a selection and Appendix C For a more detailed account.
[7] See paras 236-508.
[8] Appendix A.
[9] See paras 509.
[10] See paras 11-18 and 48-89. See also Australian Law Reform Commission, Issues Paper No 3. Evidence Law Reform Sydney, 1980. As to
the definition of the laws of evidence see para 27-47.
[11] Law Reform Committee, England and Wales 13th Report, Hearsay Evidence in Civil Proceedings, HMSO, London 1966 (LRC 13).
[12] See para 638-47.
[13] See para 661-730.
[14] First hand hearsay evidence is evidence of representations of fact made by persons with personal knowledge of the fact stated or
persons who might reasonably be supposed to have such personal knowledge. More remote hearsay evidence is described in the text as
second-hand hearsay evidence and is evidence of representations of fact made by persons who do not have personal knowledge of the
facts.
[15] These proposals are developed from the LRC 13 and the English Civil Evidence Act 1968.
[16] It is the 'best available' evidence and to admit later statements could significantly add to the time and cost of trials without
any matching benefit.
[17] These proposals are developed from and rationalise existing exceptions.
[18] These proposals are developed from existing Commonwealth and State legislation and the common law
[19] Above para 11.
[20] Two members of the Commission hold dissenting views. One supports a discretionary approach (see below para 723-9) and the other a
codification of the law as it applies to first hand hearsay (see below, para 730).
[21] See para 648-60.
[22] See para 752-70.
[23] See para 824-846.
[24] See para 847-956.
[25] Privileges exist in the Northern Territory, Tasmania and Victoria to protect the doctor-patient and priest-penitent relationships.
[26] See para 731-751.
[27] See para 784-823.
[28] One member of the Commission argues in the report that it is not and should not be permitted - see para 812-6.
[29] See para 525-559.
[30] One member of the Commission has dissented from this proposal and argues that the right to seek exemption should extend to all `intimate
personal relationships' - see para 540-8.
[31] See para 560-95.
[32] One member of the Commission, however, holds the view that the oath should be abolished - see para 576-8.
[33] Victorian Law Reform Commission Report, No 11, Unsworn Statements in Criminal Trials, Govt Printer, Melbourne, 1981 and Select Committee
Legislative Council of South Australia, Final Report, Unsworn Statements & Related Matters, Govt Printer, Adelaide, 1981.
[34] See para 610-13.
[35] See para 1009-23.
[36] See para 771-83.
[37] See para 755.
[38] See para 621-7.
[39] See para 993.
[40] See para 984.
[41] See para 617.
[42] See para 1027-8.
[43] See para 973, 7.
[44] See para 1024, 5.
1. Uniformity and Reform. There should be a comprehensive uniform law of evidence applying in proceedings in federal and Territory courts (see Chapters 4 & 5—paras 90-230). It should reform existing law (see Chapters 6 to 25—paras 231-508). It should not apply to appeals to federal courts from courts of a State or the Northern Territory, nor override specific Commonwealth or Territory legislation such as the ‘competence and compellability of spouses’ provisions in the Family Law Act 1975 (para 512; Draft Bill, cl 9; 12). A Draft Bill has been prepared. In the paragraphs that follow are summarised the proposals contained in the Draft Bill.
2. Physical and Psychological Competence. All witnesses should be regarded as psychologically and physically competent unless the contrary is shown (para 522; Draft Bill, cl 13). The present test of psychological competence (an understanding of the nature and consequences of the oath) should be replaced by a requirement that the witness understand the obligation to give truthful answers and be able to understand and respond rationally to questions (para 522; Draft Bill, cl 14(1)-(3)). It should be open to a court to rule at any time during a trial that a witness should not give evidence if it appears that the witness does not meet these requirements. This power should be exercisable generally, and also in relation to particular evidence. Where a witness becomes unfit to continue, the evidence he or she has given should still be admissible (para 523; Draft Bill, cl 14(5)). It should be made clear that a witness’s physical disabilities do not affect his or her competence unless they cannot be overcome without undue cost or delay (para 523, 612; Draft Bill, cl 14(3); 28).
3. Legal Competence and Compellability. With the following exceptions, all persons should be competent and compellable witnesses in both civil and criminal proceedings (para 525; Draft Bill, cl 13):
• Heads of State and Parliamentarians. The Sovereign, the Governor-General, State Governors and foreign sovereigns should remain non-compellable, as should Lieutenant-Governors and Administrators of States and Territories and members of legislatures while the legislatures (including committees) are sitting (para 526; Draft Bill, cl 15).
• Judge and Juror. Judges and jurors should not be competent to give evidence in a trial in which they are acting as judge or juror (para 527; Draft Bill, cl 16(1)). Judges should not be compellable to give evidence in other proceedings about proceedings in which they were involved without the leave of the trial judge in the other proceedings (para 527; Draft Bill, cl 16(2)).
• Accused. An accused should not be competent to give evidence for the prosecution and should not be compellable to give evidence as a witness for him or herself or for a co-accused (para 528; Draft Bill, cl 17). A person charged with a related offence should not be compellable to give evidence and should not be able to give evidence for the prosecution unless, in exceptional circumstances, the trial judge gives permission (para 528; Draft Bill, cl 17(3)-(4)). Failure by the accused to give evidence should not be able to be used as an admission of guilt, but the trial judge should be able to instruct the jury as to the inferences they may, and may not, draw from the accused’s silence. Prosecutorial comment, on the other hand, should not be permitted (para 555-8; Draft Bill, cl 17(7)).
• Spouses. In a civil trial (other one those relating to custody, guardianship or wardship), a spouse (but not a former spouse or a de facto spouse) should not be compellable to give evidence of marital communications (para 899-902; Draft Bill, cl 19).
• Family of the Accused. In a criminal trial, the spouse of an accused (including a de facto spouse but not a former spouse) and the accused’s parents and children should be able to be excused from giving evidence for the prosecution. Applications for exemption should be dealt with in the absence of the jury (para 537-9; Draft Bill, cl 18).
Where it appears that a witness may be able to seek exemption the court should have to satisfy itself that the witness is aware of his or her rights to do so (para 528, 538; Draft Bill, cl 17(5); 18(5)).
4. Oaths and Affirmations. There should continue to be a requirement that witnesses be sworn and the religious oath should be retained, but witnesses should have the option of affirming (para 571-5; Draft Bill, cl 20(1)-(2)). The method of taking the oath or making an affirmation should be simplified, including by prescribing a form of oath and affirmation. Failure to comply with the formal requirements, however, should not invalidate the oath or affirmation (para 575; Draft Bill, cl 20(5)-(6)). Again, the trial judge should be required to advise witnesses of their rights (para 575; Draft Bill, cl 23).
5. Unsworn Statement of the Accused. An accused should have the right to make an unsworn statement (including by reading a prepared written statement). Such a statement should be treated as evidence and subject to the rules of evidence (including rules as to admissibility) (para 592; Draft Bill, cl 21(1), (3)). The accused should not be liable to cross-examination on an unsworn statement, but the perjury provisions of the Crimes Act 1914 should apply (para 592; Draft Bill, cl 21(6), (9)). Where the accused is legally represented, he or she should be allowed legal advice in preparing an unsworn statement and assistance in making it (para 592; Draft Bill, cl 21(3)-(5). Where an unsworn statement has been given, sworn evidence should not be allowed except with the court’s permission and the protection against cross-examination should be removed (para 592; Draft Bill, cl 21(2), (8)). The accused should be advised of his or her rights in the presence of the jury (para 592; Draft Bill, cl 23). The unsworn statement of one accused should not be capable of being used as evidence for or against a co-accused (para 592; Draft Bill, cl 21(7)). The trial judge should be able to comment on the failure of the accused to give sworn evidence, but not so as to suggest that the giving of unsworn evidence is due to an awareness of guilt or that unsworn evidence is necessarily inferior to sworn and cross-examined evidence. The prosecution should not be able so to comment (para 592; Draft Bill, cl 22). Evidence relevant to the credibility of an accused who makes an unsworn statement should be admissible to the like extent as it would be against an accused who gives sworn evidence (para 592; Draft Bill, cl 86).
6. General. An exhaustive statement of rules applying in this area should not be attempted (para 604). Instead, the following proposals of a general nature are suggested:
(a) Right to Question. It should be made clear that a party may question a witness called by another party even when that witness has not given evidence that affects the case of the former party (para 605; Draft Bill, cl 24).
(b) Order of Questioning. Unless the court orders otherwise, examination in chief should be completed before cross-examination, and, once all parties have been given the opportunity to cross-examine, re-examination may occur (para 605; Draft Bill, cl 5; 25).
(c) Narration. The court should be able to encourage the giving of evidence in narrative form (para 609; Draft Bill, cl 26(2)).
(d) Interpreters. A witness should be entitled to an interpreter unless the court orders otherwise. Interpreters should be able to be used for part only of the evidence of a witness. The trial judge should be able to stop the use of an interpreter at any time (para 611-13; Draft Bill, cl 27).
(e) Reviving Memory in Court. Leave of the court should continue to be necessary before the memory of a witness may be revived by referring to a document (para 614-5; cl 29(1)). The legislation sets out matters for the court to consider (para 614-5; cl 29(2); 142). The witness should be allowed to read aloud a document so used, subject to the leave of the court (para 614-5; cl 29(3)). The court should have the power to give directions for the production of a document so used to the parties (para 614-5; cl 29(4)).
(f) Reviving Memory out of Court. The trial judge should have a discretion to require production of any document or thing which was used out of court to revive a witness’s memory, whether successfully so used or not, unless protected by client legal privilege. If, without reasonable excuse, the document or thing is not produced, the judge should be able to refuse to admit the evidence (para 614, 6; Draft Bill, cl 30-1).
(g) Rule in Walker v Walker. The rule that a party calling for and inspecting a document can be required to tender it should be abolished (para 617; Draft Bill, cl 32).
7. Examination in Chief. A number of proposals should apply to the questioning of witnesses by the party that called them:
(a) Leading Questions. Parties should be able to put leading questions to witnesses they have called in relation to introductory matters and matters not in dispute. Otherwise, leave should be required (para 618-20; Draft Bill, cl 33).
(b) Unfavourable Witnesses. The law relating to ‘hostile’ witnesses should be abolished. Instead, a party should be able, in re-examination, to tender prior inconsistent statements of a witness it has called and fully question such a witness as if in cross-examination, both on the prior statement and as to credibility. The leave of the court should be required. The same regime should apply to witnesses who happen to ‘forget’ some evidence in examination in chief or rexamination. The party wishing to challenge the witness should have to seek leave at the earliest opportunity (para 621-7; Draft Bill, cl 34).
8. Cross-examination. The following proposals apply to the cross-questioning of witnesses by parties other than those that called them:
(a) Witness called by mistake. A party should be free to withdraw a witness called by mistake, provided that no evidence-in-chief has been given (para 630; Draft Bill, cl 36).
(b) Improper questions. The judge should be able to disallow misleading, oppressive, repetitive, hectoring or abusive questions, or to inform the witness that the question need not be answered. (para 631; Draft Bill, cl 37).
(c) Leading questions. The judge should also be expressly empowered to disallow leading questions in cross-examination (para 632; Draft Bill, cl 38).
(d) Rule in Browne v Dunn. A cross-examiner should be required to put to each of the opponent’s witnesses so much of the substance of his own case as concerns that witness or on which that witness could give evidence. Non-compliance should not result in the exclusion of evidence but the judge should have a discretion to permit recall of the witness (para 633-5; Draft Bill, cl 42).
(e) Cross-examination of Witness on Prior Statements. Cross-examination on a prior inconsistent statement of a witness should be allowed. Before doing so it should not be necessary to give complete details of the statement to the witness (para 636; Draft Bill, cl 39). Details should, however, be necessary before evidence of the statement is given by other witnesses (para 636; Draft Bill, cl 39(2)).
(f) Cross-examination on Prior Statements of Other Persons. No cross-examination should be permitted on statements that have not been and will not be admitted in evidence (para 636; Draft Bill, cl 40(1)-(2)). Where a written statement is not in evidence and cannot or will not be admitted in evidence, cross-examination should only be allowed in the following way: the witness should be shown the document, asked to read it and state whether he or she still adheres to the evidence given (para 636; Draft Bill, cl 40(3)). The judge should be able to require production of any document so used, may make such use of it as he or she thinks fit and, subject to the rules of admissibility, admit it in evidence (para 636; Draft Bill, cl 41).
(g) Cross-examination on Documents. It should be specifically provided that a cross-examiner is not obliged to tender a document used in cross-examination (para 636; Draft Bill, cl 41(3)).
9. Re-examination. Re-examination should be limited to matters arising in cross examination unless leave is given (para 628-9; Draft Bill, cl 35).
10. Relevance. The primary rule should be that relevant evidence is admissible unless specifically excluded by an exclusionary rule, and that irrelevant evidence is not admissible (para 640; Draft Bill, cl 44). Other points to note are:
(a) Definition. ‘Relevance’ should be defined in terms of capability of affecting the assessment of the probabilities (para 641; Draft Bill, cl 43).
(b) Discretion. In addition, policy considerations, presently concealed, which lie behind any decision on the relevance of evidence, should be made explicit by conferring on the judge an express discretion to exclude evidence if the advantages of admitting the evidence are, substantially outweighed by the risk of unfair prejudice, the risk of the court being misled (for example, by incorrectly assessing the weight of the evidence) and by the risk of confusion and of undue waste of time (para 643-5; Draft Bill, cl 114).
(c) Provisional Relevance. The relevance of evidence often depends on making some other finding, for example, about authorship of a document, identity, or the accuracy of machine produced evidence. The court should be able to admit such evidence provisionally subject to additional evidence being admitted to enable that other finding to be made (para 646; Draft Bill, cl 45). In determining the relevance of documents or things, the court should be expressly authorised to examine them and to draw any reasonable inference from them, including inferences as to their authenticity or identity (para 985-6; Draft Bill, cl 46). The standard of proof, for the purpose of determining admissibility, should in general be that it is reasonably open to make the other finding (para 646, 983; Draft Bill, cl 45). Specific provision should be made to ensure that evidence of statements made by an alleged conspirator and tendered as evidence of acts done pursuant to the alleged conspiracy continue to be admissible against all the alleged conspirators (para 646; Draft Bill, cl 45(2)).
The following exclusionary rules should apply to relevant evidence.
11. Secondary Evidence of Documents. The existing law should be replaced by a rule rendering oral evidence and documents generally inadmissible as evidence of the contents of the original document subject, however, to significant exceptions (para 651; Draft Bill, cl 48-9).
(a) Duplicates. Copies made by modern reproduction techniques should be admissible as evidence of the contents of the original, whether the original document is in existence or not (para 651; Draft Bill, cl 52).
(b) Original unavailable. Where the original is not available, oral or other secondary evidence should be admissible (para 651; Draft Bill, cl 51). For the purposes of these provisions, ‘unavailable documents’ includes those that:
(i) cannot be found after reasonable enquiry;
(ii) cannot be obtained by any judicial procedure of the court;
(iii) are in the possession or under the control of another party;
(iv) were in the possession or under the control of another party at a time that party knew or might reasonably be supposed to have known that the document was relevant to the proceeding; or
(v) are not closely related to the issues to. be tried (para 651; Draft Bill, cl 7(2)).
(a) However, where the original was destroyed in bad faith, secondary evidence should not be admissible (para 651; Draft Bill, cl 7(2)(b)).
(c) Modern documents. The legislation should encompass all modern information storing media (para 651; Draft Bill, cl 3, definition of ‘document’; 52(2)-(3)).
(d) Documents out of the jurisdiction. Where the original document is in another country, however, the party wishing to tender a copy should have to give notice or seek the leave of the court. (para 651; Draft Bill, cl 54). The recommended reforms of discovery provisions (see recommendation 657-8) should apply.
(e) Commercial and Government Records. A more relaxed regime should apply in relation to proof of the contents of business and public records (which should include commercial organisations and government departments and instrumentalities) (para 652-6; Draft Bill, cl 3, definition of ‘business’, and cl 3(2)). Copies of these documents should be admissible where the original is in existence without evidence that they are a copy, on proof of the fact that they were made and kept in the ordinary course of business (para 654-6; Draft Bill, cl 53) or purport to be copies of public records (para 656; Draft Bill, cl 53(2)). Where the original document is in another country, however, the party wishing to tender a copy should have to give notice or seek the leave of the court. (para 651; Draft Bill, cl 54). The recommended reforms of discovery provisions (see below recommendation 657-8) should apply.
12. Hearsay Evidence. Hearsay evidence should be defined as evidence of a representation made out of court to prove the existence of facts intended to be asserted in it (para 684; Draft Bill, cl 55(1)). The definition should cover representations in the form of oral or written statements or conduct (para 684; Draft Bill, cl 55(1)). Where evidence has been admitted for other purposes (eg to prove that a representation was made) it should be able to be used to prove the facts asserted in it (para 685; Draft Bill, cl 55(2)). There should be a general rule of exclusion of hearsay (para 675, 682, cl 55(1). A number of exceptions should be provided, however, for first hand hearsay that is, evidence of a representation by a person who witnessed the facts referred to in the representation (para 678, 682; Draft Bill, cl 56)—and more remote hearsay.
(a) First-hand Hearsay in Civil Proceedings. In civil proceedings, if first-hand hearsay evidence is the best evidence that a party has available to it, or the cost of calling direct evidence is not warranted, the exclusionary rule should not apply (para 682). Thus:
(i) Where the maker of the out of court representation is not available the hearsay rule should not exclude the evidence if notice is given (para 687, 695-8; Draft Bill, cl 57; 61). The maker should be regarded as being unavailable where he or she is legally incompetent or not permitted by law to give the evidence, is dead, cannot be identified or found after reasonable efforts, or resists all reasonable steps to compel the giving of the evidence (para 687, 691; Draft Bill, cl 7(1)).
(ii) Where the maker is available, the evidence should be admitted without calling the maker if notice is given to the other party and no objection is taken, or if the court grants leave (para 688; Draft Bill, cl 58(2); 61). Where the maker is called as a witness, the hearsay evidence should be limited to evidence of representations made at or about the time of the event to which they relate (para 688, 695-8; Draft Bill, cl 58(3)). Notice should include notice of all other relevant representations (para 695-8; Draft Evidence (Notice of Hearsay) Regulations, reg 3). The court should be able to relieve the parties of the consequences of non-compliance with the notice requirements (para 695; Draft Bill, cl 61(2)). Where the representation is contained in a document, it should not be possible to tender the document until the conclusion of the evidence-in-chief of the witness giving evidence of it unless the court otherwise orders (para 688; Draft Bill, cl 58(4)). The recommended reforms of discovery provisions (see paras 715-9) and other safeguards (below para 28) should apply.
(b) Firsthand Hearsay in Criminal Proceedings. In general, the accused should be able to have firsthand hearsay evidence admitted when it is the best evidence he or she has available. Where the maker of the representation is not available, the hearsay rule should not exclude the evidence provided notice is given (para 691; Draft Bill cl 59(5)). The rule against hearsay should not be relaxed in favour of the prosecution, however, unless there are also reasonable guarantees of reliability (para 691-2; Draft Bill, cl 59(2)). Thus, where the maker of the out of court representation is not available, the rule against hearsay would be relaxed for the prosecution if one or more additional specified guarantees of reliability were met—the person who made it was under a duty to make it; it was made at or about the time of the event it relates to; it was made in the course of giving sworn evidence that was open to cross-examination; or it was against the interests of the person who made it (para 692; Draft Bill, cl 59(2)).
Where the maker is available, he or she should be called and only statements made at or about the time of the events concerned should be admitted (para 693; Draft Bill, cl 60(1)). Proofs of evidence, however, should not be rendered admissible, although evidence relevant to identification should be so rendered (para 694; Draft Bill, cl 60(2)).
Notice should include notice of all other relevant representations (para 695-8; Draft Evidence (Notice of Hearsay) Regulations, reg 3)). The court should be able to relieve the parties of the consequences of non-compliance with the notice requirements (para 695; Draft Bill, cl 61(2)).
(c) More Remote Hearsay. In general, the rule against hearsay should not be relaxed for second-hand or more remote hearsay unless it comes within a limited number of categories chosen on the basis of reliability and necessity:
(i) business and government records (para 702-9; Draft Bill, cl 62(1)) containing representations made or recorded in the course of or for the purposes of a business. These proposals are based on existing Commonwealth legislation. Representations made in connection with legal proceedings, or in the course of the investigation of a criminal offence, should not be admissible under this provision (para 707; Draft Bill, cl 62(2));
(ii) trade labels, tags, inscriptions on goods. Evidence in that form should be admissible evidence of the facts stated in them—for example, place of origin, identity of manufacturer (para 712; Draft Bill, cl 62-3);
(iii) telecommunications, to prove the identity of the sender and recipient and the date, time and place of the sending (para 711; Draft Bill, cl 64);
(iv) evidence of reputation as to marriage, family history or relationships, and public or general rights, unless adduced by the prosecution (para 710; Draft Bill, cl 65).
The legislation should permit the admission of evidence relevant to the credibility of the maker of the representation who does not give evidence, being evidence about matters on which he or she could have been cross-examined if called as a witness (para 721; Draft Bill, cl 87). It should be possible to prove the conditions precedent required by these provisions by affidavit evidence or, in the case of government records, by written statement, made by a responsible officer. (para 713; Draft Bill, cl 136). Proposals to protect parties against whom the evidence is led are set out below (para 28).
13. Opinion Evidence. In general, evidence of opinion should not be admissible to prove the existence of a fact as to the existence of which the opinion is expressed. If the evidence is otherwise relevant, however, it should be able to be used for that purpose (para 738; Draft Bill, cl 66). There should be exceptions for:
(a) lay opinion evidence, if based on the personal perception of the witness and necessary for an adequate account of his or her perceptions (para 739-40; Draft Bill, cl 67); and
(b) expert opinion evidence, an expert being defined as a person who `has special knowledge, skill, experience or training (para 741-2; Draft Bill, cl 68).
There should be no requirement that an expert’s opinion be related to a recognised field of expertise or result from the application of theories or techniques accepted in that field (para 743). The rule excluding evidence of opinion about matters of common knowledge and about ultimate issues should be abolished (para 743; Draft Bill, cl 69).
14. Admissions and Confessions. An ‘admission’ should be defined as an out-of-court representation by a party which is adverse to that party’s interests in the outcome of the proceedings (para 755; Draft Bill, cl 3, definition of ‘admission’). The hearsay and opinion rules should not prevent the admission or use of evidence of an admission (para 755; Draft Bill, cl 70(1)). The fact that a person made an admission in one legal capacity and is, sued in another the legal capacity in the proceedings in question should not affect the admissibility of evidence of the admission in those proceedings (para 755; Draft Bill, cl 3, definition of ‘admission’). Representations connected with and made contemporaneously with or partly before or after the admission should also be admissible as part of the admission (para 755; Draft Bill, cl 70(1)(b)). A representation by a third party should be taken as an admission by a party if:
(a) there is authority from the party to speak on the matter;
(b) the person who made the statement purported or appeared to be an agent or employee of the party and purported or appeared to have authority within the area to which the statement related; or
(c) the representation was made to further a purpose shared by the person and party (para 755; Draft Bill, cl 74).
15. Some restrictions should be imposed:
(a) Violence and Admissions. Evidence of an admission should not be admitted unless the court is satisfied that it was not influenced by violence to any person. (para 766; Draft Bill, cl 71).
(b) Use Against Co-parties. An admission, and the statement of which it forms part, should not be admissible against a co-party (para 755; Draft Bill, cl 70(2)), but a co-party should be able to use an admission that is already in evidence, subject to the limitation that statements connected to the admissions should also be admissible in relation to the co-party’s case, even though they may be unfavourable to the co-party (para 755; Draft Bill, cl 70(2)-(3)).
16. In addition the following special rules should apply for criminal trials:
(a) Silence of Accused. It should not be permissible to draw inferences from the silence of the accused in response to questioning by anyone whose duties include law enforcement, but the court should not be prevented from drawing negative inferences from the failure of the accused to tell the police of an alibi or defence later advanced at the trial (para 758; Draft Bill, cl 76).
(b) Reliability and the Admission of Evidence. The proposals in the Commission’s earlier report, Criminal Investigation (ALRC 2), should be implemented as the minimum standard to be adopted in the investigation of criminal investigation (para 760). Consistent with these, as already stated, evidence of an admission should be excluded where influenced by violence to any person (para 766; Draft Bill, cl 71). In addition, there should be two rules to be satisfied before evidence of an admission should be admitted:
(i) Reliability of Evidence of Making. To ensure that reliable evidence of the making of an admission is available, evidence of admissions made in the course of questioning by law enforcement agencies should be inadmissible unless a recording is made available to the court, an appropriate third person was present or neither of these options was reasonably practicable (para 768; Draft Bill, cl 72(2)-(3)).
(ii) Circumstances of Making. The court should have to be satisfied on the balance of probabilities that the admission was made in circumstances that were not likely to affect its truth adversely, taking into account all the circumstances, including the characteristics of the person making the admission (para 765-6; Draft Bill, cl 72(4)-(5)). It should be presumed that this test is satisfied if the admission was made during police questioning, in the presence of the accused’s lawyer and after the usual warning, or if it is accepted by the accused as true in the trial (para 766; Draft Bill, cl 72(6)). The written record of an admission should only be admissible as evidence of the admission if it is adopted by the party signing it or acknowledging it in writing (para 769; Draft Bill, cl 73).
17. Evidence of Previous Court Decisions: The Rule in Hollington v Hewthorn. Evidence of court decisions in previous cases, including acquittals, should not be admissible as evidence of the facts on which the decisions were based (para 772, 3; 781-2; Draft Bill, cl 77(1)). However, evidence of a conviction (including by jury, before a plea, and convictions by Courts Martial and Defence Force magistrates under the Defence Force Discipline Act 1982 (Cth), when that Act comes into force) should not be excluded by this rule if tendered against the person convicted or those claiming through him in civil proceedings, provided the conviction is still operative (para 772-3; Draft Bill, cl 78(2)). The law relating to the admissibility and effect of evidence of a conviction tendered in defamation proceedings and of judgments in rem should be specifically preserved (para 783; Draft Bill, cl 79). The only exception for civil judgments should be for grants of probate and letters of administration (para 782; Draft Bill, cl 78(1)). The operation of judgments in rem leg divorce decrees) is not affected. Proposals to protect parties against whom the evidence is led are set out below (para 28).
18. Evidence of Character and Conduct. There should be rules regulating the admission of evidence of a person’s character or past conduct. The rules should not prevent the admission of such evidence where the character or past conduct is directly in issue (para 786-8; Draft Bill, cl 81(2)).
(a) Credibility. With the exceptions outlined below, the admission of evidence as to credibility of witnesses and parties should be prevented (para 819; Draft Bill, cl 82).
(i) Cross-examination on Credibility. Cross-examination on credibility should be permitted but substantial probative value on the question of credibility should be required for admission of evidence so obtained (para 819; Draft Bill, cl 83(2)). There should be additional protections for the accused in a criminal trial. Leave should be required. It should not be given unless the accused’s own evidence has attacked the credibility of a prosecution witness (para 822; Draft Bill, cl 84(5)). Evidence of conduct in the events the subject of the prosecution or in the investigation of those events should not be treated as such an attack (para 822; Draft Bill, cl 84(6)). A co-accused should not be permitted to cross-examine another accused who has not given evidence against him or her (para 822; Draft Bill, cl 84(2)). The prosecution should not require leave where the cross-examination relates to bias, motive to be untruthful, physical or mental condition or prior inconsistent statements (para 822; Draft Bill, cl 84(4)).
(ii) Adducing Credibility Evidence. Parties should not be able to adduce evidence about the credibility of a witness through other witnesses unless the substance has been denied by that former witness in cross-examination and leave is obtained (para 819; Draft Bill, cl 85). The evidence that may be adduced should be limited to evidence showing that a witness:
― is biased, had a motive to be untruthful, lacked the opportunity to observe the relevant event, was subject to a mental or physical incapacity or made a prior inconsistent statement; or
― has knowingly or recklessly made a false representation while under a legal obligation to tell the truth, (para 819; Draft Bill, cl 85). The party against whom such evidence is led should be entitled to rebut it (para 819; Draft Bill, cl 88). Finally, evidence as to the credibility of the maker of a representation who has not given evidence should be admissible to the same extent as it would be if adduced in cross examination of the maker of the representation (para 721; Draft Bill, cl 87).
(b) Character. Generally evidence of a person’s character should not be admissible (para 801; cl 94). The accused in a criminal trial, however, should continue to be able to adduce evidence of his good reputation to show that his character is inconsistent with commission of the offence charged. Further, the witnesses giving such evidence should be able to give:
(i) evidence of the basis upon which the witnesses express their opinions;
(ii) expert evidence of the accused’s character (subject to the opinion rule) (para 802-4; Draft Bill, cl 95(1)).
The prosecution should be entitled to rebut such evidence, confined to the particular aspect of character to which it relates (para 803; Draft Bill, cl 95(2)). A co-accused should be able to lead expert opinion evidence against other co-accuseds (para 805; Draft Bill, cl 95(3)).
(c) Evidence of Prior Conduct. Evidence of specific conduct should not be admissible to prove a person’s tendencies unless the court is satisfied that the person actually did the conduct to which the evidence relates and the conduct and circumstances to which the evidence relates and the conduct and circumstances in issue are substantially and relevantly similar (para 809; Draft Bill, cl 91 ). A rule to like effect should apply where such. evidence is led on the basis that because the event to which the evidence relates is so similar to the events in issue, it is improbable that they both occurred by coincidence (para 809; Draft Bill, cl 92). The standard of proof should be that the court be satisfied that a reasonable jury could so find.
Two further protections should be available to an accused in a criminal trial: it should be required that such evidence led against an accused by either the prosecution or a co-accused have substantial probative value and the issue to which the evidence relates should be in dispute (para 810-11; Draft Bill, cl 93(2)).
19. Identification Evidence. ‘Identification evidence’ should be defined to include both evidence by the eye-witness of an identification and reports by a third person of an identification made by an eye-witness (para 830; Draft Bill, cl 3, definition of ‘identification evidence’).
(a) Identification Parade. Because of its unreliability, eye-witness identification evidence should not be admissible in criminal proceedings unless an identification parade has been held or it was not reasonable to hold an identification parade (para 830-4; Draft Bill, cl 97). Whether an identification parade is reasonable will depend on when it could be held and the availability of appropriate people. It should be held to be not reasonable to hold an identification parade where, for example, the suspect refuses to co-operate, unless the refusal is based on the suspect’s desire to have his or her lawyer present (para 833; Draft Bill, cl 99, 100). If it was not reasonably practicable for a lawyer to be present, however, other identification evidence should not be excluded (para 833; Draft Bill, cl 99).
(b) Use of Police Photographs. Evidence of identification by police photographs, if adduced by the prosecution, should not be admissible unless the photographs used included those of people without criminal records or the photograph of the accused was one taken after he or she was taken into custody (para 837-9; Draft Bill, cl 98(2)-(3)). Where the suspect was in the custody of police, identification evidence based on police photographs should not be admissible unless an identification parade was held beforehand or it would not have been reasonable to hold such a parade (para 838; Draft Bill, cl 98(4)) The same regime should apply to identification by ‘Identikit’ and like pictures (para 838; Draft Bill, cl 98(5)).
(c) Directions to Juries. The judge should, on request of the accused, warn the jury of the need for caution in acting on eye-witness identification evidence (para 840-3; Draft Bill, cl 101). In particular, the jury should be warned not to find that the defendant committed the relevant offence on the basis of identification evidence unless there are special circumstances in relation to the identification or other substantial evidence (not being identification evidence) implicating the accused. In the absence of such evidence, the court should direct an acquittal (para 843; Draft Bill, cl 101(2)-(4)). Unrepresented accuseds should be advised of their rights (para 843; Draft Bill, cl 101(5)).
20. Privilege. The court should have a general discretion to protect communications and records made in circumstances where one of the parties is under an obligation (whether legal, ethical or moral) not to disclose them. This should apply to such relationships as cleric and communicant, doctor and patient, psychotherapist and patient, social worker and client and journalists and their sources (para 909; 917; 932-1; 939-41; 947; 954; 955-6; Draft Bill, cl 103). Matters to be taken into account in exercising this discretion should include the need for the evidence, the damage which would occur to the particular relationship by the enforced disclosure of confidential communications and the deterrent effect on similar relationships. In addition, rules dealing with specific privileges should be included:
(a) Privilege Against Self-incrimination. A witness should be able to object to answering a question on the ground that the answer may tend to show that the witness has committed an offence or is liable to a civil penalty. The protection should not extend to questions incriminating the spouse of the witness (para 862) No distinction should be drawn between oral and documentary evidence. If there are reasonable grounds for the claim of privilege, the court should advise the witness that he or she does not have to answer the question but that, if the witness answers the question, the court will give a certificate which will prevent the answer being used against the witness in any future proceedings (other than for perjury in respect of the answer) (para 861-2; Draft Bill, cl 104(1)-(2)). Where such an objection has been overruled, the court should still be able to give such a certificate if it appears subsequently that there were reasonable grounds for the objection (para 862; Draft Bill, cl 104(3)). No adverse inference should be drawn from the fact that privilege is claimed (para 862).
(b) Client Legal Privilege. On objection by or on behalf of the client concerned, the court should be required to prevent the giving of evidence of the contents of confidential communications, and the contents of documents, in the following circumstances:
(i) Communications for advice. Communications between lawyer and client (and between lawyers engaged by the same client), made for the dominant purpose of providing legal advice to the client (para 879-80; Draft Bill, cl 105(1)). The lawyer’s normal obligation to claim the privilege on behalf of the client in the absence of instructions to waive it should not be disturbed (para 883).
(ii) Communications for Litigation. Communications between lawyer or client and a third party (including the client’s employees and agents), made for the dominant purpose of providing or receiving legal services in connection with pending or anticipated litigation (para 879-82; Draft Bill, cl 105(2)) Similar provisions should apply in relation to the unrepresented litigant (para 883; Draft Bill, cl 105(3)).
(iii) Documents, &c. The protection should extend to documents (for example, notes, memoranda, opinions and advices of the lawyer and records of communications) prepared for the same purposes (para 883; Draft Bill, cl 105(1)(b); ((2)(b)).
The privilege will apply to communications to the prosecution where a client/legal adviser relationship is shown to exist (para 886). The privilege should operate indefinitely (para 883), and should be able to be claimed or waived by the successor to the client’s rights and obligations in relation to which the privileged communication was made or document created (para 880, 883; Draft Bill, cl 102, definition of ‘client’). The privilege should not apply to facts or things actually observed by the lawyer unless to give that evidence would involve disclosure of privileged material (para 884). In an action between clients of the same lawyer, it should not apply to prevent the giving of evidence of communications and documents related to the matter on which the lawyer was consulted by them (para 884; Draft Bill, cl 106(9)).
Apart from consent (para 885; Draft Bill, cl 106(1)), the privilege should be lost if the client voluntarily discloses the substance of the communications or documents (para 885; Draft Bill, cl 106(6)(8)) unless the disclosure was to a co-client for the purpose of obtaining or continuing legal assistance, was obtained by duress or deception or compelled in error (para 885; Draft Bill, cl 106(6), (9)). It should not protect communications or documents prepared in furtherance of a crime or fraud, prevent a court from enforcing an order of a court or result in the withholding of evidence relevant to the defence of an accused (para 885; Draft Bill, cl 106(3)-(4), (10)-(11)). The privilege should not be lost simply because evidence of the communication or material was disclosed accidentally or obtained illegally (para 885).
21. Evidence Excluded in the Public Interest
(a) Matters of State. The court should be under a duty to prevent the giving of evidence about matters of State if the public interest in admitting the evidence would outweigh the public interest in preserving secrecy and confidentiality in relation to it. This power should be capable of preventing the giving of information relating to, for example; the security and safety of the realm, international relations, the prevention and detection of crime, the efficient running of government and the identity of informers (para 864-6; Draft Bill, cl 110). Specific guidelines should be prescribed for the exercise of this discretion (para 864-6; Draft Bill, cl 110(3)).
(b) Reasons for Decision of Judge, Jury or Arbitrator. The court should be under a duty to prohibit the giving of evidence of the deliberations, or reasons for decisions of judges, jurors and arbitrators. This should not apply in prosecutions for offences arising under the Crimes Act 1914, Pt III (para 876; Draft Bill, cl 109).
(c) Settlement Negotiations. The court should be under an obligation to prevent the giving of evidence of communications made in an attempt to settle a civil dispute (including where a party’s agent or a mediator is involved) (para 891-4; Draft Bill, cl 111). This should not extend to criminal or tortious communications, communications capable of affecting rights and liabilities and communications relating to issues that have been settled (para 891-4; Draft Bill, cl 111(2)(e)-(g)). Similarly, the protection should not be available where all parties to the dispute consent or where reliance on it would enable a party to deceive a court about the course of an attempt to settle the dispute (para 891-2; Draft Bill, cl 111(2)(d)). A party who discloses the whole or part of the negotiations in another action should also lose its protection if the other party to the negotiation consents (para 892; Draft Bill, cl 111(2)(a), (c)).
The court should be under a duty to satisfy itself that witnesses are aware of their rights in relation to privileges (para 850, 862; Draft Bill, cl 107, 112).
22. Discretions to Exclude. The fairness discretion (‘Lee’ discretion) should not be retained (para 967). However, in addition to the exclusionary rules outlined above, two discretions should be included enabling the trial judge to exclude evidence even if otherwise relevant:
(a) Probative Value and Prejudice Discretion. In criminal trials, the court should be able to exclude prosecution evidence that is more prejudicial than probative (para 957; Draft Bill, cl 115);
(b) Improperly Obtained Evidence. The court should exclude evidence obtained illegally or improperly unless the desirability of admitting the evidence substantially outweighs the undesirability of admitting evidence that has been obtained in the manner in which the evidence was obtained. Matters the court should take into account are identified. The discretion should also apply to evidence obtained in consequence of improperly obtained evidence (para 966; Draft Bill, cl 116). Special provision should be made in relation to evidence of admissions in criminal proceedings. Where the admission was obtained in the course of police or other official questioning, it should be regarded as having been improperly obtained where the questioner knew or ought to have known that his or her acts were likely to impair substantially the ability of the person questioned to respond rationally to questions or where the questioner made a false statement likely to cause that person to make an admission (para 965; Draft Bill, cl 116(2)).
23. Judicial Notice. Formal proof should not be required of ‘matters of law’, that is, the content and operation of the common law, Australian statutes and Australian delegated legislation published or notified in a Government Gazette (para 970-3; Draft Bill, cl 117). Formal proof should not be required about knowledge that is not reasonably open to dispute and is common knowledge in the locality where the proceeding is being held or is knowledge which is capable of verification by documentary sources the authority of which cannot reasonably be questioned (para 970-2; 974-8; Draft Bill, cl 118). In each case, judges should be able to inform themselves about these matters as they see fit (para 977; Draft Bill, cl 117(2), 118(2)). Both the judge and the jury should be required to take this kind of knowledge into account (para 977; Draft Bill, cl 118(3)). Judges should be required to inform the parties where there is a risk that making their own enquiries to acquire either category of knowledge will cause unfair prejudice (para 977; Draft Bill, cl 118(4)). Parties should still be able to lead formal evidence on these matters (para 977). Special provision should be made to preserve the effect of Crown certificates in matters of international affairs (para 977; Draft Bill, cl 119).
24. Facilitation of Proof. A number of specific reforms should be enacted to facilitate proof of matters. These should be in addition to other methods of proof such as those provided by the State and Territorial Laws and Records Recognition Act 1901 (para 993).
(a) Authentication and Identification. Where the relevance of evidence depends upon the court making a finding as to the authenticity of that evidence, the court should be able to admit the evidence if satisfied that it would be reasonably open to a jury to find that the evidence is what its proponent claims it to be (para 646; 982-4; Draft Bill, cl 45). In determining the authenticity of a document or thing, the court should be able to examine it and draw inferences from it (para 985-6; Draft Bill, cl 135).
(b) Evidence Produced by Devices etc. Where it is reasonably open to find that a device or process (for example, cheque sorting equipment) is of a kind that, properly used, does what is claimed for it (for example, on the basis of evidence of general reliability and trustworthiness) it should be presumed that the particular device did what the party claimed it did on the occasion in question. Such a finding should operate both at the stage of admission of evidence and at the conclusion of the proceedings (para 988-9; Draft Bill, cl 120).
(c) Business Records. In the case of statements reproducing or derived from information from a device, it should, prima facie, not be necessary to prove the working accuracy of the device if the court is satisfied, on the balance of probabilities, that the device is used for the purposes of a business (para 989; Draft Bill, cl 120(3)).
(c) Other provisions. There should be the following presumptions.
(i) the authenticity of Government Gazettes and documents published by the Government Printer;
(ii) regularity in respect of acts notified in such documents;
(iii) the authenticity and validity of official seals and signatures;
(iv) the authenticity of documents purporting to be copies of public documents;
(v) the authenticity, and due execution or attestation, of documents more than 20 years old produced from proper custody;
(vi) the ownership or origins of objects and things as stated in tags and labels attached to objects or things;
(vii) the due receipt and transmission of telecommunications;
(viii) the receipt of mail within four working days after posting; and
(ix) the authenticity of statistics purporting to be published by the Australian Bureau of Statistics or the Australian Statistician (para 993; Draft Bill, cl 121-8).
It should be possible to provide evidence in affidavit form to prove facts required to bring these provisions into operation (para 991; Draft Bill, cl 136). Proposals to protect parties against whom evidence is led are set out below (para 28). Evidence of attesting witnesses to documents (other than wills) should not be required to authenticate the documents (para 993; cl 121).
25 Standard of Proof. For civil trials, the standard of proof for all parties should be satisfaction on the balance of probabilities (para 998-9; Draft Bill, cl 129). In determining whether the court is so satisfied, it should be required to have regard to the nature of the cause of action or subject-matter (para 999; Draft Bill, cl 131). In criminal trials, the standard of proof for the prosecution should be satisfaction beyond reasonable doubt (para 1000; Draft Bill, cl 132). For the defence in criminal trials, the standard should be the civil standard (para 1000; Draft Bill, cl 129). For both civil and criminal trials, where the admissibility of evidence depends upon the proof of facts, the standard of proof should, unless special provision is elsewhere made, be the civil standard having regard to the importance of the evidence sought to be admitted (para 1006; Draft Bill, cl 130).
26. Corroboration. The existing requirements of law and practice requiring corroboration should be abolished except in relation to perjury and as specifically required by statute (para 1015-6; Draft Bill, cl 133). Instead, for specified categories of evidence which experience has shown can be unreliable there should be an obligation, unless there is good reason not to do so, to give a warning about unreliability if a party so requires and if the judge is satisfied that the evidence may be unreliable (para 1017-20; Draft Bill, cl 134).
27. Discovery. A full-scale review of discovery is outside the Commission’s Reference (para 715-8). Nevertheless, to complement a number of the preceding recommendations, especially those relating to hearsay, secondary evidence of documents and the authentication of documents, reform of the rules providing for discovery of documents and things is necessary (para 658, 715, 992). There should be special provisions for discovery, in addition to those that already exist under Rules of Court. For discovery purposes, ‘documents’ should include all kinds of information-storing media, such as tapes, disks and microfilm (para 658, 716; Draft Bill, cl 3, definition of ‘document’; cl 143).
28. Production of Witnesses and Documents. The party against whom documentary evidence is to be led should be entitled, on reasonable request, to examine the record-keeping system concerned and to be provided with everything necessary to understand and test that system and the method of producing (or reproducing) the document led. In addition, a procedure is required to enable a party to have relevant witnesses to be called for cross-examination. It should apply in criminal as well as civil trials and to the prosecution as well as to the defence (para 651, 8; 717; 779; 992; 1024; cl 137). In civil proceedings, costs should be in the discretion of the court (Draft Bill, cl 137(2)) to avoid tactical abuse of the rights given.
29. Views, demonstrations and experiments should be treated as evidence (para 1028; Draft Bill, cl 139). The court should be able to permit inspections, experiments and demonstrations, but only if the parties and their counsel are given an opportunity to attend, and the judge, and jury (if any) will be present (para 1029-30; Draft Bill, cl 138). The jury should not carry out experiments and the trial judge should so direct them (para 1031); Draft Bill, cl 138(4)).
30. Voir Dire. The determination of questions of fact upon which the admissibility of evidence, or the competence or compellability of witnesses, depends, should be made by the trial judge. This should be so even where the fact is also a fact in issue (para 1032-4, cl 140). It should be a matter for the trial judge whether the jury should be present while such questions are determined but, in general, the jury should be excluded where questions arise as to the admissibility of evidence of admissions or evidence allegedly obtained illegally or improperly (para 1035, cl 140).
If the jury was present during the voir dire, evidence adduced in the voir dire should be able to be used in the trial proper, subject to the exclusionary rules, without the need to repeat it. If the jury was not present, evidence about evidence given on the voir dire should not be given unless inconsistent with the witness’ later evidence (para 1040, 1, cl 140(6)). The rules of admissibility should apply to hearings as to the admissibility of evidence (although in civil cases there should be the power to dispense with the rules) (para 1036; cl 140(5)). In a criminal trial, the prosecution in a voir dire concerning the question whether an admission was made in circumstances likely to affect its truth adversely should be able to ask an accused giving evidence whether the admission is true. The accused, however, should retain the privilege against self-incrimination (para 1040). The accused should retain the right to make an unsworn statement in a voir dire and should be able to make an unsworn statement in the hearing proper notwithstanding that he has given sworn evidence on the voir dire (para 1046; Draft Bill, cl 140(7)).
31. Dispensing with Rules. If the parties in criminal proceedings consent, the court should be able to dispense with the application of any of the rules of evidence, but the court should be satisfied that an unrepresented defendant understands the consequences of giving consent. In civil proceedings, the court should be able to order that the rules not apply to evidence if the matter to which it relates is not genuinely in dispute or undue expense or delay would be caused if they were applied (para 1025, 6; Draft Bill, cl 141).
1. The Task. The Law Reform Commission is asked:
TO REVIEW the laws of evidence applicable in proceedings in federal courts and the courts of the territories with a view to producing a wholly comprehensive law of evidence based on concepts appropriate to current conditions and anticipated requirements AND TO REPORT:
(a) whether there should be uniformity, and if so to what extent, in the laws of evidence used in those courts; and
(b) the appropriate legislative means of reforming the laws of evidence and of allowing for future change in individual jurisdictions should this be necessary.
2. The Courts. The courts referred to in the Terms of Reference are:
• Federal Courts. The relevant courts are the High Court of Australia, the Federal Court of Australia, and the Family Court of Australia. Federal courts, in the absence of contrary Commonwealth laws, apply the laws of evidence of the State or Territory in which they happen to be sitting. This is the result of s 79 and s 80 of the Judiciary Act 1903.[1] Thus the review of the laws of evidence to be undertaken by the Commission involves a consideration of the laws of evidence of all States, the Territories and the Northern Territory as applied in federal courts. The Terms of Reference do not require the Commission to consider the laws of evidence applied in State and Territory Courts exercising federal jurisdiction or to consider the laws of evidence in the context of tribunals, commissions or Royal Commissions. The work of the federal courts varies. Although the High Court’s trial work has been substantially reduced since the Judiciary Amendment Act 1976, it still hears some cases involving the taking of evidence and the application of the laws of evidence. The Federal Court’s trial jurisdiction is varied and covers both civil and criminal work in a wide range of matters including trade practices, bankruptcy and industrial relations. The Family Court’s jurisdiction includes divorce proceedings, custody proceedings, and proceedings for maintenance and property distribution and injunctions. From time to time contempt proceedings (which are of a criminal nature) are brought in the Family Court against persons who are alleged to have failed to comply with its orders.
• Territory Courts. The relevant Territory courts are the Supreme Courts and the Courts of Petty Sessions of the Australian Capital Territory, Norfolk Island, and Christmas Island and Cocos (Keeling) Islands. Both the Supreme Courts and Courts of Petty Sessions are vested with jurisdictions which cover civil and criminal matters of the widest variety.
3. The Laws of Evidence. In broad terms, the laws of evidence regulate who may give evidence and who may be required to do so, the manner in which evidence is given, what evidence may be received or excluded, how evidence is to be handled and considered once received, and what conclusions shall or may be drawn from it. They also specify the strength of a party’s case that is required before that party can succeed.[2] The laws of evidence began to develop in the late 17th Century and early 18th Century. Views differ as to the causes of their development. The better view appears to be that key factors were the increasing involvement of lawyers in trials and the changes in the role of the jury from a group of people familiar with the facts, who decided the case on their own knowledge, to a body of people with no such knowledge who decided the case on evidence placed before them.[3]
4. Changes in Federal Courts. The reference is timely. The Judiciary Act solution of applying the laws of evidence in the State or Territory in which a federal court is sitting may have been reasonably satisfactory when the only federal court was the High Court, a court whose major role has been an appellate one—in the course of which evidence is rarely given.[4] The creation of two new federal courts—the Family Court and the Federal Court—each having a substantial and increasing volume of trial litigation and each administering national laws has made it important to consider the suitability of that approach. For example, is it satisfactory to have a system under which the outcome of a case under a federal law could depend on the State in which the trial takes place?
5. Changes in Society. Society has changed and developed considerably since the earlier centuries when our laws of evidence were developed by the courts. The laws we have inherited reflect a society in which communications were face to face or by letter, accounts and records were kept, copied and maintained by few individuals and few machines or devices produced evidence. It was appropriate to require direct evidence—for example, evidence of eyewitnesses to the exclusion of hearsay, authentication of letters by those who wrote them and copy documents by the person who copied them, production of original documents and not copies—and to require detailed evidence as to the `trustworthiness’ of any machine that produced the evidence.
6. To require such evidence need not, in a simpler society, add to the cost of the litigation. Today, however—with the extreme division of labour; with the clerk on the stool replaced by the computer; the hand copying of documents replaced by automatic machine copying, microfilm and optical discs; communications made by telephone, telex, telefacsimile, computer to computer and via satellite; and sophisticated machinery and devices which will produce evidence by reading and sorting cheques, or carrying out scientific analyses—it is appropriate to examine critically the laws of evidence. This is not to say that attempts have not been made to update the laws of evidence. Legislation was enacted in most jurisdictions modelled on 1938 English legislation designed to overcome obstacles in the way of admitting records. More recently in the 1960s and 1970s legislation was enacted dealing with the proof and admissibility of evidence stored on microfilm and computer. Generally such legislation has proved unsatisfactory.[5] One reason is that it was enacted in response to a particular problem. At no time was an attempt made to deal with the issues in a systematic fashion. This reference provides that opportunity.
7. Changes in other areas have occurred. It is commonly thought that the numbers of people who hold religious beliefs has been declining for some time. Should the religious oath, which may have been appropriate for an 18th century English community, be retained? Is it practical to retain a religious oath in our multicultural society? The `de facto’ relationship has assumed a significance in our society—should the rules which exempt one spouse from giving evidence against the other extend to `de facto’ spouses? Should it extend to other relationships?
8. At a more general level, it is appropriate to review the assumptions of human psychology which underlie so many of our rules of evidence—the effect of the oath, the unreliability of hearsay, the refreshing of memory, the effect of knowing that a person is of bad character or good character, the nature of ‘character’, the processes involved in identifying a person. The rules of evidence developed before the study of psychology began or have been developed since with little or no regard to such study. The law should be examined in the light of psychological learning.
9. Cost and Time. A current issue of major concern is the time and cost of litigation.[6] The laws of evidence have an impact in this area. Strict adherence to rules such as `the best evidence’ rule requires production of the original document—rather than, say, a readily available microfilm copy regardless of its importance or whether it is disputed. The hearsay rule can be insisted upon to require the attendance of a witness to give direct evidence no matter how unimportant and costly this may be.[7] A witness must be called to authenticate a document. The court may not, initially draw any inferences about its authenticity by examining it. The same applies to proving a document as a copy of another document-even though it may plainly be a photocopy. Witnesses must attend court to give evidence of formal matters, or of the functioning of systems and machines that have produced evidence regardless of the importance of the evidence or whether there is any real dispute.
10. Courts cannot inform themselves from recognised reliable sources such as street directories or authoritative texts. Time and costs are wasted on extensive cross-examination which is allegedly relevant to the credibility of a witness but which psychological research shows is not. In most jurisdictions, evidence of a conviction is not admissible in a subsequent civil case arising out of the same facts, obliging the court to conduct a second hearing. The effect of the rules of evidence on the time and cost of litigation is a major issue in the reference. It is an issue in respect of which any proposals for reform must be judged. It involves a weighing of benefits that may flow from a particular rule—for example, enhancing the quality of the evidence, preserving confidences or minimising the risk of wrongful conviction—against the cost.
11. Continuation of the Trial System. The terms of reference assume the continuation of our adversary trial system. They do not require or authorise the Commission to investigate or recommend changes to the trial system except where such changes are necessary to meet problems existing in the application of the laws of evidence.[8] Changes to the nature and objectives of the civil and criminal trial are otherwise outside the terms of reference. The issues, however, were considered by the Commission in the course of forming its views on the scope of the reference.[9]. While detailed analysis is inappropriate[10] there is value in referring to two important features of our criminal trial system, its accusatorial nature and the balance struck in criminal trials in favour of the accused.
12. Change to the criminal trial has been the subject of vigorous debate.[11] An argument for change has been that there is a growing class of professional criminals who have become more sophisticated and are escaping conviction in greater numbers. It is argued that the criminal trial system must be changed to meet this problem. Empirical research has proved to be difficult—how, for example, do you define the class of `professional criminal’? Do you rely on the criminal record or do you ask the police to identify those whom they regard as coming within the class? As a result this argument has yet to be substantiated. At a more general level it is argued that there are too many acquittals and that this is in part a result of the evidentiary law hurdles placed in the path of the police. An examination of available statistics reveals figures which vary considerably.[12] For example a Victorian study revealed between 10.8% and 16.5% of all persons charged are acquitted and, of those who contest the proceedings between 41.2% and 50.6% are acquitted.[13] It is said that the latter figures are too high.
13. The acquittal rate however, may be influenced by many factors. It may be influenced by:
• the complexity of some areas of sophisticated crime, especially corporate crime;
• the availability and quality of legal representation;
• the quality, experience and approach of the trial judge or magistrate;
• the skills of the police and prosecution;[14]
• the extent of plea bargaining;
• the extent to which charges are included against a particular accused for tactical reasons to be abandoned or to be withdrawn on obtaining the plea of guilty or conviction for one or more of the charges.[15]
In English studies the explanation given for most acquittals has been weaknesses in the prosecution case.[16]
14. It can be argued that such rates are not too high. In criminal trials we require proof beyond reasonable doubt—both as to the commission of the crime and as to the intent with which it was done. This standard of proof is a heavy one. In these circumstances it can be argued that the acquittal figures support the view that the system is working in accordance with its aims. It is certainly difficult to argue that there are too many acquittals. In addition, acquittal rates cannot be assessed without examining the other side of the coin—possible wrongful convictions. Here the data available give cause for concern.[17]
15. Traditionally, the criminal trial has been seen as an accusatorial proceeding in which the accused is regarded as innocent until proved guilty. It has also been seen to reflect the proposition that it is in the interests of the community that the risks of wrongful conviction be minimised. This traditional view of the criminal trial is of long standing. Many of the rules governing the admissibility of evidence and the burden and standard of proof reflect it. It has been said that:
Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt ... No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.[18]
The rules also perform a vital role in the protection of our liberties. The Royal Commission on Criminal Procedure referred to the argument
that basically an individual’s rights in the criminal process had to be related to an understanding of what the individual’s relationship to government ought to be in a free, democratic society, and that each step in the criminal process, pre-trial and trial, including the right of silence, must be judged not as a means to the goal of achieving a reliable verdict, but also, and equally important, for its coherence with a liberal understanding of how free persons, including suspects in the police station, at all stages ought to be treated.[19]
A clear and strong case needs to be made out before any change is made in our traditional view of the trial. In the Commission’s view such a case has not been shown.
16. Continuation of Laws of Evidence. Another underlying assumption of the terms of reference is the continued existence of laws of evidence. In this regard the reference contrasts with the trend of setting up administrative tribunals on the basis that they are not to be bound by the ‘rules of evidence’.[20] These tribunals often proceed on an adversary trial basis. Should a similar approach be taken with trials in our formal court system?[21]
17. The trend of dispensing with rules of evidence before tribunals reflects dissatisfaction with the rules of evidence—in particular their rigidity and technicality and the cost they can cause.[22] It does not necessarily mean, however, that appropriate rules of evidence would not be preferable. In addition, there are sometimes other reasons for dispensing with the rules of evidence. The issue before such tribunals often concerns an appropriate administrative decision. There is much to be said for the tribunal approaching the issue like an administrator. Also the dispensation from the rules of evidence may reflect a desire to create an inquiry procedure rather than an adversary procedure—which may be indicated, for example, by the formula ‘the tribunal shall inform itself in such manner as it thinks fit’.[23]
18. It should not be assumed that these approaches are satisfactory. We often find tribunals which are not bound by the rules of evidence referring to them for guidance on the admission and handling of evidence. This cannot be explained solely on the basis that there are legally trained people involved. All tribunals have to develop an order for proceedings. All tribunals will properly attempt to limit themselves to relevant material. Further, the exclusionary rules, for all their deficiencies, attempt to ensure that time is not wasted on peripheral matters or on evidence[24] not worth considering or which may create more problems than it is worth. In their insistence on direct and original evidence they also help the system to provide a fair hearing—the party against whom the evidence is led can test and examine that evidence. A person confronted in a tribunal not bound by the rules of evidence with significant hearsay evidence of which no notice is given and which cannot be tested is likely to experience a strong feeling of dissatisfaction. Considerable time can be wasted also by the presentation of evidence such as opinion evidence by persons lacking expertise sufficient to satisfy the rules relating to expert evidence.[25] It is not surprising that tribunals ~will turn to the rules of evidence for guidance. Thus RK Todd, a Deputy President of the Administrative Appeals Tribunal, commented:
the principles of relevance, of first hand knowledge and of confinement of technical and opinion evidence to experts are, I suggest, principles which in appropriate cases will guide the Tribunal in a method of proof on which it should insist’.[26]
Professor Campbell has made the point that there is nothing ‘inherently wrong in the law of evidence being used in this way, so long as the use which is made of it is discriminating and is attentive to the rationale for particular rules.[27] Justice HV Evatt went further:
No tribunal can, without grave danger of injustice, set them [the laws of evidence] on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence. as such. do not bind, every attempt must be made to administer ‘substantial justice’.[28]
Even if it were open to the Commission under the terms of reference, it would not be appropriate simply to abolish the rules of evidence because courts, like tribunals, must have the means of controlling proceedings if only to ensure that they do not become too protracted. In the absence of rules, practices would develop which, under the pressures of an adversary system, would themselves develop into rules and those rules would ossify, as happened in the development of the laws of evidence.[29] Further, the absence of rules would create doubts and difficulties in preparing for hearings. A body of rules, provided it is satisfactory, can expedite hearings—because inadmissible evidence would not be offered and arguments would be reduced—and enhance the quality of the result and procedural fairness. Such rules should guide the court in its handling of evidence. The Commission believes that the deficiencies in the law can be satisfactorily addressed. The acid test is to formulate proposals.
19. Review. The Commission’s first task was to review the laws of evidence applicable in the courts referred to above. In conducting the review the Commission has carried out the following research projects:
(a) Comparison of Laws. The Commission published two Research Papers which collect and compare the laws of evidence, both statutory and common law, applying in the States and the Territories.[30]
(b) Collecting Data. The Commission obtained data about the extent and nature of the trial work handled by the Federal Court and the Family Court in the States and Territories in which they sit, the transfer of proceedings in those courts from one State and Territory to another, and the use of jury trials and information from jury lists about the occupations of jurors in the ACT. The data generously extracted and supplied to us by the courts as to the extent and nature of their work did not raise any specific issues relevant to the reference and is summarised in general terms above. It did indicate, however, that few proceedings in federal courts have been transferred from one State or Territory to another. The data on ACT jurors was sought because of the argument often put that the laws of evidence are needed to keep from juries evidence that they may mis-use in reaching their verdicts.[31] The capacities of jurors are questioned by this argument. The data extracted and supplied by the ACT Supreme Court revealed a wide range of occupations but it was found that it was not possible to make valid comparisons with occupations throughout the Australian community. More detailed information than is available would be needed, in any event, to enable any sound judgment to be made as to the capacities of ACT jurors. Further, the argument is of doubtful validity. It is considered below where the conclusion is expressed that no distinction should be drawn between jury and non-jury trials in formulating rules of evidence.[32]
(c) Psychological Assumptions. The Commission examined the assumptions about human behaviour upon which many of the rules are wholly or partly based. On this aspect, the Commission sought the assistance of psychologists and other interested persons. It has examined the extensive literature[33] in the Research Paper Series. This literature is referred to in the succeeding pages of this report.
(d) Aboriginal and Ethnic Issues. The Commission has sought information on whether the laws of evidence create special problems for Aboriginals and for members of migrant groups. The major issues raised which are of relevance to the laws of evidence relate to the compellability as witnesses of parties to Aboriginal traditional marriages,[34] the inability of many Aboriginals to do justice to themselves when giving evidence and the rules controlling the use of interpreters.[35]
(e) Technology. The Commission has examined whether the present laws of evidence are adequate for present computer and communications technology and for present and likely future technological developments.
(f) Federal Problems. The review program included an investigation of a number of problem areas:
• problems in the operation of s 79 and s 80 of the Judiciary Act 1903;
• practical problems created in the several federal and Territory courts by the laws of evidence under which they operate.
(g) Uniformity. Comment was sought on whether there should be a uniform Commonwealth law of evidence for federal and Territory courts.
(h) Basic Issues. The Commission sought comment on the following issues:
• the definition of the proper subject matter of the `laws of evidence’;
• the relationship between the laws of evidence and the nature and purposes of civil and criminal trials;
• the particular purposes which it may be said the laws of evidence serve and the extent to which they do so;
• the extent to which any particular purposes should be abandoned or modified;
• the purposes which should be served by the laws of evidence;
• the principles upon which any statutory statement or statements of the laws of evidence should be based.
20. To promote discussion of the above matters a Discussion Paper, No 16—Reform of Evidence Law 1980, was published. It was circulated to subscribers to the Australian Law Journal, and sent to judges, magistrates, police and relevant representative bodies. It was publicised in the media. In addition, an Issues Paper, discussing the basic issues referred to above was prepared by the Commission. A large number of written submissions were received[36] and discussions held with legal practitioners, judges and magistrates and other interested parties on both documents. In addition, approaches were made to State and Territory judges and bodies representing the legal profession to obtain comment on the operation of significant legislation unique to their State or Territory. The materials and information obtained have been used in the research papers referred to below and in the formulation of proposals in this report.
21. Consideration of the issues of uniformity and reform. On completion of the review program the Commission has proceeded to the second stage of the reference which involves consideration of the issues on which the Commission must report:
• whether there should be uniformity in the laws of evidence applied in the relevant courts and if so to what extent; and
• the appropriate legislative means of reforming the laws of evidence and of allowing for future changes in original jurisdictions should this be necessary.
The Commission notes that the Attorney-General and the Senate Standing Committee on Constitutional and Legal Affairs spelt out as a preferred objective the production of a wholly comprehensive law of evidence for the federal and Territory courts.[37]
22. To report on these issues the Commission must consider:
• the differences that exist in the laws of evidence in federal and Territory Courts and the arguments for and against comprehensive uniform laws;
• the areas where reform is required;
• the substance of proposals for reform that should be advanced;
• the most appropriate legislative or other means to achieve the desired reform.
The view was taken that the consideration of these issues required the production of a draft comprehensive evidence Act. Without such legislation it would not be possible properly to explore and reach any final view on the feasibility of uniform legislation or the appropriate substance and methods of reform.
23. The method used to produce the draft legislation[38] was to produce Research papers on particular topics. A total of fourteen such papers have been produced:
RP 3 Hearsay Evidence Proposal, 1981 (TH Smith)
RP 4 Secondary Evidence of Documents, 1981 (TH Smith)
RP 5 Competence and Compellability of Witnesses, 1981 (L Re and TH Smith)
RP 6 Sworn and Unsworn Evidence, 1982 (L Re and TH Smith)
RP 7 Relevance, 1982 (S Odgers)
RP 8 Manner of Giving Evidence, 1982 (L Re and TH Smith)
RP 9 Hearsay Law Reform—Which Approach, 1982 (Justice MD Kirby, IG Cunliffe, TH Smith)
RP 10 The Judge—Adducing Evidence and Judicial Notice, 1982 (L Re and TH Smith)
RP 11 Character and Conduct, 1983 (S Odgers)
RP 12 Identification Evidence, 1983 (L Re)
RP 13 Opinion Evidence, 1983 (I Freckelton)
RP 14 Aspects of Proof, 1983 (M Ball)
RP 15 Admissions and Confessions, 1983 (S Odgers)
RP 16 Privilege, 1983 (I Freckelton and TH Smith)
This report is developed from the research papers.[39]
24. The research papers were distributed to legal professional bodies, judges and magistrates of the relevant courts, the presiding judicial officers of State courts, academics involved in teaching evidence, a selection of State judges and retired judges, governmental lawyers, the police, practitioners and where appropriate, other interested persons and organisations. Many submissions were received and considered.[40] Reference is made in this report to some of the submissions. Of necessity the Commission has had to be selective and has generally referred only to points thought to be significant but not adopted in the proposals. In addition regular meetings were held with consultants to discuss the draft proposals. This has been most onerous but extremely valuable for the Commission.[41] The proposals were then revised in the light of the comments received and brought together into the one piece of legislation.[42] The Commission wishes to acknowledge the research assistance given by the New South Wales Law Reform Commission on the topic of privilege and the assistance given by Trevor Martin QC who considered and commented on an early draft of this report and the proposals. Special mention should also be made of the generous assistance given by the American Bar Association in producing an extensive review of the operation of the US Federal Rules of Evidence and the Federal Judicial Centre, Professor Stephen Salzburg and Judge Charles Joiner in organising the Conference on the Federal Rules of Evidence in 1983.[43]
25. Organization of Interim Report. In the remainder of this part, the Introduction, there are chapters dealing with two general issues:
Part 1, Ch 2. The question of defining the `laws of evidence’.
Part 1, Ch 3. The question of the purposes that are served and the purposes that should be served by the laws of evidence. A consideration of these issues is necessary before considering the need for reform and proposals for reform.
The remaining parts of the report address the specific issues on which the Commission is asked to report. The material comprises -
Part 2. A summary of the differences to be found in the laws of evidence applied in the relevant courts and arguments for and against uniform laws;
Part 3. An analysis of the deficiencies of the present laws of evidence and arguments on the need for reform;
Part 4. A commentary on the Commission’s proposals. Legislation is included in Appendix A. It will test the feasibility of uniform legislation, as well as the appropriate substance and means of reform. Where appropriate, alternative proposals are included. The commentary includes a discussion of the principles that have guided the formulation of the legislation.
26. Purpose of Interim Report. This report is an Interim Report. While it deals with all the issues in the reference which the Commission has identified, and follows extensive deliberation within the Commission and with the learned consultants on the reference, it does not represent the Commission’s concluded views. The extensive public consultation and consultation with special interest groups which the Commission conventionally conducts in references has not yet taken place. The Interim Report is intended to provide the focus for that consultation process. In particular, the Commission intends that the Interim Report should be used as a focus for discussion of the issues on which it is asked to report:
• should there be uniform and comprehensive laws of evidence for federal and Territory courts; and
• should the laws of evidence be reformed, and if so, in what manner.
The Commission has not attempted extensive formal empirical research at this stage. It is theoretically possible to conduct surveys and experimentation in most areas of the laws of evidence. Time and resources have not allowed such an approach. Instead the approach has been taken of using the wealth of research which has been undertaken in other enquiries,[44] and the research of psychologists, and to seek the views of those experienced in the operation of the trial system. The Commission intends to review this approach in the light of the reaction to the proposals in this Interim Report. A further purpose of this report, therefore, is to identify those problem areas where empirical research is necessary before advancing final proposals. The final recommendations of the Commission will be contained in a further report which is expected to issue some time in 1986.
[1] s 79: ‘The laws of each State, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all courts exercising federal jurisdiction in that State in all cases to which they are applicable’.
s 80: ‘So far as the laws of the Commonwealth are not applicable or so far as their provisions are insufficient to carry them into effect, or to provide adequate remedies or punishment, the common law of England as modified by the Constitution and by the state law in force in the State in which the court in which the jurisdiction is exercised is held shall, so far as it is applicable and not inconsistent with the Constitution and the laws of the Commonwealth, govern all courts exercising federal jurisdiction in the exercise of their jurisdiction in civil and criminal matters.’
[2] For the purpose of the reference, however, such a description is too general to provide guidance. The issue has been discussed further in ch 2, para 27f and the tentative conclusions stated.
[3] The origins of the laws of evidence are discussed below (para 49-54).
[4] Note: as arbiter on constitutional matters it has tended to rely on arguably extended judicial notice not evidence.
[5] See below para 323-8; para 341-4.
[6] Senator G Evans, ‘The Legal Profession: A Commonwealth Perspective’, Paper delivered by the Attorney-General at National Legal Convention, Brisbane 3 July 1983).
[7] The costs include time spent by witnesses waiting to give evidence.
[8] Thus the view has been taken that the power of the, judge to call and question witnesses is outside the terms of reference. See para 42.
[9] See Australian Law Reform Commission, Issues Paper No 3, Reform of Evidence Law, Sydney, 1980, 15ff (ALRC IP3).
[10] Dissatisfaction with the adversary system is expressed from time to time. The alternative, however, of the European ‘inquisitorial’ approach is also open to criticism. Eg, Professor Dr W Zeidler, ‘Evaluation of the Adversary System: A Comparison. Some Remarks on the Investigatory System of Procedure’ (1981) 55 ALJ 390. The task has yet to be undertaken of thoroughly exploring the different systems and evaluating their respective advantages and disadvantages. For further reference to the adversary system assumption, see para 43, 64-67.
[11] Criminal Law Revision Committee. England and Wales, Eleventh Report. Evidence (General) HMSO. London, 1972, Cmnd 4991, para 14, 24, 27; C Tapper, ‘Evidence (General) Eleventh Report of the Criminal Law Revision Committee’ (1972) 35 ML Rev 621; M Zander, ‘Are Too Many Professional Criminals Avoiding Conviction’?—A Study in Britain’s Two Busiest Courts’ (1974) 37 ML Rev 28: M Zander, ‘The Acquittal Rate of Professional Criminals: A Reply’ (1974) 37 ML Rev 444; J Baldwin & MJ McConville, ‘The Acquittal Rate of Professional Criminals: A Critical Note’ (1974) 37 ML Rev 439; JA Mack, ‘Full-Time Major Criminals and the Courts’ (1976) 39 ML Rev 241. Institute of Criminology. Proceedings. Sydney University Law School, The Criminal Trial on Trial No 53, Govt Printer.
[12] Zandec Mack; J Willis & P Sallmann, ‘Criminal Statistics in the Victorian Higher Courts: A First Glimpse of the Possibilities’ (1977) 51 LIJ 498; P Sallmann, ‘Victoria’s Criminal Courts on Trial, in Laura 80 ‘81, No 2, Latrobe University, 1980, 6; and a comment on that paper by Chief Commissioner SI Miller, ‘The Ritual and the Result’ in Laura, 80 ‘81, No 2, Latrobe University, 1980, 13; see articles by SJ Elgrod. ‘Acquittals—A Statistical Exercise’ (1973) 123 NLJ 1 104; ‘Acquittals—Further Statistics’ (1975) 125 NLJ 45; ‘Acquittals—A Further Study’ (1976) 126 NLJ 580. See also the figures for ‘Higher Criminal Courts, NSW’ 1974-1980’: 35% to 44.1% acquittals in matters that went to trial, and guilty plea rate 77.6% to 82.3%,, in a Commentary by EF Bunt in The Criminal on Trial, 61-2.
[13] P Sallmann, ‘An Examination of some Criticisms of the Criminal Trial’ in The Criminal on Trial, 29-32; the Victorian County Court figures are also given by Sallmann in Laura 80 ‘81, No 2, 8-10.
[14] In England, acquittals by direction account for approximately one third of acquittals—see M Zander, ‘Juries’ Decisions and Acquittal rates’, in N Walker & A Pearson (ed) The British Jury System, Proceedings of the 7th Cropwood Roundtable Conference, Cambridge, 1975; Baldwin & McConville.
[15] A Muir, ‘The Rules of the Game’ [1973] Crim L Rev 341; S McCabe & R Purves, By-Passing the Jury (Occasional Paper No 3) Oxford University Penal Research Unit, 1971.
[16] S McCabe & R Purves, The Shadow Jury at Work, Oxford University Penal Research Unit Blackwell, 1974; J Baldwin & M McConville, Jury Trials, Clarendon Press. Oxford, 1979, 61.
[17] For example. an English study has produced figures of 6.0% of convictions seriously doubted (by two or more parties to the criminal proceedings studied—Baldwin & McConville, 51. This type of approach to the assessment of the system has more value than the approach preferred to above of simply calculating rates of convictions and acquittals. It is not possible to state a theoretical conviction or acquittal rate that should be regarded as correct.
[18] Woolington v DPP [1935] AC 462, 481-2 and see the remarks of Windeyer J. on the common law view of the right to silence and the inquisitorial system, Rees v Kramnan (1965-66) 114 CLR 63, 80.
[19] Royal Commission on Criminal Procedure. England and Wales, Report. HMSO. London, 1981. Cmnd 8092, para 1.27.
[20] E Campbell, ‘Principles of Evidence and Administrative Tribunals’ in E Campbell & L Waller (ed) Well and Truly Tired, Law Book Co. Sydney, 1982. 36.
[21] In the case of the criminal trial there are at least two reasons why a similar approach could not be taken—the trial is accusatorial and the underlying concern to minimise wrongful convictions warrants a strict approach to the admissibility of evidence.
[22] Campbell. 86.
[23] DE Harding. ‘Modification of the Hearsay Rule’ (1971) 45 ALJ 531, 534; cf Geschke v Del Monte Home Furnishers Pty Ltd [1981] VicRp 80; [1981] VR 856. 863.
[24] ALRC IP 3, 41ff.
[25] Harding. 534.
[26] RK Todd, ‘Administrative Review before the Administrative Appeals Tribunal—A Fresh Approach to Dispute Resolution?’ (1981) 12 FL Rev 95. 97; also cited by Campbell in Campbell & Waller. 86.
[27] Campbell in Campbell & Waller. 86.
[28] R v War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 50 CLR 228, 256.
[29] The requirement of logical relevance and the obligation to ensure natural justice would be the starting point. The doctrine of precedent would hurry the process.
[30] A Sowden, Evidence Research Paper No 1, Comparison of Evidence Legislation Applying in Federal Courts and Courts of the Territories, Australian Law Reform Commission, Sydney, 1981, S Odgers, Evidence Research Paper No 2, Common Law of Evidence: Areas of Disagreement and Uncertainty, Australian Law Reform Commission, Sydney, 1981.
[31] para 49-53.
[32] id, 68-79.
[33] Bibliography.
[34] See below para 257, 529-31. The issues are being considered in the reference on Aboriginal Customary Law.
[35] See para 282-85; 610-13.
[36] See Appendix B.
[37] See Terms of Reference.
[38] Appendix A.
[39] They contain material that is not included in this Report—for example, analysis of proposals of other law reform agencies. Copies of Research Papers are available in libraries including public libraries, Supreme Court libraries and law school libraries.
[40] Appendix B.
[41] The proposals are the result of these discussions and deliberations but do not necessarily accord with the views expressed by those who have been involved.
[42] Appendix A.
[43] See below para 213.
[44] eg, on unsworn statements, confessions, identification evidence.
27. The Need for a Definition. The terms of reference refer to the ‘laws of evidence’ as a body of law. The subject-matter of that body of law, however, is not defined in the terms of reference. The task of definition falls upon the Commission. It is a critical task as it determines the rules of law to be reviewed and critically examined and the scope of any proposals.
28. Attempts at Definition. In the Issues Paper,[1] the preliminary position was taken of using a wide definition—those rules which directly or indirectly:
• control what evidence may be received;
• control the manner in which evidence is presented and received;
• control how evidence is to be handled and considered once it is received and what conclusions, if any, are to be drawn from particular classes of evidence;
• specify the degree of satisfaction that the tribunal of fact must attain in determining whether a fact in issue is established and the consequences if such a level of satisfaction is not reached.
This is the approach of several writers.[2] It has been found, however, that this formulation is unsatisfactory as it includes both substantive and procedural rules. While the definition of the ‘laws of evidence’ has been considered by the courts, they have not attempted an exhaustive definition.[3]
29. Alternative Views. Professor JB Thayer’s view[4] was that only the exclusionary rules properly form the subject matter of the laws of evidence. He argued that the laws of evidence are not brought into play until what is relevant is ascertained. In his view the topics of relevance, burden of proof, judicial notice, and presumptions should all be categorized as belonging under the head of ‘legal reasoning’. He stated, for example, that judicial notice belonged ‘wherever the process of reasoning has a place, and that is everywhere. Not peculiarly in the law of evidence’. As to the parol evidence rule, he placed it in the category of substantive law. He stated that its aim is not to exclude evidence but to prevent the contradicting or varying of the written expression and the written form by an expression which is not written. McCormick and Wigmore do not appear to discuss issue estoppel or res judicata.[5] Heydon[6] excluded topics such as formal admissions, estoppel, and the parol evidence rule on the basis that they relate more to procedure or substantive law.
30. Statutory statements of the laws of evidence have left out some topics. The topics of issue estoppel, res judicata, corroboration, and rules relating to using extrinsic evidence to affect the interpretation of documents are not dealt with in the Federal Rules of Evidence (USA) or the Code proposed by the Law Reform Commission of Canada. On the other hand, Stephen’s Indian Evidence Act does deal with these matters although the provisions dealing with corroboration, presumptions, and issue estoppel are very limited. Stephen’s Evidence Act was enacted in a large number of former British colonies[7] and has been inherited by the Territories of Christmas Island and Cocos (Keeling) Islands.
31. Suggested Approach. There is no authoritative or conclusive definition to be found in the texts or legislation. There is general agreement, however, that the laws of evidence should be classified as part of adjectival law—the body of principles and rules which deal with the means by which ‘people’s rights and duties may be declared, vindicated or enforced, or remedies for their infraction secured’.[8] It is proposed to adopt this classification and to not deal with those principles and rules which can be described as part of the substantive law—which defines the rights and duties of people. On this basis it is also appropriate not to include those rules which should only be dealt with in the context of a review of the substantive law. While this approach provides a rational basis for defining the task it does not resolve all issues. For example, within the body of adjectival law there are rules which are clearly procedural in nature and rules that are clearly evidentiary. There is a grey area, however, within which a line must be drawn. The approach taken is to exclude those rules which are not clearly part of evidence law or which should be considered in a wider context.[9]
32. Rules Relating to the Interpretation of Documents and Estoppels. While evidence text books contain discussion of topics such as res judicata, issue estoppel, parol evidence rule, admissibility of extrinsic evidence to aid in the interpretation of wills, deeds and other instruments, there appears to be agreement that these are matters properly within substantive law. For example, Wigmore said of the parol evidence rule[10]
First and foremost. the rule is in no sense a rule of Evidence, but a rule of Substantive Law. It does not exclude certain data because they are for one or another reason untrustworthy or undesirable means of evidencing some fact to be proved. It does not concern a probative mental process,—the process of believing one fact on the faith of another. What the rule does is to declare that certain kinds of fact are legally ineffective in the substantive law; and this of course (like any other ruling of substantive law) results in forbidding the fact to be proved at all (ante, para 2). But this prohibition of proving it is merely the dramatic aspect of the process of applying the rule of substantive law. When a thing is not to be proved at all, the rule of prohibition does not become a rule of Evidence merely because it comes into play when the counsel offers to ‘prove’ it or ‘give evidence’ of it; otherwise, any rule of law whatever might be reduced to a rule of Evidence; a ruling (for example) that on a plea of self-defence, in an action of battery, no evidence of one plaintiff’s insulting words is to be received, would become the legitimate progeny of the law of Evidence.
The same analysis applies to the other topics mentioned above. There are; however, other topics to consider.
33. Burden of Proof. Text-books on the law of evidence invariably discuss the general principles (such as they are) for determining which party has the burden of proof on any particular issue, though most agree that the incidence of the legal burden is a matter of substantive law.[11] Hoffmann states:[12]
The incidence of the burden on each issue is a matter of substantive law. (See Tregea v Godart 1939 AD 16, 32) Any rule of law which annexes legal consequences to a fact, such as negligence, or the making of a contract, must, as a necessary corollary, provide for which party is supposed to prove that fact. Thus the rule that a plaintiff who claims damages for injuries in a motor accident must prove that the defendant was negligent is a part of the law of delict, while the rule that a landlord whose premises have been damaged by fire will succeed in an action against his tenant unless the latter proves that he was not negligent is a part of the law of landlord and tenant.
The point is demonstrated by considering, for example, the position of a jury in a criminal case. It is told what the essential elements of a crime are and that it should bring down a verdict of guilty if it is satisfied on all the evidence (to the relevant standard) that those essential elements exist in the case in question. In theory, the jury need not be told anything at all about the burden of proof, provided it is clearly told what facts are required to be proved and the level of certainty to which those facts must be proved, before the accused can be convicted. In practice, the jury is often told that the onus is upon the prosecution to prove those facts to the relevant degree. But it is difficult to see that this does anything but add emphasis to the direction that the relevant facts must be proved to the relevant degree. Rules for determining the incidence of the legal burden of proof are not something over and above the substantive rules to which the burden relates. Rather we speak of the ‘burden of proof’ because of the nature of the adversary process. It is placed on one party or the other according to the terms of the substantive rules.[13] Any review of the topic of burden of proof requires a review of the substantive law. It is inappropriate to engage in such a task in a reference concerned with evidence law.[14]
34. An exception must be made, however, for the burden of proof of facts on which the admissibility of certain evidence will depend. For example, the court will not admit a confession of the accused into evidence until it has been proved that the confession was obtained voluntarily. The prosecution, then, bears the onus of adducing sufficient evidence to persuade the court on that issue. Here, it is a rule of evidence which places that burden on the prosecution. The question of which party bears the legal onus of proof in relation to questions of fact preliminary to the admissibility of certain evidence (‘preliminary questions of fact’) cannot be divorced from a discussion of those rules of evidence to which the preliminary question of fact relates. For example, as long as the rule is that a court shall not admit evidence of a confession unless it is satisfied (to the relevant degree) that the confession was made voluntarily, the legal onus of proof is on the prosecution. The same analysis applies to other preliminary questions of fact, such as whether a witness is competent or whether certain evidence is privileged. Consequently, the question of the onus of proof in relation to preliminary questions of fact should be dealt with as part of the law of evidence, as part of an examination of the particular rules of evidence.
35. Evidential Burden. Some commentators disagree about whether the question of which party bears the evidential onus is one for the law of evidence.[15] Most evidence texts, though, do not deal with the question. In resolving the issue, it is important to bear in mind the different functions the evidential burden performs. The general rule that the evidential burden is on the patty who bears the legal burden[16] is really part of the law of procedure. It allows the judge to intervene where the party who bears the legal burden does not present sufficient evidence to the court for his case to be considered further. As Hoffmann points out:
By altering the trial procedure it would be possible to dispense with [the evidential burden] altogether. There is no particular reason why one should not have a system under which the court simply listened to all the evidence which the parties had to offer, and then decided the case according to the burden of proof in its ordinary sense.[17]
But sometimes the evidential burden is placed on the patty who does not bear the legal one. This is sometimes done because one party is likely to be in possession of the evidence relevant to the issue. For example, the evidential burden is placed on the accused in respect of the defence of provocation. To do otherwise would place a difficult task on the prosecution in most cases; for it might not know what facts it had to disprove. Thus the evidential burden can relieve a party of the consequences of bearing the legal burden of proof. In such cases the question of whether an evidential burden should be placed on a party depends on the relevant substantive law. It is, therefore, best to treat that aspect of the evidential burden as part of the substantive law rather than in the context of evidence law reform.
36. Conclusive and Persuasive Presumptions. Conclusive presumptions are rules of law which require the court to infer the presumed fact if the basic fact is proved.[18] On proper analysis, such ‘presumptions’ are ‘only a form of expression for a positive rule of law’.[19] Persuasive presumptions have the effect of allocating the legal burden of proof.[20] They should be dealt with as part of the substantive law. First, rules that allocate the legal burden of proof are part of the substantive law. Secondly, the only justification for adopting a persuasive presumption is to achieve some policy objective of relevance to the particular area of the substantive law to which the presumption relates. Therefore, such presumptions should be treated as part of the relevant area of substantive law or dealt with only in an examination of it.[21] For example, the presumption of legitimacy is only important in so far as particular rules of substantive law attach legal consequences to a child’s illegitimacy. Consequently, the question whether there should be such a presumption depends largely on what those consequences are. If those consequences change, it may well be that the policy in favour of the legitimacy of children born in marriage loses much of its justification. In that case, the effect of the presumption may also need to be changed. Granting this, it might still be argued that it does not follow that presumptions should not be dealt with as part of evidence law reform. After all, policy considerations must be taken into account in other areas of evidence law—for example, the discretion to exclude illegally obtained evidence in order to deter improper conduct by the police. But in these other areas, it is necessary to weigh the evidential effect of the discretion to exclude with the other policy considerations behind that discretion. Its evidential effects justify consideration of it in the context of evidence law reform. In contrast, persuasive presumptions have no evidential effect at all. They do not exclude evidence or affect the way in which evidence is weighed. The justifications for persuasive presumptions have nothing to do with the process of fact-finding.[22]
37. A further argument against dealing with persuasive presumptions is a pragmatic one. It is that a detailed consideration of the mass of legal presumptions would be an ‘unprofitable and monstrous task’. It would be necessary in any examination of persuasive presumptions to look at all presumptions in order to determine which presumptions were persuasive. It is extremely difficult to say how many presumptions there are.[23] Only by examining each presumption, and the policy considerations behind it, is it possible to determine what effect the presumption should have. That is best done in the context of an examination of the relevant areas of substantive law with which this reference is not concerned.
38. Rules Controlling what Evidence may be Received. Most would agree that the exclusionary rules—hearsay, secondary evidence of documents, character evidence, opinion evidence, privilege, exclusionary discretions—are part of the laws of evidence. These rules control what evidence may be admitted. Most would agree that the rules relating to relevance should also be included—Thayer notwithstanding. They provide the initial control of the evidence that may be admitted. The laws of evidence should be defined as including those rules which directly control what evidence may be received.
39. Rules Controlling who may Give Evidence. There also appears to be agreement that the rules that control who may give evidence and who may be compelled to give evidence properly come within the subject. So too should the swearing of witnesses and the giving of unsworn evidence.
40. Rules Controlling the Course of the Trial. We are here concerned with those rules of law which control the conduct of the trial—rules of evidence and rules of procedure. The boundary between the two is difficult to draw at times. The tentative decision taken at this stage is to consider only those rules which can be clearly described as laws of evidence and to exclude those rules where there is room for argument. To this end a test has been adopted of including only those rules which affect and control the presentation of the evidence of an individual witness. No other test has been found which will enable an internally consistent proposal to be developed.
41. The rules included within ‘the laws of evidence’ under this approach include rules relating to the interpretation of a witness’ evidence, the free narration of evidence, the refreshing of memory, leading questions, the control of cross-examination, limits on re-examination and matters of a similar nature. The report does not deal with a number of procedural aspects which are sometimes discussed in evidence texts or dealt with in reports recommending reforms in the laws of evidence. These matters include:
• the right to begin;[24]
• the order in which witnesses should be called;[25]
• the right of a party to re-open his case;[26]
• the right of a party to lead evidence in rebuttal of evidence led by the another party;[27]
• ordering witnesses to leave the court;[28]
• a ban on publication of forbidden questions;[29]
• the number of counsel appearing for a party who may question any one witness.[30]
A number of other matters are discussed in Phipson on Evidence but do not appear to have been discussed elsewhere and do not appear to have been dealt with in any law reform proposals on the law of evidence. These include rules:
• that proceedings must take place in open court subject to certain listed exceptions;[31]
• that evidence must be given orally subject to certain exceptions;[32]
• about the presence of the accused;[33]
• about the duties of prosecutors in calling evidence and making evidence available to the accused[34]
• as to order of speeches.[35] Cross has argued that this topic is a matter of practice.[36]
In discussing the issue of definition, Cross deals briefly with a number of matters not referred to above but which he describes as matters of practice or procedure. These include:
• the subpoenaing of witnesses;
• the gathering of evidence before trial—the rules controlling the preparation of affidavits; the rules controlling the obtaining of evidence on commission;[37] the delivering and answering of interrogatories; the perpetuation of testimony;[38] the obtaining of depositions of committal proceedings, Coroners’ inquests and other rules relating to the preservation of testimony and the rules that permit such depositions to be tendered at a subsequent trial.[39]
The issue of where the line should be drawn between rules of evidence and rules of procedure should be considered in the light of the draft legislation. The legislation contains a provision which is intended to make it clear that subject to the limits placed on the power of the court to control proceedings by the provisions in the Act, those powers will remain unaffected. Such a clause would probably be necessary in any event because the rules which are treated as part of the laws of evidence appear to have developed from the same power and duty which gave rise to those rules which have been described as procedural—the general power and duty to control the proceedings.
42. The Judge’s Right to Call and Question Witnesses. If the judge’s right to call and question witnesses is to be categorised it should be regarded as part of the laws of procedure and not part of the laws of evidence. This categorisation would be consistent with the approach taken to the questioning of witnesses. The definition—those rules which `affect and control the presentation of the evidence of an individual witness’ would have the effect that the evidence proposals would operate from the moment a witness stepped into the witness box. It is suggested that this is a sensible and rational approach. In any event, no other definition has been found which will enable an internally consistent proposal to be produced. Applying the same definition, rules which define whether a judge may call, re-call or question a witness would be regarded as outside the laws of evidence but rules controlling the manner of the questioning of the witness by the judge would be within the laws of evidence.
43. Another reason for excluding the topic is that the terms of reference assume that the essential features of the adversary trial system will remain.[40] It may be said that the adversary system ‘embodies two distinct principles’:[41]
• Party Autonomy. The parties have the right to pursue or dispose of their legal rights as they wish. In addition the parties define the dispute.[42]
• Party Prosecution. The parties have the right and the responsibility to choose the manner in which they will go forward with their case and the proof they will present to support it. The judge’s role is to evaluate passively the merits of the case as and when it is presented to him.[43] This is reflected under Australian law.[44]
In considering the question of the judge’s power to call and question witnesses, one is considering an essential aspect of the adversary trial system. Generally, arguments for change in the judge’s powers are based on criticisms of the consequences of an adversary system. A detailed examination of that system is needed if the issues are to be dealt with satisfactorily. A reference on the trial system or on civil and criminal procedure would be required to raise issues of this nature. Any statutory statement of the law of evidence should assume the present law concerning the right or lack of right of the judge and the parties to call and question witnesses.
44. Rules Aiding inferences Drawn from Evidence. Legal rules which affect the process of reasoning from evidence to conclusion of fact are of three main types. First, there are those rules which specify the level to which some fact must be proved before the court will accept it as proved: rules, that is, which relate to the ‘standard’[45] or ‘quantum’[46] of proof. Secondly, there are what are generally called ‘presumptions’.[47] These are rules which allow particular inferences to be drawn from the evidence, such as the presumption which allows the court to infer the death of a person from evidence that he has not been heard of by those who would be likely to have heard of him for seven or more years.[48] Thirdly, there are rules which perform the converse function of presumptions. They limit rather than facilitate proof. Normally, these rules are discussed under the heading of ‘corroboration’.[49] Rules in each of these areas are properly treated as part of the law of evidence. Some qualifications, however, should be made. Reference has been made above to the need to treat some presumptions as part of the substantive law. Some further comment is required about the treatment of standard of proof and presumptions:
• The Standard of Proof.[50] The term ‘standard of proof’ is used in two different senses. In its primary sense, it refers to the level of probability to which a fact must be proved before a court will accept it as proved—the ‘legal standard of proof’. In a secondary sense, the term refers to the standard to which a fact must be proved before the judge will let the question of that fact go to the jury or, in the case of a non-jury trial, decide the case against the proponent without calling on the defence or defendant to produce any evidence—the ‘evidential standard of proof’. Both standards are generally treated in texts on evidence law.[51] Certainly it is difficult to see how else the legal standard of proof could be classified.[52] The evidential standard is more difficult to classify. It is normally treated as part of the topic of sufficiency of evidence. That topic is usually said to raise both evidential and procedural questions.[53] A consultant, Justice Glass, has urged inclusion of the topic. He argues that
... the application of the standard of proof when all the evidence is in may be interrupted by a successful application for a ruling that the evidence is insufficient. Unless the code of evidence deals with this topic it would, in my view, be incomplete and open to the reproach that it deals with all questions of evidence except whether there is enough of it.[54]
No doubt most texts on evidence law deal with it for the sake of completeness. Despite that, it is submitted that it would be better not to deal with the topic in the context of evidence law reform. First, the issue is better classified as part of the law of procedure. The evidential standard of proof is not concerned with the process of fact-finding. Rather, its function is to define the circumstances in which the judge, in a jury trial, can intervene to decide a question of fact or, in a non-jury trial, can decide a question of fact before the defendant or defence gives any evidence. It is a pre-condition which must be satisfied before the judge is entitled to use a particular procedural device. That pre-condition seems clearly an aspect of the law of procedure. The second reason for not dealing with the evidential standard of proof in this report is that the evidential standard of proof is generally treated as part of the topic of sufficiency of evidence. That topic raises two important questions. The first is what evidential standard of proof should apply and what evidence can be taken into account in determining whether that standard is satisfied. The second is the effect of a submission of no case to answer or a non-suit[55] on the right of the defence or defendant to call evidence if the submission fails and on the right of the proponent to bring another action if it succeeds. Even if it is accepted that the question of what standard of proof must be satisfied on a submission of no case to answer is part of evidence law, the rules governing that submission and the consequences that follow from it are part of procedural law. It would be undesirable to treat these two issues separately. Given that, at most, the issues have marginal significance for the laws of evidence, but are an important aspect of the law of procedure, it would be better to treat them as part of a review of court procedure rather than in the present context.[56]
• Evidential Presumptions. Evidential presumptions[57] can properly be classified as part of evidence law, since their primary purpose is to facilitate proof. But they still should not be dealt with in the context of evidence law for a number of reasons. Firstly, evidential presumptions exist because some substantive rules may, by placing the legal burden of proof on one party rather than the other, give rise to difficulties of proof or lengthen the trial. Whether the use of a particular evidential presumption is justified, then, can only be decided by examining the relevant substantive rules and their effect. For that reason, evidential presumptions are best considered together with the relevant rules of substantive law. This view is consistent with the fact that most statutory presumptions are to be found in the relevant substantive legislation and not in a single Evidence Act. Secondly it would be pointless to deal with evidential presumptions without dealing with persuasive presumptions at the same time. Persuasive presumptions are outside the terms of reference and there may be constitutional difficulties in dealing with them at a federal level.[58] No useful recommendations could be made in relation to evidential presumptions alone.[59]
There are two qualifications to the conclusions of the previous paragraph. First, in some cases, presumptions are relevant to the determination of preliminary questions of fact. The presumption of the validity of a marriage is an example. It may be relevant in determining whether a person is a competent witness by reason of his marriage to the defendant. These questions should be dealt with, if at all, in the context of the relevant ‘substantive’ rules of evidence.[60] The second qualification concerns the relationship between presumptions and judicial notice. In some cases, presumptions are used as an alternative to provisions requiring a court to take judicial notice of particular matters—for example a presumption that a piece of paper purporting to be Government Gazette is the Government Gazette, instead of a provision requiring courts to take judicial notice of the Gazette. In these cases, it would not be possible to separate a discussion of the relevant presumptions from a discussion of judicial notice.
• Presumptions of Fact. These remain to be considered. These are principles of ordinary reasoning which allow the inference of one fact from another. Labels have been given to them,[61] but they simply recognise principles of reasoning and should not be dealt with by legislation.
45. Judicial Notice. Rules of evidence regulate the presentation and handling of evidentiary material formally presented. The law on what may be acted upon without formal proof—judicial notice—is a topic that must also be considered. Thayer argued that the topic had no place in the consideration of the laws of evidence:
Whereabouts in the law does the doctrine of judicial notice belong? Wherever the process of reasoning has a place, and that is everywhere. Not peculiarly in the law of evidence ... The habit of regarding this topic as a there title in the law of evidence obscures the true concept of both subjects.[62]It belongs to the general topic of legal or judicial reasoning. It is, indeed, woven into the very texture of the judicial function. In conducting a process of judicial reasoning, as of other reasoning, not a step can be taken without assuming something which has not been proved; and the capacity to do this with competent judgment and efficiency is imputed to judges and juries as part of their necessary mental outfits.[63]
However, it is a topic that must be considered as part of the present exercise. Judicial notice permits the judge and the jury to accept propositions not formally proved in accordance with and not satisfying the rules of evidence. In an indirect way it defines that which must be formally proved. An alternative view is that judicial notice is a form of proof.[64] This is true, however, only in a broad sense; in many cases no material on which to found notice is placed before the court.[65] Wigmore attempted to confine judicial notice to the situation where the court is justified by general consideration in declaring the truth of the proposition without evidence.[66] The broader view has been followed in the United States of America.[67] Many facts are ‘noticed’ without reference being made to the occurrence:
Judicial notice of matters of fact is founded upon that fund of knowledge and experience which is common to both judges and jurors, and is not confined to the Bench. In many cases no reference is made during the trial to this aspect of judicial notice; if the fact is relevant, everyone in court will assume that rain falls, for example: and there is no ascertainable limit to the matters which are thus silently noticed by both judge and jury.[68]
Thus it would appear to be more accurate to regard the law as permitting facts to be found expressly or impliedly without formal proof. Thayer stated:
But the true conception of what is judicially known is that of something which is not, or rather need not, unless the tribunal wishes it, be the subject of either evidence or arguments—something which is already in the court’s possession, or at any rate is so accessible that there is no occasion to use ‘any means to make the court aware’ of it; something which it may deal with quite unhampered by any rules of law.[69]
46. Topics Excluded. The approach taken to the problem of definition has been to exclude:
• Those topics which should be classified as part of the substantive law or which are so linked to the substantive law that they can only properly be considered in that context. These include legal and evidential burden of proof, parol evidence rule, res judicata, issue estoppel, presumptions.
• Those topics of adjectival law which should be classified as procedural rather than evidentiary. The result of this distinction is the exclusion of rules such as those relating to the gathering of evidence (including evidence on commission) the perpetuation of testimony, who begins, notice of alibi evidence, no-case submissions and the standard of proof applicable.
• Topics such as ordering witnesses out-of-court, bans on the publication of evidence, duties of the prosecution in calling evidence, the powers of judges and parties to call witnesses and the suggestion that there should be changes in the organisation and operation of forensic scientific services.[70]
47. Topics Included. The topics that remain and will be dealt with in this report fall into three main areas:
• Witnesses—competence and compellability; sworn and unsworn evidence: manner of questioning witnesses.
• Rules of admissibility and exclusion—relevance, secondary evidence of documents, hearsay, opinion, admissions and confessions, convictions as evidence of the facts on which they are based, identification, character, prior conduct, privileges, exclusion of evidence in the public interest, exclusionary discretions.
• Aspects of proof—judicial notice authentication, standard of proof, and corroboration.
Other ancilliary areas are also considered.
[1] Australian Law Reform Commission, Issues Paper No 3, Reform of Evidence Law, Sydney, 1980.
[2] eg, JA Gobbo, D Byrne & JD Heydon, Cross on Evidence, 2nd Aust edn, Butterworths, Sydney, 1979; JH Buzzard, R May & MN Howard. Phipson on Evidence, 12th edn, Sweet & Maxwell. London, 1976; F Bates, Principles of Evidence, Law Book Co. Sydney, 1976.
[3] Administrative law: E Campbell, ‘Principles of Evidence and Administrative Tribunals’, in E Campbell & L Waller (ed) ‘Well and Truly Tried’. Law Book Co, Sydney, 1982. 36, 40-1, and authorities cited especially Wajnberg v Raynor [1971] VicRp 68; [1971] 1 VR 565, 678 (McInerney J). Private international law: Campbell, 40; JHC Morris (ed) Dicey, and Morris on The Conflict of Laws, 10th edn, Stevens & Sons. London, 1980. vol 2, 1182ff.
[4] JB Thayer, A Preliminary Treatise on Evidence at the Common Law, Little, Brown & Co, Boston, 1898 (Reprinted 1969 by Rothman Reprints. New Jersey) 263, 278, 314ff, 388, 485, 390ff and 270ff.
[5] CT McCormick, Handbook of the Law of Evidence, Hornbook Series, West Publishing, St Paul, 1954; JH Wigmore, A Treatise on the Anglo-American System of Evidence, 3rd edn, Little, Brown & Co, Boston, 1940.
[6] JD Heydon, Cases and Materials on Evidence, Butterworths, London, 1975, 5.
[7] Stephen’s Indian Evidence Act 1872 was used in Pakistan, Burma and was adapted for use in Ceylon. Singapore, Grenada, Turks and Caicos Islands, Kenya, Nigeria, and Uganda. See GD Nokes, ‘Codification of the Law of Evidence in Common Law Jurisdictions’ (1956) 5 ICLQ 347.
[8] DM Walker, The Oxford Companion to Law, Clarendon Press, Oxford, 1980, 24 1195.
[9] For example, an examination of the adversary trial—the power of the judge to call witnesses.
[10] Wigmore on Evidence, para 2400; Federal/Provincial Task Force, Canada, Report on Uniform Rules of Evidence, Carswell, Toronto, 1982, para 29.13.
[11] See, eg, Cross on Evidence, para 4.17; LH Hoffmann, The South African Law of Evidence, 2nd edn, Butterworths, Durban, 1970, 346: Phipson on Evidence, para 94; Thayer, 353; Lord Denning, ‘Presumptions and Burdens’ (1945) 61 LQ Rev 379; EI Sykes, Australian Conflict of Laws, Law Book Co, Melbourne. 1972, 151; PE Nygh, Conflict of Laws in Australia, 4th edn, Butterworths, Sydney, 1984, 193-4. Nygh comments that it is not possible to lay down a general rule in relation to the classification of burden of proof as procedural or substantive in private international law. It seems that policy considerations will encourage the courts to categorise a particular ‘burden of proof’ as procedural.
[12] Hoffmann, 346.
[13] This point is important not simply because the Terms of Reference require the Commission to report only on evidence law. If the burden of proof is an aspect of the substantive law, there may also be constitutional difficulties with any legislation which attempts to deal generally with it. See PD Phillips. ‘Choice of Law in Federal Jurisdiction’ (1961) 3 MUL Rev 170 (Part 1), 348 (Part 2).
[14] The burden of proof in criminal cases has recently been the subject of a report by the Senate Standing Committee on Constitutional and Legal Affairs, The Burden of Proof in Criminal Proceedings, AGPS, Canberra, 1982, para 1.5. Although the Committee suggested that the legislation it recommended should be called the Evidence (Burden of Proof) Bill, its approach is consistent with that suggested in this chapter. The Committee’s recommendations are not limited to the rules applied by federal courts and courts exercising federal jurisdiction, as might be expected if the topic were part of evidence law. Instead, they are limited to specific Commonwealth legislation and ordinances of the Australian Capital Territory. That is clearly the appropriate course for legislation that affects the substantive law.
[15] Hoffmann says that the concept of evidential burden is ‘entirely procedural’. (Hoffmann, 348). Thayer also appears to take the view that it is not part of the law of evidence, although his comments on the burden of proof might be interpreted as leaving open the question whether some aspects of the law relating to the evidential burden (as opposed to the legal burden, which he clearly regards as not part of the law of evidence) are part of the law of evidence. (Thayer, 353). On the other hand, according to Heydon, ‘[t]he incidence of [the evidential burden of proof] is determined by particular rules of evidence’. (Heydon, 13).
[16] Heydon, 14.
[17] Hoffmann, 348.
[18] For example, no child under a specified age can be guilty of an offence.
[19] EM Morgan, ‘Presumptions’ (1937) 12 Washington L Rev 255; Cross on Evidence, para 6.9; Heydon, 45; Hoffman, 368; Phipson on Evidence, para 2118; Wigmore on Evidence, para 2492.
[20] eg, presumption of legitimacy; presumption of formal validity of a marriage; presumption of marriage from cohabitation. Query presumption of essential validity of a marriage and presumption of death from seven year’s absence—may be ‘evidential’.
[21] cf Evidence Code (Cal) Stats 1965, c 299, s 605.
[22] The conclusion is consistent with the conclusion reached in a number of cases concerned with the conflict of laws. In some conflict cases, it has been necessary for courts to decide whether a presumption is part of evidence law or substantive law. The problem arises because, in general, the law of the jurisdiction of the court (the lex fori) is applied to determine evidential questions, while the law specified by the choice of law rule appropriate to the relevant cause of action (the lex causae) is applied to determine questions of substantive law. Where the lex causae and lex fori differ, the law must be classified as substantive or evidential. Although the point is by no means settled, the majority of cases appear to favour the view that legal presumptions, particularly those closely connected with the existence or non-existence of substantive rights, are part of the substantive law. For discussion, see Morris, 1189-90: Nygh, 193-4.
[23] Quite apart from the numerous statutory presumptions, there are a vast number of common law ones. 31A Corpus Juris Secundum, Evidence, para 1114ff, for example, lists over 100 presumptions with cross-references to a large number of other special subjects where additional presumptions are discussed. See CV Laughlin. ‘In Support of the Thayer Theory of Presumptions’ (1953) 52 Mich L Rev 195. Wigmore on Evidence, para 2499-540, devotes approximately 150 pages to listing the main presumptions, although the list is not complete. Certainly Thayer’s view is shared by other commentators and by law reform bodies and legislatures that have dealt with the law relating to presumptions (Thayer. 313ff).
[24] This topic appears in some texts: Phipson on Evidence, para 1559; Heydon, 429; and described as a rule of practice in Cross on Evidence, para 10.1. It does not appear to have been dealt with in any of the general law reform proposals; cf Federal Court Rules, O 32, r 1.
[25] This topic is discussed in some texts: Phipson on Evidence, para 1547, PK Waight & CR Williams, Cases and Materials on Evidence, Law Book Co, Sydney, 1980, 239: and in some reform proposals: American Law Institute, Model Code of Evidence, Philadelphia, 1942, r 105(a): New South Wales Law Reform Commission, Working Paper. The Course of the Trial, Government Printer, Sydney, 1978, Draft Bill cl 122(2) (NSWLRC WP); the matter would come within the general discretion to control the presentation of evidence contained in rule 611 US Federal Rules of Evidence (1981); section 765, Californian Code of Evidence, Stats 1965, c 299: and the general provision in the Law Reform Commission of Canada (LRC Canada) Evidence Code ((975) cl 58 and the Uniform Law Conference of Canada (ULCC) Uniform Evidence Act (1982) cl 99; cf Federal Court Rules, O 32, r 4.
[26] The only references found on this topic to date are in Waight & Williams, 344-5, and NSWLRC WP, Draft Bill cl 137. The Californian Evidence Code, Stats 1965, c 299, cl 778 relates to the recalling of witnesses.
[27] This has been discussed in Phipson on Evidence, para 1616; Cross on Evidence, para 10.64; Waight & Williams, 345-50. It appears to have been dealt with only by the NSWLRC WP. Draft Bill, cl 137(5).
[28] Cross on Evidence, para 10.12, discusses this topic as a matter of procedure. It is discussed in some texts without a distinction being drawn: Phipson on Evidence, para 1545; Waight & Williams. 241-3. It appears to be dealt with by most law reform bodies in their proposals: US Federal Rules of Evidence (1981) rule 615; Californian Code of Evidence, Stats 1965, c 299, s 777; LRC Canada, Evidence Code (1975) cl 61(1); ULCC Uniform Evidence Act, cl 107 (also power to order not to discuss evidence, clause 109; NSWLRC WP. Draft Bill, cl 142.
[29] While this has been considered by the New South Wales Law Reform Commission in its proposals, it does not appear to be discussed in any other proposals or texts: NSWLRC WP, Draft Bill, cl 147; cf Commonwealth, State and Territory legislation dealing generally with the power to prohibit publication: A Sowden, Evidence Research Paper No 1, Comparison of Evidence Legislation Applying in Federal Courts and Courts of the Territories, Australian Law Reform Commission, Sydney, 1981, para 3.21, in particular the Family Law Act 1975 (Cth) s 121 and the Federal Court of Australia Act 1976 (Cth) s 50.
[30] This topic is dealt with in the New South Wales Law Reform Commission proposals: WP, Draft Bill, cl 122(5) and in the American Law Institute Model Code of Evidence, r 105(b).
[31] Phipson on Evidence, para 1541.
[32] id, para 1544; cf Supreme Court Act 1933 (ACT) s 38 and Supreme Court Rules (ACT) O 39, r 1 ; Judiciary Act 1903 (Cth) s 77H: Federal Court of Australia Act 1976 (Cth) s 47.
[33] id, para 1546.
[34] id, para 1551.
[35] id, para 1562.
[36] Cross on Evidence, para 10.1; cf Federal Court Rules, O 32, r 4; Supreme Court Rules (ACT) O 38, r 18.
[37] cf High Court Rules, O 37, r 3; Federal Court Rules, O 34, r 5: Family Law Regulations, r 118; Supreme Court Rules (ACT) O 34, r 4.
[38] cf legislation of States and Territories in Sowden, para 4.32-4.35.
[39] Cross on Evidence, para 10.1-10.14.
[40] See Criminal Law Revision Committee, England and Wales (CLRC) Eleventh Report, Evidence (General) HMSO, London, 1972, Cmnd 4991, para 13, where similar interpretations were made.
[41] N Brooks, ‘The Judge and the Adversary System’ in AM Linden (ed) The Canadian Judiciary, Osgoode Hall Law School. York University. Toronto, 1976, 89, 93: see also para 64-67.
[42] id, 93-6. Those propositions may be qualified -the Judge can deny parties the right to be heard, give summary judgments, direct separate trials and amendments to the presentment.
[43] id. 96-7.
[44] Titheradge v R [1917] HCA 76; (1917) 24 CLR 107: Shaw v R [1952] HCA 18; (1952) 85 CLR 365: Richardson v R [1974] HCA 19; (1974) 48 ALJR 181: Whitehorn v R [1983] HCA 42; (1983) 57 ALJR 809. 814ff (Dawson J).
[45] Cross on Evidence, para 5.1; Phipson on Evidence, para 119.
[46] Hoffmann, 363.
[47] These are not to be confused with substantive or persuasive presumptions which have the effect of allocating the legal burden of proof, and which are properly regarded as part of the substantive law rather than as part of the law of evidence see above—para 36.
[48] Cross on Evidence, para 6.28-6.39.
[49] Cross on Evidence, ch 9. In some respects, that heading is misleading. A rule of law might prevent the conclusion of guilt being inferred from the uncorroborated evidence of a particular witness. (eg, the unsworn evidence of a child). But it might take a different form. For example, it might require the judge to warn the jury of the dangers of reaching a particular conclusion of fact on the basis of evidence of certain types. Whether the warning should be given may be quite independent of whether the evidence in question is corroborated.
[50] See Appendix C, para 286-93.
[51] Cross on Evidence, para 3.13-3.16, ch 5; Waight & Williams, 113ff, 151ff; Wigmore on Evidence, para 2494ff.
[52] It is not part of the substantive law, since it is concerned with the proof of facts, not the consequences that follow once certain facts are proved Nor does it appear to be part of the law of procedure. It does not govern the way in which the trial is conducted.
[53] HH Glass, ‘The Insufficiency of Evidence to Raise a Case to Answer’ (1981) 55 ALJ 842: HH Glass. MH McHugh & FM Douglas, The Liability, of Employers, 2nd edn, Law Book Co, Sydney, 1979, 204-9.
[54] Glass JA, Submission: Aspects of Proof (18 March 1983) 2.
[55] That is, a submission that the plaintiff has failed to make out a legal course of action or failed to lead evidence or sufficient evidence to justify leaving the case to the jury.
[56] See, eg, CLRC, Federal Provincial Task Force, Canada, Report on Uniform Rules of Evidence, Carswell, Toronto, 1982; LRC Canada, Report on Evidence, Information Canada, Ottawa, 1975; Ontario Law Reform Commission, Report on the Law of Evidence, Government Printer, Toronto, 1976; New York State Law Revision Committee, Proposed Code of Evidence for the State of New York, West Publishing, St Paul, 1982. Similarly, the US Federal Rules of Evidence (1981) do not deal with the issue.
[57] Presumptions affecting the evidential burden of proof—eg, statutory presumptions which provide that some fact or document will be ‘prima facie evidence’ of some other fact. Also the presumption of regularity. Query presumption of death and presumption of essential validity of marriage.
[58] Phillips, 170, 348.
[59] The only alternatives for reform are to retain the presumptions as evidential ones or to abolish their legal effect altogether. In the latter case, most presumptions would continue to have effect as presumptions of fact. Since there is virtually no difference in the effect of those two types of presumption, such a change would, in practice, make little difference to the existing law. Changes of that type are simply not warranted.
[60] As with burden of proof in relation to preliminary questions of fact. One point worth noting in this context, though, is that there do not appear to be any decided cases in which the presumptions mentioned in this paper have proved important in deciding a preliminary question of fact.
[61] ‘Presumption of continuance’; the doctrine of ‘res ipsa loquitur’ under Australian law.
[62] Thayer 278.
[63] id, 279-80. See also JB Thayer, ‘Judicial Notice and the Law of Evidence (1889-90) 3 Harv L Rev 285.
[64] GD Nokes, ‘The Limits of Judicial Notice’ (1958) 74 LQ Rev 63. (cf JF Stephen, A Digest of the Law of Evidence, 2nd edn, 1876 and 3rd edn, 1877, Macmillan, London, ch VII).
[65] ibid.
[66] Wigmore on Evidence, para 2565.
[67] Nokes, 60.
[68] id, 66.
[69] Thayer on Evidence (1898) 289.
[70] See eg B Selinger, ‘Science in the Witness Box’ (1984) 9 Legal Services Bulletin, 108 and A Nagy. ‘Expert Evidence Under Attack—Yet Again’ (1983) 8 Legal Services Bulletin 15, and the public controversy surrounding recent celebrated criminal trials in Australia such as Chamberlain v R [1984] HCA 7; (1984) 58 ALJR 133 and Splatt v R (see Royal Commission Report Concerning the Conviction of Edward Charles Splatt (Splatt Report) Government Printer. South Australia. 1984
48. Relevance of the Purposes of Evidence Law.[1] Before critically examining the laws of evidence and considering proposals for reform, it is vital to identify and allocate priorities to the purposes that the laws of evidence should serve. This proposition may seem trite to some, but in the course of discussions it has been suggested that there is no value in such an exercise. One reason given has been that agreement is not possible. Whether this is so or not, it is vital that the issue be raised for discussion and that the Commission put forward its present views—views that are reflected in the criticisms made of the laws of evidence and that have guided the formulation of proposals.
49. The ‘Child of the Jury’ Theory. A view often expressed is that the laws of evidence developed from a distrust of the jury’s ability to properly assess the evidence placed before it and that they serve the purpose of keeping from the jury evidence which may be misused or misestimated by the jury.[2] If that was the only, or the main, purpose served by the laws of evidence, the direction for reform would be clear—to abolish or at least severely limit the operation of the rules of evidence in nearly all the jurisdictions covered by the reference.
50. In the courts with which this reference is concerned there can be no civil jury trials in the Family Court and the Territory Courts of Petty Sessions. In the other courts, civil jury trial can only be obtained by applying to the court and in fact civil jury trials
• have not taken place in the Federal Court;
• have not taken place in the ACT Supreme Court for at least ten years (the last application for a jury trial in the ACT Supreme Court was made approximately ten years ago and was unsuccessful);
• have not taken place in the other Territories (four jury trials have taken place on Norfolk Island in the last ten years but in criminal matters only);
• have not taken place in the High Court, for many years (the last jury trial in the High Court took place in 1945 in R v Regos and Others, a prosecution under the National Security Regulations—again a criminal matter).
Criminal trials are held before juries in the ACT and Norfolk Island.[3]
51. The proponents of the argument that the laws of evidence are bound up with the need to protect juries usually refer to Thayer’s statement that the law of evidence is ‘the child of the jury system’.[4] It is important to refer to the whole of the passage in Thayer’s Treatise to gain a true perspective on his comment:
When we have said (1) that, without any exception, nothing which is not, or is not supposed to be, logically relevant is admissible; and (2) that, subject to many exceptions and qualifications, whatever is logically relevant is admissible; it is obvious that, in reality there are tests of admissibility other than logical relevancy. Some things are rejected as being of too slight a significance, or as having too conjectural and remote a connection; others, as being dangerous, in their effect on the jury and likely to be misused or overestimated by that body; others, as being impolitic, or unsafe on public ground; others, on the bare ground of precedent. It is this sort of thing, as I said before,—the rejection on one or another practical ground, of what is really probative,—which is the characteristic thing in the law of evidence; stamping it as the child of the jury system.
He refers to the jury only in the context of evidence likely to be misused—presumably for example, the rules excluding hearsay evidence, evidence of prior misconduct and of bad character. When using the term ‘the laws of evidence’ Thayer meant the rules that exclude relevant evidence. His view was that topics such as relevance, judicial notice, presumptions, burden of proof, and parol evidence did not come within the ‘laws of evidence’.
52. Morgan has discussed Thayer’s statement and the interpretation frequently placed on it. He argued persuasively that the interpretation was not supported in history.[5] His thesis was that the exclusionary rules and in particular the hearsay rule, developed in the context of the adversary system. He referred to the arguments that were accepted in the late 17th Century and early 18th Century for the exclusion of hearsay evidence—that the original statement was not made on oath and that the patty against whom it was tendered could not cross-examine the maker of the statement. It was the ‘credulity of witnesses’ not jurors and the demands of an adversary system which led to the creation of the rule against hearsay.[6] Historically, it seems that it was the change in the role of the judge and the involvement of lawyers rather than the jury trial that led to the development of the laws of evidence:
We are left to wonder whether Thayer’s famous thesis that the law of evidence is ‘the child of the jury system’ may require some modification. Our sources show that for two centuries after the medieval self-informing jury had been replaced by the jury of passive lay triers no law of evidence was required. Is it true, then, that ‘the rejection on one or another practical ground, of what is really probative ... is the characteristic thing in the law of evidence: stamping it as the child of the jury system?’ Judge and jury functioned for so long without the law of evidence that it is perhaps too simple to see the law of evidence as the law of jury control. If the judges had continued to dominate jury trial, we doubt that they would have needed to develop the law of proof as an instrument of jury control. But various factors, in particular the rise of-the lawyers, were about to cost the judges their commanding role in the procedure, and thereby to make the jury much more dangerous. The formation of the law of evidence from the middle of the 18th Century is more or less contemporaneous with the onset of lawyerization of the criminal trial. My suggestion, therefore, is that the true historical function of the law of evidence may not have been so much jury control as lawyer control.[7]
Best, too, commented on the role the legal profession played in the development of the laws of evidence. In his Treatise, he discussed the factors causing the development of the laws of evidence and included the allowing of the right of being defended by counsel to persons accused of treason or felony. He commented:
... the necessary consequence ... was that objections to the admissibility of evidence were much more frequently taken, the attention of the judges was more directed to the subject of evidence, their judgments were better considered, and their decisions better remembered.[8]
The fact that the laws of evidence were applied in civil non-jury cases and in particular in the Courts of Chancery by the middle of the 18th Century also suggests that it was the adversary aspect rather than other features such as the use of juries which led to the development of the laws of evidence and explains in part their continued existence.[9]
53. The ‘child of the jury’ thesis does not withstand close examination. At its highest, as Morgan conceded, there existed from a comparatively early date a distrust of jurors’ ability to handle both the law and the facts. He pointed to this as the explanation for the statements that emerged in the 19th Century explaining the hearsay rule on the basis of the frailty of the jury. He argued that distrust of the jury had nothing to do with the origin of the hearsay rule but had exerted a strong influence in preventing or delaying its liberalisation.[10] While the ‘child of the jury’ thesis may be rejected, the significance of jury trial for the rules of evidence must be considered. So too must another significant feature of the trial system referred to above—its adversary procedures. First, however. it is necessary to examine generally the nature and purposes of the trial system if a view is to be formed about the purposes to be served by the laws of evidence. The laws of evidence control what evidence is adduced in a trial, how it is adduced, how it may be considered once it is received, and specify the level of satisfaction required of the tribunal of fact before deciding the issues in a trial. The laws of evidence play a vital role in the trial process and must therefore serve it. They must also recognise any other public interest that may be affected by their operation.
54. A Search for Truth? Lord Maugham said:[11]
I think it will be conceded by all that the object of the legal trial is the ascertainment of truth.
The procedures of a trial support this view:
The language used by judges in the course of trials, and the rules said to control trial procedure and the giving of evidence, are often expressed in terms requiring revelation of the truth. Thus witnesses are required to take an oath to tell the truth. They are subjected to examination and cross-examination so that their assertions as to facts may be checked and verified as far as possible.[12]
However, leaving aside the problem of what is ‘truth’ and the difficulty if not impossibility of establishing ‘the truth’,[13] it is suggested that if the aim of civil and criminal trials is to search for and establish what actually happened in each case then it has to be conceded that our trial system falls well short of its objective. Lord Denning spoke of two objectives:[14]
His (the trial judge’s) object, above all, is to find out the truth, and to do justice according to law.
He did not explain what he meant by ‘do justice according to law’ but went on to refer to ways in which the ‘search for truth’ is limited—the fact that it is the parties who place the material before the judge (and its extent and quality depends on the energy and resources of the parties and their desire for victory) and that both law and tradition prevent the judge from doing more than seeking clarification through his own questioning. It must also be recognised that often one or both parties may not wish to establish ‘the whole truth’. It is also possible for cases to be decided on the basis of assumed facts.[15]
55. If a ‘search for the truth’ were the objective the trial judge would not be prevented from calling witnesses and questioning all witnesses widely.[16] A system similar to the continental system of judicial inquiry where the judge conducts an investigation would more closely resemble a ‘search for truth’.[17]
The nature of the judge’s task is underlined by the rules provided by the law to enable him to decide a case where his mind is not carried to a firm conclusion by the evidence. The rules relating to onus of proof are vital. If the onus is on the plaintiff the judge is able to decide the case by saying that the plaintiff has not proved his case as to tip the scales of probability, or in a criminal case that the prosecution has not proved the matters in issue beyond a reasonable doubt.[18]
What happens is that ‘a new kind of truth is established’.
The facts as found may bear no or only some relationship to the actual facts if they could be revealed; but, subject to special appeals by way of re-hearing, or re-opening of the evidence because of the discovery of new evidence, and so on, the facts as found must be taken as fixed and true for purposes of the case and for the purposes of further proceedings on the case. So that there will be an end to dispute, which there must be at some time if one prime purpose of the law is to be served, the parties involved cannot dispute again about those facts. Here in the shifting uncertainties of the world is one absolute. The facts as found are true.[19]
Necessarily we compromise between the ideal and what is practicable. We accept something other than the truth and do not search for it. However, a trial does involve a serious attempt to reach conclusions about what occurred in the past. This attempt must be examined in the context of the nature and purposes of civil trials and criminal trials.
56. The Civil Trial. The civil trial in our legal system may be described as a method for the resolution of a dispute between plaintiff and defendant.[20] In so doing, it serves the purposes of ordered society:
A law suit is not an abstract scientific investigation to discover absolute truth. It is a very practical affair aimed at resolving disputes between parties within a reasonable time and at a reasonable cost. Consequently the desirability of obtaining the truth must be balanced against the need to resolve disputes expeditiously.[21]
But, the object of a trial `is something more than merely to resolve a dispute, it is to resolve it in a way which is generally, acceptable, or as we usually say ‘just’[22] or ‘morally acceptable’.[23]
57. Professors Hart and McNaughton[24] suggested that:
A contested law suit is society’s last line of the defence in the indispensable effort to secure the peaceful settlement of social conflicts ...In judging the law’s handling of its task of fact-finding in this setting, it is necessary always to bear in mind that this is a last ditch process in which something more is at stake than the truth only of the specific matter in context. There is at stake also that confidence of the public generally in the impartiality and fairness of public settlement of disputes which is essential if the ditch is to be held and the settlements accepted peaceably.
The law does not require absolute assurance of the perfect correctness of a particular decision. While it is of course important that the court be right in its determinations of fact, it is also important that the court decide the case when the patties ask for the decision and on the basis of the evidence presented by the parties. A decision must be made now, one way or the other. To require certainty or even near certainty in such a context would be impracticable and undesirable. The law thus compromises.
They go on to say:
No doubt the method of formal presentation of evidence before an impartial but uninformed tribunal, subject to the rules which such a presentation seems to require, will not always prove the best method of ascertaining the truth about past happenings. The law makes no assumption that it will. It deliberately sacrifices some aids to the ascertainment of truth which might be useful in particular cases in order, partly, to satisfy the practical exigencies of the need for an immediate and definite decision and in order, partly, to serve what are deemed to be more nearly ultimate social values.
To achieve its purposes the civil trial system must command the respect and confidence of parties and the community. This will depend on at least the following.
• Fact-Finding. Although a ‘search for truth’ does not occur, it is nonetheless of critical importance that the courts make a genuine attempt to find the facts—it is an essential vehicle for the successful pursuit of its purposes.[25] If this is not done the system will be seen to be at best arbitrary and at worst biased—we might as well use a machine which would grant ‘judgments by operation of chance’.[26] The system would lose the confidence and respect of the community. Any limitation on the attempt to find the facts requires justification.
• Procedural Fairness. The parties must be given and feel they have had a fair hearing. This will depend in part on the extent to which they have been able to present their case—‘a litigant prevented from supporting his case, ... is bound to feel dissatisfied’.[27] It will also depend upon the extent to which they have been able to challenge and meet the case presented against them. Again limits require justification. This need has been recognised by the law in its development of the concept of natural justice. It requires that each patty is entitled to be given a proper hearing before a determination is made affecting his rights.
For it is a deep-rooted principle of the law that before anyone can be punished or prejudiced in his person or property by an judicial or quasi judicial proceeding he must be afforded an adequate opportunity of being heard.[28]
It is important, for example, to enable a party to cross-examine the other side’s witnesses, in appropriate cases.[29] The fairness of the proceeding will also depend on the conduct of the judicial officer in ruling on the way the patties can present their case and challenge that presented against them—the more arbitrary or subjective it appears to be the less acceptable to all concerned. Another aspect of fairness is the manner in which witnesses are treated in a trial.
It is also important that there be the appearance and, if possible, the reality of control by law rather than judicial whim. Viscount Birkenhead went so far as to defend artificiality, inconsistency and the occasional injustice on this basis:
It is, of course, a commonplace that the decision of legal issues must depend on rigid rules of evidence, necessarily general in their scope and very likely, therefore, in individual applications to present an appearance of artificiality and even of inconsistency. There must be a general code, for otherwise the admission or rejection of evidence would depend upon the caprice of an individual judge; ‘quot judices tot sententiae’ [as many opinions as there are judges]. And it is undoubtedly true that it is even better that some slight degree of injustice should be done in an individual case than that the courts should abandon the sure anchorage of a dependable rule. Such an injustice may occasionally occur, for it is almost a common place that a sensible and experienced person, in the course of reaching a decision as to whether a certain thing has or has not happened, will allow his judgment to be influenced by evidence which would not be accepted in the Courts. Indeed, I have no doubt that judges of the highest eminence reach conclusions in their own private and domestic affairs by reference to a standard more relaxed than the courts allow.[30]
Best strongly supported this view. He stated:
The exclusion of evidence by virtue of a general rule may, in particular instances, exclude the truth, and so work injustice; but the mischief is immeasurably compensated by the stability which the general operation of the rule confers on the rights of men, and the feeling of security generated in their minds by the conviction that they can be divested of them only by the authority of law, and not at the pleasure of a tribunal.[31]
Best argued that the need to limit the discretion of tribunals in determining facts was a very powerful force in the development of the laws of evidence. In referring to tribunals he included both judges and juries. He argued that the power of a tribunal would in fact be absolute if no restraints were imposed on its discretion in declaring facts proved or disproved. Historical evidence to justify his anxiety was put forward in his Treatise where he discussed the free admission of hearsay evidence in State Trials prior to the Revolution of 1688. He cited the cases of Throgmorton, Raleigh, Strafford, Langhorn, the trials for the Popish Plot and others. The English experience of the judiciary had not been such as to encourage a trust in it at that time.[32]
Such statements recognise the fact that judicial officers are ‘human’ and will respond in a particular situation in accordance with their background, personalities and attitudes. Some may be able to apply a total objectivity to matters before them. Some consciously or unconsciously will tend to lean in one direction or another whether it be towards the plaintiff or towards the defendant, towards the prosecution or towards the accused. The truth of these matters has long been recognised by the legal profession, although not often publicly stated:
... judges are not robots. Practising lawyers, therefore, attempt to learn the idiosyncrasies of particular trial judges: Judge Brown is known as a former railroad lawyer, who, fearful of showing favouritism, leans over backwards and is likely to be unduly hostile to railroad. Judge Green, who for years had served in the office of the city’s Corporation Counsel, is partial to municipalities. Judge Blue is markedly puritanical. ...[33]
The dangers in having no rules at all have been referred to by Lord Denning.[34] After citing instances where rental and pension tribunals acted without hearing evidence and without giving the party the opportunity to deal with the evidence, he stated:
But these cases do show that it is not possible to dispense with rules of evidence and procedure altogether. Rough justice may become so rough that it ceases to be justice.
Detailed rules of evidence lend to the trial the appearance of proceedings controlled by the law and not by the individual trial judge’s discretion[35] and reduce the scope for subjective decisions.
• Expedition and Cost. The parties and the community will judge the civil trial system in part by considering its efficiency.[36] Any rules or proposals must be evaluated in the light of their effect on the time and cost of the trial.[37] This is particularly so in the light of current concern about the length of trials.
• Quality of Rules. To the extent that the system operates under rules, the more anomalous, technical, rigid and obscure the rules seem the more the system’s acceptability will be lessened. It must always be borne in mind that in a large proportion of cases one or more of the parties do not have legal representation. Of course those involved in the system can meet the situation by agreeing to ignore or waive the more unsatisfactory rules—as widely happens in the conduct of civil trials at present. Any rules or proposals that are complicated, difficult to understand or apply, produce anomalies, lack flexibility where this is needed or are very technical require justification.
58. The Criminal Trial.[38] Like the civil trial, the criminal trial involves an attempt to establish the facts. Like the civil trial its credibility depends substantially on a genuine attempt being made to establish the facts on the basis of which the final decision is made. The nature and purpose of the criminal trial, however, differs significantly from those of the civil trial. A criminal trial is not directed to resolving a dispute between parties. Although the Crown makes allegations and these are disputed by the accused, the trial is accusatorial and the accused is regarded as innocent until proved guilty. The central question in a criminal trial is whether the Crown has proved the guilt of the accused beyond reasonable doubt. The purpose of the criminal trial is not ‘to find out if the accused is guilty’. The primary and specific object of the system is to be able to say with confidence:
that if there is a verdict of guilty there can be no doubt that the accused did what was charged with the requisite mens rea.[39]
Its larger and more general object is to serve the purposes of the criminal law; which arc to control, deter and punish the commission of crime for the general good.[40] The criminal trial traditionally has been seen to reflect the view that it is in the interest of the community that the risk of conviction of the innocent be minimized even if this may result in the acquittal from time to time of the guilty.[41] Like the civil trial, however, a criminal trial is not a search for truth. Sallman has argued:
there is a fundamental idea in liberal, common law societies that ‘truth’ and convictions of ‘guilty’ persons are not to be pursued and obtained at virtually any cost. The very essence of our system is certainly that conviction of the guilty is important for a number of reasons but that for a whole host of other reasons accused persons are entitled to the benefits of certain rights and protections as a matter of recognition of their personal dignity and integrity, and also, on a far broader scale, as a measure of the overall fairness of the society to the individuals within it. At a somewhat different level it is obviously important, strategically and philosophically, to arm an accused person with some protections just in order to give credibility, if not substance, to the idea of the adversary system as a genuine contest between more or less equally placed forces, rather than a heavily one-sided affair.[42]
The serious consequences of conviction, fear of error, a concern for individual rights and fear of abuse of governmental power have limited the search for truth in criminal matters.[43]
59. This view of the nature and purpose of the criminal trial is of long standing and represents what has been described as a civil libertarian view of the criminal trial. It is praised by some on the basis that we prefer to risk the acquittal of the guilty rather than risk the conviction of the innocent—‘it is better that nine guilty men should escape than that one innocent man should be wrongly convicted’.[44] The fallibility of the existing system, depending as it does upon human perception, memory, and recapitulation at all stages of the proceedings must be borne in mind. It is also said to be justified by the seriousness of the matters involved, and by the imbalance of resources that generally exists in the prosecution and the adversary trial of criminal offences. It has also been argued that it represents the learning of the lessons of history which unfortunately are repeated around us today in totalitarian countries.[45]
60. The differences in approach are reflected in the different procedural and evidentiary rules in civil and criminal proceedings. For example, different rules operate in relation to ‘no-case to answer’ submissions. In civil proceedings it is rare for such a submission to be made at the end of the plaintiff’s evidence and, when it is made by the defendant, the defendant will usually be required to elect not to call evidence before being allowed to continue with the submission. In criminal proceedings, however, a no-case submission is often made at the end of the prosecution evidence and the accused is not obliged to make an election. The different standards of proof in civil and criminal proceedings also reflect the different nature and purposes These differences are also reflected in the accused’s right to lead evidence of good character and the rules which limit the cross-examination of the accused on questions of bad character. No comment is generally permitted on the failure of the accused to give evidence. There is also in criminal proceedings the judicial discretion to exclude evidence, even if relevant, on the ground that its probative value is exceeded by its prejudicial value.[46] The emphasis reflects the gravity of criminal proceedings and society’s choice of preferring the risk of acquittal of the guilty to the risk of the conviction of the innocent.
61. A balance is struck in favour of the accused within the criminal trial. In addition to the matters mentioned above, a lower standard of proof applies to issues to be established by the accused. There are elaborate rules requiring warnings to be given in respect of evidence of prosecution witnesses (such as accomplices, children victims of sexual assault), the inability generally of the accused to make formal admissions, and the requirement that a confession of the accused be shown to be voluntary before it is admitted. The prosecution, at least in serious cases, must disclose its evidence at committal hearings and the prosecutor is expected to serve the interests of justice and disclose favourable evidence to the accused. The accused (except in the case of alibis in some jurisdictions) is under no obligation to disclose his case in advance.
62. Like the civil trial, however, the acceptability of the criminal trial system will depend upon its performance in the same areas as those which affect the acceptability of the civil trial. The extent to which the trial is seen to be controlled by impersonal law rather than arbitrary or subjective decision will affect its acceptability—particularly as it affects the accused. The efficiency of the system and the quality of its rules will also affect its acceptability. However, the concern to minimise the risk of convicting the innocent may justify different approaches to the admissibility and testing of evidence for the prosecution and the accused—for example, demanding a better quality of evidence from the prosecution. It may affect views on the appropriate time and cost of criminal litigation. The way the balance is struck between the prosecution and the defence is of critical importance.[47]
63. Introduction. In identifying the purposes to be served by the rules of evidence it is necessary also to consider the implications for the laws of evidence of two special features of our trial system its adversary nature and the use of juries. Both have been referred to but require closer analysis.
64. The Adversary Nature of the Civil and Criminal Trial. Reference has been made to ‘two distinct principles’[48] embodied in the adversary system:
• Party Autonomy. The parties have the right to pursue or dispose of their legal rights as they wish. In addition the parties define the dispute.[49]
• Party Prosecution. The parties have the right and the responsibility to choose the manner in which they will go forward with their case and the proof they will present to support it. They including the accused[50]—must live with the consequences of those choices. The judge’s role is to umpire and, in non-jury cases, evaluate passively the merits of the case as and when it is presented to him.[51] This is reflected under Australian law. As a general proposition, the trial judge cannot on his own motion call a witness.[52] The trial judge has a limited power to question witnesses provided he does not lose his neutrality or interfere in the party presentation of the case.[53]
The adversary system of trial is to be compared with the systems of trial employed in many countries in Europe. The latter trial systems involve[54] a judicial inquiry with the result that it is neither feasible nor necessary to control the evidence by rules at the stage of its presentation to the court. Generally the decision is based on the ‘intimate conviction’ of or ‘free evaluation’ by the tribunal, which requires the tribunal to consider all relevant material and give it such weight as is appropriate. In addition, evidence in some jurisdictions is presented in written form as collected by a judicial officer. These features are absent from the common law adversary system. It is not surprising, therefore, that there is no law of evidence as we know it in such systems. This is not to say that some rules and practices have not developed in continental systems in relation to the questioning of witnesses, the competence and compellability of witnesses and the use to be made of evidence that is admitted.[55]
65. The Consequences of the Adversary Trial. A contest such as an adversary trial where the parties have the responsibility of selecting, presenting, objecting to and testing evidence requires a body of rules to guide and control the participants—the judge and the parties—if it is to be managed efficiently. The parties, for example, need rules to guide and control them on issues such as what evidence is to be placed before the court, how they can place evidence before the court, what persons can give evidence and what limits may be placed on the testing of the evidence.
66. A consequence of the adversary system for the laws of evidence is that there needs to be an appropriate level of predictability of operation of those rules which affect who may be called and compelled to give evidence, when formal evidence is required and what evidence may be admitted. Without it, it is difficult for parties to prepare for trial. Predictability is not so important for those rules of a procedural nature—for example, the swearing of witnesses and the questioning of witnesses although it assists in the smooth running of the trial if satisfactory detailed rules exist. Further, without a body of rules it would be more difficult to control trials through appellate review and that review in turn would be unpredictable.[56]
67. What is an appropriate level of predictability is a difficult question. The more detailed and precise the rule, the more difficult it may be to understand and the more rigid it is likely to be in its application. The more general the language used the more flexible it will be but the less predictable will be its application,—the judges will vary in- their approach. The issue is central to the approach to be taken in reform proposals. The debate within and without the Commission has centered on whether to minimise or maximise judicial discretions.[57] The approach taken in the proposals has been to attempt to draft rules as the first option. Where this has not proved possible—for example, where the competing policy issues and the likely widely differing fact situations make rules impossible discretions have been formulated.
68. Jury Trial. Reference has been made to the view that the laws of evidence have as one of their purposes keeping from the jury evidence which may be misused or misestimated by the jury.[58] Expressed in terms of the above discussion, the law protects the fact-finding process. In criminal trials it recognises the objective of minimising wrongful convictions. Should there be separate rules designed for jury and non-jury trials? Jury trials do take place to a limited extent in the courts with which this reference is concerned. The Federal and Territory courts have not in recent years had jury trials in civil matters but they have in criminal trials in the ACT and Norfolk Island.[59] It is possible, however, in the Federal Court, the Supreme Courts of the Territories and in the High Court to have jury trial by leave in civil matters. Whatever may be the quality of jurors, they are not specifically trained for their task. Thus the issue has some relevance. It is an issue, also, that has loomed large in discussion of reform of evidence law.
69. Professor Davis argued for a new approach to the laws of evidence on the following basis:
The thinking should reflect primarily the needs of the 97% of trials that are without juries. We should undertake for the first time to prepare a set of rules or standards for non-jury trials. Then the main set of rules or standards can be qualified or modified to fit the peculiar needs of the small minority of cases that are tried before juries ... Precise and rigid rules of evidence should give way to discretion to be exercised under broad legal standards ... The test of sufficient evidence to support a finding should not be jury-trial rules of admissibility but should be ‘the kind of evidence on which responsible persons are accustomed to rely in serious affairs’.[60]
The further point can be made that it is difficult for a court to apply rules of exclusion to itself. Evidence, subsequently ruled inadmissible, may leave an impression impossible to eradicate.[61]
70. Ambivalent Attitude to Juries. Rightly or wrongly there exists an anxiety about the jury’s ability to evaluate certain kinds of evidence. This anxiety verges on distrust. One has only to consider the extensive body of law that has built up consisting of directions to be given to juries, the frequent departure of the jury from the court while an argument about admissibility of evidence is heard, and the care generally taken to control what is placed before a jury. While distrust of the jury may not have given rise to the exclusionary rules, it is still expressed as a justification for them.[62]
71. At the same time, trial by jury is praised, particularly for criminal trials. For example, Lord Devlin sees the jury as a protector of our liberty:
The jury cannot fight tyranny outside the law, but it ensures that within the law liberty cannot be crushed.
He also sees the jury as performing an important role in our society:
Through the jury the governed have a voice not only in the making of the laws which govern them but in their application. It is good for a nation when its people feel that in the gravest matters justice belongs in part to them.[63]
In voicing this praise of the jury, Lord Devlin was not commenting on its abilities in evaluating evidence. He does, however, discuss this aspect and has suggested that while a judge may be better equipped than a jury for the task of drawing inferences and reaching sound conclusions, a jury is better able than a judge to determine whether and to what extent a witness is telling the truth. He states:
No way has been found of gaining the superiority of the jury as judges of the primary facts without being saddled with their inferiority as judges of the secondary.[64]
72. An ambivalence is still to be found. An American judge, Judge Talbot Smith has stated:
Thus we confront this paradox: in our speeches on Law Day USA we attribute to the jury an acuity and an understanding which, we insist with Blackstone, renders it ‘the glory of the English law’. Yet we will not permit it to hear a simple narration without the application of ‘rules’ of evidence, obstructive, time consuming and witness-choking, all grounded upon the proposition that the jury is not capable of reasonable discernment. ‘The courts’ said the Supreme Court ‘long ago were afraid to trust the intelligence of jurors’.[65]
In addition, the point is often made that we require the judge to give directions to juries on the use that they may or may not make of evidence, mainly in criminal trials, which require a level of mental skill and rationality of a juror that is very high indeed. At the same time it is often said that such directions are given presumably because juries are not thought to have the mental skill and rationality to make proper use of the evidence without them.[66] Professor Brooks has commented.
Juries are assumed for some purposes to be imbecilic while for other purposes they are assumed to have mental powers that operate with computer-like precision. For example, it is assumed that, from evidence of the witness’s previous consistent or inconsistent statement, the jury can draw an inference about the witness’s credibility without, at the same time, drawing an inference about the truth of the facts asserted in the previous statement. (As in all these examples, the jury is assumed to be capable of drawing the former inference, incapable of rationally drawing the latter, yet brilliant enough to be able to distinguish between them and draw the former but not the latter. when so instructed by the Judge, even though both inferences logically suggest themselves) ... A further assumption is that the jury can from the statement made by one co-accused which implicates both accused draw an inference of guilt in respect of the accused who made the statement, but put the statement completely out of its mind when considering the guilt of the other accused. Finally, we assume the jury can draw an inference about the accused’s credibility from evidence of the accused’s past criminal conduct but not, at the same time, draw direct inference about the accused probable guilt.[67]
73. It can be argued, however, that we do not make such conflicting assumptions. For example, in the case of directions to the jury it can be argued that they are given simply because the jury has no knowledge of the laws of evidence. The detailed distinctions which are part of our laws of evidence are often very fine. They require the courts to take a technical approach to questions of admissibility and of the use to be made of evidence that has been admitted. It may well be ‘throwing a skunk to the jury’[68] to direct it that the admission made by one accused may be used as evidence against that accused but not against the other accused. Nonetheless this direction flows as a natural consequence from the laws of evidence. It further reflects a view that it is unsafe to use against one accused the admission made by another. Confronted with the situation where there is a trial of several accused and one has made admissions which implicate the other accused, what is to be done? Do we treat the evidence as admissible against the other accused? If not, do we not have to tell the lay tribunal that it cannot use the evidence in that way`? Is the jury to be left without any guidance or should an attempt at guidance be made?[69]
74. Thus it can be argued that no conclusions should be drawn from the directions given by judges to juries about our assumptions about jurors abilities. In particular, the directions given to juries do not necessarily reflect a distrust of the juror’s ability to assess evidence. It is necessary to look elsewhere in forming a view as to the ability of jurors to handle and assess evidence. This ability must then be assessed against that of judges and magistrates before it can be concluded that there should be separate rules for jury and non-jury trials. Whether judges and magistrates, notwithstanding their experience, will not also have great difficulty in handling and assessing evidence is open to question.
75. The Abilities of Juries, Judges and Magistrates. A major difficulty in resolving the issue is how to assess the required abilities. The general level of education in the community is far higher than in the early 19th century when judicial concern was also expressed about juries’ abilities. IS this alone sufficient to allay fears about juries’ ability to assess, use and weigh evidence? Is a higher level of education all that is required? Research has been done to attempt to test jury ability but it is not possible to monitor the deliberations of actual juries because of the secrecy of the jury room—itself designed to uphold the integrity and independence of the jury. Such investigations as have been done have necessarily, therefore, been somewhat indirect—the study of ‘mock’ juries and comparisons of jury verdicts with the views of the judges, lawyers and police involved. The results of these studies, while not conclusive, do not support the view that juries are, on the whole, likely to be incompetent and incapable of properly assessing, using and weighing evidence in the context of our present jury trial system (with its directions and laws controlling the admission of evidence). At the same time they do not assist us directly in forming a view as to whether exclusionary rules could be safely abandoned with or without suitable directions to juries about the use to be made of evidence admitted as a result.[70] The research does suggest, however, that some juries are capable of responding appropriately to directions, although the results vary.[71]
76. The further question remains of whether judicial officers are necessarily better equipped than jurors to assess evidence. Love comments:
... even a superabundance of formal qualifications does not guarantee against quirks of decision deeply rooted in psychological makeup. There being a justifiable doubt as to whether the difference in fact-finding ability is great between the judge and the jury, it appears to be highly questionable whether the ordinary rule of evidence should be abandoned when the judge is sole trier of the facts.[72]
If the view is taken that legal experience better equips a person to assess and use evidence correctly, it must be remembered that the experience of the judiciary in actions involving witnesses and evidence prior to appointment varies considerably. Furthermore, a large amount of litigation in Australia continues to be handled by lay, as opposed to legally qualified magistrates. In the territories, other than the Australian Capital Territory, lay magistrates hear cases.[73]
77. Love argued for the same rules to apply to jury and non-jury proceedings except in relation to opinion evidence and in relation to interlocutory proceedings. As to hearsay he argued that:
he proved misleading effect of hearsay speaks strongly against its admission for even experienced judges.[74]
Professor Nokes has considered the matter and also queries the validity of drawing a distinction between the two types of trial—jury and non-jury. He has commented:
No common lawyer probably wishes to abolish the whole of the law of evidence; indeed some exclusionary rules have a basis unconnected with the jury—for instance those related to privilege, as well as the remnants of the best evidence rule; so it may be well to continue to consider the problem of reform in relation to hearsay alone. Further, the absence of a jury does not necessarily connote a tribunal of fact which is competent to assess hearsay ...[75]
78. Wigmore shared the above doubts about the extent to which the absence of a jury should affect the laws of evidence. He prepared a ‘Summary of evidence Principles for a Non-Jury Tribunal’. This was a detailed statement which provided for the exclusion, amongst other things, of evidence of bad character and of hearsay evidence.[76] This was done partly out of caution and partly because of ‘the human nature of judges, witnesses, parties and counsel and the poor quality of the judiciary and the lawyers’. He also emphasised the need for a fair hearing. In relation to hearsay, he states specifically that it should be excluded because it cannot be tested.[77]
79. The Consequences of the Jury Trial. We should not conclude that there is necessarily such a difference between the abilities of judicial officers and jurors that quite different rules should be developed for jury and non-jury trials. Rather, for the purposes of this reference the distinction between civil and criminal trials is more important than the distinction between jury and non-jury trials. For example, if the view is taken that juries can be relied upon to weigh hearsay evidence satisfactorily, there may be other reasons why such evidence should be excluded from criminal trials except in clearly defined circumstances. The nature and purposes of criminal proceedings may dictate such an approach. On the other hand, if the view is taken that there is a risk with juries that they will not adequately assess hearsay evidence, the overriding, although not the only, consideration may still be whether the trial is a criminal one or a civil one. As noted above, there can be no civil jury trials in the Family Court and the Territory Courts of Petty Sessions. In the other courts civil jury trials can only be obtained with leave and have not occurred for many years. It may be added that considerations of time, cost and fairness—none of which have any connection with the quality of the tribunal warrant control over unreliable and dangerous evidence.
80. Policies Not Connected with the Trial System. The laws of evidence include many rules that are based on policy considerations not connected with the trial system. Examples include exceptions to the general competence and compellability of witnesses, privileges;[78] and rules designed in whole or in part to protect civil liberties and discourage police misconduct—confessions must be voluntary; and the discretions to exclude unfairly obtained confessions and improperly obtained evidence. The policies behind such rules have been examined critically and the conclusion reached that they should continue to be recognised. Some modifications have resulted in the areas of competence, compellability and privilege. They are discussed in detail in the commentary to the proposals.
81. Guiding Principles: Review of the Law. In examining the existing law, consideration has been given to whether it serves the foregoing objectives. So concentration has focussed upon whether the rules of evidence:
• adequately reflect their alleged rationale and other relevant policy considerations;
• are unnecessarily uncertain;
• exclude probative evidence;
• operate unfairly on parties and witnesses;
• are too complex to be understood or applied;
• add to costs and time both in and out of court.
82. Guiding Principles for Proposals. Where the view has been taken that the criticisms of the law cannot be answered satisfactorily, proposals for change have been prepared. The problem facing the reformer, though, is the way to balance the competing goals.[79] A framework has been used in which pre-eminence is given to the fact-finding task of the courts. The credibility of the trial system ultimately depends on its performance in this area. So the proposals are directed primarily to enabling the parties to produce the probative evidence that is available to them.[80] Departures from this position require justification—for example, balancing fairness, considerations of cost and time.
83. In this exercise the different nature and objectives of the civil and criminal trial have been taken into account—although law reform bodies and commentators have at times argued against developing a separate body of rules.[81] Issues equal to or approaching the seriousness of those raised in criminal proceedings are raised at times in civil proceedings—for example questions of fraud, bankruptcy, divorce and custody proceedings. However, individual liberty and civil liberties are at stake in criminal trials. Also, the distinctions drawn between the essential nature and purposes of civil and criminal proceedings still apply whether the allegations made in the proceedings are of fraud and whether the proceedings relate to bankruptcy, divorce or custody.
84. A more stringent approach has been taken to the admission of evidence against an accused person (as against the admission for the accused’s benefit) and the admission of such evidence is determined by the application of detailed rules rather than by the application of judicial discretions. The distinction has been recognised in other areas—for example, the compellability of the accused, cross-examination of the accused, and unsworn evidence by the accused. At other times the distinction is referred to where the court is directed to have regard to the nature of the proceedings.[82] In criminal trials, the effect of reforms on the balance between prosecution and defence has been borne in mind at all times.
85. A less detailed and more flexible approach has been taken to the admissibility of evidence in civil proceedings. In general, the endeavour has been, subject to constraints of fairness and costs, to permit a party to tender all of the relevant evidence that it has.
86. The proposals also reflect a bias towards minimising judicial discretion—particularly, in those rules controlling the admissibility of evidence. Wherever possible, the proposal is presented in the form of a rule. Only where the relevant policy considerations prevent this have proposals in the form of discretions been advanced. It must be remembered that rules of evidence, unlike rules of substantive law, ‘must often be applied by the court without substantial time for reflection’.[83] A rules approach tends to be more certain, easier to implement and thus less time-consuming than a discretionary approach. In many contexts, therefore, they are more satisfactory for court use.
87. At all times consideration has been given to the impact of change on the time and cost of litigation and on the time and cost of activities outside the court. At all times clarity and simplicity has been the objective. The experience of previous reforms in the areas of hearsay and reproductions of documents demonstrates that complex reforms tend not to be used.
88. The application of these competing policy considerations is discussed further in the context of particular proposals.
89. It is proposed in the next part of this report to discuss the first major issue on which the Commission is asked to report—the issue of whether and to what extent there should be uniform comprehensive laws of evidence applying in federal and Territory courts.
[1] The issues discussed in this chapter were discussed initially in Australian Law Reform Commission, Issues Paper No 3, Reform of Evidence Law, Sydney, 1980 (ALRC IP 3).
[2] JA Love, ‘The Applicability of the Rules of Evidence in Non-Jury Trials’ (1952) 24 Rocky Mountain L Rev 480; KC Davis, ‘An Approach to Rules of Evidence for Non-Jury Cases’ (1964) 50 Am Bar Ass J 723; GD Nokes, ‘The English Jury and the Law of Evidence’ (1956) 31 Tulane L Rev 153; T Smith, ‘The Hearsay Rule and the Docket Crisis: The Futile Search for Paradise’ (1968) 54 Am Bar Ass J 231; JW Hall, ‘Roscoe’s Digest of the Law of Evidence on the Trial of Civil Actions’ (1935) 51 LQ Rev 405; R v Deputy Industrial Injuries Commissioner [1965] 1 QB 456, 488 (Diplock LJ); P Devlin, The Judge, Oxford University Press, Oxford, 1981, 62; P Devlin, Trial by Jury, Methren & Co, London, 1966, 11 3-6; Law Reform Committee, England and Wales, Thirteenth Report Hearsay Evidence in Civil Proceedings, HMSO London. 1966, Cmnd 2964, para 7; New Zealand Torts and General Law Reform Committee, Report, Hearsay Evidence, Government Printer, Wellington, 1967, Para 7(iv); Tasmanian Law Reform Committee, Law of Evidence—The Hearsay Rule, Working Paper prepared by Sir SC Burbury, Hobart, 1970 27 (Tas LRC WP 1970); N Brooks, ‘The Law Reform Commission of Canada’s Evidence Code’ (1978) 16 Osgoode Hall LJ 241, 249-52; see discussion in New South Wales Law Reform Commission, Report No 29, The Rule Against Hearsay, Government Printer, Sydney, 1978, para 1.2.7 (NSWLRC 29); Berkeley Peerage Case [1811] EngR 290; (1811) 4 Camp 401, 415; [1811] EngR 290; 171 ER 128, 135 (Mansfield CJ); Wright v Tatham [1837] EngR 853; (1837) 7 Ad & E 313, 389: [1837] EngR 853; 112 ER 488, 517 (Parke B)
[3] Four jury trials took place on Norfolk Island in the period 1977-1980. Convictions were recorded in all four cases.
[4] JB Thayer, A Preliminary Treatise on Evidence at the Common Law, Little, Brown & Co, Boston, 1898 (Reprinted 1969 by Rothman Reprints, New Jersey) 266; JH Wigmore, A Treatise on the Anglo-American System of Evidence, 3rd edn, Little, Brown & Co, Boston, 1940, vol 1, para 8a; W Holdsworth, A History of English Law, 3rd edn, Methuen & Co, Sweet & Maxwell, London, 1944, vol 9, 127.
[5] EM Morgan, Some Problems of Proof under the Anglo-American System of Litigation, Columbia University Press, New York, 1956, 106-17; American Law Institute, Model Code of Evidence, Philadelphia, 1942, 36. 218; EM Morgan, ‘The Jury and the Exclusionary Rules of Evidence’ (1937) 4 U Chi L Rev, 247; R Cross ‘A Short Reply’ [1965] Crim L Rev, 97.
[6] JH Langbein, ‘The Criminal Trial before the Lawyers’ (1977) 45 U Chi L Rev, 263.
[7] id, 306.
[8] WM Best, A Treatise on the Principles of Evidence, Sweet, London, 1849 (Reprinted 1978 by Garland Publishing, New York & London) para 109.
[9] Holdsworth, 127ff; Wigmore on Evidence, para 4; Re the jury trial—see below. For recent discussion of issues see Justice RW Fox, ‘Expediency and Truth-Finding in the Modern Law of Evidence’ in E Campbell & L Waller (ed) Well and Truly Tried, Law Book Co, Sydney, 1982, 154-9.
[10] RW Baker, The Hearsay Rule, Pitman & Sons, London, 1950, 11-2: did not accept Morgan’s view. He relied on statements of judges and writers in the 19th Century to the effect that the hearsay rule owed its origin to the jury and argued that this remained the case to the present day. He also relied on the emergence of the laws of evidence with the change of the jury from a group of witnesses to triers of fact, the development of the use of witnesses and the focussing of attention on the quality of their evidence. If the statement that the laws of evidence are ‘the child of the jury’ means no more than that the changes listed by Baker led to its development, Morgan would agree: Morgan (1956) 106ff. Where he disagreed was with the suggestion that the exclusionary rules, and in particular, the hearsay rule owed their origin to a distrust of the jury’s capacity to evaluate evidence. In this he was supported by early textbook writers who did not offer this as an explanation for the rules: G Gilbert, The Law of Evidence, 1754 (Reprinted by Garland Publishing, London, 1979) 107-8; Best, para 327ff; JB Matthews & SF Spear, Taylor on Evidence, 11th edn, Sweet & Maxwell, London, 1920, vol 1, 567ff (but note para 571ff where Taylor speaks of the rule excluding hearsay evidence as being ‘in general admirably calculated for trials before popular tribunals’ and goes on to refer to the case of Wright v Tatham [1834] EngR 220; (1838) 7 Ad & E 3; 110 ER 1108); S Greenleaf, A Treatise on the Law of Evidence, 9th edn, Little, Brown & Co, Boston, 1859, 138-9, 185. Reasons advanced include that witnesses must be cross-examined, that it is not the best evidence, that it has intrinsic weakness, that there is a potential for fraud, that the statement was made not on oath and was not observed by the court, and the risk of increased expense and vexation to the adverse party brought about by the need to rebut or explain the hearsay evidence with a possible multiplication of collateral issues.
[11] FC Maugham ‘Observations on the Law of Evidence with Special Reference to Documentary Evidence’ (1939) 17 Can Bar Rev 469.
[12] DP Derham, ‘Truth and The Common Law Judicial Process’ (1963) 5 Malaya L Rev 338, 342.
[13] ibid; JB Weinstein, ‘Some Difficulties in Devising Evidentiary Rules For Determining Truth in Judicial Trials’ (1966) 66 Columbia L Rev, 223, 229-30—eg, relying upon eye witness testimony—Fox in Campbell & Waller, 175-6.
[14] Jones v National Coal Board [1957] EWCA Civ 3; [1957] 2 QB 55, 63; see also Fox in Campbell & Waller, 140; Derham, 338ff; Air Canada & Others v Secretary of State for Trade & Another, 119831 2 AC 394, 410-411; (Lord Denning MR) Whitehorn v R [1983] HCA 42; (1983) 57 ALJR 809, 819 (Dawson J). Compare the Ontario Law Reform Commission, Report on the Law, of Evidence, Government Printer. Toronto, 1976 (OLRC 1976) xi:
... the laws of evidence form a vitally important part of the judicial process in the search for truth ... There must be guidelines which control the admissibility of evidence, but the guidelines must be such that they will not defeat the tribunal in its search for truth.
[15] McInerney J, Submission (15 January 1981).
[16] R Eggleston, ‘What is Wrong with the Adversary System?’ (1975) 49 ALJ 428; RS Chorley, ‘More Thoughts on the Problem of Trials’ (1950) 25 NYUL Rev 513. Compare the analysis in GR Miller & FJ Boster, ‘Three Images of the Trial: Their Implications for Psychological Research’ in BD Sales (ed) Psychology in the Legal Process, Spectrum Publications, New York, 1977, 19.
[17] M Damaska, ‘Evidentiary Barriers to Conviction and Two Models of Criminal Procedure: A Comparative Study’ (1972-73) 121 U Penn L Rev 506, KH Kunert, ‘Some Observations on the Origin and Structure of Evidence Rules Under the Common Law System and the Civil Law System of ‘Free Proof’ in the German Code of Criminal Procedure’ (1966-7) 16 Buff L Rev 122; J Frank, Courts on Trial, Princeton University Press, Princeton, 1949, ch 6—The ‘Fight’ Theory v The ‘Truth’ Theory, 80-102.
[18] Derham, 344.
[19] ibid.
[20] Chorley, 513; Derham, 346.
[21] Law Reform Commission of Canada, Report on Evidence, Information Canada, Ottawa, 1975 (LRC Canada 1975) 52; EM Morgan, ‘Hearsay Dangers and the Application of the Hearsay Concept (1948-49), 62 Harv L Rev 177, 184-5.
[22] Chorley, 513; see also HA Hammelmann, ‘Hearsay Evidence, A Comparison’ (1951) 67 LQ Rev 67, 78; DM Doret, ‘Trial by Videotape—Can Justice Be Seen to Be Done’ (1973-74) 47 Temple LQ 228, 254, 267.
[23] KL Chasse, Re-Assessing the Law of Evidence, Department of Justice, Ottawa, 1977.
[24] H Hart & J McNaughton, Evidence and Inference in the Law in D. Learner (ed) Evidence and Inference (1958) 48-59.
[25] Neasey J, Submission (15 April 1981).
[26] Weinstein, 243. As to the importance of a genuine attempt to find the facts see the critical view of the present trial system as a ‘battle of wits’ by W Clifford, Discussion Paper 1, in The Criminal Trial on Trial, Institute of Criminology, Sydney University Law School, No 53, Government Printer, Sydney, 1982, 71.
[27] id, 246.
[28] The Commissioner of Police v Tanos [1958] HCA 6; (1957-58) 98 CLR 383, 395 (Dixon CJ and Webb J).
[29] Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; 2 ALD 33, 54.
[30] Rutherford v Richardson [1923] AC 1, 5.
[31] Best, para 38.
[32] id, para 105; Langbein, 263; Wigmore on Evidence, para 8(3).
[33] Frank, 154-5; see also J Frank, Law and the Modern Mind, Stevens & Sons London, 1949, 104-6. Frank, however, did not argue from this that there was a need for detailed and rigid rules to control the judiciary. His view was that this was no protection—that rules and discretions were at best constraints. (131-8).
[34] A Dennning, Freedom Under the Law, The Hamlyn Lectures, Stevens & Sons, London, 1949, 89-90.
[35] cf Devlin (1981) 198.
[36] Weinstein, 245-6, in comparison—Ease in prediction and application of rules is desirable in the case of any procedural rule. A rule successful in this respect assists in economizing resources since the lawyer will know what he must be prepared to do at the trial. It also assists in inspiring confidence by insuring impartiality and can be easily applied without a great deal of thought.
[37] For recent discussion see Fox in Campbell & Waller, 142.
[38] For recent discussions of the nature and purpose of the criminal trial see Proceedings of the Institute of Criminology, Sydney University Law School: No 48 Criminal Evidence Law Reform (1981); No 53 The Criminal Trial on Trial (1982) Government Printer, Sydney; B MacKenna, ‘Criminal Law Revision Committee’s Eleventh Report: Some Comments’ [1972] Crim L Rev, 605, 606.
[39] Fox in Campbell & Waller, 153.
[40] Neasey J, Submission (15 April 1981).
[41] A Muir, ‘The Rules of the Game’ [1973] Crim L Rev 341, 342; Devlin (1981) 110-6; GC Emslie, ‘The Role of Judges in Society in Scotland’ (1974) 19 JLS Sc 205, 208; United Kingdom, Hansard (H of L) vol 338 (14 February, 1973) col 1603 (Lord Salmon); Justice, Evidence of Identity, Memorandum of Evidence to Lord Devlin’s committee, British Section of the International Commission of Jurists, London, 1974. The views of Justice Cross reported in Sydney Morning Herald (11 September 1980). See also PS Atiyah, ‘From Principles to Pragmatism: Changes in the Function of the Judicial Process and the Law’ (1979-80) 65 Iowa L Rev 1249; DE Harding, ‘Modification of the Hearsay Rule’ (1971) 45 ALJ 531, 557; EF Bunt, Commentary in The Criminal Trial on Trial, No 53, 58, 65.
[42] PA Sallmann, ‘An Examination of some Criticisms of the Criminal Trial’ in The Criminal Trial on Trial No 53, 28; also published under title, ‘The Criminal Trial on Trial: A Response to Some Recent Criticisms’ (1983) 16 ANZ Journal of Criminology 31. The advantages of the prosecution, in most cases, include—selecting the charge (eg conspiracy); professional prosecutors who are usually more experienced than defence counsel: experienced witnesses; the accused is placed in the dock, preparation of defence case is difficult where the accused is in custody. Note also that there are usually less cost and time restrictions affecting the prosecution in its investigation and preparation. Note also, the imbalance is said to be reduced in NSW under the public defender system.
[43] Damaska, 583, 588: Re Ratten [1974] VicRp 26; [1974] VR 201, 214; R v Lucas [1973] VicRp 68; [1973] VR 693, 705-6.
[44] L Radzinowicz, ‘Illusions About Crime and Justice’ in MJ Lasky & A Thwaite (ed) Encounter, London (February-March 1981) 31, 38; JP Widgery, ‘The Balance of the Criminal Law Trial’ [1972] NZLJ 478—‘it is more serious for an innocent man to be convicted than it is for a guilty man to go free’.
[45] ibid.
[46] MacKenna, 606.
[47] For discussion of the ‘balance’ in the pre-trial investigation stage, see Royal Commission on Criminal Procedure, England and Wales, Report HMSO London 1981, Cmnd 8092, para 1.11-1.31.
[48] N Brooks, ‘The Judge and the Adversary System’ in AM Linden (ed) The Canadian Judiciary, Osgoode Hall Law School, York University, Toronto, 1976, 89, 93: see above para 43, 44.
[49] id, 93-6. Those propositions may be qualified—the judge can deny parties the right to be heard, give summary judgments, direct separate trials and amendments to the presentment.
[50] Re Ratten [1974] VicRp 26; [1974] VR 201, 214.
[51] Brooks in Linden, 96-7.
[52] In criminal trials in Victoria he may recall a witness called by a party. Note, however, the recent decision of the NSW Court of Criminal Appeal in asserting the right in criminal trials: R v Damic (1982) 6 A Crim R 35 (criticised by Dawson J in Whitehorn v The Queen [1983] HCA 42; (1983) 57 ALJR 809, 819-20. If the parties consent, however, he may do so. See Re LG Hayes Williams [1926] NSWStRp 42; (1926) 26 SR (NSW) 383; Titheradge v R [1917] HCA 76; (1917) 24 CLR 107; Show v R [1952] HCA 18; (1952) 85 CLR 365; Richardson v R [1974] HCA 19; (1974) 48 ALJR 181, 183; EJ Edwards, ‘The Power of the Judge to Call Witnesses’ (1959) 33 ALJ 269, 273.
[53] Jones v National Coal Board [1957] EWCA Civ 3; (1957) 2 QB 55; R v Olasiuk (1973) 6 SASR 255; Gibson and Gibson [1981] FamCA 46; (1981) FLC 91-049 Family Law Regulations, reg 91; Evidence Ordinance 1955 (Singapore) as applied to the Christmas and Cocos-Keeling Islands, s 166-7.
[54] For discussion and criticism of both the common law and continental systems see for example Frank (1949) ch 6, 80-102 Eggleston, 428; PD Connolly, ‘The Adversary System—Is It Any Longer Appropriate?’ (1975) 49 ALJ 439: Devlin (1981) ch 3; OLRC 1976, 3-11; LRC Canada 1975. 3: Damaska. 506: Hammelmann, 67: CJ Hamson. ‘The Prosecution of the Accused—English and French Legal Methods’ [1955] Crim L. Rev 272; AC Wright. ‘French and English Civil Procedure: A Parallel’ (1926) 42 LQ Rev 327; JH Merryman, Civil Law Tradition, Stanford University Press, Stanford, 1969, 120-39; Committee on Supreme Court Practice and Procedure. England and Wales, Final Report, HMSO. London, 1983, Cmnd 8878, 84-87; Brooks in Linden. 89ff; GEP Brouwer, ‘Of Gladiators and Grand Inquisitors’ (January 1980): MD Kirby, ‘Do We Really Have to Kill the Laywers First?’ Paper presented to the Rotary Club, Melbourne (6 February 1980): G Williams, The Proof of Guilt, 2nd edn. Stevens & Sons, London, 1958, 24-35; H Mannheim. ‘Trial by Jury in Modern Continental Criminal Law’ (1937) 53 LQ Rev 99: R David & HP Vries, The French Legal System, Oceania, Columbia University. New York, 1958; EJ Cohn, Manual of German Law, 2nd edn. British Institute of International and Comparative Law, London. 1968; M Cappelletti & JM Perillo, Civil Procedure in Italy, Nijhoff. The Hague. 1965: Kunert. 122: Fox in Campbell & Walter. 164-71.
[55] Thus, for example, in France and Austria some control is exercised by the courts by specifying who will give evidence on the basis of lists and summaries of evidence supplied by the parties. The court will consider the relevance of the witnesses and the relevance of their testimony. Hearsay, however, will be received unless regarded as ‘logically irrelevant’. (Hammelmann, 72-4.) A number of Swiss codes, however, give directions for the handling of hearsay evidence placed before the courts. In Germany and Italy there are code provisions and practices which emphasise the desirability of the court obtaining evidence from the original informant. (Hammelmann, 67ff; A Lenhoff, ‘The Law of Evidence: A Comparative Study Based Essentially on Austrian and New York Law’ (1954) 3 American Journal of Comparative Law 313; PB Rava, ‘Comparative Study of Hearsay Evidence Abroad-Italy’ (1969-70) 4 International Lawyer 156; Wright, 327.) In Italy, for example, it appears that the practice has emerged as a result of decisions of the courts of giving no weight to self-serving hearsay and no weight to hearsay evidence standing on its own. (Rava, 156, 158.) Nonetheless, a body of comprehensive and detailed rules known as the Laws of Evidence is simply not known in these systems.
[56] McInerney J, Submission (15 January 1981).
[57] ALRC IP 3, para 58-60, 97, 103-11; TH Smith, Evidence Research Paper No 3, Hearsay Evidence Proposal, Australian Law Reform Commission, Sydney, 1981; TH Smith, Evidence Research Paper No 4, Secondary Evidence of Documents Australian Law Reform Commission, Sydney, 1981; Justice MD Kirby, IG Cunliff & TH Smith, 
ALRC Evidence 
Research Paper No 9, Hearsay Law Reform—Which Approach? Australian Law Reform Commission, Sydney, 1982. For recent discussion see DW McLauchlin. ‘Contract and Commercial Law Reform’
(1984) 11 NZUL Rev 46.
[58] See n 2 above.
[59] See n 3 above.
[60] Davis, 725.
[61] Love. 482. However, much relevant evidence is not tendered by parties because they know it is not admissible. In addition, where a trial judge rules that evidence is inadmissible, he is publicly stating that the evidence is to be ignored This may have some effect as a performative utterance (see para 575).
[62] See above. para 49.
[63] Devlin (1981) 176.
[64] Devlin (1966) 141.
[65] Smith, 233-4; see also Frank (1949) ch 8 and ch 9, 108-45.
[66] ibid.
[67] 67. Brooks (1978) 241, 249-50; Cross, 97-98; Kunert, 129.
[68] LH Daiches QC, 1978, The Listener 819.
[69] Compare discussion on whether a jury should be directed on the meaning of ‘dishonesty’ in R v Salvo [1980] VicRp 39; [1980] VR 401, 420-3 (Murphy J), 426-8 (Fullagar J).
[70] The studies do, however, suggest that we should be reluctant to admit evidence of bad character.
[71] H Kalven & H Zeisel, The American Jury, Little, Brown & Co, Boston, 1966; J Baldwin & M McConville, Jury Trials, Oxford University Press, Oxford, 1979; RJ Simon, The Jury and the Defence of Insanity, Little, Brown & Co, Boston, 1967; AP Seafy & WR Cornish, ‘Juries and Their Verdicts’ (1973) 36 ML Rev, 496; AP Sealy & WR Cornish, ‘Jurors and the Rules of Evidence: LSE Jury Project’ [1973] Crim L Rev 208; WR Cornish, The Jury, Allen Lane, London, 1968; C Stephen, ‘Sex Prejudice in Jury Simulation’ (1974) 88 Journal of Psychology 305; D Landy & E Aronson, ‘The Influence of the Character of the Criminal and his Victim on the Decisions of Simulated Jurors’ (1969) 5 Journal of Experimental Social Psychology 141; NL Kerr, RS Atkin & ors, ‘Guilt Beyond a Reasonable Doubt: Effects of Concept Definition and Assigned Rule on the Judgment of Mock Jurors’ (1976) 34 Journal of Personality and Social Psychology 282; RM Friend & M Vinson, ‘Leaning Over Backwards: Jurors’ Responses to Defendants’ Attractiveness’ (1974) 24 Journal of Communication, 124; S Sue, RE Smith & D Caldwell, ‘Effects of Inadmissible Evidence on the Decisions of Simulated Jurors: A Moral Dilemma’ (1973) 3 Journal of Applied Social Psychology 345; MG Efran, ‘The Effect of Physical Appearance on the Judgment of Guilty, Interpersonal Attraction and Severity of Recommended Punishment in a Simulated Jury Task’ (1974) 8 Journal of Research in Personality 45; AN Doob & HM Kirshenbaum, ‘Some Empirical Evidence on the Effect of Section 12 of the Canada Evidence Act on an Accused’ (1972-3) 15 Crim L Rev 88; E Griew, ‘The Behaviour of the Jury—A Review of the American Evidence’ [1967] Crim L Rev, 555; R Cross, ‘The Behaviour of the Jury: A Comment’ [1967] Crim L Rev, 575; B MacKenna, ‘The Behaviour of the Jury: A Comment’ [1967] Crim L Rev 581; TR Heald, ‘The Behaviour of the Jury: A Comment’ [1967] Crim L Rev 577; R Hastie, SD Penrod & N Pennington, Inside the Jury, Harvard University Press, Cambridge, 1983; AN Doob ‘Evidence, Procedure and Psychological Research’ in G Bermant, C Nemeth & N Vidmar (ed) Psychology and the Law, DC Heath & Co, Lexington, 1976, 135.
[72] Love, 482; Cornish (1968) 81, 86. See also TW Smith QC ‘Judging the Jury System’, Age (24 July 1980).
[73] Under s 8 of the ACT Court of Petty Sessions Ordinance 1930 a person is not eligible for appointment as a magistrate unless he is an appropriately enrolled legal practitioner. It should be noted that the six magistrates of the ACT are also magistrates for Norfolk Island. In addition there are six lay magistrates who are residents of Norfolk Island. Note also: under s 5 of the Northern Territory Magistrates Act magistrates in the Northern Territory must be legally qualified.
[74] Love, 483.
[75] Nokes, 170-1. Nokes’ own suggestion for reform of the hearsay rule was that it should be abolished in civil cases heard by a judge without a jury leaving the judge to assess the cogency of any hearsay received. In this regard the use of juries and the experience of magistrates referred to above should be noted.
[76] JH Wigmore, ‘Jury-Trial Rules of Evidence in the Next Century’, in Law, A Century of Progress 135-1935, New York University Press, 1937, 350.
[77] id, 347.
[78] Note, legal professional privilege and the protection of settlement negotiations are justified on the basis of public interest in the functioning of the trial system.
[79] Weinstein, 241.
[80] LRC, England and Wales (1966) para 6.
[81] Against: Wigmore on Evidence para 4; Tas LRC WP (1970) 1, 22ff; N2T & GLRC (1967) para 7(i); NSWLRC 29, para 8.5; Western Australia Law Reform Commission, Report on the Admissibility in Evidence of Computer Records and other Documentary Statements, Perth 1980, para 3.20-3.23. Distinction drawn, for example, in New South Wales Law Reform Commission, Report No 17, Evidence (Business Records) Government Printer, Sydney, 1973, para 57, ALRC 29, para 8.5.6. and NZT & GLRC (1967). The distinction is also drawn in the Evidence Ordinance 1971 (ACT): Part X—Evidence in Criminal Proceedings. This Part contains special provisions dealing with competence and compellability of witnesses in criminal proceedings, admissions by accused persons, admissibility of confessions or admissions, incriminating questions, questions relating to prior convictions, evidence as to character of accused, depositions of persons dangerously ill, evidence of dead or absent persons in trials before the Supreme Court, comment on failure to give evidence, certificate of scientific examination admissible in certain cases, and a general discretion to reject evidence. Part XI of the Ordinance deals with the admissibility of convictions in civil proceedings. See also Criminal Law Revision Committee, England and Wales, Eleventh Report, Evidence (General), HMSO, London, 1972, Cmnd 4991, para 11: JB Weinstein, ‘Alternatives to the Present Hearsay Rules’ (1968) 44 FRD 375: Nukes, 171.
[82] For example, where a matter is subject to the court’s leave (cl 142(2).
[83] Weinstein, 229.
4. Inconsistencies and Uncertainties
90. Terms of Reference. The Commission is asked to report on whether, and to what extent, there should be uniformity in the laws of evidence applying in Federal and Territory courts. The terms of reference indicate a view sympathetic to a comprehensive uniform law. They recite the recommendations of the Senate Standing Committee on Constitutional and Legal Affairs, made in its Report on the Reference: The Evidence (Australian Capital Territory) Bill 1972 that a Uniform Evidence Act be drafted to apply the same law of evidence to ACT and to the external Territories and, as far as is appropriate, to apply the same law of evidence in all Commonwealth courts and tribunals.
91. The Differing and Uncertain Laws of Evidence. The review of the laws of evidence to be undertaken by the Commission involves a consideration of the laws of evidence[1] of all States and the Northern Territory as applied in federal courts, and of the Australian Capital Territory, Norfolk Island, Christmas Island, and Cocos (Keeling) Islands.[2] The relevant laws are a combination of legislation and the common law with the exception of Christmas and Cocos (Keeling) Islands where a code applies. The legislation applicable in Norfolk Island is generally the same as that which applies in New South Wales.[3] In considering the common law, reference must be made from time to time to English case law. It is still customary for courts to take English authorities into account. In addition federal courts are required by s 80 Judiciary Act 1903 to apply ‘the common law of England ...’ in the absence of applicable ‘laws of the Commonwealth’.[4] There is much of the law of evidence that is clearly established and much that is common to the States and Territories. At the same time, however, there is a remarkable lack of uniformity and uncertainty in the legislation and common law rules applying in Australia.[5] There are many significant differences and areas of uncertainty. It seems bizarre that national courts should apply different laws of evidence in administering national laws and that the selection of the appropriate law of evidence should depend upon the location of the hearing. These issues must be considered. First some of the more significant differences and uncertainties will be referred to—significant in the sense that they are capable of affecting the outcome of the case. Then the arguments for and against uniform and comprehensive laws will be considered.
92. The examples given in this chapter of the differences, jurisdiction to jurisdiction and uncertainties are very selective. They are only some of the more notable examples. No area of the law of evidence is free of significant differences or uncertainty. In selecting the examples emphasis has been put on those which are likely to affect the final result of court proceedings.[6]
93. As its researches in the evidence reference advanced, the Commission was amazed at the extent of differences, variations and uncertainties. Those who have studied the research papers have had a similar reaction. Differences and uncertainties are significant even in areas of the evidence law which many lawyers would assume are uniform and not in dispute, such as relevance, standard of proof and judicial notice. Those topics are dealt with first.
94. Definition. Although the requirement that evidence be relevant is the threshold rule of admissibility there is considerable uncertainty as to the legal meaning of ‘relevance’—the nature of the connection required between tendered evidence and the issues in a case. Attempts by courts to elucidate the meaning of relevance are incompatible with one another. Amongst the approaches are that the evidence in question must:
• be part of the transaction. Wills[8] considered that all constituent parts and details of the ‘transaction in issue’ are necessarily relevant to the issue, as are ‘subordinate incidents, together with such further facts as may be necessary to identify or explain them’;[9]
• render another fact probable;[10]
• increase the probability of the existence of the fact, however marginally;[11]
• be of ‘sufficient relevance’ (relevance is a matter of degree);[12]
• be submitted to a balancing of probative value and other policy considerations—eg a balancing of probative value against remoteness, confusion, risk of prejudice and time wasting.[13]
There is also conflicting authority on whether, to be relevant, evidence must have a direct connection to the ultimate issue[14] or whether an indirect connection suffices.[15] An example of the latter approach would be to treat evidence that a confession was true as relevant to show that the confession was voluntarily made.[16]
95. Objective or Subjective Test. Regardless of which of the above formulations of the relevance standard is adopted, there is conflicting authority about whether the judge must be satisfied that:
• the evidence meets the specified standard;[17] or
• the evidence is reasonably capable of meeting the specified standard.[18]
96. Uncertainty—Civil Standard. Despite the occasional expression of doubt,[20] it is now well established that there are two[21] standards of proof at common law:[22]
• proof ‘on the balance of probabilities’ or ‘on the preponderance of evidence’ (the ‘civil standard’). It is normally applied in civil cases and as the appropriate standard for affirmative defences[23] in criminal cases; and
• a higher standard of proof—beyond reasonable doubt (the ‘criminal standard[24]). Any factual issue in respect of which the prosecution has the onus of proof in criminal proceedings must be proved to this standard before an accused can be convicted.
97. Significant uncertainties exist in respect of the civil standard. A passage frequently cited to explain the civil standard is that of Sir Owen Dixon in Briginshaw v Briginshaw,[25] describing a subjective standard that fixes the minimum strength of belief in a fact that the fact-finder must have before he can find that fact proved:
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality ... Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.
98. At the same time the language used generally by the courts suggests an objective standard.[26] So, the relationship between evidence and conclusion of fact could be analysed in terms of the relative frequency of the events in question—for example, the frequency with which a particular type of accident involving a motor vehicle and pedestrian is caused by the negligence of the driver of the motor vehicle.[27] On this approach, a standard of proof simply fixes the minimum relative frequency with which a particular type of event must occur before a court is entitled to infer that that event occurred in the case in question. In civil cases, it is often quantified as 51 out of 100,[28] so that in the above example, provided accidents of the type in question were caused by the negligence of drivers in at least 51 out of 100 cases, the court would be entitled to find that the driver in the case in question had been negligent.[29]
99. The issue is of importance in civil cases where the evidence is scant and largely circumstantial. In cases of that type, the evidence may be sufficient to establish that a fact in issue is more likely than not, at least on an objective approach in terms of relative frequencies, but insufficient to justify a belief in that fact. The law is still uncertain on which approach is correct.[30]
100. The Standard in Respect of Preliminary Questions of Fact. Although it is difficult to find authority on the point, there can be no doubt that the standard of proof in respect of preliminary questions of fact in civil cases is the civil standard. The position is not so clear in criminal cases. In Wendo v R,[31] the High Court rejected the argument that, before an accused’s confession was admissible, it was necessary to prove beyond reasonable doubt that it was voluntary. The Court held that the judge should have admitted the confession if he was satisfied that there was prima facie evidence that it was made voluntarily.[32] Later Australian courts have interpreted this as meaning that the appropriate standard is the civil one.[33] But there are contrary decisions in relation to dying declarations[34] and in Papua New Guinea in relation to voluntariness of confessions.[35] They, and English courts stipulate proof beyond reasonable doubt as the appropriate standard.[36]
101. What is Judicial Notice? The terms ‘judicial notice’ and ‘taking judicial notice’ are used to describe both the process by which propositions of fact and law may be established without formal proof and the acceptance of a particular proposition of law or fact.[38] They are used to describe the processes followed and materials used by juries as well as judges. The terms are used to describe: the stated as well as the unstated use of general knowledge;[39] the use of factual and legal material known to the judge; the use of factual material known to the jury; and the use of factual material upon which the judge but not the jury may inform himself. In most evidence legislation the term ‘take judicial notice’ has been used in other senses. Reference should be made, for example, to legislation that requires the court to accept a seal or signature on its production. There is no consistency of approach in the legislation. Some says the court may act or shall act upon the material; others that the court shall ‘take judicial notice’ if certain evidence is led or conditions satisfied.
102. Judicial Notice of Facts. The classic statement of the test is that judicial notice will be taken where a fact is so generally known that every ordinary person may reasonably be presumed to be aware of it.[40] On the other hand courts have held that judicial notice may be taken of facts provided that they are generally known and accepted in a particular community in which the court is sitting. For example in Warren v Pilkington it was held that judicial notice may be taken in the inhabited parts of Tasmania that the sunset at Powranna (21 miles from Launceston) is never as late as nine o’clock at night.[41] However, there is a substantial body of conflicting authority about local knowledge and judicial notice. For example, it has been held that:
• a justice cannot use his knowledge of a small section of road or the distance between a sign and road crossing but can use his local knowledge of a river wharf and distances across the river and his own knowledge of the nature of a particular bend in a road;[42]
• a magistrate cannot rely on his local knowledge of the amount of traffic along a particular stretch of road at particular times but can take account of the fact that there is likely to be ‘a lot of traffic’ on a particular road;[43]
• a court in Brisbane can take judicial notice of the existence of ‘Lennons Hotel’ in George Street Brisbane. The court at Glen Innes can take judicial notice of the fact that it is the nearest court to Glen Innes, but a judge in Sydney will not take judicial notice of the fact that Bourke is more than 150 miles from Sydney.[44]
There is also authority that judicial notice may be taken of facts known to and accepted by members of a section of that community when they may not be known to and accepted by the general community. For example in Horman v Bingham[45] it was held that the magistrate was entitled to make findings as to the position of seeds on the cannabis plant without receiving evidence in the ordinary way. Justice Newton held that:
It is open to a court to take judicial notice of an indisputable botanical fact such as the position of seeds upon a plant, at all events in a case where the fact is well known to all persons having any acquaintance with the plant in question, and may readily be verified by means of standard works of reference, and is not disputed in the course of the proceedings before the court.[46]
There is legislation in three States enabling references on history, science and other matters to be used although not formally proved.[47] In other States the common law applies, and it is unclear.
103. It is not surprising, in the light of the above examples, to find that the law of evidence differs and is uncertain in other important areas.
104. Privilege Against Self-Incrimination.[48] There are at least three different approaches within the Commonwealth of Australia which federal courts have to apply when sitting in the appropriate jurisdiction. The common law in terms or in substance applies in four jurisdictions.[49] The common law privilege against self-incrimination was stated to be as follows:
The rule is that no one is bound to answer any question if the answer thereto would in the opinion of the judge, have a tendency to expose the deponent to any criminal charge, penalty[50] or forfeiture[51] which the judge regards as reasonably likely to be preferred or sued for.[52]
It applies both to the answering of questions or interrogatories[53] and to the production of documents.[54] The privilege applies to a witness whose admissions might expose him to ecclesiastical censure[55] or reveal that the witness had committed adultery.[56]
105. In Victoria the common law privilege is limited to answers tending to expose the witness to punishment for criminal offences. In three jurisdictions the witness is compelled to answer on being given the protection of a certificate. In the ACT the certificate makes the evidence inadmissible in criminal proceedings other than for perjury. The effect of the Tasmanian and Western Australian provisions is very different. It is not that the statement becomes inadmissible but rather that prosecutions cannot be brought in relation to matters on which the witness gives evidence. Under all of the certification procedures the court has a discretion on the invocation by the witness of the privilege to compel the witness to answer and grant a certificate if he adjudges such compulsion ‘in the interests of justice’. It is not surprising that the courts’ approaches to the exercise of the discretion have been varied. It may be critical for the plaintiff in some litigation—for example, Trade Practices litigation—to select a forum where the certification procedure is available. The success of a case could depend on that selection. In the Family Court, a difficult situation arises on occasions where it is sought to obtain or enforce restraining or similar orders against a spouse. Spouses, by way of defence, may have to give evidence which could be used against them in subsequent criminal proceedings. In those jurisdictions where certificates can be given the problem can be dealt with by issuing a certificate. In those where they cannot, the Court must do what it can to ameliorate the situation—for example, by adjourning the Family Court proceedings to enable the criminal proceedings to go ahead.[57]
106. The legislation in the ACT is limited in its operation to the situation where a witness is exposed to the risk of proceedings under Australian law. The legislation of Western Australia and Tasmania is silent on this issue. It is not clear, but might well be the case, that the indemnity in the ACT and in Tasmania and Western Australia, would not be given effect to outside the particular jurisdiction. The situation could arise where:
• a federal court issues a certificate while sitting in Tasmania or Western Australia purporting to act as a bar to proceedings relating to the information contained in the statement certified by the court but is unable to give effect to its certificate when sitting in, for example, New South Wales;
• a federal court applying the law of Tasmania or Western Australia could issue a certificate guaranteeing, in effect, immunity from prosecution. The witness might, in answer to questioning, show himself guilty of a criminal offence in, for example, South Australia. The South Australian court would in all probability not recognise the effect of the certificate within its own jurisdiction and the words of the witness could be used against him as a declaration against interest.
107. In a number of other respects there is also variation and uncertainty from jurisdiction to jurisdiction on the application of the privilege against self-incrimination. These include
• whether the judge has a responsibility to warn the witness of his rights[58]
• whether the privilege extends to questions that may incriminate the witness’ spouse.[59] In the ACT the privilege extends to answers incriminating the spouse of the witness. It does not in Victoria and it is unclear whether it does elsewhere. There is no authority to suggest that the privilege can be invoked to protect members of the witness’ family other than the spouse;[60]
• whether the privilege can be claimed by corporations. Because of the impossibility of a corporation as such ‘testifying’[61] claims of privilege are not likely to arise in the context of a trial but may arise in the course of pre-trial discovery. In Australia the issue has not yet been authoritatively ruled upon;[62]
• whether the privilege can be claimed where the incrimination would be under a foreign law, including where the domestic court is receiving evidence for use in proceedings abroad;[63]
• whether and to what extent a number of diverse statutory provisions exclude or partially exclude the privilege in the court setting. For example:
(a) In Tasmania and Western Australia under s 88 and s 12 of their respective Evidence Acts: A person required to be examined in any proceeding for the breach of any Act relating to-
(a) stamp duties;
(b) public revenues;
(c) sale of intoxicating liquors
shall not be excused from answering any question touching any such breach on the ground that his evidence will tend to incriminate him.
(b) Bankruptcy Act. Under section 69(12) of the Bankruptcy Act 1966 (Cth):
The bankrupt shall answer all questions that the Court, the Registrar or Magistrate puts or allows to be put to him, and unless the Court, the Registrar or the magistrate as the case may be, otherwise directs, is not excused from answering any such question by reason only of the fact that the answer to it may incriminate him.
(c) Queensland. Under s 442K of the Criminal Code a person shall not be excused from answering questions which might incriminate him but the answer shall not be admissible in evidence in any proceeding against the person.
(d) New South Wales. Under s 246 of the Crown Lands Consolidation Act 1913, a witness may be compelled to answer a question that may expose him to forfeiture or penalty under the Crown Lands Acts but such answers shall not be admissible against the witness in any criminal proceedings.
The construction that should be given to s 155 of the Trade Practices Act. Problems have been occasioned by the express reference in s 155(7) to the abrogation of the privilege against self-incrimination and the absence of any reference to the privilege against exposure to the imposition of a federal penalty.[64]
108. Privileges Related to Litigation and Legal Service.[65] The law protects from disclosure a variety of materials relating to litigation and to the relationship between lawyer and client. This protection operates to varying degrees both in pre-trial discovery and in the questioning of witnesses during the trial.[66] The discussion in this context is concerned with the trial phase and will relate to the common law privilege that attaches to documents relating solely to the party’s own case and the privilege that attaches to communications between lawyers, clients and third persons and to the notes and working materials of the lawyer traditionally described as ‘legal professional privilege’.[67] It is difficult to state the content of the common law due to uncertainty about the effect of the leading Australian case, Grant v Downs.[68]
109. At common law there were several recognised categories of material protected by legal professional privilege.[69] The privilege protected:
• the material prepared by the legal adviser;[70]
• communications between the client’s lawyers. Opinions sought from counsel by solicitors were also privileged either because the counsel was the legal adviser for the purpose of the rule or else because he was the alter ego of the solicitor.[71] Communications between the legal adviser and his partners and agents were also privileged;[72]
• communications involving the client, legal advisers and third persons.
The privilege extended to:
• communications between the client or his agent and the client’s professional advisers;[73]
• communications between the client’s professional legal advisers and third parties or their respective agents if made for the purpose of pending or contemplated litigation.[74] It was not a requirement that the document had been prepared solely or even primarily for the purpose of litigation as long as that was a material object;[75]
• communications between the client or his agents and other persons if made for the purpose of obtaining information to be submitted to the client’s professional legal advisers for the purpose of pending or contemplated litigation.[76] It was not clear whether legal professional privilege extended to all documents that were communicated to a legal adviser or only to those which were specifically brought into existence for the purpose of seeking such advice. There had been a difference of opinion in the English authorities.[77]
110. Grant v Downs privilege was claimed for internal reports made within the Department of Public Health of New South Wales relating to the circumstances surrounding the death of a man in a psychiatric hospital. The case went on appeal to the High Court. In the majority judgment, Justices Stephen, Mason and Murphy stated that they required, ‘for legal client privilege to be established, that the document was created for the sole purpose of obtaining legal, advice or for the purpose of use in existing or anticipated litigation’.[78]
111. It is not clear, and later decisions have disagreed, whether the sole purpose requirement in Grant v Downs applied to all the above categories of communications or only to the sorts of documents involved in Grant v Downs.[79] The views of judges of the High Court expressed since Grant v Downs have either not resolved the matter or are at variance with one another.[80]
112. Some other aspects of legal client privilege, unaffected by Grant v Downs, are uncertain:
• Loss of the Privilege. There is conflicting Australian authority about whether a failure to claim privilege in an affidavit of documents and whether (or to what extent) disclosure of the content of the communication will result in the loss of the protection.[81]
• Copies of Non-Privileged Documents. There is conflicting English authority whether copies or notes of documents, such as hospital records or depositions of public hearings, are privileged if made by the legal adviser for the purpose of use in litigation notwithstanding that the original documents are not privileged.[82] The only Australian authority, a decision of the Full Court of the Supreme Court of Victoria, rejected the proposition that such notes or copies can be privileged.[83]
• Copies of Privileged Documents. It is unclear whether copies of documents can be given in evidence although the original document was subject to legal professional privilege or whether an injunction may be obtained to prevent such a document being given in evidence.[84] There is Australian authority[85] that ‘the other party, if he is fortunate enough to possess a copy, however obtained, may put it in as secondary evidence of the original notwithstanding that the original is privileged, if the original is relevant and would itself be admissible if it were not privileged’.[86] The issue was also recently considered by some of the judges of the High Court in Baker v Campbell.[87] Chief Justice Gibbs expressed the view that an injunction could be obtained preventing the document being used as evidence.
• Communications to Further a Fraudulent or Criminal Purpose. ‘Communications in furtherance of a fraud or crime, whether the solicitor was a party to, or ignorant of,[88] the illegal object, are not protected’.[89] There are differing statements as to what must be established and the standard of proof required.[90]
• Paramount Public Interest in Welfare of the Child? The possibility of an exception to legal professional privilege based on the public interest in the welfare of a child was raised in Re Bell: Ex parte Lees[91] by Justices Gibbs (as he then was) and Murphy. That case involved pending custody proceedings and a claim for privilege in respect of information about the whereabouts of the child which was given by the mother to a solicitor in connection with other proceedings concerning the matrimonial home. The claim to privilege was disallowed on the ground that the welfare of the child must be paramount. The scope of this exception is not clear—it must have some limits. Otherwise, the privilege could never operate in custody and similar proceedings. The other justices of the High Court reached a similar decision but relied upon different reasons which are considered in the next sub-paragraph.
• Legal professional privilege may not impede the administration of justice. In Re Bell: Ex parte Lees, Justice Stephen held that ‘... to allow a claim to legal professional privilege in the particular circumstances of this case is to subvert the purpose of that privilege, which is to further and not to impede the administration of justice’.[92]
Justice Wilson (Justice Aickin agreeing) had regard to the public interest:
... Confidentiality was imperative in order to enable her to avoid discovery of herself and the child, and so continue her defiance of the order of the court. To extend privilege to such a communication does nothing in the circumstances to facilitate ‘the perfect administration of justice’. On the contrary, it enables the continuance of a contempt of court, and bears on its face the taint of illegality.[93]
The application was refused and it is probable that the effect of the judgments is to create an exception to the application of legal professional privilege. A further question, though, is whether this exception, the exception referred to in the previous paragraph or both exceptions will be applied.
• The Litigant in Person. In National Employees Mutual General Insurance Ltd v Waind,[94] Justice Mason expressed the view that:
... it is very doubtful whether there is a privilege for documents coming into existence as materials for the purposes of an action to be conducted by a litigant in person.[95]
Privilege has been denied to statements and materials submitted by a dismissed worker to his union in seeking its authority and help in bringing an action.[96] It has been suggested, however, that at some stage ‘a privilege must arise’ to protect the litigant’s brief.[97] In Mayor & Corporation of Bristol v Cox[98] it was argued that the notes of the litigant would be protected.
113. There is a rule of common law which protects a party’s documents which relate solely to that party’s case and do not support the case of the other party. Although Phipson suggests that the privilege is available in criminal proceedings[99] research has not identified any reports of criminal trials where the privilege has been claimed. In some jurisdictions it has been limited or abrogated by legislation. Under the Federal Court Rules (Order 15, rule 7) relating to pre-trial discovery this claim of privilege is abolished, except with the leave of the Court.[100] It presumably is still available at trial. In Queensland the rule has been abrogated in relation to civil proceedings[101] as it has in the ACT.[102]
114. Privilege Protecting Spousal Communications.[103] At common law there is no privilege attaching to communications between spouses.[104] In the Family Court there is no privilege. In all States and Territories, however, there is legislation that creates a privilege in respect of spousal communications. It can be divided into two classes,—communications between spouses and communications to spouses.
• ‘Communications Between Spouses’ Provisions. There are provisions in New South Wales, the Northern Territory and the ACT. The form of the sections makes it clear that its protection is meant to cover all communications passing between them during marriage and confers the privilege on both spouses. In New South Wales, the privilege is available in both civil and criminal proceedings.[105] In the Australian Capital Territory the privilege applies in civil but not criminal proceedings.[106] In the Northern Territory a spouse is not compellable to disclose communications between them in criminal proceedings unless the spouse is a compellable witness in the criminal proceedings. This will depend upon the precise offence being tried.[107]
• ‘Communications to the Spouse’ Provisions.[108] The provisions differ as to the type of proceedings in which they apply. In Tasmania the privilege is available in all proceedings except matrimonial proceedings.[109] Elsewhere:
― Victoria. The privilege is not available in any criminal proceeding or to any proceeding for the grant, variation or revocation of bail.[110]
― Queensland. The privilege is available only in a criminal proceeding in which the other spouse is charged.[111]
― South Australia. The privilege is available only in criminal proceedings.[112]
― Western Australia. The privilege is available in all civil proceedings other than matrimonial proceedings and criminal proceedings where the spouse is a compellable witness.[113]
115. Doctor-Patient Privilege.[114] The common law applies in New South Wales, Queensland, South Australia, Western Australia and the Australian Capital Territory.[115] There is no privilege at common law.[116] Judicial comment in cases where no doctor-patient privilege has been recognised show that breaches of professional confidence will not be encouraged. Courts have disapproved of the volunteering of medical evidence of a confidential nature[117] and have not always compelled a witness to attend court and testify in breach of confidence. In Hunter v Mann[118] Lord Widgery said:
If a doctor giving evidence in court is asked a question which he finds embarrassing because it involves him talking about things which he would normally regard as confidential, he can seek the protection of the judge and ask the judge if it is necessary for him to answer. The judge, by virtue of the overriding discretion to control his court which all English judges have, can, if he thinks fit, tell the doctor that he need not answer the question. Whether or not the judge would take that line, of course, depends largely on the importance of the potential answer to the issues being tried.
The law relating to subpoenaed documents also enables the court to give some protection to the confidentiality of documents. For example in McAuliffe v McAuliffe[119] Chief Justice Blackburn in the Supreme Court of the ACT ruled that although a doctor was obliged to produce documents to the court which had been subpoenaed he would not allow their inspection by the patty who had called the doctor, on the basis that the law does not compel a person not a patty to an action and not called as a witness to make a document which belongs to him available to a party unless the document is itself admissible in evidence upon proof by a witness other than the person requested to make it available. Thus while there is no common law privilege for doctor-patient communications, courts will on occasions give some protection to the confidential communication. The grounds and circumstances are, however, unclear.
116. In Victoria, Tasmania and the Northern Territory a statutory protection is created arising out of the doctor-patient relationship. It is available in civil proceedings. The Victorian legislation is quoted for purposes of comparison:
No physician or surgeon shall without the consent of his patient divulge in any civil suit action or proceeding (unless the sanity or testamentary capacity of the patient is the matter in dispute) any information which he has acquired in attending the patient and which was necessary to enable him to prescribe or act for the patient.[120]
117. The legislation differs in several important ways. In addition there are unresolved issues about its interpretation:
• Criminal Purpose and Insurance. The Tasmanian and Northern Territories provisions are similar but they exclude any communication made for a criminal purpose and evidence of statements or representation to a medical practitioner in respect of the effecting of life insurance. The Victorian provision does not.
• Testamentary Capacity. The exception relating to testamentary capacity is not included in the Tasmanian and Northern Territory provisions.
• Wrongs Act and Workers Compensation Proceedings. The Victorian provisions also exclude the privilege in proceedings under the Wrongs Act or Workers Compensation Act to recover damages for the death of a person. It is limited to the situation where any physician or surgeon is called as a witness and does not apply to pre-trial discovery.[121] The operation of the section in ‘Wrongs Act’ proceedings in Tasmania and the Northern Territory will depend upon the resolution of differing authorities on the question of who may ‘consent’ under the legislation.[122]
• Material Protected. The material protected is different—‘information’ (Victoria) and ‘communication by the patient’ (Northern Territory and Tasmania) on the other. The Victorian provision was limited in practice initially[123] to statements made by patients. For many years, however, it has been interpreted to cover ‘knowledge, howsoever acquired, whether from medical examination or from statements by the patient’, the view being that the privilege would be illusory if confined to his statements.[124] The Victorian legislation has given rise to a number of interpretation difficulties.[125]
• Relationship. The Victorian provision requires that the doctor was ‘attending the patient’ when he acquired the information. The Tasmanian and Northern Territory provision requires only that he was acting in his professional character. This difference is diminished, however, by the Tasmanian and Northern Territory, requirement that the material was necessary to enable the doctor to ‘prescribe or act for the patient’.[126] The Victorian legislation has been interpreted as requiring a relationship of personal confidence to exist between physician and patient, which might not exist simply because a physician or surgeon prescribes or operates on the patient.[127] It is arguable that the other legislation not requiring ‘attendance’ should not be interpreted as requiring a relationship of personal confidence.
• Who may Consent. In 1966 the Victorian legislation was amended following two cases in 1963 and 1964 where attention was drawn to the problem of who may consent to the giving of evidence arising where action was taken by a relative under s 18 of the Wrongs Act 1958. Before the amendments there was a difference of Victorian authority as to whether the right to consent was a proprietary right or not and so whether a personal representative or committee or guardian ad litem or next friend could give it or withhold it.[128] These differences and uncertainties still exist in the Northern Territory and Tasmanian legislation.
118. Cleric/Communicant Privilege.[129] It is clear that at common law there is no privilege arising out of priest-penitent (or minister-parishioner) relationships.[130] The common law applies in most jurisdictions.
119. In Victoria, Tasmania and the Northern Territory, however, a statutory privilege was created arising out of the priest-penitent relationship but restricted to the contents of a ‘confession’. The legislation[131] is similar in that it provides (using the Victorian provision for comparison):
No clergyman of any church or religious denomination shall without the consent of the person making the confession divulge in any suit action or proceeding whether civil or criminal any confession made to him in his professional character.[132]
Neither the Northern Territory nor the Tasmanian legislation, however, contain the rider appearing in the Victorian legislation that the confession must be made according to the usage of the church or religious denomination to which the person making the confession belongs. The Victorian legislation, on the other hand, does not, like the other legislation, except ‘communications made for any criminal purpose’.
120. Public Interest ‘Privilege’.[133] In most jurisdictions the common law is applied in determining whether evidence is protected from disclosure on the ground that disclosure would harm state interests. There is a considerable body of case law and, until recently, there was doubt in Australia about the scope of the protection and the extent to which a court would investigate a claim of privilege.[134] Many of these doubts were resolved by the High Court in Sankey v Whitlam.[135]
121. In 1979 the New South Wales Evidence (Amendment) Act 1979 was passed. It negatives the effect of Sankey v Whitlam in respect of written or oral communications relating to—‘proceedings of Cabinet, of a committee of Cabinet or the Executive Council’; ‘the formulation of government policy’; ‘government administration at senior level’.[136] The major section is section 61 which provides that when the Attorney-General certifies that in his opinion any communication described in his certificate is a ‘government communication’, is ‘confidential’ and its disclosure in any legal proceedings described in the certificate is not ‘in the public interest’, the communication shall not be disclosed or be admissible in evidence in those legal proceedings. The certificate of the Attorney-General is conclusive. Further, a communication shall not be disclosed or be admissible if it appears to the person presiding in the court before which the legal proceedings are held that the communication is a government communication and that the Attorney-General has not had an opportunity to give a s 61 certificate.
122. The Senate Standing Committee on Constitutional and Legal Affairs has commented:[137]
the Act confines the New South Wales courts to a role that they have never previously accepted, as the ruling of the House of Lords had always been resisted in Australia in relation to class claims, both by the Privy Council and by the New South Wales Supreme Court.[138]
Section 42D of the Evidence Amendment Act 1982 of the Northern Territory follows similar lines to the New South Wales provision.
123. Identity of Informer Privilege.[139] There is a rule of public policy in the broadest sense which involves the weighing up of competing policy interests about whether the identity of an informer should be disclosed. The exact formulation of the rule is not always consistent. One of the difficulties is that it is unclear who is the possessor of the privilege, although the weight of authority is that it resides within the discretion of the court. The precise formulation of the content of the informant privilege has been little litigated.[140]
124. Without Prejudice Negotiations.[141] The law protects from disclosure the content of communications between parties and their agents made in the course of an attempt to settle a dispute between them.[142] There is authority, from the family law field, that statements made to a mediator by spouses may not be disclosed by the mediator without the consent of such spouses.[143] There are, however, some areas of uncertainty:
• Third Parties. It is unclear whether the privilege applies between and binds only the parties and their agents and does so only in respect of the dispute between them and until its resolution. Cross argues that this is the position.[144]
• Criminal Trials. Few reported cases have been identified where the application of this privilege has arisen in the settlement of criminal cases. The authorities are divided in the United States and Canada.[145] Vaver mentions two cases where negotiations to settle a criminal case were held to be protected.[146] The topic of confidentiality of such communications is closely connected to the general topic of plea bargaining. As to the use in criminal proceedings of statements made in negotiations to settle civil disputes, there is little authority. There is a dictum of Lord Justice Scrutton that a ‘without prejudice’ letter may be used in ‘criminal matters’.[147]
125. Judges and Jurors Privilege.[148] There is little authority with the result that the law is unclear.
• Judges. There is authority that judges are competent but not compellable to testify about matters on which they are or have been judicially engaged.[149] There is also authority, however, that ‘inferior judges’ and court officers are compellable. The meaning of ‘inferior judges’, however, is not clear.[150] There is little direct authority on the question of whether evidence can be adduced from a judge about the considerations which led him to his decision or about the manner in which he has exercised his judicial powers. In Zanatta v McCleary[151] Chief Justice Street stated that such evidence could not be adduced from a judge. Justice Samuels however, stated that a judge is not compellable to give such evidence.[152]
• Jurors. Until 1670 juries were frequently punished for verdicts proved wrong on appeal or contrary to the direction of the judge.[153] The immunity of jurors from punishment for wrongful verdicts was established in Bushell’s case[154] and it was further held by Chief Justice Vaughan that a jury could not be punished in a criminal case for such a finding. At this stage the need of a juryman to explain the reasons for his verdict ceased and the public interest[155] in the secrecy and privacy of jury considerations became paramount. A juror is no longer allowed to give evidence as to what occurred during the deliberations of the jury or as to his reasons for decision. He may, however, give evidence that he did not assent to the verdict as reported by the foreman if he could not hear it.[156] It is unclear whether further exceptions would be allowed—for example evidence that one juror had successfully bribed or threatened the others.[157]
126. Privilege as to Title Deeds.[158] At common law a witness who is not a party to proceedings cannot be compelled pre-trial or during the trial to produce his title deeds or other documents relating to his title to any real property.[159] Under Queensland legislation the rule as it relates to documents of ‘title to land’ has been abolished for civil proceedings.[160] In the Australian Capital Territory similar legislation[161] is not limited to civil proceedings. Neither provision purports to deal with documents of title to personal property.
127. Use of Photos where Line-Up Possible. The disparities between the Australian and English approaches do not generally create uncertainty for Australian courts because of High Court authority. An exception, however, is the situation where police have used photographs for identification when a line-up could have been held. The question was considered in Alexander v R[163] but no clear answer emerged. Justice Mason (with whom Justice Aickin agreed) took the view that, while the trial judge should weigh the prejudicial effect of evidence against its probative value, the fairness or otherwise of the identification does not affect the decision. He held also that the discretion formulated in Bunning v Cross[164] had no application.[165] Chief Justice Gibbs however, held that the trial judge has a discretion to exclude evidence if rules of admissibility operate unfairly against the accused. He said that the trial judge should take into account the duty of investigating police to guard against miscarriages of justice.[166] Justice Stephen (dissenting) held that the trial judge should generally exclude evidence of photo identification where the detection process was ended—eg a suspect has been identified so that an identification parade could be held. However he recognised that photos may have to be used in the detection phase and evidence of their use may, in that situation, be unavoidable. There, His Honour stated that the protection of the discretion to exclude prejudicial evidence should be considered.[167] Justice Murphy (dissenting) referred to the existence of a discretion with two aspects—to exclude evidence obtained ‘unfairly or improperly’ and to exclude prejudicial evidence. He advocated an approach similar to that of Justice Stephen in the application of judicial discretionary powers to exclude evidence of photo-identification.[168]
128. Judicial Warning—Mandatory or Discretionary? Until recently the law seemed clear. In England, the giving of a general warning about the dangers of identity evidence was not mandatory. However, in R v Turnbull,[169] the Court of Appeal held that where the case against an accused person depends ‘wholly or substantially’ on disputed identification evidence, a detailed warning of the need for caution before acting on it should be given:
... the Judge should warn the jury of the special need for caution before convicting in reliance on the correctness of the identification. This warning need be in no particular words but should include the reason for the warning, the possibility of a mistaken witness being a convincing one and a caution that several witnesses may all be mistaken.[170]
The Court went on to say that the judge must also indicate any specific weakness in the prosecution evidence and invite the jury to examine the circumstances in which the identification was made. Where the evidence is of good quality it may be put to the jury without more, subject to the warning being given. The weight of Australian, including High Court, authority is to the effect that the identification warning is not compulsory, but need only be given where the circumstances warrant it.[171] However the propositions in R v Turnbull have been approved in decisions of Courts of Criminal Appeal in Victoria, Tasmania and Western Australia.[172] The influence of R v Turnbull can also be seen in the detail now expected of trial judges in those jurisdictions.[173] But in New South Wales, the Court of Criminal Appeal has been invited on a number of occasions to review the law in the light of R v Turnbull but has not done so.[174]
129. Power to Direct Acquittal. It has been said that the trial judge should consider directing an acquittal where the accused was pointed out to the witness. The English Court of Criminal Appeal may quash a conviction if police have attempted to point the accused out beforehand to someone who has been asked to identify him.[175] It was also stated in Turnbull’s case that:
Where in the opinion of the judge the identification evidence is of poor quality he should direct an acquittal unless there is other evidence which goes to support the correctness of the identification.[176]
The Turnbull formula has been quoted with approval in Tasmania and Western Australia[177] but not elsewhere.[178] The issue is complicated by a divergence of view on whether the trial judge generally has the power to direct the jury to acquit where the prosecution evidence, if accepted, would raise a prima facie case, but, in his view, it would be unsafe to convict the accused on the basis of it. There is English authority supporting the existence of such a power.[179] It appears to have been followed in Victoria and New South Wales but not in Western Australia, Tasmania and South Australia.[180]
130. The Rule and its Scope. The rule against hearsay evidence excludes evidence of statements made out-of-court when tendered to prove the truth of the facts asserted in them. The scope of the rule, however, is unclear. For example, it is unclear whether the hearsay rule excludes implied assertions of fact or opinion, whether implied from words or conduct. In the leading case of Wright v Doe d Tatham[182] it was held that three letters written to the testator showing that the writer regarded him as sane were inadmissible on the, issue of the testator’s capacity because it was hearsay evidence. In the same case, however, evidence was admitted that the testator was treated with disrespect by his steward, was treated as a child by servants and residents of his village and that he was called ‘Silly Jack’ and ‘Silly Marsden’ by his neighbours. Other similar evidence was also admitted. Its relevance lay in the fact that it revealed that people believed that the testator was insane. In Ratten v R[183] it was held that the evidence of a telephone call in which an hysterical high-pitched voice was heard was relevant to show that the caller was afraid but was held not to be an assertion by the caller that she was being attacked and therefore was not hearsay evidence. The evidence could only have been relevant for its implied assertion that the caller was justifiably fearful of attack. It is unclear whether evidence of conduct such as flight or silence which might imply guilt is hearsay evidence.[184]
131. The Common Law Exceptions to the Rule. Further significant uncertainties and differences exist in relation to exceptions to the rule against hearsay:
• Res Gestae. Certain statements connected with the transaction into which the court is enquiring may be admitted under this principle although their admission would otherwise breach the rules of hearsay. But the authorities on what constitutes an appropriate connection are unreconcilable. The Privy Council in Ratten v R[185] attempted a new approach requiring that the statement be made in such circumstances as to exclude the possibility of concoction or fabrication. The High Court, however, has expressed doubts about this formulation.[186] The position is further complicated in Tasmania where legislation[187] permits evidence to be admitted of a narration, description or explanation of ‘an act, condition or event’ made while the person was ‘perceiving’ the event or ‘spontaneously while the person was still under the stress of excitement caused by perceiving’ the event.
• Identification. The law is unclear on the question of when and in what circumstances evidence from a person of the act of identification by another person is admissible. In Alexander v R,[188] the High Court was divided on the issue. In this case the defendant was convicted of entering a building as a trespasser with intent to steal. He was identified from photographs by a number of witnesses. One witness gave evidence that he had identified a person from the photographs but that he could no longer remember which photographs, and another witness gave evidence that the first witness had identified a photograph of the defendant. Justice Mason (with whom Justice Aickin agreed) considered that such evidence was always admissible as original evidence, constituting no violation of the hearsay rule.[189] On the other hand, Chief Justice Gibbs (and, in effect, Justice Murphy) stated that evidence by a witness who observed another make an out-of-court identification of the accused, if tendered for the purpose of proving the facts asserted, would be hearsay and, on the authorities, inadmissible.[190] However, it would be admissible if tendered as original evidence and not in order to prove the facts asserted:[191]
(a) When the act of identification is itself relevant—‘perhaps because a reward has been offered to a person making an identification or because it was an issue whether the person making the identification had knowledge that the person identified had committed a crime ...’[192]
(b) When the identifying witness has given evidence that he did identify someone as the person connected with the crime (implying that it was an accurate identification) but cannot now remember who it was that he identified. The evidence would be admissible to prove who was the person thus identified, not that he was correctly identified. ‘It explains and gives meaning to the evidence of identification given by the identifying witness in the witness box.[193]
(c) As an exception to the rule against prior consistent statements to confirm the testimony of the identifying witness by showing its consistency with his previous act ... admitted by analogy with the rule that allows evidence of complaints to be given in sexual cases or with the rule allowing proof of previous consistent statements to answer a suggestion of late invention.[194]
• Prior Inconsistent Statements. At common law evidence of a prior inconsistent statement of a witness who is not a patty may be used only to impugn the testimony of the witness and cannot be used as evidence of the facts stated in it. Legislation in two jurisdictions,[195] however, enables the previous inconsistent statements to be admitted as evidence of the facts stated in them. In some circumstances the same legislation could be used to secure the admission of prior consistent statements as evidence of the facts asserted.
• Dying Declarations. At common law, dying declarations are admissible only in trials for murder and manslaughter. The common law requires a belief in the imminence of death at the time the statement was made. This has been modified in three jurisdictions by legislation[196] providing that a degree of hope of recovery at the time the statement was made will not prevent its admission. In the ACT the exception has been extended to civil as well as criminal proceedings.
• Basis of Expert Opinion. An expert witness brings to his evidence a body of accumulated knowledge and will need to refer to recognised works of authority and other sources of data and opinion. He will also have to act upon statements made to him as to the relevant facts. Under the laws of evidence he is allowed to do this and give evidence of the materials he has relied upon—but only for the purpose of establishing the basis of his opinion. Without that it would be difficult to assess it.[197] The hearsay rule prevents the evidence being used to prove facts asserted. Necessity, however, has resulted in special exceptions being created to enable the expert’s evidence to be received for a hearsay purpose. Their scope is unclear. They include the expert’s accumulated knowledge (from past experience, statements of experts, texts, articles etc); reported data of fellow experts (from texts, articles etc); information commonly relied upon in an industry, trade or calling (from lists, registers, reports).[198]
132. Statutory Exceptions Including Business Records. Numerous inroads have been made into the hearsay rule by State and Territory legislation. It deals with statements in documents generally and with specific items such as transportation documents (eg bills of lading), tickets, statements of wages and telegrams, books of account, banker’s books, computer records, and a miscellany of public registers,—relating to proof of births, deaths, and marriages, proof of registers, proof of registers of vessels and ships articles, proof of registers of newspaper proprietors, and the proof of incorporation of companies.[199] The provisions which deal with transportation documents, statements of wages and proof of telegraphic messages do not exist in all States and Territories. The picture in relation to admissibility of written hearsay in business records and computer generated records is one of great disharmony throughout Australia in both civil and criminal proceedings. As to computer records, two different approaches have been taken in the legislation. One has been to enact legislation which in terms specifically deals with computer records and computer-produced evidence. The other approach has been to include computer records and computer produced evidence within the general legislation regarding business records. Between and within each type of approach there are significant differences. In some jurisdictions banker’s books provisions have been widened to cover all books of account.
133. Of particular significance. for the reference is the Commonwealth business records provision based upon the NSW business records legislation. Under that legislation, however, the statement in the record must be made by a qualified person or derived from information in a statement made by a qualified person. A qualified person is defined to mean the owner of a business or the servant or agent of a business and one who may reasonably be supposed to have personal knowledge of the facts stated. This legislation will apply to statements of opinion.
134. Even in the general legislation which exists in all States and Territories, which is based on or developed from the English Civil Evidence Act of 1938 there are significant differences. This legislation provides for the admission in civil proceedings of hearsay statements in documents if those statements would be admissible had they been given by direct oral evidence. In all jurisdictions one basis of admissibility is that the maker of the statement had personal knowledge of the matters in the statement and is called as a witness. However, the legislation also permits the admission of records which contains statements by persons without personal knowledge. The conditions vary. For example:
• Duty to Record; Continuous Record. As to statements in records, in Victoria and Queensland there is no requirement that a person be acting under a duty to record a statement. The document need only be a business record made in the course of a business. In some jurisdictions, however, there must have been such a duty and, in some, the record must be ‘continuous’.
• Fresh in the Mind. In Tasmania and the ACT the court must also be satisfied that the statement of fact or opinion was made at the time when the facts were fresh in the memory of the maker.
• Authentication. In all States and Territories other than Victoria and Western Australia it is provided that a statement in a document is not to be deemed to have been made by a person unless it was written, made or produced by him with his own hand, or was signed or initialled by him or otherwise recognised by him in writing.
• Calling Maker; Availability. Generally the legislation requires that the maker of the statement or, in the case of records, the supplier of information be called as a witness unless unavailable. What suffices to constitute ‘unavailability’ varies.
• Person Interested. In some States and Territories but not others the hearsay statement in the document is inadmissible if it was made by a person interested at a time when proceedings were pending or anticipated.
• Discretion to Exclude. In some States, even if the conditions of admissibility are satisfied, there is a discretion to exclude—in some States ‘if it is inexpedient in the interests of justice to admit it’; in New South Wales, if the weight of the statement is too slight to justify its admission or its utility is outweighed by a probability that its admission will be unfair or mislead the jury. In the ACT there is no discretion to exclude such a document in civil proceedings.[200]
• Opinion. There is uncertainty whether the legislation applies to statements of opinion except in Western Australia, Tasmania and the ACT.
• Criminal Proceedings. Only in the ACT and Tasmania does the legislation apply in criminal proceedings. The statutory discretions to exclude differ in these places. Somewhat similar legislation, however, has been enacted in a few jurisdictions, for statements in records not made from personal knowledge. It also differs between jurisdictions. For example only in Victoria and the ACT are statements made in connection with criminal investigations or proceedings excluded. Statutory discretions to exclude also differ.
Prudent businesses which operate in more than one jurisdiction would want to be able to satisfy the provisions of the legislation in all jurisdictions. That would be no easy matter to achieve because of the wide variety of legislation across Australia and the discrepant nature even of legislation of common ancestry.
135. What is an Admission? The law permits evidence of admissions to be given. The definition of ‘admission’, however, is uncertain. It is clear that it is an assertion, whether by statements or conduct, made by a party (in civil litigation) or the accused (in criminal litigation) and adduced in evidence by an opponent (including the prosecution). But there is a conflict of authority as to the existence of an additional condition—some definitions of admission require that it ‘must be in some way adverse to the party’s interest in the outcome of the actual proceedings’.[202] There is also uncertainty as to what statements and conduct may amount to admissions and the tests to be applied:
• Express (Intentional) Admission. There is disagreement over whether evidence of pleadings in one action is admissible as an admission in another action.
• Admission by Adoption of Third Party Assertion. There seem to be two (if not more) possible approaches when a statement made in the accused’s presence is tendered by the prosecution:
(a) The statement is admissible even if the trial judge believes that no reasonable jury could find that the accused adopted the statement (or exhibited a consciousness of guilt).
(b) The trial judge makes a preliminary determination of law whether there is any evidence from which a reasonable jury, properly directed, could infer adoption of the statement by the accused (or consciousness of guilt). If there is none, the statement is irrelevant and therefore inadmissible.
• Admissions by Silence. A problem area common to both admissions by adoption and implied admissions is that of inferences by silence. The general rule seems to be that, when a reply (denial) would reasonably be expected to a statement (accusation) in the circumstances, an adoption of the statement may be inferred from the silence of a party in response to it.[203] But where an accusation is made by a policeman after the accused has been advised of his rights,[204] the High Court held in R v Ireland[205] that the inference cannot be drawn from silence. The Judicial Committee of the Privy Council in Hall v R,[206] on appeal from the Jamaican Court of Appeal, held that no inference can be drawn from silence in the face of police questioning, even where the accused has not been advised of his rights, given his continuing common law right not to answer police questions. However, the English Court of Appeal in R v Chandler refused to follow the Privy Council, allowing inferences to be drawn from silence (before a caution), on the basis that the policeman involved and the appellant were on equal terms (a solicitor being present).[207] A number of Australian cases suggest that it is possible to draw inferences from silence before a police caution.[208] But Chief Justice Bray in Forrest v Normandale[209] expressly followed the Privy Council, as did Justice Campbell in R v Starr[210] refusing to distinguish between cases where a caution has and has not been given. It is not clear whether it is possible to draw inferences against an accused from his selective refusal to answer police questions (or silence in the face of particular questions).[211] Nor is it clear whether inferences can be drawn from silence where the accusation is by a third party made in the presence of a policeman.[212] There is a long line of cases to the effect that the accused’s failure to reveal a defence (eg an alibi defence) during police questioning affects its weight or at least allows a trial judge, in his summing up, to comment that this made it difficult for the Crown to test the trial defence.[213] This authority has been followed subsequently to Ireland and Hall.[214] Finally, further uncertainty has been added to this area by the decision of the Victorian Full Court in R v Salahattin[215] in which it was asserted that no rule of law exists, any reasonable inferences from silence being permissible.
• Admission by Third Party (Vicarious Admissions). A statement made by a person (an ‘agent’) who had actual or ostensible authority to make it on behalf of a party is admissible against that party. The position is uncertain where the admission, although unauthorised and not made in the course of an authorised communication, was made in the course of the agent’s employment in the sense in which that phrase is used in the law of torts. According to most authorities, the statement of the agent must have been made to a person other than the principal.[216] In Warner v The Women’s Hospital,[217] Justice Sholl qualified this rule by stating that documents created by agents for the purpose of fulfilling a duty to make such documents for the principal’s record would be admissible against the principal.[218] Some authorities, however, suggest that this qualification does not exist.[219]
Acts done and statements made by another person in the absence of the accused are admissible against the accused if done or made in furtherance of a common criminal purpose (eg a conspiracy) to which both are parties.[220] There is authority that the necessary common purpose may be proved by the very admissions which would be rendered admissible only by proof of the common purpose.[221] Chief Justice King of South Australia considered in R v Corak[222] that such reasoning was only permissible with conspiracy charges (in contrast with substantive charges where an accused may be convicted even without proof of common purpose). But the Victorian Full Court in R v Zampaglione,[223] a conspiracy case, held that there must be independent evidence of a conspiracy, although it need only show some ‘agreement’ or ‘preconcert’ between the parties rather than the specific conspiracy alleged.[224]
136. Personal Knowledge of Facts Admitted. The authorities differ on the ‘requirement’ of personal knowledge in facts stated in the admissions. There are some Australian cases which seem to take the approach that the truth of any admission made by the accused should be assumed, avoiding any investigation of his sources of information—at least in the absence of evidence raising a doubt as to the adequacy of the accused’s means of knowledge.[225] However a number of English and Australian cases proceed on the basis that an accused’s admissions only have probative value when concerned with his own ‘acts, knowledge or intentions’, and in relation to statements of opinion where an investigation indicates the accused’s knowledge (eg his familiarity with the drug he purports to identify)[226] is reliable.
137. Admission Containing Statement of Law. Justice Mahoney in Grey v Australian Motorists and General Insurance Co Pty Ltd[227] stated that ‘an admission may provide material from which a court may find a question of law, a question of fact, or a question being a conclusion from a mixture of fact and law: See Phipson on Evidence’.[228] However, Justice Glass, also in Grey, said it was his opinion that ‘a party cannot be asked to admit a conclusion depending upon a legal standard ... (such) an admission [is] by definition valueless’.[229] The matter is unresolved.
138. Introduction. In most jurisdictions the admissibility of admissions and confessions is governed by the common law. This imposes a voluntariness requirement which has been modified by statute in Victoria, New South Wales, ACT and the Christmas and Cocos (Keeling) Islands. The common law is set out and then the modifying legislation. A number of exclusionary discretions provided by the common law are then discussed.
139. Application of Common Law Rules. It is uncertain whether the common law rules encompass only full admissions of all the elements of the crime charged or extend to any admission of any element of the crime. The better view seems to be that of the House of Lords, in Commissioners of Customs and Excise v Harz,[231] which rejected any ‘difference between confessions and admissions which fall short of a full confession’.[232] For the purpose of this discussion of the law, ‘confession’ will be taken to include ‘admission’. It is not clear whether the rule applies only to statements adduced by the prosecution or extends to confessions adduced by a co-accused.[233]
140. The Voluntariness Test of Admissibility. Evidence of an alleged confession is not admissible in evidence in a criminal trial unless the trial judge is satisfied, on the balance of probabilities, that it was ‘voluntary’. In England the test of voluntariness seems to be: ‘have the prosecution proved that the (confession) was voluntary in the sense that it was not obtained by fear of prejudice or hope of advantage excited or held out by a person in authority, or by oppression’.[234] But in Australia, wider formulations have been adopted. According to the High Court in R v Lee,[235] ‘the word ‘voluntary’ in the relevant connection ... means ‘made in the exercise of a free choice to speak or be silent.’ The High Court did recognise two particular examples of involuntariness: ‘the typical case of a non-voluntary statement was the case of a statement induced by a threat or promise by a person in authority[236] and a statement made ‘because the will of the accused has been overborne or ... made as the result of duress, intimidation, persistent importunity or sustained or undue insistence or pressure’.[237] But the court thought it necessary to emphasise that ‘there seems to be really one rule, the rule that a statement must be voluntary in order to be admissible’. This general test of voluntariness raises a number of issues:
• ‘Free Choice’? It is not certain what ‘free choice’ means in this context. In particular, the authorities have not made it clear whether the accused must appreciate that he or she possesses a right to speak or remain silent and actually consider that choice before confessing. Where factors influence the accused to confess, it is unclear whether they must destroy his ability to choose altogether or whether it is enough that he would not have chosen to confess in the absence of a particular influence.[238] It is not clear whether the courts should consider the capacity of the accused to come to a considered decision as to whether or not to speak, and what to say. A related question is whether the finding of voluntariness is justified by the accused’s condition irrespective of how the condition arises. If the accused is unable to exercise a ‘free choice to speak or be silent’ it would seem irrelevant whether or not such inability was caused by external factors. This appears to be the view of a number of decisions dealing with accused persons suffering from reduced levels of consciousness (eg mental illness, drunkenness—see later). Nevertheless, the weight of authority appears to require a causal connection between some external factor and the accused’s confession.[239] The accused is assumed to have acted from a conscious choice unless that choice is ‘overborne’.[240] Voluntariness is defined negatively—if a confession is not the product of external factors it is regarded as voluntary.
• Must Conduct be Improper? Despite the general formulations of the voluntariness rule; Australian courts have concentrated on the need to isolate some particular impropriety on the part of police officers which interfered with the exercise of the suspect’s free choice to speak or remain silent. Thus the Full High Court in Lee[241] identified duress, intimidation, persistent importunity and sustained or undue pressure as matters which could render a confession involuntary through ‘oppression’.[242] Nevertheless, several Australian authorities have stated that police impropriety is unnecessary (if not irrelevant).[243] Similarly, there are authorities which turn on the failure of the police to take positive steps to ensure that for example Aboriginals or children are not overborne.
141. Relationship between General Rule and Specific Categories. The relationship between general formulations of the voluntariness rule and specific examples of its application has not been clearly determined. There seems to be a strong tendency to emphasise the latter at the expense of the principle.[244] Particular problems arise where the facts alleged in a case point to inducements by a person in a position of authority.
• What Constitutes an ‘Inducement’? An inducement involves some fear of prejudice or hope of advantage exercised or held out by a person in authority.[245] Two different approaches are taken to the scope of the concept:
(a) Traditionally, trivial inducements, ‘even the most gentle threat or slight inducement’ have been held capable of rendering a confession inadmissible.[246]
(b) Vague inducements are insufficient to vitiate a confession.[247] But there seems to be a conflict between those who would require the words to be a ‘real inducement’ on a reasonable man test[248] and those who emphasise that even the most innocent words may ‘induce’ a confession.[249]
• Formulations of Test. Is the test of involuntariness subjective or objective’? Two distinct formulations seem to have been adopted:
(a) A confession cannot be voluntary if it is preceded by an inducement (in the second of the above senses) unless the inducement is shown to be removed.[250] This approach does not require proof that the inducement induced the confession.
(b) A confession will be involuntary if the inducement actually induces (causes) the confession.[251] But it is not clear whether the inducement must be the sole cause, or the main cause, or just one of the causes of a confession.
• ‘Person in Authority’ Requirement. A major issue is whether ‘inducement by a person in authority’ is simply an example of conduct resulting in a finding of involuntariness or actually limits the circumstances in which such a finding can be made.[252] The Privy Council held in Deokinanan v R[253] that an inducement can only operate to make a confession inadmissible if it comes from a ‘person in authority’.[254] Australian authorities have invariably involved a person in authority (or by another in the presence of such a person). But it has not been authoritatively determined in Australia that an inducement from a person not in authority cannot render a confession involuntary. Indeed the general statements of the High Court in McDermott and Lee seem to indicate that the reverse is true although the actual discussions are ambiguous.[255] In any event there is no authoritative definition of a ‘person in authority’. Suggested definitions have ranged from ‘a person who has influence over the prosecution’ to ‘anyone whom the prisoner might reasonably suppose to be capable of influencing the course of the prosecution[256] to a ‘person most interested in the matter’[257] to ‘anyone who has authority over the accused’.[258]
142. There is also uncertainty on the question of whether a confession is rendered involuntary and inadmissible if made subsequent to an untrue representation.[259] Justice Dixon in McDermott v R[260] was of the view that the NSW legislative provision possibly extended the common law rule and the High Court in Basto v R[261] implied that such representations do not fall within the common law concept of voluntariness. However, there is some recent authority in both England and Australia which indicates that trickery, including untrue representations, is relevant to voluntariness.[262]
143. As to oppressive conduct, there is no doubt that ‘the oppression’ must actually operate to make the confession involuntary, in that it ‘should be attributed not to (the accused’s) own will, but to his inability further to endure the ordeal and his readiness to do anything to terminate it’.[263] Greater recognition is being given to the significance of psychological, rather than physical, pressure.[264]
144. Relevance of Accused’s ‘Personal Characteristics’. There is no doubt that the personal characteristics of the accused interact with any pressure or inducements to which he is subjected.[265] But it is far from clear whether confessions by special categories of accused may be found involuntary without any police misconduct (or, indeed, any ‘external’ factor) operating upon the will of the accused, and if so, it is uncertain what tests (if any) are used in such situations to determine the voluntariness question.
• Mental Incapacity. The leading Australian decision in this area is Sinclair v R.[266] While it might be possible to infer from Sinclair that an accused’s mental condition by itself may, if extreme, make his confession involuntary, it is difficult to extract the ratio of the case. It should be noted that Justice Brennan believed in Collins v R[267] that Sinclair was consistent with the view that admissibility (voluntariness) is determined only by the effect of ‘external’ factors, like coercion and inducement, upon the will of the accused. There are State authorities which appear to hold that an accused’s state of mind cannot, without more, render his confession involuntary (the question being therefore only one of exercise of the judicial discretion).[268] But there are numerous British Commonwealth and State decisions where it has been held that the accused’s mental state may (by itself) make his confession involuntary. Some of the different tests advanced in these cases include:
― ‘Incapable of appreciating the full extent and purpose of his words, or of doing justice to himself in his answers to questions put to him’;[269]
― ‘Incapable of appreciating that he had a choice to remain silent, or incapable of exercising sufficient volition to give effect to what he knew was such a right of choice’;[270]
― ‘In such a mental condition that the utterances were completely unreliable’;[271]
― ‘Not rational enough to make a true confession’;[272]
― ‘In such a condition that he was not competent to give evidence’;[273]
― ‘In a state of ‘complete emotional disintegration’;[274] and
― ‘So plainly unaware of his surroundings, of the identity of his interrogator, and of the drift of the questions put, that he is incapable of choosing whether to speak or not and is just gabbling’.[275]
• Children. The courts have generally emphasised the importance of the fact that an accused is a child when determining the issue of voluntariness.[276] It is unlikely that any Australian court would admit an accused child’s confession which was not made in the presence of an independent adult. But, apart from this proposition, there are variations in approach. In England it is simply stated that stronger evidence is required to show that the statement was voluntarily made if no parent was present.[277] In Victoria, it has been held that a failure to give the caution did not affect the voluntariness of the confession.[278] While in NSW it would seem that not only should the parents be present but also that the caution should be explained to the accused.[279] The Queensland courts have closely scrutinised confessions obtained from children and have adopted a number of guidelines directed to ensuring that a child is not overborne.[280] There does not need to be anything positive in the conduct of the police that could be said to oppress the child for the confession to be held involuntary.[281] Rather, the Queensland cases turn on the failure of the police to take sufficient action to ensure that the child is not overborne.[282] A similar approach is now taken in Western Australia.[283]
• Aboriginals. With respect to Aboriginals there are considerable variations in approach:
― Northern Territory. The Anunga[284] guidelines require, among other things, the presence of a ‘prisoner’s friend’ and great care in administering the caution. The rules appear to go to voluntariness as well as exercise of discretion.[285]
― South Australia. The South Australian Police Commissioner has issued guidelines for questioning aboriginal suspects, which are not as comprehensive as the Anunga Rules. They have not significantly affected the determination of questions of voluntariness (although they are relevant to exercise of the discretion). The reason for this seems to be the approach of the courts to the voluntariness rule which requires serious police impropriety (misconduct) in order to make a confession involuntary. Failure to accord with the guidelines, unless it is part of police misconduct in the form of violence, threats or inducements, is not enough.[286] But note that Justice Wells stated in R v Williams[287] that the characteristics of the individual aboriginal will be relevant (not decisive) if the interrogating officer was aware of such characteristics.
― NSW. There are no special rules to assist aboriginals in their dealings with the police and the Anunga Rules have not been applied. In Dixon v McCarthy,[288] Justice Yeldham thought irrelevant the fact that the juveniles accused were Aboriginals,
145. Inadmissible Confessions and Consequentially Discovered Evidence. Where evidence is discovered as a consequence of an involuntary confession there are conflicting authorities on the admissibility of both that evidence and the (otherwise inadmissible) confession-total inadmissibility of both; admission of the discovered real evidence alone; admission of real evidence and evidence of source of information; admission of real evidence and relevant portion of confession and admission of both.[289]
146. Statutory Modifications. Section 149 of the Victorian Evidence Act 1958 provides in part:
No confession which is tendered in evidence shall be rejected on the ground that a promise or threat has been held out to the person confessing, unless the judge or other presiding officer is of opinion that the inducement was really calculated to cause an untrue admission of guilt to be made.
The ACT has a similar provision.[290] Like the Victorian provision, it imposes an objective test. However, unlike the Victorian provision, the onus of proof is on the prosecution to establish that an untrue confession was not a likely result of the inducement. Also unlike the Victorian provision, it applies only to cases in which the confession would have been excluded at common law on the ground that it had been induced by a threat or promise made or given by a person in authority and on no other ground. Other cases covered by the common law (eg confessions unfairly obtained) remain unaffected.
147.Section 410 of the New South Wales Crimes Act 1900 states:
410 (1) No confession, admission, or statement shall be received in evidence against an accused person if it has been induced —(a) by any untrue representation made to him by the prosecutor, or some person in authority; or
(b) by any threat or promise, held out to him by the prosecutor, or some person in authority.
(2) Every confession, admission, or statement made after any such representation or threat or promise shall be deemed to have been induced thereby, unless the contrary be shown.
(3) Provided that no confession, admission, or statement by the accused shall be rejected by reason of his having been told, by a person in authority, that whatever he should say might be given in evidence for or against him.
In Norfolk Island, s 410 of the Crimes Act 1900 also applies but the words ‘by the prosecutor, or some person in’ authority;’ have not been included in sub-section (1)(a).
148. Discretion to Exclude—Probative Value Outweighed by Prejudice. One problem area is unsigned records of interview. Justice Gibbs in Driscoll v R[291] considered that it will sometimes be desirable to exclude unsigned records of interview ‘in the interests of justice’, because the ‘paramount requirement is that the trial should be conducted fairly.’[292] But he did recognise that there would be cases in which ‘it would be plainly right’ to admit an unsigned record of interview. The other members of the High Court adopted similar, but distinct, views. Justice Murphy agreed with Justice Gibbs but added that ‘a trial judge’s discretion to exclude admissible evidence should generally be exercised against the admission of an unsigned record of interview where the accused disputes its correctness’,[293] while Chief Justice Barwick, although considering that the record may have an ‘undue influence’ in the jury room, emphasised that ‘in determining what is fair in the circumstances, the judge must not lose sight of the interest of the Crown as representing the community in the conviction by due and fair process of those who break the law.[294] In some States courts seem to have minimised the significance of Driscoll, holding that it leaves unqualified the discretion of the trial judge with respect to unsigned records of interview.[295] Some judges have, however, argued that Driscoll comes close to reversing the onus—that ‘some positive reason should be established [by the prosecution] before the possibility of the prejudice referred to is permitted by the admission of an unsigned record’.[296]
149. Discretion to Exclude—Illegally or Improperly Obtained Admissions. Despite some earlier doubt, the High Court in Cleland v R[297] unanimously held that the ‘principle of Bunning v Cross is not limited to real evidence but extends to confessional evidence’.[298] But the High Court differed over the application of such a discretion:
• Chief Justice Gibbs and Justices Wilson and Dawson considered that it would be ‘most exceptional’ to exclude a voluntary (and fairly obtained) confession on this basis.[299]
• Justice Deane considered that the rationale of the principle was to be found in the ‘undesirability that such unlawful or improper conduct should be encouraged either by the appearance of judicial approval or toleration of it or by allowing curial advantage to be derived from it’, but that the onus of persuading the trial judge to exercise the discretion lay on the accused.[300] Nevertheless, he did not think it clear that the balancing of the public policy considerations did not favour exclusion of the confession. He commented:
Where a confession has been procured while the accused was unlawfully imprisoned by the police, special circumstances, such as the illegality being slight, would commonly need to exist before the balancing of considerations of public policy would fail to favour the exclusion of evidence of the confession.[301]
• Justice Murphy stated that the onus (to the balance of probabilities) lay on the accused to prove that the (confessional) ‘evidence was obtained by unlawful or improper means’. But ‘where a confession was obtained by unlawful or improper conduct then, in my opinion, the evidence should generally be excluded’.[302]
150. Discretion to Exclude—Grounds of Unfairness. The Full High Court in R v Lee[303] held that a trial judge has a discretion to exclude confessional evidence when, ‘having regard to the conduct of the police and all the circumstances of the case, it would be unfair to use his own statement against the accused.[304] The rationale of this discretion is uncertain. Justice Dixon in McDermott v R emphasised ‘the principle that no one should be compelled to incriminate themselves,[305] while Chief Justice Latham implied by his suggested examples of unfairness that the rationale was the exclusion of unreliable, albeit voluntary, confessions (‘examples of such unfairness would be afforded by irresponsibility of the accused on the occasion when the statement was made or failure on his part to understand and appreciate the effect of questions and answers.’)[306] The Full Court in Lee mentioned both these considerations and also quoted Justice Street (as he then was) in R v Jeffries:[307]
The obligation resting upon police officers is to put all questions fairly and to refrain from anything in the nature of a threat, or any attempt to extort an admission.[308]
Nevertheless the High Court’s view seemed to be that it was not concerned per se with any public policy to discourage unfairness or impropriety among police officers.[309] Rather, the basis was unfairness to the accused, the circumstances under which the confession was made indicating that it was ‘unfairly extracted’ and ‘unreliable’.[310]
151. The decision of the High Court in Bunning v Cross injected considerable uncertainty into the scope of this Lee discretion, with State courts not only unsure whether the Bunning discretion applied to confessions[311] but unsure how the two discretions could be reconciled. The South Australian Supreme Court has generally held that the ‘unfairness’ and ‘public policy’ tests should both be applied, independently,[312] while the Western Australian Court of Criminal Appeal in Frijaf v R[313] seemed to combine the two tests into one discretion.[314] Different members of the Federal Court in Collins v R[315] reflected these two positions.[316]
152. Additional confusion has been added by the recent High Court decision of Cleland v R[317] a case in which the accused was held in police custody unlawfully for a number of hours and allegedly confessed during that period. While it was agreed that a trial judge has a discretion to reject a voluntary confession if he considers that it would be ‘unfair to use it against the accused’,[318] the respective justices gave differing expositions of the content of this ‘fairness’ discretion, and applied it differently. It may be tentatively concluded that two High Court justices (Chief Justice Gibbs and Justice Wilson) see the discretion in terms of improper police pressure, one (Justice Deane) sees it in terms of procedural or substantive fairness, another (Justice Dawson) as a question of reliability, and yet another (Justice Murphy) as an aspect of the general discretion to exclude evidence more prejudicial than probative. It is interesting to note that Justice Brennan, now a member of the High Court, expressed the view in the Federal Court decision of Collins v R[319] that ‘the room for the operation of the discretion is narrower ... than is, frequently supposed’, but that the ‘circumstances’ and ‘factors’ taken into account in exercising the discretion are numerous, including .’the interest of the Crown as representing the community in the conviction by due and fair process of those who break the law’.[320]
153. One particular problem area is the Judges’ Rules. Although they indicate some of the requirements of treatment which ought prima facie to be accorded a suspect, contravention of those rules is not decisive. It is indicative of a departure from the standards which the court thinks appropriate in the generality of cases. The treatment properly accorded the accused depends on all the circumstances. Australian judges, generally, have not insisted on their strict observance.[321] A number of uncertainties are noted in Appendix C.[322]
154. Uncertainty. Whether there is a discretion to disallow improperly obtained evidence is not clear. The Privy Council indicated in Ibrahim v R[324] that an unfairly obtained admission ‘could not be excluded when tendered against a tortfeasor, although a jury might well be told as prudent men to think little of it.’ But more recent English and South Australian cases have suggested that improperly obtained evidence could be excluded in civil cases on public interest grounds or by adopting the concept of abuse of process.[325]
155. Is there an Exclusionary Rule? It is generally accepted that there is a rule that opinion evidence will not be admitted in a trial.[327] However, the formulations of the rule tend to be extra-judicial[328] and often differ in their detail.[329] The rule is subject to numerous exceptions the best known of which allows experts to express opinions. But there are also many exceptions relating to non-expert opinion evidence. It is unclear, however, whether other exceptions would be recognised. For example, there is possibly an exception which allows opinion evidence where the person giving the opinion is in a better position than the judge or jury to draw inferences.[330] The exceptions are so extensive that McCormick has argued that the rule is not a rule against opinion evidence, but ‘a rule conditionally favouring’ it.[331]
156. Definition of Opinion. ‘Opinion’ has been defined as ‘an inference from observed and communicable data’.[332] It has to a significant extent been assumed that a dichotomy can be drawn between evidence of ‘fact’ and of ‘opinion’, the function of stating facts being that proper to the witness and the function of drawing inferences or giving opinions being that appropriate for the judge and jury.[333] The matter was recently examined by Justice Cox in R v Perry (No 4).[334] His Honour acknowledged the difficulty that is encountered in defining the difference between a statement of fact and one of opinion, noting Wigmore’s assessment of it as a ‘false verbal antithesis[335] and at the same time conceding the well-established character of the dichotomy. He concluded, however, that the definition such as ‘inferences from observed and communicable date’, strictly resulted in many statements being technically classed as ‘opinion’. Justice Cox propounded a different interpretation of the meaning of ‘opinion’. Basing himself on one of the Oxford English Dictionary meanings, he fastened on its aspect of being ‘unsettled’, ‘a disputable point’, and affirmed the dicta of Lewis,[336] quoted by Wigmore:[337]
The essential idea of opinion seems to be that it is a matter about which doubt can reasonably exist, as to which two persons can, without absurdity, think differently. The existence of an object before the eyes of two persons would not be a matter of opinion, nor would it be a matter of opinion that twice two are four. When testimony is divided, or uncertain, the existence of a fact may become doubtful, and, therefore, a matter of opinion.[338]
Mr Justice Cox went on to make use of this test and to decide that the evidence given by an analytical chemist concerning the presence or absence of lead or arsenic was properly to be regarded as constituted of statements of fact, there being no reasonable scope for doubt over the findings. The definition of Mr Justice Cox is significant and awaits further judicial consideration.
157. Who is an Expert? The High Court appears, on occasions, to have taken a different approach to English courts on the question whether an expert may be qualified through experience.[339] In England it has consistently been held that the expert need not have formal academic qualifications, and that expertise can be acquired through experience. In Weal v Bottom,[340] Chief Justice Barwick maintained an expert to be ‘a person who by study and instruction in some relevant scientific or specialised field was able to express an opinion, founded on scientific or specialised knowledge thus acquired’ easily distinguishable from a common witness who had acquired his skill through experience and observation. Different positions have been taken on this point by other Justices of the High Court—Justice McTiernan apparently favouring the English position, Chief Justice Dixon being somewhat ambiguous but tending to the English position and Chief Justice Barwick and Justices Menzies and probably Taylor (possibly with Justices Windeyer and Kitto) exhibiting opposition to the possibility of expertise acquired by experience. Nevertheless, it is by no means rare for persons qualified mainly or even solely by experience to testify as experts. A New South Wales example of this is McAllerter v Richmond Brewing Co[341] where an experienced hotelier was allowed to give evidence as an expert that he had over a period of time observed the bar trade in a particular hotel with a view to making an offer for the licence, and that in his opinion the volume of business being done was sufficient to warrant a representation made by the defendant as to the takings. In Dixon v City of Glenorchy[342] objection was made to a valuer giving evidence as an expert on the ground that he was not qualified. He agreed that he had not passed valuers’ examinations and that he had not previously conducted a valuation in the area. Justice Chambers overruled the objection and admitted the evidence on the basis that the valuer was sufficiently qualified, with the objections going only to the weight of his evidence. A more unequivocal statement of this principle was that of Chief Justice Green in 1981:
When a court is determining whether a witness is qualified to give opinion evidence, the crucial issue is whether the witness in fact possesses the requisite knowledge or skill, not how or in what capacity he acquired it.[343]
158. Additional Limits-Common Knowledge. Expert opinion will not be admitted about matters of common knowledge.[344] Two distinguishable approaches have, however, been taken by the courts. Some recent judicial statements have applied a functional approach:[345] will fact-finding be assisted by evidence on the point from an expert? The more traditional approach is that any matters within ordinary human experience cannot be the subject of expert opinion evidence. So for example it has been held that psychological evidence is inadmissible about the behaviour of ordinary persons.[346]
159. Additional Limit—A Recognised Area of Expertise. There have been indications in some recent Australian cases that expert evidence is receivable only on a recognised area of expertise. For example in R v Gilmore[347] the accused sought to tender evidence from an expert in voice analysis based on use of a spectrograph. The trial judge rejected the evidence. substantially on the ground that it had not been established that the field of voice analysis by means of a spectrograph was a recognised field of scientific knowledge, capable of being the subject of expert testimony in court.[348] In the court of criminal appeal, it was held that the evidence should have been admitted. Chief Justice Street accepted the need for ‘recognised field of expertise’ test to be satisfied and held that the requirement was satisfied. The High Court has not yet specifically addressed itself to this concept. Chief Justice Street in Gilmore referred to US cases imposing such a requirement. However he did not outline the means to be used to determine whether the test was satisfied. In the United States the test has given rise to many problems and much litigation.
160. Additional Limit-The Ultimate Issue. It has commonly been stated that a witness may not be asked to testify as to an ‘ultimate fact in issue’—a question which the court or the jury has to determine; whether a person is guilty or innocent or is criminally responsible or was negligent or had the capacity to execute a will. The rule is most often invoked in connection with expert opinion but applies generally to all witnesses. The rule forbidding evidence as to an ultimate issue has been productive of controversy and doubt.[349] It is a rule with ill-defined exceptions,[350] and has always been able to be circumvented by careful choice of words.[351] In R v Palmer,[352] denying the traditional formulation, Justice Glass stated:
The true rule, in my opinion, is that no evidence can be received upon any question, the answer to which involves the application of a legal standard.[353]
The authorities also differ about the scope and content of the rule. Uncertainty is created by the gap between legal theory and practice. Many examples exist of evidence on ultimate issues being admitted. It is common where the ultimate issue is an insanity defence for medical witnesses to be asked whether in their opinion the accused at the relevant time and place knew the nature and quality of his act and whether it was wrong .[354] Evidence has also been accepted on the issue of the materiality of the representation in an application for insurance,[355] on the issue in a marine case of proper seamanship[356] and on the issue of negligence in malpractice actions against professional men.[357] In criminal cases a medical witness may properly be asked whether the deceased died from natural or unnatural causes, whether or not wounds were self inflicted,[358] and whether the bride in the bath died from epilepsy or drowning.[359] Witnesses have been allowed to express the opinion in drunk driving cases that the defendant was under the influence of alcohol.[360] The effect of the proscription upon evidence on questions of mixed law and fact, however, is no more than to alter the form of the question asked of the expert by counsel so as to ensure that the expert is confining himself to non-legal language that will nevertheless establish the same point.[361] One of the few things that can be asserted with confidence in relation to the ultimate issue rule is, therefore, that a witness, be he expert or common, may not offer his opinion on any matter which involves his use of a ‘legal’ term. So too, there is a substantial move away from the concept that evidence should never be given on any ultimate issue. A clear test, however, has yet to emerge.
161. Opinion Based on Inadmissible Evidence. The status of opinion evidence based on material that is not already admitted into evidence is a matter of some controversy. Phipson notes:
An expert may give his opinion on facts which are either admitted, or proved by himself, or other witnesses in his hearing, at the trial, or are matters of common knowledge; as well as upon hypothesis based thereon. His opinion is not, in general, admissible upon materials which are not before the Jury, or which have been merely reported to him by hearsay.[362]
In Sych v Hunter[363] where it was held that psychiatric evidence based in part upon the testimony of a mother who was not called to give evidence was ‘clearly inadmissible’.[364] Chief Justice Bray said:
I can understand how desirable it may be in a scientific sense for the psychiatrist to acquaint himself with the opinions, the attitudes and the personalities of patients’ close relatives and friends, but it cannot be too clearly emphasised that from the point of view of the law all this, if it takes place in the parties’ absence, is hearsay or opinion founded on hearsay and has to be excluded in justice to those who have had no opportunity of testing it.[365]
In Ramsay v Watson, however, the High Court had earlier taken the view that the consequence of not proving the factual basis is that the opinion may be of ‘little or no value’.[366] This was also the view of Mr Justice Blackburn (as he then was) in Milirrpum v Nabalco Pty Ltd[367] where His Honour considered the basis upon which an anthropologist gives his evidence as an expert:
To rule out any conclusion based to any extent upon hearsay—the statements of other persons—would be to make a distinction, for the purposes of the law of evidence, between a field of knowledge not involving the behaviour of human beings (say chemistry) and a field of knowledge directly concerned with the behaviour of human beings, such as anthropology. A chemist can give an account of the behaviour of inanimate substances in reaction, but an anthropologist must limit his evidence to that based upon what he has seen the aboriginals doing, and not upon what they have said to him.[368]
His Honour went on to note that the expert, after all, was the one most qualified to distinguish between the relevant and the irrelevant and the worthwhile and the worthless. While prepared to affirm the existence of a policy that demands that ‘every opinion must be shown to be based either on proved facts or on stated assumptions,[369] His Honour questioned the validity of the fact/opinion dichotomy and viewed the situation in a very flexible way:
It seems to me that the question is one of weight, rather than of admissibility, of the evidence, and that the court must be astute to inquire how far any conclusion proffered by an expert is indeed based on facts and to weigh it accordingly; but the ‘facts’ include those ascertained by the methods, and described in the terms, appropriate to his field of knowledge.[370]
However, most recently in the criminal context[371] Justice Kaye of the Full Court of the Victorian Supreme Court cited Ramsay v Watson as authority for a basis rule.[372] In the same case, moreover, Chief Justice Young commented that:
It would have been necessary to prove by admissible evidence the facts upon which such an expert may base his opinion before the opinion can be received.[373]
In the light of this the status of Ramsay v Watson is rendered quite unsure. It may be that a different attitude is being adopted to the basis rule in the criminal context, but, for the present, uncertainty exists in both civil and criminal spheres as to whether the basis rule should operate as a criterion of admissibility or merely of weight.
162. Evidence of Convictions in Civil Trials. According to the rule in Hollington v Hewthorn[375] a conviction is inadmissible in later civil proceedings to prove the facts on which the conviction is founded. That rule applies in some Australian States but not in others.
• Common Law Jurisdiction. The common law applies in New South Wales, Victoria, Tasmania and Western Australia. In Victoria Hollington v Hewthorn was distinguished in Moore v Giofrelle,[376] on the basis that an admission in earlier criminal proceedings is admissible against the same defendant in later civil proceedings. Also convictions were received in Victoria in Re 396 Bay St, Port Melbourne[377] to support a police application that a house be declared premises where liquor was sold without a licence. The convictions were under the Licencing Act, and were of persons found upon the premises. Implicitly the convictions seethed to be relevant because they were evidence of the facts on which they were based viz unlicenced sales of liquor on those premises.
• General Statutory Provisions. In Queensland and the Australian Capital Territory legislation[378] provides that the fact of an earlier conviction is admissible in evidence to prove that the person committed the offence. There are minor differences, although each is based on the Civil Evidence Act 1968 (UK). Legislation also exists in South Australia and the Northern Territory.[379] It differs from that in the ACT and Queensland in that:
― The conviction is only admissible in later proceedings against the person convicted and those claiming ‘through or under him’, not against third parties.
― There is no presumption that the conviction is correct—it merely ‘shall be evidence, of the commission of that offence’.
― A conviction ‘other than upon information in the Supreme Court’ is not admissible unless the court exercises its discretion to admit ‘in the interests of justice’.
― In South Australia and Northern Territory there is no definition of a ‘conviction’, so that it is unclear whether those provisions apply to convictions by courts-martial or a conviction that has been set aside, quashed or for which the person convicted has been granted a pardon (the ACT and Queensland exclude such convictions).
163. Convictions in Defamation Proceedings. The above describes the position in relation to civil proceedings generally. Proof of earlier convictions in later defamation proceedings is treated differently in some States. In New South Wales in defamation proceedings an Australian conviction is conclusive evidence that the person committed the offence and a foreign conviction is admissible evidence that the person committed the offence.[380] Under ACT legislation proof that a person stands convicted by a court of a criminal offence is conclusive evidence in actions for libel or slander that the person committed the offence.[381] There is a similar provision in the Queensland legislation.[382] Under South Australian and Northern Territory legislation a conviction is admissible but not conclusive in defamation proceedings.
164. Good Character of Accused. An accused may adduce evidence as to his general good character, but the orthodox view is that it must be limited to evidence of reputation.[384] However, the limitations are not observed in practice,[385] and there is recent authority suggesting that opinion evidence and evidence of particular acts is admissible to prove good character. New South Wales legislation permits evidence to show that the accused is ‘generally or in a particular respect a person of good disposition or reputation.[386] New South Wales and ACT legislation permits evidence of ‘habits, disposition and conduct’.[387] Other points on which there is uncertainty or disagreement are:
• The use to be made of evidence of good character. Views differ as to whether evidence of the good character of the accused may be used to disprove guilt[388] or in assessing the credibility of the accused[389] or prosecution witnesses (as well as disproof of accused’s guilt),[390] or for all of the above uses.[391]
• Rebuttal of Good Character. The prosecution is entitled to adduce evidence to rebut evidence of the accused’s good character. It is not clear, however, whether evidence of bad character adduced by the prosecution is admitted as evidence of guilt or only to neutralize the evidence of good character.[392]
• Cross-Examination of the Accused. In all Australian jurisdictions there is legislation permitting cross-examination of the accused by the prosecution or a co-accused to show ‘bad character’, where he has adduced evidence of ‘good character’. Permission of the court must first be obtained (in the absence of the jury) except in New South Wales. There is disagreement whether the cross-examination as to character extends beyond evidence of reputation to evidence of specific conduct or opinion.[393] In New South Wales the term used is not ‘bad character’ but ‘bad disposition or reputation’,[394] while it is ‘improper conduct ... or bad reputation’ in the ACT.[395] Further, it is not clear whether implications of ‘good character’, rather than direct evidence of it, are sufficient to bring the provisions into operation.[396] It is also uncertain whether evidence relating to disposition which is not evidence of bad character must therefore be evidence of good character.[397] The English view is that cross-examination under these provisions may be directed both to the probability of the accused’s guilt and to the credibility of the accused’s testimony.[398] In Australia, the position is not so clear. In R v Donnini[399] Chief Justice Barwick seemed to suggest that bad character proved by cross-examination cannot be used to prove guilt, but only to rebut good character or impugn credibility.[400]
165. Prior Misconduct of Accused. The law in this area is uncertain not least because of the general language used in the leading statements of the law. The leading case in the area of ‘similar fact’ evidence is the decision of the Privy Council in Makin v Attorney-General for NSW.[401] Lord Chancellor Herschell, in delivering the judgment stated:
It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue ...[402]
In Markby v R,[403] acting Chief Justice Gibbs, as he then was, regarding this passage as authoritative, restated the principles:
The first principle, which is fundamental, is that the evidence of similar facts is not admissible if it shows only that the accused had a propensity or disposition to commit crime, or crime of a particular kind, or that he was the sort of person likely to commit the crime charged. The second principle, which is a corollary of the first, is that the evidence is admissible if it is relevant in some other way, that is, if it tends to show that he is guilty of the crime charged for some reason other than that he has committed crimes in the past or has a criminal disposition.[404]
In the quoted passages and other judicial statements three concepts are referred to: character, disposition and propensity. Often it is not clear whether they are used interchangeably; indeed, it is probable that they overlap considerably in meaning. ‘Character’, according to the Concise Oxford Dictionary, is a ‘description of a person’s qualities’, inferred from a variety of sources. ‘Propensity’, again according to the Concise Oxford Dictionary, means ‘inclination or tendency’. A reasoning process via propensity involves inferring a person’s tendency to do a certain act simply from the fact that he has done similar acts in the past. The overlap with character reasoning[405] is clear, but the important difference is that ‘propensity’ is highly elastic in content. This has given rise to uncertainty. Other areas of uncertainty exist:
• Invalid Reasoning. The law is uncertain as to the reasoning processes which are not allowable. On one view, evidence tendered by the prosecution to show propensity is, like evidence of bad character, inadmissible.[406] But there is increasing support for the view that there is no rule of automatic exclusion for propensity evidence.[407] At the most, only reasoning via general propensity[408] is automatically prohibited. Evidence of a specific propensity may be so probative that it should be admitted, despite the dangers.[409] Justice Murphy stated in Perry v R that evidence of a specific propensity has in fact been admitted in the past,[410] ‘despite protestations to the contrary’, and the supposed rigid distinction between prohibited use of previous criminality to show propensity’ and other uses ‘is unsatisfactory’.[411]
The unsatisfactory nature of the distinctions has encouraged a different approach. Justice Wilson, without expressing a firm conclusion, noted in Perry ‘the impressive body of academic writing’ which takes the view that recent cases[412] interpret the traditional formulation not in terms of a rule of exclusion with certain categories wherein exceptions may be found, nor in terms of mere propensity or something more, but as requiring the court to compare, in the context of each case, the probative value of the evidence with the risk of prejudice it conveys.[413] In his opinion, ‘there is much to be said for this reconciliation of the twin principles stated by Lord Herschell, although there is no reason to treat any particular formulation as exclusive’. The Canadian Supreme Court recently adopted this balancing approach in Sweitzer v R,[414] ‘whatever the purpose of the similar fact evidence admission’.[415]
• Permissible Mode of Reasoning. As to the precise nature of permissible modes of reasoning, the courts have not clearly articulated the circumstances in which similar fact evidence may be admitted. Situations will vary.[416] One form of reasoning process which avoids any propensity reasoning is based on probability. Ordinary experience may suggest that a number of similar events are unlikely to have occurred coincidentally. The conclusion follows that they were the product of a single connecting cause.[417] Where the similar events involve deaths, this reasoning process may suggest murder rather than accident. The courts have not precisely defined the circumstances in which this reasoning process is available. The High Court considered the question in Perry v R.[418] On one analysis, Justice Brennan imposed two preconditions on the admissibility of similar fact evidence tendered for a reasoning process relying on probability: the trial judge must be satisfied; to an appropriate standard of proof, that the similar event occurred and that the accused could have been responsible for the similar event.
The other members of the High Court. while not expressly imposing such requirements, analysed the evidence in a manner consistent with this approach. It cannot be said, however, that they agreed on the content of the appropriate standard of proof on each issue. According to Chief Justice Gibbs it seems to be ‘established’.[419] To Justice Wilson it is ‘clearly proved’.[420] Justice Murphy required that the evidence ‘justify a finding beyond reasonable doubt’[421] while Justice Brennan himself required that it be such that ‘the jury could have been satisfied’.[422] The first two formulations emphasise the role of the judge, the last two suggest that the issue of fact is for the jury although the judge must decide if there is a prima facie case for the existence of the fact. Another possible limitation was canvassed by Chief Justice Gibbs who emphasised the importance of ‘striking similarity’ between the circumstances of the event in question and the event constituting the subject matter of the trial, although he did not suggest that it was always necessary for admissibility.[423] Only Justice Brennan adverted to the point stating that ‘evidence of a series of occurrences exhibiting a more attenuated similarity may be admissible’ if there are several such occurrences.[424] He emphasised that no one factor would be decisive in the assessment of probative value.
• Determining the Relevance of the Evidence. In Makin v AG For NSW,[425] Lord Herschell stated that similar fact evidence is admissible if it is ‘relevant to an issue’, and it is not rendered inadmissible if it ‘rebuts a defence which would otherwise be open to the accused’. The law in this area is unclear. Problems have arisen because a plea of not guilty puts everything in issue whereas not all issues may be contested by the accused. Approaches suggested include:
― Everything in Issue. The Crown is entitled to tender any evidence which would be admissible to rebut any defence theoretically open.[426] Indeed it has been suggested that this is the position if the prosecution knows that the accused is not going to raise a particular defence.[427]
― Not Dependent on Accused’s Defence. ‘Admissibility of the evidence does not depend on the line taken by the defence at the trial, that is, on whether the accused has raised or disclaimed a particular defence.’[428]
― Only Issues Genuinely in Dispute. It must be clear that the issue is ‘really in dispute’.[429] It must be ‘raised in substance’, as Lord Sumner stated in Thompson v R[430] or as Viscount Simon in Harris v DPP stated, ‘evidence of similar facts involving the accused ought not to be dragged in to his prejudice without reasonable cause.[431]
• The Content of Any Additional Rules Limiting Admissibility. The courts have differed on the question whether mere relevance via a permissible reasoning process is enough for admissibility. Part of the problem derives from uncertainty about the meaning of ‘relevance’.[432] Nevertheless the weight of authority favours the view that ‘a strong degree of probative force’ is required before ‘similar fact’ evidence may be admissible.[433] Variations include: ‘really material bearing on the issues to be decided;[434] ‘so very relevant that to exclude it would be an affront to common Sense’;[435] and making it ‘probable’ that the fact to be proved existed.[436] The High Court held in Perry v R[437] that similar fact evidence tendered for some legitimate reasoning process must have a probative value greater than mere relevance.[438] The admission of similar fact evidence is exceptional, and the onus is on the prosecution to justify such admission. However, there was no agreement on what was required over and above relevance.
Chief Justice Gibbs required ‘a strong degree of probative force’.[439] Justice Wilson quoted the Chief Justice, but then said there was ‘much to be said’ for the view that the evidence must have a sufficiently high degree of probative force to outweigh the inevitable prejudice ... He considered that there was ‘no reason to treat any particular formulation as exclusive’.[440] Justice Brennan required that ‘the probative force of the evidence clearly transcends its merely prejudicial effect;[441] but later ‘whether ... [the evidence] has that strong degree of probative force which warrants its exception from the primary exclusionary rule’.[442] In Sutton v R[443] Justice Deane echoed the transcendence test of Justice Brennan. Justice Murphy required that evidence of a similar event ‘must be excluded unless taken with all the other evidence it could justify a finding beyond reasonable doubt that the accused’ was responsible for that similar event.[444] At the extreme was Justice Dawson who held in Sutton[445] that similar fact evidence ought not to be admitted on the ground that it does not have ‘sufficiently strong probative force if there is a rational view of that evidence which is inconsistent with the guilt of the accused’. Again, differences are significant and appear to depend on the individual approaches of the members of the High Court.
• Judicial Discretion to Exclude. It is clear that a trial judge has a discretion to exclude otherwise admissible similar fact evidence. The Australian position is that similar fact evidence may be excluded if ‘its prejudicial affect outweighs its probative value’.[446] The law is unclear as to the availability of the discretion where there is more than one accused:
― Evidence adduced by the Crown against the Co-Accused. In New South Wales and Queensland authority favours the view that the trial judge has a discretion to exclude similar fact evidence relevant to one accused on the basis that it may be disproportionately prejudicial to a co-accused.[447] But the Western Australian Court of Criminal Appeal in Re Attorney-General’s Reference No 1 of 1977[448] held to the contrary.
― Evidence adduced by a co-accused. Justice Macrossan of the Queensland Supreme Court[449] and the New South Wales Court of Criminal Appeal in R v Murray[450] have held that a trial judge has no discretion to exclude relevant evidence adduced by one accused ‘because it may be a source of possible prejudice’ to a co-accused. But, in Victoria, Justice Jenkinson (with whom Chief Justice Young agreed) considered in R v Darrington and McGauley[451] that judicial discretion was available. The Victorian Full Court, however, in R v Gibb and McKenzie,[452] has recently suggested that such an exercise of discretion will necessarily be rare, and is not to be exercised simply because one accused wishes to elicit evidence of the bad character of another accused.
166. ‘Similar Facts’. A number of courts have insisted that evidence of prior conduct should have a high degree of probative value, or at least more than the minimum required for relevance. But others have required simple relevance. Standards adopted include:
• ‘Prior conduct evidence’ is only admissible when it ‘makes it probable’ that the fact to be proved existed;[454]
• ‘The collateral fact ... will when established be capable of affording a reasonable presumption or inference as to the matter in dispute’;[455]
• ‘Not too remotely relevant’;[456] and
• ‘Probability or increased probability, judged rationally upon common experience, that (the similar facts) would not be found unless the fact to be proved also existed’.[457]
Justice St John recently held that the ‘similar fact’ rules applicable in criminal trials applied in civil trial.[458] Sometimes evidence is tendered to prove a particular habit. The High Court[459] has allowed a plaintiff to call witnesses to prove that it was the plaintiff’s habit to wheel his bicycle instead of riding it at the point where the accident between the plaintiff and the defendant’s car occurred. It seems that ‘habit’ evidence, unlike ‘character’ evidence, is admissible. But the pre-conditions for admission of the evidence are unclear. The crucial test may be whether the evidence makes ‘it appear probable’ that, in the same circumstances, the same act will recur.[460] Justice Asprey in Connor v Blacktown District Hospital[461] suggested a number of factors must be present: a sufficient number of occasions of the relevant acts, the acts occurring in similar circumstances and uniformity of acts on those occasions.[462] Justice Jacobs, dissenting in that case, stated that habit evidence was only admissible when there was no direct evidence of the event in question. This limitation, however, was rejected by the House of Lords in McWilliams v Sir William Arrol and Co Pty Ltd.[463]
167. General There is little authority on the admissibility of ‘character’ evidence relating to ‘third parties’, apart from ‘victims’ in criminal cases.[465] It seems that where the disposition of a third party is relevant in civil proceedings, it may be proved by opinion evidence, evidence of reputation or specific instances.[466] But where it is sought to tender evidence in a criminal case of specific acts by a third party, for example a policeman, in order to draw a character inference, there are conflicting authorities:
• Similar Fact Rules Apply. In Duff v R,[467] the Federal Court held that the ‘similar fact’ rules of admissibility applied when it was sought to conclude from previous behaviour that a policeman was likely to induce a confession—despite the fact that the problem of prejudice to the accused did not arise.[468]
• Similar Fact Rules do not Apply. In Knight v Jones; ex parte Jones,[469] the Full Court of Queensland held that similar fact evidence showing a prosecution witness’ disposition to act in a certain way, if relevant, is not made inadmissible by reasons of policy and fairness, nor, apparently, by a concern for accurate fact-finding.[470]
168. Victims of Non-Sexual Crime. In R v Jackson,[471] Justice Menhennitt of the Victorian Supreme Court held that evidence of a victim’s character was admissible, on the issue of whether the accused believed that he should act in self defence, only if that character was known to the accused. Recently the Victorian Full Court in R v Gibb and McKenzie[472] has adopted the view that evidence of disposition may be led without any requirement of knowledge, but only as relevant to the accused’s state of mind. This suggests that evidence of a victim’s character would not be admissible to show how the victim was likely to have behaved in fact. But in South Australia in R v Howe,[473] it was held that evidence that a victim in a murder case was of violent disposition[474] could be led to support an inference that the accused had acted in self-defence. or at least in response to provocation.
169. Victims of Sexual Crime. Under the common law, a sexual crime complainant[475] may be cross-examined as to—general sexual reputation, sexual relations with the accused on occasions other than that complained of in the trial or sexual relations with persons other than the accused.[476] It has been far from clear, however, to what extent evidence can be led on these matters, because of uncertainty as to whether they are relevant to an issue, like consent, or only to the complainant’s credibility. But the orthodox view until recently was that, while evidence may be tendered on the first[477] and second[478] points, it could not be on the last.[479] However, the recent High Court decision of Gregory v R[480] established that acts of sexual intercourse with persons other than the accused may be probative of the fact that the complainant consented to have intercourse with the accused, or of the fact that the accused believed that the complainant was consenting. If evidence of this kind is [logically] relevant to an issue in the case, and not merely to credit, there is no rule of law that excludes it.
170. As a result of strong criticisms of the common law relating to evidence of prior sexual conduct of sexual offence complainants, reforms have been introduced in all States—but not in the Territories. But the legislation is inconsistent. The types of offences to which the provisions apply vary from State to State[481] and the proceedings to which the legislation applies also differ.[482] More important, evidence of prior sexual conduct is controlled in very different ways. Tasmania and South Australia exclude such evidence if it is only relevant to credibility but otherwise leave the question in the judge’s discretion. The other four states exclude evidence of sexual reputation while not absolutely excluding evidence relevant to credibility. But while Victoria and Queensland require only ‘substantial relevance’[483] to the issues, and that admission is ‘desirable in the interests of justice’, NSW and Western Australia have totally prohibited the admission of sexual conduct evidence subject to a number of exceptions. The exceptions relate to surrounding circumstances, a prior relationship with the accused, issues of identity, a specific motive for false complaint (to explain pregnancy or sexual disease) and, in NSW, to rebut prosecution evidence.
171. Legislation—General.[484] There are statutory provisions in all States and Territories giving a judge discretion to disallow cross-examination as to credit via character. Legislation in Queensland, New South Wales and the ACT refers to time considerations and other factors minimising the relevance of the subject matter to credit. The other jurisdictions include similar considerations but also refer to the question of whether ‘there is a great disproportion between the importance of the imputation made against the witness’ character and the importance of his evidence’.[485]
172. Finality of Answers to Cross-examination on Credibility. Authorities are agreed that it is a rule of evidence that the answer given by a witness to a question concerning a ‘collateral’ fact must be treated as final, and cannot be contradicted by other evidence:[486]
... The test whether a matter is collateral or not is this; if the answer of a witness is a matter which you would be allowed on your own part to prove in evidence—if it would have such a connection with the issues, that you would be allowed to give it in evidence—then it is a matter on which you may contradict him.[487]
There are differences and uncertainties as to the exceptions to the ‘collateral fact’ rule:
• Opinion. After a witness testifies to another witness’ reputation for truth and veracity, he may, except in the ACT and in New South Wales criminal proceedings,[488] also be asked whether he personally would believe the other witness on oath.
• Expert Opinion. There is uncertainty as to the power of the accused to call evidence relevant to the credibility of a witness or co-accused.[489]
• Prior Convictions. At common law, it is not clear whether, if a witness denies a prior conviction, evidence to prove it can be adduced.[490] In Pennell v Carruthers Bros Pty Ltd[491] it was held that the prior conviction could not be proved. Statutory provisions, except the Commonwealth, New South Wales and the Territories legislation, however, permit proof of convictions.[492]
• ‘Habits, Disposition and Conduct’. Section 413 of the New South Wales Crimes Act provides, in part, that:
Every witness examined as to character, whether of the accused or of any other person, may give evidence not only as to the general repute of such person, but also as to the witness’ own knowledge of his habits, disposition and conduct.[493]
Section 56(1) of the ACT Evidence Ordinance provides that:
Where evidence with regard to the character of a person is admissible in a proceeding, a witness may, in the proceeding, give evidence of the general reputation of the person and of the witness’ own knowledge of the habits, disposition and conduct of the person.
Like the New South Wales provision, it appears to abolish the traditional limitations on admitting evidence of a witness’ specific conduct relevant only to credibility. It applies to both civil and criminal proceedings. But the meaning of the preliminary words, ‘where evidence with regard to the character of a person is admissible’, is not clear. At the time this legislation was drafted the term ‘character’ meant ‘reputation’, but the provision seems to distinguish the two concepts. It may be that it is limited to the rare situation where the character of a person is a fact in issue. But the better view is that the clause is premised on the assumption that character evidence relevant to credibility may be adduced in rebuttal although it had traditionally been limited to evidence of reputation and opinion.
173. Credibility of the Accused. Legislation in Australian jurisdictions precludes the prosecution or any co-accused from asking, and, if asked, protects the accused from having to answer,[494] any questions which ‘tend to show’ that the accused has committed other offences, has been convicted of any other offences, has been charged with other offences or is of bad character. This prohibition is followed by a series of specific exceptions allowing such cross-examination where the evidence would have been admissible in chief, the accused has attempted to prove his good character, the evidence is adduced to establish the innocence of a co-accused,[495] the defence has attacked the character of prosecution witnesses or the accused has given evidence against a co-accused. Some differences and uncertainties exist in the formulation and interpretation of the exceptions.
• Attacks on the Character of the Prosecutor or Prosecution Witnesses. In all States and Territories, except New South Wales and South Australia, legislation exists, derived from English legislation, that is similar to s 15(2) of the Queensland Evidence Act which provides that an accused may not be cross-examined as to prior convictions or bad character unless:
(c) ... the nature or conduct of the defence[496] is such as to involve imputations on the character of the prosecutor[497] or of any witness[498] for the prosecution or of any other person charged in that criminal proceeding: Provided that the permission of the court to ask any such question (to be applied for in a trial by jury in the absence of the jury) must first be obtained; ...
Subtle distinctions permeate this branch of the law. To describe the prosecution witness as a liar may not be sufficient to cast aside the protection of the legislation,[499] but to assert that the prosecution witness is ‘a horrible liar’, and that his own brother would not speak to him, is a sufficient imputation. A mere denial of the Crown case and of the evidence tendered to support it cannot qualify as an imputation[500] but such a denial may involve an attack on the character of the witness sufficient to constitute an imputation.[501] The New South Wales and South Australian legislation differs substantively from that of the other States.[502] In NSW there is a discretion on the part of the trial judge to prevent cross-examination of an accused as to his record. Where such cross-examination is permitted it is limited to matters which are relevant to credibility alone. The protection is not lost unless the ‘main purpose’ of the cross-examination of the prosecution witnesses by the defence is to ‘raise an issue as to the witness’ credibility’. In South Australia, the shield is not lost where the imputations are ‘such as would necessarily arise from a proper presentation of the defence’. Moreover, imputations relating to conduct during the events of the alleged crime, the investigation, or the trial cannot lead to loss of the protection.
• Self-Incrimination Proviso. Section 399(4) of the Victorian Evidence Act provides:
(4) A person charged and being a witness in pursuance of this section may be asked any question in cross-examination notwithstanding that it would tend to criminate him as to the offence charged.
This provision has an identical counter-part in all Australian States and Territories[503] except Queensland and NSW.[504] There are two main views on the relationship between this proviso and the provision generally prohibiting cross-examination on matters of character:
(a) Literal View. The effect of the proviso is confined to taking away from an accused person the right to claim the privilege against self incrimination in respect of questions which would tend directly to criminate him as to the offence charged.[505]
(b) Broad View. The proviso permits cross-examination of an accused person through questions which would tend to criminate him directly or indirectly as to the offence charged. This would include proof that the accused had committed other offences or acts of misconduct on other occasions provided they were relevant to the issue of guilt. The prohibition, subject to its exceptions, relates solely to cross-examination as to credit.[506] This approach is taken in the NSW legislation—the accused, if he gives evidence, is open to cross-examination about any misconduct of which evidence would have been admissible during the case for the prosecution.[507]
174. Common Law. At common law a party seeking to prove the contents of a document is required to tender the original unless it is lost, destroyed or cannot be produced. Another exception to the rule enables copies of ‘public documents’ to be used notwithstanding that the original is in existence. It is unclear whether the person making the public documents must satisfy himself as to the truth of the contents in order that the document be admissible. It is also unclear whether these requirements apply to modern recording methods. The issue has arisen particularly in relation to tape recordings and transcripts.
• The Rule Not Applied. In Victoria, Queensland and Western Australia, there is authority that a patty may tender the tape recording and the transcript for the purpose of proving the contents of a conversation recorded on the tape recording. In R v Gaudion.[509] A tape recorded interview and a transcript of that recording were submitted as evidence. Mr Justice Brooking held that a transcript, proved or admitted to be correct, of a tape recording is admissible if the tape recording itself would, if tendered, be received. The original document is not a ‘document’ but a physical object on which information is recorded by means of ‘pattern impressions’. To ascertain what are the ‘pattern impressions’ it must be played using a loudspeaker or earphones. He ruled that production of a transcript was only another means of proving what was on the tape, and that once this is appreciated, it becomes apparent that a transcript is admissible irrespective of whether a tape recording is put in evidence.[510] The Court of Criminal Appeal in Queensland approved R v Gaudion in R v Beames.[511] It also stated the tape recording is a physical object and not a document. The sounds which are ‘locked up’ in the physical object may be proved either by playing the recording in court or by production of a verified transcript of it.
• The Rule Strictly Applied. In New South Wales[512] it has been held that a party must produce and tender a tape recording and play it to the court, it being the ‘best evidence’ unless the patties agree to the strict rules being relaxed.[513]
175. The competing positions were recently considered in Tasmania.[514] The Court of Criminal Appeal agreed that the transcript was properly admitted in evidence for the purpose of assisting the court to understand the sounds produced. Justice Nettlefold took the view that both R v Gaudion and Conwell v Tapfield and anor were incorrect. He disagreed with the view expressed in the former that a tape recording on which information is recorded is a physical object and not a document. He also disagreed that the ‘best evidence’ rule should be applied, as it was in the latter case. Instead, he based his argument on the primary evidence rule, arguing that the transcript was secondary evidence which contained valuable testimony to the terms of the original. Justice Neasey declined to express a view about the correctness of Gaudion and Beanies because the transcript had not been admitted at the trial as evidence of the contents of the tape but as an aid to understanding Justice Everett also held that the transcripts had been properly admitted as an aid to recollection of the tape recordings. He considered Conwell v Tapfield to be incorrectly decided as the actual tape recordings were tendered in evidence and thus the ‘best evidence’ was before the jury in primary form.
176. Legislation. In most jurisdictions, differing legislation has been enacted which modifies the common law rules:
• Reproductions Legislation. The application of the common law to modern copying techniques has been modified in different ways. Legislation dealing with the admissibility of reproductions such as photocopies and microfilm was enacted in the 1960’s and 1970’s in New South Wales, Queensland, Victoria, Tasmania and Western Australia.[515] Differences both of substance and detail exist in the legislation despite the fact that it is the result of an attempt at uniform legislation. The legislation of Victoria and Western Australia is virtually identical.[516] Legislation in those two States differs[517] from that of New South Wales, Queensland and Tasmania. The latter, while similar to one another also differ in some significant areas. Differences occur in—the definition of key terms, the elaborately prescribed contents of the various authenticating affidavits, the need to prove that the original document was in existence for a period and the precise duration of the period and the power to inspect it and obtain copies of documents.
With the exception of the Tasmanian legislation, provision is made in each of the other States for machines to be approved if the Attorney-General is satisfied that the machine automatically photographs documents passing through it in normal operating conditions at a speed which will prevent interference by the operator in the course of copying a document. It is understood that no machines have been approved in Western Australia. In other jurisdictions approval has been limited to rotary machines (which generally film the document as it is moving through the machine) or planetary machines (which generally film the document while it is stationary) have been approved. In New South Wales both types have been approved.
This attempt at producing uniform reproductions legislation was designed to facilitate adoption by business and government of new technology record storage, but it has hindered adoption.
• Other Reproductions Legislation.[518] In some of the jurisdictions there is no legislation similar to that referred to in the previous paragraph. There is, however, legislation in those jurisdictions which relates to the tendering of copy documents. Such legislation differs considerably. For example, the ACT’s legislation is confined to official documents, the Northern Territory’s extends also to documents held by ‘prescribed corporations’, and the South Australian legislation is unrestricted as to the type of document.
• Hearsay Legislation. In addition State and Territory legislation which relaxes the hearsay rule to enable statements in documents and records to be tendered contain provisions which enable copies of them to be tendered also. There are two approaches:
(a) South Australia, New South Wales and the Northern Territory.[519] A copy may be tendered if undue expense or delay would otherwise be caused. It has to be certified as a true copy in such manner as the court may require.
(b) Tasmania, Victoria, Western Australia, Queensland, and the ACT.[520] A general discretion to admit copies is given, and the court also decides on the appropriate way to authenticate the copy.
Reference has already been made to some of the other differences in this legislation.[521]
• Banker’s Books. In addition State and Territory legislation relating to ‘banker’s books’ and ‘books of account’ enable copies to be given in evidence. They must, however, be verified by evidence that the copy document was examined with the original and is correct. The Commonwealth, New South Wales, and Tasmanian ‘Business Records’ legislation would permit microfilmed bank and other financial records to be tendered.[522]
177. The picture which emerges is a mess of inconsistent and overlapping provisions, directed towards a variety of objectives. All are superimposed upon the common law rule. The differing legislation, as legislation for a federal country with a single business community, is defective in that what is admissible under the legislation of one State or Territory may not to be admissible in another State, or to be admissible may have to satisfy different requirements. Further, in deciding whether evidence is admissible, a court will often have to refer to a variety of provisions and to the common law.
178. Subject Matter. Authentication is concerned with confirming that evidence—for example, a document—is what the party adducing it claims it to be. Where appropriate, this may include evidence confirming the reliability and accuracy of devices used to produce the evidence.[524]
179. Common Law Requirements. There are differing and unclear pronouncements by the courts on the authentication requirements for some evidence:
• Presumption of Accuracy. There is some doubt whether, if evidence is led of the accuracy of the type of instrument, a presumption arises that it was working accurately on the occasion in question or whether more evidence is needed.[525]
• Tape Recordings. It has been held that tape recordings are admissible provided the accuracy of the recording is proved and the voices recorded properly identified.[526] What is meant by the requirement of ‘accuracy’ is unclear. In Magsud Ali much of the tape was indecipherable.[527] In R v Robson[528] defective tape recordings were produced.[529] They were admitted on evidence being given as to their provenance and history up to the time of their production in court. In Conwell v Tapfield,[530] Chief Justice Street stated that evidence of the trustworthiness of the recording and reproduction were, strictly speaking, required. He referred to the need for evidence of ‘the efficiency and capacity of the sound reproducing equipment’ or its ‘competence and capacity’. It may be therefore that judicial notice cannot be taken of the general trustworthiness of tape recordings.
180. There is also obscurity as to the standard of proof required for authenticating evidence. This issue does not appear to have been discussed to any great extent in the authorities. In practice the trial judge will admit evidence of objects and other evidence on being given an assurance that evidence capable of demonstrating its connection to the issues will be led. In practice, writings are admitted into evidence on the giving of evidence-in-chief as to their authenticity—that is, the court proceeds on the basis that it assumes that the evidence will be accepted. With evidence produced by devices or systems, however, the courts appear to have required that the trial judge be satisfied—presumably, on the balance of probabilities—as to the accuracy of the technique and of the particular application of it.[531] In the case of tape recordings, it has been held in England that a tape challenged as not being the original and authentic tape should be admitted if the prosecution set up a ‘prima facie’ case.[532] A ‘prima facie’ test was adopted because of concern about usurping the jury’s role—it should be for the jury to determine its authenticity.[533] In Australia there has been little discussion though in Conwell v Tapfield[534] a more stringent balance of probabilities test was applied.
181. Legislation. Commonwealth, State and Territory legislation contain many varied provisions which assume the need to authenticate documents and which are designed to facilitate that task. The legislation varies in its approach—specifying the evidence required to authenticate the document produced, dispensing with evidence of authentication for categories of documents, directing the taking of judicial notice of seals and signatures and raising presumptions of due signing and sealing.
182. In the ACT, for example, legislation[535] dispenses with evidence verifying the attesting signatures (where attestation is required as a matter of law) for documents other than wills. The provisions vary according to whether the document was executed in Australia, a Commonwealth country or another country and operate where the attesting witness comes within specified classes legal practitioner, judge, notary public, mayor, consular representative. The legislation also dispenses with the need to lead evidence that the attesting witness was of the class alleged in the document.[536] That legislation is unique in Australia. Other provisions to note which are not uniform are:
• Business Records—Commonwealth, New South Wales and Tasmania. In this legislation it is provided that documents and copies ‘may be authenticated in such manner as is prescribed or the court approves’.[537] It is also provided that in deciding questions of admissibility, inferences may be drawn from the document.[538]
• Business records—Tasmania and South Australia. In Tasmania,[539] a ‘writing purporting to be a memorandum or record of fact’ and in South Australia[540] ‘an apparently genuine document’ are admissible if business records.[541]
• Documents Containing Hearsay—South Australia. There is legislation designed to admit first hand hearsay in documents.[542] It is not restricted to business records. No authentication is required initially—it is enough that the document be ‘apparently genuine’. A discretion to exclude is provided.[543]
• Other Hearsay Legislation. Some hearsay legislation deals with specific types of document and dispenses with evidence authenticating them or reduces the amount of evidence needed to do so.
― Telecommunications.[544]—all jurisdictions but NSW, Victoria, ACT; the legislation can be utilized in civil trials only, except in South Australia.
― Transportation Documents.[545]—the provisions differ. The New South Wales and West Australian provisions apply only in criminal proceedings.
―Statements of Wages.[546]—provided for in Family Law Regulations (Cth),[547] in New South Wales for matrimonial and child welfare proceedings, and in the Australian Capital Territory and the Northern Territory for all proceedings.
― Certificate of Results of Scientific Tests.—authentication requirement is limited to evidence that the person who signed the certificate conducted an examination.[548]
• Computer Data and Output. In Victoria, Queensland, South Australia and the ACT, special legislation has been enacted which is directed to the proof of the accuracy and reliability of computer systems and permits the tender of computer output. The legislation addresses the issue of the evidence required to establish accuracy and reliability, but is intended to go further and enable proof of computer data and output notwithstanding rules such as the hearsay rule and the ‘best evidence’ rule. The legislation enables authenticating evidence to be given by a certificate. In addition, the legislation, except in South Australia, enables the court to draw inferences from the output as to satisfaction of the conditions of admissibility. Only in South Australia has the court power to direct the tendering party to call witnesses. A number of other differences exist between the legislation of the various States.[549] Computer data output is also covered by the business records legislation of the Commonwealth, New South Wales and Tasmania. This legislation renders a statement of a fact in a document admissible as evidence of a fact provided the document forms part of a record of business and the statement was made in the course of or for the purposes of the business and was made by a ‘qualified person or was reproduced or derived from one or more devices designed for and used for the purposes of the business in or for, recording, measuring, counting or identifying information, not being information based on information supplied by any person.[550] The legislation lists the rules that it abrogates and states that it ‘does not make admissible a statement that is otherwise inadmissible’. There is no mention in the list of any rules relating to evidence of the accuracy of devices and thus there is at best uncertainty as to whether the legislation removes any need for evidence of reliability or accuracy before the evidence may be admitted.[551]
183. The differences of the State and Territory laws on authentication of documents mean that the proof of, for example, business records and computer data and output will depend on where the case is heard. That is a particular concern for business operating throughout Australia.
184. Is a View Evidence? Under the Rules of Court of most jurisdictions in Australia, courts may ‘inspect’ property (including land) outside the court. The judges) may inspect, or may authorise a jury to inspect, the property. Some of the Rules permit the carrying out of ‘experiments’ on such property. But in Australia, a distinction is drawn for evidentiary purposes between a ‘view’ where the fact-finder uses his powers of observation (and other senses) to help to understand and assess the value of evidence adduced in court, and a ‘demonstration’ which involves actually taking additional evidence, whether by experiment, demonstration or reconstruction.[553] As Justices McInerney and Murphy stated in R v Alexander,[554] once the tribunal of fact is ‘asked to make assessments for [itself], to conduct experiments ... to watch demonstrations, or reconstructions, what is occurring is no longer a view as such, but the leading of evidence’. It is clear that, in Australia, a ‘view’ does not constitute evidence. But there is uncertainty about the line between a ‘view’ and a ‘demonstration’. Similarly, it is unclear when ‘mere observation’ becomes an ‘experiment to gather evidence’.
185. In England, the Privy Council held in Tameschwar v R[555] that while a view, coupled with a demonstration, is part of the evidence’, and a ‘view of this kind ... must be given in the presence of the tribunal which tries the case’, ‘these observations do not apply to a simple view without witnesses’. Nevertheless, the Privy Council had said, one year earlier, in Karamat v R,[556] that it is ‘clear’ that ‘a view is part of the evidence ... It is in substitution for or supplemental to plans, photographs and the like’. Although this latter case involved an actual demonstration, there has been continuing uncertainty in the case law, with a number of English judges[557] asserting that even a simple view constitutes evidence.
186. Introduction. Whether an item of evidence should be admitted in a trial is a question for the judge. When the admissibility, or possible discretionary exclusion, of an item of evidence is dependent on some finding of fact, that finding is also made by the trial judge.[559] The determination of this incidental issue is separate from the trial proper and is often referred to as a ‘voir dire’ hearing. Largely because of the paucity and antiquity of authority, except in relation to confessional evidence, this area is full of uncertainty.
187. Fact Relevant to Admissibility, also a Fact in Issue. Where the preliminary question of fact, upon which the admissibility of an item of evidence is conditional, is identical with an ultimate issue in the case (to be decided by the tribunal of fact) there seems to be conflicting authority on the role of the judge. Some cases have held that the judge decides the issue, others that he should admit the evidence if there is prima facie evidence of the fact and let the jury decide the issue.[560]
188. Presence of Jury. Different statements have been made about whether the jury should be present during the hearing and determination of preliminary questions of facts. In R v Reynolds[561] the English Court of Criminal Appeal stated that ‘it should be regarded as most exceptional that any evidence should be given in a criminal trial otherwise than in the presence of the jury’ and held that the evidence of a witness as to a child’s competence should have been given in front of the jury ‘because it will enable the jury to come to a conclusion as to the weight which they should attach to her [the child’s] evidence’.[562] But in Demirok v R[563] Justice Gibbs, with whom Stephen and Aickin JJ agreed, made the obiter remark that Reynolds has not settled the practice in Australia and that ‘there is no reason why the jury should be present when evidence is being given on’ a question of competence.[564] He concluded that if ‘evidence which the judge has to consider on the voir dire in deciding a question of competence or admissibility is likely to be prejudicial to the accused, it should be received in the absence of the jury’.[565] The meaning of prejudicial in this context is not clear.[566] Justice Gibbs implied that it would be prejudicial if a jury used evidence adduced on the issue of competence in relation to credibility (ie weight to be given to the witness’ evidence). Rather, the evidence should be given again before the jury.
189. Application of Exclusionary Rules. It is uncertain whether the trial judge is bound by all the exclusionary rules in determining what evidence to receive as proof of a fact constituting a condition precedent to the admissibility of an item of evidence in the trial. Wigmore asserted that in ‘preliminary rulings by a judge on the admissibility of evidence, the ordinary rules of evidence do not apply’[567] but he cited no authority for this proposition and most Anglo-Australian authorities[568] are closer to the more cautious statement in Cross that it is ‘probably true to say that the judge is not bound by all the exclusionary rules’ in a voir dire.[569]
190. An analogous question is whether ‘bootstrapping’ is permissible in a voir dire, that is, use of the very evidence whose admissibility is in question. It is normal for a witness whose competence to give evidence is in question to testify on the voir (lire, but it seems that the judge will not be relying on any assertion of competence by the witness but simply observing his or her behaviour in the witness box. Even if a judge does rely on such an assertion (eg ‘I am not married to X’) this may be on the basis that the burden of proving some fact is on the party asserting inadmissibility and the evidence is prima facie admissible. But where a party has the burden of establishing the existence of a fact conditional to admissibility, then it seems that the rules generally apply and ‘bootstrapping’ is not acceptable. For example, a third party’s assertion will not be admissible as a vicarious admission by a party’s agent without independent evidence of the agency relationship.[570]
191. Party’s Right to Voir Dire. Normally, the trial judge must consider the question of admissibility or discretionary exclusion if counsel requests such a determination. However, the precise position in the area of confessions is unclear. Australian courts have agreed that the accused has a right to a voir dire if an ‘issue’ or ‘real question’ of voluntariness or discretionary exclusion arises.[571] Where the issue is one of discretionary exclusion, the accused’s counsel will need, at least, to state the basis of the argument and give an assurance that relevant evidence will be called, because the onus of proof is on the accused.[572] But there seems to be a division between those authorities who consider that a voir dire must be held on an issue of voluntariness when the accused simply requests it after alleging involuntariness[573] and those authorities who state that a voir dire should not be used as a fishing expedition, implying that there must be some ‘material’ showing that there is a ‘real’ question as to voluntariness.[574]
192. Unsworn Statement and Voir Dire. It is uncertain whether the accused can make an unsworn statement in the voir dire. The question does not appear to have been judicially decided, but it seems assumed in most jurisdictions that the accused must give sworn evidence.
193. Confessions and the Voir Dire. A number of issues arise that are peculiar to the conducting of a voir dire in relation to an alleged confession.
• Question as to Truth of Confession. It is unclear whether the accused may be asked in cross-examination on the voir dire if his confession was true. The authorities differ:
(a) Permissible. The English Court of Criminal Appeal stated in R v Hammond[575] that a confession’s truth could be relevant to the question of voluntariness, eg in ‘oppression’ cases.[576] Thus it was often permissible for the accused to be asked in cross-examination on the voir dire if his confession was true,[577] a view followed by the South Australian Full Court in R v Wright[578] and by Justice Neasey in R v Toomey.[579] Nevertheless, these cases are unclear as to when the exactly the truth of the confession is relevant. They also seem to vary their analysis of situations where the trial judge should exercise his discretion not to permit the question to be put to the accused.[580] A majority of the High Court in Burns v R[581] decided that the truth of the confession was relevant to the question whether it was made, and in the process impliedly adopted the cases which thought it relevant to voluntariness.[582]
(b) Not Permissible. Chief Justice Latham in Sinclair v R[583] stated that, in considering a confession’s admissibility ‘the judge does not decide whether or not the confession is likely to be true or untrue’.[584] A majority of the Privy Council (4/1), on appeal from the Supreme Court of Hong Kong, held in Wong Kam-ming v R[585] that the accused could not be questioned during the voir dire as to the truth of his confession -the answer would have no effect on the accused’s credibility and was not at all relevant to the issue of voluntariness.[586] In their Lordships’ view, R v Hammond was wrongly decided and they accordingly overruled Hong Kong authorities which followed it. Note however the dissenting judgment of Lord Hailsham: ‘It seems to me impossible to say a priori that every question of truth or falsity of the statements must be excluded’.[587]
Even if the accused can be asked on the voir dire whether the confession is true, there is disagreement about whether he can claim the privilege against self-incrimination. It seems that in Queensland the privilege is available for the accused at the voir dire,[588] while in Tasmania it is not.[589] The situation is less clear in South Australia.”[590]
• Use in the Trial of the Accused’s Voir Dire Testimony. It is not clear whether evidence given on a voir dire may, without being repeated, be dealt with as evidence on issues other than admissibility. It probably can be, subject to the exclusionary rules,[591] but an exceptional situation may exist with respect to the testimony of an accused given on a voir dire. There is authority in South Australia and Tasmania to the effect that an accused may be cross-examined before the jury as to what he had said in the course of the voir dire and that those voir dire statements may be led in evidence against him,[592] subject to the general judicial exclusionary discretion.[593] In Queensland, Chief Justice Mansfield in R v Silley[594] seemed to imply that nothing said during the voir dire in the absence of the jury could be given in evidence subsequently in their presence. But Justice Skerman in R v Gray[595] refused to accept this as a general proposition, stating that the Prosecution could ‘call evidence to prove an inconsistent statement by the accused’ in the course of the voir dire (after cross-examination). Similarly, the Judicial Committee of the Privy Council has held in Wong Kam-Ming v R[596] that the prosecution cannot lead evidence regarding the testimony given by accused during the voir dire (even if the challenged material is admitted into evidence) but can cross-examine as to what the accused said if the challenged material was admitted and the accused has made statements in the trial proper inconsistent with his statements on the voir dire.[597] In the High Court decision of MacPherson v R,[598] Justice Mason seemed to accept this approach, while Chief Justice Gibbs and Justice Wilson simply stated that these ‘questions remain to be decided in this Court’.[599] The House of Lords in R v Brophy[600] did not clearly resolve the problem when it held that evidence given by the accused in the course of the voir dire, if it is relevant to that voir dire, is inadmissible in the substantive trial; it did not make clear whether it accepted or rejected the limited cross-examination exception suggested in Wong-Kam Ming.[601]
• Confession Denied and Allegations of Impropriety. In Mac-Pherson v R,[602] Chief Justice Gibbs and Justice Wilson were:
unable to see any distinction for present purposes between a case in which an accused who denies having made any confession alleges that he was subjected to inducements or pressure, and one in which the accused who also denies the making of a confession alleges that he was treated unfairly or improperly. In our opinion U voir dire should be held in both cases.[603]
What is not clear is whether the trial judge should, before proceeding to consider whether an alleged confession by the accused was voluntary or should be excluded under the discretion, decide only whether a reasonable jury could be satisfied it was made or go further and decide whether he is himself so satisfied. They did not expressly decide this issue, although they did re-assert that the ‘condition of the admissibility of a confession is that it was voluntarily made’.[604] They did however refer approvingly to the decision of the Judicial Committee of the Privy Council in Ajodha v The State.[605] The Privy Council held that, where an accused denies making any admissions but admits signing a fabricated confession under duress, the trial judge will have to consider the question of authorship before deciding the issue of voluntariness. The question arises whether the same conclusion would follow where the accused claims he made no admissions, but asserts that the circumstances of interrogation were such that any admissions (had they in fact been made) would have been involuntary. Justice Murphy in Cleland v R[606] clearly thinks so, arguing that it would be ‘artificial’ to decide the voluntariness of a confession without any ‘satisfaction’ that it was made. But the rest of the High Court in Cleland did not advert to this question.
194. The Accused as a Witness for the Prosecution. At common law, the accused is not a competent witness for the prosecution. The common law rule continues to apply in Tasmania, South Australia and Victoria. In other States and Territories the relevant legislation makes the accused competent as a witness under provisions of general application. In the ACT legislation it is also provided that the person charged is not liable to be called by the Crown. This proviso applies in New South Wales and the Northern Territory but not in relation to summary offences. A different limitation is imposed in Western Australia in that an accused person while competent may only be called upon his own application.[608]
195. Compellability for the Prosecution. With some specific exceptions,[609] the general rule applies that an accused person is not a compellable witness for the prosecution. This derives from the common law where it applies in Tasmania, South Australia and Victoria and is specifically stated in or is the result of the New South Wales, Tasmanian, Western Australian, Northern Territory and ACT legislation referred to above.
196. Compellability of Spouse for the Prosecution. In some States and Territories but not others the common law as to compellability is preserved by legislation. Although the weight of authority in Australia supports the view that any competent witness is compellable, the House of Lords recently held that spouses, although competent are not compellable.[610] In some States and Territories the compellability of a spouse depends upon the offence. The choice varies. In some jurisdictions a spouse can be compelled to give evidence on charges of murder, rape, carnal knowledge, ill treatment and neglect of children and kidnapping, for example.[611] In Victoria the legislation which makes a spouse compellable gives the court a discretion to exempt a spouse[612] where the interest of the community in obtaining the evidence is outweighed by the likelihood of damage to the relationship or the harshness of compelling the giving of the evidence or both. A similar approach has recently been taken in South Australia.[613] The laws also vary from jurisdiction to jurisdiction in relation to whether a spouse is compellable to give evidence for the accused or for a co-accused.
197. Comment on Accused’s or Spouse’s Silence in Court. In most Australian jurisdictions there are statutory provisions regarding the comments which may be made on the accused’s, or his or her spouse’s, failure to give evidence. A number of different approaches are taken:
• no comment by judge or counsel for the prosecution (subject to the right of the judge to comment where a co-accused has commented);[614]
• no comment by counsel for the prosecution. Comment by judge permitted;[615]
• no legislative provision. The common law governs the situation so that comment by counsel for the prosecution and the judge is permitted.[616]
198. Where judicial comment is permitted, the limits on such comment are unclear. English courts at one time considered that the nature and extent of comment were entirely in the discretion of the trial judge and could not be reviewed on appeal.[617] But the Privy Council held in Waugh v R[618] that there are limits upon the right of the judge to comment as he wishes. A judge should at least direct the jury that silence on the part of the accused does not amount to an admission of guilt nor can it constitute corroboration. But, apart from that, English courts have suggested different forms of comment appropriate for different cases.[619] There is little Australian authority, but what there is tends to follow English cases.[620]
199. Witness Becoming Unfit to Testify. In R v Mitchell[621] the accused was indicted for murder. The substance of the charge was that the accused had procured a miscarriage of the deceased woman and that death resulted from the miscarriage. A deposition had been taken from the deceased woman but before the accused’s solicitor had concluded his cross-examination she became so ill that the presiding magistrate stopped the cross-examination. It was held that the deposition should in those circumstances be inadmissible in evidence. There are conflicting authorities. There appear to be several options for each of which there is some authority—the evidence-in-chief should be disregarded, the evidence should continue to be admissible, the evidence should be admissible but its weight may be diminished.[622]
200. Inability to Be Sworn. In some jurisdictions a witness cannot affirm and his testimony must be excluded if it is not possible to establish the form of religious oath which is binding on the witness’ conscience or if it is not reasonably practicable to administer an oath in an appropriate manner.[624]
201. Non-Compliance with the Law. In some jurisdictions there is no provision preserving the validity of an oath administered to a person who has no religious belief although there is authority that proof of non-belief probably does not result in the exclusion of the witness’ testimony.[625] The effect of the failure to administer an oath or affirmation to a witness is unclean.[626] In some jurisdictions there are provisions preserving the validity of an oath not administered according to the legislation.[627]
202. Unsworn Statement of the Accused. The accused has the right to make an unsworn statement from the dock in all criminal proceedings in some jurisdictions and in trials for indictable offences before juries in other jurisdictions. The right has been abolished in two Australian States.[628] There are also some significant differences in the practice and procedure which is followed in relation to unsworn statements in those jurisdictions where they can still be made—whether the rules of admissibility apply (hearsay etc), whether a lawyer may assist in its preparation, whether he may prompt the accused, whether the accused may read his statement, right of reply, comment by the judge and rebuttal by the prosecution and use of the unsworn statement by co-accused. Recent reforms have been made in South Australia.
203. Unfavourable Witness. At common law, the party calling a witness can, with the leave of the court, cross-question that witness by leading questions as to facts recorded in a previous statement made by that witness inconsistent with the witness’ testimony.[630] In the ACT the common law procedure for direct challenge has been replaced by legislation which gives counsel more flexibility in examining his own witness about evidence which differs from statements previously made by that witness. The ACT legislation[631] enables a party that has called a witness, with the court’s leave:
• to prove that the witness has, at another time, made a statement inconsistent with his evidence; or
• to cross-examine the witness as to whether he has, at any time, made a statement inconsistent with his evidence.
204. Hostile Witness. A party may, at common law, ask the court to declare hostile a witness called by the party. This will enable the party to cross-examine that witness. There is a lack of uniformity on the following matters:
• whether the explanation of prior inconsistent statements may be rebutted. In R v Cox[632] a witness made a statement to police which implicated a person accused of stealing ‘damagingly’. At the trial the witness, on being called, sought to withdraw the statement made by her to the police, alleging irregular conduct by the police officers concerned in the taking of the statement from her. On application by the prosecution she was declared hostile. Evidence was then called from police officers to rebut the allegations made against them. It was held by the Queensland Court of Criminal Appeal that as the rebuttal evidence by the police officers went only to the credit of the witness, which was merely collateral and not relevant to any, issue in the trial, it was inadmissible. However the South Australian Supreme Court held the other way in Price v Bevan:[633]
• whether limits may be imposed upon the cross-examination of a hostile witness;[634]
• whether a voir dire should be used in determining whether a witness is hostile.[635]
205. Cross-Examination on the Prior Statements of the Witness. There is legislation in all States and Territories laying down procedures to be followed where a party seeks to cross-examine a witness as to statements in writing of the witness. The legislation of Tasmania, New South Wales and Western Australia as well as referring to previous evidence and statements of the witness, also refers to ‘a previous statement supposed to have been made by the witness ...’ and evidence supposed to be given by the witness before any justice.[636] There are further differences in the legislation. In some States and the Northern Territory, legislation limits the cross-examination to statements in writing or reduced into writing ‘relative to the subject matter of the cause or prosecution’. In the legislation of Tasmania, New South Wales, Western Australia and the ACT, however, that expression does not appear. As a result it may be argued that such legislation controls cross-examination on documents on collateral matters but the other legislation does not[637] Where the legislation does not apply, then the common law imposes two conditions for cross-examination of a witness upon his document—that the document first be shown to the witness and that it be put in evidence by the cross-examiner as part of his case.[638]
206. Refreshing of Memory. There is considerable uncertainty and some lack of uniformity in relation to the law which allows a witness to refresh his memory from a document made substantially contemporaneously with the events in question. Uncertainty and lack of uniformity exists in relation to:[639]
• the contemporaneity requirement;
• whether the witness must have supervised or verified the production of the document;
• whether a copy of the original can be used to refresh memory;
• whether the witness needs to exhaust his memory before being allowed to refer to the document;
• whether the document may be read to the court by the witness;
• whether failure to produce the document to the court where it has been used for refreshment will be ground for quashing a conviction or not, whether it goes to admissibility or weight or has some other effect;
• whether the party calling the witness should inform his opponent of the refreshment where it occurred out of court; and
• the circumstances in which the refreshing document may be tendered.
207. Rule in Browne v Dunn.[640] According to the rule, any matter upon which it is proposed to contradict the evidence-in-chief of a witness, must normally be put to that witness in cross examination so that he may have the opportunity to explain the matter.[641] A wider formulation that has been advanced is that a party should put to each of his opponent’s witnesses in turn so much of his own case as concerns that particular witness or in which that witness had any share.[642] There is some uncertainty as to the extent to which a party must put its case to the witnesses and the consequences of a failure to do so.[643]
208. Where, during the presentation of evidence, a party adduces evidence the substance of which was not put in cross-examination, it is open to the opposing party to object and, consistently with the above, the judge, in his discretion, could prevent the evidence being given. Research has revealed little authority on the point. Waight and Williams assert that ‘it would seem that the cross-examiner is not precluded from calling evidence, on the matter’.[644] The reported cases generally discuss the inferences to be drawn from a failure to cross-examine or the extent to which the party, who failed to cross-examine can attack the witness in any final address. An exception is R v Schneidas (No 2)[645] where the Court of Criminal Appeal upheld the trial judge’s decision not to allow an unrepresented accused to call evidence which had not been put to a Crown witness. Another is Reid v Kerr[646] where Justice Wells expressed the view that the magistrate had a discretion to allow the prosecution to call rebuttal evidence, if it so applied, or to proceed on the basis that the defence were not entitled to challenge the prosecution evidence by relying on their own.[647] With these statements may be compared that of Justice Newton that the rule does not ‘preclude’ a party ‘as a matter of law from adducing’ evidence in contradiction of the witness.[648]
209. Rules of Law and Practice. The requirement of corroboration may be imposed by:
(a) A rule of law that if the relevant testimony is uncorroborated the court must not act upon it.
(b) A rule of law that the jury be warned against acting on the uncorroborated testimony of a witness. Here, the absence of corroborative evidence will not be crucial but the absence of the warning will be.[650] Only if the court is satisfied that no substantial miscarriage of justice resulted will it not order a new trial.
(c) A rule of practice requiring corroboration. The absence of a warning against acting on uncorroborated evidence is a matter to be given weight in determining whether the jury was properly instructed.[651] In Kelleher v R,[652] for example, which is the leading authority on the point, the accused, a member of a bikie gang that came uninvited to the complainant’s flat, was charged with rape. It was conceded that the complainant had been raped by several members of the gang, the only question being whether the accused was one of them. The evidence of the complainant identifying the accused was supported by the evidence of a friend who was present at the tithe. The majority of the High Court held that no warning was necessary. Two reasons were given—there was substantial corroborative evidence so a warning was unnecessary[653] and the reasons for requiring the warning—for example, the ease with which accusations of rape can be fabricated—did not exist in the case in question.[654]
210. There are differences between the various Australian jurisdictions as to what requirement applies in respect of different categories of witnesses:
• Accomplices. In general, the requirement of corroboration of the evidence of accomplices is in the second category. It is a rule of law that the judge must warn the jury of the dangers of convicting an accused on the basis of the uncorroborated testimony of an accomplice.[655] However, in Queensland. corroboration is required as a matter of law (the first category).[656] In Victoria doubts have been expressed as to whether the warning is required as a matter of law or practice.[657]
There is also a lack of uniformity in the definition of ‘accomplice’. For example, in some jurisdictions but not others, an accessory after the fact is treated as an ‘accomplice’. For example, in Kahn v R[658] the accused was charged with murder. He was alleged to have assaulted and, in company with another person, moved the victim to another place where he was found dead some time later. The person who helped move the victim gave evidence and the issue arose whether, as an accomplice, his evidence required corroboration. The Supreme Court of Western Australia (Court of Criminal Appeal) held that he was an accessory after the fact and not an accomplice for the purpose of the rule. The law is the same in Victoria and Tasmania[659] but not in other jurisdictions. In NSW there is conflicting authority.[660]
• Sexual Cases. The form of the requirement for corroboration varies markedly in respect of sexual cases. The position is governed partly by common law and partly by statute. Each State and the Northern Territory has provisions requiring corroborative evidence for a conviction as a matter of law in certain sexual cases. The warning requirements vary from jurisdiction to jurisdiction.[661]
― Incest. In Tasmania, corroboration of the victim’s evidence is required where the offence charged is incest.[662] This is not so elsewhere.[663]
― Defilement. In Queensland, a person may not be convicted on the uncorroborated evidence of one witness alone (whether or not the victim) of the offence of defilement of a girl under the age of 12 years.[664] In Tasmania, the age limit is 17 years old and the requirement is restricted to the evidence of the complainant (or victim).[665]
In Victoria the general requirement of corroboration warnings has been abolished in all cases.[666] In New South Wales, a similar provision applies, but is limited to the four most serious classes of sexual assaults.[667] The common law requirements apply to minor sexual offences.[668]
• Children’s Unsworn Evidence in Criminal Cases. Except in Queensland and New South Wales,[669] there is legislation requiring corroboration of the unsworn evidence of a child[670] in all criminal cases before an accused can be convicted on that evidence.[671] In New South Wales, corroboration is only required in certain specified offences.[672] In Queensland a warning is required but only in the absence of corroboration.[673]
• Sworn Evidence of Children. The class into which the requirement for corroboration in these cases falls is in some doubt. Some commentators argue that earlier Australian decisions adopted the earlier English approach: a warning was required as a matter of law.[674] But whether that is so is open to question. The only authority cited by these commentators[675] does not seem to support their view.[676] Moreover, the High Court has said that ‘that] case has no application to cases in which the sworn evidence of the child is corroborated.[677] and the Tasmanian Full Supreme Court has held that corroboration was only required as a matter of practice.[678]
211. A Remarkable Level of Differences and Uncertainties. The foregoing discussion reveals a multiplicity of differences in the laws of evidence capable of affecting the outcome of litigation according to the State or Territory which is the venue of a trial. It also reveals significant uncertainty in all areas of the laws of evidence which can only be addressed by comprehensive uniform legislation. The extent of these differences and uncertainties is remarkable. But the material in this chapter is only a selection of examples. A more comprehensive analysis of differences and uncertainties is contained in Appendix C.[679] An examination of that material reveals another class of differences in the law—that which may not have an effect on the outcome of cases but has significant nuisance value for federal judges and practitioners when they move from jurisdiction to jurisdiction. Reference should be made to the discussion in Appendix C—in particular the discussion of:
• psychological competence;[680]
• the forms of oath and affirmation and the manner of administering them;[681]
• the legislation controlling cross-examination;[682]
• the miscellaneous judicial notice, presumptive and dispensing of proof provisions relating to seals, signatures, proclamations, regulations, gazettes etc.[683]
212. The Issues to be Considered. In the chapter that follows the consequences of the diversity and uncertainty in the laws of evidence are considered. The particular issue that must be addressed is whether there should be a uniform comprehensive enactment covering both federal and Territory Courts or whether such courts should continue to operate under these differing and uncertain laws of evidence.
[1] See above para 2.
[2] As to other Australian Territories:
• Australian Antarctic Territory. Heard and McDonald Islands. The law of the ACT applies and the ACT Supreme Court has jurisdiction.
• Coral SAt Islands. The law of Norfolk Island applies and its courts have jurisdiction.
• Territory of Ashmore and Cartier Islands. By virtue of section 6 of the Ashmore and Cartier Islands Acceptance Act 1933, the laws in force immediately before I July 1978 in the Northern Territory apply to this Territory, and by virtue of section 12 the courts of the Northern Territory have jurisdiction in, and in relation to, the Territory.
[3] By virtue of s 2 of the Evidence Ordinance 1960 the provisions of the New South Wales Evidence Act 1898 apply in Norfolk Island. Reference is therefore made to Norfolk Island legislation only where it differs.
[4] There are many differences to be found in the decisions of State, Territory and English courts. Whether this creates a difficult task for federal courts in establishing ‘the common law’ is an issue that will be considered later in this chapter.
[5] See Appendix C and A Sowden, Evidence Research Paper No 1, Comparison of Evidence Legislation Applying in Federal Courts and Courts of the Territories, Australian Law Reform Commission, Sydney, 1981; S Odgers, Evidence Research Paper No 2, Common Law of Evidence: Areas of Disagreement and Uncertainty, Australian Law Reform Commission, Sydney, 1981.
[6] For example, a federal court hearing the proceedings in one State or Territory is likely to come to a different result from the same court sitting in a different State or Territory.
[7] See Appendix C, para 55-60.
[8] W Wills, The Law of Evidence, 3rd edn. Stevens & Sons, London, 1938, 3-5.
[9] Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367, 375 (Dixon J) and Attwood v R [1960] HCA 15; (1960) 102 CLR 353, 360.
[10] JF Stephen, A Digest of the Law of Evidence, 8th edn, Macmillan. London, 1907, art 1; Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367, 376. Also Hollingham v Head [1858] EngR 535; (1858) 4 CBNS 388; 140 ER 1135, 1136-7; Manetti v Melbourne and Metropolitan Tramways Board [1953] VicLawRp 78; [1954] VLR 115, 117-8.
[11] Wilson v R [1970] HCA 17; (1970) 123 CLR 334, 344 (Menzies J); R v Chee [1980] VicRp 32; [1980] VR 303, 306. But note that the Full Court also made approving reference to R v Stephenson [1976] VicRp 34; [1976] VR 376; (id, 208); DPP v Kilbourne (1973) AC 729, 756, 757; Mister Figgins Pty Ltd v Centrepoint Freeholds Pty Ltd [1981] FCA 15; (1981) 36 ALR 23, 29-30 (Fed Ct); R v Gay [1976] VicRp 59; [1976] VR 577, 587 (FC); R v Houston and Stanhope (1982) 8 A Crim R 392, 394 (Vic CCA); Driscoll v R [1977] HCA 43; (1977) 137 CLR 517, 539.
[12] JA Gobbo, D Byrne, JD Heydon, Cross on Evidence, 2nd Aust edn, Butterworths, Sydney, 1979, para 1.32; R v Stephenson [1976] VicRp 34; [1976] VR 376; R v Harz [1967] 1 AC 760. 785; R v Plitzner (1976) 15 SASR 171, 196 (Wells J); Alexander v R [1981] HCA 17; (1981) 34 ALR 289, 317-8 (Mason J).
[13] See Cross on Evidence, para 1.41ff; JH Wigmore, A Treatise of the Anglo-American System of Evidence, 3rd edn, Little Brown & Co, Boston, 1940, para 28, 32; LH Hoffman, ‘Similar Facts After Boardman’ (1975) 91 LQ Rev 193, 200-1, 204-6; Law Reform Commission of NSW, Working Paper, Evidence of Disposition, Govt Printer, 1978, 61.
[14] Lord Simon stated in R v Kilbourne [1973] AC 729, 756:
‘Exceptionally evidence which is irrelevant to a fact which is in issue is admitted to lay the foundation for other, relevant, evidence leg evidence of an unsuccessful search for a missing relevant document, in order to lay the foundation for secondary evidence of the document)’. Apart from such exceptional cases no evidence which is irrelevant to a fact in issue is admissible.
See also DW Elliott (ed) Phipson’s Manual of the Law of Evidence, 10th edn, Sweet & Maxwell, London, 1972, 28; R Eggleston, Evidence, Proof and Probability, Weidenfeld & Nicholson, London, 1978, 611-3; R v Gunn, ex parte Stephenson (1977) 17 SASR 165, 168, 179, 184.
[15] Barnes & Co Ltd v Sharpe [1910] HCA 26; (1910) 11 CLR 462, 472 (Griffith CJ) Halsbury emphasises that ‘a fact may be relevant to an issue, or to the weight to be afforded to evidence, or to the admissibility of other evidence’. Lord Hailsham (ed), Halsbury’s Laws of England, 4th edn, Butterworths, London, 1976, vol 17, para 5, fn 1. See also Cross on Evidence, para 1.45ff.
[16] See Burns v R (1975) 132 CLR 258.
[17] R v Pfitzner, (1976) 15 SASR 171, 196; Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367, 376 (Dixon J): R v Chee [1980] VicRp 32; [1980] VR 303, 308 Cross on Evidence, para 1.32.
[18] R v Thomas [1970] VicRp 87; [1970] VR 674, 679. See also in Manenti v Melbourne and Metropolitan Tramways Board [1953] VicLawRp 78; [1954] VLR 115, 117 (Sholl J).
[19] Appendix C, para 285-97.
[20] See eg R v Hepworth [1955] 2 All ER 918, 920 (Lord Goddard).
[21] Apart from the standards recognised by the common law, other standards might be imposed by statute in respect of particular offences or causes of action, although there appear to be no examples of an Australian legislature taking that course. Also, in some cases, legislation provides that the court must be ‘satisfied’ of the essential elements of a crime or cause of action, but this formula has not been interpreted as imposing a third standard: see eg Peeks Ltd v Adelaide Oil Exploration Co Ltd [1937] SAStRp 24; [1937] SASR 154; Strophair v Ebbage; ex parte Ebbage [1945] QSR 126. As to the standard of proof appropriate to matrimonial cases, see Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 361-2; In the Marriage of Pavel [1976] FamCA 36; (1976) 10 ALR 259, 264-5; Re Fagan Deceased (1980) 23 SASR 454. Appendix C, para 297.
[22] See eg Miller v Minister of Pensions [1947] 2 All ER 372, 373-4 (Denning J); Sodeman v R [1936] HCA 75; (1936) 55 CLR 192, 216-7, 220 (Dixon J) This is not so in the United States, where the common law appears to recognise three standards; JH Wigmore, A Treatise on the Anglo-American System of Evidence, 3rd edn, Little, Brown and Co, Boston, 1940, 2498.
[23] Defences in respect of which the defence has the burden of proof eg, the defence of insanity.
[24] This description is not entirely accurate, for there are certain circumstances in which this standard is applied to cases other than criminal ones: see Appendix C, para 297. The application of the standard in criminal cases where the case is dependent on circumstantial evidence should also be noted: Grant v R (1976) 11 ALC 503; Chamberlain v R [1984] HCA 7; (1984) 58 ALJR 133.
[25] [1938] HCA 34; (1938) 60 CLR 336, 361-2 (Dixon J). What is normally required for the subjective standard is a reasonable belief: Jones v Sutherland Shire Council [1979] 2 NSWLR 206, 227-8, (Mahoney JA). Note: the formulation has caused uncertainty. For example, as the seriousness of the allegations increases does the standard of satisfaction vary or does the standard remain the same but more cogent proof is needed?—see Helton v Allen [1940] HCA 20; (1940) 63 CLR 691, 701, 712 (the majority adopting the Briginshaw statement); Rejfek v McElroy [1965] HCA 46; (1965) 39 ALJR 177; TPC v Nicholas Enterprises Pty Ltd (No 2) [1979] FCA 51; (1979) 40 FLR 83, 105 (Fed Ct); Cuming Smith and Co Ltd v Westralian Farmers Co-op Ltd [1979] VicRp 15; [1979] VR 129; Nixon v Commissioner of Taxation (1979) 36 FLR 172; Andrijich v D’Ascanio [1971] WAR 140.
[26] eg Bradshaw v McEwans Unreported, High Ct, 1951; Jones v Dunkel [1959] HCA 8; (1958) 101 CLR 298 (Windeyer J); Anchor Products v Hedges [1966] HCA 70; (1966) 115 CLR 493, 501 (Owen J); Livingstone v Halvorsen (1978) 22 ALR 213, 228 (Aicken J); Goodwin v Nominal Defendant (1980) 54 ALJR 84.
[27] For alternative objective accounts of probability, see A Ligertwood, ‘The Uncertainty of Proof’ (1976) 10 MUL Rev 367, 377-382; LJ Cohen, The Probable and the Provable, Clarendon Press, London, 1977.
[28] See Davies v Taylor [1974] AC 207, 219 (Lord Simon); G Williams, ‘The Mathematics of Proof’ [1979] Crim L Rev 297.
[29] Compare Murphy J in TNT Management Pty Ltd v Brooks (1979) 53 ALJR 267, 270.
[30] See Holloway v McFeeters [1956] HCA 25; (1956) 94 CLR 470, 477, 480; Jones v Dunkel [1959] HCA 8; (1958-9) 101 CLR 298; Nesterczuk v Mortimore [1965] HCA 60; (1965) 115 CLR 140, 149; Lopes v Taylor (1970) 44 ALJR 412, 421-2; TNT Management Pty Ltd v Brooks (1979) 53 ALJR 267; West v Government Insurance Office (NSW) [1981] HCA 38; (1981) 55 ALJR 544: Maher-Smith v Gaw [1969] VicRp 47; [1969] VR 371.
[31] [1963] HCA 19; (1963) 109 CLR 559.
[32] id, 562 (Dixon CJ), 572-3 (Taylor and Owen JJ). The Court appeared to think the same rule applied to other preliminary questions of fact: ibid.
[33] See R v Hart (1977) 17 SASR 100, 103; R v Bodsworth [1968] 2 NSWR 132, 136; R v Buchanan [1966] VicRp 3; [1966] VR 9, 15; R v Hagan [1966] Qd R 219, 221-3; R v Savage [1970] TASStRp 11; [1970] Tas SR 137; MacPherson v R [1981] HCA 46; (1981) 55 ALJR 594, 597 (Gibbs CJ and Wilson J); Cleland v R (1982) 57 ALJR 156: cf MacPherson v R [1981] HCA 46; (1981) 55 ALJR 594, 606 (Brennan J); R v Warren (1982) 5 A Crim R 321 (NSW CCA).
[34] Cussen J in R v Hope [1909] ArgusLawRp 9; [1909] VLR 149, 164.
[35] Kearney J in The State v Wiola (1978) PNGLR 99.
[36] Cross on Evidence, para 18.128.
[37] Appendix C, para 262-75.
[38] JB Weinstein & MA Berger, Weinstein’s Evidence, Matthew Bender, New York, 1983, para 200[01].
[39] Examples of the latter are the meaning of words, the hours in the day, the driving of a motor car.
[40] Holland v Jones [1917] HCA 26; (1917) 23 CLR 149, 153 (Isaacs J).
[41] [1960] TASStRp 2; [1960] Tas SR 6, 8.
[42] Denver v Cosgrove (1972) 3 SASR 130, 133; Pope v Ewendt (1977) 17 SASR 45, 48-49: Elrick v Terjesen [1947] VicLawRp 63; [1948] VLR 184, 188-9—knowledge gained from a previous case; Kent v Scattini [1961] WAR 74, 76. See West v Sprinkhuizen [1961] Qd R 313 but cf Hansen v Appoo [1974] Qd R 259, 270-1.
[43] Black v Goldman [1919] ArgusLawRp 109; [1919] VLR 689, 692; Hughes v Bradfield [1949] QWN 46.
[44] Simpson v Fraser (1894) 5 QLJ 89, 92 (Griffin CJ); Corberry v Cook [1906] HCA 33; (1906) 3 CLR 995, 996; Ex parte Meer Houssain (1899) 15 WN (NSW) 286.
[45] [1972] VicRp 2; [1972] VR 29. See also cases relating to custom and usage and constitutional facts and other cases—below Appendix C, para 271.
[46] id, 34. cf Whitmore v Harding [1974] SASR 312, where Justice Wells declined to take judicial notice of the scientific name or names of Indian hemp.
[47] Evidence Act 1910 (Tas) s 67; Evidence Act 1906 (WA) s 72; Evidence Act 1929 (SA) s 64.
[48] Appendix C, para 207-29.
[49] South Australia, New South Wales, Northern Territory and Queensland.
[50] See Cross on Evidence, para 11.10; Adams v Batley [1887] UKLawRpKQB 50; (1887) 18 QBD 625. Proceedings for penalties as opposed to compensation are now virtually obsolete, save in some trade practices matters; see the pecuniary penalties under Pt IV of the Trade Practices Act 1974 (Cth).
[51] The type of forfeiture to which the privilege applied was forfeiture of an estate or interest in land but it also included deprivation from a public office. See LH Hoffman, The South African Law of Evidence, Butterworths, Durban, 1970, 180; J McNaughton (ed) Wigmore on Evidence, Little, Brown & Co, Boston, 1961, vol 8, para 2256: Pye v Butterfield (1864) 13 WR 178.
[52] Blunt v Park Lane Hotel Limited [1942] 2 KB 253, 357 (Lord Goddard). See also Bowen LJ in the Court of Appeal in Redfern v Redfern [1890] UKLawRpPro 60; [1891] P 139, 147: ‘It is one of the inveterate principles of English law that a party cannot be compelled to discover that which, if answered, would tend to subject him to any punishment. penalty, forfeiture, or ecclesiastical censure’. See s 234 of the Criminal Procedure Act 1955 (SA) and the Witnesses Act 1806 (Eng).
[53] Smith v Read [1736] EngR 59; (1737) 1 Atk 526; Triplex Safety Glass v Lancegaye Safety Glass [1939] 2 KB 395.
[54] Nelme v Newton [1829] EngR 150; (1819) 2 Y & J 186; Spokes v Grosvenor Hotel [1897] UKLawRpKQB 99; [1897] 2 QB 124; Evans v Staunton [1958] Qd R 96; Commissioner Railways v Small [1938] NSWStRp 29; [1938] 38 SR (NSW) 564 (Jordan CJ); MJ Young & G Evans, A National Crimes Commission? Policy discussion paper, Canberra, 1983, para 7.1-7.6. An objection can only be taken to the production of the documents alleged to have that effect, and not generally to the order lift discovery: Spokes v Grosvenor Hotel [1897] UKLawRpKQB 99; (1897) 2 QB 124.
[55] Blunt v Park Lane Hotel Limited [1942] 2 KB 253.
[56] ibid but cf Redfern v Redfern [1890] UKLawRpPro 60; [1891] P 139, 147; Pyneboard v TPC (1983) 45 ALR 609, 613.
[57] See eg Sahari v Sahari [1976] FamCA 59; (1976) FLC 90-086.
[58] See R v Sloggett (1972) 1 QB 430: R v Gray J [1965] Qd R 373; R v Toner [1966] QWN 44; see also R v C note [1873] EngR 4; (1873) LR 4 PC 599.
[59] Dicta suggesting it may do so—R v All Saints, Worcester (1817) 7 M & S 194, 201; see also Evidence Ordinance 1971 (ACT) s 570).
[60] See R v Minihane (1921) 16 Cr App R 38; Mitton v Curt [1922] SAStRp 34; [1922] SASR 282 (Angas Parsons J). See also King of the Two Sicilies v Willcox (1851) 1 Sim NS (Lord Cranworth VC).
[61] The possibility may remain that a corporation may empower a director, for example, to testify as its agent and that he may be able to claim the privilege.
[62] See, however, discussion by Murphy J in Pyneboard Pty Ltd v Trade Practices Commission (1983) 45 ALR; cf Triplex Safety Glass Co Ltd v Lancegaye Safety Glass (1934) Ltd [1939] 2 All ER 613; Rio Tinto Zinc Corporation v Westinghouse Electric Corporation [1978] AC 547. The United States cases favour the approach of Murphy J.
[63] See East India Co v Campbell (1749) I Ves Sen 246, 247; King of the Two Sicilies v Willcox (1851) 1 Sin NS 301 where the Vice Chancellor, Lord Cranworth stated that he could not find any authority on the point; United States of America v McRae [1867] UKLawRpCh 113; (1868) LR 3 Ch App 79; the similar approach in Murphy v Waterfront Commission of New York Harbour [1964] USSC 136; (1963) 378 US 52 where it was held that one jurisdiction in a federal system may not, in the absence of an immunity provision, compel a witness to give evidence which might incriminate him under the rules of another jurisdiction. See also Hoffmann, 181; Cross on Evidence, para 11.16; Rio Tinto Zinc Corporation v Westinghouse Electric Corporation [1978] 1 All ER 434.
[64] Appendix C, para 227-8.
[65] Appendix C, para 230-61.
[66] In the pre-trial phase, parties are not obliged to disclose their ‘evidence’, the identities of witnesses or to produce documents relating solely to their own case.
[67] For discussion of the development of these privileges from the Chancery and common law protection of evidence, names of witnesses and documents relating only to the case of the party in possession of them, see NJ Williams, ‘Civil Litigation Trial Preparation in Canada’ (1980) 58 Can Bar Rev 1. The issues of the availability of the privilege in answer to a search warrant and its application in quasi-judicial proceedings are outside the scope of the reference.
[68] [1976] HCA 63; (1976) 135 CLR 674.
[69] Law Reform Committee of England, 16th Report, Privilege in Civil Proceedings, Cmnd 3472, HMSO, London, 1967; Cross on Evidence, para 11.25; Williams, 1.
[70] Williams, 50-3; ‘the material which is to go into the lawyer’s (ie the client’s) brief or file for litigation’: Lord Simon of Glaisdale in Waugh v British Railway Board [1979] UKHL 2; [1980] AC 521, 536-7 and 531 (Lord Wilberforce). Thus, copies made by a solicitor of entries in registers and public records relevant to the issues in a pedigree suit were held privileged: Lyell v Kennedy (No 3) [1884] UKLawRpCh 102; (1884) 27 Ch D 1; Wright v Vernon [1853] EngR 129; (1853) 1 Drew 344; Lord Hailsham (ed) Halsbury Laws of England, vol 13, para 7lff.
[71] Mayor & Corporation of Bristol v Cox [1884] UKLawRpCh 119; (1884) 26 Ch D 678.
[72] Hughes v Biddulph [1827] EngR 840; (1827) 4 Russ 190; 38 ER 777.
[73] See Law Reform Committee of England, 9: Trade Practices Commission v Sterling [1979] FCA 33; (1978) 36 FLR 244, 245 (Lockhart J). See generally NJ Williams (ed), Supreme Court Practice (Vic), 2nd edn, Butterworths, Melbourne, 1973, para 31.14.9; Greenough v Gaskell [1833] EngR 333; (1833) 1 My & K 98; 39 ER 618, 621 (Brougham LC); Lawrence v Campbell [1859] EngR 385; (1859) 4 Drew 485, 490; [1859] EngR 385; 62 ER 186, 188; Cross on Evidence, para 11.25; Anderson v Bank of British Columbia [1876] UKLawRpCh 145; [1876] 2 Ch D 644; Wheeler v Le Merchant [1881] UKLawRpCh 106; (1881) 17 Ch D 675, 682, 684; Jones v Great Central Railway Co [1909] UKLawRpAC 23; [1910] AC 4, 6 and the communication of a mother for her son: Hicks v Trustees Executors and Agency Co Ltd [1900] VicLawRp 41; (1900) 25 VLR 668.
[74] cf Trade Practices Commission v Sterling [1979] FCA 33; (1978) 36 FLR 244, 245; Law Reform Committee of England, 9; Williams, para 31.14.14; Halsbury ‘s Laws of England, 3rd edn, 1955, 44. There is authority that the litigation may be out of the jurisdiction: Re Duncan [1968] P 306.
[75] DL Mills, Legal Professional Privilege, Research Paper No 3, Law Foundation of NSW, 1975, para 2.
[76] cf Trade Practices v Sterling [1979] FCA 33; (1978) 36 FLR 244, 246.
[77] See D Pearce, ‘Legal Professional Privilege—Sole or Dominant Purpose’ [1979] ACL, DT 281. See also cases referred to in Cross on Evidence, para 11.27; Grant v Downs [1976] HCA 63; (1976) 135 CLR 674, 683-4; Seabrook v British Transport Commission [1959] 1 WLR 509 and Waugh v British Railways Board [1979] UKHL 2; [1980] AC 521, 532, 536-5, 539-41. See also Alfred Crompton Amusement Machines Ltd v Customs & Excise Commissioners (No 2) [1974] AC 405.
[78] [1976] HCA 63; (1976) 135 CLR 674, 682, 699. See also O’Reilly v The Commissioners of The State Bank of Victoria [1983] HCA 47; (1983) 57 ALJR 130.
[79] See Trade Practices Commission v Sterling [1979] FCA 33; (1978) 36 FLR 244; Kelly v The Commonwealth (1979) 39 FLR 372 and see AF Smith, ‘Erosion of the Doctrine of Privilege’ (1982) 56 LIJ 460, 464; Electrona Carbide Industries Pty Ltd. v Tasmanian Government Insurance Office, Unreported. No 12, Tas SC. (26 February 1982, Cosgrove J).
[80] See Appendix C, para 234, 236.
[81] It does—Montgomery v McPherson (No 1) (1895) 16 NSW R, Eq 81: it does not—Allen v City Bank of Sydney [1902] NSWStRp 80; [1902] 2 SR NSW Eq 143. The Great Atlantic Insurance Co v Home Insurance Co (1981) 1 W LR 529 would appear to support the latter view.
[82] See Watson v Cammell Laird & Co (Shipbuilders and Engineers) Ltd [1959] 2 All ER 757; The Palermo [1883] UKLawRpPro 58; (1883) 9 PD 6; Chadwick v Bowman (1886) 16 QB D 561; Kennedy v Lyell [1883] UKLawRpCh 103; (1883) 23 Ch D 387. The decision in Kennedy was justified on the basis that the notes and materials, being selective, would give an insight into the way the party was approaching the case.
[83] Shaw v David Syme [1912] ArgusLawRp 93; [1912] VLR 336. Lord Denning expressed the view that the English authorities ‘are suspect’: Buttes Gas & Oil Co v Hammer (No 3) [1980] 3 All ER 475.
[84] See Calcraft v Guest [1898] UKLawRpKQB 46; [1898] 1 QB 759; Ashburton v Pape [1913] UKLawRpCh 80; [1913] 2 Ch 469; Butler v Board of Trade [1971] Ch 680; ITC Film Distributors v Video Exchange Ltd [1982] 2 All ER 241.
[85] Bell v David Jones Ltd [1948] NSWStRp 77; (1948) 49 SR (NSW) 223, 227-8 (Jordan CJ).
[86] id, 227, 228. His Honour cited as authority for these propositions Lloyd v Mastyn [1842] EngR 964; (1842) 10 M & W 478; Calcraft v Guest [1898] UKLawRpKQB 46; (1898) 1 QB 759 and Ashburton v Pope [1913] 2 Ch 499.
[88] Varawa v Howard Smith and Co Ltd [1910] HCA 11; (1910) 10 CLR 382; LT & KT Conlon v Lensworth Interstate (Vic) Pty Ltd [1970] VicRp 36; [1970] VR 293, 295.
[89] Phipson on Evidence, para 592. The leading case is R v Co. and Railton (1884) 14 QBD 153. See also Varawa v Howard Smith & Co Ltd [1910] HCA 11; (1910) 10 CLR 382; Sut v Nominal Defendant [1968] 2 NSWR 18.
[90] Plumb v Monk (1974) 4 ALR 405 (NT SC): Butler v Board of Trade [1970] 3 All ER 593, 598; O’Rourke v Darbyshire [1920] AC 581, 604; LT & KT Conlon v Lensworth Interstate (Vic) Pty Ltd [1970] VicRp 36; (1970) VR 293, 295.
[91] [1980] HCA 26; (1980) 30 ALR 489.
[92] id, 498-500.
[93] id, 506-7.
[94] [1979] HCA 11; (1979) 53 ALJR 355.
[95] id, 356. See Jones v Great Central Railway Company [1909] UKLawRpAC 23; [1910] AC 4; In re Holloway [1887] UKLawRpPro 20; (1887) 12 PD 167; Wheeler v Le Marchant [1881] UKLawRpCh 106; (1881) 17 Ch D 675, 681; Kyshe v Holt, Childs and Brotherton [1888] WN 128; Anderson v Bank of British Columbia (1876) 2 Ch 644, 658-9; Halsbury’s Laws of England, 4th edn, vol 13, para 68.
[96] Jones v Great Central Railway Company [1909] UKLawRpAC 23; [1910] AC 4.
[97] Kyshe v Holt, Childs and Brotherton [1888] WN 128 (Smith J) relying on passages in the judgment of Mellish LJ in Anderson v Bank of British Columbia (1876) 2 Ch 644. Cave J disagreed but expressed no final view.
[98] [1884] UKLawRpCh 119; (1884) 26 Ch D 678, 682.
[99] Phipson on Evidence, para 608.
[100] However, where leave is granted, it can be revoked.
[101] Evidence Act 1977 (Qld) s 14.
[102] Evidence Ordinance 1971 (ACT) s 95(3).
[103] See Appendix C, para 195-6.
[104] Rumping v Director of Public Prosecutions [1964] AC 814, 833, 834. See, however, Greenleaf and Best, quoted in Shenton v Tyler [1939] Ch 620, 633, 634.
[105] Evidence Act 1898 (NSW) s 11.
[106] Evidence Ordinance 1971 (ACT) s 54.
[107] See Appendix C, para 195.
[108] It seems that the privilege does not attach to the communication generally. If someone other than the spouse has knowledge of the communication, he can give evidence of it: Larnach v Alleyne (1865) 2 WW & A B (E) 39; R v Dowling [1883] VicLawRp 51; (1883) 9 VLR, L 79. Note also the differing authority on the meaning of ‘communication to’ a spouse—see Appendix C, para 195.
[109] Evidence Act 1910 s 94(1).
[110] Evidence Act 1958 s 27.
[111] Evidence Act 1977 s 11.
[112] Evidence Act 1929 s 18, s 21—where called as a witness by the defence or where a non-compellable witness for the prosecution.
[114] See Appendix C, para 197-201.
[115] It applies to a limited extent in those States and Territories where legislation applies.
[116] Duchess of Kingston’s Trial [1675] EngR 170; (1776) 11 St Tr 198, 243. The lack of privilege was acknowledged with reluctance in Wilston v Rastall (1792) 4 Term Rep 53, 759-60 (‘There are cases, to which it is much to be lamented that the law of privilege is not extended; those in which medical persons are obliged to disclose the information which they acquire by attending in their professional characters’); Falmouth v Moss (1822) 11 Price 455, 470-1. The lack of privilege is also acknowledged in Broad v Pitt [1829] EngR 366; (1828) 3 Car & P 578, 579; Greenough v Gaskell [1833] EngR 333; (1833) 1 My & K 98, 103: Greenlaw v King [1838] EngR 1046; (1838) 1 Beav 137, 145; Russell v Jackson [1851] EngR 955; (1851) 9 Hare 387, 391; Wheeler v Le Marchant [1881] UKLawRpCh 106; (1881) 17 Ch D 675, 681; R v Gibbons [1823] EngR 660; (1823) 1 Car & P 97; Garner v Garner (1920) 36 TLR 196, 197; See also Nuttall v Nuttall and Tuyman (1964) 108 Sol J 605 (re a psychiatrist); and Parry-Jones v The Law Society [1969] 1 Ch 1, 9; Atkinson v Atkinson (1825) 2 Add 468, 470.
[117] R v St Lawrence’s Hospital Statutory Visitors, ex parte Pritchard [1953] 1 WLR 1158, 1165-6.
[118] [1974] QB 767, 773.
[119] (1973) 4 ACTR 9, 10-11.
[120] Evidence Act 1958 s 28(2). The section was first enacted in Victoria in almost identical form in the Law of Evidence Consolidation Act 1857, 21 Vict 8 as part of s XVIII. The precedent was a New York statute of 1828. See National Mutual Life Association of Australasia Ltd v Godrich [1909] HCA 93; (1910) 10 CLR 1, 13; X v Y (No 1) [1954] VicLawRp 49; [1954] VLR 708, 709. The text of the American precedent is quoted in Warnecke v Equitable Life Assurance Society of the United States [1906] ArgusLawRp 82; [1906] VLR 482, 486.
[121] Hare v Riley & AMP Society [1974] VicRp 68; [1974] VR 577, 581. It was also decided that the mere fact that the doctor is himself a defendant does not prevent the provision from operating.
[122] See Appendix C, para 201.
[123] Warnecke v The Equitable Life Assurance Society of the United States [1906] ArgusLawRp 82; [1906] VLR 482 (A’Beckett ACJ).
[124] id, 486. This view was confirmed in National Mutual Life Association of Australia Ltd v Godrich [1909] HCA 93; (1910) 10 CLR 1, 3-4, 9. In deciding that ‘information acquired’ could not be limited to communications the High Court referred to other sections in the Victorian Evidence Act 1958, where the expressions used were ‘communication’ in the spouse’s privilege (s 27) and ‘confession’ in the penitent’s privilege (s 28(1)), to find a legislative intention to distinguish the medical privilege and protect more information (id, 8-10 (Griffith CJ); 16-20, 25 (Barton J); 27, 31 (O’Connor J); 36-7 (Isaacs J); 40-11 (Higgins J). See also id, 19 (Barton J). See also Warnecke v The Equitable Life Assurance Society of the United States [1906] ArgusLawRp 82; [1906] VLR 482, 486; Hare v Riley & AMP Society [1974] VicRp 68; [1974] VR 577, 582 (Norris J). It is interesting to note that Isaacs J (id, 34) related the legislature’s choice of words ‘information acquired’ to the use of the same words by Buller J in Wilson v Rastall [1792] EngR 3089; (1792) 4 TR 753; 100 ER 1283, 1287 when he lamented that no medical privilege was recognised at common law.
[125] Warnecke v The Equitable Life Assurance Society of the United States [1906] ArgusLawRp 82; [1906] VLR 482 (Hodges J); National Mutual Life Association of Australasia Ltd v Godrich [1909] HCA 93; (1910) 10 CLR 1, 10, 11 (O’Connor J); O’Hare v Riley and AMP Society [1974] VicRp 68; [1974] VR 577; X v Y (No 1) [1954] VicLawRp 49; [1954] VLR 708; See also Appendix C, para 200-1.
[126] See Appendix C, para 201.
[127] See National Mutual Life Association of Australasia Ltd v Godrich [1909] HCA 93; (1910) 10 CLR 1, 10-11; O’Hare v Riley and AMP Society [1974] VicRp 68; [1974] VR 577.
[128] See Pacyna v Grima [1963] VicRp 60; [1963] VR 421 and Andasteel Constructions Pty Ltd v Taylor [1964] VicRp 17; [1964] VR 112.
[129] See Appendix C, para 202-4.
[130] See Appendix C, para 202.
[131] Evidence Act 1958 (Vic) s 28(1); Evidence Act 1910 (Tas) s 96(1); Evidence Act (NT) 1939 s 120) and 12(3).
[132] The Victorian provision has the same form of words as when it was first enacted in the Law of Evidence Consolidation Act 1857 as part of s 18, which has as its origin a New York Statute of 1828.
[133] See Appendix C, para 242-9.
[134] See Appendix C, para 242-6.
[135] [1978] HCA 43; (1978) 53 ALJR 11.
[136] s 60(1). For the purposes of the Act a ‘communication’ includes a reference to a statement or record that is not communicated to any person.
[137] See Senate Standing Committee on Constitutional and Legal Affairs, Report on the Freedom of Information Bill 1978. AGPS, Canberra, 1979, 59-60.
[138] See Robinson v State of South Australia (No 2) [1931] AC 704; Ex parte Brown; Re Tunstall [1966] NSWR 770; cf Ex parte Attorney-General; Re Cook [1967] 2 NSWR 689.
[139] See Appendix C, para 205-6.
[140] The most recent and extensive treatment is that in R v Lewes: Ex parte Home Secretary [1973] AC 388.
[141] See Appendix C, para 250-56.
[142] See Cross on Evidence, para 11.38; Phipson on Evidence, para 679ff: Thomas v Austen (1823) 1 LJ (OS) KB 99; Rodgers v Rodgers (1964) 114 CLR 608.
[143] McTaggart v McTaggart [1949] P 94; Bell v Bell (1970] SASR 310. The discussions may be initiated by one of the parties or the mediator. The persons considered to be mediators may include doctors, clergymen, solicitors, marriage guidance counsellors and probation officers: Mole v Mole [1951] P 21; Henley v Henley [1955] P 202; Family Law Act 1975 (Cth) s 18.
[144] Cross on Evidence, para 11.43, while commenting on the paucity of authority. On the position of the agent see La Roche v Armstrong [1922] 1 KB 485.
[145] SA Schiff, Evidence in the Litigation Process, Carswell, Toronto, 1978, vol 2, 1045-147; Wigmore on Evidence, para 1061, 1067.
[146] D Vaver, ‘Without Prejudice Negotiations—Their Admissibility and Effect’ (1974) 9 UBCL Rev 85; Fisher & Co v Apollinaris Co (1875) 32 LT 628 (Ch CA) (which involved a trade mark infringement in respect of which both civil and criminal proceedings could be brought); and In re Ramsay [1870] UKLawRpPC 24; (1870) LR 3 PC 427 where negotiations took place between the judge and the Attorney-General whom the judge alleged to be in contempt of court. The judge, having obtained certain admissions from the Attorney-General in the negotations, then held him guilty of contempt. On appeal it was held that the communications should have been treated as without prejudice.
[147] Bishop v Civil Service Supply Association (1922) 15 BWCC 128, 130 (CA).
[148] See Appendix C, para 241.
[149] See JB Matthews & GB Spear, Taylor on Evidence, 11th edn, Sweet & Maxwell, London, 1920, para 1379; Hennessy v Broken Hill Pty Co Ltd [1926] HCA 32; (1926) 38 CLR 342; Zanatta v McCleary [1976] 1 NSWLR 230; Halsbury’s Laws of England, vol 17, para 232
[150] See Ward v Shell Mex and BP Ltd [1952] 1 KB 280; Zanatta v McCleary [1976] 1 NSWLR 230, 237; McKinley v McKinley [1960] 1 All ER 476, 479; R v Harvey (1858) 8 Cox CC 99; Phipson on Evidence, para 1492; Law Reform Commission of NSW, Discussion Paper, Competence and Compellability, 1980, 65, Halsbury’s Laws of England, para 236.
[151] [1976] 1 NSWLR 230, 234, 239.
[152] Samuels J concluded saying ‘it is not open to the appellant to call the learned judge ...’ Note also his criticism of the distinction between superior and inferior judges—id, 237.
[153] See Throgmorton’s Case (1554) 1 State Tr 869 when eight members of the jury were fined and imprisoned for having acquitted Nicholas Throgmorton of high treason.
[154] (1670) 6 State Tr 999. The immunity of jurors in actions brought by persons injured by a wrongful verdict was established in Floyd v Barker [1572] EngR 142; (1607) 12 Co Rep 23.
[155] See Appendix C, para 241.
[156] Halsbury’s Laws of England, para 236; Boston v WS Bagshaw and Sons [1967] 2 All ER 87. See also Law Reform Commission of NSW, 74 n 165; Shoukatallie v R [1961] 3 WLR 1021, 1029 (PC).
[157] Law Reform Commission of NSW, 73. See R v Thompson [1962] 1 All ER 65 re improprieties.
[158] See Appendix C, para 257-8.
[159] Roberts v Simpson (1817) 2 Stark NP 203; Pickering v Noyes (1823) 1B and C 262; Doe v Date [1842] EngR 963; (1842) 3 QB 690; Adams v Lloyd (1858) 3H & N 351, 363. In England the rule can only apply in criminal proceedings, being otherwise abrogated by the Civil Evidence Act 1968 s 16(1)(b). If a property is subject to a mortgage and the deeds relating to the property. are held by the mortgagee or trustee, that mortgagee or trustee cannot be compelled to produce the deeds if they would have been protected in the hands of the mortgagor or beneficiary: Davies v Waters (1842) 9M & W 608; Phelps v Prew (1854) 3E & B 430.
[160] Evidence Act 1977 (Qld) s 14(1)(6).
[161] Evidence Ordinance 1971 (ACT) s 95(2).
[162] See Appendix C, para 188-94.
[163] [1981] HCA 17; (1981) 34 ALR 289.
[164] (1978) 52 ALIR 561.
[165] id, 315-7.
[166] id, 294.
[167] id, 300, 306.
[168] id, 319-21. cf R v Burchielli [1981] VicRp 61; [1981] VR 611, 621 (McGarvie J); R v Aziz [1982] NSWLR 322 considered the issue but in the context of photo-identification in the detection phase.
[169] [1976] 3 All ER 549. It would seem that it is not confined to the ‘fleeting glimpse’ situation—R v Hayes [1977] 2 All ER 288. See E Grayson, ‘Identifying Turnbull’ 1977 Crim L Rev, 509; and see Criminal Law Reform Committee of New Zealand, Report on Identification, NZ Govt Printer. Wellington, 1978, 31.
[170] id, 551-2.
[171] Kelleher v R [1974] HCA 48; (1974) 131 CLR 534, 551.
[172] R v Burchielli [1981] VicRp 61; (1981) VR 611; McCusker v R [1977] Tas SR 140; Sutton v R [1978] WAR 94; query, R v Beble (1979) Qd R 278. As each case concerned identification by strangers it was not necessary to reconcile the authorities. R v Turnbull was not referred to in Duff v R (1979) 28 ALR 663 (Fed Ct).
[173] See for example analysis in R v Burchielli [1981] VR 60; R v Clune [1982] VicRp 1; [1982] VR 1; R v Dickson [1983] VicRp 19; [1983] VR 227.
[174] 174. See P Byrne, Identification Evidence (LLM Thesis—University of Sydney, 1982) 4.82; R v Maarraui (1970) 92 WN (NSW) 757 remaining the leading case. See also R v Aziz [1982] 2 NSWLR 322, 328.
[175] R v Dickman (1910) 5 Cr App R 135; R v Bunch (1910) 5 Cr App R 270.
[176] R v Tunbull [1976] 3 All ER 549, 550.
[177] McCusker v R [1977] Tas SR 140; Sutton v R [1978] WAR 94.
[178] R v Aziz [1982] 2 NSWLR 322; R v Williams [1983] VicRp 116; [1983] 2 VR 579, 584; R v Smith (1983) 32 SASR 219.
[179] R v Young [1964] 1 WLR 717; R v Hipson [1969] Crim L Rev 85; R v Falconer-Atlee (1973) 58 Cr App R 349; R v Mansfield [1977] 1 WLR 1102; contra R v Barker (1975) 65 Cr App R 287. Also S Mitchell (ed) Archbold: Criminal Pleading, Evidence, and Practice. 40th edn, Sweet & Maxwell, London, 1979, para 575, 575a, 577; HH Glass, ‘The Insufficiency of Evidence to Raise a Case to Answer’ (1981) 55 ALJ 842, 844ff.
[180] Glass, 842ff; Wilson v Kuhl [1979] VicRp 34; [1979] VR 315; R v Prasad (1979) 23 SASR 101 (Mohr J dissenting). Note: the trial judge may invite the jury to stop the trial at any time after the conclusion of the prosecution case: Glass, 843 and cases cited.
[181] See Appendix C, para 77-94.
[182] [1837] EngR 853; (1837) Ad & E 313; 112 ER 488.
[183] [1971] UKPC 23; [1972] AC 378.
[184] See Holloway v McFeeters [1956] HCA 25; (1956) 94 CLR 470, 487 (Kitto J). Williams, Webb and Taylor JJ however, stated that the evidence could be taken into account in weighing the probabilities.
[185] [1971] UKPC 23; [1972] AC 378.
[186] Vocisano v Vocisano (1974) 48 ALJR 156.
[187] Evidence Act 1910 (Tas) s 81F.
[188] [1981] HCA 17; (1981) 34 ALR 289.
[189] id, 313.
[190] id, 295-6 (Gibbs CJ) 319 (Murphy J). The issue was regarded as unresolved in R v Goodall [1982] VicRp 3; [1982] VR 33, 40-1 (McInerney J).
[191] Gibbs CJ also mentioned the situations where the evidence is admissible under an exception to the hearsay rule, where the accused has adopted as true the statements made in identifying him, or as part of the res gestae (id, 295).
[192] id, 295.
[193] id, 297-8 (Gibbs CJ); 319 (Murphy J).
[194] id, 295-6 (Gibbs CJ); 318 (Murphy J).
[195] Evidence Act 1910 (Tas) s 81L; Evidence Act 1977 (Qld) s 94.
[196] Crimes Act 1900 (NSW) s 408; Evidence Act 1910 (Tas) s 81K; Evidence Ordinance 1971 (ACT) s 65; see also Evidence Ordinance 1955 (Singapore) s 32 as applied to the Christmas and Cocos (Keeling) Islands.
[197] As to statements about relevant facts, it is unclear when and on what basis the court may still exclude such evidence—see Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642; R v Schafferius 1977 Qd R 213. In the Family Court the practice varies—some judges will blue pencil the offending passages—Bar Mordecai v Bar Mordecai (1982) FLC 91—260.
[198] English Exporters (London) Ltd v Eldomwall Ltd [1973] 1 Ch 415; See also R v Abadom [1983] 1 WLR 126; Borowski v Quayle [1966] VicRp 54; [1966] VR 382; H v Schering Chemicals Ltd [1983] 1 All ER 849; Reid v Kerr [1974] 9 SASR 367; Rowley v London and North Western Railway Co (1873) LR 18 Exch 221; Dickins v Randerson [1901] 1 KB 437; R v Perryman (1907) 147 CCC Sess Pap 109 (Lawrence J); see also comments concerning histories, maps, dictionaries, grammars, and almanacs: Wigmore on Evidence, para 1702. See Appendix C para 91.
[199] See Appendix C, para 92-4.
[200] In addition to this general legislation there is another provision in South Australia which provides an exception for any apparently genuine document. Its admission is subject to judicial discretion: Evidence Act 1929 (SA) s 456.
[201] See Appendix C, para 112-50.
[202] PB Carter, Cases and Statutes on Evidence, 2nd edn, Sweet & Maxwell, London, 1981, 352. See also Cross on Evidence. para 18.84.
[203] Bessela v Stern [1877] UKLawRpCP 37; (1877) 2 CPD 265; Young v Tibbits [1912] HCA 23; (1912) 14 CLR 114; Thatcher v Charles [1961] HCA 5; (1961) 104 CLR 57; R v Strausz (1977) 17 SASR 197.
[204] Eg to remain silent—although note the occasional statutory duty to answer questions: Paterson v Martin [1966] HCA 68; (1966) 116 CLR 506.
[205] [1970] HCA 21; (1970) 126 CLR 321, 331.See also Woon v R [1964] HCA 23; (1964) 109 CLR 529, 541 (Windeyer J); R v Twist [1954] VicLawRp 6; [1954] VLR 121 (FC): R v Router (1977) 14 ALR 367, 375 (NSW CCA).
[206] [1971] 1 All ER 322, 324.
[207] [1976] 1 WLR 585, 590.
[208] R v McKelvey [1914] St R Qd 42, 53-4 (FC); Forrest v Normandale (1973) 5 SASR 524, 542 (FC); R v Router (1977) 14 ALR 365, 376 (NSW CCA).
[209] (1973) 5 SASR 524, 531.
[211] See generally, R v Christie [1914] UKLawRpAC 20; [1914] AC 545, 565-6; Woon v R [1964] HCA 23; (1964) 109 CLR 529. Authorities suggesting that it is permissible: Paterson v Martin [1966] HCA 68; (1966) 116 CLR 506, 511 (Barwick CJ) (no caution required); R v Barron [1975] VicRp 51; [1975] VR 496, 504 (FC) (judicial discretion; caution given). See also R v Mann (1972) 56 Cr App R 750. Not permissible: R v Rudd [1923] SAStRp 11; [1923] SASR 229, 233 (caution given); R v Wyatt [1972] VicRp 105; [1972] VR 902 (caution given); R v Wright [1980] VicRp 56; [1980] VR 593, 616 (Kaye J) (caution given).
[212] R v Thomas [1970] VicRp 87; [1970] VR 674 (FC) suggests that inferences can be drawn, although it was decided prior to the cases noted above. See also R v Salahattin [1983] VicRp 49; [1983] VR 521, discussed below.
[213] Hinton v Trotter [1931] SAStRp 19; [1931] SASR 123, 126; R v Daren and Tange [1971] 2 NSWLR 423, 426-7, 435; R v Ryan (1966) 50 Cr App R 144, 148.
[214] Forrest v Normandale (1973) 5 SASR 524, 532; R v Router (1977) 14 ALR 365, 376 (NSW CCA); R v Sadaraka [1981] 2 NSWLR 459 (CCA).
[215] [1983] VicRp 49; [1983] VR 521.
[216] Re Devala Provident Gold Mining Co Ltd [1883] UKLawRpCh 19; (1883) 22 Ch D 593; South Australian Co v City of Port Adelaide [1914] SALawRp 2; [1914] SALR 16; Hamlyn v Hann Heagney [1967] SASR 387, 398; Guarnaccia v Rocla Concrete Pipes Pty Ltd [1976] VicRp 25; [1976] VR 302, 305.
[217] [1954] VicLawRp 14; [1954] VLR 410.
[218] id, 412.
[219] The Solway [1885] UKLawRpPro 34; (1885) 10 PD 137; Finance and Guarantee Co Ltd v Commissioner of Taxation (1970) 44 ALJR 368, 370.
[220] R v Blake & Tye (1844) 6 QBD 126; R v Harris (No 2) (1975) 12 SASR 270; R v Corak (1982) 30 SASR 404, 405 (King CJ).
[221] R v Associated Northern Collieries (1910) 11 CLR 738; R v Gunn [1930] NSWStRp 50; (1930) 30 SR (NSW) 336: R v Harris (No 2) (1975) 12 SASR 270, 271; R v Gouroff (1979) 1 A Crim R 367. 371 (Vic CCA); R v Nessel (1980) 5 A Crim R 374 (Qld CCA); Trade Practices Commission v Allied Mills Industries Pty Ltd [1931] ArgusLawRp 29; (1981) 37 ALR 225, 236-8 (Fed Ct).
[224] id, 306.
[225] R v Guidice [1964] WAR 128; R v Gibbons [1971] VicRp 8; [1971] VR 79; R v Pfitzner (1976) 15 SASR 171. See also the English case of R v Chatwood [1980] Crim L Rev 46 (CCA).
[226] Bird v Adams [1972] Crim L Rev 174; R v Chapwood [1980] 1 All ER 467, 470, 472 (CA); Anglim and Cooke v Thomas [1974] VicRp 45; [1974] VR 363; Dimitriou v Samuels (1975) 10 SASR 331; Relf v Webster (1978) 24 ACTR 3; Police v Coward [1976] 2 NZLR 86; R v Brady Unreported, No 109/1980 (NSW CCA); Parks v Bullock [1982] VicRp 22; [1982] VR 258, 261.
[227] [1976] 1 NSWLR 669, 684.
[228] Phipson on Evidence, para 684.
[229] Grey v Australian Motorists and General Insurance Co Ltd [1976] 1 NSWLR 669, 676.
[230] See Appendix C, para 129-45.
[232] id, 817-8 (Lord Reid). See also Wendo v R [1963] HCA 19; (1963) 109 CLR 559, 565; R v Lindsay [1963] Qd R 386.
[233] Cross on Evidence, para 18.113; Criminal Law Revision Committee of England, para 53; R v Attard [1970] NSWR 750.
[234] DPP v Ping Lin [1976] AC 574, 600 (Lord Hailsham of St Marylebone) (HL).
[235] [1950] HCA 25; (1950) 82 CLR 133, 149.
[236] id, 146.
[237] id, 144, derived from the judgment of Dixon J, as he then was, in McDermott v R (1948) 76 CLR 501, 511.
[238] Contrast R v Buchanan [1966] VicRp 3; [1966] VR 9, 15 with R v Rankowski (1971) 18 FLR 179.
[239] See Collins v R [1980] FCA 72; (1980) 31 ALR 257, 307-9.
[240] McDermott v R (1948) 76 CLR 501, 511-512; R v Lee [1950] HCA 25; (1950) 82 CLR 133, 144.
[241] [1950] HCA 25; (1950) 82 CLR 133.
[242] See also Basto v R [1954] HCA 78; (1954) 91 CLR 628, 638-9; Harris v R [1967] SASR 316; R v Williams (1976) 14 SASR 1, 7-8; R v Oates [1979] Tas SR 203, 205.
[243] Cornelius v R (1936) 55 CLR 235, 251 (HC); Collins v R [1980] FCA 72; (1980) 31 ALR 257, 307 (Brennan J).
[244] See the House of Lords test in DPP v Ping Lin [1976] AC 574.
[245] Ibrahim v R [1914] AC 599, 609, 610; McDermott v R (1948) 76 CLR 501, 511.
[246] R v Thompson [1783] EngR 186; (1783) 1 Leach 291 (‘I will be favourable to you’); R v Colley (1868) 10 Cox CC 536 (‘you may get yourself into trouble’); R v Richards (1967) Cr App R 266, 268-9 (‘it would be better ...’). See also R v Northam (1967) 52 Cr App R 97; Harz [1967] 1 AC 760, 820.
[247] R v Court [1837] EngR 230; (1836) 7 C & P 486; ‘be sure to tell the truth’ R v Baldry (1852) 2 Den 430 ‘whatever you say will be given in evidence against you’; 169 ER 568; R v Joyce [1957] 3 All ER 623 ‘I need to take a statement’. See also R v Bodsworth [1968] 2 NSWR 132, 138; Collins v R [1980] FCA 72; (1980) 31 ALR 257, 271.
[248] DPP v Ping Lin [1976] AC 574.
[249] See R v Northam (1967) 52 Cr App R 97, 102-4 (CCA).
[250] McDermott v R (1948) 76 CLR 501, 511. See also Pascoe v Little (1979) 24 ACTR 21, 23; R v Oates [1979] Tas SR 203.
[251] Cornelius v R (1936) 55 CLR 235, 245 (‘given in consequence of ...’); R v Lee [1950] HCA 25; (1950) 82 CLR 133, 146 (‘a statement induced by ...’); Beamish v R [1962] WAR 85, 99 (CCA) (‘calculated to interfere with the appellant’s freedom of choice’); R v Bentley [1963] QWN 10, 25 (‘calculated under the circumstances to induce ...’); R v Plotzki [1972] Qd R 379, 385 (CCA); R v Bodsworth [1968] 2 NSWR 132, 138 (CCA); Collins v R [1980] FCA 72; (1980) 31 ALR 257, 307, 310 (Brennan J) (Fed Ct); R v Richards (1967) 51 Cr App R 266, 269 (‘operate ... upon the mind ...’); DPP v Ping Lin [1976] AC 574, 595, 600, 607 (HL); R v Milnes (1983) 33 SASR 211, 230 (‘continuing operation’).
[252] See generally P Mirfield, ‘Confessions—the ‘Person in Authority’ Requirement’ [1981] Crim L Rev 92.
[253] [1969] 1 AC 20, 33.
[254] R v Clarke [1970] 1 NSWR 289 (CCA); R v Plotzki [1972] Qd R 379 (CCA): R v Oates [1979] Tas SR 203; Collins v R [1924] ArgusLawRp 98; (1980) 31 ALR 25.
[255] Dixon J in McDermott (1948) 76 CLR 501, 512 emphasises the existence of other forms of inducement than ‘the use by persons in authority of hope or fear’ while the full High Court in Lee [1950] HCA 25; (1950) 82 CLR 133, 144 after emphasising that there was really only one rule—that a statement must be voluntary in order to be admissible—stated that ‘any one of a variety of elements, including the threat or promise by a person in authority, will suffice to deprive [a confession] of a voluntary character’. See also R v Attard [1970] 1 NSWR 750, 756 (CCA).
[256] Collins v R [1980] FCA 72; (1980) 31 ALR 257, 289 (Fed Ct).
[257] R v Wilson [1967] 2 QB 406, 415.
[258] Deokinan v R [1969] 1 AC 20, 33. See also R v Smith [1959] 2 QB 35.
[259] Note NSW legislation on this subject: Crimes Act 1900 s 410(1).
[261] [1954] HCA 78; (1954) 91 CLR 628, 640. See also the recent Canadian Supreme Court decision of Rothman v R (1981) 20 CR (3d) 97.
[262] R v Poku [1978] Crim L Rev 488; R v Sang [1979] UKHL 3; [1979] 2 All ER 1222, 1229 (Lord Diplock); Ajodha v The State [1981] 2 All ER 193, 201; R v Oates [1979] Tas SR 203, 204; R v Linnane (1979) 32 SASR 72; R v Mitchell Unreported (26 July 1978) (Qld CCA). See in particular Murphy J in Cleland v R [1982] HCA 67; (1982) 43 ALR 619, 628.
[263] Cornelius v R (1936) 55 CLR 235, 252.
[264] R v Bankowski (1971) 18 FLR 179; Frijaf v R [1982] WAR 128; R v Wilson [1981] 1 NZLR 316.
[265] Cornelius v R (1936) 55 CLR 235, 246 (FHC); Beamish v R [1962] WAR 85, 87, 99-100 (CCA); Collins v R [1980] FCA 72; (1980) 31 ALR 257, 259 (Bowen CJ), 308 (Brennan J) (Fed Ct).
[266] [1946] HCA 55; (1946) 73 CLR 316.
[267] [1980] FCA 72; (1980) 31 ALR 257, 307-8 (Fed Ct). See also Basto v R [1954] HCA 78; (1954) 91 CLR 628, 638-9.
[268] R v Sykes (No 1) [1969] VicRp 78; [1969] VR 631, 637; R v Hart (1977) 17 SASR 100; R v Oates [1979] Tas SR 203, 205 (Cosgrove J). See also Lee J in R v Chiron [1980] 1 NSWLR 218, 2398.
[269] Street J in R v Jefries [1946] NSWStRp 54; (1946) 47 SR (NSW) 284, 311 (CCA).
[270] R v Buchanan [1966] VicRp 3; [1966] VR 9, 15 (FC) (Sholl J).
[271] R v Isequilla [1975] 1 All ER 77, 83 (CCA); R v Chiron [1980] 1 NSWLR 218, 238A, 2386-239A (but see 239B—Lee J dissenting). The other members of the Court of Criminal Appeal did not consider this subject).
[272] McTieman J in Sinclair v R [1946] HCA 55; (1946) 73 CLR 316, 340; Klemenko v Huffa (1978) 17 SASR 549, 556.
[273] Klemenko v Huffa (1978) 17 SASR 549, 555, 556 (Bray CJ, perhaps misinterpreting Latham CJ in Sinclair).
[274] R v Horvath (1979) 93 DLR (3d) 1.
[275] R v Ostojic (1978) 18 SASR 188, 197 (FC).
[276] R v Pratt (1965) 83 WN (NSW) 358, 366; Dixon v McCarthy [1975] 1 NSWLR 617, 640; R v C [1976] Qd R 341; Collins v R [1980] FCA 72; (1980) 31 ALR 257, 321 (Fed Ct).
[277] R v Roberts [1970] Crim L Rev 464.
[278] R v Jones Unreported (11 September 1978) (Vic SC). It was also held not to be sufficient reason to exercise the discretion.
[279] Dixon v McCarthy [1975] 1 NSWLR 617, 640. See also the NSW Police Manual, 31-12.
[280] R v M [1976] Qd R 344. See J Harper, ‘The Questioning of Juveniles’ (1980) Qld Law Society J (February) 9.
[281] R v C [1976] Qd R 341; R v W Unreported (5 February 1975) (Qld SC); ‘circumstances themselves, of course, can be overpowering, and the police do have an authority of their own which could be frightening for a child’ (Andrews J).
[282] Harper, 10.
[283] Frijaf v R [1982] WAR 128.
[284] R v Anunga [1905] ArgusLawRp 116; (1976) 11 ALR 412.
[285] See N Rees, ‘Police Interrogation of Aboriginals’ in J Basten, M Richardson, C Ronalds & G Zdenkowski (ed) The Criminal Injustice System, Australian Legal Workers Group and Legal Service Bulletin, Sydney, 1982, 18; R v Hoosen Unreported (10 April 1978) (NTSC) 18: R v Hogan Unreported (24 November 1980) (NTSC); R v Jungala Unreported (21 March 1980) (NTSC).
[286] R v Gibson Unreported, (12 November 1973) (SASC); R v Williams (1976) 14 SASR 1.
[289] Appendix C, para 141.
[290] Evidence Ordinance 1971 s 68.
[291] [1977] HCA 43; (1977) 137 CLR 517, 541.
[292] id, 542.
[293] id, 544.
[294] id, .523. See also R v West [1973] Qd R 338 (CCA); R v Scripps [1978] TASStRp 20; [1978] Tas SR 209.
[295] R v Mead Unreported (24 August 1977) (Tas SC); R v Davis Unreported (21 November 1977) (Vic SC); R v Boyson Unreported (28 September 1979) (NSW CCA).
[296] Hunt J in R v Boyson Unreported (28 September 1979) (NSW CCA) 5. The High Court, although refusing leave to appeal, preferred this statement to the approach of the majority.
[297] [1982] HCA 67; (1982) 43 ALR 619.
[298] id, 624 (Gibbs CJ, Wilson J agreeing); 630 (Murphy J) 630; 635 (Deane J); 644-5, (Dawson J).
[299] id, 624-5, 645 respectively.
[300] id, 633.
[301] id, 638.
[302] id, 630-1.
[303] [1950] HCA 25; (1950) 82 CLR 133.
[304] id, 154.
[305] (1948) 76 CLR 501, 513.
[306] id, 507.
[307] [1946] NSWStRp 54; (1947) 47 SR (NSW) 284.
[308] [1950] HCA 25; (1950) 82 CLR 133, 155.
[309] See Cornelius v R (1936) 55 CLR 235, 251.
[310] R v Lee [1950] HCA 25; (1950) 82 CLR 133, 152, 154, 159. The Court stated that if the trial judge thought that the impropriety ‘was not likely to result in an untrue confession being made, that would be a good reason, though not a conclusive reason. for allowing the evidence to be given’ (id, 153).
[311] Resolved affirmatively—see above para 149.
[312] R v Lavery (No 2) (1979) 20 SASR 430, 432-3; R v Austin (1979) 21 SASR 315; R v Szach (1980) 23 SASR 504.
[314] id, 132, 142-3.
[315] [1980] FCA 72; (1980) 31 ALR 257.
[316] See 312, 314 (Brennan J) and 277 (Muirhead J).
[317] [1982] HCA 67; (1982) 43 ALR 619.
[318] id, 622, (Gibbs CJ, Wilson J concurring), 629-30 (Murphy J), 632 (Deane J), 641 (Dawson J). See also MacPherson v R [1981] HCA 46; (1981) 55 ALJR 594, 506 (Brennan J). They also considered that any police illegality would be relevant to the question of fairness.
[319] [1980] FCA 72; (1980) 31 ALR 257.
[320] id 315, 317, quoting Barwick CJ in Driscoll v R [1977] HCA 43; (1977) 137 CLR 517, 523.
[321] See GL Teh, ‘An Examination of the Judges’ Rules in Australia’ (1972) 46 ALJ 489; Waight and Williams, 716-25; Cross on Evidence, para 532. Teh states: the courts ‘have very rarely rejected statements simply on the ground that one or more of the Judges’ Rules have been breached’ (id, 507). But cf R v Whitford [1980] Tas SR 98,100.
[322] See Appendix C, para 145-8.
[323] See Appendix C, para 149.
[324] [1914] AC 599, 610.
[325] ITC Film Distributors v Video Exchange Ltd (1982) 2 All ER 241, 246; Mazinski v Bakka (1979) 20 SASR 350, 361.
[326] See Appendix C, para 95-111.
[327] See JM McGuire, Evidence, Common Sense and Common Law, Foundation Press, Chicago, 1947, 23-31; GD Nokes, Cockle’s Cases and Statutes on Evidence, 11th edn, Sweet & Maxwell, London, 1978, 85; HA Hammelmann, ‘Expert Evidence’ (1947) 10 ML Rev 32, 33; Hollington v Hewthorn and Co [1943] 1 KB 587, 593 (Lord Goddard CJ).
[328] See DC McDonald, ‘Opinion Evidence’ (1978) 16 Osgoode Hall LJ 321.
[329] Cross on Evidence, para 16.2ff; Heydon, Cases and Materials on Evidence, 369.
[330] Z Cowen & PB Carter, Essays on the Law of Evidence, Oxford University Press, London, 1956, 166-7.
[331] M McCormick, ‘Opinion Evidence in Iowa’ (1970) 19 Drake L Rev 245, 174.
[332] Wigmore on Evidence, para 1917; JD Finlaison (ed) Wills on the Law of Evidence. 3rd edn, Stevens & Sons, London, 1938, 150.
[333] Note, however, McInerney J in Morley v National Co [1967] VicRp 61; [1967] VR 566, 567 & JB Thayer, Preliminary Treatise on the Law of Evidence at Common Law, Little, Brown & Co, Boston, 1898, 524, (‘In a sense all testimony to matter of fact is opinion evidence’).
[334] (1982) 28 SASR 119, 123ff.
[335] Wigmore on Evidence, para 1919.
[336] GC Lewis, Influence of Authority in Matters of Opinion (1849) 1.
[337] Wigmore on Evidence, para 1919.
[338] R v Perry (1981) 28 SASR 119, 126.
[339] Etymologically, of course, there can be no argument as ‘expert’ and ‘experience’ come from the same root, experior, ‘try out’ or ‘know by experience’. See for example R v Silverlock [1894] UKLawRpKQB 152; [1894] 2 QB 766.
[340] (1966) 40 ALJR 436, 438. See also Clark v Ryan [1960] HCA 42; (1959-60) 103 CLR 486. Prior to these cases there had been some limited support for the view that expertise could be acquired through experience and that formal training need not be necessary: Wise Brothers Pty Ltd v Commissioner for Railways (NSW) [1947] HCA 33; (1941) 75 CLR 59 (McTiernan J). In Transport Publishing Co Pty Ltd v The Literature Board of Review, [1956] HCA 73; (1956) 99 CLR 111, 119, Chief Justice Dixon, with Justices Kitto and Taylor agreeing, appeared unconcerned about contemplating an expert being ‘one qualified by special training or experience’ and the balance of opinion tended to be in favour of not delimiting the means of acquisition of expertise in any particular way. Note, however the ambiguous statement of Justice Dixon in Bugg v Day [1949] HCA 59; 79 (1949) CLR 442, 462-3.
[341] [1942] NSWStRp 17; (1942) 42 SR (NSW) 187.
[342] (1968) 15 LGRA 407, 409 (Chambers J).
[343] Price v R Unreported, No 67, (17 December 1981) (Tas CCA) 6 (Green CJ). See also Cosgrove J—‘The proper test ... is whether the witness’ experience or study in the field under discussion is such that his opinion has more weight than that of an ordinary person’ (id, 16).
[344] eg R v Carn (1982) 5A Crim R at 466, 469.
[345] See for example Chief Justice Young in R v Wright [1980] VicRp 56; [1980] VR 593 608: Burger King Corporation v Registrar of Trade Marks [1973] HCA 15; (1973) 47 ALJR 237 (Gibbs J as he then was) and Epperson v Dampney [1904] VicLawRp 58; (1976) 10 ALR 227, 233-4 (Hutley J).
[346] See for example R v O’Callaghan [1976] VicRp 43; [1976] VR 441.
[347] [1977] 2 NSWLR 935 (reporting the NSW Court of Appeal decision).
[348] id, 938.
[349] Fisher v R (1961) 130 CCC 1, 19-20 (Aylesworth J) (Ontario CA); R v Palmer (1980) 1 A Crim R 458, 463-4 (Glass JA).
[350] eg R v Wright [1980] VicRp 56; [1980] VR 593, 597-8, Samuels v Flavel [1970] SASR 256, 261-2, Cavanett v Chambers [1968] SASR 97, 105; Dahl v Grise [1981] VicRp 50; [1981] VR 513, 522; R v McEndoo [1981] 5 A Crim R 52, 54.
[351] See Rich v Pierpont [1801] EngR 6; (1862) 3 F & F 35; 165 ER 16; Sills v Brown [1840] EngR 1098; (1840) 9 Car & P 601: 173 ER 974; Haynes v Doman [1892] UKLawRpCh 36; [1892] 2 Ch 13, 24: R v Honner [1977] TASStRp 1; [1977] Tas SR 1, 6.
[353] id, 214.
[354] See R v Holmes [1953] 1 WLR 686; [1953] 2 All ER 324; R v Mathews (1953) 17 CR 241; 9 WWR (NSW) 650.
[355] Yorke v Yorkshire Insurance Company [1918] 1 KB 662; Sun Insurance Office v Roy [1927] 1 DLR 17, 21.
[356] Fenwick v Bell [1844] EngR 319; (1844) 1 Car & Kir 312; 174 ER 825.
[357] Davy v Morrison [1931] 4D LR 619, 626; R v Riven (1950) 34 Cr App R 87. In civil cases the medical witness may now express an opinion upon whether the defendant was negligent but is more likely to be asked whether the defendant fell below normal professional standards: Rich v Pierpont [1862] EngR 192; (1862) 3 F & F 35; 176 ER 16; A Samuels, ‘Expert Forensic Evidence’ (1974) 14 Medicine, Science and The Law 17, 20.
[358] R v Mason (1911) 7 Cr App R 67.
[359] R v Smith (1915) 11 Cr App R 229, 238.
[360] Cross on Evidence, para 16.18; R v Whitby (1975) 74 WN (NSW) 441; R v Spooner [1957] VicRp 73; [1957] VR 540; R v McKimmic [1957] VicRp 73; [1957] VR 540; R v Kelly [1958] VicRp 67; [1958] VR 412.
[361] R v Darrington and McGauley (1979)1 A Crim R 124, 158 Justice Jenkinson of the Victorian Court of Criminal Appeal, with whom Chief Justice Young agreed, stated:
If there now be such a rule, its operation is not in my opinion to be avoided by such devices as posing the question as one concerning the capacity to do an act or to conceive an intention, in lieu of one as to whether the act was in fact done or the intention in fact conceived.
The statement does not comport easily with the many occasions on which the rule is circumvented by verbal prestidigitation. (Contrast the position with insanity, negligence, fraud.)
[362] See Phipson on Evidence, para 1209. The authorities quoted by the editors of Phipson for the latter proposition are R v Staunton, The Times. (September 26, 1877); The Gardner Peerage (1824) Le Marchant’s Rep, 85-90; Wright v Tatham 7 CL & F 670, 690; [1838] EngR 710; 7 ER 559: Re Dyce Sombre [1849] EngR 498; 1 Mac & G 116, 128[1849] EngR 498; , 41 ER 1207 (Lord Cottenham). It is also most dubious whether these authorities stand for the proposition asserted.
[364] cf Steffen v Ruban (1966) 84 WN Pt 1 (NSW) 264.
[365] (1974) 8 SASR 118, 119.
[366] Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642.
[368] id, 161.
[369] id, 162.
[370] id, 162-3.
[371] Gordon v R (1982) 41 ALR 64; R v Reiner (1974) 8 SASR 102: R v Schafferius [1977] Qd R 213; R v Ahmed Din (1962) 46 Cr App R 269, 274, 276; R v MacKenny (1980) 72 Cr App R 78; R v Turner (1974) 6o Cr App R 80, 82 (Lawton LJ). See Appendix C, para 108.
[372] R v Haidley and Alford [1984] VicRp 18; [1984] VR 229, 250-1.
[373] id, 234.
[374] See Appendix C, para 151-162.
[377] [1969] VicRp 35; [1969] VR 293.
[378] Evidence Act 1977 (Qld) s 79(2); Evidence Ordinance 1971 (ACT) s 77(2).
[379] Evidence Act 1929 (SA) s 34a; Evidence Act (NT) s 26A.
[380] Defamation Act 1974 (NSW) s 55.
[381] ACT Evidence Ordinance 1971 s 78.
[382] Evidence Act 1970 (Qld) s 80.
[383] See Appendix C, para 166-71.
[384] R v Rowton [1865] EngR 53; [1865] Le & Ca 520; 169 ER 1497; R v Butterwasser [1948] 1 KB 4, 6.
[385] Attwood v R [1960] HCA 15; (1960) 102 CLR 353, 359.
[386] Crimes Act 1900 s 413B(1).
[387] Crimes Act 1900 NSW s 413; Evidence Ordinance 1971 (ACT) s 56.
[388] Attwood v R [1960] HCA 15; (1960) 102 CLR 353, 359.
[389] R v Falconer-Attlee (1973) 58 Cr App R 348, 358; Stirland v DPP [1944] AC 315, 362 (Visount Simon LC)(HL).
[390] R v Thompson [1966] QWN 47 (Gibbs J).
[391] R v Trimboli (1970) 21 SASR 577; R v Nilon (1981) 5 A Crim R 385 (Qld CCA).
[392] Evidence of guilt—R v Samuel (1956) 40 Cr App R 8; to neutralise—R v Stalder [1981] 2 NSWLR 9, 18, 30. But note that provisions in the ACT (Evidence Ordinance 1971 s 71) and NSW (Crimes Act 1900 s 412) permit evidence of bad character to be used as evidence of guilt.
[393] Stirland v DPP [1944] AC 315, 324-5; Jones v DPP [1962] AC 635, 698, 699 (Lord Devlin). The House of Lords left the matter open in Selvey v DPP [1970] AC 304.
[394] Crimes Act 1900 s 413B(1).
[395] Evidence Ordinance 1971 s 70(1).
[396] R v Coulman (1927) 20 Cr App R 104, 108. In New South Wales, s 413B(1) expressly covers ‘good disposition or reputation’ established ‘directly or by implication’.
[397] R v Cutajar Unreported (12 December 1980) (Vic CCA).
[398] Maxwell v DPP [1935] UKHL 3; [1935] AC 209, 319; R v Samuel (1956) 40 Cr App R 8.
[399] [1972] HCA 71; (1972) 128 CLR 114, 127.
[400] id, 133. Menzies J considered that the cross examination in the case went to the issues as well as credit, but via a ‘similar fact’ reasoning process rather than via a general bad character inference: id, 133. However he did think that the direction suggested by Barwick CJ was always necessary. See also Aickin J in Matusevich v R [1977] HCA 30; (1977) 137 CLR 633, 659; R v Schneidas (No 2) (1980) 4 A Crim R 101, 116 (NSW CCA).
[401] [1894] AC 57.
[402] id, 65.
[403] [1978] HCA 29; (1978) 140 CLR 108.
[404] id, 1:6. Stephen, Jacobs and Aickin JJ agreed with Gibbs ACJ.
[405] It is clear that the prosecution cannot adduce evidence of the accused’s ‘bad character’ to support an assertion that he committed the crime charged: Attwood v R [1960] HCA 15; (1960) 102 CLR 353, 359.
[406] Gibbs ACJ in Markby v R [1978] HCA 29; (1978) 140 CLR 108 and in Perri v R (1983) 57 ALJR 110, 113. Justice Brennan also indicated in that case that the prosecution cannot adduce evidence for the purpose of showing that the accused has a propensity to commit crimes of the sort with which he is charged (id, 123).
[407] See PB Carter, Cases and Statutes on Evidence, Sweet & Maxwell, London, 1981, 535; DR Piragoff, Similar Fact Evidence. Carswell Co, Toronto, 1981, 14; PK Waight & CR Williams, Cases and Materials on Evidence, Law Book Co, Sydney, 1980, 396; Cross on Evidence, para 14.2; JD Heydon, Cases and Materials on Evidence, Butterworths, London, 1975, 255.
[408] Which is close to ‘character’ and may be analogous to ‘disposition’.
[409] See Lord Cross in DPP v Boardman [1975] AC 421, 456-7.
[410] See eg R v Ball [1910] UKLawRpAC 59; [1911] AC 47; R v Straffen [1952] 2 QB 911; O’Geary v R (1946) 23 CLR 556; R v Chandler [1956] SR (NSW) 335.
[411] (1983) 57 ALJR 110, 115.
[412] In particular, the House of Lords Decision in Boardman v DPP [1975] AC 421.
[413] (1983) 57 ALJR 110, 121.
[414] (1982) 137 DLR (3d) 703.
[415] (1982) 137 DLR (3d) 702, 706.
[416] See Appendix C, para 169-70.
[417] A particular example relates to similar allegations—if different and independent witnesses make similar allegations about the behaviour of the accused on different occasions, the evidence can be received because of the improbability of the coincidence. See DPP v Boardman [1975] AC 421.
[418] (1983) 57 ALJR 110. For an analysis of the case, see S Odgers, ‘Similar Fact Evidence and Perry v The Queen (1983) 57 ALJ 613.
[419] id, 114.
[420] id, 122.
[421] id, 119.
[422] id, 124.
[423] id, 113-4.
[424] id, 123.
[425] [1894] AC 57, 65 (PC).
[426] See R v Heidi (1976) 14 SASR 574, 583 (Bray CJ) citing Noor Mohammed v R [1949] AC 182, 191 (PC) and Harris v DPP [1952] AC 694, 706-7. See also R v Sims [1946] KB 531, 539 (CCA).
[427] R v Sims [1946] KB 531, 539 (CCA); R v McIntosh [1967] TASStRp 11; [1967] Tas SR 103.
[428] Markby v R [1978] HCA 29; (1978) 140 CLR 108, 116-7 (Gibbs ACJ, as he then was) citing the House of Lords in Harris v DPP [1952] AC 694, 705, 710.
[429] R v Bond [1906] UKLawRpKQB 91; [1906] 2 KB 389, 417 (Bray J): R v Yuille [1948] VLR 41.
[430] [1918] AC 221, 232, (HL); R v Heidi (1976) 14 SASR 574, 586 (Walters J).
[431] [1952] AC 694, 701.
[432] See Appendix C, para 56-7.
[433] Markby v R [1978] HCA 29; (1978) 140 CLR 108, 117 (Gibbs ACJ); Lord Wilberforce in DPP v Boardman [1975] AC 421, 444 (Lord Wilberforce). See also R v Chiron [1980] 1 NSWLR 230.
[434] DPP v Boardman [1975] AC 421, 439 (Lord Morris).
[435] id, 456 (Lord Cross).
[436] Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367. 376 (Dixon J).
[437] [1982] HCA 65; (1983) 57 ALJR 1 10.
[438] Thereby overruling R v Chee [1980] VicRp 32; [1980] VR 303. The Victorian Full Court in R v Chee was ‘of the opinion that it is not a condition of the admissibility of similar fact evidence ... that the evidence shall have, not merely probative force ... but a high degree of probative force’ (id, 308). The members of the court in Chee perceived the meaning of ‘relevance’ as that expressed in R v Stephenson [1976] VicRp 34; [1976] VR 376, 380-1 (evidence is ‘legally’ irrelevant it’, despite ‘logical’ relevance, its ‘minimal’ probative value renders it ‘insufficiently relevant or too remotely relevant’). It is probable that the requirement of substantial probative value extends to morally neutral similar fact evidence: Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367 but cf Mister Figgins Pty Ltd v Centrepoint Freeholds Pty Ltd [1981] FCA 15; (1981) 36 ALR 23, 30 (Fed Ct) but not to similar fact evidence adduced by a co-accused; Sutton v R [1984] HCA 5; (1984) 58 ALJR 60.
[439] Perry v R (1983) 57 ALJR 110, 113 (Gibbs J); Sutton v R [1984] HCA 5; (1984) 58 ALJR 60, 62.
[440] Perry, 121.
[441] Perry, 123; Sutton, 68.
[442] Perry, 123: Sutton, 68-9.
[443] [1984] HCA 5; (1984) 58 ALJR 60, 74.
[444] Perry, 119: Sutton, 64.
[445] Sutton, 75.
[446] Markby v R [1978] HCA 29; (1978) 140 CLR 108, 117 (Gibbs ACJ); Perry v R (1983) 57 ALJR 110, 121 (Wilson J).
[447] R v Murray [1980] 2 NSWLR 526, 535 (CCA); Knight v Jones; ex parte Jones [1981] Qd R 98 (FC).
[448] [1979] WAR 45. This case did not involve similar fact evidence, but rather evidence of admissions.
[449] Knight v Jones: ex parte Jones [1981] Qd R 98, 108. The rest of the Full court did not expressly consider whether a discretion existed in these circumstances, although they implied that it did not (id, 103).
[450] [1980] 2 NSWLR 526, 535.
[451] [1980] VicRp 36; [1980] VR 353, 384-5.
[452] [1983] VicRp 78; [1983] 2 VR 155, 172.
[453] See Appendix C, para 172-5.
[454] Hollingham v Head [1858] EngR 535; (1858) 4 CBNS 388; 140 ER 1135, 1136-7; Manenti v Melbourne and Metropolitan Tramway’s Board [1953] VicLawRp 78; [1954] VLR 115, 117 (Sholl J) citing Dixon J (as he then was) in Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367, 376 (a criminal case).
[455] The Managers of the Metropolitan District Asylum v Hill (1882) 47 LTR 35 (Lord Watson); Blake v Albion Life Assurance Society (1874) 4 LPD 94.
[456] Kriss v City of South Perth [1966] WAR 210, 210-11 (Darcy J). Compare the NSW Supreme Court in Anderson v Commissioner for Railways [1960] SR (NSW) 519, 526 (Owen J) and Culley v Silhouette Health Studios Pty Ltd [1966] 2 NSWR 640 (CCA)—See Appendix C, para 173.
[457] Mister Figgins Pty Ltd v Centrepoint Freeholds Pty Ltd [1981] FCA 15; (1981) 36 ALR 23, 28, citing Dixon J in Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367, 375-6; See also Hales v Kerr [1908] UKLawRpKQB 114; [1908] 2 KB 601. This approach has subsequently been followed by Ellicott J in Gates v City Mutual Life Assurance Society Ltd [1937] ArgusLawRp 41; (1982) 43 ALR 313, 327-8. However in HW Thompson Building Pty Ltd v Allen Property Services Pty Ltd [1983] FCA 166; (1983) ATPR 40-371 St John J of the Federal Court declined to follow earlier Federal Court decisions above which he said had wrongly applied Dixon J.’s statement from Martin v Osborne. According to St John J the latter case ‘does not alter the law which was succinctly stated in Makin v Attorney-General (NSW)’ (ibid).
[458] HW Thompson Building Pty Ltd v Allen Property Services Pty Ltd [1983] FCA 166; (1983) ATPR 40-371, 44, 221.
[459] Lays v Eichstadt [1961] Qd R 457.
[460] Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367.
[461] [1971] 1 NSWLR 713 (CA).
[462] id, 721.
[463] [1962] UKHL 3; [1962] 1 All ER 623, 634.
[464] See Appendix C, para 176-9.
[465] ‘Victims’ are discussed below.
[466] Cross on Evidence, para 14.56; Walker v Stephenson (1801) 2 Esp 284, 170 ER 617: Bishop of Durham v Beaumont [1808] EngR 94; (1808) 1 Camp 207, 170 ER 931; Provis v Reed [1829] EngR 448; (1829) 5 Bing 435, 130 ER 1129.
[467] (1979) 39 FLR 315.
[468] id, 348.
[470] id, 103; citing Lowery v R [1974] AC 85, 102 (PC). However, the requirement of ‘relevance’ has provided considerable scope for trial judges to exclude what seems to be probative evidence, and could be applied to prevent the admission of ‘character’ evidence in this situation.
[471] [1982] VicRp 30; [1982] VR 326—decided in 1967.
[472] [1983] VicRp 78; [1983] 2 VR 155, 170-1.
[473] [1958] SASR 95. See also R v Beech (1978) 20 SASR 410.
[474] By means of specific instances of conduct, reputation and, probably, opinion evidence.
[475] For convenience the term ‘complainant’ shall be used in the rest of the chapter as a shorthand version of this term.
[476] Lord Hailsham (ed) Halsbury’s Laws of England, vol 17, para 282ff: Law Reform Commissioner of Victoria, Report No 5, Rape Prosecutions, Govt Printer, Melbourne, 1976, section 12; JA Scutt, ‘Admissibility of Sexual History Evidence and Allegations in Rape Cases’ (1979) 53 ALJ 817, 820-1.
[477] R v Clarke [1816] EngR 146; (1817) 2 Stark 241; 171 ER 633.
[478] R v Cockcroft (1870) 11 Cox CC 410; R v Riley [1887] UKLawRpKQB 26; (1887) 18 QBD 481; R v McCready [1967] VicRp 36; [1967] VR 325: R v Thompson [1951] SASR 135. Including evidence of the complainant’s acts of intercourse with the accused after the alleged rape: R v Aloisio (1969) 90 WN (Pt 1) (NSW) 111 (CA).
[479] R v Bashir [1969] 3 All ER 692, 693; R v Holmes (1871) LR 1 CCR 334, 336; R v Thompson [1951] SASR 135.
[481] Ranging from ‘rape’, to ‘indecent assault’, to ‘sexual offence’. See Appendix C, para 179.
[482] See Appendix C, para 179.
[483] Of sexual conduct with persons other than the accused.
[484] See Appendix C, para 180-5.
[485] See also provisions in Victoria, NT, Western Australia, South Australia and Tasmania.
[486] Cross on Evidence, para 10.56; PK Waight & CR Williams, Cases and Materials on Evidence, Law Book Co, Sydney, 1980, 396.
[487] A-G v Hitchcock [1847] EngR 616; (1847) 1 Exch 91, 99[1847] EngR 616; , 154 ER 38. 42. See also Appendix C, para 181-5.
[488] Evidence Ordinance 1971 (ACT) s 56(2) and Crimes Act 1900 (NSW) s 413.
[489] R v Toohey [1965] AC 595; Lowery v R [1974] AC 85 (on appeal from the Victorian Supreme Court); R v Turner [1975] 1 QB 834, 842; R v Tonkin [1975] Qd R 1.
[490] Cross on Evidence, para 10.56; Bugg v Day [1949] HCA 59; (1949) 79 CLR 442, 475; T Simos, ‘The Nature and Scope of Cross-Examination as to Credit’ in HH Glass (ed) Seminars on Evidence, Law Book Co, Sydney 1970, 178-9.
[491] (1964) NSWR 377, 382.
[492] Although Western Australia limits the provision to indictable offences (s 23(1)).
[493] The Crimes Act covers criminal cases only.
[494] Except in the ACT.
[495] In NSW only if the main purpose of the cross-examination is an attack on the witness’ credit.
[496] It was thought at one time that the statutory exception could not be invoked by the prosecution where the imputation relied on was a necessary part of the defence: R v Preston [1909] UKLawRpKQB 29; [1909] 1 KB 568; R v Bridgwater [1904] UKLawRpKQB 190; [1905] 1 KB 131; Stirland v DPP [1944] AC 315, 327. This view still prevails in Scotland—O’Hara v HM Advocate [1948] SC (J) 90. However, it is now settled that, with one exception, words of the relevant statutes are to be given their ordinary meaning and that the shield may be thrown away even by an imputation which is an essential ingredient of the defence: Curwood v R [1944] HCA 40; (1944) 69 CLR 561; Damson v R [1961] HCA 74; (1961) 106 CLR 1; Selvey v DPP [1970] AC 304; Cushing v R [1977] WAR 7 (FC); R v Bransden (1981) 27 SASR 474, 480. The exception relates to trials for heterosexual rape: Selvey v DPP [1970] AC 304, 399.
[497] The Crown Prosecutor is not ‘the prosecutor’ for the purposes of the provisions—that word is deemed to connote the informant or instigator of the prosecution: R v Billings [1961] VicRp 21; [1961] VR 127.
[498] Imputations against police officers or other persons who are not called as witnesses for the prosecution do not constitute imputations within the legislation: R v Westfull (1912) 7 Cr App R 176.
[499] R v Rouse [1903] UKLawRpKQB 188; [1904] 1 KB 184.
[500] Curwood v R [1944] HCA 40; [1944] 69 CLR 561, 588; Dawson v R [1961] HCA 74; (1961) 106 CLR 1.
[501] R v Jones (1923) 17 Cr App R 117, 120.
[502] Crimes Act 1900 (NSW) s 413A(4); Evidence Act 1929 (SA) s 18(2)(3).
[503] A NSW provision having similar effect was repealed in 1974 and replaced by the provision considered below. The SA provision was introduced in 1983. Evidence Act 1906 (WA) s 81(1)(d); Evidence Act 1910 (Tas) s 85(1)(d); Evidence Act 1929 (SA) s 18; Evidence Ordinance 1971 (ACT) s 69.
[504] In NSW, s 413A and 413B of the Crimes Act 1900 do not deal with the question whether an accused person may take refuge from answering questions which might tend to incriminate him in relation to the offence with which he is charged. This appears to have been an oversight on the part of the legislature.
[505] The majority of the House of Lords in Jones v DPP [1962] AC 635; see also R v Cokar [1960] 2 QB 207.
[506] Minority view of Lords Denning and Devlin in Jones v DPP [1962] AC 635. See also R v Chitson [1909] 2 KB 94-5; R v Kennaway [1917] 1 KB 25. A similar view to this was expressed in High Court dicta in Attwood v R [1960] HCA 15; (1960) 102 CLR 353, 360-2.
[507] See, in particular, Crimes Act 1900 (NSW) s 413A(2).
[508] See Appendix C, para 61-76.
[509] [1979] VicRp 7; [1979] VR 57.
[510] id, 59. See also R v Matthews and Ford [1972] VicRp 1; [1972] VR 3. 11-3; Beneficial Finance Co Ltd v Conway [1970] VicRp 39; [1970] VR 321.
[511] [1979] 1 A Crim R 289, 241.
[512] Conwell v Tapfield (1981) 1 NSWLR 595.
[513] The Court did not state whether the recording tendered must be the original, or whether a re-recording is adequate.
[514] R v Migliorini [1981] TASRp 8; (1982) 38 ALR 356, 362.
[515] Evidence (Reproduction) Act 1967 (NSW); Evidence Act 1977 (Qld) s 104ff; Evidence Act 1910 (Tas) s 68Aff; Evidence Act 1958 (Vic) s 53ff; Evidence Act 1906 (WA) s 73.
[516] The legislation differs in that the WA legislation contains additional provisions relating to compliance with the Stamps Act, Ministerial power to exclude documents, and different provisions relating to the period for which original documents must be kept, and the period prescribed for ancient documents. The differences are referred to below.
[517] See Appendix C, para 65.
[518] See Appendix C, para 66.
[519] See Appendix C, para 67.
[520] See Appendix C, para 67.
[521] See above para 132-4.
[522] See definition of ‘document’. See also recently enacted Evidence Act 1910 (Tas) s 68.
[523] See Appendix C, para 277-84.
[524] Reliability and accuracy are likely to be in issue when computer output and business records are sought to be proved. See EM Morgan, Basic Problems of Evidence, 4th edn, Practising Law Institute, New York, 1963, 378.
[525] Mehesz v Redman (1980) 25 SASR 244, 252.
[526] R v Maqsud Ali [1966] 1 QB 688; cited with approval in R v Matthews and Ford [1972] VR 311; R v Nilson [1968] VicRp 26; [1968] VR 238, 241.
[527] R v Magsud Ali [1966] 1 QB 688, 702.
[529] It was submitted that they were riddled with discontinuities; that they were in many parts unintelligible; that some were of very poor quality and that altogether they were so untrustworthy and suspect that their potential prejudice far outweighed any evidential value they might have.
[530] [1972] 1 WLR 651; defective tapes admitted in R v Menzies [1982] NZCA 19; [1982] 1 NZLR 40.
[531] Wigmore on Evidence, para 795.
[532] R v Robson [1972] 1 WLR 651, 653-4. Reference is made to a balance of probabilities test and to a prima facie test. The prima facie test is cited in R Cross, Evidence, 5th (English) edn, Butterworths, London, 1979, 13-1. cf the evidence led regarding video tapes in Kajala v Noble [1982] Crim L Rev 433.
[533] R v Robson [1972] 1 WLR 651, 656.
[534] [1981] 1 NSWLR 595, 599.
[535] Evidence Ordinance 1971 (ACT) s 17, 18.
[536] Evidence Ordinance 1971 (ACT) s 19.
[537] Evidence Act 1905 (Cth) s 7L; Evidence Act 1898 (NSW) s 14CO; Evidence Act 1910 (Tas) s 40M.
[538] Evidence Act 1905 (Cth) s 7H; Evidence Act 1898 (NSW) s 14CL; Evidence Act 1910 (Tas) s 40J.
[539] Evidence Act 1910 (Tas) s 40A.
[540] Evidence Act 1929 (SA) s 45a.
[541] Various other conditions must be satisfied and discretions to exclude are included—see above Appendix C, para 282.
[542] Evidence Act 1929 (SA) s 45b.
[543] Relevant factors are whether the maker should be called, whether prejudice outweighs probative value and whether it would be otherwise contrary to the interests of justice. Guidance is given on the assessment of weight.
[544] Evidence is required that it was received from a telegraph office. See Appendix C, para 282.
[545] Re certain categories of documents purportedly relating to the transportation of goods and persons, see Evidence Act 1910 (Tas) s 81Q; Evidence Act 1927 (SA) s 45; Crimes Act 1900 (NSW) s 419A; Evidence Act 1906 (WA) s 41A; Evidence Act (NSW) s 35.
[546] ‘Purporting to be signed by employer’. See Evidence Act 1898 (NSW) s 43A; Evidence Act (NT) s 42A; Evidence Ordinance 1971 (ACT) s 38.
[547] Reg 93.
[548] Available at inquests and indictable offences tried summarily—see Evidence Ordinance 1971 (ACT) s 75; Evidence Act 1958 (Vic) s 75A; Crimes Act 1900 (NSW) s 414A; Equity Act 1867 (Qld) s 54. Note power to require attendance of certifier.
[549] See above para 132 and Appendix C, para 282. Note, legislation was recently enacted in South Africa (Computer Evidence Act 1983) which is similar to the South Australian legislation. A significant difference, however, is that it distinguishes the authentication question from the exclusionary rules question. It provides for detailed evidence to be given about the reliability of the systems and their input for the purpose of authenticating a print-out (s 2). It later provides for the print-out to be admitted as an exception to the hearsay rule (s 3).
[550] Evidence Act (Cth) s 7B; Evidence Act 1898 (NSW) s 14CE; Evidence Act 1910 (Tas) s 40A.
[551] Note: the legislation states that the reliability of the device is a matter relevant to weight to be given to the evidence: Evidence Act 1905 (Cth) s 7P; Evidence Act 1898 (NSW) s 14C1; Evidence Act 1910 (Tas) s 40G. The legislation thus either assumes that such evidence will be led or will have the effect of forcing parties to do so.
[552] See Appendix C, para 310-313.
[553] Scott v Numurkah Corporation [1954] HCA 14; (1954) 91 CLR 300.
[554] [1979] VicRp 63; [1979] VR 615, 632.
[556] [1956] AC 256, 264.
[557] See Salsbury v Woodland [1969] EWCA Civ 1; [1970] 1 QB 324, 346 (CA) (Harman LJ); Tito v Waddell [1975] 1 WLR 1303, 1307-8 (Ch D) (Megarry J).
[558] See Appendix C, para 314.
[559] There seems to be an exception to this proposition where the only aspect of admissibility in question is relevance—the finding of fact is then for the jury.
[560] See Appendix C, para 315.
[562] id, 610-11.
[563] (1977) 137 CLR 20.
[564] id, 30-1.
[565] ibid.
[566] At its widest it would mean any evidence adverse to the accused’s case.
[567] Wigmore on Evidence, para 1385.
[568] See Appendix C, para 320.
[569] Cross on Evidence, para 3.7; Phipson on Evidence, para 20; JB Matthews & GF Spear, Taylor on Evidence, 11th edn, Sweet & Maxwell, London 1920, vol 11, 375-6; SL Phipson, Best on Evidence, 12th edn, Sweet & Maxwell, London 1976, para 20.
[570] MacLennan v Hastings Transport Pty Ltd [1969] VicRp 48; [1969] VR 376.
[571] MacPherson v R [1981] HCA 46; (1981) 55 ALJR 594.
[572] See R v Bradshaw (1978) 18 SASR 83, 87 (Bray CJ).
[573] MacPherson v R [1981] HCA 46; (1981) 55 ALJR 594, 602 (Mason J); Dixon v McCarthy [1975] 1 NSWLR 617, 634; R v Bradshaw (1978) 18 SASR 83, 86.
[574] MacPherson v R [1981] HCA 46; (1981) 55 ALJR 594, 598 (Gibbs and Wilson JJ); R v Williams (1976) 14 SASR 1, 3; Collins v R (1980) 31 ALR 259, 267; R v MacPherson [1980] 1 NSWLR 612, 616.
[576] See also the Canadian Supreme Court decision of De Clercq v R (1968) 70 DLR (2d) 530.
[577] R v Hammond (1941) 28 Cr App R 84, 87.
[579] [1969] TASStRp 15; [1969] Tas SR 99.
[580] See R v Toomey [1969] TASStRp 15; [1969] Tas SR 99, 102; R v Hart (1977) 17 SASR 100, 102.
[581] (1975) 132 CLR 258.
[582] id, 263.
[583] [1946] HCA 55; (1946) 73 CLR 316, 323.
[584] The other members of the court did not refer to this dictum.
[585] [1980] AC 247.
[586] id, 256, 257.
[587] id, 263.
[588] R v Gray [1965] Qd R 373; R v Toner [1966] QWN 44.
[589] In R v Toomey [1969] TASStRp 15; [1969] Tas SR 99, the privilege was held to be not available under s 85 Evidence Act. The court did not refer to the earlier State authorities.
[590] R v Wright [1969] SASR 256.
[591] See Ex parte Whitelock; Re Mackenzie [1971] 2 NSWLR 534, 539.
[592] R v Wright (1969) SASR 256, 262 (Bray CJ), 270 (Chamberlain J), 277 (Zelling AJ); R v Monks Unreported (Tas SC) 55. See also the NSW decision of Ex parte Whitelock; Re Mackenzie [1971] 2 NSWLR 536, 539 (Meares J).
[593] R v Wright [1969] SASR 256, 264-6, 270-2, 278; R v Toomey [1969] TASStRp 15; [1969] Tas SR 99.
[595] [1965] Qd R 373, 378.
[596] [1980] AC 247.
[597] The cross-examination only goes to the accused’s credit.
[598] [1981] HCA 46; (1981) 55 ALJR 594, 602-3.
[599] id, 598.
[600] [1982] AC 476, 481, 483.
[601] See A Hutchinson, ‘Third Time Unlucky’ (1981) 131 NLJ 1126, 1127.
[602] [1981] HCA 46; (1981) 55 ALJR 594, 597.
[603] The rest of the High Court (Justices Mason, Aickin and Brennan) did not consider it necessary to expressly decide this question.
[604] id, 597.
[605] [1981] 2 All ER 193 (on appeal from the Court of Appeal of Trinidad and Tobago).
[606] [1982] HCA 67; (1982) 43 ALR 619, 629.
[607] See Appendix C, para 114.
[608] Evidence Act 1906 (WA) s 8(1)a.
[609] See Appendix C, para 7.
[610] Hoskyn v Commissioner of Police [1978] 2 All ER 36.
[611] See Appendix C, para 9.
[612] As well as parents and children of the accused.
[613] Evidence Act Amendment Act (No 2) 1983 (SA).
[614] NSW: Crimes Act 1900 s 407(2); Victoria: Crimes Act 1958 s 399(3) (comment is possible if the accused made an unsworn statement): Northern Territory: Evidence Act s 9(3).
[615] SA (accused only): Evidence Act 1929 s 1811; WA: Evidence Act 1906 s 8(1)(c): Tasmania: Evidence Act 1910 s 85(1)(c). There is no reference to comment by the judge. The common law applies, allowing comment—R v Dutton (1979) 21 SASR 356, 380. This is also the position in England.
[616] Queensland and the Christmas and Cocos (Keeling) Islands. See R v Young [1969] Qd R 417.
[617] R v Rhodes [1899] 1 QB 77, 83.
[619] R v Bathurst [1968] 2 QB 99, 107-8; R v Mutch [1973] 1 All ER 178, 182; R v Sparrow [1973] 2 All ER 129. A comment would be strong, for example, where the onus of proof of a defence was on the accused.
[620] R v Templeton [1922] QSR 165; R v Lynch [1919] SALawRp 3; (1919) SALR 325; Bridge v R [1964] HCA 73; (1964) 118 CLR 600, 615; R v Phillips [1967] Qd R 237, 295.
[621] (1892) 17 Cox CC 503.
[622] See Appendix C, para 6.
[623] See Appendix C, para 15-24.
[624] See Appendix C, para 17.
[625] See Appendix C, para 18.
[626] See Appendix C, para 18.
[627] See Appendix C, para 18.
[628] Queensland and Western Australia.
[629] See Appendix C, para 25-54.
[630] R v Neal [1947] ALR 616 and R v Thynne [1977] VicRp 10; [1977] VR 98, 101-3. See also R v Thomson (1977) 64 Cr App R 96.
[631] Evidence Ordinance 1971 s 60(2).
[633] (1974) 8 SASR 81 (Bray CJ, Walters and Sangster JJ).
[634] R v Hunter [1955] VicLawRp 56; [1956] VLR 31 (no limits) and R v Jacquier (1979) 20 SASR 543 (could be limited to cross-examination on particular topics).
[635] Price v Bevan (1974) 8 SASR 81 (yes) and R v Hunter [1955] VicLawRp 56; [1956] VLR 31 (no).
[636] Evidence Act 1898 (NSW), s 55; Evidence Act 1910 (Tas), s 99; Evidence Act 1906 (WA) s 22. In the NSW legislation ‘justice’ is defined to mean a ‘justice of the peace’—s 3.
[637] Law Reform Commission of NSW, Working Paper, The Course of the Trial, 1978, Sydney, 83; Simos in Glass, 182.
[638] The Queens Case (1820) 2 Brod & Bing 286.
[639] See Appendix C, para 25.
[640] (1893) 6 R 67, 70, 76; Cross on Evidence, para 10.50.
[641] Law Reform Commission of NSW, The Course of the Trial, para 17.1.
[642] WB Odgers, Pleading and Practice, 7th edn, Stevens, London, 1912, 312: Reid v Kerr [1974] 9 SASR 367, 373 (Wells J) quoting Phipson on Evidence, para 1593.
[643] See Appendix C. para 50-4.
[644] Waight & Williams, 328.
[645] (1980] 4 A Crim R 101, 111.
[647] A further option raised was the judge calling the witnesses.
[648] Bulstrode v Trimble [1970] VicRp 104; [1970] VR 840, 850.
[649] See Appendix C, para 298-309
[650] Only if the appeal court is satisfied that no substantial miscarriage of justice resulted will it not order a retrial.
[651] A Ligertwood, ‘Failure to Warn in Criminal Cases where Corroboration may be Required’ (1976) 50 ALJ 158. 159-63.
[652] [1974] HCA 48; (1974) 131 CLR 534.
[653] See Kelleher v R [1974] HCA 48; (1974) 131 CLR 534, 543 (Barwick CJ), 546 (MeTiernan J), 560-1 (Mason J), 568-9 (Jacobs J).
[654] id, 543 (Barwick CJ). Gibbs J agreed with the other members of the court in refusing to grant special leave to appeal, but for different reasons: MI Aronson, NS Reaburn & MS Weinberg, Litigation: Evidence and Procedure, 3rd edn, Butterworths, Sydney, 1982, 615) have argued that the case was, for the purpose of corroboration rules, an identification case not a rape case. It is generally accepted that a corroboration warning is only required as a matter of practice in identification cases; see below para 427. The better view, it is submitted, is that Kelleher was both a sexual and an identification case and that it is authority for the view that a warning is only required as a matter of practice in both types of case.
[655] See Davies v DPP [1954] AC 378.
[656] Criminal Code 1889 (Qld) s 632
[657] R v Teitler [1959] VicRp 54; [1959] VR 321, 330. Note discussion in Kelleher v R [1974] HCA 48; (1974) 131 CLR 534, 557-60. 567-8 and 555.
[659] R v Ling [1981] TASRp 22; (1982) 6 A Crim R 429, 449-51 (Tas CCA); R v Ready and Manning [1942] VLR 95.
[660] R v Perry [1970] 2 NSWR 501, 504; R v Lynch [1971] 2 NSWLR 136, 137.
[661] See Appendix C, para 302-3.
[662] Criminal Code (Tas) s 136.
[663] See Criminal Code: (WA) s 185, 187-8, 191-2; (Qld) s 212, 215-6, 218. See Crimes Act: (Vic) s 51, 54-5 and 59; (NSW): s 81B. See Criminal Law Consolidation Amendment Act: (SA) s 63-4. 74; (NT) s 14.
[664] Criminal Code (Qld) s 212, 215-6, 218.
[665] Criminal Code (Tas) s 136.
[666] Crimes Act (Sexual Offences) 1980 (Vic) s 62(3).
[667] Crimes (Sexual Assaults) Amendment Act 1981 (NSW).
[668] Cross on Evidence. para 9.26, 9.27. See Appendix C, para 302.
[669] See Appendix C, para 304.
[670] ibid.
[671] Evidence Act 1929 (SA) s 13(2); Evidence Act 1910 (Tas) s 128(2); Evidence Act 1958 (Vic) s 23(2); Evidence Act 1958 (Vic) s 23(2); Evidence Act 1906 (WA) s 101(2); Evidence Ordinance 1971 (ACT) s 64(3); Evidence Act (NT) s 9C.
[672] See Crimes Act 1900 (NSW) s 418; Child Welfare Act 1939 (NSW) s 131.
[673] Evidence Act 1977 (Qld) s 9(2).
[674] Cross on Evidence, para 9.28.
[675] Hargan v R [1919] HCA 45; (1919) 27 CLR 13.
[676] In concluding that a warning should have been given, Barton J placed considerable emphasis on the particular circumstances of the case: the fact that the child was only fourteen and a half years and that there was no corroborative evidence: Hargan v R [1919] HCA 45; (1919) 27 CLR 13. He said nothing about whether a warning was required in all cases where the witness was a child. Isaacs J, on the other hand, dealt with the case on the basis that it involved a sexual crime: id, 23-4. Rich J gave no reasons for his decision.
[677] Hicks v R [1920] HCA 26; (1920) 28 CLR 36.
[678] Paine v R [1974] Tas SR 117.
[679] It is a selection of material referred to in the Research Papers. Reference has not been made in the above examples to the law of Christmas and the Cocos (Keeling) Islands. This is because litigation in those Territories is not large in volume, at least in comparison with other federal courts and the Commission is not aware of any Federal Court having heard cases there. However, some Federal Court judges are judges of the Supreme Courts of those Territories and when they sit in those Territories they have comprehensive legislation to apply—ie the Singapore Evidence Ordinance which was developed from Stephen’s Indian Evidence Act. It differs significantly from the law in the rest of Australia. Some of these differences are referred to in Appendix C. They arise in many topics—for example relevance, hearsay, privilege (including legal professional, self-incrimination, judge’s reasons) and other matters.
[680] See Appendix C, para 1.
[681] See Appendix C, para 15-8.
[682] See Appendix C, para 41-54.
[683] See Appendix C, para 262-275.
213. Opportunity to Simplify and Organise. A comprehensive and uniform Evidence Act would provide an opportunity to simplify the law. An examination of the leading texts,[1] the morass of legislation and the discussion of the law in this Report[2] demonstrates the existence of a complex body of law. By comparison the draft legislation is, it is believed, a significant improvement. A comprehensive Act also gives the opportunity to provide a rational arrangement of rules based on a sound policy framework. This, if achieved, would lead to a clearer understanding of the law, its principle and policies and to greater ease of application.[3] Under the US Federal Rules of Evidence 1975, the experience has been that lawyers have developed a better knowledge and understanding of the law, there is less argument and the judiciary are more confident in their handling of evidentiary problems.[4] A problem with the existing law in Australia and its treatment by the courts and commentators is that it appears to be a miscellaneous collection of rules developed case by case and without any foundation in principle. One commentator has remarked
Perhaps we should not be too easily conceding that there is a ‘law of evidence’. Evidence is a gathering together of a miscellany of rules which have little common pedigree’.[5]
A result is confusion and lack of knowledge and understanding of the laws of evidence.[6] The legislation proposed is organised in a rational and coherent way which should lead to a better understanding of the laws of evidence and the way they operate and interrelate.
214. Removing Uncertainties. The Commission’s review of the existing law has revealed an unacceptable degree of uncertainty in all areas of the laws of evidence.[7] This has undesirable consequences for the ease and predictability of operation of the existing law. The uncertainties exist principally in the common law—the law as stated by the courts. These uncertainties can be significantly reduced[8] but only by comprehensive legislation.[9]
215. Accessibility. The restatement of the laws of evidence in comprehensive legislation provides an opportunity to make the law in this area more readily accessible—a matter of special importance as unanticipated evidence questions arise in trials and there is often little opportunity for research. The US Federal Rules of Evidence have conferred such a benefit:
no matter how well a lawyer prepares, in many situations points of evidence law will arise during trial and will not have been anticipated. When that happens, the lawyer needs to be able to research the point quickly, or at least to fall back on a body of law that is readily accessible. The Federal Rules of Evidence is such a body of law. The fact that a lawyer can have the Rules present in the courtroom means that often he or she need not rely on ten or more volumes of the Wigmore treatise as authority for an evidence point. Easy access to ‘the law’ is an enormous advantage of the Rules. Judges obviously are similarly advantaged. Some have referred to this benefit as ‘the pocket bible argument’.[10]
216. Equality before the Law. There are differences in the resources available to litigants and the resources available to their lawyers This leads inevitably to inequalities in the operation of out- legal system. These will continue to exist to some extent even where a complex body of law is simplified in a legislative restatement. A restatement, however, makes the law more accessible and thus can significantly reduce inequalities in the system.[11]
217. Another source of inequality before the law derives from the different approaches taken by different judges in determining the admissibility of evidence. Reference should be made to the discussion on areas of uncertainty in the common law.[12] The examples given demonstrate that judges have developed their own sets of rules Further, judges vary considerably in their approach to admissibility problems—some will bring pressure to bear on parties to discourage reliance on the technicalities of existing laws of evidence, others will not, so the admissibility of evidence can depend very much on the lottery of the judge appointed to try the case. A comprehensive restatement can reduce the inequality before the law inherent in such a situation. This is of considerable symbolic importance:
Litigants, rich or poor, wise or unwise, represented by retained counsel or by appointed lawyers, all will know that the same evidence rules apply to each of them. This is no small step in the march toward equal justice.[13]
218. The Context. Although the Terms of Reference do not require the Commission to consider and advance proposals for the laws of evidence applied in State Courts or to consider the laws of evidence in the context of tribunals, under the Law Reform Commission Act 1973, the Commission is required, among other things to consider proposals for uniformity between laws of the Territories and laws of the States. Evidence law is an area of the law where uniformity throughout Australia would be desirable.[14] One way to achieve that would be to enact a comprehensive uniform law for federal and territory Courts, monitor its operation and then use it as a basis to develop a uniform Australian law. This has been the experience in the United States of America. The issue will be discussed, however, in the context of the courts referred to in the terms of reference—the federal and Territory courts.
219. Dangers and Difficulties for Federal Trial System. There are dangers for a trial system in which the courts apply different laws of evidence depending upon where they sit.
• Equal Application of the Law. The outcome of a case can sometimes depend on the application of the laws of evidence. It is possible, therefore, that a case brought in a federal court in one State or Territory under legislation such as the Trade Practices Act or the Family Law Act could have a different result if brought in a different State or Territory. The analysis of the law in the previous chapter demonstrates a remarkable number of significant differences. Vital evidence necessary to a party’s case might be admissible in some States or Territories but not in others. The federal courts hear proceedings brought under national legislation. It is undesirable that the operation of such national substantive law should vary according to the place of the hearing. A litigant and the general community would be entitled to feel that there was something wrong with the trial system in federal courts under which a litigant could lose a case relating to the same law and the same facts in one State because of the laws of evidence of that State but could win that same case in another State.
The danger that the outcome of cases will depend on where the case is heard is very real. As the work of the federal courts increases, the danger will increase. One of the Special Prosecutors appointed to investigate offences recently stated:
Commonwealth legislation sets out a code of substantive law that is the same throughout the whole of the Commonwealth. However, the procedural law and rules of evidence to be applied in Commonwealth proceedings varies with the State or Territory in which the action is heard. This does not ensure that all persons are treated equally before the ‘Commonwealth law’ and may, at times, lead to jurisdiction shopping. The changes that can thus occur when one crosses a State boundary are confusing for Commonwealth law enforcers and makes their job all the more difficult and technical. For these reasons I believe there is an urgent need for the Commonwealth to enact at the very least a comprehensive Evidence Act applicable to all Commonwealth proceedings.[15]
• Different Laws for a Particular Trial. It is possible, in the Federal Court and the Family Court, using transfer arrangements, for the hearing of the evidence of witnesses to take place in different States and Territories. Occasions will arise where it is convenient to do so. It is possible that the whole or part of the evidence of a particular witness would be inadmissible in one State or Territory but admissible in another. Similar situations could arise on appeals which take place in a State or Territory other than that in which the original hearing took place in relation to further evidence on the appeal.
• Discouraging Transfer of Proceedings. The differences in the law could discourage the transfer of proceedings from a federal court sitting in one State to a federal court sitting in another State when other considerations would make transfer the most convenient and least costly course. Parties need to spend time and costs considering the evidence laws of the proposed venue before deciding whether to seek or agree to a change of venue.
• ‘Forum Shopping’ in Federal Courts.[16] In federal courts a litigant can commence proceeding’s in the State or Territory of his choice. Unless the court removes the case to another jurisdiction, the laws of evidence which will govern the proceedings are thus in the choice of the plaintiff or prosecutor—he has freedom to forum shop. Although cases are sometimes transferred from one federal court registry to another the circumstances in which this will be done have not been fully elaborated, so that the matter is very much in the discretion of the particular judge to whom application for transfer is made. In the Federal Court, the result in a case commenced in the Perth, Brisbane or Sydney Registry, for example, might well be determined by whether, as a matter of administrative convenience, the Court chose to hear the case in the location of the registry or at another location. A de facto advantage is likely to be given to large corporations and government institutions which have a presence throughout Australia, and can mount a more convincing argument than an individual could for choosing what seemed on evidentiary considerations the most advantageous forum.
• Practical Difficulties for Judges and Practitioners. Where a federal judge and practitioners are involved in a trial in a State or Territory other than their home State or Territory and issues arise about the application of the laws of evidence, they should consider the application of the law of that State or Territory, which, for most, will be unfamiliar. The Trade Practices Commission has commented to the Commission that it mounts cases against defendants from various States and, on occasions, parties to the proceedings are represented by counsel from various jurisdictions. In its experience it is common for proceedings to commence with discussion about which evidentiary and procedural rules are to apply and some confusion arises with counsel unfamiliar with the local rules. A device commonly employed is to admit the evidence subject to objection and to rule on the evidence at the conclusion of the case. This, however, creates uncertainty for the parties and raises the risk of time being wasted because evidence is later ruled inadmissible.[17] The Trade Practices Commission considers that a uniform set of rules would simplify case preparation and presentation.[18] As the work of the federal courts increases difficulties will increase—there are, after all, nine different laws of evidence in the States, the Northern Territory, the Australian Capital Territory and Norfolk Island.
220. Problems for the Business Community.[19] The laws of evidence also have an impact in the business community. The complex and differing legislation affecting the admissibility of business records, computers, and reproductions, for example, has the effect that corporations which operate throughout Australia must, in setting up microfilming and computer systems and record-keeping systems, devise systems which can produce records which are admissible under any of the diverse legislative provisions. The undesirability of this was recognised by the Standing Committee of Attorneys’ General, when it decided that there should be uniform legislation facilitating the admission of microfilm, prints from microfilm and reproductions generally. The existing legislation does not achieve uniformity. The Federal provisions[20] for the admission of business records provide a partial answer in that the definition of ‘documents’ is wide enough to cover records kept on any medium. Further, if business-records are not admitted under the Commonwealth legislation, the parties must fall back upon State and Territory legislation.
221. Problems with the Judiciary Art Provisions. Several issues have been identified:
• The Common Law. The federal courts apply the common law rules of evidence[21] except where the statutory law of the State or Territory where the case is heard modifies it. It is a moot point, however, whether the basis upon which the common law rules of evidence apply is that:
(a) section 79 of the Judiciary Act[22] makes the common law rules of evidence apply by its reference to—the ‘laws of each State or Territory’;[23] the ‘laws relating to’ evidence of each State or Territory; the ‘laws of the Commonwealth’; both the laws of the States and Territories and also the Commonwealth.
(b) section 80 of the Judiciary Act makes ‘the common law of England’ apply so far as the laws of the Commonwealth are not applicable;[24] or
(c) the common law itself obliges these courts to recognise and apply the common law rules of evidence.[25]
Such issues may become important if a federal judge is faced with a conflict between decisions on the common law rules of evidence of, for example, different State Courts—does the federal judge seek to ascertain the common law operating throughout Australia, or is there for the purposes of the laws of evidence a State common law? The view that has most support is that there is no separate State or federal common law.[26] On the other hand, some cases have taken what appears to be a State common law approach. The Federal Court in South Australia followed the South Australian ‘practice’ that the court has an unfettered discretion to decide whether a defendant should be put to his election as to whether or not to adduce evidence before submitting no case to answer in civil proceedings.[27] This is to be contrasted with the law in other States that as a general rule a defendant should be put to his election.[28] The approach that there is a separate common law for each State and Territory appears to be consistent with the view expressed by Justice Jacobs in the High Court of Australia that a federal judge in choosing the law to be applied should consider:
the question ... as it would arise in a case or matter arising wholly under the law of that State ...[29]
On this view the trial judge must apply the law of the State or Territory in which he is sitting as if he were a judge of that State or Territory—so he would apply a decision of the State Court of Appeal in preference to a decision of a single judge or appeal bench of his own court. In the absence of authority of the Full High Court on the point in question a federal judge may have a number of options open to him:
(a) Does he apply the common law as declared and interpreted in the State or Territory in which he is sitting, ignoring or regarding as persuasive only decisions of other federal, State or Territory courts?
(b) Does he try to decide what the common law of Australia is oil the particular topic and in doing so consider all relevant Australian. and English decisions?
(c) When there is a conflict between decisions of a federal court and State or Territory court decisions, which decision should he adopt’? The general rules of precedent will help him only where the Federal Court decision is that of a Full Court of the Federal or Family Court and the case is before a lower court in the relevant hierarchy. If, however, a State Full Court disagrees with the decision of the Full Federal or Family Court in a later decision, which decision should the federal trial judge apply’? The Commission is not aware of any authorities dealing with the problem of conflict between decisions of federal and State and Territory courts in the laws of evidence.[30]
Difficult legal and jurisprudential points are raised. Unfortunately their resolution would involve considerable expense for litigants. The difficulties would be reduced by abandoning the Judiciary Act approach and by giving federal courts a comprehensive set of statutory rules of evidence.
• Legislation. Concern has been expressed about uncertainty in the operation of the Federal and State and Territory legislation relating to business records.[31] The Commission understands that in the Family Court the view has been taken that the Commonwealth provision covers the field,[32] however, the argument that the Commonwealth business records legislation prevents the operation of the State legislation has been rejected in the Federal Court.[33] Another issue arises from the decision of Justice Windeyer sitting as a single judge of the High Court in Ferguson v Union Steamship Conf NZ.[34] Section 79 of the Judiciary Act applies ‘except as otherwise provided ... by the laws of the Commonwealth’. Justice Windeyer held that s 21 of the now repealed High Court Procedure Act 1903 did ‘provide otherwise’ in that it required evidence to be given orally in open court and that as a result documentary evidence could not be received in the High Court under State laws. The business records provisions since included in the Commonwealth Evidence Act 1905 ameliorate the problem to the extent that they allow documentary evidence to be given. However, should the legislation not be regarded as exhaustive, there may be situations where documentary evidence which would be admissible under the State or Territory laws would not be admissible under the Commonwealth Evidence Act.
The question arises whether, notwithstanding the repeal of the High Court Procedure Act, Ferguson’s case still applies in the High Court because of s 77H of the Judiciary Act[35] and in the Family Court because of Regulation 108.[36] In the Family Court these provisions require evidence to be given orally in open court. It is arguable that ‘oral’ merely distinguishes a witness’ presentation from affidavit presentation but is not intended to exclude other forms of evidence, such as production of a document containing hearsay which is admissible under hearsay legislation.[37] As to the Federal Court the position seems to have been covered by s 47(6) of the Federal Court of Australia Act 1976.[38]
222. Uniform Laws for Federal Courts and Territory Courts? There are advantages in having the same laws of evidence in Territory courts and federal courts. It would reduce the number of different laws of evidence already in existence and would assist the judges of Territory Supreme Courts who are also Federal Court judges. It could be argued, however, that it would preferable to have uniformity between the laws of evidence applying in New South Wales and those applying in the Australian Capital Territory; that similar litigation is determined in the general jurisdiction of the Supreme Courts and Courts of Petty Sessions of New South Wales and the Australian Capital Territory and they should be determined by similar rules of evidence. In addition, of course, there may be some practical advantages to practitioners in having uniform legislation in the Australian Capital Territory and New South Wales. The same argument may also apply so far as Norfolk Island is concerned. To achieve such uniformity, one option would be to repeal the law of evidence applying to those Territories in favour of that of New South Wales. This would have the unfortunate effect of removing some valuable reforms to the laws of evidence contained in the Australian Capital Territory Evidence Ordinance. If uniformity is accepted as a desirable goal, it would seem preferable to have uniform rules applying in federal courts and courts of the Territories except where some peculiar feature (arising, for example, from the special jurisdictions of courts) requires a departure from rules appropriate for general civil and criminal trials. Such departures would be most likely to occur, if anywhere, in rules to be applied in the Family Court and the Federal Court.
223. A Burden. The creation of a new set of rules of evidence would create a burden for those legal practitioners who practice in federal, State and Territory courts. They would have to learn new laws of evidence as well as those with which they may have grown familiar in their respective State or Territory. Against this, however, it must be remembered that those who practise in the High Court, the Federal Court or the Family Court may, at different times, have to operate under the laws of evidence of six States and those of the Northern Territory, Norfolk Island and the Australian Capital Territory. A uniform comprehensive Act would give lawyers the benefit of uniform rules when they practise outside their respective home State or Territory. In the long term, it may be an advantage for all concerned—particularly the judiciary.[39]
224. Bankruptcy. A consequence of a comprehensive law of evidence applying in federal courts only could be that the outcome in bankruptcy cases could differ depending upon whether they were heard before a Federal Court or a State court exercising Federal jurisdiction (as happens in Tasmania and, on occasions, South Australia). However, a comprehensive law of evidence in the Federal Court would reduce the number of different laws of evidence being applied in bankruptcy proceedings at the moment. The solution may lie in having the Federal Court assume jurisdiction throughout Australia[40] in bankruptcy matters or in extending any comprehensive law of evidence to litigation under the Bankruptcy Act.
225. Forum Shopping by Prosecution. The creation of a comprehensive evidence statute to operate in federal courts could give rise to forum shopping by the prosecution—for example, as between the Federal Court or a State Court of Petty Sessions. It is thought that this is unlikely to occur. If, however, it is thought to be a matter for concern, it could be handled by extending the application of any legislation that is enacted to the trial of federal offences.
226. The High Court as a Uniting Force. It may be argued that, so far as the common law is concerned, the High Court will resolve differences that exist or may emerge in the future and that it is not necessary, therefore, to legislate in those areas dealt with by the common law. It is true that in some areas, decisions of the High Court have resolved questions of doubt. The record, however, on evidentiary questions is not encouraging. The court has on occasions not only failed to resolve doubts but has also created uncertainty in important areas.[41] Even where they agree on the end result Justices of the High Court do not always agree in their interpretation and formulation of the law. This is especially troublesome in the area of evidence because the rules of evidence provide the guiding rules for the conduct of litigation:
The High Court ... continues to present multiple judgments, often differing from each other in shades of nuance and emphasis. This makes the task of the scholar and teacher a rich and rewarding one. On the other hand it makes the task of the practitioner and judge exquisitely difficult. Above all it renders life unpredictable for litigants.[42]
Reference has been made elsewhere to the differing views expressed and the uncertainty flowing from decisions in areas such as:
• Hearsay Evidence[43]—the admissibility of evidence of out-of-court identifications.
• Character Evidence[44]—the admissibility of evidence of alleged prior misconduct of the accused.
• Identification Evidence[45]—The approach to be taken to the admissibility of evidence of identification made from photographs while the accused was in custody.
• Privilege[46]—The content of a client’s legal privilege and litigation related privileges.
• Illegally Obtained Evidence.[47] In another critical area of the law, the admissibility of illegally obtained evidence, doubts remain about the operation of the discretion formulated in Banning v Cross[48] in relation to other discretions applying to confessions despite the opportunity to deal with them in Cleland v R.[49]
A major difficulty in achieving uniformity in the common law through decisions of appellate courts is that an appropriate case must go on appeal to such a court. This will take time and may in fact never occur.
227. Ossification of the Law. Critics of the idea of comprehensive uniform legislation often argue that adoption of such an approach would stop the law developing.[50] The argument assumes that the law in its present form is able to develop whereas a comprehensive uniform Act would not be. These assumptions may be tested so far as evidence law is concerned.
• Ability of law to develop. It is true that the courts developed the common law in past centuries. In more recent times however, reform by judicial decision has been severely limited. There are some exceptions—such as the law of negligence. In the area of evidence law, the normal approach, however, is to say that
‘legislation is needed in order to modify the created edifice of the law of evidence’.[51]
The High Court has on occasions attempted to develop the law where uncertainties have existed—eg, Crown privilege, legal professional privilege, similar fact evidence—and has developed new principles—eg, the Bunning v Cross discretion. The occasions, however, are rare—they depend on a suitable case being taken through the court hierarchy to the High Court. Further, the decisions, once given, have often created further problems.[52] The opportunity for development decreases, of course, as we proceed down the judicial hierarchy. The doctrine of precedent has prevented more significant development of the law by the court system.[53] It has prevented the rationalisation of rules such as the hearsay rule and keeps the bulk of the common law rules in a straitjacket. It has been unable to modify the law to cope with modern technology. It is the inability of the common law to develop that has led to intervention by legislation in a number of areas and explains the many references made to law reform bodies in most common law countries. The courts have not been able to develop the law.
• Legislation will prevent development. The doctrine of precedent can have an ossifying effect on the operation of any new legislation—as it does on the present law. But a wrong direction in the interpretation of legislation is more likely to result in fresh legislative intervention than a wrong direction in the common law. The legislation produced in this report is designed to have sufficient flexibility to enable the courts to develop the law further. In fact courts will find they have greater freedom than they have at present in their application of the rules of evidence in particular cases.[54] It is also proposed that any legislation enacted be monitored. This would require a body to take on the role of receiving information from the judiciary, practitioners and the public about any problems that might require attention.
228. Simplification not Possible. Looking at the United States experience, it may be argued that the advantages of a restatement of the law in a comprehensive Act are soon lost. A substantial body of case law has developed in the nine years the US Federal Rules have operated and commentaries on them run to several large volumes. In practice, however, the advantages of ease of access and application and of better knowledge and understanding remain. In trials, the rules are referred to first, not the case law and commentaries. In most cases a reading of the rules will resolve the issue. The party facing an unfavourable ruling may refer to the case law, but it is left to him.[55] There is no reason to believe that this approach would not be taken in our legal system.
229. Legislate in Selected Areas. A view sometimes expressed is that some areas of evidence should be the subject of legislation but some should not.[56] This view assumes that particular rules of evidence have a discrete operation and can be dealt with satisfactorily in isolation. The Commission has found this is not so:
... more perhaps, than any other subject, the whole of the law of evidence consists of mutually articulated branches, each of them linked to or divided logically from the other. The coherence with which one branch is defined is a condition of the coherence of the others.[57]
All exclusionary rules which are concerned in part with the probative value of evidence—for example, hearsay. opinion, character—inter-relate with each other and with the rules relating to relevance, corroboration and discretions to exclude. In considering rules like the hearsay rule it is also necessary to consider discovery, privilege, the questioning of witnesses on prior statements, the refreshing of memory, complaints and so on. The competence and compellability of witnesses and privilege cannot be considered in isolation. The law on judicial notice, hearsay and opinion evidence inter-relate. Repeatedly it was found, in preparing proposals on what are normally regarded as discrete topics, that no concluded view could be expressed until other related topics had been considered. A comprehensive reform such as that adopted in the United States is to be preferred to a complicated concoction of miscellaneous renovations and additions to the existing unwieldy body of evidence law.
230. Comprehensive and Uniform Law. The enactment of a comprehensive uniform law of evidence for Federal and Territory courts is highly desirable. It is unacceptable as a matter of principle to have in the one polity, the Commonwealth, differing rules that may lead to different results in the application of national legislation where this is the result of the irrelevant factor of where a case is commenced. The disadvantages of the present system are considerable. The arguments against such an approach are not compelling. Some of them do not bear close scrutiny. Others can be met relatively simply. In both the short and long term, the arguments clearly favour a uniform and comprehensive law. The case is also supported by the deficiencies in the content of evidence law. These deficiencies are addressed in the chapter that follows.
[1] JA Gobbo, D Byrne & JD Heydon, Cross on Evidence, 2nd Aust edn, Butterworths. Sydney, 1979; JH Buzzard, R May & MN Howard, Phipson on Evidence, 12th edn, Sweet & Maxwell, London, 1976; JH Wigmore, A Treatise on the Anglo-American System of Evidence, 3rd edn. Little, Brown & Co, Boston, 1940; MI Aronson, NS Reaburn & MS Weinberg, Litigation: Evidence and Procedure, 3rd edn, Butterworths, Sydney, 1982; PK Waight & CR Williams, Cases and Materials on Evidence, Law Book Co, Sydney, 1980.
[2] See ch 4, Appendix C and the Index.
[3] The experience of code countries such as France and Germany is that the law is easier to use when codified: FH Lawson, Selected Essays, vol 1, Many Laws (European Studies in Law v 4) North Holland Publishing, Amsterdam, 1977, 48 similarly with Australian codifications.
[4] See Transcript of Conference on Federal Rules of Evidence, held at Federal Judicial Centre, Washington DC (6-7 October 1983) 6-9, 34, 84, 87, 158, 198; SA Saltzburg, ‘The Federal Rules of Evidence and the Quality of Practice in Federal Courts’ (1978) 27 Clev St L. Rev 173, 185-6, 188.
[5] D Byrne. QC, Law Council of Australia, Submission (23 March 1981) 1.
[6] Reference should be made to the material on differences and uncertainty. Examples of misunderstanding continue to arise in discussion of the law—the suggestion that lay opinion evidence is excluded because it is irrelevant not because it is opinion evidence; seeing exclusionary rules as rules prescribing methods of proof: ‘the relationship’ between relevance and the exclusionary rules—the view that if evidence does not come within a rule of admissibility, it is not admissible and the confusion about whether the hearsay rule and legislation is relevant to the admissibility of computer evidence or must be satisfied before such evidence is admissible; the view that in the absence of an opportunity to cross-examine interviewers, evidence of their statements is hearsay (see Mobil Oil Corp v Registrar of Trade Marks [1984] VicRp 3; [1984] VR 25, 26-7).
[7] See ch 4, Appendix C and Index.
[8] A result of the US Federal Rules has been a reduction in uncertainty—see discussion and Transcript of the Conference on Federal Rules of Evidence (1983); Saltzburg, 187.
[9] The term ‘code’ is not used to describe the legislation. The term tends to be interpreted as meaning comprehensive legislation expressed in broad language like some civil codes. This is not an accurate description. Also, the legislation in some areas does not attempt an exhaustive statement—eg, the rules relating to the questioning of witnesses. The term could be used: Lawson, D Tallon, ‘Codification and Consolidation of the Law at the Present Time’ (1979) 14 Israel L Rev 1; KL Chasse ‘The Meaning of Codification’ (1976) 35 Crim Rep 178: LG Scarman, ‘Codification and Judges-made Law: A Problem of Co-existence’ (1967) 42 Ind LJ 355.
[10] Saltzburg, 184.
[11] Australian Law Reform Commission, Report No 11, Unfair Publication: Defamation and Privacy, AGPS, Canberra, 1978.
[12] See ch 4 and Appendix C.
[13] Saltzburg. 190.
[14] For a recent discussion of the merits of uniform laws, see TW Mapp, ‘Law Reform in Canada: The Impact of the Provincial Law Reform Agencies on Uniformity’ (1983) 7 Dalhousie LJ 277. Evidence law is codified in a number of former British colonies: India, Pakistan, Burma, Ceylon, Grenada, Turks & Caicos Islands, Kenya, Nigeria, Uganda (based on Stephen’s Indian Evidence Act 1872—similar codes apply in two Australian Territories, Christmas Island and the Cocos (Keeling) Islands). See also GD Nokes, ‘Codification of the Law of Evidence in Common Law Jurisdictions’ (1956) 5 Int & Comp LQ 347. Elsewhere, note the extensive rules enacted in the United States of America at State and federal levels and the rules presently under consideration in Canada.
[15] Office of the Special Prosecutor, Annual Report of the Special Prosecutor, 1982-83 (Robert Frank Redlich) AGPS. Canberra, 1983. Note reference at 143 to differences in evidence law affecting the choice of the forum.
[16] M Pryles & P Hanks, Federal Conflicts of Laws, Butterworths, Sydney, 1974, 194-5.
[17] A ‘waiver’ of the rules is a technique frequently employed in civil non-jury trials.
[18] Trade Practices Commission, Submission (21 August 1981) 121.
[19] cf Mapp, 278.
[20] Evidence Act 1905 (Cth) s 7Aff.
[21] eg Trade Practices Commission v Nicholas Enterprises Pty Ltd [1979] FCA 51; (1979) 26 ALR 609 (standard of proof); Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1, and Grant v Downes [1976] HCA 63; (1976) 135 CLR 674 (privilege cases): Sorgenfie v R (1981) 51 FLR 147 (unsworn statements).
[22] Judiciary Act 1903 (Cth).
79. The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.
[23] J Quick & LE Groom. The Judicial Power of the Commonwealth, Law Book Co, Sydney, 1904, 206; Deputy Federal Commissioner of Taxation v Brown [1958] HCA 2; (1958) 100 CLR 32, 39; Musgrave v The Commonwealth [1936] HCA 80; (1937) 57 CLR 514, 531-2 (Latham CJ); Pedersen v Young [1964] HCA 28; (1964) 110 CLR 162, 169-70 (Windeyer J); contra PD Phillips, ‘Choice of Law in Federal Jurisdiction’ (1961) 3 MUL Rev 170, 195—but note the distinction drawn in s 80 between ‘statutes’ and ‘laws’.
[24] R v Oregon: ex parte Oregan [1957] HCA 18; (1957) 97 CLR 323, 330-1; PE Nygh, Conflict of Laws in Australia, 4th edn, Butterworths, Sydney, 1984, 9-10. In Musgrave v The Commonwealth [1936] HCA 80; (1937) 57 CLR 514, Dixon and Rich JJ rely on both sections. What is meant by the ‘common law of England’ is not clear.
[25] O Dixon, ‘The Common Last as an Ultimate Constitutional Foundation’ (1957) 31 ALJ 240; R v Kidman [1915] HCA 58; (1915) 20 CLR 425: I Renard, ‘Australian Inter-State Common Law’ (1970) 4 FL Rev 87, 99-100: D Kerr, The Law of the Australian Constitution, Law Book Co, Sydney, 1925, 27.
[26] See references cited above (fn 23-5); WA Wynes, Legislative, Executive and Judicial Posters in Australia, 5th edn, Law Book Co, Sydney, 1976; WL Morison, The System of Law and Courts Governing New South Wales, Butterworths, Sydney. 1979, para 12.10; B O’Brien, ‘The Law Applicable in Federal Jurisdiction’ [1976] UNSWLawJl 8; (1976) 1 UNSWLJ 327 and Part 2 [1977] UNSWLawJl 3; (1977) 2 UNSWLJ 46; J Quick & RR Garran, The Annotated Constitution of the Australian Commonwealth, Angus & Robertson, Sydney, 1901, 786; Pryles & Hanks, ch 5. For comment see Z Cowen, ‘Diversity Jurisdiction: The Australian Experience’ (1955) 7 Res Judicatae 1, 29-30. For a contrary view see Washington v The Commonwealth of Australia [1939] NSWStRp 16; (1939) 39 SR NSW 133, 139-40 (Jordan CJ).
[27] TPC v Nicholas Enterprises Pty Ltd (1978) ATPR 40-097; note counsel for the plaintiff did not dispute the approach (17, 958).
[28] The decision was distinguished in TPC v George Weston Foods Ltd (1980) ATPR 40-150. In that case, it was common ground (although the reasons for this are not clear) that s 79 Judiciary Act did not apply to the proceedings. Davies J stated that he was ‘not bound by the practice of the Supreme Court’ (of the ACT) and he went on to consider the common law as declared in England and Australia.
[29] Miller v Miller [1978] HCA 44; (1978) 22 ALR 119. 126.
[30] It should be noted that the Federal Court is still resolving the question of the binding effect of Full Court decisions of the Federal Court upon other Full Courts of the Federal Court: eg, Wood v City of Melbourne [1979] FCA 41; (1979) 26 ALR 449; Bradley v Armstrong [1981] FCA 177; (1981) 39 ALR 118; Australian Building Construction Employees’ and Builders Labourers’ Federation v David Syme & Co Ltd [1982] FCA 43; (1982) 59 FLR 48; Davern v Messel [1983] FCA 27; (1983) 45 ALR 667. The trend appears to be that the decision will be followed, if significant, until the High Court rules otherwise.
[31] McInerney J, Submission (15 January 1981) 20-1.
[32] Bowron and Bowron [1982] FamCA 66; (1982) FLC 91-270.
[33] TPC v Allied Mills Industries Pty Ltd (1980) 48 FLR 102. The argument was rejected in the case.
[34] [1969] HCA 73; (1968) 42 ALJR 33. Windeyer J’s decision in the case was affirmed by the Full High Court [1969] HCA 73; (1969) 119 CLR 191. But none of the ,judgments on appeal adverted to this evidentiary issue.
[35] Judiciary Act 1903 (Cth):
s 77H (1) On the hearing of any matter, not being the trial of a cause, evidence maybe given by affidavit or as otherwise directed or allowed
by the High Court.
(2) At the trial of a cause, proof may be given by affidavit of the service of a document in or incidental to the proceedings in the cause or of the signature of a party to the cause or of his solicitor to such a document.
(3) The High Court may at any time, for sufficient reason and on such conditions as are just. order that particular facts may be proved by affidavit at the trial of a cause, or that the affidavit of a person may be read at the trial of a cause.
(4) Notwithstanding any order under sub-section (3), if a party to a cause desires in good faith that the maker of an affidavit (other than an affidavit referred to in sub-section (2)) proposed to be used in the cause be cross-examined with respect to the matters in the affidavit, the affidavit may not be used in the cause unless that person appears as a witness for cross-examination or the High Court, in its discretion, permits the affidavit to be used without the person so appearing.
(5) If the parties to a suit so agree and the High Court does not otherwise order, testimony at the trial of the suit may be given by affidavit.
(6) Subject to the foregoing provisions of this section, testimony at the trial of a cause shall be given orally.
[36] Family Law Regulations:
r 108 (1) In applications other than applications referred to in regulations 106 and 107, evidence may be given orally or by affidavit,
as the court directs.
(2) On the hearing of such an application, the court may, with the consent of the parties to the proceedings—
(a) dispense with such procedures and formalities as it thinks fit; and
(b) inform itself on any matter in such manner as it thinks just notwithstanding any rules of evidence to the contrary.
(3) On the hearing of such an application, the court may request any other court having jurisdiction under the Act—
(a) to take evidence from any person, including a party to the application;
(b) to report upon any such evidence; or
(c) to make recommendations with respect to the application.
(4) Where the court has been furnished with a report or recommendations under sub-regulation (3), it shall not proceed with the hearing of the application unless any person adversely affected by the report or recommendations has been served with a copy of it or service of the copy has been dispensed with.
(5) Where the court makes a request under sub-regulation (3), it may request that, if practicable, the evidence be recorded by videotape, film, sound recording or other electronic means and that the recording be transmitted to it.
[37] Family Law Regulations, r 106, 107.
[38] Federal Court of Australia Act 1976 (Cth):
s 47 (1) In a proceeding, not being the trial of a cause, testimony shall be given by affidavit or as otherwise directed or allowed by the Court or a Judge.
(2) At the trial of a cause, proof may be given by affidavit of the service of a document in or incidental to the proceedings in the cause or of the signature of a patty to the cause or of his solicitor to such a document.
(3) The Court or a Judge may at any time, for sufficient reason and on such conditions (if any) as the Court or Judge thinks necessary in the interests of justice, direct or allow proof by affidavit at the trial of a cause to such extent as the Court or Judge thinks fit.
(4) Notwithstanding any order under sub-section (3), if a party to a cause desires in good faith that the maker of an affidavit (other than an affidavit referred to in sub-section (2)) proposed to be used in the cause be cross-examined with respect to the matters in the affidavit, the affidavit may not be used in the cause unless that person appears as a witness for such cross-examination or the Court, in its discretion, permits the affidavit to be used without the person so appearing.
(5) If the parties to a cause so agree and the Court does not otherwise order, testimony at the trial of the cause may be given by affidavit.
(6) Subject to the foregoing provisions of this section and without prejudice to any other law that would, if this sub-section had not been enacted, expressly permit any testimony to be otherwise given, testimony at the trial of causes shall be given orally in court.
[39] Note also the comment of Judge Kaufman (US District Judge, Baltimore, Maryland) at the Conference on US Federal Rules of Evidence, Transcript, 158:) ‘the problem really is not that the lawyers are mixed up between the rules of Maryland and the Federal Rules but that they don’t know either and so it seems to me that if you recognise that harsh fact of life, its much better if you have one set of rules to which you can direct them’.
[40] In Western Australia, the situation is in transition. After March 1985, all bankruptcy matters are to be heard in the Federal Court. Note the conferring of jurisdiction on the Federal Court in relation to copyright offences—Copyright Act 1968 (Cth) s 132(8).
[41] See below, n 43-48.
[42] M Weinberg, ‘Recent Developments in Identification, Evidence, Confessions and Privilege’ (1983) 57 LIJ 1090, 1095.
[43] See above para 131 and Appendix C, para 84-5.
[44] See above para 165 and Appendix C. para 169, 175.
[45] See above para 127 and Appendix C, para 190.
[46] See above para 110-1 and Appendix C, para 233-5.
[47] See Appendix C, para 260-1.
[48] [1978] HCA 22; (1977) 141 CLR 54.
[49] [1982] HCA 67; (1982) 57 ALJR 15.
[50] cf discussion by PM North, ‘Codification in a Common Law System’ (1982) 46 Rubels Z 490, 492; Lawson, 47; Tallon, 8; Australian Law Reform Commission, Report No 11, Unfair Publication: Defamation and Privacy, AGPS, Canberra, 1979.
[51] Myers v DPP [1965] AC 1001, 1028, 1034 (Lord Morris of Borth-y-Gest), 1034 (Lord Hodson): Sturla v Frerria (1880) 5 App Cas 623.
[52] See above para 226 See also O’Reilly v The Commissioners of the State Bank of Victoria [1983] HCA 47; (1983) 57 ALJR 130 and criticisms of it and criticisms also of McPherson v R [1981] HCA 46; (1981) 55 ALJR 594 (voir dire and confessions) and decisions on privilege against self-incrimination and its application to non-curial proceedings by Weinberg, 1093 and SD Charles QC, ‘Legal Professional Privilege and the Protection afforded to Communications with Corporate Lawyers’, Paper presented at the Proceedings of the Inaugural Australian Seminar for Corporate Lawyers; their Role and Responsibilities (29 March 1983).
[53] Tallon, 10-1; R Cross, Precedent in English Law, 3rd edn, Oxford University Press, Oxford, 1978, 227-9; JB Weinstein, ‘Some Difficulties in Devising Rules For Determining Truth in Judicial Trials’ (1966) 66 Col L Rev 223, 227; so do anxieties about the feasibility of the exercise as voiced by, eg, AK Turner, ‘Reforms in the Law of Evidence’ [1969] NZ LJ 211.
[54] eg, reform of rules relating to judicial notice; the language of exclusionary rules; discretions to exclude: the relaxation of the rules controlling the questioning of witnesses; the language of the exclusionary rules—hearsay; secondary evidence of documents; the power in civil trials to dispense with compliance.
[55] See discussion and transcript of the Conference on US Federal Rules of Evidence (1983) 22, 86, 158; Saltzburg, 173.
[56] Turner, 211; RP Anderson, ‘A Criticism of the Evidence Code: Some Practical Considerations’ (1977) 11 UBCL Rev 163, 166.
[57] J Stone, ‘Res Gestae Reagitata’ (1939) 55 LQ Rev, 66.
231. Introduction. In the chapters that follow are collected specific criticisms that may be made of the present law of evidence. The material is not exhaustive. An examination of the material reveals substantial inadequacies in most, if not all areas. The Commission’s view is that it demonstrates a compelling case for reform. Of necessity the common law rules developed case by case, with little or no consideration of appropriate rationale. Bits and pieces of legislation have been added to the common law to cope with particular problems as they have arisen. At both a general level and a specific level, there is a strong case for reform. However, a common assertion among practitioners, magistrates and judges is—‘the system is working, what is the fuss?’ A similar reaction was found in the United States of America and Canada when attempts were made to reform the laws of evidence.[1] A frequent reaction to the Research Papers published by the Commission has been one of disbelief that the law described and analysed cannot be as complicated or as unsatisfactory as appears from these papers. Who is right—the critic of the law or the defender? The answer would seem to be that both are right.
232. The Law ‘Works’ by being Ignored. It is instructive to refer to a comment made in the 1960s on evidence proposals put forward by the Judicial Conference of the United States. Professor Degnan[2] commented:
The study impressively documents the first conclusion: that Federal Evidence Law is in a dreadful condition.Despite all this, Federal Evidence Law has worked with remarkable smoothness. The reason is not that the complexity is mastered but that it has been ignored.[3]
Similar sentiments were vigorously expressed by Professor Neil Brooks who was the Special Consultant to the Law Reform Commission of Canada on its Evidence Project:
Critics of the Code often support their praise of the present rules of evidence by pointing to the tact that hundreds of cases are being tried in Canada daily. They conclude from this that the rules must be working well. Could it be that in spite of the nonsensical distinctions upon which the rules are based, the unrealistic empirical assumptions upon which they rest, and the utterly senseless word games in which they result in the courts of appeal, the application of the rules in trial courts assists the fair, expeditious and rational resolution of disputes? Obviously not. The fallacy of the argument is that irrationality and obstructiveness are only characteristics of the rules when they are applied. The system of criminal justice functions as well as it does only because the rules of evidence are largely ignored in trial courts. It is not uncommon to sit in Provincial Courts day after day and never hear an objection to the admissibility of evidence. When an eager counsel presses an objection, trial judges, perhaps embarrassed by the charade, perhaps ignorant of the complications of the rule, but more likely sensitive to their duty to resolve the case on its merits. usually admit the evidence.[4]
It is necessary to distinguish between the law of evidence as it is set out in the law reports, statutes and text books on the one hand and the law of evidence as it is practised. It is possible for lawyers to criticise its complexities, uncertainty, impracticality, illogicality, rigidity, unfairness—its gobbledegook. It is possible to criticise ‘the lush exuberance of doctrines which bloom in the digests and the six volume treatises on evidence and the sharp quiddities of the class room’.[5] It is also possible, however, to say that the system is working in practice—in the sense that we make do. There are several reasons. Few lawyers have a detailed knowledge of the law of evidence—its complexities are not mastered but ignored. Lawyers cannot be blamed for this because the law of evidence is too complicated. Not being aware of its detail, it is possible to believe that there is not a great deal wrong with it. Not having the time to look critically at the whole of the law of evidence we see only one deficiency at a time. Not having a better alternative to consider we accept what we have. In addition, the law of evidence as practised is a drastically simplified version of the law. In preparing for trial and during the hearing `rules of thumb’ are applied, for example:
• evidence to be admissible must be relevant;
• hearsay evidence is not admissible;[6]
• do not forget to claim legal privilege;
• you cannot lead a witness in evidence-in-chief but you can lead a witness in cross-examination;
• in a criminal trial, a confession must be voluntary;
• the judge has a discretion to exclude prosecution evidence.
In preparing for trial, evidence will be discarded which does not satisfy the rules of thumb and this in turn will reduce the problems in the court room.
233. Further, at the trial, the parties often waive rules of evidence. Consider, for example the following:
• The policeman in the magistrate’s court is usually permitted simply to read his notes without going through the process of exhausting his memory or attempting to refresh his memory from them.
• In civil proceedings, parties waive the hearsay rule for commercial records, hospital records, and the hearsay and opinion rules for doctors reports. Parties also waive the requirements relating to the secondary evidence of documents to permit photocopies and prints from microfilms to be used.
• The formal proof of regulations, by-laws and proclamations is frequently ignored.
• A witness is sworn on the Bible as a matter of course. We do not check whether this is appropriate. It is left to the witness to object.
Often, too, the trial judge will try to discourage objections which are technical.
234. De Facto Reform. If this description of what happens in practice is correct, it is in itself an indictment of existing law. It suggests that it has been found that the law can only operate satisfactorily if its detail is forgotten, removed or waived. There has been a de facto reform of the law of evidence. It is a method of reform, however, that carries with it grave dangers. It arises through ignorance and omission and is not soundly based on reason or a properly considered rationale:
The rules are being changed day by day in the courtrooms, legislative halls and lawyers’ offices. The question is not should we change, but should changes take place in accordance with an acceptable rationale.[7]
Further, the problem with such an approach is that the rules lie in wait for any practitioner to use when it is to his client’s tactical advantage. Such a system will function while the practice is adhered to but will break down with potentially serious results when parties decide to play by the rules.
235. Commission’s View. The Commission is of the view that significant reforms are required in most areas. If this view is not shared, the reader is urged to study the chapters that follow where specific criticisms are considered that may warrant modification of rules. Reference should also be made to the discussion in the Commentary[8] where arguments for the abolition of certain rights are considered—in particular, the arguments for abolition of the oath, the unsworn statements by accused persons and the privilege against self-incrimination. Reference should also be made to the material in the previous Chapter and Appendix C on differences and uncertainties in the law of evidence throughout Australia. They exist in all areas and are extensive and significant. They should be removed or reduced wherever possible.
[1] N Brooks, ‘The Law Reform Commission of Canada’s Evidence Code’ (1978) 16 Osgoode Hall LJ 241; RP Anderson; ‘A Criticism of the Evidence Code: Some Practical Considerations’ (1977) 11 UBC L Rev 163, 166.
[2] Professor of Law, University of California Law School, Berkeley.
[3] RE Degnan, ‘The Law of Federal Evidence Reform’ (1962-63) 76 Harvard L Rev, 275, 276. See also EM Morgan, Some Problems of Proof under the Anglo-American System Litigation, Columbia University Press, New York, 1956, 194.
[4] Brooks, 260; see also Morgan, 194.
[5] T McCormick, ‘Tomorrow’s Law of Evidence’ (1938) 24 ABAJ 507, 508.
[6] It has been said to the Commission that in litigation most arguments on admissibility of evidence centre around the issue of relevance and hearsay. It has been suggested that arguments about relevance comprise some 75-80% of all objections.
[7] JB Weinstein, ‘Alternatives to the Present Hearsay Rules’(1968) 44 Fed Rules Decisions 375, 388.
[8] para 561, 584. 853.
236. The Law and Psychological Research. A critical question is the validity of the ‘tests’ of psychological competence that exist. We are not here concerned with the many factors that can affect the value of a witness’ evidence such as the powers of observation, the time which has elapsed between the perception of an event and its ultimate report and so on. These factors will have a bearing on the credibility of the witness and should therefore be taken into account at the stage when the weight of the testimony is to be assessed. In this chapter only those factors which might affect the ability of the witness to function as a witness will be discussed. It is proposed to consider this issue and to do so by investigating Stephen’s test—the only direct test of psychological competence—and by investigating the other indirect tests that are used—the ‘Oath’, ‘Affirmation’ and ‘Unsworn Evidence’ tests in the light of relevant psychological research.
237. Stephen’s Test. This test (which operates in Christmas Island and the Cocos (Keeling) Island) postulates that all persons shall be considered competent unless they are:
... prevented from understanding the questions put to them or from giving rational answers to those questions by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.[1]
It assumes that when a witness is being examined in court he is required to listen to the questions that are addressed to him and to respond by giving answers. The court will listen to the questions and answers, interpret both, and on the basis of its understanding and assessment of these questions and answers will try to make findings about the relevant fact. Essentially, what is involved in this process is a formal type of communication or conversation between counsel and witness.
238. Studies have been made of the process of communication and factors affecting communication. In particular the logic of conversation,[2] the function of comprehension[3] and the personal characteristics that can interfere with the mental processes of conversation have been the subject of considerable study and analysis.
239. The Logic of Conversation, Comprehension and Stephen’s Test. The above studies suggest that a witness must have the ability to:
• Comprehend the Questions Put to Him. To function in this area, he must be able to remember the questions. He must be able to analyse questions and statements and extract their meaning. Finally, he must be able to perceive and use:
― source clues; a speaker on occasions will convey meaning by stress or intonation;
― clues obtained from context; for example the meaning of ‘the chicken is ready to eat’ will vary depending on whether the statement is made in a fowl yard or a restaurant;
― clues from experience; statements will be interpreted in the light of the hearer’s knowledge of the subject-matter and experience.
• Co-operate when he Engages in the Question and Answer exchange. A witness, in common with any other participant in a conversation, must have an implicit understanding of the maxims by which the other speaker is operating. Similarly, he must have the ability to follow these maxims himself when he gives his response. It may be argued, therefore. that for a person to be considered competent for the role of witness, that person must also have, to a reasonable degree, the abilities that Grice has outlined and others have studied; he must have sufficient ability to be:
― informative; he must have the ability to be appropriately informative—neither too precise or too general otherwise the listener will be misled;
― truthful; he must have an understanding of the obligation to give truthful answers and the ability to give them;
― relevant; he must have the ability to give answers that relate to the questions;
― perspicuous; he must have the ability to express himself with sufficient clarity.
240. The requirements of competency which were laid down by Stephen in the late 19th century broadly cover these elements. Under Stephen’s test a potential witness will be considered to lack competency only if he is incapable of understanding questions or of giving rational answers to those questions. The test of a rational answer recognises the requirement that a witness have an adequate memory, the ability to give responses which are clear and to give relevant information. For example:
• Assume that a witness is asked his whereabouts on the evening of a particular crime. If he responds ‘I was in my bed, latitude 34 degrees, longitude 51 degrees, 6 inches from the south wall and 9 inches from the east wall’, then his answer would not be considered to meet the maxim that he be informative: he has not given reasonably precise information. If he continues under cross-examination to answer only in this vein,, it would be true to say he is not giving rational answers.
• Assume that the witness is asked a question which is objectively ambiguous: eg ‘Had the prisoner completed his sentence at that timer If the reply is ‘he had finished making a statement,’ then it appears that the witness is unable to make the necessary inferences from the context and this has led him to give a response which is not relevant. He has confused the meaning of ‘sentence’ as a prison term with ‘sentence’ as a set of words. Similarly, if the witness responds with a series of disjointed or incomprehensible phrases then he lacks the ability to be perspicuous and his answer will be of no benefit to the court.
• Assume that in response to questions concerning his whereabouts a witness steadfastly maintains that he was on Mars at the relevant time then this is patently not true and again his testimony is irrational.
Stephen’s test does not, however, refer to the other requirement—an understanding of the obligation to give truthful answers.
241. Finally, the empirical research on comprehension reveals that the average person is able to practice the subtle inferential activity involved in question and answer verbal activity. This is due to his memory, general knowledge, and his ability to understand the context in which the question is put. Therefore, the primary rule in Stephen’s test—that prima facie all persons are competent to testify unless they are shown to be otherwise—appears to be sound.
242. Factors which Interfere with Competency and Stephen’s Test. Stephen’s test also lists certain factors likely to interfere with the competency of a witness. These are ‘tender years’, ‘extreme old age’ and ‘disease whether of body or of mind’ or ‘any cause of the same kind.’ The next question to consider in the light of the psychological research is whether these individual characteristics might affect a person’s ability to carry out the mental processes required of a witness and whether the list is adequate.
• ‘Tender Years’. Whether a child can be a competent witness will depend, to a large extent, upon his cognitive development. Piaget, a psychologist who has worked extensively in this field, has theorised that all children pass through four stages of cognitive development, although the age at which a particular child reaches a particular stage of development varies.[4]
(a) Sensory Motor Period. The first stage is simply the sensory motor period (birth to approximately two years,) during which the child develops the ability to recognise objects. In addition, he develops his first concept of causality during this period. Specific actions, such as kicking, for example, result in specific consequences, such as making the bed bounce.[5] Later stages are the pre-operational and the concrete operations and formal operations phases.
(b) The Pre-operational period. Stage two is the pre-operational period (approximately two to seven years) during which time the child becomes increasingly capable of thinking about his world. Children at this stage can manipulate and verbally symbolise their environment. Thus a child is able to recall an object’s existence by remembering its name. Children at the pre-operational level also experience development of language skills, and the ability to understand simple concepts. They also have the ability to represent objects imaginally (eg the tree house is a ‘castle’).
However, as Hunter has written, a child at this stage has little more than an indefinite notion of ‘long ago’ and a very broad distinction between ‘earlier’ and ‘later’. He cannot refer an event to ‘the day before yesterday’ or to ‘last week’ with any probability of accuracy. Asking simple and concrete questions of a child, however, will usually get reasonable, factual responses.
Children between the ages of two and seven are more likely than older children (7 to 11) to perceive only the physical or apparent characteristics of objects and not make inferences as to their ‘real’ meaning. Some children are also subject to pressure because of their early socialisation training and orientations to adult authority and will want to please by giving the ‘correct’ answer.[6] Whatever the authority is hinting at will be accepted and confirmed as long as the child is not implicated and judged to be bad. This is because many children in this age group are afraid of authority and will defer to its power.[7]
The sort of inferences which an adult or older child makes quite naturally will not be made by the child at the pre-operational level. The child at stage two will probably not be assisted by verbal clues. For example, children at this level know that ‘some’ has a different meaning from ‘all’ but at the same time they cannot fix on a stable meaning for the word. Especially at the beginning of this stage they vacillate about what it means. This vacillation harks back to stage one when they saw no difference between words such as ‘all’ or ‘some’.[8]
The research reveals two noteworthy features: one is that if a child at this stage is asked such questions as ‘What colour was the bus?’, he will be able to give an accurate answer, for example, ‘red’; if, however, he is asked ‘did you always travel by bus or sometimes travel by bus?’ he is unlikely to truly comprehend the question and therefore give an inaccurate response. This indicates that the ability of a child at this level is limited to answering simple factual questions and he is not able to answer questions which demand inferential activity of him.
(c) The Concrete Operations Period. Stage three is the period of concrete operations (approximately 7 to 11 years) The child entering this stage is able to use simple logic to understand the nature of things and this skill continues to develop in this period. During these middle childhood years, the child is logical in dealing with concrete objects, although with very abstract ideas he will still have difficulty. He will now understand, for example, the distinction between ‘all’ and ‘some’.
A child’s perception will also be more accurate during the stage of concrete operations.[9] By this stage a child’s communication skills are more advanced. Whereas children in the pre-operational level are unable to describe the distinguishing characteristics of an object so that it can be selected from a set of similar objects, children at the level of concrete operations can do this.
The research also indicates that the child at this stage is strongly influenced by verbal clues, and would be particularly vulnerable to leading questions.[10] The danger lies, however, in the framing of the questions. Attention needs to be given to controlling the questioning rather than excluding the child witness.
(d) The Formal Operations Period. The fourth and final period is the stage of formal operations (approximately 11 to 15 years). The older child or adolescent demonstrates an understanding of abstract logic, has the ability to reason about propositions, and shows the capacity to hypothesize and solve problems in his head. Thus, the adolescent has adult-like thinking abilities with all their assets and liabilities. Questions from people in authority would be answered in the same manner as adults with the same educational level, social background etc.[11]
The research relating to children demonstrates that it is not possible to pick an age above which all children can be regarded as psychologically competent and below which all children can be regarded as psychologically incompetent. During the pre-operational stage (i.e. approximately 2-7 years) a child’s inferential activity is limited, his ability to make classifications is poor, and he has not yet mastered the concept of logic. The only questions the child is likely to understand are simple questions requiring simple, factual answers such as ‘What colour was the bus?’ It would seem therefore, that the young child’s competency to testify should be limited to answering such questions as these, and that he should not be considered competent to testify in most situations which require an understanding of more abstract notions such as time or distance. A major strength of Stephen’s test is that it defines competency in terms of the questions asked of the witness. The test properly recognises that psychological competency is not a mental state which is absolute.
• ‘Extreme Old Age’. As the ability to participate in coherent conversation is dependent, in large measure, on the individual’s memory it is necessary to establish whether the aged do in fact experience a significant decline in these processes. Studies have been conducted both on short term and long term memory. The conclusion is that age differences in short term memory functioning are not substantial.[12] As to long term memory
... age differences are often observed. Since long term memory plays an important role in mental life, this means that elderly people will perform more poorly than their younger counterparts on a variety of mental tasks.[13]
One important point which must be stressed is that any decline in memory is far from uniform among the aged population. Botwinick has said:
It seems that when differences in intellective structure are found in people of different age groups, the differences tend to centre around the ability of memory. In advanced age, to a greater extent than in earlier life, the memory ability accounts for individual differences in the degree of success on a variety of tasks. The individual differences in memory in younger people are less important. (This is not to say that memory is unimportant in determining the performance levels of young people. It does suggest that younger people may be more similar to each other in memory function and thus this function is not an important fact in determining individual differences in other abilities).[14]
The evidence indicates that the chief function which deteriorates with old age is long term memory. Usually, however, the memory for logical relationships and the ability to make complex inferences does not decline. It must be stressed that individual differences play a very important role in the cognitive processes of the aged. One person might have a significant decline in memory, whereas another shows virtually none. In addition, a small minority will suffer from senile psychosis-a mental illness which is caused by degenerative changes of the brain. This indicates that a small percentage of the aged will not have the ability to be competent witnesses. Therefore, if a legal test of psychological competency is to list relevant factors, deterioration associated with old age should be taken into account when determining the witness’ ability to testify. As the deterioration is not confined to those of ‘extreme old age’ it would be more appropriate to state simply ‘mental deterioration associated with old age.’
• ‘Disease whether of Body or of Mind’. Certain mental disorders might also affect the individual’s ability to converse. Sound memory, for example, will be disturbed in certain mental illnesses, whilst in others the ability to draw logical or conversational inferences will be impaired. In still other cases, the individual might have little grip on reality, with the result that his statements are neither true nor informative.[15] Illnesses such as schizophrenia, which are characterized by thought disorder, will render a person incompetent if the disease is so severe that he is not capable of rational conversation. Furthermore, illnesses such as senile or alcoholic psychosis will have the same effect. Amnesia, whether attributed to physical or neurotic causes, is a disorder which might also have the effect of impairing an individual’s memory to the extent that he is unable to testify competently. Accordingly if a test aimed at determining the psychological competency of a witness is to list relevant factors, it should state that illness is a factor which might in some cases render a potential witness incompetent.
A major weakness in Stephen’s test is in the use of the phrase ‘disease of the mind’ which has often been criticised in the context of the McNaghten Rules.[16] The term would be better substituted by a phrase such as ‘physical or mental illness or disorder’.
• ‘Cause of the Same Kind’. A defect in Stephen’s test is in the use of the phrase ‘cause of the same kind’. As ‘tender years’, ‘extreme old age’ and ‘disease whether of body or of mind’ do not establish a genus, it does not seem possible to give any meaning to ‘cause of the same kind’. As incompetency due to mental retardation would not come within the first three categories it would not be included in Stephen’s test. Nor would incompetency arising from a disability caused by an injury. This is because neither of these disabilities is classified as a disease. The test was first formulated in the 19th century, and since that time industrial, automobile and rail accidents have become common place and the injuries thereby sustained are significant causes of brain damage.[17] Amnesia can be caused by such an injury to the head.[18] Thus Stephen’s test would be improved by deleting the final words -’of the same kind’—and by adding mental retardation and injury to the list of factors which might affect the competency of a witness. It is questionable, however, whether an attempt should be made to list factors.
243. The Oath as a Test of Competence. The requirements of the oath, indirectly involve a test of psychological competency.[19]
• Children—The Oath Test. A child may be sworn if the court is satisfied on strict examination that the child possesses a ‘sufficient knowledge’ of the nature and consequences of an oath.[20] Although it is sound to formulate the test in terms of understanding rather than age, the test is still far from satisfactory. The common law test outlined here is essentially one of moral and religious understanding. The test does not appear to meet directly the real issues of psychological competency. Factors such as memory, the ability to make inferences and the capacity to be appropriately informative and relevant are not considered. Only the criterion that the witness should have the capacity to be truthful is tested by the common law formula. The capacity to understand which information is required, extract it from other stored information and express it clearly, is not tested as it would be if the test were framed in terms of cognitive development.
It might be argued, however, that this may not be as unsatisfactory as it appears at first sight. The child’s understanding of the nature of a lie depends upon his cognitive development. If a child has the ability to grasp the concept of dishonesty, then it is likely that he has acquired the other characteristics of the concrete operations stage (approximately 7-11). It might be argued, therefore, that although indirect, the test of whether the child understands the nature and consequences of the oath is adequate to determine whether he has reached the stage of concrete operations and, therefore, an appropriate level of competency.
Two considerations seem to militate against accepting this latter argument:
(a) one is simply that it is better to use a direct and complete test if one is available rather than to employ an indirect test such as this one;
(b) in many cases it is not until the child is in the final phase of the concrete operations (ie, about 10-11) that he will fully grasp the meaning of dishonesty. According to Piaget, a child of six equates a lie with saying naughty words and with untrue statements. For eight and nine year olds a lie is a statement that departs from objective facts. A child’s statement that he saw a mouse as big as an elephant is a big lie because mice are never as big as elephants. There are wide variations in the age at which a child comprehends the notion of dishonesty, which may perhaps be attributed to the great differences in religious and moral training which are given to children. Thus an older child might be a more able witness yet be prevented from giving his testimony because the child has had minimal ethical training.
• Persons of Defective Intellect.[21] It has been held that it is for the judge to decide whether a feeble minded person understands the nature of the oath. If he does not comprehend it, he will be declared incompetent. The same criticism which was discussed in the preceding section is applicable in this instance. A person’s understanding of moral matters as evidenced by his comprehension of the oath might bear very little relationship to his ability to comprehend questions and formulate rational responses. Further, in some cases of schizophrenia an individual might comprehend the nature and consequences of the oath but might be suffering from delusions or be hearing voices. His grasp on reality will be very poor and he will be unable to differentiate between fact and fantasy. The oath test seems particularly inadequate in such cases.
244. Other Tests. In some jurisdictions, a witness not competent to take the oath may give unsworn testimony. Different tests are provided:
• Honesty Tests. In the ACT and South Australia a child who does not understand the oath or affirmation will be allowed to give unsworn testimony after being told that he is required to tell the truth. In the NT the test for all persons not competent to take the oath is whether they understand that they will be liable to punishment if they do not tell the truth. These tests do not meet the other requirements for being able to give sound testimony.
• ‘Intelligence and Understanding’. The tests in Queensland, Western Australia, Victoria and Tasmania are more appropriately designed. They state that children may give unsworn evidence if the judge is satisfied that they have sufficient intelligence to justify the reception of their evidence and understand the duty of telling the truth. These tests attempt to ensure that the child has the ability to give rational, informative testimony. However, the emphasis on the child’s intelligence as a test of the child’s competency is difficult to justify. The meaning of intelligence is left at large for the judge to interpret and each judge might have a different notion of what he understands as intelligence. Is it ‘the ability to carry on abstract thinking’, ‘the ability to acquire capacity’ or ‘the power of good responses from the point of view of truth or fact?’.[22]
It would be preferable to frame a test of competency in terms of cognitive development, rather than in terms of intelligence—ie to assess the child’s actual stage of mental functioning rather than to concentrate on his potential. A highly intelligent child of five—for example, one who has great potential for abstract reasoning and who performs well on standard IQ tests-will be a poor witness if he is still in the pre-operational stage compared with an eight year old of lesser intelligence who is in the concrete operations stage.
245. Conclusion. The issue with which we are concerned is ‘who can be a witness, and give evidence’. It is obviously of critical importance to the trial system. The preceding paragraphs show that except in Christmas Island and the Cocos (Keeling) Islands there is no direct test of psychological competence, as such. Rather, prospective witnesses are regarded as psychologically competent if they have sufficient knowledge of the nature and consequences of an oath. In some jurisdictions a witness not competent to take the oath may give unsworn testimony. Different tests are provided. All of these approaches—including the test applied in Christmas and the Cocos (Keeling) Islands are inconsistent with modern psychological knowledge. The way is open for people who are psychologically competent to give evidence to be debarred as witnesses, and for psychologically incompetent people to give evidence.
246. Common Law. The common law, which applies in most jurisdictions is deficient in permitting a deaf mute witness to be declared incompetent. No witness should be prevented from giving evidence who is able, to communicate with human or mechanical help.
[1] s 119, Evidence Ordinance 1955 (Singapore) as applicable to the Cocos (Keeling) and Christmas Islands: see also JF Stephen, A Digest of the Law of Evidence, Macmillan, London, 1876, art 106-7.
[2] HP Grice, ‘Logic and conversation’, in P Cole & JL Morgan (ed) Syntax and Semantics, vol 3: Speech acts, Academic Press, New York. 1975, 41-58; DJ Foss & DT Hakes, Psycholinguistics, An Introduction to the Psychology of Language, Prentice Hall, New York, 1978, 175; HH Clark & SE Haviland, ‘Psychological Processes as Linguistic Explanation’, in D Cohen (ed) Explaining Linguistic Phenomena, Hemisphere Publishing, Washington DC, 1974, 91-124; HH Clark, ‘Inferences in Comprehension’, in DL Berge & SJ Samuels (ed) Basic Processes in Reading: Perception unit Comprehension, Erlbaum, Hillsdale NJ, 1977, 243-63; A Hildyard & DR Olson, ‘Memory and Inference in the Comprehension of Oral and Written Discourse’ (1978) 1 Discourse Processes 91; H Levin, 1 Silverman & B Ford, ‘Hesitations in Children’s Speech During Explanation and Description’ (1976) 6 Journal of Verbal Learning and Verbal Behaviour 560.
[3] Foss & Hakes, 110ff; JS Sachs, ‘Recognition Memory for Syntactic and Semantic Aspects of Connected Discourse’ (1967) 2 Perception and Psychophysics 437; E Wanner, On Remembering. Forgetting, and Understanding Sentences, Mouton, The Hague, 1974, 111 ; SR Greenberg, ‘An Experimental Study of Certain Intonation Contrasts in American English’, UCLA Working Papers in Phonetics. University of California, Los Angeles, 1969, 13; T Winograd, ‘Understanding Natural Language’ (1972) 3 Cognitive Psychology 1.
[4] AD Yarmey, The Psychology of Eye Witness Testimony, The Free Press, New York, 1979, 199ff.
[5] ibid.
[6] ibid.
[7] JL Tapp & L Kohlberg, ‘Developing Senses of Law and Legal Justice’ (1971) 27 Journal of Social Issues 65; JL Tapp & FJ Levine, ‘Legal Socialization: Strategies for an Ethical Legality’ (1974) 27 Standford L Rev.
[8] B Inhelder & J Piaget, The Early Growth of Logic in the Child, Routledge & Kegan Paul, London, 1964, 90.
[9] EF Loftus, Eye Witness Testimony Harvard University Press, Cambridge, 1979, 161.
[10] JH Flavell, PT Botkin & ors, The Development of Role, Taking and Communication Skills in Children, John Wiley, New York, 1968. Regardless of age, there is a rapid loss of information in the short term.
[11] Yarmey, 199ff.
[12] ie, short term memory—EF Loftus, Memory, Addison Wesley Publishing, Reading Mass, 1980, 112.
[13] MW Laurence, ‘A Developmental Look at the Usefulness of List Categorization as an Aid to Free Recall’ (1967) 21 Canadian Journal of Psychology 153.
[14] J Botwinick, Ageing and Behaviour, Springer, New York, 1978, 221.
[15] Yarmey, 224; CT Morgan, RA King & NM Robinson, Introduction to Psychology, 6th edn, McGraw-Hill, New York, 1979, 544; Udy v Stewart (1886) 10 OR 591, 600.
[16] R v McNaghten [1843] EngR 875; (1843) 10 Cl & F 200.
[17] See, eg, PS Atiyah, Accidents, Compensation and the Law Weidenfeld & Nicolson, London, 1970, 27ff.
[18] Yarmey, 77-9.
[19] See Appendix C, para 1-4.
[20] R v Brasier [1730] EngR 38; (1779) 1 Leach 199; 168 ER 202: Cheers v Porter [1931] ArgusLawRp 105; (1931) 46 CLR 521.
[21] R v Hill (1851) 20 LJMC 222; 90 RR 822.
[22] See eg HJ Butler, Human Intelligence: Its Nature and Assessment, Methuen, London, 1968, 27. On one occasion 17 leading American psychologists produced 13 different definitions.
247. The Law. As a general rule, judges are not compellable to testify about matters on which they are or have been judicially engaged.[1] There is authority, however that ‘inferior judges’ and court officers are compellable. The meaning of ‘inferior judge’, however, is not clear. It appears that a juror may give evidence in the case for which he is juror. As to giving evidence about cases in which he was engaged, it is unclear how much evidence a juror may give about the manner in which the verdict was obtained.[2]
248. Criticisms. There are arguments of principle against having a trial judge or juror give evidence in the trial for which he is the judge or juror. He will have difficulty appearing to be impartial once he has gone into the witness box and been cross-examined by one of the parties. There are also many practical difficulties—who will determine the acceptability of the judge’s testimony, the limits to his cross-examination, and can counsel cross-examine the judge or juror without offending him?[3] While the issue is not likely often to arise in practice,[4] a judge or juror should not be a competent witness in the case which he is acting as judge or juror. In other situations, a general rule of non-compellability, however, is inappropriate. So far as giving evidence in cases in which he is the judge or juror, he should be regarded as not competent. So far as giving evidence about cases in which he was the judge or juror, he should be compellable. A separate issue is whether a privilege should apply to his reasons for judgment and verdict and matters received in confidence.
249. Non-Compellability. An advocate is a competent witness but not compellable except, arguably, in relation to giving evidence about former proceedings at the request of the client in those proceedings.[5] This is undesirable. There are cases in which the advocate might be the sole repository of the most important evidence. It is not always possible to predict what evidence will be important. In addition, it would be dangerous to allow a party who knows that important evidence against him will be given by an advocate ‘to shut that person’s mouth’ by retaining him as his counsel.[6] Rules of privilege can protect any confidential information between the advocate and the client.
250. The Accused as a Competent Witness for the Prosecution. It is difficult to justify the situation that an accused person may be competent to give evidence for the prosecution. This appears to be the effect of the law in New South Wales, Western Australia, the Northern Territory and the ACT. It may be the result of a desire to simplify drafting. As a matter of principle, however, it conflicts with the traditional view of the criminal trial. A criminal trial is an accusatorial procedure in which the prosecution is expected to prove its case without the accused’s evidence. The accused is regarded as innocent until proved guilty and is traditionally under no obligation to speak. It is true that there are qualifications. In Western Australia he may only be called on his own application. In New South Wales and the Northern Territory, however, a person charged can be called by the prosecution in summary proceedings. A number of criticisms can also be made of the circumstances in which the co-accused may become a competent and compellable witness:
• Pleading Guilty. There is no rule requiring that the person pleading guilty be sentenced before giving evidence. Heydon suggests that there should be a mandatory rule of law that no evidence can be given by a co-accused who has pleaded guilty for the Crown until he has been sentenced, except in special cases where, for example, sentencing has been delayed until an expert report has been prepared.[7]
• Separate Trials. Where persons involved in the same criminal transaction are tried separately, each is a competent prosecution witness at the other’s trial.[8]
(I)t is one thing to call for the prosecution an accomplice, a witness whose evidence is suspect, and about whom the jury must be warned in the recognised way. It is quite another to call a man who is not only an accomplice, but is an accomplice against whom proceedings have been brought which have not yet been concluded. There is in his case an added reason for making his evidence suspect ... this well recognised rule of practice is one which must be observed.[9]
Under English law it is ‘highly irregular’ to call the accomplice until the proceedings against him have been concluded.
Heydon argues that the situation is satisfactory so long as the decision in R v Pipe is followed.[10] The rule however, is one of practice and not mandatory. There should be rules if we are serious in accepting the proposition that we should minimise the risk of convicting the innocent.
251. Compellability of Spouses for Prosecution. In most States and Territories, a spouse of an accused is compellable as a witness for the prosecution only in relation to trials for specific offences or in respect of specific issues. It is proposed to refer to this approach first and then to consider the Victorian approach. A number of criticisms can be made of the specific offence type of approach:
• The Arbitrary Choice of Offence.[11] Some offences are listed in the legislation of several States or Territories but those same offences have not been listed in the legislation of others. This applies to many and various offences including:
murder rape
carnal knowledge
incest
sodomy and bestiality
offences against the property of a spouse
ill-treatment and neglect of children
assault
gambling
prostitution
defilement
In addition there are offences listed in the legislation of only one or two States or Territories. For example:
attempting to injure by explosive substances
endangering the safety of persons in aircraft
disabling in order to commit indictable offences
non-repair of public highway or bridge
nuisance to a public highway, river or bridge
kidnapping[12]
defrauding charitable institutions
possessing house breaking implements
living on the earnings of prostitution
The above shows the arbitrary nature and difficulty of the choices that have to be made if the approach is taken of tying compellability to the charge being tried by the court. Under recent Tasmanian legislation for example, a spouse may be compellable to give evidence at a trial relating to the assault of a child under the age of 16 years but not at a trial for the murder of that child.[13]
In addition, in relation to offences against children which are fisted there is the arbitrary effect of using age as part of a definition of the offence—seduction of a girl under 18 with intent to defile, abduction of girls under 16 (Western Australia); defilement of girls under 17 indecent treatment of girls under 17, defilement of girls under 12 (Queensland), defilement of women between the age of 13 and 16 (Northern Territory).
The difficulties with the approach were explained by the Victorian Law Reform Commissioner in the following terms:[14]
45. Any attempt to specify crimes, or categories of crimes, in which spouse-witnesses shall be compellable for the prosecution will necessarily produce anomalous results in many situations, and ... there is room for wide differences of opinion as to which crimes or categories should be specified.
46. To name a crime, though it conveys what basic elements of criminal behaviour are referred to, does not provide any information as to what, in any future instance, will prove to be the weight of any of the irrelevant policy considerations ... Furthermore such a naming does not provide sufficient information to enable anything more than an intuitive judgment to be formed as to what, in future, will be the proportion of instances of the named crime in which the balance of policy considerations will prove to be in favour of compellability.
47. By way of illustration one may take the crime of attempted murder of a person under 16, which is one of the items in the present Victorian list. Merely to know that this is the crime to be considered for listing, does not tell us, in relation to any particular case that may arise in the future:
(i) Whether the evidence of the accused’s spouse will be of real importance to the reaching of a correct verdict
—or—
(ii) Whether a marital or family relationship of real value will exist or, if existing, will be likely to be disrupted by calling the accused’s spouse as a witness for the prosecution
—or—
(iii) Whether the affections, or the social or economic circumstances, of the accused’s husband or wife will be such that, having regard to the kind of sentence likely to result from a conviction, it would be unduly harsh to compel him or her to give evidence for the prosecution.
48. It is true of course, that to know that the crime charged is attempted murder of a person under 16, tells us that there is a high degree of likelihood that the enforcement of the criminal law against the person accused will be found, when the facts are known, to be of great importance to the community. But the general indication thus given by the name of the offence may, in some cases, prove misleading. For example, the facts on which the charge is based may be found to be that a mother, after agonizing mental struggles, has attempted to take the life of a much loved child to save it from protracted suffering and has then attempted her own life or given herself up to the police. The label, moreover, can be misleading in an opposite direction. For example, the unimpressive label of ‘common assault’ may refer to a sadistic infliction of protracted terror which has caused permanent psychiatric injury. And even if unusual situations such as these be disregarded, there remains the difficulty that the name of the crime gives no information at all as to whether, in any particular case that may arise, there will or will not, be countervailing policy considerations under the heads referred to in paragraph 47 above.
The Commissioner went on to argue that the serious offence is listed presumably because:
Where the offence can be a grave one the feelings and interests of the accused’s spouse must give way. ... When the offence is a minor one, the feelings and interests of the accused’s spouse are not likely to be gravely affected and should give way. But the conclusion, for present purposes, should be that the listing method is unsatisfactory because it involves reliance upon general reasoning from inadequate information.
• Potential Complexities at Trial. The New South Wales Law Reform Commission cites as an example of the potential complexity of the law in New South Wales the following situation:
Assume A and B are charged with (1) assaulting Mrs A; (2) murdering Mrs A’s father, who tries to protect her; (3) assaulting Mrs A’s young son, who also tries to protect her, in such a way as to infringe the Child Welfare Act 1939, s 149. Mrs A will be competent against A on all three charges. She will not be compellable on the first, in view of the decision in Riddle v R[15] as to the effect of the Crimes Act 1900, s 407. Mrs A will be compellable against A on the third charge, but not on the second. She will be both competent and compellable against B on all three charges. If A and B are tried together, as is likely, substantial artificiality and confusion in the trial must result.[16]
Similar complexities can arise whenever a listing of offence approach is used.
• Anomalies Resulting from the Law. The New South Wales Law Reform Commission has also pointed to a number of anomalies that arise because of the non-compellability of spouses as compared to other witnesses and the inflexibility of the law.[17]
― Spouses are not compellable no matter how bad the matrimonial relationship is.
― The law does not distinguish between the situation where the testimony may damage the spouse on the one hand and favour the spouse on the other. It is only in the former situation that there is any danger to the matrimonial relationship.[18]
― While a spouse is competent but not compellable, the law can operate unequally between accused persons depending on the decision of the wife. This can affect both the prosecution and the accused’s case.[19]
― By leaving the choice with the witness, it renders that witness open to suspicion of being motivated against the party against whom that witness is giving evidence. By rendering all witnesses compellable, no witness can be accused of being motivated by ill-will towards the accused in choosing to testify.
• Preservation of the Common Law. In Queensland, Western Australia and South Australia the common law’s uncertainties and conflicts are preserved.
• Inconsistency in Approach for Civil and Criminal Trials. It is not asserted that a spouse’s competence and compellability in civil matters is a cause of marital disharmony. Will compellability in criminal cases necessarily cause marital disharmony?[20]
252. In Victoria an alternative approach has been taken. Spouses are compellable for all parties but the court has the power to exempt a spouse from giving evidence for the prosecution having regard to matters listed in the legislation.[21] This discretionary approach was considered by the Law Reform Commission of Western Australia.[22] After noting that the Law Reform Commission of Canada recommended the use of judicial discretion, it raised three reasons why it may be inappropriate:
Firstly, the grant of a judicial discretion would lead to unpredictability in that the parties would not know until the trial whether the husband or wife of an accused would be compellable. This would lead to uncertainty in preparing cases for trial, as the parties would not know what evidence it would be necessary for them to call. Probably this could be overcome by providing a procedure for the determination of the discretion a reasonable time before the trial or hearing. However, interlocutory proceedings are not, as yet, part of the criminal procedure in Western Australia. Secondly, in the particular context of summary courts, it may not be appropriate to confer a discretion which could sometimes be exercised by lay justices of the peace. Thirdly, the possibility would exist of the discretion being exercised at the trial in a different manner to the way in which it was exercised in the committal proceedings.
This approach, however, is preferred by the Commission for reasons explained in the commentary to the legislation.[23]
253. Compellability of Spouse for Accused. In most States and Territories a spouse of the accused is compellable to give evidence for the accused only in relation to specified offences. Where the common law is preserved, it is now most uncertain whether a spouse is compellable at all. It is difficult, if not impossible, to justify a situation where an accused’s power to compel his or her spouse to give evidence on his behalf is limited.[24]
254. Compellability of Spouse for Co-accused. In most States and Territories, the approach is taken of specifying those offences for which a spouse will be compellable for the defence. The comments made above apply in this context. Further criticisms can be made. In Tasmania and South Australia, the spouse while competent for the defence may only be called for a co-accused person on the application of the accused spouse. In South Australia, the spouse is compellable only on the issue of the age or relationship of any child of the husband or wife. If it is accepted that:
An accused man cannot properly be required to run the risk of being wrongly convicted in order to spare the witness from hardship.[25]
It is difficult to justify any limits being placed upon the compellability of the spouse of a co-accused when being called for a co-accused.
255. The Former Spouse of the Accused. There is authority that a former spouse is not a competent witness at common law for any party.[26] This situation has been unanimously criticised. The policy considerations relating to the preservation of the marriage bond, which have been offered to justify the lack of competence or compellability, are clearly no longer operative once the relationship has ended.
256. Persons in Close Relationship With Accused. In most jurisdictions compellability is restricted only in the cases of spouses of the accused. In Victoria and South Australia, however, children and parents of the accused may seek exemption. So too, may de facto spouses in South Australia. It may be argued that both approaches are too arbitrary. For example, a man and woman living together without being married would be compellable witnesses against each other (except in South Australia). Brothers and sisters, grandparents and grandchildren would be compellable against each other. Friends would be compellable against each other. So too would partners. A fiduciary would be compellable against his principal.
257. The policy considerations that are relied upon to limit the compellability of spouses can apply to people in such relationships. Those considerations are:[27]
• The undesirability that the procedures for enforcing the criminal law should be allowed to disrupt marital and family relationships to a greater extent than the interests of the community really require.
• The undesirability that the community should make unduly harsh demands on its members by compelling them, where the general interest does not require it, to give evidence that will bring punishments upon those they love, or betray their confidences, or entail economic or social hardships.
It is possible to criticise the law for not recognising these considerations and placing some limits upon the compellability of de facto spouses, partners in traditional marriages, the family of the accused and other persons in close relationships with the accused. The issues are discussed further in the commentary to the compellability proposals.
258. Prohibition of Judicial Comment on the Failure to give Evidence. In those jurisdictions where a judge is prohibited from commenting on an accused’s failure to give evidence, it is often argued that it is ‘absurd’ that he cannot tell the jury that the accused does in fact have a right to give evidence.[28] Chief Justice Street stated recently that:
there is much to be said in favour of bringing the administration of justice out into the open. Those concerned in the conduct of criminal trials—certainly the judges, if not, indeed both judge and counsel—should be freed from this artificial fetter which can only serve to mislead the jury as to what the true state of the law is ... It is an absurd paradox that, by having accurately stated the accused’s rights as enacted in the Crimes Act, the judge has caused the trial to miscarry. Statutory secrets enforced on the courts and on juries ... do less than justice to the commonsense and fairness of juries.[29]
In the same case, Lee J asserted that: ‘Justice with blinkers on is not justice’. Many courts have argued that juries are well aware of the right of an accused to give evidence at his trial, and will as a consequence draw negative inferences from his failure to do so. Empirical research could shed further light on what assumptions people ordinarily have about silence and on their responsiveness as jurors to instructions that contradict common sense, but few informed persons doubt that negative inferences are drawn in ordinary life and that they are drawn with some frequency by jurors in criminal cases regardless of instructions. The point is that the jury may give the accused’s failure to give evidence too much weight. It may conclude that his silence constituted an admission of guilt. Lawton LJ has stated:
In our experience of trials, juries seldom acquit persons who do not give evidence where there is a clear case for them to answer and they do not answer it ... . The reason lies in common sense. An innocent man who is charged with a crime, or with any conduct reflecting upon his reputation, can be expected to refute the allegation as soon as he can by giving his own version of what happened. Juries know this ...[30]
Given that juries will draw inferences from the accused’s silence, it seems preferable that the judge be permitted to instruct them as to what inferences they are, and are not, entitled to draw.
259. Prosecution Comment. In Queensland the prosecution may comment on the accused’s failure to give evidence. It may be argued that allowing prosecution comment is unduly favourable to the prosecution. If the prosecutor limits himself, as in theory he should, to the presentation of objective facts, permitting him to comment on the accused’s silence achieves no purpose that is not achieved by permitting the judge to comment. If the prosecution adopts a more partisan role, then it would be unfair to an accused to permit the prosecutor to make numerous and unrestrained comments on the accused’s failure to give evidence, particularly if the accused, for whatever reason, has not explained his reasons for remaining silent.
260. Justice Neasey makes this point in another way:
The question immediately arises whether, if the prosecution were allowed to comment, the defence ought to be allowed to state the accused’s reasons for not giving evidence. It seems only fair that the defence should have this right, but it would seem it could not be satisfactorily exercised except by the accused giving sworn evidence, subject to cross-examination. An absurd situation would arise, however, if the accused took the witness stand merely in order to state his reasons for declining to give evidence about the facts of the case. It is suggested that it would be better to leave the matter with the judge having an unrestricted discretion, provided it is fairly exercised on the facts of the particular case, to comment. This should be the best way to get a balanced comment before the jury, and there should not be any real need for the prosecution to be able to comment as well.[31]
[1] See Law Reform Commission of NSW, Discussion Paper, Competence and Compellability, Sydney, 1980 para 2.2. See also RP Croom-Johnson & GFL Bridgman (ed) Taylor’s Treatise on the Law of Evidence, 12th edn, Sweet & Maxwell, London, 1931, para 1379; R v Anderson (1680) 7 How St Tr 811; R v Earl of Thanet (1799) 17 How St Tr 822; R v Gazard [1839] EngR 202; (1838) 8 C & P 595, 173 ER 633; Hurpurshad v Sleo Dyal (1876) LR 3 Ind App 259, 286, 26 WR 55; R v Antrim (1901) 2 IR 133, 141; Mitchell v Croydon Justices (1914) 30 TLR 526; Hennessy v Broken Hill Pty Co Ltd [1926] HCA 32; (1926) 38 CLR 342; Zanatta v McClearly [1976] 1 NSWLR 230; JH Chadbourne (ed) Wigmore on Evidence, Little Brown & Co, Boston, 1976, para 1909. There are suggestions that a judge or magistrate who leaves the bench to give evidence in a case should not take any further part in a judicial capacity: Lord Hailsham (ed) Halsbury’s Laws of England, vol 17, Evidence, Butterworths, London, 1976, para 232.
[2] See Law Reform Commission of NSW, para 2.4 and Ellis v Beheer [1922] 2 KB 113; Boston v WS Bagshaw & Sons [1922] 2 All ER 87; R v Roads [1967] 2 All ER 84. See generally G Nokes, An Introduction to Evidence 54th edn, Sweet & Maxwell, London, 1967, 193-4 and cases there cited. See also Duke of Buccleugh v Metropolitan Board of Works [1872] UKLawRpHL 9; (1872) LR 5 HL 418, 449; Vaise v Delaval (1785) 1 TR 11; 99 ER 994.
[3] See eg Law Reform Commission of Canada, Study Papers on Evidence, 1, Competence and Compellability, Ottawa, 1972, 3—but this is a matter of privilege.
[4] NSWLRC para 2.2.
[5] NSWLRC para 2.6. See Guineas Case (1841) Ir Circ Rep 167.
[6] SL Phipson, Bert on Evidence, 12th edn, Sweet & Maxwell, London, 1922, para 184.
[7] JD Heydon, ‘Obtaining Evidence versus Protecting the Accused: Two Conflicts’ (1971) Crim L Rev 13, 14-5, 17.
[8] Winsor v R (1866) LR 1 QB 289, 390; Heydon, 17; JA Gobbo, D Byrne, JD Heydon, Cross on Evidence, 2nd Aust edn, Butterworths, Sydney, 1979, para 8.14.
[9] R v Pipe (1967) 51 Cr App R 17, 21-22; Heydon, 17-18.
[10] id, 34.
[11] See Appendix C, para 3.
[12] In Victoria the absence in earlier legislation of this offence created difficulties in the Farraday kidnapping case. The legislation was amended to include ‘kidnapping’ and thus enabled the spouse of one of the accused to be compelled to give evidence.
[13] Evidence Amendment Act 1981 (Tas) s 6. Note also the listing of domestic violence offences in the Crimes Act 1980 (NSW) s 4 which has the effect that a discretion to excuse the spouse applies in a trial relating to the murder of the spouse but not in a trial for conspiracy to murder the spouse. Compare also, for example, s 46 (causing injury by explosive) and s 47 (using explosives with intent to injure) in relation to which the discretion applies, with s 55 (possessing explosives with intent to injure) for which the discretion does not apply.
[14] Law Reform Commission of Victoria, Report No 6, Spouse-Witnesses (Competence and Compellability) Melbourne, 1976. Also the Hon CJ Sumner (Attorney-General), South Australia, Legislative Council (Debates) (1983), 1126.
[15] [1911] HCA 33; (1911) 12 CLR 622.
[16] Law Reform Commission of Victoria, para 1.19.
[17] ibid.
[18] Wigmore on Evidence, para 2234; NSWLRC para 1.15.
[19] J Bentham, A Rationale of Judicial Evidence, Hurst & Clarke, London, 1827, Book IX, Part IV, Chapter 5, Section 4, para 1.
[20] Law Reform Commission of NSW, para 1.14-1.20.
[21] Crimes Act 1958 (Vic) s 399-400.
[22] Report on Competence and Compellability of Spouses to Give Evidence in Civil Proceedings, Project No 31, Perth, 1977, para 7.13.
[23] See below, para 529.
[24] Law Reform Commission of Tasmania, Competence and Compellability of Spouses to give Evidence in Criminal Proceedings Preferred Against the Other Spouse—Report and Recommendations, Government Printer, Hobart, 1977, 9.
[25] Law Reform Commission of Victoria, para 58.
[26] Law Reform Commission of WA, para 4.22. See Monroe v Twistleton [1802] EngR 5; (1802) Peake Add Cas 219, 170 ER 250; O’Connor v Marjoribanks (1842) 4 Markby 435; [1842] EngR 703; 134 ER 179; R v Algar [1954] 1 QB 279 (CCA); Rumping v DPP [1964] AC 814, 818 (HL); [1959] Crim L Rev 685; Shenton v Tyler [1939] Ch 620 (CA); Moss v Moss [1963] 2 QB 799, 804: Moors v Whyte (No 2) [1922] NSWStRp 39; (1922) 22 SR NSW 570, 583.
[27] Law Reform Commission of Victoria, 19.
[28] R v Greciun-King [1981] 2 NSWLR 469, 472, 473 (CCA).
[29] id, 472.
[30] Bataillard v R [1907] ArgusLawRp 65; (1907) 4 CLR 1282 (Griffith J); Bridge v R [1964] HCA 73; (1964) 118 CLR 600, 611 (Windeyer J); R v Thornton (1980) 3 A Crim R 80, 84-5 (Viet CCA); R v Greciun-King [1981] 2 NSWLR 469, 472, 473.
[31] R v Sparrow [1973] 1 WLR 488, 493.
261. Introduction. A number of general criticisms can be made of the requirement of an oath and used to advance arguments for its abolition. These will be considered in the commentary on the proposals. In this chapter, criticisms of the existing law and its operation will be considered.
262. Forms of Oath Offensive or Inappropriate. In some instances the methods to be used are at best embarrassing and at worst offensive:
• Buddhist. This form of oath that refers to the deity Dhamma[1] has been described as insulting to Western Buddhists and as having no particular binding effect on their consciences. The deity Dhamma is not recognised as such by Western Buddhists.[2]
• Muslims. Stringer expresses the view that it is very doubtful whether Muslims should be sworn. He refers to their repugnance to taking an oath which has been recognised by the Indian Government.[3] There is some evidence that the form of oath, using the Koran, is not in conformity with the dictates of the Islamic religion. There is some evidence that such a form of oath is an embarrassment to Muslims.[4]
• Hindus. In 1974, a witness complained to the Secretary of the Law Department in Victoria about being asked to take an oath in the form referring to the ‘Holy Water of the Ganges’ but using a glass of tap water.[5] The witness argued that this was not the proper oath for a Hindu. The witness stated that the procedure in India was to take the oath on the Holy Gita, using words similar to that of the Christian oath but substituting the word ‘Gita’ for the word ‘Bible’. The form of oath used was that laid down in the Clerk of Courts Manual for use in Magistrates’ Courts. The appropriateness of an oath for Hindus has been questioned.[6]
• Sikhs. It has been argued that a Sikh does not regard the Granth as a holy book outside the Temple and would not regard a Granth produced in court, therefore, as being particularly binding on his conscience. The Punjab High Court has ruled that on no account may a Granth even be brought into court.[7]
263. Relying on the Witness. The common law solution of asking the witness to identify the form of oath binding on the conscience of that witness and accepting his answer can be criticised. It creates the paradoxical situation that, while requiring the witness to swear an oath to encourage that witness to tell the truth, we rely upon the witness to tell us what that form of oath should be used. This may, however, be unavoidable.
264. Inability to Establish Form of Oath. Where it is not possible to establish what is the appropriate oath to be taken but the witness does believe in a god and divine punishment and rewards it has been argued that the following form of oath can be used:
I swear according to the custom of my country, and the religion I profess that the evidence I shall give in this case shall be the truth, the whole truth and nothing but the truth.[8]
This form of oath appears in the High Court handbook as the form of oath to be used for a witness ‘of foreign origin’ or of an ‘unusual religion’ who is ‘not willing to take any form oath’. It may be argued, however, that the cases cited for this form of oath merely provide variations on the Scottish oath. It is suggested that the better view is that such a witness cannot be sworn at common law. His evidence cannot be received except in those jurisdictions where, by legislation, a witness is free to affirm without having to satisfy any conditions.[9]
265. Practical Difficulties. In a number of instances it is necessary to have specific religious texts available and also other materials. It is not unusual for a court to have available a copy of the Bible containing the Old and New Testaments but no other text. While in most instances evidence can be given by witnesses using the Bible or affirming, from time to time occasions have occurred, and will occur, where the person to be sworn has a religious belief but the appropriate text is not available. This is unsatisfactory if an oath is to be preferred to an affirmation and could result in courts in some jurisdictions being unable to receive the evidence. The alternative of ensuring that all courts should have available to them copies of all the religious texts of the wide range of religions which exist in this country (not to mention crockery and roosters)[10] may be thought inappropriate, costly and burdensome. Having a religious form of oath also has the result that the court will on occasions feel compelled to enquire into the witness’ knowledge and understanding of the nature and consequences of the oath—for example, when children or mentally ill persons are called to give evidence. The Commission has also been advised of problems experienced in interpreting the form of oath where the witness must repeat ‘So help me God’.
266. Legislative Consequences of a Religious Oath. The considerable amount of legislation dealing with the oath[11] results from the use of a religious oath. To require such an oath means providing alternatives where:
• it is impracticable to administer the appropriate form of religious oath;
• the witness has no religious belief;
• taking the oath in its traditional form is against the witness’ belief;
• it is not possible to establish what form of religious oath would be binding,
and rules about how to establish what is an appropriate form of oath and other matters.
267. Australian Capital Territory. While witnesses are permitted to affirm in the Court of Petty Sessions there is an argument against the validity of that practice. The issue turns on whether s 13 Oaths Act 1900 (NSW) as it existed prior to 1 January 1911 was overridden by the Court of Petty Sessions Ordinance 1930 s 55(1) which requires evidence to be given on oath. An argument supporting the practice received by the Commission is that the NSW provision assumes the existence of other legislation prescribing oaths and that there is no necessary inconsistency. The Ordinance however, uses mandatory language and refers to oaths only.[12]
268. Invasion of Privacy. The existing law in some jurisdictions will require witnesses who wish to affirm to reveal the nature of their religious beliefs or the fact that they hold no religious belief.
The strongest objection to the present practice is that persons who do not wish to take an oath, and have an absolute right not to do so, are obliged to make a public declaration of their religious beliefs. or the absence of them. This may put them in a position of some indignity and embarrassment by exposing them to the criticism of the ignorant and narrow-minded. Moreover, refusal to take an oath is sometimes founded on political opinions which may be locally or temporarily unpopular; it is equally objectionable that a man should be called upon to make a public profession of them.[13]
269. Perjury Warning. If the oath and affirmation are used as a means of securing more truthful evidence from witnesses, they may be criticised for not including a reference to the legal consequences of committing perjury. While many witnesses may be aware of the risk of prosecution for perjury, there will be many who are not. Further, an express reminder could have a salutary effect on the minds of many witnesses. Such a reminder is contained in the affirmation prescribed in Queensland, where it is impracticable to administer the oath. It is the only jurisdiction to have such a provision.
270. Introduction. There has been wide-spread criticism of both the right of the accused to give unsworn evidence and also the detail of the law, practice, and procedure relating to the right of the accused to give unsworn evidence. In this section, it is proposed to refer to the criticisms that have been made of the law, practice and procedure. The general arguments for and against retention of the right will be considered in the commentary on the draft legislation.
271. Difficulty in Controlling the Content of the Unsworn Statement. While courts have attempted to exercise control over the content and presentation of unsworn statements where the opportunity has presented itself, the only power the Judge has to intervene rests with his general power to control the course of the trial. It is unclear, however, to what extent the unsworn statement must comply with the rules of evidence. Further:
... it must be admitted that the judge is in a somewhat difficult and unenviable position because if he feels called upon to interrupt frequently he is in danger of giving an impression to the jury that he is being unfair to the accused. In any event a certain latitude can be allowed to the accused who cannot be expected to have a fine knowledge of what is legally relevant and what is not.[14]
272. The difficulties in controlling the unsworn statement have resulted in what are seen to be abuses of that right.
• Injury to the Reputation of the Innocent. A frequent complaint has been made, particularly in relation to trials for rape, of scurrilous and damaging assertions made in unsworn statements.[15] The accused should not be able in an unsworn statement to make such attacks which could not have been made in cross-examination of that victim or in sworn evidence. One way to deal with the matter is to enable the prosecution to lead evidence of prior convictions and bad character in the event of attacks on the character of the alleged victim.[16]
• Inclusion of Hearsay and Irrelevancy. It seems that from time to time unsworn statements have included hearsay and otherwise inadmissible evidence.[17] The situation in Victoria has apparently improved somewhat so far as relevance is concerned, probably as a result of a ruling of the Victorian Bar Council.[18] The Victorian Law Reform Commissioner comments that, if counsel adhere to the guidelines and submit to judicial scrutiny statements about which they have any doubt, the problems should be reduced to negligible significance. He also points out that in Victoria the judge at the trial can comment on the fact that the hearsay material contained in the statement cannot be tested by cross-examination and that the jury might, as a result, think that its weight as proof could be affected.” The trial judge, however, needs to be able to control what is said.
• Unduly Long Statements. This point is raised by the New South Wales Law Reform Commission. It states that the unsworn statement has occasionally be abused by being ‘protracted beyond reason.[19] Reference is made to the five day statement of John Stonehouse in his trial in England.[20] This point has not been raised in other discussions of the unsworn statement. It is suggested that it is a problem that will rarely arise.
273. Sworn and Unsworn Evidence. There does not appear to be any justification for the accused having an unlimited right to give sworn as well as unsworn evidence[21] except, perhaps, in the case of the unrepresented accused.
274. Directions to Juries—Joint Trials. Where one or all co-accused have made statements, the trial judge must direct the jury as to the use to be made of the statements. There is uncertainty in the law as to the precise use that can be made by each accused of the statement of the others. The predominant view appears to be that an unsworn statement by one accused cannot be used as evidence for or against a co-accused. Accepting this, the jury must be directed accordingly and must, as a result, engage in the difficult task of trying to disregard the unsworn statement of one accused when considering the evidence relevant to the case against the other accused.[22] The Victorian Law Reform Commissioner has commented: What the judge has to do is to instruct the jury to exclude this material from their minds (which is virtually an impossibility)—or to completely disregard it as against the co-accused.[23]
275. In commenting on the extent of the problem, the Victorian Law Reform Commissioner said:
Abolition of the unsworn statement would no doubt dissolve one difficulty but could not affect the tendering of statements out of court before a trial in which statements containing incriminatory material against a co-accused are inextricably mixed with other admissible statements.
He went on to say:
Judges of long experience in the criminal law with whom this matter has been discussed, take the view that in most cases a jury can be adequately instructed so as to ensure a fair trial. However there can be cases where a judge sees a clear likelihood of the jury being unable to comply with the judge’s direction to disregard the unsworn statement of one accused when determining the issues as between the Crown and a co-accused, and in such rare cases the only solution is to grant a separate trial of the charge against the co-accused who has been incriminated by the unsworn statement.[24]
276. The issue is one that is difficult to assess by empirical study. An attempt[25] was made to test the operation of some of the laws of evidence and certain directions by having ‘mock’ juries listen to a tape recorded re-enactment from the transcript of the real trial and then to reach a verdict upon what they had heard. This enabled panels of juries to consider the same trials but with some variation as to the evidence received and some variations as to the directions given. One of the tests attempted to assess whether the juries responded to directions given to them as to the relevance of evidence of prior convictions and the use to be made of such evidence. Where evidence of prior convictions was put before the juries, they were influenced if the nature of the prior convictions was similar to the crime the subject of the charge. In such cases, however, those juries which were directed as to the use to be made of such evidence, had a lesser conviction rate than those which had not received the direction.[26]
277. As to the experimental technique, the authors acknowledged its limitations—it dealt with only two trials, involved a laboratory experiment and ‘no defendant’s future hung upon the juries’ verdict’. The results of this experiment, however, lend some support to the view that some juries, on occasions, will appropriately apply instructions given to them about the evidence. On balance, it is proposed to do no more than clarify the law on the use that may be made of the unsworn statement of one accused for or against a co-accused.
278. Prohibition of Judicial Comment on the Failure to give Sworn Evidence. In those jurisdictions where the trial judge is not permitted to comment on the failure of the accused person to give evidence on oath, the trial judge is faced with a very difficult task in commenting on the unsworn statement. The problem arises because the judge may draw the jury’s attention to the fact that in deciding what weight to give to the unsworn statement, it is proper for the jury to consider that it was not made on oath and was not tested by cross-examination. In doing so, it is difficult for a judge to be sure that his remarks do not amount to a comment on the failure of the accused to give evidence.[27] He must, however, avoid calling attention ‘directly or indirectly to the fact that the accused has not submitted himself to cross-examination’.[28] It has been said that:
There are very narrow limits within which such a statement must be confined if it is not to amount to a comment upon the accused’s failure to give evidence.[29]
The New South Wales Law Reform Commission has commented that:
The line is fine indeed if a judge may say a statement is not subject to cross-examination but not be permitted to call attention to the accused person’s failure to submit himself for cross-examination; for how else can it become subject to cross-examination but by the accused so submitting himself?[30]
279. The law in these jurisdictions appears to assume that it is likely the jury will not know of the right of the accused to give evidence on oath and that commenting on the distinction between sworn and unsworn evidence will not call it to their minds. This may be thought to be unrealistic.[31] The unreality was recently brought home in the case of R v Greciun-King.[32] The trial judge in this case received a query from the jury in the following terms:
All witnesses called by the Crown and by the defence have given their evidence before the jury on oath since the jury was selected. I do not recall Mr Greciun-King taking the oath. Did the court require that Mr Greciun-King take the oath before pleading, that is before the jury was selected? If so, was Mr Greciun-King on oath making the statement to the jury? If not, was Mr Greciun-King precluded from taking the oath by reasons of his unwillingness to enter the witness box?[33]
The trial judge responded in the following terms:
Ladies and gentlemen, there are three courses open to an accused person. First, he may give evidence on oath from the witness box like any other witness; second, he may make an unsworn statement to the jury as he did on this occasion; third, he may remain silent. The law says this, that those are the three alternatives open to an accused person and that no adverse conclusion should be drawn against him from the fact that he decided to make a statement rather than give evidence.[34]
In so responding, however, the trial judge infringed the statutory prohibition. The appellant’s challenge to the direction was upheld and because of the significance of the point, it could not be said that there was no miscarriage and as a result the appeal was successful. The Chief Justice stated in his judgment that:
There is much to be said in favour of bringing the administration of justice out into the open. Those concerned in the conduct of criminal trials—certainly the judges, if not, indeed, both judge and counsel—should be freed from this artificial fetter which can only serve to mislead the jury as to what the true state of the law is. His Honour, in straightforward and wholly correct terms, answered the specific question the juror had asked: he told the jury exactly what the law was. Understandably he found it distasteful, to the point of being unacceptable, to equivocate with or mislead the jury as to the true state of the law. It is an absurd paradox that, by having accurately stated the accused’s rights as enacted in the Crimes Act, the judge has caused the trial to miscarry.[35]
[1] See Appendix C, para 15.
[2] M Weinberg ‘The Law of Testimonial Oaths and Affirmations’ (1976) 3 Mon L Rev, 25, 32.
[3] In India, Muslims were permitted by legislation to affirm in lieu of taking an oath. FA Stringer, Oaths and Affirmations in Great Britain and Ireland, 3rd edn, Stevens & Sons Ltd, London, 1910, 106, 140.
[4] Weinberg, 32.
[5] Appendix C, para 15. Victorian Chief Justice’s Law Reform Committee, Report on Oaths and Affirmations, Melbourne, 1981, 1.
[6] JH Buzzard, R May, MN Howard, Phipson on Evidence, 12th edn, Sweet & Maxwell, London, 1976, para 1522; Anstey, (On Judicial Oaths as administered to Heathen Witnesses), 3 Jur Soc Pap 371, 377.
[7] Weinberg, 33.
[8] SW Johnston, ‘The Witness Sworn Saith ...’ (1956) 30 ALJ 74, 76; R v Mildrone (1786) 1 Leach 412; Mee v Reid (1790) Peake NPC 33.
[9] Nash v Ali Khan 8 Times Reports 444.
[10] See Appendix C, para 15.
[11] See Appendix C, para 15-21.
[12] See Seat of Government Act 1909 s 6(1); Court of Petty Sessions (Civil Jurisdiction) Ordinance 1982 s 195; Interpretation Ordinance 1967 s 15.
[13] Scottish Law Commission, Memorandum No 8, Draft Evidence Code, Edinburgh, 1968, 67. See also Criminal Law Revision Committee of England, 11th Report, Evidence (General) HMSO. London, 1977, para 280; Law Reform Commission of Canada. Report, Evidence, Information Canada, Ottawa, 1975, 86-7.
[14] Law Reform Commissioner of Victoria, Report No 11, Unsworn Statements in Criminal Trials, Government Printer, Melbourne, 1981, para 5.23.
[15] id, 25 and Law Reform Commission of NSW, Discussion Paper, Unsworn Statements of Accused Persons, Government Printer, Sydney, 1980, 22. Submissions making this point have been received by the Commission. See also BW Beach, ‘Unsworn Statements in Criminal Trials’, (1983) Police Life, 4.
[16] See proposal Law Reform Commissioner of Victoria, para 5.18 and NSWLRC, ibid.
[17] Law Reform Commissioner of Victoria, para 5.23, Law Reform Commission of NSW, para 29, and Select Committee of the Legislative Council of South Australia, Final Report, Unsworn Statements and Related Matters, Govt Printer, Adelaide, 1981, 15. Submissions have been received by the Commission raising this issue.
[18] See Appendix C, para 20.
[19] Law Reform Commissioner of Victoria, para 5.23, 5.24. He also comments that some judges see the inclusion of hearsay or irrelevant evidence as merely presenting a problem of waste of time.
[20] NSWLRC para 79.
[21] Enquiries suggests that the practice is not very common.
[22] The alternative advocated in South Australia (see Appendix C, para 24) may be criticised as requiring more subtle distinctions and more complicated directions than the predominant view.
[23] Law Reform Commissioner of Victoria, para 6.06.
[24] Law Reform Commissioner of Victoria, para 6.07.
[25] AP Sealey & WR Cornish, ‘Juries and the Rules of Evidence’ (1973) Crim L Rev, 208.
[26] Variation introduced was that, in the group of juries that considered a rape case, four of the juries were given the normal instruction about the danger of convicting without corroboration. Ironically, there was a higher conviction in this sample than in the group of juries that did not have the direction. The authors stressed that the number of four cases is too small a number from which to draw firm conclusions. They suggested that a possible explanation might be that, in giving the corroboration warning, the judge had to state whether particular pieces of evidence may amount to corroboration and that this may have assisted the jurors to favour convicting. On the other hand it may lie in the fact that the jury are told in the warning that notwithstanding there is no corroboration they may, nevertheless, convict.
[27] See remarks of the Windeyer J, Bridge v R (1964) 118 CLR 606, 611.
[28] Bridge v R [1964] HCA 73; (1964) 118 CLR 600, 605.
[29] ibid.
[30] Law Reform Commission of NSW, para 71.
[31] See discussion. Law Reform Commission of NSW, para 69-76.
[32] [1981] 2 NSWLR 469. The Commission has been advised of cases since where the jury has sought an explanation of the accused’s options of the status of an unsworn statement.
[33] id, 470.
[34] ibid.
[35] id, 472 (Street CJ).
280. Organisation of Chapter. A variety of rules and discretions control the presentation of evidence. In the paragraphs that follow criticisms of some rules and discretions are considered.
281. Restrictive Practice. There is a reluctance to permit witnesses to tell their story freely. Generally the witness will be limited to answering questions. The criticism is made at times that being tied to answering designated questions can upset the witness and limit and distort the testimony.[1] This is unfortunate. Research suggests that a free report gives a significantly more accurate version of the events in dispute.[2]
282. A Discretion. A witness does not have the right to use an interpreter. At the court’s discretion, those who do not understand English may give evidence through an interpreter and witnesses who are unable to hear or speak may testify either by sign language or in writing.[3] The primary consideration is that:
what the witness has to say should be put before the court as fully and accurately, and as fairly and effectively, as all the circumstances permit.[4]
283. The Exercise of the Discretion. The Commission of Inquiry into Poverty reported a reluctance on the part of the courts to permit witnesses to use an interpreter.[5] It has been put to the Commission that courts are unduly reluctant to permit the use of interpreters.[6] It has been stated:
Some judges and magistrates are very reluctant to allow the evidence to be given through the interpreter. Apparently they fear that a person giving evidence through the interpreter has some advantage over other people. Nothing is further from the truth. Even a good interpreter, and they are few and far between, can only give an approximate meaning, without the nuances and without the stress contained in the original. Even the best interpreter can forget a part of what was said or understand a word in a wrong context, especially when the intended context follows in time. In reality, the person who has to use an interpreter is extremely handicapped.[7]
The Australian Institute of Multicultural Affairs has expressed concern at the difficulty of obtaining permission to use an interpreter.
In the absence of any authoritative statutory or judicial guidelines, courts apply a variety of standards to decide the circumstances requiring interpreters. While some judges and magistrates require the use of interpreters when defendants are not fluent in English, others require interpreters only when the defendant has trouble understanding proceedings. This less rigorous standard is consistent with case law, but it can mean that people are unable to participate effectively in proceedings.[8]
It is suggested that there is a general reluctance to allow the use of interpreters either for the whole or the part of a witness’ testimony. The result can be unnecessary confusion and difficulty for the witness. An example of this problem was given to the Commission. A youth was accused of entering the property of a Polish born couple, both aged pensioners, and badly injuring them. An interpreter was called to help the woman, but the judge found that the woman could speak some English and ordered the interpreter to stay away from the plaintiff including an order not to speak to her during the recess. The woman used her English as well as she could to face the cross-examination but there was a moment when the plaintiff was confused: she was asked if she was present at the police station. She (as it emerged later) did not know that ‘present’ means something other than gift. At that stage the interpreter rose up but the judge ordered ‘no interpreting’. There were more similar moments, but the judge did not allow the interpreting.
284. The reluctance to allow the use of interpreters stems in part from a fear of parties and witnesses abusing the right to use an interpreter—for example, to shield a witness, to gain more time to consider questions, to reduce the impact of cross-examination.[9] The Commission of Inquiry into Poverty went further in its comment:
the attitude expressed by an English judge 120 years ago, to the effect that foreigner’s pretend to be ignorant of the language in order to gain time to consider their answers in cross-examination, is still echoed in the courts today.[10]
The reluctance also stems, however, from a lack of appreciation of the process of interpretation. It is assumed that the interpreter should give only a literal translation; this is all that is said to be involved.[11] The following complaint is a common one:
... even today it is all too common an experience to hear the interpreter giving the effect instead of giving a literal translation of questions and answers, and of his own accord interpolating questions and eliciting explanations. These matters may operate unfairly either to the advantage or to the disadvantage of the witness involved.[12]
It is assumed that a person either knows English or he does not. This is not so for the vast majority of witnesses for whom English is not their original language. The processes involved in expression and translation are complex and difficult. It has been said of interpretation that:
To be done well, it requires not only linguistic sophistication and sensitivity to ‘minor’ linguistic details (which may be corrolated with vast differences in conceptualisation), but also an intimate knowledge of the cultures associated with the language in question, of the social and political organisation of the relative countries, and of the world views and lifestyles reflected in the linguistic structure.[13]
For example:
• The Problem of Matching Words. In Russia the word ‘ruka’ corresponds both to the English word ‘hand’ and ‘arm’. The expression ‘family’ has a wide or narrow mean according to the cultural background of the witness. Basic English words such as ‘girlfriend’, ‘housewife’ or ‘babysitter’ do not, for example, have any Polish equivalents. In England, the ‘morning’ finishes and the ‘afternoon’ starts at 12 o’clock but in Polish, the morning (‘ratio’) finishes earlier—around 11 o’clock—and the afternoon (‘popoudaie’) starts later—approximately 3.30.[14]
The seriousness of this question is brought home in an example given to the Commission of a case in New South Wales. The accused was charged with molesting his daughter. He was convicted. His wife was called to give evidence and was asked in English ‘is your husband infatuated with your daughter’? This was extremely difficult to translate into her native language. It was in fact translated into her native language in such a way that it meant ‘does your husband love his daughter.’ The wife answered that question in the affirmative.
• Different Grammatical Constructs. Particular grammatical forms can have a special meaning. For example:
The Spanish ‘dative of affected possessor’. A sentence like ‘Juan le vio los pantalones a Maria’ reports the fact that Juan saw Maria’s underpants. That much can be translated into English. But the sentence implies much more: it implies that Maria was affected by that fact: it is almost certain that Maria was actually wearing the pants when Juan saw them. Maria’s disgrace or embarrassment—hinted at but not put into words—is essential for the meanings of the Spanish sentence, but is virtually untranslateable into English.[15]
Other problems can be identified and discussed,[16] particularly the problem of coping with colloquial expressions. Another case referred to the Commission involved a defendant who had been committed to a psychiatric institution for observation. The reason for this was that when the magistrate asked the defendant how he felt, he used an expression which, literally translated, meant ‘I am God of Gods’. It was literally translated to the magistrate and his decision was not surprising. The expression, was a colloquialism meaning ‘I feel on top of the world’. It must also be remembered that, as in the English speaking community there are many levels of linguistic skills. Further many migrants are barely literate in their native language.[17] This too can create interpreting difficulties. For these reasons it will often be necessary for the interpreter and witness to interpolate questions and explanations and for the interpreter to give the ‘effect’ of the evidence.
285. On occasions witnesses may abuse the right. However, the low socio-economic status and indeed the semi-literacy of a substantial proportion of migrants make it likely that in the majority of cases in which interpreting assistance is requested the need for assistance is quite genuine. There is a greater likelihood of injustice when interpreters are not used in doubtful cases than when they are used unnecessarily, particularly taking into account the unfamilarity (to migrants) and the complexity of legal proceedings.[18] The emphasis of the law should be changed to give witnesses the right to use interpreters if they choose subject to a power in the judge to disallow their use in appropriate cases.
286. Inability to Tender the Document. The NSW Law Reform Commission has raised the question of whether the restrictions on tendering the document used to refresh memory are justified:
If a document is used to refresh memory without being made evidence, the curious result follows that though it is not evidence it is presumed to be more likely true than false, otherwise it would not refresh the witness’ memory correctly. The document is not evidence; the witness’ statement, which is not based on anything but the document, is. This may be thought to put matters the wrong way around.[19] ... Where memory is truly refreshed it may be satisfactory to regard the witness’ evidence as admissible, where memory is not truly refreshed, it is in substance the inadmissible document which is going in.[20]
In either situation, however, the contemporaneous document is likely to be superior in accuracy to evidence given years after the event. In practice, what often happens is that the witness pretends to refresh his memory but in fact re-reads portions and then looks away and repeats what he has read.[21] Whether a document used to refresh memory in either way becomes admissible or not can depend upon the tactical mistakes of the opposing party in cross-examining too widely on the document. This is said to be ‘anomalous’.[22]
287. The Embargo on Reading the Document. A witness may not, strictly speaking, read aloud in court the document used to refresh memory. It has been argued, however, that it is convenient to allow a witness to read his notes and that there are many situations where this is unobjectionable eg, the doctor giving the medical history or a police officer giving the series of measurements taken at the scene.[23] The vice in the law is that flexibility in its operation arises only from waiver of the rules by the parties. If a party does not object, a witness may be allowed to read his notes or other statements. If a party choses to object, however, the witness must attempt to give his evidence without reading the notes. It may be desirable to give the Court the power to enable notes to be read where the matter is not controversial or where factual accuracy, such as information about measurements, is at issue.
288. Absence of any General Rule of Production. The weight of authority is to the effect that a witness is not obliged to produce to the court any statement or thing used outside court to refresh his memory when his memory is revived.[24] This deprives the party against whom the evidence is led of a very important safeguard.[25] These are vital safeguards, Wigmore having written:
on a general principle that has in view the risk of imposition and false aids, against which the opponent is entitled to the means of protection, the writing must be shown to him on request. Furthermore, as by this opportunity of inspection the opponent is guarded against imposition clearly apparent, so by cross examination based on the paper he may further detect circumstances not appearing on the surface, and may expose all that detracts from the weight of testimony’.[26]
These safeguards are utterly lacking if a witness is permitted to refresh his memory out of court from a document which is not produced, is not inspected, may not be contemporaneous, and may not be an accurate account of the incident in question.
289. The New South Wales Law Reform Commission, however, has argued that the rule requiring production of the original of a document which does not truly revive memory is unmeritorious. It argues that:
it is easily evaded; how, except on a witness’ own statement, can it be determined whether the case is one of genuine recollection or not?[27]
It is suggested that, accepting that the distinction is unmeritorious, it does not follow that the party against whom the evidence is led should not be given the right to seek production of the document whether used in court or out of court and whether it revives the memory or not. That should be regarded as a vital safeguard.
290. An Anachronism. In civil trials a party calling for and inspecting a document in the possession of another party can be required to tender it by the other party. The rule appears to have developed at a time when discovery of documents was not generally available and trial by ambush was the accepted method of litigation. Research has not revealed any other justification for the rule. It can be argued strongly that the rule is no longer appropriate.
Discovery and interrogatories to some extent enable the parties to discover how each proposes to prove his case. It is difficult to see why a radical difference should exist between the consequences of inspection before the trial and inspection during it.[28]
291. Other Criticisms. Other points of criticisms include the following:
• There is doubt as to the precise circumstances in which the rule operates—how detailed must the inspection be? Is merely taking possession of the document without inspection enough?[29]
• It is difficult to see why an otherwise inadmissible document should become admissible simply because the party has called for it and inspected it:
In any event it seems to us very doubtful whether it is right that a party should be able to get a document before the court in this way when it may be impossible or difficult to find out who supplied the information contained in the document or what was his authority for doing so. The information might even have come from somebody incompetent to give evidence to the effect of the information.[30]
• It is difficult to reconcile the rule with the rule that a counsel may inspect a document used to refresh memory without being required to tender it.[31]
• The rule is inconsistent with the general scheme of the laws of evidence which determine whether evidence is admissible or inadmissible.
• It is difficult to argue that inspection during the trial confers such an advantage that the party inspecting should be forced to tender the document.
To the above may be added the criticism that it is unclear whether and to what extent the rule applies in criminal cases.[32] The New South Wales Law Reform Commission concluded, ‘it is difficult to see that the rule confers any benefit to the administration of justice’.[33]
292. Practice. No criticisms have been identified of the general bias against the use of leading questions. It is suggested, however, that the incorrect view is generally taken in practice that there is no discretion to permit the use of leading questions by a party when questioning its own witnesses. While parties will waive objections to leading questions directed to formal, introductory and undisputed matters, the matter is generally, in practice, in the hands of the opposing party.
293. The legislation in the Christmas and the Cocos (Keeling) Islands limits the court’s power to allow leading questions to introductory or undisputed matters or matters which have been sufficiently proved already. It may be said that it is too narrow in its statement of the first two grounds and requires a premature decision from the court in the case of third.
294. Limitations of the Law. Where a party calls a witness who gives evidence in part unfavourable to that party it is not possible for that party to effectively cross-question the witness unless the witness is declared ‘hostile’. In that situation it is unlikely that a witness will be declared ‘hostile’. The unfavourable evidence will usually be seen as indicating honesty. Further it is rare in any event for a court to declare a witness hostile. The law, therefore, can prevent such evidence being tested. This may adversely affect the fact-finding process and the fairness of the trial.
295. Another consequence is that the present law discourages the calling of witnesses. There are times where a patty’s cause would be assisted if that party could call the opposing party to give evidence. This is not usually done. The fact that the party, when called, cannot be cross-examined usually discourages any thought of calling the opposing party. That party can only be cross-examined if declared hostile. This is a difficult task at the best of times and especially so where the witness called is the opposing party. He will be expected to give evidence that does not support the party calling him. There are also occasions where highly relevant witnesses could be called to give evidence but neither party will do so because the witness will give evidence which supports both parties. As a result, the court will be deprived of relevant evidence. Such a witness will often be a most credible witness. It will be impossible to have him declared hostile. Yet if called by either party, it will not be possible for that party to test the witness’ evidence which is unfavourable to its cause. If, on the other hand, it were possible to test the unfavourable part of the evidence, one or other party may be willing to call that witness.[34] It is not surprising that the prosecution does not on occasions call all relevant witnesses when its right to cross-examine them is so limited.
296. A further disadvantage of the present law is that the Court may be deceived by a corrupt or dishonest witness and the party concerned may be prevented from revealing the deception.[35] A witness through malice or corruption may give false evidence and be prepared to lie plausibly about the reasons for changing his evidence from that which was expected. The party that called the witness, especially, if taken by surprise, will have great difficulty persuading the court that the witness is ‘hostile’. The disadvantages and dangers were recognised many years ago by Lord Chief Justice Denman who said:
... if the witness professing to be mine has been bribed by my adversary to deceive me,—if, having taught me to expect the truth from him, he is induced by malice or corruption to turn round upon me with a newly invented falsehood, which defeats my just right, and throws discredit on all my other witnesses,—must I be prevented showing the jury facts like these? Suppose that in some dispute happening in the street a by-stander declares his name to one of the contending parties, and his readiness to prove his conduct blameless; that he attends the solicitor and gives in his deposition to the same effect, but, when sworn in open court, takes part with the adversary. The question then is, whether he is to be believed, or the other witnesses called by the same party. ... It is clear that in civil cases the exclusion [of contradictory statements] might produce great injustice, and, in criminal cases improper acquittals and fraudulent convictions.[36]
297. The Rules Relating to Hostile Witnesses. A number of specific criticisms may be raised:
• Deciding whether a Witness is ‘Hostile’. This can be a very difficult question. The judge has to decide whether the witness is unwilling to tell the truth and to make that decision before all the evidence is before him. The Criminal Law Revision Committee commented:[37]
whether the witness has proved hostile; and it may be difficult for the court to decide this, especially if the witness, although he has in fact been induced to go over to the other side, takes care to give the impression that he is sympathetic to the party calling him and that it is only candour that prevents him from saying what would help that patty. Moreover in practice the fact that a witness has made a statement inconsistent with his evidence given in court is commonly treated as sufficient to establish that he is a hostile witness in the sense required by s 3 of the Act. ... Although there may be little doubt but that a person who goes back on his statement in this way is indeed lying in order to prevent the accused from being convicted, it seems difficult to regard the inconsistency as sufficient in itself to show that the witness is a hostile witness in the sense of s 3 of the 1865 Act.
• Judge Determining Credibility of the Witness. In deciding whether a witness is hostile or not, the trial judge must form a view as to whether the witness is willing to tell the whole truth in answer to non-leading questions. This is an issue which should not be decided finally until all the evidence is received.
• Circular Argument. It has been argued that to determine ‘hostility’ under the legislation by considering a prior inconsistent statement is a circular process.
If the witness in the opinion of the judge ... proves adverse, such party [that is, the patty producing him] may, by leave of the judge ... prove that the witness made at some other time a statement inconsistent with his present testimony.
It seems to be that by that language the Legislature ... has laid down a condition on the fulfilment of which a specified right may be exercised and without the fulfilment of which the right cannot be exercised, the condition being that the witness proves hostile, and the right being the right to prove a prior inconsistent statement. The Irish and Victoria cases that I have been discussing in effect lay down this proposition, namely,—Proof of the prior inconsistent statement satisfies in whole or in part the very condition upon which the right to give any evidence of that statement at all is founded. That type of reasoning, to my mind, moves in a circle and is fallacious.[38]
• Explanation of Prior Statement—Rebuttal. If the law is that a party cannot lead evidence to rebut an explanation of a prior inconsistent statement,[39] the law is defective. It would be a simple matter for a dishonest witness to give a false explanation.
• Consequences of Declaring a Witness Hostile. It is unclear whether evidence may be led of the bias of a hostile witness if bias is denied by the witness.[40] If the position is that it is not permissible, this is most unsatisfactory—’if bias exists it will probably explain why the witness is hostile, and if he is hostile he may deny the suggestion of bias’.[41]
• The ‘Great Blunder’. Under the New South Wales type of provision[42] it can be argued that a party may not contradict a witness who is merely unfavourable and not hostile. It should be amended to give effect to Greenough v Eccles[43]where it was held, despite the wording, that the provision did not have this effect.
298. The Witness Called in Error. At common law, the opposing party did not have the right to cross-examine a witness called by mistake by another party where the witness has no knowledge of relevant events.[44] Where, however, it is discovered that the witness knew other matters which it would be inconvenient to disclose it is not possible to withdraw him and avoid cross-examination.[45]
299. The New South Wales Law Reform Commission has criticised the distinction.
We think there should a right to cross-examination in both cases or neither. In both cases the mistake has been discovered before the examination in chief has begun, and in neither case do we see why the cross-examiner should be able to take advantage of this.[46]
300. Legislation. The State and Territory legislation is limited. Under it a court cannot disallow as ‘indecent’ or ‘scandalous’ question which relates to facts in issue unless it is intended only to insult or annoy or is ‘needlessly offensive’ in form. The Family Court has a discretion which appears to relate to the substance and not the form of the question. It is given guidance by that difficult expression ‘the interests of justice’. No criteria are given. There is no provision enabling the Family Court to control unfair questioning.[47]
301. Complaints are made from time to time of unnecessarily offensive and harassing cross-examination.[48] Such happenings may reflect inadequacies in the law. It may, however, indicate an unwillingness on the part of courts to exercise their powers or a lack of awareness of the power by the courts and practitioners.
302. Denial of Discretionary Control. There is a tendency to deny the existence of the discretionary power to control leading questions and to assume that leading questions may always be asked in cross-examination. Leading questions of witnesses favourable to the cross-examining party should be controlled in the interests of both accurate fact-finding and fairness. It would be helpful to expressly deal with the topic in legislation. If, however, the correct view of the law is that no such power exists, then there is a clear need to give the power to the courts.
303. R v Jack.[49] In that case it was held that the cross-examiner must tender a prior written statement of a witness if it is placed in his hands for the purpose of cross-examination. This needs to be corrected. The authority relied upon in that case were cases which predated the legislation. The concern of the courts in those cases was that the cross-examining party should not be allowed to indulge in ‘tricky’ practices:
For instance, suppose the witness to have made precisely the same statement in court with that contained in his deposition, and the counsel to put the deposition into his hand, and to ask him whether he still persisted in the statement which he had just made in court; the witness to do so; in that case the jury would naturally conclude that the statement and the deposition materially differed, and, unless the deposition was used in court, they would remain under that false impression, and give their verdict under a complete misconception of the facts.[50]
Under the existing legislation, however, the judge has the power to require production for his inspection and he then may make such use of the document as he thinks fit. There appears to be no need to maintain the ruling given in R v Jack.
304. Inability to Inspect. The party who called the witness is not entitled to see the document placed by the cross-examiner in the witness’ hand merely because questions are asked about its general nature or identity.[51] On the other hand, where a witness refreshes his memory from a document, the opposing party may see that document. This distinction appears artificial. The concern for accurate fact-finding and fair procedures justify a right to view the document in both situations.
305. Inconsistency Admitted. One may criticise the limitation that the prior statement may not be received in evidence where the inconsistency has been admitted. There is authority that, because the purpose of discrediting the witness has been achieved, the document or relevant portion of it may not be admitted as evidence going to credibility.
306. Cross-examination on Collateral Matters. The legislation of Queensland, Victoria, South Australia, the Northern Territory and the Christmas and Cocos (Keeling) Islands applies to cross-examination relating to the subject-matter of the case not collateral matters. Thus while it was intended to overcome the rule in the Queen’s Case,[52] it is arguable that it has not done so where the cross-examination is directed to collateral matters—eg bias. The essence of the rule is that:
The cross-examination of a witness upon his document is allowable subject to two conditions, viz:(i) that the document is first shown to the witness;
(ii) it is put in evidence by the cross-examiner as part of his case.[53]
Where the witness admitted that the statement was his, the cross-examining party was not obliged to enquire whether there was any explanation of the inconsistency. If the witness did not admit that the statement was his, the cross-examining patty was entitled to prove by another witness that the statement was that of the witness.[54] There are three principal disadvantages in the common law rule.[55]
(a) The cross-examiner is deprived of the chance to surprise the witness.
(b) The cross-examining party is obliged to read the statement as part of that party’s evidence. This could affect the order of counsel’s speeches. In addition, on occasions the cross-examiner will not want to put the entire statement in evidence and properly and fairly wish only to test one aspect of the witness’ evidence by reference to a prior statement.
(c) The rule was unfair to the witness in that the cross-examiner was not obliged to give the witness an opportunity of explaining any inconsistency.
307. The Rule in the Queen’s Case.[56] This rule also controls cross-examination on statements of persons other than the witness. A number of criticisms may be made:
• The rule required that the practitioner must show the document to the witness before the witness can be cross-examined at all on it. This has been abolished in relation to the witness’ own statements and should be abolished where the statements of others are involved.
• It has been argued that the witness cannot be asked if he agrees or disagrees with the particular statements contained in the document whether the document is admissible or not.[57] Such a rule lacks point where the document is admissible. It is suggested, however, that the better view of the law is that, provided the document is admissible and it is intended to tender it, the witness may be questioned on its contents.
• It has been argued that it is undesirable that without identifying a document which is inadmissible, a witness may be asked to look at it and be asked whether he adheres to his testimony.
No question should be put to witnesses about inadmissible documents unless they are parties. It seems undesirable to have a system where documents are handed around the courtroom without the jury hearing of their contents directly because of a rule of admissibility, but with the possibility open of their drawing inferences as to the contents, particularly where counsel has hinted at or summarised their contents.[58]
On the other hand, it may be argued that the rule creates difficulties only when it is abused. Provided reasonable care is taken not to identify the document, and provided the witness is warned not to say anything about the content of the document, there is no real danger of the tribunal of fact being able to draw any inferences from the document or the questions.[59]
• There is authority that a party may be asked to make admissions about the contents of a document known to him but not produced and not his own.[60] This exception should be extended to admissions by any witness. However, an admission should only be sought from the witness if the documentary statement would thereby be rendered admissible. This would presumably apply to witnesses such as the managing director of a company.[61]
308. Criticisms. There appear to be areas of uncertainty both as to the scope of this rule that requires the cross-examiner to put his client’s case to the witness and its consequences.[62] It is suggested that while the narrow formulation is too limited there can never be any need to do more than put the substance of the case to a particular witness. As to the uncertainty about the consequences of breach of the rule, this may be inevitable because of the infinite variety of circumstance in which the question may arise. So far as evidence law is concerned, the important issue would appear to be what inferences should be drawn from a failure to cross-examine. Should the failure to cross-examine simply be something that may affect the weight to be given to the evidence’? Should an inference be drawn that the party admits the facts’? Or should no inference be drawn’? No hard and fast rule can be laid down and therefore such uncertainties must persist.
309. Distinction Between Use as Evidence and Use in Considering Other Evidence. If a view may be used to decide between conflicting bodies of evidence,[63] there is no meaningful distinction between such a use and using a view as evidence itself. If it may be used to decide between other evidence, this is because the inferences to be drawn from the things observed at the view tend to support one version of the facts rather than another, because the things observed provide evidence in favour of one version rather than the other. Material which allows a court to prefer one version of events over another must necessarily be itself evidence.
310. Distinction Between (Simple) View and Demonstration. The courts have not defined the difference between these two concepts, except by furnishing examples of each and stating that one was ‘evidence’ while the other was not. Clearly, the distinction is based on a static/dynamic dichotomy, but it is not clear how this justifies the refusal to call a view evidence.
311. Distinctions Illogical. If a thing is too large to be brought into court, then a ‘view’ of it is not evidence. But if it is movable, and can be brought into court for observation by the tribunal, there is no doubt that it constitutes real evidence. It is difficult to justify this difference in approach.
312. Unrealistic. If a view is held and the tribunal of fact becomes aware of relevant material from its own observation, it is not realistic to expect it to avoid consideration of such knowledge. It is unlikely the view will be treated differently from other facts brought to the attention of the tribunal of fact.
[1] eg Law Reform Commission of NSW, Working Paper, The Course of the Trial, Government Printer, 1978. Sydney, para 1.12.
[2] GM Whipple, ‘The Observer as Reporter—A Survey of the Psychology of Testimony’ (1909) 6 Psychololgical Bulletin 153; WM Marston, ‘Studies in Testimony’ (1924-5) 5 Journal of Criminal Laws, Criminology and Police Science 5: KH Marquis, J Marshall, & S Oskamp, ‘Testimonial Validity as a Function of Question Form, Atmosphere and Item Difficulty’ (1972) 2 Journal of Applied Social Psychology 167.
[3] See generally JA Gobbo, D Byrne, JD Heydon, Cross on Evidence, 2nd Aust edn. Butterworths. Sydney, 1979 Para 18.143; Law Reform Commission of NSW, para 21.2; Filios v Moreland (1963) 63 SR (NSW) 331; Dairy Farmers Co-Operative v Acqualina [1963] HCA 59; (1963) 109 CLR 458.
[4] Filious v Moreland (1963) 63 SR (NSW) 331, 332.
[5] Commission of inquiry into Poverty, Law and Poverty in Australia, 2nd Main Report, AGPS, Canberra, 1976, 227.
[6] V Menart, Submission, (24 October 1978) and T Sobolewski, Submission (24 December 1980).
[7] For text of this submission by V Menart see Law Reform Commission of NSW, para 21.2.
[8] Australian Institute of Multicultural Affairs, Evaluation of Past-Arrival Programs and Services, Globe Press, Melbourne, 1982, 266. See also Z Szramka, ‘Justice in a Multicultural Society—A Practical Perspective of the Problems That Migrants Face’, in Proceedings of Seminar on Language and Cultural Issues Affecting the Practice of Law in Tasmania, Ethnic Communities Council of Tasmania Inc (1982) 20, 21.
[9] Law Society of Queensland, Submission (6 September 1982); Szrama, ibid.
[10] Royal Commission of Inquiry into Poverty, citing R v Burke (1858) 8 Cox CC 44, 46-70.
[11] Gaio v R [1960] HCA 70; (1960) 104 CLR 419, 421.
[12] Filious v Moreland (1963) 63 SR (NSW) 331, 332-3.
[13] R Dixon, A Hogan & A Wierzbicka, ‘Interpreters: Some Basic Problems’ (1980) 5 LSB 162, 163.
[14] See generally Dixon et al, 163-4.
[15] id, 164.
[16] See generally Dixon et al.
[17] Szramka, 18, referring to Commonwealth Inquiry into the Legal Needs of the Poor.
[18] Commission of inquiry into Poverty, 229.
[19] Law Reform Commission of NSW, 23. In New Zealand, the Court of Appeal adopted the rule that the document was admissible: R v Naidanovici [1961] NZPoliceLawRp 24; [1962] NZLR 334.
[20] Law Reform Commission of NSW, 24.
[21] WB Campbell, ‘Recent and Suggested Reforms in the Law of Evidence’ [1967] UWALawRw 4; (1967) 8 UWAL Rev, 61, 71; Law Reform Commission of NSW, ibid.
[22] Law Reform Commission of NSW, ibid.
[23] cf remarks of Travers J in Hetherington v Brooks [1963] SASR 321, 325.
[24] See Appendix C, para 27.
[25] Sir Clifford Grant, ‘Refreshing the Memory of Witnesses in Criminal Trials’ (1980) Paper delivered at the Stipendiary Magistrates Conference. WA, 1980.
[26] JH Chadbourn (ed) Wigmore on Evidence, Little Brown & Co, Boston, 1970, vol 3, para 762.
[27] Law Reform Commission of NSW, para 2.1.
[28] Law Reform Commission of NSW, para 18.2.
[29] ibid.
[30] Criminal Law Revision Committee of England, 11th Report Evidence (General) HMSO, London 1972, para 223.
[31] Senat v Senat [1965] P 172.
[32] See R v Weatherstone (1968) 12 FLR 14. It was held to not apply in NSW where the accused called for depositions, in part because legislation entitled the accused to do so—query other documents.
[33] Law Reform Commission of NSW, para 18.2.
[34] cf Ziems v Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279; Richardson v R [1974] HCA 19; (1974) 131 CLR 116; Caltex Oil v The Dredge ‘Willemstad’ [1976] HCA 65; (1975) 136 CLR 529, 582.
[35] Justice, ‘The Truth and the Courts’ Written Evidence to the Royal Commission on Criminal Procedure (Part 2) London, 1980, 2.
[36] Wright v Beckett (1834) 1 Moo & Rob 414, 425-6.
[37] Criminal Law Revision Committee of England, para 164.
[38] Wawanesa Mutual Insurance Co v Hanes [1961] OR 495, 520 (Roach JA).
[39] See Appendix C, para 39.
[40] Law Reform Commission of NSW, para 6.1, where the view is expressed that this is not possible. See also R v Hunter [1955] VicLawRp 56; [1956] VLR 31 (‘probably’ cannot). See AW Bryant, ‘The Statutory Rule against Impeaching One’s Own Witness’ (1983) 33 U Toronto LJ 108, 113.
[41] P Waight, Submission (29 July 1982).
[42] It operates also in Western Australia, the Northern Territory and South Australia.
[43] [1859] EngR 335; (1858) 5 CB (NS) 786, 806 (Cockburn CJ); 141 ER 315 where the drafting was described as a ‘great blunder’.
[44] Wood v MacKinson (1840) 2 Moo & Rob 273.
[45] For further discussion and authority see Law Reform Commission of NSW, para 7.4.
[46] ibid.
[47] It would have to be argued that the judges of the Family Court have a general power to control the proceedings pursuant to which they could control such questions: Re Mundell (1883) 48 LT 776 and Law Reform Commission of NSW, para 7.5; Mooney v James [1948] VicLawRp 57; [1949] VLR 22, 28; Federal/Provincial Task Force of Canada, 273, citing R v Bradbury (1973) 14 CCC (2d) 139, 140 and R v Rowbotham (1977) 2 CR (3d) 293. Arguably it was also implicit in Mechanical and General Inventions Co v Austin [1935] AC 346, 359.
[48] Two reported cases are Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 and Mechanical and General Inventions Co v Austin [1935] AC 346.
[49] [1894] NSWLawRp 33; (1894) 15 LR (NSW) 196.
[50] R v Ford (1851) 2 Den 245, 248 (Alderson B). See also Law Reform Commission of NSW, para 9.6.
[51] Collier v Nokes [1849] EngR 1119; (1849) 2 C & K 1012, 175 ER 426: Law Reform Commission of NSW, para 9.7.
[52] [1820] EngR 563; (1820) 2 Brod & Bing 284, 129 ER 97.
[53] HH Glass (ed) Seminars on Evidence, Law Book Co, Sydney, 1970, 136.
[54] Cross on Evidence, para 10.53.
[55] Cross on Evidence, para 10.53. See also Wigmore on Evidence Vol 4. para 1259.
[56] See Appendix C, para 47.
[57] Law Reform Commission of NSW, para 9.11-19.15, 124-127.
[58] JG Starke, ‘Cross-examination Based on Documents’ (1945) 19 ALJ 262; Glass, 136. The authority cited, North Australian Territorv Co v Goldsborough Mort & Co ( [1893] UKLawRpCh 39; 1893) 2 Ch 381, however, relates to the use of a document that could not be admitted in evidence.
[59] Law Reform Commission of NSW, para 9.14.
[60] Atchin v Commissioner for Railways [1935] NSWStRp 23; (1935) 35 SR (NSW) 498, 508; AF Rath, ‘Problems Arising Out of the Tender of Part Only of a Conversation or Documents’ in Glass, 90. See also Editor’s Note in Glass, 110, 136.
[61] Law Reform Commission of NSW, 173 and para 9.14.
[62] Appendix C, para 50.
[63] Appendix C, para 311-2.
313. Narrow View of Relevance. On one analysis some evidence which is categorised as ‘irrelevant’[1] is admissible. This approach renders difficult a rational approach to the admissibility of evidence. The principle that forbids receiving anything that is irrelevant is part of the very conception of a rational system of trial determination. If relevance is narrowly defined in terms of the ‘facts in issue’, so that evidence relating, for example, to witness competency or credibility, is treated as irrelevant, but admitted under a ‘rule of extension’, unnecessary confusion is created. The preferable approach, and, indeed, the approach favoured by the weight of authority, is to define relevance more widely, so that evidence need not relate directly to the ‘facts in issue’ but to any matter in issue in the litigation.
314. Alternative Formulae. A number of criticisms can be levelled at the alternative formulae sometimes used to define relevance:
• The Will’s Approach—Relevance via a ‘Transaction’.[2] If evidence, to be relevant, must have ‘a bearing’ on the issues in the case, it is not difficult to see why some lawyers have defined relevance in terms of a connection with the ‘transaction’ in issue. There is no real doubt that such evidence is relevant. But, in practice, this approach cannot provide an exclusive definition of relevance.
To attempt to confine the evidence to transactions or facts in issue and the surrounding details of those transactions or facts is to exclude some evidence of strong probative value. unless the definition of ‘surrounding details’ is widened in such a way as to include any facts having logical probative value, when the expression becomes meaningless.[3]
• ‘Render Fact Probable’. This standard is unrealistically high as a general test of relevance. It tends to confuse relevance with sufficiency, or weight. Care must be taken to distinguish a relevance determination from a ‘no case to answer’ (or sufficiency) determination. The former decides whether a particular piece of evidence ‘has a bearing’ on the matters in issue. The latter concerns a submission made after a patty has completed presentation of evidence and determines whether a prima facie case has been established—whether that party has discharged the evidential burden, in respect of matters in issue, to the required standard of proof. To require that the evidence render a fact probable to be regarded as relevant is to introduce a standard equivalent to that required at the ‘no-case’ stage. As McCormick says—a brick is not a wall.[4]
The standard of ‘render probable’ also ignores the nature of circumstantial evidence. The characterisation of evidence as ‘direct’ or ‘circumstantial’ points to the kind of inference which is sought to be drawn from the evidence. In a murder trial direct evidence would be eye witness testimony of the accused’s actions—if believed, the evidence resolves the material issue. Direct evidence is therefore, by definition, relevant since it is not the trial judge’s function to assess the reliability of the witness at that stage. Evidence that the accused had, before the murder, expressed an intention to kill the victim is direct evidence of the earlier stated intention but only circumstantial of the material issue—whether he murdered the victim. It provides a basis from which the trier of fact may, with other evidence, make inferences about the material issue. Circumstantial evidence is usually introduced item by item, and it is the cumulative effect of all the evidence from which a finding of fact is made. But its relevance cannot depend upon it rendering a material proposition probable or improbable—individual items of circumstantial evidence, on their own, rarely render a material proposition probable.
Judge Learned Hand, writing of certain prosecution evidence, said:
Its relevancy really did not, and indeed could not, demand that it be conclusive; most convictions result from the accumulation of bits of proof which taken singly would not be enough in the mind of a fair-minded person. All that is necessary, and all that is possible, is that each bit may have enough rational connection with the issue to be considered a factor contributing to an answer.[5]
Circumstantial evidence, of course, can be considered with other circumstantial evidence already admitted, so that it may well, near the end of the trial, satisfy the requirement of rendering a proposition probable. But the effect of the test would be to require that the evidence to be relevant possess a higher probability value at the beginning of the trial than when offered near the end, when the other evidence has been presented.[6]
• A Threshold Degree of Probative Value. According to the ‘remoteness’ approach to relevance, a mere logical relationship between the tendered evidence and a material proposition is not enough to justify admission. There must be something more, some ‘plus value’.[7] Weinberg supports this analysis as one ‘which treats the concept of relevance as an empirical criterion ... a discretion based on empirical probabilities’.[8] But a number of criticisms may be made of the approach. One is that it, like the preceding approach, has a tendency to confuse the question of whether evidence is relevant with the question of whether it is sufficient to establish a prima facie case. This problem has already been considered. It also provides no idea of the threshold level of probative value which must be attained for evidence to be relevant. Some require it to be ‘plausible’,[9] others to have ‘a clearly sufficient degree of value’.[10]
A further criticism is that no indication is given in such an approach of policy considerations being the basis for exclusion. Low probative value or lack of strategic significance[11] do not by themselves justify a decision to exclude evidence. Items of low probative value may, in combination with each other, make a very strong case which cannot otherwise be made. But the combination of low probative value and low importance may well justify the court in considering other values which exclusion of evidence might promote. GF James asked why evidence of low probative value is excluded as irrelevant:
A possible answer would be simply because it is weaker- too weak. Although logically relevant, it falls short of the minimum requirement of legal relevancy. Such an answer merely raises a further query. Why should there be a standard of ‘legal relevancy’ more strict than, or in any respect different from, the standards of logic’? Why exclude any data which if admitted would change the apparent probabilities and hence serve, even to a slight degree, to aid the search for truth’? Justice Holmes suggested one answer, it is ‘a concession to the shortness of life’—and perhaps to the shortness of purse of harassed litigants. If any and all evidence may be admissible which ... would operate to any extent to alter the apparent probability of some material proposition, the field of judicial inquiry in most cases would be almost unlimited. Trials would come to an end only by the exhaustion of lawyers’ ingenuity or clients’ money, and the trial judge or jury might be overwhelmed and bewildered by the multiplicity of collateral issues. ... In addition ... other practical considerations may justify the exclusion of relevant evidence of but slight probative weight. As noted above, evidence is irrelevant in the clearest sense if its tendency is to prove some proposition not properly proveable in the action. Sometimes the same evidence may be remotely relevant to a material proposition and directly relevant to an immaterial one: in such a case its exclusion could be justified lest the jury be misled into deciding the case on the immaterial issue.
To conceal these issues within a concept of sufficient relevance can only confuse. In the first place, it defies definition. No statement of a standard of probative value higher than logical relevancy can be made precise enough for use without excluding much evidence which is used daily, without argument and to good effect. And there is a definite reason for this. When a judge must decide whether a particular item of evidence, logically relevant, is of sufficient force to justify the time and expense necessary to establish it, he should not confine his attention to the effect of the offered evidence alone. ... He should consider how the offered evidence may fit in with other evidence. It may form a small but useful part of a pattern of proof. It may stand alone, lending its negligible aid to unconnected lines of proof. It may be merely cumulative, so that the trouble of establishing it will result in little of practical value. He may even want to consider the importance to the parties of the issues being tried, in the light of mounting trial expense. Such considerations cannot usefully be reduced to a simple formula for relevancy of particular items of evidence.[12]
315. Accepting that evidence of some probative value is often excluded for good policy reasons, the concept of ‘legal relevance’ does nothing to articulate the real nature of the judicial decision-making process involved nor the factors which a judge should consider in making his decision. The trial judge is involved in a complex discretionary balancing procedure, and to call it a relevance determination merely disguises the reality. Thayer was emphatic in his conclusion:
The law of evidence undoubtedly requires that evidence to a jury shall be clearly relevant, and not merely slightly so: it must not barely afford a basis for conjecture, but for real belief: it must not merely be remotely relevant, but proximately so. Again, it must not unnecessarily complicate the case, or too much tend to confuse, mislead. or tire the minds of that untrained tribunal, the jury, or to withdraw their attention too much from the real issues of the case. Now in the application of such standards as these, the chief appeal is made to sound judgment: to ... the discretion of the judge ... In such cases it is a question of where lies the balance of practical advantage. To discuss such questions ... on the bare ground of relevancy,—even if we introduce the poor notion of legal relevancy, as contrasted with logical relevancy,—tends to obscure the nature of the inquiry. There is, in truth, generally, no rule of law to apply in answering such questions as whether the evidence, although probative, is too slight, conjectural, or remote: or whether it will take too much time in the presenting of it, in view of other practicable ways of handling the case: or whether it will complicate and confuse the case too much.[13]
The concept of legal relevance provides no assistance to a trial judge in performing his task, giving no idea of the factors which may be legitimately considered and balanced, indeed it positively misleads him into oversimplifying the task he is confronted with. The two issues should be distinguished relevance and discretionary exclusion. The former determines whether evidence could relate to an issue, the latter whether the importance of that relationship is worth the price to be paid by admitting it in evidence.
316. Subjective Test. It is inappropriate to determine relevance by a subjective test.[14] Relevance exists only as a relation between the evidence and a matter in issue. Whether the relationship exists depends on principles evolved by experience or science, applied logically to the particular situation. Whenever evidence is held to be relevant, the decision is based upon a premise, usually not articulated, of which the court will take judicial notice[15] or upon common sense’,[16] based on experience, rather than on mathematically precise logic or experience. It may be concluded that two people, or groups, may have different, but equally rational, views of the relevance of a piece of evidence, depending on their prior experience and conceptions. In a jury case, the experience of jurors may be quite different from that of the trial judge, and consequently their assessment of ‘relevance’ and probative force may vary from his. Therefore, so long as a juror’s assessment of the probabilities in the case might be rationally affected by the proffered evidence, then it is relevant. The trial judge may be doubtful about the probative force of the evidence and yet should admit it because the jury may rationally assess probative force differently from the way he does. That does not mean the jury is acting irrationally or emotionally, but only that they are utilising their own experience to supply and evaluate appropriate hypotheses of proof.
317. Relevance Detailed. The Singapore Evidence Ordinance, which applies in the Christmas and Cocos (Keeling) Islands, is based on Stephen’s Indian Evidence Act (1872). It attempts to detail particular kinds of relevant evidence. For example, evidence showing the circumstances surrounding a ‘fact in issue’, showing identity or time, intention or knowledge, is declared relevant in certain circumstances. Section 11 then provides a general test of relevance for any other evidence, requiring that it make a fact in issue ‘highly probable or improbable’. This general test has already been considered,[17] but it suggested that the attempt by Stephen to elucidate in detail particular types of relevant evidence, while providing a useful guide, tends to be misleading. Since relevance is largely a matter of logic and experience, and since the variety of relevance problems is co-extensive with the ingenuity of counsel in using circumstantial evidence as a means of proof, it is suggested that any attempt to detail the kinds of relevant evidence is doomed to failure. Questions of relevance cannot be resolved by mechanical resort to legal formulae. In the circumstances of each case, the judge must be allowed flexibility in evaluating the probabilities on which relevance turns.
No examination, however full, of the nature of relevance, can ever provide ‘practical help’ to enable anyone to determine whether one fact is relevant to another ... No definition of relevance can set out the infinite number of empirical propositions on whose existence the relevance of facts depends ... there is no ‘relevance in the air’. Evidence may be relevant to one fact and irrelevant to another, it may be relevant to many facts ... the categories of relevance are never closed.[18]
318. Stephen’s use of the term ‘deemed to be irrelevant’ to cover Thayer’s ‘relevant but inadmissible’ obscures the nature of relevance and its relation to admissibility. While perhaps having the merit of simplicity, the usage is clearly distracting, labelling as irrelevant much evidence which is rationally probative and obscuring the reasons for the exclusion of probative evidence. It is of no predictive value in determining whether a proffered item of evidence will be treated as relevant or not.[19] Wigmore considered that Stephen’s generalisation was either incorrect, ‘or the term Relevancy must be diluted so as to lose any standard meaning ‘of its own’.[20]
ENDNOTE
[1] See R Eggleston, Evidence, Proof and Probability, 2nd edn, Weidenfeld & Nicolson, London, 1983, 58, 74, where a scheme of the law of evidence is set out in which ‘Rules of Extension’ admit ‘irrelevant evidence’: ‘(i) Evidence bearing on competence or credibility, (ii) Surrounding detail, (iii) Facts ‘deemed to be relevant’.’
[2] W Wills, The Law of Evidence, 3rd edn. Stevens & Sons, London, 1938, 3-5.
[3] R Eggleston, ‘The Relationship between Relevance and Admissibility in the Law of Evidence’ in HH Glass (ed) Seminars on Evidence, Law Book Co, Sydney, 1970, 59.
[4] EW Cleary (ed) McCormick’s Handbook of the Law of Evidence, 2nd edn, West Publishing Co, St Paul, Minn, 1972, 436.
[5] US v Pugliese 153 F 2d 497, 500 (1945).
[6] See HL Trautman, ‘Logical or Legal Relevancy—A Conflict in Theory’ (1952) 5 Vand L Rev, 385, 390.
[7] See ‘The Admissibility of Evidence of Similar Facts—A Re-examination’ in Z Cowen & PB Carter, Essays on the Law of Evidence Oxford University Press, London, 1956, 106.
[8] MS Weinberg, ‘The Judicial Discretion to Exclude Relevant Evidence’ (1975) 21 McGill LJ 1, 10-11.
[9] Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367, 391 (Evatt J).
[10] JH Wigmore, A Treatise on the Anglo-American System of Evidence, 3rd edn. Little, Brown & Co, Boston, 1940, vol 1, para 12 (Wigmore on Evidence).
[11] ie the importance of an item of evidence to a party, independent of its probative value. For example, if it is the only evidence relating to an element of the cause of action.
[12] GF James, ‘Relevancy, Probability and the Law’ (1941) 29 Calif Law Rev 689, 700-702.
[13] JB Thayer, A Preliminary Treatise on Evidence at the Common Law, Little, Brown & Co, Boston. 1898, 5108 (Reprinted 1969 by Rothmans Reprints, New Jersey).
[14] Does the evidence affect the probabilities as against could the evidence reasonably do so.
[15] eg in Cooper v R [1961] HCA 16; (1961) 105 CLR 177, 184, a prosecution for sedition, it was sought to tender evidence to show that the accused was a communist, an atheist and hostile to missionaries. The High Court rejected the evidence as irrelevant, with the comment: ‘it was apparently hoped that the tribunal would judicially notice that people who dislike missionaries are likely to publish seditious words’.
[16] ‘The judgments of commonsense or common experience are what is relied upon’—Jones v Sutherland Shire Council [1979] 2 NSWLR 206, 222, 224-5 (Mahoney JA).
[17] See above, para 314 (‘Render fact probable’).
[18] JL Montrose, ‘Basic Concepts of the Law of Evidence’ (1954) 70 LQ Rev 527, 538-40.
[19] Weinberg, 9-10.
[20] Wigmore on Evidence, para 12.
319. Inflexibility. The rule that the original must be produced unless it cannot be produced is too inflexible:
• No notice to produce given. Notice to produce the original can be given to the opposing party to ensure that secondary evidence can be given of any writings in the possession of that party if it refuses to produce the original. If notice is not given, however, it is possible for the party possessing the original to object to the tendering of secondary evidence of the writing. This is so even though the writing may have been mentioned in the pleadings, for example, and may be so regardless of whether the parties might have expected the writing to be the subject of evidence in the proceedings. It is only in relation to writings which are themselves notices, or where the writings themselves are a central issue in the proceedings, that notice to produce is not required.[1]
• Importance of the Writing. The rule operates no matter how unimportant the writing may be. It may relate to a collateral issue and not be seriously in dispute. Nonetheless, a party can object to secondary evidence of it being given if its absence is not accounted for satisfactorily.
• Authentication of the copy. Evidence is required whether the writing is important or not, despite the obvious authenticity of the copy, and regardless of whether there is a genuine need to have such evidence.
320. Better Alternatives. Cleary and Strong have argued that one of the justifications for the common law requirement—the risk of inadvertent error in copying—is no longer applicable where the copy produced is a photocopy produced by modern automatic copying methods.[2] They also argue that another justification for the requirement—the prevention and detection of fraud—can be met by proper discovery and inspection procedures which will allow the party against whom the writing is led to check the accuracy and completeness of the copy and authenticity of the original.[3] They argue that it is not necessary to have a blanket rule to deal with the few situations where it is desirable that the court should have the original—eg, an agreement, will or deed. It would be enough for the court to have power to direct the production of the original where there was a genuine dispute about the original, or where it was important for the court to peruse the original.
321. Modern Technology. The application of common law rules has given rise to a number of difficulties in proving the contents of writings contained in modern photocopies and microfilm:
• The Original Documents in Existence. Many organisations keep their records in copy form using these techniques. Microfilming, in particular, results in large cost savings by reducing storage costs and making retrieval of records easier.[4] Tax, company and other legislation, however, requires that original business records be retained. As a result, the original writing will often be in existence at the time of the trial. Where this is so, the common law would require the original to be produced. It may, however, be difficult and costly to find it and to get it to court whereas the business could easily and cheaply produce the copy records.
• Evidence Authenticating the Copy. The common law requires evidence authenticating the copy. Strictly, this evidence should be given by a person who examined the copy and the original, or who can give evidence of the accuracy of the machine when it made the copy. Such persons may not be available to give evidence. This can be a particular problem for large organisations seeking to prove the contents of records upon which they rely from day to day. The relevant persons may have left the business or government department and it may not be possible to find them. Even, if they can be found, they are unlikely to remember. Calling each person as a witness can be a costly and inconvenient exercise which in many, if not most, cases is not really needed.
• Tapes and Transcripts. If the correct view is that the common law rules apply to tapes, it has the most undesirable consequences that a transcript cannot be admitted in evidence—unless the parties agree. Where the transcript is not admitted, a great deal of time is wasted finding the required portion of the tape recording.
322. The ‘Public Document’ Exception. The definition is unclear and limited. It would prevent secondary evidence being given of many public records where it would be inconvenient and unnecessary to produce the original.[5]
323. Reproductions Legislation. The legislation is intimidating in its length and detail.[6] The Commission has been told that lawyers, when asked to interpret the legislation for clients, have offered different opinions about its meaning. Considering the limited nature of the common law difficulties, the legislation is remarkable for its size and complexity:
• Practical Difficulties of the Legislation. The legislation requires people who are maintaining microfilm records to introduce complex and detailed systems to ensure that they comply with the legislation. While this will have the advantage of preserving the testimony needed to prove the unavailability of the original and the accuracy of the microfilming, it must add to the cost of the operation and, where affidavits are to be sworn, requires the operators to fill out affidavits and find someone before whom the affidavit can be sworn. This discourages many people from using microfilm systems.[7] Another impracticality is the requirement, where an affidavit is used to prove that the negative or transparency was made in good faith, that it state the condition of the document at the time the copying was done with respect to its legibility and the extent of any damage to the document. With present microfilming equipment and procedures designed to copy large numbers of documents at extremely high speed, it is quite impractical for the operator to examine each document immediately before it is photographed. In fact, to have to do so would defeat the object of having the equipment. People in the microfilming industry have advised that about 90 per cent of users fail to meet the requirements of the legislation. The Tasmanian Law Reform Commission commented:[8]
It would impracticable to provide for an affidavit to be made for the purposes of this section because of the difficulties of having a justice of the peace on hand at the necessary times to take the affidavit. The committee’s objection to having an affidavit is particularly relevant in the case of the work of the State Microfilm Bureau where thousands of several types of documents are copied every day. The provisions of subsection (2) have also been revised and simplified to make less onerous the requirements as to matters required to be covered by certificates. In the draft considered by the sub-committee, these provisions were regarded as being too difficult to comply with in relation to the photocopying of a series of documents and indeed in many cases impossible to carry out. For example, the operator of a photographing machine would often be unable to indicate whether or not a document copied by him was itself a reproduction. The requirements that the operator should state the condition of such a document with respect to its legibility and the extent of any damage to the document are impracticable if he is copying a large number of documents and working at such a speed that he would not have time to examine them.
The Tasmanian Law Reform Commission[9] also argued that the section enabling one affidavit to be used for a series of reproductions is impractical in that it requires:
― the series of documents to have ‘serial numbers in arithmetical order’; and
― the series to be photographed ‘in their proper order’; and
― ‘the same distinctive identification mark’ on each document, rather than the same kind of identification mark.[10]
The Commission also criticised the requirement in the legislation that copy affidavits be certified by corporate officers, a justice or a Commissioner. It commented:[11]
The committee does not consider that this requirement is necessary because certification would be so time consuming as to be unworkable. Generally, the product of untrue reproduction would be self-evident and certification would not add anything to the authenticity of a copy of the relevant affidavit or certificate.
The affidavit system is particularly cumbersome for jacket and updatable systems where frames are added from time to time over sometimes long periods.[12]
• Technicality of Definitions. It has been put to the Commission that microfilm produced by laser and other techniques which do not produce a negative are outside the reproduction legislation and that this is undesirable. The problem arises because of the detailed definitions. The definitions refer to negatives and photographs. In New South Wales, Queensland and Tasmania, the definitions also include a ‘positive photograph’ but it must be made in a particular way—by light reflected from, or transmitted through, a document. This highlights the need for flexibility in any legislation and the danger of definitions that are too technical.
• The ‘Approved’ Machines System. The advantages of the ‘approved’ machines provisions are—it is possible to tender a print from a transparency made by such a machine though the original is still in existence; a series of documents can be copied and referred to in the one affidavit as photographed as part of the series; two affidavits are required rather than three (required in the case of machines which have not been approved).[13] However, except in the case of certain bodies,[14] it is not possible to use the legislation to tender a reproduction from a transparency made using an approved machine unless the document reproduced has been kept in existence for 12 months.
The reasoning behind the ‘approved machine’ provisions appears to be that machines will be approved if they copy accurately and if they operate in such a way to minimise the risk of interference with the copying process. The reality is, however, that people are unlikely to use machines that do not copy accurately and, in fact, the accuracy of the machine is the least of the worries. Further, interference with the copying by, for example, tampering with the film is extremely difficult. It would involve scraping or the use of chemicals and the part removed would be obvious. With fine tools it might be possible to paint in new characters. All such operations would have to be done with the help of reading equipment. One type of microfilm—updatable microfilm—is more vulnerable. It uses a process similar to the xerographic process. Parts of the film can be processed at different times. The process involves placing the material in contact with the film and passing an electrical charge through it. The charged microfilm is then passed through a graphite toner. It is possible to remove the characters and replace them but the task would still be difficult. The real opportunity for fraud or deception lies in tampering with the document which is copied. The approval of a machine can never cope with this problem. This is a potential problem that exists with all reproductions, whether they are photocopies, microfilm, carbon or written copies. These provisions seem to be a gesture made to ease our anxiety about the tendering of reproductions. The provisions do not simplify the proofs of evidence required to any great extent.
The Tasmanian Law Reform Commission argued against the ‘approved machine’ system,[15] stating that it served ‘no good purpose’. It commented:
Administrative impracticabilities and difficulties would be created if the Bill provided for approval of machines of this kind, especially during a period of rapid technological change.
This comment has been borne out in the differences between the States as to machines approved.[16] A result of the existence of the authorisation procedure, so the Commission has been informed, has been that people are reluctant to introduce microfilming systems which are not ‘approved’ even though to do so would still be to their advantage. There is, apparently a mystique that attaches to ‘approval’.
• The Legislative Restrictions. The requirements that a reproduction shall not be admitted as evidence unless the transparency is in existence and unless the document reproduced was in existence for a period of at least 12 months after the document was made, severely limits the benefits of the reproductions legislation. There is no flexibility built into the provision. If, for example, a transparency is accidentally destroyed or, within the 12 months period, the original is accidentally destroyed, the party seeking to tender the reproduction will not be able to use the affidavit procedure and rely upon the evidence that it has preserved. The period for which it is sought to require documents to be kept may also be thought too long. In most commercial transactions one would expect any problems or disputes to have emerged within a period of, say, six months. Someone must give evidence at the trial about the existence of the transparency and the period for which the original document was kept. The provision is ‘unnecessary ... unduly restrictive’ and costly.[17]
• The Safeguards. The discovery procedures in the legislation of New South Wales, Queensland and Tasmania are important provisions.[18] They only apply, however, where the original document is lost or destroyed. Thus, their application is limited. In addition, while the court can order further copies to be made if the reproduction produced is not legible, there is no power given to the court to direct inspection of the whole microfilm or, for that matter, of the system of copying. It may be argued that where there is a genuine dispute about the accuracy of the reproduction, the party against whom such evidence is led should be given access to the system of making the reproduction and to the complete transparencies. Finally, there is no power contained in the legislation to require the party tendering the reproduction to call the person who swore the affidavit (if that person is available) or to obtain an order from the court requiring the attendance of that person.
• Provisions Relating to Weight. Among matters to be considered in deciding what weight to give to the reproduction, the court is directed to have regard to the fact that if the person making an affidavit or declaration is not called as a witness, there has been no opportunity to cross-examine him. This seriously weakens and can defeat the purpose of the affidavit provisions. It can have the indirect effect of requiring the deponent to be called in all cases. Another matter which the court is directed to take into account is the necessity of making the reproduction or negative or for destroying or parting with the original document. With much of the microfilming that is done today, it could not be said that there is any ‘necessity’ for making the reproduction or destroying the document. Finally, the section is in terms an exhaustive statement of the matters to be considered. It does not, however, state all matters that might usefully be considered—eg the opportunity to tamper with the document or the reproduction, and the unavailability of the person who swore the affidavit.
• Discretion to Reject. The Commission has been advised that people aware of the statutory discretion to reject evidence are deterred from ever destroying original documents. They are probably justified in their anxiety. The discretion given is to refuse to admit a reproduction in evidence when it is considered ‘inexpedient in the interest of justice to do so’. The problem is that it is always open to argument that it is unfair to enable a party to tender a copy document without calling the copier, who may then be cross-examined. The party against whom it is led cannot test the evidence in the ordinary way. The danger of such discretions was recently highlighted in the case of Albrighton v Prince Alfred Hospital.[19] It may be appropriate to have a discretion to exclude evidence in criminal proceedings where, for example, the prejudicial effect of the evidence may outweigh its probative value, or it would be unfair to an accused person to allow it to be tendered. It is difficult, however, to see a justification for such a discretion in civil proceedings—especially when the reproduction is the best evidence that the party has available, the original having been destroyed or being unavailable. At common law there is no such discretion—secondary evidence is always admissible, provided the original’s absence can be explained.
The Holding of the Hand Approach of the Legislation. Reference should be made to the sections which spell out:
― the material to be contained in the various affidavits required by the legislation;
― what must be proved where a document has been delivered to another person to be copied; and
― the steps to be taken where documents are numbered consecutively and recorded on a continuous length of film;
On one view, it should be enough simply to say that the conditions of admissibility may be proved by affidavit. The section telling the court how to estimate the weight to be attached to a reproduction may also be regarded as an example of ‘excessive hand-holding’—why not rely on argument from the parties?
• The Legislation Itself May not be Necessary. Legislation[20] of the States and Territories relating to the proof of statements in documents and records including business records could be used to tender the testimony which the reproductions legislation is designed to preserve.[21] It is possible now for people to have admitted a record of the copying of the document. It could state the identity of the documents copied, the identity of the copies and also note facts relevant to the accuracy of the copies.[22] Such a record could be tendered subject to the requirements of the abovementioned State and Territory legislation which, in some instances, requires the calling of the person who made the statement, unless that person is not available.
• Limitations on the Operation of the Legislation. Where an approved machine is not used, the reproduction of documents made by businesses is not admissible under the reproductions legislation if the original is still in existence. This again reduces the value of the legislation. On one view, where the copying of documents is done as a matter of course in, for example, a business, it should be sufficient at the outset to be able to tender such copies (which can be easily produced to the court), rather than attempt to find the original document (which has been put away somewhere in storage). In the few cases where there is some genuine dispute about the matter it may then be necessary to produce the original documents (if they are still in existence). It is also difficult to see how the ‘official document’ provisions of the State legislation can be used to facilitate the tendering of copies of Commonwealth government documents. The legislation generally relates to documents of State governments and instrumentalities.
The arguments advanced for the reproductions legislation included the argument that the common law was cumbersome, lacking in certainty, and unsuited to modern business methods and practice.[23] Unfortunately, the same arguments can be applied to the reproductions legislation itself. It justifies the description, ‘cumbersome’. The introduction of the discretion, and provisions about weight give rise to considerable uncertainty. It lacks practicality. While it is true that the legislation does enable reproductions of private business records to be tendered where the original exists, it does so only in relation to those produced by approved machines. A positive result of the legislation, however, is that compliance with it will help the record keeper to operate an accurate and reliable microfilming system. But the criticisms are such that alternatives should be considered. Any alternative federal and Territory proposal, however, should avoid adding to the present detail and complexity.
324. Other Legislation Relating to Copy Documents.[24] The legislation of the Australian Capital Territory and the Northern Territory is narrow in its operation—to official documents and old documents only. The South Australian legislation introduces uncertainty by relying principally upon a judicial discretion. In its terms, it would encourage businesses, for example, not to maintain any records of the copying of documents because it allows reproductions to be tendered if they are apparently genuine. In reality, however, a judge will be under considerable pressure not to allow even an apparently genuine reproduction to be tendered in the exercise of his discretion if objection is taken. Further, even when suitable records are kept of the copying of the documents, there is no certainty as to whether the document can be tendered. The ‘statement in document’ and ‘in records’ legislation also makes the tender of the copy dependent upon judicial discretion. It is not possible to predict in advance with any confidence what evidence the court will require and whether the copy will be admitted. The ‘banker’s books’ and ‘books of account’ provisions are limited by their subject-matter and also require evidence that each copy was checked with the original.
325. Prolixity. The legislation is extensive. It contains both general provisions relating to documents of a public nature and a number of specific provisions dealing with particular descriptions of public registers and files. These include—registers of British vessels and ship’s articles; registers of newspaper proprietors; documents filed in Corporate Affairs offices; registers of births, deaths, marriages and adoptions; documents recording convictions in Australia and outside Australia; judgments and other court documents both inside and outside Australia; crown grants, letters patent, leases and other documents of title. The general and specific provisions overlap. In addition the provisions in the reproductions legislation[25] cover much of the same ground insofar as it relates to secondary evidence of official records. It should not be beyond the wit of man to produce one general provision to deal with them.
326. Gaps. The provisions vary. Many categories of documents are not dealt with in some jurisdictions. The Commonwealth legislation does not specifically deal with—foreign public documents; Australian registers; registers of British vessels and ship’s Articles; registers of newspaper proprietors; court documents relating to proceedings outside Australia; documents relating to title to property; or registers of births, deaths and marriages and adoption (except in the Family Court).
327. Australian Public Documents.[26] While there are general provisions in Commonwealth State and Territory legislation dealing with public documents, they appear to relate to only public documents as defined at common law. That definition is uncertain and limiting.[27]
328. Distinction between Australian and Foreign Documents. For the most part, little distinction based upon the fact that documents are Australian or foreign is drawn. This is surprising. It might be expected that a party against whom an alleged copy foreign public document is tendered would need more time to check its authenticity and that of the original. A requirement of notice or service before trial of the alleged copy foreign public document would serve this purpose. The general provisions relating to foreign public documents usually require that the document should have been admissible in the country of origin. Queensland, however, simply requires that the document should be admissible if it had been a Queensland document. This approach might be thought to be more appropriate, having regard to the fact that many courts overseas do not have a body of laws of evidence to apply.[28] An additional requirement is that contained in para 78(f) of the Evidence Ordinance applying in Christmas and the Cocos (Keeling) Islands. It provides for a certificate under the seal of a Notary Public, British Consul or diplomatic agent that the copy is duly certified by the officer having the legal custody of the original and it also requires proof of the ‘character of the document’ according to the law of the foreign country. The only other additional proof noted is that required when tendering secondary evidence of convictions.[29] Victorian legislation requires attestation by a justice of the peace or notary public. Queensland legislation does not permit the tendering of certificates made by court officers—this is one method available for proof of convictions in other Australian courts.
[1] JA Gobbo, D Byrne & JD Heydon, Cross on Evidence, 2nd Aust edn, Butterworths, Sydney, 1979, para 21.8.
[2] EW Cleary & JW Strong, ‘The Best Evidence Rule: An Evaluation in Context’, (1966) 51 Iowa L Rev, 825, 829.
[3] id, 837.
[4] This was the problem identified by the Victorian Chief Justices Law Reform Committee as the problem to be addressed by legislation. See Report of the Sub-Committee on Microfilm Evidence, Melbourne. 1963. See also New South Wales Hansard (12 September 1967) 1089; Victorian Hansard (Leg Ass) (19 October 1965) 860.
[5] The common law requires that:
• the matter recorded must have been a public matter;
• the writing must be available for public inspection and made with that intent; and
• the writing must have been made with the intent that it be kept permanently. (See Cross on Evidence, para 18.76). On one view the person making the record must enquire into the facts and satisfy himself as to their truth. (R v Halpin [1975] QB 907). See Appendix C, para 64.
[6] 25 sections in the New South Wales legislation and more in others.
[7] JE Linton, Submission (12 November 1982).
[8] Law Reform Commission of Tasmania, Report and Recommendations on The Evidence Bill 1975 (Microfilm and other Reproductions) Govt Printer. Hobart, 1975. 22. The reference was given to the Law Reform Committee before it completed its work it was succeeded by the Commission.
[9] id, 15.
[10] A requirement of the New South Wales legislation.
[11] Law Reform Commission of Tasmania, 23.
[12] JE Linton, Submission (12 November 1982), 2.
[13] WJ Koeck, ‘Microfilming Business Records and the Law’ (1979) 7 Aus Bus L Rev 320.
[14] Government bodies, banks and life insurance companies.
[15] Law Reform Commission of Tasmania, 22; cf Koeck, 330.
[16] See Appendix C, para 65.
[17] Law Reform Commission of Tasmania, 23.
[18] See Appendix C, para 65.
[19] [1980] 2 NSWLR 542. See below, para 343.
[20] See Appendix C, para 94.
[21] The possibility of using such legislation was considered by the Chief Justice’s Law Reform Committee of Victoria in its Report in 1962. There were some difficulties with the then legislation—it did not extend to criminal proceedings; statements by persons ‘interested’ were excluded by some of the legislation; there were discretions given to the trial judge to reject evidence tendered under the legislation. Under present legislation, the limitation in relation to criminal proceedings no longer applies in the case of statements in records. The ‘person interested’ problem remains, although it is unlikely to cause serious difficulty because the person copying the documents and recording that fact, is unlikely to be a ‘person interested’. As to the discretion, it exists in the reproductions legislation in any event.
[22] For an example of a type of register see I Borsa, J Basco & G Schelnitz, ‘Legal Validity of Microfilms: Some Recommendations’ UNESCO Bulletin for Libraries, (1976) Vol 30, No 3, para 7.1.
[23] See Foreword to Draft Legislation to Facilitate the Use of Photographic Copies of Documents as Evidence [48]—2408/64 (Vic).
[24] See Appendix C, para 66; Evidence Act 1909 (Cth) s 7A; s 7J, s 7Q; Evidence Act 1898 (NSW) s 14CD, 14CS.
[25] See Appendix C, para 65.
[26] See Appendix C, para 69.
[27] See above. para 322 and Appendix C, para 64.
[28] See above. para 64.
[29] See Evidence Act 1910 (Tas) s 76(5); Evidence Act 1906 (WA) s 47(4); Evidence Ordinance 1971 (ACT) s 94; Evidence Act 1951 (Vic) s 88; Evidence Act 1977 (Qld) s 69; Evidence Act, 1898 (NSW) s 23; Evidence Act 1980 (NT) s 32.
329. Universal Criticism. The common law rule and its exceptions have been the object of repeated criticism for many years. Criticisms range from ‘absurdly technical’,[1] through ‘a conglomeration of inconsistencies’,[2] to the famous Morgan and Maguire comment that the rules ‘resemble an old-fashioned crazy-quilt made of patches cut from a group of paintings by cubists, futurists and surrealists’.[3] The difficulties created by the common law are reflected in the vast body of differing legislation which has attempted to address problems as they have emerged. These have added to the ‘crazy-quilt’ effect. Dissatisfaction with the law in the United Kingdom and Commonwealth countries has, at last count, resulted in at least twelve reports by law reform bodies in recent years.[4] The fundamental problem has been that the courts ceased to develop the law after 1880[5] and legislation has been enacted from time to time, usually on an ad hoc basis addressing a specific problem that has arisen.[6] They, however, are additional to the common law exceptions. Both have tended to follow a case by case approach, with the result that the law lacks an appropriate and coherent policy framework.
The law of evidence, as perhaps no other section of English common law, developed in a haphazard and piecemeal fashion. The exceptions to the Hearsay rule were not the results of a deductive process of reasoning from a general principle but arose as necessity demanded.[7]
The general inadequacies of the rule and its exceptions are demonstrated by the tendency in practice in civil trials for the parties to waive the rule.
330. Exclusion of Probative Evidence. A number of cases have been reported where relevant evidence of substantial probative value had been excluded by the rule.[8] It is reasonable to assume that there have been many unreported cases where probative evidence has been excluded and many more cases where no attempt was made to tender such evidence because of the existence of the rule. Examples of the reported cases are:
• statements about the number of a car made shortly after the accident by a witness who later died;[9]
• a car’s log book as evidence of the engine number;[10]
• deceased employee’s statement about injuries received made shortly after the inflicting of those injuries;[11]
• statements on oath in criminal proceedings by a witness who dies before subsequent civil proceedings arising out of the same incident;[12]
• a statement on goods as to their place of origin or manufacture;[13]
• statement by a witness of his age or place of birth;[14]
• statement by deceased attesting witness that he altered the deed;[15]
• statements by a woman (police witness) that she had aborted herself;[16]
• admissions by an employee against the employer unless the employee had authority to make them;[17]
• statement by a four year old child about the assailant, exculpating the accused, are not admissible for the accused;[18]
• police officer’s description of assailant given to other officers before he died;[19]
• the confessions and admissions of a third party;[20]
• the prior inconsistent statement of a witness as evidence of the facts stated in it.[21]
While it is possible to lead evidence of a statement such as ‘the injuries occurred at home’ where this is an admission, it is not possible to lead evidence of statements to rebut such evidence such as the ‘injuries occurred at work’.[22] Other examples have been given to the Commission:
• Evidence of ‘stopping distances from the Motor Traffic Handbook, from information supplied by the NRMA, and from information supplied by the Department of Motor Transport’ is not admissible.
• Records kept at a fishing co-operative over a period of ten years of complaints by fisherman of the snagging of nets on construction debris dumped at sea are not admissible.
• Evidence of a statement by an employee, he having died, about disclosures made by him in the course of the negotiation of an insurance contract by him is not admissible.
• In the courts relevant to the reference—the Family Court and the Federal Court—the hearsay rule can operate to exclude relevant evidence of probative value—evidence of statements of children as to relevant facts, and the tendering of survey evidence in the Federal Court.
• An accused sought to rely on evidence of his doctor in Australia as to a blood condition from which he was suffering which made it dangerous for him to be pricked in any way to explain his refusal to give a blood test. It was admissible only to prove his state of mind and not as evidence of his medical condition.[23]
• The hearsay rule and its exceptions will exclude contemporaneous oral and written statements,[24] and exclude the declarations of deceased persons in will cases as to the surrounding circumstances as they saw them.[25]
• There have been many cases in which probative evidence has been excluded by the rigid line drawing involved in the res gestae principle. In the Hearsay Working Paper of the Tasmanian Law Reform Committee, Chief Justice Burbury mentioned a case that occurred in Launceston where evidence was excluded of a statement ‘my God, Jimmy’s shot her’. There are several other reported Australian cases.[26] While the Tasmanian legislation removes the technical distinction of the common law that the statement be made during the event referred to in it, it still excludes statements made while the facts were fresh in the mind of the observer, and admits only those that may be adversely affected by the trauma of the incident.
331. Complexity, Technicality, Anomalies, and Artificially. A study of the principal exceptions bears out their complexity and technicality.[27] As to anomalies, it is difficult to understand why the common law exceptions which apply where the maker of the statement is dead should not also apply[28] where the maker of the statement is unavailable for some other good reason. As to declarations against interest, it is anomalous that a declaration exposing the declarant to criminal liability or adversely affecting the person’s reputation is not admissible under the exception. Such declarations, would have a similar or greater guarantee of reliability as declarations against proprietary or pecuniary interests which are admissible. The requirement attached to declarations in the course of duty that there must be no motive to misrepresent and that it must be contemporaneous is not to be found in the other declaration exceptions. Declarations as to pedigree, are admissible if made by blood relations or their spouses but not relations in law, old family servants or intimate family friends. They must be made before a dispute was contemplated. This requirement is not to be found in the other deceased declaration exceptions with the exception of declarations as to public and general rights. As to the public documents exception, it would seem unnecessary to require that the public document should be open to public inspection and made with the intent that they should be so open to inspection. As to dying declarations, the New South Wales Law Reform Commission[29] points out that the physical condition of the person which is offered as a safeguard may weaken the evidence in any event and that there may be cases where some people may be trying to seek a last minute revenge before they die. Legislative changes are open to similar criticisms. For example, the New South Wales and Tasmanian provisions relating to dying declarations perpetuate the anomaly that the exception does not extend to civil trials.
332. It is anomalous that it should be possible to use a contemporaneous document to refresh the memory of the witness and yet that document should not be tendered in evidence.[30] The point is made that, although it is not evidence, it is presumed by law to be more likely to be true than false, otherwise it would not refresh the witness’ memory correctly. It is argued that in fact what happens is that the witness effectively reads the document in any event.
333. Artificiality exists to a high degree in the area of declarations against interest because statements are admitted under this exception which are both for and against interest[31]
Any allegation of a contract executory in favour of the declarant, however remote that contract is from the declarant’s mind, however onerous it is on him, and however unlikely any benefits to be gained from it are to produce an untruth, prevents admission. Thus a promise to marry a woman whom the declarant acknowledges to be bearing his child is not against interest.[32] ... Similarly, where a will left property to a trustee ‘to be expended as I have directed’, a statement by the trustee of the directions given was held inadmissible because ‘having regard to the terms of the will, [he] never could have had any pecuniary or proprietary interest in the testatrix’s residuary estate’.[33] Admissibility ... ought to depend, and does depend, on whether the declarant realises his interest is affected by what he says.[34] But in many cases this requirement can only be regarded as being satisfied by a fiction. One example is a statement made by a deceased creditor that he had received payments of interest on a debt tendered to show the existence of the debt.[35] Another is an assertion by a declarant in possession of a qualified title. The latter is only held to be against interest by virtue of the following reasoning, which may be thought technical to a degree. There is a rule that possession is prima facie evidence of ownership; since a possessor is prima facie owner, any claim of less than full ownership is against interest.[36]
It seems artificial to require, before sworn evidence in prior proceedings is admissible in later proceedings when the witness has died, that both proceedings should have been between the same parties[37] or that the same issues should have been involved.[38] Reference should also be made to the matter referred to in the preceding paragraphs. The hearsay rule has been avoided in enabling evidence of what an interpreter said to be received. In Gaio’s case,[39] evidence was admitted of a police officer as to what an interpreter told him that the accused had said in a language that was unknown to the police officer. The interpreter could not remember the details of the interview, but gave evidence that he had interpreted correctly. The High Court in that case upheld this approach arguing that the interpreter should be seen merely as the mouth piece or a translating machine. This view has been challenged[40] by interpreters who say that the translating machine analogy is false and that an interpreter is in fact giving his own version of what he has been told. Reference should also be made to the ‘nice distinctions employed to enable evidence of out-of-court identification to be given.[41]
334. Evidence Tendered for Non-Hearsay Purpose. On occasions a witness may wish to give evidence of a previous statement for the purpose, for example, of establishing that the previous statement was made and not for the purpose of establishing the truth of what was said. A schizophrenic task is imposed on the tribunal where the evidence of the previous statement is relevant for both purposes. The form of the hearsay rule will allow the court, for example, to consider a previous inconsistent statement for the purpose of deciding whether to believe the witness but not to consider it for the purpose of deciding the truth of the facts asserted. The issue arises most frequently in relation to prior consistent and inconsistent statements of witnesses and evidence by experts as to the basis of their opinions.
• Prior Inconsistent Statements. It is not possible, in most jurisdictions, to have prior oral and written inconsistent statements of witnesses admitted in evidence to prove the facts stated in them. This has been criticised on the grounds that it is requiring the tribunal of fact to do the impossible—while considering inconsistent statements in deciding whether or not to accept the evidence of the witness, it must ignore the previous inconsistent statements as evidence of the facts stated in it.[42] The Ontario Law Reform Commission noted that the distinction has been ruthlessly criticised by eminent, scholars and judges as ‘pious fraud’, ‘artificial’, basically ‘misguided’, ‘mere verbal ritual’ and an ‘anachronism that still impede[s] our pursuit of truth’.[43] The soundness of this practice has been challenged as being a rule juries will not understand, since ‘the distinction between the two is not easily appreciated by a jury’.[44] It has been said:
This is an area of choice Gobbledegook. Prior inconsistent statements of witnesses may be used to cast doubt on the evidence given by them, but not as evidence of the truth of such prior statements. That is a simple enough rule, provided one is able to give it a meaning which has any practical significance.
Illustration:
Evidence in Court: ‘I was there; I saw it happen’.
Cross-examination: ‘Did you not say on a prior occasion, ‘I was not there; I didn’t see it happen’?’.
Force of Rule: If the prior statement is admitted, or is denied but independently proved, then, subject to considering any explanation given by the witness:
(a) that statement may be taken as making it less likely that the witness was there and saw it happen (ie may be used to lessen the weight to be given to his testimony), but
(b) it may not be used as rendering it more likely that he was not there and did not see it happen (ie may not be used as evidence of the truth of the prior statement).[45]
Another criticism made is that it should be possible where the statement has been relied upon to reject the sworn evidence of the witness to use the statement as evidence:
If a witness is impeached by proof of a prior inconsistent statement and in consequence not believed, the position—technically, at least—is that the trier of facts may have no evidence on the point in issue. He has no sworn evidence he can believe from the witness, and he cannot use the prior statement as evidence of the truth of what it asserts. The issue will then be decided not on evidence but on the burden of proof, which may be no guide at all to the truth.[46]
Sir Stanley Burbury commented:
I have often been impatient of the rule that a prior inconsistent statement only goes to credit. Its effect may be simply that the sworn evidence of the witness must be rejected. This often arises in the hearings of cases from the Magistrates’ Courts. A witness gives sworn evidence before the Magistrate but recants before the Judge. A Judge may be convinced that the witness was telling the truth before the Magistrate and has been ‘got at’ since. Yet all he can do is to reject his sworn evidence before him as false and say there is no evidence on the point. Why should not a judge or a jury be able to act on a previous inconsistent statement if it is satisfied that that statement was true and the present evidence of the witness is untrue? ... Should the court not be able to choose between prior statements and present statements (even though the latter are on oath)?[47]
A point to note is that the statements made closer in time to the subject matter of the dispute may be more trustworthy than evidence at the trial and should not be excluded.[48] The Ontario Law Reform Commission has argued that:
… if the previous statement and the circumstances surrounding its making are sufficiently probative to lead the jury to disbelieve the story of the witness on the stand, they should be sufficient to justify the jury’s believing the statement itself.[49]
• Legislation and the Admission of the Inconsistent Statement. Cross argues that existing legislation should be allowed to apply so that statements inconsistent with an unfavourable witness’ evidence may be tendered under that legislation. He argues that as direct oral evidence by another witness may be tendered to contradict the testimony of the witness, it should be possible for that witness’ own statements to be received under the legislation.[50] The relevant legislation in Australia is detailed, complicated and varies. It is examined critically below.[51] The legislation of the Australian Capital Territory[52] alleviates the situation somewhat but is limited to the proof of and cross-examination upon prior statements. So too does legislation of the Christmas and the Cocos (Keeling) Islands. It may be argued that s. 156 of the Singapore Ordinance, is too narrow. It has been interpreted as an exclusive statement of the ways in which the credit of a witness may be impeached.[53] As a statement it limits the scope of impeachment to three defined categories. It would not, for example, permit cross-examination directed to showing bias.
• Admitting Prior Consistent Statements. Generally, evidence of a prior consistent statement may only be given to rebut an attack that the witness recently invented his evidence.[54] The law does not permit evidence of prior consistent statements of a witness to be admitted when the witness has been cross-examined to demonstrate the making of prior inconsistent statements. For example in one case a charwoman sought damages for injury incurred at work. The employers argued that she had injured herself at home. She was cross-examined on alleged admissions made to other witnesses whom the employer subsequently called who gave evidence that she had said that the injury occurred at home. She sought to lead evidence of statements made to people in which she had said that she had sustained the injury at work. She was not permitted to do so. It was held that statements may be used against a witness as admissions, but not in confirmation of her testimony.[55] There is much to be said for modifying the law to enable:
proof of prior consistent statements ... whenever the fact that the statement was made is substantially relevant for some reason other than its tendency to confirm the consistency of the witness.[56]
The inability to use the prior consistent statement as evidence of the facts stated may be criticised. It is unrealistic to require the tribunal of fact to consider the prior consistent statement for the limited purpose only of whether it meets the attack that the evidence is a recent invention. Justice Roden has argued:
64. The prior consistent statement is only admissible in special circumstances, and then again not as evidence of the truth of its contents. When it is introduced, eg in answer to a suggestion of recent invention, it can so back-date any ‘invention’ to make invention at any time unlikely. The effect must be, it seems to me, to make it more likely that the evidence was truthful, and if the evidence and prior statement was to the same effect (as the term ‘consistent’ seems to require), then the statement is being used as evidence of the truth of its content.
65. There no doubt are cases in which the existence of a prior statement has a neutralising effect on evidence rather than tending to establish anything itself. But if that is so, it is because of the nature of the particular piece of evidence and the particular prior statement. It may also be that a more accomplished philosophy scholar will be able to explain the subtle distinction I have apparently missed. Of what concern is that to the humble juror or the humbler trial judge’?[57]
Nice distinctions are required in applying the concept of recent invention. For example, a defendant was cross-examined on prior answers to interrogories which were inconsistent with his evidence. He agreed that the answers being sworn at a date nearer the date of the accident ‘could be more accurate’ than his evidence. The party who called the witness wished to tender evidence of a prior consistent statement. It was held that the attack was not one of recent invention:
I have come to the conclusion that the essence of Mr Whelan’s attack is that the defendant, upon an occasion when he could give and should have given serious and deliberate consideration to the matter, swore answers which are inconsistent with what he now says. The question of the time at which the present account was first given is not of the essence of this attack. What I conceive to be the real attack can be made just as well if it is proved that the present account had been given on earlier occasions.[58]
• Hearsay Evidence of Experts. So long as an expert testifies as to fact he is subject to the same rules as bind the common witness. Thus his evidence of statements made to him of facts upon which he based his opinion cannot be used to prove those facts. He may, however, express his opinion and give evidence of the statements of fact for the limited purpose of proving the basis of his opinion.[59]
― Medical Evidence. The High Court of Australia, accordingly, has held that a doctor may not say what a patient told him about his past symptoms as evidence of the fact of their existence, that being a classical case of hearsay, but he may say what the patient told him in order to show the foundation for his expert opinion.[60] Approaches vary, and some judges will strike out the hearsay aspects, despite the difficulties this may create in assessing the opinion.[61]
― Valuation Cases. A similar approach is strictly required when a valuer gives evidence about the selling price of comparable properties of which he does not have personal knowledge. The desirability of enabling such evidence to be admitted for a hearsay purpose has resulted either in the ignoring of the hearsay rule or the creation of systems such as a prior notification of the evidence to be relied upon.[62]
The unsatisfactory result of application of the hearsay rule to evidence of experts about the basis of their opinions has led to the development of several unclear exceptions which permit the use of the expert’s evidence about his accumulated knowledge, reported data of fellow scientists and information commonly relied upon in an industry, trade or calling.[63] The exceptions require some difficult distinctions—eg ‘facts basic to the question on which he is asked to express an opinion’ in respect of which hearsay evidence may not be given and the work of others used in arriving at his opinion[64] in respect of which hearsay evidence may be given.
The solution in the Family Court has been to control the question of admissibility of evidence by an unguided judicial discretion.[65] The uncertainties and difficulties of this approach have been criticised.[66] Reference should be made to the statutory hearsay exceptions discussed below.[67]
335. Lack of Understanding. The comment is frequently made that people do not understand the law.[68] This not surprising, when courts and experts disagree on its scope and application.[69]
336. Lying in Wait. The rules of evidence, and in particular the hearsay rule, are often waived, particularly in civil proceedings, and are frequently simply ignored. Often the practice will develop of waiving strict adherence to the rule—for example, in relation to records such as hospital records and the statements of fact on which an expert’s opinion is based. The rule, however, will lie in wait to be used when it suits for tactical reasons by the party against whom the evidence is led. On the other hand, a party preparing carefully for a case, should assume that the rules of evidence will be strictly applied and should therefore have all witnesses at court who will be necessary if the rules are strictly adhered to. This can add unnecessarily to the costs. It has been argued that in formulating rules of evidence, one should try to recognise the realities.[70]
337. The Inflexibility of the Law. If there was any doubt about the inability of the common law rules of hearsay to meet changing circumstances, it was removed by Myers v Director of Public Prosecutions where it was held that no further exceptions to the rule could be developed by the courts.[71]
338. Abolition of Rules of Evidence. Several commentators have pointed out that increasingly Tribunals are being called upon to determine issues of great weight without being bound by the hearsay rule.[72] This trend is to be found in Australia. It is in itself a criticism of the rule against hearsay.
339. Interrupting the Witnesses. The Law Reform Committee, The Criminal Law Revision Committee, and the New South Wales Law Reform Commission refer to the criticism of the hearsay rule that it causes the artificial interruption of a witness’ evidence and creates pressures and can upset a witness.[73]
340. Causing an Increase in Costs. The same law reform bodies argue that the hearsay rule can add to costs of proceedings because of the need to call the maker of the statement which can be very expensive. In addition there is the cost involved in identifying the maker of the statement.[74]
341. General. The legislation can be criticised on the following grounds:
• Its detail and complexity.[75] This makes the legislation difficult to understand, difficult to satisfy and impossible to remember.
• Its unrealistic approach. It has been put to the Commission that it is unrealistic to expect businesses to preserve and produce the evidence needed to comply with the prescribed conditions of admissibility.
• The overlap between provisions within each State and Territory. This occurs particularly in the rea of records of businesses. For example:
― South Australia, Tasmania and New South Wales have general business records provisions, provisions dealing with statements in documents which form a record, and bankers’ books provisions.
― Tasmania has two business records provisions—that modelled on US law[76] and that modelled on the New South Wales reform.
― Victoria and Queensland have books of account provisions and provisions dealing with statements contained in documents forming part of a record.
― In the ACT and Western Australia, there are banker’s books provisions and provisions relating to statements contained in documents forming part of a record.
― In relation to computer records, the definitions of ‘banker’s books’ and ‘books of account’ in the New South Wales, Queensland and Victorian legislation may be wide enough to enable that legislation to relate to evidence of computer in addition to the specific legislation in those States. In addition the definition of ‘document’ may allow the statements in records legislation of Western Australia, Victoria, and Queensland to apply to some computer records.
• No legislation attempts to deal generally with oral hearsay and no legislation attempts to deal with the question of assertions to be implied from conduct.
It is proposed in this section to critically examine the legislation which relates to statements in documents and records, business and financial records, and computer records and output.
342. Statements in Documents—Maker or Supplier to be Called Unless Excused. The South Australian legislation contains the broadest provision.[77] The Commission has been advised that the provision is rarely relied upon because of its uncertainty. As to the legislation of South Australia and the other States and Territories dealing with statements in documents (developed from the 1938 and 1965 English legislation), the following matters should be noted:
• Conditions of Admissibility. A number of the conditions may be criticised.
(a) Contemporaneity. Apart from the ACT and Tasmanian provisions, there is no requirement that the statement contained in the document should be reasonably contemporaneous with the events referred to. Thus, written statements made long after the event may be admitted subject to a discretion, in the broadest terms, to refuse to admit the statement if it would be inexpedient in the interests of justice.
Psychological research confirms that there is far more value in statements in documents made while the facts were fresh in the mind of the maker or supplier. Such evidence is likely to be far less inaccurate than oral evidence at the trial and evidence of statements made before trial but at a later date and to permit its admissibility can only add to the time and costs of trials.
The research demonstrates that the accuracy and completeness of recollection decreases as time passes and that there is a rapid loss of information within the first 24 hours. This means that any statement, by an eyewitness and, in particular any written statement, made within the first 24 hours is likely to be more accurate and complete than any testimony given in court on oath some years later.
In addition as time passes between the event and the trial arising out of it, witnesses will be called upon to recall and state their observations—to police, solicitors, counsel, and at committal proceedings. They will discuss what they saw with friends and relatives. With each attempt at recall and recapitulation there is the potential for unconscious modification. Further, in recalling and stating their observations to police, lawyers, and at committal proceedings, the witnesses will all be subjected to questioning. This will inevitably involve some distortion of recollection as the questioning will never be entirely neutral. These points are borne out by the research referred to elsewhere.[78] In addition, reference should be made to an experiment by Marston in which:
The witness either made notes shortly after the incident, or was examined in court with questions designed to establish what had really happened, or was subjected to the usual cross examination, with leading questions, dishonest arguments and attempts to trick him. Generally, the notes made after the incident were the most accurate, and jury findings based on these notes were more accurate and complete than findings found on direct examinations or cross-examinations.[79]
It can be argued that:
the testimony that should be admitted to court is what the witness recalled soon after the event in—question. Not what he is recalling of the event in the court-room, a product which will be hopelessly contaminated by experiences subsequent to the event—in—question, for example, television and newspaper reports, discussion with other witnesses, police interviews. The argument often advanced against this approach is that the present system allows the evidence of a witness to be tested and evaluated under cross-examination. However, the approach that we are advocating does not imply the abandonment of cross-examination, rather it should be focussed more on what the witness remembered in his initial recall.[80]
(b) Records—Duty to Record. There is (with the exception of Queensland and Victoria) a requirement that a statement contained in the record shall not be admissible unless there was a duty to include that statement in the record. This requirement was criticised by the Law Reform Commission of Western Australia.[81] It was said that the precise nature of this duty is unclear. (Note the only definition contained in a statute is in the ACT Evidence Ordinance 1971). It argues that the requirement can lead to artificial results—eg, if the maker of the statement was the owner of the business, he would not be under any duty to make the record. Alternatively if he was a partner in the firm he might be under a duty. It also argued that the performance of the duty to record was unlikely to add to the accuracy of the record. It concludes that the manner and circumstances in which information is recorded should go to weight rather than admissibility.
(c) Grounds for not calling maker or supplier. It is arguable that the grounds for excusing a party from calling the maker of the statement or supplier of the information are too lax for criminal proceedings. Reference should be made to the grounds that:
― the maker is beyond the seas or outside the State and it is not reasonably practicable to secure his attendance;
― all reasonable efforts to find the maker have been made without success;
— undue delay or expense would be caused;
― it cannot reasonably be supposed that the maker or supplier would have any recollection of the matters recorded.
While these grounds may be satisfactory for civil proceedings it is questionable whether they are satisfactory for criminal proceedings.
(d) Records in Criminal Proceedings. Where the legislation dealing with statements in documents has been extended to criminal proceedings, it operates only in relation to records where the supplier of the information recorded is unavailable or cannot be supposed to have any recollection. The Law Reform Commission of Western Australia has argued that this is a significant limitation on the admissibility of business records in criminal proceedings. If the supplier is in Australia, identifiable, not disabled, and can reasonably be expected to recollect the relevant matters, a party has no right under such legislation to submit the document in evidence instead of calling the supplier personally. Nor does he have any right under the legislation to submit this statement in addition to calling the supplier as a witness.[82]
(e) Civil Proceedings. In civil proceedings, it can be argued that a party ought to have the right to tender statements contained in documents made by a person with personal knowledge of the matter stated whenever such a person is not available—on the basis that it may be the best evidence available to it. It should not be necessary to seek the leave of the court. On the other hand, when it is difficult or costly to call a witness, it is appropriate to introduce some sort of mechanism to deal with the point. As to secondhand written hearsay (where the maker of the document does not have personal knowledge of the facts) it may be more appropriate to take the approach spelt out in the New South Wales and Commonwealth provisions relating to business records or the Queensland and Victorian books of account provisions.
• Application of Provisions—Civil not Criminal Proceedings. In most instances, again with the exception of the ACT and Tasmania, the statutory exception extending to firsthand written hearsay (a statement made by the person in the document where that person had personal knowledge) is not extended to criminal proceedings. In Tasmania, however, firsthand written hearsay cannot be tendered in criminal proceedings where the maker is unavailable and the accused objects, or is not represented by a lawyer.
• Inadequate Safeguards. There is little protection given to the party against whom the evidence is tendered under the sections and this may make it more difficult for the party trying to tender the evidence to succeed in doing so.[83] In particular:
― Except in Tasmania there is no notice provision. Such a provision would enable the party against whom the evidence is to be led to adequately prepare and check upon the unavailability of the maker or supplier of the information and to prepare evidence as to the credibility of the maker or supplier.
― There is no power given in the legislation to a party against whom the evidence is led to seek wide ranging discovery and inspection where the document forms part of a record or discovery of other statements that may affect the credibility of the evidence.
• Exclusionary provisions. Some provisions operate to exclude evidence which has satisfied the conditions of admissibility.
(a) Document made when Proceedings Pending. There are differing provisions in the legislation of the States and Territories other than Tasmania, Queensland and Western Australia which have the effect of excluding statements in documents which were made at a time when proceedings were pending or anticipated. This would have the effect of keeping out contemporaneous statements made by key witnesses and parties which on psychological evidence will often be the most accurate evidence available. They will also exclude the best evidence available to a party and the court.[84] The ACT restriction applies in criminal proceedings only. The New South Wales, South Australian and Northern Territory restrictions apply in civil proceedings. The Victorian provisions[85] apply in both civil and criminal proceedings. The absence of such a restriction in the Tasmanian legislation has meant that an unsigned record of interview which was not adopted by the accused may be tendered in evidence and its use not limited to the charade of refreshing the memory of the police interviewer.[86]
(b) Discretion to exclude. There is a discretion in most of the legislation enabling the trial judge to exclude the evidence if in his view it would be ‘inexpedient in the interests of justice’. The discretion introduces uncertainty into the legislation and could be used to defeat the legislation. The difficulty is that there will always be strong pressure on the judge to exercise the discretion in favour of the party against whom the evidence is led where the evidence is important and the party tendering it is unable to produce the maker of the statement or supplier of the information. The party against whom it is led will be arguing that it should have the right to cross-examine and that it would be unjust if he did not have that right. This broad discretion is to be compared with the Tasmanian provisions which allows the evidence to be excluded if the probative value is outweighed by the risk of undue consumption of time or of undue prejudice, confusion or of misleading the jury. In the ACT also there is a discretion enabling the judge to refuse to admit the evidence if he has reason to doubt its reliability or is satisfied that it would be unfair to the accused in criminal proceedings. In Tasmania there is also a discretion to exclude statement of fact or opinion where the person responsible is unavailable, if the judge is of the opinion that the statement ought not to be admitted without being tested by cross-examination. Again this type of discretion could deprive the legislation of any significant operation.
• Unpredictability of Operation. The formulation of the legislation leaves the party in a state of uncertainty as to whether it will or will not be able to rely upon the section.[87] This arises from the fact that the leave of the court is necessary before a party can be excused from calling the maker or the supplier of information. If agreement cannot be reached between the parties before trial, the party that has to bring a witness from interstate, for example, may have to do so anyway because it cannot be sure that the judge will give leave to tender the evidence without calling the witness.
• The Legislation Lies in Wait. In many instances in practice documents such as hospital records and medical reports are tendered without calling the person who made the statement or supplied the information. The statutory requirement that leave is required before this can be done means that the legislation will lie in wait along with the hearsay rule.
• Experience of Provisions. While documents such as hospital and business records are often tendered, the comment has been made to the Commission that the statement in documents legislation is rarely referred to or invoked. The view has been expressed that this is due to its detail and complexity. At the same time, the Commission has received little criticism of the provisions. Some practitioners of the ACT, for example, have stated that the ACT provisions are used mainly for tendering medical reports and the opinions contained in them. This is seen as beneficial. The legislation is also used on rare occasions by a party calling a witness to tender a prior inconsistent statement of that witness where the witness has not sworn up to prior proofs. The Commission, however, has been informed that the courts in the ACT have declined to permit the tendering of self-serving statements, although section 28 would appear to justify this practice. There does not appear to be any express provision prohibiting the tendering of such statements. The practice appears to be, however, that unless the statement is tendered to contradict a witness or to rebut suggestions of recent invention or as a substitute for evidence, it will not be admitted.
Practitioners were critical of the value of the legislation for proving financial records of businesses. In the ACT ordinance, it is provided that such records may be tendered if the supplier of the information is unavailable. The same practitioners argued that the categories of unavailability are almost impossible to prove. Most assume that it is possible to identify the supplier of the information. In a large company this is generally impossible. This leaves the one ground of admissibility that the supplier cannot with reasonable diligence be identified or found. The point has been made to the Commission that it is difficult to produce adequate evidence of attempts to identify the supplier. More often than not, such action has not been taken. These comments will apply to all the legislation in this category. They all contain somewhat similar grounds of unavailability which excuse the patty from calling the maker of the document or the supplier of the information contained in the document. The fact that practitioners consulted in other jurisdictions have not made similar comments may be due to the fact that in those jurisdictions there are additional sections which enable business records to be tendered without calling the maker. It being easier to admit business records under these sections, they are likely to be used in preference to the statements in document and records legislation.
• Evidence relevant to Credibility. Except in Victoria, Queensland and Tasmania, there is no provision enabling the party against whom the evidence is led to lead evidence as to the credibility of the maker of the statement or supplier of the information. This is an undesirable omission.
• Weight. In most jurisdictions there is a provision setting out the matters to be considered in deciding what weight is to be given to the statement. These provisions tend to state the obvious and may discourage consideration of other matters which ought to be considered.
• Problems of Interpretation. A number of problems have arisen in the interpretation of this legislation. These include the following:
(a) Impeachment of Witness. There is a conflict of authority about whether a party may impeach the credit of his own witness by tendering a statement under the legislation.[88]
(b) Definition of Document. It is uncertain whether a tape recording would be included in the definition of document contained in the South Australian, New South Wales, Western Australia, or the Northern Territory legislation.[89]
(c) Opinion Evidence. Except in Western Australia (civil proceedings only), Tasmania, and the ACT the legislation does not specifically extend to evidence of statements of opinion leaving the application of the legislation in doubt.[90]
(d) Production of Copy Document. it is not possible under the legislation to tender a copy of the document where the original is destroyed. The power under the legislation to tender a copy is restricted to the situation where there would be undue delay or expense in obtaining the original.[91]
(e) The Maker of the Statement and the Supplying of Information. There is authority that the court shorthand writer recording the evidence is not a person making a statement in a document and further that information is not supplied to a shorthand writer in such circumstances but is supplied to the tribunal.[92]
(f) ‘Continuous Record’. This requirement is to be found in the South Australian, New South Wales, and Northern Territory legislation. It has been held to exclude an analysis of shipments of wheatmeal set out on printed forms contained in a folder[93] and portion of a policeman’s notebook containing statements made by an eye witness who could not be called.[94]
(g) Person Interested in Pending or Anticipated Proceedings. This provision occurs in the South Australian, Victorian, New South Wales and Northern Territory legislation and excludes statements made by persons so interested. It applies, however, to the maker of a statement and not the supplier of the information.
There is a conflict of authority as to when a person is ‘a person interested.’ One view is that a person is ‘a person interested’ if his conduct is likely to be called in question in pending or anticipated litigation or his reputation or financial interest is likely to be affected.
‘in short anything is shown which is reasonably calculated to affect the impartiality of the person making the statement.[95]
This view follows that expressed in England.[96] The other view is that it must be shown that there is a substantial material interest in the outcome of the proceedings pending or anticipated when the statement was made.[97]
(h) When are Proceedings ‘Anticipated’. There is authority that proceedings are anticipated if they are contemplated as a possibility.[98] However, there is later and contrary English authority, distinguishing earlier cases, that proceedings should be regarded as they are ‘anticipated’ if there is a reasonable probability or likelihood of the proceedings.[99]
(i) Who must Anticipate Proceedings? There is support for a subjective test,[100] and for an objective test.[101]
343. Statements in Documents—Maker or Supplier not Required to give Evidence. The relevant legislation is that of New South Wales, the Commonwealth, Tasmania and South Australia dealing with business records and the ‘banker’s books’ and ‘books of account’ provisions.
• General—Inability to require Maker or Supplier to be called. Error in records can occur as a result of the faulty recollection of the maker or supplier of the information and errors in the recapitulation by the supplier to the maker of the record. In none of the legislation dealing with business records as such is there any requirement that the person who made the record or supplied the information be called. It will therefore, not be possible for the party against whom the evidence is led to cross-examine that person. The Law Reform Commission of Western Australia, in its Report on Admissibility of Computer Records,[102] has argued that it is important that the person who made the statement or supplied information contained in the statement should be available for cross-examination wherever possible, rather than allowing the document to be admitted merely because it comes within a defined category. It should be noted, however, that the New South Wales Law Reform Commission took the view that this was justified for several reasons:[103]
― the statement would be reliable and often the best evidence;
― the statement would not be the subject of bona fide dispute;
― the statement is unlikely to be the only evidence of any fundamental fact in issue;
― the persons who made the statement or supplied the information would have no recollection of the matters or could not give better evidence;
― it would be difficult to identify the relevant people;
― there would be hardship in calling the witnesses because they were so numerous or engaged in important work.
Mr Justice Samuels has commented that ‘experience of the operation of (the business records provisions) confirms this analysis’.[104] The New South Wales Commission also argued that the tactical pressures of litigation mean that if a party has the maker or supplier available and the fact is of any importance in the proceedings the witness will be called. At the same time the Commission recognised that a party might for tactical reasons decide not to call an available witness and consequently it recommended that the court should have a discretion to reject a statement otherwise admissible.[105] It is suggested that a power to direct the calling of witnesses is also needed.
A qualification to be made in relation to the New South Wales and Commonwealth legislation is that in criminal proceedings, a patty against whom the evidence is tendered may require that any person involved in the making of the statement be called as a witness. Unless any such person is unavailable, the evidence will be inadmissible once such a demand is made. Thus in criminal proceedings, it will be more difficult under the New South Wales and the Commonwealth legislation to tender financial records than it will be in Queensland and Victoria. There is also no provision enabling a party against whom the evidence is led to obtain general inspection and additional documentation (except to a limited extent in the Commonwealth and New South Wales Acts).
• New South Wales, Tasmanian and Commonwealth Business Records Legislation. The business records legislation is open to a number of criticisms.
(a) No Power in the Court to Give Directions in Civil Trials. In civil trials, if the requirements of the legislation are satisfied but the judge takes the view that persons involved in the making of the business record are available and should be called for cross-examination, he does not have the power to give directions to that effect. He is therefore, faced with the choice of letting the evidence in or excluding it in the exercise of a discretion. In the case of courts applying the Commonwealth Evidence Act, this presumably means looking to the legislation of the particular State or Territory in which they happen to be sitting to see if it permits the documents to be admitted. It must be borne in mind that the New South Wales legislation was drafted with the existing ‘statements in documents’ legislation in mind.[106] Practitioners have advised the Commission that some judges will pressure parties to call the maker of the record and to check whether the maker is available. This may reflect the need for a power to give such directions.
(b) Criminal Proceedings. It will be more difficult to tender a document in criminal proceedings where it is based upon information supplied by a person than it will where it is derived from information supplied by a device. Questions of the reliability etc of the devices are left to the section dealing with weight. In addition, the party against whom the records are led can demand, as of right, that all persons involved in the making of the record be called and, if they are not called, that their absence be justified. This is a fearsome tactical weapon. Practitioners have confirmed that this power can result in excessive time being spent in trials for white collar crimes. Because of the potential for abuse of such a provision, it might be preferable to give the judge the power to require the party objecting to demonstrate the bona fides of the request. The legislation does provide grounds which will excuse a party from calling such witnesses—death, unfitness, cost etc. This introduces an element of uncertainty. Other grounds (undue delay or expense, not reasonably practicable to secure attendance, cannot reasonably be expected to have any recollection) may also be thought to be too lenient for criminal proceedings.
(c) Weight. The legislation contains sections setting out the matters to be taken into account in deciding what weight to attach to the documents. The matters listed are reasonably obvious and do not mention other matters going to the weight of the documents, such as that their accuracy is relied upon by the business and whether the persons involved in making the record are available but not called. They create the risk of the courts not considering any other matters in deciding what weight to attach to the statement. The section also raises the difficulty for the party tendering the evidence that if it does not lead evidence going to these matters at the time of tendering the documents it can be argued that the court cannot determine what weight to attach to them. If evidence is to be led, further problems arise in relation to computer records. The section states that the ‘reliability of the device’ and ‘the reliability of the means of reproduction or of derivation’ are to be considered in determining the weight of the evidence. On one view the court will need a course in electronics and programming. It may be better to approach the matter on the basis that the documents, as records, are received in evidence and that proper access and rights of inspection be given to the party against whom the records are lead so that the tactical onus is then placed on it to point to any weaknesses in the system.
(d) Suspicious Approach. The approach of all legislation appears to be to regard such evidence with the gravest of suspicion. It is arguable that the approach should be the opposite—business records should be regarded as prima facie reliable and accurate unless the party against whom they are led can point to some deficiency. This would apply in both civil and criminal proceedings. A way to create this situation would be to adopt the approach taken in the Victorian and Queensland books of account provisions. This is to make the contents of the record prima facie evidence of the matters stated in them. This will float the case and it will then be up to the party against whom the evidence is lead to challenge that case.
(e) Discretion. In the Commonwealth and New South Wales legislation a discretion is given to the court to reject or exclude the evidence if it appears that the weight of the evidence is too slight to justify its admission, its utility is outweighed by the risk of unduly prolonging the proceedings, the evidence may be unfair to any other party, or, where there is a jury, the jury might give the evidence undue weight. There is a risk with this type of discretion that the object of the legislation will be defeated. Further, it is always possible to demonstrate some unfairness to the patty against whom the evidence is lead. The evidence will be adverse to that party, and it will not always be possible for that party to cross-examine the maker of the record or the supplier of the information. This difficulty was highlighted in the case of Albrighton v Royal Prince Alfred Hospital and Others.[107] In that case, the plaintiff sued the hospital and two specialists for damages. The plaintiff had undergone traction at the hospital and as a result become a paraplegic. The plaintiff apparently had considerable difficulty at the trial in having the complete hospital record tendered. Two areas where the trial judge exercised his discretion are referred to in the judgment on appeal of Justice Hutley:—
(i) The trial judge excluded the words ‘consult Professor Gye’ from the typed extract on the ground that they could mean a number of things, it was not known who wrote them, who asked them to be written, and it was a matter which could go very much to the essential issues of the case. His Honour said that he thought it would be ‘highly prejudicial’ to allow them in those circumstances. He rejected the words, relying on s 14CP. Justice Hutley held[108] that this was an incorrect application of the discretion. His Honour held that in the light of other evidence the only conclusion that could be reached was that they did come from a qualified person. His Honour argued that the notation did go to an essential issue in the case and that while there was a sense of prejudice to two of the defendants, this took the form of forcing them to give evidence on the issue and that this was not the type of prejudice which could be relied upon to exclude evidence given under the act, ‘at least in civil proceedings’.(ii) Another example was the rejection of documents which may have been written by junior medical staff or by second year nursing staff. It was sought to uphold the exercise of the discretion on the grounds that the writers might have been junior and inexperienced people and possibly unreliable observers. As to this, Justice Hutley[109] stated that this argument ignored the legislative intent to admit records of relevant facts without regard to the quality of the recorder. ‘The right of the judge to reject unfair material should not be used to defeat the legislature’s decision to admit properly kept records’. His Honour later said:
The clear intent of the legislature is that the properly kept business record should be admissible in evidence, even if their admission does not fit in with the traditional philosophy for admissibility. The legislature has gone out of its way to emphasise certain obstacles to admissibility, eg, the hearsay rule, have to be disregarded entirely. This, in my opinion, means disregarded in the assessment of whether the admission of the documents would be unfair.
The other members of the court concurred in these remarks.[110] The problem will remain,[111] however, and while the Court of Appeal’s remarks may encourage a more liberal approach, the proposition that the intent of the legislation must not be defeated gives little guidance. The intent includes the exclusion of evidence on the grounds of unfairness. A liberal approach will not be taken at trial level if there is a lack of sympathy for it. It might be necessary to either delete that ground or to define it in different terms. In Re Marra Developments Limited and the Companies Act[112] Justice Needham discussed the operation of the discretion when it was alleged that the tender of a document would be unfair. He rejected the argument of the parties seeking exclusion of the document because, in his view, it would be a simple matter for the parties against whom the evidence was led to meet the evidence if it was incorrect. As to the meaning of unfairness, His Honour suggested that it could be unfair to a party if, for example, the material gave
‘an inaccurate picture of the particular circumstances the subject matter of the tender. It may be in some cases that the tender of a bare statement in a document without its context could create a completely wrong impression as to the true facts.
His Honour later suggested that:
‘the only restriction, it seems to me, based on s 14CP, is the result of the consideration as to whether the material tendered does create an inaccurate picture, or in some way prejudices the position of the other party to such an extent that they are unable to correct that situation.’
The Court of Appeal in the Albrighton case did not comment on these passages. It is interesting to note that the view was expressed in 1974 that the discretion to reject evidence on the ground of ‘unfairness’ could result in some uncertainty as to what evidence would in fact be admitted.[113] Another approach is to give the trial judge power to give directions to avoid any unfairness.
(f) Qualified Person. The operation of the requirement that the maker of the statement or the supplier of information be a qualified person is illustrated in the case of Re Marra Developments.[114] In that case, some shareholders in the company proceeded against the company and some of its directors alleging oppressive conduct within s 186(1) of the Companies Act. A number of issues arose involving the application of the New South Wales Business Records Provisions. The petitioners sought to tender a memorandum addressed to the board of directors containing information supplied to the managing director, who was a qualified person, by persons who were not associated with the company. Justice Needham held that statements in the document which appeared to come from outside sources could not be admitted.
On the other hand, a document recording a conversation between the managing director and a Mr Yunghanns, a party to the proceedings, was admissible although the matters stated by Mr Yunghanns to the managing director were not within Mr Yunghanns personal knowledge. It was held that the managing director was a qualified person, and as he had personal knowledge of what he was told by Mr Yunghanns, it was therefore admissible. A third document in relation to which the issue arose was an internal memorandum prepared by the managing director recording information given to him by an employee of the Bank of New South Wales. The latter person had no connection with the company. Mr Justice Needham held that hearsay material in a statement can only be tendered under the Act if it appears that the statements recorded were made by a person who was a qualified person within the meaning of the Act. He held that the employee of the bank did not come within the definition in the Act and that therefore the memorandum could not be tendered.
Interpreted literally, the definition of ‘qualified person’ would prevent the receipt of records as evidence of facts recorded in them where the person with the personal knowledge of them was not the proprietor, employee, etc of the business. Thus the history given by a patient in a hospital records would not be admissible to prove the facts stated.[115] The requirement would prevent the receipt in evidence of records comprising returns required by law to be filed with government bodies. It is suggested that the concept unduly limits the legislation. It is more limited than the provision it replaced, which required only that the supplier of the information have or be reasonably supposed to have personal knowledge of the facts stated. While it was introduced to provide some assurance of reliability it is doubtful whether it does so. The reliability, if any, derives from the fact that someone associated with the business assessed that the information was worth recording for the purposes of the business.
(g) Drawing Inferences from the Document. There is uncertainty as to the application of the power[116] of the court to draw inferences from the form or content of the document in which the statement is contained for the purpose of deciding questions of admissibility. In Re Marra Developments (No 2)[117] Justice Needham rejected the tender of a document which included statements of opinion about likely future profits and share prices contained in the document. The document purported to be signed by the general manager of Partnership Pacific Limited and related to a proposed takeover bid by that company. It purported to be prepared for the Board of that company. His Honour was not prepared to draw any inferences as to the managing director’s expertise in the matters of estimates dealt with in the document. The party tendering the document did not tender other evidence of the expertise of the managing director. In addition, His Honour declined to draw the inference that the estimates which appeared in the document were those of the managing director. These parts of the document were held to be inadmissible.
This contrasts with the approach taken by the Court of Appeal in Albrighton v Royal Prince Alfred Hospital.[118] Justice Hutley (with whom Justices Hope and Reynolds agreed) held that the hospital records should not have been rejected on the grounds accepted by the learned trial judge. Those grounds were that
Much of the material in the pages the subject of a tender consisted of medical opinions expressed by persons who may and probably would be unqualified to express them.
The evidence was that the records had been written by servants or agents of the hospital and were therefore prepared by qualified persons within the meaning of the Act insofar as the person making the statement was not required to be an expert. Justice Hutley, after making the point that facts can be stated in the form of an opinion and that opinions themselves can be relevant facts, declined to follow the learned trial judges approach stating:
No part of the records tendered, in my opinion, have been shown not to be records of relevant facts, or of opinions by persons without the necessary expertise to permit the expression of opinions. The object of the part is to permit the admission of business records. The records of a hospital are kept for the information of the staff and treating doctors. They are not likely repositories of the speculations of the inexpert; and this is a fact to be considered on their admissibility: see Section 14CL.
A similar process of reasoning would have justified the admission of the Managing Director’s statement in Re Marra Developments (No 2). It may be argued, however, that the reasoning of the Court of Appeal can be challenged because it appears to be based on a reversal of the onus of proof. The reasoning from the passage quoted above suggests that the onus is on the party against whom it is led to show that the conditions of admissibility have not been satisfied.
(h) Other Experience of the Provisions. Some New South Wales practitioners have commented on the operation of the New South Wales Business Records legislation. Some difficulty has been experienced on the issues of what is a ‘record’ and what is a ‘business’—eg whether a note on the front of a court file kept by the Clerk of Petty Sessions should be regarded as being incorporated in a record and whether the Court of Petty Sessions could be regarded as a business. Similar difficulties have been experienced in persuading a court that a note written by a Manager to an employee could be described as part of a ‘record’. Another example of difficulty given was difficulty in persuading courts to draw inferences, as specifically allowed by the legislation, from the documents themselves as to the authorship of documents—eg the Bank Manager’s diary and notes when it is not possible by direct evidence to establish precisely who wrote the entries.
• Tasmanian and South Australia Business Records Provisions. The Tasmanian[119] and South Australian provisions can be criticised by comparison with the Commonwealth and New South Wales legislation in that they do not include a number of provisions to be found in that legislation:-
― excluding statements made in connection with criminal proceedings or their investigation;
― relating to corroboration, withholding a statement from the jury, the credibility of the maker of the statement;
― enabling the whole of the record to be used to prove that an event did not happen.
There is also authority that suggests that they do not permit evidence of statements of opinion to be admitted.[120] Other possible matters for criticism are:
(a) Threshold Requirements. Some of the Tasmanian threshold requirements can be said to be too restrictive. The memorandum or record must have been made ‘at or about the time of the doing or occurrence of the act, matter, or event’. In addition, it is necessary to establish that:
the source of information, and the method and time of the preparation of the memorandum or record, were such as to indicate its trustworthiness.
(b) Need to refer to USA Case Law. A criticism voiced of the Tasmanian legislation is that it results in the courts having to refer to United States case law. The Tasmanian business records provision is derived from the Business Records legislation and rules which have been adopted in most States of the United States of America and for the Federal Courts. As a result it is appropriate to refer to American case law when any issue of interpretation arises. It was suggested by the New South Wales Law Reform Commission in its Working Paper on Evidence (Business Records)[121] that this is highly inconvenient because of the bulk of material and its limited accessibility. That Commission referred to two cases in which reference had been made to American material—O’Donnell v Dakin[122] and the decision of Mather and Deegan v Morgan.[123]
(c) Interpretation. Some decisions on these provisions also raise some potential criticism. The provisions have been interpreted not to apply to statements of opinion, in particular medical opinions in hospital records.[124] In addition, The expression in the Tasmanian section—‘memorandum or record ... made in the regular course of a business’—has been interpreted so as to be restricted to memoranda and records made by the operator of the relevant business or undertaking or an employee of the operator.[125] An entry form made out by a competitor at a carnival, and the printed programme of the carnival, could not be tendered under the provision, although relevant on the hearing of a charge of illegal betting at an athletic carnival. The reasoning was that the entry form, although kept by the operator of the carnival, was not made by the operator or by an employee of the operator. As to the programme, although made for the operator of the carnival, it was not made by the operator but by the printer, and it was not made in the course of organising and running the carnival.[126] Finally, the provisions have been interpreted as not admitting statements where, if the maker had been called, the statement would have been inadmissible under the laws of evidence. The legislation in each case is silent on this point.[127]
(d) Books of Account and Banker’s Books. The Commission is not aware of any specific criticisms of these provisions. There is no provision, however, in Tasmania and New South Wales (in civil proceedings) which extends the operation of the legislation to banker’s books kept outside those States.
344. Computer Evidence Provisions. Under New South Wales, Tasmanian and Commonwealth legislation, computer output and evidence of records kept by a computer are dealt with under legislation dealing with business records.[128] Comment has already been made in general terms about the business records legislation. Further comments, however, can be made about this legislation as it relates to computers.
• Business Records Approach. Technology appears to be catching up even with the broad New South Wales and Commonwealth provisions. It is possible now with on-line computers for persons, such as customers of the business, who would not be within the description of ‘qualified person’ to cause information to be recorded in the computer records of a business.[129] Such records may not qualify for admissibility under the Commonwealth and New South Wales legislation. Such records may be admissible under the Tasmanian and South Australian legislation. They would be admissible under the legislation which specifically relates to computers, subject to compliance with the threshold requirements. A further difficulty is that the business records legislation makes computer-produced evidence admissible notwithstanding the hearsay rule and the secondary evidence of documents rule but ‘does not make admissible a statement that is otherwise inadmissible’. It does not refer to the rules requiring the evidence of the trustworthiness of devices used to produce evidence.[130] It is strongly arguable that such evidence is still required for business records kept by computer.
• Specific Computer Legislation. As to the legislation specifically drafted for computers alone, many criticisms have been voiced:
(a) Verification of Information. The legislation emphasises the need to verify the reliability of the computers operation while ignoring the need to verify the information supplied to it.[131] It is in the input and encoding stages that the major errors tend to occur.[132] The approach of the legislation is to
attribute to computers magical properties which they do not in fact possess. What comes out of the computer can be no more reliable than what went into it.[133]
(b) Admissibility Easier than for Records. A general criticism of this legislation is that documents are more readily admissible if produced by a computer than if contained in other records.[134] This may be true in some States but not in all. In Queensland and Victoria it is even easier to produce traditional books of account in evidence than it is to produce computer or other records.
(c) Right to Cross-examine. A further criticism has been[135] that there is no right to cross-examine the keeper or the processor. Reference is made to the certificate procedure that is contained in the legislation enabling the threshold matters to be proved by certificates.
(d) No Basis for Special Legislation. A general criticism that can be made is that there is no basis for distinguishing between computer-produced business records and others. It was argued by the Law Reform Commission of New South Wales in its Working Paper on Evidence (Business Records)[136] that:
Most business records can be kept by the use of a computer or by other means. There is no justification for imposing safeguards of reliability for records kept by use of a computer which differ from those applicable to records kept by other means. There should be only one provision for the admission of statements in business records expressed in terms which include records kept by the use of a computer.[137]
• Victorian, Queensland, South Australian and ACT Legislation. A number of criticisms may be made.[138]
(a) Definition of Computers. A computer is defined in Victoria, Queensland and ACT legislation as a device that stores or processes information or does both. This is so wide that is capable of applying to typewriters and filing cabinets.
(b) Conditions of Admissibility. Tapper argues that there is not enough control over the reliability of the information supplied. Provided the conditions are satisfied computer output of facts is admissible where the supplier of the information had no personal knowledge.[139] Further, except in South Australia, no provision is made to enable the court to require oral evidence where the party tendering the evidence uses the certificate procedure. On the other hand, some conditions are too limiting. For example there is the requirement that the print-out be produced during a period when the computer was being used regularly to store or process information. Tapper criticises the requirement that the information recorded be that ordinarily supplied and the requirement that it be shown that the computer was operating properly. By comparison the South Australian legislation achieves some control over input by the definition of data as a statement or representation of fact that has been transcribed by methods ‘the accuracy of which is verifiable’ into the form appropriate to the computer. There is also the requirement that the statements must be based on information normally acceptable in court as evidence[140] and that the court must be satisfied that there is no reasonable cause to suspect any departure from the system or any error in the preparation of the data. Tapper argues however, that the common requirement that the computer be regularly used should go to weight rather than admissibility.[141] Many of the conditions, however, are relevant to weight, not admissibility. The legislation generally requires extensive proofs of matters going to the reliability of the computer and its systems and the accuracy of the computer. These were not satisfied by the informant in the case of Mehesz v Redman.[142] That case related to driving offences, including driving with an excessive blood alcohol level. The evidence that was sought to be tendered about the blood analysis was produced by means of an ‘auto-lab data analyzer.’ Accepting that the equipment came within the definition of computer, it was held by Mr Justice Zelling, on appeal, that there was no evidence that satisfied the provisions of s 59b of the Evidence Act 1929 that the computer was correctly programmed, or that the data from which the output was produced was systematically prepared upon the basis of information that would normally be acceptable in a court of law as evidence of the statements or representations contained in or constituted by the output. He held further that there was simply no evidence at all which would enable him to come to any conclusions on the matters listed in (c) and (g) of s 59b(2). These included—no reasonable cause to suspect any departure from the system, or any error in the preparation of the data; the computer not having been subject to malfunction during the relevant time that might affect the accuracy of the output; there having been no alterations to the mechanisms that might affect the accuracy of the output; that records had been kept of alterations to the mechanisms and processes of the computer; that there was no reasonable cause to believe the accuracy or validity of the output had been adversely effected by improper processes, procedures, or inadequate safeguards.
(c) ACT Legislation. The ACT provisions do not apply in criminal proceedings and have been criticised on this ground. The Tasmanian Law Reform Commission has also criticised the legislation on the grounds that it attempts to list ‘the persons and institutions which may wish to adduce computer evidence’ and that the discretion to exclude is confined to cases in which the court has ‘reason to doubt the accuracy or authenticity. ...’[143]
(d) Experience of Legislation. Practitioners in jurisdictions which have specific computer provisions have not yet referred to any particular difficulties in tendering computer produced evidence. The experiences cited, however, suggest that opposing parties have not attempted to challenge the tender. Some examples have been given however where parties abandoned the litigation because they could not produce the detailed evidence required to satisfy the conditions of admissibility. One complaint received was that there was no requirement to divulge the programming. Without this, it was impossible to analyse the computer produced evidence for accuracy.
(e) Safeguards. The South Australian legislation certificate provisions which contains a discretion enabling the court to require oral evidence of the matters contained in the certificate. This is not provided in the other legislation. It should be a minimum safeguard.
345. Telecommunications. The legislation creating an exception for telecommunications makes the giving of notice a condition precedent to admissibility. No power is given, however, to dispense with compliance with this requirement.[144]
[1] Myers v DPP [1965] AC 1001, 1019 (Lord Reid).
[2] EM Morgan, Introduction, in American Law Institute, Model Code of Evidence, Philadelphia, 1942, 46.
[3] EM Morgan & JM Maguire. ‘Looking Backward and Forward at Evidence’ (1937) 50 Harv L Rev 909, 921.
[4] See Law Reform Commission of NSW, Report No 29, The Rule Against Hearsay Govt Printer, Sydney, 1978; Law Reform Commission of NSW, Report No 17, Evidence (Business Records) Sydney, 1973; New Zealand Torts and General Law Reform Committee, Report, Hearsay Evidence, 1967: Law Reform Commission of Queensland. Report No 19, The Law Relating to Evidence, 1975: Law Reform Commission of Tasmania, Working Paper, Law of Evidence—The Hearsay Rule, 1971; Committee on Supreme Court Practice and Procedure, Final Report, HMSO. London, 1953: Scottish Law Commission, Memorandum No 46, Law of Evidence, Edinburgh, 1981: Criminal Law Revision Committee, 11th Report, Evidence (General) London, 1972: Law Reform Commission of Canada, Report. Evidence, Ottawa, 1975: Law Reform Committee of Great Britain, 13th Report, Cmnd 2964, Hearsay Evidence in Civil Proceedings, London. 1966: Criminal Law and Penal Methods Reform Committee of SA, Third Report, Court Procedure and Evidence, Adelaide, 1975: Law Reform Commission of Ontario. Report, The Law of Evidence, Ontario, 1976. See also DE Harding. ‘Modification of the Hearsay Rule’ (1971) 45 ALJ 531: WB Campbell. ‘Recent and Suggested Reforms in the Law of Evidence’ [1967] UWALawRw 4; (1967-8) 8 UWA L Rev 61: and RW Baker, The Hearsay Rule, Pitman, London, 1950, 167.
[5] Myers v DPP [1965] AC 1001, 1020. 1028, 1050, 1037 citing Sturla v Freccia [880] 5 App Cas 623 (HL). See for example Re Gardner (1968-69) 13 FLR 345; Ratten v R [1922] AC 378: R v Van Beelen (1974) 9 SASR 163: R v Clune (No 1) [1975] VicRp 72; [1975] VR 723.
[6] Note: legislation was enacted in Tasmania and the ACT which attempted a more general reform of the area. In both jurisdictions. however, the common law rule and exceptions continue to apply subject to the changes made in the legislation.
[7] Baker. 24.
[8] Some of the examples listed in footnotes below are contained in Law Reform Commission of NSW. Report No 29, ‘The Rule Against Hearsay’ Sydney, 1978, 33 and Law Reform Commission of NSW. Hearsay Evidence: An Outline of the Twenty-Ninth Report of the NSW Law Reform Commission, Sydney, 1978, 33 (NSWLRC Hearsay Summary). Cases additional to those cited in that Report and Summary have also been noted in the footnotes below. See also Law Reform Committee of Great Britain. 13th Report, Hearsay Evidence in Civil Proceedings, Cmnd 2964, London, 1966, para 7; Criminal Law Revision Committee, England and Wales. 11th Report. Evidence (General) Cmnd 4991, London. 1972, para 228.
[9] Grew v Cubitt [1951] 12 TLR 305: Jones v Metcalfe [1967] 3 All ER 205: R v McLean (1967) 52 Cr App R 80. Cf R v O’Linn (1960) 1 SA 545. See also RC Savage, ‘Reforms in the Law of Evidence [1969] NZLJ 222. Note: Jones v Metcalfe was distinguished in Guy v R [1978] WAR 155.
[10] See R v Sealby (1965) 1 All ER 701.
[11] Poriotis v Australian Iron and Steel Co Ltd (1963) 63 SR (NSW) 991. See also Mutch v Country & Suburban Stock Feeds (1966) 2 NSWR 708 (Herron CJ diss); Nalder v Dutch-Australian Contracting Co Pty Ltd [1960] VicRp 70; [1960] VR 458.
[12] Hollington v Hewthorn [1943] 1 KB 587.
[13] See Patel v Customs Comptroller (1966) AC 356. See also Soloman v Forrest (1856) 1 VLT 64; R v McNamara [1916] VicLawRp 76; [1917] VLR 407. Compare Re Gardener (1967) 13 FLR 345 where it was held that an airline ticket was not admissible as evidence that the person named had received and used the ticket to leave Australia at the time recorded on the ticket.
[14] See R v Erith (Inhabitants) [1807] EngR 311; (1807) 8 East 539; R v Day [1841] EngR 86; (1841) 9 C & P 722; R v Rishworth (Inhabitants) [1842] EngR 166; (1842) 2 QB 476; R v Young [1923] SAStRp 1; [1923] SASR 35; Carlton and United Breweries Limited v Cassin [1955] VicLawRp 43; [1956] VLR 186, 193; Stock v Orcsik [1977] VicRp 46; [1977] VR 382, 383. In most instances, people rely on what parents have told them about their age. The parents in turn, if it is analysed closely, rely on hearsay themselves in the form of implied assertions from hospital staff as to the identity of the child. The reality in many cases will he that when a person states his age he is in fact giving second hand hearsay.
[15] Slobart v Dryden (1836) I M & W 615.
[16] R v Thompson [1912] UKLawRpKQB 100; [1912] 3 KB 19. See also R v Schwarz [1923] SAStRp 39; [1923] SASR 347.
[17] See JA Gobbo. D Byrne, JD Heydon Cross on Evidence, 2nd Aust edn, Butterworths, Sydney, 1979, para 18.103ff.
[18] See Sparks v R [1964] AC 964 and R v Townsend [1965] Crim J Rev 367. See Criminal Law Revision Committee, para 250; cf Mcleod-Lindsay case in G Hawkins, Beyond Reasonable Doubt, ABC, Sydney. 1977, 118.
[19] O’Meally v R [1952] VicLawRp 24; [1952] 1 VLR 499. Statements by a solicitor (since deceased) to his client that costs had not been paid were not admissible—Jones v Jones (1907) 24 WN (NSW) 110: cf WA Trustee, Executor & Agency Co Ltd v O’Connor [1955] WALawRp 5; (1955) 57 WALR 25—solicitor’s letter to client re contents of will.
[20] See Re Van Beelen (1974) 9 SASR 163. Sec also R v Turner (1975) 61 Cr App R 67. 87: Demeter v R (1977) 75 DLR (3d) 251; R v O’Brien (1977) 76 DLR (3d) 513): R v Szach (1980) 23 SASR 504.
[21] See below, para 334.
[22] See below, para 334 and Appendix C, para 78. See also Law Reform Commission of NSW, para 1, 2, 37.
[23] Criminal Law Revision Committee, para 228-31.
[24] eg R v Bedingfield (1879) 14 Cox CC 341.
[25] It is not suggested that evidence of statements of a testator about what he meant to do in his will should be admissible. See Turner J, ‘Reforms in the Law of Evidence’ [1969] NZLJ 211, 223; Charter v Charter (1874) LR 7 HL 364; Atkison v Morris [1896] UKLawRpPro 48; [1897] P 40.
[26] Law Reform Committee of Tasmania, Working Paper, Law of Evidence—the Hearsay Rule, 1971, 3: Brown v R [1913] HCA 70; (1913) 17 CLR 570; Heron v Baird [1921] WALawRp 8; (1921) 23 WALR 47; Vocisano v Vocisano (No 2) (1973) 1 ACTR 142, 48 ALJR 157; Adelaide Chemical and Fertilizer Co v Carlyle [1940] HCA 44; [1940] 64 CLR 514.
[27] A criticism voiced by the Law Reform Commission of NSW, para 1.2.17 to 1.2.38. See also the NSWLRC Hearsay Summary, p 6. Criminal Law Revision Committee, para 225; and Law Reform Committee of Great Britain, para 5.
[28] This is rectified in the legislation applying in the Christmas and Cocos (Keeling) Islands.
[29] Law Reform Commission of NSW, para 1.2.32.
[30] Law Reform Commission of NSW, para 1.2.34. See for example Kenos v Hornberg No 2 (1963) 37 ALJR 162.
[31] Law Reform Commission of NSW. para 1.2.21. Note also Robinson v The Trustees Executors & Agency v Co Ltd [1931] VicLawRp 56; [1931] VLR 369—exclusion of statement by deceased that she had executed a declaration of trust under duress.
[32] Eg Ward v HS Pitt and Co [1913] UKLawRpKQB 30; [1913] 2 KB 130, 140 (Hamilton LJ) citing R v Inhahitants of Worth [1843] EngR 252; (1843) 4 QB 132, 114 ER 847.
[33] Re Gardner’s Will Trusts [1936] 3 All ER 918, 941, (Bennett J). Perhaps the statement should have been let in on the around that it was an admission by a predecessor in title of the plaintiff, who was executor of the will of the trustee.
[34] Ward v HS Pitt and Co [1913] UKLawRpKQB 30; [1913] 2 KB 130.
[35] Taylor v Witham [1876] UKLawRpCh 220; (1876) 3 Ch D 605.
[36] See Peaceable d Uncle v Watson [1811] EngR 375; (1811) 4 Taunt 16; 138 ER 232; R v Birmingham Overseers (1861) 1 B and S 763; [1861] EngR 948; 121 ER 897: R v Exeter Guardians (1869) LR 4 QB 341; Re Adams [1922] P 240.
[37] Cf Executor Trustee & Agency Co of South Australia Ltd v The Insurance Office of Australia and the Commonwealth Railway Commissioner [1949] SAStRp 23; [1949] SASR 337.
[38] For discussion of this requirement see Pallante v Stadiums Pty Ltd [1976] VicRp 32; [1976] VR 363.
[39] Gaio v R [1960] HCA 70; (1960) 104 CLR 419.
[40] eg Cross on Evidence, para 18.143 and above para 284.
[41] Appendix C, para 84.
[42] See for example. Law Reform Committee of Tasmania, Occasional Paper. The Hearsay Rule, Recommendations, Unpublished, 1972, 4, and Criminal Law Revision Committee, para 233 and 357 which described the distinction as ‘oversubtle’.
[43] United States v De Sisto [1964] USCA2 463; 329 F 2d 929 (1964).
[44] Medlin v County Board of Education et al (1914) 167 NC 239, 241—see Ontario Law Reform Commission Report. The Law of Evidence, 1976, Ontario, 42.
[45] A Roden, ‘Criminal Evidence—The Law and the Gobbledegook’, in Proceedings of the Institute of Criminology, No 48, Criminal Evidence Law Reform, University of Sydney. 1981, 24.
[46] Law Reform Commission of NSW, para 1.2.37. For recent example, see R v Suleyman Gelal, unreported, Victorian Court of Criminal Appeal (12 October 1982).
[47] Law Reform Committee of Tasmania, 35 and see R Cross, ‘Some Proposals for Reform in the Law of Evidence’ (1961 ) 24 ML Rev 32, 46. See also WB Campbell, ‘Recent and Suggested Reform in the Law of Evidence’ (1967-8) 8 WAL Rep 61, 75.
[48] JB Weinstein & MA Berger, Weinstein’s Evidence, Matthew Bender, New York, 1979, 801-82. See below, para 665, 678.
[49] Law Reform Commission of Ontario, 43.
[50] Cross on Evidence, para 10.48.
[51] See below. para 341.
[52] See Appendix C, para 94.
[53] AIR Manual, 965.
[54] Other exceptions—complaints in sexual cases. statutory hearsay exceptions and ‘res gestae’.
[55] Jones v South Eastern and Chatham Rail Companies Managing Committee (1918) 87 LJR 13 775, 779 (Neddle J).
[56] Cross on Evidence, para 10.25.
[57] Proceedings of Institute of Criminology, No 48, 24. See also Campbell, 74-6.
[58] Damon v Snyder [1970] VicRp 11; [1970] VR 81, 82.
[59] JH Chadbourn (ed) Wigmore on Evidence, Little Brown & Co. Boston, 1979, para 680; Commissioner for Government Trust Board v Adamcik [1961] HCA 43; (1961) 106 CLR 292, 298, 301; R v Schaferrius [1977] Qd R 213, 219: Ramsay v Watson (1961) 108 CLR 643, 649; cf Gardiner v Motherwell Machinery and Scrap Co Ltd [1961] 1 WLR 1424, 1432.
[60] Gordon v R (1982) 41 ALR 64: Ramsay v Mason [1961] HCA 65; (1961) 108 CLR 642, 647; see also Steffen v Ruban (1966) 84 WN (Pt 1) (NSW) 364: R v Reiner (1974) 8 SASR 102, 109-10: R v Tompkin [1975] Qd R 1; R v Schaferrius [1977] Qd R 213; Evans v Hartigan [1941] NSWStRp 31; (1941) 41 SR (NSW) 179; 58 WN 174: cf Sych and Sych v Hunter (1974) 8 SASR 118-119 For the position of evidence assembled by a psychiatrist from relatives of the patient.
[61] For differing practices in the Family Court see Bar Mordecai and Bar Mordecai [1982] FamCA 28; (1982) FLC 91-260.
[62] See Appendix C, para 89.
[63] See Appendix C, para 91. Other relevant exceptions include contemporaneous statements of health or state of mind: see also the legislative exceptions, below para 341 and Appendix C, para 92-4.
[64] R v Abadom [1983] 1 WLR 136, 131.
[65] Family Law Regulations 1976 (Cth) Reg. 117. See In the Marriage of Foster and Foster [1977] FamCA 71; (1977) FLC 90-281, 76, 514: In the Marriage of Hogue and Haines (1977) FLC 90, 259 (Wood J).
[66] MD Broun & SG Fowler, Australian Family Law and Practice CCH, Sydney, 198,. vol 1, para 24-008.
[67] See below, para 341.
[68] Comment by Moffitt J in Harding 564-5.
[69] eg The Statue of Liberty [1968] 2 All ER 195: R v Pettigrew [2006] EWCA Crim 2000; (1980) 1 Cr App R 39: JC Smith. ‘The Admissibility of Statements by Computer’ [1981] Crim L Rev 387. For argument that machine produced evidence is hearsay, see P Pengilley. ‘Comment: Machine Information: Is it Hearsay’ (1982) 13 MUL Rev 617.
[70] See Harding 545 and Law Reform Committee of Great Britain, para 11.
[71] [1965] AC Tool. See also Australian Law Reform Commission. Issues Paper No 3, para 113: E Griew. ‘What The Butler Said He Saw’ [1965] Crim L Rev 91; 1 Fagelson, ‘The Problem of Reliable Hearsay Evidence’ (1976) 92 LQ Rep 26. For differing practices in Family Court see Bar Mordecai and Bar Mordecai [1982] FamCA 28; (1982) FLC 91-260. See also B Hart, Submission (30 September 1983).
[72] See eg, Scottish Law Commission, Memorandum. No 46, The Law of Evidence, 1980, Edinburgh, para 1.2.15.
[73] See respectively, para 5, para 228, and para 1.2.16. See also Moffit J in Harding 565.
[74] ibid and the Law Reform Commission of NSW, 1.2.15.
[75] The legislation is collected and compared in A Sowden, Evidence Research Paper No 1 Comparison of Legislation applying in Federal Courts and Courts of the and Territories, Australian Law Reform Commission. Sydney, 1981, ch 9. See also Appendix C. para 92-4.
[76] s 40A.
[77] Evidence Act 1929 s 45b.
[78] See below paras 419-423; 664-70.
[79] DP Farrington, K Hawkins & SM Lloyd-Bostock. Psychology, Law and Legal Processes, Macmillan Press. London, 1979. 13; WM Marston, ‘Studies in Testimony’ (1924) 15 Journal of Criminal Law and Criminology, 5-31.
[80] D Thomson, ‘Do the Findings of Experimental Psychology Have any Relevance for Law Procedures?’ Paper presented at the First Psychology, Psychiatry and the Law Congress, Melbourne. 1980, unpublished.
[81] Law Reform Commission of Western Australia. Project No 27, Part 1, Report, The Admissibility of Evidence of Computer Records and other Documentary Statements, Perth, 1980. para 2.9.
[82] Law Reform Commission of WA, para 2.13.
[83] P Street. Submission (July 1982) example given: defendant tenders statement, maker not available that day, case will end that day—options are to adjourn, admit or exclude ‘in the interests of justice’. Notice would minimise such difficulties.
[84] eg, Nachsatz v Prout [1959] VicRp 91; [1959] VR 694—statement to police by motor accident victim who died before trial.
[85] Evidence Act 1958 s 55(4) and s 55(3).
[86] R v Cupit [1978] TASStRp 9; [1978] Tas SR 95: R v England [1978] TASStRp 5; [1978] Tas SR 79.
[87] JR Peden. ‘Proving Computer and Business Records in Courts (1974) 6 Commercial Law Association Bulletin 31, 32.
[88] Cartwright v Richardson (W) & Co Ltd [1955] 1 All ER 742 and Harvey v Smith-Wood [1964] 2 QB 171.
[89] cf Cassidy v Engwirda Construction Co [1967] QWN 16 and Beneficial Finance Corporation Co Ltd v Conway [1970] VicRp 39; [1970] VR 321.
[90] See generally Cross on Evidence, para 20.10; Morley v National Insurance Co [1967] VicRp 61; [1967] VR 566; Warner v Women’s Hospital [1954] VicLawRp 14; [1954] VLR 410: Lenechan v Queensland Trustees Ltd [1965] Qd R 559: Dass v Masih [1968] 2 All ER 226.
[91] See Bowskill v Dawson [1954] 1 QB 288 and White v Venus [1968] SASR 253, 85.
[92] Barkway v South Wales Transport Limited [1949] 1 KB 54; Edmonds v Edmonds [1947] P 67.
[93] Berjak (Victoria) Pty Ltd v Peerless Processing Co Pty Ltd [1963] VicRp 71; [1963] VR 515.
[94] Newton v Piper [1968] 1 NSWR 42.
[95] Tobias v Allen (No 3) [1957] VLR 321, 223 (Sholl J).
[96] Robinson v Stern [1939] 2 KB 260; Evon v Noble [1949] 1 KB 222; Plomien Fuel Economiser Co Ltd v National Marketing Company [1941] Ch 248; Manser v London Passenger Transport Board [1948] WN 206: Re Norman King and Co Pty Ltd [1960] SR (NSW) 98.
[97] Cartwright v Richardson (W) and Co Pty Ltd [1955] 1 All ER 742; Bearmans Limited v Metropolitan Police District Receiver [1961] 1 All ER 384; Jarman v Lambert and Cooke (Contractors) Limited [1951] 2 KB 937.
[98] Robinson v Stern [1939] 2 KB 260.
[99] Jarman v Lambert and Cooke (Contractors) Ltd [1951] 3 KB 937.
[100] ibid.
[101] Robinson v Stern [1939] 2 KB 260.
[102] Law Reform Commission of WA, para 3.9.
[103] Law Reform Commission of NSW, Report No 17, Evidence (Business Records) Sydney, 197; para 51.
[104] G Samuels, ‘The Proof of Business Records’ (1979) 11 Commercial Law Association Bulletin, 73, 80-1.
[105] Law Reform Commission of NSW, Report No 17, para 51-3.
[106] id. para 40.
[108] id. 569.
[109] id, 571.
[110] id, 548 (Hope JA) 550 (Reynolds JA).
[111] For a recent example of judicial anxiety about admitting hearsay evidence—under the wide ‘books of account’ provisions—see R v Smart [1983] VicRp 22; [1983] 1 VR 265, 292-3: ‘prima facie’ evidence provision read down (‘will not often be adopted where there is other conflicting evidence’), the common law discretion to exclude substantially modified and extended, the legislation interpreted to require each entry to he related to the business affairs and the court reserved for future consideration the admissibility of ‘double hearsay’ under the legislation.
[112] [1979] 2 NSWLR 193. 204.
[113] See JR Peden. ‘Proving, Computer and Business Records in Court’ (1974) 6 Commercial Law Association Bulletin 31, 3-1.
[115] This was the intention of the NSW Law Reform Commission—see Report No 17, Evidence (Business Records) Sydney. 1973. para 28; cf Albrighton v Prince Alfred Hospital and Ors [1980] 2 NSWLR 542 at 569 where it was held that statements of present symptoms in hospital records are admissible under the legislation—the reasoning is not clear; it appears to be that evidence of the patient’s statement of present pain was admissible at common law and that therefore an entry by a qualified person of that statement was admissible under the legislation. See R Bartley. Submission (16 June 1983). The Act, however. applies where ‘evidence of a fact’ is admissible and enables a statement of that fact in a record to he admitted. The issue would appear to be whether the patients statement or the fact asserted in the statement is the relevant fact.
[116] Evidence Act 1905 (Cth) s 7H; Evidence Act 1898 (NSW) s 14CL.
[117] [1979] 4 ACLR 160.
[118] [1980] 2 NSWLR 542, 568.
[119] s 40A (a provision based on American precedents).
[120] R v Barker [1976] TASStRp 5; (1976) Tas SR 52: Bates v Nelson (1973) 6 SASR 149: Note distinction drawn in O’Donnel v Dakin [1966] TASStRp 12; [1966] Tas SR 87, 89—statement of medical opinion about sobriety treated as statement of observable fact.
[121] Law Reform Commission of NSW, Working Paper, Evidence (Business Records) Sydney 1972, para 141.
[122] [1966] TASStRp 12; [1966] Tas SR 87.
[123] [1971] Tas SR 193.
[124] O’Donnell v Dakin [1966] TASStRp 12; [1966] Tas SR 87, 89: R v Barker [1976] TASStRp 5; [1976] Tas SR 52: Bates v Nelson (1973) 6 SASR 149.
[125] Masher and Deegan v Morgan [1971] TASStRp 17; [1971] Tas SR 192.
[126] id, 209.
[127] R v Barker [1976] TASStRp 5; [1976] Tas SR 52, O’Leary v Lamb (1974) 7 SASR 159.
[128] In Tasmania. the other business records section is also available.
[129] eg, overseas experience of insurance brokers with on-line access to insurance (see Australian Computer Users Association, Seminar Papers, ‘Detection and Prevention of Computer-Related Crime’ Sydney.—25 February 1981); the bank customer supplying, information of credits to be made to employee salary accounts by delivery of magnetic tape (Law Reform Commission of WA, Working paper, Admissibility in Evidence of Computer Records and other Documents, Perth, 1978, para 3.1ff); now the automatic bank teller machines.
[130] See Appendix C, para 94 (text accompanying n 134: 153).
[131] Law Reform Commission of WA, 17.
[132] C Tapper, ‘Evidence From Computers’ (1975) 4 Rutgers Journal of Computers and the Law 324, 392.
[133] JC Smith. letter to the Times 30 March 1983 re Police & Criminal Evidence Bill 1983.
[134] Law Reform Commission of NSW, Report No 17, Evidence (Business Records) Sydney. 1973, 90; Law Reform Commission of Tasmania, Report No 17, Report and Draft Bill Relating to the Admissibility of Computer Data in Evidence, Govt Printer, Hobart, 1978, 5, 6.
[135] Law Reform Commission of NSW, para 4; Law Reform Commission of Tasmania, 7.
[136] id. para 202; WALRC Report No 27, 17; Law Reform Commission of WA, 17.
[137] This view has also found favour with the Law Reform Commission of Western Australia except that in Report No 27 it has recommended that there be no reference to ‘business’ or ‘records’ in any proposal. It recommended legislation which would extend to matters recorded in a computer. This is clone by the definition of ‘document’. It should be noted that Tapper has suggested after close examination of the alternatives that a general business record statute is to he preferred and suggests that it be modelled on the English Criminal Evidence Act 1965. See C Tapper, ‘Evidence from Computers’ (1975) 4 Rutgers Journal of Computers and the Law, 324. 405.
[138] Tapper, 394f.
[139] id. 397.
[140] id. 395-6.
[141] id, 399-400.
[143] Law Reform Commission of Tasmania, 7.
[144] See above Appendix C, para 94 (text accompanying n 156).
346. A ‘Rule’ that does not Exist? It is generally accepted that there is a rule of exclusion which excludes opinion evidence. It has been argued, however, that the approach of the courts and the gravity and the extent of the exceptions to any such rule are such that it cannot meaningfully be said any longer to exist. It is pointed out[1] that the reaction of the judiciary, especially in the United Kingdom and Australia, has been to disregard the rules of opinion evidence or at least to be loathe to disturb the rulings of trial courts. In addition, the rule has suffered from a paucity of judicial analysis[2] and has often received only lip service.[3] Cowen and Carter comment:
The opinion rule has appeared to work in England only because it has been laxly applied. As expediency this is commendable. From the point of view of the rational exposition of the law as applied in the courts, a proposition, the validity of which diminishes in proportion to the strictness with which it is applied, is not, however, ideal.[4]
347. On the other hand, if there is a rule, it is said to be a paper tiger. Its substance is singularly lacking,[5] the ‘exceptions’ for lay witnesses accounting for most situations in which they could possibly give evidence which is relevant and not markedly more prejudicial than probative. The ‘rule’ functions in good part to provide a device by which judges can exclude a piece of evidence if dissatisfied with its persuasiveness or reliability. The major exception, of course, allows opinion evidence by experts within certain parameters. The result is that opinion evidence is generally admissible save in certain limited situations. It is arguable that the exceptions have become the rule and that in such circumstances it is more realistic to recognise the de facto situation and to admit opinion evidence unless there is a reason not to.
348. Recent Definition of Opinion Evidence. Justice Cox recently[6] took an approach to the definition of opinion evidence different to the more traditional—‘inference from observed ... data’. His Honour suggested:
The essential idea of opinion seems to be that it is a matter about which doubt can reasonably exist, as to which two persons can, without absurdity, think differently ... When testimony is divided, or uncertain, the existence of a fact may become doubtful, and, therefore, a matter of opinion.
Wigmore was critical of this analysis, calling the comments of Lewis quoted by Mr Justice Cox ‘the most careful attempt to justify this false verbal antithesis’ but going on to say:
This doctrine is not sustained by sound psychological or metaphysical analysis.[7]
349. The Fact/Opinion Distinction. Both Law Reform Commissions and commentators have criticised the arbitrariness of the distinction drawn by the courts between fact and opinion evidence.[8] Their attitude is summarised in Thayer’s view:
In a sense all testimony to matters of fact is opinion evidence; ie it is a conclusion formed from phenomena and mental impressions.[9]
A witness when testifying cannot but formulate his words as recollection of what he perceived; he cannot aspire to perfect and unmodified reproduction of previously perceived data. It is frequently pointed out that the distinction between fact and opinion, upon which the modern rule depends, is one of degree rather than of kind.[10]
350. Practical Difficulties. Because of the theoretical problems in drawing the line between fact and opinion it is not surprising that practical difficulties have also been experienced in classification. In Weal v Bottom,[11] for example, evidence was given by a driver qualified by experience as to the behaviour of semi-articulated vehicles under specific weather conditions, the reasons for their behaviour and the need for the adoption of care. The statements were said to be based upon personal knowledge and observation not of the instant vehicle but of similar ones over a long period. Chief Justice Barwick[12] held that evidence could be given by someone, whom he classed as a common witness, of the capability of a vehicle with which he was not personally acquainted in circumstances which he did not on the particular occasion actually experience. He noted, ‘such a person [a common witness] could speak of the capability of the vehicle in the described circumstances as a fact within his experience or observation’. He held that such evidence was factual and could be provided by a lay witness with the appropriate experiential qualifications. On this basis a common witness may give evidence upon a hypothetical situation in respect of which he has no opinions to offer which are based upon his perceptions. Not only did His Honour seem to be creating a new means of distinguishing between fact and opinion but to be introducing an intermediate category between those of the lay/common witness and the expert. If this analysis is correct, it seems that factual testimony need no longer be confined to the recounting of personally observed states or incidents, without the drawing of inferences. A witness may now testify as to his own experience, relate it to similar instances in the relevant case with whose details he is not personally acquainted and even draw preliminary generalisations and conclusions without lapsing into the category of ‘opinion testimony’. Justice Menzies disagreed with the Chief Justice stating that the evidence given by the witness was for the most part opinion evidence and should not have been admitted because the witness was not an expert in the sense that he did not rely on some organised branch of knowledge.[13] The strained distinctions and the disagreements demonstrate the unsatisfactory nature of the fact/opinion distinction.
351. Distortion of Presentation of Testimony. The insistence upon application of the distinction between evidence of opinion and fact to the testimony of witnesses can be counter-productive. For example, the ‘rule’ preventing the giving of opinion evidence can disturb ordinary speech patterns by demanding testimony as to ‘fact’ rather than ‘opinion’ when very often the difference between the two is of little moment. If a witness is constantly interrupted by objections and requests for reformulations of his testimony in terms of less inferential language, he may well lose his grip on what precisely he is saying. Important elements may be thoughtlessly discarded by the witness and aspects of his testimony may be presented in a way that puts them in a different light to that in which they would otherwise appear. People customarily express themselves in terms of opinion or belief when testifying as to their perceptions. Judge Learned Hand wrote:
Every judge of experience in the trial of causes has again and again seen the whole story garbled, because of insistence upon a form with which the witness cannot comply, since, like most men, he is unaware of the extent to which inference enters into his perceptions. He is telling the ‘facts’ in the only way that he knows how, and the result of nagging and checking him is often to choke him altogether, which is, indeed, usually its purpose.[14]
Even the use of expressions in a witness’ testimony such as ‘I think’, ‘I cannot be positive, but I think’ or ‘my impression is’ is sufficient to render his words inadmissible under the present rule against opinion evidence. This is so, even though the jury or the tribunal of fact can quite easily assess whether the witness’ words spring from mere speculation or a thoroughly informed knowledge. To place upon the lay witness the task of distinguishing within a fact/opinion dichotomy, a task to which the law has shown itself to be unequal for the past two centuries, is surely unfair and unsatisfactory for all concerned. Much better, then, to give the judge the power to exclude testimony from the layman containing his opinions when it does not have positive advantages. The modern distinction has lost sight of the original reason for the exclusion of opinion evidence—the inherent danger of testimony that was simply uninformed speculation.
352. Qualification of the Expert. It is unclear whether experience provides a mode of qualification sufficient to qualify an expert under present law.[15] If the correct view is that expertise cannot be obtained by experience, the distinction lacks conceptual justification. The function of expert evidence is generally said to be the rendering of assistance to the tribunal of fact. The means by which a witness qualifies himself to render that assistance should be no concern of the courts once it is clearly demonstrated that that expertise in fact exists. Moreover, the evident bias in favour of academically acquired expertise savours unfortunately of intellectual arrogance.
353. Introduction. Each of the three tests used to limit the matters upon which experts may give expert opinion evidence are open to serious criticism.
354. Common Knowledge. Two approaches are being employed by the courts.[16] One approach propounds the theory that the mere existence of an area of common knowledge precludes the reception of expert evidence and the other questions whether the tribunal of fact would be ‘competent’ to reach an informed decision without the advantage of the opinions. A resolution between these is essential. Other difficulties also exist.
• Definition Problems. It is conventionally asserted that expert testimony that intrudes upon an area of common knowledge is inadmissible. A clear definition of what constitutes common knowledge, however, is not possible. The concept of common knowledge assumes an ‘ordinary man’ whose most notable characteristic is that for forensic purposes he ‘knows’ about ‘ordinary things’.[17] For the exclusionary rule to be workable the concept must be clearly definable.[18]
• Denial of Rationale. The exclusion of expert opinion evidence in areas of common knowledge lacks theoretical justification. There are many situations in which the trier of fact may have some acquaintance with a subject, along with the rest of humanity, but may yet receive valuable assistance from an expert. An expert may have a more profound understanding and appreciation of matters of which the layman has knowledge. An example is the evidence that may be given by mental health professionals on the ‘normal man’. At present such testimony is proscribed on the ground that the behaviour of the normal/ordinary man is a matter within the jury’s expertise and that to allow a person purporting to have special skill and knowledge in the area to testify about him would be to allow him to usurp the function of the jury.[19] As a result the common knowledge concept has denied the courts testimony on the workings of the memory,[20] by analogy on the process of perception in identification,[21] on veracity,[22] on the provocation to which an ordinary man might in certain circumstances be especially susceptible[23] and, generally, on those not suffering from a recognised psychiatric disease. This has, on occasions, denied to the courts valuable material. It is within areas classified by the courts as of ‘common knowledge’ that many experts are employed in undertaking research that could be very helpful to the courts. Notable among these are the work done by psychologists in conducting research into perception, memory, narration[24] and in demonstrating the fallibilities of eye witness identification[25] and the giving of confessions.[26] A refusal by the courts to utilise the fruits of such research means that they base their decisions on knowledge that is incomplete and out of date. The question should be avoided and we should return to the test of ‘Can the trier of fact usefully receive assistance on this point from the witness?’
355. Area of Expertise Requirement. It is unclear whether there exists in Australia a requirement that, in addition to the existence of the requisite expertise in the skilled witness, his must be an area of expertise.[27] The content of the present law and the experience in the United States, makes it quite possible that such a test will find acceptance. It is possible for an area to be outside that of common knowledge but to be sufficiently novel that one would rightfully hesitate to describe those few skilled in it as possessed of skill within a field of expertise. This approach has been adopted in Queensland and New South Wales by Eagles v Orth and R v Gilmore.[28] It, like the common knowledge requirement, can limit the material available to the court. In the United States the field of expertise test has brought with it a welter of problems in its implementation. The courts have sought refuge from expert opinion evidence in what has become known as ‘the general acceptance test’, asking not only whether there is a field of expertise but also whether the scientific procedures used have gained the requisite standing in the scientific community to be accounted as ‘generally accepted’.[29] This test has been used in the United States to determine whether to receive expert evidence on the validity of polygraph evidence, voice-prints, neutron activation analysis, gunshot residue tests, bitemark comparisons, statements made under sodium pentothal, scanning electron microscope analysis and numerous other forensic techniques. The indications in the judgment of Chief Justice Street in R v Gilmore were that he was prepared to use a test resembling the general acceptance one whose origins are to be found in Frye v United States.[30] However, the advisability of such a course must surely be doubted, having regard to the experience in the United States:
[T]he problems Frye has engendered—the difficulties in applying the test and the anomalous results it creates—so far outweigh the[se] advantages that the argument for adopting a different test has become overwhelming.[31]
356. The difficulties include identifying the relevant scientific field and determining when general acceptance of its theories and techniques exists within the relevant scientific community. The courts have been unpredictable in their application of the test and it excludes much valuable and reliable scientific evidence.[32] A grave danger with the test is that the courts will constantly lag behind the advances of science while they wait for novel scientific techniques to win general acceptance.[33] In a recent decision[34] it was pointed out that:
The Frye standard has been frequently criticised. One author has said: ‘General scientific acceptance’ is a proper condition for taking judicial notice of scientific facts, but not a criterion for the admissibility of scientific evidence. ... In determining whether to require scientific acceptance as a separate prerequisite for the admission of scientific evidence, we make these observations.(1) Such a rule imposes a standard for admissibility not required of other areas of expert testimony, ...
(2) It is inconsistent with modern concepts of evidence, such as embodied in the Federal Rules of Evidence, which provide that ‘[i]f scientific, technical, or other specialised knowledge will assist the trier of fact to understand the evidence or to determine the fact in issue, a witness may testify thereto in the form of an opinion or otherwise’. Fed R Evid 702.
(3) ... Despite its apparent simplicity, distinguishing ‘scientific’ evidence from other areas of expert testimony is a difficult determination in many instances. ... The instance case illustrates this difficulty of classifying evidence as scientific or non-scientific. The defendant says the study of blood flight characteristics is itself a science. The witness, on the other hand, testified it was based primarily upon physics and mathematics, which impart accuracy and predictability to the study.
(4) ‘Acceptance in the scientific community’ is a nebulous concept; as it has been said, ‘court records are full of the conflicting opinions of doctors, engineers and accountants, to name just a few of the legions of expert witnesses’, United States v Stifel, [1970] USCA6 397; 433 F 2d 431, 438 (6th Cir 1970), cert denied, 401 US 994, 91 S Ct 1232, 28 L Ed 2d 531 (1971) (neutron activation analysis evidence admitted), and ‘[I]n testing for admissibility of a particular type of scientific evidence, whatever the scientific ‘voting’ pattern may be, the courts cannot in any event surrender to scientists responsibility for determining the reliability of that evidence’. United States v Williams, [1978] USCA2 671; 583 F 2d 1194, 1198 (2d Cir 1978) (spectrographic voice-identification evidence admitted).
357. The tendency in the United States appears most recently[35] to be one of flexibility toward the admission of scientific evidence and a preparedness to rely upon the discretions outlined in Rule 403 of the Federal Rules,[36] rather than to apply the Frye test.
358. If the Frye test is not, or will not be, part of the law, the problem which gave rise to it—how to cope in the court with new fields of expertise and techniques—is not specifically dealt with by the law. There is a need for appropriate controls. At present reliance is placed on indirect, at times unsatisfactory rules such as the requirement that the witness be suitably qualified or that expert evidence may not be given in areas of common knowledge. The arguments advanced for the Frye test themselves are a criticism of the absence of specific controls. These are:
(i) general acceptance by the relevant scientific community serves the needs of the adversary system by assuring the availability of experts on either side of the disputed issue;[37]
(ii) the test shields the jury from the ‘unwarranted impact’ of new or doubtful scientific or alleged scientific discoveries.[38]
At present the status of the area of expertise test must be accounted as dubious. If the approach of Chief Justice Street is adopted, however, there will unquestionably be substantial problems in the implementation of the general acceptability test. In addition, the judge would frequently have to conduct a voir dire on the admissibility of expert evidence, and then, should the evidence prove to be acceptable, it will have to be represented to the tribunal of fact for an assessment of the weight to be accorded to it. The combination of these factors, when taken in the context of the United States experience of the test and its selective but unpredictable rejection in favour of a discretions approach, combine to suggest that the field of expertise test, together with its general acceptability criterion, should be avoided.
359. The ‘Ultimate Issue’. It is frequently stated that a witness may not express an opinion on the ultimate issues in a case. Reference has been made to the uncertainties of this traditional parameter.[39] It is arguable that the rule proscribes the giving of opinions upon ultimate issues in general and not merely upon the ‘ultimate issue’. This, of course, would make the trial system quite unworkable and has not generally been the approach taken by the courts in Australia. Views differ both as to its correct formulation and as to its application.[40] The courts have departed from the most commonly understood version of the rule when they have felt it appropriate, resulting in an ad hoc development of the law. Its rationale is erroneously .based upon the assumption that the function of the tribunal of fact will be usurped should testimony be given which touches directly upon the issues to be decided. It is on occasion argued, particularly if the testimony is that of an eminent expert, that the mind of the tribunal will be so overborne by evidence on an ultimate issue that a fair and properly considered decision will not be reached. The witness will effectively take over the function of the tribunal of fact. Such an argument misconceives both the function of witnesses and that of judges and juries. It is the witness’ task to present his evidence and that of the tribunal of fact to evaluate it and treat it with the weight that it deserves.[41] Even the most eminent and persuasive of experts cannot and does not step outside this framework and arrogate to himself an arbitral role. If his evidence on an ultimate issue is determinative of the case, that is so only because of the quality of his testimony and its superiority over that of the other patty—not because he plays any part in the adjudicative process. The ultimate issue rule prevents the optimal utilisation of the benefits of expert evidence and, if strictly applied, denies help where it may be most valuable—upon the ultimate issues. Dissatisfaction with the rule is shown in recent decisions suggesting that the real test is that opinions may be given upon the ultimate issue so long as they do not involve a mixed question of law and fact.[42] It is the combination of these shortcomings that has led to almost unanimous criticism by Law Reform Commissions.[43]
360. Family Court. Criticism of the role of the court counsellor and of the welfare officer as a court expert has been identified.[44] It is not proposed, however, at this stage to explore the operation of specific legislative provisions. The intention of the Commission is to consider rules of general application.
361. Cocos (Keeling) Island & Christmas Island Legislation. The scheme of the Stephen legislation is that evidence of lay opinions is not admissible.[45] The opinions of persons specially ‘skilled in ... foreign law, science or art, or in questions of identity or genuineness of handwriting or finger impressions’, are admissible.[46] The effect is that the subjects upon which expert testimony in the form of opinions is given are limited by adoption of an itemised approach. Much would depend on the interpretation of ‘science’.
362. Controlling Admissibility. It is a matter of some controversy whether the opinion that is based upon inadmissible or unadmitted material is itself admissible.[47] Even if it is correct that the opinions of experts are prima facie admissible although they are based upon inadmissible material,[48] it is not clear when such opinions will nevertheless be excluded. As part of the exercise of the criminal trial discretion they may be excluded if led for the prosecution and tending to be more prejudicial than probative. Research has not as yet, however, revealed an occasion when a court has expressly used this discretion. It may be that, when opinions have been classed as inadmissible, or psychiatric reports heavily edited because of the formation of the sentiments expressed in them on the basis of hearsay material, it has been because the evidence was classed as not sufficiently relevant. Once more, the courts have not been specific in their reasons for exclusion, save to speak in the abstract about the interests of justice.[49] It might be argued that at the least the introduction of guidelines for the exercise of such a relevance discretion would be of assistance.[50] If, however, the correct view is that there is a basis rule, then the law may be criticised.
363. Problems with a Basis Rule. A strict implementation of a basis rule could eliminate, for example, opinions of doctors based upon opinions and assistance given by fellow doctors, nurses, technicians, laboratory analysts and even the patient’s relatives. All of these constitute material customarily relied upon by doctors in the formation of their professional opinions. To deny the expert the opportunity, for forensic purposes, of the use of material from sources normally open to him in his professional life would be to drive an uncomfortable wedge between his professional judgments[51] and those which are acceptable to the courts:
The evidence, in this case, indicates that to form an opinion according to recognised psychiatric procedures, the psychiatrist must consider all possible sources of information, including secondhand source information, the reliability, accuracy and significance of which are within the recognised scope of his professional activities, skill and training to evaluate. Hence, while ultimately his conclusion may rest, in part, on secondhand source material, it is none the less an opinion formed according to the recognised normal psychiatric procedures ... The value of a psychiatrist’s opinion may be affected to the extent to which it may rest on secondhand source material; but that goes to the weight and not to the receivability in evidence of the opinion, which opinion is no evidence of the truth of the information but evidence of the opinion formed on the basis of that information.[52]
Dr Plueckhahn, too, has also contended that:
A rule excluding opinions not based upon other admissible material is unduly restrictive, denying assistance whose value could adequately be assessed by the jury. To refuse to the courts, expert opinions formed in the usual way not only excludes potentially helpful material but could also serve to discourage many experts from becoming involved with litigation. It would, thus, affect the credibility of the trial system and magnify the differences between, for example, the legal and the mental health professions.[53]
In any event, in most cases the important facts on which the opinion is based will be established by other evidence. Parties are under strong tactical pressure to do so. To place parties in a position where they can insist on proof of all the bases of the opinion, including that which is not contested, would introduce costly, time consuming and cumbersome procedures.
ENDNOTE
[1] See Z Cowen & PB Carter, Essays on the Law of Evidence, Clarendon Press, Oxford, 1956, 163: see also American Law Institute, Model Code of Evidence Philadelphia. 1942, 198.
[2] See PA Landon, ‘Book Review—Opinion Evidence in Illinois’ (1944) 60 LQ Rev 201.
[3] Cowen and Carter, 163.
[4] id. 164.
[5] id, 165; see also Appendix C, para 95.
[6] See R v Perry (No 4) (1982) 28 SASR 119, 126 quoting GC Lewis, Influence of Authority in Matters of Opinion, (1849) as referred to in JH Chadbourn (ed) Wigmore on Evidence, Little, Brown & Co, Boston, 1978, para 19.
[7] Wigmore on Evidence, ibid.
[8] Law Reform Commission of Canada, Report on Evidence, Information Canada, Ottawa, 1976, 97; Federal/Provincial Task Force of Canada, Report on Uniform Rules of Evidence, Carswell Co Ltd, Toronto, 1982, para 9.1; Scottish Law Commission, Memorandum No 46, Law of Evidence, Edinburgh, 1980, para R.02; ID MacPhail, Research Paper on the Law of Evidence of Scotland, Scottish Law Commission, Edinburgh, para 17.1ff; LH Hollman, The South African Law of Evidence, Butterworths, Durban, 1970, 71; AG Walker & NM Walker, The Law of Evidence in Scotland, William Hodge and Co, Edinburgh, 1964, 431; JM Maguire, Evidence: Common Sense and Common Law, Foundation Press, Chicago, 1947, 24; MI Aronson, MS Weinberg & NS Reaburn, Litigation, Evidence and Procedure, Butterworths, Sydney, 1982, 783; BJ Edwards, Cases on Evidence of the Common Law, 2nd edn. Law Book Co, Sydney, 1974, 14; EW Cleary (ed) McCormick’s Handbook of the Law of Evidence, 2nd edn, West Publishing Co, St Paul, 1972, 109ff; Wigmore on Evidence, para 1919; Law Reform Commission of Canada, Study Papers, Law of Evidence Project, Ottawa, 1973. 28-9; Law Reform Committee of Great Britain, Report No 17, Evidence of Opinion and Expert Evidence, Cmnd 4489, HMSO, London, 1970, para 4; United States Advisory Committee on Federal Rules of Evidence, Now on Rule 701, cited in JB Weinstein & MA Berger, Weinstein’s Evidence, Matthew Bender, New York, 1983, art 7.
[9] JB Thayer, A Preliminary Treatise on Evidence at the Common Law, Rothmans Reprints, New Jersey, 1898, 524.
[10] It is for this reason that the United States Federal Rules have attempted to reduce as far as possible the ramifications flowing from the distinction, the position being that opinion evidence is generally admissible subject to a few quite limited restrictions. See also Federal/Provincial Task Force of Canada, para 9.1; McCormick’s Handbook of the Law of Evidence, 23; Morgan, Basic Problems of State and Federal Evidence, 5th edn, 1976, 193; Learned Hand J, Central Railway Co of New Jersey v Monahan 11 F 2d 212, 214 (1926); EJ Edwards, Cases on Evidence in Australia, 2nd edn Law Book Co, Sydney, 1974, 14; F Bates, The Australian Social Worker and the Law, Law Book Co, Sydney, 1979, 23-4; RW Fox, ‘Expediency and Truth-Finding in the Modern Law of Evidence’, in E Campbell & L Waller (ed) Well and Truly Tried, Law Book Co, Sydney, 1982, 140, 147.
[12] id, 438, with whom Taylor and Kitto JJ agreed.
[13] id. 445.
[14] Central Railway Co v Monahan 11 F 2d 212, 214 (1926).
[15] See Appendix C, para 97-8. See also AA Moenssens & FE Inbau, Scientific Evidence in Criminal Cases, 2nd edn, Foundation Press, New York, 1983, 4, n 5; State v Garcia 357 SW 2d 931 (1962).
[16] See Appendix C. para 102.
[17] See B Brown, ‘The Ordinary Man in Provocation: Anglo-Saxon Altitudes and Unreasonable Non-Englishmen’ (1964) 13 CLQ 303. See also R v Kirkham (1837) 8 CP 115, 119; R v Welsh (1869) 11 Cox CC 336.
[18] cf judicial notice proposal. The definition is not critical in that proposal. If the judge is unclear, he will not act upon the knowledge or will refer to sources to determine whether the knowledge is disputable.
[19] R v Chard (1972) 56 Cr App R 268; R v MacKenney (1981) 72 Cr App R 78. 80.
[20] R v Fong [1981] Qd R 90. 95—‘What a person remembers and how they are likely to remember and the manner in which the human memory works by reconstruction or suggestion or otherwise are every day matters well within the field of knowledge of juries’.
[21] Note the United States attitude. See United States v Fosher [1979] USCA1 12; 590 F 2d 381 (1979).
[22] R v Turner [1975] QB 834, 842—‘We adjudge Lowery v The Queen [1974] AC 85 to have been decided on its special facts. We do not consider that it is an authority for the proposition that in all cases psychologists and psychiatrists can be called to prove the probability of the accused’s veracity. If any such rule was applied in our Courts, trial by psychiatrists would be likely to take the place of trial by jury and magistrates.’ Notably, however, the Court of Appeal did not rule out the possibility of such testimony altogether.
[23] R v Turner [1975] QB 834.
[24] See below, para 420-1, 436, 428-9, 664, 678.
[25] ibid.
[26] See below, para 371-6.
[27] See Appendix C, para 103.
[28] [1976] Qd R 313 and [1977] 2 NSWLR 935 respectively.
[29] See Free v United States 293 F 1013 (1923); Reed v State 283 Md 374; United States v Addison [1974] USCADC 304; 498 F 2d 741 (1974): People v Kelly 17 Cal 3d 24.
[30] 293 F 1013, 1014 (1923). See also the language used by Justice Blackburn in Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141, 161 describing anthropology as ‘a recognised field of study and knowledge’.
[31] PC Gianelli, ‘The Admissibility of Novel Scientific Evidence: Frye v United States, a Half Century Later’ (1980) 80 Columbia L Rev, 1197, 1207-8; M McCormick, ‘Scientific Evidence: Defining a New Approach to Admissibility’ (1982) 67 Iowa L Rev 879, 895ff. See especially United States v Williams [1978] USCA2 671; 583 F 2d 1194, 1198 (1978): United States v Baller [1975] USCA4 375; 519 F 2d 463 (1975); State v Catanese 368 So 2d 975, 980 (1979)—‘We agree that the ‘general acceptance’ standard of Frye is an unjustified obstacle: DW Elliot, ‘Lie Detector Evidence: Lessons from the American Experience’ in E Campbell & L Waller (ed) Well and Truly Tried, Law Book Co. Sydney, 1982, 100, 118.
[32] Gianelli, 1208-21; McCormick 490; PL Kirk, ‘The Interrelationship of Law and Science’ (1964) 13 Buff L Rev 393.
[33] US v Sample 378 F Supp 44, 53 (1974); EJ Imwinkelried, ‘A New Era in the Evolution of Scientific Evidence—A Primer on Evaluating the Weight of Scientific Evidence’ (1981) 23 William and Mary L Rev 261, 265.
[34] State v Hall 297 NW 2d 80, 84-5 (1980).
[35] See the approach in Coppolino v State 223 So 2d 68 (1968) and the comments of Imwinkelried, 265-6. See also State v Catanese 368 So 2d 975; US v Williams [1978] USCA2 671; 583 F 2d 1194 (1978); US v Stifel [1970] USCA6 397; 433 F 2d 431 (1970); US v Baller [1975] USCA4 375; 519 F 2d 463 (1975); People v Marx 54 Cal App 3d 100; 126 Cal Reptr 350 (1975). Compare, though, the decisions of the Supreme Courts of California and New York adopting the Frye test in 1982: People v Shirley 641 P 2d 775 (1982); People v Hughes 452 NYS 2d 929. See J Galban, ‘Evidence’ (1983) Ann Survey Am Law, 175, 203ff.
[36] See para 643, n 6.
[37] It is no guarantee. however of adequate testimony or a correct assessment. See US v Baller [1975] USCA4 375; 519 F 2d 463 (1975) and R v Gilmore [1977] 2 NSWLR 935. Also M Hall & A Collins, ‘The Admission of Spectographic Evidence: A note on R v Gilmore’ (1980) 54 ALJ 21.
[38] United States v Addison [1974] USCADC 304; 498 F 2d 741 (1974); People v Kelly 130 Cal Rptr 144 (1976); Reed v State 391 A 2d 364 (1978).
[39] See Appendix C, para 105.
[40] See Appendix C, para 105.
[41] See remarks to this effect by the Full Court of the Family Court in In the Marriage of Hall and Hall [1979] FamCA 73; (1979) FLC 90-713, 78, 819.
[42] See SA Schiff, Evidence in the Litigation Process, Carswell Co Lid, Toronto, 1978, vol 1, 464: Fisher v R (1961) 130 CCC 20: Grismore v Consolidated Products Co (1942) 232 5 NW (2d) 646 (1942); R v Tonkin [1975] Qd R 1: Grey v Australian Motorists and General Insurance Co Pty Ltd [1976] 1 NSWLR 669, 675-6; R v Palmer [1981] 1 NSWLR 209; JH Buzzard, R May & MN Howard, Phipson on Evidence, 12th edn. London, Sweet & Maxwell, 1976, para 1210: GJ Samuels, ‘Problems Relating to the Expert Witness in Personal Injury Cases’ in HH Glass (ed) Seminars on Evidence Law Book Co. Sydney, 1970, 139, 153-4.
[43] Law Reform Commission of Ontario, Report on the Law of Evidence, Ontario 1976, 151: Wigmore on Evidence, para 1920; Law Reform Commission of Canada, cl 69; Canadian Uniform Evidence Bill s 40; Scottish Law Commission, Memorandum No 46, para 8.01ff; Scottish Law Commission. Research Paper on the Law of Evidence in Scotland 149; Scottish Law Commission, Memorandum No 8, Draft Evidence Code, Edinburgh, 1968. Article 2.3; United States Federal Rules of Evidence, Rule 704; Law Reform Committee of Great Britain, para 4 and para 63.
[44] For example, limitations on cross-examination of welfare officers; when cross-examined a conflict can arise between the counselling duties and the obligation to give evidence.
[45] The legislation generally uses the term ‘relevant’ in preference to ‘admissible’. This. in itself causes confusion: see Appendix C, para 110.
[46] Evidence Ordinance s 45: see Appendix C, para 110.
[47] See Appendix C. para 107.
[48] See, however, R v Haidley and Alford [1984] VicRp 18; [1984] VR 229. 234, 250-1.
[49] See R v MacKenny (1981) 72 Cr App R 78.
[50] See below, para 643, 4.
[51] See Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141, 161.
[52] Wilband v R (1967) 2 CCC 6, 11 (Fauteax J).
[53] See VD Plueckhahn, ‘Legal Dilemmas in the Use of Expert Medical Evidence’, Discussion Paper, presented to Supreme Court Judges Conference, Sydney. 1982.
364. Introduction. Mention has been made of some uncertainties which exist in the law—for example, the definition of admissions. In this chapter reference is made to criticisms that may be made of particular features of the rules relating to admissions.
365. Statement in Representative Capacity. The requirement that in order to be offered against a party in his representative capacity a statement must have been made in his representative capacity is inappropriate: ‘if the rationale of the exception is that the declarant is available at the trial to deny or explain his statement, it should make no difference in what capacity he originally made it’.[1]
366. Vicarious Admissions. The requirements are too strict. For example, it should not matter whether a statement by an agent is made to some third party or to the principal/party.[2] In addition a requirement that an agent’s statement should not be admissible against a party unless it was made with ‘speaking authority’ would often exclude highly probative evidence since few principals employ agents for the purpose of making damaging statements.[3] On the other hand, to admit evidence of a statement by a person on the grounds of the ‘privity’ between that person and a party is objectionable, since ‘there is no magic in privily’.[4]
367. The ‘Consciousness of Guilt’. There are many circumstances where, even now, a record of interview disclosing ‘no comment’ answers to police questions can get before the jury at the trial of the accused. The distinction is between answers which, in the circumstances, because of the way in which refusals are made, go somehow to show a consciousness of guilt, and those in which the accused flatly states, after warning, that he will answer no (or no more) questions. The location of this dividing line is extremely unclear. It appears that most such records are, in fact, admitted into evidence without difficulty. Thus the law does indirectly that which could not be done directly and the practical significance of the present theoretical position is significantly reduced. In addition, the trial judge is forced to direct the jury in terms which draw such extremely fine distinctions. As a corollary of this point, the caution given by the police is therefore defective. It does not state that the accused’s silence, though not direct evidence of guilt, may strengthen the inferences to be drawn from the prosecution case.
368. Drawing any inference of a ‘consciousness of guilt’ from partial silence or conduct is particularly dangerous in this context, since some people are simply intimidated by police officers and may act oddly for that reason alone. Some react stubbornly to authority. Others, even though innocent of any offence, will be very careful about what they say, and what questions they choose to answer. Even more significant are communication factors. People accused of crime tend to be ignorant, inarticulate, suspicious, frightened and suggestible, arguably not able to face up to and deal with police questioning even if that questioning is scrupulously fair. They may misunderstand the true significance of questions. People are commonly unable to sort out and state the factual aspects of their problems clearly, even after time for studied reflection and discussions with friendly legal advisers. These dangers are exacerbated where the only question was the state of mind of the accused person when he or she committed a particular act.[5]
369. Non-Police Questioning. If inferences may be drawn under the present law from the failure of a person to answer questions by a person like a shop detective, this is unsatisfactory. It is a situation where pressure to speak should be even less than under police questioning, since at least the latter are subject to a degree of public control and accountability.
370. The Right to Silence. The critical policy issue in this area is whether the ‘right to silence’ which supports the existing law should be retained and, if so, in what form. This policy issue is discussed in the commentary on the proposals relating to admissions.
371. The Meaning of Voluntariness. Voluntariness has been authoritatively defined to mean ‘made in the exercise of a free choice to speak or be silent’. Voluntariness doctrine thus seems to be based on an assumption of free will, but even a deterministic approach may not preclude consideration of impairment of the decision making capacity. However, while a real reason for excluding an admission is the belief that it may be unreliable if the individual making it did not have the mental freedom to choose whether or not to confess, existing law has had great difficulty in defining the applicable standard.[6]
372. It is clear that ‘free choice’ does not mean the mere exercise of a choice. A confession will not be ‘voluntary’ simply because the person who made it chose to make it. A man or woman being beaten with a rubber hose does not make a voluntary confession when he or she chooses to confess to a crime rather than prolong the pain. But, equally, a confession will not be ‘involuntary’ simply because some factor external to the person confessing influenced his ‘choice to speak or be silent’. ‘Voluntary’ does not mean ‘volunteered’. It seems clear that a suspect, who confesses after a brief period of mild police questioning in the course of which he is confronted with substantial evidence of guilt, makes a ‘free choice to speak’ and thus makes a voluntary confession. The line between voluntariness and involuntariness is to be found, therefore, somewhere between the two extremes. Freedom of choice means freedom from a certain degree of impairment of the ability to choose. Stated differently, a confession is not made in the exercise of a free choice to speak or be silent if more than a certain degree of pressure is imposed on the person making it. Unfortunately, it is impossible to determine that degree precisely. Some will find a significant impairment of the capacity to choose from even the most subtle interrogation pressures; others with a tougher perception will require a great deal more before concluding that an accused’s capacity for choice was substantially impaired. For such disagreement there can be no ‘correct’ answer, any more than there can be a ‘correct’ answer as to how much pressure an individual should be expected to endure before the duress defence will be recognised. Even if reasonable people could agree on the relevant factors to consider, they inevitably would disagree on how the relevant factors should be weighted. Even if agreement were possible on that, we lack the tools to ascertain the extent to which any particular individual’s capacity for choice has been impaired. Finally, even if all these difficulties were resolved, adoption of a test taking into account all the accused’s weaknesses and infirmities would make it difficult to procure admissible confessions because the permissible level of police pressure would decrease in direct proportion to the weakness of the suspect.
373. Similarly, causal language[7] does not accurately explain the concept of voluntariness: a confession is not ‘voluntary’ simply because police conduct is not a ‘sufficient cause’ (the accused’s own choice to confess will always be a ‘necessary cause’ except in the rare case where something like a drug negates the accused’s consciousness) nor is a confession ‘involuntary’ simply because police conduct is a ‘necessary cause’ (such conduct will usually be a necessary cause since few people come to the police in order to confess). When a court identifies the cause of a confession, therefore, it is singling out one causal factor from a set of factors that are sufficient only in combination. In such a selection process, the factors selected will depend on the purpose in asking the causal question. If the purpose in asking the causal question is to decide whether or not to exclude the confessional evidence, the outcome depends on the questioner’s normative inclinations. To the extent that confessions are desired, the impetus is to select the accused’s choice as the most significant factor; to the extent that respect for the accused’s initial decision not to confess is valued, and the view adopted that some limit must exist on the methods used to obtain a confession, the impetus is to select the police conduct as the causal factor most significant in changing the accused’s mind.
374. The conclusion, then, is that neither the language of overborne wills nor causation can provide a workable test for resolving individual cases. The rule, as a result, fails to give the interrogating officer any clear guidelines. The distinctions between what he may say or do and what he may not would appear impossibly fine to him. Of course, he may understand that he should not offer ‘deals’ or physical violence or threats of physical violence, but he has little guidance defining the limits of subtler and less concrete forms of intimidation. A test that is, for example, developed and administered on a case-by-case basis is unlikely to provide much guidance.
375. Legal and Psychological Voluntariness do not Match. Psychological studies seem to suggest that the legal concept of ‘voluntariness’ is a wholly inappropriate concept to apply to answers or statements provided by an accused person in custody. Some argue that ‘the legal test for voluntariness is unreal and artificial and that it is often unfair to regard an admission made by a suspect under police questioning as truly voluntary merely because there was not present any factor to render it involuntary in law’.[8] Factors suggested by psychological studies but largely ignored by the law are:
• Social Approval and Disapproval. Research has indicated that people’s behaviour can be changed, and their beliefs and attitudes altered by the carefully patterned application of social approval and disapproval. In this area, the work of Asch[9] (1956) is pre-eminent. Asch discovered that he could use the approval and disapproval of a small group to obtain a change in his subject’s estimation of the relative length of two lines. In effect he showed that social pressure can result in people distorting the evidence of their senses even when the pressure exerted is no more than neutral statements of disagreement.[10] Bern (1966) demonstrated that subjects’ reports on the truth or falsity of a statement could be changed by simple social manipulations.[11] The effectiveness of manoeuvres—such as overtly showing approval or disapproval or by drawing attention to the approval or disapproval that would be expressed by significant others—in changing human behaviour stems from the way in which all people are raised in society.[12] Individuals learn quickly to anticipate negative social consequences from a variety of cues, such as the posture, gesture, expression and verbal statements of others.[13] In many respects, becoming an adult member of society consists in learning to adapt effectively to the social pressures producing group conformity. So powerful are these effects that a psychological fear response is registered by an individual when social disapproval of him is expressed, and this response disappears when he suitably modifies his actions and thereby eliminates the expression of disapproval.[14] From the large literature on the techniques of persuasion a number of consistent themes can be identified.[15] They have been summarised as follows:[16]
(a) The effectiveness of a persuader in exerting social pressure on another is enhanced when there is an obvious difference between the status of the persuader and his subject; the greater the relative status of the persuader the more likely he is to be effective.
(b) The effective persuader must be credible, that is his own authority must be seen as high and the credibility of his statements must be obvious.
(c) The impact of persuasion is enhanced by requiring active participation from a subject.
(d) If a persuader is trying to manage a gross manipulation of his subjects’ behaviour his probability of success will be enhanced if he puts statements to his subject with which the subject is known to agree.
(e) Pressures to conform extended by a dominant persuader are more likely to be effective if the subject is isolated from his peers.
(f) The effectiveness of social pressures to conform is enhanced by mild stress states, including mild fear, uncertainty caused by lack of information, informational overload, or conflict.
(g) Social pressures tend to have an immediate impact on behaviour which weakens rapidly over time. Social approval and disapproval can be signalled effectively without the knowledge of the person giving the signals. The entire process of manipulation and persuasion can be unconscious.
A study of leading police manuals reveals that many of these theoretical factors are taken into account in the advice given concerning the conduct of police interviews.[17] Manoeuvres are aimed specifically at helping the suspect reformulate his natural assessment of the negative social consequences of confessing.
• Self-Esteem. An individual will also consider the consequences of a decision as they affect his view of himself.[18] The decision to admit to a crime, for example, will depend not only on the expected punishment and the social effect of conviction and imprisonment for self or family, but also on whether the individual can accept the view of himself as a convicted criminal and prisoner. The need to maintain one’s self-esteem can have important behavioural and physiological consequences. Where a person’s idea of himself is idealised compared with his actual performance or behaviour, and this discrepancy is apparent to him, he will respond physiologically with a wide range of depressive reactions,[19] which can be cured by reducing this discrepancy. Bandura and Perloff (1967) argue that, contrary to popular belief, self-esteem consequences are more important than either utilitarian or social consequences in the motivation of behaviour.[20] The use of these findings in the practice of clinical psychology is widespread, and the effectiveness of such treatments in that context has implications for the understanding of interrogation techniques.[21] Inbau and Reid’s manual, for example, emphasises in a number of places the need to avoid confronting the suspect with his shortcomings, or allowing him to see confession as negatively affecting his self image.[22] In this context, the efficacy of sympathy and understanding is repeatedly mentioned. These tactics have been said to derive from reversing the behaviour that the suspect might well expect from the interrogator.[23] An integral aspect of this strategy is the utilisation and intensification of stress, but at the same time the optimum effectiveness of this approach is dependent in most cases upon inducing a belief that the interrogator is a source of stress relief and sympathy rather than a source of anxiety. Rather than anger, aggression or blame, the suspect is confronted with a view of the self-confessed criminal which is made to look attractive particularly in comparison with the role of suspect. The aim of these manipulations is to persuade the suspect that the role of self-confessed criminal is of greater social value than the role of suspect. The suspect may then, on the basis of the self-esteem consequences of the choice, opt to take up the more attractive role. It should be noted that whereas social consequences are manipulated directly by spelling them out to the suspect, in this case the interrogator merely provides specially shaped information and the suspect himself does the rest.
• Stress. The effectiveness of these pressures is enhanced by the presence of stress. Irrespective of guilt or innocence, police interrogation is an inherently stressful experience. Questioning and related procedures such as arrest and custody may cause effects commonly regarded as attributable only to physical coercion or explicit threats, especially when experienced for the first time. The mere fact of accusation may constrict psychological freedom and the perceived power differential between police and suspect may introduce implicit elements of threat, bargaining and coercion into the encounter.[24] Under appropriate conditions of stress, anxiety or psychological manipulation most persons will confess to crimes of which they are innocent. In some cases arrest, custody or interrogation may precipitate states of temporary abnormality, such as hysteria in otherwise normal persons, or may induce a state of heightened suggestibility. These states may have psychological or physiological causes.[25] Mere uncertainty or vague threats may create a much greater degree of fear and psychological discomfort than explicit threats, whilst isolation per se is capable of producing physiological effects similar to those occurring when a person is beaten or starved.
• Information Provided. In making a decision an individual will make a ‘choice’ between alternative courses of action in the light of the consequences which he thinks will follow from each course of action and the positive or negative value he places on those consequences. For this he needs information. Thus decision making needs to be seen both as a choice process and as a process of searching for information.[26] When a suspect is being interrogated, he must make numerous decisions. He must decide whether to speak or be silent, whether to answer questions truthfully or evasively, or by lying. Apart from this strategic decision, each question raises the problem of making a decision of its own and this continuous counterpoint between minor decisions and the overriding strategic decision creates its own particular problems for the decision maker in terms of his capacity to process information.[27] Many suspects, however, will be unaware of, or inaccurately informed about, the possible consequences of their response to interrogation, unaware of the evidence already existing and inexperienced in dealing with the situation. Where the suspect lacks information about the probabilities attaching to outcomes, or about the full range of possible outcomes, his decision making will obviously be impaired: he cannot reach a rational decision without a minimum of information. In these circumstances he is very dependent on his interrogation as the only source of information available to him. The analysis of the Royal Commission on Criminal Procedure suggests three types of information which constitute significant external interference with suspect’s decision making:
(a) Because the police have the power to determine to a considerable extent what will happen to the suspect (how he will be treated, how long detained, the nature of the charge, bail recommendations), they are in a position to bring about or affect the likelihood of certain consequences of the suspect’s ultimate decision. If the suspect is given, intentionally or unintentionally, information which is immediately relevant to his evaluation of the options open to him, then his decision making is potentially affected.
(b) The interrogator is not only a policeman but also a member of society, perhaps a co-member with the suspect of defined groups (church, town, football club, social club, war veteran etc). In the course of an interrogation, the interrogator is bound to offer the suspect the chance to win or lose social approval or self-esteem. This can be done directly by the interrogator referring to himself (I think you ought ... people like you and I should ...). These manoeuvres are present to some extent in all social interactions and it would be futile to argue that they can be especially eradicated in interrogation. However, there clearly comes a point when manipulations of this type can so distort the suspect’s view of the options open to him that any subsequent decision cannot reasonably be seen as voluntary ...
(c) The interrogator can provide or withhold information about which the suspect is likely to be ignorant but on which the interrogator will be seen as an ‘expert’. (For example, the likelihood of a reduced sentence for pleading guilty; the likelihood of conviction; the probable length of sentence for the charge.) If the suspect is detained without access to other sources of information, he has no means of checking what he is told.[28]
Effective manipulations of the interviewee can occur without any conscious intention on the part of the interrogator. The Royal Commission concluded that these manipulations can be detected by a trained observer but only when working with a complete visual and sound record (or actual observation) of the interrogation.[29]
376. Causal Basis Criticised. To the extent that the rule takes into account the peculiar characteristics and susceptibilities of the individual suspect, the police criticise it because of the failure to provide clear guidelines. To the extent that the rule emphasises the acceptability or non-acceptability of particular methods of interrogation, in isolation from the particular case, the rule is criticised by those who argue that the reliability of confessions will vary enormously depending on the characteristics of the suspect involved. They argue that a substantial degree of flexibility is essential, because there can only be one set of rules to cover a great variety of situations. It is not feasible to apply one set of rules to a suspect with no prior convictions and a different set to a clever hardened criminal suspect with a long record. Yet the two situations are quite different, whether in the atmosphere of the interrogation or in the respective attitudes of suspect and investigating officer. It is argued that the limits of tolerable pressure upon a suspect by questioning should depend substantially upon the power of resistance of the person concerned. That which is harassment to a weak minded individual would be mere unpleasantness, easily resistable if he wanted to resist, to an aware person of strong personality or previous experience.[30] One of the objections to the application of the exclusionary rule in the United States is that it can and does lead to the patently guilty going free because of some minor procedural technicality: ‘the criminal is to go free because the constable has. blundered’.[31] This in turn leads to loss of public confidence in the administration of justice.
377. Inducements Category Unsatisfactory. This rule may be seen as the product of very different social and legal conditions. It is too strict, so that quite innocuous, or even laudable, police behaviour results in exclusion. The rule causes a tendency to ignore less obvious but often more significant pressures on a person being questioned. Limitation of the category to inducements by a ‘person in authority’ is unrealistic and artificial. No clear definition of ‘person in authority’ is available.
378. Tendency to Admit. One consequence of the points noted above may be that trial judges are faced with an almost impossible task which they tend to resolve in favour of admission. Voluntariness has thus been interpreted in ways which stretch its meaning to virtual breaking point. In a New South Wales decision, the trial judge was satisfied beyond reasonable doubt that a confession was voluntary despite the fact that the accused had been questioned for seventeen and one half hours in a period of twenty three and three quarter hours, which included a period of almost continuous interrogation from 7.30 pm to 9.30 am the next day.[32] This decision was reached even though ‘when the interrogation finished, ironically enough [the police interrogator] collapsed with mental and physical exhaustion and was disoriented’. Trial courts tend to resolve the almost inevitable testimonial contest over what happened behind the closed doors of the interrogation room in favour of the police.
379. Insufficient Control over Pre-Arrest Interrogation Period. Voluntariness is frequently considered within the narrow confines of what happened at the time and place of interrogation. It is argued that it is no less important to look at the circumstances which brought the suspect into the interrogation situation. In the case of a person not yet under arrest, voluntariness in accompanying the police to the station, and in remaining there, can be as critical to the voluntariness of any confession then obtained as the voluntariness of any conduct by the suspect whilst he is there.[33]
380. The Law. Under present law, the question of whether evidence of an accused person’s alleged admission is reliable is one for the tribunal of fact. It is a question of fact and all the judge must decide in a jury trial is whether a jury could reasonably find that the admission had been made.[34] No requirements are imposed on the admissibility of the evidence in this regard—it is simply left for the consideration of the fact finder. Similarly the present law does nothing to ensure that the evidence of the circumstances in which it was made is reliable.
381. Deficiencies. But, in the context of admissions in criminal cases, there are serious problems with this approach to an issue that is often the critical issue in a trial:
• Assessment Difficulties. An accused person at trial, confronted with a confession allegedly made by him during police interrogation, will often contend that he did not in fact make the alleged admissions, and that even if he did, the police acted improperly in obtaining them. The police will assert that he did make the confession, and that no impropriety took place. The court is required to resolve this contest. The police and the accused each rely upon their oral evidence, and there is usually no independent touchstone by which the court can determine where the truth is to be found. The accused is at a disadvantage. The police possess a number of ‘credibility’ advantages over the accused in the swearing contest. They are usually experienced court witnesses, experienced both in giving their evidence and answering questions under cross examination in a detached manner. Whilst judges are generally also experienced in evaluating the credibility of witnesses, judges themselves have on occasions conceded that their task is frequently a difficult one when police officers are witnesses.[35] The presentation of police evidence is to be contrasted with the possible impression given by an accused who elects to give evidence on the voir dire or before the jury. His evidence may appear unconvincing, notwithstanding the fact that he is telling the truth. The accused has much more ‘at stake’ than the police and will generally be frightened, or at least nervous, at the prospect of giving evidence. The accused is likely to have received poor or little education. These factors, coupled with the fact that he or she will be less familiar with court procedures, may cause an accused to fail to do justice to his or her version of the facts.
• Abuses. The importance of the evidence provides powerful incentives for perjury, many of the assertions by the accused may be false, last attempts to avoid conviction. But there is no doubt that abuses do occasionally occur during police interrogation.[36] Sociologists who have observed police behaviour over a period of time have concluded that the police see themselves as ‘criminal catchers’, who believe that abstract principles of legality and criminal justice may have to be sacrificed in the real world.[37] When a police officer arrests a man he does so because he believes he is guilty. He seeks to have him convicted. Not only may he feel justified in acting ‘improperly’ with a suspect, he may well have what he regards as compelling justification for the falsification of evidence against him. As the Lucas Committee noted, given factors like isolation, public indifference, resentment against lawyers, frustration with the law, pressures to obtain convictions, ‘it is perhaps little to be wondered at that many police officers have crossed the bounds and fabricated evidence against persons whom they believe to be guilty’.[38] The Australian Law Reform Commission in its Interim Report on Criminal) Investigation, referred:
to the complaints that are widely made (much more widely, it must be said, in some jurisdictions than others) of police misconduct in securing admissions from suspects. Techniques complained of include on the one hand the extraction of confessions by violence or the threat thereof, and on the other hand the practice of ‘verballing’, ie the alleged fabrication of confessions, which are presented and explained to the court as oral admissions which the accused would not later acknowledge in writing.[39]
Security should be provided against abuse of this kind. Indeed there is a public interest in this respect apart from an evidential one: there is no doubt that repeated allegations of distortion and misconduct are extremely damaging to the good name of the police and the administration of criminal justice. Whatever the actual frequency of police impropriety or ‘verballing’, the secrecy of police interrogation permits the allegation of their occurrence to an extent that public respect for the police is lessened, the morale of the honest policeman is lowered, and the ‘us versus them’ philosophy is enhanced. The Commission, without assessing the validity of the complaints, concluded that
legislation is required not only in the interests of accused persons, but also to preserve the reputations of the police themselves and to decrease the incidence of such conduct, or allegations of’ such conduct ... A large proportion of the time of the criminal courts, time which is enormously expensive to the public purse, as well as to the pocket of the accused, is spent in resolving these disputed factual issues ... The court sometimes suspects that the real process of’ determining guilt occurs in the police station.[40]
• Time and Cost. Determining the admissibility of pre-trial statements in each individual case is extremely time consuming, both at trial and on appeals. Indeed, on occasion more time is spent determining the issue of voluntariness than is spent determining guilt or innocence. Both the Beach and Lucas Reports have concluded that a very large percentage of court time is spent in testing the admissibility of confessional material.[41] A recent NSW study found that, in the study cases, nearly 50% of the trial time in which witnesses were giving evidence was spent determining the admissibility or veracity of confessional evidence.[42]
382. Relevant Policy Concerns not Clearly Articulated. Significantly greater uncertainty is generated by this discretion than by the discretion covering illegally obtained evidence. Fairness is a very vague concept and the courts have failed to define precisely the principles behind it. It is unclear to what extent the concern is for reliability, protecting the suspect’s rights (including the right to silence), deterring police misconduct, or maintaining the legitimacy of the judicial system.[44] The result is extreme uncertainty and unpredictability. As Lord Diplock said in Sang’s case, ‘what is unfair, what is trickery in the context of detection and prevention of crime are questions which are liable to attract highly subjective answers’.[45]
383. Lack of Clarity of Judgement. A judge’s decision on how to exercise this discretion would tend to lack the precision of the discretion to exclude illegally obtained evidence. Under that discretion, the judge would be able to pronounce upon the factors which he regards as relevant to the case at hand. Such reasoned judgements would enable appellate courts to trace any omission or defect in his exercise of the exclusionary discretion. This would be much more difficult where the fairness discretion was involved, even when the case involved a breach of the Judges’ Rules. The judge is more or less left to his own devices in interpreting the notion of fairness. The result is that such rulings are often unreasoned and, therefore, incapable of satisfactory appellate review.
384. Tendency Not to Exclude. Despite the numerous judicial statements about ‘fairness’ it is quite clear that a predominant number of judges tend to pay the concept only lip service. A similar point could be made with respect to the Judge’s Rules. Breach of them opens up only the possibility of sanctioning by exclusion and the courts have not chosen to exercise the sanction with any stringency. Often the rules are not so much applied to exclude evidence as stretched to let the evidence stand. The rule is redefined rather than enforced. In R v Banner[46] the Victorian Full Court upheld a trial judge’s ruling that the accused, having been kept in a small room at a police station throughout the night, and having been questioned seven times in the course of the night, spoke with ‘the voice of conscience’ when he made a confession at 8 am the next day. The psychological comfort which is induced by a discretion based on fairness may well be illusory and may be veiling a position which is causing injustice.
[1] JB Weinstein & MA Berger, Weinstein’s Evidence, Matthew Bender, New York, 1979, vol 4, 801-41.
[2] Federal/Provincial Task Force of Canada, Report on the Uniform Rules of Evidence, Carswell Co Ltd, Toronto 1992, para 12.3.
[3] Weinstein’s Evidence, 801-163.
[4] Weinstein’s Evidence, 801-165; Task Force of Canada, para 12.3.
[5] See the criticisms in R v Chandler [1976] 1 WLR 585, 590-1.
[6] See JD Grano, ‘Voluntariness, Free Will and the Law of Confessions’ (1979) 65 Virg L Rev 859.
[7] eg an object hitting another may be said to be both a ‘necessary’ and ‘sufficient’ cause of the latter’s motion.
[8] W Bacon & R Lansdowne, ‘Women Homicide Offenders and Police Interrogation’ in J Basten, M Richardson, C Ronalds & G Zdenkowski ‘The Criminal Injustice System’, Australian Legal Workers Group (NSW); Legal Service Bulletin, 1982, Sydney, 4, 12.
[9] S Asch, ‘Effects of Group Pressure Upon the Modification and Distortion of Judgments’ in GE Swanson, TM Newcomb & EL Hartley (ed) Readings in Social Psychology Holt Reinhart & Winston, New York, 1952.
[10] See also W Watts & W McGuire. ‘Persistence of Induced Opinion Change and Retention of the Inducing Message Contexts’ (1964) 68 J Abnormal and Soc Psychology 233-41 who showed how the attitudes and belief of their subjects could be reliably changed by propaganda which played on the audience’s perceptions of the social consequences of their attitudes.
[11] D Bem, ‘Inducing Belief in False Confessions’ (1966) 3 J Pers and Soc Psychol 707; Royal Commission on Criminal Procedure, England. Research Studies No 1 and 2, London. 1980, 15-6.
[12] R Hinde, Biological Basis of Hunan Social Behaviour, McGraw Hill, New York, 1974.
[13] A Bandura, Social Learning Theory and Practice Hale, Englewood, Cliffs, NJ 1977; M Argyle, ‘Non Verbal Communication in Human Social Interaction’ in Hinde RA (ed) Non Verbal Communication, Cambridge University Press, Cambridge, 1972.
[14] J Gray, The Psychology of Fear and Stress, Weidenfeld and Nicholson, London, 1971.
[15] JAC Brown, Techniques of Persuasion, Penguin, Baltimore, 1963; R Rosnow & E Robinson, (ed) Experiments in Persuasion, Academic Press, New York, 1967; P Zimbardo & E Ebbesen, Influencing Attitudes and Changing Behaviour, Adison Wesley, Boston, 1969; M Karlins & H Abelson, How Opinions and Attitudes are Changed, Springer Publishing Co. New York, 1970; AH Eagly & S Himmelfarb, ‘Attitudes and Opinion’ (1978) 29 Ann Rev Psychol 517.
[16] Royal Commission on Criminal Procedure, Research Studies No 1 and 2, 16.
[17] See FE Inbau & J Reid, Criminal Interrogations and Confessions, 2nd edn, Williams & Wilkins, Baltimore. 1967.
[18] JL Janis, ‘Decisional Conflicts: A Theoretical Analysis’ [1959] J of Conflict Resolutions 6-27.
[19] C Fuchs & LP Rehm, The Treatment of Depression Through the Modification of Self-Control Behaviour, Univ of Pittsburgh, 1975: B Jackson. ‘Treatment of Depression by Self Reinforcement’ (1972) 3 Behav Therapy 298-307.
[20] A Bandura & B Perloff, ‘Relative Efficacy of Self-Monitored and Externally Imposed Reinforcement Systems’ (1967) J Pens and Soc Psychol 7, 111-6. See also H Weiner, ‘Real and Imagined Cost Effects upon Human Fixed Interval Responding’ (1964) Psychol Rep 17, 659-62 who showed that having a social group line an adult for unacceptable behaviour was neither more nor less effective than asking the subjects to imagine that they were fining themselves.
[21] MR Goldfried & M Merbaum (ed), Behaviour Change through Self Control, Holt, Rinehart and Winston, New York, 1973: MJ Mahoney & CE Thoresen, Self Control: Power to the Person. Brooks/Coke, Monterey, Calif, 1974.
[22] Royal Commission on Criminal Procedure, No 1 and 2, 21.
[23] Royal Commission on Criminal Procedure, No 1 and 2, 21.
[24] Royal Commission on Criminal Procedure, Research Studies No 3 and No 4, London, 1980. 25.
[25] L Hinkle, ‘The Physiological State of the Interrogation Subject as it Affects Brain Function’ in A Biddennan & H Zimmer (ed) The Manipulation of Human Behaviour, John Wiley & Sons, New York, 1961, 1. For example, sleep deprivation or hunger may cause brain syndromes resulting in impaired judgment and increased suggestibility.
[26] M Sime & M White, ‘Decision Making Since the Computer’ in PB Warr (ed) Psychology at Work, Penguin, London, 1971.
[27] PM Fitts & MI Posner, Human Performance Prentice Hall, London, 1973: EC Poulton, Environment and Human Efficiency, Charles C Thomas, Springfield, 111, 1970.
[28] Royal Commission on Criminal Procedure, Research Studies No 1 and 2, 23-4.
[29] id, 24-5.
[30] FM Neasey, ‘The Right to Remain Silent’ (1977) 51 ALR 360, 365.
[31] Chief Justice Cardoco of the New York Court of Appeals in People v Defore (1926) 242 NY 13.
[32] R v Junes [1970] 1 NSWLR 190.
[33] Royal Commission on Criminal Procedure, Research Studies No 1 and No 2, 27.
[34] Another example of conditional relevance—see below, para 646.
[35] R v Hinton (1978) 4 PS Rev 1724, 1726 (NSW District Ct).
[36] Studies carried out for the English Royal Commission on Criminal Procedure showed routine breaches of existing rule in non-serious cases, in respect of which interrogation was not crucially important, and all in the presence of Home Office observers: M McConville & J Baldwin, ‘The Role of Interrogation in Crime Discovery and Conviction’ (1982) 22 Brit. J of Criminology 165.
[37] J Skolnick, Justice Without Trial: Law Enforcement in Democratic Society, John Wiley & Sons, New York, 1960, 19.
[38] The Lucas Committee was ‘satisfied the practice [of ‘verballing’] is by no means peculiar to the State of Queensland’; Committee of Inquiry into the Enforcement of Criminal Law in Queensland, Report (Brisbane, 1977) (Lucas Committee) para 26. The Beach Inquiry in Victoria in 1971, documented and described a similar trend: Report of the Board of Inquiry into Allegations Against Members of the Victorian Police Force, Melbourne, 1978, 78.
[39] Australian Law Reform Commission Interim Report No 2, Criminal Investigation, Canberra, 1975, para 141.
[40] Australian Law Reform Commission, para 141, 151.
[41] Lucas Report IV: Beach Report 78.
[42] N Stevenson. ‘Criminal Cases in the NSW District Court: a Pilot Study’ in Basten et al, The Criminal Injustice System 106, 107. Voir dire hearings in relation to the admissibility of such evidence took up approximately 19% of trial time; and the cross examination in front of the jury of police witnesses regarding the alleged confessional material and/or their conduct during the interrogation of the accused at the police station or elsewhere, accounted for a further 29% of trial time.
[43] For discussion regarding another relevant discretion—the discretion to exclude evidence obtained illegally or improperly—see below, para 468-71, 958—66. Appendix C, 260.
[44] Nevertheless, some judges argue that such an all encompassing concept as ‘fairness’ avoids technicalities and is vague enough to cater for the unforseen case: Selvey v DPP [1968] 2 WLR 1494, 1517 (Lord Hodson).
[45] [1979] UKHL 3; [1979] 2 All ER 1222, 1226.
[46] [1970] VicRp 31; [1970] VR 240.
385. The Rule. At common law, a conviction is not admissible in other proceedings to prove the facts on which it is founded ie guilt of the offence charged. The common law rule applies in New South Wales, Victoria, Western Australia and Tasmania. It is open to a number of criticisms.
• Excluding Probative Evidence. The rule is unsatisfactory because fundamentally a conviction deserves recognition as evidence that was more likely to be right than wrong that the person was guilty. A conviction is the result of the judicial procedure, designed over centuries to put the material needed to make a correct decision before the court which has a legal duty to form an accurate opinion on the question at hand.[1] To admit this evidence would not conclude the issue but would make available evidence of high probative value. The probative value of a conviction lies in the high standard of proof that must be satisfied before a finding of guilt can be made. In Hollington v Hewthorn itself, a higher degree of carelessness was required to support a finding of criminal negligence than was required in the civil action in negligence. To exclude evidence of convictions is illogical and ‘scarcely comprehensible to the ordinary intelligent layman’.[2] The common law rule can also lead to injustice where, as in Hollington v Hewthorn itself, a key witness dies after having given the relevant evidence in an earlier proceeding. If evidence of the conviction is not admitted, the plaintiff is forced to abandon his action, which is hardly a just or sensible result.
• Cost and Waste of Time. The common law rule can also lead to a waste of time and expense in duplicating proceedings, because it may lead to an issue being twice fully litigated; eg, in defamation proceedings, where the statement complained of is that the plaintiff is guilty of an offence for which he has been convicted.[3] The defendant in setting up a defence of truth, is forced to reprove de novo the guilt of the plaintiff, because the plaintiff’s conviction is inadmissible to prove his guilt.[4]
This problem does not arise only in defamation proceedings. In Barclays Bank v Cole[5] the bank sued to recover an amount stolen from one of their branches by a man convicted of that robbery. The defendant denied his guilt and so forced the plaintiff to proof. Lord Denning said of the rule in Hollington v Hewthorn:
I hope it will soon be altered. See what it means here. In order to be able to bring this civil action Barclays Bank had first to make sure that Cole was prosecuted in the criminal court.[6] Now after seeing him duly prosecuted and convicted, they are asked to prove his guilt all over again.
• The Reasoning in Hollington v Hewthorn. The reasoning adopted by the Court of Appeal in Hollington v Hewthorn is also open to criticism.[7]
(a) The maxim res inter alias acta is not a fundamental rule of evidence[8] and in any event is of little significance where a conviction is tendered against the party convicted. That party has already had full opportunity to lead evidence, cross-examine witnesses, make submissions and to appeal if dissatisfied.
(b) It is also absurd to equate a conviction with the opinion of a bystander. The conviction is the result of a complex and expensive judicial procedure and upon it the State imposes penal consequences upon the person convicted.
(c) Lord Justice Goddard also drew an analogy with the issue of the admissibility of an acquittal, to prove innocence. and concluded that neither convictions nor acquittals should be admissible. But as Justice North, President of the Court of Appeal, stated in Jorgensen’s case:[9]
I can see no parallel between a conviction and an acquittal for acquittal on a criminal charge establishes no more than that the Crown failed to prove the accused’s guilt beyond reasonable doubt whereas a conviction must be interpreted to mean that the charge was established beyond reasonable doubt.
(d) Lord Justice Goddard’s analysis of the authorities is also not convincing. He failed to consider the conflicting decision of Hill v Clifford,[10] and Harvey v R.[11] In Harvey’s case an order of a master in Lunacy was held by the Judicial Committee of Privy Council (on appeal from Ceylon) to be admissible as to the truth of the facts recited in the order. In excluding the conviction Lord Justice Goddard was forced to overrule In Re Crippen;[12] Partington v Partington[13] and O’Toole v O’Toole.[14] Prior to his decision in Hollington, Lord Justice Goddard held that a finding of adultery in a divorce suit was prima facie evidence of adultery in proceedings before the General Medical Council.[15]
(e) Lord Justice Goddard also rejected the certificate of conviction because of the hearsay rule and the best evidence rule. In Jorgensen v News Media, Justice North rejected the best evidence rule as irrelevant.[16] The best evidence rule is no longer seen as a rule of general significance.[17] As to the hearsay rule, Justice Turner in Jorgensen, accepted that a certificate of conviction is hearsay, but pointed out that the objection fundamentally meant no more than that the evidence of the criminal proceedings may be inaccurate or unsatisfactory because it is false, unreliable, biased, or prejudiced, and that there is no opportunity to cross-examine.[18] Justice Turner rejects these objections as worthless. In his Honour’s opinion a certificate of conviction is reliable and accurate evidence that the Court considered the person guilty. The requirement that an accused be convicted beyond a reasonable doubt effectively answered a lack of cross-examination.
386. Introduction. The common law rule has been abrogated in several jurisdictions. Two approaches have been taken. Each is open to criticism.
387. Legislation in South Australia and the Northern Territory. A criticism of these provisions[19] is that the reform does not go far enough; only convictions in the Supreme Court are admissible as of right. Other (summary) convictions are admissible only where it appears to the court that the admission is in the interest of justice. The distinction has been criticised as a confusion of weight with admissibility. Generally summary convictions before stipendiary magistrates can be said to have probative value. Such convictions are by far the largest proportion of convictions entered in our courts. Matters affecting summary proceedings, such as a failure to properly contest the charge, a lack of preparation or of legal representation, are relevant to the weight of the conviction and its probative force. It is better to leave consideration of these factors and others (such as identity of the issues between the two proceedings) to the civil court in each case. How the discretion in the SA legislation would operate is uncertain because no reported case has been found in which it has been exercised. In the interest of certainty in preparing for trials, it may be more important to have a fixed rule of admissibility than the uncertainty of a vague discretion.
388. Legislation in Queensland and the Australian Capital Territory. The main criticism of these provisions is found in criticism of the comparable English legislation—Civil Evidence Act 1968 s 11.
• Excessive Weight Given to Presumption. The English legislation has been criticised because it gives too much weight to a conviction by creating a presumption that the conviction is justified; where a conviction is proved the person convicted:
shall be taken to have committed that offence unless the contrary is proved.[20]
The English Committee considered that such a provision would allow a person to prove a conviction was erroneous by any means open to him but conceded that the onus would be difficult to discharge, especially where the conviction resulted from a fully contested trial by jury. Their opinion has since been confirmed in that in no reported case since 1968 has a conviction been successfully challenged when admitted under the Act. In one case in which a Commissioner in divorce held that a husband had been wrongly convicted of incest, the Court of Appeal scathingly criticised his ‘cavalier and airy dismissal’ of the criminal proceedings, which had included an unsuccessful appeal to the Court of Criminal Appeal, and reversed his decision: Taylor v Taylor.[21] Lord Justice Davies, on discussing the onus of proof cast by section 11(2)(b), stated:
It is probable, though I do not want to make any particular pronunciamento about it at the moment, that that is an onus of proof on balance of probabilities. But having said that, it nevertheless is obvious that, when a man has been convicted by twelve of his fellow countrymen and countrywomen at a criminal trial, the verdict of the jury is a matter which is entitled to very great weight when the convicted person is seeking, in the words of the statute, to prove the contrary.
The decision in Wauchope v Mordecai[22] illustrates the potency of the presumption. The plaintiff was injured while riding his bicycle past the defendant’s car when the defendant opened the car door. The defendant was convicted of a traffic offence of opening his car door so as to cause injury or danger to any person. In the negligence action the defendant succeeded at first instance; the trial judge excluded the conviction in error, not being aware of section 11 of the UK Act. On appeal the plaintiff succeeded, the Court holding that the defendant failed to show that he had not ‘opened his car door so as to cause injury’. This raised an inference of negligence. Surprisingly no question of contributory negligence seemed to arise.
• A Presumption only or Evidence. Problems have arisen in the application of the legislation does the evidence of the conviction merely raise a presumption or is it to be given evidentiary weight as well? In Stupple v Royal Insurance Co[23] the plaintiff had been convicted of the armed robbery of 87, 300 pounds. Two days after the robbery police found 1050 pounds in the plaintiff’s flat and some of the notes were identified as those stolen. The police handed the whole amount found to the defendant insurer but the plaintiff sued to recover the notes as his own property. The defendant counter-claimed for the amount stolen and relied upon the plaintiff’s conviction for the robbery. The plaintiff challenged his conviction with some fresh evidence but the judge at first instance, while finding Stupple had raised some reasonable doubts about the correctness of the conviction, nevertheless held that Stupple had failed to discharge the onus set by s 11(2)(a). On appeal the Court of Appeal upheld the judgment for the defendant. Lord Denning said:
I think that the conviction does not merely shift the burden of proof. It is a weighty piece of evidence of itself. For instance, if a man is convicted of careless driving on the evidence of a witness, but that witness dies before the civil action is heard as in Hollington v Hewthorn & Co Ltd then the conviction itself tells in the scale in the civil action. It speaks as clearly as the witness would have done, had he lived. It does not merely reverse the burden of proof. If that was all it did, the defendant might well give his own evidence, negativing want of care and say: ‘I have discharged the burden. I have given my evidence and it has not been contradicted’. In answer to the defendant’s evidence the plaintiff can say to him: ‘But your evidence is contradicted by the conviction’.
Lord Justice Buckley however, said:
In my judgment, proof of conviction under this section gives rise to the statutory presumption laid down in s 11(2)(a) which, like any other presumption, will give way to evidence establishing the contrary on the balance of probability without itself affording any evidential weight to be taken into account in determining whether that onus has been discharged.[24]
In the opinion of Lord Justice Buckley the presumption could be rebutted by evidence of matters such as the circumstances of the criminal proceedings, the witnesses called therein, the evidence called and whether it was believed and whether the defendant pleaded guilty. However he considered that matters such as the status of the court and whether it was a majority or unanimous jury verdict were not significant in assessing the conviction. Importantly, his Lordship stressed that it would be impossible to weight the ‘unexplored’ fact of the conviction itself, and so to that extent implicitly agreed with critics of the reform.[25]
Lord Justice Buckley therefore suggested that the previous conviction must be investigated, but he differed from Lord Justice Goddard in regarding this as a ‘re-hearing’ of the criminal proceedings. In his opinion, the civil court is not concerned with the propriety of the conviction nor with the evidence therein, except so far as the evidence is reproduced before him. In the result of Stupple’s case, Lord Justice Buckley agreed with Lord Denning and Lord Justice Winn (who could not consider this issue) that Stupple had failed to discharge the burden on him.
Lord Denning’s interpretation of s 11(2)(a) to mean that a conviction itself is a weighty piece of evidence, has been supported as a matter of interpretation of the UK provision[26] and as ‘common sense’ that a jury’s decision is of weight in itself.[27] In principle, however, the editors of Phipson support the view of Lord Justice Buckley that a conviction should merely act as a trigger for the operation of the presumption.[28] This view was also adopted subsequently by Justice Stirling in Wright v Wright,[29] and is favoured in a note written on the area:
It seems contradictory to hold that after the conviction has given rise to the presumption of guilt the court still has to evaluate the inferential value of the conviction and consider whether it really leads, logically, to a conclusion of guilt.[30]
Lord Denning’s approach requires this and gives a conviction a double operation: the conviction sets up a presumption that the person committed the necessary acts and also forms a weighty piece of evidence tending to negate any evidence in rebuttal of the presumption. The second step also requires the civil court to decide what weight the conviction has, something that Lord Justice Buckley clearly thought was impossible in Stupple. The alternative view of the English legislation is that once the presumption is raised, other evidence is required to support the correctness of the conviction, if there is reasonable evidence suggesting innocence.[31]
• Rebutting the Presumption. It is clear from Stupple’s care that to rebut the presumption in s 11(2)(a) the person convicted must do more than raise doubts about the technical correctness of the conviction. The section is concerned with whether the person did certain acts or not. Evidence that a conviction was marred by procedural errors or perjured evidence is not evidence that proves the contrary as is required to rebut the presumption. Evidence is required that the person did not commit the offence. It is not enough to show that the conviction is technically unjustifiable. This situation may be regarded as unfair.[32] It can have the result that a person may be presumed to be civilly liable on the basis only of a conviction that is technically erroneous.[33] Zuckerman suggested that the presumption that a conviction is evidence of the facts of the offence should operate only until the conviction is shown to be unjustified; at that stage the conviction should be discarded and other more specific evidence of the criminal proceedings, etc obtained. While this may be fairer in the context of the English Legislation and certainly would make it easier to challenge convictions, it would involve the civil court in virtually doing the work of a criminal appeal court, ie looking for every technical error that might serve to show the conviction was not absolutely proper. This would prolong civil actions rather than save time and expense by admitting a conviction.
In recommending that a conviction be presumed to be justified, the English Committee thought that the conviction would be challenged for such reasons as incomplete evidence, inadequate legal representation, the drawing of unreasonable inferences by the court or errors of law. The accused may plead guilty to save time, expense or embarrassment and may fail to appeal for the same reasons. These are the sort of issues which should be relevant to challenging the conviction, not errors which do not really impinge on the accused’s conduct in question. If the conviction itself is merely a trigger, its technical propriety is not so relevant as the above factors are. The approach of Lord Justice Buckley is preferable for this reason. The Queensland legislation addresses some of the issues. Section 79(3) of the Evidence Act 1977 (Qld) reads:
In any civil proceedings in which by virtue of this section a person is proved to have been convicted by a court of an offence he shall, unless the contrary is proved, be taken to have committed the acts and to have possessed the state of mind (if any) which at law constitute that offence.
This provision makes it clearer that the onus on the person challenging the conviction is to show that the person convicted did not do the relevant acts or have the intent, and that it is insufficient merely to show that a conviction is unjustified. However s 79(3) leaves unanswered the basic Stupple problem of whether the conviction is itself a weighty piece of evidence in considering whether the onus of proof has been met, or whether it is merely a ‘trigger’ for the presumption.
Whichever approach is to be preferred, it still seems to be clear that some investigation of the criminal trial will be required where a conviction is challenged. In Hunter v Chief Constable of Midland Police[34] Lord Diplock placed no fetters in the way in which this challenge might be mounted, and he expressly disapproved a dictum of Lord Denning’s in the same case[35] that the only way a conviction could be challenged was by showing that is was obtained by fraud or collusion, or by adducing fresh evidence which could not reasonably have been obtained beforehand.
Nevertheless criticism has been directed at the UK Act on the basis that it gives too much weight to the conviction and that it leads the court to a failure to properly weigh the evidence directly before it.[36] By contrast the New Zealand Law Reform Committee rejected the use of any presumption and recommended the admissibility of the conviction ‘for what it is worth’. This is the effect of s 34a of the Evidence Act 1929 (SA) and it is supported by the Canadian Task Force[37] and the Alberta Institute.[38] The New Zealand Committee stated four reasons[39] for admitting the conviction without a presumption or alteration in the onus of proof:
(a) that the civil court should not have to concern itself with the correctness of the conviction, because its correctness would rarely be relevant; what is more relevant is whether the accused did certain acts or not;
(b) that the presumption of correctness is unfair to the person challenging the conviction; he should be entitled to show there is a real doubt about the conviction and also show that his opponent has failed to discharge the overall onus of proving his case;
(c) that to do so avoids the Stupple problem; the conviction would not be a ‘trigger’ but an item of evidence in itself, as Lord Denning stated;
(d) The presumption is unfair to third parties such as employers, insurers etc. who wish to avoid the effect of the conviction and who were not a party to the criminal proceedings.
In general such an approach may be supported because
How much weight shall be given to evidence is a question of judgment incapable of a priori determination ... Anglo-American law ... concerns itself with admissibility as distinguished from weight.[40]
389. General Criticisms. There are two criticisms applicable to both approaches taken by Australian legislation:
• Unfair. It is unfair to admit a conviction, obtained on the evidence of a witness, when that witness is available but deliberately not called by the party tendering the conviction. Failure to call the witness may deprive the party, against whom the conviction is tendered, of any real opportunity of a fresh cross-examination of the witness’ evidence. In the opinion of the New Zealand Committee the non-attendance of that witness:[41]
… at the civil trial does more than affect the weight to be attached to the conviction; it affects the conduct of the trial in an important respect. We think that it is undesirable that X’s opponent should be entitled, at his option, to deprive the court of an available witness and to proceed on the basis of a conviction founded on the evidence of that very witness. The view that we have formed, after anxious consideration, applies whether the later civil proceedings are heard by a magistrate, by a judge alone, or by a judge and jury. No-one can weigh the probative value of a conviction against the probative value of evidence which has not been heard. The position is different when the defendant pleaded guilty in the earlier criminal proceedings: in that event no witness would be called in the criminal proceedings, and the foregoing reasoning does not apply. The defendant’s guilty plea already operates as an admission and is admissible accordingly, and we have no wish to alter the present law in this respect.
The Committee’s proposal for reform of the rule in Hollington v Hewthorn is ‘that if a witness for the prosecution or the defence was called in defended criminal proceedings but is unavailable to give evidence in later civil proceedings the judge or magistrate in the civil proceedings should have a discretion to admit the conviction as evidence. This discretion should be exercised having regard to:
(a) the importance of the fact which the conviction, if admitted, would tend to prove;
(b) the availability of any other witness to the same fact;
(c) when the trial is with a jury, the likely prejudicial effect of the conviction upon the jury as compared with its probative value;
(d) all such other circumstances as the court considered relevant.
A witness would be defined as being unavailable for the purpose of this recommendation when either:
(a) undue delay or expense would be caused by requiring his attendance; or
(b) he is dead; or
(c) he is outside New Zealand, and it is not reasonably practicable to secure his attendance; or
(d) he is unfit by reason of old age or his bodily or mental condition to appear as a witness; or
(e) he cannot with reasonable diligence be found’.
The Law Reform Commission of British Columbia[42] has criticised this measure as unsatisfactory, because the definition of an ‘unavailable’ witness is too cumbersome and vague. The substance of the five criteria already exist in Australian legislation modifying the hearsay rule.[43]
• Including Offences Where Onus on Accused. Another objection to the legislation is that it results in the admission of convictions in respect of statutory offences in which there are artificial deeming provisions in proof of the offence, or in which the onus of proof lies upon the accused. Such convictions may not have the same probative force as proof of guilt, as a conviction of a common law offence. The Tasmanian Law Reform Committee rejected reform in part because the high probative value of a conviction exists in their opinion, only where the offence is proved beyond reasonable doubt. The Committee concluded that many modern statutory offences are found to be proved only by the aid of special evidentiary provisions. Some of their examples are:
(a) where allegations in a complaint are deemed to be proved in the absence of proof by the defendant who bears the legal onus in this regard;[44]
(b) where the concentration of alcohol in a sample of blood is deemed to be the concentration in the accused’s blood, for a period of the previous four hours;[45]
(c) where a certificate is deemed to be sufficient evidence of the facts stated therein unless the accused requires the giver of the certificate to attend court;[46]
(d) where a person is deemed to have caused the emission of a pollutant if he does certain acts.[47]
On the other hand, it is possible to take such matters into account in deciding what weight to give to the evidence.
390. Specific Legislation. Section 83 of the Trade Practices Act 1974 provides for the admissibility of a finding of fact made by a court in various proceedings under the Act, in proceeding against the same person under sections 82 or 87 (1A). Section 83 also makes the finding of fact ‘prima facie’ evidence. This is unsatisfactory because of the uncertainty of the meaning of ‘prima facie’.
391. Section 92 of the Marriage Act 1961 (Cth) provides that a person may apply for a declaration of legitimacy from the Family Court or a Supreme Court. By ss (6) any order made binds the Crown but does not affect the right of persons not party to the proceedings, or to whom no notice of the proceedings was given. This suggests that a finding of paternity under s 92 is inadmissible in any other proceedings where the parties differ, and is a significant divergence from the position under the State Status of Children legislation.
392. The Status of Children legislation has its own provisions to the effect that an order against a person under a Maintenance Act shall be prima facie evidence of paternity in any subsequent proceedings.[48] Some Acts also have provisions to the effect that where a person obtains a declaration of paternity it shall for all purposes be conclusive evidence of the matters contained in it, except that is rebuttable by the child if not a party to the proceedings.[49] These sections include declarations of paternity made in any Australian jurisdiction or in New Zealand. In the case of paternity findings under the status of children legislation there is no need for legislation in Queensland, Northern Territory and in New South Wales. There is a lack of uniformity, however, in the text and extent of these provisions in Australian jurisdictions.
393. It is not proposed, however, to affect existing Commonwealth legislation. The intention is to produce proposals of general application. The operation of specific rules will be preserved at this stage. As to the above State and Territory provisions, they will be overridden by the draft Bill. This should not create difficulties for federal courts. The issues are unlikely to arise except in the Family Court—which has its own presumptive provisions. The position of Territory courts will be considered further in the light of general proposals produced.
[1] See Law Reform Committee of Great Britain, 15th Report, The Rule in Hollington v Hewthorn, Cmnd 3391, London, 1967, para 4.
[2] Torts and General Law Reform Committee of New Zealand, Report, The Rule in Hollington v Hewthorn, 1972, para 10.
[3] Hinds v Sparks [1964] Crim L Rev 717: Goody v Odhams Press [1967] 1 QB 333. See also Hinds v Sharks, reported in The Times, (28 July 1964 and 30 July 1964).
[4] Note—this aspect alone of the common law rule has been reformed in New South Wales—Defamation Act 1974 s 55.
[6] See Smith v Selwyn [1914] UKLawRpKQB 94; [1914] 3 KB 98.
[7] See Jorgensen v News Media (Auckland) Ltd [1969] NZLR 961. Note: Goddard LJ’s analysis of the issues is based on Stephen’s Digest of the Laws of Evidence (12th ed). This explains the use of what today may appear to he out of date terminology, concepts and rule.
[8] ‘No-one should be prejudiced by a transaction between strangers’: see JA Gobbo, D Byrne, JD Heydon, Cross on Evidence, 2nd Aust edn, Butterworths, 1979, Sydney, para 2.25.
[9] [1969] NZLR 961, 978.
[10] [1907] UKLawRpCh 85; [1907] 2 Ch 236. In this case an order of the General Medical Council finding misconduct against two dentists was admitted in a partnership dispute as evidence of misconduct by the dentists.
[11] [1901] UKLawRpAC 26; [1901] AC 601.
[12] [1911] UKLawRpPro 4; [1911] P 108.
[15] General Medical Council v Spackman [1942] 2 KB 261, 274; upheld on this point by the House of Lords [1943] AC 627, 635. See Z Cowen & PB Carter, ‘The Admissibility of Criminal Convictions in Subsequent Civil Proceedings’ Essays on the Law of Evidence, Oxford, Clarendon Press, 186-7 for the underlying inconsistency between Spackman and Hollington.
[16] [1969] NZLR 961, 977.
[17] Cross on Evidence, para 17; JH Buzzard, R May & MN Howard (ed) Phipson on Evidence, 13th ed, Sweet & Maxwell, London, 1972, 69-73; Garton v Hunter [1969] 1 All ER 451, 453.
[18] [1969] NZLR 961, 990.
[19] See Appendix C. para 159.
[20] Civil Evidence Act 1968 s 11(2)(a); see also Evidence Act 1977 (Qld) s 79(3).
[21] [1970] 1 WLR 1148, 1152.
[23] [1970] 3 WLR 217, 223.
[24] id, 227.
[25] eg EW Hinton (1931) 27 Ill L Rev 195; M Dean, ‘Law Reform Committee, Fifteenth Report on the Rule in Hollington v Hewthorn’ (1968) 31 Mod L Rev 5H, 60; Torts and General Law Reform Committee of New Zealand. 21; Law Reform Committee of Western Australia, Project No 20, Report on Evidence of Criminal Convictions in Civil Proceedings, Perth, 1972, 3.
[26] Phipson on Evidence, para 661; P Murphy, A Practical Approach to Evidence, Financial Training Publications Ltd, London, 1980, 263.
[27] JD Heydon. Cases & Materials on Evidence, London. Butterworths. 1975, 378.
[28] Phipson on Evidence, para 661.
[29] (1971) 115 Sol Jo 173.
[30] A Zuckerman. ‘Previous Convictions as Evidence of Guilt’ (1971) 87 LQ Rev 21, 25.
[31] See CJ Miller, ‘Evidence of Conviction in Civil Proceedings—II’ (1971) 121 New LJ 598.
[32] ibid.
[33] Zuckerman, 27.
[34] [1981] UKHL 13; [1981] 3 All ER 727, 735.
[35] Reported as McIlkenny v Chief Constable [1980] 2 All ER 227, 237-8.
[36] Dean, 61.
[37] Federal/Provincial Task Force of Canada, Report on Uniform Rules of Evidence, Carswell Co Ltd, Toronto, 1982 para 15.6.
[38] Institute of Law Research and Reform, University of Alberta, Repent No 16, The Rule in Hollington v Hewthorn, Edmonton, Alberta, 1975, 13-4.
[39] Torts and General Law Reform Committee of New Zealand, 25.
[40] EM Morgan. Foreword, in American Law Institute, Model Code of Evidence, Philadelphia, 1942, 11.
[41] Torts and General Law Reform Committee of New Zealand. 20.
[42] Law Reform Commission of British Columbia, Report No 30, The Rule in Hollington v Hewthorn, 1977, Vancouver, Canada, 32.
[43] Evidence Ordinance 1971 (ACT) s 30(1)(c); Evidence Act 1958 (Vic) s 55(5), Evidence Act 1910 (Tas) s 81A; Evidence Act 1905 (Cth) s 7D(2); Evidence Act 1929 (SA) s 34C; Evidence Act 1977 (Qld) s 92.
[44] Industrial Relations Act 1975 (Tas) s 61.
[45] Road Safety (Alcohol and Drugs) Act 1970 (Tas) S 23.
[46] Environment Protection Act 1973 (Tas) s 42.
[47] Environment Protection Act 1973 (Tas) s 43.
[48] Status of Children Act 1979 (NT) s 9(3); Family Relationships Act 1975 (SA) s 7(c), (d): Status of Children Act 1978 (Qld) s 8(3); Children (Equality of Status) Act 1975 (NSW) s 12.
[49] Status of Children Act 1978 (Qld) s 8(5); Status of Children Act 1979 (NT) s 9(5): Children (Equality of Status) Act 1975 (NSW) s 12.
394. Unsound Theoretical Basis. The theory of personality underlying the admission of character evidence, premised on the existence of stable ‘traits’, has not been supported by empirical research. A person’s ‘character’ is not so highly integrated as to motivate trans-situational consistency of behaviour. Rather, valid predictions about human behaviour are unlikely unless an individual is placed in similar situations. This issue will be discussed further.[1]
395. Reputation Evidence. Some arguments may be advanced in favour of permitting evidence of good character and rebuttal evidence limited to reputation evidence. It is relatively easily established and is a convenient way of obtaining the views of a large number of people—a shorthand summary of a person’s background. It would be, by definition, non-specific and relatively colourless and would probably not confuse. It also reflects ‘a general distrust of character evidence and a specific distrust of personalised character evidence’.[2] But the arguments against admitting reputation evidence are formidable. Such evidence is of doubtful probative value and difficult to assess because:
• it is based upon the hearsay of a community;
• a person’s reputation may vary sharply depending on the group selected to establish it;
• it is in one sense opinion evidence, the opinion of many individuals who remain silent and anonymous. The trustworthiness of the opinion reported in court is often rather uncertain since it comes from friends or enemies apt to hear what they want to hear;
• there is a danger that it is merely rumour, although that danger is diminished by the requirement that reputation relates to the general character of a person rather than to some particular event;
• the concept of ‘community’ may be out of date because of modern society’s anonymity and mobility;
• reputation evidence can mislead. ‘A witness may with perfect truth swear that a man who to his knowledge had been a receiver of stolen goods for years, has an excellent character for honesty if he had the good luck to conceal his crimes from his neighbours’.[3]
The United States Supreme Court has criticised rules allowing use of reputation evidence to establish character as ‘illogical, unscientific, and anomalous, explainable only as archaic survivals of compurgation’, opening a ‘veritable Pandora’s box of irresponsible gossip, innuendo and smear’.[4] Such evidence carries with it the dangers of prejudice, misleading the fact finder, diverting its attention from the principal issues at the trial, and time and expense. The law is also out of touch with reality. Ladd wrote: ‘it is significant that whenever character is used in general life as a basis for predicting human conduct it is character and not reputation with which we are primarily concerned.[5] It imposes limits that cannot be observed. The average witness may not understand the admonition not to give his opinion, but that of others. He comes to the court to give his opinion and, despite some wrangling among lawyers, that is usually what he manages to do.
396. Non-expert Opinion Evidence. It is unclear whether opinion evidence of character is admissible.[6] The arguments in favour of its admissibility largely derive from the criticisms of reputation evidence:
Take the place of a juryman, and speculate whether he is helped more by the witnesses whose personal intimacy gives to their belief a first and highest value, or by those who merely repeat a form of words in which the term ‘reputation’ occurs ... The Anglo-American rules of evidence have ... never done anything so curious in the way of shutting out evidential light as when they decided to exclude the person who knows as much as humanly can be known about the character of another, and have still admitted the secondhand, irresponsible product of multiplied guesses and gossip which we term ‘reputation’.[7]
It might be argued that it is going but little further to permit the character witness to express his personal opinion directly based upon his perception of that person’s behaviour. When reputation for character is offered on the issues in criminal trials, the jury probably regards the statement of the accused’s reputation as corresponding to the opinion of the witness. As noted earlier, much reputation evidence, especially in today’s urban communities filled with strangers and transients, is opinion evidence in disguise. Permitting opinion evidence would encourage testimony illuminating the accused’s unique characteristics in place of empty formulae equally applicable to all. On the other hand, there is:
a fear that the witness will express his own prejudice or feeling towards the individual, or base his opinion upon some misjudged and unreasonable experience which he has had with him ... Personal opinion ... might also reflect the character of the witness giving the character testimony as much as the person about whom the testimony is given.[8]
The New South Wales Law Reform Commission has argued that ‘opinion evidence is too easily impaired by emotions of hatred or motives of revenge’.[9] A personal opinion that another is a person of a particular general character tends to be so subjective as not to be subject to meaningful cross-examination. Further, opinions can be difficult to assess:
We all develop some opinions based upon observations that we do not consciously apprehend, and therefore, cannot describe. Opinions of another person’s character are of this kind.[10]
Moreover, while a small number of witnesses usually adequately serves to establish reputation, and the point at which reputation testimony becomes unnecessarily cumulative is not difficult to discern, individual opinion testimony is theoretically never cumulative.[11] As the New South Wales Law Reform Commission stated:
We do not think statements of opinion should be admitted because opinion is unreliable unless supported by evidence of specific instances of conduct; if such evidence is available, it should be given and not the evidence of opinion.[12]
Finally, the most significant limitation of opinion evidence as to character is one it shares with reputation evidence. That is its generality—its lack of probative value of a person’s behaviour in a specific situation.[13]
397. Expert Opinion Evidence. Opinion evidence offered by an expert about the character of an accused presents a specific issue. It can often be focussed on specific circumstances. Moreover, its value is likely to be greater than the sum of specific acts on which it is based. There are, of course, problems.[14] Psychiatrists are a good example. One of the most difficult areas is that of terminology: it is often not clear what psychiatric terms and psychiatrists will themselves disagree as to their meaning. Intelligible communication between lawyers and psychiatrists is often difficult, threatening to confuse and mislead a fact finder. Moreover, some psychiatrists have themselves declared that too much significance is given to their views in the court, even that the judicial system is no place for a psychiatrist.[15] But is arguable that most problems, particularly those relating to communication between expert and layman, will be diminished if the expert is allowed to elucidate the facts upon which he bases his opinion. In Carter v US[16] Judge Prettyman observed that the ‘chief value of an expert’s testimony rests upon the material from which his opinion is fashioned and the reasoning by which he progresses from his material to his conclusion’. The advantages of expert opinion evidence must on occasion outweigh the disadvantages, so that ‘the door of the court room should be left open for advances in medical science to show us the means of bringing our system closer to reality and truth’.[17] Caution does not mean routine exclusion. Adequate judicial control can be exercised via relevance determinations, rules controlling the admission of expert evidence and other rules controlling the situations and circumstances in which it may be admitted.
398. The Assumption of the Indivisibility of Character. Where an accused person leads evidence as to his good character, he may be cross-examined about conduct which reflects adversely on him. This appears to treat an accused person’s character is indivisible. This view has been heavily criticised. Nokes argues:
If a man is charged with forgery, cross-examination as to his convictions for cruelty to animals can have no purpose but prejudice; and so, if a man is charged with indecency, cross examination as to convictions involving dishonesty is irrelevant to the charge, though it may show that the accused is a ‘bad man’.[18]
Psychological research relevant to this issue is considered below.
399. Use of Rebuttal Evidence. If the law is that rebuttal evidence may be used only to neutralise good character evidence, it may be criticised as impractical. It is virtually impossible to restrain a jury from considering material offered by the prosecution in rebuttal as evidence going towards the probability of the accused’s guilt.[19]
400. Prohibition of Specific Propensity Reasoning. A number of English and Australian authorities provide some support for the contention that propensity reasoning has not always been prohibited. But most assert that it is prohibited.[20] If the prohibited reasoning is the reasoning that the accused committed the crime in question because of a general propensity to break the law then there would be no criticism to be made. Such a rule appears completely justified. If, however, courts are prohibited from concluding that the accused committed the crime in question because of, for example, a specific propensity to commit that crime in a similar and special way, a number of criticisms can be made. Justice Murphy stated in Perry v R[21] that the ‘supposed rigid distinction between prohibited use of previous criminality to show propensity’ and other uses ‘is unsatisfactory’. The strictness of such rule lacks common sense, requiring the automatic exclusion of evidence which, despite its dangers, might be of very high probative value. In some cases, the propensity may be so specific and unique, its probative value so great, that its value for accurate fact determination substantially outweighs the risk that the tribunal of fact will be misled by it. It also requires artificial and unrealistic distinctions to be made. For example, in R v Straffen[22] the jury would not be permitted to reason that:
• Straffen had committed (on his admission) two murders of similar victims in a similar (unusual) way;
• he, therefore, had a propensity to act in that way;
• he, therefore, was likely to have committed the offence on this occasion.
But it would be allowed to reason:
• three murders were committed of similar victims in a similar (unusual) way;
• it is likely, therefore, that they were committed by the same person;
• Straffen admitted that he committed two of the murders;
• it is likely, therefore, that he committed the third.
The former reasoning seems the more natural and poses no more danger of prejudice to the accused. Similar dangers exist whether the reasoning is from a specific propensity or from coincidence. Admittedly, taking as an example reasoning via the improbability of coincidence, it is arguably less prejudicial to show a possible connection with previous misconduct than to prove responsibility for that conduct in order to establish propensity to behave in a particular way. Moreover, coincidence reasoning does not require any assumption that the accused has not mended his ways. But the jury may overestimate the unlikelihood of coincidence involved in the particular combination of events. While a trial judge may be unwilling to draw any conclusions from the existence of similarities in separate events, a jury may tend to give the unlikelihood of coincidence greater weight. Stated differently, the jury may misestimate the extent to which a particular combination of events is unlikely to have occurred without a connecting cause. As Justice Murphy stated in Perry v R, ‘common assumptions about improbability of sequences are often wrong. A suggested sequence, series or patterns of events is often incorrectly regarded as so extremely improbable as to be incredible’.[23] Further, evidence adduced for either purpose suffers from disadvantages associated with requiring the accused to answer allegations concerning much of his life and consumption of time and money.
401. In reality, the reasoning that is available will depend upon the facts in each case. Where it is clearly demonstrated that the accused was responsible for the other unusual acts (as in Straffen) it is possible to reason both via the accused’s specific propensity and via coincidence. Where there is no more than a series of unusual acts and evidence of the opportunity to have caused each one then coincidence reasoning may be the only reasoning that is appropriate. The facts of cases will vary and there is much to be said, therefore, for Justice Wilson’s comment in Perry v R that the twin principles stated by Lord Herschell in Makin’s case may be interpreted not in terms of a rule of exclusion but as ‘a question of degree in each case’.[24]
402. Limits on Admission. The prevailing orthodox view appears to be that similar fact evidence is not admissible unless it has ‘a strong degree of probative force’. Even if admissible, it may be excluded under judicial discretion if ‘its prejudicial effect outweighs its probative value’. While there is little criticism of the proposition that mere relevance should not be enough for admission of similar fact evidence, indeed that admission should be the exception rather than the rule, this approach is unsatisfactory for a number of reasons:
• Failure to Formulate Specific Rules Where Possible. To the extent that rules can legitimately be formulated, it is desirable they should be adopted. A requirement of ‘substantial probative value’, or some similar test, is, by itself, amorphous, indefinite, subjective and discretionary. Of course, if no more precision were possible without introducing arbitrary and illegitimate distinctions, such a test would be unavoidable. But that is not the case here. If propensity reasoning is permitted, it is only legitimate in certain specific circumstances. Psychological studies[25] indicate, for example, that similarity in circumstances should be the primary prerequisite for admission of such evidence. Evidence adduced for such a reasoning process should only be admitted where those requirements have been satisfied. Equally, when a coincidence reasoning process is adopted it may be possible to formulate preconditions to admission which ensure that the degree of probative value of the evidence is maximised.
• Failure to Give Guidance. Where it is appropriate to impose a general test, containing discretionary elements, courts should be given as much guidance as possible with respect to it in order to maximise predictability and consistency of application. One writer says that the phrase ‘positive probative value’ has ‘the merit of being absolutely all embracing, but it is vague, so vague as to require explanation, which in turn needs examples, which are found in cases. Before we know where we are the cleared ground will be once more covered with structures’.[26] The orthodox double test refers to both ‘probative value’ and ‘prejudice’. This seems to exclude from consideration, or at least does not expressly refer to, other factors that affect the value to the trial process of the admission of such evidence, like the need for the evidence, estimation problems, confusion of the fact finder, time and expense. It does not articulate the factors which should be taken into account in assessing probative value (like the number of times the similar events have occurred, the extent to which the behaviour is unusual, and so on), nor those which should not be considered. In particular, it does not indicate that the factors relevant to the assessment of the probative value of similar fact evidence adduced for a propensity reasoning process are not the same as factors relevant to other reasoning processes. Equally, it does not indicate that the dangers with one reasoning process may be different from those with respect to another reasoning process.
• Risk to Innocent Accused. The double test may endanger an innocent accused. Although similar fact evidence must, to be admissible, have ‘substantial probative value’, such evidence will be admitted even if its ‘prejudice’ (ie its dangers and disadvantages) is nearly, or equally, as substantial as that probative value. This result may be defended by the argument that such prejudicial effect will not matter if in fact the evidence is substantially probative of the accused’s guilt. But the tribunal of fact may not have the same view of the probative value of the evidence and yet still be influenced by its prejudicial effect.
403. Common Law. The common law relating to evidence of reputation and prior sexual conduct of victims of sexual crimes may be criticised on a number of points:
• Unreliability of Reputation Evidence. As pointed out earlier, reputation is unsatisfactory. It is particularly unreliable when it relates to sexual matters. Sex lends itself to sensationalism and exaggeration. Since sexual activity, moreover, is usually private, one’s sexual reputation generally reflects little more than speculation. Most important:
normal social processes tending to ensure that ‘the truth will out’ are ineffective to offset such exaggeration and speculation. Because people value privacy, it is unlikely that a women who is rumoured to be promiscuous will seek to correct the record by detailing the true facts of her sex life. Moreover, providing the complainant with an opportunity to do so at trials fails to solve the problem. In effect, this puts the victim on trial, thus obscuring ultimate issues, and inviting a verdict based on the juror’s personal notions of morality.[27]
As the District of Columbia Court of Appeals stated in McLean v US:[28]
We deem a woman’s reputation for unchastity to be of very slight probative value since it is neither relevant to her credibility as a witness, nor material on the issue whether on the occasion of the alleged crime she consented or was forced to submit to an act of sexual intercourse ...
• Reasoning From Sexual History Unsound. The traditional view,[29] while failing to note the diversity of the ‘class’ of the ‘unchaste’, argues that women who engage in non-marital sexual intercourse have a propensity for doing so, and that this propensity has predictive value. If a woman demonstrates her inability to conform to the norm, it could be anticipated that she would act out her regrettably lax sexual disposition on subsequent occasions. In an earlier day, it might have been correctly surmised that a female who had ‘already defied convention, risking society’s condemnation, would be readier to stray at a given time than another woman of fainter heart or cooler blood’.[30] But if anything is clear about present day sexual relationships, it is that they come in many varieties reflecting different degrees of interpersonal commitment. The significance of sexual activity as a predictor of future behaviour must vary accordingly. Indeed,
a woman’s consensual sexual intercourse on some occasions with some men simply does not raise an inference of consent on another occasion with another man. In the absence of clear proof to the contrary, one can presume that a women will freely choose her partners, picking some and rejecting others, in line with highly personal standards not susceptible of generalisation.[31]
Research conducted over the past thirty years indicates that most young women now engage in pre-marital sexual relationships.[32] Contemporary society generally considers such behaviour normal. With this change in prevailing behaviour and attitudes, the mere presence of non-marital sexual experience provides no basis for inferring a specific character ‘trait’ predictive of present consent.
• Failure to Recognise Importance of Similarity of Circumstances. A woman’s actions in the past are likely to be a sound indication as to whether she consented only if they show her having consented in similar circumstances. The UK Heilbron Committee stated:
We have reached the conclusion that the previous sexual history of the alleged victim with third parties is of no significance so far as credibility is concerned, and is only rarely likely to be relevant to issues directly before the jury. In contemporary society sexual relationships outside marriage, both steady and of a more casual character, are fairly widespread, and it seems now to be agreed that a woman’s sexual experiences with partners of her own choice, are neither indicative of untruthfulness nor of a general willingness to consent.[33]
Where, for example, a woman claims to have been raped on a first meeting it would not appear to be relevant that she had had intercourse with close men friends in the past. Accordingly, no questions should be addressed to her on that matter. Questions which aimed to show she was willing to engage in intercourse with strangers, however, could be permitted. On the other hand, if a woman were alone in her home at night and was raped by a strange man who entered through the bedroom window, it would not be appropriate that the court give leave for her to be questioned on any aspects of her previous sexual history.
• Dangers and Disadvantages of Sexual Conduct Evidence. There are several disadvantages and dangers that flow from the admission of sexual history evidence:
(a) Estimation Problems. There is a general tendency to accord too much weight to evidence of character.[34] But, in this context, emphasis must be placed on the tendency to misuse sexual history through ignorance. Powerful taboos still inhibit the dissemination of accurate, scientific, knowledge about human sexual behaviour. Of course much of the task conventionally assigned to the fact-finder is the drawing of inferences that are intuitive, unscientific and of uncertain grounding, especially when more precise answers are hard to come by. But there are differences of degree, and ignorance in the sexual domain is of a special order.
(b) Prejudice. Justice Zelling observed in R v Gun; ex parte Stephenson the problem:
... which has been referred to in a number of publications in this area, and which I have observed for myself when watching women members of the jury, and that is that quite a number of women jurors will not convict for rape when the girl admits that she is not a virgin, on the basis that if the girl puts so little value on her chastity, why should we the jurors by our verdict cause a boy to be sent to gaol for violating it. Again, this is not logical, but it is a fact of life which has been attested to in a number of jurisdictions.[35]
It is not fanciful to suppose that jurors confronted with evidence of a previously sexually active rape complainant will adopt unarticulated premises such as: ‘she got what she deserved’, ie even if she were raped, she has at long last been punished for past misdeeds; she is ‘previously damaged property’, ie she lacks purity and has therefore suffered no great additional harm (alternatively, while the harm to her is slight, cost to the accused, if convicted, would be out of all proportion to the offence). The ultimate travesty, in this view, would be to convict the man for raping a prostitute. How much, the fact-finder might reason, could she have suffered? As an extreme example, the fact-finder might reason ‘all women want to be raped’ and the evidence of prior ‘unchaste’ conduct is somehow seen as confirmation of this fantasy.
(c) Other Disadvantages. Sexual history evidence also raises ‘collateral issues which are nearly impossible to rebut’ and ‘it diverts the jury’s attention from the principal issues at trial’.[36]
• Tendency to Ignore Policy Considerations. A number of possible policy factors, which tend to overlap, may not have .been fully considered:
(a) Protection of Witnesses. Although the general principle is that no obligation should be imposed on the court to shield a witness from being actively cross-examined, the courts do recognise the need to protect a person who takes the stand from attacks designed merely to harass, annoy or humiliate. But the common law has done little to respect this need in the context of rape trials.
(b) Sexual Privacy. Our society has extremely strong taboos against talking about sexual matters openly. It is arguable that introduction of sexual history impinges upon the victim in a way that differs in kind and degree from the ordinary rigours of being a witness. For many people (especially, in our society, women) the trauma of baring one’s intimate past to the eyes of the world—turning one’s bedroom into a show case—overshadows the usual discomfort of testifying, or having others testify, to one’s biases, lies, or even convictions for criminal acts. It is arguable that a person’s right to privacy in the sensitive area of sexuality should be taken into consideration.
(c) Protection of Sexual Complainants. A major issue is whether a witness, in particular a sexual complainant in the witness box, has any rights which the law does not adequately protect. It could be argued that because the complainant runs the risk of being branded not only untruthful but also sexually immoral and vindictive, some greater protections should be offered.
(d) Prosecution of Rapists. It has been argued that, as a collary of the above, rape victims are unwilling to come forward with rape charges or to give evidence in trial.
404. Legislation. The common law has been replaced, to some extent, by legislation. But that legislation is inconsistent in both scope and substance. Specific criticisms may be made:
• Tasmanian and South Australia. The legislation deals with the problem of credibility but otherwise leaves the matter to the trial judge’s discretion. This is unsatisfactory, since no guidance is given in the form of articulated principles. This has led, particularly in South Australia, to a mass of uncertain case law. Many of the above criticisms may still be appropriate.
• Victoria and Queensland. The legislation excludes evidence of reputation (while not absolutely excluding evidence ‘relevant’ to credit) and then imposes a test of ‘substantial relevance’. Evidence of sexual reputation is of minimal probative value and should be excluded. The question of credibility will be considered below. The test of ‘substantial relevance’ is subject to the same criticism as the discretionary language used in Tasmania and South Australia.
• New South Wales and Western Australia. The detailed provisions reflect the view, generally justified, that the common law and unguided discretions in practice allow in evidence of prior sexual conduct on questionable rationales.[37] But they may be criticised on the grounds that it is impossible to predict in advance all the ways in which evidence of the complainant’s prior sexual experience might be properly relevant to what are the real issues in a particular case, so that a general exclusionary rule is inappropriate. In particular, sexual history going to some purpose other than character should not be categorically excluded. Such evidence should be eligible for admission if it is substantially probative on some non-character theory, such as the complainant’s intent, her motive and so on. The risk of unwarranted prejudice is not sufficient ground for categorical exclusion; the evidence should be received so long as it fulfills a permissible non-character purpose like showing ‘modus operandi’, motive, or to explain a particular alleged belief of the accused.
405. Unsound Theoretical Basis. The law permits a witness’ credibility to be attacked by wide-ranging cross-examination of the witness as to his character and conduct. The assumption behind the law is that there are such things as character’ traits and that knowing a persons character traits will help the fact-finder to determine whether a witness is or is not telling the truth. But no modern psychologist would consider moral disposition to be so highly integrated as to consistently produce the same behaviour in different situations. As pointed out earlier, moral decisions seem, rather, to be independent, and affected substantially by the particulars of each situation.[38]
406. Reputation Evidence. As pointed out earlier,[39] evidence of a bad reputation for truth and veracity is likely to be of a very low probative value. A reputation for honesty with respect to everyday affairs ‘has little probative value as to a witness’ credibility in court’.[40] In addition, reputation can be composed of matter which may mislead as to a person’s character, a person’s reputation may vary sharply depending on the group selected to establish it, and ‘the personal knowledge of a witness as to a man’s disposition is plainly superior to the multiple hearsay involved in reputation evidence’.[41] Indeed, reputation in respect to truth and veracity does not in fact ordinarily exist and witnesses who testify as to it are for the most part actually giving their own opinions.
407. Opinion Evidence. This issue also is discussed above.[42] The opinion of a non-expert witness as to another witness’ disposition to tell the truth is often unsatisfactory. The New South Wales Law Reform Commission stated in its Working Paper on the Course of the Trial:
If based on specific incidents, it may be sound; but the evidence of disposition which may usefully be admitted is testimony as to the specific incidents. If opinion is not based on specific incidents, it will rest on rumour, reputation, or prejudice. Rumour is plainly unsatisfactory. The same seems true of reputation. AS to prejudice, we agree with Wigmore’s observation that ‘the estimate of an ordinary witness as to another’s bad general character is apt to be formed loosely from uncertain data and to rest in large part on points of belief or conduct—a chance of error which is relatively small in the specific inquiry as to the other’s notorious untruthfulness ...’ Opinion evidence is too easily impaired by emotions of hatred or motives of revenge.[43]
408. Need for Limits. The traditional view is that ‘if the witness has, for his own purposes, chosen to do things which he must have been aware were serious breaches of accepted codes of proper behaviour in the community, then the court or jury may reasonably feel a doubt as to how far it can rely on his having refrained, in his evidence, from committing, for his own purposes, breaches of the accepted code against giving false evidence’.[44] This use of general character to reflect on credibility is based on a belief that individual units of personality are highly integrated and exert themselves pervasively across diverse situations. It has already been argued that this is an unsound assumption. Bentham illustrated the absurdity of the position by positing a man who valued his reputation for veracity so highly that he killed another who called him a liar, and then has his credibility impugned because of the homicide.[45] A specific example of this approach is the use of the sexual history of a rape complainant as relevant to her credibility.[46] But no evidence has been advanced to support the assumption that sexually active women are more likely to make a false rape accusation than sexually inactive women. Few would assert that a witness’ virginity is an indicator of her credibility. Any connection between sexual activity and veracity is wholly unproven. Chief Justice Bray of the South Australian Supreme Court thus ‘found it hard to believe that any reasonable person at the present time could assent to any of the following absurd propositions: ... 2. That the unchaste are also liable to be untruthful’.[47] The only specific acts which should be considered in this context are those which have some direct relationship with veracity. Where the credibility of a witness is to be evaluated, a preferable approach would be to examine and assess his behaviour in similar circumstances. The honesty, or lack of it, which is exhibited by the witness in these similar circumstances would be a more accurate indication of his credibility than would evidence relating to either his general character or his prior convictions for offences in which truth-telling is not an ingredient. Eggleston would go further and ‘limit severely the scope of cross-examination as to credit. As most witnesses will lie if the motive is strong enough, and many will lie merely to save lengthy explanations about matters which they think have nothing to do with the case, I do not regard the demonstration that a witness had lied about some irrelevant matter as affording much help in deciding whether he is telling the truth about the facts in issue’.[48]
409. Inability to Contradict Answers. The general rule that a cross-examiner is bound by the answer of a witness to a question going only to the credibility of that witness, while supported by a desire to keep trials within manageable limits and avoid detailed investigation of collateral issues, is an artificial and inflexible limitation which may result in the court, being misled. The New South Wales Law Reform Commission has noted that the rule ‘encourages perjury, for a witness knows that his false answer to a question on a collateral matter will be final; a different rule would make him readier to make a true answer for fear of later being found out when new evidence rebutting his story is called’.[49] It added that the present rule ‘encourages too much the asking of questions to set up innuendoes’. On a number of occasions the answer may be rebutted easily, with minimal disruption to the trial. Such a strict rule, although it is subject to exceptions, does not reflect the general concern to admit relevant evidence and is incompatible with a flexible approach on matters of credibility. Evidence which is relevant only because it contradicts the testimony of the witness (and thereby impugns the witness’ credibility) may have considerable probative value. The rule prohibits the admission of such evidence even if its probative value clearly outweighs any disadvantages (like consumption of time). Piddington’s case may provide an example of this type of case.[50] McCormick used the label ‘linchpin’ for the particular kind of collateral fact asserted by the witness to which independent contradicting evidence should be admitted despite the rule. It may be that the rule itself should disappear in favour of direct judicial application of a test balancing probative value and disadvantages.
410. Use of Evidence of Prior Convictions Unsatisfactory. The existing rule which admits evidence of prior convictions (and reputation evidence) to attack credibility, but not specific conduct, is based in part on time and confusion considerations. When a conviction exists there is no need to become involved in any preliminary fact finding to determine whether a prior act actually occurred. A conviction can be taken at face value. But a person’s willingness to break the law cannot automatically be translated into willingness to give false testimony. Further, there is nothing inherent in the fact of a conviction which makes the subject matter of the conviction relevant to credibility: rather it would seem that the specific instances of conduct engaged in would either enhance the credibility process or not regardless of whether a conviction was obtained on the basis of that conduct. Regardless of how overwhelming or simple the proof of the specific conduct is, it is prohibited. But a conviction would be admitted. Such a distinction makes no legal sense.[51] A far preferable solution is to allow in specific conduct which is clearly relevant to credibility. Convictions would assist in the proof of such acts. As with the US Federal Rules, inquiry should be limited to the witness’ specific acts directly manifesting in some way a behavioural characteristic of insincerity. Moreover, the requirement of relevance to truthfulness would reduce surprise, confusion and undue expenditure of time, and help to protect the witness from unwarranted abuse.
411. Attack on Character of Accused. In most jurisdictions, the law permits the character of an accused to be attacked by cross-examination if he has attacked the character of a prosecution witness. A number of criticisms may be made of this approach.[52] The UK Criminal Law Revision Committee summarised the major arguments against this approach in the following terms:
• it discourages an accused with a criminal record from attacking the credibility of Crown witnesses. If the Crown witnesses’ credibility is properly open to attack, then the jury should know about it;
• the admissibility of evidence adverse to the accused will depend on the tactics of the defence. This is wrong. The legal advisers of the accused are placed in the invidious position of having to choose between leaving the tribunal of fact in ignorance of the facts behind the evidence given by the prosecution witnesses and revealing such facts, but allowing the prosecution as a result to introduce prejudicial evidence against the accused including evidence of prior convictions. Whether the accused is convicted or not may depend on the way in which this choice is made, but it is not one that legal advisers should be called on to make. A Rule that operates in this way turns the criminal trial into a kind of game;
• the sanction will apply whether the attack made is necessary for the accused’s defence or not and whether the attacks made on the prosecution witnesses are true or not;
• if a sanction is required for false attacks on prosecution witnesses, the sanction should not be one which will make it more likely that the accused will be convicted because of prejudice that may be raised against him because of the allegations made in cross-examination to demonstrate his bad character;
• if cross-examination of an accused as to his bad character is not permitted because it would be prejudicial, it does not become any less prejudicial because the accused makes an attack on the character of prosecution witnesses;
• the law allows an attack on the accused’s credibility where he does not in his evidence attack the character of a prosecution witness, but his complete defence involves such an attack. If ‘Tit for tat’ is the justification, the law goes further than is warranted.[53]
Peiris raises another issue:
Since no inhibition is imposed on cross-examination of witnesses for the defence. other than the accused, with a view to indicating their bad character and so diminishing or destroying their credibility, it would appear logical that the identical rule should apply, reciprocally, to attacks on the veracity of prosecution witnesses by counsel for the defence. In principle and on the basis of policy it is unsatisfactory that the latter right should be hedged in by a qualification referable to the logically irrelevant issue of the accused’s own character and record.[54]
A further compelling objection to this approach is that it could tempt the police to extract confessions by violence from persons of bad character who cannot set up the violence at their trial for fear of exposing their records.[55] The New South Wales provision, derived from the majority recommendations of the UK Criminal Law Revision Committee Report, limits the right to cross-examine the accused to situations where the main purpose of the relevant imputations is to raise an issue as to the witness’ credibility’. This would curtail the extent to which cross-examination of the accused as to credit is allowed. But it would allow such cross-examination where the accused attacks the witness’ credibility, and would be open to a number of the objections to the rule generally applicable and set out above.[56] In addition:
• if an attack made on the credibility of a Crown witness is clearly justified (eg a conviction for perjury) then the accused’s character should not thereby be rendered open to attack;
• the attack that may be made under the NSW provision on the accused is one generally as to character and the evidence produced need not be particularly relevant to the accused’s credibility so long as it is relevant to his character;
• evidence as to the credibility of the accused is not of the same importance as that of Crown witnesses. What the accused says in his own defence is naturally suspect in any case. What is important is not the accused’s bare assertion, but the extent to which his version of the facts may cast a doubt upon the prosecution’s version. It helps very little in arriving at a just conclusion to know that the accused is an habitual liar, because in the circumstances in which he is placed even a normally honest person would be strongly tempted to lie and would quite possibly do so.[57]
412. Accused Giving Evidence Against Co-Accused—Objective Test. An accused gives evidence ‘against’ a co-accused if his evidence, examined objectively, supports the prosecution case against the co-accused. The co-accused may then attack his character. The objective test can make it very hard for an accused to properly defend himself. It is worth noting the views of Lord Reid in Murdoch v Taylor:
If this provision has this wide meaning, an accused person with previous convictions, whose story contradicts in any material respect the story of a co-accused who has not yet been convicted, will find it almost impossible to defend himself, and if he elects not to give evidence his plight will be as bad.[58]
This problem, however, is connected to the question of whether the trial judge has or should have a discretionary power to exclude such evidence. If the correct view is that no such discretion exists, the law is unsatisfactory.
413. Discretion to Control Cross-examination of Accused by Co-Accused. There is an argument under the existing law whether the trial judge should have a discretion to prevent one co-accused from cross-examining the other about the latter’s conduct if the latter gives evidence against the former. The UK Criminal Law Revision Committee saw that this situation presents something of a dilemma:
In favour of the present rule is the strong argument, relied on in Murdoch v Taylor, that the accused (B) who gives evidence against the other (A) becomes, from A’s point of view, like a witness for the prosecution and that A would certainly have a grievance if he were convicted on the evidence of a person (B) whom he was not allowed to question in order to show that he was so bad a person that his evidence should not be relied on. On the other hand there might be a case for living a discretion to the court in order to enable it to do justice, as far as possible, in a case where A has, say, only one relevant conviction and B has twenty. Suppose A has given evidence that B committed the offence. B cross-examines A in order to show that A committed the offence and puts A’s single conviction to him. B may then refuse to give evidence himself, in spite of clause 5, but may call witnesses to say that A committed the offence. A cannot put B’s record to him, and it might be thought fairer that the court should be able to redress the balance by forbidding B to question A about his conviction.[59]
The NSW Law Reform Commission put another argument for the granting of such a discretion:
the meaning of the word ‘against’ adopted in Murdoch v Taylor is such that the law needs to be tempered by a discretion. In that case the House of Lords held that ‘evidence against’ a co-accused person was evidence which supported the prosecution’s case in a material respect or undermined the defence of the co-accused person. It was not necessary that the evidence should be given with hostile intent against the co-accused person. ... Given that this view is sound, and only Lord Reid went near doubting it in Murdoch v Taylor, it contains risks.[60]
Lord Pearce, who dissented on the discretion question in Murdoch v Taylor put two examples where a discretion would prevent injustice:
The first is where that defendant’s counsel has deliberately led a co-defendant into the trap, or has, for the purpose of bringing in his bad record, put questions to him in cross-examination which will compel him, for the sake of his own innocence, to give answers that will clash with the story of the other defendant, or compel him to bring to the forefront implications which would otherwise have been unnoticed or immaterial. The second type of situation is where the clash between the two stories is both inevitable and trivial, and yet the damage by the introduction of a bad record (perhaps many years previous) will in the circumstances be unfairly prejudicial.[61]
[1] See below, para 794-98.
[2] SA Saltzburg & KR Redden, Federal Rules of Evidence Manual 2nd edn., Michie Co. Charlottesville, Virginia, 1977, 147; RO Lempert & S Saltzburg, A Modern Approach to Evidence, West Publishing Co, St Paul, 1977. 230-1.
[3] JF Stephen, A Digest of the Law of Evidence, 4th edn, Macmillan & Co. London, 1893, 179.
[4] Michelson v US [1948] USSC 123; 335 US 469, 475 (1948).
[5] M Ladd, ‘Techniques of Character Testimony’ (1939) 24 Iowa L Rev 506.
[6] See Appendix C, para 167.
[7] JH Wigmore, A Treatise on the Anglo-American System of Evidence at Common Law, 3rd edn, Little Brown & Co, Boston, 1940, para 1986.
[8] Ladd, 510. See also Law Reform Commission of NSW, Working Paper, The Course of the Trial, Govt Printer. Sydney, 1978, para 8.33.
[9] Law Reform Commission of NSW, ibid.
[10] TF Green, ‘Relevancy and its Limits’ [1969] Ariz St LJ 533, 548.
[11] See People v Van Glaasbeek 198 NY 408, 418 (1907).
[12] Law Reform Commission of NSW, Working paper, Evidence of Disposition, Govt Printer, Sydney, 1978, para 2.11. See also Law Reform Commission of NSW, The Course of the Trial, para 8.33.
[13] See below, para 794-8.
[14] See below, paras 735-7.
[15] AA Bartholomew & KL Milte, ‘The Reliability and Validity of Psychiatric Diagnoses in Courts of Law’ (1976) 50 ALJ 450.
[16] [1956] USCADC 528; 252 F 2d 608, 617 (1957).
[17] WJ Curran, ‘Expert Psychiatric Evidence of Personality Traits’ (1955) 103 U Pa L Rev 999. 1013.
[18] GD Nokes. An Introduction to Evidence, 4th edn, Sweet & Maxwell, London, 1967, 140. See also RN Gooderson. ‘Is the Prisoner’s Character Indivisible’ (1953) 11 Cambridge LJ 377.
[19] cf R Eggleston, Evidence, Proof and Probability, 2nd edn. Weidenfeld and Nicolson, London, 1983, 71.
[20] See Appendix C, para 170.
[21] (1983) 57 ALJR 110, 115.
[22] [1952] 2 QB 911.
[23] id. 116.
[24] id. 121.
[25] See below. para 794-8.
[26] DW Elliott, ‘The Young Person’s Guide to Similar Fact Evidence—I’ [1983] Crim L Rev 284, 286.
[27] AP Ordover, ‘Admissibility of Patterns of Similar Sexual Conduct: The Unlamented Death of Character For Chastity’ (1977) 63 Cornell L Rep 92, 105.
[28] 377 A 2d 74, 79 DC (1977).
[29] ie. in cases where the accused claims consent.
[30] V Berger, ‘Man’s Trial, Woman’s Tribulation: Rape Cases in the Courtroom’ (1977) 77 Columbia L Rev 1, 55.
[31] id. 56.
[32] Ordover, 96.
[33] Criminal Law Revision Committee, England and Wales, Report of the Advisory Group on the Law of Rape, HMSO London, 1975, Cmnd 6352, 22.
[34] See below. para 799.
[35] (1977) 17 SASR 165, 174.
[36] 377 A 2d 74 (1977).
[37] W Eyre, ‘A Review of the Operation of Section 34i(2) of the Evidence Act 1929-1979’ (1981) (unpublished paper); L Newby, ‘Rape Victims in Court—The Western Australian Example in J Scutt, (ed) Rape Law Reform—A Collection of Conference Papers, Australian Institute of Criminology, Canberra, 1980, 115 (relating to earlier WA provision).
[38] See above, para 394, 396, 402. See below, para 794-8.
[39] See above, para 395.
[40] Federal Provincial Task Force of Canada, Report on Uniform Rules of Evidence, Carswell Co. Toronto, 1983, para 25.1.
[41] Law Reform Commission of NSW, Course of the Trial, para 8.21.
[42] See above, para 396.
[43] Law Reform Commission of NSW, Course of the Trial, para 8.33.
[44] Law Reform Commissioner of Victoria, Report No 5, Rape Prosecution (Court Procedures and Rules of Evidence) Govt Printer, Melbourne, 1976, para 60.
[45] J Bentham, Rationale of Judicial Evidence, 406; see Elliott, 359.
[46] JA Gobbo. D Byrne. JD Heydon. Cross on Evidence, 2nd Aust edn. Butterworths, Sydney, 1979, para 14.53 and cases there cited.
[47] R v Gun: ex parte Stephenson (1977) 17 SASR 165, 161-8. See also Zelling J (173-4): and Reynolds J in R v Zorad [1979] 2 NSWLR 764 (CCA).
[48] Eggleston. 77.
[49] Law Reform Commission of NSW, The Course of the Trial, para 8.7.
[50] Appendix C, para 182.
[51] See JB Weinstein & MA Berger, Weinstein’s Evidence, Matthew Bender, New York, 1982, 609.
[52] See generally, Criminal Law Revision Committee, England and Wales, Report No 11, Evidence (General) HMSO London, 1972, Cmnd 4991.
[53] PB Carter, Cases and Statutes on Evidence, Sweet & Maxwell, London, 1981.
[54] GL Peiris, ‘Law Enforcement and Protection of the Rights of the Accused: A Comparative Analysis of Modern Legal Systems’ [1980] Malayan L Rev 238, 272.
[55] Curwood v R [1944] HCA 40; (1944) 69 CLR 561, 577.
[56] The protection of the section is not lost where the cross-examination of prosecution witnesses relates to conduct in matters giving rise to the charge or its investigation or during the trial.
[57] See generally minority’s discussion, Criminal Law Revision Committee. para 130.
[58] [1965] AC 574, 582.
[59] Criminal Law Revision Committee, para 132.
[60] Law Reform Commission of NSW, Evidence of Disposition, para 5.31.
[61] [1965] AC 574. 587-8.
414. Absence of Rules in Civil Trials. There are no rules of evidence which control the admissibility or treatment of eye-witness identification evidence in civil trials. The Commission is not aware of any criticisms of this situation. There are probably few cases where identification of individuals is an important element of the case, and of those cases, few where there is a contest about identification. In a criminal trial there are additional powers available to the trial judge to control the admission and use of evidence against the accused.[1] These reflect, in part, a concern to minimise wrongful convictions. That concern may also explain why the courts attempt to control the admissibility and use of identification evidence in criminal trials but not civil trials.
415. A Cause of Injustice in Criminal Trials. Psychological evidence suggests that the accuracy of eyewitness identification in general and, in particular, eyewitness identification of strangers is subject to weaknesses and dangers additional to those that attach to eyewitness testimony generally.[2] Experience has shown such evidence to be a significant cause of miscarriages of justice.
416. Case Histories. A number of much publicised cases illustrate the serious danger of wrongful convictions and the need to revise our assumptions.
• English Cases
― Beck’s Case.[3] One of the most notorious English cases was that of Alfred Beck, who was picked out in identification parades by 12 women, served seven years and then was released. As the offences continued he was again picked out by four women in a line-up, was convicted and was awaiting sentence when the real culprit was finally apprehended. Beck’s case lead to the establishment of the English Court of Criminal Appeal in 1908.
― Slater’s Case.[4] Another notorious case was that of Oscar Slater who served 18 years for murder owing to a wrong identification. Two persons identified Slater as the man leaving the house after a murder, and 12 others identified him as having earlier kept watch on a house, but only after witnesses had seen him in custody before identifying him. Slater’s case led to the establishment of the Scottish counterpart of the Court of Criminal Appeal in 1926.
― Dougherty’s Case.[5] In 1972 Luke Dougherty was charged with shoplifting after two witnesses independently picked out his photograph from a police album and identified him as one of team of shoplifters. He was also identified in the dock during the trial. Although he had an alibi, and no trace of either accomplice was found, Dougherty was convicted and sentenced to 15 months imprisonment. The sentence was affirmed on appeal. Whilst serving his sentence, Dougherty’s case was taken up by ‘Justice’, an association of lawyers concerned with the fair administration of justice. Acting on a submission from Justice the Home Secretary, exercised his power to refer the case to the Court of Appeal for further consideration. The Court ordered Dougherty’s immediate release on bail, and ultimately quashed his conviction.
― Virag’s Case.[6] In 1969 Laszlo Virag was charged with thieving from parking meter coin boxes, using a fire arm to resist arrest and wounding a police officer with intent to cause grievous bodily harm. Of 14 witnesses, eight identified Virag in a line-up; five of these eight were police officers. Three witnesses picked out someone else and the remaining three made no identification. Identification evidence was the only evidence led against him. One police officer testified in court that ‘his face is stamped on my memory’. Although Virag had an alibi, did not drive a car—the culprit had been involved in a car chase with police—and smoked a brand of cigarettes different from the brand smoked by the culprit, he was convicted and sentenced to ten years in prison. Whilst Virag was in prison, a second man was arrested and charged with thieving from parking meters. Further investigations indicated that it was he who had committed the earlier offences. Virag received a pardon. As a result of the wrongful convictions of Dougherty and Virag the Devlin Committee on evidence of identification in criminal cases was established.
― Metropolitan Police Officer. In one case where a member of the Metropolitan police attempted to intercede for a neighbour of unblemished character who was charged by the City of London Police on implausible identification evidence, the result was that he himself was put on parade, wrongly identified and immediately suspended from duty as being under suspicion of being concerned with the same offence.[7]
― Other English Cases. Glanville Williams, when commenting on the Devlin Report on English identification procedures noted that:
Neither the Beck case at the turn of the century nor the many miscarriages of justice since then have sufficiently impressed those concerned with criminal justice of the dangers of identification evidence. To mention some of the instances in late years: three occurred alone in the space of a few months in 1967-68. A memorandum of the National Council of Civil Liberties published in 1968 gave details of 15 cases from 1966 onwards; in most of these a person was convicted on identification evidence and the mistake was either established or very likely; in a few of them the defendant had not gone beyond being committed for trial when by a happy accident the mistake was discovered. A memorandum later in the same year from Justice instanced another six cases and others have occurred since. In all of them the mistake came to light in some fortuitous way as by the real offender coming forward and confessing.[8]
• US Cases
Numerous cases of misidentification have been catalogued in the United States, also.
― Webb’s Case. David Webb spent ten months in a Washington state penitentiary in 1978. He was convicted of rape, attempted rape and attempted robbery. Webb had been arrested for these crimes in the first place because he resembled a composite picture of a rapist constructed after the crimes. Eyewitnesses at his trial identified Webb as the man who had raped one of them and attempted to rape and rob the other in separate incidents in two grocery stores in Everett, Washington. Despite some inconsistencies in the testimony of the eyewitnesses and despite the testimony of alibi witnesses, Webb was convicted and sentenced to up to 50 years in prison. Months later, another man confessed to the crimes for which Webb had been convicted. Both Webb and the man who confessed were placed together in a line-up. According to newspaper reports, the victims could no longer identify Webb as the man who assaulted them. On his release, Webb commented ‘I don’t think he looks like me at all’.[9]
― Boyd’s Case. Gregory Boyd vas ordered to stand trial after two gas station attendants identified him as the man who held them up. Boyd, who could not remember where he was on the night of the robbery, spent nearly a month in a Detroit county gaol before his trial began. While in the stand, Boyd remembered, and announced that he had been in prison on the night of the holdup. Probably no better alibi exists; the case was promptly dismissed.[10]
― Schrager’s Case. Misidentifications are not confined to those with a police record. In early 1973, Assistant District Attorney William Schrager was arrested in connection with a series of sexual assaults. He was put in a number of line-ups, and to his horror was identified by four different women. Schrager was later released when a similar looking postman who weighed 40 pounds more confessed to some of the crimes.[11]
• Misidentification where Suspect known to Witness. The Devlin Committee[12] referred to the following cases:
A witness to a smash and grab raid identified one of the offenders as a man known to him by his nickname for about five years, and claimed to have confirmed this recognition when he got a half view of the man’s face in the course of the chase that followed. The accused was acquitted at a re-trial when further alibi evidence was called. (Case of W, 1964).
A garage attendant who was the victim of an assault said that just before the attack, he thought he saw X whom he knew well by sight, standing at a nearby bus shelter. He subsequently positively identified X as his assailant, saying ‘When he came towards me I recognised him as X himself ... whilst I was being attacked I saw the face of the person attacking me. t recognised that face. It was Mr X.’ X was granted a Free Pardon when another was found reliably to have confessed to the offence. (Case of X, 1969).
A police witness to a daylight burglary claimed to recognise one of the participants two days later as a man known to him for some years by name and sight. It subsequently transpired that the witness had known the accused only by sight. He was granted a Free Pardon when another was found reliably to have confessed to the offence. (Case of Y, 1962).
One of the officers who stopped a lorry which contained stolen butter said that as the lorry approached he had recognised the accused as the driver, but subsequent inquiries revealed that he had not seen the man he identified before the time of the offence. The conviction was quashed when further evidence substantiated the accused’s alibi. (Case of Z, 1949).
• Australian Cases. The Commission has not investigated police and prosecution records. However, a recent case of notoriety was the case of Joey Hamilton (1975-76) where a false identification appeared to have resulted in a wrongful conviction.[13] In another Victorian case a man named McMahon was committed for trial on a charge of the murder of a young girl. The evidence against him was largely that of his identity with the man seen in the company of the girl at the relevant time. After committal but before trial, Mr Book KC, the Senior Prosecutor for the King, went to Leeton (NSW) to make inquiries concerning the prisoner’s alibi, and satisfied himself of its substance, whereupon a nolle prosequi was filed. Some years afterwards Arnold Sodeman, who was executed in 1936 at the Coburg (Vic) gaol for a similar crime, confessed to the murder in question.[14]
417. The Law. While the courts have acknowledged that eyewitness identification can be unreliable and some of its forms prejudicial, the only protections provided at the trial comprise:[15]
• it discretion to exclude prejudicial evidence;
• it discretion to warn the jury of the dangers of identification evidence—the content and limits of which are unclear;
• it discretion in some jurisdictions to direct an acquittal where, for example, the identification evidence is suspect and the identification is not supported by other evidence.
418. Assumptions. It will be for the accused to persuade the trial judge to exercise those powers. The form of the controls suggests an assumption that eye-witness identification evidence is not qualitatively different to other eye-witness evidence. They also imply an assumption that the participants in the criminal trial—prosecutor, defence counsel, accused and judge or magistrate will generally have an adequate understanding of the factors that render eye-witness identification inadequate. These assumptions are not warranted.
419. The Processes Involved. The recording of a mental image is quite different from making a photographic record. Unlike a photograph, a recollection may change over time. The ephemeral nature of a mental image was recognized by Justices Evatt and McTiernan in Craig v R[16] where they analysed the elements which underly an assertion by a witness that he recognises a particular person. In a joint judgment they stated:
An honest witness who says ‘the prisoner is the man who drove the car’ whilst appearing to affirm a simple, clear and impressive proposition, is really asserting:[1.] that he observed the driver;
[2.] that the observation became impressed upon his mind;
[3.] that he still retained the original impression;
[4.] that such impression has not been affected, altered, or replaced ...
[5.] that the resemblance between the original impression, and the prisoner is sufficient to base a judgment, not of resemblance, but of identity.
Psychological research reveals that each of the stages listed by Justices Evatt and McTiernan is subject to factors which can weaken the value of the final identification.
420. Sources of Unreliability. Observation and impression on memory. The evidence is subject to the weaknesses that attach to all eyewitness testimony. In the initial stage of observation and its impression upon his mind[17] there are said to be two types of factors which may affect a witness’ ability to perceive accurately: event factors and witness factors.
• Event Factors.[18] Event factors include such factors its exposure time, the number of opportunities that an individual has to perceive particular details, the salience or importance of particular details, and the type of fact which is registered in the first place. Some event factors will make it less likely that the original observation is accurate. For example, the witness may have had only a fleeting glimpse of the criminal’s face or seen it under bad conditions of light or weather for observation. In one case where a misidentification was accepted, the girl testifying had seen the offender only by the light of the moon.[19] Alternatively, the witness may have been a considerable distance from the suspect or had his view interrupted by passing traffic or a group of people. The amount of violence involved in an event is another factor which will affect whether the eyewitness observes it and reports it accurately in the first place.
• Witness Factors.[20] These refer to factors which are inherent in the witness himself. They include the person’s ability to cope with stress—a person’s perception will be affected by the extent of his fear or stress while making the observation.
Stress is a particular problem. After a stressful scene, a person may ignore visual input from any subsequent observation while concentrating on the past event. The extent of the witness’ interest and motivation may also be important. So too may his personality—people low in anxiety are better in the identification of faces than are highly anxious people.[21] A relevant experiment was staged by Robert Buckhout at the California State University. A student attacked a Professor in front of 141 witnesses. The entire incident was videotaped. Sworn statements were taken from each witness which included descriptions of the suspect’s appearance and whatever they could remember about the incidents. The descriptions were inaccurate. Weight estimates for the attacker were on average 14 per cent too high. Age was underestimated on average by more than two years. The average total accuracy score was only 25 per cent of the maximum possible score. Seven weeks afterwards, the witnesses were presented with two sets of six photographs. In one, all the faces shown were full frontal views of heads. In the other, however, the person who had done the attack was shown with his head to one side and tilted back with an expression of a smile or a leer. One group was asked if they recognised anybody. The other group were reminded of the attack incident and asked if they could find the attacker in one of the two arrangements. 40 per cent of the witnesses identified the suspect correctly and 25 per cent of them identified an innocent bystander instead. The professor who was attacked picked out the innocent bystander. In another study, a purse snatching incident was staged in the classroom. The witnesses were given questionnaires and achieved the usual bad scores on their recollection of the incident. Having attempted the recall task, the witnesses were then given a lineup with the actual purse snatcher in the group. They were also given a lineup that included a person who looked like the purse snatcher but did not include the actual purse snatcher. Of the 52 witnesses, 14 made a correct identification of whom 7 also identified the person who looked like him, 19 identified another person, 7 identified the person in the second line up, 2 identified 2 other wrong persons, and 10 failed to make any identification.[22]
Stress can limit what is perceived. A person may stop looking at an object if he finds it stressful or upsetting to do so. A threat to a person may produce a narrowing of selection of matters observed. The reaction to such stimuli may take the form of ‘inattentiveness’ (hoping the danger will go away) or other different defensive reactions.[23] Some studies have suggested that rigidity resulting from threat and fear can produce decreased efficiency in intellectual and visual search tasks.[24] There is also evidence to suggest that stress and fear accompanying an event will result in inaccurate perception.[25] The amount of time perceived as going by is overestimated where a witness is in a condition of danger and the overestimation tends to increase as the stress increases. People overestimate the distance they have travelled when they are in danger. As threat and fear increase individuals see themselves as travelling further and taking longer to complete the distance.[26] In Munsterberg’s famous experiment in which he pre-arranged a fight in the classroom culminating in the firing of a shot, there were considerable variations in accounts of the incident written immediately afterwards. Those most upset by the episode were the least accurate. Those who were totally unaffected were somewhat more accurate, and those who were moderately involved emotionally were the most accurate. This phenomena has been studied further and is known as the ‘Yerkes—Dodson law’.[27] In another experiment, it was found that subjects were less accurate in their perception of a violent event as opposed to a non-violent one.[28] It is found that there is level of arousal or stress beyond which the performance of the person will deteriorate. Most crimes of violence will be beyond the optimum.[29]
421. Sources of Unreliability—Distortion of Memory. What gives eyewitness testimony its particular weaknesses are the processes followed in the investigation processes of crimes. Inevitably the eyewitness receives information about the events and suspect. This has a serious potential for distortion of memory. A number of factors have been identified:
• Expectations. We tend to recall what we expect should have happened. An example is the experiment relating to the meeting of psychologists and the recollection afterwards of what people said.[30] For example, people reported colleagues as making a remark which they knew particular colleagues habitually made.[31]
• Self-Centred Biases. We apparently tend to over-emphasise our contribution to a particular task—the extent to which we contributed to a conversation, the extent to which we carry responsibility in the household. The same egocentric concentration has a way of making us think of ourselves in a gradually more and more favourable light. For example, while we may be reasonably accurate about neutral items like whether we own a telephone or a motor car, we tend to exaggerate our answers in questions which may reflect favourably or unfavourably upon us—for example contributions to charities or our level of income at some date in the past[32] the belief that a light was green when we crossed the intersection is supported by the expectation that we could not have gone against a red light because we always have stopped at red lights.[33] The need to make our recollection consistent and probable and harmonious causes us to fill gaps and repress information that will create conflicts.[34]
• Motivations. Motivation will also play a role. For example, a victim is in a hostile state eager to find the likely object for his hostility. This may cause the victim to identify a person who is not responsible for the crime.[35] In an identification situation, there is also pressure to remember which can cause incorrect recollection to be produced—the desire to be correct, observant, helpful, not appear foolish.[36]
• Post Event Information. The memory for a face or an event may change. Often after witnessing an important event, one is exposed to new information about it. For example, a person sees a motor vehicle accident and then learns from the newspaper that the driver of the car had been drinking before the accident. Or one witnesses an argument between two people and then overhears a friend tell a third person all the details of the argument. Evidence has been accumulating to indicate that post-event experiences such as exposure to newly released information can dramatically affect our memory of the original event.
― Bird.[37] Bird in 1927 provided an early example. During the course of a routine classroom lecture, the instructor was discussing results of a series of experiments. A well-meaning but not very thoughtful reporter on the local newspaper printed an account of the lecture that was riddled with errors. Many of the students read the newspaper account, and nearly all thought it was an accurate report. The instructor gave an exam at the end of the week and after the usual set of exam questions he asked each student to indicate whether or not the student had read the press account. Those who had read the article made many more errors on the exam; they remembered the erroneous information that was in the newspaper assuming that they had learned it from the instructor’s original lecture.
The same sort of thing occurs when witnesses to an event may read or hear something about it and are subsequently asked to recall the event. Post-event information can not only enhance existing memories but also change a witness’ memory and even cause nonexistent details to become incorporated into a previously acquired memory. As Loftus[38] points out, it is quite common for witnesses to a serious event to discuss the event after it is over. For example, the thieves leave the grocery store and one girl on the check-out says to another, ‘did you get a look at the guy with the green hat?’ Assuming that one of the thieves actually was wearing a green hat, what are the consequences of the first person’s remark for the second person’s memory? As it turns out, this remark can increase the likelihood that the second person will also claim to have seen the green hat.
― Loftus.[39] This was demonstrated in an experiment by Loftus in 1975. Subject witnesses were shown a film of a multiple car accident in which one car after failing to stop at a stop sign, made a right hand turn into the mainstream of the traffic. After the film 75 subjects were asked: how fast was the first car going when it ran into the stop sign? A second question was: how fast was the first car going when it turned right? This second question was asked of a different 75 subjects. All one hundred and fifty subjects were then asked another nine questions. The tenth question which was identical for all subjects asked whether the subject had actually seen a stop sign for the first car. If the earlier question had mentioned a stop sign, 53 per cent of the subjects reported later on that they had seen a stop sign. However, if the earlier question had not mentioned a stop sign, 35 per cent of the subjects claimed to have seen the stop sign when asked subsequently. Thus, by simply mentioning the existing object it is possible to increase the likelihood that it will be recalled later on. Loftus has also found significant errors in the descriptions of persons by eyewitnesses where misleading information has been given to them.[40]
• Conflicting Port Event Information.[41] What will happen when a witness sees some event and later learns a piece of new information which conflicts with some aspect of what was previously seen? It appears that when possible, many witnesses will compromise between what they have seen and the information received subsequently.
― Loftus. Students were shown a video tape which involved an interruption in a professor’s lecture by a noisy group of eight demonstrators. At the end of the video tape the subjects were asked 20 questions. Half of the subjects were asked a key question: ‘was the leader of the four demonstrators who entered the classroom a male?’ The other half were asked ‘was the leader of the 12 demonstrators who entered the classroom a male?’ One week later all subjects returned to answer a new set of questions. The critical question at this time was, ‘how many demonstrators did you see entering the classroom?’ Those subjects who had previously been asked the ‘twelve’ question reported having seen an average of 8.9 people when questioned one week later, whereas the subjects interrogated with the ‘four’ question recalled an average of only 6.4 people. When the individual responses were examined, it was noted that most subjects tended to compromise between what they had actually seen, namely eight, and what they had been told later on—four in one case, twelve in the other.
• Introducing Non-existent Objects.[42] When estimating the number of people, or when recalling colours, witnesses can readily compromise between what they actually saw and what they were told. With other things, however, such compromise is not easy. For example, where a witness saw a car speed through a stop sign and later learned that the traffic sign was actually a yield sign, it would probably be the unusual witness who could come up with some compromise sign; most would stick with the stop sign that they actually saw or decide upon the yield sign that they learned about later on. In fact this is what people tend to do. That non-existent objects can become incorporated into people’s memories, has been observed by many investigators:
― Lesgold & Petrush.[43] For example, two psychologists, Lesgold and Petrush in 1977 conducted a study in which 99 subjects saw a series of slides depicting a bank robbery. Every slide was accompanied by a narration of approximately 60 words which tied the slides together so that the subjects definitely felt as if they were experiencing a unified event. In each slide there was one detail (such as an alarm button) that was either present or not present.
Following the slides, a series of questions was asked, some of which mentioned the existence of the key objects and others which did not. Finally, all subjects were given the names of the key items, and some extra items and were asked to indicate whether each item had actually been seen. The two psychologists found that simply mentioning a non-existent object after the bank robbery slides had long since been viewed was sufficient to increase the likelihood that subjects would think they had seen the object.
• Unconscious Transference.[44] There is a recognised phenomenon in which a person seen in one situation is confused with and re-called as a person seen in a second situation. This phenomenon of ‘unconscious transference’ is of particular significance for eyewitness identification. For example, a ticket agent at a railroad station who was held up at gunpoint subsequently recognised a sailor in a line-up as the culprit. The sailor had an ironclad alibi, however, and was eventually released from custody. The ticket agent, who was later interviewed in an attempt to determine why he had misidentified the sailor, said that when he saw the sailor in a line-up, his face looked familiar. As it happened, the sailor’s base was near the railroad station and on three occasions prior to the robbery, he had purchased tickets from this agent. It appears, then, that the ticket agent mistakenly assumed that the familiarity related back to the robbery when it undoubtedly related back to the three times the sailor bought train tickets.
An unconscious transference took place, since the person who bought the tickets was confused with and recalled as the person who committed the robbery. This phenomenon has been investigated.
― Loftus.[45] In an experiment designed to investigate unconscious transference Loftus in 1976 presented 50 students with a tape recorded story concerning six fictitious college students. An introduction of each character was accompanied by a photograph of that character presented for approximately two seconds. Only pictures of white males, with medium length brown hair and no glasses, were used. After three days the subjects attempted to identify the criminal in the story from a set of five faces presented to them. For half of the subjects, the criminal’s face was not among the five, but the face of an incidental character in the story was included. The experiment was designed so that one particular photograph showed a criminal for some subjects, showed the incidental character for other subjects, and was ‘only in the identification set’ for still other subjects—that is he was not one of the six students in the story.
Of particular interest was the data obtained from the subjects who were tested with an identification set that did not include the face of the criminal but did include the face of an incidental character. Of those subjects, 60 per cent chose the incidental character, 16 per cent chose a different, incorrect man, and 24 per cent refused to make a choice. If the tendency to pick the incidental character was no greater than the tendency to pick one of the other non-culprits, then 20 per cent of those who made a selection should have picked the incidental character. In fact, 79 per cent of those making a selection picked the incidental one.
Loftus explains this phenomenon in the following terms:
Unconscious transference is a by product of the integrative, malleable nature of human memory. it appears that a brief exposure to a person can cause that person to look familiar when he is seen later. For example, an incidental character seen prior to a crime will be familiar to a witness who is attempting to identify the perpetrator of a crime from a set of photographs. The character looks familiar and his familiarity is interpreted as being due to the perception at the time of the crime when in fact the familiarity is due to an observation made at a time prior to the crime. The familiar trace of the incidental character becomes integrated into the witness’ memory for the crime.[46]
Unconscious transference may take place when the witness identifies the prisoner in the line-up. A person whose photograph has been seen before will look familiar. This familiarity may be mistakenly related back to the crime rather than back to the photographs where it probably belongs. The chances of a mistaken identification rise dramatically in these situations, and so such line-ups have been referred to as ‘photo-biased line-ups’.
― Brown & Colleagues.[47] A study showing the dangers of viewing a photograph during the interval between an incident and a line-up was conducted by Brown and Colleagues in 1977. In one of their experiments subject-witnesses viewed two groups of five ‘criminals’ who were total strangers for 25 seconds each. The subjects were told to scrutinize the criminals carefully since they might have to pick them out from mugshots later that evening and from a line-up the following week. About an hour and a half later the subjects viewed 15 mugshots, including some people who were ‘criminals’ and some people who were not. One week later several line-ups were staged and the subject were asked to indicate whether each person had been seen at the original ‘crime’ scene.
The results were dramatic. Of the persons in the line-up who had never been seen before, 8%o were mistakenly ‘identified’ as criminals. However, if a person’s mugshot had been seen earlier, his chances of being falsely identified as one of the criminals rose to 20%. None of these people had committed a crime or had ever been seen in person before, but were now ‘recognised’ in the line-up because their photograph had been seen.
In a second experiment in this series, subject-witnesses viewed the criminals under conditions in which they did not think they would have to remember them—the criminals were the people who handed out the mid-term examinations taken by all students in a class. As in the previous study, subject-witnesses looked at mugshots two or three days later and then witnessed line-ups about four or five days after the mugshots were seen.
The results were even more dramatic: 18 per cent of the persons in the line-up who had never been seen before were mistakenly identified. However, if a person’s mugshot had been seen in the interim, this percentage rose to 29 per cent. Both of these experiments show clear evidence of mugshot-induced biases.
• Effect of Giving Description. Loftus suggests that the description a witness gives to the police may affect his memory of the person he is trying to identify.[48] She illustrates this point by referring to the case of R v Shatford. Shatford was accused of being one of two men who robbed a department store of $7,000. The cashier who was robbed remembered little about the criminals except that they were very neatly dressed and rather good looking and they looked enough alike to be brothers. Three days after the robbery, she and several other witnesses spent over six hours with a police artist drawing a composite picture of the suspects. She did not remember much about their physical characteristics and so could not add much to the drawings, but still she was able to pick the accused out of a line-up consisting of 12 persons. Loftus asks:
How could the witness be so vague and uncertain about her description, and yet pick out the accused from the line-up’? Doob and Kirshenbaum argued that she was able to do this because she remembered the partial description she had made to the police: that the culprits were neatly dressed, looked like each other and were rather good looking. Being neatly dressed and looking like each other are two pieces of information that are not particularly useful in picking out one man from a set of twelve neatly dressed men. But the fact that the culprit was recalled as being rather good looking could have been used as a clue. If the-witness recalled this description, she might simply have picked from the line-up the person who best filled this description.
Doob and Kirshenbaum interviewed other people who had not witnessed the crime, and these people rated the suspect as the most attractive person in the line-up. Thus, the investigators’ contention that the cashier in the robbery case simply remembered her partial description and then picked the best-looking man in the line-up seems quite reasonable.[49]
Furthermore, when a witness constructs a composite photograph or identikit picture of a suspect, this too can affect the accuracy of subsequent in-person line-up identification.
― Hall and Ostram.[50] In this study, subjects were presented with a facial photograph and were later asked to try to identify the person from a line-up. However, during the interval between the exposure to the face and the line-up some subjects worked with an artist to create a composite drawing of the person whose face had been viewed before. The results indicated that the subjects who had made composite drawings made more errors at a subsequent line-up than did subjects who had not. The former group averaged 50 per cent errors while the latter group averaged only 31 per cent errors. These line-ups resulted in errors irrespective of whether the person to be recognised was present in the line-up or not.
• The Process of Identification. The final step in the identification process is to assert not resemblance but identity. It is a comparatively simple matter to state that a person looks like someone whom one has seen previously. It is much more difficult to positively identify him as the same person. The process is affected by racial characteristics—people are better at recognizing faces of persons of their own race than a different race.[51] Another major problem is that the assertion of a mere resemblance becomes confident identification. It is common practice for witnesses to a robbery to attend a five or six person line-up and to be asked to indicate whether they recognise the person who committed the robbery or whether anyone in the line-up resembles that person. When a witness responds with a statement such as ‘I am not really sure, but number five sort of looks like him’, the witness is giving a response that is obviously closer to a guess than to a confident report. Unfortunately, this guess has all too often graduated over time to the standing of a confident observation. Loftus states that:
Guessing can be dangerous. When a witness is uncertain, guessing can fill gaps in memory. Later, when searching his memory, a witness may incorrectly ‘recall’ something that had earlier been merely a guess but is now part of memory. Furthermore, while an initial guess may be offered with low confidence, later, when the witness mistakes the guess for a real memory, the confidence level can rise. This seems to occur because a witness is now ‘seeing’ an item that he himself has constructed in memory.[52]
― Hastie and Others.[53] In the first experiment in a set of studies designed to explore these phenomena, Hastie and his colleagues showed undergraduates a slide show depicting a street scene which involved four actors in a simulated mugging: a thief, a victim, and two bystanders. The show included 25 slides and was displayed at a two second rate so that the entire series lasted about one minute. After a short intervening activity subjects were presented with a booklet containing a number of questions about the slide show. They were asked about particular objects, including such questions as: What was happening in the street scene? What were the motives of each of the characters? What do you think happened in the scene after the slide show was finished? One group of subjects was told that if they could not remember a particular detail, they should answer the question anyway, guessing if they had to. Another short activity was presented, and finally the subjects’ memories were tested. They were asked questions about details from a slide show, such as ‘was the male bystander wearing glasses? Yes or No? ‘What colour was the victim’s coat? Black, green, or brown?’ For each question they were encouraged to say ‘I don’t know’ if they had no memory. Guessing was discouraged.
Subjects who had guessed on the earlier test were significantly less accurate on this final test than were subjects who had not guessed on the earlier test. Subjects who had guessed earlier were less likely to use the ‘I don’t know’ response category and more likely to produce an error by giving an answer that was simply wrong.
Another important cause of error is that transitory features and even features external to the object or person also seem to play a part in the recognition decision.[54] An important factor is the context within which the person is seen—clothing, activity and other external factors can affect the identification process. This has been the subject of considerable research.[55] Two conclusions are of particular relevance. Firstly, from the recognition studies it has been concluded that, for optimal recognition performance, the contextual elements should be reinstated at the time of testing.[56] However, conclusions drawn from the recognition studies are not easily implemented in identification parades. While reinstatement of original context leads to a massive improvement of identification of the target persons, it is also the case in this experiment that there is an increase in false recognition of innocent persons. Although this increase in false recognition is considerably smaller than the increase in correct identification, it is a significant one. Secondly, there is a very grave risk of an individual in an identification parade being identified wrongly on the basis of wearing, for example, similar clothes, particularly if the person is the only one in the identification parade wearing clothes similar to that of the offender. Therefore all members of the line-up should be dressed in similar clothing.[57]
422. Failure to Impose Adequate Controls. The psychological research and miscarriages of justice point to eyewitness identification evidence as a potentially serious cause of a wrongful conviction. This is a matter of major concern in a system which has as a basic premise the proposition that wrongful convictions should be minimised. There have been numerous cases where people have been wrongly convicted on the basis of inaccurate eyewitness testimony. One psychologist has examined a number of these cases and catalogued various factors that highlight and compound the problem of erroneous identification. He has concluded that on occasions, suspects have been erroneously identified by more than one witness. Trained observers, including policeman, are at times in error. People have identified suspects who do not resemble the actual guilty party. Furthermore, even the most positive identification may be wrong. Perhaps the most surprising discovery is that relatives and close friends have erroneously identified suspects.[58]
423. Eminent judges and jurists have spoken of the dangers of identification evidence. In October 1974, Lord Justice Scarman in the Court of Appeal spoke of the vexed question of how the court should deal with identification evidence and added later: ‘We all know there is no branch of human perception more fallible than identifying a person’.[59] The Lord Chief Justice in an address to the Magistrates’ Association in October 1974 referred to it as ‘perhaps the most serious chink in our armour’.[60] Sir Norman Skellhorn, the English Director of Public Prosecutions called it ‘The Achilles heel of British justice’.[61] The report into the case of Alfred Beck stated that ‘evidence as to identity based on personal impressions, however bona fide is perhaps of all classes of evidence the least to be relied upon and therefore unless supported by other facts an unsafe, insufficient basis for the verdict of a jury’.[62] As Lord Gardiner stated in the House of Lords:
The danger of identification is that anyone in this country may be wrongly convicted on the evidence of a witness who is perfectly sincere, perfectly convinced that the accused is the man they saw, and whose sincerity communicates itself to the members of the jury who therefore accept the evidence.[63]
English courts have, as a result of this concern and in response to the Devlin Report, significantly tightened their control over trials involving eyewitness identification testimony. Australian courts have not done so.
424. Reluctance to Use. A reading of reported Australian cases leaves the impression of a reluctance on the part of trial judges to exclude eyewitness identification evidence, however unreliable or weak it may seem. Instead reliance is placed on the warning to the jury and appellate courts give lengthy statements about the appropriate detail of such warnings.[64] So, even evidence of identification which is so liable to being mistaken that it would be ‘extremely dangerous for a jury to assign any probative value to it’ may be properly admitted so long as a warning is given to the jury in such terms.[65] A particular area of concern is the failure of the courts, despite their public criticism of the practice, to develop a satisfactory framework for dealing with photo-identification obtained after a suspect was in custody. The psychological research points to the desirability of conducting a parade where a suspect is in custody. The High Court has stressed the desirability of doing this. But it is still not done though it would be possible.[66] Courts play down the prejudicial effect of evidence of identification evidence based on police photographs.[67]
425. Lack of Expertise. For the discretions to operate satisfactorily, lawyers and judicial officers must have an expertise in assessing the probative value of such evidence. It is suggested that this cannot be assumed. Few lawyers have a detailed knowledge of the psychological research that has done in the area. We lack a complete awareness of the true extent and nature of the weaknesses of such evidence. This is not helped by the opinion evidence rules which would prevent expert testimony being given. While a study of reported cases shows an awareness of and an increasing concern about the dangers and possibilities of error in identification evidence, a close analysis of them suggests that we still lack a complete awareness of the problem.[68] A study of these cases suggests that we underestimate or, at times, overlook the effect of post-event information—the effect of a partial observation of the accused, observing photographs, preparing identikit pictures, and repeated viewings of a ‘wanted’ photograph. A study of such cases also suggests that we underestimate or overlook the importance of the phenomenon of unconscious transference. Take for example the following passage:
The discretion to reject admissible evidence of identification requires an evaluation by the trial judge of’ the probative force which a jury might reasonably attribute to the evidence if it be admitted (R v Christie [1914] UKLawRpAC 20; [1914] AC 545, 559). The circumstance which was relied on as depriving the challenged evidence of probative force was the supposed predisposition of Colonel Singh to identify at the parade a person whose photograph had been shown to him that day. Although the appellant’s photograph had been shown to Colonel Singh together with others, his was the only face to be seen in both the photographs and the identification parade. And thus, so the argument runs, the risk of a subconscious disposition to identify the features common to both displays makes the evidence of the identification parade dangerous to place before the jury. Such evidence, it is said, was highly prejudicial, but so unreliable as to be without probative force. That there was an arguable risk of a subconscious disposition to identify the appellant may be allowed for the purpose of the present discussion, but the risk was not so grave that the admissible evidence of identification should have been withdrawn from the jury.We agree in the estimate which the learned trial judge made of the range of opinions to which the jury might properly come if left to consider in isolation the weight of the evidence as to the identification parade. They were entitled to give that evidence great weight or little weight, according to their opinion of the opposing arguments. It should not be forgotten that Colonel Singh had seen his assailant in the ‘twilight’ of the bedroom (though the assailant then had some material over part of his face), in the rear vision mirror of the car, and from various angles in the course of the struggle in the car when light was reflected from the tree in front. It would be erroneous exercise of discretion to reject evidence on the ground that a jury might reasonably give different weight to challenged evidence from the weight which the judge would give it. In the circumstances of the present case, the probative effect of this evidence was pre-eminently a matter for the jury, and it was right to leave evaluation of the evidence to them.[69]
The results of the above research demonstrate that the risk was not arguable—it was real and grave.
426. Danger of Misestimation. There is a tendency to accept eyewitness identification too easily.[70] Although most lawyers, laymen and judicial officers may have a general idea that identification evidence can be suspect they would not have a detailed understanding of why this is so. When a witness stands up in court and confidently identifies the accused or when evidence is given that the witness said ‘That’s the man’ at an out of court identification parade, such evidence has tremendous force no matter whether photo-detection had been used beforehand or the accused was on his own when identified. Attempts have been made to explore the impact of identification evidence:
• Loftus. Subject jurors were given the following general description of the crime:
On Friday, November 12, 1970, Mr X, owner of a small grocery store, was confronted by a man who demanded money from the cash register. Mr X immediately handed $110 to the robber, who took the money and started walking away. Suddenly, and for no apparent reason, the robber turned and fired two shots at Mr X and his five-year-old granddaughter, who was standing behind the counter. Both victims died instantly. Two-and-a-half hours later the police arrested a suspect, who was charged with robbery and murder.
The subject-jurors were then presented with the following arguments from the prosecution:
The robber was seen running into an apartment house—the same apartment house in which the defendant lived; $123 was found in the defendant’s room; traces of ammonia used to clean the floor of the store were found on the defendant’s shoes; and paraffin tests, used to determine whether a person has gunpowder particles on his hands from firing a gun, indicated that there was a slight possibility that the defendant had fired a gun during the same day.
From the defence the jurors learned that the defendant took the stand in his own behalf and claimed that he did not commit the crime, that the money found in his room represented his savings from a two-month period, that the ammonia tracings could have been obtained at a different place since he worked as a delivery man, and that he had never fired a gun in his life. ...
Of the fifty jurors, only 18 percent judged the defendant to be guilty. However, for fifty new jurors we added an additional piece of prosecution evidence: a store clerk’s testimony that he saw the defendant shoot the two victims. Of the fifty jurors who received the second ‘eyewitness’ version of the case, 82 per cent judged the defendant to be guilty.
In a third version of the case with fifty other jurors the defence attorney discredited the eyewitness by showing that the witness had not been wearing his glasses on the day of the robbery, and since he had vision poorer than 20/400, he could not possibly have seen the face of the robber from where he stood. Of the jurors who heard about the discredited witness, 68 percent still voted for conviction, in spite of the defence attorney’s remarks. This result suggests that jurors give eyewitness testimony much more weight than other sorts of evidence when reaching a verdict.[71]
• Tversky and Kahneman (1977). Loftus summarised their research as follows. Subjects were presented with the following problem:
A cab was involved in a hit-and-run accident at night. Two cab companies, the Green Cab Company and the Blue Cab Company, operate in the city; 85% of the cabs in the city are green and 15% are blue. A witness identified the cab as a blue cab. The court tested the witness’ ability to identify cabs under the appropriate visibility conditions. When presented with a sample of cabs (half of which were blue and half of which were green), the witness made correct identification on 80 percent of the cases and erred on 20 percent of the cases. Question: What is the probability that the cab involved in the accident was blue rather than green’?
The several hundred subjects who were given various versions of the problem answered that the probability was about 80 per cent. In this particular version, even though there were many more green cabs, people still thought it was much more likely that the cab was blue. Apparently, they trusted almost totally the witness’ report and largely disregarded objective information about the percentages of blue and green cabs. When these percentages were changed, people still based their answers on the witness’ credibility rather than on the relative frequency of blue and green cabs. ... For example, if the witness was tested and found to be correct in 60 per cent of the cases, people would answer 60 per cent; if the witness was correct in 30 per cent of the cases, people would answer 30 per cent, and so on.[72]
• Wall cites a number of instances in which jurors themselves have been asked after the trial what they thought of the eyewitness testimony. From these cases Wall concluded that juries are often unduly receptive to evidence of identification. One of his examples was the case of Sacco and Vanzetti. The prosecution introduced some eyewitness testimony that one would have thought would be too weak to take seriously, but which impressed some jurors. A witness, Mary Splaine, claimed to have seen the Braintree murderers riding in a car which passed no closer to her than sixty feet and which she had in view only for the period of time it took the car to travel fifty or sixty feet. Despite these difficult conditions, she positively identified Sacco, and her testimony was most detailed:
Q. Can you describe him to these gentlemen here’?
A. Yes sir. He was a man that I should say was slightly taller than I am. He weighed possibly from 140 to 145 pounds. He was muscular- he was an active looking man. I noticed particularly the left hand was a good-sized hand, a hand that denoted strength or a shoulder that ...
Q. So that the hand you said you saw where’?
A. The left hand, that was placed ... on the back of the front seat. he had a gray, what I thought was a shirt—had a grayish, like navy color, and the face was what we would call clear-cut, clean-cut face.
Through here [indicating] I was a little narrow, just a little narrow. The forehead was high. The hair was brushed back and it was between, 1 should think, two inches and two-and-one-half inches in length and had dark eyebrows, but the complexion was a white, a peculiar white that looked greenish.[73]
427. Limited Scope. Australian decisions assert a general desirability of giving a warning to the jury where the identification is of a stranger. It is still; however, a matter of discretion. For example, in Kelleher v R, Justice Gibbs[74] rejected the suggestion that the jury should be warned there was no identification parade, because the identification made by the witness outside the court was not ‘promoted by suggestion that the person identified was the offender ...’ Failure to warn of the dangers of identity evidence has led to the ordering of new trials or the quashing on appeal of convictions.[75] In general, however the court will do so only if there is no corroboration at all,[76] or none but a disputed confession,[77] or other insufficient corroboration or the conditions for observation were bad, or the identifying witness has failed to recognise the suspect on some occasion. But everything turns on the circumstances.[78] The above research highlights the fact that the dangers of misidentification occur where non-strangers are involved and that the problems are such that warnings should always be given.
428. Difficulty of Assessing the Evidence. A warning assumes it is possible to assess the probative value of the evidence. As identification involves a very complex mental process which may be subject to many distorting factors, there is invariably a significant risk of erroneous identification, even in cases where the witness is confident that he is accurate. It is very difficult to assess the reliability of eyewitness identification:
The two ways of testing a witness are by the nature of his story—is it probable and coherent’?—and by his demeanour—does he appear to be honest and reliable’? It is well-known to legal practitioners as well as to forensic psychologists that eyewitnesses of an event can differ widely about the details of it. But normally when the court has to reach a conclusion about an incident or event, it does not have to make a finding on each detail: it is enough if out of the evidence as a whole there can be extracted as much of the story as it is necessary to know in order to determine the point of issue. But in identification evidence there is no story; the issue rests upon a single piece of observation. The state of the light, the point of observation and the distance from the object are useful if they can show that the witness must be using his imagination; but otherwise where there is a credible and confident assertion, they are of little use in evaluating it. Demeanour in general is quite useless. The capacity to memorise a face differs enormously froth one man to another, but there is no way of finding out in the witness box how much of it the witness has got; no-one keeps a record of his successes and failures to submit to scrutiny. If a than thinks he is a good memoriser and in fact is not, that fact will not show itself in his demeanour. Witnesses who are themselves convinced of the truth of their identification and who are able to impart to a jury their own sense of conviction, have not infrequently been found to have been mistaken. A single mistake may be fatal, since in identification cases where there is no corroboration the verdict has to rest on a single point: the risk of error in observation or in comprehension is not spread as it is when a conclusion rests upon a number of observations.[79]
429. The psychological research supports the conclusion of the Devlin Committee that a person’s confidence in the accuracy of his identification is not a sound indicator of accuracy. The more traditional laboratory studies on human memory have provided evidence that subjects are aware of what they know and do not know and can predict their own performance to a reasonable degree of accuracy.[80] However, there exist several studies that show no relationship between confidence and accuracy when assessed by others—for example, Clifford and Scott’s experiments of eyewitness testimony after violent events as contrasted with non-violent events.[81] Here no relationship was found between the correctness of a witness’ response and his confidence in that response when assessed by others. Similarly, the recent work of Wells and colleagues 1979[82] shows that witnesses who make false identifications of a suspect appear to be as confident in the correctness of their identifications as are witnesses who make accurate identifications. There are some studies[83] which show that under certain circumstances a person can be more confident when incorrect than when correct. This happened in Loftus’ study in which some subjects saw a red Datsun go through a stop sign; others saw it go through a yield (give way) sign. During the retention interval, subjects were exposed to misleading information about the sign—those who saw it was a stop sign were told it was a yield (give way) sign, and vice versa. When the misleading information was delayed and introduced just prior to the time that the subject was tested, subjects who were incorrect about the sign they saw were more confident than subjects who were correct. The problem is that in the court situation persons other than the eyewitness have to assess the confidence of the identification and reach conclusions as to its accuracy when there is no relationship between the level of confidence of a group of eyewitnesses and the reliability of their identification.
430. Danger of Misestimation. Reference has already been made to the tendency to accept eyewitness testimony too easily and despite the deficiencies in it being demonstrated. A warning process assumes that misestimation can be avoided, if an appropriate warning is given.
431. Limited Scope. Again, the Australian authorities discuss the power to direct acquittals in limited terms—where the identification is of a stranger. The research suggests that the dangers are such in all cases that such limitations should not be imposed.
432. Lack of Expertise. For the power to direct acquittals to be effective, judges, legal practitioners and litigants must have a detailed understanding of the problems. This is not possessed at present.[84]
433. Dock Identification. It is essential that any identification evidence which is tendered to the court should be as accurate as possible. The procedure by which the identification is made should therefore maximize the accuracy of the identification and, if possible, permit a method for assessing its reliability. At present, the law meets neither of these requirements.
434. The identification evidence which is given in court under the present law usually has two components. It consists of the formal in-court identification, and of evidence of the previous identification made out of court. The former is the main identification, while the latter is tendered merely as a prior consistent statement in support of the former. This procedure is consistent with the usual principle that evidence should be tendered by the witness directly to the court during the hearing and be based upon the witness’ current recollection of the event in question. Such a principle is normally justified on the basis that it will enable the finder of fact to have the opportunity to assess the reliability of the evidence in order to determine its weight.
• Problem of Assessment. It may be argued that the general principle should not apply in the case of identification evidence, and that the first identification made out of court should be the main identification. A record of this out of court identification should be made and tendered to the court. The in-court identification would then be made merely to confirm that the prisoner is the same person as the one who was identified previously. A case can be made that identification evidence should be specially regarded by the law simply because it is evidence of a special character. The usual reasons for insisting that the witness’ testimony should be given first at the trial are not applicable where identification evidence is concerned. As the Devlin Committee points out,[85] it is not possible for the fact finder to test the credibility of identification testimony by the normal methods. It is not possible to determine whether his story is probable and coherent. Nor will scrutiny of his demeanour assist in establishing the accuracy of the identification.
• Unreliability of Dock Identification. It may also be argued that an in-court identification is not likely to be very reliable. The law explicitly recognizes that an in-court identification is of little probative value unless supported by evidence of a prior identification. According to Cross:
It might be thought that in criminal cases there could not be better identification of the accused than that of a witness who gets into the box and swears that the man in the dock is the one he saw coming out of a house at a particular time, or the man who assaulted him. Nevertheless, such evidence is suspect where there has been no previous identification of the accused by the witness. This is because its weight is reduced by the reflection that, if there is any danger of resemblance between the man in the dock and the person previously seen by the witness, the witness may very well think to himself that the police must have got hold of the right person, particularly if he has already described the latter to them, with the result that he will be inclined to swear positively to a fact of which he is by no means certain.[86]
A major objection which can be levelled against a dock identification is that it is in essence a response to a form of leading question. The proper form of question is ‘Do you see the person referred to in Court?’[87] It is obvious that the expected or ‘correct’ answer to such a question is a positive identification. As Cross points out, this is because of the expectation of the witness. The expectation that the person in the dock is indeed the criminal is likely to affect the recognition process. Thus a positive identification is very likely.
The same criticism applies to an identification of the accused in the court but not in the dock. It is nevertheless apparent to an astute witness, or to one familiar with the layout of a court, who the accused is likely to be. The witness is still in effect confronted with someone he knows is charged with the very offence in question.
435. Photograph Identification. Prior to assessing the value of photographic identification, a distinction must be drawn between the two purposes for which photographs tend to be used in the pre-trial police procedure. First, the examination of photographs by a witness may assist the police in the detection and apprehension of the offender: the photographs may be used to assist the police by giving them a likeness of the offender. Secondly, a similar procedure may be used to confirm that the person depicted in one or more of the photographs is the person who committed the crime. Justice Mason, speaking in Alexander’s case[88] recognized this distinction adding that problems arise from ‘the use by the police of methods of identification which though well suited to the investigation and detection of crime, are not calculated to yield evidence of high probative value in a criminal trial.’ It may be argued that it is both proper and necessary for police to use photographs immediately after the crime in order to obtain a ‘lead’ on a suspect, and prior to suspicion concentrating upon a particular individual. However, it is not satisfactory that photographs be used for the purpose of making the identification for evidentiary purposes:
• Unreliability. There are obvious dangers in making a positive identification from a set of police photographs. Snapshots in police files are generally in black and white, show only head and shoulders of the suspect, and may have been taken years prior to the offence for which the culprit is being sought. Thus,. viewing a photograph does not give the witness the opportunity to assess the height of the suspect, to see the colour of his complexion, or to hear his voice. The suspect is not seen in context.[89] The procedures adopted by the police during the detection process can introduce a bias and unwittingly encourage a positive identification.[90]
This problem is compounded by the fact that it is not possible to prevent such measures being taken by the police, or for the defence to be aware that they have been taken. When photographs are being scrutinized at the early stages of an investigation, neither the accused nor his solicitor is present. In this respect, the procedure differs from an identification parade, at which the presence of the accused provides some, albeit limited, safeguard from these problems. The additional hazard with photographic identification is that persons with a criminal record will be particularly vulnerable to misidentification, whereas those without a record will not be subject to this risk at all.
• Prejudicial Effect. Another problem is that photographic evidence tends to be prejudicial to the accused. The effect of informing the jury that the accused was identified by the use of police photographs is to inform them that he had a police record. The value of an out of court identification of the accused by photograph is extremely slight, whereas there will be considerable prejudice to the accused if the jury know that, prior to the commission of the offence, the suspect was known to the police. No psychological study has attempted to replicate this phenomenon in the laboratory; however, it is well established that mock jurors are more likely to convict an accused whom they know to have a criminal record:
― Doob and Kirshenbaum[91] conducted such an experiment, using 48 men and women who came from a cross section of the population and were aged between 18 and 50. All of the subjects in the experiment were given the same hypothetical case in which a man was being tried for breaking and entering. They were asked to determine his guilt. The case was especially constructed for the experiment in such a way that the guilt or innocence of the accused was unclear; it was expected subjects would tend to be undecided as to whether or not the accused was guilty. The subjects were then divided into four groups, each group receiving separate instructions:
(i) Group one was told that the accused had a criminal record and were given no other information.
(ii) Group two was given limiting instructions. They were told that the accused had a criminal record, and that the evidence of previous convictions was to be used to determine credibility and not guilt. They were also told he gave no important information while in the stand.
(iii) Group three were not told that he had prior convictions, and were told that he did not take the stand because there was no need for it.
(iv) Group four were given no additional information about the accused at all.
The subjects were then asked to indicate on a seven point scale how likely it was that the defendant was guilty. Two significant conclusions were drawn:
(i) Criminal record. The effect of hearing about the criminal record was statistically significant. Subjects who heard nothing about previous convictions rated slightly more than 4, the mid point of the scale—ie they were undecided about his guilt. Only one of these 24 subjects thought he was definitely guilty. On the other hand those subjects who received the information that the accused had a previous criminal record, rated on average approximately 3—ie, probably guilty. Eight out of 24 of these subjects thought he was definitely guilty.
(ii) Limiting instructions. The instructions to use the information about the previous convictions to determine credibility but not guilt had no effect at all on the judgments. The instructions were in effect, ignored. If jurors had taken the instructions into account their judgments would have been similar to the groups which received no information about previous convictions. In fact, the results were the same as those who had simply been told that the defendant had a criminal record.
― Sealy and Cornish.[92] In 1973 an experiment known as the LSE project was undertaken. The jurors were taken from a wide range of ages, occupations and socio-economic status. The groups were divided into four groups, each being in a different experimental condition.
(i) In the first group the jury was informed that the defendant to be judged had a previous record for offences similar to the offence for which he was being tried. No instruction was given by the judge to disregard this evidence.
(ii) The second group of juries were informed that the defendant had a previous record—eg, a man on trial for theft had a conviction for indecency.
(iii) In the third group the juries were informed that the defendant had a previous record for similar offences but the judge told the jury to disregard the evidence.
(iv) The final group was a control group. No previous record was mentioned.
The results were that the introduction of similar previous convictions produced significantly more verdicts of guilt than in the three other categories. There was also a higher rate of convictions in the second and third categories than in the control group, but the rate was not as high as where the defendant had previous similar convictions. This suggests that juries do take into account even dissimilar convictions, and similar ones despite a warning. Nevertheless, the instruction did have some effect.
436. Need for Special Treatment. The foregoing discussion illustrates the need for special rules to deal with dock and photo identification. The present law may be criticised for not doing so. In relation to photo identification there is the additional point made by the Devlin Committee:
[t]here is a particular class of the community, namely persons with police records, which is especially vulnerable to the peril of misidentification. When there is brought to the police a complaint against an unknown person, inevitably they initiate an enquiry, as they did in the Dougherty and Virag cases, by looking in their records for the sort of person who is associated with the type of crime committed. This may lead to identification by photograph which ... puts the accused at a further disadvantage. On the other hand, as far as the person of good character is concerned, not only is his photograph not found in police records, but if tried, he can freely put his character in evidence and it is highly improbable that uncorroborated evidence of identification would upon any serious charge prevail against him. if he could offer any plausible, albeit uncorroborated, account of some other activity at the time.[93]
[1] See above, para 1411-50 and Appendix C, para 143-5.
[2] See. generally, Great Britain, Report to the Secretary of State for the Home Department of the Departmental Committee on Evidence of Identification in Criminal Cases, HMSO, London, 1976 (Chairman: Lord Devlin) para 4.12-4.15; DS Greer, ‘Anything But the Truth? The Reliability of Testimony in Criminal Trials’ (1971) 11 British Journal of Criminology 131; J Marshall, Law and Psychology in Conflict, 2nd edn. Bobbs-Merrill, New York, 1990.
[3] Australian Law Reform Commission, Report No 2, Criminal Investigation, AGPS, Canberra, 1975, para 118.
[4] ibid.
[5] Devlin Committee Report. ch 2.
[6] id. ch 3.
[7] G Williams, ‘Evidence of Identification: The Devlin Report [1976] Crim L Rev 407, 408. For a recent alleged error see G Davies, ‘Identification Evidence: A Passport to Injustice’ (1983) 63 New Society 288 (24 February 1983)—the case of Christopher Scales.
[8] id. 407.
[9] EF Loftus, Eyewitness Testimony, Harvard University Press, Cambridge, 1979, 134.
[10] EF Loftus, ‘Eyewitness Testimony: Does The Malleable Human Memory Interfere With Legal Justice’ (1975) 10 Social Action and The Law, 8.
[11] T Salisbury, ‘Eyewitness Identifications: A New Perspective on Old Law’ (1979) 15 Tulsa LJ 38, 39, n 6.
[12] Devlin Committee Report, para 4.11.
[13] ABC, Four Corners (3 July 1976) Transcript, ‘A Case of Mistaken Identity’: DM Thomson & SL Robertson, ‘Person Recognition: The Effect of Context’, Monash University (Unpublished paper) 24-25.
[14] JV Barry, ‘The Problem of Human Testimony’ (1938) 11 ALJ 314, 317. The Commission has been referred to cases where the identification was seriously open to question.
[15] Note the Bunning v Cross ((1978) [1978] HCA 22; 141 CLR 54) discretion—to exclude improperly or irregularly obtained evidence.
[16] [1933] HCA 41; (1933) 49 CLR 429, 446.
[17] Psychologists have named the stage at which the witness makes the observation and the observation becomes impressed upon the mind the acquisition stage. This refers to the perception of the original event in which information is encoded, laid down, or entered into a person’s memory system: Loftus (1979) 21-43.
[18] ibid. These can be divided into stimulus factors (eg intensity of light or sound, speed of movement) and situational factors (the background); Dr D Thomson Submission (November 1982).
[19] Williams. 498.
[20] eg, near sightedness, colour blindness, ability to adapt to the dark; See Loftus (1979) 21-43; HE: Burtt, Legal Psychology, Prentice Hall, New York, 1931, 52-5.
[21] See also, para 666 (text accompanying n 42-3).
[22] R Buckhout, ‘Eyewitness Testimony’ (1974) 231 (no 6) Scientific American 23, 29-31. It was found also that the best performers in the recognition test were also the best performers in the recall test:
In private most lawyers and judges agree that the recall of a crime by a witness is very bad, but they still believe people can successfully identify a suspect. (30).
[23] AD Yarmey, The Psychology of Eyewitness Testimony, Free Press, New York, 1979, 51, 52.
[24] id, 52.
[25] Buckhout, 25.
[26] Yarmey, 52; Marshall, 17.
[27] Marshall, 31. See also EF Loftus, Meurun, Addison-Wesley, Reading Mass, 1980, 78; Loftus (1979) 33-6; W Stern ‘The Psychology of Testimony’ (1939) 34 Journal of Abnormal and Social Psychology 3, 10-1.
[28] Loftus (1979) 31-2; EF Loftus, ‘The Eyewitness on Trial’ (1980) 16 (no 10) Trial 30, 32.
[29] For recent discussion of relevant research see KA Deffenbacher, ‘The Influence of Arousal on Reliability of Testimony’ in SMA Lloyd-Bostock & BR Clifford (ed) Evaluating Witness Evidence, John Wiley & Sons, Chichester, 1983. 235, 247.
[30] See below. para 664.
[31] So in recounting the observation of a white man holding a razor and a blackman with empty hand, the razor tends to migrate to the black man; students who observe a person remove a library book contrary to regulations, subsequently describe the person as putting the book back in the shelf: See Stern, 11; IML Hunter, Memory, Penguin Books, Harmondsworth, 1968, 173; Loftus, Memory (1980) 39-40; Loftus (1979) 37-40; Buckhout, 26; Yarmey. 63; Stern. 20 (who refers to criminal stereotypes).
[32] Generally see Loftus, Memory (1980) 143.
[33] Marshall, 41; see also Loftus (1979) 79-80.
[34] Marshall, 20. 23.
[35] id. 39.
[36] id, 40; Loftus (1979) 109.
[37] C Bird, ‘The Influence of the Press upon the Accuracy of the Report’ (1927) 22 Journal of Abnormal and Social Psychology 123-9. See also Davis and Sinha experiment using Brueghel’s picture, The Wedding Feast, in Hunter. 264.
[38] Loftus (1979) 55.
[39] id, 56.
[40] EF Loftus & KF Ketcham, ‘The Malleability of Eyewitness Accounts’, in Lloyd-Bostock & Clifford, 159. Note, however, JW Shepherd has found no significant difference in recognition performances where photos and description, were interpolated. Shepherd points out, however, that the Devlin Committee warning was used—the suspect may not be in the parade and to point out the person only if certain. The error rate went up significantly when those unable to identify a suspect were invited to point to a person who resembled the suspect—JW Shepherd, ‘Identification After Long Delays’, in Lloyd-Bostock & Clifford, 180, 182. See also JW Alba, SC Alexander, L Hasher & K Caniulia, ‘Human Learning and Memory’ (1981) 7 Journal of Experimental Psychology 283-93. Note, however, the rate of false identification was substantial even when the Devlin Committee warning was given—eg 35 per cent.
[41] Loftus, (1979) 56.
[42] id, 58.
[43] id, 60.
[44] id, 142-4.
[45] id, 143.
[46] ibid.
[47] E Brown, K Deffenbacher & W Sturgill, ‘Memory for Faces and the Circumstances of Encounter’ (1977) 62 Journal of Applied Psychology 311-8.
[48] Loftus (1979) 146.
[49] id, 147.
[50] DR Hall & TM Ostrom, Accuracy of Eyewitness Identification after Biased or Unbiased Instructions, Ohio State University, 1975 (Unpublished Paper).
[51] RS Malpass & J Kravitz, ‘Recognition for Faces of Own and Other Race’ (1969) 13 Journal of Personality and Social Psychology 333, 334. The factor has been, judicially noted: R v Lewis, Unreported, Court of Appeal, England (14 March 1972).
[52] Loftus (1979) 82.
[53] R Hastie, R Landsman & EF Loftus, ‘Eyewitness Testimony: the Dangers of Guessing’ (1978) 19 Jurismetrics Journal 1-8.
[54] DM Thomson, ‘The Realities of Eyewitness Identification’ (1982) 14 Australian Journal of Forensic Sciences 150, 151.
[55] ibid.
[56] DM Thomson, ‘Context Effects and Recognition Memory’ (1972) 11 Journal of Verbal Learning and Verbal Behaviour 497; DM Thomson & E Tulving, ‘Associative Encoding and Retrieval: Weak and Strong Cues’ (1970) 86 Journal of Experimental Psychology 255; E Tulving & DM Thomson, ‘Encoding Specificity and Retrieval Processes in Episodic Memory’ (1973) 80 Psychological Review, 352.
[57] Thomson, 156.
[58] PM Wall, Eyewitness Identification of Criminal Cases, Charles Thomas, Springfield, 1965, 11-25.
[59] In R v Dunne, Unreported, Court of Appeal, England (4 October 1976).
[60] Times (4 October 1974).
[61] Devlin Committee Report, para 4.21.
[62] id. para 4.20.
[63] United Kingdom, Hansard (H of L) (27 March 1974) vol 350, col 705-6 (Lord Gardiner).
[64] See cases cited below in this chapter and Appendix C, para 191.
[65] R v Burchielli [1981] VicRp 61; [1981] VR 611. This would seem to follow from the reasons for judgement although the issue was not directly raised.
[66] Davies and Cody v R (1937) 52 CLR 170, 181; Alexander v R [1981] HCA 17; (1981) 34 ALR 289: R v Burchielli [1981] VicRp 61; [1981] VR 611; R v Clune [1982] VicRp 1; [1982] VR 1; R v Keeley (1980) ACL DT 490.
[67] eg, R v Aziz [1982] 2 NSWLR 322, 327; Alexander v R [1981] HCA 17; (1981) 34 ALR 289, 292-4, 299, 314, 319.
[68] eg, R v Burchielle [1981] VicRp 61; [1981] VR 611; R v Clune [1982] VicRp 1; [1982] VR 1; R v Smith [1979] 2 NSWLR 304; Duff v R (1979) 28 ALR 663. See also Survey of psychologists, judges, practitioner, law students and potential jurors in Ontario, discussed in AD Yarmey & HPT Jones, ‘Is the Psychology of Eyewitness Identification a Matter of Common Sense’ in Lloyd Bostock & Clifford, 13-41—eg, lack of understanding of effects of stress. violence. the focussing, effect of a gun, the relationship of confidence and accuracy.
[69] Duff v R (1979) 28 ALR 663, 683; cf: R v Aziz [1982] 2 NSWLR 322 where there was no investigation of the possibility that giving a description of the assailant could have affected the identification; R v Williams [1993] 2 VR 579 where the danger of misestimation of the weight of the evidence was not discussed.
[70] Barry, 316: cf the Jury verdicts in R v Williams [1983] VicRp 116; [1983] 2 VR 579, 582.
[71] Loftus (1979) 10. Later experiments about the effect of discrediting the eyewitness’ testimony have produced conflicting results. It seems likely that while the eyewitness’ evidence may be rejected. it will have had the effect of enhancing other evidence to an inappropriate level: see research and discussion in DM Saunders. N Vidmar & EC Hewitt, ‘Eyewitness Testimony and the Discrediting Effect’, in Lloyd-Bostock & Clifford, 57, 71-2, 74.
[72] id. 11: see A Tversky & D Kahneman, ‘Causal Schemata in Judgments under uncertainty’, in M Fishbein (ed) Progress in Social Psychology, Erlbaum Press, Hillsdale NJ, 1977.
[73] id, 17-8 (citing, Wall, Eyewitness Identification of Criminal Cases, Charles C Thomas, Springfield, 1965).
[74] [1974] HCA 48; (1974) 131 CLR 534, 552: see also R v Collings [1976] 2 NZLR 104.
[75] eg, R v Preston [1961] VicRp 115; [1961] VR 761: R v Gaunt [1964] NSWR 864: R v Gaffney [1968] VicRp 54; [1968] VR 417.
[76] R v Vella [1938] St R Qd 289 (High Court): R v Goode (1970) SASR 69.
[77] R v Harris (1971) 1 SASR 447.
[78] JD Heydon, ‘Evidence of Identification: The Law’ (1982) 14 Australian Journal of Forensic Sciences 134, 140: eg R v Goode (1970) SASR 69, 81.
[79] Devlin Committee Report, para 4.25.
[80] Loftus (1979) 101.
[81] ibid.
[82] GL Wells, RCL Lindsay & TT Ferguson, ‘Accuracy, Confidence and Juror Perceptions in Eyewitness Identification’ ( 1979) 64 Journal of Applied Psychology 440. For later and other relevant research, see GL Wells & RCL Lindsay, ‘How Do People Infer the Accuracy of Eyewitness Memory? Studies of Performance and Metamemory Analysis’, in Lloyd-Bostock & Clifford, 41 and research there cited.
[83] Loftus (1979) 101.
[84] See above, para 42-5.
[85] Devlin Committee Report, para 4.25.
[86] JA Gobbo, D Byrne & JD Heydon, Cross on Evidence, 2nd Aust edn. Butterworths, Sydney, 1979, para 2.22: also Alexander v R [1981] HCA 17; (1981) 34 ALR 289, 313 (Mason J).
[87] Devlin Committee Report, para 4.99.
[88] (1981) ALR 289, 312.
[89] It should be noted photo identification was involved in the case of some of the eyewitnesses in both Dougherty’s case and Virag’s case.
[90] This contention may be illustrated by an experience of a Commission Research Officer. After witnessing an assault, she spent a day at police headquarters where she viewed scores of photographs of convicted criminals. During the day, on several different occasions, police officers presented to her a photograph of the same person interspersed among other photographs. The psychological research which has been surveyed above suggests that unconscious transference is likely to occur in these circumstances. Although a positive identification of the offender might not be made on first sight of the photograph. the chances of positive identification can be expected to increase on a subsequent viewing. By the time that a photograph is presented for the 3rd or 4th time, the likelihood of a positive identification must be very high. This factor may be heightened where a subtle shift of emphasis takes place during the investigation. In the experience of the research officer the police give a directive at the outset to ‘point out anyone who looks like the offender’. Such a statement obviously aims to assist the police in the detection process. However. by the time a photograph is shown for the third time the question changed to ‘is this the fellow?’ The entire purpose of the procedure has changed from detection to identification.
[91] AN Doob & HM Kirshenbaum, ‘Some Empirical Evidence on the Effect of s 12 of the Canada Evidence Act on an Accused’ (1972) 15 Crim LQ 88.
[92] AP Sealy & WR Cornish, ‘Jurors and their Verdict’ (1973) 36 ML Rev 496.
[93] Devlin Committee Report, para 4.22.
437. Scope of Chapter. The law has been criticised for not extending its protection. Such criticisms and the issue of extending the scope of privileges are considered in the commentary. In this chapter, it is proposed, to examine critically the rules that prevent evidence being given of certain confidential matters.
438. Inappropriate Description. Justice Murphy recently commented:
The privilege is commonly described as legal professional privilege, which is unfortunate, because it suggests that the privilege is that of the members of the legal profession, which it is not. It is the client’s privilege, so that it may be waived by the client, but not by the lawyer.[1]
439. Grant v Downs.[2] The majority of the High Court in Grant v Downs held that for the privilege to apply to communications and materials submitted by the client to the lawyer, they must have been submitted for the ‘sole purpose’ of obtaining his advice or for use in litigation. The ‘sole purpose’ requirement has been criticised:
• Privilege Too Narrow. After Grant v Downs was handed down, one academic writer commented that ‘The decision ... was greeted with disbelief by some practitioners’.[3] The authors of Cross on Evidence made the following comments and criticisms:
It is apparent that the majority decision will expose to production a great number of documents which have been traditionally supposed to be immune, such as routine reports following accidents or even loss assessors’ reports to insurance companies which have among their purposes that of informing the underwriters of the justice of a claim by the insured. It is submitted that a too rigid application of the principle in Grant v Downs will lead to an undesirable reluctance on the part of such persons to express opinions which might subsequently be used against their principals. Moreover, in practice, it is likely to lead to unnecessary refinements in the concept of ‘purpose’, as it is used in the rule, with a consequent loss of certainty among litigants as to the precise status of documents in their possession.[4]
Dennis Pearce questions the appropriateness of the sole purpose test:
It seems, with respect, however, that the adoption of the sole purpose test may have confined the privilege too narrowly. Its adoption, as was said by Lord Edmund-Davies in Waugh’s case, denies privilege even to material whose outstanding purpose is to serve litigation, simply because another and very minor purpose was also being served ... Australian lawyers ... must now proceed on the basis that few of their documents will be protected by legal professional privilege.[5]
If the ‘sole purpose test’ applies to all materials in the lawyer’s possession, it will effectively prevent the protection operating. It will be rare for documents on the file to be created solely the purpose of giving advice or for assistance in litigation. It can always be argued, for example, that the lawyer kept the materials in part as his record of what he had done.
• Discriminates Unfairly Against Corporations. A further criticism which can be raised in regard to the majority’s ‘sole purpose’ test in Grant v Downs is that it may discriminate against corporations who, of necessity, must communicate internally by written report. Very few such documents will satisfy the strict new test. A corporation ‘cannot ... think or write or act except by certain machinery, which is, so to speak, extraneous to itself.[6] Other smaller organisations and natural persons do not have the need for communication in written form and they may, therefore, not be affected by the new test enunciated by the majority in Grant’s case where a corporation would. It effectively opens the ‘brief’ of the corporation.[7]
The consequence of the rule in Grant v Downs is this:—a company will inform itself about its activities usually by management reports of one kind or another. These are prima facie discoverable and reports provided to the Board or for that matter to a more senior officer of the company either to inform it or as a basis for executive action, are not privileged.
Even if a claim has been made and the purpose is to enable the Board to decide whether the corporation is liable on the claim or how to deal with it the reports are discoverable.[8]
• Copies of Privileged Documents. It is not clear how the sole purpose test is to apply to copy documents where the original is privileged. Does the court consider the purpose for which the original document was prepared or the purpose for which the copy was prepared. Justice Cosgrove commented:
For instance, I would not think a document conveying a request to a solicitor for advice which contained a recital of facts, and which was written with no other purpose than to obtain advice, would forfeit privilege because the author foresaw that the file copy would be a handy reference point in the future. If, however, it were circulated around the office as a document containing a useful recital of facts, one might have second thoughts as to the purpose which led to its compilation. In the application of the rules, there will be difficult areas. In approaching those areas 1 prefer to adhere to the words used in the majority judgment.[9]
• Letters Communicating Legal Advice and for Other Purposes. If the ‘sole purpose’ test is to be applied to all documents in respect of which privilege is claimed it can create problems. The issue had to be addressed in Electrona Carbide Industries:
Advice from solicitors or counsel to TGIO, and letters written to co-insurers for the sole purpose of passing on that advice are privileged. On some occasions such letters had a multiple purpose, and enclosed the advice. I have ordered inspection of the letter but not of the enclosure. A real difficulty arises where the advice is quoted in the letter. I have not followed the procedure suggested by Franki J in Brambles Holdings Ltd v TPC[10] of splitting the document. However, in one or two cases I have refused to order inspection where the secondary purpose revealed was insignificant. I am conscious that this may seem to be a variation from the principles of Grant v Downs, but every rule must admit of some flexibility in application.[11]
• Meaning of ‘Sole’ Purpose. In some cases it will be difficult to establish whether there was a ‘sole purpose’. The meaning of the quoted expression was addressed in argument in National Employers’ Mutual General Insurance Association Ltd v Waind:
Two or more apparent purposes may be part of a single wider purpose. Grant v Downs does not require a single indivisible purpose. It is sufficient if there is a single wider purpose within which may be encompassed any number of related or dependent purposes, provided none is a separate purpose independent of the wider purpose for which the document would have been brought into existence.[12]
The High Court did not have to address the question as, on the facts, the purposes could be regarded as severable.[13]
• Experience since Grant v Downs. Enquiries by the Commission reveal that:
― on occasions steps are taken to avoid the consequences of Grant v Downs by the corporation, after preliminary investigations, instructing its legal advisers who then engage and communicate directly with third persons such as investigators. This can be cumbersome and costly. The extent to which this is done is not clear.
― within corporations aware of the decision attempts are made to avoid comment and expressions of opinion about liability or fault in internal memoranda. In addition, investigation may be delayed until a letter of demand is received or litigation commenced. This can occur some time after the event and the delay may hamper the investigation:
It must become more difficult for the lay client to obtain complete or satisfactory legal advice. People will seek advice in conference and obtain it orally. Notes will be destroyed at the earliest opportunity. Candour will decrease and the lay client’s suspicion of his lawyers will be fuelled by the possibility that his lawyers may be subpoenaed to attend and give evidence at administrative proceedings at which any of the client’s admissions to the lawyer could doubtless be extracted. The shredder will be required to work overtime.[14]
440. Use of Improperly Obtained Copies of Privileged Documents. The Law Reform Committee of Great Britain commented:
In our view, there are strong arguments in favour of the proposition that, at any rate where the privileged document has been obtained as the result of a crime or a deliberate tort, the party concerned should not thereby be deprived of his privilege. If he is, his adversary is enabled to gain a procedural advantage as the result of his own or a third person’s wilful misconduct. This we consider undesirable. In this connection, it is worth noting that Rule 26 of the American Uniform Rules provides for an even wider protection. It permits the party to continue to claim privilege for the document if it comes into another’s possession—(i) in the course of transmission between the party and his legal adviser, or
(ii) in a manner not reasonably foreseeable by the party, or
(iii) as a result of his legal adviser’s breach of duty.[15]
Despite their objections to the law in this area, however, the Committee did not recommend changes. In its view, the issue should be considered as part of the general admissibility of improperly obtained evidence. As such evidence principally arises in criminal cases, the Committee suggested that it should be left to the Criminal Law Revision Committee.[16] Recently Chief Justice Gibbs described the rule allowing the party to use privileged documents obtained by it by ‘accident, trickery, or even by theft’ as ‘remarkable’.[17]
441. Communication in Furtherance of Fraud or Crime. The privilege is lost where, usually without evidence of the communication,[18] the judge is satisfied that there is a ‘prima facie’ case (or probability) that the communication was made in furtherance of a crime or fraud.[19] This is the worst of both worlds. The issue is decided on indirect evidence and it appears that the privilege will be lost even though, on evidence being given of the communication, it appears that it should not have been. In addition the authorities require a ‘prima facie’ case of fraud or crime. This is appropriate where the alleged fraud or crime is in issue in the proceedings[20]—the judge cannot prejudge the issue. It is not appropriate where the fraud or crime is not in issue in the proceedings—the standard for facts relevant to admissibility generally should apply. The unwillingness to examine the communication is inconsistent with the approach taken in other areas of privilege. The law is also unduly limited in that it does not cover activities such as breaches of the Trade Practices Act which give rise to civil proceedings for penalties not prosecutions.
442. ‘Waiver’. It is difficult to justify the proposition that disclosure of the privilege on one occasion does not prevent privilege being claimed on a later occasion unless the waiver gives rise to an estoppel.[21] The privileged communication, document or information having been published, there appears to be no reason to continue the privilege.
443. The Welfare of the Child Paramount.[22] There are dangers in using the issue of the welfare of the child as a basis for overriding the privilege. Limits would have to be imposed. Otherwise there would be little scope for the privilege in custody and like litigation.
444. The Litigant in Person. If the correct view of the law is that the materials collected for litigation by an unrepresented litigant are not privileged then he is placed at a severe disadvantage when faced with an opposing party that is represented.
445. The ‘In-house’ Lawyer. The language used in the relevant High Court decisions is not appropriate for the situation where the potential litigant has its own employee legal advisers. Communications between such legal advisers and the board of directors, for example, were thought to be protected prior to Grant v Downs.[23] The language would require substantial modification to enable it to apply to such a situation. This may not be critical, however, because the sole purpose test would rarely be satisfied.
446. Legislation—Parties’ own Documents. Reference has been made to the lack of uniformity in the approaches taken in legislating on the topic. In some instances the privilege is abolished; in others it is under the control of the court. In the Australian Capital Territory there is an inconsistency between the Evidence Ordinance and the Court of Petty Sessions (Civil Jurisdiction) Ordinance.[24] If the privilege is available in criminal proceedings, the attempted abolition has not been successful.
447. Misunderstanding. Justice Negus in Bentley v Nelson[25] commented on the parties
honest though scarcely excusable misapprehension as to the effect of the words ‘Without Prejudice’ and the circumstances in ‘which a document bearing those words is admissible in evidence.’
Most judges and practitioners would have experienced seeing documents headed ‘without prejudice’ when to do so was ‘absurd’,[26] and even ‘mystical’.[27]
448. The Expression ‘Without Prejudice’ Unsatisfactory. On occasions parties will use the expression ‘Without Prejudice’ in an attempt to preserve an alternative right—for example, the landlord reserving the right to re-enter for breach when accepting rent or a person reserving the right to sue for damages for breach of contract when paying moneys due under the contract. Because the expression can be used to try to preserve rights other than the right to confidentiality difficulties can arise about the interpretation of the words.[28]
449. The Protection is too Narrow. Two points may be raised:
• The ‘Reasonably Incidental’ Requirement. It was argued successfully in Field’s case that the plaintiff’s statement to the defendant’s doctor as to how he was injured was not reasonably incidental to his examination for the purpose of settlement negotiation. This means that care must be taken over what is said or written. It will be dangerous to make any admissions or concessions as is often done for the purpose of showing ‘good faith and for smoothing the path to settlement’.[29] Free and frank discussion becomes dangerous. Parties should carefully consider everything they wish to say. Nice arguments are open to any party that wishes to use what was said in the discussion.
• Limit to Dispute and Parties. The authorities that the protection applies only in the same action or dispute between the same parties may be criticised as too limiting if the rationale of the law is to encourage settlement.[30]
450. Legislation. The operation of Family Law Act s 62(4) and (5) in preventing all but the Counsellor’s report being considered has been strongly criticised.[31] It is not intended, however, that any proposals in this paper should apply to discussions with counsellors. At this stage, the intention is to develop rules of general application. When these are determined, it is then appropriate to consider the terms of specific legislation which deals with the same areas.
451. Common Law—Excessive Judicial Power? The Canadian Task Force has raised the question whether the common law has not gone too far in conferring such broad powers upon the judiciary to evaluate the merits of a claim of Crown privilege. It argued that the common law had reached the stage where the court:
may privately inspect any secret document and, in the public interest, order its disclosure in court. The balance of power may have shifted too far from the executive to the judiciary. The English expression after Cammell Laird’s case and former President Nixon’s claims of executive privilege during the Watergate scandal have perhaps created an atmosphere in which the Canadian public view with hostility and suspicion any claim of Crown privilege advanced on behalf of a provincial or the federal government. Because the common law balancing of public interests is such a vague and subjective matter, there may be a lack of appellate control over a judge who is unduly sympathetic to the needs of the litigants and unfairly critical of the government’s claim.[32]
The Task Force was concerned that rules should be imposed upon the jurisdiction of the courts to enter into the merits of a claim of Crown privilege. It is felt, however, that it is extremely important that it be the judiciary that determines whether material relating to matters of state interest should be disclosed in open court. This represents the law as it is at present. Submissions have not been received by the Commission that the task given to judges is too arduous or that the power given to the courts is excessive. For the review mechanism to function effectively flexibility is necessary for the courts to assemble the information necessary for the balancing of the different public interests involved. Specific rules regulating the procedures for the making of a claim of Crown privilege would only serve to circumscribe this flexibility.
452. Legislation. The legislation passed in New South Wales and the Northern Territory respectively has been strongly criticised by civil liberties groups. It appears that the consequence of both enactments is that a position even more restrictive of access to government information than that obtaining before Sankey v Whitlam[33] is achieved. The Attorney-General is given the power to determine what is ‘in the interests of justice’. Judicial review is under those circumstances not open. This is contrary to the more recent trend of accessibility of government records.[34] It is, however, neither possible nor appropriate to recommend legislation directly interfering with this legislation. The reference is concerned only with the laws of evidence to be applied in Federal and Territory Courts.
453. Judicial Criticisms of Victorian Law. Courts have been critical of the wide scope of the Victorian provision. In Warnecke v Equitable Life Assurance Society of the United States,[35] where it was first considered, the Victorian Full Court interpreted ‘information’ to include that obtained by personal observation. In that case acting Chief Justice A’Beckett thought that repeal or amendment of the section was urgently needed. Justice Hodges said:
The wisdom of retaining this provision in its entirety seems to me to be doubtful. Many and strong reasons may be urged for preserving the inviolability of the priestly confessional, the sanctity of communications made under the marriage bond, and the secrecy of instructions given to a legal adviser. Some reasons may exist for protecting communications made to a medical adviser. But, in judicial investigations, to exclude all the information acquired by the physician or surgeon, though acquired by his own eyes, or by his own fingers, or by the operation of his own mind, apart altogether from any communication made to him, seems to me to be placing an obstruction in the way of the investigation of truth, which has no—or, at any rate, an utterly inadequate—compensating advantage.[36]
In National Mutual Life Association of Australasia Ltd v Godrich[37] Justice Higgins referred to defects in the provision, but said that the legislature, not the court, must make amends for its defects. He said:
No doubt the section is sometimes a hindrance to the establishment of the truth; but so are all rules which fetter the giving of evidence. No doubt it leads to some curious results. In an action for negligence against a medical man the defendant would (it is said) be prevented from giving evidence of his diagnosis. But then (1) his mouth is admittedly closed also as to statements made by the deceased—which is an equal injustice; and (2) his counsel and the Judge would bring emphatically before the jury on the issue of negligence the fact that his mouth is shut. The patient, if alive and suing, would be practically forced to consent to the evidence under this section. As for an action after death, under the provisions of Lord Campbell’s Act, the position is different. When this section was first enacted in Victoria (1857) the provisions of that Act were comparatively recent (see 11 Vict No 32), and the legislature does not seem to have taken into consideration this peculiar exception to the common law. The section is, in the main, just and expedient in the public interest; but if, as seems probable, it needs to be amended to some extent, it is for the legislature, not for the courts, to make the amendment.
Referring to an argument that ‘information acquired’ should be interpreted as information communicated to the doctor by the patient (in line with the lawyer-client privilege at common law)
Chief Justice Griffith said:
... if the larger construction is adopted the result will be the exclusion in many cases not only of the best evidence but of the only possible evidence, of a fact the ascertainment of which may be necessary for the ends of justice. If, for instance, the patient dies, and so can no longer give consent, a fact relating to his health and essential to be proved in order to establish some right in his executors, but which is only known to his medical adviser, becomes, it is said, incapable of proof. I confess that I cannot believe that the legislature intended such a consequence, but if they have said so it is for them, and not for the Court, to alter what they have said.[38]
Justice Isaacs, however, did not share the opinion that this law was undesirable.[39]
454. The privilege has excluded evidence of great importance, placing a party in a position to obtain an incorrect result.
• A doctor’s evidence tending to show whether a deceased patient had suffered from a disease which he concealed to obtain a policy of life assurance was excluded in an action under the policy: Warnecke v The Equitable Life Assurance Society of the United States.[40]
• A doctor’s evidence of bodily characteristics observed during consultation or treatment and not patent to the world was excluded in a suit for nullity of marriage on the ground of impotence of a husband although it would corroborate the petitioner’s evidence: F (otherwise M) v F.[41]
• In an action by a deceased patient’s employer to recover, under the Workers’ Compensation Act 1958, s 62, the amount of workers’ compensation payments from the defendant, whose negligence was alleged to have caused the accident following which the patient died, evidence of statements made by the patient to a doctor who examined him after the accident was excluded on the ground that the patient’s widow, as executrix, could not consent if she was not a party to the action.[42]
• Documents, being medical records sought to be tendered as evidence of doctors who treated a deceased patient, showing whether, when he entered into a house purchaser’s death benefits contract, he suffered from asthma, which caused his death, were excluded in an action by the patient’s widow, as executrix, to enforce the death benefits contract, because the various statements by the doctors in the documents could be admitted only if those doctors, when called as witnesses, could have given evidence of the deceased’s condition, which they could not do under s 28(2) in the absence of the required consent: Carusi v Housing Commission.[43] Accordingly, the Housing Commission was obliged to forego the purchase money unpaid at the date of the patient’s death other than arrears and interest then due.
Justice Isaacs in Godrich’s case[44]said that the enactment ‘works no abridgment of any substantive right, no invasion of liberty or property, nothing but a regulation of curial procedure to effect a desired reform in the law of evidence for the maintenance of good faith ... I am not able to share the opinion of some learned judges that such a law is undesirable’.
455. It is difficult to agree, however, with Justice Isaacs when the results of the above cases are considered. The crucial issue is that of policy in deciding whether the technical maintenance of good faith by the medical profession should continue to have priority over the ability of patients or their estates to take advantage of the Victorian section 28 or its equivalent in Tasmania and the Northern Territory in order to receive financial benefits to which they might otherwise not be entitled.
456. Form of Privilege Inappropriate. The legislation does not address the position of the patient as witness. It does not provide, for example, that the patient may refuse to give evidence. Thus it is theoretically possible for the patient to be required to give evidence of examinations carried out and treatment prescribed, but for the doctor to be prevented from giving such evidence by the withholding of the patient’s consent. There is authority that disclosure by the patient in cross-examination does not amount to consent. But the result is then that the court receives only part of the available evidence and is deprived of that which would be most valuable. A more appropriate approach would be to treat the voluntary disclosure by the patient in court as a waiver.
457. Omissions of Legislation. The Victorian legislation may be criticised in permitting the privilege to be used to protect communications made for criminal purposes. Legal professional privilege is not available to protect such communications. It may also be criticised for not having the insurance exception provided in the legislation of Tasmania and the Northern Territory. The latter may be criticised, however, for its failure to attempt to address the problem of who may consent when the patient dies and not extending the sanity exception to cases where testamentary capacity is an issue.
458. Civil Trials only. The legislation draws a distinction between civil and criminal trials. The lack of a privilege may be justified in a criminal trial on the basis that the community interest in enforcing the law necessitates the absence of a privilege. However, it is important to have all relevant evidence available in civil proceedings in the interests of accurate and fair fact finding. Drawing the line at civil proceedings is an arbitrary act which fails to take account of the importance of the evidence, the relationship between patient and doctor and the nature of the proceedings.
459. Non-Privilege Jurisdictions. The issue of whether a form of privilege should be available is canvassed in the commentary to the proposals.[45]
460. The Statutory Privilege. The privilege, where it does exist in Australia, applies exclusively to penitential communications. The result of this is that protection is only afforded to those denominations with an institutionalised system of confession. Protection is not thereby accorded to those denominations or religions in which spiritual advisers give assistance on a personal and private basis, but only to those with the sacrament of penance. This has been criticised as discriminatory.[46]
461. The Jurisdictions with no Privilege. The fact that a privilege does not exist for communications between cleric and communicant in most jurisdictions may be criticised as an interference with the right of the citizen to practice his religious beliefs without interference from the law. The potential for the courts to compel disclosure by a spiritual adviser of confidential communications to him constitutes at least in theory a barrier to free and unfettered practice of religion. By not providing any rules, the law has failed to provide the machinery with which to cope with the ethical dilemma that can face a minister of religion. It is an ethical, if not a fully stated, obligation of most ministers of religion to keep in confidence what is entrusted to them under confidential circumstances. The absence of legislation may thus be criticised as leaving a difficult decision for clerics when faced with the choice of disobeying their own ethical standards or complying with the demands of the court for evidence. The question of whether a privilege should be available is canvassed further in the commentary to the proposals.
462. Criminal Trials. In those jurisdictions where the privilege applies in criminal proceedings, there, is potential for injustice because a spouse would not be compellable to give evidence of communications either for the spouse accused or a co-accused.
463. Absence of Privilege. There is no privilege to protect confidential communications made within a confidential relationship. From time to time this situation has been criticised by those involved professionally in confidential relationships—be they psychiatrists, social workers, journalists. Whether such criticism is valid is an issue canvassed in the commentary to the proposals. There are, in addition, no recognised procedures and guidelines to deal with the situation where a witness finds his ethical obligations conflicting with his obligations as a witness. In practice, the judge will improvise. He may see if the facts sought will be admitted or proved through another witness. He may try to encourage the questioner to limit his questioning. Ultimately, he may be forced to deal with the situation by the exercise of his discretions relating to contempt of court. It would seem to be preferable to provide rules which can be applied at the point at which the issue arises and which directly address the issues.
464. Common Law. A number of difficulties exist with the interpretations of the common law privilege:
• aspects of the privilege may be criticised as anachronistic; particularly, those that have allowed its invocation where it would expose the witness to ecclesiastical censure, notoriety of adultery, disgrace[47] or liability to forfeiture;
• many judges perceive themselves under no obligation to inform a witness of his right to claim the privilege, meaning that witnesses who have not received legal advice may incriminate themselves without realising that they were not obliged to;
• should a judge compel the giving of testimony by a witness and in the course of that discover that the testimony was in fact self-incriminating, at common law it is probable that the witness has no alternative but to suffer the consequences; no retrospectivity of protection is available.
Some critics argue that the privilege should be abolished. This issue is considered in the Commentary to the Proposals.[48]
465. Legislation. Aspects of the present certification provisions cause concern:
• The operation of the certification provision depends entirely upon the exercise of an unguided discretion. The decision has potentially grave consequences for the witness. The consideration (‘in the interests of justice’) gives no guidance. Is the judge to consider what consequential evidence might be obtained? He cannot do this without knowledge of the evidence the witness is likely to give.
• The judge is placed in the position of deciding whether the witness must be compelled to answer the incriminating questions. It is a proper matter for concern that a judge may be seen to be forcing people to give such evidence in the exercise of his unfettered discretion.
• Once the judge has made the decision, the witness on being informed of the availability of the certificate must answer the questions regardless of what the answers may reveal—he has no choice in the matter.
• The witness will receive the certificate only if he answers all the questions. If some unforeseen issue arises and he is questioned about it, he must answer.
466. No Longer Necessary. The privilege relating to title deeds has its origin in a system of land tenure no longer generally applicable in Australia. As Wigmore points out:[49]
[U]nder any title system not founded on compulsory public registration, the secrecy of the title instruments comes to be a vital consideration for the occupants of the land. Their right of possession may be unquestioned, but the instruments under which they claim are constantly defective in some important feature.
In many circumstances the security of title may depend as a practical matter upon preserving the defects in title from ascertainment by persons opposed in claim or by blackmailers who might be only too glad to take advantage of them. It, therefore, came to be a fundamental maxim of law, the legal system in effect protecting members of the public against its own inadequacies, that each occupant is entitled to keep secret his documents of title. Without this, the danger was that all too many titles in the land might lie in jeopardy. The antiquity of the principle and the fact that its existence appears to have been always accepted in England courts testifies more to the practical problems of land ownership prior to this century than to the soundness of the theoretical underpinnings of the rule.
467. Where a system of compulsory public recording or registration of titles is in existence a privilege protecting the disclosure of titles serves neither necessity nor utility. For these reasons the privilege does not exist as such in the United States or in Canada[50] and should be abolished.
[1] Baker v Campbell (1983) 49 ALR 385, 408.
[2] [1976] HCA 63; (1976) 135 CLR 674.
[3] D Pearce, ‘Legal Professional Privilege—Sole or Dominant Purpose’ [1979] ACL DT 281.
[4] JA Gobbo, D Byrne & JD Heydon, Cross on Evidence, 2nd Aust edn, Butterworths, Sydney, 1979, para 11.27.
[5] Pearce, 283. The sole purpose test was criticised as too narrow by the House of Lords in Wanugh v British Railways Board [1979] UKHL 2; [1979] 2 All ER 1169, 1175 (Lord Simon of Glaidsdale), 1174 (Lord Wilberforce), 1182 (Lord Edmund Davies), 1184 (Lord Russel of Killowen). See also DL Mill, ‘Legal Professional Privilege: Grant v Downs’ [1977] ACL DT 66, 68: Brambles Holdings Ltd v TPC [1981] ATPR 40-221: T Pagone, ‘Legal Professional Privilege after Baker v Campbell (1984) 58 LIJ 124, 126.
[6] Mayor and Corporation of Bristol v Cox (1884) 26 Ch D 6721, 682.
[7] An examination of the cases since Grant v Downs supports this contention.
[8] SP Charles, ‘Legal Professional Privilege and the Protection afforded to Communications with Corporate Lawyers’, Patter, presented at the Proceedings of the Inaugural Australian Seminar for Corporate Lawyers: their Role and Responsibilities (29 March 1983).
[9] Electrona Carbide Industries Pty Ltd v Tasmanian Government Insurance Office, Unreported, Tas SC (26 February 1982) 7.
[10] [1981] ATPR 40-221.
[11] Unreported, Tas SC (26 February 1982) 14.
[12] [1979] HCA 11; (1979) 141 CLR 648. 649.
[13] id, 656.
[14] Charles, 31: note the risk of being in contempt of court for destroying documents, id, 32-3 citing Partnership Pacific Case (The Registrar to the Supreme Court, Equity Division v MacPherson) [1980] 1 NSWLR 688: James v Robinson [1963] HCA 32; (1963) 109 CLR 593.
[15] Law Reform Committee, England and Wales, Sixteenth Report, Privilege in Civil Proceedings, HMSO, London, 1967, Cmnd 3472, 13-4. JD Heydon is also critical of the lack of protection from eavesdropping, trickery and lawyer’s breach of the duty: ‘Legal Professional Privilege and Third Parties’ (1974) 37 ML Rev 601, 606-8: and see Pagone, 127.
[16] In 1972 the latter Committee failed to discuss legal privilege but opposed changing the rule that improperly obtained evidence is admissible. Apparently the Committee felt that such a change would unjustifiably reduce the amount of evidence in the hands of the police: Criminal Law Revision Committee, England and Wales, Eleventh Report Evidence (General) HMSO, London, 1972, Cmnd 4991, para 68 and see also 601-3.
[17] Baker v Campbell (1983) 49 ALR 38, 394: note also the reservations of Brennan J (428).
[18] Butler v Board of Trade [1971] Ch 680. 686.
[19] See Appendix C, para 237 (text accompanying n 272-4).
[20] See Bullivant v Attorney-General for Victoria [1901] UKLawRpAC 15; [1901] AC 196, 201.
[21] See Appendix C, para 237 (text accompanying n 67-79). Wigmore’s view was that the protection should be lost if the client gives evidence about the communication: JT McNaughton (rev) Wigmore on Evidence, Little, Brown & Co, Boston, 1961, vol 7, para 2329.
[22] Re Bell; Ex parte Lees [1980] HCA 26; (1980) 30 ALR 489.
[23] Allied Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No 2) [1972] 2 QB 102 (CA). The point was conceded before the House of Lords ([1974] AC 405).
[24] See Appendix C, para 238.
[25] [1963] WAR 89, 96.
[26] cf Tomlin v Standard Telephones and Cables Ltd [1969] 1 WLR 1378, 1384 (Ormrod J).
[27] Lindsay v Union Steamship Co of New Zealand [1960] NZLR 486, 500 (Adams J).
[28] The significance of this criticism depends on whether one accepts the express or implied agreement rationale—see below, para 890.
[29] D Vaver, ‘Without Prejudice Communications—Their Admissibility and Effect’ (1974) 9 UBCL Rev 85, 94.
[30] Waxman and Sons Ltd v Texaco Canada Ltd (1968) 69 DLR (2d) 543.
[31] MD Broun & SG Fowler, Australian Family Law and Practice Reporter, CCH Australia Ltd. Sydney (1975) 19, 083 and note judicial statements re the importance of testing, reports cited at 19, 074.
[32] Federal Provincial Task Force, Report on Uniform Rules of Evidence, Canada, Carswell Co, Toronto, 1982, para 34.6.
[33] (1979) 33 ALJR 11.
[34] Australian Law Reform Commission, Report No 22, Privacy, AGPS, Canberra, 1983, para 984ff.
[35] [1906] ArgusLawRp 82; [1906] VLR 482, 487; this criticism was adopted by Gillard J in Andasteel Constructions Pty Ltd v Taylor [1964] VR 1 12, 114-5.
[36] id. 488.
[37] [1909] HCA 93; (1910) 10 CLR 1, 41-2. Similar criticism was made by Sholl J in Pacyna v Grima [1963] VR.421, 427.
[38] [1909] HCA 93; (1910) 10 CLR 1, 10: referred to by Gilfard J in Andasteel Constructions Pty Ltd v Taylor [1964] VicRp 17; [1964] VR 112, 113.
[39] [1909] HCA 93; (1910) 10 CLR 1, 38. Reference to American decisions. which had influenced the court in Warnecke’s case [1906] ArgusLawRp 82; [1906] VLR 482 was discouraged in Godrich’s case [1909] HCA 93; (1910) 10 CLR 1, 13-4 (Griffith CJ), 24 (Burton J), 31-2 (O’Connor J): cl 41 (Higgins J).
[40] [1906] ArgusLawRp 82; [1906] VLR 482; National Mutual Life Association of Australasia Ltd v Godrich [1909] HCA 93; (1910) 10 CLR 1.
[41] [1950] VicLawRp 48; [1950] VLR 352. But the petitioner’s evidence was held to be corroborated by the failure of the respondent to submit to medical inspection pursuant to an order of the court and to appear at the hearing of the suit. Accordingly. a decree nisi of nullity was granted on the ground of the respondent’s incapacity.
[42] Andasteel Constructions Pty Ltd v Taylor [1964] VicRp 17; [1964] VR 112. The introduction in Victoria in 1966 of section 28(3) has overcome the effect of that decision, although the problems raised by the case do remain, as the case is still good authority in Tasmania and the Northern Territory and the legislation has left gaps—see above.
[43] [1973] VicRp 19; [1973] VR 215.
[44] [1909] HCA 93; (1910) 10 CLR 1, 34.
[45] See below, para 910-17.
[46] See RL Stoyles, ‘The Dilemma of Constitutionality of the Priest—Penitent Privilege—The Application of the Religion Clauses’ (1967) 29 U Pitt L Rev 27, 59.
[47] See Appendix C, para 208.
[48] See below, para 852-62.
[49] Wigmore on Evidence, para 2211.
[50] Note however Connecticut General Statute Review, para 52-199, (1958).
468. Relevant Policy Concerns not Clearly Articulated. The common law discretion in terms requires the balancing of policy considerations. While it is clear, however, that one side of the equation is the degree to which the evidence indicates the guilt of the accused (arising out of concern to convict and punish persons guilty of crime), the other side is not precisely defined. The dominant formulation refers to `the undesirable effect of curial approval’ of unlawful police conduct,[1] but the extent to which this effect concerns judicial legitimacy, protection of individual rights or the deterrence of police misconduct is not made clear. Probably all are intended to be included, but this is not made clear. The problem is that different approaches to the admission of the same item of evidence may be taken depending on which policy concern is emphasised.
469. Priority of Policies. This balancing test leaves to the judge the determination of the relative priority of the policies involved. No attempt is made to indicate a preference for one or other. This does have the positive feature of recognising that the content of each policy concern varies according to the circumstances of the case. A desire to deter illegal police misconduct is more important with respect to major rather than minor illegalities. Thus contrary police arguments for admission would be more likely to carry the day in the latter situation. But, at the same time, no guidance is given on the comparative importance of the various policy concerns and the issues relevant to them. A consequence is that the discretion will rarely be exercised in favour of exclusion. Many magistrates and judges tend to support the police and find it difficult to separate themselves from the emotive aspects of the case and the personalities involved. It is easier for an appellate court to set apart the question of the guilt or innocence of a particular accused and focus on the procedural elements of the case, to consider the case in terms of a hypothetical accused instead of the particular man whose guilt has been established. The Lucas Committee, for example, noted the close relationship that develops between magistrates and police officers thrown together in country towns.[2] It was asserted that to ask for true objectivity where a magistrate is called upon to exercise a discretion against a police officer with whom he has a friendly association and in favour of some accused he has never met is to ask altogether too much of human nature.
470. Definition and Consequences of Misconduct. A corollary of the previous points is that the present approach fails to provide either certainty or predictability with respect to what police conduct is seen as improper or with respect to the consequences of illegal or improper conduct. To some extent, this reflects a judicial unwillingness to fetter the discretion by grafting on criteria defining misconduct lest the discretion cease to be broad enough to achieve its various policy objectives. The approach also helps to avoid the technicalities which have developed within the law relating to confessions. But if the police do not comply with the rules, or if they use the exceptions unreasonably, it is argued by some that the consequences should be known to them for certain. There can of course be no absolute certainty, since the police may be satisfied that they have complied with the rules but be faced with allegations of malpractice when the matter comes to court. That is in the nature of the system. But they should know that if there was non-compliance, certain consequences will flow. Those consequences should, to some extent, depend on the purpose of the rule that has been breached.[3] It could be argued that the guidelines proffered in Bunning v Cross[4] are ineffective to achieve uniformity of application since they are incomplete, conflicting and subjective.
471. Onus on Accused not Prosecution. The ALRC argued in its Criminal Investigation Report that evidence obtained in contravention or in consequence of any contravention of any statutory or common law rule[5] should not be admissible in any criminal proceedings for any purpose unless the court decides, in the exercise of its discretion, that the admission of such evidence would specifically and substantially benefit the public interest without unduly derogating from the rights and liberties of any individual. The burden of satisfying the court that any illegally obtained evidence should be admitted should rest with the party seeking to have it admitted, ie normally the prosecution. If the burden of proving that the evidence ought not to be admitted continues to rest with the accused, the position would be unlikely to be much different from that which is now the case. Things will change if the court has to find a positive reason for exercising its discretion in favour of admissibility. The result should be the positive exercise by the court of a discretionary determination.[6]
472. Failure to Consider Availability of Alternatives to Exclusion. Alternatives to exclusion of improperly or illegally obtained evidence do exist. Consideration of their availability is relevant to the discretion in so far as it is concerned to avoid the court appearing to condone misconduct and to deter misconduct.
473. Limited Scope. An appeal court has limited scope to vary a trial judge’s exercise of a discretion. the question on appeal is whether the discretion was reasonably exercised, taking into account all relevant factors and ignoring irrelevant ones. The appeal court does not re-consider the question and exercise the discretion itself. This is in contrast to rules of admissibility, which are considered de novo. As a result, matters dealt with by a judicial discretion have less scope for substantive appeal to a higher court. Some would assert that a right of appeal against a decision of a court at first instance is in practical terms denied where the subject of the complaint is how that court’s discretion was exercised, given appeal courts’ general reluctance to interfere with an exercise of judicial discretion.
[1] Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54, 75 (Stephen and Aickin JJ).
[2] Committee of Inquiry into the Enforcement of Criminal Law in Queensland, Report, Gov’t Printer, Brisbane, 1977 (Chairman: GAG Lucas) para 134.
[3] Royal Commission on Criminal Procedure, England and Wales, Report, HMSO, London, 1981, Cmnd 8092, para 4.131ff.
[4] [1978] HCA 22; (1978) 141 CLR 54.
[5] Including all the various rules of procedure that have been proposed in this report.
[6] Australian Law Reform Commission, Report No 2, Criminal Investigation, AGPS, Canberra, 1975, para 141.
474. Requirement of Belief. Eggleston[1] argues that Sir Owen Dixon in Briginshaw v Briginshaw[2] asserted a need for ‘belief’ and that this is inconsistent with a number of other authorities.[3] If a subjective civil standard requires actual belief on the part of the fact-finder, it imposes too high a standard. In some civil cases, it would be quite proper for the fact-finder to conclude that he does not know what the facts of the case are, but that, on the evidence, they are more probable than not so that he should find for the patty whose case depends on proof of those facts. Such a conclusion would be inconsistent with the requirement of belief. An alternative interpretation of the subjective standard is that it simply requires that the fact-finder feel that the case has been proved on the balance of probabilities. Such a standard would not be a measure of belief. It would simply be a subjective measure of the probability of the events in question. But that interpretation is open to criticism. Cohen argues:
[I]n the adversary situation of the courts, where one litigant is seeking to prove a point against another, we should hesitate before accepting that a crucial type of question—the probability with which a point has been proved—is wholly outside the framework of rational controversy because it is not an objective issue. We want to be able to treat that question as one which has a right answer, irrespective of the person uttering the answer.[4]
This objection, however, could be answered by requiring the subjective assessment of probability to be a reasonable one.[5] Since there is no method for determining reasonableness except by reference to one of the objective standards, a consequence of that would be that a subjective standard differs only in form from an objective one. That being so, there is nothing objectionable in using such a subjective standard. An alternative is to state the standard in familiar terms but expressly exclude any requirement of belief.
475. Special Cases. All the existing exceptions relate to civil cases in which the courts have imposed the criminal standard of proof. In most of these, the reason for the imposition of a higher standard appears to be the serious nature of the case.[6] With rectification, the reasons are slightly different.[7] The imposition of a higher standard in that case is an aspect of the reluctance of courts to allow the meaning of written documents to be affected by oral testimony—a reluctance that is normally justified by a need for certainty in commercial transactions. But these policy considerations could be taken into account in fixing a variable standard. It is difficult to see that they are any more important in the cases in question than in other cases where the civil standard clearly applies.[8] The law in this area would be made considerably simpler by abolishing the existing exceptions.
[1] Sir Richard Eggleston, Evidence, Proof and Probability, 2nd edn, Weidenfeld & Nicholson, London, 1983, 132.
[2] [1938] HCA 34; (1938) 60 CLR 336, 362. The passage quoted was—... when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality’.
[3] See Appendix C, para 287-8.
[4] LJ Cohen, ‘Subjective Probability and the Paradox of the Gatecrasher’ [1981] Ariz St LJ 360.
[5] cf Appendix C, para 286.
[6] See Appendix C, para 297.
[7] See eg A Roberts & Co v Leicestershire CC [1961] 2 All ER 545, 552.
[8] eg cases involving allegations of fraud.
476. Confusing Terminology. The terms ‘judicial notice and ‘taking judicial notice’ are used to describe both the process by which propositions of fact and law may be established without formal proof and the acceptance of a particular proposition of law or fact.[1] They are used to describe the processes followed and materials used by juries as well as judges. The terms are also used to describe:
• the stated as well as the unstated use of general knowledge;[2]
• the use of factual and legal material known to the judge;
• the use of factual material known to the jury; and
• the use of factual material upon which the judge but not the jury may inform himself.
477. In a vast quantity of legislation the term ‘take judicial notice’ has been used in other senses. Reference should be made, for example, to legislation that has the effect of requiring the court to accept a seal or signature on its production. There is no consistency of approach in the legislation the court is directed that it may or shall act upon the material; or the court is directed that it shall take judicial notice if certain evidence is led or must be satisfied.
478. Statement of Principle too Narrow. If one accepts Justice Isaacs’ statement of the law,[3] the fact must be one known widely and accepted by ordinary people in the community. The subsequent experience however, suggests that this view is too narrow. Reference should be made to the cases where reliance has been placed on facts known within a particular locality—generally the locality within which the court is sitting—or known within a particular group in the community and accepted by that group and to High Court decisions on constitutional validity of legislation.[4]
479. Inadequate Guidance. Courts have acted on matters within their personal knowledge in some instances and refused to act on similar matters in other instances.[5] This suggests that the law supplies inadequate guidance to courts. A possible rationale of the law would be that the courts may act upon information that they know from general knowledge, their own observations or evidence in earlier cases provided they are satisfied that there are no reasonable grounds for disputing their knowledge. On this latter question, it would be relevant for the court to ask whether the fact was something that everybody knew and accepted.[6]
480. Artificial Distinctions. The courts generally have taken the view that they are not permitted to take judicial notice of matters that cannot be reasonably disputed unless they are matters known and accepted within the community. This has required courts to make artificial distinctions which it may be argued are unnecessary. For example, in Warren v Pilkington,[7] it was stated that judicial notice could not be taken of the times of sunset and sunrise but that this was ‘quite a different matter from taking notice that sunset is never as late as a certain time’. It was held that sunset at Powranna which was some 20 miles away from Launceston where the court was sitting, was never as late as a quarter to nine at night. In Preston-Jones v Preston-Jones,[8] the majority view was that judicial notice could be taken of the duration of the normal period of gestation—nine months—but could not be taken of the fact that a child born to a woman 360 days after she last had intercourse with her husband could not be his child. There is a risk of courts being seen to demonstrate a ‘cloistered aloofness’[9] and appearing to affect ignorance.[10] It is suggested that a test has been developed in terms which do not adequately reflect the reasons behind the rule. If the object of the rules relating to judicial notice is to enable the courts to act upon matters that cannot be reasonably disputed, then the courts should be allowed to act upon:
• matters so notorious as not to be the subject of dispute among reasonable men and;
• any matter capable of accurate demonstration by resort to readily accessible documentary sources of indisputable accuracy.[11]
481. Facts Relevant to the Development of the Law and Constitutional Validity. In the United States of America, when developing the common law or determining the constitutional validity of legislation, the courts have been prepared to act upon materials not formally proved and that are open to dispute. The position in Australia is unclear. The weight of authority, however, supports the view that the courts will only take into account evidence placed before them and matters of common knowledge which are accepted within the community. There have been examples, however, where the High Court has acted upon information which same might dispute although purporting to act upon facts properly noticed.[12] A disadvantage of this approach is that the parties may not find out until after the decision that the case has been decided on facts which they could have disputed given the opportunity. There is no obligation on the part of the court to advise the parties. There are also dangers for the community:
I do not believe in the long run a community can be satisfied with the latter. It is too dangerous to leave these things to the undetected assumptions of belief, knowledge and ideas of the judicial mind but we should drag them out into the light of day and if the courts, at any rate the High Court, is yoked to this task of helping a Federal community govern itself, then we must face the necessary implications.[13]
A narrow approach limited to ‘common knowledge’, however, should not be taken. It would restrict the material available to the court in a situation where the court is being called upon to make decisions which will have far reaching effects for the whole community.
482. Inappropriate Use of Term ‘Judicial Notice’. The legislation that requires the courts to act upon certain material on production of it, would be better dealt with by legislation prescribing methods of proof and dispensing with proofs.[14]
questions concerning the authenticity of a seal fall within the presumption of regularity. That presumption may be overcome by evidence that the seal is not the true seal. It is not conclusive of the effect of a seal as is necessary for a matter to be judicially noticed.[15]
Provisions requiring judicial notice to be taken of various official signatures and seals:
are in reality prima facie evidence provisions dressed up in the language of judicial notice. They can have effect only if a court already has before it a purported seal or a signature and their function is to specify the evidential effect of that seal or the signature.[16]
483. Proclamations, Regulations and By-Laws. The elaborate provisions to overcome common law requirements that domestic proclamations, regulations and by-laws be formally proved are not necessary. They are generally published in Government Gazettes or are otherwise accessible. Wigmore was particularly caustic about this situation:
but the curious laymen will ask, In most of these cases, why did not the appellate court send to the law library for the book and be done with the bother of looking up precedents to authorise and excuse not doing that’? Or why not, in oral argument, take a recess, until counsel fetched the book and marked the page’? Or even (!!!) why not call up both counsel by telephone and peremptorily order ‘habeas corpus istius libri’?[17]
Similar arguments can be applied to the proclamations, regulations, ordinances and by-laws in force in States and Territories other than those in which the court is sitting.[18]
484. Legislation Relating to Matters of History, Science and Art. The legislation[19] enabling the court to refer to books, maps and charts of authority in considering matters of public history, literature, science and art, is not limited expressly to matters which are indisputable or to situations where the issues to which they relate are not vital or not seriously in dispute. The South Australian experience, however, suggests that these provisions would be interpreted to limit them in that way. As parties can waive the rules of evidence in any event (at least in civil cases) the end result is a minimal change of the law, if any.
485. Inconsistency in Approach. In some jurisdictions, it is easier to establish the terms and authenticity of proclamations, Acts of State and other instruments of foreign countries than it is to establish those of the Commonwealth, other States and Territories and those of the forum.[20]
486. Foreign Laws. The requirement of the formal proof of foreign law should be relaxed. It is possible today for courts to establish the content of foreign law from an examination of authoritative writings kept in university and court libraries. The development of world-wide access to legal data through computer systems will further enhance the ability of courts to inform themselves about the law of other countries. While evidence by someone familiar with the law will often be needed, it should not be made mandatory as it is in many jurisdictions.[21]
487. The Judge and Jury. The different approaches taken in the legislation will presumably require the judge to take a different approach in directing the jury depending on which provision is used. For example, with proclamations, regulations and by laws, if the judge applies the legislation which requires judicial notice to be taken, he must direct the jury to apply the findings he has reached. If he applies the legislation which prescribes forms of proof, the jury must be allowed to reach its own findings.
[1] JB Weinstein & MA Berger, Weinstein’s Evidence, Matthew Bender, New York, 1982, 200-4.
[2] Examples of the latter are the meaning of words, the hours in the day, the driving of a motor car.
[3] Holland v Jones [1917] HCA 26; (1917) 23 CLR 149, 153.
[4] See Appendix C, para 271.
[5] See Appendix C, para 271.
[6] See, for example, Justice Newton in Horman v Bingham [1972] VicRp 2; [1972] VR 29.
[7] [1960] TASStRp 2; [1960] Tas SR, 6, 8-9.
[9] Commonwealth Shipping Representative v P&O Branch Services [1923] AC 191, 211 (Lord Sumner).
[10] Alchurch v Healey [1927] SAStRp 38; [1927] SASR 370, 372.
[11] EM Morgan, Some Problems of Proof under the Anglo-American Ss1stem of Litigation, Columbia University Press, New York, 1956, 61.
[12] See PH Lane, ‘Facts in Constitutional Law’ (1963) 37 ALJ 108, 109 citing Mathews v Chicory Marketing Board (Vic) [1938] HCA 38; (1938) 60 CLR 263 (economics and fiscal matters—especially Dixon J); Parton v Milk Board (Vic) [1949] HCA 67; (1949) 80 CLR 229; Australian Communist Party v The Commonwealth [1951] HCA 5; (1951) 83 CLR 1, 106; (political philosophy history), and Frost v Stevenson [1937] HCA 41; (1937) 58 CLR 528 (international affairs). The judges did not treat the information as being open to dispute. For examples of materials relied upon in developing the common law see Grant v Downs [1976] HCA 63; (1977) 51 ALJR, 198, 303, (business practice); R v Alexander (1981) 55 ALJR 335 (identification); Todorovic v Waller [1981] HCA 72; (1982) 56 ALJR 59; Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54.
[13] PD Phillips, ‘Comment’ (1949) 23 ALJ 242 on JD Holmes, ‘Evidence in Constitutional Cases’ (1949) 23 ALJ 235.
[14] See Appendix C, para 275.
[15] Federal/Provincial Task Force of Canada, Report on Uniform Rules of Evidence, Carswell Co, Toronto, 1982, 50.
[16] Law Reform Commission of Queensland, Report No 19, Evidence, Govt Printer, Brisbane, 1975.
[17] JH Wigmore, A Treatise on the Anglo-American System of Evidence, 3rd edn, Little Brown & Co, Boston, 1940, para 2572 (‘Let the book be produced’). See also Chambers J in Pikor v Fletcher [1972] TASStRp 11; [1972] Tas SR 91, 113 and Everett J in Cole v Dick [1979] Tas SR 14 at 21.
[18] Wigmore on Evidence, para 2573. See AJ Keefe, WB Landis Jnr & RB Shadd, ‘Sense and Non-Sense About Judicial Notice’ (1950) 2 Stanford L Rev 664, 672-3.
[19] South Australia, Tasmania, Western Australia and Christmas and the Cocos (Keeling) Islands—see Appendix C, para 273.
[20] See Appendix C, para 266.
[21] For detailed discussion of the issues see WB Stern, ‘Foreign Law in the Courts: Judicial Notice and Proof’ (1957) 45 Cal L Rev, 23.
488. Categories of Witnesses and Offences. Reference should be made to the very specific definition of accomplices. This can have the effect of excluding from the strict corroboration requirements which apply to such evidence, evidence likely to be subject to similar weaknesses. The issue on a trial and on appeal becomes one of whether the witness was an ‘accomplice’ and not whether the witness was under pressures that might make his evidence unreliable. Legislation in New South Wales has abolished the corroboration requirements in respect of specified classes of sexual assaults with the result that the need to comply with the existing law of corroboration warnings will depend on the charge brought rather than on the risk of unreliability of a witness’ evidence.[1]
489. What Constitutes Corroboration. A considerable body of law has come into existence about what does and does not constitute corroboration. Reference has been made to uncertainties. It is another technical and difficult area of the law and must be considered by the trial judge whenever the issue of corroboration arises and must be explained to the jury in a jury trial. ‘Corroboration’ was defined in R v Baskerville[2] as
independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it. The test applicable to determine the nature and extent of the corroboration is thus the same whether the case falls within the rule of practice at common law or within that class of offences for which corroboration is required by statute. ... the nature of the corroboration will necessarily vary according to the particular circumstance’s of the offence charged.The corroboration need not be direct evidence that the accused committed the crime; it is sufficient if it is merely circumstantial evidence of his connection with the crime.
Generally this definition justifies that which the courts have treated as corroboration. The definition is inaccurate, however, in that it refers to ‘testimony’ rather than any evidence that tends to implicate the accused. It is also too limited in that it is only appropriate to criminal cases. There are also a number of particular problems flowing from the attempt to define corroboration:
• Independence. It is well settled that a prior consistent statement of a witness is not independent evidence.[3] However, the following types of evidence have been held to be ‘independent’:
― Condition of the Complainant in a Sexual Case. There is authority that the distressed condition of a complainant in a sexual case can amount to corroboration.[4] In determining whether it does, regard must be had to factors such as the age of the complainant, the length of time between the alleged assault and when the complainant’s condition was observed, the complainant’s conduct and appearance in the interim and the circumstances existing when the distressed condition was observed.[5] Some courts have held that, if the judge allows evidence of the distressed condition of the complainant to go to the jury as possible corroborative evidence, he should warn it that, except in special circumstances, little weight should be given to such evidence.[6] But the Queensland Court of Criminal Appeal does not think such a warning is always necessary.[7]
― Physical Injury. Evidence of physical injury can amount to corroboration of the evidence of the injured person.[8]
― Other Evidence of the Same Witness. In some cases, it has been held that other evidence of the same witness is independent evidence. For example, in Jeffery v Johnson,[9] an affiliation case, the plaintiff gave evidence that the defendant was the father of her child. She also gave evidence that a letter purporting to be written by the defendant and admitting that he was the father was written in his handwriting. Lord Justice Denning held that the writing authenticated by the mother corroborated the former evidence. The better view, however, is that such evidence is not independent.[10]
On the other hand, evidence of two or more witnesses of a suspect class has been held not to be independent on the grounds that their evidence is likely to be concocted.[11]
• Lies. It is difficult to fit the lies of the accused into the definition of corroboration. It is not clear on what basis lies are accepted as corroboration. The only theory that has been offered is that they amount to an admission or consciousness of guilt, but that view has received little support.[12] It appears that the law draws a distinction between lies out of court and those in court. The former may be corroboration whereas there is authority for the view that the latter cannot be. Some detailed rules for determining whether out of court lies corroborate the evidence in question have been identified by Heydon:
a. The statement must be material, eg, a false denial of association with the victim (Creland v Knowler (1951) 35 Cr App R 48) or witnesses, or an accomplice; a false alibi; false accusations of impropriety against other suspects or against the victim (Mash v Darley [1914] UKLawRpKQB 147; [1914] 3 KB 1226 CA).
b. The statement must be false, without serious ambiguity.
c. The statement must be deliberately false, and prompted not by fear of wrong judgment but by fear of the truth. It must not be due to panic, accidental error, attempts to terminate inquiries quickly, shame, resentment at officious questioning, or a desire to avoid the discovery of other misconduct.
d. The evidence of the falsity of the statement must proceed from some source independent of the witness to be corroborated. Thus in R v King [1967] 2 QB 338, CCA; (1967) 1 All ER 379, the accused may have uttered certain lies, but the only testimony that they were lies proceeded from two boys who complained of the accused’s sexual misconduct. The boys could not corroborate themselves directly and they could not be allowed to do so by this indirect means.[13]
The main authority for the view that lies told in court cannot amount to corroboration is R v Chapman.[14] In that case, the Court of Appeal explained the different between lies in and out of court in the following way:
There is no doubt that a lie told out of court is capable in some circumstances of constituting corroboration, though it may not necessarily do so. There may be an explanation of the lie which will clearly prevent it being corroboration. ... But, in the view of this court, there is a clear distinction in principle between a lie told out of court and evidence given in the witness box which the jury rejects as incapable of belief or as otherwise unreliable. Proof of a lie told out of court is capable of being direct evidence, admissible at the trial, amounting to affirmative proof of the untruth of the defendant’s denial of guilt. This in turn may tend to confirm the evidence against him and to implicate him in the offence charged. But a denial in the witness box which is untruthful or otherwise incapable of belief is not positive proof of anything. It leads only to the rejection of the evidence given, which then has to be treated as if it had not been given. Mere rejection of evidence is not of itself affirmative or confirmatory proof of the truth of other evidence to the contrary.[15]
But the difficulty with this argument is that it overlooks the evidence that leads to the conclusion that the defendant told a lie in court. What is corroborative is, in the case of out of court lies, the evidence of the lie and, in the case of lies told in court, the evidence that leads the court to conclude that the defendant was lying. Why a distinction should be drawn between the two on the basis that one is ‘direct’ whereas the other is inferential is unclear. Provided that the evidence that leads to the conclusion that the defendant is lying is independent of the evidence requiring corroboration, it may be corroborative. According to Heydon, English decisions prior to Chapman and decisions in other common law jurisdictions cast considerable doubt on the view taken by the Court of Appeal.[16] More recently it has been held that lies told in court can provide corroboration but they must be confirmed to be lies by evidence other than that of the witness otherwise he would be corroborating himself.[17]
• Silence. There are authorities on the use of the accused’s silence. Where an accused remains silent in the face of accusations that he might reasonably be expected to answer, his conduct may amount to an implied admission and be corroborative of other evidence.[18] However, silence in the face of accusations by the police or in court can never amount to corroboration.[19] In those cases, the accused is simply exercising his right to silence. Similarly, the accused’s demeanour in court cannot amount to corroboration.[20] The accused’s silence may, however, be taken into account in determining the weight to be given to other corroborative evidence.[21]
• Opportunity. Opportunity alone cannot amount to corroboration. However, the circumstances surrounding the opportunity may be of such a nature as to lead to the inference that it was probable that advantage would be taken of the opportunity. For example, in R v Colless[22] the Court of Criminal Appeal held, in relation to a charge of carnally knowing a girl under ten, that the fact that the complainant and accused slept in the same bedroom on the night in question was corroboration of the girl’s evidence.
490. Consequences. A result of this very specific and technical approach to corroboration is a vast body of case law and legislation and much argument at trial and on appeal on technicalities and not the merits.[23] The law on that question is so complex and detailed that the jury may simply end up confused by the direction. A warning in terms of corroboration is also likely to be a source of unnecessary and technical appeals. As Wigmore says in relation to statutory provisions requiring corroboration:
... the legislative creation of a rule of law, introducing detailed refinements of definition to be applied by jurors, has merely tended to confuse them with sounds of words, and to place in the hands of counsel a set of juggling formulas with which to practice upon the chance of obtaining a new trial.[24]
There are other disadvantages:
• Warnings Given When Not Necessary. The imposition of a requirement of a corroboration warning in relation to accomplice evidence is inconsistent with the way in which other evidence is treated. Commonsense suggests that, in some cases, accomplices will have strong motives not to tell the truth. They may, for example, hope to bolster their own case at the expense of the accused or to have their punishment reduced as a reward for their testimony. But in other cases, they may make perfectly reliable witnesses. They may already have been convicted and sentenced. It may be obvious that they have no ill-feelings towards the accused, that they are repentant and clearly trying to tell the truth. The conclusion appears to be that, in some cases, there may be good reasons for thinking that the evidence of a particular accomplice is unreliable, but in other cases there may not be.[25]
The definition of ‘accomplice’ is so complex and technical that, in many cases, there is no difference in the reliability of evidence which is classified as accomplice evidence, so that it requires a warning, and evidence that is not, so that it only requires a warning as a matter of practice or no warning at all. Moreover, some evidence is arguably more unreliable than accomplice evidence and its defects much less apparent, yet a warning is not required or is only required as a matter of practice in respect of it—for example identification evidence[26] and the evidence of the alleged victim of a sexual assault.[27]
• Jury Directions. The present rules make it extremely difficult to direct a jury properly. It is for the jury to determine whether a witness is an accomplice and whether evidence is corroborative. Consequently, the judge must attempt to explain to it the complex meaning the law has attached to those terms. The result is that the jury is likely to be left in a state of confusion and the direction is likely to prove a fertile source of grounds for appeal.[28] There is a considerable amount of case law on the directions that should be given to the jury on corroboration.[29] The jury should be told that it is dangerous to convict on the uncorroborated evidence of the relevant witness but that as a matter of law it may if, after careful scrutiny of the evidence, it is clearly convinced that it is true.[30] The judge should tell the jury what corroboration is—that is, that is independent evidence of some material fact that tends to implicate the accused.[31] However, if the judge draws the jury’s attention to certain evidence which may amount to corroboration, but does not go on to explain what corroboration is, his direction will not necessarily be defective.[32] Earlier authority suggests that a list of possible corroborative evidence, while sufficient, is not necessary.[33] However, in more recent times, it has been suggested that it is a misdirection for the judge not to indicate what items of evidence are capable of being used as corroboration.[34] Some commentators now regard that as the law in England.[35] A conviction may be quashed if the judge refers to evidence as corroborative when it is not.[36] The direction on the meaning of ‘corroboration’ should be in everyday terms appropriate to the particular case.[37] Indeed, in more recent times, there has been a move away from a detailed instruction to the jury on the meaning of ‘corroboration’. The term itself need not be used.[38] However, it is not sufficient for the judge to simply warn the jury of the need for care before convicting on the basis of the relevant evidence.[39]
• Effect on other Unreliable Evidence. The effect of singling out particular categories of evidence and applying a special rule to them may be to discourage a judge from giving a warning in other appropriate cases. The overall effect is to focus attention on whether evidence falls within a particular class, not on whether it is unreliable.
• Misleading the Jury. A warning in terms of corroboration may mislead the jury. Instead of concentrating on the question whether particular evidence is unreliable, it may concentrate on the question whether that evidence is corroborated. If it is, the jury may be more willing to convict the accused than it would have been if no warning had been given. Evidence that may be unreliable should be scrutinised closely whether it is corroborated or not, for even if there is corroboration the reliability of the evidence may be crucial. But if the jury is given a corroboration warning, it (either consciously or sub-consciously) may focus its attention on the question whether there is corroborative evidence and may be more willing to convict as soon as it is satisfied that such evidence exists. Some support for this conclusion can be found in the psychological research that has been done on the effect of corroboration warnings.
(a) Hans and Brooks.[40] Three hundred and sixty eight subjects listened to one of four recordings of the judge’s summing-up of a rape trial. Each recording contained the same summary of the evidence presented in the case. Following that, the judge either:
― concluded his summing up
― gave a warning that it was dangerous to convict on the uncorroborated evidence of the complainant and a list of potentially corrobative evidence
― gave a warning, but no list
― gave no warning, but did give a list of possible corroborative evidence.
Some subjects were divided into groups of four. They were told to come to a unanimous verdict and their deliberations were tape-recorded. The remainder of tile subjects were given a transcript of one of the four summaries and asked various questions about it.[41] The main results to emerge from the experiment were as follows:[42]
― in the case of group verdicts, there was a somewhat higher percentage of guilty verdicts when a corroboration warning was given. However, the percentage was not statistically significant. The subjects who rendered individual verdicts were not affected by corroboration instructions.
― a corroboration warning did not cause the groups to discuss and evaluate the corroborative evidence in any greater detail than in cases where no warning was given.
― even where the judge gave a list of the possible corroborative evidence, the issue of corroboration was rarely discussed by the groups. However, when a list was given there was, surprisingly, less mention of the victim’s credibility.
― less time was spent by the groups discussing the victim when a corroboration warning was given.
(b) The London School of Economics Jury Project.[43] That project was primarily concerned with the effect of different directions on the standard of proof on the verdict of individual subjects. But in a number of cases, the subjects were given the same instructions on the standard of proof, but some were given a corroboration warning in relation to the evidence of a complainant in a rape case and instructions on what items of evidence amounted to corroboration while others were given no instructions on corroboration at all. The results showed that the willingness of the subjects to convict was markedly greater when the corroboration warning was given.
It is not possible to draw any firm conclusions from the psychological research alone. As Sealy and Cornish themselves stress,[44] the number of subjects (40) used in their experiment was too small to yield reliable results. In both cases, the experimental design was so far removed from normal court procedures that it is doubtful if the results can be applied legitimately to the corroboration warnings given in real trials. That is particularly so in the Canadian experiment, where the subjects did not even hear a transcript of the case on which they asked to reach a decision. Moreover, it may be that much depends on the particular wording of a direction on corroboration, and that may vary so much in actual cases, that the results obtained from using standardised directions tells us nothing about the effect of the directions in real cases. Nonetheless, the results suggest that there may be some justification for the view that corroboration warning may distract the jury from a consideration of the evidence requiring corroboration.
• Unfair Discrimination. The existing requirements of corroboration are sometimes seen as unfairly discriminatory against particular types of witness. That is particularly so in relation to the requirement of a corroboration warning in respect of the evidence of a victim of a sexual crime. As one American writer put it:
That the testimony of the female person should be examined with caution is the bottom line in all rape cases from the moment they are reported to that rarer moment, if ever, when they are actually brought to trial. The issue goes deeper than ‘oath against oath’. It is based on the cherished male assumption that female persons tend to lie.[45]
The issue of discrimination is clearly one that influenced the abolition in New South Wales and Victoria of requirements of corroboration in most sexual cases:
Judges have commonly warned juries against the dangers of conviction of rape on the uncorroborated evidence of a woman. That there might be a rule of law or practice to this effect is unacceptable. No doubt members of the police force would be justifiably upset if Parliament were to legislate a warning against the dangers of convicting on the uncorroborated evidence of a police officer.
Any other class of persons, such as Protestants, redheads or lawyers would be equally upset at a special practice of judges warning juries that members of such-and-such a group are inclined to be liars. The general practice in the criminal law is to leave it to the judge to make whatever comments he sees fit on the credibility of evidence, provided always that he tells the jury that it must make the final decision. Often a judge will say to a jury, ‘It is a matter for you to decide, but I found the evidence of X hard to believe’; or ‘I found the evidence of X very credible’. If such a system is to continue, the law should not discriminate against sexual assault victims by automatically branding them as untrustworthy.[46]
The argument based on discrimination is not conclusive, but it does, it is submitted, suggest that any doubts about the need for a special rule in sexual cases should be resolved in favour of the view that no special rule is required.
[1] In other cases, the trial judge is not prevented from giving corroboration warnings if he thinks it appropriate.
[2] [1916] 2 KB 658, 667.
[3] See, eg R v Christie [1914] UKLawRpAC 20; [1914] AC 545, 557; Fade v R [1924] ArgusLawRp 24; (1924) 34 CLR 154, 157.
[4] R v Redpath (1962) 46 Cr App R 319; R v Byczko (No 2) (1977) 17 SASR 460; R v Richards [1965] Qd R 354; R v Flannery [1969] VicRp 72; [1969] VR 586; R v Fox (1982) 7 A Crim R 28 (Tas CCA); R v McDougall [1983] Qd R 89.
[5] R v Flannery [1969] VicRp 72; [1969] VR 586, 591.
[6] R v Knight [1966] 1 WLR 230; R v Flannery [1969] VicRp 72; [1969] VR 586; R v Byczko (No 2) (1977) 17 SASR 460.
[7] R v McDougall [1983] Qd R 89, 91. The distressed condition was observed almost contemporaneously with the offence.
[8] Fromhold v Fromhold [1952] ITLR 1522; R v Trigg [1963] 1 All ER 460; R v Colless (1964) 84 WN (NSW) 55; R v Lindsay (1977) 18 SASR 103.
[10] See Crutchfield v Lee [1934] VicLawRp 14; [1934] VLR 146; See Kau Wong v R [1983] WAR 80; Law Reform Commission of NSW, Discussion Paper, Corroboration, Unpublished, 1981, para 16.3.
[11] The problem most frequently arises where two or more accomplices give evidence against a fellow accused: See DPP v Kilbourne [1973] AC 729, 747-8 (Lord Hailsham). See also R v Johannsen (1977) 65 Cr App R 101. On the problem of mutual corroboration, see Appendix C, para 308.
[12] See PK Waight & CR Williams, Cases and Materials on Evidence, Law Book Co, Sydney, 1980, 829.
[13] JD Heydon, Cases and Materials on Evidence, Butterworths, London, 1975, 103-4. See also JD Heydon, ‘Can Lies Corroborate?’ (1973) 89 LQ Rev 552. This analysis has been adopted by the NSW Court of Criminal Appeal in R v Buck (1983) 8 A Crim R 208, 214.
[15] id, 783-4.
[16] Heydon, 108.
[17] R v Lucas (1981) 3 WLR 120, 124. The court specified four criteria to be satisfied.
[18] See Ex parte Freeman (1922) 39 WN (NSW) 73; cf Wiedemann v Walpole [1891] UKLawRpKQB 138; [1891] 2 QB 534. For a general discussion on the effect of silence, see JD Heydon, ‘Silence as Evidence’ (1974) 1 Mon L. Rev, 53.
[19] Tumahole Bereng v R [1949] AC 253; R v Whitehead [1929] KB 99; Hall v R [1971] 11 All ER 322; cf R v McKelvey [1914] QSR 42.
[20] Montgomery v Counsell; ex parte Counsell [1956] Qd R 120.
[21] Cracknell v Smith [1960] 3 All ER 569, 571 (Lord Parker CJ). For discussion, see JA Gobbo, D Bryne, JD Heydon, Cross on Evidence, 2nd Aust edn, Butterworths, Sydney, 1979, para 9.40.
[22] (1964) 84 WN (Pt 1) (NSW) 55. See also R v Etherington (1982) 32 SASR 230, 238, 244.
[23] The deficiencies of ‘the law’ have resulted in the Supreme Court of Canada abolishing all the rules of corroboration concerning accomplices: Vectrovec v R (1982) 136 DLR (3d) 89. See also A Zuckerman, ‘Corroboration: Judicial Reform in Canada’ (1984) 4 Oxford Journal of Legal Studies 147.
[24] JH Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at Common Law, 3rd ed, Little Brown & Co, Boston, 1940, para 2057.
[25] According to the Criminal Law Revision Commission of England, that view was shared by ‘the great majority’ of those who replied to the Committee’s request for comments: Criminal Law Revision Committee of England, 11th Report, Evidence (General) Cmnd 4991, HMSO, London, 1977, para 184. Note: When the present rule was devised, parties were generally incompetent witnesses, but accomplices could, by statute, purchase immunity from punishment if they testified against others. In those circumstances, all accomplices had a strong incentive to lie and the risk of convicting an innocent person, who could not give evidence on his own behalf, was great: See Law Reform Commission of NSW para 9.2ff, 47.
[26] See above. para 419-21.
[27] The victim of a sexual attack may be so confused and affected by hysteria that there is a serious risk of mistaken identification; the complainant may be suffering from some sexual fantasy or may be a psychopath taking vicious pleasure from what he or she does: the complaint may be made as a result of remorse after consensual intercourse, or in order to placate parents or a spouse or de facto spouse; the complaint may be made out of spite or as part of a blackmail scheme. For details, see Law Reform Commissioner of Victoria, Report No 5, Rape Prosecutions, (Court Procedures and Rules of Evidence) Govt Printer, Melbourne, 1976, and Appendix C, para 302.
[28] Federal/Provincial Task Force of Canada, Report on Uniform Rules of Evidence Carswell Co Ltd, Toronto, Canada, 1982, para 27.2(i).
[29] For discussion, see Cross on Evidence, para 2.8-2.10.
[30] See, eg, R v Turnsek [1967] VicRp 69; [1967] VR 610, 615 (Smith J)
[31] R v Clynes (1960) 44 Cr App R 158.
[32] R v Adams and Ross [1965] Qd R 255, 261-2 (Gibbs J).
[33] R v Matthews and Ford [1972] VicRp 1; [1972] VR 3; R v Walczuk [1965] QWN 50; R v Clynes (1960) 44 Cr App R 158.
[34] R v Byczko (No 1) (1977) 16 SASR 506, 526; R v Byczko (No 2) (1977) 17 SASR 460, 463.
[35] See, eg, R Munday, ‘Juries and Corroboration’ [1980] New LJ 352.
[36] R v Thomas [1959] 43 Cr App R 210.
[37] R v O’Reilly [1967] 2 QB 722, 727 (Salmon LJ); DPP v Hester [1973] AC 296, 328 (Lord Diplock).
[38] See R v O’Reilly [1967] 2 QB 722, 727 (Salmon LJ); DPP v Kilbourne [1973] AC 729, 741 (Lord Hailsham).
[39] R v Perry [1970] 2 NSWLR 501, 505.
[40] See VP Hans & N Brooks, ‘Effects of Corroboration Instructions in a Rape Case on Experimental Juries’ (1977) 15 Osgoode Hall LJ 701.
[41] It is not clear from the article whether a tape recording of the summing-up was also played to these subjects.
[42] id, 708-11.
[43] See AP Sealy & WR Cornish, ‘Juries and the Rules of Evidence’ [1973] Crim L Rev 208.
[44] id, 220.
[45] S Brownmiller, Against Our Will: Men. Women and Rape, Secker & Warburg, London, 1975, 369. Note: the requirements of corroboration apply whether the complainant in a sexual case is male or female: R v Nation (1954) SASR 189: R v Ridgeway (1983) 2 NSWLR 19.
[46] Parliamentary Debates (NSW), Legislative Assembly, 18 March 1981, 4773 (the Hon FJ Walker, Second Reading of the Crimes (Sexual Assault) Bill).
491. Inflexibility of the Law. The requirement of evidence authenticating writings in all cases has been strongly criticised:
One can only speculate as to the amount of testimony elicited annually for the purpose of ‘authenticating’ private writings which are ultimately to be offered in evidence. It can hardly be doubted, however, that the total is substantial. Much of this testimony is of a purely pro forma nature and will never be contested. Moreover, it is frequently of a type so demonstrably unreliable that it has been questioned whether it should be admitted even for ritualistic purposes. The underlying compulsion for the production of such evidence is, of course, supplied by the familiar doctrine that ‘a writing does not speak for itself’, but must be authenticated by extrinsic evidence. This rule has been the object of frequent and sometimes heated criticism for over a hundred years, yet it still enjoys almost universal recognition.[1]
Parties are compelled to seek admissions from other parties as to their authorship of the writing by interrogation or notice to admit. Witnesses must be found and called to authenticate writings where there is no real dispute. There are occasions where the surrounding circumstances should be sufficient to warrant admitting the writing—for example, a letter written in reply to one sent by the party seeking to tender it.[2] There will be occasions where the circumstances are such and the means of opposing party to disprove are so superior that it would be reasonable to admit the evidence. For example, why not admit in evidence a can alleged to have contained offending peas which bears a label naming the defendant and certain identifying letters and numbers which only the manufacturer will understand?[3] Why not admit against a party, without authentication, a letter bearing a letterhead apparently referring to that party—on the rare occasion when it is a forgery, or refers to someone else of the same name, the party can adduce evidence, expert or otherwise, to challenge its authenticity?[4]
492. As to tape recordings, there is authority that the `efficiency and capacity’ or ‘competence and capacity’ of the equipment must be demonstrated by expert testimony if the opposing party requires it.[5] The trustworthiness of modern sound equipment should, however, now be judicially noticed like speedometers, thermometers, etc.
493. The problem of the inflexibility of the law is demonstrated by the plethora of legislation dealing with the authentication of public documents and the legislation or rules found in some courts permitting agreements produced from proper custody to be admitted without authenticating evidence in proceedings brought to recover debts owed under the agreement.[6] It is also demonstrated by practices that have developed such as parties agreeing on files of correspondence in complex commercial litigation. This is another situation, however, where the rules of evidence can ‘lie in wait’.
494. The inflexibility is seen in other areas—such as evidence from scientific or technical instruments. For example, the tachograph is an instrument which is installed in motor vehicles and which records variations in the speed of the vehicle in relation to the distance travelled. It has been used and recognised overseas as trustworthy for some time. It can provide unarguable evidence in motor accident cases about speed at any given distance before impact. The common law requires that the trustworthiness of the type of machine and trustworthiness of the machine at the time in question be established. Under existing law with it restrictions on judicial notice,[7] it is necessary to call someone expert in the system—in this case, one person in Australia—to give the necessary evidence. The judicial notice proposals would ameliorate this situation to some extent. Permitting evidence to be given by affidavit would also help. Special facilitating legislation, however, has its drawbacks. Breathalyser legislation for example, has given rise to many appeal points totally lacking in merit which a more flexible system of authentication could avoid.[8]
495. Authentication as an Exclusionary Rule. The courts appear to treat the authentication rules as setting up conditions which must be satisfied if the evidence is not to be excluded. Thus we find on occasions a close examination of statements in previous cases and elaborate rules about the evidence to be led[9] when the issues are limited and the court should be free to draw inferences from the surrounding circumstances, the proferred evidence and where appropriate, take judicial notice of relevant facts.
496. This view of the law may explain why courts and parties confronted with evidence produced by a machine have debated admissibility by asking whether the evidence is hearsay and whether legislation designed to provide exceptions to the hearsay rule can be used.[10] It is suggested that on proper analysis the requirements of authentication should be seen as an aspect of relevance—the evidence is directed to establishing a link between the proferred evidence and the facts in issue.[11]
497. Standard of Proof. The approach taken at times of requiring proof to the satisfaction of the trial judge imposes too high a standard. The authentication of the proferred evidence is required initially to establish its relevance. The question for the judge should be whether it would be open to a jury to accept the evidence.[12]
498. Writings. As to legislation deal with the authentication of writings, the words of the Canadian Task Force are apposite:[13]
The problem with the law in this area is that provisions have grown like Topsy. Approximately one quarter of the provisions of the Canada Evidence Act deal with authentication of documents, yet despite their number the sections fail to cover the topic adequately. They contain an enumeration of specifics, with no guidance as to the general principles of authentication. Because they have not been thought through as a coherent statement of principles, they are also duplicative and disorganized. The Task Force unanimously agrees that the sections need to be re-drafted.
For specific criticisms, reference should be made to the discussion above particularly of legislation relating to judicial notice and also that relating to the hearsay and secondary evidence of documents rules.
499. Computer Produced Evidence. Reference should be made to the criticisms made above of Australian legislation in its application to hearsay evidence. It is ironic that the specific computer legislation designed to facilitate proof has been found to be more stringent than the common law.[14] As to the business records approach,[15] it is arguable that it has not facilitated the admissibility of evidence produced by computer and other devices in that it does not apply where the information produced is based on information supplied by any person—most `recording, measuring, counting’ and `identifying’ devices operate on the basis of information supplied by persons. It is also unsound and confusing to treat information produced by non-human means as coming within the control of hearsay proposals rather than relevance proposals.
500. Comparison of Handwriting. At common law a non-expert witness, who was familiar with a person’s writing was allowed to identify disputed writing as being made by that person. But neither an expert nor a layman was permitted to identify disputed writing by comparison of it with proved genuine writing with which he was unfamiliar.[16] The jury was allowed to compare disputed writing with other genuine writing, provided that genuine writing was already in evidence.[17]
501. In all jurisdictions legislation based on English reforms was passed to rectify this situation. The provisions vary but are to the effect of s 36 Evidence Act 1898:
Where any writing or signature is in dispute, the same may be compared with any other writing or signature, proved to the satisfaction of the Court to be genuine; and such last-mentioned writing or signature, together with the evidence of witnesses respecting the same, shall be evidence of the genuineness or otherwise of the writing or signature in dispute.[18]
The legislation, however, is deficient. There is authority that if the disputed writing is lost, a witness cannot testify to a comparison of a photocopy of it with the proved genuine writing.[19] In addition, if the disputed writing is lost, a witness cannot from his memory of it make a comparison with the genuine writing.[20]
[1] JW Strong, ‘Liberalizing the Authentication of Private Writings’ (1966-7) 52 Cornell LQ 284, citing FE Inbau, ‘Lay Witness Identification of Handwriting’ (1939) 34 Ill L Rev 433, 441 n 13: Hartzell v United States, 72 F 2d 569, 578, (cert denied, 293 US 621 (1934)); also Annot, 131 ALR 301 (1941) for a collection of cases on the doctrine; see also the quotation of Jeremy Bentham in JH Wigmore, A Treatise on the Anglo American System of Evidence, 3rd edn, Little Brown & Co, Boston, 1940, vol 7 para 2148, 606 n 1. Note also McCormick’s description—‘the common law attitude of agnosticism as to the authorship of documents’—CT McCormick, Cases and Materials on the Law of Evidence, 3rd edn, West Publishing Co, St Paul, 1956, 388. See also R v Van Vreden (1973) 57 Cr App R 818.
[2] Strong, 292.
[3] Excluded in Keegan v Green Giant Co 150 Me 110, 283, A 2d 599 (1954) cited Strong, 292.
[4] Strong, 289ff.
[5] Conswell v Tapfield [1981] 1 NSWLR 595, 598-9; cf English authorities above.
[6] See eg County Court Rules(Vic) O 23, r 10; Magistrates’ Court Rules (Vic) r 124(5).
[7] See also doubts about its application in Zappia v Webb [1974] WAR, 15.
[8] eg, Motor Traffic (Alcohol and Drugs) Ordinance 1977 (ACT); Gosden v Billerwell [1980] FCA 84; (1980) 31 ALR 103; R v Dobson (1979) 29 ACTR 29; Bradley v Armstrong (19811 36 ACTR 3; Ziegler v Dawson (1981) 37 ACTR 29; Forace v Akker, unreported, ACT Supreme Court (30 November 1982) (Kelly J).
[9] eg Mehesz v Redman (No 2) (1980) 26 SASR 244; R v Wood [1982] Crim L Rev, 667.
[10] eg The Statute of Liberty [1968] 2 All ER 195; R v Pettigrew (1980) 71 Cr App R 39; JC Smith, ‘The Admissibility of Statements by Computer’ [1981] Crim L Rev, 387; C Tapper, Computer Law, 2nd edn, Longman, London, 1982, 206ff. For argument that machine produced evidence is hearsay, see P Pengilley, ‘Comment: Machine Information: Is it Hearsay?’ (1982) 13 MUL Rev 617.
[11] While it is possible to regard the issue of ‘authenticity’ as an issue separate from relevance—ie establish authenticity and then relevance—there is little point in doing so. Why seek to authenticate a document that is not relevant’? Further its relevance will depend upon it being what the party claims it to be. The issues, in the context of a trial are not separate. The issue is discussed further, see below, para 979-84.
[12] See below, para 982-3 and Appendix C, para 279.
[13] Federal/Provincial Task Force of Canada, Report on Uniform Rules of Evidence, Carswell Co Ltd, Toronto, Canada, 1982, para 29.5.
[14] R v Weatherall [1981] 27 SASR 238 and Mehesz v Redman (No 2) (1980) 26 SASR 244—where the evidence available did not satisfy the legislation but did satisfy the common law.
[15] See above. para 343-4.
[16] The Fitzwalter Peerage (1843) 10 CI & F 193.
[17] Griffth v Williams (1830) 1 Cro and J 47. Genuine writing could not be tendered for the purpose of comparison alone: Doe d Perry v Newton [1836] EngR 988; (1836) 5 Ad & El 514; Adami v R [1959] HCA 70; (1959) 108 CLR 605, 616.
[18] In jurisdictions other than New South Wales, the Northern Territory and the ACT the legislation states expressly that a comparison may be made by witnesses. See Appendix C, para 281.
[19] McCullough v Munn [1908] 2 IR 194; Ex parte Sampson; Re Governor of Her Majesty’s Penitentiary at Malabar (1966) 83 WN (Pt 2) 405. Note argument to the contrary—JH Buzzard, R May, MN Howard (ed) Phipson on Evidence, 12th edn, Sweet & Maxwell, London, 1976, para 317.
[20] Arbon v Fussell (1862) 3 F and F 152; Phipson on Evidence para 321—at least, if the witness had not compared them out-of-court before the disputed writing was then lost.
502. Rules Relating to Witnesses. The foregoing chapters record serious deficiencies in all areas of the laws of evidence. The rules relating to the psychological competence of witnesses and their legal competence and compellability render witnesses competent and compellable who should not be and render witnesses incompetent and non-compellable who should be. Forms of oath are prescribed that are offensive or inappropriate and result in practical difficulties. The lack of application of rules of evidence to unsworn statements of the accused can result in lengthy irrelevancies, hearsay and scurrilous attacks on prosecution witnesses. The inability of the trial judge, in some jurisdictions, to comment to the jury on the failure of the accused to give sworn evidence places the trial judge in an impossible position and can result in trials miscarrying. There are deficiencies in our approach to the presentation of evidence by witnesses. There is a reluctance to let witnesses give a free report. The use of interpreters is unduly restricted. Where a witness refreshes his memory from a contemporaneous document, the law prevents it being tendered in evidence although it is likely to be more accurate than his evidence unless the opposing party makes the tactical error of cross-examining too widely on the document. In many situations reading from the document would be sensible but the courts generally do not have the power to allow this—it depends on the tactical decision of the opposing party on whether to object. There is no general safeguard requiring the production of documents used to revive memory out of court. Instead an artificial distinction is drawn—if the memory was not revived, the document must be produced, if it was revived, it need not be produced. The rules also contain a trap for the uninitiated—if a party calls for the other patty to produce a document and inspects it, the other party can force that party to tender it. There is no valid basis for this rule. There is a tendency in practice to treat discretionary powers vested in the trial judge as hard and fast rules—for example, the use of leading questions in examination in chief and cross-examination. The law takes an unfortunately rigid and restricted approach to the question of whether and in what manner a party can cross-examine witnesses it has called to give evidence—the rules relating to hostile witnesses. This results in witnesses not being called, evidence not being tested and makes it easier for the witnesses of one party to be suborned. The law gives inadequate protection to witnesses under cross-examination.
503. Rules of Admissibility. The courts in their differing definitions of what is relevant evidence have failed to articulate the factors that must be considered and balanced. The rule that relevant evidence is admissible and irrelevant evidence inadmissible is the major rule controlling what evidence is received. To leave the decision to ‘gut’ reaction is not good enough. All rules of exclusion are open to criticism. The rules controlling the admission of secondary evidence of documents are too inflexible and out of date. Legislation enacted to overcome these problems is too long, complex and impractical and fails to address the real issues. The hearsay rule and its common law and statutory exceptions are remarkably complex, exclude probative evidence and fail to give the appropriate protections when needed. As to opinion evidence, the alleged rule excluding lay opinion evidence has so many exceptions that it is doubtful whether the rule exists. The rule results in the inappropriate interpretation of witness’ evidence and unnecessary distortion. The fact/opinion distinction is arbitrary. If rules are to be maintained, the distinction may be unavoidable but the consequences can and should be minimised. The expert witness exception is open to serious criticism. Expertise based on experience should be sufficient to qualify an expert. The exclusion of evidence of experts on matters of common knowledge and ultimate issues excludes valuable evidence—as is demonstrated by the ‘exceptions’ and judicial restatements that continue to emerge. Steps should be taken to ensure that the courts do not apply the Frye test—the requirement that the expertise be in a recognised field of expertise and one applying accepted theories and practices.
504. The rules relating to the admissibility of admissions and confessions are of great significance; they protect civil liberties. They are deficient, however, in that the primary rule that an admission or confession must be ‘voluntary’ is difficult to understand and apply. ‘Voluntariness’ as defined by the courts is a concept that does not address the subtle psychological pressures which may cause untrue confessions to be made. A major cause of delay and cost in the criminal trial system is the time spent investigating whether the accused did confess as alleged and the circumstances in which the alleged confession was made. The law has not been but can be framed to encourage the use of recording devices which would significantly reduce the problem. The discretion to exclude admission on unfairness grounds is difficult to understand and apply and, while comforting to have, gives little protection. In relation to evidence obtained illegally or improperly, there is a need to reorder the priorities and give more guidance in the application of the existing discretion.
505. Other rules of admissibility are open to serious criticism. The common law does not allow evidence of a conviction to be used to prove the facts on which it is based, resulting in the exclusion of highly probative evidence and the relitigating of issues. Attempts have been made to reform the law but these too are unsatisfactory. The law’s approach to the admissibility of evidence of character, whether relevant to the issues or the credibility of witnesses is based on assumptions about human personality that have long been discredited by psychological research. Artificial reasoning is employed, on the traditional view, in deciding whether to admit against an accused evidence of prior misconduct—whether it is possible to demonstrate the relevance of the evidence for reasons other than the propensity it shows however specific and remarkable that propensity may be. The law in that area may also be criticised for not giving more guidance. As to evidence relevant to the credibility of witnesses, the rules permit too much cross-examination, insufficient scope for rebuttal of the denials of the witness and also allow irrelevant rebuttal evidence to be given—for example, prior convictions for offences that shed no light on whether the witness is likely to be telling the truth. The rules on the cross-examination of the accused as to his character are also unsatisfactory. While the law has developed rules to control the admissibility of unreliable and dangerous evidence, it has failed to do so for eyewitness identification evidence.
506. The rules of privilege can exclude valuable evidence. In some instances (privilege against self-incrimination, client-legal privilege and statutory doctor/patient and priest/penitent privileges for example) the privilege has been expressed in terms that prevent it addressing the policy objectives. In other situations where a witness is confronted with the choice of revealing confidential information or possible contempt of court charges, the law provides no regime to resolve the issue. The judge must improvise or exercise discretionary powers such as those relating to punishment for contempt of court.
507. Aspects of Proof. In relation to rules that deal with various aspects of proof, those dealing with matters that need not be proved are confusing, narrow, give rise to artificial distinctions and prevent courts acting in a sensible fashion. The rules requiring corroboration are extremely technical and misleading and give rise to much argument in practice. They are also seen as unfairly discriminatory. The rules relating to authentication and identification of evidence are too inflexible. In particular, it should be possible to draw inferences relevant to the authentication of a document by examining the document. It is also incorrect to treat rules in this area as exclusionary rules. They should be treated as an aspect of the requirement of relevance.
508. Need for Reform. The material in the preceding chapters raise criticisms that must be addressed. On their own they would warrant reform of the law. In addition, as demonstrated in the previous Part of the report and, in more detailed fashion in Appendix C, there is an unacceptable level of inconsistency and uncertainty in the law. The next major issue for consideration is the appropriate means of addressing these problems. This issue is taken up in the Part of the Report that follows.
509. The Purpose of the Draft Bill. Draft legislation has been prepared to test the feasibility of a uniform, comprehensive and reformed evidence law for Federal and Territory courts.[1] It comprises a Bill (draft Evidence Bill 1984)[2] and a small set of regulations to be made under the Bill (draft Evidence (Notice of Hearsay) Regulations). The legislation is not put forward as the settled views of the Commission. This report is an interim report, and the legislation provides a focus for discussion of the areas in which necessary reforms can be made and the suitability of the reforms proposed. After publication of this report, the Commission will be engaging in extensive consultations with the profession and the public. After they are completed, the Commission will in the light of comments and submissions that have been made, make a final report to the Attorney-General.
510. Scheme of Proposals. Comprehensive draft legislation has been prepared. It deals with the topics thought to be properly within or incidental to the laws of evidence. It is divided into four main parts together with preliminary and concluding parts:
• Witnesses. In this part of the draft Bill,[3] the rules relating to competence and compellability, sworn and unsworn evidence, and the questioning of witnesses are set out. The third topic, the questioning of witnesses, does not purport to be an exhaustive statement of the law. The remaining parts are.
• Rules of Admissibility. In this part of the legislation,[4] the rules that control the admissibility of items of evidence are set out. It is intended to be an exhaustive statement of the law. It follows what is, on the better view, the existing structure of the law. The rules will apply at each stage of a witness’ evidence—including cross-examination.[5] The legislation commences with the basic rule on which the operation of this part of the Bill rests—all relevant evidence is admissible except as otherwise provided in the Bill. All irrelevant evidence is not admissible. There then follow provisions dealing with different types of evidence. In each case, there is a primary rule which operates to exclude evidence of that type and in each case exceptions to that exclusionary rule are set out. The categories of evidence dealt with are documents, hearsay evidence, opinion evidence, admissions, judgments and convictions, character and conduct, identification evidence, privileged communications, evidence included in the public interest the disclosure of which may endanger State interests, evidence of statements made in settlement negotiations, and evidence of reasons for decision of judge or jury. Finally the legislation which contains several discretions to exclude evidence. These to a large extent reflect existing law and comprise:
(a) Relevance Discretion. A discretion is included which reflects the implicit discretion contained in the existing rule of relevance. It requires a balancing of the probative value of the evidence and the disadvantages that may flow from its admission (consumption of time, prejudice, confusion and misleading effect).
(b) Illegally Obtained Evidence. A discretion is proposed to deal with evidence obtained illegally or improperly.[6]
(c) Prejudice/Probative Value Discretion. The legislation includes the present discretion to exclude evidence led against an accused person where the prejudicial effect outweighs the probative value.
As at present, the rules of admissibility are expressed in terms that relate to evidence and not the questions put to adduce the evidence. Objections relying on the rules of admissibility will be determined, as at present, in the light of the evidence that would be elicited by the question. It is assumed that in the absence of any provisions to the contrary the present approach to the application of the rules of admissibility will continue—ie, it will be for the parties to invoke the rules by objecting to the admission of evidence.[7]
As under existing law, the admissibility of a piece of evidence should be determined by first asking whether it is relevant. If the answer to that question is in the negative it should be excluded. If the answer is in the affirmative, the party against whom it is led would then have to direct the court’s attention to one of the exclusionary rules set out in the legislation. The evidence, for example, may involve opinion and hearsay. It will be excluded unless it comes within one of the exceptions in each of the divisions dealing with such evidence. In cases where the relevance of evidence is tenuous, the courts will be able to exercise the discretion described above as the ‘relevance’ discretion. This is done at present in those instances where courts require sufficient relevance before admitting evidence. A point to note about the order of the proposals is that the rules dealing with the admissibility of evidence of the contents of documents are placed ahead of the other rules. The reason for this is that under existing law those rules are not strictly rules of admissibility but describe a mode of proof. In practice, however, they appear to be applied as if they are rules of admissibility. The rules will, however, operate before any of the other exclusionary rules and therefore have been included first. As under existing law, the legislation does not make a ruling as to the admissibility of evidence final. The unsuccessful party may in the light of further evidence renew the objection or the application to have evidence admitted.
• Aspects of Proof. In this part of the legislation,[8] a number of topics are dealt with—judicial notice (rules which define that which does not have to be formally proved), and rules relating to the authentication and identification of evidence including presumptions to facilitate proof, standard of proof and corroboration.
• Miscellaneous and Safeguard Provisions. In this part[9] are included provisions which will apply to all or some of the preceding provisions. They include provisions
― enabling inferences to be drawn from the evidence tendered as to any matter which must be established for the purpose of applying the provisions of the Act;
― enabling the proof of formal matters by affidavit;
― enabling the waiver of rules of admissibility by the parties and conferring a power upon the judge in civil proceedings, to dispense with those rules; and
― procedures for determining the admissibility of evidence.
There are safeguards to protect parties against whom evidence may be led under the more relaxed provisions provided for hearsay evidence, secondary evidence of documents and authentication and identification. Provisions are also included which extend the existing powers on discovery and inspection to cope with modern technology and to provide safeguards under the previously mentioned provisions. Finally this part deals with the inspection and use of evidence outside the court.
511. Approach to Formulation of Proposals. The approach taken has been to identify the law at present operating in federal and Territory Courts and (in the light of the policy objectives previously stated) to identify deficiencies in that law. In some cases the deficiencies are such that it is necessary to formulate a new approach.[10] The view has been taken, however, that it should not be assumed, as the starting point, that the existing law of evidence is wrong. To do otherwise begs the question raised in the terms of reference of whether the law should be reformed. A case must be made out for change before reform is considered. In preparing the proposals the Commission has been guided by the principles described above.[11] The proposals represent a significant rationalisation of the existing law and provide a systematic treatment of the subject. They reduce the uncertainties and address the criticisms identified elsewhere. At the same time, anyone familiar with the laws of evidence will find much that is familiar. The order of the parts of the legislation has been organised so that they reflect the order in which issues are likely to arise in the trial—the competence and swearing of a witness and how he may be questioned; the admissibility of the evidence given by the witness; and the consideration of that evidence.
512. Relationship of State and Territory laws. A federal court sitting in a State or Territory applies the laws of evidence and procedure that apply to State or Territory courts sitting in those parts of Australia.[12] In addition, many federal laws make provision of an evidentiary kind: the chief of these are the Evidence Act 1905 and the State and Territorial Laws and Records Recognition Act 1901.[13] The Commission has not, as yet, exhaustively examined specific federal legislation. It is necessary, in any event, to reach decisions on what should be the laws of general application before critically examining specific legislation. Accordingly, existing federal laws dealing with evidence are preserved: particular amendments will be made where this is called for. The draft Bill will have effect subject to inconsistent federal laws. On the other hand, State and Territorial laws that, by virtue of the Judiciary Act 1903, are binding on federal courts should not override the draft Bill. The need for certainty and uniformity dictate that the draft Bill should prevail over inconsistent State and Territory laws[14] in proceedings in the relevant courts.
513. Courts. The Commission’s Reference is restricted to federal courts and courts of the Territories. These have been set out earlier in this report.[15] In brief, the federal courts are the High Court of Australia, the Federal Court of Australia and the Family Court of Australia. The draft Bill extends to these courts in whatever part of Australia they are sitting. As to the courts of the Territories, two of these require special mention. The Northern Territory (although, constitutionally speaking, it remains a Territory subject to the power of the Commonwealth Parliament under the Constitution s 122) has been granted self-government.[16] Since 1978, executive authority in most matters (including the administration of justice) has been exercised by Territory Ministers. In view of this, it would be inappropriate for the draft Bill to apply to Northern Territory courts. The situation in respect of Norfolk Island is in many respects similar. A more limited form of self-government has been accorded that Territory.[17] The Commonwealth has undertaken not to extend its laws to Norfolk Island without prior consultation with the Island administration. The draft Bill has therefore been drawn on the basis that it does extend to bind Norfolk Island courts, and the Commission will consult with the Island administration on this matter.
514. Proceedings. The draft Bill applies in all proceedings in federal courts and in courts of those Territories.[18] It therefore applies whenever evidence is to be adduced, including in bail applications, interlocutory proceedings and those heard, not in open court but in chambers.[19] It applies, not only in the ordinary trial situation (whether civil or criminal) but also in matters such as bankruptcy proceedings.[20] There are transitional clauses included to deal with hearings commenced but not concluded before the commencement of the draft Bill.[21]
515. Giving, etc, Evidence. Before considering the detail of the proposals, it is appropriate to make clear the sense in which certain words are commonly used in the draft Bill, and to explain some of the commonly used terms. Not all the definitions appearing in cl 3 of the draft Bill are explained here. Some are explained later, in the detailed consideration of the proposals to which they relate. The Bill is drafted on the basis that a witness in the witness box is ‘giving’ evidence. The party who is questioning him (whether in examination in chief or in cross-examination) is ‘adducing’ the evidence that the witness is giving.[22] It is the court’s function to admit or refuse to admit the evidence so adduced.[23]
516. Meaning of ‘Proceeding’. The draft Bill classifies proceedings in three ways:
• Legal or Administrative Proceedings. This includes all proceedings in all courts, of whatever kind. It includes proceedings in State, Territory and foreign courts and proceedings such as courts-martial and coronial inquiries;[24]
• Proceedings to which the Draft Bill Applies. This class of proceedings comprises all proceedings in courts to which the draft Bill applies;[25]
• Civil and Criminal Proceedings. A criminal proceeding is defined as a prosecution in a court lie, a federal or Territory court) for an offence. All other proceedings in such courts are classed as civil proceedings.[26]
517. Meaning of ‘Business’. The concept of a ‘business’ is central to two important reforms and rationalisations of the present law made by the draft Bill: the facilitation of proof of the contents of documents[27] and the provision of a hearsay exception for business records.[28] In some respects, the definition of ‘business’ included in the draft Bill reflects definitions commonly found in ‘business records’ legislation in all jurisdictions.[29] It applies to the activities of government, the activities of statutory corporations and the proceedings of parliaments and their foreign equivalents, wherever carried on.[30] The policy considerations that are relevant to the proposals made in the draft Bill about the records of all these bodies are identical and there is little point in distinguishing between them for the purposes of the draft Bill.
518. Meaning of ‘Document’ and ‘Public Document’. Also central to these reforms is the concept of a ‘document’. It is defined in the following way:
‘document’ means—(a) any thing on which there is writing;[31]
(b) a map, plan, drawing or photograph; and
(c) a thing from which sounds or visual images are capable, with or without the aid of a device, of being reproduced,
and also includes a part of a document as so defined and a copy, reproduction or duplicate of a document or a part of a document.[32]
The definition includes all the methods available for storing information: ordinary writing, computer disks, computer tapes, microfilm, photocopies and the like. Documents that are part of the records of public bodies such as governmental and statutory authorities, and the records of parliamentary proceedings (Hansards) are included in a separate category of ‘public documents[33] because of the special provisions made about authentication and identification of these documents[34] and about evidence of their contents.
519. The Trial Process. Several definitions relating to the trial process need to be considered. First, references in the draft Bill to a judge in a proceeding include the person before whom the proceeding is being held.[35] This may be a federal judge or, especially in the Territories, a magistrate. Secondly, where a party is giving evidence, for example, the accused in a criminal trial, provisions that apply or refer to witnesses apply or refer to him.[36] Thirdly, the concept of the ‘probative value’ of evidence is defined in terms that correspond to the requirements in the draft Bill as to the relevance of evidence.[37] Finally, it should be noted that those provisions of the draft Bill that relate to a person who is being prosecuted for a related offence, chiefly the restrictions on his competence and compellability, apply to co-accuseds, by virtue of the definition of ‘person who is being prosecuted for a related offence’ in cl 3(1).
520. Structure. The commentary that follows is divided into chapters which follow the order of the legislation. In each instance, the policy reasons which have been advanced in support of particular rules are identified. These are discussed in the light of the policy objectives discussed earlier in this report. The commentary then sets out the essence of the proposals, explaining them and identifying and discussing the options that are relevant.
[1] See Appendix A.
[2] Hereafter the draft Bill.
[3] Part II (cl 13-42).
[4] Part III (cl 43-116).
[5] As at present, the rules of admissibility in terms relate to evidence and not the questions put to adduce the evidence. Objections relying on the rules of admissibility will be determined, as at present, in the light of the evidence that would be elicited by the question.
[6] It is developed from the present law, the Commission’s proposals in Australian Reform Commission Report No 2, Criminal Investigation, AGPS, Canberra 1975, and Australian Law Reform Report Commission, No 22, Privacy, AGPS, Canberra, 1983.
[7] In addition the trial judge, especially in criminal trials, will remain able to raise issues of admissibility. An option would be to include the following clause: ‘Unless the contrary intention appears, in a civil proceeding, Divisions 2, 3, 4, 5, 6, 7 and 8 of Part III do not apply in relation to evidence unless a party so requires’.
[8] Part IV (cl 117-134).
[9] Part V (cl 135-145).
[10] eg hearsay.
[11] para 82f.
[12] Judiciary Act 1903 s 79-80.
[13] Other examples include Trade Practices Act 1974 (Cth) s 74; Family Law Act 1975 (Cth) s 62(5); Patents Act 1952 s 101; High Court Rules O 39 r 3, 14, 17; Federal Court Rules O 33 r 2, O 14 r 8; Family Law Regulations reg 63(12); Marriage Act 1961 (Cth) s 94(7); Crimes Act 1914 (Cth) s 24(d)(ii).
[14] cl 12.
[15] para 2.
[16] Northern Territory (Self-Government) Act 1978.
[17] Norfolk Island Act 1980.
[18] cl 9.
[19] ibid.
[20] It does not apply in proceedings that are not held before a ‘court’, eg a court-martial.
[21] cl 9(2).
[22] Parties also adduce evidence otherwise than from witnesses: eg documents.
[23] Thus, for example, cl 59 provides:
(3) In relation to—
(a) evidence of a previous representation adduced by a defendant; and
(b) ...,
being evidence that is given by a witness who observed or heard the making of the representation, [the rule declaring that evidence
of previous representations is inadmissible] does not apply.
[24] cl 3, definition of ‘legal or administrative proceeding’. This definition is needed for a limited number of situations—eg the admissibility of evidence of judgments (cl 77-9); the admissibility of evidence of judge or juror of the reasons for that decision (cl 109); the compellability of judges (cl 16).
[25] See above, para 2 and 513.
[26] cl 3 definitions of ‘civil proceeding’ and ‘criminal proceeding’: the question whether proceedings for contempt of such a court should be classed as criminal or civil is not specifically addressed: it will be dealt with by the Commission in its reference on contempt of court.
[27] Pt III Div 2; Pt IV Div 2.
[28] See, in particular, Pt III Div 3 Subd C.
[29] See Appendix C, para 65, 94 for an account of this legislation.
[30] See cl 4 (definition of ‘business’).
[31] This is defined by the Acts Interpretation Act 1901 s 25.
[32] This definition is very similar to that recently included in the Acts Interpretation Act 1901, s 25 but that definition does not extend to photographs in certain circumstances.
[33] cl 3 definition of ‘public document’.
[34] See cl 53 & 124: as with the definition of ‘business’, these extend to foreign public documents.
[35] cl 3 (definition of ‘Judge’).
[36] cl 3. Where appropriate, the general provisions are qualified by specific provisions dealing with the accused as a witness.
[37] cl 3 (definition of ‘probative value’).
521. Rationale.[1] The law allows the trial judge to rule a witness incompetent—psychologically or physically—to give evidence as a witness. A test of such competence is desirable. Without it, the courts would be faced, on occasions, with evidence of no probative value, thus adding to the cost and expense of the trial. However, the wrong balance is struck under existing law. It is most important for the fact finding exercise and for the fairness of the trial system that a person who can give relevant evidence be permitted to do so. The proposals maintain the present position that generally all witnesses are treated as psychologically and physically competent. It adjusts the balance, however, in favour of the greater admissibility of evidence.
• Psychological Competence. The present law addresses the issue, but only indirectly, by the requirement of the oath or affirmation. The witness must understand the nature and consequences of the oath or affirmation or, if not, understand that he must be truthful.[2] The proposal requires the ability to understand the obligation to give truthful answers. An alternative approach would be to substitute ‘accurate’ for truthful. In support of the latter approach, it can be argued that truth is not a unitary concept even for adults. ‘Truthfulness’ is a concept of little or no meaning for very young children. The end result, however, will probably be the same in most cases. The test concerns the witness’ ability to understand his obligation to speak ‘the truth, the whole truth and nothing but the truth’. The remainder of the proposed test covers the other attributes a person needs to be able to function as a witness.[3] It meets the criticisms of existing law.[4] In particular, it relates the issue to the matters on which the witness is required to give evidence.
• Physical Competence. The proposal overcomes the old authority that deaf and mute witness are not competent and does so in a simpler manner than the differing legislation in three jurisdictions.
522. Operation of Proposal. The proposal operates in the context of the primary rule that all witnesses are competent. Thus, as at present, the court would proceed on the assumption that witnesses are competent unless there is an obvious doubt. The provision will give the court the power, in such circumstances, to decline to hear witnesses who do not reach a minimum level of physical and psychological competence. It is intended that it will be open to a court to rule that a witness should not give evidence in a trial where it emerges that the witness at any time[5] does not meet the required minimum standards of physical and psychological competence generally, or in relation to the particular evidence the witness is asked to give. Thus a young child could be permitted to answer simple factual questions but be ruled to be not competent to answer abstract or inferential questions. The court is given wide powers to investigate the issue in a manner similar to existing law. The practice would differ from the present in that it would not be necessary to explore the religious belief and knowledge of the witness. Otherwise it would be similar in that the judge or magistrate, for example, would question a young child about his schooling (if appropriate), his interests and test his ability to understand different types of questions, test whether he understands why he is giving evidence, what is expected of him and what will happen if he does not give accurate answers.
523. Witness Becoming Unfit to Testify. A choice should be made between the three views cited below.[6] The preferred view is that where the witness becomes unfit to continue, his evidence should be admissible:
... The evidence has been given in open court, almost always without any provision that it would be impossible to cross-examine the witness. Hence to the extent that the fear of cross-examination provides some guarantee of a willingness to tell the truth it is present in this case. It may be assumed that the judge would have intervened to prevent any seriously improper questioning. The task of attempting to wipe the evidence from the minds of those who heard it is probably more difficult than the task of giving it whatever weight it deserves.[7]
524. Relationship with Other Areas. The proposal has the effect of relieving any provisions relating to oaths and affirmations of the additional burden of supplying a test of competence. It also renders it unnecessary to have provisions for giving unsworn evidence where the witness does not understand the nature of the oath or affirmation.
525. General Competence and Compellability. The fact-finding and fairness considerations[8] both support a primary position that all witnesses should be competent and compellable. This is the primary proposal—all persons are competent and compellable witnesses in civil and criminal proceedings. The basic approach is the same as that taken by the law. The proposal differs from the present law in the statement of the exceptions. These are based on different policy considerations. They are discussed in the context of each exception.
526. Heads of State and Parliamentarians. The existing common law which renders the Queen, Governor-General, Governor of the relevant State and foreign sovereigns non-compellable is preserved. To remove doubts in the area non-compellability is extended to Governors of all States, Lieutenant Governors[9] and Administrators. The proposals also preserve the existing non-compellability of members of legislatures10 of States and Territories while the legislatures are sitting. The application to Territory Assemblies may be an extension of the law.[10]
527. Judge and Juror. The proposal introduces a new exception relating to judges and jurors—that they be not competent to give evidence in a trial in which they are acting as judge or juror. The view has been taken that for the law to be otherwise would be inconsistent with the requirements of a fair trial system and could result in serious practical disadvantages. As to the competence of judges or jurors to give evidence about a past trial in which they acted, it is thought that the general rule should apply and that they should be competent—as at present. There is a risk, however, of judges and jurors being involved unnecessarily in proceedings. The laws relating to abuse of process and oppressive subpoenas do not satisfactorily guard against such risks. The New South Wales Law Reform Commission recommended that a party seeking to compel a judge to give evidence should first have to get leave from the Supreme Court.[11] We are concerned in this reference with more than one hierarchy of courts and as a result it is difficult to nominate one tribunal before whom the leave application could be made. The proposal, therefore, adopts the practical expedient of requiring an application for leave to be made to the judge who is presiding at the trial in which it is sought to call the judicial officer to give the evidence.
528. The Accused. The proposal deals with the competence and compellability of the accused as a witness for the prosecution, in his own cause and for a co-accused.
• Witness for the Prosecution. The proposal preserves the rule operating in some jurisdictions[12] that the accused is not a competent witness for the prosecution. This accords with principle and the Commission is not aware of any reason why an accused should be a competent witness for the prosecution. There are proposals changing the rules that a person charged with offences arising out of the same incidents which gave rise to charges against the accused is competent and compellable to give evidence for the prosecution where he is to be tried separately or has pleaded guilty but not been sentenced.[13] There is an increased danger of perjury and wrongful convictions resulting from deals, or the pressure of self-interest, in that situation. The view is taken that the dangers should be avoided whenever possible. The relevant Research Paper proposal rendered such persons not competent to give evidence for the prosecution. This goes further than the existing law, which endorses a practice that the separate proceedings be concluded[14] but does not require the person to be sentenced. The proposal was criticised on the
(a) a co-accused unexpectedly pleaded guilty and could not be sentenced because, for example, a pre-sentence report was required;
(b) a person to be tried separately could give formal evidence—evidence unlikely to be affected by the pressure of self-interest.
Another consideration that has been raised is that it is desirable to sentence all co-accused at the same time and that, in the case of a joint trial, the accused who pleads guilty should not be sentenced by the judge on the limited evidence then available to him. The response may be made, however, that the prosecution was intending to proceed without the co-accused’s evidence before he pleaded guilty. The question for the prosecution under the research paper proposal would be whether the risk of not having all relevant material on sentencing is worth the advantage of having the co-accused’s evidence to lead against the other accused.[15] The topic requires control but flexibility. It is proposed that a person charged with a related offence may not give evidence for the prosecution unless the trial judge gives permission. Such permission is to be given only in exceptional cases and matters to be considered are listed.
• Witness in His Own Cause or for Co-accused. The proposal preserves the law in most jurisdictions that an accused is competent[16] but not compellable to give evidence as a witness for himself or a co-accused. The same problem arises, however, where co-offenders are tried separately, or one pleads guilty at a joint trial. The proposal will ensure that such persons remain non-compellable.
There is added a provision requiring the judge to enquire whether the accused is a person charged with a related offence where it appears that he might be and to advise him of his rights, so that he may choose whether to give evidence or not.
529. Spouse of the Accused. The proposal deals with the competence and compellability of the spouse as witness in a criminal trial for the prosecution, accused and co-accused.
• As Witness for the Prosecution. The general competence and compellability proposal makes spouses competent and compellable witnesses for all parties. This is subject, however, to a right to seek exemption from the trial judge when called by the prosecution. The application must be made when called to give evidence or immediately after the witness is advised of his rights. This proposal is similar to the reform introduced in Victoria in July 1979 and similar in substance to that introduced recently in South Australia.[17] It is recommended because it avoids the difficulties of the alternative approach of listing offences for the trial of which the spouse is competent or compellable. That alternative approach ignores the state of the relationship, the effect on the relationship of requiring the spouse to give evidence, the seriousness of the actual offence and the importance of the evidence and requires an arbitrary choice of offences for listing.[18] An approach requiring the listing of offences is also very difficult to adopt for Federal and Territory courts.
A right to seek exemption is generally supported on two policy grounds:
(a) the undesirability that the procedures for enforcing the criminal law should be allowed to disrupt marital and family relationships to a greater extent than the interests of the community really require;
(b) the undesirability that the community should make unduly harsh demands on its members by compelling them where the general interest does not require it to give evidence that will bring punishment upon those they love, betray their confidences, or entail economic or social hardships.[19]
While marriage relationships appear to be less stable than in the past, marriage remains a popular and significant institution.[20] Throughout Australia, spouses are recognised as a category of witness to whom non-compellability should be extended. There is no clear case for not so recognising spouses.
The proposal is discretionary. The major danger with such an approach is that it may leave the prosecution uncertain as to what evidence it would be able to call and increase the time and cost of criminal trials. Concern has been expressed about these matters. A Sub-Committee of the Victorian Chief Justice’s Law Reform Committee considered the discretion proposal. It expressed preference for a listing-of-offence approach and a return to the law existing in Victoria prior to the introduction of the discretion[21] The sub-committee was concerned about the time that could be taken up in considering an application and the uncertainty created for parties preparing for trial (particularly where any proposal extends to de facto relationships).
Another matter raised subsequently is that the jury may be forced to remain in the jury room for lengthy periods. Comment was sought from Victorian prosecutors and the police. It has not been suggested by them that difficulties are created for them in the prosecution of offenders[22] It will be rare for a case to depend to a great extent on the evidence of a spouse. The comment of the Victorian law Reform Commissioner might also be borne in mind.
But that [uncertainty] is its situation today whenever it calls the accused’s spouse or member of the family. The prosecution can never be sure that there will not be a fictitious loss of memory, a change of story or a refusal to give evidence.[23]
So it can be argued that the proposed discretion would reduce uncertainty where the discretion applies. Generally the powers of the courts to punish compellable witnesses who refuse to give evidence are conferred without any guidance being given as to how those powers should be exercised or what considerations it is proper for the courts to take into account.[24] Although the existing law may say that the witness in question is compellable, it is commonly impossible to predict what will happen if a proposed witness does not wish to give evidence:
It is uncertain how far the judge will be prepared to go in applying pressure to the witness and what considerations he will give weight to in reaching his decision. In any situation that arouses sympathy for the witness the judge may do no more than make an order that the witness answer and that proceedings on the order be adjourned sine die to a date to be fixed; or he may impose a nominal fine or imprisonment until the rising of the court; or he may even adjourn sine die the consideration of what should be done and may hear out the case without taking any further action. And finally, of course, there is always uncertainty as to the degree of resolution that the refusing witness will possess.[25]
As to time and cost, when the issue arises, it may on occasions add to the time and cost of particular trials. Of the two Supreme Courts trials of which the Commission has been informed, it is understood that one was dealt with reasonably quickly but the other took some nine hours, in the course of which two applications where made—the second being successful. A factor in lengthening the time was the refusal of the prosecution at the first hearing to indicate whether the spouse—witness would be given an indemnity, she, on her statement to the police, being a party to the alleged conspiracy. Cases will vary and much will depend on the grounds relied upon and the approach taken to the issue. If the witness is exempted, however, there will be some saving of time. The exemption of the witness after the nine hour applications for example, must have saved time at the trial.[26] The witness’ evidence, if given, would have been extensive—as would the cross-examination by the several counsel involved. Had she not been exempted, she would not have been a willing witness for the prosecution. Issues may have arisen as to whether she was a hostile witness and whether she should be dealt with for contempt.[27] These are the sorts of problems that can arise with the unwilling witness likely to seek exemption under the proposals. In the absence of such a guided discretion, the same issues would arise and have to be considered in any event in deciding what to do with a person who refused to give evidence. A saving grace is that the issue will rarely arise.[28]
Of three County Court cases of which the Commission has details, in two, consideration of the issue lasted one hour or less.[29] In the other case[30] the application took longer and was adjourned for psychiatric examination of the witness. The witness was exempted and the trial did not proceed.[31]
• As Witness for Accused and Co-accused. A spouse will be a competent and compellable witness for both the accused and co-accused. A relevant policy consideration is our concern to minimise the risk of convicting an innocent person. It is thought that this overrides the other policy considerations.
• Former Spouse of Accused. The former spouse will be a competent and compellable witness for all parties. The policy considerations justifying an exemption for the spouse do not apply.
530. Non-Compellability of Other Witnesses. Non-compellability is an exception which must be supported for special reasons. It is not a personal benefit which people can claim as a right. As the categories of witnesses entitled to seek exemption increase, so the range of evidence available to the court and the parties will decrease. There must be some cogent reasons for making a witness non-compellable. A clear case must be made out before extending non-compellability into new areas.
531. In most jurisdictions non-compellability is limited to spouses of the accused. In Victoria, however, the law gives a right to seek an exemption from giving evidence for the prosecution to parents and children of the accused. In South Australia it is given to parents, children and de facto spouses of the accused. The issue for the Commission is whether it should extend non compellability to such persons and whether it should extend beyond them to other persons. It is necessary to identify relevant public interests which conflict with the public interest in having all relevant material available to the courts and which would provide a policy basis for exempting witnesses. The rationale for spousal exemption is of some relevance. It is cited above but warrants repeating:
• the undesirability that the procedures for enforcing the criminal law should be allowed to disrupt marital and family relationships to a greater extent than the interest of the community really require;
• the undesirability that the community should make unduly harsh demands upon its members by compelling them where the general interest does not require it to give evidence that will bring punishment upon those that they love, or betray their confidences, or entail economic or social hardships.
The second ground does not provide any basis upon which to select classes of witnesses who ought to be exempted. It is arguable also that it does not assist our decision making—that to require a witness to give evidence in the circumstances described is harsh but not unduly so because of the overriding public interest in having all relevant evidence. The first ground, avoiding damage to marital and family relationships would support in principle extending exemption to parents, children and de facto spouses. It would also support however, the inclusion of siblings, step-parents, aunts, uncles, nieces, nephews, grandparents and ‘families’[32] of an unconventional nature. There are other public interests however that support in principle extending exemption to narrower categories of relationship:
• De Facto Marriage Relationships, Traditional Aboriginal Marriages. To the extent that such relationships are the equivalent of a marriage relationship it may be argued that there is a public interest in their protection.
• Parent and Child. It may be argued that there is a public interest in protecting such relationships. It is generally accepted that the relationship between parent and child is a critical factor in the development of the child. The public interest would support extension to any person in a de facto parent child situation.
It is not proposed to address specifically the issue of compellability of parties to traditional marriages. The issue will be considered in the context of the Reference on Aboriginal Customary Law. It is proposed however, to consider the other two relationships and to then consider wider relationships.
532. De Facto Marriage Relationships. There is evidence available suggesting that there are substantial numbers of people living in such relationships and that they often equate with marriage relationships—particularly as a family unit. The following information is obtained from the New South Wales Law Reform Commission Report.[33]
(a) Increase. There was according to Bureau of Statistics figures a fourfold increase between 1971 and 1976 in the number of people living in de facto relationships (34,166 to 131,876). From 1976 to 1982 the number of de facto partners increased to 337,316 (156 per cent).[34]
(b) Age Groups. 58 per cent of de facto couples are under the age of 30 compared with 18 per cent of married couples.[35]
(c) Prelude to Marriage. Australian statistical information does not assist directly on this point. Figures available, however, indicate that 8 per cent of people who have never married are living with a de facto partner, 17 per cent of previously married but separated people are living in such relationships and 19 per cent of divorced people are living in that type of relationship.[36] There is a high rate of re-marriage after divorce which is a possible indication of a prior de facto relationship.[37] In addition one fifth of separated and divorced people were living in a de facto relationship in 1982.
(d) Duration of Relationships. Information on the average duration of de facto relationships is not available. Information on duration of current relationships:
Up to 2 years—39 per cent
2-5 years—38 per cent
6-10 years—13 per cent
11 or more—8 per cent
Approximately 59 per cent have been in existence for 2 years or more. 43 per cent have continued for 3 years or more.[38] Information is available about the average duration of marriages that end with divorce—7.6 years in 1982.[39]
(e) Presence of Children. In 18 per cent of de facto relationships, there are children born during the current relationship. However, 36 per cent of de facto couples have dependent children living in their family, either born during the relationship or a previous marriage or other relationship. The 1971, 1976 and 1982 figures show a marked increase in absolute numbers of de facto families containing dependent children—1971 (10,407); 1976 (32,188); 1982 (59,640). The New South Wales Law Reform Commission comments ‘the number of de facto families with children highlights the importance of parenting role for a significant number of de facto couples. At the same time there has been a decrease in the proportion of de facto couples who have children—61 per cent in 1971 to 49 per cent in 1976 to 36 per cent in 1982. A major reason suggested is the increasing proportion of young de facto couples. However children are present in more than one third of de facto relationships. Further the NSWLRC was advised that one of the most frequent problems on which legal practitioners and welfare workers were consulted related to the maintenance and custody of children living in a de facto relationship situation.[40]
The Commission summarises the statistical evidence in the following terms:
In our view, the evidence clearly establishes that a large number of Australians live in de facto relationships; that a substantial proportion of these relationships can be regarded as involving a significant mutual commitment (in the sense that they continue for a period of at least 2 years); and that a significant proportion involve children within the household. To the extent that the current law inflicts injustice, the problem is not merely trivial, but substantial.[41]
In assessing the public interest in protecting such relationships it is also relevant to consider their acceptance in the community.[42] Public opinion polls show a change in attitude towards de facto co-habitation. For example, polls conducted in 1971-1972 showed 51 per cent disapproved and in 1977 showed 35 per cent disapproved. A survey conducted in conjunction with the Family Formation Project in 1981 found only 22 per cent of persons aged 18 to 34 disagreed with the proposition that ‘It’s alright for a couple to live together without planning to get married’. It reports in the same period an increase in approval rate. In the 1971 to 1972 poll, 29 per cent approved. In the 1977 poll, 50 per cent approved. In the 1981 project, 78 per cent expressed approval of the above statement.
533. There is a case for extending to de facto relationships the exemptions provided for spouses of an accused—on the grounds of public interest. Other issues, however, must be considered.
• Need. While the experience of the courts has shown some need in respect of traditional marriages, evidence is not available in respect of de facto relationships. This may become available in South Australia when the extension to de facto marriages has been in operation for a longer time.
• Time and Cost. An extension to such relationships has the potential to add to time and cost. One cannot estimate with confidence how much it would add. The experiences of the South Australian reform will shed some light on this issue. It is not possible, however, to come to any conclusions using the experience of the Victorian reform which does not extend to such relationships.
• Ease of Application. There are problems of definition of de facto relationship and of applying such definition to the facts of a particular situation. One popular form of statutory definition relies upon terms such as the relationship between a man and a woman who, although not legally married to each other, live together as husband and wife on a bona fide domestic basis.[43] The terms have been considered by the Administrative Appeals Tribunal and Federal Court in several reported cases.[44] The discussion in the decisions shows the difficult task in assessing the existence of the required relationship. For example:
We consider ... that in order to determine whether a woman comes within the expression ... all facets of the interpersonal relationship of the woman and the man with whom she is allegedly living as his wife need to be taken into account. This will involve the consideration of the inter-relationship of the parties and any children in the household; whether that relationship contains any of the indicia of a family unit; and the way in which the patties present their relationship to the outside world ... [T]he question of financial support provided to a woman will be an important consideration, but it is only one of a number of relevant matters which need to be taken into account ...
Before a woman can be said to be living with a man ‘as his wife’, there must, in our view, be elements both of permanence and exclusiveness in the relationship, as these elements are of the essence of a marriage relationship ... But within those broad confines, it is surely a notorious fact that marriage, in present day society, allows considerable scope to the parties to develop their relationship without damaging the fundamental integrity of that relationship as a marriage.[45]
The New South Wales Law Reform Commission concluded:
A review of the Tribunal’s decisions in social security cases reveals a large number of matters considered by the Tribunal in deciding whether or not a particular relationship amounted to a de facto relationship: the nature and extent of common residence; the duration of the relationship; whether or not a sexual relationship existed; the degree of financial interdependence and arrangements for support; the ownership, use and acquisition of property; procreation of children; care and support of children; performance of household duties; use of a common surname; nature of social activities; degree of mutual commitment and moral support; plans for a common future; reputation and ‘public’ aspects of the relationship; and explanations and interpretations offered by the parties.[46]
A commentator from the Department of Social Security said:
Basically, the Department’s conception of de facto marriage has been the commonsense one that would be accepted also by its clients: de facto spouses are people who live together in the same household, and sleep together and this arrangement is of some stability. Only it has bound itself normally to infer the existence of the sexual relationship from other features of the association.[47]
The task while difficult is manageable.
534. Parents & Children of Accused. The public interest identified above would support exemptions for parents and children. As to the other relevant issues:
• Need. Victorian experience has shown a need, in a small number of cases, to exempt parents and children from giving evidence.
• Effect on Time and Costs of Trials. The Victorian experience is that exemption overall has not significantly added to time or cost problems. In particular cases it may take some time to resolve the issue. Against that, where witnesses have been exempted, there has on occasions been a significant saving of time.
• Ease of Application. It is probably easier to determine whether a witness is the parent or child of the accused than to determine whether the witness is the de facto partner of the accused.
535. Other Relationships? It has been suggested that if there is to be non-compellability then it should be in terms of persons in a domestic relationship with the accused—ie a person living in a bona fide domestic relationship with the accused at the time of the offence or at the time any alleged communication was made by the accused to that witness relating to the offence.[48] The two policy arguments advanced to support a spousal immunity would support such a proposal to some extent. Another suggestion received by the Commission is to extend non-compellability to intimate personal relationships. This is supported to some extent by the ‘family’ rationale but must find its support principally in the policy ground of avoiding undue personal hardship in the operation of the law. Such rationale, however, does not warrant limiting the categories. As to the other issues:
• Need. There is no evidence of need beyond that referred to above supporting more limited categories. This evidence may be difficult to obtain but the fact is that it is not there. The issue has been publicised in the homosexual community. To date no submissions have been received urging the Commission to extend non-compellability to homosexual relationships.
• Ease of Application. ‘Bona fide domestic relationship’ is probably more difficult of definition than de facto relationship. It will also be extremely difficult to apply to factual situations presented to the court. It would probably be better not to have any category. ‘Intimate personal relationship’ is also too vague to be workable—a sexual one is likely to be but may not be. Does a nephew have an intimate personal relationship with an aunt whom he visits once a week? Does a parishioner have an intimate personal relationship with his priest or a patient with his doctor? Concern has also been expressed about the opportunity for the defendant to exploit such a flexible category. The category is likely to be more difficult to apply in cases than the bona fide domestic relationship one. Also the vaguer the description of the class who may claim exemption, the more variable must be the application of the law. It must be remembered that the application of such a provision will depend in large measure on the view the judge holds on the value of the type of relationship concerned.
• Effect on Time and Costs of Trials. There is no comparable legislation in operation which could provide information on the effect of such a proposal on the time and cost of litigation. An extension to such relationship, however, has a potential to add significantly to the time and cost of trials. The issue would presumably arise more frequently and be less likely to be resolved in favour of the applicant than say, a parent and a child or spouse. Much would depend on whether witnesses were to be advised of the right. On one view it would make a mockery of the right if witnesses were not.
536. Conclusion. The policy ground of avoiding undue personal hardship in the application of the law would support a proposal that enabled all witnesses to seek exemption. It is understood that no one is supporting such a proposal. It could defeat the primary objective of the proposals—ensuring that all relevant evidence is placed before the court. The problem is to determine where the line should be drawn. Looked at from the point of view of policy arguments, the rationale relating to protection of family relationships and the rationale relating to protecting parent/child relationships would support extending a right to seek exemption to de facto marriage relationships, traditional Aboriginal marriages and parent and child relationships. A consideration of the practical issues of need, and ease of application and uniformity also supports drawing the line at those categories. The evidence would also suggest that the time and cost of trials would not be significantly affected, at least in relation to spouses and parents and children and traditional Aboriginal marriages. The other categories ‘domestic relationship’[49] and ‘intimate personal relationship’ go beyond the relationships presently recognised and justified by the family rationale and the parent/child rationale. They must find their support, particularly the ‘intimate personal relationship’ category, in the ‘avoiding undue hardship’ rationale. Such rationale, however, does not in itself support the limits imposed by the category. Further the absence of any evidence of need, the difficulties of application and the potential for a significant impact on the time and cost of litigation and the lack of potential for uniformity, argue for not extending the exemption to such categories at this stage. It is suggested that, for these reasons, the proposal should go no further than the following categories—spouse, parent and child, de facto marriage relationship. An advantage of such a proposal is that it will enhance the prospects of a uniform approach to the law throughout Australia.[50] Recognition of traditional Aboriginal marriages for that purpose will be dealt with in the Report on Aboriginal Customary Law.
537. Details of Majority Proposals. The substance of the proposal put forward for spouses of the accused is also made to apply to parents, children and de facto spouses of the accused. ‘Parent’ is defined to include adoptive parent and the natural father of an ex-nuptial child. ‘Child’ is defined to include a child of any age and adopted and ex-nuptial children. ‘De facto spouse’ is a term that has received various definitions.[51] The definition used is based on recent legislation—the Sex Discrimination Act 1984 s 4. It differs slightly, however, in that it omits the reference to ‘bona fide domestic basis’.[52] An alternative definition is included,[53] modelled on South Australian legislation. The alternative includes a requirement of one year’s duration for the relationship. The purpose of this is to make the task of the judge a little easier. It would, however, prevent some genuine cases from being recognised. Views in the Commission are divided on which of the approaches to take.
538. Consistently with the law in several jurisdictions, it is proposed that the court be under an obligation to satisfy itself that witnesses who may be able to seek exemption are aware of the rights given by the legislation. In addition, 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[54] further questioning, including cross-examination. As under the Victorian legislation[55] the matter will be dealt with in the absence of the jury (if any). It is also proposed that the judge inform himself in such manner as he thinks fit.[56]
539. The Family Court. It is not proposed to recommend any changes to the law under the Family Law Act and Regulations that a child under the age of 18 years may not give evidence without the order of the court and that spouses and members of the family are otherwise competent and compellable witnesses in all proceedings under the Family Law Act, including criminal proceedings. These limits create problems for the Family Court. The policy arguments supporting the approach, however, are strong and many of the difficulties are ameliorated by the use of counsellors’ reports and can be overcome or reduced by reforms to the hearsay rule.
540. Approach. One Member of the Evidence Division of the Commission[57] would take a somewhat different approach. Instead of limiting the availability of the exemption from giving evidence in criminal trials to the four categories proposed by the majority, he would propose that the right to object to giving evidence should he available to any person who is in an intimate personal relationship with the defendant, whether of blood or affection. In the alternative, he would prefer to restrict the exception to compellability to the historical class of the lawful spouse. In his view, once it is decided to extend the categories, and particularly where a judicial discretion replaces an absolute privilege, such extension must occur in a non-discriminatory way. It is his view that the four categories chosen by the majority are at once too narrow and insufficiently sensitive to the variety of human relationships which the wider statement of exemption is designed to accommodate. In proposing a rule that goes beyond the historical exception in the case of a lawful spouse, the Commission is endeavouring to resolve the competition between
(a) the considerations which uphold the general desirability that persons who can give relevant evidence should be required to do so and that the time and cost of litigation should not be unduly increased (on the one hand); and
(b) the considerations that the law should generally respect the privacy of specially close personal relationships and should not, by its procedures, disrupt such relationships to a greater extent than the interests of the community in the administration of justice require (on the other).
The law of privilege already gives some protection to particular evidence by persons in defined classes of confidential relationships.[58] Even outside defined privileged categories the courts will normally endeavour to respect the claim by witnesses to immunity from having to answer particular questions dealing with matters in respect of which there was a legitimate expectation of confidentiality.[59] In respect of compellability in criminal trials, once a rule is developed that goes beyond the historical exemption of spouses (basically developed because at common law husband and wife were one) a new principle must be found. The categories suggested by the majority are simply instances of that new principle. They fail adequately to define the new genus, of which the instances are species or illustrations.
541. Unprotected Groups. The categories proposed by the majority do not even provide protection for the ‘nuclear family’. For example, they do not include siblings and step-siblings. Nor do they allow for the variety of personal relationships that sometimes constitute the ‘family’ of particular persons in Australian society today. An aunt or step-parent, a grandparent or a very close friend and guardian may be the ‘family’ for a particular accused person. The evidence quoted by the majority demonstrates the observable fact that personal relationships are changing in Australia. Even nuclear families are less common. In the case of a criminal accused, the likelihood of a normal, stable nuclear family is probably less true than for the average member of the population. Once the decision is further made to reflect the reality of personal relationships in Australian society today, to the extent of exempting (at least some) de facto spouses, it is clear that even a narrow definition of the orthodox nuclear family has been abandoned as the criterion for exemption. Instead, the genus of exemption is a very small group of people bound to the accused either in a blood relationship or by reason of close affection, normally involving a sexual relationship. It is these classes of intensely intimate relationships which the law should seek to protect. It should do so for three reasons. First, because of the public interest in protecting the intimacies and confidence typically shared in such human relationships. Secondly, because of the undesirability of creating a tension between the duty of confidence to the accused (arising from blood or affection) and the duty to tell the truth to the court. Thirdly it should do so out of recognition of the temptation which any breach of the lastmentioned duty will pose to perjury or to defiance of the court and the great difficulty that then arises in dealing with such defiance. Widening the categories does not permit automatic exemptions from the obligation to give evidence. It simply permits the activation of the judicial discretion which will then take into account, amongst other things, the effect of having to give evidence on the relationship involved.
542. Avoiding Discrimination. There is another reason for seeking more precisely to define the genus. This is that the four categories listed by the majority are discriminatory. They involve the partly arbitrary stereotyping of close personal relationships. Discrimination against those who do not enjoy lawful or de facto marital relationships, children or living parents, is inevitable. Discrimination, even within the nuclear family, against siblings and step siblings, has also been referred to. Discrimination against those whose personal relationships and ‘family’ do not happen to comply with the norm chosen by the majority, must also be mentioned. But the proposal is specifically discriminatory against traditional Aboriginal marriage relationships and homosexual relationships. Some traditional Aboriginal marriage relationships may not fall within the definition of ‘spouse’ proposed by the majority. That definition imports European and, indeed, Christian conceptions of marriage, for the purpose of the extension of the law to de facto relationships. It involves an ‘ethnocentric’ imposition of legal categorisation of personal relationships which is not necessary and is discriminatory against Aboriginal Australians.[60] The proposal also excludes stable homosexual relationships which are not dissimilar (in at least respects relevant to this issue) to de facto heterosexual marriages. Yet they are excluded from protection by the definition adopted by the majority. The same shifts in public opinion which are cited in aid of the growing of community tolerance to de facto heterosexual relationships is reflected in successive public opinion polls concerning attitudes to consensual adult homosexuality.[61] The absence of submissions from the homosexual community should not govern the recommendations of this Commission on a matter of principle. There could be many reasons for such want of submissions, that have nothing to do with the merits of the argument or the importance of the principle involved. It should be remembered that there are checks against unjustifiable claims of intimate relationships. The witness must first make the claim and establish the relationship (in respect of which there will often be inhibiting considerations). Even then, the witness simply activates the judicial discretion which involves the judicial officer’s weighing the competing public policies involved.
543. Practical Considerations. Against the proposed extension of the categories, a number of arguments are suggested. Appeals to history or the status quo do not advance the issue for they would overwhelmingly limit the immunity in Australia to a lawful spouse. Reference to the suggested ‘rationale’ of preserving the family or parent/child relationship begs the question. What is the ‘family’ for this accused? Why should the parent/child relationship be given primacy over other, even nuclear, family relationships which may be, in the particular circumstances, much more important to the accused and the witness than the relationship with his parents? Appeals to public opinion and to what is tolerable are implied in the majority argument for extending the protection to de facto marriages and in the assertion that the four categories chosen represent the best ‘prospects of a uniform approach to the law throughout Australia’. However, community attitudes, like community practice in intimate relationships, are changing. Such uniformity as exists in Australia is largely limited to spousal immunity. Wider categories have been adopted in only two jurisdictions. South Australia, coming later, went further than Victoria by extending the class to de facto marriages. Until a satisfactory genus has been defined, the category approach will actually invite disuniformity, as one category or another is added to, or subtracted from the list. Finally, the arguments of court time and the need to secure essential evidence is raised. But these are arguments against extending the categories beyond the lawful spouse. The Victorian experience does not appear to justify claims that undue time has been expended or that vital evidence has been unreasonably excluded. In some cases, where intimate relationships of blood and affection are involved, the exclusion of evidence may sometimes be beneficial for the social purposes ultimately served by the criminal law. For all these reasons, instead of persisting with particular categories to activate the judicial discretion, the law should seek to define the class which those categories together illustrate. True it is, some witnesses may seek to abuse the wider genus by claiming exemption. However, they must establish their entitlement and then secure the exercise of the judicial discretion in their favour. The more likely problem is that witnesses, through ignorance, fear or embarrassment, will fail to seek exemption. The criterion of exemption proposed by the Commission, when it ventures beyond history, should be principled and non-discriminatory. The categories offered by the majority express illustrations rather than a description of a new principle. The result is arbitrary and discriminatory. The alternative formulation is simpler and provides for changing community attitudes to personal relationships. The fears of abuse are no more well-founded than in the case of the four categories adopted by the majority. For this reason, the alternative should be preferred.
544. Principled and Non-Discriminatory Approach. The main criticism of the majority proposal is that it does not present a ‘principled and non-discriminatory’ approach. If this criticism means that the proposal is not based upon a consideration of relevant policy issues and unjustifiably discriminates between classes of witnesses, the majority begs to differ.
545. The ‘principled’ approach suggested in support of the dissenting view is that a genus must be identified and used as the basis for providing a category. It does not explain why one genus must be found. The majority view is that the task required is to identify relevant policy issues and, in the light of those issues, formulate rules which best meet the competing policy objectives. In theory, there is no reason why disparate categories should not be used in any proposal. As it happens, however, there is common ground between the categories employed in the majority approach.
546. In preparing proposals it is impossible to avoid discrimination. Even the broader alternative put forward discriminates on the grounds of the closeness of the relationship and its personal nature. To say that a proposal discriminates does not assist the argument. The issue is whether the discrimination is justified. This involves a consideration of the relevant policy issues. Two policy arguments are advanced, in the dissenting view, to support the proposal there advanced:
(a) that the law should generally respect the privacy of specially close personal relationships. It is not clear to the majority, however, why the consideration is limited to close personal relationships and no reason appears to be advanced. In any event, the policy consideration advanced would support a privilege relating to communications and would not appear to support a right to seek general exemption from giving evidence.
(b) that the law should not, by its procedures, disrupt such relationships to a greater extent than the interests of the community in the administration of justice require. The majority notes that this statement of policy is a variant on that advanced by the majority, which was put in broader terms—the undesirability of the law making unduly harsh demands upon members of the community. Again it is not clear why the statement of policy in the dissenting view should be limited to close personal relationships. The public interest would appear to be wider. The formulation advanced in the dissenting view obviously supports the category advanced. No argument is advanced, however, as to why it should be limited in the way proposed.
The proposal does not unfairly discriminate against Aboriginal Australians. As noted above, the question of extension of proposals to tribal relationships is a topic to be dealt with in the context of the reference on Aboriginal Customary Law. It is true that the proposal does not cover homosexual relationships whether stable or otherwise. Whether or not it should depends in part upon the policy objectives that are defined. It is intended that in the course of discussion of the proposals, the issue of the need to extend proposals to such relationships will be canvassed.
547. Issues not Addressed. The dissenting view does not address the issues raised above about the problems of applying the ‘close personal relationship’ category and does not address the question of the need for such a broad category. Brief reference is made in the dissenting view to the Victorian experience. While it is true that that experience does not appear to justify claims that undue time has been expended, it must be remembered that the Victorian proposals are much more limited than either the majority approach or the dissenting approach. It is true that the categories advanced by the majority are in some respects more limited than the underlying public interests that are identified as supporting them. The majority justifies this, however, on the basis of the other competing issues identified above and not addressed in the dissenting view.
548. Uniformity. Finally, on the issue of uniformity, it is incorrect to suggest that there is uniformity in Australia in relation to spousal immunity. In most jurisdictions, the legislation is limited to spouses. There, however, the uniformity ends. On any realistic assessment of the legislation, there is a substantial lack of uniformity because of the different categories of offences that are used in defining the compellability of the spouse.[62] The establishment of a genus, as such, is not necessary to ensure the development of uniform laws in this area. What is required is the correct identification of the relevant policy issues and the approach best suited to addressing them. The South Australian and Victorian approaches offer the best prospects of achieving uniformity in law and practice. The broad category of ‘close personal relationships’ would result in a lack of uniformity because of the width of the judicial discretion conferred by it.
549. The Failure to Call Witnesses. The Commission does not recommend any proposals with respect to the evidentiary consequences of a party failing to call a particular witness, or failing to go into the witness box himself. The common law essentially permits reasonable inferences to be drawn from both, without drawing any significant distinction between them, or between civil and criminal cases. It is not proposed to advance legislative provisions stating what inferences may be drawn. This is not feasible as every case will be different.
550. Under existing law, a failure by a party, or the accused, to give or call evidence in response to evidence adduced by the other side may be used by that other side in certain circumstances:
(a) the opponent/prosecution must have established a prima facie case in support of a proposition in issue in the trial;[63]
(b) the party/accused should reasonably be expected to adduce evidence in response to that prima facie case.[64]
The precise use that may be made of the party/accused’s failure to give or call particular evidence (omission) is unclear. This is inevitable, as each case will vary. The following generalisations may be made:
• The omission does not affect the burden or standard of proof.[65]
• The omission cannot be used to make up any deficiency of evidence. If the opponent has failed to adduce any evidence on a particular issue, then the party/accused’s omission to respond to other evidence cannot affect that failure.[66] An accused person’s failure to give evidence cannot amount to an admission of guilt.[67]
• The omission can be used to strengthen the probative force of the evidence adduced by the opponent relevant to the proposition in issue. Any facts which the evidence tends to prove may be more readily accepted.[68] Conversely, the omission may lessen the force of evidence already adduced by the party/accused about the proposition in issue.[69]
• The omission can be used to strengthen the probability of an inference open on the facts established by the opponent.[70]
The High Court has held, in Brandi v Mingot,[71] that the correct view is that a jury may infer that the evidence of the absent witness ‘would not have helped that party’s case’ (eg by throwing doubt on the correctness of an inference sought to be proved by the opponent). It is not a proper inference that the absent witness’ evidence would have ‘exposed facts unfavourable’ to the case of the party failing to call that potential witness.[72] A number of courts have explicitly stated that the above inference, that the evidence would not have helped the party’s case, may be drawn where a defendant fails to give evidence or fails to call an obvious witness, in both civil and criminal cases.[73] The reasoning involved (in the permissible inference) is not entirely clear. Lord Mansfield stated in Blatch v Archer:[74]
it is certainly a maxim that all evidence is to be weighed according to the proof which it was within the power of one side to have produced and in the power of the other to have contradicted.[75]
But Justice Best asserted, in R v Burden[76] that if a party has it in his power to rebut an inference by evidence and yet offers none, it is ‘something like an admission that the presumption is just’.[77] Heydon argues, however, that any implied admission will be excluded by the party’s express decision to contest the case, or by an accused’s plea of not guilty.[78] Justice Carmichael, in R v Buckland,[79] was of the view that the conclusion to be drawn from an unexplained failure to call a witness ‘is not a conclusion as to what the evidence of that witness would have been, if called; but a conclusion as to what the patty believes, would be the result of his case, if the witness were called. The witness is not called because the anticipated detriment to the party’s case outweighed the anticipated benefit’. The weight to be given to an inference in a particular case (and therefore the nature of any judicial comment) will depend on a number of factors.[80]
It is not proposed to advance any legislative proposals for civil trials. In criminal trials the issues which require consideration are the nature of the inferences that should be drawn where an accused does not give evidence and, therefore, the appropriate comments that should be made and the question of who should comment.
551. The Accused—Inferences from Failure to Give Evidence. It is a basic principle of the common law that ‘nemo debet seipsum prodere’, ie no one may be compelled to betray himself. One consequence of this principle has been the development of the proposition that an accused person does not have to give evidence in his own trial. Not only need he not answer questions, he need not even go into the witness box. He will not, for example, be guilty of contempt of court if he chooses not to give evidence.
552. But the issue in this context is whether the concept of non-compulsion necessarily prevents the drawing of inferences from the failure of the accused to give evidence. It may be argued[81] that there is a distinction between a ‘genuine compulsion’ and a ‘strong inducement’. Permitting reasonable inferences to be drawn from the failure of an accused person to give evidence at trial should not create a genuine compulsion on him to give sworn evidence. There are strong arguments in favour of permitting a tribunal of fact to draw adverse inferences from the failure to an accused to give evidence. It is important to encourage, but not compel, an accused to give his side of the case. An admission made by him during the trial is likely to be reliable. Reasonable inferences should be available from silence.[82] If accused persons can avoid giving evidence, and being subject to cross-examination, without any adverse consequences, then there is a risk that guilty persons would escape conviction.
553. On the other hand, there may well be reasons, other than guilt, why the accused would not choose to give evidence. He may wish not to disclose conduct on his or another’s part which though non-criminal is highly embarrassing. He may wish to remain silent to protect other people. The accused may fear that he will be confronted with his prior convictions.[83] The accused may have considerable communication difficulties. Persons accused of crime tend to be relatively uneducated, inarticulate, suspicious, frightened and suggestible. They may misunderstand the true significance of questions, tell foolish lies in order to terminate questioning contradict themselves. Psychological studies suggest that any tribunal of fact is likely to react adversely to certain physical traits and mannerisms.[84] While an accused will usually be legally represented, and protected by the judge from overly oppressive questioning, in many ways cross-examination corresponds to police interrogation. Particularly where the question involved is one of the mental elements of a crime, it would seem dangerous to expose a relatively simple accused to the hands of a skilful cross-examiner. The accused is faced with his moment of truth—how he handles himself is crucial to his fate. The atmosphere is intimidating. The judge and lawyers are dressed strangely. The judge peers down at him from the bench. He is isolated in the dock.[85] It seems a desirable compromise to maintain the present position that silence, while it can be used in relation to other evidence, cannot be used as direct evidence of guilt leg an admission of guilt).
554. The Accused—Inferences from Failure to Call a Witness. There does not seem any good reason why the principles applicable to civil cases should not also apply in criminal proceedings to the failure of an accused to call a witness. Certainly, the concern to avoid the conviction of innocent persons does justify greater caution, but it would be inappropriate to prohibit reasonable inferences being drawn from the failure of an accused person to call a particular witness. It is not proposed to include any provision in the legislation on the issue. It is neither desirable or possible to do so exhaustively. In this instance, no specific need has been identified. It is to be expected that as at present, the trial judge should make it perfectly clear that no direct inference to guilt is permissible, only an indirect inference related to the probative strength of other evidence adduced in the proceeding. A complication in this area is the statutory non-compellability of certain witnesses, like the spouse of the accused. The sort of generalisations that can be made about possible inferences from an accused person’s failure to call a witness are not necessarily appropriate to the situation where the witness is not compellable to give evidence. It would not be reasonable to infer from the failure of an accused’s spouse to give evidence that the accused perceived anything about the contents of the evidence such spouse might give. Moreover, the refusal of the spouse to give evidence should not be used as positive evidence leading directly to a negative inference with respect to the accused’s case the considerations justifying non-compellability will make such refusal equivocal. On the other hand, it may still be possible to argue that such refusal does strengthen the probative value of evidence against the accused, on the premise that unrebutted evidence must be given considerable weight in an adversary system.
555. The Accused—Comment on Failure to Give Evidence. As a general rule, comment by counsel or the trial judge on the failure of a party to call a particular witness or go into the witness box himself must be in terms consistent with legally permissible inferences. It is not necessary to draft legislation to this effect. But statutory provisions in some jurisdictions limit comment in two situations—where an accused fails to give sworn or unsworn evidence and where a particular member of the accused’s family fails to testify.[86]
556. The present statutory prohibition in some jurisdictions of judicial comment on an accused person’s failure to give evidence seems unsatisfactory. The reality is that adverse inferences will inevitably be drawn by the tribunal of fact. As an American court said over a century ago, ‘the silence of the accused ... is a fact ... which the jury must perceive, and which perceiving they can no more disregard than one can the light of the sun, when shining with full blaze on the open eye’.[87] This reality is recognised by most defendants and their counsel. Very few accused persons, having a choice between giving sworn evidence, making an unsworn statement and not saying anything, actually choose the last alternative. In one English study, the rate of failure to testify was just over one per cent in seven of the busiest criminal jury courts in England (with a total sample of 2,855 defendants).[88] In a study of the Victorian County Court by the Victorian Law Reform Commissioner over a period from 1977 to 1980, it was also found that few accused persons remained silent.[89] The danger is that an uninstructed jury, aware of the accused person’s right to give evidence, will conclude that his silence constitutes an admission of guilt. Wigmore argued that ‘the privilege in the mass of cases of frightened—innocent defendants (if it influences them at all) probably has a net tendency to seduce them into convicting, not saving, themselves by silence’.[90] The only way to avoid inferences of guilt being drawn against an accused who failed to testify would be to return to the position where the accused was precluded from testifying.
557. The New South Wales prohibition on judicial comment derived from a desire that the jury consider the accused’s silence without ‘the impetus against the accused which is given to the jury by the judge and the Crown Prosecutor both dwelling on the circumstance that he has not gone into the box and given evidence’.[91] There is a danger that judicial comment would draw the jury’s attention to an accused person’s silence, even in cases where the judge thought that silence explicable on proper grounds. Despite a judicial warning as to right and wrong inferences, the jury may choose the wrong inference. But a recent study in Singapore has indicated that permitting judicial comment has not led to an increase in the number of convictions or in the number of accused persons giving evidence.[92] Rather than making no comment and leaving the jury to draw what inferences they will, it seems preferable to permit a trial judge to instruct the jury as to the inferences they may, and may not, draw from the accused person’s silence.[93]
558. Prosecutorial comment, on the other hand, seems unnecessary.[94] The judge will make whatever comments are appropriate, anything more could be dangerous. The prosecution may well leave the jury with the impression that the failure to give evidence constitutes some sort of admission of guilt.[95]
559. The Accused’s Family—Comment on Failure to Testify. For the same reasons, it is proposed to permit judicial comment, but prohibit prosecutorial comment, on the fact that a member of the accused’s family has objected to giving evidence. While there is no reason to distinguish between the failure of an accused to call a member of his family and his failure to call any other witness, if such a member of his family actually chooses not to testify considerable care must be taken in drawing any inference against the accused.[96] In this situation, while careful judicial comment is appropriate,[97] it would be unwise to permit the prosecution to say anything directly or indirectly about the decision not to testify.
[1] See para 82.
[2] See Appendix C—paras 1 and 2.
[3] The capacity to understand and give a rational reply to a question. See para 236-45.
[4] See para 236-45.
[5] As at present—R v Whitehead (1898) 23 VLR 239.
[6] See Appendix C, para 6.
[7] See New South Wales Law Reform Commission, Working Paper, The Course of the Trial, Govt Printer, New South Wales, 1978, para 7.11.
[8] See para 82.
[9] See s 15(1) and Acts Interpretation Act 1901 (Cth) s 16A and s 1613.
[10] Note—the issue is under review by a Joint Select Committee of the Commonwealth Parliament.
[11] See New South Wales Law Reform Commission, Discussion Paper, Competence and Compellability, Govt Printer, New South Wales, 1980, para 2.2 which argued that there was a risk of embarrassment and the impairment of public confidence in the judiciary where the judicial officer is not willing to give evidence. Note privilege proposals—see below, para 873-6.
[12] Victoria, Tasmania, South Australia and probably the Christmas and Cocos (Keeling) Islands. In other jurisdictions he is competent but not compellable. See Appendix C, para 7.
[13] A person charged with the same offence but who receives a ‘none prosequi’ is not included. Such a person is competent ‘and compellable at present for the prosecution. This position has been criticised because fresh charges other than those to which the nolle prosequi applies can be laid: See para 250. The view taken, however, is that the law relating to the nolle prosequi should be examined and the issue considered in that context. The situation of the witness who could be charged is not covered. Criticisms of existing law have not extended that far. Additional practical difficulties are also envisaged if the proposals were to extend to such witnesses.
[14] R v Pipe (1967) 51 Cr App R 17; R v Turner (1975) 61 Cr App R 67, 78.
[15] Another alternative is that the co-accused be competent but not compellable and be advised of that fact and warned that in sentencing him, ‘the judge may take into account either in his favour or adversely to him, the nature and manner in which he gives his evidence’: Criminal Bar Association of Victoria, Submission (17 May 1983). It is thought that this suggestion highlights the problem of ensuring a fair trial for the accused who has pleaded not guilty. Further, the warning could be construed to mean that if he refuses to give evidence this would be held against him and that, if he gives evidence, the more his evidence helps the prosecution, the more lenient will be his sentence.
[16] The general competence rule will apply.
[17] See Appendix C, para 9.
[18] The difficulties are referred to above, para 251.
[19] Victorian Law Reform Commissioner, Report No 6, Spouse-Witnesses Competence and Compellability, Govt Printer, Melbourne, 1976 para 42 (VLRC 6).
[20] See National Population Inquiry, Report No 1, Population and Australia, vol 1, AGPS, Canberra, 1975, 10 and 75; National Population Inquiry, Supplementary Report, ALPS, Canberra, 1978, 28; Royal Commission on Human Relationships, Report, vol 4, AGPS, Canberra, 1977, 5-11; Australian Bureau of Statistics, Australian Families, 1982, AGPS, Canberra, 1982, 7.
[21] A sub-committee is currently attempting to revise that legislation.
[22] The National Police Working Party, Submission (1 February 1983) supports the discretionary approach. It expressed no concern about any difficulties arising from lack of certainty, time and cost. It argues, however, for limiting the categories to spouses and for some changes to the criteria. The Criminal Bar Association of Victoria accepted the Victorian approach but argued against extending the categories of witnesses beyond spouses, parents and children.
[23] VLRC 6, para 54.
[24] eg compare Magistrates’ Court Act 1971 (Vic) s 46; Magistrates (Summary Proceedings) Act 1975 (Vic) s 54; County Court Act 1958 (Vic) s 54; Evidence Act 1958 (Vic) s 11; Rules of the Supreme Court (Vic) O 37.
[25] TW Smith QC, Submission (8 March 1983).
[26] The trial itself ran for 6 months. There were three accused.
[27] For example, a day was spent on such an issue in argument in a Magistrates’ Court—see Victorian Chief Justice’s Law Reform Committee, Submission (January 1983).
[28] Enquiries have been made in Victoria about the operation of the provision which applies there also to the parents and children of the accused. The enquiries to date have revealed two cases in the Supreme Court and three cases in the County Court. Enquiries of Victorian magistrates revealed few cases. Twenty-seven magistrates replied. Of those who responded 17 said that the exercise of the discretion had not arisen in their experience. Of the remaining ten, the responses were—in ‘some’ cases (1); ‘rarely’ (1); once (4); two or three times (3); approximately 20 times (1). The cases included children and parents as well as spouse witness. A possible reason is that the prosecution will not want to run the risks involved in calling an unwilling witness.
[29] (a) Husband and wife rape trial. The wife was willing to give evidence. The issue debated in the case was whether, nonetheless, she should be advised as to her rights. The judge’s view was that she should and he did so. (b) Alleged indecent assault by father on son. The 12 year old son of the accused was the witness in question. Without his evidence there was no case. The child did not want to give evidence. The trial lasted 3 1/2 days. The accused was acquitted.
[30] Accused charged with attempted carnal knowledge of daughter.
[31] The trial Judge also ensured that steps were taken to help the father and daughter.
[32] As to the construction of the term ‘family’ by the courts, see AF Dickey, ‘The Notion of Family in Law’ (1982) 14 Uni WA L Rev 417.
[33] New South Wales Law Reform Commission, Report No 36, De Facto Relationships, Govt Printer, Sydney, 1983 (NSWLRC 36).
[34] id, para 3.8. Note 1971 and 1976 figures are derived indirectly and are minimum estimates. 1982 figures derived through a survey by ABS. They may be underestimates also. Part of the apparent increase may reflect more efficient collection of information. Between 1976 and 1982 de facto couples as a proportion of all couples (married and de facto) increased from 2.2 per cent to 4.7 per cent.
[35] id, para 3.23. The figures tend to match those available from overseas.
[36] id, para 3.12.
[37] E Evatt, R Watson & D McKenzie, ‘The Legal and Social Aspects of Co-habitation and the Reconstituted Family as a Social Problem’, in JM Eekelaar & SN Katz (ed) Marriage and Co-Habitation in Contemporary Societies, Butterworths, Toronto, 1980, 398, 400.
[38] NSWLRC 36, para 3.24.
[39] Australian Bureau of Statistics, Divorces in Australia, AGPS, Canberra, 1981, 4—marriage to date of separation.
[40] NSWLRC 36, para 3.26-3.29.
[41] id, para 5.6. Note the Commission did not address the question of the compellability of such persons as witnesses.
[42] id, para 3.15-3.17, Appendix IV.
[43] See discussion, id, para 17.1f.
[44] ibid.
[45] id, para 17.7 quoting Re Lambe [1981] FCA 171; (1981) 1 SSR 5.
[46] id, para 17.11.
[47] id, para 17.12.
[48] Nygh J, Submission (4 January 1982).
[49] See comments above on domestic relationship, para 535.
[50] Consideration was given to extending the exemption to situations where the giving of the evidence would not harm the witness or the witness’ relationship with the accused but would harm another person in the class of witnesses or the relationship between any two of such persons. However, this goes further than the existing legislation and under that legislation no evidence of a need for a wider exemption has emerged.
[51] See NSWLRC 36.
[52] As to which see above para 535—what is added by ‘bona fide’ and ‘domestic’?
[53] See Appendix A, Draft Bill, Notes to legislation, Note 1.
[54] R v Pitt [1982] 3 WLR 359, 362. In this the proposal differs from the Victorian and South Australian law which allows exemption as to part of the evidence.
[55] And also Crimes (Domestic Violence) Amendment Act 1982 (NSW) s 407AA(6).
[56] The approach in the Crimes (Domestic Violence) Amendment Act 1982 (NSW) s 407AA(7).
[57] Justice MD Kirby, the former Chairman and member of the Evidence Division at the time when the proposals and report were finalised.
[58] See Appendix C, para 195ff.
[59] See eg British Steel Corporation v Granada Television Limited [1981] AC 1096; [1981] 1 All ER 417. See also Barton v Csidei (1979) ACLR 193; Trade Practices Commission v Queensland Aggregates (1981) 3 ATPR 40-223, 43, 116.
[60] Australian Law Reform Commission, Discussion Paper No 18, Aboriginal Customary Law-Marriage, Children and the Distribution of Property, AGPS, Canberra. 1982 (ALRC DP 18) para 3, 4, 5. 12.
[61] D Chappell & PR Wilson, ‘Changing Attitudes Towards Homosexual Law Reform’ (1972) 46 ALJ 22; D Chappell & PR Wilson, ‘Public Attitudes to the Reform of the Law Relating to Abortion and Homosexuality’ (1968) 42 ALJ 120, 175; New South Wales Anti-Discrimination Board, Discrimination & Homosexuality, Govt Printer, Sydney, 1982, para 4.41f; SM Hong, ‘Sex, Religion and Factor Analytically Derived Attitudes towards Homosexuality’ (1983) 4 Australian Journal of Sex, Marriage and Family 142. (Note: the surveys seek attitudes to homosexual acts not homosexual relationships.)
[62] See Appendix C, para 9.
[63] Cockburn CJ in McQueen v Great Western Railway Co (1875) 10 LR QB 569 (‘unless we can see our way clearly to the conclusion that a prima facie case has been established, the omission to call the witness who might have been called on the part of the defendants amounts to nothing’); Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 (failure of civil defendant to give evidence); May v O’Sullivan [1955] HCA 38; (1955) 92 CLR 654, 658 (failure of accused to give evidence). But this requirement may not be imposed where the facts are peculiarly within the knowledge of the party accused: De Gioia v Darling Island Stevedoring and Lighterage Co Ltd [1941] NSWStRp 53; (1941) 42 SR (NSW) 1, 4.
[64] Reasonably expected to call witness: Brandi v Mingot (1976) 12 ALR 551, 560; R v Buckland [1977] 2 NSWLR 452, 457 (CCA); Smith v Samuels (1976) 12 SASR 573, 581. Should have given evidence himself: Morgan v Babcock and Wilcox Ltd, (1929) 43 CLR 163, 178; R v Singh [1962] AC 188. Factors affecting the latter conclusion include whether a witness could speak about the matter in issue; whether the party knew what the witness would say; whether the witness had any recollection of the events in issue; whether other witnesses are equally or better able to give evidence of the events; whether the witness is able to give evidence and whether the witness is prejudiced against the patty: Brandi v Mingot (1976) 12 ALR 551, 560; Dodds v Birch (1973-4) 11 UWAL Rev 298; R v Singh [1962] AC 188; Smith v Samuels (1976) 12 SASR 573, 581. However, it is clear that no inference may be drawn if the party/accused explains the omission: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, 321 (Windeyer J). It may be that an opportunity should be provided to offer such an explanation but it is probable that the onus is on the party/accused to provide it: See Smith v Samuels (1976) 12 SASR 573, 581, 587; West v GIO (NSW) [1981] HCA 38; (1981) 35 ALR 437, 443; R v Booth [1983] VicRp 4; [1983] VR 39, 40. 47, 52.
[65] May v O’Sullivan (1955) 42 CLR 654, 657 (HC); Bridge v R [1964] HCA 73; (1964) 118 CLR 600, 615; Thorogood v Warren (1979) 20 SASR 156, 158 (Zelling J).
[66] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, 312; Hoobin v Samuels (1971) 2 SASR 238; WA Pines Ltd v Hamilton (No 2) [1981] WAR 225, 234.
[67] Waugh v R [1950] AC 203.
[68] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, 312; Bridge v R [1964] HCA 73; (1964) 118 CLR 600, 615; Hoobin v Samuels (1971) 2 SASR 238; WA Pines Ltd v Hamilton (No 2) [1981] WAR 225, 234.
[69] O’Donnell v Reichard [1975] VicRp 89; [1975] VR 916, 929.
[70] Morgan v Babcock and Wilcox Ltd (1929) 43 CLR 163, 178; Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, 312, 319; West v GIO (NSW) [1981] HCA 38; (1981) 35 ALR 437, 442 (HC); It may make the inference ‘less unsafe’: May v O’Sullivan [1955] HCA 38; (1955) 92 CLR 654, 658 (HC); Thorogood v Warren (1979) 20 SASR 156, 159; R v Garen [1962] NSWR 1105, 1107 (CCA); ‘enables an inference adverse to the defendant to be more readily drawn’: WA Pines Ltd v Hamilton (No 2) [1981] WAR 225, 234.
[71] (1976) 12 ALR 551, 559.
[72] See also Street CJ in R v Buckland [1977] 2 NSWLR 452, 458. It is not clear whether Murphy J adopted a different view in West v GIO (NSW) [1981] HCA 38; (1981) 35 ALR 437, 443 when he said that ‘the proper inference to be drawn is that the witness, if called, would not assist the defendant’s case, but would assist the plaintiff’s case’.
[73] Windeyer J in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, 321; Cox J in R v Dutton (1979) 21 SASR 357, 378.
[74] (1771) 1 Coup 63, 65; [1774] EngR 2; 98 ER 969, 970.
[75] See also Cox J in R v Dutton (1979) 21 SASR 357, 378; R v Guiren [1962] NSWR 1105, 1108 (CCA).
[76] (1820) 4 B & Ald 95, 122; 106 ER 873, 883.
[77] Cited by Windeyer J in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, 321; Smith v Samuels (1976) 12 SASR 573, 581.
[78] Heydon, 22. But see also Heydon, 25.
[79] [1977] 2 NSWLR 452, 470-1 (CCA).
[80] Morgan v Babcock and Wilcox Ltd (1929) 43 CLR 163, 178; May v O’Sullivan [1955] HCA 38; (1955) 92 CLR, 654, 658 (HC); O’Sullivan v Stubbs [1952] SASR 61; R v Guiren [1962] NSWR 1105, 1107; Australian Safeway Stores Pty Ltd v Gorman [1973] VicRp 55; [1973] VR 570, 580; eg on issues of mental state of an accused who chooses not to give evidence: R v Singh [1962] AC 188, 188; R v Sparrow [1973] 2 All ER 129. Other factors include: the degree to which the truth of the matter is ascertainable by the opponent; the extent to which the true facts surrounding a relevant incident are peculiarly within the knowledge of the witness not called; the closeness of the relationship of the absent witness with the party against whom the inference is sought to be drawn; the strength and nature of the opposing case; the reasons offered for the failure to give or call evidence; whether the patty/accused has legal representation; whether the party/accused has responded to the opposing case before the trial, which explanation has been adduced by the opponent in evidence; it may well be that the weight of the inference will be modified by policy considerations in criminal cases where the accused has chosen to remain silent. There is authority suggesting that the concern to ensure the accused’s right to silence may justify reducing the strength of any inference from silence. Street CJ in R v Buckland [1977] 2 NSWLR 452, 458 considered that where ‘the absent witness is a party himself then considerable importance may well attach to the inference’: R v Voisin [1918] 1 KB 531; see also Waugh v R [1950] AC 203; R v Bathurst [1968] 2 QB 99; Sanders v Hill [1964] SASR 237; Nicholls v King [1951] NZLR 91, 96. Adams J argued that where an accused was unrepresented he may have remained silent because he was bewildered by the proceedings or because he did not appreciate the need to rebut the case against him. See also RS O’Regan, ‘Adverse Inferences from Failure of an Accused Person to Testify’ [1965] Crim LJ 711, 716; Waugh v R [1950] AC 203, 211 (PC); R v Bathurst [1968] 2 QB 99, 107-8. It was also stated in the latter case that the weight of the inference will also be affected by whether the burden of proof is on the prosecution or defence.
[81] As the Privy Council recently asserted in Haw Tua Tau v Public Prosecutor [1981] 3 All ER 14, 22. On appeal from the Supreme Court of Singapore.
[82] In drawing such inferences, however, the right to say nothing would have to borne in mind.
[83] In an American study, 18 per cent of the accused in their cases were silent. Of those with a record, 26 per cent did not testify. Of those with a record where the case was strongly in their favour, 47 per cent did not testify: H Kalven & H Zeisel. The American Jury, Little, Brown & Co, Boston, 1966, 143-8. Kalven and Zeisel’s study shows that this is likely to be the real reason for silence in America, where the record of an accused who testifies is more likely to be admitted than in England or Australia. But this argument has less weight in Australian jurisdictions. Existing law provides some protection from this, particularly in New South Wales. Under the proposals advanced below, para 591-2, this would not really be a danger for the accused.
[84] See below, para 586 (text accompanying n 72-6) .and para 799 and 807.
[85] Permitting an accused person to make an unsworn statement, rather than give sworn evidence, would ameliorate some of these difficulties. The accused could prepare his statement in advance, and thus minimise the risk that communication difficulties and particular mannerisms will prejudice the tribunal of fact. He will not be exposed to intimidating cross-examination. See below, para 584-592.
[86] See Appendix C, para 11.
[87] Maine v Cleaves (1871) 59 Me 298, 301.
[88] EA Tollefson, The Privilege Against Self Incrimination in England and Canada, D Phil Dissertation, Oxford Uni, unpublished, 76-7, 134-5.
[89] The respective proportions were: 4.26 per cent, 4 per cent, 10.86 per cent and 7.73 per cent. The acquittal rate for those remaining silent was, respectively: 42 per cent, 43 per cent, 39 per cent and 27 per cent. This was slightly higher than for accused persons who made an unsworn statement but lower than those who gave sworn evidence (on average 43 per cent). See Law Reform Commissioner of Victoria, Report No 11, Unsworn Statements in Criminal Trials, Melbourne, 1981, 24.
[90] JT McNaughton, Wigmore on Evidence, Little, Brown & Co, Boston, 1961, vol 8, para 2251.
[91] Dr (later Chief Justice) WP Cullen, New South Wales, 94 Hansard (Leg Ass) (1898) 1630.
[92] MH Yeo, ‘Diminishing the Right to Silence: The Singapore Experience’ [1983] Crim L Rev 89, 98, 100.
[93] See CR Williams, ‘Silence and the Unsworn Statement: An Accused’s Alternatives to Giving Sworn Evidence’ (1976) 10 MUL Rev 481, 492.
[94] It has been proposed by the Criminal Law Revision Committee on the basis that the present prohibition is ‘wrong in principle and entirely illogical’, 69: Criminal Law Revision Committee of England and Wales, Eleventh Report, Evidence. See HMSO, London. See also NSWLRC, 47.
[95] See above, para 260.
[96] See the South Australian and Victorian legislation. See Appendix C, para 10.
[97] To inform the jury of impermissible and permissible inferences, and to point out all relevant considerations, including policy considerations.
560. Rationale. The swearing of witnesses ‘to tell the truth, the whole truth and nothing but the truth’ obviously is important as a symbol of the attempt by the trial system to make decisions on the basis of accurate fact-finding. It would seem also, on occasions, to make witnesses more careful and thus assist in fact-finding, securing a fair trial and the saving of time and costs.[1] It is therefore proposed that witnesses continue to be sworn. An exception is made for the accused in the criminal trial, for special policy reasons discussed later. The first issue to be considered, however, is whether a religious form of oath should be retained.
561. Differing Views. Consideration has been given to the abolition of a religious form of oath. Abolition has been recommended by several law reform bodies, but so has retention. Reports favouring abolition have been issued by—the Canadian Law Reform Commission, the Ontario Law Reform Commission, Scottish Law Commission,[2] the Criminal Law Revision Committee[3] and the Northern Territory Law Reform Committee. Those favouring retention include—the New South Wales Law Reform Commission, the Victorian Chief Justice’s Law Reform Committee, the Federal/Provincial Task Force on Uniform Rules of Evidence, the Thomson Committee, Scottish Law Commission[4] and there were dissentients at the Canadian Law Reform Commission and Criminal Law Revision Committee. The oath requirement is also retained in the US Federal Rules of Evidence.[5] A religious form of oath is used in all States and Territories. The issue must be approached on the basis of whether a clear case is made out for abolition of a religious form of oath.
562. The Religious Oath as a Security for the Truth. Those who argue for retention maintain that the religious oath increases the chance of some witnesses telling the truth.[6] They argue that the oath still has some significance for many people.
To those who take the oath seriously (and this covers a great many people) the certain demands of conscience are more likely to elicit the exact truth than the highly uncertain threat of a prosecution for perjury.[7]
563. Those who argue for abolition dispute the contention that the oath increases the chance of some witnesses telling the truth. They argue that it offers no greater security than the affirmation. The Criminal Law Revision Committee argued:
There would be a good case for keeping the oath if there were a real probability that it increases the amount of truth told. The majority do not think that it does this very much. For a person who has a firm religious belief, it is unlikely that taking the oath will act as any additional incentive to tell the truth. For a person without any religious belief, by hypothesis, the oath can make no difference. There is value in having a witness ‘solemnly and sincerely’ promise that he will tell the truth, and from this point of view the words of the affirmation are to many at least more impressive than the customary oath. The oath has not prevented an enormous amount of perjury in the courts. A witness who wishes to lie and who feels that the oath may be an impediment can easily say that taking an oath is contrary to his religious beliefs.[8]
It can be argued that in fact the oath fails to prevent a great deal of perjury being committed:
The opinion that perjury is common in our trial courts is one on which all of the writers on the questions seem to be in complete agreement ... We may accept the opinion of those who have examined the question as to the seriousness of the problem, especially when it is confirmed by every day conversation of judges and trial lawyers ... There seems to be no reason to doubt that perjury is common enough to constitute a major problem in the administration of the law.[9]
Bentham argued that mendacity takes place unrestricted by the fact of an oath having been taken.[10] Those who argue for abolition point to the following matters in support of their argument that the oath offers no greater security for the truth.
• Decline in Religious Belief.[11] Once it was thought that the oath summoned:
... divine vengeance upon false swearing, whereby when the spectators see the witness standing unharmed they know that the Divine judgment has pronounced him to be a truth teller.[12]
It is unlikely that anybody would advance such reasoning today. Arguments have been and are advanced, however, that the religious oath reminds witnesses that they are liable to suffer divine punishment if they do not tell the truth.[13] Whatever rationale may be advanced for some form of oath, the justification for the choice and retention of a religious form of oath must rest upon one or more the following considerations—that many witnesses believe in a future divine punishment for lying, that there are many people for whom the religious form of oath will be a reminder of their religious and moral duty to tell the truth.
The latter purpose may be as well served by a solemn form of affirmation combined with a warning as to the penalties attaching to committing perjury. As to the former, however, it has been argued that it is a highly ‘talismanic’ view.[14] There can be little doubt that the number of people with strong religious beliefs is far fewer and the significance of religion in the community is much less than was the case some centuries ago, when the common law developed the form of Christian oath. The English Court of Appeal has said:
It is unrealistic not to recognise that, in the present state of society, amongst the adult population the divine sanction of an oath is probably not generally recognised.[15]
It may be argued that a religious form of oath has lost much if not all of its significance for a large proportion of the population. The point does not appear to be contested by those who argue for retention of the oath. They argue nonetheless, that the oath will have a greater impact on the consciences of some witnesses than the affirmation.
• Challenging the Basis of the Oath.[16] It is argued that the oath derives from a time when man believed that a verbal formula could itself produce desired results—as in the case of curses. As religious beliefs developed, the basis of the oath rested on a belief that taking a false oath brought automatic divine punishment. It is argued that these views are no longer held or appropriate. It can only be justified now on the basis that a witness who believes in God will have his attention called to the fact that if he tells a lie he will incur the divine displeasure. This basis has been queried:
All theories seem to labour under this defect, namely, an unwarranted assumption that the consequences which attend detected perjury when libelled and proved in our criminal courts will also follow in some comparable form at the Great Day of Judgment. But we do not know what view may be taken hereafter of the conduct of a man who, for example, tells a lie on oath to save his friend from disgrace, so we cannot say that in taking the oath he is influenced by the ‘Supreme Being ... whose vengeance he imprecates if he does not speak the truth’. Some theory, however, which assumes the certainty of Divine punishment is necessary, since no respectable religion could be found to declare that there is no moral obligation to implement a solemn invocation of a deity.[17]
The New South Wales Law Reform Commission concedes the force in the argument that the above second basis cannot be relied upon:
for many modern persons, devoutly religious though they may be, the decline of any belief in hell or divine punishment makes the second traditional basis of the oath inapplicable[18]
but argues that there remains the argument that the oath reminds the witness of his religious duty to speak the truth even though he may not believe that he will be punished for breach of the duty. It may also be argued that there remains the risk of such punishment.
• Lip Service Given to the Oath. If the oath is to be used as means of securing the truth, it might be expected that care would be taken to ensure that the appropriate form of oath is always given and that it is something that would be taken into account in evaluating the witness’ evidence. This, however, is not the case. Those who argue for abolition point to:
(a) Automatic Application of the Oath Regardless of Religious Belief. The expedient is adopted, either in law or in practice, of administering the oath using a Bible regardless of the nature or existence of the religious beliefs of the witness. It is left to the witness to say to the court that the form of oath proposed does not bind his conscience. This must mean that for many people the form administered, strictly speaking, is not appropriate. Further in a number of cases it will happen that the religious oath administered has no special significance for a witness over and above some other form of non religious promise to tell the truth.[19]
(b) Ignoring the Oath in Assessing Credibility. The Criminal Revision Committee argues that in evaluating the evidence, little attention is paid to the fact that it has been given on oath.[20] The New South Wales Law Reform Commission addresses the argument but re-phrases it:
As to the fact that evidence given on oath does not per se increase its weight as against evidence given on affirmation, the contrast is a false one. A religious man might well swear more truly on oath than on affirmation, but this distinction cannot be drawn for an atheist. The credibility of either will depend on his own special qualities.[21]
If the criticisms are accepted, however, they are not directed to the issue of whether the religious oath has a greater effect on witnesses than, say, an affirmation.
• Weakening of the Significance of the Oath by Legislation. Reference can be made to the legislation which enables non-believers to testify. It provides that the fact that a person does not have a religious belief at the time of taking the oath does not affect the validity of the oath that has been administered. Legislation also gives the right to affirm where there is no religious belief and enables an affirmation to be administered instead of an oath if it is not reasonably practicable to administer the oath. As to the latter, the Criminal Law Revision Committee argues that:
In passing this Act, Parliament recognised that there is nothing wrong in requiring a person to give evidence without being sworn even though he has a religious belief and it is not contrary to this to take an oath. It seems difficult, therefore, to see why this should not apply to all witnesses.
The Committee also points out that the position has been reached where the evidence of a child may be received, even though the child does not understand the nature of an oath.[22]
The New South Wales Law Reform Committee, while not disputing the amendments that have been made to the law to introduce affirmations and other matters which may lessen the importance of the oath, challenged some of the detail of the argument but asserted that the issue in New South Wales (where any person may elect to affirm) is whether persons should be allowed to continue to do so.[23]
564. The principle issue is the relative effectiveness of the religious form of oath in securing truthful, accurate evidence, from witnesses. Unfortunately empirical evidence is not available. Psychologists’ experiments lend qualified support to the argument that a religious oath will encourage witnesses to be accurate.[24] There are limitations[25] affecting these experiments, however, and they do not address the relative effectiveness of a religious or secular oath. Further this cannot be tested because it is not possible and not ethical to replicate the court situation.
565. It should be borne in mind that many people would think it morally wrong to lie, whether they were on oath or not. In addition, the person who gives evidence in court will be subject to a number of pressures which are calculated to make the witness conscious of the desirability of speaking the truth and of being as careful as possible in giving his evidence. For many it is a new experience. They find themselves in strange surroundings. They will quickly become aware, if they were not already, that reliance may be placed upon their evidence by the court. They will also be aware that their evidence can have serious repercussions for the State and for the individuals involved in the actual litigation. They will become aware that they are going to be cross-examined and will be conscious of the risk of potential embarrassment if they do not speak the truth or are careless in their evidence. Many, if not most, will be aware that if they do not tell the truth they could be prosecuted for perjury. Viewed in this context, both the oath and the affirmation are likely to have only marginal impact upon the witness. It is likely also that many of those whom the oath affects would be no less affected by the affirmation. It is difficult to escape the conclusion, however, that there will be witnesses whom the oath is likely to affect more than the affirmation. The fact remains that a religious oath contains two potential sanctions compared with the one potential sanction of the affirmation—divine sanction and penal sanction as compared to penal sanction alone. It is difficult, therefore, to reject the possibility that the oath may encourage some witnesses to be more truthful and accurate than they would have been if they simply affirmed.
566. Effect of Choice of Affirmation on Tribunal of Fact. It has been argued that the oath should be abolished because its retention places the witness who affirms at a disadvantage. There is a risk that some judicial officers and jurors will attach more significance to the evidence of the witness who takes an oath, as opposed to the evidence of the witness who affirms. His evidence may be viewed with scepticism by some jurors and judges and the quality of the evidence might, quite unjustly, be impaired in their eyes. This may be unfair to the witness who affirms but who may, in fact, adhere to a much stronger code of ethics than a witness who takes the religious oath. The witness may choose to affirm for religious reasons. The risk of the affirmation distorting the tribunal’s view of the witness, however, can be reduced by treating the oath and affirmation as equal alternatives in legislation and by having it said to each witness when the witness enters the witness box that he may chose to affirm or to take a religious oath. This is the approach taken in the proposals. It is likely that as his evidence progresses, concentration will tend to focus on the evidence and the behaviour of the witness and the fact that an affirmation was taken at the outset, while this may have seemed significant at the time, will gradually lose its significance in the mind of the trier of fact.
567. Practical Difficulties of Religious Oath. The practical difficulties involved in the religious form of oath provide grounds for its abolition:
To determine the proper ceremonies is often a difficult matter and the whole process is impractical in the daily administration of justice.[26]
The issue is of importance because there are many people who have non-Judaeo-Christian backgrounds. The 1976 census[27] (1981 figures in brackets[28]) showed:
• 10.6 million people or 78.6 per cent of the population (11.1 million, 76.4 per cent) belonged to a Christian denomination;
• 1.1 million or 8.3 per cent (1.57 or 10.8 per cent) stated ‘no religion’;
• 1.6 million or 11.8 per cent (1.59 or 11.4 per cent) did not respond;
• 51,272 or 0.4 per cent (73 551) were not classifiable;
• 129,071 or 1 per cent (197 273 or 1.4 per cent) were listed as non-Christian. These included 53,441 (62 126 or 0.4 per cent) Hebrew, 45,206 (76 792 or 0.5 per cent) Muslim and 30,423 other non-Christian (35 073, Buddhist 0.2 per cent and remainder of 23 577 not designated).
568. It also showed that while the majority of the population was born in Australia (approximately 10.8 million) the census revealed that 1.1 million people were born in the UK and Eire and approximately 1.1 million were born in other European countries. The figures also reveal that 240,622 gave their birth place as Asia and 267,393 people have other birth places.
569. The free right to choose between an oath or an affirmation without offering any reason for the choice overcomes many of the difficulties.[29] It does not, however, overcome all difficulties. If a witness chooses the oath, the appropriate form must still be established and administered. These can be met by practical action—making available in the courts of any city where there is a substantial community of a particular religious faith a copy of the appropriate holy book; revising the forms of oaths prescribed in books such as the Tipstaffs’ Manual and Associate’s Handbooks, in consultation with those who are authoritative about various religious faiths, to ensure that only the appropriate forms of oath are Set out.[30]
570. Other Arguments for Abolition. The Commission has received some comment on the question of abolition of the religious oath.
• Equality Before the Law. It has been put to the Commission that it is necessary to abolish the oath if there is to be equality before the law and that the free option proposal adheres to the discredited concept of separate but equal. The argument appears to be that the option approach, while theoretically giving equality, will not do so in practice. If one accepts equality before the law as a basic principle the issue is whether any exceptions to the principle are justified. A justification for an exception would be that the general importance of maximising the truthfulness and accuracy of witnesses justifies retention of the oath and the option approach goes as far as is possible towards ensuring equality before the law.
• The Oath and Australian Society. It has been argued that to abolish the oath would be ‘more appropriate for a secular court system in a pluralist, multi-cultural society’.[31] Against this view it may be argued that it is important to our secular court system to maximise the truthfulness and accuracy of witnesses and that methods should not be changed if to do so may affect that objective adversely. It may also be argued that ‘it is as much against the concept of a pluralist society to abolish oaths altogether as it is to impose them on every one’.[32]
• No Justification where Affirmation an Alternative. It has been argued that even if it is assumed that a religious oath will have more effect than an affirmation on the conscience of some people, this is not an argument for retaining the oath in a system where an affirmation is an alternative. ‘A person who feels more constrained by an oath will obviously choose to take an affirmation if he intends to lie. The only possible advantage in retaining the oath is thereby lost.’[33] The force of this argument depends on the assumption one makes about a witness. The view is taken that a significant number, if not a substantial majority, of witnesses do not, at the time they are sworn, intend to lie.
571. Retention of Optional Religious Oath. The credibility of the trial system depends in part upon the courts making and appearing to make a serious attempt to find the facts. The swearing of witnesses has a direct bearing on this attempt. The onus is on those who argue for abolition of the oath. It is a heavy one, because of the serious damage that would be caused to our legal system if there were any substantial increase in the incidence of false or careless swearing.
572. The tentative conclusion that has been reached is that the religious oath should be retained and that witnesses should be allowed to take the religious oath if so desired. It seems that there are difficulties whatever approach is taken. It is not demonstrated, however, that a religious oath is not for many people a greater guarantor of the truth or of accuracy than an affirmation. The religious oath has been described to the Commission as ‘a traditional and powerful symbol of the solemnity of the evidence that is given in courts of law. This atmosphere might be reduced if the oath was taken away’. Another commentator has argued[34]
Despite the decline in religious observances it seems obvious that among the millions of Australians who regard themselves as belonging to one or other of the Christian denominations there must be a significant proportion who believe in a just God who punishes sin, in the next world or in this or in both. For such persons the invoking of God to observe that what they are going to say will be true, followed by the uttering of known falsehoods or careless untruths would, I should think, be obviously a far more grievous sin, calculated to invoke far graver punishment, than a mere breach of the undertaking given by an affirmation. And the apprehension of such graver punishment would, I should think, be sufficient in very many cases, to make the pressure against lying and careless swearing victorious where the fear of punishment for breach of the promise given in an affirmation would be insufficient to do so.In the case of the very numerous class of persons who neither firmly believe nor firmly disbelieve in punishment for sin, the proportion who would be deterred would be likely to be lower. But it seems certain that there would be a substantial proportion of timid and superstitious persons who would be deterred from lies and carelessness by the additional pressure of the oath when a mere affirmation would be insufficient to deter them.
There is much force in these comments. If the religious oath is retained, one is then faced with choosing the least unsatisfactory proposals. It is suggested that this is the free oath/affirmation option. It is found in federal jurisdictions[35] and some States and Territories. Maintaining the predominant system is the proper approach in the absence of strong and clear evidence and arguments for abolition. In addition this approach avoids the need for the court to investigate the appropriate form of religious oath and the problems that arise if it is not possible to administer a religious oath.
573. In retaining the option, however, it may seem inconsistent with the arguments for retention of the oath that a witness be able to ask to affirm without giving reasons. The choice, however, is riot as ‘free’ as it may at first appear. The judge will not ask why the witness has affirmed. The possibility remains, however, that counsel may do so in cross-examination.[36] Further, giving witnesses the option does not seem to have encouraged people to affirm. Comment to date suggests that it is a very small percentage of witness who choose to affirm—far less than the ten per cent one might expect. Finally the Commission has not received any adverse comment about the operation of the optional approach in those jurisdictions where it is available.
574. Alternatives. Advantage should be taken, however, of the opportunity for discussion and in particular further consideration should be given to substituting the affirmation for the oath. Consideration should also be given to adding to the oath and to the affirmation, if they are retained, an acknowledgement that the witness will be liable to prosecution for perjury if he gives untrue evidence. It is included in Queensland law, where a witness affirms when it is impracticable to take a religious oath. It was advocated by some law reform bodies.[37] It was criticised by the Canadian Task Force as likely to offend witnesses.[38] But it is difficult to see how an acknowledgment by all witnesses of what are in fact the temporal consequences of dishonesty should offend. By the same reasoning requiring a witness to pick up a bible and swear by Almighty God to tell the truth should be offensive. It has also been suggested that such an acknowledgement could put excessive pressure on witnesses. A purpose of the oath, however, is to put pressure on the witness and it is difficult to imagine an acknowledgement of the penal consequences of dishonesty causing any significant difficulties for witnesses. The strange court environment is likely to be more disturbing than anything else.
575. Other Matters. It is also proposed that it be not necessary to swear on a religious text. This overcomes a major practical problem in retaining a religious oath—securing copies of religious texts for the courts. Research has not suggested that the use of a text is seen as an added inducement to tell the truth. No bible is used in the Scottish Form of oath. The validity of the oath, if taken, is preserved notwithstanding that the witness did not have a religious belief[39] and notwithstanding that the witness did not understand the nature and consequences of the oath.[40] Forms of oath and affirmation are included in the interests of uniformity. Failure to strictly comply will not render the swearing[41] invalid. Consideration has been given to formulae which reflect the reality that however honest and conscientious a witness may be his evidence, at times, will not be ‘the truth’ and that the most that a witness can do is try to the best of his ability to tell the truth the whole truth and nothing but the truth. Any qualification, however, weakens the impact of the oath and should therefore be avoided. It is proposed that the witness repeat the formula. This is done in a number of jurisdictions and may be a more effective ‘performative utterance’.[42] An additional point is that it is difficult to translate the alternative statement ‘so help me God’ without giving the impression that it is seeking God’s forgiveness for lies about to be made or God’s assistance in telling them. Finally it is provided that the judge advise the witness of the option. It is thought that this is required if the option is to be a real one and that it will help to reduce the potential prejudice that might otherwise attach to the witness who affirms.
576. Proposal. One Member of the Commission[43] disagrees with this conclusion. He would abolish the requirement that evidence be given on oath or affirmation in federal and Territory courts and substitute a simple requirement that witnesses promise to tell the truth, coupled with a warning against false evidence:
‘Question : Do you declare that the evidence you shall give to this Court shall be the truth’?Answer : I so declare.
Question : Do you understand that, if you do not tell the truth, you may commit an offence and be punished?
Answer : I do’.[44]
Alternatively, if it is decided to retain the oath, it should be as a subsidiary procedure. The primary procedure should be the secular promise. The oath should be administered only where the witness elects to swear an oath.[45] Although this facility would retain many of the disadvantages of the present dual system (particularly the risk that special weight might be given to the evidence of a witness who elects to swear an oath) it would at least uphold the primacy of the secular promise and provide a transitional procedure towards the abolition of the oath.
577. Reasons for Abolition of Religious Oath. The reasons that have led to the conclusion that witnesses should not be sworn before giving evidence are rehearsed above. They include the general decline in religious belief in Australia and the fact that even amongst persons holding such belief, acceptance of notions of Hell, sin and punishment are by no means universal. Furthermore, the oath at present administered and as proposed by the majority is essentially a Christian oath. It is, therefore, not appropriate to be provided in a multicultural secular society. Even amongst Christians there are those who question the appropriateness of making oaths to God in support of the truth of evidence given in secular courts. It is a serious mistake to infer that any guidance on the numbers of persons likely to be influenced to tell the truth in court by submitting to a oath can be ascertained by reference to the numbers of Australians claiming a religious affiliation for the purpose of the Census. Even conceding that a proportion of witnesses would be influenced to tell the truth by taking an oath, vital questions remain as to whether this marginal advantage is not outweighed by the reasons of principle and practicality rehearsed above. It is wrong in principle that the secular courts should provide, as a required threshold ceremony for the giving of evidence, an election which may, at least in some cases, result in inferences being drawn that are favourable or unfavourable to a witness. This conclusion is as true if a favourable inference is drawn for a witness who troubles to require an affirmation as it is if an unfavourable inference is drawn by a religious judge, magistrate or juror from the fact that a person, for reasons of his conscience, prefers a secular affirmation. The Commission was informed that at least one judge always looked to where a Jewish witness put his hand on the Bible, to see if the witness were touching the Old or New Testament. It was also informed of another judge who tended to put greater store on witnesses who insisted on affirming. Retention of the oath facilitates these and other prejudices which have no place in a modern Australian court. Oath-taking is a relic of earlier times, earlier attitudes to religion and specifically to Christianity and the close association between the Church and the courts in English legal history. It is out of place in the courts of a country whose Constitution forbids religious tests[46] and which has been described as ‘the most secular’ of Western communities.[47] It involves the secular courts in a quasi-religious ceremony, despite the increasing proportion of the Australian community which is non-Christian or agnostic. There are practical difficulties in administering a variety of oaths in a multicultural community. But these are less important than upholding the principle of equality before the courts and removing historical anachronisms which may sometimes tend to diminish that equality.
578. Different Approach. In the view of this Member[48] the approach taken by the majority to the criteria of reform is erroneous. Whilst he believes that a ‘clear case’ has been made out for the abolition of a religious form of oath, he does not accept that such a criterion is appropriate for consideration of reform where, as here, a comprehensive Federal evidence statute is being prepared for the first time. This approach of the majority is repeated in the assertion that the ‘predominant system’ of religious oaths should be maintained ‘in the absence of strong and clear evidence and arguments for abolition’. Although this Member believes that such strong and clear evidence exists and arguments have been established, he also contests such an approach as being unduly favourable to preservation of the status quo. In the instant case, that approach preserves a ceremony which owes more to history and tradition than to principle and efficaciousness. There are four possible arguments for retention of the religious oath.
(a) The first is the preservation of the status quo. But where the role of religion in society, its association with the courts, and the religious and ethnic diversity of the community have changed, preserving the status quo may be discriminatory, irrelevant or unjust.
(b) The second is that people of a religious persuasion (who are said to number the majority of people in Australia) should have the right to insist upon an oath. In the first place, this privilege is unlikely to be high on the agenda of religious people. Such people will normally be bound in conscience to do their best to tell the truth without the formal necessity of an oath. Furthermore, the largely formalistic ceremony of the oath may be seen by some believers as a debasement of religion in aid of an arm of civil government.
(c) The third argument for retention is that suggestions for abolition of the oath might be resisted by some spokesmen for the organised Churches in Australia as yet further evidence of creeping secularism and humanism. It might be considered that causing offence over such a relatively minor matter is simply not worth the trouble that would be caused. On the other hand, Australia is a secular community. It has never had an established religion such as existed in England, from whose courts we derived the religious form of oath. In the view of the dissenting Member, the abolition of the oath should not, properly, be seen as an offence to religion, including specifically the Christian Churches. On the contrary, oaths as administered in many courts in Australia tend to trivialise and formalise an appeal to the Deity. On this view, a routine ceremony before witnesses give evidence in court is an inappropriate misuse of personal religious beliefs or lack of beliefs.
(d) The fourth argument is the suggestion of a marginal increase in truth-telling. But even if this is conceded, it is more than outweighed by the disadvantages and reasons of principle outlined above.
579. Form of Oath. The form of oath recommended by the majority (that the evidence ‘will be the truth, the whole truth and nothing but the truth’[49]) is inconsistent with the extensive psychological evidence gathered by the Commission. This evidence makes it plain that the most an honest witness can do is to promise to do his best, calling on fallible memory, to tell the truth. Many of the rules of evidence themselves prohibit witnesses from telling ‘the whole truth’. Retention of the ancient formula pays more regard to history and tradition than it does to modern knowledge about human memory and recall, even of honest witnesses. It is for that reason that the dissenting Member has preferred a simpler form of promise. The warning about the consequences of false testimony, formally administered, is a more relevant modern contribution to underlining the seriousness of the occasion than hurried and formalistic invocations of Almighty God. Finally, for completeness, it should be mentioned that consideration was given to proposing that no formal ceremony at all be required, relying upon the inherent formality of the court and the operation of laws governing false testimony to instil a proper measure of truth-telling. However, a short, relevant and secular ceremony to reinforce in witnesses the necessity of telling the truth is probably beneficial. Hence the recommendation above which, in the view of this Member, should be preferred.
580. Approach. The majority had adopted the approach to this topic (and elsewhere in the report) of taking the existing law as the starting point and examining the case for its change. In the dissenting view this approach is rejected. The ground advanced is that it is not appropriate for consideration of reform where a comprehensive federal evidence statute is being prepared for the first time. The rationale for the majority’s approach is articulated above.[50] On this topic of the oath the majority went further and required strong and clear evidence and arguments for abolition because of the danger to the trial system if there were any substantial increase in the incidence of false or careless swearing. The dissenting view down plays the importance of this consideration.
581. Arguments Advanced for Abolition of Religious Oaths. Reference should be made above to the comments on the issues of equality before the law, the oath and changes in Australian society.[51] As to other points raised:
• The oath proposed is not essentially a ‘Christian’ oath. It may be used with or without alteration for other religions. However, in view of the fact that 76.4 per cent of the population claimed in 1981 to belong to a Christian denomination, it would seem appropriate to provide as the precedent a form appropriate to Christian witnesses. It does not follow from the fact that Australia is a multi-cultural society, that there is not a predominance of citizens who belong to a Christian denomination.
• In submissions received to date, it has not been suggested by persons who regard themselves as Christians that it is inappropriate to make an oath to God in support of the truth of the evidence given in the courts.
• The majority does not assume that there is a precise numerical connection between those likely to be influenced by a religious oath and those who claim religious affiliation in the census.
• Judges and jurors will have prejudices. Whatever system is used, there will be scope for prejudice and irrationality. The majority view is that an optional religious oath and affirmation approach will minimise the risk of prejudice and irrationality.
• It is questioned whether oath taking is a relic of earlier attitudes to religion and specifically to Christianity. It is true that the law was laid down many years ago in the case of Omychund v Barker.[52] It should be remembered, however, that that case related to the appropriate form of oath to be administered to Gentoos (people who were not Christians) and the court laid down that the form of oath was not to be limited to a Christian form. Whether oath taking is to be regarded as a ‘relic’ will depend upon the view taken as to whether it still serves a useful purpose. The majority would also question the allegation of a close association between the Church and the courts in English legal history and whether such association had anything to do with the existence and continuation of oath taking in the court.
• There is no inconsistency between the constitutional provision referred to and the use of a religious oath in the court.
• Australian society may have been described as ‘the most secular’ of western communities but the reality appears to be that there is still a very substantial proportion of the population claiming religious beliefs and affiliations. In 1981, 77.8 per cent claimed to belong to Christian and other denominations.[53]
• As to the ‘four possible arguments for retention;[54] it is necessary to comment on aspects of two of them:
(a) that ‘preserving the status quo may be discriminatory, irrelevant or unjust’. The proposal favoured by the majority is not.
(b) that the suggestion of a ‘marginal increase in truth-telling ... is more than outweighed by ... disadvantages and ... principle’. A disadvantage not addressed in the dissenting view is the danger of an increase in perjured and careless testimony and its impact on the credibility of the trial system.
• The religious oath does not involve the courts in a quasi religious ceremony.
• Any practical difficulties in administering a variety of oaths have been addressed in the majority proposal.
582. The Wording of the Oath. The form proposed by the majority is not inconsistent with the psychological research referred to. As stated above,[55] the oath is a performative utterance—a statement of the witness’ intent. It is concerned as much with the witness’ honesty as his accuracy. The witness is saying that he will tell the whole truth and nothing but the truth as he perceived it and can remember it. Saying less runs the risk of encouraging perjury and carelessness on the part of the witness.
583. The Alternative. It is thought that there is little to be gained by the alternative proposed of retaining the oath but as a subsidiary procedure to be requested by the witness. To the extent that it asserts that an affirmation is to be preferred to a religious oath as a security for the truth, it is not supported by any evidence. By asserting the primacy of a secular promise, it highlights the issue of which procedure is more likely to produce honest and careful answers. It is likely in practice to result in the assertion of the primacy of a religious oath. Further it is likely that lawyers will urge witnesses to take a religious oath if possible. As soon as one witness swears a religious oath, the others will be under pressure to do so. The advantage of a law under which the religious oath and the affirmation are put forward as options is that they will be seen to be treated by the law as equal options and this will reduce the risk of the issue arising and irrational or prejudicial inferences being drawn. Reference should be made to the comments above.[56] Reference should also be made to the fact that enquiries have not revealed any adverse comment about the operation of the optional approach in those jurisdictions where it is available.
584. Abolition or Retention? The. right of an accused to make an unsworn statement is widely used in those jurisdictions where it is retained. Figures available for Victoria and South Australia although they vary, indicate that unsworn statements are frequently made—Victoria—between 35 per cent to 40 per cent in the years 1977 to 1980 in jury trials;[57] South Australia—34 per cent of accused in 1979 and 29 per cent of accused in 1980 in Supreme Court trials.[58] The making of unsworn statements is common in New South Wales.[59] The Commission has been advised that unsworn statements are frequently made in trials in the Australian Capital Territory. In considering reform of the laws of evidence, particularly as applied in criminal proceedings, care must be taken to ensure that a clear case for change exists before reforms are made. It is proposed to consider each of the arguments that have been put forward to support abolition of the right.[60]
585. An Anachronism? It is generally argued by those who argue for abolition of the right that the right is an historical anachronism. It is said that the right to make an unsworn statement was developed at a time when the accused could not give evidence on oath. That right having been given some time ago, the original reason for the existence of the right has long since disappeared.[61] While it is true that the original reason which justified the right of the accused to make an unsworn statement no longer exist, it begs the question to argue that it is, therefore, an anachronism. The issue is whether there are other reasons why it is appropriate for the accused to have the right to make an unsworn statement if he so chooses.
586. Justifications. A number of reasons can be advanced for its retention:
• Risk of Conviction of the Innocent. The issue was canvassed in comments made by the former Chief Justice of the Supreme Court of South Australia, Dr JJ Bray, which are reported in the report of the South Australian Select Committee.[62] He put his argument in the following terms:
... I think it would be a sorry day when every person in the dock of a South Australian court charged with a major crime had only the stark alternatives of saying nothing or getting into the witness box and rendering himself open to cross-examination. If the prosecution could make out a prima facie case and the exculpatory facts were within the knowledge of the accused alone, he would be forced into the box, otherwise the jury would have no inkling of his real defence. Too much, it seems to me, would then turn on his appearance, his composure, his demeanour and his powers of self-expression. The plausible, the suave, the glib, the well-spoken and the intelligent would be unduly favoured as compared with the unprepossessing, the nervous, the uncouth, the halting, the illiterate and the stupid.[63] Most people in the dock of a criminal court fall into one or more of the latter classes: many people in the dock have something to hide, even if innocent of the crime charged, and the consciousness of that may give a misleading appearance of shiftiness. It may be said that this applies to all witnesses; but failure to pass the ordeal of cross-examination has not the same consequence for the other witnesses. The very knowledge of the consequences at stake is likely to multiply the chances of a bad performance. Nor do I think justice suffers as a consequence of the right to make an unsworn statement. Juries are not fools. They are well aware of the differences between making an unsworn statement and giving evidence on oath, and anyhow the judge will remind them of it. The defendant who chooses to make an unsworn statement incurs a handicap. All I urge is that he should retain the right to incur that handicap if he wants to. 1 would view with revulsion the prospect of his being unable to put his version of the facts before the jury in any form unless he went into the box.
Arguments focussing on the weakness of many accused persons as witnesses are collected in the New South Wales Law Reform Commission Discussion Paper.[64] It notes the argument that the right to make an unsworn statement may assist the accused who ‘whether through ignorance or other shortcomings, is at a vast disadvantage during cross-examination’.
The accused may be a nervous or weak type of person who may be easily overborne by a strong cross-examiner into saying things which may put an adverse complexion on his evidence.[65]
The New South Wales Law Reform Commission notes that it is often argued that there are doubts as to the fairness of cross-examination in court; that there is still too much of: ‘Answer yes or no. Your barrister will get your explanation later’. Or to the witness who says he does not remember: ‘You are not prepared to swear it did not happen?’; or ‘you have heard what witness X said. What do you say is wrong with his evidence?’ The Commission refers to other subtleties such as ambiguous words and expressions, quick-fire questions, the raised voice, and the legal jargon that is sometimes used to replace plain English. It also makes the important point that in proving guilt, a critical issue is the mental state of the accused. It comments that an accused when cross-examined is liable to be asked questions directed to finding:
whether, when he did the act, he intended to cause grievous bodily harm, or to murder, or to prevent arrest or investigation; whether, when he acted, he adverted to the consequences and disregarded them; whether he did not think of the consequences at all; whether he well knew that goods he received were stolen; whether he intended to deprive somebody of the property in goods which he took; whether he genuinely believed he had a right to take them; whether he intended to hurt his infant child when he picked it up roughly, or was just being careless ... In addition the criminal law is concerned with other matters requiring delicate judgment, such as matters of causation and matters about the method of doing things.[66]
The Amsberg Committee[67] commented:
Many accused persons are so incapable of expressing themselves adequately that, whilst they can repeat a prepared statement from the dock, they cannot withstand skilled cross-examination without creating the false impression that they are lying—and in this regard the position of the innocent accused who is in fact a compulsive liar is even worse.
The New South Wales Criminal Law Review Division noted that:
almost every accused, as the result of the emotional strain necessarily upon him because of the possible consequences of the trial in relation to his liberty is at a disadvantage to all other witnesses.[68]
An accused person who appears to be lying runs a grave risk of being convicted. ‘An innocent untrained layman ... may give the appearance of lying simply as a result of prevarication caused by nervousness or ignorance.[69]
The special case of Aborigines should be noted. Inquiries made by the Select Committee of the Legislative Council of South Australia revealed evidence that some Aborigines are at a distinct disadvantage if cross-examined. A submission was made to that committee by the Aboriginal Legal Rights Movement supporting retention of the right to make an unsworn statement. Apart from arguing that the status quo should be preserved until the case for change is plain, the submission argued that a special case could be made out for Aboriginal defendants. It argued that, because of particular difficulties faced by Aborigines in our trial system, cross examination was not necessarily a tool which could be used effectively to establish veracity. It argued that:
Abolition of the unsworn statement would help neither the Aboriginal accused nor the society as a whole.[70]
It has been put to the Commission that judges, magistrates and juries will understand the reasons for any prevarication, unease or appearance of lying. It is suggested, however, that one cannot be confident in any one’s ability to accurately understand the causes of behaviour:
The great virtue of the English trial is usually said to be the opportunity it gives to the judge to tell from the demeanour of the witness whether or not he is telling the truth. I think that this is overrated ... I would adopt in their entirety (this being the highest form of judicial concurrence) the words of Mr Justice MacKenna:
I question whether the respect given to our findings of fact based on the demeanour of the witness is always deserved. I doubt my own ability and sometimes that of other judges, to discern from a witness’ demeanour, or the tone of his voice, whether he is telling the truth. He speaks hesitantly. Is that the mark of a cautious man, whose statements are for that reason to be respected or is he taking time to fabricate? Is the emphatic witness putting on an act to deceive me, or is he speaking from the fullness of his heart knowing that he is right? Is he likely to be more truthful if he looks me straight in the face than if he casts his eyes on the ground perhaps from shyness or a natural timidity? For my part, I rely on these considerations as little as I can help.[71]
Psychological research supports these reservations about the value of demeanour in divining whether a witness lies or tells the truth.
― Landis.[72] The facial expressions of people experiencing particular emotions were photographed. Snapshots were taken of subjects while viewing pornographic pictures, sniffing a bottle of ammonia falsely labelled ‘syrup of lemon’, or reaching in darkness into a bucket containing live frogs. The subjects tended to react differently and there were few patterns that consistently indicated a particular emotion or class of emotions. Moreover, any one facial expression was classified differently when different observers scrutinized the photos. The results suggest that facial expressions cannot be categorized into clearly defined and mutually exclusive types which is necessary if they are to be a sound determinant of a witness’ emotions or state of mind.
― Ekman and Fresein.[73] Subjects were shown silent, videotaped extracts from interviews of young trainee nurses. Their task during the interview shown on tape was to convince the interviewer that a stressful film they had watched was a pleasant one. The nurses were lying, and were trying to be credible while doing so. Other extracts showed them while speaking honestly. In the experiment, observers were asked to judge whether the facial expressions seen on videotape were made by a person who was speaking honestly or by someone who was speaking dishonestly. It was found that the number of persons whose behaviour was accurately judged by more than half the observers was no better than would be expected by chance. In addition, some of the nurses were good facial liars, the great majority of the observers having called them honest during the deception session. Others apparently were poor facial liars, since the great majority of the observers called them dishonest during the deception. Other nurses’ facial behaviour must have been contradictory or confusing, since the observers were about evenly divided as to whether they were being honest or deceptive. In the same experiment, the subjects were asked to assess the honesty of the speakers by scrutinizing either the facial expressions or the bodily movements of the speaker. It was found that body movements assisted more than facial expression in determining the honesty of a speaker only when the observer was acquainted with the non-verbal behaviour and mannerisms of the speaker. Where the observer was not acquainted with the speaker, neither the facial expressions nor the bodily movements assisted him in most cases.
―Brown, Deffenbacher & Sturgill.[74] The mere fact that a witness exudes confidence does not mean that his testimony is sound. While it is well established that for a particular person there is a relationship between confidence and the accuracy of recall, there is no consistent evidence that confidence is a general predictor of accuracy.
There is also evidence that the manner and appearance of the witness may actually mislead the fact-finder about the value of the testimony:
― Thornton.[75] It was found that a smile created a favourable impression which made testimony more acceptable, while an unsmiling witness created suspicion. Estimates of intelligence were related to the wearing of glasses, so that a smiling bespectacled witness’ testimony was likely to carry unfair weight compared with a witness of different appearance. There was also a ‘halo’ effect.
Once a witness has made a favourable impression on one point, his worth on all other points tends to be overestimated. Brunswick found that although intelligence and energy correlate only 0.28 on tests, they correlate 0.84 in the judgement of others. Thus, having once decided that the witness was intelligent, the subjects tended to endow him with a higher degree of other positive attributes than he really possessed.
― Maier and Thurber.[76] The effect on a mock jury of watching a live interview was compared with reading a transcript of the same interview, and with hearing a tape recording of it. A role-playing interview was used. The results indicated that readers and listeners were significantly better judges than viewers. Seventy-seven per cent of them accurately detected whether he was honest or dishonest. Only 58 per cent of the viewers, however, had the same success. It was concluded by the authors of the experiment that the visual cues of the interview—ie, the facial expressions and other mannerisms and gesture—served primarily as distractors, lowering the proportion of accurate decisions.
• The Problem of the Accused with Prior Convictions. The Victorian Law Reform Commissioner refers to the pressures on police officers and the temptation for them to fabricate evidence of the guilt of any accused, particularly where information implicating the accused has been supplied by a source such as a trusted informer. The temptation, he argues, must be particularly strong where the accused has a criminal record. The problem facing such an accused is that he can run the risk of his prior record being exposed in cross-examination, should he allege fabrication of the alleged confession.[77] This is the case also in other situations where it may be necessary in the presentation of his case for an accused person to attack the character of the Crown witnesses:
The right to make an unsworn statement ensures that an accused who has a criminal record and who makes such a statement will be tried on the facts that can be established against him, and not on his record, under all circumstances except when he attempts to raise his own good character.[78]
The Victorian Law Reform Commissioner concluded his comments on this aspect with the following:
It needs repeating that our system of criminal justice concerns itself not only with clearing the innocent but also with ensuring that the guilty are convicted only by proper means. If a confession, even by a person who is guilty, is fabricated and conviction depends upon the acceptance of that confession, it seems wrong and conducive to the ultimate corruption of the police force if that sort of evidence is allowed to be put before the court. And so, in such circumstances, it seems proper that an accused person should be able to give his story from the dock without oath and without liability to cross-examination in which, because of his allegation against the perfidy of the police officers concerned, he is liable to have his own criminal past thrown in his face with a strong probability that he would not be believed on his oath.[79]
• The Accused Should Not Have to Provide Evidence Against Himself. It was argued by the Council of the New South Wales Bar Association that:
The proposed abolition strikes at the principle, embedded in the criminal law, namely that from the moment an accused person falls under suspicion and until the conclusion of his trial he need not answer a single question unless he chooses. The proposed amendment to the law would have the practical effect in many cases of forcing an accused person into the witness box to give evidence and of necessity answer questions of cross-examination.[80]
Those who argue for abolition argue that the accused would not be compelled to say anything. He can simply refrain from giving evidence. The point being made by the Bar Association, however, is that the right to choose to make an unsworn statement instead of giving evidence on oath or remaining silent is a valuable compromise between the two positions.[81] To abolish the unsworn statement would ‘take away the right to speak free from interrogation at any stage of an enquiry into criminal guilt.’[82]
• The Risk of Accidental False Admissions. This point is noted by the New South Wales Law Reform Commission. It notes the argument that the right to make an unsworn statement is often exercised through fear that the accused may make an admission in cross-examination which was not intended. It argues, however, that the occasions when an accused or other witness makes a statement which is untrue, and which is not soon credibly retracted, would be far outweighed by occasions where a true admission is made by accident. It might be said, however, that the position of an accused is very special and there could be a grave risk of wrongful conviction where the accused, under the stress of the situation and the questioning of a skilled cross-examiner, could well make a most damaging admission which was not true and which, however quickly retracted, was nonetheless accepted and destroyed the accused’s credibility. This argument relates back to the problem of the accused who is not equipped to cope with the rigours of cross-examination.
• Other Legitimate Reasons for not Submitting to Cross-Examination. In opposing the proposal of the English Criminal Law Revision Committee, the Bar Council of England and Wales argued that:[83]
There will be, always, some accused who just cannot face going into the witness box in public for a variety of reasons; we do not see why they should be forced to do so. For example the accused in sexual cases might invite complete ruin in his private life by giving evidence on oath and thus enabling cross-examination on his association with the complainant notwithstanding that the actual allegation upon which he is being tried is untrue.
The New South Wales Law Reform Commission suggests that such persons would constitute a very small class if they exist.[84] If this is so, the point is nonetheless one that must be borne in mind. There can be cases where the accused wishes to avoid giving evidence on oath for reasons other than guilt. Other examples suggested to the Commission are:
• the accused who does not wish to have to admit facts which could destroy reputations or valued personal relationships;
• the accused who has told untruths for reasons other than a consciousness of guilt;
• the accused medical practitioner who wants to limit the detail of his evidence for reasons relating to his duty to his patients;
• the accused who does not want to disclose where he was on the night in question.
587. Arguments Against—No Cross-Examination of the Accused. The Victorian Law Reform Commissioner identifies as the main argument for abolition of the right to make an unsworn statement the proposition that:
all factual material put before a jury should be able to be tested by cross-examination. Cross examination is directed along two lines—the first, questioning directed to ascertaining the facts whether they be the physical acts and happenings involved in the crime charged or the motives or intentions behind those acts, and the second, questioning directed to test the truth of the witness’ evidence, to disclose the motive for lying and so on ... It is generally thought this is the best test yet devised both to assess truth in statement and to deter lying ... It has been further argued that this is particularly important in the case of the person accused because if guilty he has the strongest motive for lying.[85]
It is argued that:
It is a significant departure—and the only one—from a system based on the principle of evidence and examination and cross examination.[86]
The Criminal Law and Penal Methods Reform Committee of South Australia, in arguing for abolition of the right, took the view that this was the major objection to retention of the right. It put its argument in these terms:
There is no method of testing its veracity except by opposing it to the evidence of witnesses who have been called to give evidence and have been cross examined. The accused is in danger of conviction and of suffering a penalty and the witnesses are not. Nevertheless it must be a most unedifying spectacle for a jury to see and listen to a young girl, the prosecutrix in a charge of rape, being stringently cross-examined and subsequently to hear the accused merely read a statement giving his version of what happened without being exposed to any questioning at all.[87]
The spectacle ceases to be ‘unedifying’, however, if one remembers that the criminal trial is an accusatorial system in which the prosecution has the burden of proving the charges and the accused is presumed to be innocent and is under no obligation to give the prosecution any assistance. In commenting on the above argument, the Victorian Law Reform Commissioner stated that:[88]
it is argued forcibly and correctly that not all persons charged with criminal offences are guilty, and amongst the innocent as amongst the guilty there are those who dread cross-examination, who suffer from a sense of inadequacy in the face of a skilled exponent of the art, or who have something shameful to hide unconnected with the charge but which they might fear being brought to light in an attack on their credit.
He went on to argue that in a great number of c4minal trials, both innocent and guilty accused are in their teens or early twenties, have a limited education and a poor command of English, and have no experience or skill in the handling of hostile questioning.[89] The Select Committee of the Legislative Council of South Australia questioned the assertion that cross examination is necessarily the best method of establishing the truth. It stated:
The principal argument produced in favour of abolition is that cross-examination is the tool by which the truth is obtained in court. The Committee accepts the evidence submitted which indicates that this is not necessarily true. In particular, cross-examination will often fail to establish the truth of the matter where there are cultural differences which may influence a defendant’s demeanour in or reaction to the court, such as where the defendant is a tribal aborigine; nor will cross-examination be helpful in arriving at truth where the defendant has a limited understanding of the language or circumstances, is of limited intellectual capacity, or is confused or frightened.[90]
Underlying this argument is the assumption that, if the unsworn statement is abolished, accused people will give sworn evidence. Some recent research conducted in Singapore casts some doubt on that assumption.[91] In 1976, the right to make an unsworn statement in Singapore courts was abolished. In addition, the trial judge was required to advise the accused of his options—silence or sworn evidence—and to warn him that, if he refuses to be sworn, adverse inferences may be drawn against him. The changes were intended to induce accused persons to testify. The study revealed an increase of 4.8 per cent in the number of those who give sworn evidence. This, however, was not statistically significant and the study concluded that the changes had not affected the decision whether or not to give sworn evidence. The results were as follows:
|
|
Testified | Refused to Testify | Made Unsworn Statement | Total | %Testified |
| Pre-amendment | 156 | 12 | 17 | 185 | 84.3 |
| Post-amendment | 115 | 14 | (right abolished) | 129 | 89.1 |
It is difficult to draw conclusions from these results for Australia. An important distinction is that a considerable proportion of accused persons make unsworn statements in Australian courts. Thus abolition of the right to make an unsworn statement might have an effect. The Singapore experience, however, casts some doubt.
588. Arguments Against—A Device to Assist the Guilty. Another argument advanced for abolition is that it allows the professional criminal to lie without the appropriate test applied to other witnesses and thus helps him to escape conviction. Whether the giving of an unsworn statement is advantageous or not has been the subject of statistical investigation by the Victorian Law Reform Commissioner and by the Select Committee of the Legislative Council of South Australia. They have found the following:
• Victorian Law Reform Commissioner. Crown Law Department statistics kept since 1972 were used. Following amendments to the legislation which enabled unsworn statements to be given at any time that the accused wished during the course of evidence for the defence and also gave the accused the right of reply in all cases, the numbers of accused making unsworn statements rose. The statistics showed, however, that notwithstanding the increase in the number of unsworn statements being made after 1977 there had been a marginal increase in the conviction rate for defendants standing trial. Prior to 1977 the conviction rate at trial fluctuated around 50 per cent. In 1978 it rose to 59 per cent, fell to 54 per cent in 1979 and rose to 58 per cent in 1980. From this information, the Victorian Law Reform Commissioner argued that, in Victoria, there has been no noticeable change in the conviction rate by reason of the growth of unsworn statements. In addition he argued that the person who made an unsworn statement did not appear to have a better chance of an acquittal than the person who gave sworn evidence. These statistics rather suggested that the chances are substantially less. It is not possible to establish from the information available the number of persons who are guilty but who succeed in being acquitted after making an unsworn statement. The proposition advanced by the Victorian Law Reform Commissioner, however, is that it is possible to give an upper limit for such cases. He states:
The percentage of defendants standing trial who successfully made an unsworn statement in 1977 was 14 per cent. The corresponding figures for 1978, 1979 and 1980 were 11 per cent, 13 per cent and 9 per cent respectively. This is the Maximum proportion of defendants who could have successfully misused the right to make an unsworn statement. It may be more meaningful to express this upper limit of abuse in terms of the total number of persons standing trial and pleading, in which case the percentages were between 3 and 4%.[92]
• Select Committee of the Legislative Council of South Australia. It examined the records of the Supreme Court and Adelaide District Criminal Court relating to criminal trials. The Committee argues that, in the case of Supreme Court trials:
Statistical analysis shows that in 1980 those accused making an unsworn statement were significantly more likely to be found guilty than those giving sworn evidence; but for the 1979 data, there is no significant difference between those making unsworn statements as opposed to sworn evidence and the acquittal rates. The data for the two year combined showed the same significance as found for the 1980 data.
The data relating to trials for sexual offences indicated that:
... for sexual offences the acquittal rates were not significantly different according to whether sworn evidence or an unsworn statement was used by the defence.[93]
As to the Central District Criminal Court, a similar picture emerged. It concluded that:
The number of persons in the Supreme Court who successfully made an unsworn statement in 1977 was 11.27 per cent) and in 1980 was 5.19 per cent). This is the maximum number (16) of defendants who could have successfully misused the right to make an unsworn statement in the 2 year period. A more accurate way to express this upper limit of abuse is in terms of the proportion of all persons standing trial in Supreme Court and pleading not guilty: in 1979 it was 9 per cent and 1980, 5 per cent. It would be, however, a reasonable assumption that both amongst those who give sworn and those who make unsworn statements, there are those who truthfully assert their innocence.[94]
It also argued that in the Local and District Criminal Court, the number of defendants acquitted after making an unsworn statement in both 1979 and 1980 amounted to 4 per cent (thirteen defendants) of all those who pleaded not guilty. The statistics do not suggest that an accused person obtains any significant advantage by making an unsworn statement. The reason for this may lie in the comment the trial judge can make in Victoria and South Australia on the accused’s ‘failure to give evidence’. It has been said that:
Anyone appearing for an accused who has made an unsworn statement will impact of the comment.[95]
589. Arguments Against—The Right Encourages Lying by the Accused. It is argued that cross-examination can not only expose a lie but it can also discourage a person from lying.[96] It is difficult to assess this argument. Experience shows that many people will lie notwithstanding that they are on oath and are subject to cross-examination. It must be conceded, however, that if there is a deterrent in the oath and in cross-examination, it is absent where a person makes an unsworn statement. The Victorian Law Reform Commissioner commented:
The claim that accused are less daunted in telling lies in their unsworn statements rests on the belief in the efficacy of cross-examination to prevent lying or rather attempting to lie and perhaps in part on a belief that some will be deterred by the administration of an oath from breaching its sanctity. One can be somewhat sceptical in this day and age of the deterrence of the oath because of its sanctity, particularly where liberty is at stake. As to the efficacy of cross-examination to daunt attempted lying opinions will differ. Such statistics as there are would seem to show that perhaps juries come to the conclusion that more accused who elect to make an unsworn statement lie than tell the truth but of those who elect to give evidence on oath over half are apparently disbelieved and it could be assumed that juries regard them as lying. The argument is an emotive one and seems of little consequence in assessing this issue.[97]
Rendering an accused liable to perjury could redress any evils that exist.
590. Experience of the Abolition of the Right. The Select Committee of the Legislative Council of South Australia enquired in Western Australia and Queensland as to the impact of Ahp4bolition of the right to make unsworn statements in those States. It received conflicting comments:
• Queensland. Its enquiries of the Minister of Justice and Attorney-General did not produce any comment as to the results experienced in Queensland. Informal comment was received from the Public Defender’s office and the Aboriginal Legal Service in Queensland.[98] The response from the Deputy Public Defender was that although the abolition had not been welcomed, he felt that ordinary defendants had not been disadvantaged by it.[99] Some defendants, however, were in a different position because cultural differences reduced their ability to cope with cross-examination. He mentioned Aboriginal defendants and some other defendants as being in this category. The Aboriginal Legal Service argued that there were problems facing many Aboriginal defendants. It was stated that:
many Aboriginal defendants tended to agree with any proposition put to them by persons in authority, and often found difficulty with the concept of ascribing ‘reasons’ to their actions.
The Aboriginal Legal Service, however, felt that there:
probably has been no significant change in conviction rates since the abolition of the unsworn statement.
• Western Australia. The Select Committee received a report from the Attorney-General of Western Australia that:
No instance has arisen where it has ever been suggested that an accused person suffered an injustice by reason of his having had to elect between maintaining his silence in the dock and getting into the witness box to give evidence on oath ...
The report expressed confidence in the opinion that abolition had not caused injustice to accused persons but went on to state:
It cannot ... be said with the same degree of confidence, that abolition has had any appreciable effect on the conviction rate. ... Overall conviction rates have exhibited the same sort of upward and downward fluctuation from time to time as was the case before abolition.[100]
The Select Committee received information from solicitors and counsel working in the Aboriginal Legal Services Commission and the Legal Aid Commission of Western Australia. It commented that:
They felt that they were unable to make any substantial comments on the absence of the unsworn statement, but that, although in general agreement with the Attorney-General’s statement, some defendants were clearly disadvantaged by not having the option to make an unsworn statement. The disadvantage was emphasised particularly in relation to Aboriginal defendants.[101]
591. Conclusion. It is proposed that the right to make an unsworn statement be retained. Although it is clear that the original reason for allowing an accused person to make an unsworn statement has ceased to exist, there nonetheless remain valid reasons for continuing to maintain the right. These include:
• the principle of minimising the risk of convicting the innocent;
• the problem of the accused with prior convictions whose case requires an attack to be made on the character of the prosecution witnesses;[102]
• the fact that abolition of the right involves a departure from the position prevailing in most jurisdictions that an accused person may speak free of interrogation at all stages of the criminal process.
592. Proposal—Retention but Reform. Specific criticisms of the right do not warrant abolition but do warrant substantial reform to the practice and procedure associated with the right.
• Evidentiary Character. Under existing law, the unsworn statement forms part of the evidence. It is proposed that an unsworn statement be treated for the purpose of the proposed rules of evidence as evidence and therefore subject to all of those rules of evidence. Treating the unsworn statement in this way should resolve the uncertainty and differences over issues such as whether the statement may include irrelevant or hearsay material; when the statement may be made; whether the statement may be opened to the court by counsel; whether the Crown may lead evidence in rebuttal; whether exhibits may be tendered by the accused. The accused, however, should not be liable to cross-examination, but should be liable to prosecution for giving false testimony. Such a step is consistent with the predominant view of the character of the unsworn statement.[103] It also opens the way to control of the making of the unsworn statement—one of the major areas of criticism. The prosecution will be able to object to inadmissible material and the trial judge rule on such objection.
• Preparation. As at present the emphasis should be on the statement being that of the accused. Where legally represented, however, the accused must be allowed the assistance of legal advice. This appears to be the position at present but the degree of assistance officially permitted varies.[104] An advantage of permitting legal assistance is that it will help in controlling the content of the statement.
• Presentation. It is proposed that written statements be permitted. They are on occasions permitted in New South Wales and generally permitted in three other States. Their use enables greater control and an orderly and complete presentation of material. It seems that it is a mixed blessing for the accused as the presentation can be mechanical.[105] It is also proposed that counsel, with leave of the court, be permitted to present the statement. It appears that in Tasmania counsel has usually read the statement. It is suggested that the accused should, as a general rule, present his account of what happened but there will be occasions where, for cause, his counsel should be permitted to read it.
• Prompting Accused. It is proposed that counsel be able, with the court’s leave, to remind the accused of any omission from his statement. This is permitted in several States.[106]
• Alternative Right. The right should be available as an alternative to the accused, not as a right additional to that of giving sworn evidence. There does not appear to be any justification for allowing an accused to do both and where such right does exist, for example, in New South Wales, it has been used to state in the unsworn statements matters which could not have been stated from the witness box. Giving sworn evidence, however, should be permitted by leave. The unrepresented defendant particularly in the magistrates’ courts needs this option.[107] Where sworn evidence is given, it would be confusing and impractical to limit cross-examination to the sworn evidence. It is, therefore, proposed that cross-examination of the unsworn statement should be allowed in those circumstances. As a consequence the unsworn evidence should like the sworn evidence, be usable by and against all parties.[108]
• Perjury. Consistently with the evidentiary character of the statement, the accused should be liable to prosecution for perjury. This may also discourage instances such as the ‘Michael Johnston’ story used by alleged drug couriers in their trials and later shown to be a fabrication.[109] Any doubts that may exist about the application of the Crimes Act should be removed.[110]
• Advice. The accused should be advised of the options available to him in the presence of the jury. If he is not represented by a lawyer he should be warned of his liability to prosecution for any knowingly false statement that less weight may be given to his evidence if it is unsworn. This should be done in the absence of the jury. The defendant is usually made aware of his options. In addition, Victorian magistrates warn the defendant that sworn evidence will often carry more weight than unsworn evidence—the warning being in writing or oral or both. On occasions magistrates will also give the defendant the opportunity to repeat his unsworn statement on oath if they feel it could help his defence.[111]
• Joint Trials—Use of Statements. The predominant view of the law in Australia appears to be that the unsworn statement of one accused cannot be used against a co-accused and cannot be used for a co-accused.[112] This position may be justified on the grounds that it is of fundamental importance to minimise the risk of wrongful conviction and to ensure procedural fairness for all parties. Thus the co-accused and prosecution should be able to test fully by cross-examination any evidence adduced which may support the case of the other. The law is unsatisfactory, however, in requiring judges to direct juries that they cannot use the unsworn statement for or against a co-accused and requires the jury to perform a very difficult task. One may have doubts as to whether a jury really can ignore the unsworn statement when directed to do so. The present law would seem to prevent a co-accused through rebuttal evidence and comment from attacking such evidence.
One option is to permit the unsworn statement to be used for and against the co-accused in all circumstances. This has the merit of removing artificiality and enabling the co-accused to lead evidence to rebut the allegations in the unsworn statement and to use the unsworn statement when it assists and it enables the prosecution to use all material that assists its case. It means, however, that evidence can be used against an accused person that is not on oath and which the accused has not been able to challenge directly. Further it is not possible to come to any firm conclusion about whether this approach will increase the chances of wrongful convictions. It must be remembered that the allegations against the co-accused will be made by a person with very strong motives to pass the blame. Finally, so long as the out-of-court statement of an accused is not admissible against a co-accused, there will be many cases where the judge will have to give different directions to the jury for out-of-court and in-court statements.
The other option is to allow the unsworn statement to be used for but not against the co-accused. Such a proposal may be supported on the grounds that it minimises the risk of wrongful conviction. It, however, alters the present balance in the trial in favour of the accused and adversely to the prosecution. It also would introduce a more complex task for judge and jury—distinguishing the parts of the statement that assist the co-accused from those that do not, with the jury having to consider the former while ignoring the latter. A further variation would be to permit the co-accused to comment on the unsworn statement and to lead rebuttal evidence. It is thought, however, that this would unduly complicate matters. Apart from complexities about which evidence can be used for or against whom, the accused against whom the rebuttal evidence was led would have to have the right to meet any fresh evidence. If the rebuttal evidence is sworn, then the accused against whom it is led ought also to have the option of meeting any fresh evidence with sworn evidence. One should also consider whether he ought not to have the right to repeat his unsworn evidence on oath because of the danger that he may be wrongly convicted on the sworn rebuttal evidence of the co-accused notwithstanding directions about its use. There is likely to be great confusion.
The tentative proposal is that the present predominant view should be maintained—the statement of an accused may not be used as evidence for or against a co-accused. It appears to be the least unsatisfactory option. The task for the jury can be made easier in appropriate cases by having the jury consider the case against each accused separately and directing the jury on the evidence that relates solely to that accused.
• Comment on the Failure to Give Sworn Evidence. It is proposed that the trial judge be able to comment on the failure of the accused to give sworn evidence—as is the case in several jurisdictions at present.[113] The absence of such a power is unrealistic and can lead to the absurd situation that the reasonable queries of a jury cannot be answered without causing a mis-trial. In those jurisdictions where the judge may comment on the failure to give evidence great care is required. In Victoria, where the judge may comment on the failure to give unsworn evidence, it is now reasonably clear that the judge can advise the jury of the accused’s options—to remain silent, make an unsworn statement or give evidence on oath—and at the same time explain the difference between the two. The following remarks of a trial judge were approved by the Full Court:[114]
The accused has given his evidence by way of an unsworn statement from the dock. That has two consequences. The first is that the testimony that was given, unlike the rest of the evidence given in the case, is unsworn, that is, it is not given under the sanctity or sanction of an oath. The second consequence is that by giving his evidence from the dock instead of the witness box, as he has a perfect right to do if he so wishes, the accused does not thereby expose himself to cross-examination by counsel for the Crown. He becomes immune from questioning. The result has been, as you have seen, that the accused, by giving his evidence in the way he elected to do, has not been asked any questions by way of cross-examination by the learned Crown prosecutor. I say little more about it than that, but I mention these matters to you since it is for you to determine the force and persuasiveness of the evidence of the accused in those circumstances, and to determine the weight and reliance which you are prepared to place upon the evidence that he has given in the form of an unsworn statement to you from the dock, particularly as one of the most significant indications of the reliability and honesty of a witness is to watch his reactions and judge his demeanour when asked his or her evidence in question and answer form and when subjected to cross examination. This occurred with witnesses of the Crown and those of the defence, but you have not seen the accused cross examined. Because he has chosen not to go into the witness box you have not had a like opportunity with regard to him.
The judge’s final words to the jury were:
I remind you finally that the burden of proving that the accused murdered KC, from first to last, rests on the Crown. The accused has to prove nothing. He is under no obligation to say or do anything. The burden is entirely on the Crown, and that burden of proof which is on the Crown and which I pointed out to you at the outset of my charge is one that must be discharged beyond reasonable doubt.[115]
In Victoria it has been held to be a misdirection by the trial judge to say that, since the accused has offered no explanation as to the reasons for the not giving sworn evidence, it was open to the jury to infer that one reason was a fear the cross examination would expose weaknesses in the story told.[116] At the same time the view was expressed that if the trial judge had:
said no more than that such a fear might have influenced the accused in making their choices, no harm might have been done. But telling the jury that such an inference was open to them because the accused had given no. plausible explanation of the reasons for the choice amounted in the circumstances to a misdirection in law.[117]
The detail of the comment is a matter for the trial judge’s discretion. It appears, however, that comment on the failure to give evidence on oath must not contain criticism of the accused for not giving sworn evidence and must not suggest that any inference of guilt can be drawn from the decision. In R v Bathurst,[118] Chief Justice Lord Parker stated:
the accepted form of comment is to inform the jury that, of course, he [the accused] is not bound to give evidence, that he can sit back and see if the prosecution have proved their case, and that while the jury have been deprived of the opportunity of hearing his story tested in cross-examination, the one thing they must not do is to assume that he is guilty because he has not gone into the witness box.
The position in South Australia was discussed by Justice Cox in R v Dutton.[119] He first quoted Lord Salmon, speaking for the Privy Council:[120]
Much depends on the particular circumstances of each case. In the present case, for example, even on the approach that everything the respondent said in his unsworn statement was true, no jury (unless perverse) could have acquitted him on the ground of self-defence. There are, however, cases in which the accused makes an unsworn statement in which he seems to contradict or explain away evidence which has been given against him or inferences as to his intent or state of mind which would be justified by that evidence. In such cases (and their Lordships stress that they are speaking only of such cases) the judge should in plain and simple language make it clear to the jury that they may perhaps be wondering why the accused had elected to make an unsworn statement; that it could not be because he had any conscientious objection to taking the oath since, if he had, he could affirm. Could it be that the accused was reluctant to put his evidence to the test of cross-examination? If so, why? He had nothing to fear from unfair questions because he would be fully protected from these by his own counsel and by the court. The jury should always be told that it is exclusively for them to make up their minds whether the unsworn statement has any value, and, if so, what weight should be attached to it; that is for them to decide whether the evidence for the prosecution has satisfied them of the accused’s guilt beyond reasonable doubt, and that in considering their verdict they should give the accused’s unsworn statement only such weight as they think it deserves.
He went on:
Of course, there are limits to what a judge may fairly say. He must be careful, for instance, that the jury does not draw a general inference of guilt from nothing more than the failure of an accused to give evidence ... He must not tell the jury that sworn evidence must be preferred to unsworn evidence. And there will be cases in which it will be better for the Judge to say nothing on the topic at all, or at least to deal with the subject with a very light hand. There can be no general rule about this. It will all depend on the circumstances of the particular case.[121]
Consideration has been given to the possibility of accused and prosecution commenting.
(a) The Prosecution. In most jurisdictions the prosecution may not comment on the failure to give sworn evidence. It is proposed to continue this approach. Great care would be required in commenting on the failure to give sworn evidence. The comment, consistently with the judge’s power and to avoid injustice, would have to avoid criticism of the accused for not giving sworn evidence and avoid suggesting in any way that guilt may be inferred from the decision. Through lack of experience or excessive zeal, prosecutors could easily go too far in their comments and could abort a trial that was reaching its conclusion. The hazards of criminal trial procedure would be increased.
(b) The Accused and Co-accused. It is proposed that there be no change to the law—the co-accused may comment.[122] Any comment he makes may be commented on by the trial judge—as at present.
Limits are imposed on the comments that may be made. These limits accord with present law[123] applying in those jurisdictions where judicial comment is allowed. A further issue for consideration is whether the legislation should also state what comments may be made.[124]
• Summary Proceedings. It is only in Victoria and Tasmania that a defendant may make an unsworn statement in summary proceedings. It may be argued that, in the interests of greater uniformity, the legislation should not allow the defendant in summary proceedings to make an unsworn statement. However, arguments of principle for retention of the right apply equally in criminal trials in superior and inferior courts. The Victorian Law Reform Commissioner reported that Victoria’s magistrates supported retention of the right. The view was expressed that:
Those educationally and socially disadvantaged are prone to make unsworn statements partly from general fear felt in the environment, and from a feeling of apprehension of leaving the safety of their position in the court to cross the floor and enter the witness box. ... In actuality what this kind of defendant does can be regarded as making a statement not on oath, and this mixture of statement and argument or plea can be called his defence.[125]
They point out that:
much of that which Magistrates’ Courts have to consider in reaching a decision is said from the floor of the court by the defendant personally or from the bar table by his legal representative. In their view, the system operates successfully and magistrates as tribunals of law and fact develop a real ability to sift the relevant from the irrelevant. They see no serious problems in
relation to abuse of the unsworn statement and favour its retention.[126] The magistrates also submitted that:
if the right to make an unsworn statement is removed or statutory restrictions placed upon its contents, the operation of the Magistrates’ Courts would be affected ... delay would be caused which is a serious matter in courts which have a very heavy daily workload of cases.[127]
It is proposed that the right be available in all criminal trials.[128]
• Evidence of Bad Character. To discourage scurrilous attacks upon the character of the prosecution witnesses it is proposed that the accused who makes an unsworn statement be placed in the same position, so far as is possible, as the accused who gives evidence. Thus where the latter could be cross-examined about matters reflecting on his character, it should be possible for the prosecution to lead evidence in chief about the accused who makes an unsworn statement.[129]
593. Person Producing Documents. Under existing law a person served with a subpoena to produce a document in court may produce it to the court without being sworn. It is recommended that the existing law be retained. Strictly, such a person is not giving evidence. It is simpler and less time consuming to permit a person called to produce documents to stand in the body of the court and produce them to the court. Evidence needed on the issue of compliance with a subpoena, or to authenticate the documents, will be given by persons who are sworn and they may include the persons producing the documents.
594. Judges and Counsel. Judges and Counsel may give unsworn evidence about matters occurring in earlier proceedings in which they were involved. The proposal of the New South Wales Law Reform Commission should be adopted, of having all witnesses give evidence on oath or affirmation.[130] There does not appear to be any justification for this privilege.
595. Witnesses not Competent to give Evidence on Oath. It is not proposed that witnesses who do not understand the nature and consequences of the oath shall give unsworn evidence.[131] It is proposed that all witnesses may be sworn and that their evidence be received provided that they are psychologically competent.[132]
[1] See psychological research below, para 564. As to general guiding principles see above, para 82.
[2] Scottish Law Commission, Memorandum No 8, Draft Evidence Code, Edinburgh, 1968 (SLC 8).
[3] In England, the Magistrates Association (1968, by a vote of 140 to 130) and the Law Society (1970) called for abolition of the oath—see Criminal Law Revision Committee, England and Wales. Eleventh Report, Evidence (General) HMSO, London, 1972, 165 (CLRC).
[4] Scottish Law Commission, Memorandum No 46, Law of Evidence, Edinburgh, 1980.
[5] Federal Rules of Evidence 1981 (US) r 603.
[6] New South Wales Law Reform Commission, Discussion Paper, Oaths and Affirmations, Govt Printer, Sydney, 1980, para 1.26 (NSWLRC DP).
[7] Comment by Commissioner La Forrest, Law Reform Commission of Canada, Report on Evidence, Information Canada, Ottawa, 1975, 87 (LRC Canada).
[8] CLRC, 165.
[9] RC Sorenson, ‘The Effectiveness of the Oath to obtain a Witness’ True Personal Opinion’ (1956-57) 47 Journal of Criminal Law, Criminology and Police Science 284, 285; see also JH Wigmore, A Treatise on the Anglo-American System of Evidence, 3rd edn, Little, Brown & Co, Boston, 1940, para 1827.
[10] J Bentham, Rationale of Judicial Evidence (1843) in Bowring (ed) Works of Jeremy Bentham, vol VI, Tait, Edinburgh, 308.
[11] A recent survey, The Australian Values Study Survey, found that while 79 per cent believed in God (either as a personal God or some sort of spirit or life force), 49 per cent believed in life after death, 34 per cent believed in hell, and 57 per cent in heaven. It also found church attendance low—22 per cent—see the Bulletin (24 January 1984) 28.
[12] See Wigmore on Evidence, para 1816. Also NSWLRC DP, Oaths and Affirmations, para 1.2.
[13] ibid.
[14] R v Horsburgh (1966) 55 DLR (2d) 289, 305.
[15] R v Hayes [1977] 2 All ER 288, 291.
[16] CLRC, 163.
[17] SLC 8, 66.
[18] NSWLRC DP, Oaths and Affirmations, para 1.12.
[19] LRC Canada, 86-7.
[20] CLRC, 165.
[21] NSWLRC DP, Oaths and Affirmations, para 1.17.
[22] CLRC, 164-5.
[23] NSWLRC DP, Oaths and Affirmations, para 1.17.
[24] W Stern, ‘The Psychology of Testimony’ (1939) 34 Journal of Abnormal and Social Psychology 3, Dallenbach’s experiments cited in IML Hunter, Memory, Penguin Books, Harmondsworth, 1964, 175; DS Greer, ‘Anything But the Truth’? The Reliability of Testimony in Criminal Trials’ (1971) 11 British Journal of Criminology, 131, 147-8; WH Marston, ‘Studies in Testimony’ (1924) 15 Journal of Criminal Law and Criminology 5, 12.
[25] L Re & TH Smith, Evidence Research Paper No 6, Sworn and Unsworn Evidence, Australian Law Reform Commission, Sydney, 1982, 34-18, 69.
[26] Ontario Law Reform Commission, Report on the Law of Evidence, Govt Printer, Toronto, 1976, 121 (OLRC).
[27] See Australia, Bureau of Statistics, 1976 Census: Population and Dwelling: Cross-Classified Table (Cat No 2426.0) and Population and Dwellings: Summary Tables (Cat No 2417.0.)
[28] See Australia, Bureau of Statistics, 1981 Census: Population and Housing (Cat No 81.303).
[29] Federal/Provincial Task Force, Canada, Report on Uniform Rules of Evidence, Carswell Co, Toronto, 1982, 240.
[30] The steps were recommended by the Victorian Chief Justices Law Reform Committee in its Report on Oaths and Affirmations, Sub-committee Report adopted in 1981.
[31] L Vick, Secretary of the Rationalist Society, Letter to the Editor The Age (6 August 1982).
[32] Dr J Hill, Catholic Institute of Sydney, Submission (13 May 1982).
[33] National Police Working Party, Submission (1 February 1983) 23.
[34] TW Smith QC, Submission (20 March 1982) 1-2.
[35] See option given as to form of oath of allegiance in recent Australian Citizenship Amendment Bill 1983. It is also necessary to give the judge the power to direct a witness to affirm to cover the situation where the witness wishes to swear a religious oath but it is not practicable to do so or the witness refuses to make a choice.
[36] The Commission has been advised that on occasions in New South Wales counsel cross-examine witnesses who have not taken a religious oath about the nature of their religious belief. This has been criticised as embarrassing and time wasting. But it can be controlled by the trial judge.
[37] LRC Canada, Draft Evidence Code s 50; OLRC, Draft Evidence Bill s 3(1); NSWLRC DP, Oaths and Affirmations. 49, where a signed acknowledgement is suggested—not advanced because it could cause delay.
[38] Federal/Provincial Task Force, 239.
[39] The law in a number of jurisdictions—see Appendix C, para 18.
[40] The issue of psychological competence is dealt with above, para 521-4.
[41] The law in a number of jurisdictions—see Appendix C, para 15, 16 eg, a deity may be used that is not appropriate: the witness may not recite the oath but simply say I swear’, after a recitation by a court official.
[42] On the oath as a performative utterance—see M Weinberg, ‘The Law of Testimonial Oaths and Affirmations’ (1976) 3 Mon L Rev, 25.
[43] Justice MD Kirby, the former Chairman and member of the Evidence Division at the time the proposals were finalised.
[44] See Northern Territory Law Reform Committee, Report No 10, Oaths and Affirmations by Witnesses in Court Proceedings, Darwin, 1983, 8. The Member was of the opinion that failure to comply strictly with the form should not invalidate the promise.
[45] This was the view of the minority in the Northern Territory Law Reform Committee report. The majority favour abolition of oaths.
[46] Commonwealth of Australia Constitution Act 1900 s 116.
[47] H Fry, Interview with Professor Hans Mol on ‘Australia—the Secular Society’, in The Leader (25 March 1984) and see also H Mol, Religion in Australia, Nelson, Melbourne, 1971.
[48] Justice MD Kirby.
[49] See Draft Bill, Schedule 1.
[50] See above, para 511.
[51] See above, para 563, 570.
[52] [1744] EngR 927; (1744) 1 Atk 21; 26 ER 16.
[53] See above, para 567—1.4 per cent included Hebrew, Muslim, Buddhist and other non-Christians.
[54] The second and third arguments were not advanced by the majority.
[55] See above, para 575.
[56] See para 566, 570.
[57] Law Reform Commissioner of Victoria, Report No 11, Unsworn Statements in Criminal Trials, Govt Printer, Melbourne, 1981, para 5.12 (VLRC11). A police survey of Melbourne Magistrate’s Courts and Metropolitan Children’s Courts during a twenty day period in October and November 1980 found that of 986 defendants, 1.9 per cent made unsworn statements and 10.5 per cent gave sworn evidence. The balance remained silent: Police Commissioners’ Conference Secretariat, Submission (19 April 1982) 10.
[58] South Australia, Select Committee of the Legislative Council, Final Report Unsworn Statements and Related Matters, Government Printer, Adelaide, 1981, 7 (SCLC SA).
[59] New South Wales Law Reform Commission, Discussion Paper, Unsworn Statements of Accused Persons, Govt Printer, Sydney, 1980, para 24 (NSWLRC DP). In 1973—a little less than 30 per cent in the Central District Criminal Court. The Commission’s researches suggest that, in the NSW District Court the estimated use varies from between 50 per cent to 90 per cent of cases.
[60] Abolition was recommended by: CLRC (England and Wales) para 104; Great Britain, Royal Commission on Criminal Procedure, Report, HMSO, London, 1981, para 4.67; Criminal Law and Penal Methods Reform Committee of South Australia, Third Report, Court Procedure and Evidence. Govt Printer, Adelaide, 1975, para 7.3; Tasmanian Law Reform Committee, Recommendations for Revision of the Criminal Code (No 1) Hobart, 1972 (the right was retained in subsequent legislation). Retention has been recommended by: VLRC 11; SCLC (SA); Criminal Law Review Division of New South Wales, Report (28 January 1977); Statute Law Revision Committee of Victoria, Report on the Right of an Accused Person to Make an Unsworn Statement, Govt Printer, Melbourne, 1972, para 27; Victorian Chief Justice’s Law Reform Committee, Report of Sub-committee, Abolition of Unsworn Statements in Criminal Trials, Melbourne, 1970.
[61] NSWLRC DP, Unsworn Statements, para 27-31, 42; Great Britain, Royal Commission on Criminal Procedure, Report, HMSO, London, para 4.67; CLRC (England and Wales) para 104; BW Beach, ‘Unsworn Statements in Criminal Trials’ (November, 1983) Police Life, 4.
[62] SCLC (SA) 4.
[63] Lord Reid commented:
You must bear in mind that an innocent accused person is often stupid. he is often slow, he is often overawed and generally nervous.
The result is that he must have a fair deal. (United Kingdom, Hansard H of L 14 February 1973, col 1612).
[64] NSWLRC DP, Unsworn Statements, para 33ff.
[65] R v McMillan (1967) 87 WN (Pt 1) (NSW) 387, 403 (Isaacs J).
[66] NSWLRC DP, Unsworn Statements, para 36.
[67] A criminal law committee under the chairmanship of Judge Amsberg QC. In its Report (23 August 1973) it stated that it had not been able to resolve the question of whether the right should be abolished. On the problem of lack of education see also NSW Criminal Law Review Division—extract cited in NSWLRC DP, Unsworn Statements, para 29.
[68] Cited by NSWLRC DP, Unsworn Statements, para 31.
[69] VCJC, Abolition of Unsworn Statements in Criminal Trials, 3.
[70] SCLC (SA) 3.
[71] Patrick (Lord) Devlin, The Judge. Oxford University Press, Oxford, 1981, 63.
[72] E Landis, ‘Studies of Emotional Reactions. Preliminary Study of Facial Expressions’ (1924) 7 Journal of Experimental Psychology 325-41 (a). For further discussion see L Re, ‘Oral v Written Evidence: The Myth of the ‘Impressive Witness’ (1983) 57 ALJ 679.
[73] P Ekman & WV Fresein, ‘Detecting Deception from the Body or Face’ (1974) 29 Journal of Personality and Social Psychology 288.
[74] Cited in DM Thomson, ‘Towards a more Efficient Judicial System: Fact and Fiction in the Courtroom’, Paper presented at the Magistrates Conference, Melbourne (12 March 1982).
[75] GR Thornton, ‘Effect of Wearing Glasses on Judgments of Personality Traits of People’ (1940) 28 Journal of Applied Psychology 203.
[76] NR Maier & JA Thurber, ‘Accuracy of Judgments of Deception when an Interview is Watched, Heard and Read’ (1968) 21 Personnel Psychology 23.
[77] VLRC 11, para 5.05f. Submissions received by the Commission suggest that in Victoria accused persons with prior convictions make up a substantial number of those who make an unsworn statement.
[78] NSWLRC DP, Unsworn Statements, para 46. The situation for an accused person who gives sworn evidence and who has prior convictions is not as serious in New South Wales as it is in other jurisdictions. This is because of amendments enacted prior to 1974. Nonetheless, in New South Wales an accused person may be cross-examined on his record if, amongst other things, he has cross-examined a prosecution witness about conduct other than conduct in the trial or in the circumstances giving rise to the charge or to the trial, so as to discredit that witness.
[79] VLRC 11, para 5.08.
[80] Cited in NSWLRC DP, Unsworn Statements, para 43. Note: The International Covenant on Civil and Political Rights, art 16, 3(g) provides that everyone should be entitled to the minimum guarantee, namely, not to be compelled to testify against himself. Note, if the right were abolished, an accused would have to give sworn testimony if he wished to challenge prosecution evidence of admissions allegedly made by him.
[81] id, para 42-5.
[82] VCJC, Abolition of Unsworn Statements in Criminal Trials. 5. In a submission to the Commission the argument was expressed in a different way—that the removal of ‘the right would make less effective the privilege against self-incrimination’ TW Smith QC, Submission (20 March 82).
[83] Cited in NSWLRC DP, Unsworn Statements, para 54.
[84] id, para 55.
[85] VLRC 11, para 5.01-5.02.
[86] NSWLRC DP, Unsworn Statements, para 29, quoting the report of the Amsberg Committee (1973).
[87] Criminal Law and Penal Methods Reform Committee of South Australia, Third Report, Court Procedure and Evidence, Govt Printer, Adelaide, 1975, para 7.3.3.
[88] VLRC 11, para 5.03.
[89] id, para 5.04.
[90] SCLC (SA) 15.
[91] See Criminal Procedure Code of Singapore, s 173, 178, 181, 188, 195 and Meng Heon Yee, ‘Diminishing the Right to Silence: The Singapore Experience’ [1983] Crim L Rev 89, 96.
[92] VLRC 11, para 5.16. The abovementioned Police survey figures show I accused was acquitted in the magistrate’s court (5 per cent) and 18.49 per cent in the Supreme and County Court—see n 58 above.
[93] SCLC (SA) 7.
[94] id, 8.
[95] VCJC, Abolition of Unsworn Statements in Criminal Trials, 4.
[96] VLRC 11, para 5.27; NSWLRC DP, Unsworn Statements, para 80-1; see also Police Commissioners’ Conference Secretariat, Submission (19 April 1982) 22.
[97] ibid.
[98] SCLC (SA) 6.
[99] The Commission’s own enquiries reveal a similar view—that in practice no detrimental effect has been suffered. It has been suggested to the Commission, however, that the use of the right had been ‘relatively infrequent’. Further, there has been no formal review of the operation of the changes.
[100] SCLC (SA) 6.
[101] ibid.
[102] Note: this is an issue which can be dealt with separately—cf cl 84 below.
[103] Appendix C, para 21.
[104] Appendix C, para 20.
[105] Criminal Bar Association of Victoria, Submission (27 February 1981).
[106] See Appendix C, para 20.
[107] See Victorian experience—n 111.
[108] As to use of unsworn evidence, see text accompanying n 112.
[109] Judge BR Thorley, Submission (8 June 1982). Note also accused giving different accounts of the facts at the trial and on sentencing.
[110] Crimes Act 1914 (Cth) s 35, 36.
[111] Information obtained from Victorian magistrates and see Magistrates (Summary Proceedings) Act 1975 (Vic) s 59(4).
[112] R v Kelty [1946] NSWStRp 16; (1946) 46 SR (NSW) 344; R v Simpson [1956] VicLawRp 35; [1956] VLR 490; R v Penberthy [1978] ACL DT823; Appendix C, para 24.
[113] See Appendix C, para 20. For examples of warnings, see R v Simic [1979] VicRp 49; [1979] VR 497, 499; R v Dutton (1979) 21 SASR 356, 379.
[114] R v Simic [1979] VicRp 49; [1979] VR 497. 499.
[115] id, 500.
[116] R v Perceval [1981] VicRp 62; [1981] VR 624.
[117] id, 629.
[118] [1968] 2 QB 99, 107-8 and see discussion in JA Gobbo, D Byrne & JD Heydon, Cross on Evidence, 2nd Aust edn, Butterworths, Sydney, 1979, para 15.6, where the English authorities on judicial comment about the failure of the accused to give evidence are collected. See also, CR Williams, ‘Silence and the Unsworn Statement: An Accused’s Alternatives to Giving Sworn Evidence’ (1976) 10 MUL Rev 481.
[119] (1979) 21 SASR 356, 379.
[120] DPP v Walker [1974] 1 WLR 1090, 1096.
[121] (1979) 21 SASR, 356, 379; citing Peacock v R [1911] HCA 66; (1911) 13 CLR 619; R v Jansen [1970] SASR 531; Kops v R, ex parte Kops [1894] UKLawRpAC 37; [1894] AC 650; R v Brown (1974) 8 SASR 582.
[122] Cross on Evidence, para 15.6; R v Wickham (1971) 55 Cr App R 199.
[123] See Appendix C, para 20.
[124] Concern has been expressed that a provision limiting comment might be treated by overcautious judges as limiting the extent to which they might comment on the content of the unsworn statement, the accused’s rights, the differences between the sworn and unsworn evidence and the fact that it is relevant to the question of the weight to be attached to the unsworn statement that it was not given on oath and not subject to cross-examination. It has been suggested that a clause be included stating what may be said: ‘Without limiting the generality of sub-section (1), the comment may include reference to the right of the defendant to give unsworn evidence, the differences between sworn evidence and unsworn evidence and the power of the court, in determining the probative value of evidence, to take into account the fact that the defendant did not give sworn evidence and was not cross-examined.’ The opposing view is that the overcautious judge will be at least as inhibited by the statement of what he can say as by the statement of what he cannot and to include both may lead to uncertainty and confusion. The provision limiting comment accords with the present law in those jurisdictions where judicial comment may be made.
[125] VLRC 11, para 7.04.
[126] id, para 7.06.
[127] ibid.
[128] The Select Committee of the Legislative Council of South Australia recommended that consideration be given to extending the right to make an unsworn statement to summary proceedings—SCLC (SA) 10.
[129] A proposal along similar lines was advocated by the VLRC 11, para 5.18 and arguably results from amendment to the Evidence Amendment Act 1981 (Tas) s 6—substituting s 85(11) in the principal Act. It should also deal with the situation where the accused raises his good character in an unsworn statement. Note: it is proposed to limit the scope of cross-examination of the accused see below, para 822.
[130] NSWLRC DP, Oaths and Affirmations, para 1.37.
[131] See Appendix C, para 3.
[132] See above, para 521-2.
596. Issues. The issues of policy and principle which must be considered in this area of the presentation of evidence are similar to those that have been considered elsewhere and in other areas the importance of a genuine and accurate fact-finding exercise; the importance of a fair trial; the need to control costs; the need for expedition; the need for simplicity; the need for a reasonable degree of predictability.
597. Balancing Advantages and Costs. A view has had to be formed about the appropriate balance to be struck in the proposals on individual topics that are considered in this chapter. The proposals, when considered as a whole, must be similarly assessed. It is probably true to say that the proposals will result in more evidence being led and more issues being raised with a consequent increase in time and cost. While there may be some saving in the cost of litigation resulting from:
• abolition of the concept of the hostile witness;
• clarification of the law in some areas with reduction in argument in those areas—for example leading questions, the rule in Browne v Dunn,[1] cross-examination of witness called in error, rebutting recent invention, etc;
• abolition of the rule in Walker v Walker[2] which forces a party to tender any document which it has called for from the other patty and inspected.
the proposals will generally result in a relaxation or removal of restrictions which may have the effect of increasing the time and cost of litigation. These include:
• enabling a party to require production of documents used to refresh a witness’ memory out of court;
• enabling parties to challenge witnesses who give evidence unfavourable to them;
• limiting the use of leading questions in cross-examination.
598. It is suggested, however, that the increase in time and cost is likely to be marginal only. Against this several matters must also be considered:
• Improvement in Fact-Finding. It is suggested that the court’s fact-finding task will be assisted and made more realistic by the proposals advanced. These include:
― requiring production on request of documents used out of court to refresh a witness’ memory;
― the control of leading questions in evidence in chief and also in cross-examination;
― enabling the party who calls a witness who gives unfavourable evidence to challenge that evidence by cross-examining that witness;
― encouraging witnesses to give their evidence freely and not through the filter of questioning;
― encouraging the use of interpreters.
• Fairness. The proposals will improve the fairness of the trial system in those areas referred to above and should do so also by:
― clarifying the rule in Browne v Dunn to ensure that the cross-examining party puts all relevant matters to witnesses being cross-examined and not just those parts of that witness’ evidence which it is proposed to challenge.
― abolishing the rule in Walker v Walker.
• Rendering the Law More Rational and Easier to Operate. It is suggested that proposals go some way to making the law more rational and easier to operate, especially in relation to unfavourable witnesses, the rule in Walker v Walker and the control of leading questions in evidence-in-chief and in cross-examination.
599. A Discretionary Approach? The need in the adversary system to have rules whose operation is reasonably predictable applies, but to a lesser extent than, for example, in relation to rules of admissibility of evidence. The latter have to be considered by parties in preparing for trial to a far greater extent than the rules considered in this chapter. The issue arises of whether we should return to the discretionary origins of the rules.
600. The rules which affect and control the presentation of the evidence of a witness are based upon the discretionary power possessed by courts to control their proceedings. Justice Barry, in discussing the issue of whether a judge can control the use of leading questions in cross-examination, said:
It is the duty of the Judge to regulate and control the proceeding so that the issues for adjudication may be investigated fully and fairly. The circumstance that the proceeding is one between adversaries each contending for the decision imposes limits ... upon the effectiveness with which the Judge can perform his duties. Within these limits, however, the existence of this duty clothes the Judge with all the discretionary powers necessary for the discharge of the duty, and he may therefore control and regulate the manner in which the evidence is presented or elicited.[3]
601. The topic is not something that appears to be discussed at length in the texts.[4] Best, however, in an early text on evidence[5] argued that:
The rules of evidence, especially of evidence tendered in causa, are, as has been shown rules of law, which a court or judge has no more right to disregard or suspend than any other parts of the common or statute law of the land.[6] It is otherwise, however, with the subject of the present chapter;[7] for, although the mode of receiving and extracting evidence is regulated by established rules, yet a discretionary power of relaxing them on proper occasions is vested in the tribunal.
Best then went on to consider the steps that occurred in the course of a trial, the power to order witnesses out of court, the question of who has the right to begin and rules relating to leading questions, discrediting the party’s own witness and discrediting the other party’s witness and some other matters.
602. An examination of the material on the present law reveals some rules which are in terms discretionary and others which appear to be non-discretionary:
• Discretionary. Express discretionary rules include:
― rules relating to leading questions;[8]
― the rule enabling a party to put a prior inconsistent statement to a witness called by that party notwithstanding that the witness is not declared hostile;[9]
― the judge’s power to determine whether a witness should have his evidence interpreted through an interpreter;
― the consequences of the requirement that the cross-examining patty put the relevant part of its case to the witness being cross-examined;[10]
― the power to disallow oppressive or unfair questions;[11]
― the rule that questions asked in re-examination must be restricted to matters arising out of the cross-examination of the witness unless the leave of the court is obtained.[12]
• Rules not Involving Express Discretion. These include:
― determining whether a witness is hostile;
― the rules controlling the refreshing of memory;
― cross-examination on prior written inconsistent statements;[13]
― rules relating to who may be cross-examined—the witness called by mistake and the attesting witness;
― cross-examination on statements made by persons other than the witness;[14]
― the rule that, where a party calls for and inspects a document in the possession of another party, it must tender that document if called upon to do so by that other party.[15]
Some of the rules in the second category have language or tests built into them which give the courts a hidden discretion—the test of who is a hostile witness and the requirement that the document used to refresh a witness’ memory be ‘contemporaneous’. It is suggested, however, that despite the examples of rules referred to above, the better view of the law in this area is that:
• The rules were developed by the courts in the exercise of what was originally accepted as a general discretionary power;
• The rules should be seen as at best rules of practice which courts should be free to depart from in appropriate cases.
It should be noted that the rules which have been categorised above as procedural rather than evidentiary rules are generally regarded as discretionary rules.[16] It is arguable that these rules also derive from the general power to control proceedings.
603. The view taken is that, while the rules should be flexible in this area, it would be counter-productive to turn the clock back and simply rely upon a general discretion[17] which identifies the broad policy issues which the court should take into account in controlling the presentation of evidence. If the existing rules are derived from a broad discretionary power, their present state is testimony to:
• the pressure to develop rules to guide the courts in the exercise of the discretionary power and to assist patties preparing for trial;
• the tendency to develop practices and for those practices to harden and acquire the status of rules which are applied inflexibly;[18]
• the fact that conflicting decisions will emerge;[19]
• the fact that the courts can develop rules which are unsatisfactory.[20]
It is inevitable that if reliance is placed on a general discretion in this area, history will repeat itself. Further, the view is taken that reform is needed in this area and it can only be achieved by formulating reasonably detailed rules in those areas which the existing law identifies as problem areas. If this is not done, the existing law will continue to be applied in practice no matter in what terms the old discretion is restated. Further, some rules affect trial preparation—for example, the rules relating to ‘hostile’ witnesses. In addition there is another aspect to the predictability of rules—their effect on the running of a trial. A return to judicial discretion would enable parties to argue interminably, when it was in their interests, about the conduct of the trial. Rules can minimise the scope of argument by spelling out what is to be done in situations that regularly arise. If a discretionary approach were taken predictability could develop but it would be a predictability based on a knowledge of the ‘form’ of the particular judge.
604. Reservation of Court’s Powers. It is not proposed that there be a general statement as to the power of the court to control proceedings, the presentation of evidence or the questioning of witnesses. Instead, the Bill is drafted on the assumption of the existence of the court’s duty and power to control the proceedings and, save as stated in the Bill, it does not define or limit those powers.
605. Definitions. The expressions ‘examination in chief’, ‘cross-examination’ and ‘re-examination’ are used in the proposals and it is desirable that they be defined. The term ‘cross-examination’ is sometimes used to describe the manner in which a witness is questioned and not the stage in proceedings where a witness is questioned. In the proposals the expression is used in the latter, procedural, sense. It has been necessary to refer both to ‘parties’ and ‘witnesses’ in the draft proposals. Where this has occurred in existing legislation, the view has been taken that the expression ‘witness’ should not be construed as including ‘party’.[21] Accordingly, ‘witness’ is defined to include party. A clause is included to remove doubts about whether a party may question a witness called by another party when that witness has not given evidence which affects the case of the other party.[22] A clause is included which sets out the order of questioning witnesses. It is consistent with existing practice and procedures. Unless the court orders otherwise, examination in chief must be completed before cross-examination can take place. At the conclusion of cross-examination by all parties, re-examination may occur. It is not necessary to build in any greater flexibility.
606. The Granting of Leave. The operation of a number of proposals is subject to the court granting leave.[23] In several cases the proposals identify one or more of the factors to be taken into account. There is also a general provision that identifies other factors. There is, however, no definitive statement of all the matters that should be considered. It was thought not to be necessary and not possible. Primarily, the court will have to act fairly as between the parties.
607. Psychological Research. Psychological research lends support to the claim advanced at times by witnesses that being tied to answering designated questions tends to result in the distortion of their testimony. Similarly, the claim that a free report would give a more accurate version of the events in dispute is supported. On the other hand, psychological research also confirms the experience of many legal practitioners: a free report by a witness is usually found to be sketchy or incomplete.
• Whipple.[24] He reported that ‘all authorities agree that the use of the interrogatory, whether of the complete or incomplete form, increases the range and decreases the accuracy of the report’. In the early years of the 20th century he and others undertook studies which found that testimony obtained by specific questioning generally contained between 25 per cent and 33 per cent more errors than testimony obtained by the free report method.
• Marston.[25] Marston devised an experiment in which witnesses would observe an incident which contained neither emotion nor drama. The planned occurrence was designed to involve as great a proportion as possible of details which were considered legally significant for some predetermined trial purpose. The subjects were asked to testify during a simulated trial conducted three months after the incident. The trial was of a young Texan man who was accused of stabbing an acquaintance. The subjects did not observe the stabbing but observed the following incident:
The incident used was that of an unknown youth rapping on the door of the lecture room, soon after the beginning of the lecture; entering on the lecturer’s request, and delivering an envelope to the lecturer. The latter removed a yellow paper from the envelope, pretended to read a message, and exchanged remarks with the stranger, who thereafter left the room. There were no deliberately false suggestions in the affair to lead witnesses astray, and the actions were of such a usual nature that no emotion beyond mild surprise or curiosity could be evoked from the witnesses.
There were a large number of details, however, of possible and connected legal significance ... In strict adherence to realism, the youth chosen was a Texan, very quick of hand and temper. He possessed a long, green-handled pocket-knife, the blade of which might well be used for stabbing purposes ... Under his left arm he carried three books, one red, one green, and one blue ... and the predetermined plot included the finding of these books at the scene of the crime. Besides the envelope handed the lecturer, the young man carried a second envelope in the same hand, which might have contained a taunting letter, just received from the murdered acquaintance. While the lecturer read his supposed message, the Texan faced the audience, drew and opened his knife, and scraped at his gloved thumb with it, in supposed embarrassment. The points of usual legal significance, therefore, would be all those details serving to identify the Texan, his books, his envelope, and his knife—a not unusual type of legal meaning for any testimony offered.[26]
After receiving and analysing the testimony of eighteen witnesses, Marston obtained significant results. The free report yielded data which was significantly more accurate than the information elicited either by direct examination or cross-examination. When expressed as a percentage, the degree of accuracy was 94 which contrasted with 83 for testimony obtained by direct examination and 75 for that obtained under cross-examination. On the other hand, there was a significant drawback associated with free report. This less structured method resulted in a considerable reduction in the amount of material offered by the witness, whereas the question and answer method obtained testimony which was significantly more detailed.
• Marshall, Marquis and Oskamp.[27] In their experiment, the accuracy and completeness of testimony about a short colour and sound film was assessed. The film was of a street scene some boys playing football, a couple leaving a supermarket with groceries, the man returned, the woman continued but was hit by a car, there was an argument and then a fight between the woman’s companion and the driver, one boy went to get the police ... The film lasted 1 min, 55 sec.
The testimony elicited by an interrogation modelled on counsels’ examination was compared with testimony obtained by way of free report. After analysis of the data, it was confirmed that ‘the very act of interrogation and the type of questions asked had, as we had expected, a marked positive effect on completeness’. The act of interrogation appeared to focus the attention of the witness, thereby stimulating his recall. The result was that the free reports were substantially less than half as detailed as the responses to interrogation.
The other interesting finding in this experiment related to whether the content of the free report was more or less accurate than information obtained by interrogation. It was learned that although the free report yielded testimony which was somewhat more accurate, the trade-off between accuracy and coverage was much less than previous research studies had led psychologists to predict. After questioning, coverage had increased much more than accuracy had decreased.
Obviously, both these techniques have positive and negative attributes and there would be considerable merit in the courts generally adopting a procedure which incorporated the use of each method to its greatest advantage. A free report by the witness would need to be followed by direct examination and cross examination if the evidence was to be complete. Such an approach would incorporate the most valuable aspect of the investigatory system—the free report—yet would avoid the problem of the judge being closely involved in the conduct of the litigation.
608. Criticisms of Free Report. Critics of the free report assert that this method leads to witnesses rather than lawyers, taking charge of the proceedings, resulting in a great deal of court time being wasted. Another criticism is that it could result in a whole range of irrelevant or inadmissible material being placed before the court, including hearsay evidence. It should be emphasized that one reason why the free report operates satisfactorily in investigatory systems is the difference in the rules of evidence between the two systems. Evidence rules are far less significant within an investigatory system and hearsay evidence is an acceptable form of testimony. A further difficulty which arises if a free report is used is that articulate people would be advantaged by the procedure of uttering an oral statement from the stand, whereas the inarticulate, nervous or unprepossessing would be disadvantaged. The advantage they would enjoy, however, might be no greater than that enjoyed by such people at present. The articulate person is likely to withstand questioning better than the less articulate.
609. Proposal. It is possible for the patties to present evidence in narrative form and for the judge to suggest it under existing law. What is proposed is the drafting of a proposal which will enable the court to encourage this practice in appropriate cases.[28] It is not suggested that the proposal should be put any higher. It must be acknowledged that in many cases the witness’ evidence will already have undergone an extensive filtering and distorting process:
witnesses generally have: spoken about the incident at large with other witnesses; regaled their friends and relations with the story especially where it relates to some incident eg, an offence or accident; given proofs (sometimes two or three) to the lawyers; undergone a pre-trial conference; and quite often given a separate proof to a loss assessor appointed to investigate the incident concerned. When one adds to this the ubiquitous traffic policeman’s report, and loss assessors and solicitors for the other side, it does not take much to see that a witness’s recollection, generally years old by the time the oath of accuracy is taken, is psychologically a very strange mixture.[29]
Thus the benefits of free narration may be marginal in a number of cases. It is suggested, nonetheless, that it should be encouraged—it avoids a further ‘filtering and distorting’ process.
610. Changes in Society. In a society where the overwhelming majority of people speak and understand the one language it may be reasonable to place the onus on the person wanting to use an interpreter to persuade the court that an interpreter is needed. Australia, however, is not such a society. The Australian Council on Population and Ethnic Affairs has stated:
Today 20 per cent of our population were born overseas, and over half of these people came from non-English-speaking countries. They and their offspring born in Australia presently number more than 2.5 million, in a total population of 15 million. More than one-third of overseas-born people regularly use a language other than English, and over 500 000 of them are estimated to suffer a severe disadvantage because of their lack of English.[30]
611. Proposal—Changing the Onus. There is evidence that, under existing law where a witness must seek the permission of the court to be allowed an interpreter, there is a reluctance to allow interpreters and that this adversely affects the fact-finding process and is unfair to the parties and witnesses. The proposal changes the onus—a person is entitled to an interpreter unless the court orders otherwise. At present, it is assumed a person either knows English or does not, so that a witness is not allowed an interpreter’s occasional assistance. The proposal will allow the use of interpreters for part of the evidence of the witness. Concern has been expressed to the Commission about parties and witnesses abusing the proposed right to an interpreter.[31] An example suggested is where a witness gives evidence in chief without an interpreter and then seeks to use an interpreter for cross-examination. In some cases this may just be a ploy. In other cases, it may be genuine. The possibility of abuse exists whatever approach is taken. The proposal gives the trial judge control over the situation and he can intervene at any time to stop the use of an interpreter.[32] This is the preferred approach. An alternative is included covering the situation of the witness seeking an interpreter for cross-examination—for which leave would be required. A danger with such an approach, however, is that there is a grave risk of an interpreter not being allowed when he should be.
612. Deaf and Mute Witnesses. A proposal is included to make it clear that the physical disabilities of a witness give rise only to practical problems of presentation and not to competence—the latter being the common law.[33]
613. Swearing of Interpreters. While interpreters in the relevant courts are required to be sworn, the law differs.[34] Proposals are included which mirror those advanced for witnesses.
614. Terminology. The topic is normally described in texts as ‘Refreshing’ memory. This terminology, however, is not accurate. The use of materials to assist a witness will either assist in recall and thus revive a memory or introduce new matter and thus create a new memory.
615. Reviving Memory in Court. Proposals are advanced to deal with reviving memory in court by the reading of documents. These proposals are developed from existing law but introduce a greater degree of flexibility. The proposals choose between the differences in the law[35] and address the criticisms made of the law.[36] Leave of the court is required. The specific matters to be considered by the court include whether the document was made or written or verified by the witness as accurate at a time when the facts were fresh in his memory. The concept ‘fresh in the memory’ is used rather than ‘contemporaneous’. Both have been used by the courts. The former, however, more accurately states the intention of the rule. Also ‘contemporaneous’ literally means occurring at the same time as the other event and would, therefore, if applied strictly prevent the use of material that should be used.[37]
616. Reviving Memory Out of Court. As to out of court revival of memory, the proposal gives the trial judge a discretion to require production of any document or thing which was used to revive memory—whether successfully so used or not.[38] If, without reasonable excuse, the document or thing is not produced; the judge may refuse to admit the evidence. This proposal combines aspects of the existing law—the discretion to require production where the memory was revived and the failure to produce the document going to the weight of the evidence; the automatic exclusion of the witness’ evidence where the memory was not revived and the document is not produced.[39] The view is taken that no distinction is warranted[40]—particularly in the light of psychological research on the effect on memory of introducing information.[41] No attempt has been made to specify matters to be considered in the exercise of the discretions:
... it is not possible to lay down a hard and fast rule that the document must always be produced. For example, the document may not be in the control of the witness (as it is when he uses it in the witness box). It may have been destroyed or become unavailable since it was used to refresh memory. Upon the assumption ... that a document used to refresh memory out of court may be any document (not being confined to a contemporaneous record made by the witness) it may contain matter which it would not be fair to let cross-examining counsel see. It may for instance be part of the brief of the opposing side.[42]
The proposal is subject to the qualification that documents subject to client’s legal privilege will be protected from disclosure to the extent that such proposals would prevent evidence being given of them. This is necessary as otherwise the privilege would have only limited operation—most witnesses, for example, will have read their statements given to the party’s lawyers before giving evidence.[43]
617. Abolition of the Rule. Under this rule, in a civil trial, a party calling for and inspecting a document in the possession of another party can be required to tender it by the other party. There is general agreement that the rule should be abolished and it is proposed to do so.[44]
618. Dangers of Leading Questions. The proposal reflects the existing bias against the use of leading questions in examination in chief and re-examination. Psychological research supports this bias.[45] The dangers of leading questions for the fact-finding task of the court and for the fair trial of proceedings warrant this approach.
619. Proposal. The definition of ‘leading question’ is similar to that used in most discussions of the subject. It is intended to cover questions such as:
• ‘Did you see another car coming very fast from the opposite direction?’ and
• ‘What did you do after Smith hit you?’ put to the plaintiff in an assault action before he has given evidence that he had been hit by Smith.
It is also intended to cover suggestive questions such as ‘how deep was the canal?’ instead of ‘what was the depth of the canal?’ or ‘about how fast was the other car going when it smashed into your car?’ instead of ‘what was the speed of the other car at the time of the collision?’ It is also intended to include multi-choice questions. The consequences that flow from asking a leading question when not permitted or unauthorised are not spelt out. As at present, a party may object and have the court order that the question not be put. If the question is answered, then the form of question will affect the weight of the answer.
620. The proposal permits parties to lead witnesses they have called in:
• introductory matters (such as name, address, qualifications and evidence setting the stage);
• matters not in dispute.
This changes the law but reflects existing practice. Other leading questions will also be allowed with the leave of the court. It is to be expected that parties will be able to use leading questions with such leave where:
• it is necessary to use leading questions to obtain the whole of the witness’ evidence—for example, where the witness has forgotten something, where it is convenient to direct the witness’ attention to some object or topic or the person who is to be identified, or where the witness, through language difficulties or for other reasons, is having difficulty giving evidence;
• to do so would expedite the trial without being unfair to any other party to the trial. This ground conveniently states the basic competing issues. It would permit questions which identify a person[46] or thing in court and questions put in a form which directs a witness’ attention to particular topics and matters. It would permit leading questions on matters which the court thought had been sufficiently proved.
In this, the proposal reflects the law but not present practice—which is believed to be unsound. In practice, it is usually assumed that there is no discretion to allow leading questions.[47]
621. Tendering Contradictory Evidence. It is difficult to argue that a party should not be able to lead evidence which contradicts that of a witness called by that party, including evidence of prior inconsistent statements. Parties do not ‘vouch’ for their witnesses.[48] Considerations of accurate fact-finding and fairness outweigh any marginal increase in costs involved in such an approach. Contradiction with prior inconsistent statements is permitted by legislation in the ACT with leave of the court.[49] It is proposed that this approach be taken.
622. Cross-questioning on Prior Statements. At present this may be done at common law as to the facts referred to in a prior inconsistent statement with leave of the court, but without specifically referring to what the document says. For similar reasons full cross-questioning on the prior statement should be permissible. It should be remembered that a party will not normally want to discredit a witness it has called. Full cross-questioning on a prior inconsistent statements is permitted in the ACT with the leave of the court.[50] A party should also be permitted to give evidence to rebut a false explanation of the prior inconsistent statement. The remaining major issue is whether and in what circumstances a party should be able to cross-examine a witness it has called on matters of character. and on the substance of his evidence and prove the making of prior inconsistent statements. It is only by having a witness declared hostile that this is possible at present.[51]
623. The Hostile Witness Rule. Legal writers have been very critical of the limits of the law. They have called it ‘antiquated’, ‘anachronistic’, ‘irrational’, ‘pernicious’, ‘an evidential sacred cow’, ‘a serious obstacle to the ascertainment of truth’, and a rule ‘more honoured in its breach than in its observance’. While not agreeing completely on the historical derivation of the impeachment restriction, they are in accord that the justifications offered in explanation of the rule are invalid.[52] The origin of the common law rule limiting a party in attacking the credibility of witnesses called by it was discussed by the Ontario Law Reform Commission:[53]
The origin of the common law rule concerning the right of a party to attack credibility of his own witness is obscure. As early as 1681, North, LCJ, in Colledge’s Case[54] is reported to have admonished a defendant in these terms, ‘whatsoever witnesses you call, you call them as witnesses to testify the truth for you ... let him answer you if he will; but you must not afterwards go to disprove him’. In Adams v Arnold,[55] Holt CJ, is reported to have said that he would not ‘suffer the plaintiff to discredit a witness of his own calling, he swearing against him’. By the early part of the nineteenth century, the rule appears to have been established beyond question.The reason for the rule is obscure. Wigmore[56] suggests that its origin lies in trial by compurgation; it. obviously would not be reasonable to permit an ‘oath-helper’ to be impeached. It has also been suggested that it is the natural outcome of the development from an inquisitorial to an adversary system, and of the adoption of a theory that witnesses ‘belong’ to the parties rather than to the court. There is reference in the cases to a patty ‘guaranteeing the credibility of his witness’.
However, this appears to mean simply that a party is free to choose whether to call a witness or not, but once having elected to call him, he is bound by what that witness says. A third suggested reason for the rule is the fear that, if a party were allowed to discredit his own witness, he might be able to force him to tell a story beneficial to that party in return for not attacking the witness’ credibility. Although Wigmore considers that there is some merit in this reason, the point has been made that the credibility of a witness may be attacked by the other party and that no witness is entirely protected from the possibility of having his credibility attacked.[57]
624. The following principal reasons have been advanced to support the traditional rule:
• Vouching for the Witness.[58] A reason advanced to support the law is that the party by calling the witness guarantees his trustworthiness.[59] This theory rests on the false assumption that a party exercises free choice in selecting his witnesses. In fact,
Except in a few instances such as character witnesses or expert witnesses, the patty has little or no choice. He calls only those who happen to have observed the particular facts in controversy.[60]
The United States Supreme Court has commented:
Whatever validity the ‘voucher’ rule may have once enjoyed, and apart from whatever usefulness it retains today in the civil trial process, it bears little present relationship to the realities of the criminal process. It might have been logical for the early common law to require a party to vouch for the credibility of witnesses he brought before the jury to affirm his veracity.
Having selected them especially for that purpose the party might reasonably be expected to stand firmly behind their testimony. But in modern criminal trials, defendants are rarely able to select their witnesses: they must take them where they find them.[61]
In the case in question, the accused, Chambers, had been convicted of murdering a policeman. Another man, McDonald, had made a sworn written confession to the crime out of court which he had later repudiated at a preliminary hearing. Chambers sought to cross-examine McDonald as a hostile witness at the trial and this application was refused. In commenting on the impact of the law, the Supreme Court said:
Moreover, as applied in this case, the ‘voucher’ rule’s impact was doubly harmful to Chambers’ efforts to develop his defence. Not only was he precluded from cross-examining McDonald, but, as the State conceded at oral argument, he was also restricted in the scope of his direct examination by the rule’s corollary requirement that the party calling the witness is bound by anything he might say.[62]
Wigmore has criticised the vouching theory on the ground that it undermines the law’s truth-seeking function:
It is the business of a court of justice, in mere self-respect, to seek all sources of correct information, whatever foolish guarantees a party may or may not have chosen to make.[63]
• The Risk of Blackmail.[64] A second rationalisation for the rule is that if impeachment were allowed, the witness could be blackmailed into testifying favourably though falsely for the party calling him. McCormick has argued, however, that the result of the rule has been to leave:
the party at the mercy of the witness and his adversaries. If the truth lies on the side of the calling party, but the witness’ character is bad, if he tells the truth he may be attacked by the adversary; if he tells a lie the adversary will not attack him, and the calling party, under the rule, cannot. Certainly, it seems that if the witness has been bribed to change his story, the calling party should be allowed to disclose this to the court.[65]
Dean Ladd has stated:
The chief fault of the control theory as applied to all types of impeachment lies in the fact that it assumes that all witnesses who give destructive testimony to the party who calls them are telling the truth ... There is no sound basis for assuming that destructive testimony given by a party’s own witness is the truth told by a recanting witness, nor is there a realistic foundation for the hypothesis that fear of impeachment dominates witnesses throughout their examination.[66]
This issue troubled the Criminal Law Revision Committee and the New South Wales Law Reform Commission.[67] The former proposed an embargo on general cross-examination on character. The latter proposed that such cross-examination be available only where the witness is declared hostile. It is suggested that the fears are greatly over-stated. If a witness is going to be blackmailed into committing perjury this is more likely to occur from physical threats, financial threats and promises of favours than the revelation of prior convictions. In any event, the point can be dealt with by placing some limits on the cross-examination of the witness. It is not necessary to retain the existing law.
• The Risk of the Jury Accepting the Impeaching Evidence as Substantive Proof. It is argued that there is a grave risk of the jury accepting the prior inconsistent statements as evidence of the facts stated. This risk exists at present where a party obtains leave to question a witness it has called about a prior inconsistent statement.[68] In addition, the same chance of misuse of prior statements exists where the witness is cross-examined about them by the opponent. In that situation, however, prior inconsistent statements are always admitted and the trier of fact is directed not to accept them as substantive evidence. Further:
the witness is present in court, sworn upon oath, and subjected to cross-examination of the adverse party, [which] substantially eliminates the opportunity for error or misjudgment in receiving the former statement.[69]
In any event there is a strong case for allowing prior inconsistent statements used to attack a witness credit to be admitted as evidence of the matters stated. Proposals enabling this to be done are advanced in this report.[70]
625. Hostile Witness—Proposal. It is proposed that the law relating to ‘hostile’ witness be abrogated. The criticisms of the law,[71] and the absence of any satisfactory rationale justifies this course. Further the need for accurate fact finding and considerations of fairness justify allowing a party to test by cross-examination that part of a witness’ testimony that is unfavourable to the case of the party whether the witness was called by the party or not. If the party does not test such evidence it is likely that no one will. The proposals may also encourage parties to call witnesses, often the most credible available.[72] The major danger with such an approach is that it may add to the time and cost of litigation. Several factors will minimise this danger:
• Decision to call Witness. Parties will generally know what evidence a witness wishes to give. If they can avoid it, they will not call a witness whose evidence is unfavourable on important points. While the proposal would make it less dangerous for a party to call such a witness, a party will still be reluctant to do so. It is unlikely that it will call such a witness unless the evidence he can give supporting the case is important and that which does not is unimportant, or can be successfully challenged.
• The Inconsistent Statement. The most likely situation will be one where the witness fails to swear up to his proof of evidence. The law presently permits cross-questioning in this situation with the leave of the court.
• Advantages of Discrepancies. Discrepancies between the evidence of witnesses called by a party can enhance the value of their evidence. This provides another reason for not cross-questioning the witness where the conflict is on non-essential issues.
• Tactical. A patty will be reluctant to attack the credibility of a witness where it wishes to rely on the rest of that witness’ evidence. Thus, it is likely that the witness will be challenged only where there is a significant conflict of evidence and any challenge would be restricted to the evidence given and would not extend to the general issue of the character or credibility of the witness. To so extend the attack would damage the credibility of the testimony as a whole.
Against the risk of adding to time and costs of litigation should be balanced the saving of time that may occur when a key witness favourable to each patty is called, because of the changes made by the proposals. A distinction needs to be drawn between the following procedures:
• Cross-questioning the witness on the unfavourable evidence;
• Cross-questioning the witness to attack the credibility of the witness;
• Leading evidence through other witnesses that relates only to the credibility of the witness.
It is suggested that the advantages of allowing the cross-questioning on the unfavourable evidence clearly prevail. Leave should be required—so that the cross-questioning can be controlled by the judge. It is provided, however, that it should only occur after all other parties have had an opportunity to question the witness. As to the remaining two categories, the advantages are more debateable and the risk of wasting time and cost greater. There will be occasions—for example where the witness fails to swear up to his proofs because of bias—where clearly such questioning and evidence should be allowed. On the other hand, there will be cases where the unfavourable evidence is not of major importance and the attack on credibility of little weight. The proposals advanced on character and conduct evidence will limit the cross-examination and the calling of other evidence. Nonetheless, control in this situation is desirable. It is proposed that leave be required.
626. An alternative view is that the proposals be limited to the situation where the witness’ conduct is unexpected. It is argued that where a party knows that a witness will not swear up to his proof of evidence, but calls such a witness intending to attack his evidence, it is a misuse of evidence—the witness is not being put forward as a witness of truth. Thus this argument is based on the ‘vouching of witnesses’ theory which has been discredited.[73] As to the prosecution, it is argued that it will receive a tactical advantage because, where a prior statement is used, it will go into evidence as an exhibit and go to the jury room. The prosecution, however, has suffered the tactical disadvantage of having to call a witness to prove its case and that witness has supported the defence. The argument also wrongly assumes that the defence will never have the need to call an unfavourable witness. A grave danger in imposing the requirement that the unfavourable evidence is unexpected is that, it would enable criminals to defeat prosecutions by suborning key witnesses. The prosecution will normally find out before the hearing, particularly where there is a committal, that a witness is unfavourable.[74]
627. Proposal—Other Points. The proposal also addresses the following particular issues.
• The ‘forgetful’ witness. It has been suggested to the Commission that the problem is the witness who is ‘unable to remember’, not the witness who changes his story. The proposal covers witnesses who happen to ‘forget’ some evidence. The witness with a genuine lack of memory can be questioned, with leave, under the proposals for leading questions in evidence in-chief. Whether evidence of bias, for example, is admissible will depend on the rules of admissibility.
• Unfavourable evidence emerging during cross-examination. A problem in drafting any proposal is that evidence unfavourable to the party that called the witness may emerge in the course of cross-examination because the cross-examiner has obtained honest and accurate evidence. It may, however, be dishonest evidence and, if new material, not likely, under existing law, to be tested by any party. It is proposed, therefore, that the party may, with leave, cross-question the witness on evidence given in cross-examination.
• Rebuttal of Explanations. The proposal does not expressly deal with the topic of evidence tendered to rebut explanations of inconsistent statements. The terminology used is thought to cover the issue.
• Time of Cross-questioning. The time when the cross-examination will occur will be under the control of the judge. Often it will be preferable to allow the cross-questioning of the witness to occur after the other parties have questioned the witness. During such questioning the unfavourable evidence may well be explained.
• Warning. The patty wishing to challenge the witness is obliged to seek leave at the earliest opportunity. This is in favour of the other parties—it will affect decisions about the content and extent of cross-examination.
628. Clarification of Existing Law. As at present, re-examination will be limited to matters arising in cross-examination.[75] At times it is argued that re-examination is restricted to clearing up ambiguities. This not so:
Re-examination is permissible in every case where the answers or account given in cross-examination would, if left unexplained, or uncompleted, not constitute the whole truth.[76]
629. Proposal. It is proposed to set out the latter view in the legislation. The party re-examining the witness is permitted, to a limited extent, to question the witness for the purpose of eliciting evidence which may not have been admissible in evidence in chief because it was, for example, relevant only to the credibility of the witness. This is permitted under existing law.[77] A witness is permitted to explain evidence given in cross-examination:
a wider view would result in demands for further cross-examination and re-examination and would tend to disturb the expeditious flow of the trial. It would also result in the extensive reception of evidence on re-examination which would have been inadmissible in chief.[78]
630. Witness called in Error. A party should be free to withdraw a witness if the party decides that it was mistaken in calling the witness, provided that no evidence-in-chief has been given. The adverse party can always call the witness. This approach meets the criticism of existing law—that the opposing party may cross-examine a witness who is called in error (in the sense that the party calling him wishes to withdraw him because his evidence would be inconvenient) even though no evidence-in-chief was given.[79]
631. Improper Questions. The proposal resolves the common law and legislation. The clause relates to the form of questions and the manner of the questioning. It is intended that the categories of questions include misleading or oppressive questions (eg which assume the existence of disputed facts that the witness has not admitted), repetitive questioning, and questions which are hectoring or abusive. The proposals provide for the judge to disallow the question, or to inform the witness that he need not answer but may if he wants to do so. In this way the judge can prevent a slanging match developing, or let the witness answer the question nonetheless.
632. Leading Questions. The proposed clause empowers the judge to disallow leading questions in cross-examination. This represents what is believed to be the correct view of the common law—a view that is not shared by all lawyers and judicial officers in practice. Where a witness appears in cross-examination to be favourably inclined to the cross-examining party, the dangers of distortion of evidence and considerations of fairness warrant a discretionary power to control the use of leading questions in the cross-examination of that witness by that party. The issue will commonly arise when evidence-in-chief favours the cross-examining party, or where the witness is sympathetic to the cause of the cross-examining party.[80] A typical situation described to the Commission is that where there are three parties, two of whom have a similar interest. Each could, in cross-examination, lead the witnesses of the other.
633. Rule in Browne v Dunn. It has been suggested to the Commission that the rule should not be dealt with on the grounds that a great deal of flexibility is needed and there are dangers in attempting a statutory statement of the rule. It has also been put to the Commission that the rule should be regarded as ‘a rule of fairness in conducting a case’ and as outside the scope of the laws of evidence.[81]
634. The first issue is probably best tested by preparing a draft provision. The second issue requires a decision on the definition of the laws of evidence. The rule in requiring the cross-examiner to question a witness on particular matters is one of those procedural rules that come into play when a witness steps into the box, and affect and control the presentation of his evidence. It is true that the rule is concerned with fairness in conducting a case, but it is also concerned with fairness to the witness.[82] Procedural fairness, in any event, is a matter of particular relevance to a number of rules of evidence. Where the rule differs from other rules generally regarded as within the laws of evidence is that it requires questions to be put (generally rules of evidence limit the questions) and is concerned not with the type of question or type of evidence but with the subject matter of the question.
635. The feasibility of dealing with the rule in legislation is best assessed by making the attempt.
• Scope of the Rule. The original narrow formulation—putting to a witness any matter on which it was proposed to contradict the witness—was justified on the grounds of procedural fairness and fairness to the witness.[83] The same considerations warrant the wider formulation—the cross-examiner must put to each of the opponent’s witnesses so much of his own case as concerns that witness or on which that witness could give evidence. Any rule, however, should require no more than that the opponent put the substance of the case to the witness. Otherwise, the requirement would be too onerous, time-consuming and costly.
• Consequences. As far as consequences are concerned, it is not possible or appropriate to address issues such as the comments that may be made on the inferences that may be drawn from a failure to comply with the rule. The law on this aspect is not affected. From an evidential point of view, the proposal should address the question of the consequences of failure to comply with the rule. One option is that the party who should have cross-examined a witness should be prevented from later leading evidence about the particular matters on which he should have cross-examined. This, however, would deprive the court and the patties of evidence. The issue is best dealt with by a judicial discretion to permit parties to recall the witness who should have been cross-examined.
636. Cross-examination on Prior Statements. The proposals distinguished between cross examination on prior statements of the witnesses and prior statements of other persons.
• Prior Statements of the Witness. The proposal reflects existing law but incorporates choices between differences of detail.[84] In doing so it addresses the criticisms that can be made of existing law. In particular the legislation contains the safeguards of requiring production of the statement to the patties on request and allowing the judge to make such use of it as he thinks fit. The legislation resolves uncertainties in the existing law by providing that the document may be admitted in evidence on the judge’s direction subject to the other provisions of the Act. An alternative would be to limit admission to the situation where a party requested it. This is not suggested, as it would be more limited than existing legislation. The proposal extends the existing legislation to prior oral statements. There is no justification for the distinction between the written and oral statements.
• Prior Statements of Other Persons. It would be most undesirable to permit cross-examination to be carried out using prior statements of persons other than the witness where those statements are not in evidence or will not be admitted in evidence. Where the statement is in evidence or will be received in evidence, there is no reason to prevent cross-examination on the contents of the statements. This distinction is made in the proposal. As to oral statements, no cross-examination will be permitted under the proposal where the statements are not or will not be admitted in evidence. Where the statement is not in evidence or cannot or will not be adduced in evidence, the proposal is for the existing law to continue—the witness will be shown the document, asked to read it and state whether he still adheres to his testimony.[85] Against such an approach, it has been argued that such cross-examination should not be allowed. It may be oppressive to the witness where the document is placed in the witness’ hands and the tribunal of fact may be encouraged to speculate about the content of the document. An alternative is included which addresses these dangers by forbidding cross-examination on the statements of others. The dangers must be acknowledged. However, there is power to control cross-examination and provided the rules are complied with, the document will not be identified and it will not be possible to infer what is in it. The advantage of this limited cross-examination is that it can, as it has in the past, assist in establishing the facts. The safeguard is provided, however, of empowering the judge to require production to him of any document so used and to the other parties. In particular, where the document used contains statements of persons other than the witness, the judge can use this power to ensure that no false impressions are given about the contents of the document. The judge may make such use of it as he thinks fit.[86]
Finally the proposal removes uncertainty in the law by providing that the cross-examiner is not obliged to tender the document used in cross-examination.[87]
637. Legislation or Rules of Court. The proposals are included in the legislation. An option, however, would be to treat them as rules of court and place them in a schedule to the legislation. They are of a procedural nature. Such a course would enable the courts themselves to develop the rules should the need arise.
[1] (1894) 6 R 67.
[2] [1937] HCA 44; (1937) 57 CLR 630.
[3] Mooney v James [1948] VicLawRp 57; [1949] VLR 22, 28. See also EM Morgan in American Law Institute, Model Code of Evidence, Philadelphia, 1942, 104; Law Reform Commission of Canada, Report on Evidence, Information Canada, Ottawa, 1975, 90; Mather v Morgan [1971] TASStRp 17; [1971] Tas SR 192. 207.
[4] cf, JB Weinstein & MA Berger, Weinstein’s Evidence, Matthew Bender, New York, 1982, vol 3, para 611 [01]; JH Buzzard, R May & MN Howard, Phipson on Evidence, 12th edn, Sweet & Maxwell, London, 1976, para 1543 for discussion of the use of interpreters.
[5] WM Best, A Treatise on the Principles of Evidence and Practice as to Proofs in Courts of Common Law, Sweet, London, 1849 (reprinted by Garland Publishing, New York & London) para 430ff.
[6] Best was here referring to rules relating to admissibility.
[7] Rules of forensic practice respecting evidence.
[8] See Appendix C, para 30-33.
[9] R v Thynne [1977] VicRp 10; [1977] VR 98 and see Appendix C, para 35, 36, 87.
[10] Browne v Dunn (1894) 6 R 67 and see Appendix C, para 50.
[11] Appendix C, para 41.
[12] Prince v Samo [1838] EngR 207; (1838) 7 Ad & El 627; 112 ER 606; Wojcic v Incorporated Nominal Defendant [1969] VicRp 40; [1969] VR 323; R v Lawless [1974] VicRp 49; [1974] VR 398: R v Clune (No 1) [1975] VicRp 72; [1975] VR 723.
[13] Originally strict rules were laid down at common law which were ameliorated somewhat by statute—see Appendix C, Para 36, 45, 87.
[14] See above, para 307.
[15] Walker v Walker [1937] HCA 44; (1937) 57 CLR 630.
[16] See Phipson on Evidence, para 1541ff.
[17] See US Federal Rules of Evidence (1981) Rule 611: Uniform Evidence Act of the Canadian Federal/Provincial Task Force on Uniform Rules of Evidence, Carswell Co, Toronto 1982; Law Reform Commission of Canada Evidence Code (1975) for guided discretions—to exercise reasonable control over the questioning of witnesses and the presentation of evidence and directing the judge to have regard to the need to present the evidence fully, to avoid undue consumption of time and to protect witnesses from undue harassment. The reform proposals that contain such a power, however, also contain specific provisions dealing with one or more the following matters—scope of cross-examination; leading questions; refreshing memory; questioning on prior statements; interpreters.
[18] For example, the practice relating to leading questions, cross-examination on prior statements, the hostile witness, refreshing memory and Walker v Walker [1937] HCA 44; (1937) 57 CLR 630. See above para 290-1, Appendix C, para 25-8, 31, 39, 43, 45.
[19] For example, leading questions in cross-examination, refreshing memory, the rules relating to hostile witnesses, the effect of a witness becoming unfit to testify, cross-examination on prior statements, the rule in Browne v Dunn (1894) 6 R 67.
[20] For example, the rules in Walker v Walker [1937] HCA 44; (1937) 57 CLR 630, and Queen’s case [1820] EngR 563; (1820) 2 Brod & B 284: the rules relating to the refreshing of memory, hostile witnesses, cross-examination on prior statements of the witness.
[21] See Evidence Ordinance 1971 (ACT) s 60(2); Vocisano v Vocisano (1974) 130 CLR 267, 271-2.
[22] See cl 24.
[23] eg cl 29 (reviving memory in court), cl 33, 38 (leading questions), cl 35 (limits on re-examination), and cl 42 (the rule in Browne v Dunn). See cl 142 for a list of factors generally applicable.
[24] GM Whipple, ‘The Observer as Reporter’ (1909) 6 Psychological Bulletin 153.
[25] WM Marston, ‘Studies in Testimony’ (1924) 15 Journal of Criminal Law and Criminology 5.
[26] id, 8-9.
[27] KH Marquis, J Marshall & S Oskamp, ‘Testimonial Validity as a Function of Question Form, Atmosphere and Item Difficulty’ (1972) 2 Journal of Applied Social Psychology 167.
[28] The judge would need to consider, amongst other things, whether the witness will be able to observe warnings about what evidence is admissible.
[29] Queensland Law Society, Submission (6 September 1982).
[30] Australian Council on Population and Ethnic Affairs, Discussion Paper, Multiculturalism for All Australians: Our Developing Nationhood, May 1982, obtained by the Commission as a Submission (2 December 1982). The range on the 1981 census figures is between 292, 207 (who did not speak English well or at all—an under-estimate) and (613 010 residents born overseas in non-English speaking countries: Australian Institute of Multicultural Affairs, Submission (10 December 1982). See also, para 282-5.
[31] Queensland Law Society, Submission (6 September 1982).
[32] Note: for proposals relating to the right to an interpreter in pre-trial investigation see the Australian Law Reform Commission, Report No 2, Criminal Investigation, AGPS, Canberra, 1975, para 262-4; the resultant draft bill, s 31, 71; and the Federal Government’s proposed Criminal Investigation Bill 1981 s 27.
[33] See Appendix C, para 5.
[34] A Sowden, Evidence Research Paper No 1, Comparison of Evidence Legislation Applying in Federal Courts & Courts of Territories, Australian Law Reform Commission, Sydney, 1981, para 2.4.
[35] Appendix C, para 25, 26.
[36] See above, para 286-89 and Appendix C, para 25-8. Note: the patties can require the production of the document as at present. Research has not revealed any authority to support the proposition that failure to produce the document used in court does not render it inadmissible. Presumably the issue would not arise. Note: the issue of tendering the document used is dealt with in the hearsay proposals (see below, para 682-700).
[37] ‘Freshness’ is thought to be a different concept to ‘vividness’. A memory of an event long ago may be ‘vivid’ but would not be ‘fresh’.
[38] Other protections have been considered but not recommended—applying the conditions precedent recommended for revival of memory in court (on the ground that it is impossible to enforce such controls); requiring pre-trial disclosure of materials used to revive memory (on the grounds of impracticality). Note the definition of document (cf R v Mills [1962] 1 WLR 1152). It has been suggested that the proposal will add substantially to the length of the trials. This would only be so, however, if documents were not called for now or were not produced. In any event, the view is taken that the benefit would be substantial. It has also been suggested that, in practice, the request would be made in cross-examination and that this could give rise to practical problems where a party refused to comply with any direction given—it would be necessary to direct the jury to ignore the evidence in chief or abort the trial. However, the request could be made before trial or before the evidence in chief. Further, problems will arise only where a patty refuses ‘without reasonable cause to comply with directions given’. The law at present has the same content and consequences where the document is memorised. It is thought there is no sound reason for distinguishing between that situation and one where the memory is revived.
[39] See Appendix C, para 27-8. But note authorities on the discretion in the court to direct production of statements of prosecution witnesses to the accused. See para 886.
[40] JH Chadbourn led) Wigmore on Evidence, Little, Brown & Co, Boston, 1970, vol 111, para 762; CT McCormick, Handbook of the Law of Evidence, Hornbrook Series, West Publishing, St Paul, 1954, 16.
[41] See references cited below on hearsay proposals and EF Loftus & JC Palmer, ‘Reconstitution of Automobile Destruction: An Example of the Interaction Between Language and Memory’ (1974) 13 Journal of Verbal Learning & Verbal Behaviour 585.
[42] Mather v Morgan [1971] TASStRp 17; [1971] Tas SR 192, 206 (Burbury CJ and Neasey J).
[43] As to client legal privilege—see below, para 877-89.
[44] See above, para 290-1 for criticisms.
[45] Whipple, 153; Marston, 5; Marquis, Marshall & Oskamp, 167; LW Stern, ‘Abstracts of Lectures on the Psychology of Testimony and on the Study of Individuality’ (1910) 21 American Journal of Psychology 270-82; EF Loftus, ‘Leading Questions and the Eye Witness’ (1975) 7 Cognitive Psychology 560; IML Hunter, Memory, Penguin Books, Harmondsworth, 1968, 171; J Marshall, Law and Psychology in Conflict, 2nd edn, Bobbs-Merrill, New York, 1980.
[46] The proper form of question—’Do you see the person referred to in court’ (Phipson on Evidence, para 1567)—is of a leading type: it indirectly suggests part of the answer.
[47] Consideration was given to placing limits on the power of judges to ask leading questions. It was concluded that it may be undesirable to spell out limits and that it would be preferable to leave the issue to be resolved as now on appeal – the issue being whether there was too much interference from the bench. Leading questions, however, should be avoided.
[48] See the text accompanying n 58-63 in para 624 below.
[49] Evidence Ordinance 1971 (ACT) s 60(2)(a).
[50] Evidence Ordinance 1971 (ACT) s 60(2)(b).
[51] Except in the ACT and Christmas and the Cocos (Keeling) Islands.
[52] Weinstein & Berger, para 607[01] citing inter alia Morgan and McCormick. Note the criticism by JH Chadbourn (ed) Wigmore on Evidence, Little, Brown & Co, Boston, 1970, vol 111A, para 898. See also the criticism of Sholl J in Bassett v Ferguson [1952] VicLawRp 28; [1952] VLR 481, 485. His Honour suggested a general discretion in the trial judge to control cross-examination.
[53] Report on the Law of Evidence, Govt Printer, Toronto, 1976, 201.
[54] (1681) 8 How St Tr 549, 636.
[55] (1700) 12 Mod 375; 88 ER 1389.
[56] Wigmore on Evidence, para 896.
[57] See SM Schatz, ‘Impeachment of One’s Own Witness: Present New York Law and Proposed Changes’ (1941-42) 27 Cornell LQ 377. For a recent examination of the law, its origins and rationale see AW Bryant, ‘The Common Law Rule Against Impeaching One’s Own Witness’ (1982) 32 Univ of Toronto LJ 412.
[58] Weinstein & Berger, para 607[01].
[59] ibid.
[60] ibid, citing CT McCormick on Evidence.
[61] Chambers v Mississippi [1973] USSC 32; 410 US 284, 296-8 (1973).
[62] ibid.
[63] Wigmore on Evidence, para 898.
[64] See New South Wales Law Reform Commission, Working Paper, The Course of The Trial, Gov Printer, Sydney, 1978, para 6.7 (NSWLRC WP).
[65] McCormick, 70-1.
[66] M Ladd, ‘Impeachment of One’s Own Witness—New Developments’ (1936) 4 U Chi L Rev 69, 85-6.
[67] Criminal Law Revision Committee, England & Wales, Eleventh Report, Evidence (General), HMSO, London, 1972, para 164; NSWLRC WP, para 6.6.
[68] See above, para 622 and Appendix C, para 36-8.
[69] Ladd, 87-8.
[70] See below, para 685.
[71] Above para 294-7 and para 623-4.
[72] cf Caltex Oil (Aust) Pty Ltd v The Dredge ‘Willemstad’ [1976] HCA 65; (1976) 136 CLR 529.
[73] Note: research has not revealed a reported case involving hostile witnesses where it has been suggested that it was relevant to consider whether the evidence was expected or unexpected.
[74] The prosecution has a discretion not to call witnesses if they are thought to be unreliable (eg, R v Lucas [1973] VicRp 68; [1973] VR 693). The prosecution, however, is entitled to call witnesses thought to be unreliable.
[75] JA Gobbo, D Byrne & JD Heydon, Cross on Evidence, 2nd Aust edn, Butterworths, Sydney, 1979, para 10.63; NSWLRC WP, para 13.1; Prince v Samo [1838] EngR 207; (1838) 7 Ad & El 627; 112 ER 606; Wojcic v Incorporated Nominal Defendant [1969] VicRp 40; [1969] VR 323; R v Lawless [1974] VicRp 49; [1974] VR 398; R v Clune (No 1) [1975] VicRp 72; [1975] VR 723.
[76] WAN Wells, An Introduction to the Law of Evidence, 3rd edn, Govt Printer, Adelaide, 1979, 16.122; Canadian Task Force Report, 320: Wigmore on Evidence, para 740.
[77] Wojcic v Incorporated Nominal Defendant, 11969] VR 323. See also R v Clune (No 1) [1975] VicRp 72; [1975] VR 723, 734; R v Nation [1954] SASR 189; R v St George [1841] EngR 120; (1840) 9 C & P 483, 173 ER 921. Also Dicas v Lord Brougham [1833] EngR 907; (1833) 6 C & P 249; 172 ER 1228; R v Chambers (1848) 3 Cox 92; NSWLRC WP, para 13.1.
[78] ibid.
[79] See above, para 298-9.
[80] cf NSWLRC WP, Draft Bill cl 130(8)(a) ‘the witness questioned is so favourable to the party cross-examining him that the question should not be asked’.
[81] Neasey J, Submission (25 August 1982).
[82] See Appendix C, para 50.
[83] Browne v Dunn (1894) 6 R 67.
[84] See Appendix C, para 45, 87, 88.
[85] See J Starke, ‘Cross-Examination based on Documents’, 19 ALJ 262.
[86] The judge may admit the document, subject to the sections dealing with admissibility though it is not tendered by a party.
[87] See Appendix C, para 49.
638. Relevance and Fact Finding. We are here concerned with the primary rule controlling the admissibility of evidence. Reference must be made to the competing purposes to be served by the rules of evidence. Consistently with the views expressed above,[1] the primary objective of establishing the facts dictates the approach that the fact-finder should take into account all evidence which has a rational bearing upon the questions at issue. Conversely, evidence which does not have a rational bearing on the questions at issue should not be admitted.
639. Other Considerations. Consideration of the objectives of accurate fact-finding, however, procedural fairness and the handling of litigation with expedition and minimum cost, require some limits to be placed on the primary proposition that all evidence having a rational bearing upon the questions at issue should be admitted. Under existing law this is achieved, in part, by the use of exclusionary rules—the rules against hearsay evidence, opinion evidence, character evidence and so on. Proposals are advanced on these topics in subsequent chapters. Control has also been achieved under existing law by the use of differing standards of relevance to exclude evidence of minimal probative value which, if admitted would add unduly to the time and cost of a trial, could confuse or mislead or might prejudice a party. The courts, however, have rarely expressly recognised that they use the requirement of relevance in this way.
640. Primary rule and Discretion. The primary rule is stated as at present—if irrelevant not admissible; if relevant, admissible (subject to the exclusionary rules). The proposal, however, addresses the criticisms made of the existing law. It articulates the mental processes inherent in existing law. This is done by two provisions—one defining relevance in terms of being capable of affecting the assessment of the probabilities and the other spelling out in a judicial discretion the policy considerations, presently concealed, which lie behind any decision on the relevance of evidence.[2]
641. Primary Rule—Definition of Relevant Evidence. The definition requires a minimal logical connection between the evidence and the ‘fact in issue’.[3] In terms of probability, relevant evidence need not render a ‘fact in issue’ probable, or ‘sufficiently probable’—it is enough if it only makes the fact in issue more probable or less probable than it would be without the evidence—ie it ‘affects the probability’. The definition requires the judge to ask ‘could’ the evidence, if accepted, affect the probabilities.[4] Thus, where a judge is in doubt whether a logical connection exists between a fact asserted by evidence and a ‘fact in issue’, he should hold that the evidence is relevant if satisfied that a reasonable jury could properly find such a logical connection. An indirect connection with a matter in issue is sufficient (eg evidence that an accused expressed an intention to kill the victim leads from the inference that he did in fact have such an intention to the inference that he is more likely than others who did not express such an intention to have killed the victim). The concept extends to evidence affecting the credibility of a witness (relevant because it affects the weight of testimony) and evidence which relates to the admissibility of other relevant evidence. To remove argument, specific mention is made of such evidence in the legislation. The definition embraces two concepts:
(a) the logical connection between evidence and facts; and
(b) the requirement that the matter on which the evidence ultimately bears is a matter in issue in the trial. Whether or not a matter is in issue is a question of law, determined by substantive law and pleadings. It is not necessary that it be disputed by the parties.
642. It has been suggested to the Commission that there are three distinct senses of relevance and that the definition should reflect them.[5] They are:
(a) relevance in the primary sense; ie a direct or indirect tendency to affirm (or negate) the existence of a fact in issue.
(b) relevance to credit; ie while the material may or may not go to the issues, it tends to fortify or to weaken the reliability of evidence admitted as relevant in the primary sense.
(c) relevance on a voir dire; ie relevant to a question of whether other material is admissible under headings (a) or (b) above. (eg, evidence as to the qualifications of an alleged expert; as to the voluntariness of a confession; as to the competence of a child to testify; as to the true character of a purported ‘dying declaration.’)
This approach has not been adopted. As acknowledged in the submission, evidence can come within all three categories. The logical connection can vary in nature and strength. To incorporate categories is likely to make people think in categories when the question is one of degree. To remove any argument or doubt however, about the relevance of evidence in categories (b) and (c), a sub-clause is included which should ensure that such will not be regarded as irrelevant evidence because it relates only to the credibility of a witness or the admissibility of other evidence.
643. Discretion—Policy Grounds for Exclusion. The proposal changes the form but not the substance of the present law. An express discretion is created under which the court must balance the advantages of admitting the evidence against the disadvantages of doing so. The proposal, consistently with the primary objective of admitting all relevant evidence, prevents exclusion of the evidence unless the disadvantages substantially outweigh the advantages.[6] Concern has been expressed to the Commission that any discretion must not be open-ended. The proposal, for example, should state a complete list of the matters to be considered. If it does not, argument may be encouraged in respect of every piece of important evidence. An exhaustive statement is also consistent with the primary policy objective of admitting all relevant evidence. An open-ended discretion may encourage the exclusion of probative evidence. Further, if it is not exhaustive parties would have difficulty preparing for trial.[7] For these reasons the proposal lists the matters to be considered in assessing the disadvantages of admitting evidence. The danger with such an approach, however, is that something which should be considered may be omitted. Comment is invited on whether other matters should be considered.
644. The risk of unfair prejudice is one of the potential disadvantages mentioned. By risk of unfair prejudice is meant the danger that the fact-finder may use the evidence to make a decision on an improper, perhaps emotional, basis, ie on a basis logically unconnected with the issues in the case. Thus evidence that appeals to the fact-finder’s sympathies, arouses a sense of horror, provokes an instinct to punish, or triggers other mainsprings of human action may cause the fact-finder to base his decision on something other than the established propositions in the case. Similarly, on hearing the evidence the fact-finder may be satisfied with a lower degree of probability than would otherwise be required.[8] Other potential disadvantages include—the risk of the court being misled (eg by incorrectly assessing the weight of the evidence) and the risk of confusion and of undue wastage of time. Under the proposal it will be relevant for the court to consider the importance of the evidence.[9] An alternative, however, would be to refer to the matter expressly. In balancing the factors, it will be possible for the court, as at present, to consider the extent to which the problems of admitting the evidence may be lessened by some other action—as for example, in a jury trial, by directions to the jury.
645. Consideration has been given to dealing with two other policy factors which could be considered in determining whether evidence should be excluded:
• Whether Admission of the Evidence Would Tend to Discourage Remedial Measures. It is commonly stated that evidence of remedial measures is not admissible as evidence of negligence. In particular it is agreed that such action does not constitute an implied admission of fault.[10] Courts have used the expressions ‘unjust’ and ‘barbarous’ to describe attempts to use such evidence for such purposes. The evidence, however, may be relevant to one or more of the constituent issues:—
(i) That a Reasonably Practicable System was Available. Evidence of remedial measures is at present admissible to assist in proving that an alternative system was reasonably practicable if that is in issue in the trial.[11]
(ii) That the Advantages of the Change Outweigh the Disadvantages. Evidence of remedial measures is at present admissible to assist in proving this conclusion—at least if the person against whom it is led leads no evidence and offers no argument to the contrary.[12]
In none of the English or Australian cases has there been found an argument that to admit such evidence would discourage people from taking remedial measures. This has been advanced as a justification for an exclusionary rule.[13] It is thought, however, that the fear is exaggerated. In many cases evidence is received of remedial measures. The prospect does not appear to have discouraged remedial action in those or other cases. What is critical is the potential danger of the evidence being used improperly—for example as admission of fault.[14]
The proposal will address this and other relevant issues through the relevance discretion. The court will have to consider the evidence of remedial measures and the inferences that arise from it—on its own or in conjunction with other evidence—and determine whether they bear on the issues in the trial. If any do relate to the issues then the evidence will be admitted unless the negative factors listed in the discretion outweigh the positive. It is to be expected that evidence would continue to be treated as it is now. It will be admissible where the practicality of an alternative is in issue. In exceptional cases it may be excluded under the proposed relevance discretion. It will also be admissible to assist in proving that the advantages of the change outweigh the disadvantages although the inference that the advantages outweigh the disadvantages is somewhat equivocal. In trial by jury it can be expected that the judge will direct the jury about the use that may be made of the evidence.[15] If a party seeks to have evidence of remedial measures admitted on the ground that it amounts to an admission of fault it will be unsuccessful either because it is not capable of giving rise to such an inference or because the inference is at best equivocal and is outweighed by the dangers in receiving it.
• Whether Admission of the Evidence Would Tend to Discourage Insurance Against Loss. The US Federal Rules render evidence of insurance inadmissible on the issue of negligence or otherwise ‘acting wrongfully’.[16] The danger with such evidence, however, lies not so much in the risk of discouraging people from insuring as in the risk of prejudice and confusion of issues. Under the proposals these issues are covered by the relevance discretion. As at present, such evidence will not normally be admitted.
646. Conditional Relevance. Morgan explained the concept of conditional relevance as follows:
Assume that fact A alone or fact B alone has no recognized logical relation to fact C, but the existence of both does have such a logical relation. For example, C is the fact that defendant made a specified false statement to plaintiff; A is the fact that defendant made the false statement; B, that it was communicated to plaintiff ... because the judge must rule on every objection to the admissibility of evidence, does it follow that in order to rule on the admissibility of evidence of A, if it is first offered, he must determine whether or not B exists, and, if evidence of B is first offered, he must determine whether or not A exists? If both could be and were offered as a unit, there could be no objection on the ground of irrelevancy. Limitations of time and space prevent the offering of both simultaneously. The rule that ‘without exception nothing which is not logically relevant is admissible’ does not contemplate that each item of evidence must of itself be unconditionally relevant when offered. The rule is as applicable to trial by the judge or court alone as to trial by a jury. Suppose that in a trial by the judge it was objected that evidence of A was inadmissible until the existence of B was proved and evidence of B was inadmissible until the existence of A was proved, and that there was no escape from the dilemma. The amused or indignant reaction of the judge hardly needs mention. The objection has no more merit in a jury case, merely because the tribunal consists of judge and jury. It is conceded that if the judge finds B, the existence of A is for the jury, and if he finds A, the existence of B is for the jury. That tribunal is quite as competent to decide one issue as the other. Can it be that many courts are solemnly saying that the proponent of the evidence can determine upon which of the issues his opponent can have a trial by jury’? If the trial were by the judge, when the objection was made to evidence of A, he would require merely that the proponent convince him that adequate admissible evidence of B would be later introduced. He might also rule that the evidence as to B should precede that as to A.The same procedure should be used in a jury trial. The evidence is of a kind that the jury is deemed capable of evaluating. Neither adversary is given the power to deprive the other of a trial by jury of a question of fact affecting the merits. The preliminary question for the judge when the relevancy of A depends upon the existence of B, and the existence of both A and B is in dispute, is whether the proponent will offer or has offered evidence which will justify a finding of both A and B. Thus when he offers evidence of A, the question for the judge is whether the proponent is adequately prepared to offer and will offer admissible evidence which will justify the jury in finding B. If the formula of Gorton v Hadsell is insisted upon—if the judge has to decide any preliminary question of fact necessary to enable him to determine the question of admissibility—the facts in the question should be the intention and ability of the proponent to offer the requisite evidence of B and not whether B exists.[17]
It is argued that the relevance of evidence—its ability to affect the probabilities—in the form of a document, object or reading of a technical instrument depends on establishing other facts authorship, identity, accuracy. The standard of proof that should be applied is—as suggested by Morgan—whether it would be open to the jury to find the fact proved. It is not appropriate generally to hold a voir dire and permit the opposing patty to adduce contradictory evidence. The issue is the relevance of the proferred evidence. If it is capable of affecting the probabilities, its effect on the probabilities is for the tribunal of fact.[18] For example:
Suppose the defendant is charged with receiving stolen property. For example, the prosecution contends that the defendant was in Philadelphia on a given day. This may only be relevant if the stolen goods were also in Philadelphia on the same day.[19]
Both matters are for the jury to decide. Similarly in this example:[20]
Consider a rape trial where the accused person disputes all relationship with the complainant. As evidence of intercourse and the complainant’s lack of consent the Crown offers a torn woman’s undergarment stained with blood and semen. Here, since the relevancy of the evidence is clear if the complainant was wearing the undergarment at the time of the alleged intercourse, relevancy depends on identifying this particular undergarment as the one she was actually wearing.
Other examples can be found where it is sought to prove that the accused did some earlier act which tends to establish a motive for the alleged crime—for example, acts of gambling to suggest a motive for embezzlement. Similar issues arise where a patty wishes to have a copy document or the transcript of a tape recording admitted. Assuming that the original document or tape is relevant, the relevance of the copy or transcripts will depend on a preliminary finding that the copy or transcript is what the party claims it to be. Similarly, the relevance of machine produced evidence depends upon it being that which the party tendering it claims it to be. This will depend in turn on the accuracy and reliability of the devices involved. The relevance of the machine produced evidence is conditional on accepting the reliability/accuracy of the devices. In each case the issues to be decided in determining the relevance of the evidence must be considered again and finally by the tribunal of fact. The appropriate test, is whether it would be reasonably open to a jury to find the fact established.[21] Similar issues arise in determining whether the accused made a confession or adopted statements made in his presence.[22] It is proposed to include a provision which specifically covers the issues. The legislation provides that evidence, the relevance of which depends upon the court making another finding, may be admitted subject to additional evidence being admitted to enable that other finding. Where such latter evidence has already been admitted the court will provisionally admit the former evidence if satisfied that the necessary finding based on the latter evidence is reasonably open.[23] Two points of detail should be mentioned:
• Conspirators. Concern has been expressed about the operation of the proposals, in trials for conspiracy in relation to statements allegedly made by conspirators. Evidence of statements made by an alleged conspirator A and tendered as evidence of acts done pursuant to the alleged conspiracy will continue to be admissible against A and against alleged conspirator B. The evidence is not tendered for a hearsay purpose and is not caught by the hearsay proposal. Such evidence raises an issue of conditional or provisional relevance[24]—the relevance of the act of A to the case against B will depend upon a finding that there was a common purpose. This issue is covered by the proposal on conditional relevance. In addition, however, the proposal provides that, as at present, the evidence of A’s acts may be considered with evidence of B’s acts and collateral circumstances to prove the common design.[25]
• Terminology. A final point to note is that the term ‘conditional relevance’ is not used in the legislation. The term ‘provisional’ relevance is used. It more closely represents the process. The term ‘conditional’ has connotations of conditions precedent that must be satisfied and if the term was used it might be thought necessary, for example, to hold a voir dire before admitting the evidence.
647. Appeals. Under existing law, where a party appeals against the exercise of a discretion by a trial judge his arguments are limited.[26] The appeal court will not form its own judgment on the way the power should have been exercised but will ask whether it is shown that some error had been made by the judge in the exercise of the discretion. If the judge acted upon a wrong principle, if he allowed extraneous or irrelevant matters to guide or affect him, if he mistook the facts, if he did not take into account some material consideration, then his determination will be reviewed. It may not appear how the primary judge has reached the result embodied in his order, but if upon the facts it is unreasonable or plainly wrong, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. Under present law, the appeal court will form its judgment on whether evidence is ‘relevant’.[27] Because the relevance proposal incorporates a discretion, however, appellate review of decisions on ‘relevance’ made under it may be more limited than it would be if the present unsatisfactory formulation of the law on relevance was continued. For the present, however, it is not proposed to recommend any change to the present law on appeals from discretionary decisions as it would be applied to the exercise of relevance discretion.
[1] See para 82.
[2] cl 44 (definition of relevant evidence—cl 43) and cl 114.
[3] ‘Fact in issue’ will include an issue that arises in a trial of whether an opinion was held and its correctness. A draft previously considered required that the evidence, to be relevant, should—affect ... the assessment of the probability of the truth of a statement as to the existence of a fact ... in issue.’ The italicised words were thought to give precision. They have been deleted as a result of comment that it was impractical. In the words of one consultant (Glass JA) -’It is philosophically justifiable, but forensically mischievous’. The expression ‘fact in issue’ should be interpreted as referring to the issues in the proceedings defined by substantive law and pleadings and thus would extend to facts to be proved in undefended or ex parte proceedings.
[4] See Appendix C, para 58.
[5] Queensland Law Society, Submission (21 July 1982).
[6] cf US Federal Rules, r 403:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
[7] See eg Sir Richard Blackburn, Submission (8 April 1982) and TW Smith QC, Submission (1 April 1983).
[8] cf. support for the power to exclude prejudicial evidence in civil trials—see P JJ, ‘Case Note—Evidence of Similar Facts’ (1954) 28 ALJ 161: ‘The law ... may ultimately prefer the issue to be decided on evidence from which unimportant and unfairly prejudicial elements have been purged rather than grant a party the opportunity of exploiting weaknesses inherent in the tribunal’.
[9] cl 114 ‘undue waste of time’.
[10] JA Gobbo, D Byrne, & JD Heydon, Cross on Evidence, 2nd Aust edn, Butterworths, Sydney, 1979 para 1.41; Hart v Lancashire and Yorkshire Rail Co (1869) 21 LTNS 261; Wagner v Midland Junction Abattoir Board [1963] WAR 84, 87; Davis v Langdon [1911] NSWStRp 22; (1911) 11 SR (NSW) 149; Anderson v Morris Wools Pty Ltd [1965] Qd R 65, 66.
[11] Nelson v John Lysaght (Aust) Ltd (1975) 132 CLR 201.
[12] ibid.
[13] See above Appendix C, para 57.
[14] See State Electricity Commission of Victoria v Gay [1950] VicLawRp 58; [1951] VLR 104, 116.
[15] eg State Electricity Commission of Victoria v Gay [1950] VicLawRp 58; [1951] VLR 104, 116.
[16] Rule 411.
[17] EM Morgan, Some Problems of Proof under the Anglo-American System of Litigation, Columbia University Press, New York, 1956. 88-91.
[18] See EW Cleary (ed) McCormick’s, Handbook of the Law of Evidence, 2nd edn, West Publishing Co, St Paul, 1972, para 190; JB Weinstein & MA Berger, Weinstein’s Evidence, Matthew Bender, New York, 1982, 104-21—’since the question of admissiblity turns on relative probative force, it is within the realm of the usual duties and experience of the jurors ...’
[19] SA Saltzburg & KR Redden, Federal Rules of Evidence Manual. 2nd edn, Michie Co, Charlottsville, 1977, 37.
[20] A Schiff, Evidence in the Litigation Process, Carswell Co, Toronto, 1978, 72.
[21] The issues are considered further in The Secondary Evidence of Documents and Authentication chapters below. See also Appendix C, para 61ff and 276ff respectively.
[22] The jury will ultimately decide whether, for example, the accused confessed and the question for the judge will be whether it was reasonably open to find that the accused made the statement (cf R v Thomas [1970] VicRp 87; [1970] VR 674).
[23] The US Federal Rules provide:
104. (b) RELEVANCY CONDITIONED ON FACT.—When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
[24] Tripodi v R [1961] HCA 22; (1961) 104 CLR 1, 7. If, however, the evidence is tendered to prove the truth of the facts asserted, there may also be a hearsay problem—see below, para 755 (text accompanying n 23-5).
[25] The King and the Attorney-General v Associated Northern Collieries [1911] HCA 73; (1911) 14 CLR 387, 401.
[26] See House v R (1936) 55 CLR 499, 504; Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513, 532-534; Rodgers v Rodgers (1964) 114 CLR 608, 619-20; Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54.
[27] See eg R v Stephenson [1976] VicRp 34; [1976] VR 376; Driscoll v R [1977] HCA 43; (1977) 137 CLR 517, 539.
648. Rationale. The requirement that the original writing be produced to prove its contents was originally justified on the basis that an inference of fraud is raised whenever evidence is introduced which the nature of the fact to be proved indicates is not the ‘best evidence’.[1] Prevention of fraud has continued to be seen as at least a partial justification for the rule. Cleary and Strong advance other justifications for a general requirement that the original be produced:[2]
• Accepting that written words have a peculiar significance, it follows that written words should be placed at the disposal of the judicial machinery as accurately as possible. Slight differences in written words or symbols can, on occasion, make vast differences to meaning. Not only may copies be subject to fabrication, they may also be subject to inadvertent mistake.
• Production of the original will also make the detection of fraud or other legal defects easier.
• By requiring the production of the original, the party against whom the evidence is tendered is protected in that he has the complete original to examine.
These considerations may be re-stated in the light of the objectives stated above.[3] The objective of accurate fact finding warrants rules which recognise the desirability of tendering the original document. Such an approach reduces the chances of error being made by the courts and reflects the tactical pressure on a party to produce the best evidence in its possession. It also helps to guard against fraud and deception.[4] It helps to protect the patty against whom the evidence is led. The approach may be more desirable in criminal than in civil trials but there does not appear to be a need to distinguish between the two types of trial in the formulation of the rules. The existing law, however, is complex, inflexible and can be costly. While production of the original can reduce argument and, therefore, time and costs, the inflexibility of the requirements of the rule can add significantly to the costs of litigation. These comments apply particularly to modern documents and copying technologies. The criticisms of the law[5] justify reforms.
649. Context. The proposals address the issue of the method by which the contents of writings and modern documents such as tapes and disks may be proved. This issue may arise in a trial in a variety of situations—for example, the authentication or identification of a writing. In such a situation a party may, as at present, produce to the court the original document and lead evidence to support the conclusion that the document is what it claims it to be—for example, by having a witness identify it and identify the handwriting. If the original is lost or destroyed but a copy is available, the party may seek to establish the authenticity and identity of the original by having a witness give evidence of its former existence, that the document produced is a copy and identify any handwriting in the document. The proposals thus aid the process by which writings and modern documents may be authenticated or identified and their conditional relevance thereby established in a trial.[6]
650. The Research Paper proposal was drafted in terms of what evidence may or may not be tendered. It prescribed modes of proof. It emerged in discussion of these proposals that while this is the correct analysis of the existing law and the most accurate approach to be taken, the law in practice is seen as a rule of admissibility. From a practical point of view that is the end result of the law—if a particular form of evidence cannot be tendered, it should not be admitted. It was also found that the admissibility approach was easier to understand. For these reasons the proposal does not follow the existing law, but is couched in terms of a rule of admissibility.
651. The Proposals. Any proposal must avoid adding to the requirements of the existing common law and statutory rules; there is no need to further complicate matters. The proposal commences by abolishing the ‘best evidence rule’ (for the relevant courts). This was thought to be the best approach. The proposal then provides for the control of the admissibility of oral and secondary documentary evidence. The proposal recognises the desirability of tendering the original[7] but treats it as an option and adds others modifying the common law:
• Duplicates. The accuracy of modern reproduction techniques and the convenience of tendering copies produced by them warrant general recognition. The approach of the US Federal Rules[8] should be adopted, so that a duplicate[9] would be admissible in evidence to prove the contents of the original document, whether the original document is in existence or not. The proposal is advanced in the context of certain safeguards set out below.[10] Concern has been expressed that documents not be excluded because they do not reproduce, for example, colours on the original where this is not material. A provision is included to define ‘copy’ to include such a document.
• Other Secondary Evidence. Otherwise, copies and oral evidence should be admissible, as at present, where the original cannot be produced. The proposal adopts grounds similar to those in the US Federal Rules, including the provision that prevents tendering of secondary evidence where the original was destroyed in bad faith. No notice or other demand is required to enable secondary evidence to be given of documents in possession of another party at the time of the trial, or at a time when the party knew, or ought to have known, that the contents of the document were likely to be relevant to the trial.[11] A hierarchy of secondary evidence is not introduced. It has not been the law and the Commission is not aware of any complaints about the lack of one. The common law rule allowing evidence of admissions about the contents of documents is also retained.
• Collateral Documents. Secondary evidence is also admissible where the contents of the document are not closely related to the issues to be tried.[12] Although this introduces a discretionary element, it introduces very little, if any, uncertainty. The issue to be resolved by the exercise of the discretion is whether the original should be required or not. If the original does not exist, the other provisions will operate to enable secondary evidence of the contents to be given.
• Reproductions other than Writings. To remove uncertainty about the scope of the common law, provision is included to permit the tendering of secondary evidence of the contents of modern information storing media. In particular it deals with
• audio tapes and words stored in codified form (this would include a word processor). It may be given by tendering a transcript;
• computers and like devices. It is not necessary to tender the original of the tape, etc., containing the computer instruction or data (this is likely to be meaningless to the court in any event) but the ‘printout’ may be tendered. The printout will have to be authenticated.[13]
• Documents in Other Countries. Legislation in a number of jurisdictions permits secondary evidence to be given, with limited proof, of documents in other countries. These have been criticised as lacking in adequate safeguards.[14] The proposal requires notice or, in the absence of notice, leave to be obtained before secondary evidence of such documents can be given. Time is needed to check the accuracy of copies, extracts and summaries.
652. These proposals should be appropriate for the tendering of secondary evidence of the contents of documents where the copying is not done on a large scale. In such a situation, persons involved in the copying of the documents are likely to be available to give evidence authenticating the copy. By themselves, however, the above proposals will often not he satisfactory for dealing with secondary evidence of commercial and government records, particularly where they are kept in photocopy form or on microfilm. It is necessary to advance special provisions for such records.
653. Existing Law. Serious criticisms can be made of the complexity, detail, and lack of uniformity of the legislation constituting past attempts to deal with reproductions of commercial and government records. Few enterprises observe its terms. The question remains, however, of what should be done. There is an anxiety among lawyers and law makers about new technologies and about their potential for fraud and deception. Further, there is the desire of equipment users and lawyers for certainty and predictability. These factors have, it is suggested, played a large part in causing such detailed and complex legislation to be enacted. The words of the Victorian Chief Justice’s Law Reform Committee are worth bearing in mind:
We recognise the possibility that our proposal may occasionally prove of assistance to a determined evil-doer bent on fraud or forgery. Cases may be supposed, and examples given, in which the fact of forgery can be detected only by examination of an original document. As against this, however, we believe that the good which the community will derive from our proposal will far outweigh any possible evil effects in an occasional isolated case. Indeed, we are by no means convinced that the present law provides much more in the way of safeguards than would be provided if our proposal is adopted. Moreover, if the original document has been lost or destroyed, inspection of it is no longer possible.[15]
It should also be borne in mind that records in microfilm are more secure in many ways than the original paper records—they can be stored in a safe; the image on the film is locked in position. Removal from the microfilm will be readily seen; alteration is extremely difficult. The speed of production, the minute size of the detail and the equipment and techniques required make it extremely difficult to tamper with microfilm; and corrections show up on the types of film used at present. For these reasons a more liberal approach can be taken.
654. Proposal for ‘Business Records’. It is proposed that the distinction continue to be drawn between copy documents that form part of the records of a business (which should include commercial organisations, government departments and instrumentalities) and those that do not. It is in the business records area that the need for substantial reform of the law is most clearly demonstrated. In the case of business records there is also the further security of the need for accurate and reliable business records, because the business itself relies upon the records. It is proposed therefore that copy documents made and kept by businesses as part of their records should be admissible where the original is in existence without evidence that they are a copy, on proof of the fact that they formed part of its records.[16] The proposal also permits evidence of the business record by tender of a copy.[17] This is supported by arguments of convenience. The proposals operate in the context of safeguards set out below.[18] As an example of the way the clause will operate in practice, consider its application in the case of COM (Computer output to microfilm). If the contents of a computer tape are in issue, the party may—tender the tape itself (this is not likely to be particularly useful); tender COM produced especially for the case;[19] if the COM forms part of the records of a business, it and a print from it may be tendered.[20] As another example, assume that we wish to prove the contents of a credit card transaction slip. The slip is held by the credit company. It has been microfilmed in the ordinary course of the credit company’s business and the microfilm is in constant use. When hard copy is wanted, a microfilm reader is used to produce a photocopy of the particular part of the microfilm reel which relates to the particular slip under consideration. The party wishing to prove the contents of the original slip by secondary evidence has three choices. He can—tender the microfilm itself; tender a hard copy if he can demonstrate that the hard copy was made in the ordinary course of the company’s business; or make a hard copy, lead evidence authenticating it and tender the ‘hard copy’.
655. It will not be necessary, for the admission of microfilm records, to give evidence about the functioning of the equipment, or the accuracy of the copies made and kept as ‘business’ records. It would not be necessary, therefore, to preserve such evidence. This does not mean that it would not be prudent to preserve it. The court will rely more confidently upon records that have been kept and checked systematically. This could be done in the form of records themselves admissible under the proposed legislation. Many businesses already keep registers—some computerised—for indexing microfilm for retrieval. It should not be difficult to record information relevant to the accuracy of the copying—eg, who did it, when it was done, the equipment used, whether it was operating correctly. Standards are available which spell out guidelines that should be followed.[21]
656. Proposal for Public Documents. The proposals for business records apply also to public documents. It would, however, be more onerous for some public documents than the present law. It would require someone to swear an affidavit authenticating the copy, or deposing to other facts that have to be proved under the proposal. But the trend in legislation specifically dealing with this category of record is to enable certified, sealed, or signed copies to be tendered in evidence and to relieve the party tendering the document of the necessity of proving the authenticity of the certificate, seal or signature or the authority of the person who purported to certify seal or sign the documents before admitting the documents. The proposal (together with authentication proposals) will have a similar effect[22] but applies to a wider group of documents than those dealt with in legislation. It also provides for evidence to be given by copies purporting to be printed by government printer or by authority of government.[23] In conjunction with the definitions[24] of ‘public documents’ and ‘business’ and the proposals outlined in the chapter ‘Authentication and Identification’, the proposal covers the ground presently covered by a multitude of varying provisions in Commonwealth, State and Territory legislation specifying the means that may be used to prove:
• proclamations, commissions, orders;
• by-laws and regulations;
• court orders, judgments and convictions;
• seals and signatures;
• gazettes and documents published by the government printer.
657. Power to Give Directions. The proposal relaxes the law and will enable parties to give secondary evidence of original writings and other materials where they are still in existence. There will be occasions where it will be desirable in the interests of accurate fact finding and fairness to have the original material produced and those connected with the original and secondary evidence called as witnesses. This should not often arise, as there is considerable tactical pressure on the parties to produce the original material which they have reason to believe is contested. For reasons of convenience and less meritorious reasons, however, the parties may tender secondary evidence and the court should have the power to give appropriate directions on terms. This is proposed and the powers may be exercised where a request is made on reasonable grounds by one party to another for the original or witnesses to be produced or called and the other party refuses. The court must consider the importance of the issue, whether doubt exists as to the authenticity or accuracy of the evidence on the original[25] and the nature of the proceeding—eg civil or criminal. If the directions are not complied with where the original is available the court is given the power to reject or exclude the secondary evidence.[26]
658. Discovery. The discovery proposals put forward in relation to hearsay evidence should also apply where use is made of the secondary evidence provisions.[27]
659. Proof by Affidavit. The legislation enables evidence relating to the conditions of admissibility to be given by affidavit. The affidavit is to be sworn by a person holding a responsible position relating to the making or keeping of the relevant document and may include hearsay.[28] The affidavit approach is found in some legislation[29] and it is thought that it will reduce costs and inconvenience, as it will avoid the need in most cases to call witnesses to give oral evidence.
660. Inferences. There is also a specific provision enabling the copy documents themselves to be used for the purpose of drawing inferences as to facts relevant to the admissibility of those documents.[30]
[1] EW Cleary & JW Strong, ‘The Best Evidence Rule: An Evaluation in Context’ (1966) 51 Iowa L Rev, 825, 826 citing Chief Baron Gilbert, ‘The Law of Evidence’ 1754 in JH Chadbourn (ed) Wigmore on Evidence, Little Brown & Co, Boston, 1972, para 1180.
[2] id, 828.
[3] Above para 82.
[4] Cleary & Strong, 827.
[5] Above para 319-28.
[6] The civil standard will generally apply but the proposals in many cases permit a document that purports to be a copy to be admitted.
[7] The drafting employed avoids the need for definitions of ‘original’, ‘duplicate’, ‘writings’, ‘recordings’ and ‘photographs’ (cf US Federal Rules r 1001).
[8] Rule 1001, 1003. See also New York State Law Revision Commission, A Code of Evidence for the State of New York, West Publishing Co, New York, 1982, cl 1001, 1003; Federal/Provincial Task Force of Canada, Report on Uniform Ruler of Evidence. Carswell Co Ltd, Toronto, Canada, 1982, 578-9.
[9] The proposal section would cover photocopies, micrographs, word processors. The ‘duplicate’ proposal does not in terms deal with carbon copies. This could only be done by adding the term ‘method’. As this covers human agency, there is no built in safeguard of reliability. Carbon copies, however, will be admissible under the other proposals.
[10] See para 657-8.
[11] The latter is similar to r 1004(3) US Federal Rules.
[12] The approach of r 1004(4) US Federal Rules.
[13] See para 988 and Appendix C, para 277f.
[14] See para 328.
[15] Victorian Chief Justice’s Law Reform Committee, Report on Microfilm Evidence, Govt Printer, Melbourne, 1962, 1.
[16] The Law Reform Commission of NSW has commented that the fact that the records were to be used by the business provided a strong incentive for accuracy—Report No 17, Evidence (Business Records), Government Printer, Sydney, 1978, para 48. Similar threshold requirement has been used in the Commonwealth, New South Wales and Tasmanian business records legislation and in Victoria and in Queensland in the provisions dealing the more limited category of books of account of a business (general financial records and records of goods produced and stock records).
[17] It would have to be authenticated.
[18] See para 657-8.
[19] cl 52. To facilitate reading the COM, prints could be relied upon.
[20] cl 53.
[21] For example, ‘Microfilm as Documentary Evidence’ (1979) 6 No 4 Consensus; I Borsa, J Basco & G Schelnitz, ‘Legal Validity of Microfilms: Some Recommendations’ (1976) Unesco Bulletin for Libraries, vol 30, No 3.
[22] The authentication provisions are contained elsewhere (cl 120, 122, 123, 124, 125). The provision would replace s 6 and s 11 of the Evidence Act 1905. It could replace sections such as S 259 of the Bankruptcy Act 1966. There are, no doubt, however, other sections in particular Commonwealth and Territory laws which provide methods for proving particular public documents. It is intended that such particular evidentiary provisions—the word ‘evidence’ appears more than 12,000 times in Commonwealth legislation -should be examined once a view has been formed as to what is desirable in provisions of general application.
[23] In most jurisdictions it is not necessary to authenticate such documents: Evidence Act 1905 (Cth) s 8-9; State & Territorial Laws & Records Recognition Act 1901 (Cth) s 12, 13; the Evidence Acts: (Qld) s 45. 46; (SA) s 37a, s 37b; (Tas) S 69, S 70-71; (Vic) s 62(1) s 47, 62(2); (WA) s 74-76; (NT) s 26C, 26D; and the Evidence Ordinance for Norfolk Island s 7. Proof of a public record may be given in this way in Western Australia (Evidence Act s 69A). Note: a Government Gazette would itself come within the definition of ‘public document’.
[24] cl 3(1) (‘public documents’ and ‘business’) and cl 3(2) (‘business’).
[25] cl 137.
[26] cf the safeguard provided in the US Federal Rules, r 1003, relating to duplicates: they are not admissible if a genuine question is raised as to the authenticity of the original or it would be unfair to admit the duplicate in lieu of the original. The proposal should be compared with the unguided discretion contained in the Evidence Act (Cth) s 7K(3) and (4) to order production of the original business record if secondary evidence of it was produced under 5 7K(1) and (2). It is thought that guidance should be given. See also s 7C(2) 7E(2) and 7K(3) and (4).
[27] See para 715.
[28] The latter aspects are developed from Evidence Act 1905 (Cth) s 7J(1).
[29] eg, Banker’s Books & Reproductions—Appendix C, para 65, 68.
[30] Such provisions are found in existing legislation, eg Evidence Act 1905 (Cth) s 7H.
661. Introduction. Reference has been made above to the development of the hearsay rule and other rules as the nature of the trial and the role of jurors, witnesses and lawyers developed.[1] During and after that development different justifications for the hearsay rule have been advanced or emphasised.
662. Not on Oath?[2] It has been argued that the out of court statement is not on oath and is, therefore, likely to be less reliable. The importance of the lack of oath has been questioned. The impact of the oath is probably less now than it was when the rule against hearsay developed. Nonetheless, as has been discussed earlier, psychological research suggests that swearing to tell the truth has an impact at least in making witnesses more careful.[3] Further, to emphasise the oath is to overlook another consideration—the maker of the unsworn statement is free of the pressures imposed on a witness. A witness is made well aware of the duty to tell the truth in an environment that is likely to reinforce the obligation. In addition there is the awareness for many witnesses that cross-questioning will occur and that lying can result in perjury prosecutions.[4]
663. Absence of Cross-Examination?[5] It has been argued that absence of cross-examination prevents an adequate testing of the evidence. This could lead to error by the tribunal.
The maker of a hearsay statement may have deliberately lied, or may have defective powers of observation, memory and expression. His weaknesses in these respects cannot be noticed during examination-in-chief and tested by cross-examination; his demeanour while testifying cannot be observed. ‘Whoever has attended to the examination, the cross-examination, and the re-examination of witnesses ... has observed what a very different shape their story appears to take in each of these stages.[6]
The importance for the fact-finding task of being able to cross-examine a witness is something that can be over-rated—particularly the value of observing the demeanour of witnesses. Further, suggesting facts to a witness in the course of cross-examination may distort the witness’ memory.[7] The fact remains, however, that it is not possible to test powers of perception, memory, recall and narration by questioning the maker of the statement. In addition to increasing the chances of error it may detract from a fair trial. It may properly cause a litigant to feel that justice has been denied.[8] Some defend the basic rule strenuously:
The values of hearsay exclusion are great and fundamental. Sir Walter Raleigh burned them deeply into the conscience of the common law when he found himself condemned for treason by a witness admittedly lacking any firsthand knowledge of the treasonable act. Denouncing this as hearsay, Raleigh turned upon his judges and said, ‘If this may be, you will have any man’s life in a week’. Raleigh was right, and they had first his liberty, then his estate, then his honour, then his son’s life, and finally his own life. He stands a martyr to the tights protected by the Hearsay rule. His trial showed us what common law justice could be like without the requirements of cross-examination and firsthand knowledge ... The abolition or emasculation of the Hearsay rule would make men’s lives, liberty, fortunes, and reputations depend upon the testimony of those who lack firsthand knowledge of the relevant facts they assert. Should men so affected be denied, without most pressing reason, the right to cross-examine those asserting such potentially damaging facts against them? Should men seeking to establish a right or make a recovery be turned back by such evidence?[9]
Much depends, however, on the importance of the evidence and whether it is disputed or disputable. It must be acknowledged that evidence in many of the cases referred to above would not have been materially affected by cross-examination.[10] This rationale does not justify exclusion of evidence where the maker of the statement is called to give evidence.
664. Not the Best Evidence.[11] Wigmore argued that the absence of the opportunity to cross-examine adequately was the fundamental justification of the rule.[12] It may be argued, however, that an equally important basis is that the evidence given is not based on personal knowledge of the facts asserted. It may therefore not be the best evidence and may be rendered unreliable. Booker and Morton argue persuasively that the personal knowledge requirement predated but led to and formed part of the hearsay rule as it originally developed.[13] By insisting on the ‘best evidence’, it is argued, we insure against errors being made. Psychological research strongly supports the view that hearsay evidence is not the ‘best’ evidence. Hearsay involves the application of perception, memory, recall and narration skills of at least two people. It involves a compounding of the weaknesses in those skills. Many experiments have been done to test the ability of people accurately to perceive, remember, recall and narrate events they have observed. For example:
• Munsterberg. Probably the most famous early experiments were those conducted by Munsterberg. This type of experiment has been repeated many times. Munsterberg’s own description of one such experiment was as follows:[14]
There was, for instance, two years ago in Gottingen a meeting of a scientific association, made up of jurists, psychologists, and physicians—all, therefore, men well trained in careful observation. Somewhere in the same street there was that evening a public festivity of the carnival. Suddenly, in the midst of the scholarly meeting, the doors open, a clown in highly coloured costume rushes in mad excitement, and a Negro with a revolver in hand follows him. In the middle of the hall first the one, then the other, shouts wild phrases; then the one falls to the ground, the other jumps on him; then a shot, and suddenly both are out of the room. The whole affair took less than twenty seconds. All were completely taken by surprise, and no one, with the exception of the President, had the slightest idea that every word and reaction had been rehearsed beforehand, or that photographs had been taken of the scene. It seemed most natural that the President should beg the members to write down individually an exact report, inasmuch as he felt sure that the matter would come before the courts. Of the forty reports handed in, there was only one whose omissions were calculated as amounting to less than 20 per cent of the characteristic acts; fourteen had 20 to 40 per cent of the facts omitted; twelve omitted 40 to 50 percent, and thirteen more than 50 percent. But besides the omissions there were only six among the forty which did not contain positively wrong statements; in twenty-four papers up to 10 per cent of the statements were free inventions, and in ten answers—that is, in one fourth of the papers more than 10 percent of the statements were absolutely false, in spite of the fact that they all came from scientifically trained observers ...[15]
Two things of significance occurred—a large amount of relevant information was omitted and a large amount of incorrect information was included.
• Blackburn and Lindgren. Two Cambridge psychologists, J Blackburn and EG Lindgren made a recording of a discussion which followed a meeting of the Cambridge Psychological Society.[16] Two weeks after the discussion, they wrote to all those who had attended and asked them to write down all they could recall about the discussion. The reports were checked against the recorded version and it was found that the average number of specific points recalled by any individual was 8.4 per cent of the total recorded and that of the points recalled, 42 per cent were substantially incorrect. A large variety of errors and confusions appeared. Happenings were reported which had never taken place at all or which had taken place on some other occasion and were wrongly recalled as having occurred at this particular discussion.
665. Experiments have identified a number of factors that contribute to the unreliability of the evidence of eyewitness. Reference has been made to the factors affecting the accuracy of the original observation and its impression on the memory.[17] Other factors also operate.
• Loss of Memory. One of the first attempts to investigate scientifically the rate at which we forget information was conducted by Hermann Ebbinghaus in 1885.[18] In his experiments he gave himself material to remember which had had removed from it all meaning. To do this he invented syllables formed by placing a vowel between consonants. He memorised lists of these nonsense syllables, testing himself until he had remembered every item. He would then put them aside for specified periods of time and then went through a process of re-learning them. The results illustrated that forgetting was rapid at first and then became progressively slower as the period between the original learning and the re-learning increased.
One hour after learning, more than half of the original work had to be done again before the material could be brought back to its former level of mastery. Nine hours after learning, about two thirds of the original work had to be done again. After six days, three quarters of the original work had to be put in; and after a month some four fifths.[19]
Plotting the results on a graph produces a smooth curve which falls rapidly at first and then more slowly. Since the Ebbinghaus experiments, many have attempted to measure the rate of forgetting using a variety of material,—passages of prose, lists of factual material, geometrical figures, pictures, films.[20] It has also been tested for identification of people by eyewitnesses.[21] Hunter states that they have almost always found that forgetting follows this progressively diminishing trend.[22] This finding has been so general that the curve is sometimes called ‘the curve of forgetting’.[23] The rate of forgetting however, will vary. Hunter[24] gives the example of trying to remember factual prose passages. Literal remembering falls off much more rapidly than content remembering. Materials learned with intensity will be retained for a short while, but then the curve of forgetting becomes almost a straight line.[25]
• Changes in Memory. Not everything that happens in an event is perceived, and very little of that which is perceived finds its way into our memory on any long term basis. Thus, when we attempt to recall an event or a story, we find gaps and uncertainties. We use inferences and probable facts to fill these gaps. We guess and that guess becomes the memory and is ‘frozen’ in the memory.[26] The filling out occurs unconsciously to round out our fairly incomplete knowledge. Loftus comments:
Whenever a memory for an event is called to consciousness, the potential appears to be there for substitution or alteration to occur. Memory seems not to be permanent. Rather, we have a mechanism for updating memory that sometimes leaves the original memory intact but sometimes does not.[27]
Our own experience can testify to this process of selection, interpretation, and reconstruction. In attempting to remember events of the past we search about, recalling odd bits and pieces of information. We think things must have happened, or we think we can remember vaguely something happening. In the process of thinking about these our recollection appears to become clearer, so that we become convinced that they did in fact happen.[28] We integrate information from different sources to the extent that we are unable to tell from which source the memory comes. ‘All we have is one memory’.[29]
According to the cliche, memory fades. In fact, however, it grows. What may fade is the initial perception, the actual experience of the events. But every time we recall an event we must reconstruct the memory, and so each time it is changed—coloured by succeeding events, increased understanding, a new context, suggestion by others, other people’s recollections.
All the things that alter memory fuse with experience, and we become sure that we saw or said or did what we remember. And even that initial perception of events is not ‘pure’.[30]
666. Many factors contribute to distortion of recollection.[31] Some come from outside the witness. Of particular relevance to hearsay evidence:
• Asking Questions. It has been found that more errors occur when witnesses are asked to answer questions than when they simply narrate what they observed.[32] Having been asked questions and answered them, the answers tend to be recalled later as genuine recollections.[33]
• Power of Suggestion. Much research has been done on the effect of the giving of incorrect information upon people’s recollection of an event.[34] Suggestions which influence recall can be made simply and often unconsciously. For example:
(a) Choice of Word. Persons asked how ‘frequently’ they had headaches reported a mean of 2.2 headaches a week while those questioned with the word ‘occasionally’ reported only .7. A group asked if they had tried ‘1, 2, or 3’ headache products produced an average of 3.3 products. A group asked if they had tried ‘5 or 10 products’ produced an average of 5.2 products.
(b) Active and Passive Questions. Witnesses to a demonstration which disrupted a class were given a questionnaire[35] containing passively phrased questions and other witnesses were given a questionnaire which contained ‘active’ questions—eg ‘did you notice the militants threatening any of the students?’ and ‘did the professor shout something at the activist’. When questioned a week later, it was found that those who had previously been given the ‘active’ questions reported that the incident they had seen was a ‘noisier and more violent’ one, ‘that the perpetrators of the incident were more belligerent, and that the recipients were more antagonistic’.[36] In another experiment subjects were shown a film of a traffic accident. The subjects were then asked differently worded questions eg some were asked ‘about how fast the car was going when they smashed into each other?’ Others were asked ‘about how fast were the cars going when they hit each other?’ The former question produced a much higher estimate of speed from the subjects. A week later the subjects were asked whether they recalled seeing any broken glass. There was in fact no broken glass in the accident. Those who had been asked a question with the word ‘smashed’ in it were more likely to say that glass had been broken.[37]
(c) Newspapers. Students who witnessed an experiment and then read an inaccurate newspaper account of the experiment, gave an inaccurate account approximately one week after the experiment as a result of. remembering erroneous information in the newspaper.[38]
(d) Questions with False Facts.[39] A number[40] of experiments have been done by having witnesses observe film or a series of pictures of an event such as a motor car accident and then introduce subsequently, usually in a series of questions, some false information about the existence of what was in fact a non existent object—a giveway sign instead of a stop sign or the presence of a vehicle which was not in fact present. Repeatedly it is found that the non-existent object becomes incorporated into the memory of a significant number of witnesses. The leading question will distort the interviewee’s memory.[41]
• Stress. Experiments have been carried out to establish the effect of stress and anxiety upon people’s ability to perform tasks. To perform the tasks they must recall information. As might be expected, under higher stress, performance is adversely affected. One explanation is that stress leads to a narrowing of focus, so that many features get less attention then they otherwise would.[42] Loftus and Seigel also tested the memory abilities of people suffering from high levels of general anxiety. Their studies have suggested high anxiety does hinder memory.[43]
• Repetition. When testimony is repeated the expressions used come to be more clearly remembered than the event and language because of its ambiguity can create new images.[44]
667. How do these experiments accord with our experience? For the most part, our memories serve us well. Our memories are an essential part of the process by which we develop and by which we learn about our community, its people, its geography and learn to develop skills of infinite variety.[45] Precise memory however, is rarely demanded of us:
When a friend describes a vacation we don’t ask, ‘are you sure your hotel room had two chairs, not three?’ Or after a movie, ‘Are you sure Warren Beatty’s hair was wavy, or was it curly?’ If errors are made, they go unnoticed and uncorrected, and the belief in an accurate memory is reaffirmed by the default.[46]
Precise memory is, however, demanded in a trial:
But precise memory suddenly becomes crucial in the event of a crime or an accident. Small details assume enormous importance. Did the assailant have a moustache, or was he clean shaven? Was the light red, or was it green? Did the car cross the centre line, or did it stay on its own side? The case often rests on such fine details and these details are hard to obtain.[47]
The relevance of the above experiments to hearsay evidence is that the accuracy of hearsay evidence will usually depend upon the same capacities—perception, memory and narration. The weaknesses of eyewitness testimony are compounded:
To allow hearsay evidence generally would be to run twice the normal risk of defect in the testimonial process. Not only would there be the primary risk of defective perception, recollection, and narration as to the fact in question on the part of the one who uttered the original statement, but there would be a similar secondary risk in the perception, recollection, and narration of the person who heard or saw the fact of the utterance of the extra-judicial statement and who is offered to reproduce it in court. While such a person’s narration would be subject to the conditioning devices, yet these merely aid, and do not guarantee the trustworthiness of his testimony.[48]
While one might question the strict accuracy of the suggested factor of ‘twice’, there must be a significant compounding of the potential for error. It cannot be a matter of degree—each new individual in the chain introduces a new set of variables.[49] The issue has not been the subject of extensive research of direct relevance. Some Bartlett experiments, however, are relevant.[50] One of Bartlett’s experiments involved a story entitled ‘The War of he Ghosts’, a North American folk tale. It was read to one student. That student then attempted to repeat it to a second student, that second to a third, the third to a fourth. In all there were seven attempts at retelling the story. The story presented difficulties to British people because of the strange conventions and beliefs which it reflected and its apparently disconnected narrative and the decorative detail it contained. The repetitions substantially reduced the story. This shortening was progressive and decreased with the repetitions. In addition, the story became more coherent with repetition. Of interest from the point of view of the hearsay rule are the omissions and changes that occurred in the first and second reproduction. Set out below is an example:[51]
Original Story. The title of this story is ‘The War of the Ghosts’. One night two young men from Egulac went down to the river to hunt seals, and while they were there it became foggy and calm. Then they heard war-cries, and they thought: ‘Maybe this is a war-party’. They escaped to the shore, and hid behind a log. Now canoes came up, and they heard the noise of paddles, and saw one canoe coming up to them. There were five men in the canoe, and they said: ‘What do you think?’ We wish to take you along. We are going up the river to make war on the people.’ One of the young men said: ‘I have no arrows.’ ‘Arrows are in the canoe’, they said. ‘I will not go along. I might be killed. My relatives do not know where I have gone. But you’, he said, turning to the other, ‘may go with them.’ So one of the young men went, but the other returned home. And the warriors went on up the river to a town on the other side of Kalama. The people came down to the water, and they began to fight, and many were killed. But presently the young man heard one of the warriors say: ‘Quick, let us go home: that Indian has been hit.’ Now he thought: ‘Oh, they are ghosts.’ He did not feel sick, but they said he had been shot. So the canoes went back to Egulac, and the young man went ashore to his house, and made a fire. And he told everybody and said: ‘Behold I accompanied the ghosts, and we went to fight. Many of our fellows were killed and many of those who attacked us were killed. They said I was hit, and I did not feel sick.’ He told it all, and then he became quiet. When the sun rose he fell down. Something black came out of his mouth. His face became contorted. The people jumped up and cried. He was dead.
First Reproduction: The title of this story is ‘The War of the Ghosts’. Two young men went out to hunt seals. It was foggy. They heard war-cries and hid behind a log. Then they heard the splash of paddles and a canoe came up in which there were five young men. ‘Come with us’ they said ‘we are going to make war on the people up the river.’ One of the young men went with them (long pause) and took part in the battle which followed. He saw one of the Indians being killed and someone shouted: ‘He is killed, let us go home now.’ He felt sick and someone told him that he had been hit. They left and returned to the village. (long pause.) He did not feel well the next morning. Something black came out of his mouth and he was dead.
Second Reproduction. The title of the story is ‘The War of the Ghosts’. The interest of the story takes place in a foggy situation with a group of people in a small boat. The idea of the story is a seal hunt. There are five men who prepare to go upon this seal hunt and they select one of their number to accompany them to a battle. This battle occurs between some Indians and, in the course of the battle, evidently someone is killed and evidently it is this one individual who has been selected to accompany this group. Then someone shouts: ‘Let’s go home. He’s been hit—or something’s been done to him.’ So they find themselves back in the original situation back where they were. And this selected individual finds himself rather ill. And in the course of a day or so, this illness seems to become worse. And eventually something black comes out of his mouth and he’s dead.
668. A difficulty in assessing the example is that the reader suffers from the same human frailties as the participants in the experiment and while, on an initial reading, there may appear to be no great difference between the two accounts, in fact the differences are considerable. Analysing the two reproductions only three points are common to both of them. They are—the title of the story; the conditions were foggy; that at the end something black came out of the mouth of the man and he died. Otherwise the story has become very different—the original drama of the meeting is forgotten. Instead in the second reproduction, five men (not two) set off together both to hunt seals and to go to war. There are five men in the story not seven. The canoe had become a boat. The description of the people to be attacked is forgotten. Only one person is killed instead of two. The fact that it was an Indian who was killed is forgotten. The individual who dies doesn’t die the next morning. He dies several days later. The location of the death is no longer stated.
669. Apart from deficiencies in perception and memory at each stage in the progression from first to more remote hearsay, there is the additional factor of the ability of the people involved to communicate. Marshall argues that the translation of images into words leads to two kinds of distortion—a compulsion to fill in the gaps in a narrative, and the lack of information or any indication as to how clear to the witness the image of the incident is that he is reporting. Words may fail to describe accurately, and they may not distinguish between what is an inference and what is not—the witness saying ‘it was raining and I wore my rubbers’, does he recall one or both or infer one or both? It is almost impossible to give accurate and complete description of an event with all its overtones and colours. Further, words are ambiguous instruments. Accent and pronunciation can also result in misperception of what the person is saying.[52]
670. There is much support for the view that hearsay is unreliable and is not the ‘best evidence’. There is much to be said for the view that the best evidence should be required to minimise error. There are at least two difficulties with these propositions. Firstly, what is the ‘best evidence’ can depend on what evidence is available—if the maker of the statement is dead, the hearsay evidence may be the best evidence. To exclude it may cause error. Secondly, the above research demonstrates that hearsay evidence can be of better quality than sworn evidence in court—for example, the record made shortly after the event compared with the sworn evidence years after the event.[53]
671. Dangers of Repetition?[54] It is argued that hearsay evidence carries with it dangers of inaccuracy through repetition—‘Send reinforcements, we are going to advance’ becomes ‘send three and four pence we are going to a dance.’ The Bartlett experiments confirm the problem.[55] While there is much force in the proposition that hearsay evidence is likely to be unreliable, the proposition must be qualified in respect of written hearsay[56]—particularly, that contemporaneous with the events recorded. Further, if the maker is called to give evidence he can be cross-examined about it. Finally distinctions can be drawn between firsthand hearsay and more remote hearsay.
672. Risk of Fabrication?[57] The argument is put that the rule minimises the risk of evidence being fabricated. Relaxing the hearsay rule may make it less dangerous to commit perjury—for example, a note is prepared by the witness allegedly setting out what he saw and at the trial he claims loss of memory but that he had at the time recorded accurately what he saw. The risk of fabrication would be greatest amongst people who knew the laws of evidence. Requiring direct evidence, however, will not necessarily stop perjury. It may make it more difficult—the witness must say what he saw under oath, subject to cross-examination and subject to the risk of prosecution for perjury. But it should be noted that the risk of fabrication exists at present under the rules enabling refreshing of memory from documents. Only contemporaneous documents may be used and this provides some protection. If there were no such limit, the risk of fabricating evidence would increase.
673. Adding to the Time and Cost of Litigation?[58] The rule against hearsay evidence, it is argued, limits the evidence placed before the court and prevents collateral issues being raised about the capacities of the maker of the statement as well as the witness, and about the circumstances in which the statement was made. To admit such evidence would add to the time and cost of litigation, for the dubious advantage of receiving evidence likely to be unreliable. There are countervailing pressures the tactical pressure of producing the most direct evidence available and the pressure of costs. It may also be commented that relaxation of the rule by legislation in the past has not led to a significant increase in the amount of hearsay evidence—at least in the area of firsthand hearsay (business records provisions are more widely used). That the floodgates have not opened is not surprising, however, having regard to the various limitations imposed by that legislation and the complexity of it.[59] It must be acknowledged that a significant relaxation of the hearsay rule could add to the time and cost of litigation.
674. Minimising the Risk of Surprise?[60] It is normally possible to anticipate what witnesses will be called and to prepare to test such witnesses and meet their evidence. It may be argued that the hearsay rule plays a significant part in this by ensuring that the parties will generally have to call the people directly involved in the matter. Relaxation of the hearsay rule could result in parties being caught by surprise. This could have an adverse effect on the fact-finding process and cause the party against whom the evidence was led to feel unfairly treated by the trial system. One solution would lie in the granting of adjournments—which would be disruptive and could be costly. An alternative is to require a notice procedure. It can be cumbersome and costly.
675. Conclusion. While most of the arguments supporting the exclusion of hearsay evidence must be qualified, there is much force in them. As a general proposition hearsay evidence is a category of evidence that should be regarded as significantly unreliable and for that reason warranting special treatment. Its poor quality may adversely affect the fact finding of the courts. In addition, it carries with it the other disadvantages referred to above—the danger that the party against whom the evidence is led will not have a fair trial, the danger of adding to the time and cost of litigation, and the dangers of fabrication and surprise. The view is taken that the present law is correct in taking the position that, prima facie, evidence of out-of-court assertions should not be admitted. At the same time the present law is open to serious criticism.[61] It is significant, however, that the present law fails in a number of those areas where arguments are advanced to justify it—it excludes probative evidence and thus detrimentally affects the fact-finding processes; it operates unfairly between the parties by excluding the best evidence available to them; it causes unnecessary expense. This highlights the problem of reform in this area.[62] While the rule against hearsay evidence may be strongly criticised for having an adverse affect on the fact-finding process, on the appearance of fairness and on the time and cost of litigation, its relaxation can give rise to similar disadvantages. In the area of hearsay evidence the policy objectives outlined earlier in this report both support each other and come into conflict. Whatever the proposal advanced, it will have a potential positive and negative impact on the fact-finding process, the fairness of the trial and its cost. In formulating exceptions to any proposed exclusionary rule it is necessary to formulate guidelines that will enable the appropriate balance to be struck between the policy objectives.
676. Tests Considered but Rejected. There is no simple guiding principle. Reliance is sometimes placed on the proposition that the ideal toward which the laws of evidence should move is to ‘admit such material as an intelligent layman carefully making important decisions in his own affairs would regard as worth taking into account’.[63] The processes, however, are very different:
An intelligent person making decisions in ordinary life is usually considering and deciding upon a course of action or inaction in personal, family or commercial life. He chooses for himself what material he will take into account. He depends upon the sum of his own experience and knowledge, upon what he reads, and to a large extent upon information and advice given him from sources which for various reasons he is prepared to trust. The process bears little or no resemblance to decision-making in an adversary system of litigation. In the latter, the fact finder does not choose his own material; the element of reliance upon trusted sources of advice or information is entirely absent. A set of facts has to be found or decided upon, and the law applied to it. It is elementary to the process that the decision making tribunal is personally indifferent to the outcome. Adversary system litigation is in the best sense an entirely artificial process; as a debate or even a game conducted according to rules is. As a guide to the admissibility of evidence, looking to what a reasonable and intelligent person would do in making decisions in everyday life is, it is suggested, of little use.[64]
There is also the difference that in ordinary life the individual, to making his decision, can take measures to protect himself if he decision turns out to be wrong and the decision will often be made on the basis of whether the risks inherent in it are worth taking.
677. Another approach sometimes advocated is that the purpose of the rules of admissibility of evidence is ‘to determine whether a given piece of evidence is worth considering, in view of the practical conditions of trials’.[65] While this provides a useful summation, it is not of great assistance because it merely re-states the issues—what evidence is worth considering?
678. The ‘Best Available Evidence’. It is suggested that the starting point for formulating exceptions to a rule excluding hearsay evidence should be the proposition that the ‘best evidence available’ to a party should be received.[66] This will assist the parties to present all relevant evidence and give the court the competing versions of the facts. In so doing, the appearance and reality of the fact-finding exercise will, on balance, be enhanced and so will the fairness of the trial process. The concept involves two elements—the quality of the evidence and its availability. The quality of hearsay evidence will vary considerably. Some categories of hearsay evidence, however, can be isolated and have been for the purposes of the proposal.[67]
• Remote Hearsay. A distinction can and should be drawn between firsthand[68] and secondhand hearsay. The view should be taken that secondhand hearsay is generally so unreliable that it should be inadmissible except where some guarantees of reliability can be shown together with a need for its admissibility. This view is supported by psychological research.[69] Another reason for the distinction is that secondhand hearsay is generally of no value to the party seeking to call it and would, if admitted, add to the cost and time of proceedings. It will be impossible to assess its weight in most cases. The Law Reform Committee[70] stated:
The probative value of second hand hearsay is in any event too small. Its admission might also lead to undue proliferation of evidence ... Where John gives evidence of what George said that William (who alone had personal knowledge of the matter) said, the honesty and accuracy of recollection of George is a necessary link in the chain upon which the probative value of William’s statement depends. There is no way of estimating the strength of that link unless George is called as 7a witness. The court thus lacks the material upon which to estimate the weight to be attached to William’s statement as probative of the fact in issue.
• ‘Contemporaneous’ First-hand Hearsay. A distinction can and should be drawn between statements made during or shortly after the events to which they refer and later statements. The least unreliable account of events is likely to be that given at or shortly after the event. Experience suggests that the account of an event given shortly after the event will be more accurate than one given months or years after the event.[71] We have all experienced the loss of memory of the detail of events. Psychological research, however, suggests that loss of memory is more dramatic than we realise and that we under-estimate the extent to which the memory is affected by a variety of distorting factors over time.[72] It may be argued that evidence of a statement made shortly after the event will generally be the best available evidence and that any exceptions drawn should recognise this.
The element of availability, however, raises at least two issues. First, where the eyewitness has died, become too ill to testify or cannot be found, his out-of-court statement will be the best evidence available of what he saw. Secondly, the availability of evidence in a practical sense depends upon the difficulty of producing it to the court. So, what is the best available evidence may depend upon a balancing of the importance and quality of evidence against the difficulty of producing it.
679. Criminal Trials—A Qualification. A major qualification to the above approach must be made in the criminal trial. The nature and purpose of the criminal trial has already been discussed.[73] The concern to minimise wrongful convictions requires a more cautious approach to the admission of hearsay evidence against the accused. The best available evidence for the prosecution should not necessarily be received. Where the maker is unavailable some guarantees of trustworthiness should be required (as at present in some common law and statutory exceptions). That same concern, however, reinforces the desirability of an approach without such limitations for evidence led by the accused. In addition, the cost of producing available direct evidence for the prosecution should be regarded as an issue of minimal or little significance. The accused is entitled to confront those who accuse him and expect that he will not be convicted on hearsay evidence where a relevant witness is available.
680. Safeguards. Where any reforms will lead to an increase in the hearsay evidence admissible in trials, consideration must be given to appropriate safeguards to minimise surprise and the probability of fabrication and enable the party against whom it is led to investigate it, meet it and test it whether by cross-examination or other means.
681. Cost and Time. Any relaxation of the hearsay rule will enable more evidence to be led and result in collateral issues being raised. A cautious approach to relaxation is warranted and the benefits of any proposal must be compared with the likely addition to the time and cost of litigation.
682. Outline. The approach is to affirm and continue a hearsay rule which, as at present, will exclude evidence that is relevant and otherwise admissible but to provide revised and simpler categories of exceptions which, if established, would entitle hearsay evidence to be admitted in court.[74] The approach taken in the proposals is to develop a new and comprehensive set of exceptions. These reflect the policy issues identified and ranked above. It was thought inappropriate to add new exceptions to the. existing law because we would still have an irrational body of law, which undesirably excludes hearsay that ought to be admitted and which would be even more complex and even more unworkable.[75] What is required is a re-statement of exceptions based on a sound conceptual framework.[76] At the same time, the proposals have drawn on the existing law where this is thought to be appropriate. The proposals distinguish between firsthand hearsay and more remote hearsay. A very restrictive approach is taken for the latter because the negative impact of such evidence generally predominates.
• First-hand Hearsay. As to firsthand hearsay the balance is struck in different ways for a civil and criminal trials and, in the latter, for the prosecution and the defendant. The balance is struck in broad terms as follows:
(a) Firsthand Hearsay—Civil Proceedings. Hearsay evidence should be received in civil proceedings where it is the best evidence that a party has available[77] to it or the cost of calling direct evidence is not warranted. So,
(i) Maker unavailable. Firsthand hearsay is admissible on notice where the maker of the statement is not available.
(ii) Maker available. Where the maker is available, evidence may be admitted without calling the maker in certain specified circumstances. Where the maker is called as a witness, the hearsay evidence is limited to that made at the time or shortly after the events referred to in it.
(b) Firsthand Hearsay—Criminal Proceedings. Hearsay evidence should not be admitted against an accused person unless it is the best evidence that is available and it can be shown to have reasonable guarantees of reliability. On the other hand, an accused should be allowed to lead hearsay evidence when it is the best evidence he has available to him. So,
(i) Maker unavailable. Firsthand hearsay is admissible for the prosecution on notice provided it satisfies specified guarantees of reliability. It is admissible for the accused on notice.
(ii) Maker available. The maker must be called and only statements made at or shortly after the events referred to in it are admitted.
• More Remote Hearsay. Secondhand and more remote hearsay would be inadmissible unless it comes within a category of evidence chosen on the basis of reliability or necessity or both. Separate sections deal with each category.
Safeguards are provided. The proposals are explained below in more detail.
683. Ease of Application. One of the objectives of the Commission has been to simplify the law. The legislation proposed may not at first sight seem simple. Two points should be made, however. First, compared to existing law, the proposal represents a significant simplification. Second, in practice, the proposal should be reasonably simple to apply. The provisions to be applied are found by first asking whether the hearsay is firsthand or more remote.
• First-hand Hearsay. The proposal for firsthand hearsay has been drafted in such a way that it will be necessary to look at only one section of the legislation in deciding its admissibility. That section is found by asking the following questions:
(a) is the trial a civil trial or a criminal trial; and
(b) is the maker of the statement available or not?
• More Remote. If the hearsay is not firsthand, its admissibility will depend on whether it comes within the categories of business records, reputation evidence and other categories of exception.
684. Definition of ‘Hearsay Evidence’—The ‘Implied Assertion’. The proposal applies to statements and conduct—so the term ‘representation’ is used.[78] The proposal resolves the issue[79] of whether the proposed rules should apply to implied assertions as well as express assertions, by recommending that a distinction be drawn between intended and unintended implied assertions, with the latter outside any hearsay rule:[80]
• Differences. Evidence of conduct, including statements from which an implied assertion of a fact can be drawn, suffers from weaknesses similar to those which affect evidence of express assertions of fact—the dependence on the perception, memory and clarity of the behaviour of the ‘asserter’ and the inability to test them by cross-examination of the ‘asserter’.[81] It will not, however, suffer from dependence on the veracity of the asserter unless the asserter intended that the assertion be implied from his conduct. If the implied assertion is unintended, then it is unlikely that there was any deliberate attempt to mislead. This analysis supports a distinction between intended and unintended implied assertions, with only the former being included within a hearsay rule.
• Additional Guarantee of Reliability. The implied assertion is based on the inference drawn as to the beliefs of the actor—a belief, for example, as to existence of a particular state of fact. Where a person acts on the basis of the belief
There is ... a guarantee of the trustworthiness of the inference to be drawn ... because the actor has based his actions on the correctness of his belief, ie, his actions speak louder than words.[82]
The strength of the guarantee will vary. It, however, is a reason for distinguishing between intended and unintended implied assertions.
• Practical Problems. To make unintended implied assertions subject to a hearsay rule and its exceptions could give rise to considerable practical difficulties. Every piece of human conduct is an assertion of something, even if it is only an assertion by the actor that he intends to perform the action that he is engaged in. In many cases, evidence of intention or state of mind is not direct. The intent or state of mind is inferred or implied from the conduct engaged in by a person. From that conduct the inference is drawn that the person intended to do the act complained of. The result of including unintended implied assertions in the definition may, therefore, be that the hearsay proposal would embrace evidence of relevant acts, however detailed and complicated they may be, because it is sought to tender such evidence to prove, inter alia, the intent or state of mind of a relevant person. Depending on the proposed exceptions and procedures, trials could be seriously disrupted and much evidence excluded.[83] Much would, of course, depend on the detail of the proposal.
The hearsay proposal will apply to written and oral statements and conduct intended as an assertion of fact.[84] As an alternative the Tasmanian statutory definition could be used—’conduct ... intended as a substitute for words’. It does not, however, deal with assertions to be implied from the spoken or written word. The concept of conduct intended as an assertion of the fact may prove difficult to apply in some cases. For example,[85] it may do no more than cover the nod or shake of the head. On balance, however, the exclusion of unintended implied assertions from the proposed hearsay regime is a more satisfactory solution. Such evidence will be controlled under the relevance discretion—balancing probative value against the disadvantages of admission.[86]
685. Evidence Admissible for a Non-hearsay Purpose. Under existing law hearsay evidence that is admissible for a non-hearsay purpose is not excluded, but may not be used by the court as evidence of the facts stated. This involves the drawing of unrealistic distinctions. The issue is resolved by defining the hearsay rule as preventing the admissibility of hearsay evidence where it is relevant by reason only that it would affect the court’s assessment of the facts intended to be asserted. This would have the effect that evidence relevant for a non-hearsay purpose—eg to prove a prior consistent or inconsistent statement, or to prove the basis of the expert’s opinion—will be admissible also of evidence of the facts stated:
• Tender of Prior Consistent and Inconsistent Statements. The proposals dealing with evidence relevant to the credibility of witnesses permit prior consistent statements of a witness to be tendered to meet suggestions that the evidence is a fabrication and where the witness is alleged to have made prior inconsistent statements.[87] The latter meets criticisms of the law.[88] The proposals also permit the tender by the cross-examiner of prior inconsistent statements.[89] A major change made to the law, however, is to allow consistent and inconsistent statements to be used not only to assess the credibility of the witness but also as evidence of the matters stated. This is the law in Queensland and Tasmania, where prior inconsistent statements are tendered by the cross-examiner, or where prior consistent statements are tendered to meet an allegation of ‘fabrication’. Enquiries have not revealed any difficulties in those States in the operation of these reforms. Anxiety has been expressed to the Commission that there must be a danger of fabricating self-serving evidence and an increase in the time and cost of litigation. The proposals, however, relate to prior statements of a witness which will bear on evidence already given. They will generally relate to matters of which the witness had personal knowledge or other matters of which the witness was able to give evidence under the rules of admissibility. There should not be a significant increase in time and cost. The statements are those generally admitted under existing law but for a limited purpose. It is suggested that fabrication is unlikely. This proposal[90] will operate only where the prior consistent statement meets an attack made on the credibility of the person who made it and parties would have no reason to expect that there would be any advantage in creating written statements for the trial. If any increase in time and cost should be caused, it is thought that the advantage of being able to consider such statements without the mental gymnastics required by present law is sufficient to outweigh such increases.
• Expert’s Evidence of Basis of Opinion. Reference has been made above to the uncertainties that exist as to the admissibility of such evidence[91] and to the unclear exceptions which have had to be created to meet the problems created by the hearsay rule. Under the proposal, evidence by an expert of the facts on which his opinion is based will be admissible as evidence of those facts. Potential dangers have been raised. First, there is the danger that false evidence may be placed before the court. However, the expert will usually form a judgment about the accuracy of what he is told. In addition the tactical pressure on the parties to verify the facts relied upon by the expert should ensure that problems of assessment of the evidence will not arise. They will either call more direct evidence or have to face adverse comment. When assessment problems do arise, the exclusionary discretions may be used.[92] This is similar to the present approach. Another danger suggested is that it could result in an increase in evidence adduced—particularly that which is adduced in the Family Court and is of marginal relevance. As at present, the expert will do no more than adduce evidence of the basis of his opinion—what he was told will be relevant to that opinion and the assessment of it. However, the relevance proposal and relevance discretion will apply and give the courts express control where now that control and its extent is unclear. It has also been suggested that parties will want to answer the allegations of marginal relevance and this will give rise to an increase in the evidence given. However, this should not occur. First the patty against whom the evidence is led can object to the relevance of the facts related by the expert—only those affecting his opinion will be relevant. As to such facts, that party will have to decide, as at present, whether he accepts those facts or wishes to challenge them. He would have to do this whether the evidence was admitted as the basis of the expert’s opinion or to prove the facts asserted—it would be a foolish party who relied on that distinction in relation to key factual elements and did not call rebutting evidence. The proposal in fact has the potential to save time and costs. At present, the party leading the expert evidence should lead non-hearsay evidence to confirm all the statements made to and relied upon by the court. If he does not, it will be open to the opposing party to argue that the opinion should be rejected—the hearsay rule will lie in wait. Under the proposal he can call witnesses to confirm the key material, and leave it up to the opposing patty to cross-examine the witness to raise the matters in issue. If he does not and leads evidence in rebuttal, it will be possible for the first party to call further evidence.[93]
686. Distinctions. The proposal for civil proceedings is developed from the approach taken in the English Civil Evidence Act 1968 and the rules made under it.[94] The proposal for criminal proceedings adds safeguards and distinguishes between the prosecution and the accused—consistently with the principles outlined above. A distinction is drawn between the situation where the person who made the out of court statement is available to give evidence and where that person is not so available.[95] Different conditions of admissibility for first hand hearsay apply depending upon the availability of the person who made the representation.[96] The definition of ‘unavailability’ is limited to persons prevented by legal incompetence from giving evidence or who are not permitted by law to give evidence,[97] and persons who are dead, cannot be identified or found after reasonable efforts or who resist all reasonable steps to compel them to give evidence.
687. Civil Trials-Maker not Available.[98] The first clause relates to oral and written hearsay and to the situation where the maker is unavailable. It should assist the court and the parties by enabling the best evidence that the parties have available to them to be led. Under the present law, this is possible only where the hearsay is in a document or, in certain circumstances, where the person who made the representation is dead.[99] As to the particular provisions,[100] the party wishing to tender the evidence must give notice[101] to the other parties. The form of notice is dealt with by regulations. The purpose of giving the notice is to avoid surprise and to give the other parties the opportunity to investigate the availability of the maker and the context of the representations.
• Commentators. One commentator has argued against the proposal on the ground that it raises the possibility of judgments being given based only on hearsay. He argued that the party against whom such evidence is given would be entitled to feel unfairly treated if judgment were given on hearsay alone. Alternatives suggested were—including a requirement of ‘freshness’, requiring corroboration, including a rule that no judgment may be given on hearsay evidence alone or distinguishing between the plaintiff tendering evidence and the defendant tendering evidence by imposing restrictions on the plaintiff but not the defendant.[102]
A judgment, however, could only be entered on hearsay evidence alone where the opposing party led none. It is would be rare for such a case occurring where it was defended. If it did, the tribunal would have to decide what credence to give to the hearsay evidence without the benefit of other evidence. It might reject it as unreliable or be unable to decide what weight to give to it—in which case it would have to find for the other party. If, however, the evidence is worthy of acceptance, should not the party be entitled to the benefit of that evidence? The problem is that it cannot be assumed that firsthand hearsay evidence is always so unreliable that no judgment could ever be based upon it. There will be cases where a judgment should be obtainable on hearsay evidence.[103]
688. Civil Trials—Maker Available. Two situations are covered:
• Dispensing with calling the Maker. It is to be expected that, as a general rule, the maker of the representation will be called if available. Adverse comment could otherwise be made. The party seeking to tender the evidence, however, should have the option of a procedure to avoid the costs of calling the maker.[104] It is intended that in civil trials the problem of whether a party should or should not have to call the maker of the previous representation who is available should be resolved so far as possible by the parties. The proposal has the effect that evidence of the previous representation, whenever made, may be given in evidence if notice is given to the other party and no objection is taken,[105] or if the court grants leave.[106] The judge may refuse to grant leave but reserve the question of costs. Rules of court enable leave of the court to be obtained prior to trial. The proposal also enables application to be made at the trial, where notice of objection is given for leave to tender the evidence without calling the maker of the previous representation. The proposal for this category is the same as the first category where the maker is not available.
• Maker Called. Where the maker is called, the proposal is restricted to representations made when[107] the facts were ‘fresh in the memory’. In the light of the findings of psychologists it appears that this is appropriate. There is very little to be gained by permitting the witness to refer to later statements as well as give oral evidence. There is also the risk of wasted time and costs and the fabrication of statements. ‘Freshness of memory’ introduces flexibility. It is used to limit the tendering of hearsay material where the maker of the representation is called to that which has the value of being fresh. The importance of the concept lies in the fact that it recognises the findings of psychological research which reveals the extent to which and rate at which memory loss occurs, and the decrease in the accuracy of statements that result from unconscious reconstruction and interference.[108] The proposal
― enables the witness to give uninterrupted evidence about what occurred at the relevant time (eg, what the butler said he saw);
― enables the best evidence to be received in the sense of evidence that is the freshest;
― removes the difficult and artificial line drawing of the present res gestae rules and the uncertainty as to what is the precise test to apply to decide whether something is part of the res gestae;
― enables the document used to refresh the memory of a witness to be tendered;
― enables the consistency as well as the inconsistency of the witness to be examined while minimising the risk of adding to the time and cost of trials resulting from the admission of hearsay evidence and minimises the risk of fabrication.[109]
The English Civil Evidence Act provision requires leave of the court to be obtained but no guidance is given. The Commission’s enquiries revealed reservations about admitting non-contemporaneous statements particularly those made after proceedings were commenced.[110]
Where the representation is contained in a document, the document may not be tendered until the conclusion of the evidence-in-chief unless the court otherwise orders. This proposal is derived from the English Civil Evidence Act 1968. Without it a witness could simply tender his previous statement in evidence in chief and give no oral evidence.[111] It is restricted to written statements. If it were not it would disrupt the giving of evidence—eg complaints, ‘res gestae’.
Notice is not required where the maker of the representation is available and called as a witness. It has been pointed out to the Commission that a notice procedure would negate the operation of the clause in circumstances where the maker of the statement is available to give evidence; it would not be worthwhile in practice to give notice in advance to the other side where the maker is available to give evidence. It would deprive the court of what would be, in many cases, the least inaccurate evidence available to it. In any event there would not appear to be any real need for notice where the maker is available and it is intended to call the maker. Notice should only be required where the maker is not available to give evidence. It is needed there to enable the other party to check the claim of unavailability and `the substance of the evidence. Further it should be required where a party wishes not to call the, maker.[112]
• Commentators. It has been questioned whether it is logical to require freshness of memory where the maker is available and called and not require it where the maker is not available. Different considerations, however, apply. Where the witness is available, there is no need to admit the evidence of the prior statements except where that statement was ‘fresh’. It is then likely to be the least inaccurate account of the relevant events. The proposal overcomes some of the technicalities of the present laws of evidence and minimises the risk of adding to the time and cost of trials resulting from the admission of hearsay evidence. Where the witness is unavailable, however, different considerations apply. To exclude previous representations whenever made in those circumstances would deprive a party and the court of the ‘best available’ evidence.
It has also been put that the requirement of freshness of memory will have the effect of excluding much evidence that is presently admitted under legislation such as the NSW Evidence Act.[113] It is said that we should not lose the substantial benefits of the existing legislation.[114] It is true that there is no such requirement in that legislation. The proposal, however, is more liberal than that legislation—for example, it does not contain any clause excluding statements made by ‘a person interested’;[115] it is not restricted to written statements; and it does not contain the narrow definition of when a document is deemed to have been made by a person.[116]
In practice, it is very rare for any statement of a witness who gives evidence to be admitted under that legislation. Ultimately the issue is whether a freshness of memory requirement is appropriate and should have been included in the existing legislation—as was done in Tasmania and the ACT.
689. Civil Trials—Residual Discretion to Admit? A residual discretion is not proposed. It is thought that the proposal contains an adequate discretionary element through the provisions enabling a party to obtain leave not to call the available witness. There is one situation where probative evidence might be excluded.[117] That is where the witness is called, has no recollection of the fact but evidence is available of a statement made well after the event. Such a situation, however, should be rare. Witnesses usually refresh their memory before the proceedings. Where the recollection is not revived it may be undesirable to admit evidence of such a statement. It is difficult for the court to assess the probative value of such a previous statement. An additional factor is that if the statement were admissible in those circumstances, there would be considerable temptation to create false evidence the witness swearing he cannot remember.
690. Another argument for a residual discretion is that it enables the courts to develop the law.[118] The issue, however, is whether the proposal is likely to exclude evidence which should be admitted and, if so, whether a discretion is the only method of covering the situation. It is thought that probative evidence will either not be excluded or, if excluded, would properly be excluded.
691. Criminal Trial-Maker not Available. Both the prosecution and the accused must give notice. The evidence must be given by a person who witnessed the representation. This ensures that the person giving the evidence was the person who heard or saw the representation being made. This may have a limiting effect in relation to written representations when compared to existing law.[119] This limitation is not found in the English Civil Evidence Act. It is thought to be desirable in criminal trials, however, because it will ensure that there will be a witness who can be cross-examined about the making of the statement and this will assist the court in assessing the probative value of the representation. The value of having the person who witnessed the representation was recently referred to by Chief Justice King in R v Calabria.[120] The point at issue in that case was the admissibility of a proof of evidence taken by a solicitor for the accused from the potential witness and dictated by the solicitor to a stenographer. Before the trial; the potential witness died. The proof was tendered at the trial on behalf of the accused relying on Evidence Act 1929 s 45b. The trial judge rejected the evidence on the ground that the statement was made or directed by the solicitor who did not have personal knowledge of the facts stated. On appeal, Chief Justice King disagreed with this reason but ruled that the evidence should have been rejected under the statutory exception that it would be ‘contrary to the interests of justice’ to admit the document. He came to this conclusion because the solicitor was not called to give evidence, he being overseas at the time of the trial. His Honour’s reasoning was:[121]
These are strong considerations against the admission of the documents. On the other hand, there is the competing interest of justice in the desirability of the jury having access to all relevant material. Rejection of the documents deprived the jury of the knowledge that Mr Marsala was prepared to make a statement supporting the appellant’s alibi. I do not underestimate the importance of the considerations in favour of the admission of the documents. Nevertheless in my opinion it would have been quite unsatisfactory to have allowed these documents to go before the jury without evidence, by way of affidavit or oral testimony, as to how Marsala came to be in the solicitor’s office, as to how statements were taken, and verifying that what was contained in the documents truly represented what Marsala had said. I think that a proper appreciation of the competing considerations would have led to the conclusion that the interests of justice required the rejection of the documents.
An advantage the proposal has when compared with the South Australian legislation is that it warns that the person who witnessed the representation should be called—the parties and lawyers know what is required.
692. The first clause sets out additional conditions which must be satisfied by the prosecution. These impose some guarantees of reliability. They are derived from the present declarations of deceased person exceptions to the hearsay rule but address the criticisms of them.[122] The proposal extends to representations by people who are alive but ‘unavailable’.[123] The proposal lists categories of circumstances where there is some protection against lying. Some warrant comment:
• ‘Contemporaneous’ Spontaneous Representations. The proposal includes an exception for representations made ‘at or shortly after’ the events referred to in it.[124] A formula is used which takes up the suggestions of the Privy Council in Ratten’s case.[125] It directs attention to the question of the likelihood of fabrication. An alternative suggestion has been made of requiring that the person be still under the stress of the situation. This has not been used because psychological research suggests that it would not protect against fabrication and stress adversely affects the perception and performance of the person under stress.[126] In addition, it would exclude evidence of statements made ‘shortly after’ the event which would have probative value.
• Depositions. Despite the risk of distortion of memory over time, prior sworn evidence in depositions should be received because of the pressures against fabrication. If it were to be excluded because of the possibility of inaccuracy, then all eyewitness testimony should be excluded. In most jurisdictions depositions taken in proceedings (for example, committal proceedings) are admissible in other criminal proceedings, subject to the conditions similar to those set out in the proposal.[127] It is proposed to extend the existing law to include depositions obtained in hearings before bodies other than courts.[128] The proposal also covers depositions obtained to preserve testimony[129] under State and Territory legislation. There are dangers in admitting this and other hearsay—as highlighted by an example given to the Commission. In R v Lynch and Watson[130] the Crown wished to tender depositions of evidence given at committal proceedings by the victim of an alleged police assault in proceedings which had been brought against the relevant police officers. It was sought to tender this evidence under s. 134 of the Evidence Act 1910 (Tas) which enables depositions to be produced subject to satisfaction of the conditions specified. The evidence was excluded on the basis of the general discretion to exclude evidence otherwise admissible. The grounds were that the jury would not hear the evidence of the alleged victim in person and the accused would not be able to cross-examine that witness. This is an appropriate result. On the other hand, the possibility of admitting such evidence should exist—for example hearsay evidence of a more routine nature and therefore likely to be accurate should be admissible for the prosecution. In the proposal, a similar exclusionary discretion is available.
• Statements against Interest. While there is the category of representation against ‘financial interests’, the history of the common law does not offer encouragement that the phrase would be interpreted to include a liability for damages or statements tending to damage reputation hence those specific categories are listed in a definition that is not exhaustive.
The Commission has been urged to include an additional broad category to enable courts to admit other hearsay in criminal trials.[131] The disadvantage of a category approach is that it can result in the exclusion of probative evidence. An option would be to include a clause similar to the alternative approach set out below.[132] The criticisms of that approach should be noted. The practical difficulties of such an approach are significantly lessened if its operation is limited to firsthand hearsay led by the prosecution in criminal cases. The option is not advanced as the preferred option, however, because it is thought undesirable that the trial judge should be seen to be admitting evidence against the accused in the exercise of a broad discretion. Admissibility of evidence for the prosecution should be seen to be determined by law not judicial whim.
As to evidence called by the accused, he is not required to satisfy the conditions which the prosecution must satisfy. This reflects the propositions contained above in the discussion of the principles that should guide the formulation of the proposal. The distinction is warranted primarily by the concern to minimise the conviction of the innocent. The proposal would enable the exonerating statements of the alleged victim[133] to be received, the confessions of third parties and statements of deceased persons who could have given evidence.[134]
• Commentators. Conflicting responses have been received to this proposal in so far as it relates to confessions of third parties. There is a fear that it would enable the fabrication of evidence—statements by anonymous bystanders, false admissions by friends to reputable people, anonymous remand yard confessions. The opposing view is that these fears are exaggerated and that it will be for the magistrate, judge or juror to decide what credence to give to such doubtful statements. The proposal also requires notice to be given. This should discourage such instances. It should also be borne in mind that either the accused or the third person who witnessed the representation would have to give evidence. They will be available for cross-examination and their credibility is likely to be easily damaged in the case of fictional remand yard confessions and the like.[135]
Concern has been expressed that the obligation on the accused to give notice is a departure from the traditional position that the accused is under no obligation to reveal his evidence. It alters the accusatorial nature of the system. It is justified, however, on the ground that the proposed reform enables the accused to lead evidence consistent with his innocence which he would not at present be able to do because of the hearsay rule. It gives the accused a benefit but places the prosecution at a disadvantage. That disadvantage should be minimised by the giving of notice.
693. The Criminal Trial—Maker Available. It is possible in the ACT and Tasmania to tender firsthand written hearsay in criminal proceedings, when the maker of the representation is called and the facts are fresh in the maker’s memory.[136] The proposal enables oral as well as written firsthand hearsay to be received if it was made when the facts were ‘fresh’ in the memory of the maker. It is not proposed that the prosecution or the accused be able to obtain leave not to call witnesses. While it should be open to them to consent to such a course, it is thought inappropriate and undesirable in a criminal trial to dispense with the calling of the eyewitness. The proposal would have the effect that complaints in rape trials which are at present received only as showing the consistency of the rape victim could be received as evidence of the matters stated, as long as they were made when the facts were fresh in the memory.[137] Also, evidence of out-of-court identification would be admitted.[138] The risk of fabrication is reduced by requiring that the representation be made when the facts described were fresh in the memory. It is not proposed to exempt the defendant from the ‘fresh in the memory’ requirement. If the requirement is not met, the witness may still give his evidence. It is difficult to envisage a situation where the accused would be unfairly disadvantaged. The clause gives a benefit to the parties—but only because the previous representation was fresh. There is not a case for conferring a further benefit on the accused. As in civil trials, where the representation is contained in a document, it may not be tendered until the conclusion of the evidence-in-chief unless the court otherwise orders.
694. A provision has been included to exclude proofs of evidence.[139] The NSW Law Reform Commission dealt with the issue by recommending[140] control by a discretion to exclude. The Commission commented:[141]
Proofs obtained by the prosecution will normally be obtained by skilled interrogators who are accustomed to converting jumbled and half coherent answers into passages of connected prose. Whether or not there is any ill will involved, and the desire of the police for witnesses to come up to proof will help to ensure that there is not, the utterances of an uncertain and perhaps unreliable declarant may be converted into an impressive, confident and internally self-consistent document.
The English Law Reform Committee commented:[142]
As every judge and advocate knows, witnesses often fail to ‘come up to their proofs’ in examination-in-chief—and this is one of the commonest ways in which truth will out. A proof is not really the witness’s own narrative, but a summary by the proof-taker of the witness’s answers to questions put by him which may themselves have suggested the answers. Had different questions been asked, the resulting narrative might have been different. When the witness goes into the box to give his evidence in chief, often different questions are asked. When the evidence is about disputed facts, we do not think this process should be omitted.
The competing considerations appear to be:
• on the one hand there is the risk of fabrication, the risk of improvement of the person’s account of what happened and the desirability of maintaining oral presentation;
• on the other hand there are the considerations that;
― the statement made while the facts are fresh in the memory of the witness is likely to be less inaccurate than the testimony given much later;
― many ‘proofs’ will not satisfy the test of contemporaneity;
― the usual legislative provision would have the effect of excluding statements relevant to the identification of the defendant;[143]
― discretions to exclude evidence will be included in the proposed bill;
― the fact the maker testifies will enable the court to compare the manner of speech and thought with that suggested by the document. It will permit the documents to be discounted if the declarant’s powers are not accurately reflected in it;
― it is proposed that the evidence be given at the end of examination in chief (as is the case in the Tasmanian legislation—s 81B(3) and after exhaustion of memory).
The concern remains, however, that wrongful convictions may result from the admission of proofs unless some additional requirement is imposed upon the prosecution, or other safeguards are introduced. It has also been put to the Commission that to generally permit the prosecution to tender proofs would unduly complicate and lengthen summary proceedings in magistrate’s courts.[144] For these reasons a provision dealing with proofs is included. It has been drafted to ensure that evidence relevant to identification is not excluded. It operates where the previous representation is tendered as part of the prosecution case. It should be read in conjunction with the refreshing of memory proposals.[145]
695. Notice. As previously stated, it is proposed that in two situations, parties should be obliged to give notice to the other parties of the intention to tender firsthand hearsay.[146]
• Maker Unavailable—All Trials. The proposal extends the range of hearsay evidence that is admissible and creates the danger of a patty being caught by surprise and being unable to check on the unavailability of the maker or the substance of the evidence. New safeguards are required. It is proposed that a party wishing to rely upon this relaxation of the hearsay rule in civil or criminal trials should be obliged to notify the other patties and give details of when, where and by whom the representation was made, why that person is not available, and the substance of the representation and other relevant representations by that person and the grounds relief upon. Concern has been expressed about whether this will open up collateral material and add to the time and cost of litigation. The material, however, would have to relate to the issues. The judgment that must be formed is whether the value of having the material from a fact-finding and fairness perspective—is worth whatever additional cost that is involved. Where the maker is available but is not called, for example on grounds of cost, there will usually be a saving of time and costs. An alternative, however, would be to restrict the other representations to those which contradicted, qualified or modified the representation of which notice is given.
It has been suggested that an objection procedure be included—if objection were taken the party wishing to tender the evidence would have to call the person who witnessed the representation and establish the grounds relied upon as justification for not calling the witness. The cost of calling the witness would be in the discretion of the trial judge. If no objection were taken, then the representation could be received in evidence without proof of the unavailability of the maker and calling the person who witnessed the making of it. The view is taken, however, that it is desirable from the point of view of the court and of the parties that witnesses be called in any event. Further, it is likely that objection would be taken in most cases to ensure that at the least there was someone who could be cross-examined about the making of the representation. To deal with the issue would also complicate the proposals with little or no compensating benefits.
• Maker Available—Civil Trials. Costs can be saved in civil trials in not having to call witnesses. The proposal extends existing law by enabling a party to avoid having to call witnesses who are available by serving notice on the other parties containing the above details and, should objection be received, obtaining the court’s leave—before or at trial—to not call the witness. If there is no objection the representation may be received in evidence without proof. In this context the notice provision not only protects the parties but also gives the court the means to regulate the admission of firsthand hearsay in civil trials. The judge will be able to resolve the issue of whether the witness should be called by directing that he be called and placing the burden of costs on the party objecting or, if in doubt, reserving the question of costs for further consideration after the witness’ evidence is concluded. In this way unnecessary objections can be discouraged. The procedure introduces a discretionary element and therefore uncertainty in preparation for trial. It addresses that problem, however, by enabling the issues to be resolved before the trial commences should a patty wish to do so.
A notice procedure is not a new idea. It is provided for in valuation cases in some jurisdictions. It is included as a requirement in the Tasmanian legislation reforming the hearsay rule.[147] It is a safeguard recommended in the majority of law reform proposals.[148] A comprehensive twenty-one day notice and counter-notice procedure was established in England in 1968 for civil trials. Under that proposal, firsthand hearsay is admissible if the maker of the statement is dead, unfit, can’t be found, is unlikely to remember the facts or is beyond the seas. It does not include impracticability or undue expense. Where the maker is called, leave is required.[149] Information on the operation of the proposals was sought and received from the Law Society, the Chancery Bar Association and the London Common Law Bar Association. The English Bar Associations expressed the view that the provisions are used frequently but could be more widely used. The Law Society expressed the view that the firsthand hearsay rules were used sparingly—because hearsay is unlikely to be admitted unless the maker is unavailable in the senses listed above. It stated, however, that the legislation had indirectly brought about a wider admission of hearsay evidence by agreement.[150] The English Bar Associations commented on the notice procedure, expressing general satisfaction with its operation. The Lord Chancellor’s Office expressed an impression that the notice procedure was not often invoked. Discussions with representatives of the Bar Associations revealed that oral notice and written notice are quite often given. Usually the time limits of the rules are not complied with but the courts administer them with flexibility. The proposal includes power to relieve the parties of the consequences of non-compliance with notice and notice of objection requirements. This is necessary to give flexibility where late notices are given, or the need to adduce the evidence was not apparent before the trial. It should also be available where proceedings are not defended and to protect the unrepresented litigant who may be unaware of the requirement.[151]
696. Notice—Commentators. Concern has been expressed about the practicality of requiring notice when so much litigation is prepared at the last minute. Reference has also been made to the risk of the opposite parties tailoring their evidence in the light of the information given in the notice. The arguments might have some force if the notice procedure was merely super-imposed on the existing law. The proposals, however, relax the existing law. They will permit more hearsay evidence to be admitted than at present—including oral firsthand hearsay. The party against whom the evidence is led should have the protection of notice in the two situations described. If the party tendering the evidence fails to comply with the requirement it is reasonable that it should be unable, subject to dispensation from the court, to take advantage of the relaxation of the law which can place the other party at a disadvantage.[152]
697. It was proposed in the research paper proposals that notice be given in all cases and that it include details of other relevant representations of the person who made the original representations. The additional provisions were included because of the concern to ensure that the advantages conferred by the proposal would not be too one-sided. The objective of a fair trial and accurate fact-finding seemed to require the clauses. It would also complement the obligation to give discovery. This would mean that a party seeking to tender evidence of representations advantageous to it would have to make available to the other party evidence of a representation that were not advantageous to it. Commentators, however, suggested that while the reason given for their inclusion was good in principle, it would make the procedure too unwieldy. This may have been true—particularly as the notice requirement was imposed in all provisions including that where the maker was called (although this is like the English law in civil trials and it is apparently working). The current proposal, however, is limited to the situation where the maker is not called. In those circumstances it is not unreasonable that the substance of all relevant representations should be available to the opposing party to consider and use if necessary. For the tendering party it is a reasonable price to pay for the advantage given. Disclosing the substance of all representations would, on occasions, involve a waiver of privilege. The desirability of this may be questioned. If there is no such disclosure, however, the party is given a double advantage. To require disclosure despite privilege would place the patty in a dilemma. But it can be resolved by the party. The party can decide which is more important—preserving the confidentiality or tendering the statement. It would seem unreasonable that a party should be given the advantage of tendering such representations without making available to the other party representations in their possession made by the same person.[153]
698. It has been suggested that the notice requirement should not apply to committal proceedings as the purpose is in part to give notice to the defendant of the evidence to be called at the trial.[154] Committal proceedings, however, also investigate whether the Crown has a case fit to go to trial. There would be advantages in having a notice provision apply to committal proceedings. The accused at those proceedings will be in a position to challenge hearsay evidence that would otherwise be admitted, check out the availability of the witnesses alleged to be unavailable and so on. Any notice by the Crown could be drafted in terms that it applied to the committal proceedings and any subsequent trial of the matter.[155]
699. Affidavits. The proposal does not require any particular form of notice. As a result a party can comply with the requirements by including all necessary information in an affidavit.
700. Discretions to Exclude. The proposals are subject to the exclusionary discretions referred to below.[156]
701. Introduction. Hearsay that is more remote than first hand hearsay is generally not worth considering.[157] The approach taken, therefore, is to identify those areas where there is a need to admit second hand hearsay and in those areas to formulate proposals containing sufficient guarantees of reliability to ensure that the evidence will generally be worth considering and sufficient safeguards to protect the party against whom the evidence is lead. The following areas are suggested as the areas in which there is a need to admit second hand hearsay:
• Public and Commercial Records. Records relied upon by commercial and government undertakings should be admissible as evidence referred to in them in whatever form they are kept—paper, disk, tape or microfilm. Such exceptions are recognised in differing ways in all jurisdictions.
• Reputation. As at present, evidence should be admissible of reputation as to family history and relationships, as to public and general rights and as to a couple living as husband and wife.
• Telegraphic Messages. The telegram, telex, and other similar records of messages should be admissible as evidence that the message was sent by the person named in it. In some States there is similar legislation which applies to telegraphic messages.
• Trade Labels. In some jurisdictions, legislation enables tags, labels or inscriptions to be received in evidence as evidence of the facts stated. The proposals should ensure the admission of such evidence.
702. Public and Commercial Records—Use of Commonwealth Legislation. The Commonwealth business records provisions are used as the basis for the proposal for public and private records kept by computer and other means.[158] They are derived from and very similar to the New South Wales business records provisions which have also been adopted in Tasmania.[159] They relate to representations contained in records of or kept by a business and recorded in the course of or for the purposes of the business. Although computers can be used for a variety of purposes, it is principally as record keeping devices that they must be considered in relation to the hearsay rule.[160] Computer records are kept by electronic means and with less human involvement than is the case with written records.
703. It is suggested that the safeguards of the document being part of a record of a business and of the statement being recorded in the course of or for the purposes of the business are sufficient threshold requirements to apply at the stage of admissibility of records kept by whatever means they are. The New South Wales Law Reform Commission in its Report commented,[161] that the fact that the statements were to be used by the business provided a strong incentive for accuracy. The same sort of threshold requirement has been used in Victoria and in Queensland in the provisions dealing with books of account of a business (general financial records and records of goods produced and stock records) and in the legislation of Victoria, Queensland and Western Australia enabling statements in documents to be admitted in criminal proceedings.[162]
704. It must be borne in mind, however, that Queensland, Victoria, the ACT, and South Australia have not followed this approach to records kept by computer. Their legislation contains provisions specifically designed for computer produced evidence. This legislation reveals an anxiety about the accuracy of evidence produced from computers and a suspicion of computers. The legislation sets out conditions of admissibility which are concerned with the reliability and accuracy of the equipment and systems. They have proved to be more difficult to satisfy than the common law.[163] The English legislation (upon which much of the Australian legislation is based), was described as being of ‘turgid complexity’.[164] A combination of the two approaches is to be found in the American Business Records approach which treats computer based evidence as coming within their business records exceptions.[165] Under that approach evidence is required that:
• The record was made in the regular course of business, at or near the time of the act, condition or event which it evidences;
• A qualified witness must testify to the identity and mode of preparation of the record; and
• The sources of information and method and time of preparation of the record must be such as to indicate its trustworthiness.[166]
Satisfying these requirements, however, can involve a vast amount of extremely difficult technical evidence.[167]
705. It is true that errors, accidental and deliberate, occur and can occur at every stage of the process of record keeping by computers. The fact is, however, that they are the exception rather than the rule, they tend to occur at the stage when the information is fed into the system, and there are techniques available which can be, and are, employed at each stage of the record keeping process to eliminate error.[168] The approach taken in the Commonwealth business records legislation is to leave the party against whom the evidence is led to challenge the evidence.[169] There are also provisions enabling the court to order production of related documents and further printouts. This is the only practical approach to receiving this sort of evidence. To require extensive proof, on each occasion, of the reliability of the computer records is to place a costly burden on the party seeking to tender the evidence, to give the opposing party a substantial tactical weapon and to add to the work of the courts. In many cases there will be no bona fide issue as to the accuracy of the record. It is more efficient to leave the patty against whom the evidence is led to raise any queries and make any challenges it may have.
706. Satisfaction has been expressed about the operation of the Commonwealth legislation. This does not mean that criticisms cannot be made of the legislation.[170] The proposal attempts to meet those criticisms.
707. Public and Commercial Records—Proposal. The documents must first come within the specified category of records[171] of or kept by business[172] and recorded in the course of or for the purposes of the business. The proposal, in conjunction with the proposals on the proof of the content of documents, will enable evidence such as airline tickets and trade documents (such as bills of lading) to be admitted as evidence of the facts stated in them. The qualified person requirement of existing legislation is removed. It is thought to have marginal value as a safeguard and significant disadvantages.[173] The proposal contains safeguards for the party against whom the evidence is led:
• Pending Criminal Proceedings. A representation made in the course of the investigation of an offence or for criminal proceedings cannot be adduced. The provision is derived from s 7D(3) of the Commonwealth Act and is modified to relate to offences under laws of the Commonwealth, a State or Territory. Without this provision, any note of information and rumour in police or private records gathered during the investigation of a crime would be admissible.[174]
• Pending Civil Proceedings. It is necessary to limit the application of the proposal to avoid it being used to admit notes of information and rumour recorded in the solicitor’s file or to circumvent the firsthand hearsay proposals—for example, tendering a proof of evidence in the solicitor’s file or statements in the business’ files. It is proposed that representations made for the purpose of or in contemplation of proceedings should not be admissible under the business records proposal.[175]
• Personal Knowledge. It must be possible to trace the information back to a person who may be supposed to have had personal knowledge of it. This requirement appears in other legislation relating to documentary hearsay. It is recommended in lieu of the ‘qualified person’ requirement, of the Commonwealth Act.[176] It effectively prevents the tendering of reliable records where information recorded is provided by persons who are not closely associated with the business whose records are involved.[177]
• Directions to Call Witnesses. The present Commonwealth Evidence Act 1905 does not provide a general mechanism by which the party against whom the business record is led may question the persons who supplied the information kept in the record or made the entries in the record. It does do so, however, in relation to criminal trials (s 7D).[178] The result is that, in civil trials, the judge is left with a choice of admitting or excluding the evidence under the discretions contained in the legislation when it appears to him that the party against whom the business record is led ought to be given the opportunity to cross-examine the persons involved in making the record.[179] But the right given by the Commonwealth legislation to a party in criminal proceedings to require the calling of all these persons goes beyond what is required to protect the prosecution and an accused person and places in their hands a dangerous tactical weapon.[180] The record is likely to be critical evidence for the most part only in those cases involving white collar crime. It seems reasonable to assume that the accused, for example, in such a situation will have some familiarity with the records and the operation of the record system. Under most State and Territory legislation, the maker of the statement or supplier of the information must be called as a witness unless the leave of the court is obtained. This, too, goes beyond what is needed for adequate protection.
The party relying on the record will at times need to call those responsible for the entries and runs the risk of little weight being given to the record if they are not called. Some protection for the other party, however, is needed in both civil and criminal trials. It is proposed that the court have the power to direct the calling of persons involved in making the record. This together with adequate discovery,[181] and the right to cross examine the officer who verifies the conditions of admissibility should be sufficient protection. The need to give such a direction will arise where there is a genuine dispute on a matter arising out of or related to the representation. Reservations have been expressed about drafting a provision in those terms. The concept is to be found in legislation and rules of court entitling a judge to dispense with rules of court where there is no genuine dispute.[182] The Commission has received conflicting views on how difficult it is to determine the negative proposition. The proposal provides more guidance by identifying matters to be considered—the importance of the evidence; whether there is a genuine dispute; whether there is reasonable doubt about the accuracy of the representation, document etc.; the cost and delay involved in complying with the order; the nature of the proceedings. This is to be compared with a provision such as Evidence Act 1929 (SA) s 59b(6) (the computer legislation) which enables the court to require evidence to be called ‘if it thinks fit’.[183] This gives no guidance.
• Costs. It is important that the court has the means to ensure that the right to have persons called as witnesses is not abused. To assist in this express provisions are included to enable the court to make appropriate cost orders. This would be of more significance in civil, than criminal proceedings.
• Exclusionary Discretions. The discretions to exclude, applicable to all evidence, will also be available to the court to strike the right balance between the parties.
708. Public and Commercial Records—Matters not Dealt with. A number of matters dealt with in the Commonwealth business records provisions have been omitted or dealt with in a different way:
• s 7A—Definitions. The definitions of the terms ‘derive’, ‘proceeding’, ‘qualified person’, and ‘statement’ have been deleted and the expressions ‘proceedings’ and ‘statement’ replaced with ‘trial’ and ‘representation’. This results from the proposed substantive changes and from the proposed drafting.
• s 7A(3). This sub-section defines the meaning of the expression ‘a person . . . concerned in the making of a statement’. This definition related to the section dealing with tendering business records in criminal proceedings and it is not proposed to use that section.
• s 7C(2), 7E(2) and 7K(3) & (4). These sub-sections enable a court to require production of the whole or a part of related ‘documents’, the relevant ‘record’, and order the production of a ‘document’ for examination and testing. Production of documents and records is dealt with in the context of discovery and inspection generally.
• Weight. There is a detailed provision in the present Commonwealth legislation[184] which states matters that should be considered in determining the weight to be attached to a statement contained in a business record rendered admissible under the Act. Such a provision is also found in other legislation. It enables any party against whom the evidence is led to argue that the court cannot properly determine the weight to be attached to a statement in a business record tendered under the Act unless it has before it evidence of at least those matters that are referred to in that section. Thus although it is a provision which ostensibly relates to weight and not admissibility, it can have the effect of obliging the party tendering the evidence to lead evidence of the matters referred to in it. The further inherent problem with the existing section is that the attention of the court is likely to focus on the matters listed to the exclusion of other matters.[185]
• s 7K(1). This section deals with methods of proving the contents of records kept on modern media. The issue is dealt with in the proposals on the proof of the contents of documents.
• s 7L. This section provides that a copy of a document may be authenticated in such manner as is prescribed or the court approves. Authentication should not need a special provision within the hearsay proposals.[186]
• s 7M and s 7Q. These sections give and preserve discretions to exclude evidence. Discretions such as these should apply generally and not just to hearsay evidence. It is suggested that the power in s. 7M(1) to exclude evidence that would be ‘unfair to another party’ should be deleted for the reasons discussed above.[187]
• s 7N. This section enables the court to withhold a document from a jury if the jury ‘might’ give the statement undue weight. The issue should be considered in its application to evidence generally.
• s 7P. This section prevents the use of the document as corroboration. It is not necessary in the light of the proposals in that area.[188]
• s 7R. This section provides that the court may make orders as to admissibility of any statement or evidence under the Act at any stage of the proceedings. It is suggested that this provision is not necessary.
• s 7S. This section sets out in detail the matters which may be dealt with by regulation. No regulations have been made. It should be sufficient to enable any future emergencies to be dealt with to have a general regulatory power not a detailed one. If it is to be specific, it should be limited to rules and regulations relating to notice procedures, discovery, and inspection.
709. The proposal on business records does not distinguish between civil and criminal proceedings. The Commonwealth legislation did not do so except in relation to the power given to parties to criminal proceedings to demand (constantly) that persons involved with the record be called. It is thought that it is not appropriate to draw the distinction in specifying the guarantees of reliability.[189] It should also be borne in mind that generally the record will be the most reliable evidence available. Where criminal proceedings relate to a record that has been the subject of fraudulent alteration and its reliability has been affected, that very record will in itself be important evidence. Further, in such trials, the accused is often the person with the most intimate knowledge of the records. It is appropriate, however, for the court to have regard to the special nature of the criminal trial. In particular, a judge should be more willing to make orders requested by an accused. The proposal also does not require notice to be given. This was proposed in Research Paper No 3. The consensus that emerged in comment on that proposal was that notice was unnecessary, added to costs and gave no more protection than appropriate discovery rights.
710. Evidence of Reputation. The proposal deals with other categories of hearsay evidence which are not covered by the general proposal. The proposals relating to reputation evidence are somewhat similar to that suggested by the NSW Law Reform Commission.[190]
• Reputation as to Family History and Relationships. The proposal overcomes criticisms that have been made in the past of the common law in this area of the requirements that:
(a) the statements on which the evidence of reputation is based were made before proceedings were contemplated. This should go to weight.
(b) the source of the information about reputation should be a blood relative or the spouse of such a blood relative who must have died. This has been criticised as too limited.
The limitation as to prosecution evidence in criminal proceedings is necessary to avoid secondhand hearsay of family relationships being tendered against an accused person in incest prosecutions or bigamy charges and charges of marriage within the prohibited degrees. The limitation is consistent with the guiding principles formulated in the introduction.
• Reputation as to Public and General Rights. The proposal extends the existing common law exception. It omits the following restrictions which have been criticised:
(a) the limitation to declarations by deceased persons.
(b) the requirement that any statement upon which the reputation evidence is based was made prior to the dispute arising. This should go to weight.
(c) the requirement of ‘competent knowledge’ of the reputed existence of general rights. It has the result of requiring a distinction to be drawn between ‘public’ and ‘general’ rights and does not appear to serve any useful purpose. The issue of ‘competent knowledge’ went to the question of whether the person who had made the statements upon which the evidence is based had some special knowledge of the matters stated. This can properly go to weight.
The provision does not apply to prosecution evidence in criminal proceedings. The existence of a public or general right may be a key issue—is a road a public road (compare proceedings for offences relating to the Franklin dam)?
• Reputation as to Marriage. This proposal essentially follows the common law. It preserves admissibility of that hearsay evidence which is necessary to prove the basic facts of the common law presumption of the validity of a marriage arising from cohabitation and evidence of reputation that a man and a woman were married.[191] The distinction between the civil trial and the defendant in the criminal trial reflects the principles outlined in the introduction to the proposal and existing common law.[192]
The exclusionary discretions will be applicable.
711. Telecommunications. The rule against hearsay evidence prevents messages in the form of telegrams, telexes, teleprinter, and telefacsimile being admitted by the recipient as evidence that the message was sent by the person purporting to be the sender to the person to whom it is addressed on the date referred to in it. In several States and Territories[193] there is legislation dealing with ‘telegraphic messages’. It enables the message to be used for the above purpose subject to evidence being given that it was duly received from a telegraph office. A similar but modernised provision will be needed as otherwise the proposals would not cover all the above forms of messages.[194] The present legislation in this area deals with several matters. It makes notice a condition of admissibility. This is too onerous and unnecessary. It is intended that the proposal should include messages such as telex messages and documents transmitted electronically by telefacsimile devices. For the message to be used for the above purposes it is necessary that there be evidence that the message was received from Telecom (as telegrams are) or was produced by a telecommunication system (such as a telex system). The wording used allows for the fact that messages may be prepared and be sent by machines. The exclusionary discretions will be applicable.
712. Other Categories. The proposal advanced in the research paper did not readily enable the admission of materials such as trade labels, tags, inscriptions on goods as evidence of the facts stated in them—eg, the place of origin, identity of manufacturer. There is a need to admit such evidence. The need has been recognised in some jurisdictions by the enactment of legislation.[195] There is a sufficient guarantee of trustworthiness to warrant the exception.[196] The proposal provides an exception which will cover postmarks—an exception at common law.[197] The exclusionary discretions will be applicable.
713. Ancillary Provisions. A number of matters must be proved under the draft legislation Division 3 in relation to business records and telecommunications. Under the proposals this can be done by affidavit. The proposal[198] describes the person who may give such the evidence—a person occupying a responsible position in relation to the making or keeping of the documents. The proposal saves the time and cost of calling the person to give evidence every time such evidence must be given. This is not possible under the present Commonwealth business records legislation.[199] The proposal also enables cross-examination of the deponent as to satisfaction of the conditions of admissibility and as to the reliability of the record keeping system and of the persons who supplied the information. This is an important safeguard.
714. Weight. In some of the legislation providing exceptions to the hearsay rule, there is a provision referring to what should be considered in deciding what weight to give evidence admitted under that legislation.[200] The provisions generally refer to the recency of the statement as compared with the facts asserted and whether the person had a motive to misrepresent the relevant matter in the statement. It is also common to direct the court to consider all circumstances which may shed light on the correctness of the statement. It is thought little is gained from such provisions in that they do not do any more than state the obvious. There may be some danger in such clauses in that the matters listed are likely to be the only ones considered.[201] It is not proposed to include proposals in the legislation. An examination of the legislation will draw attention to the fact that certain factors can have a positive impact on probative value.
715. Discovery. Relaxing the hearsay rule as proposed carries with it dangers in precisely the same areas which support the arguments for the rule. Its possible unreliability, the limited ability to test it and the risk of surprise could lead to error and be unfair to the party against whom it is led. The proposal, however, will not operate in isolation. It will operate for example, in the context of pre-trial discovery. This reduces the surprise element and places the parties in a better position to test evidence given and prevent deception. It is not suggested that it is a complete protection—it depends on the honesty and thoroughness of those who prepare the affidavit of documents for it is difficult to go behind the affidavit. In most cases, however, it is a useful protection. An issue to be considered is whether the present law of discovery is otherwise adequate to deal with situations that will arise under the proposal. The view taken is that it needs strengthening.
716. Discovery—Civil Trials. Interrogation and discovery of documents is available. There are, however, two major deficiencies—existing discovery rules do not apply to modern documents and record systems and the law of privilege will prevent access to materials related to or connected with hearsay material that may be admitted under the proposal.
• Modernising Discovery. Rules relating to discovery should extend to cover more than paper records and extend, as defined at present in the Commonwealth Evidence Act, to include tapes, disks, microfilms and other media. This has already been done in the Federal Court Rules. The Rules of the High Court, the Family Court Regulations, and the Rules of the Australian Capital Territory Supreme Court do not refer to documents in the wide sense defined in the Commonwealth Evidence Act. Nor does the Court of Petty Sessions (Civil Jurisdiction Ordinance) Act.[202]
To test and assess the accuracy of computer evidence, for example, a party needs access to the original data, details of the equipment and its original software (eg equipment manuals), details of any relevant programs, log books (recording software used, changes to programs) and details of the systems security features.[203] It should be possible to apply the discovery procedures available in civil trials to cases where computer evidence is relevant. The usual procedure is for notice to be given by one party to the other. The party on whom the notice is served must swear an affidavit listing the documents in its possession or power[204] relevant to the case and state whether it objects to the production of any for inspection by the other party. The obligation extends to documents which might reasonably be supposed to contain information which may directly or indirectly assist the applicant or damage the adversary.[205] The party seeking discovery can challenge any refusal to give discovery and the court will rule on what is to be done. So, a claim of privilege will be tested.[206] To be successful, the claim of privilege must usually be based on one of the recognised privileges. There is an implied undertaking imposed on the party seeking discovery not to use the information obtained for an ulterior or collateral purpose—improper use amounts to contempt. Courts can, in addition, require express undertakings where the material is especially confidential.[207]Discovery, however, should be extended to enable the party against whom the evidence is to be led to examine the record keeping system and to have provided to it all information, materials and equipment needed to understand the way in which the records are kept and compiled and how any visible reproduction of the contents of the record is produced.[208] It is also necessary to empower the courts to give directions of a similar nature. Pre-trial discovery is not available in all courts.
• Costs. The costs of discovery should be in the discretion of the court, to avoid tactical abuse of the rights given.
717. Discovery—Criminal Trials. The present law reflects the nature and purpose of the criminal trial in placing general obligations on the prosecution but not on the accused:
• Prosecution. The accused has no right to discovery of the prosecution case. The prosecution, however, has a discretion to reveal information to the defence (and call evidence favourable to the defence) in performing its duty to see that all available legal proof of the facts is presented.[209] This may be done informally, before or during trial and, where they occur, in the course of committal proceedings. Such an approach is less than perfect in an adversary trial system. The prosecution is placed in a conflict situation—it must present and pursue the case for conviction but at the same time consider whether to disclose or call evidence that may prevent conviction. The Canadian Law Reform Commission was extremely critical of this situation:[210]
While the prosecution may be in error as to the reliability of a witness, yet, and here is the limit of the moral imperative, the prosecution cannot discharge the functions of both prosecution and defence. This problem is not limited to the situation of possible witnesses who might have evidence favourable to the defence but who the Crown may regard as unreliable. It applies to all evidence that might have a different value or importance when examined by the defence and which might be admissible at trial or lead to the finding of admissible evidence. The fallacy of allowing the moral imperative on the prosecution to substitute for the formulation of precise discovery rules is fully revealed when it is remembered that prosecutions are conducted in the adversary system where both sides are expected to advance their own case and to challenge their opponent’s, from which the result emerges. In essence, to substitute the moral duty on the prosecution to call evidence that may be favourable to the defence in place of a system of discovery that would allow the defence to examine the information for itself and make up its own mind about its importance, is a denial of the very reasoning of the adversary system.
It requires a very high degree of objectivity if the prosecution in an adversary trial is to make the correct decisions about disclosure. There have been cases which have aroused serious criticism.[211] There are no doubt many other instances of non-disclosure which, if known, would attract similar and proper criticisms. Given the adversary nature of the trial process that would not be surprising.[212] A further deficiency is that, assuming the defence happens to find out about the non-disclosure after the trial, the exercise of the discretion by the prosecution will be interfered with only if misconduct can be shown and it gives rise to a miscarriage of justice.[213]
There is a very strong case for pre-trial discovery by the prosecution in criminal trials. It exists in a number of American jurisdictions.[214] The Royal Commission on Criminal Procedure[215] recommended pre-trial disclosure of material on which the prosecution intended to rely, but recommended that pre-trial disclosure of information that could be helpful to the defence should be a matter for the prosecutor’s discretion. It appears to have been influenced by the argument that to require disclosure as a matter of routine would be too costly. Why it should be significantly more expensive than discovery of the prosecution’s own case is not clear—unless the prosecution were in the habit of withholding substantial quantities of exculpatory material. It is thought, however, that the topic is outside the terms of reference except to the extent that changes should be introduced if subsidiary to reform of the law of evidence. One such situation is that where the prosecution wishes to lead evidence of representations by a person who is not available to give evidence. The proposals relax the existing law and the accused and the trial system are entitled to the safeguard of access to other relevant representations of the unavailable person. It is proposed, therefore, that the prosecution should, through the notice procedure, disclose other relevant representations made by the unavailable witness.
• The Accused. The accused is under no general obligation to disclose his case to the prosecution.[216] The Canadian Law Reform Commission put the issue thus:
Is there not an equal need to provide discovery to the prosecution in order to fully achieve the reasoning of the adversary system, that ‘with each side on its mettle to present its own case and to challenge its opponents, the relevant unprivileged evidence in the main emerges in the ensuing clash’? In other words should not discovery in criminal cases be a ‘two-way street’?[217]
To take the view that the criminal trial is simply an adversary proceeding is, however, to misunderstand its nature and purposes. It is an accusatorial process and its accusatorial nature provides a basis for preserving the status quo so far as the accused is concerned. In any event, the general topic of discovery being outside the terms of reference, it is proposed that the issue be limited to discovery relevant to the hearsay proposals. The hearsay proposals relax the existing law as it affects the accused. It also places the accused in a favoured position compared to the prosecution in the situation where the maker of the representation is unavailable. The concern is to ensure that explanatory statements by the victim of the crime and third parties confessions should be admissible. The prosecution and the trial system, however, should be protected so far as is possible against fabricated and incomplete evidence. This need is particularly acute where the accused wishes to adduce evidence of representations made by a person unavailable to give evidence. Where the accused wishes to avail himself of this reform he should be obliged to give discovery of relevant representations. This will be controlled through the notice procedures.
In addition there is general power to require production of documents and witnesses for cross-examination. Somewhat similar powers exist already in the Commonwealth, New South Wales and Tasmanian business records legislation.
718. Waiver of Privilege. The proposal will permit the tender of statements of people who are not available. A valuable source of material with which to test such statements would be notes, tapes of interviews, drafts of proofs. As the Justice Committee argued:
It seems to us that if the witness dies before the hearing and this final version is proffered as evidence under the Act it is only proper that the party against whom it is tendered should have disclosed to him all the previous versions along with the solicitor’s notes of attendance and other memoranda which came into existence in the course of his compilation of the witness’ proof ... This rule should in our opinion apply equally in the cases where the witness is alive and called as in the case where he is dead or otherwise unavailable.[218]
This would require changes to the law of privilege. What is required, however, is extension of the effect of the waiver of the privilege that is involved in tendering the statement under the hearsay proposal.[219]
719. It is proposed that where evidence is given of a statement alleged to have been made by a person unavailable to give evidence, the substance of other relevant statements of that person should be disclosed to the parties.[220] An alternative is to limit the loss of privilege to statements which contradict or qualify the statement of which evidence is given under the hearsay provisions. It is not proposed to go further and require disclosure of other privileged statements by the person who gives evidence of a privileged statement. The opposing party has the opportunity to test that witness’ evidence. This protection is not available where the person is unavailable to give evidence. To require further disclosure where the person concerned gives evidence could make considerable inroads into the protection given to privileged communications. On balance it is thought not to be justifiable.
720. Corroboration. It has been suggested to the Commission that a provision be included to prevent the conviction of an accused on uncorroborated evidence of business records. It is thought, however, that this would be too limiting and more than is required to deal with the dangers involved. Provision is made, however, for the judge to consider whether to warn a jury about the weaknesses of hearsay evidence in a particular case.
721. Evidence as to Credibility of the Maker of the Statement. The power to tender evidence relevant to credibility is a further protection for the party against whom it is proposed to lead evidence under the proposed clauses. Somewhat similar provisions are to be found in existing legislation in some States and Territories and a provision dealing with the same subject matter is to be found in the Commonwealth business records legislation.[221]
722. Drawing of Inferences. The proposal enables inferences to be drawn from any document sought to be admitted relevant to the application of the hearsay provisions.[222] Some differences have emerged in the use of the equivalent provision in the New South Wales legislation.[223] These differences may be reduced if the courts emphasise the fact that the inferences sought to be drawn go to issues of admissibility and not to the issues in dispute.
723. Discretion Instead of Rules. Justice Kirby[224] disagrees with the approach proposed to hearsay law reform. In his view it is, when compared with his proposal, too complex. As well, in his view, it would be more difficult for laymen whether as litigants or witnesses to understand. Rather than relying on a rules approach, as is proposed, he would prefer to lay down a single broad test: a ‘discretionary inclusionary’ approach, under which judicial officers could admit evidence, although hearsay, after considering certain clearly stated conditions of a general character. Under this approach, the general rule against the admission of hearsay evidence would be maintained. However, in place of numerous specific exceptions the court would be authorised by statute to admit hearsay evidence provided the following requirements were established to the satisfaction of the court:
• Reliability. That the evidence was likely to be reliable.
• Convenience. That the evidence was more probative on the point for which it was offered than any other evidence which the proponent could procure through reasonable efforts.
• Justice. That, balancing the arguments for admission and rejection of the evidence, it would be fair and in the interests of justice to receive the evidence.
• Countervailing Reasons. That there was no countervailing reason of law or public policy that required the rejection of the evidence, such as the rules that require or permit courts to reject even reliable and probative evidence obtained:
• unfairly or unlawfully;
• as a result of threats or violence; or
• in circumstances that would make its admission unsafe.
In the view of Justice Kirby, the establishment of such criteria would produce a simpler and more rational approach. It would be flexible in operation and development. In his view, the sacrifice in certainty would be small and would be more than offset by encouraging all concerned to a clearer understanding of the forensic purpose served by the general exclusion of hearsay evidence and the needed exceptions to that general rule.
724. A legislative draft reflecting this alternative approach is set out below.[225] Elaboration of the general requirements would be offered in the evidence reform statute to give guidance and to aid in uniformity of application. For example:
• Reliability. A definition of the content of ‘reliability’ is given. Factors include—
• whether the statement was made at a time when the facts referred to in it were or might reasonably be expected to have been fresh in the memory of the person making it;
• if the statement is contained in a document, whether the document was prepared as part of an organised system for preparing and keeping documents; whether first hand hearsay, or more remote hearsay is involved; the risk of fabrication.
• Fairness. Although it would seem undesirable to lay down an absolute requirement of notice, the draft legislation includes an indication of the considerations that should be taken into account. Of these notice is but one. Relevant factors include–
• recognition of the general principle that a party to a trial should normally have an opportunity to test by cross-examination or otherwise and contradict evidence admitted against him;
• consideration of whether the facts asserted in the statement are genuinely in dispute;
• consideration of whether the maker is or is not called;
• consideration of whether the person who made the statement is or would be with reasonable efforts, available to give evidence;
• reasons, if any, for not calling the person who made the previous statement;
• whether notice was given of the intention to offer the evidence and, if so, whether such notice was sufficiently in advance of the trial to permit the party affected a fair opportunity to meet it and whether the other side has objected or not.
The United States Rules operate against a background of extensive pre-trial discovery in both civil and criminal trials. Expanded discovery and the growing use of interrogatories, particulars and other interlocutory process would assist relaxation of the hearsay rule in Australia.
• Formula. The US Federal Rules have a residual inclusionary formula. Those Rules first set 23 hearsay exceptions and then list ‘a statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the points for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence’. Rule 803 (24) of the US Rules has not been interpreted ejusdem generis the other Rules, that is, its general words have not been read down so that it is within the parameters set by the 23 specific exceptions which it follows. The draft legislative formula reflecting the dissent is analogous to US Rule 803(24) in the broad criteria laid down. It also reflects the Commission’s second report on Criminal Investigation and the approach taken there to the exclusion of improperly obtained evidence. In short the approach picks up the residual rule where the US Federal Rules, after instancing many exceptions, finally sought to state a general principle for other exceptions likely to arise.
725. Other Relevant Matters. Matters relevant to exercise of the decision to admit or not to admit hearsay evidence include:
• the effect on the cost and length of the trial;
• the extent to which the evidence would duplicate other evidence without substantially strengthening the party’s case; and
• the importance of the issue in the case to which the evidence relates;
• there should be an obligation to state reasons for rejection of evidence, providing a basis for judicial review.
726. Advantages. The broad inclusionary test approach would bring forward the principles that are relevant (reliability, procedural fairness and justice, and the preference for the best evidence) so that they would become the guiding principles.
• Avoids Rules Categorisation. It would avoid the detailed categorisation which a rules approach must adopt, by which hearsay evidence within the prescribed categories may be admitted and other evidence although probative may be excluded if it does not happen to fall within any of the categories.[226] The issue is considered above.
• Comprehensiveness and Flexibility. It would cover, under the one broad rule–
• business records, computer records and other documents and statements, without detailed technical categories or exceptions;
• first hand and more remote hearsay, and a copy of a copy of a document;
• civil and criminal proceedings.
The same general rule would be capable of application to other areas of the law of evidence for example, secondary evidence of documents.
• Simplicity. Instead of further proliferating exceptions, an attempt is made to state basic concepts. Simplicity should increase ease of understanding including by lawyers on the Bench and at the Bar table.
• Other Legal Systems. It would reflect the approach taken in legal systems other than those of the common law, where the hearsay rule—and other rules of evidence—are unknown. In these other systems however the judge has complete control over the evidence that is tendered and lawyers can ask questions only through him.[227] It would also be analogous to the treatment of hearsay under the US Federal Rules which has, as has been stated, a general residual test analogous to that recommended in this dissent.
727. Disadvantages. The specific and general criticisms that have been levelled against the broad inclusionary test approach include:
• Reform Would Fail. Judges and lawyers brought up in the traditions of the hearsay rule would perpetuate the rule and its exceptions, so long as a category of indeterminate reference (‘reliability’ and ‘fairness’) was offered as a substitute for established detailed rules governing the admissibility of evidence in court.[228]
• Inequality before the Law. Confidence in leaving to a relatively unfettered judicial determination the decision whether evidence will be admitted is not universally shared. A lack of uniformity amongst the judiciary and inequality before the law is likely to be a problem of legislation which appeals only to broad concepts such as justice, fairness and reliability. To some extent this point is met by providing detailed criteria. But this is likely to reintroduce complexity and judges will still differ in the importance they attach to relevant criteria.228a
• Lack of Certainty and Predictability. The inclusionary discretion is so broad that it will be difficult to predict in advance of the trial whether certain important hearsay evidence would or would not be admitted. On this basis parties would have to have available all witnesses who might need to be called. It would become more difficult for legal advisers to advise as to the prospects of litigation. Pre-trial settlements could be inhibited. Thus it is likely to lead to inconvenience to the participants, and could lead to an increase in backlogs and delays. All these factors could increase costs.[229]
• Floodgates. The hearsay rule and established exceptions help limit the evidence (and hence the costs) of trials. The evidence ‘floodgates’ could be opened, and the courts swamped by evidence of marginal relevance. Hearsay evidence, as noted below would have to be received subject to objection because of the difficulty of deciding its ‘reliability’. The deliberate creation of evidence would be encouraged eg, by the giving of self serving accounts of relevant events to suitable prospective witnesses.[230]
• Potential for Delay and Interruption. Any litigant could object to the admissibility of any hearsay evidence and having done so the court would have to consider the multiplicity of factors and issues referred to in the proposal. This would increase the power of monied and legal aided litigants to protract hearings inordinately for tactical reasons by:
• arguing the admissibility of each piece of opposition hearsay evidence at length—eg, entries in hospital records, bankers’ books, financial records of companies; and
• tendering many witnesses to give hearsay evidence.
In the same way it would be possible to harass witnesses by objecting to all hearsay evidence.[231]
• Exclusion of Evidence. Under the broad test approach all hearsay evidence would be subject to the risk of exclusion. Evidence presently admissible would be excluded.[232] The proposal as with any broad discretionary approach would also result in the exclusion of evidence which would be admissible under the majority proposal.[233]
• Appeals. The proposal properly recognises the need, where such broad decision making power is given, to require the court to state its reasons so that the matter can be taken on appeal and dealt with adequately there. A broad discretionary approach, however, must result in increasing the points of objection available to parties and thus grounds of appeal. This can only increase the number and length of appeals. An issue not dealt with in the dissent is the precise nature of the appeal.[234]
• Other Legal Systems. Assuming the proposal reflects the approach taken in non common-law countries, it does not follow that it should. The trial systems in those countries are very different and it is not surprising that rules of evidence (including hearsay rules) have not developed. As to the US Federal Rules a discretionary approach was advanced but rejected. Instead, a large number of exceptions were drafted and a residuary discretion added.[235]
• The Federal Court and Family Court. In both these Courts, heavy reliance is placed upon affidavit material. A broad discretionary approach would create serious problems for anyone attempting to prepare an affidavit. The only practical course would appear to be for a party to include whatever hearsay it wished. Such a course, however, creates problems for the opposing party. It will have to decide whether to meet the hearsay evidence with such evidence as it has or embark upon some costly pre-trial exercise to try to have the hearsay paragraphs excluded, thereby adding to the cost, complexity and length of litigation in these courts. The Commission has been advised that there is already a problem in the Family Court of excessive amounts of hearsay material being included in affidavits.[236]
• Reliability as Threshold Issue. Debate would focus at a threshold stage on whether evidence was ‘reliable’ before it was even admitted. The court would have to receive evidence before deciding the reliability issue. Much of this evidence would itself be on collateral issues such as the reliability of those involved in keeping the records. Alternatively, judges and magistrates would be forced to admit a great deal of questionable evidence ‘subject to objection’ because a firm decision as to its admissibility could not be made safely under the discretion until all the evidence was in. This would create difficulties for the parties against whom the evidence was led.[237]
• Failure to Face up to Issues of Principle. The proposal identifies some of the issues of principle and policy that arise when one considers the admissibility of hearsay evidence, but not others. The proposal fails to face up to:
• the fundamental differences in the objectives of civil and criminal trials;
• the policy considerations that affect the tendering of evidence by the prosecution as compared to the accused;
• the qualitative difference between first hand and second hand hearsay;
• the risk of fabrication.
‘Justice’, like beauty, is in the eye of the beholder. Judicial views are likely to differ widely, even with the guidance given in the draft provision and by appeal courts. The first issue to be faced in considering hearsay proposals is whether the competing policy considerations can be organised and given priorities. The dissenting view makes no attempt to do so.[238]
• Insufficient Guidance. The trial judge or magistrate is given insufficient guidance—for example, as to the approach to be taken to the issue of unfairness to the party against whom hearsay evidence is led. In a sense a lack of opportunity to cross-examine always involves unfairness. The draft legislation merely states the principle of the desirability of a party having the opportunity to test evidence led against him but no guidance is given as to the circumstances in which this consideration may be ignored or discounted. What is needed are provisions giving guidance to the way to approach the problem when presented in civil trials and in criminals trials.[239]
• Simplicity. The issue is best resolved by a comparison of the proposals.
728. As against the approach outlined in the foregoing paragraphs, the majority proposal is criticised by Justice Kirby.
• Exclusion of Probative Evidence. Second hand hearsay which did not qualify as a commercial or government record, or fall within one of the exceptions would be excluded. First hand hearsay sought to be led by the prosecution would be excluded if it did not come within the exceptions. The proposal could result in the exclusion of evidence that had probative value especially in criminal proceedings—whether it was led by the defence or the prosecution.[240]
• Waiver Inappropriate. While it is true that the waiver provision allows for the court in civil proceedings to admit hearsay which does not comply with the rules in civil proceedings, it only applies where the evidence is not genuinely in dispute.[241]
• Complexity. Any categories and criteria approach necessarily results in a relatively detailed provisions, although this has been minimised in the draft legislation proposed which is simple when compared to existing law. Even so, their apparent detail may reduce acceptance of hearsay reform proposals. Legislators may find more acceptable a briefer and clearer statement of the policy which the law is seeking to uphold.
• Cost. With proper controls against courts being swamped by marginal hearsay evidence, hearsay reform offers potential cost savings by avoiding the necessity for calling so many witnesses. To the extent that the approach by the majority could result in the exclusion of probative evidence it does not go as far as it could in attracting these advantages.[242]
• Commercial and Government Records Exception. The exception is defined very widely. Arguments would nevertheless arise as to whether particular records leg club records, domestic records) were covered. Rather than have an exception for records containing second hand and more remote hearsay which is limited to commercial or government records (however broadly defined) and a limited residuary power to waive the rules for civil proceedings it would be better to abandon the category, and extend the rule of admissibility to all records as the dissenting proposal does.[243]
• Unrealistic. The requirement of notice of intention to lead hearsay is unrealistic. It would be ignored, as it often is apparently in the United States, even though the US Rule makes it a precondition (Rule 803(24)). The same result has occurred in England.[244]
729. A solution bearing some similarity to the US Federal Rules would be to add a broad residual discretion to the majority proposal. This would have the advantages of the United States Rules including ease of application, reasonable certainty, differentiation between the civil and criminal trial given their differing purposes, as well as a residual flexibility. In the view of Justice Kirby this would be a preferable alternative to the approach of the majority.
730. Codification of Exceptions for First-Hand Hearsay. Another member of the Commission,[245] while supporting most of the proposals relating to more remote hearsay, dissents from the firsthand hearsay proposal. Instead, he favours an attempt at codifying existing common law exceptions. His position is based principally on the view that the existing exceptions normally involve appropriate circumstantial guarantees of trustworthiness and that the majority may, especially in complex cases, render admissible large volumes of evidence which the adversary party will ordinarily have no real basis for answering or challenging. The legislation giving effect to these proposals is set out below.[246] The majority view is that such an approach is too complex and preserves to varying degrees, rules criticised as inadequate, arbitrary or anomalous and is generally too restrictive.[247] The majority proposals include safeguards to minimise the dangers of excessive evidence and difficulty in answering or challenging the evidence.[248] The proposals differ in their underlying rationale.
[1] See above, para 48-53; 64-8. For recent discussion: RW Fox, ‘Expediency and Truth Finding in the Modern Law of Evidence’, in E Campbell & L Waller (ed) Well and Truly Tried, Law Book Co, Sydney, 1982, 140, 154ff.
[2] eg noted by New South Wales Law Reform Commission, Report on the Rule of Hearsay, Govt Printer, Sydney, 1978, para 1.2.3 (NSWLRC 29); Great Britain Law Reform Committee, England and Wales, Thirteenth Report, Hearsay Evidence in Civil Proceedings, HMSO, London, 1966, para 7f; RW Baker, The Hearsay Rule, Pitman, London, 1950, 21; GF James, ‘The Role of Hearsay in a Rational Scheme of Evidence’ (1940) 34 Illinois L Rev 788, 789; Teper v R [1952] AC 480, 486 (Lord Normand); DE Harding, ‘Modifications of the Hearsay Rule’ (1971) 45 ALJ 531.
[3] See above para 564.
[4] NSWLRC 29, para 1.2.3.
[5] ibid; LRC 13; Baker, 22; James, 789, 792; Harding, 533.
[6] NSWLRC 29, para 1.2.2 citing Berkeley Peerage Case [1811] EngR 290; (1811) 4 Camp 401, 405.
[7] See above, para 586 and 618.
[8] eg R v War Pensions Entitlements Appeals Tribunals (1933) 50 CLR 228, 256; R v Aust Broadcasting Tribunal & ors; Ex parte Hardiman & ors [1980] HCA 13; (1980) 29 ALR 289.
[9] FE Booker & R Morton ‘The Hearsay Rule, The St George Plays and The Road to the Year Twenty-Fifty’ (1968-69) 44 Notre Dame Lawyer 44, 46 referring to the trial of Sir Walter Raleigh (1603) 2 How St Tr 1, 20.
[10] Above para 330 and see NSWLRC 29 para 1.2.4.
[11] NSWLRC 29 para 1.2.5; LRC 13; Baker, 20; James, 788.
[12] JH Wigmore, Treatise on the Anglo-American System of Evidence, 3rd edn, Little, Brown & Co, Boston, 1974, vol 5, para 1174; Booker & Morton, 19ff.
[13] id, 26. See also Baker 9, 15, 24.
[14] Quoted in AD Yarmey, The Psychology of Eyewitness Testimony, Free Press, Macmillan, New York, 1979, 162; DP Farrington, K Hawkins & S Lloyd-Bostock, Psychology, Law, and Legal Processes, Macmillan, London, 1979, 12; EF Loftus, Eyewitness Testimony, Harvard University Press, Cambridge Mass, 1979, 20-1; DS Greer, ‘Anything but the Truth? The Reliability of Testimony in Criminal Trials’ (1971) 11 British Journal of Criminology 131, 134, 137; see also JV Barry, ‘The Problem of Human Testimony’ (1930) 11 ALJ 314.
[15] H Munsterberg, On the Witness Stand, Clark Boardman, New York, 1908, 51-53; in 1905, Wigmore conducted a series of similar experiments at the North Western University Law School in Chicago (DS Greer, 134-5).
[16] IML Hunter, Memory, Penguin Books, Harmondsworth, 1968, 161.
[17] See above, para 420.
[18] Loftus, Eyewitness Testimony, 52ff.
[19] Hunter, 128.
[20] Hunter, 129; Loftus, Eyewitness Testimony, 53-4.
[21] The research confirms a decline in the ability to recognise with the passage of time. Recent research suggests that it may not be as rapid as that found in other memory tasks—JW Shepherd, ‘Identification After Long Delays’ in SMA Lloyd-Bostock & BR Clifford (ed) Evaluating Eyewitness Evidence, John Wiley & Sons, Chichester, 1983, 173. The percentage of false identifications was substantial at all times.
[22] See also DM Thomson, ‘Do the findings of Experimental Psychology Have any Relevance for Law Procedures?’—Paper presented at the Psychology, Psychiatry and the Law Congress, Melbourne, 1980 (unpublished).
[23] HE Burtt, Legal Psychology, Prentice Hall, New York, 1931, 86-90. Note: Tulving distinguishes between three theories of forgetting—decay, interference and cue dependent forgetting—E Tulving ‘Cue-dependent Forgetting’ (1974) 62 American Scientist 74-82.
[24] Hunter, 129.
[25] J Marshall, ‘The Unreality of Accident Litigation: A Plea for a New Approach’ (1964) 50 ABAJ, 713. 715.
[26] Loftus, Eyewitness Testimony, 82-7; R Buckhout, ‘Eyewitness Testimony (1974) 231 (no 6) Scientific American 23, 27; Marshall, 16.
[27] Loftus, Memory, 49; LS Kubie ‘Implications for Legal Procedure of the Fallibility of Human Memory’ (1959) 108 U Pa L Rev 59, 64-5.
[28] eg, Loftus, Memory, 125; and see generally Greer, 145-6.
[29] Loftus, Eyewitness Testimony, 77-8 and ch 6.
[30] Loftus, Memory, 169. See also Hunter, 20ff.
[31] See above, para 421.
[32] Loftus, Eyewitness Testimony, 901-4; LW Stern, ‘The Psychology of Testimony’ (1939) 34 Journal of Abnormal & Social Psychology 3, 8-9; Burn, 144ff; Greer, 148.
[33] Hunter. 267-8.
[34] Loftus, Memory 156, 158-9. Also warnings that, for example, a drug may make you dizzy or nauseous.
[35] EF Loftus, D Altman & R Geballe ‘Effects of Questioning Upon A Witness’ Later Recollections’ (1975) 3 Journal of Police Science and Administration 162.
[36] id, 164.
[37] The figures were: smashed, 16 Yes and 34 No; hit, 7 Yes and 43 No (EF Loftus & JC Palmer, ‘Reconstruction of Automobile Destruction: An Example of the Interaction Between Language and Memory’ (1974) 13 Journal of Verbal Learning and Verbal Behaviour 585).
[38] Loftus, Eyewitness Testimony, 55. For details see above, para 421 (experiment by Bird—text to n 37).
[39] There is some research which suggests that details relating to some of the central features of a particular event are less liable to change through false information than what might be called peripheral matters. In one experiment, misleading information altered subsequent recall of central items 47 percent of the time whereas misleading information about peripheral items altered subsequent recall 69 percent of the time. See generally Loftus, Eyewitness Testimony, 54-64.
[40] See above, para 421 (text accompanying n 39-40).
[41] See also EF Loftus: ‘Reconstructing Memory: The Incredible Eyewitness’ (1974) 8 Psychology Today 117; ‘Leading questions and the Eyewitness’ (1975) 7 Cognitive Psychology 560; Eyewitness Testimony 74-7, 94-7, 101-4; ‘The Eyewitness on Trial’ (1980) 16 (no 10) Trial 30, 31-2, 39. It should be noted that children have been found to be more suggestible than adults. Mentally defective people have also been found to be suggestible: See Loftus, Eyewitness Testimony, 159-63; Burtt, 104-15.
[42] See Loftus, Memory, generally, 77ff.
[43] Loftus, Memory 81-2; and, Eyewitness Testimony, 153-6. Extreme stress can cause total amnesia: Loftus, Memory, 82-3. For general studies see AD Baddeley ‘Selective Attention and Performance in Dangerous Environments, (1972) 63 British Journal of Psychology 537; MM Berkun, ‘Experimental Studies of Psychological Stress in Man’ (1962) 76 Psychological Monograph 1.
[44] eg a picture of an artist moving was described as ‘approaching the gateway of a new life.’ Subsequently the subject said the picture showed a van moving through a gateway. There was none: Stern, 7; Kubie, 65.
[45] Hunter, 15, 19 and 44ff.
[46] Loftus, Memory 162; and The Eyewitness on Trial, 31.
[47] ibid.
[48] JS Strahorn, ‘A Reconsideration of the Hearsay Rule Admissions’ (1937) 85 U Pa L Rev 484, 486.
[49] Note: these factors will be absent where the eyewitness records his observations in writing and the writing is produced.
[50] FC Bartlett, Remembering: A Study in Experimental and Social Psychology, Cambridge University Press, London, 1932.
[51] Cited in Hunter, 145-7.
[52] Marshall, 716.
[53] id, 715; Harding, 533.
[54] NSWLRC 29, para 1.2.6; LRC 13, para 8; Baker, 19; Harding, 537.
[55] See para 667.
[56] For example, a document produced containing statements written by B and tendered in evidence by witness A.
[57] NSWLRC 29, para 1.2.9, 63: Baker, 20; James, 791; JB Weinstein, ‘Alternatives to the Present Hearsay Rules’ (1968) 44 Fed Rules Decisions 375, 378.
[58] NSWLRC 29, para 1.2.8; Wells J, ‘Comment’ (1971) 45 ALJ 561, 563; Baker, 19; Fox, 140ff.
[59] See above, para 341-5.
[60] Baker, 21; Weinstein, 377; NSWLRC 29, para 1.2.12; Harding, 536. Another reason commonly advanced is the fear that juries will not be capable of evaluating the weight of hearsay statements. The proposition is difficult to assess. The issue has been discussed above in its relevance to evidence law generally. The position taken is that we should not assume that juries are necessarily less able than judges and magistrates to evaluate hearsay evidence and that, because jury trials in the relevant courts appear to be restricted in practice to criminal trials, the important issue is the distinction between civil and criminal trials not jury and non-jury trials (See above, para 68-79; 56-62).
[61] See above para 329-345.
[62] Compare, for example, the range of views in Harding, 559f.
[63] NSWLRC 29 para 1.1.2; American Law Institute, Model Code of Evidence. Philadelphia, 1942, 4.
[64] Justice FN Neasey, Submission (28 September 1981). Note also Booker & Morton’s comment at 45-6: ‘Those who advise the abandonment of the hearsay rule because business relies heavily on hearsay for its important decisions never go the additional step of reflecting on the accuracy batting average of such business decisions. Further, it is not enough for the legal process merely to make a ‘profit’ of more justice than injustice. Business is not the administration of justice, and the administration of justice is not a business. The stakes are different.’
[65] Wigmore cited in R v Beelen (1974) 9 SASR 163, 194-195.
[66] LRC 13, James, 796ff; Harding, 536, 559, 560. In the 19th century, text writers explained the rule as an aspect of the ‘Best Evidence’ rule—if the best evidence is not available, the next best will do: Baker, 15. Note, however, Baker challenges the correctness of this view.
[67] A distinction can also be drawn between oral hearsay and written hearsay—eg where the eyewitness puts his statement in writing, the factor of repetition is removed. The distinction, however, is not drawn. It becomes important only where it is proposed to restrict admissibility. In the proposals, this may occur in the situation where the maker of the statement is called to give evidence but the written statement was not contemporaneous. It is thought that the reasons justifying the limitation applying in that situation should apply to written statements. Further, drawing a distinction can significantly complicate proposals—see NSWLRC 29, para 1.1.8, 2.3.1 to 2.3.11.
[68] First hand hearsay evidence is evidence of representations of fact made by persons with personal knowledge of the facts stated or persons who might reasonably be supposed to have such personal knowledge. More remote hearsay evidence is described hereafter as secondhand hearsay evidence and is evidence of representations of fact made by persons who do not have personal knowledge of the facts stated.
[69] See above, 664-70.
[70] LRC 13, para 15. See also Criminal Law Revision Committee, England & Wales, Eleventh Report, Evidence (General) HMSO, London, 1972, para 225 (CLRC 11).
[71] See Lord Denning, Constantinou v Frederick Hotels Ltd [1966] 1 WLR 75, 78.
[72] See above, para 665-6.
[73] See above para 58-62; Weinstein, 381, 383, 385.
[74] The expression ‘hearsay’ is avoided in the sections. To use it is likely to encourage people to continue to apply old notions. By avoiding it, we are able to start afresh. What is or is not hearsay is misunderstood at present. The proposal spells out the type of evidence with which we are concerned and emphasises that it is the purpose for which it is to be used that is the critical question. The exceptions to the proposed exclusionary rule are drafted in such a way as to avoid them overriding other exclusionary rules—eg the opinion rules.
[75] Harding, 560. On the issue of approach see also discussion in Harding, 559ff; NSWLRC 29, para 1.3.1f.
[76] Myers v Director of Public Prosecutions [1965] AC 1001, 1022 (Lord Reid).
[77] By ‘best evidence’ is meant the only evidence a party may have available from a particular person, as well as the only evidence it may have available relevant to a particular issue or the best it has in quality. For support of a ‘best evidence’ approach see also WB Campbell, ‘Recent and Suggested Reforms in the Law of Evidence’ [1967] UWALawRw 4; (1967-8) 8 U WAL Rev 61, 72.
[78] The term is used in the Tasmanian legislation which applies to conduct as well as oral and written statements (Evidence Act 1910 s 81A(1)). The legislation includes a provision (cl 15) which lists circumstances in which a representation shall be taken to have been made in a document.
[79] See Appendix C, para 78.
[80] The fact asserted is referred to for drafting purposes as the ‘prescribed fact’. Other options considered were ‘represented fact’, ‘intentionally asserted fact’, and ‘fact in question’. They either were misleading or made the draft clumsy.
[81] MS Weinberg, ‘Implied Assertions and the Scope of the Hearsay Rule’ (1973) 9 MUL Rev, 268, 285.
[82] West’s Annotated California Codes: Evidence Code, West Publishing St Paul, 1966, vol 293, para 1200, 36; JF Falknor, ‘The ‘Hear-Say’ Rule as a ‘See-Do’ Rule: Evidence of Conduct’ (1960-1) 33 Rocky Mt L Rev 133, 137; Weinstein, 801-55.
[83] Sir Richard Eggleston, Submission, (8 September 1981); Justice Nygh Submission (7 October 1981).
[84] This is the approach recommended in the Canadian Law Reform Commission Code, Canadian Task Force Report, US Reforms, and New South Wales Law Reform Commission Report. The expression ‘previous representation’ is used. An alternative, ‘out-of-court representation’, is not used as the proposals apply to statements made in other proceedings.
[85] For example:
The Gambling Cases—was the caller intending to impliedly assert that bets are taken at the premises?
Ratten v R (1972] AC 378—was the caller intending to impliedly assert that she was in danger?
R v Hissey (1973) 6 SASR 280—was the caller intending to assert impliedly that he was the proprietor?
[86] The practice under the Federal Rules of Evidence (US) r 801—JB Weinstein & MA Berger, Weinstein’s Evidence, Matthew Bender, New York, 1979, vol 4, 801-59ff.
[87] See below, para 819.
[88] See above, para 334.
[89] See above. These accord with existing law. They, however, incorporate choices made between differences of detail (Appendix C, para 45-7).
[90] Note: the hearsay proposal will also allow evidence of relevant prior statements made when the witness’ memory of events was ‘fresh’.
[91] See above, para 131 and Appendix C para 91.
[92] US approach solution; see para 640, 643, 957.
[93] Clause 42.
[94] The English approach is similar except:
Firsthand Hearsay (for summary see R Cross, Evidence, 5th edn, Butterworths, London, 1979, 484ff)
• Maker Called—England: leave required to control proofs of witnesses discretion not guided—ALRC: must be contemporaneous and problem of witness’ proofs dealt with specifically.
• Maker not Called—England: as of right as in ALRC proposal but also where ‘beyond the seas’ (eg Calais) or can’t be expected to remember-criticised by English profession -ALRC: proposal covers those grounds by leave provisions. The issue becomes one of costs.
• Notice—England: in all cases—ALRC in two cases; maker unavailable or leave is sought not to call the maker. The original research paper proposal required notice in all cases but this was universally criticised as unnecessary, unworkable and too costly.
• Secondhand Hearsay—England: there is a ‘statement in documents forming part of a record’ provision which in effect is very similar to the ALRC proposal. There is also an elaborate computer provision similar to State legislation criticised above para 344.
The English proposals are more detailed and complex.
[95] This is a distinction that has been drawn in all legislation that has attempted to reform the law of hearsay in the past.
[96] See below, para 687-94.
[97] eg children under 18 years in the Family Court (Family Court Regulations, reg 67). As to who are ‘competent’ witnesses see above (paras 522-5; 528; cl 13, 14, 17)—and as to departure from English definition see n 94 above. For examples under the English legislation see R v Thompson (1976) 64 Cr App R 96; and [1978] NLJ 478.
[98] A limited provision has been in operation in Massachusetts since 1898. Massachusetts General Laws, West Publishing, St Paul, 1959, vol 40, 233-65 provides that statements by deceased persons made in good faith and from personal knowledge are admissible in civil proceedings.
[99] The other party is protected under the proposal by notice clause, and by the disclosure of the statement and related material by the party seeking to tender the hearsay (see cl 61 and the Evidence (Notice of Hearsay) Regulations cl 3).
[100] The clause is expressed in terms that do not prevent evidence being admitted in the circumstances there set out. This approach is followed instead of the alternative approach of a positive statement that evidence would be ‘admissible notwithstanding section. ...’ The reason for the choice of the negative approach is that it avoids any uncertainty as to whether any other exclusionary rules should override, or be overridden by, the exceptions to the proposed exclusionary rule relating to previous representations. The positive statement approach was taken by the NSWLRC and as a result it had to recommend the inclusion of the section defining the relationship between its business records proposals and other rules of evidence: NSWLRC, Report No 17, Evidence (Business Records), Govt Printer, Sydney, 1973, 40 (NSWLRC 17). See s 7B(2) of the Evidence Act 1905 (Cth) relating to business records. It renders a statement admissible under s 7B notwithstanding other stated rules of evidence and then concludes with the expression ‘but does not make admissible a statement that is otherwise inadmissible’. Some NSW practitioners have expressed concern about the uncertainty of the quoted words.
[101] See below, para 695-8 for discussion.
[102] TW Smith QC, Submission (3 September 1981).
[103] See eg, para 330 above.
[104] See Civil Evidence Act 1968 (UK) s 2, 4, 8; Micrographics Association, Submission (29 October 1981).
[105] The notice and notice of objection procedures will be discussed later para 695-8.
[106] Grounds for obtaining leave are—it is not reasonably practicable to secure the attendance of maker; undue delay or expense would be caused by calling the maker (this ground would cover the situation where it cannot reasonably be supposed that the maker would have any recollections of the matters dealt with). It can be difficult for a judge to determine whether the witness should be called before he has a full appreciation of the witness’ evidence and its significance in the case. This problem is met by enabling him to refuse leave but to reserve the question of who should bear the costs of calling the maker. English lawyers have been critical of the ‘out of the jurisdiction’ criterion in the Rules of the Supreme Court 1965 (UK) O 38 r 32 for automatic admission of first hand hearsay. As in the English proposals unreasonable objection will result in the objector paying costs.
[107] A similar requirement appears in the ACT and Tasmanian legislation concerning statements in documents.
[108] See above, para 419-21; 664-71.
[109] ‘Consistency is something which may enhance the probability that what the witness says in court is true, just as inconsistency may reduce it’ (LRC 13, para 8).
[110] London Common Law Bar Association, Submission (18 March 1981). The proposal is limited to the ‘contemporaneous’ statement. A majority of the Law Reform Committee also expressed the view that the sort of case where leave should be given was one where a person had made a ‘contemporaneous’ statement—LRC 13, para 36, 37.
[111] Hilton v The Lancashire Dynamo Nevelin Ltd [1964] 2 All ER 769.
[112] Justice FM Neasey, Submission (28 September 1981); Justice PE Nygh, Submission (7 October 1981).
[113] Evidence Act 1898 (NSW) s 1413 or its equivalent.
[114] Justice IF Sheppard, Submission (2 November 1981).
[115] Evidence Acts: (NSW) s 1413(3); (SA) s 34c(3); (Vic) s 55(4); (NT) s 2613(3).
[116] Evidence Acts: (NSW) s 1413(4); (Qld) s 92(4); (SA) s 34c(4); (Vic) s 81E; (NT) s 2613(4); Evidence Ordinance (ACT) s 35.
[117] Note however the discretion to waive the rules in civil trials, para 1025.
[118] Commercial Law Association of Australia, Submission (1 April 1982).
[119] The legislation relates to records and, therefore, to secondhand hearsay. Note, however, the other restrictions of existing legislation: Appendix C, para 94, text accompanying n 148-55; above para 342-3. Proposals are advanced for records below, para 701.
[121] id, 432-3.
[122] See above, para 331. The ‘dying declaration’ exception is not included. The proposed exceptions cover the statement made at or shortly after the event and statements in depositions taken to preserve the testimony of the person. It is thought that this is a more satisfactory way of dealing with the issues.
[123] cl 7.
[124] It is not necessary to refer to representations made ‘shortly before’ to cover cases such as Ratten, where the representation relates to the state of mind of the maker.
[125] [1971] UKPC 23; [1972] AC 378, 384. As regards statements made after the event it must be for the judge, by preliminary ruling, to satisfy himself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded. Conversely, if he considers that the statement was made by way of narrative of a detached prior event so that the speaker was so disengaged from it as to be able to construct or adapt his account, he should exclude it.
[126] See above para 420, para 666 (text accompanying fn 42-3); WM Marston, ‘Reaction-Time Symptoms of Deception’ (1920) 3 Journal of Experimental Psychology, 72; M Hutchins & D Slesinger, ‘Some Observations on the Laws of Evidence’ (1928) 28 Col L Rev 432, 438-9.
[127] See Appendix C, para 86.
[128] cl 59(2)(c).
[129] ibid.
[130] [1978] TASStRp 16; [1978] Tas SR 190 (reported on another matter).
[131] T Martin QC, Submission (3 November 1981).
[132] See para 723.
[133] See above, para 330 and R v Sparks [1964] AC 964.
[134] R v Calabria (1983) 31 SASR 423.
[135] A more limited option would be to admit evidence of statements by the victim and third party confessions made to the police. This would be an improvement but is still capable of causing injustice.
[136] See Appendix C, para 94 (text accompanying n 148-9). The Commission has been advised that the provisions are rarely if ever used.
[137] See Cross, para 10.26; recent case R v Askew [1981] Crim L Rev 398.
[138] The fact asserted is—‘that is the person whom I allege did the crime’.
[139] cf Evidence Ordinance 1971 (ACT) s 31 which excludes the tendering of documentary hearsay where the document was prepared at a time when criminal proceedings were pending or being investigated. It should be noted, however, that the Tasmanian legislation which was influenced by the ACT legislation does not contain such a provision. It does, however,
• require notice and;
• has discretions enabling the court to exclude evidence if, amongst other things, it may create ‘undue prejudice, confuse
the issues, or mislead the jury, in the case of proceeding with the jury’.
[140] NSWLRC 29.
[141] id, para 4.3.7.
[142] LRC 13, para 32.
[143] Such as those excluded in the case of Jones v Metcalfe [1967] 3 All ER 205 and evidence of prior identification which is presently admissible at common law.
[144] C Hermes, Submission (9 September 1981).
[145] See para 614.
[146] Note, as to notice required under existing law, see text accompanying n 147.
[147] Evidence Act 1910 (Tas) s 81G—recommended by the Tasmanian Law Reform Commission.
[148] The context and terms vary. The Federal Rules 1981 (US) Rule 803.24 require notice to be given if reliance is to be placed on the judicial discretion to admit hearsay evidence. The Civil Evidence Act 1968 (UK) s 8 and the Rules of the Supreme Court (UK) O 38 r 21, 22, 23 and 24 require the giving of notice and allow for counternotice and applications for directions. This applies to firsthand hearsay and secondhand hearsay in records and computer records. CLRC 11 para 236(vi), 237(iii); and, the Criminal Law and Penal Methods Reform Committee of South Australia, Third Report, Court Procedure and Evidence, Govt Printer, Adelaide, 1975, para 3.7 (SARC 3) recommended that notice should be given. The NSWLRC 29 para 1.2.12, 6.12.10, 6.12.2, 6.7.1 queried the desirability of a mandatory notice procedure and rejected the comprehensive English procedures but recommended that it be optional initially. The New Zealand Torts and General Law Reform Committee in their report on Hearsay Evidence, Govt Printer, Wellington, 1970, while rejecting the idea of notice imposed the more stringent requirement of an application to the court. It is suggested that this is placing too big and expensive an obstacle. It was not included in the legislation. The Ontario Law Reform Commission, Report on the Law of Evidence, Ministry of the Attorney-General, Toronto, 1976, 16, 17, recommended that notice be given of intention to tender evidence of statements by persons who are not available. The Report of the Federal/Provincial Task Force on Uniform Rules of Evidence, Carswell Co Ltd, Toronto, 1982, para 10.21, recommended that there be no notice requirement as part of its hearsay proposals. In relation to documents other than public documents, however, it was recommended that there be a requirement to give notice of intention to tender documents under the Act in both civil and criminal proceedings. In civil proceedings the requirement of notice is limited to certain types of documents including business records 29.6. See also Harding. 555.
[149] See Civil Evidence Act (UK) 1968 and Rules of the Supreme Court O 38 r 21-33.
[150] The view also of the Scottish Law Commission, Memorandum No 8, Draft Evidence Code, Edinburgh, 1968; Smith, 80f.
[151] The detailed proposals are contained in regulations. This will enable changes to be made expeditiously should the need arise.
[152] One commentator has argued that the notice requirement should be more stringent: 21 days; no power to dispense but power to adjourn; costs and orders to be made on the adjourned date (Queensland Law Society, Submission 16 March 1982).
[153] This issue is considered further below, para 715-8.
[154] Sir Richard Eggleston, Submission (8 September 1981). The issue is considered further in n 155.
[155] If notice were not required before committal proceedings a number of difficulties would arise—it would be necessary to include a provision enabling depositions to be admitted at the trial without further notice to the defendant, subject to satisfaction of the other requirements; should there be a provision enabling objection in relation to evidence tendered at the committal and for dispensing with proof of the conditions if objection is not taken?
[156] See below, para 640, 643; 957.
[157] See above, para 664-71, 678.
[158] See Appendix C, para 94 (text accompanying n 133-5, 153-5.
[159] On recommendation of Law Reform Commission of Tasmania, Report No 17, Report and Draft Bill Relating to the Admissibility of Computer Data in Evidence. Govt Printer, Hobart, 1978.
[160] For examples of other uses see Law Reform Commission of Western Australia Working Paper No 27, Admissibility in Evidence of Computer Records and Other Documents, Govt Printer, Perth, 1978, ch 3; NSWLRC 17 Appendix D; JWK Burnside, ‘The Legal Implications of Computers’ (1981) 55 ALJ 79; D Bender, Computer Law: Evidence and Procedure, Matthew Bender, New York, 1978, ch 3.
[161] NSWLRC 17, para 48. The requirement that a ‘qualified person’ make the statement or supply the information was another safeguard. It, however, provides only a marginal protection. It assumes the statement of the agent or employee will be more reliable. See also Vol VI No 5, Transnational Data Report, 245 on the reliance of the business on the record system as a sufficient safeguard.
[162] See Appendix C, para 94.
[163] Mehesz v Redman (1980) 26 SASR 244 and R v Weatherall (1981) 27 SASR 238.
[164] C Tapper, Computer Law, 3rd edn, Longman, London, 1983, 168.
[165] eg, The Federal Rules of Evidence (USA)—r 803(6) and 803(8).
[166] See L Johnson, ‘A Guide for the Proponent and Opponent of Computer Based Evidence’ (1979) 1 Computer Law Journal 667, 669-70. The first and last requirements are contained in Evidence Act 1910 (Tas) s 40A.
[167] See Comments, ‘A Reconsideration of the Admissibility of Computer-Generated Evidence’ (1978) 126 U Pa L Rev 425, 446.
[168] See generally NSWLRC 17, 38-46; WALRC Working Paper, 22; JH Didcott, ‘Legislation Regulating the Admissibility of Computer Generated Evidence’ Report to the Clearing Bankers Association of South Africa and to the South African Law Commission, 1980; Papers: ‘Computer Abuse’, one day seminar for senior management conducted under the auspices of Caulfield Institute of Technology (CIT) and Computer Abuse Research Bureau (CARB) on 6 December 1978, CIT Printing Services, Caulfield Vic, 1979; Research Paper: ‘A Study in Computer Abuse’, commissioned by CIT-CARB 1979, CIT Printing Services, Caulfield, Vic 1979; Survey papers: ‘Computer Abuse—Risks, Security and Control’, papers to release the findings of a National Survey of Computer Installations (27 November 1978) CIT Printing Services, Caulfield Vic, 1979; CA Pabst, ‘Detection and Prevention of Computer-Related Crime’, Paper presented for the Australian Computer Users Association, Melbourne (19 February 1981). David Bender, ‘Computer Evidence Law: Scope and Structure’ (1979) 1 Computer Law Journal 699, 713; JR Peden, ‘Proving Computer and Business Records in Court’ (1974) 6 Commercial Law Association Bulletin 31; Burnside, 83.
[169] Justice Roden has commented that ‘in the majority of cases there is no real issue with regard to such records, but rather a great deal of argument as to whether the rules of evidence ... have been complied with’: Institute of Criminology, Proceedings, Sydney Law School, The Criminal Trial on Trial, No 53, Govt Printer, Sydney, 1982.
[170] See above, para 343 (text accompanying n 102-118).
[171] No attempt is made to define the term ‘records’. While there can be arguments in a particular case about what is a ‘record’, in most cases the issue will not arise. It is not defined in existing legislation. Note R v Jones & Sullivan [1978] 2 All ER 718 (shipping documents a record—‘a history of events in some form that is not evanescent’); R v E Tirado (1974) 59 CAR 80; Bates v Nelson (1973) 6 SASR 149; O’Donnel v Dakin [1966] TASStRp 12; [1966] Tas SR 87; H v Schering Chemicals Ltd [1983] 1 All ER 849.
[172] See definition of ‘business’ cl 3(1). It has been suggested that the use of the term ‘business’ to include non-commercial activities is inappropriate. We do, however, speak of the business of government, the courts and all sorts of institutions not engaged in commercial enterprises. The proposal would enable returns filed with government bodies and kept by them for record purposes to be admitted: R v Halpin [1975] 2 All ER 1125. It is assumed that it would include records which have been tampered with fraudulently by an employee R v Mitchell [1971] VicRp 5; [1971] VR, 46 59. See A Kelman Submission (26 October 1981).
[173] See above, para 343 (text accompanying n 114, 115).
[174] NSWLRC 17, 46.
[175] The proposal would not prevent such statements being used for a non-hearsay purpose—eg solicitor’s file notes of conversations to prove that something was said and what was said should this be relevant in interlocutory applications, professional negligence cases etc. In other cases the firsthand hearsay proposal should suffice.
[176] That the statement be made by a qualified person or be reproduced or derived from information in statements made by a qualified person or derived from one or more devices. The requirement was one of the safeguards introduced by the Commonwealth legislation. See NSWLRC 17 para 48.
[177] See above, para 343 (text accompanying n 114-5).
[178] Note the powers to order production of records, copies, sound recordings etc in specific instances—s 7E(2) and s 7K(3) and (4); again no guidance is given.
[179] The Commission has received criticisms of this situation from NSW practitioners.
[180] See above, para 343.
[181] See below, para 715-8.
[182] See s 6, Commercial Causes Act (903-1957(NSW); s 82 Supreme Court Act 1970(NSW) and s 69 District Court Act 1973(NSW); and the Federal Court Rules O 33 r 3.
[183] eg should the officers of a ship be called where log book admitted? cf Associated Pulp and Paper Mills Ltd v The Ship ‘Mareike’, Sheppard J, unreported, NSW Admiralty Court (19 September 1979).
[184] s 7F(1).
[185] The matters are (where relevant) the contemporaneity of the statement, existence of incentives to conceal or misrepresent, the reliability of any device involved or means of reproduction or derivation and the existence of any incentive to omit information. Will a court, for example, think it appropriate to consider whether the statement is self-serving (cf NSWLRC 17, 47-8).
[186] See below, para 979-93.
[187] See above, para 343 (text accompanying n 107-13).
[188] See below, para 1015-20.
[189] Record of business, for purpose of business etc.
[190] NSWLRC 29, s 79(2), (3)(4) and para 4.7.1. In England, the common law rules have been preserved: Civil Evidence Act 1968, s 9. Somewhat similar extensions have been enacted in the Federal Rules of Evidence (US) r 803 (19) and (20) and 804(b)(4).
[191] JA Gobbo, D Byrne & JD Heydon, Cross on Evidence, 2nd edn, Butterworths, Sydney. 1979, para 6.26.
[192] See also NSWLRC 29, para 4.7.8 and cases cited.
[193] South Australia (s 53), Queensland (s 75), Western Australia (s 82), Northern Territory (s 50), Tasmania (s 41), and Christmas and the Cocos (Keeling) Islands. The legislation enables the message to be used as evidence that it was duly delivered to the person named provided that evidence is given that the message was sent to or delivered at a telegraph office and that the appropriate fees for transmission were paid. It deals with the problem of what inferences can be drawn from such evidence—not a hearsay problem. This is more appropriately dealt with in the context of rules facilitating the proof of matters.
[194] It is intended that the proposal should include messages such as telex messages and documents transmitted electronically by telefacsimile devices. It makes notice a condition precedent of admissibility. This is too onerous and unnecessary.
[195] eg Evidence Acts: (Tas) s 81Q; (SA) s 45; (NT) s 35.
[196] The proposal does not specifically enable a car log book to be admitted in evidence to prove engine numbers etc: See R v Sealby [1963] 1 All ER 701. In any event, the records on which they are based will be admissible. Such evidence may be admissible under the proposals for the proof of the contents of documents depending on the circumstances—as secondary evidence.
[197] cl 63.
[198] Derived from the Evidence Act 1905 (Cth) s 7J(1).
[199] The specific computer legislation enables proof to be given by certificate. The banker’s books and books of account legislation enable proof to be given by affidavit. Legislation dealing with public documents generally provides for sealed or certified documents to be tendered (often without proof of the signature or seal). Under the proposal an affidavit would apply to all such records and documents. It also differs from Bankers Books provisions (see Appendix C, para 94—text accompanying n 136-8) which prevent the deponent of the affidavit being called where the bank is not a party unless the court orders. Generally ‘special cause’ is required. Representations have been made to retain this approach: Australian Bankers Association, Submission (4 January 1982); but it is thought that parties are not likely to require the attendance of the deponent unless for good reason.
[200] See above, para 343.
[201] Less obvious matters are: whether some aspects of the statement are confirmed by other witnesses, or things discovered as a result; the inherent probability or improbability of what is asserted; whether the persons had strong motives or inducements to tell the truth etc. For criticisms of existing provisions see above, para 343.
[202] Court of Petty Sessions (Civil Jurisdiction) Ordinance 1982 (ACT) s 160. Note conflicting authority on whether ‘document’ includes tape recording (see Appendix C). Note: in other Territories the ACT law applies in both the Supreme Courts and Courts of Petty Sessions.
• Norfolk Island
• Christmas Island. The Supreme Court Ordinance prior to 1958 and ACT Petty Sessions Ordinance (1930) (no discovery).
• Cocos (Keeling) Island. Supreme Court Ordinance 1955. No civil jurisdiction in Court of Petty Sessions.
Note, also, the possibility of using rules such as Federal Court Rules O 17 r 1 to test a computer system; see comments Tapper (1979) 176-7.
[203] Bender, Computer Law: Evidence and Procedure, ch 9; A Kelman & R Sizer, ‘The Computer in Court; Manual for Complex Litigation—Sections on Computer-Related Evidence’ (1979) 1 Computer Law Journal 725; PN Singer, ‘Proposed Changes to the Federal Rules of Evidence as Applied to Computer-Generated Evidence’ (1979) 7 Rutgers Journal of Computers, Technology and the Law 157, 163; J Becker, The Investigation of Computer Crime, Govt Printing Office, Washington, 1980; US Dept of Justice, Bureau of Justice Statistics, Computer Crime: Expert Witness Manual, Govt Printing Office, Washington, 1981; Tapper, 172, 228-229.
[204] eg agent in possession—Murray v Walter (1839) Cr & PK 114, 125.
[205] Compagnie Financiere v The Peruvian Guano Company [1883] UKLawRpKQB 95; (1882) 11 QBD 55, 62.
[206] Note the development of a ‘public interest’ privilege—TPC v Queensland Aggregates (1981) ATPR 40-233.
[207] Alterskye v Scott [1948] 1 All ER 469; Distillers Co (Biochemicals) Ltd v Times Newspapers Ltd [1975] 1 All ER 41; [1974] 3 WLR 728. See also Re Birmingham Banking Co, ex parte Brinsley (1866) 36 LJ Ch 150; Chantry Martin (a firm) v Martin [1953] 2 QB 286, 294; Schneider v Leigh [1955] 2 All ER 173; Harman v Home Office [1982] 2 WLR 338; Registrar to the Supreme Court Equity Division v McPherson and Others [1980] 1 NSWLR 688; Practice Note: (1981) 44 ALJ 160.
[208] Kelman & Sizer, 725, 736.
[209] R v Charlton [1972] VicRp 90; [1972] VR 758; Richardson v R [1974] HCA 19; (1976) 131 CLR 116; R v Lucas [1973] VicRp 68; [1973] VR 693, 705.
[210] Working Paper No 4, Criminal Procedure—Discovery, Information Canada, Ottawa, 1974, 19 (WP 4). For comment on the Paper, see J Cassells, J Sopinka & TR Swabey, ‘Working Paper 4: Criminal Procedure: Discovery’ (1975) 7 Ottawa L Rev 281, 282, 288; see also MW Doyle, ‘Criminal Discovery in New Zealand’ (1976) 7 NZ UL Rev 23.
[211] eg Van Beelen case and McLeod-Lindsay case in G Hawkins, Beyond Reasonable Doubt, ABC, Sydney, 1977; see also Lawless v R [1979] HCA 49; (1979) 53 ALJR 733. In New Zealand see discussion of the Thomas case in MD Malloy, ‘The Logic of Exploration’ [1979] NZLJ 119; and NJ Carter, ‘Policing the Prosecution’ [1979] NZLJ 431.
[212] The Law Reform Commission of Canada conducted a survey of prosecutors and concluded that the discretion cannot be counted on to provide a system of discovery.
[213] Richardson v R [1974] HCA 19; (1976) 131 CLR 116, 120-2; In re Van Beelen (1974) 9 SASR 163, 250; Lawless v R [1979] HCA 49; (1979) 53 ALJR 733, 740; Note WB Lane, ‘Prosecutors: Non-Disclosure of Exculputory Evidence’ (1981) 5 Crim LJ 251, 265 argues for a distinction between the prosecution not calling a disclosed witness and non-disclosure.
[214] See MW Doyle, ‘Criminal Discovery in New Zealand’ (1976) 7 NZUL Rev, 23—citing Fletcher, ‘Pre-Trial Discovery in State Criminal Cases’ (1960) 12 Stan L Rev, 293; Carber, ‘The Growth of Criminal Discovery’ (1962) 1 Crim LQ 3; RJ Traynor, ‘Ground Lost and Found in Criminal Discovery’ (1964) 39 NYU L Rev, 228. Arguments against, see Doyle, 36:
• giving the accused the opportunity to meet the prosecution case with perjured evidence and to engage in bribing and intimidating witnesses. It is not suggested, however, that disclosure in committal proceedings causes more perjured evidence or tampering than occurs in trials without committal proceedings;
• creating an imbalance, discovery not being available against the accused. It may be argued however that prosecution resources create their own imbalance which discovery does little to affect;
• disclosing confidential sources which would have an adverse affect on law enforcement. This however, may warrant a privilege not total non-disclosure.
[215] Royal Commission on Criminal Procedure, England and Wales, Report, HMSO, London, 1981, para 8.13-8.17, 8.28 (RCCP); SARC 3, para 2.2.1 recommended disclosure in summary proceedings of material on which the prosecution would rely when requested by the defendant but otherwise relied upon committal proceedings, pre-trial conferences and the prosecutor’s duty.
[216] Exception in some jurisdictions: notice of alibi.
[217] LRC Canada WP 4, 29, 50, recommended against discovery. It commented that prosecutors agreed that the Crown was rarely disadvantaged by not having discovery of the accused. It was generally aware of possible defences; RCCP, Report, para 8.20 recommended against general disclosure by the defence (except notice of alibi, expert testimony) SARC 3, para 2.2.1 recommended disclosure of exhibits and expert reports if the prosecution establishes prima facie case.
[218] Justice, Discovery in Aid of the Evidence Act, British Section of the International Commission of Jurists, London.
[219] ibid. The Federal Rules (US) proposals went some way towards a similar position in:
• providing that privilege in respect of a confidential matter or communication was waived if a significant part of it was disclosed voluntarily (Standard 511)
• allowing the ‘work product’ rules to continue. These enable a party to have access to the materials gathered by another party where he shows ‘substantial need’ for them in the preparation of his case and undue hardship in obtaining the materials by other means. They also enable patties and witnesses to obtain copies of prior statements: Rules of Civil Procedures for the United States District Courts, US Government Printing Office, Washington, 1981, R 26(b)3-14: Rules of Criminal Procedure for the United States District Courts, US Government Printing Office, Washington, 1979. R 16(c); JB Weinstein, MA Berger, Weinstein’s Evidence, Matthew Bender, New York, 1982, vol 2, 501-38.
It argued: the production in evidence of any statement made by or taken from a witness is itself a voluntary waiver of legal professional privilege, and that the proposal is merely that if a patty chooses to waive his privilege to this extent he should be compelled to waive it in toto so far as it covers communications to and from the witness in question.
[220] The general power to order production of documents should not override any applicable privileges: Rules of Civil Procedure for The United States District Courts, 45 Govt Printing Office, 1981 r 26(b)3e4: Rules of Criminal Procedure for The United States District Courts, US Govt Printing Office, Washington, 1979, r 16(c).
[221] The clause is a modification of this section—Evidence Act 1905 (Cth) s 7G. In drafting the clause, s 7G(4) has been omitted. This section provides that ‘evidence is not admissible of any matter of which, if the person has been called as a witness and denied the matter in cross-examination, evidence would not be admissible if it had been adduced by the cross-examining party’. It could prevent the operation of the preceding sub-sections. It at the very least narrows the operation of the provision reducing the value of it as a safeguard for the party against whom the evidence is led.
[222] This is developed from Evidence Act 1905 (Cth) s 7H business records provisions.
[223] See above, para 343 (text accompanying n 116-8).
[224] Justice MD Kirby is the former Chairman and was a member of the Evidence Division at the time the final policy decisions were made.
[225] Notes to the Draft Bill, Note 4.
[226] The majority proposal will cover most situations and provides for waiver of the hearsay rules in civil but not criminal proceedings. Criteria are listed according to which the waiver decision is to be made.
[227] See above, para 49-53, 64-7.
[228] Justice Kirby comments that this consideration is often a hurdle for important legal reforms and the one proposed here has the merit of simplicity which could help, in time, towards its successful introduction.
228a. Justice Kirby comments that appellate review could reduce the areas of uncertainty and disparity. The reformer must balance this consideration against the introduction of a flexible approach formulated in terms of underlying policy and principle.
[229] Justice Kirby comments that, on the other hand, judges in administering the new approach would be specifically directed to consider the costs and length of the trial. Costs are involved in complying with the present rules—and incurred when important evidence cannot be proved because it fails to meet one of the many detailed requirements laid down by existing law.
[230] Justice Kirby comments that the judicial officer would have control of the proceedings. The spectre of floods—always raised against important reforms in the law—is simply not borne out by the experience of those many countries which manage their litigation perfectly well without the need for the hearsay rule and its multitude of exceptions.
[231] Justice Kirby comments that this argument again takes the exception and presents it as a spectre to frighten off rational reform. In the view of the dissenting member there is more than enough power in judicial officers to prevent abuse of this kind.
[232] See above, para 331, 341-5; Appendix C, para 79-94.
[233] See above, para 682-712. Justice Kirby comments that the proposal could result in the admission of some evidence excluded by the majority approach where it is considered to have passed the criteria proposed. The danger of the majority approach is always that of the exception not contemplated by the detailed legislative provision.
[234] Justice Kirby comments that appeal courts have well established procedures in Australia for leave in interlocutory appeals and is of the view that these should be adequate to meet the problem of appellate review or pre trial decisions.
[235] The United States residual discretion signals, in the view of Justice Kirby, the ultimate recognition of the unsatisfying and even dangerous features of a highly detailed approach with its wilderness of instances which are in truth nothing more than instances of a general rule. On this view it is preferable to state the general rule which binds the exceptions together.
[236] In the view of Justice Kirby, this problem can be addressed by the proper exercise by the judges of their powers of supervision over lawyers.
[237] Justice Kirby concedes that this is the most important practical objection to the alternative approach. However, in most cases it would create no problem as reliability or otherwise would be clear. The problem presented has to be weighed against the problems and disadvantages inherent in a rules approach. In time, it is expected that the economic and efficient approach to this difficulty would be worked out in the courts.
[238] This criticism too, in the view of Justice Kirby, exaggerates the difficulties. Moreover it is affected by the excessive attention of the majority approach to the need for certainty. The choice is between an approach which is necessarily more predictable in its results but runs the risk of overlooking particular cases of reliable hearsay or a discretionary approach which admittedly imports judicial discretion but provides checks on its exercise and operates by reference to clearly stated and readily understood criteria that are rational and accord with notions of justice and due process that laymen as well as lawyers can readily understand.
[239] To this criticism Justice Kirby points out that the common law in other areas has proved a flexible instrument for applying general principles to the infinite variety of fact situations. So it would be here. More detailed working out of the provision is unnecessary because a clear majority of the Commission favours a different approach.
[240] The reasons for this approach are considered above—including the special considerations that apply in criminal trials. The majority does not consider that its proposal will exclude probative evidence to any great extent and where it may do so, it does so for good reason.
[241] The majority view is that the right balance has been struck. The power also extends to the situation where the application of the rules would cause or involve unnecessary expense or delay.
[242] As to the exclusion of probative evidence see above, para 689.
[243] cf majority comments above on practical disadvantages above, para 727.
[244] In the majority proposal notice is not required in all cases—as in the English legislation—but only where it is alleged that the maker of the representation is unavailable or, in civil trials, should not be called. If the notice procedure is ignored, it still serves the very important function of giving the court flexible control over the situation. Thus, to ignore it does not defeat it.
[245] Mr Theo Simos QC.
[246] Notes to the Draft Bill, Note 5.
[247] As to the criticisms made of the existing law—see above, para 329-345; Appendix C, para 77-94.
[248] Notice where maker unavailable or (in civil trials) not to be called; limiting representations where the maker is called to give evidence to those made when the facts asserted were fresh in the memory; power to direct that documents and witnesses be produced; disclosure of related representations where maker unavailable or not to be called.
731. Original Justification. In the 18th century, English courts ruled that witnesses must relate facts and not opinions.[1] By ‘opinion’, however, the courts meant guesses and conjecture which were not based on personal knowledge. This was no new principle. It was a recognition of the then well established principle of ‘testimonial qualifications that the witness to be competent ... must have personal observation’.[2] Wigmore argues that the next significant development was the use of skilled witnesses who had no personal knowledge of the facts in dispute. The view was taken that ‘the jury needed such help ... and must have it ...’.[3] A justification produced was that they had personal knowledge of the facts known to experts such as themselves. By the end of the eighteenth century, this exception to the personal knowledge requirement had been established. In the nineteenth century, the justification for a rule controlling opinion evidence changed:
The later and changed theory is that wherever inferences and conclusions can be drawn by the jury as well as by the witness, the witness is superfluous, and that thus an expert’s opinion is received because and whenever his skill is greater than the jury’s, while a lay opinion is received because and whenever his facts cannot be so told as to make the jury as able as he to draw the inference. The old objection is a matter of testimonial qualifications, requiring personal observation; the modern one rests on considerations of policy as to the superfluity of the testimony.[4]
732. Later Justifications. Other justifications include:
• Confusion and Misestimation. Wigmore argues:[5]
It simply endeavours to save time and avoid confusing testimony by telling the witness: ‘The tribunal is in possession of the same materials of information on this subject as yourself; thus, as you can add nothing to our materials for judgment, your further testimony is unnecessary, and merely cumbers the proceedings’. It is this living principle which is (or ought to be) applied in each instance; nothing more definite than this is the test involved by the principle.
• Usurping the Function of the Jury. In decisions ruling that either lay or expert opinion evidence was inadmissible as being, for example, a matter of common knowledge or on an ultimate issue, it is often stated that to admit the evidence would be to ‘usurp the function of the jury’:
the special power of expert opinion in a court lies in the circumstance that if the tribunal accepts the validity of that opinion, then the expert has in fact taken the place of the tribunal, for it is the expert and not the tribunal who has, in reality, determined the particular matter in issue.[6]
The validity of this rationale has already been questioned;[7] at its highest it can only be justified on the basis that it is restating the justification of avoiding the admission of superfluous testimony.
733. Relevance of Traditional Rationale. The concerns about wasting time, confusion and misestimation are clearly proper matters to take into account in formulating proposals. They would justify some departure from the primary consideration that the court should have all relevant evidence before it. Clearly the court is not assisted by idle speculation. Nor generally is it helped by evidence from a witness about the content of the law or its effect. It will not be assisted by opinion evidence in a field of expertise by someone who has no expertise in that field.
734. Lay Opinion and the Fact-finding Process. In the area of lay opinion evidence, the fact-finding task of the court is not assisted by the haphazard arbitrary exclusion of opinion evidence. It is important that witnesses be able to present their testimony in such a way that they are able to articulate their thoughts clearly and rationally, but at the same time to be of maximal assistance to the court. The natural flow of speech and of thought processes however, can be detrimentally interrupted by the demand that testimony be expressed in the form of facts, not opinions.[8] Not only is the distinction difficult of comprehension especially for lay witnesses, but it can also be used as an obstructive device by counsel to restrain a witness from giving evidence that would otherwise be of assistance to the tribunal of fact. In addition, the expression of inferences and opinions by lay witnesses when they are in a position to contribute informed ideas not in the traditional form of facts can assist the court considerably.[9]
735. Expert Opinion and the Fact-finding Process. Expert evidence can be difficult to evaluate being of a specialised and technical nature. In addition, the adversary trial system creates pressures which can result in expert testimony being distorted. Thus the accuracy of the fact-finding process can be adversely affected.
• Evaluation of Evidence.[10] The problem of evaluation of expert testimony is vividly demonstrated by the Dreyfus case. In 1899, Alfred Dreyfus, a Captain in the French General Staff, was tried for allegedly passing secret documents to the enemy. The documents were supposedly written by Dreyfus in his own handwriting and the court attempted to prove through a statistical technique called frequency analysis the number of times the formulation of the letters in the word ‘interest’ matched the shape and style of writing of these letters made by Dreyfus in other correspondence. On the basis of this statistical evidence and a good deal of expert assistance that was rendered to the court at its request Dreyfus was found guilty. A number of years later a panel of experts was appointed to examine the evidence of the case and came to the conclusion that the mathematics upon which the court’s decision was based were invalid. In addition, the court and counsel for Dreyfus told the panel that they did not understand a word of the expert witnesses’ testimony regarding mathematical probability and admitted that they had been overly impressed by the appearance of scientific rigour and accuracy.[11] Where the evidence led by one side emanates from an expert and is impressively presented the tribunal may be overawed by the stature and the articulacy of the witness.
A further problem arises where there is a battle of experts, as often happens. The tribunal of fact can be in an extremely difficult position when asked to resolve it. It will generally possess neither the experience nor the expertise to adjudicate in a meaningful sense and the danger is that its members may be influenced by extraneous factors such as, for example, the stature, advocacy or verbal skills of the expert. On the other hand, there can be little doubt that where experts disagree, there is a strong tendency for the trier of fact to feel that a reasonable doubt has been established and so, in the case of a criminal trial, to acquit the defendant. To acquit for this reason alone, however, would be wrong.[12]
The very nature of the evidence provided by experts can be esoteric and difficult to assess or test adequately by cross-examination. At the same time, it is frequently of crucial probative value and must not, from a fact-finding perspective, be withheld from the court unless, in the particular case, it is clearly more prejudicial than probative.
• Distorting Factors. A number of factors may render expert testimony inaccurate.
(a) Danger of Partisanship.[13] The selection and remuneration of experts by the party that calls them creates a relationship between them—one in which the expert may identify with the party. This process is encouraged by the adversary nature of proceedings and the difference between the non-threatening nature of examination-in-chief and the more hostile nature of cross-examination. This may result in tentative suggestions on the part of the expert turning into purportedly considered conclusions. There is particular danger in this situation given that the expert evidence may be accorded particular respect.[14]
There have been occasions when prominent forensic scientists have openly admitted to believing their role to be associated with that of the patty who called them as witnesses. For example, in 1977 the Home Office in England suspended one of its top forensic scientists who had been in its employment for over twenty five years and was at the time of his suspension Treasurer of the Forensic Sciences Society of Great Britain. After two cases in which the expert, Dr Clift, was involved were reversed, the Home Office asked another forensic scientist, Margaret Pereira, to investigate.[15] What is important for present purposes is Dr Clift’s perception of his allegiances. He is represented as having said:
Police officers are our customers and it is the view of some senior police officers that our job is to find evidence which may contribute to police enquiries. The CJ Act statement merely demands that what is said is true.[16]
Pereira concludes:
In many ways Dr Clift’s attitudes reflect those of the very early forensic scientists who saw their function as one of ‘helping the police’ and not as I believe a modern forensic scientist would see it (a) to assist police in their investigations and (b) to assist in the cause of justice in the courts. He does not seem to have turned his mind to the possibilities of his evidence incriminating innocent people, trusting that the police were always right in their initial suspicions.[17]
While the example of Dr Clift is one of extreme partisanship, the dangers of less overt bias are nonetheless real and often noted.[18]
(b) Selection of Experts. Where expert evidence is required, the primary concern of each party is to obtain favourable expert testimony. Reports may be obtained from a great variety of experts willing to co-operate and the experts that will help the most will be chosen to give evidence.[19] Sir George Jessel in Thorn v Worthing Skating Rink Co[20] commented:
A man may go, and does sometimes, to half-a-dozen experts. I have known it in cases of valuation within my own experience at the Bar. He takes their honest opinions, he finds three in his favour and three against him; he says to the three in his favour, will you be kind enough to give evidence? and he pays the three against him their fees and leaves them alone; the other side does the same. It may not be three out of six, it may be three out of fifty. I was told in one case, where a person wanted a certain thing done, that they went to 68 people before they found one.
Weinreb has commented:
In one way or another every aspect of the trial is distorted by the presentation of evidence exclusively through the prisms of the prosecution and the defence. The substitution of tactics for principle pervades the trial.[21]
(c) Entrenching and Distorting Pressures. The parties will attack the evidence of the expert witness called by opposing parties—for example, by downplaying their qualifications, detracting from the bona fides of their investigations and deploying their own words against them in cross-examination. This will tend to entrench opinions already expressed in examination-in-chief. This is especially the case with forensic experts, whose reputations and prestige[22] can be weakened or strengthened by the effectiveness with which they are perceived to have delivered their testimony. In addition, the methods of questioning and selective examination by both parties do not always afford the expert the opportunity to present his evidence in a well-rounded and fair-minded fashion. Rather, it can often lead to a distorted representation of what, given the chance, the expert would desire to say in respect of the research that he has undertaken.[23]
The combination of such factors has led the courts to be extremely wary of expert testimony in any form and even to impute base motives to expert witnesses.[24]
736. These difficulties have their origins in our adversary system of trial. Solutions may lie in changes to the trial system—a question outside the terms of reference. So far as the laws of evidence are concerned, the difficulties warrant continued control of expert opinion testimony—for example, over the qualification of the expert.
737. Conclusion. In formulating legislation, the above factors must be taken into account and balanced. An exclusionary rule should be retained. But there is a very real need for genuine reform in the area of law controlling opinion evidence.
738. Exclusionary Rule. It being proposed to maintain an exclusionary rule, the proposals must draw a distinction between evidence of fact and evidence of opinion. As has been pointed out, a major criticism of the law at present is the artificiality of this distinction.[25] Attention has been drawn to the presence of a continuum between evidence in the form of fact and evidence in the form of opinion, the one at times passing imperceptibly into the other. The distinction, however, can serve a useful purpose and is, in the end, unavoidable. Evidence at the extreme of the continuum, which most would be prepared to classify as evidence of opinion, will generally be open to more dispute than material at the opposite end, which most would classify as evidence of fact. For accuracy of fact finding and to minimise confusion and time-wasting, therefore, it is necessary to exercise some control upon material at the opinion end of the continuum. In addition, the distinction must be drawn if rules are to be advanced to control the admission of expert opinion evidence. The approach which has been adopted is to continue to use the fact/opinion distinction for the purposes of drafting an exclusionary rule but to minimise the difficulties flowing from its usage. This is achieved in part by making the primary question for the court the question of whether the evidence, be it ‘fact’ or ‘opinion’, is based on the witness’ personal perception.[26] If it is, lay opinion evidence (subject to other requirements) may be admissible. If it is not, the evidence of opinion will not be admissible unless it is expert testimony. This, generally, is in line with the approach of the law reform bodies in England, the United States, Scotland and South Australia.[27]
739. Exception—Lay Opinion Evidence. At present lay opinion evidence is conventionally[28] said to be inadmissible unless it fits within an apparently anomalous miscellany of ‘exceptions’. The main factors that these share are that they can be said to be shorthand expressions of fact[29] based on the witness’ perceptions and that it has been seen by the courts as convenient to allow the expression of opinion in their case rather than to insist upon a lengthy, and possibly not particularly helpful, recitation of facts. The ultimate criterion for admission of opinion evidence should be whether it will assist the trier of fact in understanding the testimony, or determining a fact in issue. To be of the requisite assistance, the lay opinion evidence must be based on the witness’ personal perception of a matter or event. Against the admission of such evidence must be balanced time and cost factors, the danger of the evidence misleading or confusing the tribunal of fact and the possibility of it being more prejudicial than probative. Thus, it is proposed to admit lay opinion testimony where it is based upon the personal perception of the witness and it is necessary to obtain an adequate account of his perceptions.[30]
740. The proposal, therefore, revives the original rationale based on the distinction between opinion based on the witness’ perception and mere uninformed speculation. Consideration was given to including the express requirement that the opinion be rationally based. Arguably, however, this is the way the clause would be interpreted. If it is not, the second requirement—that it be necessary to obtain an adequate account of the witness’ perception of the relevant event—should provide sufficient protection. It has been suggested to the Commission that the Canadian Task Force provision be followed—that the test be that the giving of evidence of opinion ‘be helpful either to the eyewitness in giving a clear statement or to the trier of fact in determining an issue’. It is thought, though, that the standard of ‘helpfulness’ is too low. It is important that witnesses give evidence as closely connected to their original perception as is possible to minimise inaccuracy and encourage honesty. In addition, the term ‘helpful’ sets such a low threshold and is so flexible that it would be impossible for appellate courts to exercise any real control over the exercise of the power.
741. Exception—Expert Opinion Evidence. A number of problems are posed by the present methods of reception of expert evidence. Some of these are caused by the actual rules of evidence, which are standing in the way of effective testimony by experts, and others have their origin in the adversarial system, whose priorities may not always be those of witnesses appearing in court. The terms of the present reference limit the investigation of the Law Reform Commission to ‘a comprehensive review of the law of evidence’.[31] This precludes an extensive discussion of the merits and demerits of the adversary system and of the law of practice and procedure, except in so far as they are incidental to evidentiary questions. While many of the underlying causes of problems may lie at the heart of the adversary system, the problems warrant the maintenance of controls over the admissibility of such evidence. In particular, the requirement of appropriate qualifications should be maintained.
742. A debate has, however, emerged in Australia, alone of the common law countries, as to the acceptable means by which an expert may be appropriately qualified.[32] Decisions of Chief Justice Barwick and Justices Menzies, Taylor and Kitto exhibit a marked preference for the necessity of a previous course of study before a witness can be accounted an expert, while the English and Dixonian approach looks to the substance of the expertise and is not concerned whether it was acquired by experience or academically.[33] A clear statement would serve the useful purpose of clarification. An expert should be defined as a person who ‘has special knowledge, skill, experience or training about a matter’, and that he generally be able to give opinion evidence that utilises his specialised knowledge, skill, experience or training.[34] Experience can be a sounder basis for opinion than study. Not to include special experience as a qualification would keep valuable evidence from the courts.
743. Abrogation of other Grounds of Exclusion. The traditional means by which courts have controlled the testimony of experts have been to question whether the expert was testifying upon a matter of common knowledge; whether the matter about which he was testifying was a field of expertise; and whether the expert was testifying on an ultimate issue.
• Common Knowledge. The courts have consistently excluded expert testimony on matters of common knowledge. This has proved unsatisfactory.[35] Difficulty has been experienced in defining the boundaries of the concept. It is unclear whether the approach should be that the mere existence of an ‘area of common knowledge’ is sufficient to preclude expert opinions, or whether the approach should be to ask if the tribunal of fact can come to an informed and ‘competent’ decision without the reception of the expert opinions. Excluding evidence because the ‘ordinary man’ has some knowledge about the area is entirely fallacious and ought not to be part of evidence law. Clearly, if the matter about which the expert is seeking to testify is patent and known to all, the court’s time would be wasted by its presentation. A relevance discretion is quite capable of excluding such material.[36] An expert, however, may still be of assistance to the court even in an area about which most people know something. An expert purports to have ‘special’ skill and knowledge about something over and above that of the ordinary man.[37] It is proposed, therefore, to omit the common knowledge requirement and to rely upon the relevance provisions, the discretions to ensure that unnecessary evidence is not admitted. The effect of this will be, for example, that testimony by psychiatrists and psychologists on the behaviour of the ‘normal’ man37 will, so long as it is relevant, be prima facie admissible. The courts will not then be forced into the artificial and unsatisfactory situation of having to determine concepts of normalcy with which even many mental health professionals are uneasy.[38] In addition, relevant testimony upon the dangers of identification evidence under some circumstances and even on child development[39] will be prima facie admissible subject to the application of the exclusionary discretions. It is considered that while this will render admissible some additional evidence, the number of experts appearing before the courts and the testimony that they give will not produce serious time/cost problems. The change will give parties the opportunity to present relevant evidence to the courts. It will enable the accused to defend his case using all relevant material. This will enhance the appearance of doing justice and the credibility of the trial system. As the time/cost changes should not be of major proportions and the benefits substantial, it is thought that the changes proposed are warranted.
• Field of Expertise. Reference has been made to two recent cases[40] that have suggested that the expert must be able to point to a relevant accepted ‘field of expertise’ and the use of accepted theories and techniques. Quite what constitutes such a field remains a matter for speculation. There are major difficulties in implementing such a test. In the United States, the test known as the Frye[41] test was adopted in many States.[42] More recently, however, it has been assailed from many quarters as being ‘arbitrary’ and ‘impossible to implement’ because of the difficulties of defining the actual ‘field’ in each instance and then of determining the existence of accepted theories and techniques. It also can exclude evidence which the courts should have before them.[43]
It is proposed, therefore, not to introduce the ‘field of expertise’ test. There will be available the general discretion to exclude evidence when it might be more prejudicial than probative, or tend to mislead or confuse the tribunal of fact. This could be used to exclude evidence that has not sufficiently emerged from the experimental to the demonstrable.
• Ultimate Issues. It is conventionally said that testimony may not be given upon the ultimate issue or possibly upon ultimate issues generally. Quite what constitute ultimate issues, however, has not as yet been authoritatively ruled upon. Despite this the courts have continued to try to apply the ultimate issue rule.[44] It has been suggested that the true analysis of the rule is that it prohibits a witness applying any kind of a ‘legal standard’ to the facts, something which it is suggested is the function of the jury after instruction from the judge.[45] The major criticisms that may be levelled against the traditional formulation of the rule are—uncertainty as to its present formulation; the arbitrariness of its implementation; and its conceptual nonsensicality.[46]
The popular justification for the rule, that it prevented the expert or lay witness from usurping the function of the jury, is misconceived.[47] There is no usurpation. The jury, in any event will be told that they must assess the evidence, lay and expert. It is upon the most important issues that expert assistance can be crucial and the courts need to be able to receive it. It is necessary to give both sides, be the proceedings criminal or civil, full opportunities to call witnesses to give relevant evidence. It is proposed, as by the United States Federal Rules[48] of Evidence and recommendations of Law Reform Commissions in Canada,[49] Scotland[50] and South Australia,[51] that the ultimate issue rule be abolished.
This change should not significantly increase the volume of testimony received by the courts because it has become common practice de facto to allow evidence to be given upon ultimate issues. It will, however, serve to make the law more coherent and to remove a rule which has the potential to, and now and again does, cause unnecessary confusion and hardship.
The issue remains, however, whether any other restrictions should be imposed. It can be argued that little is to be gained by permitting witnesses, whether expert or not, to give opinion evidence about the legal consequences flowing from relevant events. The judge is equipped for and expected to consider such matters with assistance from the parties. Expert testimony is not needed. To permit lay witnesses to express opinions on matters of law may confuse and is unlikely to be helpful. It is difficult, however, to assess the need for control. One commentator has suggested that there is no need for such controls—a witness who is not expert in the law cannot testify on the effect in law of a state of affairs and an expert would not generally be called in practice.[52] There is much force in this comment and it must be remembered that, under the proposals,[53] formal evidence is not required of matters of law. The expert psychiatric witness, however, should be able to testify in terms of the accused not knowing what he was doing or not knowing that it was wrong, even though this is a question requiring the application of legal standards to the facts of the case. As to the layman, he can, under the proposal, express an opinion where it is based on his perception and so could speak of ‘negligence’ and ‘fraudulence’ and use other terms capable of having a legal meaning. It may be, however, that there is little harm in such evidence. If the terminology concerned slips out in the course of evidence, the witness can be questioned on what he meant. In a jury trial, the judge can direct the jury that the ultimate issue is for the jury to decide. Such evidence, in any event, comes under the control of the provision on lay opinion evidence—is the evidence necessary to obtain an adequate account of the witness’ perception of the matter or event—and of the exclusionary discretions which can be used to exclude evidence of little probative value and with the potential to mislead or confuse. Evidence of an expert on a question involving legal standards and questions is similarly controlled—he must have special qualifications such as are likely to assist the court—and is also subject to the exclusionary discretions.
Two options have been suggested by other law reform bodies:
(a) Canadian. The Task Force recommended permitting reception of such evidence where the ‘judge concludes that it would be helpful to the trier of fact’.[54] The Uniform Law Conference added two requirements—that the factual basis for the evidence ‘has been established’ and more detailed evidence cannot be given by the witness’.[55] A difficulty with both proposals is the test of the evidence being ‘helpful’. All relevant evidence can be helpful. What is involved is balancing the helpfulness of the evidence against the disadvantages. This question is dealt with, in any event, by the relevance discretion.[56]
(b) South Australia. The Criminal Law and Penal Methods Reform Committee[57] recommended that an expert witness not be asked any ‘question which goes directly to the issue to be determined by the jury if the question can be decided by the jury without the aid of expert evidence’. Very few questions, if any, on the ultimate issues could survive this test.
The Commission has considered other formulae. All are unsatisfactory:
(a) ‘Evidence of an opinion as to the effect in law other than foreign law of a state of affairs is not admissible in a trial’.[58] This proposal would prevent opinion testimony on the effect of Aboriginal customary law (eg where recognised or where relevant on matters such as sentencing) and on the effect of international law (which is not regarded as foreign law).
(b) Evidence of an opinion as to the application of the law to a state of affairs is not admissible in a trial. It would be necessary to require the opinion to be of the result of the application of the law. There are difficulties about the meaning of ‘the law’. Such a proposal could exclude evidence presently admissible—for example, whether the accused knew the nature and quality of his act and whether it was wrong;[59] whether a representation in an application for insurance was ‘material’;[60] what is ‘proper seamanship’ in a marine case[61] and whether the acts of a professional person were negligent.[62]
(c) Evidence of opinion as to the application of a legal standard is not admissible.[63] This test reflects the early approach that proscribed expert opinion upon a question of mixed law and fact.[64] It also could exclude the evidence referred to above that is presently admissible.
Having regard to
• the controls built into the other proposals on opinion evidence;
• the unlikelihood of experts in law being called;
• the ability of the relevance discretion to be used to exclude evidence the probative value of which is outweighed by its tendency to confuse, mislead etc; and
• the difficulties in producing a satisfactory test;
no proposal is advanced for a control in substitution for that restricting testimony upon an ultimate issue. A specific provision is created, however, to abolish it, so as to make clear the stance of the draft legislation on the area and to preclude so far as possible re-emergence of the rule via the relevance discretions. This is the approach taken in the majority of reform proposals.[65]
744. Novel Scientific Evidence. The discretionary clauses referred to above would be available in relation to novel scientific evidence. In this area the United States experience serves as a harbinger of what the Australian jurisdictions can expect, attempts having recently been made to use evidence from voiceprint analysis, human factors engineering, neutron activation analysis, gunshot residue tests, bitemark comparisons, statements under sodium pentothal, infant blood analysis, scanning electron microscope analysis and numerous other forensic techniques. Problems can arise where
• different experts give widely varying opinions upon the reliability or validity of techniques in the vanguard of scientific endeavour;
• there are insufficient experts available to assist the courts, the theories and techniques being so new; and
• expert testimony is not capable of assessment by the tribunal of fact.
Under these circumstances the tribunal of fact may be in an extremely difficult position when called upon to decide whether or not to make use of the novel scientific evidence. Considerable time may be wasted. It is difficult, however, to develop appropriate controls. Reference has been made to the Frye test[66] under which the court may exclude expert opinion evidence based on techniques or theories that are not generally accepted in a recognised field of knowledge or skill. However, the Frye test has attracted criticism as to both its theoretical bases and its implementation.[67] It also excludes much valuable, reliable scientific evidence.[68] There may, for example, be a number of different schools of thought among experts.[69] If the courts excluded evidence from sectors of the scientific community which as yet had not achieved general acceptance, they could be seen to be adopting an ostrich-like position. It would mean that the legal system would constantly lag behind the advances of science while the courts waited for scientific theories and techniques to win ‘general acceptance’.[70] One consequence would be that the parties would feel that they had been prevented from adequately presenting their cases.
745. As noted above,[71] in the United States it has been found difficult to:
• decide whether to characterise evidence as ‘scientific’ and so requiring of application of the Frye test;[72]
• identify the relevant ‘scientific field;[73]
• determine when ‘general acceptance’ exists within the scientific community.[74]
It is doubtful even whether such a test would result in any saving of time. The investigation of ‘acceptance’ and of ‘reliability and accuracy’ in the relevant field would have to be conducted on a voir dire. In the course of the voir dire the evidence sought to be adduced would be detailed, examined and tested. Should the judge decide to admit the evidence, the same exercise would have to be repeated. The existence of such a test may also prompt tactical objection to the admissibility of expert evidence—particularly, in criminal trials.
746. Another suggestion has been a requirement that the expert opinion be supported by a ‘reputable body of opinion’. While this would not exclude as much evidence as an ‘acceptance’ test, it would exclude evidence based on new discoveries which may be quite sound. Considerations of fairness and time and cost again support the view that such a test should not be adopted and that problems of court assessment of the evidence be met individually as they arise.
747. What is required is a power to exclude expert opinion evidence in extreme cases when it becomes apparent that its probative value is clearly outweighed by negative factors. Attempts have been made in the United States to identify guarantees of reliability the absence of which would lead to non-admissibility of scientific evidence.[75] The Research Paper proposal included a discretion to be exercised where the opinion was based on techniques or theories ... ‘the reliability or accuracy of which cannot reasonably be assessed by the court’.[76] This however, could exclude much evidence which should be admitted. Expert opinion evidence is often based on techniques and theories the reliability or accuracy of which courts cannot reasonably assess[77] and often their accuracy or reliability is not disputed by the parties. The court, in any event, is not required to understand fully the techniques and theories ‘in order to accept and act on scientific opinion evidence’. Their accuracy can be accepted without a complete understanding. If, however, the court ‘did not know where accuracy and truth lay with respect to opinion evidence, then [it] could not act on it’.[78] As Chief Justice Bowen and Mr Justice Forster held in the Chamberlain case[79] if the jury has a doubt as to ‘the scientists’ approach, as to methodology’, it has a duty not to act upon those opinions. Demonstrated lack of reliability or comprehensibility of opinions expressed thus goes not to admissibility of those opinions but to the weight to be attached to them. Reliance is, therefore, placed upon the protections inherent in the adversary conduct of trials and the nature of cross-examination, as well as in the fairness of the judge’s summing up to the jury, when there is one.
748. The courts need to be able to exclude evidence because of the prejudicial effects that it may have, its questionable reliability, and its tendency to mislead, confuse or require undue time and cost. On balance, the discretionary provisions[80] are the best solution and a positive means of expediting court proceedings in clear cases should the necessary concern about the effects of the evidence arise. They provide a safeguard to meet the challenge of new scientific theories and inventions that parties will be seeking to bring before the courts. Should the scientific evidence be repetitive and cumulative in purpose, it could be excluded. Should it be liable irrationally or incorrectly to affect court assessment of the evidence, the court could also rule it to be inadmissible.[81]
749. A Bill of Rights for Expert Evidence. Recent debate has included the call for a forensic Bill of Rights:
A systematic testing procedure for scientific evidence.1. The right to immediate access to all scientific evidence.
2. The right to obtain independent scientific testing of samples.
3. The right to challenge the evidence before it is presented to a jury.
The admissibility of evidence that has been challenged should be determined by progressing through the following systematic procedure.
Technique. Were the correct techniques used? Reproducability (by duplicate samples or by submission to an independent laboratory), specificity (by testing closely related samples), accuracy and precision. Experimental design. Were the tests appropriate for testing propositions of innocence as well as guilt? Standardised procedures and national quality assurance schemes to minimise argument about methods.
Conclusions. Requirement that all possible conclusions that are validly obtained from the evidence are presented, and are presented unambiguously.
This provides a logical framework for testing scientific evidence. When these matters have been argued before the judge in chambers, the points agreed and the points disagreed can then be put to the jury in clear and unequivocal terms.[82]
Other suggestions have also been made recently both in Australia and England about the conduct of forensic scientific experiments and on the (English) practice by which an institution which has supplied services to the prosecution will not carry out services for the defence. These include the suggestion that the body which conducts forensic experimentation for criminal cases should be independent of the prosecuting authorities. Although the above matters bear importantly upon the production and handling of expert evidence, they are outside the terms of the present reference.
750. The Basis Rule. It has been implied in some cases and asserted in some academic writing that there is a rule of evidence that for expert opinion testimony to be admissible it must have as its basis admitted evidence.[83] The better view is that there is no such rule. Were it to exist, it would not be possible to have opinion evidence which had as a significant component the opinions or the statements of others. This would preclude the tendering of evidence whose value is dependent upon material not before the court and, therefore, difficult for it to assess. While this would have its advantages, it would fail in its inflexibility to take account of the normal means by which experts generally form their opinions—by means of reports of technicians and assistants, consultation with colleagues and reliance upon a host of extrinsic material and information that it would be an endless and unfruitful task with which to burden the courts. It is proposed to refrain from including a basis rule in the legislation, thus allowing opinion evidence whose basis is not proved by admitted evidence prima facie to be brought before the court. Under these circumstances the weight to be accorded to it will be left to be determined by the tribunal of fact. Areas of doubt however must be addressed. These include:
• whether evidence by the expert of the hearsay foundation of his opinion may be excluded and, if so, on what grounds; and
• whether an opinion based upon hearsay material should be open to exclusion and, if it is excluded, the grounds for its exclusion.
Such material will be able to be excluded by the operation of a relevance discretion. Thus, if it appears to the court that excessive time will be expended upon the reception of the evidence, or that its prejudicial effect substantially outweighs its probative value, the court not being able to assess the weight to be accorded to it, the testimony can be excluded. The same approach is proposed to control the admissibility of the expert’s testimony of the facts on which his opinion is based where a party does not propose to, or does not, call direct evidence of the truth of the statements of fact relied upon by the expert. Tactical considerations will demand that under most circumstances the bases of expert opinion testimony are established by other admissible evidence.
751. The relevance discretions will come into play on the rare occasions when other evidence is not led as to bases of the opinion. It is not envisaged that this will make a substantial change to the law as it functions at present.[84] The changes that it will make, however, will clarify the grounds upon which the court may exclude the evidence of the expert as to his opinion and its basis.
[1] JH Chadbourn (rev) Wigmore on Evidence, Little Brown & Co, Boston, 1978, vol 7, para 1917; Ontario Law Reform Commission, Report on The Law of Evidence, Ontario, 1976, 149.
[2] Wigmore on Evidence, para 1917.
[3] ibid; Ontario LRC, 150.
[4] Wigmore on Evidence, para 1917.
[5] id, para 1918.
[6] P Mahon, ‘Expert Evidence’ [1979] NZLJ 123.
[7] See above, para 359.
[8] See above. para 351; Judge Learned Hand in Central Railway Co v Monahan 11 F 2d 212, 214 (2d Cir 1926).
[9] For example, when the witness’ opinions are based upon facts that he has perceived and enable him to give a clear and comprehensible rendition of his testimony: See the Federal Rules of Evidence (US) R 701; JB Weinstein & MA Berger, Weinstein’s Evidence, vol 3, Matthew Bender, New York 1982.
[10] See especially the problems outlined by RP Charrow & VR Charrow in their study, ‘A Final Report on Jury Instruction Comprehension’, Paper presented at the LSA Annual Meeting, December 1978. Also RM James, ‘Jurors’ Evaluation of Expert Psychiatric Testimony’ (1960) 21 Ohio State LJ 75; MM Belli, ‘The Expert Witness’ (1982) 18 Trial 34ff; VD Plueckhahn, ‘Legal Dilemmas in the Use of Expert Medical Evidence’, Opening Address at Supreme Court Judges’ Conference (1982) 14 Aus J of Forensic Sciences 168; B Danet, ‘Language in the Legal Process’ (1979) 14 Law and Society 447-564; WM O’Barr & JM Conley, ‘When a Juror Watches a Lawyer’ (1976) 3 Barrister 8; AD Yarmey, The Psychology of Eyewitness Testimony, Free Press, New York, 1979, 183; B Erickson, EA Lind, BC Johnson, and WM O’Barr, ‘Speech Style and Impression Formation in a Court Setting: The Effects of ‘Power’ and ‘Powerless’ Speech’, (1978) Journal of Experimental Social Psychology, 14, 266-279; LD Progrebin, ‘Down with Sexist Upbringing’ Ms Spring 1972; P Trudgill, ‘Sex, Covert Prestige, and Linguistic Change in the Urban British English of Norwich’ (1972) 1 Language in Society 179.
[11] In 1968 the California Supreme Court (People v Collins (1968) 66 Cal Rptr 497) was compelled to grapple with a similar issue after complex mathematical evidence had been employed by the parties appearing before it. It concluded that few defence attorneys or jurors could discriminate the errors in the prosecution’s analysis and that this ‘trial by mathematics’ distorted the jury’s role and so disadvantaged the defence counsel as to amount to a miscarriage of justice.
[12] ‘Basic to the issues before us today is the proposition which one hears a great deal nowadays, namely, that if experts differ there must be a reasonable doubt in the jury’s mind which will lead to an acquittal. This is heresy, and the more often it can be pointed to as heresy the better:’ R v Sodo (1975) RTR 357, 360 (Lord Widgery).
[13] See also Mahon, 126 and the reflections of Dixon CJ that he quotes.
[14] A Samuels, ‘Expert Forensic Evidence’ (1974) 14 Med Sci & Law 17.
[15] Excerpts from her confidential report are published in an article—M Harmer ‘How a Forensic Scientist Fell Foul of the Law’ (1981) 91 New Scientist 575-6.
[16] id, 576. The Criminal Justice Act 1982 (UK) lays down rules for giving evidence. See also RFG Ormrod, ‘Evidence and Proof: Scientific and Legal’ (1972) 12 Med Sci & Law 9, 19.
[17] Harmer, 575.
[18] Lord Abinger v Ashton (1873) 17 LR Eq 358, 373ff. See also Plimpton v Siller [1877] UKLawRpCh 206; (1877) 6 Ch D 412, 416; More v R [1963] SCR 522, 537-8; DC McDonald, ‘Opinion Evidence’ (1978) 16 Osgoode Hall LJ 321, 331.
[19] See Abinger v Ashton (1873) 17 LR Eq 358; Davidson v Davidson (1860) 22 D 749 LP McNeil 751; see LRC Haward, Forensic Psychology, Batsford Academic and Educational Ltd, London, 1981, 176.
[20] [1877] UKLawRpCh 206; (1876) 6 Ch D 412, 416.
[21] LL Weinreb, Denial of Justice, Free Press, Macmillan Publishing Co, New York, 1977, 98-99, 102.
[22] And hence their employability for future forensic purposes.
[23] LRC Haward, Forensic Psychology, Batsford Academic and Educational Ltd, 1981.
[24] In 1843, for example, Lord Campbell in the Tracy Peerage Case commented that:
... hardly any weight is to be given to evidence of what are called scientific witnesses; they come with bias on their minds to support the case in which they are embarked; ... (10 C1 & F154, 191; 8 ER 700, 715).
[25] All evidence includes conclusions and mental impressions. The extent will vary according to the extent the witness relies on his personal observations: See above, para 349.
[26] The primary exclusionary rule uses the expression ‘evidence of an opinion’. This enables it to operate in relation to hearsay evidence of an opinion as well as evidence in the form of an opinion.
[27] Scottish Law Commission, Memorandum No 46, Law of Evidence, Edinburgh, 1980, para R.03-R.05; Law Reform Commission of Canada, Report on Evidence, Ottawa, 1977, 97-8 (cl 67-71); Federal Rules of Evidence (US) R 701-706; Law Reform Committee (England and Wales) Seventeenth Report, Evidence of Opinion and Expert Evidence, HMSO, London, 1970, para 4-63 (LRC 17); Criminal Law & Penal Methods Reform Committee of South Australia, Third Report, Court Procedure and Evidence, Govt Printer, Adelaide, 1975, para 6; Federal/Provincial Task Force of Canada, Report on Uniform Rules of Evidence, Carswell Co Ltd, Toronto, 1982, para 8-10.
[28] See Appendix C, para 95.
[29] See Cosgrove J in Price v R (Unreported no 67, Tas Court of Criminal Appeal (17 December 1981) 14).
[30] Other terms considered were ‘complete’, and ‘clear account’. However, the evidence may be ‘clear’, but without the opinion, ‘incomplete’. The proposal would be too narrow with either term. Note also the relevance discretion which is available to exclude evidence where the time, cost etc of receiving the evidence outweigh its probative value (see above, para 640, 643).
[31] See above, para 11.
[32] See, for example, EW Cleary, McCormick’s Handbook of the Laws of Evidence, 2nd edn, West Publishing, St Paul, 1972, para 13.
[33] Clark v Ryan [1960] HCA 42; (1959) 103 CLR 486 and Weal v Bottom (1966) 40 ALJR 436.
[34] Another exception appears to exist with respect to expertise in foreign law where the approach is to focus on the existence of the knowledge rather than on how it was acquired Luder v Luder (1963) 4 FLR 292, 295.
[35] See above, para 354; cf judicial notice proposal (see below, para 972, 977). The definition is not critical in that proposal. If the judge is unclear, he will not act upon the knowledge or will refer to sources to determine whether the matter is disputable.
[36] See above, para 640, 643.
[37] As the ‘ordinary man’ on the jury is competent to understand ‘ordinary things’, the courts have held him competent to comprehend the psychic functioning of the ‘normal’ man. They have on this basis excluded expert testimony that relates to him.
[38] See MS Moore, Loss and Psychiatry, Cambridge University Press, Cambridge, 1984, 182ff; T Szasz; The Manufacture of Madness, Harper & Row, New York, 1970, T Szasz The Myth of Mental Illness, Harper & Row, New York, 1961; EM Bates, Models of Madness, University of Queensland Press, Brisbane, 1977; AA Bartholmew & KL Milte, ‘The Reliability and Validity of Psychiatric Diagnoses in Courts of Law’ (1976) 50 ALJ 450.
[39] See Hutley J in Epperson v Dampney [1904] VicLawRp 58; (1976) 10 ALR 227.
[40] Eagles v Orth [1976] Qd R 313; R v Gilmore [1977] 2 NSWLR 935.
[41] See above, para 355-8.
[42] The situation may well now have been affected by the Federal Rules of Evidence (US), although the question remains controversial.
[43] See above, para 356.
[44] See Appendix C, para 105.
[45] Per Glass JA in R v Palmer [1981] 1 NSWLR 209, 214.This is consistent with what may well be the original formulation of the ultimate issue rule, if it be interpreted from the case which is usually said to have given it birth, simply that opinion testimony upon questions of law crucial in the case must be excluded.
[46] See above, para 359 and Appendix C, para 105.
[47] See the reasoned approach in In the Marriage of Hall and Hall [1979] FamCA 73; (1979) FLC 90-713, 78, 814, 78, 818.
[48] Federal Rules of Evidence (US) R 701-706.
[49] Ontario Law Reform Commission, Report on The Law of Evidence, 1976, 153-8; Law Reform Commission of Canada, Report on Evidence, 97, 98 (ss 67-71); Federal/Provincial Task Force, Report on Uniform Rules of Evidence, para 8-10.
[50] Scottish Law Commission Memo No 46 Law of Evidence R.01-R.06. See also Law Reform Committee, 17; Criminal Law Revision Committee, England and Wales, Eleventh Report, Evidence (General) HMSO, London. 1977, para 266-272.
[51] Criminal Law and Penal Methods Reform Committee of South Australia, Third Report, Court Procedure and Evidence, Govt Printer, Adelaide, 1975, para 6.
[52] Justice Nygh, Submission (4 May 1983).
[53] See below, para 973.
[54] By majority, Federal/Provincial Task Force, Report, para 8.4.
[55] id. Appendix 4; Uniform Evidence Act (Canada) s 40.
[56] Uniform Evidence Act (Canada) s 22(3).
[57] Report, 6.3.1.
[58] IR Freckelton, Evidence, Research Paper No 13, Opinion Evidence, Australian Law Reform Commission, 30 (cl 5).
[59] See R v Holmes [1953] 1 WLR 686; [1953] 2 All ER 324; R v Mathews (1953) 17 CR 241; 9 WWR (NSW) 649.
[60] Yorke v Yorkshire Insurance Company [1918] 1 KB 662; Sun Insurance Office et al v Roy [1927] 1 DLR 17. 21.
[61] Fenwick v Bell [1844] EngR 319; (1844) 1 Car & Kir 312; 174 ER 825.
[62] Davy v Morrison [1931] 4 DLR 619; See also Fisher v R (1961) 130 CCC 1, 19-20, 24-25; R v Searle [1831] EngR 521; (1831) 1 M & Rob 75; 174 ER 26; R v Frances (1849) Cox CC 57; R v Smith (1915) 11 Cr App R 229; R v Rivett (1950) 34 Cr App R 87; Rich v Pierpont [1862] EngR 192; (1862) 3 F & F 35; 176 ER 16; Samuels, 20.
[63] See Glass J in R v Palmer [1981] 1 NSWLR 209, 214.
[64] See R v Wright [1821] EngR 55; [1821] Russ & Ry 456, 168 ER 895; Ontario Law Reform Commission. 154.
[65] Federal Rules of Evidence (US) and Law Reform Commission of Canada (both relying on the Relevance discretion); Law Reform Commission of Ontario; LRC 17; and see, s 3(3) Civil Evidence Act (UK) 1972; Criminal Law Revision Committee (England & Wales) 11th Report.
[66] See above, para 355-8.
[67] ibid.
[68] ibid and see EJ Emwinkelried, ‘A New Era in The Evolution of Scientific Evidence-A Primer on Evaluating the Weight of Scientific Evidence’ (1981) 23 William & Mary Law Rev 261, 265.
[69] For example, the connection between heart disease and work and the causes and reality of backpains. Note also the different schools of thought that emerged in Chamberlain v R [1983] FCA 78; (1983) 46 ALR 493.
[70] See United States v Sample 378 F Supp 44, 53; Emwinkelried 265.
[71] See above para 356.
[72] PC Gianelli, ‘The Admissibility of Novel Scientific Evidence, Free v United States, A Half-Century Later’, (1980) 80 Columbia L Rev 1197, 1219-21: M McCormick, ‘Scientific Evidence: Defining a New Approach to Admissibility’, (1981) 67 Iowa Law Review 879.
[73] See Gianelli 1208-10.
[74] See PL Kirk, ‘The Inter-Relationship of Law and Science’ (1964) 13 Buffalo Law Review 393; Gianelli 1215.
[75] See United States v Williams [1978] USCA2 671; 583 F 2d 1194, 1198 (2d Cir 1978). See also McCormick, 911ff.
[76] Freckelton, 27.
[77] eg one commentator referred to ‘atomic absorption spectrometors’.
[78] Chamberlain v R [1983] FCA 78; (1983) 46 ALR 493, 505 per Bowen CJ and Forster J.
[79] ibid.
[80] See above, para 640, 643, 957.
[81] This could occur in exceptional cases where, for example, the court could not assess the propriety of the methodology of experiments (Chamberlain case) or felt itself not in a position properly to assess expert evidence.
[82] B Selinger, ‘Science in the Witness Box’ (1984) 9 Legal Services Bulletin 108.
[83] See Appendix C, para 107-8.
[84] ibid.
752. Preliminary Definition. An admission is a representation made by a person who becomes a party in a civil trial or an accused in a criminal trial. It is usually an assertion against interest. His opponent[1] may want to adduce evidence of that assertion at the trial, because he perceives it as supporting his case, in that it damages the case of the party/accused.[2] As a general rule, in both civil and criminal proceedings, admissions are admissible[3] as an exception to the hearsay rule. It is proposed to consider first the rationale for the general exception and advance proposals of general application. The rationale for the specific controls which apply in criminal cases will then be considered and proposals advanced in respect of them.
753. Rationale for Admissions Exception to Hearsay Rule. The main reason advanced for the admissibility of admissions is that, whatever the general validity of the various justifications for the hearsay rule, they have limited applicability to evidence of admissions. These justifications are:
• Danger that Assertion Unreliable. Assertions made out of court are not subject to the safeguards of the oath and the law of perjury. They are less likely to be true. But this rationale is particularly unconvincing where the assertion is against the interest of the person making it.[4] It seems an acceptable generalisation that people do not usually assert something to their disadvantage unless it is true (or, at least, they believe it true). But this argument applies only where the person making the assertion believed it was against his interest when he made it and the assertion was against his interest at that time (rather than becoming against his interest at some later time). In addition, it is less persuasive where—the assertion is one of opinion rather than fact; the assertion concerned a fact about which the person had no (personal) knowledge; the assertion is made by an agent of the party, and the assertion is treated as having been made by the party (the assertion need only be against the interest of the party not the agent); or the person making the assertion had a substantially impaired capacity to make a rational choice.
• Difficulty of Assessing Reliability of Assertion. The person making the assertion out of court is not giving evidence and is not, therefore, subject to examination and cross-examination in court. The court does not have the opportunity to see the demeanour of the person who made the assertion, or to test his memory or perception. Also, parties affected by the assertion might justifiably feel that they have not had a fair trial if decisions adverse to their interest are made upon the basis of such evidence. But in the case of admissions, a party alleged to have made the admission may go into the witness box and give evidence relating to, and explaining, that admission. He or she can give evidence to contest that given of the ‘admission’.[5]
• Danger that Evidence of Assertion Unreliable. Psychological research verifies that second-hand accounts are likely to be more inaccurate than firsthand accounts, in that there is a doubling up of the risk of defective perception, recollection and narration.[6] There is also the danger that the person giving evidence of the assertion may be affected by bias. These dangers apply with equal validity to evidence of admissions. The position of criminal cases, however, may be somewhat different since in the vast majority of cases the evidence would be from a member of the police force and there is the opportunity to minimise these dangers. Considering the particular dangers in that context:
(i) Perception. The admission is likely to be made to law enforcement officers who will, in at least some cases, have the opportunity to ensure that it is made as clearly and precisely as possible. Their past experience and expectations may, however, distort their perception to some extent.
(ii) Memory. The opportunity exists on occasions to record the admission in some way, either in writing or on tape.
(iii) Communication. The unconscious compulsion to fill in gaps in the narrative[7] can be less significant here because of the opportunity to make some record of the admission.
(iv) Bias. The scope of this danger is uncertain. On one view, investigating officers are reliable, objective state officials who have no interest in distorting the assertions of an accused person. But a more realistic analysis would suggest that they fulfil an adversary role in the criminal justice system, having an interest in ensuring the conviction of persons charged by them with criminal offences. In these circumstances, the danger of distortion extends from misinterpretation to fabrication of admissions.
(v) Risk of Fabrication. The potential for fabrication exists. It is primarily limited to the possible perjury of the witness giving evidence of the alleged admission.[8] The danger of a person contriving to make a statement against his interests is somewhat remote.
• Cost and Time. There is a public interest in limiting the range of material used in courts and hence limiting the length and cost of trials, which are already a significant problem. But if admissions are likely to be reliable evidence, or at least probative, then the concern for reducing the length of trials would not seem to justify the exclusion of this evidence.
• Risk of Surprise. The risk of surprise should be minimised to ensure fairness at trial and the smooth running of the justice system. But a party will be able to contest evidence of an alleged admission (except on some occasions, where it was made by some other person and deemed to be made by him).
On the basis of this analysis, admissions are likely to be or have the potential to be less unreliable evidence and less prone to assessment difficulties and other problems than most other forms of hearsay evidence.[9] It is inappropriate to exclude such evidence from the trial.
754. At this point, another possible rationale for the admissibility of admissions may be noted.[10] Several writers have argued that admissions are received because a person cannot complain about the admissibility of statements for which he is responsible.[11] They advance this argument to explain the fact that an admission is received even if made without personal knowledge, or without a belief that the assertion was against interest, or even if the assertion was not in fact against interest when made. The argument also provides a justification for the admissibility of ‘vicarious admissions’. Arising out of the nature of the adversary trial, a party ought to be ‘saddled with’ responsibility for his admission, even if it does not bear any special stamp of reliability. But if an analogy is sought to be drawn with estoppel it is unsatisfactory. Estoppel is not normally available unless the statement was a serious communication, as to which the person making it knew or ought to have known that it was likely to be relied on. An admission, however, is not necessarily a communication, let alone a serious communication. Nevertheless, an appropriate ground for ‘saddling’ a party with an admission would be the understandable resentment of a party who might lose a case knowing that his adversary believed in the existence of facts according to which he, the party, should win. This would provide an explanation for the admissibility of admissions of doubtful reliability noted above. It would also explain the existing rule that an admission is available only against the party who makes it. But while this analysis has a number of attractions as an historical explanation of the existing ‘admissions’ exception to the hearsay rule, it is proposed to consider the topic primarily from the perspective of the various hearsay concerns already noted. Such an approach seems more appropriate for a law reform perspective. At the same time the above analysis will be relevant and important.
755. Proposal. It is proposed to allow evidence of admissions to be received and to treat admissions as an exception to the hearsay rule. However, a number of uncertainties have to be resolved and criticisms considered and met where appropriate.
• Definition. Existing uncertainty as to the precise definition of an admission has been noted[12]—whether it should be defined simply as evidence of a party’s assertion adduced by an opponent, or evidence of an assertion that is against the party’s interest at trial. Generally, the uncertainty makes no practical difference; an opponent would not usually adduce a party’s out of court assertion unless it was in fact against that patty’s interest at trial. But there may be exceptions to this proposition. For example, if the former definition is used, the prosecution may adduce an accused’s out of court denial of allegations made against him in order to get into evidence the allegations themselves.[13] Such a definition also requires that an opponent adduce the evidence. Difficulties could arise in deciding whether a party in a case, seeking to adduce an assertion by another patty which appeared to be in the interests of the latter, was in fact an ‘opponent’, or adverse party. For these reasons, any definition of ‘admission’ should include the requirement that the assertion by a party be against the interests of that party in the trial. In addition, the definition should not exclude admissions contained in pleadings. This is contrary to the orthodox view, which seems to be based on doubts about the reliability of such pleadings. They may be made for tactical reasons rather than as an assertion of truth. Contradictory pleadings may be filed. But more recent decisions support the proposition that pleadings should not be placed in a special category—it should be a question of fact in the circumstances whether the particular statement constitutes an admission.[14] This seems a preferable approach[15] and is that proposed.
• Changes in Capacity. The present rule is that an admission made by a person in a personal capacity is not admissible against that person when a party to litigation in a representative capacity and vice versa. This is premised on the principle that persons other than the maker of an admission ought not to be bound by it. But no one is bound by it. It is received in evidence and the person who made it is not prevented from explaining his admission at the trial. Despite the change of capacity, the reliability of the admission does not change. From a reliability perspective there is no justification for the distinction and it should not be necessary that the assertion was made during the period when the person was a representative.[16] The other hearsay concerns are also unchanged. It is, therefore, proposed that changes of capacity should not be taken into account in considering whether a representation should be regarded as an admission.[17]
• Admission by Adoption of Third Party Assertion. One approach to the admissibility of evidence of a statement allegedly adopted by a party seems to be simply to determine whether it was made in the presence of that party. This is a convenient and simple test. But such an approach is analytically unsound. Statements made in the presence of the party should be admissible under the admission exception to the hearsay rule if adopted by the party. They will also be admissible if not adduced to prove the truth of what was asserted eg, an assertion adduced to show that the defendant was aware of something, or to explain his subsequent conduct. The trial judge must therefore be informed of the purpose for which the evidence is adduced. If it is adduced to prove the truth of the facts asserted, then the trial judge should make a preliminary determination of whether there is any evidence from which a reasonable jury, properly directed, could infer adoption of the statement. If there is none, the statement would be inadmissible for that purpose.
• Admission by Third Parties. The primary argument for permitting an ‘admission’ by a third party to be proved against a party is based on the adversary nature of the trial system. It is fair to allow a party to be held responsible for an assertion made by a third party if that third party is an agent of the party acting under his authority. Thus, an admission made by a managing director should be admissible against the company, even if arguably unreliable, because he either had actual authority to make the admission or was put in a position where a reasonable observer would assume he had such authority. The argument of fairness derives from the fact that the opponent may feel that he should be able to use a statement by a person apparently in the party’s camp, and from the likelihood that the party will be able to call the third party or give evidence himself to explain the apparent admission. But, on the other hand, the party may feel it unfair that a statement not made by him should be automatically available despite the hearsay rule—he would argue that its uncertain probative value would justify application of the general rule excluding hearsay. It has already been noted that the major rationales justifying the admissions exception to the hearsay rule tend not to be as strong when vicarious admissions are considered. In particular:
(i) Unreliability of Admission. An assertion made by a person associated in some way with the party need not be against that person’s interest to constitute an admission. It need only be against the party’s interest at trial to constitute an admission, but that might be quite irrelevant to the person who made the assertion. In most situations, of course, an ‘agent’ of the party will be disadvantaged to some extent if his ‘principal’ (the party) is disadvantaged. But the degree of probable disadvantage is highly variable. Further, this point would have limited application to co-conspirators or referees. Indeed the reverse may apply, since a conspirator might seek to implicate the alleged co-conspirator in order to avoid personal liability.[18] All that can be said is that, if a person has a close association with a party, an assertion by that person may well be against his personal interest if it is against the interest of the party. The degree of reliability will vary according to a number of factors.[19] However, where the third party shares(d) an identity of interest it is likely that the admission will be truthful.
(ii) Assessment Difficulties. Often a party would not personally be able to explain or investigate[20] an admission made by a third party and imputed to him. Therefore, the hearsay problem, that the person making the assertion out of court is not subject to examination and cross-examination in court, would apply. But, in those cases where the third party was in some form of association with the party at the time of making the assertion, it will often be that the party would have little difficulty in obtaining the testimony of that third party. The third party could then explain the circumstances of the assertion. There is, thus, some basis for a distinction between ‘vicarious admissions’ and hearsay in general.
It may be concluded that assertions against the interest of a party, made by a third party having some privity of interest with or associated in some way with that party, are likely to be more reliable than hearsay in general, but also less reliable than admissions made personally by a party. Taking into account the various hearsay considerations noted earlier, it would seem that the best approach is to impose a requirement of authority to speak or a requirement that the statement relate to an area of personal responsibility. The party against whom the evidence is led is likely to be in a position to contest the reliability of the statement. The present category of ‘authorised admissions’ will, therefore, be modified and expanded, while the area of ‘admissions’ by persons in ‘privity’ will, because of the latter consideration, be abolished.[21] There remains, as under present law, the problem of establishing the conditions of admissibility—the admission in question cannot be used and the relevant information is in the possession of the party against whom it is sought to lead the admission. It is proposed that it will be sufficient for admissibility if the person who made the statement purported or appeared to be an agent or employee of the party and purported or appeared to have authority within the area to which the statement related.[22]
• Statements of Alleged Co-Conspirators. Concern has been expressed about the application in trials for conspiracy of the proposals for third party admissions to statements allegedly made by conspirators. Two categories of evidence need to be considered:[23]
(i) Statements as Overt Acts. Evidence of statements made by an alleged conspirator A and tendered as evidence of acts done pursuant to the alleged conspiracy will continue to be admissible against alleged conspirator B. The evidence is not tendered for a hearsay purpose and is not caught by the hearsay proposal. Such evidence raises a problem of conditional or provisional relevance—the relevance of the act of A to the case against B will depend upon a prima facie finding that there was a common purpose between A and B.[24] This issue is covered by the proposal on provisional relevance and can be handled in practice as at present.
(ii) Statements as Evidence of the Truth of the Facts Asserted. Evidence of statements by an alleged conspirator will be admissible as evidence of the truth of the facts asserted against that person and other alleged conspirators if it comes within the exceptions to the hearsay rules. The admission proposals also address the issue. They permit the evidence of the statement of A to be admitted against B to prove the truth of the facts asserted if it is reasonably open to find that it was made in furtherance of their common purpose and, therefore, with B’s authority.[25] This accords with existing law.
• Lack of Personal Knowledge. Under existing law, admissions which are not based on personal knowledge are admissible if there is evidence of belief in the fact admitted. It is proposed to retain this approach. While the assumption that admissions are generally trustworthy is not so persuasive where the admission is not based on personal knowledge, such admissions will, when tendered in evidence, usually concern some matter of substantial importance to the declarant upon which he has informed himself, so that they possess greater reliability than hearsay in general. Further, if admissions were only admissible when based on first-hand observation, enormous evidentiary difficulties would follow since much of the ‘knowledge’ which a person accepts as factual might be traced to a hearsay basis.[26] What matters is the probative value of the admission, and this will depend on a variety of factors, including the sources on which it is based. Nevertheless, its probative value is likely to be high, where he or she made it with the belief that it was true and with knowledge of or the opportunity to check the reliability of the informants. In these circumstances a rule of inadmissibility seems inappropriate.[27]
Mixed Law and Fact. It has been proposed to abolish the ultimate issue rule relating to opinion evidence. For similar reasons it is not proposed to exclude admissions by a party on a subject which is a mixture of law and fact leg ‘I was negligent’).[28]
Self-Serving Admissions. A party may make a series of assertions of fact, some against interest at trial, some in his interest, some neutral. Only the former assertions would fall into the proposed definition of admission. Existing law, nevertheless, permits the self-serving portions of a statement to be admitted as evidence. It is not proposed to recommend any changes to the law. An assertion against interest should be considered in context—to assess its probative value it is necessary to consider assertions which qualify or modify it. Fairness to the patty requires that his statements not be taken out of context.[29]
Admission by Co-Party. Under the existing law, where a party makes a statement containing admissions together with self-serving assertions, the entire statement is admissible with respect to the case of the party. But, also under the present law, neither the admission nor the wider statement are admissible against anyone except their maker. This can produce odd results, and require confusing jury directions, but there are good reasons for this rule:
(i) Unreliability of Statement. The self-serving portions, while they may be relevant evidence against a co-party, are not against the interest of the person making the statement. They do not possess that hallmark of reliability. Accordingly, the normal hearsay rule should apply. While fairness to the person who made the statement might require the admissibility of these portions to qualify any assertions against his interest, this argument does not apply to a co-party against whom the statement might otherwise be used. Further, the admission of a co-accused’s out of court statement would combine the unreliability of accomplices with the unreliability of unsworn, untested statements.
(ii) Assessment Difficulties. A party may not be in a position to test an admission made by a co-party. Nor would there be an opportunity for cross-examination of the co-accused in a criminal case if that co-accused did not choose to go into the witness box. An accused convicted on such an untested assertion would feel, justifiably, that he had not had a fair trial.
(iii) Unreliability of Evidence of Assertions. The dangers in criminal cases have already been noted. A relevant danger in this context is that the law enforcement officers may seek to use one accused person to convict another accused person by means of confessional evidence.
An admission, and the statement of which it forms part, should not be admissible against a co-party.[30] If an admission is admitted into evidence against a party then the trial judge should inform the tribunal of fact that the evidence may be used only against that party. If he is of the opinion that the tribunal of fact may nonetheless give the evidence weight against another party, he may consider exercise of the judicial discretion to exclude otherwise admissible evidence. A more difficult question is whether evidence of a party’s admission may be used by, not against, a co-party—for example, an accused wishes to take advantage of a co-accused’s admissions which help his case. The hearsay concerns noted above are less strong in this context, where the statement was against the interest of the party who made it and the co-party would consider it unfair to have such statement inadmissible in his case. On the other hand, another party—for example, the prosecution—might justifiably fear complicity. It is proposed to permit a co-party to use a patty’s admission which is in evidence. This right, however, should be subject to the limitation that statements connected to the admissions will be admissible in relation to the co-party’s case—even though unfavourable to the co-party.
• Admission by Silence Out of Court. It would be a question of fact whether the silence of a party in response to an assertion made by a third person constitutes an adoption of the assertion or an implied admission (showing consciousness of guilt). Existing law adopts this approach, except where the assertion is made by the police and the trial is criminal in nature. The policy concerns relevant to this latter area explain the. different approach and will be considered next.
756. Inferences from Silence During Questioning. While the general rule is that the silence of a party in response to an assertion by a third person may found a reasonable inference of adoption, and thus constitute an admission, for various historical and policy reasons the courts have resisted the drawing of any such inference in criminal proceedings when the assertion was made by a police officer to a suspect. In the seventeenth century the rule developed that an accused person could not be examined on oath. This derived from the maxim nemo debet prodere se ipsum, no one may be compelled to betray himself. This maxim derived in turn from the
cardinal principle of our system of justice that the Crown must prove the guilt of an accused person, and the protection which that principle affords to the liberty of the individual will be weakened if power exists to compel a suspected person to confess his guilt. Moreover the existence of such a power tends to lead to abuse and to ‘the concomitant moral deterioration in methods of obtaining evidence and in the general administration of justice’.[31]
Later, it became accepted that a person has a right to say nothing in response to questioning respecting an offence he or she may have committed. A corollary of this right was the duty of investigating officers to inform a person being questioned of its existence.[32] On one view, the existence of the right means that no inferences (eg an admission of guilt) can be drawn from the decision to say nothing on the premise that otherwise the right would be meaningless and the person would be compelled to speak. There is some uncertainty as to the scope of this prohibition on the drawing of inferences. Nevertheless, the above argument and other arguments in favour of retaining a prohibition on the drawing of inferences from silence in response to official questioning are strong. Other arguments are:
• No Substantial Evidence. Even in ordinary affairs, a person may well assert that he will not respond to unfounded rumours or ‘fishing expeditions’ and his claim that no one can justifiably treat him as guilty of something because he remains silent would be widely accepted. The moral basis of the right to silence in these situations is in part the general interest in privacy. In addition, enabling inferences to be drawn from silence would enable law enforcement agencies to force people to answer questions when they had no evidence against them. An individual might be pressured to incriminate himself with respect to offences of which the law enforcement agencies are unaware, or merely have a vague suspicion. Such situation could enable persecution of unpopular minority groups.
• Compulsion to Speak. Despite the existence of rules relating to the voluntariness of admissions obtained by law enforcement officers, it is argued that the abolition of the right to silence, or rather the acceptance of the view that inferences may be drawn from a suspect’s silence, would impose considerable pressure on the suspect to speak. While this may not be by itself a bad thing, the danger is that it will encourage officers to use techniques of psychological pressure upon the suspect. It is seen as naive to think that use of some of these techniques will not grow if official restraints against any interference with the suspect’s free will to speak or not were removed.[33]
• Compulsion to Admit. An extension of the previous argument is that the right to remain silent is necessary to avoid encouraging improper conduct by law enforcement officers. If there is a right to an answer the belief may develop that there is a right to an expected answer and any method is justified in extracting it.[34]
• Reasons for Silence. The theory underlying reliance on silence by a suspect to an accusation is that the normal human reaction would be to deny such accusation if untrue. But the truth of this generalisation turns on a number of factors, including the circumstances in which the accusation is made, by whom it is made, and the physical and psychological state of the suspect involved. In particular, there may be a number of reasons for silence consistent with innocence. The suspect may wish not to disclose conduct on his or another’s part which, though not criminal, is highly embarrassing. He may wish to remain silent to protect other people. He may believe that the investigating officer will distort whatever he says, so that the best policy is to say nothing and to stick rigidly to that policy. More significant are communication problems. Many people accused of crime tend to be ignorant, inarticulate, suspicious, frightened and suggestible, arguably not able to face up to and deal with official questioning even if that questioning is scrupulously fair. They may misunderstand the true significance of questions. People are commonly unable to sort out and state the factual aspects of their problems clearly, even after time for studied reflection and discussions with friendly legal advisers. These dangers are exacerbated where the only question was the state of mind of the accused person when he committed a particular act as is frequently the case.
• Doubts about the Tribunal of Fact—Inferences from Silence. Doubts exist as to the ability of the tribunal of fact to assess the probative value of a suspect’s silence in the face of official questioning. In essence, the question revolves around the reasons for silence. A judge, magistrate or jury may not be aware of them in the particular circumstances of the case and thus have to speculate as to the reasons and assess their validity (ie the extent to which they would justify an innocent person remaining silent without a sound basis). Where the judge, magistrate or jury is fully aware of the reasons and the reasons are consistent with innocence, there is a danger that they will underestimate the extent to which such reasons would justify an innocent person remaining silent.
• Forcing Accused to Testify. The possibility of inferences being drawn from pre-trial silence will put pressure on the accused to testify, particularly to explain his reasons for remaining silent. It will thus significantly affect the tactical balance in the trial.
• Doubts about the Tribunal of Fact—Assessing Statements by Suspect. The tribunal of fact may give undue emphasis to what the suspect said to the police. For example, it may not fully comprehend the ways in which an innocent suspect may, with the witting or unwitting aid of law enforcement officers, help to convict himself. The very reasons why an innocent suspect may be reluctant to speak, considered above, may lead to admissions of doubtful value. More importantly, that doubtful value may not be readily apparent to the tribunal of fact if it is the product of communication problems like confusion, fear or misunderstanding.
• Not Seeking Independent Evidence. If inferences can be drawn from an accused person’s silence, the law enforcement agency will not be as eager to find real evidence or witnesses of the crime. It may be that the police already rely too heavily on interrogation and confessions to obtain a conviction. Modifying the right to silence will only exacerbate that tendency.
• Complicating Criminal Trial. Proposed changes may unduly lengthen and complicate criminal trials. The problem of proving at trial that a defence relied on at trial had not been mentioned to investigating officers, or that a person had not in fact answered questions, would place upon the police the burden of proving a negative. The professional criminal would not confess. Rather he would invent excuses why it was reasonable for him to remain silent, and then a substantial portion of the trial would be diverted to canvassing those reasons and deciding whether they were reasonable.
• Undesirable Symbolic Change. A shift in a right with historical and ideological roots as deep as the right to silence is bound to have broader symbolic overtones. While publicised contraction might be seen to symbolize a ‘toughening’ of the law to potential criminals more significant than its actual impact on them, it might also be seen to symbolize an indifference to individual liberty far out of proportion to its actual effect on liberty.[35]
But some courts have permitted the drawing of negative inferences in certain circumstances. Partial silence has been interpreted to show a ‘consciousness of guilt’. Some judges suggest that all reasonable inferences may be drawn.[36] A number of arguments may be advanced in favour of this position:
• Duty to Help. Members of a community have a duty to aid law enforcement agencies in solving crimes and they should ordinarily respond helpfully to official inquiries, even if they are effectively free of legal obligation in this respect. The existing protection, however, provides an accepted qualification to this duty.
• Important to Encourage Statements by Suspects. The right of silence can deprive the State of access to a valuable source of information, the person who is the subject of the investigation. Therefore, the benefits of the right to silence are attained at too great a cost to the fact finding inquiry.[37] The issue, however, is whether it is ‘too’ great a cost.[38] The research referred to in the next sub-paragraph suggests that the denial of access to information is slight and that, therefore, the cost should not be regarded as too great.
• Right Not Exercised. In England, the Royal Commission on Criminal Procedure observed that ‘the right to silence is not a right which the generality of suspects choose to exercise’.[39] In one survey discussed in the Commission’s report only four per cent of persons interviewed by the police refused to answer all questions and it was noted that it ‘requires an abnormal exercise of will’ to adopt this course.[40] Other studies in the United States, Singapore and Australia support the proposition that suspects, for whatever reasons, continue typically to confess and notification to a suspect of his right to silence has only a marginal effect upon the exercise of that right.[41] A study of cases heard in the Sydney District Court during a six week period in November and December 1979 found that few defendants exercised their right to remain silent at any stage during the interrogation and an even fewer number exercised their right at the outset and continued their silence for the duration of the entire period of interrogation.[42] Cautioning suspects that they need not speak may reinforce an illusion of voluntary co-operation, and may even help to establish rapport with the interrogator. Even where this is not their effect, cautions regarding silence and the other ‘rights’ may be delivered in a manner which minimises their impact—especially if suspects are ill-educated, or overwrought.[43] In cases where the right to silence is understood, continuous questioning, structured interrogatory pressures and the social situation may preclude its invocation. Official interrogators are aware of the embarrassment caused by silence in the face of continuous police questioning, and that this may be intensified by the physical proximity of the interrogator or by other manipulations which may preclude psychologically protective spatial adjustments.[44] Embarrassment may also be caused or increased by arrest, detention and associated pressures, which, according to some sociologists, bear the hallmarks of a degradation ceremony.[45] One can speculate about these possibilities but it is difficult to reach any firm conclusions. If the right is rarely used, the issue arises as to whether it should be strengthened or replaced with other procedures to protect the suspect when he chooses to talk. A tenable position is that the right is of such significance for other reasons that it should be retained, though not often used.
• Present Rule Discriminates Unfairly. The rule that a suspect has a right to silence when questioned shields the intelligent and emotionally strong much better than the weak. Only a minority of individuals are aware of such a right or capable of exercising it. Indeed, the best preparation for resisting official questioning is familiarity with it through previous exposure. But while this may be true, the right should not be removed from one section of the community just because another section does not use it.
• Reasonable Inferences should be Available. If an inference is reasonable, the fact finder ought to be able to draw it. All the behaviour of someone who is confronted with a charge should be available for the fact finder to consider. As a corollary of this argument, it may be argued that abolition of the right would not be oppressive in practice in that the inference of guilt would not be automatic. Such an inference would have to be reasonable in all the circumstances, and so determined by a jury, looking at all the evidence. On the other hand, if not automatic the inference of guilt would in most cases be drawn irrationally if the right were abolished. If the right is not abolished, it is difficult rationally to draw any conclusion from the silence of the suspect, although the present law permits inferences to be drawn in civil cases (everybody having a right to silence except where compelled to speak by law).
• Reflect Ordinary Reasoning. An extension of the previous argument is that, in ordinary social relationships between family members, friends and business associates, a person who has a substantial basis for thinking that another has caused unjustifiable injury often asks the ‘suspect’ whether or not he has done so, and expects a response. Suspicion does not confer a right to coerce an acquaintance by physical force or extreme pressure, but if a response is not forthcoming, and no explanation is offered for that silence, it is ordinarily inferred that he has something to hide. Few would think anything objectionable in drawing such an inference of probable guilt. On the other hand the question is whether the analogy is appropriate. It is thought not—questioning by law enforcement agencies is in a different category from less formal interactions.
• Legitimate Reasons for Silence will be Appreciated. Even if the generalisation that silence usually. indicates guilt is subject to exceptions, this should not prevent courts from drawing appropriate inferences from the evidence. If an accused person does have a good reason for remaining silent, it is argued that the fact finder will be able to take that reason into account when considering what inference to draw. Communication problems, for example, deriving from confusion, fear or lack of memory at the time of questioning are, it is suggested, precisely the matters that a jury is well equipped to understand and evaluate. On the other hand, this approach may well force such an accused into giving sworn or unsworn evidence about those reasons. If he does not give evidence, the court will be speculating—an unsatisfactory situation where the conviction of a person will often turn on the decision.
• Proposals for Change will have Little Effect. Since no one has proposed that suspects actually be forced to speak, by use of contempt laws or other mechanisms, it is argued that the actual effect of allowing inferences to be drawn from silence will be small. Drawing inferences from silence will only be ‘reasonable’ where the accused has offered a defence at trial which he could reasonably have offered under questioning. But it is by no means certain that the effect would be small. In addition, the dangers for the suspect outlined above remain, as does the danger of improper inferences being drawn.
757. A ‘perfect’ right to silence would require the prohibition of inferences from silence, no external pressure to speak, and knowledgeable decision making. This is not capable of total realization, since most people feel strong social pressures to be co-operative, to answer questions, and no one likes to appear guilty. There is generally a considerable imbalance in the power relationship in any encounter between law enforcement officers and suspect.[46] The law enforcement agency will focus special attention on a suspect who declines to answer relevant questions and the tribunal of fact may well draw negative inferences from silence, even if it is told not to.[47] Considerable pressures to speak exist whatever the legal position.[48] The debate is between those who argue that the possibility of negative inferences from silence will, in reality, compel suspects to speak and those who argue that inducement is different from compulsion[49] and argue that the law of evidence should generally permit inferences rationally suggested by common sense, because evidence is then more generally accorded its real weight and the tribunal of fact is not required to perform mental gymnastics.
758. Proposal on Inferences from Silence. The ‘right to silence’ has been the subject of vigorous attack.[50] The argument is that it prevents the securing of convictions against those who have broken the law. The evidence, however, is not compelling.[51] The Australian Law Reform Commission, in its Interim Report on Criminal Investigation, stated that the ‘onus is on those who would change the present position’ and concluded that ‘the arguments in favour of changing the present position are not sufficiently persuasive to justify making that recommendation’.[52] Nevertheless, there is considerable uncertainty as to the present position of the law in this area.[53] It is proposed that it not be permissible to draw inferences from the silence of the suspect/accused in response to questioning by law enforcement agencies.[54] This is probably not the present position since the weight of authority seems to favour the view that partial silence may form the basis of an inference of consciousness of guilt. It is thought, however, that to permit inferences to be drawn is fundamentally unfair because to do so penalises an accused who may have been relying on his rights. In addition, to permit inferences to be drawn would effectively defeat the right. The proposal addresses the particular criticisms made of the law.[55] It should be noted, however, that this approach would not prevent the court drawing negative inferences from the failure of the accused to tell the police of an alibi or defence, later advanced at trial.[56] Other options that have been considered but not adopted are:
• No Inferences of Adoption. As noted above, this seems to be the position most favoured by existing authority. While an accused’s silence in response to official questioning cannot constitute an adoption by conduct of another’s assertion (of guilt), it may show ‘consciousness of guilt’ (eg, where the silence is only partial). This approach has its theoretical problems[57] but presents a balance between a desire to protect someone who seeks to rely (whole heartedly) on his right to silence, and the perception that silence may constitute strong evidence of guilt. It is criticised above.[58]
• All Reasonable Inferences. This option is partly based on the criticisms of the ‘right to silence’ which have been noted above. It starts with the assumption that the law of evidence should generally permit inferences rationally suggested by common sense. ‘In personal and private business relationships we expect responses from persons accused of wrongdoing. Silence in the face of accusation by no means establishes guilt, but it does point in that direction’.[59] Certainly the pursuit of rationally based determinations of fact must be limited by principles of humane treatment. Compulsion of admissions is inhumane, largely because it seems cruel to force people to do serious harm to themselves. But arguably there is, as the Privy Council asserted in Haw Tua Tau v Public Prosecutor[60] a distinction between compulsion and inducement. Even if the difference is largely one of degree, it may not be wrong to encourage indirectly an individual to forego his right to silence. But the central point is that the position between individuals is different from that between an individual and the State. The State can bring to bear especially powerful pressures on the individual (to speak, and to admit guilt). The other concerns listed above also justify rejection of this approach.[61]
• All Reasonable Inferences where Individual Protected. Greenawalt argues:
The moral right to silence should not be viewed as a right to be released from all the normal influences to respond to accusations. Rather, it should be viewed as a right to be free of the especially powerful compulsions that the State can bring to bear on witnesses.[62]
This option would permit inferences from silence if substantial safeguards are introduced—the presence of a lawyer (thus encouraging the police to ensure such a person is in fact present), reliable evidence of the interrogation, and a requirement that there was substantial evidence justifying the interrogation (something approximating the ‘probable cause’ safeguard of US search and seizure law).[63] Communication problems may be largely overcome by the presence of a lawyer; the danger that the law enforcement officer may misconstrue what a suspect has or has not said is avoided by an accurate independent recording system. There is little reason to suppose that adverse inferences from silence will lead to unacceptable methods of coercion if the interrogation is accurately recorded and an independent person is present. A requirement of substantial evidence of guilt before modification of the right occurred would avoid the danger of arbitrary selection by law enforcement authorities of persons to be prosecuted; and the presence of an appropriate, independent person will ensure that the ignorant and weak are properly protected. The basis of this alternative is the view that, if the prosecution could introduce a suspect’s pre-trial silence as evidence, suspects would have a substantial, rationally based incentive to talk to investigating authorities. Such an incentive is more consonant with recognition of the dignity of suspects than many tactics now permitted. On the other hand, it would be likely that lawyers would ensure that they were not present during official questioning (having told their client to say nothing) if this approach were adopted. Alternatively, the lawyer may advise the client to say nothing, on the basis that no negative inference could reasonably be drawn where the client is seen to be acting on legal advice.
759. Exclusion of Evidence not Proposed. It is not proposed to exclude evidence of admissions (or particular types of confessions) when tendered against an accused person.[64] Certainly, exclusion has a number of attractions.[65] But law enforcement agencies argue that it is mythical to say that they need only a look at the scene of the crime to find clues that will lead them to the offender and establish guilt. They argue that there are many cases where the only solution is to interrogate the suspect.61 Some crimes, where physical evidence is inconclusive and neither a victim nor another witness can make a convincing identification, can be solved only if a suspect confesses or makes damaging admissions.[66] The importance of the confession should not, of course, be over-estimated. Analysis has revealed that confessions are obtained largely in cases in which the evidence against the accused was already strong, if not overwhelming.[67] [68] Thus confessions in such cases may not have been necessary to secure a conviction. But the fact that admissions made by an accused are important, if not crucial, evidence in a significant number of cases means that general exclusion is inappropriate.
760. Report on Criminal Investigation. The issue of controlling the admissibility of evidence of admissions in criminal trials arose in the Australian Law Reform Commission Report No 2 (Criminal Investigation) as a subsidiary question to the primary issue of the control of the investigation of criminal offences. In that report it was proposed:
• The common law voluntariness rule, resulting in the automatic exclusion of confessional evidence involuntarily obtained, should be incorporated in the legislation in modified form. Confessions extracted by violence or the threat thereof should be deemed involuntary, but other forms of inducement should not produce that result unless they are held likely to have caused an untrue admission to be made.[69]
• There should be procedures introduced for ensuring the reliability of confessional evidence and minimising contests as to the circumstances in which it was obtained. Interviews should preferably be (a) recorded by mechanical means or (b) corroborated by a third person and, if these measures are not practicable in the circumstances, (c) checked by a third person after being reduced to writing, or at least (d) reduced to writing and signed by the accused.[70]
• A failure to employ safeguards in circumstances where it was practicable to do so should prima facie result in the exclusion of the evidence. Even if the confessional evidence is declared admissible after application of the reverse-onus discretionary rule of evidence, the failure to employ safeguards should be treated by the tribunal of fact as going to the weight of such evidence, and legislation should provide accordingly.[71]
The Commission remains of the view that the proposals in that report, including recommendations for change to the law, should be implemented as the minimum standard to be adopted in the investigation of criminal investigation. In this Interim Report, however, it is the duty of the Commission to explore the rules of evidence, as opposed to investigatory rules, which relate to confessions and admissions obtained in the course of the investigation of crimes. That exploration has revealed serious criticisms of the voluntariness test relied upon in that report and of the discretions employed in this area by the courts.[72] To address these criticisms satisfactorily is difficult. It behoves the Commission in this Interim Report, however, to advance possible options so that these issues can be considered. In the meantime, the Commission’s views as to the desirability of implementation of the recommendations in Report No 2 (Criminal Investigation) remain unchanged.
761. Rationale of Existing Rules. There is considerable uncertainty and disagreement about the rationales of the various controls imposed on the admissibility of admissions in criminal proceedings (‘confessions’).
• Requirement of Voluntariness. From the eighteenth century, a confession has not been admissible evidence unless it has been shown to be ‘voluntary’. This rule originated in reliability concerns, but it is clear that other policy factors have played a role in its development and justification. Suggested factors include:
― An involuntary confession cannot be assumed to be reliable (ie probably true);[73]
― Because of doubts about the ability of juries to assess such a confession’s reliability and probative value, it is preferable to withhold such evidence from them;[74]
― An involuntary confession involves an accused being made to incriminate himself[75] in negation of the ‘right to silence’;
― The Crown is obliged to prove its case without the aid of the accused;[76]
― Improper police methods should be discouraged (the ‘disciplinary’ principle);[77]
― The courts should not be seen to condone improper police methods (judicial legitimacy);
― An issue of due process is involved (eg protecting an individual’s rights by ensuring he is not denied something to which he is entitled or subjected to treatment which is improper).[78]
• Discretion to Exclude on Unfairness Grounds. This discretion developed initially in England as a result of the adoption by the courts of a narrow test of voluntariness.[79] Again, its rationale is a matter of considerable uncertainty. On the one hand, there is a concern for confessional reliability and the ability of juries to assess that reliability. On the other hand, although there does not seem to be an expression of the public policy concerns noted above with respect to the voluntariness rule, there are judicial statements emphasising that a suspect should be protected from improper pressures to speak, and accorded procedural and substantive fairness during the criminal investigation.[80]
• Discretion to Exclude Illegally or Improperly Obtained Evidence. This discretion clearly relates to one specific concern—the balance of public interest. Where evidence has been obtained illegally or improperly, the courts must balance the public interest in convicting a criminal against the public interests favouring exclusion. The discretion is exclusionary in form, on the premise that relevant evidence should be admitted unless there is a good reason to exclude it. However, the public interests justifying exclusion of the evidence are not clearly articulated, and there is some uncertainty as to the considerations relevant to exercise of the discretion.[81]
• Discretion to Exclude Prejudicial Evidence. This discretion is applicable generally to evidence adduced by the prosecution against a criminal defendant. It derives from a concern to protect the accused from unduly prejudicial evidence—prejudicial because it may be given too much weight or because it may lead to conviction on an improper basis. This concern in turn reflects both a desire to ensure accurate fact finding and a policy attempting to ensure that innocent persons are not convicted. It is clear that this discretion applies to confessional evidence.
The controls over the admission of confessions generally reflect a mixture of a desire to maxitriise evidentiary reliability and an attempt to protect the interests of the individual in relation to State interference, deter misconduct and ensure judicial legitimacy.[82] This has led to the complexity of the existing law in the area of confessional evidence and the uncertainty as to the scope and content of each rule or discretion. The issues, however, can be classified into two categories—the truth of the admission and public interest concerns. The attempt should be made to address these policy concerns separately. This holds open the possibility of rationalising and clarifying the law. It is therefore proposed to consider the two issues of evidentiary reliability and public interest separately. The latter issue will be considered below and proposals advanced to deal with illegally or improperly obtained admissions.[83] In the remainder of the chapter, the issue of evidentiary reliability will be considered: There are two facets—the truth of the admission and the reliability of the evidence of the admission.
762. Truth of Admissions. The primary justifications for the hearsay rule are directly relevant to this area. While it is permissible to adopt the generalisation that an assertion against interest by a person suspected of a criminal offence is more likely to be true than hearsay evidence in general, not all confessions are reliable (true). The importance of a confession is such that safeguards may be necessary to maximise its truth. Of course the question of its truth could be left to the tribunal of fact.[84] Adopting this perspective for evidence of admissions, many commentators have argued that the eighteenth century conditions which justified the introduction of the voluntariness rule no longer exist. The accused may now give evidence, the substantive criminal law is less harsh, police forces have improved in quality, juries are more knowledgeable, suspects are less ignorant. But:
(a) There is no guarantee that the tribunal of fact would be able to forget a confession even though it had concluded that it was likely to be untrue and should, therefore, be ignored.
(b) Where there is a danger that the tribunal of fact will give evidence too much weight (in this case, conclude that the confession is more reliable than it really is), there is a case for requiring the judge to make the initial determination of fact. Of course, any sort of evidence may prove to be misleading and admissions should not be automatically excluded on that ground. But the dangers do justify some judicial oversight, particularly as the tribunal of fact is unlikely to be fully familiar with the effectiveness of psychologically coercive techniques.
(c) A confession is such important evidence that it should not be used unless the judge is satisfied that it is likely to be true. Certainly an accused may now give evidence to attack the truth of a confession he is alleged to have made, but this opportunity does not negate from the importance of the evidence, or its impact on the tribunal of fact.
(d) The traditional concern of the criminal justice system to minimise the risk of an innocent man being convicted supports the view that an additional judicial safeguard should be introduced.
(e) There is a particular justification for judicial assessment of the truth of a confession when it is the State itself that adopts methods which (unnecessarily) increase the possibility of an inaccurate determination of fact.
763. While the importance of an admission in a criminal case is such that its truth should be maximised, it is difficult in the present state of knowledge to articulate relevant factors for a direct test. It is virtually impossible to distinguish between circumstances which cause an admission to be made but do not adversely affect its truth and those that are likely to do so. It seems that the concern for the truth of admissions can, in this context, only be met indirectly.
764. Factors that affect the voluntariness of a confession are likely also to affect its truthfulness. If the tactics of interrogation which might induce the guilty to confess truthfully are the same as those which may induce the innocent to confess falsely, then the use of interrogation techniques will always ‘,)e associated with some level of risk that false confessions will be obtained. That risk may be particularly serious where the only issue is one of the suspect’s intent or mental state at the time the crime was committed. It is not proposed, however, to recommend retention of the voluntariness test. It is unsatisfactory because of uncertainty about:[85]
• the precise meaning of ‘voluntary’ and the related concept of ‘free choice’ in the test;
• the relationship between the ‘voluntariness test’ and the specific rules relating to threats and promise,: by persons in authority and the context of those rules;
• the meaning and relevance of ‘oppression’;
• the relevance of the use of deception;
• the relevance of personal characteristics of the accused;
• whether the test applies only where there has been (police) misconduct;
• whether there always needs to be a causal link between the external conduct and the confession;
• whether the test, and its subsidiary categories, are primarily subjective or objective.
765. Proposals to Enhance Truth of Admissions. A number of options may be considered:
• Strict Rules. One solution would be to impose limits on the specific techniques adopted by law enforcement agencies in interrogation. Techniques which are perceived as particularly likely to substantially impair the mental freedom of a suspect may be prohibited, and any evidence produced as a result of them excluded. If interrogators engage in acts of violence, threats of violence, torture or inhuman, degrading or oppressive conduct, then an admission made subsequent to such conduct may be untrue, regardless of the characteristics of the suspect being interrogated. On the other hand, if the interrogators offer the suspect a mild inducement (‘It would be best if you told the truth’) it is not likely to affect the truth of subsequent admissions. But a substantial inducement (‘If you confess, the interrogation will stop and we will only prosecute you for a minor offence’) may well be likely to render unreliable a subsequent admission. Further discussion of this area will be deferred until consideration of the public interest aspects of police misconduct. Nevertheless, interrogations inevitably involve a complex mixture of pressures and it would be unsatisfactory to pick out a few extreme techniques and ignore the combined effect of others. Further, such an approach cannot be entirely satisfactory as it cannot provide a general control but only one related to specific types of conduct.
• Procedural Safeguards. Another alternative is to adopt procedural safeguards designed to maximise the probability that any confession made will in fact be voluntary. This is the American approach developed by the Supreme Court in the decisions of Escobedo[86] and Miranda.[87] Such safeguards are considered below in the context of ensuring the reliability of evidence of an admission. If a suspect is informed that he has a right to remain silent, that he cannot be compelled to admit (or say) anything, then the pressures on him will be reduced. If the suspect is informed of his right to a lawyer (or some other appropriate person) and chooses to have such a person present during the interview, studies[88] indicate that the effectiveness of manipulation of the interrogation environment by the police can be substantially reduced. Again, an approach laying down procedure cannot provide a complete control—it has potential to reduce difficulties significantly, but cannot provide the court with rules to deal with all cases.[89]
• Ordinary Man Test. Another option is to adopt an objective test based on the hypothetical person of average or ordinary firmness, a construct of common experience. This approach has been suggested by an American writer, Joseph Grano.[90] In analysing cases at different extremes, such an approach provides a straightforward solution. The need for confessions has never been perceived as great enough to justify pressures that a person of ordinary firmness could not resist. In evaluating mental freedom we can usually do no more than decide whether a person’s choice to yield to pressure is understandable, and this judgment depends to a great extent on our perception of what the ordinary or average person would do .:a similar circumstances. But, a basic sense of justice would suggest that the law cannot hold a child or gravely ill person to the same powers of resistance as the normal adult. A mental freedom test cannot remain true to fundamental normative judgments unless it incorporates at least some of the accused’s individual characteristics. Grano suggests that the test can remain objective by selecting only those factors that moral considerations demand and practical considerations permit. Characteristics that are feigned easily—eg, a high level of suggestibility – and difficult to verify properly may be excluded, much as they are in every day discourse and in the substantive criminal law. Nevertheless, it is suggested that a subjective test should be retained if possible. There can be no doubt that the effect of various techniques of interrogation will vary depending on the personality and condition of the particular interviewee. Moreover, characteristics of an interviewee which render him or her particularly susceptible to psychological manipulation may not be readily apparent to the officer interrogating. A resulting admission may well be untrue regardless of whether the officer should or should not have been aware of those characteristics.
• Modified Voluntariness Test. The Australian Law Reform Commission Report on Criminal Investigation, proposed the retention of a modified voluntariness rule. It deemed involuntary confessions obtained in consequence of the use (or threat) of physical violence and those obtained as a result of the ‘making of a promise, threat or other inducement ... likely to cause the person to make a confession that is untrue’. This approach provides more assistance to the trial judge than the present law, and avoids some of the problems with inducements. It would be desirable, however, to add a provision that could take into account the characteristics of the person being questioned. The US Model Code, for example, after including provisions similar to the above, added that a confession would only be admissible if ‘the accused when making the statement ... was capable of understanding what he said and did’. The main disadvantage of the test is that it retains the voluntariness concept which is open to serious criticism.[91]
• A Truth Test. A final option is to require the trial judge to be satisfied on the balance of probabilities that the admission was made in circumstances that were not likely to affect its truth adversely. The trial judge should determine, as a preliminary issue, whether the reliability of the admission may have been impaired by the way it was obtained. The judge should consider all the circumstances, including the characteristics of the person making the admission. In making this decision he should take into account a number of factors—whether there was misconduct by those interrogating, whether procedural safeguards were adopted, whether the ability of the person making the admission to make rational decisions was substantially impaired. It would also be relevant to this question whether other incriminating evidence was discovered or obtained as a consequence of the admission being made. In comparing this approach to the voluntariness approach regard must be had to the total package—including exclusionary discretions. A critical issue is whether such a proposal is likely to give more or less protection to the accused.
766. It is proposed, first, that there be an exclusionary rule excluding evidence of admissions where an interrogation has employed methods of extreme coercion like physical violence.[92] In addition, it is proposed to adopt the last option considered above. It is proposed that the suspect’s characteristics be taken into account in determining whether the circumstances were such as to be likely to adversely affect the truth of the admission. It is further proposed to include a presumptive provision whereby an admission made during police questioning will, if made in the presence of the accused’s lawyer after appropriate notification of rights, or stated by the accused in the voir dire to be true, be presumed to have been made in circumstances that were not likely to adversely affect its truth. This is, however, an evidentiary presumption only, in that the onus of proof remains on the prosecution and will need to be discharged if the accused leads evidence to the contrary of the presumption. An issue to be considered, however, is the extent to which the presumption would be available in practice; in particular, is it likely, for example, that the lawyer would advise his client to say nothing and, having done so, leave? If he did, the first basis for the proposed presumption would not be satisfied.
767. Reliability of Evidence of Admission. No rules have been developed under existing law to improve the reliability of the evidence of admissions and confessions or the evidence of the circumstances in which they are made. In criminal trials this has resulted in assessment difficulties, abuses (for example, perjury) and waste of time and excessive cost.[93]
768. Proposal on Reliability of Evidence of Admissions. A number of options exist:
• Judicially Supervised Interrogations. One option is to require judicially supervised interrogations, courts admitting only confessions obtained through such a procedure.[94] Such an approach might provide a more effective device for investigation than presently available. Law enforcement agencies would be assured that any statements obtained before the judicial officer will be admissible at any ensuing trial. They would be protected from allegations that statements had been obtained from the suspect by improper methods or had been tampered with or suppressed. Although the proposal would not guarantee the elimination of all improper conduct, it would go a long way toward ensuring that while in custody accused persons are treated in a manner which corresponds with our conceptions of human dignity.[95] The time-wasting, undignified, and often inconclusive arguments, which now take place at a voir dire in attempting to determine if a statement was given voluntarily would be eliminated. Perhaps as important as any other advantage, such a proposal would tend to eliminate the discrimination between the knowledgeable and the naive. But the arguments against this option are very strong. Perfectly reliable evidence may be excluded. Also, the judicial officer, acting conscientiously, would not attempt to use any techniques of interrogation to obtain a confession, even where there is no evidence that a particular technique may result in unreliable confessions or unduly endanger human rights. In consequence, the number of confessions made would reduce in number, leading to a reduction in the number of guilty people convicted. The formal nature of the procedure itself may cause silence in the people questioned. While the proposal would preclude the admission of improperly induced confessions, it would not necessarily restrict coercion which might occur before the judicial interrogation. Despite possible reduction in costs due to reduced argument over the admissibility of confessions, the expense of such a system of judicial supervision may well be enormous. It could require magistrates or other judicial officers to be present twenty four hours a day to enable the police to begin asking questions when they thought the case against a suspect was strong enough. Otherwise delays may occur, with possible repercussions on the content of any statements made by the suspect.[96] The public reputation of the judiciary for impartiality might suffer if they were brought into the investigatory process. The judicial officer might have to be called as a witness as to what was said, which would be both inconvenient and embarrassing for him. Nevertheless, to reject judicially supervised interrogation as a universal requirement for admissibility does not necessarily mean that it cannot be used in conjunction with other controls.
• Proof of Reliability of Evidence. The present legal position seems to be that the trial judge need only be satisfied that a jury could reasonably conclude that the confession was made. Given the desire to obtain reliable evidence of the alleged confession, an option would be to require the prosecution to satisfy the trial judge that it was in fact made,[97] and is accurately reported. Such a requirement, however, would involve the trial judge in a potentially long inquiry into the circumstances in which the confession was allegedly made, and sometimes require a decision to be made on the basis of credibility factors. The number of unreliable confessions (in the sense of inaccurately reported or simply fabricated) may not be large enough to justify this approach.
• Procedural Requirements. The Australian Law Reform Commission proposed, in its report on Criminal Investigation, the introduction of a number of procedures for ensuring the reliability of evidence of confessions.[98] There is a very strong case for introducing such procedural requirements:
(a) Tape Recording. An independent and accurate record of what transpired will be likely to reduce considerably the amount of court time spent arguing over the circumstances in which the confession was obtained.[99] In general, it is dangerous to place absolute reliance upon any particular thing said in an interview. So much depends upon the context in which it is said the way it is said and the emphasis on a word or phrase. Tape recording will provide that context and minimise the risk of error or misunderstanding. It can also assist the police to convict criminals. Juries may be becoming increasingly suspicious of oral evidence of confessions. Indeed, a prosecution may fail if based on this type of evidence. American experience shows that recordings (film or tape) are particularly effective in supporting the genuiness of a confession. The tape may help to show that no improper inducement operated to produce the confession. If the tape shows the suspect at first denying guilt and then admitting it when told of the evidence against him, this may be convincing evidence that the confession was true, and was not merely the result of inducement. It is often difficult for the officer concerned to remember exactly what was said in an interview when writing a note afterwards. If the officer gets the details wrong and this is proved in court, his account of what was said will be discredited even though the discrepancies are unimportant. A tape recording protects him from this embarrassment. A corollary of many of the above points will be an increase in the number of guilty pleas, derived from the fact that a defendant will normally realise that his taped confession makes attack on the evidence of his admissions hopeless.
(b) Presence of Third Person. The presence during interrogation of an appropriate third person will also confer a number of benefits.[100] The third person would be able to provide an account of what occurred during the interrogation and what was admitted by the accused. His presence should help to ensure proper conduct. Furthermore, the accused may be extremely nervous or may possess limited verbal skills. A person may be able to give a ‘good’ or ‘bad’ account of the truth. The third person will be able to aid in ensuring that investigating officers hear a well presented and help to clarify the questions put and the answers of the accused.[101] The record of the conversation should then reflect more clearly what was said and what the defendant wished to be understood as saying. A further option is to have a senior officer present. The Beach Report, however, regarded the Victorian procedure of checking by an ‘independent police officer’ with dismay: ‘the present procedure in so far as it relates to complaints is worthless in practice and may well cause grave injustice to an accused person at his trial’.[102] In a recent NSW study, one accused did not deny that he had told independent police officers that he had no complaints but he explained this by claiming that he felt that it would be ‘pointless’ to complain to another police officer. In another case, an accused said that he was afraid that he would be hit if he did not ‘agree’. If the accused’s version was right, namely that physical violence was inflicted and threats were made when the record of interview began, it is not surprising that he regarded it as ‘pointless’ to complain.[103]
It is proposed that consideration be given to strengthening the Australian Law Reform Commission Report No 2 proposal by providing that evidence of admissions made in the course of questioning by law enforcement agencies be inadmissible unless the admissions were recorded or an appropriate third person was present or it was not reasonably practicable to provide those safeguards. It is not proposed to list factors which the court should consider when deciding whether a particular procedure was reasonably practicable. Rather, the court will impose the appropriate standard after hearing ‘evidence of objective facts which will not be open to dispute in many cases—the availability of a tape recorder or an independent witness’.[104] The test is intended to be flexible, permitting courts to take into account factors like availability, location of the questioning, seriousness of the offence, and other relevant factors which will vary from situation to situation and over time.
769. Adoption of Documents. A problem arises in criminal trials where a document is read to, rather than by, a party. The weight of authority supports the view that the document is admissible as an adopted admission if the party signs it, but not if he makes only an oral acknowledgment. In the former situation he is held to adopt the document, in the latter to adopt only the statement of its contents. The distinction may be criticised on the basis that the party can only acknowledge the truth of the words spoken, whether the acknowledgement is oral or takes the form of signing the document. It can be argued, however, that the party who signs the document in this situation is also asserting that he believes that what was said to him accurately represents the contents of the document. As at present, whether that belief was justified would be something that can be assessed by the tribunal of fact. As at present, if only the words spoken are acknowledged, evidence may be given of what those words were.[105] It could be argued that the document itself should be admitted as evidence of what was read out if the person who read it out gives evidence that he read it out accurately to the parties. But the probative value of the document, over and above the probative value of oral evidence of its contents, is small. Moreover, there is the danger that undue weight may be given to the document on the issue of whether it was in fact adopted by the party. The document itself should, therefore, not be admissible unless adopted in writing, both because of a concern for accurate fact-finding and to ensure the appearance of fairness.
770. Operation of Proposals. The controls advanced relate to the actions of officers of law enforcement agencies and affect the admissibility in federal and Territory courts, of evidence obtained by them. It is necessary to define such officers widely and the definition includes members of State police forces. It would be undesirable to impose a dual regime on crime investigation by such officers and to do so indirectly through rules of evidence. It is believed, however, that the proposals should not have this effect. The bulk of the proposals will be satisfied if State officers observe State law. The only exception is the proposal that interviews with suspects must be tape recorded or a lawyer, friend, or other specified person must be present and even this requirement does not have to be satisfied unless it is reasonably practicable to do so. Further, State officers investigating federal offences would normally bring proceedings in State courts and they can continue to do so. There is only a limited number of offences which could be dealt with in both State courts and the Federal Court.[106] The issue, however, is one that should be explored. In considering the issue, it should be remembered that, in the absence of a single legislative statement, federal law enforcement agencies must comply with the rules that differ between the States and Territories.
[1] ie the other party in civil litigation or the prosecution in a criminal trial.
[2] From now on the term ‘party’ will be used as a shorthand for party/accused. The question of whether an admission is any assertion made by a party and adduced by an opponent, or must also be against the party’s interests at trial, is considered below, para 755.
[3] A more precise term would be ‘admitted’, but to avoid confusion this alternative expression will be adopted.
[4] Further, a patty can hardly object to his own failure to make the assertion on oath, or subject to the law of perjury.
[5] However, this does not provide an historical justification for the admissibility of admissions, since admissions were accepted in evidence long before parties were, in 1851, made competent witnesses. It should also be noted that there may be no opportunity for self-explanation where the admission was made by someone else (and deemed to be made by the party).
[6] See above, para 667-71.
[7] See above, para 421, 664-5.
[8] There may also be cases where the statement when made was in the interests of the maker or perceived by him to be so. It is thought that such cases would be relatively infrequent.
[9] Although one might note the problem, particularly where the police give evidence of an oral admission, of assessing the reliability of that evidence.
[10] JH Wigmore, Evidence in Trials at Common Law, 3rd edn, Little, Brown & Co, Boston, 1940, vol 4, initially argued that admissions are received in evidence as tending to show that the party had conducted himself in a manner inconsistent with his present claim-like prior inconsistent statements by witnesses to discredit their testimony—and not to prove the truth of the contents of the statements. However, this analysis is unacceptable since admissions are used as evidence to prove the truth of the matters contained in them.
[11] PB Carter, Cases and Materials on Evidence, Sweet & Maxwell, London, 1981, 354; RW Baker, The Hearsay Rule, Pitman, London, 1950, 30; EW Cleary (ed) McCormick’s Handbook of the Law of Evidence, 2nd edn, West Publishing, St Paul, 1972, para 262.
[12] See above, para 135 and Appendix C, para 112.
[13] A court’s discretion to exclude such evidence might not always be applied.
[14] On a similar analysis, a plea of guilty, subsequently withdrawn, may be used as an admission. See Appendix C, para 112-3.
[15] Particularly since another possible rationale for the orthodox view (an assumption that the party is estopped from explaining away an admission) is not good law. See in Singleton v John Fairfax and Sons Ltd [1982] 2 NSWLR 38, 49-51 (Hunt J).
[16] See Federal Rules of Evidence (US) r 801(d)(2)(A).
[17] See cl 3(1) (definition of ‘admission’).
[18] Although this is less true if the assertion is admissible only if made in the course of the conspiracy.
[19] eg the closeness of the association between the party and third party (both at the time when the assertion was made and at trial), the third patty’s degree of (probable) knowledge with respect to the subject matter of the assertion, and the extent to which the assertion is one of fact or opinion.
[20] eg where the third party was a predecessor in title of the party.
[21] Because of problems a party may have in attacking the reliability of a statement by a person in privity with him, no special exception to the hearsay rule is proposed for this category. However, it is envisaged that much of this presently admissible evidence would continue to be admissible under the hearsay proposals—chiefly where the person in privity is not available to give evidence—subject to the safeguards in those proposals.
[22] The judge will make provisional findings with respect to these matters. They will not be conclusive or binding on a jury—should it be relevant for it to decide the same issues.
[23] See Tripodi v R [1961] HCA 22; (1961) 104 CLR 1, 7.
[24] The evidence of A’s acts may be considered with evidence of B’s acts and collateral circumstances to prove such common purpose in conspiracy cases, but not in substantive crime cases: R v Associated Northern Collieries [1911] HCA 73; (1911) 14 CLR 387, 401; Tripodi v R [1961] HCA 22; (1961) 104 CLR 1, 6; R v Corak (1982) 30 SASR 404, 405.
[25] The existence of the common purpose is an issue which the, jury will have to finally decide—cf JA Gobbo, D Byrne & JD Heydon (ed) Cross on Evidence, 2nd edn, Butterworths, Sydney, 1979, para 18.113, where the situation is described as one of conditional admissibility.
[26] eg, the four points of the compass, the number hours in a day, the age of a person.
[27] There may be an argument for drawing a distinction between civil and criminal proceedings or between admissions made by parties and those made by ‘agents’. But the evidence will also be subject to the discretion to exclude evidence where probative value is outweighed by the disadvantages of admitting it: See Federal Rules of Evidence (US) 801(d)(2)(B); JB Weinstein & MA Berger, Weinstein’s Evidence Matthew Bender, New York, 1979, vol 4, 801-156; New South Wales Law Reform Commission, Working Paper, The Rule Against Hearsay, Govt Printer, Sydney, 1976 (NSWLRC WP 1976), s 14J(2)(1), para 3.153; New South Wales Law Reform Commission, Report No 29, The Rule Against Hearsay, Govt Printer, Sydney, 1978 (NSWLRC 29) 87(3).
[28] See above, para 743.
[29] It might be argued that such evidence is not available to prove the truth of the facts asserted. But it is difficult to see how an assertion which alters the scope of another assertion (which is itself available to prove the truth of the facts asserted) is not used to prove the truth of the facts asserted.
[30] But cf NSWLRC WP, 1976, para 3.153, 3.200-3.203, s 14J(6). However, see also NSWLRC 29 para 4.15.4-7.
[31] Sorby v The Commonwealth [1983] HCA 10; (1983) 57 ALJR 248, 253 (Gibbs CJ). Article 14(3)(g) of the International Covenant on Civil and Political Rights provides that everyone has a right ‘not to be compelled to testify against himself or to confess guilt’: See L Henkin (ed) The International Bill of Rights, Columbia University Press, New York, 1975.
[32] A suspect should know of his or her right to say nothing, to not be compelled to say anything. If people are not informed of their rights, those who are better educated or have previous experience of official questioning will have an advantage over those who are less well educated and have no such experience: see Australian Law Reform Commission, Interim Report No 2, Criminal Investigation, Aust Govt Publishing Service, Canberra, 1975 (ALRC 2) para 99.
[33] Institute of Criminology Proceedings, Sydney University Law School, The Right to Silence, No 17, Sydney, 1973, 114 (Neasey J).
[34] ibid.
[35] K Greenawalt, ‘Perspectives on the Right to Silence’ in R Hood (ed) Crime, Criminology and Public Policy, Heinemann, London, 1974, 235, 265.
[36] See Appendix C, para 118-20.
[37] Committee of Inquiry into the Enforcement of Criminal Law in Queensland, Report, Govt Printer, Brisbane, 1977 (Lucas Committee) para 192.
[38] One alternative would be to compel answers but prevent them being used as evidence against the accused—a result, in the trial, similar to the right to silence. See E Ratushny, Self Incrimination in the Canadian Criminal Process, Carswell Co, Toronto, 1979, 405.
[39] Royal Commission on Criminal Procedure, Report, England and Wales, HMSO, London, 1981 (Phillips Commission) para 4.46.
[40] id, para 4.43. But note that no attempt appears to have been made to check the authenticity of the alleged admissions.
[41] See Australian Law Reform Commission, Report No 2, Criminal Investigation. AGPS, Canberra, 1975 (ALRC 2) para 149, fn 242.
[42] N Stevenson, ‘Criminal Cases in the NSW District Court: A Pilot Study’ in J Basten, M Richardson, C Ronalds, G Zdenkowski (ed) The Criminal Injustice System Aust Legal Workers Group (NSW) and Legal Services Bulletin, Sydney, 1982, 106, 131. However, the sample may be biased since it contained only those subsequently charged.
[43] P Zimbardo & E Ebbesen Influencing Attitudes and Changing Behaviour, Addison Wesley, Boston, 1969.
[44] M Inman, ‘The Admissibility of Confessions’ [1981] Crim L Rev 469, 477-8.
[45] DJ McBarnet, ‘Pre-Trial Procedures and the Construction of Conviction’ in P Carlen (ed) The Sociology of Law, University of Keele Press, Keele, 1976.
[46] It is for this reason that the argument of the Lucas Committee is not accepted. It stated: ‘if it is permissible to base an adverse inference on the fact that the accused has not gone into the witness box after his right to do so or not has been clearly explained to him ... what is the logical reason for prohibiting the jury from drawing such an inference from the fact that he failed to answer questions put by the police? It cannot be said that, having warned a suspect that he need not speak, one should not then penalise him for not speaking, for the situation is exactly the same when the accused person fails to give evidence’. (Lucas Committee, para 194).But, in fact, a suspect in a police station is in a quite different situation from an accused in court.
[47] Greenawalt in Hood, 236-7.
[48] See para 375.
[49] See the judgment of the Privy Council in Haw Tua Tau v Public Prosecutor [1981] 3 All ER 14, 22.
[50] See ALRC 2, para 147.
[51] See para 12-16.
[52] ALRC 2, para 150.
[53] See Appendix C, para 118-20.
[54] Proposals are not advanced for questioning by others. It is in relation to questioning by law enforcement officers that the policy reasons are clearly relevant.
[55] See above, para 367-70.
[56] The inference is from the failure to mention something which was subsequently raised. On an alternative analysis, an inference is drawn from the lack of police opportunity to properly investigate the alibi or defence.
[57] See para 367-8.
[58] ibid.
[59] K Greenawalt in Hood, 245.
[60] [1981] 3 All ER, 14, 22.
[61] See above, para 756.
[62] K Greenawalt, ‘Silence as a Moral and Constitutional Right’ (1981) 23 William and Mary L Rev 15, 40. See also FM Neasey, ‘The Right to Remain Silent’ (1977) 51 ALJ 360, 363, 366-7.
[63] These safeguards would make official questioning analogous to the courtroom where the drawing of inferences from an accused’s silence is presently permitted.
[64] In the Jewish legal system, for example, based on Talmudic law, the prosecution cannot adduce evidence of an accused’s confessions. In a number of South East Asian jurisdictions, confessions made to police below a certain rank are not admissible.
[65] The officer would not be tempted to fabricate admissions, or indulge in misconduct to obtain them from a reluctant suspect. Citizens would be much more willing to cooperate and respond openly to their questions. Investigative questioning (as opposed to questioning to prove guilt) would continue, arguably on a more effective level. Officers would be encouraged to rely more on other investigative techniques to obtain incriminating evidence. The courts would not be placed in the position of having to determine difficult questions of credibility. The enormous time spent by the courts in determining questions with respect to admissions in criminal cases, would be saved: See Ratushny, 272-86.
[66] See in Culombe v Connecticut [1961] USSC 127; (1960) 367 US 568, 571 (Frankfurter J). It is arguable that the criminal justice system is dependent upon people confessing to things they have done—in the lower courts up to 90 percent of people plead guilty to charges to which they have confessed. McConville & Baldwin made a study of 1500 cases in Birmingham and London: M McConville & J Baldwin, ‘The Role of interrogation in Crime Discovery and Conviction’ (1982) 22 Brit J Criminology 165, 166. They found that over 95 percent of defendants who made confessions to the police were ultimately convicted at trial.
[68] ibid. McConville & Baldwin estimated that only about one fifth of the London cases would have been fatally weakened had the defendants statements not been used by the prosecution.
[69] ALRC 2, para 151-3 and 348.
[70] ALRC 2, para 155-62 and 345.
[71] ALRC 2, para 163-4 and 347.
[72] See para 371-9, 382-4.
[73] R v Warrickshall [1783] EngR 60; (1783) 1 Leach 263; 168 ER 234 (KB); Sinclair v R [1946] HCA 55; (1946) 73 CLR 316, 335; DPP v Ping Lin [1976] AC 574, 589 (HL); Rothman v R (1981) 29 CR (3d) 97 (Canadian SC); Cleland v R [1982] HCA 67; (1982) 43 ALR 619, 632, 639. But note that the High Court has emphasised that ‘a statement may be involuntary and yet carry with it the greatest assurance of its reliability or truth’: Basto v R [1954] HCA 78; (1954) 91 CLR 628, 640.
[74] See Dixon J in Sinclair v R [1946] HCA 55; (1946) 73 CLR 316, 333; R v Baldry (1852) 2 Den 430, 442.
[75] See two discussions of the House of Lords: Commissioners of Customs and Excise v Harz [1967] 1 AC 760; R v Sang [1979] UKHL 3; [1979] 2 All ER 1222; and Dixon J in McDermott v R (1948) 76 CLR 501, 513. See also Neasey J in R v Toomey [1969] TASStRp 15; [1969] Tas SR 99, 104 and Deane J in Cleland v R [1982] HCA 67; (1982) 43 ALR 619, 632.
[76] Uniform Law Conference of Canada, Report of The Federal/Provincial Task Force on Uniform Rules of Evidence, Carswell Co, Toronto, 1982, 174.
[77] R v Lee [1950] HCA 25; (1950) 82 CLR 133, 153; R v Wright [1969] SASR 256, 264-5; R v Toomey [1969] TASStRp 15; [1969] Tas SR 99, 104; MacPherson v R [1981] HCA 46; (1981) 55 ALJR 594, 597 (Gibbs CJ and Wilson J); Frijaf v R [1982] WAR 128, 142.
[78] Collins v R [1980] FCA 72; (1980) 31 ALR 257, 270, 274, 322 (Fed Ct); DPP v Ping Lin [1976] AC 574.
[79] See Appendix C, para 145.
[80] Cleland v R [1982] HCA 67; (1982) 43 ALR 619, 632 (Deane J).
[81] See para 468.
[82] It may be argued that this has been the result of ad hoc historical development. Beginning with the introduction of the right to silence, new legal controls have been grafted on to the edifice which preceded them, without any attempt at rationalisation. Rather than attempting to reinterpret, expand or liberalise the existing structure, the courts added new controls.
[83] See para 957-68. Two issues arise in this context. The first is the classification of particular kinds of interrogation conduct as illegal or improper and the question whether the occurrence of that misconduct should have any evidentiary consequences. That, in turn, raises the general question of the treatment of improperly obtained evidence.
[84] See Sinclair v R [1946] HCA 55; (1946) 73 CLR 316, 333 (Dixon J).
[85] See Appendix C, para 130.
[86] Escobedo v Illinois [1964] USSC 152; 378 US 478 (1964).
[87] Miranda v Arizona [1966] USSC 143; 384 US 436 (1966).
[88] SE Asch, ‘Studies of Independence and Submission to Group Pressure’ (1965) 416 Psychological Monographs 70; SW Epley, ‘Reduction of the Behavioural Effects of Aversive Stimulation by the Presence of Companions’ (1974) 81 Psychological Bulletin 271.
[89] In America, a voluntariness rule is retained and operates together with procedural safeguards.
[90] JD Grano, ‘Voluntariness, Free Will and The Law of Confessions’ (1979) 65 Virginia L Rev, 859.
[91] See above, para 371-9.
[92] For further discussion, see para 957-68.
[93] See para 381.
[94] Under such an arrangement consideration could be given to allowing the drawing of negative inferences from a refusal to answer.
[95] Officers would be encouraged to take the accused promptly before a judicial officer in order to get a statement from him. Not only would the accused be secure against statements extracted by tricks, threats or promises, but also he would be protected against the possibility that incriminating statements might be wrongly attributed to him by over-zealous officers.
[96] eg, the suspect has more time to think and reconsider admitting guilt, think upon alibi, etc.
[97] Cleland v R [1982] HCA 67; (1982) 43 ALR 619, 627-8 (Murphy J).
[98] See above, para 760.
[99] R Brandon & R Davies, Wrongful Imprisonment, Allen & Unwin, London 1973, 63. Note: the issue may still remain of allegations of misconduct when the tape was not running. Mistakes occur because interviews are not accurately recorded.
[100] But note the argument over the right to silence, para 758.
[101] Of course, this means that the third person must be able to take an active role during the interrogation—mere passive presence is not enough.
[102] Board of Inquiry into Allegations against Members of the Victorian Police Force, Report, Govt Printer, Melbourne, 1978 (Chairman: BW Beach) vol 1, 103.
[103] Stevenson, 123.
[104] ALRC 2, para 163. Consideration was given to limiting the category of appropriate third person to a magistrate or a lawyer acting for the accused. However, ALRC 2 included a relative or friend of the accused and it is proposed to follow that approach.
[105] The refreshing of memory proposals would apply. The document could be used by the person who read it out to refresh his memory of what was read out. If it did not refresh his memory, but he remembered reading out the document, accurately, then he could read the document out in court. But, under that proposal, the document itself would not be admitted (see para 614-6).
[106] CCH Australia Ltd, Australian High Court and Federal Court Practice, para 20-010f.
771. Rationale. The exclusion, in civil trials, of evidence of convictions to prove the facts on which they are based[1] may be justified on at least two important policy grounds:
(i) Time and Cost. If evidence of a conviction is admitted for the purpose of proving the facts on which it is based, the court is faced with the task of determining those facts and the weight to be attached to the evidence. If done thoroughly in every case, this could involve the virtual rehearing of the previous proceeding.
(ii) Fairness. Considerations of fairness require that a party have an adequate opportunity to test and counter the evidence led. Unfairness may result from the admission of such evidence where the party against whom it is led was not involved in the earlier proceedings and where, as at present, there does not exist the means of having the persons involved called for cross-examination.
There are, however, policy grounds on which the rule may be strongly criticised.[2]
• Excluding Highly Probative Evidence. The rule excludes evidence that can be highly probative—the finding to a higher standard of beyond reasonable doubt, often after a trial contested by the person convicted, or after a plea of guilty. The rule, in treating the conviction as having no probative value, carries the implicit suggestion that a conviction is as likely to be wrong as it is right. The rule can decisively affect the outcome of cases, as in Hollington v Hewthorn[3] itself, where the plaintiff failed, because his essential witness had died, notwithstanding the conviction of the defendant. The rule, therefore, offends the primary objective that the rules of evidence should enable and ensure that all evidence which will assist the court to make accurate findings as to the facts should be received.
• Time and Cost. The rule can add to the time and cost of litigation. It compels the court to reconsider in civil trials, issues that have already been canvassed and resolved in previous criminal trials—again to a higher standard of proof. This involves a waste of community resources and expense for litigants both in the re-litigating of the same matters and the trying of cases which might otherwise have been settled.
• Different Verdicts. There is also the danger of the credibility of the trial system being adversely affected by a civil judgment inconsistent with the conviction.
772. Proposed Rule of Admissibility. The policy grounds warrant admission of such evidence. There are dangers in doing so—particularly in the need, on occasions, to investigate what transpired at the previous hearing. The time and cost of such an exercise may add significantly to the duration and cost of a particular case. There will, however, be many more cases where the fact that the court can be informed of the conviction will properly discourage parties from fighting cases that should not be fought and properly encourage settlement of disputes.[4]
773. The proposal is to make evidence of a conviction admissible against the person convicted (and those claiming through him) in any civil proceedings where it is relevant to the issue to be decided.[5] Reform of the rule in defamation actions has already been considered, and supported, by the Commission[6] and nothing further is added to that recommendation. The proposal involves a number of issues, to be considered separately. There is also a need for ancillary provisions.
774. Limitation—Admissible Against the Convicted Person Only. The proposal has been limited to proceedings in which the person convicted is a party or persons are claiming through him.[7] The narrower reform has been favoured because of the difficulties faced by a stranger seeking to counter the effect of a conviction tendered against him. Since the Duchess of Kingston’s Case,[8] it has been accepted as unjust to bind or prejudice a person with the result of proceedings in which that person was not a party and, therefore, could not be heard. The principal faults of the rule in Hollington v Hewthorn are to be found in cases where the convicted person is a patty in the civil proceeding and it has not be shown to be necessary to go beyond such cases. It is generally agreed that there can be difficulties in weighing the effect of a conviction and, where admitted, it should only assist the determination of facts and not tend to conclude the issue. A third party may be ill-equipped to show possible defects in a conviction. This could lead to it assuming a virtually conclusive effect if admitted against that party. Against the person convicted however, the conviction should be admissible. That person had the opportunity to fully contest the issues, to lead evidence and cross-examine, and to appeal if dissatisfied. He or she can still contest the issue if the conviction is admitted but it is proper that the conviction be available.
775. No Distinction Between Convictions.[9] The proposal renders admissible all convictions, whether by jury or before a magistrate.[10]
• Minor Offences. The South Australian and Northern Territory option admits a conviction ‘other than upon information in the Supreme Court’ only where it appears to the Court that the admission is in the interests of justice. That option has not been adopted, for the reason that minor convictions have probative value according to the circumstances of each case. Where the value is slight, that fact can be taken into account in weighing all the evidence in the case.[11] A vague discretionary bar does not solve the problem of weighing a minor conviction and merely adds to the uncertainty of preparing the civil case for trial. The weight of a relatively minor conviction will often depend upon factors such as a failure to properly defend the charge due to expense, time, embarrassment or other reasons, and the civil court should be able to assess these matters in each case. Another issue that will be relevant on occasions is the extent to which the onus of proof was placed on the accused.
The American option admits only convictions for offences punishable by at least 12 months imprisonment, on the ground that on lesser charges a lack of motivation to defend the charge renders the conviction unreliable. This option is not favoured because it tends to confuse questions of admissibility with those of weight. There is little justification for an arbitrary dividing line, over which convictions are probative evidence and short of which they are not. In Hollington v Hewthorn itself the offence of driving without due care and attention was subject to a small penalty, on a first offence of a fine, and on subsequent offences, a fine or up to three months imprisonment.
• Convictions Upon Plea of Guilty. A plea of guilty is already admissible in other proceedings as an admission against that party.[12] The conviction on the plea is obviously not a finding beyond reasonable doubt but the direct consequence of the plea. To admit the conviction perhaps adds little but it is the logical extension of admitting the plea of guilty. Such convictions are expressly included in the legislation reforming the rule in Queensland and the Australian Capital Territory.[13] They will be admissible under the proposal.
• Convictions by Courts Martial. The proposal includes convictions by Courts Martial and Defence Force Magistrates under the new Defence Force Discipline Act 1982 (Cth), when that Act comes into force.[14] Under the Act service convictions will be of comparable status to ordinary convictions, in that the common law principles of criminal liability are to apply (s 10), the prosecution bears the onus of proof beyond reasonable doubt (s 12) and the criminal law of evidence of the Australian Capital Territory will apply to military hearings (s 146). A Judge Advocate advises the Tribunal in each case on questions of law. The question to be answered is the value of service convictions.[15] Although prior to the new Commonwealth Act there may have been uncertainty about the procedural aspects and sources of military law,[16] it is considered that convictions under the new Act will be of probative value.
776. It may be advisable, although perhaps not strictly necessary, to define a conviction for the purposes of the proposal as not including a conviction that has been set aside, quashed, subject to appeal or in respect of which the person convicted has been pardoned.[17] Where a conviction has been appealed against but the outcome is as yet unknown, the civil court should adjourn the proceedings[18] or not take the conviction into account.
777. Presumptive Effect? The proposal makes no attempt to specify the weight to be accorded to the conviction, nor does it set up a presumption that the conviction is assumed to be correct, so as to place a legal onus of disproof upon the person convicted. In this the proposals follow the South Australian and Northern Territory approach[19] in preference to that taken in Queensland, the ACT and United Kingdom.
778. The main objections to the use of a presumption are that a presumption does not avoid the problem of considering the weight of a conviction and that it unnecessarily adds to the difficulty of showing that the conviction is wrong or unhelpful to the civil issues. A conviction has substantial evidentiary weight itself in any event and needs no presumption that it was justified. It is enough that the convicted person will have an evidentiary onus in the civil proceedings, if he disputes the facts sought to be proved by the conviction. The use of a presumption has also led to difficulties of construction of the legislation in the United Kingdom that remain unresolved[20]—is the conviction a weighty piece of evidence in itself that the accused was guilty, or is it merely a trigger for the operation of the presumption that the accused is guilty, which, if evidence is tendered to resist the presumption, requires other evidence to support the guilt of the accused? In addition,[21] the presumption focuses the civil court’s attention upon the correctness of the conviction, when the more relevant issue is the events and conduct of the accused, not questions of criminal law. A presumption may also tend to allow a plaintiff to rely merely upon a conviction, when other direct, first hand evidence is readily available which would assist the civil court. The proposal is designed to assist plaintiffs to fill gaps in evidence but should not encourage them to become complacent about discharging the overall onus of ‘he who asserts must prove’. The weight to be accorded to a conviction can vary greatly and should be left to the civil court in each case.
779. Safeguards. It is proposed to include a provision that, where a conviction is tendered by A against B, B may apply to the court to require that any witness (‘X’) in the earlier criminal proceedings be called for the purpose of cross-examination by B. The onus to obtain such a witness’ name and address would be upon B and if X was unavailable, the conviction would still be admissible. This provision is primarily a safeguard against the situation envisaged by the New Zealand Committee,[22] that A could tender a conviction obtained mainly on X’s evidence but deliberately refrain from calling X because A fears that X’s evidence is vulnerable to cross-examination. Such tactics would unfairly deprive B of a chance to contest properly the issue presented by X’s evidence. In considering an application that X be called for cross-examination, the court should have an overriding discretion to refuse or grant the application, having regard to matters such as—whether there is a genuine dispute about the conviction or a question relating to it; the importance of the fact which X’s evidence would tend to prove; the availability of any other witness to prove the same fact and whether undue delay or expense would be caused by calling X.
780. This proposal differs from that of the New Zealand Committee, which recommended that a conviction only be admissible to prove the facts on which it is founded where a witness such as X is unavailable, and subject to a judicial discretion. That approach is not favoured because it over-emphasises the significance of the problem of a lack of opportunity to cross-examine. It is not likely to arise in many cases. It is preferable to have a general rule of admissibility with a right to have the contentious witness called, rather than to have admissibility in the first instance depend upon the question of whether a relevant witness is ‘available’. If such a witness is unavailable that may disadvantage B, but admissibility is justified because B has already had opportunity in the earlier criminal hearing to cross-examine relevant witnesses.
781. Proposal. It is recommended that an acquittal not be admissible for the purpose of showing that the person charged was innocent. An acquittal establishes no more than that the Crown failed to prove the accused’s guilt beyond reasonable doubt. It is of such minimal probative value that[23] there is very little to be gained by admitting evidence of it and the disadvantages flowing from its admission are considerable.
782. Proposal. It is recommended that a civil judgment not be admissible to prove the facts on which it is based. Its probative weight is considerably less than that of a conviction. It is founded upon the evidence chosen by the patties, who are not obliged to make available all known relevant evidence, as is a Crown Prosecutor. Further, the standard of proof is merely upon balance of probabilities and so there may be little to distinguish a successful or unsuccessful action by a plaintiff. The disadvantages of admitting evidence of a civil judgment (the potential for waste of time and costs in investigating the judgment, and the greater likelihood of challenge to the evidence) outweigh the minimal probative value of the evidence. An exception is made, however, in respect of grants of probate and letters of administration—as is the case in most jurisdictions.[24]
783. Preservation. The object of the proposals is to produce provisions of general application. It is only after that has been done that consideration can properly be given to the reform of specific provisions which may differ from the general regime. It is proposed to preserve the provisions of s 83 of the Trade Practices Act 1974, which gives prima facie evidentiary effect to convictions under certain sections of that Act, and to preserve laws relating to the admissibility and effect of evidence of convictions -when tendered in defamation proceedings (civil or criminal).[25]
[1] Hollington v Hewthorn & Co [1943] 1 KB 587.
[2] eg by courts: Goody v Odhams Press Ltd [1967] 1 QB 333; Barclays Bank v Cole [1967] 2 QB 738; Jorgensen v News Media (Auckland) Limited [1969] NZLR 961; by Writers: CA Wright ‘Admissibility of Criminal Convictions in Civil Actions—Hearsay’ (1943) 21 Can Bar Rev 653; JA Coutts ‘Effect of a Criminal Judgment on a Civil Action’ (1955) 18 ML Rev 231; Z Cowen & PB Carter, ‘The Admissibility of Criminal Convictions in Subsequent Civil Proceedings’ in Essays on the Law of Evidence, Clarendon Press, Oxford, 1956, 173; and by law reform agencies: see above, para 385.
[4] To date, no problems have been identified in those jurisdictions where the rule has been abolished.
[5] It is not intended that any conviction be tendered in a civil proceeding for the purpose of showing a propensity in the defendant to engage in that conduct, see below, para 784. Rather, a relevant conviction will be one arising directly out of the facts identified with the cause of action in the civil proceeding.
[6] Australian Law Reform Commission, Report No 11, Unfair Publication: Defamation and Privacy, Sydney, 1978, para 299, cl 51.
[7] In this respect the legislation in South Australia and the Northern Territory has been preferred to that in Queensland, the Australian Capital Territory and in the United Kingdom: See Appendix C, para 152.
[8] (1776) 1 East PC 468.
[9] The proposal does not admit evidence of the results of coroners’ hearings or committals—for reasons similar to civil judgments (below). See cl 77(1), cl 3 (definition of ‘legal or administrative proceeding’).
[10] In this respect it follows legislation in Queensland, the Australian Capital Territory and the United Kingdom in preference to provisions in South Australia and the Northern Territory and in the United States Federal Rules—Rule 803(22): See Appendix C, para 152.
[11] See Linehan v Linehan [1924] SAStRp 43; [1924] SASR 276 for an example (at common law).
[12] Moore v Giofrelle [1952] ALR (CN) 1049; Rakay v McFarlane (1960) 78 WN (NSW) 488.
[13] See Appendix C, para 152.
[14] On a day to be fixed by Proclamation, which, it is understood will be delayed because of a number of administrative arrangements and procedures required to be laid down before the Act commences.
[15] Section 11 of the Civil Evidence Act 1968 (UK) admits convictions by a court martial but the Queensland provisions and those in the ACT do not: See Appendix C, para 152.
[16] eg Ferriday v Military Board [1973] HCA 44; (1973) 47 ALJR 579; Re Potters Appeal (1980) 43 FLR 329.
[17] See Evidence Ordinance 1971 (ACT) s 81(b).
[18] Re Raphael [1973] 1 WLR 998; [1973] 3 All ER 19.
[19] Also the Alberta Model—Alberta Evidence Act RSA 70 c 127; Attorney-General’s Statute Amendment Act 1976 c 57. See also Torts and General Law Reform Committee of New Zealand, Report, The Rule in Hollington v Hewthorn, Wellington, 1972, para 25; Law Reform Commission of British Columbia, Report No 30, The Rule in Hollington v Hewthorn, 1977, Vancouver, 38-9; Institute of Law Research and Reform, University of Alberta, Report No 16, The Rule in Hollington v Hewthorn, Edmonton, Alberta, 1975, 13. See also Appendix C, para 159.
[20] See Stupple v Royal Insurance Co [1970] 3 WLR 217; Wright v Wright (1971) 115 Sol Jo 173 and further A Zuckerman, ‘Previous Convictions as Evidence of Guilt’ (1971) 87 LQ Rev 21; CJ Miller, ‘Evidence of Conviction in Civil Proceedings’ (1971) 121 New LJ 573, 598, 622.
[21] Torts and General Law Reform Committee, para 25.
[22] id, para 17.
[23] See Helton v Allen [1940] HCA 20; (1940) 63 CLR 691; Jorgensen v News Media (Auckland) Limited [1969] NZLR 961, 978.
[24] The proposal does not prevent evidence being given of judgments for the purpose of establishing the terms of a judgment or order and its effect—for example, judgments in rem such as divorce decrees or judgments used as a basis for an argument of issue estoppel or res judicata. As to the former, the legislation does not prevent evidence being given of a judgment in rem and tendered for the purpose of proving that it was given. That having been done, it is then conclusive against the world in its effect—eg that the marriage is dissolved. Out of an abundance of caution, however, express provision is made. As to the latter, similarly, the evidence of the judgment is tendered not to prove the truth of the facts found but to prove what was the decision.
[25] Defamation Act NSW 1974 s 55; Australian Law Reform Commission, Report No 11, Unfair Publications: Defamation and Privacy, para 299, cl 51.
784. Scope of the Chapter. This chapter deals primarily with evidence which is adduced to show a person’s character or propensities or which could be used by the tribunal of fact for that purpose. That person may be the accused in a criminal trial. Issues can arise about the admissibility of evidence of his good character, evidence of prior convictions or evidence of similar conduct to that giving rise to the charge brought against him. The person may be a third party and the evidence in question may be his history of violence which is relevant because it supports the accused’s claim that he acted in self defence. The person may be a witness and the evidence in question may be of previous acts of dishonesty which may suggest that the witness lacks credibility. In all these examples, the issue is whether the evidence is sufficiently probative to justify admission, notwithstanding any disadvantages to the trial process which may flow from the evidence.
785. Terminology. A number of terms have been used in the law, at times inconsistently. In this chapter the following terms are used in the senses described:
• Character. According to the Concise Oxford Dictionary, this word means a ‘description of a person’s qualities’. The law, however, seems to have used it in a number of different ways, corresponding not only to this meaning but also to ‘reputation’ and ‘propensity’ as defined below. The usage adopted here is the normal dictionary one, adverting to an individual’s personality, his character traits. That character may be evidenced in three ways—by evidence of ‘reputation’,[1] opinion, or specific conduct of the person (including conduct which has resulted in convictions).
• Propensity. This word is defined by the Concise Oxford Dictionary to mean ‘inclination or tendency’. It seems that this is the way it is used in the law,[2] a tendency to act, think or feel in a particular way. Usually the propensity will be evidenced by specific conduct, leading (like character) to the inference that the person will behave in conformity with that propensity.[3]
786. Character and Conduct in Issue. The character of a person may in some cases be a matter directly in issue as an element of a charge, claim or defence, and so admissible. Equally, his reputation, the opinion another holds of him, or some specific conduct of his, may be admissible for the same reason. Where a person’s character is directly in issue in a case, in the sense that it is ‘substantively required as the end product of proof, it would be inappropriate to prevent evidence of that character from being adduced. The character of the person is not being used as the basis for inferring to behaviour in conformity with that character. Rather, it is the end point of proof and the evidence should be admitted notwithstanding that the tribunal of fact may be prejudiced by it. Similar considerations apply when a person’s reputation, another’s opinion of his character, or his specific conduct is directly in issue. Its admissibility will be governed by the relevance proposals.[4] There can be no question that such evidence should be admitted in most cases.
787. Character and Conduct to Show Knowledge. Sometimes a person’s character or conduct is used to support claims about another person’s beliefs as to that character.[5] Here the evidence of character or conduct is not used to infer conforming behaviour. Existing law permits admission of such evidence, except for recent legislation relating to the sexual history of sexual crime complainants.[6] It is proposed to retain the general rule, and to make admissible evidence of sexual reputation or conduct adduced not to predict the behaviour of the complainant but to support the accused’s claim that he believed he would, and did, obtain consent. While such a line of argument is weak since it is the actual circumstances of the incident which are crucial, it would seem unjust to prohibit a person accused of rape from adducing evidence of the complainant’s reputation, of which he was aware, to support a case that he thought her willing. The relevance discretion is a more appropriate mechanism of control than strict exclusion.
788. Other Topics. The remainder of this chapter is concerned with the admissibility of evidence of character and conduct not directly in issue but relevant to the issues to be decided or to the credibility of witnesses. It is possible to summarise both the existing law in this area, and the policy arguments that have been advanced to support it. Such a summary is valuable for obtaining an overview, but should not disguise the contradictions and uncertainties which have been considered in more detail elsewhere.[7]
789. Character Relevant to Issue. Evidence about a person’s character is generally inadmissible and, when admissible, can only be proved by evidence of reputation. But this rule has not been well observed. All that can be said is that admissibility and method of proof vary from evidential situation to situation:
• Accused (Criminal Defendant). The law generally prohibits the prosecution from adducing evidence of an accused person’s (bad) character, not because it is irrelevant but because of the risks associated with its admission. Such evidence is prohibited ‘both in fairness to the accused and consistently with the practical conduct of an inquiry into defined and limited issues’.[8] In addition such evidence is generally said to be excluded because of its low probative value, the dangers of prejudice associated with it, and because its admission could involve unfair surprise.[9] But the law permits an accused person to adduce evidence of his good character.[10] This approach had an historical basis, helping to mitigate the rigour of the law in the days when the penalty for all felonies was death and judges had no discretion in respect of sentence. Modern rationales have included suggestions[11] that evidence of good character has more probative value than evidence of bad character, and that there are no prejudicial dangers involved with good character evidence. But the primary justification is the policy concern of our accusatorial system to ensure that the innocent are not convicted. A concern to limit the time spent on the issue caused the evidence to be limited originally to reputation evidence. But common law and statutory changes seem to permit, in varying degree, evidence of opinion and specific conduct.[12] Fairness requires that the prosecution be permitted to rebut the good character evidence, to avoid the tribunal of fact being misled. Again, the character evidence led by the prosecution has traditionally been limited to evidence of reputation, although the assumption of the ‘indivisibility of character[13] means that any aspect of bad character may be investigated. The dangers of such evidence are recognised by telling the jury that the evidence should be used only to negate the evidence of good character, not to point to the likelihood of guilt.
• Civil Party. Evidence of character is not admitted, although it is not clear whether this is because it is seen to be irrelevant or because of an exclusionary rule. Most of the policy issues already discussed would be applicable and would justify an exclusionary rule.
• Third Parties. No specific rules of admissibility have developed with respect to third parties. It would be rare for their character to be relevant in either civil or criminal proceedings. If the character of a ‘victim’ is relevant, therefore, it may be established by evidence of reputation, opinion or specific conduct. But although the sexual history of a rape complainant has traditionally been admitted to show her character, opinion evidence is not permitted and what categories of specific conduct are acceptable is not clear. The complainant’s general sexual reputation is admissible at common law on the issue of consent—on the premise that a woman who is ‘unchaste’ is more likely to consent to sexual intercourse than a woman who is not. Legislation in most States, however, has prohibited such evidence because of its low probative value, its prejudicial effect, and a concern to protect the complainant from unduly embarrassing cross-examination. Policy issues similar to those relevant to the accused arise here, including the concern to minimise wrongful convictions.
790. Similar Conduct Evidence Relevant to Issue. The admissibility of evidence of similar conduct must be considered in three situations:
• Accused (Criminal Defendant). The orthodox view excludes evidence of similar conduct adduced to show a ‘propensity’ or ‘disposition’ of the accused to commit the crime charged because ‘it is likely to be unfairly prejudicial to the accused’ and a ‘jury might attach too much importance to it’.[14] Other relevant factors are the raising of collateral issues, distraction of the jury and the risk of taking the accused by surprise.[15] But this rule of exclusion seems to apply only to evidence adduced by the prosecution, not to that adduced by a co-accused—on the premise that the co-accused must be allowed to present all relevant evidence consistent with his innocence. Similar conduct evidence which is relevant in some other way than showing a propensity of the accused is thought likely to be less prejudicial and is not excluded. But there may still be a danger of the evidence being used for an illegitimate propensity inference, and it may suffer from other disadvantages.[16] The approach most favoured at present attempts to ensure that the benefits of this evidence will outweigh any dangers by requiring that it possess substantial probative value.[17] Even if admissible, it may be excluded under the judicial discretion to exclude prejudicial evidence. An alternative approach to this area, gaining increasing support, is that ‘propensity evidence’ is not automatically excluded. Rather, the admissibility of all similar conduct evidence depends on balancing probative value and prejudice (although admission of the evidence will be exceptional and specific conduct evidence showing only a general propensity will always be excluded). Similar policy considerations are relied upon, but the aim is to adopt a more flexible test.
• Civil Party. It does not appear that any distinction is drawn between propensity and non-propensity reasoning in civil proceedings. Habit evidence, a form of similar conduct evidence showing a strong propensity, is admissible. For similar conduct evidence in general, although the danger of prejudice is less than in a criminal case, some courts have imposed a threshold level of probative value because of the risk that the tribunal of fact will give the evidence too much weight, and because of factors like surprise and raising collateral issues.[18]
• Third Parties. Similar issues arise in relation to similar conduct evidence relating to third parties. There is a conflict of authority between courts that rely on the test of relevance and courts that require some degree of probative force. The latter do so, despite the reduced significance of prejudicial dangers, because of ‘remoteness ... the inconvenience that would result if a different rule prevailed, and ... the tendency there would be to confuse juries by raising collateral matters’.[19] In the area of sexual crimes, statutory changes have been made to limit the admissibility of evidence of a rape complainant’s sexual history. These changes have been motivated by doubts about the probative value of such evidence and concern to protect the complainant from unnecessarily intrusive cross-examination.[20]
791. Character and Conduct Relevant to Issue only via Credibility of Witness. A witness is assumed to be credible, so that the party which calls the witness is not permitted to adduce evidence to bolster that credibility. But considerable freedom is given to opposing counsel to cross-examine a witness as to his character on the basis that it is relevant to credibility. The questioning may relate to reputation, opinion or specific acts and need not have any direct relevance to veracity, on the premise that evidence showing ‘bad character’ of any kind is connected to honesty. But there are differing statutory provisions in all jurisdictions giving a trial judge a discretion to disallow cross-examination of a witness as to his credibility if the subject matter of the cross-examination would not significantly affect the credibility of the witness. Furthermore, while evidence of reputation and opinion may be adduced in rebuttal of answers given in cross-examination, evidence of specific conduct is generally not admissible. This rule reflects a compromise which has regard to the probative value of such evidence and the danger that it may mislead and unduly prolong the trial. Criminal convictions are admitted under a statutory exception to this rule because there is no need to become involved in any preliminary fact-finding to determine whether a prior act actually occurred. The possibility of confusing the tribunal of fact by a collateral issue is reduced, and little time is consumed.
792. But when the witness is the accused in a criminal trial, a different approach is taken. He is permitted to adduce evidence of his good character, partly because it will help to balance his presumed bias, but largely because of the overriding policy concern to minimise the conviction of innocent persons. Prosecution cross-examination is permitted to prevent the tribunal of fact being misled.[21] The accused is generally otherwise protected from cross-examination as to bad character, largely to limit the risk of prejudice,[22] and to encourage his testifying and giving his side of the case. Of the exceptions, two should be mentioned. One allows the co-accused to attack the credibility of an accused who has given evidence against him—to enable the co-accused to defend himself adequately. The other permits cross-examination when the accused has attacked, directly or impliedly, the character of a prosecution witness. Legislation in New South Wales has curtailed this exception to some extent by permitting an accused to attack prosecution evidence without fear of cross-examination as to character if impugning the witness’ credibility was not the main purpose of the attack.[23] It is arguable that these approaches are based on a notion of ‘tit-for-tat’, a notion that does not sit well with an accusatorial system. But the New South Wales modification reflects a concern to permit an accused with prior convictions to present his defence without fear or restraint and, in practice, has virtually abolished this exception.
793. Policies and Assumptions. The justifications for the rules focus on familiar issues of policy:
• The Factfinding Process. This involves a consideration of the probative value of the evidence as well as its probable prejudicial and misleading effect—for example, in relation to evidence of good and bad character and previous conduct.
• Procedural Fairness. Concern is expressed about the risk of surprise, particularly in the area of alleged previous misconduct of the accused or of a patty in a civil trial. Concern is also expressed about fairness to witnesses—particularly the rape complainant as witness.
• Time and Cost. A common concern is the risk of raising collateral issues which not only may mislead but also cause a considerable increase in the time and cost of the proceedings.
• Minimising Risk of Wrongful Conviction. This traditional concern clearly lies behind the limits on what evidence may be adduced against an accused person. It is this in particular that accounts for the accused being allowed to lead evidence of his good character and for the additional limits imposed in respect of evidence of prior misconduct and cross-examination of the accused as to credibility. One may question, however, whether it is appropriate in an accusatorial system that the prosecution should be able to bring out the accused’s bad conduct and character where the accused, in testing prosecution witnesses or presenting his defence, raises matters that impugn the character of those witnesses. To this may be added the extremely prejudicial effect that may flow from such evidence.
794. Underlying the law is a view of character that assumes its indivisibility—if a person has bad character traits he is likely to be a bad person generally and vice versa: if he has good character traits he is likely to be a good person generally. For example, it is thought that evidence of the accused’s good or bad character is relevant to the issues of the case. This view of character assumes that people act consistently according to their character traits whatever the circumstances. Psychological research supports the conclusion that this is the way we view others—but not ourselves.[24] But psychological research also suggests this assumption is unsound.[25] At the same time, there is an assumption about the potential of evidence of character and conduct to mislead, confuse, and, especially, cause prejudice where it is of bad character and conduct. By and large, psychological research supports the approach taken by the law. We should maintain the existing bias against admitting such evidence and strictly control its admissibility. The research supports additional limitations in respect of evidence that is led against the accused. The research, however, also points to modifications that should be made to the law. It demonstrates that:
• while we assume an indivisibility and consistency of character in others we do not analyse and explain our own behaviour in that way—we place greater emphasis on situational factors. The latter approach is correct;
• the questioning allowed of witnesses as to their past conduct with a view to showing a lack of credibility goes far beyond that which has probative value and the rebuttal evidence that is allowed—eg, evidence of convictions—will generally have minimal probative value and may mislead;
• we tend to misestimate the probative value of evidence of character.
To maximise the probative value and minimise the disadvantages of such evidence, the emphasis of the law should be on receiving evidence of past conduct of the relevant person occurring in similar circumstances.[26] These issues, and the research upon them, must be considered further before specific proposals are advanced.
795. Value of Character Evidence. Until the first part of this century, psychological literature tended to concentrate upon the ‘trait’ theory of personality, assuming pervasive consistencies in a person’s character which can be discerned across many varying situations. The concept of character was seen as a useful and reliable predictor of behaviour, and it was thought that individuals had stable elements of personality that determinated their behaviour.[27] These elements were called ‘traits’ and were considered the peculiar qualities of a person that distinguished him from all others. They were psychological entities that existed in some real form and therefore represented more than descriptions of consistent behaviour. It was believed that dispositions internal to the individual cause environmental adjustment in one situation to correspond in a meaningful fashion to adjustments in other independent situations.[28] As a consequence, human behaviour was expected to show a high degree of cross-situational consistency and stability.[29]
796. Empirical research, however, has not supported these views. The seminal study in this area was conducted by Hartshorne and May as early as 1928. The subjects were eleven thousand public and private school children aged eight to sixteen. The experimenters studied the results of tests which were designed to determine the nature of deceit in children[30] and concluded that behaviour tends to be very dependent on situational factors. The greater the difference between situations, the less the correlation between behaviour. Despite limitations in this study, its general conclusions have been confirmed by further research[31] despite the fact that it seemed ‘logical, inherently plausible, and also consistent with common sense and intuitive impressions about personality’.[32] Its rejection, virtually complete, has taken two forms.
• Theory of Specificity. Some critics have rejected the idea of personality ‘traits’ and formulated an entirely different explanation of behaviour. Known best as the theory of specificity, it emphasises the situational determinants of behaviour and postulates that an individual’s conduct in a given situation is largely controlled by the circumstances under which it occurs. Mischel argues that many studies showed that behaviour was specific to a situation, rather than a general response typically found in the individual. Such character traits as social conformity, aggression, and attitudes to authority were found to vary according to the circumstances in which an individual found himself.[33]
• Modified Trait Theory. Other personality theorists have moved away from trait theory in a less radical way. They believe that behaviour is far less general than originally conceived, but not as disintegrated and unpredictable as claimed by those who adhere to the theory of specificity. Basically, the less radical psychologists propose a modified trait theory: the behavioural response of an individual in a given instance is thought to be determined by an interaction between his ‘psychic structure’ and the ‘situation’.[34] Christie and Geis have shown not only that behavioural consistencies in an individual are situation specific, but also that differences in behaviour arise as a result of situational moderators.[35] In the words of one commentator, ‘we do display trait-like consistency across a particular situational domain’.[36] Further empirical work will be necessary, because although experience suggests that a particular person with particular personality traits will act in a certain way each time he is confronted with the same situation, it will be necessary to determine how much variation there must be between two situations before they can be defined as ‘different’ situations. Nevertheless, it appears clear that where the situations are substantially similar a particular individual is likely to respond in the same way on different occasions.
797. Conclusions and Implications. The preceding analysis does not reject the existence of character. It is not inconsistent with the theory to postulate the existence of character influencing behaviour, but it is only likely to produce consistent behaviour where the situational factors are consistent. If an individual has behaved in a particular way in a particular situation, that individual is likely to behave in a similar way in a similar situation. This may be the result of an aspect of character. Indeed the existence of character would explain why different people behave in different ways in the same situation. But the important point to note in this context is that the concept of character in the narrow sense of general disposition has little value as a predictive tool of human behaviour. As a Canadian legal writer explains:
what the word has been used to mean in the circumstances under discussion is this: the elements of a person’s moral or mental disposition understood and stated in general terms. If that definition is accepted it seems clear that the concept was (and remains) the product of a naive method for analyzing human personality and predicting consistent conduct, born before the advent of modern scientific psychology ... Psychologists have now rejected the theory that every human being has stable elements of personality—‘traits’—exerting decisive influence on his behaviour in widely varying situations. Instead even conservative psychologists argue that the particular behaviour of an individual is largely determined by the impact of the specific situation in which he finds himself.[37]
Psychological studies indicate that, in the absence of detailed information on an individual’s history and personality, the chances of accurate prediction are very low unless the individual is in similar situations—it is the behaviour in a similar situation rather than an inferred character trait which justifies prediction.[38] In the court room, however, it is not feasible to receive such assessments of all the persons involved in a particular case.
798. An area to which this conclusion has particular relevance is testimonial credibility. Traditional psychological theories assumed that the mental organisation of every individual embodies a predisposition toward truthful or untruthful behaviour, a mental quality existing independent of the behaviour by which it is manifested. But no modern psychologist would consider moral disposition as so highly integrated as to motivate trans-situational consistency of behaviour. The Hartshorne and May study, referred to earlier, was a blow to the common belief that most people are ‘consistent and simple beings, who stay the same in different surroundings or at different times’ and suggested instead that the characteristics we see in other people may be in large measure illusory, so that, as Mischel stated, ‘behavioural consistencies ... are constructed by observers, rather than actual consistency in the subject’s behaviour’.[39] Thus dishonesty and falsehood tend to be ‘unintegrated, unstable and unpredictable’; ‘no-one is honest or dishonest by ‘nature’; ‘honesty is simply a name to describe conduct as observed in specific situations’. Pease, a noted English psychologist, after he had reviewed all the scientific data on moral behaviour, stated that:
This major finding, that morality is a blanket term effectively useless for the scientific analysis of personality is as important as it is difficult to accept. The fact that the morally good morally bad division is the central one in the layman’s assessment of personality means that, on the face of it, people rate other people primarily on a dimension that doesn’t mean much.[40]
Psychologists generally agree that moral judgments made by a single individual are independent of one another and affected substantially by the particulars of each situation. For example, a ‘Machiavellian’ individual will lie and cheat only in situations where this approach is feasible and to further his advantage.[41] Any person will show a variety of different behavioural characteristics yet still will be regarded as acting consistently. It appears, therefore, that when the credibility of a witness is to be assessed, there should be due recognition that a wide variation of behaviour can be discerned in any one person and that this arises as a response to the situation in which that person finds himself. This leads to the conclusion that, in the trial situation, assessments of honesty should be made only by focussing upon behaviour which involves truth-telling. The morality of violence has little to do with the morality of veracity. Further, the tribunal of fact should concentrate upon the behaviour of the witness in similar circumstances in the past. If, for example, a person has acted dishonestly in making false statements to the court on previous occasions, it is reasonable to infer that he might again make untrue statements when giving testimony. Similarly, if he has lied to protect the good name of friends, it is likely he will do the same on a subsequent occasion. Moreover, it should be recognized that despite the tendency to tell untruths on one or more sensitive issues, the remainder of the testimony might be quite sound, and the witness a basically ‘honest’ witness.
799. Disadvantages of Character Evidence. The generally low probative value of evidence of character, however, is not the only issue. If one accepts the view that it is of little value in a trial setting, that does not necessarily justify its exclusion. A low probative value does not by itself justify a decision to exclude evidence. Items of low probative value may, in combination with each other, make a very strong case which cannot otherwise be made. The existing law acknowledges that evidence of character can have disadvantages. It has underestimated, however, its capacity to distort the fact-finding process.
• Problems with Estimating Probative Value. Psychological research suggests that there is a real danger that evidence from which a character inference can be drawn will be given disproportionate weight by the fact-finder, compared with the weight scientific studies suggest it should have. The scientific study of inter-personal perception began about 30 years ago with a series of experiments designed to discover how impressions of personality are formed.[42] The Asch experiment began by presenting the personal characteristics of a fictitious person to two separate groups of subjects. The characteristics were portrayed by the reading of a list of trait adjectives. The presentation to the separate groups differed only with respect to one characteristic (‘warm—cold’). It was discovered that the two groups of subjects formed significantly different impressions of the target person. Those formed by members of group one were far more positive than those formed by group two and these impressions carried through to ‘checklist’ traits having no semantic similarity to the trait variable. More importantly:
There is an attempt to form an impression of the entire person. The subject can see the person only as a unit; he cannot form an impression of one-half or of one-quarter of the person. This is the case even when the factual basis is meagre; the impression then strives to become complete, reaching out toward other compatible qualities. The subject seeks to reach the core of the person through the trait or traits.[43]
This study stimulated a comprehensive investigation of the processes involved in personality perception. The original experiment has been duplicated scores of times, each duplication containing a significant variation in the manner by which information about the ‘target’ person was presented for evaluation. In every instance the experimental results have paralleled those of the first study. Personality has been found consistently to be perceived in terms of unified, integrated impressions. The problem with this inability of individuals to react to others except in terms of a unified, integrated impression is that the ‘unit’ perceived is likely to be widely different from the personality structure that exists in fact. It arises because of what has been termed the ‘halo effect’ and attribution:
(a) The ‘Halo Effect’. One perceived outstanding ‘good’ or ‘bad’ quality in a person will tend to colour all judgments pertaining to him. This known in psychology as the ‘halo effect’. It results from the failure to understand and discriminate between the diverse behaviours of the person perceived. The extent to which these judgments are affected by these perceptions will vary,[44] those furnishing a ‘key’ to a person having more weight than those that are subsidiary. ‘Polite-blunt’, for example, has a weaker effect than ‘warm-cold’. Unfavourable, unpleasant or socially derogatory information about another person seems to have more impact than positive information.[45] Further, the nature of the context in which the judgment has to be made is important.[46] It provides its own ‘cues’, predisposing the observer to certain perceptions and subtly emphasising their importance.’ In the context of the criminal trial, for example, information about the accused’s character will be seen as important, precisely because he is the accused in a criminal trial. Both the judge and jury know that he was arrested by a police officer who believed him guilty of the crime, that preliminary proceedings were held in which grounds were discovered for pursuing a formal charge, and they realise that their ultimate responsibility is to determine whether the accused engaged in criminal behaviour. Information about bad character is likely to be given a prominent role in the perception process given this situation.
(b) Attribution Theory. One of the more enduring propositions supported by psychological data is that most persons attribute their own actions to situational and environmental concerns, but attribute the same action in others to stable personality dispositions.[47] In other words, in spite of the psychological research to the contrary, most people believe in such stable enduring character traits as honesty. They also tend to attribute the behaviour of others to the possession or lack of possession of those personality traits.[48] These attributed characteristics can provide the basis in the criminal trial for conclusions of guilt or innocence.
Sometimes the perception of a single behavioural consequence may be decisive of the way in which important traits in a person’s character manifest themselves to us, especially when the relevant product deviates from what we perceive as the typical product ... If a man has committed a crime, many will perceive his personality in terms of this one behaviour consequence. To many people, a murderer is a murderer and nothing else. They see in him only the abstract characteristic of being a murderer; and this single characteristic swallows up all the rest of the human nature.[49]
A similar phenomenon has been identified in experiments designed to test testimonial credibility. Here it has been shown that character information about a witness is likely to produce either a generalised positive or negative attitude.[50] The audience either ‘likes’ or ‘dislikes’ him and reacts to his communication accordingly. In one study[51] a single persuasive communication was prepared on a controversial public issue. It was then presented to two audiences. One had been induced to like the person giving the message, the other to dislike him. The latter group rejected the message because of ‘their general disapproval of this speaker and everything he stands for, rather than disagreement with the specific content of what he said’.[52] Obviously an audience reaction such as that revealed by this study, if occurring in a jury, would cause a distortion of testimony and a consequent distortion of the fact-finding process.
Available scientific data establish a clear and certain risk that irrelevant, and therefore undesirable, testimonial influences emanate from evidence about a witness’ character.[53]
• Risk of Prejudice. The factfinder may infer from the evidence that the person is of ‘bad’ character, and respond in a negative fashion to him. Wigmore commented that ‘the deep tendency of human nature to punish, not because our victim is guilty this time, but because he is a bad man and may as well be condemned now that he is caught, is a tendency that cannot fail to operate with any jury, in or out of court’.[54] Evidence which indicates something ‘bad’ or ‘unattractive’ about a person may lead the fact-finder to infer that the person is of ‘bad character’, deserving punishment for previous actions or, indeed, for the acts which indicate something ‘bad’ about him. The more socially unacceptable or unattractive the accused’s past behaviour, the more likely the fact-finder is to be prejudiced. Lempert and Saltzburg suggests another source of prejudice—the regret matrix:
This model ... assumes that the decision maker will wish to minimize the regret ... he will feel as a result of his decisions in the long run ... [I]n the uncertain world of cases which go to trial, the decision maker can never be absolutely sure that he is not reaching incorrect decisions which he would regret if he but knew. While absolute certainty is impossible, the decision maker might be able to estimate a probability that the defendant was [guilty] e.g., 60%, 70%, etc. If he can do this and if he can articulate the relative regret he would feel about different possible outcomes, the regret matrix can tell him which decision—given the probabilities—would lead to the least total regret in the long run ... [Thus] knowledge that an individual has been guilty of past crimes may change the regret which the fact-finder associates with mistakenly finding that that person is guilty. The fact-finder might well think it absolutely terrible that an individual who has led a blameless life be sent to prison by mistake, but he may think it merely unfortunate that one who has spent a lifetime in and out of prison be sent away by mistake.[55]
This ‘regret matrix’ would operate in two different ways:
(a) Accused Not Punished for Previous Misconduct. The factfinder will not feel great regret if the mistake is made of convicting a defendant innocent of the crime charged because of the certainty that the defendant is guilty of some misconduct justifying punishment.
(b) Accused Convicted of Previous Misconduct. Where the accused’s misconduct has resulted in a conviction, there will be a diminution in the anxiety of the factfinder. He will not be convicting a person who has a clean record. The factfinder’s knowledge that the accused will, if convicted, be labelled a criminal, that the label will shame him and his family, that he may be barred from many occupations and that a variety of other similar disabilities will attach regardless of sentence, probably constitutes an important reason why courts may give defendants the benefit of the doubt. The person who has been once convicted, however, is already suffering from many of these disabilities. The cost to him of another conviction is not as great as the cost of the first. So the factfinder is likely to anticipate less personal damage if he mistakenly convicts someone with a record than if he mistakenly convicts someone who has never before been in trouble with the law. As Eggleston puts it:
If the jury is aware that the accused has already been convicted of a serious offence, and has therefore less reputation to lose than a citizen with an unblemished record, the jury may well be satisfied with a lower degree of probability force than it would otherwise require.[56]
Extensive mock jury studies carried out in recent years have clearly shown that that accused’s social characteristics and past history have a significant effect on jury assessment. As to the former, a number of experiments have been carried out which demonstrate that in determining what punishment to inflict, people will be significantly influenced by the allocation of attractive or unattractive social attributes.[57] Where prior convictions of a defendant are made known to mock jurors, it has been shown that information about the criminal record has produced significantly more verdicts of guilty than is the case where such information is withheld from the mock jury.[58]
800. Conclusion. The research confirms the need to maintain strict controls on evidence of character or conduct and for such evidence to be admitted only in exceptional circumstances. It demonstrates, however, that the emphasis of the law should be changed. For the sake of accurate fact-finding, fairness and the saving of time and cost, the law should maximise the probative value of the evidence it receives by generally limiting it to evidence of conduct occurring in circumstances similar to those in question. Only for special policy reasons should other evidence of character or conduct be received.
801. Rule of Exclusion. This psychological research supports the reasons traditionally advanced to justify the general inadmissibility of evidence of a person’s character. As at present, evidence of character should generally not be admitted. The question remains whether exceptions should be allowed.
802. Exception—Good Character of Accused. There is a danger that the fact-finder will wrongly estimate the probative value of evidence of the accused’s good character. More importantly, it may decide the case simply on the basis that any crime he may have committed has been balanced by his previous good behaviour.[59] But there are grounds of policy which may justify admission of evidence of good character if adduced by a criminal defendant. A fundamental principle of our accusatorial criminal trial system has been encapsulated in the maxim: ‘Better that ten guilty men go free than one innocent man be wrongly convicted’. If the legal system is to minimise the risk of wrongful conviction, it may be necessary to give the accused an absolute right to introduce evidence of his good character, subject to the relevance discretion.[60] On some occasions this option may be vital to an accused. In a mistaken identity situation, where the accused has no alibi but his own, good reputation may be the only thing that can save him from mistaken identifying witnesses. On balance it is wise to retain this kind of protection notwithstanding the low probative value of such evidence. There are a number of options that could be adopted to achieve such protection. One is to limit the method of proof to reputation, despite its deficiencies. While a small number of witnesses usually adequately serves to establish reputation, and it will be clear when further witnesses as to reputation are unnecessary, individual opinion testimony is theoretically never cumulative. Further,
Testimony as to reputation is typically bloodless, ritualistic and a bit dull ... it is unlikely to draw [the jury’s] attention from the central issues in the case. Also, the use of reputation evidence is unlikely to give rise to disputes concerning the existence of collateral facts, something that might occur if character could be proved by specific acts. Although the reputation ritual seems silly when first contemplated, perhaps it is a wise compromise.[61]
Such an approach, however, would limit rights that exist in New South Wales and the ACT. There, evidence of ‘the witness’ own knowledge of the habits, disposition and conduct’ of the accused may be given. Further, in other jurisdictions a certain amount of evidence is admitted of the opinion of the witness as to the accused’s character traits and the basis for the opinion. Expert opinion has also been allowed. This legislation and practice may be supported on the basis that evidence of conduct and opinion may be of more probative value than the evidence of reputation. Research has not revealed excessive time or cost being involved in such evidence. It is proposed that the accused may adduce evidence from witnesses about his reputation and that those witnesses may be asked to give evidence about the basis upon which they express their view as to his reputation.[62]
803. If the accused has led evidence tending to prove that he is not the kind of person who could commit the crime he is charged with, the prosecution must be permitted to rebut this evidence or the tribunal of fact might be left with a totally misleading impression of the accused. In fairness, the prosecution should be permitted to adduce the same type of evidence as was the accused. But the rule, under existing law, that the rebuttal evidence only negates good character without pointing to the likelihood of guilt seems incapable of enforcement.[63] Further, the law’s assumption of indivisibility of character which permits the prosecution to adduce rebuttal evidence relating to a ‘character trait’ other than that raised by the accused seems incorrect.[64] Where the evidence of the accused’s good character has been confined to his character in a particular respect, the evidence of bad character or prior conviction in rebuttal should be confined to such evidence as tends to disprove his good character in that respect.[65] The evidence may be relevant to credibility, but if the accused does not take the witness stand his credibility is not in issue. The evidence is immaterial and therefore irrelevant. Of course, if the evidence tendered by the accused crosses the spectrum of character, the prosecution should be able to rebut both in terms of issue and credibility.
804. Character of Third Parties. In relation to third parties, the only real problem area is that of sexual cases, where it is sought to adduce reputation evidence of the general sexual character of the complainant. It is suggested that the recent legislative reform in a number of jurisdictions to prohibit such evidence has been correct. Such evidence is of very low probative value. Indeed, as noted in the criticisms of the law, reputation is particularly unreliable when it relates to sexual matters.[66] More generally, it has already been demonstrated that it is dangerous to predict behaviour from previous behaviour without reference to circumstances. Further, as was also noted earlier, there are special dangers of wrong estimation of the probative value of the evidence, prejudice, confusion, surprise, and raising of unnecessary collateral issues which are almost impossible to rebut.
805. Expert Opinion Evidence. As at present, it is proposed to permit the accused to adduce expert testimony relevant to his character subject to the rules relating to the admission of expert evidence.[67] Consistently with present law, the co-accused may lead evidence of a like kind against the other accused. However, it is not proposed to allow the prosecution to lead expert testimony except in rebuttal because of the low probative value of character evidence, the need for extensive investigation of the accused for it to be worth receiving and the unlikelihood of the accused agreeing to such investigation. In addition there are the dangers of prejudice and confusion and the difficulty facing an accused in meeting such evidence.
806. Parties to Civil Trials. According to present law, evidence of habit is admissible. Further, although there is little authority, and some of the older cases are inconsistent, it seems true to say that evidence of past similar conduct is presently admissible in civil trials to show a party’s propensity or tendency to behave in a particular way.[68] This, it is suggested, is the correct approach because of the differences between civil and criminal trials and the reduced dangers of prejudice. But there are dangers with the admission of such evidence, as some courts have recognised by requiring some degree of probative value for admission. It is suggested that to clarify the situation, specific requirements consistent with psychological research should be formulated where possible to maximise probative value, as well as predictability and certainty. Such specific requirements would relate to the degree of relevant similarity of the conduct and of the relevant circumstances in which it occurred. Under existing law, the definition of habit evidence requires at least a series of substantially similar acts occurring in similar circumstances. If these requirements are imposed similar conduct evidence would be likely to have a relatively high degree of probative value without significantly endangering the trial process. If particular dangers of confusion or raising collateral issues arose, resort could be had to the proposed general discretion. Alternatives to such an approach are:
• A Requirement of Substantial Similarity Only. The Research Paper proposal required that there be substantial similarity between the acts or states of mind in question. It relied on the relevance discretion to exclude evidence of slight probative value where that was outweighed by disadvantages. A similar but tighter approach has been taken in the draft Bill—it is required that the substantial similarities be relevant similarities; similarities which ensure the earlier acts or states of mind are capable of significantly affecting the probabilities.
• Requirement of Substantial Probative Value. There is conflicting authority about whether something more than relevance is required. An option suggested is to require ‘substantial probative value’ as the test. This, however, involves the application of what is usually regarded as the standard for prosecution evidence of the accused’s misconduct. The special policy reasons justifying such a requirement are not present in a civil trial. The concerns in civil trials can be met by the above proposal together with the relevance discretion.[69]
807. Third Parties. For similar reasons the same approach should be taken to controlling the admissibility of evidence of conduct of persons other than the parties to the case. With respect to the specific topic of the prior sexual conduct of rape complainants, there has been a strong trend to limit the admissibility of such evidence. It is usually tendered as relevant to the issue of consent. For a number of reasons which are supported by the psychological research, limits should be imposed:
• Low Probative Value. A woman’s general sexual behaviour tends to be of minimal value in predicting her sexual behaviour in a particular case. The mere fact of prior consensual sexual activity provides no basis for inferring a specific ‘character trait’ causing a tendency to consent. Like behaviour in general, valid predictions are only likely to be made from previous sexual conduct where the circumstances are substantially similar.
• Estimation Problems. The tribunal of fact is likely to give too much weight to evidence of general sexual activity on the part of the complainant.[70] This tendency derives largely from community misconceptions about ‘character’ in general, and about contemporary sexual behaviour in particular.
• Prejudice. Kalven and Zeisel, in their study of The American Jury,[71] noted that in 42 cases of ‘simple rape’,[72] a verdict of guilty on that charge was rendered only three times. The judges in the same sample would have convicted the accused of rape in more than half the cases. Not only did they document a widespread inclusion of tort concepts of contributory negligence and assumption of risk,[73] they concluded that the jury imported equitable notions of unclean hands into the criminal prosecution. Specifically, the jury punished sexually active women by refusing to credit their accusations even in clearly meritorious cases involving no hint of precipitating conduct. In one case, a girl alleged that three men kidnapped her from the street in the early hours, then took her to an apartment and raped her. The jury acquitted, in apparent response to evidence that the unmarried victim had borne two illegitimate children.[74] The judge in the case called the result ‘a travesty of justice’.[75] Other studies have shown that married women and unmarried non-virgins are generally classified as victims of rape, but divorcees and prostitutes in the same situation were held responsible for the act and not victims of the crime.[76]
Limits are also required because of the risks of confusion, surprise, and undue consumption of time. The sexual complainant should also be protected from undue harassment and embarrassment under cross-examination, if only to encourage victims of rape to give evidence. On the other hand, these considerations may conflict with what is arguably the dominant policy concern of the criminal trial to maximise the acquittal of innocent persons.
808. It may be doubted whether the statutory changes to the law in this area have achieved the best solution. Those States which have imposed discretionary controls may be criticised for not going far enough, while the New South Wales and Western Australian provisions may have gone too far, excluding evidence which should on balance be admitted. This latter exclusionary approach has been criticised on the grounds that it is impossible to predict in advance all the ways in which evidence of the complainant’s prior sexual experience might be properly relevant to what are the real issues in a particular case. With respect to third parties in general it is suggested that an approach similar to that adopted for parties in civil trials should be appropriate.
809. Proposals—Parties to Civil Trials and Third Parties. A general rule is proposed that evidence of a person’s specific conduct is not admissible to prove a person’s tendencies that are relevant to the facts in issue unless the court is satisfied that a reasonable jury could find that the person did the conduct to which the evidence relates and the conduct and circumstances to which the evidence relates and the conduct and circumstances in issue in the proceedings are substantially and relevantly similar. A somewhat similar proposal is advanced to cover another possible reasoning process—the event in question being similar to others each of which could have been the responsibility of the person in question.[77] The emphasis is on controlling particular kinds of reasoning processes, so that the provisions are applicable to a number of different kinds of evidence and contexts.
810. Evidence of Accused’s Conduct Adduced by Prosecution. The existing law—however it is described or analysed—is supported in large measure by the psychological research. The law focuses on the probative value of the evidence and its dangers. The issue, so far as proposals are concerned, is what specific approach or combination of approaches best addresses these problems and meets the criticisms made of the law.[78] It is proposed to retain the present position that evidence of similar conduct of the accused, relevant for a purpose other than showing his propensities, may be admissible. A common process of reasoning falling within this category, reasoning via the improbability of a series of events occurring coincidentally, will however be regulated to some extent. This will be achieved by requiring that there be some evidence that the accused could have been responsible for the events and that the events are substantially and relevantly similar. These preconditions will ensure that evidence adduced against an accused for this purpose will have more than minimal probative value. A number of other issues must be considered.
• Evidence not Admissible to show ‘Propensity’. If the correct view of the law is that similar conduct evidence is not admissible to show a propensity, general or specific, of the accused, this prohibition might be justified on a similar basis to the prohibition of general character evidence relating to the accused. Clearly, evidence relevant to the issue of the accused’s guilt solely because it tends to prove that he has a general propensity to commit the offence charged should not be admissible when tendered by the prosecution, because the probative value of the evidence will be outweighed by the counter-balancing disadvantages of admission. It is also suggested that the probative value of evidence of specific conduct of the accused adduced to show a specific propensity is, where there is no similarity of act and circumstance, almost invariably likely to be outweighed by the disadvantages consonant with admission of the evidence. Exclusion seems appropriate. Where such similarity exists, disadvantages remain:
(a) Risk of Misestimation. The fact-finder may not allow for the possibility that a person who has performed an act in one set of circumstances will not perform it again in the same circumstances; ie the fact-finder may put too much weight on the similarities. Proof that a person could have performed the act claimed does not prove that he did do it on the occasion in question, but it is easy to leap to that conclusion. There is likely to be a tendency to diminish the size of the class of people with the same tendencies—to infer more readily that the accused, capable of certain behaviour, was the person who behaved in that way on the occasion in question.[79] A fact-finder, sure that one crime leads to another, might not give other evidence in the case, particularly that evidence which tends to exonerate the accused, the weight which it deserves.
(b) Prejudice. A jury may infer from the evidence that the accused was responsible for previous crimes or other misconduct. Even if it concludes that the accused was innocent of the charged offence, the jury may convict, in order to punish the accused for the other crime or misconduct. The danger of prejudice derived from the conduct having a negative moral component, which it usually will, is totally independent of the probative value of the evidence.
(c) Confusion, Surprise and Time. The same is true of problems of confusion and time wasting—indeed, it has already been noted that often the more probative the evidence the more these problems are exacerbated. As to surprise, a person involved in a trial may be surprised when specific conduct evidence is introduced, and be unable to muster contradictory evidence without an adjournment:
Evidence of disposition, particularly that which is inferred from similar fact evidence, may take the person against whom it is tendered by surprise unless he is prepared to defend himself with respect to all the bad acts of his life. In Willes J’s words, ‘if the prosecution were allowed to go into such evidence, we should have the whole life of the prisoner ripped up, and ... upon a trial for murder you might begin by showing that when a boy at school the prisoner had robbed an orchard, and so on through the whole of his life; and the result would be that the man on his trial might be overwhelmed by prejudice ...’[80]
(d) Pre-Trial Significance. An accused with prior convictions similar to the crime in question is more likely to be investigated and runs the danger of being prosecuted simply because of that record.
(e) Policy Considerations. Once someone has been punished for criminal behaviour, and thus ‘paid his debt to society’, it might be seen as unfair to use that previous behaviour against him at some time in the future.
On one view, the variable probative value of propensity evidence, general or specific, will always be outweighed by these disadvantages, justifying automatic exclusion. On the other hand, this approach lacks flexibility, requiring the automatic exclusion of evidence which may be of very high probative value in the case. In particular, evidence of a specific propensity may be highly probative. There are other considerations relevant here. Firstly, under present law similar fact evidence relevant for some reason other than evidencing a specific propensity can be admitted—for example, to show improbability of coincidence. But such evidence will have similar dangers in any event. If, for example, the prosecution seeks to adduce evidence of previous crimes in order to suggest that coincidence was improbable and that the accused must have been responsible for all of them, the following dangers exist:
(a) The jury may conclude that the accused was in fact responsible for the previous crimes and decide to punish him for those, regardless of whether he is guilty of the crime with which he is charged.
(b) A jury may incorrectly assess the probative value of the evidence. This may happen in two ways. The jury, having inferred that the accused is a ‘criminal’ or a ‘bad person’ may then overestimate the extent to which this information is important in determining whether the accused committed the crime in question. Alternatively, the jury may overestimate the unlikelihood of coincidence involved in the particular combination of events. While a trial judge may be unwilling to draw any conclusions from the existence of similarities in separate events, a jury may tend to give the unlikelihood of coincidence greater weight. Stated differently, the jury may misestimate the extent to which a particular combination of events is unlikely to have occurred without a connecting cause. As Justice Murphy stated in Perry v R,[81] ‘common assumptions about improbability of sequences are often wrong. A suggested sequence, series or patterns of events is often incorrectly regarded as so extremely improbable as to be incredible’.
(c) There is also the risk of the jury being distracted and trials being lengthened.[82] The pre-trial significance and policy considerations noted above may also apply to similar fact evidence adduced for this reasoning process.
Secondly, although evidence of similar conduct which shows a specific propensity can often be admitted to show an improbable coincidence of similar events,[83] that will not always be the case. If, for example, an accused were charged with a sexual offence relating to his daughter, and he asserts that someone else was responsible, evidence of his prior convictions of incest with other daughters would be substantially probative only because it showed a specific propensity for such conduct.[84] An alternative view of the legal position has gradually developed, whereby propensity reasoning is not always prohibited. The Herschell dictum in Makin, on this view, was intended only as a general indication that character evidence, evidence which does no more than show general (criminal) propensities, should be excluded. It did not automatically exclude all evidence suggesting a behavioural propensity, nor evidence having relevance otherwise than via propensity. Lord Hailsham’s ‘forbidden type of reasoning’, as stated in Boardman, should not be considered as covering all propensity reasoning, but, rather, insufficiently probative propensity reasoning, reasoning from evidence of general behaviour without any sufficient nexus to the occasion in question.[85] A danger with such an approach is that it may encourage the police to focus on, and charge, a person with a previous record for the same offence. It may remove an incentive to a criminal to reform.[86] Nevertheless, it is proposed that specific propensity reasoning not be prohibited altogether, where there is substantial similarity between the conduct on, and the circumstances of, the relevant occasions. It is clearly arguable that it is not totally prohibited at present. Such an approach is more realistic when the court is confronted by the Straffen type of case.[87] The dangers of such reasoning appear to differ very little from other ‘permissible’ modes of reasoning. This approach enables general provisions to be advanced which will control the admissibility of previous conduct evidence in all cases.
• Requirement of Substantial Probative Value. The orthodox view, apart from prohibiting ‘propensity’ reasoning, also requires that similar conduct evidence adduced by the prosecution against the accused have substantial probative value in order to be admissible.[88] But while this ‘discretionary’ requirement is an attempt to ensure that the benefits of similar conduct evidence will outweigh its disadvantages, it may be criticised for failing to meet this purpose effectively—it fails to formulate more objective rules where they are possible (consistent with psychological research), to give guidance as to the exercise of discretion, to define the concept clearly and to avoid possible injustice. It is also capable of excluding evidence of probative value but with minimal prejudicial effect. The desirability of consistent and predictable application of this test indicates that more detailed guidance is required to help the judge assess whether the evidence adduced does in fact. Even more stringent tests proposed recently by some members of the High Court[89] may be criticised for imposing too high a threshold on admissibility. The issues are complex and any changes to the existing emphasis of the law could have serious ramifications for the accused. If, for example, a test of substantial probative value were replaced by a test which balances probative value against the disadvantages of the evidence, it is likely that more evidence of past misconduct would be admitted against the accused—evidence which does not have substantial probative value and which, while having a prejudicial effect, does not have a significant prejudicial effect. The existing balance would be changed.[90] The balance would also be changed if the judge had to be satisfied either that no reasonable jury could conclude otherwise than that the accused had committed the similar conduct, or that a reasonable jury must conclude, considering only the similar conduct evidence, that the accused did commit the crime charged. It is proposed, therefore, to continue the requirement of substantial probative value but to specify the matters that, typically, should be taken into account. This will address some of the criticisms made of the existing law.
• Exclusionary Discretions. There remains the criticism that the existing law, together with the discretion to exclude evidence where its prejudicial effect outweighs its probative value, can have the effect of allowing highly prejudicial evidence to be received where its probative value, while substantial, only just exceeds its prejudicial effect. This is a matter for concern, given the priority of minimising the risk of wrongful convictions. A possible alternative to the proposed requirement of substantial probative value is a rule which provides that similar conduct evidence shall be excluded unless the probative value of the evidence substantially outweighs its prejudicial effect. Such an approach could add other relevant issues into the balance—the importance of the evidence[91] and the dangers of misestimation of probative value, confusion and waste of time. This alternative takes up a view emerging in the cases and elsewhere that the test should simply be the above-mentioned balancing test. It may be argued that so long as the probative value substantially outweighs the disadvantages of admitting the evidence it ought to be admitted. If the probative value of the evidence is slight, the disadvantages must be miniscule before it is admissible. The view is taken, however, that the risks are not warranted where the probative value is low and this alternative is not adopted as the proposal.
• Additional Safeguard. Apart from the requirement of substantial probative value and retention of existing discretions, another safeguard should be imposed because of the dangers of similar conduct evidence—a requirement that the issue to which the evidence relates should be in dispute. The law is clear that an item of similar conduct evidence, to be admissible, must be at least relevant to a fact in issue in the trial. In a civil trial, through the pleading process, the facts in issue become defined. In a criminal trial there are no formal pleadings, the primary issues are determined by the definition of the offence according to the law under which the Crown proceeds. The plea of ‘not guilty’ is equivalent to the accused saying ‘let the prosecution prove its case if it can’.[92] He is thereby entitled to contest any and all elements of the offence charged and raise all matters of excuse, justification and all other matters which may bring him within provisos contained in the law creating the offence. The prosecution is, therefore, entitled to adduce admissible similar fact evidence relevant to any fact theoretically in issue. But other conduct evidence is often prejudicial. It may be misused. However probative of a particular fact, it should not be admitted unnecessarily. The issue to which it is relevant should be a real one—its prejudicial potential makes this important:
the utility of the general exclusionary rule, which, in my view, is a very important one, would be greatly impaired if evidence of this kind is admitted as a matter of course despite its irrelevance to the real defence of the accused.[93]
The law is unclear.[94] It is proposed for the above reasons to require that the issue to which the evidence relates be genuinely in dispute before the evidence is admitted.
811. Evidence of Accused’s Conduct Adduced by Co-Accused. Where it is a co-accused, not the prosecution, who seeks to adduce similar conduct evidence, the present law is correct in not requiring a threshold level of probative value, because of the concern that an accused be allowed to tender all evidence consistent with his innocence. But it is suggested that the evidence, if adduced for specific propensity reasoning, should satisfy requirements of similarity in order to achieve more than minimal probative value. Further, if no judicial discretion exists in this area it is suggested that it should be introduced, so that the court, in considering the legitimate interests of the two accused, can balance the value of the evidence to one against the dangers to the other.[95]
812. Desirability of Separate Treatment. One member of the Commission disagrees with the approach taken in the proposals dealing with similar fact evidence adduced against the accused.[96] The first criticism made is that it should not be treated as allied with or in close conjunction with character evidence. It would be better to divorce similar fact evidence from character, and so avoid any possible implication that the first is only a branch or species of the second. The majority view is that it is necessary to deal with the subject when dealing with character evidence because both raise the same policy issues.
813. Propensity Reasoning. The major criticism made, however, is that the proposal should not allow evidence of similar facts to be used to prove a propensity of an accused person—whether specific or general. The member acknowledges that there has been much discussion by academic writers as to the true basis of Lord Herschell’s dictum stating the rule in Makin’s case;[97] and in particular, whether similar fact evidence is admitted in some types of cases because it shows a propensity on the part of the accused (since the rule is concerned mainly with criminal cases) to engage in conduct similar to that with which he is charged. Certain writers insist that it is.[98] But he argues that courts of high authority in England and Australia[99] have continued to insist for upwards of one hundred years that evidence of improper conduct on other occasions will not be admitted if it tends to prove no more than that the person had a propensity[100] or disposition to commit crime, or crime of a particular kind, or a crime of the kind charged. The High Court of Australia, he argues, has confirmed this principle in the strongest terms in the recent cases of Markby v R;[101] Perry v R;[102] and Sutton v R.[103] However, if the evidence of other improper conduct is, by a variety of reasoning processes which have been worked out in the detailed cases, strongly probative of the conduct in question, and its probative force is such as to ‘clearly transcend its merely prejudicial effect,[104] it is equally well settled that the evidence is admissible notwithstanding that it may tend to show such a propensity or disposition.
814. He argues that the draft sections[105] propose to put aside this law which has been adhered to so strongly for so long, and to provide, subject to certain overriding discretions and safeguards, that evidence may be admissible to prove that an accused person has a ‘tendency’ to engage in conduct similar to that charged against him, this being accepted as relevant evidence tending to prove commission of the crime charged. The extent of academic discussion of the rationale underlying the admission of similar fact evidence has arisen out of the inherent difficulty of rationalising the subject; but the main criticism made is that introduction of the dialectical difficulties associated with propensity reasoning into the draft Bill will tend to produce injustice and confusion.
• Injustice. He argues that the fact that a person may have engaged in misconduct of a similar kind on another occasion is of itself, as a matter of common sense judgment, of no persuasive value to prove that he engaged in the conduct charged against him on a relevant occasion, unless there are some special circumstances appertaining to the similar conduct which do introduce cogent persuasive force. ‘Substantial similarity’ is not enough to vindicate the principle involved, and the expression ‘relevant similarity’ begs the question. Some lawyers and courts will argue that propensity is always relevant to prove that the accused committed the offence charged on the particular occasion, and others will argue that it never is. You may often have a situation where the evidence that the accused committed the offence on the particular occasion may be barely adequate, or insufficient to discharge the criminal onus of proof, but you will be enabled (in some cases) to add to that evidence that he had a propensity (leaving aside how strong or weak or tenuous it may have been) to perform acts of a similar kind, and that evidence may well be sufficient, given the weight that a jury may attach to it, to carry the evidence over the onus barrier. In the view of this member such a result would be utterly unfair, because, although the existence of a propensity may well tend to prove that the person concerned is likely to commit a similar offence on some other occasion or from time to time, it does not of itself prove that he did the act on the particular occasion. Whether he did that or not must depend upon evidence which is specifically relevant to that question. It is not persuasive to say that he is more likely to have committed the offence at that time and place than a person who does not have such a tendency. That is not more likely, but even if it is, it does not tend to prove that he did in fact commit it on that occasion. It may be argued that under the draft Bill, the propensity evidence will not be admissible against an accused unless it has ‘substantial probative value’, but, given the amorphous nature of relevance in this context, when is propensity evidence going to be said to have substantial probative value? Once tendered, such material may amount to no more than evidence of bad character of the accused orientated specifically towards the offence charged, and therefore likely to be given much more weight than it deserves.
• Confusion, because the permitted tendering of evidence which is led for the purpose only of showing a tendency to commit offences of a kind similar to that charged, such a tendency being assumed to be relevant to the charge (since only relevant evidence is admissible), must raise collateral issues which will consume much court time and tend greatly to distract a jury—eg, when is a ‘tendency’ established; how strong was the tendency if any; to what extent should it be regarded, if established, as predictive of conduct on a particular occasion; to what extent if any does it tend to prove commission of the particular offence charged on the particular occasion; and so on?
815. Propensity—Comment on Dissenting View. The explanation and justification of the proposals appears above.[106] Reference should also be made to the discussion of the relative dangers of the different reasoning processes. On the issue of ‘injustice’, the proposal in the legislation does not rely solely on substantial and relevant similarities[107] to control the admissibility of evidence of such misconduct of the accused. The existing requirement of substantial probative value and the discretion to include the evidence if its prejudicial effect outweighs its probative value should give the accused at least as much protection as he now enjoys. It should not reach the hurdle of the exclusionary discretion if it amounts to mere evidence of bad character. On the issue of confusion, it was thought that the permitting of propensity reasoning would not raise collateral issues or result in additional evidence being adduced. It will always be in the prosecution’s interest to lead evidence to establish that the accused was responsible for the prior conduct. If it is strong enough—as in, for example, the Straffen case[108]—the prosecution may be able to use what is seen as the more natural reasoning process of propensity. As to the confusion, the judge on either approach would have to give directions to the jury about propensity reasoning. We think it would be more confusing for the jury to be told that they may only rely on coincidence reasoning even though they may be satisfied that the accused committed the prior acts. Whether the issue is raised will depend on how the prosecution seeks to put its case.
816. Alternative Proposal. The proposal advanced by the dissenting member differs in two major ways—it forbids propensity reasoning, while the majority permits it in certain limited circumstances; it does not attempt to lay down pre-conditions for the use of evidence of prior conduct against an accused.[109] Evidence of misconduct on other occasions may be relevant to a fact in issue, irrespective of whether it may be said to show ‘continuing disposition[110] or propensity, by way of a number of different reasoning processes according to the. factual context. These reasoning processes are in the main formulations based on common sense and experience which, as Lord Hailsham said in Boardman,[111] are difficult to categorise. An alternative proposal is suggested along the following lines:
(1) This section applies in relation to evidence adduced in a criminal proceeding by the prosecution but does not apply in relation to evidence adduced as to the credibility of the defendant.
(2) Evidence that the defendant did an act or had a particular state of mind is not admissible to prove that he has or had a propensity to do a similar act or have a similar state of mind.
(3) Evidence that the defendant did or could have done an act or had or could have had a particular state of mind, being an act or state of mind that is similar to an act or state of mind the doing or existence of which is a fact in issue is not admissible unless, in all the circumstances
(a) the existence of that fact in issue is substantially in dispute in the proceeding; and
(b) the evidence has strong probative value.
817. Witnesses Generally. The existing law permitting the admission of evidence of a witness’ reputation for veracity or another’s opinion as to his veracity assumes that people have character traits with respect to truth-telling which produce consistent behaviour in different situations. But psychological research has, as noted above, demonstrated that such an assumption should not usually be made.[112] Evidence relevant to credibility will have minimal probative value unless it relates to specific conduct in substantially similar situations. In addition, it suffers from the same disadvantages as other character evidence—the dangers of misestimation and prejudice.[113] Another policy concern is that the threat of having character evidence used against a witness may discourage him from giving testimony and thus deprive the tribunal of fact of relevant, perhaps crucial, evidence.
818. Of course, even if the only evidence which should be used to attack credibility is evidence of specific conduct, similar to that of telling lies in court, that does not necessarily mean that the present prohibition on adducing evidence in rebuttal should be abolished. The existing rule limiting investigation of such matters to cross-examination may be justified by the desire to keep trials within manageable limits by avoiding detailed investigation of collateral issues. But, on the other hand, such an inflexible limitation may result in the court being misled. Often the answer may be rebutted easily, with limited interruption of the trial. Moreover, specific conduct evidence of this particular kind is likely to be relatively uncommon, so that it could be adduced without significant problems.
819. Witnesses Generally—Proposals. Evidence of reputation or opinion should not be admitted to show a tendency to untruthfulness except to rebut evidence of good character adduced by an accused.[114] As for other evidence, the proposals distinguish between the cross-examination of witnesses about their credibility and the adducing of evidence from one witness about the credibility of another. Different restrictions are imposed. It is consistent with the approach of the existing law.
• Cross-Examination. A witness should no longer be open to cross-examination on any negative aspect of character or misconduct on the basis that it is relevant to credibility. The research of psychologists suggests that emphasis should be placed on evidence of conduct which is similar to testifying untruthfully (ie involves false statements) and which took place in circumstances similar to those of testifying (ie the witness was under a substantial obligation to tell the truth at the time). Consideration was given to including a proposal to that effect but it was thought to be too limiting for the exercise of cross-examination. At the same time, the present law, despite judicial powers of control does not adequately limit such cross-examination. It is proposed, therefore, to include a general rule having the effect of prohibiting cross examination as to credibility unless it has substantial probative value on the question of credibility.[115] To assist in the use of the clause, a further clause is included which refers to matters relevant to the probative value of such evidence. It will be permissible to cross-examine a witness with respect to bias, or motive to be untruthful, with respect to mental and physical capacity, about his ability to perceive the relevant events and about prior inconsistent statements.
• Adducing Evidence. A witness should not be questioned about another’s reputation (for honesty) or his (non-expert) opinion about another’s honesty, because this evidence is of minimal probative value, and open to dangers of misestimation of probative value, prejudice and confusion.[116] It is further proposed that the existing law’s collateral facts rule should not be retained in its present form. It should be possible for opposing counsel to prove that a witness has, although he denied it on cross-examination, done an act which impugns his credibility.[117] This change is justified because of the risk of the court being misled but any provision must be carefully defined because of the risk of time and cost being increased. The proposal limits such evidence to evidence of a false representation made knowingly or recklessly and in circumstances where the witness was under a legal obligation to tell the truth and to evidence of bias, lack of opportunity to observe, mental and physical capacity and prior inconsistent statements. In addition, evidence can be led in rebuttal of any evidence so adduced.[118]
It is proposed that where evidence is not admissible with respect to questions of credibility, but admissible for some other purpose, it should be admitted (subject to discretionary exclusion) but may not be used to impugn credibility. There is no reason why a tribunal of fact should be permitted to use evidence for a credibility purpose which is otherwise prohibited simply because it happens to be admissible on some other ground. Policy considerations that warrant control of credibility evidence justify this approach.
820. Evidence Relevant to Credibility of Accused. Additional policy considerations come into play when the witness giving evidence is the accused in a criminal trial. The accused is permitted to adduce evidence of his good character relevant to credibility, although this has traditionally been limited to evidence of reputation. This position may be justified on the same basis that was suggested for the admission of such evidence going to the issues.[119] There is the additional rationale that the evidence will tend to balance the presumed bias of the accused in giving evidence to support his case. The present law relating to the accused also differs from that generally applying to witnesses in that the accused is, with exceptions, generally protected from cross-examination as to bad character going only to credibility. There are several reasons for this approach. These include the risk of prejudice and the disincentive to testify it might give to an accused. As to the latter, it is preferable that the tribunal of fact’s assessment should depend, apart from the prosecution evidence, on the accused’s testimony rather than on the uncontrolled inferences of the jury from the accused’s failure to testify or on the evidence of his ‘bad character’. Treating the accused like an ordinary witness would discourage him from giving evidence if he has performed acts admissible to attack credibility. The ordinary witness approach is adopted in the United States and Canada—with limitations on the kinds of ‘character evidence’ admissible to impugn credibility. Opinions differ as to the extent to which the rule operates there to deter accused persons from giving evidence, but there is no doubt that it does deter them in a great many cases.[120] There is also a grave danger that the court may misuse the evidence.[121] This is particularly likely where the defendant/witness has been impeached with a prior conviction similar to the crime for which he is being tried. It is very likely that the fact-finder will reason that ‘once a bank robber, always a bank robber’. It may be that the evidence is admissible on such a basis—but it should not get into evidence via a supposed credibility analysis. If the evidence is not admissible during the case for the prosecution, it should not be rendered admissible simply because the accused chooses to give evidence. Finally, automatic admission of the bad character of an accused person who testifies is likely to tend to produce a class of scapegoats. When a crime is committed, it will be a temptation to bring charges against a man who has some connection with the crime and also has a long criminal record.
821. There is much force in these arguments. The accused should receive special protection from the dangers associated with the admission of character evidence used to attack credibility. The need for such evidence is likely to be small. Put differently, its incremental probative value is low. This is because the fact-finder hardly needs such evidence when it is obvious that any accused, indeed any party, is vitally interested in the outcome of his own case. Of course, since it has already been concluded that cross-examination should be permitted under the ‘similar fact rule’ and to rebut evidence of good character, there does not seem any reason to prevent cross-examination on such a basis even though it may indirectly affect credibility. But two specific exceptions, contained within the existing law, need to be considered:
• Attack on Prosecution Witnesses. The exception permitting the prosecution to cross-examine the accused as to bad character and prior misconduct where the accused has attacked the character of a prosecution witness has been justified on the basis that the jury ‘is entitled to know the credit of the man on whose word the witness’ character is being impugned,[122] and as a disincentive to unjustifiable attacks on prosecution witnesses. But it is suggested that the first argument, founded on a ‘tit for tat’ basis, has little merit. The attack on the credibility of prosecution witnesses may not be based on the accused’s instructions. Furthermore, the purpose of the cross-examination is to suggest that such witnesses are unworthy of credit. The question of their credibility is altogether unrelated to the existence of a record of misconduct on the part of the accused. The fact that the accused has been guilty of past misconduct does not in any way reduce the danger of convicting him on the testimony of witnesses whose vulnerability as to credibility is demonstrable. The second argument has some merit, in that the approach provides some disincentive to unjustifiable attacks on prosecution witnesses. But objectionable methods of defence ought not to be punished by the admission of prejudicial evidence. More important, the rule is a disincentive to justifiable attacks on credibility. The mechanism for solving the problem is too broad in effect. It is suggested that there are other methods which do not entail unjustifiable detriment to the accused.[123] Apart from doubting the validity of the traditional rationales of this exception, a number of very powerful criticisms may be made of it. These have been noted above, as have criticisms of the New South Wales attempt to meet some of the problems with the rule.[124] In addition, to permit such evidence underestimates its prejudicial impact.
• Evidence by Co-Accused. The present exception that an accused may be cross-examined as to bad character where he has given evidence against a co-accused seems legitimate. Where one accused, A1, has given evidence attacking the character of co-accused, A2, he is seeking not only to exonerate himself but to incriminate his co-accused. Consequently, it is in the interests of justice that A2 should be able to tender evidence which could reasonably affect the credibility of the testimony incriminating him.[125] Similarly, A2’s character should in turn be opened to such an attack by A1. In both cases, each is in the position of a witness for the prosecution and should be open to attack by the other accused. The present law gives a discretion to the trial judge to stop the prosecution from cross-examining an accused under this provision, but it appears that no such discretion exists where it is a co-accused who seeks to cross-examine an accused. While the latter position may be justified, there are likely to be significant disadvantages to the accused from this approach. These have already been noted.[126] A trial judge has a general discretion to ensure that evidence which is more prejudicial to an accused than probative is excluded. There does not seem any good reason why, in the exercise of that discretion, the trial judge should not balance the likely disadvantages of admission to one accused against the advantages to the other.
822. Credibility of Accused—Proposals. Proposals are advanced to deal with the cross examination of the accused and the adducing of evidence by the accused. Apart from these specific proposals, the rules relating to witnesses in general will apply.
• Cross-Examination. It is proposed in accordance with existing law that cross-examination of an accused by the prosecution as to his credibility will be very limited.[127] With respect to the existing exception relating to attacks on prosecution witnesses, a modified form of the New South Wales formulation is suggested. Like the latter approach, cross-examination of the accused will only be permitted where:
― the purpose of attacking the prosecution witness was solely or mainly to impugn the credibility of that witness; and
― the evidence relating to the prosecution witness did not concern his conduct during the criminal investigation or the circumstances giving rise to the prosecution.[128]
But further limitations proposed are:
― the attack on the prosecution witness must be made by the accused himself giving evidence;
― leave of the trial judge must be sought before the accused may be cross-examined[129] and may only be granted in exceptional circumstances.
As an alternative, it may be considered appropriate to abolish the prosecution witness exception.[130] This would avoid the above complexity and may be justified in part by the proposed general limits on the ability of a party (including the accused) to use a (prosecution) witness’ prior conduct to attack his credibility.
Cross-examination by a co-accused may be permitted by the judge where the accused has given evidence against that co-accused.[131] Another exception to the general prohibition will be where the accused has adduced evidence of his good character.[132]
• Adducing Evidence. So far as the accused is concerned, it has been proposed to retain the existing rule that an accused person may adduce evidence of his good (reputation) in order to show that his character is inconsistent with commission of the crime with which he or she is charged. It is here proposed, again in accordance with the existing law, that this evidence may be adduced as relevant to the accused’s credibility. With respect to the prosecution, it should be able to adduce evidence of character relevant to credibility to the same extent that it can cross-examine, but only in rebuttal.
823. Organisation of Legislation. It has been found necessary to deal with questions of credibility before proceeding to evidence of character or conduct directly relevant to facts in issue. This is because a separate regime is provided for reputation or opinion evidence adduced by an accused to show his good character, and the contradiction of that evidence. Such evidence may be relevant both to questions of credibility and directly to facts in issue. As for evidence of specific conduct relevant to a fact in issue, provisions deal firstly with reasoning via propensity (tendency) and then with reasoning via improbability of coincidence. The conduct involved may be of an accused person, a party in a civil case, or any third party in any type of case. But a further provision provides additional protection for an accused when evidence of prior conduct is adduced against him by the prosecution, regardless of the process of reasoning involved.
[1] This term means, according to the Shorter Oxford Dictionary, ‘the common or general estimate of a person with respect to character or other qualities’. The law uses the term in the same way, emphasising that it is the general opinion of some community as to a person’s character.
[2] See Perry v R (1983) 57 ALJR 110, 112, 115, 121, 123. Compare, however, Markby v R [1978] HCA 29; (1978) 140 CLR 108, 116 (Gibbs ACJ).
[3] A number of authorities use ‘disposition’ to mean the same thing as ‘propensity’ (JA Gobbo, D Byrne & JD Heydon, Cross on Evidence, 2nd Aust edn, Butterworths, Sydney, 1979, para 14.1; PK Waight & CR Williams, Cases and Materials on Evidence, Law Book Co, Sydney, 1980, 351) although the dictionary definitions sometimes import some element of personality or character. The word is not used here, although there could be little objection if it were used instead of ‘propensity’, or to mean a ‘continuing propensity’. See also New South Wales Law Reform Commission, Working Paper, Evidence of Disposition, Govt Printer, Sydney, 1978, 6-7.
[4] See para 640-3.
[5] For example, evidence of an assault victim’s ‘character’ for violence is used to show that the accused believed he had to act in self-defence. Similarly, evidence of an accused person’s character could be adduced to prove that the police had reasonable grounds to suspect that he had committed a crime.
[6] eg Evidence Act 1906 (WA) s 36A; Crimes Act 1900 (NSW) s 4098.
[7] Appendix C, para 163-87.
[8] Attwood v R [1960] HCA 15; (1960) 102 CLR 353, 360.
[9] See Cross on Evidence, para 14.1; PB Carter, Cases and Statutes on Evidence, Sweet & Maxwell, London, 1981, 579.
[10] By his own testimony, examination of defence witnesses or cross-examination of prosecution witnesses.
[11] GF James, ‘Relevancy, Probability and the Law’ (1941) 29 Calif L Rev 689, 700.
[12] See Appendix C, para 167.
[13] Appendix C, para 166-8.
[14] Perry v R (1982) 57 ALJR 110, 112 (Gibbs CJ).
[15] id, 113 (Gibbs CJ); 116-7 (Murphy J).
[16] See above, para 400 and below, para 810.
[17] A level higher than that required to establish relevance—see Appendix C, para 169-70.
[18] See Appendix C, para 175.
[19] Duff v R (1979) 39 FLR 315, 348.
[20] See Appendix C, para 176
[21] In some instances the prosecution may lead evidence in rebuttal of the answers.
[22] In Richards v US [1951] USCADC 217; 192 F 2d 602, 605 (1951) it was said that use of prior convictions to attack credibility ‘may result in casting such an atmosphere of aspersion and disrepute about the defendant as to convince the jury that he is an habitual law breaker who should be punished and confined for the general good of the community’.
[23] See Appendix C, para 186-7.
[24] See below, para 799 and RG Lawson, ‘Credibility and Character: A Different Look at an Interminable Problem’ (1975) 50 Notre Dame Lawgiver 758, 767-771; SE Asch, Social Psychology, Prentice Hall, New York, 1952, 206; F From, Perception of Other People, Columbia University Press, New York, 1971, 46.
[25] See below, para 795-800.
[26] See below, para 795-7.
[27] G Allport, Personality—A Psychological Interpretation, Holt, New York, 1937, 286ff.
[28] ibid.
[29] AW Burton, ‘Generality of Honesty Reconsidered’ (1963) 70 Psychol Rev 481, 482.
[30] H Hartshorne & MA May, Studies in Deceit, MacMillan, New York, 1928, 379.
[31] It has been found that the correlation between behaviour in a given situation and a different situation is rarely higher than +1.30.
[32] W Mischel, Personality and Assessment, John Wiley, New York, 1968, 147.
[33] id, 177.
[34] See, eg, AE Nelson, RE Grinder & ML Mutterer, ‘Sources of Variance in Behavioural Measures of Honesty in Temptation Situations: Methodological Analyses’ [1959] 1 Developmental Psychol 265; J Wallace, ‘What Units Shall We Employ’? Allport’s Question Revisited’ (1967) 31 J Consulting Psychol 56; KS Bowers, ‘Situationism in Psychology: An Analysis and a Critique’ (1973) 80 Psychol Rev 307, 325.
[35] R Christie & F Geis, Studies in Machiavellianism, Academic Press, New York, 1970, discussed in AD Yarmey (ed) The Psychology of Eyewitness Testimony, Macmillan, New York, 1978, 178-9.
[36] HA Aiker, ‘Is Personality Situationally Specific or Intrapsychically Consistent?’ (1972) 40 Journal of Personality 21, 40.
[37] SA Schiff, Evidence in the Litigation Process, Carswell Co, Toronto, 1978, 793-5.
[38] See para 795-7.
[39] Mischel, 43.
[40] K Pease, ‘The Myth of the Moral Personality’ (1970) 4 Papers in Psychol 16, 18.
[41] Christie & Geis, discussed in Yarmey, 178-9.
[42] S Asch, ‘Forming Impressions of Personality’ (1946) 41 J Abnorm & Soc Psychol 258.
[43] id, 284.
[44] See HH Kelley, ‘The Warm-Cold Variable in the First Impressions of Persons’ (1950) 18 J Personality 431.
[45] Asch, 258.
[46] See eg DJ Schneider, ‘Implicit Personality Theory: A Review’ (1973) 79 Psychol Bull 294, 299; IP Levin, LL Wall, J Dolezal & KL Norman, ‘Differential Weighting of Positive and Negative Traits in Impression Formation as a Function of Prior Exposure’ (1973) 97 J Exp Psychol 114.
[47] I Jones & G Thibaut, ‘Interaction Goals as Bases of Inference in Inter-Personal Perception’ in R Tagiuri & L Petrullo (ed) Person Perception and Interpersonal Behaviour, Stanford University Press, New York, 1958, 153.
[48] I James & R Nisbett, ‘The Actor and the Observer: Divergent Perceptions of the Cause of Behavior’, in E Jones, D Kenhouse, H Kelley, R Nisbett, S Valins & S Weiner, Attribution: Perceiving the Causes of Behavior, General Learning Press, Mainstream, 1972; JH Davis, ‘From Acts to Dispositions: The Attribution Process in Person Perception’, in L Berkowitz (ed) Advances in Experimental Social Psychology, Academic Press, New York, 1964.
[49] That aspect of psychology which considers how people form their impressions of the personality traits of others is called ‘attribution theory.’ See generally K Shaver, An Introduction to Attribution Processes, Winthrop, Cambridge Mass, 1975; AH Hastorf, DJ Schneider, & J Polefka, Person Perception, Addison-Wesley, London, 1970.
[50] F From, Perception of Other People, Columbia University Press, New York, 1971, 46.
[51] HC Kelman & F Eagly, ‘Attitude Toward the Communicator, Perception of Communication Content, and Attitude Change’ (1965) 1 J Pers & Soc Psychol, 63.
[52] id, 64.
[53] Lawson, 771; RA Lempert & S Saltzburg, A Modern Approach to Evidence, West Publishing, St Paul, 1977, 151-3.
[54] JH Wigmore, A Treatise on the Anglo-American System of Evidence, 3rd edn, Little, Brown & Co, Boston, 1940, para 57.
[55] Lempert & Saltzburg, 151-3.
[56] R Eggleston, Evidence, Proof and Probability, 2nd edn, Weidenfeld & Nicholson, London, 2nd edn, 1983, 97-8.
[57] A number are described as MJ Saks & R Hastie, Social Psychology in Court Van Nostrand Reinhold, New York, 1978, 156-7.
[58] See eg AN Doob & HM Kirshenbaum, ‘Some Empirical Evidence on the Effect of s 12 of the Canada Evidence Act on an Accused’ (1972) Crim LQ 15, 88-96; AP Sealy & WR Cornish, ‘Jurors and their Verdicts’ (1973) 36 Mod L Rev 496-508. See para 435.
[59] Lempert & Saltzburg 227-8, noted this danger that the fact-finder may be inclined to acquit a person who has performed ‘good’ acts, regardless of the facts of the case in question: ‘knowledge of the accused’s good character may prejudice the jury in his favour, since their regret at mistakenly convicting an innocent defendant of good character is likely to be quite high’.
[60] Police Working Party, Submission (April 1983) 8, argued that where a prominent doctor or lawyer was charged with a sexual offence involving children, evidence of his reputation in his professional field would not be relevant. Under the proposal the court would consider first whether it was relevant and then whether the relevance discretion should be applied (see cl 43, 44 and 114).
[61] Lempert & Saltzburg, 230-1.
[62] The draft legislation classifies the former evidence as opinion evidence and provides that the hearsay and opinion rules are not to apply—see clause 95.
[63] It does not seem to have been adopted in the United States.
[64] See para 795 and Appendix C, para 168.
[65] Plato Films v Speidel [1961] AC 1090, 1102 (Devlin J) asserted that the ‘bad reputation which is pleaded in mitigation of damages [in defamation suits] must bear some relation to the libel that is complained of. One cannot, for example, mitigate the fact that one has falsely called a man a traitor by proving that he had a reputation for loose morals’. The New South Wales Law Reform Commission limited rebuttal to ‘any aspect of the disposition of the accused’ of which he had tendered evidence Working Paper on Evidence of Disposition, Sydney, 1978, 122, s 111(5)(e).
[66] See para 403.
[67] See para 741. Note also the discretion.
[68] eg admitting evidence of a party’s contracts with third parties to show his customary practice; admitting evidence of a party’s previous accidents in a negligence action.
[69] cl 114; for criminal trials, see below, para 810.
[70] See para 403.
[71] H Kalven & H Zeisel, The American Jury, Little, Brown and Co, Boston, 1966.
[72] The author’s term for situations involving only one assailant, non-strangers and no proof of extrinsic violence: 253.
[73] Kalven & Zeisel, 242-57.
[74] In addition, the accused had claimed, without offering additional proof, that the prosecution witness worked as a prostitute.
[75] Kalven & Zeisel, 251.
[76] S Feldman-Summers & K Lindner, ‘Perceptions of Victims and Defendants in Criminal Assault Cases’ (1976) 3 Crim Justice & Behaviour 135; C Jones & E Aronson, ‘Attribution of Fault to a Rape Victim as a Function of Respectability of the Victim’ (1973) 26 J Personality & Soc Psych 415; Zelling J in R v Gun, ex parte Stephenson (1977) 17 SASR 165.
[77] In this process of reasoning the occurrence of such events is seen as unlikely to be coincidental, leading to the conclusion that they are connected, and connected to the relevant person.
[78] See para 400-2.
[79] Showing that a person accused of a particular burglary has committed prior burglaries does not, for example, demonstrate that he is more likely than the thousands of other people with burglary convictions to have committed this particular one. But it may be significantly probative if the issue in the trial is only one of mental state.
[80] New South Wales Law Reform Commission, Working Paper, Evidence of Disposition, Govt Printer, 1979, 21 (NSWLR WP) quoting Willes J in R v Rowton [1865] All ER Rep 549.
[81] (1983) 57 ALJR 110, 116.
[82] Gibbs CJ in Perry v R (1983) 57 ALJR 110, 113.
[83] See R v Straffen [1952] 2 QB 911, discussed in para 400.
[84] cf R v Ball [1910] UKLawRpAC 59; [1911] AC 47. Compare the situation where a man found in a stranger’s premises and charged with burglary claims that he had been lost, evidence of previous acts of burglary would be substantially probative only via propensity reasoning: R v Harrison-Owen [1951] 2 All ER 726.
[85] See Cross on Evidence, para 14.1; Z Cowen & PB Carter, Essays on the Law of Evidence, Oxford University Press, London, 1956, 160-1; DW Elliott, ‘The Young Persons Guide to Similar Fact Evidence’ [1983] Crim L Rev 284; DK Piragoff, Similar Fact Evidence, Carswell, Toronto, 1981, 191; C Tapper, ‘Proof and Prejudice’ in E Campbell & L Waller (ed) Well and Truly Tried, Law Book Co, Sydney, 1982, 198; Waight & Williams, 396; the recommendations of the Criminal Law Revision Committee (England and Wales) Eleventh Report, Evidence (General), Cmmd 4991, HMSO, 1972, 174-5, 58-9: NSWLRC WP, Disposition, 32.
[86] See Tapper, 177, 206-7.
[87] See Need for Reform, para 400.
[88] This approach moves away from the use of categories, like ‘system’, ‘accident’ and ‘innocent association’ which, while they group together types of situation in which similar conduct evidence is likely to possess a high degree of probative value or draw attention to the importance of the other evidence in the case, do so in an imprecise and haphazard way and have been accorded greater significance than they ought to possess. The categorisation approach was rejected by the House of Lords in DPP v Boardman [1975] AC 421.
[89] See Appendix C, para 169-70.
[90] There will be less appellate control, the powers being discretionary in form. Therefore, it will be more difficult to argue that the trial judge erred in admitting the evidence, This point, however, could be dealt with by legislation empowering the appellate court to apply its own judgment to the case or by formulating the proposal in such a way as to ensure it is not treated as a discretion.
[91] Due to the sufficiency of the other evidence with respect to the proof of a particular issue, ‘the resulting minute peg of relevance of the similar fact evidence may be entirely obscured by the quantity of ditty linen hung upon it’: Wakefield J in State v Buranis (1958) 138 Aft (2d) 739 (Canada).
[92] Lord du Parq in Noor Mohammed v R [1949] AC 181, 1921 (PC).
[93] Bray CJ in R v Heidt (1976) 14 SASR 574, 581.
[94] See Appendix C, para 169-70.
[95] The discretion relied upon, the relevance discretion, is contained in cl 114.
[96] Justice Neasey, a member of the Evidence Division at the time when final policy decisions were made.
[97] [1894] AC 57, 65.
[98] eg Piragoff; Cross on Evidence; Cowen & Carter, ch 4; LH Hoffman, ‘Similar Facts after Boardman’ (1975) 91 LQ Rev 193; and see Blackburn v DPP [1975] AC 421, 456-7 (Lord Cross of Chelsea).
[99] For a discussion of the law, see Appendix C, para 169-70.
[100] As to the meaning of ‘propensity’ in the judicial statements, see Appendix C, para 170. An alternative view is that the term refers to general propensity or disposition which would not be admissible under the majority proposal.
[101] [1978] HCA 29; (1978) 140 CLR 108. For a discussion of the statements of law in these and the subsequent decisions see Appendix C, para 170.
[103] Sutton v R [1984] HCA 5; (1984) 58 ALJR 60, 62-3.
[104] Sutton v R (1984) 58 ALJR 64 (Brennan J). For comment as to whether this represents the law, see Appendix C, para 169-70.
[105] cl 91.
[106] See para 810.
[107] The term ‘relevant similarity’ is intended to prevent the consideration of similarities that logically should not affect the probative value of the evidence. It was thought not to beg the question.
[108] See para 400.
[109] Note: there is no dissenting view about the application of the proposals in civil trials or in respect of the conduct of third parties.
[110] cf NSWLRC WP, Evidence of Disposition.
[111] [1975] AC 421, 454.
[112] See above, para 795.
[113] Although this is unlikely to be a serious problem, except where the witness is himself a party in the case, it is possible to envisage a situation in a criminal trial where the accused will be prejudiced by his association with witnesses who have been shown to have a ‘bad character’.
[114] See latter proposal above, para 801-3.
[115] Note the relevance discretion is also applicable—see para 640.
[116] See above para 795-800; Canadian Federal/Provincial Task Force, Report on Uniform Rules of Evidence, Carswell, Toronto, 1982, s 122, 332-4; 545 (s 122) New South Wales Law Reform Commission, Working Paper, Course of the Trial, Govt Printer, Sydney, 1978, 92-3 (NSWLRC WP, Trial).
[117] See NSWLRC WP. Trial, 82, 84.
[118] cl 85.
[119] See para 789, 793.
[120] See Criminal Law Revision Committee of England and Wales, Eleventh Report, Evidence (General) HMSO, London, 1972, 80. A study conducted in 1968-9 in Western Canada showed a rate of non-entry of the witness box of 73.5 per cent in jury trials and 65.5 per cent in non-jury trials. The English rate for the same period of time was 1.2 per cent: EA Tollefson, in Canadian Federal/Provincial Task Force, 351.
[121] Note the United States experience: Nash v United States, 54 F 2d 1006, 1007 (2d Cir. 1932). Compare D Broeder, ‘Note, Other Crimes Evidence at Trial: Of Balancing and Other Matters’ (1961) 70 Yale LJ 763; Kalven & Zeisel, 160; S Sue, RE Smith, & C Caldwell, ‘Effects of Inadmissible Evidence on the Decision of Simulated Jurors: A Moral Dilemma’ (1973) 3 J Applied Soc Pych 345; ET Higgens & WS Rhodes, ‘Impression Formation and Role Fulfillment: A ‘Holistic’ Approach’ (1976) 12 J Exp Soc Pych 422; W Mischel, KM Jeffrey & CJ Patterson, ‘The Layman’s Use of Trait and Behaviorial Information to Predict Behavior’ (1974) 8 J Research in Personality 231.
[122] R v Cook [1959] 2 QB 340, 348.
[123] eg, charging the accused with perjury. See generally GL Peiris, ‘Law Enforcement and Protection of the Rights of the Accused: A Comparative Analysis of Modern Legal Systems’ [1980] Malayan L Rev 238, 274. The NSW Law Reform Commission commented: ‘Even if false attacks on witnesses are likely, the problem is probably better handled in some other way. The judge has power to remind counsel of his duty not to make irresponsible suggestions which he cannot substantiate. But to depend on the accused’s fear of losing his shield as a disincentive to perjury is to sacrifice too much’. (NSWLRC WP, Disposition, 95).
[124] See para 411.
[125] See above, para 58-62, para 412 and Appendix C, para 186-7.
[126] See para 412.
[127] cl 84.
[128] Reference is not made in the proposal to conduct during the trial. It is difficult to see how a situation would arise where the accused would need to give evidence of a false statement made by a prosecution witness in the trial. As to statements made outside the court, no significance should attach to the fact that the statement was made while the trial was in progress. Leave is not required where the cross-examination relates to bias, motive to be untruthful, physical or mental deficiencies and prior inconsistent statements.
[129] It is not considered necessary to add a further requirement, existing in some jurisdictions, that cross-examination only be permitted in ‘exceptional circumstances’. It is suggested that the various limitations imposed achieve the same result.
[130] See Canadian Federal Task Force, 270, 536; NSWLRC WP, Disposition, 96.
[131] Where the accused has not give evidence against the co-accused, his credibility is irrelevant to the co-accused.
[132] See above, para 802f.
824. Issue only in Criminal Trials. The control and treatment of eyewitness identification evidence appears to be an issue only in the criminal trial. A number of reasons may account for this. Firstly, the balance struck in criminal proceedings, in favour of the accused to minimise wrongful convictions, is not a factor in civil proceedings. Secondly, eyewitness identification is usually an element in the prosecution case, but less frequently so in civil litigation. Where it is an issue in civil trials, it can be dealt with pre-trial by interrogatories. Finally, there will rarely be an attempt before a civil trial to have an eyewitness identify the person in question. This, however, can often be essential in the investigation and prosecution of criminal charges. Research has not revealed any need or demand for the special treatment of identification evidence in civil trials.
825. Distinguishing the Trial and Pre-Trial Contexts. The Commission has previously reported on rules that should apply to the investigation of criminal offences.[1] In particular, rules were suggested for the control of identification parades and photo-identification. Failure to comply with such requirements would not automatically render the evidence inadmissible but would render it liable to exclusion under a discretion vested in the trial judge, unless the prosecution could persuade the court otherwise.[2] That report did not address the general question of the rules of evidence needed to control the admission and handling of such evidence in the court having regard to its weaknesses and dangers. These are the issues to be considered in this report. The proposals take account of and supplement the recommendations made in the Commission’s previous report but it is not appropriate, and not intended, to advance proposals dealing directly with pre-trial investigation.[3]
826. Absence of Rules-Rationale. No specific rules exist controlling the admission of eye-witness identification evidence. The evidence is subject to discretionary control in criminal trials, like all other evidence.[4] There is some judicial recognition of the need to give warnings to juries in criminal trials eg, where the eyewitness and accused are strangers—but this involves the application of the general power of the trial judge to give appropriate directions to the jury. If there is a rationale behind this approach it is that eyewitness identification is not necessarily more unreliable or prejudicial than other evidence or that, if it is, this approach is appropriate. The Commission’s view is that neither assumption is valid. The issue has been considered above.[5]
827. The existing approach may also assume that the standard methods of testing evidence by cross-examination and assessing the demeanor of witnesses provide adequate protection. But this is not so. As the Devlin Committee commented:
The problem peculiar to identification is that the value of the evidence ... is exceptionally difficult to assess. The weapon of cross-examination is blunted. A witness says that he recognizes the man, and that is that or to be accepted or rejected. If a witness thinks that he has a good memory for faces when in fact he has a poor one, there is no way of detecting the failing. Lord Gardiner in a discussion in the House of Lords on 27 March 1974 said truly:The danger of identification is that anyone in this country may be wrongly convicted on the evidence of a witness who is perfectly sincere, perfectly convinced that the accused is the man they say, and whose sincerity communicates itself to the members of the jury who therefore accept the evidence.[6]
828. Competing Policy Considerations. In formulating proposals for controlling the admission and treatment of eyewitness identification evidence the policy objectives originally identified must be balanced—aiding the fact-finding function of the courts, ensuring fairness for the parties, minimising risk of wrongful convictions, and avoiding any adverse impact on the time and cost of litigation. We must also recognise that to successfully enforce the law, the prosecution has to be able to prove the identity of the accused as the person who broke the law. Law enforcement would be severely hampered if too rigid an approach were taken to the admissibility of identification evidence.
829. While it would be consistent with other proposals to take the primary position that the prosecution should be able to tender the best evidence available to it, it would also be consistent to impose controls designed to minimise the risk of wrongful convictions because of the dangers associated with eye witness identification evidence. The critical questions appear to be the type of controls to be adopted and the balancing of their positive impact on accurate factfinding and on the minimisation of the risk of wrongful convictions against any negative impact they may have on the time, cost and effectiveness of criminal trials and law enforcement.
830. Identification Parade as a Condition Precedent. An exclusionary rule was proposed in the Research Paper published on this topic.[7] The primary proposal was that no eyewitness identification evidence would be admissible for the prosecution—whether dock identification or evidence of an out of court identification—unless an identification parade had been held prior to the act of identification. Satisfaction of this condition was not required where it was not appropriate[8] or not reasonably practicable.[9] It was contemplated that where the accused refused to co-operate the latter exemption would apply. It was also provided, however, that if the accused refused because he could not have his lawyer present, his refusal should be regarded as justified. An identification parade would have to be held at another time. This proposal was developed from that of the Devlin Committee. That Committee, however, made the requirement of a parade a condition precedent to a dock identification only and did not extend it to all eyewitness identification evidence.[10] The proposal was to ensure that the best evidence of identification was placed before the court. It addressed the practical problems of organising and holding identification parades through its exceptions.[11]
831. This proposal received support but it has also been criticised as impractical. It has been put to the Commission that, while evidence of identification is needed in many cases, it is rarely in issue, particularly in minor offences.[12] Yet such a proposal would apply to the trial of all offences—ranging from minor traffic offences to serious offences. The problems said to arise are:
(a) It is not feasible to organise identification parades for all cases. The Commission has been advised that parades are very uncommon in Federal Police investigations outside the ACT because of the nature of the work and the difficulty of organising them. People are reluctant to participate. A significant consideration in the decision to hold a parade is the seriousness of the offence.[13] It was put to the Commission that as a result the proposal would be a charter for acquittals.[14] This however, would depend on whether the prosecution could show that a parade was not practicable.[15]
(b) The court would have to consider the issue every time eyewitness identification evidence was called.[16] This criticism, however, overstates the position, as identification can be established by a variety of means—eg, admissions of identity by the person arrested or charged used at the trial,[17] circumstantial evidence, expert evidence. Nonetheless, it is true that eyewitness identification evidence will be necessary in a significant number of cases. The issue is whether, having regard to the serious potential for unreliability of this evidence, such a task is appropriate or too onerous.
(c) The police, out of an abundance of caution, may feel that they need to hold identification parades notwithstanding that identity is not seriously in issue.[18] The issue is whether such expense and inconvenience would be warranted.
(d) Such a proposal could have a significant impact on the rate of convictions and acquittals because it could result in the prosecution failing to establish a prima facie case in situations where, at present, the evidence would be admitted and not be disputed.[19] It could have a significant impact on the balance struck between prosecution and accused.
A danger with too stringent a proposal is that it might be ignored by law enforcement agencies, or read down by the courts as being totally impracticable. If ignored, then the courts would be placed under pressure to admit evidence in spite of the requirements, or to contemplate an unacceptable level of acquittals.
832. Possible Qualifications. It may be argued that the exceptions in the Research Paper proposals provided enough flexibility to make the proposals workable as a rule to screen the evidence—was a parade reasonably practicable or appropriate? However, there is much force in the arguments about the impact on the cost and efficiency of the investigatory and trial processes and the potential impact on the balance between the prosecution and accused. Some options have been suggested.
• Limiting the Proposal to Serious Offences. All criminal offences, however, are serious on one view. If this view is not taken, the problem that arises is how to define ‘serious offence’. The seriousness will vary according to the offence, the manner in which it was committed, the effect on its victim and the gravity of the penalty. It is not possible to produce a satisfactory definition encompassing all aspects. To limit the definition to any one aspect would produce arbitrary results.
• Limiting the Proposal to Indictable Offences. This, however, would not cover many serious cases.
• Limiting the Proposals to Cases were Identity is a Real Issue. This approach comes closest to addressing the problem. As has been discussed elsewhere,[20] however, establishing whether something is a real issue is not always an easy task and there are particular problems of principle in requiring the accused to demonstrate that there is a real issue on identity. It also will not assist law enforcement agencies in deciding whether to hold a parade or not—they would have to form a judgment about whether identity would be a real issue at the trial.
• Requiring the Defendant to give Notice.[21] It is difficult to assess how a notice proposal would work. Without any power to dispense with non-compliance it could adversely affect unrepresented litigants and provide represented litigants with a significant tactical weapon—it could become standard practice to serve a notice. With a power to dispense with non-compliance, it is likely that there would be little difference in practice between the proposal, in its research paper form, and the proposal with a notice requirement added. The suggestion would also modify the accusatorial nature of the criminal trial.
• Limiting the Proposal to Cases Depending Substantially on Eyewitness Testimony. Such a limitation is likely to catch those where identification is a real issue. It also limits the proposal to those cases where it is most needed and gives greater predictability for law enforcement agencies—they can make a judgment on their knowledge of the case and the evidence available to them. It would, however, result in unreliable evidence of identification being received. Even where the identification evidence is not of major significance it can still mean the difference between acquittal and conviction.
• Excuse where Parade not Reasonable. A suggestion[22] made was that the absence of an identification parade should not result in the exclusion of evidence of eyewitness identification where it was not ‘reasonable’ to require a parade. It was argued that this test would be more certain than the test ‘not reasonably practicable or appropriate’ to hold a parade. It is thought that a ‘reasonable’ test would not be more certain. Its advantage, however, is that it would enable the seriousness of the offence, the importance of the eyewitness identification and the practicality and appropriateness of a parade to be taken into account. It provides the means of taking into account the differing and competing circumstances that can arise.
833. Proposal. The proposal advanced is similar to that contained in the original research paper the holding of an identification parade should remain as a pre-condition to admissibility. It is modified to include the last mentioned qualification excusing the failure to hold an identification parade where to hold it would not be reasonable. It is the most satisfactory one. Identification evidence is defined to include evidence of a person who witnessed the identification. The hearsay aspect of such evidence is dealt with by the hearsay proposals. It is contemplated that it would not be reasonable to hold an identification parade where an arrested suspect refuses to co-operate. The view is taken that the suspect should have the right to refuse but that the prosecution cannot be prevented from attempting to obtain the best identification evidence. The only exception to this proposition is where the suspect refuses to attend an identification parade on the ground that he wants a lawyer present. If, however, it was not reasonably practicable for a lawyer to be present—eg, if his lawyer is not available and he refuses to get another one—the prosecution should be permitted to use other identification evidence. It would also be not reasonable to require the holding of an identification parade before arresting a suspect where the suspect is invited to attend an identification parade and refuses. Nothing in the proposal would prevent the use of an informal ‘showing’ in a group of people and the admissibility of evidence of it if an identification parade was refused. The proposal complements in the court those advanced by the Commission in its Report on Criminal Investigation, for pre-trial investigation.[23]
834. Consideration was given to limiting evidence given to the statement—‘that person looks like the person who did it’—and to the reasons for saying so. It was suggested to the Commission that this is the best evidence a witness can give and that it would reduce the problems in the area if, both in identification parades and in court, witnesses were so limited—particularly the problem that witnesses are under pressure to say, ‘That’s him’, and, having done so, become convinced of the accuracy of the identification. It is for the court to assess the accuracy and strength of the assertion of a resemblance. Against this it may be said that to insist on such a limit would weaken the force of sound identification evidence. Further, it would make the evidence seem artificial. There will be cases where the eye witness can properly give more positive evidence, and such a limit would prevent the witness from doing so.
835. Dangers of Photo-Identification Evidence. Evidence of photo-identification using police photographs carries the additional dangers of unreliability and prejudice.[24] As to the latter it raises the inference that the person identified has a criminal record. The Research Paper proposal was that such evidence should be inadmissible unless the issue of identification was raised by the accused. This approach was generally regarded as too stringent. The critical issues appear to be the likely prejudicial effect of the evidence and the absence of knowledge and, therefore, evidence of the accused or his representative as to the manner in which it was conducted. Whether it is more unreliable than other forms of identification is debatable. The photograph may be a more accurate representation of the offender than his appearance in an identification parade. The suspect may have been seen in conditions essentially black and white. Further, it has some advantages over an identification parade—the suspect in a parade may identify himself through anxiety or distress; more people can be used; it may be easier to select people with similar characteristics; the eyewitness may not assume that the suspect is among those whose photographs appear.
836. The fact that the accused or his representative will not have been present to observe the procedures used is a problem best dealt with by proposals such as those advanced by the Commission in ALRC 2, Criminal Investigation[25] requiring a record of the identification to be kept and made available to the accused on request. It is the potential for prejudice at the trial that gives the greatest concern and warrants control over admissibility. Prejudice can arise in at least two ways:
• Admitting the Photographs. If the photographs are received in evidence and that alleged to be of the accused appears to be a ‘mug-shot’, it will be assumed that the accused has a record.
• Evidence Without Photographs. It is possible to give the identification evidence without producing the actual photographs. In the absence of any evidence, however, that the photographs included people without criminal records, it will be assumed that the photographs were of people with criminal records and that the accused had a record.
There can be no doubt that such assumptions will seriously prejudice the accused in all cases. We delude ourselves if we think otherwise. It is appropriate, therefore, to frame rules to control the admissibility of such evidence.
837. Proposal. It is proposed that the evidence of identification by police photographs[26] adduced by the prosecution should not be admissible unless the photographs used included those of people without criminal records or, where the accused is in custody, the photograph of the accused that is used is one taken after the accused was taken into custody. These proposals would match the suggestion made in ALRC 2, Criminal Investigation[27] that consideration be given to the police accumulating photographs of people ‘other than rogues’. Information to hand about police practice confirms that such photographs are not yet accumulated.[28] It is a suggestion, however, that should be capable of implementation.
838. A final matter for consideration is the approach to be taken on the admissibility of evidence of photo-identification where the investigators have already identified a suspect. Criticism of the practice by the courts over many years[29] does not appear to have altered it. The Commission has already proposed that photo-identification not be allowed where a suspect is in custody unless the suspect refused to attend an identification parade, or to hold an identification parade would be unfair to the suspect or impracticable.[30] The evidentiary consequences of a breach of such a requirement was that an exclusionary discretion applied. The discretion, however, did not address the potential prejudicial effect of photo-identification evidence or the problem of its unreliability. While these can be addressed by existing common law discretions, their apparent failure to change police practices suggests that specific measures are required. An approach should be adopted reflecting the comments of Justice Stephen in Alexander v R:
when photo-identification is used after the detection process is over, that will in itself be a strong ground for excluding from the trial all evidence of identification by a witness who has been involved in that photo-identification. The police will in such a case already know, at the time of the photo-identification, the identity of the ‘wanted man’. Accordingly, the particular advantage which photo-identification offers as a means of supplying that information will no longer apply. Instead it will possess only its character of a second-best model of identification, particularly prone to error and also productive of those well-recognised consequences so likely to be prejudicial to an accused. This will, in most cases, be reason enough, at least where some more reliable mode of identification such as an identification parade was available, to exclude from evidence the identification testimony of a witness whose testimony has been infected by contact with photo-identification.[31]
It is proposed that evidence of photo-identification by police photographs carried out when a suspect is being held under restraint by the police should not be admissible if an identification parade was not held beforehand unless it would not have been reasonable to hold such a parade.[32] For similar reasons, admission of evidence of identification by ‘Identikit’ and like pictures should be controlled in the same way.[33] Finally, the admissibility of such evidence will be subject to the proposed exclusionary discretions which relate to prejudicial evidence and illegally or improperly obtained evidence.
839. It remains open under the proposal for the accused to adduce evidence about photographic identification—for example, it may have affected the identification at the identification parade. If the accused wishes to raise the issue, however, the prosecution should be able to tender evidence of the identification notwithstanding the proposed rules and this is proposed. The admissibility of such evidence would be subject to any other exclusionary rules and to the procedural law on reopening the prosecution case. The accused, however, would normally have to cross-examine prosecution witnesses about the identification.[34]
840. Proposal. Despite the proposed controls over admissibility, the dangers of eyewitness identification evidence remain and there is a need to clarify and tighten the law on the obligation of the judge to give appropriate directions to the jury about how to handle the evidence and the obligation to direct acquittals. The danger of misestimation of the value of eyewitness identification evidence must be borne in mind.[35]
841. The proposal requires that where eye witness identification evidence has been admitted the judge should, on the request of the accused,[36] warn the jury of the need for caution in acting upon eyewitness identification evidence and of the reasons for caution both generally and in the circumstances of the case.[37] The judge should also warn the jury that it is not safe to conclude on the identification evidence that the defendant committed the offence unless there are special circumstances in relation to the identification[38] or other substantial evidence which they accept implicating the accused. Finally, the trial judge should direct the jury to acquit the defendant where those special conditions are not satisfied. This proposal is based upon that advanced by the Devlin Committee.[39]
842. The proposal applies to all eyewitness identification evidence, including dock identification.[40] It is not necessary to put forward more detailed provisions given that, under the present law, the warnings when given must not be ‘perfunctory’.[41] The judge should, for example, refer to the fact that there have been occasions when innocent persons have been convicted on the basis of mistaken identification, that honest witnesses who are certain may be mistaken, that mistakes may be made even where there are multiple eyewitnesses, that mistakes may be made even by witnesses who knew the suspect prior to the occasion in question, and that factors such as the stress of the situation, the lighting and the distance from which the eyewitness stood are all matters to which the jury should give close attention. He should warn them of the problem of estimating the weight to be given to the evidence and the tendency to overestimate the weight of identification evidence. The judge should also warn the jury of the factors in the particular case that are capable of having caused errors in the identification.
843. It has been suggested that it should be enough to warn the jury to exercise care and that it should not be necessary to require the other directions. The Commission, however, shares the view of the Devlin Committee that ‘... merely to say Take Care is not enough. It is like a road sign that tells motorists to drive carefully without mentioning the hazards that lie ahead’.[42] It argued:
An imprecise warning would not be good enough. Nor do we think that it would be satisfactory merely to tell the jury the rule; they cannot be expected to apply it full-heartedly unless they are given the reason for it. This is especially necessary in that the danger in identification evidence is hidden. The extent to which a man may deceive himself is well known to psychologists and to experienced criminal lawyers, but it is not yet universally realised. It may come to be ... Jurors who have thought a little about the point know of course that an identification may be mistaken but do not appreciate the extent to which an apparently convincing witness may be mistaken. Judges from their knowledge of the cases they have handled or read about and perhaps some study of the view of psychologists know that there is a real danger.[43]
Other points to note about the proposals are:
• Corroboration Warning. A corroboration warning is not proposed. There are dangers in directing the jury in the terms of such a warning.[44]
• Power to Direct Acquittal. The uncertainty in the law as to the existence of a power to direct acquittals has been noted.[45] It has been argued that a trial judge should not have the power to direct an acquittal where the prosecution has produced a prima facie case. It is put that to do so is to usurp the jury’s function. It has also been argued that it is unsafe to do so, the trial judge being ‘guided only by his own unaided and uncorrected assessment of the testimony weight’.[46] As to ‘usurping the jury’s function’, the issue is whether this should be done. We ‘usurp the jury’s function’ at present in a number of areas.[47] Whether the general power should exist, it is clearly warranted where evidence of identification consists wholly or substantially of eyewitness identification. As to the danger of error by the unaided trial judge, the argument should be compared with the traditional view expressed by appellate courts that the trial judge is in the best position to assess the credibility of the witnesses. Further, if an ‘error’ occurs (it has not been suggested that it has in those jurisdictions that exercise the power) it will result in acquittal. The provision of such a power, particularly in respect of dangerous evidence like eyewitness identification evidence, reflects the traditional concern to minimise wrongful convictions.
• Reference to ‘Special Circumstances’. The proposal is drafted in such a way as to require the court to consider whether there are special circumstances connected to the particular identification or other substantial evidence that should be considered. The fact that more than one person has identified the accused is not something to be taken into account. If such evidence is lacking the judge is required to direct an acquittal. It has been suggested that this is too stringent.[48] However, the weakness and dangers in the evidence and the miscarriages of justice that have occurred on the basis of multiple eyewitness identification require such an approach. As the Devlin Committee commented:
the possibility of mistake in visual identification is sufficiently high to mean that as a rule evidence of visual identification standing by itself should not be allowed to raise the level of probability of guilt up to the standard of reasonable certainty that is required by the criminal law.[49]
• Lack of Precision. There is, of necessity, a lack of precision in the language used. This, however, does not create problems for the parties preparing for trial. The powers have to be considered at the conclusion of the evidence.
• Limit Discretions to Cases where in Issue. It should not be necessary to give directions where identity is not in issue. However, unless the accused admits he did the act, identity will be in issue. One option considered was a mandatory obligation in all cases. This, however, would result in a trial judge having to solemnly warn the jury about the dangers and weaknesses of identification where the accused has given evidence in which he has admitted committing the act but denied intent. It is proposed that the obligation to give the directions should not arise unless the defendant requests that directions be given.[50] In practice, this should meet the issue in most cases. Where the accused is not legally represented the judge is required to advise him that he may request the direction.
• Non-jury Trial. The proposals specifically relate to jury trials. It has been assumed that it is not necessary to state similar propositions to guide the judge or magistrate in a summary trial in his approach to identification evidence.
844. Consequences of Refusal to Attend Identification Parade. It is not intended to recommend any changes to the law in this area.[51] Evidence of such refusal will generally be inadmissible, being controlled by the relevance proposals and exclusionary discretions. Such refusal, however, will, as at present, tend to assist the admission of other identification evidence.[52]
845. Expert Testimony. The proposals on opinion evidence would enable evidence to be given by experts about the dangers that attach to eyewitness evidence and the strengths and weaknesses of the eyewitness identification in question.[53] This has attracted some criticism—eg, it will confuse and waste time. The courts, however, should not ignore the body of expert knowledge that has developed in this field over many years and should not lag behind developments in expertise in this area. Research shows that, in the field of eyewitness identification, the layman’s understanding of the processes and their problems is extremely limited when compared to that information now available and known, by experts.[54] In addition, where identification parades are held, experts can assess the biases, if any, that were operating.[55]
846. Combining Techniques. The proposals provide a combination of techniques to address the problems associated with identification evidence. Exclusionary rules are necessary for evidence that is at least as dangerous as hearsay evidence and evidence of bad character. The existing powers of directing juries should be strengthened. Finally, it is appropriate for the courts to receive guidance from experts in appropriate cases. Such a course will enable the warnings to juries (and jury deliberations) to be that much better informed and over time serve to educate all involved in criminal litigation.
[1] Australian Law Reform Commission, Interim Report No 2, Criminal Investigation, AGPS, Canberra, 1975 (ALRC 2).
[2] ALRC 2, para 120.
[3] Similarities include a general warning, an exclusionary discretion where there are irregularities etc and emphasis on identification parades. The proposals go further, as they must, in addressing the question of admissibility of evidence obtained and warnings and directions generally, particularly, in the light of the Departmental Committee on Evidence of Identification in Criminal Cases, Report to the Secretary of State for the Home Department, HMSO, London 1976 (Chairman: Lord Devlin) published after ALRC 2.
[4] Appendix C, para 189.
[5] See para 417-8.
[6] Devlin Committee Report, para 1.24 and also para 2.5; see also para 586 (text accompanying n 72-6).
[7] L Re, Evidence Research Paper No 12, Identification Evidence, Australian Law Reform Commission, Sydney, 1983, 14.
[8] eg, the person seen was known to the witness or a name and address was obtained by the police officer.
[9] eg, the person seen had some unusual physical characteristic.
[10] Devlin Committee Report, para 8.4.
[11] For recent discussion of guidelines for a fair identification see RS Malpass & PG Devine, ‘Measuring the Fairness of Eyewitness Identification Lineups’, in SMA Lloyd-Bostock and BR Clifford (ed) Evaluating Witness Evidence, John Wiley and Sons, Chichester, 1983, 81.
[12] HF Woltring, Submission (1 February 1983). However, identification is, in a sense always in issue eg, that the person who embezzled the payroll is the man in the dock. We are here concerned with the situation where identification depends on eye witness testimony.
[13] Senior Sergeant P Duffy, Consultation Meeting (4 December 1982). CL Hermes, Submission (10 February 1983).
[14] CL Hermes, Submission (8 December 1982).
[15] It was also put that it would not be possible to arrest any person. The proposal, however, does not control that stage. Evidence of identification before arrest would be admissible because until arrest it is not practicable to organise a line-up without the willing consent of the suspect.
[16] HF Woltring, Submission (8 December 1982).
[17] Auckland City Council v Jenkins [1981] 2 NZLR 363.
[18] HF Woltring, Submission (8 March 1983).
[19] CL Hermes, Submission (8 December 1982).
[20] See para 715f.
[21] CL Hermes, Submission (8 December 1982).
[22] National Police Working Party, Submission (June 1983).
[23] In that Report it was stated that the Commission would not favour any compulsory power to require participation in identification parades. In relation to this matter it was noted that unwilling suspects can easily abort the proceedings by drawing attention to themselves (ALRC2, 125). It was also stated that the accused should be advised that participation in a line-up is not compulsory and that he may have a lawyer present during this part of the investigation. The recommendation made in this Report is consistent with the Commission’s earlier position.
[24] See above, para 435.
[25] ALRC 2, para 126.
[26] The proposal is limited to photographs kept by police forces and does not apply to other law enforcement agencies (or penal authorities). It is the particular problem of police ‘mug shots’ that is most urgent.
[27] ALRC 2, para 128.
[28] National Police Working Patty, Submission. The second option offers the best protection. The first option will prevent the certain conclusion being drawn that the accused has a criminal record. It will still be possible, however, to speculate or assume that the accused probably has a record. This, however, would be a significant improvement on existing law.
[29] eg, Davies and Cody v R [1937] HCA 27; (1937) 57 CLR 170, 181 and see above, para 435f.
[30] ALRC 2, para 126, c 43(1), Criminal Investigations Bill 1981 (Cth) s 35.
[31] [1981] HCA 17; (1981) 34 ALR 289, 305; Murphy J, 320.
[32] For the interpretation and application of these terms see above, para 833. Stephen J focussed on the state of knowledge of the police, not on whether the suspect was in custody. The latter was chosen for the proposal as being more practical.
[33] ALRC 2, para 129; Criminal Investigation Bill 1981 (Cth) s 35. Identikit identification is a less reliable method and it introduces new information to the witness which is likely to distort his memory and affect any later attempt at identification—see above. For recent discussion of Identikit and like methods and photo-identification see GM Davies, ‘Forensic Face Recall: The Role of Visual and Verbal Information’, and A Baddeley & M Woodhead, ‘Improving Face Recognition Ability’, in Lloyd Bostock & Clifford.
[34] See above, 634, 5 and cl 42.
[35] See above, para 426 and 430.
[36] The defendant is to be informed of his rights unless legally represented.
[37] See the general requirement to give a warning on reliability below, para 1015-20.
[38] The act of identification is an equating process—comparing the memory of the person in the original with the individual produced for comparison. Regard should be had to the circumstances relating to each.
[39] It differs from that proposal in that, in prescribing the conditions to be satisfied it does not use the expression used by the Devlin Committee, ‘the circumstances of the identification are exceptional’. It was thought that the expression was unsatisfactory. Is it exceptional that a person knew the assailant? Are the ‘circumstances of the identification’ matters such as the lighting, distance, etc? Does it necessarily refer to matters such as the peculiar physical characteristics of the person identified?
[40] The proposal is not limited to cases that consist wholly or substantially of evidence of eyewitness identification. This is the approach suggested by the Devlin Committee and adopted in R v Turnbull [1975] QB 834. The dangers exist whether the evidence is vital or just a minor link in the chain.
[41] See above Kelleher v R [1974] HCA 48; (1974) 131 CLR 534, 551.
[42] Devlin Committee Report, para 4.82.
[43] id, para 4.81.
[44] See above, para 490.
[45] See Appendix C, para 194.
[46] HH Glass, ‘The Insufficiency of Evidence to Raise a Case to Answer’ (1981) 55 ALJ 842.
[47] eg, exclusionary rules, corroboration requirements etc.
[48] National Police Working Party, Submission.
[49] para 4.55.
[50] cf Criminal Investigations Bill 1977 (Cth) s 69; Criminal Law Revision Committee, 11th Report, Evidence (General) HMSO, London, 1972, Para 196ff. cl 21, s 74: ‘alleged expressly or by ... implication by or on behalf of the accused that the identification is or was mistaken’—this is thought to be too narrow and not to reflect the accusatorial nature of the trial.
[51] R v Clune (No 2) [1982] VicRp 1; [1982] VR 1, 26.
[52] R v Clune (No 2) [1982] VicRp 1; [1982] VR 1.
[53] At present not admitted because it relates to normal behaviour; eg, R v Turner [1975] QB 834.
[54] See FB Woocher, ‘Did Your Eyes Deceive You? Expert Psychological Testimony on the Unreliability of Eyewitness Identification’ (1977) 29 Stan L Rev 969.
[55] EF Loftus, Eyewitness Testimony, Harvard Uni Press, Cambridge Mass, 1979, 145; BR Clifford ‘The Relevance of Psychological Investigation to Legal Issues in Testimony and Identification’ [1979] Crim L Rev 153, 160; R Buckhout, ‘Eyewitness Testimony’ (1974) 231 (no 6) Scientific American 23-31; AN Doob & HM Kirschenbaum, ‘Bias in Police Line-ups—Partial Remembering’ (1973) 1 Journal of Police Science and Administration 287-93; JV Barry ‘The Problem of Human Testimony’ (1938) 11 ALJ 314, 316. See Lloyd-Bostock & Clifford.
847. The Operation of Privilege. Privilege has been defined as:[1]
information which might assist it to ascertain facts relevant to an issue upon which it is adjudicating.[2]
This definition is appropriate for most of the rules discussed in this chapter—for example, legal professional privilege, communications to doctors and priests, self-incriminatory statements, communications to or between spouses and title deeds. An exception is Crown privilege or state interest privilege—where the court has an obligation to reject evidence even though no objection is taken.[3] The modern legal use of the word ‘privilege’ relates properly to a right or obligation of a party or witness not to give certain kinds of evidence in certain specified circumstances.[4] Usually the privilege is supported by a public interest unconnected with the trial process itself. Exceptions to this proposition are legal professional privilege and the privilege protecting settlement negotiations.
848. The Need to Justify Privileges. In the formulation of proposals a fundamental concern is the public interest in an effective and credible trial system. Production of all relevant evidence enables litigation to be decided on the basis of a genuine attempt to find the facts and helps to ensure a fair trial for all concerned. There is thus an important public interest in ensuring that as much relevant material as possible comes before the court. Accordingly, it may be said that:
Every exemption from this obligation to testify impedes the achievement of an indispensable requirement of civilised life, the fair administration of justice. Exemptions lessen the fairness of a trial, inasmuch as a trial is only as good as the evidence considered by the court.[5]
The granting of a privilege limits the evidence that may be received and thus acts prima facie as an impediment to the fact-finding task of the courts.[6] Any privilege proposed must be justified and this must be done by reference to a public interest whether incidental to the administration of justice or to some other public interest. The decision whether to allow a privilege must be the result of the weighing one against another of these competing interests. In the weighing process primacy must be given to the courts’ need for evidence and to override that a case must be made out sufficient to counterbalance this established public interest. The burden, too, must at least to some extent fall upon those who argue that the law needs to be changed. Problems must be demonstrated and a clear case made for the change proposed. Two issues of general application should be considered, however, at this stage.
• Privilege and Privacy. ‘Privacy’ has been described[7] as the part of his life which the ordinary citizen considers particularly his own and for which he claims freedom from outside interference or unwanted publicity. Justice McClemens,[8] after noting the description, went on to suggest that:
Another, perhaps better approach is to regard privacy as that area of a man’s life which, in given circumstances, a reasonable man with an understanding of the needs of the community would think it wrong to invade.[9]
Another approach is to focus upon particular interests of the individual. Interests which emerge in discussions of privacy[10] include an interest in controlling entry to the ‘personal place’ (territorial privacy), an interest in freedom from interference with one’s person and personal space (privacy of the person) and an interest in controlling the information held by others about oneself (information privacy).[11]
In the present context it is the last category which is the most relevant. It may be argued that the dignity and person of the individual are in some way being trespassed upon by those who acquire information about him which is not intended for general consumption. To a significant extent this may be said to belong to him and perhaps to those to whom he voluntarily entrusts it. This is a concept dependent upon modern notions of individuality, but it is one which is either viewed as a positive right[12] or a right that should be recognised as such. An issue for the law of privilege is whether and to what extent rights to privacy should be recognised by the evidentiary laws of privilege[13]—should privacy interests be considered in the process of balancing public interests?
Privacy rights, however, are not absolute; they are subject to qualification by competing public interests such as freedom of expression, freedom of information, public health, the prevention and detection of crime and apprehension of offenders, the efficient operation of government instrumentalities and the effective conduct of litigation. By giving the same protection to communications made pursuant to confidential relationships, the law of privilege may be said to recognise ‘rights to privacy’. At the least, by requiring the courts to take into account ‘privacy interests’ or ‘the need for confidentiality in certain relationships’, the law would be according a respect to modern notions of privacy.[14] The public interest, however, traditionally recognised that litigation must always to some extent ‘invade privacy rights’. The importance of the satisfactory functioning of the trial system must be recognised. Thus while ‘rights to privacy’ should be considered in the balancing of public interests, they are in no sense determinative.
• Privilege—Property in Information.[15] Sometimes it is argued that people have a form of proprietary right in respect of information about themselves—for example, information divulged during treatment by a doctor or a psychotherapist. Certainly, people possess an interest in information about themselves but that interest may well be no different in character, save in its immediacy of personal interest to the individual, than that of many others who may acquire an interest in the information. In general terms, it is highly dubious whether it is appropriate to speak in terms of a person’s proprietary rights over data by reason only of its reference to that person.[16]
849. Privilege—The Approach. The approach of the proposals is to keep the privileged material to a minimum and the reception by the courts of relevant material to a maximum. At the same time, however, it is recognised that the law and the interests of justice are not always paramount in society and that the law should recognise the role. and the importance of other interests. The public policy interests involved in the maintenance, abolition or creation of the privileges are canvassed in the succeeding paragraphs and proposals formulated on the basis of where the balance should be struck between the competing policy interests. Where there is a public interest in protecting material, rules have been formulated with exceptions unless this is not practical or appropriate. In those cases a guided discretion approach has been adopted.
850. Consideration is given first to those privileges that are generally recognised by the law. They relate to:
• self-incrimination;
• state interests;
• identity of informers;
• evidence by judges, jurors and arbitrators of their reasons for decision;
• legal services;
• settlement negotiations;
• spousal communications.
The conclusion is reached that such privileges should continue to be recognised and proposals are advanced which address deficiencies in the law where this is necessary.[17] Reference will then be made to privileges that exist in some jurisdictions only. They relate to:
• members of the family of the accused;
• cleric/communicant statements;
• doctor/patient communications.
Other relationships are then considered in respect of which claims for protection have been raised. In all these cases the issue is whether a form of privilege should be created which should attach to such relationships. At present the courts improvise, using discretionary powers, including those relating to contempt of court, to resolve situations where a witness does not want to reveal confidential information. The proposal advanced is that the judge be given an express discretionary power to direct that the evidence not be given.[18] Where any damage to the relationship from the disclosure of the evidence will outweigh the benefit in the trial of having the evidence will depend on the circumstances of each case.[19] Protection is not essential to many of such relationships in all or most circumstances. Two general provisions are included—one imposing an obligation upon the court to satisfy itself that a witness is aware of his rights; the other providing that where the proposal states that evidence may not be given, but it is given (eg before the witness can be stopped), it is inadmissible.
851. The Trial Context. The proposals apply to evidence sought to be given in proceedings. They do not apply to pre-trial discovery and do not apply in other contexts. The terms of reference do not authorise consideration of the application of privileges outside the courtroom. This could create difficulties:
• Pre-trial Discovery. It is possible at common law to rely on public interest privilege, client-legal privilege and the privilege against self-incrimination as grounds for refusing discovery. As the proposals in respect of the latter two privileges differ from the common law, different rules would apply in the same case depending upon whether the issue arose on discovery or at the trial. This would appear to be undesirable and unjustifiable. If the proposals are adopted consideration should be given to extending their operation to pre-trial discovery.
• Other Contexts. A potential problem exists in the case of client-legal privilege. It can be relied upon outside the courtroom and in particular, to limit execution of search warrants. Again different rules would apply depending on the context. This, too, would seem undesirable. It could be addressed at federal level by limiting the operation of search warrants issued under s 10 Crimes Act 1914 (Cth) and like legislation by reference to the proposed evidentiary privilege. A similar approach could be taken in legislation such as the Royal Commissions Act 1902 (Cth).
852. Rationale. The issue to be considered is the availability to a witness of a right to object to answering questions on the ground that, to do so, may expose the witness to the risk of criminal and other proceedings adverse to him.[20] Several justifications have been suggested:
• A Fundamental Human Right. The privilege developed in response to the abuses of past centuries, including the practices of the Star Chamber.[21] It has persisted and is now supported by many as a human right. Justice Murphy has recently spoken of the correlation between human rights and the right to privacy on the one hand and the existence of a privilege against self-incrimination on the other:[22]
The privilege against compulsory self-incrimination is part of the common law of human rights. It is based on the desire to protect personal freedom and human dignity. These social values justify the impediment the privilege presents to judicial or other investigation. It protects the innocent as well as the guilty from the indignity and invasion of privacy which occurs in compulsory self-incrimination; it is society’s acceptance of the inviolability of the human personality.
Griswold remarked that ‘the privilege against self-incrimination is one of the greatest landmarks in man’s struggle to make himself civilised.[23] It has been referred to as a ‘fundamental bulwark of liberty’.[24]
It has, however, been suggested that it is not entirely proper to classify the privilege against self-incrimination by the emotive terminology of ‘fundamental human right’. It has been argued that the privilege came into existence as a means of protection from the abuses of the process in the seventeenth century, notably the Star Chamber, and that with current procedural and evidentiary protections it is not a necessary concomitant of a fair and humane criminal justice system.[25] Whatever its origins, however, the role it plays in defining the relationship between the individual and the State is significant and warrants the categorisation of ‘human right’. It also reflects and supports the philosophy that the State must prove its case without recourse to the suspect. It also protects people against oppressive official behaviour. It must be acknowledged, however, that the protection given outside the courtroom is more necessary than that given in it. In the courtroom controls exist to protect the witnesses. It should also be noted that while one can speak of the privilege in terms of human rights, there is only arguable support in the International Covenant for treating the privilege applied in the courtroom as a human right.[26]
• Encouraging Persons to Give Evidence. The privilege against self-incrimination may encourage witnesses to testify. Its effect is that the witness can give evidence without fear of having to give answers against his own interests. However, the State can give a witness protection by granting a nolle prosequi in respect of offences as to which it is desired that he give evidence. The decision on the entering of a nolle prosequi, though, is that of the Attorney-General alone.[27] Its protection, however, is limited. A nolle prosequi terminates the particular proceedings[28] but is not a discharge[29] or an acquittal on the merits[30] and the courts have been ‘almost unanimous in holding that it is no bar to new criminal proceedings’.[31] Thus, the procedure affords a qualified protection to the witness, his fate resting on the continuing good will of the State.[32]
It is clear that the carrot of not having to give evidence on any subject that may incriminate a witness will have some effect upon those considering giving evidence before the courts. How much effect it will have, however, is another matter. The mere fact of refusal to testify on a certain matter puts the relevant authorities on clear notice that a witness has something to hide.
• Avoidance of Undue Hardship and Perjured Testimony. The witness can escape the unpleasant dilemma of choosing between harmful disclosure, contempt, and perjury.[33] It may be said that a privilege is a reflection ‘of a humane attitude which saves even the guilty from a harsh choice among perjury, recalcitrance or confession’.[34] It must be remembered, however, that the problem arises because of the witness’ past misdeeds. If his slate is clean, the compulsory questioning as to whatever is relevant to the matters in issue is unlikely to cause undue distress or hardship.[35]
• Avoiding Suspect Evidence. If a witness is compelled to answer incriminating questions the quality of the evidence provided may well be suspect because of the likelihood of perjury. The privilege may, thus, be viewed as a recognition by the law of the folly of commanding the unlikely and the untrustworthy. This argument is one of the strongest for retaining the privilege in its traditional form. It is doubtful, for example, whether significant amounts of additional and relevant evidence would be obtained by the substitution for the common law of a certification procedure barring only the use of the witness’ words in later proceedings.
853. Arguments for Abolition of the Privilege. The foregoing considerations warrant the retention of an appropriate form of protection for witnesses. The critics, however, argue that the blanket privilege tilts the balance too much in favour of the individual against the State. It has been said that the privilege is a ‘hiding place of crime’:
Overwhelming difficulties confront the government today in the detection and prosecution of crime. In the case of a large number of offences the proof is difficult, if not impossible of ascertainment without the testimony of individuals accessory to the act.[36]
Douglas Meagher QC recently[37] has expressed grave concern to a similar effect:
It is not putting it too highly to say that if the privilege against self-incrimination is allowed to continue, there will be a whole class of highly intelligent people in our community who will be able to perpetrate massive criminal schemes with impunity. Their belief that they can do so has already arisen, as is shown by the massive taxation fraud of the last decade.
Justice Stewart[38] recommended changes to the Commissions of Enquiry Acts 1950-1954 (Queensland) and the Evidence Act 1958 (Victoria) so that Commissions of Enquiry have power to compel persons appearing before them to answer relevant questions whether or not any such answer may or may not tend to incriminate such persons.[39]
854. The critics are as much, if not more, concerned about the right to refuse to answer questions outside the courtroom. There can, however, be little doubt that the task of the prosecution is made more difficult because it is unable to compel witnesses who may have been involved in the alleged misdeeds to testify concerning anything which might tend to incriminate them. As a result some people may not be prosecuted because the police realise that the necessary evidence can only be elicited from those associated with the accused. In addition, others may be prosecuted but not convicted because the privilege results in insufficient evidence being available against them.[40] Such evidence could only be obtained at the expense of an indemnity from prosecution.
855. It must be questioned, however, whether abolition of the privilege would aid the State in convicting the guilty. The absence of a privilege compels a witness to choose one option within the dilemma of harmful self-disclosure, contempt and perjury.[41] It may well be that the result of compelling a witness to give evidence is that the evidence, when given, will be unreliable and the exercise thus counter-productive. A witness will often prefer to lie than to expose himself to criminal prosecution; the threat of perjury penalties is less directly threatening than the threat of prosecution for the commission of a criminal offence. There can be no doubt that the temptation to prevaricate arises when self-disclosure is insisted upon. Further, the force which makes those involved in organised crime unwilling to testify even when presented with the carrot of having a charge withdrawn against them is the compelling one of fear of reprisal from their syndicate or organisation. This remains unaffected by the creation or abolition of a privilege. Even in the context of crime which is not of the organised variety, it can fairly be said that the incentive for the accused to tell the truth, if compelled to give evidence, declines in proportion to the seriousness of the offence of which he might show himself guilty. The consequences for the trial system are serious in at least two respects. The presence of untruthful evidence will adversely affect the fact-finding task. In addition, it would adversely affect the credibility of the trial system to allow a situation where witnesses appear to give reliable testimony and yet are later shown to be providing versions of events far removed from truth and reality.
856. Another criticism of the privilege is that it can operate in a way that is inconsistent with one of the fundamental concerns of the criminal trial system—that we should minimise the possibilities of wrongful conviction. It has been suggested that the danger of the innocent being found guilty is increased by the presence of the privilege against self-incrimination. For instance, a crucial witness for the accused, one able to supply information that will unequivocally prove his innocence, may refuse to testify on the ground that his testimony may tend to incriminate him. However, abolition of the privilege in such circumstances is unsatisfactory because of the risk of perjured testimony by the witness compelled to give evidence and the resulting risk of wrongful conviction.
857. The Issue—A Fair State-Individual Balance. A basic power must reside within the various arms of government to protect the life, liberty and property of the members of society. For them to be able to do this effectively, they must have powers which will on occasion encroach somewhat upon the freedom of the individual to do as he might please. This as a proposition is unexceptionable. The problem is to define when and to what extent individual rights must take second place to those of the community as a whole.
858. To allow an imbalance between the rights of the individual and the State has deleterious effects of many kinds upon the workings of the community. If excessive priority is given to the individual, his needs will in time not be able to be protected by the State which requires certain kinds of information and certain powers to be able adequately to fulfil the functions which have traditionally been accorded to it. If the other extreme is reached, however, and the State can override rights in the past the preserve of the individual, potential for autocracy and corruption arises.
859. The question in this context, then, is whether a fair balance is rendered more difficult to achieve by the retention, abolition or partial abolition of the privilege against self-incrimination as it applies to witnesses in the courtroom. A number of presumptions should be acknowledged. Because of its resources, the State has a considerable advantage in putting its case against most citizens. Most people dealing with the State are at a substantial organisational, monetary and knowledge disadvantage. In addition, there is considerable potential for internal corruption and misuse of its powers if they are not strictly regulated and controlled. These facts alone demand that very careful checks be kept upon the capacity of the State to interfere with the affairs of its members.
860. Striking the Balance. The policy objectives served by the privilege can be addressed wholly or partly by preventing the State using any evidence given by a witness against that witness in subsequent proceedings, by preventing evidence found as a result of a witness’ evidence from being used against that witness or by banning any prosecution on matters in respect of which the person gave evidence.
861. The first and last options exist in the law of the ACT and the law of Tasmania and Western Australia respectively. The Commission’s enquiries to date have not revealed major difficulties with the application of the provisions. Information has been given to the Commission about the use of the certification procedure in the ACT Court of Petty Sessions. It seems that the certification procedure is being invoked approximately 25 times a year and that it is eliciting useful additional evidence from witnesses. Concern has not been expressed to the Commission that the reliability of the testimony is unacceptably low. However, the witnesses usually called to give evidence are minor figures in the alleged offences and tend to be asked to give formal non-contentious evidence. The issue is whether one of such alternatives, or some other, will strike a more satisfactory balance than a blanket privilege:
• Certification—Evidence not Admissible. Under provisions like that of the ACT, where a witness objects to an incriminating question the judge considers whether he should be compelled to answer it ‘in the interests of justice’. If he thinks the witness should be, then the judge must advise him that if he answers all questions put to him he will be given a certificate the effect of which will be that the evidence given will not subsequently be admissible in evidence against him. The weakness in such an approach is that it covers one only of the consequences of the common law privilege—the witness’ evidence cannot be used against him. It does not cover the other consequence—the witness cannot be compelled to say anything which might lead to further enquiries and the gathering of evidence against him. So the evidence that he is compelled to provide might well set in train enquiries that could lead to his being charged and convicted, perhaps wrongly.[42] Further, the additional evidence extracted by the certification procedure may still be unreliable and thus unsatisfactory. A judge would presumably have to bear this in mind in determining whether to invoke the procedure.[43]
• Certification—Evidence and Consequential Evidence not Admissible. The policy objectives and effect of the privilege would be met if both the evidence given and any evidence obtained as a result of it were not admissible in evidence in any subsequent proceedings brought against the witness. Defining the precise causal link required would, however, be difficult—should a causal connection be sufficient or must it be the sine qua non? It is suggested that, consistently with the policy objectives, it should be sufficient if it appeared that there was a connection. This, however, would cause much evidence to be excluded that would have been discovered anyway. Such an approach also has the very serious practical difficulty that, in any subsequent proceeding, the issue would arise whether the evidence led against the defendant was obtained as a result of the evidence given. The accused will not know or have the means of knowledge and would be likely to cross-examine many prosecution witnesses to determine whether there was any causal link.
• Certification Bar to Prosecutions. This would satisfy some of the policy objectives behind the common law privilege—the giving of the evidence could not give rise to prosecution. To be effective, however, the ban must extend to prosecution by State authorities under State laws. It is very doubtful whether Commonwealth legislative power would justify such provisions. It is also doubtful whether such an approach would serve the public interest. It would prevent prosecution, no matter how much other independent evidence existed. The State would pay a heavy price for obtaining the evidence.
• Optional Certification—Evidence not Admissible. An option that may provide a better balance is a modified version of the ACT certification approach. The modification would be that the witness would choose whether to accept a certificate. A possible procedure would be that the witness object to the incriminating question. If the judge thinks there are reasonable grounds for the claim, he advises the witness that he does not have to answer the question but that, if he does, he will issue a certificate which will prevent any answer being used against him in future proceedings. This may[44] reduce the amount of evidence that would be given under the existing certification provisions. It does overcome the dangers of those provisions, however, by allowing the witness not the judge to be the one who makes the choice. The witness will know what he is likely to be giving away or what leads he may give to other evidence. This approach does not encourage the State to assume an improper position of advantage over the individual. It avoids hardship and minimises the risk of perjured testimony.
862. Proposal. The optional certification procedure is put forward as the preferred alternative. For the reasons given above, it best addresses the competing policy issues. Specific features of the proposal should be noted.
• Ambit of the Provision. A witness under the proposal is limited in his right to object to refusing to give evidence on the ground that it may tend to show that he has committed an offence or is liable to a civil penalty.[45] A witness cannot refuse to give evidence on the ground that it might tend to ‘disgrace’ him, show him guilty of forfeiture or adultery or meriting of ecclesiastical censure. Anachronisms present in the existing law are, therefore, removed.[46]
• Limits to Provision. Evidence with the protection of the certificate may still be given in respect of proceedings for perjury brought in respect of the evidence given:
• Oral/Documentary Evidence. No distinction is drawn in the legislation between the giving of oral and documentary evidence. This reflects the current position. A difference may be said to be that the document in issue in most cases will be one that has been brought into existence for purposes unrelated to the court proceedings. Oral and documentary testimony are, however, often intimately related.
• Natural Persons/Corporations. The law at present in England is that the privilege against self-incrimination applies to an answer tending to incriminate a corporation.[47] The High Court has yet to rule on this question. Expressions of opinion on the subject have not as yet been received by the Commission although some debate in respect of the privilege arose in discussions concerning the National Crimes Commission Act 1982.[48] It is not proposed at present to delimit the privilege or the protection accorded by the indemnity provisions by expressly excluding corporations. The issue will not arise in the courtroom because of the logistic problem that a corporation cannot testify in the box. It is not proposed to advance specific proposals. The Commission’s view, however, is that the rationale for the privilege does not warrant its extension to corporations. The issue would have to be faced, however, if the proposals are to be applied to pre-trial discovery.
• Availability to Spouses. The protection in the legislation is not extended to questions incriminating spouses. It is doubtful whether the common law privilege extends to such questions. While there are dangers of unreliability of evidence tending to incriminate a spouse, it is felt that this should reflect upon the degree of weight to be attached to the testimony rather than its admissibility. Where the witness is the spouse of the accused, the non-compellability discretion will be available.[49]
• Retrospective Certification. Where an objection to giving evidence has been overruled by the court and the witness has given evidence which would tend to show that he has committed an offence or become liable to a civil penalty, the court may give a certificate to cover the evidence so compelled. This provides flexibility and a mechanism for the court to correct what may have been an erroneous ruling. It is an additional safeguard for the witness and is analogous with the common law.
• Informing of Rights. Under the draft legislation, the court must satisfy itself that the witness is aware of his rights.[50]
• Constitutionality. There do not appear to be any constitutional impediments to the legislation as proposed. As an exercise of powers incidental to the judicial head of power, the effect of the Commonwealth legislation will be that the certificate issued by a federal court will be recognised by all courts in Australia. This provides real protection[51] for admissions against interest compelled by the certification procedure and introduces uniformity in the area so far as it can be achieved by federal legislation.
• Inferences from Claim of Privilege. No adverse inference should be drawn from the fact that privilege is claimed. Under existing law, no adverse inferences should be drawn where a person claims a privilege. It is not thought to be necessary, therefore, expressly to forbid the drawing of adverse inferences.[52]
863. Scope of Existing Privilege. This category of privilege, traditionally called ‘Crown privilege’, has covered information relating to the security and safety of the realm, international relations, prevention and detection of crime[53] and the efficient running of the arms of government. If the appropriate government official does not claim the privilege, responsibility lies with the court to raise the matter and satisfy itself that disclosure of the information would not be contrary to the public interest. So it differs from other ‘privileges’ in that it cannot be waived by the person who enjoys it. It is for this reason that Cross and others cavil at the expression ‘Crown privilege’.[54] However, the evidence is excluded, as with most privileges, because of potential dangers outside the courtroom and public interests not connected with the trial process.
864. Proposals.[55] Research and enquiries have not revealed any serious inadequacies in the current common law approach. It is proposed to interfere as little as possible with the common law as it has developed with respect to public interest privilege. It presently requires a balancing exercise, weighing the advantages of non-disclosure of information against the disadvantages.
865. It is important to maintain the present supervisory role of the courts that exists in most jurisdictions. It enables the assessment of claims of privilege by a body without a direct interest in the determination. It cannot be assumed that all claims are justified. To abandon the supervisory role of the courts would ‘come close to conferring immunity from conviction upon those who may occupy or may have occupied high offices of State if proceeded against in relation to their conduct in those offices’.[56] Guidelines for the exercise of the balancing tasks with which it is entrusted are provided. This is intended to improve the predictability of the operation of the proposals and the consistency of their application. As the courts have decided, it is not possible to adopt an approach where rules are provided for categories of evidence.
866. It is proposed that the courts continue to have a responsibility for the protection of matters of State. This, of course, allows for the claim of privilege by appropriate government officials or others concerned. The common law approach is followed but the generally accepted common law formula is not entirely satisfactory. Interpreted literally, it requires the judge to consider the competing public interests at a general level. In fact what is required is a balancing of:
the nature of the injury which the nation or the public service would be likely to suffer, and the evidentiary value and importance of the documents in the particular litigation.[57]
In conducting this task, the relevant public interests must be borne in mind and in determining the ‘nature of the injury’ that may follow from disclosure, regard will be had not only to the harm involved in the actual disclosure but also to the effect generally of the disclosure on the way government is conducted. In the draft an attempt has been made to raise these issues. For the purposes of the section, evidence of matters of State is defined to include—evidence relating to the security or defence of Australia, international relations and relations between the Commonwealth and States; evidence relating to the prevention and detection of offences; or evidence the giving of which would tend to prejudice the efficient and effective operations of government.[58] Guidance is given to the courts in balancing the public interests. Inclusive categories are[59]—the importance of the evidence in the proceeding; if the proceeding is criminal, whether the evidence is adduced by the defendant or by the prosecution and the gravity of the charge; and the likely effect of the disclosure of the evidence for example, upon the effective operation of government. Whether any claim for protection succeeds will depend on the circumstances of the case. The judge, having the responsibility of protecting matters of State, is empowered to inform itself in such manner as he thinks fit.[60]
867. Proposals and State and Territory Legislation. In two Australian jurisdictions, legislation has been passed to authorise the relevant Attorney-General to give a certificate the effect of which is to prevent the disclosure in court of communications, statements and records specified in the certificate as being government communications.[61] The conclusive nature of these certificates would be abrogated by the proposed Bill in trials in federal courts sitting in New South Wales and the Northern Territory. In the case of New South Wales, this is because of s 109 of the Constitution which provides that, in the case of an inconsistency between Federal and State law, the Federal law prevails to the extent of the inconsistency.[62] So far as the Northern Territory is concerned, a complication might be thought to exist by reason of the fact that the legislative power of the Northern Territory is derived from the Commonwealth’s ‘Territories’ power.[63] However, cl 12(3) of the draft Bill clearly indicates that the question should be determined under the Bill and not under the laws of the State or Territory in which the Federal Court is sitting. Accordingly, a certificate under the Evidence Act 1939 (NT) would not have the conclusive effect in a federal court that it would have in a Northern Territory court. However, this is not to say that documents and evidence in respect of which a conclusive certificate could have been given otherwise will not be protected by the privilege under the Bill. Provided the court is satisfied the public interest in admitting the evidence is outweighed by the public interest in preserving secrecy or confidentiality in relation to it, the court will be empowered to direct that the evidence not be given.[64]
868. Procedural Issues. An issue that emerged in the discussion of proposals was whether some procedural proposals should be included to enable the judge’s ruling to be obtained in advance of the trial and to enable an appeal from that ruling—it being likely to touch on highly sensitive matters. This would not appear to be necessary in view of the decision of the High Court in Sankey v Whitlam.[65] It provides a precedent for challenging rulings in this area. In that case, proceedings were issued seeking declarations that the documents in respect of which privilege had been claimed should be produced and could be used if admissible in the committal proceedings. Proposals are not advanced but the issue is raised for discussion.
869. Rationale.[66] Over the centuries the informer has played an important role in the enforcement of criminal, civil and administrative laws. The information received may prompt an investigation or be used as the basis of an arrest or search. It is not unusual for an informer’s communication to motivate and then to form the basis of proceedings before either an administrative agency or a judicial body. Informers’ communications cover a wide variety of subjects, ranging from liquor and narcotics law violations to reports of illegal gambling and organised crime. The categories of informer will differ.[67]
870. The existing privilege protecting the identity of informers is justified as essential to law enforcement:
It is the duty of every citizen to communicate to his government any information which he has of the commission of an offence against its laws. To encourage him in performing this duty without fear of consequences, the law holds such information to be among the secrets of State, and leaves the question how far and under what circumstances the names of the informers and the channel of communication shall be suffered to be known, to the absolute discretion of the government, to be exercised according to its views of what the interests of the public requires. Courts of justice therefore will not compel or allow the discovery of such information, either by the subordinate officer to whom it is given, by the informer himself, or by any other person, without the permission of the government.[68]
At the heart of the rationale for the existence of a privilege for informers’ identities is the fact that the supplying of information to a government official may involve danger to the person of the informer.[69] It is crucial for the reception of information by law enforcement agencies that some measure of protection be accorded to the informer:
It is not enough to say that it is both the citizen’s duty and his right to report law violations; many individuals will remain reluctant to give information to the government unless they are assured effective protection.[70]
While the privilege relating to the identity of informers has the effect of denying to the courts some relevant evidence, it brings before tribunals of fact considerable bodies of information which would not otherwise be available.
871. A limitation generally recognised upon the applicability of the privilege arises from considerations of fairness and particularly the priority given to minimising the risk of wrongful conviction. Where the disclosure of an informer’s identity is crucial to the defence of an accused, or essential to a fair determination of a cause, the privilege is expected to give way.[71] The law properly recognises that circumstances will vary and achieves flexibility by allowing a balancing of different public interests. The content of the privilege has not been spelt out and the recent tendency has been to treat it as an aspect of State interest privilege.
872. Proposal. It is not proposed to recommend any changes to current practice. It is proposed, however, that the identity of informers’ privilege be dealt with under the provisions for State interest privilege.[72] This will maintain flexibility and will give appropriate protection to those informers whose identities should not be divulged. The courts will weigh the importance of the disclosure of the informer’s identity to the conduct of the particular litigation against all other relevant considerations.
873. Rationale. Three justifications can be advanced for preventing the disclosure in evidence of the reasons for decisions of judges, juries and arbitrators:
(a) It is desirable to promote finality in decisions.
(b) Jurors, in particular, should be prevented from ‘being exposed to pressure to which they might otherwise be subject with a view to explaining the reasons which actuated them individually in arriving at their verdict’.[73]
(c) It is necessary to maintain the independence and authority of the judge and confidence in the decisions of judges, juries and arbitrators.
874. There is much to be said for these points. To enable later proceedings to go behind the original decision and open up its decision making processes would be counter-productive. Further, to make public the thoughts of individual jurors and to do so after the event when the evidence, discussions and reasons have to a large extent been forgotten by the jurors can only be misleading.
875. However, as jurors are under no legal compulsion to remain silent after the running of their case it means that leakages can and do become public.[74] When this happens, improprieties are on occasion alleged within the jury and the idiosyncrasies and unusual reasoning processes of some jurors may be revealed. It might be argued[75] that the blanket refusal of the courts to take notice of such improprieties can result in injustices. An interesting case in this regard is R v Thompson[76] where the accused alleged that the foreman of the jury had shown to his fellow jurors a list of the accused’s previous convictions when they retired to the jury room to consider their verdict. The list had not been tendered in evidence and was as prejudicial as it was inadmissible.[77] The Chief Justice Lord Parker stated that if what was alleged had in fact happened it was grossly improper, but that the court had no right to enter the jury room. The accused’s appeal was, therefore, dismissed. In such a case the rule could have worked an injustice. The issues that arise out of the case, however, relate not so much to the admission of evidence as to what are appropriate grounds for appeal from jury decisions. The latter issues are outside the terms of reference and should not be addressed by an evidence statute.[78]
876. Proposal. It is proposed to prohibit evidence of judges, jurors and arbitrators as to their deliberations or the reasons for their decisions. The policy considerations do not justify treating the topic like some rules of privilege which, before they can operate, require a person concerned to protect the communication to claim the privilege. It is proposed, however, that there be exceptions relating to offences arising under Part III of the Crimes Act 1914. These offences relate to the conduct of the trial system. Evidence of the reasons of a judge or juror might be relevant in the trial of such offences. It is doubted, however, whether this would normally be the case. The proposal does not prevent evidence being given in the form of the published reasons.
877. ‘Legal Professional’ Privilege—Rationale.[80] The rationale of the law was discussed by the majority of the High Court in Grant v Downs[81] in the following terms:
The rationale of this head of privilege, according to traditional doctrine, is that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers, the law being a complex and complicated discipline.[82] This it does by keeping secret their communications, thereby inducing the client to retain the solicitor and seek his advice, and encouraging the client to make a full and frank disclosure of the relevant circumstances to the solicitor. The existence of the privilege reflects, to the extent to which it is accorded, the paramountcy of this public interest over a more general public interest, that which requires that in the interests of a fair trial litigation should be conducted on the footing that all relevant documentary evidence is available.
A theoretical basis for all aspects of the privilege was not advanced.[83] More recently, in Baker v Campbell the High Court re-considered the privilege and its rationale. Reference was made to it being ‘a necessary corollary of fundamental constitutional or human rights’.[84] Justice Wilson commented that ‘the adequate protection according to law of the privacy and liberty of the individual is an essential element of a free society and ... the ... privilege ... is an important element in that protection’.[85] Reference was also made to the policy justifications for the privilege generally and specific aspects of it. No common rationale emerged, however, from the judgments.[86] For present purposes, it is necessary to consider its rationale as it relates to the particular materials and communications that are presently protected by the privilege:
• Communications between the Lawyer and Client. Privilege attaches where advice only is sought in addition to the situation where litigation is pending or anticipated. Originally, the privilege was justified on the basis of protecting confidential communications and the privilege was that of the lawyer. What was at stake was the ‘honour’ of the lawyer.[87] For many years, however, the privilege has been regarded as that of the client and the rationale has been the need for frank and complete communication between lawyer and client so that the layman can receive adequate ‘professional assistance in the protection, enforcement or creation of legal rights’.[88] It is thought that the client may be inhibited from making full and frank disclosure of all the pertinent facts ‘unless he were assured that what he said would not be divulged without his consent’.[89] Its application to the purely advice situation is justified on the grounds that even then there is some risk of litigation because in the last resort legal rights are enforced by litigation:
What distinguishes legal advice from other kinds of professional advice is that it is concerned exclusively with rights and liabilities enforceable in law, ie in the ultimate resort by litigation in the courts or in some administrative tribunal. It is, of course, true that on many matters on which a client consults his solicitor he does not expect litigation and certainly hopes that it will not occur; but there would be no need for him to consult his solicitor to obtain legal advice unless there were some risk of litigation in the future in connection with the matter upon which advice is sought. As Lord Brougham pointed out, it is to minimise that risk by ensuring that he so conducts his affairs as to make it reasonably certain that he would succeed in any litigation which might be brought in connection with them, that the client consults his solicitor at all.[90]
It has been suggested[91] that it is unlikely that the privilege is necessary to promote candour on the part of the client. But as Justice Dawson commented—‘If a client cannot seek advice from his legal adviser confident that he is not acting to his disadvantage in doing so, then his lack of confidence is likely to be reflected in the instructions he gives, the advice he is given and ultimately in the legal process of which the advice forms part’.[92]
• Third Party Communications. The reasons so far advanced for the privilege do not justify the privilege that protects the communication between third parties and the lawyer or client in connection with litigation. The freedom of mind of the client is not involved. Williams suggests that it is for this reason that privilege in the United States does not extend into this area.[93] The courts have advanced three arguments:
(a) Necessity. It has been argued that it was necessary that the client be able to prevent disclosure by the lawyer of anything obtained by him when employed by the client. If information obtained by a solicitor for promoting his client’s cause were not privileged, ... it would be impossible to employ a solicitor to obtain the evidence and information necessary to support a case’.[94] Commenting on this rationale, Williams has argued:
... what produces the conclusion that it would be ‘impossible’ for a litigant to employ a solicitor to get the evidence for his case if the evidence could not be concealed is the adversary character of trial in the common law system. ... Given this premise, the objection to complete disclosure is understandable as the efficacy of the adjudicative process depends on the readiness and ability of each party to vigorously search for evidence. A party might be discouraged from making anything but the most cursory inquiries were he to be required to hand over unfavourable evidence to the adversary. Also, under such a system each party might be tempted to simply rely on the adversary to investigate the facts and then wait for discovery to get the results. Either situation would likely produce inaccurate fact-finding as the court would not be presented with all the information that would have been uncovered from a diligent search made by both parties.[95]
(b) The Brief. It has been said that the communications that are protected are materials for the lawyer’s brief.[96] Williams comments that to say that ‘the communications were materials for the brief is only another way of saying that they formed the party’s evidence’.[97]
(c) Non-disclosure of Evidence. It has also been stated that the privilege for third patty communications is intended to serve a number of purposes:
it is considered contrary to the interests of justice to compel a litigant to disclose to his opponent before trial the evidence to be adduced against him. It is considered that so to do would give undue advantages for cross-examination and lead to endless side issues; and would enable witnesses to be tampered with, and give unfair advantage to the unscrupulous.[98]
Williams argues, however, that each of the above justifications point to the rationale being that the privilege is integral to the adversary mode of trial. As to protecting the brief and the evidence gathered for the trial, he argues that:
the privilege was but a logical consequence of the principal characteristics of the system—party responsibility for the collection of evidence and patty autonomy in presenting the evidence that would best advance the party’s case or destroy that of the adversary. What rendered the privilege ‘necessary’ were these characteristics, and the assertion that the material deserved protection as belonging to the party’s brief reflected the same idea. The brief represented more than just the actual documents that constituted or set forth the party’s evidence. It also symbolized the party’s investment of time, expense and effort in searching out the facts. Under an adversary system, how the yield from that investment was to be dealt with ... was the prerogative of the party to decide.[99]
• Notes and Materials Produced by the Lawyer. The law protects from disclosure the result of the lawyer’s work—his notes, the results of research, instructions to counsel, his opinions, even copies of non-privileged documents. The protection has been justified on the basis that:
... they were obtained for the purpose of his defence, and it would be to deprive a solicitor of the means afforded for enabling him to fully investigate a case for the purpose of instructing counsel if one required documents, although perhaps publici juris in themselves, to be produced, because the very fact of the solicitor having got copies of certain burial certificates and other records, and having made copies of the inscriptions on certain tombstones, and obtained photographs of certain houses, might show what his view was as to the case of his client as regards the claim made against him.[100]
The concern is to protect the thoughts, theories and strategies of the lawyer. We thus again find it is the consequences of the system of trial that is the basis of the protection. This was expressly acknowledged in the development of the ‘work product’ test in the United States.[101]
In performing his various duties ..., it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client’s case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways aptly though roughly termed by the Circuit Court of Appeals in this case as the ‘work product of the lawyer’. Were such materials open to opposing counsel on mere demand, much of what is not put down in writing would remain unwritten. ... Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served.[102]
The policy arguments advanced in support of a privilege focus on the public interest in the provision of legal advice and assistance and in the functioning of the trial system. A particular aspect should be borne in mind. There is a public interest in the settlement of disputes. There is a saving in time and expense for those involved and a saving of community resources. Our trial system depends heavily on a high proportion of cases being settled. The lawyer plays a major role in the settlement process and cannot do so effectively without a complete and frank disclosure by the client of the facts of the case.
878. The policy justifications, including the connection between the privilege and the trial system, are such that it is neither possible nor desirable to abolish the privilege.[103] It is these policy considerations that distinguish the lawyer-client relationship from other professional/layperson relationships.[104] It is sometimes argued that if the confidential communication between lawyer and client is to be protected then other confidential communications should also be protected—eg the cleric and communicant. The policy justifications, however, go beyond the protection of confidences.
The restriction of the privilege to the legal profession serves to emphasize that the relationship between a client and his legal adviser had a special significance because it is part of the functioning of the law itself. Communications which establish and arise out of that relationship are of their very nature of legal significance, something which would be coincidental in the case of other confidential relationships.[105]
Whether he gives advice, represents a person or helps the citizen to understand what is or is not permitted in our complex legal system, the lawyer is seen as part of the process of the administration of the law.[106] The privilege must, however, extend no further than is necessary. It may adversely affect the fact-finding task and may ‘detract from the fairness of the trial by denying a party access to relevant documents or at least subjecting him to surprise’. The proposals, therefore, do not set out to extend the privilege but rather are directed to addressing deficiencies in the law.
879. Proposals—Lawyer/Client Communications. Communications between a lawyer and his client and documents by them recording the same should not be disclosed without the client’s permission. The communication must be made in the context of a professional relationship between the lawyer and client or between the client’s lawyers and for the dominant purpose of obtaining or giving legal advice or assistance in relation to pending or contemplated litigation. The proposals have been limited in this way to ensure that evidence about concluded conveyancing and other property transactions would not be excluded.[107] As at present, and consistently with the rationale, the requirement is maintained that the communication be confidential. An issue arises as to whether there should be a statutory presumption of confidentiality where it is shown that there is a client/lawyer relationship. It has not been included because there does not appear to be such a presumption recognised by the law and it is to be expected that the courts will continue to find a confidential relationship where they would at present.[108]
880. Lawyer and client are defined:
• lawyer: means a barrister and solicitor employed or engaged by or for the client, and includes the lawyer’s servants or agents;
• client: means the person (including a corporation) by or on whose behalf the lawyer is engaged and includes his or its servants or agents.
It is not proposed to introduce any special definition to cover the corporate client. Reference was made above to the debate in the United States about the way in which ‘the client’ should be defined when a corporation is involved. It has not been an issue under existing Australian law. This probably results from the different approaches taken in the two systems. In the United States, the material protected by privilege is the lawyer/client communication and there is only a qualified privilege (the ‘work product’) for the proofs of employees obtained by the lawyer unless they come within the definition of client. Under Australian law, the latter have been protected by the lawyer/client privilege and in cases of doubt by the lawyer/third party privilege (where litigation was pending or anticipated).
881. Proposals—Third Party Communications with Lawyer or Client. The major question to be considered is whether and to what extent communications with third persons for the purpose not only of seeking of legal assistance should be protected. It is suggested that to protect such communications where the seeking of legal assistance is only one of the purposes is to give too much protection. The principal options appear to be ‘sole purpose’, ‘purpose which accounts for the existence of the communication’ and ‘dominant’ purpose.
• ‘Sole’ Purpose. The majority judgment in Grant v Downs, advances several arguments for confining the privilege within strict limits.[109] In support of a ‘sole purpose’ test the majority relied upon a narrow formulation of the underlying rationale—the need for full and frank disclosure between lawyer and client. They advanced specific arguments as well:
(a) Avoid Giving an Advantage to Corporations. The majority judgment stated:
An individual seeking legal advice cannot be required to disclose the information he communicated to his legal adviser nor the nature of the advice received; nor may the legal adviser disclose it. However, a litigant is, of course, bound to disclose his own knowledge of relevant facts. It would be curious if, because the litigant happens to be a corporation, the rule was for that reason different. ...
It is difficult to see why the principle which lies behind legal professional privilege should justify its extension to material obtained by a corporation from its agents with a double purpose. The second purpose, that of arming central management of the corporation with actual knowledge of what its agents have done, is quite unconnected with legal professional privilege; it is but a manifestation of the need of a corporation to acquire in actuality the knowledge that it is always deemed to possess and which lies initially in the minds of its agents. That cannot itself be privileged; quite the contrary. If the party were a natural person or, more accurately, an individual not acting through servants or agents, it would be precisely that knowledge which would be discoverable and the party cannot be better off by being a corporation.[110]
The other tests, however, do not place the corporation at an advantage. The knowledge by the individual litigant of the facts in issue is exposed pre-trial by interrogatories as well as by discovery of documents. The same applies to corporations. In answering interrogatories both the individual litigant and the corporation are obliged to make enquiries of their employees and agents before doing so. The reasoning is that the knowledge of the servant and agent is the knowledge of the principal and corporation.[111] Thus even though the person answering the interrogatories may have previously acquired the necessary information through privileged sources, the answers must be given.[112] If the party has no other source of information, however, it may object to answering the interrogatories.[113] As to discovery of documents, the correct comparison is that between the individual party who was acting through servants and agents and the corporation that acted (of necessity) through servants and agents.
(b) Document Would have Come into Existence Anyway. It was stated that:
It is not right that the privilege can attach to documents which quite apart from the purpose of submission to a solicitor, would have been brought into existence in any event, and then without attracting any attendant privilege.[114]
One commentator has pointed out that this argument while supporting the test advanced by Justice Jacobs, does not support a ‘sole purpose’ test.[115]
• ‘Dominant’ Purpose. Accepting the different rationale, it is still necessary to place limits on the protection given in this area. It is suggested that the ‘dominant’ purpose test strikes the correct balance and should be adopted.[116] It is an expression that has been used in other fields.[117] It is a severe test, as it denied protection to the internal reports in Waugh’s case and Grant v Downs. The difference between it and the ‘sole’ purpose test is likely to emerge, however, in relation to communications which occur after litigation has been expressly threatened or commenced.[118] A ‘dominant’ purpose test may be more difficult to apply than a ‘sole’ purpose test. There is, perhaps, more room for argument and false claims of the appropriate purpose. An examination of the document will often be sufficient for the ‘sole’ purpose test but not for the ‘dominant’ purpose test. The issues raised for the court by such a test, however, overlap with those which the courts had to consider under the law that existed prior to Grant v Downs and a dominant purpose test should be workable.
882. The justifications that can be advanced for a privilege for third party communications, however, do not justify extension of the privilege to a purely advice situation—it should be limited to the situation where litigation is pending or is in contemplation. It is proposed, therefore, that communications between:
• a lawyer and a person other than the client, his servants and agents;
• the client and other persons, including servants and agents
should not be disclosed without the client’s permission if it occurs at a time when litigation is anticipated or commenced and the dominant purpose of the communication was to assist in obtaining legal advice and assistance about the litigation. The same protection should apply to documents recording the communication and made by the participants and other materials prepared for that dominant purpose. The lawyer, where involved, must be acting in his professional capacity.
883. Other Features. The lawyer, as part of his normal obligations to his client, will remain obliged to claim the privilege on behalf of the client in the absence of instructions to waive it. Other points to note are:
• Failure to Deliver Document. A document should retain its privileged status although not delivered to the legal adviser.
• Notes and Memoranda. The notes, memoranda, opinions and advices of the lawyer and communications between each lawyer acting for the client produced in the course of and for the purpose of his employment as the lawyer may not be disclosed without the client’s permission.
• Duration of the Privilege. It is proposed that, consistent with its rationale, the privilege should operate indefinitely. This raises the issue, however, of who may waive the privilege and who may claim it—for example, after the death of the client.
• Who may Claim or Waive the Privilege. The authorities have established that the successor in title to an interest in land which is the subject of the privileged communications may claim the privilege and it is suggested that this is the correct approach—the privilege should be related to the subject matter. It is proposed that a provision be included that the successor to the client’s rights and obligations in relation to which the privileged communication took place, or material was prepared, may claim the privilege and may consent to disclosure of the communication and material. The ‘successor’ should include the personal representative of a deceased client and the representative of an insane person should be entitled to claim or waive the privilege.[119]
• Right of Inspection. As under existing law, the court will be entitled to inspect any document in respect to which privilege is claimed.
• Secondary Evidence. So long as the privilege has not been lost in respect of the original communication, secondary evidence of the communication will not be admissible.
• Inferences. As at present, no inferences may be drawn from a claim of privilege.
• The Litigant in Person. The privileges proposed for communications with third parties in anticipation of litigation and for notes and memoranda should apply in fairness to the litigant in person in an adversary system. The need for such a proposal is increased if the rule in Walker v Walker is abolished.
884. Limitations. Privilege would not apply, as at present, to facts or things actually observed by the lawyer unless to give that evidence would involve disclosure of privileged material. In addition, the privilege will not apply to communications relevant to an issue between parties claiming through the same deceased client—for example, setting aside or resisting a grant of probate on grounds of testamentary incapacity or undue influence. It will also not apply in an action between the clients who engaged the one lawyer where the action and communications related to the rights and obligations in respect of which they had engaged the lawyer or in actions by or, similarly, against the lawyer.[120]
885. Loss of Privilege. The privilege should be lost by certain actions and in certain circumstances:
• Disclosure. Reference has been made to uncertainty about the effect of voluntary disclosure by the client and the circumstances in which secondary evidence of privileged communications may be given. As to the first issue, an option considered was that the loss of privilege should be limited to the occasion of the disclosure. However, consistently with the need to ensure that the privilege does not extend beyond what is necessary and having regard to its rationale, voluntary publication by the client should bring the privilege to an end. If the person entitled to claim the privilege, or his servant or agent, voluntarily discloses or consents to the disclosure of the substance of any communication or material protected by the privilege to another person, the protection should be lost as to the part disclosed and connected communications[121] unless the communication or material was disclosed to a co-client or to a person for the purpose of obtaining or continuing legal assistance or the person was tricked into disclosing the material or it was compelled in error.[122] As to the second issue, the protection should not be lost if evidence of the communication or material was obtained accidentally or illegally.
• Fraud. Any communication or material made or prepared in furtherance of the commission of a crime or fraud should not be protected. Both issues—whether there was a crime or fraud, and the purpose of the communication—will be decided by applying the general evidentiary standard, the balance of probabilities. An exception to this will arise where, as is often the case, the crime or fraud is in issue in the case and ultimately an issue for the tribunal of fact. In that situation the test will be whether it is reasonably open to find that the crime or fraud occurred. It is also proposed that the judge be permitted to examine the communication in determining the issues. The proposal also extends to activities that give rise to civil penalty proceedings such as those for breaches of the Trade Practices Act 1974.
• The Administration of Justice. The privilege should not be upheld where to do so would prevent a court enforcing an order of a court or result in the withholding of evidence relevant to the defence of the accused.[123] The privilege applies ‘only because the public interest requires it’ and should not apply where to do so ‘would be contrary to a higher public interest’.[124]
886. Communications to the Police and Prosecution. As under existing law, the proposed client legal privilege will not apply to communications to the prosecution unless a client legal adviser relationship is shown to exist. In the case of indictable offences it may be possible to argue that the Attorney-General and Crown Law authorities were involved as client and legal adviser.[125] Where the privilege is not available, it does not mean that such communications cannot be protected in appropriate cases. The accused does not have the right to inspect statements made by witnesses to the police. He must obtain the leave of the trial judge who will decide whether the statements should or should not be produced.[126] Other privileges will apply—the proposed public interest and confidential communications privileges.
887. Documents relating solely to Party’s Own Case. The privilege protecting such documents is rarely, if ever, relied upon. It has been largely superseded by legal professional privilege. It is, however, the only protection available to the litigant in person and helps to reduce the disadvantage under which he operates in the trial system. It has been recommended that the third party communication privilege be available to the unrepresented litigant. If this is done, it is believed that the above privilege can be abolished.
888. Patents. Under the existing law communications between patent attorney and client are privileged to the same extent as communications between solicitor and client. This should be preserved.
889. Expert Reports. It is not proposed to put forward proposals canvassing the matters dealt with in some State legislation relating to expert reports. These are essentially pre-trial discovery procedures, although they are given teeth by the granting of a discretion to the trial judge to exclude expert evidence where the report has not been disclosed prior to trial.
890. Rationale. Commentators and courts have differed about the rationale for the protection given to settlement negotiations. The major justification for protecting the content of negotiations from disclosure is the public interest in encouraging settlement of disputes.[128] The parties can avoid the cost and time involved in trials. The cost to the community of providing a trial system is minimised. The facilities presently available would be totally inadequate if there was any significant reduction in the number of cases settled.[129] As to other justifications:
• Fairness. Considerations of fairness come into play once the parties are negotiating. Each relies on the other’s good faith in speaking freely. It would be unfair to permit one party to resile from the mutual understanding. Fairness in this sense, cannot satisfactorily explain the protection the law gives to the communication which starts the negotiation.[130]
• Agreement. It is possible to analyse the negotiations in terms of an agreement:
... if one patty writing a letter after a dispute has arisen expresses it to be ‘without prejudice’, the other party by replying to it without demur impliedly agrees to answer and negotiate on the same basis. From this point on, the whole correspondence may be conducted without anyone continuing to express it to be ‘without prejudice’; it will still be protected by the use of that expression in the originating letter. ... Both parties write to each other and continue writing on the mutual understanding or promises that anything said in the correspondence will not be used in court.[131]
The analysis is an artificial one and is even more artificial where the communication initiating the negotiations is not described expressly to be ‘Without Prejudice’. Further, like the ‘fairness’ rationale, it is not possible to use the ‘agreement’ rationale to explain the protection given to the first communication. ‘At most, it would be an offer to negotiate’ which could not be protected unless the recipient expressly or impliedly agreed. Finally, recognition of the agreement is a matter of public policy. Even if one assumes:
that there is an agreement between the parties not to use admissions contained in ‘without prejudice’ negotiations, the ultimate question still remains whether the courts, just as when dealing with contracts in restraint of trade or contracts tainted with illegality, will be prepared to give effect to that agreement. In general, the courts have given effect to such understandings provided that the pre-conditions of the ‘without prejudice’ rule are present. But this attitude in itself is a manifestation of a rule of public policy, namely that in certain circumstances, the court will refuse evidence of admissions despite their patent truth and relevancy.[132]
The public interest in the settlement of disputes is the most satisfactory rationale and is used as the basis for the proposals.
891. General Proposals. In view of the desirability of encouraging settlements, it is proposed that evidence may not be given of the content of communications made in an attempt to settle a civil dispute (including where a party’s agent or a mediator is involved in the negotiations). Proposals are advanced, however, to meet deficiencies in the law. The general rule of exclusion extends to materials produced for the negotiations. The proposal in terms prevents evidence being ‘given’. This formula is to be preferred to other options—eg not admissible. The rationale requires non-disclosure by the parties to the negotiations unless all of them consent. The embargo will not apply to communications which are of a criminal or tortious nature, or are capable of affecting rights and liabilities (such as acts of bankruptcy, defamatory statements, illegal threats, the election of alternative courses of action); and open offers of settlement.
892. The protection will be lost where the communications relate to issues that are settled or where to do so could enable a party to deceive a court about the course of an attempt to settle the dispute (where some evidence may have been admitted). The protection is also lost for the benefit of one party who discloses the whole or part of the negotiations in another action or where all parties consent. The proposal will prevent a third person giving secondary evidence of the protected communications (subject to the above exceptions).
893. Family Court. It is proposed that the comprehensive Act to be produced for discussion should be of general application to enable the issue of uniformity to be adequately considered and that the Act contain a clause preserving the operation of particular clauses in Commonwealth and Territory legislation, such as s 62(4) of the Family Law Act 1975. While some criticisms have been identified[133] close study of the operation of the sections would be required before any changes were recommended.
894. Negotiations Relating to Criminal Charges. No proposals are advanced on this topic. It is intimately connected to the topic of plea bargaining. The Commission has already made recommendations urging a need for openness in plea bargaining.[134]
895. The Issue. At present, the spousal communications privilege applies in both civil and criminal proceedings in Western Australia, South Australia, Tasmania, New South Wales, the Northern Territory and the Christmas and Cocos (Keeling) Islands. In Victoria the privilege does not apply in any criminal or bail proceedings and in Queensland communications to spouses are privileged only in a criminal proceeding where the witness’ spouse is charged. In the ACT spouses are compellable to disclose communications in criminal proceedings.[136] The issue, therefore, is whether the existing protection should be removed and, if it is not, should it be changed and, if so, in what way.
896. Rationale. The rationale usually offered for the privilege is similar to that offered to justify limits on the compellability of spouses.[137]
897. Arguments for Abolition. The subject is not one that is causing undue concern at present. Some commentators, however, are critical. Cross is not particularly sympathetic to the continued existence of the privilege:
On the whole it seems wisest either to retain the privilege in its present attenuated form or else to abolish it altogether.[138]
Hutchins and Slesinger[139] have also questioned whether the occasional compulsory disclosure in court of even the most intimate marital communications would in fact affect to any perceptible degree the extent to which spouses share confidences. McCormick[140] argued that the contingency of courtroom disclosure would almost never be in the minds of the spouses.[141] He goes on to say:
What encourages them to fullest frankness is not the assurance of courtroom privilege, but the trust they place in the loyalty and discretion of each other ...[W]e must conclude that, while the danger of injustice from suppression of relevant proof is clear and certain, the probable benefits of the rule of privilege in encouraging marital confidences and wedded harmony, is at best doubtful and marginal.[142]
McCormick, who it must be acknowledged is one of the most stringent of the privilege’s critics, assigns as the real reason for maintenance and even creation of the privilege notions of ‘emotion and sentiment[143] and says that such motives of delicacy cannot stand in the balance against the need of the courts for disclosure of facts which may have an immediate effect upon a man’s life, liberty or estate. Equally of relevance, however, is the possible effect on the relationship of one spouse giving evidence.[144] The factor which is impossible of assessment is the degree of strain that the absence of a privilege would place upon the matrimonial relationship. It is fair to point out, though, that the marriage relationship is distinguishable from many of the other relational interests already looked at, in that it is more complex. It is suggested that, in the absence of clear evidence, it would be inappropriate to place any further stress by abolition of the privilege upon an institution which is already suffering from many pressures.
898. Proposals. It is proposed that the privilege affecting marital communications be maintained in civil cases.[145] The privilege is of a limited kind—it enables a spouse to refuse to give evidence of marital communications, but does not enable a spouse to prevent the other spouse giving evidence. As with existing law, therefore, the draft legislation treats the issue as part of the topic of the compellability of witnesses. It is proposed, also that a discretion in the form of the compellability discretion in criminal trials be available where the spouse is called as a prosecution witness. The effect of this is that the recommendations complement each other. The judge will consider whether the advantages of receiving the evidence in the particular case outweigh the prejudicial effect the compulsion of testimony may have upon the marital relationship and consider the factors referred to in the compellability discretion. Where the spouse is called by the accused (whether the other spouse or not) the privilege should not be available—the concern to minimise wrongful conviction must prevail. A significant amount of the criticism of the existence of a marital communications privilege in civil trials was made in jurisdictions where it was available in matrimonial disputes. The Family Law Act 1975 removes the privilege in proceedings in the Family Court. This will be continued. The proposed privilege also will not have effect in custody, guardianship or wardship disputes both inside and outside marriage. This achieves symmetry between the approach of the Family Law Act 1975 and that existing generally with ex-nuptial children, maintaining the priority given to the care of children by the courts.[146]
899. It is considered that the privilege should not extend to former spouses. The basic rationale for the maintenance of the marital communications privilege must be the encouragement of candour and trust within the marital relationship. Once the marriage is over, be it by reason of death or divorce, ipso facto, harm can no longer be done to the marital relationship by disclosure of communications within it.[147]
900. The Issue. In Victoria and South Australia, the discretion to excuse spouses when called by the prosecution extends to parents and children of the accused. In addition, in South Australia, it extends to de facto spouses. The discretions can be used to excuse such persons from giving part of their evidence. This would enable protection to be given to communications passing between theta and the accused. The issue, therefore, is whether to extend a protection that exists in two jurisdictions but is not generally available.
901. Rationale. The public policy arguments supporting non-compel lability of spouses apply in varying degrees to parents, children and couples in de facto marriage relationships. Reference should be made to the discussion of the issues above in the discussion of their compellability.
902. Proposals. A consistent application of policy considerations warrants the extension of a discretionary approach on privilege to parents, children and de facto spouses. In addition, the compellability proposal does not enable a witness to seek exemption as to part of his evidence.[149] Allowing the witness to be excused in respect of evidence of communications will enable more evidence to be received than might otherwise have been the case. It is, therefore, proposed that the power to exempt parents, children and de facto spouses when called by the prosecution should apply to communications passing between them and the accused. Where called by the accused or co-accused no privilege should exist. The concern to minimise the risk of wrongful conviction warrants this course.
903. Rationale. In most jurisdictions there is no privilege which preserves the confidentiality of communications passing between a clergyman and a member of his church. This may reflect a view that there is no public interest in the preservation of such confidences. It may reflect an unwillingness to create an exception to the general approach of ensuring that all relevant evidence is received. A privilege exists in three jurisdictions.[150] Research has not disclosed the reasons for the legislative provisions. The sentiments of Judge Fahy were no doubt shared by many at the time the legislation was enacted:[151]
Sound policy—reason and experience—concedes to religious liberty a rule of evidence that a clergyman shall not disclose on a trial the secrets of a penitent’s confidential confession to him, at least absent the penitent’s consent. Knowledge so acquired in the performance of a spiritual function as indicated in this case is not to be transformed into evidence to be given to the whole world ... The benefit of preserving these confidences inviolate overbalances the possible benefit of permitting litigation to prosper at the expense of ... the spiritual rehabilitation of a penitent. The rules of evidence have always been concerned not only with truth but with the manner of its ascertainment.
904. Policy Issues. Traditionally the words that have passed between religious advisers and their parishioners or devotees, howsoever they be termed, have been thought to have a particular value. The priest, minister, rabbi, monk or person in an analogous position have as one of their most important roles that of both spiritual adviser and temporal confidant. This role is heavily dependent upon the confidence with which those seeking counsel and comfort can rely upon the privacy of their communications. Whether the value of the relationship between the ‘cleric’ and his ‘communicant’ be assessed in purely religious terms or in those of counsellor and confider, there can be little doubt the community places a high priority upon the privacy and inviolacy of the relationship.
905. Another reason for conferring or maintaining a privilege is that many priests/ministers/rabbis/monks are under an unyielding ethical duty not to divulge what is said to them in confidence. For example, for Catholic priests the sacramental confessional seal is inviolable and breach of its confidentiality brings with it automatic excommunication from the Church, which can be lifted only by the Apostolic See.[152] There is clear conflict between this duty and their legal obligation in many States to reveal whatever has been entrusted to them. If possible, it would be well to minimise this conflict, or to provide a mechanism to resolve it if such a conflict is not to harm the administration of justice.
906. Difficulties in Providing a Rule of Privilege. One option is to enact a privilege similar to that existing in three jurisdictions—protecting confessions to clergymen. However, criticism has been voiced by some that such a privilege serves the needs of only those churches or denominations with an institutionalised system of, penitential communication and ignores the needs of others.[153] A response to this is that only those with a ‘sacrament of confession’ are possessed of an apparatus which requires a legal guarantee of confidentiality. It is said by some that it is only when confessions are made for the purpose of obtaining absolution that complete privacy is essential to the existence of the relationship. In addition, in a number of denominations of the Christian faith, the parishioner is under a positive duty to confess his sins at regular intervals to his ‘priest’ and by the canons of his religion his communications are imperatively demanded of him. It might be said that in other denominations where the concept of penitence is more individualist, not always necessitating the presence of a cleric, the same need for confidentiality does not exist. However, it is suggested that the special character possessed of communication to religious advisers is not limited to the sacramental or the penitential. It may be that the nature of the relationship should be looked to rather than the character of the information communicated.[154] This would avoid any religious discrimination.
907. A further difficulty in creating a privilege is the need to describe the religious adviser. In the United States, where the States have generally enacted a form of privilege for clerics and communicants, the appellations given to the religious adviser have varied greatly. Difficult problems, however, still exist in determining which ‘clerics’ occupy the requisite positions in their respective denominations and churches. Many describe those who hear the protected communication as ‘priest’ or ‘clergyman’.[155] Some States use the words ‘minister or priest,[156] while others use only the word ‘clergyman’.[157] A number of the statutes specifically mention ‘rabbis’.[158] Delaware, Florida and Massachusetts specifically confer the privilege upon practitioners of Christian Science and the South Dakota statute includes ‘healing practitioners’. Some enactments confer the privilege upon ‘ordained persons[159] but the precise requirements of ‘ordination’ must remain somewhat in doubt. None of the statutes requires that the clergyman be empowered to pronounce absolution as a qualifying requirement but two[160] do demand that the clergyman be twenty-one. The reason, presumably, is that there are some denominations that have children as ministers who preach regularly at revival meetings.[161] The logistic problems highlighted by the various United States approaches to the definitional formulations of ‘cleric’ are legion. For example, what is to be the attitude toward the Jehovah’s Witnesses, all of whom are accepted by their fellow believers as ‘ministers’? An indication of their feelings in the matter can be gathered from Royston Pike:
Jehovah’s Witnesses constitute a society of ministers ... He has been ‘called’ to the ministry by his fellow believers, and the Witnesses resent very deeply the fact that persons whom they have called to the ministerial office are refused the recognition and denied the privileges that the Anglican parson, the Catholic priest, and the Methodist or Baptist or Congregationalist minister enjoy.[162]
While one may go a certain way by providing some form of a description or definition of ‘cleric’, it appears that definitional problems must remain with the attendant result of proposals that will unfairly discriminate.[163]
908. Need to give a Wider Protection. There is a range of communication between clergy and laity which is of a highly personal character, is entrusted under conditions of thoroughgoing secrecy and privacy and yet is not protected by a privilege. As long as the communications are for the purpose of spiritual advice, healing or comfort, they serve both a traditionally important religious function and a counselling function for those in need of a confidant. To this extent, the role of the cleric may on occasions be analogous to that of the therapist or social worker and, accordingly, should receive appropriate consideration. In this respect, one pastoral counsellor has observed:
In the course of my ministry, I have been sought out by many men, women and youths, both members of the churches in the communities where I serve, and non-members, who in trouble sought the aid, comfort and counsel of a clergyman. In all kinds of pastoral counselling the clergyman seeks information from all sides. His usefulness depends upon his impartiality and therefore he refrains from being judgmental, and seeks to reconcile the parties to each other and to the God of all mankind. To be forced to testify for public record in a court would tend to destroy his impartial position as a reconcilor of person to person and persons to God. Whether or not a State has a law regarding ‘privileged communication’, these people have a right to discuss their problems with an ordained clergyman without fear that the clergyman can or will be forced to reveal for public record that which they have revealed in confidence. The granting of privileged communication to an ordained clergyman in respect to his function as a pastor may make the work of legal counsel more difficult in a given case. However, privileged communication to ordained clergymen is a refuge for people in trouble, acknowledged by all men of good will, many courts and lawyers, and is inherent in the pastoral ministry ordained by God.[164]
There is arguably a public interest in supporting such a relationship. A privilege, however, should not be available in all cases. It is more appropriate to balance the need for the evidence against the need for confidentiality, so allowing the court to consider the circumstances in which the communication was made.
909. Proposal. It is proposed that there should be a judicial discretion to protect confidential communications between a clergyman and a member of his church. This would be available to the clergyman in respect of communications made to him by someone seeking his spiritual advice or pastoral assistance. Such a proposal best recognises the competing issues. The proposal is drafted in general terms and thus avoids the problem of describing the religious adviser. It is available to protect communications and records of them made in circumstances where one of the parties is under an obligation (whether legal, ethical or moral) not to disclose them. In this it goes beyond the relationships in question. It will be seen, however, in the discussion of other relationships in the pages that follow that there is a need for such a discretion to be available to protect confidential relationships generally. The legislation lists matters to be taken into account. Matters to be considered would include the need for the evidence, the damage which would occur to the particular relationship by the enforced disclosure of confidential communications and the deterrent effect upon the formulation of similar relationships by the absence of a privilege. Consideration was given to drafting the clause in terms or competing public interests—as in the State interest privilege. This was not done because:
• while public interests justify the proposal, the disclosure of the evidence does not necessarily have a direct impact on the public interest;
• what is involved is a balancing of advantages and disadvantages in the circumstances of the particular case bearing in mind the public interests that lie behind the discretion.
Few cases[165] have arisen for decision in which religious advisers have been ordered to disclose communications entrusted confidentially to them. Thus the denial of a formal privilege, particularly as it does not exist in most jurisdictions, cannot be seen as a marked change. This approach has the benefit of introducing greater flexibility and allowing the courts to assess the individual merits of each case—for example, the harm to those involved in disclosing the communication, the importance of the evidence, the nature of the proceedings. It recognises both the strictly religious aspect of the cleric’s function as well as his pastoral ministry. It also removes any suggestion of discrimination. It is thought that there should be little damage which could be done to the civil and criminal justice systems by its existence. The need to use the discretion will rarely arise because it would be unusual for the other party in litigation to find out about the communication to the cleric. When it will arise, the discretion provides the trial judge with a procedure to be used when a witness is reluctant to disclose a confidential communication where, at present, a judge must compel him to do so or improvise in some way. The legislation deliberately does not include a definition of the obligation to preserve the confidence. The reference to the obligation in the legislation provides the fact which brings the issue before the court. To define the obligation will only narrow the circumstances in which the court can consider whether to protect the confidence. It is preferable that the court consider the quality and nature of the relationship in the exercise of the power. Because those matters will be considered, it is not necessary to define the nature of the obligation.[166]
910. The Issue. In most jurisdictions there is no privilege available to protect communications between doctors and their patients and information passing between them. Privileges exist in three jurisdictions for civil proceedings only.[168] The issue is whether to create a privilege and, if so, in what form.
911. Three main benefits which would accrue from the creation of a privilege have been identified[169]—the protection of the patient’s privacy, the encouragement of persons to seek treatment,[170] and the promotion of the public interest in effective treatment of patients.[171] The realisation of successful treatment and the public benefits that are connected with the existence of confidentiality between physician and patient tend not to be concentrated upon as much.[172] The arguments tend to focus more upon the theoretical issues of the right to privacy and confidentiality, rather than upon the issue of whether problems are caused by the absence of the privilege or benefits follow upon its implementation. To support a privilege, it is necessary to demonstrate a public interest in preserving confidentiality.[173]
912. Public Interests—Public Health. The community has a clear interest in maintaining high levels of good health. This is arguably as significant a community priority as the bringing of the guilty to ‘justice’ through the court system. It is said by many that the doctor/patient relationship is substantially dependent upon the creation and fostering of trust between the parties involved and that this cannot be achieved without a confidential relationship between doctor and patient. ‘Candour is certainly necessary for the proper exercise of the medical profession’.[174] Altschule, for example, comments that:[175]
At the very heart of effective medical practice is the existence of positive physician-patient relationships ... [and] confidentiality is one of the cornerstones of a positive physician-patient relationship. The patient’s history—which he may be reluctant to reveal if he fears it may not be kept confidential—... is of central importance not only in diagnosis but also in permitting the physician to evaluate the patient’s personality in order to decide on treatment ... The resultant withholding of information, often proves directly injurious to the patient. It also creates barriers to the effective creation of a positive physician-patient relationship.
Similarly Justice Haines in R v Hawke[176] commented:
Everyone recognises that confidentiality is essential to diagnosis and therapy. Indeed, one may go further and say that public health is involved if those requiring assistance refrain from seeking it for fear that it will be disclosed.[177]
It is argued that an absence of privilege poses a threat to public health, because it can deter people seeking medical assistance and can affect the quality of treatment.
• Deterrence. While it is said that the absence of a privilege will deter people from seeking necessary treatment, the argument has been the subject of a number of vigorous attacks. Morgan, for example,[178] has stated:
This [the doctor-patient privilege] seems to assume that every patient visualises a lawsuit involving his physical or mental condition. The ordinary citizen who contemplates consulting a physician not only has no thought of a lawsuit, but he is entirely ignorant of the rules of evidence. He has no idea whether a communication to a physician is or is not privileged. If he thinks at all about the matter, he will have no hesitation about permitting the disclosure of his ailments except in case of a disease which he considers disgraceful. The diseases which a patient would be most reluctant to disclose are the very ones which the physician is obliged to report to public authority. A patient would hesitate longer to consult a physician if he knew that his affliction would surely be made a matter of public record, even if the record is not to be open to public inspection, than if he knew that in the event his condition should become material in a lawsuit, the physician might be required to testify. If the patient is to be credited with knowing the law of privilege, he must be taken to know also that in case his physical or mental condition is relevant in an action, he is subject to being called as a witness. If called, he must under oath give all the relevant information which he could give to his physician.
Because of the nature of the problem, research data relating to patients who have not visited a doctor through fear of his testifying in court is difficult to obtain.[179] It would be surprising, however, if a person in serious need of medical aid would refrain from seeking assistance out of fear that his confidences may be divulged in future litigation. If it is a minor matter, he will not be concerned about confidentiality. It is only in relation to a very restricted number of private matters where a patient would be likely to be concerned about the doctor’s confidentiality.
• Quality of Treatment. As an aspect of the public policy interest in health in the community, concern has been expressed by some that the absence of a doctor-patient privilege has a detrimental effect upon the efficacy of whatever form of treatment is being employed. Were it to be demonstrated that this is so, it would in itself be a matter for concern.
It has not been suggested to the Commission, however, that the quality of health care is adversely affected by the absence of a privilege in most jurisdictions.[180] Wigmore notes that with the exception of venereal disease and criminal abortion, to which might be added the symptoms of various molestations, there is hardly a fact in respect of which the patient himself attempts to preserve secrecy:
Most of one’s ailments are immediately disclosed and discussed. The few that are not openly visible are at least explained to intimates. No statistical reckoning is needed to prove this. These facts are well enough known.[181]
It must be conceded that it is only in a few, relatively confined instances that a patient would have any reason to fear disclosure of the information given by him to his doctor and, in many of these, exceptions to the statutory privilege could be expected to apply. The thoughts of the patient will normally be filled with the woes of his illness and the possibility of his words making their way from the surgery to the courtroom would rarely be a factor to curb the candour of his communications. Accordingly:
the justification in the need for encouraging the frank disclosure of information to the doctor seems to have slight relevancy to the actual play of forces upon the average patient.[182]
Wigmore too argued against a privilege:
Even where the disclosure to the physician is actually confidential, it would nonetheless be made though no privilege existed. People would not be deterred from seeking medical help because of the possibility of disclosure in court. If they would, how did they fare in the generations before the privilege came? Is it noted in medical chronicles that, after the privilege was established in New York, the floodgates of patronage were let open upon the medical profession and long concealed ailments were then for the first time brought forth to receive the blessings of cure? And how is it today in those jurisdictions where no privilege exists does the medical profession in two thirds of the Union enjoy, in a marked way, the afflux of confidence contrasting with the scanty revelations vouchsafed in that other third where no privilege protects? If no difference appears, then this reason for the privilege is weakened; for it is undoubted that the rule of privilege is intended not to subserve the party’s wish for secrecy as an end in itself but merely to provide secrecy as a means of preserving the relation in question whenever without the guarantee of secrecy the patty would probably abstain from fulfilling the requirements of the relation.[183]
It must be remembered that the absence of a privilege does not affect the obligation of a doctor to preserve the confidences of a patient outside the courtroom. Thus if a patient thinks about the confidentiality of the relationship he can assume that it will only be in exceptional circumstances such as in litigation—that the confidences may have to be revealed. So far as public health is concerned, it is difficult to argue that a general privilege is required.
913. Public Interest—Avoiding Unnecessary Hardship. It is important for the acceptability of the trial system, that it not make unduly harsh demands of those affected by it. Forcing doctors to reveal what their patients have told them may on occasions seem so. To date this has been addressed by the courts indirectly—limiting the questions, controlling access to subpoenaed documents, and persuasion.[184] According to the Hippocratic oath still administered to graduating classes of medical students, the physician pledges:
Whatsoever I shall see or hear in the course of my profession as well as outside my profession in my intercourse with men, if it be what should not be published abroad, I will never divulge, holding such things to be holy secrets.[185]
Similarly, under the International Code of Medical Ethics,
A DOCTOR SHALL preserve absolute secrecy on all he knows about his patient because of the confidence entrusted to him.[186]
The following comments appear in the Code of Ethics of the Australian Medical Association:
6.2.6 The greater concern of Government with the welfare of the community has brought doctors into close contact with government departments, hospital boards and many other bodies composed partly or wholly of non-medical persons, with the result that requests are made by medical or lay officials for clinical records or other information concerning patients.6.2.7 Other patties who frequently seek information from a doctor are employers who request reports on the medical condition of absent or sick employees, insurance companies requiring particulars about the past history of proposers for life assurance or deceased policy holders and solicitors engaged in threatened or actual legal proceedings.
6.2.8 In all such cases where medical information is sought, the doctor should make it a rule to refuse to give any information in the absence of the consent of the patient or of the nearest competent relative.
In addition the World Medical Association in 1949 published an ethical principle which contains a stricture of absolute secrecy by the physician. It states:
A doctor owes to his patient absolute secrecy on all which has been confided through him or which he knows because of the confidence entrusted to him.[187]
In an interpretative statement made in 1954, the WMA stated:
Professional secrecy by its very nature must be absolute. It must be observed in all cases. A secret which is shared is no longer a secret. Exceptions to the rule of professional secrecy can be made only in special cases such as reporting the incidence of epidemic or communicable diseases.[188]
The ethical duty is qualified by legislation under which the doctor has a duty to file information with statutory authorities relating, for example, to cases of tuberculosis and other contagious and infectious ills, sexually transmitted diseases and, generally, to births and deaths. In addition, in New South Wales at least, the physician can theoretically be adjudged guilty of the crimes of misprision of felony or of being an accessory after the fact[189] if he fails to report a serious crime to the apposite authorities.[190] Nonetheless, the code of ethics generally applies and a practitioner who breaches it may be censured or even deregistered by his professional association.[191] An action may also be brought for breach of the physician’s duty of confidentiality although such private actions in contract, tort and equity are of very restricted application.[192]
914. The absence of a privilege creates a situation in which the doctor’s code of ethics and his legal obligations as a witness may come into conflict. Many doctors are of the view that they should insist on their ethical obligation prevailing. For example, Dr EH Molesworth, a member of the New South Wales Medical Board, impressed upon medical graduates the inviolability which should attach to confidences given to them by their patients, saying:
There is a very strong body of medical opinion that a medical attendant should refuse, even in the face of a command from a Judge, to disclose information given him in confidence by a patient ...[193]
A policy of disobedience to the law, however, is ‘hardly the best method of meeting the position’.[194] The Commission has been advised that an alternative, and unsatisfactory, course adopted by some doctors is to keep two sets of records—one for treatment and one for use in evidence. If that is so, then the absence of any privilege is counter productive from the point of view of the trial. A very real conflict between the doctor’s ethical obligations and the demands of the law is a serious problem. A satisfactory solution is not to be found by saying that the one must always prevail over the other. Flexibility is needed.
915. A Privilege? The foregoing discussion suggests a need for a power to excuse medical witnesses in special cases. It does not warrant a blanket privilege, or a primary rule of privilege with exceptions. It should be noted that privileges have been created in a number of common law countries particularly in the States of the United States of America.[195] Taking the latter privileges, however, the exceptions are such that the protection is very limited. It is commonly not available, for example, where the condition of a patient is an issue in the proceedings.[196] Reference has been made to the flaws in the statutory privileges that exist in three jurisdictions (Victoria, Tasmania and the Northern Territory) in particular their exclusion of important evidence with the result that courts are misled.[197]
916. In recommending against a rule of privilege, a position is taken contrary to that in relation to the client’s legal privilege. It is often put that if there should be a privilege for the lawyer/client relationship then there should be one for the doctor/patient relationship.[198] Some parallels can be found. Each can be said to be aided by confidentiality. A privilege in each case would protect the privacy of the layman and could encourage the use of the professional services and enhance their quality. There are, however, significant differences:
• The lawyer’s office has been described as the ante-room of the courtroom. Whenever anyone consults a lawyer, litigation is always a possibility. If there were no privilege, it would affect the way the lawyer conducted himself. He would probably have to advise the client of the lack of privilege. At present confidentiality can be and is assumed. It would be extremely difficult if not impossible to provide satisfactory legal advice and assistance if the lawyer could be compelled to give evidence about matters presently privileged.[199] Unlike the doctor, he is a potential witness in respect of all matters in which he acts for a client.
• A client’s legal privilege is less likely to prevent direct evidence being presented to the court. In much litigation, the information possessed by the lawyer is secondhand—what the client and others tell him. It is not necessary to question the lawyer about such matters to gain the necessary evidence—there will be others available.
917. Proposal. There is a need for a limited form of privilege relating to confidential communications between doctor and patient. While confidentiality and trust are not generally crucial to the formation or continuance of doctor/patient relationships, there will be occasions when they are. Every good doctor forms a relationship of trust and confidence with his patient and, to lesser and greater degrees, this relationship assists in the treatment of both somatic and psychic ills. There are occasions when the role of the doctor is not easily to be distinguished from that of the psychotherapist. Under these conditions, while confidentiality may not always be crucial to the treatment, disclosure in court may sometimes terminate the relationship. In this circumstance the public interest in the maintenance of health dictates that special consideration should be given to the maintenance of the doctor-patient relationship. In some cases, the public interest in the protection of the confidentiality of such a relationship may be more important than the interest of the litigation system in extracting all relevant evidence from the witness. Flexibility to cover such circumstances is necessary. Further, there will be occasions when the doctor is placed in a position where he must either disobey his code of ethics or disobey the law. At present there is no procedure to deal with this situation. The judge must improvise, or exercise his powers under the law of contempt—an unsatisfactory position.
918. The provision of a discretionary privilege would allow the competing public interests to be taken into account when the court is assessing whether evidence ought in the circumstances to be compelled from witnesses, thus allowing the courts to be sensitive to the individual needs of witnesses and of relationships. The draft legislation takes this approach.[200] It gives a discretion to the court to direct that the evidence not be given. It will apply to communications and records made in circumstances where one of the parties is under a legal, ethical or moral obligation not to disclose it. The clause lists matters to be taken into account in deciding whether the evidence should be excluded. The discretion operates at the time of admission rather than, for example, at the time of sentencing for contempt, and thereby directly addresses the issues and assists in greater sensitivity and flexibility for the legal system. The change to the law should make only a limited difference to the amount of evidence currently brought before the courts.
919. The Issue. Psychotherapy may be described as the treatment of mental, emotional or behavioural disorders by verbal or other communication between patient and therapist.[201] In most jurisdictions[202] there is no privilege protecting the confidentiality of the relationship between psychotherapist and patient. The relationship is protected to a limited extent in three jurisdictions where there is a privilege protecting doctor/patient relationships. That privilege is available only where the therapist is a ‘physician or surgeon’ and only in civil proceedings. It is not available where ‘sanity’ is in issue. The issue is whether to create a privilege and, if so, in what form.
920. It has been argued that the revelations to the therapist are of limited value. Fisher makes the point that:
there should be less hesitancy in creating a privilege protecting a deserving relationship if the nature of the evidence to be gained from forcing disclosure of the confidence is of little probative weight.[203]
Many attitudes and opinions expressed in the course of some forms of psychotherapy are far-removed from everyday functioning:
Their production is necessary in treating the illness but devastating if revealed to ordinary scrutiny. Although absolutely necessary in treatment, data from free-association, or fantasies, or memories, are not reliable for use in court as they mostly represent the way the person experienced an event, and not how the event occurred. They are not ‘facts’. Psychic reality is not the same thing as actual reality.[204]
The value of many of the disclosures to therapists may be very difficult for a judge or jury to assess. There is also the possibility of manipulation of the patient by the therapist resulting from the formation of a strong emotional bond between patient and psychotherapist. The evidence of the psychotherapist, however, will often be critical evidence—for example, as to the sanity of the accused or the mental instability of a parent or child. While the evidence will have weakness it is not alone in this and the public interest in receiving all relevant evidence must still be acknowledged. It is necessary to identify the public interests that would support the creation of a privilege.
921. Public Interests Supporting a Privilege. It is conventionally asserted that the psychotherapist patient relationship is one in which confidentiality is crucial and in which the utmost trust and confidence must be held by the patient.[205] It is said that without complete confidentiality therapy is unlikely to produce the results that society would want. To this extent, it is argued that the relationship may be distinguished from the physician-patient one, since confidentiality is of the very essence of the relationship with the psychotherapist, whereas with the physician it is merely one of its aspects.[206] Under these circumstances, the need of psychotherapists and their patients for confidentiality is more urgent than that of doctors and their patients. A variety of public policy reasons, it is argued support a privilege—the community’s interest in the treatment of mental illness, the minimisation of crime, and the avoiding of undue hardship in the application of the law.
922. The Public Interest in Treatment of Mental Illness. Estimates of the incidence of mental illness differ greatly. It can be said, however, that the problem appears to be of vast dimensions and is apparently increasing. It is argued by some, though, that there is no recognisable change in the incidence of mental illness but simply that it is now being acknowledged and treated more openly and effectively than in the past.[207] Whatever may be the explanation, it is apparent that the demand for psychotherapeutic treatment has increased dramatically in recent decades. Goldhamer and Marshall have estimated that the probability that a person who survives to the age of 45 will be stricken ‘by a serious mental illness’ is about one in 20 and about one in 10 by the age of 65.[208] As Fisher comments, however, these figures leave much unstated. The use of the counselling skills of psychotherapists, often by those whom the profession would be content to describe as ‘normal’, is becoming increasingly significant. Many of the more publicised studies do not measure some of the less debilitating neuroses which are increasingly to be found.[209] Fisher draws the conclusions well:
[I]t is most important that the insidious omnipresence of this leviathan which we call mental illness is recognised. Given the disruptive effect of mental illness on the social order, not to mention the expense both in dollars and in the loss of a productive portion of our population, and given the recent development, concededly in its foetal stages, of various techniques to meet this problem, it remains to decide whether it is important for the law to make certain adjustments in the way of concessions to facilitate and encourage this development.[210]
It has been claimed that the absence of a privilege has deleterious effects upon public health because it discourages potential patients from going to psychotherapists and it affects the quality of the therapy and the success of treatment. The first of these issues is considered next.
923. Lack of Privilege and Deterrence of Patients. The belief that potential patients are deterred from receiving treatment because of the non-existence of confidentiality has been a strong force in the enactment of privileges in the United States.[211] Deterrence is always a difficult matter to prove empirically and few efforts have been made to assemble data on the incidence of deterrence of patients by reason of the lack of a privilege.[212] Both Ladd[213] and Chafee[214] a have, however, been firm in their declarations that the creation of a privilege in certain States has made little difference to the numbers of those treated in those States.[215] A factor may be the preparedness of mental health professionals to face contempt proceedings rather than betray confidences. To this extent, in the minds of many, there may already be a de facto privilege. Empirical research, however, suggests that people are unaware of the existence or non-existence of a privilege.
• The Shuman Weiner Study. The research[216] in part sought to investigate the assertion that the absence of a privilege deters or delays therapy and impairs the quality of the therapy. Information was obtained for the years preceding and following passage of a privilege statute in Texas. Medical insurance claims for psychiatric treatment were examined but it was found that there was no increase in the number of claims after the privilege was introduced. It was also found, however, that there was a very high level of ignorance of the existence of a privilege. The general ignorance of the law would suggest that the lack of a privilege would not have a significant deterrent effect. However, 54% of the patient sample said confidentiality was a concern and confidentiality was a ‘very important consideration’ for 20 per cent of the patients. 28% of patients asked therapists about confidentiality. In addition, eight per cent of those interviewed declared that they would have sought treatment earlier had they realised that there was a law prohibiting psychiatrists from disclosing what patients tell them.
• The Wise Study.[217] Questionnaires were completed by 179 of the psychologists sampled and 1093 of the psychiatrists approached. A quarter of the therapists reported losing patients because of fear of a breach of confidentiality and 23 per cent of the therapists said that their patients refused further treatment, eleven per cent saying that the patient returned to treatment or was successfully referred to someone else. The Wise study does, therefore, provide some justification for those asserting the deterrent effect of a lack of confidentiality. It did not, however, survey the patients and the breach of confidentiality considered was not limited to the court room situation.
It has been suggested that even if deterrence of some patients is established, this in itself may not be such a bad phenomenon. Goldstein and Katz[218] have shown that at least some patients with harmful propensitites make disclosures in the form of ‘cries for help’, hoping that their disclosures will spur the therapist to take active, authoritarian measures, thereby curbing their misconduct and taking charge of their lives. In a context where the privilege did exist such patients might believe their disclosures futile and resort instead to criminal gestures to gain attention. Thus:
even if deterrence is a significant factor, qualifying the privilege might nonetheless effect a justifiable trade-off by attracting some patients with dangerous tendencies at the cost of deterring other patients likely to be less dangerous. Numbers are a matter of speculation at this point, but even if the latter group were much larger than the former, such a trade-off might still serve the greater public good.[219]
It seems likely that the absence of a privilege will deter some patients from seeking treatment. It is a fair assumption that where the nature of the treatment contemplated concerns acts which are popularly realised to be unlawful, the patient will give some thought to the confidentiality of the information that he communicates to the psychotherapist.[220] The situations in which a psychotherapist gives treatment and could be asked to testify as to what has been communicated to him are legion. Prosecutions for incest, fetishism, pederasty and homosexuality could all theoretically use information given to a therapist in the course of treatment. It is claimed by some that this mere fact results in under-utilisation of such services.[221] Those suffering from a compulsion to steal or to defraud, and those with a history of violent activities or drug abuse, are likely to consider the possibility of their confessions to a psychiatrist or psychologist in the course of treatment being used against them in litigation. Common sense suggests that such considerations must enter into the decision of whether or not to seek treatment. Further, if the patient asks, the psychotherapist must inform him of the legal situation and at this stage it is likely that some patients are lost. Many would argue that this would be an adverse development.
924. Effect of Absence of Privilege Upon Therapy. An important aspect of psychotherapy has been the use of psychoanalysis which involves full disclosure by the patient of ideas, impulses, conflicts and emotions. For this to be possible, repression of memories must be overcome.[222] In classical theory, the success of psychotherapy is inversely proportional to the degree of ‘resistance’ encountered[223] and repression remaining present in the patient.[224]
925. It is asserted, therefore, that given the nature of psychotherapy, absolute confidence must be part of the psychotherapist-client relationship for the client successfully to reveal his inner thoughts and feelings, thereby ‘lifting his repressions’. As the process is in good part one of breaking down obstructions to the free-flowing of ideas both conscious and unconscious, the awareness in the patient of the possibility that his words might be repeated in court could well affect the success of the relationship:
Unless the patient is assured that the therapist has no authority over him-for example, through disclosure of their communications in court—the built-in resistance to full disclosure cannot be overcome.[225] The patient must trust the therapist; this can occur only if the patient alone holds the key to disclosure of matters revealed in therapy.[226]
926. The need, it is said, goes deeper. Many have followed Guttmacher and Weihofen[227] in arguing that the sensitivity and difficulties peculiarly present within the relationship make it one especially susceptible of disturbance.[228] They assert that the danger is that the psychotherapist, instead of being almost a catalyst in the drawing out of the patient’s inner thoughts and fears, may come to be seen as a figure of authority if it is known that he is able to disclose what he hears. In such a situation, repression will not be broken down.
927. It is an unfortunate fact that not a great deal is required to dislocate a relationship as sensitive as that between psychotherapist and patient. Already many pressures are brought to bear upon it and there are many reasons for a patient to resist full disclosure irrespective of confidentiality—it is a common misapprehension that mental illness is more serious or should be viewed with greater circumspection than physical illness;[229] a former ‘mental patient’ suffers from more severe social opprobrium than a person who has suffered a physical malady;[230] many still have an ‘irrational fear of the mentally ill;[231] the experience in itself is sufficiently unnerving to cause the patient frequently to lose confidence and self-esteem. There are, therefore, a number of factors militating toward stifled communication between patient and therapist. Further disincentives can have a serious effect upon the quality of the therapy.
928. Shuman and Weiner showed a direct relationship between the existence of privilege and the degree of disclosure of personal details. When the lay group was asked what they would reveal to a psychiatrist or a psychologist, their responses were the same when no comment was made about privilege as when privilege was specified. More importantly, though, when a no privilege condition was specified, the overall non-disclosure rate for all categories of threatening material, nearly doubled.[232] A survey was also conducted by the Yale Law Journal.[233] Again marked uncertainty about the existence of a privilege was most evident but one of the important results of the survey was that:
for every two laymen who claim that they would not be affected by the lack of privilege for communications with a psychiatrist, psychologist, marriage counsellor, or counsellor, or social worker, nearly five claim that they would be less likely to make full disclosure.[234]
The survey, however, does not confront the question of whether people contemplating psychotherapy give thought to the possibility of disclosure of their communications in the courtroom and whether this deters them from seeking treatment. The Wise study[235] found that 79 per cent of the therapists interviewed felt that patients would feel inhibited if they knew that their communications were not governed by strict confidentiality. In that study, the results also showed that the disclosure of violent tendencies was affected by fear of breach of confidentiality and that the fear did on a number of occasions result in the loss of patients.
929. It is important, however, not to over emphasise the importance of confidentiality. Confidentiality both never completely exists and exists only to a very limited extent in many kinds of therapy.[236] Psychoanalysis is not the most common form of psychotherapy.[237] Most psychotherapy does not require full disclosure of all aspects of the patient’s life. Some forms of psychotherapy demand that the therapist and patient deal primarily with the disturbing symptoms and aspects incidental thereto, thus allowing other aspects of the patient’s life to escape prolonged consideration.[238] It is true to say also that the confidentiality in other forms of therapy, such as those involving couples or groups, is limited, but at the same time it should be admitted that this is at the choice of the patient who, under those circumstances, accepts the form of treatment in full knowledge and understanding that what he says will be heard by a number of other people. Thus, while it is true to say that in some contexts, at the patient’s election, confidentiality is circumscribed, there remain many forms of psychotherapy and counselling where confidentiality is important to the treatment.[239]
930. Public Interest in the Minimisation of Crime. Arguably, one of the functions of the psychotherapist is to ‘help’ or ‘treat’ his patients in relation to any ‘socially unacceptable’ behaviour that they may be displaying. Such a role would often involve counselling and ‘working through’ tendencies to commit criminal activities or to behave in ways not sanctioned by the community. Such a role, if successful, helps to reduce criminal activity. Such a role could well be seriously affected by forcing psychotherapists to be post-crime informers about the intentions and confidences given during therapy. As Fisher notes:
A therapist working with juvenile delinquents, for example, would constantly be in court and, to say the least, this would render him ineffective in his therapeutic functions.[240]
931. Public Interest—Avoiding Unnecessary Hardship. As in the area of doctor-patient relations, so here there is the potential for a clash between the professional ethical obligations of the therapist and his obligations as a witness. As noted above, the law does not provide any direct machinery to resolve this conflict when it arises. To require a psychotherapist to give evidence unnecessarily can adversely affect the acceptability of the trial system.
932. Overview and Proposal. A case can be made out that the absence of a privilege attaching to communications between psychotherapists and their patients will deter a percentage of those in need of treatment and that the quality of much therapy will decrease as patient confidence in confidentiality of communication is weakened.[241] To require the therapist to give evidence is likely to terminate the relationship and treatment. It can be said that the absence of protection can adversely affect the maintenance of mental health in the community. While it is not possible to quantify the extent of that detriment, it cannot be to the ultimate advantage of society to be unable to excuse psychotherapists from giving evidence, when the presentation of the evidence may have serious ramifications for those contemplating or actually undergoing treatment. The continuation of treatment to successful completion will often also be in the community interest where it will prevent criminal and other anti-social behaviour. Another factor is the conflict produced between the psychotherapist’s ethical duties and those imposed upon him by law.
933. The case is much stronger than that for the physician/patient relationship. The United States Supreme Court recommended a psychotherapist-patient privilege, the Advisory Committee commenting that:
the doubts attendant upon the general physician-patient privilege are not present when the relationship is that of psychotherapist and patient ... [T]here is wide agreement that confidentiality is a sine qua non for successful psychiatric treatment ... Psychiatrists not only explore the very depths of their patients’ conscious, but their unconscious feelings and attitudes as well. Therapeutic effectiveness necessitates going beyond a patient’s awareness and, in order to do this, it must be possible to communicate freely. A threat to secrecy blocks successful treatment.[242]
934. It is not as if the psychotherapist will be a potential witness in all cases, however—as compared with, for example, the party’s lawyer. There is, therefore, less need for a clearly and precisely formulated rule so far as the conduct of litigation is concerned. Further, it is doubtful whether there is any value in a general privilege in that in most cases the evidence that the psychotherapist will be asked to give will be critical evidence about the mental state of the patient. Some form of exception would be needed for such a contingency.[243] What is proposed, therefore, is the guided discretion already discussed.[244]
935. The Issue. There is authority that social workers may be excused from giving evidence in limited circumstances. This is based upon a public interest in not revealing the identity of an informant.[246] The issue is whether to go further.
936. Public Interest in Confidence. The social work profession is responsible for work highly valued by the community. This includes direct counselling of individual, groups and families;[247] community development; welfare administration; policy planning; teaching and training. Social workers have expertise in many different areas—family and other relationships, personality assessment, cultural and ethnic differences, social deviancy, social systems and resources available to assist client problems. The function which trained social workers fulfil is one which is wide in its application and crucial for significant segments of the population, particularly the disabled and the disadvantaged. Inherent in the relationship between social worker and client is the concept of trust. But the varying nature of relationships between social workers and their clients means that the degree of trust required and the likely detrimental effect of betrayal of that trust will vary considerably. In many situations, however, a social worker cannot continue his or her assistance unless the client can rely implicitly upon the social worker preserving confidences and the disclosure of confidential communications may also discourage persons from seeking help in the future.
937. Public Interest in Avoiding Unnecessary Hardship. The Social Work Code of Professional Ethics refers to the protection of clients’ information:
Confidentiality and Privacy. The social worker should respect the privacy of clients and hold in confidence information obtained in the course of professional service.\The social worker should only share relevant confidences revealed by clients without their consent, for compelling professional reasons.
The social worker should inform clients fully about their limits of confidentiality in a given situation, and the purposes for which information is obtained and how it may be used.
The social worker should afford clients reasonable access to official social work records concerning them.
When providing clients with access to records, the social worker should take due care to protect the confidences of others contained in those records.
The social worker should obtain informed consent of clients before taping, recording or permitting third party observation of their activities.[248]
The statement contains a number of qualifications and assumes that confidentiality will not always be possible. Nonetheless, there will be occasions when the legal and ethical obligations of a social worker will conflict.
938. Many social workers feel that their Code of Ethics dictates that they maintain the secrecy of communications entrusted to them at all costs. They feel that the ability of the courts as it is occasionally exercised to compel disclosure of confidences places them in a difficult ethical position. Failure to comply with a court order constitutes contempt of court. Lying to the court or distortion of the actual communications between social worker and client constitutes perjury. Betraying of the confidence of the client constitutes what many have identified as an unfair and unethical breach of professional ethics. It has been argued by social workers that a professional group of high standing in the community should not be subjected to such an ethical dilemma unless there is no alternative. Information received by the Commission indicates as well that a considerable percentage of social workers and welfare workers are in many circumstances not prepared to co-operate with a court order that they disclose confidential information.
939. Proposal-Discretionary Approach? Assuming a category of privilege is appropriate, there is a problem of definition. The Australian Association of Social Workers recognises some 13 institutions with social work training courses.[249] However, many social workers who have graduated from the institutions recognised by the AASW are not members of the Association. Many courses exist in sociology and social theory, graduates of which call themselves social workers. The variety of different training programmes and training institutions makes the identification of social workers on the basis of qualifications very difficult.
940. Assuming a category could be identified, however, a privilege would not be suitable because social workers engage in a multiplicity of different tasks and functions. Some of these have at their heart the need for confidentiality[250] and others, if they have any such a requirement, have it as only a very peripheral matter. In view of the fact that in a number of contexts there is not by any means an overwhelming need for an evidentiary privilege to be accorded to the communications between the social worker and client, it is not proposed to recommend such a privilege. It must be acknowledged, however, that in many other situations the relationship between social worker and client is one that demands, in the public interest, that every possible protection be given to the privacy of communications between them.
941. The guided discretion is proposed.[251] Under such an approach, each case would be considered on its merits and the need for the maintenance of confidentiality between social worker and client assessed individually. At present, it is not intended to alter the situation under the Family Law Act 1975. The intention is to develop rules of general application and then to consider the terms of specific legislation in other areas.
942. Definition. In a submission to the Commission, the Australian Medical Association has argued for the creation of a privilege to preserve the confidentiality of ‘peer review’ processes. The term ‘peer review’ has been used to describe a variety of procedures used to assure the quality and appropriateness of health care services. Different terms can be used[253]
• Peer Review. ‘In broad terms, peer review means the evaluation of the quality of the performance of individuals or groups by peers or colleagues using implicit or explicit criteria’.
• Utilisation Review. This term ‘means the review and assessment of the use of resources in order to ensure that care is delivered in the most economical way, consistent with quality, and that available resources are allocated in the most efficient manner’.
• Clinical Review. This is a formal process which compares facts or consensus opinion in clinical practice against the process and outcome of care. Clinical review suggests that reviewing oneself is only valid in terms of patient care, which the term ‘clinical’ implies. ‘Clinical review’ is often used interchangeably with ‘peer review’.
Peer review involves the evaluation of patient care among peer groups whether ‘doctors, nurses, physiotherapists, occupational therapists, social workers, dieticians or pharmacists’. Examples include—tissue audits, case conferences, death and complications meetings. It can involve ‘utilisation review’ as both, in a particular case, may involve consideration of the appropriate use of resources—for example, ‘admission criteria, length of stay and the use of diagnostic services and blood products’.
943. Development of Review Procedures. Medical care review has been carried out in Australia for some time on an informal basis. It was concerned primarily with treatment of particular patients.[254] In 1976, the Australian Government raised the need for quality control relating both to the quality of and justification for services provided.[255] The issue was studied further by the government and the medical profession and in 1978 the AMA approved the use of formal methods for the evaluation of medical care under the general term of ‘peer review’.[256] It was resolved that the introduction of formal peer review mechanisms (including criteria auditing[257]) be the responsibility of individual hospitals. It was not intended to use peer review to identify abuses of the health insurance system. It was intended to cover the quality of care and utilisation of resources.[258] A Peer Review Resource Centre was set up.[259] The Centre has developed strategies to foster the development of peer review. Surveys have been conducted. In May 1982, 61 public hospitals were surveyed. Twenty-eight (46 per cent) reported no peer review; 33 (54 per cent) reported some level of peer review activity.[260] The major obstacles so far identified include a resistance to the concept by medical staff and lack of resources.
944. The Issue. The AMA has identified concern that a doctor who enters into a peer review programme runs the risk of being exposed to legal action on the basis of information supplied by him.[261] Other professionals, involved in health care presumably would also face such a risk. The argument is put, however, that there is need for confidentiality if the peer review programme is to be developed and is to work effectively. There is no specific protection given by law.[262] It may be possible in a particular case to invoke the public interest concepts developed in Sankey v Whitlam and D v NSPCC.[263] The legislation relating to medical privilege would not apply. The issue, therefore, is whether a privilege should be created and, if so, in what form.
945. Public Interest—Confidentiality. There is a strong case to support the existence of a public interest in fostering peer review of medical and hospital services—both as to quality of services and the utilisation of resources. The provision of health services involves very large sums of public money and the use of public resources on a large scale. It is in the public interest, therefore, to optimise both the quality of services and resource utilisation. The public interest in the general health of the community also warrants such objectives.
946. The difficult issue to assess is the extent to which confidentiality is necessary for peer review to function effectively. The programme has encountered resistance. But the precise causes of this are not clear. Much may depend on the type of review. Some types involve little risk of individual criticism or litigation.[264] Others may do so. In such cases it would not be surprising if an individual was unwilling to submit himself to a critical appraisal by his peers. This, however, need not be caused by his concern that what he might say could be used in legal proceedings but rather by the very natural reluctance to participate in a procedure that could expose him to criticism and possibly damage him professionally. Nonetheless, it is not possible to exclude altogether the detrimental effect of a lack of confidentiality or uncertainty about its existence.
947. Proposal. In these circumstances, it is difficult to justify a privilege to protect generally the confidentiality of all peer review. There is also a practical difficulty in providing a specific privilege. It would be necessary to define the type of group or operation whose discussions and proceedings where to be privileged.[265] The most protection that can be justified at present is a discretionary protection. It is proposed that the discretion for the protection of confidential communications be relied upon.[266]
948. The Issues of Policy. There is no privilege protecting the confidentiality of a journalist’s sources. At present, if a journalist is required to disclose his sources in court and refuses, the question will be dealt with ultimately by using the court’s contempt power.[268] The court may fine an unco-operative witness guilty of contempt but, if it is of the opinion that the refusal of the witness to testify is not a serious offence, it may discharge him with a penalty as slight as being sentenced to the rising of the court. Situations in which the law finds members of the public guilty of a criminal offence and then chooses in its discretion not to exercise its punitive powers tend to bring the law into disrepute. The privilege sought by journalists relates to their sources. As no privilege exists, the issue for consideration is whether to create a newsperson-informant privilege. Consideration must be given to the question of what public interests support such a privilege.
949. A Public Interest in Confidentiality. It is frequently the ‘people’s right to be informed’ that advocates of newsperson’s privilege legislation have championed. They have claimed, for example, that:
Professional news organisations cannot possibly provide the public with accurate factual reports and perceptive interpretative analysis if the reporter—or his notes, films or audio recordings—can be subpoenaed by a government agency.[269]
It is undeniable that the role of the press is a crucial one within our community. It acts as a watchdog on the executive, the judiciary and the bureaucracy as well as on private enterprise. Without its free functioning, Watergate scandals might well not come to light and new ideas and criticisms would be more readily suppressed. As Justice Douglas notes:[270]
Government has an interest in law and order; and history shows that the trend of rulers-the bureaucracy and the police—is to suppress the radical and his ideas and to arrest him rather than the hostile audience.
Free speech invites dispute.[271] A free press plays a central role in providing a vehicle for free expression of personal opinion and as a vocal defender of free speech. It is argued that the refusal of a privilege arrogates to the government and to powerful organisations greater scope for malfeasance.[272] It is argued that so long as a privilege protecting disclosure of a source exists, those in important positions can with a reasonable degree of immunity give information to the media about the iniquities and corruption of the organisation responsible for them. Supporters of a newsperson-informant privilege frequently draw attention to the role of reporters and their informants in uncovering political scandals,[273] abuses of governmental[274] and multi-national corporate power and even the revelation of the attitudes and practices of subversive organisations.[275]
950. The question must be asked, however, whether the absence of a privilege would be likely to have a significant effect upon the performance of the role of the press. For example, is it likely that public debate is at present significantly inhibited and that abuses of government are notably left exposed in the absence of the privilege? How important is it to preserve. the confidentiality of the information?
• The Significance of Confidentiality. The newsperson, and most particularly the investigative journalist, uses information obtained in confidence in the process of assembling data for media stories. The extent to which informants are used depends, of course, on the particular kind of assignment upon which they are working. The Blasi study points out that the average newsperson relies on confidential sources for between 22 and 34 per cent of his stories.[276] Sterling Noel, Managing Editor of the Baltimore News American comments:
Confidential sources for news sources are among the most widely used by all experienced newsmen, and particularly those covering politics and government agencies.[277]
Gordon Pates, Managing Editor of the San Francisco Chronicle echoes his colleague:
An absolutely staggering number of news stories, political and non-political, arise from information received in confidence. Certainly for every story which results from a news conference or formal press handout, there is ‘another one that arises from the digging of a reporter after he has first been confidentially informed that there is something to dig for.[278]
The impact of the absence of a privilege, however, whether as to the information obtained or the identity of the informant, is difficult to assess. The absence of a privilege, and even for that matter enforcement of contempt proceedings against newspeople, need not discourage or prevent the provision of secret information for use by newspeople. The relationship between a newsperson and informant would necessarily, however, have to be less intimate and conducted through less personal channels. If an informant has information which he believes it is vital for him to pass on, he can do so in such a way that his identity is not revealed. Arguments which declare that the flow of confidential information would cease, were it to be absolutely clear that no privilege exists and that no promise by a journalist of confidentiality could be relied upon, are of very dubious worth. The problem with the informant concealing his identity is that a newsperson would have difficulty in substantiating the information given to him by an unidentifiable source. Thus, it may be said that the absence of a privilege might affect the quality of the information that a journalist is able to assemble.
• Deterrent Effect of Lack of Privilege. It is argued that the absence of a privilege and, particularly, the publicity that a privilege does not exist has a deterrent effect upon those wishing to give information to the press. It is further alleged that this has an adverse effect upon the free flow of information and upon the ability of the press to expose corruption, negligence and malfeasance in government and multi-national corporations. In general, it is said, that there is an inhibiting effect upon the capacity of newspersons to complete the professional tasks assigned to them by the community.[279]
Guest and Stanzler comment that they cannot measure the effect upon informants of the absence of a privilege. Perhaps more informants would reveal more matters to more newspersons if they knew that the newspersons were totally unlikely to reveal their identity. This is, however, only a matter of hypothesis. Were lack of confidentiality about the identity of the informant to be an inescapable result of the relationship between newsperson and informant, then and only then would there be a significant deterrent effect. However, this is not so. It is by no means a difficult process for the source to keep secret his identity from the newsperson to whom he gives information. Because of this, the deterrent effect of the absence of a privilege cannot be said to be substantial.[280]
951. Notwithstanding these qualifications, the reality remains that confidential sources are of importance and there is a public interest in protecting them if only to help ensure the information is reliable. It is difficult, however, to justify protection of the information. It is the identity of the source that is important.
952. Avoidance of Unnecessary Hardship. Many journalist associations have ethical mandates which compel confidentiality.[281] The Code of Ethics of the Australian Journalists’ Association provides that each member:
shall in all circumstances[282] respect all confidences received by him in the course of his calling.[283]
This provision and the absence of a privilege or other mechanism places the newsperson in an invidious position when confronted with the choice of obeying the mandates of the courts or the ethical dictates of his or her profession. The law is seen to require a breach of the code of ethics whatever the need for the evidence may be. There is also evidence that a considerable number of journalists would be prepared to go to jail in order to protect important source relationships which they believed ought to have been privileged but under existing law are not. Thus the contempt sanction possessed by the court will on occasions be seen as ineffective as well as harsh. In the Blasi study, 975 journalists were asked whether they would be prepared to go to jail if they were advised by their lawyer that the sentence would probably be thirty days but might be as much as six months. Of that number, 667 (68.4 per cent) said ‘Yes’, 140 (14.4 per cent) said ‘No’ and 168 (17.2 per cent) did not answer the question. Among the 364 respondents who had been entrusted with confidential information from dissident sources, the willingness to go to jail to protect a confidence was even greater: 297 (81.6 percent) said ‘Yes’, 40 (17.0 per cent) said ‘No’ and 27 (7.4 per cent) did not answer the question. Admittedly, these figures should be somewhat discounted; it is much easier to talk about going to jail than it is to face up to the reality of incarceration. In interviews conducted by Blasi, a number of reporters admitted that their promises to sources to go to jail if necessary to protect confidences were premised on the. firm belief that it would never come to pass and that, even if it did, the sentence would be minimal.[284] The fact remains, however, that a considerable number of journalists have declared themselves and, in fact, shown themselves prepared to endure imprisonment rather than breach confidences entrusted to them.[285] Under such circumstances, an unhealthy situation exists. Where a profession is prepared to disobey the mandates of the legal system and to suffer the consequences, rather than breach its own ethical rulings, at the least it must be said that law has not satisfactorily addressed the problem.
953. Options. If a privilege is created it would not be necessary to go beyond protecting the identity of the source of the information. The public interests identified do not require more than this. As to proposals, four options require consideration—an absolute privilege, a privilege referee, rules for classes of proceedings and a discretion to excuse:
• Absolute Privilege? It is considered that some protection of the identity of the source of information is merited. To deny the protection may reduce the free flow of information. What appears to be more significant, however, is that it will render it more difficult for the newsperson to gauge the reliability of the information provided to him because he does not know the identity of his source. This in its turn would have an effect upon the quality of news information. However, the presence across the board of a privilege would carry with it very serious dangers of misuse. Information could not easily be tested for reliability and accuracy either by the newspaper or the courts. The existence of an ‘absolute’ privilege could bring with it grave dangers of mis-reporting of events for pecuniary or sensationalist gain and by informants realising that their identities would remain safe by statute regardless of the bona fides of their communications or the illegal means that may have been used to obtain the information. ‘Leakers’ of information could, for political or personal ends, ‘leak’ information of a baseless and scurrilous character with immunity from fear of exposure.
In any event, many experienced reporters, are deeply suspicious of information entrusted to them confidentially. They say, for example, that sources are more willing to prevaricate in off-the-record or not-for-attribution statements because their words will not be exposed by the news media to those who know differently. Of themselves, therefore, the statements given confidentially may not be worthy of being given a privilege. However, the disdain sometimes expressed by newspersons for confidential-source relationships of standing does not carry over to first-time sources, who are generally less experienced and are often said to be less manipulative.[286]
Finally, there will be cases where the evidence is of such importance that it should be revealed. An absolute privilege is not appropriate.
• Privilege Referee. As pointed out by the Law Reform Commission of Western Australia[287] theoretically, a qualified privilege could take a number of forms, including one where a journalist could be required to disclose his informant’s identity to a ‘privilege referee’ as a condition of being excused from disclosing it in open court.[288]
The effect of such a regime would be little more than to verify that information was given in a confidential context. Its major benefit would be that it would go some way towards precluding wholly fictitious stories by journalists claiming confidential sources. It would not, however, enable the informant to be examined before the tribunal of fact to ascertain either the truth of his alleged information or even the truth of the information as it appeared to the journalist. It might also be doubted whether the referee would always be in a satisfactory position to form an opinion about whether the information was really given to the newsperson without being able to summon before him and examine the informant. Further, it is difficult for the referee to judge whether in the case a claim of privilege should be upheld. He will not know enough about the litigation. In the light of these problems and limitations, such a qualified privilege is not recommended.[289]
• Classes of Proceedings. A number of the States in the United States which have enacted a journalist’s privilege have adopted the approach of protecting newsperson/source relationships only in certain categories of cases. In Minnesota,[290] for example, the privilege is excluded in defamation actions where the issue of malice is raised and in proceedings where there is probable cause to believe that the source has information clearly relevant to a specific violation of the law other than a misdemeanour. Such an approach rarely satisfies the newsperson claiming a privilege and frequently the categories formulated are alleged to be artificial and arbitrary.[291] This approach has severe limitations.
954. Proposal—A Discretion to Excuse. The existence of a prima facie obligation of newspersons and others to provide all relevant information to the court can be tempered by the existence of a discretion in the court to excuse the witness from testifying under certain specified circumstances. The Law Reform Commission of Western Australia declined to recommend the enactment of such a discretion:
The Commission is of the view that it would be wise not to attempt to crystallise the practice of the courts in statutory form at this stage ... The judicial discretion in this area is as yet unsettled and judicial attitudes appear to be changing fairly rapidly.[292]
The New Zealand Torts and General, Law Reform Committee,[293] however, adopted the discretionary approach and proposed that it should be put on a statutory basis. It is this approach that is recommended. Flexibility is thereby provided for determination of the advisability of compulsory disclosure or maintenance of confidentiality on the merits of the individual case, weighing in the balance all relevant public interests and considering the importance of the evidence.[294]
955. Confidential Relationships. It is clear that there are circumstances in which confidentiality is crucial to the furtherance of the accountant-client relationship. Similarly, there are times when the function of the relationship is closely aligned with that of giving legal advice, possibly in contemplation of litigation. Under these circumstances, it is inappropriate that there by a hard and fast rule that such communications not receive the benefit of any form of protection. Under the general discretion proposals, the accountant-client relationship would receive a similar measure of protection to that accorded to other relationships in which confidentiality is an important factor. Thus, flexibility is achieved and the possibility of fairness in individual cases allowed. The public interest in the efficient and informed disposal of litigation in each case will be balanced against the public interest in the retention of confidentiality within the relationship and the needs of the particular and similar relationships.
956. Availability of Discretion. The proposed discretion will be available to protect other confidential communications in relationships where confidentiality is particularly important. For example, communications between teacher and student and between student counsellor and student can be protected under the proposal.
[1] ID MacPhail, Research Paper on The Law of Evidence of Scotland, Scottish Law Commission, Edinburgh, 1979. 489.
[2] See Law Reform Committee, England and Wales, Report No 16, Privilege in Civil Proceedings, HMSO, London, 1967, para 1.
[3] A privilege at its lowest can be said to be an ‘exceptional right or advantage’, E Jowitt & C Walsh, Jowitt’s Dictionary of English Law, Sweet and Maxwell, London, 1977, vol 2, 1430. See also J Burke, Osborne’s Concise Last Dictionary, Sweet and Maxwell, London, 1976, 6th edn, 264.
[4] See Manitoba Law Reform Commission, Report on Medical Privilege, Govt Printer, Winnipeg, 1983, para 2.05.
[5] See R Slovenko, ‘Psychiatry and a Second Look at the Medical Privilege’ (1960) 6 Wayne L Rev 175, 177.
[6] Wigmore goes as far as to call it an ‘obstruction to the truth-finding process’. JT McNaughton (ed) Wigmore on Evidence, Little Brown & Co, Boston, 1961, vol 8, para 2250.
[7] Great Britain, Committee on Privacy, Report, HMSO, London, 1972, (Chairperson: Rt Hon K Younger) 15.
[8] ‘Privacy and the Individual’ [1976] National Health Law 7.
[9] See RH Woellner, ‘The Law and Medical Confidentiality’, 1st Report of the James McGrath Foundation Institute of Law and Medicine, December 1980, 18.
[10] See Australian Law Reform Commission, Report No 22, Privacy, AGPS, Canberra, 1983, vol 1, part 1 (ALRC 22).
[11] Ontario Commission on Freedom of Information and Individual Privacy, Report on Public Government to Private People, Queen’s Printer, Toronto, 1980, vol 3.
[12] For example, the law relating to breach of confidence. See also Denning LJ in R v Harman [1981] 2 WLR 310; Lord Denning, What Next in the Law? Butterworths, London, 1982, 219. It is specifically protected by The International Covenant on Civil and Political Rights 1966 (1980) Aust TS No 23 (ICCPR) art 17. See Human Rights Commission Act 1981 (Cth) Sch 1:
1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family. or correspondence, nor to unlawful attacks on his honour and reputation.
[13] Most courts also have the power to prevent information being published outside the court.
[15] See RA Posner, ‘The Right of Privacy’ (1978) 12 Georgia L Rev 393,397.
[16] See ALRC 22, para 76.
[17] It is proposed that two ancient privileges—those against the production of title deeds and documents relating only to the case of the party in possession of the documents—be abolished. For reasons—paras 446, 887, 466-7. For differences in existing law, see Appendix C, para 214. The rule in Russell v Russell [1924] UKHL 1; [1924] AC 687 (witness not competent/compellable to give evidence of lack of sexual relations for purpose of demonstrating illegitimacy of child) and the privilege against answering questions tending to prove adultery are abolished in most jurisdictions. This situation is maintained under the proposals. The privileges available will be only those referred to in the legislation.
[18] Similar to the approach taken in New Zealand—Evidence Amendment Act (No 2) 1980.
[19] For these reasons Wigmore’s famous four conditions for the creation of a privilege which attaches to a given class of a relationship are not satisfied—see Wigmore on Evidence, para 2285. The conditions, all of which he required to be satisfied are:
(1) the communications must originate in a confidence that they will not be disclosed;
(2) the element of confidentiality must be essential to the full and satisfactory maintenance of the relationship between the parties;
(3) the relation must be one which in the opinion of the community ought to be sedulously fostered;
(4) the injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.
[20] We are not here concerned with the broader issue of the accused’s right to silence out-of-court. See Appendix C, para 118, and above, para 367-70 and 756-8.
[21] J Bentham, Rationale of Judicial Evidence, Hunt & Clarke, London, 1827 (Reprinted 1978 by Garland Publishing, New York).
[22] Pyneboard v TPC (1983) 45 ALR 609, 621-2. See also J Weinstein, ‘The Law’s Attempt to Obtain Useful Testimony’ (1957) 13 J Social Issues 6, 9.
[23] E Griswold, The Fifth Amendment Today, Harvard Uni Press, Cambridge, 1955, 7.
[24] Pyneboard v Trade Practices Commission (1983) 45 ALJR 609, 621 (Murphy J); Baker v Campbell (1983) 49 ALR 385.
[25] See Bentham’s arguments discussed in Wigmore on Evidence, para 2250.
[26] According to Article 14(3)(g) of the International Covenant on Civil and Political Rights. In the determination of any criminal charge against him, everyone shall be entitled ... ‘not to be compelled to testify against himself or to confess guilt. The protection in the Covenant, however, applies only to persons accused of crime. It does not consider whether a person in a trial or in a civil proceeding can refuse to testify because the testimony might lead to his being charged, tried, and convicted. A possible breach of the section would be constituted by the use in later proceedings of self-incriminating evidence provided by a witness in a previous trial. This would depend on whether such statements against interest could be said to constitute ‘testifying against’ oneself or ‘confessing guilt’. See NA Noor Muhammad, ‘Due Process of Law for Persons Accused of Crime’ in L Henkin (ed), The International Bill of Rights, Columbia University Press, New York, 1981, 155.
[27] It is given for many purposes of which procuring a witness’ evidence is but one. See JD Heydon, ‘Obtaining Evidence versus Protecting the Accused: Two Conflicts’ [1971] Crim L Rev 13, 14; Man v Ward [1741] EngR 532; (1741) 2 Atk 228, 229; R v Teal [1809] EngR 179; (1809) 11 East 307; Elworthy v Bird (1824) 2 Bing 258; cf O’Connor (1843) 4 St Tr (NS) 935, 1026-31 where the nolle was entered while the accused was actually in the box as a prosecution witless. The defence objected and Rolfe B refused to allow the evidence to be given until the prosecution agreed to a direct acquittal.
[28] R v Allen [1862] EngR 309; (1862) 1 B & S 850.
[29] R v Ridpath (1713) 10 Mod 152.
[30] Goddard v Smith [1795] EngR 1809; (1704) 3 Salk 245.
[31] Heydon, 13.
[32] In the case of a co-accused a more satisfactory alternative is acquittal after a decision not to offer evidence. The effect of this is that the witness can plead autrefois acquit if later charged with the same offence or one of a substantially similar nature. Again, however, the availability is limited. See R v Connelly [1964] AC 1254, 1305-6 (Lord Morris of Borth-y-Gest); Blackstone’s Commentaries, Book IV (1759 edn) 329; M Hale, The History of the Pleas of the Crown, Payne et al, London, 1800, vol 2, 240; R v Storey [1978] HCA 39; (1978) 140 CLR 364.
[33] See Frank J in his dissenting judgment in United States v Grunewald [1956] USCA2 319; 233 F 2d 556, 580-582 (1956).
[34] See BD Meltzer, ‘Required Records, the McCarran Act, and the Privilege Against Self-Incrimination’ (1950-51) 18 U Chi L Rev 687, 692-3.
[35] Bentham calls the ‘hardship’ argument ‘the old woman’s reason’, and makes the telling point that if it is hardness that we wish to fix upon as the summum malum, then it is punishment of the guilty that we should most especially shrink from because that is what is most unpleasant of all for the guilty.
[36] New York State Constitutional Convention Committee, 9 Problems Relating to Judicial Administration and Organisation 924.
[37] ‘Organised Crime’, Paper presented to the 53rd ANZAAS Congress, Perth, Western Australia, 16-20 May, 1983, 106.
[38] Royal Commission of Inquiry into Drug Trafficking, Report, AGPS, Canberra, 1983, 845 (Stewart Commission).
[39] Note too the inroads by specific legislation (see Appendix C, para 218).
[40] See for the use of the nolle prosegui, text accompanying n 28-33.
[41] See Frank J, n 33 above.
[42] It cannot be assumed that the witness is guilty of some offence—the privilege applies where the answer may tend to incriminate him (for example, that he was present at the scene of a crime but in fact had nothing to do with it).
[43] For specific criticisms of the existing certification procedure and see above, para 465.
[44] On the basis of information about the operation of the ACT provisions—above.
[45] eg Contravention of Pt IV of the Trade Practices Act 1974 (Cth) carries civil penalties for individuals of up to $50,000.
[46] The accused when giving evidence cannot claim the privilege in respect of questions the answers to which may tend to incriminate him of the crime with which he is charged—eg, prior similar conduct. This resolves uncertainties in the law. See Appendix C, para 209.
[47] Triplex Safety Glass Co v Lancegaye Safety Glass Ltd. [1939] 2 KB 395. This has been followed in Alberta—Webster v Salloway. Miles and Co. [1931] 1 DLR 831, 833, 834. See Appendix C, para 213-4.
[48] See MJ Young & G Evans, A National Crimes Commission?, Policy Discussion Paper, AGPS, Canberra, 1983, 21-22; See now Controlled Consultants v Commissioner for Corporate Affairs [1984] VicRp 11; [1984] VR 137, 153 for dicta accepting English view.
[49] The confidential communication privilege will also be available.
[50] See cl 107, 112. The obligation is not imposed where the witness or party has legal representation.
[51] Compare the problems with the ACT, Tasmanian and Western Australian procedures and see discussion below about State Privilege, para 867.
[52] It is not proposed to legislate generally about the drawing of inferences from evidence given or conduct occurring in a trial. It is neither necessary nor possible. As to existing law, see Wentworth v Lloyd [1864] EngR 492; (1984) 10 HLC 589; Wigmore on Evidence, para 2322; JH Buzzard, R May & MN Howard (ed), Phipson on Evidence, Sweet & Maxwell, London, 1976, para 585. (Note—Phipson states that generally no adverse inference should be drawn—‘except perhaps in the case of not answering criminating questions’. The text, however, refers to an accused failing to give evidence, not a witness relying on the privilege against the self-incrimination.)
[53] Broome v Broome [1955] 2 WLR 401, 206-7 (Sachs J).
[54] JA Gobbo, D Byrne & JD Heydon, Cross on Evidence, 2nd Aust edn, Butterworths, Sydney, 1979, para 11.1ff; ID MacPhail, Research Paper on the Law of Evidence of Scotland, Scottish Law Commission, Edinburgh, 1979, 489. See also Law Reform Committee, 16th Report: Privilege in Civil Proceedings, HMSO, London, 1967, para 1.
[55] The proposal in terms prevents evidence being ‘given’. This formula is preferred to other options. The rationale requires non-discloure.
[56] Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1, 48 (Stephen J).
[57] Alister v R [1984] HCA 85; (1983) 50 ALR 41, 44-45 (Gibbs CJ).
[58] It was thought that the term ‘matters of State’ is reasonably well understood in the common law, but that it would assist to define the term in an inclusive way. The definition includes reference to the identity of informers. In preparing the proposals, consideration has been given to the Freedom of Information Act 1982 (Cth) and the categories of exempt documents with a view to reflecting the categories. The language of ‘privilege’ has not been used, principally because the proposal does not confer a right on persons to protect the communications.
[59] cf Alister v R [1984] HCA 85; (1983) 50 ALR 41, 44-46 (Gibbs CJ) 81 (Brennan J).
[60] The judge could, for example, inform the Attorney-General or other appropriate officer and seek his reaction.
[61] Evidence Act 1898 (NSW) s 60-3; Evidence Amendment Act 1982 (NT) s 42D.
[62] Note also Judiciary Act 1903 (Cth) s 79 & 80.
[63] Northern Territory (Self-Government) Act 1978 (Cth), based on Constitution s 122.
[64] No footnote entry
[65] [1978] HCA 43; (1978) 142 CLR 1. Reference to duty to defer inspection to enable Attorney-General to appeal—Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1, 43.
[66] From mediaeval times, legal records show the use of informers by the authorities. Their value in ferreting out crime was recognised in the English practice of medieval law called approvement. On being arraigned on a charge of treason or felony, the appraiver confessed his guilt and, in order to obtain a pardon, offered to assure and assist in the conviction of other criminals. If the other criminal was found guilty, the appraiver was pardoned. If the ‘criminal’ were acquitted, the appraiver was hanged. See F Pollock & FW Maitland, History of English Law before the Time of Edward I, Cambridge University Press, Cambridge, 1895, 631.
[67] Research undertaken in America suggests that ordinary private citizens are the most prolific source. Less commonly, information is received from a participant in a crime who has decided to turn against his co-authors. Occasionally information is received from a ‘plant’ employed by a law enforcement agency or from a self-appointed investigator of criminal activity. See ‘Note: An Informer’s Tale: Its Use in Judicial and Administrative Proceedings’ (1953-54) 63 Yale LJ 206.
[68] Worthington v Scribner (1872) 109 Mass 487, 488 (Gray CJ); see also R v Lewes; ex parte Home Secretary [1973] AC 388, 408.
[69] See Comment (1934) 22 Calif L Rev 667, 676.
[70] Note: 63 Yale LJ 207. The point is also made that if the informer is engaged in any form of counter-espionage, disclosure of his identity might endanger national security.
[71] See R v Lewes; ex parte Home Secretary [1973] AC 388, 406.
[72] See para 863-8.
[73] Ellis v Deheer [1922] 2 KB 113, 121 (Atkin LJ). See also Owen v Waburton (1805) 1 Bos & Pnr 326, 329; Straker v Graham [1839] EngR 304; (1839) 4 M & W 721. See also E Campbell, ‘The Secret Chamber of the Law, Some Comments on Civil Jury Trial’ (1962-3) 36 ALJ 119, 125.
[74] See South Australian Royal Commission, Report Concerning the Conviction of Edward Charles Splatt, Govt Printer, Adelaide, 1984.
[75] See Campbell, 125.
[77] See ‘Current Topics’: ‘Misconduct in the Jury Room’ (1963) 37 ALJ 107.
[78] However, it may be argued that the case shows a need for flexibility. As Lord Atkin put it: ‘finality is a good thing but justice is better’. See Ras Behari Lai v King-Emperor (1933) 50 TLR 1, 2.
[79] See Appendix C, para 230-240.
[80] For the historical development of the privilege and its rationale see Wigmore on Evidence, para 2290; NJ Williams ‘Discovery of Civil Litigation Trial Preparation in Canada’ (1980) 58 Can Bar Review 1.
[81] [1976] HCA 63; (1976) 135 CLR 674, 685.
[82] cf Cotton LJ in Kennedy v Lyell [1883] UKLawRpCh 103; (1883) 23 Ch D 387, 404.
[83] Re Bell [1980] HCA 26; (1980) 30 ALR 489, 504 (Murphy J); Williams; the rationale was discussed more recently in Baker v Campbell (1983) 49 ALR 385.
[84] Baker v Campbell (1983) 49 ALR 385, 408 (Murphy J), citing AM & S Europe Ltd v Commission of the European Communities [1983] 3 WLR 17, 54 and R v Uljee [1982] 1 NZLR 561, 569.
[85] id, 416 (Wilson J); see also id, 429 (Deane J).
[86] GT Pagone, ‘Legal Professional Privilege after Baker v Campbell’ (1984) LIJ 124.
[87] Williams, 38 fn 152 and D v NSPCC [1977] UKHL 1; [1977] 1 All ER 589, 611 (Lord Simon); Wigmore on Evidence, para 2290.
[88] Re Bell [1980] HCA 26; (1980) 30 ALR 489, 499 (Stephen J).
[89] Williams, 38; Wigmore on Evidence, para 2290.
[90] Law Reform Committee (England & Wales) 16th Report, Privilege in Civil Proceedings, HMSO, London, 1967, 9. Lord Brougham also stated:
It is out of regard to the interests of justice, which cannot go on without the aid of men skilled in jurisprudence, in the practice of the courts, and in those matters affecting rights and obligations which form the subject of all judicial proceedings. If a privilege did not exist at all, everyone would be thrown on his own legal resources. Deprived of all professional assistance, a man would not venture to consult any skilful person, or would only dare to tell his counsellor half his case. Greenborough v Gaskell [1833] EngR 333; (1833) 1 My & K 98.
[91] For example, O’Reilly v The Commissioners of the State Bank of Victoria [1983] HCA 47; (1982) 44 ALR 27, 38.
[92] Baker v Campbell (1983) 49 ALR 385, 445. If there were no protection in the purely advice situation, the lawyer would presumably have to advise clients of the absence of the protection—it could be professional negligence not to do so.
[93] Williams, 50-3. Note in Baker v Campell (1983) 49 ALR 385, 400-1 Mason J argued that the privilege should be limited to the situation where litigation was in contemplation and see Wigmore on Evidence para 2318.
[94] Re Thomas Holloway [1887] UKLawRpPro 20; (1887) 12 PD 167, 170 Cotton LJ; see also Lord Blackburn, Lyell v Kennedy (No 2) (1883) 9 App Cas 81, 86. It was the lack of such necessity that resulted in the privilege not applying to the report in Wheeler v Le Marchant (1981) 17 CLD 675, 685, where litigation was not involved.
[95] 45, 46. See also Lord Simon in Waugh v British Railways Board [1979] UKHL 2; [1979] 3 WLR 150, 156. As to the lack of necessity where litigation is not involved, Williams, 45, comments that the reasoning was presumably:
That the client would not be discouraged from seeking the solicitor’s advice out of fear that information which the solicitor would need to obtain ... might subsequently be disclosed, and the client would not have that fear ... because at the time litigation had neither commenced nor was contemplated. In other words, protection for the third party communication was not necessary because the client had no cause not to authorize or allow the solicitor to make the communication.
[96] For example, Anderson v Bank of British Columbia [1876] UKLawRpCh 145; (1876) 2 Ch D 644, 657 (James LJ); Wheeler v Le Marchant [1881] UKLawRpCh 106; (1881) 17 Ch D 675, 685 (Cotton LJ); Lyell v Kennedy (No 2) (1883) 9 App Cas 81, 86 (Lord Blackburn); Waugh v British Railways Board [1979] UKHL 2; [1979] 3 WLR 150. See also Baker v Campbell (1983) 49 ALR 385, 427, 432.
[97] id, 44.
[98] Re Strachen [1895] UKLawRpCh 12; [1895] 1 Ch 439, 445 (Lindley LJ) 447 (Smith LJ) 447; Kennedy v Lyell (1883) 23 Ch D 404 (Cotton LJ); Anderson v Bank of British Columbia [1876] UKLawRpCh 145; (1876) 2 Ch D 644, 658.
[99] id, 47. For a recent consideration of these and the above considerations see Commonwealth v Frost (1982) 41 ALR 626-631 (Ellicott J). See also Baker v Campbell (1983) 49 ALR 385, 415, 427, 442-3.
[100] Lyell v Kennedy (No 3) (1884) 27 Ch D 26 (Cotton LJ) also 31 (Bowen LJ).
[101] It applies also to proofs of witnesses and the material may be disclosed in the court’s discretion.
[102] Hickman v Taylor [1947] USSC 5; (1946) 329 US 495, 511: note 516 (Jackson J).
[103] cf New Zealand Torts & General Law Reform Committee, Report on Professional Privilege in the Law of Evidence, Govt Printer, Wellington, 1977, ch 1; Canadian Law Reform Commission, Evidence Study Paper No 12, Professional Privileges before the Courts, Information Canada, Ottawa, 1975, 8.
[104] cf Mason J in Baker v Campbell (1983) 49 ALR 385, 400-1 where a parallel is drawn with other relationships. It is argued that a privilege should not apply in the advice situation when it is not available for other confidential communications. If it is thought that the policy issues are the same, then the argument has force and others should have a privilege. Under the proposals, for other reasons, a right to seek protection is provided for other relationships.
[105] Baker v Campbell (1983) 49 ALR 385, 443 (Dawson J).
[106] Pagone, 125. Pagone argues that the privilege is not in conflict with the system’s concern to discover the truth. Rather, it meets that concern at an earlier stage in the administration of justice.
[107] The common law privilege does not apply to documents evidencing transactions such as conveyances, contracts, declarations of trust etc—see, for example, Murphy J and Dawson J in Baker v Campbell (1983) 49 ALR 385, 409, 439; O’Reilly v the Commissioners of the State Bank of Victoria [1983] HCA 47; (1982) 44 ALR 27.
[108] The name and address of the client would not normally be regarded as confidential.
[109] The privilege does little to encourage frankness (though this may be questioned) and the risk of day-to-day business records being unavailable, the impediment to frank testimony and the risk of surprise if the privilege is too wide.
[110] Grant v Downs [1976] HCA 63; (1976) 135 CLR 674, 686-7, 688; see also, S Campbell, ‘Evidence and Discovery-Legal Professional Privilege’ (1980) 54 ALJ 93.
[111] McMeckan v Aitken [1891] VicLawRp 64; (1891) 17 VLR 301; Ormond v Gunnersen [1920] VicLawRp 65; [1920] VLR 402; Hawkes v Schubach [1953] VicLawRp 66; [1953] VLR 468; Lyell v Kennedy (No 2) (1883) 9 App Cas 81, 85; Sharpe v Smail (1975) 49 ALJR 130; Southwark Water Co v Quick [1878] UKLawRpKQB 22; (1878) 3 QBD 315; Bank of Russian Trade Ltd v British Screen Productions Ltd [1930] 2 KB 90; Commercial Bank of Australia Ltd v Whinfeld [1920] ArgusLawRp 61; [1920] VLR 225; Smith Kline and French Laboratories Ltd v Inter-Continental Pharmaceuticals (Australia) Pty Ltd [1969] HCA 34; (1969) 43 ALJR 308, 310; Gilchrist v Wallace Mitchell Pty Ltd [1972] VicRp 52; [1972] VR 481, 483.
[112] An alternative is to use another deponent, Swansea Corporation v Quirk [1879] UKLawRpCP 70; (1879) 5 CPD 106, where this is possible Salford Corporation v Lever [1889] UKLawRpKQB 193; (1890) 24 QBD 695.
[113] Kennedy v Lyell [1889] UKLawRpAC 36; (1889) 14 AC 437; Thwaites v Bank of Australasia [1895] VicLawRp 75; (1895) 21 VLR 222; Seal v Turner (1913) TLR 227.
[114] Grant v Downs [1976] HCA 63; (1976) 135 CLR 674, 688.
[115] Recent cases, ‘Evidence and Discovery—Legal Professional Privilege’ (1977) 51 ALJ 212, 214. See the test of Jacobs J—’does the purpose of supplying the material to the legal adviser account for the existence of the material?’—Grant v Downs [1976] HCA 63; (1976) 51 ALJR 198, 205.
[116] For a discussion of other alternatives see Waugh v British Railways Board [1979] UKHL 2; [1979] 3 WLR 150, 154.
[117] ibid.
[118] Campbell, 93.
[119] As to children, it will be for the court to determine whether the person seeking to claimior waive the privilege is entitled to do so. Such persons would include the next friend or guardian ad litem. See Elbourne v Troon Pty Ltd [1978] VicRp 15; [1978] VR 171.
[120] See cl 106(5).
[121] cf General Accident Corp v Tanter [1984] 1 WLR 100.
[122] The client may be able to rely upon other privileges for protection.
[123] See R v Barton [1972] 2 All ER 1192; [1973] 1 WLR 115, cited with approval by Lord Denning MR in D v NSPCC [1976] 2 All ER 993—but note contra R v Withers [1811] EngR 194; 1811 2 Camp 578; the reasoning is supported by Lowery v R [1974] AC 85; Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1, 42, 62; Alister v R [1984] HCA 85; (1983) 50 ALR 41.
[124] Re Bell [1980] HCA 26; [1980] 30 ALR 489, 494 (Gibbs J).
[125] Note: Law Officers Act 1964 (Cth) s 12; s 55E Judiciary Act 1903 (Cth). See Ex parte Dustings (1967) 87 WN (Pt 1) (NSW) 98; Maddison v Goldrick [1975] 1 NSWLR 557; [1976] 1 NSWLR 651, 666; Attorney-General (NSW) v Findlay and Anor (1976) 50 ALJR 637, 638 (Barwick CJ dicta).
[126] Mahadeo v R [1936] 2 All ER 813 (PC); R v Charlton [1972] VicRp 90; [1972] VR 758; Attorney-General (NSW) v Findlay (above); Mather v Morgan [1971] TASStRp 17; [1971] Tas SR 192; R v Halt (1958) 43 Cr App R 29; R v Xinaris (1955) 43 Cr App R 30; cf R v Bryant & Dickson (1946) 31 Cr App R 146. Note also the control of the courts where subpoenas are used to obtain documents Commissioner for Railways v Small [1938] NSWStRp 29; (1948) 38 SR (NSW) 564.
[127] See Appendix C, para 250-56.
[128] See Phipson on Evidence, 679; D Vaver ‘Without Prejudice Communications—their Admissibility and Effect’ (1974) 9 UBC L Rev 85, 95ff. See also Scott Paper v Drayton Paper Works (1927) 44 RPC 151, 156; Underwood v Cox (1912) 4 DLR 66, 75-6, 82 (Ont Div Ct); Greenwood et al v Fitts (1961) 29 DLR 260 (BCCA); I Waxman & Sons Ltd v Texaco Canada Ltd (1968) 67 DLR 295 (Ont HC): aff’d (1968) 69 DLR 543 (Ont CA); Pitts v Adney [1961] NSWR 535, 539.
[129] cf Theodoropoulos v Theodoropoulos [1964] P 311; Baker v Campbell (1983) 49 ALR 385, 416 (Wilson J).
[130] Rabin v Mendoza [1954] 1 WLR 271, 274. See also Turner J in Bell v University of Auckland [1969] NZLR 1029, 1035; Paddock v Forrester (1842) 3 Scott NR 715. GM Bell, ‘Admissions Arising out of Compromise—Are They Irrelevant?’ (1953) 31 Tex L Rev 239; Vaver, 96. For example, Johnston v Jackson [1880] VicLawRp 23; (1880) 6 VLR (L) 1; Re Daintree [1899] UKLawRpKQB 197; [1900] 1 QB 546.
[131] Vaver, 98. Whiffen v Hartwright (1848) 11 Beav 111; Rabin v Mendoza [1954] 1 WLR 271, 273; Kurtz and Co v Spence and Sons (1888) 58 LT 438, 441; Schetky and Acadia Ltd v Cochrane et al (1917) 24 BCR 496, 504; Paddock v Forrester [1842] EngR 146; (1842) 3 Man & G 903, 919; Goodman v Hughes (1862) 1 W & W 202.
[132] Vaver, 100 where he notes that—‘The privilege extended to communications between solicitor and client has never been put on the ground of agreement, although undoubtedly a ‘tacit agreement’ of confidentiality could be constructed; it has always been based more realistically on public policy’.
[133] See above, para 450 and Justice Nygh, Submission (August 1983).
[134] Australian Law Reform Commission, Report No 15, Sentencing of Federal Offenders, AGPS, Canberra, 1980 (ALRC 15) para 125.
[135] See Appendix C, para 195-6.
[136] ibid.
[137] See above, para 529. See also the Family Law Act 1975 (Cth) s 43; Marriage Act 1961 (Cth) s 46.
[138] Cross on Evidence, para 11.24.
[139] RM Hutchins & D Slesinger, ‘Some Observations on the Law of Evidence: Family Relations’ (1929) 13 Minn L Rev 675, 680-2.
[140] EW Cleary (ed) McCormick’s Handbook of the Law of Evidence, 2nd edn, West Publishing Co, St Paul, Minn, 1972, 172ff.
[141] Unlike the position with clients and lawyers.
[142] McCormick’s Handbook of the Law of Evidence, 173.
[143] ibid.
[144] Law Reform Commissions have reflected differing views on the subject, varying from proposing the abolition of the privilege, through incorporation of a discretion procedure to its retention.
[145] Under the proposal, spouses are compellable witnesses in civil trials.
[146] A further option is to rely on the proposed discretion to excuse a witness from giving evidence of confidential communications.
[147] It must acknowledged, however, that in the United States at least there is support for the maintenance of the privilege even after the cessation of the marriage. Wigmore on Evidence, para 2341, for example, comments:
The privilege is intended to secure such a guarantee against apprehension of disclosure as will induce absolute freedom of communications. This can be attained only by continuing the protection in spite of the termination of the marital relation. Hence, it has always been conceded that the death of the person communicating does not terminate the privilege. ... In the same way, the privilege does not terminate with divorce.
The proposal, however, accords with the better view of existing law.
[148] See above and Appendix C, para 10.
[149] There were seen to be dangers in a witness being able, as general proposition, to seek exemption as to part of his evidence. See above para 538.
[150] Northern Territory, Victoria, Tasmania.
[151] Mullen v United States [1959] USCADC 62; 263 F 2d 275, 280 (DC Cir 1958).
[152] See Canon Laws 983 and 1388 (1983, Code of Canon Law); Australian Episcopal Conference, Submission 15 December 1983.
[153] See S Reese, ‘Confidential Communications to the Clergy’ (1963) 24 Ohio State LJ 55, 63; RL Stoyles, ‘The Dilemma of Constitutionality of the Priest-Penitent Privilege—The Application of the Religion Clauses’ (1967) 29 Uni of Pitt L Rev 27, 58-59; S Campbell, ‘Catholic Sisters, Irregularly Ordained Women and the Clergy-Penitent Privilege’ (1976) 9 Uni Cal Rev 523, 524.
[154] Some though would argue that the sacramental nature of the Catholic confession renders it different in character to that of other denominations and religions.
[155] See, for example, Alaska, Ariz, Colo, Idaho, Kan, Ky, Mich, Minn, Mont, Neb, Nev, NY, ND, Ohio, Ore, RI, SD, Utah, Wash, Wyo.
[156] Ark, Iowa, Vt, Md, Mich, Pa. It seems that where legislation extends the privilege to ‘minister of the gospel or priest no particular significance should be attached to the word ‘gospel’.
[157] See Hawaii, Ind, NM; Virginia uses the words ‘regular minister of religion’.
[158] See Fla, Ga, Ill, Mass, NC, Pa, SC, Tenn. The privilege is extended in three states to ‘religious practitioners’. Cal, 111, NJ.
[159] Mass, RI, SC.
[160] Tenn, Va.
[161] See S Reese, Confidential Communications to the Clergy (1963) 24 Ohio St LJ 55, 65.
[162] R Pike, Jehovah’s Witnesses, Philosophical Library Inc, New York, 1954 quoted by Reese, 66.
[163] In addition, what is a religion? The Church of The New Faith v Commissioner of Payroll Tax [1983] HCA 40; (1983) 49 ALR 65.
[164] Statement by Rev F Rex, Rector of Trinity Church in Wilmington, Delaware, made in civil action no. 154, Superior Court, June 26, 1961, quoted by R Slovenko & GL Usdin, Psychotherapy, Confidentiality and Privileged Communication, Charles C Thomas, Illinois, 1966, 12-13. See also the case of Kruglikov v Kruglikov (a rabbi counselled a couple with marriage difficulties) 217 NYS 2d 845 (Sup Ct 1961).
[165] See The Advocate (4 February 1982) 8—see also Canon HE Palmer, Letter, Sydney Morning Herald (19 September 1983)—in over 40 years, evidence given twice, on neither occasion was it of a confession though he had heard ‘thousands’.
[166] Options for defining and, therefore, limiting the obligation include:
• Duty of Confidence Definition. The Law Commission, Report No 110, Breach of Confidence, HMSO, London, 1981, 188, defines ‘obligation of confidence’ as follows:
3(1) A person who has acquired information from another person shall owe the other an obligation of confidence under this section with respect to the information if—
• Link to Occupations. The obligation could be limited to ‘professional or occupational obligations of confidence—including ...’ A justification for this approach is that the arguments for the development of the power relate principally to professional relationships.
[167] For general issues of policy see above, para 847-52.
[168] Tasmania, Victoria, Northern Territory—See Appendix C, para 197-201.
[169] RP Wood, ‘Evidence: Justification for Extension of the Psychotherapist Privilege’ (1977-78) 17 Washburn LJ 672. Wood specifically addressed the patient/psychiatrist relationship. It has been suggested by many that the physician/patient position is analogous.
[170] Note the importance which Chelsa attached to the confidentiality of relations: ‘faith in the doctor is one of the greatest aids to recovery. A doctor should be careful never to betray the secrets of his patients for if a man knows that other men’s secrets are well kept, he will be readier to trust him with his own’.
[171] Wood, 673-4. See also JT Poltz, ‘Psychiatrist’s Duty to the Public: Protection from Dangerous Patients’ (1976) U ILL LF 1111.
[172] See, for example, Woellner, 17ff; R Slovenko, ‘Psychiatry and a Second Look at the Medical Privilege’ (1960) 6 Wayne L Rev 175, 176ff.
[173] See, however, DW Shuman & MS Weiner, ‘The Privilege Study: An Empirical Examination of the Psychotherapist-Patient Privilege’ (1982) 60 NC L Rev, 893; DW Shuman, ‘The Privilege Study: The Psychotherapist-Patient Privilege in Civil and Common Law Countries’, 6th World Congress on Medical Law: Reports, 1982, vol 1, 184ff.
[174] Cross on Evidence, para 282.
[175] MD Altschule, ‘Bad Law, Bad Medicine’ (1977) 3 American Journal of Law and Medicine 295-297. See the comments of Justice MD Kirby: ‘Law Reform and the General Medical Practitioner’, Speech delivered to the General Practioners’ Society in Australia, 14th Annual Conference, 21 March, 1981; and, ‘Limits to Professional Confidentiality?’ Speech delivered to Medico-Legal Society of Queensland Seminar, 14 May, 1981.
[176] R v Hawke [1974] 16 CCC (2d) 438, 454.
[177] See GS Sharp, ‘Legislative Recognition of a Physician/Patient Privilege’ (1975) 23 Chitty’s LJ 64; SA Saltzburg: ‘Privileges and Professionals: Lawyers and Psychiatrists’ (1980) 66 Virginia L Rev 597, 621.
[178] EM Morgan, ‘Foreword’ in American Law Institute, Model Code of Evidence, Philadelphia, 1942, 28-29.
[179] See below, para 923-9 for research into confidentiality and treatment by psychotherapists. It is frequent for patients to have no idea of the law as to the physician’s rights or duties to divulge information, meaning that such a consideration does not influence their decision to seek treatment. Chafee dismisses the argument that the privilege is necessary to induce persons to see a doctor as sounding like a philosopher’s speculation on how men may logically be expected to behave rather than the result of observation of the way men actually behave: Z Chafee, ‘Privileged Communications: Is Justice Served or Obstructed by Closing the Doctor’s Mouth on the Witness Stand?’ (1942-43) 52 Yale LJ 607, 609.
[180] RM Hutchins & D Schlesinger, ‘Some Observations on the Laws of Evidence’ (1928) 28 Col L Rev 4.
[181] Wigmore on Evidence, para 2380a.
[182] McCormick’s Handbook of the Law of Evidence, 225. In comparison, the client, in deciding what facts to reveal to his lawyer, is likely to give some thought to the possibility of exposure of his statements in court, the lawyer’s office being in the public mind at least the very ante-room to the courthouse.
[183] Wigmore on Evidence, para 2380a. See also Manitoba Report, Medical Privilege, para 2.13.13.
[184] See above, para 850.
[185] See also the Declaration of Geneva; B Knight, Legal Aspects of Medical Practice, 2nd edn, Churchill Livingstone, Edinburgh, 1976.
[186] See Knight, 3.
[187] See Slovenko & Usdin, 5.
[188] See AW Burton, Medical Ethics and the Law, 3rd edn, Australasian Medical Publishing Co Ltd, Glebe, 1979, 33.
[189] See also LRC Haward, Forensic Psychology, Batsford Academic Educational Ltd, London, 1981, 236 for the English crime of concealing an offence.
[190] See, for example, AMA Code of Ethics, Appendix C, para 197.
[191] See Woellner 47ff; Slovenko, ‘Psychiatry and a Second Look at Medical Privilege’, Sub-Committee of the Australian Crime Prevention, Correction and After Care Council, Report, presented at the 6th Conference of the Council (August 1971).
[192] See Note, ‘Should Confidential Communications to Doctors be Privileged?’ (1939) 13 ALJ 1.
[193] id, 2.
[194] See DW Shuman & MS Weiner, ‘The Privilege Study: An Empirical Examination of the Psychotherapist-Patient Privilege’ (1982) 60 NCL Rev 893, 907.
[195] eg California Evidence Code, 996; New York Proposed Code, Article 504(d); US Federal Rules, Standard 504. Proposals vary. The issue was recently considered by the Institute of Law and Medicine in New South Wales. It recommended the introduction of a doctor-patient privilege. The exceptions to the privilege recommended were waiver; use of the therapeutic relationship as a means toward the commission of crime; where testamentary capacity is the matter in dispute; where recourse to the confidential information was needed to prevent the conviction of either patient or medical practitioner on criminal charges. The Institute’s proposals concentrate upon the desirability of maintaining confidentiality wherever necessary in the doctor-patient relationship. The Institute’s paper, however, does not come to terms with the key issue—whether it is of the ‘very essence of a successful therapeutic relationship’ between doctor and patient that the patient be able to proceed with confidential communications in the absolute assurance that nothing that he entrusts in confidence to his doctor will be revealed even in the courts. As noted above, this is a dubious assumption and one more proper for the relationship between psychotherapist and patient than of the very essence of that between doctor and patient. However, the information and arguments contained in the Institute’s paper highlight the need for flexibility in determining whether to breach the confidence in particular instances.
[196] See Appendix C, para 200-1.
[197] See para 454.
[198] eg HA Hammelmann, ‘Professional Privilege: A Comparative Study’ (1950) 28 Can Bar Rev 750, 757; Woellner, ibid.
[199] See above, para 878. See Law Reform Commission of Manitoba, Report on Medical Privilege, Govt Printer, Winnipeg, 1983, para 2.13.7.
[200] cl 103. This approach is consonant with that apparently developing under Anglo-Australian common law and with the recommendations of the Torts and General Law Reform Committee, the Canadian Law Reform Commission and the Federal Provincial Task Force on Uniform Rules of Evidence.
[201] See J Kovel, A Complete Guide to Therapy: from Psychoanalysis To Behaviour Modification, Harvester Press, Sussex, 1976, 264; I Gregory & NJ Smeltzer, Psychiatry, Little, Brown and Co, Boston, 1977, 65; Shuman & Weiner, 896. See R Slovenko, Psychotherapy, Confidentiality and Privileged Communications 40-42 (1966). Approaches used vary and include behavioural approaches and hypnotic approaches as well as ‘talking therapies’.
[202] See Appendix C, para 197-201.
[203] RM Fisher, ‘The Psychotherapeutic Professions and The Law of Privileged Communications’ (1964) 10 Wayne L Rev 609, 631.
[204] Slovenko (1960) 194.
[205] eg Judge Edgerton, Taylor v United States, 222 F 2d 398, 401 (DC Cir 1955). Judge Alverson, address delivered by Judge Luther Alverson of the Atlanta Superior Court to the North Georgia Chapter of the National Association of Social Workers in Atlanta, Ga, Oct 21, 1958, quoted by Slovenko, 187, n 42.
[206] See LRC of Manitoba, Report on Medical Privilege, para 2.32ff.
[207] See H Goldhamer & AW Marshall, Psychosis and Civilization: Two Studies in the Frequency of Mental Disease, Free Press, Glencoe, Illinois, 1953, 11.
[208] ibid.
[209] Fisher, 614.
[210] id, 615.
[211] eg Taylor v United States 222 F 2d 398 (DC Cir 1955), quoting from MS Guttmacher & H Weihofen, Psychiatry and The Law, Norton, New York, 1952.
[212] JG Fleming & B Maximov, ‘The Patient or his Victim: The Therapist’s Dilemma’ (1974) 62 Cal L Rev 1025, 1039.
[213] M Ladd, ‘A Modern Code of Evidence’ (1942) 27 Iowa L Rev 213, 225.
[214] Z Chafee, ‘Privileged Communications: Is Justice Served or Obstructed by Closing the Doctor’s Mouth on the Witness Stand?’ (1943) 52 Yale LJ 607, 616.
[215] See also Fisher, 622.
[216] DW Shuman & MS Weiner, ‘The Privilege Study: An Empirical Examination of the Psychotherapist-Patient Privilege’ (1982) 60 North Carolina L Rev 893, 917.
[217] TP Wise, ‘Where the Public Peril Begins: A Survey of Psychotherapists to Determine the effects of Tarasoff (1978-9) 31 Stanford L Rev 165, 176-183. In 1974 the Californian Supreme Court ruled that psychotherapists owe an affirmative duty of reasonable care to third parties whose persons are threatened by patients under the psychotherapists’ treatment: Tarasoff v Regents of University of California 551 P 2d 334, 131 Cal Rptr 14 (1976). It made clear that the obligation to protect a patient’s confidences must yield when a therapist determines, or should determine, that a patient presents a serious danger to another person. The Wise study surveyed psychiatrists and psychologists to ascertain how the decision in fact had affected the practices of therapists.
[218] See S Goldstein & J Katz ‘Psychiatist-Patient Privilege: The GAP Proposal and the Connecticut Statute’ (1962) 36 Conn BJ 175, 188; Fleming & Maximov, 1039ff.
[219] Fleming & Maximov, 1040, but see California Evidence Code 1014, Legislative Comment, West Publishing, St Paul, 1966.
[220] Writing in 1952, MS Guttmacher & H Weihofen Psychiatry & Law, WW Norton & Co, New York, 1952, 271-272 make a similar point:
Of infidelities and sexual perversion, it is obvious that the patient is likely to have the possibility of litigation in mind, and probably would not be willing to speak frankly to his psychiatrist if he knew that the latter could be compelled to testify.
[221] See, for example, Slovenko (1960) 187—who claims ‘without confidentiality, a person would hesitate to see a psychiatrist, much less to make revelations to him’.
[222] See I Brewer & S Freud, ‘Studies on Hysteria’ in the standard edition of the Complete Psychological Works of Sigmund Freud, vol 2, Hogarth Press, London, 1955, 3; S Freud ‘Introductory Lectures on Psycho-Analysis’ in id vol 15 & 16; S Freud, The Interpretation of Dreams, Penguin, Harmondsworth, 1976; see also AM Friedman, HI Kaplan & BJ Sadock A Comprehensive Textbook of Psychiatry, 3rd edn, Williams & Wilkins, Baltimore, 1980, 495ff, 1800ff.
[223] Explicable in terms of the obstruction to the acquisition of insight into unconscious motivations. See Gregory & Smeltzer, 66.
[224] See MS Guttmacher & H Weihofen, ‘Privileged Communications between Psychiatrist and Patient’ (1953) 28 Indiana LJ 32, 33.
[225] J Dubey, ‘Confidentiality as a Requirement for the Therapist: Technical Necessities for Absolute Privilege in Psychotherapy’ (1974) 131 Am J Psychiatry 1093, 1094; EA Plant, ‘A Perspective on Confidentiality’ (1974) 131 Am J Psychiatry 1021, 1022 quoted in Shuman & Weiner, 897.
[226] ‘Deviation from Confidentiality and the Therapeutic Holding Environment’ (1978-79) 7 International J Psychoanalytic Psychotherapy 208, 210. Slovenko, ‘Psychiatry and a Second Look at Medical Privilege’ (1960) 6 Wayne L Rev 175, 185.
[227] See also MS Guttmacher & H Weihofen, Psychiatry and the Law, 272-3, WW Norton and Co, New York, 1952.
[228] See Notes and Comments—‘Functional Overlap Between the Lawyer and Other Professionals: Its Implications for the Privileged Communications Doctrine’ (1961-2) 71 Yale LJ 1226, 1255.
[229] See Guttmacher & Weihofen, 271.
[230] See Note, ‘Developments in The Law-Civil Commitment of the Mentally Ill’, (1974) 87 Harvard L Rev 1193, 1200ff.
[231] id, 1196, n 14. Constitutional Rights of the Mentally Ill, Hearings before the Subcommittee on Constitutional Rights of the Senate Comm on the Judiciary, 91st Cong, 1st and 2nd Sess 265 (1969-70); Slovenko 187.
[232] Notes and Comments, (1961-2) 71 Yale LJ 1226. Questionnaires were given to 25 marriage counsellors, 125 lawyers, 47 judges and 108 lay people.
[233] id, 1255 and 1262 for Form A, Q 6. This feeling on the part of the lay people interviewed is backed up by the responses of the psychiatrists and psychologists consulted. See 1260ff.
[234] eg, DW Shuman & MS Weiner ‘The Privilege Study: An Empirical Examination of the Psychotherapist-Patient Privilege’ (1982) 60 North Carolina L Rev 893, 915ff.
[235] See n 217.
[236] Privileges have not been construed to protect against disclosure of an individual’s status as a patient unless to do so would reveal the substance of the communication. See CT McCormick, Handbook of the Law of Evidence, West Publishing, St Pauls, 1954, 215-216: JB Weinstein and MA Berger, Weinstein’s Evidence, Matthew Bender, New York, 1981, 504-23.
[237] See Shuman & Weiner, 902.
[238] See, for example, gestalt therapy—Freedman, Kaplan & Sadock 2238.
[239] Similarly, the fact that files are in existence, thereby threatening the completeness of secrecy, and the fact that cases are discussed among therapists in no way should be construed as a breach of confidentiality to be compared to disclosure in an open court. For a different view see Shuman & Weiner, 902.
[240] RM Fisher, ‘The Psychotherapeutic Professions and The Law of Privileged Communications’ (1964) 10 Wayne L Rev, 609, 633.
[241] See, above, para 923-9.
[242] See Weinstein & Berger, 504-4. The privilege recommended, however, was hedged about by so many qualifications and exceptions that it had very little scope for operation (US Federal Rules Standard). See also protection of the psychotherapist-patient relationship by the proposal generally relating to professional privilege formulated by the Canadian Law Reform Commission, the New Zealand Torts and General Law Reform Committee and the Federal/Provincial Task Force on Uniform Rules of Evidence.
[243] See, for example US, Federal Rules Standard 504; see also Australian Medical Association Submission (August 1983) 5.
[244] See above, para 909, 917; the proposal is drafted in such a way as to avoid issues such as whether the therapist is employed by, for example, the patient or by the employer or government. The proposal applies to confidential communications.
[245] For general policy issues, para 847-52.
[246] Appendix C, para 245. D v NSPCC [1977] UKHL 1; [1978] AC 171 above. Note also Gaskin v Liverpool Court, Council [1980] 1 WLR 1549 (Records of child care authority).
[247] Note—similar issues arise in relation to teacher/student and counsellor/student relationships. These have been recognised in some States of the United States.
[248] Australian Association of Social Workers Code of Professional Ethics.
[249] James Cook University; University of Queensland; University of Sydney; University of New South Wales; Monash University; La Trobe University; Phillip Institute of Technology; University of Melbourne; Tasmanian College of Adult Education; Flinders University; South Australian Institute of Technology; Western Australian Institute of Technology and University of Western Australia.
[250] See especially MK Rosenheim, ‘Privilege, Confidentiality and Juvenile Offenders’ (1965) 11 Wayne L Rev 661.
[251] See above, para 909, 917, 932-4. This also has application to others—eg teachers and school counsellors.
[252] For general approach for claims for privilege, see above, para 847-52; on peer review, see also, ALRC 22, para 1343.
[253] Australian Medical Association Submission (August 1983) 10-11.
[254] id, 3-4.
[255] id, 2.
[256] id, 5.
[257] This involves taking an area of care or services, specifying criteria and assessing the care and services in the light of such criteria and examining variations for justification.
[258] id 5.
[259] By the AMA and The Australian Council on Hospital Standards.
[260] In November 1982, 977 hospital administrators were surveyed. The results have not yet been obtained.
[261] AMA Submission, 13. A connected issue, but one outside the evidence reference is the liability of persons serving upon the review committees to defamation actions.
[262] There is some State legislation which could be used, on specific Ministerial authorisation, to preserve the confidentiality of the work of particular committees (Health Administration Act 1983, s 23 (NSW) or particular studies (Health Act 1937-1981 (Qld) s 154M.
[263] [1977] UKHL 1; [1978] AC 171.
[264] eg surveys of particular operations or procedures. American experience appears to be that only about five to ten per cent of the deficiencies revealed by criteria auditing are matters for continuing education. Ninety to ninety-five per cent of deficiencies have little or no bearing on the doctor’s knowledge or lack of it but are due to failures in hospital management or organisation; or to poor interpersonal relationships between staff, AMA Submission, 12.
[265] A privilege has been created in a number of States of the United States of America. It seems that there are differences and, therefore, confusion, about who will be protected and on which committee (AMA Submission, App III). The approaches to the content of the privilege vary—general, except for documents that were in existence anyway; general but limited to civil proceedings; discretionary.
[266] See above, para 909, 917, 932-4, 939-41.
[267] For general policy issues see para 847-52.
[268] Issues relating to the power of courts to sentence for contempt have been canvassed by Australian Law Reform Commission, Issue Paper No 4, Contempt AGPS, Canberra, 1984. See also McGuiness v Attorney-General [1940] HCA 6; (1940) 63 CLR 73; cf Attorney General v Mulholland [1963] 1 All ER 767.
[269] RW Jencks, Vice-President of CBS Washington Bureau, quoted in PJ Shurn & JY Parker, ‘Reporter’s Privilege-Guardian of the People’s Right to Know?’ (1976) 11 New England Law Review, 405.
[270] Branzburg v Hayes [1972] USSC 169; 408 US 665, 721 (Douglas J dissenting). See Feiner v New York [1951] USSC 8; 340 US 315 (Douglas J dissenting).
[271] Terminiello v Chicago [1949] USSC 77; 337 US 1, 4.
[272] Douglas J dissenting in Branzburg v Hayes 724-5; ‘The intrusion of government into this domain is symptomatic of the disease of the society. As the years pass, the power of government becomes more and more pervasive. It is a power to suffocate both people and causes. Those in power, whatever their politics, want only to perpetuate it. Now that the fences of the law and the tradition that has protected the press are broken down, the people are the victims’.
[273] Watergate and a number of the recent English spying scandals are obvious examples.
[274] Some have alleged that the leaking of ASIO documents in May 1983 is an example.
[275] In Re Pappas (1971) 358 Mass 604, 226 NE 2d 297 and US v Caldwell [1970] USCA9 1068; 434 F 2d 1081 (9th Cir 1970).
[276] V Blasi, ‘The Newspaperman’s Privilege: An Empirical Study’ (1971) 70 U Mich L Rev 229, 245-253. A number of interesting results are present in the breakdown according to type of reporter. For instance, reporters covering radical and militant groups do not seem to rely on confidential sources a great deal more than do reporters with other assignments, while reporters covering minority groups rely on such sources even less than the average reporter in the population surveyed. See also JA Guest & AL Stanzler, ‘The Constitutional Argument for Newsmen Concealing their Sources’ (1969) 64 NWUL Rev 18, 57ff.
[277] Quoted in Guest & Stanzler, 57. See also JR Buchnam, Managing Editor, Manchester Union Leader—‘Many, many stories are based, at least in part, on information obtained from confidential sources—sources which do not wish to be identified, but in which the newspaper has confidence in their integrity’ in Guest & Stanzler, 59.
[278] Guest & Stanzler, 60-61.
[279] Guest & Stanzler, 44, comment that lack of a privilege might inhibit the free flow of news by affecting (1) the willingness of the informant to seek out or to communicate with the newsmen; and (2) the willingness of the newsmen to seek out informants and to transmit information received from informants for publications.
[280] Certainly, the relationship is destroyed under normal circumstances by the breach of confidentiality when that actually occurs but a deterrent effect is both difficult to assess and of doubtful importance. See also NG Tinling, ‘Newsman’s Privilege: A Survey of the Law in California’ (1973) 4 Pacific LJ 880, 884.
[281] For example, the Code of Ethics of the American Newspaper Guild includes the following:
Newspapermen shall refuse to reveal confidences or disclose sources of confidential information in court or before other judicial or investigative bodies.
See GL Bird and FB Merwin, The Newspaper and Society, Prentice Hall, New York, 1942, 567.
[282] The Code’s italics.
[283] Australian Journalists Association, Constitution and Rules. Compare the American Medical Association’s principles of medical ethics which forbid revealing confidential material but then add ‘unless required to do so by law or if it becomes necessary in order to protect the welfare of the community’ (5). See the discussion of such issues by MM Reynolds, ‘Privacy and Privilege: Patient’s Professional’s and the Public’s Rights’ (1977) 5 Clinical Social Work J 29, 30.
[284] Mark Knops of the Maddison Kaleioscope, among others, would, however, probably disagree with this assertion after spending several months in jail after refusing to breach a source of confidence. See State v Knops (1971) 49 Was 2d 674, 183 W 2d 93.
[285] See Blasi, 277.
[286] Blasi, 248-249.
[287] The Law Reform Commission of Western Australia, Privilege for Journalists, Project No 53, Govt Printer, Perth, 1980 (WALRC 53) 29ff.
[288] The Law Society of Western Australia in its submissions to the Law Reform Commission of Western Australia suggested this form if, contrary to its suggestions, it was decided to enact a form of journalists’ privilege, WALRC 53, Privilege for Journalists, Govt Printer, Perth, 1980 (WALRC 53) 29-30.
[289] This is also the conclusion of WALRC 53, 30.
[290] Stat Ann s 595:021-025 (Supp 1973).
[291] See WALRC 53, 32.
[292] See WALRC 53, 35.
[293] New Zealand Torts and General Law Reform Committee, Report on Professional Privilege in the Law of Evidence, Govt Printer, Wellington, 1977, 35. Law Reform Committee, England and Wales, 16th Report, Privilege and Civil Proceedings, HMSO, London, 1967, Cmnd 3472. The Committee cited Attorney-General v Mulholland and Foster [1963] 1 All ER 767 and Attorney-General v Clough [1963] 1 All ER 420 as authority for its view.
[294] id. Compare the English approach. Section 10 of the Contempt of Court Act 1981 provides:
No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime.
957. Discretion Retained. Under present law, a trial judge in criminal cases has a discretion to exclude evidence adduced by the prosecution if it is more prejudicial than probative. There are a number of uncertainties with this discretion.[2] Some courts weight the discretion against the exclusion of evidence, but the better view is that the trial judge should balance probative value and the danger of prejudice without any preconceptions—accused persons should be protected against evidence which is more prejudicial than probative. This will help to provide a fair trial by excluding evidence which, while relevant, may be misused by the tribunal of fact. There is some uncertainty over the meaning of ‘prejudice’. But, clearly, it does not mean simply damage to the accused’s case. It means damage to the accused’s case in some unacceptable way, by provoking some irrational, emotional response, or giving evidence more weight than it should have. It is proposed to retain this judicial discretion in its conventional form.
958. Public Interests Supporting Admission. There is a public interest that reliable evidence of an accused person’s guilt be admitted into the trial and considered by the tribunal of fact. This interest may be seen from two different perspectives:
• Accurate Fact Determination. There is a public interest in accurate determination of facts in criminal (as well as civil) trials. A legal system lacks legitimacy if it does not operate on an accurate assessment of material facts.
• Crime Control. There is a public interest in punishing criminals and deterring crime. From the perspective of crime control the legal system should effectively, and efficiently, apprehend, convict and punish the guilty (and screen out the innocent at as early a stage as possible).[4] Ultimately, the claim of the crime control consideration is that the criminal process is a positive guarantor of social freedom.[5]
This public interest supports relevant evidence of an accused person’s guilt being admitted into the trial to form the basis for the necessary factual determination. If the evidence is excluded for reasons not associated with the fact finding process, then this interest is sacrificed.[6]
959. Public Interests Supporting Exclusion. Nevertheless, despite these public interests which support admission of relevant evidence in criminal cases, there is a public interest in minimising the extent to which law enforcement agencies act outside the scope of their lawful authority. There is no doubt that abuses do occur. Royal Commissions and other judicial inquiries document individual improprieties. Reported appellate decisions refer to illegal or improper actions by law enforcement agencies in obtaining evidence; these decisions comprise a minute sample of criminal cases. The question is whether the courts, in adjudicating on the admissibility of evidence, should take into account the public interests that may be affected by misconduct of law enforcement agencies. Particular relevant concerns may be:
• Discipline Police for Illegality or Impropriety. The courts are part of the criminal justice system and it may be argued that they should act to punish or discipline law enforcement officers who break the law or act in some improper way. If evidence is obtained illegally or improperly, one mechanism of ‘discipline’ available is the exclusion of the evidence. It is arguable, however, that a court considering charges against a defendant is not the proper forum to punish law enforcement officers for the manner in which they obtained evidence for the trial. Such a trial is neither equipped nor intended as a full inquiry into an officer’s conduct. More important, exclusion of the evidence may not hurt the policeman in any real way and thus fail to discipline.[7] The prosecution against the accused may be weakened, but not decisively. Other mechanisms offer, at least potentially, more direct and real ways of disciplining the erring officer. It would be surprising, however, if the exclusion of evidence did not make the particular officer more careful in future in his conduct.
• Deter Future Illegality. An extension of the previous argument is that improperly obtained evidence should be excluded from trial in order to deter police misconduct generally. The rationale is that potential exclusion of any evidence produced by such means will eliminate the incentive to such conduct. Supporters of this argument point to two distinct types of deterrence additional to any disciplinary effect of the exclusion on the particular officer who acted improperly referred to in the previous paragraph:
― general deterrence—the effect of that exclusion on other officers; and
― systemic deterrence—the effect on individual officers of an agency’s institutional compliance with judicially articulated standards.
They emphasise the dissuasive or long-term preventative effect on improper practices by law enforcement agencies. It is arguable that the behaviour of such agencies is little influenced by judicial decisions but conforms rather to the agencies’ standards even if the conduct is ‘technically’ illegal. The conclusion of a recent US study was that even in situations where the rule deters, it tends to do so in a negative fashion[8]—for example, officers fail to conduct a search or investigation at all for fear it may later lead to the exclusion of evidence and possible acquittal. This may not be surprising in view of the strictness of the American rules. Generally, however, empirical studies of the deterrent impact of the US exclusionary rule have been inconclusive.[9] The picture is unclear. It would be surprising, however, if exclusion of evidence did not have some general deterrent effect.
• Protection of Individual Rights. The legal system should act to protect and vindicate a citizen’s rights. In addition, the judicial system should vindicate the rights of other citizens by emphasising that infringement of a citizen’s rights will not be ignored.[10] It is arguable that a suspect whose rights have been infringed should not thereby be placed at any disadvantage he should be placed in the same position he would have been in if the misconduct had not occurred. To achieve this objective evidence obtained improperly should be excluded. But contrary arguments may be advanced:
― The legal system cannot prevent the infringement. It has already happened. It can attempt to compensate the individual for the infringement but the compensation should be appropriate. It may not be appropriate compensation to exclude relevant evidence obtained as a result of the infringement. Such an approach would only put the individual in the same position as if the infringement had not occurred if the evidence could not have been obtained without the infringement.
― As a remedy for improper invasions of privacy, exclusion of evidence obtained is a haphazard approach and may be wholly disproportionate to the wrong suffered.
The best solution would be one whereby the individual’s rights were vindicated without exclusion of the evidence. To the extent that alternative remedies are available and effective, they should be adopted. If they have been, and they constitute a satisfactory vindication of the individual’s rights, exclusion would be unnecessary. In reality, however, this will not always occur. Further, although the above arguments may be used to oppose an exclusionary rule, they do not justify the courts in taking no action to protect or vindicate rights.
• Fairness at Trial. An accused person who challenges the admissibility of evidence because it has been obtained illegally or improperly is, in effect, also asking whether it is fair or just to find him guilty of breaking the law when the accusers are also guilty of breaking the law, or guilty of conduct which the court should not tolerate. On the other hand, it may be argued that it is difficult for the accused to assert that admission of the evidence would be unfair or unjust if the reliability of the evidence is maximised, his mental freedom was not substantially impaired and alternative methods exist to discipline the offending officer and will be used.
• Executive and Judicial Legitimacy. If the courts permit the admission of evidence illegally or improperly obtained by an arm of government, the public will perceive that government, in particular law enforcement agencies, while purporting to maintain the law, actually claims the right to act without restraint. The government will lose respect and eventually be seen as illegitimate. As to ‘judicial legitimacy’, Justice Brandeis, in Olmstead v US,[11] desired to ‘preserve the judicial process from contamination by preventing courts from impliedly approving illegal conduct through admission of unlawfully [obtained] evidence’. Even if alternative remedies might be possible for the improprieties, the judges cannot sanction a conviction obtained by such means. The argument depends on the proposition that the public will perceive judicial failure to exclude improperly obtained evidence as indicating that law enforcement agencies are not subject to the law. On the other hand, it may be argued that if effective alternative methods are available and used to discipline or control law enforcement agencies, admission of the evidence will not have this effect. A further response to the argument is that the courts do not condone illegality in any way by admitting the evidence.[12] But this approach negates the historical concern of the courts to protect the individual from the State. Nevertheless, if alternative mechanisms are available to maintain the appropriate balance then it is arguable that adoption of the extreme remedy of exclusion, however symbolically satisfying, is unnecessary except in cases of extreme misconduct. Finally, exclusion in all cases carries with it the grave danger that people will lose respect for the law and the administration of justice when it defeats a prosecution on ‘technical’ grounds.
• Encourage other Methods of Police Investigation. In the context of interrogation misconduct, there is a public interest in encouraging law enforcement agencies to investigate crimes thoroughly and obtain evidence, other than a confession, indicating the guilt of the accused. The reason is that over-reliance on confessional evidence may lead to improprieties being used to ensure that such evidence is obtained. To put the point in a more graphic and extreme way, ‘it is far pleasanter to sit comfortably in the shade rubbing red pepper into a poor devil’s eyes than to go about in the sun hunting up evidence’.[13]
960. Proposal on Evidentiary Consequences of Misconduct. Policy considerations point to the desirability of some sort of regime for control. In deciding whether to admit evidence, one approach would be to disregard illegality or impropriety in the obtaining of evidence unless it has some effect on the reliability of that evidence.[14] Such an approach would have the merit of reducing the complexity of a criminal trial, avoiding collateral issues, and maximising the amount of reliable evidence admitted for the consideration of the tribunal of fact. It reflects a view that the issue of improper conduct should be dealt with in some forum other than the trial of a criminal defendant, for both efficiency and constitutional reasons. Nonetheless, such an approach would force trial judges to ignore serious infringements of human rights by law enforcement authorities. It would be inconsistent with the historical role of the courts in ensuring that the criminal process is fair, to require them to disregard impropriety occurring during criminal investigation and before trial. Further, such an approach would ignore the reality that, on occasion, there are no real alternative methods to obtain justice available to an individual citizen whose rights have been infringed. On balance, this approach is too extreme and out of step with modern developments in the law[15] and the historical concern of the judiciary to protect human rights.
961. Another possible approach is what has been, until recently, the American approach of a strict rule of exclusion for evidence illegally obtained.[16] Supporters of this exclusionary approach argue that:
• the approach resolves the conflict of public interests in favour of one group (those supporting exclusion of improperly obtained evidence)—the problem is not left in the hands of the individual (unrepresentative, unelected) judge. The rule reflects the view that the legislature, and not the judiciary, should decide on matters of public interest. According to this view, elected policy makers should decide which public interest has priority and legislate accordingly;
• the approach produces relative certainty and predictability. The law enforcement agency, accused persons, lawyers, and judges know what will happen if officers infringe the rights of individual suspects—the evidence obtained as a result will not be admitted;
• it is arguable that this approach has a greater impact on behaviour than a case by case discretionary approach or an emphasis on alternative remedies, particularly in those cases where the impropriety is not outrageous. The very certainty of the rule provides a strong disincentive to impropriety; and
• application of the rule in the United States causes only a very small number of acquittals.[17]
But there are a number of contrary arguments:
• the fundamental criticism of the exclusionary rule is that its benefits in protecting the rights of the citizen and deterring (to some extent) misconduct are outweighed by its associated costs in political hostility and reduced crime control;
• the rule is inflexible, making no allowance for different circumstances—it treats unconscious, accidental or trivial illegalities in the same manner as deliberate and serious illegalities;
• the rule excludes evidence even if the law enforcement officer has been, or will be, punished in an alternative forum and the individual who was wronged has been compensated;
• the rule discourages internal rulemaking and inhibits disciplining of errant officers because there is a fear that the very fact of punishments being administered for rule violations can itself be used as evidence to bolster the defence case for excluding evidence obtained by illegal methods;
• since all illegalities lead to automatic exclusion, there is an incentive for officers to perjure themselves as to whether procedural requirements were satisfied;[18]
• a court not permitted to take into account the degree of illegality or impropriety in an individual case will be tempted to find that no illegality or impropriety in fact occurred—thus reducing the protection of the substantive rules;[19] and
• the exclusionary rule may be an appropriate response to uniquely American conditions, like the huge number of separate police forces, but may not be an appropriate response to Australia.
Even in the United States, the Supreme Court has found it necessary to withdraw from its extreme position. The rule has been limited, for example, by requiring a standing to complain about the illegality,[20] by the concept of attenuation of taint from illegal acts[21] and by admitting illegally seized evidence for attacks on credibility.[22] Most recently, the Supreme Court, in United States v Leon,[23] after ‘weighing the costs and benefits’ of exclusion, held that the exclusionary rule should be modified so as not to bar admission of ‘evidence obtained in the reasonable good-faith belief’ that the conduct was legal.[24] The Commission does not propose that the American approach be adopted.
962. A number of other options have been considered by the Commission. A variation of the exclusionary rule approach similar to that adopted by the Supreme Court in Leon would be to exclude automatically evidence obtained improperly where the misconduct was deliberate. But such an approach may be too simplistic. Many factors are relevant to the balance of public interest. Even a deliberate illegality might not justify exclusion in some cases. Conversely, exclusion of evidence improperly obtained, even if in good faith, may at times be justified.
963. Another option considered was to admit the evidence if there are alternative remedies to deal with the misconduct. It can be argued that if it has been established that alternative remedies to exclusion are available and are effective the evidence should not be excluded.[25] If the prosecution failed to establish their existence, the judge could consider exclusion of the evidence. Such an approach would require the trial judge to examine the question and provide an incentive to the government to provide such alternatives, and make them effective. As a corollary, the police and lawyers would benefit from the certainty that effective alternatives would automatically end the argument that evidence should be excluded in the public interest. The argument assumes, however, that exclusion is not justified if effective alternatives exist. It rejects the proposition that the judicial system would still be tainted by the admission of the improperly obtained reliable evidence even if effective alternatives exist and are used. But there may be cases where evidentiary exclusion would be warranted even though satisfactory disciplinary and compensatory procedures were available. The misconduct may be so serious that the courts should have nothing to do with the evidence despite its probative value and the availability of such alternative procedures. Further, the deterrent effect of punishing for misconduct may be less than that of the possibility of exclusion of the evidence obtained. It may also be argued that the public interest warrants the dual deterrent of punishment and exclusion of the evidence and that in serious cases, the remedies should be seen as cumulative rather than alternative.
964. A discretionary approach seems the most appropriate one to take in dealing with illegally and improperly obtained evidence. This is the approach that has been developed by the High Court. Admittedly, any approach that is discretionary and subject only to limited appeal rights, relies heavily on the judgment of the individual judge. It also, by definition, lacks certainty of result, and therefore sacrifices predictability to flexibility. Nevertheless, it is suggested that the conflicting concerns in this area, and the wide variety of circumstances, necessitate such an approach. The Law Reform Commission of Canada has stated:
... there is an undeniable advantage in granting judges discretionary power, since it keeps the courts continually in touch with current social attitudes and may lead to the eventual evolution of the rules as the courts adapt them to changing social realities. It gives to the courts the role of guardians of the public’s freedom.[26]
An approach based on the existing discretionary approach is that which is preferred. The proposal, however, makes some changes to the law to meet some criticisms of it.[27]
• Guidance in the Exercise of the Discretion. One method of minimising the inherent difficulties in the exercise of discretionary power, and, to a certain extent, of avoiding the danger of too great a disparity between legal decisions, is to indicate precisely the nature of the conflicting interests which should be balanced and to articulate the factors which should be taken into account in the exercise of the discretion. The fundamental dilemma should be reflected—the conflict between the public interest in admitting reliable evidence (and thereby convicting the guilty) and the public interest in vindicating individual rights and deterring misconduct and maintaining the legitimacy of the judicial system. As Justices Stephen and Aickin pointed out in Bunning v Cross,[28] what is involved ‘is no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy’. It is suggested that the following factors are relevant to this balancing discretion:
(a) Probative Value of the Evidence. Exclusion of an item of evidence is more likely to endanger accurate fact finding if the evidence is highly probative than if it is of minimal relevance. It follows that the greater the probative value of an item of evidence the greater the public interest in its admission.
(b) Availability of other Evidence. Whatever the probative value of the evidence, equally cogent evidence, untainted by any impropriety, may be available to the prosecution at trial. If so, the public interest in admitting the evidence is reduced.
(c) The Seriousness of the Offence. There is, for example, a greater public interest that a murderer be convicted and dealt with under the law than someone guilty of a victimless crime.[29]
(d) Mental State. The mental state of the officer is relevant from a disciplinary perspective if the illegality or impropriety was the result of a mistaken belief that he was entitled to do what he did this would tend to reduce the seriousness of misconduct and therefore lessen the need for disciplinary action. Similarly, if misconduct is less culpable because it was inadvertent, then the moral imperative to avoid judicial taint is reduced, since the taint itself is not so serious. But this factor is less important from a deterrence perspective. Deterrence is concerned with the future, not the past. The fact that an individual officer acted under a mistaken, even reasonable, belief as to facts or the law would not negate the deterrent effect of evidentiary exclusion. The effect of exclusion would be to encourage officers to discover, and conform to, the legal requirements. Similarly, it is largely irrelevant to the criminal suspect that his rights were infringed deliberately or mistakenly. The infringement has still occurred, rights have been ignored, the damage he has suffered is the same regardless of the mental state of the officer.
(e) Gravity of the Misconduct. The gravity of the misconduct will depend on a number of separate objective factors:
(i) Seriousness of Misconduct. The greater the departure from set procedures and standards, the greater the need to discipline, and the greater the need to adopt as many forms of discipline as possible (including, in particular, evidentiary exclusion). Similarly, there is a greater public interest in deterring serious misconduct than in deterring minor, technical breaches. The greater the seriousness of the misconduct the greater the judicial taint, and the greater the need to avoid it by excluding the evidence.[30]
(ii) Pattern of Misconduct. Taking the degree of seriousness of the misconduct into account carries with it the danger that law enforcement agencies may believe they can routinely commit minor breaches without suffering the consequence of evidentiary exclusion. One factor that a trial judge should take into account, therefore, is whether the breach is one example of a wider pattern of misconduct.
(iii) Circumstances of Urgency. Where it can be demonstrated that the evidence obtained improperly could not have been obtained at all but for the impropriety this is a relevant factor in assessing the seriousness of the misconduct. The fact that, for example, the evidence would have ceased to exist if there had been any delay in securing it, may provide some excuse for the action.[31]
(iv) Ease of Compliance. Evidence that it would have been easy to comply with legal requirements or other standards of behaviour may, depending on the circumstances, either support or detract from an argument for exclusion. A deliberate ‘cutting of corners’ would support exclusion, particularly from a deterrence perspective.[32] But failure to comply with a rule which could have been simply complied with may suggest that the rule was trivial and that therefore the misconduct was not serious.
(v) Intention of the Legislature. Where the law enforcement authorities have acted illegally under the terms of a statute, the statute may ‘on its proper construction itself impliedly forbid the use of facts or things obtained or procured in breach of its terms’.[33]
(f) Infringement of Rights of Accused. The trial judge should expressly consider the extent to which the individual accused’s rights have been infringed. While this factor may be seen as an aspect of the seriousness of the misconduct, it is more appropriate to deal with it separately, given the specific public interest in protecting individuals from infringement of their rights.
(g) Alternatives to Exclusion. The availability of alternatives to evidentiary exclusion should be an important factor in the exercise of the judicial discretion. These alternatives would include civil actions, criminal prosecutions and internal and external disciplinary procedures.
In Bunning v Cross it was said that the issue of unfairness to the accused will be ‘one factor which, if present, will play its part in the whole process of consideration.[34] Consideration was given to its inclusion among the list of factors. To refer to ‘unfairness to the accused’ will not, however, give guidance as is shown by the experience of the Lee discretion.[35] The total scheme of rules of admissibility and exclusionary discretions should ensure fairness to the accused.
An argument against taking the probative value, the importance of the evidence or the seriousness of the offence into account is that law enforcement agencies will modify their behaviour accordingly, eg they may believe that they can get away with murder in a murder case. As Justices Stephen and Aickin stated in Bunning v Cross,[36] ‘to treat cogency of evidence as a factor favouring admission, where the illegality in obtaining it has been either deliberate or reckless, may serve to foster the quite erroneous view that if such evidence be but damning enough that will of itself suffice to atone for the illegality involved in procuring it’. The question is whether this danger justifies excluding from consideration some, or all, of the factors which support admission of the improperly obtained evidence. This seems too extreme an approach. One solution would be to exclude them from consideration only where officers have deliberately acted improperly—only then will consideration of these factors be relevant.[37] But to exclude them from consideration would seem too extreme an approach. The question for the judge is whether the balance of public interest favours admission—he should consider all the factors on both sides of the equation. The officers themselves, while they should avoid improper conduct, will be faced with situations where the legal requirements are vague. It would be legitimate for the judge to consider these factors. Safeguards are provided by the existence of a discretion, by inclusion as a factor on the other side whether the impropriety was part of a wider pattern of misconduct, and by the existence of other forums of review.
• Onus and Standard of Proof. On first analysis, the importance of accurate fact-finding to the trial process would suggest that the onus should be on the party seeking the exclusion of reliable evidence. The existing Bunning v Cross discretion is an exclusionary one—the onus is on the accused to prove the misconduct and justify exclusion. But the policy considerations supporting non-admission of the evidence suggest that, once the misconduct is established, the burden should rest on the prosecution to persuade the court that the evidence should be admitted. After all, the evidence has been procured in breach of the law or some established standard of conduct. Those who infringe the law should be required to justify their actions and thus bear the onus of persuading the judge not to exclude the evidence so obtained. Practical considerations support this approach. Evidence is not often excluded under the Bunning v Cross discretion. This suggests that the placing of the onus on the accused leans too heavily on the side of crime control considerations. As the Australian Law Reform Commission stated in its Interim Report on Criminal Investigation (1975), ‘things will change if the court has to find a positive reason for exercising its discretion in favour of admissibility’.[38] Finally, factors relevant to exercise of the discretion include the mental state of the law enforcement officers involved and the urgency under which they acted. It would, therefore, seem more appropriate that the prosecution have the primary responsibility of showing that the officers acted in good faith, rather than the accused having to show the reverse—the prosecution will have access to the relevant information and witnesses. Similar arguments would support the proposition that reasons for admission should ‘substantially’ outweigh exclusionary considerations.
965. Application of Proposal to Admissions. Under existing law, an improperly obtained admission may be excluded on public interest grounds in a criminal proceeding. But, in addition, an admission in a criminal proceeding is not admissible unless voluntarily made and may also be excluded under the fairness (‘Lee’) discretion. It has already been proposed to replace the voluntariness rule with a test relating to the likely truth of an admission.[39] One reason for this proposal is the unsatisfactory nature of the present rule which seeks to address both reliability and public interest concerns but fails to distinguish between them. Public interest concerns will be met, in part, by application of the proposed discretion to exclude improperly obtained evidence. An attempt should be made to give guidance as to what can constitute misconduct in relation to the obtaining of admissions. Interrogatory tactics may, for the purposes of defining misconduct, be divided into two overlapping classes—coercion and deception. Both tactics are permitted to some extent under existing law, despite the fact that both are generally regarded, in other contexts, as unethical. This reflects the social reality that normative constraints vary from situation to situation. The level of constraint will depend on the balance of public interest (the public interest in obtaining statements from suspects balanced against the public interest in protecting the privacy and dignity of the suspect) and the availability of practical alternatives. On the one side, the public interest in obtaining statements from suspects (in order to solve a crime) supports some compromise with ideal procedures. Permitting coercion and deception to some extent also reflects the fact that they can be of a trifling nature. On the other hand, sacrificing the rights of individuals to the interests of law enforcement agencies is a step along the path to the police state. Limits are justified by the philosophy that a free society depends on a substantial degree of immunity from state interference. In formulating controls it is necessary to consider the type of coercion and deception that should be controlled.
• Coercion—Issues. It is clear that, under existing law, law enforcement officers are not permitted to adopt extreme forms of physical coercion, like acts of violence, threats of violence, torture or inhuman or degrading conduct. This is not simply because of the dangers that the confession may be untrue, but also for reasons of public interest. Even if a confession obtained by such methods were proved to be true, it would still be excluded—the public interest in accurate fact determination and convicting the guilty would clearly be outweighed by the infringement of human rights and the need to deter such official misconduct. But the position with respect to other less extreme kinds of physical coercion is not so clear. Intensive interrogation for several hours is permitted, the interrogation environment is usually distinctly inhospitable and uncomfortable, the suspect could be kept without sleep. It has been argued that to obtain statements and admissions from criminal suspects it is necessary to adopt such tactics. It is argued, for example, that it is impractical to expect admissions to be obtained unless the interrogation is conducted in private and that the use of psychological techniques of persuasion are justifiable.[40] But if interrogating officers do in fact bring pressure to bear on suspects, play on their weaknesses, withhold crucial information from them, or keep them in a hostile setting, they manipulate the environment in such a way as to make rational choice more difficult. Such tactics hardly accord with respect for autonomy and dignity. Moreover, they have much greater effect on the inexperienced and ignorant than on the hardened criminal.
• Coercion—Proposal. There should be some causal connection between the impropriety and the evidence to justify its exclusion—a connection between the misconduct and the decision of the suspect to make the admission. Causal connection, in the confession context, is necessarily intertwined with the question of the mental freedom of the suspect. It can hardly be misconduct, however, for the interrogating officer to ignore a characteristic of the suspect of which he was unaware, or of which a reasonable person would have been unaware. The test should therefore take into account the characteristics of the accused of which the interrogating officer was aware or a reasonable observer would have been aware. Further, the test must take into account the impact of any controls on the conduct of investigations. Law enforcement agencies must be able to proceed with the questioning of suspects knowing with as much certainty as is possible what limits are placed upon them. In defining misconduct, it is difficult to ensure such certainty. Coercion can take many subtle and unwitting forms. To require merely a causal link between the coercion and impairment of the ability to respond rationally to questions is too limiting. While the ability may be impaired, the suspect may still be able to respond rationally to questions. It is therefore proposed that the definition include conduct likely to impair substantially the ability to respond rationally to questions.
• Deception—Issues. The law has not specified the limits on deception by law enforcement agencies. In the course of investigating crimes, law enforcement agencies are at present permitted by the courts to engage in trickery and deception and do in fact employ a considerable amount of routine deception (eg use of undercover police, informers, decoys, phonetapping). This is permitted by a necessity rationale—the end (catching criminals) justifies the means (deception) in the absence of effective alternatives. However, there will be occasions where the deception employed should not be regarded as acceptable.[41]
• Deception—Proposals. Deception involves dishonesty on the part of an officer. He should know when he is about to act dishonestly. He should also be able to judge with a reasonable degree of certainty whether the deception is likely to cause the suspect to make an admission. It is, therefore, proposed to define deception to cover deceptive conduct likely to cause the suspect to make an admission. Despite arguments to the contrary,[42] it seems difficult to distinguish the morality of coercion from the morality of deception. It is also proposed that the characteristics of the suspect be taken into account in the same way as is proposed for coercion.
It is also proposed to adopt a rule of exclusion for admissions obtained in circumstances of violence, oppressive, inhuman or degrading conduct, or the threat of such conduct. Where there is extreme impropriety during the questioning of a suspect then automatic exclusion is appropriate. Indeed, it should not be necessary to establish a causal link between the impropriety and any admission made by the suspect. Nor does there seem to be a justification for a distinction between civil and criminal proceedings—the legitimacy of the trial system is damaged by admission of such evidence.
966. Consequentially Discovered Evidence. A suspect is interrogated. The interrogators act improperly. An admission is made, and as a result of the admission incriminating real and other evidence is discovered. Under present law, the consequentially discovered evidence could be excluded applying the Bunning v Cross discretion. The policy arguments which justify exclusion of an admission obtained improperly equally justify exclusion of consequentially discovered evidence. It is therefore proposed that the public interest balancing discretion apply to such evidence.
967. Abolition. It is not proposed to retain the fairness (‘Lee’) discretion. The reasons[43] include:
• ‘fairness’ is a vague concept and the courts have failed to define precisely the principles behind it or considerations relevant to it. This maximises uncertainty and unpredictability. It makes satisfactory appellate review extremely difficult. If retained, the term would have to be defined. This is difficult and the policy issues are better dealt with in the ways proposed;
• each possible rationale for the discretion can be satisfactorily met by one of the proposed rules—reliability of the admission, reliable evidence of the admission, balancing conflicting public interests, balancing probative value and prejudice;
• retention of the discretion would mean an additional unnecessary and unsatisfactory complication of the law relating to evidence of admissions;
• the psychological comfort induced by a discretion based on fairness may well be illusory and may be veiling a position which is causing injustice. There are very few reported cases where it has been exercised in favour of the accused.
968. Scope. At present an appeal court has limited scope to vary a trial judge’s exercise of the Bunning v Cross discretion.[44] This judicial restraint is understandable. It derives from a number of factors. Reasonable men may hold differing views on the exercise of a discretion. There is a danger of large numbers of appeals if full review of discretion is permitted. In addition the view is generally held that the trial judge is usually in a better position to decide how a discretion should be exercised because he sees and hears the witnesses and follows all aspects of the trial. An issue that needs to be considered is whether it is appropriate to retain the existing limited appellate control where a discretion involves consideration of matters of public interest. At this stage it is not proposed to change the existing law.
[1] In the discussion of the concept of relevance, it was proposed to recognise expressly its discretionary component. The proposed discretion, applicable in both civil and criminal trials permits a trial judge to exclude otherwise relevant and admissible evidence where the probative value of the evidence is substantially outweighed by possible disadvantages flowing from admission.
[2] See Appendix C, para 259.
[3] For earlier consideration of the question by the Commission see Australian Law Reform Commission, Report No 2, Criminal Investigation, AGPS, Canberra, para 298 (ALRC 2); and Australian Law Reform Commission, Report No 22, Privacy, AGPS, Canberra, para 1167 (ALRC 22).
[4] See HL Packer, The Limits of the Criminal Sanction, Stanford University Press, Stanford, Cal, 1968, 149-246.
[5] MH Yeo, ‘The Discretion to Exclude Illegally and Improperly Obtained Evidence: A Choice of Approaches’ (1981) 13 MUL Rev 31, 38.
[6] But it should be noted that the general deterrent effect of criminal punishments is not likely to be seriously diminished by acquittals of the guilty resulting from public interest evidentiary exclusion since a criminally inclined person would hardly be likely to rely on such a possibility when calculating his risks.
[7] See Great Britain, Royal Commission on Criminal Procedure, England & Wales, Report, HMSO, London, 1981, para 4.125.
[8] JD Hirschel, Fourth Amendment Rights, DC Heath & Co, Lexington, Mass, 1979, 99-100.
[9] BC Canon, ‘Ideology and Reality in the Debate over the Exclusionary Rule: A Conservative Argument for its Retention’ (1982) 23 S Texas LJ 559, 572.
[10] In Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54, 75 Stephen and Aickin JJ referred to ‘society’s right to insist that those who enforce the law themselves respect it, so that a citizen’s precious right to immunity from arbitrary and unlawful intrusion into the daily affairs of private life may be unimpaired’.
[11] [1928] USSC 133; 277 US 438, 484 (1927).
[12] B Downey, ‘Judicial Discretion and the Fruit of the Poisoned Tree’ (1978) 8 HK LJ 43, 52-4.
[13] JF Stephen, A General View of the Criminal Law of England, 2nd edn, Macmillan, London, 1890, 188, n 2.
[14] Such an approach is arguably the English approach for all kinds of evidence except confessions: R v Sang [1979] UKHL 3; [1980] AC 402.
[15] See Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54; Cleland v R [1982] HCA 67; (1982) 43 ALR 619.
[16] Evidence obtained in breach of the search and seizure requirements of the Fourth Amendment of the Constitution must be excluded from the trial: Mapp v Ohio [1961] USSC 142; 367 US 643 (1961). Where a criminal suspect makes admissions after the police have failed to accord him his rights under the Fifth and Sixth Amendments, the admissions must be excluded: Miranda v Arizona [1966] USSC 143; 384 US 436 (1966); Escobedo v Illinois [1964] USSC 152; 378 US 478 (1964). Under the doctrine of ‘the fruit of the poisoned tree’, if evidence is discovered or obtained as a result of those breaches, then that evidence too may be excluded: Wong Sun v US 371 US 471 (1963).
[17] One study on the impact of the rule in federal courts found that in only 1.3 per cent of the cases was evidence excluded and in less than l per cent did this exclusion affect the outcome of the case: Comptroller General of the United States, Impact of the Exclusionary Rule on Federal Criminal Prosecutions, Report No GGD-79-45 (19 April 1979). Only 4/10 of 1 per cent of cases which were eventually not prosecuted were turned down due to search and seizure problems.
[18] JH Skolnick, Justice without Trial: Law Enforcement in Democratic Society, John Wiley, New York, 1966, 214-5.
[19] J Kaplan, ‘The Limits of the Exclusionary Rule’ (1974) 26 Stanford L Rev 1027, 1039.
[20] Brown v US 411 US 223 (1973).
[21] In Wong Sun v US 371 US 471 (1963), although a confession was made after an illegal arrest, it was held admissible because the accused was released after his illegal arrest and returned voluntarily to make the confession several days later.
[22] Wilder v US [1954] USSC 11; 347 US 62 (1954).
[23] 52 US Law Week 5155 (1984).
[24] id, 5158. The precise rationale was that (id, 5155) ‘the exclusionary rule should be modified so as not to bar the use in the prosecutor’s case-in-chief of evidence obtained by officers in reasonable reliance on a search warrant issued by a detached and neutral magistrate’.
[25] The trial judge could refer the matter to those alternative forums (with the possibility of appeal if the matter was not dealt with satisfactorily).
[26] Law Reform Commission of Canada, Evidence Study Paper No 5, Compellability of the Accused and the Admissibility of his Statements, Ottawa, 1973.
[27] See above para 468-72. The proposal is similar in terms and substance to the proposal in ALRC 22, para 1170.
[28] [1978] HCA 22; (1978) 141 CLR 54, 74.
[29] id, 80.
[30] With respect to protection of an individual’s human rights, on the other hand, it does not necessarily follow that there will be in all cases a correlation between the degree of departure by the police from legal requirements or other standards, and the degree of infringement of the particular suspect’s human rights.
[31] McPherson v HM Advocate [1972] SLT 71, 72.
[32] Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54, 79 (Stephen and Aickin JJ); McGovern v HM Advocate [1950] SLT 133.
[33] R v Ireland [1970] HCA 21; (1970) 126 CLR 321, 334 (Barwick CJ), Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54, 80.
[34] id, 74-5. See also Seymour v Attorney General for the Commonwealth, unreported, Federal Court (NSW) 8 No 221 of 1983, 23.
[35] See para 382-4, 967; Appendix C, para 145. 149.
[36] [1978] HCA 22; (1978) 141 CLR 54, 79.
[37] ibid.
[38] ALRC 2, para 298.
[39] See above, para 765-6.
[40] See, eg, Inspector WD Crowley, ‘The Interrogation of Suspects’ (1969) 23 Aust Police J 126, 132-5.
[41] See, eg, R v Sharp (1983) 33 SASR 366, 376.
[42] JD Grano, ‘Voluntariness, Free Will and the Law of Confessions’ (1979) 65 Virginia L Rev 859, 917.
[43] See para 382-4; Appendix C, para 145-9.
[44] The question on appeal is whether the discretion was reasonably exercised, taking into account all relevant factors and ignoring irrelevant ones: House v R (1936) 55 CLR 499, 504-5; R Pattenden, The Judge, Discretion and the Criminal Trial, Clarendon Press, Oxford, 1982, 33-4.
969. Rationale. In broad terms,[1] a court takes judicial notice when it acts upon its own knowledge acquired otherwise than from evidence adduced by the parties. Two major reasons have been advanced to justify the taking of judicial notice. Wigmore regarded judicial notice as a time-saving device to eliminate the necessity of formal proof where dispute is unlikely.[2] Professor Morgan’s view was that its primary role was to prevent a party from inducing a false result by disputing what is demonstrably indisputable amongst reasonable men.[3] Both considerations are important and they and other matters of policy must be considered.
• Credibility of the Trial System. It is of great importance for the credibility of the trial system that courts should make consistent findings in areas of common knowledge and experience and in areas of science and history and the like which have been the subject of investigation in the community and are not reasonably open to dispute.[4] For the same reason it may be argued that courts should be permitted to receive and act upon material not formally proved in accordance with the rules of evidence and not supplied by the parties but which is not reasonably open to dispute. In addition, where a court undertakes the task of defining and developing the common law or determining the constitutional validity of legislation,[5] it can be argued that the court should not be limited solely to the material supplied by the parties. The decision of the court in such areas is one which will affect the community generally. It should at least be able to refer to information in sources of authority on matters of history and science and other matters and to act upon such information which is not reasonably open to dispute.
• Time and Cost. Permitting courts to inform themselves informally can save time and costs. For example it would save time and cost to be able to refer to generally accepted sources for information on matters such as the time of sunset and sunrise in a particular place, gestation periods and like information.[6] Permitting courts to do so in areas of general knowledge can also save time in that it is often difficult to prove such matters formally.[7] At a more fundamental level, however, the processes of judicial notice can be justified on the basis that the trial system could not function without it. At every stage of proceedings, the judge and jury must use their knowledge of matters of common knowledge. If this were not done, the trial process could not function without enormous delay and expense.
Any proposal to widen the scope of judicial notice, however, raises other issues:
• Fair Trial. Any attempt to extend the present scope of judicial notice raises the important issue of procedural fairness. If, for example, judges are allowed to inform themselves in the areas of science and history by reference to encyclopaedias and reputable texts, the issue arises of what procedural safeguards are needed for the parties. Should they be able to make submissions on whether the research should be carried out and to have the right to put forward materials and challenge materials used by the judge? Any such safeguards could add to the time and cost of trials. These factors must be weighed.[8] The critical distinction to be made, however, is between matters reasonably open to dispute, which should be the subject of formal evidence and cross-examination, and matters not reasonably open to dispute upon which the courts may act without formal proof.
• Predictability. Another issue to be considered is the extent to which any extension of the right to act on materials not formally produced to the court would introduce unpredictability into the trial system. It must be remembered, however, that where the proposals are an alternative method for establishing facts, the parties will remain free to prove them formally. It would also be open to parties to protect themselves under the proposal by supplying materials to the other parties. Any potential for unpredictability must be compared with the considerable degree of unpredictability that exists at present because parties waive the rules but can insist on their application without warning.
970. Introduction. The policy arguments warrant the adoption of proposals for those areas where judicial notice has been taken under the common law and legislation—the law; matters of common knowledge in the locality where the trial is being held; matters not reasonably open to dispute. The deficiencies in the existing law must, however, be met.[9]
971. Terminology. The expression ‘judicial notice’ has not been used in the provisions. While it is a widely used expression, it is used in different ways and is misleading in that the process it describes is used by the jury as well as the judge. In addition, it is used to describe the different processes by which the judge (and the jury as to matters of fact) acquire information about a proposition of law or fact without formal proof.[10] It is also used to describe a determination made by a judge without formal proof. Further, in legislation it has been used in other ways—for example, treating certain evidence as prima facie evidence.
972. The term ‘knowledge’ is used in the proposals in its generally accepted sense of that which is certain and is to be distinguished from beliefs and opinions. Strictly the requirement in the proposal that it not be ‘reasonably open to dispute’ is superfluous. The requirement is included, however, in part to reinforce the desired interpretation of ‘knowledge’. The view is taken that it is incorrect to speak of facts or matters of common knowledge—a formula sometimes used—although one can speak of knowledge of facts. It is also thought to be inaccurate to speak of the court using ‘facts or matters’. The court is using its knowledge of such facts or matters.
973. Judicial Notice of ‘The Law’. The proposal assumes a judge’s obligation to take the law into account and apply it. The proposal is limited to a provision that proof shall not be required about matters of law—their substance and operation. The proposal reflects existing law but simplifies it. It also covers delegated legislation which parties are required in some jurisdictions to prove. To this extent it modifies existing law.[11] To make the task of the judge easier, the proposal is limited, in the case of delegated legislation, to that published in Government Gazettes. As drafted, it is not necessary to include a provision to facilitate the proof of such Gazettes.[12] The legislation is drafted so that it can co-exist with the State and Territorial Laws and Recognition Act 1901 which applies in State as well as federal and Territory courts. The proposal would co-exist with the constitutional and legislative requirements of giving full faith and credit.[13] Anything not caught by this proposal will be amenable to the other judicial notice proposals.
974. Judicial Notice of Facts—Different Views of Scope. All would agree that the use by the court of common knowledge (with or without the use of research) for the purpose of finding a fact in issue or fact relevant to a fact in issue—be it normal gestation periods, that Flemington is a racecourse etc—involves the taking of judicial notice. There are different views, however, as to whether the process involves or should involve the use of the tribunal’s knowledge for other purposes.
• A Narrow Approach. Most of the reported cases relevant to the topic are concerned with the narrow issue of whether a party’s case should or should not have failed because it did not formally lead evidence to establish a fact which it had to prove. As a result, the taking of judicial notice has generally been considered in relation to the proof of factual elements of a party’s case. There has been little judicial discussion of the boundaries of judicial notice. It has been argued, however, that judicial notice should be confined to the use of common knowledge to establish facts which are steps in the proof of a party’s case. This, for example, should be distinguished from the use of knowledge in assessing ‘the probabilities’. There, it is argued, the judge or juror is entitled to (and cannot avoid) drawing on his personal experience but that in doing so he is not taking judicial notice.[14] Other areas where it has been said to be appropriate for the judge or juror to rely on personal experience without taking judicial notice are:
― Ultimate issue. It has been held, for example that the trial judge may decide whether an interest rate charged was excessive without any evidence being given[15]—although some statements are consistent with the view that it is common knowledge of general rates of interest that is applied.[16]
― Interpreting, Weighing and Assessing Evidence. In Burns v Lipman[17] Chief Justice Barwick, and Justices Stephen, Mason and Jacobs stated:
In explaining his reasons for judgment, his Honour said that he could take judicial notice of the habits of motorists in relation to the sounding of the horn when passing or commencing to pass another vehicle. We would point out that, whilst a juryman or a judge may bring to the resolution of a case his knowledge of what usually occurs on a highway, that knowledge is not properly to be regarded as judicial notice.[18]
In Wetherall v Harrison[19] a distinction was drawn between a magistrate using his personal medical expertise to assess, interpret and weigh the evidence on the one hand and substituting it for evidence on the other. The former was held to be permissible and the latter not. Carter[20] and Eggleston[21] argue that the use of the medical expertise in assessing, weighing, and interpreting the evidence is not an aspect of judicial notice. The Divisional Court clearly took the view that the medical knowledge could not be substituted for evidence but did not analyse the question in terms of judicial notice. In any event the distinction made is thought to be illusory.[22]
Under this approach judicial notice is regarded as a form of proof or substitute for proof.[23] But this is true only in a broad sense; in many cases no material on which to found notice is placed before the court.[24] Many facts are ‘noticed’ without reference being made to the occurrence:
Judicial notice of matters of fact is founded upon that fund of knowledge and experience which is common to both judges and jurors, and is not confined to the Bench. In many cases no reference is made during the trial to this aspect of judicial notice; if the fact is relevant, everyone in court will assume that rain falls, for example; and there is no ascertainable limit to the matters which are thus silently noticed by both judge and jury.[25]
A broader view has been followed in the United States of America.[26]
• Wide View. Where judge and jury apply their general knowledge and reasoning, Davis argues that the boundaries of judicial notice are congruent with judicial reasoning:
When the judge reads a pleading or listens to a witness testify, he cannot know the meaning of the words except through extra-record information and, apart from the meaning of words, he cannot understand the significance of the ideas expressed unless he uses his general background of knowledge—knowledge that cannot conceivably be captured and penned up within the pages of a formal record. For instance, in an automobile accident case, the judge constantly draws on his experience as a driver, as an observer of traffic, as a live human being.[27]
The judge and jury rely extensively upon their general knowledge and experience in making their findings on the facts. In addition the judge applies his general knowledge and experience whenever a decision has to be made about the relevance of evidence:
In the ordinary course of reasoning, whether a fact is capable of being inferred from the existence of given facts, depends upon what has been or is taken to be the human experience as to the relationship which exists between those facts ... The courts have, of course, accepted that it is possible to reason in this way from given facts to human behaviour and from human behaviour to what the facts were ... in the normal case, the judgments of commonsense or common experience are what is relied upon.[28]
Similar processes occur in determining the admissibility of evidence—for example, whether the features relied upon to justify the admissibility of the evidence of prior misconduct are unique as alleged. In determining damages awards, the judge or jury must act upon knowledge and experience. In weighing up the probative value of evidence against its prejudicial effect, the trial judge acts upon his assumptions about human behaviour and the likely effect of evidence on the mind of a juror. While judicial notice may be used to enable the court to make findings on the facts without evidence being tendered in the normal way, the matters of which notice is taken frequently have no bearing on the matters that are in issue in the trial. Courts use material not formally proved in a wide variety of situations—in the interpretation[29] of pleadings and other writings, in defining words and in the interpretation of conduct.
Courts take facts into account without proof not only in the process of making findings about the facts that are in issue but also in the process of formulating and developing the common law. Take, for example, the following statement which was critical to the majority’s formulation of legal principle in Grant v Downs:[30]
These difficulties are magnified in cases when privilege is claimed by a corporation, whether it be a statutory authority or a company, because the corporation conducts its business through servants, brings into existence voluminous records and institutes systematic standing procedures calling for the preparation of reports and other documents which may serve a variety of purposes, included in which is the submission of documents to a solicitor for the purpose of obtaining legal advice, or for use in existing or anticipated litigation. With the advent of large corporations, documents necessarily proliferate; the knowledge of servants of the corporation is, in legal theory, the knowledge of the corporation itself but will only become so in fact when communicated to that corporation. It is in the course of converting legal theory into fact that corporations require their servants to furnish to management reports of activities known only, in the first instance, to the servants. Hence the proliferation of documents.
Reference should also be made to the factual analyses and materials referred to by the members of the High Court in Alexander v R[31] in determining the rules to be applied to the admissibility of photo-identification evidence, and Todorovic v Waller[32] in determining an appropriate discount rate for lump-sum damages awards. In determining the constitutional validity of legislation the courts take into account factual material that has not been formally proved.[33]
975. Should Boundaries be Set? While the distinctions required by the narrow approach can be stated, they are extremely difficult to apply and it is questioned whether they have any sound basis. How is the line to be drawn, for example, between taking judicial notice of facts relevant to facts in issue and drawing inferences from evidence formally proved? A proposal relating only to facts in issue could be drafted, but courts presently take judicial notice of facts relevant to facts in issue and facts relevant to procedural and other issues. The processes are essentially the same no matter how close or remote the knowledge is to the facts in issue. In all the cases mentioned and in all situations the personal knowledge of the judge or juror is being applied. In some cases it is knowledge shared with the community generally, in other cases it is shared with the members of a group in the community. In all cases the facts and matters asserted are regarded by the judge or juror as beyond dispute. The distinctions are unrealistic and artificial.
976. It is necessary to adopt the narrow approach only if it is thought desirable to allow the judge and juror to use personal knowledge which is open to reasonable dispute to, for example, assess evidence or the probabilities. While it may be difficult to prevent, they should not, however, rely on facts and matters which they believe are reasonably disputable and have not been the subject of formal proof and testing by the parties. The distinctions have been encouraged because the reported cases generally concern the use of judicial notice to plug a gap in a party’s proof and existing legislation, similarly, is concerned with facilitating the proof of particular facts. In terms of principle and logic, however, it is difficult to argue for the narrow view.
977. Judicial Notice of Facts—The Proposal. It is proposed, therefore, to follow the wider approach. To achieve this, the proposal is expressed in terms of what is to be used as compared to what may not be used. The former is not an exhaustive approach whereas the latter must be. The legislation provides that proof is not required of knowledge that is not reasonably open to dispute and is common knowledge or is capable of verification by accurate sources. Points requiring special mention are:
• Mandatory and Discretionary Elements. At common law there is authority that judicial notice must be taken of common knowledge. The common law, however, is not clear.[34] The legislation differs in approach. Sometimes it is mandatory, sometimes it is discretionary. The proposals treat the process of informally obtaining information as discretionary. The obligation to take into account knowledge of the prescribed types is expressed in mandatory language. The Commission’s view is that this approach accords with the justifications advanced for the practice of taking judicial notice and is consistent with a proper analysis of existing law.[35]
• The Judge Informing Himself. Under the proposal judges can inform themselves about common knowledge and about knowledge capable of verification from authoritative documentary sources. As to the former category, there should be no real danger for the parties—the judge must be satisfied that the knowledge is common knowledge. This is the present law and there is no evidence that there are dangers for the parties under it. As to the latter category, there are dangers. Consideration was given to a proposal that parties be advised and given the right to be heard about the use of the judge’s personal knowledge not reasonably open to dispute (however acquired) and to submit materials. This was shown to be unworkable. Such safeguards are not, in any event, necessary. If the issue arises during the hearing it will no doubt be considered. When a judge takes judicial notice of a fact outside the hearing, there are at least two safeguards. Ordinarily no judge will take judicial notice of a fact unless he is confident that the fact is not reasonably disputable and that it is unlikely the parties will want to dispute it. Further, if he is wrong in taking judicial notice of it, and the fact is significant to the issues, it is very likely that his judgment will not survive an appeal. These factors appear at present to provide sufficient protection provided the category is limited to knowledge that may be verified by reference to authoritative documentary sources. It is also proposed that where the judge makes his own enquiries to acquire either category of knowledge he should inform the parties where there is a risk of unfair prejudice. As at present, the judge may rely on other cases[36] and on information the subject of formal evidence.[37] It is not proposed to authorise the jury to conduct its own enquiries.[38] There would be problems in that the parties could not be informed of the views of the jurors. There is also no evidence that there is a need to permit juries to embark on their own research.
• Scope. It was decided not to limit the proposals to particular areas of knowledge—for example, the arts and sciences, international affairs, foreign law,[39] custom and usage, acts of state, votes and proceedings of legislatures and regulations and by-laws (not dealt with by the proposal dealing with the law). It would not be possible to devise a satisfactory exhaustive list.
• Right to Tender Evidence. The proposals are not intended to prevent parties leading formal evidence. That option will remain—subject in particular to the relevance discretion.[40]
• Direction to Jury. There is little authority about the judge’s duty in directing the jury concerning judicial notice. Cross gives no authority for his proposition[41] that the court will find that the fact exists, ‘or direct the jury to do so’. If the law (in the particular case) is that the court must take into account the given type of knowledge, presumably there is no difficulty. It would be the judge’s duty, in appropriate cases to direct the jury that they are obliged to do so if they regard it as material. That would apply in a civil or a criminal trial. However, if the law was that the court may take account of the given type of knowledge, then it should be for the judge to direct the jury that it is open to them to do so, without evidence being necessary, but it is a matter for them whether they regard such fact as material and act upon it without evidence. Whatever approach is taken, it is not necessary to enact any provision as to how the judge shall instruct the jury respecting judicial notice. Whether he should or should not will depend on the circumstances of the case. These directions would be additional to the usual instruction to the jury that, in assessing the issues before them, they are entitled to and should use their experience and judgment.
• Limits. The proposal may have the effect of limiting the material presently relied upon by the courts in constitutional cases.[42] The existing situation, however, of the parties having no right or real opportunity to meet or challenge material relied on in constitutional cases is unsatisfactory. To deal completely with the problems, it is proposed that a provision be included that is found in legislation in a number of jurisdictions authorising the courts to give directions dispensing with the rules of evidence in civil trials.[43]
• Conclusiveness. There has been a debate of long standing in American jurisprudence about whether parties may or should be able to dispute facts found on taking judicial notice. American courts have judicially noticed disputable facts in cases such as constitutional law cases. The issue of whether the fact noticed may be disputed does not appear to have arisen in Australian and English cases. The reason would appear to be the requirements that the proposition of fact be accepted within the relevant community and that the judge be satisfied as to the truth of the proposition of fact. In addition it will rarely happen that the patties will be aware before judgment or verdict that the court proposes to accept a fact judicially noticed. It has been argued, however, that:
If the processes of taking judicial notice and receiving evidence of a fact are essentially different, no evidence should be admissible in rebuttal of a fact which is judicially noticed.[44]
It is not clear why this should necessarily follow.[45] From a practical point of view, the taking of judicial notice by the fact-finding tribunal will be final, subject to any right of appeal against the propriety of taking judicial notice and any error made. It is difficult to follow, however, why prior to the determination by the fact-finding tribunal, all parties are not at liberty to tender relevant formal evidence and other material, whether the area is one where judicial notice should be taken of a proposition of fact or not. It is suggested that the better view is that parties may generally lead formal evidence relevant to facts of which judicial notice may be taken except in those areas where there is authority that the information acquired is conclusive—for example certificates from an appropriate Minister in areas of executive responsibility. In the vast majority of cases the issue will never arise because the tribunal of fact will be applying the knowledge it shares with the rest of the community. Where an issue does arise, however, as to the taking of judicial notice of a specific fact, it must be possible for the parties to place whatever material they think fit before the tribunal of fact on the issues of whether the proposition is one of which judicial notice should be taken and what precise proposition should be accepted. There would seem to be no reason in principle why this could not be done by producing formal evidence.
• Crown Certificates. No proposals are advanced as to the conclusiveness of certificates supplied by the Crown in matters of international affairs. It appears inappropriate in a reference on the law of evidence to undertake the examination of these matters. The authorities do not supply a conceptual basis upon which to put forward proposals. To develop such a framework the following must be considered—the rules and principles of international law; the nature and extent of the Crown’s prerogative power in international affairs and the relationship between the judiciary and executive; the limitations of our federal system. At issue is the extent of the powers of the courts, and in particular the High Court, to review legislation and executive actions, and the relationship between the High Court and the executive. The issues should be considered, if at all, in the context of a reference on international law and constitutional law not a reference on evidence law.[46]
978. Some specific issues should be mentioned:
• ‘Locality’. The proposal permits the use of what is common knowledge in the locality in which the court is sitting. Concern has been expressed that the reference to ‘locality’ would lead to reliance upon local prejudices—be it about ‘dole-bludgers’ or the behaviour of members of an ethnic group. Two suggestions have been made in submission to the Commission—adding the requirement that the knowledge not be the subject of reasonable dispute; substituting ‘State or Territory’ for locality’. The former is recommended. To refer to ‘State or Territory’ would prevent local knowledge being used.
• Operation of Existing Law. The proposal would not enable the use of the Commonwealth CPI statistics—assuming they are open to reasonable dispute. Such information can be relied upon in the Family Court under existing legislation. It is intended to preserve such existing special legislation so that the Family Court provision would continue to operate. The proposal is intended to be of general application and it is thought that, in principle, matters that are open to dispute should be dealt with by formal evidence.
• Predictability. Consideration was given to including a provision specifying the weight to be given to information set out in documents such as government gazettes and documents printed by authority of governments. This approach is taken in much of the legislation. It has the merit that parties who need to prove a proclamation, for example, know they can float their case by producing a document of the prescribed type.[47] It may be argued, however, that if judges are given the power to inform themselves by reference to such documents, then parties should still be able to prepare the cases with reasonable confidence. There should be considerable pressure upon judges to be sensible about relying upon sources of information such as government gazettes. In most cases parties should be able to assess in advance whether something is reasonably open to dispute. To minimise difficulties, however, provisions are included in the legislation to facilitate the authenticating of official signatures and documents.[48]
[1] For the various ways in which the term is used—see Appendix C, para 262.
[2] JH Wigmore, A Treatise on the Anglo-American System of Evidence, 3rd edn, Little, Brown & Co, Boston, 1940, para 2583; see also JB Thayer, A Preliminary Treatise on Evidence of the Common Law, Little, Brown & Co, Boston, 1898 (Reprinted 1969 by Rothman Reprints, New Jersey).
[3] EM Morgan, Some Problems of Proof under the Anglo-American System of Litigation, Columbia University Press, New York, 1956, 43; EM Morgan, ‘Judicial Notice’ (1943-4) 57 Harvard L Rev 269, 273.
[4] cf, AJ Keeffe, WB Landis & RB Shaad, ‘Sense and Nonsense About Judicial Notice’ (1949-50) 2 Standard L Rev 664, 665; PB Carter, ‘Judical Notice: Related and Unrelated Matters’ in E Campbell & L Waller (ed) Well and Truly Tried, Law Book Co, Sydney, 1982, 88.
[5] Commonwealth v New South Wales (1923) 32 CLR 200; Australian Communist Party v The Commonwealth (1951) 83 CLR 222; Hughes and Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127, 165; Western Australia v The Commonwealth [1975] HCA 46; (1975) 134 CLR 201, 283; PH Lane, The Australian Federal System, 2nd edn, Law Book Co, Sydney, 1979, 109.
[6] See Appendix C, para 268-9.
[7] Neasey J, Submission (5 January 1983); Australian Communist Party v The Commonwealth [1951] HCA 5; (1951) 83 CLR 1, 256.
[8] See KC Davis, ‘A System of Judicial Notice Based on Fairness and Convenience’ [1969] Perspectives of Law, 69, 93-5.
[9] See above, para 476-87.
[10] These include the use of general knowledge and reasoning, independent search by the judge and reliance on matters informally brought to the judge’s attention.
[11] See Appendix C, para 265.
[12] Note, there is such a provision. It is needed for other provisions. See Appendix C, para 266.
[13] Commonwealth Of Australia Constitution Act 1900 s 118; State and Territorial Laws and Records Recognition Act 1901 (Cth) s 18.
[14] R Eggleston, Evidence, Proof and Probability, 2nd edn, Weidenfeld & Nicolson, London, 1983, 143-4.
[15] Wilson v Moss [1909] HCA 7; (1909) 8 CLR 146; Samuel v Newbold [1906] UKLawRpAC 28; [1906] A C 461.
[16] id, 167.
[17] [1975] HCA 2; (1975) 132 CLR 157, 161.
[18] The High Court went on to say:
Its use in this case was not appropriate to the determination of whether or not the appellant was negligent, but rather to the question of what the respondent was entitled in circumstances to expect of an overtaking motorist. The respondent could not use the absence of a warning as a justification for not having looked to his rear and for not signalling before making his turn to the right.
[20] Carter in Campbell & Waller, 96.
[21] Eggleston, 144-5, 148-9.
[22] It is arguable, also, that the magistrate in that case was using the knowledge in substitution for the evidence – assuming the onus was on the accused to establish reasonable cause for not submitting to a blood test.
[23] GD Nokes, ‘The Limits of Judicial Notice’ (1958) 74 LQ Rev 59, 63 (cf JF Stephen, A Digest of Evidence, Macmillan, London, 2nd edn & 3rd edn, ch VII).
[24] id, 63.
[25] id, 66.
[26] id, 60.
[27] Davis, 73; Nokes, 60; J.4 Gobbo; D Byrne & JD Heydon, Cross on Evidence, 2nd Aust edn, Butterworths, Sydney, 1979, para 7.21.
[28] Jones v Sutherland Shire Council [1979] 2 NSWLR 206, 222, 224-5 (Mahoney JA); see also comments in Cross, para 7.21; Morgan, 66-7.
[29] JB Weinstein & MA Berger, Weinstein’s Evidence, Matthew Bender, New York, 1982, vol 1, para 200[02], 200[03].
[30] [1976] HCA 63; (1977) 51 ALJR 198,203.
[31] [1981] HCA 17; (1981) 55 ALJR 355; eg, Australian Law Reform Commission, Report No 2, Criminal Investigation, AGPS, Canberra, 1975; Departmental Committee on Evidence of Identification in Criminal Cases, Great Britain, Report to the Secretary of State for the Home Department, HMSO, London, 1976 (Chairman: Lord Devlin). Consider also the factual assumptions made by the High Court in Bunning v Cross [1978] HCA 22; (1977) 141 CLR 54.
[32] [1981] HCA 72; (1981) 56 ALJR 59.
[33] See Appendix C, para 271.
[34] See Appendix C, para 272.
[35] See Carter, 89-90. See Appendix C, para 272.
[36] National Trustees Executors & Agency Co of Australia Ltd v Attorney-General for Victoria [1973] VicRp 59; [1973] VR 610.
[37] McQuaker v Goddard [1940] 1 KB 687.
[38] The issues related to the proper scope of the view are canvassed below. See also Kozul v R (1981)55 ALJR 377, 380-1; R v Tsingopoulos [1964] VR 627-57.
[39] eg, the operation of copyright law in England by examination of a copy of the London Gazette; cf Walt Disney Productions v H John Edwards Publishing Co (1954) 55 SR (NSW) 162.
[40] See para 640-3.
[41] Cross on Evidence, para 7.2.
[42] See Appendix C, para 271.
[43] See below, para 1025-6.
[44] Cross on Evidence, para 7.16.
[45] The view is espoused by EM Morgan in ‘Judicial Notice’ (1944) 57 Harvard L Rev, 269, and Some Problems of Proof (1956) 52 and disputed by Davis, 76.
[46] Carter, 92, argues that the process differs from judicial notice in its ‘nature’ and its ‘rationale’. The Commission has considered the issue in the reference on Foreign State Immunity. For the purpose of the legislation proposed in that reference, a statutory provision is included. Australian Law Reform Commission, Report No 24, Foreign State Immunity, AGPS, Canberra, para 68.
[47] See Appendix C, para 266.
[48] See para 993 and cl 122-4.
979. Rationale. It is difficult to find an analysis by Australian or English writers of the basis upon which evidence authenticating or identifying proferred evidence is required. Cross comments that real evidence is ‘of little value’ unless it is identified ‘as the object the qualities of which are in issue or relevant to the issue’.[1] The cases discuss the law as if it consists of a collection of special rules.[2] In American writing the usual analysis appears to be that authentication and identification evidence is required to establish the relevance of the object, document or output of the device or system tendered. Weinstein comments:[3]
Authentication and identification of evidence are merely aspects of relevancy which are a necessary condition precedent to admissibility. Michael and Adler wrote:In absence of such a showing of authenticity or connection the evidence is simply irrelevant.[5]We shall call this condition ‘the logical condition’ of the admissibility of real proof. As we shall see, the satisfaction of this condition depends upon the identification of the offered thing or event with one of the litigants in some way ...[4]
The law is treated as an aspect of ‘conditional relevance’.[6]
980. Wigmore adverted to the issue briefly, commenting that, in relation to real evidence, ‘the necessity of authentication rests’ on ‘inherent logical necessity’.[7] He argued that for similar reasons a letter alleged to be written by ‘Doe’ (where the fact is relevant) is not admissible without evidence that the writing tendered was written by ‘Doe’.[8] Wigmore, however, argued the need to refuse to admit objects and documents in evidence without evidence ‘authenticating’ them on the grounds that
• production of an object can have the unconscious effect of causing the tribunal to accept other aspects of the party’s case;[9] and
• in the case of documents, there are added dangers in that the document purports to indicate its authorship and the perception that this element is nevertheless missing and must still be supplied, is likely not to occur. There is a natural tendency to forget it. Thus it has to be constantly emphasised by the judicial requirement of evidence to that effect. Further, the writing tends to be produced whereas the object does not. So there is a greater opportunity for the tribunal to be influenced by documents.[10]
Other grounds advanced for maintaining special rules are that the relaxation of the law may ‘open the gates to potential fraud’[11] and it is possible that a mistake may be made in attributing a letter purporting to be written by ‘John Smith’ to the wrong John Smith.[12]
981. The issues raised are dangers to accurate fact-finding and unfairness to parties because, in the absence of evidence of authorship of the writing, identity of the object or accuracy of the instrument the tribunal may place undue weight on the evidence, be misled or be deceived. The dangers, however, will vary with the nature of the subject offered in evidence:
• Writings. In everyday life we accept letters and the like at face value—we assume their authenticity.[13] It may be argued that most writings introduced in evidence are not fraudulent. Further, in the case of writings purporting to originate from a party, the probability that they do is high.[14] The risks are likely to arise in the minority of cases.
• Objects. With objects, it is unlikely that the tribunal will make a connection between them and the case without some connecting evidence. The possibility for fraud would be similar to that with writings—but it would take the form of direct perjury on the part of the witness giving the identifying evidence.
• Tapes. There is scope for tampering with tapes and, at times, a temptation to do so. This would arise, however, because, paradoxically, they contain within them strong self-authenticating evidence—the tribunal can hear witnesses and their voices. Allegations of tampering, however, are rarely made.[15]
• Scientific and Technical Instruments. It is suggested that the concern here should be more about confusion and wasting the time of the tribunal than fraud. The temptation to tamper with the instrument will vary depending upon the extent to which the persons using it etc, are connected to the parties or the case.
Against these minimal dangers, the existing law requires a party to make sure that it is possible to authenticate the evidence whether it is in dispute or not. This can impose significant cost burdens and cause great inconvenience.[16]
982. Special Rules or an Aspect of Relevance? The issue that arises is whether to control the admissibility of the evidence to be authenticated by application of the relevance proposals, or whether to do so by imposing special conditions of admissibility. The former approach has been taken in the US Federal Rules and in the Canadian proposals.[17] This approach is sound in principle. Under it, the dangers identified above can be addressed by the application of the relevance discretion.[18] The probative value of the tape recording, for example, will depend upon whether and to what extent evidence is adduced about the making of the recording, the identification of the voices, and the identity of the tape with that used in the recording. If no evidence is adduced, the court could say that it is not possible to make a prima facie finding as to its authenticity and that, it should be excluded. If enough evidence is led for the judge to say that it would be open to the jury to find that the tape is authentic, assuming the supporting evidence is accepted, it would still be open to him to refuse to admit the evidence of the tape because its probative value (which depends upon the supporting evidence) is outweighed by the risk of prejudice, confusion, misleading the court and time wasting. It should be noted, however, that Professor Saltzburg has voiced concern about the implications of this liberal approach. He refers to examples such as establishing the chain of custody of the narcotics in a drug possession case and the authentication of recordings. At common law, stringent requirements were laid down which had to be satisfied before the proferred evidence was admitted. The liberal approach of the Federal Rules removes the rigid requirements but gives no guidance. Professor Saltzburg also questions whether some authentication cases should be treated as requiring preliminary fact-finding by the judge.[19]
983. Proposal. The conditional relevance approach is, however, a flexible one. It is the approach presently taken with writings and, arguably, tape recordings and scientific instruments.[20] It is proposed that the topic be dealt with as an aspect of conditional relevance and that the legislation include a provision which will have the effect that where the relevance of evidence depends upon the court making some other finding the judge may admit such evidence if satisfied that it would be open to a reasonably jury to find that the evidence is what its proponent claims it to be.
984. The alternative would be to advance proposals for particular categories of evidence such as tape recordings, scientific instruments and computers. Such proposals, however, could never completely and adequately deal with the issues. They would also have to be couched in very broad terms to avoid the fate of legislation such as the computer legislation—it is too detailed and restricted to facilitate the authentication of computer output. If, however, there is concern about tape recordings an alternative to consider would be the Alaskan modification of the US Federal Rules.
(1) Whenever the prosecution in a criminal trial offers (A) real evidence which is of such a nature as not to be readily identifiable, or as to be susceptible to adulteration, contamination, modification, tampering, or other changes in form attributable to accident, carelessness, error or fraud, or (B) testimony describing real evidence of the type set forth in (A) if the information on which the description is based was acquired while the evidence was in the custody or control of the prosecution, the prosecution must first demonstrate as a matter of reasonable certainty that the evidence is at the time of trial or was at the time it was observed properly identified and free of the possible taints identified by this paragraph.[21]
985. Self-Authentication. There is a strong case for liberalizing the law by permitting the courts to take the content of the proferred evidence into account together with the surrounding circumstances in determining its authenticity. This is particularly so in relation to writings.[22] ‘The existing standard of authentication creates only a slight obstacle to the witting or unwitting presentation of forged writings.[23] The present ‘agnostic’ approach imposes unnecessary and considerable cost burdens. Further, authentication difficulties usually arise where the writing did not originate with the party tendering it and the opposing party has the knowledge as to its origins.[24] As to objects, self-authentication or identification is not likely to be possible. Proposals are included which permit inferences to be drawn from a document in determining its authenticity.[25] In this way the proposals recognise the reality that most documents produced in court are authentic.
986. It is to be expected that parties will continue to authenticate key documents with extrinsic evidence. Tactical pressures will cause this. Nevertheless, relaxation of the authentication rules requires the provision of safeguards for the party against whom the document is led. The proposal gives a party the right to request on reasonable grounds the calling of persons involved in the making of the document and the production of related documents. If the request is not complied with and there is no reasonable cause, the court may give directions to secure compliance, make costs orders or refuse to admit the evidence.
987. Comparison of Disputed Writing. The problems of the existing law[26] are avoided under the proposals. The content of the disputed writing may be established by producing the writing or giving secondary evidence of it. A lay or expert witness may compare the writing subject to the proposals on opinion evidence.[27]
988. Machine Produced Evidence. To assist people in the application of the general provision and to avoid repetition of confusion and error, clauses are included which deal with machine-produced evidence. It is proposed that where it is reasonably open to find that a ‘device or process’[28] is of a kind that, properly used, does what is claimed for it, the court shall find the particular device did what the party claimed it did on the occasion in question unless satisfied to the contrary. This will normally take the form of evidence as to general reliability and trustworthiness. This proposal removes doubts[29] about the circumstances in which a presumption of working accuracy of a device on the occasion in question will arise. In relation to machine produced evidence it resolves uncertainty by making it clear that evidence as to the working accuracy of the particular device is not required. The proposal will apply to evidence in the form of tape recordings. It will override recent restrictive statements that evidence is required of the ‘efficiency’ or ‘competency’ and ‘capacity’ of the equipment[30] and older statements, never complied with, that the recording be shown to be accurate.[31] The proposal is aided by the wider powers given under the judicial notice proposals.[32] The question for the judge will be whether it is reasonably open to find that the requirements are satisfied. The provision will operate both when admission of the evidence is sought and at the conclusion of the proceedings; a presumption of working accuracy arises.[33]
989. Business Records. Under existing Commonwealth business records legislation[34] the attempt is made to secure the admissibility of ‘statements’ reproducing or derived from information from ‘devices’ without evidence as to their working accuracy, provided that the court is satisfied, on the balance of probabilities, that the devices are used for the purposes of the business. Various safeguards are introduced. This approach needs to be retained. If it were not, the usefulness of the proposed business records provisions in the legislation for modern business records would be severely limited. It is appropriate that it be assumed in the absence of contrary evidence that the devices relied upon in a business are trustworthy. It is proposed, however, that the matter be dealt with separately. Treating the issue as an aspect of relevance, it is appropriate to introduce a business records exception to any requirement of authentication.
990. Voir Dire. There is some uncertainty under existing law about when a voir dire should be held to determine the admissibility of evidence.[35] Proposals are discussed below.[36]
991. Ancillary Provisions. Provision is made for authenticating evidence to be given by affidavit. Under these provisions the deponent must hold a responsible position in relation to the evidence to be authenticated and can be required to attend for cross-examination. The affidavit may be based on information or belief. Otherwise, oral evidence satisfying the rules of admissibility is required.
992. Safeguards. The relaxing of the rules relating to the authentication and identification of evidence could place the party against whom it is led at a disadvantage. The authenticating of computer business records, for example, does not require evidence about the computer system. The legislation addresses the need for safeguards by modernising the law of discovery and providing machinery under which a patty may request that documents (broadly defined) be produced or witness be called.[37] The consequences of the failure to comply with the request are placed in the hands of the court.
993. Facilitating Proof. There is a mass of legislation providing special and less stringent methods for authenticating public and other documents. To some extent, the judicial notice proposals have avoided the need for such provisions. To some extent the secondary evidence of document proposals have covered the matter.[38] In addition the State and Territorial Laws and Records Recognition Act (which must remain in operation for State Courts in any event) facilitate the proof of many types of documents. It is necessary, however, to include a number of provisions to ensure the availability of methods of proof available in many jurisdictions. These include provisions facilitating proof of
• Gazettes and documents published by the Government Printer;
• the validity of acts notified in such documents;
• seals and signatures;
• copies of public documents;
• the origins and ownership of objects and things as stated in tags and labels attached to them;
• the receipt of mail and the receipt and transmission of telecommunications;[39]
• the publication of statistics by Bureaus of Statistics or the Australian Statistician.
It is also proposed to retain the existing law that a 20 year old document produced from proper custody be presumed to be authentic. It has also been necessary to preserve dispensations in existing legislation relating to documents signed by attesting witnesses.
[1] JA Gobbo, D Byrne & JD Heydon, Cross on Evidence, 2nd Aust edn, Butterworths, Sydney, 1979, para 1.18. Cross refers to the concept in stating that the issue of whether a confession was made by the accused, like the question of whether tape-recordings are genuine, is a question for the jury and that, therefore, the question for the judge is whether there is a prima facie case (id, para 3.10). Compare Ladlow v Hayes (1983) 8 A Crim R 377, 385.
[2] See Appendix C, para 278.
[3] JB Weinstein & MA Berger, Weinstein’s Evidence, Matthew Bender, New York, 1983, 901-20.
[4] J Michael & MJ Adler, ‘Real Proof: 1’ (1952) 5 Vand L Rev 344, 362.
[5] See EW Cleary (ed) McCormick’s Handbook of the Law of Evidence, 2nd edn, West Publishing Co, St Paul, Minn, 1972, para 185; JW Strong, ‘Liberalising the Authentication of Private Writings’ (1967) 52 Corn L Rev, 284, 285; EM Morgan, Basic Problems of Evidence, 4th edn, Practicing Law Institute, New York, 1963, 378.
[6] See generally Weinstein’s Evidence, para 104[09]. Compare also evidence of the behaviour of animals—eg, bloodhounds: State of New York v Centolella 305 NY Supp 2d 279 (1969); chickens ‘going home to roost’: State v Wagner 222 NW 407 (1928); Judge Talbot Smith, ‘The Hearsay Rule and the Docket Crisis: The Futile Search for Paradise’ (1968) 54 ABAJ 231, 234.
[7] JH Chadboum (ed) Wigmore on Evidence, Little, Brown & Co, Boston, 1978, para 2129. He argued that ‘authentication’ is to be preferred to ‘identification’—eg, the link between the murder weapon and the accused.
[8] ibid. He stated also that unless the connection is made to appear, ‘the whole fails in effect’.
[9] ibid.
[10] Wigmore on Evidence, para 2150.
[11] Strong, 285.
[12] Strong, 286.
[13] Wigmore on Evidence, para 2148; Strong, 285.
[14] Strong, 293-4.
[15] See TB Radley, ‘Recording as Testimony to Truth’ [1954] Crim L Rev 96.
[16] See above, para 491-4.
[17] US Federal Rules of Evidence, r 901 contains detailed examples of authentication. Rule 902 facilitates authentication of public documents, foreign documents (‘purporting’ to be signed or sealed etc., official publications, trade inscriptions). See Law Reform Commission of Canada, Report, Evidence, Information Canada, Ottawa, 1975, 46-7 and Federal/Provincial Task Force of Canada, Report on Uniform Rules of Evidence, Carswell Co, Toronto, 1982, para 29.5, para 30.2. In the case of documents, special provisions were enacted to facilitate authentication—similar to the US Federal Rules.
[18] As under the US Federal rules 8403—Weinstein’s Evidence, para 403[05], 403-48.
[19] SA Saltzburg & KR Redden, Federal Rules of Evidence Manual, 2nd edn, Michie Co, Charlottesville, 1977, 642ff.
[20] See above, para 495 and Appendix C, para 278.
[21] R901(1)—See Weinstein’s Evidence, 901-[126].
[22] For criticisms see above, para 498, 981.
[23] Strong, 290; AL Levin, ‘Authentication and Content of Writings’ (1956) 10 Rutgers L Rev 632, 637; CT McCormick, Handbook of the Law of Evidence, West Publishing Co, St Paul, Minn, 1954, para 185.
[24] Strong, 292-3.
[25] Australian legislation has gone some way towards achieving this reform. See above. Consideration was given to including a proposal that in civil trials a document tendered in evidence be assumed to be authentic in the absence of objection. (cf some State provisions relating to agreements in issue in certain contract disputes—see Appendix C, para 282.) Costs penalties could be imposed for objections. The view taken was that it would be of little assistance as the document will normally be admitted if there is no objection. It could also force more objections than were now made.
[26] See above, para 491-501.
[27] See cl 43, 44; 47-53; 66-69.
[28] This expression will cover computers and their software.
[29] See Appendix C, para 278, 283.
[30] See above, para 494 and Appendix C, para 278.
[31] See above, para 494 and Appendix C, para 278.
[32] See para 970-7.
[33] See also the power in cl 137 to have witnesses called. Consideration was given to not including a presumption and simply providing that that judge may make the finding. It was thought, however, that this was unlikely to have much effect.
[34] See Appendix C, para 282, 284; see argument that the attempt is unsuccessful—above, para 499.
[35] See Appendix C, para 280.
[36] See para 1032-46.
[37] See cl 137, 143.
[38] See para 648-60.
[39] In relation to mail, there is a presumption that it was received at the specified address, within four days of posting. (The same presumption operates in the Family Court). An alternative suggestion is seven days, on the ground that four could cause hardship for the recipient. However, seven days could cause hardship for the sender. The recipient, not the sender, is in the best position to rebut the presumption. Times are not mentioned in respect of telecommunications as they tend to be instantaneous.
994. Credibility of the Trial System. A credible trial system must have a rational and fair basis upon which decisions may be made when the evidence before the court leaves the decision maker in doubt. The present law attempts this with the two standards of proof—generally, balance of probabilities in civil trials and beyond reasonable doubt in criminal trials. To a large extent the law meets the requirement of a rational and fair framework. The standards
• have a measure of objectivity;
• have a degree of flexibility which enables the gravity of issues raised to be considered;[1]
• in the case of the criminal trial standard, recognise the concern to minimise wrongful convictions.
The general approach should not be changed—by, for example, recommending one standard. There are, however, some specific criticisms to be addressed, uncertainties to be removed and simplifications to be achieved in the standard to be applied in civil trials, in the standard to be applied in determining preliminary questions of fact in civil and criminal trials and in relation to the question of to what the standards should be applied. Overall, the proposed legislation helps to remove doubts and provide a more convenient source in which to find the law.
995. Subjective or Objective. If the law requires an actual belief on the part of the court it is imposing a high standard and one in which the subjective elements have too much emphasis. There is a need to make it clear that belief is not required and to resolve uncertainties in the area. An option is to require satisfaction on the balance of probabilities. This would differ from an objective standard only in form and would retain a variable approach. It is suggested that it be adopted rather than the other options. So far as standards objective in form and substance are concerned, the choices are at present unsatisfactory. The options are an approach based on relative frequencies and the Cohen approach based upon the assessment of the inductive support for the parties’ assertion.[2]
996. Where the issue in a case relates to the conduct of the parties (for example, whether the defendant was negligent), an approach based on relative frequencies may lead to unacceptable results. For example, it would allow a plaintiff to argue, on the basis of statistical evidence, that defendants were more often negligent than not, and so the defendant in question was negligent. But such an argument is invalid.[3] In contrast, where the issue in a case is whether the defendant or some other person did the particular act in question, an approach in terms of relative frequencies may be acceptable. It is certainly acceptable in cases where certain characteristics shared by the defendant and the person who is guilty of the conduct in question are compared with the population as a whole to show that the chances of two different persons having those characteristics are extremely low. But, in addition, it is difficult to see why it is not acceptable where the acts in question are known to have been committed by a large number of the class into which the defendant falls and the issue is whether the defendant is one of those persons, as in the rodeo example.[4] Adoption of Cohen’s approach would mean, for example, that even if 999 out of the 1000 spectators in the rodeo example had not paid, the organisers would not be able to recover against any of them. That, in principle, seems to be wrong. These difficulties suggest that no attempt should be made to resolve by legislation the question of which objective approach to probability is correct. In practice, if the requirement of belief is rejected, some of the uncertainty of the existing law would be removed. What uncertainty remains would be better dealt with case by case, in accordance with ordinary principles of reasoning and justice, vague as they may be, rather than by a legislative attempt to resolve what remains a debate among the experts. Until the applicable principles are better understood, legislation is only likely to make the problems worse, not better.
997. Criminal Standard in Civil Trials? A question to be considered is whether any of the existing exceptions where the courts have imposed the criminal standard of proof should be retained. It is suggested that they should not.[5] The policy considerations behind the exceptions could be taken into account in fixing a variable standard. It is difficult to see that they are any more important than those that arise in other cases where the civil standard clearly applies.[6] The law in this area would be made considerably simpler by abolishing the existing exceptions.
998. Civil Trials—Proposal. In a civil trial, if the party is to succeed, the issues of fact on which a party bears the onus of proof must be established to the satisfaction of the court on the balance of probabilities. The court, if so satisfied, shall rule in favour of that party. The two major issues to be resolved are how to ensure that it is clear that belief is not required and how best to introduce variability into the standard of proof. In discussion, there has been general agreement that a belief that the facts in issue were as alleged is not and should not be required. Belief is used here in its true meaning of the acceptance of a proposition or statement of fact as true.[7] In the course of discussions two options have emerged:
• Avoiding the Term ‘Satisfied’. It is argued that the phrase ‘satisfied on the balance of probabilities’ encourages the idea that ‘belief’ is required and that, if the phrase ‘find on the balance of probabilities’ is used, it is less likely that ‘belief’ will be thought to be required. It is true that the word ‘find’ would be less encouraging of the idea that a ‘belief’ was required. However, it is an expression that will not prevent a ‘belief being required’.
• Exclude ‘Belief’. The phrase ‘satisfied on the balance of probabilities’ could be used together with a clause stating that belief is not required. This approach has been criticised on the basis that the term ‘belief’ may be misconstrued and to include such a clause would require the judge to give directions to the jury about its meaning. This would not be easy and may lead to confusion. For these reasons such a clause is not included in the legislation but is included in provisions that follow it.
As neither option appears satisfactory, it is necessary to rely on the legislation being interpreted in such a way that ‘belief’ is not required. The issue is whether this is enough or whether a satisfactory clause can be drafted.
999. As to taking into account the nature of the cause of action or subject-matter, the options appear to be to state that the court shall have regard to them in determining whether it is satisfied[8] or to say nothing. There has been a preponderance of support for the latter course. The former, however, is put forward as the proposal. It may be that the tribunal of fact will have regard to the nature of the allegations and subject-matter if nothing is contained in the legislation. However, if in reaching its decision the tribunal of fact should have regard to such matters, the legislation should say so.[9]
1000. Preserving the Status Quo. In criminal cases, the criminal standard should apply to all charges in respect of which the prosecution bears the burden of proof.[10] A person should not be convicted of a criminal offence unless the court is satisfied that the case is proved against him beyond reasonable doubt—the courts should not apply a lower standard. A variable standard was suggested for criminal trials in the Research Paper proposals. It has not been included in the present ones. A variable standard is likely to depreciate the importance of a high standard of proof in criminal cases. The civil standard should apply to all defences in respect of which the defence has the burden of proof.
1001. Options. While it is clear that the civil standard should generally apply in respect of preliminary questions of fact in civil trials, it is less clear what standard should generally apply in respect of preliminary questions of fact in criminal trials. There are three possibilities—application of a prima facie standard of proof; application of the civil standard; application of the criminal standard.
1002. Apart from Wendo v R,[11] the first alternative has received little support in the decided cases. There are two reasons for rejecting a general prima facie standard. First, it is not appropriate where the preliminary question of fact is not one that ultimately must be decided by the jury.[12] In those cases, the issue is not whether there is sufficient evidence to allow the jury to determine the question for itself. Rather, it is whether there is sufficient evidence to warrant a finding of fact. Secondly, even where it is appropriate, a prima facie standard does not adequately serve the policies of most of the relevant rules of admissibility. Take a case in which the issue of whether the accused’s confession was voluntary resolves, under existing law, into a choice between the evidence of the accused and that of a policeman. The judge might think that the accused is a more credible witness, but that it is conceivable whether a reasonable jury would prefer the evidence of the policeman. In that case, presumably, he would admit the confession, since a reasonable jury could find beyond reasonable doubt[13] that the confession was voluntary. That, it is submitted, is inconsistent with the policies behind the rule that involuntary confessions should be excluded.[14] It would mean that the jury is at risk of being prejudiced by a confession which, on the judge’s own assessment, was more likely involuntary than not. It is doubtful that the probative value of such evidence outweighs its prejudicial effect. A prima facie standard would also be an inadequate disincentive to the police to engage in improper conduct. It would mean that, on some occasions, the judge would, by admitting the confession, give his approval to conduct by the police, even though he thought that conduct was more likely than not improper.[15]
1003. The choice between the remaining two alternatives is more difficult to make. The civil standard has proved attractive in Australia. It appears to be the existing law.[16] The standard has also proved attractive in other common law jurisdictions in respect of some preliminary questions of fact. But in England and New Zealand the law appears to be that the voluntariness of a confession must be proved beyond reasonable doubt. That view also has some support in Canada. In the United States, there is greater support for the civil standard.[17]
1004. According to one commentator,[18] there should be no general rule. Instead, the courts should have regard in a number of factors in determining the appropriate standard:
(1) the purpose of the rule of competency giving rise to preliminary questions of fact and its relationship to both the merits of the underlying controversy and the standard of proof used to decide the merits; (2) the extent to which the purpose would be enhanced by a heightened standard of proof; and (3) the costs of raising the standard, taking into account both the opponent’s capability to satisfy a standard more onerous than the preponderance standard and the potential burdens on the courts.[19]
Applying these criteria, the writer concluded that the appropriate standard for determining whether a confession was voluntary was the criminal one.[20]
1005. There are some preliminary questions of fact in respect of which it seems improper to require a high standard of proof. Where it is the accused who is seeking the admission of evidence that depends on a preliminary question of fact, it would be improper to exclude the evidence because it failed to satisfy the criminal standard. Evidence vital to the accused’s case might be excluded, even though it more likely than not satisfied all the requirements for its admission. Where the prosecution seeks to adduce the evidence, there are questions of fact, such as whether a witness is an expert in a particular field and so able to give opinion evidence, where the civil standard seems more appropriate. In view of this, it is suggested that the better approach is to apply the civil standard to all preliminary questions of fact. Research has not revealed that such a standard has caused any problems or injustice. Any acceptable alternative would introduce greater complexity into the law. In applying a variable civil standard, account could still be taken of the nature of the preliminary question of fact in determining the precise standard that should be applied. As to confessions, a variable civil standard would be consistent with the policies behind the rule that involuntary confessions are inadmissible. It provides some deterrent against improper conduct by the police. It would mean that curial approval would not seem to be given to such conduct.[21] Finally, it is doubtful that a confession which satisfied the civil standard would be substantially more prejudicial than a confession that satisfied the criminal one. Yet, if the confession were excluded, the jury may be deprived of highly probative evidence. In any event, the judge would still retain discretionary powers to exclude the confession in appropriate cases.[22]
1006. Proposal. In determining the admissibility of evidence where conditions of fact must be satisfied, the judge should rule in favour of its admission if satisfied as to those facts on the balance of probabilities. In doing so, he should have regard to the importance of evidence sought to be admitted—for example, the judge in considering the admissibility of an alleged confession will consider whether it is central to the prosecution case or peripheral.
1007. Options. The standard of proof should not apply to each item of evidence. To do so would prevent doubtful evidence being used. The better view is that the conclusions to be inferred from doubtful evidence are at least as doubtful as that evidence, but are nonetheless of some use in determining the case.[23] Any legislation on the standard of proof should leave open the question whether the standard applies to each essential element of a party’s case, or to the case taken as a whole.[24] That would allow the judge to continue to direct the jury that it must find the prosecution’s case proved beyond reasonable doubt. That would mean that it was for the jury to determine whether the standard should be applied to each essential element of the case or the case as a whole. The result, in practice, would be that juries would continue to rely on tacit principles of ordinary reasoning in reaching their decisions. At the same time, the suggested approach would not prevent the practice in some civil trials of giving the jury a list of specific questions to answer. It is doubtful that the theoretical uncertainty that would still remain if this approach were adopted would lead to any practical difficulties. It seems hard to believe, for example, that a jury is likely to reach a different decision depending on whether it is directed that it must find the prosecution’s case proved beyond reasonable doubt, or directed that it must find each essential element proved to that standard.
1008. Proposal. The court may consider each factual element in the case separately or in combination in determining whether it is satisfied to the required level. This is sought to be achieved by drafting the substantive provision in terms of the ‘case’ to be proved, defining the expression in terms of the issues of fact in the case and not otherwise regulating the matter.
[1] If all decisions were made solely on a more preponderance of probabilities, there would be great dissatisfaction in many cases—particularly those involving serious allegations—they would differ only slightly from tossing a coin.
[2] See Appendix C, para 286.
[3] It cannot be inferred that the defendant was negligent because he is a defendant, since there is no causal connection between being a defendant and being negligent.
[4] See Appendix C, para 286.
[5] For criticisms see para 475.
[6] eg, cases involving allegations of fraud.
[7] Concise Oxford Dictionary, 81; forming part of the person’s stock of knowledge, R Eggleston, ‘Subjective Probabilities and the Law’ in CR Bell (ed) Uncertain Outcomes, MTP Press, Lancaster, 1979, 135.
[8] In the case of the admissibility of evidence—the importance of the evidence. No provision is included dealing with the issue of whether the court shall have regard to the specific consequences of its decision on the individual patties. The courts do not appear to have taken such matters into account. While such an approach would be supported by Decision Theory, it is thought unnecessary to specifically deal with the issue in legislation. (Decision theory requires that the court has regard to the utility of the alternative decisions. That theory is open to serious criticism—A Ligertwood, ‘The Uncertainty of Proof’ (1976) 10 MU L Rev 367, 370, 374; see, eg, J Kaplan, ‘Decision Theory and the Fact-Finding Process’ (1968) 20 Stan L Rev 1065; RD Bartels, ‘Punishment and the Burden of Proof in Criminal Cases: A Modest Proposal’ (1981) 66 Iowa L Rev 899. Note, however, Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 361-2.
[9] Commentators have queried the application of this proposal to interlocutory and other applications. It is thought that the proposal would apply as follows:
• Interlocutor v Injunctions. The applicant will succeed if the court is satisfied on the balance of probabilities as to any facts that must be proved as part of a prima facie case and that the balance of convenience is in his favour. Beecham Group Ltd v Bristol Myers Co and Another (1977) 51 ALJR 848.
• Custody Application. The applicant will succeed if the court is satisfied on the balance of probabilities that the order sought will be in the best interests of the child. In reaching this conclusion the court may take the view that it is unable to make findings about specific allegations of, say, alcoholism, violence and the like but is satisfied on the balance of probabilities that the applicant’s proposals involve the least risk for the child. (Note also under s 44(3) of the Family Law Act, a party seeking maintenance or property orders out of time may obtain leave to do so if the court is satisfied that refusal of leave would cause hardship. In coming to that conclusion the court must be satisfied on the balance of probabilities that the refusal would cause hardship (eg In the Marriage of Whitford [1979] FamCA 3; (1979) 24 ALR 424).
[10] In certain cases, it may be though necessary to impose special standards of proof to achieve particular policy objectives. Consequently, any legislation implementing these general principles should make it clear that they are subject to specific provisions to the contrary in other legislation.
[11] [1963] HCA 19; (1963) 109 CLR 559.
[12] eg, the compellability of a witness to give evidence.
[13] It is assumed here, for the sake of argument, that the prima facie standard is a prima facie criminal standard.
[14] Whether the rule excluding involuntary confessions should be retained is considered at para 764-6.
[15] cf Banning v Cross [1978] HCA 22; (1978) 141 CLR 54, 75.
[16] See Appendix C, para 293. It was the standard the Commission recommended a judge should apply in determining whether to exercise his discretion to exclude improperly obtained evidence. See Australian Law Reform Commission, Report No 2, Criminal Investigation, AGPS, Sydney, 1975, draft cl 71(1). That recommendation has been embodied in the Bill that would implement many of the Commission’s recommendations on criminal investigation. See Criminal Investigation 1981, cl. 69(1). Note, however, the decision of Kearney J in The State v Wiola (1978) PNGLR 99 where the beyond reasonable doubt standard was held to apply.
[17] For discussion, see J Afford, ‘Commentary on McCuin and McFadyen’ [1982] Crim LJ 236; SA Saltzburg, ‘Standards of Proof and Preliminary Questions of Fact’ (1975) 27 Stan L Rev 271. Note: The Canadian Supreme Court recently held that the prosecution must prove beyond reasonable doubt that the accused’s statement ‘had not been obtained by fear or prejudice or hope of advantage exercised or held out by a person in authority’—Park v R (1981) 122 DLR (3d) 1, 5. The Criminal Law Revision Committee of England recommended that the standard of proof should be the criminal one, although it gave no reasons for its conclusion: Eleventh Report, Evidence (General), Cmnd 4991, HMSO, London, 1972, para 66.
[18] Saltzburg, ibid.
[19] id., 287.
[20] id, 292-6.
[21] See Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54.
[22] See Appendix C, para 143-5.
[23] R Eggleston, Evidence, Proof and Probability, 2nd edn, Weidenfeld & Nicholson, London, 122.
[24] Note, the approach to be taken may also depend upon which Theory of probability is correct.
1009. General Rationale. The requirements of corroboration and corroboration warnings are justified at a general level on the basis that they reflect the traditional concern to minimise the risk of wrongful conviction.[1] At a general level, they would also seem to reflect a perceived need to guide and control trial judges and juries in handling evidence to which doubts may attach—thus aiding the factfinding process:
Our trial judges and criminal appeal judges, with few exceptions, were, until quite recent times, strongly prosecution-minded. Charges were usually directed to the obtaining of a conviction. Successful criminal appeals were regarded as diminishing the deterrent effect of the criminal law and therefore to be deplored. The gradual building up and strengthening of the present substantial list of situations in which warnings are required to be given to the jury have, I think, played a substantial part in bringing about the change in judicial attitudes which now prevails. And if we now enact a general prohibition of all corroboration warnings I fear that before long the old and, as I think, unhappy attitudes will re-assert themselves strongly.[2]
These concerns are proper ones and should be met by retaining some form of control by rules. Total abolition of any requirements is not recommended. It should not be assumed that there is no justification for control. One commentator has gone further and argued for the maintenance of controls, saying that to abolish the existing law, as would be the result, and rely on the individual trial judge’s unguided discretion would be to abandon and ignore a wealth of accumulated judicial experience.[3] Another point of considerable force is that to abolish the existing law and to set nothing up in its place will simply start again the process by which the existing law has developed. It developed from the situation where trial judges had an unguided discretion.[4] What is required is a form of control which addresses the problems created by the existing law.
1010. Categories—Their Rationale. An issue to be considered is whether any proposal should maintain the existing general categories of witnesses in respect of whose evidence warnings should be given. A traditional rationale for imposing controls on the categories of accomplice, sexual complainant—male and female—and children is that experience has shown that there is a real risk that the evidence of such witnesses may be more unreliable than that of witnesses generally. This is said to be the experience of many years. There is no clear evidence to suggest that this view is wrong.
1011. As to accomplices, there is a reasonable basis for regarding their evidence as potentially unreliable; for they have strong motives to place the responsibility on others. As to children, psychological research confirms that there are areas of weakness in the evidence of children depending on their cognitive development.[5] There is some evidence of relevance to the reliability of evidence of sexual complainants.
1012. The traditional view is that the number of unfounded sexual offence complaints—by male and female complainants—is proportionally higher than for other crimes. Some empirical studies have shown higher rejection rates of sexual complaints by prosecution authorities than for other classes of offence.[6] But this is not a universal pattern.[7] In any event rejection of a sexual complaint might not indicate that the complaint was unfounded. It is difficult, moreover, to see what conclusions can be drawn from the information of this type, for the number of rejected complaints tells us nothing about the reliability of complainants who actually give evidence in court. One must also bear in mind the fact that there are strong pressures on a complainant not to make an allegation of rape. The number of cases of rape which go unreported each year suggest that accusations of rape are far from easy to make. It is difficult to obtain accurate statistics on the number of unreported cases and estimates vary widely. But many authorities take the view that rape is probably the most under-reported crime. Some estimate that the rate of under-reporting could be as high as 70 per cent or even 90 per cent.[8] At their highest, the arguments as to reliability and unreliability are inconclusive.
1013. It has also been argued that there are particular dangers of wrongful convictions in the case of sexual offences:
• The Ease with which Unfounded Allegations can be Made. It has been argued that there are many opportunities for plausible but unfounded allegations. It has been said that the opportunity to make such allegations must occur on vast numbers of occasions each year; for the number of consensual sexual acts occurring each year can hardly be put at less than several hundreds of thousands. On most occasions there will be no third person to give evidence. Corroborating evidence can easily be fabricated. Evidence of intercourse will commonly be found. By comparison there would be relatively few occasions upon which a person’s lawful activities could be easily and plausibly represented to have constituted serious non-sexual crimes such as, for example, murder, robbery, housebreaking or embezzlement.[9]
• Jury Sympathy. The jury’s sympathy for the complainant is likely to increase the chances of conviction. Studies suggest this may be so in some cases. On the one hand the research of Kalven and Zeisel, for example, indicated juries were less willing than judges to convict in cases of non-violent rape involving a single attacker, consensual but unlawful carnal knowledge, indecent exposure to adults and cases where the complainant could be represented as having assumed the risk of rape by going to the accused’s house or admitting the accused to hers. On the other hand, the juries were more eager than the judges to convict for rape involving considerable violence or some other aggravating element, indecent exposure to children and unlawful carnal knowledge where the age of the complainant or some other factor made the crime seem more serious.[10]
• Motive. The complainant, like the accused, will ordinarily have the strongest motives of self-interest to obtain a favourable verdict.[11]
• The Problems with the Issue of Consent. In rape cases, there are particular difficulties in determining whether the complainant consented to sexual intercourse. It is true that an issue as to consent does not ordinarily arise in the case of a sudden attack by a stranger or a forcible abduction by a pack of youths in a car. But these are not the typical situations:
In 65 per cent to 75 per cent of cases the complainant is in the company of the accused of her own free choice and, not uncommonly, the alleged rape occurs in a courtship situation ... in which one can point, not only to a motive for committing rape (if consent is refused) but also to a motive for consenting.
In such situations the question whether there was consent or not can be difficult to answer, even for the two parties themselves.[12]
1014. It may be argued that the dangers described will not arise in some cases and that some will be found in other criminal trials not involving charges of sexual assault. The issue is whether the arguments raised about accomplices, sexual complainants and children are without foundation or, if qualified, should be rejected. The available evidence makes it difficult to conclude that they are or should be. The points made, however, can be met not by totally abandoning the existing categories but by taking a more flexible and simpler approach.
1015. Warnings. The present law is too rigid and technical. There is a strong case for saying that it does not adequately serve the rationale of minimising the risk of wrongful convictions. Warnings can be required when not necessary and avoided when they should be given in the circumstances of the particular case. In addition, warnings, in their present form, distract attention from the issue of the reliability of the evidence in question. Finally, the directions to be given are so complex that they are likely to be ignored. There is also a strong case for arguing that the law does not provide an appropriate guide for and control of the judge. Attention is focused on technicalities instead of the needs and merits of each particular case. The law, in its complexity, creates problems that can exceed the help it may give. What is required is a simpler regime, under which the trial judge must consider whether a direction appropriate to the circumstances should be given. It must also be flexible. As recently put by the Supreme Court of Canada:
None of [the traditional arguments in support of the existing law] can justify a fixed and invariable rule regarding all accomplices. All that can be established is that the testimony of some accomplices may be untrustworthy. But this can be said of many other categories of witness. There is nothing inherent in the evidence of an accomplice which automatically renders him untrustworthy. To construct a universal rule singling out accomplices, then, is to fasten upon this branch of the law of evidence a blind and empty formalism. Rather than attempting to pigeon-hole a witness into a category and then recite a ritualistic incantation, the trial judge might better direct his mind to the facts of the case, and thoroughly examine all the factors which might impair the worth of a particular witness.[13]
1016. It is proposed that the existing requirements of law and practice be abolished. This will have the consequential effect of removing the obligation to direct juries about what is corroboration, what evidence may amount to corroboration and that, notwithstanding the absence of corroboration, the jury may still convict if satisfied beyond reasonable doubt of the accused’s guilt.[14] In the case of ‘accomplice’ evidence, it will remove the obligations to direct juries about who is an accomplice and that it is for the jury to determine whether the witness is or is not an accomplice.
1017. Replacement of Categories. Rules should be adopted which take account of the existing categories. This should be done, however, in a way which avoids the barren and anomalous technicalities and suggested discrimination of the existing law and encourages the giving of appropriate directions in respect of all witnesses. It is proposed that there be an obligation to give a warning, unless there is good reason not to, where it appears to the judge that evidence coming within one of several broadly described categories may be unreliable, or its probative value may be over-estimated. The categories are broadly described—evidence of persons concerned in or with the offence, victims of sexual assaults, the young, the old, the mentally disabled, claimants against the estates of deceased persons, hearsay evidence[15] and evidence in the form of unsigned records of interview. The disadvantage with this approach is that some category may emerge in the future which should be treated in the same way. As stated in the legislation, however, the judge’s general powers and obligations to give appropriate warnings and directions will remain and be available to cover such situations. The warning is to be directed to the weaknesses of the evidence and the need for care in deciding whether to accept it.[16] In deciding whether there are reasonable grounds for not giving a warning, the judge could consider matters such as the other evidence before the court and the importance of the evidence.[17]
1018. A judge will not be prevented from suggesting that the jury look for independent evidence which may confirm the evidence in question and he will not be prevented from directing a jury, in an appropriate case, that it is dangerous to convict an accused on the basis of a particular witness’ evidence.
1019. It has been suggested that as all evidence may be unreliable or may be given incorrect weight, the judge will have to give a warning in respect of any evidence within the categories listed. It is thought, however, that this should not occur because the section,[18] properly construed, clearly assumes that evidence coming within the categories may be reliable and unlikely to be given incorrect weight. It makes it clear that it is not enough to demonstrate that evidence comes within one or more of the categories. Before the judge must consider giving a warning, it must also be shown that the evidence may be unreliable or open to misestimation.
1020. This proposal raises the familiar problem of whether it is better to adopt a discretionary or rule approach to the laws of evidence. In this context that debate should be resolved in favour of a discretionary approach. Cases will vary so much that a guided discretionary approach is required. One of the main arguments against a discretionary approach is that it makes it extremely difficult for parties to prepare for the trial, since they do not know what evidence will and will not be admitted. But that problem does not arise where the issue is whether a judge should be required or should have a discretion to warn the jury about certain evidence after it has been admitted.
1021. Perjury. It appears that the rule requiring corroboration is largely the result of an historical accident. Prosecutions for perjury were originally heard in Star Chamber. That court followed the practice of Civil law, which contained complex and detailed rules on how many witnesses were required to prove particular matters. The Star Chamber rules were simply retained when prosecutions for perjury were transferred to King’s Bench.[19] Despite that, it is often argued that there is good reason for retaining the rule. The argument is most forcefully put by Best that the requirement is necessary to protect witnesses from false charges of perjury, which, if they were common, would discourage people from giving evidence:
The legislator about to deal with the offence of perjury has to determine the relative weight of conflicting duties. Measured merely by its religious or social enormity, perjury, always a grievous, would in many cases be the greatest of crimes; and as such deserving the severest punishment which the law could inflict. But when we remember the very peculiar nature of this offence, and that every person who appears as a witness in a court of justice is liable to be accused of it by those against whom his evidence tells, that these are frequently the basest and most unprincipled of mankind, and reflect how powerless are the best rules of substantive law without the co-operation of society to enforce them, we shall see that the duty of protecting willing witnesses from oppression, and even annoyance, by charges, or threats of charges, for bearing false testimony, is far paramount to that of giving even perjury its deserts. To control the ravages of that crime, prevention is better than cure; and for this purpose the law of England relies on the means she affords of detecting it when committed, such as publicity, cross-examination, and the aid of a jury, and, when the offence is clearly proved, by the infliction of a severe, but not excessive punishment. But, to prevent the greater evils which would arise from false accusations she throws every fence around the person accused of it, the utmost precision is required in the indictment, the strictest proof is exacted, both of what the accused swore and of its materiality to the subject under inquiry; and, lastly, the testimony of at least two witnesses must be forthcoming to prove its falsity. The result accordingly is, that in England little difficulty, comparatively speaking, is found in obtaining voluntary evidence; and although, in the course of the year, many persons may escape the legal punishment awarded to perjury, instances of erroneous conviction for it are unknown, and the threat of an indictment for perjury is treated by an honest and upright witness as a brutum fulmen.[20]
This argument carries some weight. There is always a danger that the threat of a perjury prosecution will be used in an attempt to deter a witness from giving evidence or that such a prosecution might be brought out of spite. The latter possibility, it might be argued, is of particular concern in relation to proceedings in the Family Court. An option would be to require the consent of the Attorney-General before a prosecution could be commenced. That proposal would be a more direct way of discouraging prosecutions from being brought for some ulterior motive. It would clearly be inappropriate, however, to include such a proposal in legislation dealing with evidence law. For these reasons, it is suggested that the present requirement of corroboration be retained.
1022. Other Cases. Many of the existing requirements of corroboration[21] are imposed by legislation in respect of specific offences or causes of action. They are contained in legislation which deals with the substantive law, not the laws of evidence. In some cases, the main purpose of the requirement is to achieve some policy objective not related to evidence law. For example, the main justification for the requirement of corroboration in treason or sedition cases is often said to be the need to ensure that the individual is fully protected from oppressive conduct by the State. It is not proposed to affect such requirements. If changes to those requirements are necessary, they should be made by amendments to the legislation which imposes them. As in the case of other rules of evidence contained in legislation dealing with the substantive law, it is proposed to leave an examination of the possible changes to a later stage of the reference.
1023. Of the remaining cases in which a warning is required, there is none in which it is required as a matter of law. At most it is only required as a matter of practice. These can and should be dealt with under the planned proposals with the one possible exception of the evidence of agents provocateurs. In that case, it might be argued that the present discretionary warning is a deterrent to improper conduct by the police. Whether that is so, however, is doubtful. A far more effective deterrent, and one that already exists, is to exclude the evidence altogether if it was obtained improperly.[22]
[1] eg, Law Reform Commissioner of Victoria, Report No 5, Rape Prosecutions, Govt Printer, Melbourne, 1976, s 6 (VLRC 5); Judge Martin, Submission (18 April 1983).
[2] TW Smith QC, Submission (24 March 1983) 3.
[3] Judge Martin, Submission (18 April 1983).
[4] ibid; Justice FC Hutley, ‘Appeals Within the Judicial Hierarchy and the Effect of Judicial Doctrine on Such Appeals in Australia and England’ [1976] SydLawRw 1; (1973-6) 7 Sydney L Rev 317, 324.
[5] See para 242.
[6] A survey by the Law Reform Commissioner (Vic) of cases dealt with in selected Victorian police districts between January 1974 and November 1975 revealed that 68 of 135 complaints of rape were not accepted as such. This figure includes three complaints withdrawn at the request of the complainant and 9 that were dealt with as non-rape cases. See VLRC 5, Appendix C. Similarly, of the cases of rape reported to the Western Australian Police over a five year period, only 57 per cent were treated as genuine. See L Henry, ‘Hospital Care for Victims of Sexual Assault’ in JA Scutt (ed) Rape Law Reform, Australian Institute of Criminology, Canberra, 1980. 171. In neither survey, however, were the figures for other crimes given.
[7] According to the FBI Uniform Crime Report, 15% of all reports of rape in 1973 were unfounded. The figure for other crimes of violence was 2%. See S Brownmiller, Against Our Will: Men, Women and Rape, Seeker & Warburg, London, 1975, 387. According to Brownmiller, for example, when New York City instituted a special Sex Crimes Analysis Squad with policewomen in charge of interviewing complainants, the proportion of unfounded complaints dropped to 2%.
[8] For discussion, see VLRC 5, para 13, n 8; M Amir, Patterns in Forcible Rape, University of Chicago Press, Chicago, 1975, 27-9; V Berger, ‘Man’s Trial, Woman’s Tribulation: Rape Cases in the Courtroom’ (1977) 77 Col L Rev 1, 5. Thirty-eight per cent of people seen by Help Centres for Victims of Sexual Assaults in New South Wales stated that they did not intend to make a formal complaint to the police: see Health Commission of New South Wales, Report, Help Centres for Victims of Sexual Assaults, Sydney, 1982, 16. Of the 239 victims of sexual assault referred to the Sexual Assault Referral Centre (Perth) between October 1978 and March 1980, 51 did not report the crime to the police: see Henry in Scutt, 169.
[9] VLRC 5, para 18.
[10] H Kalven & H Zeisel, The American Jury, Little, Brown & Co, Boston, 1966, 249-54, 274-80.
[11] VLRC 5, para 18.
[12] ibid.
[13] Vectrovec v R (1982) 136 DLR (3d) 89, 101.
[14] This is done in the legislation by providing that it is not necessary that evidence be corroborated or to warn that it is dangerous to act upon the uncorroborated evidence of witnesses (subject to certain exceptions) or give directions relating to the absence of corroboration.
[15] See R v Askew [1981] Crim L Rev 398; DE Harding, ‘Modification of the Hearsay Rule’ (1971) 45 ALJ 531.
[16] Consideration was given to a proposal in terms that the trial judge consider whether a warning should be given. It was thought, however, that the proposal relaxes the requirements of the present law to some extent and there is a need to place an obligation upon the trial judge to give appropriate warnings in the specified instances unless there is good reason to the contrary.
[17] Identification evidence is included in the broad categories. It is thus made subject to the general warning provision. In addition, there is the more specific regime in cl 101.
[18] cl 134.
[19] See JH Chadbourn (ed) Wigmore on Evidence, Little, Brown & Co, Boston, 1978, para 2040.
[20] WM Best, A Treatise on the Principles of Evidence, Sweet, London, 1849 (reprinted 1978 by Garland Publishing, New York & London) para 398.
[21] Appendix C, para 298-307.
[22] See para 958-66; neither the Mitchell Committee (Criminal Law and Penal Methods Reform Committee of South Australia, Third Report, Court Procedure and Evidence, Govt Printer, Adelaide, 1975, Chairman: Justice RF Mitchell) para 12.3-12.5, nor the Law Reform Commission of Tasmania (Report No 21, Report and Recommendations on the Law and Practice relating to Corroboration, Govt Printer, Hobart, 1978) thought that a special rule should apply to agents provocateurs. The Mitchell Committee did recommend that a corroboration warning should be given where the agent provocateur was an informer who was not a police officer, but that was on the basis that the definition of ‘accomplice’ should extend to cover such witnesses.
1024. Topics Considered Elsewhere. In the final part of the legislation, provisions are included which are of general application. These include proposals discussed elsewhere—
• drawing inferences from documents;
• proof of statutory requirements by affidavit;
• access to documents and requiring the calling of witnesses;
• matter relevant to the court’s decision to grant leave.[1]
1025. Other Proposals. There is included a provision conferring a regulation power. In addition, there is a provision imposing an obligation on parties in civil proceedings to object before the rules of admissibility[2] come into play. There are also two provisions enabling the court to dispense with the application of rules relating to questioning of witnesses and the rules of admissibility:
• with the consent of the patties. This proposal will apply in civil and criminal proceedings. Safeguards are imposed to ensure that an accused will be able to make an informed decision;[3]
• in civil proceedings, where the matter to which it relates is not in dispute or unnecessary expense or delay would otherwise be caused.[4]
It is thought that the latter power to dispense with the rules in exceptional cases is desirable.[5] However much care is taken in formulating rules, situations may arise which are not dealt with and some flexibility is needed to meet such situations. The Federal Court, for example, has been asked to exercise the power in relation to survey evidence.[6] Under the proposals the obstacles to the admission of survey evidence in civil proceedings posed by the hearsay and opinion rules are reduced.
1026. As to the hearsay rule, where what is relevant is the response of the interviewee, it will be sufficient to call the interviewers and the hearsay notice procedure could be used to obtain leave not to call all the interviewers. Where what is relevant is the opinion of the interviewee, the latter procedure could be used to obtain leave not to call all interviewees. As to the opinion rule, the abolition of the ultimate issue rule and common knowledge rule remove major obstacles. The protections given in respect of the hearsay and other proposals—enabling requests for the attendance of witnesses and the supply of documents—will be available so that mechanisms will exist to enable survey evidence to be properly examined and tested.
Nonetheless other arguments may remain and a power to dispense with the rules of admissibility subject to directions may be the most satisfactory way of dealing with survey evidence.[7]
1027. The Law and its Rationale. The judge or jury may leave the court to observe places or objects that cannot be brought to or reproduced successfully in the court. Such an excursion is a view. At the scene of the view, evidence may be led in the form of a demonstration or an experiment. Although there is some uncertainty as to the existing law, particularly in England, a distinction is drawn between a view and a demonstration—only the latter is classified as evidence. The former is material assisting the tribunal of fact in understanding evidence adduced in the court. A number of reasons have been advanced for this approach. They explain it, but do not necessarily justify it:
• The Trier of Fact Becomes a Witness. It is argued that if the trier of fact were able to consider the information gained on a view as part of the total evidence he would become a witness in the trial. By the eighteenth century the distinction between the tribunal of fact and witnesses had been settled, with the former being required to give a verdict on the testimony of witnesses delivered in court, unaffected by any private knowledge possessed by the trier of fact himself.[8] Certainly a trier of fact should not be a ‘witness’, in the sense of using his own prior knowledge as the basis of his determination of fact. But the considerations prohibiting this have no relevance when the knowledge is gained on a view after the occurrence of the event in dispute. It is difficult to see how the trier of fact is any less a ‘witness’ in this sense when he examines an exhibit presented in court or when he uses his general experience to evaluate a witness’ credibility.
• Susceptibility to Misuse. It is argued that a view is peculiarly susceptible to misuse. The tribunal of fact may attach undue weight to the results of the view, failing to restrict its use to the purpose for which it was granted, drawing inferences from things which really require expert evidence, taking into account material which is ‘untested, untried and unknown’.[9] Justices McInerney and Murphy referred in R v Alexander[10] to the danger that ‘a juror may, if his own visual observation is to constitute evidence, see or fail to see in some object concerning which evidence is given in Court, some materiality, idiosyncratic to him, which is never revealed, and which if once revealed could be readily explained away’.[11] The basis of the original English decision of London General Omnibus Co Ltd v Lavell[12] seems to have been a fear that the view would be used to the exclusion of evidence given in court. These dangers are an extension of the previous argument and, while real, do not justify limiting the permissible function of views to something other than evidence. The problem of errors being made by the tribunal of fact applies to all evidence. But to prevent the tribunal of fact using its own direct observations and to require it to act on the evidence of witnesses as to their observations of the same subject matter into run a greater risk of error.[13] It is suggested the problems should be met by imposing controls on the admissibility of evidence of views rather than refusing to recognise that views have any evidentiary value at all.
• Practice of View by Jury (or Judge Sitting Alone) in Absence of Parties. The occasional practice of the tribunal of fact having a view in the absence of the parties (and the judge in a jury trial) is in contrast with all other forms of evidence, which must be given in the presence of the parties and the judge. As Lord Justice Denning stated in Goold v Evans,[14] it is a well established principle that the evidence on which the tribunal acts ‘must be given in the presence of both parties, or, at any rate, each party must be given an opportunity to be present’. The conclusion which the courts have drawn is that a view may be given in the absence of the parties and the judge because it is not evidence in the sense that a demonstration, for instance, is evidence. But, as Solomon argues, such a conclusion is fallacious. The real reason for permitting views to be held in the absence of the parties and the judge is that there is no real risk of prejudice from that type of evidence:
The same reasons of policy which require a witness’ oral evidence or the performance of an experiment or an active demonstration by witnesses to be given before the judge and the parties do not necessarily apply where the jury is simply being shown a place or thing the identity of which is not in dispute, the condition of which is apparently known to the parties and the relevance of which has been made clear by the oral evidence given. It is difficult to see how a litigant can be prejudiced by such a view in his absence in the same way that he can be prejudiced if a witness were to give evidence in his absence, thus denying him the opportunity of cross-examination. The requirement of admissibility in the case of a view is satisfied when the nature of the case is such that a view may help the jury to understand or weigh the oral evidence or decide the issues; the requirement that the parties have an opportunity to test the evidence disappears where the thing or place to be seen is known to the parties and they are content to let the jury have a mere view without the assistance of witnesses to point out any particular features that may be considered important.[15]
• Difficulty of Appellate Review. The results of a view cannot be transmitted to the appellate tribunal as part of the record. It is impossible to embody the facts garnered from a view in a written transcript.[16] It is argued that an appellate court can only determine error of fact upon the record, and that information gained on a view which cannot be embodied in a written transcript cannot be evidence. The appellate court could never know on what basis the tribunal of fact arrived at its decision. But, on appeal, the parties can indicate what aspects of the view did or did not support the findings and it would be possible for an appeal court to take a view itself. Moreover, even if this were regarded as inappropriate, a similar difficulty of absence of a record is faced by appellate courts in assessing the weight to be attached to inferences drawn by the tribunal of fact from the demeanour of witnesses whom the appellate court has not seen. The appearance and manner of the witnesses are clearly part of the material to be considered by the tribunal of fact. The limitations of the record on appeal cannot define the scope of information which the trier of fact may use. As Wigmore notes, the record is only designed to incorporate the evidence so far as is feasible.[17]
• View Not in Court. Another argument is that the information obtained on a view is not obtained in a properly constituted court, and cannot therefore be defined as evidence. But if the proper constitution of the court defines whether the information on a view can be used as evidence, it seems simple to solve the problem by reconstituting the court at the relevant locus.
• Static and Dynamic. The obvious distinction between a view and a demonstration is that one tends to be static, while the other is dynamic. This is one reason why the courts have adopted the practice of permitting the tribunal of fact having a view in the absence of the usual procedural safeguards, regarded as necessary at a demonstration. This approach is understandable. In situations where a view is both practicable and feasible but attempted reconstructions might mislead the viewer, it is clearly right to give the parties the opportunity to guard against these dangers. The judge must be present so that he may be prepared to summarise all the evidence for the jury. It is particularly important to ensure that the demonstration accurately reflects the circumstances and events of the time in question. But these concerns to ensure procedural fairness do not lead to the inevitable conclusion that a view is not evidence. Rather, consideration should be given to appropriate procedures for handling views and demonstrations.
1028. Proposal. It is proposed that a view be treated as evidence. The Governor-General and former High Court Justice, Sir Ninian Stephen, referring to the ‘delightful legal fiction’ that it is not evidence, has noted that ‘the judge must shut his eyes to almost everything he sees on site and, to be sure that he derives as little possible benefit as he can from the view, he must, like some Hare Krishna devotee, continuously and inwardly intone the incantation, ‘I will use what I see only to better understand what I hear and for no other purpose, Amen’.[18] The view should be recognised as a legitimate source of factual information upon which the tribunal of fact may base a finding. As the Canadian Law Reform Commission and Uniform Law Conference recommended, the tribunal of fact should be permitted to draw all reasonable inferences from the evidence of a view.[19]
1029. But the use of out of court inspection must be subject to limitations to ensure that the tribunal of fact is not misled and to ensure procedural fairness. While it is proposed to permit a court to order such inspections, including appropriate experiments and demonstrations, it is also proposed to provide some guidance as to when such an order should be made.[20] The trial judge should consider such factors as:
• changes in the property, object or locale since the occurrence of the event in dispute; and
• whether any proposed demonstration will duplicate the conditions existing at the time of the events in question.[21]
If these factors are not present, the trial judge should consider whether they can be overcome by appropriate steps. If not, the inspection should not be held (because it will either be irrelevant, or its probative value will be outweighed by dangers of prejudice and misestimation of probative value).
1030. It is proposed that an inspection out of court, whether strictly a view or a demonstration in content, should not be undertaken unless the patties and their counsel have been given an opportunity to attend, and the judge, and jury (if any), is present.[22] While the present law seems to impose this requirement only with respect to ‘dynamic’ exercises such as demonstrations, because of the greater risk of misuse, considerations of fairness suggest that it is appropriate for all inspections, where practicable. But it should not be necessary that the parties both consent to the inspection, nor that it be inadmissible evidence if one or other party chooses not to attend. Rather the judge should consider whether the absence of that consent or presence is likely to lead to misuse of the evidence. If that danger is real, the inspection should not be held.
1031. An analogous area to out of court inspection is that of inspection by a jury in the jury-room, considered by the High Court in Kozul v R.[23] While, under the proposal, such inspection by a jury would be considered part of the evidence in the proceeding, it would be impractical to require the presence of the trial judge, or to provide the parties or their counsel with an opportunity to be present. There is always a risk, however, that the jury will not just inspect the relevant object but also experiment with it. As a consequence, a number of alternatives may be considered with respect to an appropriate judicial direction where there is likelihood of experimentation:
• The trial judge could direct the jury not to carry out any experiments with exhibits.[24] The only sanction would be that, if there were admissible evidence as to experiments in fact carried out, it could provide a basis for an appeal;
• The trial judge could warn the jury of the relevant dangers with such experimentation and seek to discourage experimentation, but there would be no inquiry into the jury’s reaction, nor any sanction, such as appeal, if experimentation did take place;[25] or
• The trial judge would permit the jury to experiment but direct them to inform him if such experimentation took place so that the parties could be given an opportunity to lead further relevant evidence.
The last alternative is unsatisfactory because it involves judicial intervention into the jury room. There is a strong public interest that the jury room remain absolutely private. But the Commission has divided on the choice between the two other options. Both require the jury to make the, at times, difficult distinction between inspection and experiments.[26] A majority of the Commission considers the second alternative unsatisfactory because of the dangers of the jury carrying out experiments without expert guidance and the apparent procedural unfairness deriving from the absence of the parties and the lack of any sanction. It therefore proposes the first alternative. One member of the Evidence Division of the Commission, however, proposes the second alternative. His primary concern with the first option is that, if the jury does in fact embark upon some form of experimentation, subsequent disclosure of that activity may raise the issue of whether disobedience to the direction should lead to a re-trial. The second alternative directs the judge to warn, but ultimately leaves the matter to the jury’s good sense. It avoids the undesirable development of appeal courts being required to conduct inquiries into how the jury went about its deliberations. The majority does not share this view. An appeal court will only be required to consider the issue if there is evidence of the gathering of evidence by a jury in the absence of the parties. It would be damaging for the court system if it was seen to ignore situations where natural justice has arguably been denied.
1032. Appropriate Tribunal. The general rule that the trial judge determines whether a fact exists, when the existence of that fact is a condition precedent to the admissibility of evidence, achieves a number of objectives. The rule can keep prejudicial or unreliable material from the jury.[27] In non-jury trials, it can assist the judge to ignore such material when deciding the facts. It can be necessary to achieve the policies behind the exclusionary rules (like those relating to privilege). In addition, it can save time at the trial, minimise the complexity of the jury’s task and enhance the predictability of determinations. It is proposed, therefore, to retain this approach.
1033. But where the only objection to admission of an item of evidence is that it is not logically relevant unless certain other facts exist, the advantages of giving the trial judge responsibility for finding preliminary facts are reduced, and are balanced by the possibility that the judge’s findings will deprive the jury of the opportunity to decide the central issue in a case. Since the adduced evidence will be excluded only because it is not relevant, and not for policy reasons, there is little danger in permitting the jury to hear the offered evidence, even if the preliminary fact is not found to exist. Again, it is proposed to retain the existing position that questions of conditional relevance are ultimately to be decided by the tribunal of fact, the trial judge deciding only whether a reasonable jury could find the condition satisfied.
1034. Another situation is that where a preliminary question of fact is identical with an issue in the case. Letting the judge decide the question may involve problems:
• The judge will have to sum up to the jury on an issue which he has already decided. But one may query how serious this problem is—a trial judge will often have to sum up on matters upon which he has a personal view;
• If the jury is present during the voir dire, the judge’s determination will at least threaten to compromise its later conclusion on the same issue. The question of whether the jury should be present will be considered below;
• The evidence adduced on the voir dire may have to be given over again. This will certainly be the case when the voir dire is held in the absence of the jury. But, if the value of the exclusionary rule is conceded, the time necessarily so spent will be well spent;
• The judge and jury might decide the issue differently. But there is no requirement that the judge and the jury must agree on the resolution of an issue which both have to decide and in any event, the standard of proof to be applied by them may differ;
• The court will sometimes foreclose the jury’s decision by excluding evidence which may be decisive. But the judge may in effect foreclose the jury’s decision whenever he excludes important evidence on the basis of an evidentiary rule. Retaining exclusionary rules necessitates such a result.
Leaving the question to the jury has unsatisfactory aspects:
• In some cases, leaving the question to the jury may result in a failure to vindicate the policy behind an exclusionary rule. For example, a claim of spousal non-compellability may arise in a case where an issue in the trial is whether the accused was in fact married to the rape complainant. Unless the judge rules on the compellability of the spouse witness, the harm that spousal non-compellability is supposed to prevent may occur;
• The jury may be prejudiced, in the sense that it may take evidence into account even if it decides the question in a way that would result in the evidence being inadmissible. Where the coincidence of issues is complete this will not be a problem, since the decision of fact would determine the case without any need for considerations of admissibility, but there will be a risk of prejudice where a decision on an ultimate issue will not resolve all matters facing the tribunal of fact.[28]
While the US Federal Rules do not prohibit a judge from deciding issues on evidentiary rulings which also happen to be ultimate issues in the case[29] the Canadian Law Reform Commission asserted that such an issue ‘is obviously a matter for determination by the trier of fact ... to prevent usurpation of the jury’s function’.[30] On this view, courts should be wary of keeping from the jury evidence that might reasonably be found admissible when that evidence may be the best available on a matter the jury is expected to resolve. But the contrary position is that there is no need for consistency between a preliminary finding by a judge and a final determination by the jury. The judge is ruling only on the question of admissibility and the standard of proof which he applies in reaching his conclusion may be lower than that which the jury applies. Taking into account the arguments, it seems more appropriate to apply the general rule that the trial judge should decide the preliminary question notwithstanding that the jury will also have to decide it.
1035. Presence of the Tribunal of Fact. If the tribunal of fact is present during a hearing to decide whether to admit an item of evidence, a number of consequences may follow. Firstly, the very evidence whose admissibility is disputed may be revealed to the tribunal during the hearing. If the evidence is not admitted, the tribunal will be faced with the difficult task of ignoring it and may be prejudiced or misled.[31] In addition, the tribunal may hear material which, while relevant to the question of admissibility, is not relevant to the issues in the trial and again, may prejudice or mislead. Further, the tribunal may hear material which, while relevant and admissible on the question of admissibility would be excluded for policy reasons in the trial proper. When a judge is sitting by himself such dangers are difficult to avoid, unless another judge is brought in to decide evidentiary questions. But when the trial involves a jury acting as tribunal of fact, it is possible to send the jury out during the voir dire. Nevertheless, there are a number of considerations which suggest that the jury need not or should not always be sent out:
• Time and Cost. The procedure is time consuming. Not infrequently the same evidence which is relevant to the issue of establishment of a condition precedent to admissibility is also relevant to weight or credibility, and time would be saved by taking the evidence in the presence of the jury.
• Prejudice to Party. There is a danger that the jury will think they are asked to withdraw because statements damaging to a party/accused are about to be made.[32]
• Jury Reaction. It may have an adverse effect on the jury’s attitude to the court and the parties if it is repeatedly excluded from what are apparently important decisions.
• Non-Prejudicial Material. Some evidence on preliminary questions of admissibility, even where not relevant to jury issues, may be heard by the jury with no adverse effect.
• Determination out of Jury’s Hearing. It may be possible to permit some brief discussion at the judge’s bench without the need for physical removal of the jury from the court.
Cross argues that ‘it is probably better that they [the jury] should remain in court while evidence concerning facts constituting a condition precedent to admissibility is given, unless it is impossible to take such evidence without disclosing matters which the judge might ultimately hold to be inadmissible’.[33] One option might be to permit a jury to be present whenever the issue is one ultimately for their determination. But this is not a particularly useful test, since almost all questions of admissibility turn on facts which will ultimately affect the probative value of evidence—a matter for the jury. In most cases a discretionary approach seems appropriate. The American Federal Rules vest a broad discretion in the trial judge to send out the jury except in the case of a determination as to confessional admissibility, or where the accused is a witness and requests the absence of the jury. Rule 104(c) provides:
Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require or, when an accused is a witness, if he so requests.
The Canadian Law Reform Commission advanced a similar proposal, but it also advocated the absence of the jury when a decision was being made whether to exclude improperly obtained evidence on policy grounds.[34] It is proposed to follow a modified version of this approach. Hearings relating to admissions or improperly obtained evidence should not be in the presence of the jury. It is not proposed that an accused be able to require a hearing out of the presence of the jury. Such a provision was included in the Federal Rules so that an accused might testify freely on preliminary matters without impairing his right not to testify in the trial proper. But proposals advanced below meet that concern and it is not proposed to adopt a blanket rule depriving trial judges of their authority over the conduct of trials in this area. As for hearings to determine any preliminary question other than one relating to an admission or improperly obtained evidence, the matter is left in the trial judge’s discretion although as a general rule, the jury should not be present.
1036. Application of Exclusionary Rules. United States Federal Rule of Evidence 104(a) provides that a court, in making a determination as to admissibility:
... is not bound by the rules of evidence except those with respect to privileges.[35]
But the Canadian Uniform Law Conference considered that ‘unresolved questions, such as whether the rules of evidence apply to the determination of preliminary facts, can, in the view of the majority, be determined better on a case by case basis rather than in the abstract’.[36]
1037. A number of arguments have been advanced in favour of the proposition that the judge should not be bound by the exclusionary rules on the voir dire:
• No Jury. The Advisory Committee on the Federal Rules of Evidence justified its approach by citing McCormick’s argument that the exclusionary rules are ‘the child of the jury system’.[37] Weinstein argues that ‘there is no real need to erect this structure of evidentiary obstacles’ when the trial judge acts alone. ‘The trial judge’s experience and legal training can be relied upon to winnow the chaff from the wheat’.[38] The judge will be fully aware of the inherent weakness of evidence normally excluded in jury trials and will take such weakness into account. But it seems difficult to reconcile this argument with the fact that a trial judge is generally as much bound by the exclusionary rules when sitting alone as when there is a jury.
• Analogy with Other Judicial Proceedings where Rules Inapplicable. The Advisory Committee referred to ‘many important judicial determinations made on the basis of affidavits’.[39] But the use of affidavit evidence is a specific issue separable from the general question of the general applicability of the exclusionary rules and the argument by analogy raises the very issue of whether the analogy is apposite.
• Practical Considerations. The Advisory Committee also argued that practical necessity supported inapplicability of the rules, since an item of evidence, offered and objected to, must often itself be considered in ruling on admissibility.[40] But, in considering the existing law, it has already been noted that this does not necessarily involve ‘bootstrapping’, and may sometimes be justifiable on the basis that the item of evidence is prima facie admissible.
• Time and Cost. Inapplicability of the rules is likely to expedite considerably the course of the voir dire hearing and the trial itself.
1038. Regardless of the strength of these arguments, there are others which support the proposition that it is appropriate to apply exclusionary rules to the voir dire:
• Policy Concerns. The Federal Rules, even though providing in rule 104(a) that the rules generally do not apply to the admissibility hearing, make an exception for the privilege rules. Weinstein argues that this reflects the applicability of the policy issues underlying the privileges to both judge and jury determinations. The confidentiality of certain relationships is to be protected even in the face of the court’s demand for information, and protected against disclosure even if only to the judge.[41] The same reasoning would apply to other rules justified on grounds other than those of reliability (eg, the rules relating to improperly obtained evidence).
• Admissibility and Weight. Where the evidence considered by the court (to decide admissibility) will also be considered by the jury (on the question of weight), it would seem odd that the judge will have access to material which is denied to the jury.
• Non-Jury Trials. In non jury trials the trial judge is susceptible to being influenced in his final factfinding task by evidence received in making the preliminary decision. The problem is aggravated in those situations where the same fact question is both a condition of admissibility of evidence and also one of the ultimate issues in the trial.
• Ultimate Issue for Jury. When the trial judge is deciding only whether a reasonable jury could decide an issue of fact in a way rendering evidence admissible, it does not make sense on this preliminary determination for the judge to consider material other than that which the jury will have before it—ie admissible evidence.[42]
For these reasons, it is proposed that the rules of admissibility should apply to evidentiary determinations.[43]
1039. Initiation of Evidentiary Determination. The present law generally adopts the rule that where the admissibility of an item of evidence depends on the existence of a preliminary fact, the party seeking to adduce the evidence must establish the existence of the fact when his opponent raises the issue by asserting non-existence of the fact and consequent inadmissibility.[44] There does not seem to be any good reason why this rule should not apply to confessional evidence. Judges must rely on counsel to act in a proper way (and not indulge in ‘fishing expeditions’) but there is nothing wrong in the defence requiring the prosecution to prove to the appropriate standard that an alleged confession satisfies the necessary evidentiary requirements. It is proposed, therefore, that the question of admissibility must be considered when the defence simply asserts inadmissibility. The prosecution will begin the voir dire.
1040. Confessions—Relevance of Truth of Confession. A number of arguments have been advanced to justify the proposition that an accused giving evidence on a voir dire to determine whether to admit a confession into evidence should not be asked whether the confession was true.
• Irrelevance. It is argued that it is irrelevant to the question of admissibility or exclusion whether a confession is or is not true. Certainly, there is no clear connection between the two things. On the one hand, it might be argued that a confession is more likely to be made voluntarily if it is true than if it is untrue. Furthermore, a person who on his own admission committed the crime would have an excellent motive for making false allegations to the police. On the other hand, if a suspect was in fact compelled to make a confession, it may be argued that he is more likely to make a truthful statement than create fictional admissions. And an accused who truthfully admits his confession is true is likely to be telling the truth when he claims it was obtained improperly. But it is difficult to say that the truth of the confession has absolutely no bearing on its voluntariness. Although it tends to produce contradictory inferences, it should theoretically be up to the tribunal to determine which inference has greater weight. But even if this conclusion is rejected, the question of truth seems clearly relevant under the proposed test of admissibility—whether the confession was made in circumstances which were likely adversely to affect its truth.
• Prejudice. The trial judge may be prejudiced by the accused’s own admission that the confession is true. It is argued that it is asking a lot of a trial judge to expect him to decide an issue of voluntariness without considering the public interest that an admittedly true confession should be presented to the jury.[45] This argument may be valid, but if the voluntariness test is replaced by tests of reliability and public interest this argument does not follow—the judge will be encouraged to consider the public interests in deciding whether to exclude the confession. He could not, therefore, be prejudiced by the information that the confession was true.
• Subsequent Use of Testimony. If the accused admits the confession to be true, then even if the trial judge rules the confession inadmissible, there is nothing to prevent the prosecution from leading evidence before the jury of the further confession made on the voir dire. This problem will be considered below.[46]
• Policy Issue. If the question could be asked, this would lessen the protection the law gives against encroachment upon the personal liberty of the citizen by improper police methods. But it could be argued that where the test of admissibility distinguishes between questions of reliability and public interest, no such loss of protection occurs. Even if the confession is made in such circumstances that it is likely to be true, the trial judge will have to consider whether it should still be excluded in the public interest.
• Unfairness. If the accused’s confession is in fact true, he faces the ‘unfair’ alternatives of committing perjury or of confessing to the crime in open court. Allowing the question is, therefore, an incitement to perjury. But giving an opportunity to a guilty accused to give evidence on oath at the trial proper would be an incitement to perjury on this basis—he faces the alternative of committing perjury, confession to the crime in open court, or remaining silent and having inferences drawn from his silence by the tribunal of fact.
It is proposed, therefore, that it should be open to the prosecution, in cross-examining an accused who gives evidence on a voir dire (to determine whether his alleged confession was made in such circumstances that it is likely to be true) to ask that accused whether the confession is true. But it is also proposed to grant the accused a privilege against self-incrimination in respect of that question.[47]
1041. Use of Accused’s Voir Dire Testimony. There does not seem any reason why evidence adduced on a voir dire in the presence of the tribunal of fact should not be admissible on any issue to which it is relevant. Its use should not be limited to questions of admissibility nor should it have to be repeated. Similarly, it is hard to see why evidence adduced in the voir dire in the absence of the jury should not be repeated in their presence if relevant and otherwise admissible. In the special situation of testimony by an accused during a voir dire, however, it has been argued that such an approach conflicts with the accused’s ‘right to silence’ in the substantive trial. The House of Lords stated in R v Brophy[48] that admissibility of the accused’s voir dire evidence would result in ‘a significant impairment of his so-called ‘right to silence’ at the trial’. An accused cannot be forced to give evidence. But in all jurisdictions, the tribunal of fact may draw all reasonable inferences from such a failure regardless of the question of comment. In some jurisdictions, judicial comment is permitted.[49] It is difficult to see how using evidence of a confession made by an accused during a voir dire impinges upon this ‘right’. He has chosen for tactical reasons to give evidence on the voir dire. He has to live with the consequences of that.[50]
1042. But a policy issue does arise. The House of Lords referred to the public interest that an accused should be completely free to give evidence at the voir dire of improper police behaviour. That freedom is impaired if his evidence can be used against him in at the trial proper—possible use of that evidence constitutes a discouragement against an accused giving evidence on the voir dire. It seems wrong to offer a procedure which the accused would be unwise to take advantage of because of the risk of making an admission which could later be proved against him in the presence of the jury. The New South Wales Law Reform Commission recommended in its Working Paper on Hearsay, on the basis of this argument, that a statement made by the accused on the voir dire should not be admissible in the trial proper.[51] From a public interest perspective, then, the choice is between encouraging accused persons, on the one hand, to give evidence about improper police behaviour and their account of the relevant events and, on the other maximising the amount of relevant evidence admissible on the question of the accused’s guilt in the trial itself.
1043. One option is to permit an exception for credibility purposes. The Privy Council in Wong Kam-Ming v R[52] held that the prosecution can cross-examine an accused during the trial proper as to what he said in the voir dire if the challenged material was admitted and the accused has made statements in the trial inconsistent with his statements on the voir dire. This seems reasonable. The accused should not be allowed to commit a fraud on the court by saying one thing on the voir dire and another under oath at his trial. The Privy Council made an exception to this approach, however, where the confession has been excluded, on that basis that permitting such use of voir dire answers by the accused may make the jury aware of the excluded confession. But it does not seem unfair to an accused to make him run that risk if he chooses to give inconsistent testimony. The US Federal Rules do not deal with this question but Alaska has provided that ‘testimony given by the accused at the hearing is not admissible against him unless inconsistent with his testimony at trial’.[53]
1044. It is, proposed to adopt this option, despite the fact that the accused will have the option of exercising a privilege against self incrimination during the voir dire.
1045. Confession Denied and Allegations of Impropriety. A trial judge, on one view of the present law, is put in the odd position of having to decide whether a confession ‘was made in the exercise of a free choice’ even though the accused says it was not made at all. But this problem is lessened under the proposals with respect to admissions since the trial judge has to decide only whether the confession, on the assumption it was made, was made in circumstances that were not likely to affect its truth. A similar assumption will be made when the judge decides whether to exclude an improperly obtained confession on public policy grounds. That assumption will be made if the trial judge is satisfied that it is reasonably open to find that the admission was made.
1046. Summary of Proposals. The trial judge should decide whether a fact exists when the existence of that fact is a condition precedent to the admissibility of evidence or relevant to the competence and compellability of a witness even when that fact is also a fact in issue.[54] The trial judge should also have a wide discretion as to whether to determine such questions in the absence of the jury. A jury, however, should generally not be present during a hearing to make a preliminary determination as to the admissibility of evidence of admissions or evidence allegedly obtained illegally or improperly.
Other points to note are:
• The rules of admissibility should apply to hearings as to the admissibility of evidence.[55]
• As a general rule, where a party bears the onus of proof as to the existence of a preliminary fact, which is a condition precedent to admissibility of an item of evidence, it is not necessary for an opponent to adduce evidence to support an objection to admissibility before a hearing will be held to determine the question.
• In a hearing to determine whether an admission in a criminal case was made in circumstances which were likely to adversely affect its truth, the prosecution may ask an accused giving evidence in that hearing whether the admission is true. Such question may not otherwise be asked. Even if asked, the accused may exercise his privilege against self-incrimination.
• If a jury was present during an evidentiary hearing, evidence adduced in that hearing may be used in the trial proper, subject to the exclusionary rules, without needing to be repeated.
• If a jury was not present during an evidentiary hearing, a witness’ evidence in that hearing may not be adduced as evidence in the trial proper unless inconsistent with his subsequent evidence in the trial proper.
• On balance, and subject to reforms recommended generally with respect to the unsworn statement, the right of an accused to make un unsworn statement should be available in a voir dire. An accused is unlikely to exercise the right in a voir dire, even if he had the option, because of the difficulty of persuading the judge with evidence that is neither on oath nor subject to cross-examination. However, there may be cases where on the voir dire the accused would, under cross-examination, fail to do justice to himself, failing to convince the court that the confession should be excluded. This could, in turn, lead to his conviction. The same dangers therefore exist as in the trial proper, albeit indirectly.
If he gives sworn testimony in the evidentiary hearing, he may also give unsworn testimony at the hearing.
[1] See cl 46 135 (para 641, 660, 722, 985). 136 (para 659, 689, 713. 991), 142 (para 657-8, 717, 779, 992), 142 (para 605-29).
[2] Other than relevance and privileges (which have their own regime).
[3] This would enable committal depositions to be used by the prosecution without calling witnesses. It was suggested by a committee of the Victorian Chief Justices Law Reform Committee that a reform to that effect would be desirable. It was likely to be used in respect of formal evidence or evidence as to which there was no real contest. See Victorian Chief Justice’s Law Reform Committee Hearsay Evidence Sub-Committee, Submission (26 March 1982).
[4] This proposal is similar to O 33 r 3 Federal Court Rules, s 82 Supreme Court Act 1970 (NSW) and s 200 Court of Petty Sessions (Civil Jurisdiction) Ordinance 1982 (ACT). It differs in that
• it is expressly limited to civil proceedings—in criminal proceedings the admissibility of evidence particularly against the accused should not be determent by law not judicial discretion;
• it refers to specific areas of the rules of evidence—the Federal Court Rules speak of ‘the rules of evidence’. They are not defined; (see definition problems above);
• it lists some of the matters that should be considered. The list is not exhaustive. For example, it may be appropriate to consider whether the ability of the patty against whom the evidence is led to produce answer the evidence.
[5] See comments of Moffitt J regarding use of the power on the Pacific Acceptance case (1970) 92 WN (NSW) 29—cited by DE Harding, ‘Modification of the Hearsay Rule’ (1971) 45 ALJ 531, 565.
[6] For example, McDonald’s System of Australia Pty Ltd v McWilliam’s Wines PA, Ltd (1979) ATPR 40-136; 18, 483. See also Mobil Oil Corporation v Registrar of Trade Marks [1984] VicRp 3; [1984] VR 25.
[7] An example of a dispensing order is that made by consent by Lockhart J in Greynell Investments Pty Ltd v Hunter Douglas Ltd (unreported) CCH Australia Ltd, Australian Trade Practices Reporter, para 15-140.
[8] E Solomon, ‘Views as Evidence’ (1960-61) 34 ALJ 46, 48.
[9] R v Alexander [1979] VicRp 63; [1979] VR 615, 631.
[10] ibid.
[11] ibid.
[12] [1900] UKLawRpCh 195; [1901] 1 Ch 135.
[13] See psychological research referred to above para 419-21; 426; 664-671.
[14] [1951] 2 TLR 1189, 1191 (CA).
[15] (1960-61) 34 ALJ 46, 52.
[16] Although where the tribunal of fact is a judge, it is possible for the judge to put on the record his impressions from the view. But it is not the view, only the judge’s inferences from it, which will then be on the record.
[17] JH Chadbourn (ed) Wigmore on Evidence, Little, Brown & Co, Boston, 1972, vol 4, para 1168.
[18] Address to the International Construction Law Conference, October 1982.
[19] Law Reform Commission of Canada, Report on Evidence, Information Canada, Ottawa, 1975, 100 (LRC Canada); its proposed Evidence Code s 74; and Federal/Provincial Task Force of Canada, Report on Uniform Rules of Evidence, Carswell Co, Toronto, 1932, para 30.4 (Task Force Report).
[20] It may be considered more appropriate to insert these provisions in the relevant Rules of Court, rather than the Evidence Bill.
[21] On occasions it may be relevant to consider whether the property or thing inspected requires expert instruction or knowledge to be properly comprehended.
[22] Failure to comply with these requirements will constitute a ground of appeal.
[23] [1981] HCA 19; (1981) 147 CLR 221.
[24] This appears to be the view of some of the High Court in Kozul.
[25] This approach was taken by the trial judge in Kozul and also received some support from the High Court.
[26] Clearly the distinction is based on a static/dynamic dichotomy. But there is a grey area—compare Kozul itself.
[27] RO Lempert & SA Saltzburg, A Modern Approach to Evidence, West Publishing, St Paul, 1977. 1134, referring to J Maguire & CS Epstein, ‘Preliminary Questions of Fact in Determining Admissibility of Evidence’ (1927) 40 Harv L Rev 392, 393-5, 412
[28] eg, in jurisdictions where marriage is a defence to rape but not assault, where the accused is charged with both and a question of spousal non-compellability arises.
[29] JB Weinstein & MA Berger, Weinstein’s Evidence, Matthew Bender, New Work, (982, 104-22.
[30] LRC Canada 55; s 7(3) of the Canadian proposed Evidence Code provided that ‘where a preliminary fact is also a fact in issue in the proceedings, it is for the trier of fact to determine’.
[31] eg, hearing a tape recording before authentication—see Weinstein & Berger, 901-70.
[32] R v Anderson (1929) 21 Cr App R 178, 183 (Lord Hewart CJ).
[33] JA Gobbo, D Byrne & JD Heydon, Cross on Evidence, 2nd Aust edn, Butterworths, Sydney, (979, para 3.8.
[34] LRC Canada, proposed Evidence Code, s 7(4).
[35] id, s 4.
[36] Task Force Report, para 36.3.
[37] See Weinstein & Berger, 104-5.
[38] id, 104-23.
[39] id, 104-6.
[40] ibid.
[41] ib, 104-25.
[42] ibid.
[43] Part III of the Draft Bill.
[44] While the general rule is that the trial judge will determine a question of preliminary fact when it is raised by a party in the case of an unrepresented accused, the judge must be able to act of his own motion: See MacPherson v R [1981] HCA 46; (1981) 55 ALJR 594.
[45] FM Neasey ‘Cross-Examination of the Accused on the Voir Dire’ (1960-61) 34 ALJ 110, 111.
[46] See below, para 1041.
[47] This, apparently, is the position in Queensland, and probably also in New South Wales and Tasmania.
[48] [1982] AC 476, 481.
[49] See Appendix C, para 11 and 551-3, 555.
[50] In some jurisdictions, moreover, he has a privilege against self-incrimination in respect of particular questions on the voir dire. See Appendix C para 325 (text accompanying fn 50-52).
[51] New South Wales Law Reform Commission, Working Paper, The Rule Against Hearsay, Govt Printer, Sydney, 1976, para 3.159 on s 14J(1)(c)(iii).
[52] [1980] AC 247.
[53] Weinstein & Berger, 104-93.
[54] See above, para 1032-4.
[55] Note that the court in civil cases may dispense with their application where considered appropriate (see above, para 1025).
• Draft Evidence Bill 19[ ]
• Draft Evidence (Notice of Hearsay) Regulations
TABLE OF PROVISIONS
PART I—PRELIMINARY
Clause
1. Short title
2. Commencement
3. Interpretation
4. References to businesses
5. References to examination in chief, &c.
6. References to civil penalties
7. Unavailability of persons and documents
8. Representations in documents
9. Application of Act
10. Territories
11. Act to bind Crown
12. Effect of other laws
PART II—WITNESSES
Division 1—Competence and compellability of witnesses
13. Competence and compellability
14. Lack of capacity
15. Sovereign, &c., not compellable
16. Judges and jurors
17. Competence and compellability of defendant, &c., in criminal proceedings
18. Compellability of spouses, &c., in criminal proceedings
19. Compellability of spouses in civil proceedings
Division 2—Sworn and unsworn evidence
20. Evidence of witnesses to be on oath or affirmation
21. Unsworn evidence in criminal proceedings
22. Comment on unsworn evidence
23. Court to advise witnesses
Division 3—Manner of giving evidence
Subdivision A—General rules
24. Parties may question witnesses
25. Examination in chief to be completed before other questioning
26. Manner and form of questioning witnesses
27. Interpreters
28. Deaf and mute witnesses
29. Reviving memory in court
30. Reviving memory out of court
31. Direction not to extend to certain documents
32. Effect of calling for production of documents
Subdivision B—Examination in chief and re-examination
33. Leading questions
34. Unfavourable, &c., witnesses
35. Limits on re-examination
Subdivision C—Cross-examination
36. Witness called in error
37. Improper questions
38. Leading questions
39. Prior inconsistent statements of witness
40. Prior statements of other persons
41- Production of documents
42. Certain matters to be put to witness
PART III—ADMISSION, EXCLUSION AND USE OF EVIDENCE
Division 1—Relevant evidence
43. Relevant evidence
44. Relevant evidence to be admissible
45. Provisional relevance
46. Inferences as to relevance
Division 2—Documents
47. Interpretation:
48. “Best evidence rule” abolished
49. The contents of documents
50. Admissions
51. Unavailable documents
52. Copies. &c., of documents
53. Business and public records
54. Documents in foreign countries
Division 3—Hearsay evidence
Subdivision A—The hearsay rule
55. Hearsay evidence
Subdivision B—“First-hand” hearsay
56. Restriction to “first-hand” hearsay
57. Civil proceedings: maker not available
58. Civil proceedings: maker available
59. Criminal proceedings: maker not available
60. Criminal proceedings: maker available
61. Notice to be given
Subdivision C—Other hearsay
62. Business records
63. Contents of tags, labels, &c.
64. Telecommunications
65. Reputation as to certain matters
Division 4—Opinion evidence
66. Opinion evidence
67. Lay opinions
68. Opinions based on special knowledge, &c.
69. Ultimate issue rule abolished
Division 5—Admissions
70. Hearsay and opinion rules not to apply
71. Admissions influenced by violence, &c.
72. Criminal proceedings: admissions by defendant
73. Records of oral questioning
74. Admissions made with authority
75. Proof of making of admission
76. Evidence of silence
Division 6—Evidence of judgments and convictions
77. Evidence of judgments and convictions
78. Exceptions
79. Savings
Division 7—Evidence of character and prior conduct
Subdivision A—Preliminary
80. Interpretation
81. Application
Subdivision B—Credibility
82. Credibility evidence
83. Cross-examination as to credibility
84. Cross-examination of accused as to credibility
85. Rebutting denials by other evidence
86. Where unsworn evidence given
87. Application of certain provisions to maker of representations
88. Re-establishing credibility
Subdivision C—Prior Conduct
89. Interpretation
90. Subdivision not to apply to credibility
91. Conduct (including of accused) to prove tendency
92. Conduct (including of accused) to prove improbability of co-incidence
93. Prosecution evidence of conduct of accused: further protections
Subdivision D—Reputation and opinion
94. Reputation or opinion as to facts in issue or credibility
95. Criminal proceedings
Division 8—Identification evidence
96. Application of Division
97. Identification evidence
98. Photographic, &c., identification
99. Where legal practitioner not present
100. Whether identification parade reasonable
101. Directions to jury
Division 9—Privileges
102. Interpretation
103. Confidential communications and records
104. Self-incrimination in other proceedings
105. Privilege in respect of legal advice and litigation, &c.
106. Loss of privilege in respect of legal advice and litigation, &c.
107. Court to inform of rights, &c.
108. Certain evidence inadmissible
Division 10—Evidence excluded in the public interest
109. Reasons for judicial, &c., decisions
110. Matters of state
111. Settlement negotiations
112. Court to inform of rights, &c.
113. Certain evidence inadmissible
Division 11—Discretions to exclude evidence
114. General discretion
115. Criminal proceedings: prejudicial evidence
116. Improperly obtained evidence
PART IV—OTHER ASPECTS OF PROOF
Division 1—Judicial notice
117. Matters of law
118. Matters of common knowledge, &c.
119. Certain Crown certificates
Division 2—Facilitation of proof
120. Evidence produced by machines, processes, &c.
121. Attestation of documents
122. Gazettes, &c.
123. Seals and signatures
124. Public documents
125. Documents produced from proper custody
126. Labels, &c.
127. Posts and telecommunications
128. Official statistics
Division 3—Standard of proof
129. Case of party
130. Admissibility of evidence
131. Matters to be taken into account
132. Prosecution case
Division 4—Corroboration
133. Corroboration requirements abolished
Division 5—Warnings
134. Unreliable evidence
PART V—MISCELLANEOUS
135. Inferences
136. Proof of certain matters by affidavit &c.
137. Request to produce documents or call witnesses
138. Views, &c.
139. View, &c., to be evidence
140. The voir dire
141. Waiver of rules of evidence
142. Leave, &c., may be given on terms
143. Additional powers on discovery and inspection
144. Conferral of jurisdiction
145. Regulations
SCHEDULE
A BILL FOR An Act relating to evidence in proceedings in Federal courts and in courts of the Territories
BE IT ENACTED by the Queen, and the Senate and the House of Representatives of the Commonwealth of Australia, as follows:
PART I—PRELIMINARY
Short title
1. This Act may be cited as the Evidence Act 19[ ].
Commencement
2. This Act shall come into operation on a date to be fixed by Proclamation.
Interpretation (Commentary: 515-9, 605, 684, 755, 770, 830, 1007.)
3. In this Act, unless the contrary intention appears—
“admission” means a previous representation made by a person who is or becomes a party to a proceeding, being a representation that is adverse to the person’s interest in the outcome of the proceeding;
“case”, in relation to a party, means the facts in issue in respect of which the party bears the burden of proof;
“civil proceeding” means a proceeding in a court, other than a criminal proceeding;
“criminal proceeding” means a prosecution in a court for an offence;
“cross-examiner” means a party who is cross-examining a witness;
“document” means—
(a) any thing on which there is writing;
(b) a map, plan, drawing or photograph; and
(c) a thing from which sounds or visual images are capable, with or without the aid of a device, of being reproduced, and also includes a part of a document as so defined and a copy, reproduction or duplicate of a document or of a part of a document;“enactment” means an Act, an Act or Ordinance of a Territory, an Imperial Act or an Act of a State that is continued in force in a Territory or regulations, by-laws or rules made under such an Act or Ordinance;
“identification evidence”, in relation to a criminal proceeding, means evidence that is—
(a) an assertion by a person to the effect that a defendant was, or resembles a person who was, present at or near a place where—
(i) the offence for which the defendant is being prosecuted was committed; or
(ii) an act that is connected with that offence was done, at or about the time at which the offence or the act was committed or done, being an assertion that is based wholly or partly on what the first-mentioned person saw, heard or otherwise noticed at that place and time; or
(b) a report (whether oral or in writing) of an assertion as mentioned in paragraph (a);
“investigating official” means a police officer or a person whose functions or duties include functions or duties in respect of the prevention or investigation of offences;
“Judge”, in relation to a proceeding, means the Judge, Magistrate or other person before whom the proceeding is being held;
“leading question” means a question asked of a witness that—
(a) directly or indirectly suggests a particular answer to the question; or
(b) assumes the existence of a fact the existence of which is in dispute in the proceeding and as to the existence of which the witness has not given evidence before the question is asked;
“legal or administrative proceeding” means—
(a) a proceeding as defined by this sub-section; and
(b) a proceeding (however described)—
(i) in a court of a State or Territory or of a foreign country; or
(ii) before a person or body (other than a court) authorised by law, including a law of a State or Territory or of a foreign country, or by consent of parties, to hear and receive evidence,
and includes a proceeding in a coroner’s court and a proceeding in a court-martial;
“legal practitioner” means a barrister or a solicitor;
“Magistrate” includes a Justice of the Peace;
“offence” includes an offence against or arising under a law of or in force in a State or Territory;
“official questioning” means questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence;
“person who is being prosecuted for a related offence”, in relation to a defendant in a criminal proceeding, means a person against whom a prosecution has been instituted (being a prosecution that has not been completed or terminated) for—
(a) an offence that arose in relation to the same events as those in relation to which the offence for which the defendant is being prosecuted arose; or
(b) an offence that relates to or is connected with the offence for which the defendant is being prosecuted;
“police officer” means a member of the Australian Federal Police or of the police force of a State or Territory;
“previous representation” means a representation made otherwise than in the course of the giving of evidence in the proceeding in which evidence of the representation is sought to be given;
“prior consistent statement”, in relation to a witness, means a previous representation that is consistent with evidence that the witness gives;
“prior inconsistent statement”, in relation to a witness, means a previous representation that is inconsistent with evidence that the witness gives;
“probative value”, in relation to evidence, means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue;
“public document” means a document that—
(a) forms part of the records of—
(i) the Crown in any of its capacities;(ii) the government of a foreign country; or
(iii) a person or body holding office or exercising power under or by virtue of the Constitution or of a law, whether of the Commonwealth, a State, a Territory or of a foreign country; or(b) is being kept by or on behalf of the Crown, such a government or such a person or body,
and includes the records of the proceedings of a House of the Parliament, a Legislative Assembly of a Territory (including the Australian Capital Territory House of Assembly), a House of the Parliament of a State or the legislature of a foreign country;
“representation” includes an oral representation, an express or implied representation and a representation to be inferred from conduct;
“sworn evidence” means evidence given by a person who, before he or she gave it, had sworn an oath or made an affirmation in accordance with this Act;
“telecommunications installation” and “telecommunications service” have the meanings that they respectively have under the Telecommunications Act 1975;
“unsworn evidence” means evidence that is not sworn evidence;
“witness” includes a party who is giving evidence.
References to businesses (Commentary: 517)
4. (1) A reference in this Act to a business includes a reference to—
(a) a profession, calling, occupation, trade or undertaking;
(b) an activity engaged in or carried on by—
(i) the Crown in any of its capacities; or
(ii) a foreign country;
(c) an activity engaged in or carried on by a person or body holding office or exercising power under or by virtue of the Constitution or of a law, whether of the Commonwealth, a State, a Territory or of a foreign country, being an activity carried on or engaged in the performance of the duties of the office or in the exercise of the power; and
(d) the proceedings of a House of the Parliament, a Legislative Assembly of a Territory (including the Australian Capital Territory House of Assembly), a House of the Parliament of a State or the legislature of a foreign country.
(2) A reference in this Act to a business also includes a reference to—
(a) a business that is not engaged in or carried on for profit; and
(b) a business engaged in or carried on outside Australia.
References to examination in chief, &c. (Commentary 605)
5. (1) Unless the contrary intention appears, a reference in this Act to—
(a) examination of a witness in chief is a reference to the questioning of a witness by the party who called the witness to give evidence, not being questioning that is re-examination;
(b) cross-examination of a witness is a reference to the questioning of a witness by a party other than the party who called the witness to give evidence;
(c) re-examination of a witness is a reference to the questioning of a witness by the party who called the witness to give evidence, being questioning conducted after the cross-examination of the witness by some other party,
and “examine in chief”, “cross-examine” and “re-examine” have corresponding meanings.
(2) Where a party has recalled a witness who has already given evidence, a reference in this Act to re-examination of a witness does not include a reference to questioning of the witness by that party before the witness is questioned by some other party.
References to civil penalties (Commentary 862)
6. For the purposes of this Act, a person shall be taken to be liable to a civil penalty if, in a legal or administrative proceeding (not being a prosecution for an offence), the person would be liable to a penalty arising under a law of or in force in the Commonwealth, a State, a Territory or a foreign country.
Unavailability of persons and documents (Commentary 651, 678, 687, 691)
7. (1) For the purposes of this Act, a person shall be taken not to be available to give evidence about a fact if—
(a) the person is dead;
(b) the person is not competent to give the evidence about the fact, it would not be lawful for the person to give evidence about the fact or the evidence, under a provision of this Act, may not be given;(c) all reasonable steps have been taken to find the person or to secure his or her attendance, but without success; or
(d) all reasonable steps have been taken to compel the person to give the evidence, but without success,
and in all other cases the person shall be taken to be available to give evidence about the fact.
(2) For the purposes of this Act—
(a) a document that cannot be found after reasonable enquiry and search shall be taken not to be available to a party;
(b) a document that has been destroyed shall be taken not to be available to a party if it was destroyed by the party or by a person on behalf the party otherwise than in bad faith or was destroyed by some other person; and
(c) any other document shall be taken not to be available to a party if-
(i) it cannot be obtained by any judicial procedure of the court;
(ii) it is not in the possession or under the control of the party and is in the possession or under the control of some other party who knows or might reasonably be supposed to know that evidence of the contents of the document is likely to be relevant;
(iii) it is not in the possession or under the control of the party and, at a time when it was in the possession or under the control of some other party, that party knew or might reasonably be supposed to have known that evidence of the contents of the document was likely to be relevant; or
(iv) the contents of the document are not closely related to an issue that is important in the proceeding, and in all other cases the document shall be taken to be available to the party.
Representations in documents (Commentary 684)
8. Where a representation is contained in a document and—
(a) was written, made, dictated or otherwise produced by a person; or
(b) was recognised by a person as his or her representation by signing, initialling or otherwise marking the document, the representation shall be taken to have been made by the person.
Application of Act (Commentary 513-4, 516)
9. (1) This Act applies to and in relation to all proceedings in a federal court or in a court of a Territory other than the Northern Territory, including such a proceeding that—
(a) relates to bail;
(b) is an interlocutory proceeding or a proceeding of alike kind; and
(c) is heard in chambers.
(2) This Act does not apply to or in relation to—
(a) a proceeding the hearing of which began before the commencement of this Act;
(b) an appeal from a court of a State, including an appeal from a court of a State in relation to the exercise of federal jurisdiction; or
(c) an appeal from a court of the Northern Territory.
Territories (Commentary 513)
10. This Act extends to each external Territory.
Act to bind Crown
11. This Act binds the Crown in each of its capacities.
Effect of other laws (Commentary 512, 604)
12. (1) The provisions of an Act other than this Act, or of regulations, by-laws or rules in force under such an Act, have effect notwithstanding this Act.
(2) It is the intention of the Parliament that, subject to sub-section (3), this Act is not, except in so far as this Act, either expressly or by necessary intendment, otherwise provides, to affect the operation of a law of a State or a Territory.
(3) Divisions 1 and 2 of Part II, Part III and Divisions 1, 3 and 4 of Part IV apply to the exclusion of a law (including the principles and rules of common law and of equity) in force in a State or Territory.
PART II—WITNESSES
Division 1—Competence and compellability of witnesses
Competence and compellability (Policy issues: 525; Commentary: 522, 525)
13. Except as otherwise provided by this Act—
(a) every person is competent to give evidence; and
(b) a person who is competent to give evidence about a fact is compellable to give that evidence.
Lack of capacity (Policy issues 521; Commentary 522-4, 595)
14. (1) A person who is incapable of understanding that, in giving evidence, he or she is under an obligation to give truthful evidence is not competent to give evidence.
(2) A person who is incapable of giving a rational reply to a question about a fact is not competent to give evidence about the fact.
(3) Where—
(a) a person is incapable of hearing or understanding, or of communicating a reply to, a question about a fact; and
(b) that incapacity cannot be overcome without undue cost or undue delay, the person is not competent to give evidence about the fact.
(4) Unless it appears otherwise, it shall be presumed that a witness is not incompetent by reason of sub-section (1), (2) or (3).
(5) Evidence that has been given by a witness does not become inadmissible by reason only that, before the witness finishes giving evidence, he or she ceases to be competent to give evidence.
(6) For the purpose of determining a question arising under this section, the court may inform itself as the court thinks fit.
Sovereign, &c., not compellable (Commentary 526)
15. (1) The Sovereign, the Governor-General, the Governor of a State, the Administrator of a Territory, a foreign sovereign or the Head of State of a foreign country is not compellable to give evidence.
(2) Where, if a member of a House of the Parliament, a member of the legislature of a State or of a Territory or a member of the Australian Capital Territory House of Assembly were to be compelled to give evidence, the member would thereby be prevented from attending—
(a) a sitting of the House, legislature or Assembly of which he or she is a member; or
(b) a meeting of a committee of such a House, legislature or Assembly, the member is not compellable so to give evidence.
Judges and jurors (Policy issues: 527; Commentary: 527)
16. (1) A person who is acting as a judge or juror in a proceeding is not competent to give evidence in the proceeding.
(2) A person who is or was acting as a judge in a legal or administrative proceeding is not compellable to give evidence about the proceeding unless the court gives leave.
Competence and compellability of defendant, &c., in criminal proceedings (Policy issues: 528, 555-8; Commentary 528, 555-8)
17. (1) This section applies only in a criminal proceeding.
(2) A defendant is not competent to give evidence as a witness for the prosecution.
(3) A person who is being prosecuted for a related offence—
(a) is not compellable to give evidence; and
(b) may not give evidence as a witness for the prosecution without the leave of the court.
(4) The court shall give leave under paragraph (3)(b) only in exceptional circumstances.
(5) Where it appears to the court that a witness called by the prosecutor may be a person who is being prosecuted for a related offence, the court shall satisfy itself (if there is a jury, in the absence of the jury) that the witness is aware of the effect of sub-section (3).
(6) In determining whether to give leave, the matters that the court shall take into account include—
(a) the reason why the prosecution of the person who is being prosecuted for the related offence has not been completed or terminated;
(b) whether the completion or termination of that prosecution before the person gives evidence is reasonably practicable; and
(c) whether the person has or may have a motive to misrepresent a matter as to which he or she is to be called to give evidence.
(7) Where a defendant has not given evidence, the Judge or a party other than the prosecutor may comment on the failure of the defendant to give evidence, but the comment shall not suggest that the defendant failed to give evidence because the defendant believed that he or she was guilty of the offence concerned.
Compellability of spouses, &c., in criminal proceedings (Policy issues: 529-36, 847-51, 895-7, 900-1; Commentary: 536-9, 549-50, 554, 559, 850, 898-9, 902)
18. (1) This section applies only in a criminal proceeding.
(2) A person who is the spouse, the de facto spouse, a parent or a child of a defendant may object to being required to give evidence as a witness for the prosecution.
(3) The objection shall be made before the witness gives evidence or as soon as practicable after the witness becomes aware of his or her right so to object, whichever is the later.
(4) A witness who is the spouse, the de facto spouse, a parent or a child of a defendant may object to being required to give evidence of a communication made between the witness and that defendant.
(5) Where it appears to the court that a witness may have a right to make an objection under sub-section (2) or (4), the court shall satisfy itself that the witness is aware of that provision as it may apply to the witness.
(6) If there is a jury, the court shall hear and determine the objection in the absence of the jury.
(7) Where, upon an objection under sub-section (2) or (4), the court finds that the harm that would be caused, whether directly or indirectly, to—
(a) the person who made the objection; or
(b) the relationship between that person and the defendant concerned,
by the giving of evidence or by the giving of evidence of the communication, as the case may be, outweighs the desirability of obtaining the evidence, the person shall not be required to give the evidence.
(8) For the purposes of sub-section (7), the matters that the court shall take into account include—
(a) the nature of the offence for which the defendant is being prosecuted;
(b) the importance of any evidence that the person might give and the weight that is likely to be attached to it;
(c) whether any other evidence concerning the matters to which the evidence of the witness would relate is reasonably available to the prosecutor;
(d) the nature of the relationship between the defendant and the person; and
(f) whether, in giving the evidence, the witness would have to disclose matter that was received by the witness in confidence from the defendant.
(9) Where a person has made an objection under this section, the prosecutor may not comment on the objection, on the decision of the court in relation to the objection or on the failure of the person to give evidence.
(10) In this section—
(a) a reference to a child is a reference to a child of any age and includes a reference to an adopted child and an ex-nuptial child;
(b) a reference to a parent, in relation to a person, includes a reference to an adoptive parent of that person and, in relation to a person who was an ex-nuptial child, the natural father of that person; and
(c) a reference to the de facto spouse of a person is a reference to a person of the opposite sex to the first-mentioned person who is living with the first-mentioned person as that person’s husband or wife although they are not legally married to each other.1
Compellability of spouses in civil proceedings (Policy issue: 947-51, 895-97; Commentary: 898-9 )
19. In a civil proceeding (not being a proceeding concerning the custody, guardianship or wardship of a child or a proceeding for access to a child), a person who is married is not compellable to give evidence of a communication between the person and his or her spouse made during the marriage.
Division 2—Sworn and unsworn evidence
Evidence of witnesses to be on oath or affirmation (Policy issue: 560-70; Commentary: 524, 571-5, 593, 595)
20. (1) Except as otherwise provided by this Division, a person may not give evidence, or act as an interpreter, in a proceeding unless the person has sworn an oath or made an affirmation in accordance with the appropriate form in the Schedule or in accordance with a similar form.
(2) It is for the person who is to give evidence to choose whether to swear an oath or make an affirmation.
(3) It is not necessary that a religious text be used in swearing an oath.
(4) The court may direct a person who is to give evidence to make an affirmation if—
(a) the person refuses to choose whether to swear an oath or make an affirmation; or
(b) it is not reasonably practicable for the person to swear an appropriate oath.
(5) An oath is effective for the purposes of this section notwithstanding that the person who swore it—
(a) did not have a religious belief or did not have a religious belief of a particular kind; or
(b) did not understand the nature and consequences of the oath.
(6) A person who is called merely to produce a document or object to the court need not swear an oath or make an affirmation before doing so.
Unsworn evidence in criminal proceedings (Policy issues: 584-91; Commentary: 592)
21. (1) In a criminal proceeding, a defendant may give unsworn evidence.
(2) A defendant who gives unsworn evidence may not also give sworn evidence unless there are special circumstances and the court gives leave.
(3) In giving unsworn evidence, the defendant may read from a statement in writing and may use notes and, where a legal practitioner appears for the defendant, the legal practitioner may assist the defendant to prepare the statement or notes.
(4) Where the defendant is unable to read from a statement in writing, the legal practitioner may, with the leave of the court, read the statement to the court.
(5) After unsworn evidence has been given, the legal practitioner may, with the leave of the court, question the defendant as though in examination-in-chief and evidence so adduced shall be taken to be part of the unsworn evidence given by the defendant.
(6) A defendant shall not be cross-examined in relation to unsworn evidence that he or she has given.
(7) Unsworn evidence given by a defendant in a criminal proceeding may not be used for or against any other defendant in the proceeding.
(8) Sub-sections (6) and (7) do not apply if the defendant gives sworn evidence.
(9) Without affecting any other application of the Crimes Act 1914, sections 35 and 36 of that Act apply in relation to unsworn evidence as they apply in relation to sworn evidence.
Comment on unsworn evidence (Commentary: 592)
22. (1) In a criminal proceeding, where a defendant has given unsworn evidence and has not also given sworn evidence, the Judge or a party other than the prosecutor may comment on the fact that the defendant failed to give sworn evidence.
(2) The comment shall not suggest that—
(a) the defendant did not give sworn evidence, or did not offer himself or herself for cross-examination, because the defendant believed that he or she was guilty of the offence concerned; or
(b) unsworn evidence is, by reason only that it is unsworn evidence or that it was not subject to cross-examination, necessarily less persuasive than sworn evidence.
Court to advise witnesses (Commentary: 592)
23. (1) Except as mentioned in sub-section (2), before a witness gives evidence, the court shall inform the witness that witnesses
have a choice of swearing an oath or making an affirmation before giving evidence.
(2) Before a defendant in a criminal proceeding gives evidence, the court shall inform that defendant that—
(a) defendants in criminal proceedings need not swear an oath or make an affirmation before giving evidence, but a defendant in such a proceeding who gives evidence without first having sworn an oath or made an affirmation may not also give sworn evidence without the leave of the court; and
(b) witnesses have a choice of swearing an oath or making an affirmation before giving evidence.
(3) Where a defendant in a criminal proceeding is not represented in the proceeding by a legal practitioner, the court shall, before the defendant gives evidence, inform the defendant, (if there is a jury, in the absence of the jury) that—
(a) sworn evidence may be more persuasive than unsworn evidence; and
(b) it is a serious offence knowingly to give false evidence, whether it is sworn evidence or not.
Division 3—Manner of giving evidence
Subdivision A—General rules
Parties may question witnesses (Policy issue: 596-603; Commentary: 605)
24. Except as otherwise provided by this Division, a party may question any witness.
Examination in chief to be completed before other questioning (Policy issue: 596-603; Commentary 605-6)
25. Unless the court otherwise orders—
(a) cross-examination of a witness shall not take place before the examination-in-chief of the witness; and
(b) re-examination of a witness shall not take place until all other parties who wish to do so have cross-examined the witness.
Manner and form of questioning witnesses (Policy issues: 596-603; Commentary: 609)
26. (1) Except as otherwise provided by this Division or as directed by the court, a party may question a witness in any manner the party thinks fit.
(2) Evidence may be given in whole or in part in narrative form and the court may direct that it be so given.
Interpreters (Policy issues: 596-603, 610; Commentary: 611-3)
27. A witness may give evidence about a fact through an interpreter unless the witness can understand and speak the English language sufficiently to enable the witness to understand fully, and to make an adequate reply to, questions that may be put about the fact.2
Deaf and mute witnesses (Policy issues: 596-603, 610; Commentary: 612)
28. (1) A witness who cannot adequately hear may be questioned in any appropriate manner.
(2) A witness who cannot adequately speak may give evidence by any appropriate means.
Reviving memory in court (Policy issues: 596-603; Commentary: 606, 614-5)
29. (1) A witness may not, in the course of giving evidence, use a document to try to revive his or her memory about a fact without the leave of the court.
(2) The matters that the court shall take into account in determining whether to give leave include—
(a) whether the witness will be able to recall the fact adequately without using the document to try to revive his or her memory; and
(b) whether so much of the document as the witness proposes so to use is, or is a copy of, a document that—
(i) was written or made by the witness at a time when the events recorded in it were fresh in his or her memory; or
(ii) was, at such a time, found by the witness to be accurate.
(3) Where a witness has, while giving evidence, used a document to try to revive his or her memory about a fact, the witness may, with the leave of the court, read aloud, as part of his or her evidence, so much of the document as relates to that fact.
(4) Where leave has been given as mentioned in this section, the court shall, on the request of a party, give such directions as the court thinks fit to ensure that so much of the document as relates to the proceeding is produced to that party.
Reviving memory out of court (Policy issues: 596-603; Commentary: 614, 616)
30. (1) The court may, if a party so requests, give such directions as are appropriate to ensure that all the documents and other things used by a witness otherwise than while giving evidence to try to revive his or her memory are produced to the party for the purposes of the proceeding.
(2) Where, without reasonable excuse, the directions have not been complied with, the court may refuse to admit the evidence given by the witness so far as it concerns a fact as to which the witness so tried to revive his or her memory.
Direction not to extend to certain documents (Policy issue: 596-603; Commentary: 616)
31. (1) Where, by virtue of section 105, evidence of the contents of a document may not be given, a direction under sub-section 30(1) shall not be made so as to require the production of the document.
(2) The objection required under section 105 is also required in connection with the operation of sub-section (1).
Effect of calling for production of documents (Policy issues: 596-603; Commentary: 617)
32. (1) A party shall not be required to tender a document by reason only that the party, whether under this Act or otherwise, called for the document to be produced to the party or inspected it when it was so, produced.
(2) Where a document so called for has been produced or inspected and the party to whom it was produced or who inspected it has failed to tender it, the party who produced it is not for that reason entitled to tender it.
Subdivision B—Examination in chief and re-examination
Leading questions (Policy issues: 596-603, 618; Commentary: 606, 619-20)
33. A leading question, other than a question that relates to a matter introductory to the evidence of the witness or to a matter that is not in dispute, shall not be put to a witness in examination in chief or in re-examination unless the court gives leave.
Unfavourable, &c., witnesses (Policy issues: 596-603, 621-6; Commentary: 606, 621, 622, 625-7)
34. (1) Where a witness gives evidence that is unfavourable to the party who called the witness, that party may, with the leave of the court, question the witness about that evidence as though the party were cross-examining the witness.
(2) Where, in examination in chief, a witness appears to the court not to be making a genuine attempt to give evidence about a matter of which the witness may reasonably be supposed to have knowledge, the party who called the witness may, with the leave of the court, question the witness about that matter as though the party were cross-examining the witness.
(3) The questioning shall not take place until after the other parties have had an opportunity to cross-examine the witness.
(4) The matters that the court shall take into account in determining whether to give leave under this section include—
(a) the matters on which and the extent to which the witness has been questioned by some other party; and
(b) whether the party gave notice at the earliest opportunity of his or her intention to seek leave.
Limits on re-examination (Policy issues: 596-603, 628; Commentary: 606, 628-9)
35. (1) On re-examination, a witness may be questioned as to matters arising out of or related to evidence given by the witness in cross-examination and other questions may not be put to the witness without the leave of the court.
(2) Without limiting the generality of sub-section (1), questions that may be put to a witness in re-examination include questions as to—
(a) answers that the witness has given to questions put in cross-examination; or
(b) an inconsistency or apparent inconsistency between—
(i) the evidence given by the witness in examination in chief and the evidence given by the witness in cross-examination; or
(ii) the evidence of the witness and a previous representation made by the witness, being a representation as to which evidence has been given in the proceeding.
Subdivision C—Cross-examination
Witness called in error (Policy issues: 596-603, 630; Commentary: 630)
36. A party may not cross-examine a witness who has been called in error by some other party and has not been questioned by that other party about a matter relevant to a question to be determined in the proceeding.
Improper questions (Policy issues: 596-603, 630; Commentary: 631)
37. If a misleading question, or a question that is unduly annoying, harassing, intimidating, offensive oppressive or repetitive is put to a witness in cross-examination, the court may disallow the question or inform the witness that it need not be answered.
Leading questions (Policy issues: 596-603, 618, 632; commentary 632)
38. (1) Where a party puts a leading question to a witness in cross-examination, the court may disallow the question or direct the witness not to answer it.
(2) In determining whether to disallow the question or give such a direction, the matters that the court shall take into account include the extent to which—
(a) the evidence that has been given by the witness in examination in chief tends to prove a fact in respect of which the party who is cross-examining the witness bears the burden of proof;
(b) the witness is sympathetic to that party, either generally or in relation to a particular matter; and
(c) the facts will be better ascertained if leading questions are not used.
(3) Sub-section (1) does not limit the power of the court to control leading questions.
Prior inconsistent statements of witness (Policy issues: 596-603, 636; Commentary: 636)
39. (1) It is not necessary that complete particulars of a prior inconsistent statement alleged to have been made by a witness be given to the witness, or that a document that contains a record of the statement be shown to the witness, before the witness may be cross-examined about the statement.
(2) Where, in cross-examination, a witness does not admit that he or she has made a prior inconsistent statement, the party who cross-examined the witness may not adduce evidence of the statement otherwise than from the witness unless, in the cross-examination, that party—
(a) gave the witness such particulars of the statement as are reasonably necessary to enable the witness to identify the statement; and
(b) drew the attention of the witness to so much of the statement as is inconsistent with the evidence of the witness.
(3) For the purposes of adducing that evidence, the party may re-open the case.
Prior statements of other persons3 (Policy issues: 596-603, 636; Commentary: 636)
40. (1) Except as provided by this section, a cross-examiner may not, in cross-examination of a witness, use a previous representation alleged to have been made by a person other than the witness.
(2) Where evidence of such a representation has been admitted or the court is satisfied that it will be admitted, the cross-examiner may question the witness about it and its contents.
(3) Where—
(a) such a representation is recorded in a document; and
(b) evidence of the representation has not been admitted and the court is satisfied that, if it were to be adduced, it would not be admitted, the document may be used as follows:
(c) the document shall be produced to the witness;
(d) neither the cross-examiner nor the witness shall identify the document or disclose its contents; and
(e) the witness shall be asked whether, having examined the contents of the document, he or she adheres to the evidence that he or she has given.
Production of documents (Policy issues: 596-603, 636; Commentary: 636)
41. (1) Where a cross-examiner—
(a) is cross-examining or has cross-examined a witness about a prior inconsistent statement alleged to have been made by the witness; or
(b) in cross-examination of a witness, is using or has used a previous representation alleged to have been made by some other person,
being a statement or representation that is recorded in a document, the cross-examiner shall, if the court so orders or if some other party so requires, produce the document, or such evidence of the contents of the document as is available to the cross-examiner, to the court or to that other party.
(2) Where a document or evidence has been so produced, the court may make such use of it in the proceeding as it sees fit and may, subject to this Act, admit it notwithstanding that it has not been tendered by a party.
(3) A cross-examiner shall not, by reason only of having produced a document to a witness who is being cross-examined, be required to tender the document.
Certain matters to be put to witness (Policy issues: 596-603, 633-4; Commentary: 606, 634-5)
42. Where a party adduces evidence—
(a) that contradicts evidence already given in examination in chief by a witness called by some other party; or
(b) about a matter as to which a witness who has already been called by some other party was able to give evidence in examination in chief, and the evidence adduced has been admitted, the court may, if the first-mentioned party has failed to cross-examine the witness about the matter to which the evidence relates, give leave to the party who called the witness to re-call the witness to be questioned about the matter.
PART III—ADMISSION, EXCLUSION AND USE OF EVIDENCE
Division 1—Relevant evidence
Relevant evidence (Policy issues: 638-9; Commentary: 641-2)
43. (1) The evidence that is relevant in a proceeding is evidence
that, if it were accepted, could rationally affect, whether directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding.
(2) In particular, evidence shall not be taken to be irrelevant by reason only that it relates to—
(a) the credibility of a party or a witness;
(b) the admissibility of other evidence; or
(c) a failure to adduce evidence.
Relevant evidence to be admissible (Policy issues: 638-9; Commentary: 640)
44. Evidence that is relevant in a proceeding is, except as otherwise provided by this Act, admissible in the proceeding and evidence that is not relevant in the proceeding is not so admissible.
Provisional relevance (Policy issues: 638-9, 979-81; Commentary: 646, 982-4)
45. (1) Where the determination of the question whether evidence adduced by a party is relevant depends on the court’s making some other finding (including a finding that the evidence is what the party claims it to be), the court may admit the evidence—
(a) if it is reasonably open to make that finding; or
(b) subject to further evidence being admitted such that, at some later stage of the proceeding, it will be reasonably open to make that finding.
(2) Without limiting the generality of sub-section (1), where the relevance of evidence of an act done by a person depends on the court’s finding that the person and one or more other persons had a common purpose to effect an unlawful conspiracy, the court may use the evidence itself in determining whether such a common purpose existed.
Inferences as to relevance (Policy issues: 979-81; Commentary: 985-6)
46. (1) Where a question arises as to the relevance of a document or thing, the court may examine it and may draw any reasonable inference from it, including an inference as to its authenticity or identity.
(2) Sub-section (1) does not limit the matters from which inferences may properly be drawn.
Division 2—Documents
Interpretation (Commentary: 651)
47. (1) A reference in this Division to the document in question is a reference to a document as to the contents of which it is sought
to give evidence.
(2) For the purposes of this Division, where a document is not an exact copy of the document in question but is identical to the document in question in all relevant respects, it may be taken to be a copy of the document in question.
“Best evidence rule” abolished (Policy issues: 648-50; Commentary: 651)
48. It is not necessary to tender a document in order to prove its contents.
The contents of documents (Policy issues: 648-50; Commentary: 651)
49. (1) Oral evidence is not admissible to prove the contents of a document.
(2) A document is not admissible to prove the contents of some other document.
Admissions (Policy issues: 648-50; Commentary: 651)
50. Section 49 does not apply in relation to evidence of an admission.
Unavailable documents (Policy issues: 648-50; Commentary: 651)
51. Where the document in question is not available to the party who seeks to adduce evidence of its contents, section 49 does not apply.
Copies, &c., of documents (Policy issues: 648-50; Commentary: 651)
52. (1) Where a document—
(a) is or purports to be a copy of the document in question; and
(b) was produced, or purports to have been produced, by a device that reproduces the contents of documents, sub-section 49(2) does not apply in relation to the document.
(2) Where the document in question is an article or thing by which words are recorded in such a way as to be capable of being reproduced as sound, or in which words are recorded in a code (including shorthand writing), sub-section 49(2) does not apply in relation to a document that is or purports to be a transcript of the words.
(3) Where the document in question is an article or thing on or in which information is stored in such a manner that the information cannot be used by the court unless a device is used to retrieve, produce or collate it, sub-section 49(2) does not apply in relation to a document that was or purports to have been produced by the use of such a device.
Business and public records (Policy issues: 652-1; Commentary: 654-6)
53. (1) Where—
(a) a document—
(i) forms part of the records of or kept by a business (whether or not the business is still in existence); and
(ii) is or purports to be a copy of, an extract from or a summary of the document in question; or
(b) a document is or purports to be a copy of a document of the kind mentioned in paragraph (a), sub-section 49(2) does not apply in relation to the document.
(2) Without limiting the generality of sub-section (1), where the document in question is a public document, sub-section 49(2) does not apply in relation to a document that—
(a) was or purports to have been printed—
(i) by the Government Printer or by the government or official printer of a State or Territory; or
(ii) by the authority of the government or administration of the Commonwealth, a State, a Territory or a foreign country; and
(b) is or purports to be a copy of the document in question.
Documents in foreign countries (Policy issues: 648-50; commentary: 651)
54. Where the document in question is in a foreign country, sections 51, 52 and 53 do not apply unless—
(a) the party who adduces evidence of the contents of the document in question has, not less than 14 days before the day on which the evidence is adduced, served on each other party a copy of the document proposed to be tendered; or
(b) the court directs that they are to apply.
Division 3—Hearsay evidence4, 5
Subdivision A—The hearsay rule
Hearsay evidence (Policy issues: 661-81; Commentary: 675, 682-5)
55. (1) Evidence of a previous representation is not admissible to prove the existence of a fact intended b the person who made the representation to be asserted by the representation.
(2) Such a fact is in this Division referred to as a prescribed fact.
(3) Where evidence of a previous representation is relevant otherwise than as mentioned in sub-section (1), that sub-section does not prevent use of the evidence to prove the existence of a prescribed fact.
Subdivision B—“First-hand” hearsay
Restriction to “first-hand” hearsay (Policy issues: 661-81; Commentary: 682-3, 686)
56. A reference in this Subdivision to a previous representation is a reference to a previous representation that was made by a person whose knowledge of the prescribed fact was or might reasonably be supposed to have been based on what the person saw, heard or otherwise noticed.
Civil proceedings: maker not available (Policy issues: 661-81; Commentary: 678, 682-3, 687)
57. In a civil proceeding, where the person who made a previous representation is not available to give evidence about the prescribed fact, sub-section 55(1) does not apply in relation to oral evidence of the representation that is given by a person who saw, heard or otherwise noticed the making of the representation or to a document in which the representation was made.
Civil proceedings: maker available (Policy issues: 661-81; Commentary: 678, 682-3, 688)
58. (1) This section applies in a civil proceeding where the person who made a previous representation is available to give evidence about a prescribed fact.
(2) Where it would cause undue expense or undue delay, or would not be reasonably practicable, to call the person to give evidence, sub-section 55(1) does not apply in relation to oral evidence of the representation given by a person who saw, heard or otherwise noticed the making of the representation or to a document in which the representation was made.
(3) Where the person has been or is to be called to give evidence, sub-section 55(1) does not apply in relation to evidence of the representation that is given by—
(a) that person; or
(b) a person who saw, heard or otherwise noticed the making of the representation,
if, at the time when the representation was made, the occurrence of the prescribed fact was fresh in the memory of the person who made the representation.
(4) Where sub-section (3) applies in relation to a representation, a document containing the representation shall not, unless the court otherwise orders, be tendered before the conclusion of the examination in chief of the person who made the representation.
Criminal proceedings: maker not available (Policy issues: 661-81; Commentary: 678-9, 691)
59. (1) This section applies in a criminal proceeding where the person who made a previous representation is not available to give evidence about a prescribed fact.
(2) Sub-section 55(1) does not apply in relation to evidence of a previous representation that is given by a witness who saw, heard or otherwise noticed the making of the representation, being a representation that was—
(a) made by a person who was under a duty to make that representation or to make representations of that kind;
(b) made at or shortly after the time when the prescribed fact occurred and in circumstances that make it unlikely that the representation is a fabrication;
(c) made in the course of giving sworn evidence in a legal or administrative proceeding if the defendant, in that proceeding, cross-examined the person who made the representation, or had a reasonable opportunity to cross-examine the person, about it; or
(d) against the interests of the person who made it at the time when it was made.
(3) For the purposes of paragraph (2)(c), the defendant may be taken to have had a reasonable opportunity to cross-examine a person notwithstanding that he or she could reasonably have been present when the cross-examination might have been conducted but was not so present.
(4) Where a representation—
(a) tends to damage the reputation of the person who made it;
(b) tends to show that that person has committed an offence; or
(c) tends to show that that person is liable in an action for damages,
then, for the purposes of paragraph (2)(d), the representation shall be taken to be against the interests of the person who made it.
(5) In relation to evidence of a previous representation adduced by a defendant, being evidence that is given by a witness who saw, heard or otherwise noticed the making of the representation, sub-section 55(1) does not apply.
(6) Where evidence of a previous representation has been adduced by a defendant, section 55(1) does not apply in relation to evidence of a previous representation adduced by some other party, being evidence given by a witness who saw, heard or otherwise noticed the making of the representation concerned.
Criminal proceedings: maker available (Policy issues: 661-91; Commentary: 678-9, 693-4)
60. (1) In a criminal proceeding, where the person who made a previous representation is available to give evidence about a prescribed fact, sub-section 55(1) does not apply in relation to evidence of the previous representation that is given by—
(a) that person; or
(b) a person who saw, heard or otherwise noticed the representation being made,
if—
(c) at the time when the representation was made, the occurrence of the prescribed fact was fresh in the memory of the person who made the representation; and
(d) the person who made it has been or is to be called to give evidence in the proceeding.
(2) Sub-section (1) does not apply in relation to evidence adduced by the prosecutor of a representation that was made for the purpose of indicating the evidence that the person who made it would be able to give in a legal or administrative proceeding.
(3) Where the evidence is contained in a document, the document shall not, unless the court otherwise orders, be tendered before the conclusion of the examination in chief of the person who made the previous representation.
Notice to be given (Policy issues: 661, 672-5; Commentary: 695-9, 717-9)
61. (1) Subject to the succeeding provisions of this section, the provisions of section 57 and sub-sections 58(2), 59(2) and 59(5) do not apply in relation to evidence adduced by a party unless that party has given notice in writing in accordance with the regulations to each other party of his or her intention to adduce the evidence.
(2) The court may, on the application of a party and on such terms and conditions as the court thinks fit, direct that one or more of those provisions is to apply—
(a) notwithstanding the failure of the party to give such notice; or
(b) in relation to specified evidence with such modifications as are specified by the court.
(3) In a civil proceeding, where the writing by which notice is given discloses that it is not intended to call the maker of the previous representation concerned on a ground referred to in sub-section 58(2), a party may, not later than 7 days after notice has been given, by notice in writing given to each other party, object to the tender of the evidence, or of a specified part of the evidence, in the manner proposed or at all.
(4) The notice shall set out the grounds on which the objection is based.
(5) The objection may be determined by the court on the application of a party made at or before the hearing.
(6) If the objection is unreasonable, the court may order that the party objecting shall, in any event, bear the costs (ascertained on a solicitor and client basis) incurred by another party—
(a) in relation to the objection; and
(b) in calling the person who made the representation to give evidence.
Subdivision C—Other hearsay
Business records (Policy issues: 661-81; Commentary: 678, 682-3, 701-9)
62. (1) Where a previous representation—
(a) is contained in a document that is or forms part of the records belonging to or kept by a business or at any time was or formed part of such a record;
(b) was made or recorded in the document in the course of, or for the purposes of, a business; and
(c) was made by a person whose knowledge of the prescribed fact was or might reasonably be supposed to have been based on—
(i) what the person saw, heard or otherwise noticed; or
(ii) information directly or indirectly supplied by a person whose knowledge of the prescribed fact was or might reasonably be supposed to have been based on what that person saw, heard or otherwise noticed,
sub-section 55(1) does not apply in relation to the document so far as it contains the representation.
(2) Sub-section (1) does not apply if the representation was prepared or obtained for the purpose of conducting, or in contemplation of or in connection with, a legal or administrative proceeding.
(3) Where—
(a) the happening of an event of a particular kind is in question; and
(b) in the course of a business, a system has been followed of making and keeping a record of the happening of all events of that kind, sub-section 55(1) does not apply in relation to evidence that tends to prove that there is no records kept in accordance with that system of the happening of the event.
Contents of tags, labels, &c. (Policy issues: 661-81; Commentary: 678, 682-3, 712)
63. Where a document has been attached to an object or writing has been placed on a document or object, being a document or writing that may reasonably be supposed to have been so attached or placed in the course of a business, sub-section 55(1) does not apply in relation to the document or writing.
Telecommunications (Policy issues: 661-81; Commentary: 678, 682-3, 711)
64. Where a document has been—
(a) produced by a telecommunications installation; or
(b) received from the Australian Telecommunications Commission,
being a document that records a message that has been transmitted by means of a telecommunications service, sub-section 55(1) does not apply in relation to a representation in the document as to—
(c) the identity of the person from whom or on whose behalf the message was sent;
(d) the date on which, the time at which or the place from which the message was sent; or
(e) the identity of the person to whom the message was addressed.
Reputation as to certain matters (Policy issues: 661-81; Commentary 678, 682-3, 710)
65. (1) Sub-section 55(1) does not apply in relation to evidence of—
(a) reputation that a man and a woman cohabitating at a particular time were married to each other at that time;
(b) family history or a family relationship; or
(c) the existence, nature or extent of a public or general right.
(2) In a criminal proceeding, sub-section (1) does not apply in relation to evidence adduced by the prosecutor.
Division 4—Opinion evidence
Opinion evidence (Policy issues: 731-7; Commentary: 738)
66. (1) Evidence of an opinion is not admissible to prove the existence of a fact as to the existence of which the opinion was expressed.
(2) Where evidence of an opinion is relevant otherwise than as mentioned in sub-section (1), that sub-section does not prevent use of the evidence to prove the existence of a fact as to the existence of which the opinion was expressed.
Lay opinions (Policy issues: 731-7; Commentary: 739-40)
67. Where—
(a) an opinion expressed by a person is based on what the person saw, heard or otherwise noticed about a matter or event; and
(b) evidence of the opinion is necessary to obtain an adequate account of the person’s perception of the matter or event,
sub-section 66(1) does not apply in relation to the evidence.
Opinions based on special knowledge, &c. (Policy issues: 731-7; Commentary: 741-9)
68. Where a person has special knowledge, skill, experience or training, sub-section 66(1) does not apply in relation to evidence of the opinion of that person based wholly or partly on that knowledge, skill, experience or training.
Ultimate issue rule abolished (Policy issues: 731-7; Commentary: 743)
69. Evidence of an opinion is not inadmissible by reason only that it is about a fact in issue.
Division 5—Admissions
Hearsay and opinion rules not to apply (Policy issues: 753-4; Commentary: 755)
70. (1) Sub-sections 55(1) and 66(1) do not apply in relation to—
(a) evidence of an admission; or
(b) evidence of a previous representation made in relation to an admission at the time when the admission was made or shortly before or shortly after that time.
(2) Subject to sub-section (3), where, by reason only of the operation of sub-section (1), sub-sections 55(1) and 66(1) do not apply in relation to evidence of an admission or of a representation as mentioned in paragraph (1)(b), the evidence may be used in relation to the case of the party who made the admission concerned and the case of the party who adduced the evidence.
(3) The evidence may be used in relation to the case of some other party if that other party consents but consent may not be given in respect of part only of the evidence.
Admissions influenced by violence, &c. (Policy issues: 753-4, 759-64; Commentary: 762-61; 965-6)
71. Evidence of an admission is not admissible unless the court is satisfied that the admission, and the making of the admission, were not influenced by violent, oppressive, inhuman or degrading conduct, whether toward the person who made the admission or toward some other person, or by a threat of conduct of that kind.
Criminal proceedings: admissions by defendant (Policy issues: 751-4, 759-64; Commentary: 762-6, 767-8, 770, 965-7)
72. (1) This section applies only in a criminal proceeding and only in relation to evidence of an admission made by a defendant.
(2) Where the admission was made in the course of official questioning, evidence of the admission is not admissible unless—
(a) a sound recording of the questioning, and of the admission, is available to the court; or
(b) the questioning was conducted, and the admission made, in the presence of—
(i) a Magistrate (not being a police officer);
(ii) a person included in a class of persons prescribed for the purposes of this paragraph;
(iii) a legal practitioner acting for the person who made the admission; or
(iv) a relative or friend of the person who made the admission, being a relative or friend nominated by the person.
(3) Sub-section (2) does not apply if it was not reasonably practicable to make such a recording or have such a person present.
(4) Evidence of an admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected.6
(5) For the purposes of sub-section (4), the matters that the court shall take into account include—
(a) any relevant condition or characteristic of the person who made the admission, including the age, personality and education of the person and any mental, intellectual or physical disability to which the person is or appears to be subject; and
(b) if the admission was made in response to questioning—
(i) the nature of the questions and the manner in which they were put; and
(ii) the nature of any threat, promise or representation made to the person questioned.
(6) Without limiting the generality of sub-section (4)—
(a) where—
(i) an admission was made by a person in the course of official questioning;
(ii) the questioning was conducted and the admission was made in the presence a legal practitioner acting for the person who made the admission; and
(iii) before the admission was made, the person who made it was informed by an investigating official that he or she need not answer any questions, or say or do anything, in connection with the investigation, and that anything that he or she says might be used in evidence; or
(b) where the defendant has, in the proceeding, given evidence to the effect that the admission is true,
the admission shall, in the absence of evidence to the contrary, be taken to have been made in circumstances that were not likely to affect its truth adversely.
Records of oral questioning (Policy issues: 753-4, 767; Commentary: 769)
73, (1) Where an oral admission was made by a defendant to an investigating official in response to a question put or a representation made by the official, a document prepared by or on behalf of the official is not admissible in a criminal proceeding, to prove the contents of the question, representation or response unless the defendant has, by signing, initialling or otherwise marking the document, acknowledged that the document is a true record of the question, representation or response.
(2) In sub-section (1), “document” does not include a sound recording or a transcript of a sound recording.
Admissions made with authority (Policy issues: 753-4; Commentary: 755)
74. (1) Where it is reasonably open to find that—
(a) at the time when a previous representation was made, the person who made it had authority to make statements on behalf of a party in relation to the matter with respect to which the representation was made;
(b) at the time when a previous representation was made, the person who made it—
(i) was an employee of a party; or
(ii) had authority otherwise to act for a party, and the representation related to a matter within the scope of the person’s employment or authority; or
(c) a previous representation was made by a person in furtherance of a common purpose (whether lawful or not) that the person had with a party or with a party and one or more other persons,
the representation shall, for the purpose only of determining whether it is to be taken to be an admission, be taken to have been made by the party.
(2) For the purposes of the application of sub-section (1), sub-section 55(1) does not apply in relation to a previous representation made by a person that tends to prove—
(a) that the person—
(i) was an employee of a party; or
(ii) had authority to act for a party;
(b) the scope of such employment or authority; or
(c) the existence at any time of a common purpose.
Proof of making of admission (Policy issues: 638-9, 646, 753-4; Commentary: 646)
75. Where it is reasonably open to find that a particular person made a previous representation, the court shall, for the purpose of determining whether evidence of the representation is admissible, find that the person made the representation.
Evidence of silence (Policy issues: 753-4, 756-7; Commentary: 758)
76. (1) An inference unfavourable to a party may not be drawn from evidence that the party or some other person failed or refused to answer a question, or respond to a representation put or made to the person in the course of official questioning.
(2) Where evidence of that kind may only be used to draw such an inference, it is not admissible.
(3) Sub-section (1) does not prevent the use of the evidence to prove that the person failed or refused to answer the question or respond to the representation if the failure or refusal is a fact in issue in the proceeding.
Division 6—Evidence of judgments and convictions
Evidence of judgments and convictions (Policy issues: 771; Commentary: 772-83)
77. (1) Evidence of the decision in a legal or administrative proceeding is not admissible to prove the existence of a fact that was in issue in the legal or administrative proceeding.
(2) Where evidence of such a decision is relevant otherwise than as mentioned in sub-section (1), that sub-section does not prevent its use to prove the existence of a fact that was in issue in the proceeding.
Exceptions (Policy issues: 771; Commentary: 772-6, 782)
78. (1) Sub-section 77(1) does not prevent the admission of evidence of the grant of probate, letters of administration or like order of a court to rove—
(a) the death or date of death of the person concerned; or
(b) the due execution of the testamentary document concerned.
(2) In a civil proceeding, sub-section 77(1) does not apply in relation to evidence that a party, or a person through or under whom a party claims, has been convicted of an offence, not being a conviction—
(a) in respect of which a review or appeal (however described) has been instituted but not determined;
(b) that has been quashed or set aside; or
(c) in respect of which a pardon has been given.
(3) Where, by virtue of sub-section (1) or (2), sub-section 77(1) does not prevent the admission of evidence, Divisions 3 and 4 do not prevent the admission or use of that evidence.
Savings (Commentary: 782 (n 24) 783)
79. Sections 77 and 78 do not affect the operation of—
(a) a law that relates to the admissibility or effect of evidence of a conviction tendered in a proceeding (including a criminal proceeding) for defamation; or
(b) a judgment in rem.
Division 7—Evidence of character and prior conduct
Subdivision A—Preliminary
Interpretation (Commentary: 786-8)
80. A reference in this Division to the doing of an act includes a reference to a failure to act.
Application
81. (1) This Division does not apply so far as a proceeding relates to bail.
(2) This Division does not apply in relation to evidence of the character, reputation or conduct of a person, or in relation to evidence of a tendency that a person has, if that character, reputation, conduct or tendency, respectively, is a fact in issue.
Subdivision B—Credibility
Credibility evidence (Policy issues: 784-9, 791-3, 795-800; Commentary: 817-9)
82. (1) Evidence that relates to the credibility of a witness is not admissible to prove that the evidence of the witness should or should not be accepted.
(2) Where evidence that relates to the credibility of a witness is relevant otherwise than as mentioned in sub-section (1), it may not be used for the purpose mentioned in that sub-section.
Cross-examination as to credibility (Policy issues: 784-8, 791-3, 795-800; Commentary: 817-9)
83. (1) Section 82 does not apply in relation to evidence that relates to the credibility of a witness, being evidence that has been adduced in cross-examination of the witness.
(2) Where such evidence—
(a) is relevant only because it is relevant to the credibility of the witness; and
(b) does not have substantial probative value as to the credibility of the witness, it is not admissible.
(3) The matters that the court shall have regard to in determining whether the evidence has such substantial probative value include—
(a) whether the evidence tends to prove that the witness knowingly or recklessly made a false representation at a time when the witness was under an obligation to tell the truth; and
(b) the period that has elapsed since the acts or events to which the evidence relates were done or occurred.
Cross-examination of accused as to credibility (Policy issues: 784-8, 791-3, 795-800; Commentary: 817-22)
84. (1) This section only applies in a criminal proceeding and applies in addition to section 83.
(2) Subject to the succeeding provisions of this section, a defendant may not be cross-examined as to a matters that is relevant only because it is relevant to the credibility of the defendant unless the court gives leave.
(3) Leave shall only be given in exceptional circumstances.
(4) Leave is not required for cross-examination by the prosecutor as to whether the defendant—
(a) is biased or has a motive to be untruthful;
(b) was or is unable, by reason of a physical or mental condition or otherwise, to be aware of or recall matters to which his or her evidence relates; or
(c) has made a prior inconsistent statement.
(5) Leave shall not be given for cross-examination by the prosecutor as to any other matter that is relevant only because it is relevant to the credibility of the defendant unless—
(a) evidence given by the defendant that tends to prove that a witness called by the prosecutor has a tendency to be untruthful has been admitted; and
(b) the evidence was adduced solely or mainly to impugn the credibility of that witness.
(6) A reference in sub-section (5) to evidence does not include a reference to evidence of conduct—
(a) in the events in relation to which the defendant is being prosecuted; or
(b) in relation to the investigation of that offence.
(7) Leave shall not be given for cross-examination by some other defendant unless the evidence that the defendant to be cross-examined has given includes evidence adverse to the first-mentioned defendant and that evidence has been admitted.
Rebutting denials by other evidence (Commentary: 817-9)
85. Where evidence that a witness—
(a) is biased or has a motive to be untruthful;
(b) is or was unable, by reason of a physical or mental condition or otherwise, to be aware of matters to which his or her evidence relates;
(c) made a prior inconsistent statement; or
(d) knowingly or recklessly made a false representation while under an obligation imposed by or under a law, including a law of a State or a Territory or of a foreign country, to tell the truth,
is adduced otherwise than from the witness, section 82 does not apply in relation to the evidence if—
(e) the witness has denied the substance of the evidence; and
(f) the court has given leave to adduce the evidence.
Where unsworn evidence given (Commentary: 817-9)
86. (1) In a criminal proceeding, where a defendant has given unsworn evidence only, section 82 does not apply in relation to evidence about matters as to which the defendant could have been cross-examined if he or she had given sworn evidence.
(2) Any leave required by section 84 is also required in connection with the operation of sub-section (1).
Application of certain provisions to maker of representations (Commentary: 721)
87. Where—
(a) by virtue of one of the provisions of Division 3, sub-section 55(1) does not prevent the admission of evidence of a previous representation;
(b) evidence of the representation has been admitted; and
(c) the person who made the representation has not been called to give evidence, section 82 does not apply in relation to evidence about matters as to which the person could have been cross-examined if he or she had given evidence.
Re-establishing credibility (Commentary: 592, 628-9, 721, 819)
88. (1) Section 82 does not apply in relation to evidence adduced in re-examination of a witness, being evidence that explains or contradicts evidence given by the witness in cross-examination.
(2) Section 82 does not apply in relation to evidence that explains or contradicts evidence adduced as mentioned in section 86 or 87, if the court gives leave to adduce that evidence.
(3) Without limiting the operation of sub-section (1) or (2), where—
(a) evidence of a prior inconsistent statement of a witness has been admitted; or
(b) it is suggested (either expressly or by implication) that evidence given by the witness has been fabricated or re-constructed (whether deliberately or otherwise) or is the result of a suggestion, section 82 does not apply in relation to evidence of a prior consistent statement of the witness if the court gives leave to adduce the evidence.
Subdivision C—Prior Conduct
Interpretation (Commentary: 823)
89. A reference in this Subdivision to evidence does not include a reference to evidence of reputation or of an opinion.
Subdivision not to apply to credibility (Commentary: 823)
90. This Subdivision does not apply in relation to evidence in so far as it relates to the credibility of a witness.
Conduct (including of accused) to prove tendency (Policy issues: 784, 790, 793, 795-800, 806-8; Commentary: 809-11)
91. (1) Evidence that a person did a particular act or had a particular state of mind (in this section referred to as the “other act” and “other state of mind”, respectively) is not admissible to prove that the person has or had a tendency (whether because of his or her character or otherwise) to do a similar act or have a similar state of mind.
(2) Where such evidence is relevant otherwise than as mentioned in sub-section (1), it may not be used for the purpose mentioned in that sub-section.
(3) Where it is reasonably open to find that—
(a) the person did the other act or had the other state of mind; and
(b) all the acts or states of mind, and the circumstances in which they were done or existed, are substantially and relevantly similar, sub-sections (1) and (2) do not prevent the admission or use of such evidence.
Conduct (including of accused) to prove improbability of co-incidence (Policy issues: 784-8, 790, 793, 795-800, 806-5; Commentary: 809-11)
92. (1) Evidence that 2 or more events occurred is not admissible to prove that, because of the improbability of the events occurring co-incidentally, a person did a particular act or had a particular state of mind.
(2) Where such evidence is relevant otherwise than as mentioned in sub-section (1), it may not be used for the purpose mentioned in that sub-section.
(3) Where it is reasonably open to find that—
(a) the events occurred and the person could have been responsible for them; and
(b) the events are substantially and relevantly similar, sub-sections (1) and (2) do not prevent the admission or use of such evidence.
Prosecution evidence of conduct of accused: further protections (Policy issues: 784-8, 790, 793, 795-800, 806-8, 810-11; Commentary: 810-11)
93. (1) This section applies in relation to evidence in a criminal proceeding adduced by the prosecutor.
(2) Evidence that the defendant did or could have done an act or had or could have had a particular state of mind, being an act or state of mind that is similar to an act or state of mind the doing or existence of which is a fact in issue, is not admissible unless—
(a) the existence of that fact in issue is substantially in dispute in the proceeding; and
(b) the evidence has substantial probative value.
(3) In determining whether the evidence has substantial probative value, the matters that the court shall have regard to include—
(a) the nature and extent of the similarity;
(b) the extent to which the act or state of mind to which the evidence relates is unusual;
(c) in the case of evidence of a state of mind—the extent to which the state of mind is unusual or occurs infrequently; and
(d) in the case of evidence of an act—
(i) the likelihood that the defendant would have repeated the act;
(ii) the number of times on which similar acts have been done; and
(iii) the period that has elapsed between the time when the act was done and the time when the defendant is alleged to have done the act that the evidence is adduced to prove.
Subdivision D—Reputation and opinion
Reputation or opinion as to facts in issue or credibility (Policy issues: 784-87, 788, 793, 795-800; Commentary: 801)
94. (1) Evidence of reputation or of an opinion is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way or have a particular state of mind.
(2) Where such evidence is relevant otherwise than as mentioned in sub-section (1), it may not be used for the purpose mentioned in that sub-section.
Criminal proceedings (Policy issues: 784-87, 788, 793, 795-800; Commentary: 802-5)
95. (1) In a criminal proceeding, sub-sections 55(1) and 66(1) and sections 82 and 94 do not prevent the admission or use of evidence adduced by a defendant—
(a) of an opinion as to the reputation of the defendant; or
(b) if evidence as mentioned in paragraph (a) has been admitted—of the basis for the opinion.
(2) Where evidence of the kind mentioned in sub-section (1) has been admitted, those provisions do not prevent the admission or use of evidence that contradicts it.
(3) In a criminal proceeding, sub-sections 55(1) and 66(1) and sections 82 and 94 do not prevent the admission or use of evidence adduced by a defendant, being evidence as mentioned in section 68 about himself or herself or about some other defendant.
Division 8—Identification evidence
Application of Division (Commentary: 824)
96. This Division applies only in a criminal proceeding.
Identification evidence (Policy issues: 824-9; Commentary: 830-4)
97. Identification evidence adduced by the prosecutor is not admissible unless—
(a) before the identification was made, an identification parade that included the defendant was held and the identification was made without the person who made it having been intentionally assisted or intentionally influenced to make it; or
(b) it would not have been reasonable to have held such a parade before the identification was made.
Photographic, &c., identification (Policy issues: 826-, 835-6; Commentary: 837-9)
98. (1) This section applies in relation to identification evidence (not being evidence adduced by a defendant) where the identification was made wholly or partly as a result of the person who made the identification examining photographs kept for the use of police officers.
(2) Where the defendant was in the custody of a police officer in connection with the investigation of an offence at the time when the photographs were examined, the identification evidence is not admissible unless—
(a) the photograph of the defendant that was examined was taken after the defendant had been taken into that custody; or
(b) the photographs examined included a reasonable number of photographs of persons who were not, at the time when the photographs were taken, in the custody of a police officer in connection with the investigation of an offence.
(3) In any other case, the identification evidence is not admissible unless the photographs examined included a reasonable number of photographs of persons who were not, at the time when the photographs were taken, in the custody of a police officer in connection with the investigation of an offence.
(4) If—
(a) at the time when the identification was made, the defendant was in the custody of a police officer; and
(b) an identification parade that included the defendant was not held before the identification was made,
the evidence is not admissible unless it would not have been reasonable to have held such a parade before the identification was made.
(5) The application of sub-section (4) extends to the case where an identification made by means of examining a picture of the kind known as an identikit picture or a picture of alike kind, or a number of such pictures.
(6) Where evidence concerning an identification of a defendant that was made after examining a photograph or picture of the kind referred to in sub-section (1) or (5) has been adduced by that defendant, the preceding provisions of this section do not render inadmissible evidence adduced by the prosecutor, being evidence that contradicts or qualifies that evidence.
Where legal practitioner not present (Policy issues: 826-9; Commentary: 833)
99. Where—
(a) the defendant refused to co-operate in the conduct of an identification parade unless a legal practitioner acting for him or her was present while it was being held; and
(b) there were, at the time when the parade was to have been conducted, reasonable grounds to believe that it was not reasonably practicable for such a legal practitioner so to be present, it shall be presumed that it would not have been reasonable to have held an identification parade at that time.
Whether identification parade reasonable (Policy issues: 826-9; Commentary: 832-3)
100. Without limiting the generality of paragraph 97(b) or sub-section 98(4), the matters to be taken into account in determining whether it was reasonable to hold an identification parade include—
(a) the kind of offence concerned;
(b) the importance of the evidence; and
(c) whether it was reasonably practicable and was appropriate to hold such a parade.
Directions to jury (Policy issues: 826-9; Commentary: 840-3)
101. (1) Where identification evidence has been admitted, the Judge shall, if the defendant so requests, inform the jury that there is a special need for caution before accepting identification evidence and of the reasons for that need for caution, both generally and in the circumstances of the case.
(2) In particular, the Judge shall warn the jury that it should not find, on the basis of the identification evidence, that the defendant was a person by whom the relevant offence was committed unless—
(a) there are, in relation to the identification, special circumstances that tend to support the identification; or
(b) there is substantial evidence (not being identification evidence) that tends to prove the guilt of the defendant and the jury accepts that evidence.
(3) Special circumstances in relation to an identification include—
(a) the defendant being known to the person who made the identification; and
(b) the identification having been made on the basis of a characteristic that is unusual.
(4) Where—
(a) it is not reasonably open to find the defendant guilty except on the basis of identification evidence;
(b) there are no special circumstances of the kind mentioned in paragraph (2)(a); and
(c) there is no evidence of the kind mentioned in paragraph (2)(b), the Judge shall direct that the defendant be acquitted.
(5) Where identification evidence has been admitted, the Judge shall, if the defendant is not represented in the proceeding by a legal practitioner, inform the defendant that he or she may make a request under sub-section (1).
Division 9—Privileges
Interpretation (Commentary: 879-80, 909)
102. In this Division, unless the contrary intention appears—
“client” includes—
(a) an employee or agent of a client;
(b) if the client is a person in respect of whose person, estate or property a manager or committee or other person (however described) is for the time being acting under a law of a State or Territory that relates to persons of unsound mind – a person so acting; and
(c) if the client has died—a personal representative of the client, and, in relation to a confidential communication made by a client in respect of property in which the client had an interest, also includes a successor in title to that interest;
“confidential communication” or “confidential record” means a communication made or a record prepared in such circumstances that, at the time when it was made or prepared—
(a) the person who made or prepared it; or
(b) the person to whom it was made or for whom it was prepared,
was under an obligation not to disclose its contents to a party, whether the obligation arises under law or not and whether it is express or implied;
“interested person”, in relation to a confidential communication or a confidential record, means a person by whom, to whom or about whom the communication was made or the record prepared;
“legal practitioner” includes an employee or agent of a legal practitioner.
Confidential communications and records (Policy issues: 847-51, 903-8, 910-16, 919-3, 935-8, 942-6, 948-53; Commentary: 909, 917-8, 932-4, 939-41, 947, 954-6)
103. (1) Where, on the application of a person who is an interested person in relation to a confidential communication or a confidential record, the court finds that, if evidence of the communication or record were to be given in the proceeding, the likelihood of—
(a) harm to an interested person;
(b) harm to the relationship in the course of which the confidential communication was made or the confidential record prepared; or
(c) harm to relationships of the kind concerned, together with the extent of that harm, outweigh the desirability of admitting the evidence, the court may direct that the evidence not be given.
(2) For the purposes of sub-section (1), the matters that the court shall take into account include—
(a) the importance of the evidence in the proceeding;
(b) if the proceeding is a criminal proceeding—whether the evidence is adduced by the defendant or by the prosecutor;
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and
(d) any means available to limit publication of the evidence.
Self-incrimination in other proceedings (Policy issues: 847-61; Commentary: 862)
104. (1) Where a witness objects to giving evidence on the ground that the evidence may tend to prove that the witness—
(a) has committed an offence against or arising under a law of or in force in the Commonwealth, a State or a Territory or the law of a foreign country; or
(b) is liable to a civil penalty,
the court shall, if there are reasonable grounds for the objection, inform the witness—(c) that he or she need not give the evidence but that, if he or she gives the evidence, the court will give a certificate under this section; and
(d) of the effect of the certificate.
(2) If the witness declines to give the evidence, the court shall not require the witness to give it but, if the witness gives the evidence, the court shall cause the witness to be given a certificate under this section in respect of the evidence.
(3) Where—
(a) the objection has been overruled; and
(b) after the evidence has been given, the court finds that there were reasonable grounds for the objection,
the court shall cause the witness to be given such a certificate.
(4) Evidence in respect of which a certificate under this section has been given is not admissible against the person to whom the certificate was given in any legal or administrative proceeding, not being a criminal proceeding in respect of the falsity of the evidence.
(5) The preceding provisions of this section do not apply in relation to evidence given by a party that tends to prove that the party did an act the doing of which is a fact in issue in the proceeding.
Privilege in respect of legal advice and litigation, &c. (Policy issues: 877-8, 881-2, 847-51; Commentary: 879-87)
105. (1) Where, on objection by a client of a legal practitioner the court finds that the giving of evidence would involve the disclosure of—
(a) a confidential communication made between—
(i) the client and the legal practitioner;
(ii) 2 or more legal practitioners acting for the client; or
(iii) the employees or agents of such legal practitioners; or
(b) the contents of a document (whether delivered or not) that was prepared by the client or the legal practitioner,
for the dominant purpose of the legal practitioner, or of one of the legal practitioners, providing legal advice to the client, the court shall direct that the evidence not be given.
(2) Where, on objection by a client of a legal practitioner the court finds that the giving of evidence would result in the disclosure of—
(a) a confidential communication between—
(i) 2 or more of the persons mentioned in sub-section (1);
(ii) a person referred to in sub-section (1) and some other person; or
(iii) the employees or agents of the client; or
(b) the contents of a document (whether delivered or not),
that was made or prepared for the dominant purpose of providing or receiving professional legal services in relation to anticipated or pending administrative or legal proceedings in which the client is or may be a party, the court shall direct that the evidence not be given.
(3) Where, on objection by a party who is not represented in the proceeding by a legal practitioner, the court finds that the giving of evidence will involve the disclosure of—
(a) a confidential communication made between that party and some other person; or
(b) the contents of a document (whether delivered or not) that has been prepared by that party or at the direction or request of the party,
for the dominant purpose of preparing for or conducting the proceeding, the court shall direct that the evidence not be given.
Loss of privilege in respect of legal advice and litigation, &c. (Policy issues: 847-51; Commentary: 884-5)
106. (1) Section 105 does not prevent the giving of evidence given with the consent of the client or party concerned.
(2) Section 105 does not prevent the giving of evidence relevant to a question concerning the intentions or competence in law of a client or party who has died.
(3) Where, if the evidence were not given, the court would thereby be prevented, or it could reasonably be expected that the court would thereby be prevented from enforcing an order of a court, including a court of a State or Territory, section 105 does not prevent the giving of the evidence.
(4) Where, if the evidence were not given, the giving or the admission of evidence that tends to assist the defendant in a criminal proceeding, would thereby be prevented, or it could reasonably be expected that the giving or admission of such evidence would be prevented, section 105 does not prevent the giving of the first-mentioned evidence.
(5) Section 105 does not prevent the giving of evidence of the making of a communication or document that affects a right of, or gives rise to a right of action by, a person.
(6) Where a client or party has voluntarily disclosed the substance of evidence, not being a disclosure made—
(a) as mentioned in section 105;
(b) as a result of duress or deception; or
(c) under compulsion of law, being compulsion based on an error of law or of fact,
section 105 does not prevent the giving of the evidence.
(7) Where a confidential communication is contained in a document and a witness has used the document as mentioned in sub-section 29(1), section 105 does not prevent the giving of evidence of the document
(8) Where the substance of evidence has been disclosed with the express or implied consent of the client or party, section 105 does not prevent the giving of the evidence, but a disclosure by a client of a legal practitioner to a person who is a client of the same legal practitioner shall not be taken to be disclosure for the purposes of this sub-section if the disclosure concerns a matter in relation to which the legal practitioner is providing or is to provide professional legal services to them.
(9) Where 2 or more persons who are parties to a proceeding have, before the commencement of the proceeding, jointly retained a legal practitioner in relation to a matter, section 105 does not prevent the giving of evidence of—
(a) a communication made by any one of them to the legal practitioner in connection with that matter; or
(b) a document prepared by either of them,
in connection with that matter.
(10) Section 105 does not prevent the giving of evidence of a communication made or a document prepared in furtherance of the commission of—
(a) a fraud; or
(b) an offence or an act that renders a person liable to a civil penalty.
(11) For the purposes of sub-section (10), where—
(a) the commission of a fraud, an offence or an act of the kind mentioned in paragraph (10)(b) is a fact in issue in a proceeding; and
(b) there are reasonable grounds for finding that a communication was made or document prepared in furtherance of the commission of the fraud, offence or act,
the court may find that the communication was so made or the document so prepared, respectively.
(12) Where the communication was made or the document prepared by a person who was, at the time, an employee or agent of a client or a legal practitioner, the preceding provisions of this section do not apply unless the matter to which the communication or the document relates was within the scope of the employment or authority of the person.
(13) Where, by virtue of one of the preceding provisions of this section, section 105 does not prevent the giving of evidence of a communication, it does not prevent the giving of evidence of a communication that is reasonably necessary to enable a proper understanding of the first-mentioned communication.
Court to inform of rights, &c. (Commentary: 850, 862)
107. Where it appears to the court that a witness or a party, being a witness or party who is not represented in the proceeding by a legal practitioner, may object to the giving of evidence under one of the preceding provisions of this Division, the court shall satisfy itself (if there is a jury, in the absence of the jury) that the witness is aware of the effect of that provision.
Certain evidence inadmissible (Commentary: 850)
108. Evidence that, by or under a provision of this Division, may not be given in a proceeding is not admissible in the proceeding.
Division 10—Evidence excluded in the public interest
Reasons for judicial, &c., decisions (Policy issues: 847-51, 873-5)
109. (1) Evidence of the reasons for a decision made by a person—
(a) acting as judge, magistrate or like officer or as juror in a legal or administrative proceeding; or
(b) acting as an arbitrator in respect of a dispute that has been submitted to the person, or to the person and one or more other persons, for arbitration,
or the deliberations of a person so acting in relation to such a decision, may not be given by that person.
(2) Sub-section (1) does not apply in a proceeding that is a prosecution for an offence against or arising under Part III of the Crimes Act 1914 or for a like offence or for conspiracy to commit such an offence.
Matters of state (Policy issues: 847-51, 863, 869-71; Commentary: 864-8, 872)
110. (1) Where the public interest in admitting evidence that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to it, the court may, either of its own motion or on the application of any person (whether or not a party), direct that the evidence not be given.
(2) For the purposes of sub-section (1), evidence that relates to matters of state includes—
(a) evidence that relates to the security or defence of Australia;
(b) evidence that relates to international relations or to relations between the Commonwealth and a State or relations between 2 or more States;
(c) evidence that relates to the prevention or detection of offences;
(d) evidence the giving of which would disclose, or enable a person to ascertain, the existence or identity of a confidential source of information in relation to the enforcement or administration of a law, including a law of a State; and
(e) evidence the giving of which would tend to prejudice the proper functioning of government, including the government of a State.
(3) For the purposes of sub-section (1), the matters that the court shall take into account include—
(a) the importance of the evidence in the proceeding;
(b) if the proceeding is a criminal proceeding—whether the evidence is adduced by the defendant or by the prosecutor;
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding;
(d) the likely effect of the giving of the evidence and the means available to limit its publication; and
(e) whether the evidence has already been published.
(4) For the purposes of sub-section (1), the court may inform itself in any manner the court thinks fit.
(5) A reference in this section to a State includes a reference to a Territory.
Settlement negotiations (Policy issues: 847-51, 890; Commentary: 891-4)
111. (1) Evidence may not be given of—
(a) the contents of a communication made—
(i) between persons in dispute; or
(ii) between one or more persons in dispute and a third party, being a communication made in connection with an attempt to settle the dispute; or
(b) the contents of a document that has been prepared in connection with an attempt to settle a dispute, whether or not the document has been delivered.
(2) Sub-section (1) does not apply where—
(a) the persons in dispute consent to the giving of the evidence or, if one of those persons has tendered the communication or document in evidence in some other administrative or legal proceeding, all the other persons so consent;
(b) the communication or document—
(i) began an attempt to settle the dispute; and
(ii) included a statement to the effect that it was not to be treated as confidential;
(c) the substance of the evidence has been disclosed with the express or implied consent of all the persons in dispute;
(d) the evidence tends to contradict or to qualify evidence that has already been admitted about the course of an attempt to settle the dispute;
(e) the communication or document relates to an issue in dispute and the dispute, so far as it relates to that issue, has been settled;
(f) the making of the communication or document constitutes an offence; or
(g) the making of the communication or document affects a right of, or gives rise to a right of action by, a person.
(3) A reference in this section to a party to a dispute includes a reference to an employee or agent of the party.
Court to inform of rights, &c. (Commentary: 850)
112. Where it appears to the court that a witness or a party may make an application or objection under one of the preceding provisions of this Division, the court shall satisfy itself (if there is a jury, in the absence of the jury), that the witness is aware of the effect of that provision.
Certain evidence inadmissible (Commentary: 850)
113. Evidence that, by or under a provision of this Division, may not be given in a proceeding is not admissible in the proceeding.
Division 11—Discretions to exclude evidence
General discretion (Commentary: 640, 643-5, 811)
114. Where the probative value of evidence is substantially outweighed by the danger of unfair prejudice or confusion or the danger that the evidence might mislead or cause or result in undue waste of time, the court may refuse to admit the evidence.
Criminal proceedings: prejudicial evidence (Policy issues: 957; Commentary: 957, 968)
115. In a criminal proceeding, where the probative value of evidence adduced by the prosecutor is outweighed by the danger of unfair prejudice to the defendant, the court may refuse to admit the evidence.
Improperly obtained evidence (Policy issue: 958-9; Commentary: 960-6; 968-9)
116. (1) Where evidence is obtained—
(a) improperly or in contravention of a law; or
(b) in consequence of an impropriety or of a contravention of a law,
the evidence shall not be admitted unless the desirability of admitting the evidence substantially outweighs the undesirability of admitting evidence that has been obtained in the manner in which the evidence was obtained.7
(2) Without limiting the generality of sub-section (1), where—.
(a) an admission was made during or in consequence of questioning; and
(b) the person conducting the questioning knew or ought reasonably to have known that—
(i) the doing or omission of an act was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or
(ii) the making of a false statement was likely to cause the person who was being questioned to make an admission, but nevertheless, in the course of that questioning, the person did or omitted to do the act or made the false statement, evidence of the admission, and evidence obtained in consequence of the admission, shall be taken to have been obtained improperly.
(3) For the purposes of sub-section (1), the matters that the court shall take into account include—
(a) the probative value of the evidence;
(b) the importance of the evidence in the proceeding;
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding;
(d) the gravity of the contravention or impropriety;
(e) whether the conduct concerned was deliberate or reckless;
(f) whether the conduct concerned was contrary to or inconsistent with the human rights of a person within the meaning of the Human Rights Commission Act 1981;
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the conduct concerned; and
(h) whether the evidence could have been obtained in some other way.
PART IV—OTHER ASPECTS OF PROOF
Division 1—Judicial notice
Matters of law (Policy issues: 969; Commentary: 970-3)
117. (1) Proof shall not be required about matters of law, including the provisions and coming into operation, in whole or in part, of—
(a) an Act, an Imperial Act, a State Act or an Act or Ordinance of a Territory; or
(b) an instrument of a legislative character (including regulations, statutory rules and by-laws) made or issued under or by authority of such an Act or Ordinance, being an instrument—
(i) that is required by or under an enactment to be published in a government or official gazette (by whatever name called); or
(ii) the making or issuing of which is so required to be notified in a government or official gazette (by whatever name called).
(2) The Judge may inform himself or herself about those matters in any manner that the Judge thinks fit.
Matters of common knowledge, &c. (Policy issues: 969; Commentary: 970-2, 974-8)
118. (1) Proof shall not be required about knowledge that is not reasonably open to question and is—
(a) common knowledge in the locality in which the proceeding is being held or generally; or
(b) capable of verification by reference to a document the authority of which cannot reasonably be questioned.
(2) The Judge may acquire knowledge of that kind in any manner that the Judge thinks fit.
(3) The court (if there is a jury, including the jury) shall take knowledge of that kind into account.
(4) The Judge shall give a party such opportunity to make submissions, and to refer to relevant information, in relation to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced.
Certain Crown certificates (Policy issues: 977; Commentary: 977)
119. This Part does not affect the operation of a statement or certificate made or given by or on behalf of the Crown with respect to a matter of international affairs.
Division 2—Facilitation of proof
Evidence produced by machines, processes, &c. (Policy issues: 979-81; Commentary: 988-9)
120. (1) This section applies in relation to a document or thing produced wholly or partly by a device or process.
(2) Where it is reasonably open to find that the device or process is one that, or is of a kind that, if properly used, ordinarily does what the party tendering the document or thing asserts it to have done, it shall be presumed, unless the contrary is proved, that, in producing the document or thing on the occasion in question, the device or process did what that party asserts it to have done.
(3) In the case of a document that is, or was at the time it was produced, part of the records of, or kept for the purposes of, a business (whether or not the business is still in existence), then, where the device or process is or was at that time used for the purposes of the business, it shall be presumed, unless the contrary is proved, that on the occasion in question the device or process did what the party adducing the evidence asserts it to have done.
(4) Sub-section (3) does not apply in relation to the contents of a document that was produced for the purposes of a legal or administrative proceeding.
Attestation of documents (Policy issues: 993; Commentary: 993)
121. It is not necessary to adduce the evidence of an attesting witness to a document (not being a testamentary document) to prove that the document was signed or attested as it purports to have been signed or attested.
Gazettes, &c.
122. (1) It shall be presumed, unless the contrary is proved, that a document purporting—
(a) to be the Gazette or a government or official gazette (by whatever name called) of a State or Territory; or
(b) to have been printed by authority of the government or administration of the Commonwealth, a State, a Territory or a foreign country,
is what it purports to be and was published on the day on which it purports to have been published.
(2) Where there is produced to a court—
(a) a copy of the Gazette or a government or official gazette (by whatever name called) of a State or Territory; or
(b) a document that purports to have been printed by authority of the government or administration of the Commonwealth, a State, a Territory or a foreign country,
being a copy or document in which the doing of an act—
(c) by the Governor-General or by the Governor of a State or the Administrator of a Territory; or
(d) by a person authorised or empowered by law to do the act,
is notified or published, it shall be presumed, unless the contrary is proved, that the act was duly done and, if the date on which the act was done appears in the copy or document, that it was done on that date.
Seals and signatures (Policy issues: 993; Commentary: 993)
123. (1) Where the imprint of a seal appears on a document and purports to be the imprint of—
(a) the Great Seal of Australia;
(b) a Royal Great Seal;
(c) some other seal of the Commonwealth;
(d) a seal of a State, a Territory or a foreign country; or
(e) the seal of a body corporate established by or under the law of a State, Territory or foreign country, it shall be presumed, unless the contrary is proved, that—
(f) the imprint is the imprint of the seal of which it purports to be the imprint; and
(g) the document was duly sealed as it purports to have been sealed.
(2) Where the imprint of a seal appears on a document and purports to be the imprint of the seal of—
(a) the Sovereign, the Governor-General or the Governor of a State; or
(b) a person holding office under the Constitution or an Imperial Act or the law of the Commonwealth, a State, a Territory or a foreign country,
it shall be presumed, unless the contrary is proved, that—
(c) the imprint is the imprint of the seal of which it purports to be the imprint; and
(d) the document was duly sealed by the person purporting to seal it acting in his or her official capacity.
(3) Where a document purports to have been signed by a person referred to in paragraph (2)(a) or (b), it shall be presumed, unless the contrary is proved, that the document was duly signed by that person acting in his or her official capacity.
Public documents (Policy issues: 993; Commentary: 993)
124. It shall be presumed, unless the contrary is proved, that a document that purports—
(a) to be a copy of, or a faithful extract from or summary of, a public document; and
(b) to have been—
(i) sealed with the seal of a person who, or of a body which; or
(ii) certified as such a copy, extract or summary by a person who,
might reasonably be supposed to have the custody of the public document, is a copy of the public document, or a faithful extract from or summary of, the public document, respectively.
Documents produced from proper custody (Policy issues: 993; Commentary 993)
125. Where a document that is or purports to be more than 20 years old is produced from proper custody, it shall be presumed, unless the contrary is proved, that the document is the document that it purports to be and, where it purports to have been executed or attested by a person, that it has been duly executed or attested by that person.
Labels, &c. (Policy issues: 993; Commentary 993)
126. Where—
(a) a document has been attached to an object or writing has been placed on a document or object; and
(b) the document or writing so attached or placed may reasonably be supposed to have been so attached or placed in the course of a business,
it shall be presumed, unless the contrary is proved, that the ownership or the origin of the object or document is as stated in the document or writing.
Posts and telecommunications (Policy issues: 993; Commentary: 993)
127. (1) It shall be presumed, unless the contrary is proved, that a postal article sent by prepaid post addressed to a person at a specified address in Australia or in an external Territory was received at that address on the fourth day after having been so sent.
(2) Where a message has been—
(a) sent by means of a telecommunications installation; or
(b) delivered to an office of the Australian Telecommunications Commission for transmission by the Commission and any fee payable in respect of that transmission has been paid,
it shall be presumed, unless the contrary is proved, that the message was duly received by the person to whom it was addressed.
(3) Where a document that has been—
(a) received from the Australian Telecommunications Commission; or
(b) produced by a telecommunications installation,
purports to contain a record of a message transmitted by means of a telecommunications service, it shall be presumed, unless the contrary is proved, that the message—(c) was so transmitted; and
(d) was sent by the person from whom or on whose behalf it purports to have been sent on the date on which and at the time at which, and from the place from which, it purports to have been sent.
(4) In this section, “postal article” has the meaning it has under the Postal Services Act 1975.
Official statistics (Policy issues: 993; Commentary: 993)
128. Where a document purports to have been published by or on behalf of, or by arrangement with, the Australian Bureau of Statistics or the Australian Statistician, it shall be presumed, unless the contrary is proved, that the statistics contained therein were derived by the Bureau from information obtained by it.
Division 3—Standard of proof
Case of party (Policy issues: 994-7; Commentary: 998-9, 1007-8)
129. Subject to section 132, a court shall find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
Admissibility of evidence (Policy issues: 994-9, 1001-5; Commentary: 1007-8)
130. Except as otherwise provided by this Act, a court shall find that the facts necessary for determining—
(a) a question whether evidence should be admitted or not admitted, whether in the exercise of a discretion or not; or
(b) any other question arising under this Act,
have been proved if it is satisfied that they have been proved on the balance of probabilities.
Matters to be taken into account (Policy issues: 994; Commentary: 999, 1006)
131. In determining whether it is satisfied as mentioned in section 129 or 130, the court shall take into account—
(a) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and
(b) the importance of the evidence in the proceedings, respectively.8
Prosecution case (Policy issues: 994; Commentary: 1000, 1007-8)
132. In a criminal proceeding, the court shall not find the case of the prosecution proved unless it is satisfied that it has been proved beyond reasonable doubt.
Division 4—Corroboration
Corroboration requirements abolished (Policy issues: 1009-14; Commentary: 1015-6, 1021-3)
133. (1) It is not necessary that evidence on which a party relies be corroborated.
(2) Sub-section (1) does not affect the operation of a rule of law that requires corroboration with respect to the offence of perjury or a like or related offence.
(3) Notwithstanding any rule, whether of law or of practice, to the contrary, but subject to the other provisions of this Act, where there is a jury, it is not necessary that the Judge—
(a) warn the jury that it is dangerous to act on uncorroborated evidence or give a warning to the same or like effect; or
(b) give a direction relating to the absence of corroboration.
Division 5—Warnings
Unreliable evidence (Policy issues: 1009-14; Commentary: 720, 1017-23)
134. (1) This section applies in relation to the following kinds of evidence:
(a) evidence in relation to which Division 3 or 5 of Part III applies;
(b) identification evidence;
(c) evidence the reliability of which may be affected by age, ill-health (whether physical or mental), injury or the like;
(d) in a criminal proceeding—
(i) evidence given by a witness called by the prosecutor, being a person who might reasonably be supposed to have been involved in the events giving rise to the proceeding; or
(ii) oral evidence of official questioning of a defendant, where the questioning is recorded in writing that has not been signed or otherwise acknowledged in writing by the defendant;
(e) in the case of a prosecution for an offence of asexual nature—evidence given by a victim of the alleged offence;
(f) in the case of a proceeding against the estate of a deceased person—evidence given by or on behalf of a person seeking relief in the proceeding, being evidence about a matter about which the deceased person could, if he or she were alive, have given evidence.
(2) Where there is a jury and a party so requests, the Judge shall, unless there are good reasons for not doing so—
(a) warn the jury that the evidence may be unreliable;
(b) inform the jury of matters that may cause it to be unreliable; and
(c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.
(3) It is not necessary that a particular form of words be used in giving the warning or information.
(4) This section does not affect any other power of the Judge to give a warning to, or to inform, the jury.
PART V—MISCELLANEOUS
Inferences (Policy issues: 979-81, 985-6-9; Commentary: 660, 722, 085-6, 1024)
135. Where a question arises as to the application of a provision of this Act in relation to a document or thing, the court may –
(a) examine it; and
(b) draw any reasonable inference from it as well as from other matters from which inferences may properly be drawn.
Proof of certain matters by affidavit, &c. (Commentary: 659, 713, 991. 1024)
136. (1) Evidence of a fact that, by virtue of section 52, 53, 54, 62, 63, 64 or of a provision of Division 2 of Part IV, is to be proved in relation to a document or thing may be given by a person who, at the relevant time or at some later time, had a position of responsibility in relation to the making or keeping of the document or thing.
(2) Notwithstanding Part III (other than Division 1 of that Part), the evidence may include evidence based on the knowledge and belief of the person who gives it, or on information that that person has.
(3) The evidence may be given by affidavit or, in the case of evidence that relates to a public document, by a statement in writing.
(4) An affidavit or statement that includes evidence based on knowledge, information or belief shall set out the source of the knowledge and information and the basis of the belief.
(5) A copy of the affidavit or statement shall be served on each party a reasonable time before the hearing of the proceeding.
(6) The party who tenders the affidavit or statement shall, if some other party so requests, call the deponent or person who made the statement to give evidence, but need not do so otherwise.
Request to produce documents or call witnesses (Policy issues: 657, 663, 672, 674-5, 680, 721, 981; Commentary: 657-8, 715-8, 779, 992, 1024)
137. (1) In this section, “request” means a request given by a party to some other party to do one or more of the following:
(a) to produce to the first-mentioned party or to permit that party, adequately and in an appropriate manner, to examine, test or copy the whole or a part of a specified document or thing;
(b) to call as a witness a specified person believed to be concerned in the production or maintenance of a specified document or thing or a specified person in whose possession a document or thing is believed to be or to have been at any time;
(c) in relation to a document of the kind referred to in paragraph (c) of the definition of “document” in section 3—to permit the first-mentioned party, adequately and in an appropriate manner, to examine and test the document and the way in which it was produced and has been kept;
(d) in relation to evidence of a previous representation—to call as a witness the person who made the previous representation;
(e) in relation to evidence that a person has been convicted of an offence—to call as a witness a person who gave evidence in the proceeding in which person was so convicted.
(2) Where, for the purpose of determining a question that relates to—
(a) a previous representation;
(b) evidence of a conviction of a person for an offence; or
(c) the authenticity, identity or admissibility of a document or thing,
a party has given a reasonable request to some other party and that other party has, without reasonable cause, failed or refused to comply with the request, the court may make one or more of the following orders:
(d) an order directing the other party to comply with the request;
(e) an order that the other party produce a specified document or thing, or call as a witness a specified person, as mentioned in sub-section (1);
(f) such order with respect to adjournments or costs as the court thinks fit,
or may refuse to admit the evidence in relation to which the request was made.
(3) Where the party who has failed to comply with a request proves that the document or thing to be produced or the person to be called is unavailable, it is reasonable cause to fail to comply with the request.
(4) In relation to the exercise of a power under sub-section (2), the matters that the court shall take into account include—
(a) the importance in the proceeding of the evidence in relation to which the request was made;
(b) whether there is a genuine dispute in relation to the matter to which the evidence relates;
(c) whether there is any reasonable doubt as to the authenticity or accuracy of the evidence or of the document the contents of which are sought to be proved;
(d) whether there is any reasonable doubt as to the authenticity of the document or thing that is sought to be tendered;
(e) in the case of a request in relation to evidence of a previous representation—whether there is a reasonable doubt as to the accuracy of the representation or of the information on which it was based;
(f) in the case of a request as mentioned in paragraph (1)(e) – whether some other person is available to give evidence about the conviction or the facts that were in issue in the proceeding in which the conviction was obtained;
(g) whether compliance with the request would involve undue expense or delay or would not be reasonably practicable; and
(h) the nature of the proceeding.
Views, &c. (Policy issues: 1027; Commentary: 1028-31)
138. (1) The Judge may order that a demonstration, experiment or inspection be held.
(2) A Judge shall not make an order under sub-section (1) unless he or she is satisfied that—
(a) the parties will be given a reasonable opportunity to be present; and
(b) the Judge and, if there is a jury, the jury will be present.
(3) In determining whether to make an order under sub-section (1), the matters that the court shall take into account include whether the parties will be present, the matters referred to in section 114 and—
(a) in the case of a demonstration—the extent to which the demonstration will properly reproduce the conduct or event to be demonstrated; and
(b) in the case of an inspection—the extent to which the place or thing to be inspected has materially altered.
(4) The court (including, if there is a jury, the jury) may not itself conduct an experiment in the course of its deliberations.
(5) The preceding provisions of this section do not apply in relation to the inspection of an exhibit by the court or by the jury.
Views, &c., to be evidence (Policy issues: 1027; Commentary: 1028-31)
139. Subject to this Act, the court (including, if there is a jury, the jury) may draw any reasonable inference from what it sees, hears or otherwise notices during a demonstration, experiment or inspection.
The voir dire (Policy issues: 1032-45; Commentary: 1032-46)
140. (1) Where the determination of a question—
(a) whether evidence should be admitted (including in the exercise of a discretion); or
(b) whether a witness is competent or compellable,
depends on the court finding that a particular fact exists, the question whether that fact exists is, for the purposes of this section, a preliminary question.
(2) Where there is a jury, a preliminary question whether evidence of an admission, or evidence to which section 116 applies, should be admitted shall be heard and determined in the absence of the jury.
(3) Where there is a jury, the jury a shall not be present at a hearing to determine any other preliminary question unless the court otherwise orders.
(4) In determining whether to make an order as mentioned in sub-section (3), the matters that the court shall take into account include—
(a) whether the evidence concerned will be given in the course of the hearing to determine the preliminary question; and
(b) whether the evidence to be adduced in the course of that hearing would be admitted if adduced at some other stage of the hearing of the proceeding (other than in some other hearing to determine a preliminary question or, in a criminal proceeding, in relation to sentencing).
(5) Part III (other than sub-section 104(5)) applies in a hearing to determine a preliminary question as though the fact to which the hearing relates were the fact in issue referred to in section 43.
(6) Where there is a jury and the jury is not present at a hearing to determine a preliminary question, evidence shall not be given otherwise in the proceeding about evidence that a witness gave in that hearing unless that evidence is inconsistent with evidence otherwise given by the witness in the proceeding.
(7) Notwithstanding sub-section 21(2), a defendant who gives sworn evidence in a hearing to determine a preliminary question is not thereby precluded from giving unsworn evidence otherwise in the proceeding.
Waiver of rules of evidence (Commentary: 1025-6)
141. (1) The court may, if the parties consent, dispense with the application of any one or more of the provisions of—
(a) Division 3 of Part II; or
(b) Division 2, 3, 4, 5, 6, 7 or 8 of Part III,
in relation to particular evidence or generally.
(2) In a criminal proceeding, the consent of a defendant is not effective for the purposes of sub-section (1) unless—
(a) the defendant is represented by a legal practitioner; or
(b) the court is satisfied that the defendant understands the consequences of giving the consent.
(3) In a civil proceeding, the court may order that any one or more of the provisions mentioned in sub-section (1) do not apply in relation to evidence if—
(a) the matter to which the evidence relates is not genuinely in dispute; or
(b) the application of those provisions would cause or involve unnecessary expense or delay.
(4) In determining whether to exercise the power conferred by sub-section (3), the matters that the court shall take into account include—
(a) the importance of the evidence in the proceeding;
(b) the nature of the cause of action or defence and the nature of the subject-matter of the proceeding;
(c) the probative value of the evidence; and
(d) the powers of the court, if any, to adjourn the hearing, to make some other order or to give a direction in relation to the evidence.
Leave, &c., may be given on terms (Commentary: 606-15, 618-29, 1024)
142. (1) Where, by virtue of a provision of this Act, a court may give any leave or permission, the leave or permission may be given on such terms as the court thinks fit.
(2) In determining whether to give the leave or the permission, the matters that the court shall take into account include—
(a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing;
(b) the extent to which to do so would be unfair to a party or to a witness;
(c) the importance of the evidence in relation to which the leave or permission is sought;
(d) the nature of the proceeding; and
(e) the powers, if any, of the court to adjourn the hearing or to make any other order or give a direction in relation to the evidence.
Additional powers on discovery and inspection (Policy issues: 657, 672, 674-5, 680; Commentary: 658, 715, 992)
143. The powers of a court in relation to the discovery or inspection of documents extend to enabling the court to make such orders as the court thinks fit (including orders as to methods of inspection, adjournments and costs) to ensure that the parties to a proceeding can adequately, and in an appropriate manner, inspect documents of the kind referred to in paragraph (c) of the definition of “document” in section 3.
Conferral of jurisdiction
144. Jurisdiction is conferred on a court of a Territory in respect of matters arising in that court under this Act or under the regulations.
Regulations (Commentary: 1025)
145. The Governor-General may make regulations, not inconsistent with this Act, prescribing matters—
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed,
for carrying out or giving effect to this Act, and in particular making provision with respect to the giving of notice of intention to adduce evidence to which Division 3 of Part III applies.
SCHEDULE
Sub-section 20(1)
Oaths by witnesses
I swear by Almighty God (or the person to be sworn may name a god recognized by his or her religion) that the evidence I shall give will be the truth, the whole truth and nothing but the truth.
Oaths by interpreters
I swear by Almighty God (or the person to be sworn may name a god recognized by his or her religion) that I will well and truly interpret the evidence that will be given and do all other matters and things that are required of me in this case to the best of my ability.
Affirmations by witnesses
I solemnly and sincerely declare and affirm that the evidence I shall give will be the truth, the whole truth and nothing but the truth.
Affirmations by interpreters
I solemnly and sincerely declare and affirm that I will well and truly interpret the evidence that will be given and do all other matters and things that are required of me in this case to the best of my ability.
NOTES
1. The following may be considered as an alternative:
“(c) a reference to the de facto spouse of a person is a reference to a person of the opposite sex to the first-mentioned person who is living with the first-mentioned person as that person’s husband or wife although they are not legally married to each other and—
(i) has so lived for a period of not less than one year; or
(ii) has so lived for some lesser period if there is a child of the relationship.
2. The following may be considered as an alternative:
“27. (1) A witness may, in examination in chief, give evidence of a fact through an interpreter unless the witness can speak and understand the English language to a degree sufficient to enable the witness to understand fully, and to make an adequate reply to, a question about the fact that may be put to him or her.
“(2) Where a witness has not given evidence about a fact in examination in chief through an interpreter, the witness may not, without the leave of the court, give evidence about that fact through an interpreter in cross-examination or re-examination.”.
3. The following may be considered as an alternative:
“40. A party may not cross-examine a witness upon a prior statement alleged to have been made by a person other than the witness.”.
4. Justice MD Kirby suggests the following as an alternative to the whole of Division 3 of Part III (see report para 723–9):
“Division 3—Hearsay evidence
Hearsay evidence
“55. (1) Evidence of a previous representation is not admissible to prove the existence of a fact intended by the person who
made the representation to be asserted by the representation.
“(2) Sub-section (1) does not apply if the court is satisfied that—
(a) the evidence is reliable evidence of the existence of the fact concerned;
(b) the party adducing the evidence does not have, and cannot reasonably be expected to obtain, evidence of the existence of that fact that is of greater probative value;
(c) there is no principle or rule of law or principle of public policy that requires that the evidence not be admitted to prove of the existence of that fact;
(d) the admission of the evidence to prove the existence of the fact would specifically and substantially help the case of the party adducing it and would not unfairly prejudice the case of any other party; and
(e) the admission of the evidence would not result in an undue increase in the length or cost of the proceeding.
“(3) In determining whether the evidence, if admitted, would be reliable evidence of the existence of a fact, the matters that the court shall have regard to include—
(a) whether the previous representation was made at a time when the matters intended by the person who made the representation to be asserted by it, if they had occurred, were, or may reasonably be expected to have been, fresh in the memory of that person;
(b) where the previous representation is contained in a document—whether the document was prepared and kept as part of a system for preparing and keeping documents;
(c) where the previous representation is contained in a document that is a copy of some other document—the means by which, and the circumstances in which, the copy was produced and has been kept;
(d) whether the representation was made by a person whose knowledge of the fact concerned was or could reasonably be expected to have been based on what the person saw, heard or otherwise noticed; and
(e) any other matter that the court considers relevant.
“(4) In determining whether admission of the evidence would unfairly prejudice the case of a party, the matters that the court shall have regard to include—
(a) the desirability of each party having an opportunity to test, contradict or qualify evidence adduced by any other party;
(b) the effect that the admission of the evidence would have on the expeditious conduct of the proceedings;
(c) the nature of the fact to which the previous representation relates and the importance in the proceeding of that fact and the issue to which it relates;
(d) whether the existence of that fact is genuinely in dispute in the proceeding;
(e) whether the person who made the previous representation is to give evidence;
(f) whether that person is, or could with reasonable efforts on the part of a party become, available to give evidence;
(g) where the person who made the previous representation is not to give evidence—the reason for not giving evidence;
(h) whether the party adducing the evidence has given sufficient notice to all the other parties of his or her intention to adduce the evidence;
(j) whether some other party has objected to the admission of the evidence and, if so, the grounds on which hat objection has been made; and
(k) any other matter that the court considers relevant.
“(5) The court shall give reasons in writing in relation to any exercise of its powers under this section.”
5. Mr T Simos QC suggests the following as an alternative for Division 3 of Part III (see report para 730). Clauses 62-5 would continue to be included and cl 138-9 would continue to apply:
“Division 3—Hearsay evidence
Hearsay evidence
“55. (1) Subject to this Act, evidence of a previous representation may not be used to prove the existence of a fact intended
by the person who made the representation to be asserted by the representation.
“(2) Such a fact is in this Division referred to as a prescribed fact.
“(3) Where evidence of a previous representation may only be used to prove the existence of a prescribed fact, it is inadmissible.
Statements in documents
“56. (1) This section only applies in a civil proceeding.
“(2) Subject to the succeeding provisions of this section, where—
(a) a previous representation has been made by a person in a document;
(b) the person—
(i) is or is to be called to give evidence of a prescribed fact; or
(ii) is unavailable to give evidence of a prescribed fact;
(c) at the time when the representation was made, the person’s knowledge of the prescribed fact was based on what he or she saw, heard or otherwise noticed; and
(d) the document is produced to the court,
section 55 does not prevent the use or admission of a document so far as it contains the representation.
“(3) Paragraph (2)(c) does not apply if—
(a) the document is or forms part of a record that is or purports to be a continuous record;
(b) the person made the representation in the course of performing a duty to record information supplied to him or her by some other person; and
(c) that last-mentioned person’s knowledge of the prescribed fact was or might reasonably be supposed to have been based on what he or she saw, heard or otherwise noticed.
“(4) Paragraph (2)(d) does not apply if, having regard to all the circumstances of the case, it would cause undue expense to require the document to be produced and a copy of the document, authenticated in such manner as the court approves, is produced instead.
“(5) Where, at the time when the previous representation was made—
(a) a legal or administrative proceeding had been commenced or was anticipated by the person who made the previous representation;
(b) the existence of the prescribed fact was or would be a fact in issue in that proceeding; and
(c) the person who made the previous representation had an interest of any kind in the outcome of that proceeding,
sub-sections (2) to (4) (inclusive) do not apply in relation to evidence of the previous representation.
Statements against interest
“57. (1) Where a previous representation was made by a person who is unavailable to give evidence of the prescribed fact and the representation was, at the time when it was made, against the interests of the person, section 55 does not prevent the admission or use of evidence of the previous representation if, at the time when it was made—
(a) the person’s knowledge of the subject-matter of the representation was based on what he or she saw, heard or otherwise noticed;
(b) the person knew or ought reasonably to have known that it was against his or her interests; and
(c) the person had no motive to lie in relation to the subject-matter of the representation.
“(2) For the purposes of sub-section (1), but subject to sub-sections (3) and (4), a representation is against the interests of a person if—
(a) it tends to impugn the title of the person to property;
(b) by reason of the representation, the person is likely to suffer a pecuniary loss;
(c) it tends to show that the person is liable to an award of damages; or
(d) it tends to damage the person’s reputation.
“(3) Where a representation would be against the interests of the person who made it only in certain circumstances, then, for the purposes of sub-section (1), it shall not be taken to be against the interests of the person.
“(4) In a criminal proceeding, where a representation tends to prove that the person who made it is guilty of an offence, the representation shall not be taken to be against the interests of the person who made it for the purposes of sub-section (1), but this sub-section does not have effect to prevent the admission or use of an admission.
“(5) Where section 55 does not apply in relation to evidence of a previous representation by reason only of the operation of the preceding provisions of this section, it does not apply in relation to evidence of some other representation that concerns the same subject-matter and was made by the person who made the first-mentioned representation shortly before or shortly after the first-mentioned representation was made.
Statements in the course of duty
“58. Where a previous representation that was made by a person who is unavailable to give evidence of the prescribed fact concerned acts or omissions done or omitted to have been done by the person in the course of his or her duty, being a representation that was made and recorded or reported by the person, or by some other person, in the course of duty, section 55 does not prevent the admission or use of evidence of the previous representation if—
(a) it was made shortly after the time when the event that is the subject-matter of the representation occurred; and
(b) the person who made it and, if the person who made it is not the person who recorded it, the person who recorded it, have no motive to be untruthful in relation to the subject-matter of the representation.
Evidence in earlier proceedings
“59. Where—
(a) a previous representation was made in a legal or administrative proceeding by a person who is unavailable to give evidence of
the prescribed fact; or
(b) a previous representation was made in a legal or administrative proceeding by a person and, having regard to the gravity of the subject-matter of that proceeding and the subject-matter of the proceeding (in this section called `the current proceeding’) in which evidence of the previous representation is sought to be adduced, it would cause undue expense to require the person to be present at the hearing of the current proceeding to give evidence of the prescribed fact,
section 55 does not prevent the admission or use of evidence of the representation in the current proceeding if the current proceeding is between the parties to the legal or administrative proceeding or between one or more of them and a person by whom or through whom the other party to the current proceeding claims.
Statements as to cause of death
“60. Where a previous representation that was made by a person now dead concerned the cause of his or her death and the person
who made it believed, at the time when it was made—
(a) that death was imminent; and
(b) that he or she would suffer after his or her death if he or she were to lie about the cause of his or her death,
section 55 does not prevent the use or admission of evidence of the previous representation in a proceeding in which the cause of the person’s death is a fact in issue.
Contemporaneous statements
“61. Section 55 does not apply in relation to a previous representation that was made at or shortly after the time when the prescribed fact occurred and in circumstances that make it unlikely to be a fabrication.
Statements as to health or state of mind
“61A. Section 55 does not apply in relation to evidence of a previous representation as to the bodily health or state of mind of the person who made the representation at the time when it was made.
Identification
“61B. Section 55 does not apply in relation to identification evidence.
Third party confessions
“61C. In a criminal proceeding, section 55 does not apply in relation to evidence of previous representation made by a person other than a defendant and adduced by a defendant, being evidence that tends to prove that that person is guilty of an offence for which the defendant is being prosecuted, if there are, in relation to the representation, circumstantial guarantees of trustworthiness other than the fact that the representation was made.
Statements of victim
“61D. In a criminal proceeding, where a person who is alleged to be a victim of the offence for which the defendant is being
prosecuted is unavailable to give evidence of the prescribed fact, section 55 does not apply in relation to evidence of previous
representation made by the person, being a representation wholly or partly to the effect that the defendant is not guilty of the
offence, if the person had no motive to lie in relation to the subject-matter of the representation.
Basis of expert opinion
“61E. (1) Where evidence of an opinion that is based wholly or partly on special knowledge, skill, experience or training has
been admitted, section 55 does not prevent the use or admission of evidence of the following previous representations, being representations
on which that opinion was based:
(a) a representation made by a person concerning his or her state of mind or health, or his or her intentions, at the time at which the representation was made;
(b) a representation made by a person in connection with medical, psychiatric or other therapeutic treatment to be given to him or her;
(c) a representation that forms part of the knowledge of the person acquired in the course of acquiring or using the special knowledge, skill, experience or training that the person has;
(d) representations contained in published documents consulted by the person in the course of acquiring the special knowledge, skill, experience or training that the person has, being documents that are accepted, by other persons who have special knowledge, skill, experience or training of the same kind as the witness, as being of reliable authority as to the representations that they contain;
(e) representations included in a class of representations that are ordinarily relied on by persons who have special knowledge, skill, experience or training of the same kind as that of the person in the course of using that knowledge, skill, experience or training, including market quotations, tabulations, lists, compilations of statistics and directories.
“(2) Where the prescribed fact in relation to a representation is the state of mind or health of a person, or the intentions of a person in relation to the disposition of the estate of the person after his or her death, paragraph (1)(a) extends to the representation, whenever it was made.
Prior consistent and inconsistent statements
“61F. Where, by virtue of one of the provisions of Subdivision B of Division 7, section 82 does not apply in relation to evidence
of a previous representation made by a witness, being a representation that is a prior consistent statement or a prior inconsistent
statement made by the witness, section 55 does not apply in relation to the evidence.”.
6. A less stringent test, so far as the prosecution is concerned, would be:
“(4) Evidence of an admission is not admissible unless the circumstances in which the admission was made were not likely to render the admission untrue.”.
7. The following may be considered as an alternative:
Improperly obtained evidence
“116. (1) Where evidence is obtained –
(a) improperly or in contravention of a law; or
(b) in consequence of an impropriety or of such a contravention, the evidence shall not be admitted unless the public interest in
admitting the evidence substantially outweighs the public interest in excluding the evidence.”.
8. Comment is sought on whether the following additional sub-clause is necessary:
“(2) It is not necessary that the court believe that any one or more of the facts alleged exist before it may be satisfied as mentioned in section 135 or 136.”.
TABLE OF PROVISIONS
Regulation
1. Citation
2. Interpretation
3. Form of notice
4. Time for giving notice
EVIDENCE (NOTICE OF HEARSAY) REGULATIONS
Citation
1. These Regulations may be cited as the Evidence (Notice of Hearsay) Regulations.
Interpretation
2. In these Regulations, unless the contrary intention appears, “the Act” means the Evidence Act 19[].
Form of notice
3. (1) Notice required by section 61 of the Act shall contain, so far as they are known to the party who gives notice—
(a) the following particulars in relation to the previous representation concerned:
(i) the date, time and place at which the previous representation was made;
(ii) the names and addresses, so far as they are known, of the person by whom, and the person to whom, the previous representation was made;
(b) so far as they do not otherwise appear—particulars of the evidence proposed to be tendered; and
(c) the substance of all other relevant representations made by the person who made the previous representation.
(2) If any of those representations was made in writing, a copy of the writing shall be annexed to the writing by which notice is given or made available to each party to whom notice is given.
(3) Where –
(a) it is alleged that the maker of the previous representation is not available to give evidence of the prescribed fact; or
(b) the party giving notice proposes not to call that person to give evidence of the prescribed fact, the notice shall also contain particulars of the grounds for the allegation or proposal.
Time for giving notice
4. Notice does not have effect unless it has been given not less than 14 days before the hearing of the proceeding.
WRITTEN SUBMISSIONS
| SN Ahmed | DP 16 |
| The Hon Justice K Anderson, Supreme Court, Victoria | DP 16 |
| Acting Asst Commissioner WL Antill, Australian Federal Police, Canberra | DP 16, IP 3 |
| Australian Council on Population & Ethnic Affairs | RP 8 |
| Australian Institute of Multicultural Affairs | RP 8 |
| Australian Medical Association | RP 13, 16 |
| Mr GC Balthazaar | RP 5 |
| Ms F Bancroft, Australian Finance Conference | RP 9 |
| Bar Association of NSW | RP 9, 15, 16 |
| Bar Association of Queensland | RP 6 |
| Bar Association of Western Australia | IP 3, DP 16 |
| Dr A Bartholomew, Health Commission, Victoria | RP 11 |
| Mr RJ Bartley, Chairman, Licensing Courts of NSW | RP 3, 8 |
| Chief Superintendent WH Bennett QPM, Australian Police College | DP 16, IP 3 |
| Mr EM Bingham QC MHA, Attorney-General, Tasmania | RP 12, 15, 16 |
| The Hon Sir Richard A Blackburn OBE C St J | DP 16, RP 3, 4, 5, 6, 7, |
| Chief Justice, Supreme Court, ACT | 8, 9, 11, 12, 16 |
| The Hon Justice J Bland, County Court, Victoria | DP 16 |
| The Hon Sir Nigel Bowen KBE, Chief Judge, Federal Court of Australia | RP 9 |
| Mr MD Broun QC, Sydney | DP 16, RP 8 |
| Mr B Brown, Secretary, Supreme Court of NSW Rule Committee | RP 13 |
| Mr R Brownlowe | DP 16 |
| Mr JWK Burnside, Barrister, Melbourne | DP 16, RP 3 |
| The Hon Justice E Butler, Family Court, Tasmania | DP 16, IP 3 |
| Mr JM Callaghan SM, Sydney | DP 16, IP 3 |
| Mr FH Callaway, Barrister, Melbourne | DP 16 |
| Mr JC Campbell, Barrister, Sydney | DP 16 |
| The Hon Justice MW Campbell, Workers’ Compensation Commission, NSW | DP 16, IP 3 |
| Chancery Bar Association | DP 16, RP 3 |
| Mr DJ Cook, Chief Stipendiary Magistrate, Queensland | DP 16 |
| Mr WR Court, Registrar, Family Court, Hobart | RP 8 |
| Mr GK Cox, Country Roads Board, Victoria | DP 16 |
| Mr WJE Cox QC, Crown Advocate, Tasmania | DP 16 |
| Mr PR Cranswick, Dobson, Mitchell & Allport, Solicitors, Hobart | DP 16 |
| Sir George Crawford Kt, Supreme Court, Tasmania | DP 16, RP 6, 14, 16 |
| Criminal Bar Association, Victoria | DP 16, IP 3, RP 5, 8, 11, 12 |
| Dr DM Cunningham, IATROS, NSW | DP 16 |
| Ms P Cunningham | RP 6 |
| Ms CR Deller, Sexual Assault Referral Centre | DP 16 |
| Father FW Devoy, Australian Episcopal Conference | DP 16 |
| The Hon Justice JM Didcott, Republic of South Africa | DP 16 |
| Mr M Diserio, Associate to Justice Northrop | RP 6 |
| Mr MF Dixon | IP 3 |
| Mr PM Donohoe, Barrister, Sydney | DP 1 |
| The Hon SS Doumany, Minister for Justice and Attorney-General for Queensland | DP 6 |
| Mr MM Dwyer, Stipendiary Magistrate, Brisbane | RP 3, 4, 5, 6, 7 |
| Dr DE Edgar, Institute of Family Studies, Melbourne | DP 16 |
| Mr Clifford HC Edwards QC, Law Reform Commission, Manitoba | RP 16 |
| Mr L Edwards, Micrographics Association, Sydney | RP 4 |
| Mrs ML Edwards | DP 16 |
| The Hon Sir Richard Eggleston Kt QC, Monash University, Victoria | DP 16, RP 3, 4, 5, 8, 10, 14, 16, Draft Interim Report |
| The Hon Justice Elliott, Family Court, Brisbane | RP 14 |
| Ethnic Affairs Commission of New South Wales | RP 6 |
| Dr DP Farrington, Cambridge University | DP 16 |
| Mr CF Flint, Institute of Engineers, Canberra | DP 16, IP 3 |
| Mr C Fogarty, Secretary, Standing Committee on Constitutional and Legal Affair | DP 16 |
| The Hon Justice JF Fogarty, Family Court, Melbourne | RP 13 |
| The Hon Justice RJA Franki, Federal Court, Sydney | DP 16, RP 3, 9 |
| His Eminence Sir James Cardinal Freeman KBE, Catholic Archbishop of Sydney | RP 6, 5 |
| The Hon Justice J Gallop, Supreme Court, Australian Capital Territory | RP 8 |
| Associate Professor B Gandevia, Sydney | DP 16 |
| The Hon Justice K Gee QC, District Court, New South Wales | DP 16 |
| Mr EW Gillard QC, Melbourne | DP 16 |
| The Hon Justice HH Glass, Court of Appeal, New South Wales | RP 6, 8, 9, 10, 11, 12, 13, 14 & Draft Interim Report |
| Mr AH Goldberg QC, Melbourne | DP 16 |
| Mr G Golden, Department of Law, Victoria | RP 6 |
| Mr AW Goldsworthy, GIO Building Society, South Australia | DP 16 |
| Mr WGS Gotley, Anglican Church Diocese of Sydney | RP 16 |
| Mrs Graham, Judge WM Grant-Taylor, Chief Judge, District Court of Queensland | DP 16 |
| Mr AJ Grassby, Commissioner for Community Relations (Cth) | DP 16, RP 8 |
| Chief Justice GSM Green KBE, Supreme Court, Tasmania | DP 16 |
| Mr KB Green, Micrographics Association of Australia | RP 3, 4 |
| Ms G Griffin | RP 5 |
| The Hon KT Griffin MLC, Attorney-General, South Australia | DP 16 |
| Mr EM Haddrick, Attorney-General’s Department, Canberra | RP 6 |
| Mr DW Hammond SM, Victoria | DP 16 |
| Dr S Harbison | DP 16 |
| RG Hardiman, Deputy Registrar, ACT Supreme Court | DP 16, IP 3 |
| Mr B Hart | RP 13 |
| The Hon Justice P Hase, Family Court, Melbourne | RP 14 |
| His Honour Judge D Heenan, District Court, Western Australia | DP 16, IP 3, RP 3 |
| LJ Heenan | RP 8 |
| Mr CL Hermes, Chief Magistrate, ACT | RP 3, 6, 8, 12, 16, Draft Interim Report |
| The Reverend Dr J Hill, Catholic Institute of Sydney | DP 16 |
| Professor GW Hinde, University of Auckland | DP 16 |
| The Hon Justice MB Hoare, Queensland | DP 16, IP 3 |
| Mr AS Hodge, Law Reform Commission, Hong Kong | DP 16 |
| Mr A Hogan, Legal Workshop, Australian National, University | RP 6, 8 |
| Mr KH Hogg CSM, Western Australia | DP 16 |
| Mr GD Holmes, Attorney-General’s Department, Canberra | RP 16 |
| Mr DF Hore-Lacy | DP 16 |
| Mr FM Horwill, Family Court, Melbourne | DP 16, IP 3 |
| Mr BG Hosking | DP 16, IP 3, RP 8 |
| Reverend Robert Howell | RP 16 |
| Mr MD Huebner, Lord Chancellor’s Office | DP 6, RP 3 |
| The Hon Justice D Hunt, Supreme Court, New South Wales | RP 14 |
| Ms Hylton | RP 6 |
| Mr W Jegorow MBE, Federation of Ethnic Communities’ Councils of Aust | RP 8 |
| The Hon Dr HA Jenkins MP, Speaker of the House of Representatives | RP 5 |
| Mr DA Jessop | DP 16, IP 3, RP 16 |
| Mr I Johnson | DP 16 |
| Mr P Judd, Department of Immigration, Canberra | DP 16 |
| The Hon Justice WJ Kearney, Supreme Court, Northern Territory | RP 14 |
| Mr P Kell, General Accident Fire & Life Assurance Corporation Limited | DP 16 |
| The Hon Justice J Kelly, Supreme Court, ACT | RP 8 |
| Mr A Kelman, | RP 3 |
| Mr RWH Kiss, Kienzle Instruments Australasia Pty Ltd, | DP 16 |
| MrJH Knowles | DP 16 |
| La Trobe Valley Womens’ Refuge Group | DP 16 |
| Mr R Langen-Zueff | RP 8 |
| Law Commission (England) | DP 16, RP 3 |
| Law Council of Australia, Evidence Reference Committee | IP 3 |
| Law Reform Commission of Queensland | DP 16 |
| Law Reform Commission of Tasmania | DP 16, RP 10, 16 |
| Law Reform Commission of Western Australia | DP 16, RP 5 |
| Law Society (England) | DP 16, RP 3 |
| Law Society of NSW and the Criminal Law Committee | DP 16, RP 3, 4, 5, 8, 9, 10, 11, 12, 14, 15, 16 |
| Law Society of Queensland | DP 16, IP 3, RP 3, 4, 5, 6, 7, 8, 10, 11, 12, 13, 14, 15, 16 |
| Law Society of South Australia | RP 6 |
| Legal Services Commission, New South Wales | RP 8 |
| The Hon Justice TE Lindenmayer, Family Court, Brisbane | RP 3 |
| Mr JE Linton, Records Management Association of Australia | RP 4 |
| Mr P Loof, Commonwealth Crown Solicitor’s Office | RP 16 |
| London Common Law Bar Association | DP 16, RP 3 |
| Mr D Maclean, Women Lawyers’ Association of NSW | DP 16, IP 3 |
| Commissioner R McAulay, Commissioner of Police, Northern Territory | DP 16, RP 5 |
| The Hon Justice RE McGarvie, Supreme Court, Victoria | DP 16, RP 5 |
| The Hon Justice DG McGregor, Federal Court, Sydney | RP 7, 9 |
| Ms Janet Mcllraith, Federal Court, Sydney | DP 16 |
| The Hon Sir Murray McInerney Kt, Supreme Court, Victoria | DP 16, IP 3 |
| Mr M McKevitt | DP 16 |
| Mr F Maher, University of Melbourne | RP 16 |
| Mallesons, Solicitors, Melbourne | DP 16 |
| Mallesons/Australian Bankers Association | RP 3 |
| Dr IH Martin, NHS Committee | DP 16 |
| His Honour Judge TJ Martin QC, District Court, Sydney | RP 3, 10, 11, 14, Draft Interim Report |
| Mr RG Matson, Micrographics Association | DP 16 |
| Mr P McNamara, University of Adelaide | RP 11 |
| Mr DT McVeigh, Minister for Home Affairs & Environment | DP 16 |
| Mr D Meagher QC, Melbourne | RP 16, Draft Interim Report |
| Mr V Menart, Solicitor, Sydney | RP 8 |
| Mr R Merkel QC, Melbourne | DP 16 |
| Mr CF Mervyn-Jones, Commercial Law Association of Australia Ltd | RP 3 |
| Mr JE Middleton | DP 16, IP 3 |
| Chief Commissioner SI Miller SB St J QPM, Victoria Police | DP 16, IP 3 |
| The Hon BK Miller MLC, Attorney-General, Tasmania | RP 4, 6 |
| Mr T Molombo | DP 16, IP 3 |
| Mr M Montalto | DP 16 |
| The Hon Justice T Morling, Federal Court, Sydney | RP 8, 9 |
| Mr L Murphy | DP 16 |
| The Hon Justice L Murphy, High Court of Australia | RP 6, 14, 16 |
| The Hon Justice BL Murray, Supreme Court, Victoria | DP 16 |
| Mr IA Myers, Department of Aboriginal Affairs (Cth) | RP 12 |
| Mr GU Nathan | RP 6 |
| National Police Working Party | RP 4, 5, 6, 8, 11, 12, 13, 14, 15, 16 |
| Ms EF Nelson | DP 16, IP 3 |
| Mr A Nicholas | DP 16 |
| Professor RS Northcote, South Australian Institute of Technology | RP 3 |
| The Hon Justice PE Nygh, Family Court. Sydney | DP 16, IP 3, RP 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 16, Draft Interim Report |
| Mr B O’Brien, University of Melbourne | DP 16 |
| Dr D O’Connor, Australian National University | DP 16, IP 3 |
| Mrs L Ollif | DP 16, IP 3 |
| Canon HF Palmer | RP 16 |
| Ms PA Pengilley | DP 16 |
| Mr PGS Penlington | RP 3 |
| Ms C Petre, S Bullock, H Kiel, E Brown; Messrs L Cooper and J Kirkwood | RP 16 |
| Mr J Phillips, University of Melbourne | RP 16 |
| Mr C Porter QC, Sydney | DP 16 |
| Mr AJ Robinson, RACV General Insurance Pty Ltd | DP 16 |
| Mr MJ Robinson, Chief Commissioner, Tasmania Police | DP 16 |
| Mr DW Rogers, Solicitor, Melbourne | IP 3 |
| Mr J Rosenberg | DP 16 |
| Dr G Rosendahl, Western Creek Health Centre |
|
| Mr D Ross, Barrister, Melbourne | DP 16 |
| Mr EL Ross, Children’s Court Offices, Melbourne | DP 16 |
| Mr ML Rutherford, Barrister, Sydney | DP 16 |
| Archbishop Rush, Catholic Archbishop of Brisbane | RP 16 |
| Professor R Sackville, Chairman, NSW Law Reform Commission | DP 16 |
| Mr P Schultz | DP 16 |
| Mr Stephen Sellers | DP 16 |
| Professor P Sheehan, University of Queensland | RP 3, 6 |
| The Hon Justice IF Sheppard, Federal Court of Australia, Sydney | RP 3, 9, 10, 15, 16, Draft Interim Report |
| Ms B Sherman | RP 8 |
| Mr DB Sneddon, Victorian Hospitals Association Ltd | RP 16 |
| Mr T Sobolewski | DP 16, IP 3 |
| Mr P Steiner, Barrister, Melbourne | DP 16 |
| Mr L Stephens | DP 16, IP 3 |
| Mr R Stewart | DP 16, IP 3 |
| The Hon Sir Lawrence Street, KCMG, K St J, Chief Justice of New South Wales | DP 16 |
| Mr PD Street | RP 3 |
| Mr W Szwidowski | IP 3 |
| Mr LG Tanner QC, Sydney | DP 16 |
| Mr Colin Tapper, Oxford University | DP 16, IP 3 |
| Mr RG Thomas, Macquarie University | IP 3 |
| Dr D Thomson, Monash University | RP 3, 6, 11, 12, 15 |
| His Honour Judge BR Thorley, District Court, New South Wales | RP 3, 8 |
| His Honour Judge BR Thorley, and Judges of the District Court of NSW | RP 6 |
| Ms S Torr, AMA/ACHS Peer Review Resource Centre | RP 16 |
| Trade Practices Commission | DP 16, IP 3, RP 3, 5, 7, 14, 15, 16 |
| Mr DN Veron, Victorian Chief Justice’s Law Reform Committee | DP 16 |
| Commissioner KH Viney, Tasmania Police | RP 4, 5, 7 |
| The Hon Justice TW Waddell, Supreme Court, New South Wales | RP 3 |
| Mr P Waight, Australian National University | RP 8, 11 |
| Mr ERH Walker, Solicitor, Melbourne | DP 16 |
| Ms L Watson | RP 3 |
| Mr M Weinberg, Melbourne University | RP 3, 12 |
| The Hon Justice WAN Wells, Supreme Court, South Australia | DP 16, IP 3, RP 3 |
| Mr J Whyte, Grace Bros Pty Ltd | DP 16, RP 4 |
| Ms R Wighton, Department of the Premier & Cabinet | DP 16 |
| Professor G Williams, Cambridge University | IP 3 |
| The Hon I Wilson MP, Minister for Home Affairs & Environment | DP 16 |
| Ms C Wiltshire, National Women’s Advisory Council | RP 5, 6 |
| Mr HF Woltring, Attorney-General’s Department, Canberra | RP 12, 13, 14, Draft Interim Report |
| Women’s Co-Ordination Unit | RP 5 |
| Mrs B Wood | RP 8 |
| Mr JTD Wood, Office of Women’s Affairs, Canberra | RP 5 |
ORAL SUBMISSIONS
| Mrs A Armstrong, Attorney-General’s Department, Commonwealth | DP 16 |
| Australian Bankers Association | DP 16 |
| Bar Association of NSW | DP 16, IP 3 |
| Dr A Bartholomew | DP 16 |
| The Hon Justice B Beaumont, Federal Court, Sydney | DP 16, IP 3 |
| DM Byrne, QC, Melbourne | DP 16, IP 3 |
| Dr Best, President, AMA | DP 16 |
| The Hon Sir Richard Blackburn, Kt OBE C St J, Chief Justice, ACT Supreme Court | DP 16, IP 3 |
| Professor A Blackshield, La Trobe University | DP 16, IP 3 |
| The Hon Sir Nigel Bowen KBE, Chief Judge, Federal Court | DP 16 |
| Mr R Briglia, Barrister, Melbourne | DP 16, IP 3 |
| The Hon Justice R Brooking, Supreme Court, Victoria | DP 16, IP 3 |
| Mr MD Brown QC, Sydney | DP 16, IP 3 |
| Dr RA Brown | DP 16 |
| Mr J Brownie | DP 16, IP 3 |
| Mr T Buddin, University of New South Wales | DP 16, IP 3 |
| Card Charge Services | DP 16 |
| Mr A Chernov QC, Melbourne | DP 16, IP 3 |
| Mr Roger Cook (Chancery Bar Association) | DP 16 |
| Ms Janet Coombs, Barrister, Sydney | DP 16 |
| Mr FC Costigan QC, Melbourne | DP 16, IP 3 |
| Judge Walter Early Craig, Arizona | DP 16 |
| Department of Home Affairs, Commonwealth | DP 16 |
| Mr P Donohoe | DP 16 |
| The Hon Francis L van Dusen, Judge, US Court of Appeals for the Third Circuit | DP 16, IP 3 |
| The Hon Sir Richard Eggleston, Kt QC, Monash University | DP 16 |
| The Hon Justice J Ellis, Family Court, Canberra | DP 16 |
| The Hon E Evatt, Chief Judge, Family Court | DP 16 |
| Family Law Council | DP 16 |
| Mr M Finnane QC, Sydney | DP 16, IP 3 |
| The Hon Justice J Fogarty, Family Court, Melbourne | DP 16 |
| Ms L Foreman | DP 16 |
| Dr R Fox | DP 16 |
| Dr R Francis | DP 16 |
| The Hon Floyd R Gibson, Chief Judge, US Court of Appeals for the Eighth Circuit | DP 16, IP 3 |
| The Hon Sir James Gobbo, Supreme Court, Victoria | DP 16, IP 3 |
| His Hon Judge J Gorman QC, County Court, Victoria | DP 16, IP 3 |
| The Hon Justice Gunn, Family Court, Sydney | DP 16 |
| KM Haine QC, Melbourne | DP 16, IP 3 |
| Professor S Hammond, Melbourne University | DP 16 |
| Mr Hardman | DP 16 |
| Mr L Hart QC, Melbourne | DP 16, IP 3 |
| Mr Z Hartstein, Registrar, ACT Supreme Court | DP 16 |
| His Honour Judge Hassett, County Court, Melbourne | DP 16, IP 3 |
| Mr D Heydon, Barrister, Sydney | DP 16, IP 3 |
| Dr B Headey | DP 16 |
| Mr TJ Higgins, Solicitor, Canberra | DP 16 |
| His Honour Judge Howse, County Court, Melbourne | DP 16, IP 3 |
| Mr Hurlburt QC, Alberta | DP 16 |
| Institute of Family Studies | DP 16 |
| Mr G James QC, Sydney | DP 16, RP 6 |
| The Hon Mr Justice K Jenkinson, Supreme Court, Victori | DP 16, IP 3 |
| His Honour Judge G Just, County Court, Melbourne | DP 16, IP 3 |
| Ms B King | DP 16, RP 5 |
| The Hon LJ King, Chief Justice of South Australia | DP 16, IP 3 |
| The Hon F B Lacey, Judge, US District Court, NJ | DP 16, IP 3 |
| Professor J H Langbein, University of Chicago | DP 16, IP 3 |
| Mr A Lauer | DP 16 |
| Law Council of Australia, Evidence Committee | IP 3 |
| Law Institute of Victoria | DP 16, IP 3 |
| Law Society of South Australia | DP 16, IP 3 |
| Mr Linton | DP 16 |
| Mr T Lloyd, Chancery Bar Association | DP 16 |
| Ms Sally MA Lloyd-Bostock, SSRC Centre for Socio-Legal Studies, Oxford | DP 16 |
| Dr A Lovegrove | DP 16 |
| The Hon Sir George Lush, Supreme Court, Victoria | DP 16, IP 3 |
| The Hon Justice RE McGarvie, Supreme Court, Victoria | DP 16, IP 3 |
| Mrs Janet Mcllraith, Micrographics Association of Australia | DP 16 |
| The Hon Sir Murray McInerney, Supreme Court, Victoria | DP 16, IP 3 |
| Mr K Milte | DP 16 |
| Sir John Minogue, Victorian Law Reform Commissioner | DP 16 |
| The Hon Justice L Murphy, High Court of Australia | RP 6, 14, 16 |
| The Hon Justice Nygh, Family Court, Sydney | DP 16 |
| Mr A Oakey | DP 16 |
| Dr D O’Connor, Australian National University | DP 16 |
| Queensland Law Society, Evidence Committee | DP 16, IP 3, RP 1, 3 |
| The Hon Justice Andrew Rogers, Supreme Court, New South Wales | DP 16, IP 3 |
| Mr D Ross | DP 16, IP 3 |
| Mr R Rutherford | DP 16 |
| The Hon Justice IF Sheppard, Federal Court, Australia | DP 16, IP 3 |
| Ms C Simpson, Barrister, Sydney | DP 16 |
| Mr M Singer | DP 16 |
| Mr R Smith | DP 16, IP 3 |
| The Hon Justice A Southwell, Supreme Court, Victoria | DP 16, IP 3 |
| His Honour Judge G Spence, County Court, Melbourne | DP 16, IP 3 |
| Mr G Stretton, Solicitor, Canberra | DP 16 |
| The Hon Justice Sweeney CBE, Federal Court | IP 3 |
| Mr P Thompson (Lord Chancellor’s Office) | DP 16 |
| Prof R S Thompson USC | DP 16, IP 3 |
| Dr D Thomson, Monash University | DP 16 |
| His Honour Judge BR Thorley, District Court of NSW | DP 16 |
| Trade Practices Commission | DP 16 |
| Victorian Bar | DP 16 |
| Professor A Wearing | DP 16 |
| The Hon Mr Justice Wells, Supreme Court, South Australia, | DP 16, IP 3 |
| His Honour Chief Judge Whelan QC, County Court, Melbourne, | DP 16, IP 3 |
| The Hon Sir John Young KCMG, Chief Justice of Victoria | DP 16, IP 3 |
| The Hon Justice Zelling, Supreme Court, South Australia | DP 16 |
1. Competence and Compellability
1. Psychological Competence. The traditional test at common law for determining the psychological competence of a witness has been to require that a person taking the oath understand its nature and consequences.[1] There is a conflict of authority, however, on whether it is necessary that the witness have some religious belief in a God or other Supreme Being such that an oath would have some binding effect on the witness’ conscience.[2]
2. There is also legislation dealing with the witness who does not understand the oath or affirmation or his obligations under them:
• New South Wales, Norfolk Island and the Northern Territory. The legislation deals only with the witness who is incompetent to take the oath and provides that that witness may affirm.
• South Australia, Queensland, Western Australia and the Northern Territory. There are also provisions which enable a witness to give unsworn evidence where that witness does not understand the oath or the affirmation and his obligations under them. The provisions generally require the Judge to be satisfied that the witness understands that he must be truthful and the consequences of not being truthful or he must explain to the witness that the witness must be truthful.[3] There are some variations of detail.
3. There is legislation in all States and Territories, with the exception of the Northern Territory, dealing with admission of the evidence of children who do not understand the nature of the oath. The conditions vary:
• Queensland, Western Australia, Tasmania, Victoria and New South Wales. The court must be satisfied that the child is of ‘sufficient intelligence to justify the reception of the evidence and to understand the duty of speaking the truth’.[4]
• South Australia and the ACT. The court must explain to the child that the child is required to be truthful.
• The Definition of Child. Different formulae and upper age limits are used to define the category of children who may give unsworn evidence—less than 14 (Victoria and the ACT); 12 (Western Australia); 10 (South Australia); ‘child’ (Queensland); ‘child of tender years’[5] (Tasmania, New South Wales, Norfolk Island); ‘person ... immature of age’ (Christmas and Cocos (Keeling) Islands).
• Corroboration. In Queensland a person may be convicted on the unsworn uncorroborated evidence of a child but the jury must be warned of the danger of convicting without corroboration. Elsewhere, the uncorroborated evidence cannot support a conviction.
4. Only in the Singapore Evidence Ordinance which applies in the Christmas and the Cocos (Keeling) Islands is there a test specifically designed to deal with the issue of psychological competence. Section 119 provides:
All persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.
5. Physical Incompetence. In most jurisdictions a deaf mute witness may be declared incompetent by the judge.[6] The exceptions are Tasmania, the ACT and the Christmas and the Cocos (Keeling) Islands where legislation removes the incompetence. The legislation differs in minor ways, but the latter applies only to a witness ‘unable to speak’.[7]
6. Witness Becoming Unfit to Testify. It is not clear what the consequences are at common law of a witness becoming unfit to testify prior to cross-examination. There appear to be several options for each of which there is some authority:[8]
• the evidence-in-chief should be disregarded;[9]
• the evidence should continue to be admissible;[10]
• the evidence should be admissible but its weight may be diminished.[11]
7. The Accused as a Witness for the Prosecution.
• Legal Competence of Accused. At common law, the accused is not a competent witness for the prosecution. The common law continues to apply to Tasmania, South Australia, Victoria, Queensland and probably in Christmas and the Cocos (Keeling) Islands.[12] There are rules, however, which can render an accused person competent to give evidence for the prosecution. Where persons are being jointly tried a co-prisoner may be called by the Crown to give evidence against another:
― where a nolle prosequi is filed with reference to his case;
― where the prosecution states that no evidence will be offered against the accused resulting in his acquittal;
― where an order for separate trials is obtained;
― where the accused pleads guilty.[13]
In other States and Territories the relevant legislation makes the accused generally competent as a witness.[14] In the ACT legislation it is also provided that the person charged is not liable to be called by the Crown. This proviso applies in New South Wales and the Northern Territory but only in relation to indictable offences. A further limitation is imposed in Western Australia in that an accused person while competent may only be called upon his own application.[15]
• Compellability for the Prosecution. With some specific exceptions, the general rule applies that an accused person is not a compellable witness for the prosecution. This derives from the common law where it applies in Tasmania, South Australia, Victoria and Queensland and is specifically stated in or in the result of the New South Wales, Tasmania, Western Australian, Northern Territory and ACT legislation referred to above. The common law and the legislation, however, have the effect that an accused who is a co-accused becomes compellable in the circumstances referred to in the previous sub-paragraph.
8. The Accused as a Witness for a Co-Accused.
• Legal Competence of Accused as Witness for Co-accused. Legislation has the effect of rendering an accused person competent to give evidence for a co-accused except in the Christmas and Cocos (Keeling) Islands.[16]
• Compellability for Co-accused. The legislation generally provides that a person charged with an offence shall not be compellable.[17] In South Australia however, there is the qualification that the person charged while competent for the ‘defence’ may only be called ‘on his own application’.
9. Spouse of the Accused. The authorities are divided on the issue of whether a spouse who is competent at common law to give evidence for the prosecution may be compelled to do so. The weight of authority appears to support the principle that a competent spouse is a compellable witness. The House of Lords, however, held a few years ago that this was not so.’[18] The position under State and Territory legislation is complex and the law differs throughout Australia in the three principal areas—the spouse as witness for the accused, as witness for the prosecution and as witness for the co-accused. The following points are noted:
• Legal Competence and Compellability of Spouse for the Prosecution. In all jurisdictions the spouse is competent. As to compellability, the approach taken by legislation in most jurisdictions is to specify offences for the trial of which a spouse is a compellable witness. The lists of offences used differ considerably.[19] While some offences are listed in several States and Territories, those same offences have not been listed in other States and Territories.[20] This applies to many and various offences including:
― murder;
― rape;
― carnal knowledge;
― incest;
― sodomy and bestiality;
― offences against the property of a spouse;
― ill-treatment and neglect of children;
― assault;
― gambling;
― prostitution;
― defilement.
In addition there are offences listed in only one or two States or Territories. For example:
― attempting to injure by explosive substances;
― endangering the safety of persons in aircraft;
― non-repair of public highway or bridge;
― nuisance to a public highway, river or bridge;
― kidnapping;
― defrauding charitable institutions;
― possessing house breaking implements.
In addition in Queensland[21] and Western Australia the common law as to compellability is preserved by legislation.
In Victoria a discretionary approach has been taken. It is provided in the Crimes Act 1958 s 400 that a spouse and former spouse witness is compellable in all cases. A discretion is given to the court, however, to exempt a spouse. The court must decide whether having regard to all the circumstances, the interest of the community in obtaining the evidence is outweighed by the likelihood of damage to the relationship or the harshness of compelling the giving of the evidence or both. The circumstances include:
― the nature of the offence charged;
― the importance in the case of the facts which the witness is to be asked to depose to;
― the availability of other evidence to establish those facts and the weight likely to be attached to the proposed witness’ testimony as to those facts;
― the nature, in law and in fact, of the relationship between the proposed witness and the accused;
― the likely effect upon the relationship and the likely emotional, social and economic consequences if the proposed witness is compelled to give the evidence; and
― any breach of confidence that would be involved.
A similar approach was recently taken in South Australia.[22] The structure of the proposal, however differs.
In New South Wales, recent legislation—the Crimes (Domestic Violence) Amendment Act 1982 has introduced a discretionary approach to determine the compellability of spouses and de facto spouses as witnesses for the prosecution in proceedings arising out of acts of ‘domestic violence’ committed by the other spouse or de facto spouse on them. Domestic violence is defined by reference to sections in the Crimes Act 1900 and includes failing to comply with restraint orders under the Act. De facto spouse is defined as ‘a person living with the accused person as the husband or wife of the accused person on a bona fide domestic basis although not married to the accused person’. The discretion is in the following terms:
407AA(4) A Judge or Justice may excuse the husband or wife of an accused person from giving evidence for the prosecution as referred to in subsection (2) if satisfied that the application to be excused is made by that husband or wife freely and independently of threat or any other improper influence by any person and that having regard to:
(a) the importance in the case of the facts in relation to which it appears that that husband or wife is to be asked to give evidence and the availability of other evidence to establish those facts; and
(b) the seriousness of the domestic violence offence with which the accused person is charged,
that husband or wife should be excused.
The approach differs from the Victorian legislation in a number of ways. It applies only to cases of domestic violence. It does not require the court to consider the impact on the relationship and on the witness of compelling a witness to give evidence. This would appear to reflect a policy decision that in this type of offence the community interest is having the evidence needed to prosecute offenders must prevail.
• The Spouse as Witness for the Accused—Compellability. Spouse witnesses are compellable for the accused for all offences in Queensland and Victoria. In Tasmania, the ACT, the Northern Territory, Western Australia and New South Wales, spouse witnesses are only compellable in relation to certain issues or certain charges. These are specified at some length in the legislation.[23] The common law has been preserved by legislation in Western Australia but abolished in New South Wales, the ACT and the Northern Territory. Finally, on Christmas Island and the Cocos (Keeling) Island, the legislation is silent on the issue of the compellability of the spouse.
The Spouse as Witness for the Co-Accused—Compellability. In the Northern Territory, Western Australia, New South Wales, and Queensland, a spouse witness is compellable for or against a co-accused person in respect of specified offences being those in respect of which a spouse is compellable for the prosecution and defence in those jurisdictions. It is also provided in South Australia that a spouse will be compellable to give evidence for the prosecution or the defence without the consent of the person charged with regard to the age or relationship of any child of the husband or wife.[24] In Tasmania the common law is preserved.
• Spouse as Co-Accused. In Victoria, Tasmania and Queensland it is expressly stated in the legislation that an accused jointly charged with his or her spouse is not compellable witness for his or her spouse.
• Informing the Spouse of his or her Rights. There are statutory provisions in Queensland, Western Australia, Tasmania and Victoria. The Western Australian provision, however, refers only to witnesses called on behalf of the prosecution, imposing a duty upon the judge to inform a wife or husband called by the prosecution that they are not compellable.[25]
• Definition of ‘Spouse’. The Tasmanian legislation as it applies to ‘spouses’ requires that the witness was the spouse of the accused at the time of the offence as well as at the time of trial. This requirement does not appear in other legislation.
• Spouses in Federal Courts. Spouses are competent and compellable witnesses in civil and criminal proceedings in the Family Court.[26] In other federal courts, however, criminal cases could arise where the spouse was not compellable. In Victoria and South Australia a spouse is a compellable witness for each of the patties in all criminal proceedings. In Queensland, a spouse is compellable for the accused in all criminal proceedings. In Queensland, for parties other than the accused, and elsewhere, for all parties, compellability exists only in relation to specified offences none of which would be heard in federal courts.
10. Other Witnesses. In South Australia and Victoria, parents and children of an accused can seek exemption from giving the whole or part of their evidence under the discretion referred to above.[27] In South Australia, the exemption is available to a ‘putative spouse’.[28] In other jurisdictions such witnesses are compellable witnesses for the prosecution in all cases.
11. Comment on Failure to give Evidence. In most Australian jurisdictions there are statutory provisions regarding the comments which may be made on the accused’s, or his or her spouse’s, failure to give evidence. A number of different approaches are taken:
• no comment by judge or counsel for the prosecution (subject to the right of the judge to comment where a co-accused has commented);[29]
• no comment by counsel for the prosecution. The judge may comment where a co-accused has commented;[30]
• no comment by counsel for the prosecution. Comment by judge permitted;[31]
• no legislative provision. The common law governs the situation so that comment by counsel for • the prosecution and the judge is permitted.[32]
Where judicial comment is prohibited, the judge is not permitted to tell the jury, intentionally or unintentionally, that the accused could have given evidence[33] even if the comment is intended to operate in the accused’s favour.[34] However, it should be noted that any prohibition on comment has been interpreted to relate specifically to the giving of evidence on oath.[35] In Bataillard v R,[36] Justice Isaacs stated:
If, however, reference, direct or indirect, and either by express words or the most subtle allusion, and however much wrapped up, is made to the fact that the prisoner had the power or right to give evidence on oath, and yet failed to give, or in other words, ‘refrained from giving’, evidence on oath, there would be a contravention of the sub-section now under consideration. The question whether the law has been so contravened must depend in each case on the words used and the circumstances in which they are used.[37]
The weight of authority favours the view that a general comment that the accused has failed to give an account of the relevant events does not infringe the prohibition, since that does not single out the giving of evidence on oath.[38] The New South Wales Court of Criminal Appeal in R v George and Price[39] extended this proposition to a situation where the accused had given an explanation to the police but had not given sworn evidence or made an unsworn statement at trial. It was held that a comment by the prosecution that the accused had ‘seen fit to stay dumb and mute’ was not a comment which was ‘directed, in a segregated and specific sense, to the failure of an accused person to avail himself of his right to give evidence’.[40] But Justice Hunt, dissenting, considered that ‘it is, in my view, extremely unlikely that jurors would have any knowledge of the additional, special and somewhat anomalous right of an accused to make an unsworn statement. The comment could thus have been understand as referring only to the failure of these accused to give evidence.’[41] It is clear that the prohibition relates to a comment that the accused has failed to give evidence on oath—a mere reference by counsel for the prosecution in his opening address that the accused has the right to give evidence on oath may not infringe the prohibition.[42]
12. It seems clear that any prohibition on judicial or prosecutorial[43] comment does not prohibit the tribunal of fact drawing such inferences as are legitimate under the common law.[44]
13. As to spouses, parents and children in Victoria or South Australia, neither the prosecution nor the judge may comment to the jury on the fact that the proposed witness has applied for an exemption from giving evidence and in South Australia the unsuccessful applicant may not be questioned about the application. However, both the judge and prosecutor may comment on the failure to call the spouse, parent or child.
14. Limits on Comment. Where judicial comment is permitted on the failure of an accused to give evidence, the limits on such comment are unclear. English courts at one time considered that the nature and extent of comment were entirely in the discretion of the trial judge and could not be reviewed on appeal.[45] But the Privy Council held in Waugh v The Queen[46] that there are limits upon the right of the judge to comment as he wishes. A judge should at least direct the jury that silence on the part of the accused does not amount to an admission of guilt nor can it constitute corroboration. But, apart from that, English courts have suggested different forms of comment appropriate for different cases.[47] A comment would be strong, for example, where the onus of proof of a defence was on the accused. There is little Australian authority, but what there is tends to follow English cases.[48] There is a tendency to caution in deciding whether to make a comment.[49] But, obviously, if the trial judge chooses to comment, he should comment consistently with the legal position on the availability and nature of permissible inferences.[50] If comments made are inconsistent with that legal position and ‘seriously prejudice a fair trial’ the discretion to comment is not properly exercised and ‘may be reviewed’ on appeal.[51]
[1] R v Brasier [1730] EngR 38; (1779) 1 Leach 199; 168 ER 202; Cheers v Porter [1931] ArgusLawRp 105; (1931) 46 CLR 521; R v Hill (1851) 2 Den 254; 169 ER 254.
[2] R v Hayes [1977] 2 All ER 288, 291; R v Brown (1977) Qd R 220, 238.
[3] Such a provision requires the judge to be satisfied that the witness has understood—R v Meier [1982] 30 SASR 126, 129.
[4] In R v Johnston [1982] 2 NSWLR 897, the NSW Court of Criminal Appeal held that this provision, and the general affirmation provision, may be read together.
[5] The difficulty of this expression was discussed in Brunsgard v Jennings [1974] WAR 36, 38-9. The provision was amended as above in 1976.
[6] R v Whithead (1866) LR 1 CCR 33.
[7] Singapore Evidence Ordinance s 12.
[8] Law Reform Commission of New South Wales, Working Paper, The Course of The Trial, Sydney, 1978, para 7.11.
[9] See Note (1901) 45 Sol Jo 569; Meyer v Hall (1972) 26 DLR (3d) 309.
[10] O’Callaghan v Murphy (1804) 2 Sch and Lef 158; R v Doolin (1832) 1 Jebb Cr Cas 123; Randall v Atkinson (1899) 30 OR 242, 255.
[11] R v Solomon and Thumbler (1958) 25 WWR 307, 316.
[12] Singapore Evidence Ordinance s 121.
[13] See JA Gobbo, D Byrne, JD Heydon, Cross on Evidence, Butterworths, 2nd Aust edn, Sydney, 1979, para 8.14; JD Heydon, ‘Obtaining Evidence versus Protecting the Accused: Two Conflicts’ [1971] J Crim L Rev 13; RM Gooderson ‘The Evidence of Co-prisoners’ (1953) 11 Crim LJ 279; Law Reform Commission of NSW, Working Paper, The Accused as a Witness, Sydney, 1978 (unpublished) para 1.10.
[14] See Crimes Act 1900, s 407 (NSW); Evidence Act 1906-1979 (WA) s 8(1); Evidence Act 1980 (NT) s 9(1); Evidence Ordinance 1971 (ACT) s 66(1)(2).
[15] s 8(1)(a).
[16] Singapore Evidence Ordinance s 121.
[17] Evidence Act 1977 (Qld) s 8; Crimes Act 1900 (NSW) s 407; Crimes Act 1958 (Vic) s 399(1); Evidence Act 1910 (Tas) s 85(1); Evidence Act 1929 (SA) s 18; Evidence Act 1906 (WA) s 8(1); Evidence Act 1980 (NT) s 9(I); Evidence Ordinance 1971 (ACT) s 66(1); Evidence Ordinance (Singapore as applied in Christmas and Cocos (Keeling) Islands) s 121(3).
[18] Hoskyn v Commissioner of Police for the Metropolis [1978] 2 All ER 136.
[19] Evidence Acts—(Qld) s 8; (Tas) s 85; (WA) s 89; (ACT) s 66, 74; (NT) s 9; Crimes Acts (NSW) s 40—applying also in Norfolk Island; Evidence Ordinance (Singapore as applied in Christmas and Cocos (Keeling) Islands) s 121(3). There are many other provisions in the legislation of the foregoing. Space does not permit their description. They were summarised in A Sowden, Evidence Research Paper No 1, Comparison of Evidence Legislation applying in Federal Court and Courts of the Territories, Australian Law Reform Commission, 1981, 20.
[20] A particular problem exists in Western Australia. There is a conflict between sections of the Evidence Act which provide that a spouse is not compellable except as stated in the Act and provisions in the Criminal Code which render a spouse compellable for the prosecution in relation to specific offences. See Law Reform Commission of Western Australia, Project No 31, Report on Competence and Compellability of Spouses to Give Evidence in Criminal Proceedings, Perth, 1977, para 4.2. In addition, s 71(3) of the Justices Act 1902 (WA) provides that on any complaint of a simple offence which is tried summarily, the spouse of an accused is a competent and compellable witness. This also conflicts with the Evidence Act. The point was considered in Harris v Markhan [1975] WAR 93, but it was not necessary to resolve the point. Also, in the ACT Court of Petty Sessions Ordinance (1930) s 58, it is provided that spouses are not compellable for the prosecution in criminal proceedings in that court. This is to be compared with the Evidence Ordinance s 66 which ties compellability to certain offences (which differ when compared with other jurisdictions).
[21] The Queensland provision, a spouse is compellable if ‘competent or compellable’ at common law, has been interpreted as meaning—if competent at common law, the spouse is compellable—R v Kaye [1983] 2 Qd R 202.
[22] Evidence Act Amendment Act (No 2) 1983, s 4 (creating new s 21).
[23] Space does not permit the listing of the offences and the legislation. Details are contained in Sowden, ch 1.7.
[24] Evidence Act 1929 (SA) s 21.
[25] Evidence Act 1906 (WA) s 8(1)(b).
[26] Family Law Act 1975 s 162.
[27] See n 17 and 19 above.
[28] A person ‘cohabiting’ with the accused ‘as husband or wife de facto’ of the accused who so cohabited for five years continuously (or a minimum of five years within six years) or who had sexual relations with the accused resulting in the birth of a child (the definition used is that in the Family Relationships Act 1975 (SA) s 11).
[29] Accused—NSW: Crimes Act 1900 s 407(2); Victoria: Crimes Act 1958 s 399(3) (but comment is possible if the accused made an unsworn statement); Northern Territory: Evidence Act s 9(3). Spouse or relative—Victoria: Crimes Act 1958 s 400(5); South Australia: Evidence Act 1929 s 21(4)(b).
[30] ACT: Evidence Ordinance, 1971 s 74—there is no other reference to comment by a judge. Presumably the maxim expressio unius est exclusio alterius would apply and the judge would not be allowed to comment in any other situation. Note that the provision is limited to trials for indictable offences.
[31] SA (accused only): Evidence Act, 1929 s 1811; WA: Evidence Act, 1906 s 8(1)(c); Tasmania: Evidence Act, 1910 s 850)(c). There is no reference to comment by the judge. The common law applies, allowing comment—R v Dutton (1979) 21 SASR 356, 380. This is also the position in England.
[32] Queensland and the Christmas and Cocos (Keeling) Islands. See R v Young [1969] Qd R 417, 435.
[33] R v Williams [1955] VicLawRp 89; [1956] VLR 96 (FC); R v Stojadinovic [1973] 2 NSWLR 807, 813 (CCA).
[34] R v McGibbon [1956] VicLawRp 34; [1956] VLR 424, 429 (FC): R v McFadden (1957) 57 SR (NSW) 262 (CCA).
[35] Bataillard v R [1907] ArgusLawRp 65; (1907) 4 CLR 1282, 1291; Bridge v R [1964] HCA 73; (1964) 118 CLR 600, 605, 608, 610.
[36] [1907] ArgusLawRp 65; (1907) 4 CLR 1282.
[37] id, 1291.
[38] R v Barron [1975] VicRp 51; [1975] VR 496, 502; R v Thornton (1980) 3 A Crim R 80, 84 (CCA Vic); R v Greciun-King [1981] 2 NSWLR 469, 471.
[40] id, 14.
[41] id, 16.
[42] Peterson v R [1979] FCA 82; (1979) 41 FLR, 205, 211-2 (Fed Ct).
[43] Note that no jurisdiction prohibits comment by counsel for a co-accused. This presents major problems for the trial judge in such a case: R v Hauser (1982) 6 A Crim R 68, 76.
[44] Windeyer J in Bridge v R [1964] HCA 73; (1964) 118 CLR 600, 615; R v McGibbony [1956] VR 424, 428; Dodds v Birch (1973-4) 11 UWAL Rev 298; Purdie v Maxwell [1960] NZPoliceLawRp 3; [1960] NZLR 599, 604. But cf R v Clarke and Wilton [1959] VicRp 84; [1959] VR 645, 653 where the Victorian Full Court stated that ‘where the failure of the accused to give evidence was not and could not be brought to the attention of the jury ... it would be wrong to bring into account the fact that the accused had declined to give evidence.
[45] R v Rhodes [1899] 1 QB 77, 83.
[46] [1950] AC 203, 212.
[47] R v Bathurst [1968] 2 QB 99, 107-8; R v Mutch [1973] 1 All ER 178; R v Sparrow [1973] 2 All ER 129.
[48] R v Templeton [1922] QSR 165; R v Lynch [1919] SALawRp 3; (1919) SALR 325; R v Phillips [1967] Qd R 237, 295.
[49] R v Buckland [1977] 2 NSWLR 452, 459; R v Martin (1983) 32 SASR 419, 435.
[50] See Windeyer J in Bridge v R [1964] HCA 73; (1964) 118 CLR 600, 615.
[51] Windeyer J in Bridge v R id, 613, citing Waugh v R [1950] AC 203.
15. The Oath. At common law, no particular form of religious oath is required but a witness must swear an oath in a form binding on his conscience. There are many differences of detail in the law relating to oaths. In most jurisdictions the common law requirements as to the form of oath are preserved by differing formulae.[1] There are differing views as to the appropriate form of oath for followers of non-Christian religions. There is authority, for example, for three different forms of oath for Hindus:
• swearing an oath in the Christian form but using one of the religious texts such as the Vedas or the Upanishads or the Bhagavagita;
• swearing ‘by the holy water of the Ganges and by the sacred animal, the cow’ and asking that ‘my soul be damned’ if I do not tell the truth’;
• using the normal Christian wording but touching the hand or foot of a Brahmin.[2]
A form of oath believed to be binding on a Buddhist is:
I declare, as in the presence of Buddha, that I am unprejudiced, and if what I shall speak shall prove false, or if by colouring truth others shall be led astray, then may the three holy existences, Buddha, Dhamma and Pro Sangha, in whose sight I now stand, together with the Devotees of the twenty two Firmaments, punish me and also my. migrating soul.[3]
Another form of oath appropriate for a Siamese Buddhist, however, may include a call to bring upon himself various kinds of death if he breaks his oath and also that he be cast into hell to go through innumerable tortures, including carrying water over the flames in a wicker basket to quench the thirst of the Infernal Judge. He may also ask that he might migrate into the body of a slave for as many years as there are grains of sand in the four seas and, after this, that he might be born a beast through five hundred generations and an hermaphrodite through five hundred more.[4] As to Chinese non-Christian witnesses, there appear to be at least three forms of oath recognised by the common law:
• Breaking the saucer. The witness is warned: You shall tell the truth and the whole truth; the saucer is cracked and if you do not tell the truth your soul will be cracked like the saucer.[5]
• Extinguishing a Candle or Lighted Match. Here the form of oath is: If I do not tell the truth, the whole truth or if I tell anything but the truth in this case, may the Great God extinguish my soul hereafter as I now extinguish this light. (The witness would then blow out the lighted match or candle).[6]
• Killing the Cock. Another form of oath[7] used involves the witness in a signing and reading aloud a solemn declaration written in Chinese on yellow paper. The witness then lays a rooster on a block and chops its head off and burns the paper containing the declaration in the flames of candles previously lit.
Many courts have handbooks which set out alternative forms of oaths. The handbooks used in the High Court, Federal Court and ACT Court of Petty Sessions contain different forms of oaths. The Commission has been advised that the Family Court applies the form of oath used in the Supreme Court of the State in which it sits. It has received conflicting advice as to whether the Federal Court does this or uses a form of oath prescribed in the Associate’s Handbook.[8]
16. The Queensland, Northern Territory and Norfolk Island legislation prescribes various forms of oath for different witnesses and different proceedings. In most jurisdictions, however, no detailed form of oath is provided by legislation. Some direction is, however, given about the administration of the oath. Here again, there are differences:
• Kissing the Bible. Only in Queensland, New South Wales and Tasmania, is there a provision expressly removing the necessity to kiss the Bible.
• Repeating the Words of the Oath. This is the only procedure prescribed in Victoria but is referred to as an alternative in New South Wales and Queensland.
• ‘So Help Me God’. In the New South Wales, Norfolk Island and Queensland legislation it is provided that after the official has made the adjuration to the witness, the witness should reply with the words ‘so help me God’. While this is an alternative procedure in New South Wales and Queensland, it appears to be the only procedure in Norfolk Island.
• ‘I Swear’. In Tasmania and South Australia it is provided that after the oath has been tendered to the witness, the witness shall say the words ‘I swear’.
Where the oath has been prescribed in legislation its form varies.[9]
17. The Affirmation. The problems of:
• the witness refusing to take the oath as contrary to religious beliefs;
• the witness with no belief in a god or divine rewards and punishment;[10]
• the particular form of oath being impractical to administer;
• the inability to establish what form of oath is appropriate;
have been dealt with in different ways in the various jurisdictions by permitting a witness to affirm.
• Unconditional Right to Affirm. In the High Court and the Federal Court and under the laws of Western Australia and Tasmania, a witness has an unconditional right to choose to affirm instead of swearing an oath. In addition, in New South Wales, Norfolk Island and the Northern Territory, a witness may, if he objects to giving evidence on oath, be allowed to affirm without specifying any grounds of objection.[11] It is understood that in the Australian Capital Territory Courts, witnesses are permitted to affirm.[12]
• Limited Right to Affirm. In other jurisdictions the right is limited.
(a) Right to Affirm Subject to Conditions. In several jurisdictions, a witness may affirm provided certain conditions are satisfied:
― no religious belief (South Australia and Victoria);
― against religious belief (South Australia, Victoria and Western Australia);[13]
― conscientious objection (Christmas and the Cocos (Keeling) Islands, and Queensland);
― against the witness’ conscience (South Australia);
― any other ground the court thinks sufficient (South Australia and Western Australia).[14]
(b) Right to Affirm where Oath is Impracticable. In South Australia, the Northern Territory, Western Australia, Queensland and Norfolk Island the courts may administer the affirmation where it is not reasonably practicable to administer an oath in an appropriate manner.
• Right to Affirm on Basis of Religious Beliefs. There is legislation in Queensland which enables Quakers, Moravians and Separatists to affirm. In those jurisdictions where the Quakers and Moravians Acts of 1833 and 1838 apply. Quakers and Moravians are permitted to affirm.[15] In Christmas and the Cocos (Keeling) Islands, Hindu and Muslim witnesses are permitted to affirm as are person who have religious beliefs according to which oaths are not binding.[16]
• Right to Affirm Where Not Competent to Take the Oath. Legislation applies in New South Wales, Norfolk Island, and the Northern Territory to the effect that where a party objects that a witness is not competent to take the oath or it appears to the court that a witness is not competent to take the oath, that a witness may be allowed to affirm.[17] This would also appear to be the case in the Australian Capital Territory.[18] Under Queensland law, in cases where a witness is incapable of understanding the nature of the oath, the judicial officer may declare in what manner the evidence shall be given.[19]
As with oaths, the form of affirmation varies in its detail in the various jurisdictions—for example, some ‘solemnly declare’, some ‘solemnly and truly affirm’ and others ‘solemnly, sincerely and truly declare and affirm’.[20]
18. Preserving the Validity of the Oath. There is no provision in Queensland and the Christmas and the Cocos (Keeling) Islands preserving the validity of an oath administered to a person who has no religious belief. There are no provisions in the legislation of Queensland, Western Australia or Tasmania preserving the validity of an oath that was not administered in accordance with the provisions of the legislation.[21] There are such provisions in the other jurisdictions. There appears to be uncertainty about the consequences at common law of receiving unsworn evidence, evidence improperly given on affirmation and evidence given where the requirements of the law have not been met.[22]
19. The Right. The right to make such a statement was abolished in 1975 in Queensland and in 1976 in Western Australia. It is available in New South Wales[23] the Australian Capital Territory and Norfolk Island in trials for indictable offences before juries but is not available in summary proceedings before magistrates. In South Australia it is not available in proceedings for a summary offence or in summary proceedings for an indictable offence. It is available in all criminal proceedings in Victoria and Tasmania.
20. Practice and Procedure. There are marked differences of approach in those jurisdictions where the right exists:
• The Stage at which Statements can be made. In New South Wales and Tasmania the unsworn statements must be given at the close of the case for the prosecution. In Victoria, there is a more detailed provision to the effect that, where no other witnesses are to be called on his behalf, the accused making an unsworn statement shall do so after the close of evidence for the prosecution. Where other evidence is to be called, however, the right to make an unsworn statement may be exercised at such a stage as he thinks fit after the close of evidence for the prosecution and before or after the opening, if any, to the jury of the evidence of any witnesses to be called.
• Opening the Evidence to the Jury. In Victoria, the accused or his counsel is not able to relate to the jury the substance of the evidence of the accused in opening the case where witnesses are called in defence.[24]
• Accused Giving Both Sworn and Unsworn Evidence. It appears possible under the legislation for the accused to make an unsworn statement and in addition to give sworn evidence. This apparently has occurred n New South Wales and Tasmania.[25] It appears not to have occurred in Victoria.[26] In South Australia, it appears that it is not a common practice.[27]
• Preparation.[28] There is Tasmanian authority that the statement must be the accused’s own and not that of his legal advisers. In Victoria and South Australia, it appears that it is an almost invariable practice for counsel to advise in detail on the preparation of the unsworn statement.[29] Ruling of the Victorian Bar Council of June 1979 gives guidance. It is as follows:
1. It should be recognised that the tight to make an unsworn statement is an entrenched right enabling the accused to make answer to a charge in his own words. Accordingly the client where possible should be asked to produce his own written statement of his own construction dealing with specific factual matters. Counsel is not entitled to draft it for him.
2. In the event of a client not requiring any written document to read or to refresh his memory while making his unsworn statement, counsel may discuss the statement with his client and advise on the matters to be dealt with. He may not suggest to his client that any irrelevant matter be dealt with, and he should be aware in general of the statement which his client intends to make so that he may advise that irrelevant matters should not be included in the statement.
3. In the event of a client requiring a written document to read or to refresh his memory while making his unsworn statement, counsel may advise his client (in writing if necessary) on the topics to be dealt with in the statement. For example, he may list the points of the Crown case which require answers. The client should then produce his own statement—the language and treatment should be that of the client and not that of counsel.
4. Counsel should look at any document produced for the purpose mentioned in the previous paragraph and should advise that any irrelevant matters be omitted. He may also advise that relevant matters omitted be included or that matters included should receive more space or emphasis in the written statement or that matters contained therein be presented in a certain logical sequence, or that certain phrases and words be altered so as to effectively express the client’s instructions, but he should not rewrite the statement.
5. Where a client is incapable of producing his own written statement of his own construction, counsel may take instructions from his client point by point and have the resulting document typed. At all times it must be borne in mind that the language must essentially be the client’s and the difference between the making of an unsworn statement embodying the client’s answer to the charge on the one hand and the taking of a proof of evidence on the other hand must be borne in mind along with the cardinal principle that counsel shall not draft his client’s unsworn statement.
The Rules of the NSW Bar Association[30] provide that:
A barrister is entitled to assist an accused person in preparing any statement to be made by that person from the dock and may, from material provided by such person, draft such statement provided that the accused person before he delivers the statement acknowledges to the barrister that he understands and agrees with the contents thereof.
• Use of a Written Statement. A written statement may be read in Tasmania,[31] South Australia and Victoria. The law in NSW, however is unclear as to whether the statement must be oral or not and whether the statement, if in writing, may be read.[32] The Select Committee of the Legislative Council of South Australia stated that reading a prepared statement is frowned on in New South Wales.[33]
• Reading by the Lawyer. The High Court has held that in South Australia the accused has no legal right to have his prepared statement read out for him by counsel or anyone else, even when he is illiterate. But it may be read out if the Crown consents.[34] In Tasmania, the statement may be in writing and it seems that it may be read by the accused’s counsel.[35]
• Prompting the Accused. It appears that a practice has developed in New South Wales and Victoria of allowing prisoners to be reminded by their advocate of any omission in their statement. In South Australia, the offer was made to defence counsel in the case of R v Stuart but was not accepted.[36] It has been held in New South Wales that the legislation which forbids examination of the accused by the court and the Crown does not prevent the court from asking questions about something about which nothing was said and which the accused may have forgotten.[37]
• Rebuttal of the Unsworn Statement. There is authority in New South Wales, Tasmania, Queensland and England, but not Victoria, recognising the right of the prosecution to adduce evidence in rebuttal subject to the same conditions that apply to evidence led in rebuttal of other evidence called by the accused.[38] In South Australia that right has been expressly conferred by legislation.[39] In recent cases in England and New South Wales it has been decided that evidence of the accused’s bad character may be led in rebuttal if the accused attempts to establish his own good character in his unsworn statement.[40]
• Right of Reply. In Victoria and New South Wales, in trials for indictable offences, the accused has the right of reply in all cases. This is not subject to any exception where the Attorney-General, Solicitor-General or counsel representing either of them appears for the prosecution. If, however, in the closing speech on behalf of the accused, relevant facts are asserted which are not supported by any sworn or unsworn evidence, the judge may give leave to counsel for the prosecution to make a supplementary submission.[41] Elsewhere however, the right of reply generally rests with the prosecution except where the accused does not call evidence, merely gives evidence himself or calls witnesses as to character.[42] In Tasmania, however, where the accused adduces evidence as to character, counsel for the Crown is entitled to reply, if in his opinion, there are special circumstances rendering it necessary. In the ACT, Queensland, Christmas Island and the Cocos (Keeling) Islands, the Crown prosecutor or Crown law officer has the right of reply in all cases.[43] In Western Australia, the Attorney-General may reply in all cases.
• Comment on the Unsworn Statement by Judge. There are no provisions prohibiting comment by the judge on the fact that the statement is not oath and the fact that the accused’s statement was not tested by cross examination. In the Northern Territory and New South Wales, however, there is legislation to the effect that the judge may not comment on the failure of an accused to give sworn evidence except where comments are made by a co-accused about that fact. In Victoria, the judge is expressly authorised to comment where an unsworn statement is made. In South Australia and Tasmania there is no legislative provision saying the judge may not.
21. Evidentiary Character of the Unsworn Statement. It was stated in Peacock v R[44] that an unsworn statement has probative value and must be considered ‘side by side’ with all the other evidentiary material in the case.[45] In that case the judge’s direction that an unsworn statement inconsistent with sworn testimony ‘must be disregarded’ was held incorrect. Subsequently, judicial statements have been made inconsistent with these statements.[46] In particular:
• Queensland. It has been held that a statement is persuasive rather than probative.[47] This view was not shared by Justice Wanstall, as he then was, in R v Macecek[48] who said that the unsworn statement had ‘an evidentiary character and effect’.
• New South Wales. The authorities are divided.[49] Recently, however, in the case of R v Cormack,[50] a majority of the New South Wales Court of Criminal Appeal held the judge might tell a jury that an unsworn statement ‘is not evidence in the same sense as a statement given upon oath. It has less cogency.’
• England. The Court of Criminal Appeal has expressed the view that an unsworn statement is not evidence—‘its potential effect is persuasive rather than evidential’. It argued that ‘It cannot prove facts not otherwise proved by the evidence before the jury’.[51]
The predominant view appears to be, however, that an unsworn statement of an accused is evidence which the court is bound to consider in reaching its decision in respect of that accused and that the court is required to give to it such weight as it thinks appropriate. This view is supported by authority in Victoria, South Australia, Tasmania, and the ACT.[52] The common law has been altered by legislation in South Australia. It distinguishes between ‘assertions’ made in ‘unsworn statements of fact’ and ‘evidence’. At the same time evidence is defined in a later part to include any statement before the court ‘whether or not it constitutes evidence for the purposes of the proceedings’.[53] How these provisions will be interpreted remains to be seen. The latter provision is contained in that part of the Act dealing with the court’s power to prevent publication.
22. Application of Rules of Evidence. The law is unclear on whether and in what circumstances irrelevant and otherwise inadmissible material may be included in an unsworn statement.[54]
• Hearsay Evidence. There is authority in Victoria that hearsay evidence may be included and authority in New South Wales that the accused has no right to include hearsay material.[55] There is no direct authority in Tasmania.[56] In South Australia, while the view has been expressed that the accused has the right to state such facts as he may think material, the Full Court has also expressed the view that the court may and sometimes does prevent inadmissible material from being read, although it is not always practicable to do so.[57] In that State, legislation now provides that ‘assertions’ may not be made in unsworn statements if they would be inadmissible as evidence.
• Relevant Evidence. In Victoria and New South Wales there is authority that irrelevant material may not be included.[58] In Victoria, there is also authority to the effect that the accused may not offer an explanation as to why he chose to make an unsworn statement rather than give sworn evidence on the ground that to do so would be irrelevant.[59] The comments made above for South Australia and Tasmania apply with respect to irrelevant evidence.
• Character. In South Australia, the accused who seeks to establish his own good character or attack that of the prosecutor or witnesses for the prosecution is liable to have evidence of bad character or of the commission of, conviction for or charging with offences if he could have been cross examined had he made the assertions on oath.[60] This provision does not exist in other jurisdictions.
23. Tendering of Exhibits. In Victoria it has been held that the legislation permits only the making of a statement of fact and accordingly letters and other documents and physical objects cannot be regarded as facts which were permitted to be stated.[61] The court, however, referred to the fact that an accused person may be permitted, by way of indulgence, to tender this type of material. The Law Reform Commissioner of Victoria took the view that the law in Victoria was that it was a matter for judicial discretion and he did not recommend any statutory formulation.[62] In New South Wales there is authority that a material object may be placed in evidence through the unsworn statement without complying with the normal rules of admissibility.[63]
24. Unsworn Statements in Joint Trials. There is authority in Victoria, South Australia, Queensland and Tasmania to the effect that an unsworn statement cannot be used as evidence against a co-accused. The reasoning behind this rule is that the co-accused is unable to cross examine the accused who makes the unsworn statement.[64] There is also English authority to the effect that a co-accused may not lead evidence to rebut an attack made by the accused who made an unsworn statement, as it is not evidence admissible against him.[65] On the issue of whether an unsworn statement by one accused may be used to assist the other in his defence, there is New South Wales authority to the effect that this is not permissible,[66] while there is English authority to the contrary.[67] The issue received some detailed consideration by the South Australian Supreme Court in R v Harbach[68] where a third position was taken. After referring to the above cases, the majority argued that an unsworn statement by one accused could not discharge any onus of proof which may have rested on another accused or have any independent probative effect in his favour.
If, for example, on a joint trial of A & B, A raised insanity and the only material offered in proof of insanity was something in the unsworn statement of B, the judge would have to direct the jury that the question of insanity did not arise.[69]
The majority argued, however, that where the situation arises that each of the accused is blaming the other the situation is an adversary one and each accused should be able to attack the unsworn statement of the other and use it also to support his own case. They comment that:
Arguments for these purposes can hardly be advanced without reference to both unsworn statements. It would, in our view, be absurd to suggest that counsel for A in his address was forbidden to refer to B’s statement, or vice versa. Obviously each accused in such a case must be able to make use of the unsworn statement of the other to destroy it. The whole argument in favour of joint trials when each of the accused blames the other is that the jury should hear the whole story. They were going to look at the story, counsel must be able to do the same. The majority emphasised that if the unsworn statements corroborate and confirm each other a totally different situation arises.
The majority did not propose that the prosecution be able to use the material against each accused.
[1] eg, it may be taken in any lawful form (Qld, NSW, Vic, SA and NT); it may be taken in a form declared by a person to be binding (NSW, SA, Tas, WA, NT, NI).
[2] SW Johnston, ‘The Witness Sworn Saith ...’ (1956) 30 ALJ 75, 76; Omychund v Barker [1744] EngR 927; (1744) 1 Atk 21; M Weinberg, ‘The Law of Testimonial Oaths and Affirmations (1976) 3 Mon UL Rev, 26, 27.
[3] FA Stringer, Oaths and Affirmations in Great Britain and Ireland, 3rd edn, Stevens & Sons Ltd, London, 1910, 139.
[4] See W Kett, ‘Oaths’ (1952), 25 ALJ 681.
[5] R v Entrehman and Samut [1842] EngR 94; (1842) Car & M 248; 174 ER 493; M Weinberg, ‘The Law of Testimonial Oaths and Affirmations’ (1976) 3 Mon UL Rev 26. It is alleged that in one trial, relating to a Chinese gang feud, numerous Chinese witnesses gave evidence and the last witness appearing to give evidence stood ankle deep in smashed crockery – JH Chadboum (ed) Wigmore on Evidence, vol 6 para 1818; Little, Brown & Co, Boston, 1976. For a different formula see Stringer, 141-2.
[6] Johnston, 75.
[7] R v Ah Wooey (1903) 9 BC 569.
[8] One view is that the requirements in the Federal Court Associates Handbook constitute a direction under the Federal Court Act 1976, s. 38. In Victoria, however, the Federal Court uses the oaths used in the Supreme Court of that State.
[9] For more details of the legislation see A Sowden, Evidence Research Paper No 1, Comparison of Evidence Legislation Applying in Federal Courts and Courts of the Territories, Australian Law Reform Commission, 1981, Sydney, ch 2.
[10] The requirement laid down in Omychund v Barker [1744] EngR 927; (1744) 1 Atk 21; 26 ER 22.
[11] See Oaths Act: (NSW) s 12-3; (NT) s 25; see Oaths Ordinance (NI) s 14.
[12] Note Oaths Act 1900 (NSW) s 13; Seat of Government Act 1909 s 6(1); Court of Petty Sessions Ordinance 1930 (ACT) s 55; Court of Petty Sessions (Civil Jurisdiction) Ordinance 1982 (ACT) s 195; Interpretation Ordinance 1967 (ACT) s 15.
[13] In Western Australia, a witness may be required to affirm on the grounds set out in this subparagraph but also has the unconditional right to do so—see above and Evidence Act 1906, s 97 and s 99 respectively.
[14] Evidence Act 1929 (SA) s 8; Affirmations Act 1892 (WA) s 1.
[15] (1833) 3 and 4 William IV c 49 and (1838) 1 and 2 Vic c 77 still applies in WA and possibly some other jurisdictions: Oaths Act 1967 (Qld) s 15 and 19.
[16] Oaths Ordinance (Singapore) s 5(1).
[17] Oaths Act: (NSW) s 12-3; (NT) s 25; Oaths Ordinance (Norfolk Island) s 14.
[18] See n 12 above.
[19] Oaths Act Amendment Act 1884 (Qld) s 2.
[20] Respectively NSW and NT; SA: Vic, Tas and WA.
[21] Elsewhere see Oaths Acts: (NSW) s 119, (NT) s 21, 22; Evidence Acts: (Vic) s 100, (SA) s 6-8.
[22] See Re & Smith, 9-10, 21; R v Marsham [1912] UKLawRpKQB 56; [1912] 2 KB 362; Richards v Hough (1882) 51 LJ QB 361; Birch v Somerville (1852) 2 CLR 243; Da Costa v The Queen [1968] HCA 51; [1968] 118 CLR 186; Andrews v Armitt (1971) 1 SASR 178; R v Smith [1906] NSWStRp 3; (1906) 6 SR (NSW) 85; R v Moore (1892) 8 TLR 287.
[23] Evidence Act: SA s 18VIII; Vic s 25; Crimes Act: NSW as applied in ACT and Norfolk Island s 405; Vic s 399(8); Criminal Code (Tas) s 371(f). Investigation has not resolved the question whether the right is available in the Christmas and Cocos (Keeling) Islands.
[24] The Law Reform Commissioner of Victoria recommended that this anomaly be removed. Report No 11—Unsworn Statements in Criminal Trials, Melbourne 1981, para 4.03.
[25] Law Reform Commission of NSW Discussion Paper, Unsworn Statements of Accused Persons (1980) para 15. The Commission’s research in New South Wales suggests that it is infrequent. It is known to have occurred twice in Tasmania: Sir George Crawford, Submission (20 March 1982).
[26] Law Reform Commission of Victoria, 31.
[27] The Final Report of the Select Committee of the Legislative Council (SA) on Unsworn Statements and Related Matters, (1981) PP 150, 9.
[28] Masmec v R [1962] TASStRp 25; [1962] Tas SR 254, 260; Curtis v R [1972] TASStRp 5; [1972] Tas SR 21, 33.
[29] Law Reform Commission of Victoria, 27; Select Committee of the Legislative Council of South Australia, Final Report, 14.
[30] (1980) r 55.
[31] The Criminal Code Act 1924, s 371(f) provides that an accused person may make an unsworn statement either orally or in writing. The practice has been to have the accused sign the written statement in the jury’s presence, for counsel to read it to the court, and for it to be tendered and go to the jury (s 9 and s 3); Masnec v R [1962] TASStRp 25; [1962] Tas SR 254, 260; R v Burles [1964] TASStRp 21; [1964] Tas SR 256; Curtis v R [1972] TASStRp 5; [1972] Tas SR 21, 33.
[32] R v Tyford [1893] NSWLawRp 23; (1893) 14 LR (NSW) 51; R v Morrison [1889] NSWLawRp 43; (1889) 10 LR (NSW) 197; R v Syron, Supreme Court of NSW, CCA, unreported 23 Nov 1973.
[33] Final Report, 14. The Commission’s research suggests that it is the exception and judicial practice varies.
[34] Stuart v R [1959] HCA 27; (1959) 101 CLR 1, 8.
[35] See Tasmanian Criminal Codes 371(f); Masnec v R [l962] Tas SR 254; R v Burles [1964] TASStRp 21; [1964] Tas SR 256; Curtis v R [1972] TASStRp 5; [1972] Tas SR 21, 33.
[36] [1959] SASR 144. See generally Odgers, RP 2, 35, 38.
[37] R v Ditton (1927) 44 WN (NSW) 81, 87-88 (Street CJ).
[38] See Final Report of the Select Committee of the Legislative Council of South Australia, 10. See also R v Campbell (1979) 69 Cr App R 221, 226; R v Gibson [1929] NSWStRp 36; (1929) 30 SR (NSW) 282; Masecek v R [1962] TASStRp 25; [1962] Tas SR 254, 258, R v Macecek [1960] Qd R 247.
[39] Evidence Act Amendment Act 1983, s 3; Principal Act s 18(a)(3).
[40] R v De Vere [1981] 3 WLR 593, R v Stalder [1981] 2 NSWLR 9.
[41] Evidence Act: (NT) s 11; (SA) s 20; Criminal Code: (Qld) s 619; (Tas) s 371; (WA) s 637; Criminal Procedure Code (Singapore) s 197. See also Crimes Act (NSW) s 402, 405.
[42] See JA Gobbo, D Byrne, JD Heydon, Cross on Evidence, Butterworths, 2nd Aust edn, Sydney, 1979, para 10.14. See also legislation referred to in Sowden, RP 1, 93, 94. A recent authority on joint trials is R v Drinkwater [1981] 27 SASR 396.
[43] Criminal Code Act 1899 (Qld) s 619; Criminal Procedure Code (Singapore) s 197. Criminal Code (WA) s 637; The common law position is stated in R v Bruce (1850) Legge 591.
[44] [1911] HCA 66; (1911) 13 CLR 619.
[45] id, 647, 674, 640-41.
[46] See also R v Cormack (1979) 1 A Crim R 471; Fullagar J (dissenting) in R v Lane [1983] VicRp 105; (1983) 8 A Crim R 182, 196-203; R v Dugan, unreported (l5 March 1984) (NSWCCA).
[47] R v McKenna [1951] St R Qd 299, 307.
[48] [1960] Qd R 247, 258.
[49] Evidence: R v Riley (1940) SR (NSW) 111; R v Avery [1965] NSWR 1419, 1422; R v Raymond [1974] 2 LR (NSW) 677, 680. Not Evidence: R v Morrison (1889) 10 LR (NSW) 1970: R v Kell, [1946] NSWStRp 16; (1946) 46 SR (NSW) 344, 348.
[51] R v Coughlan (1977) 64 Cr App R 11, 17.
[52] Note detailed discussion of the authorities by Smithers J in Sorgenfrie v R (1981) 3 A Crim R 404 (FC). See also R v Simpson [1956] VicLawRp 35; [1956] VLR 490; R v Lane [1983] VicRp 105; (1983) 8 A Crim R 182 (VCCA) and R v Mandica (1980) 24 SASR 394, 401 (FC). See also, M Cohen, ‘Unsworn Statement from the Dock’ [1981] Crim L Rev, 224. Its use vis-a-vis a co-accused is considered below—para 8. See also R v Calabria (1982) 31 SASR 423, 433 but compare R v Mandica (1980) 4 A Crim R 34, 40.
[53] Evidence Act Amendment Act 1983, s 3 (creating new s 18a(2) and (3)) and s 5 (substituting s 68).
[54] See also R v Attard [1970] 1 NSWR 750, 754; R v McMahon [1891] VicLawRp 88; (1891) 17 VLR 335; R v Wyatt [1972] VR 903.
[55] See R v McMahon [1891] VicLawRp 88; (1891) 17 VLR 335; R v Howard (1932) SR (NSW) 541; R v Kilby (No 1) (1969) 91 WN (NSW) 845.
[56] A practice that has been followed is to insist that Crown Counsel see any written statement and for Crown Counsel to object to any inadmissible material before the statement is read. The trial judge has then ruled on the objection.
[57] R v Stuart [1959] SASR 144, 150.
[58] See R v Wyatt [1972] VicRp 105; [1972] VR 902 and R v Perceval [1981] VicRp 62; [1981] VR 624, 629
[59] R v Perceval [1981] VicRp 62; [1981] VR 624, 629.
[60] Evidence Act Amendment Act 1983, s 3 creating new s 18(a)(4).
[61] R v Wyatt [1972] VicRp 105; [1972] VR 902, 907f.
[62] Law Reform Commissioner of Victoria, 30-1.
[63] R v See Lan [1932] NSWStRp 14; (1932) 32 SR (NSW) 363, Street CJ dissenting.
[64] R v Simpson [1956] VicLawRp 35; [1956] VLR 490, R v Evans [1962] SASR 303, 308-9; R v Phillips [1967] Qd R 237; Frost v R [1969] TASStRp 20; [1969] Tas SR 172. But it was held in R v Barnett [1983] VicRp 26; [1983] VR 319 that unsworn statements by two accused to show that they were collusive concoctions (query whether the analogy drawn with the limits of the hearsay rule is appropriate).
[65] R v George (1979) 68 Cr App R 210.
[66] R v Kelly [1946] NSWStRp 16; (1946) 46 SR (NSW) 344.
[67] R v Callaghan (1971) 64 Cr App R 11.
[68] [1973] 6 SASR 427, 436-8.
[69] id, 437.
25. Refreshing Memory in Court—Conditions. Cross argues that there are four conditions which must be satisfied:
the document must have been made substantially at the same time as the occurrence of the event to which the witness is required to depose, it must have been made by, or under the supervision, of the witness, it must be produced to the Court or opposite patty on demand, and, in one class of case, the document must be the original.[1]
This statement requires some comment and qualification:
• Contemporaneity.[2] The requirement that the document must have been made substantially at the same time as the occurrence of the events in question introduces a degree of flexibility. An examination of cases reveals that the test has allowed a witness to refresh his memory from a document made fourteen days after the events in question.[3] This may now be thought to be too long. The formulation of the condition, however, has varied—the document must have been made contemporaneously with,[4] or the events deposed shortly after[5] the events deposed to; with the more recent judicial utterances preferring a test of ‘freshness of memory’ on its own[6] or combined with the first formulation.[7]
• Authorship of the Document. While it is clear that the witness may refresh his memory from a document that he himself made, there are different views as to the use of documents prepared by others. There is authority that it is enough that the document should have been made under the witness’ supervision.[8] It has been held however that supervision alone is not sufficient. There must be some limitation importing to the witness a personal knowledge of the contents of the memorandum—such as verification.[9]
• Original or True Copy. Authority is somewhat divided as to the circumstances in which a witness may use a copy to refresh his memory in the witness box:
― Evidence of the Accuracy of the Copy. It has been held[10] that a witness may refresh his memory if he can swear to the accuracy of the copy as, for instance, if read and examined by him at the time it was made or shortly afterwards. Opinions have been expressed, however, that a copy may be used if another witness testifies to the accuracy of the copy.[11]
― The Time of the Making of the Copy. There is conflicting authority as to whether it is necessary that the copy was made when the events were fresh in the memory of the witness. There is old English authority that it must have been,[12] that it need not have been[13] and that it may not be used when the original is available, even though illegible.[14] The South Australian Full Court, however, has held that there is judicial discretion to allow the use of a copy prepared some time after the event. It also stated that the discretion should be exercised with caution.[15]
26. Refreshing Memory in Court—Practice and Procedure. A number of points arise:
• Exhausting Memory. A witness will be allowed to refer to a document to refresh his memory only if there is a need to do so. It is not clear, however, whether the witness must give as much evidence as he can without reference to the document before being allowed to refer to it,[16] or whether the witness may be allowed to refer to the document at each stage in his evidence at which he needs to refer to the document to refresh his memory.[17]
• Reading the Statement. Some Australian authority appears to support the view that a witness is not entitled to read the contents of the document to the Court.[18] There is English authority, however, that it is permissible for the witness to read from the notes from the start of the witness’ evidence.[19] In practice this is often done.
27. Refreshing Memory Out of Court. There are several areas of disagreement:
• Production of the Document. There is New South Wales authority that the document should be produced and that denial of access to the relevant documents is a ground for quashing a conviction.[20] There is authority to the contrary.[21] There is authority in South Australia, Tasmania and Queensland, that while the document should be produced, a failure to do so will go to weight, not to admissibility.[22] The Queensland Court of Criminal Appeal however, criticised a trial Judge for refusing to direct production and for failing to instruct the jury on the significance of non-production.[23]
• Informing Party of Refreshment Out of Court. There is English authority that the opponent of the party calling the witness should be informed that the witness refreshed his memory out of Court.[24] This, however, does not appear to be a rule of law.[25] There does not appear to be any authority directly in point in Australia.
28. Witness Giving Evidence Without Revival of Memory. There may be disagreement between State courts on the question of whether evidence may be given without production of the original memorandum in circumstances where the witness memorised the document out of court without reviving his memory and where the party against whom the evidence is led does not object or does not call for such production. In Holm v Smith,[26] Justice Townley took the view that, whether the document was called for or not, the evidence was not admissible unless the document was produced in court. In the same year, Justices Stanley and Mack expressed their disagreement with this view in R v Bryant (No 2).[27] The Victorian Full Court also rejected this view in R v Alexander.[28] The South Australian Full Court in R v Shea[29] simply stated that ‘the original must be produced unless lost or destroyed’, without requiring an initial request by opposing counsel. Similar statements appeared in Collaton v Correll[30] and Mather v Morgan.[31] If, however, the document is called for and is not produced, the evidence, to the extent that it is based on the document, is inadmissible.[32] This applies whether the witness gives evidence on the basis of the document in court or memorises it out of court. In addition, while there is authority that the document may be tendered as an exhibit,[33] the issue was left unresolved by the Victorian Full Court in R v Alexander.[34] The differing hearsay legislation is of relevance here.[35]
29. Introduction. A leading question has been defined as a question which either:
• suggests the answer desired; or
• assumes the existence of disputed facts as to which the witness is to testify.[36]
An example of the first type of question would be—‘Did you see another car coming very fast from the opposite direction?’ An example of the second type of question would be ‘What did you do after Smith hit you?’ put to the plaintiff in an assault action before he had given evidence that he had been hit by Smith.[37]
30. The Common Law. Generally, a party may not, in the course of questioning a witness called by that party, put questions to the witness in a leading form. If a leading question is put to a witness during examination in chief and answered, the answer will not be inadmissible but the fact that the question was a leading question will affect the weight given to the answer.[38] The weight of authority, however, supports the view that the trial judge may, in the exercise of his discretion, permit a party to put leading questions to a witness called by that party.[39]
31. There are several situations in which it has been recognised that a party may put leading questions to a witness called by that party. They include:
• Formal and Introductory Matters. A witness may be led through formal introductory matters such as his name and address and matters that are not disputed.
• Expediting the Examination in Chief. There are situations where a witness may be asked leading questions so that his mind may be focussed upon particular points—for example, to help a witness identify a person or thing in court;[40] what another witness has said for the purpose of asking the witness to agree or disagree with it.[41]
• Expediting the Trial. In the case of Ex parte Bottomley[42] it was held permissible to allow witnesses in a second hearing of a case before a magistrate to have put to them their depositions in the form of along leading question.
• The Unco-operative Witness. There is authority that a witness may be questioned by leading questions relating to the contents of a written statement made by the witness prior to the trial although that witness is not declared formally to be hostile—R v Neal.[43]
In practice, however, the view is taken that no leading questions are allowed and that they may be asked only with the express or implied consent of opposing parties.
32. Legislation. Legislation[44] applying in the Christmas and the Cocos (Keeling) Islands forbids leading questions if objected to by the adverse party except with the leave of the court. It directs the court to permit such questions as to matters which are ‘introductory or undisputed’, but goes further than the common law in allowing such questions on matters ‘which have in its opinion been already sufficiently proved’.
33. Rules. Rules of the Federal Court and New South Wales Supreme Court provide[45] that a party calling a witness to give evidence of an investigation, inspection or report made by that witness in the course of carrying out public or official duties may ask that person leading questions unless the court otherwise directs.
34. Introduction. On occasions a witness will give evidence which is unfavourable to the party calling him. At common law, the party calling the witness generally cannot attack the evidence of that witness by cross-questioning the witness to challenge either the substance of the evidence or the witness’ credibility.[46] The party, however, does have options open to him which will enable him to indirectly and directly challenge such evidence and the witness.[47]
35. Indirect Challenge. In Queensland and Tasmania, under legislation modifying the hearsay rule, a party may seek to tender a prior statement made by the witness.[48] There is conflicting English authority, however, as to whether the legislation can be used in these circumstances.[49] The issue was specifically dealt with in the Evidence Ordinance 1971 (ACT). It permits the tender of the statement subject to the leave of the court being obtained.[50]
36. Direct Challenge. At common law, the party calling the witness may, with the leave of the court, cross-question a witness called for his client by leading questions as to facts recorded in a previous statement made by that witness inconsistent with the witness’ testimony. The procedure is a limited one. It was allowed by Justice Dixon in R v Neal Regus and Morgan[51] where during the course of the prosecution case, a witness for the prosecution gave evasive answers and professed himself unable to recollect certain events. On an application by counsel for the prosecution to have the witness declared hostile and for permission to cross-examine him generally, Dixon J without determining whether the witness was ‘hostile’, gave leave to counsel for the prosecution to cross-examine the witness by leading questions in conformity with the terms of the written statement made by the witness in the course of the preparation for the trial.[52]
37. The cross-examination was, accordingly, in the first instance, confined to establishing the facts stated in the previous written statement: it was not directed to establishing that the witness had made the previous written statement. Counsel was permitted to place the previous written statement in the hands of the witness and to put to the witness direct or leading questions as to what were the facts, such questions being based on and conforming to the statement of those facts contained in the writing. Counsel was not permitted to read aloud to the witness any passages in that written statement, nor was the witness permitted, in answering these questions, to read aloud to the jury any passage in the written statement. The Full Court further commented:
[this] should not be taken as authorising the cross-examination of the party’s own witness simply because the witness has strayed from his proof. The procedure ... will generally be appropriate only where a witness is in effect adverse or hostile but the judge decides to allow limited cross-examination without the necessity of declaring that the witness is hostile.[53]
There is also legislation in the ACT dealing with the issue[54] which enables the party to go further:
60(2) On the application of the patty by whom a witness has been called, the court may grant leave to the party—(a) to prove that the witness has, at another time, made a statement inconsistent with his evidence; or
(b) to cross-examine the witness as to whether he has, at any time, made a statement inconsistent with his evidence.[55]
(3) The court may grant an application under the last preceding sub-section whether or not it is alleged or proved that the witness is adverse to the party by whom he is called.
(4) A party is not entitled to prove that a witness has made a statement inconsistent with his evidence unless the witness has been informed of sufficient of the circumstances of the making of the statement to identify the occasion on which the statement was made and has been asked whether he made the statement.
38. There are also provisions operating in the Christmas and Cocos (Keeling) Islands:
155. The court may, in its discretion, permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party.156. The credit of a witness may be impeached in the following ways by the adverse patty or, with the consent of the court, by the party who calls him:
(a) by the evidence of persons who testify that they from their knowledge of the witness believe him to be unworthy of credit;
(b) by proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence;
(c) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted.[56]
There are statements to the effect that s 155 is intended to be used where a witness unexpectedly makes statements adverse to the party’s interest. It is said that common fairness requires that the judge should permit any such statement to be tested by cross-examination if the evidence is to be relied upon. It has also been said that it is enough that there is evidence that is adverse to the party calling the witness.[57]
39. The Hostile Witness. A party may seek to have a witness called by it declared ‘hostile’ by the court. The generally accepted definition of the ‘hostile witness’ is that he is a witness who is ‘not desirous of telling the truth at the instance of the party calling him’.[58] There is differing authority on a number of points:
• Procedure. There is authority that a voir dire should be held to determine whether or not a witness is hostile.[59] In R v Hunter,[60] however, it was said that a voir dire should be held where reliance is placed on a prior inconsistent statement but the judgment is silent as to the procedure in other cases.[61]
• Rebuttal. The general rule is that a cross-examiner is bound by answers he receives to questions relating to collateral matters going solely to the credit of the witness. There is conflicting authority on whether the explanation of a prior inconsistent statement may be rebutted.[62]
40. Consequences of Declaring a Witness Hostile. In considering this issue, it is necessary to refer to a provision common to State and Territory legislation.[63] This legislation is based on the provisions of the Common Law Procedure Act 1854 [Eng] S 22, later re-enacted in the Criminal Procedure Act 1865, s 3. The legislation in Australia governs civil and criminal cases alike. That of New South Wales (which is in the terms of the English legislation) provides:
53. A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but he may if the witness in the opinion of the Court proves adverse:(a) contradict him by other evidence; or
(b) by leave of the Court prove that he has made at other times a statement inconsistent with his present testimony;
but before such last mentioned proof can be given, the circumstances of the supposed statements sufficient to designate the particular occasion must be mentioned to the witness, and he must be asked whether or not he has made such statement.[64]
The Western Australian, Northern Territory and South Australian provisions are similar.[65] The Victorian, Queensland and Tasmanian provisions are worded slightly differently[66] under these provisions it is expressly provided that a witness may be contradicted by other evidence whether declared adverse or not. Several other differences of approach should be noted:
• Cross-examination as to bad character. The legislation prohibits a party from impeaching the credit of a witness called by that patty ‘by general evidence of bad character’.[67] The Full Court of the Supreme Court of Victoria has expressed the view that insofar as hostile witnesses are concerned, the right to cross-examine such witnesses that existed at common law continues and is as wide as is the case in the cross-examination of a witness called by an opposing party.[68] The view appears to have been taken in England, however, that the legislation has the effect that the witness cannot be cross-examined about bad conduct on former occasions or previous convictions for the purpose of affecting his credit.[69]
• Other Limits on Cross-Examination. There is also a conflict of authority as to whether any other limits may be imposed on the cross-examination. No limits—R v Hunter.[70] For limits—Justices Walters and Wells impliedly upheld the trial judge’s decision to grant leave to cross-examine on limited topics in R v Jacquier.[71]
• Weight. Where a witness has been declared hostile and cross-examined on a prior inconsistent statement, the weight to be placed on the evidence will be a matter for the tribunal of fact. There is disagreement on whether the judge must direct the jury that the evidence is unreliable.[72]
41. Protection of Witnesses. There is common law authority that a trial judge has the power to disallow unfair questioning.[73] In all States and Territories there are provisions similar to the following provision found in the Evidence Ordinance 1971 (ACT):
(1) A court may disallow a question which, in the opinion of the court, is indecent or scandalous unless the question relates to a fact in issue in the proceeding or to matters necessary to be known in order to determine an issue of fact in the proceeding.(2) A court may disallow a question which, in the opinion of the court, is intended only to insult or annoy or is needlessly offensive in form.[74]
In addition, there is legislation in South Australia and the Northern Territory which enables a court to disallow in cross-examination questions which appear to be ‘vexatious and not relevant to any matter proper to be inquired into in the proceeding’.[75]
42. The Family Law Act 1975 (Cth) s 101 provides the court shall forbid the asking of, or excuse a witness from answering, a question that it regards as offensive, scandalous, insulting or humiliating, unless the Court is satisfied that it is in the interests of justice that the question be answered. The provision differs from the State and Territory legislation in several ways, including:
• it appears to deal with the substance not the manner of the questioning;
• it is mandatory in terms;
• it deals with ‘insulting’ questions but is not restricted to those ‘intended only to insult’;
• it does not deal with ‘indecent’ or ‘vexatious’ questions but includes ‘humiliating’ questions;
• it enables the court to permit the questions if to do so is in ‘the interests of justice’—a wider concept than those spelt out in the State and Territory provisions dealing with indecent or scandalous questions. The other State and Territory legislation does no spell out any basis for permitting the question.
43. Leading Questions in Cross-Examination. There is authority that leading questions may always be asked by the cross-examiner. For example in the case of Parkin v Moon[76] Baron Alderson stated:
I apprehend you may put a leading question to an unwilling witness on the examination in chief at the discretion of the Judge; but you may always put a leading question in cross-examination, whether a witness be unwilling or not.
The issue was examined in some depth in Mooney v James[77] by Justice Barry. His Honour took a different view:
I consider the learned Baron overstated the position, however, and that there is no absolute right to put leading questions in cross-examination. The basis of the rule that leading questions may be put in cross-examination is the assumption that the witness’ partisanship, conscious or unconscious, in combination with the circumstance that he is being questioned by an adversary will produce a state of mind that will protect him against suggestibility. But if the Judge is satisfied there is no ground for the assumption, the rule has no application, and the Judge may forbid cross-examination by questions which go to the length of putting into the witness’ mouth the very words he is to echo back again.[78] Answers given in such circumstances usually would not assist the Court in its investigation because they would be valueless, and in the exercise of his power to control and regulate the proceedings the Judge may properly require counsel to abandon a worthless method of examination.
It is not unusual for judicial officers to deny the existence of such a discretionary power. The weight of authority[79] however supports the view that the court may prohibit the asking of leading questions by the cross-examiner. It is suggested that it is the basis of the power to control leading questions in examination in chief.
44. The Christmas and the Cocos (Keeling) Islands legislation permits leading questions provided that in cross examination:
(a) the question must not put into the mouth of the witness the very words which he is to echo back again; and
(b) the question must not assume that facts have been proved which have not been proved, or that particular answers have been given contrary to the fact.
It also confers a discretion to prohibit leading questions of a witness ‘who shows a strong interest or bias in favour of the cross-examining party.’[80]
45. Cross-Examination on the Prior Statements of the Witness. There is legislation in all States and Territories laying down procedures to be followed where a party seeks to cross-examine a witness as to statements in writing of the witness. The legislation in reasonably uniform in its substance. The ACT provision is:[81]
62. (1) Subject to the next succeeding sub-section, a witness may be cross-examined as to –(a) a statement made by the witness in writing or made by the witness and reduced into writing whether by the witness or another person; or
(b) evidence given by the witness before a court, without the statement, or the deposition or transcript containing the evidence, being shown to him.
(2) Proof of the making of a statement or of the giving of the evidence referred to in the last preceding sub-section shall not be given for the purpose of contradicting the witness unless the attention of the witness has been directed towards those parts of the statement or evidence that are to be used to contradict him.
(3) Notwithstanding the last preceding sub-section, a court may at any time during the hearing of a proceeding direct that the writing containing a statement or the deposition or transcript containing the evidence referred to in sub-section (1) of this section be produced to the court, and the court may make such use in the proceeding of the writing, deposition or transcript as the court thinks fit.
46. The legislation of Tasmania, New South Wales and Western Australia differs in that it also refers to ‘a previous statement supposed to have been made by the witness ...’ and evidence supposed to be given by the witness before any justice.[82]
47. There is a further difference in the legislation. In most provisions the cross-examination is expressly limited to statements in writing or reduced into writing ‘relative to the subject matter of the cause or prosecution’.[83] In the legislation of Tasmania, New South Wales, Western Australia and the ACT, however, the expression does not appear. As a result it may be argued that such legislation controls cross examination on documents on collateral matters but the other legislation does not.[84] Where the legislation does not apply, then the common law rule in The Queen’s Case must be considered.[85] The legislation was enacted to overcome this rule. The rule laid down two conditions for cross-examination of a witness upon his document—that the document first be shown to the witness and that it be put in evidence by the cross-examiner as part of his case.
48. There is a difference of view as to whether the patty calling the witness may have the document admitted when it is not otherwise admissible.[86] There is also a difference of judicial view as to whether the whole of the document must be tendered if it is sought to tender the document to prove the inconsistency or whether it may be tendered only as to that part and related parts which bear on the inconsistency.[87]
49. The cross-examiner is not obliged to tender the document—at least if he does not place it in the hands of the witness.[88] Where he does place the document in the witness’ hand, there appears to be some uncertainty. There is authority that depositions placed in the hands of a witness for the purpose of cross-examination must be tendered by the cross-examiner—R v Jack.[89] In that case, a police officer was under cross-examination about evidence given in the committal proceedings. He asserted that the word ‘stab’ was not used in the deposition. Counsel for the accused called for the deposition and was in the process of placing it in the hand of the witness and asking him to look at it and say whether he adhered to what he had said. The judge ruled that he could not put it into the hand of the witness without tendering it. This ruling was the subject of a special case and was approved. The decision was doubted in Maddison v Goldrick.[90] There is also authority for a different approach by which the issue is treated as one for the judge’s discretion under the legislation and no distinction is drawn between depositions and other writings.[91] As to the court’s power to ‘make such use ... as it thinks fit’ of the document, it has been said to be unclear whether it may admit the document in evidence, whether it may do so of its own motion or only if tendered by a party and whether the rules of admissibility apply.[92]
50. Scope of The Rule. In Browne v Dunn[93] it was held that any matter upon which it is proposed to contradict the evidence-in-chief of a witness must normally be put to that witness in cross-examination so that he may have the opportunity to explain the matter.[94] It would seem, however, that the rule may have a wider scope. A wider formulation that has been advanced is that a party should put to each of his opponent’s witnesses in turn so much of his own case as concerns that particular witness or in which that witness had any share.[95] The precise scope of the rule is in some doubt.[96]
51. Consequences of Non-Compliance. There is some uncertainty, as to the extent to which the rule must be satisfied and the result of a failure to do so. It has been argued that counsel is not obliged to cross-examine in detail when he is faced with apparent improbabilities, inconsistencies and incredibilities in the evidence of his opponent’s witness[97] and that it is not intended to cut across the techniques and discretion of cross-examining counsel. It has also been stated that there are occasions where matters do not have to be put because everyone knows they are in issue:
Such a plaintiff knows that the defendant will contend that his injuries do not deserve the sum which he himself has placed on them. And in many cases the witness must know that the other side will contend that he is not telling the truth, and even some cases that he is deliberately not telling the truth. I cannot assent to the proposition that counsel cannot argue or the court find that a witness is deliberately giving false evidence unless the witness is asked some such question as, ‘I put it to you that your evidence is false’, or ‘I suggest that that is a deliberate lie’ or the like.[98]
52. Phipson, however, argues that if counsel does not ask questions the cross-examination on any particular aspect of the evidence he will generally be taken to accept that witness’ account.[99] There is English authority that the party will not be allowed to attack the evidence in any closing speech and will not be allowed to put forward explanations on a particular point where the party has failed to cross-examine relevant witnesses on that point. In R v Bircham[100] counsel for the defendant was not permitted in his closing speech to suggest that a co-defendant and a prosecution witness were the perpetrators. That allegation had not been put to either of them in cross-examination. More recently it has been held that the general rules that evidence unchallenged in cross-examination cannot be attacked in the closing speech and that it must be accepted by the trier of fact do not apply in case tried before lay justices.[101]
53. There is authority, however, that a failure to put matters to witnesses in cross-examination does not inevitably have the above consequences. Justice Newton in Bulstrode v Trimble[102] referred to a number of Canadian, African, Australian and English authorities which support the view that the failure to cross-examine on a particular matter may be a matter to be considered in deciding what weight or cogency to attach to the evidence. He pointed to authority to support the proposition that the court must weigh up the conflicting testimony as best it can and it is open to the court to accept the opposing evidence notwithstanding that the evidence-in-chief was not challenged by cross-examination.[103] Chief Justice Bray suggested that the rule should not be applied with rigour where it is possible for the party whose witnesses were not cross-examined to call those witnesses in rebuttal.[104]
54. Where, during the presentation of evidence, a party adduces evidence the substance of which was not put in cross-examination, it is open to the opposing party to object and, consistently with the above, the judge, in his discretion, could prevent the evidence being given. Research has revealed little authority on the point. Waight and Williams assert that it would seem that the cross-examiner is not precluded from calling evidence on the matter.[105] The reported cases generally discuss the impact of the rule on the inferences to be drawn or the case that may be put where there is a failure to comply with the rule and evidence was led. An exception is Schneidas v R (No 2)[106] where the Court of Criminal Appeal upheld the trial judge’s decision not to allow an unrepresented accused to call evidence which had not been put to a Crown witness. Another is Reid v Kerr[107] where Justice Wells expressed the view that the magistrate had a discretion
• to allow the prosecution to call rebuttal evidence, if it so applied or
• to proceed on the basis that the defence were not entitled to ‘challenge the prosecution evidence by relying on their own.[108]
With these statements may be compared that of Justice Newton that the role does not ‘preclude’ a party ‘as a matter of law from adducing ...’ evidence in contradiction of the witness.[109] It is clear that giving leave to call evidence in rebuttal is recognised as an appropriate solution to the problem where a party has led evidence which was not put to the opposing party’s witnesses.[110]
[1] JA Gobbo, D Byrne, JD Heydon, Cross on Evidence, Butterworths, 2nd Aust edn, Sydney, 1981, para 10.19.
[2] In R v Governor of Gloucester Prison, ex parte Miller [1979] 1 WLR 537, it was held that contemporaneity is a requirement of practice only and that if a non-contemporaneous document was used, it affected the weight of the evidence. No authority was cited on the matter.
[3] R v Langton [1877] UKLawRpKQB 103; (1876) 2 QBD 296; and see Law Reform Commission of NSW, Working Paper, The Course of the Trial, 1978, Sydney, para. 2.1, and the cases there cited.
[4] O’Sullivan v Waterman [1965] SASR 150, 157.
[5] R v Alexander [1975] VicRp 74; [1975] VR 741, 748-9 (FC).
[6] R v Van Beelen (1973) 6 SASR 534, 537 (Sangster J). See also Gibbs J in Driscoll v R [1977] HCA 43; (1977) 137 CLR 517; Re A-G’s Reference (No 3) (1979) 69 Cr App R 411, 414 (CA).
[7] R v Shea (1978) 18 SASR 591, 596. Also the approach taken in the only relevant legislation—Evidence Ordinance (Singapore) s 1600).
[8] Burrough v Martin [1809] EngR 253; (1809) 2 Camp 112, 170 ER 1098 and Gibbs J, Driscoll v R [1977] HCA 43; (1977) 137 CLR 517, 541.
[9] R v Van Beelen (1973) 6 SASR 534, 536 (Sangster J). See also R v Shea (1978) 18 SASR 591, 596.
[10] Burman v Woolf [1939] VicLawRp 42; [1939] VLR 402, 409 (Martin J)—the majority of the Victorian Full Court concurred in his judgment.
[11] Sangster J in R v Van Beelen (1973) 6 SASR 534, 538; Lord Pearce in Myers v DPP [1965] AC 1001, 1035.
[12] Burton v Plummer [1834] EngR 1083; (1834) 2 A & E 341; 111 ER 132.
[13] Horne v MacKenzie (1839) 6 CI & F 628; [1839] EngR 1007; 7 ER 834. In a more recent English authority a witness was allowed to examine a copy document made six weeks after the original memorandum which had been lost: R v Cheng (1976) 63 Cr App R 20.
[14] Jones v Stroud [1825] EngR 826; (1825) 2 C & P 196, 172 ER 89. This is the position under s 160(3) Evidence Ordinance (Singapore).
[15] R v Shea (1978) 18 SASR 591, 597.
[16] Some support is to be found in Prestage and Shearing v R [1976] TASStRp 3; [1976] Tas SR 16, 34-8, citing R v Baigo [1957] VicRp 39; [1957] VR 303 and R v Curtis [1957] VicRp 40; [1957] VR 306. See also discussion in PK Waight and CR Williams Cases and Materials on Evidence, Law Book Co, Sydney, 1980, 250. It may be argued, however, that the Full Court of the Supreme Court of Victoria in the two above-mentioned cases did not in fact decide this question.
[17] Hetherington v Brooks (1963) SASR 321, 325.
[18] Prestage v R [1976] TASStRp 3; [1976] Tas SR 16, 37; R v Baigo [1957] VicRp 39; [1957] VR 303 and R v Jones (unreported, 18 May 1979—NSWCCA). Compare, however, R v Curtis [1957] VicRp 40; [1957] VR 306, 308 where the court expressly declined to decide the point, although for the purpose of the decision it assumed that to allow a witness to read a document to the jury when it was being used to refresh his memory from it, is equivalent to the wrongful admission of the document in evidence.
[19] R v Simmonds (1967) 51 Cr App R 316, 330.
[20] Ex parte Dustings; re Jackson (1967) 87 WN (NSW) 98 and R v Pachonick [1973] 2 NSWLR 86.
[21] Brereton J in R v Skalis [1972] (NSWCCA) unreported—see Cross on Evidence, para 10.22; see also Practice Note, ‘Memory Refreshment of Witnesses from Notes’, (1983) 57 ALJ 363.
[22] O’Sullivan v Waterman [1965] SASR 150, 156 and Collaton v Correl [1926] SAStRp 12; [1926] SASR 87; Mather v Morgan [1971] TASStRp 17; [1971] Tas SR 192, 206 (FC); King v Bryant (2) (1956) St R Qd 570, 584, 594 (Stanley and Hanger JJ).
[23] R v Macecek [1960] Qd R 247, 249, 254, 265-6.
[24] R v Westell [1976] 2 All ER 812; Worley v Bentley [1976] 2 All ER 449.
[25] Cross on Evidence, para 10.18.
[28] [1975] VicRp 74; [1975] VR 741. But the cases cited in the latter case a 750 should be noted.
[29] [1978] 18 SASR 591, 597.
[30] [1926] SAStRp 12; [1926] SASR, 87, 93.
[31] [1971] TASStRp 17; [1971] Tas SR 192, 206 (FC).
[32] Topham v McGregor (1844) IC & K 320; [1844] EngR 325; 174 ER 829.
[33] Gillespie v Steer [1973] SASR 200, 203 (at least in civil cases) and Travers J, Hetherington v Brooks [1963] SASR 321, where His Honour stated that a witness could read out a document in such circumstances ‘if not indeed, to also put it in’ (325-6). Support also in R v Naidanovici [1961] NZPoliceLawRp 24; [1962] NZLR 334 (North and Cleary JJ); Driscoll v R [1977] HCA 43; (1977) 137 CLR 517, 523 (Barwick CJ).
[34] [1975] VicRp 74; [1975] VR 741, 751. It was not resolved in the High Court decision of Alexander v R [1981] HCA 17; (1981) 34 ALR 289, 290 and 319.
[35] See below, para 93-4.
[36] Cross on Evidence, para 10.16; JF Stephen, A Digest of the Law of Evidence, 12th edn, MacMillan, London, 1946 art 140; JH Buzzard, R May, MN Howard, Phipson on Evidence, 12th edn, Sweet and Maxwell, London, 1976, para 1566; (Phipson on Evidence); Evidence Ordinance (Singapore) s 142; Law Reform Commission of NSW, Working Paper, The Course of the Trial, 1978, Sydney, para 3.1.
[37] See Cross on Evidence, para 10.16 and Law Reform Commission of NSW, para 3.1.
[38] See references cited in n 1 and Moor v Moor [1954] 2 All ER 458, 459.
[39] Ex parte Bottomley [1909] UKLawRpKQB 56; [1909] 2 KB 14, 20-2, 23; Price v Manning [1889] UKLawRpCh 132; [1889] 42 Ch D 372; Mooney v James [1948] VicLawRp 57; [1949] VLR 22, 26-8; Gordon v Carroll (1977) 27 FLR 129, 135; R v Thynne [1977] VicRp 10; [1977] VR 98, 103; R v Lawless [1974] VicRp 49; [1974] VR 398, 415. Authority against the proposition—McLure v Mitchell (1974) 6 ALR 471, 483, a decision of Joske J in the Industrial Court.
[40] R v Watson [1817] EngR 133; (1817) 2 Stark 116, 128[1817] EngR 133; , 171 ER 591, 598 where the witness was asked if the prisoner in the dock was the person he had referred to. Phipson argues that the proper question is—‘Do you see the person referred to in court?’: Phipson on Evidence, para 1567, Law Reform Commission of NSW, para 3.4.
[41] See Law Reform Commission of NSW, para 3.4 and cases there cited.
[42] [1909] UKLawRpKQB 56; [1909] 2 KB 14, 20-2.
[43] (1947) ALR 616, Dixon J (as he then was). See below.
[44] Evidence Ordinance (Singapore) s 142, 143.
[45] Federal Court Rules Order 33 Rule 10, NSW Rules, Part 36, Rule 12A.
[46] Cross on Evidence, para 10.38 and 10.39.
[47] Cross on Evidence, para 10.39.
[48] See A Sowden, Research Paper No 1, Comparison of Evidence Legislation Applying in Federal Courts of the Territories, Sydney, Australian Law Reform Commission, 1981, para 9.15.
[49] Cartwright v W Richardson Co Limited [1955] 1 All ER 742 and Harvey v Smith-Wood [1963] 2 All ER 127. In the latter case Lawton J allowed the tender of a statement of a witness in such circumstances but emphasised that, in practice, this should be adopted only in the most exceptional circumstances. The legislation relating to tendering statements in documents in civil proceedings, originally enacted in England in 1938, was enacted and amended in the States and some Territories. See below.
[50] s 28(2).
[51] R v Neal [1947] ALR 616 and R v Thynne [1977] VicRp 10; [1977] VR 98 at 101-3. See also R v Thompson (1977) 64 Cr App R 96.
[53] R v Thynne [1977] VicRp 10; [1977] VR 98, 103; see also Houston & Stanhope v R (1984) 8 A Crim R 392.
[54] Evidence Ordinance 1971 (ACT) s 60(2).
[55] Section 60(2) of the Evidence Ordinance 1971 (ACT) was considered in the case of Vocisano v Vocisano (1974) 130 CLR 267, 271-2 (Rostek v Keegan (1967) 85 WN (Pt 1) (NSW) 555 overruled). The term ‘party’ was construed to mean the party on the record—and thus not the defendant’s insurer.
[56] Singapore Evidence Ordinance s 156(d) relates to the prosecutrix in rape trials.
[57] See AIR Manual, vol 10, 961.
[58] Cross on Evidence, para 10.37; Law Reform Commission of NSW, The Course of the Trial, para 6.1; see also R v Hayden and Slattery [1959] VicRp 18; [1959] VR 102.
[59] Price v Bevan (1974) 8 SASR 81, 96.
[60] [1955] VicLawRp 56; [1956] VLR 31, 34.
[61] For a detailed procedure see Price v Bevan, (1974) 8 SASR 81 and S Simpson, ‘The Characterisation of One’s Witnesses for the Purpose of Their Impeachment’ (1976) 50 ALJ 410, 414-5.
[62] Against rebuttal evidence—Andrews J in R v Cox [1972] Qd R 366, 374-5; for rebuttal evidence—Walters J in Price v Bevan (1974) 8 SASR 81, 97 (Walters J) and 92 (Bray CJ).
[63] Sowden, 54. Note, however, the ACT legislation above. It avoids the concept of the adverse witness but maintains an embargo on evidence of bad character (the English position)—s 60(1).
[64] Evidence Act 1898 (NSW).
[65] Evidence Act 1906 (WA) s 20-1; Evidence Act 1939 (NT) s 18: Evidence Act 1929 (SA) s 27.
[66] Evidence Act 1958 (Vic) s 34; Evidence Act 1977 (Qld) s 17; Evidence Act 1910 (Tas) s 97; s 98(2).
[67] Law Reform Commission of NSW, The Course of the Trial, para 6.1.
[68] R v Hunter [1955] VicLawRp 56; [1956] VLR 31, 34-5.
[69] See R Cross, Evidence, 5th English edn, Butterworths, London, 1979, 252, 222.
[70] [1955] VicLawRp 56; [1956] VLR 31 (FC).
[71] (1979) 20 SASR 543, 549.
[72] Driscoll v R [1977] HCA 43; [1977] 51 ALJR 731 and R v Pestano [1981] Crim L Rev 397: cf Lord Parker CJ in R v Golder [1960] 3 All ER 457.
[73] See Re Mundell (1883) 48 LT 776; Law Reform Commission of NSW, The Course of the Trial, para 7.6; Mooney v James [1948] VicLawRp 57; [1949] VLR 22, 28; Uniform Law Conference of Canada, Report of the Federal Provincial Task Force on the Uniform Rules of Evidence (1982) para 21.11, citing R v Bradbury (1973) 14 CCC (2d) 139 at 140, 23 CRNS 293, 294 (Kelly JA) and R v Rowbotham (No 5) (1977) 2 CR (3d) 293, 296 (Ont GSP); arguably implicit in Mechanical and General Inventions Co Ltd v Austin (1935) AC 359; Albrighton v Royal Prince Alfred Hospital, [1980] 2 NSWLR 542.
[74] Evidence Ordinance 1971 (ACT) s 59. Queensland legislation is identical—Evidence Act s 21. The equivalent legislation in other States and Territories also includes at the end of sub-section (2) the expression ‘notwithstanding that the question may be proper in itself’.
[75] Evidence Act: SA (s 222); NT (s 13).
[76] [1835] EngR 409; [1836] 7 C & P 408. See also McGure v Mitchell [1974] ALR 471, 483-4.
[77] [1948] VicLawRp 57; [1949] VLR 22, 27-8.
[78] cf R v Hardy (1794) 24 How St Tr 659, 775 (Butler J).
[79] See authorities cited above and see generally Law Reform Commission of NSW, para 3.5; Cross on Evidence para 10.50; though see Phipson on Evidence para 1594.
[80] Evidence Ordinance s 144(1) & (2).
[81] Evidence Ordinance 1971 (ACT) s 62.
[82] Evidence Act 1898 (NSW) s 55; Evidence Act 1910 (Tas) s 99; Evidence Act 1906-1979 (WA) s 22. In the NSW legislation, ‘justice’ is defined to mean a ‘justice of the peace’ (s 3).
[83] This expression echoes the terminology of the other section commonly found in the legislation which spells out the right to tender prior and written inconsistent statements, eg Evidence Act 1898 (NSW) s 54.
[84] Law Reform Commission of NSW, 83; Simos QC in Glass (ed) Seminars on Evidence, Law Book Co, Sydney, 1970, 182.
[86] Glass, 137—not admissible; contra Starke, ‘Cross-Examination Based on Documents’ (1945) 19 ALJ 262-3.
[87] For the former, R v Riles [1866] EngR 33; (1866) 4 F & F 964, 176 ER 868; North Australian Territory Co v Goldsborough Mort and Co [1893] UKLawRpCh 39; [1893] 2 Ch 381, 385—cited in Law Reform Commission of NSW, para 9.12. For the latter, Jordan CJ in Alchin v Commissioner for Railway’s [1935] NSWStRp 23; (1935) 35 SR (NSW) 498, 509; Law Reform Commission of NSW, para 9.12.
[88] Glass, 137; Walton v Deaton (1930) 31 SR 393; Sladden v Sargeant (1858) 1 FF 322[1858] EngR 150; , 175 ER 746; Law Reform Commission of NSW, 119.
[89] (1894) 15 NSWLR 196, 200.
[90] [1976] 1 NSWLR 651, 660.
[91] See Cross on Evidence, para 10.53; Walton v Deaton [1930] NSWStRp 83; (1930) 31 SR (NSW) 393; Wood v Desmond (1958) 78 WN (NSW) 65 and Alchin v Commissioner for Railways [1935] NSWStRp 23; (1935) 35 SR (NSW) 498, 508.
[92] Law Reform Commission of NSW, The Course of the Trial, para 9.8; Reynolds QC raised the questions without expressing a view in Glass (ed) Seminars on Evidence, 130. It is suggested, however, that the language is clear and that the only issue of uncertainty may be whether the rules of admissibility apply.
[93] (1893) 6 R 67.
[94] id, 70, 76; Law Reform Commission of NSW, The Course of the Trial, para 17.1, Cross on Evidence, para 10.50.
[95] WB Odgers, Pleading and Practice 7th edn, Stevens, London, 1912, 312; Reid v Kerr [1974] 9 SASR 367 at 373, per Wells J, quoting Phipson on Evidence, para 1593.
[96] For discussion see Bulstrode v Trimble [1970] VicRp 104; [1970] VR 840, 846 and Brown v R [1980] Tas SR 61. See also Hunt J in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1, 26: ‘Diametrically opposed views are held within the profession ...’. The situation in NSW in civil trials, however, differs from some other jurisdictions in that the plaintiff has the right to lead evidence in reply.
[97] id, 374.
[98] Bray CJ in Thomas v Van den Yessel [1976] 14 SASR 205, 207.
[99] Buzzard et al, Phipson on Evidence, para 1593, citing Flannagan v Fahe [1981] 2 Ir R 361, 388-9; Browne v Dann (1893) 6 R 67, 76-7; R v Hart (1932) 23 Cr App R 202.
[100] [1972] Crim L Rev 430. For authority supporting the rigorous approach, ie a proposition cannot be maintained if not put in cross-examination, see McCormack v FCT (1980) 10 ATR 722, 726; Reid v Kerr [1974] 9 SASR 367, 375 and McMinn v Daire (1981) 5 A Crim R 307, 313 (SASC).
[101] Buzzard et al, Phipson on Evidence para 1593; O’Connell v Adams [1973] Crim L Rev 113.
[102] [1970] VR 850.
[103] id, 847-9: see also Leydon v Thomlinson [1979] 22 SASR 306-7; Reid v Kerr, [1974] 9 SASR 367, 375; Precision Plastics v Demir [1975] HCA 27; (1975) 132 CLR, 362, 365.
[104] Karidis v General Motors-Holdens [1971] SASR 422, 425-6.
[105] Waight & Williams, 328.
[106] [1980] 4 A Crim R 101, 111.
[108] A further option raised was the judge calling the witnesses.
[109] Bulstrode v Trimble (1970) VR 940.
[110] See, for example, Bulstrode v Trimble [1970] VicRp 104; [1970] VR 840, 847; Reid v Kerr [1974] 9 SASR 367, 375; Karidis, General Motors Holden [1971]1 SASR 422, 425.
55. The Threshold Rule of Admissibility. A generally adopted[1] analysis of the relation between the legal principle of relevance[2] and the admission of evidence is that offered by Thayer.[3] Having stated that ‘relevant’ meant ‘logically probative’,[4] he wrote:
The two leading principles should be brought into conspicuous relief, (1) that nothing is to be received which is not logically probative of some matter requiring to be proved; and (2) that everything which is thus probative should come in, unless a clear ground of policy or law excludes it.[5]
Thus, Chief Justice Barwick stated in Wilson v R[6] that ‘the fundamental rule governing the admissibility of evidence is that it be relevant. In every instance the proffered evidence must ultimately be brought to that touchstone’. But the courts rarely discuss the concept of relevance. When they do, the language used is often ambiguous. As a result considerable uncertainty is generated as to the legal meaning of ‘relevance’ and the validity of Thayer’s formulation.
56. The Meaning of Relevance. Thayer stated in his Treatise:
The law furnishes no test of relevancy. For this it tacitly refers to logic and general experience.[7]
But attempts[8] have been made by the courts to elucidate the meaning of relevance, to define the nature of the connection required between tendered evidence and a ‘material proposition’ to render the evidence ‘relevant’.
57. Different approaches have been adopted. This results in uncertainty and erroneous notions:
• Part of the Transaction. Wills[9] considered that all constituent parts and details of the ‘transaction in issue’ are necessarily relevant to the issue, as are ‘subordinate incidents, together with such further facts as may be necessary to identify or explain them’. Exceptionally, as where credibility is in issue, evidence may be given of other facts and circumstances.
Justice Dixon (as he then was) stated in Martin v Osborne[10] that:
the circumstances which may be taken into account in this process of reasoning include all facts and matters which form constituent parts or ingredients of the transaction itself or explain or make intelligible the course of conduct pursued.
The Full High Court in Attwood v R[11] defined ‘relevant facts’ as:
facts and circumstances forming the parts and details of the transaction and the incidents or matters tending to explain, identify or lead up to the occurrences forming the subject of the issue.
• Definition in Terms of Probability. Justice Dixon in Martin v Osborne, after adopting the ‘Wills’ formulation, went on in his judgment to discuss relevance in terms of probability:
the class of acts and occurrences that may be considered includes circumstances whose relation to the fact in issue consists in the probability or increased probability, judged rationally upon common experience, that they would not be found unless the fact to be proved also existed.[12]
Further, in examples cited by Justice Dixon in the same case, the connection between the evidence and the facts in issue seemed to depend solely on a consideration of probabilities. And the other members of the High Court apart from Chief Justice Latham adopted a probability approach.[13] Similarly in Attwood, the High Court also went on to talk of relevance in terms of ‘tending to make an inference of guilt more probable.[14] The real issue in the existing law is whether any particular degree of probability is required to render evidence relevant. A number of variations can be identified:
(a) ‘Render Fact Probable’. Sir James Stephen, in his Digest of the Law of Evidence, wrote:
A fact is relevant to another fact when the existence of the one ... either alone or together with other facts proves or renders probable the past, present or future existence or non-existence of the other.’[15]
Authority for such a test is to be found in Martin v Osborne,[16] a case involving proof of passenger transport for reward by indirect evidence of regular carriage Justice Dixon, with whom Chief Justice Latham agreed, required that ‘the repetition of acts or occurrences’ should ‘make it probable that they are accompanied by some further fact’ (eg payment). While it is not entirely clear whether Justice Dixon was talking about relevance or an exclusionary rule for evidence of prior conduct, Justices Evatt and McTiernan clearly adopted an ‘application of the general principle of relevance’ in requiring a sufficient degree of probative force.[17] An alternative explanation for cases where a ‘render probable’ test has been applied is that they lay down a special test for evidence of prior conduct.
(b) Some Degree of Probative Value. The editors of Cross on Evidence write that:
the main general rule governing the entire subject is that all evidence which is sufficiently relevant to an issue before the court is admissible.[18]
Relevance is considered to be ‘a matter of degree’ so that a mere logical connection is not enough—the evidence must possess more than a minimum of probative value. Thus, the Victorian Full Court stated in R v Stephenson[19] that:
Although logic is the test of relevance, not all evidence which is logically relevant is legally admissible. The logical connection between a fact and the issue to be determined may be so slight that the fact is treated as too remote and evidence of it as inadmissible. In some cases, such evidence is described as being irrelevant, an expression which must be taken to indicate that its weight is so minimal that it does not serve to add or detract from the probability of the principal issue being established. Such evidence may be more correctly described as insufficiently relevant or too remotely relevant.[20]
Justice Thesiger in the English Court of Appeal had earlier stated in R v Harz[21] that:
this basic rule [of relevance] has to be applied to differing circumstances. The words ‘sufficiently’, ‘insufficiently’, ‘common course of events’ and ‘probable’ have to be used, and these are matters of degree and opinion.
Justice Wells J in R v Pfitzner[22] argued that the judge ‘must provisionally assess weight when ruling on evidence because he must ask himself whether the item of evidence under challenge is ‘worth considering’.[23] Similarly Justice Mason with whom Justice Aickin agreed, considered in Alexander v R[24] that evidence of ‘little value’ should be ‘rejected ... not perhaps on the ground that it is not evidence at all, but on the ground that its probative value is so slight as to make it valueless.’ Justice Evatt in Martin v Osborne argued that the evidence need not render a material proposition probable, but at least should make it ‘plausible’.[25]
• Balancing Probative Value and Policy Considerations. Although Cross on Evidence states that remoteness is one ground on which evidence may be held insufficiently relevant, because of its low probative value, he also argues that ‘there are decisions in which evidence has been held to be inadmissible on the score of insufficient relevancy when it would, by common consent, have been of considerable probative value ...’.[26] The courts, he continues, take into account certain policy considerations when they determine whether evidence is ‘sufficiently relevant’:
two facts which may affect the relevance of evidence for the purpose of a legal inquiry are the danger that it will give rise to a multiplicity of issues, and the danger that it might have been manufactured. ... Evidence which might even be highly relevant in a protracted academic investigation is treated as too remote from the issue in a forensic inquiry because the body which has to come to the conclusion is controlled by a time factor, not to mention considerations such as the danger of distracting the jury and the undesirability of pronouncing upon matters which are not being litigated.
There is strong academic authority[27] for the proposition that the courts, implicitly, treat evidence as relevant if its degree of probative value is not outweighed[28] by any ‘disadvantages’ relating to its admission. On this view, the standard of sufficient relevance will vary between some minimum probative value and actual likelihood, according to the weight of disadvantage. The more disadvantageous the evidence, the more probative it will have to be, to be considered sufficiently relevant.
Two cases are usually cited to support this argument: Hollingham v Head,[29] and Attorney-General v Hitchcock.[30] In fact neither case is strong authority for a variable standard of relevance. Justice Willes said in the former decision:
I am of opinion that the evidence was properly disallowed, as not being relevant to the issue. It is not easy in all cases to draw the line, and to define with accuracy where probability ceases and speculation begins, but we are bound to lay down the rule to the best of our ability. No doubt, the rule as to confining the evidence to that which is relevant and pertinent to the issue, is one of great importance, not only as regards the particular case, but also with reference to saving the time of the court, and preventing the minds of the jury from being drawn away from the real point that they have to decide.’
Justice Willes was echoing the views of Best that irrelevant evidence should be automatically excluded to avoid wasting the court’s time. He was not explicitly suggesting that the standard of relevance varied in accordance with factors like time wasting. In fact, he concluded, as already noted, that relevance was, at least in cases of prior conduct, determined on a fixed standard—does the evidence render the material proposition ‘more probable’ than not. But the time factor was recognised as an important consideration in determining the level of probative value required to render previous conduct evidence relevant. In Attorney-General v Hitchcock, Baron Rolfe stated that ‘the laws of evidence on this subject, as to what ought and what ought not to be received, must be considered as founded on a sort of comparative consideration of the time to be occupied in examinations of this nature, and the time which it is practical to bestow upon them.[31] But, he was not adverting to the concept of relevance, but to one of the foundations of the exclusionary rules themselves, in this case the rule preventing rebuttal on matters going solely to credit. Similarly in Agassiz v London Tramway Co,[32] evidence was excluded by Chief Baron Kelly because it was evidence of a party’s previous conduct and had dangers of prejudice, confusion of the jury and raising of collateral issues. In making these points however, the Chief Baron appeared to be supporting his conclusion that the subject matter of the evidence was not part of the res gestae.
The real issue is whether the courts consider such factors in making a relevance determination. The courts have held in civil cases that there is no discretion to exclude prejudicial evidence that is relevant.[33] It tends to follow by implication that a such a factor cannot play a part in a relevance determination. Reference, however was made to the avoidance of prejudice as one of the reasons for the requirement of relevance in Hollingham v Head.[34] The passage was cited in R v Stephenson.[35] But if the courts do not expressly state that they adopt a balancing approach to relevance, their practice in fact reflects such an approach. For example:
(a) ‘Sufficient Relevance’ Cases. It is arguable that a trial judge cannot legitimately exclude evidence simply because it is in his opinion of low probative value. By definition, it can affect the assessment of the case and if there is no reason to justify its exclusion, the primary judicial task of finding the facts should result in admission. It is only if ‘dangers’ exist that exclusion is justified.
(b) Previous Conduct Evidence. The justification for the exclusion of previous conduct evidence is not simply its perceived low probative value. Rather, disadvantages consonant with its admission including possible misestimation of value, confusion and time wasting, outweigh the positive value in its admission. But where that value is substantial then the disadvantages no longer justify exclusion. To the extent that previous conduct evidence is dealt with under the rubric of relevance, it reflects in reality a balancing approach to relevance.
(c) ‘Remoteness’ Cases. Evidence which is excluded on the basis that it is too remote in space or time from the issues of fact also fits within this analysis. If a person is seen speeding 10 seconds before an accident, it is reasonable to adopt the inference that he will continue at the same rate of speed if circumstances do not change. But if he is seen speeding an hour before an accident, this analysis becomes much less tenable. As remoteness in time and space increases so the probative value of the evidence decreases. But the evidence should not be excluded simply because it is of low probative value—rather, because the time required to prove the proposition and the risks involved outweigh any possible increment of probative force to be derived from the evidence. A fact-finder may conclude, consciously or sub-consciously, that a person who behaves improperly on one occasion should be punished, regardless of proof of misconduct on the occasion in issue. Unless the evidence is closely connected to the occasion in issue in terms of time and space, or some other connecting factor, its probative value will be outweighed by other considerations.[36]
(d) Evidence of Insurance. There are authorities that have stated that evidence of insurance is generally irrelevant on the issue of the negligence of the insured:[37]
It must be remembered ... that in the majority of cases and apart all together from any question of prejudice, the fact that a defendant is insured is an irrelevant fact and a rule of law ... excludes irrelevant matters from the tribunal of fact.[38]
Evidence of insurance is of extremely small probative value on the issue of negligence. Drivers, for example, are careful for many reasons—protection of themselves and others against injury, the fear of criminal proceedings. Most would not give their insurance a second thought as they drive, and those who do would know that accidents result in excess charges and higher premium rates for future policies. However,
few would be prepared to assert that no one ever behaves less carefully because he is insured ... The insurance literature has a name for this phenomenon: ‘moral hazard’.[39] ... It is a rare trial judge who can honestly dismiss evidence of insurance as totally without value.[40]
Most authorities justify exclusion of evidence of insurance on the basis of ‘a rule of practice’[41] which adverts to disadvantages consonant with the evidence. It is excluded because ‘it would fall within the evil the rule is designed to prevent ... prejudice the fair trial of the action and distract their (the jury’s) minds from the issues to a consideration of the ultimate liability’[42] with the result, for example, that:
a jury ... might find a verdict for the plaintiff which would otherwise have been found for the defendant or might award higher damages than would otherwise have been awarded.[43]
(e) Remedial Measures. Judgments considering the relevance of remedial action after an accident suggest that policy considerations may have some bearing on the decision. Thus in ruling that there was no ‘evidence of negligence’ to be found in the taking of remedial measures Baron Bramwell said:
People do not furnish evidence against themselves simply by adopting a new plan in order to prevent the recurrence of an accident. I think that a proposition to the contrary would be barbarous. It would be to hold that, because the world gets wiser as it gets older, therefore it was foolish before.[44]
In Davis v Langdon[45] it was said:
A person may have exercised all the care which the law required, and yet in the light of his new experience, after an unexpected accident has occurred, and as a measure of extreme caution, he may adopt additional safeguards. The more careful a person is, the more regard he has for the lives of others, the more likely he would be to do so, and it would seem unjust that he could not do so without being liable to have such acts construed as an admission of prior negligence.
It was held that the evidence of remedial measures was ‘manifestly inadmissible’ for the purpose of showing an admission of negligence or as evidence of negligence.[46] In the USA the exclusion of such evidence as evidence of an admission of fault has been justified on other policy grounds:
The rule rests on two grounds. (1) The conduct is not in fact an admission, since the conduct is equally consistent with injury by mere accident or through contributory negligence. Or, as Baron Bramwell put it, the rule rejects the notion that ‘because the world gets wiser as it gets older, therefore it was foolish before’... Under a liberal theory of relevancy this ground alone would not support exclusion as the inference is still a possible one. (2) The other, and more impressive, ground for exclusion rests on a social policy of encouraging people to take, or at least not discouraging them from taking, steps in furtherance of added safety.[47]
The potential prejudicial effect of such evidence and the wisdom of excluding it was acknowledged in State Electricity Commission of Victoria v Gay.[48]
The decision of the South Australian Supreme Court in Re Van Beelen[49] arguably provides an example of what is, in practice, a balancing approach. The Court stated the test in terms of evidence which tends ‘to prove a fact/or the facts in issue’. It then, however, quoted extensively from Wigmore’s analysis that the ‘Trial Rules’ exist ‘to determine whether a given piece of evidence is worth considering’. Thus, ‘evidential data of inferior value’ is held inadmissible because of ‘1. Limitation of time and place; 2. Risk of fraud by parties; 3. Lay personnel of the tribunal; 4. Emotional conditions of litigation’.[50]
• Affecting the Probabilities. A significant number of authorities, however, favour a wide approach to relevance. No specific degree of probative value is required. Rather, emphasis is placed on the common meaning of relevance—does the evidence ‘have a bearing’ on the issues?[51] In probability terms, does the evidence ‘affect the probabilities’? Or, could the evidence affect the jury’s determination of the probabilities?
The Victorian Full Court in R v Chee[52] quoted the American writer McCormick:
the most acceptable test of relevancy is the question, does the evidence offered render the desired inference more probable than it would be without the evidence.
The desired inference need not be rendered probable—it is enough if its probability, before consideration of the evidence, is increased (or, by implication, decreased) by the evidence. Later,[53] the Full Court cited the House of Lords in DPP v Kilbourne[54] for the proposition:
Putting aside exclusionary rules, the test of admissibility is whether it is probative: ie whether it increases or diminishes the probability of the existence of a fact in issue.[55]
Support is also to be found in Driscoll v R.[56] Justice Gibbs (as he then was) emphasised that a jury ‘should have before it evidence of all facts which tend to prove or disprove [a material proposition]’. Thus evidence that police had prevented an accused from seeing his solicitor was relevant to the question whether the accused in fact made admissions as alleged by the police even though it could not, by itself, make such a conclusion probable. ‘It is not of course conclusive’.[57]
58. Subjective or Objective Test. Regardless of which of the above formulations of the relevance test is adopted, a clear dichotomy exists between those cases which require that the judge be satisfied that the evidence actually affect the probabilities to be relevant, and those which merely require that it be ‘reasonably capable’ of meeting the standard adopted:
• Is the Evidence ‘Relevant’? Some courts express the test in terms of the judge’s opinion. Justice Wells stated in R v Pfitzner[58] that a trial judge ‘must provisionally assess weight when ruling on relevance because he must ask himself whether the item of evidence under challenge is ‘worth considering’.’ Most of the authorities simply require that the judge decides whether the test has been satisfied. Does the evidence ‘make it probable’ that a material fact occurred,[59] is it ‘sufficiently relevant’,[60] does it ‘increase or diminish the probability of the existence of a fact in issue’?[61]
• Could the Evidence be ‘Relevant’? A number of authorities however adopt a test of whether the evidence is reasonably capable of meeting the standard. The Victorian Full Court in R v Thomas[62] stated that the:
judge’s task is merely to say whether the evidence if believed by the jury is reasonably capable of supporting the inference (sought to be drawn) or establishing the fact (sought to be proved).
The South Australian Supreme Court required in Re Van Beelen that the trial judge must ask himself: ‘In all the circumstances, is this item fairly capable of affecting the final proof of the fact (or the facts) in issue?’ He decides ‘whether the item of evidence under examination is capable, after being subjected to a process of ratiocination, of rendering a fact (or the facts) in issue more or less probable.[63] Similarly the Queensland Court of Criminal Appeal in R v Crawford,[64] a case involving evidence of bad character, required that such evidence be ‘capable of tending to persuade a reasonable jury of the accused’s guilt’.
59. To What Must the Evidence Relate? Australian courts often use the term ‘relevance’ to embrace two distinct concepts—logical connection and materiality. Evidence is relevant to a proposition if it ‘tends to prove’ it. But the evidence tending to prove the proposition is only relevant if the proposition is connected with an issue before the court or, as Thayer puts it, ‘some matter requiring to be proved’. Two approaches have been taken to the scope of the term ‘some matter requiring to be proved’.
• Direct Connection to Ultimate Issues. Some authorities limit ‘relevant’ evidence to direct connection with the ultimate issues in a trial, which are defined by substantive law, pleadings and rules of procedure. Thus evidence relating to questions of the admissibility of other evidence is not ‘relevant’.[65] Commentators on the law have suggested other situations in which admitted evidence is, in this sense, strictly irrelevant: evidence relating to a witness’ competence to give evidence, to a witness’ credibility, to the detail of circumstances surrounding relevant facts.[66] It has also been argued that
whenever the law declares that one fact is capable of affording proof of another, whether it is logically so capable or not, facts are admitted which need not be relevant.[67]
• Any Proper Question (Indirect Connection to Ultimate Issues). However, the weight of authority favours the view that evidence may be material if it is properly of consequence to the litigation in question even when it does not bear directly on the ultimate legal issues. Thus ‘when the existence of a fact tends to prove the existence of another fact relevant to the issue the existence of the first fact is also a relevant fact, and may be proved by appropriate evidence.’[68] Relevance was used in this latter sense when the High Court considered in Burns v R[69] whether ‘evidence that showed a confession was true was relevant to the question whether the confession was voluntarily made.’ Cross rejected Phipson’s assertion, that numerous facts are legally admissible although they have no direct logical bearing on the issues the court has to decide, on the basis that relevance extends ‘to such subordinate facts as those relating to the credibility and admissibility of evidence ...’.[70] Thus evidence admitted in order to evaluate the credibility of witnesses may not tend to directly prove a main fact in issue but will assist the court in evaluating the probative value of other evidence which is itself relevant to a material issue. Similarly, surrounding detail puts a narrated transaction in context, assisting evaluation of the truth of the narration and thus is ‘indirectly’ relevant to the issues. Information which aids in the understanding of other relevant evidence is also relevant.
60. Christmas and Cocos (Keeling) Islands. The Evidence Ordinance (Singapore), derived from the Indian Evidence Act which was drafted by Sir James Stephen and applicable in above these territories contains the following unique provisions:[71]
5. Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.6. Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction are relevant, whether they occurred at the same time and place or at different times and places.
7. Facts which are the occasion, cause or effect, immediate or otherwise, of relevant facts or facts in issue, or which constitute the state of things under which they happened or which afforded an opportunity for their occurrence or transaction, are relevant.
8.(1) Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.
(2) The conduct of any patty or of any agent to any party to any suit or proceeding in reference to such suit or proceeding or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.
9. Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity of any thing or person whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact happened or which show the relation of parties by whom any such fact was transacted, are relevant in so far as they are necessary for that purpose.
11. Facts not otherwise relevant are relevant—
(1) if they are inconsistent with any fact in issue or relevant fact;
(2) if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable.
12. In suits in which damages are claimed any fact which will enable the court to determine the amount of damages which ought to be awarded is relevant.
13. Where the question is as to the existence of any right or custom the following facts are relevant:-
(a) any transaction by which the right or custom in question was created, claimed, modified, recognized, asserted or denied or which was inconsistent with its existence;
(b) particular instances in which the right or custom was claimed, recognized or exercised or in which its exercise was disputed, asserted or departed from.
14. Facts showing the existence of any state of mind, such as intention, knowledge, good faith, negligence, rashness, ill-will or good-will towards any particular person, or showing the existence of any state of body or bodily feeling, are relevant when the existence of any such state of mind or body or bodily feeling is in issue or relevant.
15. Where there is a question whether an act was accidental or intentional or done with a particular knowledge or intention, the fact that such act formed part of a series of similar occurrences, in each of which the person doing the act was concerned, is relevant.
16. When there is a question whether a particular act was done, the existence of any course of business, according to which it naturally would have been done, is a relevant fact.
The legislation deals with topics such as opinion evidence and hearsay evidence. It does so by describing such evidence as ‘deemed to be irrelevant’.
[1] See JA Gobbo, D Byrne & JD Heydon, Cross on Evidence 2nd Aust edn, Butterworths, Sydney, 1979, para 1.32; MI Aronson, NS Reaburn & MS Weinberg, Litigation: Evidence and Procedure, 3rd edn, Butterworths, Sydney, 1982, para 19.01.
[2] This term is generally preferred to ‘relevancy’, although the US Federal Rules and older Australian authorities adopt the latter.
[3] JB Thayer, A Preliminary Treatise on the Law of Evidence at Common Law, Little Brown & Co, Boston, 1898 (Reprinted 1969 by Rothman Reprints, New Jersey).
[4] id, 265.
[5] id, 530.
[6] [1970] HCA 17; (1970) 123 CLR 334, 337.
[7] Thayer, 265.
[8] JD Heydon, Cases and Materials on Evidence, Butterworths, London, 1975, 6, argued that the attempt should not be made.
[9] W Wills, The Law of Evidence, 3rd edn, Stevens & Sons, London, 1938, 3-5.
[10] [1936] HCA 23; (1936) 55 CLR 367, 375 (Latham CJ concurring).
[11] [1960] HCA 15; (1960) 102 CLR 353, 360. See also Wilson v R [1970] HCA 17; (1970) 44 ALJR 221, 222 (Barwick CJ); R v Bond [1906] UKLawRpKQB 91; [1906] 2 KB 389, 400 (Kennedy J).
[12] [1936] HCA 23; (1936) 55 CLR 367, 375.
[13] id, 382, 385 (Evatt J); 404 (McTiernan J).
[14] [1960] HCA 15; (1960) 102 CLR 353, 360. Various Australian courts have atone time or another adopted such an approach: R v Donnelly [1957] TASStRp 4; [1957] Tas SR 28; Kriss v City of South Perth [1966] WAR 210; Re Van Beelen (1974) 9 SASR 163, 194 (FC); Duff v R (1979) 39 FLR 315, 350 (Fed Ct); R v Chee [1980] VicRp 32; [1980] VR 303, 306, 308 (FC); Knight v Jones: ex parte Jones [1981] Qd R 98 (FC).
[15] JF Stephen, A Digest of the Law of Evidence, 8th edn, Macmillan, London, 1907, art 1; Cross on Evidence, para 1.33 found it ‘difficult to improve’ upon this definition of relevance.
[16] [1936] HCA 23; (1936) 55 CLR 367, 376. Also Hollingham v Head [1858] EngR 535; (1858) 4 CBNS 388; 140 ER 1135, 1136-7 (evidence of terms of previous contracts) and Manenti v Melbourne and Metropolitan Tramways Board [1953] VicLawRp 78; [1954] VLR 115, 117-8 (evidence of plaintiff jumping on to trams on previous occasions) where the test was couched in terms of the evidence rendering the fact more probable.
[17] [1936] HCA 23; (1936) 55 CLR 367, 384-5 (Evatt J), 404 (McTiernan J).
[18] Cross on Evidence, para 1.32; Lord Hailsham (ed) Halsbury’s Laws of England, 4th edn, Butterworths, London, 1976, vol 17, para 5: ‘The prime requirement of anything sought to be admitted in evidence is that it is of sufficient relevance.
[19] [1976] VicRp 34; [1976] VR 376.
[20] id, 380-1. See also R v Gay [1976] VicRp 59; [1976] VR 577, 587 (FC); and Wilson v R [1970] HCA 17; (1970) 44 ALJR 221, 222 where Barwick CJ used the term ‘remoteness’ in a similar but more precise way, as related to the ‘Wills’ concept of relevance—‘remoteness in point of time of the [evidentiary facts] and the time of the act charged ...’
[21] [1967] 1 AC 760, 785.
[22] (1976) 15 SASR 171, 196.
[23] citing Re Van Beelen (1974) 9 SASR 163, 194-7.
[24] [1981] HCA 17; (1981) 34 ALR 289, 317-8.
[25] [1936] HCA 23; (1936) 55 CLR 367, 391; also 404 (McTiernan J).
[26] Cross on Evidence, para 1.41.
[27] JH Wigmore, A Treatise on the Anglo-American System of Evidence (Wigmore on Evidence) 3rd edn, Little Brown & Co, Boston, 1940, vol 1, para 28, 32: ‘In practice it will be found that the Courts vary between these two [extremes] according to practical possibilities of producing evidence and according to the dangers of its misuse. Sometimes they require in effect that the alleged conclusion (to which the evidentiary fact is directed) must be a more probable one than the others; sometimes they merely require that it must be a probable or a possible one irrespective of the greater probability of others’. See also LH Hoffmann, ‘Similar Facts After Boardman’ (1975) 91 LQR 193, 200-1, 204-6. Adopted in New South Wales Law Reform Commission, Working Paper on Evidence of Disposition Govt Printer, Sydney, (1978) 61: ‘Relevance is a question of degree and it is this feature which gives rise to problems of relevance in a legal context. Lawyers are never concerned with the question of whether one fact is relevant to prove another in an absolute sense; what matters to them is whether it is sufficiently relevant to justify its being heard by the court ... It is a variable standard, the probative value of the evidence being balanced against the disadvantages of receiving it such as taking up a lot of time or causing confusion ... To say that evidence is relevant must always mean that it has attained the variable standard of cogency sufficient, in the absence of any special exclusionary rule, to justify its admissibility’.
[28] It is unclear whether there needs to be substantial imbalance.
[29] [1858] EngR 535; (1858) 4 CBNS 388; 140 ER 1135.
[30] [1847] EngR 616; (1847) 1 Ex 91; 154 ER 38.
[31] id, 105; 44.
[32] (1872) 27 LT 492; (1872-3) 21 WR 199; also cited by Cross on Evidence, para 1.42 as an example of ‘insufficient relevance’ where multiple issues are raised.
[33] Manenti v Melbourne and Metropolitan Tramways Board [1953] VicLawRp 78; [1954] VLR 115, 118; David Syme & Co Ltd v Mather [1977] VicRp 58; [1977] VR 516, 531 (FC); R v Ames [1964-5] NSWR 1489, 1492 (CCA); Knight v Jones: ex parte Jones [1981] Qd R 98, 108.
[34] [1858] EngR 535; (1858) 4 CBNS 388, 391; [1858] EngR 535; 140 ER 1135, 1136.
[35] [1976] VicRp 34; [1976] VR 376, 381.
[36] R v Lewis [1913] ArgusLawRp 49; [1913] VLR 227; R v Buchanan [1966] VicRp 3; [1966] VR 9; R v Horvath [1972] VicRp 60; [1972] VR 533, 538; Wirth v Tuckey [1949] QWN 42.
[37] Lock v Keogh (1931) 48 WN (NSW) 250; Cucinotta v Nominal Defendant (1961) 61 SR (NSW) 23.
[38] King v Wilkinson (1957) 57 SR (NSW) 444, 448. In that case is was held to be relevant because it threw light on the credibility of the evidence. See Wheeler v Longman [1952] VicLawRp 57; [1953] VLR 14; Vocisano v Vocisano (1973) 22 FLR 113, 115 (ACT SC).
[39] KJ Arrow, ‘Uncertainty and the Welfare Economics of Medical Care’ (1963) 53 Amer Econ Rev, 941, 961-2 (1963); MV Pauly, ‘The Economics of Moral Hazard: Comment’ (1968) 58 Amer Econ Rev 531, 535.
[40] AH Travers, ‘An Essay on the Determination of Relevancy Under the Federal Rules of Evidence’ (1977) Ariz St LJ 327, 352.
[41] Fitzpatrick v Walter E Cooper Pty Ltd [1935] HCA 82; (1935) 54 CLR 200, 210 (Latham CJ); Gibb v Simpson [1942] VicLawRp 23; [1942] VLR 171; Cucinotta v Nominal Defendant (1961) 61 SR (NSW) 23, 34 (Evatt CJ).
[42] Goldstone v Harrison’s Investments Pty Ltd [1938] VicLawRp 24; [1938] VLR 342, 343 (Lowe J); followed in Wheeler v Longman [1952] VicLawRp 57; [1953] VLR 14.
[43] King v Wilkinson (1957) 57 SR (NSW) 444, 448.
[44] Hart v Lancashire and Yorkshire Railway Co (1869) 21 LT 261, 263.
[45] [1911] NSWStRp 22; (1911) 11 SR (NSW) 149, 162 citing Columbia and Puget Sound Railway Co v Hawthorne [1892] USSC 103; 144 US 202.
[46] ibid.
[47] Advisory Committee Note Rule 407 (Federal Rules), JB Weinstein & MA Berger, Weinstein’s Evidence, Matthew Bender. New York, 1982, vol 2, 407-2.
[48] [1950] VicLawRp 58; [1951] VLR 104, 116.
[49] (1974) 9 SASR 163 (Walters, Wells and Jacobs JJ).
[50] id, 193-5.
[51] Wilson v R [1970] HCA 17; (1970) 123 CLR 334, 344 (Menzies J).
[52] [1980] VicRp 32; [1980] VR 303, 306. But note that, at 308, the Full Court also made approving reference to R v Stephenson [1976] VicRp 34; [1976] VR 376, a decision adopting the remoteness approach to relevance. It may be that this was intended to be limited to a discussion of previous conduct evidence.
[53] id, 308.
[54] [1973] AC 729, 757.
[55] As Lord Simon said in Kilbourne: ‘Evidence is relevant if it is logically probative or disprobative of some matter which requires proof. ... It is sufficient to say, even at the risk of etymological tautology, that relevant (ie logically probative or disprobative) evidence is evidence which makes the matter which requires proof more or less probable’: [1973] AC 729, 756. See also Mister Figgins Pty Ltd v Centrepoint Freeholds Pty Ltd [1981] FCA 15; (1981) 36 ALR 23, 29-30 (Fed Ct); R v Gay [1976] VicRp 59; [1976] VR 577, 587 (FC); R v Houston and Stanhope (1982) 8 A Crim R 392, 394 (Viet CCA).
[56] [1977] HCA 43; (1977) 137 CLR 517, 539.
[57] Mason, Jacobs and Murphy JJ agreeing. Barwick CJ (522) dissented on the basis that such evidence ‘either alone or in association with other relevant facts’, did not afford ‘a basis for a conclusion one way or the other as to the making of the confessional statement’. In R v Donnelly [1957] TASStRp 4; [1957] Tas SR 28, 29, 34, Burbury CJ said that the ‘basic principle of relevancy’ required that evidence ‘be such that a jury could properly infer that its existence makes the existence of the transaction in issue more probable ... [ie] has some evidentiary value ...’.
[58] (1976) 15 SASR 171, 196.
[59] Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367, 376 (Dixon J).
[60] Cross on Evidence, para 1.32.
[61] R v Chee [1980] VicRp 32; [1980] VR 303, 308.
[62] [1970] VicRp 87; [1970] VR 674, 679. See also Manenti v Melbourne and Metropolitan Tramways Board [1953] VicLawRp 78; [1954] VLR 115, 117 (Sholl J).
[63] (1974) 9 SASR 163, 194.
[64] [1981] Qd R 85, 86.
[65] R v Kilbourne [1973] AC 729, 756. Lord Simon stated:
Exceptionally evidence which is irrelevant to a fact which is in issue is admitted to lay the foundation for other relevant, evidence (eg evidence of an unsuccessful search for a missing relevant document in order to lay the foundation for secondary evidence of the document).
[66] DW Elliott (ed) Phipson’s Manual of the Law of Evidence, 10th edn, Sweet & Maxwell, London, 1972. 28; R Eggleston, Evidence. Proof and Probability Weidenfeld & Nicolson, London, 1978, 60-3. See also R v Gun: ex parte Stephenson (1977) 17 SASR 165, 168, 179, 184.
[67] Eggleston, 63.
[68] Barnes & Co Ltd v Sharpe [1910] HCA 26; (1910) 11 CLR 462, 472 (Griffith CJ).
[69] (1975) 132 CLR 258, 263. Halsbury’s Laws of England, para 5, fn 1 emphasises that ‘a fact may be relevant to an issue, or to the weight to be afforded to evidence, or to the admissibility of other evidence’.
[70] Cross on Evidence, para 1.46.
[71] These provisions were accompanied by ‘explanations’ and ‘illustrations’. The ordinance contains the following definition: One fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provision of this Ordinance relating to the relevancy of facts; ‘fact in issue’ means and includes any fact from which either by itself or in connection with other facts the existence, non-existence, nature or extent of any right, liability or disability asserted or denied in any suit or proceeding necessary follows.
61. Introduction. In this chapter the law controlling the proof of the contents of documents is considered. Document is used in the sense of:
• books, plans, paper or parchments containing writing, printing or drawings.
• modern documents such as recordings and other modern means of recording and reproducing information such as film (including microfilm), and computer output on microfilm (COM), discs, and tape.[1]
Where it is necessary to distinguish the two sorts of documents, the former will be referred to as ‘writings’.
62. The Law. At common law, a party seeking to prove the contents of a writing is required to tender the original of the writing.[2] This rule is commonly described as the remaining vestige of the ‘best evidence rule.[3] Photographs do not appear to have been regarded as coming within the rule. Thus it is enough to tender a print from a negative and to lead evidence as to the authenticity and accuracy of the print.[4]
63. There are several areas of uncertainty about the operation of the rule:
• Original. It is not always easy to decide what is the original document admissible as primary evidence. Duplicate originals executed by all parties are regarded as primary evidence. Counterparts executed by only one patty are primary evidence as against the executing patty only.[5] It has been held that a carbon copy of a breath analysis test certificate produced by the same hand and at the same time as the original is admissible as primary evidence.[6]
• Tape Recordings and Transcript. There is a conflict of authority about the application of the rule to tape recordings and transcripts of their contents:
(a) The Rule Does Not Apply. In Victoria, Queensland and Western Australia, there is authority that a party may tender the tape recording and the transcript for the purpose of proving the contents of a conversation recorded on the tape recording. In R v Gaudion,[7] Justice Brooking held that the original recording is not a ‘document’ but a physical object on which information is recorded by means of ‘pattern impressions’. To ascertain what are the ‘pattern impressions’, it must be played using a loudspeaker or earphones. He argued that the production of a transcript was only another means of proving what was on the tape. He also concluded that the transcript is admissible whether or not the original tape or a re-recording is put in evidence.[8] R v Gaudion[9] was approved by the Court of Criminal Appeal in Queensland in the case of R v Beames.[10] A similar categorisation was used. The court also stated that:
the sounds which are ‘locked up’ in the physical object may be proved either by playing the[11]
The issue was also discussed in Walsh v Wilcox.[12] A transcript of recorded words was regarded as merely a means of conveying the conversation recorded to persons who want to know what words were spoken. The transcript was described as:
an extension of the function performed by the machine on which the recording is played.[13]
It is, of course, necessary to prove the correctness of the transcript.[14] This categorisation of tape recordings as not being documents is arguably inconsistent with the English and Australian authorities that a tape recording is a ‘document’ for the purposes of discovery.[15]
(b) The Rule Does Apply. There is recent authority to the contrary of the above Victorian, Queensland and Western Australian authorities. The New South Wales Court of Appeal in Conwell v Tapfield[16] held that a party must produce ‘the best evidence’ and accordingly must tender the tape recording and play it to the court. The Court of Appeal, however, acknowledged the convenience of relaxing the strict rule and enabling a transcript to be tendered. It expressed the view that in non-jury cases it could be expected that parties would agree to the strict rules being relaxed.
In the Tasmanian case R v Migliorini,[17] it was held by the trial judge that transcripts were not prima facie admissible but could be admitted in the trial judges discretion. On Appeal, the decision was upheld on the basis that the transcript was admitted as an aid to understanding the tape and not as evidence of its contents. Justice Nettlefold however, held that both the above approaches are incorrect. Justice Neasey disagreed with the decision in Conwell v Tapfield but declined to express a view on the correctness of the first approach. In England there is authority that a tape recording is a document and that the original recording must be produced.[18] A transcript or translation of a tape recording, however, was admitted in R v Magsud Ali[19] together with the original tape recording.
• Other Documents. Research has not revealed authority on the categorisation of tapes and discs used to store information in computer systems.
64. Exceptions to the Rule. A party can tender secondary evidence of a relevant writing on proof that it has been lost or destroyed or that the party has made reasonable efforts to procure the original and had been unsuccessful.[20] There are two potential qualifications:
• There is authority in the United States that the party seeking to tender secondary evidence of a writing is required, at common law, to negative fraud where it has been responsible for destroying the original. There is Canadian authority to the same effect.[21] There does not appear to be any English or Australian authority on the point.[22] It should be possible, however, to rebut any such presumption that may arise where a writing has been destroyed as part of a standard procedure of the owner.[23]
There is conflicting authority as to whether a copy of a copy is admissible. The better view, however, is that there is no limit to the degrees of secondary evidence.[24]
‘Public documents’ constitute a third exception: secondary evidence can be given of these writings. What constitutes a ‘public document’ is not clear. It must have been made pursuant to a duty to record the information but is not clear whether the person making the record must enquire into the facts and satisfy himself as to their truth.[25]
65. The ‘Reproductions’ Legislation. Legislation dealing with the admissibility of reproductions such as photocopies and microfilm was enacted in the 1960’s and 1970’s in New South Wales, Queensland, Victoria, Tasmania and Western Australia.[26] It was not enacted elsewhere. Differences both of substance and detail exist in the legislation despite the fact that it is the result of an attempt at uniform legislation. The legislation of Victoria and Western Australia is virtually identical.[27] Legislation in those two States differs from that of New South Wales, Queensland and Tasmania. The latter, while similar to one another also differ in some significant areas:
• The Definitions. The legislation attempts to define terms such as ‘machine copy’ and ‘negative’. The definitions vary. As to ‘machine copy’, for example, there is far more technical language in the New South Wales and Queensland definition than appears in the Victorian definition. The Tasmanian definition adds the phrase ‘a copy of a document ... made by the electrostatic process know as xerography or any similar process’. The term ‘negative’ is used in the Victorian and Western Australian legislation. The New South Wales, Queensland and Tasmanian legislation use the term ‘transparency’. The definitions of both terms, however, use the expression ‘transparent’ and ‘negative’ but the definition in the New South Wales, Queensland and Tasmanian legislation is more technical and detailed. What is perhaps most important is that the definitions of ‘machine’ copy excludes copies made by the use of transparent film and the expressions ‘negative’ and ‘transparency’ are defined by using the expression ‘photograph’. This, for example, excludes computer output on microfilm, produced using laser techniques and the new technology of optical discs which also uses laser techniques.[28]
• Official Documents. A reproduction of a document in the custody of government officers may be tendered if it bears a certificate that it is a reproduction of that document. While the Victorian and Western Australian legislation states which State officers may certify as to the reproduction of an official document, the New South Wales provisions requires the certification to be given by an approved person to be notified in the Gazette. In Queensland and Tasmania, there are general definitions in the legislation of the expression ‘an approved person’ limiting the term to State public officers but also enabling the gazettal of approved persons. The New South Wales, Queensland and Tasmanian legislation also requires that the approved person must certify that he had custody or control of the document at the time the transparency or a machine copy was made.
• Business Documents. A reproduction of a document made or used in the course of a business can be tendered upon proof that the reproduction was made in good faith and that either the document has been destroyed or lost or that it is not reasonably practicable to produce a document. Provision is made for proof by affidavit. Where proof is to be given by affidavit, however, information to be supplied includes information about the ‘legibility of and the extent of any damage’ to the document at the time it was copied. The affidavit must also describe the machine or process by which the machine copy or negative was made. It must also state that the processing was properly carried out in the ordinary course of business by the use of apparatus and material in good working order and condition. Under Queensland, New South Wales and Tasmanian law the affidavits relating to the copying must state the additional facts that the machine copy or photograph was made in good faith and ‘in the ordinary course of business’. The Queensland and New South Wales legislation requires that the affidavit also state that the processing was carried out with the object of reproducing the document. As to the affidavit about the loss or destruction of the original documents, the Queensland, New South Wales and Tasmanian legislation also provide that an affidavit sworn under the legislation on this issue state:
― that after due search and enquiry the document cannot be found;
― that, for reasons to be specified, it is not reasonably practicable to produce a document or secure its production.
• Approved Machines. With the exception of the Tasmanian legislation, provision is made for machines to be approved if the Attorney-General is satisfied that the machine automatically photographs documents passing through it in normal operating conditions at a speed which will prevent interference by the operator in the course of copying a document. The admissibility of reproductions made by such machines does not depend upon the document copied still being in existence. The Victorian and Western Australian legislation states the matters to be considered by the Minister in deciding whether a machine should be approved or not. The New South Wales and Queensland legislation does not. The legislation in those two States gives the Minister an unfettered discretion as to the conditions that he may impose upon the grant of approval. It is understood that no machines have been approved in Western Australia. In Victoria approval has been limited to rotary machines (which generally film the document as it is moving through the machine). In Queensland, planetary machines (which generally film the document while it is stationary) have been approved. In New South Wales both types have been approved.
• Affidavit of Maker of Transparency from Approved Machine. Evidence is required that the ‘negative’ or ‘transparency’ was made in good faith by means of an approved machine. Provision is made for proof of the making of the negative in good faith by means of an affidavit which requires a considerable amount of detail including information:
― about the deponent’s functions or duties in relation to copying documents;
― about the person or body who has custody or control of the document that was produced for photographing;
― about the condition of the document—legibility, damage;
― identifying the make, model or type of machine used; and
― that the photographing was properly carried out in the ordinary course of business by the use of apparatus and material in good working order and condition.
• New South Wales and Queensland legislation requires that the affidavit also state:
― the date on which approval of the machine was gazetted;
― that the photographing was carried out in accordance with conditions attached to the approval of the machine; and
― that the document was photographed in good faith.
The Tasmanian legislation does not contain an ‘approved machine’ provision. Instead its general affidavit provision relating to business documents applies expressly to transparencies. It also provides for proof by a certificate which purports to have been made by a person at the time at which he photographed a document:
― stating his name, address and occupation;
― identifying or describing a document;
― stating the day on which the document was photographed; and
― bearing his signature.
• Other Affidavits. Provision is also made for the use of affidavits to prove:
― delivery to and receipt from a photocopier of documents and reproductions;
― that the print reproduces the whole of the image on the negative.
There is also special provision for an appropriate form of affidavit to use where the documents are copied and numbered in series and recorded on a continuous length of film. In certain circumstances, a certified copy of an affidavit may be used in lieu of an original affidavit. The Tasmanian legislation does not require that a copy affidavit or certificate be certified before they are admissible in evidence.
• Other Conditions of Admissibility. Generally, the legislation also requires that, before a reproduction may be tendered, the judge must be satisfied that:
― the negative is in existence; and
― the document reproduced was in existence for a period of not less than 12 months after the document was made or that it has been delivered or sent by the party tendering the reproduction to the other party. There is no requirement in the Tasmanian legislation, however, that the original document should have been in existence for a period of 12 months after it was made. In Western Australia, the required period is two years. The two year requirement was requested by the Assistant Commissioner for Stamps on the ground that actions under the Stamps Act may be brought within two years of an offence.[29] There are exceptions to the above requirements. They do not apply to official documents. The second of the two requirements does not apply to reproductions made from negatives made by approved machines in the custody or control of government officers, banks, and life insurance companies.
• Ancillary Provisions. There are several ancillary provisions:
― a reproduction may be received in evidence though it does not reproduce the colour or ton. of the original document;
― there is no need for a notice to produce to be served before reproduction is received in evidence;
― there is no need to compare the reproduction with the original document before tendering it;
― the presumptions relating to ancient documents are extended to reproductions. The provisions in Western Australia and Tasmania relate to document 30 years old (not as elsewhere, 20 years old). This reflects the fact that in Western Australia and Tasmania the common law period of 30 years still applies;[30]
― reproductions admissible under ‘corresponding’ provisions in the laws of another State or Territory shall be admissible in other States and Territories;
― judicial notice may be taken of the image of a seal or signature where it could have been taken of the original;
― reproductions may be kept in substitution for documents required by law to be preserved;
― inferences may be drawn from the reproduction itself;
• Safeguards. The court is given power to order the making of further reproductions from a negative. In New South Wales, Queensland and Tasmania there are provisions (not found in the Victorian legislation) which provide that where a document has been destroyed or lost, ‘the law, order (of a court), practice or usage’ relating to:
― discovery of documents,
― production of document for inspection,
― the permitting of the making of copies or the taking of extracts and
― the supplying of copy documents
shall apply to any transparency of such a document and to any affidavit relating to its copying its destruction and loss. It is also provided that the obligation to produce the transparency for inspection includes providing proper facilities for reading it and an obligation to produce prints. In addition there are provisions which state matters to be considered in deciding what weight to attach to a reproduction there is also a discretion to reject the evidence ‘in the interests of justice’.
• Power of Minister to Exclude Documents. The States other than Victoria have a provision by which the Minister (or Governor or Attorney-General) may exclude the operation of the provisions in respect of any document or class of documents. One reason for this provision was to enable established probate practices to be preserved.[31]
• Satisfaction of State Stamp Acts. The States other than Victoria provide that reproductions are only admissible subject to the provisions of their respective Stamp Acts.
• Reservation of Libraries and Archives Legislation. The operation of legislation relating to libraries and archives is preserved in the States other than Victoria.
66. Other Legislation Relating to Copy Documents. There is also legislation in the Australian Capital Territory, South Australia, and the Northern Territory which relates to the tendering of copy documents. In these jurisdictions there is no ‘reproductions’ legislation. The copy documents legislation is also found in some other States and Territories:
• Australian Capital Territory. The Evidence Ordinance 1971 s 15, enables the tendering of a machine copy or a reproduction of official documents certified to have been made while in the control or custody of public officers and whether or not the original document is in existence or not. The original document must have been admissible in the proceedings.
The section relates to reproductions of documents which by law must be lodged with government bodies.[32] There is also a provision enabling facsimiles to be tendered upon proof to the satisfaction of the court that the copy was taken or made from an original document by means of a machine, that it was compared with the original, and that notice to produce the original has been given.[33]
• The Northern Territory. There is legislation dealing with the photographs of old records. This relates to documents held by the Crown or ‘prescribed corporations’.[34]
• South Australia. Reproductions of business records and other documents may be admitted under two general provisions—s 45a and 45b of the Evidence Act 1929. Documents to include ‘any reproduction of an original document (or business record) by photographic, photostatic, lithographic, or other like process.’ The reproduction will be admissible if it is apparently genuine. There is a discretion in the court, however, to exclude a reproduction if it is of the opinion that:
― the person by whom or by whose direction it was prepared can and should be called;
― the evidentiary weight of the document is slight and outweighed by the prejudice that might be caused to any of the patties; or
― the admission of the document is otherwise contrary to the interest of justice.
Directions are also given as to the manner in which the weight to be attached to the document should be established. There is no certification or affidavit procedure.
67. State and Territory legislation which relax the hearsay rule to enable statements in documents and records to be tendered contain provisions which enable copies to be tendered. There are two approaches:
• South Australia, New South Wales and the Northern Territory. A copy may be tendered if undue expense or delay would otherwise be caused. It has to be certified as a true copy in such manner as the court may require.
• Tasmania, Victoria, Western Australia, Queensland, and the ACT. A general discretion to admit copies is given, and the court also decides on the appropriate way to authenticate the copy.
The legislation generally requires that the person who made the statement or supplied the information be called as a witness subject to specified grounds of excuse. The legislation also gives the court a discretion to exclude the evidence. The grounds differ.
68. State and Territory legislation relating to ‘banker’s books’ and ‘books of account’ also enable copies to be given in evidence. They must, however, be verified by evidence that the document copy was examined with the original and is correct. The Commonwealth, New South Wales, and Tasmanian ‘Business Records’ legislation would permit microfilmed records to be tendered.[35]
69. Australian Public Documents. There are statutory provisions in all States and Territories and at the Commonwealth level. They modify the common law by facilitating the proof of the secondary evidence of public documents. They generally relate to books or documents which are of such a public nature as to be admissible on production from proper custody. This appears to be an attempt to describe documents which would be ‘public documents’ at common law:[36]
• Commonwealth. The Evidence Act 1980, s 6, enables evidence to be given of the contents of such books or documents of the Commonwealth by tendering an examined copy of the document or an extract or a copy that purports to be signed and certified as a true copy or extract by an officer of the Commonwealth who certifies that he has the custody of the original. The State and Territorial Laws and Records Recognition Act 1905 s 10, contains a similar provision relating to books or documents of any State or Territory that are admissible as public documents in that State or Territory.
• States and Territories. The legislation in the States and Territories is to the same effect as the Commonwealth but varies.[37] Points of interest are:
― ACT. The provision is not limited to public documents but applies to any document of such a nature that it is admissible on production from proper custody.
― South Australia, New South Wales, and the Northern Territory. The legislation stipulates fees that are to be payable.
― Queensland and ACT. This is the only legislation which repeats the Commonwealth requirement that the certifying officer should certify that he is the officer who has the custody of the original.
― Christmas and the Cocos (Keeling) Islands. The legislation defines public documents and contains a procedure for obtaining certified copies which are admissible in evidence. Public document is defined to include documents which form the acts or records of the acts of the sovereign authority, official bodies or tribunals, or of public officers, legislative, judicial and executive, (whether of the colony, any other part of Her Majesty’s Dominions or of a foreign country). It includes public records, kept in the colony, of private documents.
70. Foreign Public Documents. Commonwealth. There is no Commonwealth legislation and there are no provisions in the evidence legislation of New South Wales, or Victoria.[38] Elsewhere the legislation varies as to the countries to which it relates:
• Queensland, the ACT and the Christmas and the Cocos (Keeling) Islands. The legislation extends to all foreign countries.
• Western Australia, Tasmania, South Australia and the Northern Territory. The legislation is restricted to documents of ‘Her Majesty’s Dominions’ (in the case of South Australia, the United Kingdom as well).
The legislation generally provides for evidence to be given by examined copy or a copy that purports to be certified by a person who has the custody of it.[39] The legislation of the ACT and Western Australia is not in such terms, but it dispenses with proof of the fact that the person who certified had the custody of the document. In addition:
• Queensland. The legislation requires that the overseas documents would have been admissible in Queensland as a Queensland public document on the production from proper custody.
• Northern Territory, ACT and South Australia. The legislation requires that the document should be provable according to the law of the country from which it originates.
• ACT. The legislation also enables copy documents to be tendered if they would be admissible in evidence under the law of a Commonwealth country by production of a copy or if they are copy documents kept at a company registration office of a Commonwealth country and would be admissible in that country.
71. Registers.[40] With one exception, there is no relevant Commonwealth legislation. Generally, the legislation creates exceptions to the hearsay rule and provides that secondary evidence may be received and treated as having prima facie weight. The State and Territory provisions vary:
• General Provision. In Western Australia there is a general provision enabling the contents of registers kept, or purporting or appearing to be kept by a person pursuant to statute to be admitted in evidence (thus providing an exception to the hearsay rule) and for the contents to be proved by a document purporting to be a copy and certified as correct or by tendering a Gazette or document purporting to be printed by the Government Printer, or by the authority of the State, containing a purported copy of the Register.[41]
• Registers of British Vessels and Ship’s Articles. In South Australia, Victoria, Queensland, Western Australia there are provisions which enable the contents of registers of British vessels to be proved by production of an examined copy or a copy purporting to be certified under the hand of the person having charge of the original. In Victoria the provision extends to proof of the contents of ships articles and the signatures thereto. There are provisions in Northern Territory and New South Wales which vary in terminology somewhat but also enable the contents of ships’ registers to be proved by secondary evidence. The New South Wales provision also relates to ship’s articles and the signatures thereto.[42]
• Registers cf Newspaper Proprietors. In Western Australia there is a provision enabling the contents of registers of newspaper proprietors to be proved by a copy or extract purporting to be certified by the Registrar of the Supreme Court or his deputy or under the official seal of the Registrar.[43]
• Births, Deaths, Marriages and, Adoptions.[44] At Commonwealth level, the Family Law Act 1975, s 102, enables a document to be tendered which purports to be a certified copy of a certificate, entry or record of birth, death or marriage occurred in Australia or elsewhere. There are provisions in all States and Territories enabling similar secondary evidence to be given of the contents of such records. In Queensland and the ACT, the provision also extends to certificates and entries or records of adoption. Most provisions require no formal proof of the signature and authority of the certifier. It is enough that the certificate purports to be given by the named officer.[45]
The Queensland and the ACT provisions apply whether the event took place in Australia or elsewhere. The New South Wales provision extends to records in other States and Territories, the British Commonwealth, Territories of the United Kingdom and other countries or territories published in the Gazette. The Norfolk Island provision is similar. The provisions of the other States and Territories appear to apply to records internal to the State or Territory. All the provisions vary to some extent and, in particular, on the precise certification procedure to be followed and the proof required.[46] Not all make the evidence prima facie proof.[47]
• Registered Documents of Title, Deeds and Writings. There is specific legislation in Victoria, New South Wales, Queensland and the Northern Territory facilitating secondary evidence of Crown grants and letters patent. The provisions differ.[48] For example:
― New South Wales and the Northern Territory. The legislation provides that documents kept by the Chief Secretary or Registrar-General purporting to be entries or copies of letters patent or deeds of grant of land in New South Wales and kept as a record for public or official purposes may be proved by an entry or copy or a certified copy of the entry or copy under the hand of the Chief Secretary or Registrar-General. Such a copy shall have the same force and effect, for the purposes of evidence, as if the originals had been produced. A fee is prescribed for the certification.
― Victoria. A certified copy is sufficient evidence of a grant. The legislation does not deal with letters patent.
― Australian Capital Territory. A registered grant, certificate of title or instrument affecting land may be proved by certified copies signed and sealed by the Registrar.
The legislation generally dispenses with formal proofs[49] of the certification. In the Northern Territory it is provided that, if notice is given, it is not necessary to prove the signature of the officer who certified the copy.
In New South Wales, the Northern Territory and Tasmania there is legislation describing the secondary evidence that may be given of registered deeds and writings. The New South Wales legislation allows the use of:
― certified copies of deeds or writings filed in Registrar-General’s Office—if produced by the Registrar-General, Deputy Registrar or clerk authorised to do so;
― office copies of such certified copy—if notice has been given or;
― office copies of the contents of any memorial of a deed or writing registered in the office—if notice is given.
The certified copy or office copy is prima facie evidence of due execution only if the deed or writing has been registered for more than 20 years. The legislation differs.[50] In Tasmania and the Northern Territory a wider class of documents is dealt with:
― Tasmania. Documents filed, entered, registered or recorded or enrolled in the Supreme Court, Land Titles Office, Register of Deeds or any other public office under the provisions of any Act are included.
― Northern Territory. Deeds or writings registered in the office of any other public official under the provisions of any law in force in the Territory are included.
The Tasmanian legislation refers to office copies only. The Northern Territory provision enables evidence to be given by copies produced by the officer having custody or control and by copies certified by such officer. Certification is not required if notice has been given to the opposing party.[51]
72. Documents Kept and Registered at Corporate Affairs Offices. The State and Territorial Laws and Records Recognition Act 1901, subs 16(2), states that copies or extracts from documents kept in registered offices for the registration of companies in any State or Territory may be tendered in evidence, if certified under the hand of the registrar, assistant or deputy registrar, to the same extent and for the same purposes as the original. There are provisions in the Evidence Acts of Queensland, Tasmania, Western Australia, Victoria, New South Wales, the Northern Territory and the ACT allowing evidence of the contents of such documents to be given by an examined copy or extract or certified copy or extract.[52] Generally, the provisions enable such evidence of documents in offices in other States and Territories.[53] The ACT, Northern Territory and New South Wales provisions apply to Commonwealth countries. The Tasmanian provisions extend to documents in the United Kingdom.[54]
73. Evidence of Incorporation of Companies. In Australia, the incorporation of a company is completed by the issuing of a certificate by the relevant Commissioner or Registrar.[55] This certificate states that the company is incorporated, gives the date of its incorporation and describes the type of company—limited by shares of guarantee or both, unlimited or no-liability as the case may be and, where appropriate, that it is a proprietary company. There is legislation which facilitates proof of the incorporation and enables secondary evidence to be given of the certification by certificates issued subsequently. The State and Territorial Laws and Records Recognition Act 1901, s 16, provides that a court shall admit as evidence of the incorporation of a company incorporated or registered in any State or Territory, a certificate of the incorporation or registration which purports to be signed by the registrar, assistant or deputy registrar of companies in the relevant State or Territory. The Evidence Acts of Queensland, Tasmania, Western Australia, and Victoria contain similar provisions. It is generally sufficient that the certificate purport to be signed by the appropriate official.[56] Other legislation removes the need to prove the authenticity of a certificate.[57] the evidence legislation of Tasmania and Queensland extends to evidence of the incorporation of overseas companies. In Christmas and the Cocos (Keeling) Islands, the general provision relating to the proof of foreign public documents would apply to such companies.[58]
74. Court Documents—Bankruptcy Proceedings. The Bankruptcy Act 1966, s 259, enables copies of petitions, orders and filed documents to be admitted if they appear to be sealed with a seal of the court; stamped with a s 26 stamp; signed by a judge of the court; or certified by the registrar.[59] The only State provision is contained in the Evidence Act 1898 (NSW) s 22. It enables copies of similar documents to be admitted if sealed with the seal of any court having jurisdiction in bankruptcy or if signed by any judge of such a court or certified by any registrar of such a court. The legislation dispenses with proof of the sealing signature, and authority.[60]
75. Court Documents—Proof of Convictions, Acquittals, Judgments, and Other Judicial Proceedings Within the Commonwealth. There are two general Commonwealth provisions to consider:
• Evidence Act 1905, s 11. This section enables evidence of judicial proceedings in federal courts including documents filed in the High Court and any federal court to be given by examined copy, a copy purporting to be sealed with the seal of the court or certified by the registrar or chief officer of the court. The provision does not refer to the courts of the Territories and does not specifically refer to judgments, decrees, orders, convictions or acquittals.
• State and Territorial Laws and Records Recognition Act 1901, s 17. This section is in similar terms but relates to proceedings of any State or Territory court, and expressly extends to judgments, decrees, rules, orders. Instead of a certified copy, it permits evidence to be given by copies that purport to be signed by a judge of the court where there is no seal.
There are very detailed provisions in a number of States dealing with the method of proving convictions, acquittals, sentences, recognizances and similar orders. They generally require production of a certificate signed by a judge, justice, clerk of courts, or officer having the custody of the records or the deputy of such officer. There are detailed provisions relating to the contents of the certificate which also enable it to be used to prove all matters that must be proved under the legislation. This is the approach in New South Wales, the Northern Territory and Tasmania. Somewhat similar provisions are to be found in other States and Territories. However, there are provisions in Queensland, Victoria, Tasmania and Western Australia which relate to the proof generally of judgments, decrees, orders and other judicial proceedings[61] of courts within—the Commonwealth. The Queensland provision is the most recent and straightforward provision.[62] The forms of proof vary but involve various combinations of the methods referred to in the Commonwealth legislation.[63]
76. Court Documents—Proof of Judgments, Decrees, Rules, Orders and Other Judicial Proceedings of Courts Outside the Relevant Jurisdictions.[64] There is no Commonwealth legislation. Some of the legislation of States and Territories referred to in the previous paragraph dealing with proof of convictions expressly extends to courts outside the Commonwealth of Australia:
• Tasmania and Western Australia. Convictions in any part of ‘Her Majesty’s Dominions’.
• New South Wales and Northern Territory. There is no geographical limit.
• ACT. Convictions recorded in courts in ‘a Commonwealth country’.
• Victoria. There is a separate section which relates to convictions in the United Kingdom and certain Commonwealth countries. The Victorian section requires a particular form of certificate and also attestation by, for eg, a justice of the peace or notary public.
There are also States and Territory provisions relating to the proof of judgments decrees and other judicial proceedings. They generally include documents filed in a court. The provisions differ in many ways.[65] The legislation, either in its own terms or by reference to other sections[66] in the same legislation, enables evidence to be given by examined copies, copies purporting to be sealed or copies purporting to be signed by a judge of the relevant court (where the court has no seal). In the ACT, however, certification by the custodian is required instead of a seal or the judge’s signature. Proof that the person signing had the authority claimed is not required.[67] In Tasmania and Western Australia, certification is provided for in addition to the other requirements.[68] The definition of the relevant courts varies but in the end result has the effect that the legislation applies to any court situated in countries other than Australia. It should be noted, however, that the Queensland definition also refers to a part of a country in its definition. The provision in the Christmas and the Cocos (Keeling) Islands requires certification by a representative of Her Majesty in the relevant country that the copy has been certified in the manner commonly used in that country.
[1] ‘Documents’ are defined in the Commonwealth Evidence Act 1905 to cover such means of recording information. The term is defined widely in several States and Territories—eg, ‘any device by means of which information is recorded or stored’ (Evidence Act 1900-1979 (WA) s 79B); ‘disc, tape, in which sound or other data are embodied’ (Evidence Act 1958 (Vic) s 3(1)).
[2] The purpose for which the party seeks to tender evidence of the contents of a writing is important. It has been held, for example, that oral evidence may be given of the contents of a label on a bottle for the purpose of identifying the bottle: Commissioner for Railways (NSW) v Young [1962] HCA 2; (1962) 106 CLR 535.
[3] See eg R v Matthews & Ford [1972] VicRp 1; [1972] VR 3, 13; Kajola v Noble [1982] Crim L Rev 433; cf, however, Carswell v Tapfield [1981] 1 NSWLR 595 below.
[4] JH Buzzard, R May & MN Howard, Phipson on Evidence, 12th edn, Sweet & Maxwell, London, 1976, para 1807; PK Waight & CR Williams, Cases and Materials on Evidence, Law Book Co, Sydney, 1980, 493; SA Schiff, Evidence in the Litigation Process, Carswell Co, Toronto, 1978, 757-8. Note, however, R v Quinn and Bloom [1962] 2 QB 245, where a film of a reconstruction of the event in question was rejected as not the best evidence. A photograph of a writing, however, is treated as secondary evidence of a document.
[5] Phipson on Evidence, para 1797.
[6] Durston v Mercuri [1969] VicRp 62; [1969] VR 507, 512.
[7] [1979] VicRp 7; [1979] VR 57.
[8] id, 59. See also R v Matthews and Ford [1972] VicRp 1; [1972] VR 3, 11-3; Beneficial Finance Co Ltd v Conway [1970] VicRp 39; [1970] VR 321.
[9] [1979] VicRp 7; [1979] VR 57.
[10] [1980] 1 A Crim R 239.
[11] id, 241. In both cases, the issue arose of whether the transcript should be left with the jury. The issue was resolved by asking whether fairness required that the transcript be excluded from the jury room.
[12] [1976] WAR 62 (Wright J).
[13] id, 64. This case was discussed in (1977) 51 ALJ 94.
[14] And at least authenticate the tape recording and identify the voices in the original recording; R v Magsud Ali [1966] 1 QB 688; R v Robson [1972] 1 WLR 651; Walsh v Wilcox [1976] WAR 62; R v Stevenson [1971] 1 All ER 678.
[15] Grant v Southwestern and County Properties Ltd [1974] 2 All ER 465; Senior v Holdsworth [1975] 2 All ER 1009; Australian National Airlines Commission v Commonwealth of Australia [1975] HCA 33; (1975) 132 CLR 582 (Mason J); Cassidy v Engwirda Construction Co [1967] QWN 16.
[16] [1981] 1 NSWLR 595. In R v Field, unreported, NSW Court of Criminal Appeal (25 March 1982) counsel for the accused pressed for admission of the transcript.
[17] [1981] TASRp 8; (1982) 38 ALR 356, 362.
[18] Cases cited above and R v Stevenson [1971] 1 All ER 678; R v Robson [1972] 1 WLR 651.
[19] [1966] 1 QB 688.
[20] If a copy of a writing is tendered, it is necessary to adduce evidence that it represents the contents of the original: See JH Chadbourn (ed) Wigmore on Evidence, Little Brown & Co, Boston, 1972, vol 4, para 1277. The Singapore Evidence Ordinance applying in the Christmas—Cocos (Keeling) Islands reflects the common law but introduces its own exceptions—for example, no notice to produce is required where adverse party has original in court, knew it would be required or obtained it by force or fraud.
[21] R v Swartz (1978) 37 CCC (2d) 409, 411.
[22] Waight & Williams, 528.
[23] Wigmore on Evidence, para 1198; MJ Montalto, ‘Microfilm, Photographic Copies and Computer Output as Evidence’ (Master of Laws Thesis, Monash University, 1977).
[24] JA Gobbo, D Byrne & JD Heydon, Cross on Evidence, 2nd Aust edn, Butterworths, Sydney, 1979, ch 21; Phipson on Evidence, para 131. Another exception to the rule is that a party may give evidence of oral or written admissions made by the other party about the contents of the relevant writing. Cross on Evidence, para 18.86, 21.4. The Singapore Evidence Ordinance sets out different permissible degrees of secondary evidence for different situations.
[25] R v Halpin [1975] QB 907 is English authority for the proposition that such enquiry is not necessary. This case has been considered in Australia in Gaggin v Moss [1983] 2 Qd R 486—(this case has gone on appeal).
[26] Evidence (Reproduction) Act 1967 (NSW ); Evidence Act 1977 (Qld) s 104ff; Evidence Act 1910 (Tas) s 68Aff; Evidence Act 1958 (Vic) s 53ff; Evidence Act 1906 (WA) s 73. It was enacted as a result of action taken by the Standing Committee of Commonwealth and State Attorneys General following a report by the Victorian Chief Justice’s Law Reform Committee. There is no equivalent legislation in South Australia, Northern Territory, Norfolk Island or the Christmas and Cocos (Keeling) Islands.
[27] The legislation differs in that the Western Australian legislation contains additional provisions relating to compliance with the Stamps Act, Ministerial power to exclude documents, and different provisions relating to the period for which original documents must be kept, and the period prescribed for ancient documents. The differences are referred to below.
[28] The contrary view appears to have been held by the NSW Attorney-General’s Department which has approved COM units under the legislation (s 13 & 15). The non-application of the legislation should not create difficulties. Reliance can be placed on the business records provisions: See TH Smith, ‘Legality—Information Technology & the Laws of Evidence’ (1982) 1 JLIS 89. There is much doubt and uncertainty amongst users, however, caused partly by the belief that if microfilm is not admissible under the reproductions legislation it is inadmissible. This is understandable but mistaken.
[29] Western Australia, 173 Hansard (1966) 579.
[32] Note also Evidence (Reproductions) Act (NSW) 1967 s 3: Evidence Act 1977 (Qld) s 105; Evidence Act 1910 (Tas) s 68B.
[33] Note also Evidence Act 1898 (NSW) s 34: Evidence Act 1977 (Qld) s 116: Evidence Act 1910 (Tas) s 68.
[34] Evidence Act (NT) s 42B—note similar provisions in Evidence Act 1898 (NSW) s 43C: Evidence Act 1906 (WA) s 65A. The New South Wales provision also applies in Norfolk Island.
[35] See definition of ‘document’. See also recently enacted: Evidence Act 1910 (Tas) s 40B-C.
[36] Cross on Evidence, para 18.69—cf the similar wording of Article 79, JF Stephen, A Digest of the Law of Evidence, Macmillan, London, 1876.
[37] Evidence Act: (NSW) s 16; (Qld) s 44; (SA) s 40; (Tas) s 57; (Vic) s 650); (WA) s 67; (ACT) s 12; (Christmas and Cocos Keeling Islands) s 76-7; (Norfolk Island) s 15; (NT) s 31.
[38] Evidence Act: (Qld) s 72; (SA) s 40; (Tas) s 55; (WA) s 65; (ACT) s 50-1; (Christmas and Cocos Keeling Islands) s 78(f); (NT) s 30.
[39] The latter alternative is not available on the Christmas and Cocos (Keeling) Islands. The legislation provides for proof by the original or a copy certified by its legal keeper, accompanied by a certificate under seal of a Notary Public, British Consul or diplomatic agent verifying that the copy was duly certified by the custodian of the original. It requires proof of the ‘character of the document’ according to the law of the foreign country.
[40] Family Law Act 1975 (Cth) s 102.
[41] Evidence Act 1906 (WA) s 69A.
[42] Evidence Act 1898 (NSW) s 33; Evidence Act 1977 (Qld) s 52; Evidence Act 1929 (SA) s 44; Evidence Act 1958 (Vic) s 52; Evidence Act 1906 (WA) s 68; Evidence Act (NT) s 34.
[43] Evidence Act 1906 (WA) s 69.
[44] Family Law Act 1975 (Cth) s 102; Evidence Act 1898 (NSW) s 30; Evidence Act 1977 (Qld) s 74; Births, Deaths & Marriages Registration Act 1966 (SA) s 67; Evidence Act 1910 (Tas) s 64; Registration of Births. Deaths & Marriages Act 1959 (Vic) s 53: Registration of Births, Deaths & Marriages Act 1961 (WA) s 19; Evidence Ordinance 1971 (ACT) s 13; Registration of Births & Deaths Ordinance (Singapore) as applied to the Christmas and Cocos (Keeling) Islands, s 23(5); Registration of Births, Deaths & Marriages Ordinance 1963 (Norfolk Island) s 56; Evidence Act (NT) s 26E, 40.
[45] In NSW the result is achieved by s 15 Evidence Act 1898, which dispenses with such proofs. In Tasmania the courts are directed to take judicial notice (s 47 Evidence Act 1910).
[46] Also the evidentiary effect of the secondary evidence and its weight.
[47] Only South Australia, Western Australia, Victoria, Christmas and Cocos (Keeling) Islands make the evidence prima facie proof. See the relevant provisions above.
[48] Evidence Act 1898 (NSW) s 26; Evidence Act 1977 (Qld) s 56, 58; Evidence Act 1958 (Vic) s 73; Evidence Act (NT) s 37.
[49] Evidence Act 1898 (NSW) s 15; Evidence Act 1977 (Qld) s 58; Evidence Act 1958 (Vic) s 45; Evidence Ordinance 1971 (ACT) s 12. The ACT provision gives certified copies prima facie weight; the Queensland stipulation is conclusive in the absence of contrary evidence, otherwise the legislation does not subscribe weight to the evidence.
[50] Evidence Act: (NSW) s 28; (Tas) s 61. Real Property Act 1861-1980 (Qld) s 122; Registrar of Titles Act 1884 (Qld) s 6; Registration of Deeds Act 1935-80 (SA) s 44; Property Law Act 1958 (Vic) s 11; Instruments Act 1958 (Vic) s 108. Registration of Deeds Act 1856 (WA) s 15; Registration of Deeds Ordinance (Singapore) s 22.
[51] In the Northern Territory Evidence Act (NT) s 38 creates a presumption of due execution of the original on production of a certified or office copy—if registered for 30, 20 years respectively. There is no presumption in the Tasmanian legislation. Other provisions in other States and Territories are referred to in the abovementioned paragraph. The provisions are contained in legislation other than evidence legislation. See also the Evidence Act 1977 (Qld) s 57, which is a limited provision enabling certified copies of instruments of lease or licence to be tendered in evidence and deals with their weight.
[52] Proof is facilitated in some jurisdictions by legislation directing on enabling judicial notice to be taken of the prescribed signature (Vic s 79) or dispensing with proof of the authority of the certifier (ACT s 51) and of the signature (NSW s 15, Vic s 45, WA s 67, Tas s 57, ACT s 12, NT s 31).
[53] Except Tasmania, Victoria and Western Australia.
[54] Evidence Act 1898 (NSW) s 32; Evidence Ordinance 1971 (ACT) s 50; Evidence Act 1939 (NT) s 41; and Evidence Act 1910 (Tas) s 74.
[55] Companies Act 1981 (Cth) s 35.
[56] It also provides that the date of incorporation or registration mentioned in the certificate shall be evidence of the date on which the company was incorporated or registered. It can apply to the original certificate or a certificate issued at a later date. In Victoria, however, it is provided that the certificate shall be prima facie evidence. The Companies Act 1981 (Cth) s 549 provides that a certificate of incorporation signed by the Registrar or named deputies is conclusive evidence of the due registration and incorporation of the named company.
[57] See n 52.
[58] Evidence Ordinance 1955 (Singapore) as applied to the Christmas and Cocos (Keeling) Islands, s 78(f).
[59] It would appear appropriate at this stage simply to permit the Commonwealth provision to operate notwithstanding any general provision about proof of court records.
[60] Evidence Act 1898 (NSW) s 15.
[61] Evidence Act: (Qld) s 53; (Tas) s 75-6; (Vic) s 49, 88-9; (WA) s 47, 80; Evidence and Discovery Act 1867-1977 (Qld) s 31. The general provisions in Victoria and Western Australia, like the commonwealth provisions referred to above, do not specifically mention convictions, acquittals and sentencing.
[62] Evidence Act 1977 (Qld) s 53. The provisions in Queensland and Victoria also refer to wills and codicils deposited, filed or presented in any such court.
[63] Some of the legislation (NSW, Northern Territory, Tasmania, Western Australia and Victoria) provides that a conviction shall be presumed not to have been appealed against or, with the exception of NSW and the Northern Territory, quashed or set aside unless the contrary is proved. The general Victorian section provides that the evidence given by the examined or sealed copy is prima facie evidence. This approach is not taken in the other legislation.
[64] Evidence Act: (NSW) s 23; (Qld) s 69; (Tas) s 76(5); (Vic) s 88; (WA) s 47(4); (Norfolk Island) s 23; (NT) s 32; Evidence Ordinance: (ACT) s 94; (Christmas and Cocos (Keeling) Islands) s 78(f).
[65] Evidence Act: (NSW) s 15, 21; (Qld) s 44, 69: (SA) s 38(2), (3); (Tas) s 75; (Vic) s 45, 49; (WA) s 80; (Norfolk Island) s 15, 21; (NT) s 28; Evidence Ordinance: (ACT) s 49, 57; (Christmas and Cocos (Keeling) Islands) s 87.
[66] Evidence Act 1898 (NSW) s 15; Evidence Act 1977 (Qld) s 44; Evidence Act 1958 (Vic) s 45; Evidence Ordinance 1971 (ACT) s 51.
[67] Evidence Ordinance 1971 (ACT) s 51.
[68] In Victoria it is provided that the copy shall be prima facie evidence.
77. Definition. Definition of the hearsay rule has proved to be difficult.[1] In Cross on Evidence the hearsay rule is given a preliminary definition in the following terms:
Assertions of persons other than the witness who is testifying are inadmissible as evidence of the truth of that which was asserted.[2]
Writers and authorities would agree that the rule has at least that operation. There is disagreement about whether it excludes evidence by a witness about his own out of court statements.[3] There is also disagreement about whether it excludes implied assertions.
78. It is clear that express written or oral assertions and conduct intended to be asserted comes within the rule. There is disagreement however, as to whether evidence of implied assertions of fact or opinion—whether implied from words or conduct—come within the rule. In the leading case of Wright v Doe de Tatham[4] it was held that three letters written to the testator showing that the writer regarded him as sane were inadmissible on the issue of the testator’s capacity. In the same case, however, evidence was admitted that the testator was treated with disrespect by his steward, was treated as a child by servants and residents of his village and that he was called ‘Silly Jack’ and ‘Silly Marsden’ by his neighbours. Other similar evidence was admitted. Its relevance lay in the fact that it revealed that people believed that the testator was insane. In dealing with the admissibility of such evidence, the courts have taken different approaches:
• Oral Statements. In Teper v R,[5] it was held that evidence of oral statements is hearsay evidence if tendered to prove the truth of the state of fact impliedly asserted. The opposite conclusion has been reached in cases where it is sought to tender evidence of what is said in a telephone conversation. Most cases concern charges of using premises for gambling and it is sought to lead evidence of the receipt of telephone calls at the premises in the course of which the caller attempted to place bets. Such evidence has always been received. It is not clear, however, whether it should be received as an exception to the rule against hearsay (the approach taken in Marsson v O’Sullivan[6] or whether it is received as ‘operative words[7] or as statements explaining a relevant act.[8] It is difficult to escape the conclusion, however, that the statement is relevant because of the implied assertion of fact made by the caller that the premises are used for gambling purposes. The same comment can be made on the reasoning of the Privy Council in Ratten v R[9] where it was held that the evidence of a telephone call in which was heard an hysterical high-pitched voice was relevant to show that the caller was afraid but was not an assertion by the caller that she was being attacked and therefore was not hearsay evidence. The evidence could only have been relevant for its implied assertion that the caller was in justified fear of attack. One might therefore argue that the Privy Council took the view that implied assertions did not fall within the hearsay rule. The issue also arose in the case of.[10] In that case the Court of Appeal held that evidence of the words ‘get out!’ was admissible to prove the identity of the speaker—the proprietor of the premises. It might be thought that this evidence was relevant on the issue of identity on the basis of the assertion to be implied from the statement that the person making it was entitled to make it and was therefore the proprietor. The distinction accepted by the Court of Appeal was that:
Inference from words that they were spoken by someone acting as if he were the proprietor is not the same thing as the use of words to prove proprietorship. We find it difficult to see how words in the imperative mood can in the normal case ever be testimonial in the present sense lie hearsay). A command is not an assertion the truth or falsity of which can be assessed ...[11]
• Admissions Implied from Conduct. Evidence of conduct such as flight or silence—raises the same issue. In Holloway v McFeeters[12] Justice Kitto took the view that evidence of a man’s flight from a motor car accident came within the hearsay rule but because the man was not a patty to the action, the evidence was not receivable as an admission. The view of the other members of the court is far from clear. Justices Williams, Webb and Taylor stated that the evidence could be taken into account in ‘weighing the probabilities’. Sir Owen Dixon held that the evidence could not be excluded as it was part of the facts in issue. Evidence of silence on the part of a party can be admitted as an implied admission and as an exception to the hearsay rule.[13] There is authority, however, that evidence of silence is not hearsay evidence—at least where evidence of lack of complaints by customers is tendered to prove that beer supplies were satisfactory.[14] Justice Mahoney in Jones v Sutherland Shire Council[15] has suggested an analysis of the problem. Looking at the topic of inferences to be drawn from conduct His Honour concluded that the hearsay rule applied only to those cases involving reasoning from the person’s ‘knowledge of some fact’ to the ‘the existence of that fact’.[16] He argued that an inference from conduct will not be caught by the hearsay rule where the ‘inference is direct from what is observed to the fact to be inferred: there is no intermediate step, in the form of a statement or a mental element’. He also argued that even if there is a mental element involved in the reasoning process, an inference of fact will be excluded only if it is inferred ‘from the fact that the person thought or said that the fact was true’.[17]
This distinction, however, appears unrealistic. For example, the fact that the steward treated the testator with disrespect may give rise to the inference that the testator was not sane.[18] It would seem more realistic to say that this inference was to be drawn from the belief of the steward revealed by his conduct rather than from a general proposition that people don’t normally behave in this way unless they believe that a person is insane.[19]
79. Records. In Potts v Miller,[20] there are statements which could support a liberal approach to the admission of routine business records at least for the purpose of giving evidence of financial progress or the result of business operations. The strict application of the hearsay rule to the admission of records, however, would prevent this—see Myers v DPP.[21] In R v Rice[22] a used air ticket made out in the defendant’s name was admitted as evidence that a man called Rice had in fact travelled on a particular flight. It could be said that the ticket contained the booking clerk’s statement of what someone else had said to him when booking the ticket and that it was therefore being tendered as hearsay evidence. It was not followed in R v Gardner[23] where the strict approach was taken. There is uncertainty as to whether documents such as stock exchange lists, timetables, and documents of a similar nature are admissible at common law or whether the evidence is received in the course of taking judicial notice.[24]
80. Where the Maker of the Assertion is Dead. There is disagreement on the requirements of the exceptions to the rule which consist of assertions by persons since deceased:
• Declarations Against Interest. Such declarations are admissible if against proprietary or pecuniary interest but not if the statement renders the person liable to criminal prosecution or if it adversely affects the person’s reputation. It is also required that the statement must be presently and not contingently against the person’s interest. However a variety of tests, some of which may overlap, have been used to determine whether a statement of fact is against the declarant’s interest. These range from a test that the declaration could never be made available for the person himself to the test that as long as a particular statement on its face was against the declarant’s interest, it was admissible along with connected statements of fact which were not against interest.[25] Authorities and text writers conflict on the question whether the declarant must have had personal knowledge of the facts stated for the declaration to be admissible.[26]
• Declarations in the Course of Duty. The strict formulation of the rule requires a duty to both do an act and to record or report it and the owing of that duty to some third party. The exception also requires that the statement be contemporaneous with the matters to which it refers. There is uncertainty, however, as to whether oral statements are admissible in the same way as written ones,[27] whether the absence of a motive to misrepresent is a condition precedent to admissibility,[28] and whether declarations made in the course of duty can be received as evidence of collateral fact.[29]
• Dying Declarations. These are admissible only on charges of murder and manslaughter. The declaration requires the need for belief in the imminence of death at the time the statement was made. There are conflicting authorities on the question of whether a religious belief on the part of the declarant is a condition precedent to the admission of dying declarations or not.[30] There appear to be some differences of view as to whether the reasonabless of the apprehension of death is a pre-condition to the admission of the declaration.[31] Also uncertainty as to whether the declaration must concern only the facts leading up to and causing the death. The exception has been modified by legislation in some States and Territories.[32] The approaches have differed:
― In Tasmania, New South Wales, and the ACT, the person who made the statement must have believed that death was imminent although some degree of hope of recovery would not prevent the court allowing the evidence to be received. As to the type of proceedings in which the evidence may be received, the ACT provision extends the exception to civil as well as criminal proceedings while in New South Wales and Tasmania the exception is limited to criminal proceedings in which a dying declaration is now admissible. The ACT provision also has the condition that the person who made the statement must have been competent to give evidence at the time the statement was made.
― In Christmas and the Cocos (Keeling) Islands, evidence of the cause of the death or of the circumstances of the transaction resulting in the death is admissible in any proceedings in which the cause of death is in issue and is admissible irrespective of whether the person believed that death was imminent or not.
81. Public Documents. There must be a public duty to inquire and record. The matter recorded must be a public matter. The present law is that the public document must be available for public inspection and that it should have been made with intent that the public be able to inspect it and that it be kept permanently. Although it has been held in England[33] that the person making the record need not have personal knowledge of the matters being recorded, it is not yet established whether this is the law in Australia or not. There is, however, uncertainty as to whether the entry must be made by a person having a duty to inquire and satisfy himself of the truth of the recorded fact and whether the entry must be made promptly after the events which it purports to record.[34]
82. Res Gestae. There are statements of high authority that evidence admitted as part of the res gestae is not admitted as evidence of the truth of the facts stated and is, therefore, not an exception to the hearsay rule.[35] But most Australian State and Territory courts appear to have followed the more recent English approach in holding that statements forming part of the relevant transaction may be admitted for a hearsay purpose and as an exception to the rule.[36] Whatever approach is taken difficulties have arisen. A large number of different types of statements have been admitted in evidence under this alleged doctrine apart from the statement made on the spur of the moment under the influence of the then situation. Statements of intention are received in evidence to prove what the person’s then intention or state of mind was.[37] This can he used to prove that the intention was carried out when it is aided by the presumption of continuance. On the other hand a statement that the intention was carried out would not be admissible.[38] Evidence of statements about present bodily feelings may also be received. Evidence of statements alleged to accompany the act in question can also be given. This has been used to enable evidence to be given of phone conversations in which the caller sought to place a bet where the charges related to the conducting of a gaming house or illegal betting at the premises where the phone call was received. This principle was relied upon to some extent in Ratten’s case.[39] Uncertainties have been created by the problem of having to determine whether statements were sufficiently connected with the event to be admissible either as relevant facts or as exceptions to the hearsay rule. A wide variety of expressions have been used—contemporaneous;[40] substantially contemporaneous;[41] during or immediately before or after the events in question;[42] part of the transaction;[43] clearly connected with the transaction in time, place and circumstance;[44] not such an interval as to reduce a statement to a ‘mere narrative of a past event’;[45] spontaneous utterance emanating from the main transaction;[46] not such an interval as to allow fabrication;[47] made in such circumstances as to exclude the possibility of concoction or distortion. The last statement was made by the Privy Council in Ratten v R.[48] A difficult problem exists for the Federal, State and Territory courts in determining what approach should be taken in the light of this last expression of the criteria as compared with that of previous existing Australian and English decisions and because of the doubting words of the High Court in Vocisano v Vocisano.[49] There is also an issue whether the Privy Council in Ratten’s case added another requirement that the evidence of the connection between the statement and the event must come from sources other than the statement itself. Finally there appears to be some doubt as to whether special pre-conditions apply when statements are admitted on the basis that they accompany and explain an act leg, the gambling telephone call cases). Some suggested criteria include—the conduct to be explained by the words must be independently material to the issue,[50] the conduct must be equivocal,[51] and the words must explain the conduct.[52] In Tasmania a statutory exception has been created.[53] It extends to permit evidence to be admitted of a narration, description or explanation of ‘an act, condition or event’ made while the person was ‘perceiving’ or ‘spontaneously while the person was still under the stress of excitement caused by perceiving’.
83. Statements Concerning Health or Bodily Sensation. There is uncertainty as to whether such statements should be seen as exceptions to the hearsay rule or not.[54] Also uncertainty as to whether the declarant must be unavailable for the statement to be received.[55] There is also some doubt as to the extent to which the statement can go beyond the description of substantially contemporaneous symptoms to any statement of the history of the symptoms which was necessary to explain the nature of the existing symptoms.[56]
84. Identification.[57] The law is unclear on the question of when and in what circumstances evidence from a person of the act of identification by another person is admissible. In Alexander v R[58] the High Court was divided on the issue. Justice Mason (with whom Justice Aickin agreed) considered that such evidence was always admissible as original evidence, constituting no violation of the hearsay rule:
For my part, I see no violation of the hearsay rule ... In my opinion an identification made out of court by a person qualified to make it is admissible in evidence, subject to qualifications later to be mentioned. This is because an identification out of court, being earlier in time and made under circumstances which involve a selection in the absence of any compulsion, is more likely to be reliable than an identification made in court.[59]
Even if the person who made the out-of-court identification ‘cannot or will not identify the accused in court or does not depose to the ‘out of court’ identification’,[60] evidence of the out-of-court identification may be given by a person who observed it. The reception of such evidence does not violate the hearsay rule or the best evidence rule. It is the act of identification that is relevantly in issue. An observer of the act may give evidence of it. Obviously the weight to be given to this evidence varies with the circumstances ...[61]
85. On the other hand, Chief Justice Gibbs (and in effect, Justice Murphy) stated that evidence by a witness who observed another make an out-of-court identification of the accused, if tendered for the purpose of tending to prove the facts asserted, would be hearsay and on the authorities inadmissible.[62] But it would be admissible if not tendered to prove the facts asserted but rather:[63]
(a) tendered as original evidence.
(i) when the act of identification is itself relevant—‘perhaps because a reward had been offered to a person making an identification or because it was in issue whether the person making the identification had knowledge that the person identified had committed a crime ...’[64]
(ii) when the identifying witness has given evidence that he did identify someone as the person connected with the crime (implying that it was an accurate identification) but cannot now remember who it was that he identified. The evidence would be admissible to prove who was the person thus identified, not that he was correctly identified. It explains and gives meaning to the evidence of identification given by the identifying witness in the witness box.’[65]
(b) tendered as an exception to the rule against prior consistent statements:
to confirm the testimony of the identifying witness by showing its consistency with his previous act ... admitted by analogy with the rule that allows evidence of complaints to be given in sexual cases or with the rule allowing proof of previous consistent statements to answer a suggestion of late invention.[66]
86. Evidence in Former Proceedings. Such evidence can be tendered but only if a witness in the former proceedings is not available and if the later case is between the same parties or their privies and involves substantially the same issues. Cross raises the question whether this is an exception.[67] The exception is extended in Christmas and the Cocos (Keeling) Islands to the situation where the person is alive but has been kept out of court by the adverse party or where it would be unreasonably expensive to bring that person to court.[68] In all other States and Territories there is legislation which enables depositions taken in committal proceedings to be tendered where the witness is dead, too ill to give evidence, or absent from the jurisdiction.[69]
87. Prior Inconsistent Statements. It is clearly established that evidence of a prior inconsistent statement of a witness, when admitted, may be used only to impugn the testimony of the witness who is being or has been cross-examined and may not be used as evidence of the facts stated.[70] There are different qualifications to this general proposition:
• Common Law. Where the witness is a party, the statement may amount to an admission and be admissible as an exception to the hearsay rule. If a non-party witness admits the truth of the statement, it is admissible.[71]
• Legislation. The statement may be used to prove the facts stated in it if it comes within the State and Territory legislation amending the hearsay rule in relation to statements in documents. That legislation differs.[72] Specific qualifications are to be found in the legislation of Queensland and Tasmania. In those jurisdictions, provisions were enacted to permit tendering of the previous inconsistent statement made by a witness as evidence of any facts stated in them after being put to the witness in cross-examination. The Queensland legislation is in the following form:
101. (1) Where in any proceeding—
(a) a previous inconsistent or contradictory statement made by a person called as a witness in that proceeding is proved by virtue of section 17, 18 or 19; or[73]
(b) a previous statement made by a person called as aforesaid is proved for the purpose of rebutting a suggestion that his evidence has been fabricated,
that statement shall be admissible as evidence of any fact stated therein of which direct oral evidence by him would be admissible.
The Tasmanian provision[74] is to the like effect. The Queensland legislation[75] goes further in that it applies to prior inconsistent statements of a person who made or supplied information for a statement admitted, without calling that person under the statutory exceptions to the hearsay rule. It also expressly preserves the operation of any rules of law controlling the admissibility of documents used to refresh a witness’ memory when that witness is cross-examined on the document but goes on to provide that any statement in such a document shall be admissible as evidence of any fact stated in it of which direct evidence could have been given by the witness.[76]
88. Tendering Evidence of Prior Consistent Statements. The rule generally referred to as the rule against the proof of consistency or a prohibition on self-corroboration[77] prevents evidence being admitted of a witness’ prior consistent statements. Cross also has argued that the hearsay rule operates to prevent admission of such evidence—at least where it is sought to use it to prove the facts stated in it.[78] Some qualifications to the rule (or non-hearsay uses) are:
• Recent Invention. Where the prior consistent statement is admitted in evidence to rebut an allegation of recent invention or to meet some other attack on a witness’ credit, it is admitted for that limited purpose only and may not be used as evidence of the matters stated in it.[79] This rule is of long standing and well established.
The legislation of Queensland and Tasmania referred to above, however, permits the tender of prior consistent statements as evidence of the matters stated in them where those statements are led in evidence to rebut an allegation that evidence ‘has been fabricated’.[80] The expression ‘rebutting a suggestion that the evidence has been fabricated’—appears to be wide enough to cover allegations of ‘recent invention’ as well as wider attacks on the witness’ honesty and accuracy. In addition, the other legislation referred to above relaxing the hearsay rule could be applied, at least in civil trials, to enable some prior consistent statements to be tendered in evidence as evidence of the matters stated in them. A specific provision of the Christmas and Cocos (Keeling) Islands legislation goes further in the area of corroboration:
158. In order to corroborate the testimony of a witness, any former statement made by such witness, whether written or verbal, on oath, or in ordinary conversation, relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved.[81]
• Complaints in Sexual Cases. It seems that the High Court in Kilby v R[82] settled the evidential consequences of a complaint—‘the admissibility ... can only be placed ... upon the consistency of statement or conduct which it tends to show, the evidence having itself no probative value as to any fact in contest ...’. However, there is some uncertainty as to whether the doctrine extends beyond sexual cases in criminal law. Some old English cases[83] suggest that evidence of a complaint can be given in criminal cases involving violence or cruelty, but more recent Australian cases limit the rule to sexual offences.[84] It seems also that such evidence is not admissible in civil cases[85] although in a custody application under the Family Law Act 1975 (Cth). In the Marriage of E,[86] Justice McGovern allowed in evidence of complaints by a young girl regarding sexual assaults allegedly committed on her by her father. Relevant considerations were the wide evidentiary discretion given to the court under the Family Law Act, the paramount consideration of the welfare of the child, and use of the complaint more to show the child’s attitude to her father than to determine whether the assaults actually occurred.[87]
89. Evidence by Experts of Basis of Opinion. There are several areas of uncertainty of the common law:
• Valuation Cases—Evidence by Experts of Basis of Opinion. It has been suggested that the rule against hearsay evidence given by an expert is often not observed, particularly in valuation cases.[88] However, in Wright v Sydney Municipal Council[89] it was held that an expert could give evidence of sales of comparable land only if he can give legal evidence of such sales, or that evidence has already been given by the witness.
More recently, Justice Megarry in England appears to favour this position vehemently holding that details of comparable transactions upon which the valuer intends to rely must be confined to those details that have been or will be proved by admissible evidence.[90] In view of the support given in effect to the view of Justice Sly by Justice Megarry, it is possible that quite a strict approach will be taken henceforth to hearsay material in a land valuation context in Australia. However, the situation is governed by rules in some jurisdictions.
• Basis of Opinion on Welfare of Child. Before the passing of the Family Law Act 1975 Australian courts were prepared to admit reports compiled by welfare officers whether or not there had been strict compliance with the rules of evidence. The justification adduced was a fear of detracting from the usefulness of the reports.[91] Indeed, Chief Justice Burbury of the Supreme Court of Tasmania in Sing v Muir[92] was prepared to accept that so long as the contents of a welfare officer’s report are relevant and within the terms of the inquiry as directed by the judge ‘no question of admissibility arises’. Another view is that a judge may, in his discretion, decide not to receive in evidence the whole or part of a report.
I have no doubt that in accepting a ‘social background report’, the court should give to it and the sources from which it derives such weight as it thinks proper, and then only to the extent that the best interests of the child are not at risk. ... I am bound to say that the tendering of hearsay materials contained in a ‘social background report’ and of information supplying the antecedents of the child should not be allowed to be abused. If the report contains allegations based solely upon hearsay, in the proper case the court should make it clear that it will pay no attention to such allegations, unless they are supported by evidence which is legally admissible. A strict application of the rules of evidence may be necessary ‘in the best interests of the child’.[93]
90. Exclusion of Evidence Tendered to Prove Basis of Opinion. There may be some limit on the admissibility of such evidence. In Ramsay v Watson[94] the High Court of Australia considered a situation where the trial judge had stopped a medical witness recounting the statements of workmen which he had considered in coming to his conclusion when it became clear that the defence had no intention of calling the workmen. It is unclear, however, whether the evidence was excluded as being inadmissible as a matter of law or simply as part of the exercise of a discretion.[95] Acting Chief Justice Wanstall in R v Schafferius[96] appears to have interpreted the act of the judge in Ramsay as emanating from the exercise of a discretion.
91. Exceptions Relating to Expert Opinion Evidence. Necessity has resulted in some apparent exceptions being created. The scope of these exceptions is unclear. Exceptions of particular significance to opinion evidence are:
(a) The Expert’s Accumulated Knowledge. Justice Megarry in English Exporters Pty Ltd v Eldonwall[97] drew attention to the multifarious sources on which the expert’s opinion is based and, referring specifically to the formulation of an expert valuer’s opinions, commented:
In building up his opinions about values, he will no doubt have learned much from transactions in which he has himself been engaged, and of which he could give firsthand evidence. But he will also have learned much from many other sources, including much of which he could give no firsthand evidence. Textbooks, journals, reports of auctions and other dealings, and information obtained from his professional brethren and others, some related to particular transactions and some more general and indefinite, will all have contributed their share. Doubtless much or most of this will be accurate, though some will not; and even what is accurate so far as it goes may be incomplete, in that nothing may have been said of some special element that affects values. Nevertheless, the opinion that the expert expresses is none the worse because it is in part derived from the matters of which he could give no direct evidence.[98]
(b) Reported Data of Fellow-Scientists. In Borowski v Quayle[99] the following passage from Wigmore[100] relating to scientific data was cited with approval:
The data of every science are enormous in scope and variety. No one professional man can know from personal observation more than a minute fraction of the data which he must every day treat as working truths. Hence a reliance on the reported data of fellow-scientists, learned by perusing their reports in books and journals. The law must and does accept this kind of knowledge from scientific men. ... [T]o reject a professional physician or mathematician because the fact or some facts to which he testifies are known to him only upon the authority of others would be to ignore the accepted methods of professional work and to insist on finical and impossible standards. ... In general, the considerations which define the (professional) are (a) a professional experience, giving the witness a knowledge of the trustworthy authorities and the proper source of information, (b) an extent of personal observation in the general subject, enabling him to estimate the general plausibility, or probability of soundness, of the views expressed, and (c) the impossibility of obtaining information on the particular technical detail except through reported data in part or entirely. The true solution must be to trust the discretion of the trial judge, exercised in the light of the nature of the subject and the witness’ equipments. The decisions show in general a liberal attitude in receiving technical testimony based on professional reading.
In Borowski a witness had been prevented from giving evidence that ‘Evacillin was a form of penicillin’ on the ground that it was hearsay evidence. On an order to review evidence was led that, but for the ruling, the witness would have said in evidence:
Penicillin is an antibiotic substance included in Schedule Four of the Poisons Act 1962.
His Honour commented:
That he could by evidence have qualified himself to say this is beyond doubt, because, after the ruling, he was permitted without objection to give his qualifications by reference to his being a registered pharmaceutical chemist, his holding of various lectureships and offices and his experience in retail pharmacy. He has also sworn that he could have amplified this narration in a way which associated his experience and learning with antibiotic substances and penicillin, and that he could have supported his statement by reference to works of authority in pharmaceutical practice. In spite of a submission to the contrary, I consider this evidence would have been ample for the purpose. This evidence would have been directed to matter travelling outside opinion and dependent to a degree upon knowledge based upon hearsay. But this is an area where the hearsay rule does not apply and the matter dealt with in the evidence would clearly have been admissible.[101]
(c) Information Commonly Relied upon in an Industry, Trade or Calling. Wigmore has identified an important exception:
In a few narrow and usually well-defined classes of cases, recognition has been given, by way of exception to the hearsay rule, to certain commercial and professional lists, registers and reports ... The necessity in all of these cases lies partly in the usual inaccessibility of the authors, compilers or publishers in other jurisdictions; but chiefly in the great practical inconvenience that would be caused if the law required the summoning of each individual whose personal knowledge has gone to make up the final result.[102]
Wigmore also referred to the probability of trustworthiness arising from reliance upon the material. In the Victorian Supreme Court Justice Gowans held, citing the above passage from Wigmore, that testimony utilising ‘information commonly relied upon in the calling of pharmacy’ was admissible:
Records and materials of that kind may be the basis of evidence by one who is qualified as familiar with the business activity or calling in question.[103]
Similar exceptions have been countenanced concerning mortality tables,[104] the British Pharmacopoeia,[105] and Stock Exchange Journals.[106] Justice Gowans considered whether the following evidence of a witness was admissible to prove the facts and matters stated:
(1) that he had been consulted by Evans Medical (Australia) Pty Ltd as to the wording of the labels on the product Evacillin which it manufactured, and on those labels and in the literature accompanying it the product was referred to as a form of procaine penicillin the term ‘procaine’ identifying the kind of salt used with the penicillin and the duration of its effect;
(2) that in a commonly used guide required by law to be kept in every pharmacy and entitled ‘Prescription Proprietaries Guide’ published by the Australasian Pharmaceutical Publishing Co Ltd, ‘Evacillin’ is referred to as being a form of procaine penicillin.
His Honour ruled that the above principles applied and that the evidence was admissible:
They amount to a statement by a witness shown or assumed to be conversant with the industry, trade or calling of retail pharmacy that sources commonly relied upon in retail pharmacy identify ‘Evacillin’ as a form of penicillin. It is not a sufficient answer to say that this amounts to hearsay from the manufacturers or from the publishers of the Guide. There is a further element stated explicitly or implicitly that it is information commonly relied upon in the calling of pharmacy. It is doubtful, how far the exceptions articulated in Borowski v Quayle extend.[107]
There is legislation in some jurisdictions which introduces other approaches:
• Family Court Counsellors and Officers. There is an important degree of flexibility in Family Court proceedings but also an element of controversy about the way in which the Court should deal with the evidence that is provided by counsellors and welfare officers.[108]
The Family Law Act provides that:
Where, in proceedings for a decree of dissolution of marriage, the court is in doubt whether the arrangements made for the welfare of a child of the marriage are proper in all the circumstances, the court may adjourn the proceedings until a report has been obtained from a court counsellor or welfare officer regarding those arrangements.[109]
By reg 117 of the Family Law Regulations, the Family Court has a discretion to receive in evidence a report obtained under s 62(4) and s 63(2) of the Family Law Act. Although the court has a discretion both as to the cross-examination of the welfare officer or counsellor and the reception of his report into evidence, no guidance is given on the application of the law on hearsay and opinion evidence. The problem of the extent to which the rules of evidence in these areas apply, therefore, has arisen. The approach of the Family Court has been to relax the strict rules of evidence and to allow technical infringements to affect not the admissibility of material but only the weight to be attached to the evidence.[110] The Full Court of the Family Court of Australia In the Marriage of Foster and Foster said:
The discretion of the court to admit a welfare report into evidence is without limitation and we are of the view that such reports can be admitted even if they contain hearsay or statements of opinion. The question is not one of the admissibility of the report, but the weight which is to be given to the material which it contains.[111]
At the same time, however, there have been important dicta to the effect that the scope of the report ordered by the judge must be carefully circumscribed so that the reporter, the counsellor or welfare officer is not asked to investigate fields of inquiry incompatible with the rules of evidence.[112] The Commission has also been advised that judges vary considerably in their application of the unfettered discretion.
• The Cocos (Keeling) Islands/Christmas Island. The effect of the Singapore Ordinance provisions is that evidence by an expert as to the grounds of his opinion is admissible for all relevant purposes, including a hearsay purpose.[113] In addition a specific hearsay exception is created for ‘treatises’:
60(2) The opinions of experts expressed in any treatise commonly offered for sale and the grounds on which such opinions are held may be proved by the production of such treatise if the author is dead or cannot be found or has become incapable of giving evidence or cannot be called as a witness without an amount of delay or expense which the court regards as unreasonable.
92. Introduction. There is a vast body of legislation in the State and Territories enacting exceptions to the hearsay rule.[114] It has built up over many years. It has tended to be enacted in response to difficulties that have emerged in trials—principally in the admission of commercial records. It is proposed to consider the legislation in the following areas:
• oral hearsay;
• written hearsay—civil proceedings; criminal proceedings.
93. Legislation affecting Oral Hearsay. There has been a very limited attempt in Australia to relax the rule against hearsay as it applies to oral evidence in civil and criminal proceedings. Reference should be made to the legislation modifying common law exceptions—res gestae and dying declarations.[115] In no jurisdiction is there a general provision dealing with the admissibility of oral hearsay in either civil or criminal proceedings.
94. Legislation Affecting Written Hearsay. The legislation referred to in the previous paragraph also generally applies to written statements. The States and Territories, however, appear to have concentrated their efforts in the area of written hearsay. This includes legislation dealing with statements in documents (generally or of specific items such as transportation documents, statements of wages and telegrams), records, books of account, banker’s books, computer records, and a miscellany of public registers. Considerable inroads have been made into the rule by this legislation. Generally, it is found that the legislature has seen fit to permit second-hand written hearsay to be received subject to specified but differing safeguards where it is contained in some form of record and where the supplier of information or the maker is called or is unavailable. In some instances, it is enough that the document is part of the records of a business and made in the course of that business. These provisions apply in both civil and criminal proceedings. First-hand written hearsay is generally admissible in civil proceedings if the maker of the statement is unavailable or, if available, is called. It is only in Tasmania and the ACT that similar provisions apply in criminal proceedings. There are significant differences in the scope and conditions of admissibility, safeguards and the courts’ powers to exclude such evidence. It is proposed to summarise the main features of the legislation:
• Civil Proceedings. First and second-hand written hearsay is generally admissible in one or more of the ways set out below. The legislation can be divided into two categories—that where the maker of the document or supplier of the information must be called unless excused and that where this is not a requirement.
(a) Civil Proceedings—the Maker or Supplier to be Called unless Excused. The broadest provision is arguably that in South Australia.[116] The section allows any apparently genuine document purporting to contain a statement of fact to be admissible in evidence. As a result of a discretion contained in the section, however, the provision will be limited in its operation to documents containing statements of which the person who made the statement or at whose direction it was prepared had personal knowledge. It also shall not be admitted where the court is of the opinion that the person by whom or at whose direction the document was prepared should be called or the prejudicial effect outweighs the probative value, or it will be contrary to the interest of justice.
In addition, in South Australia and elsewhere,[117] there are provisions (based on or developed from the 1938 English legislation) which enable the admission of statements tending to establish a fact, contained in:
• a document made by a person with personal knowledge of the matters stated (first-hand hearsay);
• records—‘continuous records’ or records of ‘a business’ (which expression generally includes public administration)—which contain statements made by a person without personal knowledge of the matters recorded (second-hand hearsay);
as evidence of the fact. In some instances the legislation expressly allows statements of opinion in documents to be tendered as evidence of the opinion.[118] Arguably this result flows in the other legislation because it relates to ‘statements—tending to establish that fact’ not the statements of that fact. In the other legislation statement is usually defined to include statements of fact.[119] It is open to argument, whether such legislation does not in terms exclude a statement of opinion where the opinion is expressed by a non-expert.[120] The legislation requires ‘direct oral evidence of the fact to be admissible’. It is not expressly limited to direct oral evidence of the maker of the statement.[121] Further in some States and Territories[122] statements in records are admissible where the information has passed through several hands. Generally there is a requirement that the maker of the document or the supplier of the information contained in the document be called to give evidence unless unavailable. The approach to the issue of unavailability varies somewhat. Generally speaking it would be sufficient to establish one or other of the following matters—the person is dead, the person cannot be found, the person is unfit to give evidence, the person is outside the jurisdiction and it is not reasonably practicable to secure his attendance, attendance is not required by the other side (Victoria only), producing the person would cause undue delay or expense (except Western Australia), the supplier cannot be expected to remember.[123]
Some conditions and restrictions significantly limit some of the legislation. They vary:
― First-hand hearsay—the facts be fresh in the mind of the person with personal knowledge who made the statement in the document.[124]
― Second hand hearsay—the person making the entries on the record has a duty to do so.[125]
The powers conferred on the court to exclude the evidence vary; for example:
― a power to exclude statements if they were made by a ‘person interested;[126]
― discretions to exclude such evidence if it would not be in the interests of justice to admit it;[127]
―a notice requirement imposed on the party seeking to rely upon the legislation;[128]
―a discretion to the effect that such evidence may be excluded if its value is outweighed by considerations of time, or the risk of confusion or prejudice or misleading a jury;[129]
―a power in the judge to exclude evidence where he believes the maker of the statement should be cross examined.[130]
(b) Civil Proceedings—the Maker or Supplier is Not Required to Give Evidence. Another type of legislation relates specifically to business records, and to financial records such as books of account and bankers’ books. Under this legislation the maker of the statement or the supplier of the information do not generally have to be called to give evidence.
(i) Business Records. The shortest and, arguably, the widest provisions are those to be found in South Australia and Tasmania.[131] The South Australian legislation provides that an apparently genuine document purporting to be a business record shall be admissible in evidence without proof. It does contain a provision, however, giving a discretion to the court to exclude the document if the court is of the opinion that the party by whom or at whose discretion the document was prepared should be called or that the evidentiary weight of the document is outweighed by the prejudicial effect of it, or it would be contrary to the interests of justice to admit the document. There is no requirement in the section of personal knowledge on the part of any person. It differs from the other legislation, however, in that there is nothing that has to be proved unless the court directs that further proof is required. The Tasmanian provision, derived from United States legislation enables business records to be admitted if it appears to the court that the record was made in the regular course of business, was reasonably contemporaneous with the matters recorded, and the source of information, and method and time of preparation of the record was such as to indicate trustworthiness. The Tasmanian provision expressly allows the judge to inform himself in any way he thinks fit and states that he is not obliged to receive formal evidence. There is authority that statements of opinion are not admissible.[132]
The other general business records provisions are to be found in Commonwealth, New South Wales and Tasmanian legislation.[133] Business is widely defined and includes the administration of the Commonwealth, the States and Territories. The conditions to be satisfied are that the document forms part of the records of the business, the statement made in it was made in the course of or for the purposes of the business. Statements of opinion are admissible.[134] A limiting factor in this legislation, despite the range of material to which it relates, is the requirement that a statement made by a person be made by a qualified person or that it reproduce or be derived from information from a qualified person. A qualified person is the owner of the business or servant or agent of the business or someone associated with the business. The person must also possess appropriate expertise if the statement is of expert opinion or have, or be reasonably supposed to have personal knowledge of the facts stated. There is discretion to exclude the evidence on the grounds of insufficient weight, unfairness, utility outweighed by probability that its admission will unduly prolong the proceedings or on the ground that the evidence is likely to mislead.
(ii) Financial Records. There are provisions dealing with the financial records of banks, and, in Queensland and Victoria, with the financial records of businesses, including goods and stock records.[135] Evidence is required that the book was an ordinary book of account of the business and that the entry was made in the ordinary course of the business. Where a copy of an entry is tendered, it must be proved that it is a correct copy. The person required to give such evidence is described as a ‘responsible person’ and the term is not defined. There is no requirement that the information recorded come from a person connected with the business. There is no statutory discretion to exclude the evidence—although common law discretions may apply.[136] Thus while this legislation is more limited in its subject matter the rules relating to the admissibility of books of account and bankers books are far more relaxed. The legislation is South Australia relating to the records of banks was recently amended and it now differs from that in other states.[137]
It should be emphasised that evidence coming within these provisions can be tendered without calling the person who made the record or who supplied the information. All that is required initially is that someone be called who can give the general evidence identifying the record as one of the business and that it was made in the ordinary course of the business. If an attack is made on the accuracy of the record by the other party, the party tendering the record may be forced for tactical reasons to call persons involved in making the entries but is not obliged to call them before the evidence is received. In Victoria the entries are ‘prima facie’ evidence.
(iii) Computer Records and Output. The hearsay rule has been modified in most jurisdictions in an attempt to cope with the new technology of computers. Two different approaches have been taken in the legislation. One has been to enact legislation which in terms specifically deals with computer records and computer produced evidence. The other approach has been to include computer records and computer produced evidence within the general legislation regarding business records. The former approach has been taken in Queensland, Victoria, South Australia, and the ACT. The provisions differ.[138]
In the ACT, the legislation applies only in civil proceedings. Computer is defined as a device for storing or processing information (the ‘tiling cabinet’ definition) except in South Australia where it is defined principally by reference to the use of mathematical and logical rules in recording and processing data. Only the latter legislation defines computer output and data. As to conditions of admissibility. The South Australian provisions[139] are the most detailed. They require the court to be satisfied that:
― the computer was correctly programmed (elsewhere—no provision);
― the data was systematically prepared on the basis of information normally acceptable in court as evidence (elsewhere—no provision);
― no changes were made to the mechanism or process that might adversely affect the accuracy of the output (elsewhere—no provision);
― there is no reasonable cause to believe the input was adversely affected by any improper process or procedure or inadequate safeguard (elsewhere—no provision);
― the computer was regularly used to produce output of the kind tendered (elsewhere—the output produced during a period over which the computer was used to store and process information for purposes of activities regularly carried on in the period);
― there is no reasonable cause to suspect any departure from the system, any error in preparation of the data or malfunction between input and output that might reasonably be expected to affect the accuracy of the output. Elsewhere—the legislation requires that the information be supplied regularly and in the ordinary course of the operator’s activities and that at the material times it was operating properly or, if not, the accuracy of the output and its production was not affected.
― As to proof of satisfaction of the conditions the legislation, except in the ACT, provides for production of a certificate. No authenticating evidence is required provided certain conditions (which differ) are satisfied. Some differences are worth noting—the South Australian legislation gives the court power to require oral evidence; it also requires the certifier to have expertise in computers.[140]
― A discretion to exclude is included in the legislation (except in South Australia)—if ‘inexpedient in the interests of justice’ (Victoria and Queensland) or if there is reason to doubt the accuracy or authenticity of the output (ACT).[141]
― Unlike the next approach, the legislation does not require personal knowledge on the part of the maker of the statement or the supplier of the information.
― The other approach, followed in New South Wales, Tasmanian and Commonwealth legislation, is to treat the computer records in the same way as business records generally and to require the proofs referred to above—including the limiting requirement that the input be traceable to a ‘qualified person’.[142] The legislation covers computer output which contains information derived from one or more devices. As to the reliability of the computer and its operations and like matters, these are treated as going to weight and not admissibility. This approach, therefore, raises less formalities in the path of a party seeking to tender in evidence the statements contained in computer records. There is, however, the discretion to exclude the evidence of the computer records.[143] In the Tasmanian, New South Wales and Commonwealth legislation there is also a provision which prevents computer evidence admitted under the sections to be used as corroboration of the evidence given by the maker of the statement or the person who supplied the information. Such a provision is to be found also in Queensland and Victorian computer legislation.[144]
― Finally, the legislation of Western Australia, Victoria and Queensland relating to statements in documents forming part of a record, the ‘banker’s books’ and ‘books of account’ provisions of Queensland, New South Wales, and Victoria, and the Tasmanian and South Australian business records section may also apply to some computer records.[145]
(c) Civil Proceedings—Other Documentary Hearsay Evidence. The provisions referred to above in ... relating to oral hearsay also relate to statements in written form. In addition there are provisions which do not exist in all States and Territories. These deal with transportation documents, statements of wages, the recording of evidence, dying depositions, and proof of telegraphic messages. They also make inroads into the hearsay rule. There are further provisions which relate to documents of a public nature which would probably come within the common law public document exception. These relate to proof of births, deaths, and marriages, proof of registers, proof of registers of vessels and ships articles, proof of registers of newspaper proprietors, and the proof of incorporation of companies.[146]
• Criminal Proceedings. The legislation has taken a far more cautious approach to the admissibility of written hearsay in criminal proceedings:
(a) Criminal Proceedings—the Maker or Supplier to be called unless Excused. With the exception of Tasmania and the Australian Capital Territory, statements in documents made by a person with personal knowledge of the matters stated are not admissible in criminal proceedings under the sections which deal generally with statements in documents. In Tasmania and the ACT, however, such statements are admissible in criminal proceedings where the maker is called.[147] These provisions also allow the tendering of statements of opinion where the person stating the opinion is called and they also allow such statements to be tendered when the maker or supplier of the information is not available. In the latter situation, however, it is provided in the Tasmanian legislation that the statement cannot be received in evidence if the adverse party objects to the tender or is not represented by counsel. The Tasmanian and ACT provisions are limited to the case where the statements contained in the document were made when the facts were fresh in the memory of the maker of the statement. There are discretions to exclude[148] which differ. In the ACT, the judge may exclude such evidence if he has reason to doubt its reliability or it would be unfair to the accused to admit it. In Tasmania, there is the general discretion to exclude if the value of the evidence is outweighed by considerations of time and the risk at prejudice or confusion.
(b) Criminal Trials—The Maker or Supplier is Not Required to be Called
(i) Statements in Documents forming Part of a Record. Legislation in the ACT, Queensland, Victoria, and Western Australia[149] permits statements in documents forming part of a record to be tendered in criminal proceedings. The legislation is similar to that which enables such evidence to be given in civil proceedings. The legislation differs, however, from that applicable in civil proceedings in that it applies only where the maker of the statement in the document or the supplier of information is unavailable. By contrast, the legislation applying in civil proceedings requires that the maker or supplier be called unless one of the grounds of excuse set out in the legislation is made out. In the Victorian and ACT legislation[150] statements are inadmissible if made in connection with a criminal proceeding or with an investigation leading up to a criminal proceeding. In Victoria, the provision excluding statements made by persons interested also applies. There are discretions given to courts to exclude evidence otherwise admissible under the legislation—having regard to the interests of justice[151] and also the discretion in the ACT referred to above.
(ii) Business Records. The New South Wales, Tasmanian, South Australian, and the Commonwealth business records legislation renders records of a business admissible in criminal proceedings. The Commonwealth, New South Wales and Tasmanian legislation[152] however, requires that the persons concerned in the making of the statement must be called to give evidence in criminal proceedings if the opposing party so requires and it is further provided that a party may be excused from complying with that requirement if the persons concerned in the making of the statement are unavailable. If the request is not made, however, it is not necessary to call the witness. The Tasmanian, Commonwealth, and New South Wales legislation contains provisions which render inadmissible statements made in connection with a criminal proceeding or with an investigation relating to or leading up to the criminal proceeding.[153] The Commonwealth legislation preserves the common law discretion to exclude illegally obtained evidence or evidence that would operate unfairly against the accused. The New South Wales legislation preserves the latter discretion. The Tasmanian legislation preserves the common law discretions without being specific.[154]
(iii) Financial Records. The books of account and banker’s books legislation applies in criminal proceedings. There is generally no obligation to call (or power to direct the calling of) the persons involved in making the statements in the records.
(iv) Computer Produced Evidence. As to computer records and output, the legislation which specifically relates to computer evidence does not distinguish between civil and criminal proceedings except in the ACT where the provisions apply only to civil proceedings. Provisions relevant to criminal proceedings, however, are Queensland and Victorian provisions which provide that evidence admitted under the sections cannot be used to corroborate the evidence of a person who made the statement or supplied the information. In addition, the discretions referred to above apply.
The New South Wales and Commonwealth approach makes the distinction between civil and criminal proceedings by providing that the persons concerned in the making of the computer records should be called as a witness if the opposing party so requires unless such persons are not available. Reference has been made above to other provisions.
(c) Criminal Trial—Other Documentary Hearsay Provisions. The provisions referred to above apply to criminal proceedings with the following qualifications:
(i) Statements of Wages. The provisions are contained in the Evidence Acts of the ACT, New South Wales and the Northern Territory. Only in the ACT does the legislation apply to criminal proceedings.[155]
(ii) Telegraphic Messages. The legislation exists in South Australia, Queensland, Western Australia, Northern Territory, Tasmania, and the Christmas and Cocos (Keeling) Islands. Only the legislation of the latter Islands and South Australia applies in criminal proceedings.[156]
[1] See eg, discussion and definitions of Stephen, Phipson, Cowen and Carter, and Uniform Rules in JA Gobbo, D Byrne & JD Heydon, Cross on Evidence, 2nd Aust edn, Butterworths, Sydney, 1979, para 17.15ff; PK Waight & CR Williams, Cases and Materials on Evidence, Law Book Co, Sydney, 1980, 588ff; MI Aronson, NS Reaburn & MS Weinberg, Litigation: Evidence & Procedure, 3rd edn, Butterworths, Sydney, 1982, 712ff; RW Baker, The Hearsay Rule, Pitman & Sons, London, 1950, 1; Subramaniam v Public Prosecutor [1956] UKPC 21; [1956] 1 WLR 965.
[2] Cross on Evidence, para 17.2. Subsequently in para 17.15 there is added ‘assertions in documents produced to the court when no witness is testifying’.
[3] ibid. In R Cross, Evidence, 5th English edn, Butterworths, London, 1979 at page 6 a different definition was used—‘a statement other than one made by a person while giving oral evidence in the proceedings is ‘inadmissible as evidence of any fact stated’. This includes prior statements of the witness—as to which see below n 67 and accompanying text.
[4] [1837] EngR 853; (1837) 7 Ad & E 313; 112 ER 488.
[5] [1952] AC 480.
[6] [1951] SASR 244 and see Gibson J in Marshall v Watt [1953] TASStRp 2; [1953] Tas SR 1.
[7] Fingleton v Lowen (1979) 20 SASR 312, 316.
[8] McGregor v Stokes [1952] VicLawRp 13; [1952] VLR 347.
[9] [1971] UKPC 23; [1972] AC 378.
[11] id, 294.
[12] [1956] HCA 25; (1956) 94 CLR 470, 487 (Kitto J), 482 (Williams, Webb and Taylor JJ), and 476 (Dixon CJ).
[13] R v Ireland [1970] HCA 21; (1970) 126 CLR 321.
[14] Manchester Brewery Co Ltd v Coombes (1900) 82 LT 347.
[15] [1979] 2 NSWLR 206, 220-33.
[16] id, 233.
[17] id, 230, 232.
[18] Wright v Doe de Tatham [1837] EngR 853; (1837) 7 Ad & E 313; 112 ER 488.
[19] New South Wales Law Reform Commission, Report on the Rule Against Hearsay, Govt Printer, Sydney, 1978, (NSWLRC 29) para 1.4; Cross on Evidence, para 17.7ff; R Rucker, ‘The Twilight Zone of Hearsay’ (1956) 9 Vanderbilt Law Review 453; PJ Brysh, ‘Comments: Abolish the Rule Against Hearsay’ (1974) 35 University of’ Pittsburgh Law Review 609; EM Morgan, ‘Hearsay and Non-Hearsay’ (1934-35) 48 Harvard Law Review 1138.
[20] [1940] HCA 43; (1940) 64 CLR 282.
[22] [1963] IQB 857.
[24] NSWLRC 29, para 4.8.2; R v de Berenger (1814) Gurney 188; Robinson v Randfontein Estates Gold Mining Co Ltd 1924 AD 151; R v de Villiers 1944 AD 493, 502.
[25] For the former proposition—Smith v Blake (1867) LR 2 QB 326; Ward v HS Pitt & Co [1913] UKLawRpKQB 30; [1913] 2 KB 130, 137; Re Gardner’s Will Trusts [1936] 3 All ER 938. For the latter proposition—Taylor v Witham [1876] UKLawRpCh 220; (1876) 3 Ch D 605, 607; Re Adams [1922] P 240, 242; Coward v Motor Insurers Bureau [1962] 1 All ER 531; Leneham v Queensland Trustees Ltd [1965] Qd R 559. 573.
[26] Baker, 73-5; Cross on Evidence, para 18.14.
[27] R v O’Mealley [1952] VicLawRp 24; [1952] VLR 499 suggests they are not, despite the traditional view that they are: Stapylton v Clough [1853] EngR 991; (1853) 2 E & B 933; 118 ER 1016.
[28] The Henry Coxon [1878] UKLawRpPro 30; [1878] 3 PD 156 seems to be authority for this view, but note the different approach in Taylor v Witham [1876] UKLawRpCh 220; (1876) 3 Ch D 605, 607 in the area of declarations against interest.
[29] Almost certainly not: Chambers v Bernasconi [1834] EngR 1; (1843) 1 Cr M & R 347, 149 ER 1114; West Australian Trustee Executor and Agency Co v O’Connor [1955] WALawRp 5; (1955) 57 WALR 25, 38; but see Maw v Dickey (1974) 6 OR (2d) 146.
[30] R v Savage [1970] TASStRp 11; [1970] Tas SR 137; R v Kiparli-Ikarum [1967-8] PNGLR 119; R v Peagui-Ambimp (1973) 47 AU 93 (PNG SC); R v Kuru-Waru (1900) 10 QLJ 139; R v Madobi (1963) 6 FLR 1 (PNG SC); R v Wadderwarri (1960) 34 AU 195.
[31] R v Hope [1909] ArgusLawRp 9; [1909] VLR 149, 164 (Cussen J), 158 (Madden CJ); R v Peel [1860] EngR 165; [1860] 2 F & F 21, 175 ER 941; R v Rogers [1950] SAStRp 15; [1950] SASR 102, 108-9.
[32] Crimes Act 1900 (NSW) s 408; Evidence Act 1910 (Tas) s 81K; Evidence Ordinance 1971 (ACT) s 65; Evidence Ordinance 1955 (Singapore) as applied to the Christmas and Cocos (Keeling) Islands s 32.
[33] R v Halpin [1975] QB 907.
[34] R v Sealby [1965] 1 All ER 701; Leneham v Queensland Trustees Ltd [1965] Qd R 559; Gaggin v Moss [1983] 2 Qd R 486.
[35] Adelaide Chemical and Fertiliser Co Ltd v Carlyle [1940] HCA 44; (1940) 64 CLR 514, 530 (Dixon J).
[36] Teper v R [1952] AC 480 (identification); Ratten v R [1971] UKPC 23; [1972] AC 378 (to prove a woman was in fear). But cf Sparks v R [1964] AC 964, 979-80; R v Dodd [1960] WAR 42; R v McIntosh [1968] Qd R 570; R v Lawless [1974] VicRp 49; [1974] VR 398; R v Hissey (1973) 6 SASR 280; Millers Great Northern Hotel Pty Ltd v Fingleton (1974) 7 SASR 35; Vocisano v Vocisano (No 2) (1973) 1 ACTR 142. See also Burhop [1979] FamCA 32; (1979) FLC 90-672 and the Federal Court decision in Kruse v Lindner (1978) 19 ALR 85, 92.
[37] It is sometimes suggested that such evidence is original evidence and not hearsay: Hughes v National Trustees Executors and Agency Co of Australasia [1979] HCA 2; (1979) 53 ALJR 249; Peipman v Turner (1961) 78 WN (NSW) 362: Re Paulin [1950] VicLawRp 37; [1950] VLR 462, 471, 473.
[38] R Cross, ‘The Scope of the Rule Against Hearsay’ (1956) 72 LQ Rev, 91, 96-100; NSWLRC, 29 para 1.2.28.
[39] [1971] UKPC 23; [1972] AC 378.
[40] Vocisano v Vocisano (1974) 48 ALJR 157, 159; Adelaide Chemical and Fertilizer Co Ltd v Carlyle [1940] HCA 44; (1940) 64 CLR 514, 532 (Dixon J).
[41] Adelaide Chemical and Fertilizer Co Ltd v Carlyle [1940] HCA 44; (1940) 64 CLR 514, 524 (Starke J); Poriotis v Australian Iron and Steel Ltd [1963] SR (NSW) 991, 994; Match v Country and Suburban Stock Feeds [1966] 2 NSWR 708, 771.
[42] Adelaide Chemical and Fertilizer Co Ltd v Carlyle [1940] HCA 44; (1940) 64 CLR 514, 524 (Starke J); Poriotis v Australian Iron and Steel Ltd [1963] SR (NSW) 991, 994.
[43] Vocisano v Vocisano (1974) 48 ALJR 157, 159; Adelaide Chemical and Fertilizer Co Ltd v Carlyle [1940] HCA 44; (1940) 64 CLR 514, 524 (Starke J); Teper v R [1952] AC 480, 487; R v Ratten [1971] VicRp 10; [1971] VR 87; Mutch v Country & Suburban Stock Feeds [1966] 2 NSWR 708, 715.
[44] Teper v R [1952] AC 480, 487; Sparks v R [1964] AC 964, 981.
[45] Vocisano v Vocisano (1974) 48 ALJR 157, 159; Adelaide Chemical and Fertiliser Co Ltd v Carlyle [1940] HCA 44; (1940) 64 CLR 514, 524 (Starke J); Brown v R [1913] HCA 70; (1913) 17 CLR 570, 581 (Barton ACJ), 597 (Isaacs and Powers JJ).
[46] Brown v R [1913] HCA 70; (1913) 17 CLR 570, 597 (Isaacs and Powers JJ); R v Ratten [1971] VicRp 10; [1971] VR 87.
[47] Adelaide Chemical and Fertiliser Co Ltd v Carlyle [1940] HCA 44; (1940) 64 CLR 514, 524 (Starke J); Brown v R [1913] HCA 70; (1913) 17 CLR 570, 581 (Barton ACJ); Heron v Baird (1921) 23 WALK 47, 51.
[48] [1971] UKPC 23; [1972] AC 378, 391.
[50] McGregor v Stokes [1952] VicLawRp 13; [1952] VLR 347, 351 (Herring CJ); Brown v R [1913] HCA 70; (1913) 17 CLR 570, 581; Davidson v Quirke (1923) 42 NZLR 552, 556; Marshall v Watt [1953] TASStRp 2; [1953] Tas SR 1, 19.
[51] McGregor v Stokes [1952] VicLawRp 13; [1952] VLR 347, 351. Not required by Barton ACJ in Brown v R [1913] HCA 70; (1913) 17 CLR 570, nor apparently by the High Court in Willey v Synan [1937] HCA 85; (1937) 57 CLR 200, 209.
[52] McGregor v Stokes [1952] VicLawRp 13; [1952] VLR 347, 352; Davidson v Quirke (1923) 42 NZLR 552, 556; Marshall v Watt [1953] TASStRp 2; [1953] Tas SR 1, 20; Brown v R [1913] HCA 70; (1913) 17 CLR 570, 581; Willey v Synan [1937] HCA 85; (1937) 57 CLR 200, 209.
[53] Evidence Act 1910 (Tas) s 81F.
[54] Adelaide Chemical and Fertiliser Co Ltd v Carlyle [1940] HCA 44; (1940) 64 CLR 514, 530; Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642, 647-8; Tickle v Tickle [1968] 2 All ER 154, 158.
[55] Lynch v Lynch (1966) 84 WN (Pt 1) (NSW) 315.
[56] Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642, 647; Nalder v Dutch-Australian Contracting Co Pty Ltd [1960] VicRp 70; [1960] VR 458; Evans v Hartigan [1941] NSWStRp 31; (1941) 41 SR (NSW) 179, 183.
[57] Cross on Evidence, para 2.23. See also M Weinberg, ‘The Admissibility of Out-of-Court Identification Evidence in Criminal Cases’ (1980) 12 MUL Rev 543; DF Libling, ‘Evidence of Past Identification’ [1977] Crim L Rev 268; Scottish Law Commission, Memorandum No 46, Law of Evidence, Edinburgh, 1980 T 25; L Re, Evidence Research Paper No 12, Identification Evidence, Australian Law Reform Commission, Sydney, 1983.
[58] Alexander v R [1981] HCA 17; (1981) 34 ALR 289.
[59] id, 313. Approving R v Osborne [1973] 1 QB 678.
[60] id, 317.
[61] ibid. This seems to be the qualification referred to in the earlier passage.
[62] id, 295-6 (Gibbs CJ), 319 (Murphy J). The issue was regarded as unresolved in R v Goodall [1982] VicRp 3; [1982] VR 33, 40-1 (McInerney J).
[63] ibid. Gibbs CJ also mentioned the situations where the evidence is admissible under an exception to the hearsay rule, where the accused has adopted as true the statements made in identifying him, or as part of the res gestae.
[64] Alexander v R [1981] HCA 17; (1981) 34 ALR 289, 295.
[65] id, 297-8 (Gibbs CJ), 319 (Murphy J).
[66] id, 295-6 (Gibbs CJ), 318 (Murphy J).
[67] Cross on Evidence, para 18.141 on the grounds that it was given on oath and was subject to cross-examination. Note: R v Thompson [1982] 2 WLR 603 (witness was ill).
[68] Evidence Ordinance 1955 (Singapore) as applied to the Christmas and Cocos (Keeling) Islands, s 33.
[69] Evidence Ordinance 1971 (ACT) s 73; Crimes Act 1900 (NSW) s 409, Justices Act (NT) s 152; Justices Act 1886 (Qld) s 111; Justices Act 1921 (SA) s 152; Evidence Act 1910 (Tas) s 134; Magistrates (Summary Proceedings) Act 1975 (Vic) s 163; Evidence Act 1906 (WA) s 107.
[70] Cross on Evidence, para 10.52; R v Askew [1981] Crim L Rev 398.
[71] NSWLRC 29, para 1.2.37; Sainsbury v Allsopp [1899] VicLawRp 28; (1899) 24 VLR 725; Birkett v AF Little Pty Ltd [1962] NSWR 492; R v Thynne [1977] VicRp 10; [1977] VR 98.
[72] Cross on Evidence, para 10.51ff.
[73] These sections relate to:
• prior inconsistent statements put to hostile witnesses;
• cross-examination on prior inconsistent statements;
• proof of prior inconsistent statements denied in cross-examination.
[74] Evidence Act 1910 (Tas) s 81L.
[75] Evidence Act 1977 (Qld) s 94(1)(b).
[76] Evidence Act 1977 (Qld) s 101(2), (3).
[77] Cross on Evidence, para 10.25.
[78] Cross (5th edn) 6, 236 where the definition of hearsay adopted in that edition would prohibit the reception of evidence as evidence of the facts stated, whether that evidence was given by the person who made the statement or by someone who heard it.
[79] Transport and General Insurance Co Ltd v Edmondson [1961] HCA 86; (1961) 106 CLR 23; Cross on Evidence, para 10.33; Wojcic v Incorporated Nominal Defendant (19691 VR 323; R v Clune (No 1) [1975] VicRp 72; [1975] VR 723; R v Lawless [1974] VicRp 49; [1974] VR 398.
[80] Evidence Act 1977 (Qld) s 101(1)(b); Evidence Act 1910 (Tas) s 81L.
[81] Evidence Ordinance 1955 (Singapore) as applied to the Christmas and Cocos (Keeling) Islands.
[82] [1973] HCA 30; (1973) 129 CLR 460, 472.
[83] R v Wink [1835] EngR 220; (1834) 6 C & P 397, 172 ER 1293; Berry v Carpenter (1898) 78 LT 688.
[84] De B v De B [1950] VicLawRp 20; [1950] VLR 242; R v Saunders [1965] Qd R 409.
[85] De B v De B [1950] VicLawRp 20; [1950] VLR 242.
[86] (1977) 31 FLR 171.
[87] id, 184.
[88] RM Eggleston, ‘The Relationship Between Relevance and Admissibility in the Law of Evidence’ in H Glass (ed) Seminars on Evidence, Law Book Co, Sydney, 1970, 53, 70; R Eggleston, Evidence, Proof and Probability, 2nd edn, Weidenfeld & Nicolson, London, 1983, 147-8.
[89] [1916] NSWStRp 52; (1916) 16 SR (NSW) 348, 359 (Sly J).
[90] English Exporters (London) Ltd v Eldonwall Ltd [1973] 1 Ch 415, 422.
[91] Priest v Priest (1963) 9 FLR 384, 409 (Gowans J).
[92] (1969) 16 FLR 211, 216; Votskos v Votskos [1967] VicRp 62; (1967) 10 FLR 219, 221ff.
[93] Porter v Sinnott (1975) 13 SASR 500, 504.
[94] [1961] HCA 65; (1961) 108 CLR 642.
[95] R Pattenden, ‘Expert Opinion Evidence Based On Hearsay’ [1982] Crim L Rev 85, 88.
[96] [1977] Qd R 213, 217.
[98] id, 420; applied in R v Abadom [1983] 1 WLR 126, 131.
[99] [1966] VicRp 54; [1966] VR 382, 386-7.
[100] JH Chadbourn (ed) Wigmore on Evidence, Little, Brown & Co, Boston, 1979, vol 2, para 665b.
[101] Borowski v Quayle [1966] VicRp 54; [1966] VR 382, 386; cited with approval in Reid v Kerr [1974] 9 SASR 367, 370. See also H v Schering Chemicals Ltd [1983] 1 All ER 849.
[102] JH Chadbourn (ed) Wigmore on Evidence, Little, Brown & Co, Boston, 1976, vol 6, para 1702.
[103] Borowski v Quayle [1966] VicRp 54; [1966] VR 382, 387.
[104] Rowley v London and North Western Railway Co [1852] EngR 1037; (1873) LR 8 Exch 221.
[105] Dickins v Randerson [1901] 1 KB 437.
[106] R v Perryman (1907) 147 CCC Sess Pap 1099 (Lawrence J); see also comments concerning histories, maps, dictionaries, grammars, and almanacs in JH Buzzard, R May & MN Howard, Phipson on Evidence, 12th edn, Sweet & Maxwell, London, 1976, para 1152-7.
[107] Borowski v Quayle [1966] VicRp 54; [1966] VR 382, 387 (Gowan J).
[108] cf Sing v Muir (1969) 16 FLR 211, 216 and Porter v Sinnott (1975) 13 SASR 500, 504.
[109] Family Law Act 1975 (Cth) s 63(2).
[110] Hogue and Haines (1977) FLC 90-259, 76, 384; Foster and Foster [1977] FamCA 71; (1977) FLC 90-281, 76, 508; BBT and JMT [1979] FamCA 82; (1980) FLC 90-809, 75, 094.
[111] [1977] FamCA 71; (1977) FLC 90-281, 76, 514.
[112] Hogue and Haines (1977) FLC 90-259, 76, 385-6 (Wood J); Wood J’s decisions have been criticised in CCH Australia Ltd, Australian Family Law and Practice Reporter (1982) vol 1, para 24-006 and the comments thereon by F Bates, The Australian Social Worker and the Law, 25-7; F Bates, ‘The Social Worker as Expert Witness in Modern Australian Law’ (1982) 56 ALJ 330, 332-3.
[113] s 51, 59, 60, Evidence Ordinance 1955 (Singapore) as applied to the Christmas and Cocos (Keeling) Islands.
[114] A Sowden, Evidence Research Paper No 1, Comparison of Evidence Legislation Applying in Federal Courts and Courts of the Territories, Australian Law Reform Commission, Sydney, 1981, ch 9.
[115] ibid.
[116] Evidence Act 1929 (SA) s 456.
[117] Evidence Act 1898 (NSW) s 14B-C; Evidence Act 1977 (Qld) s 92, 94; Evidence Act 1929 (SA) s 34c-d; Evidence Act 1910 (Tas) s 81A-D; Evidence Act 1958 (Vic) s 55(1), (4)-(9), 55A; Evidence Act 1906 (WA) s 79B-D; Evidence Ordinance 1971 (ACT) s 28-30; Evidence Act (NT) s 26D, F.
[118] Evidence Act 1906 (WA) s 79B(b); Evidence Act 1910 (Tas) s 8113, D; Evidence Ordinance 1971 (ACT) s 28-30.
[119] Cross on Evidence, para 20.10; Warner v The Women’s Hospital [1954] VicLawRp 14; [1954] VLR 410, 415; Leneham v Queensland Trustees Ltd [1965] Qd R 559; Morley v National Insurance Co [1967] VicRp 61; [1967] VR 566.
[120] ibid.
[121] English authority to the contrary is Doss v Masih [1968] 2 All ER 226.
[122] Evidence Act 1977 (Qld) s 92(1)(b); Evidence Act 1958 (Vic) s 55(1)(b); Evidence Act 1906 (WA) s 79C(1)(a); Evidence Ordinance 1971 (ACT) s 29(2).
[123] Evidence Act 1977 (Qld) s 92(2)(d); Evidence Act 1958 (Vic) s 55(b); Evidence Ordinance 1971 (ACT s 29(2)(h).
[124] Evidence Act 1910 (Tas) s 81B(1)(c); Evidence Ordinance 1971 (ACT) s 28(1)(c)—first hand hearsay.
[125] Evidence Act 1898 (NSW) s 14B(1)(i)(b); Evidence Act 1929 (SA) s 34c(1)(i)(b); Evidence Act 1906 (WA) s 79C(1)(a)(ii); Evidence Ordinance 1971 (ACT) s 29(2)(a); Evidence Act (NT) s 26D(1)(a)(ii). In Victoria and Queensland, however, there is no such requirement.
[126] Evidence Act 1898 (NSW) s 1413(3); Evidence Act 1929 (SA) s 34c(3); Evidence Act 1958 (Vic) s 55(4); Evidence Act (NT) s 26D(3).
[127] Evidence Act 1977 (Qld) s 98(1); Evidence Act 1929 (SA) s 34c(5); Evidence Act 1958 (Vic) s 55(9); Evidence Act 1906 (WA) s 79C(4); Evidence Act (NT) s 26D(5).
[128] Evidence Act 1910 (Tas) s 81G(1).
[129] Evidence Act 1898 (NSW) s 1413(6); Evidence Act 1910 (Tas) s 81H(1).
[130] Evidence Act 1910 (Tas) s 81C(3), D(3).
[131] Evidence Act 1929 (SA) s 45a; Evidence Act 1910 (Tas) s 40A.
[132] Bates v Nelson (1973) 6 SASR 149, 155; R v Barker [1976] TASStRp 5; [1976] Tas SR 52, 56. See O’Donnelly v Dakin [1966] TASStRp 12; [1966] Tas SR 87 (dicta to contrary).
[133] Evidence Act 1905 (Cth) Pt IIIA; Evidence Act 1898 (NSW) Pt IIC; Evidence Act 1910 (Tas) Pt III (2B).
[134] It is also permitted that the statement be derived from information from one or more devices.
[135] Evidence Act 1898 (NSW) s 44-51; Evidence Act 1977 (Qld) s 83-91; Evidence Act 1929 (SA) s 46-52; Evidence Act 1910 (Tas) s 33-40; Evidence Act 1958 (Vic) s 58A-J; Evidence Act 1906 (WA) s 89-96; Evidence Ordinance 1971 (ACT) s 21-27; Evidence Act (NT) s 43-49.
[136] The better view is that this legislation provides an exception to the hearsay rule. It is usually applied on that basis, this being its natural meaning. See Myers v DPP [1965] AC 1001, 1028, 1033; R v Smart [1983] VicRp 22; [1983] VR 265, 292; contra Hart v Minister of Lands (1901) SR (NSW) 133 (Fry J dissenting) and Windeyer J, dicta in Elsey v Federal Commissioner of Taxation [1969] HCA 48; (1969) 121 CLR 99, 105-6.
[137] Evidence Act Amendment Act 1982 (SA): ‘Bank’ is intended to include building societies and credit unions. The Act extends the provisions to documents in the possession of control of banks such as cheques, invoices, deposit slips, vouchers and to securities and documents of title. Copies may be tendered but do not have to be verified. It is enough that evidence is given of reasonable steps being taken to ensure the accuracy of the copy.
[138] Evidence Act 1977 (Qld) s 95(1); Evidence Act 1929 (SA) s 59b(1); Evidence Act 1958 (Vic) s 55B(1); Evidence Ordinance 1971 (ACT) s 42; F McNiff ‘Computer Documentation as Evidence: An Overview of Australian Legislation Facilitating Admissibility’ (1981) 1 JLIS 45.
[139] Evidence Act 1929 (SA) s 596(2).
[140] Evidence Act 1977 (Qld) s 95(4), (5); Evidence Act 1929 (SA) s 59b(4)-(6); Evidence Act 1958 (Vic) s 55B(4), (5).
[141] Evidence Act 1977 (Qld) s 98; Evidence Act 1958 (Vic) s 55B(7); Evidence Ordinance 1971 (ACT) s 43.
[142] Evidence Act 1905 (Cth) s 7B; Evidence Act 1898 (NSW) s 14CE; Evidence Act 1910 (Tas) s 40C.
[143] Evidence Act 1905 (Cth) s 7M; Evidence Act 1898 (NSW) s 14CP; Evidence Act 1910 (Tas) s 40N.
[144] Evidence Act 1905 (Cth) s 7Q; Evidence Act 1898 (NSW) s 14CR; Evidence Act 1977 (Qld) s 100; Evidence Act 1910 (Tas) s 40P; Evidence Act 1958 (Vic) s 56.
[145] Law Reform Commission of Western Australia, Working Paper Project No 27, Admissibility in Evidence of Computer Records and other Documents, Perth, 1978.
[146] Transportation Documents: see Evidence Act: (SA) s 45; (Tas) s 81Q, 116A; (WA) s 41A. And see Crimes Act: (NSW) s 419A; Norfolk Island (as applied). Wage Statements: see Evidence Act: (NSW) s 43A; (NT) s 42A. Evidence Ordinance 1971 (ACT) s 38. Family Law Regulations (Cth) reg 93. Prior Consistent/Inconsistent Statements: see Evidence Act: (Qld) s 101; (Tas) s 81L). Spontaneous Contemporaneous Statements: see Evidence Act 1910 (Tas) s 81F. Extension of ‘declaration by deceased’ exceptions: Evidence Ordinance (Sing) S 32-33 as applied in Christmas and Cocos Keeling Islands.
[147] Evidence Act 1910 (Tas) s 81B-D; Evidence Ordinance 1971 (ACT) s 28-30.
[148] Evidence Act 1910 (Tas) s 81H; Evidence Ordinance 1971 (ACT) s 36(2).
[149] Evidence Act 1977 (Qld) s 93; Evidence Act 1958 (Vic) s 55; Evidence Act 1906 (WA) s 79E; Evidence Ordinance 1971 (ACT) s 29.
[150] Evidence Act 1958 (Vic) s 55(3)-(4); Evidence Ordinance 1971 (ACT) s 31.
[151] Evidence Act 1977 (Qld) s 98(1); Evidence Act 1958 (Vic) s 55(9); Evidence Act 1906 (WA) s 79E(2).
[152] Evidence Act 1905 (Cth) s 7D; Evidence Act 1898 (NSW) s 14CG; Evidence Act 1910 (Tas) s 40E.
[153] Evidence Act 1905 (Cth) s 7D(3); Evidence Act 1898 (NSW) s 14CG(3); Evidence Act 1910 (Tas) s 40E(3).
[154] Evidence Act 1905 (Cth) s 7Q; Evidence Act 1898 (NSW) s 14CS: Evidence Act 1910 (Tas) s 40Q.
[155] Evidence Act 1898 (NSW) s 43A; Evidence Ordinance 1971 (ACT) s 38; Evidence Act (NT) s 42A. Note, there are also provisions in the maintenance legislation of States and Territories. Note also the procedure set out in Family Law Regulations 1976, reg 93.
[156] Evidence Act 1977 (Qld) s 75; Evidence Act 1929 (SA) s 53; Evidence Act 1910 (Tas) s 41; Evidence Act 1906 (WA) s 82; Evidence Act (NT) s 50; Evidence Ordinance 1955 (Singapore) as applied to the Christmas and Cocos (Keeling) Islands s 89.
95. Exclusionary Rule—Different Definitions. It is generally assumed that there exists a rule against the admissibility of evidence that is described as evidence of ‘opinion’.[1] Phipson states:[2]
The opinions, inferences or beliefs of individuals (whether witnesses or not) are inadmissible in proof of material facts.
Formulations of the rule, however, tend to be extra-judicial[3] and often differ in their detail. In Cross On Evidence,[4] for example, the rule is described in the following terms:
A witness may not give his opinion on matters calling for the special skill or knowledge of an expert unless he is an expert on such matters and he may not give his opinion on other matters if the facts upon which it is based can be stated without reference to it in a manner equally conducive to the ascertainment of the truth, or if it would not assist the court in coming to a conclusion. The expert will not be permitted to point out to the jury matters which the jury could determine for themselves or to formulate his empirical knowledge as a universal law.
Heydon stated the law to be:
The orthodox doctrine is that a witness may not give his opinion unless(a) he is an expert testifying on a matter calling for the expertise he possesses; or
(b) it is extremely difficult to separate opinions from facts, and the witness’ opinion will help the court.[5]
The major ‘exceptions’ to the exclusionary rule are:[6]
1. expert testimony;
2. the identification of handwriting, persons and things;
3. apparent age;
4. the bodily plight or condition of a person, including death or illness;
5. the emotional state or condition—eg whether distressed, angry, aggressive, affectionate or depressed;
6. the condition of things—for example, worn, shabby, used or new;
7. certain questions of value;
8. estimates of speed and distance;
9. assessment of effect of alcohol—‘The courts make one exception in the case of opinion evidence of police witnesses as to the condition of an accused due to his use of alcohol’;[7]
10. where a witness testifies as to an accused’s reputation or the credibility of a witness or expresses his opinion as to a person’s disposition under s 56(1) Evidence Ordinance 1971 (ACT) or s 413 Crimes Act 1900 (NSW);
11. a witness’ opinion of his own physical or mental state or of the reasons for his acts or reactions;[8]
12. where an accused’s state of mind is a fact in issue:[9]
(a) on a charge of obtaining property by false pretences, the victim may testify that he parted with his property relying upon the accused’s representations;
(b) on a charge of assault the victim’s opinion concerning the accused’s intentions will be admissible;
(c) when the accused’s beliefs are relevant as to the existence or non-existence of mens rea for the offence charged. It has been noted that, on a charge of rape at common law, a mistaken belief by the accused that the prosecutrix was consenting, is inconsistent with the accused possessing the mens rea of rape. Similarly, an accused’s mistaken belief might well ground the defences of self defence and reasonable mistake or (in offences against property) claim of right.[10]
13. possibly on other matters where the witness is in a better position than the judge or jury to draw inferences.[11]
The importance of the exceptions has been argued in some quarters to call for a re-evaluation of whether, ‘there is a rule of exclusion of the opinion of witnesses’.[12] In the United States, Professor McCormick[13] has argued:
[T]he opinion rule today is not a rule against opinions but a rule conditionally favoring them.
The statement in Cross On Evidence might be said to fall between this formulation and the ‘orthodox’.
96. Definition of Opinion Evidence. ‘Opinion’ has been defined as ‘an inference from observed and communicable data’.[14] It has to a significant extent been assumed that a dichotomy can be drawn between evidence of ‘fact’ and of ‘opinion’, the function of stating facts being that proper to the witness and the function of drawing inferences or giving opinions being that appropriate for the judge and jury.[15] The matter was recently examined by Justice Cox in R v Perry (No 4).[16] His Honour prefaced his remarks by commenting:
It seems to me to be at least arguable that a statement of opinion in a business record. relevant to the proceedings before the court, is a ‘fact stated on the record’.
He went on, then, to acknowledge the difficulty that is encountered in defining the difference between a statement of fact and one of opinion, noting Wigmore’s assessment of it as a ‘false verbal antithesis’[17] and at the same time conceding the well-established character of the dichotomy. He concluded, however, that the definition such as ‘inferences from observed and communicable data’, strictly resulted in many statements being technically classed as ‘opinion’, Justice Cox propounded a different interpretation of the meaning of ‘opinion’. Basing himself on one of the OED meanings, he fastened on its aspect of being ‘unsettled’, ‘a disputable point’, and affirmed the dicta of Lewis,[18] quoted by Wigmore:[19]
The essential idea of opinion seems to be that it is a matter about which doubt can reasonably exist, as to which two persons can, without absurdity, think differently. The existence of an object before the eyes of two persons would not be a matter of opinion, nor would it be a matter of opinion that twice two are four. When testimony is divided, or uncertain, the existence of a fact may become doubtful, and, therefore, a matter of opinion.
Justice Cox went on to make use of this new test and to decide that the evidence given by an analytical chemist concerning the presence or absence of lead or arsenic was properly to be regarded as constituted of statements of fact, there being no reasonable scope for doubt over the findings. The definition of Justice Cox is novel and significant and awaits further judicial consideration.
97. Who is an Expert? For the admissibility of opinion evidence by an expert, the law requires that an expert witness possess appropriate specialised qualifications to enable him to supply information and opinions not generally available to members of the public.[20] While he may generally be accounted as an expert, for the case at hand he is only an expert if his peritia[21] is both germane to the issues and needed by reason of his fulfilling a present need on the part of the fact-finding tribunal for what he has to offer.
98. English courts and the High Court, on occasions, appear to have taken a different approach to the question whether an expert may be qualified through experience:[22]
• English Approach. In England it has consistently been held that the expert need not have formal academic qualifications, and that expertise can be acquired through experience. For example, in R v Silverlock[23] an objection was made when a solicitor was called to give evidence on handwriting that he had gained his expertise outside the pursuit of his business[24] through a mere hobby. The Chief Justice Lord Russell, with whom the remainder of the court agreed, held that the expert must be peritus:[25]
But we cannot say that he must become peritus in the way of his business or in any definite way. The question is—is he peritus? is he skilled? has he adequate knowledge?[26]
• Australian High Court Approach. The two leading cases are Clark v Ryan[27] and Weal v Bottom.[28] In the former, witness had given evidence for the plaintiff to the effect that the cause of an accident had been the ‘jack-knifing of a semi-trailer caused by its taking a bend at an excessive speed while lightly loaded’. While the witness had no academic qualifications, he had for some years been engaged in investigating road accidents for insurance companies in assessing losses. A majority of the High Court held the evidence was inadmissible. Chief Justice Dixon adopted the rule formulated by JW Smith in the notes to Carter v Boehm:[29]
On the one hand it appears to be admitted that the opinion of witnesses possessing special skill is admissible whenever the subject matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it without assistance, in other words when it so far partakes of the nature of science as to require a course of previous habit, or study, in order to the attainment of the knowledge of it.
He then quoted the comment of Justice Vaughan Williams in R v Silverlock[30] and noted that, ‘the words, profession or course of study, have of course a wide meaning and application’ and cited Lord Russell as his apparent justification, clearly suggesting that Justice Vaughan Williams be read subject to Lord Russell and, therefore, implying that experiential expertise would be adequate. However,[31] the statements of the two English judges sit together very uneasily and are not necessarily made the clearer by their collocation by Chief Justice Dixon.
Justice Menzies had a definite preference for the academic acquisition of expertise:
Opinion evidence to account for a happening that is described to a witness is admissible only when the happening can be explained by reference to an organised branch of knowledge in which the witness is an expert.[32]
Justice Windeyer may tentatively be said to have expressed sympathy for the position of Justice Menzies. Justice Fullagar contrived to agree with both Chief Justice Dixon and Justice Menzies but did not express an opinion on this point. Justice McTiernan quoted the statement of Lord Russell and looked to the question of whether the witness was in fact skilled, being indifferent to the means of his acquisition of that skill.
In Weal v Bottom[33] the allegedly expert evidence which was given by a witness was in driving semi-articulated vehicles the rear portion of the vehicle has a tendency to swing out when rounding a curve, that this tendency is more marked when the road surface is slippery and, therefore, that, when rounding the curve, in such a condition skill and care need to be exercised. It was held by a majority that the evidence was admissible. It was held by Chief Justice Barwick and Justices Kitto and Taylor that a long course of actual experience in the use of a vehicle or apparatus or of observation of its actual behaviour in relevant circumstances qualifies a person to give evidence as to such behaviour as a fact within his experience or observation.[34] It was stated that this evidence is not of opinion, although there is a tendency to refer compendiously to it as such.
What is of importance, in this context, however, is that the majority of the court, led by the Chief Justice, was not prepared to account the truck driver’s evidence as that of an expert, be it fact or opinion. Chief Justice Barwick, in particular, held an expert to be ‘a person who by study and instruction in some relevant scientific or specialised field was able to express an opinion, founded on scientific or specialised knowledge thus acquired’[35] easily distinguishable from a common witness who had acquired his skill through experience and observation.
Justice Taylor may also be regarded as suggesting that the witnesses, who were skilled by experience rather than by ‘a course of study’, were probably not qualified to express opinions and so were not experts.[36] Justice Menzies adhered to his earlier view and noted that ‘The so-called experts’ evidence gave no explanation of proven facts by reference to some organised body of knowledge’,[37] and held that the evidence was not admissible.
Different positions, therefore, have been taken in the High Court—Justice McTiernan apparently favouring the English position, Chief Justice Dixon being somewhat ambiguous but tending to the English position and Chief Justice Barwick and Justices Menzies and probably Taylor (possibly with Justice Kitto) exhibiting a prejudice against the possibility of experientially acquired expertise.
• State Approaches. It is by no means rare for persons qualified mainly or even solely by experience to testify as experts. A New South Wales example of this is McAllerter v Richmond Brewing Co[38] where an experienced hotelier was allowed to give evidence as an expert that he had over a period of time observed the bar trade in a particular hotel with a view to making an offer for the licence, and that in his opinion the volume of business being done was sufficient to warrant a representation made by the defendant as to the takings. Authorities vary—for example:
― Victoria. In R v Parker,[39] Justice Cussen spoke of expertise being acquired by experience. In Grace v Southern[40] Justice Crockett did not address himself to the relative merits of the various modes of acquisition of expertise but quoted the words of Clark v Ryan that favour the English position and did not advert to the opinions of Chief Justice Barwick or Justice Menzies.
― South Australia. In Wolper v Poole,[41] Chief Justice Bray highlighted initially the Dixonian point of view, quoting the catholic approach expressed in Clark v Ryan, but expressed his ruling in limited terms:
accident investigation has now become an organised branch of knowledge in which there is an organised course of study.
― Western Australia. In Nickisson v R[42] Justice Jackson, (with whom Justice Negus agreed) held, referring to evidence given by a police officer on the circumstances of an accident that:
This was of course only an opinion on his part, and in my view the fact that he had had 12 years’ experience in investigating traffic accidents in no way qualified him as an expert to express such an opinion.
Justice D’Arcy, however, was of precisely the opposite opinion, stating that he considered the police officer’s testimony to be analogous to that of a handwriting expert or of a native tracker stating his conclusions from his observations in the light of his experience. He continued:
I conclude that in the light of the experience of his occupation, and stating it to be such, the witness was entitled to testify at that level as he did.[43]
― Tasmania. In Dixon v City of Glenorchy objection was made to a valuer giving evidence as an expert on the ground that he was not qualified. He agreed that he had not passed valuers’ examinations and that he had not previously conducted a valuation in the area. Thus, the objection was both as to the existence of any expertise and also to its adequacy if its existence was first established. Justice Chambers overruled the objection and admitted the evidence on the basis that he was sufficiently qualified, with the objections going to the weight of his evidence.[44]
A more unequivocal statement of this principle was that enunciated by Chief Justice Green in 1981:
When a court is determining whether a witness is qualified to give opinion evidence, the crucial issue is whether the witness in fact possesses the requisite knowledge or skill, not how or in what capacity he acquired it.[45]
• Foreign Law. Support for a less rigid approach may be found in the cases dealing with experts in foreign law. It is difficult to identify the precise reasons. A prerequisite for a person to testify on foreign law is that he be ‘a person who, by reason of his being generally skilled in the law of the foreign country, may be expected to know the answer to the particular question upon which information is sought’.[46] The witness need not be a lawyer. Thus the Governor of a colony,[47] an ambassador,[48] an embassy official,[49] a vice-consul,[50] a notary public,[51] the Reader in Roman-Dutch Law to the Council of Legal Education[52] a bishop,[53] a merchant[54] and a bank manager[55] have been allowed to give evidence on foreign law. It should be noted that the mere fact of longstanding residence is not sufficient qualification to constitute a witness as an expert on foreign law[56] but, rather, it is the adequacy of the knowledge of the witness in the context of the particular evidence that is going to be demanded of him that is looked to. This is so to such an extent that, lawyers may be rejected as not the best witnesses available.[57] What is required is that the witness ‘may be expected to know the answer to the particular question upon which information is sought’, no more, no less.[58]
99. Conclusion. A divergence between the criteria recognised as sufficient to constitute expertise in England and those demanded in Australia seems temporarily to have developed. Predictably, the State approaches are diverse in their reflection of the High Court uncertainty.
100. Level of Skill Demanded. It is both unhelpful and impractical to attempt to formulate statements about the degree of expertise required for an expert to be so classified. It may, however, be said that while courts are in general not overly technical in respect of the specialisation of qualification that they demand, there have been occasions when they have shown themselves to be particular indeed. For example, evidence by a leading Professor of Anatomy may even be disallowed if it strays into the field of forensic pathology.[59] Whereas experience in driving does not make a witness an expert on the capabilities of a person charged with dangerous driving.[60] and even police training and ordinary experience does not qualify an officer to the point of expertise in respect of all kinds of vehicles,[61] it is not necessary for a doctor to have specialised in studies concerned with the rate at which the blood destroys alcohol before he can give evidence on such a subject based on tables.[62]
101. The Approach. The courts have developed rules to exclude expert opinion evidence:
• Common Knowledge. If a matter is a matter within common knowledge—within ordinary human experience—then expert opinion evidence about it will not be admitted.[63]
• Field of Expertise. Some support is to be found in the cases for a rule excluding expert opinion evidence where the evidence relates to matters not within a recognised field of expertise.[64]
• Ultimate Issue. It is commonly stated that a witness may not express his opinion upon an issue which the court or jury must determine.[65]
In each instance, however, there are conflicting authorities and varying degrees of uncertainty as to the existence, scope and content of such rules.
102. ‘Common Knowledge’. As in the case of judicial notice—but for different purposes—reliance is placed on the concept of common knowledge—knowledge that is widely current.[66] Two distinguishable approaches have, however, been taken by the courts.
• The ‘Strict’ Exclusionary Approach. Expert opinion evidence is not admissible in matters of ‘common knowledge’. The reasons have been said to be that:
the jury is representing the ordinary man, and it follows that, at any rate as to matters affecting the ordinary man, the jury, as such, must make decisions in such matters.[67]
An expert’s opinion is admissible to furnish the court with scientific information which is likely to be outside the experience and knowledge of a judge or jury. If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of an expert is unnecessary. In such a case if it is given dressed up in scientific jargon it may make judgment more difficult. The fact that an expert witness has impressive scientific qualifications does not by that fact alone make his opinion on matters of human nature and behaviour within the limits of normality any more helpful than that of the jurors themselves; but there is a danger that they may think it does.[68]
The High Court has questioned whether evidence concerning ‘ordinary human nature’ cannot be called ‘expert’ at all, so clearly does it fall within the scope and experience of the ordinary man.[69]
The ordinary man has been held to have general knowledge but not an informed appreciation of the impact of material upon a ‘special class’ of person[70] whose existence as such is determined by the measure of its variation from the societal norm. The courts have at times confined the expression, ‘special class, within very strict limits and at others given it a more liberal interpretation. The result has been that the English courts have taken a comparatively wide view of what constitutes a special class of person, especially children, holding that the jury cannot be expected to appreciate the effect of material upon minors without assistance.[71]
Another subject outside the area is the manner in which men pursuing a special vocation[72] would reason about a matter of business. It is open to a court to hold that the reaction to manifestly sex-oriented literature by adolescents mentally, psychologically or sexually abnormal, could properly be the subject of expert testimony. Certainly, the assessment of what the court determines to be the normal person is outside the parameters of expert evidence.[73] The Victorian Supreme Court has held that normal school children are ordinary human beings, forming no special category of humanity[74] and in respect of whom expert evidence is inadmissible.[75]
• A Functional Approach. On occasions, the courts have asked whether the jury will receive appreciable help from the expert. For example, Chief Justice Young in R v Wright[76] focused on the possibility that:
without the assistance of opinion evidence, the jury would have been unlikely to form a proper judgment on the evidence ...
In Burger King Corporation v Registrar of Trade Marks[77] Justice Gibbs (as he then was) invoked the concept of ‘competence’ to form an opinion and rejected evidence on the ground that it was not only an expert who was ‘competent’ to form an opinion as to the meaning of an expression. His Honour, therefore, was looking to a more demanding requirement for the exclusion of expert evidence—that it be rejected only if the jury were able sufficiently to draw their own conclusions. Under this interpretation, it is quite possible that evidence as to the workings of the memory and the dangers of identification evidence could be admissible. Justice Hutley in his dissenting judgment in Epperson v Dampney[78] took the view that the knowledge of a judge may be capable of useful expansion by expert evidence ‘which is itself a compendious way of expanding experience’. His Honour appeared to support the ‘usefulness’ approach rather than the ‘common knowledge’ approach:
One can only compare the understanding of the child since the concept of childish innocence has been replaced by an understanding of infant sexuality to which, to my knowledge, the general knowledge and experience of judges did not contribute, to appreciate that judges even in their special fields have to be free to utilize the evidence of the learned.
If such an approach is applied to the testimony of experts, the result must be that the concept of ‘need for assistance’ will become the dominant one and the field’s normalcy not what is concentrated upon.[79] While the traditional approach of the courts has been to assert that the function of expert evidence is to render assistance to the determination of a fact in issue, the apparent corollary that the jury should receive expert evidence when it would be helpful has not generally been asserted.
The weight of case law supports the traditional common knowledge delimitation. It must be acknowledged, however, that the above recent judicial statements raise uncertainty about the correct approach to take. Should we ask whether a juryman is sufficiently ‘competent’—would he benefit from expert testimony?
103. Field of Expertise. The parameters of expert evidence have traditionally been said to be that an expert may not testify upon an area of common knowledge, and that he may only testify upon an area within his competence. The situation may arise, however, where the area upon which the expert seeks to testify is a new area of study whose validity has not as yet been fully assessed. Several approaches are possible to the admissibility of such evidence, including:
• the court may exclude it as relating to an area of common knowledge;
• the court may hold that the ‘expert’ is not truly an ‘expert’ in this particular area;
• the court before admitting the evidence, may require that it be demonstrated that there is an ‘area of expertise’.
The latter approach was adopted in the United States. An exclusionary canon developed which forbade an expert to testify upon anything which was not within ‘an area of expertise’. This introduced a further parameter to the giving of expert testimony: it meant that the expert could not testify on matters that had not emerged sufficiently from the experimental to the demonstrable to be accounted within accepted ‘areas of expertise’.[80] Two recent Australian cases contain support for the introduction of such an approach:
• R v Gilmore.[81] The accused sought to tender evidence from an expert in voice analysis. The expert gave his opinion, which was formed by means of a comparison of two sets of tape recordings (his own and that of the police) using a spectograph. The trial judge rejected the evidence proposed to be given, substantially on the ground that it had not been established that the field of voice analysis by means of a spectograph was a recognised field of scientific knowledge, capable of being the subject of expert testimony in court. In the Court of Criminal Appeal, Chief Justice Street held:
Notwithstanding a more narrowly expressed view in Wigmore On Evidence, 3rd ed, vol 11 p 641 para 561, it is clear enough that an appellate court in this country has jurisdiction to review, in appropriate cases, both the question of whether or not the particular witness qualifies as an expert, and the question of whether the field in respect of which his evidence is sought to be tendered is such as to be properly the subject of expert testimony.[82]
Chief Justice Street held that the evidence should have been admitted as the study had developed to the point ‘where it can, and indeed should in appropriate cases be made available to tribunals of fact’.[83] So the Chief Justice accepted the need for a recognised field of expertise and held that the requirement was satisfied.
• In Eagles v Orth[84] the Full Court of the Queensland Supreme Court considered the admissibility of purportedly expert evidence on the effect of the wearing of seat-belts. Justice Dunn focused on the need for the judge to find as a fact ‘that there exists relevant technical or scientific knowledge’ not possessed by the fact-finder and, therefore, the need for that knowledge. He stated that if the study of seat-belts ‘is not a science, the opinion evidence should not have been allowed ...’[85] He held that:
The state of the evidence was such that, in my opinion, whilst there may be some room for difference of opinion upon the matter, it has not been shown that the learned trial judge was wrong in the relevant sense in his conclusion that ‘the study of seat-belts’ has become a recognized field of specialist knowledge.[86]
His Honour noted in connection with his consideration of whether the area should be accounted as one of expertise that much had been written about the subject of wearing seat-belts and their effect on safety. This was treated as a useful guide to the determination of the status of the area and Justice Dunn went on to say:
If a subject is demonstrated to be a proper subject for expert evidence, and it is a subject in which theoretical rather than empirical knowledge is important, or one in which theoretical as well as empirical knowledge is important, it appears to me that an expert may express an opinion on the subject, based solely upon his study and evaluation of well-regarded publications.[87]
It is clear, then, that Justice Dunn was intent on imposing some additional requirement to the existence of peritia in the witness and that this centred on the status of the area which constituted the expertise of the witness. Nevertheless, it provides support for a requirement of a field of expertise. It must be acknowledged, however, that the High Court has not as yet specifically addressed itself to this concept.[88]
104. If an American field of expertise requirement is the law, the issue arises of whether an aspect of it—that the opinion be based on scientific principles accepted in the particular field—is also the law. The classic statement comes from the court in Frye v US:[89]
Just when a scientific principle crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone, the evidential force of the principle must be recognised, and while the courts will go a long way in admitting expert testimony deduced from a well recognised scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.
Chief Justice Street specifically referred[90] to the general acceptance standard and to the Frye case:
the considerable reliability proved by the Tosi experiment, the greatly added reliability induced by the application of further skills by the experienced examiner working under forensic conditions, and the totality of the evidence received at the voir dire hearing which tended to minimise the importance and weight of adverse or skeptical writings all served to support a conclusion of general acceptability as required by the rule of the Fatalo (1963) 191 NE 2d 479 and Frye (1923) 293 Fed 1013 cases.[91]
However, the means of determining when a principle establishes general acceptance in its field was not outlined by the Chief Justice and it remains a matter for speculation as to how this is to be determined.[92] The problems and the volume of litigation that the Frye test has spawned in the United States have been legion and it remains to be seen how the Australian courts deal with them if they adopt the ‘field of expertise test’ together with the problems inherent in its implementation.
105. The Ultimate Issue. It has commonly been stated that a witness may not be asked to testify as to an ‘ultimate fact in issue’, a question which the court or the jury has to determine. The rule is most often invoked in connection with expert opinion but applies generally to all witnesses. The rule forbidding evidence as to an ultimate issue has been productive of controversy and doubt.[93] Different definitions exist:
• A Rule with Ill-Defined Exceptions.[94] There is a strict rule excluding the admission of such evidence but there are exceptions to it, the classes of which are not yet ‘fixed’[95] and may be recognised only when ‘absolutely necessary’.[96] The rule itself has always been circumventable by careful choice of words.[97]
• Opinions on Law Inadmissible. Where the opinion tendered involves what is a mixed question of law and fact the opinion is strictly not admissible. This view was well expressed by Justice Bliss in Grismore v Consolidated Products Company:
No witness should be permitted to give his opinion directly that a person is guilty or innocent or is criminally responsible or irresponsible or that a person was negligent or not negligent or that he had the capacity to execute a will, or deed, or like instrument ... But the reason is that such matters are not subjects of opinion testimony. They are mixed questions of law and fact. When a standard, or a measure, or a capacity has been fixed by law, no witness whether expert or non-expert, nor however qualified, is permitted to express an opinion as to whether or not the person or the conduct, in question, measures up to that standard. On that question the court must instruct the jury as to the law, and the jury must draw its own conclusion from the evidence.[98]
This analysis was adopted by Samuels[99] and was followed by Justice Dunn in R v Tompkin.[100] Justice Glass expressed similar sentiments in Gray v Australian Motorists and General Insurance Co Pty Ltd[101] In R v Palmer,[102] denying the traditional formulation, Justice Glass stated:
The true rule, in my opinion, is that no evidence can be received upon any question, the answer to which involves the application of a legal standard ... These are questions, the answers to which can only be given by the jury after the judge has instructed them upon the rule of law which they must apply.
• Text writers. The rule is laid down in Greenleaf On Evidence,[103]
Although it is not always a valid objection to the expression of an opinion by a witness that it is upon the precise question that the jury are to determine, yet evidence of that character is only allowed when, from the nature of the case, the facts cannot be stated or directed to the jury in such a manner as to enable them to form an accurate judgment thereof, and no better evidence than such opinion is obtainable.
In Phipson On Evidence it is suggested that:[104]
The cases are conflicting as to how an expert may be asked the very question which the jury has to decide; but the weight of authority appears to be as follows:
(a) Where the issue involves other elements besides the purely scientific, the expert must confine himself to the latter and must not give his opinion upon the legal or general merits of the case;
(b) Where the issue is substantially one of science or skill, the expert may, if he has himself observed the facts, be asked the very question which the jury has to decide. If, however, his opinion is based merely upon facts proved by others, such a question is improper, for it practically asks him to determine the truth of their testimony, as well as to give an opinion upon it.
Uncertainty is created by the gap between legal theory and practice. Many examples exist of evidence on ultimate issues being admitted. It is common for medical witnesses to be asked whether in their opinion the accused at the relevant time and place knew the nature and quality of his act and whether it was wrong where the ultimate issue is an insanity defence.[105] Evidence has also been accepted on the issue of the materiality of the representation in an application for insurance,[106] the issue in a marine case of proper seamanship[107] or the issue of negligence in malpractice actions against professional men.[108] In criminal cases a medical witness may properly be asked whether the deceased died from natural or unnatural causes, whether or not wounds were self inflicted,[109] whether the bride in the bath died from epilepsy or drowning.[110] The effect of the proscription upon evidence on questions of mixed law and fact, however, is no more than to alter the form of the question asked of the expert by counsel so as to ensure that the expert is confining himself to non-legal language that will nevertheless establish the same point.[111]
106. One of the few things that can be asserted with confidence in relation to the ultimate issue rule is, therefore, that a witness, be he expert or common, may not offer his opinion on any matter which involves his use of a ‘legal’ term. So too, though, may it be said that there is a substantial move away from the concept that evidence should never be given on any ultimate issue. A clear test, however, has yet to emerge.
107. Common Law. The status of opinion evidence based on material that is not already admitted into evidence is a matter of some controversy. Phipson notes:
An expert may give his opinion on facts which are either admitted, or proved by himself, or other witnesses in his hearing, at the trial, or are matters of common knowledge; as well as upon hypothesis based thereon. His opinion is not, in general, admissible upon materials which are not before the jury, or which have been merely reported to him by hearsay.[112]
Dr Pattenden comments:[113]
It is submitted that at least in criminal cases both the opinion and an account of the facts on which it relies are inadmissible. This may well have been the common law position in the United States.[114]
108. Under this hypothesis expert opinion evidence that had as its basis either hearsay or inadmissible opinion material would not be admissible. However, unequivocal authority for such a principle is scant:
• Civil Trials. Some authority may be found in Sych v Hunter[115] where it was held that psychiatric evidence based in part upon the testimony of a mother who was not called to give evidence was ‘clearly inadmissible’.[116] Chief Justice Bray said:
I can understand how desirable it may be in a scientific sense for the psychiatrist to acquaint himself with the opinions, the attitudes and the personalities of patients’ close relatives and friends, but it cannot be too clearly emphasised that from the point of view of the law all this, if it takes place in the parties’ absence, is hearsay or opinion founded on hearsay and has to be excluded in justice to those who have had no opportunity of testing it.[117]
In Ramsay v Watson, however, the High Court took the view that the consequence of not proving the factual basis is that the opinion may be of ‘little or no value’ not that it would be inadmissible.’[118] No basis rule of admissibility was laid down by the High Court. It did state, however, that a trial judge can properly refuse to admit evidence of statements made to him on which he bases his opinion where it is apparent that other evidence to prove the truth of those statements will not be adduced. It is notable, though, that Justice Kaye of the Victorian Supreme Court apparently cites Ramsay v Watson as authority for rendering expert opinion evidence not based on admitted evidence inadmissible:
[T]he preliminary requirement of verification of the facts upon which the opinion evidence was based was not satisfied, thereby rendering his evidence inadmissible: cf Ramsay v Watson (1961) 108 CLR 642, 648-9.[119]
This was also the view of Justice Blackburn (as he then was) in Milirrpum v Nabalco Pty Ltd[120] where His Honour considered the basis upon which an anthropologist gives his evidence as an expert:
To rule out any conclusion based to any extent upon hearsay—the statements of other persons—would be to make a distinction, for the purposes of the law of evidence, between a field of knowledge not involving the behaviour of human beings (say chemistry) and a field of knowledge directly concerned with the behaviour of human beings, such as anthropology. A chemist can give an account of the behaviour of inanimate substances in reaction, but an anthropologist must limit his evidence to that based upon what he has seen the aboriginals doing, and not upon what they have said to him.
His Honour went on to note that the expert, after all, was the one most qualified to distinguish between the relevant and the irrelevant and the worthwhile and the worthless. While prepared to affirm the existence of a policy that demands that ‘every opinion must be shown to be based either on proved facts or on stated assumptions’,[121] His Honour questioned the validity of the fact/opinion dichotomy and viewed the situation in a very flexible way:
It seems to me that the question is one of weight, rather than of admissibility, of the evidence, and that the court must be astute to inquire how far any conclusion proffered by an expert is indeed based on facts and to weigh it accordingly; but the ‘facts’ include those ascertained by the methods, and described in the terms, appropriate to his field of knowledge.[122]
His approach, therefore, seems to be that if it is the usual practice of experts in a certain area to inform themselves by means of reliance upon the statements of others, or perhaps even upon the work and opinions of others, then those statements and that work should be accounted as sufficient to form the basis of the expert’s opinion. However, the absence of admitted evidence of the basis for the opinions will go to weight, not admissibility.
• Criminal Trials. There is authority suggesting that the issue becomes one of weight in the criminal trial.[123] Notably it is the case of R v Turner[124] that Pattenden[125] cites as her authority for the putative basis rule. However, it is submitted that the words of Lord Justice Lawton do not necessarily support the existence of the rule:
It is not for this Court to instruct psychiatrists how to draft their reports but those who call psychiatrists as witnesses should remember that the facts upon which they base their opinions must be proved by admissible evidence. This elementary principle is frequently overlooked.[126]
The sanction to be imposed by the courts for nonfulfilment of this imperative was not spelt out by His Lordship. Whether what was being assumed was an admissibility criterion or simply an injunction whose breach would substantially affect the weight to be given to the opinion evidence is not clear. Lord Justice Lawton went on to say:
The psychiatrist’s report contained a lot of hearsay which was inadmissible. A ruling on this ground, however, would merely have trimmed the psychiatrist’s evidence: it would not have excluded it altogether.[127]
Once more, it is not clear whether these comments refer to the opinions or to the statements of the facts upon which they were based. Similarly, in R v MacKenny[128] it was held that since much of a psychologist’s report was based on hearsay ‘that’ would have to be ‘edited out’. However, the English Court of Criminal Appeal has since stated definitively:
Where an expert relies on the existence or non-existence of some fact which is basic to the question on which he is asked to express his opinion, that fact must be proved by admissible evidence: see English Exporters (London) Ltd v Eldonwall Ltd [1973] Ch 415, 421E per Megarry J and R v Turner (Terence) [1957] QB 834, 840B. Thus, it would no doubt have been inadmissible if Mr Cooke had said in the present case that he had been told by somebody else that the refractive index of the fragments of glass and of the control sample was identical, and any opinion expressed by him on this basis would then have been based on hearsay. If he had not himself determined the refractive index, it would have been necessary to call the person who had done so before Mr Cooke could have expressed any opinion based on this determination.[129]
Compounding the uncertainty in the criminal context, a recent Full Court decision of the Victorian Supreme Court has expressed itself in similar terms, the Chief Justice, for instance, saying:
Before the evidence sought to be adduced could have been received it would have been necessary to prove by admissible evidence the facts upon which such an expert may base his opinion before the opinion can be received.[130]
If it can be correctly said that an admissibility rule does not yet exist in Australia, the reasons for refusing to admit expert opinion evidence based upon material not admitted into evidence could be as follows:
― Irrelevance. The trial judge could hold an opinion to be irrelevant in the sense of it being not sufficiently relevant either because its probative value could not be assessed or was too slight.[131]
― Criminal Trial Discretion. The common law discretion to exclude prosecution evidence when its probative value is outweighed by its prejudicial effect could be what is utilised.[132]
Research, has not however, revealed any authorities where these options are canvassed.
109. Family Court. Reports may be ordered by the court pursuant to sections 62(4) and 63(2) of the Family Law Act 1975 (Cth).[133] The court counsellor or welfare officer, who makes such reports, acts as a court expert in giving opinion evidence. The legislative procedure makes significant inroads into the limitations imposed by the common law with respect to common knowledge and ultimate issue. The court has an unfettered discretion to admit the whole or part of such reports into evidence. The Family Court has been at pains to avail itself of all possible assistance from such reports. Its tendency is always toward maximum judicial discretion as to the weight to be accorded to evidence presented before the court. Flexibility is thus achieved in an informal way.
The legislature has ... moulded their procedure and rules of evidence to serve rather than to thwart the best interest of the child; ... it has, for example, relaxed the hearsay rule.[134]
This is so to some extent in the consideration of the expertise of the counsellor. A court counsellor or welfare officer, however, is not an expert ipso facto.[135]The court has held that an expert is only an expert when working as such, being prepared even to draw a distinction between a social worker’s capacity as a marriage guidance counsellor and as it welfare officer supervising an order made under Part II of the Act.[136] So too common knowledge and ultimate issue restrictions tend not to be as strictly adhered to as in other courts.
110. Cocos (Keeling) Islands, Christmas Island. The Evidence Ordinance proscribes the giving of opinion evidence by non-experts. The exceptions are limited:
Section 45(1). When the court has to form an opinion upon a point of foreign law or of science or art, or as to identity or genuineness of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity or genuineness of handwriting or finger impressions, are relevant facts.(2) Such persons are called experts.
The criteria focus upon the skill of the witness and, while requiring special skill, do not define the means of acquisition of that skill.[137] The legislation also provides that:
facts not otherwise relevant are relevant if they support or are inconsistent with the opinions of experts when such opinions are relevant.[138]
Other exceptions to the rule are provided:
Section 47—When the court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed, that it was or was not written or signed by that person is a relevant fact.Section 48—When the court has to form an opinion as to the existence of any general custom or right, the opinions as to the existence of such custom or right of persons who would be likely to know of its existence, if it existed, are relevant.
Section 49—When the court has to form an opinion as to—
(a) the usages and tenets of any body of men or families;
(b) the constitution and government of any religious or charitable foundation; or
(c) the meaning of words or terms used in particular districts or by particular classes of people, the opinions of persons having special means of knowledge thereon are relevant facts.
Section 50(1)—When the court has to form an opinion as to the relationship of one person to another, the opinion expressed by conduct as to the existence of such relationship of any person who as a member of the family or otherwise has special means of knowledge on the subject is a relevant fact.[139]
The legislation does not specifically impose[140] any limits such as the tests of common knowledge, field of expertise and ultimate issue. The approach in the Act is comparatively narrow, being limited to specific categories of evidence.
111. Opinion based on Inadmissible Evidence. A variety of legislation is applicable:
• Family Law Act. Reference has been made to the unfettered discretion to admit counsellors’ and officers’ reports whether based on hearsay or not.[141]
Christmas and Cocos (Keeling) Islands. The provisions of the Singapore Ordinance remove the problem by making the expert’s evidence of the basis of his opinion admissible.[142]
• Hearsay Legislation. The vast body of legislation which creates exceptions to the hearsay rule can be applied to particular hearsay evidence to secure its admissibility and thus prove part of the basis of the opinion. The legislation is referred to above.
One type of legislation is that based upon 1938 English reforms enabling the tendering of statements in a document made by a person with personal knowledge of the matters recorded and enables the tendering of such documents in civil proceedings. It also allows the tendering of a record containing statements made by a person with personal knowledge of the matters recorded. A condition of admissibility, however, is that the person who had the personal knowledge is called unless that is not possible. There are differences in the versions of the legislation.[143] These provisions do not apply in criminal proceedings except those which relate to records. An exception to this is the legislation applying in Tasmania and the Australian Capital Territory. There is uncertainty about whether they apply to statements of opinion.
Another type of provision is that relating to business records.[144] Of particular significance for the Reference is the Commonwealth Business Records provision based upon the NSW Business Records legislation. Under that legislation, however, the statement in the record must be made by a qualified person or derived from information in a statement made by a qualified person. A qualified person is defined to mean the owner of a business or the servant or agent of a business and one who may reasonably be supposed to have personal knowledge of the facts stated. This legislation will apply to statements of opinion.[145]
[1] See JM McGuire, Evidence, Common Sense and Common Law, Foundation Press, Chicago, 1947, 23-31; GD Nokes, Cockle’s Cases and Statutes on Evidence, 11th edn, Sweet & Maxwell, London, 1970, 85; HA Hammelmann, ‘Expert Evidence’ (1947) 10 Modern Law Rev 32, 33; Hollington v F Hewthorn and Co (1943] 1 KB 587, 593 (Lord Goddard CJ).
[2] JH Buzzard, R May & MN Howard (ed) Phipson on Evidence, 12th edn, Sweet & Maxwell, London, 1976, para 1201.
[3] DC McDonald, ‘Opinion Evidence’ (1978) 16 Osgoode Hall LJ 321.
[4] JA Gobbo, D Byrne & JD Heydon, Cross on Evidence, 2nd Aust edn, Butterworths, Sydney, 1979, para 16.2.
[5] JD Heydon, Cases and Materials on Evidence, Butterworths, London, 1975, 369; See also SA Schiff, Evidence in the Litigation Process, Carswell Co, Toronto, 1978, vol 1, 438.
[6] Exceptions 2-8 are outlined in Sherrard v Jacob [1965] NI 151, 156 (Lord MacDermott LCJ). See also ID MacPhail, Scottish Law Commission, Research Paper on the Law of Evidence of Scotland, Edinburgh, 1979, 448; Price v R Unreported, no 67, (17 December 1981) 14 (Tas CCA) (Cosgrove J).
[7] R v Nagy (1965) 51 WWR 307.
[8] Phipson on Evidence, para 1260; Mansell v Clements [1863] EngR 605; (1874) LR 9 CP 139: R v King [1896] UKLawRpKQB 175; [1897] 1 QB 214. See also the position where a plaintiff in a negligence case denies the contributory negligence of riding in the car of someone unfit to drive.
[9] PK Waight & CR Williams, Cases and Materials on Evidence, Law Book Co, Sydney, 1980, 549ff.
[10] This ‘exception’ in particular should simply be a circumstance excluded by a comprehensive definition of the rule.
[11] Z Cowen & PB Carter, Essays on the Laws of Evidence. Oxford University Press, London, 1956, 166-7.
[12] Nokes, 85; GM Gordon, ‘The Expert Witness’ in SAM McLean (ed) Legal Issues in Medicine, Gower, Aldershot, 1981, 210.
[13] M McCormick, ‘Opinion Evidence in Iowa’ (1970) 19 Drake L Rev 245, 274.
[14] JH Chadbourn (ed) Wigmore on Evidence, Little, Brown & Co, Boston, 1978, vol 7, para 1917; Cross on Evidence, para 16.3; JD Finlaison (ed) Wills on the Law of Evidence, 3rd edn, Stevens & Sons, London, 1938, 150; Heydon, 369, defines an opinion as ‘an inference from observed facts’; also ‘a belief, inference, or conclusion without suggesting it is well—or ill-founded’: CT McCormick, Handbook of the Law of Evidence, West Publishing Co, St Paul, 1954, para 11.
[15] Note, however, Morley v National Insurance Co [1967] VicRp 61; [1967] VR 566, 567 (McInerney J); JB Thayer, A Preliminary Treatise on the Low of Evidence at Common Law, Little, Brown & Co, Boston, 1898, 524: ‘In a sense all testimony to matter of fact is opinion evidence’.
[16] (1981) 28 SASR 119, 123ff.
[17] Wigmore on Evidence, vol 7, para 1919.
[18] GC Lewis, Influence of Authority in Matters of Opinion (1849) 1.
[19] Wigmore on Evidence, vol 7, para 1919.
[20] See the Australian Federal Court Rules definition: O 34 r 2(2) ‘An expert, in relation to any question, means a person who has such knowledge or experience of, or in connection with, that question, or questions of the character of that question, that his opinion on that question would be admissible in evidence, and that of the High Court Rules: O 38 r 1, ‘expert’ includes a scientific person, lawyer, a medical man, an engineer, an accountant, an actuary, an architect, a surveyor or other skilled person whose opinion on a question relevant to the issues would be received by the Court.
[21] R v Silverlock [1894] UKLawRpKQB 152; [1894] 2 QB 766, 771 (Lord Goddard CJ).
[22] Etymologically, of course, there can be no argument as ‘expert’ and ‘experience’ come from the same root, experior, ‘to try out’ or ‘to know by experience’.
[23] [1894] UKLawRpKQB 152; [1894] 2 QB 766.
[24] R v Wilbain and Ryan (1863) 9 Cox CC 448.
[25] See CT Lewis & C Short, A Latin Dictionary, Oxford University Press, London, 1900.
[26] [1894] UKLawRpKQB 152; [1894] 2 QB 766, 771. Earlier, although only in argument, Justice Vaughan Williams had said (769):
‘No one should be allowed to give evidence as an expert unless his profession or study give him more opportunity of judging than other people. Is not a solicitor in that position?’
As pointed out by Sir Richard Eggleston, Evidence. Proof and Probability, 2nd edn, Weidenfeld & Nicolson, London, 1983, 149-50, his agreement with Lord Russell means that his statement during argument cannot be taken as laying down an authoritative proposition, but the statement has, nevertheless, been adopted with gusto in later decisions, particularly in Australia. The mode of acquisition of expertise, or special skill is irrelevant; it is the substance of the peritia that is crucial.
[27] [1960] HCA 42; (1960) 103 CLR 486.
[28] (1966) 40 ALJR 436. Prior to these cases there had been some limited support for the view that expertise could be acquired through experience and that formal training need not be necessary: Wise Brothers Pty Ltd v Commissioner for Railways (NSW) [1947] HCA 33; (1947) 75 CLR 59, 72 (McTiernan J); In Transport Publishing Co Pty Ltd v The Literature Board of Review [1956] HCA 73; (1956) 99 CLR 111, 119, Chief Justice Dixon, with Justices Kitto and Taylor agreeing, appeared unconcerned about contemplating an expert being ‘one qualified by special training or experience’ and the balance of opinion tended to be in favour of not delimiting the means of acquisition of expertise in any particular way. Note, however the ambiguous statement of Justice Dixon in Bugg v Day [1949] HCA 59; (1949) 79 CLR 442 462-3, where a motor car repairer who was allowed to give expert opinion evidence on the causes of a motor accident, although he allegedly was qualified by ten years’ experience as a repairer. Justice Dixon (as he then was) castigated the witness’ evidence, commenting that it was not based upon a ‘branch of knowledge or an art in which the witness was skilled’.
[29] TW Chitty, JH Williams & H Chitty (ed) Smith’s Leading Cases, 11th edn, Sweet & Maxwell, London, 1903, vol 1, 509.
[30] [1894] UKLawRpKQB 152; [1894] 2 QB 766.
[31] Eggleston, 127.
[32] Clark v Ryan [1960] HCA 42; [1960] 103 CLR 486, 501-2.
[34] An approach also suggested by Dixon CJ in Clark v Ryan [1960] HCA 42; [1960] 103 CLR 486, 490-1.
[35] (1966) 40 ALJR 436, 438.
[36] id, Justice Kitto agreed with Chief Justice Barwick and Justice Taylor. Justice McTiernan did not address the issue.
[37] id, 445.
[38] [1942] NSWStRp 17; (1942) 42 SR (NSW) 187.
[39] [1912] ArgusLawRp 24; [1912] VLR 152.
[40] [1978] VicRp 8; [1978] VR 75, 79-80. The witness had academic qualifications.
[41] (1972) 2 SASR 419, 421.
[42] [1963] WAR 114, 116. At first sight, the statement of Justice Jackson, seems to be a version of the view of Justice Menzies but, to an extent, it was influenced by the scant regard in which His Honour held the particular kind of evidence that the so-called expert was giving.
[43] id, 120. His Honour, however, held that expertise based solely on experience is inferior to that based on academic qualifications as well. The English Court of Appeal in R v Oakley [1979] RTR 417, 419 (Lord Widgery CJ) dissented from the majority judgment in Nickisson v R hailing the approach adopted by Justice D’Arcy as the correct one.
[44] (1968) 15 LGRA 407, 409; note Weal v Bottom and Clark v Ryan were not cited by Justice Chambers.
[45] Price v R Unreported no 67, (17 December 1981) (Tas CCA) 6 (Green CJ), see also Cosgrove J: ‘The proper test ... is whether the witness’ experience or study in the field under discussion is such that his opinion has more weight than that of an ordinary person’ (id, 16).
[46] Perlak Petroleum Maatschappij v Deen [1924] 1 KB 111, 116 (Scrutton LJ); R v Dent [1845] EngR 201; (1843) 1 Car & K 97; 174 ER 729; Said Ajami v Comptroller of Customs [1954] 1 WLR 1405 (PC): contra Sussex Peerage Case (1844) 11 CI & Fin 85; [1844] EngR 822; 8 ER 1034; Luder v Luder (1963) 4 FLR 292, 295 (Joske J).
[47] Cooper-King v Cooper-King [1900] UKLawRpPro 8; [1900] P 65.
[48] In the Goods of Prince Oldenburg [1884] UKLawRpPro 27; (1884) 9 PD 234.
[49] In the Goods of Dost Aly Khan [1880] UKLawRpPro 26; (1880) 6 PD 6.
[50] Lacon v Higgins (1822) Dow and Ry NP 38; 171 ER 910.
[51] In the Goods of Whitelegg [1899] UKLawRpPro 25; [1899] P 267.
[52] Brailey v Rhodesia Consolidated Ltd [1910] UKLawRpCh 58; [1910] 2 Ch 95.
[53] Sussex Peerage Case (1844) 11 CI & Fin 85; [1844] EngR 822; 8 ER 1034. There is conflicting authority concerning parish priests: JHC Morris (ed) Dicey & Morris on The Conflict of Laws 10th edn, Stevens & Sons, London, 1980, 1210, n 50.
[54] Van der Donckt v Thellusson [1849] EngR 1161; (1849) 8 CB 812; 137 ER 727.
[55] Said Ajami v Comptroller of Customs [1954] 1 WLR 1405.
[56] Bonkowsky v Bonkowsky (1960) NSWR 251.
[57] De Beeche v South American Stores Ltd [1935] AC 148, 161.
[58] Perlak Petroleum Maatschappij v Dean [1924] 1 KB 111, 116.
[59] ‘The Chamberlain Trial: Ruling on Defence Witness’ Expertise’, Canberra Times (16 October 1982); L Murdoch, ‘Judge Rules Out Professor’s Opinion on Blood’, Age (16 October 1982).
[60] R v Davies [1962] 3 All ER 97.
[61] Fisher v Brown [1968] SASR 65; Demasi v Fraser [1965] SASR 284; McKay v Page and Sobolski (1971) 2 SASR 117, 119.
[62] R v Somers [1963] 3 All ER 808; cf The Commissioner for Government Transport v Adamcik [1961] HCA 43; (1961) 106 CLR 292 where opinion evidence was received on the causal relationship between the deceased’s death by acute lymphatic leukaemia and an accident that he had had on the tram. The evidence was given by a medical practitioner who was a member of the Royal College of Physicians and an honorary assistant at a teaching hospital but his experience in relation to leukaemia was very limited. In particular, he had come into contact with only one such case.
[63] R v Carn [1982] 5 A Crim R 466.
[64] In R v O’Callaghan [1976] VicRp 43; [1976] VR 441 Gowans J ruled that a psychologist could not give evidence that the accused’s answers in one alleged record of interview seemed quite different from those in two others.
[65] Joseph Crosfield and Sons Ltd v Techno-Chemical Laboratories Ltd (1913) 29 TLR 378, 379.
[66] General Accident Fire and Life Assurance Corporation v Commissioner of Payroll Tax (1982) 56 ALJR 775, 777; Church of the New Faith v Commissioner for Payroll Tax [1983] VicRp 10; [1983] VR 97.
[67] R v Jordan [1977] AC 699, 717 (Lord Wilberforce); R v Fong [1981] Qd R 90, 95 (expert evidence on how memory works); by analogy the situation must be presumed to be the same with respect to expert evidence on the dangers of eye-witness identification; R v Smith [1979] 3 All ER 605, 611-2; Epperson v Dampney [1904] VicLawRp 58; (1976) 10 ALR 227, 231; see also R v Ashcroft [1965] Qd R 81, 85 (Gibbs J as he then was).
[68] R v Turner [1975] 1 QB 834, 841 (Lawton LJ); R v Honner [1977] TASStRp 1; [1977] Tas SR 1, 5.
[69] Transport Publishing Co Pty Ltd v Literature Board of Review [1956] HCA 73; (1956) 99 CLR 111, 118-9 (Dixon CJ, Kitto and Taylor JJ).
[70] R v Jordan [1977] AC 699, 718 (Lord Wilberforce).
[71] ibid; DPP v A and BC Chewing Gum Ltd [1968] 1 QB 159; contra R v Anderson (1972] 1 QB 304.
[72] R v Wright [1980] VicRp 56; [1980] VR 593, 606-8; Chapman v Walton [1833] EngR 643; (1833) 10 Bing 57; 131 ER 826.
[73] R v McEndoo [1981] 5 A Crim R 52 (Connolly J).
[74] Buckley v Wathen [1973] VicRp 51; [1973] VR 511, 515 (Smith ACJ).
[75] R v O’Callaghan [1976] VicRp 43; [1976] VR 441 held that psychological evidence was inadmissible inter alia because neither (a) the content and nature of an ordinary written record; nor (b) the behaviour of ordinary persons could be made the subject of expert opinion.
[76] [1980] VicRp 56; [1980] VR 593, 608.
[77] [1973] HCA 15; (1973) 47 ALJR 237.
[78] [1904] VicLawRp 58; (1976) 10 ALR 227, 233-4.
[79] Grismore v Consolidated Products Co 232 Iowa 328; 5 NW (2d) 646 (1942).
[80] Rule 702 of the United States Federal Rules of Evidence, has, however, affected this method of analysis. For example some federal courts have held that it overrules the Frye Test (see Watson v State 64 Wis 2d 264, 219 NW 2d 398 (1974); State v Catanese 368 So 2d 975 (1979); State v Kersting 50 Or 461, 623 P 2d 1095 (1981); State v Williams 388 A 2d 500 (Me 1978). Some still apply it. See United States v Addison [1974] USCADC 304; 498 F2d 741 (DC Cir 1974); People v Kelly 17 Cal 3d 24, 549 P 2d 1240, 130 Cal (rptr 144 (1976); Reed v State 283 Md 374, 391 A2d 364 (1978)). The rule requires expertise and that the evidence of the expert will assist the court.
[82] id, 938-9. The Chief Justice cited the cases of Clark v Ryan [1960] HCA 42; (1960) 103 CLR 486 and Eagles v Orth [1976] Qd R 313. See the interpretation of R v Gilmore by the NSW Court of Criminal Appeal in R v McHardie and Danielson [1983] 2 NSWLR 733, 753—‘This Court held that there was in existence a field of expert study and knowledge of voice identification’.
[83] id, 941.
[85] id, 319.
[86] id, 320. Justice Mathews held that the evidence was within the area of common knowledge and should have been excluded, but declined to allow the appeal; Hanger CJ concurred.
[87] id, 321.
[88] Query whether further support may also be found in the judgment of Chief Justice Dixon and Justices Kitto and Taylor in Transport Publishing Co Pty Ltd v The Literature Board of Review [1956] HCA 73; (1956) 99 CLR 111, 119 where the point was made that before evidence can be given upon a subject, in this instance upon the ‘characteristics, responses or behaviour of any special category of persons’, it
must be shown that they form a subject of special study or knowledge and only the opinions of one qualified by special training or experience may be received. Evidence of his opinion must be confined to matters which are the subject of his special study or knowledge. Beyond that his evidence may not lawfully go.
For support of the requirement see also A Kenny, ‘The Expert in Court’ (1983) 99 LQ Rev 197, 207.
[89] 293 Fed 1013, 1014 (1923); see also PC Gianelli, ‘The Admissibility of Novel Scientific Evidence: Frye v US A Half-Century Later’ (1980) 80 Columbia Law Review 1197.
[90] R v Gilmore [1977] 2 NSWLR 935, 940.
[91] Commonwealth v Lykus 327 NE 2d 671, 678 (1975).
[92] Ironically the conclusion was reached that ‘this is a recognised field in which a properly qualified expert can give admissible evidence’ by relying upon the federal case of US v Bailer 519 Fed 2d 463 (1975); where, although spectographic evidence was accepted as of sufficient probative value to be admissible, the area of expertise test’ was expressly rejected:
It is better to admit relevant scientific evidence in the same manner as other expert testimony and allow its weight to be attacked by cross-examination and refutations (466).
[93] Fisher v R (1961) 130 CCC 1, 19-20 (Aylesworth J, Ontario CA); R v Palmer (1980) 1 A Crim R 458, 464 (Glass JA).
[94] R v Wright [1980] VicRp 56; [1980] VR 593, 597-8; Samuels v Flavel [1970] SASR 256, 261-2; Cavanett v Chambers [1968] SASR 97, 105; Dahl v Grise [1981] VicRp 50; [1981] VR 513, 522; R v McEndoo [1981] 5 A Crim R 52, 54.
[95] R v Wright [1980] VicRp 56; [1980] VR 593, 597 (Young CJ).
[96] Samuels v Flavel [1970] SASR 256, 262 (Bray CJ).
[97] See Rich v Pierpont [1862] EngR 192; (1862) 3 F & F 35; 176 ER 16; Sills v Brown [1840] EngR 1098; (1840) 9 Car & P 601; 173 ER 974; Haynes v Doman [1899] UKLawRpCh 69; [1899] 2 Ch 13, 24; R v Honner [1977] TASStRp 1; [1977] Tas SR 1, 6.
[98] 232 Iowa 238, 5 NW (2d) 646, 663 (1942).
[99] GJ Samuels, ‘Problems Relating to the Expert Witness in Personal Injury Cases’, in H Glass (ed) Seminars on Evidence, Law Book Co, Sydney, 1970, 153-4.
[100] [1975] Qd R 1, 42-3.
[101] [1976] 1 NSWLR 669, 675-6 (CA). The ultimate issue rule is frequently traced to the decision in R v Wright [1821] EngR 55; [1821] Russ & Ry 456, 168 ER 895 in which a physician gave an opinion respecting the symptoms of insanity and concluded his testimony by saying, ‘[m]y firm conviction is that it was an act of insanity’. The judges expressed strong doubts as to whether the doctor could say that the act with which the prisoner was charged was an act of insanity, as this was the very point upon which the jury was to decide. This was a question of mixed law and fact. See, Ontario Law Reform Commission, Report on the Law of Evidence, Toronto, 1976, 154.
[102] [1981] 1 NSWLR 209, 214.
[103] S Greenleaf, A Treatise on the Law of Evidence, 14th edn, Little, Brown & Co, Boston, 1883, para 440.
[104] Phipson on Evidence, para 1210; see also R v Tonkin and Montgomery [1975] Qd R 1, 18 (Kneipp J): ‘The law on this subject appears to be far from settled’.
[105] See R v Holmes [1953] 1 WLR 686; [1953] 2 All ER 324; R v Mathews (1953) 17 CR 241; (1953) 9 WWR (NS) 649.
[106] R v Searle [1831] EngR 521; (1831) 1 M & Rob 75, 174 ER 26; R v Frances (1849) 4 Cox CC 57; Yorke v Yorkshire Insurance Company [1918] 1 KB 662; Sun Insurance Office v Roy [1927] 1 DLR 17, 21; R v Rivett (1950) 34 Cr App R 87.
[107] Fenwick v Belt [1844] EngR 319; (1844) 1 Car & K 312; 174 ER 825.
[108] Davy v Morrison [1931] 4 DLR 619, 626; A Samuels, ‘Expert Forensic Evidence’ (1974) 14 Medicine, Science and the Law 17, 20. In civil cases the medical witness may now express an opinion upon whether the defendant was negligent but is more likely to be asked whether the defendant fell below normal professional standards: Rich v Pierpont [1862] EngR 192; (1862) 3 F & F 35, 176 ER 16.
[109] R v Mason (1911) 7 Cr App R 67.
[110] R v Smith (1915) 11 Cr App R 229, 238.
[111] R v Darrington and McGauley [1980] VicRp 36; (1979) 1 A Crim R 124, 158 Justice Jenkinson of the Victorian Court of Criminal Appeal, with whom Chief Justice Young agreed, stated: If there now be such a rule, its operation is not in my opinion to be avoided by such devices as posing the question as one concerning the capacity to do an act or to conceive an intention, in lieu of one as to whether the act was in fact done or the intention in fact conceived. Compare, however, the approach taken with insanity, negligence and fraud.
[112] Phipson on Evidence, para 1209. The authorities quoted by the editors of Phipson for the latter proposition are R v Staunton, The Times, (September 26, 1877); The Gardner Peerage (1824) Le Marchant’s Rep, 85-90; Wright v Tatham [1838] EngR 710; (1838), 5 Cl & Fin 670, 690[1838] EngR 710; , 7 ER 559; Re Dyce Sombre [1849] EngR 498; (1849) 1 Mac & G 116, 128; [1849] EngR 498; 41 ER 1207 (Lord Cottenham). It is most dubious whether these authorities stand for the proposition asserted.
[113] R Pattenden, ‘Expert Opinion Evidence Based on Hearsay’ [1982] Crim L Rev 85, 88.
[114] Ipsen v Ruess 35 NW 2d 82 (1948). In the United States attention focused the admissibility of evidence based upon hypothetical questions. See EW Cleary (ed) McCormick’s Handbook of the Law of Evidence, 2nd edn, West Publishing Co, St Paul, 1972, 36-7; Wigmore on Evidence, vol 2, para 686; Judge Learned Hand, New York Bar Association, Lectures on Legal Topics, 1921-1922; Rabata v Dohner 45 Wis 2d 111, 172 NW 2d 409 (1969).
[116] cf Steffen v Ruban (1966) 84 WN Pt 1 (NSW) 264.
[117] (1974) 8 SASR 118, 119.
[118] [1961] HCA 65; (1961) 108 CLR 642, 649.
[119] R v Haidley and Alford [1984] VicRp 18; [1984] VR 229, 250.
[120] (1971) 17 FLR 141, 161.
[121] id, 162.
[122] id, 162-3.
[123] Gordon v R (1982) 41 ALR 64; R v Reiner (1974) 8 SASR 02; R v Schafferius [1977] Qd R 213; R v Ahmed Din (1962) 46 Cr App R 269, 274-6; R v MacKenney (1980) 72 Cr App R 78, 81.
[124] (1974) 60 Cr App R 80, 81 (Lawton LJ).
[125] Pattenden, 88.
[126] R v Turner (1974) 60 Cr App R 80, 82.
[127] id, 83.
[128] (1980) 72 Cr App R 78, 81 (May J).
[129] R v Abadom [1983] 1 WLR 126, 131.
[130] R v Haidley and Alford [1984] VicRp 18; [1984] VR 229, 234. See also the interpretation of Kaye J in Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642, 648-9.
[131] MI Aronson, NS Reaburn & MS Weinberg, Litigation: Evidence and Procedure, 2nd edn, Butterworths, Sydney, 1979, para 31.18; see above, para 57 (App C).
[132] This was not, of course, available in the civil case of Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642.
[133] Normally where there is concern about a minor.
[134] Priest v Priest (1963) 9 FLR 384, 392 (Herring CJ); Porter v Sinnott (1975) 13 SASR 500, 504 (Walters J).
[135] BBT and JMT [1979] FamCA 82; (1980) FLC 90-809.
[136] Sampson and Sampson [1977] FamCA 42; (1977) FLC 90-253.
[137] cf the apparent Australian position.
[138] Evidence Ordinance 1955 (Singapore) as applied to the Cocos (Keeling) and Christmas Islands, s 46: ‘Relevant’ evidence is ‘admissible’ evidence.
[139] There are exceptions under the Cocos Islands and Nigerian Evidence Acts concerning marriage prosecutions.
[140] Interpretation of similar legislation has imported some of these restrictions: T Akinola Aguda, Law and Practice Relating to Evidence in Nigeria, Sweet & Maxwell, London, 1980, 115; PC Sarkar & S Sarkar, Sarkar’s Law of Evidence, 13th edn, SC Sarkar & Sons Ltd, Calcutta, 1980, 514ff.
[141] Hogue and Haines (1977) FLC 90-259.
[142] Evidence Ordinance 1955 (Singapore) as applied in the Cocos (Keeling) and Christmas Islands, s 46.
[143] See above para 94 (App C).
[144] ibid.
[145] For example the Business Records legislation of the Commonwealth Evidence Act 1905, defines ‘fact’ to include opinion
(s 7B); statements in the documents legislation of Western Australia, Tasmania and the ACT expressly deal with statements of opinion.
In addition, it has been held that statements in documents legislation should not be limited and that the word ‘statement’
is wide enough to include a statement of opinion and the word ‘fact’ should not be construed to exclude opinion: Morley v National Insurance Co [1967] VicRp 61; [1967] VR 566, 567.
112. Definition. The definition of ‘admission’ is uncertain. It is clear that it is an assertion, including statements or conduct, made by a party (in civil litigation) or the accused (in criminal litigation) and adduced in evidence by an opponent (including the prosecution). It is also clear that an assertion made by a third party may sometimes be deemed to be made by a party or accused.[1] But there is a conflict of authority as to the existence of an additional condition—some definitions of admission require that it ‘must be in some way adverse to the party’s interest in the outcome of the actual proceedings’.[2] This may reflect an attempt to provide a rationale for the admissibility of such evidence, when given by someone other than its maker and adduced as evidence of the truth of the assertion, as an exception to the hearsay rule. Most traditional definitions, however, do not include such a requirement.[3]
113. Express (Intentional) Admission. The normal express admission may be in the form of a statement (I did ‘X’) or in the form of conduct (stepping forward when asked to own up). Arguments about whether a particular form of conduct was intended to constitute an admission may obviously arise. But this will be a factual issue. The legal problem areas are few: there is disagreement over whether evidence of pleadings in one action is admissible as an admission in another action.[4] An admission made when acting in a representative capacity is admissible against a person who is a party to a case in a personal capacity[5] but an admission made in a personal capacity is not admissible against him when a party to litigation in a representative capacity.[6]
114. Implied (Unintentional) Admission. Flight from the scene of a crime, or from the jurisdiction, may constitute an admission of guilt.[7] Lies told by an accused, in or out of court, may, depending on the circumstances, give rise to an inference that the accused is thereby displaying a consciousness of guilt.[8] In Woon v R,[9] Justice Kitto, with whom Justice Owen agreed, stated that ‘... an accused person’s reactions to statements or questions put to him ... may have evidential value ... because they show, when considered in the light of the circumstances, that he has a consciousness of guilt of the crime charged’.[10] But Justice Windeyer added a note of warning: ‘when there is no other evidence implicating the accused, an attitude of guilt, without more, may mean only that the accused was a participant in some wrongdoing, not that he committed the crime alleged, in manner and form alleged’.[11] And evidence of nothing more than a mere denial by the accused cannot be used as an admission.[12]
115. Admission by Adoption of Third Party Assertion. Another person’s assertion of the accused’s guilt of a crime is not, by itself, admissible. But if the assertion was made in the presence of the accused and he accepts it as true, either expressly or impliedly, it is equivalent to his own admission, and admissible. Justice Isaacs stated in R v Grills:[13]
The acknowledgment of its correctness may be made in an infinite variety of ways. There may be an express and unqualified admission, or there may be a guarded admission, or there may be no direct but merely an implied acknowledgment, or there may be conduct, active or passive, positive or negative, from which, having regard to the ordinary workings of human nature, a total denial may be considered by reasonable men to be precluded, because, if innocence existed, an unequivocal or a qualified denial would in such a situation be expected. Even an express denial may be accompanied by circumstances such as ‘evasive responsion’: Best on Evidence, para 575, or hesitation or subsequent challenge without reply as in R v Thompson [1910] UKLawRpKQB 18; [1910] 1 KB 640, which leave it open to a jury to say whether an admission of any kind ought not to be inferred.
Any circumstances which may explain the conduct of a party so as to make it a relevant admission are admissible in evidence. This is the principle upon which statements made to or in the presence of a party are admitted. Such statements are not admissible as evidence of the truth of the facts stated except so far as the party accepts them as true—evidence of the statement of the accuser being hearsay evidence.
116. There seem to be two (if not more) approaches to the procedure a trial judge should follow when a statement made in the accused’s presence is tendered by the prosecution:
• The statement is treated as automatically admissible as a matter of law.[14] Even if the trial judge believes that no reasonable jury could find that the accused adopted the statement (or exhibited a consciousness of guilt) there is no rule of law that he must not admit the evidence—rather, it should be excluded under the discretion as of low probative and high prejudicial value.[15]
• The trial judge makes a preliminary determination of law whether there is any evidence from which a reasonable jury, properly directed, could infer adoption of the statement by the accused (or consciousness of guilt). If there is none, the statement is irrelevant and therefore inadmissible.[16]
It is unclear whether the preliminary question of whether the statement was in fact made in the presence of the accused is a matter to be decided by the judge or is dealt with in the same way as the question of adoption by the accused.[17] Similarly, it is uncertain whether the trial judge who admits such evidence (and does not exercise his discretion to exclude) must always warn the jury that a statement made in the presence of the accused is only evidence against him if he adopts it. The High Court in R v Grills[18] (Justice Issacs dissenting) held that the warning need only be given if there was ‘a danger that the jury may think that the statement should be treated as independent evidence of the facts alleged in it’.[19] But appeal courts in Australia, despite repeating the terms of this proposition, have readily held that a warning to the jury is essential.[20]
117. Adoption of Documents. There is also a degree of uncertainty about adoption of documents. It is agreed that if a person reads a document and acknowledges its accuracy, either orally or in writing he adopts the document.[21] The weight of authority also favours the view that if a document (eg record of interview) is (correctly) read to a person (for example the accused) and he acknowledges the document by signing it or marking it, he has adopted it.[22] This seems to be so even if the person cannot himself read the document.[23] But Justice Crawford in Curtis v R,[24] dissenting, stated that
if a person cannot read or does not read an incriminating statement but only hears a purported reading of it, he can acknowledge no more than the correctness of the words which he has heard ... a mark put to such a document by an illiterate person is a meaningless mark.[25]
He supported this proposition by reference to a dictum of Chief Justice Dixon in Dawson v R[26] that if a witness does not see a document, he cannot give admissible evidence of its contents because he is only giving an inference or opinion. In contrast, when evidence is led that a document was read (correctly) to an accused person, but he acknowledged it only orally, the weight of authority is to the effect that the acknowledgement is confined to the correctness of the reader’s statement of the contents of the document, the document itself remaining inadmissible.[27] But Justice Neasey in Curtis considered that such a document would be admissible, even if the person involved could not read the document himself:
provided there is evidence that it was read over or translated to him correctly and he acknowledged the correctness of what was read or translated to him, either orally or by appending his mark or in some other sufficient way.[28]
Nevertheless, this view was rejected by the Tasmanian Court of Criminal Appeal in Prestage and Shearing v R.[29]
118. Admissions by Silence. A problem area common to both admissions by adoption and implied admissions is that of inferences by silence. The general rule seems to be that, when a reply (denial) would reasonably be expected to a statement (accusation) in the circumstances, an adoption of the statement may be inferred from the silence of a party in response to it.[30] But where an accusation is made by a policeman after the accused has been advised of his rights,[31] the High Court held in R v Ireland[32] that the inference cannot be drawn from silence. The Judicial Committee of the Privy Council in Hall v R,[33] on appeal from the Jamaican Court of Appeal, held that no inference can be drawn from silence in the face of police questioning, even where the accused has not been advised of his rights, given his continuing common law right not to answer police questions. Lord Diplock stated the Committee’s view:
It is a clear and widely known principle of the common law ... that a person is entitled to refrain from answering a question put to him for the purpose of discovering whether he has committed a criminal offence. A fortiori he is under no obligation to comment when he is informed that someone else has accused him of an offence.[34]
However, the exact legal position in England and Australia is uncertain. The English Court of Appeal in R v Chandler[35] refused to follow the Privy Council, allowing inferences to be drawn from silence (before a caution), on the basis that the policeman involved and the appellant were on equal terms (a solicitor being present).[36] A number of Australian cases suggest that it is possible to draw inferences from silence before a police caution.[37] But Chief Justice Bray in Forrest v Normandale[38] expressly followed the Privy Council, as did Justice Campbell in R v Starr,[39] refusing to distinguish between cases where a caution has and has not been given. It is not clear whether it is possible to draw inferences against an accused from his selective refusal to answer police questions (or silence in the face of particular questions).[40] Nor is it clear whether inferences can be drawn from silence where the accusation is by a third party made in the presence of a policeman.[41]
119. An accused’s silence in response to a statement maybe used as an implied admission (to show that he is) conscious of his own guilt, whether or not it can be interpreted as an acknowledgement of the truth of the statement.[42] It may be doubted whether the spirit of the Ireland/Hall approach is compatible with the application of the ‘consciousness of guilt’ doctrine to cases where police are present, but existing Australian authority seems to go the other way.[43] Similarly, there is a long line of cases to the effect that the accused’s failure to reveal a defence leg an alibi defence) during police questioning affects its weight or at least allows a trial judge, in his summing up, to comment that this made it difficult for the Crown to test the trial defence.[44] This authority has been followed subsequently to Ireland and Hall[45] but query how the two lines of authority can be reconciled.[46] In theory, there is a distinction between pointing out that the probability of any story being true becomes greater when it has been thoroughly checked by the police and no gaping holes have been discovered, and implying that earlier silence may be taken as an indication that the account is untrue. But the line between these two comments is very thin in practice.
120. Further uncertainty has been added to this area by the decision of the Victorian Full Court in R v Salahattin.[47] A third person asserted the guilt of the accused in a room containing both the accused and police (and before any cautions had been given). The accused said nothing in response. Justices McInerney and Murray stated that there is no rule of law that the silence of a suspect with respect to allegations made by or in the presence of the police is inadmissible evidence. Rather, each case must be examined in the light of its particular facts, giving full weight to the principle to which Lord Diplock referred, in order to determine whether the tribunal of fact is to be permitted or forbidden to infer an admission from silence.[48] The question ‘depended on whether it was reasonable to infer, from the applicants’ silence, that he was admitting the truth of [X’s] allegation’ or that he so conducted himself as to show consciousness of guilt. Relevant factors would include whether the accused heard and understood the allegation, whether it concerned a matter within his personal knowledge, whether he had been cautioned and whether he remained permanently or selectively silent. It would not, for example, be reasonable to draw any inference from silence where the accused had been cautioned and refused to answer any questions. Justice Jenkinson delivered a similar judgment, stating that the evidence should not be admitted if it was not reasonably open to infer adoption or consciousness of guilt. But he suggested that such a conclusion would be influenced by ‘considerations of fairness to the accused’, or by a concern that the jury may give the inference too much weight, and also asserted that exclusion would sometimes be appropriate simply to maintain the principle referred to by Lord Diplock.[49]
121. Two Categories. There are situations in which an ‘admission’ by a third person maybe proved against a party. Cross considers that ‘as things are, it must be frankly recognised that there is no single rational basis for the reception of vicarious admissions as the subject is one in relation to which it is difficult to distinguish rules of substantive law from rules of evidence’.[50] However, two broad categories may be distinguished, based on substantive law—authorised statements and privity of interest.
122. Authorised Statement. A statement made by a person (an ‘agent’) who had actual or ostensible authority to make it on behalf of a party is admissible against that party. As Cross states, ‘the admission must have been made by the agent as part of a communication which he was authorised to have with a third party’.[51] The authority may be ‘actual’ (express or implied) or ‘ostensible’ (in the sense that that party is estopped from denying the existence of such authority). Thus, if the party puts the ‘agent’ in a position which (impliedly) holds him out as having a particular authority, then the party will be bound if the agent acts within the scope of that authority.[52] But the alleged agent’s own statement of authority would not be enough, nor any hearsay statement.[53] An authority to act is not enough, by itself,[54] and it seems that the authority of an agent to act has usually been held to be much wider than his authority to speak about his acts.[55] The position is uncertain where the admission, although unauthorised and not made in the course of an authorised communication, was made in the course of the third person’s employment in the sense in which that phrase is used in the law of torts.
123. According to most authorities, the statement of the agent must have been made to a person other than the principal.[56] In Warner v The Women’s Hospital,[57] Justice Sholl qualified this rule by stating that documents created by agents for the purpose of fulfilling a duty to make such documents for the principal’s record would be admissible against the principal.[58] However, some authorities suggest that this general limitation on the admissibility of vicarious admissions does not exist.[59] Justice Owen stated in the High Court decision of Finance and Guarantee Co Ltd v Commissioner of Taxation:[60]
At the present day when it is a common practice for a Chairman’s address to shareholders at an annual meeting of a public company to be supplied to the stock exchange and to the public through the medium of the press, it would be contrary to common sense to hold that such an address cannot be used in evidence in proceedings by a third party.
A number of specific examples of ‘authorised’ admissions may be noted:
• Companies. In the case of a company difficulties arise in deciding who has authority to make admissions on its behalf. The courts appear to approach the problem by looking to the admissible evidence placed before them in order to determine whether there exists in fact a sufficient nexus between the person purporting to speak for the company and the management of that company. At the least, the person must be shown to be actually concerned in the management of the company with respect to the activities in question. It is arguable that the admission must be authorised by the board of directors or made by an officer to whom the board has delegated authority to make a statement of the type in issue, and therefore where the board lacks constitutional power to delegate such authority the admission made by its officer is inadmissible.[61] The limitation upon the use of admissions made by officers of a company may be contrasted with the responsibility of a company for the acts of its officers who make decisions on behalf of the corporation.[62]
• Common Criminal Purpose. Acts done and statements made by another person in the absence of the accused are admissible against the accused if done or made in furtherance of a common criminal purpose (for example a conspiracy) to which both are parties.[63] The High Court stated in Tripodi v R[64] that the ‘preconcert to commit the crime is considered as implying an authority to each to act or speak in furtherance of the common purpose on behalf of the others’. There is authority that the necessary common purpose need not be proved by independent evidence before the admissions are admissible, or, rather, the necessary common purpose may be proved by the very admissions rendered admissible only by proof of the common purpose.[65] Cross asserts there is no circularity since it is a question of conditional admissibility.[66] Chief Justice King of South Australia considered in R v Corak[67] that such circular reasoning was only permissible to conspiracy charges (in contrast with substantive charges where an accused may be convicted even without proof of common purpose). But the Victorian Full Court in R v Zampaglione,[68] a conspiracy case, held that there must be independent evidence of a conspiracy, although it need only show some ‘agreement’ or ‘preconcert’ between the parties rather than the specific conspiracy alleged.[69] And the Queensland Court of Criminal Appeal in Taylor v R[70] held that there must always be independent evidence.
124. Privity of Interest. This category relates to cases in which the admission related to a subject on which the party and the person who made the statement share a privity or identity of interest or obligation. An owner of land, for example, is said to be a privy in interest to his predecessor in title, because the latter could not pass on a better title then lie himself enjoyed. A statement by the previous owner relating to the title is therefore admissible against the present owner.[71] Justice Hutley, in Jones v Sutherland Shire Council[72] explained that ‘the admission is against the interest of the former proprietor, and the successor takes the land with the burdens upon it which previously existed ...’.[73] Similarly, statements by a joint obligor or holder of a joint interest are admissible since, by substantive law, his acts can affect the obligations of the other.[74] It follows that the admission of one tenant in common, unlike a joint tenant, cannot bind another.[75]
125. Personal Knowledge of Facts Admitted. In civil proceedings, admissions which are not based on personal knowledge are admissible if there is evidence of belief in or acceptance of the fact admitted.[76] Of course, the probative value of an admission made without personal knowledge might be so slight as to warrant the judge not permitting a jury to consider the fact in question to have been proved, if the admission stands alone.[77] Where the problem arises in a criminal context, there are English authorities to the effect that such admissions are inadmissible against the accused.[78] However, a number of Australian cases have adopted the same principle as civil cases (the accused’s knowledge going only to weight) except that the court may reject the statement in the exercise of its discretion as having a low probative and a high prejudicial value.[79] But in determining whether to exercise the discretion, the authorities differ on the ‘requirement’ of personal knowledge:
• If the ‘knowledge’ of the accused of the facts he confesses is based solely on hearsay it is of ‘no evidential value in a criminal case[80]—mere opinion based on hearsay (for example that goods received are stolen or the substance he possesses is an illegal drug) is not treated as probative evidence.[81]
• A number of English and Australian cases proceed on the basis that an accused’s admissions only have probative value when concerned with his own ‘acts, knowledge or intentions’, but do not reject a statement of opinion after an investigation of the reliability of the accused’s knowledge (for example his familiarity with the drug he purports to identify).[82]
• There are some Australian cases which seem to take the approach that the truth of any admission made by the accused should be assumed, avoiding any investigation of his sources of information—at least in the absence of evidence raising a doubt as to the adequacy of the accused’s means of knowledge.[83] But this approach may not be consistent with the High Court’s decision in Burns v R[84] that a direction to a jury to presume an admission true was incorrect.
Some apparent differences no doubt derive from differing factual situations (eg it is easier to assume an accused ‘knows’ he is smoking tobacco, or perhaps even marijuana, than using an esoteric substance like heroin.[85]) Nevertheless, as in most applications of judicial ‘discretion’, distinctly different approaches are discernible.[86] Similarly, the fact that an admission was made under threats or in consequence of other pressures may greatly affect its weight, but does not appear to render it inadmissible.[87]
126. Statements of Mixed Law and Fact. Justice Mahoney in Grey v Australian Motorists and General Insurance Co Pty Ltd[88] stated that ‘an admission may provide material from which a court may find a question of law, a question of fact, or a question being a conclusion from a mixture of fact and law: See Phipson on Evidence.[89] He cited the judgment of Justice Kitto in Allen v Roughley,[90] who held that a defendant’s admission of the existence of a good title to land could be received in evidence against that defendant (even though this was a mere statement of opinion). However, Justice Glass, also in Grey, believed that ‘a party cannot be asked to admit a conclusion depending upon a legal standard ... (such) an admission [is] by definition valueless’.[91] This also seems to be the English position: Lord Chief Justice Widgery stated to Bird v Adams[92] that ‘there are many instances where an admission made by an accused person on a matter of law in respect of which he is not an expert is really no admission at all’. But, this statement may only mean that the admission has no probative value because of the accused’s lack of knowledge on the subject.
127. Self Serving Statements. The weight of authority favours the view that, as a general rule, where an admission is part of a wider statement, the whole statement is received and the party or accused may rely on its self-serving portions as evidence of the facts stated.[93] Heydon describes the legal justification for the admission of the self-serving parts as a ‘hearsay exception of a parasitic kind’.[94] Others assert that admissibility of the favourable portions is necessary to properly understand the inculpatory part and correctly assess its probative value.[95]
128. The common law applies in most jurisdictions. It imposes a voluntariness requirement and a number of exclusionary discretions. The voluntariness requirement, however, has been modified in several jurisdictions—Victoria, New South Wales, ACT, Christmas and Cocos (Keeling) Islands. It is proposed first to examine the common law and then the modifying legislation.
129. Application of Common Law Rules. It is uncertain whether the common law rules relating to ‘confessions’ encompass only full admissions of all the elements of the crime charged or extend to any admission of any element of the crime. The better view seems to be that of the House of Lords, expressed in Commissioners of Customs and Excise v Harz,[96] where Lord Reid rejected any ‘difference between confessions and admissions which fall short of a full confession’.[97] For the purpose of this discussion of the law, ‘confession’ will be taken to include ‘admission’. But there has been vagueness and inconsistency in practice as to whether the rules apply to implied admissions from conduct or admissions constituting circumstantial evidence. The rules may extend to any statement that the prosecution seeks to use in evidence against the accused. The Canadian Supreme Court has applied the voluntariness rule to an apparently exculpatory statement which was in fact a lie, and adduced to show consciousness of guilt.[98] Whether exculpatory statements adduced for some non-hearsay purpose, or as part of the res gestae, are covered is undecided.[99] It is not clear whether the rule applies only to statements adduced by the prosecution or extends to confessions adduced by a co-accused. Cross and the English Criminal Law Revision Committee think it is limited to the former situation[100] but the New South Wales Court of Criminal Appeal held in R v Attard[101] that the rule applies to evidence tendered by one defendant ‘against’ his co-accused. It was pointed out that, once admitted, such a statement becomes evidence for all purposes and is thus evidence ‘against’ another accused,[102] despite the danger that the defence of the first accused might be impeded.
130. Test of Admissibility—Voluntariness. Evidence of an alleged confession is not admissible in evidence in a criminal trial unless the trial judge is satisfied, on the balance of probabilities, that it was ‘voluntary’. The onus of proof is on the prosecution, although ‘if there is nothing to suggest that the confession was involuntary, the presumption is that it was voluntary and the onus is discharged’.[103] In England the test of voluntariness seems to be: ‘have the prosecution proved that the (confession) was voluntary in the sense that it was not obtained by fear of prejudice or hope of advantage excited or held out by a person in authority, or by oppression?’[104] But in Australia, wider formulations have been adopted. According to the High Court in R v Lee,[105] ‘the word ‘voluntary’ in the relevant connection ... means ‘made in the exercise of a free choice to speak or be silent’.’ The High Court did recognise two particular examples of involuntariness: ‘the typical case of a non-voluntary statement was the case of a statement induced by a threat or promise by a person in authority’[106] and a statement made ‘because the will of the accused has been overborne or ... made as the result of duress, intimidation, persistent importunity or sustained or undue insistence or pressure’.[107] But the court thought it necessary to emphasise that ‘there seems to be really one rule, the rule that a statement must be voluntary in order to be admissible. Any one of a variety of elements, including a threat or promise by a person in authority, will suffice to deprive it of a voluntary character.[108] This echoed Justice Dixon in McDermott v R who had argued that ‘it is perhaps doubtful whether, particularly in this country, a sufficiently wide operation has been given to the basal principle that to be admissible a confession must be voluntary, a principle the application of which is flexible and is not limited by any category of inducements that may prevail over a man’s will’.[109] This general test of voluntariness raises a number of issues:
• Must the Judge be Satisfied the Confession was in Fact Made? Justice Murphy has suggested in the recent High Court decision of Cleland v R[110] that a confession is also not admissible unless the trial judge is satisfied that it was in fact made: ‘Whether there was a voluntary confession can be treated as raising two issues: one, whether the confession was made, and two, on the hypothesis that it was made, whether it was voluntary.[111] However, it seems clear that this view does not represent the majority approach of the High Court. While the other Justices in Cleland did not consider such an argument explicitly, their analyses of the requirements of admissibility do not seem consistent with Justice Murphy’s view. Moreover, in MacPherson v R[112] Chief Justice Gibbs and Justice Wilson stated that the ‘question whether a confession was made is entirely one for the jury’.[113] And Justice Brennan considered in the same case that ‘the trustworthiness of a confession is ordinarily a matter to be left for the jury’s consideration’.[114]
• ‘Free Choice’? It is not certain what ‘free choice’ means in this context. In particular, the authorities have not made it clear whether the accused must appreciate that he or she possesses a right to speak or remain silent and actually consider that choice before confessing. Where factors influence the accused to confess, it is unclear whether they must destroy his ability to choose altogether or whether it is enough that he would not have chosen to confess in the absence of a particular influence.[115] It is not clear whether the courts should consider the capacity of the accused to come to a considered decision as to whether or not to speak, and what to say. A related question is whether the finding of voluntariness is justified by the accused’s condition irrespective of how the condition arises. If the accused is unable to exercise a ‘free choice to speak or be silent’[116] it would seem irrelevant whether or not such inability was caused by external factors. This appears to be the view of a number of decisions dealing with accused persons suffering from reduced levels of consciousness (eg mental illness, drunkenness—see later). Nevertheless, the weight of authority appears to require a causal connection between some external factor and the accused’s confession.[117] The accused is assumed to have acted from a conscious choice unless that choice is ‘overborne’.[118] Voluntariness is defined negatively—if a confession is not the product of external factors it is regarded as voluntary.[119]
• Must Conduct be Improper? Where external conduct influences an accused to confess, it is unclear whether such conduct must also be regarded as improper to render a confession involuntary. The English Court of Appeal in R v Isequilla[120] stated that ‘under the existing law the exclusion of a confession as a matter of law because it is not voluntary is always related to some conduct on the part of the authority which is improper or unjustified’ eg inducements, oppression.[121] The House of Lords in DPP v Ping Lin[122] repudiated this statement of the law though the actual decision in Isequilla was regarded as correct. But it is not as clear in Australia that police misconduct or impropriety is not essential. Despite the general formulations of the voluntariness rule, Australian courts have consistently concentrated on particular instances of its breach, on the need to isolate some particular impropriety on the part of police officers which interfered with the exercise of the suspect’s free choice to speak or remain silent. Thus the Full High Court in Lee[123] identified duress, intimidation, persistent importunity and sustained or undue pressure as matters which could render a confession involuntary through ‘oppression’.[124] Other cases seem to have specifically required police misconduct (defined widely as conduct ‘reasonably calculated to induce a confession’)[125]: ‘it is in each case a question of fact whether the confession emanated from the will of the confessor or resulted from the overthrow of that will by an act upon which the law frowns’.[126] Nevertheless, several Australian authorities have stated that police impropriety is unnecessary (if not irrelevant).[127] Similarly, there are authorities which turn on the failure of the police to take positive steps to ensure that an accused who falls within a particular category is not overborne.[128]
131. Relationship between General Rule and Traditional Categories. The relationship between general formulations of the voluntariness rule and specific examples of its application has not been clearly determined. There seems to be a strong tendency to emphasise the latter at the expense of the principle—see the House of Lords test in DPP v Ping Lin (above). With this in mind, specific aspects of the rule will be examined.
• ‘Inducements’. In Cornelius v R,[129] Justices Dixon, Evatt and McTiernan stated that a confession ‘is not voluntary if it is given as a consequence of a threat made, or a promise of advantage given, in relation to the charge by a person in authority ...’. But Justice Dixon in McDermott v R[130] adopted a somewhat wider approach: a confessional statement ‘cannot be voluntary if it is preceded by an inducement held out by a person in authority and the inducement has not been removed before that statement is made.[131] A number of problems are reflected in these two statements of law:
(a) What Constitutes an ‘Inducement’? An inducement may take the form of some fear of prejudice or hope of advantage exercised or held out by a person in authority.[132] But while inducements extend beyond threats or promises, their exact nature is unclear—Lord Hailsham doubted in DPP v Ping Lin[133] whether the term inducement was particularly helpful. Two different approaches are taken to the scope of the concept:
(i) Traditionally, trivial inducements, ‘even the most gentle threat or slight inducement’ have been held capable of rendering a confession inadmissible.[134] Thus Justice Gibbs (as he then was) stated in R v Beere[135] that ‘it has long been held that statements to a person that it would be better for him to tell the truth or that a statement made would be for his benefit, are inducements having the effect of rendering a subsequent confession involuntary.’[136]
(ii) Vague inducements are insufficient to vitiate a confession.[137] Some English cases have stated that the inducement must be of a temporal (secular) character.[138] The New South Wales Court of Criminal Appeal in R v Bodsworth[139] stated that the words ‘You had better tell the truth constitute a simple ‘exhortation to tell the truth’ rather than an improper inducement. The Court thought it desirable ‘to avoid putting ingenious constructions on colourless words so as to detect a hint of improper inducement, as was one time the case, but rather to construe the words only according to their natural, obvious and commonsense meaning.[140] It is well established that the likely reliability of a confession following an inducement is irrelevant[141] but there seems to be a conflict between those who would require the words to be a ‘real inducement’ on a reasonable man test[142] and those who emphasise that even the most innocent words may ‘induce’ a confession.[143]
(b) Formulations of Test. Inter-related with the issue of what may constitute an ‘inducement’ is the question whether the test for this head of involuntariness is subjective or objective. Two distinct formulations seem to hate been adopted:
(i) A confession cannot be voluntary if it is preceded by an inducement (in the second of the above senses) unless the inducement is shown to be removed.[144] This approach does not require proof that the inducement induced the confession. It may derive from semantic ambiguity and is doubtful law, particularly given its apparent inconsistency with the general concept of voluntariness.
(ii) A confession will be involuntary If the inducement actually induces (causes) the confession.[145] But it is not clear whether the inducement must be the sole cause, or the main cause, or just one of the causes of a confession.
(c) ‘Person in Authority’ Requirement. A major issue is whether ‘inducement by a person in authority’ is simply an example of conduct resulting in a finding of involuntariness or actually limits the circumstances in which such a finding can be made[146]:
(i) English Authority. The Privy Council has held in Deokinanan v R[147] that an inducement can only operate to make a confession inadmissible if it comes from a ‘person in authority’.[148] The House of Lords seems to offer a potentially wider view in DPP v Ping Lin[149]—the decision, however, is ambiguous.
(ii) Australian Authority. Formulations of the ‘inducement’ rule invariably require that it come from such a person in authority[150] but it has not been authoritatively determined that an inducement from a person not in authority cannot render a confession involuntary. Indeed the general statements of the High Court in McDermott and Lee seem to indicate that the reverse is true although the actual discussions are ambiguous.[151] However, Justice Isaacs in Attorney-General for NSW v Martin[152] stated that: ‘It is the ‘person in authority’ that governs the position’ and Justice Muirhead in Collins v R[153] stated that ‘it is only an inducement offered by [a person in authority] or by another in the presence of such a person, which will be excluded in Australia’.
There is no authoritative definition of a ‘person in authority’. Suggested definitions have ranged from ‘a person who has influence over the prosecution[154] to ‘anyone whom the prisoner might reasonably suppose to be capable of influencing the course of the prosecution[155] to a ‘person most interested in the matter’.[156] Justice Dixon in McDermott v R[157] stated that the ‘expression ‘person in authority’ includes officers of police and the like, the prosecutor, and others concerned in preferring the charge’, but Viscount Dilhome in Deokinanan v R adopted a wider definition of ‘anyone who has authority or control over the accused or over the proceedings or the prosecution against him’. It seems that a person may be constructively in authority eg if an inducement is held out by someone not in authority in the presence of someone who is, a confession may be inadmissible unless the person in actual authority disassociates himself from the inducement.[158] It is unclear whether the same conclusion follows where a person in authority encourages a third person to make an inducement (in the former’s absence) to the accused,[159] or where the accused simply believes, subjectively, that another is a person in authority.[160] Query also whether an ‘inducement’ may be constituted by a suggestion from the accused to the police (ie there is no offer from the police to him). English authorities have held that the rule applies with equal force when the police do not reject the suggestion[161] but the NSW Court of Criminal Appeal held in R v Clark[162] that the inducement must be ‘held out’ by a person in authority. It is not enough if the accused raises such a possibility himself.[163] Finally, query the position when the person who took the statement from the accused was in fact a person in authority, but the accused was unaware of the person’s true status.[164]
(d) Inducement ‘in Relation to the Charge’. The House of Lords has stated categorically that it has ‘never been part of the law of England’ that an inducement must relate ‘to the charge or contemplated charge against the accused’.[165] There are Australian authorities which have also refused to recognise such a limitation on the concept of inducement.[166] And while the High Court in Cornelius v R[167] required the threat or promise to relate to the charge,[168] such a condition was absent in later High Court formulations of the rule.[169] But there are State court decisions adopting such a limitation on the concept of inducement.[170] The NSW Court of Criminal Appeal in R v Bodsworth[171] thought that it was ‘open to question whether the inducement must be connected with the accusation (ie charge)’.[172]
(e) ‘Inducement ... Removed’. An inducement will not render a confession inadmissible if it has been removed or become ineffective before the confession is made. Some cases have held that lapse of time may do this.[173] In R v Clark[174] it was held that a caution could negative the effect of an inducement.[175] But the Privy Council in Sparks v R[176] held that the caution given in that case had no effect opt the inducements held out and, in fact, marked the moment when they became effective.[177] It could be argued that in most cases a caution is not really directed at undoing the effect of an inducement.[178] The general tendency is to require clear proof that the inducement was removed.[179]
• ‘Untrue Representations’. There has been little authority on the question of whether a confession is rendered involuntary and inadmissible if made subsequent to an untrue representation.[180] Justice Dixon in McDermott v R[181] was of the view that the NSW legislative provision as to untrue representations possibly extended the common law rule’ and the High Court in Basto v R[182] implied that such representations do not fall within the common law concept of voluntariness. However, there is some recent authority in both England and Australia which indicates that trickery, including untrue representations, is relevant to voluntariness.[183]
• ‘Oppression’. In England, as already noted, the test of voluntariness seems to be: ‘have the prosecution proved that the [confession] was voluntary in the sense that it was not obtained by fear of prejudice or hope of advantage excited or held out by a person in authority, or by oppression.[184] Despite the view of the English Court of Appeal implied in R v Isequilla[185] that ‘oppression’ must also come from a ‘person in authority’, the above quotation makes it clear that no such limitation operates. This also appears to be the position in Australia.[186] Justice Cosgrove in R v Oates[187] thought that the words ‘or by oppression’ seemed ‘to be referring the reader to the more general concept which Justice Dixon (as he then was) expressed in McDermott v R[188] ‘... the basal principle that to be admissible a confession must be voluntary, a principle the application of which is flexible and is not limited by any category of inducements that may prevail over a man’s will’.’[189] However the more common approach to oppression is to limit it to abuse of power. The High Court in Cornelius v R[190] stated that a confession is not voluntary ‘if it is made as a result of violence, intimidation, or of fear’ and Justice Dixon in McDermott identified situations where ‘the will of the accused has been overborne or his statement made as the result of duress, intimidation, persistent importunity or undue insistence or pressure’.[191] While there is no doubt that ‘the oppression’ must actually operate to make the confession involuntary, in that it ‘should be attributed not to (the accused’s) own will, but to his inability further to endure the ordeal and his readiness to do anything to terminate it’,[192] the tendency is for emphasis to be placed upon the impropriety of (police) behaviour. Nevertheless, greater recognition is being given to the significance of psychological, rather than physical, pressure.[193]
132. Relevance of ‘Personal Characteristics’. There is no doubt that the personal characteristics of the accused interact with any pressure or inducements to which he is subjected.[194] Thus, for example, a court is more likely to find that a mentally retarded person’s confession is involuntary than a normal person’s when offered a particular inducement.[195] But there are at least two difficulties. It is far from clear whether confessions by special categories of accused may be found involuntary without any police misconduct (or, indeed, any ‘external’ factor) operating upon the will of the accused, and if so, it is uncertain what tests (if any) are used in such situations to determine the voluntariness question.
133. State of Mind. The leading Australian decision in this area is Sinclair v R.[196] While Chief Justice Latham asserted that ‘mental aberration’ by itself could not affect admissibility (implying it was a matter for judicial discretion),[197] the other judges, apart from Justice Rich, who did not really consider the issue, seem to have held with varying degrees of clarity that state of mind may go to admissibility (independently of external factors). Justice Starke implied that confessions which were ‘the result of a disordered mental condition’ would be inadmissible[198] and Justice McTiernan held that the question was whether ‘at the time the accused made each confession he was not rational enough to make a true confession’.[199] However, by putting the onus on the accused to establish such irrationality, Justice McTiernan might be seen to be adverting to the discretion, despite expressly dealing with the question of admissibility. The judgment of Justice Di Kon (as he then was) is complex, but he did state that a ‘confession is not necessarily inadmissible as evidence upon a criminal trial because it appears that the prisoner making it was at the time of unsound mind’.[200] Perhaps he was referring to the possible additional presence of police improprieties. While it might be possible to infer from Sinclair that an accused’s mental condition by itself may, if extreme, make his confession involuntary, it is difficult to extract the ratio of the case. It should be noted that Justice Brennan believed in Collins v R[201] that Sinclair was consistent with the view that admissibility (voluntariness) is determined only by the effect of ‘external’ factors, like coercion and inducement, upon the will of the accused. The High Court has complicated the question even further by stating in Basto v R[202]
the evidence of what (the accused, soon afterwards declared insane) said could not have been excluded on the common law ground that it consisted of confessional statements that were not voluntarily made ... the accused’s will was not overborne nor was there any inducement ...’[203]
There are State authorities which appear to hold that an accused’s state of mind cannot, without more, render his confession involuntary (the question being therefore only one of exercise of the judicial discretion).[204] But there are numerous British Commonwealth and State decisions where it has been held that the accused’s mental state may (by itself) snake his confession involuntary.[205] Some of the different tests advanced in these cases include:
• incapable of appreciating the full extent and purpose of his words, or of doing justice to himself in his answers to questions put to him;[206]
• incapable of appreciating that he had a choice to remain silent, or incapable of exercising sufficient volition to give effect to what he knew was such a right of choice;[207]
• in such a mental condition that the utterances were completely unreliable;[208]
• not rational enough to make a true confession;[209]
• in such a condition that he was not competent to give evidence;[210]
• in a state of ‘complete emotional disintegration;[211]
• so plainly unaware of his surroundings, of the identity of his interrogator, and of the drift of the questions put, that he is incapable of choosing whether to speak or not and is just gabbling’.[212]
134. Children. The courts have generally emphasised the importance of the fact that an accused is a child when determining the issue of voluntariness.[213] It is unlikely that any Australian court would admit an accused child’s confession which was not made in the presence of an independent adult. But, apart from this proposition, there are variations in approach. In England it is simply stated that stronger evidence is required to show that the statement was voluntarily made if no parent was present.[214] In Victoria, it has been held that a failure to give the caution did not affect the voluntariness of the confession[215] while in NSW it would seem that not only should the parents be present but also the caution explained to the accused.[216] The Queensland courts have closely scrutinised confessions obtained from children and have adopted a number of guidelines directed to ensuring that a child is not overborne.[217] There does not need to be anything positive in the conduct of the police that could be said to oppress the child for the confession to be held involuntary.[218] Rather, the Queensland cases turn on the failure of the police to take sufficient action to ensure that the child is not overborne.[219] A similar approach is now taken in Western Australia.[220]
135. Aborigines. There are considerable variations in approach:
• Northern Territory. In R v Anunga[221] Chief Justice Forster, with the approval of the other Justices of the Supreme Court, laid down general guidelines for the conduct of police when interrogating aboriginal persons (and generally applicable to migrants). The guidelines require, among other things, the presence of a ‘prisoner’s friend’ and great care in administering the caution. The rules appear to go to voluntariness as well as exercise of discretion, so that breach of them may lead a court to conclude that the aboriginal did not appreciate his right to remain silent or was unable to exercise that right.[222] However, it is important to note that in R v Collins,[223] Justice Gallop had found a confession was voluntary despite several breaches of the Anunga Rules. This decision was upheld on appeal to the Federal Court.[224] Justice Muirhead in the Federal Court approved[225] the view of Justice Wells in the South Australian case of R v Williams[226] that the interviewee’s determination to answer all questions ‘can never, of itself’ render his confession involuntary ‘unless that determination resulted from a threat or an inducement held out by a person in authority ... It is immaterial that the determination was a product solely ‘of internal pressures or internal motives’.’ Justice Brennan, who dissented, did not limit the categories of conduct which may render a confession involuntary and rejected the need for any kind of impropriety but also emphasised that a confession may only become involuntary as a result of some police conduct[227]
• South Australia. The South Australian Police Commissioner has issued guidelines for questioning aboriginal suspects, which are not as comprehensive as the Anunga Rules. They have not significantly affected the determination of questions of voluntariness (although they are relevant to exercise of the discretion). The reason for this seems to be the approach of the courts to the voluntariness rule which requires serious police impropriety (misconduct) in order to make a confession involuntary. Failure to accord with the guidelines, unless it is part of police misconduct in the form of violence, threats or inducements, is not enough.[228] But note that Justice Wells stated in R v Williams[229] that the characteristics of the individual aboriginal will be relevant (not decisive) if the interrogating officer was aware of such characteristics. This may represent a move away from the need for serious police impropriety and a recognition of the importance of looking at the particular interviewee, a move seen more clearly in recent South Australian cases dealing with the interviewee’s state of mind.
• NSW. There are no special rules to assist aborigines in their dealings with the police and the Anunga Rules have not been applied. In Dixon v McCarthy,[230] Justice Yeldham thought irrelevant the fact that the juveniles accused were aboriginals:
they were entitled to the same treatment at the hands of the police, and to the same measure of justice from the court, as are boys who are not of aboriginal descent, no more and no less.[231]
But, in McKellar v Smith,[232] Justice Miles stated that Aboriginal descent would be relevant to the question of voluntariness (and discretion). He noted that ‘an Aboriginal person may be at a substantial disadvantage in the interrogation process’ and considered that courts should take into account the provisions of the Racial Discrimination Act 1975 (Cth) and various relevant international Instruments.[233]
136. Statutory Modifications. Statutory modifications have been made in ACT, New South Wales, Victoria and Queensland. Section 149 of the Evidence Act, 1958 (Vic) provides in part:
149. No confession which is tendered in evidence shall be rejected on the ground that a promise or threat has been held out to the person confessing, unless the judge or other presiding officer is of opinion that the inducement was really calculated to cause an untrue admission of guilt to be made.
It seems clear from the High Court’s judgement in R v Lee[234] that s 149 does not apply to a ‘false denial’ by the accused. It could also be argued that it does not apply to an ‘admission’.[235] The High Court in Basto v R[236] stated that most promises of advantage are ‘not of such a kind as often will be really likely to result in a prisoner’s making an untrue confessional statement’. ‘Really calculated to cause an untrue confession of guilt to be made’ is an objective test, so that the question is whether the threat or inducement was ‘really likely’ to cause an untrue confession.[237] Whether or not the confession was in fact true is not in issue.[238] No confession saved from inadmissibility as involuntary by s 149 can be excluded in the exercise of the judicial discretion.[239]
Section 68 of the Evidence Ordinance, 1971 (ACT) provides:
68. (1) Subject to the next succeeding sub-section, a confession or admission made by a person charged in a criminal proceeding is not admissible in evidence against that person unless it was made voluntarily by that person.(2) A confession or admission tendered in evidence against the person charged in a criminal proceeding shall not be rejected only on the ground that a promise, threat or other inducement (not being the exercise of violence, force or other form of compulsion) has been held out to or exercised upon the person making the confession or admission, if the judge is satisfied that the means by which the confession or admission was obtained were not in fact likely to cause an untrue admission of guilt to be made.
(3) The judge has, in a criminal proceeding, a discretion to reject a confession or admission (whether or not it is a confession or admission to which the last preceding sub-section applies) made by the person charged if, having regard to the circumstances in which, or the means by which, the confession or admission was obtained, the judge is satisfied that it would be unfair to the person charged to admit the confession or admission in evidence.
137. Waight and Williams point out that:[240]
The expressions ‘or other inducement’ and ‘or other form of compulsion’ in s 68(2) are obscure. It may be, having regard to the legislative history of s 20 of the Evidence Act 1908 (NZ), that these expressions were only intended to save implied as well as express threats or promises from rejection (and see R v Naniseni [1971] NZLR 269, 274); but the terms are of course susceptible of afar wider interpretation.
It appears that s 68(2), like the Victorian provision, imposes an objective test.[241] However, unlike the Victorian provision, the onus of proof is on the prosecution to establish that an untrue confession was not a likely result of the inducement. Also unlike the Victorian provision, s 68(2) applies only to cases in which the confession would have been excluded at common law on the ground that it had been induced by a threat or promise made or given by a person in authority and on no other ground. Other cases covered by the common law (for example confessions unfairly obtained) remain unaffected.[242]
138. In New South Wales, Section 410 of the Crimes Act, 1900, states:
410. (1) No confession, admission, or statement shall be received in evidence against an accused person if it has been induced—(a) by any untrue representation made to him by the prosecutor, or some person in authority; or
(b) by any threat or promise, held out to him by the prosecutor, or some person in authority.
(2) Every confession, admission, or statement made after any such representation or threat or promise shall be deemed to have been induced thereby, unless the contrary be shown.
(3) Provided that no confession, admission, or statement by the accused shall be rejected by reason of his having been told, by a person in authority, that whatever he should say might be given in evidence for or against him.
The provision expressly applies to all statements by the accused that the prosecution seeks to use in evidence. Unlike the provisions considered above, it restates and complements the common law. Section 410(1)(a) may extend the protection given to the accused by the common law. The ‘untrue representation’ must have been known to be untrue by the person in authority and made by him with the object of obtaining a statement from the accused.[243] The provision operates only in respect of crimes already committed, so that statements which themselves constitute the crime (for example conspiracy) will not be excluded under it, although they were made as a consequence of police trickery.[244] In Norfolk Island, s 410 of the Crimes Act 1900 also applies but the words ‘by the prosecutor, or some person in authority;’ have not been included in sub-section (1)(a). in Queensland, Section 10 of the Criminal Law Amendment Act, 1894, provides:
no confession which is tendered in evidence on any criminal proceeding shall be received which has been induced by any threat or promise by some person in authority, and every confession made after such threat or promise shall be deemed to have been induced thereby unless the contrary be shown.
The provision applies only to ‘confessions’.[245] Like the NSW provision, this section merely restates part of the common law.[246]
139. Legislation have also been adopted in Queensland and Western Australia relating to admissions by Aborigines:
• Queensland. Section 34(1)(a) Aboriginals Preservation and Protection Acts, 1939:
an admission ... obtained from any aboriginal ... shall not be admissible ... unless the judge is satisfied that the aboriginal understood the meaning of his statement or confession and that such statement or confession was obtained voluntarily, and without duress or pressure or any sort.[247]
• Western Australia. Section 49(l) Aboriginal Affairs Planning Authority Act, 1972:
... the court ... shall refuse to admit ... an admission ... in any case where the court is satisfied ... that he is a person of Aboriginal descent who from want of comprehension of the nature of the circumstances alleged ... was not capable of understanding ... that admission.[248]
140. As to children, s 128(2) of the Community Welfare Act, 1982 (NSW) provides that an admission obtained from a child in a police station shall not be admissible unless there was present at the time of the admission a parent or guardian of the child, a legal practitioner or an independent adult who is not a police officer. There is an exception in cases where the court is satisfied that there was a ‘proper and sufficient reason’ for none of the specified independent persons to have been present. The NSW Court of Criminal Appeal has decided in R v Warren[249] that where a person under the age of eighteen makes a number of ‘statements’ in a police station over a period of time some of which are made in the presence of a prescribed person and others which are not, the section operates to exclude the latter only. However, as Justice Roden decided in R v Graves,[250] the court may still exclude the evidence if it is not satisfied ‘in the particular circumstances of the case’ that it would be fair to admit it. He commented on the fact that the provision neither authorises nor encourages the independent adult to take an active role in advising the child of his or her rights and in ensuring that they are understood.
141. Admissibility of the Evidence and the Confession. Where evidence is discovered as a consequence of an involuntary confession there are conflicting authorities on the admissibility of both that evidence and the (otherwise inadmissible) confession:[251]
• Total inadmissibility. There have been a few cases[252] in which a court has held inadmissible evidence of both the confession and the resultant discovery (emphasising deterrence of official misconduct at the expense of probative evidence). However, these are unlikely to be followed in Australia where it has been held that illegally or unfairly obtained real evidence is, if relevant, admissible as a matter of law, although subject to a judicial discretion to exclude.[253]
• Admission of the discovered real evidence alone. Incriminating real evidence discovered as a result of an inadmissible confession is, subject to discretion of the trial judge, admissible. But the confession remains inadmissible and no reference at all may be made to the accused’s involvement in the discovery of the real evidence.[254]
• Admission of evidence of source of information. Admission of the discovered real evidence and evidence linking its discovery with something the accused said (ie an indirect speech version of the portion of the admissible confession which resulted in discovery of the real evidence).[255]
• Admission of relevant portion of confession. Admission of the discovered real evidence together with the relevant portion of the confession which led to the discovery[256] (or is confirmed by the subsequently discovered evidence).[257]
• Admission of the entire confession. There is some authority for the proposition that where real evidence is discovered the whole confession is rendered admissible because the discovery justifies the inference that the confession was true.[258]
142. Relevant to the area of confessions, Australian law includes a general ‘fairness’ discretion (usually expressed in terms of balancing probative value and prejudice), a general public policy discretion to exclude illegally or improperly obtained evidence, and a specific discretion to exclude otherwise admissible confessions (the ‘Lee’ discretion). There also seems to be a limited discretion to exclude evidence from the jury room.[259]
143. Probative Value and Prejudice. Evidence of a confession may be excluded if it is more prejudicial than probative.[260] This discretion applies to all evidence adduced by the prosecution in a criminal case. A number of areas may be considered specifically:
• Statements Made to or in the Presence of the Accused. One approach to the admissibility of statements made in the presence of the accused, but not acknowledged by him, is to admit them automatically subject to exclusion under a judicial discretion.[261] Although the weight of authority deals with such a statement under the rubric of relevance, a number of Australian decisions exclude it ‘on the ground that its prejudicial effect far outweighed its probative value[262] or because ‘the evidence had little bearing upon the case and might operate seriously to the prejudice of the accused. [263]
• Unsigned Records of Interview. In Driscoll v R[264] Justice Gibbs (with whom Justices Mason and Jacobs agreed) considered that an unsigned record of interview ‘will add nothing to the weight of the testimony of the police officers who give oral evidence as to what was said in the course of the interrogation, and will in itself be of little evidential value. Moreover, it may be gravely prejudicial:
The danger is that a jury may erroneously regard the written record as in some way strengthening or corroborating the oral testimony. Moreover the record, if admitted, will be taken into the jury room when the jury retire to consider their verdict, and by its very availability may have an influence upon their deliberations which is out of all proportion to its real weight.
Justice Gibbs considered that it will sometimes be desirable to exclude unsigned records of interview (ie the written record, not oral evidence of the interview) ‘in the interests of justice’, because the ‘paramount requirement is that the trial should be conducted fairly.’[265] But he did recognise that there would be cases in which ‘it would be plainly right’ to admit an unsigned record of interview. One example was ‘if it had been acknowledged by the accused in the presence of some impartial person such as a magistrate, not connected with the interrogation ...’. The other members of the High Court adopted similar, but distinct, views. Justice Murphy agreed with Justice Gibbs but added that ‘a trial judge’s discretion to exclude admissible evidence should generally be exercised against the admission of an unsigned record of interview where the accused disputes its correctness,[266] while Chief Justice Barwick, although considering that the record may have an ‘undue influence’ in the jury room, emphasised that ‘in determining what is fair in the circumstances, the judge must not lose sight of the interest of the Crown as representing the community in the conviction by due and fair process of those who break the law.[267] State courts seem to have minimised the significance of Driscoll, holding that it leaves unqualified the discretion of the trial judge with respect to unsigned records of interview.[268] Some judges have, however, argued that Driscoll comes close to reversing the onus—that ‘some positive reason should be established [by the prosecution] before the possibility of the prejudice referred to is permitted by the admission of an unsigned record’.[269]
• Admission of Facts Known to the Police. The High Court stated in Burns v R[270] that the discretion should generally be exercised where the accused ‘admits only facts already known to his interrogators.[271] In R v Lattouf[272] Moffitt P pointed out that it was not the confession itself, but facts sought to be adduced to support the reliability of the confession, which might be excluded under the judicial discretion.[273] It should also be noted that the evidence may be relevant to some other issue at the trial, and therefore admissible. Furthermore, the evidence may become relevant to the issue whether the confession was in fact made because of the nature of the accused’s account of his or her encounter with the police. The evidence of newly acquired wealth claimed to be objectionable in Burns was held to be relevant to the issue whether the accused was truthful when he said that he had not been questioned at all by the police, since it was likely the police would have questioned the accused about the source of the money.[274]
• Statements by Persons with Abnormal Personal Characteristics. In England, the probative value—prejudice discretion has been used to exclude the confessions of the mentally retarded.[275] The Court of Appeal endorsed this approach in R v Isequilla.[276] In Australia, some decisions have dealt with the problem in this way, emphasising the danger that the confession is untrue,[277] but most have adopted either a voluntariness or fairness analysis.
• Allegations of Fabrication. A much more difficult question is whether a trial judge may exercise the discretion where he is satisfied that the confessional evidence was fabricated. Reliability goes to weight, but an unreliable confession is of low probative value, which may be outweighed by ‘prejudice’. If the concept of prejudice is limited to taking into account irrelevant considerations the discretion would not be applicable, but if it extends to potential misestimation of probative value by the jury then exclusion may be justified.[278]
144. Discretion to Exclude Illegally or Improperly Obtained Evidence. In Bunning v Cross[279] the High Court held that there is a judicial discretion to exclude illegally or improperly obtained evidence on public interest grounds.[280] Despite some earlier doubt, the High Court in Cleland v R[281] unanimously held that the ‘principle of Bunning v Cross is not limited to real evidence but extends to confessional evidence’.[282] Justice Dawson agreed with Justices Stephen and Aickin in Bunning v Cross that fairness played a greater role with respect to confessional than real evidence, since the method used to obtain the former is more likely to affect its reliability.[283] But this distinction did not prevent application of the ‘public policy’ discretion after a consideration of whether the confessional evidence should be excluded on grounds of fairness.
The rule in Bunning v Cross posits an objective test, concerned not so much with the position of an accused individual but rather with whether the illegal or improper conduct complained of in a particular case is of sufficient seriousness or frequency of occurrence as to warrant sacrificing the community’s desire to see the guilty convicted in order to express disapproval of, and to discourage, the use of unacceptable methods in achieving that end.[284]
But despite agreement that Bunning v Cross was relevant to confessions, the High Court differed over the application of such a discretion. Chief Justice Gibbs and Justices Wilson and Dawson considered that it would be ‘most exceptional’ to exclude a voluntary (and fairly obtained) confession on this basis.[285] Justice Deane considered that the rationale of the principle was to be found in the ‘undesirability that such unlawful or improper conduct should be encouraged either by the appearance of judicial approval or toleration of it or by allowing curial advantage to be derived from it’, but that the onus of persuading the trial judge to exercise the discretion lay on the accused.[286] Nevertheless, he did not think it clear that exclusion was not appropriate on the facts:
where a confession has been procured while the accused was unlawfully imprisoned by the police, special circumstances, such as the illegality being slight, would commonly need to exist before the balancing of considerations of public policy would fail to favour the exclusion of evidence of the confession.[287]
Justice Murphy stated that the onus (to the balance of probabilities) lay on the accused to prove that the (confessional) ‘evidence was obtained by unlawful or improper means’. But
where a confession was obtained by unlawful or improper conduct then, in my opinion, the evidence should generally be excluded. Such a course will tend to preserve observance of law (see Mapp v Ohio [1961] USSC 142; 367 US 643 (1961)) and decency in its administration. A confession or admission resulting from an interrogation whilst in unlawful custody should ordinarily be rejected on public policy grounds.[288]
145. Discretion to Exclude Admissions on Unfairness Grounds. In McDermott v R,[289] Chief Justice Latham stated that a trial judge has a ‘discretion to reject a (voluntary) confession ... if ... in all the circumstances it would be unfair to use it in evidence’ against the accused. Justice Dixon (as he then was) thought that the trial judge ‘should form a judgment upon the propriety of the means by which the statement was obtained by reviewing all the circumstances and considering the fairness of the use made by the police of their position in relation to the accused.[290] The Full High Court in R v Lee[291] thought that ‘the rule’ was ‘fully and adequately stated in these two passages’, although they preferred not to separate police impropriety from fairness. ‘It is better to ask whether, having regard to the conduct of the police and all the circumstances of the case, it would be unfair to use his own statement against the accused.[292]
146. The application of the discretion is uncertain. This derives principally from uncertainty about the policy behind the discretion. These formulations of the judicial discretion to exclude a voluntary confession, raise a number of questions because of their vagueness. Justice Dixon emphasised ‘the principle that no one should be compelled to incriminate themselves,[293] while Chief Justice Latham implied by his suggested examples of unfairness that the danger was of unreliable, albeit voluntary, confessions (‘examples of such unfairness would be afforded by irresponsibility of the accused on the occasion when the statement was made or failure on his part to understand and appreciate the effect of questions and answers.’)[294] The Full Court in Lee mentioned both these considerations and also quoted Justice Street (as he then was) in R v Jeffries:[295]
The obligation resting upon police officers is to put all questions fairly and to refrain from anything in the nature of a threat, or any attempt to extort an admission.[296]
Nevertheless the High Court’s view seemed to be that it was not concerned per se with any public policy to discourage unfairness or impropriety among police officers.[297] The High Court stated in Lee that the tendency to take the Judges Rules ‘as a standard can easily develop into a tendency to apply rejection of evidence as in some sort of sanction for a failure by a police officer to obey the rules of his own organization, a matter which is of course entirely for the executive.[298] Rather, the basis was unfairness to the accused, the circumstances under which the confession was made indicating that it was ‘unfairly extracted’ and ‘unreliable’.[299] But Chief Justice King of the SA Supreme Court in R v Szach[300] stated,
Honesty is to be demanded of the police and other law enforcement agencies at all times. Falsehood, express or implied, and dishonest trickery must always bring the condemnation of the courts however worthy the ends sought to be achieved by such methods. The end can never justify such means and the courts must be ever ready to use the discretion to exclude evidence obtained by such means, even if technically admissible, in order to preserve the stream of justice from pollution and protect the citizen from the possibility of oppression.
The decision of the High Court in Bunning v Cross injected considerable uncertainty into the scope of this Lee discretion, with State courts not only unsure whether the Bunning discretion applied to confessions[301] but unsure how the two discretions could be reconciled. The South Australian Supreme Court has generally held that the ‘unfairness’ and ‘public policy’ tests should both be applied, independently,[302] while the Western Australian Court of Criminal Appeal in Frijaf v R[303] seemed to combine the two tests into one discretion.[304] Different members of the Federal Court in Collins v R[305] reflected these two positions.[306]
147. Additional confusion has been added by the recent High Court decision of Cleland v R[307] a case in which the accused was held in police custody unlawfully for a number of hours and allegedly confessed during that period. While it was agreed that a trial judge has a discretion to reject a voluntary confession if he considers that it would be ‘unfair to use it against the accused,[308] the respective justices gave differing expositions of the content of this ‘fairness’ discretion, and applied it differently. It may be tentatively concluded that two High Court justices (Chief Justice Gibbs and Justice Wilson) see the discretion in terms of improper police pressure, one (Justice Deane) sees it in terms of procedural or substantive fairness, another (Justice Dawson) as a question of reliability,[309] and yet another (Justice Murphy) as an aspect of the general discretion to exclude evidence more prejudicial than probative. It is interesting to note that Justice Brennan, now a member of the High Court, expressed the view in the Federal Court decision of Collins v R[310] that ‘the room for the operation of the discretion is narrower ... than is, frequently supposed’, but that the ‘circumstances’ and ‘factors’ taken into account in exercising the discretion are numerous, including ‘the interest of the Crown as representing the community in the conviction by due and fair process of those who break the law’.[311]
148. Many of the matters raised in relation to the voluntariness of the confession are relevant to the exercise of the court’s discretion. Indeed, the distinction between the two issues is blurred. Several High Court justices have suggested that ‘a discretion might be exercised to exclude evidence of what was, on a bare balance of probabilities, a voluntary confession, although if it were beyond doubt it would not be excluded’.[312] Moreover, it is likely that Justices Murphy and Deane would take into account doubts as to the making of a confession, as well as its voluntariness, in exercising the discretion.[313] Other considerations to note are:
• Improper Methods of Interrogation. The High Court has emphasised that police ‘impropriety’ is not enough by itself to constitute unfairness to the accused in the circumstances. What would constitute unfairness in admitting a statement obtained by improper methods must depend upon the circumstances of each case. No attempt should be made to define and thereby limit the extent or the application of the discretion.[314] Moreover, it is not clear whether impropriety is a necessary pre-condition to exercise of discretion. There is no doubt that as circumstances vary, so do the standards of behaviour required of the police: accused’s mental condition;[315] children;[316] Aborigines.[317] Thus, even questioning someone to obtain a confession may in some circumstances constitute an impropriety (for example an irrational person).[318] The South Australian Full Court has refused to limit the judicial discretion ‘to a power to exclude evidence where unfairness to the accused lies in impropriety on the part of police, or of other law enforcement officers, and its effects.’[319] The Court suggested cases where the discretion might be exercised where no impropriety existed: a suspect suffering hidden pain, or severe shock ‘which showed itself only in some slight vagueness and yet would have destroyed for the time being his power to answer with his ordinary intelligence.[320]
• The Judges’ Rules. In 1912 the Judges of the Kings Bench in England laid down a set of guidelines for the police when questioning suspects.[321] Versions of the Judges Rules in their pre-1964 form apply in most Australian jurisdictions either by incorporation in police standing orders or by adoption by the court as guidelines in exercising its discretion to exclude confessions.[322] But although the Judges’ Rules indicate some of the requirements of treatment which ought prima facie to be accorded a suspect, contravention of those rules is not decisive. It is indicative of a departure from the standards which the court thinks appropriate in the generality of cases. The treatment properly accorded the accused depends on all the circumstances. Australian judges, as a whole, have not insisted on their strict observance.[323] A number of specific points may be made:
― The Rules were designed partly to eliminate the need to inquire into whether or not there was in fact police impropriety by not allowing any interrogation of suspects who could be subjected to police pressure.[324] Nevertheless, police questioning in custody is normal practice, and the courts do not exercise their discretionary power to exclude admissions so obtained.[325]
― The Rules are ambiguous, unclear, and devolve considerable discretion on the police.[326]
― It is clear that the admission obtained after a person was arrested for the purpose of interrogation, and not charged, will be excluded,[327] but considerable leeway is sometimes allowed the police before taking the accused before a magistrate,[328] and wide scope given to other legitimate purposes.[329]
― It is uncertain when the caution must be given eg query when a policeman has ‘decided to charge’ the accused.[330] Query when a person is ‘in custody’: contrast R v Lee,[331] where it seems to mean actually arrested or charged, and Smith v R,[332] where Justice Williams emphasised a person’s reasonable belief that he is being ‘detained.[333]
― The cases conflict on whether the police must reveal to a suspect they are interrogating the nature and seriousness of the matter they are investigating. Contrast R v Fieldhouse[334] and R v Hart[335] with R v Woodall.[336]
― There is disagreement on whether confessional material obtained from the questioning of an accused after he had indicated that he did not want to answer police questions ought to be automatically excluded. The High Court in Basto v R[337] and R v Lee[338] admitted such statements but Chief Justice Barwick in R v Ireland[339] stated that such police conduct ‘will afford a ground for considering the exercise of a judicial discretion to exclude such evidence’. The South Australian Supreme Court follows the approach of ‘automatic discretionary exclusion[340] and this also seems to be the approach in Queensland[341] and New South Wales.[342] But Victorian and ACT authorities indicate that further questions may be asked and answers given may well be admitted.[343]
― Note the analogous situation where a suspect refuses to answer questions until he sees a solicitor—the approaches noted above seem also to be followed in these circumstances.[344] But the Queensland Court of Criminal Appeal will only exclude subsequent answers automatically if ‘no unreasonable delay or hindrance is caused to the process of investigation or the administration of justice’ by the accused’s request for a solicitor.[345] The English position is confused.[346]
― There is little authority on whether the Judges’ Rules extend beyond law enforcement authorities to professional investigators who know the caution eg private detectives.[347]
• Other Factors. Apart from considerations of the Judges’ Rules, the courts have considered other factors suggested relevant to the question of fairness. For example:
― The consequences of police arresting the accused on a ‘holding charge’ are uncertain (a holding charge is a charge which is not expected to be the main matter in respect of which the accused will be proceeded against). There are suggestions that such police conduct will usually result in exclusion of confessional statements subsequently obtained[348] but contrast the view of Justice Wells in R v Lavery (No 2)[349] who saw no objection in such a procedure and no ground to exclude the record of interview.[350]
― Because of special problems associated with the interrogation of Aborigines,[351] various jurisdictions have laid down specific guidelines to the police with respect to such interrogation. They have been noted in the discussion of ‘voluntariness’. They are guidelines similar to the Judges’ Rules, which police are recommended to follow when interrogating Aborigines. They are simply a judicial indication that different questions of fact may be relevant when a court is determining whether a confession made by an Aboriginal is involuntary, or should be rejected in the exercise of the discretion.
It is perhaps not surprising that the courts rarely exclude evidence under the discretion.[352]
149. Uncertainty as to Discretions. There is no authority which suggests that the requirement of voluntariness extends to civil trials. Further, it is very doubtful whether, in civil cases, a trial judge has a discretion to exclude prejudicial evidence. Such a discretion has been rejected strongly in Victoria,[353] New South Wales[354] and Queensland,[355] although the concept of relevance may offer some judicial flexibility.[356] Whether there is a discretion to disallow improperly obtained evidence is not so clear. The Privy Council indicated in Ibrahim v R[357] that an unfairly obtained admission ‘could not be excluded when tendered against a tortfeasor, although a jury might well be told as prudent men to think little of it.’ Nevertheless, in the recent Chancery decision of ITC Film Distributors v Video Exchange Ltd,[358] Justice Warner accepted that he should ‘balance the public interest that the truth should be ascertained ... against the public interest that litigants should be able to bring their documents into court without fear that they may be filched [ie misappropriated] by their opponents, whether by stealth or by a trick, and then used by them in evidence’.[359] He thought it ‘in the interests of the proper administration of justice to exclude documentary evidence so obtained’, notwithstanding that a contempt of court sanction also may have existed. The South Australian Full Court in Mazinski v Bakka[360] considered the question of improperly obtained evidence. Chief Justice King stated:
The courts cannot appear to condone the obtaining of evidence by deliberately illegal conduct which constitutes a serious infringement of legal rights. Whether by adapting the concept of abuse of process or by some other means, it seems to me that the courts must seriously consider assuming a discretionary power in civil cases to reject evidence which a party has obtained by a serious and deliberate infringement of the legal rights of another.[361]
Justice Wells, with whom Justice White agreed, considered:
although the discretion of the trial Judge in a criminal trial is lacking in a civil case, there remains, as always, the residual power of any court to prevent abuse of its processes, whether in the criminal jurisdiction ... or in the civil jurisdiction ... But it would, in my view, require a strong case to warrant a court’s taking such a course—for example, cases where acts of torture or extortion had been employed.[362]
150. Christmas and the Cocos (Keeling) Islands. The provisions relating to admissions in criminal cases differ markedly from those applicable in the other Australian jurisdictions. In particular note the following provisions of the Evidence Ordinance (Singapore) applicable in both Christmas and the Cocos (Keeling) Islands’.[363]
25. No confession made to a police officer who is below the rank of Inspector by a person accused of any offence shall be proved as against such person.26. No confession made by any person whilst he is in the custody of a police officer, unless it is made in the immediate presence of a Magistrate, shall be proved as against such person.
27. When any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of a police officer, so much of such information, whether such information amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved.
30. When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the court may take into consideration such confession as against such other person as well as against the person who makes such confession.
[1] Invariably, the evidence will be tendered against the party or accused. When tendered by the party or accused to support his case, it is usually held inadmissible as evidence of its truth, because of its self-serving nature and the danger of fabrication.
[2] PB Carter, Cases and Statutes on Evidence, 2nd edn, Sweet & Maxwell, London, 1981, 352-3. See also JA Gobbo, D Byrne & JD Heydon, Cross on Evidence, 2nd Aust edn, Butterworths, Sydney, 1979, para 18.84. It is clear, however, that it need not have been against interest when made.
[3] Slatterie v Pooley [1840] EngR 227; (1840) 6 M & W 665; 151 ER 579; R v Erdheim [1896] UKLawRpKQB 114; [1896] 2 QB 260, 270; JH Buzzard, R May & MN Howard, Phipson on Evidence, 12th edn, Sweet & Maxwell, London, 1976, para 671-3; EW Cleary, McCormicks Handbook of the Law of Evidence, 2nd edn, West Publishing Co, St Paul, Minn, 1972, para 262. See also US Federal Rules of Evidence 1975, r 801(d)(2).
[4] Not admissible: Voileau v Rutlin [1848] EngR 661; (1848) 2 Exch 665; 154 ER 657; McKinlay v North Australian Co (1869) 3 SALR 145; Austin v Austin [1905] VicLawRp 48; [1905] VLR 564, 56. Admissible as Admission: Singleton v John Fairfax and Sons Ltd [1982] 2 NSWLR 38. See also Kleeners Pty Ltd v Lee Tim (1959) 78 NVN (NSW) 746, 747, 748.
[5] Grant v Percival [1855] EngR 390; (1855) 5 HLC 257; Cross on Evidence, 2nd Aust edn, para 18.
[6] Legge v Edmonds (1855) 25 LJ Ch 125.
[7] R v McKenna (1956) 73 WN (NSW) 345; R v Gay [1976] VicRp 59; [1976] VR 577.
[8] Tripodi v R [1961] HCA 22; (1961) 104 CLR 1, 10; R v Perera [1982] VicRp 91; [1982] VR 901, 910; R v McKittrick [1982] VicRp 66; [1982] VR 637, 646; Cross on Evidence, para 9.39.
[9] [1964] HCA 23; (1964) 109 CLR 529.
[10] id, 537.
[11] id, 542.
[12] Barca v R [1975] HCA 42; (1975) 133 CLR 82, 106-8; Straker v R (1977) 51 ALJR 690, 696.
[13] [1910] HCA 68; (1910) 11 CLR 400, 422. See also R v Strausz (1977) 17 SASR 197, 204.
[14] R v Grills [1910] HCA 68; (1910) 11 CLR 400, 408, 411, 418, 419-420, 423 (but see Griffith CJ, id, 409); Tripodi v R [1961] HCA 22; (1961) 104 CLR 1, 7-8.
[15] R v Christie [1914] UKLawRpAC 20; [1914] AC 545, 554-5, 559-60; R v Hackett [1955] SASR 137, 141 (Napier CJ); R v Doolan [1962] Qd R 449, 450, 451 (CCA); R v Starr [1969] QWN 23, 53; R v Hart [1979] Qd R 8, 11-13 (CCA). See also Barca v R [1975] HCA 42; (1975) 133 CLR 82 107; Straker v R (1977) 15 ALR 103, 109 (Gibbs J, as he then was).
[16] R v Norton [1910] UKLawRpKQB 103; [1910] 2 KB 496, 499-500 (CA); R v Thomas [1970] VicRp 87; [1970] VR 674 (FC); Curtis v R [1972] TASStRp 5; [1972] Tas SR 21 (CCA); R v Scripps [1978] TASStRp 20; [1978] Tas SR 209; R v Strausz (1977) 17 SASR 197, 200; See Thatcher v Charles [1961] HCA 5; (1961) 104 CLR 57, 61 for civil cases. In Woon v R [1964] HCA 23; (1964) 109 CLR 529, 539 Taylor J seemed to follow this approach while Kitto J adopted Christie (id, 537-8). See also R v Ireland [1970] HCA 21; (1970) 126 CLR 321, 331 (Barwick CJ) and Hall v R [1971] 1 WLR 298, 301 (PC). It is unclear which approach is followed in R v Harrison (No 1) (1968) 87 WN (Pt 1) (NSW) 314 (CCA) and R v Lavery (1978) 19 SASR 515.
[17] See R v Strausz (1977) 17 SASR 197, 201-2.
[18] [1910] HCA 68; (1910) 11 CLR 400.
[19] id, 409 (Griffith CJ).
[20] R v Lindsay [1963] Qd R 386, 398; R v Thomas [1970] VicRp 87; [1970] VR 674; R v Hulse (1971) 1 SASR 327, 331.
[21] R v Harris (1970) 91 WN (NSW) 720; R v Duren [1971] 2 NSWLR 423,434 (Isaacs J); R v West [1973] Qd R 338 (CCA); R v Abbott [1981] WAR 130, 133. Although whereat, accused has read the statement of a fellow accused and said only that it is basically correct, it may be difficult to decide just what it was the accused had assented to: R v Hart [1979] Qd R 8, 11-12.
[22] R v Curtis [1957] VicRp 40; [1957] VR 306, 308 (FC); R v Ragen [1964-5] 2 NSWR 1515, 1523.
[23] R v Zema; R v Fajkovic [1970] VicRp 73; [1970] VR 566, citing dicta of O’Bryan J in R v Kerr (No 1) [1950] VicLawRp 23; [1951] VLR 211, 212. But see O’Bryan J in R v Tsingopolous [1964] VicRp 86; [1964] VR 676.
[24] [1972] TASStRp 5; [1972] Tas SR 21.
[25] id, 26.
[26] [1961] HCA 74; (1961) 106 CLR 1, 13.
[27] Nettlefold J in Curtis v R [1972] TASStRp 5; [1972] Tas SR 21, 32 (Nettlefold J), 26 (Crawford J): R v Kerr (No 1) [1950] VicLawRp 23; [1951] VLR 211; R v Lapuse [1964] VicRp 7; [1964] VR 43, 45 (FC): certainly this is the case if he only reads it silently: R v Vandine [1968] 1 NSWR 417, 421 (CCA); R v Abbott [1981] WAR 130: R v Dillon [1984] Crim L Rev 100 (English CA).
[28] [1972] TASStRp 5; [1972] Tas SR 21, 31.
[29] [1976] TASStRp 3; [1976] Tas SR 16.
[30] Bessela v Stern [1877] UKLawRpCP 37; (1877) 2 CPD 265; Young v Tibbits (1912) 1, CLR 114, 121-3; Thatcher v Charles [1961] HCA 5; (1961) 104 CLR 57, 61; R v Strausz (1977) 17 SASR 197. See generally Cross on Evidence, para 18-136. See also Criminal Law and Penal Methods Reform Committee of South Australia, Second Report, Criminal Investigation, Adelaide, 1974, (Mitchell Committee) 101-2: PK Waight & CR Williams, Cases and Materials on Evidence, Law Book Co, Sydney, 1980, 676-7; Report of the Committee of Enquiry into the Enforcement of Criminal Law in Queensland, (Lucas Committee) Brisbane, 1977, para 189-96.
[31] eg to remain silent—although note the occasional statutory duty to answer questions: Paterson v Martin [1966] HCA 68; (1966) 116 CLR 506.
[32] [1970] HCA 21; (1970) 126 CLR 321, 331. See also Woon v R [1964] HCA 23; (1964) 109 CLR 529, 541 (Windeyer J); R v Twist [1954] VicLawRp 6; [1954] VLR 121 (FC); R v Router (1977) 14 ALR 367, 375 (NSW CCA).
[33] [1971] 1 All ER 322, 324.
[34] id, 324.
[36] id, 590.
[37] R v McKelvey [1914] St R Qd 42, 53-4 (FC); Forrest v Normandale (1973) 5 SASR 524, 542 (FC); R v Router (1977) 14 ALR 365, 375 (NSW CCA).
[38] id, 531.
[40] Authorities suggesting that it is permissible: Paterson v Martin [1966] HCA 68; (1966) 116 CLR 506, 511 (Barwick CJ) (no caution required); R v Barron [1975] VicRp 51; [1975] VR 496, 504 (FC) (judicial discretion; caution given). See also R v Mann (1972) 56 Cr App R 750. Not permissible: R v Rudd [1923] SAStRp 11; [1923] SASR 229, 233 (caution given); R v Wyatt [1972] VicRp 105; [1972] VR 902, 906; R v Wright [1980] VicRp 56; [1980] VR 593, 616 (Kaye J) (caution given).
[41] R v Thomas [1970] VicRp 87; [1970] VR 674 (FC) suggests that inferences can be drawn, although it was decided prior to the cases noted above. See also R v Salahattin [1983] VicRp 49; [1983] VR 521, discussed below.
[42] R v Christie [1914] UKLawRpAC 20; [1914] AC 545, 565-6 Woon v R [1964] HCA 23; (1964) 109 CLR 529 (but note the requirement of Windeyer J in the latter case that the guilty consciousness be of the particular crime charged—id, 542); cf R v Chandler [1976] 1 WLR 585, 591 (CA).
[43] Merrall v Samuels (1971) 2 SASR 378, 392 (caution given); Forrest v Normandale [1973] 5 SASR 524, 532 (Bray CJ); see also R v Barron [1975] VicRp 51; [1975] VR 496, 504 (caution given). The English Criminal Law Revision Committee said the doctrine was not affected by the decision in Hall [1971] 1 All ER 322, because that doctrine was stated with reference to ‘an inference that [the accused] accepts the truth of the accusation’: Criminal Law Revision Committee of England, Report No 11, Evidence (General), Cmnd 4991, London, 1972, para 34.
[44] Hinton v Trotter [1931] SAStRp 19; [1931] SASR 123, 126; R v Daren and Tang, [1971] 2 NSWLR 423, 426-7, 435; R v Ryan (1966) 50 Cr App R 144, 148.
[45] Forrest v Normandale (1973) 5 SASR 524, 531-2; R v Router (1977) 14 ALR 365, 376 (NSW CCA); R v Sadaraka [1981] 2 NSWLR 459 (CCA).
[46] See R v Lewis (1973) 57 Cr App R 860; R v Gilbert (977) 66 Cr App R 237.
[47] [1983] VicRp 49; [1983] VR 521.
[48] id, 526.
[49] id, 535.
[50] Cross on Evidence, para 18.103.
[51] Cross on Evidence, para 18.108.
[52] Edwards v Brookes (Milk) Ltd [1963] 3 All ER 62; Cappers Ltd v L & M Newman Pty Ltd [1960] NSWR 143; Harris v Macquarie Distributors Pty Ltd [1967] VicRp 29; [1967] VR 257; Pomery Rural Hotels Ltd v Ellison (1973) 5 SASR 191.
[53] MacLennan v Hastings Transport Pty Ltd [1969] VicRp 48; [1969] VR 376; Stewart v Whelan Motors Pty Ltd [1974] AR 62 (NSW Ind Cmsn).
[54] Scott v Fernhill Stud Poultry Farm Ltd [1963] VicRp 2; [1963] VR 12.
[55] Burr v Ware RDC [1939] 2 All ER 688; Nominal Defendant v Hook [1962] HCA 50; (1962) 113 CLR 641; Law Reform Commission of NSW, Working Paper, The Rule Against Hearsay, Govt Printer, Sydney, 1976.
[56] Re Devala Provident Gold Mining Co Ltd [1883] UKLawRpCh 19; (1883) 22 Ch D 593; South Australian Co v City of Port Adelaide [1914] SALawRp 2; [1914] SALR 16; Hamlyn v Hann Heagney [1967] SASR 387, 398; Guarnaccia v Rocla Concrete Pipes Pty Ltd [1976] VicRp 25; [1976] VR 302, 305.
[57] [1954] VicLawRp 14; [1954] VLR 410.
[58] id, 412.
[59] The Solway [1885] UKLawRpPro 34; (1885) 10 PD 137; Finance and Guarantee Co Ltd v Commissioner of Taxation (1970) 44 ALJR 368.
[60] (1970) 44 ALJR 368, 370.
[61] cf Butcher v Longwarry [1939] VicLawRp 14; [1939] VLR 263, 269-270 (Lowe J); Ex parte Gerard and Co [1944] NSWStRp 30; (1944) 44 SR (NSW) 370, 376-7 (Davidson J), 381 (Jordan CJ); Barrett v Steel Products Distributing Co Pty Ltd [1962] NSWR 981; Scott v Fernhill [1963] VicRp 2; [1963] VR 12; Kelly v Mawson [1981] 1 NSWLR 184.
[62] See Tesco Supermarkets Ltd v Nattrass [1971] UKHL 1; [1972] AC 153.
[63] R v Blake & Tye (1844) 6 QBD 126; R v Harris (No 2) (1975) 12 SASR 270; R v Corak (1982) 30 SASR 404, 405 (King CJ).
[64] [1961] HCA 22; (1961) 104 CLR 1, 7.
[65] R v Gunn [1930] NSWStRp 50; (1930) 30 SR (NSW) 336; R v Harris (No 2) (1975) 12 SASR 270, 271; R v Gouroff (1979) 1 A Crim R 367, 371 (Vic CCA); R v Nessel (1980) 5 A Crim R 374 (Qld CCt.); Trade Practices Commission v Allied Mills Industries Pty Ltd [1931] ArgusLawRp 29; (1981) 37 ALR 225, 236-8 (Fed Ct).
[66] Cross on Evidence. 2nd Aus edn, para 18.113.
[67] (1982) 30 SASR 404, 405.
[69] id, 306.
[70] (1984) 8 Crim LJ 44.
[71] Falcon v Famous Players Film Co Ltd [1926] 2 KB 474. See also Willey v Synan [1937] HCA 85; (1937) 57 CLR 200, 209 (HC).
[73] id, 212. He extended this approach to include admissions relating to planning restrictions as well as title.
[74] Whitcombe v Whiting (1781) 2 Doug 652, 653; 99 ER 113.
[75] Farrelly v Hircock (No 1) [1971] Qd R 341.
[76] Lustre Hosiery Ltd v York [1935] HCA 71; (1935) 54 CLR 134; Smith v Joyce [1954] HCA 15; (1954) 89 CLR 529. However. the Court did say in R v Lee [1950] HCA 25; (1950) 82 CLR 133, 153 that ‘the better opinion [is that the discretion] is based on broad grounds of policy’.
[77] An analogous point is that admissions may be received in evidence even where they would have been excluded had they been made by someone other than a party eg, an admission based totally on hearsay (R v Turner [1909] UKLawRpKQB 190; [1910] 1 KB 346; Stock v Orcsik [1977] VicRp 46; [1977] VR 382); an admission in the form of an opinion (Doe v Steel (1811) 3 Camp 114). But cf the position of agents: The Solway [1885] UKLawRpPro 34; (1885) 10 PD 137).
[78] Surujpaul v R [1958] 1 WLR 1050, 1056 (PC); R v Marshall [1977] Crim L Rev 106; R v Hulbert (1979) 69 Cr App R 243 (CA). See also Police v Coward [1976] 2 NZLR 86, 87.
[79] Anglim and Cooke v Thomas [1974] VicRp 45; [1974] VR 363, 372 (followed in Stock v Orcsik [1977] VicRp 46; [1977] VR 382); Grey v Australian Motorists and General Insurance Co Pty Ltd [1976] 1 NSWLR 669, 685; R v Pfitzner (1976) 15 SASR 171, 177; Relf v Webster (1978) 24 ACTR 3, 7; see also Comptroller of Customs v Western Lectric Co Ltd [1966] AC 367 (PC): Horne v Comino [1966] Qd R 202 (FC). Alternatively, a court might conclude that it would be unsafe to convict upon the basis of such evidence, because of its low probative value: Grey v Australian Motorists and General Insurance Co Pty Ltd [1976] 1 NSWLR 669, 685; Ringstaad v Butler [1978] 1 NSWLR 754; Parks v Bullock [1982] VicRp 22; [1982] VR 258, 261.
[80] Horne v Comino [1966] Qd R 202 (FC).
[81] See Comptroller of Customs v Western Lectric Co Ltd [1966] AC 367; R v Porter [1976] Crim L Rev, 58; R v Marshall [1977] Crim L Rev 106; R v Overington [1978] Crim L Rev, 692 (CA); R v Hulbert (1979) 69 Cr App R 243 (CA).
[82] Bird v Adams [1972] Crim L Rev 174; R v Chapwood [1980] 1 All ER 467, 470, 472 (CA); Anglim and Cooke v Thomas [1974] VicRp 45; [1974] VR 363, 373; Dimitriou v Samuels (1975) 10 SASR 331; Relf v Webster (1978) 24 ACTR 3; Police v Coward [1976] 2 NZLR 86; R v Brady, unreported, No 109/1980, 14 August 1980, NSW CCA; Parks v Bullock [1982] VicRp 22; [1982] VR 258, 261; R v Dillon [1983] 2 Qd R 627.
[83] R v Guidice [1964] WAR 128; R v Gibbons [1971] VicRp 8; [1971] VR 79; R v Pfitzner (1976) 15 SASR 171. See also the English case of R v Chatwood [1980] Crim L Rev 46 (CCA).
[84] (1975) 132 CLR 258, 262.
[85] See R v Pfitzner (1976) 15 SASR 171, 178.
[86] See RA Brown, ‘Voluntary Admissions Based on Hearsay’ (1979) 3 Crim LJ 255; IR Scott, ‘Controlling the Reception in Evidence of Unreliable Admissions’ [1981] Crim L Rev 285.
[87] Cross on Evidence, para 18.86, citing Jogender Singh Bains v Yorkshire Insurance Co Ltd (1963) 38 DLR (2d) 417.
[88] [1976] 1 NSWLR 669, 684.
[89] Phipson on Evidence, 12th edn, para 684.
[90] [1955] HCA 62; (1955) 94 CLR 98, 142.
[91] [1976] 1 NSWLR 669, 676.
[92] [1972] Crim L Rev 174. Quoted in R v Chatwood [1980] 1 All ER 467, 470 (CA).
[93] Allied Interstate (Qld) Pty Ltd v Barnes [1968] HCA 76; (1968) 118 CLR 581 , 584-5 (Barwick CJ); Lopes v Taylor (1970) 44 ALJR 412, 421-2 (Gibbs J); Herbert v Benson [1942] NSWStRp 18; (1942) 44 SR (NSW) 382, 383; Herbert v R [1982] FCA 147; (1982) 42 ALR 631, 660-2 (Fed Ct); R v McGregor [1968] 1 QB 371, 377; R v Duncan (1981) 73 Cr App R 359; cf R v Sparrow [1973] 1 WLR 488, 492; Day v Dyson [1965] VicRp 22; [1965] VR 165; Revesz v Orchard [1969] SASR 336.
[94] JD Heydon, Cases and Materials on Evidence, Butterworths, London, 1975, 332 citing Harrison v Turner (1847) 10 QBD 482.
[95] See R v Donaldson (1976) 64 Cr App R 59, 65 (James LJ) (CCA).
[97] id, 817-8. See also Wendo v R [1963] HCA 19; (1963) 109 CLR 559; R v Lindsay [1963] Qd R 386.
[98] Piche v R [1971] SCR 23.
[99] Moreover, note the (much criticised) English Court of Criminal Appeal decision in R v Barker [1941] 2 KB 381 where it seemed to be held that the rules relating to the admissibility of ‘confessions’ applied equally to real evidence obtained from (or with the help of) the accused. Lord Diplock considered this case in R v Sang [1979] UKHL 3; [1979] 2 All ER 1222, 1229 (HL) without commenting adversely, although he was more concerned with the exercise of the judicial discretion. See also Viscount Dilhome, id, 1233.
[100] Cross on Evidence, para 18.113; Criminal Law Revision Committee of England, para 53.
[102] 756.
[103] MacPherson v R (1981) 55 ALJ 594, 596 (Gibbs CJ and Wilson J) citing Hough v Ah Sam (1912) 15 CLR 452, 457; Attorney-General v Martin [1909] HCA 74; (1909) 9 CLR 713, 731-2.
[104] DPP v Ping Lin [1976] AC 574, 600 (Lord Hailsham of St Marylebone) (HL).
[105] [1950] HCA 25; (1950) 82 CLR 133, 149.
[106] id, 146.
[107] id, 144, derived from the judgment of Dixon J, as he then was, in McDermott v R (1948) 76 CLR 501, 511.
[108] id, 144.
[109] (1948) 76 CLR, 501, 512. See also Gibbs CJ and Wilson J in MacPherson v R [1981] HCA 46; (1981) 55 ALJR 594, 596; and the High Court decision of Cleland v R [1982] HCA 67; (1982) 43 ALR 619.
[110] [1982] HCA 67; (1982) 43 ALR 619.
[111] id, 627.
[112] [1981] HCA 46; (1981) 55 ALJR 594.
[113] id, 597. See also the judgment of Gibbs J in Driscoll v R [1977] HCA 43; (1977) 137 CLR 517 with which both Mason J and Jacobs J agreed.
[114] id, 605-6, referring to Dixon J in Sinclair v R [1946] HCA 55; (1946) 73 CLR 316, 338. Dixon J considered that a judge might consider the trustworthiness of a confession when made by a person in an abnormal mental state—not its trustworthiness as a question of whether it was made at all.
[115] For example, Sholl J has stated that the accused must be ‘incapable of appreciating that he had a choice to remain silent, or incapable of exercising sufficient volition to give effect to what he knew was such a right of choice’: R v Buchanan [1966] VicRp 3; [1966] VR 9, 15. On the other hand, Smithers J in the ACT Supreme Court considered that mere cross-examination of an accused in custody, with the accused’s statements being rejected with disbelief, will deprive a confession of voluntariness: R v Bankowski (1971) 18 FLR 179.
[116] R v Lee [1950] HCA 25; (1950) 82 CLR 133, 149.
[117] DPP v Ping Lin [1976] AC 574, 601, 608; Cornelius v R (1936) 55 CLR 235, 245; Beamish v R [1962] WAR 85, 99 (CCA); Harris v R [1967] SASR 316, 320; Collins v R [1980] FCA 72; (1980) 31 ALR 257, 307-9; Naniseni v R [1971] NZLR 269, 274; R v Askeland (1983) 8 A Crim R 338, 347 (Tas SC).
[118] McDermott v R (1948) 76 CLR 501, 511-12; R v Lee [1950] HCA 25; (1950) 82 CLR 133, 144.
[119] In practice this requirement may be illusory—the mere act of interrogation itself may be seen as a sufficient ‘external factor’, in the circumstances, to render any confessional evidence involuntary.
[121] id, 82. But the same court recognised (at 83) that a confession may be involuntary if the suspect is in such a mental condition ‘that his utterances are completely unreliable’.
[122] [1976] AC 574, 590-1.
[123] [1950] HCA 25; (1950) 82 CLR 133, 144.
[124] See also Basto v R [1954] HCA 78; (1954) 91 CLR 628, 638-9.
[125] Harris v R [1967] SASR 316; R v Williams (1976) 14 SASR 1, 7-8.
[126] Cosgrove J in R v Oates [1979] Tas SR 203, 205.
[127] Cornelius v R (1936) 55 CLR 235, 251 (FHC); Collins v R [1980] FCA 72; (1980) 31 ALR 257, 307 (Brennan J).
[128] See below, para 134, 5.
[129] (1936) 55 CLR 235, 245.
[131] id, 511.
[132] Ibrahim v R [1914] AC 599, 609, 610; McDermott v R (1948) 76 CLR 501, 511.
[133] [1976] AC 574, 602 (HL).
[134] ‘I will be favourable to you’—R v Thompson [1783] EngR 186; (1783) 1 Leach 291; ‘you may get yourself into trouble’—R v Colley (1868) 10 Cox CC 536; ‘it would be better ...’—R v Richards (1967) 51 Cr App R 266, 268-9. See also R v Northam (1967) 52 Cr App R 97; Harz [1967] I AC 760, 820.
[135] [1965] Qd R 370, 372.
[136] See also R v Dean [1896] NSWLawRp 76; (1896) 17 LR (NSW) 224 and R v Howarth [1973] Qd R 431. Note R v M [1976] Qd R 344 where Lucas J held that the words ‘doing something wrong is bad. Lying can be worse spoken to a 12 year old constituted an improper inducement.
[137] ‘Be sure to tell the truth’—R v Court [1837] EngR 230; (1836) 7 C & P 486; ‘whatever you say will be given in evidence against you’—R v Baldry (1852) 2 Den 430; 169 ER 568; ‘I need to take a statement’—R v Joyce [1957] 3 All ER 623.
[138] See JD Heydon, Cases and Materials on Evidence, Butterworths, London, 1975, 173.
[139] [1968] 2 NSWR 132, 139.
[140] id, 139. Bowen CJ of the Federal Court also moved away from ‘the extreme applications which were made at one time of the principle’ when he said in Collins v R [1980] FCA 72; (1980) 31 ALR 257, 271 that ‘it may be that because of changes in economic and social views that words regarded in the last century as an ‘inducement’ would not be so regarded today’. See also Brennan J (309-10).
[141] Sinclair v R [1946] HCA 55; (1946) 73 CLR 316, 323; Basto v R [1954] HCA 78; (1954) 91 CLR 628, 640.
[142] DPP v Ping Lin [1976] AC 574. Lord Morris said that the statement must be given ‘the meaning which it would rationally be understood to have by the person to whom it was said’ (595).
[143] See R v Northam (1967) 52 Cr App R 97, 102-4 (CCA).
[144] McDermott v R (1948) 76 CLR 501, 511. But query how this can be reconciled with Dixon J’s overall concept of voluntariness and particularly his reference in Sinclair v R [1946] HCA 55; (1946) 73 CLR 316, 337 to ‘the rules relating to the presumptive involuntariness of confessions’ (337). See also Pascoe v Little (1979) 24 ACTR 21, 23; R v Oates [1979] Tas SR 203 (‘Any confession accompanied by ...’); Heydon, 168.
[145] Cornelius v R (1936) 55 CLR 235, 245 (‘given in consequence of ...’); R v Lee [1950] HCA 25; (1950) 82 CLR 133, 146 (‘a statement induced by ...’); Beamish v R [1962] WAR 85, 99 (CCA) (‘calculated to interfere with the appellant’s freedom of choice’); R v Bentley [1963] QWN 10, 25 (‘calculated under the circumstances to induce ...’); R v Plotzki [1972] Qd R 379, 385 (CCA); R v Bodsworth [1968] 2 NSWR 132, 138 (CCA); Collins v R [1980] FCA 72; (1980) 31 ALR 257, 307, 310 (Brennan J) (Fed Ct); R v Richards (1967) 51 Cr App R 266, 269 (‘operate ... upon the mind ...’); DPP v Ping Lin [1976] AC 574, 595, 600, 607 (HL); R v Milnes (1983) 33 SASR 211, 230 (‘continuing operation’).
[146] See generally P Mirfield, ‘Confessions—the ‘Person in Authority’ Requirement’ [1981] Crim L Rev 92.
[147] [1969] 1 AC 20, 33.
[148] However, note that the Privy Council in this case limited itself to ‘promises’—query whether the person-in-authority rule was extended to threats. See [1979] Crim L Rev 725. There are several English Court of Appeal decisions in favour of the ‘person in authority’ requirement.
[150] R v Clarke [1970] 1 NSWR 289 (CCA); R v Plotzki [1972] Qd R 379 (CCA); R v Oates [1979] Tas SR 203.
[151] Dixon J in McDermott (1948) 76 CLR 501, 512 emphasises the existence of other forms of inducement than ‘the use by persons in authority of hope or fear’ while the full High Court in Lee [1950] HCA 25; (1950) 82 CLR 133, 144 stated that ‘any one of a variety of elements, including a threat or promise by a person in authority, will suffice to deprive (a confession) of a voluntary character’. See also R v Attard [1970] 1 NSWR 750, 756 (CCA).
[152] [1909] HCA 74; (1909) 9 CLR 713, 736.
[153] [1980] FCA 72; (1980) 31 ALR 257, 289-290 (Fed Ct).
[154] Muirhead J in Collins v R [1980] FCA 72; (1980) 31 ALR 257, 289 (Fed Ct).
[155] R v Wilson [1967] 2 QB 406, 415.
[156] (1948) 76 CLR 501, 511.
[157] [1969] 1 AC 20, 33. See also R v Smith [1959] 2 QB 35.
[158] R v Cleary (1963) 48 Cr App R 116, 119 (CCA); R v Bodsworth [1968] 2 NSWR 132.
[159] See R v Thompson [1893] UKLawRpKQB 74; [1893] 2 QB 12; R v Amad [1962] VicRp 75; [1962] VR 545, 549.
[160] See R v McNamara [1963] VicRp 56; [1963] VR 402; Gouldham v Sharrett [1966] WAR 129.
[161] R v Northam (1967) 52 Cr App R 97 (CA); R v Zaveckas (1969) 54 Cr App R 202.
[163] id, 292. But see R v Milnes (1983) 33 SASR 211, 231.
[164] See Deokinanan v R [1969] 1 AC 20, suggesting that such cases do not fall within the scope of the concept. See also R v Stewart [1970] 1 All ER 689 (CCA); R v Towler (1968) 5 CRNS 55. But see Rules 2 and 3 of the 1964 Judges Rules.
[165] Commissioner of Customs and Excise v Harz [1967] 1 AC 160, 818-121 (Lord Reid) followed by the Privy Council in Deokinanan v R [1969] 1 AC 20, 29.
[166] R v Hurst [1958] VicRp 63; [1958] VR 396; R v Plotzki [1972] Qd R 37J.
[168] id, 245. See also Dixon J in Sinclair v R [1946] HCA 55; (1946) 73 CLR 316, 337.
[169] McDermott v R (1948) 76 CLR 501; R v Lee [1950] HCA 25; (1950) 82 CLR 133. But note the argument of McClemens J that Dixon J in McDermott retained such a requirement: McClemens, ‘The Admissibility of Self-Incriminatory Evidence’, (1971) 45 ALJ 57, 69.
[170] R v Fairleigh [1910] NSWStRp 83; (1910) 10 SR (NSW) 723; Maddaford v Brown [1953] SASR 169.
[172] id, 138.
[173] R v Smith [1959] 2 QB 35; R v Williams (1968) 52 Cr App R 439.
[174] [1970] 1 NSWR 289, 292 (CCA).
[175] See also Ibrahim v R [1914] AC 599; R v Bodsworth [1968] 2 NS WR 132; Pascoe v Little (1979) 24 ACTR 21, 23; Collins v R [1980] FCA 72; (1980) 31 ALR 257, 310 (Fed Ct).
[177] id, 989. See also R v Amad [1962] VicRp 75; [1962] VR 545, 549; R v Jones [1978] 2 Crim LJ 169.
[178] See R v Laird [1893] NSWLawRp 85; (1893) 14 LR (NSW) 354, 358-9.
[179] R v Milnes (1983) 33 SASR 211, 230.
[180] Note NSW legislation on this subject: Crimes Act 1900 s 410(1). See below.
[182] [1954] HCA 78; [1954] 91 CLR 628, 640. See also the Canadian Supreme Court decision of Rothman v R (1981) 20 CR (3d) 97.
[183] R v Poku [1978] Crim L Rev 488: R v Sang [1979] UKHL 3; [1979] 2 All ER 1222, 1229 (Lord Diplock); Ajodha v The State (1981) 2 All ER 193, 201; R v Oates [1979] Tas SR 203, 204; R v Linnane (1979) 32 SASR 72; R v Mitchell Unreported, (26 July 1978) (Qld CCA). See in particular Murphy 3 in Cleland v R [1982] HCA 67; (1982) 43 ALR 619, 628.
[184] DPP v Ping Lin [1976] AC 574, 600 (Lord Hailsham of St Marleybone) (HL).
[185] [1975] 1 All ER 77, 82.
[186] McDermott v R (1948) 76 CLR 501, 511 (Dixon J); R v Lee [1950] HCA 25; (1950) 82 CLR 133; R v Attard [1970] 1 NSWR 750, 756, 766; R v Howarth [1973] Qd R 431, 436 (CCA). But see McClemens J (1971) 45 ALJ 57, 60-62 who argues (citing dicta by Isaacs J in Attorney General v Martin [1909] HCA 74; (1909) 9 CLR 713, 736 ‘it is the person in authority that governs the position’) that oppressive conduct must come from a person in authority to render a confession involuntary.
[187] [1979] Tas SR 203.
[188] (1948) 76 CLR 501, 512.
[189] See also how the term is interpreted in the 1964 English Judges’ Rules.
[190] (1936) 55 CLR 235, 245.
[191] (1948) 76 CLR 501, 511.
[192] Cornelius v R (1936) 55 CLR 235, 252.
[193] R v Bankowski (1971) 18 FLR 179; Frijaf v R [1982] WAR 128; R v Wilson [1981] 1 NZLR 316.
[194] Cornelius v R (1936) 55 CLR 235, 246 (FHC); Beamish v R [1962] WAR 85, 87, 99-100 (CCA); Collins v R [1980] FCA 72; (1980) 31 ALR 257, 259 (Bowen CJ), 308 (Brennan J) (Fed Ct).
[195] Sinclair v R [1946] HCA 55; (1946) 73 CLR 316, 333 (Dixon J); Collins v R [1980] FCA 72; (1980) 31 ALR 257, 307-308 (Brennan J) (Fed Ct).
[196] [1946] HCA 55; (1946) 73 CLR 316.
[197] id, 323.
[198] id, 328.
[199] id, 340.
[200] id, 338.
[201] [1980] FCA 72; (1980) 31 ALR 257, 307-8 (Fed Ct).
[202] (1954) 91 CLR s628.
[203] id. 638-9.
[204] R v Starecki [1960] VicRp 22; [1960] VR 141, 151 (FC): R v Sykes (No 1) [1969] VicRp 78; [1969] VR 631, 637; Harris v R [1967] SASR 316, 320; R v Buckskin (1974) 10 SASR 1, 2, 3; R v Hart (1977) 17 SASR 100; R v Oates [1979] Tas SR 203, 205 (Cosgrove J). See also Lee J in R v Chiron [1980] 1 NSWLR 218, 239B.
[205] R v Isequillo [1975] 1 All ER 77, 83 (CCA); R v Kilner [1976] Crim L Rev 740 (mental age of 11); R v Horvath (1979) 93 DLR (3d) 1 (‘complete emotional disintegration’); R v Jeffries [1946] NSWStRp 54; (1946) 47 SR (NSW) 284, 311 (Street J); Beamish v R [1962] WAR 85, 87; R v Buchanan [1966] VicRp 3; [1966] VR 9 (FC); Klemenko v Huffa (1978) 17 SASR 549; R v Ostojic (1978) 18 SASR 188, 197 (FC) (drunkenness); R v Bradshaw (1978) 18 SASR 83, 87. See also Collins v R [1980] FCA 72; (1980) 31 ALR 257. 288 (Muirhead J).
[206] Street J in R v Jeffries [1946] NSWStRp 54; (1946) 47 SR (NSW) 284, 311 (CCA).
[207] Sholl J in R v Buchanan [1966] VicRp 3; [1966] VR 9, 15 (FC).
[208] R v Isequilla [1975] 1 All ER 77, 83 (CCA); R v Chiron [1980] 1 NSWLR 218, 238A, 2386-239A (but see 239B) (Lee J dissenting, CCA. The other members of the Court of Criminal Appeal did not consider this subject).
[209] McTiernan J in Sinclair v R [1946] HCA 55; (1946) 73 CLR 316, 340; Klemenko v Huffa (1978) 17 SASR 549, 555.
[210] Klemenko v Huffa (1978) 17 SASR 549, 555, 556 (Bray CJ, perhaps misinterpreting Latham CJ in Sinclair).
[211] R v Horvath (1979) 93 DLR (3d) 1.
[212] R v Ostojic (1978) 18 SASR 188, 197 (FC).
[213] R v Pratt (1965) 83 WN (NSW) 358, 366; Dixon v McCarthy [1975] 1 NSWLR 617, 640; R v C [1976] Qd R 341; Collins v R [1980] FCA 72; (1980) 31 ALR 257, 321 (Fed Ct).
[214] R v Roberts [1970] Crim L Rev 464.
[215] R v Jones, Unreported (11 September 1978) (Vic SC). It was also held not to be sufficient reason to exercise the discretion.
[216] Dixon v McCarthy [1975] 1 NSWLR 617, 640; see also the NSW Police Manual 31-12.
[217] See J Harper, ‘The Questioning of Juveniles’ (February, 1980) Qld Law Society J 9. Thus, for example, it was held in R v M [1976] Qd R 344 that a child of twelve should be expressly told that he is not obliged to accompany the police to the police station.
[218] R v C [1976] Qd R 341; R v W Unreported (5 February 1975) (Qld SC): ‘circumstances themselves, of course, can be overpowering, and the police do have an authority of their own which could be frightening for a child’ (Andrews J).
[219] Harper, 10.
[220] Frijaf v R [1982] WAR 128.
[221] [1905] ArgusLawRp 116; (1976) 11 ALR 412.
[222] See N Rees, ‘Police Interrogation of Aboriginals’ in J Basten, M Richardson, C Ronalds & G Zdenkowski (ed) The Criminal Injustice System, Australian Legal Workers Group (NSW); R v Hoosen (NT SC) Unreported (10 April 1978); R v Hogan, Unreported (24 November 1980) (NTSC); R v Jungala, Unreported (21 March 1980) (NTSC).
[224] Collins v R (1980) 3l ALR 257 (High Court refused leave to appeal in early 1981). See also Gudabi v R [1984] FCA 16; (1984) 52 ALR 133 (Fed Ct).
[225] Collins v R [1980] FCA 72; (1980) 31 ALR 257, 276.
[227] Collins v R [1980] FCA 72; (1980) 31 ALR 257, 307. But he did imply that police conduct includes police failure to adopt safeguards to protect the accused in the circumstances (320).
[228] R v Gibson Unreported (12 November 1973) (SASC); R v Williams (1976) 14 SASR 1.
[231] id, 641.
[233] id, 962.
[234] [1950] HCA 25; (1950) 82 CLR 133, 146.
[235] See R v Amad [1962] VicRp 75; [1962] VR 545, 549; R v Smith [1964] VicRp 14; [1964] VR 95; Attorney-General (NSW) v Martin [1909] HCA 74; (1909) 9 CLR 713; McKay v R [1935] HCA 70; (1935) 54 CLR 1.
[236] [1954] HCA 78; (1954) 91 CLR 628, 640.
[237] Cornelius v R (1936) 55 CLR 235, 264.
[238] R v Lee [1950] HCA 25; (1950) 82 CLR 133.
[239] ibid.
[240] PK Waight & CR Williams, Cases and Materials on Evidence, Law Book Co, Sydney, 1980, 711.
[241] Pascoe v Little (1978) 24 ACTR 21, 24; R v Pratt Unreported (October 1976) (ACT SC); cf R v Hammond [1964] NZHC 99; [1965] NZLR 257.
[242] R v Lee [1950] HCA 25; (1950) 82 CLR 133.
[243] R v Thompson [1962] SR (NSW) 135.
[244] R v G [1974] 1 NSWLR 31 (CCA).
[245] See discussion of the Victorian provision above.
[246] R v McKay [1965] Qd R 240.
[247] Repealed in 1965. See also Aborigines’ and Torres Strait Islanders’ Affairs Act 1965, s 38(1).
[248] See Smith v Grieve [1974] WAR 193; Ngatayi v R [1980] HCA 18; (1980) 30 ALR 27.
[250] Unreported (7 July 1980) (NSWSC).
[251] See generally A Gotlieb, ‘Confirmation by Subsequent Facts’ (1956) 72 LQ Rev 209; Z Cowen & PB Carter, ‘Confessions and the Doctrine of Confirmation by Subsequent Facts’ in Essays on the Law of Evidence, Clarendon Press, Oxford, 1975, 41; Heydon, 223-30; K Amarasekera, ‘Confessions: Recent Developments in England and Australia’ (1980) 29 ICLQ 327, 332-8.
[252] R v Jones [1809] EngR 19; (1809) Russ & Ry 151; 168 ER 733; R v Jenkins [1822] EngR 83; (1822) Russ & Ry 492; 168 ER 914. Note also R v Barker [1941] 2 KB 381 where the English Court of Criminal Appeal held that real evidence disclosed by the accused as a direct result of improper police conduct was on the same footing as an involuntary confession and, therefore, inadmissible (although the court conceded that evidence of discovered facts could be given, rather than any discovered real evidence). Contrast R v Leatham (1861) 8 Cox CC 498, 506.
[253] R v Ireland [1970] HCA 21; (1970) 126 CLR 321, 333; Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54.
[254] R v Warrickshall [1783] EngR 60; (1783) 1 Leach 263; 168 ER 234; R v Berriman (1854) 6 Cox CC 388, 389; Chalmers v HM Advocate [1954] Scots LT 177; R v Beere [1965] Qd R 370, 372 (Gibbs J, as he then was); Lord Scarman in R v Sang [1979] UKHL 3; [1979] 2 All ER 1222, 1245 (HL). See English Criminal Law Revision Committee, draft Criminal Evidence Bill, clause 2(5).
[255] R v Hodge (1794) and R v Grant (1801) cited by East: (1803) 2 East PC 658. A majority of the English Criminal Law Revision Committee would allow evidence to be given that the discovery of the fact was ‘as a result of a statement made’ by the accused: para 69. See also JH Chadbourne (ed) Wigmore on Evidence, Little, Brown & Co, Boston, 1970, vol 3, para 658. Notwithstanding the decision of R v Beere (above), it seems that police evidence to the effect: ‘as a result of something told to me by the accused I went to ...’ is commonly received in Queensland (and presumably other States: Cross on Evidence, para 12.40).
[256] R v Griffin [1809] EngR 19; (1809) Russ & Ry 151; 168 ER 732; R v Gould [1839] EngR 860; (1840) 9 C & P 364; 173 ER 870; R v Wray (1970) 11 DLR (3d) 673 (Supreme Court of Canada); see also F Kaufman, The Admissibility of Confessions in Criminal Matters, 2nd edn, Carswell Company Ltd, Toronto, 1974, 268.
[257] See Heydon, 227.
[258] R v Garbett [1847] EngR 511; (1847) 2 Car & Kir 474, 490 (Lord Denman CJ) arguendo; JH Chadbourne (ed) Wigmore on Evidence, para 856-7; RW Baker, The Hearsay Rule, Pitman Press, London, 1950, 58.
[259] R v Beames (1979) 1 A Crim R 239; R v Gaudion [1979] VicRp 7; [1979] VR 57; R v Bradshaw (1978) 18 SASR 83; R v Stephenson (1978) 18 SASR 381; R v Scripps [1978] TASStRp 20; [1978] Tas SR 209; R v Keeley [1980] VicRp 54; [1980] VR 571; R v Hauser (1982) 6 A Crim R 68 (NSW CCA).
[260] R v Demicoli [1971] Qd R 358, 365 (FC); R v Byrne [1972] 1 NSWLR 264; Harris v Samuels (1973) 5 SASR 439, 461.
[261] See above para 115.
[262] R v Hackett [1955] SASR 137, 141 (Napier CJ).
[263] Philp J in R v Doolan [1962] Qd R 449, 451 adopted by the Queensland Court of Criminal Appeal in R v Hart [1979] Qd R 8, 12-13. See also Barca v R [1975] HCA 42; (1975) 133 CLR 82, 107; Straker v R (1977) 15 ALR 103, 109 (Gibbs J. as he then was).
[264] [1977] HCA 43; (1977) 137 CLR 517, 541.
[265] id, 542. Note that, in R v Hauser (1982) 6 A Crim R 68, 75 Enderby J considered the same approach was appropriate in respect of a co-accused’s record of interview.
[266] id, 544.
[267] id, 523. See also R v West [1973] Qd R 338 (CCA); R v Scripps [1978] TASStRp 20; [1978] Tas SR 209.
[268] R v Mead, Unreported (24 August 1977) (Tas SC); R v Davis, Unreported (21 November 1977) (Vic Sup CA); R v Boyson, Unreported (28 September 1979) (NSW CCA).
[269] Hunt J in R v Boyson Unreported, NSW CCA, 28 September 1979, 1, 5. The High Court, although refusing to appeal, preferred this statement to the approach of the majority.
[270] (1975) 132 CLR 258.
[271] Barwick CJ, Gibbs and Mason JJ 264. See also Matusevich v R [1977] HCA 30; (1977) 15 ALR 117, 141-2.
[272] (1980) 2 A Crim R 65 (NSW CCA).
[273] id, 74-5.
[274] See R v Gay [1976] VicRp 59; [1976] VR 577, 590-1 (FC).
[275] R v Stewart (1972) 56 Cr App R 272; R v Kilner [1976] Crim L Rev 740.
[276] (1974) 60 Cr App R 52, 57.
[277] R v Sykes (No 1) [1969] VicRp 78; [1969] VR 631, 634; R v Buchanan [1966] VicRp 3; [1966] VR 9, 14-15 (FC).
[278] R v Scripps [1978] TASStRp 20; [1978] Tas SR 209, 210.
[279] [1978] HCA 22; (1978) 141 CLR 54.
[280] See below para 260.
[281] [1982] HCA 67; (1982) 43 ALR 619.
[282] id, 624 Gibbs CJ (Wilson J agreeing); 630 (Murphy J); 635 (Deane J); 644-5 (Dawson J).
[283] [1982] HCA 67; (1982) 43 ALR 619, 643.
[284] id, 644-5. See also 635 (Deane J).
[285] id, 624-5, 645 respectively. They agreed with the views of Brennan J in the Federal Court decision of Collins v R [1980] FCA 72; (1980) 31 ALR 257, 317. But Dawson J did think that the facts of Cleland might require consideration of the discretion.
[286] id, 633.
[287] id, 638.
[288] id, 630-1.
[290] id, 506.
[291] [1950] HCA 25; (1950) 82 CLR 133.
[292] id, 154.
[293] McDermott v R (1948) 76 CLR 501, 513.
[294] id, 507.
[295] [1946] NSWStRp 54; (1947) 47 SR (NSW) 284.
[296] [1950] HCA 25; (1950) 82 CLR 133, 155.
[297] See Cornelius v R (1936) 55 CLR 235, 251.
[298] [1950] HCA 25; (1950) 82 CLR 133, 154.
[299] id, 152, 154, 159. The Court stated that if the trial judge thought that the impropriety ‘was not likely to result in an untrue confession being made, that would be a good reason, though not a conclusive reason, for allowing the evidence to be given’, id, 153.
[300] (1980) 23 SASR 504, 582 (decided after Bunning v Cross but referring to the unfairness discretion).
[301] Resolved affirmatively. See above, para 144 (App C).
[302] R v Lavery (No 2) (1979) 20 SASR 430, 432-3; R v Austin (1979) 21 SASR 315; R v Szach (1980) 23 SASR 504.
[304] id, 132, 142-3.
[305] [1980] FCA 72; (1980) 31 ALR 257.
[306] See 312, 314 (Brennan J) and 277 (Muirhead J).
[307] [1982] HCA 67; (1982) 43 ALR 619.
[308] See Gibbs CJ (Wilson J concurring) 622, Murphy J 629-630, Deane J 632, Dawson J 641. See also Brennan J in MacPherson v R [1981] HCA 46; (1981) 55 ALJR 594, 606. They also considered that any police illegality would be relevant to the question of fairness.
[309] See also Cosgrove J in R v Askeland (1983) 8 A Crim R 338, 348 (Tas SC).
[310] [1980] FCA 72; (1980) 31 ALR 257.
[311] id, 315, 317, quoting Barwick CJ in Driscoll v R [1977] HCA 43; (1977) 137 CLR 517, 523.
[312] Murphy J in Cleland v R [1982] HCA 67; (1982) 43 ALR 619. See also Deane J in the same case and Brennan J in Collins v R [1980] FCA 72; (1980) 31 ALR 257, 317 (Fed Ct).
[313] Stated explicitly by Deane J in Cleland v R [1982] HCA 67; (1982) 43 ALR 619, 636, implied by Murphy J id, 628-9. See also R v Jeffries [1946] NSWStRp 54; (1947) 47 SR (NSW) 284, 291.
[314] R v Lee [1950] HCA 25; (1950) 82 CLR 133, 151.
[315] Sinclair v R [1946] HCA 55; (1946) 73 CLR 316, 323 (Latham CJ); R v Buchanan [1966] VicRp 3; [1966] VR 9, 15 ‘where it was extremely unlikely that he would be able to exercise a proper judgement’.
[316] Dixon v McCarthy [1975] 1 NSWLR 617; R v C [1976] Qd R 341; Walker v Marklew (1976) 14 SASR 463.
[317] R v Anunga [1905] ArgusLawRp 116; (1976) 11 ALR 412; R v Williams (1976) 14 SASR 1.
[318] R v Bradshaw (1978) 18 SASR 83, 87. Note Latham CJ’s Frior quoted examples in McDermott justifying exercise of the discretion: irresponsibility of the accused during interrogation or ‘failure on his part to understand and appreciate the effects of questions and answers’ (1948) 76 CLR 501, 507.
[319] R v Ostojic (1978) 18 SASR 188, 197; R v Tiley (1983) 33 SASR 344, 354; contra R v Williams (1976) 14 SASR 1.
[320] R v Ostojic (1978) 18 SASR 188, 197. See also Muirhead J in Collins v R [1980] FCA 72; (1980) 31 ALR 257, 277 (Fed Ct).
[321] Practice note [1964] 1 All ER 237.
[322] NSW Police Regulations, Victorian Chief Commissioner Standing Orders, Australian Federal Police General Instructions, NT Police Standing Orders. Queensland and Tasmania have not expressly adopted the Judges Rules but have chosen to nevertheless take them into account in applying the general discretion in R v Lee [1950] HCA 25; (1950) 82 CLR 133.
[323] See GL Teh, ‘An Examination of the Judges’ Rules in Australia’ (1972) 46 ALI 489; Waight & Williams, 716-725; Cross on Evidence para 18.130. Teh states: the courts ‘have very rarely rejected statements simply on the ground that one or more of the Judges’ Rules have been breached’ (id, 507). But cf R v Whitford [1980] Tas SR 98, 100.
[324] R v Straffen [1952] 2 All ER 657, 658; R v Bodsworth (1968) 87 WN (Pt 1) (NSW) 298.
[325] McDermott v R (1948) 76 CLR 501. Police questioning after accused charged permitted: Stapleton v R [1952] HCA 56; (1952) 86 CLR 358, 375-6; R v Lowery (No 1) [1972] VicRp 62; [1972] VR 554.
[326] See Teh, 489ff; Waight & Williams, 716-25.
[327] McDermott v R (1948) 76 CLR 501, 513; R v Bruce [1965] QWN 48.
[328] R v Banner [1970] VicRp 31; [1970] VR 240.
[329] R v Austin (1979) 21 SASR 315.
[330] See Waight & Williams, 718-9. Note that a 1978 amendment to Rule 2 now requires a caution to be given when the officer would have ‘reasonable grounds for suspecting’ that the person has committed an offence.
[331] [1950] HCA 25; (1950) 82 CLR 133, 155.
[332] [1957] HCA 3; (1957) 97 CLR 100, 129.
[333] See also R v Amad [1962] VicRp 75; [1962] VR 545, 546-7; Pascoe v Little (1978) 24 ACTR 21; Dellit v Small [1978] Qd R 303, 304.
[337] [1954] HCA 78; (1954) 91 CLR 628.
[338] [1950] HCA 25; (1950) 82 CLR 133, 139, 157.
[339] [1970] HCA 21; (1970) 126 CLR 321, 333.
[340] R v Stafford (1976) 13 SASR 392, 398-9; R v Killick (1979) 21 SASR 321, 330.
[341] R v Hart [1979] Qd R 8, 13 (CCA).
[342] R v Ragen (1964) 81 WN (Pt 1) (NSW) 572, 579.
[343] R v Wyatt [1972] VicRp 105; [1972] VR 902, 906; R v Mitchell, Unreported (November 1972) (ACT SC); R v Pratt, Unreported, (October 1976) (ACT SC).
[344] See generally Waight & Williams, 723-5.
[345] R v Hart [1979] Qd R 8. See also R v Borsellino [1973] Qd R 507, 512.
[346] Contrast R v Allen [1977] Crim L Rev, 163 and R v Elliott [1977] Crim L Rev 551.
[347] See R v Nichols (1967) 51 Cr App R 233; Beese v Governor of Ashford Remand Centre [1973] 3 All ER 689, 693 (HL); R v Lee [1950] HCA 25; (1950) 82 CLR 133, 150-1.
[348] McDermott v R (1948) 76 CLR 501, 513 (Dixon J); R v Eyres (1977) 16 SASR 226.
[350] 461-2. See also Collins v R [1980] FCA 72; (1980) 31 ALR 257, 279 (Muirhead J) (Fed Ct).
[351] Many Aborigines do not understand English very well, may not understand the concepts expressed, and tend to answer questions by authority figures in the way they think is wanted: R v Anunga [1905] ArgusLawRp 116; (1976) 11 ALR 412; Collins v R [1980] FCA 72; (1980) 31 ALR 257; Australian Law Reform Commission, Aboriginal Customary Law DP 20, Aboriginal Customary Law—The Criminal Law, Evidence and Procedure, AGPS, Sydney, 1984, para 31-9.
[352] But note a recent trend to exercise the discretion in South Australia: R v Stafford (1976) 13 SASR 392; R v Fieldhouse (1977) 17 SASR 92; R v Hart (1977) 17 SASR 100; R v Killick (1979) 21 SASR 321; R v Dean (1981) 26 SASR 437; R v Tiley (1983) 33 SASR 345.
[353] Manenti v Melbourne and Metropolitan Tramways Board [1953] VicLawRp 78; [1954] VLR 115, 118 (Sholl J); David Syme and Co Ltd v Mather [1977] VicRp 58; [1977] VR 516, 531 (FC). But cf Pallante v Stadiums Pty Ltd (No 2) [1976] VicRp 32; [1976] VR 363, 368.
[354] R v Ames [1964-5] 2 NSWR 1489, 1492 (CCA).
[355] Knight v Jones; ex parte Jones [1981] Qd R 98, 108 (Macrossan J). See also the South Australian case of Mazinski v Babba (1979) 20 SASR 350 discussed below.
[356] Above, para 57 (App C).
[357] [1914] AC 599, 601.
[359] id, 246. However, earlier he had seemed to accept that there was a ‘general role that in civil, as distinct from criminal, proceedings the court has no power to exclude relevant evidence even though that evidence has been unlawfully or improperly obtained ...’, id, 244.
[361] id, 361.
[362] id, 380-1. See also In re Gollan (1979) 21 SASR 79, 85-6 (Wells J).
[363] Note also that Christmas Island has adopted s 68 of the ACT Evidence Ordinance, see above para 137 (App C).
151. Common Law Jurisdictions. In most jurisdictions the common law rule known as the rule in Hollington v Hewthorn[2] applies:
• New South Wales. A conviction is inadmissible in civil proceedings to prove the facts on which the conviction is founded.[3]
In defamation proceedings an Australian conviction is conclusive evidence that the person convicted committed the offence, and a foreign conviction is admissible evidence that the person committed the offence.[4]
Section 23 of the Evidence Act 1898 (NSW) does not affect the common law rule. Section 23(1) so far as material reads as follows:
s 23(1) Where it is necessary to prove any of the following facts—
(a) the conviction or acquittal before or by any court or judge or justice of any person charged with any offence ... evidence of such fact may be given by the production of a certificate under the hand of—
(e) any such Judge or justice or official person; or (f) the clerk of such court; or
(g}–(i) (other court officers).
Section 23(4) reads:
(4) Any such certificate showing such conviction, acquittal, sentence or order shall also be evidence of the particular offence or matter in respect of which the same was had, or passed, or made, if stated in such certificate.
In isolation, subs (4) seems to suggest that a certificate of conviction is evidence ‘of the particular offence’, ie of the facts on which it is based. However as a whole s 23 presupposes the existence of common law rules as to when that certificate is receivable. Subsection (1) begins ‘where it is necessary to prove any of the following facts’: the section does not attempt to state where or for what purpose it will be necessary or proper to prove a conviction. What s 23 does is to set up a mechanism for proof of convictions, when admissible, which should be used rather than relying on the oral testimony of persons present in court when the conviction was pronounced.[5] The certificate described in subs (1) is merely proof of the conviction stated therein by the operation of subsection (4), not the facts supporting the conviction. That s 23 did not affect the rule in Hollington v Hewthorn was certainly the view of Justice Maguire in Ex parte Mavromatis; Re Windsor.[6] The question in this case was whether the owner of premises was ‘in control or party to’ gaming activities conducted therein. The lessee of the premises had been convicted as a keeper of a gaming house and this was sought to be tendered against the owner under s 23. Tender was refused on the grounds that the conviction was res inter alios acta and irrelevant to any issue to be determined in the prosecution of the applicant, who obviously had not been a party to the prosecution of the lessee. Justice Maguire expressly relied on Hollington v Hewthorn, Taylor v Wilson[7] and Stapleton v Davis[8] to bar receipt of the conviction, notwithstanding s 23. Other than in defamation proceedings the common law applies in New South Wales.
• Victoria. Hollington has been accepted but distinguished in Moore v Giofrelle,[9] on the basis that an admission in earlier criminal proceedings is admissible against the same defendant in later civil proceedings.
Also convictions were received in Re 396 Bay St, Port Melbourne[10] to support a police application that a house be declared premises where liquor was sold without a licence. The convictions were under the Licencing Act, and were of persons found upon the premises. Implicitly the convictions seemed to be relevant because they were evidence of the facts on which they were based viz unlicenced sales of liquor on those premises.
• Tasmania and Western Australia. Section 76(4)(b) of the Evidence Act 1910 (Tas) provides a manner for proof of a conviction like s 23 of the Evidence Act 1898 (NSW). Like s 23, it would not affect the rule in Hollington v Hewthorn.
152. Legislation. There is specific Commonwealth legislation and State and Territory legislation of general application:
• Commonwealth. Section 83 of the Commonwealth Trade Practices Act 1974 provides:
In a proceeding against a person under s 82 or in an application under s 87(1 A) for an order against a person, a finding of any fact by a court made in proceedings under s 77, 80, 80A or 81, or for an offence against s 79, in which that person has been found to have contravened, or to have been involved in a contravention of, a provision of Part IV or V is prima facie evidence of that fact and the finding may be proved by production of a document under the seal of the court from which the finding appears.
This reform limits admissibility of a finding of fact against a person to other proceedings under the Trade Practices Act 1974 against the same person. This is similar to the legislation in SA and the NT.
There is a presumption that ‘a finding of fact’ is correct, in that it is ‘prima facie evidence of that fact’. It is uncertain whether this presumption has the same effect as that set up in the Queensland and ACT legislation (as above).
Section 83 does not make clear what document is admissible to prove the finding of fact—it may not appear in the formal court record. It is uncertain whether the reasons for decision would be admissible, for example.
Under s 92(b) of the Marriage Act 1961 (Cth) a declaration of legitimacy made by a court under s 92 binds the Crown but does not affect the right of persons not party to the proceedings or to whom no notice of the proceedings was given. This suggests a finding of paternity in such a declaration of legitimacy is inadmissible in other proceedings.
• States and Territories. In Queensland and the ACT reforms have been introduced based on English reforms. A different approach has been taken in South Australia and the Northern Territory:
(a) ACT. The ACT has adopted the substance of the reforms to the English Civil Evidence Act in 1968. Sections 77-81 of the ACT Evidence Ordinance provide:
77(1) In this section, ‘civil proceedings’ does not include an action for libel or slander.
(2) The fact that a person has been convicted of an offence by a court is admissible in evidence for the purposes of proving, where to do so is relevant to an issue in a civil proceeding, that the person committed that offence, and, where a person is, in a civil proceeding, proved to have been convicted of an offence by a court, he shall, unless the contrary is proved, be taken to have committed that offence.
(3) This section applies—(a) whether or not a person was convicted upon a plea of guilty; and (b) whether or not the person convicted is a party to the civil proceeding.
78. In an action for libel or slander in which the question whether a person did or did not commit a criminal offence is relevant to an issue, proof that, at the time when that issue falls to be determined, that person stands convicted by a court of that offence is conclusive evidence that the person committed that offence.
79. Without prejudice to the reception of any other evidence for the purpose of identifying the facts on which a conviction was based, the statements in any document which is, under s 94 of this Ordinance, admissible in evidence, are admissible in evidence in a civil proceeding (including an action for libel or slander) for the purposes of identifying the facts upon which the conviction specified in that document was based.
80. Nothing in this part derogates from the operation of any other law in force in the Territory under which a conviction or finding of fact in a criminal proceeding is, for the purposes of any other proceeding, made evidence or conclusive evidence of any fact.
81(1). In this Part—
(a) a reference to a court—
(i) shall be read as a reference to a court in a State or Territory of the Commonwealth; and
(ii) shall not be read as including a reference to a court martial; and
a reference to a conviction shall not be read as including—
(i) a reference to a conviction that has been set aside or quashed; or
(ii) if the person convicted of an offence has been granted a pardon in respect of that offence, as including a reference to such a conviction.
(b) Queensland. Queensland has adopted the substance of the Civil Evidence Act 1968 (UK).[11] A conviction is admissible to prove that the accused committed the offence.[12] There is a presumption that the accused ‘committed the acts and possessed the state of mind (if any) which at law constitute that offence’.[13]
A conviction is conclusive as to guilt of the offence in an action for defamation.[14]
The Queensland legislation is similar to that in the ACT, except for the wording of the presumption in s 79(3). It is uncertain whether this difference has any substantive effect. In the ACT the presumption is that the accused ‘shall, unless the contrary is proved, be taken to have committed that offence’,[15] whereas in Queensland the presumption is that the accused shall ‘be taken to have committed the acts and to have possessed the state of mind (if any) which at law constitute that offence’.
(c) South Australia and the Northern Territory. The common law has been modified by s 34a (Evidence Act 1929 (SA) and by s 26A. Evidence Act (NT)
34a. Where a person has been convicted of an offence, and the commission of that offence is in issue or relevant to any issue in a civil proceeding, the conviction shall be evidence of the commission of that offence admissible against the person convicted or those who claim through or under him but not otherwise: provided that a conviction other than upon information in the Supreme Court shall not be admissible unless it appears to the Court that the admission is in the interests of justice.
It has been held in Hartley v Hartley[16] that s 34a is not limited to convictions by South Australian courts, but authorizes the admission in evidence of convictions of appropriate courts in other (Australian) jurisdictions.
These provisions are the same in the NT Legislation. They differ from the legislation in the ACT and in Queensland, in that:
(i) The conviction is only admissible in later proceedings against the person convicted and those claiming ‘through or under him’, not against third parties.
(ii) There is no presumption that the conviction is correct—it merely ‘shall be evidence, of the commission of that offence’.
(iii) A conviction other than upon information in the Supreme Court is not admissible unless the court exercises its discretion to admit ‘in the interests of justice’.
(iv) A conviction is admissible but not conclusive in defamation proceedings under the South Australian and Northern Territory legislation.
(v) There is no provision in South Australia facilitating proof of a conviction by a certificate signed by a court officer.[17] Neither in South Australia nor in the Northern Territory is there a provision admitting other documents such as the information or indictment, in order to identify the facts upon which the conviction is based.[18]
(vi) In South Australia and Northern Territory there is no definition of a ‘conviction’, so that it is unclear whether those provisions apply to convictions by courts-martial or a conviction that has been set aside, quashed or for which the person convicted has been granted a pardon.[19]
The Northern Territory has an obsolete provision[20] that a (married) person’s conviction for rape or other sexual offence is evidence of adultery or that offence. Note also s 101E of the Northern Territory Maintenance Act 1980 which states:
In any proceedings under this Act, evidence that a party to a marriage has been convicted whether in Australia or elsewhere of a crime is evidence that the party did the acts or things constituting the crime.
153. Inadmissible to Prove Guilt. There is authority in some jurisdictions that conviction against ‘A’ is not admissible against B to prove any fact relevant to the charge against B.[21]
154. Inadmissible to Prove Innocence. An acquittal is inadmissible in civil proceedings to prove the innocence of the accused. This is a common law rule, stated by the High Court in Helton v Allen.[22] An exception may exist where a defence of reasonable and probable cause is raised, to a charge of malicious prosecution.[23] An acquittal is inadmissible to prove innocence.[24]
155. New South Wales. The admissibility of a civil judgment in either later civil or criminal proceedings is unclear at common law but it is likely that the rule in Hollington would exclude the civil judgment. There is authority that in the absence of special agreement a civil judgment or award against a principal debtor is not binding nor admissible against a surety of the debtor; the surety is entitled to have the liability proved as against him in the same way as against the principal debtor.[25] This suggests a civil judgment is not admissible to prove a relevant fact in later civil proceedings against a different party. There is no authority as to the use of a civil judgment in criminal proceedings against the same person or against different persons. A finding of paternity in maintenance proceedings[26] is prima facie evidence of paternity in any subsequent proceeding.[27] A declaration of paternity made in any Australian jurisdiction or on New Zealand is conclusive evidence for all purposes of the matters contained in it.[28]
156. Victoria. The same common law rule of non-admissibility probably applies. There may be uncertainty as to the admissibility of coronial finding on civil proceedings.[29] Otherwise the common law is the same as in NSW.
157. Queensland. The common law applies.[30] In regard to a finding of paternity, an order against a person under the Maintenance Act 1965 (Qld), s 301,a), is prima facie evidence of paternity in any subsequent proceedings.[31] A declaration of paternity in any Australian jurisdiction or in New Zealand is conclusive evidence of the matters contained it, except that it is rebuttable by the child if not a patty to the proceedings.[32]
158. Australian Capital Territory. A civil judgment would be inadmissible, to prove the facts on which it was based, in either civil or criminal proceedings. There is no Children (Equality of Status) legislation in the ACT. A finding of paternity would probably be inadmissible, in other proceedings, although the point is not clear.[33]
159. South Australia and Northern Territory. Generally, a civil judgment would be inadmissible, to prove any fact upon which the judgment is based, in any civil or criminal proceedings. There are obsolete provisions that a finding of adultery is admissible in any subsequent proceeding in the matrimonial causes jurisdiction as evidence of adultery against that person.[34] A Maintenance order is prima facie evidence of paternity in any subsequent proceedings.[35] In the Northern Territory a declaration of paternity in any Australian jurisdiction or in New Zealand is, for all purposes, conclusive evidence of the matters contained in it.[36]
160. Tasmania and Western Australia. A civil judgment is inadmissible in later civil proceedings between different parties.[37] There is no authority as to the admissibility of a civil judgment to prove a fact on which it is based in a later criminal proceeding.
161. Legislation.[38] There are statutory provisions in all States and Territories, except Western 4ustralia and the Cocos (Keeling) Islands. They have the effect that the probate of a will or letters of administration with a will annexed are evidence of:
• the due execution of the will;
• the death of the deceased and, if stated, the date of death.
In Tasmania[39] and Victoria[40] the probate or letters of administration shall be ‘prima facie’ evidence of the death and date of death of the testator.
[1] This topic should be distinguished from res judicata and issue estoppel. The view is taken that these topics are outside the terms of reference. The proposals have been drafted in such a way as not to affect those topics and not to prevent judgments in rem leg probate orders, divorce decrees, bankruptcy orders sentences in prize courts) having their normal effect. In civil proceedings they are conclusive against all persons as to the state of things affected or recognised.
[3] Rakay v MacFarlane (1960) 78 WN (NSW) 488, a decision implicitly accepting the correctness of Hollington v Hewthorn.
[4] Defamation Act 1974 (NSW) s 55. Under this section, a conviction includes that by a court martial.
[5] See Rakay v MacFarlane (1960) 78 WN (NSW) 488; Mash v Darley [1913] UKLawRpKQB 168; [1914] 1 KB 1.
[8] [1907] ArgusLawRp 166; [1908] VLR 114.
[10] [1969] VicRp 35; [1969] VR 293.
11. 11. See above.
[11] See above.
[12] Evidence Act 1977 (Qld) s 79(2).
[15] Evidence Ordinance 1971 (ACT) s 77(2).
[16] [1947] SAStRp 56; [1948] SASR 39.
[17] But see s 26C(2) for such a provision in the Northern Territory.
[18] See s 79 (ACT), s 81 (Qld) for such provisions.
[19] See s 81 (ACT), s 78 (Qld), for definitions which exclude such convictions.
[20] s 26C.
[21] Ex parte Mavromatis; Re Windsor (1956) 73 WN (NSW) 420; Stapleton v Davis [1907] VLR 114.
[22] [1940] HCA 20; (1940) 63 CLR 691—on appeal from Queensland.
[23] Earnshaw v Loy No 1 [1959] VicRp 43; [1959] VR 248.
[24] O’Brien v Commissioner of Railways [1904] 7 WAR 119.
[25] Begley v AG (NSW) [1910] HCA 69; (1910) 11 CLR 432, 440.
[26] Maintenance Act 1964 (NSW).
[27] Children (Equality of Status) Act 1976 (NSW) s 12.
[28] ibid.
[29] Walpole v Colonial Bank of Australasia (1884) 10 VLR 315; cf Spain v Union Steamship Co of New Zealand Ltd [1923] HCA 65; (1923) 33 CLR 555, 584.
[30] Hearn v Hearn [1944] QWN 45.
[31] Status of Children Act 1978 (Qld) s 8(3).
[32] Status of Children Act 1978 s 8(5).
[33] Smith v Kearney (1879) 2 SCR (NS) NSW Eq 65.
[34] Evidence Act 1929 (SA) s 34b; Evidence Act (NT) s 20B.
[35] Status of Children Act 1979 (NT) s 9(3); Family Relationships Act 1975 (SA) s 7(c), (d).
[36] Status of Children Act 1978 (NT) s 9(5).
[37] Irwin v Batt (1911) 7 Tas LR 90; Dellas v Fay (1966) Unreported, No 86 of 1966.
[38] Evidence Acts or Ordinances of—(NSW) s 29(4); (Qld) s 64(3) & (4); (Vic) s 74; (Tas) s 62(2)); (ACT) s 14.
[39] Evidence Act 1910 s 62(2).
[40] Evidence Act 1958 s 74.
162. Character may itself be an element of a charge, claim or defence. In contrast to character evidence admitted as relevant to an issue, as a foundation for an inference of conforming conduct, character in issue is itself a fact in issue, as determined by the substantive law and pleadings. It is substantively required as the end product of proof, not for any inferences that might be drawn to other facts in issue:
If a newspaper calls the plaintiff a man of dishonest and violent disposition, in later defamation proceedings proof of a dishonest and violent disposition is admissible because this is a fact in issue if the defence is raised that ‘the imputation is a matter of substantial truth ... and ... relates to a matter of public interest or is published under qualified privilege.[1]
No special rules presently apply to cases where ‘character’ is ‘in issue’, and not merely relevant to a fact in issue: ‘there are other cases, no doubt, in which (admission of evidence of bad character) becomes inevitable, because it is relevant and is a matter directly in issue’.[2] As Cross states:[3]
Evidence of the plaintiff’s character may be given whenever it is directly in issue ... A plaintiff’s character may be directly in issue on the question of liability in an action for defamation when justification is pleaded, and the question whether specific acts, rumours or reputation can be received will depend on the pleadings in the particular case: Maisel v Financial Times (1915) 84 LJKB 2145. The plaintiff’s character is also relevant to the amount of damages recoverable by him in proceedings for defamation.
163. Reputation. Reputation may be an issue in defamation cases[4] and bad reputation may be pleaded in mitigation of damages.[5] In Re T and Director of Youth and Community Services[6] a question arose whether the appellant was ‘of good repute’ within s 21 of the Adoption of Children Act 1965 (NSW). Justice Waddell noted that:
In some cases, evidence of a person’s reputation may be admissible as hearsay testimony relevant to his actual character. In other cases, the nature of a person’s reputation is itself, as it is in this case and in defamation cases, a question in issue.
However, it is not entirely clear whether specific acts may be used on occasion to support an inference that knowledge of them would affect the person’s reputation—as a general proposition this was rejected by a majority of the House of Lords in Plato Films Ltd v Speide,[7] but the Court of Appeal held in Goody v Odhams Press Ltd[8] that criminal convictions be so proved to show reputation.[9] Both these decisions were followed by Justice Waddell in Re T and Director of Youth and Community Services.[10]
164. Opinion. Opinion may be in issue in contract cases, as where X agrees to employ Y so long as, in Z’s opinion, Y is fit for work.[11]
165. Specific Acts. The accounts of a particular instance of conduct may be relevant as a matter in issue where the accused person pleads autrefois convict. Similarly, it may be relevant to give a motive for conduct, as when a person wishes to account for his running away from a police officer by showing that he had been previously fined after being convicted, had failed to pay the fine, and had thought he was being arrested for failing to pay it.[12]
166. Evidence of Bad Character of Accused. As a general proposition, evidence is not admissible to show an accused person’s bad character, or general ‘propensity’[13] to commit crime.[14] Notwithstanding its relevance, it is excluded ‘as a matter of policy, policy deeply rooted in principle’.[15] Possible exceptions to this proposition, however, may be evidence of ‘similar’ conduct showing a specific propensity, and evidence led by a co-accused. There is conflicting authority on the question whether one accused may adduce evidence, particularly expert opinion evidence, with respect to a co-accused’s propensities.[16]
167. Evidence of Good Character of Accused. An accused may adduce evidence as to his general good character, but the orthodox view is that it must be limited to evidence of reputation.[17] However, the limitations are not observed in practice[18] and there is recent authority suggesting that opinion evidence and evidence of particular acts is admissible to prove good character.[19] Section 413B(1) of the NSW Crimes Act 1900 permits an accused person to adduce evidence to show that he or she is ‘generally or in a particular respect a person of good disposition or reputation’. Note also s 413, which, along with s 56 of the Evidence Ordinance (ACT), permits evidence of ‘habits, disposition and conduct’. Views differ as to the use to be made of evidence of good character:
• disproof of guilt;[20]
• primarily going to the accused’s credibility;[21]
• going to the credibility of prosecution witnesses (as well as disproof of accused’s guilt).[22]
It seems probable that all three uses are permissible.[23]
168. Rebuttal of Accused’s Good Character. Where the defence has adduced evidence of the accused’s good character, the prosecution is entitled to adduce rebuttal evidence. This may occur in three ways:
• Evidence of Bad Character. As with evidence of good character, there is authority which limits this to evidence of reputation.[24] Some authorities permit proof of convictions[25] and expert opinion evidence.[26] It is not clear whether evidence of bad character adduced by the prosecution in this situation is admitted as evidence of guilt or only to neutralize the evidence of good character.[27]
• Cross Examination of Character Witnesses. A witness who testifies to the accused’s good character may be cross-examined to test the accuracy of his evidence, and it seems may also be asked whether he is aware of the accused’s previous convictions[28]—including it would seem, convictions which are irrelevant to whether the accused is likely to have committed the offence charged or to his credibility.[29]
• Cross-Examination of the Accused. In all Australian jurisdictions there are provisions substantially permitting cross-examination of the accused by the prosecution or a co-accused to show ‘bad character’, where he has adduced evidence of ‘good character’. Permission of the court must first be obtained (in the absence of the jury) except in New South Wales. Again, there is disagreement whether the cross-examination as to character extends beyond evidence of reputation to evidence of specific conduct or opinion.[30] In New South Wales the term used is not ‘bad character’ but ‘bad disposition or reputation’,[31] while it is ‘improper conduct ... or bad reputation’ in the ACT.[32] Further, it is not clear whether implications of ‘good character’, rather than direct evidence of it, are sufficient to bring the provisions into operation.[33] It is also uncertain whether evidence relating to character which is not evidence of bad character must therefore be evidence of good character.[34] The English view is that cross-examination under these provisions may be directed both to the probability of the accused’s guilt and to the credibility of the accused’s testimony.[35] In Australia, the position is not so clear. In R v Donnini,[36] Chief Justice Barwick seemed to suggest that the cross-examination cannot be used to prove bad character, but only to rebut good character or impugn credibility.[37]
169. Similar Fact Evidence. The leading case in the area of ‘similar fact’ evidence is the decision of the Privy Council in Makin v Attorney-General for NSW[38] Lord Herschell, the Lord Chancellor, in delivering the judgement, stated:
It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue ...[39]
170. In Markby v R,[40] acting Chief Justice Gibbs, as he then was, regarding this passage as authoritative, restated the principles:
The first principle, which is fundamental, is that the evidence of similar facts is not admissible if it shows only that the accused had a propensity or disposition to commit crime, or crime of a particular kind, or that he was the sort of person likely to commit the crime charged. The second principle, which is a corollary of the first, is that the evidence is admissible if it is relevant in some other way, that is, if it tends to show that he is guilty of the crime charged for some reason other than that he has committed crimes in the past or has a criminal disposition.
The law in this area remains particularly uncertain—partly because of the language used in the above statements:
• Precise Nature of Prohibited Reasoning. In the quoted passages and other judicial statements three concepts are referred to: character, disposition and propensity. Often it is not clear whether they are used interchangeably; indeed, it is probable that they overlap considerably in meaning. ‘Character’, according to the Concise Oxford Dictionary, is a ‘description of a person’s qualities’, inferred from a variety of sources. It is clear that the prosecution cannot adduce evidence of the accused’s character to support an assertion that he committed the crime charged.[41] ‘Propensity’, again according to the Concise Oxford Dictionary, means ‘inclination or tendency’. A propensity reasoning process involves inferring a person’s tendency to do a certain act simply from the fact that he has done similar acts in the past. The overlap with character reasoning is clear, but the important difference is that ‘propensity’ is highly elastic in content. While one would not normally say that a person has a ‘character’ trait to commit a crime wearing a particular disguise, it seems appropriate to use the term ‘propensity’ if he has committed a number of crimes in that disguise.
The law relating to propensity reasoning is uncertain. On one view, evidence tendered by the prosecution[42] to show propensity is, like evidence of character, inadmissible.[43] But there is increasing support for the view that there is no rule of automatic exclusion for propensity evidence.[44] At the most, only reasoning via general propensity[45] is automatically prohibited. Evidence of a specific propensity may be so probative that it should be admitted, despite the dangers.[46] The ‘principle,[47] based on the dangers of propensity evidence, is a principle in fact, not a rule, and subject to exceptions in certain circumstances. Thus Justice Murphy stated in Perry v R[48] that evidence of a specific propensity has in fact been admitted in the past,[49] ‘despite protestations to the contrary’, and the supposed rigid distinction between ‘prohibited use of previous criminality to show propensity’ and other uses ‘is unsatisfactory’. Justice Wilson, without expressing a firm conclusion, noted the ‘impressive’ body of academic writing which takes the view that recent cases[50] interpret the traditional formulation:
not in terms of a rule of exclusion with certain categories wherein exceptions may be found, nor in terms of mere propensity or something more, but as requiring the court to compare, in the context of each case, the probative value of the evidence with the risk of prejudice it conveys.[51]
In his opinion, ‘there is much to be said for this reconciliation of the twin principles stated by Lord Herschell, although there is no reason to treat any particular formulation as exclusive’.[52] The Canadian Supreme Court recently adopted this approach in Sweitzer v R,[53] stating that the admissibility of similar fact evidence ‘will depend upon the probative effect of the evidence balanced against the prejudice caused to the accused by its admission whatever the purpose of its admission’.
• The Precise Nature of Permissible Modes of Reasoning. The courts have not clearly articulated the circumstances in which similar fact evidence may be admitted. Nevertheless, examples of particular kinds of relevance may be noted. If an accused denies being in the area where the crime charged was committed, evidence that he committed another crime in that area at about the same time would be admissible, to show opportunity.[54] A more common reasoning process is based on probability. Ordinary experience may suggest that a number of similar events are unlikely to have occurred coincidentally. The conclusion follows that they were the product of a single connecting cause.[55] Where the similar events involve deaths, this reasoning process may suggest murder rather than accident. One problem with this reasoning process, of course, is that the degree of probability involved is infinitely variable. The courts have not precisely defined the circumstances in which this reasoning process is available. The High Court considered the question in Perry v R. On one analysis, Justice Brennan imposed two preconditions on the admissibility of similar fact evidence tendered for a reasoning process relying on probability:
1. The trial judge must be satisfied, to an appropriate standard of proof, that the similar event occurred.
2. The trial judge must be satisfied, to an appropriate standard of proof, that the accused could have been responsible for the similar event.[56]
The other members of the High Court, while not expressly imposing such requirements, analysed the evidence in a manner consistent with this approach. It cannot be said, however, that they agreed on the content of the appropriate standard of proof on each issue. According to Chief Justice Gibbs it seems to be ‘established’.[57] To Justice Wilson it is ‘clearly proved’.[58] Justice Murphy required that the evidence ‘justify a finding beyond reasonable doubt[59] while Justice Brennan himself required that it be such that ‘the jury could have been satisfied’.[60] The first two formulations emphasise the role of the judge, the last two suggest that the issue of fact is for the jury although the judge must decide if there is a prima facie case for the existence of the fact. But while all the members of the South Australian Supreme Court thought that a jury could reasonably have found that one of the alleged victims, Duncan, had suffered from arsenic poisoning,[61] Justices Brennan and Murphy had no difficulty in finding otherwise. It may be that these differences derive from incompatible views about the status of the two requirements noted above. Rather than being strict preconditions, it is more likely they are mere guides in the assessment of probative value. On this analysis, the probability that a similar event occurred, and the probability that the accused could have been responsible, would simply constitute components of the general probability that a series of events linked to the accused occurred coincidentally.
Another possible limitation was canvassed by Chief Justice Gibbs who emphasised the importance of ‘striking similarity’ between the circumstances of the event in question and the event constituting the subject matter of the trial, although he did not suggest that it was always necessary for admissibility.[62] Justices Murphy and Wilson did not advert to this concept[63] while Justice Brennan stated that ‘evidence of a series of occurrences exhibiting a more attenuated similarity may be admissible’ if there are several such occurrences.[64] He emphasised that no one factor would be decisive in the assessment of probative value. This view that ‘striking similarity’ is not a strict requirement was adopted by several members of the High Court in the subsequent decision of Sutton v R.[65]
• The Content of Any Additional Rules Limiting the Admissibility of Such Permissible Modes of Reasoning. The courts have differed on the question whether mere relevance via a permissible reasoning process is enough for admissibility. Part of the problem derives from uncertainty about the meaning of ‘relevance’. Nevertheless the weight of authority favours the view that ‘a strong degree of probative force’ is required before ‘similar fact’ evidence may be admissible.[66] Variations on this theme have been ‘really material bearing on the issues to be decided’,[67] ‘so very relevant that to exclude it would be an affront to common sense[68] and making it ‘probable’ that the fact to be proved existed.[69] The High Court has recently held in two decisions that similar fact evidence tendered for some legitimate reasoning process must have a probative value greater than mere relevance.[70] The admission of similar fact evidence is exceptional, and the onus is on the prosecution to justify such admission. However, there is no clear agreement on what is required over and above relevance. Chief Justice Gibbs repeated his earlier expressed views that the evidence ‘must have a strong degree of probative force’.[71] Justice Brennan, on the other hand, held that similar fact evidence is allowed ‘only where the probative force of the evidence clearly transcends its merely prejudicial effect’.[72] Nevertheless he did state, at a later stage, that ‘what is material is whether or not [the evidence] has that strong degree of probative force which warrants its exception from the primary exclusionary rule’.[73] Justice Wilson did not come down clearly one way or the other. On the one hand, he began his analysis by quoting the Chief Justice. But then he noted a view that ‘to be admissible, the evidence must have a sufficiently high degree of probative force to outweigh the inevitable prejudice flowing from the nature of the evidence’. He considered there was ‘much to be said’ for this formulation, ‘although there is no reason to treat any particular formulation as exclusive’.[74] Justice Murphy considers that evidence of a similar event ‘must be excluded unless taken with all the other evidence it could justify a finding beyond reasonable doubt that the accused’ was responsible for that similar event,[75] while Justice Dawson takes the extreme position that such evidence must be excluded unless the trial judge concludes there is no ‘rational view of that evidence which is inconsistent with the guilt of the accused’.[76] Finally, Justice Deane requires only that similar fact evidence must ‘clearly’ have probative force ‘which is independent of or goes beyond its prejudicial effect as evidence of mere propensity’.[77]
• ‘Relevant to an Issue’. In Makin v Attorney-General for NSW,[78] Lord Herschell stated that similar fact evidence is admissible if it is ‘relevant to an issue’, and it is not rendered inadmissible if it ‘rebuts a defence which would otherwise be open to the accused’. The law in this area is unclear. A number of approaches have been suggested:
(a) The plea of not guilty puts everything in issue and the Crown is entitled to tender any evidence which would be admissible to rebut any defence theoretically open.[79] Indeed it has been suggested that this is the position if the prosecution knows that the accused is not going to raise a particular defence, and that ‘the accused should not be able, by confining himself at the trial to one issue, to exclude evidence that would be admissible and fatal if he ran two defences ...’.[80]
(b) ‘Admissibility of the evidence does not depend on the line taken by the defence at the trial, that is, on whether the accused has raised or disclaimed a particular defence.’[81] This is possibly a more limited, and somewhat more ambiguous, version of the first approach. But, equally, it is consistent with the next approach, assuming that the line taken by the defence is at least a factor in the determination of the ‘issues’.
(c) It must be clear that the issue is ‘really in dispute’.[82] It must be ‘raised in substance’, as Lord Sumner stated in Thompson v R[83] or as Viscount Simon stated in Harris v DPP, ‘evidence of similar facts involving the accused ought not to be dragged in to his prejudice without reasonable cause’.[84] Lord Sumner thus rejected the theory that:
a plea of not guilty puts everything material in issue ... The prosecution cannot credit the accused with fancy defences in order to rebut them at the outset with some damning piece of prejudice ... and ... the accused can exclude evidence that would be admissible and fatal if he ran two defences by prudently confining himself to one.[85]
It has been suggested that the reason for the latter limitation is to avoid the accused being prejudiced by evidence introduced ostensibly to meet a theoretical issue which in reality was never in issue at all.[86] Various factors relevant to deciding whether an issue is ‘really (substantially) in dispute’ have been suggested:[87]
(a) the nature of the offence.
(b) the other evidence in the case.[88]
(c) whether the defence has expressly limited the defence he is seeking to rely on by, for example, a formal admission of certain elements of the charge—‘the Crown ought not to call evidence to prove a matter which has been the subject of an admission, at least if the calling of such evidence would be likely to have any prejudicial effect on the accused’.[89]
(d) alternatively, an informal statement by defence counsel may dispose of some possible issues.[90] In some jurisdictions the rule has been adopted that, in cases of doubt, a trial judge should ask the accused or his counsel, in the absence of the jury, to indicate whether he proposes to take the defence to which the similar fact evidence would be admissible to rebut.[91]
• Judicial Discretion. It is clear that the trial judge’s general discretion to exclude otherwise admissible evidence[92] applies to similar fact evidence. But the law is unclear as to the availability of the discretion where there is more than one accused:
(a) Evidence adduced by the Crown. In New South Wales and Queensland authority favours the view that the trial judge has a discretion to exclude similar fact evidence relevant to one accused on the basis that it may be disproportionately prejudicial to a co-accused.[93] But the Western Australian Court of Criminal Appeal in Re Attorney-General’s Reference No 7 of 1977[94] held that it was not ‘permissible to prevent the Crown from leading evidence which is admissible against one accused upon the ground that it is inadmissible as against another and prejudicial to that other’s defence.’
(b) Evidence adduced by a co-accused. The Victorian Full Court stated in R v Lowery (No 3)[95] that ‘it is fundamental to the administration of criminal justice that a person accused must be completely free to meet the charge against him by all legitimate and relevant means.’ This observation was adopted by the Privy Council on the appeal: Lowery v R.[96] Justice Macrossan of the Queensland Supreme Court in Knight v Jones, ex parte Jones[97] and the New South Wales Court of Criminal Appeal in R v Murray[98] have held that a trial judge has no discretion to exclude relevant evidence adduced by one accused ‘because it may be a source of possible prejudice’ to a co-accused. But, in Victoria, Justice Jenkinson (with whom Chief Justice Young agreed) considered in R v Darrington and McGauley[99] that the question of judicial discretion in such circumstances was left undecided by R v Lowery (No 3). He held that there were considerations of greater weight than the right of an accused to freely defend himself in favour of ‘the conclusion that the freedom claimed is subject to discretionary control by the trial Judge’. Justice Jenkinson argued that these considerations were the burden on the jury if no discretion existed, the disadvantages of separate trials (ordered to avoid that burden) and the possible very low probative value of the evidence. The Victorian Full Court, however, in R v Gibb and McKenzie,[100] has recently cast doubt on the scope of this discretion.
171. Legislation. Only in the Evidence Ordinance (Singapore), drafted by Sir James Stephen and applicable in the Christmas and Cocos (Keeling) Islands, are there provisions which relate generally to the admissibility of similar fact evidence.[101] The provisions are drafted in terms of ‘relevancy’, and foster a categorisation approach by emphasising discrete mental elements like intention, knowledge, good faith and negligence. As to evidence of the character of the accused, all Australian jurisdictions provide in substance that the accused may be cross-examined as to bad character if such evidence ‘is admissible to show that he is guilty of the offence wherewith he is then charged’.[102] Admissible evidence in this provision means evidence which would be admissible even if the accused had not testified. But only New South Wales and Queensland have specific provisions permitting cross-examination of an accused as to character if such evidence ‘is admissible for the purpose of showing [a co-accused] to be not guilty ...’.[103]
172. Character. It appears from the authorities that evidence of good and bad character is excluded in civil cases where the object is to persuade the fact-finder that the party acted on the occasion in question in conformity with his character.[104] However, evidence of the character of a third party has been admitted[105] and it may be that the issue is simply one of relevance.
173. Prior Conduct. It is not clear whether the ‘similar fact’ rule applies in civil cases. A number of courts have insisted that any kind of similar fact evidence should have a high degree of probative value, or at least more than the minimum required for relevance. But others have required some degree of similarity or simple relevance. Standards adopted include:
• ‘Prior conduct evidence’ is only admissible when it ‘makes it probable’ that the fact to be proved existed.[106]
• ‘The collateral fact ... will when established be capable of affording a reasonable presumption or inference as to the matter in dispute’.[107]
• ‘Not too remotely relevant’.[108]
Where the ‘circumstances of other incidents were not capable of being regarded as substantially similar to those existing at the time of the plaintiff’s accident, such other incidents could have no probative value. They were irrelevant and therefore inadmissible.[109]
• Justice Northrop of the Federal Court required only ‘probability or increased probability, judged rationally upon common experience, that (the similar facts) would not be found unless the fact to be proved also existed’.[110]
• Justice St John, also of the Federal Court, has more recently declined to follow Justice Northrop, holding that the rules applicable in criminal cases to similar fact evidence also applied to civil proceedings.[111]
In Mood Music Publishing Co Ltd v De Wolfe Ltd,[112] Lord Denning, the Master of the Rolls, emphasised a balancing test: that ‘the courts will admit evidence of similar facts if it is logically probative, that is, if it is logically relevant in determining the matter which is in issue: provided that it is not oppressive or unfair to the other side: and also that the other side has fair notice of it and is able to deal with it’. This test, however, was rejected by Justice Northrop as unsupported by authority.[113]
174. The only legislation of relevance is in the Christmas and the Cocos (Keeling) Islands. Sections 52 and 55 of the Evidence Ordinance provide:
52. In civil cases the fact that the character of any person concerned is such as to render probable or improbable any conduct imputed to him is irrelevant, except in so far as such character appears from facts otherwise relevant.55. In civil cases the fact that the character of any person is such as to affect the amount of damages which he ought to receive is relevant.
Explanation.—In sections 52, 53, 54 and 55 the word ‘character’ includes both reputation and disposition; but, except as provided in section 54, evidence may be given only of general reputation and general disposition, and not of particular acts by which reputation or disposition are shown.
175. Habit. Justice Stephen said in Brown v Eastern and Midlands Railway Co[114] that ‘you must not prove ... that a particular engine driver is a careless man in order to prove that a particular accident was caused by his negligence on a particular occasion’. But the High Court in Lahrs v Eichsteadt[115] allowed the plaintiff to call witnesses to prove that it was the plaintiff’s habit to wheel his bicycle instead of riding it at the point where the accident between the plaintiff and the defendant’s cat occurred. It seems that ‘habit’ evidence, unlike ‘character’ evidence, is admissible. But the pre-conditions for admission of the evidence are unclear. The crucial test may be whether the evidence makes ‘it appear probable’ that, in the same circumstances, the same act will recur.[116] Justice Asprey in Connor v Blacktown District Hospital[117] suggested a number of factors must be present: a sufficient number of occasions of the relevant acts, the acts occurring in similar circumstances and uniformity of acts on those occasions. Justice Jacobs, dissenting in that case, stated that habit evidence was only admissible when there was no direct evidence of the event in question.[118] This limitation, however, was rejected by the House of Lords in McWilliams v Sir William Arrol and Co.[119]
176. Character and Conduct. There is little authority on the admissibility of ‘character’ evidence relating to ‘third parties’, apart from ‘victims’ in criminal cases.[120] It seems that where the disposition of a third party is relevant in civil proceedings, it may be proved by opinion evidence, evidence of reputation or specific instances.[121] Where the disposition of a deceased attesting witness to a will is attacked, evidence of his good disposition has been admitted.[122] But where it is sought to tender evidence in a criminal case of specific acts by a third party, for example a policeman, in order to draw a character inference, there are conflicting authorities. Thus the Federal Court in Duff v R[123] held that the ‘similar fact’ rules of admissibility applied when it was sought to conclude from previous behaviour that a policeman was likely to induce a confession—despite the fact that the problem of prejudice to the accused did not arise. It reasoned:
The rule ... is sometimes rested upon the ground of remoteness or want of reasonable connexion between the principal and evidential facts in such cases, sometimes upon the inconvenience that would result if a different rule prevailed, and sometimes upon the tendency that there would be to confuse juries by raising collateral issues ...[124]
But, in Knight v Jones, ex parte Jones,[125] the Full Court of Queensland held that similar fact evidence showing a prosecution witness’ disposition to act in a certain way, if relevant, is not made inadmissible by reasons of policy and fairness, nor, apparently, by a concern for accurate fact-finding.
177. Victims of Non-Sexual Crime. In R v Jackson,[126] Justice Menhennitt held that evidence of a victim’s character was admissible, on the issue of whether the accused believed that he should act in self defence, only if that character was known to the accused. Recently the Victorian Full Court in R v Gibb and McKenzie[127] has adopted the view that evidence of disposition may be led without any requirement of knowledge, but only as relevant to 1:he accused’s state of mind. This suggests that evidence of a victim’s character would not be admissible to show how the victim was likely to have behaved in fact. But in R v Howe,[128] it was held that evidence that a victim in a murder case was of violent disposition[129] could be led to support an inference that the accused had acted in self-defence, or at least in response to provocation. Although the cases cited in the South Australian Supreme Court’s judgement, R v Biggin[130] and R v Griffin,[131] do not offer much support for the proposition,[132] R v Howe has been cited by Cross[133] and impliedly followed in R v Beech,[134] where, indeed, the proposition was extended to an assault case.[135] In the recent Canadian decision of R v Scopelliti,[136] a murder/self-defence case, the Ontario Court of Appeal held that there is:
no rule of policy which excludes evidence of disposition of a third person for violence where that disposition has probative value on some issue before the jury ... previous specific acts of violence by a third party which have significant probative value to prove a disposition for violence are admissible where such disposition is relevant.[137]
There does not seem to be any doubt that if the accused does adduce evidence of the victim’s character, the Crown can lead evidence of the victim’s good character in rebuttal.[138] But it is unlikely that such evidence can be led in chief.
178. Victims of Sexual Crime. Under the common law, a sexual crime complainant[139] may be cross-examined as to:[140]
• general sexual reputation;
• sexual relations with the accused on occasions other than that complained of in the trial;
• sexual relations with persons other than the accused.
However, it has been far from clear to what extent evidence can be led on these matters, because of uncertainty as to whether they are relevant to an issue, like consent, or only to the complainant’s credibility. The orthodox view, until recently, was that, while evidence may be tendered on the first[141] and second[142] points, it could not be on the last.[143] An exception to this was apparently acknowledged where it was suggested that the complainant was a prostitute,[144] ‘a woman of abandoned character’[145] or a woman of ‘notoriously loose morals’.[146] However, the recent High Court decision of Gregory v R[147] established that acts of sexual intercourse with persons other than the accused ‘may be probative of the fact that the complainant consented to have intercourse with the accused, or of the fact that the accused believed that the complainant was consenting. If evidence of this kind is [logically] relevant to an issue in the case, and not merely to credit, there is no rule of law that excludes it’.
179. Strong criticisms have been made of the common law relating to evidence of prior sexual conduct of sexual offence complainants.[148] As a :result of these criticisms, reforms have been introduced in all States—but not in the Territories. But the legislation is inconsistent. The types of offences to which the provisions apply vary from state to state and the proceedings to which the legislation applies also differ.[149] More important, evidence of prior sexual conduct is controlled in very different ways. Tasmania and South Australia exclude such evidence if it is only relevant to credibility but otherwise leave the question in the judge’s discretion. The other four states exclude evidence of sexual reputation while not absolutely excluding evidence relevant to credibility. But while Victoria and Queensland require only ‘substantial relevance[150] to the issues, and that admission is ‘desirable in the interests of justice’, NSW and Western Australia have totally prohibited the admission of sexual conduct evidence subject to a number of exceptions. The exceptions relate to surrounding circumstances, a prior relationship with the accused, issues of identity, a specific motive for false complaint (to explain pregnancy or sexual disease) and, in NSW, to rebut prosecution evidence.
180. General. A witness may not be accredited in any way unless his credibility is attacked. With respect to the latter, the common law allows the credibility of any witness to be investigated, normally by cross-examination of the witness. A witness can be asked questions relating to his past life with a view to showing that his behaviour on other occasions renders it more likely that on this occasion he is not telling the truth. He may be cross-examined about his past history and conduct to bring out circumstantial evidence of his ‘bad character’ and his resulting propensity to lie.[151] It may be that a witness’ criminal convictions can be put to him even if they relate to a matter that has little to do with credibility.[152] Indeed, there is support for the proposition that the scope of cross-examination as to specific misconduct is virtually unlimited, with no requirement of relevance to veracity.[153] But there are statutory provisions in all States and Territories giving a judge discretion to disallow cross-examination as to credit via character. Legislation in Queensland, New South Wales and the ACT refers to time considerations and other factors minimising the relevance of the subject matter to credit. The other jurisdictions include similar considerations but also refer to the question of whether ‘there is a great disproportion between the importance of the imputation made against the witness’ character and the importance of his evidence’.[154]
181. Rebuttal of Witnesses’ Denials. Authorities are agreed that it is a rule of evidence that the answer given by a witness to a question concerning a collateral fact must be treated as final, and cannot be contradicted by other evidence.[155] This rule is justified by the desire to avoid the consumption of time and resources which might be involved if every collateral issue were fully investigated. The leading definition of collateral fact is that given by Chief Baron Pollock in Attorney-General v Hitchcock:[156]
...The test whether a matter is collateral or not is this: if the answer of a witness is a matter which you would be allowed on your own part to prove in evidence—if it have such a connection with the issue, that you would be allowed to give it in evidence—then it is a matter on which you may contradict him.
182. The orthodox view is that a collateral fact is a fact which is not a fact in issue or relevant to a fact in issue.[157] On a wide view of relevance, evidence relevant only via credibility would fall within this definition, since it would indirectly affect the probability of the existence of a fact in issue with respect to which the witness in question was testifying. But, according to this orthodox view, a fact which is relevant to a fact in issue only because it concerns the credibility of a witness, is a collateral fact. On the other hand, the High Court in Piddington v Bennett and Wood Pty Ltd[158] made it clear that whether the witness was in fact present at the scene of the events he is giving evidence about is ‘a fact relevant to the fact in issue’.[159] On the High Court’s analysis, whether the witness had the opportunity to perceive a relevant event is itself relevant to a fact in issue, but whether he had a tendency to faulty memory or dishonesty is not (being only relevant to credit). Similarly, courts have held that a rape complainants previous sexual relations with the accused is relevant to the issue of consent, while her sexual relations with others is relevant only to credit, unless she is a prostitute. Some commentators explain these distinctions by emphasising that relevance is a matter of degree.[160]
183. However, evidence of ‘collateral facts’ may sometimes be adduced, since it is accepted that there are exceptions to the general rule prohibiting collateral evidence. Evidence of bias is one. Evidence may also be called to establish that a witness has a reputation for lying, even though such a method of attacking a witness’ veracity is used rarely.[161] In addition, a prior inconsistent statement of the witness may be proved if it consists of what the witness told a third person about a fact in issue. Strictly this is not an exception since the evidence is not a collateral fact—the fact (what the witness said) is relevant to a fact in issue. Other exceptions about which there exists uncertainty and differences are:
• Opinion. After a witness testifies to another witness’ reputation for truth and veracity, he/she may, except in the ACT and in New South Wales criminal proceedings,[162] also be asked whether he/she personally would believe the witness on oath. The general view is that the opinion may be based on the witness’ personal knowledge[163] but the Ontario Court of Appeal has held that the opinion should be a conclusion drawn only from his knowledge of the witness’ reputation.[164] With respect to evidence of expect opinion, the House of Lords in R v Toohey[165] and the Privy Council in Lowery v R[166] give some support to the idea that medical witnesses might be called upon to give an opinion as to whether another witness (or the accused) was telling the truth, or was likely to do so. In the former case it was stated that ‘medical evidence is admissible to show that a witness suffers front some disease or defect or abnormality of mind that affects the reliability of his evidence’,[167] while in the latter psychological evidence tendered by the accused was admitted to show that one co-accused’s story was more probable than the other’s.[168] The admissibility of psychological evidence about the personalities of the two accused was upheld on the grounds that
It would be unjust to prevent either of them from calling any evidence of probative value which could point to the probability that the perpetrator was one rather than the other.[169]
It is however not clear whether the evidence could have been called if one accused had not attacked the testimony of the co-accused—in R v Turner[170] the Court of Appeal was unwilling to treat the case as authority for the proposition that expert evidence may always be called on the issue of the accused’s veracity. In R v Tonkin and Montgomery[171] expert evidence was admitted on the credibility of an abnormal witness but most authorities regard expert opinion evidence on another’s credibility as normally inadmissible.[172]
• Prior Convictions. At common law, it is not clear whether, if the witness denies the prior conviction, evidence to prove it can be adduced.[173] In Pennell v Carruthers Bros Pty Ltd it was held that the prior conviction could not be proved[174] but statutory provisions in all jurisdictions except the Commonwealth, New South Wales and the Territories permit proof of convictions.[175]
• ‘Habits, Disposition and Conduct’. Section 413 of the New South Wales Crimes Act provides, in part, that:
Every witness examined as to character. whether of the accused or of any other person. may give evidence not only as to the general repute of such person, but also as to the witness’ own knowledge of his habits, disposition and conduct.[176]
Section 56(1) of the ACT Evidence Ordinance provides that:
Where evidence with regard to the character of a person is admissible in a proceeding. a witness may, in the proceeding, give evidence of the general reputation of the person and of the witness’ own knowledge of the habits, disposition and conduct of the person.
Like the New South Wales provision, it appears to abolish the traditional limitations on admitting evidence of a witness’ specific conduct relevant only to credibility. It applies to both civil and criminal proceedings. But the meaning of the preliminary words, ‘where evidence with regard to the character of a person is admissible’, is not clear. At the time this legislation was drafted the term ‘character’ meant ‘reputation’, but the provision seems to distinguish the two concepts. It may be that it is limited to the rare situation where the character of a person is a fact in issue. But the better view is that the clause is premised on the assumption that character evidence relevant to credibility may be adduced in rebuttal although it had traditionally been limited to evidence of reputation and opinion.
184. Some commentators have suggested that R v Mendy[177] is authority for the view that the courts may create further exceptions.[178] However, the court does not in fact appear to have suggested this. But the confusion over the content of the ‘exceptions’ to the collateral facts rule provides some support for an alternative view of the scope of the rule.[179] Collateral fact, on this alternative analysis, means a fact which is not (independently) relevant to either a fact in issue or the credibility of a witness. More accurately, taking into account the Pollock definition in Attorney-General v Hitchcock, the test is whether the fact could have been shown in evidence for any purpose independently of the contradiction,[180] whether the evidence is admissible for any purpose other than its tendency to establish the contrary of what the witness earlier said.[181] If the answer is ‘no’, the fact to which the evidence is directed is collateral and the rule bars the evidence. Otherwise, the evidence may be adduced. The question, then, is whether the evidence is relevant to an issue (including relevant via credibility) other than by showing contradiction and whether it is barred by any exclusionary rule (including the rules relating to character’[182] and opinion evidence). Evidence would be relevant via credibility if it demonstrated defects in what may be called the witness’ ‘testimonial factors’—whether the witness had an opportunity to perceive, his perceptive ability, whether he has a particular conceptual skill, his memory, his sincerity, his ability to communicate accurately.
185. It appears that the party who called the witness may rebut evidence, led through other witnesses to attack his credibility, with evidence of specific conduct, as well as reputation and opinion evidence.
186. Special Rules. Under English and Australian law an accused person who chooses to testify is not treated in the same way as an ordinary witness.[183] The accused may adduce evidence of his good character to enhance his credibility. If he does, the prosecution is entitled to adduce rebuttal evidence. This area has been discussed above. Legislation covers the situation of cross-examining the accused. The typical form followed by the legislation in Australian jurisdictions precludes the prosecution or any co-accused from asking, and, if asked, protects the accused from having to answer,[184] any questions which ‘tend to show’ that the accused -has committed other offences; has been convicted of any other offences; has been charged with other offences; or is of bad character. This prohibition is followed by a series of specific exceptions allowing such cross-examination—where the evidence would have been admissible in chief; the accused has attempted to prove his good character; the evidence is adduced to establish the innocence of a co-accused;[185] the defence has attacked the character of prosecution witnesses; or the accused has given evidence against a co-accused.
187. The first three exceptions have been considered above since they can relate directly to proof of a fact in issue, but they are also relevant to credibility. Points to note are:
• Self-Incrimination Proviso. Section 399(4) of the Victorian Crimes Act provides:
A person charged and being a witness in pursuance of this section may be asked any question in cross-examination notwithstanding that it would tend to criminate him as to the offence charged.
This provision has an identical counter-part in England and all Australian States[186] except Queensland and NSW.[187] There are two main views on the relationship between this proviso and the provision generally prohibiting cross-examination on matters of character:
(a) Literal View. The effect of the proviso is confined to taking away from an accused person the right to claim the privilege against self incrimination in respect of questions which would tend directly to criminate him as to the offence charged.[188]
(b) Broad View. The proviso permits cross-examination of an accused person through questions which would tend to criminate him directly or indirectly as to the offence charged. This would include proof that the accused had committed other offences or acts of misconduct on other occasions provided they were relevant to the issue of guilt. The prohibition, subject to its exceptions, relates solely to cross-examination as to credit.[189] This approach is taken in the NSW legislation—the accused, if he gives evidence, is open to cross-examination about any misconduct of which evidence would have been admissible during the case for the prosecution.[190]
• Definition of ‘Bad Character’. The term ‘bad character’ is used in most formulations of the prohibition. At common law, the word ‘character’ in the law of evidence was confined to reputation, and did not extend to ‘disposition’. But, there is ample authority for the proposition that the meaning of the word ‘character’ in the prohibition extends both to reputation and disposition.[191] In NSW[192] and the ACT[193] the legislation expressly provides that evidence of both bad disposition and bad reputation fall within the ambit of the prohibition.
• Meaning of ‘Tending to Show’. Two meanings of this phrase have been adopted:
(a) Tending to Reveal. In Jones v DPP,[194] a majority of the House of Lords held that the prohibition had not been infringed because the words ‘tending to show’ mean ‘make known to the jury’, and the jury had already been made aware of the fact that the accused had previously been in trouble by means of his evidence in chief. In NSW, the majority view of Jones v DPP is reflected in s 413A(1) of the Crimes Act 1900, where the expression ‘tending to reveal’ is used.[195] But there is some doubt whether this means that evidence must have been given of the record or whether it is enough that it is ‘mentioned’ at the trial, eg, a reference ‘by counsel for the prosecution in opening which he is subsequently unable to substantiate by adducing evidence’.[196]
(b) Tending to Prove. A minority in Jones v DPP, Lords Denning and Devlin, considered that the words ‘tending to show’ meant tending to show when regarded in isolation.[197]
• Attacks on the Character of the Prosecutor or Prosecution Witnesses. In all States and Territories, except NSW[198] and South Australia,[199] legislation exists that is similar to s 15(2)(c) of the Queensland Evidence Act. It provides that an accused may not be cross-examined as to prior convictions or bad character unless:
... the nature or conduct of the defence[200] is such as to involve imputations on the character of the prosecutor[201] or of any witness[202] for the prosecution or of any other person charged in that criminal proceeding: Provided that the permission of the court to ask any such question (to be applied for in a trial by jury in the absence of the jury) must first be obtained.
(a) Meaning of ‘Imputation’. Subtle distinctions permeate this branch of the law. To describe the prosecution witness as a liar may not be sufficient to cast aside the shield,[203] but to assert that the prosecution witness is ‘a horrible liar’, and that his own brother would not speak to him, is a sufficient imputation. A mere denial of the Crown case and of the evidence tendered to support it cannot qualify as an imputation[204] but such a denial may involve an attack on the character of the witness sufficient to constitute an imputation[205] Chief Justice Dixon drew a distinction in Dawson v R between a denial of the case for the prosecution or the evidence by which it is supported and ‘the use of matter which will have a particular or specific tendency to destroy, impair or reflect upon the character of the prosecutor or witnesses called for the prosecution’.[206]
(b) Common Law and Statutory Discretion. Queensland,[207] the ACT[208] and Victoria[209] expressly provide that the leave of the judge must first be obtained (in the absence of the jury) before any questions are asked as to prior crimes or bad character. But there is clear authority for an overriding judicial discretion to refuse to permit cross-examination of the accused as to character, even when it is permissible under the relevant legislation.[210] Even in the States which have specific legislative provisions requiring that the leave of the judge (in the absence of the jury) must first be obtained before any questions are asked as to bad character (Queensland, Victoria and the ACT), it appears that a discretion still operates in circumstances where such leave is not required.[211] The statutory discretion requiring that the leave of the judge must first be obtained, has been interpreted to place a heavy onus on the party seeking to cross-examine, so that leave is only granted in ‘exceptional’ circumstances. This is particularly true in cases where the accused has made imputations against prosecution witnesses as an integral part of his defence.[212] But where it is simply a question of the common law discretion, the House of Lords in Selvey v DPP[213] has left the issue in the hands of the trial judge, declining to hold that the discretion should generally be exercised in favour of the accused when imputations made by him against the prosecution witnesses were necessary for the proper development of his defence. In general, the Selvey view has been followed in Australia.[214] In Western Australia, the Full Court accepted that there was no general rule governing the exercise of the discretion but seemed to take a wide view of its scope as a device to ameliorate the harsh operation of a strict construction of the ‘imputations’ proviso.[215] Chief Justice Bray of the South Australian Supreme Court ‘adopted the principle that the discretion should only be exercised against the accused in exceptional circumstances,[216] but this has been a minority view.[217] Justice White in R v Beech,[218] after an examination of the authorities, rejected the view that there is some ‘bias or fetter upon the discretion.’ Nevertheless, the Supreme Court in R v Bransden[219] did ‘not think it appropriate in this case for the Court of Criminal Appeal to decide [which view should prevail’. Justice Aickin (with whom Acting Chief Justice Gibbs and Justice Mason agreed) considered in Matusevich v R[220] that even if the Crown could cross-examine an accused as to bad character when he had given evidence against a co-accused,[221] ‘it should not be allowed in the absence of prior permission from the trial judge and that cases where it may prove to be proper to grant such permission are likely to be extremely rare.’ This approach does not appear to be consistent with the Selvey approach. Different criteria have been suggested in relation to discretionary prevention of cross-examination of the accused as to character.[222]
(c) Purpose of Cross-Examination. It seems that the only purpose of the cross-examination permitted under this legislation is to discredit the accused.[223] Thus, if the accused does not himself give evidence, even if he makes imputations against a prosecution witness, it will not be possible for the prosecution to adduce evidence of his other misconduct—the evidence goes only to the accused’s credibility as a witness.[224] In R v May,[225] it was decided that it was a matter of discretion, not duty, for the trial judge to warn the jury not to use his convictions to show the accused was a person with a propensity to commit crimes. But this view was rejected by Justice Aickin in Matusevich v R[226]—the warning should always be given.
The New South Wales and South Australia legislation differs substantively from that of the other States. In NSW[227] there is a discretion on the part of the trial judge to prevent cross-examination of an accused as to his record. Where such cross-examination is permitted it is limited to matters which are relevant to credibility alone. The shield is not lost unless the ‘main purpose’ of the cross-examination of the prosecution witnesses by the defence is to ‘raise an issue as to the witness’ credibility’. In South Australia,[228] the shield is not lost where the imputations are ‘such as would necessarily arise from a proper presentation of the defence’. Moreover, in both jurisdictions, imputations relating to conduct during the events of the alleged crime, the investigation, or the trial cannot lead to loss of the protection.
• Evidence Against Co-accused. In all jurisdictions there are provisions similar to s 399(5) of the Victorian Crimes Act 1958. It states that an accused may not be cross-examined as to prior convictions and bad character unless ‘(c) he has given evidence against[229] any other person charged with the same offence’:
(a) ‘Charged with the Same Offence’. Not all persons who are jointly tried are charged with the ‘same offence’ within the meaning of the legislation—it was narrowly construed by the House of Lords in Commissioner of Police for the Metropolis v Hills[230] to mean the same offence in all respects. In NSW the term used is ‘person jointly charged with him in the same proceedings[231] and in Queensland the exception reads ‘he has given evidence against any other person charged in that criminal proceeding’.[232]
(b) Discretion. There is strong authority that no judicial exclusionary discretion exists where it is not the Crown but a co-accused who seeks to take advantage of the legislation: the House of Lords agreed in Murdoch v Taylor[233] (Lord Pearce dissenting) that ‘a trial judge has no discretion whether to allow an accused person to be cross-examined as to his past criminal offences’ by counsel for the other accused when such questioning is permitted under the legislation.[234] This view was adopted by Justice Stephen, and arguably the rest of the High Court, in Matusevich v R[235] However, the dissent of Lord Pearce in Murdoch v Taylor should be noted. He cited[236] the Tasmanian Court of Criminal Appeal decision, Hill v R[237] for the proposition that a trial judge does have a discretion to stop cross-examination by an accused of a co-accused, although ‘the exercise of such a discretion would be within fairly narrow limits and the prima facie right could only be withheld for good judicial reasons’. Justice Jenkinson (with whom Chief Justice Young agreed) in R v Darrington and McGauley[238] supported the majority view of the House of Lords in Murdoch v Taylor, even though he held that a trial judge had a discretion to exclude similar fact evidence tendered by an accused which suggests that a co-accused has bad character.
(c) Cross-examination by the Crown. Where the prosecution seeks to cross-examine under this provision it seems likely in most jurisdictions that the court has a discretion to grant leave.[239] But, in Matusevich v R, two of the five members of the High Court were of the opinion that, having regard to the terms of the Victorian statute,[240] the prosecution has no right to seek leave to cross-examine in these circumstances.[241]
[1] New South Wales Law Reform Commission, Working Paper on Evidence of Disposition, Govt Printer, Sydney, 1978 (NSWLRC WP) para 2.17 referring to the Defamation Act 1974 (NSW) s 15(2).
[2] R v Butterwasser [1948] 1 KB 4, 7 (CCA).
[3] JA Gobbo, D Byrne & JD Heydon, Cross on Evidence. 2nd Aust edn, Butterworths. Sydney, 1979, para 14.52.
[4] Maisel v Financial Times Ltd (1915) 84 LJKB 2145.
[5] Plato Films Ltd v Speidel [1961] AC 1090.
[6] [1980] 1 NSWLR 392, 395.
[7] [1961] AC 1090 (Lord Radcliffe dissenting).
[8] [1967] 1 QB 333, 340-1 (Lord Denning MR).
[9] Although they should be within a period relevant to current reputation and relate to offences likely to effect reputation: Re T and Director of Youth and Community Services [1980] 1 NSWLR 392.
[12] ibid. See R v Thompson [1966] 1 WLR 405.
[13] The term is used here in its dictionary sense. It refers to a person’s tendency to behave in a particular way, which tendency may be evidenced by reputation, opinion or specific conduct.
[14] Attwood v R [1960] HCA 15; (1960) 102 CLR 353.
[15] id, 359. The High Court cited Willes J in R v Rowton [1865] EngR 53; [1865] Le & Ca 520, 541; [1865] EngR 53; 169 ER 1497, 1506. But note the contrary view that such evidence is not relevant: Stewart v R [1921] HCA 17; (1921) 29 CLR 234, 241; Knight v Jones, ex parte Jones [1981] Qd R 98, 101, 109.
[16] R v Lowery (No 3) [1972] VicRp 109; [1972] VR 939, 945; Lowery v R [1974] AC 85, 102 (PC); R v Turner [1975] 1 QB 834; Knight v Jones, ex parte Jones [1981] Qd R 98; R v Murray [1980] 2 NSWLR 526; R v Gibb and McKenzie [1983] VicRp 78; [1983] 2 VR 155, 168-70; R v McBride (1983) 34 SASR 433.
[17] R v Rowton [1865] EngR 53; [1865] Le & Ca 520; 169 ER 1497; R v Butterwasser [1948] 1 KB 4, 6.
[18] Attwood v R [1960] HCA 15; (1960) 102 CLR 353, 359.
[19] Lowery v R [1974] AC 85, 102; R v Trimboli (1979) 21 SASR 577, 586-7 (White J).
[20] Attwood v R (1960)102 CLR 353, 359.
[21] R v Falconer-Atlee (1973) 58 Cr App R 348, 358; Stirland v DPP [1944] AC 315, 326-7 (Viscount Simon LC).
[22] R v Thompson [1966] QWN 47 (Gibbs J).
[23] R v Trimboli (1970) 21 SASR 577; R v Nilon (1981) 5 A Crim R 385.
[24] R v Rowton [1865] EngR 53; [1865] Le & Ca 520; 169 ER 1497; R v Butterwasser [1948] 1 KB 4, 6.
[25] Stirland v DPP [1944] AC 313, which permit evidence of ‘habits, disposition or conduct’ 326-7; Lowery v R [1974] AC 85, 101-2 (PC). Note the statutory provisions: Crimes Act 1900 (NSW) s 413 and Evidence Ordinance 1971 (ACT) s 56. Section 54, Evidence Ordinance 1955 (Singapore) as applied in the Christmas and Cocos (Keeling) Islands, permits evidence of ‘general reputation’, ‘general disposition’ and previous convictions.
[26] Lowery v R [1974] AC 85, 102.
[27] Evidence of guilt—R v Samuel (1956) 40’cr App R 8; to neutralise—R v Stalder [1981] 2 NSWLR 9, 18, 30. Note that s 412 Crimes Act 1900 (NSW) and s 71 Evidence Ordinance 1971 (ACT) permit evidence of bad character to be used as evidence of guilt.
[28] R v Redd [1923] 1 KB 104.
[29] R v Winfield [1939] 4 All ER 164, which is approved by the House of Lords decision in Stirland v DPP [1944] AC 315, 326-7: ‘an accused who ‘puts his character in issue’ must be regarded as putting the whole of his past record in issue’. Also R v Stalder [1981] 2 NSWLR 9, 29; but cf R v Shrimpton (1851) 2 Den 319, 322; 169 ER 521, 522.
[30] Stirland v DPP [1944] AC 315, 324-5; Jones v DPP [1962] AC 635, 698-9 (Lord Devlin). The House of Lords left the matter open in Selvey v DPP [1970] AC 304.
[31] Crimes Act 1900 (NSW) s 413B(1).
[32] Evidence Ordinance 1971 (ACT) s 70(1).
[33] R v Coulman (1927) 20 Cr App R 106, 108; R v McCaul and Palmer [1983] VicRp 102; (1983) 9 A Crim R 70 (VCCA). In New South Wales s 413B(1) expressly covers ‘good disposition or reputation’ established ‘directly or by implication’.
[34] R v Cutajar Unreported, (12 December 1980) (Vic CCA).
[35] Maxwell v DPP [1935] AC 309, 319; R v Samuel (1956) 40 Cr App R 8.
[36] [1972] HCA 71; (1972) 128 CLR 114, 123, 127.
[37] id, 133. Menzies J considered that the cross examination in he case went to the issues as well as credit, but via a ‘similar fact’ reasoning process rather than via a general bad character inference. But he did think that the direction suggested by Barwick CJ was always necessary. See also Aickin J in Watusevich v R [1977] HCA 30; (1977) 137 CLR 633, 658-9; R v Schneidas (No 2) (1980) 4 A Crim R 101, 116 (NSW CCA).
[38] [1894] AC 57.
[39] id, 65.
[40] [1978] HCA 29; (1978) 140 CLR 108, 116 (Stephen, Jacobs and Aickin JJ concurring).
[41] Attwood v R [1960] HCA 15; (1960) 102 CLR 353, 359. The evidence is inadmissible because its probative value is minimal and will invariably be outweighed by risks of prejudice and the danger that the fact finder will give it too much weight.
[42] The only requirement where such evidence is tendered by a co-accused is that it be relevant: Lowery v R [1974] AC 85, 102 (PC); Knight v Jones, ex parte Jones [1891] Qd R 98 (FC); R v Gibb and McKenzie [1983] VicRp 78; [1983] 2 VR 155, 170. But cf R v McBride (1983) 34 SASR 433, 442-3, 447.
[43] Markby v R [1978] HCA 29; (1978) 140 CLR 108, 116 (Gibbs ACJ); Perry v R (1983) 57 ALJR 110, 113 (Gibbs CJ), 123 (Brennan J) who also indicated that the prosecution cannot adduce evidence for the purpose of showing that the accused has a propensity to commit crimes of the sort with which he is charged. Also Sutton v R [1984] HCA 5; (1984) 58 ALJR 60, 72, 75 (Deane and Dawson JJ).
[44] PB Carter, Cases and Statutes on Evidence, Sweet & Maxwell, London, 1981, 535. DK Piragoff, Similar Fact Evidence, Carswell Co, Toronto, 1981, 14; PK Waight & CR Williams Cases and Materials on Evidence, Law Book Co, Sydney, 1980, 396; Cross on Evidence, para 14.2; JD Heydon, Cases and Materials on Evidence, Butterworths, London, 1975, 255.
[45] Which is close to ‘character’ and may be analogous to ‘disposition’.
[46] DPP v Boardman [1975] AC 421, 456-7 (Lord Cross).
[47] Stated by Gibbs ACJ in Markby v R [1978] HCA 29; (1978) 140 CLR 108, 116.
[48] (1983) 57 ALJR 110, 115-6.
[49] R v Ball [1910] UKLawRpAC 59; [1911] AC 47; R v Straffen [1952] 2 QB 911; O’Leary v R [1946] HCA 44; (1946) 73 CLR 566; R v Chandler [1956] 56 SR (NSW) 335.
[50] In particular, the House of Lords decision in DPP v Boardman [1975] AC 421.
[51] (1983) 57 ALJR 110, 121.
[52] ibid.
[53] (1982) 137 DLR (3d) 703, 706 (nine member joint judgment). See also R v McBride (1983) 34 SASR 433, 447 (Jacobs J).
[54] Cross on Evidence, para 14.42. Similarly, if an accused is charged with stealing one part of a cheque that has been torn in half, evidence that he had stolen the other half would be admissible to show that he had a motive to acquire the first half, not to show that he had a predilection for mutilated cheques. Carter, 539.
[55] A particular example relates to similar allegations—if different and independent witnesses make similar allegations about the behaviour of the accused on different occasions, the evidence can be received because of the improbability of the coincidence. See DPP v Boardman [1975] AC 421.
[56] (1983) 57 ALJR 110, 123-4.
[57] id, 114.
[58] id, 122.
[59] id, 119.
[60] id, 124. Note that he used other formulations as well.
[61] R v Perry (1981) 28 SASR 417, 421, 433, 449.
[62] (1983) 57 ALJR 110, 113-4; DPP v Boardman [1975] AC 421, 459 (Lord Cross).
[63] Although Wilson J quoted from the judgment of Gibbs ACJ in Markby v R [1978] HCA 29; (1978) 140 CLR 108, 117.
[64] (1983) 57 ALJR 110, 123.
[65] [1984] HCA 5; (1984) 58 ALJR 60, 62-3 (Gibbs CJ), 69 (Brennan J), 77 (Dawson J).
[66] Markby v R [1978] HCA 29; (1978) 140 CLR 108, 117 (Gibbs ACJ); DPP v Boardman [1975] AC 421, 444 (Lord Wilberforce); R v Chiron [1980] 1 NSWLR 218, 230.
[67] DPP v Boardman [1975] AC 421, 439 (Lord Morris).
[68] id, 456 (Lord Cross).
[69] Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367, 376 (Dixon J, as he then was).
[70] Perry v R (1983) 57 ALJR 110; Sutton v R (1984) 58 AUR 60. Thereby overruling R v Chee [1980] VicRp 32; [1980] VR 303. The Victorian Full Court in R v Chee [1980] VicRp 32; [1980] VR 303, 308-9, was ‘of the opinion that it is not a condition of the admissibility of similar fact evidence ... that the evidence shall have, not merely probative force ... but a high degree of probative force ... similar fact evidence may be admissible although its probative value is small’. The degree of probative value is only significant when considering application of the exclusionary discretion. It should be noted that the members of the court in Chee perceived the meaning of ‘relevance’ as that expressed in the earlier Victorian Full Court decision of R v Stephenson [1976] VicRp 34; [1976] VR 376, 380-1: evidence is ‘legally’ irrelevant if, despite ‘logical’ relevance, its ‘minimal’ probative value renders it ‘insufficiently relevant or too remotely relevant’. See also R v Donnelly [1957] TASStRp 4; [1957] Tas SR 28; R v Pfitzner (1976) 15 SASR 171, 178; R v Crawford [1981] Qd R 85, 86. It is probable that the requirement of substantial probative value extends to morally neutral similar fact evidence: Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367 but cf Mister Figgins Pty Ltd v Centrepoint Freeholds Pty Ltd [1981] FCA 15; (1981) 36 ALR 23, 30 (Fed Ct) but not to similar fact evidence adduced by a co-accused.
[71] Perry v R (1983) 57 ALJR 110, 113; Sutton v R [1984] HCA 5; (1984) 58 ALJR 60, 62.
[72] Perry, 123; Sutton, 68.
[73] Perry, 123; Sutton, 68-9.
[74] Perry, 121.
[75] Perry, 119; Sutton, 64.
[76] Sutton, 75. Dawson J applied the same standard as the jury must apply in dealing with circumstantial evidence.
[77] Sutton, 74.
[78] [1894] AC 57, 65 (PC).
[79] R v Heidt (1976) 14 SASR 574, 583 (Bray CJ) citing Noor Mohammed v R [1949] AC 182, 191-2 (PC); and Harris v DPP [1952] AC 694, 706-7 (HL); R v Sims [1946] KB 531, 539 (Goddard LCJ).
[80] R v Sims [1946] KB 531, 539 (Goddard LCJ); R v McIntosh [1967] TASStRp 11; [1967] Tas SR 103.
[81] Markby v R [1978] HCA 29; (1978) 140 CLR 108, 116-7 Gibbs ACJ (as he then was) citing the House of Lords in Harris v DPP [1952] AC 694, 705, 710.
[82] R v Bond [1906] UKLawRpKQB 91; [1906] 2 KB 389, 417 (Bray J).
[83] [1918] AC 221, 232 (HL); R v Heidt (1976) 14 SASR 574, 586 (Walters J).
[84] [1952] AC 694, 707 (HL).
[85] [1918] AC 221, 232-3.
[86] Leblanc v R (1976) 29 CCC (2d) 97, 104 (Dickson J).
[87] Another possibility, not allowing the prosecution to tender similar fact evidence in chief but only in rebuttal, seems to have been rejected by the High Court in R v Finlayson [1912] ArgusLawRp 76; (1912) 14 CLR 675.
[88] See Noor Mohammed v R [1949] AC 182, 192-3 (PC).
[89] R v Longford (1970) 17 FLR 37, 38 (Gibbs J); R v O’Sullivan (1975) 13 SASR 68, 74 (Bray CJ); contra R v Smith [1981] 1 NSWLR 193, 195 (CCA). See SJ Odgers, Evidence Research Paper No 2, Common Law of Evidence Areas of Disagreement and Uncertainty, Australian Law Reform Commission, Sydney, 1981, para 4.1.
[90] R v Bond [1906] UKLawRpKQB 91; [1906] 2 KB 389, 417 (CCA).
[91] R v Yuille [1948] VR 41, 46; R v Horry (1949) 68 NZLR 791, 798-9; Killick v R [1981] HCA 63; (1981) 37 ALR 407.
[92] See below.
[93] R v Murray [1980] 2 NSWLR 526, 535 (CCA); Knight v Jones, ex parte Jones [1981] Qd R 98 (FC).
[94] [1979] WAR 45, 48 (Burt CJ) who justified this decision on the basis of public policy. This case did not involve similar fact evidence, but rather evidence of admissions.
[95] [1972] VicRp 109; [1972] VR 939, 947.
[96] [1974] AC 85, 102.
[97] [1981] Qd R 98, 108. The rest of the Full court did not expressly consider whether a discretion existed in these circumstances, although they implied that it did not: (103) ‘similar fact evidence, showing a disposition or propensity for a witness to act in a certain way, ‘in disproof’ of an accused’s guilt is not to be excluded on reasons of policy or fairness’.
[98] [1980] 2 NSWLR 526, 535.
[99] [1980] VicRp 36; [1980] VR 353, 384-5.
[100] [1983] VicRp 78; [1983] 2 VR 155.
[101] s 14 and 15 of the Ordinance.
[102] However, the ACT provision does not permit cross-examination to show guilt via propensity. It is unclear whether this is the case in other jurisdictions. Attwood v R [1960] HCA 15; (1960) 102 CLR 353, 361; Cross on Evidence, para 15.20-1.
[103] Crimes Act 1900 (NSW) s 413A(3); Evidence Act 1977 ;Qld) s 15(2)(6).
[104] Attorney-General v Bowman (1791) 2 B & P 532; 126 ER 1423.
[105] Verry v Watkins [1836] EngR 549; (1836) 7 C & P 308; 173 ER 137—in an action for seduction, The ‘bad character’ of the plaintiff’s daughter was proved in mitigation of damages; Butterworth v Butterworth [1920] P 126, 145—‘bad character’ of petitioner’s wife proved on claim for damages for adultery. Note also relevant NSW and ACT legislation—Crimes Act 1900 (NSW) s 413 and Evidence Ordinance 1971 (ACT) s 56.
[106] Hollingham v Head [1858] EngR 535; (1858) 4 CBNS 388; 140 ER 1135, 1136-7: Manenti v Melbourne and Metropolitan Tramways Board [1953] VicLawRp 78; [1954] VLR 115, 116-7 (Sholl J) citing Dixon J (as he then was) in Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367, 376 (a criminal case).
[107] The Managers of the Metropolitan Asylum District v Hill (1882) 47 LTR 29, 35 (Lord Watson); Blake v Albion Life Assurance Society [1878] UKLawRpCP 67; (1878) 4 CPD 94.
[108] Kriss v City of South Perth [1966] WAR 210, 210-211 (D’Arcy J) concluded that the prior conduct evidence involved in the case lacked the ‘degree of relevancy necessary to render it admissible ... The evidence related to those other occasions is ‘too remotely relevant’ to be admissible ...’.
[109] Anderson v Commissioner for Railways (1960) 60 SR (NSW) 519, 526 (Owen J). In a later decision, Culley v Silhouette Health Studios Pty Ltd [1966] 2 NSWR 640, Herron CJ considered that questions of similarity or prejudice did not arise. The reason, it is suggested, was that the evidence in that case was not used for a character inference—it was used to establish the party’s knowledge.
[110] Mister Figgins Pty Ltd v Centrepoint Freeholds Pty Ltd [1981] FCA 15; (1981) 36 ALR 23, 28, citing Dixon J in Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367, 375-6. See also Hales v Kerr [1908] UKLawRpKQB 114; [1908] 2 KB 601. This approach has subsequently been followed by Ellicott J in Gates v City Mutual Life Assurance Society Ltd [1937] ArgusLawRp 41; (1982) 43 ALR 313, 327-8.
[111] HW Thompson Building Pry Ltd v Allen Property Services Pty Ltd [1983] FCA 166; (1983) ATPR 40-371, 44, 421.
[112] [1976] 1 Ch 119, 127 (CA).
[113] [1981] FCA 15; (1981) 36 ALR 23, 31.
[114] [1889] UKLawRpKQB 33; (1889) 22 QBD 391, 393.
[116] Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367.
[117] [1971] 1 NSWLR 713, 721 (CA).
[118] id, 715.
[119] [1962] UKHL 3; [1962] 1 All ER 623, 634.
[120] ‘Victims’ are discussed below.
[121] Cross on Evidence, para 14.56.
[122] Walker v Stephenson (1801) 3 Esp 284; 170 ER 617; Bishop of Durham v Beaumont [1808] EngR 94; (1808) 1 Camp 207; 170 ER 931; Provis v Reed [1829] EngR 448; (1829) 5 Bing 435; 130 ER 1129.
[123] (1979) 39 FLR 315.
[124] id, 348.
[125] [1981] Qd R 98, 103; citing Lowery v R [1974] AC 85, 102 (PC). However, the requirement of ‘relevance’ has provided considerable scope for trial judges to exclude what seems to be probative evidence, and could be applied to prevent the admission of ‘character’ evidence in this situation.
[126] [1982] VicRp 30; [1982] VR 326—decided in 1967.
[127] [1983] VicRp 78; [1983] 2 VR 155, 170-1.
[129] By means of specific instances of conduct, reputation and, probably, opinion evidence.
[131] (1871) 10 SCR (NSW) (L) 91, 100-1.
[132] Biggin was really a case under the legislation concerning cross-examination of the accused as to character; Griffin was more concerned with the issue of the accused’s state of mind, like Jackson.
[133] Cross on Evidence, para 14.53.
[135] Although the victim could not give evidence of the incident because of loss of memory. Note that in England, the ‘Portsmouth defence’ to a charge of assault or armed robbery, involving allegations of homosexual overtures by the victim, is well established: R v Bishop [1975] QB 274.
[136] (1981) 34 OR (2d) 524 (Ontario CA).
[137] id, 536-7. See also the recent US decision of State v Miranda 405 A 2d 622 (1978).
[138] R v Howe [1958] SASR 95; R v Beech (1978) 20 SASR 410.
[139] For convenience the term ‘complainant’ shall be used in the rest of the chapter as a shorthand version of this term.
[140] Lord Hailsham (ed) Halsbury’s Laws of England, 4th edn, Butterworths, London, 1976, vol 17, para 282ff; Victorian Law Reform Commissioner, Report No 5, Rape Prosecutions. Govt Printer, Melbourne 1976, section 12; JA Scutt, ‘Admissibility of Sexual History Evidence and Allegations in Rape Cases’ (1979) 53 ALJ 817, 820-1.
[141] R v Clarke [1816] EngR 146; (1817) 2 Stark 241; 171 ER 633.
[142] R v Cockcroft (1870) 11 Cox CC 410; R v Riley [1887] UKLawRpKQB 26; (1887) 18 QBD 481; R v McCready [1967] VicRp 36; [1967] VR 325; R v Thompson [1951] SASR 135. Including evidence of the complainant’s acts of intercourse with the accused after the alleged rape: R v Aloisio (1969) 90 WN (Pt 1) (NSW) 111 (CA).
[143] R v Bashir [1969] 3 All ER 692, 693; R v Holmes (1871) LR 1 CCR 334, 336; R v Thompson [1951] SASR 135.
[144] R v Tissington (1843) 1 Cox CC 48.
[145] R v Clarke [1816] EngR 146; (1817) 2 Stark 341; 171 ER 633.
[146] R v Bashir [1969] 3 All ER 692; R v Krausz (1973) 57 Cr App R 466.
[147] [1950] ArgusLawRp 37; (1983) 57 ALR 629, 631.
[148] Scutt, 817ff; Tasmanian Law Reform Commission, Report No 31, Report and Recommendations on Rape and Sexual Offences. Gov’t Printer, Hobart, 1982, para 83-5.
[149] Ranging from ‘rape’ (Evidence Act 1958 (Vic) s 37A), to ‘indecent assault’ (Evidence Acts (WA)s 36A; (SA) s 4. Criminal Law Sexual Offences Act 1978 (Qld) s 3), to sexual offence’ (Evidence Act 1929-79 (SA) s 4).
[150] Of sexual conduct with persons other than the accused.
[151] The questioning may extend to the witness’ personal associations with disreputable persons, his individual acts of misconduct or immorality and his past criminal convictions. Thus the common law permits a rape complainant to be cross-examined about her sexual relations with men other than the accused: Stokes v R [1960] HCA 95; (1960) 105 CLR 279.
[152] Bugg v Day [1949] HCA 59; (1949) 79 CLR 442, 471 (McTiernan J), 475 (Williams J) where a majority of the High Court held that a defendant in an accident case could be asked about prior convictions for traffic offences; Dixon J, as he then was, did not agree with this view (467), considering that cross-examination as to prior convictions was only acceptable where the convictions related to credibility. He admitted the evidence for a non-character purpose: to show bias. See also Pennell v Carruthers Bros Pty Ltd [1964] NSWR 377, 382; Taylor v Spencer [1965] NSWR 961.
[153] JH Buzzard, R May & MN Howard (ed) Phipson on Evidence, 12th edn, Sweet & Maxwell, London, 1976, para 1600; T Simos, ‘The Nature and Scope of Cross-Examination as to Credit’ in H Glass (ed) Seminars on Evidence, Law Book Co, Sydney, 1970, 180.
[154] Evidence Ordinance 1955 (Singapore) as applied to the Cocos (Keeling) and Christmas Islands, s 149(2)(c). See also the provisions in South Australia, Tasmania, Victoria, Western Australia and the Northern Territory.
[155] Cross on Evidence, para 10.56; Waight & Williams, 331.
[156] [1847] EngR 616; (1847) 1 Ex 91, 99; [1847] EngR 616; 154 ER 38, 42.
[157] Piddington v Bennett and Wood Pty Ltd [1940] HCA 2; (1940) 63 CLR 533, 545 (Latham CJ), 551 (Starke J), 553 (Dixon J), 558 (Evatt J); Driscoll v R [1977] HCA 43; (1977) 137 CLR 517, 538; R v Slobodian (1982) 30 SASR 161, 164.
[158] [1940] HCA 2; (1940) 63 CLR 533.
[159] Although members of the Court disagreed as to whether evidence relating to the witness’ explanation for his presence was relevant to whether he was in fact present. Latham CJ also stated that the witness’ capacity to observe those events would be a fact relevant to the fact in issue. (id, 545).
[160] LH Hoffmann, The South African Law of Evidence, 2nd edn, Butterworths, Durban, 1970, 327; MI Aronson, NS Reaburn & MS Weinberg, Litigation: Evidence and Procedure, 3rd edn, Butterworths, Sydney, 1982, para 23.48.
[161] R v Hanrahan [1967] 2 NSWR 717, 718; R v Richardson [1969] 1 QB 299. Text writers generally accept that reputation evidence may be given: Cross on Evidence, para 10.61. Although some cases suggest that a witness may only be asked if he knows of another witness’ reputation for veracity before expressing an opinion as to that veracity. R v Gunewardene [1951] 2 KB 600.
[162] Crimes Act 1900 (NSW) s 413; Evidence Ordinance 1971 (ACT) s 56(2).
[163] R v Richardson [1969] 1 QB 299, 304 (CA).
[164] Steinberg v R (1931) 4 DLR 8. 36-7.
[166] [1974] AC 85 (on appeal from the Victorian Supreme Court).
[167] [1965] AC 595, 609.
[168] [1974] AC 85, 103.
[169] id, 101.
[170] [1975] 1 QB 834, 842.
[172] No expertise is needed: R v Turner [1975] 1 QB 834; credibility is virtually a tact in issue: R v McKay [1967] NZLR 139: it amounts to asking the witness ‘to usurp the function of the jury in assessing matters going to credibility’: R v Ashcroft [1965] Qd R 81, 85 (Gibbs J, as he then was): Thomas v R [1972] NZLR 34; R v Schafferius [1977] Qd R 213.
[173] Cross on Evidence. para 10.58: Simos in Glass, 178-9; Bugg v Day [1949] HCA 59; (1949) 79 CLR 442, 475.
[174] [1964] NSWR 377. 382.
[175] Although Western Australia limits the provision to indictable offences: Evidence Act 1906 (WA) s 23(1).
[176] The Crimes Act 1900 (NSW) covers criminal cases only.
[178] Aronson et al, para 23.47; Waight & William, 331.
[179] JH Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at Common Law 3rd edn, Little. Brown & Co, Boston, 1940, vol 3, para 1003-5. SA Schiff, Evidence in the Litigation Process, Carswell Co. Toronto, 1978, vol 1, 509.
[180] Wigmore on Evidence, para 1003.
[181] Schiff, 509.
[182] This would explain the sexual conduct cases.
[183] Note that a party in a civil case, if he gives evidence, is treated like any other witness.
[184] Except in the ACT.
[185] Only in Crimes Act 1900 (NSW) s 413A(3).
[186] Criminal Evidence Act 1898 (UK) s 1(e): Evidence Act 1929 (SA) s 18v: Evidence Act 1910 (Tas) s 85(1)(d): Evidence Act 1906 (WA) s 8(1)(d): Evidence Ordinance 1971 (ACT) s 69. Note Evidence Act 1977 (Qld) s 15.
[187] Crimes Act 1900 (NSW) s 413A and B do not deal with the question whether an accused person may take refuge from answering questions which might tend to incriminate him in relation to the offence with which he is charged. This appears to have been an oversight on the part of the legislature—failing to enact s 15(2) of the Draft Criminal Evidence Bill recommended by the GB Criminal Law Revision Committee in their Eleventh Report, Evidence (General), HMSO. London. 1972, Cmnd 4991, (GB CLRC).
[188] The majority of the House of Lords in Jones v DPP [1962] AC 635: R v Cokar [1960] 2 QB 207.
[189] Minority view of Lords Denning and Devlin in Jones v DPP [1962] AC 635: R v Chitson [1909] UKLawRpKQB 165; [1909] 2 KB 945: R v Kennaway [1917] 1 KB 25. A similar view to this was expressed in High Court dicta in Attwood v R [1960] HCA 15; (1960) 102 CLR 353, 360-2.
[190] Crimes Act 19W (NSW) s 413A(2).
[191] Attwood v R [1960] HCA 15; (1960) 102 CLR 353: Malindi v R [1967] 1 AC 439: Stirland v DPP [1944] AC 315: Selvey v DPP [1970] AC 304.
[192] Crimes Act 1900 (NSW) s 413A(1)(b).
[193] Evidence Ordinance 1971 (ACT) s 700).
[194] [1962] AC 635.
[195] On the basis of the recommendations of the GB CLRC 73, 177.
[196] C Tapper ‘Criminal Law Revision Committee 11th Report: Character Evidence’ (1973) 36 Modern Law Rev 56, 169.
[197] [1962] AC 635, 667 (Lord Denning), 701 (Lord Devlin).
[198] A similar NSW provision was repealed in 1974 and replaced by s 413A(4) developed by the UK CLRC.
[199] The provision was introduced in 1983: s 18(2) of the Evidence Act 1929 (SA).
[200] It was thought at one time that the statutory exception could not be invoked by the prosecution where the imputation relied on was a necessary part of the defence: R v Preston [1909] UKLawRpKQB 29; [1909] 1 KB 568; R v Bridgwater [1904] UKLawRpKQB 190; [1905] 1 KB 131; Stirland v DPP [1944] AC 315. 327. This view still prevails in Scotland: O’Hara v HM Advocate [1948] SC (J) 90. However, it is now settled that, with one exception, words of the relevant statutes are to be given their ordinary meaning and that the shield may be thrown away even by an imputation which is an essential ingredient of the defence: Curwood v R [1944] HCA 40; (1944) 69 CLR 561: Dawson v R [1961] HCA 74; (1961) 106 CLR 1: Selvey v DPP [1970] AC 304; Cushing v R [1977] WAR 7 (FC): R v Bransden (1981) 27 SASR 474. The exception relates to trials for heterosexual rape: Selvey v DPP [1970] AC 304, 339.
[201] The Crown Prosecutor is not ‘the prosecutor’ for the purposes of the provisions—that word is deemed to connote the informant or instigator of the prosecution: R v Billings [1961] VicRp 21; [1961] VR 127.
[202] Imputations against police officers or other persons who are not called as witnesses for the prosecution do not constitute imputations within the legislation: R v Westfall (1912) 7 Cr App R 176.
[203] R v Rouse [1903] UKLawRpKQB 188; [1904] 1 KB 184.
[204] Curwood v R [1944] HCA 40; (1944) 69 CLR 561, 588; Dawson v R [1961] HCA 74; (1961) 106 CLR 1.
[205] R v Jones (1923) 17 Cr App R 117, 120.
[206] [1961] HCA 74; (1961) 106 CLR 1, 9. Cross on Evidence, para 15.28: the distinction was first drawn by Chief Justice Lord Hewart.
[207] Evidence Act 1977 (Qld) s 15(2).
[208] Evidence Ordinance 1971 (ACT) s 70(1).
[209] Crimes Act 1958 (Vic) s 399(e)(ii).
[210] Selvey v DPP [1970] AC 304 (HL); Matthews v R [1973] WAR 110 (FC): Cushing v R [1977] WAR 7 (FC): R v Jessop [1974] TASStRp 7; [1974] Tas SR 64 (CCA): R v Bradshaw (1978) 18 SASR 83; R v Karan (1980) 26 SASR 408.
[211] Matusevich v R [1977] HCA 30; (1977) 137 CLR 633, 654 (High Court, on appeal from the Victorian Supreme Court); R v Ditroia and Tucci [1981] VicRp 28; [1981] VR 247, 252 (FC).
[212] R v Brown [1960] VicRp 62; [1960] VR 382, 398; Dawson v R (1961) 106 CLF; 1, 17, 21; Donnini v R [1972] HCA 71; (1972) 128 CLR 114, 130, 135; R v McCaul and Palmer [1983] VicRp 102; (1983) 9 A Crim R 70 (VCCA).
[213] [1970] AC 304. But see R v Britzman [1983] 1 All ER 369; R v Watts (1983) 77 Cr App R 126.
[214] R v Jessop [1974] TASStRp 7; [1974] Tas SR 64, 72, 81, 88 (CCA); Matthews v R [1973] WAR 110, 113, 117; R v Beech (1978) 20 SASR 410, 420; R v Langford [1974] Qd R 67.
[215] Cushing v R [1977] WAR 7, 13, 16.
[216] R v Pfitzner (1976) 15 SASR 171, 180-1; R v Bradshaw (1978) 18 SASR 83, 89.
[217] The majority in R v Pfitzner adopted the Selvey view of the scope of the discretion. See also R v Karan (1981) 26 SASR 408.
[218] (1978) 20 SASR 410, 420.
[219] (1981) 27 SASR 474, 479.
[220] [1977] HCA 30; (1977) 137 CLR 633, 655.
[221] A doubtful proposition—see Stephen J id, 640-1.
[222] In R v Cook [1959] 2 QB 340, 348 emphasis was placed on whether an attack on a prosecution witness was deliberately calculated to completely discredit him. In R v Brown [1960] VicRp 62; [1960] VR 382, 398, Smith J suggested a number of different factors. See also R v Gramanatz [1962] QWN 41.
[223] R v Morrison (1911) 6 Cr App R 159; R v Cook [1959] 2 QB 340.
[224] R v Butterwasser [1948] 1 KB 4; R v Thomas (1956) 74 WN (NSW) 77.
[225] [1959] VicRp 88; [1959] VR 683.
[226] [1977] HCA 30; (1977) 137 CLR 633, 659-60. The other High Court justices did not consider this matter.
[227] Crimes Act 1900 (NSW) s 413A(4).
[228] Evidence Act 1929 (SA) s 18(2), (3).
[229] An accused gives evidence ‘against’ his co-accused if his evidence, examined objectively, supports the prosecution’s case against the co-accused in a material respect, or undermines the co-accused’s defence. It is not necessary that the accused should have a hostile intent against his co-accused: Murdoch v Taylor [1965] AC 574 (HL); Matusevich v R [1977] HCA 30; (1977) 137 CLR 633.
[231] s 413A(5) Crimes Act 1900 (NSW).
[232] s 15(2)(d) Evidence Act 1977 (Qld). See also s 1(f)(iii) of the Criminal Evidence Act 1898 (UK), as amended in 1979.
[234] id, 592 (Lord Donovan).
[235] [1977] HCA 30; (1977) 137 CLR 633, 641 (Stephen J); 653-5 Aickin J (with whom Gibbs ACJ and Mason J agreed) restated the House of Lords view without demur. See also R v Ransom (1979) 22 SASR 283, 285; R v Ditroia and Tucci [1981] VicRp 28; [1981] VR 247, 252 (FC).
[236] [1965] AC 574, 587-8.
[237] [1953] TASStRp 9; [1953] Tas SR 54, 57.
[238] [1980] VicRp 36; [1980] VR 353, 385.
[239] Murdoch v Taylor [1965] AC 574. In Matusevich v R [1977] HCA 30; (1977) 137 CLR 633 the nature of this discretion was discussed.
[240] s 399(5)(c) Crimes Act 1958 (Vic) expressly requires the prior permission of the trial judge before the imputations exception may be used, but does not extend that requirement to this exception.
[241] [1977] HCA 30; (1977) 137 CLR 633, 641-3 (Stephen J), 646-7 (Murphy J). the other justices did not express an opinion, but see Aickin J, 654-5. Cross on Evidence, para 15.37; R v Lovett [1973] 1 All ER 744.
188. Types of Identification Evidence. It is accepted that an eyewitness may identify the alleged wrongdoer by pointing to him in the courtroom and may also give evidence of identifications made out-of-court—whether in line-ups, from photographs, etc. In addition other people may give evidence of the out-of-court identification.[1] There is uncertainty, however, about whether and on what basis such evidence of an out-of-court identification may be given. This issue has been considered above in the discussion of hearsay evidence.[2]
189. Criminal Trials Exclusionary Discretions. The trial judge has a discretion to exclude evidence where its prejudicial effect outweighs its probative value.[3] This discretion is available to exclude courtroom identification and evidence of identification parades, showings and police photographs. However, while there is authority in England which would support exclusion of dock identification where it is the identification first made by the witness, and photographic identification, the Australian approach appears to be to admit it notwithstanding its low probative value and prejudicial effect but require a suitable warning.[4] The discretion is also available to exclude evidence of photo identification and to exclude the photographs used where, for example, they show the accused in prison clothes or hand cuffed.[5] Again however, there is a stricter approach taken in England.[6] In Australia reliance tends to be placed on appropriate warnings. In England the evidence is excluded unless the accused directly or indirectly raises the matter.[7] Another discretion available is that to exclude improperly or irregularly obtained evidence—for example, improperly obtained evidence of identification out-of-court by identification parade or photograph.[8]
190. Use of Photos where Line-Up Possible. The disparities between the Australian and English approaches do not generally create uncertainty for Australian courts because of High Court authority. An exception, however, is the situation where police have used photographs for identification when a line-up could have been held. The question was considered in Alexander’s case but no clear answer emerged. Justice Mason (with whom Justice Aickin agreed) took the view that, while the trial judge should weigh the prejudicial effect of evidence against its probative value, the fairness or otherwise of the identification does not affect the decision. He held also that the discretion formulated in Bunning v Cross[9] had no application.[10] Chief Justice Gibbs however, held that the trial judge has a discretion to exclude evidence if rules of admissibility operate unfairly against the accused. He said that the trial judge should take into account the duty of investigating police to guard against miscarriages of justice.[11] Justice Stephen (dissenting) held that the trial judge should generally exclude evidence of photo identification where the detection process was ended—eg a suspect has been identified so that an identification parade could be held. His Honour, however, recognised that photos may have to be used in the detection phase and evidence of their use may in that situation be unavoidable. There, His Honour stated that the protection of the discretion to exclude prejudicial evidence should be considered.[12] Justice Murphy (dissenting) referred to the existence of a discretion with two aspects—to exclude evidence obtained ‘unfairly or improperly’ and to exclude prejudicial evidence. He advocated an approach similar to that of Justice Stephen in the application of judicial discretionary powers to exclude evidence of photo-identification.[13]
191. Judicial Warning—Mandatory or Discretionary? Until recently the law seemed clear. In England, the giving of a general warning about the dangers of identity evidence was not mandatory. However, in R v Turnbull,[14] the Court of Appeal he Id that where the case against an accused person depends ‘wholly or substantially’ on disputed identification evidence, a detailed warning for the need for caution before acting on it should be given. It stressed that the reason for the warning should be stated. The jury should be warned that not only can one identification witness appear convincing and yet be unshaken, but the same is true when a number of witnesses identify an accused. Attention should be drawn to any material discrepancy between the description of the accused given to the police by the witness and the accused’s actual appearance.[15] As to the warning, the Court of Appeal stated that the Judge should warn the jury of the special need for caution before convicting in reliance on the correctness of the identification. This warning need be in no particular words but should include the reason for the warning, the possibility of a mistaken witness being a convincing one and a caution that several witnesses may all be mistaken.[16] The Court went on to say that the judge must also indicate any specific weakness in the prosecution evidence and invite the jury to examine the circumstances in which the identification was made Where the evidence is of good quality it may be put to the jury without more, subject to the warning being given. However, where in the opinion of the judge the identification evidence is of poor quality tie should direct an acquittal unless there is ‘other evidence which goes to support the correctness of the identification’.
192. The weight of Australian authority is to vie effect that the identification warning is not compulsory, but need only be given where the circumstances warrant it. The High Court judgments in Kelleher v R[17] do not suggest that in every case involving identification problems there should be a mandatory warning of the dangers of acting on identification evidence, although the High Court recognised that frequently such cases involve dangers. It was said by Justice Gibbs that:
It is in practice generally desirable that where the case for the prosecution includes evidence of visual identification by a person previously unfamiliar with the accused, an appropriate warning should be given to the jury, since jurors may not appreciate as fully as a judge may do, or even at all, the serious risk that always exists that evidence of that kind may be mistaken.
Justice Gibbs went on to say:
If a warning is necessary, the duty to give it will not be satisfactorily discharged by the perfunctory or half-hearted repetition of a formula, and a warning in general terms will not alone be sufficient; the jury should be given careful guidance as to the circumstances of the particular case, and their attention should be drawn to any weaknesses in the identification evidence.[18]
Kelleher falls within a line of authorities to the effect that an appropriate warning should be given where the case for the prosecution relies heavily upon eyewitness identification of a stranger.[19]
193. The propositions in R v Turnbull have been approved in decisions of Courts of Criminal Appeal in Victoria, Tasmania and Western Australia.[20] The influence of R v Turnbull can also be seen in the detail now expected of trial judges in those jurisdictions.[21] In New South Wales, the Court of Criminal Appeal has been invited on a number of occasions to review the law in the light of R v Turnbull but has not done so.[22]
194. Power to Direct Acquittal. It has been said that the trial judge should consider directing an acquittal where the accused was pointed out to the witness. The English Court of Criminal Appeal may quash a conviction if police have attempted to point the accused out beforehand to someone who has been asked to identify him.[23] It was also stated in Turnbull’s case that:
Where in the opinion of the judge the quality of the identifying evidence is poor, he should withdraw the case from the jury and direct an acquittal unless there is other evidence which supports the correctness of the identification.[24]
‘Other evidence’ may be corroboration or something else convincing. An example of supporting evidence not amounting to corroboration in the technical sense is an unexplained coincidence of the type found in R v Long.[25] In that case the three identifying witnesses had only fleeting glimpses of the accused; but his behaviour after the robbery was unusual and it was an odd coincidence that the man identified had behaved in this way.
In Australia, the position is reflected in the following passage from the judgment of the High Court in Davies and Cody v R:[26]
We think the view accepted in England, and, as far as we know, elsewhere in the Dominions, where the provisions of the Criminal Appeal Acts have been adopted, should be applied in Victoria. That view, as we understand it, is that, if a witness whose previous knowledge of the accused man has not made him familiar with his appearance has been shown the accused alone as a suspect and has on that occasion first identified him, the liability to mistake is so increased as to make it unsafe to convict the accused unless his identity is further proved by other evidence direct or circumstantial.
The Turnbull formula has been quoted with approval in Tasmania and Western Australia.[27] It has not been elsewhere.[28] The issue is complicated by a divergence of view of whether the trial judge generally has the power to direct the jury to acquit where the prosecution evidence, if accepted, would raise a prima facie case, but, in his view, it would be unsafe to convict the accused on the basis of it. There is English authority supporting the existence of such a power.[29] It appears to have been a practice followed in Victoria and New South Wales but not in Western Australia, Tasmania and South Australia.[30]
[1] JA Gobbo, D Byrne & JD Heydon, Cross on Evidence, 2nd Aust edn, Butterworths, Sydney, 1979, para 2.23; R v Christie [1914] UKLawRpAC 20; [1914] AC 545; R v Osborne [1973] QB 678; Alexander v R [1981] HCA 17; (1981) 34 ALR 289.
[2] See above para 84-5 (App C).
[3] JD Heydon, ‘Evidence of Identification: The Law’ (1982) 14 Australian Journal of Forensic Sciences 134, 141.
[4] R v Howick [1970] Crim L Rev 403; Davies and Cody v R [1937] HCA 27; (1937) 57 CLR 170, 181; Alexander v R [1981] HCA 17; (1981) 34 ALR 289, in particular 315-6 (Mason J); R v Williams [1983] VicRp 116; [1983] 2 VR 579, 582; R v Smith (1983) 33 SASR 558.
[5] Alexander v R [1981] HCA 17; (1981) 34 ALR 289, 292-4; R v Williams [1983] VicRp 116; [1983] 2 VR 579, 585.
[6] id, 315; Duff v R (1979) 28 ALR 663, 682-3.
[7] R v Wainwright 19 Cr App Rep 52; DF Libling, ‘The Use of Photographs for the Purpose of Identification’ (1978) Crim L Rev 343, 345.
[8] Bunning v Cross [1978] HCA 22; (1978) 52 ALJR 561; R v Clune [1982] VicRp 1; [1982] VR 1, 11.
[9] [1978] HCA 22; (1978) 52 ALJR 561, 567-8.
[10] Alexander v R [1981] HCA 17; (1981) 34 ALR 289, 316-7.
[11] id, 294.
[12] id, 300, 306.
[13] id, 319-21; cf R v Burchielli [1981] VicRp 61; [1981] VR 611, 621 (McGarvie J); R v Aziz [1982] 2 NSWLR 322 considered the issue but in the context of photo-identification in the detection phase.
[14] [1976] 3 All ER 549. It would seem that it is not confined to the ‘fleeting glimpse’ situation R v Hayes [1977] 2 All ER 288; E Grayson, ‘Identifying Turnbull’, [1977] Crim L Rev 509; Criminal Law Reform Committee, New Zealand, Report on Identification, NZGP, Wellington, 1978, 31.
[15] Heydon, 138. The English position is thus now similar to that which prevails in Ireland where the law stipulates a mandatory warning: People (Attorney General) v Casey (No 2) (1963] IR 33.
[16] [1976] 3 All ER 549, 551-2.
[17] [1974] HCA 48; (1974) 131 CLR 534, 551.
[18] [1974] HCA 48; (1974) 131 CLR 534, 551. As to warnings to be given re photo-identification see R v Doyle [1967] VicRp 82; [1967] VR 698; R v Griffiths [1930] ArgusLawRp 18; [1930] VLR 204; R v Martin [1955] VicLawRp 82; [1956] VLR 87.
[19] R v Gaunt [1964] NSWR 864 (CCA); R v Wright (No 2) [1968] VicRp 17; [1968] VR 174, 178-9; R v Burchielli [1981] VicRp 61; [1981] VR 611, 616.
[20] R v Burchielli [1981] VicRp 61; [1981] VR 611; McCusker v R [1977] Tas SR 140; Bennett v R (1982) 6 A Crim R 381 (Tas CCA); Sutton v R [1978] WAR 94; query, R v Beble [1979] Qd R 278. As each case concerned identification by strangers it was not necessary to reconcile the authorities. R v Turnbull was not referred to in Duff v R (1979) 28 ALR 663 (Fed Ct).
[21] See for example the analysis in R v Burchielli [1981] VicRp 61; [1981] VR 611; R v Clune [1982] VicRp 1; [1982] VR 1; R v Dickson [1983] VicRp 19; [1983] VR 227. But cf R v Williams [1983] VicRp 116; [1983] 2 VR 579, 585-6; R v Haidley [1984] VicRp 18; [1984] VR 229, 230, 247-8, 255.
[22] See P Byrne, Identification Evidence (LLM Thesis—University of Sydney, 1982) 4.82; R v Maarroui (1970) 92 WN (NSW) 757 remains the leading case; R v Aziz [1982] 2 NSWLR 322, 328.
[23] R v Dickman (1910) 5 Cr App Rep 135; R v Bundy (1910) 5 Cr App Rep 270.
[24] [1976] 3 All ER 549, 550.
[26] [1937] HCA 27; (1937) 57 CLR 170, 182. See also Craig v R [1933] HCA 41; (1933) 49 CLR 429; R v Preston [1961] VicRp 115; [1961] VR 761.
[27] McCusker v R [1977] Tas SR 140; Sutton v R [1978] WAR 94.
[28] R v Aziz [1982] 2 NSWLR 322; R v Williams [1983] VicRp 116; [1983] 2 VR 579, 584; R v Smith (1983) 32 SASR 219.
[29] R v Young [1964] 1 WLR 717; R v Hipson [1969] Crim L Rev 85; R v Falconer-Atlee (1973) 58 Cr App R 349; R v Mansfield [1977] 1 WLR 1102; contra R v Barker (1975) 65 Cr App R 287. See also S Mitchell (ed) Archbold: Criminal Pleading, Evidence & Practice, 40th edn, Sweet and Maxwell, London, 1979, para 575, 575a, 577; HH Glass ‘The Insufficiency of Evidence to Raise a Case to Answer’ (1981) 55 ALJ 842, 844ff.
[30] Glass, 842ff; Wilson v Kuhl [1979] VicRp 34; [1979] VR 315; R v Prasad (1979) 23 SASR 101, (Mohr J dissenting): cf the statement of Brennan J in Perry v R (1983) 57 ALJR 110. 124-5 which appears to support the view that a trial judge in South Australia can direct an acquittal. The trial judge may invite the jury to stop the trial at any time after the conclusion of the prosecution case: Glass, 843 and cases cited. In Chamberlain v R [1983] FCA 78; (1983) 46 ALR 493, 496, Bowen CJ and Forster J could ‘see no warrant for adopting the English practice in the Northern Territory’.
195. A Statutory Privilege. At common law there is no privilege attaching to communications between spouses.[1] Throughout the States and Territories, however, there is legislation that creates a privilege in respect of spousal communications. They can be divided into two classes, those that relate to communications between spouses and those that relate to communications to spouses:
• ‘Communications Between Spouses’ Provisions. There are provisions in New South Wales, the Northern Territory and the ACT:
― New South Wales. Section 11 of the Evidence Act, 1898.[2] Section 11(1) states:
A husband shall be competent but not compellable to disclose communications made between him and his wife during the marriage, and a wife shall be competent but not compellable to disclose communications made between her and her husband during the marriage.[3]
The form of the section makes it clear that its protection is meant to cover all communications passing between them during marriage and confers the privilege on both spouses. It is not limited to proceedings of a particular kind.
The privilege is available in both civil and criminal proceedings.[4]
― Australian Capital Territory. Under s 54 of the Evidence Ordinance 1971 a spouse is not compellable, in civil proceedings, to disclose communications passing between them. No express privilege is conferred in criminal proceedings—thus a spouse will be compellable to disclose such communications when compellable as a witness.
― Northern Territory. A spouse is not compellable to ‘disclose communications between them in criminal proceedings unless the spouse is a compellable witness in the criminal proceedings’. This will depend upon the precise offence being tried.[5]
• ‘Communications to the Spouse’ Provisions.[6] The provisions differ as to the type of proceedings in which they apply. In Tasmania the privilege is available in all proceedings.[7] Elsewhere:
― Victoria. The privilege is not available in any criminal proceeding or to any proceeding for the grant, variation or revocation of bail.[8]
― Queensland. The privilege is available only in a criminal proceeding in which the other spouse is charged.[9]
― South Australia. The privilege is available only in criminal proceedings.[10]
― Western Australia. The privilege is available in all civil proceedings other than matrimonial proceedings and criminal proceedings where the spouse is a compellable witness[11]
There are uncertainties about the meaning of these provisions:
• Meaning of ‘Communication’ to a Spouse. There is differing authority about the original NSW legislation which in terms conferred a privilege upon a spouse in respect of the communication to that spouse. In Moore v Whyte (No 2)[12] the judge at first instance interpreted the 1898 New South Wales legislation as preventing a spouse only from saying what was said to him by the other spouse and as not preventing him from saying what he himself said to the other. This was a correct literal interpretation of that legislation. Chief Justice Street, however, thought he had taken a wrong view.[13] He said, in his judgment on the appeal:
The word ‘communication’ is a comprehensive word of very wide meaning and ... it is clear that the intention of the Legislature was to place the seal of the law upon all communications of any kind passing between them during the marriage. To purport to observe the strict meaning of the words used, while so interpreting them as completely to nullify this intention is not permissible in our opinion.[14]
Research has not revealed any decisions in other jurisdictions which resolve this difference of view.
• Former Spouse. It was held in Shenton v Tyler[15] that legislation in similar terms[16] relating to privilege did not apply to former spouses. The words ‘husband’ and ‘wife’ in the legislation were interpreted as not including a former spouse.
It was held that there has never been a rule at common law that communications between husband and wife during the marriage are privileged.[17] Sir Wilfred Greene said:[18]
If my view is right that the only rule that exists is that contained in s 3 of the Act of 1853, it remains to consider whether, under that section, upon its true construction, the privilege continues to exist after the marriage has come to an end. In my opinion it does not. The section in terms relates only to husbands and wives, and no principle of construction known to me entitles me to read into the section a reference to widowers or widows or divorced persons.
He acknowledged the existence of a different view:
I am aware that this view is not in agreement with that expressed by some text-book writers. But their view is in most cases based on the false analogy of Monroe v Twisleton[19] Doker v Hasler[20] and O’Connor v Marjoribanks.[21]
In Rumping v DPP[22] Lord Hodson considered[23] the inconsistency between Shenton v Tyler and the other cases. He said:
I agree with Greene MR [in Shenton v Tyler] that these cases [Monroe v Twisleton, Doker v Hasler and O’Connor v Marjoribanks] relate to the competence of the spouse as a witness and that the real point of Monroe v Twisleton was that the incompetence of one spouse to give evidence against the other persisted, even after the dissolution of the marriage, where the subject matter of the evidence was anything which happened during the coverture. This, I think was the view taken by Lord Goddard CJ giving the judgment of the Court of Criminal Appeal in Reg v Algar[24] ...
Lord Morris[25] found himself in ‘respectful agreement with much that was said by Greene MR in his judgment in Shenton v Tyler ...’. Lord Pearce agreed[26] with the opinion of Lord Morris, but Lord Reid was not convince[27] that all the arguments used in Shenton v Tyler were sound. Viscount Radcliffe, the only dissenting Law Lord in Rumping’s case, said[28] that in Shenton v Tyler the word ‘privileged’ was used by the court in a strict sense when it came to the conclusion that there had never been a rule at common law that communications between husband and wife during the marriage were privileged. He stated he thought that ‘it was a recognised principle of the common law that such communications should be protected from being divulged in evidence’ and, therefore, did not, in that sense agree with that conclusion.[29]
196. Commonwealth Legislation. By s 100(1) of the Family Law Act 1975, patties to proceedings under the Act are competent and compellable witnesses; under s 100(2) in proceedings under the Act ‘the parties to a marriage are competent and compellable to disclose communications made between them during the marriage; and by s 100(3) subsection (2) applies to communications made before as well as after the commencement of the Act.
197. The Common Law.[30] There have for over two centuries been authoritative statements that the common law recognizes no privilege protecting a patient’s confidential communication to his doctor. Although lack of common law privilege is established, judicial comment in cases where no privilege has been claimed shows that breaches of professional confidence will not be encouraged. Clear need for the testimony will have to be demonstrated. Courts have disapproved of the volunteering of medical evidence of a confidential nature[31] and have not always compelled a witness to attend court and testify in breach of confidence. In Seyfang v GD Searle & Co[32] Justice Cooke stated the principles applied in English courts to be:
... the English courts will not as a general rule require an expert to give expert evidence against his wishes in a case where he has had no connection with the facts or the history of the matter in issue. The principle will apply with particular force where the expert cannot give the evidence required of him without a breach of confidence, and where the preparation of the evidence required of him would require considerable time and study. This fourth principle, if it be correct, establishes a distinction between expert evidence and evidence as to matters of fact. The distinction is relevant in determining how the courts should exercise their discretion under section 1 of the Act of 1856. It would be equally relevant in determining whether the court should set aside a subpoena issued in proceedings in this country.[33]
In Hunter v Mann[34] Lord Widgery endorsed the propositions in the British Medical Association handbook to the effect that:[35]
A doctor should refrain from disclosing voluntarily to a third party information which he has learnt professionally or indirectly in his professional relationship with a patient, subject to exceptions, including the following ... (2) the information is required by law.
As to the position of the doctor in court, Lord Widgery said:
[I]f a doctor, giving evidence in court, is asked a question which he finds embarrassing because it involves him talking about things which he would normally regard as confidential, he can seek the protection of the judge and ask the judge if it is necessary for him to answer. The judge, by virtue of the overriding discretion to control his court which all English judges have, can, if he thinks fit, tell the doctor that he need not answer the question. Whether or not the judge would take that line, of course, depends largely on the importance of the potential answer to the issues being tried.
The law relating to subpoenaed documents enables the court to give some protection to the confidentiality of documents. In McAuliffe v McAultffe[36] (ACT Supreme Court) a doctor objected to producing to the court his medical records on a patient, because of his moral obligation not to disclose information about this patient. Chief Justice Blackburn ruled that in the ACT the doctor’s objection was not upheld by the law and that the documents must be produced. He ruled, however, that a subpoena duces tecum cannot be used as a substitute for discovery, which is limited to the parties to an action. Accordingly, on the basis that the law does not compel a person not a patty to an action, and not called as a witness, to make a document which belongs to him available to a party unless the document is itself admissible in evidence upon proof by a witness other than the person requested to make it available, the party who had called the doctor was not entitled to inspect the medical records produced to the court.
198. Thus while it is said that there is no privilege, courts will on occasions protect the confidential communication. The grounds and circumstances are, however unclear.
199. The common law applies in New South Wales, Queensland, South Australia and Western Australia as well as in the Australian Capital Territory. There is no statutory privilege in any of those jurisdictions. It applies to a limited extent in those States and Territories where legislation applies.
200. Legislation. There is no Commonwealth legislation. In Victoria, Tasmania and the Northern Territory a statutory protection is created arising out of the doctor-patient relationship. The Victorian legislation is quoted for purposes of comparison. It confers a privilege on the patient of a physician or surgeon in civil proceedings by providing that:
No physician or surgeon shall without the consent of his patient divulge in any civil suit action or proceeding (unless the sanity or testamentary capacity of the patient is the matter in dispute) any information which he has acquired in attending the patient and which was necessary to enable him to prescribe or act for the patient.[37]
201. The legislation differs in several important ways. In addition, there are unresolved issues about its interpretation:
• Criminal Purpose and Insurance. The Tasmanian and Northern Territories provisions also only apply in civil proceedings but they exclude
― any communication made for a criminal purpose;
― evidence of statements or representation to a medical practitioner in respect of the effecting of life insurance.
The Victorian provision does not.
• Testamentary Capacity. The exception relating to testamentary capacity is not included in the Tasmania and Northern Territory provisions.
It is unclear what is meant by ‘sanity’ in the exception. In Hare v Riley and AMP Society, Justice Norris declined[38] to define sanity or explain when the matter in dispute is the sanity of the patient, but thought that the term did not cover mental instability:
the sanity of the patient cannot be said necessarily to be in dispute when the question is merely whether he is mentally unstable. Mental instability, as I understand the term, is consistent with complete sanity at a particular time. A controverted allegation of neurosis, as I understand that term, does not necessarily involve a dispute as to sanity, for it may involve, as I understand it, a disorder of the psychic or mental constitution of a degree not sufficient to be regarded as producing an abnormal defect of reason.
• Wrongs Act and Workers Compensation Proceedings. The Victorian provisions exclude the privilege in proceedings under the Wrongs Act or Workers Compensation Act to recover damages for the death of a person. It is limited to the situation where any physician or surgeon is called as a witness. It does not apply to pre-trial discovery.[39] The operation of the section in ‘Wrongs Act’ proceedings in Tasmania and the Northern Territory will depend upon the resolution of differing Victorian authorities on the question of who may ‘consent’ under the legislation.[40]
• Material Protected. The material protected differs—‘information’ on the one hand (Victoria) and ‘communication by the patient’ (Northern Territory and Tasmania) on the other. The Victorian provision was initially[41] limited in practice to statements made by patients. For many years, however, it has been interpreted to cover ‘knowledge, howsoever acquired, whether from medical examination or from statements by the patient’, the view being that the privilege would be illusory if confined to his statements.[42] Obiter dicta[43] indicate that ‘information acquired’ includes that acquired from persons other than the patient. In Hare v Riley and AMP Society[44] it was held that the provision applied to information acquired by a doctor through correspondence with other doctors but only if it was necessary to enable him to prescribe or act for the patient and the court indicated that similar information from para-medical personnel is also protected. Views have differed, however, on what constitutes prescribing or acting for a patient. Surgical operations have caused difficulty. In National Mutual Life Association of Australasia Ltd v Godrich[45] the Victorian legislation was considered. Justice Isaacs[46] said that ‘prescribe’ probably refers to physicians’ treatment and ‘act’ refers to surgeons’ treatment, but ‘prescribe or act’ is used in the widest sense to denote anything done professionally by the doctor for the cure and relief of his patient, including an operation which is the final step in the treatment. Chief Justice Griffith expressed narrower views.[47] ‘[N]ecessary to prescribe or act for the patient’ prevents the privilege from extending to ‘the physical fact of the prescription for operation’, so that a physician may say what medical treatment he prescribes, a surgeon may say he amputated a limb, an accoucheur may say that a child was born, what sex it was, whether both alive or dead and what was the probable period of gestation, as not being information necessary to enable him to prescribe or act. He thought that any information acquired by the doctor in Godrich’s case, by observation of parts of the body removed was not protected unless they were removed for the purpose of further treatment. He thought ‘necessary’ should be construed to include any information which is or is likely to be, relevant in determining the proper treatment of the patient, such as, for instance, his personal, and in some cases, but not all, his family, history ... whether the information given is actually followed by any treatment or not’.
Justice Barton held[48] that the protection of the section does not cease upon the operation being undertaken, but extends to all information acquired during the treatment of the patient, that is until the professional attendance on the case is at an end, provided that the information is material to proper treatment. The protection extends to a discovery made in the course of treatment which is a fact necessary to enable a surgeon to prescribe or act. Otherwise, he thought the protection would be rendered illusory. Justice O’Connor, however, said:[49]
Prima facie nothing which the doctor himself observes during the operation is privileged from disclosure, the protection of the section extending only to the information necessary to enable the operation to be carried out. While it is being carried out the medical attendant is prima facie in the same position as any bystander of sufficient expert knowledge to understand and explain what he has seen. But that is true only where the operation in itself finally accomplishes the end at which the medical man is aiming. An operation, however, is sometimes undertaken not with any hope of finally accomplishing the healing of the patient, but to obtain further knowledge. It may be an exploratory operation whose very purpose is to acquire information on which future treatment may be based. Everything observed by the doctor during such an operation which could afford him information necessary for the treatment of his patient would be protected from disclosure. Again, there may be cases in which the doctor determines that an operation is necessary, but cannot decide what particular action to take with respect to the part to be dealt with until he sees its actual condition. Under such circumstances the information which he acquires, in so far as it affects the part of the body which he is treating, must be taken to be necessary for further action and so privileged from disclosure.
In X v Y (No 1) Justice Sholl suggested other limits.[50] ‘Information’ referred to communications from the patient and the results of examination by observation such as were confidential and not. patent to the world.
He said[51] the section should not be construed as permitting disclosure of a doctor’s opinion, as distinct from the information on which it is based, because a statement of opinion, by inference would give the substance of the factual information on which it was based and ‘information’ probably includes an opinion based on communications and observations.
In Tasmania and the Northern Territory, the above issues should not arise because the privilege relates to ‘communications’. The appropriate interpretation of ‘communication’ would appear to be the key issue.
• Relationship. The Victorian provision requires that the doctor was ‘attending the patient’ when he acquired the information. The Tasmanian and Northern Territory provision requires only that he was acting in his professional character. This difference is diminished, however, by the Tasmanian and Northern Territory, requirement that the material was necessary to enable the doctor to ‘prescribe or act for the patient’.[52] The Victorian provision has been considered by the courts. In X v Y (No 1), Justice Sholl[53] followed Justice O’Connor in Godrich’s case, but thought that ‘there may be some situations in which the examination conducted by the medical man is so clearly in invitum that there cannot be said to have originated the relationship of physician and patient which the section contemplates’.[54]
• In Godrich’s case Chief Justice Griffith[55] considered that the phrase ‘attending the patient’ connotes ‘a period co-extensive with the continuance of the relation of personal confidence which may be assumed to exist between the physician and the patient’ and that a person is not constituted a patient within the meaning of the section just because a physician or surgeon prescribes or operates on him. He said that the existence or continuation of the relation of personal confidence is in every case a question of fact. He decided[56] that information acquired by observation by a surgeon operating at a hospital was not acquired ‘in attending the patient’. Justice O’Connor, however, said:[57]
To constitute the position of doctor-patient which the legislature had in view it is not necessary, in my opinion, that any confidential or contractual relation should be expressly created between them. The mere fact of a doctor attending a person needing a doctor’s care will in most cases be sufficient evidence of the relation of doctor and patient.
It is arguable that the other legislation not requiring ‘attendance’ should be interpreted as not requiring a relation of personal confidence.
• Who May Consent. In 1966 the Victorian legislation was amended following two cases in 1963 and 1964 where attention was drawn to the problem of who may consent to the giving of evidence arising where action was taken by a relative under s 18 of the Wrongs Act 1958. These arguments are available under the Northern Territory and Tasmanian legislation:–
― Proprietary Right—Representative May Consent. In Pacyna v Grima,[58] Justice Sholl said that the patient’s right to consent or not consent is a right of a proprietary kind, so that a personal representative or committee or guardian ad litem or next friend can give it or withhold it. He distinguished[59] and did not decide the position in a case where an action is brought under the Victorian Wrongs Act 1958, s 18 by relatives of the deceased patient in the absence of personal representatives.
― Not Proprietary Right—Representative May Not Consent. The decision of Justice Sholl was criticised in Andasteel Constructions Pty Ltd v Taylor[60] by Justice Gillard. He decided[61] that consent cannot be given after the patient’s death because
(a) the privilege is subject to the personal consent of the patient,
(b) the privilege can be exercised only in court and is not analogous to a proprietary right, and, there being no words of limitation or description after ‘patient’, the patient’s confidences were not meant to be broken without his express or implied consent, and
(c) the legislature specifically excepted from the need for the patient’s consent only proceedings where the sanity or testamentary capacity of the patient was in issue and no ambiguity requires the implication of any other exception.
Justice Gillard held[62] that the executrix of the will of the deceased patient, not being a party, could not waive the privilege. He said,[63] however, that, although his reasoning might be thought inconsistent with that of Justice Sholl, he did not intend to affect cases where the personal representative is a party to the litigation.[64]
These differences and uncertainties still exist in the Northern Territory and Tasmanian legislation.[65] Another issue that arises is whether the representative of a party, for example, a party of unsound mind, may waive the privilege on legal advice. There is Victorian authority that he can.[66] Research has not revealed reported cases in the other jurisdictions.[67] The amendment, while specially referring to Part III of the Wrongs Act (which includes actions by relations), left some gaps. It did not deal with the problem of the consent requirement as interpreted in the cases: a relative, as such, could not consent. It leaves no one able to consent for the purpose of a doctor’s answering interrogatories or making discovery, where a relative, not being the personal representative, brings the action.[68]
202. The Common Law. The common law applies in most jurisdictions. It is generally accepted[69] that the better view of the common law cases is that no privilege is recognized as arising out of the priest-penitent (or minister-parishioner) relationship.[70] Thus in Wheeler v Le Marchant,[71] Lord Jessel, the Master of the Rolls, said (as obiter dicta):
There are many communications which, though absolutely necessary because without them the ordinary business of life cannot be carried on, still are not privileged ... Communications made to a priest in the confessional on matters perhaps considered by the penitent to be more important even than his life or his fortune, are not protected.
The law in Ireland acknowledges such a privilege.[72] It is formulated using Wigmore’s four conditions and is not limited to sacramental confessions.[73] In Australia, however, the common law is clear—there is no privilege.[74] As with doctor-patient communications, there is scope for judges to discourage attempts to force disclosure.[75]
203. Legislation. In Victoria, Tasmania and the Northern Territory a statutory privilege was created arising out of the priest-penitent relationship but restricted to the contents of a ‘confession’. The legislation[76] is similar in that it provides (using the Victorian provision for comparison):
No clergyman of any church or religious denomination shall without the consent of the person making the confession divulge in any suit action or proceeding whether civil or criminal any confession made to him in his professional character.[77]
However, neither the Northern Territory nor the Tasmanian legislation contain the rider appearing in the Victorian legislation that the confession be made according to the usage of the church or religious denomination to which the person making the confession belongs. The Victorian legislation, on the other hand, does not, like the other legislation, except ‘communications made for any criminal purpose’.
204. Interpretation of Legislation. The Tasmanian provision was considered in R v Lynch[78] where Justice Crisp decided that an informal confession made to a clergyman is not made to him in his professional character where it is made for purposes other than spiritual ones. He held that asking a clergyman to intercede for the purpose of obtaining consent for a marriage was not an act ‘unequivocally referable to his priestly character’ and admitted the Crown’s evidence from the clergyman of the accused’s statements amounting to a confession of having had intercourse with the girl he wished to marry. Considering the word ‘confession’ in the statute, Justice Crisp stated:
... I think the statute has used the word ‘confession’ as that term was used at common law in this connection.[79] At common law I have no doubt it was confined to a ritual confession made according to the discipline of the particular faith in so far as a privilege existed at all. I do not wish to be taken as deciding that nothing other than a ritual confession is covered by the section. It may be that in our statute we have gone further. It may be that it extends to confessions for spiritual ends which do not conform to the requirements of a liturgy. But here the confession was not made for any spiritual purpose.[80]
Justice Crisp left open the question whether the Tasmanian legislation extends to a confession for spiritual ends which does not conform to the requirements of a liturgy. Under the Victorian legislation, the answer may depend on the construction of the rider that the confession be made ‘according to the usage of the church or religious denomination to which he belongs’.
205. An Ancient Privilege. The traditional formulation of the ‘informer privilege’ is that enunciated by Chief Baron Pollock in the case of Attorney-General v Brunt:[81]
The rule clearly established and acted on is this, that in a public prosecution a witness cannot be asked such questions as will disclose the informer, if he be a third person ... and we think the principle of the rule applies to the case where a witness is asked if he himself is the informer.
The rule however, is, totally inflexible. As Lord Chief Justice Eyre put it, the rule is that those persons who are the channel by means of which detection of an offence is made, should not be unnecessarily disclosed.[82] So, if upon the trial of a prisoner the judge is of the opinion that the disclosure of the name of the informant is necessary or ‘right’ in order to show the prisoner’s innocence,
then one public policy is in conflict with another public policy, and that which says that an innocent man is not to be condemned when his innocence can be proved is the policy that must prevail.[83]
The rule, therefore, is one of public policy in the broadest sense and involves the weighing up of competing policy interests. It may in this way be regarded as one of the earliest forms of public interest privilege.
206. The exact formulation of the rule is not always consistent. One of the difficulties is the determination of who is the possessor of the privilege.[84] The weight of authority, however, is that the ‘privilege’, if so it can be termed, resides within the discretion of the court. The precise formulation of the content of the informant privilege has been little litigated[85] but it is clear that the privilege applies only to the identity of the informer, and not to the content of his communications. Presumably, if disclosure of the substance of the informer’s statement would tend to disclose his identity, the communication itself could probably be adjudged within the privilege. This would probably be limited to the extent necessary to preserve the informer’s anonymity.[86]
207. Common Law Jurisdictions. In Australia the common law relating to the privilege against self-incrimination applies in South Australia where there is no express statutory provision. The common law position is restated in the Evidence Acts of New South Wales s 9, the Northern Territory s 10 and Queensland s 10. Elsewhere it is modified.
208. Common Law. The privilege against self-incrimination in so far as it pertains to witnesses other than the accused was stated by Lord Goddard in Blunt v Park Lane Hotel Ltd[87] to be a rule that:
no one is bound to answer any question if the answer thereto would, in the opinion of the judge, have a tendency to expose the deponent to any criminal charge, penalty[88] or forfeiture[89] which the judge regards as reasonably likely to be preferred or sued for.[90]
It applies both to the answering of questions or interrogatories[91] and to the production of documents.[92] The privilege traditionally applies to a witness whose admissions might expose him to ‘ecclesiastical censure’[93] or reveal that the witness had committed adultery.[94] Some doubt exists as to the existence of the privilege where the witness claims risk of ‘ecclesiastical censure’.[95] Justice Murphy in Pyneboard Pty Ltd v TPC[96] was firm in his view:
Any rationale for this privilege in England where there is an established Church does not apply to Australian circumstances. In Australia ecclesiastical censure is irrelevant to judicial procedures as well as to non-judicial procedures from obtaining information for public purposes. The privilege should not be recognised as any part of the common law in Australia.
As to a claim based upon the risk of revealing adultery, there must be doubt as to the existence of the right in Australia. In England the Court of Appeal was very critical of the ground.[97] In an action for slander based on an allegation that the plaintiff had been guilty of adultery, the court held that formal ecclesiastical censure of laymen for adultery was anachronistic and described the plaintiff’s plea that her answers might expose her to the risk of not being allowed to partake of the sacrament as ‘fanciful’.[98] The privilege is available to witnesses asked to give testimony that would reveal their liability to a ‘civil penalty’[99] but not if the claim is made on the ground that answers will expose the witnesses to another kind of civil liability or a debt either at the instance of the Crown or of any other person.[100]
209. It has been held that a witness cannot object to giving an answer that would expose him to the risk of bankruptcy proceedings. In re X Y; Ex parte Haes[101] the Court of Appeal held that on the hearing of a bankruptcy petition the petitioning creditor was entitled to production of the debtor’s books for the purpose of proving the allegations in the petition. As to the accused, the Australian States have enacted more or less identical counterparts of a provision to the effect that an accused person who elects to give evidence may be asked a question in cross-examination notwithstanding that it would tend to incriminate him as to the offence charged.[102]
210. The court has a duty to make sure, so far as may be, that the protection of the rule is not accorded to those who have no bona fide claim to it. The court will insist upon an answer if
The witness is trifling with the authority of the court, and availing himself of the rule of law to keep back the truth, having in reality no ground whatever for claiming the privilege.[103]
The court may insist upon an answer whenever it is not made clear to the court ‘that there is reasonable ground to apprehend danger to the witness from his being compelled to answer’.[104] The rule extends beyond answers that would directly criminate the witness to those which might be used as a step towards obtaining evidence against him.[105] If the witness could have claimed the privilege but failed to do so, the evidence will nevertheless be admissible in the instant and later proceedings.[106]
211. Need for Warning by Judge. It is unclear whether the trial judge has an obligation to advise the witness of his fights.[107] It was held in R v Coote[108] that the judge is not required to give a warning to the witness. Wigmore’s comment on the point is as follows:
Should the judge, or other presiding official, warn the witness when an incriminating fact is inquired about, that he has by law an option to refuse to answer? At one time, such a course was often insisted upon by the leaders at the Bar; and it is plain that the old practice was to give such a warning when it appeared to be needed. But, as general knowledge spread among the masses and the preparation for testimony became more thorough, this practice seems to have disappeared in England, so far at least as any general rule was concerned.[109]
However, in R v Gray,[110] Justice Skerman said by way of a dictum that he would be inclined in voir dire proceedings to advise the accused to claim privilege if he was asked about the actual offence or his guilt or otherwise, as distinct from the issue or issues raised on the voir dire. This was followed by Justice Wanstall in R v Toner:[111]
The law on this matter is in a state of uncertainty but, it being my view that privilege from self incrimination is a deeply ingrained constitutional right, I should not interpret section 618A of the Criminal Code in a way, or apply any other view of the law, which would whittle away that constitutional right. Therefore I propose to follow the suggestion made by Skerman J in R v Gray and by Townley J in earlier cases and advise the accused that he is not bound in these proceedings to answer any question which may tend to incriminate him.
212. Incrimination of Spouse. There is uncertainty about whether the privilege extends to answers tending to incriminate the witness’ spouse.[112] There is no authority to suggest that the privilege can be invoked to protect members of the witness’ family other than the spouse.[113]
213. Availability of Privilege to Corporations. The privilege against self-incrimination is traditionally one which is concerned to protect the individual and, as corporations are not generally the object of criminal sanctions, has often been said to be inappropriate for their context. Because of the impossibility of a corporation as such ‘testifying,[114] claims of privilege are likely only to arise in the pre-trial context. In that context, the English Court of Appeal has held that the privilege is available to corporations.[115] In the United States the opposite approach has been taken—corporations cannot claim the privilege. In Campbell Painting Corp v Reid[116] Justice Fortas said:[117]
It has long been settled in federal jurisprudence that the constitutional privilege against self-incrimination is ‘essentially a personal one, applying only to natural individuals’.
214. In Australia the question has not yet received decisive judicial attention but has been commented on by the High Court.[118] Justice Murphy has twice stated that the history and reasons for the privilege did not justify its extension to artificial persons such as corporations or political entities.[119] He held that an official of a corporation or organisation cannot claim the privilege on its behalf[120] but acknowledged the different view adopted in England[121] only to reject it. Justice Mason has referred to the issue but expressed no conclusion.[122]
215. Incrimination under Foreign Law. Controversy exists as to whether a witness can avail himself of the privilege against self-incrimination where the threatened danger is constituted by proceedings in the courts of another jurisdiction. In 1749 the Court of Exchequer unanimously held that the privilege against self-incrimination protected a witness in an English court from being compelled to give testimony which could be used to convict him in the courts of another jurisdiction.[123] However, in 1851 in King of the Two Sicilies v Willcox[124] the Vice-Chancellor, Lord Cranworth made an order for production of documents, taking a contrary view.
216. That decision was distinguished in United States of America v McRae[125] where the United States sued in an English court for an account in payment of monies allegedly received by the defendant as agent for the Confederate States during the Civil War. The defendant refused to answer questions on the ground that to do so would subject him to penalties under the laws of the United States. The Lord Chancellor, Lord Chelmsford, said:
Upon the particular circumstances of the case of King of The Two Sicilies v Willcox I have no doubt that it was most correctly decided. But in giving judgment Lord Cranworth went beyond the particular case, and expressed his opinion that the rule upon which the Defendants relied to protect them from answering was one which existed merely by virtue of our own municipal law, and which must have reference exclusively to matters penal by that law. It was unnecessary to lay down so broad a proposition to support the judgment which he pronounced, and he certainly could not have contemplated a case where the presumed ignorance of the Judge as to foreign law is completely removed by the admitted statements upon the pleadings, in which the nature of the penalty or forfeiture incurred by the party objecting to answer is precisely stated ... The plea in this case sets out the Act of Congress under which the forfeiture is said to have been incurred. That being admitted, it is the same as if it were proved as a fact in the case ...[126]
Where the domestic court is receiving evidence for use in proceedings abroad, the law is far from settled.[127] In Rio Tinto Zinc Corporation v Westinghouse Electric Corporation[128] a claim of privilege against self-incrimination under s 14(1) of the Civil Evidence Act 1968 (UK) was recognised in respect of documents required to be produced in an examination in England pursuant to letters rogatory issued out of a court in Virginia. The claim was upheld since production would tend to expose the corporation to a ‘penalty’, namely a fine under an EEC Council Regulation This, however, by virtue of art 18g of the EEC Treaty, formed part of the law of England s 14(1).[129] Further, under s 3 of the United Kingdom Evidence (Proceedings in other Jurisdictions) Act 1975[130] a witness who gives evidence within England for use abroad is entitled to claim any privilege which may be available to him under English law or under the law of the place where the evidence will be used in civil proceedings. This made relevant the Fifth Amendment to the United States Constitution. In this respect the case can be confined within quite strict limits as it depends wholly upon legislation which is not uniform and also concerns letters rogatory.[131]
217. Clear authority is, therefore, lacking to indicate the approach which the courts will take in Australia when a witness seeks immunity from testifying on the ground that what he says might incriminate him in respect of criminal proceedings overseas.[132]
218. Statutory Modification of the Privilege. In Victoria, the common law privilege has been limited by s 29 of the Evidence Act 1958 to apply where
the court or person having by law or by consent of parties authority to hear receive and examine evidence is of opinion that the answer will tend to subject such witness to punishment for treason or an indictable offence.[133]
There are statutory provisions in two other jurisdictions in modifying the rule as it relates to forfeiture. Section 14(1)(a) of the Queensland Evidence Act 1977 and section 95(1) of the ACT Evidence Ordinance 1971 provide that the rule as it relates to ‘forfeiture’ applies only in criminal proceedings. A major statutory modification exists in the ACT, Tasmania and Western Australia. There a procedure has been enacted which can be used to compel a witness to give evidence notwithstanding that a claim of privilege has been properly made. Alternative protection has been given. The Evidence Ordinance 1971 (ACT), for example, restates the common law but goes on to provide:
57 (2) Where, in a proceeding, a person called as a witness or required to answer an interrogatory declines to answer a question or interrogatory under the last preceding sub-section, the court may, if it is satisfied that, in the interests of justice, the person should be compelled to answer the question or interrogatory, inform the person—(a) that, if he answers the question or interrogatory and all other questions or interrogatories that may be put to him, the court will give him a certificate under this section; and
(b) of the effect of such a certificate.
(3) Where, in relation to a proceeding, a person has been informed by the court of the matters referred to in paragraphs (a) and (b) of the last preceding sub-section, that person is not thereafter entitled to refuse to answer a question or interrogatory put to him in that proceeding.
(4) Where, after being informed by the court of the matters referred to in paragraphs (a) and (b) of sub-section (2) of this section, a person answers all questions and interrogatories put to him in the proceeding, the court shall give to the person a certificate that his evidence in the proceeding was given under this section.
(5) Where a person is given a certificate under this section, a statement made by the person in answer to a question or interrogatory put to him in the proceeding in which that certificate was given to him is not admissible in evidence against the person in criminal proceedings other than proceedings for an offence arising out of falsity of the statement.
219. The Western Australian[134] and Tasmanian[135] provisions are similar to section 57 of the ACT Ordinance. However, in Western Australian and Tasmania they are more generous to witnesses in that they operate as a complete bar to later prosecution. Uncertainty exists as to the extra-territorial operation of these provisions.[136]
220. Under all of the certification procedures the court has a discretion on the invocation by the witness of the privilege to compel the witness to answer and grant a certificate if he adjudges such compulsion ‘in the interests of justice’. As is not surprising, the courts’ approaches to the exercise of the discretion have been varied. The legislation in the ACT is limited in its operation to the situation where a witness is exposed to the risk of proceedings under Australian law. The legislation of Western Australia and Tasmania is silent on the issue.[137]
221. Uncertainty of Operation of Certification procedures. For example, the effect of s 57 of the Evidence Ordinance 1971 of the ACT is that a statement covered by the certificate is not admissible in evidence ‘against the person in criminal proceedings’. The question must arise as to whether the section has extra-territorial operation. Of course, the section should be read as applying to criminal proceedings within the ACT. To this extent it is certainly valid. However, questions arise where it is sought to say that ‘criminal proceedings’ might refer to those outside the ACT. An important question is whether and to what extent it could prevail over a law of a State. This depends in part upon whether the term ‘law of the Commonwealth’ in s 109 of the Constitution includes a law of a Territory or not.
• A ‘Law of the Commonwealth’. Chief Justice Griffith has held that in this respect ‘law of a Territory can [not] be put on any different footing from that of a law of a State’.[138] However it has been held that s 10 of the Northern Territory (Administration) Act passed under s 122 of the Constitution was ‘a law of the Commonwealth’ within s 109, even though such a law was not a law of the Commonwealth for the purpose of s 80 of the Constitution.[139] If the law could be classed as ‘the law of the Commonwealth’ it would clearly have operation throughout Australia. However, in the more likely event of its being classed as on the same footing as a law of a State, other factors come into consideration.
• Not a ‘Law of the Commonwealth’. On the assumption that the ACT Ordinance should be regarded as on the same footing as a law of a State, the question of extra-territoriality arises. The initial position is that as there are no clear words denoting extra-territorial intention, its provisions should be confined intra-territorially. This presumption is affected if it can be said that the provision, when read intra-territorially, is denuded of a significant proportion of its efficacy. This is strongly arguable in the case of an ACT Ordinance. Then a question of conflict of laws arises. The effect which the ACT Ordinance attempts to have is one which regulates the admissibility of statements against interest made during ACT proceedings. The matter is one of procedure. By conflict of laws rules, if there is a conflict between laws of procedure the law of the forum applies. Thus, it might well be that the ACT indemnity would not be given effect to by jurisdictions outside the ACT.
222. Uncertainty exists as to the role which the full faith and credit provisions of the Constitution,[140] together with s 18 of the State and Territorial Laws and Records Recognition Act 1901,[141] would play. In this context Professor Lane[142] has commented:
[A]ssume that the sister-State, say, New South Wales (the laws of which are to be recognised in Victoria because of section 118) clearly intends that its laws should apply extra-territorially. Then, it seems to me that the court in the forum State, Victoria, would apply this New South Wales law with its extra-territorial operation because of section 118 of the Constitution. Or, consider New South Wales as the forum State and the Australian Capital Territory as the sister—‘State’ (the laws of which are to be recognised in New South Wales because of section 18 of the State and Territorial Laws and Records Recognition Act). If an Australian Capital Territory law clearly intended an extra-territorial operation, as it may, then again it seems to me that the court in the forum State, New South Wales, would apply the Australian Capital Territory law.
Certainly, the case of Merwin Pastoral Co Ltd v Moolpa Pastoral Co Ltd[143] lends support to this interpretation. In that case a mortgage agreement had been made in Victoria relating to land situated in New South Wales. In proceedings in Victoria to enforce the contract, a New South Wales Act which made agreements of this nature unenforceable was pleaded by the defendant company as preventing such enforcement. Although the plaintiff company argued that the enforcement of the New South Wales statute would be contrary to Victorian public policy, the Act was held to affect validly the contractual relations of the parties. Views were expressed that s 118 of the Constitution did not allow one state to refuse recognition to the statutes of a sister-State on the ground of public policy.[144]
223. However, recent cases of the High Court tend to support the proposition that s 118 may not be given so wide an operation in future. In Anderson v Eric Anderson Radio and TV Pty Ltd[145] the plaintiff was injured by the negligence of the defendant’s servant in the ACT. Being a resident of New South Wales he brought an action in the New South Wales Supreme Court for damages. Under New South Wales law contributory negligence was a complete defence, but apportionment provisions existed in the ACT. It was argued by the plaintiff that s 18 of the State and Territorial Laws and Records Recognition Act, together with s 118 of the Constitution, compelled the New South Wales Court to give effect to the ACT Ordinance as being the law applicable as the lex loci delicti (the law of the place of the tort or wrong). It was held that the Ordinance could not be relied upon as it only applied to actions tried in the ACT and neither s 18 nor s 118 of the Constitution operated to extend the territorial ambit of the Ordinance.[146]
224. The High Court has shown a tendency to endeavour to circumvent the problem where possible by holding, when the law of a State or Territory does not have manifestly extra-territorial intentions, that its operation is infra-territorial. This has quite properly avoided putting s 18 and s 118 to the test. Authority on the point is uncertain.[147]
225. It is, thus, by no means clear whether, if they had to be invoked, a broad or narrow interpretation would be given to the full faith and credit provisions in so far as they apply to legislation relating to self-incrimination. The most likely interpretation of the provisions, though, is that all would be confined to intra-territorial operation. This is in spite of the very limited protection accorded by such construction:
• ACT Ordinance. With respect to s 57 of the Evidence Ordinance 1971 of the ACT the effect of the certificate is to render the statement by the witness not admissible in criminal proceedings.[148] In this respect there is a distinct and identifiable nexus between the making of the statement and the proscription. It is simply the admissibility of that statement which is affected by the legislation. If it is a ‘law of the Commonwealth’, it will prevail. On the assumption, however, that the law of the ACT would be regarded as similar to a law of a State it is likely that the provision would be confined within intra-territorial limits. However, if it were considered that it had implied extra-territorial intent, it would once again probably be confined intra-territorially by reason of conflict of law rules. It is probable that the full faith and credit provisions would not- be material considerations.
• Tasmania and Western Australia. The intended effect of the sections in these two States is very different to that proposed by the ACT legislation. It is not that the statement becomes inadmissible but rather that prosecution in respect of criminal and penal actions and for penalties, forfeitures and punishments for any matter in respect of which the witness had acquired liability can no longer be brought.[149] The nexus between the statement made by the witness and the consequences of the certificate is not a close one. It is probable that the same situation would obtain with the Tasmanian and Western Australian legislation as with the ACT provision. That is to say, it would be confined intra-territorially by reason of lack of explicit intent to apply beyond its own confines and, if it were held to have extra-territorial intent, conflict of laws rules would once again probably confine it to intra-territorial operation. Were s 118 of the Constitution to be relevant, it would probably be held that the nexus between the statement of the witness and the consequences of the certificate is not sufficiently close.
In fact, it may be said that, were such a provision to be given extra-territorial effect by means of s 118 of the Constitution, it would allow Tasmania and Western Australia to interfere drastically with proceedings that could be brought in other States and Territories. So broad a reading of s 118 is highly unlikely. It is much more probable that the sections would be confined to operation within the States in question by being given an intra-territorial interpretation.
226. Miscellaneous Provisions. A number of diverse statutory provisions exclude or partially exclude the privilege in the court setting:[150]
• Tasmania and Western Australia. Under s 88 and s 12 of their respective Evidence Acts:
A person required to be examined in any proceeding for the breach of any Act relating to—
(a) stamp duties;
(b) public revenues;
(c) sale of intoxicating liquors
shall not be excused from answering any question touching any such breach on the ground that his evidence will tend to incriminate him.
• Bankruptcy Act. Under section 69(12) of the Bankruptcy Act 1966:
The bankrupt shall answer all questions that the Court, the Registrar or Magistrate puts or allows to be put to him, and unless the Court, the Registrar or the magistrate as the case may be, otherwise directs, is not excused from answering any such question by reason only of the fact that the answer to it may incriminate him. Notably, though, this section only applies to the bankrupt and not to other witnesses.
• Queensland. Under s 442K of the Criminal Code a person shall not be excused from answering questions which might incriminate him but the answer shall not be admissible in evidence in any proceeding against the person. (for offences against that Chapter of the Act which deals with secret commissions).
• New South Wales. Under s 246 of the Crown Lands Consolidation Act 1913, a witness may be compelled to answer a question that may expose him to forfeiture or penalty under the Crown Lands Acts but such answers shall not be admissible against the witness in any criminal proceedings.
227. Section 155 Trade Practices Act 1974. The construction of s 155 of the Trade Practices Act has also caused problems. These have been occasioned by the express reference in s 155(7) to the abrogation of the privilege against self-incrimination and the absence of any reference to the privilege against exposure to the imposition of a federal penalty.[151]
228. In Melbourne Home of Ford Pty Ltd v TPC[152] the members of the Full Court of the Federal Court expressed two different reasons for concluding that the privilege was not available. Justice Smithers thought that in the language of the law the expression ‘the privilege against self-incrimination’ comprehends the privilege of witnesses from answering questions where such answers may tend to expose the witnesses to risk of conviction for a crime or to a penalty or to a forfeiture.[153] He also thought that s 155(7) effectively abolished, in relation to the furnishing of information and the production of documents in response to a notice under s 1550), the privilege of refusing to answer questions the answers to which may expose the person to conviction for a crime or the imposition of a pecuniary penalty. On the other hand, Justices Franki and Northrop noted that the privilege appeared to have been limited to giving answers on oath in judicial proceedings, or in procedures relating to such proceedings as, for example, discovery.[154] However, their Honours held in any event that, because s 155(5) was specific in providing that a person shall not refuse or fail to comply with a notice under s 1550) and because it provided for an offence of knowingly furnishing information or of giving evidence that is false or misleading, the sub-section clearly abrogated any privilege against the exposure to the imposition of a pecuniary penalty that would or might otherwise have existed.[155] In Pyneboard Pty Ltd v TPC; Dunlop Olympic Ltd v TPC[156] the High Court once more drew a distinction between discovery in a mere action for a penalty and discovery in an action which was not for a penalty as a result of which might be used to establish a party’s liability to a penalty in other proceedings.[157] It held that in the first situation, the court should, in the absence of statutory provision to the contrary, refuse to make any order for discovery, production of documents or the provision of information for the reason that an intended consequence of the discovery, production of documents or provision of information is the imposition of the penalty, this being the object of the action. The court held that the construction of s 155 should be approached on the footing that:
The privilege of refusing to answer questions or provide information on the ground that the answers or the information might tend to expose the party to the imposition of a civil penalty is—(a) not confined in its application to discovery and interrogatories;
(b) available at common law as well as in equity;
(c) distinct from, though often associated in discussion with, the privilege against exposure to conviction for a crime.
The majority of the High Court held that sub-s (1) confers a power on the Commission to require the provision of information, the production of documents or the giving of evidence relating to contravention, or possible contravention, of the Act. Therefore, it is significant that sub-s (5) makes it an offence for a person to refuse or fail to comply with a notice under sub-s (1) ‘to the extent that the person is capable of complying with it’. These words in themselves are inconsistent with the existence of a privilege entitling the recipient of a notice to refuse to comply, whether on the ground that compliance might involve self-incrimination or otherwise. It was also pointed out that:
The purpose of conferring the power and imposing the obligation is to enable the Commission to ascertain whether any contravention of the Act has taken place, or is taking place, and to make the information furnished, the documents produced and the evidence given admissible in proceedings in respect for contravention of the Act, a purpose which would be defeated if privilege were available.[158]
Thus, the presence of sub-s (7) presents no problems. Its object is to limit the use to which the material obtained can be put in criminal proceedings except as provided in para (a) and (b). Thus the first part of sub-s (7) is redundant.[159]
229. Conclusion. The law, therefore, is at great variance throughout the different states and territories within Australia. There are at least five different approaches within the Commonwealth of Australia which federal courts have to apply when sitting in the appropriate jurisdiction. The common law in terms or in substance applies in four jurisdictions. In Victoria it is limited to answers tending to expose the witness to punishment for criminal offences. In three jurisdictions the witness is compelled to answer on being given the protection of a certificate. In the ACT, the privilege extends to answers incriminating the spouse of the witness. It does not in Victoria and it is unclear whether it does elsewhere. The situation could arise where:
• a federal court issues a certificate while sitting in Tasmania or Western Australia purporting to act as a bar to proceedings relating to the information contained in the statement certified by the court but is unable to give effect to its certificate when sitting in, for example, New South Wales;
• a federal court applying the law of Tasmania or Western Australia could issue a certificate guaranteeing, in effect, immunity from prosecution. The witness might, in answer to questioning, show himself guilty of a criminal offence in, for example, South Australia. The South Australian court would in all probability not recognise the effect of the certificate within its own jurisdiction and the words of the witness could be used against him as a declaration against interest.
It may be critical for the plaintiff in some litigation—for example, Trade Practices litigation—to select a forum where the certification procedure is available. The success of a case could depend on that selection. In the Family Court, the difficult situation arises on occasions where it is sought to obtain or enforce restraining or similar orders against a spouse. Spouses, by way of defence, may have to give evidence which could be used against them in subsequent criminal proceedings. In those jurisdictions where certificates can be given the problem can be dealt with by issuing a certificate. In those where they cannot, the Court must do what it can to ameliorate the situation—for example, by adjourning the Family Court proceedings to enable the criminal proceedings to go ahead.[160]
230. Common Law. The law protects from disclosure a variety of materials relating to litigation and to the relationship between lawyer and client. This protection operates to varying degrees both in pre-trial discovery and in the questioning of witnesses during the trial.[161] The discussion in this chapter is concerned with the trial phase and will relate to the privilege that attaches to documents relating solely to the party’s own case and the other privilege which may exclude evidence—that relating to communications between lawyers, clients and third persons and to the notes and working materials of the lawyer which has been traditionally described as ‘legal professional privilege’.[162] The issues of the availability of the privilege in answer to a search warrant and its application in quasi-judicial proceedings are outside the scope of the reference.[163]
231. Party’s Own Documents. The common law has protected a party’s documents which relate solely to that party’s case and do not support the case of the other party. Edwards[164] states as follows: A party to civil proceedings can also claim privilege for documents relating solely to his own case and not tending to support the case of the other side.[165] While there is little authority on the topic, it is suggested that the privilege can be relied upon by a party during a trial.[166] Williams argues that the legal professional privilege protecting communications in anticipation of litigation largely replaced the privilege protecting documents that relate solely to the case of the party making discovery.[167] It is, however, arguably the only ground on which the unrepresented litigant can object to production of documents.[168] While Phipson suggests that the privilege is also available in criminal trials[169] research has not identified any reports of criminal trials where the privilege has been claimed.
232. ‘Legal Professional’ Privilege. It is difficult to state with certainty the content of the common law. This results from uncertainty about the effect of the leading Australian case of Grant v Downs.[170] It is necessary to examine:
• the pre-existing law;
• the scope and effect of Grant v Downs; and
• other aspects of legal professional privilege.
233. Before Grant v Downs. At common law there were several recognised categories of material protected by legal professional privilege.[171] The privilege protected:
• the material prepared by the legal adviser;[172]
• communications between the client’s lawyers. Opinions sought from counsel by solicitors were also privileged either because the counsel was the legal adviser for the purpose of the rule or else because he was the alter ego of the solicitor.[173] So too were communications between the legal adviser and his partners and agents.[174]
The categories also included communications involving the client, legal advisers and third persons.
• Communications between the Client or his Agents and the Client’s Professional Legal Advisers.[175] In Greenough v Gaskell[176] it was established that privilege extended beyond advice connected with pending or anticipated litigation to communications between the client or his agent on the one hand and the legal adviser on the other. The protection covered communications with the legal adviser’s subordinates[177] and communications by an agent of the client to the legal adviser.[178]
• Communications between the Client’s Professional Legal Advisers and Third Parties if Made for the Purpose of Pending or Contemplated Litigation.[179] Any communication, passing directly or through an agent, between a solicitor and a non-professional agent or a third patty which came into existence after litigation was contemplated or commenced, and which was made with a view to such litigation, was privileged.[180] The privilege did not embrace communications to the client’s solicitor of factual information obtained by the solicitor from third parties to enable him to give general advice to his client in a matter as to which no litigation is in prospect. It can be claimed only in the litigation in connection with which the communication was made.[181] Prior to Grant v Downs it could be said that–
the privilege attaches to information obtained by a solicitor from a person on behalf of a client and in contemplation of litigation ... A document is privileged from inspection by an opposing party even if it is not prepared solely or even primarily for the purpose of litigation, provided it was a material object of its being prepared that it should be available to the legal adviser of the party for whom it was prepared for use in advising on or conducting actual or prospective litigation.[182]
• Communications between the Client or his Agents and other Persons if made for the Purpose of Obtaining Information to be Submitted to the Client’s Professional Legal Advisers for the Purpose of Obtaining Advice upon Pending or Contemplated Litigation.[183] The Law Reform Committee thought this privilege to be ‘closely analogous’ to that in the second category and that ‘where the client has its own legal department the two privileges tend to merge, since the collection of such information would presumably be undertaken by the legal department itself’.[184] Prior to Grant v Downs, however, it was not clear whether legal professional privilege extended to all documents that were communicated to a legal adviser or only to those which were specifically brought into existence for the purpose of seeking such advice. There had been a difference of opinion in the English authorities. The view which was perhaps most strongly supported was that stated by Lord Justice Buckley in Birmingham and Midland Motor Omnibus Co Ltd v London and North Western Railway[185] and by Lord Justice Scrutton in Ogden v London Electric Rail Co.[186] On this view, the fact that the purpose of submission of information to the legal adviser was only one, and might not be the most important, of several purposes for which the information was prepared, did not prevent it from being privileged. A narrower view had, however, been advanced by Lord Justice Hamilton in the Birmingham case and this had been supported by Justice Diplock in Longthorn v British Transport Commission.[187] On this view, the mere fact that the obtaining of legal advice was a purpose, however insubstantial, for the formulation of a document was not sufficient to found a claim for privilege. It had to be shown that the obtaining of legal advice was at least a substantial reason for bringing the document into existence.[188]
The Court of Appeal of New South Wales in Cataldi v Commissioner for Government Transport[189] had considered the question. In its joint judgment, the Court of Appeal stated:
It is not necessary in order that the privilege should attach that the documents should be brought into existence for one of the purposes mentioned in the sense that it is the sole or predominant purpose; it is enough that the purpose is a purpose of bringing the documents into existence.[190]
In the circumstances of the case, the Court upheld the privilege finding that:
The required particulars of accidents make it clear that compliance with the instructions will bring into existence a comprehensive description of circumstances relevant to the cause of an accident, and to the question of the respondent’s legal rights or liability in relation thereto, together with a record of evidentiary material which may be used in the event of litigation taking place.[191]
234. Grant v Downs. Privilege was claimed for internal reports made to the Under Secretary and the Director, Division of Establishments, of the Department of Public Health[192] relating to the circumstances surrounding the death of the appellant’s husband. The reports could be described as communications passing between servants and agents of the defendant. This material was supplied to the legal advisers. The Master upheld the claim for privilege. On appeal, Justice Rath also upheld the claim but only after the filing of an affidavit by the then Director of State Psychiatric Services who deposed that there were three purposes for the preparation of reports of the type in question:
• to ascertain any breaches of discipline;
• to check if there had been any breach of security arrangements so as to minimise injuries to patients; and
• to have a contemporaneous detailed report, including commentary, to submit to the Crown’s legal advisers to enable them to advise the Department about its legal position and to represent the department at inquests and in any civil action that may ensue.
The NSW Court of Appeal refused an application for leave to appeal from the decision of Justice Rath. On appeal to the High Court it was held that the reports were not privileged.
• Justices Stephen, Mason and Murphy. In the course of their majority judgment their Honours referred to the line of English cases which supported the proposition that documents brought into existence after an accident, pursuant to a standing instruction previously given, may be privileged.[193] This is only the case, their Honours stated, however, if the court finds that litigation could be reasonably anticipated at the time when the document was prepared. Further, more was required to attract the privilege—‘the document must be called into being for advice’. The issue was the extent to which it must be intended to serve this purpose.[194]
The differing English authorities were considered. Their Honours then stated that they had to determine the relevant principles governing:
... communications and materials submitted by a client to his solicitor for the purpose of advice or for the purpose of use in existing or anticipated litigation.[195]
Thus, in stating the issue, they used language which differed from the traditional categories listed above. In addition, they formulated the issue in such a way that their subsequent statement of the law can be said to apply to both the advice and the litigation situation. Their Honours concluded that ‘the privilege should be confined within strict limits’.[196] They held that ... the sole purpose test should now be adopted as the criterion of legal professional privilege’.[197] The purpose for which the materials were created as distinguished from the purpose for which they were received has since been affirmed to be the question.[198]
This test presumably is to apply to communications and other materials[199] submitted by the client both for advice and for use in pending or anticipated litigation. Applying this test the majority held that:
neither the evidence nor the documents themselves sufficiently establish that the purpose of submitting the documents to the respondent’s legal advisers was the sole purpose of their being brought into existence ... the documents have about them a flavour of routine reports such as would be made by any institution or corporation relating to an occurrence of the kind that took place so as to inform itself of the circumstances in which the death of the patient occurred and with a view to disciplinary action and the reform of any procedures that might be found to be defective.[200]
For these reasons, the reports in question were not considered to be privileged and the appeal was allowed. The test has since been explained by Justice Glass as follows:
If the purpose which actuates the party who commissions documents is not single, but multiple, each must be identified. Unless all of them fall within the protected group of purposes, namely submission to legal advisers or use in litigation, no privilege attaches.[201]
Chief Justice Barwick and Justice Jacobs advanced different tests but agreed with the majority that the materials were not privileged.[202]
235. The Effect of Grant v Downs. It has been said that the decision ‘has considerably narrowed the ambit of the doctrine of legal professional privilege.[203] It is suggested, however, that it has also widened the ambit of the privilege[204] and that the effect of the majority judgment is open to debate. A preliminary issue is the question of whether the test in Grant v Downs was intended to be exhaustive. In two single judge decisions, the view has been expressed that the sole purpose test was not intended to be an exhaustive statement of the law on legal professional privilege. In Trade Practices Commission v Sterling it was argued that the categories of legal professional privilege previously relied upon have been replaced by a test that confines the privilege to:
documents which are brought into existence for the sole purpose of their being submitted to legal advisers for advice or use in legal proceedings ... the other categories ... have now gone.
This argument was rejected:
It is clear that the High Court in Grant’s case was considering the relevant principles of law governing privilege attaching to communications and materials submitted by a client to his solicitor for the purpose of advice or for the purpose of use in existing or anticipated litigation and not otherwise. Grant’s case has nothing to say as to the other well-established categories of legal professional privilege.[205]
In Kelly v The Commonwealth[206] it was argued that the sole purpose test applied to letters passing between the client and legal adviser. This argument was also rejected:
... nothing in Grant v Downs related to documents which themselves are confidential communications between solicitor and client for professional purposes; these are privileged without regard to the question whether they were made for the purpose of actual or contemplated litigation.[207]
Recently, however, the view was expressed in Electrona Carbide Industries Pty Ltd v Tasmanian Government Insurance Office[208] that the High Court was attempting to deal exhaustively with the topic of legal professional confidentiality.[209] Justice Cosgrove referred to and rejected the passages quoted above from Grant v Downs, stating that the judgments of Chief Justice Barwick and Justices Stephen, Mason and Murphy lead inexorably to the conclusion that the court intended to lay down principles of universal application.[210]
In two recent cases, the High Court has considered whether legal professional privilege entitled a refusal to produce documents or information in response to search warrants and the like. In neither was it necessary for the court to define the content of the privilege. The statements of the law by Justice Murphy suggest that he sees the Grant v Downs formula as exhaustive.[211] Justice Mason,[212] in the first case—O’Reilly’s case—discussed the application of the test to contracts, agreements, correspondence and extracts of transactions processed through the trust account of the solicitor on the basis that the sole purpose test was the test to be satisfied. While it may be implicit in his statements that the test is exhaustive, it is not expressly stated to be so.[213] In the second case—Baker v Campbell—however, Chief Justice Gibbs after stating that privilege related to communications between lawyer and client and communications with third parties where litigation is in contemplation, added ‘for completeness’ that the privilege is ‘confined to documents ... brought into existence for the sole purpose of their being submitted to legal advisers for advice or for use in legal proceedings’.[214] Justice Dawson clearly does not treat the Grant v Downs statement as exhaustive.[215] The issue remains to be resolved.[216]
236. The Consequences of Grant v Downs. It is suggested that Grant v Downs and the subsequent High Court decisions should be read as laying down principles to be applied to materials of the type in issue in those cases. They should not be regarded as affecting the law on privilege relating to the lawyer’s notes and preparation, legal advice, opinions of counsel or communications between the legal advisers of the patty and the record of same.[217] The issue to be resolved is the consequences that flow from Grant v Downs for the above mentioned three categories of communications. It is suggested that the better view is as follows:
• Lawyer/Client Communications. A communication between lawyer and client that would have been privileged prior to Grant v Downs remains so.[218] However, materials obtained by the client and submitted in the course of the communication must satisfy the ‘sole purpose’ test—they must be shown to have been brought into existence for the purpose of submission to the legal adviser for legal advice or use in litigation.[219]
• Lawyer/Third Party Communication. It could be argued that in Waind’s case Justice Mason purported to exclude this category from the protection of privilege.[220] It is suggested, however, that, as the documents in that case were not in this category,[221] His Honour’s statement should not be regarded as applying to lawyer/third party communication. As to Grant v Downs itself, the issue framed by the majority in terms related to ‘communications and materials submitted by a client to his solicitor’. The question was considered in Trade Practices Commission v Sterling, where Justice Lockhart held that Grant v Downs did not affect lawyer/third party communications.[222] It could be argued, however, that the reasoning behind the Grant v Downs test would support the application of a ‘sole purpose test’ to this category.[223]
• Client/Third Party Communications. Grant v Downs clearly impinges upon this category, affecting both communications between the client and others and between employees and agents of the client corporation. It is suggested that Grant v Downs has:
― widened the protection to cover communications and other materials submitted by the client to the legal adviser simply for advice and not for use in pending or anticipated litigation;[224]
― narrowed the protection by requiring a ‘sole purpose’ test for the materials submitted to the legal adviser.[225]
It must be conceded, however, that doubts must remain with respect to the application of Grant v Downs to all but the last category of communication.
237. Other Essential Features—Civil and Criminal Trials.[226] Some other aspects of legal professional privilege unaffected by Grant v Downs are uncertain.
• Privilege is that of the Client but may be Waived. It has long been established that privilege belongs to the client and may be waived by him.[227] With regard to a solicitor who has been called as a witness in an action, there is authority to the effect that it is ‘his duty to claim privilege on behalf of his client unless instructed otherwise’.[228] However, the position of a third party whose communication attracts privilege is not clear. In Schneider v Leigh[229] the issue was whether a doctor could claim privilege for a report he had submitted to the defendant’s solicitors about the plaintiff’s medical condition when sued in a separate action for libel by the same plaintiff. Lord Justice Romer joined with Lord Justice Hodson in holding that the doctor could not claim the privilege stating that the privilege extends ‘only to a litigant and his successors’.[230] Lord Justice Singleton however, took the view that the report was privileged, had not been waived and that the plaintiff could not obtain the report. He stated that the privilege, while that of the client:
enures for the benefit of the one who makes the statement or report. If it did not, the difficulties in litigation would be almost impossible. Who would make a statement to a solicitor if he was faced with the risk of an action for libel by the opposite party?[231]
In that case it may have been possible for the client to assert the privilege. The issue remains unresolved of who may claim or waive the privilege in that situation.
As to what may amount to waiver of the privilege:
― Failure to claim. There is conflicting Australian authority about whether a failure to claim privilege in an affidavit of documents amounts to a waiver of the privilege.[232]
― Mention in pleadings. A bare reference in pleadings to a privileged document will not constitute waiver but reproduction of it in the pleadings will.[233]
As to the effect of waiver of the privilege on one occasion upon a claim of privilege in respect of the same communication on a later occasion; it has been said that the waiver must give rise to an estoppel before it can bind a person in subsequent different litigation[234] presumably between the same parties or their privies. In another decision it was held that waiver does not have the result that the relevant communication ceases to be a privileged communication. Waiver was said to affect ‘certain of the consequences which would otherwise flow’ from the privileged status.[235] In particular ‘the communications are then available in evidence’.[236] Another statement as to the effect of disclosure (of the content in pleadings) is that ‘its confidentiality is gone and no question of privilege could arise’.[237] The protection was also treated as lost where documents were disclosed under an order for inspection, no claim of privilege having been made before the order was made.[238] The view that the protection is lost if the party who could claim it allows the document to be disclosed, would seem to gain support from the authorities that a person may give secondary evidence of a privileged document, even if obtained illegally or improperly. The differing statements and approaches may result in part from the use of the unsatisfactory term ‘waiver’.[239]
• The Communications must be Confidential. The communications of the name and address of the client are not normally protected.[240] An issue that has arisen is the effect of the presence of third parties during a conversation between legal adviser and client. In the New South Wales case of Re Griffin[241] Justice Innes stated that:
... if a statement is made in the presence of a third patty, there can be no privilege properly so called. The only privileged communications are those made between the solicitor and client when they are alone.
In the Victorian case of R v Braham & Mason,[242] however, it was held that for a statement to be protected by legal professional privilege the test is whether it was intended as a confidential communication. The accused had been interviewed by a police officer concerning an alleged offence. He then telephoned his solicitor to inquire whether he should sign the record of interview. In the course of this conversation, and in the presence of a police officer, the accused admitted his involvement in the offence. During the trial, counsel for the co-accused sought to cross-examine the police officer concerning the conversation. The accused claimed privilege. Justice Lush was of the view that ‘... each case must be examined to see whether the communication was one which should be classed as confidential’.[243]
• Copies of Non-Privileged Documents. There is English authority that copies or notes of documents such as hospital records or depositions of public hearings are privileged if made by the legal adviser for the purpose of use in litigation notwithstanding that the original documents are not privileged.[244] The reasoning behind these decisions is that the copies and notes were made ‘for the purpose of ... obtaining ... evidence’—that the copies and notes ‘form part of the brief’. There is further English authority that notes and materials made by the legal adviser of the content of non-privileged materials are privileged where the legal adviser has been selective in what he has recorded.[245] On the other hand, there is authority that copies taken by a solicitor of letters that had been lost or destroyed for use in pending litigation were not privileged—the copies did not ‘really come into existence for the purposes of the action within the true meaning of the rule’.[246] In Australia, the Full Court of the Supreme Court of Victoria rejected the proposition that such notes or copies can be privileged in a case relating to a transcript from shorthand notes of court proceedings.[247] It rejected the English authorities to the contrary.[248]
• Copies of Privileged Documents. In Calcraft v Guest,[249] the Court of Appeal held that the copies of documents could be given in evidence, although the original documents were subject to legal professional privilege. Doubts exist, however, because of the decision in Ashburton v Pape.[250] Letters written by the plaintiff to his solicitor were improperly obtained by the defendant by collusion with one of the solicitor’s clerks. The defendant wished to use them in the bankruptcy proceedings. Ashburton brought an action in the High Court to obtain the return of the originals and to prevent Pape from publishing or making use of the copies or information contained in them. Justice Neville granted the order but excepted the proceedings in Pape’s bankruptcy. Upon appeal, this exception was removed by the Court of Appeal. The judgments are rather obscure in their meaning and have been the subject of some academic comment. Cozens-Hardy MR distinguished Calcraft v Guest by saying that: ‘The Court in such an action is not really trying the circumstances under which the document was produced. That is not an issue in the case ...’.[251] In Ashburton v Pape the situation was that ‘... the whole subject-matter of the action is the right to retain the originals or copies of certain documents which are privileged’. The Master of the Rolls went on to say rather obscurely:
It seems to me that, although Pape has had the good luck to obtain a copy of these documents which he can produce without a breach of this injunction, there is no ground whatever in principle why we should decline to give the plaintiff the protection which in my view is his right as between him and Pape ...[252]
Heydon has taken the view that the decisions are in conflict.[253] Tapper, however, argues that the latter passage should be interpreted as meaning:
... that although Lord Ashburton was entitled to the injunction restraining Pape from using the copies without any expressed qualification, nevertheless Pape could still use them in the subsequent litigation as secondary evidence, presumably under the doctrine of Calcraft v Guest, and irrespective of how they have been acquired.[254]
Matthews concludes that:
... Ashburton v Pape, viewed in the light of the earlier authorities, is entirely consistent with them, dealing as it does with breach of confidence, and not at all with questions of admissibility of evidence. The Court of Appeal removed the exception for bankruptcy proceedings from the injunction granted by Neville J, it is submitted, because the injunction was granted to restrain a breach of confidence, and, since such injunctions have no bearing on the admissibility of evidence in subsequent judicial proceedings, the exception was not only unnecessary but in its terms too wide ...[255]
Recently, however, Chief Justice Gibbs commented that Ashburton v Pape was authority for the proposition that:
the owner of the document which has been improperly obtained may secure an injunction prohibiting the use of the document, including its use in evidence, provided that he does so in separate proceedings and before the document has been put in evidence.[256]
The issue has not been resolved in recent English cases. Questions of privilege and breach of confidence arose more recently in Butler v Board of Trade.[257] The plaintiff, Butler, was the client of a solicitor. A copy of a letter written by the solicitor to Butler had come into the hands of the Board of Trade and the Board wished to adduce it in a criminal proceeding in which the plaintiff was the accused. The plaintiff sought a declaration that the original letter was privileged and the copy confidential and that equity would not permit its being tendered in evidence. Because of the nature of the proceedings, ie criminal, Justice Goff rejected the declaration sought:
In my judgment it would not be a right or permissible exercise of the equitable jurisdiction in confidence to make a declaration at the suit of the accused in a public prosecution in effect restraining the Crown from adducing admissible evidence relevant to the crime with which he is charged.[258]
The judgment proceeds on the assumption that use of the documents in evidence could be restrained but does not expressly deal with the issue and does not discuss the relationship between Calcraft v Guest and Ashburton v Pape.[259]
In a recent English case,[260] however, Justice Warner accepted that generally secondary evidence of a privileged document may be given even if improperly obtained and that a party can obtain orders for the return of privileged documents and copies of them. He took the view, however, that where a party obtained by trick documents that were in court, the court should not allow them to be used in evidence. He accepted the argument that the court had the power to do so in the ‘interests of the proper administration of justice’.[261]
As to Australian authority, Chief Justice Jordan in Bell v David Jones Ltd expressed the view that:
the other party, if he is fortunate enough to possess a copy, however obtained, may put it in as secondary evidence of the original notwithstanding that the original is privileged, if the original is relevant and would itself be admissible if it were not privileged.[262]
• Duration of Privilege. In Calcraft v Guest, the Court of Appeal held that documents retained their privilege even after the action had been concluded in respect of which privilege had been claimed. The slogan has been developed—‘once privileged always privileged’.[263] The privilege continues after the death of the client.[264] The issue arises, however, of who may claim or waive the privilege after the demise of the client. So far as privileged communications relating to rights in property are concerned, there is authority that the successor in title to such property may claim the privilege.[265] In Schneider v Leigh, while confirming the foregoing proposition, Lord Justice Hodson qualified it by stating that the privilege exists ‘at any rate, where the relevant interest subsists’.[266] He also stated that the proposition in the Annual Practice[267] that the privilege attaches whether the litigation is the same, the litigants are the same, or the subject-matter is the same was too widely stated.
• Pre-existing Documents Related to a Party’s Case. It has been held that in civil proceedings privilege cannot be claimed for pre-existing documents (or copies thereof) which are obtained by a solicitor for use in litigation or the giving of legal advice.[268] This principle was restated in Frank Truman Export Ltd v Metropolitan Police Commissioner:[269]
In civil law privilege from production cannot be claimed for documents which came into existence before the solicitor was consulted and were then submitted to him for advice ... If there is a difference in this respect between civil and criminal law, it must be because in civil law there is an obligation of disclosure which, as a matter of public policy, overrides the privilege that would otherwise attach ...
As to criminal proceedings, ‘[d]irect authority is strangely scanty on this issue’.[270] However, it has been held that existing documents not prepared for use in legal proceedings are privileged if they are to be used in a criminal proceeding.[271]
• Communications to Further a Fraudulent or Criminal Purpose. Phipson states the basic principle as being that: ‘Communications in furtherance of a fraud or crime, whether the solicitor was a party to, or ignorant of, the illegal object, are not protected’.[272] As to what must be established and the standard of proof required, there are differing statements:
― it must be shown that ‘prima facie, ... there is a bona fide and reasonably tenable charge of crime or fraud’;
― there must be a prima facie case that the communications in question were made in preparation for, in furtherance of or part of the crime or fraud.[273] In LT & KT Conlon v Lonsworth Interstate (Vic) Pty Ltd,[274] however, Justice Little appeared to require (and find) that:
― there existed a ‘prima facie case of fraud’; and
― it seemed ‘to be probable that the communications ... were directed to obtaining advice as to carrying out an intention then in mind and giving effect to the scheme ...’.
Research has not disclosed any authority on what follows where the communication on examination proves not to have been in furtherance of a crime of fraud. Presumably it has lost its privilege.
• Paramount Public Interest in Welfare of the Child? The possibility of an exception to legal professional privilege based on the public interest in the welfare of a child was raised in Re Bell: Ex parte Lees[275] by Justices Gibbs (as he then was) and Murphy. That case involved pending custody proceedings between Mr and Mrs McJarrow in respect of the custody of a child of the marriage. An interim custody order was awarded to the husband. The wife then disappeared with the child. On 11th September, 1979 it was ordered that a warrant be issued directing the Deputy Marshall of the Family Court and all officers of police to take possession of the child and deliver her to the husband.
On 13th September the wife instructed another solicitor, Mr Lees, to protect her interest as joint tenant in the matrimonial home. He was not instructed to act in the custody proceedings.[276] The wife told Mr Lees of a method by which he could get in touch with her but expressly requested that this method be kept confidential. After requests to Mr Lees for information the husband had him called as a witness. He still refused and the husband obtained an order that Mr Lees disclose to the husband’s solicitors the address of the wife at the date of the last communication by her with him. The matter came before the High Court. Justice Gibbs (as he then was) held that privilege would normally attach to a client’s address disclosed in confidence to her solicitor. His Honour expressly found that these facts did not come within the exception related to furthering a crime or fraud.[277] Rather, His Honour considered there was ... another exception ... which I incline to think rests upon an independent foundation. He referred to analogous authorities relating to wards of court whose residence is being concealed from the court.[278] The conflicting principles applicable in this case were resolved by His Honour thus:
... where one party to matrimonial proceedings has failed to comply with an order giving custody of a child to another party, and has taken the child into hiding, the public interest in securing the welfare of the child, and in ensuring that an order made for securing that welfare is not deliberately flouted, prevails over the competing public interest that confidential communications between solicitor and client should be protected from disclosure in order that members of the public may be free to seek that legal advice without which justice cannot properly be administered.[279]
Justice Murphy also referred to the welfare of the child in his judgment:
... it would be curious if the child’s welfare were not paramount over legal professional privilege in circumstances such as those in this case.[280]
The decision of Justice Bell was upheld and the application for prohibition refused. Whether the arguments will be relied upon in subsequent cases remains to be seen. The other members of the High Court reached a similar decision but relied upon different reasons which are considered in the next sub-paragraph.
• Legal Professional Privilege May Not Impede the Administration of Justice. In Re Bell; Ex parte Lees, Justice Stephen held that ‘... to allow a claim to legal professional privilege in the particular circumstances of this case is to subvert the purpose of that privilege, which is to further and not to impede the administration of justice’.[281] He held that:
there was absent from her relationship with the applicant that reposing of professional confidence of which Stephen J spoke in R v Cox & Railton ... When she asked the applicant not to disclose the address with which she supplied him she was using him as ‘an unconscious instrument’ in her continued frustration of the order of the Family Court regarding the custody of Tanya.[282]
Justice Stephen held that the combined effect of all her actions was that:
She was, in effect, seeking to use the processes of the law to protect her interest in the matrimonial home while at the same time acting in defiant disregard of its processes in relation to the custody of Tanya. To confer upon her communication of her address the protection of legal professional privilege would be to allow that privilege to be used for a purpose alien to its whole purpose and history.[283]
Justice Wilson (Justice Aickin agreeing) had regard to the public interest in his decision:
But it would be odd if the privilege extended to protect communications which were directed against the public interest. The attorney’s duty cannot extend to aiding and abetting the client to evade the impact of the orders of the court either by acts of commission or omission: In Re Jacqueline F (1978) 4 FL Reporter 2391.[284]
The wife’s conduct was analysed by His Honour who stated it to be his view that:
... Confidentiality was imperative in order to enable her to avoid discovery of herself and the child, and so continue her defiance of the order of the court. To extend privilege to such a communication does nothing in the circumstances to facilitate ‘the perfect administration of justice’. On the contrary, it enables the continuance of a contempt of court, and bears on its face the taint of illegality.[285]
The application was refused. It may be argued that the effect of these judgments is to create another exception to the application of legal professional privilege. Whether this exception will be applied remains to be seen however.
• The Litigant in Person. In National Employers Mutual General Insurance Ltd v Waind, Justice Mason expressed the view that:
... it is very doubtful whether there is a privilege for documents coming into existence as materials for the purposes of an action to be conducted by a litigant in person.[286]
Privilege has been denied to statements and materials submitted by a dismissed worker to his union in seeking its authority and help in bringing an action.[287] It has been suggested, however, that at some stage ‘a privilege must arise’ to protect the litigant’s brief.[288] In Mayor and Corporation of Bristol v Cox[289] it was argued that the notes of the litigant would be protected.
• Prosecutor’s Brief. In Maddison v Goldrick[290] one of the issues considered was whether the contents of the prosecutor’s brief[291] were protected by the privilege. At the committal proceedings, the magistrate had directed that the brief be produced. Chief Judge at Common Law Taylor, on appeal from this order ruled that the privilege did apply as the documents were ‘brought into existence in anticipation of litigation’.[292] The Court of Appeal, however, held that no legal professional privilege arose. It stated that:
(a) in the case of informations there was no client/legal adviser relationship between the client and prosecutor;[293]
(b) in the case of indictable offences it is not possible to argue that the Attorney-General and Crown Law authorities were involved as client and legal adviser and it could not be said that these statements were obtained for the purpose of placing them before legal advisers.[294]
• Illegally Obtained Evidence. Privileged documents obtained illegally or improperly can be excluded in the exercise of the court’s discretion under the rule in Bunning v Cross.[295] The law is unclear and is discussed below.[296] Copies of such documents could also be excluded.
238. Legislation—Party’s Own Documents Privilege. In some jurisdictions the privilege has been limited or abrogated. Under the Federal Court Rules (Order 15, rule 7) and New South Wales Supreme Court Rules (Part 23 rule 6A) relating to pre-trial discovery this claim of privilege is abolished, except with the leave of the Court. However, where leave is granted, it can be revoked. It presumably is still available at trial. In Queensland the rule has been abrogated in relation to civil proceedings.[297] In the ACT[298] it is provided that:
A party to a civil proceeding is not entitled to refuse to produce a document for the purposes of that proceeding on the ground that the document relates solely to the patty’s own case and in no way tends to impeach that case or support the case of any opposing party.
The Court of Petty Sessions Civil Jurisdiction Ordinance s 166, however, sets out a provision similar to the Federal Court Rules.
239. Legislation—Patent Attorneys. A limited privilege is conferred by s 134(1A) of the Patents Act:[299]
A communication between a patent attorney and his client is privileged to the same extent as a communication between a solicitor and his client.
240. Legislation—Limits on Privilege. Western Australia is the only Australian State in which there is legislation affecting this type of privilege. Section 32A provides:[300]
32A. (1) This section applies only in respect of—(a) civil proceedings in or before a court;
(b) arbitrations; and
(c) civil proceedings in or before any tribunal that is not a court.
(2) In this section—‘privilege’ means privilege that would, apart from this section and the Rules of Court mentioned in subsection (3) of this section, attach to documents prepared for the purpose of pending or contemplated proceedings or in connection with the obtaining or giving of legal advice; and
‘Rules of Court’, without affecting the operation of section forty of the Interpretation Act, 1918, includes rules, regulations, and by-laws prescribing the practice and procedure for and in relation to proceedings in respect of which this section applies.
(3) There shall be a derogation of privilege to the extent that Rules of Court applicable to expert evidence so provides.
(4) Without limiting any other power to make Rules of Court in respect of any tribunal of the kind that is referred to in paragraph (c) of subsection (1) of this section, such Rules of Court may make provision for prescribing matters relating to expert evidence, including the disclosure, by the furnishing of copies of reports or otherwise, of the nature and substance of the expert evidence to be given, and including the exclusion of expert evidence in case of non-compliance with the rules relating to expert evidence or with any order for the disclosure of the nature and substance of expert evidence, and in relation thereto–
(a) for the imposition of differing requirements depending on different classes of cases, different classes of matters, or other different circumstances; and
(b) for the conferring of a discretionary authority.
The legislation empowers the making of rules of court limiting legal professional privilege as it affects expert evidence. Rules of Court have been made for the disclosure of medical and other expert reports.[301] Rules of court have also been made in South Australia[302] and in New South Wales.[303] These rules relate to actions for personal injuries. The purpose of the rules is to compel disclosure of those reports which the parties intend to rely upon at the trial. Thus they do not require disclosure of all reports in the possession of parties. It is difficult to suggest how such rules could apply in cases in federal courts.[304]
241. The Common Law. There is little authority with the result that the law is unclear:
• Judges. There is authority that judges are competent but not compellable to testify about matters on which they are or have been judicially engaged.[305] There is also authority, however, that ‘inferior judges’ are compellable and that court officers are compellable. The meaning of ‘inferior judges’, however, is not clear.[306] There is little direct authority on the question of whether evidence can be adduced from a judge about the considerations which led him to his decision or about the manner in which he has exercised his judicial powers. In Zanatta v McCleary[307] Chief Justice Street stated that such evidence could not be adduced from a judge. Justice Samuels stated that a judge is not compellable to give such evidence.[308] The former approach represents a ban on such evidence and is analogous to public interest privilege whereas the latter view, in terms, must be raised by the judge if called to give evidence. Whether exceptions may be contemplated was not stated. The statements would suggest not.
• Jurors. Until 1670 juries were frequently punished for verdicts proved wrong on appeal or contrary to the direction of the judge.[309] The immunity of jurors from punishment for wrongful verdicts was established in Bushell’s case[310] and it was further held by Chief Justice Vaughan that a jury could not be punished in a criminal case for such a finding. At this stage the need of a juryman to explain the reasons for his verdict ceased and the public interest in the secrecy and privacy of jury considerations became paramount. A juror is no longer allowed to give evidence as to what occurred during the deliberations of the jury or as to his reasons for decision.[311] He may, however, give evidence that he did not assent to the verdict as reported by the foreman if he could not hear it. In Ellis v Deheer[312] on an application for a new trial of an action tried before a jury, on the ground that the verdict delivered by the foreman was not the verdict of the whole jury, the court admitted affidavits of certain jurors that they did not hear the verdict delivered and did not assent to it, and, accepting those statements to be true, the court held that it was not precluded from granting a new trial by the fact that the objection to the verdict was not taken until after the jury had been discharged.[313]
There are other exceptions—evidence to rebut the impugning evidence of a stranger.[314] However it is unclear whether further exceptions would not be allowed—for example evidence that another juror had successfully bribed or threatened the others.[315] It must be queried, too, whether evidence of duress brought to bear on jurors would in any circumstances be admissible in later proceedings.[316]
• Arbitrators. Arbitrators are both competent and compellable. The arbitrator, however, may not be asked questions as to his grounds for decision.[317] This fact is said by the New South Wales Law Reform Commission[318] to be a ‘matter of privilege or of an exclusionary rule, not of compellability’.
242. The Common Law Discretion. In most jurisdictions the common law is applied in determining whether evidence is protected from disclosure on the ground that disclosure would harm state interests. There is a considerable body of case law and, until recently, there was doubt in Australia about the scope of the protection and the extent to which a court would investigate a claim of privilege.[319] These doubts were resolved by the High Court in Sankey v Whitlam.[320] The question that reached the High Court was as to the obligation of the defendant to produce various documents in view of the finding of the Magistrate that they were immune from production on the ground of ‘Crown’ privilege.[321] On the question of privilege it was held by Acting Chief Justice Gibbs and Justices Stephen, Mason and Aickin (Justice Jacobs not agreeing that this question should then be determined) that, with the exception of the Loan Council documents, such papers were not privileged from production. The official papers and Government documents fell into two classes:
(a) Papers and documents subject to a claim of privilege by the Commonwealth, upheld by the magistrate; these consisted inter alia of an explanatory memorandum and schedule relating to a Federal Executive Council meeting, a minute paper by a senior Treasury official of which an alleged copy had been published unofficially, and Federal Loan Council documents, being Commonwealth loan programme submissions to relevant meetings of the Federal Loan Council, loan programmes approved at such meetings, and the minutes of such meetings;(b) Papers and documents in respect of which the Commonwealth did not claim privilege, and which the magistrate had ordered to be produced, consisting inter alia of Federal Executive Council minute papers, miscellaneous letters, telexes, and notes from RFX Connor and his Department to a Federal Executive Council meeting; these papers and documents had been tabled in the Federal Parliament.
Acting Chief Justice Gibbs stated from the proposition that:
It is in all cases the duty of the court, and not the privilege of the executive government, to decide whether a document will be produced or may be withheld. The court must decide which aspect of the public interest predominates, or in other words whether the public interest which requires that the document should not be produced outweighs the public interest that a court of justice in performing its functions should not be denied access to relevant evidence.[322]
His Honour divided the objections that might be made against the production of documents or the giving of oral evidence in this respect into two:[323] because it would be against the public interest to disclose the contents of a document or because it ‘belongs to a class of documents which in the public interest ought not to be produced’, whether or not it would necessarily be harmful to produce the contents of the particular document. As a general statement, His Honour held that the withholding of a document by reason of the class to which it belongs would only occur where it was necessary to the proper functioning of the ‘public service’. He noted that an acceptable ‘class’ has been said to be Cabinet minutes and minutes of discussions between heads of departments,[324] papers brought into existence for the purpose of preparing a submission to Cabinet[325] and, indeed, any documents which relate to the framing of governmental policy at a high level.[326] He also noted that according to Lord Reid, the class would extend to all documents ‘concerned with policy making within departments including, it may be, minutes and the like by quite junior officials and correspondence with outside bodies’.[327] His conclusion was that:
although there is a class of documents whose members are entitled to protection from disclosure irrespective of their contents, the protection is not absolute, and it does not endure for ever.[328]
Documents in the class may be withheld from production only when this is necessary in the public interest, the court engaging in a process of balancing the different interests. Thus, an affidavit signed by a Minister or a departmental head stating a document to be in a class deserving protection will not be conclusive.
243. Justice Stephen[329] said that to accord privilege as a matter of course to the kind of documents in question was to come close to conferring immunity from conviction upon those who may occupy or have occupied high offices of state if proceeded against in relation to their conduct in those offices.[330] Justice Mason referred to Lord Reid’s judgment in Conway v Rimmer[331] where his Lordship said that there should be a prohibition against the disclosure of Cabinet proceedings ‘until such time as they are only of historical interest’. Justice Mason felt that this was unduly restrictive unless ‘one takes an expansive view of what is historical’. By majority[332] the High Court pronounced the so-called ‘Crown privilege’ did not attach to the documents except the Loan Council documents. It considered that the public interest in the administration of justice outweighed any public interest in withholding the documents, so that they were produced.[333]
244. It is clear that in making its determinations on production in future, the High Court will take into account:
• the general subject matter of the documents sought or the testimony to be given;
• the likelihood of the result of any real harm;
• the importance of the documents or testimony to the litigation; and
• any special features of the proceedings which may weigh in favour of disclosure or otherwise.[334]
245. An Extension of the Concept. The case of D v National Society for the Prevention of Cruelty to Children[335] has provided important analysis of ‘public interest’ privilege. By statutory enactment the Society was empowered, but not obliged, to bring ‘care proceedings’. To assist it in its function, the Society endeavoured to enlist public co-operation in reporting suspected cases of child abuse. Without an effective promise of confidentiality, neighbours and other informants were said not to be prepared to pass on such information. A report of ill-treatment of a young child was made and investigative action was undertaken which revealed no signs of ill-treatment of the child. The respondent claimed that her health was affected by the ‘false accusation’ against her and wished to find out the name of the informant so as to bring proceedings. The Society applied[336] for an order that there should be no discovery or inspection of documents which would reveal or be capable of revealing the informant’s identity. The House of Lords held that by analogy with the rule relating to the immunity accorded to police informants, the public interest required that those who gave information about child abuse to the society should be immune from disclosure of their identity in legal proceedings since, otherwise, the society’s sources of information would dry up. The public interest required to be protected was the effective functioning of an organisation authorised by Parliament to bring proceedings for the welfare of children.
246. Lord Simon’s judgment is particularly provocative. He started from the proposition that the administration of justice is a fundamental public interest but that it is only an aspect of a broader public interest in the maintenance of social peace and order.[337] In the light of this approach, His Lordship identified the organs of local and central government as playing an important role in the maintenance of social order and security, and thus on a number of occasions deserving of consideration in the restraint of disclosure of information constituting part of their workings. He applied a balancing test. His approach was to look first to see if the law already recognised a head of public policy relevant to the case. He found this in the ‘need of continuity in society,[338] the legal application to children of the traditional role of the Crown as parens patriae. He also noted the fact that patria potestas in respect of children in need of help has largely devolved upon local authorities. As confidentiality of sources was admitted to be necessary for the accomplishment of a function acknowledged by the community to be important, His Lordship was prepared to view the balance as sufficiently weighted in this instance to allow exclusion of the evidence and give priority to the effective functioning of the body. Lord Hailsham, made the important point that, while this was a public interest already recognised in some respects by the courts, the categories of public interest are not closed ‘and must alter from time to time whether by restriction or extension as social conditions and social legislation develop’.[339] The decision was approved and followed by Justice Sheppard in Trade Practices Commission v Queensland Aggregates Pty Ltd.[340]
247. Legislative Modification. In 1979 the New South Wales Evidence (Amendment) Act 1979 was passed. It negatives the effect of Sankey v Whitlam in respect of:
written or oral communications relating to–(a) proceedings of Cabinet, of a committee of Cabinet or the Executive Council;
(b) the formulation of government policy;
(c) government administration at senior level.[341]
The major section is s 61 which provides that when the Attorney-General certifies that in his opinion any communication described in his certificate is a ‘government communication’, is ‘confidential’ and its disclosure in any legal proceedings described in the certificate is not ‘in the public interest’, the communication shall not be disclosed or be admissible in evidence in those legal proceedings. The certificate of the Attorney-General is conclusive. Further, a communication shall not be disclosed or be admissible if it appears to the person presiding in the court before which the legal proceedings are held that the communication is a government communication and that the Attorney-General has not had an opportunity to give a s 61 certificate.
248. The effect of the provisions does more than to overturn the decision in the Sankey case in relation to the category of documents described. Before their enactment it was still acknowledged that a court had a discretion to order the production of documents, although there had been a number of judicial statements to the effect that the discretion should be used only in exceptional circumstances in relation to certain categories of documents such as state papers.[342] The Evidence (Amendment) Act 1979 (NSW) abolishes that discretion altogether. It limits to the courts the rubber stamping role conferred upon them by the decision of the House of Lords in 1942 in Duncan v Cammell Laird & Co Ltd.[343] The Senate Standing Committee on Constitutional and Legal Affairs has commented:[344]
the Act retires the New South Wales courts to a role that they have never previously accepted, as the ruling of the House of Lords had always been resisted in Australia in relation to class claims, both by the Privy Council and by the New South Wales Supreme Court.[345]
249. Section 42D of the Evidence Amendment Act 1982 of the Northern Territory follows similar lines. It relates to the disclosure of the contents of the document or record in legal proceedings described in a certificate of the Attorney-General as not in the public interest:
(a) because it would involve the disclosure of communications between –(b) because it would involve the disclosure of deliberations or decisions of, or matters presented to or considered by–(i) the Executive Council, or a member thereof, and the Administrator;
(ii) a Minister and a Minister of the Commonwealth or of a State; or
(iii) a Commonwealth Minister and a Minister of a State; or
(i) the Executive Council or a committee of the Executive Council; or
(ii) the Territory Cabinet or a committee of the Territory Cabinet, the document or record shall not be disclosed in or in relation to, or be admissible as evidence in, those legal proceedings.[346]
Once more, the certificate of the Attorney-General is conclusive and provision is made for a procedure to cover the times when matter is sought to be tendered or testimony given which the Attorney-General has not had an opportunity to consider. The express reference to inter-government communications raises doubts as to whether they would be covered under the New South Wales legislation—where no express reference is made. The absence of the general category—the formulation of government policy—in the Northern Territory legislation gives it narrower scope in that respect. The legislation does not totally exclude the common law. Thus in respect of other categories of communication or where the Attorney-General has had the opportunity to invoke the procedure but has not done so, the common law can operate.
250. Common Law—Civil Trials. The law protects from disclosure the content of communications between parties and their agents made in the course of an attempt to settle a dispute between them.[347] Often communications are expressed to be ‘without prejudice’. It is not necessary, however, that documents be expressed in specific terms to be ‘without prejudice’ for the privilege to apply. Similarly the words ‘without prejudice’ are not conclusive. In each case it is necessary to examine the true nature of the communication and whether the parties intended to seek a compromise.[348]
251. There is authority, from the family law field, that statements made to a mediator by spouses may not be disclosed by the mediator without the consent of such spouses.[349] The consent of both spouses is necessary before the privilege can be waived.[350] Once the negotiations have been concluded by an agreement, that which was agreed to may be proved.[351] The protection extends to materials produced for the purpose of negotiation—for example reports by experts.[352] There are, however, some areas of uncertainty and doubt:
• Collateral Statements. It has been held that statements not ‘reasonably incidental to the negotiations’ are not protected. This issue was considered by the High Court in Field’s case.[353] The case concerned a claim for damages. Field, the plaintiff, alleged that while lawfully alighting from a train he was thrown on to the station and was injured. In the course of ‘without prejudice’ negotiations, an appointment was made for Field to attend the rooms of a doctor for examination for the Commissioner. At the examination Field, in giving a history of his injury, stated that he stepped out of a slowly moving train as it had overrun the platform at which he wished to alight. The Commissioner called the doctor who, having stated that he had obtained a history from the plaintiff, was then asked to narrate that history. Objection was taken by Field’s counsel upon the ground that the interview with the doctor was privileged as being ‘without prejudice’. The trial judge overruled the objection. On appeal, the majority expressed the issue as follows:
... whether it was fairly incidental to the purposes of the negotiations to which the medical examination was subsidiary or ancillary that the plaintiff should communicate to the surgeon appointed by the Railway Commissioner the manner in which the accident was caused.[354]
They held that:
To answer this question in the affirmative stretches the notion of incidental protection very far. The defendant’s contention that it was outside the scope of the purpose of the plaintiff’s visit to the doctor to enter upon such a question seems clearly right ... It was not reasonably incidental to the negotiations that such an admission should be protected. It was made without any proper connexion with any purpose connected with the settlement of the action. In these circumstances it appears that the evidence of Dr Teece on this subject was admissible.[355]
The appeal was dismissed.
There were two reported decisions of relevance before Field’s case both of which supported a different distinction—between statements pertaining to the dispute and collateral statements with only the former being protected.[356]
• Third Parties. It is unclear whether the privilege applies between and binds only the parties and their agents and does so only in respect of the dispute between them and until its resolution. Cross argues that this is the position.[357] It may be argued however, that one case relied upon, Barden v Barden,[358] was concerned with collateral admissions and does not support the proposition.[359] On the other hand, in Goodman v Hughes[360] Chief Justice Stawell and Justice Molesworth held that the privilege did not apply in respect of an agent’s communication made in respect of a pending action ‘after that action is terminated, and after proceedings which could not have been contemplated have been instituted ...’ but the privilege could apply if the communication had been expressed to be ‘without prejudice, not only to this suit but to all future transactions’. They also held that the person claiming the protection had been merely the agent and that the ‘without prejudice’ reservation did not purport to apply to him personally. There is an inconclusive South Australia decision.[361] Phipson[362] supports the Cross proposition relying upon two cases in the Times—Stretton v Stubbs,[363] and Teign Valley Co v Woodcock.[364] Both cases have been considered in Canada and disapproved. The law there appears to be that a party to a correspondence within the ‘without prejudice’ privilege is, generally speaking, protected from being required to disclose it on discovery or at a trial in proceedings by or against a third party.[365]
• Secondary Evidence. No authorities have been identified on this topic. It has been suggested that ‘it is doubtful whether secondary evidence of a ‘without prejudice’ communication is admissible’.[366] Comparison should be made with the cases concerning secondary evidence of communications protected by legal professional privilege.
252. Evidence of physical matters seen at a privileged occasion are not subject to the privilege.[367] It is limited to protecting statements being used in evidence. It cannot prevent acts having their legal consequences.[368] Differing explanations have been given for this limitation:
These words [‘without prejudice’] prevent the utilization of the documents on which they appear for the purpose of drawing inferences from the fact that a compromise was contemplated, they do not have the effect of preventing acts of bankruptcy nor can they alter the nature of an illegal threat, nor, in a case where a person may elect to one or another course of action, do they remove the elective nature of his adopting one alternative.[369]
Heydon, however, has explained such cases on the basis that the evidence is led not to prove the truth of what was written but to prove that statements were made—as acts of bankruptcy, breaches of legislation etc.[370] This rule of privilege may not operate to mislead a court.[371]
253. The consent of both parties is required for evidence to be admissible.[372] There is authority that the protection can be lost for one party, however, if that party has disclosed the communication in an action.[373] There is also authority that protection does not extend to any words or conduct of a criminal or tortious nature even though they occurred in the course of compromise discussions[374] or which form part of a cause of action.[375]
254. Common Law—Criminal Trials. Few reported cases have been identified where the application of this privilege has arisen in the settlement of criminal cases. The authorities are divided in the United States and Canada.[376] Vavey mentions two cases where negotiations to settle a criminal case were held to be protected.[377] The topic of confidentiality of such communications is closely connected to the general topic of plea bargaining. As to the use in criminal proceedings of statements made in negotiations to settle civil disputes, there is little authority. There is a dictum of Lord Justice Scrutton that a ‘without prejudice’ letter may be used in ‘criminal matters’.[378]
255. Legislation. There are provisions of relevance in the Family Law Act 1975 (Cth):
18(1) This section applies to –(a) a marriage counsellor;
(b) a person nominated, or acting on behalf of an organization nominated, in accordance with sub-section 14(2A) or paragraph 14(6)(a); or
(c) a person to whom a party to a marriage has been referred by a marriage counsellor, or by a person referred to in paragraph (b), for medical or other professional consultation.
(2) Evidence of anything said or any admission made at a conference with a person to whom this section applies acting in the capacity referred to in sub-section (1) is not admissible in any court (whether exercising federal jurisdiction or not) or in proceedings before a person authorized by a law of the Commonwealth or of a State or Territory, or by consent of parties, to hear evidence.
62(1) Where, in any proceedings under this Act, the welfare of a child who has not attained the age of 18 years is relevant, the court may at any stage of the proceedings, of its own motion or upon the request of a party to the proceedings, make an order directing the parties to the proceedings to attend a conference with a court counsellor or welfare officer to discuss the welfare of the child and, if there are any differences between the parties as to matters affecting the welfare of the child, to endeavour to resolve those differences.
(2) Where the court makes an order under sub-section (1), it may fix a place and time for the conference to take place or direct that the conference shall take place at a place and time to be fixed by a court counsellor or welfare officer.
(3) If a party fails to attend a conference in respect of which an order has been made under sub-section (1), it is the duty of the court counsellor or welfare officer to report the failure to the court.
(4) In proceedings of a kind referred to in sub-section (1), the court may obtain from a court counsellor or welfare officer a report on such matters relevant to the proceedings as the court thinks desirable, and may receive the report in evidence, and the court may, if it thinks necessary, adjourn the proceedings for the purpose of obtaining such a report.
(5) Subject to sub-section (4), evidence of anything said or of any admission made, at a conference that takes place in pursuance of an order made under this section is not admissible in any court (whether exercising federal jurisdiction or not) or in proceedings before a person authorized by a law of the Commonwealth or of a State or Territory, or by consent of parties, to hear evidence.
256. The protection conferred by s 18 has been held to be additional to the common law protection of statements made in the course of negotiations.[379] It has been held to belong to the counsellor and not the party. Further, it has been held that where it is unclear whether a counsellor was involved as a marriage counsellor or a welfare officer under s 63 of the Act, the counsellor could not give evidence of the conferences.[380] Section 62(4) authorises the obtaining of a report that can also be obtained under s 63(2). The latter provision, however, is limited to the situation where the Court is in doubt as to the adequacy of the arrangements proposed for the children of the marriage. No statutory privilege is created for the latter type of investigation. As to the operation of s 62, it is apparently the practice of some registries to have different counsellors or officers to conduct the conference and to make a report.[381] s 62(4) and (5) were considered by the High Court in Re Cook; Ex parte Twigg[382] Justice Gibbs said:
Moreover, the combined effect of subs (4) and (5) is that a report of a court counsellor on matters relevant to proceedings concerning the welfare of a child may be received in such proceedings, and that no evidence of anything said at a conference is otherwise admissible. It is impossible to suppose that the Parliament intended that a patty might be charged with contempt for failing to give information at a conference, when it would not be legally possible, on the hearing of the charge, for the patty charged, or any other person, to give evidence of anything said at that conference.[383]
257. Common Law. In most jurisdictions a common law privilege exists. At common law a witness who is not a party to proceedings cannot be compelled pre-trial or during the trial to produce his title deeds or other documents relating to his title to any real property.[384] Similarly, it would seem that a party/witness cannot be compelled to produce title deeds at the trial.[385] There is authority that secondary evidence can be given and that the lawyer in possession of the deeds is entitled to claim the privilege.[386] As to documents relating to title to personal property, Wigmore[387] stated:
[The] principle ... that the disclosure of title deeds in litigation between other parties was not compellable ... was occasionally extended to documents other than those affecting land, though it seems even to have been regarded as limited by the trial court’s discretion.
Wigmore cited numerous authorities for this proposition. Three appear to relate to the question of the privilege of a witness to object to producing documents relating to his title to personal property.[388] The reported cases relate to civil proceedings. A dictum of Lord Denman suggests that the privilege could be claimed in criminal proceedings.[389] Phipson states that it is available but no reported cases have been found.[390]
258. Legislation. There is legislation in Queensland and the Australian Capital Territory. In Queensland the rule as it relates to documents of ‘title to land’ has been abolished for civil proceedings.[391] In the Australian Capital Territory the legislation[392] is not limited to civil proceedings. Neither provision purports to deal with documents of title to personal property.
[1] Rumping v Director of Public Prosecutions [1964] AC 814, 833, 834. See, however, Greenleaf, writing on the eve of the English legislation in 1842, and Best in 1849, quoted in Shenton v Tyler [1939] LR Ch D 620, 633, 634. Note the doubt created by the original Victorian legislation 17 Vict 11 (14 March 1854) which in terms assumed the existence of a privilege. See also the privilege against self-incrimination insofar as it pertains to spouses.
[2] Enacted by the Evidence (Amendment) Act 1922, No 3, s 2.
[3] In R v Pierce [1917] NSWStRp 8; (1917) 17 SR (NSW) 135 Justice Pring said that the section refers only to a case where the husband or wife is actually giving evidence and protects any statement made by one spouse to the other in confidence and privacy. A better expression of this decision would have been that the section made a spouse incompetent (now ‘competent but not compellable’: Evidence (Amendment) Act 1922, No 3, s 2) to disclose any communication made to him by the other spouse during the marriage, but did not render it inadmissible per se and that, therefore, it could be tendered in evidence by witnesses other than spouses.
[4] In Williamson v Williamson (1921) SR (NSW) 216, 217-8, Street CJ saw the meaning of the words of s 11 as not confined to cases where the communication tendered in evidence is of a strictly confidential nature, but extending to ‘all communications of whatever nature which pass between husband and wife.’
[5] See compellability above. The legislation is silent about civil trials.
[6] It seems that the privilege does not attach to the communication generally. If someone other than the spouse has knowledge of the communication, he can give evidence of it. Larnach v Alleyne (1865) 2 WW and AB (E) 39; R v Dowling [1883] VicLawRp 51; (1883) 9 VLR(L) 79.
[7] Evidence Act 1910 s 94(1). Note the exception relating to matrimonial proceedings.
[8] Evidence Act 1958 s 27.
[9] Evidence Act 1977 s 11.
[10] Evidence Act 1929 s 8, 21—where called as a witness by the defence or where a non-compellable witness for the prosecution.
[12] [1922] NSWStRp 39; (1922) 22 SR (NSW) 570.
[13] id, 583.
[14] His Honour expressed similar views in Williamson v Williamson [1921] NSWStRp 10; (1921) 21 SR (NSW) 216. See also GL Peiris, ‘Medical Professional Privilege in Commonwealth Law’ (1984) 33 ICLQ 301, 320.
[15] [1939] Ch 620.
[16] Section 3 of the Evidence Amendment Act, 1853, which provided—‘No husband shall be compellable to disclose any communication made to him by his wife during the marriage and no wife shall be compellable to disclose any communication made to her by her husband during the marriage’.
[17] [1939] Ch 620, 639.
[18] id, 641. In Moss v Moss [1963] 2 QB 799. 804 Havers J said that Monroe v Twisleton, Doker v Hasler and O’Connor v Marjoribanks had been cited without criticism or dissent by the Court of Appeal in Shenton v Tyler, but Moss v Moss related to a decree of judicial separation.
[19] (1802) Peake’s Add Cas 219.
[20] (1824) Ry & M 198.
[21] [1842] EngR 703; (1842) 4 Man & G 435.
[23] id, 864.
[25] [1964] AC 814, 860.
[26] id, 865.
[27] id, 834.
[28] id, 843.
[29] The cases, and in particular R v Algar [1954] 1 QB 279 can be interpreted to apply a consistent interpretation of the legislation. That consistent interpretation produces different results:
• the legislation dealing with competence and compellability does not apply to former spouses and, therefore, the common law does—therefore, Monroe v Twistleton can apply to render former spouses incompetent as witnesses;
• the legislation relating to privilege does not apply to former spouses—therefore, the common law does and there is no privilege.
[30] Duchess of Kingston’s Trial [1675] EngR 170; (1776) 11 St Tr 198, 243. The lack of privilege was acknowledged with reluctance in Wilston v Rastall (1792) 4 Term Rep 753, 759-60 (‘There are cases, to which it is much to be lamented that the law of privilege is not extended; those in which medical persons are obliged to disclose the information which they acquire by attending in their professional characters’); Falmouth v Moss (1822) 11 Price 455, 470-1. The lack of privilege is also acknowledged in Broad v Pitt [1829] EngR 366; (1828) 3 Car & P 578, 579; Greenough v Gaskell (1833) 1 My and K 98, 103; Greenlaw v King [1838] EngR 1046; (1838) 1 Beav 137, 145; Russell v Jackson [1851] EngR 955; (1851) 9 Hare 387, 391; Wheeler v Le Marchant [1881] UKLawRpCh 106; (1881) 17 Ch D 675, 681; R v Gibbons [1823] EngR 660; (1823) 1 C & P 97; Garner v Garner (1920) 36 TLR 196, 197. See also Nuttall v Nuttall and Tuyman (1964) 108 Sol J 605 (a psychiatrist) and Parry-Jones v The Law Society [1969] 1 Ch 1, 9; Atkinson v Atkinson (1825) 2 Add 468, 470.
[31] R v St Lawrence’s Hospital Statutory Visitors, ex parte Pritchard [1953] 1 WLR 1158, 1165-6.
[32] [1973] QB 148. The decision examined the principles which should guide the court’s exercise of the discretion, conferred by the Foreign Tribunals Act 1856, s 1(1) to order examination of witnesses on oath. In the course of his reasoning Cooke J stated that he was required to apply the principles applied by English courts to the examination of witnesses in English courts.
[33] id, 152.
[35] id, 775; and 773 (Boreham J).
[36] (1973) 4 ACTR 9, 10-11.
[37] Evidence Act 1958 (Vic) s 28(2). The section was first enacted in Victoria in almost identical form in the Law of Evidence Consolidation Act 1857, 21 Vict 8 as part of s XVIII which also conferred a religious privilege. The precedent was a New York statute of 1828; see National Mutual Life Association of Australasia Ltd v Godrich [1909] HCA 93; (1910) 10 CLR 1, 13; X v Y (No 1) [1954] VicLawRp 49; [1954] VLR 708, 709. The text of the American precedent is quoted in Warnecke v Equitable Life Assurance Society of the United States [1906] ArgusLawRp 82; [1906] VLR 482, 486. Throughout consolidations of the law of evidence there were only minor changes: 24 Vict 100 (s XIX), 27 Vict 197 (s 47), 54 Vict No 1088 (s 55), 6 Geo V No 2647 (s 28), 19 Geo V No 3674 (s 28), Evidence Act 1958, No 6246 (s 28). In 1864 brackets were added in s 47 of 27 Vict 197; in 1915 ‘be the matter in dispute’ was changed to ‘is the matter in dispute’ and ‘may have acquired’ was changed to ‘has acquired’ (in s 28 of 6 Geo V No 2647).
[38] [1974] VicRp 68; [1974] VR 577, 584; X v Y [1954] VR 708, 712.
[39] Hare v Riley & AMP Society [1974] VicRp 68; [1974] VR 577, 581. It was also decided that the mere fact that the doctor is himself a defendant does not prevent the provision from operation.
[40] See below.
[41] Warnecke v The Equitable Life Assurance Society of the United States [1906] ArgusLawRp 82; [1906] VLR 482 (A’Beckett ACJ).
[42] id, 486. This view was confirmed in National Mutual Life Association of Australasia Ltd v Godrich [1909] HCA 93; (1910) 10 CLR 1, 3-4, 9. In deciding that ‘information acquired’ could not be limited to communications, the High Court referred to other sections in the Victorian Evidence Act 1958, where the expressions used were ‘communication’ in the spouse’s privilege (s 27) and ‘confession’ in the penitent’s privilege (s 28(1)), to find a legislative intention to distinguish the medical privilege and protect more information: id, 8-10 (Griffith CJ; 16-20, 25 (Barton J); 27, 31 (O’Connor J); 36-7 (Isaacs J); 41 (Higgins J). See also id, 19 (Barton J); 35-7 (Isaacs J); 40-41 (Higgins J); Warnecke v The Equitable Life Assurance Society of the United States [1906] ArgusLawRp 82; [1906] VLR 482, 486; Hare v Riley & AMP Society [1974] VicRp 68; [1974] VR 577, 582 (Norris J). It is interesting to note that Isaacs J (34) related the legislature’s choice of words ‘information acquired’ to the use of the same words by Bullet J in Wilson v Rastall [1792] EngR 3089; (1792) 4 TR 753, 760 when he lamented that no medical privilege was recognised at common law.
[43] Warnecke v The Equitable Life Assurance Society of the United States [1906] ArgusLawRp 82; [1906] VLR 482 (Hodges J); National Mutual Life Association of Australasia Ltd v Godrich [1909] HCA 93; (1910) 10 CLR 1, 27, 29 (O’Connor J).
[44] [1974] VicRp 68; [1974] VR 577, 582.
[45] [1909] HCA 93; (1910) 10 CLR 1, 37-8.
[48] id, 23.
[49] id, 29-30.
[50] [1954] VicLawRp 49; [1954] VLR 708, 713.
[51] id, 714.
[52] [1909] HCA 93; (1910) 10 CLR 1, 28-9, 31.
[53] [1954] VicLawRp 49; [1954] VLR 708, 711.
[54] He gave as examples an unconscious patient attended by a doctor called by a relative of a patient in a public hospital and the medical officer assigned to his case. In X v Y (No 1) [1954] VicLawRp 49; [1954] VLR 708, 711-2, two doctors were called by a husband to examine his wife without her consent to see if she should be certified under s 45 of the Mental Hygiene Act 1928 for admission to a receiving house. They were not shown to be her former medical attendants, were not intending to prescribe or act within the section and were not giving treatment. Sholl J said s 45 was for the protection of the public, which suggested that the doctors were not attending the wife as a patient unless more was shown. It seems likely that other legislation would be interpreted to like effect.
[55] [1909] HCA 93; (1910) 10 CLR 1, 10-1.
[56] id, 12.
[57] id, 28.
[58] [1963] VicRp 60; [1963] VR 421.
[59] id, 427.
[60] [1964] VicRp 17; [1964] VR 112.
[61] id, 113-4 (following dicta of three judges).
[62] id, 115.
[63] id, 115-6.
[64] In Hare v Riley and AMP Society [1974] VicRp 68; [1974] VR 577, 580, Norris J adopted the statement of Gillard J that the right to consent was a curial right, only exercisable in court, not a proprietary right, but, even if a proprietary right, not vested in the widow as such.
[65] s 96(2) of the Tasmanian Evidence Act 1910 and s 12 of the Northern Territory Evidence Act.
[66] [1978] VicRp 15; [1978] VR 171.
[67] In Taylor v Taylor [1956] Tas SR 84 the Supreme Court considered that a communication in the presence of a third party was protected. See also Harris v Harris [1931] P 10.
[68] The problem could be solved if an executor agrees to renounce his executorship under s 16(1)(c) of the Administration and Probate Act 1958 and if letters of administration are granted to the relative bringing the action under s 18 of the Wrongs Act 1958. In Hare v Riley and AMP Society [1974] VicRp 68; [1974] VR 577, 579, Norris J referring to Sholl J in X v Y (No 1) [1954] VicLawRp 49; [1954] VLR 708, considered the soundness of Wigmore’s suggestion that if a patient sues a physician for negligence it ought to imply consent by the patient so that the physician can use the protected information to defend himself and rejected it as inconsistent with the statement of Higgins J in National Mutual Life Association of Australasia Ltd v Godrich [1909] HCA 93; (1910) 10 CLR 1, 41-2.
[69] Lord Hailsham (ed) Halsbury’s Laws of England, 4th edn, Butterworths, London, 1976, vol 17, para 237, n 4; JA Gobbo, D Byrne & JD Heydon, Cross On Evidence, 2nd Aust edn, Butterworths. Sydney, 1979, para 11.35; JF Stephen, A Digest of the Law of Evidence, 12th edn, Macmillan, London, 1948, 220; JH Buzzard, R May & MN Howard, Phipson on Evidence, 12th edn, Sweet & Maxwell, London, 1976, para 588; JT McNaughton (ed) Wigmore on Evidence, Little, Brown & Co, Boston, 1961, vol 8, para 2394; LH Hoffmann, The South African Law of Evidence, Butterworths, Durban, 1970, 194-5; cf GD Nokes, ‘Professional Privilege’ (1950) 66 LQ Rev 88, 98 who suggests the question ‘might appear’ to be open.
[70] See Butler v Moore (1802) reported in MacNally, The Rules of Evidence (1802) 253-254 and R v Sparkes cited by Garrow in arguing Du Barre v Livette (1791) 1 Peake 108, before Lord Kenyon; Normanshaw v Normanshaw and Measham (1893) 69 LT 468.
[71] [1881] UKLawRpCh 106; (1881) 17 Ch D 675, 681.
[72] Early authority against Butler v Moore (1802) referred to in L MacNally, The Rules of Evidence on Pleas of the Crown, London, 1802, 253; dicta in favour (for sacramental confession) Re Keller (1887) 22 LR Ir 158; Tannian v Synnott (1903) 37 Ir LT 275.
[73] Cook v Carroll [1945] IR 515.
[74] For examples: Broad v Pitt [1828] EngR 728; (1828) 3 C & P 518; R v Griffin (1853) 6 Cox CC 219; also R v Hay [1860] EngR 187; (1860) 2 F & F 4 where a Roman Catholic priest had handed a stolen watch to the police and was asked at the trial from whom he had received the watch. He was held in contempt of court for refusing to answer this question, although he was told that he was not asked to disclose anything that a penitent may have said to him in the confessional. Hill J gave no reasons for his statement nor did he purport to rely on any authority.
[75] GL Peiris, ‘Medical Professional Privilege in Commonwealth Law’ (1984) 33 ICLQ 301, 308.
[76] Evidence Act 1958 (Vic) s 28(1);Evidence Act 1910 (Tas) s 96(1); Evidence Act (NT) s 12(1), (3).
[77] The Victorian provision has the same form of words as when it was first enacted in the Law of Evidence Consolidation Act 1857 as part of s 18, which has as its origin a New York Statute of 1828. The Victorian Hansard does not reveal any reasons advanced for this section in the debates on the 1857 legislation. There are no reported cases applying the provision.
[78] [1954] TASStRp 15; [1954] Tas SR 47.
[79] His Honour had referred to Wigmore who cited the above cases and others relating to ‘confessions’ and concluded that there was no privilege at common law—Wigmore on Evidence, para 2394-6.
[80] [1954] TASStRp 15; [1954] Tas SR 47, 48.
[81] (1846) 15 M & W 169 discussing the case of R v Hardy (1794) 24 St Tr 199.
[82] R v Hardy (1794) 24 Tr 199; D Pearce, ‘Of Ministers, Referees, and Informers—Evidence Inadmissible in the Public Interest’ (1980) 54 ALJ 127, 134.
[83] Marks v Beyfus [1890] UKLawRpKQB 125; (1890) 25 QBD 494, 498 (Lord Esher MR); R v Lewes Justices; Ex parte Secretary of State for Home Department [1973] AC 388, 407-8.
[84] In Hennessy v Wright [1888] UKLawRpKQB 117; (1888) 21 QBD 509, 519, Wills J spoke solely in terms of the duty of the judge to direct a police officer not to answer a question directed toward ascertaining where that police officer obtained his information in respect of an offence.
[85] The most recent and extensive treatment is that in R v Lewes Justices: Ex Parte Secretary of State for Department [1973] AC 388.
[86] This certainly is the position in the United States: Bowman Dairy Co v United States [1951] USSC 47; 341 US 214, 221 (1951). See also the American Law Institute, Model Code of Evidence, Philadelphia, 1942, rule 230 and the comment thereto.
[87] [1942] 2 KB 253, 257.
[88] See JA Gobbo, D Byrne & JD Heydon, Cross on Evidence. 2nd Aust edn, Butterworths, Sydney, 1979, para 11.10; Adams v Batley [1887] UKLawRpKQB 50; (1887) 18 QBD 625. Proceedings for penalties as opposed to compensation are now virtually obsolete, save in some Trade Practices matters; see the pecuniary penalties under Pt IV of the Trade Practices Act 1974 (Cth).
[89] The type of forfeiture to which the privilege applied was forfeiture of an estate or interest in land but it also included deprivation from a public office. See LH Hoffman, The South African Law of Evidence, Butterworths, Durban, 1970, 180; Pye v Butterfield (1864) 13 WR 178; J McNaughton (rev) Wigmore on Evidence. Little Brown & Co, Boston, 1961, vol 8, para 2256.
[90] Blunt v Park Lane Hotel Ltd [1942] 2 KB 253, 257 (Lord Goddard). See also Redfern v Redfern [1890] UKLawRpPro 60; [1891] P 139, 147: ‘It is one of the inveterate principles of English law that a party cannot be compelled to discover that which, if answered, would tend to subject him to any punishment, penalty, forfeiture, or ecclesiastical censure’. (Bowen LJ (Court of Appeal). See s 234 of the Criminal Procedure Act 1955 (SA) and the Witnesses Act 1806 (UK).
[91] Smith v Read [1736] EngR 59; (1737) 1 Atk 526; Triplex Safety Glass Co v Lancegaye Safety Glass Ltd [1939] 2 KB 395.
[92] Nelme v Newton [1829] EngR 150; (1819) 2 Y & J 186; Spokes v Grosvenor Hotel [1897] UKLawRpKQB 99; [1897] 2 QB 124; Evans v Staunton [1958] Qd R 96; Commissioner for Railways v Small [1938] NSWStRp 29; [1938] 38 SR (NSW) 564 (Jordan CJ); MJ Young & G Evans, A National Crimes Commission? Policy Discussion Paper, Canberra, 1983, 21, para 7.1-7.6. An objection can only be taken to the production of the documents alleged to have that effect, and not generally to the order for discovery: Spokes v Grosvenor Hotel [1897] UKLawRpKQB 99; [1897] 2 QB 124.
[93] Blunt v Park Lane Hotel Ltd [1942] 2 KB 253.
[94] ibid but cf Redfern v Redfern [1890] UKLawRpPro 60; [1891] P 139, 147; Pyneboard v TPC (1983) 45 ALR 609, 613.
[95] Cross relates this aspect solely to adultery: Cross on Evidence, para 11.12. See also JH Buzzard, R May & MN Howard, Phipson on Evidence, 12th edn, Sweet & Maxwell, London, 1976, para 616.
[96] (1983) 5 ATPR 40-341, 44, 108.
[97] Blunt v Park Lane Hotel Ltd [1942] 2 KB 253; also Pyneboard v TPC (1983) 45 ALR 609, 621 on the related issue of ecclesiastical censure.
[98] See The Witnesses Act 1806 (UK). In the case of crimes, the protection has been accorded to questions as to the witness’ presence at a duel (R v Handcock (1841) Ir Cir Rep 329); bigamy (Harvey v Lovekin [1884] UKLawRpPro 55; (1884) 10 PD 122); libel (Phipson on Evidence, para 613); maintenance (Alabaster v Harness (1894) 70 LT 375); and in the case of penalties, as to pound-breach (Jones v Jones [1889] UKLawRpKQB 15; (1889) 22 QBD 425); and fraudulent removal of goods by a tenant (Hobbs v Hudson [1890] UKLawRpKQB 109; (1892) 25 QBD 232).
[99] See A-G (Victoria) v Riach [1978] VicRp 32; [1978] VR 301; Martin v Treacher (1886) 16 QBD 507.
[100] See also the Witnesses Act 1806 (UK); Evidence Act 1958 (Vic) s 29; Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130.
[101] [1901] UKLawRpKQB 197; [1902] 1 KB 98, 102, 105. Williams LJ and Romer LJ expressed obiter to the effect that, on the hearing of a bankruptcy petition the petitioning creditor is entitled to call the debtor himself as a witness in support of the petition, on the ground that because a debtor can petition for an adjudication of bankruptcy against himself, bankruptcy proceedings could no longer be treated as being of a quasi-criminal nature.
[102] Victoria: Crimes Act 1958 s 399(e); South Australia: Evidence Act 1929 s 18(vi); Western Australia: Evidence Act 1906 s 80)(e); Tasmania: Evidence Act 1910 s 85(i)(e); Queensland: Evidence Act 1977 s 15. New South Wales does not appear to have a comparable provision.
[103] Adams v Lloyd [1858] EngR 835; (1858) 3 H & N 351, 362 (Pollock CB).
[104] Ex parte Reynolds [1882] UKLawRpCh 71; (1882) 20 Ch D 294; R v Boyes [1861] EngR 626; (1861) 1 B & S 311; Triplex Safety Glass Co v Lancegaye Safety Glass Ltd [1939] 2 KB 395, 404.
[105] See Cross on Evidence, para 11.9; R v Slaney [1832] EngR 452; (1832) 5 C & P 213.
[106] R v Sloggett [1856] EngR 44; (1856) Dears 656; 169 ER 885.
[107] ibid.
[108] [1873] EngR 4; (1873) LR 4 PC 599.
[109] Wigmore on Evidence, para 2269, citing Attorney-General v Radloff [1854] EngR 636; (1854) 10 Exch 84, 88 (Parke B)—’I think that a witness ought to make the objection himself’. See also Dunne v J Connelly Ltd [1963] AR (NSW) 873.
[112] Dicta suggesting it may do so—R v All Saints, Worcester (1817) 7 M & S 194, 201. See also Evidence Ordinance 1971 (ACT) s 570).
[113] See R v Minihane (1921) 16 Cr App R 38; Mitton v Curl [1922] SAStRp 34; [1922] SASR 282 (Angas Parsons J). See also King of the Two Sicilies v Willcox [1851] EngR 134; (1851) 1 Sim NS 301, 329 (Lord Cranworth VC)—‘The privilege is confined to penal consequences likely to be occasioned to the party himself: nemo tenetur seipsum prodere: but there is no privilege against disclosing matter within the knowledge of the patty, merely because it might subject other persons to punishment’.
[114] The possibility may remain that a corporation may empower a director, for example, to testify as its agent and that he may be able to claim the privilege.
[115] As a ground for refusing to answer interrogatories, see Triplex Safety Glass Co v Lancegaye Safety Glass Ltd [1939] 2 KB 395. In this case Lord Justice Du Parcq, who delivered the judgment of the court, agreed with the Supreme Court of Alberta in Webster v Solloway, Mills & Co [1931] 1 DLR 831, 833, 834 that ‘on principle one cannot see any reasonable ground for the support of [the] view that this claim of privilege should be limited to natural persons’.
[116] [1968] USSC 135; 392 US 286 (1968).
[117] id, 288.
[118] Pyneboard v TPC (1983) 45 ALR 609, 622; Rochfort v TPC [1982] HCA 66; (1983) 57 ALJR 31.
[119] His Honour cited a number of United States cases as support for his proposition, including Campbell Painting Corp v Reid [1968] USSC 135; 392 US 286 (1968) and United States v White [1944] USSC 109; 322 US 694, 701 (1944).
[120] Citing United States v White [1944] USSC 109; 322 US 694 (1944) and Wilson v United States [1911] USSC 98; 221 US 361, 384-5 (1911).
[121] See Triplex Safety Glass Co v Lancegaye Safety Glass Ltd [1939] 2 KB 395; Rio Tinto Zinc Corporation v Westinghouse Electric Corp [1978] AC 547.
[122] See Rochfort v TPC [1982] HCA 66; (1983) 57 ALJR 31, 36.
[123] East India Co v Campbell [1749] EngR 83; (1749) 1 Ves Sen 246, 247.
[124] [1851] EngR 134; (1851) 1 Sim NS 301. His Lordship stated that he could not find any authority on the point.
[125] [1867] UKLawRpCh 113; (1868) LR 3 Ch App 79.
[126] id, 85. This was approved in Murphy v Waterfront Commission of New York Harbour [1964] USSC 136; 378 US 52 (1963) where it was held that one jurisdiction in a Federal system may not, in the absence of an immunity provision, compel a witness to give evidence which might incriminate him under the rules of another jurisdiction. See also Hoffmann, 181.
[127] See Cross on Evidence, para 11.16.
[129] Section 14(1) of the Civil Evidence Act 1968 (UK) reads:
the right of a person in any legal proceedings other than criminal proceedings to refuse to answer any question of produce any document or thing if to do so would tend to expose that person to proceedings for an offence or for the recovery of a penalty –
(a) shall apply only as regards criminal offences under the law of any part of the United Kingdom and penalties provided for by such law ...
[130] cf s 38 of the Queensland Evidence Act 1977.
[131] See Cross on Evidence, para 11.16.
[132] ibid. Cross comments that, ‘in the circumstances it is impossible to say whether in truly domestic litigation a witness can object to answering questions because he might be incriminated under foreign law if he were to do so ... There must clearly be a reasonable probability that criminal proceedings would be taken abroad, which means that there must be some likelihood that the witness would go, or be extradited to the country whose law was in question. Furthermore, there may be a difference between cases in which the foreign law is admitted or easily proved and those in which the criminating tendency of the question could only be ascertained by an elaborate consideration of expert evidence on the subject.’
[133] See s 30 concerning boards and commissions below.
[134] Sections 11-3 and 24 of the Evidence Act 1906 (WA).
[135] Sections 87-9 and 101 of the Evidence Act 1910 (Tas).
[136] For discussion, see below para 221-5 (App C).
[137] Information recently received by the Commission indicates that in the ACT a certificate is applied for roughly once every fortnight and at present generally is granted. Initially there was a disinclination to do so. It is difficult to imagine that the courts will hold that it is not expedient for the ends of justice that the certificate be issued and the giving of the evidence compelled where the evidence may show the witness guilty and the accused innocent. See Woods v Smith [1976] WAR 13.
[138] R v Bernasconi [1915] HCA 13; (1915) 19 CLR 629, 635.
[139] Lamshed v Lake [1958] HCA 14; (1958) 99 CLR 132: Frost v Stevenson [1937] HCA 41; (1937) 58 CLR 528, 592: Airlines of New South Wales Pty Ltd v New South Wales (No 2) [1965] HCA 3; (1965) 113 CLR 54, 79: Sprott v Hermes [1965] HCA 66; (1965) 114 CLR 226, 246: Capital TV and Appliances Pty Ltd v Falconer [1971] HCA 10; (1971) 125 CLR 591. For an instance where the High Court assumed, without argument, an ordinance of a Territory made a Commonwealth Act to be ‘a law of the Commonwealth’: see Pioneer Express Pty Ltd v Hotchkiss [1958] HCA 45; (1958) 101 CLR 536, 552-3, 560-1, 565. See also Devine v R [1967] HCA 35; (1967) 119 CLR 506, 513.
[140] Section 118—‘full faith and credit has be given, throughout the Commonwealth, to the laws, the public Acts and records, and the judicial proceedings of every State’.
[141] Section 18—‘all public acts, records and judicial proceedings of any State or Territory, if proved or authenticated as required by the Act, shall have such full faith and credit given to them in every court and public office as they have by law or usage in the courts and public officers of the State or Territory from whence they are taken’.
[142] PH Lane, The Australian Federal System, 2nd edn, Law Book Co, Sydney, 1979, 915.
[143] [1933] HCA 31; (1933) 48 CLR 565, 577, 587-8.
[144] ibid, 577 (Rich and Dixon JJ), 587-8 (Evatt J).
[145] [1965] HCA 61; (1965) 114 CLR 20.
[146] See also Finlayson v Permanent Trustee: (Canberra) Ltd [1968] HCA 85; (1969) 43 ALJR 42, 44.
[147] Lumb and Ryan in RD Lumb & KW Ryan, The Constitution of the Commonwealth of Australia Annotated, 3rd edn, Butterworths, Sydney, 1981, para 328, interpret the words of Windeyer J in Anderson v Eric Anderson Radio and TV Pty Ltd [1965] HCA 61; (1965) 114 CLR 20, 46 as expressing the view that section 18 does not have a substantive operation. See also Varawa v Howard Smith Co Ltd [1911] HCA 46; (1911) 13 CLR 35, 69; The Will of Lambe [1972] 2 NSWLR 273; cf Hodge v Club Motor Insurance Agency Pty Ltd (1974) 2 ALR 421, 435). They comment, ‘on this basis it would appear that if the statutes are under consideration in these cases where expressed to have extra-territorial effect, s 118 would not support them, if under the constitutional powers of the states which enacted them, they could not have such operations’. See also D Kelly, Localising Rules in the Conflict of Laws, Woodley Press, Adelaide, 1974, 100ff; Attorney-General’s Department, The Australian Constitution Annotated, AGPS, Canberra, 1980, 427ff; Harris v Harris [1946] VicLawRp 23; [1947] VLR 44, 45-6, 59.
[148] Other than proceedings for an offence arising out of falsity of the statement.
[149] Little authority on these provisions exists.
[150] There are also many provisions which abrogate the privilege in other situations—public examinations under the Companies Act 1981 (Cth) s 295(1)(c) and Bankruptcy Act 1966 (Cth) s 69(8); hearings by the Trade Practices Tribunal (Trade Practices Act 1974 (Cth) s 159); enquiries under the Aboriginal Land Rights (NT) Act 1976 (Cth) s 54A(3); and legislation re Enquiries and Commissions. In the context of Royal Commissions. see also Royal Commissions Amendment Act 1982 (Cth) s 6A; Royal Commissions Act 1968 (WA) s 20; Royal Commissions Act 1923 (NSW) s 17; Commissions of Enquiry Act 1954 (Qld) s 14(2); Royal Commissions Act 1917 (SA) s 16.
[151] Section 155(1) and (2) authorise the issue of a notice in writing by a member of the Commission requiring a person:
(a) to furnish to the Commission, by writing signed by that person or, in the case of a body corporate, by a competent officer of the body corporate, within the time and in the manner specified in a notice, any such information;
(b) to produce to the Commission, or to a person specified in the notice acting on its behalf in accordance with the notice, any such documents; or
(c) to appear before the Commission at a time and place specified in the notice to give ... evidence ... and produce ... documents, where the Commission, the Chairman, or the Deputy Chairman has reason to believe that the person is capable of furnishing information, producing documents or giving evidence relating to a matter that constitutes, or may constitute, a contravention of the Act. Sub-sections (5) and (7) provide:
(5) A person shall not -
(a) refuse or fail to comply with a notice under this section to the extent that the person is capable of complying with it;
(b) in purport of compliance with such a notice, knowingly furnish information or give evidence that is false or misleading; or (c) obstruct or hinder an authorised officer acting in pursuance of sub-section (2).
(7) A person is not excused from furnishing information or producing or permitting the inspection of a document in pursuance of this section on the grounds that the information or document may tend to incriminate the person, but the answer by a person to any question asked in a notice under this section or the furnishing by a person of any information in pursuance of such a notice, or any document produced in pursuance of such a notice or made available to an authorised officer for inspection, is not admissible in evidence against the person–
(a) in the case of a person not being a body corporate—in any criminal proceedings other than proceedings under this section; or
(b) in the case of a body corporate—in any criminal proceedings other than proceedings under this Act.
[152] [1979] FCA 15; (1979) 2 ATPR 40-107; (1979) 36 FLR 450.
[153] id, ATPR 18, 083; FLR 454.
[154] id, ATPR 18, 094; FLR 469-70.
[155] id, ATPR 18, 097-8; FLR 474-5.
[156] (1983) 5 ATPR 40-341, 44, 102.
[157] See Deane J in Refrigerated Express Lines A/asia Pty Ltd v Australian Meat and Livestock Corp (1979) ATPR 40-137; (1979) 42 FLR 204.
[158] (1983) 5 ATPR 40-341, 44, 106.
[159] id, 44, 107.
[160] See eg, Sahari and Sahari [1976] FamCA 59; (1976) FLC 90-086.
[161] In the pre-trial phase, parties are not obliged to disclose their ‘evidence’, the identities of witnesses or to produce documents relating solely to their own case.
[162] For discussion of the development of these privileges from the chancery and common law protection of evidence, names of witnesses and documents relating only to the case of the party in possession of them, see NJ Williams, ‘Discovery of Civil Litigation Trial Preparation in Canada’ (1980) 58 Can Bar Rev, 1.
[163] See O’Reilly v Commissioners of The State Bank of Victoria [1983] HCA 47; (1983) 57 ALJR 130; the majority preferred the English decision of Parry-Jones v Law Society [1969] 1 Ch 1 (which was followed in Brayley v Wilton [1976] 2 NSWLR 495 (Bowen CJ) and Crowley v Murphy, [1981] FCA 31; (1981) 34 ALR 496) to the contrary New Zealand decision, Commissioner of Inland Revenue v West-Walker [1954] NZLR 191. In Commonwealth v Frost (1982) 61 FLR 378, Ellicott J held that the privilege was available in a Board of Accident Inquiry. O’Reilly’s case was recently overruled in Baker v Campbell (1983) 49 ALR 385, so that documents covered by legal professional privilege could not be properly made the subject of a search warrant.
[164] EJ Edwards, Cases on Evidence in Australia, 2nd edn, Law Book Co, Sydney, 1974, 430.
[165] It should be noted that in Morris v Edwards [1890] UKLawRpAC 26; (1890) 15 App Cas 309 (HL) the defendant in an action for recovery of land made an affidavit of documents stating inter alia that he objected to produce such documents on the ground that they related solely to his own title. It was held that the plaintiffs were not entitled to a further answer. For other authorities Viscount Simonds (ed) Halsbury’s Law of England, 3rd edn, Butterworths, London, 1955, vol 12, 59 and cases cited. See also a discussion of the history in Williams, 15-8.
[166] Habershon v Troby (1799) 3 Esp 38; Halsbury’s Laws of England, vol 12, 59-60 and vol 15. 422; cf, however, JT McNaughton (ed) Wigmore on Evidence. Little, Brown & Co, Boston, 1961, vol 8, para 2218.
[167] Williams, 15.
[168] id, 18 n 79. As to the form in which the claim should be made—see Attorney-General v Newcastle-upon-Tyne Corporation [1899] UKLawRpKQB 162; [1899] 2 QB 478, 485.
[169] JH Buzzard, R May & MN Howard, Phipson on Evidence. 12th edn, Sweet & Maxwell, London, 1976, para 608.
[170] [1976] HCA 63; (1976) 135 CLR 674.
[171] Law Reform Committee, England, Sixteenth Report (Privilege in Civil Proceedings) HMSO, London, 1967. Cmnd 3472, 9 (LRC 1967); Williams, 1; JA Gobbo, D Byrne & JD Heydon, Cross on Evidence, 2nd Aust edn, Butterworths, Sydney, 1979, para 11.25.
[172] Williams, 50-3; ‘the material which is to go into the lawyer’s (ie the client’s) brief or file for litigation’: Lord Simon of Glaisdale in Waugh v British Railways Board [1979] UKHL 2; [1980] AC 521, 536-7 and 531 (Lord Wilberforce). Thus, copies made by a solicitor of entries in registers and public records relevant to the issues in a pedigree suit were held privileged. See also Lyell v Kennedy [1884] UKLawRpCh 102; (1884) 27 Ch D 1; Wright v Vernon [1853] EngR 129; (1853) 1 Drew 344; 61 ER 483; Lord Hailsham (ed) Halsbury’s Laws of England, 4th edn, Butterworths, London, 1975, vol 13, para 71ff.
[173] Mayor and Corporation of Bristol v Cox [1884] UKLawRpCh 119; (1884) 26 Ch D 678.
[174] Hughes v Biddulph [1827] EngR 840; (1827) 4 Russ 190; 38 ER 777.
[175] LRC (England) 1967, 9; Trade Practices Commission v Sterling [1979] FCA 33; (1978) 36 FLR 244, 245, category (a) (Lockhart J). See generally NJ Williams (ed) Supreme Court Practice, Victoria, 2nd edn, Butterworths, Melbourne, 1973, para 31.14.9.
[176] [1833] EngR 333; (1833) 1 My & K 98, 103; [1833] EngR 333; 39 ER 618, 621 (Brougham LC); Lawrence v Campbell [1859] EngR 385; (1859) 4 Drew 485, 490; [1859] EngR 385; 62 ER 186, 188.
[177] Cross on Evidence, para 11.25; Anderson v Bank of British Columbia [1876] UKLawRpCh 145; [1876] 2 Ch D 644.
[178] Wheeler v Le Marchant [1881] UKLawRpCh 106; (1881) 17 Ch D 675, 682, 684; Jones v Great Central Railway Co [1909] UKLawRpAC 23; [1910] AC 4, 6; and the communication of a mother for her son, Hicks v The Trustees Executors and Agency Co Ltd [1900] VicLawRp 41; (1900) 25 VLR 668.
[179] Trade Practices Commission v Sterling [1979] FCA 33; (1978) 36 FLR 244, 245, category (e); LRC (England) 1967, 9; Williams (1973) para 31.14.14.
[180] Halsbury’s Laws of England, 3rd edn, 1955, 44. There is authority that the litigation may be out of the jurisdiction: Re Duncan [1968] P 306.
[181] LRC (England) 1967, para 20, relying on Wheeler v Le Marchant [1881] UKLawRpCh 106; (1881) 17 Ch D 675.
[182] DL Mills, Legal Professional Privilege, Research Paper No 3, Law Foundation of New South Wales, 1975. para 2.
[183] Trade Practices Commission v Sterling [1979] FCA 33; (1978) 36 FLR 244, 246, category (f).
[184] LRC (England) 1976, para 23; Phipson on Evidence, para 595; MI Aronson, NS Reaburn & MS Weinberg, Litigation: Evidence and Procedure, 3rd edn, Butterworths, Sydney, 1982, para 9.07 do not draw a distinction. The purpose of the communication was critical. If, for example, statements were obtained for the purpose of giving them to the legal adviser but ultimately this did not occur, the statements remained privileged: Southwark Water Co v Quick [1878] UKLawRpKQB 22; (1878) 3 QBD 315.
[185] [1913] UKLawRpKQB 128; [1913] 3 KB 850. 856-7.
[186] [1933] All ER Rep 896.
[187] [1959] 1 WLR 530, 533-4.
[188] D Pearce, ‘Legal Professional Privilege -Sole or Dominant Purpose’ [1979] ACL, DT 281. See also cases referred to in Cross on Evidence, para 11.27; Grant v Downs [1976] HCA 63; (1976) 135 CLR 674, 683-4; Seabrook v British Transport Commission [1959] 1 WLR 509; Waugh v British Railways Board [1979] UKHL 2; [1980] AC 521, 532, 535-7, 539-41; Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No 2) [1974] AC 405.
[190] id, 67 the Court cited with approval a dictum of Sugerman J in Toohey’s Ltd v Housing Commission of NSW (1952) 20 LGR 236, 245 that: ‘It is apparent from the cases which I have cited that it is not essential that the document should have been obtained by, or on the advice of, the solicitor’.
[191] ibid.
[192] The defendant Downs was the nominal defendant appointed to represent the government: Grant v Downs [1974] 2 NSWLR 401, 402.
[193] [1976] HCA 63; (1976) 135 CLR 674, 682.
[194] id, 683.
[195] id, 682.
[196] id, 685.
[197] id, 688.
[198] O’Reilly v Commissioners of The State Bank of Victoria [1983] HCA 47; (1983) 57 ALJR 130.
[199] The view is taken that the expression ‘communications’ is qualified by the words ‘submitted by client’. If it was intended to deal with lawyer/client communications as such, one would expect a different choice of words. In any event, the case concerned ‘communications and materials’ obtained by the client and submitted by the client to the legal adviser.
[200] [1976] HCA 63; (1976) 135 CLR 674, 689.
[201] National Employers’ Mutual General Insurance Association Ltd v Waind [1978] 1 NSWLR 372, 376 (Court of Appeal) cited with approval by Mason J in the High Court Appeal [1979] HCA 11; (1979) 141 CLR 648, 656.
[202] [1976] HCA 63; (1976) 135 CLR 674; Chief Justice Barwick adopted a less strict test—the ‘dominant’ purpose for which it was produced (676, 677); Jacobs J adopted the test—does the purpose of supplying the material to the legal adviser account for its existence (692, 694).
[203] Aronson, Reaburn, & Weinberg, para 9.18ff. See also Mason J (Gibbs CJ concurring) and Murphy J in O’Reilly v Commissioners of The State Bank of Victoria [1983] HCA 47; (1983) 57 ALJR 130.
[204] It extended protection to third party communications in a purely advice context.
[205] [1979] FCA 33; (1978) 36 FLR 244, 248.
[206] (1979) 39 FLR 372; and see AF Smith, ‘Erosion of the Doctrine of Privilege’ (1982) 56 LIJ 460, 464.
[207] id, 373; cf Minter v Priest [1930] AC 558 where a request to a solicitor to procure a loan was held to be privileged.
[208] Unreported, No 12, Tas SC (26 February 1982) (Cosgrove J).
[209] See eg, National Employers’ Mutual General Insurance Association Ltd v Waind [1979] HCA 11; (1979) 141 CLR 648, 654 (Mason J).
[210] Electrona Carbide Industries Pty Ltd v Tasmanian Government Insurance Office, unreported, No 12, Tas SC (26 February 1982) 5—the passages are: [1976] HCA 63; (1976) 135 CLR 674, 676, 677, 682. It is clear that Barwick CJ attempted to lay down principles of universal application. It is not clear that the majority did. His Honour also relied upon statements (id, 4) by Mason J in National Employers’ Mutual General Insurance Association Ltd v Waind [1979] HCA 11; (1979) 141 CLR 648, 654 where His Honour does not expressly state the test to be exhaustive, although it may be argued to be implicit.
[211] O’Reilly v Commissioners of The State Bank of Victoria [1983] HCA 47; (1983) 57 ALJR 130, 139. The privilege attaches to and is confined to communications solely for the purpose of advice or ‘for the purpose of use in existing or anticipated legislation’: Baker v Campbell (1983) 49 ALR 385, 408 (Murphy J), 429 (Deane J).
[212] [1983] HCA 47; (1983) 57 ALJR 130, 133 with Gibbs CJ concurring.
[213] Note also CA Sweeney, ‘The Beginning of the End for Legal Professional Privilege’ (1983) 57 ALJ 357.
[214] (1983) 49 ALR 385, 389.
[215] id, 439; he restricts the sole purpose test to documents submitted to the lawyer.
[216] T Pagone, ‘Legal Professional Privilege after Baker v Campbell’ (1984) 58 LIJ 124, 126, argues for a restricted view of the privilege.
[217] cf Brambles Holdings Ltd v Trade Practices Commission (1981) ATPR 40-221. In Electrona Carbide Industries Pty Ltd v Tas Government Insurance Office, unreported, No 12, Supreme Court of Tasmania (26 February 1982) Cosgrove J held that advice from lawyers to the GIO was privileged. Also Lockhart J in High Title (Ashburton) Pty Ltd v Bradmill Industries Ltd [1982] FCA 54; (1982) ATPR 40-290 said that Grant v Downs did not purport to cover them but ‘may apply’. It should be noted that ‘extracts of transactions ... processed through’ a solicitor’s trust account were said to be subject to the ‘sole purpose test’ in O’Reilly’s case.
[218] Kelly v Commonwealth (1980) 39 FLR 372; National Employers’ Mutual General Insurance Association Ltd v Waind [1979] HCA 11; (1979) 141 CLR 648. Grant v Downs [1976] HCA 63; (1976) 135 CLR 674, was not cited in Re Bell; Ex parte Lees [1980] HCA 26; (1980) 30 ALR 489, 499.
[219] O’Reilly v Commissioners of The State Bank of Victoria [1983] HCA 47; (1983) 57 ALJR 130, 137 (Mason J, Gibbs CJ concurring).
[220] [1979] HCA 11; (1979) 141 CLR 648, 654 (Mason J with Barwick CJ, Stephen, Jacobs and Aickin JJ concurring).
[221] They were reports by loss assessors and doctors to the insurance company.
[222] [1979] FCA 33; (1979) 36 FLR 244, 248.
[223] Mason J’s reasoning in O’Reilly v Commissioners of The State Bank of Victoria [1983] HCA 47; (1983) 57 ALJR 130, 137-9 suggests that the test should be applied to this category.
[224] National Employers’ Mutual General Insurance Association Ltd v Waind [1979] HCA 11; (1979) 141 CLR 648: Trade Practices Commission v Sterling [1979] FCA 33; (1979) 36 FLR 244; Irvin v Whitrod [1978] Qd R 137; Barton v Csidei [1979] 1 NSWLR 524, 533.
[225] Kelly v Commonwealth (1980) 39 FLR 372; Brambles Holdings Ltd v Trade Practices Commission (1981) ATPR 40-221; Electrona Carbide Industries Pty Ltd v Tasmanian Government Insurance Office, unreported, No 12, Supreme Court of Tasmania (26 February 1982).
[226] For application of the privilege in criminal proceedings see Frank Truman Export Ltd v Metropolitan Police Commissioner [1977] 3 All ER 431.
[227] Wilson v Rastall (1792) 4 Term Rep 753; [1792] EngR 3089; 100 ER 1283; Minter v Priest [1930] AC 558, 579.
[228] R v Craig [1975] 1 NZLR 597, 598 (Cooke J) and Beer v Ward [1821] EngR 306; (1821) Jac 77; 37 ER 779. See also Report of the New Zealand Torts and General Law Reform Committee, Professional Privilege in the Law of Evidence (1977) 13.
[230] id, 205-6; in Reeves Bros Inc v Lewis Reed [1971] RPC 355 a claim by a licensee of a patent to the privilege held by the licensor was rejected.
[231] id, 201.
[232] It does—Montgomery v McPherson (1895) 16 NSWR Eq 81; it does not—Allen v City Bank of Sydney [1902] NSWStRp 80; (1902) 2 SR NSW Eq 143. Great Atlantic Insurance Co v Home Insurance Co [1981] 1 WLR 529 would appear to support the latter view.
[233] Williams (1973) para 31.14.33; Roberts v Oppenheim [1884] UKLawRpCh 112; [1884] 26 Ch D 724; Buttes Gas and Oil Co v Hammer (No 3) [1980] 3 All ER 475, 490.
[234] Thomason v The Council of the Municipality of Campbelltown [1939] NSWStRp 10; (1939) 39 SR (NSW) 347, 357-8 (Jordan CJ).
[235] Re Stanhill Consolidated Ltd [1967] VicRp 92; [1967] VR 749, 750.
[236] id, 752. But the occasion remains privileged and may give protection in defamation proceedings.
[237] Buttes Gas and Oil Co v Hammer (No 3) [1980] 3 All ER 475, 490 (Donaldson LJ).
[238] Warner v Women’s Hospital [1954] VicLawRp 14; [1954] VLR 410, 421.
[239] GS Bower, The Law Relating to Estoppel by Representation, 3rd edn, Butterworths, London, 1977.
[240] Brown v R (1911] VLR 159, 160-1; Minter v Priest [1930] AC 558; Williams (1973) para 31.14.9; Ex parte Campbell: Re Cathcart [1870] UKLawRpCh 79; (1870) 5 Ch App 703, 705; Bursill v Tanner (1885) 16 QBD 1; Re Bell: Ex parte Lees [1980] HCA 26; (1980) 30 ALR 489, 493 (Gibbs CJ), 501 (Stephen J), 506 (Wilson J); C Morrick, ‘Professional Privilege: The Client’s Identity’ (1980) 124 Sol J 303.
[241] [1887] NSWLawRp 28; (1887) 8 LR (NSW) 132.
[242] [1976] VicRp 56; [1976] VR 547.
[243] id, 549; His Honour, however, could find no intention that the conversation was meant to be confidential. This approach would be consistent with that taken in R v Uljee [1982] 1 NZLR 561. It is, however, inconsistent with Calcraft v Guest [1898] UKLawRpKQB 46; [1898] 1 QB 759, and Bell v David Jones Ltd [1948] NSWStRp 77; (1948) 49 SR (NSW) 223 which do not appear to have been cited in R v Braham & Mason [1976] VicRp 56; [1976] VR 547.
[244] Watson v Cammell Laird & Co (Shipbuilders & Engineers) Ltd [1959] 2 All ER 757; The Palermo [1883] UKLawRpPro 58; (1883) 9 PD 6.
[245] Kennedy v Lyell [1883] UKLawRpCh 103; (1883) 23 Ch D 387. The decision was justified on the basis that the notes and materials, being selective, would give an insight into the way the party was approaching the case.
[246] Chadwick v Bowman (1886) 16 QBD 561.
[247] Shaw v David Syme & Co [1912] ArgusLawRp 93; [1912] VLR 336.
[248] In Buttes Gas & Oil Co v Hammer (No 3) [1980] 3 All ER 475, 484 Lord Denning expressed the view that those English authorities ‘are suspect’.
[249] (1898] 1 QB 759. In R v Uljee [1982] 1 NZLR 561, 563, 573-4 criticism is made of the reasoning in Calcraft v Guest—eg, the reliance upon Lloyd v Mostyn [1842] EngR 964; (1842) 10 M & W 478; 152 ER 558, which related to copies of non-privileged documents; see also J Phillips, Submission (20 August 1983) 18ff.
[250] [1913] UKLawRpCh 80; [1913] 2 Ch 469.
[251] id, 473.
[252] ibid.
[253] JD Heydon, ‘Legal Professional Privilege and Third Parties’ (1974) 37 Modern Law Rev 601, 603.
[254] C Tapper, ‘Privilege and Confidence’ (1972) 35 Modern Law Rev 83, 86: P Matthews, ‘Breach of Confidence and Legal Privilege’ (1981) 1 Legal Studies 77, 85 shares this view. This also appears to be the view of Swinfen Eady LJ in Ashburton v Pape [1913] UKLawRpCh 80; [1913] 2 Ch 469, 477.
[255] Matthews, 88. Note also the view Swinfen Eady LJ in Ashburton v Pape [1913] UKLawRpCh 80; [1913] 2 Ch 469, 476, 477.
[256] Baker v Campbell (1983) 57 ALJR 749, 754. Brennan J (772-3) referred to the issue but declined to comment while stating that Calcraft v Guest [1898] UKLawRpKQB 46; [1898] 1 QB 759 should not be followed. Deane J (774) and Dawson J (781) note the issue.
[258] id, 690.
[259] id, 691. For further discussion of this case, see Matthews, 89-93.
[260] ITC Film Distributors v Video Exchange Ltd [1982] 2 All ER 241.
[261] id, 246. In doing so he was influenced by the probability that the obtaining of the document amounted to a contempt of court: Riddick v Thames Board Mills Ltd [1977] 1 QB 881 and D v National Society for the Prevention of Cruelty to Children [1977] UKHL 1; [1978] AC 171, 233. Reference was made to Calcraft v Guest [1898] UKLawRpKQB 46; [1898] 1 QB 759 and Ashburton v Pape [1913] UKLawRpCh 80; [1913] 2 Ch 469 but not to Butter v Board of Trade [1971] Ch 680. In the end result, however, because it had been necessary to use the documents in evidence, he was not prepared to forbid their use in the action.
[262] [1948] NSWStRp 77; (1948) 49 SR (NSW) 223, 227-8. His Honour cited as authority for these propositions Lloyd v Mostyn [1842] EngR 964; (1842) 10 M & W 478; Calcraft v Guest [1898] UKLawRpKQB 46; [1898] 1 QB 759 and Ashburton v Pape [1913] UKLawRpCh 80; [1913] 2 Ch 469. In Warner v Women’s Hospital [1954] VicLawRp 14; [1954] VLR 410, 421 an argument was put by the defendant that the plaintiff be ordered to return copies made of documents which the defendant claimed were privileged. The argument was rejected. Ashburton v Pape was not referred to. The case differed in that the plaintiff obtained access to the original documents lawfully.
[263] [1898] UKLawRpKQB 46; [1898] 1 QB 759, 761.
[264] Bullivant v A-G for Victoria [1901] UKLawRpAC 15; [1901] AC 196.
[265] Minet v Morgan [1873] UKLawRpCh 21; (1873) 8 Ch App 361 (correspondence); Cresent Farm Sports v Sterling Offices [1972] Ch 553 (instructions to counsel and opinion obtained by sub-purchasers and forwarded to sub-sub-purchaser); Calcraft v Guest (1898] 1 QB 759 (documents prepared for defence of a previous action relating to the same fishery rights).
[266] [1955] 2 QB 195, 203.
[267] (1955) 498.
[268] Chadwick v Bowman (1886) 16 QBD 561.
[269] [1977] 3 All ER 431, 439.
[272] Phipson on Evidence, para 592; R v Cox and Railton (1884) 14 QBD 153; Varawa v Howard Smith & Co Ltd [1910] HCA 11; (1910) 10 CLR 382; Sut v Nominal Defendant [1968] 2 NSWR 78; LT & KT Conlon v Lensworth Interstate (Vic) Pty Ltd [1970] VicRp 36; (1970) VR 293, 295.
[273] Plumb v Monck (1974) 4 ALR 405 (SC NT); Butter v Board of Trade [1970] 3 All ER 593, 598; O’Rourke v Darbyshire [1920] AC 581, 604.
[274] [1970] VicRp 36; [1970] VR 293.
[275] [1980] HCA 26; (1980) 30 ALR 489.
[276] A Mr Hulett was instructed in them.
[277] [1980] HCA 26; (1980) 30 ALR 489, 493: ‘I doubt whether the present case comes within that exception. The wife did not communicate her address to Mr Lees for any illegal or improper purpose ...’
[278] id. 493-4; Burton v Earl of Darnley (1869) LR 8 Eq 576 n; Ramsbotham v Senior [1869] UKLawRpEq 171; (1869) LR 8 Eq 575.
[279] ibid.
[280] id, 504. Murphy J also relied upon the wardship cases.
[281] id, 498-9.
[282] id, 500.
[285] ibid.
[286] [1979] HCA 11; (1979) 53 ALJR 355, 356. See Jones v Great Central Railway Co [1909] UKLawRpAC 23; [1910] AC 4; In re Holloway [1887] UKLawRpPro 20; (1887) 12 PD 167; Wheeler v Le Marchant [1881] UKLawRpCh 106; (1881) 17 Ch D 675, 681; Kyshe v Holt, Childs and Brotherton 118881 WN 128: Anderson v Bank of British Columbia (1876) 2 Ch 644, 658-9; Halsbury’s Laws of England, 4th edn, vol 13, 68.
[287] Jones v Great Central Railway Co [1909] UKLawRpAC 23; [1910] AC 4
[288] Kyshe v Holt, Childs and Brotherton [1888] WN 128 (Smith J) relying on passages in the judgment of Mellish LJ in Anderson v Bank of British Columbia (1876) 2 Ch 644; Cave J disagreed but expressed no final view.
[289] [1884] UKLawRpCh 119; (1884) 26 Ch D 678, 682.
[290] [1976] 1 NSWLR 651 (CA).
[291] [1975] 1 NSWLR 567: principally statements of witnesses.
[292] id, 567, citing Cataldi v Commissioner of Government Transport [1970] 1 NSWLR 65.
[293] [1976] 1 NSWLR 651, 644; Ex parte Dustings: Re Jackson (1967) 87 WN (Pt 1) (NSW) 98.
[294] id, 665-6. The issue arose because it had been held that s 12 Evidence Act 1898 and s 26 Justices Act 1902 entitled the magistrate, in the circumstances of the case, to direct production of documents of the prosecution brief.
[295] [1978] HCA 22; (1978) 141 CLR 54.
[296] See below para 260-1 (App C).
[297] s 14 Evidence Act 1977 (Qld).
[298] s 95(3) Evidence Ordinance 1971 (ACT).
[299] Patents Act 1952 (Cth) s 134(1A). It has been held that the section confers privilege upon communications between a patent authority and client with respect to trade marks only in limited circumstances: Riker Laboratories Australia Pty Ltd v Westwood Pharmaceuticals (1983) 1 ICP 343.
[300] Evidence Act 1906 (WA) s 32A.
[301] See Supreme Court Rules (WA) O 36A; Supreme Court Rules (Tas) O 40 r 5.
[302] Supreme Court Rules (SA) O 31 r 27-30; the rules were held to be valid in Cleland v Boynes (1978) 19 SASR 464.
[303] Supreme Court Rules (NSW), Pt 36 r 13A.
[304] See for example, Court of Petty Sessions (Civil Jurisdiction) Ordinance 1982 (ACT) s 198; Practice Direction No 5 of 1981 (ACT Supreme Court) in (1981) 38 ACTR 20-2.
[305] See JB Matthews & GB Spear, Taylor on Evidence, 11th edn, Sweet & Maxwell, London, 1920, para 1379; Hennessy v Broken Hill Pty Co Ltd [1926] HCA 32; (1926) 38 CLR 342; Zanatta v McCleary [1976] 1 NSWLR 230; Lord Hailsham (ed) Halsbury’s Laws of England, 4th edn, Butterworths, London, 1976, vol 17, para 232.
[306] See Ward v Shell-Mex and BP Ltd [1952] 1 KB 280; Halsbury’s Laws of England, para 236; Zanatta v McCleary [1976] 1 NSWLR 230, 237; McKinley v McKinley [1960] 1 All ER 476, 479; R v Harvey (1858) 8 Cox CC 99; JH Buzzard, R May & MN Howard, Phipson on Evidence, 12th edn, Sweet & Maxwell, London, 1976, para 1492; New South Wales Law Reform Commission, Discussion Paper, Competence and Compellability (1980) 65 (NSWLRC DP).
[307] Zanatta v McCleary [1976] 1 NSWLR 230, 234, 239.
[308] Note Samuel J’s criticism of the distinction between superior and inferior judges—id, 237.
[309] See Throgmorton’s Case (1554) 1 State Tr 869 when eight members of the jury were fined and imprisoned for having acquitted Nicholas Throgmorton of high treason. The immunity of jurors in actions brought by persons injured by a wrongful verdict was established in Floyd v Barker [1572] EngR 142; (1607) 12 Co Rep 23.
[311] Halsbury’s Laws of England. para 236; see Boston v WS Bagshaw and Sons [1967] 2 All ER 87, NSWLRC DP, 74, n 165; Shoukatallie v R [1961] 3 WLR 1021, 1029—Lord Denning, Lord Morris of Borth-y-Gest, the Rt Hon LMD De Salva.
[313] Their Lordships expressly refrained from deciding whether the publication by the press of the reasons of a particular juryman for arriving at his decision was or was not a contempt of court. This was interpreted by E Campbell, ‘The Secret Chamber of the Law: Some Comments on Civil Jury Trial’ (1962) 36 ALJ 119, 124, to be ‘a vague suggestion by the Court of Appeals’ that the ‘juror who discloses and the newspaper which publishes his revelations might be guilty of contempt of court’.
[314] Cornish v Daykin (1845) 5 LTOS 130.
[315] NSWLRC DP, 73. In R v Thompson [1962] 1 All ER 65 the Court of Criminal Appeal held that it had no right to inquire into allegations that the foreman of the jury had produced a list of the previous convictions of an accused in the jury room, thereby changing the views of a number of jurors, who had previously been disposed to acquit the accused.
[316] The US approach allows proof of operative bias of any kind on the part of the juror: Nebraska Press Association v Stuart [1976] USSC 158; 427 US 539, 558 (1975).
[317] Duke of Buccleugh v Metropolitan Board of Works [1872] UKLawRpHL 9; (1872) LR 5 HL 418; Hennessy v Broken Hill Pty Co Ltd [1926] HCA 32; (1926) 38 CLR 342.
[318] NSWLRC DP 71.
[319] See particularly Robinson v South Australia (No 2) [1931] AC 704; see also Conway v Rimmer [1968] UKHL 2; [1968] AC 910; Duncan v Cammell, Laird& Co [1942] UKHL 3; [1942] AC 624; Ellis v Home Office [1953] 2 QB 135, 144; Ex parte Brown; Re Tunstall (1967) 67 SR (NSW); Ex parte Attorney-General (NSW); Re Cook [1967] 2 NSWR 689; R v Snider [1954] 4 DLR 483; Corbett v Social Security Commission [1962] NZLR 878; Bruce v Waldron [1963] VicRp 1; [1963] VR 3; R v Lewes Justices, Ex parte Secretary of State for Home Department [1973] AC 388, 412; Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No 2) [1974] AC 405; Lanyon Pty Ltd v The Commonwealth (1974) 129 CLR 650; Australian National Airlines Commission v The Commonwealth [1975] HCA 33; (1975) 132 CLR 582; Attorney-General v Jonathon Cape Ltd [1976] QB 752; Norwich Pharmacal Co v Customs and Excise Commissioners [1973] UKHL 6; [1974] AC 133; Breen v Minister Administering the Environmental Assessment Act 1979 (1981) 48 LGRA 275.
[320] [1978] HCA 43; (1979) 53 ALJR 11.
[321] This expression has been criticised by a number of courts as misleading. See, for example, R v Lewes Justices. Ex parte Secretary of State for Home Department [1973] AC 388, 400, 406-7, 412.
[322] Sankey v Whitlam [1978] HCA 43; (1978) 53 ALJR 11, 21.
[323] His Honour explicitly linked the withholding of oral and documentary evidence.
[324] Conway v Rimmer [1968] UKHL 2; [1968] AC 910, 952, 973, 979, 987, 993; R v Lewes Justices, Ex parte Secretary of State for Home Department [1973] AC 388, 412; Australian National Airlines Commission v The Commonwealth [1975] HCA 33; (1975) 132 CLR 582, 591.
[325] Lanyon Pty Ltd v The Commonwealth (1974) 129 CLR 650.
[326] See In re Grosvenor Hotel, London (No 2) [1965] Ch 1210.
[327] Conway v Rimmer [1968] UKHL 2; [1968] AC 910, 952.
[328] [1978] HCA 43; (1979) 53 ALJR 11, 23. In Breen v Minister Administering the Environmental Assessment Act 1979 (1981) 48 LGRA 275, 284 McClelland CJ has held, though, that Sankey v Whitlam should not be interpreted as having ‘swept aside’ the ‘class concept’.
[329] Aicken J said that he was in complete agreement with Stephen J save on two minor points not apposite for present treatment.
[330] Sankey v Whitlam (1979) 33 ALJR 11, 28.
[331] [1968] UKHL 2; [1968] AC 910, 952.
[332] Jacobs J considered that production should not be ordered until the court had determined whether the allegations of common law conspiracy disclosed a criminal offence.
[333] As to the Loan Council documents, Sankey sought disclosure only of those parts of the documents which showed the amount which the Commonwealth was authorised by the Loan Council to borrow in the year in question. The Chief Justice, accordingly, felt that the court could inspect the documents to see whether it was practicable to make this very limited exception.
[334] See the case note by S Campbell (1979) 53 ALJ 212. For subsequent applications see Barton v Csidei [1979] ACLR 40, 519, 32, 330. See the privilege of accountants and other professionals and company investigations in R Baxt, ‘The Privilege of Accountants and other Professionals and Company Investigations’, The Chartered Accountant in Australia, June 1981, 47-8; Trade Practices Commission v Queensland Aggregates Pty Ltd (1981) ATPR 40-233; Burmah Oil Co Ltd v Bank of England [1979] UKHL 4; [1980] AC 1090; Neilson v Laugharne [1981] 2 WLR 537. See most recently the approach of the New Zealand Court of Appeal in Environmental Defence Society v South Pacific Aluminium Ltd [1981] NZCA 31; [1981] 1 NZLR 153; I Eagles, ‘Cabinet Secrets in New Zealand’ (1982) 41 Cambridge LJ 11; London and County Securities Ltd v Nicholson [1980] 1 WLR 948; Gaskin v Liverpool City Council [1980] 1 WLR 1549, 1553; D v National Society for the Prevention of Cruelty to Children [1977] UKHL 1; [1978] AC 171, 191, 227. See also Alister v R [1984] HCA 85; (1984) 58 ALJR 97 where the High Court recently considered the question of whether a court should order production of documents to it for judicial inspection to determine whether they existed and to assist it in balancing the competing public interests.
[335] [1977] UKHL 1; [1978] AC 171.
[336] Under RSC Ord 24, r 2(1).
[337] [1977] UKHL 1; [1978] AC 171, 230.
[338] id, 240.
[339] [1977] UKHL 1; [1978] AC 171, 230.
[340] (1981) ATPR 40-223.
[341] s 60(1); for the purposes of the Act a ‘communication’ includes a reference to a statement or record that is not communicated to any person.
[342] See Sankey v Whitlam [1978] HCA 43; (1979) 53 ALJR 11, 22 (Gibbs ACJ) and the cases there cited; see D Pearce, ‘The Courts and Government Information’ (1976) 50 ALJ 513.
[343] [1942] UKHL 3; [1942] AC 624
[344] See Senate Standing Committee on Constitutional and Legal Affairs, Report on the Freedom of Information Bill 1978, AGPS, Canberra, 1979, 59-60.
[345] See Robinson v State of South Australia (No 2) [1931] AC 704; Ex parte Brown: Re Tunstall [1966] 1 NSWR 770; cf Ex parte Attorney-General (NSW); Re Cook [1967] 2 NSWR 689.
[346] Section 42F makes the section apply to oral evidence whenever it would apply to matters reduced to writing.
[347] JA Gobbo, D Byrne & JD Heydon, Cross on Evidence, 2nd Aust edn, Butterworths, Sydney, 1979, para 11.38; JH Buzzard, R May & MN Howard, Phipson on Evidence, 12th edn, Sweet & Maxwell, London, 1976, para 679ff; Rodgers v Rodgers (1964) 114 CLR 608; Davies v Nyland (1974) 10 SASR 76, 89-90; Bentley v Nelson [1963] WAR 89; Thomas v Austen (1823) 1 LJ (OS) KB 99; D Vaver, ‘Without Prejudice Communications—Their Admissibility and Effect’ (1974) 9 UBCL Rev 85.
[348] Thomas v Austen (1823) 1 LJ (OS) KB 99.
[349] McTaggart v McTaggart [1949] P 94; Bell v Bell [1970] SASR 310. The discussions may be initiated by one of the parties or the mediator. The persons considered to be mediators may include doctors, clergymen, solicitors, marriage guidance counsellors and probation officers: see Mole v Mole [1951] P 21; Henley v Henley [1955] P 202.
[350] Theodoropoulas v Theodoropoulas [1964] P 311; [1963] 2 All ER 772.
[351] See Bentley v Nelson [1963] WAR 89 -including the negotiations resulting in agreement on some issues only. See also Tomlin v Standard Telephones and Cables Ltd [1969] 1 WLR 1378.
[352] See Field v Commissioner for Railways for NSW [1957] HCA 92; (1957) 99 CLR 285 and Rabin v Mendoza and Co [1954] 1 All ER 247.
[355] ibid.
[356] Barden v Barden [1921] NSWStRp 29; (1921) 21 SR (NSW) 588 and Waldridge v Kennison (1794) 1 Esp 143; 170 ER 306—in the latter, however, the fact admitted, while not in dispute at the time it was admitted, was in dispute at the time of
the trial.
[357] Cross on Evidence, para 11.43, while commenting on the paucity of authority. On the position of the agent see La Roche v Armstrong [1922] 1 KB 485.
[358] [1921] NSWStRp 29; (1921) 21 SR (NSW) 588 is cited for this proposition—and see Waldridge v Kennison (1794) Esp 143; 170 ER 306.
[359] cf Vaver, 157.
[360] (1862) 1 W & W 202, 220.
[361] McKinlay v North Australian Co [1869] SALawRp 21; (1869) 3 SALR 135.
[362] Phipson on Evidence, para 680.
[363] The Times (28 February 1905)—apparently collateral facts and obiter, Waxman and Sons Ltd v Texaco Canada Ltd (1968) 67 DLR (2d) 295, 306.
[364] The Times (22 July 1899)—apparently both parties sought admission of the evidence, Waxman and Sons Ltd v Texaco Canada Ltd (1968) 67 DLR (2d) 295.
[365] Waxman and Sons Ltd v Texaco Canada Ltd (1968) 67 DLR (2d) 295, 309 (Fraser J) affirmed by Ontario Court of Appeal in (1968) 69 DLR (2d) 543. His Honour saw this as necessary to give effect to the underlying rationale of the public interest in encouraging settlements. Note also Warrick v Queen’s College, Oxford (No 2) [1867] UKLawRpEq 85; (1867) LR 4 Eq 254 and discussion—Vaver, 142.
[366] PB Carter, Cases and Statutes on Evidence, Sweet & Maxwell, London, 1981, 247-8; cf Morgan v Babcock and Wilson Ltd (1929) 43 CLR 163, where secondary evidence of a letter marked private was admitted.
[367] Lock v Lock [1966] SASR 246.
[368] eg, notice by debtors ‘without prejudice’ that they intend to suspend payment of debts, an election to keep a contract on foot ‘without prejudice’ to the right to repudiate (see discussion of Long Innes J, Haynes v Hirst [1927] NSWStRp 66; (1927) 27 SR (NSW 480); acts of bankruptcy (Re Daintrey; ex parte Holt [1893] UKLawRpKQB 83; [1893] 2 QB 116); a letter containing a threat contrary to patent legislation (Kurtz & Co v Spence & Sons (1888) 58 LT 438). A libel is a libel notwithstanding that it is contained in a without prejudice letter—R Cross, Evidence. 5th Eng edn, Butterworths, London, 1979, 300ff and Vaver, 139, citing case at (1894) 97 LRJ 265.
[369] Cross on Evidence, para 11.45. See also Wells J in Davies v Nyland (1974) 10 SASR 76.
[370] JD Heydon, Cases and Materials on Evidence, Butterworths, London, 1975, 407.
[371] Bentley v Nelson [1963] WAR 89; Pitts v Adney (1961) 78 WN (NSW) 886; McFadden v Snow (1951) 69 WN (NSW) 8—a ‘without prejudice’ letter admitted to rebut argument that there had been no reply is to a similar effect; Walker v Wilsher [1889] UKLawRpKQB 124; (1889) 23 QBD 335, 338. In some circumstances, the very fact that without prejudice letters were written and the dates thereon may be taken account of by a court—for example, where there is an allegation of laches.
[372] Re Turf Enterprises Pty Ltd [1975] Qd R 266; and see Blow v Norfolk County Council [1967] 1 WLR 1280; Walker v Wilsher [1889] UKLawRpKQB 124; (1889) 23 QBD 335.
[373] Johnston v Jackson (1880) 6 VLR 1.
[374] Davies v Nyland (1974) 10 SASR 76, 90 (Wells J).
[375] id, 106; Greenwood v Fitts (1961) 29 DLR 2d 260.
[376] SA Schiff, Evidence in the Litigation Process, Carswell, Toronto, 1978, vol 2, 1045-7; Wigmore on Evidence, para 1061, 1067.
[377] Fisher & Co v Apollinaris Co (1875) 32 LT 628 (Ch CA) which involved a trade mark infringement in respect of which both civil and criminal proceedings could be brought and In re Ramsay [1870] UKLawRpPC 24; (1870) LR 3 PC 427 where negotiations took place between the judge and the Attorney-General whom the judge alleged to be in contempt of court. The judge, having obtained certain admissions from the Attorney-General in the negotiations, then held him guilty of contempt. On appeal it was held that the communications should have been treated as without prejudice.
[378] Bishop v Civil Service Supply Association (1922) 15 BWCC 128, 130 (CA).
[379] Lace and Lace (1981) FLC 91-080.
[380] Sampson and Sampson [1977] FamCA 42; (1977) FLC 90-253.
[381] Family Law and Practice (CCH), 19, 042.
[382] [1980] HCA 36; (1980) FLC 90-859.
[383] id, 75, 464; the other members of the High Court approved His Honour’s reasoning.
[384] Roberts v Simpson (1817) 2 Stark 203 NP; Pickering v Noyes (1823) 1 B & C 262; Doe v Date [1842] EngR 963; (1842) 3 QB 690; Adams v Lloyd (1858) 3H & N 351, 363. In England the rule can only apply in criminal proceedings, being otherwise abrogated by the Civil Evidence Act 1968, s 16(1)(b). If a property is subject to a mortgage and the deeds relating to the property are held by the mortgagee or trustee, that mortgagee or trustee cannot be compelled to produce the deeds if they would have been protected in the hands of the mortgagor or beneficiary. Davies v Waters [1842] EngR 283; (1842) 9 M & W 608; Phelps v Prew (1854) 3E & B 430.
[385] Pickering v Noses (1823) 1 B and C 262; Doe d Loscombe v Clifford [1847] EngR 393; (1847) 2 Car & K 448. Note the qualification where they contain nothing impeaching his own case or supporting the other side’s case—Viscount Simonds (ed) Halsbury’s Laws of England, 3rd edn, Butterworths, London, 1956, vol 15, 422; vol 12, 60. See, however, Lord Hailsham (ed) Halsbury’s Laws of England, 4th edn, Butterworths, London, 1976, vol 17, para 235, n 2.
[386] Hibberd v Knight [1848] EngR 257; (1848) 2 Ex 11—but need not.
[387] JT McNaughton (ed) Wigmore on Evidence, Little, Brown & Co, Boston, 1961, vol 8, para 2211.
[388] Power of attorney—Miles v Dawson (1796) 1 Esp 405; bill of exchange—Reed v James (1815) 1 Stark NP 132; deed—Davies v Waters (1842) 9 M & W 612.
[389] Doe v Date [1842] EngR 817; (1842) 3 QB 609, 616.
[390] JH Buzzard, R May, & MN Howard (ed) Phipson on Evidence, 12th edn, Sweet & Maxwell, London, 1976, para 608.
[391] Evidence Act 1977 (Qld) s 14(1)(b).
[392] Evidence Ordinance 1971 (ACT) s 95(2).
259. Probative Value and Prejudice Discretion. In criminal cases, a trial judge may exclude evidence adduced by the prosecution if it is more prejudicial than probative. ‘Prejudice’ seems to involve two concepts:[1] danger that the fact-finder may over-estimate the probative value of the evidence[2] and danger that the fact-finder may use the evidence to make its decision on an improper (often emotional) basis ie on a basis logically unconnected with the issues in the case.[3] Various formulations of the test have been used, including:
• ‘where its prejudicial effect outweighs its probative value;[4]
• the ‘prejudicial effect was out of all proportion to their probative value;[5]
• ‘the evidence has little or no weight, but may be gravely prejudicial to the accused;[6]
• evidence of ‘only trifling weight ... of a character gravely prejudicial to the accused even though there may be some tenuous ground for holding it technically admissible;[7]
• ‘evidence whose prejudicial effect ... may be so great in the particular circumstances as to outweigh its probative value to the extent that a verdict of guilty might be considered unsafe or unsatisfactory if ensuing’.[8]
260. Discretion to Exclude Illegally or Improperly Obtained Evidence.[9] Illegally or improperly obtained evidence is, if relevant, admissible as a matter of law.[10] But, in Australia, there is a special judicial discretion to exclude evidence which is ‘the product of unfair or unlawful conduct on the part of the authorities (or, as Chief Justice Dixon put it in Wendo v R,[11] unlawful or improper conduct)’.[12] According to Justices Stephen and Aickin in Bunning v Cross what exercise of this discretion:
involves is no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law. This being the aim of the discretionary process called for by Ireland it follows that it by no means takes as its central point the question of unfairness to the accused. It is, on the contrary, concerned with broader questions of high public policy, unfairness to the accused being only one factor which, if present, will play its part in the whole process of consideration.[13]
They noted several factors relevant to resolving this policy conflict:[14]
• consideration of whether the law enforcement authorities consciously appreciated their use of unlawful or improper means to obtain evidence;
• where the illegality or impropriety in obtaining the evidence was neither deliberate nor reckless (and, in certain exceptional circumstances, even where it was deliberate or reckless), a consideration of the cogency of the evidence obtained;[15]
• consideration of the ease with which the law might have been complied with in procuring the evidence in question;[16]
• consideration of the comparative seriousness of the offence charged and of the improper conduct of the law enforcement authorities;[17]
• consideration of the extent to which legislation relative to the evidence procured evinces an intention to restrict the power to procure it;
• consideration of the urgency in obtaining the evidence;
• consideration of the availability of alternative, equally cogent evidence;
• fairness to the accused.
Other factors have been suggested by subsequent State Court decisions:[18]
• consideration of whether the impropriety has been otherwise dealt with;[19]
• difficulty of detection of the particular crime involved;[20]
• degree of infringement of rights.[21]
Chief Justice Barwick, in Bunning v Cross, agreed with Justices Stephen and Aickin ‘on the proper principles to be followed in exercising a discretion to exclude admissible evidence because of the circumstances or manner in which it was obtained or came into existence.[22] However, his statements on the nature of the discretion appear somewhat different: ‘The question is whether the public interest in the enforcement of the law ... is so outweighed by unfairness to the applicant in the manner in which the evidence came into existence or into the hands of the Crown that notwithstanding its admissibility and cogency, it should be rejected.’[23] In the earlier decision of R v Ireland[24] he had balanced the ‘public need to bring to conviction those who commit criminal offences’ against ‘the public interest in the protection of the individual from unlawful and unfair treatment’.[25] Justice Murphy took into account similar factors to Justices Stephen and Aickin but added: ‘when a person is unlawfully required to incriminate himself, the evidence should be rejected in other than exceptional cases.’[26]
261. When the High Court held in Cleland v R[27] that this discretion applied to improperly obtained confessions, the members of the Court also enunciated ‘slightly different formulations of the discretion. All agreed that a primary concern was to encourage observance of the law by law enforcement authorities, or at least discourage illegal or improper conduct by such authorities. Justices Dawson and Deane also referred to the importance of protecting individuals from unlawful or improper treatment. And Justice Deane further mentioned the undesirability that unlawful conduct ‘should be encouraged either by the appearance of judicial approval or toleration of it or by allowing curial advantage to be derived from it’. Chief Justice Gibbs, with whom Justice Wilson agreed, emphasised that the onus of proof lay with the accused to justify exclusion of the evidence, while Justices Murphy, Dawson and Deane suggested that illegal custody should generally result in exclusion.
[1] R v Duke (1979) 22 SASR 46, 47-8; R v Haidley [1984] VicRp 18; [1984] VR 229, 253 (Brooking J); JA Gobbo, D Byrne & JD Heydon, Cross on Evidence, 2nd Aust edn, Butterworths, Sydney, 1979, para 1.61.
[2] R v Bridgeman (1980) 24 SASR 278, 280.
[3] eg R v Herron [1967] 1 QB 107, 114-5 (CCA).
[4] Markby v R [1978] HCA 29; (1978) 140 CLR 108, 117; Perry v R (1982) 57 ALJR 110, 112, 120; R v Burns [1975] VicRp 25; [1975] VR 241, 251 (FC): R v Scripps [1978] TASStRp 20; [1978] Tas SR 209; R v Lynch [1979] 2 NSWLR 775 (CCA).
[5] Wilson v R [1970] HCA 17; (1970) 44 ALJR 221, 224 (Menzies, Walsh and McTiernan JJ); R v Herron [1967] 1 QB 107; R v West [1973] Qd R 338 (CCA).
[6] Driscoll v R [1977] HCA 43; (1977) 137 CLR 517, 541 (Gibbs J, Jacobs and Mason JJ concurring); Cleland v R [1982] HCA 67; (1982) 57 ALJR 15, 29; R v Christie [1914] UKLawRpAC 20; [1914] AC 545, 564: DPP v Boardman [1975] AC 421, 463 (Lord Salmon); Phillips v Cassar [1979] 2 NSWLR 430, 434 (CCA); R v M [1980] 2 NSWLR 195; (NSW CCA); R v Doyle [1967] VicRp 82; (1967) VR 698, 699; R v Doolan [1962] Qd R 449.
[7] Noor Mohammed v R [1949] AC 182, 192; R v Wray (1970) 11 DLR (3d) 673: R v Duke (1979) 22 SASR 46; Sutton v R [1984] HCA 5; (1983) 58 ALJR 60, 73.
[8] DPP v Boardman [1975] AC 421, 453 (Lord Hailsham).
[9] See generally JD Heydon, ‘Entrapment and Unfairly Obtained Evidence in the House of Lords’ (1980) Crim L Rev 129; R Pattenden, ‘The Exclusion of Unfairly Obtained Evidence in England, Canada and Australia’ (1980) 29 ICLQ 664; New South Wales Law Reform Commission, Working Paper, Illegally and Improperly Obtained Evidence, Sydney. 1979; MH Yeo, ‘The Discretion to Exclude Illegally and Improperly Obtained Evidence: A Choice of Approaches (1981) 13 MUL Rev 31.
[10] Kuruma v R [1955] AC 197; R v Ireland [1970] HCA 21; (1970) 126 CLR 321, 334; R v Wray (1970) 11 DLR (3d) 673.
[11] [1963] HCA 19; (1964) 109 CLR 559. 562.
[12] Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54, 75 (Stephen and Aickin JJ).
[13] id, 74 referring to the comments of Barwick CJ in R v Ireland [1970] HCA 21; (1970) 126 CLR 321, 335.
[14] [1978] HCA 22; (1978) 141 CLR 54, 78-80.
[15] Query the meaning of ‘cogency’—does it include consideration of the probative value (truth) of the evidence (eg, confession). Contrast the judgments of Wickham J and Wallace and Brinsden JJ in Frijaf v R [1982] WAR 128, 134, 146, 150.
[16] R v Byczko (1982) 30 SASR 578, 590 (Jacobs J).
[17] Note a distinction between failing to provide information and actually making a false statement to the suspect: R v Sharp (1983) 33 SASR 366, 376.
[18] Apart from the cases mentioned in the text, Gunning v Cross has been applied in Watters a Harjamaki [1981] Qd R 147 (FC) (evidence rejected); Griffiths v Errington (1981) 7 NTR 3 (evidence rejected); R v Padman [1918] ArgusLawRp 124; (1979) 25 ALR 36 (Tas SC) (evidence not rejected); See v Milner (1980) 2 A Crim R 210 (Fed Ct) (evidence not rejected).
[19] French v Scarman (1979) 20 SASR 333, 341—absence of statutory sanction made the South Australian Supreme Court more willing to exercise its discretion.
[20] R v Warneminde [1978] Qd R 371 where evidence of drug trafficking obtained by police entrapment was admitted.
[21] R v Byczko and McCloud (1982) 7 A Crim R 263, 270, 275 (SA CCA).
[22] [1978] HCA 22; (1978) 141 CLR 54, 65.
[23] id, 64.
[24] [1970] HCA 21; (1970) 126 CLR 321.
[25] id, 335.
[26] [1978] HCA 22; (1978) 141 CLR 54, 84.
[27] [1982] HCA 67; (1982) 57 ALJR 15.
262. Definition. The term ‘taking judicial notice’ is applied to at least two different aspects of the decisional process:
• the process by which the judge (or jury as to matters of fact) acquires information about a proposition of law or fact without formal proof;
• the acceptance and application of a proposition of law or fact without formal proof.[1]
In the discussion of this topic, the term will be used only when it can apply to both aspects. In ‘taking judicial notice’, the judge and jury may rely on matters informally brought to the attention of the judge, use material found by the judge, or use their general knowledge and reasoning which are part of the layman’s mental equipment.
263. The process of taking judicial notice involves a departure from the general rules that:
• the material upon which a court decides a case will be placed before it in the form of evidence formally proved through witnesses; and
• the judge and jury are not permitted in finding any facts, to use their own personal knowledge of relevant facts.[2]
264. The law in all jurisdictions is a combination of common law rules and legislation. There is a lack of consistency in approach.
265. Common Law. It is commonly stated that judges take judicial notice of the written and unwritten law applying within the territory in which they sit.[3] The judge is expected to inform himself. In establishing what is the law to be applied in a particular case, the judge must identify all legislation and case law which is relevant to the case. In the case of legislation, he will examine documents purporting to be printed by the Government Printer. They are studied to obtain details of the content and operation of the legislation. As to case law, the judge will also examine documents purporting to contain the judgment of the relevant courts of the land contained in documents purporting to be authentic reports.[4] Judicial notice is restricted at common law, however, to Public Acts and the common law. Private Acts and foreign law must be formally proved at common law. Similarly instruments such as proclamations, rules, regulations and by-laws must be formally proved.[5] There is authority, however, that regulations[6] and proclamations[7] need not be proved by evidence where the relevant Act declared that regulations made under it were to have effect as if enacted in the Act.
266. Legislation. There is legislation concerned with the ‘taking of judicial notice’ of legislation, delegated legislation, proclamations and the like—both Australian and that from other countries. There is some overlap, inconsistency and difference in approach:
• Judicial Notice of Australian Legislation. There is legislation in the Commonwealth. The State and Territorial Laws and Records Recognition Act 1901 (Cth) has the effect that all Australian courts are required to take judicial notice of State Acts.[8] In addition, by s 4A(c) Evidence Act 1905 (Cth), Australian courts are directed to take judicial notice of Ordinances of a Territory of the Commonwealth. There is also legislation in all States and Territories except South Australia, the Northern Territory and New South Wales. Only in Western Australia, Tasmania and Victoria, however, does the legislation refer to Acts of the Parliament of the Commonwealth. In addition, only in Queensland, Western Australia and Tasmania does the legislation direct the courts to take judicial notice of the date on which such Acts came into operation. In the Australian Capital Territory, the legislation[9] goes further in directing that judicial notice shall be taken of the date on which an Ordinance was made by the Governor-General, notified in the Gazette, and came into operation. The Queensland, Norfolk Island. Christmas and the Cocos (Keeling) Islands legislation deals only with judicial notice of internal legislation.[10]
• Judicial Notice of Proclamations, Orders, Regulations, Rules, and By-Laws. The topic is dealt with extensively by legislation. There are two basic approaches that have been taken—a judicial notice approach, and a prescribing a form of proof approach:
(a) Judicial Notice. This approach has been taken in all jurisdictions with the exception of Western Australia, the Northern Territory and Victoria. The Commonwealth Evidence Act 1905[11] requires judicial notice to be taken of all:
(i) proclamations[12] and orders[13] by the Governor-General made, or purporting to be made, under an Act or Imperial Act;
(ii) Regulations, rules or by-laws made, or purporting to be made, under an Act;
(iii) Ordinances of a Territory of the Commonwealth; and
(iv) Regulations, rules or by-laws made, or purporting to be made, under a law (whether an Ordinance, Imperial Act or State Act) in force in a Territory of the Commonwealth.
As to the States and Territories, the legislation of Christmas and the Cocos (Keeling) Islands and Norfolk Island refers to the taking of judicial notice of similar internal instruments.[14] In contrast to the foregoing, in New South Wales and Queensland, the legislation expressly directs the taking of judicial notice of the date of publication of the regulation, rule or by-law. In the ACT, the relevant provision also directs the taking of judicial notice of the date on which the regulations, rules, or by-laws were made and also of the dates on which they were notified in the Gazette and came into operation.[15]
In Tasmania, however, there is a provision that directs the taking of judicial notice but it is limited to proclamations and orders-in-council[16] by the Governor made or purporting to be made pursuant to any Act or Imperial Act and published in the Gazette.[17] In the ACT judicial notice is directed to be taken but it is limited to proclamations or orders by the Governor-General made or purporting to have been made pursuant to an Ordinance or a continued State law.[18]
(b) Prescribing a Form of Proof. There is overlapping Commonwealth legislation. There are two provisions in the State and Territorial Laws and Records Recognition Act. Section 6 enables proclamations, orders, and regulations issued by the Governor of a State or the Governor-General or by or under the authority of a Minister of the Crown to be proved by tendering:
(i) the Government Gazette containing a copy of the relevant proclamation etc; and
(ii) a copy document purporting to be printed by the relevant Government Printer, purporting to be certified by the Clerk of the relevant Executive Council, or by the relevant Minister; and
(iii) in the case of proclamations of any State or Territory by the production of an examined copy or one purporting to be sealed with the seal of the State or Territory.
The section dispenses with proof of the handwriting or official position of anyone certifying the document. Section 7 overlaps section 6 in providing that evidence of ‘any proclamation ... of any State or Territory may be given by production of an examined copy or a copy purporting to be sealed with the appropriate seal’.[19]
In addition, the Commonwealth Evidence Act s 5 enables the proof of orders made by or under the authority of a Minister to be given by production of the relevant Government Gazette, a copy by the Government Printer or copy purporting to be certified by the Minister.
There are many differences between the States and Territory legislation and the Commonwealth legislation.[20] The following points should be noted:
• Prima Facie. The Victorian legislation provides for the document produced under the relevant provisions to be ‘prima facie evidence’.
• Authenticating the Certifier. The Queensland and Victorian legislation does not have the equivalent Commonwealth provision[21] that proof is not required of the handwriting or official position of any person certifying a document tendered under the legislation.
• Who may Certify Copies. The Western Australian and Tasmanian legislation provides for copies of proclamations, orders and regulations to be certified as true by specified departmental officers.
• A Limited Approach. In New South Wales there is a limited provision enabling proof of private Acts and proclamations issued by the Governor by production of a document purporting to be a copy and purporting to be printed by the Government Printer or by authority of the Government.
There is also Imperial and other State and Territory legislation dealing with similar instruments. The Imperial Documentary Evidence Act 1868 applies in New South Wales, South Australia, the Northern Territory and the ACT.[22] It enables evidence of proclamations, orders and regulations issued by ‘Her Majesty, or by the Privy Council’ or by or under the authority of government departments[23] to be given by production of a copy of the relevant Gazette, production of a copy purporting to be printed by the Government Printer or authority or the relevant colonial legislature or by a certified copy. The legislation dispenses with the need to prove handwriting or the official position of the certifier. Tasmanian and Western Australian provisions are similar to the Imperial Act. The legislation of Queensland and Christmas and the Cocos (Keeling) Islands enables proof of similar instruments to be given by production of the Gazette or document printed by the relevant Government Printer. The Victorian provision enables proof to be given by production of the Government Gazette. Only the Victorian legislation contains a provision similar to the Imperial Act provision enabling the evidence to be treated as prima facie evidence.
The foregoing relates to the proof of proclamations, orders in council, Ministerial regulations, and other instruments. So far as by-laws and regulations made under statutory power are concerned, the following points should be noted:
(a) Commonwealth. Section 15 of the Commonwealth State and Territorial Laws and Records Recognition Act 1901 provides:
15. Where, by any State Act, power to make by-laws or regulations is conferred upon any person or body, any printed paper purporting to be such by-laws or regulations, and to be printed by the Government Printer of the State, or by the authority of the Government of the State, shall in all Courts be evidence–
(a) that by-laws or regulations in the words printed in such paper were duly made by such person or body; and
(b) that such by-laws or regulations have been approved of or confirmed by the Governor of the State, if they appear by such paper to have been so approved of or confirmed.
(b) States and Territories. The following points should be noted:
― Prima Facie Evidence. In Victoria, the legislation provides for the prescribed type of copy to be prima facie evidence.
― A Wider Provision. The Tasmanian provision refers to ‘rules and orders’ as well as by-laws and regulations and refers to ‘bodies corporate or incorporate’.
― Production of the Gazette. In the Australian Capital Territory, a copy or extract from the Gazette purporting to contain the instrument or copy of an instrument required to be published in the Gazette by any law in force in that Territory is evidence of its making, its terms, of satisfaction of the steps and conditions to be satisfied in its making (if they are stated in the Gazette) and of its publication in the Gazette. It also directs that in the absence of proof to the contrary it shall be deemed not to have been revoked and provides that it shall be sufficient if the extract purports to be an extract from the Gazette.[24]
― Corporations. In Victoria and Tasmania, there is extremely detailed legislation dealing with the proof of by-laws[25] of corporations (including municipal, trading and charitable corporations) and their proof.
There are comparable provisions in the Local Government Acts of other States. The legislation generally provides for a method of authenticating a copy of a by-law made by the corporation and providing a detailed presumption of regularity.[26] It directs that the authenticated copy is evidence, until the contrary is proved, of the due making and existence of the by-law and the time at which it came into force without further proof. The authentication required is a certificate in a prescribed form sealed with the common seal of the corporation. Proof of the seal is dispensed with.[27]
In some jurisdictions, there is a combination of approaches—directing judicial notice be taken and directing methods of proof.[28] It may be possible to argue that the latter provisions prevent the former operating. In Rothwell v Riseley[29] it was held that judicial notice of a regulation made under a Tasmanian Act could not be taken as directed by the Acts Interpretation Act 1931 (Tas) s 5(2) and 6(7). It was held that proof was impliedly required of the regulations under the Evidence Act 1910[30] and this excluded the judicial notice provisions.
267. Establishing Foreign Law. The legislation generally does not direct that judicial notice be taken.[31] At common law it is necessary to call someone expert in the subject as a witness to expound to the court the substance of the foreign law. There is no relevant Commonwealth legislation. The State and Territory legislation differs:
• Judicial Notice. The legislation of Western Australia, Tasmania and Victoria requires judicial notice to be taken of Acts of Parliament of any ‘Australasian colony’. (Western Australia and Tasmania) and ‘Australasian State’ (Victoria). These terms are defined in the legislation to extend to Fiji and New Zealand.[32] The legislation of Tasmania and Western Australia requires courts to take ‘judicial notice’ of the Acts of Parliament of the United Kingdom. The Victorian legislation also refers to the Parliament of Great Britain and Ireland or Northern Ireland. The legislation of the Christmas & Cocos (Keeling) Islands also refers to the Parliament of England and Scotland.[33]
• Methods of Proof. There are State and Territory provisions setting out alternative ways of establishing the substance of foreign law—both statute law and case law.[34] They specify the way in which a court may inform itself—eg by examination of documents that purport to be foreign statutes or law reports. In the Queensland legislation, however, there is provision for secondary evidence to be given of the contents of statutes of overseas countries. This may be given by an examined copy or a copy purporting to be sealed with the seal of the relevant state territory or country. Proof may also be given by means of books and pamphlets of various descriptions—eg by books or pamphlets purporting to be published by authority of the Government or by the Government or Official Printer—a book or publication that appears to the court to be a reliable source of information, a book or pamphlet proved to the satisfaction of the court to be admissible in the courts of the foreign country. Similar proofs are permitted in the ACT. Some differences worth noting are that
― in Queensland, Tasmania, Western Australia, South Australia and the ACT reliance may be placed on text books;
― the Victorian legislation is limited to the United Kingdom and Ireland;
― the Queensland legislation applies to International organisations and any part of any overseas country;
― the Queensland and Victorian legislation does not deal with unwritten or common law. There are provisions in most jurisdictions[35] stating that it is for the judge to determine and not the jury to determine the substance of foreign law.
As to proclamations, there is legislation in the States and Territories enabling evidence of proclamations of foreign countries and parts of the British Dominions to be given by an examined copy or a sealed copy. The provisions vary.[36] The Queensland and ACT provisions go further and enable various books or pamphlets to be received as evidence of such matters—purporting to be published by the relevant government, or appearing to be reliable. In Tasmania and Western Australia, the courts are also given power to admit proclamations etc, if considered authentic. It should be noted that under the Victorian provision the copy of the proclamation etc shall be ‘prima facie’ evidence.
268. Common Law. Courts will take judicial notice of facts which are ‘notorious’. An often quoted statement is that of Justice Isaacs:[37]
The only guiding principle—apart from statute—as to judicial notice which emerges from the various recorded cases, appears to be that wherever a fact is so generally known that every ordinary person may be reasonably presumed to be aware of it, the court ‘notices’ it, either simpliciter, if it is at once satisfied of the fact without more, or after such information or investigation as it considers reliable and necessary in order to eliminate any reasonable doubt.
He added
The basic essential is that the fact is to be of a class that is so generally known as to give rise to the presumption that all persons are aware of it. This excludes from the operation of judicial notice what are not ‘general’ but ‘particular’ facts. ...
Thus the fact must be one which can be assumed to be known by ‘every ordinary person’ and thus ‘general’ not ‘particular’ facts may be ‘noticed’.
269. His own knowledge may be relied upon.[38] The texts contain many examples of cases where courts have taken matters into account without formal proof:
• the identity of the Minister for Defence;[39]
• In England—the Great Seals of the United Kingdom and of England, Ireland and Scotland; the Privy Seal and Privy Signet; the Royal Sign Manual and the signatures of the principal Secretaries of State but not of the Lords of Treasury;[40]
• the signature of one of the judges of the court;[41]
• the standards of weight and measure, the public coin and currency;[42]
• the existence of inflation;[43]
• the course of post;[44]
• the fact that venereal disease may lie dormant for a long time;[45]
• that gestation ordinarily lasts for particular periods;[46]
• that Flemington is a race course in the State of Victoria;[47]
• in Fremantle, that ships trade from Singapore to Fremantle;[48]
• the construction of a cray fish pot;[49]
• that in South Australia the same farmland may be cropped once every third year only;[50]
• the behaviour of camels;[51]
• the individuality of fingerprints.[52]
Where science and technology has advanced to the extent of general recognition of the trustworthiness of particular processes or instruments, that trustworthiness is taken into account without formal proof. Thus the trustworthiness of classes of instruments such as clocks, speedometers, thermometers, and common scales has been accepted in cases.[53]
270. Courts have been prepared to take judicial notice of political and historical facts. In the discussion in the Australian Communist Party Case[54] reference is made to matters of international politics and recent history such as the communist seizure of Czechoslovakia, the blockade of Berlin and the airlift, the passing of China into communist control, the entry of North Korean forces into South Korea and the ‘sustained diplomatic conflict between communist powers and the Anglo-American countries and other western powers’. Reference was also made to internal events in Australia such as the ‘serious dislocations of industry that have occurred’.[55]
271. The propositions of Justice Isaacs cited above, however, have not been strictly applied. In particular, courts have held that judicial notice may be taken of facts provided that they are generally known and accepted by the particular community in which the court is sitting. There is also authority that judicial notice may be taken of facts known to and accepted by members of a section of that community when they may not be known to and accepted by the general community:
• Facts Notorious to Persons Residing in a Particular Locality. Courts have acted upon facts not formally proved where they can say that within the community in which they are sitting, the facts are well known to the members of that community. For example, in Warren v Pilkington,[56] it was held that judicial notice may be taken in the inhabited parts of Tasmania—and particularly in parts close to Launceston and Hobart and to the line joining those cities—that sunset at Powranna (21 miles away from Launceston) is never as late as a quarter to nine at night.[57] Justice Owen stated in Malone v Smith:[58]
Other facts may be notorious in some places and not in others. The usual hours during which the business of banking is carried on in the city of London have been judicially noticed by courts sitting in London ... I think it unlikely that a court sitting in Australia would regard the facts as sufficiently notorious in Australia to justify it in dispensing with evidence on the point. The fact the Boorowa is at least five miles from Sydney might be thought by a tribunal sitting in Sydney not to be sufficiently notorious in Sydney as to justify it in taking judicial notice of the facts: but it does not follow that the fact that Sydney is at least five miles from Boorowa is not a notorious fact in the latter town; and 1 think it was, as a matter of law, open to the magistrate, sitting in Boorowa, to consider whether or not the fact in question was not so notorious in the district as to justify him in taking judicial notice of it.[59]
The application of the law, however, is far from clear. This is an area where the problem emerges most clearly of the judge or magistrate having to distinguish between a fact within his personal knowledge and therefore not capable of being acted upon and a fact which, while within his own personal knowledge, is within that of the wider community. There is a substantial body of conflicting authority. For example, it has been held that:
― a justice cannot use his knowledge of a small section of road or the distance between a sign and road crossing but can use his local knowledge of a river wharf and distances across the river and his own knowledge of the nature of a particular bend in a road;[60]
― a magistrate cannot rely on his local knowledge of the amount of traffic along a particular stretch of road at particular times but can take account of the fact that there is likely to be ‘a lot of traffic’ on a particular road;[61]
― a court in Brisbane can take judicial notice of the existence of ‘Lennons Hotel’ in George Street Brisbane. The court at Glen Innes can take judicial notice of the fact that it is the nearest court to Glen Innes, but a judge in Sydney will not take judicial notice of the fact that Burke is more than 150 miles from Sydney.[62]
There is authority in Queensland and Victoria that justices may take judicial notice of the geographical limits of their jurisdiction but there is authority to the contrary in New South Wales and South Australia.[63] An explanation offered for these cases is that there is a process called ‘jury or magistrate’ notice which enables the magistrate and jury to act upon their personal knowledge of specific facts generally known in the neighbourhood. This appears to be an explanation that has arisen in England.[64] Research has not revealed any statements in Australian cases supporting the existence of this category. It has been held that the judge or magistrate cannot take into account facts of which evidence has been given in previous cases.[65] Where, however, the judge or magistrate can say that, having regard to that evidence, he is satisfied that the fact is widely known in the community and he is satisfied of the fact then he may take it into account.[66] However, the Court of Appeal in England has stated that courts may act on facts proved in earlier cases—eg the practice of the Ordinance Survey Office in marking the centre of hedges. The Court of Appeal stated that, after the earlier case and the appeal they were considering, courts in future could take notice of this practice of the Ordinance Survey as at least prima facie evidence of what a line on a map indicates.[67] The ‘prima facie’ qualification, however, is novel.[68]
• Fact Notorious to a Particular Group in Society. The courts have been prepared to take judicial notice of facts which are notorious to a particular professional or trade group in the community while not known by the community at large:
― Custom and Usage. For example, courts have taken judicial notice of the practice of conveyancers[69] and of the mining industry[70] and of the Ordinance Survey Office that a line showing a boundary hedge indicated the centre of the existing hedge.[71] In this area judicial notice can be taken of the fact on the ground of proof of the fact before the same or another court.[72] By a process of judicial notice liens have come to be recognised—for example, the general liens of solicitors, stockbrokers, factors and insurance brokers. Where a general ‘usage has been judicially ascertained and established it becomes a part of the law-merchant, which courts of justice are bound to know and recognise’.[73]
― Science and Medicine. Courts have taken judicial notice of matters known to scientists and medical practitioners. In Horman v Bingham[74] it was held that the magistrate was entitled to make findings as to the position of seeds on the cannabis plant without receiving evidence in the ordinary way. Justice Newton held that:
It is open to a court to take judicial notice of an indisputable botanical fact such as the position of seeds upon a plant, at all events in a case where the fact is well known to all persons having any acquaintance with the plant in question, and may readily be verified by means of standard works of reference, and is not disputed in the course of the proceedings before the court.[75]
His Honour was there taking judicial notice of facts which were notorious, not to ‘every ordinary person’ but to experts and a select group of people who are familiar with the cannabis plant. In Timbury v Coffee[76] Sir Owen Dixon informed himself of the consequences of acute alcoholism. He argued:
How far a court should go in treating the consequences of acute alcoholism as common general knowledge it is not easy to say, but in the present case the evidence makes it clear enough that the testator was an alcoholic paranoiac. With the withdrawal of alcohol from such a patient, physical signs of his condition disappear ... But at the same time his judgment may continue in a state of disorder for a considerable length of time. We are not bound to go on applying views held over a century ago about mental disturbance and insanity and to disregard modem knowledge and understanding of such conditions. In Stoddart’s work, on Mind and its Disorders, 5th ed (1926), p 415, the case of such a patient as the testator was is described in terms which almost fit the present case: ‘Disturbance of judgment is the essential feature of the disease, the patient seeing hidden meanings in the most commonplace incidents. As a rule, the erroneous judgments have reference to his wife’s fidelity. He sees evidence of her infidelity in the fact that she bows to an old acquaintance in the street, that some man unknown to him hurries past the window, that his wife is not prepared for his return from the office an hour earlier than usual or that the cushions on the sofa are not in their usual position.
― Facts Relevant to Constitutional Questions.[77] An issue that arises in cases involving the constitution, is the method by which the parties may establish the factual background and operation of the legislation in question where it is relevant to do so. The task of formally proving the facts can be a daunting one and at times not possible.[78] There have been suggestions that courts should act only upon facts that may be judicially noticed when determining the constitutional validity of legislation—particularly legislation enacted under the defence power.[79] Justice Williams, however, has argued that the court was not confined to such facts.[80] In an earlier case, Stenhouse v Coleman,[81] Sir Owen Dixon expressed the view that if the form of the power makes the existence of some special or particular state of fact a condition of its exercise, then, no doubt, the existence of that state of fact may be proved or disproved by evidence like any other matter of fact. He added however, that—’ordinarily the court does not go beyond matters of which it may take judicial notice’.[82] An issue of importance, therefore is whether the scope of judicial notice is wider in cases on the constitutional validity of laws. At times the High Court has gone beyond the limits stated by Justice Issacs. Justice Evatt for example held that:[83]
the truth is that every well-informed person in Australia is aware that, in pursuance of prior design, the present flour tax applies to all flour manufacturers and consumers in the Commonwealth, but that two exemptions remain ... flour used in the Northern Territory ... flour consumed in Tasmania’. He went on to say ‘if the court to which the protection of the constitution is committed is willing to shut its eyes to facts which are so well known, then, if I may adopt Lord Atkins phrase, used in another connection, ‘the constitutional charter might as well be torn up.[84]
Some judges of the High Court have relied extensively on information gathered from encyclopaedias and other texts information not notorious in the community. In Griffin v Constantine[85] Justice Kitto (in whose judgment Chief Justice Dixon and Justice McTiernan concurred) made extensive use of encyclopaedias to obtain information about the development of methylated spirits and the tariff history relating to alcohol and methylated spirits in determining the validity of a section in the Spirits Act. In Marcus Clark and Co Ltd v Commonwealth[86] Sir Owen Dixon referred to the Encyclopaedia Brittanica for information about the United States controls on the issue of capital during the First World War in considering the validity under the defence power of regulations designed to control the issue of capital. In Matthews v Chicory Marketing Board (Vic)[87] Sir Owen Dixon referred widely to numerous dictionaries, histories and other works in investigating the meaning of the term ‘excise’.[88] In Farey v Burvett[89] Justice Higgins, in considering the validity of regulations fixing the price of bread, referred to his experience (albeit as ‘hypothetical illustrations’) in Sicily where bread riots took place and also to the abundance of the wheat harvest and details of an industrial dispute over wheat exports which he dealt with as President of the Court of Conciliation and other matters.[90]
Justice Dixon suggested that the courts’ power may be wider. In Stenhouse v Coleman[91] he said:
But ordinarily the court does not go beyond matters of which it may take judicial notice. This means that for its facts the court must depend upon matters of general public knowledge. It may be that in this respect the field open to the court is wider than has been commonly supposed: see WR Moran Pty Ltd v Deputy Commissioner of Taxation (NSW);[92] Attorney-General for Alberta v Attorney-General for Canada.[93]
His Honour expressed himself more strongly in Commonwealth Freighters v Sneddon:[94]
Highly inconvenient as it may be, it is true of some legislative powers limited by definition, whether according to subject matter, to purpose or otherwise, that the validity of the exercise of the power must sometimes depend on facts, facts which somehow must be ascertained by the court responsible for deciding the validity of the law ... if a criterion of constitutional validity consists in matter of fact, the fact must be ascertained by the court as best it can, when the court is called upon, to pronounce upon validity.
In a later case His Honour drew a distinction between:
on the one hand, ordinary questions of fact which arise between the parties because one asserts and the other denies that events have occurred bringing one of them within some criterion of liability or excuse set up by the law, and, on the other hand, matters of fact upon which under our peculiar federal system the constitutional validity of some general law may depend. Matters of the latter description cannot and do not form issues between parties to be tried like the former questions. They simply involve information which the Court should have in order to judge properly of the validity of this or that statute or of this or that application by the Executive Government of State or Commonwealth of some power or authority it asserts.[95]
It has been suggested that His Honour was distinguishing between ‘legislative facts’ (facts upon which constitutional validity depend) and ‘adjudicative facts’ (facts in issue between the parties)—a United States distinction.[96] Sir Owen Dixon appeared to be suggesting that ‘legislative’ facts are different to ‘adjudicative’ facts and arguably, not subject to rules of evidence controlling proof like the latter. Whether the court is limited to facts of which judicial notice may be taken and the scope of such judicial notice was not stated. The special role of the court, places it under pressure to obtain all relevant information. The techniques used appear to have involved a wider concept of judicial notice or informal waiver of the rules of evidence.
272. Mandatory or Discretionary. The statement of principle of Justice Isaacs suggests that the judge is obliged to take into account facts that are ‘generally known’ provided he is satisfied of the fact and that the judge has the power to inform himself about the fact. In R v Aspinall it was said that:[97]
Judges are entitled and bound to take judicial notice of that which is the common knowledge of the great majority of mankind and of the great majority of men of business.
In Morgan v London General Omnibus Co[98] it was stated that:
in construing Acts of Parliament the judges of the Queen’s Courts must use their own knowledge of the various employments existing throughout the realm.[99]
The reported cases, however, generally deal with the issue of whether the trial judge or magistrate should have taken a particular fact into account without formal evidence. The discussion is about whether the judge or magistrate may or should, but not must, take judicial notice of the fact.[100] In Allchurch v Healey,[101] Justice Angas Parsons said:
The Courts will take judicial notice of facts which are notorious, and there is a wide discretion which may be exercised on this. On the evidence that the constable saw a light in a room described by them as a saloon bar, it seems to me that it is mere affectation of ignorance, or, to use a phrase of Lord Sumner, a ‘cloistered aloofness’ to say that the court does not know that a saloon bar is a bar room and that liquor is necessarily kept there and from there supplied to customers.
It is not clear, however, to what aspect the term ‘discretion’ would apply.[102] It may in fact apply to the judgment of whether the fact is in the required class. The task for the judge would appear to be to determine whether the fact, about which the issue of taking judicial notice has arisen, is one which is of the type that may be judicially noticed. It may be argued that if it is, he is obliged to take account of his knowledge and he may inform himself.[103]
273. Legislation. There is differing legislation in most jurisdictions which permits or requires the taking of ‘judicial notice’ either expressly—and sometimes misusing the term—or impliedly. It is proposed to briefly refer to the areas affected.
• Matters of History, Politics, Science and Art. There is legislation in some jurisdictions enabling material relating to history, science and other matters to be used though not formally proved.[104] In Tasmania and Western Australia the following provision permits a form of judicial notice:
All courts and persons acting judicially may, in matters of public history, literature, science or art, refer, for the purposes of evidence, to such published books, maps, or charts as such courts or persons consider to be of authority on subjects to which they respectively relate.[105]
In South Australia a similar provision applies, but it includes the proviso that:
Nothing herein contained shall be deemed to require any such court to accept or act upon any such evidence when tendered, unless it thinks fit.[106]
In Christmas and the Cocos (Keeling) Islands the following provision applies:[107]
57(1) The court shall take judicial notice of the following facts:
(ix) The ordinary course of nature, natural and artificial divisions of time, the geographical divisions of the world, the meaning of English words, ...
(2) In all these cases [relating to judicial notice] and also on all matters of public history, literature, science or art, the court may resort for its aid to appropriate books or documents of reference.
The provision distinguishes between taking judicial notice and referring to matters of public history.
In South Australia, it has been held that the court should give parties the opportunity to be heard on whether the above power should be used and on the result of the research. ‘To do otherwise ... is to commit an obvious breach of a fundamental rule governing the administration of justice’.[108] It was also held, however, that a tribunal should not ‘seek to inform itself ... on a question ... vital to the issue and by no means free from controversy’ without the consent of the parties. These matters are said to be relevant to the proper exercise of the discretion conferred by the section.[109]
Different forms of proof of astronomical phenomena are provided by legislation in Queensland, Western Australia and South Australia:[110]
― South Australia and Western Australia. The legislation provides for proof by production of a copy of the Government Gazette containing the information in a quarterly almanac. In the South Australian legislation the evidence of the almanac is prima facie evidence.
― Queensland. Evidence relevant to ‘the time or duration of any astronomical phenomenon ‘may be given by production of a certificate purporting to be signed by the surveyor-general or a person performing his duties. The certificate may explain the relevant material.
• Territorial Limits, Matters of Geography. There is no Commonwealth legislation. In the States and Territories the following legislation appears relevant:
(a) Modified Judicial Notice and Admitting Evidence. There is legislation in South Australia and the Northern Territory by which courts may inform themselves as to territorial limits of municipalities and districts and the distance between two places[111] by referring to:
― any such published book, map, chart, or document as the court considers to be of authority upon the subject to which it relates; or
― any certificate purporting to be signed by some person occupying any official position which, in the opinion of the court, qualifies him to certify to the fact in question;
― provided that nothing contained in this section shall be deemed to require any such court to accept or act upon on any such evidence when tendered unless it thinks fit. The legislation permits the court to refer to materials but also treats the material as ‘evidence’ which is capable of being ‘tendered’.
Similar provisions are to be found in the Australian Capital Territory and Queensland.[112] The provisions, however, do not permit the court to refer to material. Instead, they permit courts to admit the materials in evidence.
The Queensland legislation also provides that a map, chart or plan purporting to be issued or published by any State or Commonwealth department or officer of such department in discharge of his actions may be produced in evidence and shall be sufficient evidence of the matters contained in it until the contrary is proved.[113]
(b) Admitting evidence. A combination of provisions applying in Christmas and the Cocos (Keeling) Islands has the effect that statements made in published maps or charts generally offered for public sale or in maps or plans made under the authority of government are admissible as evidence of the matters contained in them.[114] In Tasmania, a detailed provision[115] permits the tender of a copy of a map certified by a prescribed officer to be a copy of a map kept in custody or at the central plan office. It also provides that the map, in absence of evidence to the contrary be evidence of features, boundaries and places. The section also requires the courts to take judicial notice of the relevant signatures.
(c) The Averment as Evidence. Reference should also be made to another device which meets the problems of proof in a different way. For example, the legislation of South Australia and the Northern Territory gives prima facie evidentiary effect to averments that a place is a public place and an averment that a public place specified in the complaint or information is within a municipality or town.[116]
• Statistical Information. There is common law authority that a court cannot take judicial notice of cost of living figures appearing in the statistical information produced by the Government Statist.[117] There does not appear to have been any legislation passed which permits the courts to inform themselves from such material.[118] Regulation 167 of the Family Law Regulations (Cth) 1976 however, provides that the Family Court may without, requiring further proof, act on information contained in a copy of the consumer price index published by the Commonwealth Statistician. It also provides that a statement or pamphlet published by or with the authority of the Government Printer setting out certain Social Security benefits may also be so acted upon. Both provisions could be described as provisions permitting the court to take judicial notice of such material.
• The Ordinary Course of Post. Although there is some English authority[119] for the proposition that a court may take judicial notice of the course of post, the issue appears to be largely controlled by legislation in most Australian jurisdictions. Different approaches are taken:
― Judicial Notice. In South Australia and the Northern Territory, the provision referred to above enabling a court to refer to published books, maps, charts and documents or to an appropriate certificate also applies where the court is determining matters relating to the ordinary course of post within or without the Commonwealth and to the public business and transactions of the Australian Postal Commission. The Christmas and Cocos (Keeling) Islands legislation permits a court to presume the existence of any fact which it thinks likely to have happened having regard to the common course of public and private business.[120]
― Presumption of Delivery and Common Law. In all the Interpretation Acts and Ordinances there is a provision that delivery of a document properly addressed and posted as a letter shall, unless the contrary is proved, he deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of the post.[121] The legislation leaves open the question of how ‘the ordinary course of post’ may be established. The Evidence Ordinance ACT[122] also provides for the use of a certificate as evidence of the likely delivery time and date.
― Statutory Definition of Time of Service. The Family Law Regulations (Cth) 1976 specify a time after which service of a document shall be deemed to have been effected by a post—four days if posted for service in Australia and 28 days if posted for service outside Australia.[123]
• Official Seals and Signatures. In proving official documents it is necessary at common law to authenticate them by proving the seals and signatures attached to them. At common law, there is authority for taking judicial notice of some seals and signatures.[124] There is authority, however, that judicial notice cannot be taken of a Governor’s signature[125] or the signature of an officer such as the Deputy Registrar General in the absence of statutory direction to do so.[126] The limitations of the common law have resulted in most evidence legislation containing extensive provisions relating to judicial notice of official seals and signatures. In the Commonwealth and in most jurisdictions[127] there is legislation which directs courts in mandatory language to take ‘judicial notice’ of the signatures and seals of various public officers:
― Commonwealth. The Evidence Act 1905 directs courts that they ‘shall’ take judicial notice of the signature and seal of a wide range of office holders.[128] It also requires that judicial notice be taken of ‘the fact that such person holds or has held such office’. A condition precedent, however is that ‘the signature or seal purports to be attached or appended to any judicial or official document’.
The legislation was considered by the High Court in Holland v Jones.[129] Justice Isaacs stated that the Act ‘is partly an extension and partly a modification of the common law’. He points out that the section:
extends, or may by force of an order from the Governor-General extend, the number of offices to which the doctrine applies. It also by s 4(c) requires notice to be taken of the personality of the official on the mere production of the judicial or official document.[130]
As to the latter point, he said that it was not necessary under the legislation that there be independent proof of the official character of the signature or the document.
The State and Territorial Laws and Records Recognition Act 1901 also contains provisions relating to the taking of judicial notice of official signatures and seals.[131] It refers to some similar office holders but also refers to officers such as the curator of intestate estates, registrar of titles, government statist, and justices of the peace. It does not, however, refer to Ministers of the Crown and Parliamentary officers. In addition, it does not direct the courts to take judicial notice of ‘the fact that such a person holds or has held such office’. The provision directs all courts to ‘take judicial notice’ of the signatures and seals of the persons holding the offices listed ‘in any State or Territory’.
― States and Territories. Somewhat similar legislation is found in most States and Territories. The lists of persons and seals mentioned vary.[132] Some points to note are:
(a) Signatures Only. In New South Wales and Northern Territory, the legislation is limited to signatures. It does not refer to seals.
(b) List of Office Holders. In the Northern Territory and Norfolk Island the list of office holders to whom the provision applies is significantly more limited. In Tasmania, however, the legislation includes a large number of officers such as officers of municipalities, persons in charge of statutory authorities and departmental heads who do not appear in most of the legislation. In New South Wales, the provisions relate to the judges and court officers of the Supreme Court and to Ministers of the Crown, the Solicitor-General and officers notified in the Gazette.
(c) ‘Judicial Notice’ that Person holds Office. The Victorian, the Northern Territory and New South Wales legislation does not contain within it any express provision directing the court to take judicial notice of the fact that the person whose signature or seal is in issue holds or held the office in question. The New South Wales legislation directs that judicial notice be taken of that fact but only in relation to a limited class of people.[133] The question of whether the absence of such a provision creates difficulties has been considered in the Victorian Supreme Court. Authority in other jurisdictions has not been found. In Reddy v Ross,[134] Justice McInerney in considering a similar provision expressed the view that it was implicit in the provision:
that the court is required to take judicial notice of the identity of the person who at the relevant time holds the relevant office.
In a later case Justice Gillard expressed reservations about this reasoning.[135]
whilst I am a little dubious as to the correctness of the view that a court is required to take judicial notice of the identity of the person who at the relevant time holds the office concerned, nevertheless ... having regard to his great experience in this rubric of the law, I am content to follow McInerney J’s dictum.
(d) Officers of Other Jurisdictions. The Tasmanian and Victorian provisions extend to persons holding the prescribed officers in Fiji and New Zealand. This results from the definitions of ‘Australasian colony’ and ‘State’.[136]
A different approach has been taken in South Australia. Reference has been made above to the absence of general provisions in South Australia.[137] Reliance is placed upon provisions which dispense with proof of seals and signatures. Thus judgments, decrees and orders or other judicial proceeding of any court may be proved by production of a document purporting to be a copy and to be sealed with the seal of the court or purporting to signed by a judge of the court.[138] In addition, books and documents of a public nature may be proved by production of a copy which purports to be signed and certified as a true copy by the officer to whose custody the original is entrusted.[139] Orders in council, proclamations, treaties and other acts of State may be proved by documents purporting to be certified by named officers or purporting to be sealed in the ways described in the legislation.[140] It may be argued that this is a more accurate way to describe the process to be the followed. It is suggested that those provisions which require a court in mandatory language to take judicial notice of seals and signatures are normally applied as if they dispense with the need for evidence to authenticate the seals and signatures. This is straining the common law concept of judicial notice—a process by which the court applies its own knowledge or informs itself in reaching conclusions.
• Seals of State.[141] There is old English authority under which courts in the United Kingdom would be entitled to take judicial notice of the great seals of the United Kingdom and of England, Ireland and Scotland.[142] Research has not revealed any relevant Australian authority. There is, however, legislation in all jurisdictions with the exception of New South Wales, South Australia, the Australian Capital Territory and the Northern Territory which directs courts to take a judicial notice of Seals of the State. The Commonwealth Evidence Act s 3 directs courts to take judicial notice of the impression of the seal of the Commonwealth without evidence of the seal having been impressed or other evidence relating thereto. The State and Territorial Laws and Records Recognition Act 1901 (s 4) in similar terms directs courts to take judicial notice of the Seal of any State or of any Territory. As to the States and Territories, the following points should be noted:
― The Seal to be Judicially Noticed. The Tasmanian, Western Australian and Victorian legislation has the effect that courts are directed to take judicial notice not only of the seal of the State in which they sit but also the seals of the other States and Fiji and New Zealand.[143] In Christmas and the Cocos (Keeling) Islands the courts are directed to take judicial notice of the seals of which English courts take judicial notice.[144] A similar approach was taken on the question of the seals and signatures of officers, courts, proof of proclamations, orders, etc.
― General. The Commonwealth and Tasmanian, Western Australian, Victorian and Queensland legislation provide that in taking judicial notice of the relevant seal a court shall do so ‘without evidence of the seal having been impressed or any other evidence relating thereto’. The scope of this provision is not clear. It can be argued that the section directs the courts to accept the seal at face value without evidence identifying it and establishing it as the duly designated seal. The addition of the words, however, suggest that the legislature intended that the courts should go further and accept that it was duly impressed.
• The Proceedings of Parliament. Courts in the United Kingdom have taken judicial notice of the order and course of proceedings in Parliament[145] and of the date and place of the sittings of Parliament.[146] No reported Australian decisions have been identified. The only legislation identified is that in the ordinance applying the Christmas and the Cocos (Keeling) Islands. Section 57(1)(iv) provides that courts ‘shall take judicial notice of ... the course of proceedings of Parliament and of the legislative assembly of the colony’.[147] The issue has been the subject of legislation relating to votes and proceedings and other records.[148] That legislation in terms does not direct or permit the court to take judicial notice. Instead it directs the court to admit documents that come within the description contained in the legislation. Commonwealth legislation refers to documents purporting to be ‘copies of the Votes and Proceedings or Journals or Minutes of either House of the Parliament, or of papers presented to either House of the Parliament’, and ‘a copy of the official record of, or of any part of, proceedings of a joint sitting of the Parliament or of a paper presented to a joint sitting of the Parliament’, and enables their admission if they purport to be printed by the Government Printer.[149]
Other legislation deals with documents purporting to be a copy of a ‘motion, resolution or proposed law moved in, agreed to by or introduced in a House of the Parliament, or a particular committee of a House of the Parliament’ and enables certain conclusions to be drawn.[150]
Legislation in the States and Territories differ in the bodies whose records may be produced. The legislation of Queensland and South Australia refers only to the Parliaments of the respective States. The legislation of Victoria, Western Australia and Tasmania includes the parliaments of New Zealand and Fiji.[151] The Tasmanian provision also refers to the Commonwealth and to the United Kingdom Parliaments. The Ordinance of the Christmas and Cocos (Keeling) Islands permits proof of proceedings in the ‘Legislative Council’ and ‘Legislative Assembly’ by minutes or published ordinances or copies purporting to be printed by order of the Government. In Norfolk Island there is provision for proof of the minute book of the Norfolk Island Council by production of the minutes or a certified copy and for proof of the minutes of the Legislative Assembly by tendering a document purporting to be certified by the clerk or acting clerk to be a true copy or extract from the minutes.
• Orders, Commissions, Acts of State.[152] Reference has been made above to Commonwealth, State and Territory provisions requiring judicial notice to be taken of orders. For the most part such legislation provides modes of proving orders, commissions, and acts of state.[153]
274. Common Law. The foregoing reveals many differences and doubts. Whether judicial notice may be taken of regulations, by-laws and proclamations, depends on whether the legislation under which they are produced states that they are to have effect as if enacted in the legislation. As to purely factual matters, the scope of the power of the court is in doubt with decisions departing from the original formulations of principle. Also the mandatory and discretionary aspects of the power are unclear.
275. Legislation. The courts are faced with a mass of legislation which is inconsistent in its approach and which varies within the States and Territories. On occasions the provisions overlap—both as between Commonwealth on the one hand and State and Territory legislation on the other and also within the legislation of States and Territories. The provisions relating to judicial notice are to be found in Evidence, Interpretation, Supreme Court, Crimes, and Local Government Acts and Ordinances. A similar situation exists in Canada and was the subject of criticism by the Canadian Task Force.[154]
276. The differences in subject matter approaches may be summarised as follows:
(a) True Judicial Notice Provisions. In a number of jurisdictions there are provisions which impliedly set out proposals whereby the courts may or shall take judicial notice of facts. Reference should made to the provisions relating to:
― history, literature, science, art, the course of nature and time;[155]
― geographical divisions and territorial limits of municipalities and districts;[156]
― statistical information;[157]
― ordinary course of post.[158]
Generally, the provisions do not speak of the courts ‘taking judicial notice’. The provisions authorise the courts to refer to material but provide for that material to be ‘evidence’. The materials vary in the different areas. They include not only published books, maps, charts and other documents but also a certificate purporting to be signed by an appropriate official, material published by the Commonwealth statistician and material published with the authority of the Government Printer. There are also provisions which expressly direct courts to take judicial notice of legislation, delegated legislation, proclamations and of their operation orders.[159] The most comprehensive provision is in the legislation of the Christmas and Cocos (Keeling) Islands. A lengthy provision[160] attempts to state comprehensively the matters to be judicially noticed and the manner in which that may be carried out. The court is directed in mandatory language to take judicial notice of facts listed in some 14 paragraphs. As to them, the court is permitted to refer to appropriate books or documents of reference. It is given also the power to inform itself on matters of public history, literature, science or art. Finally, it is given the power to refuse to take judicial notice of any fact when requested to do so by a patty unless and until that party produces the necessary material to enable the court to do so. The section distinguishes between facts which the court is required to inform itself on and facts about which it may inform itself. It also appears to distinguish between the type of fact of which judicial notice shall or may be taken and the acceptance of the truth of a proposition of fact within those categories. This, in particular, is to be contrasted with the next type of provision.
(b) Presumptive Provisions. There are many provisions in the legislation throughout Australia differing in scope where the courts are directed in mandatory language to ‘take judicial notice’ of signatures and seals of a Queen’s representative, ministers of the Crown, judges, and various other statutory officers and seals of state.
The legislation, however, appears to have the effect of requiring the court to accept the seal, signature etc. as the seal or signature that it purports to be without investigating its authenticity in any way. This is achieved in a variety of ways:
― judicial construction[161]—the term ‘take judicial notice’ is interpreted to mean acceptance of a fact without proof;
― use of provisions such as those requiring court to take judicial notice ‘without evidence of the seal having been impressed or any other evidence relating thereto’;
― directing that the court shall take judicial notice of the fact that the person whose signature or seal is in question holds or held the office in question.
Whether this is a correct analysis or not, it appears to be the result in practice of such provisions—the court assumes that the signature appearing on the document or the seal is the signature or seal required, was duly affixed and, in the case of the signature, the person who purported to sign was in fact the appropriate office holder duly appointed. As a result, the evidentiary onus is placed on any party against whom such documentary evidence is tendered to challenge any particular aspect of what would otherwise have been the formal proof required to authenticate the document. In most of the jurisdictions, however, much of the legislation adopts a different approach—expressly dispensing with formal proofs in certain prescribed circumstances or prescribing forms of proof.
(c) Prescribing or Dispensing with a Form of Proof. In most of the areas referred to in the text above, the approach of prescribing a form of proof or dispensing with formal proof has been adopted. Different proofs are specified:
― production of a Government Gazette containing what purports to be the relevant document;
― production of a certificate purporting to be signed by a specified officer;
― reliance on published maps and books;
― reliance on an averment of fact in the information;
― production of documents purporting to be made or published by named people or bodies;
― production of documents purporting to be signed or sealed or certified by named people and bodies;
― production of documents purporting to be copies of specified documents;
― production of books and pamphlets appearing to be reliable or authentic.
In some instances, the evidence in the prescribed form is described as prima facie evidence.
[1] As to the latter sense see JA Gobbo, D Byrne & JD Heydon, Cross on Evidence, 2nd Aust edn, Butterworths, Sydney, 1979, para 7.2; JH Wigmore, A Treatise on The Anglo-American System of Evidence, 3rd edn, Boston, Little, Brown & Co, 1940, vol 9, para 2567; JB Weinstein & MA Berger, Weinstein’s Evidence, New York, 1983, para 200 1011.
[2] Holland v Jones [1917] HCA 26; (1917) 23 CLR 149, 153; R v Rosser (1836) 7 C and P 648; Wetherall v Harrison [1976] 1 QB 773, 777-9; Reynolds v Llanelly Tinplate Co [1948] 1 All ER 140; A Walton, Russell on the Law of Arbitration, 19th edn, Steven & Sons, London, 1979, 285; Cross on Evidence, para 7.17.
[3] Wigmore for example treated domestic law as judicially noticeable (Wigmore on Evidence, vol 9, para 2572). However Wigmore has been accused of inconsistency. (GD Nokes, ‘The Limits of Judicial Notice’ (1958) 74 LQ Rev 59, 63-4). See also ME Morgan, ‘Judicial Notice’ (1944) 57 Harvard Law Rev 269, 271. JH Buzzard, RD Amlot. S Mitchell, Phipson on Evidence, 11th edn, London, Sweet & Maxwell, 1970, para 49; Lord Hailsham (ed) Halsbury’s Laws of England, 4th edn, Butterworths, London, 1976, vol 17, para 100.
[4] The sources of information are recognised and accepted as authentic but it is presumably possible for a party to contest the authenticity and accuracy of the material relied upon. Compare the attack on the validity of regulations in Watson v Lee [1979] HCA 53; (1979) 144 CLR 374.
[5] Ex parte Madsen: re Hawes (1960) SR (NSW) 550 and Cock v Stawell Amalgamated etc Mining Co [1898] VicLawRp 60; (1898) 24 VLR 165. See also JW Every-Burns, ‘Regulations Judicially Noticed’ (1957) 31 ALJ 458.
[6] Brebner v Bruce [1950] HCA 36; [1950] 82 CLR 161, 167-8 (Latham CJ). In Anderson v Chigwidden [1961] VicRp 89; [1961] VR 564, 567-8 Adam J considered Brebner v Bruce on the issue of whether regulations under the Motor Car Regulations 1952 (Vic) should have been formally tendered in evidence before the magistrate. His Honour expressed some support for the argument but noted the distinction that was made in Brebner v Bruce that the regulation under the legislation in that case was described as having effect as if enacted in the Act and declined to express any final view on the matter as he had heard no argument.
[7] Marshall v Wettenhall Bros [1914] ArgusLawRp 29; [1914] VLR 266, 269; Brebner v Bruce [1950] HCA 36; [1950] 82 CLR 161. The decision in Marshall v Wettenhall Bros was followed in the case of Andrew v W Pridham (Aust) Pty Ltd [1974] VicRp 74; [1974] VR 620 to support the proposition that the magistrate was entitled in that case to take judicial notice of the proclamation which brought the relevant parts of the relevant legislation into operation. It was also referred to by Adam J in Anderson v Chigwidden [1961] VicRp 89; [1961] VR 564. As to the ‘part of the law’ distinction enabling judicial notice to be taken of regulations, see Blake v Hatte: ex parte Hatte (1929) QSR 271.
[8] s 3.
[9] Evidence Ordinance 1971 s 8.
[10] Evidence Acts and Ordinances of (Qld) s 43; (NI) s 5: Interpretation Ordinances (Christmas Island) s 57 and (Cocos, (Keeling) Islands) s 9. Mention should be made of the Federal Council Evidence Act 1886 s 3 which directs courts within ‘the Federation’ to take judicial notice of the Acts of the Federal Council and of any Parliament of any Australasian colony in proceedings under legislation of the Federal Council. The Federal Council of Australasia compromised Western Australia, Fiji, Queensland, Tasmania and Victoria. It was later joined by South Australia. Several pieces of legislation were enacted. In particular the Federal Council Evidence Act, 1886 was passed which contained provisions relating to judicial notice of signatures and seals. While it appears that this legislation is still in force in Australia amongst the States who were parties to it. that legislation is only applicable when courts are concerned with the operation of other legislation enacted by the Federal Council. It is unlikely, therefore, to have any practical impact. Note Guthrie v Guthrie [1890] VicLawRp 57; (1890) 16 VLR 280; 15 VLR 612 and Picturesque Atlas Co v Searle [1892] VicLawRp 141; (1892) 18 VLR 633.
[11] s 4A. The State and Territorial Laws and Records Recognition Act does not include a judicial notice provision relating to the above instruments. Instead. it contains elaborate provisions dispensing with formal proof and substituting alternative proofs. These will be considered later.
[12] A notice publicly given of anything whereof the sovereign thinks tit to advertise his subjects—J Burke, Jowitt’s Dictionary of English Law, 2nd edn, Sweet and Maxwell, London, 1977, 1439.
[13] A direction or command—Jowitt’s Dictionary of English Law, 1290.
[14] See Evidence Act: (Cth) s 4A: (Qld) s 43: (SA) s 37. Evidence Ordinance: (ACT) s 9: (NI) s 5(1)). Interpretation Act 1897 (NSW) s 34. Interpretation Ordinance: (Christmas Island) s 9: (Cocos (Keeling) Islands) s 9.
[15] Evidence Ordinance 1971 s 9.
[16] An order made by the Governor by and with the advice of the Council under legislation or the prerogative—Jowitt’s Dictionary of English Law, 1291.
[17] Acts Interpretation Act 1931 (Tas) s 39. See also Evidence Act 1898 (NSW) s 18 and Statutory Instruments Reprint Act 1952 (Qld) s 6.
[18] Interpretation Ordinance 1967 (ACT) s 54.
[19] Note also s 14 and s 14A, which enables Government Gazettes of States and Territories. on production. to be evidence of the due performance of an act authorised by law of the Governor-General, Governors, Ministers and authorities of a Territory.
[20] Evidence Act: (Cth) s 5: (NSW) s 18: (Qld) s 48: (SA) s 37, 37a. 376: (Tas) s 49. 50. 51: (Vic) s 61, 68: (WA) s 58, 59, 60, 61: (NT) s 28A: (NI) s 18. Evidence Ordinance 1971 (ACT) s 54. Interpretation Act: (NSW) s 34: (NT) s 65. State and Territorial Laws and Records Recognition Act 1901 (Cth) s 1-7. Statutory Reprints Act 1952 (Qld) s 6. Act Interpretation Act 1931 (Tas) s 39.
[21] s 6(2) of the State and Territorial Laws and Records Recognition Act 1901. There does not appear to be general legislation in South Australia and Queensland dealing with by-laws and regulations made under statutory power.
[22] See Evidence Act: (Tas) s 48: (Vic) s 50, 61: (WA) s 57. Christmas and Cocos (Keeling) Islands Evidence Ordinance (Sing) s 78(c).
[23] These are listed in a schedule to the legislation.
[24] Instrument is defined to include orders, by-laws, notices or directions but not to include proclamations made by the Governor-General—Evidence Ordinance 1971 (ACT) s 10.
[25] And also minutes. See Evidence Act: (Tas) s 27-32: (Vic) s 82-85. The Supreme Court Act 1958 (Vic) s 178.
[26] Local Government Act: (NSW) s 617, 618; (Qld) s 52(23)): (SA) s 739.
[27] Evidence Act: (Vic) s 82-85: (Tas) s 27-32. Local Government Act: (NSW) s 617, 618; (Qld) s 59(23); (SA) s 739.
[28] Evidence Ordinance 1971 (ACT) s 9, s 10: Interpretation Ordinance 1967 (ACT) s 54. Compare Evidence Act 1977 (Qld) s 43, s 48: Evidence Act 1898 (NSW) s 18 and Interpretation Act 1897 (NSW) s 34. Also Evidence Act 1905 (Cth) s 4A and State and Territorial Laws and Records Recognition Act 1901 s 6A
[29] [1946] TASStRp 5; (1946) Tas SR 22.
[30] See s 73.
[31] The exceptions are Western Australia, Tasmania and Victoria.
[32] The definitions derived from the Federal Council of Australasia Evidence Act of 1886. The Federal Council comprised Western Australia, Fiji, Queensland, Tasmania and Victoria. It was later joined by South Australia.
[33] See Evidence Act: (Tas) s 44(1)b; (Vic) s 76; (WA) s 53(1)b. Christmas and Cocos (Keeling) Islands: see Evidence Ordinance (Sing) s 54(1)ii.
[34] Evidence Act: (NSW) s 19(1) and (2); (Qld) 5 67, 68; (SA) s 63; (Tas) s 65. 66: (WA) s 70, 71; (Norfolk Island) s 19(1) and (2); (NT) s 63(1). Evidence Ordinance: (ACT) s 47; Christmas and Cocos (Keeling) Islands s 85. Acts Interpretation Act 1958 (Vic) s 34.
[35] Northern Territory and the ACT excepted Evidence Act: (NSW) s 19A; (SA) s 63a, Supreme Court Act (Vic) s 62(1A); (WA) s 172; Supreme Court Civil Procedure Act 1932 (Tas) s 36; Evidence Ordinance (Sing) s 38, 45.
[36] See Evidence Act: (NSW) s 15, 17; (Qld) s 68, 44; (SA) s 38(1) and (2); (Tas) s 53, 54; (Vic) s 48, 45: (WA) s 63, 64; (Norfolk Island) s 17, 19; (NT) s 27; Evidence Ordinance: (ACT) s 47(1)c, 41; (Christmas and Cocos (Keeling) Islands) s 78(d) and 79.
[37] Holland v Jones [1917] HCA 26; (1917) 23 CLR 149, 153.
[38] id, 154 citing R v Field 64 LJMC 158, 160.
[39] Holland v Jones [1917] HCA 26; (1917) 23 CLR 149.
[40] See Phipson on Evidence, para 55.
[41] Re Cooper (1876) 2 VLR, 182.
[42] Saul v Manon [1980] 2 NSWLR 314; Phipson on Evidence, para 59.
[43] National Trustees v AG (Vic) [1973] VicRp 59; [1973] VR 610: Re Richardson (1920) SASR 25; Re Saxon (1975) 12 SASR 110: Saul v Menon [1980] 2 NSWLR 324; Cross on Evidence, para 7.18.
[44] Phipson on Evidence, para 59.
[45] Glenister v Glenister [1945] P 30, 36.
[46] But not the limits for extraordinary periods of gestation—Phipson on Evidence, para 59.
[47] Lenthalf v Powell [1930] SAStRp 3; (1930) SASR 13.
[48] Hough v Ah Sam (1912) 15 CLR 452.
[49] Saint Leger v Bailey [1962] TASStRp 14; [1962] Tas SR 131.
[50] Re Schwerdt [1939] SAStRp 55; [1939] SASR 333.
[51] McQuaker v Goddard [1940] 1 KB 687.
[52] Parker v R [1912] HCA 29; (1912) 14 CLR 681.
[53] See Cross on Evidence, para 7.10; Wigmore on Evidence vol 9, para 2581. The trustworthiness of that class of instrument having been accepted, a presumption of accuracy of such instruments applies so that the reading of such instruments is prima facie evidence of the facts which it purports to register. See also Porter v Kolodzeij [1962] VR 75-8 where Herring CJ declined to apply the principles to a breathalyser. The presumption has been applied to a weighbridge, loadometer, and to an amphometer; Zappia v Webb [1974] WAR 15.
[54] [1951] HCA 5; (1950-1951) 83 CLR 1.
[55] id, 197. See also McTiernan J id, 208.
[56] [1960] TASStRp 2; [1960] Tas SR 6, 8, 14.
[57] Courts, however, have declined to take judicial notice of the times of sunset and sunrise: Collier v Nokes (1849) 2 Car and Kir 1012: Tutton v Darke, Nixon v Freeman (1816) 5 H and N 647.
[59] id, 55, 56.
[60] Denver v Cosgrove (1972) 3 SASR 130, 133; Pope v Ewendt (1977) 17 SASR 45, 48-9; Elrick v Terjesen [1947] VicLawRp 63; [1948] VLR 184, 188-9—knowledge gained from a previous case; Kent v Scattini [1961] WAR 74, 76. See also West v Sprinkhuizen [1961] Qd R 313 but cf Hansen v Appoo [1974] Qd R 259, 270-1.
[61] Black v Goldman [1919] ArgusLawRp 109; [1919] VLR 689, 692; Hughes v Bradfield [1949] QWN 46.
[62] Simpson v Fraser (1894) 5 QLJ 89, 92 (Griffin CJ); Carberry v Cook [1906] HCA 33; (1906) 3 CLR 995, 996; Ex parte Meer Houssain (1899) 15 WN (NSW) 286.
[63] Cradington v Cooney [1902] QSR 176; Union Bank of Australia Limited v Broom [1904] QSR 215; Le Cocq v McErvale [1907] ArgusLawRp 151; [1908] VLR 69; Ex parte Smith [1904] NSWStRp 5; (1904) 4 SR (NSW) 110; Ex parte Johnson (1920) 38 WN (NSW) 49; James v Treloar [1922] SAStRp 56; (1922) SASR 536. See also Warren v Pilkington [1960] TASStRp 2; [1960] Tas SR 6.
[64] See PB Carter, ‘Judicial Notice: Related and Unrelated Matters’, in E Campbell and L Waller (ed) Well and Truly Tried, Law Book Co, Sydney, 1982, 88; cf Lord Widgery CJ in Wetherall v Harrison [1976] 1 QB 773, 777.
[65] For example, evidence over a period of three years that meat had been continually taken from a certain meat works (and see Nokes. 67)—Cronau v Cahill (1952) QSR 183.
[66] National Trustees etc Co v A-G [1973] VicRp 59; [1973] VR 610, 612, where McInerney J had regard to evidence in previous cases about the existence of inflation. See also R v Savidant (1946) 19 MPR 448.
[67] Davey v Harrow Corporation [1957] 2 WLR 941, 944.
[68] Nokes, 59.
[69] Re Rosher [1884] UKLawRpCh 141; (1884) 26 Ch D 801.
[70] Brillant Gold Mining Co v Craven (1898) 9 QLJ 144; see also Phipson on Evidence, 51 and Cross on Evidence, para 7.13.
[71] Davey v Harrow Corporation [1958] QB 60.
[72] Nokes, 68 and cases there cited.
[73] Brandao v Barnett (1846) 12 CI and F 787, 805: [1846] EngR 983; 8 ER 1622 (Stephen J), Majeau Carrying Co Pty Ltd v Coastal Rutile Ltd (1973) 129 CLR 48, 54-60.
[74] [1972] VicRp 2; [1972] VR 29.
[75] id, 34; cf Whitmore v Warding [1974] SASR 312 where Wells J declined to take judicial notice of the scientific name or names of Indian Hemp.
[76] [1941] HCA 22; (1941) 66 CLR 277, 283-284. Williams J commented briefly:
The mind of a dipsomaniac, suffering from toxaemia and cirrhosis of the liver, not to mention several gastric ulcers, must have been a congenial ground for the rapid growth of the obsession. (id, 293).
[77] See generally, JD Holmes KC, ‘Evidence in Constitutional Cases’ (1949) 23 ALJ 235: P Brazil, ‘The Ascertainment of Facts in Australian Constitutional Cases’ (1970-71) 4 FL Rev 65-71: SH Kadish, ‘Judicial Review in the High Court and the United States Supreme Court’ (1959) 2 MUL Rev 127: PH Lane, ‘Facts in Constitutional Law’ (1963) 37 ALJ 108: L Zines, The High Court and the Constitution, Butterworths, Sydney, 1981 319: WA Wynes. Legislative, Executive and Judicial Powers in Australia, 5th edn, Law Book Co, Sydney, 1976, 46-7.
[78] See Australian Communist Party v The Commonwealth [1951] HCA 5; (1950-51) 83 CLR 1, 256 (Fullagar J) and Stetthouse v Coleman [1944] HCA 36; (1944) 69 CLR 457, 469.
[79] See Australian Communist Party v The Commonwealth [1951] HCA 5; (1950-51) 83 CLR 1, 254, 267, 276 (Fullagar and Kitto J). It may be argued, however, that their Honours were of the view that the only facts that were relevant were those of a type of which judicial notice should be taken: cf Zines, 313.
[80] Australian Communist Party v The Commonwealth [1951] HCA 5; (1950-51) 83 CLR 1, 225.
[81] [1944] HCA 36; (1944) 69 CLR 457, 469.
[82] It is suggested that this is a correct summation. Certainly in some cases under the defence power formal evidence has been received. See Lane, 110. For example, Jenkins v The Commonwealth [1947] HCA 41; (1947) 74 CLR 400 (evidence about the mining and uses of mica) and Sloane v Pollard [1947] HCA 51; (1947) 75 CLR 445 (evidence about markets for cream, and an agreement between the Australian and United Kingdom Governments for the sale of butter and cheese). Evidence was also led in Airlines of NSW v NSW [No 2] [1965] HCA 3; (1965) 113 CLR 54; Bank of NSW v Cth (Bank Nationalisation Case) [1948] HCA 7; (1948) 76 CLR 1; Marcus Clarke v Cth [1952] HCA 50; (1952) 87 CLR 177. Note also the complaints about the lack of evidence in Wilcox Mofflin Ltd v NSW [1952] HCA 17; (1952) 85 CLR 488; Hume v Higgins [1949] HCA 5; (1949) 78 CLR 116; Holmes, 236; Zines, 310-312; Brazil, 71. As to s 92 cases, see Armstrong’s Case [No 2] [1957] HCA 55; (1957) 99 CLR 28; Uebergang v Australian Wheat Board [1980] HCA 40; [1980] 54 ALJR 581: M Pearce, ‘Case Note’ (1981) MUL Rev, 274. Note, however, the res judicata problems this raises—Commonwealth Freighters v Sneddon [1959] HCA 11; (1959) 102 CLR 280.
[83] Deputy Commissioner of Taxation v WR Moran Pty Ltd [1939] HCA 27; (1939) 61 CLR 735, 806.
[84] James v Cowan (1932) AC 542, 555.
[85] [1954] HCA 80; [1954] 91 CLR 136, 140-3.
[86] [1952] HCA 50; (1952) 87 CLR 177, 217.
[87] [1938] HCA 38; (1938) 60 CLR 263, 293-9.
[88] id, 299.
[89] [1916] HCA 36; (1916) 21 CLR 433, 459.
[90] See also Holmes, 236 and cases there cited. A recent case where extensive use appears to have been made of knowledge and writings on developments in international affairs is Koowarta v Bjelke Petersen [1982] 57 ALJR 625. In Clark King and Co Pty Ltd v Australian Wheat Board [1978] HCA 34; (1978) 21 ALR 1 a very informal approach was taken. Zines, 320, described the procedure as follows:
The Solicitor-General presented to the court some material consisting of legislation, treaties, excerpts from the Australian Year Book some statistics and so on ... When the Solicitor-General submitted the material, the Chief Justice expressed doubts as to the status of ‘this bundle of papers’ but said it could be left with the associates so that the judges could look at it ‘if we are inclined’. He added that the action taken by the court in that regard should not be regarded as a precedent (Transcript, 93).
The next day counsel for the plaintiff mentioned he had some papers, including draft reports of the Industries Assistance Commission, which were critical of the Wheat Stabilisation Scheme under consideration. He asked whether the Judges would find them helpful. The Chief Justice at first expressed the view that the material was not relevant, but later asked whether ‘if anyone has a change of heart we can get it’. Counsel agreed (transcript 157). In the upshot Stephen J relied extensively for one part of his reasoning on the draft Industries Assistance Commission Report. It was not mentioned by Mason and Jacobs JJ, (ibid 118-9).
[91] [1944] HCA 36; (1944) 69 CLR 457, 469.
[92] [1940] AC 838, 849; [1940] UKPCHCA 3; 63 CLR 338, 341. There was support from the Privy Council for the view that the court could examine the record of the conference which gave rise to the legislation in deciding what was the purpose and ultimate effect and function of the legislation.
[93] (1939) 61 Canadian LR 735, 793 (1939) AC 117, 130; (1938) 2 DLR 81. The Privy Council said that the court must take into account matters which may be judicially noticed and ‘may in a proper case require to be informed by evidence’.
[94] [1959] HCA 11; (1959) 102 CLR 280, 292 stating that ‘it deals with the question’.
[95] Breen v Sneddon [1961] HCA 67; (1961) 106 CLR 406, 411.
[96] PH Lane, ‘Facts in Constitutional Law’ (1963) 37 ALJ 108. The distinction was drawn by Professor KC Davis—see KC Davis, ‘Judicial Notice’ (1955) 55 Cal L Rev, 945, 946-7.
[97] (1876) 2 QBD 44, 61-2.
[98] [1884] UKLawRpKQB 93; (1884) 13 QBD 832.
[99] id, 833.
[100] See, for example, the discussion in Warren v Pilkington [1960] TASStRp 2; [1960] Tas SR 6, 9ff; Saul v Menon [1980] NSWLR 314, 325.
[101] [1927] SAStRp 38; [1927] SASR 370, 372.
[102] cf Phipson on Evidence, para 59.
[103] See Carter, 89-90. Carter also argues, however, that the jury (or magistrate) notice is not mandatory.
[104] See Evidence Act: (SA) s 64; (Tas) s 67; (WA) s 72. Evidence Ordinance (Singapore) as applied in Christmas and Cocos (Keeling) Islands s 45 and s 57(2).
[105] Evidence Act 1910 (Tas) s 67; Evidence Act 1906 (WA) s 72.
[106] Evidence Act 1929 (SA) s 64—which also refers to calendars. Note in stating that the material is ‘evidence’ the section departs from the conventional view of judicial notice
[107] Evidence Ordinance s 57.
[108] Cavanett v Chambers [1968] SASR 97—which followed Chambers v Sampson Unreported, SASC (14 March 1966).
[109] It was held that the magistrate should not have informed himself on issues relevant to blood alcohol and driving ability; power used in Fairbank v Jones (1975) 10 SASR 367 (external physical characteristics of a rock lobster) and Slatter v Kyalde Pty Ltd (1979) 22 SASR 196, 202-3 (actuarial tables).
[110] Evidence Act: (Qld) s 66(3); (WA) s 46A. Proof of Sunrise and Sunset Act 1923 (SA) s 2 and 3.
[111] Evidence Act: (SA) s 65 (b) and (c); (NT) s 64. See also Evidence Act: (NSW) s 65; (Tas) s 59. Evidence Ordinance: (ACT) s 92; (Christmas and Cocos (Keeling) Islands) s 34, 84, 88.
[112] Evidence Act 1977 (Queensland) s 65. Section 65(1) expressly includes certificates purporting to be signed by the Surveyor-General. See also Evidence Ordinance (ACT) s 92.
[113] Evidence Act 1977 (Queensland) s 65(2).
[114] Section 36. Government produced maps presumed to be accurate (s 84).
[115] Evidence Act 1910 s 59. (New section substituted by s 3 Evidence Amendment Act (No 2) 1982).
[116] Evidence Act 1929 (SA) s 62 and Evidence Act 1939 (NT) 62. See also Vagrants Gaming and Other Offences Act 1931-1978 (Qld) s 550) and Evidence Act: (SA) s 63; (NT) s 62A.
[117] Re Richardson [1920] SASR 24, 39—strictly applying the reasoning of Isaacs J in Holland v Jones id, 39. See also National Trustees v AG (Vic) [1973] VicRp 59; 1973 VR 610.
[118] The Commonwealth Evidence Act contains a section which deals with the authentication of material produced by the Commonwealth Statistician but not its use in court (s 10A).
[119] Phipson on Evidence, para 59.
[120] Evidence Ordinance (Singapore) s 62. It permits evidence to be given of the course of business.
[121] See Acts Interpretation Act: (Cth) s 29; (Qld) s 391; (SA) s 33; (Tas) s 38; (Vic) s 25. Interpretation Act: (NSW) s 27; (WA) s 31(3); (NT) s 25. Evidence Ordinance 1971 (ACT) s 93. Christmas and Cocos (Keeling) Islands—Evidence Ordinance (Singapore) s 16, s 115(f); Acts Interpretation Act 1901 (Cth) s 18; Interpretation Ordinance (Cocos (Keeling) Islands) 1955 s 6; Interpretation Ordinance (Christmas Island) 1958, s 6.
[122] s 93.
[123] Commonwealth Family Law Regulations (1976) Regulation 47. See n 121.
[124] See above, para 269 (App C).
[125] R v McIvor [1883] NSWLawRp 12; (1883) 4 LR (NSW) 43.
[126] Sutherland v Cooley [1898] ArgusLawRp 117; (1898) 24 VLR 410 and Teague v Farrell [1880] VicLawRp 240; (1880) 6 VLR (L) 480.
[127] The principal exceptions are the Australian Capital Territory and South Australia.
[128] s 4(1) refers to
(a) the official signature of any person who holds or has held the office of Governor-General, Minister of State, President of the Senate, Speaker of the House of Representatives, Secretary to the Federal Executive Council, Justice of the High Court. Clerk of the High Court, Registrar or Deputy Registrar of the High Court, President or Deputy President of the Commonwealth Court of Conciliation and Arbitration, President, Deputy President or other member of the Commonwealth Conciliation and Arbitration Commission, Industrial Registrar or Deputy Industrial Registrar or President or Judge or member of any Federal Court, or any office to which the Governor General, by order published in the Gazette, declares this section to apply; and
(b) the official seal of every such person or court or of the Commonwealth Conciliation and Arbitration Commission. A recent amendment to the Evidence Act, the Statute Law (Miscellaneous Provisions) (No 2) Act 1983, adds two subsections to s 4 to deal with the situation where an office has ceased to exist.
[129] [1917] HCA 26; (1917) 23 CLR 149.
[130] id, 155.
[131] s 5.
[132] See also Evidence Act: (Cth) s 4; (NSW) s 24, 24A; (Qld) s 42; (Tas) s 47; (Vic) s 79; (WA) s 56; (NT) s 36. Evidence Ordinance 1960 (Norfolk Island) s 4. Evidence Ordinance (Singapore) s 57(1)viii.
[133] Ministers of the Crown, the Solicitor-General, or any other office declared by the Governor and published in the Gazette—section 24A Evidence Act 1898 (NSW).
[134] [1973] VicRp 46; [1973] VR 462, 465.
[135] Waldron v Bird [1974] VicRp 61; [1974] VR 497, 503—considering Evidence Act 1958, s 79.
[136] The definitions derive from the Federal Council of Australasia Evidence Act 1886. See above n 32.
[137] See also Cross on Evidence, para 7.13. It must be remembered, however, that as with other jurisdictions, there is specific legislation which directs courts to take judicial notice of signatures and appointments of officials named in that legislation.
[138] Evidence Act (SA) s 38(2).
[139] s 39.
[140] s 37 and 38(1).
[141] Evidence Act: (Cth) s 3: (Qld) s 41; (Tas) S 45-46: (Vic) s 78; (WA) s 54, 55. Christmas and Cocos (Keeling) Islands Evidence s 57(1)vi.
[142] Viscount Melville’s Case (1806) 29 State Tr 549; Halsbury, para 109; Phipson on Evidence, para 55.
[143] This results from the definitions of Australasian State and Australasian colony—see above.
[144] Singapore Ordinance s 57(1)(vi). In Queensland, the legislation applies only to the seal of that State—reliance otherwise being placed on the Commonwealth legislation. See also Law Reform Commission of Queensland, Report No 19, The Law Relating to Evidence 1975, Brisbane, 30.
[145] Lake v King [1845] EngR 139; (1668-70) 1 Wms Saund 131b; Halsbury’s, para 105.
[146] R v Wilde (1670) 1 Lev 296; Birt v Rothwell (1697) 1 Ld Raym 210, 343; Halsbury’s, para 105; Phipson on Evidence, para 52.
[147] The word Parliament is a reference to Parliaments of the United Kingdom of ‘Britain, Ireland, England, Scotland, and Northern Ireland’.
[148] Votes and Proceedings etc record what is done by the House, not what was said—E May, Treatise on The Law. Privileges, Proceedings and Usage of Parliament, 18th edn, Butterworths, London, 1971, 243.
[149] Federal Parliament—1905 s 7; State Parliament—State and Territorial Laws and Records Recognition Act 1901 s. 11.
[150] Evidence Act 1905 s 7(2).
[151] Evidence Act 1958 (Vic) s 77; Evidence Act 1906 (WA) s 53(1)(a); Evidence Act 1977 (Tas) s 44.
[152] Respectively—a direction or command (Jowitt, 1290); an order or authority to do some act (Jowitt, 380); an act done by the sovereign power of a country or its agent (Jowitt, 36).
[153] See Evidence Act 1905 (Cth) s 5; State and Territorial Laws and Records Recognition Act s 6 and 7. Domestic Law and Instruments—Evidence Act: (Cth) s 4A; (Qld) s 43; (SA) s 37. Interpretation Act 1897 (NSW) s 34. Evidence Ordinance 1960 s 5(1). Christmas Island Interpretation Ordinance 1958 s 9. Cocos (Keeling) Islands Interpretation Ordinance 1955 s 9. Proclamations, Treaties and other Acts of State of Foreign Countries—Evidence Act: (NSW) s 17, 15; (Qld) s 68, 44; (SA) s 38(1) and (3); (Tas) s 53-4; (Vic) s 48; (WA) s 63; 64 (NT) s 27; (Norfolk Island) s 17, 15. Evidence Ordinance 1971 (ACT) s 47(1)(c), s 41. Evidence Ordinance (Singapore) s 78(d), 79.
[154] Canadian Federal/Provincial Task Force, Report on Uniform Laws of Evidence. Carswell Co Ltd, Toronto, Canada, 1982.
[155] Above para 273 (App C—text accompanying n 104-10).
[156] Above para 273 (App C—text accompanying n 111-16).
[157] Above para 273 (App C—text accompanying n 117-8).
[158] Above para 273 (App C—text accompanying n 119-23).
[159] Above para 266 (App C).
[160] Singapore Evidence Ordinance s 57.
[161] See above Reddy v Ross [1973] VicRp 46; [1973] VR 462 and Waldron v Bird [1974] VicRp 61; [1974] VR 497, 503.
277. Introduction. In this chapter the rules relating to the authentication and identification of evidentiary material are considered. The rules relate to different types of evidence but share the common feature of requiring evidence confirming that the evidentiary material is what it purports to be or what the party adducing it claims it to be.[1]
278. Examples.
• Writings. When a patty wishes to tender a writing which it maintains is relevant to the issues in the case it is expected to adduce evidence authenticating the writing. That evidence will vary according to the nature of the writing. In essence, however, the patty is expected to adduce evidence that the writing is what it purports to be or what the patty claims it to be. The form of the authenticating evidence will vary—it may be evidence by the author of the writing, the person who signed the agreement, an eyewitness, a person familiar with the writing, comparison of writing by an expert in handwriting and by non-experts etc.[2] Evidence is not required, however, to authenticate ‘ancient documents’ produced from proper custody—they are presumed to be authentic. At common law an ancient document was a document more than 30 years old. The common law or its equivalent applies in Western Australia, Tasmania and the Christmas and Cocos (Keeling) Islands. Elsewhere legislation has reduced the required age to 20 years.[3] In some courts in some jurisdictions, rules for civil trials enable documents produced from proper custody to be read without further proof if they appear genuine and there is no objection. If objection is taken the costs of proving the document will be paid by the objecting party unless the judge otherwise orders.[4] Special proof requirements must be satisfied in relation to wills.[5] The common law requirements as to proof of other documents required by law to be attested or which were attested were modified uniformly by legislation. At common law, it was necessary to call one attesting witness unless this was impossible. As to the documents required by law to be attested, legislation permits evidence of others to be given verifying the signatures, notwithstanding an attesting witness may be available.[6] As to documents that happen to be attested, the instrument may be proved as if there were no attesting witness.[7] The ACT Ordinance,[8] however, goes further and in detailed provisions dispenses with evidence verifying the attesting signatures (where attestation is required as a matter of law—in cases other than wills). The provisions vary according to whether the document was executed in Australia, a Commonwealth country or another country and operate where the attesting witness comes within specified classes—legal practitioner, judge, notary public, mayor, consular representative. It also dispenses with the need to lead evidence that the attesting witness was of the class alleged in the document.[9]
• Identifying Objects. When a party wishes to tender a physical object—for example, the alleged murder weapon—it is expected to adduce evidence establishing or supporting a link between the object and the issues.
• Evidence Produced by Devices or Systems. It is well established that for a party to be able to adduce evidence produced by a machine or other device or system it must give evidence of the accuracy and reliability of the device or system and, where appropriate, the connection between the evidence produced by the device and the issues in the case. Examples include:
― Bankcard. In R v Weatherall[10] Justice Walters considered the admissibility in evidence of a bankcard and a computer print-out of bankcards for re-issue to people who held bankcards initially issued by the ANZ Bank. He ruled the evidence admissible after receiving detailed but non-technical evidence about the nature of the systems, the accuracy and reliability of them and the staff operating them, the length of time they had been functioning and evidence about the operation of the card producing system from which he inferred ‘the trustworthiness and authenticity’ of the system.[11]
― Scientific and Technical Instruments. A ‘foundation ... must be laid’[12] for the admission of the results of the use of scientific or technical instruments. The foundation must support the conclusion that the instrument is of a kind that is generally ‘trustworthy’ and its ‘correctness’ on the occasion in question.[13] How the foundation is laid will vary with the instrument. Some instruments are widely used, well known and widely relied upon as accurate—speedometers, thermometers, scales. Judicial notice is taken of the usual substantial accuracy of such instruments and a presumption as to their accuracy on the occasion in question is said to arise.[14] Judicial notice and the presumption, however, may not be sufficient to prove the relevant fact to the satisfaction of the tribunal where, for example, the measurement given just exceeds a permitted limit.[15] The admissibility of the evidence, however, does not require information of the degree of accuracy of the type of instrument. Evidence may also be given in a variety of forms—theoretical, actual use, testing before and after, circumstantial—and by a variety of witnesses—experts, users.[16] There is some doubt, however, whether, if evidence is led of the accuracy of the type of instrument, a presumption arises that it was working accurately on the occasion in question. In Mehesz v Redman[17] Justice White argued that a presumption did arise if there was evidence that the instrument was in a class that was accurate and that the particular instrument, if properly handled, was accurate.[18] Chief Justice Herring stated that it arose once it was established that the instrument was of a kind that was trustworthy.[19] Such a presumption is not mentioned in other discussions of the process.[20] It is suggested however, that whether a ‘presumption’ of accuracy or, perhaps more accurately, an inference arises will depend on the evidence led.
• Recordings of Sight and Sound. Photographs (whether still or moving) may be admitted in evidence being given by some one who took the photograph or some one familiar with the subject-matter linking the photograph with the subject-matter—it represents that which the witness observed.[21] An X-ray picture will require the foundation required for scientific instruments. Other evidence may be used—eg, videotape of a riot; evidence given linking tape with event by a witness deposing to tape coming from a team sent to a particular location, at particular time and date.[22]
In the case of tape recordings, it has been held that they are admissible—provided the accuracy of the recording is proved and the voices recorded properly identified.[23] What is meant by the requirement of ‘accuracy’ is unclear. In Maqsud Ali much of the tape was indecipherable.[24] In R v Robson[25] defective tape recordings were produced. They were admitted in evidence on evidence being given as to their provenance and history up to the time of their production in court.[26] The challenge made by the accused was as to their authenticity.[27] The trial judge was concerned to establish whether the tapes were ‘original and authentic’. In Conwell v Tapfield,[28] Chief Justice Street stated that evidence of the trustworthiness of the recording and reproduction were, strictly speaking, required:
It will, of course, be a matter for expert evidence, if the question should arise (and in modern times this may become less frequent) as to the efficiency and capacity of the recording equipment to record the sounds. Equally it will be a matter for expert evidence (again if required) to establish the efficiency and capacity of the sound reproducing equipment. But, once the efficiency and capacity of the recording and reproducing equipment is established, or accepted, it appears to me to be clear almost beyond argument, that the best way to ascertain the sounds which were entrapped on the record is to play the record back. The chain of evidence commences with the conversation itself; the first link is the recording equipment; the next link is the record itself; the next link is the sound reproducing equipment; and the other end of the chain is the reproduced sound. Expert evidence is requisite, if not conceded, upon the competence and capacity of the recording and reproducing equipment. Once this has been accepted by the judge by way of a ruling on the voir dire, all three links in the chain, that is to say the recording equipment, the record itself and the reproducing equipment, become admissible in evidence.
As to the quality of the tape, this was held to be relevant to the exercise of the trial judge’s discretion to exclude evidence led by the prosecution.[29] It may be questioned, however, whether judicial notice could not now be taken of the general trustworthiness of tape recordings.
• Radar. In The Statue of Liberty,[30] film of radar echoes, recorded mechanically, were ruled admissible. The parties and court appear to have assumed that the system was accurate and reliable. There was evidence connecting the film to the relevant events. Its admission was opposed, inappropriately, on the ground that it infringed the hearsay rule.
279. Quantum of Proof. There is ample authority on the standard of proof required of conditions precedent for admissibility of relevant evidence—the judge must be satisfied on the balance of probabilities.[31] The issue of the standard of proof required for authentication or identification of proferred evidence does not appear to have been discussed to any great extent in the authorities. In practice the trial judge will admit evidence of objects and other evidence on being given an assurance that evidence capable of demonstrating its connection to the issues will be led. In practice, writings are admitted into evidence on the giving of evidence in chief as to their authenticity—that is, the court proceeds on the basis that it assumes that the evidence will be accepted. With evidence produced by devices or systems, however, the courts appear to have required that the trial judge be satisfied as to the accuracy of the technique and of the particular application of it. Wigmore wrote of the need for ‘preliminary ... testimony’.[32] Chief Justice Burbury commented on the ‘need to have evidence’ but this was with a view to establishing the basis for admissibility. In the case of tape recordings, it has been held in England that a tape challenged as not being the original and authentic tape should be admitted if the prosecution set up a ‘prima facie’ case.[33] A ‘prima facie’ test was adopted because of concern about usurping the jury’s role—it should be for the jury to determine its authenticity.[34] In Australia there has been little discussion. In Conwell v Tapfield,[35] however, it was held that a tape recording could not be admitted unless the judge accepted the competence and capacity of the recording and reproducing equipment.
280. Procedure. As to the procedure to be followed, a voir dire was employed in R v Maqsud Ali,[36] R v Stevenson,[37] R v Weatherall[38] and referred to in Conwell v Tapfield.[39] In R v Gilmore,[40] however, no voir dire was held where the challenge went to the identity of the voice alleged to be that of the accused.[41] The use of the voir dire to enquire into the authenticity of a tape recording should be compared with the authorities that a voir dire is not held where the accused denies making an alleged confession.[42]
281. Identity and Writing. The legislation of Christmas and the Cocos (Keeling) Islands addresses some of the issues:
• Identity. Evidence establishing the identity of a thing or person is ‘deemed relevant’ (and admissible) where that identity is relevant.[43]
• Authentication of Signatures and Writing.[44] The legislation requires that the signature or handwriting of so much of the document alleged to be written by a particular person must be proved.[45] The legislation and that of other jurisdictions permits comparison with proven handwriting by witnesses. The legislation of the ACT, Northern Territory and New South Wales refers only to a comparison by the court. It does not refer to witnesses.[46]
282. Authentication of Document. Commonwealth, State and Territory legislation contain many varied provisions which assume the need to authenticate documents and which are designed to facilitate, that task. Reference is made elsewhere to these many and varied provisions in the discussion of judicial notice, the hearsay rule, and secondary evidence of documents. The legislation varies in its approach—specifying the evidence required to authenticate the document produced, dispense with evidence of authentication for categories of documents, directing the taking of judicial notice of seals and signatures and raising presumptions of due signing and sealing. Reference has been made to the legislation modifying the presumptions relating to ancient documents and the authentication of attested documents.[47] Other provisions to note which are not common are:
• Business Records—Commonwealth, New South Wales and Tasmania. In this legislation it is provided that documents and copies ‘may be authenticated in such manner as is prescribed or the court approves’.[48] It is also provided that in deciding questions of admissibility inferences may be drawn from the document.[49]
• South Australia. There is legislation[50] designed to admit first hand documentary hearsay in documents. No authentication is required initially—it is enough that the document be ‘apparently genuine’. A discretion to exclude is provided.[51]
• Business Records—Tasmania and South Australia. In Tasmania,[52] a ‘writing purporting to be a memorandum or record of fact’ and in South Australia[53] ‘an apparently genuine document’ are admissible if business records.[54]
• Other Legislation. Some hearsay legislation deals with specific types of document and dispenses with evidence authenticating them or reduces the amount of evidence needed:
― Telecommunications.[55] All jurisdictions but NSW, Victoria, ACT; civil trials only, except in South Australia.
― Transportation Documents.[56] The provisions differ. The New South Wales and West Australian provisions apply only in criminal proceedings.
― Statements of Wages.[57] Provided for Family Law Regulations,[58] ACT and NT, (all proceedings), NSW (matrimonial and child welfare).
― Certificate of Results of Scientific Tests. Authentication requirement is limited to evidence that the person who signed the certificate conducted an examination.[59]
Also the documentary hearsay legislation generally permits inferences to be drawn from the form or content of the document in question and any other circumstance in deciding its admissibility—this includes issues such as who was the maker of the statement in the document.
283. Devices and Systems. In Victoria, Queensland, South Australia and the ACT, special legislation was enacted which was directed to the proof of the accuracy and reliability of computer systems and permits the tender of computer output.[60] While it addresses the issue of the evidence required to establish accuracy and reliability it is intended to enable proof of computer data and output notwithstanding rules such as the hearsay rule and the ‘best evidence’ rule. A number of differences exist in the legislation.[61] The legislation enables evidence to be given authenticating the output by means of a certificate. In addition, the legislation, except in South Australia, enables the court to draw inferences from the output as to satisfaction of the conditions of admissibility.
284. The Commonwealth, New South Wales and Tasmanian business records legislation[62] renders a statement of a fact in a document admissible as evidence of a fact provided the document forms part of a record of business and the statement was made in the course of or for the purposes of the business. The statement must also have been made by or derived from the information supplied by a qualified person or, which is relevant to this chapter, reproduce or be derived from one or more devices ‘designed for and used for the purposes of the business in or for, recording, measuring, counting or identifying information, not being information based on information supplied by any person.’ The legislation goes on to list the rules that are abrogated and states that it ‘does not make admissible a statement that is otherwise inadmissible.’ There is no mention in the list of any rules requiring evidence of the accuracy of devices and thus there is at best uncertainty as to whether the legislation removes any need for evidence of reliability or accuracy before the evidence may be admitted.[63]
[1] EM Morgan, Basic Problems of Evidence, 4th edn, Practising Law Institute, New York, 1963, 378.
[2] JA Gobbo, D Byrne & JD Heydon, Cross on Evidence, 2nd Aust edn, Butterworths, Sydney, 1979, para 21.16; JH Buzzard, R May & MN Howard, Phipson on Evidence, 12th edn, Sweet & Maxwell, London, 1976, para 1741; PK Waight & CR Williams, Cases and Materials on Evidence, Law Book Co, Sydney, 1980, 531ff. (Note—also evidence that ‘X’ was the only person who knew the matters alleged: JH Chadbourn (ed) Wigmore on Evidence, Little, Brown & Co, Boston, 1978, vol 7, para 2148). SA Schiff, Evidence in the Litigation Process, Carswell Co, Toronto, 1978, vol 2, 737, argues that the purported signature on a document is not sufficient because it is hearsay. He also states that there is little elaborated doctrine in Canada concerning authentication and that what there is forms part of the law relating to relevance (id, 736fn. Note also Re Action Waste Collections [1981] VicRp 66; [1981] VR 691, 700.
[3] Evidence Act 1898 (NSW) s 16A; Evidence Act 1977 (Qld) s 62; Evidence Act 1929 (SA) s 34f; Evidence Act 1958 (Vic) s 58: Evidence Ordinance 1971 (ACT) s 86; Evidence Act (NT) s 26H.
[4] County Court Rules (Vic) O 23 r 10; Magistrates’ Court Rules (Vic) r 124(5).
[5] Cross on Evidence, para 21.19.
[6] Except in the Christmas and Cocos (Keeling) Islands.
[7] Evidence Act 1898 (NSW) s 35; Evidence Act 1977 (Qld) s 60: Evidence Act 1929 (SA) s 31; Evidence Act 1910 (Tas) s 107; Evidence Act 1958 (Vic) s 147; Evidence Act 1906 (WA) s 30; Evidence Ordinance 1971 (ACT) s 16(1); Evidence Act (NT) s 23.
[8] Evidence Ordinance 1971 (ACT) s 17, 18.
[9] id, s 19.
[11] id, 240.
[12] Philpott v Boon [1968] TASStRp 12; [1968] Tas SR 97, 99-100 (Burbury CJ).
[13] JH Chadbourn (ed) Wigmore on Evidence, Little, Brown & Co. Boston, 1970, vol 3, para 795; Mitchell v WS Kimpton & Sons Pty Ltd [1971] VicRp 70; [1971] VR 583, 585 (Full Court); Redman v Klan (1979) 20 SASR 343; Thompson v Kovacs [1959] VicRp 40; [1959] VR 229 (speedometers); Giles v Dodds [1947] VicLawRp 35; [1947] VLR 465 (scales); Barker v Fauser [1962] SASR 176 (weighbridge); Cheatle v Considine [1965] SASR 281; Crawley v Laidlaw, [1930] ArgusLawRp 50; [1930] VLR 370 (loadometer); Zappia v Webb [1974] WAR 15; Young v Owen (1972) 19 FLR 70 (NTSC) (amphometer); Porter v Kolodzeij [1962] VicRp 11; [1962] VR 75 (breathalyser); Mehesz v Redman (1979) 21 SASR 569 (auto-lab data analyser); and (No 2) (1980) 26 SASR 244, 246, 252; Dunsmore v Elliott (1981) 26 SASR 496, 498 (radar unit).
[14] Mitchell v WS Kimpton & Sons Pty Ltd [1971] VicRp 70; [1971] VR 583, 585; Mehesz v Redman (No 2) (1980) 26 SASR 244, 251-2 (White J); Dunsmore v Elliott (1981) 26 SASR 496, 499 (White J); Porter v Kolodzeij [1962] VicRp 11; [1962] VR 75, 78; Giles v Dodds [1947] VicLawRp 35; [1947] VLR 465, 467.
[15] Barker v Fauser [1962] SASR 176, 178-9; Mitchell v WS Kimpton & Sons Pty Ltd [1971] VicRp 70; [1971] VR 583, 585; Zappia v Webb [1974] WAR 15, 18-9.
[16] See cases above. particularly Barker v Fauser [1962] SASR 176; Cheatle v Considine [1965] SASR 281; Zappia v Webb [1974] WAR 15; Mehesz v Redman (No 2) (1980) 26 SASR 244; Dunsmore v Elliott (1981) 26 SASR 496. Judicial notice and evidence may be combined: Zappia v Webb [1974] WAR 15, 18.
[17] (1980) 25 SASR 244, 252.
[18] See also Dunsmore v Elliott (1981) 26 SASR 496, 499.
[19] Porter v Kolodzeij [1962] VicRp 11; [1962] VR 75, 78.
[20] See, for example, Burbury CJ in Philpott v Boon [1968] TASStRp 12; [1968] Tas SR 97 and Wigmore on Evidence, para 795. Query whether there may be some support from Cheatle v Considine [1965] SASR 281.
[21] Wigmore on Evidence, para 795: R v Tolson [1864] EngR 74; (1864) 4 F & F 103: 176 ER 488.
[22] Kajala v Noble [1982] Crim L Rev 433.
[23] R v Maqsud Ali [1966] 1 QB 688: cited with approval R v Matthews and Ford [1972] VicRp 1; [1972] VR 3, 11: R v Nilson [1968] VicRp 26; [1968] VR 238, 241.
[24] [1966] 1 QB 688. 702.
[25] [1972] 1 WLR 651: defective tapes admitted in R v Menzies [1982] NZCA 19; [1982] 1 NZLR 40.
[26] id. 653; R Cross, Evidence, 5th (English) edn, Butterworths, London, 1979, 13-4.
[27] id. 654.
[28] [1981] 1 NSWLR 595. 598-9.
[29] R v Robson [1972] 1 WLR 651, 656; cf the uncertainties in Canada: Schiff, 768-9.
[31] See below, para 293.
[32] Wigmore on Evidence, para 795.
[33] R v Robson [1972] 1 WLR 651, 653-4: reference is made to a balance of probabilities test and to a prima facie test. The prima facie test is cited in Cross (5th Eng edn) 13-4 but compare the evidence led regarding video tapes in Kajala v Noble [1982] Crim L Rev 433.
[34] R v Robson [1972] 1 WLR 651, 656.
[35] [1981] 1 NSWLR 595, 599.
[36] [1966] 1 QB 688.
[39] [1981] 1 NSWLR 595, 599.
[41] It does not appear from the report whether the use of a voir dire was discussed at the trial. The accused, however, sought to rely on the evidence of an expert in spectography. This evidence was ruled inadmissible as not being in a field of recognised expertise. In the other reported cases referred to above there is no discussion of procedures to be followed—but they concerned non-jury trials.
[42] See below, para 327.
[43] Evidence Ordinance 1955 (Singapore) as applied to the Christmas and Cocos (Keeling) Islands, s 9, 85.
[44] Evidence Acts: (Qld) s 59; (SA) 530; (WA) s 31; (Tas) s 108: (ACT) s 96; (NT) s 96; Christmas and Cocos (Keeling) Islands s 67.
[45] ibid.
[46] There are other differences—ibid.
[47] Note also that there is Queensland legislation that dispenses with authentication of certain standard rules, codes and signatures—production of copy purporting to be printed by Government Printer is enough.
[48] Evidence Act 1905 (Cth) s 7L; Evidence Act 1898 (NSW), 14C0; Evidence Act 1910 (Tas) s 40M.
[49] Evidence Act 1905 (Cth) s 7H; Evidence Act 1898 (NSW) s 14CL; Evidence Act 1910 (Tas) s 40J.
[50] Evidence Act 1929 (SA) s 45b.
[51] Relevant factors are whether the maker should be called, whether prejudice outweighs probative value and whether it would be otherwise contrary to the ‘interests of justice’. The section also gives guidance as to the assessment of weight.
[52] Evidence Act 1910 (Tas) s 40A.
[53] Evidence Act 1929 (SA) s 45a.
[54] Various other conditions must be satisfied and discretions to exclude are included.
[55] Evidence required that it was received from a telegraph office—Evidence Act 1977 (Qld) s 75-77; Evidence Act 1929 (SA) s 53-59; Evidence Act 1910 (Tas) s 41-s 43; Evidence Act 1906-79 (WA) s 82-88; Evidence Act (NT) s 50-56
[56] ‘Purporting to be’—Evidence Acts: (Tas) s 81Q; (SA) s 45; (NT) s 35; (WA) s 41A; Crimes Act 1900 (NSW) s 419A.
[57] ‘Purporting to be signed by employer’—Evidence Acts: (NSW) s 43A; (NT) s 42A; (ACT) s 38.
[58] Family Law Regulations 1976 (Cth) reg 93.
[59] Available at inquests and indictable offences triable summarily—Evidence Ordinance 1971 (ACT) s 75; Crimes Act 1900 (NSW) s 414A; Evidence Act 1958 (Vic) s 75A. (Note the power to require attendance of certifier).
[60] Evidence Acts: (SA) s 34c, s 34d; (NSW) s 14A-14C; (NT) s 26D, 26F, 26J, (WA) s 7913, 79C, 79D.
[61] See Evidence Acts: (Vic) s 5513(2); (Qld) s 95(2); (SA) s 59(b)(2). (ACT) s 42; Note: legislation was recently enacted in South Africa (Computer Evidence Act 1983) which is similar to the South Australian legislation. A significant difference, however, is that it distinguishes the authentication question from the exclusionary rules question. It provides for detailed evidence to be given about the reliability of the systems and their input for the purpose of authenticating a print-out (s 2). It later provides for the print-out to be admitted as an exception to the hearsay rule (s 3).
[62] Evidence Act 1905 (Cth) s 713; Evidence Act 1898 (NSW) s 14CE; Evidence Act 1910 (Tas) s 40A.
[63] Note: the legislation states that the reliability of the device is a matter relevant to the estimation of the weight to be given to the evidence: Evidence Act 1905 (Cth) s 7F; Evidence Act 1898 (NSW) s 14CI; Evidence Act 1910 (Tas) s 40G. The legislation thus either assumes that such evidence will be led or will force parties to do so.
285. Two Standards. Despite the occasional expression of doubt,[1] it is now well established that there are two[2] general standards of proof at common law:[3]
• proof ‘on the balance of probabilities’ or ‘on the preponderance of evidence’ (the ‘civil standard’). It is normally applied in civil cases and as the appropriate standard for affirmative defences[4] in criminal cases; and
• a higher standard of proof beyond reasonable doubt (the ‘criminal standard’).[5] Any fact in respect of which the prosecution has the onus of proof must be proved to this standard before an accused can be convicted.
286. The Civil Standard. The only significant uncertainties that appear to have arisen concern the civil standard:
• Subjective. There are two fundamentally different approaches that can be taken to analysing the civil standard of proof. The first analyses it as a subjective standard that fixes the minimum strength of belief in a fact that the fact-finder must have before he can find that fact proved. In the words of Sir Owen Dixon:
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality ... Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.[6]
It should be noted that the subjective standard requires a reasonable belief.[7]
• Objective Standard. On the second approach to the standard of proof, the relationship between evidence and conclusion of fact is analysed as an objective one which is often explained in terms of the relative frequency of the events in question—for example, the frequency with which a particular type of accident involving a motor vehicle and pedestrian is caused by the negligence of the driver of the motor vehicle.[8] On this approach, a standard of proof simply fixes the minimum relative frequency with which a particular type of event must occur before a court is entitled to infer that that event occurred in the case in question. In civil cases, it is often quantified as 51 out of 100,[9] so that in the above example, provided accidents of the type in question were caused by the negligence of drivers in at least 51 out of 100 cases, the court would be entitled to find that the driver in the case in question had been negligent. In practice, application of the standard of proof is very much more complex than this. On this approach, it is not possible, in many cases, to state the standard of proof with any precision.
287. Uncertainties. Although Sir Owen Dixon’s comments in Briginshaw are often cited as representing the law in Australia, the language used by many Australian courts appears to be inconsistent with his approach. Frequently, courts use the term ‘on the balance of probabilities’, or one of its synonyms, rather than the expression he used—’reasonable satisfaction’.[10] But the term ‘on the balance of probabilities’ seems more appropriate to describe a particular objective probability than a certain strength of belief. Further Sir Owen Dixon himself used or acquiesced in the use of such expressions.[11] This has given rise to a debate as to whether a subjective or objective standard is to be applied—a debate that continues notwithstanding that the former approach is affirmed from time to time. There are two types of case where the choice could make a difference to the result:
• Serious Cases. Where the civil standard is applied in serious cases, such as those involving allegations of fraud. In those, a subjective standard allows the court to take into account the nature of the case in determining whether it is satisfied to the required standard.[12] On a strict interpretation of an objective standard, that is not possible. The same standard must be applied irrespective of the nature of the case. However, courts that have adopted an objective standard have generally taken the view that the standard is variable.[13] The result is that whatever the approach taken, the court will have some regard to the nature of the case in determining whether it has been proved.
• Cases Where Evidence is Limited. Here the alternatives are significant. In civil cases where the evidence is scant and largely circumstantial, the evidence may be sufficient to establish that a fact in issue is more likely than not, at least on an objective approach, but insufficient to justify a belief in that fact. In TNT Management Pty Ltd v Brooks, Justice Murphy, arguing for an objective approach, gave the following example:
[T]ake a vehicle carrying a driver and two passengers which is driven negligently. It crashes; the petrol tank explodes; driver and passengers are incinerated beyond identification. All three were employees of the truck owner; there is nothing to show which one was the driver and which were the passengers. Suppose the defendant spouses of each sue the owner of the truck under a law which makes the owner liable for negligent driving of the vehicle. In these circumstances, we know that the allegation sought to be proved (that the plaintiff’s spouse was a passenger) is true in two cases, false in one case; but in the absence of any knowledge of which are true and which is false, the judicial process does not resolve the issue against the plaintiff, but applies a standard so much less than certainty that in all three cases proof (including inferences) is accepted as sufficient, although it is known that in one case the allegation sought to be proved is false. All the plaintiffs are entitled to succeed. In each case it is more likely than not (two chances out of three) that the plaintiff’s spouse was a passenger rather than the driver; that is enough, although we know that in one case the spouse was not a passenger but was the driver. We cannot believe in any of the cases that the plaintiff’s spouse was a passenger. It is not necessary that the tribunal believe this, it is sufficient that it is satisfied that on the balance of probabilities the spouse was a passenger.[14]
288. Members of the High Court have differed markedly on the correct approach to take where evidence is scant and circumstantial, particularly in personal injury cases.[15] In these cases, the differences have not been expressed as depending on whether the requirement of belief is an ingredient of the standard of proof. Rather, the dispute appears to be over whether what is required is that there be sufficient evidence to warrant a definite inference that the defendant was negligent. For example, in Holloway v McFeeters Chief Justice Dixon (who, with Justice Kitto, dissented) said:
The state of facts reached by inferences is itself compatible with a number of hypotheses, some of them implying fault on one side, some on the other, some on both sides. Hypotheses of this kind are not inferences. What is required is a basis for some positive inference involving negligence on the part of the driver as a cause of the deceased’s death. The inference may be made only as the most probable deduction from the established facts, but it must at least be a deduction which may reasonably be drawn from them. It need not be an inference as to how precisely the accident occurred, but it must be a reasonable conclusion that the accident in one way or another occurred through the lack of due care on the part of the driver and not otherwise.[16]
On the other hand, according to the majority (Justices Williams, Webb and Taylor):
[I]nferences sufficiently appear from the circumstances to which we have referred that make it at least more probable than not that the unidentified vehicle was being driven in a negligent manner at the time of the accident and that this was the cause of the accident.[17]
But, commenting on these passages (and similar ones from other cases), Eggleston has suggested that the differences are best explained in terms of the requirement of belief:
It would seem, therefore, that there is a fundamental difference of principle underlying what on the surface merely appears to be a difference of opinion on the facts. Those members of the Court who have thought that there was evidence to go to the jury have done so because they regard a balance of probability as entitling a jury to act upon an assumption that the fact is as alleged by the plaintiff. Those who have thought that there was insufficient evidence have regarded a mere balance of probabilities as insufficient to justify a finding, holding that the probabilities must be high enough to warrant a definite inference that the allegations are true. This is not to say that they have taken the matter out of the jury’s hands by substituting their own opinion. They have rather decided that in the circumstances as proved no reasonable man could have a belief in the truth of the allegation.[18]
289. Writing in 1963, Eggleston thought that there was ‘a clear balance of judicial opinion in the High Court’ in favour of the majority’s view in Holloway v McFeeters.[19] But the position is unclear. In Nesterczuk v Mortimore,[20] a majority of the High Court upheld the trial judge’s view that there was inadequate evidence to conclude that either the plaintiff or defendant had been negligent. In reaching that decision, Justice Kitto specifically relied on Sir Owen Dixon’s remarks in Briginshaw[21] that a fact-finder must feel an actual persuasion of a fact before it can be found.[22] He went on to say, however, that:
... in a civil case such as we have here it is enough if the tribunal, on a balance of probability, believes (or thinks, if one prefers that word for the sake of a clearer recognition that no high degree of persuasion is required) that the fact is as alleged . ... where the question at issue is whether A or B or both have been guilty of negligence the law neither requires nor permits the tribunal of fact to hold that both A and B were negligent unless the evidence engenders a belief ‘at least in some low degree’, a ‘feeling of probability’, that that is the truth of the matter.[23]
Acting Chief Justice McTiernan, seems to have preferred the majority’s approach in Holloway,[24] while the judgments of the remaining members of the court seem to be consistent with either approach.[25] Subsequently, the Victorian Full Court in Maher-Smith v Gaw[26] took up the attempted compromise of Justice Kitto:
We think that the passage that his Honour quoted from the judgment of Dixon J, as he then was, in Briginshaw v Briginshaw, supra, has to be read in the context of that case, which of course involved an issue of adultery, and it appears to us, as presently advised, that the proper method in a case of this kind, a running down case, of expressing the burden of proof is, as is invariably done in this Court, by reference to the balance of probabilities. It appears to us that in this context reference to a persuasion of facts resulting in negligence means no more than this: that if the judge is satisfied on the balance of probabilities of the negligence of the defendant, then he has the persuasion to which Dixon, J, referred to Briginshaw v Briginshaw. It may be added that this was the view expressed by Kitto J, in Nesterczuk v Mortimore, ...
The issue was considered more recently in TNT Management Pty Ltd v Brooks, Justice Gibbs (with whom Justices Stephen, Mason and Aickin agreed) said:
[T]he position and state of the vehicles after the collision do provide a basis from which a reasonable inference can be drawn as to the position of the vehicles before the collision. In my opinion it is reasonable to find on the balance of probabilities that the pantechnicon was, to some extent at least, on its incorrect side of the roadway at the time when the collision occurred. If that was so it should further be concluded that its driver was guilty of negligence. It is of course true that it is possible to envisage circumstances in which the pantechnicon could have got on to its incorrect side of the roadway without any negligence on the part of its driver. For example some inevitable accident, or hazard quite unconnected with the semi-trailer, might have caused the pantechnicon to have swerved to its incorrect side of the roadway. However there is nothing at all in the evidence that would support an inference of that kind, and a finding to that effect would be merely conjectural. If therefore the pantechnicon was proceeding (or standing) entirely or partly on its incorrect side of the roadway, the reasonable inference to draw in the circumstances of the present case is that the driver of the pantechnicon had been guilty of some negligence which caused or contributed to the collision.[27]
Arguably, Justice Gibbs was laying the foundations for an inference that meets the requirements specified by Justice Dixon.[28] However, there is no reference in his judgment to Briginshaw v Briginshaw. In contrast, Justice Murphy explicitly rejected the requirement of actual belief and stated that Justice Dixon was in error.[29] In West v Government Insurance Office (NSW),[30] the most recent decision of the High Court in this area of the law, the majority of the Court, holding that there was inadequate evidence on which to find negligence, quoted[31] with approval the following passage from Chief Justice Dixon’s judgment in Jones v Dunkel:
The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact must reasonably be satisfied.[32]
The High Court did not refer to Briginshaw v Briginshaw.
290. A Complication. Differences over whether the standard of proof should be analysed in terms of subjective or objective probabilities may not be the only explanation for the sharp division that often arises in cases in which the evidence is scant and largely circumstantial. In the discussion so far, there has been reference to only one objective account of probability—the one explained in terms of relative frequencies. In Cohen’s view, however, the principles of probability that are appropriate to legal proof, and that are tacitly applied by the courts, are far different from those that are appropriate to relative frequencies. This suggestion has important implications for legal proof beyond the topic of standard of proof and has attracted considerable academic debate.[33] According to Cohen’s approach, the probability of a statement is determined by the extent to which it has inductive support. There are two aspects to this. First, there is the initial generalisation that gives some inductive support to the statement. For example, the generalisation, dark clouds mean rain, gives inductive support to the conclusion that, since there are dark clouds in the sky, it will rain today. Secondly, there is the testing of this initial generalisation against unfavourable circumstances. Dark clouds may normally mean rain, but rain is less likely (we might suppose) if there is also a strong wind. Here, a second generalisation is invoked to refute the first. If its condition is satisfied (that is, if it is windy today) the probability of the statement that it will rain is reduced. If the condition is not satisfied, the probability of the statement is increased.[34] It should be noted that, according to Cohen, the relevant generalisations must assert some causal connection between the events in question. The generalisation, dark clouds mean rain, for example, is an acceptable premise for the inductive inference that it will rain today because it asserts some causal connection between dark clouds and rain.[35] Cohen gives the following example of an application of his approach in a civil trial:
The plaintiff produces evidence that ... a contract was proposed and that on several occasions the defendant expressed an active interest in it. This evidence (R I) might give some initial probability to the conclusion (S) that the defendant accepted the proposal, but for the fact (R2), stressed by the defence, that the plaintiff can produce no documentary evidence of acceptance. Here the generalization initially invoked by the plaintiff is that, normally, if a contract is proposed to a man and he expresses an active interest in it on several occasions, he will eventually accept it. Then the non-existence of documentary evidence is taken to be a presumably unfavourable circumstance for applying this generalization. So the plaintiff strengthens his case by showing (R3) that a substantial sum of money passed from him to the defendant, allegedly as a down-payment. But the defendant counters by showing (R4) that the plaintiff owed him money on another account. The plaintiff also proves (R5) that the defendant assembled suitable building materials, as if he intended to build the factory. But the defendant counters again by showing (R6) that he needed such materials for another operation. At this point, perhaps, there might be no more facts brought to the attention of the jury. The plaintiff would then have failed to prove his case on the preponderance of evidence, or balance of probability.[36]
291. The difference, in the present context, between the two objective approaches to probability is well illustrated by an example much discussed in the academic literature. The example concerns an action by rodeo organisers to recover the price of admission to the rodeo from A, one of the audience. The only evidence, which is not disputed, is that, of the 1000 people counted on the seats, only 499 paid for admission—the remainder climbing over the fence. The question is whether this evidence is sufficient to hold A liable. According to the approach in terms of relative frequencies it is, since the chance that A did not pay is greater than 0.5.[37] But a different conclusion is reached on Cohen’s analysis. Since, in the absence of further evidence, there is no generalisation from which it can be inferred inductively that A is likely not to have paid, the organisers would not be entitled to recover against him or, for that matter, against any other spectator.
292. The existence of alternative objective approaches to probability could explain some of the differences of opinion that have emerged in cases where the evidence is scant and circumstantial. In TNT Management Pty Ltd v Brooks,[38] for example, Justice Murphy clearly adopts a relative frequencies approach or one similar to it. On the other hand, the passage from Justice Gibbs judgment quoted earlier[39] might be explained in terms of Cohen’s analysis. Justice Gibbs starts with the general proposition that, given the nature of the collision, it could be inferred tentatively that the pantechicon was on the incorrect side of the road. He then considers a number of factors that might refute that proposition, but concludes that there was inadequate evidence to show that any of those factors operated in the case in question. It is arguable that the courts have, at least in motor accident cases, adopted a form of objective standard based on Cohen’s theories. But the existence of alternative objective approaches does not explain each difference of opinion and the discussion in the cases is not expressly conducted on that basis.
293. Civil Standard. Although it is difficult to find authority on the point, there can be no doubt that the standard of proof in respect of preliminary questions of fact in civil cases is the civil standard. The position is not so clear in criminal cases. In Wendo v R, the High Court rejected the argument that, before an accused’s confession was admissible, it was necessary to prove beyond reasonable doubt that it was voluntary. The Court held that the judge should have admitted the confession if he was satisfied that there was prima facie evidence that it was made voluntarily.[40] Most subsequent Australian courts have interpreted this as meaning that the appropriate standard is the civil one.[41] Some judges state the standard is the balance of probabilities.[42] Others require ‘satisfaction’, which is ‘variable in content, but always intermediate between proof beyond reasonable doubt and proof on the balance of probabilities’.[43] In R v Hope[44] Justice Cussen held that before a dying declaration could be admitted into evidence the judge must be satisfied beyond reasonable doubt that death was impending and the deceased, at the time of making the declaration, knew that to be so, but this view seems inconsistent with later authorities dealing with the standard of proof in relation to preliminary questions of fact.[45]
294. The Alternatives. Another uncertain topic is the question of to what evidence the standards of proof are applied. There are three possibilities. They might be applied to:
• each item of evidence. In this case, the jury in a criminal trial, for example, could only take account of evidence adduced by the prosecution if that evidence satisfies the criminal standard;
• each essential element of the offence, cause of action or defence;
• the whole of the case of the party bearing the legal burden in relation to the offence, cause of action or defence.
295. Application of the Standards to All Evidence. The suggestion that evidence should not be accepted as establishing a fact unless it satisfies a standard of proof is normally made in the context of circumstantial evidence. In R v Van Beelen,[46] for example, it was argued, on appeal, that the jury should have been told not to take account of scientific evidence establishing a similarity of trace materials (paint, hair, fibres) found on the victim with those found on the accused unless it was satisfied beyond reasonable doubt that at least some of the trace materials found on the victim and accused came from the same source. The South Australian Full Supreme Court, rejecting the argument, said:
[T]he requirement of proof beyond reasonable doubt relates to the final stage in the process; the jury is not, in our view, required to split up the various stages in the process of reasoning leading to the conclusion of guilt beyond reasonable doubt and to apply some particular standard of proof to each of those steps ... and to instruct them to do so would, in our view, be confusing and possibly misleading and would tend to the imposition of an artificial and scholastic strait-jacket on their deliberations.[47]
This approach has not been followed uniformly by the few courts that have specifically considered the issue.[48] Moreover, in R v Van Beelen itself the Court, after the passage quoted above, said:
[T]he jury should be told that they can draw inferences only from facts which are clearly proved, but further than that it is neither necessary nor desirable to go. There may not be much difference between telling them that and telling them that they can draw inferences only from facts proved beyond reasonable doubt, but there is authority in favour of the first proposition and authority against the necessity for the second proposition. Of course we do not say that it would be a misdirection to tell the jury that they can draw inferences only from facts which are proved beyond reasonable doubt. ... But we are precluded by Grant’s Case [1964] SASR 331 from holding that failure to give this direction amounts to what the American cases call reversible error.[49]
296. The Remaining Alternatives. There is no clear authority on which of the two remaining approaches—application of the standard of proof to each essential element or to the whole offence or cause of action—is correct. In criminal trials, the jury might be told that it must be satisfied of the accused’s guilt beyond reasonable doubt.[50] But it seems that it is equally satisfactory to tell the jury that the burden lies upon the Crown to prove beyond reasonable doubt every constituent part of the crime charged,[51] although this direction, on any analysis but Cohen’s,[52] is slightly weaker than the first; for whereas if the whole case is proved beyond reasonable doubt each essential element must be, the converse is not true. Doubts may exist in relation to each essential element of the case which, taken individually, are too small to amount to a reasonable doubt, but when compounded are sufficient to do so. The position is no clearer in civil cases. Once again, it is often said that the plaintiff must prove his case on the balance of probabilities. However, where the case is tried before a jury, the jury may be given a list of questions to answer, in which case it may apply the standard of proof to each question on the list.[53]
297. Criminal Standard in Civil Trials? While it is frequently stated that there are only two standards of proof it is unclear whether and in what circumstances the criminal standard is applied in civil cases. Differences exist:
• Matrimonial Cases. The correct standard of proof for divorce proceedings has been the subject of considerable dispute.[54] The Family Law Act 1975 (Cth) does not specifically deal with the question.[55] In the absence of a provision setting the standard of proof, the Full Court of the Family Court has held that the correct standard is the one applied by Justice Dixon in Briginshaw v Briginshaw.[56] That standard has also been applied in determining whether a person is a putative spouse for the purposes of s 11 of the Family Relationships Act 1975 (SA).[57] In contrast, there is English authority in support of the view that the standard of proof in respect of facts relating to the formal validity of a marriage is proof beyond reasonable doubt.[58] That decision was based on the view that the presumption of the validity of marriage was, in the circumstances, so strong that it could only be rebutted by proof beyond reasonable doubt. The contrary view was taken in Re Peatling.[59]
• Paternity. There is conflicting authority on the standard of proof appropriate to cases involving paternity. In Murray v Kickmaier,[60] for example, the New South Wales Court of Appeal accepted that the appropriate standard was proof on the balance of probabilities. In P v T[61] Justice Cox, of the South Australian Supreme Court, held that the appropriate standard was proof beyond reasonable doubt. But this conflict can be explained by the differences in the issues involved. The New South Wales Court was concerned with the liability of a putative father to contribute to the maintenance of the child. Justice Cox, on the other hand, was concerned with a case in which the applicant was seeking a declaration that he was the father of a daughter of the respondent who was born while the respondent was married to another man. In the latter case, the main reason for requiring a higher standard was that the presumption of legitimacy, which applied in that case but not in the other, could only be rebutted by evidence that established beyond reasonable doubt that the child was illegitimate.[62] However, in some jurisdictions,[63] legislation has substituted the civil standard. Moreover, in In the marriage of Lamb (No 1)[64] Justice Asche said that ‘it is questionable whether the presumption of legitimacy now requires a standard of proof beyond reasonable doubt’. In his view, even if the cases applying that standard were still good law they should be confined strictly to their facts. On that basis he applied the civil standard to the case in question.[65]
[1] See, eg, R v Hepworth [1955] 2 All ER 918, 920 (Lord Goddard). For a recent example of differences of view and the assertion of two standards see Allied Pastoral v FCT (1983) 44 ALR 607.
[2] Apart from the standards recognised by the common law, other standards might be imposed by statute in respect of particular offences or causes of action, although there appear to be no examples of an Australian legislature taking that course. Also, in some cases, legislation provides that the Court must be ‘satisfied’ of the essential elements of a crime or cause of action, but this formula has not been interpreted as imposing a third standard: see, eg, Peeks Ltd v Adelaide Oil Exploration Co Ltd [1937] SAStRp 24; [1937] SASR 154; Strophair v Ebbage: ex parte Ebbage [1945] QSR 126. For the standard of proof appropriate to matrimonial cases, see Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 361-2; to the Marriage of Pavey [1976] FamCA 36; (1976) 10 ALR 259, 264-5; Re Fagan Deceased (1980) 23 SASR 454 and below, para 297.
[3] See, eg, Miller v Minister of Pensions [1947] 2 All ER 372, 373-4 (Denning J); Sodeman v R [1936] HCA 75; (1936) 55 CLR 192, 216-7, 220 (Dixon J). This is not so in the United States, where the common law appears to recognise three standards: see JH Wigmore, A Treatise on the Anglo-American System of Evidence. 3rd edn, Little, Brown and Co, Boston. 1940, 2498.
[4] Defences in respect of which the defence has the burden of proof: eg insanity.
[5] This description is not entirely accurate, for there are certain circumstances in which this standard is applied to cases other than criminal ones: see below, para 297. The application of the standard in criminal cases where the case is dependent on circumstantial evidence should also be noted: Grant v R [1905] ArgusLawRp 161; (1976) 11 ALR 503; Chamberlain v R [1984] HCA 7; (1984) 58 ALJR 133.
[6] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 361-2. The formulation has caused uncertainty. For example, as the seriousness of the allegations increases:
• the standard of satisfaction will vary—Helton v Allen [1940] HCA 20; (1940) 63 CLR 691, 701 (Starke J ); Rejfeck v McElroy [1965] HCA 46; (1965) 39 ALJR 177; Nixon v Commissioner of Taxation (1979) 36 FLR 172; Andrijich v D’Ascanio [1971] WAR 140.
• the standard remain the same but more cogent proof is needed—see Rejfeck v McElroy [1965] HCA 46; (1965) 39 ALJR 177; Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 2) [1979] FCA 51; (1979) 40 FLR 83, 105 (Fed Ct); Cuming Smith and Co Ltd v Westralian Farmers Co-op Ltd [1979] VicRp 15; [1979] VR 129. The end result is probably the same. Another explanation that is unsatisfactory that the standard of proof does not vary but the cogency of evidence required will increase in more serious cases because the facts alleged will be less probable (see Denning LJ In Bater v Bater [1951] P 35, 36-7)—eg, it does not explain the approach required for the issue of whether the defendant was the person who committed the murder (compare the question of intent)).
[7] Jones v Sutherland Shire Council [1979] 2 NSWLR 206, 227-8 (Mahoney J).
[8] For alternative objective accounts of probability, see A Ligertwood, ‘The Uncertainty of Proof’ (1976) 10 MUL Rev 367, 377-382; LJ Cohen, The Probable and the Provable. Clarendon Press, London (1977).
[9] See Davies v Taylor [1974] AC 207, 219 (Lord Simon); Williams ‘The Mathematics of Proof’ [1979] Crim L Rev 297.
[10] eg Bradshaw v McEwans (1951) Unreported, High Ct Jones v Dunkel [1959] HCA 8; (1958) 101 CLR 298 (Windeyer J); Anchor Products v Hedges [1966] HCA 70; (1966) 115 CLR 493, 501 (Owen J); Livingstone v Halvorsen (1978) 22 ALR 213, 228 (Aicken J); Goodwin v Nominal Defendant (1980) 54 ALJR 84.
[11] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 360-1; Bradshaw v McEwans (1951) Unreported, High Ct; Holloway v McFeeters [1956] HCA 25; (1956) 94 CLR 470.
[12] See, eg, Axon v Axon [1937] HCA 80; (1937) 59 CLR 395, 407, (Dixon J); Helton v Allen [1940] HCA 20; (1940) 63 CLR 691, 701 (Starke J), 711-2 (Dixon, Evatt, McTiernan JJ); Rejfek v McElroy [1965] HCA 46; (1964-5) 112 CLR 517, 521; Andrijich v D’Ascanio [1971] WAR 140, 142 (Hale J); TPC v Ansett Transport Industries Pty Ltd [1978] FCA 21; (1978) 32 FLR 305, 329 (Northrop J); TPC v Nicholas Enterprises Pty Limited (No 2) [1979] FCA 51; (1979) 40 FLR 83, 105 (Fisher J); Cuming Smith & Co Ltd v Westralian Farmers Co-op Ltd [1979] VicRp 15; [1979] VR 129, 147 (Kaye J); In re Fagan deceased (1980) 23 SASR 454, 465 (Jacobs J); Peter Williamson Pty Ltd v Capitol Motors Ltd (1982) 41 ALR 613, 619-20 (Franki J); Maher-Smith v Gaw (19691 VR 371, 374. See also Odgers, para 7.2; n 6 above.
[13] See, eg. Bater v Bater [1951] P 35, 36-7 (Denning LJ); Re Bramble-vale Ltd (1970) Ch 128, 137 (Winn LJ); Rejfek v McElroy (1965) 39 ALJR 117.
[14] (1979) 53 ALJR 267, 271.
[15] See Davis v Bunn [1936] HCA 44; (1936) 56 CLR 246; Luxon v Vines [1952] HCA 19; (1952) 85 CLR 352; Holloway v McFeeters (1956) 94 CLR 477; Mummery v Irvings [1956] HCA 45; (1956) 96 CLR 99; Jones v Dunkel [1959] HCA 8; (1958-9) 101 CLR 298; Nesterczuk v Mortimore [1965] HCA 60; (1965) 115 CLR 140; Lopes v Taylor (1970) 44 ALJR 412; TNT Management Pty Ltd v Brooks (1979) 53 ALJR 267; West v Government Insurance Office (NSW) [1981] HCA 38; (1981) 55 ALJR 544.
[16] [1956] HCA 25; (1956) 94 CLR 470, 477.
[17] [1956] HCA 25; (1956) 94 CLR 470, 481.
[18] R Eggleston, ‘Probabilities and Proof’ (1963) 4 MUL Rev 180, 200-1.
[19] id, 201.
[20] [1965] HCA 60; (1965) 115 CLR 140.
[21] [1938] HCA 34; (1938) 60 CLR 336.
[22] id, 361-2.
[23] id, 149.
[24] [1956] HCA 25; (1956) 94 CLR 470.
[25] See, however, the comments of Murphy J in TNT Management Pty Ltd v Brooks (1979) 53 ALJR 267, 272.
[26] [1969] VicRp 47; [1969] VR 371, 374.
[27] (1979) 53 ALJR 267, 270: cf Lopes v Taylor (1970) 44 ALJR 412, 421-2 (Gibbs J).
[28] Briginshaw v Briginshaw (1938) 50 CLR 336, 361-2.
[29] (1979) 53 ALJR 267, 271.
[30] [1981] HCA 38; (1981) 55 ALJR 544.
[31] [1981] HCA 38; (1981) 55 ALJR 544. 546.
[32] [1959] HCA 8; (1959) 101 CLR 298, 305.
[33] See, eg, Cohen, ch 7: LJ Cohen, ‘The Logic of Proof’ [1980] Crim L Rev 91, 97-100: G Williams, ‘The Logic of Proof—A Short Rejoinder’ [1980] Crim L Rev 103, 106: R Eggleston, ‘The Probability Debate’ [1980] Crim L Rev 678, 681-2: LJ Cohen, Letter to the Editor [1980] Crim L Rev 747, 747-9: LJ Cohen, ‘Subjective Probability and the Paradox of the Gatecrasher’ [1981] Ariz St LJ 627.
[34] See Cohen, 121-3.
[35] For a complete account of Cohen’s ‘inductive’ probability. see Cohen, ch 13.
[36] Cohen, 252-3.
[37] There is a dispute over whether an approach in terms of relative frequencies would allow the rodeo organisers to recover from each of the 1000 spectators. In Eggleston’s view, it would not. His reasoning is as follows: if the organisers are successful against A and B, then the evidence before the court in an action against a second spectator, C, will be that A and B did not pay and that of the remaining 998 spectators 497 paid. The chances of C not having paid, then, are 497 out of 998, which is less than 0.5: see R Eggleston, ‘The Probability Debate’, [1980] Crim L Rev 678, 681. In contrast. Murphy J would appear to allow recovery against all 1000 spectators. Eggleston’s approach has the consequence that the liability of each spectator will depend solely on the order in which they are sued.
[40] [1963] HCA 19; (1963) 109 CLR 559, 562 (Dixon CJ), 572-3 (Taylor and Owen JJ). The Court appeared to think the same rule applied to other preliminary questions of fact.
[41] See R v Hart (1977) 17 SASR 100, 103; R v Bodsworth [1968] 2 NSWR 132, 136; R v Buchanan [1966] VicRp 3; [1966] VR 9, 15; R v Hagan [1966] Qd R 219, 221-3; R v Savage [1970] TASStRp 11; [1970] Tas SR 137; MacPherson v R (1981) 55 AUR 594, 597 (Gibbs CJ and Wilson J); Cleland v R [1982] HCA 67; (1982) 57 ALJR 15; cf MacPherson v R [1981] HCA 46; (1981) 55 ALJR 594, 606 (Brennan J); R v Warren (1982) 5 A Crim R 321 (NSW CCA).
[42] R v Warren [1982] 2 NSWLR 360 (NSW CCA).
[43] R v Askeland (1983) 8 A Crim R 338, 347.
[44] [1909] ArgusLawRp 9; [1909] VLR 149, 164.
[45] cf R v Donohue (1963) 63 SR (NSW) 38.
[47] (1973) 4 SASR 353, 374. See also R v Carn [1982] 5 A Crim R 466; R v Beaver (1979) 1 A Crim R 50; Chamberlain v R [1983] FCA 78; (1983) 46 ALR 493, 514. 581.
[48] See, eg, R v Gordon (unreported), discussed in TC Brennan, ‘Circumstantial Evidence’ (1930-1) 4 ALJ 106; R v Charlton [1972] VR 759; cf R v Beble [1979] Qd R 278, 290 (Hoare J); R v Freeman [1980] VicRp 1; [1980] VR 1, 15; R v Carn (1982) 5 A Crim R 466, 470-1; R v Dickson [1983] VicRp 19; [1983] VR 227.
[49] (1973) 4 SASR 353, 375.
[50] See Thomas v R [1960] HCA 2; (1960) 102 CLR 584, 604 (Windeyer J).
[51] See Sodeman v R [1936] HCA 75; (1936) 55 CLR 192, 219 (Dixon J).
[52] If Cohen’s approach to probability is correct, the standard cannot always be applied to the proponent’s case as a whole. Take, for example, a murder trial that involves two issues: first, whether the accused had the necessary intention and secondly, whether the victim’s death was caused by the wound inflicted by the accused. Here, the two issues are said to be ‘incommensurable’ because the inductive generalisations relevant to one are irrelevant to the other. In such cases, according to Cohen’s theory, the probabilities cannot be combined. The whole case is proved to the appropriate standard if each incommensurable issue is proved to that standard (Cohen, 266).
[53] For discussion, see Eggleston, 684.
[54] See JA Gobbo, D Bryne, JD Heydon, Cross on Evidence, 2nd Aust edn, Butterworths, Sydney, 1979, para 5.5-5.9.
[55] However, see s 48(2), which requires the court to be ‘satisfied’ that the parties have lived apart for a continuous period of 12 months.
[56] In the Marriage of Pavey [1976] FamCA 36; (1976) 10 ALR 259, 264-5.
[57] Re Fagan Deceased (1980) 23 SASR 454.
[58] Mahadervan and Mahadervan [1964] P 233.
[59] [1969] VR 214, 224.
[62] See P v T (1980) 23 SASR 289, 293-4. See Piggott v Piggott [1938] HCA 62; (1938) 61 CLR 378, 413-5 (Dixon J); Cross on Evidence, para 6.16-6.18: PK Waight & CR Williams, Cases and Materials on Evidence, Law Book Co, Sydney, 1982.
[63] New South Wales: Children (Equality of Status) Act 1976, s 10; Northern Territory: Status of Children Act 1978 s 5. Legislation elsewhere is silent—see Family Relationships Act 1975 (SA), s 8; Status of Children Act 1978 (Qld), s 5; Status of Children Act 1974 (Vic), s 5: Status of Children Act 1974 (Tas), s 8.
[64] [1977] FLC para 90-225.
[65] For discussion, see Waight & Williams, 126. The Briginshaw test was also applied by Hase J in McArthur and McArthur 11 (unreported) Family Court: 9 December 1982.
298. Corroboration Requirements. The topic of corroboration is concerned with those rules which require the testimony of a witness to be ‘corroborated’, either by the testimony of another witness or by evidence of some other type. The requirement varies for different situations:
• a rule of law that if the relevant testimony is uncorroborated the court must not act upon it;
• a rule of law that the jury be warned against acting on the uncorroborated testimony of a witness. The absence of corroborative evidence will not be crucial, but the absence of a warning normally will be. Only if the appeal court is satisfied that no substantial miscarriage of justice resulted will it not order a retrial.[1] The warning is said to be required as a matter of law;[2]
• a rule of practice[3] requiring corroboration. Here the giving of a corroboration warning is in the discretion of the trial judge. The absence of a warning against acting on uncorroborated evidence is a matter to be given weight in determining whether the jury was properly instructed by the trial judge. However, if there is substantial corroborative evidence or other special circumstances exist, an appeal court will not normally interfere with the trial judge’s decision not to give a warning.
This chapter is concerned primarily with those types of evidence that have not been dealt with elsewhere and where corroboration might be thought to be an appropriate requirement.[4]
299. Accomplices. In Queensland a person cannot be convicted on the uncorroborated testimony of an accomplice.[5] Elsewhere except possibly Victoria, it is probably a rule of law that the judge warn the jury of the dangers of convicting an accused on the basis of the uncorroborated testimony of an accomplice.[6] The absence of a warning will result in the conviction being quashed, even though there was corroborative evidence[7] unless it caused no substantial miscarriage of justice. This ‘proviso’ applies to all appeals in criminal cases.[8] As Ligertwood points out,[9] it is only applied in exceptional cases where the error is an error of law. In Victoria, the position remains in some doubt. In R v Teitler,[10] the leading case in that State, Justices Lowe and O’Bryan, after stating that a warning was required as a matter of law[11] went on to say:
In our opinion, the practice of the court is to quash a conviction where part of the evidence against the accused has been that of an accomplice and when no proper warning as to the use of that evidence has been given, unless there was, apart from the evidence of the accomplice, substantial evidence implicating the applicant and upon which the jury could properly have convicted the applicant even if they had disregarded the evidence of the accomplice.[12]
This passage has been interpreted as meaning that a warning is only required as a matter of practice.[13] Another interpretation is that it means that a warning is not required where there is substantial corroborative evidence, but is required as a matter of law where there is not. Justice Sholl, on the other hand, thought that a warning should be given in all cases. In his view, only if the appeal court was satisfied that there had been no substantial miscarriage of justice should it refuse to order a retrial.[14]
300. The definition of ‘accomplice’ is a critical issue in accomplice cases.[15] Lord Simonds in Davies v DPP[16] defined an ‘accomplice’ as:
• a participant in the actual crime charged, whether as a principal or accessory before or after the fact (in the case of felonies), or a person committing, procuring or aiding and abetting the crime (in the case of misdemeanours);
• a receiver giving evidence at the trial of those alleged to have stolen the goods received by him;
• a party to other identical crimes alleged to have been committed by the accused, when evidence of the commission of those crimes is led to prove system and intent and to negative accident.
However, this definition has not been adopted unreservedly:
• in Western Australia, Tasmania and Victoria, ‘accomplice’ has been held not to include an accessory after the fact.[17] There is conflicting authority in New South Wales;[18]
• in Western Australia,[19] but not in other States,[20] the definition includes persons charged with a crime with which the accused could have been charged (for example; a person charged with manslaughter when the accused is charged with murder);
• although not expressly included in the definition given by Lord Simonds, there is authority for the view that a thief is an accomplice of the person who receives the stolen goods.[21] More recent English authority placed limits on the circumstances in which the thief could be so regarded;[22]
• the definition of ‘accomplice’ does not include a policeman who participates in an offence merely for the purpose of obtaining evidence.[23]
The question whether a witness is an accomplice is one for the jury to decide.[24]
301. In England,[25] the requirement of a warning only applies where the accomplice is a witness called by the prosecution. However, some Australian courts have extended the rule to cover a witness called by a co-accused.[26] In contrast, in England, a warning is only required as a matter of practice in such cases.[27]
302. Complainants in Sexual Cases. In England, a corroboration warning is generally required as a matter of law in respect of the testimony of a complainant in a sexual case[28] whether male or female, young or old.[29] In Australia, the position is governed partly by common law and partly by statute. Each State and the Northern Territory have provisions requiring corroborative evidence as for a conviction a matter of law in certain sexual cases. The requirements vary from jurisdiction to jurisdiction.[30] In New South Wales and Victoria, general provisions have also been passed which affect the common law rules requiring a warning. In Victoria, those rules have been abolished in all cases by s 62(3), Crimes Act 1958 (Vic).[31] That section provides:
Where a person is accused of a sexual offence, no rule of law or practice shall require the judge before whom the accused is tried to warn the jury that it is unsafe to convict the accused on the uncorroborated evidence of the person with or upon whom the offence is alleged to have been committed, but nothing in this sub-section restricts the operation of any enactment requiring that the evidence of a witness be corroborated.
In New South Wales, a similar provision is limited to the four classes of sexual assaults.[32] That has the result that the common law requirement of a corroboration warning is preserved for some sexual offences, but is abolished for the serious new statutory ones.[33]
303. For cases not governed by statute, the law appears to be that a corroboration warning is required, but only as a matter of practice, not of law. In Kelleher v R,[34] for example, which is the leading authority on the point, the accused, a member of a bikie gang that came uninvited to the complainant’s flat, was charged with rape. It was conceded that the complainant had been raped by several members of the gang, the only question being whether the accused was one of them. The evidence of the complainant identifying the accused was supported by the evidence of a friend who was present at the time. The majority of the High Court held that no warning was necessary. Two reasons were given—there was substantial corroborative evidence so a warning was unnecessary[35] and the reasons for requiring the warning—for example, the ease with which accusations of rape can be fabricated—did not exist in the case in question.[36] Aronson et al have argued that the case was, for the purpose of corroboration rules, an identification case, not a rape case.[37] Some courts have been reluctant to accept that approach. In R v Byczko (No 1), for example, Justice Hogarth, after referring to Kelleher, said:
From the judgments in this case, it appears that in spite of the almost universal practice which has grown up whereby a judge warns the jury of the danger of convicting a man on the uncorroborated evidence of the prosecutrix, there is no positive rule of law which requires the judge to do so; or to direct the jury in detail as to what amounts to corroboration, and how they should approach the question. But the practice of a judge giving such a warning has become so universal that a court of appeal will now, in general, hold that there has been a miscarriage of justice ... where there is no evidence which may amount to corroboration, and no such warning is given.[38]
304. Children. In all States and Territories except Queensland,[39] there is legislation requiring corroboration of the unsworn evidence of a child[40] in a criminal case before an accused may be convicted on that evidence.[41] In Queensland, in such cases, all that is required is a warning, and then only where there is no other evidence implicating the accused in some material particular.[42] In New South Wales, corroboration is only required in certain specified offences.[43]
305. In the case of the sworn evidence of children in criminal cases, there is conflicting English authority—a corroboration warning is required as a matter of law[44] and more recent authority that suggests a warning is only required as a matter of practice.[45] In Australia, the position is in some doubt. Earlier Australian courts adopted the same position as English courts: a warning was required as a matter of law.[46] But whether that is so is open to question. The only authority cited by commentators for the proposition is Hargan v R.[47] But that case does not seem to support their view. In concluding that a warning should have been given, Justice Barton placed considerable emphasis on the particular circumstances of the case: the fact that the child was only fourteen and a half years and that there was no corroborative evidence.[48] He said nothing about whether a warning was required in all cases where the witness was a child. Justice Isaacs, on the other hand, dealt with the case on the basis that it involved a sexual crime.[49] Justice Rich gave no reasons for his decision. Moreover, in Hicks v R[50] the High Court said that ‘Hargan’s case has no application to cases in which the sworn evidence of the child is corroborated ...’. Similarly in Paine v R,[51] the Tasmanian Full Supreme Court held that corroboration was only required as a matter of practice. That, it is submitted, is the correct view of the law in Australia.
306. Other Cases. There are a number of other offences in which corroboration is required as a matter of law to secure a conviction or judgment:
• Affiliation Proceedings. The law differs. All jurisdictions have legislation requiring corroboration of the testimony of the mother of the child in question before the Court finds the defendant the father of the child. In South Australia, Tasmania and Victoria an exception exists where the defendant does not give evidence on oath denying that he is father. In Queensland, New South Wales, Victoria, Tasmania and Norfolk Island, the Court cannot find the defendant the father of the child if it is proved that, at the relevant time, the mother was a common prostitute or (except in New South Wales) had had intercourse with other men.[52]
• Bigamy. Section 94(7) Marriage Act 1961 (Cth) provides:
In a prosecution for an offence against this section, the fact that, at the time of the alleged offence, a person was married shall not be taken to have been proved if the only evidence of the fact is the evidence of the other party to the alleged marriage.[53]
• Perjury. Corroboration is required as a matter of law in prosecutions for perjury.[54]
• Sedition. Section 241)(2), Crimes Act 1914 (Cth) provides that a person cannot be convicted of sedition ‘upon the uncorroborated evidence of one witness’. Similar provisions exist in Queensland, Tasmania and Western Australia.[55]
• Treason. Legislation in Queensland, Western Australian, Tasmania, New South Wales and South Australia provides that a person can only be convicted of treason on the evidence of two witnesses.[56] That legislation is modelled on earlier Imperial legislation which still appears to be in force in all jurisdictions except New South Wales, Queensland and Tasmania.[57] A separate statutory offence of treason is created by the Crimes Act 1914 (Cth) s 24. No requirement of corroboration is specifically imposed in respect of that offence. It is doubtful whether a corroboration requirement exists.[58] But it says nothing about the law derived from Imperial legislation. Moreover, the Act imposes a requirement of corroboration in respect of some other offences.
307. Apart from those discussed earlier,[59] there do not appear to be any cases in which a corroboration warning is required as a matter of law. There are, however, other cases in which a warning is required as a matter of practice. It is not possible to give an exhaustive list of those, for it is always open to the judge (or an appeal court) to take the view that, because of the unreliable nature of particular evidence, the jury ought to be warned of the dangers of relying on that evidence alone.[60]
308. Mutual Corroboration. Reference is made above to the detailed body of law that has developed defining what constitutes ‘corroboration’.[61] It is proposed to refer in this section to one area of uncertainty—the issue of whether evidence requiring corroboration or a corroboration warning can itself be corroborative of other evidence requiring corroboration or a corroboration warning. The House of Lords has held that it can.[62] In R v Rigney,[63] however, Chief Justice Bray[64] and Justice Jacobs[65] said they would not apply Hester and Kilbourne to an accomplice case. In their view, one accomplice could not corroborate another in any circumstances. An alternative view is that the rule against mutual corroboration in accomplice cases only applies where the evidence of the accomplices is not ‘independent’.[66]
309. In most jurisdictions, legislation requires that the unsworn evidence of a child be corroborated by other evidence in some material particular.[67] There is some authority that ‘other evidence’ in this context means evidence other than evidence admitted by virtue of the relevant section,[68] although the better view appears to be that it means other evidence of any kind. In Queensland the relevant legislation permits unsworn evidence to be used as corroboration.
[1] See below, para 95.
[2] A Ligertwood, ‘Failure to Warn in Criminal Cases Where Corroboration May Be Required’ (1976) 50 ALJ 158, 159.
[3] Ligertwood, 159-63.
[4] Corroboration, however, could be dealt with as an aspect of particular types of evidence—eg, identification above. There is difficulty in dealing with the three rules referred to earlier under the general topic of corroboration. The two rules that ‘require’ a judge to give a warning are somewhat different from the strict requirement of corroboration. They are really concerned with what directions a judge should give to ensure that the jury discharges its functions properly. The strict rule of law, in contrast, is an artificial bar to proof. No matter how probative the evidence, it prevents facts from being found in the absence of corroboration. It is the converse of presumptions. But these theoretical problems of classification are of little concern. Clearly all three rules are part of the laws of evidence and it is convenient to follow normal practice and deal with them together.
[5] Criminal Code 1899 (Qld) s 632.
[6] Davies v DPP [1954] AC 378; Peacock v R [1911] HCA 66; (1911) 13 CLR 619; Kelleher v R [1974] HCA 48; (1974) 131 CLR 534, 560, 568.
[7] According to Aronson, Reaburn and Weinberg, there is some support for the view that a warning is only required as a matter of practice: MI Aronson, NS Reaburn & MS Weinberg (Aronson et al), Litigation: Evidence and Procedure,. 3rd edn, Butterworths, Sydney, 1982, 615. However, the authority cited in support of that proposition is generally old and represents only a minority view. For discussion, see Ligertwood, 164-5; J Edwards, ‘Accomplices in Crime’ [1954] Crim L Rev, 324, 326-8.
[8] Criminal Appeal Act 1912 (NSW) s 61; Crimes Act 1958 (Vic) s 568; Criminal Code 1913 (WA) s 689(1); Criminal Law Consolidation Act 1935 (SA) s 353(1).
[9] Ligertwood, 159. The issue will not arise where the accomplice does not given evidence adverse to the accused: R v Peach [1974] Crim L Rev 245.
[10] [1959] VicRp 54; [1959] VR 321.
[11] id, 327.
[12] id, 330.
[13] PK Waight & CR Williams, Cases and Materials on Evidence, Law Book Co, Sydney, 1980, 814.
[14] R v Teitler [1959] VicRp 54; [1959] VR 321, 3380. For discussion, see Ligertwood, 164.
[15] For discussion, see JD Heydon, ‘The Corroboration of Accomplices’ [1973] Crim L Rev 264.
[16] [1954] AC 378. 400.
[17] Khan v R [1971] WAR 44: R v Ling (1982) 6 A Cnm R 429. 449-51 (Tas CCA): R v Ready and Manning [1942] VicLawRp 2; [1942] VLR 85.
[18] Compare R v Perry [1970] 2 NSWR 501, 504 with R v Lynch [1971] 2 NSWLR 136, 137.
[19] Khan v R [1971] WAR 44, 49, 51.
[20] R v Rigney (1975) 12 SASR 30: R v Lynch [1971] 2 NSWLR 136, 141; McNee v Kay [1953] VicLawRp 2; [1953] VLR 520.
[21] R v Crane (1912) 7 Cr App R 113: R v Reynolds (1927) 20 Cr App R 125; Gunderson v Miller [1936] SAStRp 45; [1936] SASR 206: R v Sneesby [1951] St R Qd 26, 29.
[22] R v Vernon [1962] Crim L Rev 35.
[23] Sneddon v Stevenson [1967] Crim L Rev 476. But see below, para 103.
[24] That is so even if the witness has not been charged or convicted or has been acquitted of the relevant crime: R v Riley (1979) 70 Cr App Rep 1; R v Jacquier (1979) 20 SASR 543; Davies v DPP [1954] AC 378; McNee v Kay [1953] VR 520.
[25] Davies v DPP [1954] AC 378, 399.
[26] Khan v R [1971] WAR 44; R v Anthony [1962] VicRp 63; [1962] VR 440, 444 (FC); R v Rigney (1975) 12 SASR 30, 37-8 (Bray CJ).
[27] R v Prater [1960] 2 QB 464.
[28] R v Clynes (1960) 44 Cr App R 158; R v Midwinter (1971) 55 Cr App R 525; NSWLRC WP, 71.
[29] R v Burgess (1956) 40 Cr App R 144; R v Gammon (1959) 43 Cr App R 155; R v Sanders (1961) 46 Cr App R 60; R v Harrison [1966] NZLR 887.
[30] Evidence Act 1810 (Tas) s 118(2); Evidence Act 1906 (WA) s 37; Criminal Code 1899 (Qld) s 212, 215, 216. 218; Criminal Code 1913 (WA) s 185, 187, 188, 191, 192; Crimes Act 1900 (Vic) s 51, 54, 55, 59: Criminal Law Consolidation Act 1935 (SA) s 63, 64, 76; Crimes Act 1900 (NSW) s 81 B: Criminal Law Consolidation Amendment Act and Ordinance (NT) s 14.
[31] Crimes (Sexual Offences) Act 1980 (Vic) s 5.
[32] Crimes (Sexual Assault) Amendment Act 1981 (NSW); Crimes Act 1900 (NSW) s 405C.
[33] Aronson et al, para 24.28; R v Ridgeway [1983] 2 NSWLR 19.
[34] [1974] HCA 48; (1974) 131 CLR 534.
[35] id, 543 (Barwick CJ), 546 (McTiernan J), 560-1 (Mason J). 568-9 (Jacobs J).
[36] id, 543 (Barwick CJ). Gibbs J agreed with the other members of the court in refusing to grant special leave to appeal, but for different reasons.
[37] Aronson et al, para 24.30. It is generally accepted that a corroboration warning is only required as a matter of practice in identification cases. See above, para 192 (App C). But whether characterisation of cases in this way is acceptable is open to doubt. It would mean, for example, that in an accomplice case where the main evidence of the accomplice was as to the identity of the accused, no warning would be required as a matter of law. Instead, the rules for identification evidence would apply. The better view, it is submitted, is that Kelleher was both a sexual and an identification case and that it is authority for the view that a warning is only required as a matter of practice in both types of case.
[38] (1977) 16 SASR 506, 525-6, also 510 (Bray CJ), 536 (King J); R v Fox (1982) 7 A Crim R 28, 32 (Tas CCA); R v Ridgeway [1983] 2 NSWLR 19, 25; R v Fletcher (1983) 8 A Crim R 204 (NSW CCA).
[39] For the position in the Christmas and Cocos (Keeling) Islands, see Evidence Ordinance (Singapore) s 135 which states that ‘no particular number of witnesses shall in any case be required for the proof of any fact’.
[40] See para 3 above (App C).
[41] Evidence Act 1929 (SA) s 13(2); Evidence Act 1910 (Tas) s 128(2); Evidence Act 1958 (Vic) s 23(2); Evidence Act 1906 (WA) s 101(2); Evidence Ordinance 1971 (ACT) s 64(3); Evidence Act (NT) s 9C.
[42] Evidence Act 1977 (Qld) s 9(2).
[43] Crimes Act 1900 (NSW) s 418; Child Welfare Act 1939 (NSW) s 131.
[44] R v Cleal [1942] 1 All ER 203: NSWLRC WP para 111.
[45] R v Morgan [1978] 1 WLR 735.
[46] Aronson et al, para 24.35-7; JA Gobbo, D Byrne & JD Heydon, Cross on Evidence, 2nd Aust edn, Butterworths, Sydney, 1979, para 9.28; Waight & Williams, 805.
[47] [1919] HCA 45; (1919) 27 CLR 13.
[48] id, 20.
[49] id, 23-4.
[50] (1920) 29 CLR 36, 41.
[52] Maintenance Act 1965 (Qld) s 30; Maintenance Act 1964 (NSW) s 32; Family Court Act 1975 (WA) s 55(31); Maintenance Act 1965 (Vic) s 27; Community Welfare Act 1972 (SA) s 140; Maintenance Act 1967 (Tas) s 35; Maintenance Ordinance 1913 (Norfolk Island) s 5. There is no provision in the Christmas and Cocos (Keeling) Islands.
[53] Similar provisions exist in New South Wales (Crimes Act 1900 s 419), Tasmania (Evidence Act 1910 s 120) and Victoria (Crimes Act 1958 s 406). However, it is arguable that those provisions are invalid under s 109 of the Commonwealth Constitution: Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466; Ex parte McLean [1930] HCA 12; (1930) 43 CLR 472.
[54] R v Linehan [1921] ArgusLawRp 104; [1921] VLR 582; R v Sumner [1935] VicLawRp 13; [1935] VLR 197. The rule has been enacted in the Criminal Code 1899 (Qld) s 125; Criminal Code 1924 (Tas) s 96; Criminal Code 1913 (WA) s 126.
[55] Criminal Code 1899 (Qld) s 52; Criminal Code 1924 (Tas) s 67; Criminal Code 1913 (WA) s 52.
[56] As in the case of bigamy, that legislation may be inconsistent with Commonwealth legislation on the topic of treason and so invalid.
[57] Treason Act 7 & 8 Wm 111 c 3 (imp) (1695); Treason Act 39 & 40 Geo 111 c 93 (Imp) (1800).
[58] The Crimes Act 1914 (Cth) s 4 specifically preserves the principles of the common law as they apply to offences created by the Act.
[59] Above para 298-306 (App C).
[60] Cross on Evidence para 9.32; JD Heydon. Cases and Materials on Evidence, Butterworths, London, 1975, 96-7. It is frequently said that a corroboration warning is required as a matter of practice where a witness has some purpose of his own to serve by giving his evidence: R v Prater [1960] 2 QB 464; where the witness in question is a policeman or other law enforcement official who participated in the crime in order to gain evidence against the accused: R v Nation [1954] SASR 189; and where the witness is a claimant under the estate of a deceased person. Such cases are not tried without a jury, ‘the rule is better formulated by saying that the court will normally require corroboration though it is entitled to reach a conclusion without it’; In re Hodgson [1885] UKLawRpCh 249; (1885) 31 Ch D 177.
[61] See above, para 489, Part 111.
[62] DDP v Kilbourne [1973] AC 729 and DDP v Nester [1973] AC 296 overruling earlier decisions eg R v Manser (1934) 25 Cr App R 18. See also R v Schlaefer unreported. SA CCA (19 March 1984).
[64] id, 36-7.
[65] id, 58-9.
[66] R v Lamb [1975] Qd R 296, 300 (Dunn J); R v Parker (1983) 8 A Crim R 324, 336 (Gobbo J) (Vic CCA).
[67] See above para 304 (App C).
[68] See DPP v Nester [1973] AC 296, 311 (Lord Morris), 318 (Viscount Dilhorne), 320 (Lord Pearson). 322 (Lord Diplock), 330 (Lord Cross).
310. Introduction. Under the Rules of Court of most jurisdictions in Australia, courts many ‘inspect’ property (including land) outside the courtroom.[1] The judge(s) may inspect, or may authorise a jury to inspect, the property. Some of the Rules permit the carrying out of ‘experiments’ on such property.[2] Where no provision exists in relation to inspection in the Rules[3] there is an inherent power in the courts to order such an inspection in the interests of justice in both civil and criminal cases.[4] But in Australia, a distinction is drawn for evidentiary purposes between a ‘view’ where the fact finder uses his power of observation (and other senses) to help to understand and assess the value of evidence adduced in court, and a ‘demonstration’ which involves actually taking additional evidence, whether by experience, demonstration or reconstruction. The two categories may be considered separately.
311. View. A view is not ‘evidence’. Rather; as the High Court stated in Scott v Numurkah Corporation,[5] it is taken ‘for the purpose of enabling the tribunal to understand the questions that are being raised, to follow the evidence and to apply it, but not to put the result of the view in the place of evidence’. Nonetheless, when the appearance of something is central to a case, the fact-finder ‘can apply his own independent judgment notwithstanding what witnesses have deposed to on the particular point’.[6] It seems that the view may be held even if the parties do not request or agree to it,[7] but should not be held when the scene has been ‘substantially altered since the date of the occurrence[8] or that at least ‘any variations ... are defined in a manner enabling them to be assessed and accounted for’.[9]
312. Demonstration (at the Scene). As Justices McInerney and Murphy stated in R v Alexander,[10] once the tribunal of fact is ‘asked to make assessments for [itself], to conduct experiments ... to watch demonstrations, or reconstructions, what is occurring is no longer a view as such, but the leading of evidence. When once this take place, the strictest care must be taken that judicial procedures are followed and that no miscarriage occurs’. As with a view, any change in circumstances should be considered, but over and above that, the High Court stated in Scott that such a course can be taken only with ‘the full consent and concurrence of both parties’ or by an order from the trial judge under rules of court.[11] It is not entirely clear what considerations should guide the trial judge in deciding what directions to make, although it seems that the demonstration should be ‘exposed to the scrutiny and testing of the parties’.[12] There is some uncertainly about when ‘mere observation’ becomes an ‘experiment to gather evidence’. Chief Justice Bray of the South Australian Supreme Court considered in R v Ireland (No 1)[13] that it was not a demonstration to permit witnesses to indicate at the scene the positions they occupied at the relevant time and to permit furniture to be moved to its position at the time of the events in question. But Justice Zelling was of the opinion that ‘the view partook rather of the nature of a demonstration than of a view’.[14]
313. English Law. In England, the better view seems to be that a similar distinction is drawn between a simple view and a demonstration. Although Lord Justice Denning, as he then was, has asserted in Goold v Evans & Co[15] that ‘a view is part of the evidence ... It is real evidence’, and this proposition had been adopted by the Court of Appeal in Buckingham v Daily News Ltd,[16]the Privy Council held in Tameshwar v R[17] that while a view, coupled with a demonstration, is part of the evidence’, and a ‘view of this kind ... must be given in the presence of the tribunal which tries the case’, ‘these observations do not apply to simple view without witnesses’.[18] Nevertheless, the Privy Council had said, one year earlier, in Karamat v R,[19] that it is ‘clear’ that ‘a view is part of the evidence ... It is in substitution for or supplemental to plans, photographs and the like’. Although this case involved an actual demonstration, there has been continuing uncertainty in the case law, with a number of English judges asserting that even a simple view constitutes evidence.[20]
[1] High Court: Order 49, Rule 4-5; Federal Court: Order 17, Rule 3; ACT Supreme Court: s 27 of the Act provides that High Court practice applies; NT Supreme Court: Order 34, Rule 35: Australian States: MA Aronson, NS Reaburn & MS Weinberg, Litigation: Evidence and Procedure, 3rd edn, Butterworths, Sydney, 1982, para 29.08.
[2] NT (civil cases): Order 34, Rule 35(2)(b); NSW: Pt 25. Rule 8(1)(d); SA: Order 31, Rule 32(2)(b). Not dealt with in the Rules of the High Court, Federal Court, ACT Supreme Court.
[3] See Family Court, ACT Petty Sessions; NT Local Court.
[4] R v Sullivan (1869) 8 SCR 131, 136-7 (NSWSC); R v Martin (1872) LR 1 CCR 378, 380-1.
[5] [1954] HCA 14; (1954) 91 CLR 300.
[6] id, 313. See also Kristef v R (1968) 42 ALJR 233; R v Alexander [1979] VicRp 63; [1979] VR 615.
[7] Scott v Numurkah Corporation [1954] HCA 14; (1954) 91 CLR 300, 310: but cf Denver v Cosgrove (1972) 3 SASR 130, 133; Pope v Ewendt (1977) 17 SASR 45, 49.
[8] Barwick CJ in Commissioner for Railways v Murphy (1967) 41 ALJR 77, 78; Wilson J in Kozul v R [1981] HCA 19; (1981) 55 ALJR 377, 386.
[9] R v Alexander [1979] VicRp 63; [1979] VR 615, 632-3; Kozul v R [1981] HCA 19; (1981) 55 ALJR 377, 380, 383-4.
[10] [1979] VicRp 63; [1979] VR 615, 632.
[11] [1954] HCA 14; (1954) 91 CLR 300. 310. Fullagar J (316) stated that the trial judge could only permit a demonstration where the parties agreed or ‘if it were proved by evidence to his satisfaction that the demonstration really did reproduce what the witness had attempted to describe’.
[12] Wilson J in Kozul v R [1981] HCA 19; (1981) 55 ALJR 377, 386.
[13] [1970] SASR 416, 426.
[14] id, 450. Similarly, the High Court in Kozul v R [1981] HCA 19; (1981) 55 ALJR 377 divided on an analogous question of whether a juror’s experiencing a blow to his hand when holding a revolver (considering the effect on the trigger) would be gathering additional evidence. Gibbs CJ. Mason J and Wilson J thought it would be, while Stephen and Murphy JJ considered that the jury would be using ‘their own powers of observation with respect to the pistol to estimate the value of the testimony before them’.
[15] [1951] 2 TLR 1189, 1191.
[17] [1957] AC 476. Lord Denning delivered the judgment.
[18] id, 484-5. See also Hodson LJ in Goold v Evans [1951] 2 TLR 1189, 1192; Sachs LJ in Salsbury v Woodland [1969] EWCA Civ 1; [1970] 1 QB 324, 350.
[19] [1956] AC 256. 264.
[20] See Harman LJ in Salsbury v Woodland [1969] EWCA Civ 1; [1970] 1 QB 324, 346 (CA); Megarry J in Tito v Waddell [1975] 1 WLR 1301, 1307-8 (Ch D).
314. Voir Dire. Whether an item of evidence should be admitted in a trial is a question for the judge. When the admissibility, or possible discretionary exclusion, of an item of evidence is dependent on some finding of fact, that finding is also made by the trial judge.[1] The determination of this incidental issue is separate from the trial proper and is often referred to as a ‘voir dire’ hearing.[2] Both sides are entitled to call evidence and to cross-examine witnesses called by the other side. The onus of proof is on the party asserting admissibility, or the patty arguing for discretionary exclusion. Largely because of the paucity and antiquity of authority, except in relation to confessional evidence, this area of procedure is full of uncertainty.
315. Role of Judge. Where the preliminary question of fact, upon which the admissibility of an item of evidence is conditional, is identical with an ultimate issue in the case (to be decided by the tribunal of fact) there seems to be conflicting authority on the role of the judge:
• Judge decides. In Doe d Jenkins v Davies[3] the Court of Exchequer held that the judge should decide whether a deceased person was legitimate as the basis for an exception to the hearsay rule, even though the question was also the issue in the case.
• Judge admits if prima facie evidence of fact. The above approach was rejected in Hitchins v Eardley,[4] Lord Penzance holding that the judge should merely be satisfied that there was prima facie evidence of legitimacy. And in Stowe v Querner[5] the same test seems to have been adopted with respect to the question of whether an original document had existed (and been lost). The question, on this approach, is left to the jury to decide.
316. Confessions. It is clear that a voir dire relating to a confession will always be held in the absence of the jury.[6]
317. Competency of Witnesses. It is uncertain whether a voir dire into a matter such as the competence of a child witness or an expert witness should be held in the presence or absence of the jury. In R v Reynolds[7] the English Court of Criminal Appeal stated that ‘it should be regarded as most exceptional that any evidence should be given in a criminal trial otherwise than in the presence of the jury’ and held that the evidence of a witness as to a child’s competence should have been given in front of the jury ‘because it will enable the jury to come to a conclusion as to the weight which they should attach to her [the child’s] evidence’. But in Demirok v R[8] Justice Gibbs, with whom Justices Stephen and Aickin agreed, made the obiter remark that Reynolds has not settled the practice in Australia and that ‘there is no reason why the jury should be present when evidence is being given on’ a question of competence.
318. Discretion where Prejudice. Justice Gibbs concluded in Demirok that if ‘evidence which the judge has to consider on the voir dire in deciding a question of competence or admissibility is likely to be prejudicial to the accused, it should be received in the absence of the jury’.[9] What is not clear is the meaning of prejudicial in this context. Clearly there is a danger of prejudice to the accused if the jury is present when the judge decides on the voluntariness of an alleged confession by the accused—even if the judge rules it inadmissible as involuntary, the jury may nonetheless take the evidence into account. There was also a danger of prejudice in Demirok in that a jury might conclude from a wife’s refusal to give evidence that the evidence would be favourable to the prosecution. But Justice Gibbs also implied that it would be prejudicial if a jury used evidence adduced on the issue of competence as relevant to credibility (the weight of the witness’s evidence).[10] Rather, the evidence should be given again before the jury. Chief Justice Butt and Justice Wickham of the Western Australian Supreme Court in Kerr v R[11] agreed with Justice Gibbs,[12] Justice Jones stating only that ‘there are wide ranging arguments either way’.[13]
319. Civil Cases. In Albrighton v Royal Prince Alfred Hospital,[14] Justice Hutley stated that it is inappropriate to transport the practice in criminal cases to civil cases. Taking evidence as to a records system as relevant to the admissibility of documents ‘should rarely ... lead to improper disclosure of inadmissible material to the court’.[15]
320. Application of Exclusionary Rules. It is uncertain whether the trial judge is bound by all the exclusionary rules in determining what evidence to receive as proof of a fact constituting a condition precedent to the admissibility of an item of evidence in the trial. Wigmore asserted that in ‘preliminary rulings by a judge on the admissibility of evidence, the ordinary rules of evidence do not apply[16] but he cited no authority for this proposition and most Anglo-Australian authorities are closer to the more cautious statement in Cross that it is ‘probably true to say that the judge is not bound by all the exclusionary rules’ in a voir dire.[17] There are authorities that a witness being questioned during a competency voir dire could refer to the contents of documents without producing them.[18] In Duke of Beaufort v Crawshaw[19] an affidavit from a doctor was accepted in support of the contention that a witness was too ill to attend court. A rule nisi was discharged, but three of the four judges avoided the issue by noting that evidence other than the affidavit justified the ruling.[20] The line of authority on this point ended in 1883 with Ord 37, r 1 of the Supreme Court Rules which permitted proof by affidavit at the judge’s discretion. Of course, in many interlocutory or ex parte proceedings supplementing actual trials evidence inadmissible at such trials is employed to establish actual facts. But evidentiary hearings during the trial itself are arguably in a different category. Maguire and Epstein have concluded that English cases ‘lend little support to the decided statement by Wigmore’.[21] In R v Chadwick[22] it was held that hearsay statements concerning the circumstances in which a confession was made should not have been considered by the trial judge in deciding whether it was voluntarily made. It seems likely that policy based exclusionary rules, like those relating to privilege, also apply.
321. Admissibility of Evidence in Question. An analogous question is whether ‘bootstrapping’ is permissible in a voir dire, that is, use of the very evidence whose admissibility is in question. It is normal for a witness whose competence to give evidence is in question to testify on the voir dire, but it seems that the judge will not be relying on any assertion of competence by the witness but simply observing his or her behaviour in the witness box. Even if a judge does rely on such an assertion (eg ‘I am not married to X’) this may be on the basis that the burden of proving some fact is on the party asserting inadmissibility and the evidence is prima facie admissible. But where a party has the burden of establishing the existence of a fact conditional to admissibility, then it seems that the rules generally apply and ‘bootstrapping’ is not acceptable. For example, a third party’s assertion will not be admissible as a vicarious admission by a party’s agent without independent evidence of the agency relationship.[23]
322. Unsworn Statement. The question whether the accused can make an unsworn statement in the voir dire. The question does not appear to have been judicially decided, but it seems assumed in most jurisdictions that the accused must give sworn evidence (or evidence on affirmation).
323. Power to Initiate. The High Court decided in the recent case of MacPherson v R,[24] that a trial judge has the power and, where necessary, the duty to hold a voir dire of his own volition to determine a question of admissibility relating to an alleged confession. Nevertheless, there remains some uncertainty as to the circumstances requiring a trial judge to follow such a course when it is not requested by the accused, or, if represented, his counsel:
• Accused Represented by counsel. Chief Justice Gibbs and Justice Wilson required the existence of a ‘real question’ as to voluntariness,[25] but implied that allegations of police inducements or brutality might be enough.[26] Justice Mason required ‘an issue’ of voluntariness to arise,[27] while Justice Brennan implied that there must be some ‘evidence which suggests that the confession was involuntary or justifies its exclusion’.[28]
• Unrepresented Accused. Chief Justice Gibbs and Justices Wilson and Mason adopted essentially the same position as above, although they emphasised the responsibility of a trial judge to ensure a fair trial. Justice Brennan, however, stated that the trial judge’s ‘duty to control the admission of evidence ... will seldom be discharged without enquiry as to the facts which might affect its admissibility or its admission into evidence’.[29]
The Privy Council has stated in Ajodha v The State[30] that, irrespective of any challenge to the evidence by the defence, a trial judge should rule on the admissibility of a confession if its voluntariness is in doubt.
324. Conditions. Normally, the trial judge must consider the question of admissibility or discretionary exclusion if counsel requests such a determination. However, the precise position in the area of confessions is unclear. Australian courts have agreed that the trial judge must hold a voir dire (the accused therefore having a right to a voir dire) if an ‘issue’ or ‘real question’ of voluntariness or discretionary exclusion arises.[31] Where the onus is one of discretionary exclusion, the accused’s counsel will need, at least, to state the basis of the argument and give an assurance that relevant evidence will be called, because the onus of proof is on the accused.[32] But there seems to be a division between those authorities who consider that a voir dire must be held on an issue of voluntariness when the accused simply requests it after alleging involuntariness[33] and those authorities who state that a voir dire should not be used as a fishing expedition, implying that there must be some ‘material’ showing that there is a ‘real’ question as to voluntariness.[34]
325. Question as to Truth of Confession. It is unclear whether the accused may be asked in cross-examination on the voir dire if his confession was true. The authorities differ:
• Permissible. The English Court of Criminal Appeal stated in R v Hammond[35] that a confession’s truth could be relevant to the question of voluntariness, eg, in ‘oppression’ cases.[36] Thus it was often permissible for the accused to be asked in cross-examination on the voir dire if his confession was true,[37] a view followed by the South Australian Full Court in R v Wright[38] and by Justice Neasey in R v Toomey.[39] Nevertheless, these cases are unclear as to when exactly the truth of the confession is relevant. Chief Justice Bray in the South Australian case, for example, thought it always relevant to the accused’s credibility, and relevant to voluntariness ‘when the alleged inducement is an inducement to make a confession of some sort, irrespective of its truth or falsity, but not where it is an inducement to make a true confession only’.[40] These cases also seem to vary on analysis of situations where the trial judge should exercise his discretion not to permit the question to be put to the accused.[41] Justice Neasey in Toomey distinguished between cases where truth of the confession is ‘remotely relevant’ to voluntariness and situations where it ‘will be more than usually relevant ... no doubt each case must depend on its own circumstances’.[42] A majority of the High Court in Burns v R[43] decided that the truth of the confession was relevant to the question whether it was made, and in the process impliedly adopted the cases which thought it relevant to voluntariness.
• Not Permissible. Chief Justice Latham in Sinclair v R[44] stated that, in considering a confession’s admissibility ‘the judge does not decide whether or not the confession is likely to be true or untrue’.[45] A majority of the Privy Council (4/1), on appeal from the Supreme Court of Hong Kong, held in Wong Kam-ming v R[46] that the accused could not be questioned during the voir dire as to the truth of his confession—the answer would have no effect on the accused’s credibility and was not at all relevant to the issue of voluntariness. Their Lordships overruled R v Hammond. Note however the dissenting judgment of Lord Hailsham: ‘It seems to me impossible to say a priori that every question of truth or falsity of the statements must be excluded’.[47] He conceived several situations in which the truth or falsity of the confession would be directly relevant to the question of voluntariness eg if the defence case was that the police had forced the accused to sign a concocted confession.[48] To a large extent the issue seems to depend on whether a rationale of the voluntariness rule (and the grounds for discretionary exclusion) is the danger that the statement is untrue.[49]
• Privilege against self-incrimination. Even if the accused can be asked on the voir dire whether the confession is true, there is disagreement whether he can claim the privilege against self-incrimination. It seems that in Queensland the claim for privilege exists for the accused at the voir dire,[50] while in Tasmania it does not.[51] The situation is less clear in South Australia.[52]
326. Use in the Trial of the Accused’s Voir Dire Testimony. It is not clear whether evidence given on a voir dire may, without being repeated, be dealt with as evidence on issues other than admissibility. It probably can be, subject to the exclusionary rules,[53] but an exceptional situation may exist with respect to the testimony of an accused given on a voir dire. There is authority in South Australia and Tasmania to the effect that an accused may be cross-examined before the jury as to what he had said in the course of the voir dire and that those voir dire statements may be led in evidence against him,[54] subject to the general judicial exclusionary discretion.[55] In Queensland, Chief Justice Mansfield in R v Silley[56] seemed to imply that nothing said during the voir dire in the absence of the jury could be given in evidence subsequently in their presence. But Justice Skerman in R v Gray[57] refused to accept this as a general proposition, stating that the Prosecution could ‘call evidence to prove an inconsistent statement by the accused’ in the course of the voir dire (after cross-examination). Similarly, the Judicial Committee of the Privy Council has held in Wong Kam-ming v R,[58] that the Prosecution cannot lead evidence regarding the testimony given by accused during the voir dire (even if the challenged material is admitted into evidence) but can cross-examine as to what the accused said if the challenged material was admitted and the accused has made statements in the trial proper inconsistent with his statements on the voir dire.[59] In the High Court decision of MacPherson v R, Justice Mason seemed to accept this approach,[60] while Chief Justice Gibbs and Justice Wilson simply stated that these ‘questions remain to be decided in this Court’.[61] The House of Lords in R v Brophy[62] did not clearly resolve the problem when it held that evidence given by the accused in the course of the voir dire, if it is relevant to that voir dire, is inadmissible in the substantive trial; it did not make clear whether it accepted or rejected the limited cross-examination exception suggested in Wong Kam-ming.[63]
327. Confession Denied and Allegations of lmpropriety. If the accused claims only that he did not make the alleged confession, that is an issue of fact for the jury and not an issue for a voir dire at all.[64] But difficulties arise when the accused claims both that he made no confession and that, even if he had, it would be inadmissible or should be excluded because of police impropriety:[65]
• Denial and Allegations of Involuntariness. Situations can arise where an accused denies making a confession and also alleges misconduct which would be capable of rendering a confession, if made, involuntary. In R v Matheson,[66] Chief Justice Bray of the South Australian Supreme Court ruled that ‘since the only evidence tending to prove threat, inducement or absence of caution came from the same witness who denied the operative effect of those matters on his mind or the making of any confession at all’, he ‘could not decide that there was an involuntary confession’, and ‘the only course’ was to leave it to the jury to decide whether the alleged confession was in fact made. This view was followed by Justice Mitchell in R v Killick.[67] Justice Dunn of the Queensland Supreme Court held in R v Fleming[68] that a voir dire could be granted even if the accused claimed no admissions were made, provided that some suggestions of involuntariness appeared from the prosecution case itself. But the Queensland Court of Criminal Appeal decided in R v Gleeson[69] that ‘the ‘confession rule’ predicates the existence of a confession the admissibility of which is to be tested by its application’, so that no issue can arise for determination on a voir dire if the accused denies making any confession. This view was accepted in R v Hart,[70] at least where the accused sought to argue involuntariness. However, the Privy Council in Ajodha v The State[71] stated that it is a fallacy:
to suppose that a [defendant’s] challenge to a statement tendered in evidence against him on the ground that he never made it and a challenge on the ground that the statement was not voluntary are mutually exclusive, so as to force on the judge a choice between leaving an issue of fact to the jury and deciding an issue of admissibility himself ...
The Privy Council held that where the accused denies authorship of his alleged written statement but admits signing it under duress, the judge must rule on admissibility.
• Denial and Allegations of Unfair Methods. In South Australia, it is clear that an accused may have a voir dire to determine whether his ‘confession’ was unfairly obtained (justifying exercise of the judicial discretion to exclude it) even though he claims that no confession was in fact made.[72] The question on the voir dire is whether evidence exists justifying discretionary exclusion of any record of the accused’s interrogation, regardless of what was in fact said.[73] Despite some authority against this view,[74] it is now also the position in Queensland.[75] Support was derived from the High Court decision of Driscoll v R[76] for the proposition that a trial judge cannot abdicate his responsibility to rule on evidence and may have to decide whether police questioning was fair or not notwithstanding a denial by the accused of having made an admission.[77]
In MacPherson v R, Chief Justice Gibbs and Justice Wilson[78] were:
unable to see any distinction for present purposes between a case in which an accused who denies having made any confession alleges that he was subjected to inducements or pressure, and one in which the accused who also denies the making of a confession alleges that he was treated unfairly or improperly. In our opinion a voir dire should be held in both cases.[79]
What is not clear is whether the trial judge should, before proceeding to consider whether an alleged confession by the accused was voluntary or should be excluded under the discretion, decide only whether a reasonable jury could be satisfied it was made or go further and decide whether he is himself so satisfied. They did not expressly decide this issue, although they did re-assert that the ‘condition of the admissibility of a confession is that it was voluntarily made’.[80] They did however refer approvingly to the decision of the Judicial Committee of the Privy Council in Ajodha v The State.[81] The Privy Council held that, where an accused denies making any admissions but admits signing a fabricated confession under duress, the trial judge will have to consider the question of authorship before deciding the issue of voluntariness—‘one can hardly envisage a case where a judge might decide that an accused was not responsible for the contents of the statement but had signed it voluntarily ... if it is necessary to consider the issue of authorship before the judge can be satisfied that the statement was signed voluntarily, there is in truth no usurpation [of the jury’s function] but only a discharge by the judge of his necessary function in deciding the question of admissibility’.[82] The question arises whether the same conclusion would follow where the accused claims he made no admissions, but asserts that the circumstances of interrogation were such that any admissions (had they in fact been made) would have been involuntary. Justice Murphy in Cleland v R[83] clearly thinks so, arguing that it would be ‘artificial’ to decide the voluntariness of a confession without any ‘satisfaction’ that it was made. But the rest of the High Court in Cleland did not advert to this question.
[1] As distinct from the tribunal of fact. Harris v Minister for Public Works (NSW) [1912] HCA 56; (1912) 14 CLR 721; Wendo v R [1963] HCA 19; (1963) 109 CLR 559, 572; Basto v R [1954] HCA 78; (1954) 91 CLR 628. There seems to be an exception to this proposition where the only aspect of admissibility in question is relevance—the finding of fact is then for the jury.
[2] The term is derived from the ‘oath’ made by those giving evidence in the hearing: ‘You shall true answer make to all such questions as the Court shall demand of you’.
[3] [1847] EngR 10; (1847) 10 QB 314; 116 ER 122.
[4] (1871) LR 2 P & D 248.
[5] [1870] UKLawRpExch 18; (1870) LR 5 Exch 155.
[6] Cornelius v R (1936) 55 CLR 235, 249; MacPherson v R [1981] HCA 46; (1981) 55 ALJR 594. But note that the Privy Council in Ajodha v The State [1981] 2 All ER 193, 202 indicated that a voir dire ‘will normally be in the absence of the jury, but only at the request of or with the consent of the defence’.
[7] [1950] 1 KB 606, 610-1.
[8] (1977) 137 CLR 20, 31.
[12] id, 23.
[13] id, 28.
[15] id, 567.
[16] JH Chadbourn (ed) Wigmore on Evidence, Little, Brown & Co, Boston, 1974, vol 5, para 1385.
[17] JA Gobbo, D Byrne & JD Heydon, Cross on Evidence, 2nd Aust edn. Butterworths. Sydney, 1979, para 3.7; SL Phipson, Best on Evidence. 12th edn, Sweet & Maxwell. London, 1922, 70; JH Buzzard, R May & MN Howard, Phipson on Evidence, 12th edn, Sweet & Maxwell, London, 1976, para 20; JB Matthews & GF Spear, Taylor on Evidence, 11th edn, Sweet & Maxwell, London, 1920, vol 1, 375-6.
[18] Taylor on Evidence, vol 11, para 1393; Butler v Carver [1818] EngR 796; (1818) 2 Stark 433; 171 ER 696.
[19] [1866] UKLawRpCP 73; (1866) LR 1 CP 699.
[20] Erie CJ. Byles and Montague Smith JJ. Only Willes J argued that the use of affidavits serves convenience and expense.
[21] JM Maguire& CS Epstein, ‘Rules of Evidence in Preliminary Controversies as to Admissibility’ ( 1927) 36 Yale LJ 1101, 1111.
[23] MacLennan v Hastings Transport Pty Ltd [1969] VicRp 48; [1969] VR 376.
[24] [1981] HCA 46; (1981) 55 ALJR 594, 598 (Gibbs CJ and Wilson J), 602 (Mason J), 603 (Aickin J), 607 (Brennan J). The High Court thus preferred the Victorian approach in R v Deathe [1962] VicRp 90; [1962] VR 650 and R v Batty [1963] VicRp 65; [1963] VR 451 to the New South Wales view expressed in R v Mahoney-Smith [1967] 1 NSWR 154, 160; R v Robinson [1969] 1 NSWR 229 and R v MacPherson [1980] 1 NSWLR 612, 616 (CCA).
[25] id, 597.
[26] id, 599.
[27] id, 601.
[28] id, 606.
[29] ibid.
[30] [1981] 2 All ER 193, 201-3.
[31] MacPherson v R [1981] HCA 46; (1981) 55 ALJR 594.
[32] R v Bradshaw (1978) 18 SASR 83, 87 (Bray CJ).
[33] MacPherson v R [1981] HCA 46; (1981) 55 ALJR 594, 602 (Mason J); Dixon v McCarthy [1975] 1 NSWLR 617, 634; R v Bradshaw (1978) 18 SASR 83, 86; Fry v Jennings (1983) 25 NTR 19.
[34] MacPherson v R [1981] HCA 46; (1981) 55 ALJR 594, 598 (Gibbs CJ and Wilson J); R v Williams (1976) 14 SASR 1, 3; Collins v R [1980] FCA 72; (1980) 31 ALR 257, 267; R v MacPherson [1980] 1 NSWLR 612, 616.
[36] See also the Canadian Supreme Court decision of De Clercq v R (1968) 70 DLR (2d) 530.
[37] (1941) 28 Cr App R 84, 87.
[39] [1969] TASStRp 15; [1969] Tas SR 99.
[40] [1969] SASR 256, 260. Bray CJ did not think it at all relevant to exercise of the discretion.
[41] R v Toomey [1969] TASStRp 15; [1969] Tas SR 99, 102; R v Hart [1977] 17 SASR 100, 102.
[42] [1969] TASStRp 15; [1969] Tas SR 99, 105.
[43] (1975) 132 CLR 258, 263—without really deciding in what circumstances the judicial discretion should be exercised. They noted that it had been suggested that there are strong reasons why the judge on the voir dire should exercise his discretion to prevent the accused from being cross-examined as to his guilt.
[44] [1946] HCA 55; (1946) 73 CLR 316, 323.
[45] See also R v Bodsworth (1968) 87 WN (Pt 1) (NSW) 290, 298 (CCA).
[46] [1980] AC 247, 256, 257. This view accords with that of the US Supreme Court: Jackson v Denno [1964] USSC 163; (1964) 378 US 368; Lego v Twomey [1972] USSC 5; (1972) 404 US 477. See PK Waight & CR Williams, Cases and Materials on Evidence, Law Book Co, Sydney, 1980. 737-8; P Murphy, ‘Truth on the Voir Dire: A Challenge to Wong Kam-Ming’ [1979] Crim L Rev 364.
[47] id, 263.
[48] id, 264.
[49] See Federal/Provincial Task Force Report on Uniform Rules of Evidence, Canada. Carswell Co, Toronto, 1982, para 13.5(f): Sinclair v R [1946] HCA 55; (1946) 73 CLR 316, 323 (Latham CJ); R v Bodsworth (1968) 87 WN (Pt 1) (NSW) 290, 298; MacPherson v R [1981] HCA 46; (1981) 55 ALJR 594, 598 (Gibbs CJ and Wilson J). The problems maybe illustrated by the judgment of the Western Australian Court of Criminal Appeal in the recent decision of Frijaf v R [1982] WAR 128.
[50] R v Gray [1965] Qd R 373; R v Toner [1966] QWN 44; R v Post and Georgee [1982] Qd R 495.
[51] R v Toomey [1969] TASStRp 15; [1969] Tas SR 99.
[52] R v Wright [1969] SASR 256.
[53] Ex parte Whitelock: Re Mackenzie [1971] 2 NSWLR 534, 539.
[54] R v Wright [1969] SASR 256, 262 (Bray CJ), 270 (Chamberlain J), 277 (Zelling AJ); Ex parte Whitelock: Re Mackenzie [1971] 2 NSWLR 536, 539 (Meares J).
[55] R v Wright [1969] SASR 256, 264-6 (Bray CJ), 270-2 (Chamberlain J), 278 (Zelling AJ); R v Toomey [1969] TASStRp 15; [1969] Tas SR 99.
[57] [1965] Qd R 373, 378.
[58] [1980] AC 247.
[59] The cross-examination only goes to the accused’s credit.
[60] [1981] HCA 46; (1981) 55 ALJR 594, 602-3.
[61] id, 598.
[62] [1982] AC 476, 481, 483.
[63] A Hutchinson, ‘Third Time Unlucky’ (1981) 131 NLJ 1126, 1127.
[64] R v Gleeson [1975] Qd R 399 (CCA): R v Hinton (1977) 4 PSR 1719, 1721 (Street CJ).
[65] eg, the accused claims that the police offered him an inducement to confess. which would render any subsequent confession involuntary and inadmissible. but also denies in fact making a confession at all.
[66] [1969] SASR 53, 56.
[67] (1979) 21 SASR 321, 332: ‘It is useless to have an examination upon the voir dire.
[68] [1975] QLR No 13, 24 March 1975.
[69] [1975] Qd R 399, 400, 402 (Wanstall SPJ, Douglas and Hoare JJ concurring generally).
[70] [1979] Qd R 8, 13-14 (CCA).
[72] R v White (1976) 13 SASR 276; R v Stafford (1976) 13 SASR 392, 397-8; R v Eyres (1977) 16 SASR 226, 232; R v Killick (1979) 21 SASR 321.
[73] R v White (1976) 13 SASR 276, 280.
[74] R v Gleeson [1975] Qd R 399 (CCA).
[75] R v Borsellino [1978] Qd R 507, 508; R v Hart [1979] Qd R 8, 13-14 (CCA).
[76] [1977] HCA 43; (1977) 137 CLR 517, 540-1.
[77] R v Borsellino [1978] Qd R 507, 508 (Dunn J).
[78] The rest of the High Court (Mason, Aickin and Brennan JJ) did not consider it necessary to decide this question expressly.
[79] [1981] HCA 46; (1981) 55 ALJR 594, 597.
[80] ibid.
[81] [1981] 2 All ER 193 (on appeal from the Court of Appeal of Trinidad and Tobago).
[82] id. 201.
[83] [1982] HCA 67; (1982) 43 ALR 619, 629.
| A-G (Victoria) v Riach [1978] VicRp 32; [1978] VR 301
|
App C 208
|
| 172
| |
| AM & S Europe Ltd v Commission of the European Communities [1983] 3 WLR 17
|
877
|
| Abinger v Ashton (1873) 17 LR Eq 358
|
735
|
| Adami v R [1959] HCA 70; (1959) 108 CLR 605
|
500
|
| Adams v Id (1700) 12 Mod 375, 88 ER 1389
|
623
|
| Adams v Batley [1887] UKLawRpKQB 50; (1887) 18 QBD 625
|
104, App C 208
|
| Adams v Lloyd [1858] EngR 835; (1858) 3 H & N 351
|
126, App C 210, 257
|
| Adelaide Chemical and Fertilzer Co v Carlyle [1940] HCA 44; [1940] 64 CLR 514
|
330, App C 80, 82
|
| Airlines of NSW v NSW [No 2] [1965] HCA 3; (1965) 113 CLR 54
|
App C 221, 271
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| Ajodha v The State [1981] 2 All ER 193
|
142, 193, App C 131, 316
|
| Alabaster v Harness (1894) 70 LT 375
|
App C 208
|
| Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542
|
301, 323, 343, App C 41
|
| Alchin v Commissioner for Railways [1935] NSWStRp 23; (1935) 35 SR (NSW) 498
|
307, App C 48, 49
|
| Alchurch v Healey [1927] SAStRp 38; [1927] SASR 370
|
480
|
| Alexander v R [1981] HCA 17; (1981) 34 ALR 289
|
127, 131, 424, 434, 435, 974, App C 28, 84, 85, 188, 189, 190
|
| Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No 2) [1972] 2 QB 102, [1974] AC 405
|
109, 445, App C 233, 242
|
| 866, 885, App C 244
| |
| Allen v City Bank of Sydney [1902] NSWStRp 80; (1902) 2 SR NSW Eq 143
|
112, App C 237
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| Allied Interstate (Qld) Pty Ltd v Barnes [1968] HCA 76; (1968) 118 CLR 581
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App C 127
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| Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1, 44 ALR 607
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App C 50, 285
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| Alterskye v Scott [1948] 1 All ER 469
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716
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| Anchor Products v Hedges [1966] HCA 70; (1966) 115 CLR 493
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98, App C 287
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| Andasteel Constructions Pty Ltd v Taylor [1964] VicRp 17; [1964] VR 112
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117, 453-4
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| Anderson v Bank of British Columbia [1876] UKLawRpCh 145; (1876) 2 Ch D 644
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109, 112, 877, App C 233, 237
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| Anderson v Chigwidden [1961] VicRp 89; [1961] VR 564
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App C 265
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| Anderson v Commissioner for Railways (1960) 60 SR (NSW) 519
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App C 173
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| Anderson v Eric Anderson Radio and TV Pty Ltd [1965] HCA 61; (1965) 114 CLR 20
|
166, App C 224
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| Anderson v Morris Wools Pty Ltd [1965] Qd R 65
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645
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| Andrew v W Pridham (Aust) Pty Ltd [1974] VicRp 74; [1974] VR 620
|
App C 265
|
| Andrews v Armitt (1971) 1 SASR 178
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App C 18
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| Andrijich v D’Ascanio [1971] WAR 140
|
97, App C 286, 287
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| Anglim & Cooke v Thomas [1974] VicRp 45; [1974] VR 363
|
136, App C 125
|
| Arbon v Fussell (1862) 3 F and F 152
|
501
|
| Ashburton v Pape [1913] UKLawRpCh 80; [1913] 2 Ch 469
|
112, App C 237
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| Associated Pulp & Paper Mills Ltd v The Ship ‘Mareike’, unreported, NSW Admiralty Court (19 September 1979)
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707
|
| Atkinson v Atkinson (1825) 2 Add 468
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115, App C 197
|
| Atkinson v Morris [1896] UKLawRpPro 48; [1897] P 40
|
330
|
| Attorney General v Martin [1909] HCA 74; (1909) 9 CLR 713
|
App C 131
|
| Attorney General v Mulholland [1963] 1 All ER 767
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948
|
| Attorney-General (NSW) v Findlay (1976) 50 ALJR 637
|
886
|
| Attorney-General v Bowman (1791) 2 B & P 532, 126 ER 1423
|
App C 172
|
| Attorney-General v Clough [1963] 1 All ER 420
|
954
|
| Attorney-General v Jonathon Cape Ltd [1976] QB 752
|
App C 242
|
| Attorney-General v Martin [1909] HCA 74; (1909) 9 CLR 713
|
App C 130
|
| Attorney-General v Mulholland & Foster [1963] 1 All ER 767
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954
|
| Attorney-General v Newcastle-upon-Tyne Corporation [1899] UKLawRpKQB 162; [1899] 2 QB 478
|
App C 231
|
| Attorney-General v Radloff [1854] EngR 636; (1854) 10 Exch 84
|
App C 211
|
| Attwood v R [1960] HCA 15; (1960) 102 CLR 353
|
94, 164-5, 173, 789, App C 166, 167, 170, 171, 187
|
| Auckland City Council v Jenkins [1981] 2 NZLR 363
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831
|
| Austin v Austin [1905] VicLawRp 48; [1905] VLR 564
|
App C 113
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| Australian Building Construction Employees’ and Builders Labourers’ Federation v David Syme & Co Ltd [1982] FCA 43; (1982) 59 FLR 48
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221
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| Australian Communist Party v The Commonwealth [1951] HCA 5; (1950-51) 83 CLR 1
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App C 271
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| Australian Communist Party v The Commonwealth [1951] HCA 5; (1951) 83 CLR 1
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481, 969
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| Australian National Airlines Commission v Commonwealth of Australia [1975] HCA 33; (1975) 132 CLR 582
|
App C 63, 242
|
| Australian Safeway Stores Pty Ltd v Gorman [1973] VicRp 55; [1973] VR 570
|
550
|
| Axon v Axon [1937] HCA 80; (1937) 59 CLR 395
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App C 287
|
| BBT and JMT [1979] FamCA 82; (1980) FLC 90-809
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App C 91, 109
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| Baker v Campbell (1983) 49 ALR 385, 57 ALJR 749
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112, 438, 440, 852, 877-9, 890, App C 230, 235, 237
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| Bank of NSW v Cth (Bank Nationalisation Case) [1948] HCA 7; (1948) 76 CLR 1
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App C 271
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| Bank of Russian Trade Ltd v British Screen Productions Ltd [1930] 2 KB 90
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881
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| Bar Mordecai and Bar Mordecai [1982] FamCA 28; (1982) FLC 91-260
|
131, 334-5
|
| Barca v R [1975] HCA 42; (1975) 133 CLR 82
|
App C 114, 116
|
| Barclays Bank v Cole [1967] 2 QB 738
|
385, 771
|
| Barden v Barden (1921) 21 SR (NSW ) 588
|
App C 251
|
| Barker v Fauser [1962] SASR 176
|
App C 278
|
| Barkway v South Wales Transport Limited [1949] 1 KB 54
|
342
|
| Barnes & Co Ltd v Sharpe (1910) 11 CLR 46294
|
App C 59
|
| Barren v Steel Products Distributing Co Pty Ltd [1962] NSWR 981
|
App C 123
|
| Barton v Csidei [1979] 1 NSWLR 524, ACLR 40, 519
|
540, App C 236
|
| Bassett v Ferguson [1952] VicLawRp 28; [1952] VLR 481
|
623
|
| Bassett v Host [1982] 1 NSWLR 206
|
295
|
| Basto v R [1954] HCA 78; (1954) 91 CLR 628
|
140, 142, 144, 761, App C 130, 131, 134
|
| Bataillard v R [1907] ArgusLawRp 65; (1907) 4 CLR 1282
|
258, App C 11
|
| Bater v Bater [1951] P 35
|
App C 286, 287
|
| Bates v Nelson (1973) 6 SASR 149
|
343, 707, App C 94
|
| Beamish v R [1962] WAR 85
|
141, 144, App C 130, 131, 132, 133
|
| Bearmans Limited v Metropolitan Police District Receiver [1961] 1 All ER 384
|
342
|
| Beecham Group Ltd v Bristol Myers Co and Another (1977) 51 ALJR 848
|
999
|
| App C 237
| |
| Beese v Governor of Ashford Remand Centre [1973] 3 All ER 689
|
App C 148
|
| Begley v AG (NSW) [1910] HCA 69; (1910) 11 CLR 432
|
App C 154
|
| Bell v Bell [1970] SASR 310
|
124, App C 251
|
| Bell v David Jones Ltd [1948] NSWStRp 77; (1948) 49 SR (NSW) 223
|
112, App C 237
|
| Bell v University of Auckland [1969] NZLR 1029
|
890
|
| Beneficial Finance Corporation Co Ltd v Conway [1970] VicRp 39; [1970] VR 321
|
174, 342, App C 63
|
| Bennett v R (1982) 6 A Crim R 381
|
App C 193
|
| Bentley v Nelson [1963] WAR 89
|
447, App C 250, 251, 252
|
| Berjak (Victoria) Pty Ltd v Peerless Processing Co Pty Ltd [1963] VicRp 71; [1963] VR 515
|
342
|
| Berkeley Peerage Case [1811] EngR 290; (1811) 4 Camp 401
|
663
|
| Berry v Carpenter (1898) 78 LT 688
|
App C 88
|
| Bessela v Stern [1877] UKLawRpCP 37; (1877) 2 CPD 265
|
135, App C 118
|
| Birch v Somerville (1852) 2 CLR 243
|
App C 18
|
| Bird v Adams [1972] Crim L Rev 174
|
136, App C 125
|
| Birkett v AF Little Pty Ltd [1962] NSWR 492
|
App C 87
|
| Birt v Rothwell (1697) 1 Ld Raym 210
|
App C 273
|
| 167, App C 176
| |
| Bishop v Civil Service Supply Association (1922) 15 BWCC 128
|
124, App C 254
|
| Black v Goldman [1919] ArgusLawRp 109; [1919] VLR 689
|
102, App C 271
|
| Blackburn v DPP [1975] AC 421
|
813
|
| Blake v Albion Life Assurance Society [1878] UKLawRpCP 67; (1878) 4 CPD 94
|
166, App C 173
|
| 550
| |
| Blow v Norfolk County Council [1967] 1 WLR 1280
|
App C 253
|
| Blunt v Park Lane Hotel Limited [1942] 2 KB 253
|
104, App C 208
|
| Boardman v DPP [1975] AC 421
|
165
|
| Bonkowsky v Bonkowsky (1960) NSWR 251
|
App C 98
|
| Borowski v Quayle [1966] VicRp 54; [1966] VR 382
|
131, App C 91
|
| Boston v WS Bagshaw & Sons [1967] 2 All ER 87
|
125, 247, App C 241
|
| Bowman Dairy Co v United States[1951] USSC 47; , 341 US 214
|
App C 206
|
| Bowron v Bowron [1982] FamCA 66; (1982) FLC 91-270
|
221
|
| Bowskill v Dawson [1954] 1 QB 288
|
342
|
| Bradley v Armstrong [1981] FCA 177; (1981) 39 ALR 118
|
221, 494
|
| Bradshaw v McEwans, unreported, H Ct (1951)
|
98, App C 287
|
| Brailey v Rhodesia Consolidated Ltd [1910] UKLawRpCh 58; [1910] 2 Ch 95
|
App C 98
|
| Brambles Holdings Ltd v TPC [1981] ATPR 40-221
|
439, App C 236
|
| Brandao v Barnett (1846) 12 C 1 & F 787[1846] EngR 983; , 8 ER 1622
|
App C 271
|
| Brandi v Mingot (1976) 12 ALR 551
|
550
|
| Branzburg v Hayes [1972] USSC 169; 408 US 665
|
949
|
| Brayley v Wilton [1976] 2 NSWLR 495
|
App C 230
|
| Brebner v Bruce [1950] HCA 36; [1950] 82 CLR 161
|
App C 265
|
| Breen v Minister Administering the Environmental Assessment Act 1979 (1981) 48 LGRA 275
|
App C 242
|
| Breen v Sneddon [1961] HCA 67; (1961) 106 CLR 406
|
App C 271
|
| Bridge v R [1964] HCA 73; (1964) 118 CLR 600
|
198, 258, 278, 550, App C 11-2, 14
|
| Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
|
96-7, 474, 999, App C 285, 286, 287, 289
|
| Brillant Gold Mining Co v Craven (1898) 9 QLJ 144
|
App C 271
|
| British Steel Corporation v Granada Television Limited [1981] AC 1096, 1 All ER 417
|
540
|
| Broad v Pitt [1829] EngR 366; (1828) 3 Car & P 578
|
115, App C 197, 202
|
| Broome v Broome [1955] 2 WLR 401
|
863
|
| Brown v R [1913] HCA 70; (1913) 17 CLR 570
|
330, App C 82, 237
|
| Brown v R [1980] Tas SR 61
|
App C 50
|
| Brown v US, 411 US 223 (1973)
|
961
|
| Browne v Dunn (1893) 6 R 67
|
597, 602-3, 635, App C 52
|
| Bruce v Waldron [1963] VicRp 1; [1963] VR 3
|
App C 242
|
| Brunsgard v Jennings [1974] WAR 36
|
App C 3
|
| Buckley v Wathen [1973] VicRp 51; [1973] VR 511
|
App C 102
|
| Bugg v Day [1949] HCA 59; (1949) 79 CLR 442
|
172, App C 98, 180
|
| Bullivant v Attorney-General for Victoria [1901] UKLawRpAC 15; [1901] AC 196
|
441, App C 237
|
| Bulstrode v Trimble [1970] VicRp 104; [1970] VR 840
|
208, App C 50, 54
|
| Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54, 52 AUR 561
|
127, 149, 151, 226-7, 417, 470, 481, 647, 959, 960, 964, 974, 1002, 1005, App C 141, 189
|
| Burger King Corporation v Registrar of Trade Marks [1973] HCA 15; (1973) 47 ALJR 237
|
158
|
| Burmah Oil Co Ltd v Bank of England [1979] UKHL 4; [1980] AC 1090
|
App C 244
|
| Burman v Woolf [1939] VicLawRp 42; [1939] VLR 402
|
App C 25
|
| Burns v Lipman [1975] HCA 2; (1975) 132 CLR 157
|
974
|
| Burns v R (1975) 132 CLR 258
|
94, 193
|
| Burr v Ware RDC [1939] 2 All ER 688
|
App C 122
|
| App C 25
| |
| Bursill v Tanner (1885) 16 QBD 1
|
App C 237
|
| Burton v Earl of Darnley (1869) LR 8 Eq 576
|
App C 237
|
| App C 25
| |
| Butcher v Longwarry [1939] VicLawRp 14; [1939] VLR 263
|
App C 123
|
| Butler v Board of Trade [1971] Ch 680, [1970] 3 All ER 593
|
112, 441, App C 237
|
| App C 320
| |
| Butterworth v Butterworth[1920] P 126
|
App C 172
|
| Buttes Gas & Oil Co v Hammer (No 3) [1980] 3 All ER 475
|
112, App C 237
|
| Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130
|
App C 208
|
| Calcraft v Guest [1898] UKLawRpKQB 46; [1898] 1 QB 759
|
112, App C 237
|
| Caltex Oil v The Dredge ‘Willemstad’ [1976] HCA 65; (1975) 136 CLR 529
|
295, 625
|
| Campbell Painting Corp v Reid[1968] USSC 135; , 392 US 286 (1968)
|
App C 214
|
| Capital TV & Appliances Pty Ltd v Falconer [1971] HCA 10; (1971) 125 CLR 591
|
App C 221
|
| Cappers Ltd v L & M Newman Pty Ltd [1960] NSWR 143
|
App C 122
|
| Carberry v Cook [1906] HCA 33; (1906) 3 CLR 995
|
102, App C 271
|
| Carlton and United Breweries Limited v Cassin [1955] VicLawRp 43; [1956] VLR 186
|
330
|
| Carter v US[1956] USCADC 528; , 252 F 2d 608 (1957)
|
397
|
| Cartwright v Richardson (W) & Co Ltd [1955] 1 All ER 742
|
342, App C 35
|
| Carusi v Housing Commission [1973] VicRp 19; [1973] VR 215
|
454
|
| Cassidy v Engwirda Construction Co [1967] QWN 16
|
342, App C 63
|
| Cataldi v Commissioner of Government Transport [1970] 1 NSWLR 65
|
App C 237
|
| Cavanett v Chambers [1968] SASR 97
|
160, App C 105, 273
|
| Central Railway Co v Monahan, 11 F 2d 212 (2d Cir 1926)
|
349, 351, 734
|
| Chadwick v Bowman (1886) 16 QBD 561
|
112, App C 237
|
| Chalmers v HM Advocate [1954] Scots LT 177
|
App C 141
|
| 96, 744, App C 285, 295
| |
| App C 80
| |
| Chambers v Mississippi[1973] USSC 32; , 410 US 284 (1973)
|
624
|
| Chantry Martin (a firm) v Martin [1953] 2 QB 286
|
716
|
| App C 102
| |
| Charter v Charter (1874) LR 7 HL 364
|
330
|
| Cheatle v Considine [1965] SASR 281
|
App C 278
|
| Cheers v Porter [1931] ArgusLawRp 105; (1931) 46 CLR 521
|
243, App C 1
|
| Church of the New Faith v Commissioner for Payroll Tax [1983] VicRp 10; [1983] VR 97
|
App C 102
|
| Clark King and Co Pty Ltd v Australian Wheat Board [1978] HCA 34; (1978) 21 ALR 1
|
App C 271
|
| Clark v Ryan [1960] HCA 42; (1959-60) 103 CLR 486
|
157, 742, App C 98, 103
|
| Cleland v Boynes (1978) 19 SASR 464
|
App C 240
|
| 100, 142, 149, 152, 193, 226, 761, 768, 960, App C 130, 131, 148, 293
| |
| Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466
|
App C 306
|
| Cock v Stawell Amalgamated etc Mining Co [1898] VicLawRp 60; (1898) 24 VLR 165
|
App C 265
|
| Cole v Dick [1979] Tas SR 14
|
483
|
| Collaton v Correl [1926] SAStRp 12; [1926] SASR 87
|
App C 27
|
| Colledge’s Case (1681) 8 How St Tr 549
|
623
|
| Collier v Nokes [1849] EngR 1119; (1849) 2 Car & Kir 1012
|
App C 271
|
| 304
| |
| Collins v R [1980] FCA 72; (1980) 31 ALR 257
|
140-1, 144, 151, 191, 761, App C 130-5, 144, 148, 324
|
| Columbia and Puget Sound Railway Co v Hawthorne [1892] USSC 103; 144 US 202
|
App C 57
|
| Commercial Bank of Australia Ltd v Whinfield [1920] ArgusLawRp 61; [1920] VLR 225
|
881
|
| Commissioner for Government Trust Board v Adamcik [1961] HCA 43; (1961) 106 CLR 292
|
334
|
| Commissioner for Railways (NSW) v Young [1962] HCA 2; (1962) 106 CLR 535
|
App C 62
|
| Commissioner for Railways v Murphy (1967) 41 ALJR 77
|
App C 311
|
| Commissioner for Railways v Small [1938] NSWStRp 29; (1948) 38 SR (NSW) 564
|
886
|
| Commissioner of Customs and Excise v Harz [1967] 1 AC 760
|
139, 141, 761, App C 131
|
| Commissioner of Inland Revenue v West-Walker [1954] NZLR 191
|
App C 230
|
| Commmissioner for Railways v Small [1938] NSWStRp 29; [1938] 38 SR (NSW) 564
|
104, App C 208
|
| Commonwealth Freighters v Sneddon [1959] HCA 11; (1959) 102 CLR 280
|
App C 271
|
| Commonwealth Shipping Representative v P & O Branch Services [1923] AC 191
|
480
|
| Commonwealth v Frost (1982) 61 FLR 378
|
877, App C 230
|
| Commonwealth v Lykus, 327 NE 2d 671, 678 (1975)
|
App C 104
|
| Commonwealth v New South Wales (1923) 32 CLR 200
|
969
|
| Compagnie Financiere v The Peruvian Guano Company [1883] UKLawRpKQB 95; (1882) 11 QBD 55
|
716
|
| Comptroller of Customs v Western Lectric Co Ltd [1966] AC 367
|
App C 125
|
| Connor v Blacktown District Hospital [1971] 1 NSWLR 713
|
166
|
| Constantinou v Frederick Hotels Ltd [1966] 1 WLR 75
|
678
|
| Controlled Consultants v Commissioner for Corporate Affairs [1984] VicRp 11; [1984] VR 137
|
862
|
| Conway v Rimmer [1968] UKHL 2; [1968] AC 910
|
App C 242
|
| Conwell v Tapfield [1981] 1 NSWLR 595
|
174, 175, 179, 180, 492, App C 62
|
| Cook v Carroll [1945] IR 515
|
App C 202
|
| Cooper v R [1961] HCA 16; (1961) 105 CLR 177
|
316
|
| Cooper-King v Cooper-King [1900] UKLawRpPro 8; [1900] P 65
|
App C 98
|
| Coppolino v State, 223 So 2d 68 (1968)
|
357
|
| Corbett v Social Security Commission [1962] NZLR 878
|
App C 242
|
| Cornelius v R (1936) 55 CLR 235
|
140-1, 143-4, 150, App C 130, 131, 132, 136, 146, 316
|
| Cornish v Daykin (1845) 5 LTOS 130
|
App C 241
|
| Coward v Motor Insurers Bureau [1962] 1 All ER 531
|
App C 80
|
| Cracknell v Smith [1960] 3 All ER 569
|
489
|
| Cradington v Cooney [1902] QSR 176
|
App C 271
|
| Craig v R [1933] HCA 41; (1933) 49 CLR 429
|
App C 194
|
| Crawley v Laidlaw [1930] ArgusLawRp 50; [1930] VLR 370
|
App C 278
|
| Creland v Knowler (1951) 35 Cr App R 48
|
489
|
| Cresent Farm Sports v Sterling Offices [1972] Ch 553
|
App C 237
|
| Cronau v Cahill (1952) QSR 183
|
App C 271
|
| Crowley v Murphy [1981] FCA 31; (1981) 34 ALR 496
|
App C 230
|
| Crutchfeld v Lee [1934] VicLawRp 14; [1934] VLR 146
|
489
|
| Cucinotta v Nominal Defendant (1961) 61 SR (NSW) 23
|
App C 57
|
| Culley v Silhouette Health Studios Pty Ltd [1966] 2 NSWR 640
|
166, App C 173
|
| Culombe v Connecticut[1961] USSC 127; , 367 US 568 (1960)
|
759
|
| Cuming Smith and Co Ltd v Westralian Farmers Co-op Ltd [1979] VicRp 15; [1979] VR 129
|
97, App C 286-7
|
| Curtis v R [1972] TASStRp 5; [1972] Tas SR 21
|
App C 20, 116-7
|
| Curwood v R [1944] HCA 40; (1944) 69 CLR 561
|
172-3, 411, App C 187
|
| Cushing v R [1977] WAR 7
|
173, App C 187
|
| 885, 877, 935, 944, App C 237, 244
| |
| DDP v Hester [1973] AC 296
|
App C 308-9
|
| DDP v Kilbourne [1973] AC 729
|
App C 308
|
| DPP v A & BC Chewing Gum Ltd [1968] 1 QB 159
|
App C 102
|
| DPP v Boardman [1975] AC 421
|
165, 810, App C 170
|
| DPP v Hester [1973] AC 296
|
490
|
| DPP v Kilbourne [1973] AC 729
|
94, 489, 490
|
| DPP v Ping Lin [1976] AC 574
|
140-1, 761, App C 130
|
| DPP v Walker [1974] 1 WLR 1090
|
592
|
| Da Costa v The Queen [1968] HCA 51; [1968] 118 CLR 186
|
App C 18
|
| Dahl v Grise [1981] VicRp 50; [1981] VR 513
|
160, App C 105
|
| Dairy Farmers Co-operative v Acqualina [1963] HCA 59; (1963) 109 CLR 458
|
282
|
| Damon v Snyder [1970] VicRp 11; [1970] VR 81
|
334
|
| Dass v Masih [1968] 2 All ER 226
|
342, App C 94
|
| Davern v Messel [1983] FCA 27; (1983) 45 ALR 667
|
221
|
| Davey v Harrow Corporation [1957] 2 WLR 941, [1958] IQB 60
|
App C 271
|
| David Syme & Co Ltd v Mather [1977] VicRp 58; [1977] VR 516
|
App C 57, 149
|
| Davidson v Davidson (1860) 22 D 749
|
735
|
| Davidson v Quirke (1923) 42 NZLR 552
|
App C 82
|
| Davies and Cody v R [1937] HCA 27; (1937) 57 CLR 170
|
424, 838, App C 189
|
| Davies v DPP [1954] AC 378
|
210, App C 299-301
|
| Davies v Nyland (1974) 10 SASR 76
|
App C 250, 252, 253
|
| Davies v Taylor [1974] AC 207
|
98, App C 286
|
| Davies v Waters [1842] EngR 283; (1842) 9 M & W 608
|
126, App C 257
|
| Davis v Bunn [1936] HCA 44; (1936) 56 CLR 246
|
App C 288
|
| Davis v Langdon [1911] NSWStRp 22; (1911) 11 SR (NSW) 149
|
645
|
| Davy v Morrison [1931] 4 DLR 619
|
160, 743, App C 105
|
| Dawson v R [1961] HCA 74; (1961) 106 CLR 1
|
173, App C 187
|
| Day v Dyson [1965] VicRp 22; [1965] VR 165
|
App C 88, 127
|
| De Beeche v South American Stores Ltd [1935] AC 148
|
App C 98
|
| De Clercq v R (1968) 70 DLR (2d) 530
|
193, App C 325
|
| De Gioia v Darling Island Stevedoring and Lighterage Co Ltd (1941)42 SR (NSW) 1
|
550
|
| Dellas v Fay, unreported, No 86 of 1966
|
App C 161
|
| Dellit v Small [1978] Qd R 303
|
App C 148
|
| Demasi v Fraser [1965] SASR 284
|
App C 100
|
| Demeter v R (1977) 75 DLR (3d) 251
|
330
|
| Demirok v R (1977) 137 CLR 20
|
188
|
| Denver v Cosgrove (1972) 3 SASR 130
|
102, App C 271
|
| Deokinan v R [1969] 1 AC 20
|
141, App C 131
|
| Deputy Commissioner of Taxation v WR Moran Pty Ltd [1939] HCA 27; (1939) 61 CLR 735
|
App C 271
|
| Deputy Federal Commissioner of Taxation v Brown [1958] HCA 2; (1958) 100 CLR 32
|
221
|
| Devine v R [1967] HCA 35; (1967) 119 CLR 506
|
App C 221
|
| 629
| |
| Dickins v Randerson [1901] 1 KB 437
|
131, App C 91
|
| Dimitriou v Samuels (1975) 10 SASR 331
|
136, App C 125
|
| Distillers Co (Biochemicals) Ltd v Times Newspapers Ltd [1975] 1 All ER 41, [1974] 3 WLR 728
|
716
|
| Dixon v City of Glenorchy (1968) 15 LGRA 407
|
157
|
| Dixon v McCarthy [1975] 1 NSWLR 617
|
144, 191, App C 134, 148, 324
|
| Dodds v Birch (1973-4) 11 UWAL Rev 298
|
550
|
| Doe d Loscombe v Clifford [1847] EngR 393; (1847) 2 Car & K 448
|
App C 257
|
| Doe d Perry v Newton [1836] EngR 988; (1836) 5 Ad & El 514
|
500
|
| Doe v Date [1842] EngR 817; (1842) 3 QB 609
|
126, App C 257
|
| Doe v Steel (1811) 3 Camp 114
|
App C 125
|
| Donnini v R [1972] HCA 71; (1972) 128 CLR 114
|
App C 187
|
| Driscoll v R [1977] HCA 43; (1977) 137 CLR 517
|
94, 148, 152, 647, App C 25, 28, 40, 130, 147, 182
|
| Du Barre v Livette (1791) 1 Peake 108
|
App C 202
|
| Duchess of Kingston’s Trial [1675] EngR 170; (1776) 11 St Tr 198, 1 East PC 468
|
115, 774
|
| Duff v R (1979) 28 ALR 663, 39 FLR 315
|
128, 167, 425, 790, App C 57, 189, 193
|
| Duke of Buccleugh v Metropolitan Board of Works [1872] UKLawRpHL 9; (1872) LR 5 HL 418
|
247, App C 241
|
| Duncan v Cammell, Laird & Co [1942] UKHL 3; [1942] AC 624
|
App C 242
|
| Dunne v J Connelly Ltd [1963] AR (NSW) 873
|
App C 211
|
| Dunsmore v Elliott (1981) 26 SASR 496
|
App C 278
|
| Durston v Mercuri [1969] VicRp 62; [1969] VR 507
|
App C 63
|
| Eade v R [1924] ArgusLawRp 24; (1924) 34 CLR 154
|
489
|
| Eagles v Orth [1976] Qd R 313
|
355, 743, App C 103
|
| Earnshaw v Loy No 1 [1959] VicRp 43; [1959] VR 248
|
App C 154
|
| East India Co v Campbell [1749] EngR 83; (1749) 1 Ves Sen 246
|
107, App C 215
|
| Edmonds v Edmonds [1947] P 67
|
342
|
| Edwards v Brookes (Milk) Ltd [1963] 3 All ER 62
|
App C 122
|
| Elbourne v Troon Pty Ltd [1978] VicRp 15; [1978] VR 171
|
883
|
| Electrona Carbide Industries Pty Ltd v Tasmanian Government Insurance Office, unreported, No 12, Tas SC (26 February 1982)
|
111, 439, App C 235-6
|
| Ellis v Deheer [1922] 2 KB 113
|
247, 873
|
| Ellis v Home Office [1953] 2 QB 135
|
App C 242
|
| Elrick v Terjesen [1947] VicLawRp 63; [1948] VLR 184
|
102, App C 271
|
| Elsey v Federal Commissioner of Taxation(1969) [1969] HCA 48; 121 CLR 99
|
94, App C 94
|
| Elworthy v Bird (1824) 2 Bing 258
|
852
|
| English Exporters (London) Ltd v Eldonwall Ltd [1973] 1 Ch 131
|
App C 89
|
| Environmental Defence Society v South Pacific Aluminium Ltd [1981] NZCA 31; [1981] 1 NZLR 153
|
App C 244
|
| Epperson v Dampney [1904] VicLawRp 58; (1976) 10 ALR 227
|
158, 743, App C 102
|
| Escobedo v Illinois[1964] USSC 152; , 378 US 478 (1964)
|
765, 961
|
| Evans v Hartigan [1941] NSWStRp 31; (1941) 41 SR (NSW) 179, 58 WN 174
|
334, App C 83
|
| Evans v Staunton [1958] Qd R 96
|
104, App C 208
|
| Evon v Noble [1949] 1 KB 222
|
342
|
| Ex parte Attomey-General; Re Cook [1967] 2 NSWR 689
|
122
|
| Ex parte Brown; Re Tunstall [1966] NSWR 770
|
122
|
| Ex parte Dustings (1967) 87 WN (Pt 1) (NSW) 98
|
886
|
| Ex parte Freeman (1922) 39 WN (NSW) 73
|
489
|
| Ex parte Meer Houssain (1899) 15 WN (NSW) 286
|
102
|
| Ex parte Sampson; Re Governor of Her Majesty’s Penitentiary at Malabar (1966) 83 WN (Pt 2) 405
|
501
|
| Ex parte Whitelock; Re Mackenzie [1971] 2 NSWLR 534
|
193
|
| Executor Trustee & Agency Co of South Australia Ltd v The Insurance Office of Australia and the Commonwealth Railway Commissioner [1949] SAStRp 23; [1949] SASR 337
|
333
|
| F (otherwise M) v F [1950] VLR 482
|
454
|
| Fairbank v Jones (1975) 10 SASR 367
|
App C 273
|
| Falcon v Famous Players Film Co Ltd [1926] 2 KB 474
|
App C 124
|
| Falmouth v Moss (1822) 11 Price 455
|
155, App C 197
|
| Farrelly v Hircock (No 1) [1971] Qd R 341
|
App C 124
|
| Fetter v New York [1951] USSC 8; 340 US 315
|
949
|
| 160, 743, App C 105
| |
| Ferguson v Union Steamship Co of NZ [1969] HCA 73; (1968) 42 ALJR 33
|
221
|
| Ferriday v Military Board [1973] HCA 44; (1973) 47 ALJR 579
|
775
|
| Field v Commissioner for Railways for NSW [1957] HCA 92; (1957) 99 CLR 285
|
App C 251
|
| Filious v Moreland (1963) 63 SR (NSW) 331
|
282, 284
|
| Finance & Guarantee Co Ltd v Commissioner of Taxation (1970) 44 ALJR 368
|
App C 78, 123
|
| Fingleton v Lowen (1979) 20 SASR 312
|
App C 78
|
| Finlayson v Permanent Trustee: (Canberra) Ltd [1968] HCA 85; (1969) 43 ALJR 42
|
App C 223
|
| Fisher & Co v Apollinaris Co (1875) 32 LT 628
|
124, App C 254
|
| Fisher v Brown [1968] SASR 65
|
App C 100
|
| Fisher v R (1961) 130 CCC 1
|
160, 359, 743, App C 105
|
| Fitzpatrick v Walter E Cooper Pty Ltd [1935] HCA 82; (1935) 54 CLR 200
|
App C 57
|
| Flannagan v Fahe [1981] 2 Ir R 361
|
App C 52
|
| Floyd v Barker [1572] EngR 142; (1607) 12 Co Rep 23
|
125, App C 241
|
| Forace v Akker, unreported, ACT SC (30 November 1982)
|
494
|
| Forrest v Normandale (1973) 5 SASR 524
|
136, App C 118, 119
|
| Foster and Foster (1977) FLC 90—281
|
App C 91
|
| Frank Truman Export Ltd v Metropolitan Police Commissioner [1977] 3 All ER 431
|
App C 237
|
| French v Scarman (1979) 20 SASR 333
|
|
| Frijaf v R [1982] WAR 128
|
143-4, 151, 761
|
| Fromhold v Fromhold [1952] ITLR 1522
|
489
|
| Frost v R [1969] TASStRp 20; [1969] Tas SR 172
|
App C 23
|
| Frost v Stevenson [1937] HCA 41; (1937) 58 CLR 528
|
481, App C 221
|
| Fry v Jennings (1983) 25 NTR 19
|
App C 324
|
| Frye v United States, 293 F 1013 (1923)
|
355
|
| Gaggin v Moss [1983] 2 Qd R 486
|
App C 64, 81
|
| Gaio v R [1960] HCA 70; (1960) 104 CLR 419
|
284, 333
|
| Gardiner v Motherwell Machinery & Scrap Co Ltd [1961] 1 WLR 1424
|
334
|
| Garner v Garner (1920) 36 TLR 196
|
115, App C 197
|
| Garton v Hunter [1969] 1 All ER 451
|
385
|
| Gaskin v Liverpool City Council [1980] 1 WLR 1549
|
935, App C 244
|
| Gates v City Mutual Life Assurance Society Ltd [1937] ArgusLawRp 41; (1982) 43 ALR 313
|
166, App C 173
|
| General Accident Corp v Tanter [1984] 1 WLR 100
|
885
|
| General Accident Fire & Life Assurance Corporation v Commissioner of Payroll Tax (1982) 56 ALJR 775
|
App C 102
|
| General Medical Council v Spackman [1942] 2 KB 261
|
385
|
| Geschke v Del Monte Home Furnishers Pty Ltd [1981] VicRp 80; [1981] VR 856
|
17
|
| Gibb v Simpson [1942] VicLawRp 23; [1942] VLR 171
|
App C 57
|
| Gibson v Gibson [1981] FamCA 46; (1981) FLC 91-049
|
64
|
| Gilchrist v Wallace Mitchell Pty Ltd [1972] VicRp 52; [1972] VR 481
|
881
|
| Giles v Dodds [1947] VicLawRp 35; [1947] VLR 465
|
App C 278
|
| Gillespie v Steer [1973] SASR 200
|
App C 28
|
| Glenister v Glenister [1945] P 30
|
App C 269
|
| Goddard v Smith [1795] EngR 1809; (1704) 3 Salk 245
|
852
|
| Goldstone v Harrison’s Investments Pty Ltd [1938] VicLawRp 24; [1938] VLR 342
|
App C 57
|
| Goodman v Hughes (1862) 1 W & W 202
|
890
|
| Goodwin v Nominal Defendant (1980) 54 ALJR 84
|
98, App C 287
|
| Goody v Odhams Press Ltd [1967] 1 QB 333
|
385, 771
|
| Goold v Evans [1951] 2 TLR 1189
|
1027, App C 313
|
| Gordon v Carroll (1977) 27 FLR 129
|
App C 30
|
| Gordon v R (1982) 41 ALR 64
|
161, 334, App C 108
|
| Gosden v Billerwell [1980] FCA 84; (1980) 31 ALR 103
|
494
|
| Gouldham v Sharrett [1966] WAR 129
|
App C 131
|
| 108-9, 111-2, 221, 439, 445, 481, 877, 881, 974, App C 233, 234, 236
| |
| Grant v Percival [1855] EngR 390; (1855) 5 HLC 257
|
App C 113
|
| Grant v R (1976) 11 ALC 503
|
96, App C 285
|
| Grant v Southwestern & County Properties Ltd [1974] 2 All ER 465
|
App C 63
|
| Great Atlantic Insurance Co v Home Insurance Co [1981] 1 WLR 529
|
App C 237
|
| Greenborough v Gaskell [1833] EngR 333; (1833) 1 My & K 98
|
877
|
| Greenough v Eccles [1859] EngR 335; (1858) 5 CB (NS) 786
|
297
|
| 109, 115
| |
| Greenwood v Fitts (1961) 29 DLR 2d 260
|
890, App C 253
|
| Gregory v R (1983) 57 ALJR 629
|
169
|
| Grew v Cubitt [1951] 2 TLR 305
|
330
|
| Grey v Australian Motorists and General Insurance Co Ltd [1976] 1 NSWLR 669
|
137, 359, App C 125
|
| Greynell Investments Pty Ltd v Hunter Douglas Ltd, unreported, ATPR 15-140
|
1026
|
| Griffith v Williams (1830) 1 Cro & 147
|
500
|
| Griffiths v Errington (1981) 7 NTR 3
|
|
| Grismore v Consolidated Products Co (1942) 232 5 NW (2d) 646 (1942)
|
359, App C 102
|
| Guarnaccia v Rocla Concrete Pipes Pty Ltd [1976] VicRp 25; [1976] VR 302
|
135, App C 123
|
| Gudabi v R [1984] FCA 16; (1984) 52 ALR 133
|
App C 135
|
| Guineas Case (1841) Ir Circ Rep 167
|
247
|
| Gunderson v Miller [1936] SAStRp 45; [1936] SASR 206
|
App C 300
|
| Guthrie v Guthrie [1890] VicLawRp 57; (1890) 16 VLR 280, 15 VLR 612
|
App C 266
|
| Guy v R [1978] WAR 155
|
330
|
| H v Schering Chemicals Ltd [1983] 1 All ER 849
|
131, 707, App C 91
|
| HW Thompson Building Pty Ltd v Allen Property Services Pty Ltd [1983] FCA 166; (1983) ATPR 40-371
|
166, App C 173
|
| Habershon v Troby (1799) 3 Esp 38
|
App C 231
|
| Hales v Kerr [1908] UKLawRpKQB 114; [1908] 2 KB 601
|
166, App C 173
|
| Hall v R [1971] 1 All ER 322, 1 WLR 298
|
135, 489, App C 116
|
| Hamlyn v Hann Heagney [1967] SASR 387
|
App C 123
|
| Hansen v Appoo [1974] Qd R 259
|
102, App C 271
|
| Hare v Riley & AMP Society [1974] VicRp 68; [1974] VR 577
|
117, App C 201
|
| Hargan v R [1919] HCA 45; (1919) 27 CLR 13
|
210
|
| Harman v Home Office [1982] 2 WLR 338
|
716
|
| Harris v DPP [1952] AC 694
|
165, App C 170
|
| Harris v Harris [1946] VicLawRp 23; [1947] VLR 44
|
App C 224
|
| Harris v Harris [1931] P 10
|
App C 201
|
| Harris v Macquarie Distributors Pty Ltd [1967] VicRp 29; [1967] VR 257
|
App C 122
|
| Harris v Markhan [1975] WAR 93
|
App C 9
|
| Harris v Minister for Public Works (NSW) [1912] HCA 56; (1912) 14 CLR 721
|
App C 314
|
| Harris v R [1967] SASR 316
|
140, App C 130, 133
|
| Harris v Samuels (1973) 5 SASR 439
|
App C 143
|
| Hart v Lancashire and Yorkshire Rail Co (1869) 21 LTNS 261
|
645, App C 57
|
| Hart v Minister of Lands (1901) SR (NSW) 133
|
App C 94
|
| Hartzell v United States, 72 F 2d 569
|
491
|
| Harvey v Lovekin [1884] UKLawRpPro 55; (1884) 10 PD 122
|
App C 208
|
| Harvey v R [1901] UKLawRpAC 26; [1901] AC 601
|
385
|
| Harvey v Smith-Wood [1963] 2 All ER 127, [1964] 2 QB 171
|
342, App C 35
|
| Haw Tua Tau v Public Prosecutor [1981] 3 All ER 14
|
552, 757-8
|
| Hawkes v Schubach [1953] VicLawRp 66; [1953] VLR 468
|
881
|
| Haynes v Doman [1892] UKLawRpCh 36; [1892] 2 Ch 13
|
160, App C 105
|
| Heam v Hearn [1944] QWN 45
|
App C 157
|
| Helton v Allen [1940] HCA 20; (1940) 63 CLR 691
|
97, App C 286-7
|
| Henley v Henley [1955] P 202
|
124, App C 251
|
| Hennessy v Broken Hill Pty Co Ltd [1926] HCA 32; (1926) 38 CLR 342
|
125, 247, App C 241
|
| Hennessy v Wright [1888] UKLawRpKQB 117; (1888) 21 QBD 509
|
App C 206
|
| Herbert v Benson [1942] NSWStRp 18; (1942) 44 SR (NSW) 382
|
App C 127
|
| Herbert v R [1982] FCA 147; (1982) 42 ALR 631
|
App C 127
|
| Heron v Baird [1921] WALawRp 8; (1921) 23 WALR 47
|
App C 82
|
| Hetherington v Brooks [1963] SASR 321287
|
App C 26, 28
|
| Hibberd v Knight [1848] EngR 257; (1848) 2 Ex 11
|
App C 257
|
| Hickman v Taylor [1947] USSC 5; (1946) 329 US 495
|
877
|
| Hicks v R [1920] HCA 26; (1920) 28 CLR 36
|
210
|
| Hicks v Trustees Executors and Agency Co Ltd [1900] VicLawRp 41; (1900) 25 VLR 668
|
109, App C 233
|
| High Title (Ashburton) Pty Ltd v Bradmill Industries Ltd [1982] FCA 54; (1982) ATPR 40-290
|
App C 236
|
| Hill v Clifford [1907] UKLawRpCh 85; [1907] 2 Ch 236
|
385
|
| Hilton v The Lancashire Dynamo Nevelin Ltd [1964] 2 All ER 769
|
688
|
| Hinds v Sparks [1964] Crim L Rev 717
|
385
|
| Hinton v Trotter [1931] SAStRp 19; [1931] SASR 123
|
135, App C 119
|
| Hobbs v Hudson [1890] UKLawRpKQB 109; (1892) 25 QBD 232
|
App C 208
|
| Hodge v Club Motor Insurance Agency Pty Ltd (1974) 2 ALR 421
|
App C 224
|
| Hogue and Haines (1977) FLC 90-259
|
App C 91, 111
|
| Holland v Jones [1917] HCA 26; (1917) 23 CLR 149
|
102, 478, App C 263, 269, 273
|
| 94, 166, App C 57, 173
| |
| Hollington v Hewthom [1943] 1 KB 587
|
155, 162, 330, 385, 388-9, 771
|
| Holloway v McFeeters [1956] HCA 25; (1956) 94 CLR 470
|
99, 130, App C 287-8
|
| Hoobin v Samuels [1971] 2 SASR 238
|
550
|
| Horman v Bingham [1972] VicRp 2; [1972] VR 29
|
102, 479
|
| Horne v Comino [1966] Qd R 202
|
App C 125
|
| Horne v MacKenzie (1839) 6 CI & F 628[1839] EngR 1007; , 7 ER 834
|
App C 25
|
| Hoskyn v Commissioner of Police for the Metropolis [1978] 2 All ER 136
|
196, App C 9
|
| Hough v Ali Sam (1912) 15 CLR 452
|
App C 130, 269
|
| House v R (1936) 55 CLR 499
|
647, 968
|
| Houston & Stanhope v R (1984) 8 A Crim R 392
|
App C 37
|
| Hughes and Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127
|
969
|
| 109, App C 233
| |
| Hughes v Bradfield [1949] QWN 46
|
102, App C 271
|
| Hughes v National Trustees Executors and Agency Co of Australasia [1979] HCA 2; (1979) 53 ALJR 249
|
App C 82
|
| Hume v Higgins [1949] HCA 5; (1949) 78 CLR 116
|
App C 271
|
| Hunter v Chief Constable of Midland Police [1981] 1 All ER 727
|
388
|
| Hunter v Mann [1974] QB 767
|
115
|
| Hurpurshad v Sleo Dyal (1876) LR 3 Ind App 259
|
247
|
| I Waxman & Sons Ltd v Texaco Canada Ltd (1968) 67 DLR 295
|
890
|
| ITC Film Distributors v Video Exchange Ltd [1982] 2 All ER 241
|
112, 154, App C 237
|
| Ibraham v R [1914] AC 599
|
App C 131, 141, 154
|
| In Re Crippen [1911] UKLawRpPro 4; [1911] P 108
|
385
|
| In Re Pappas (1971) 358 Mass 604, 226 NE 2d 297
|
949
|
| In re Holloway [1887] UKLawRpPro 20; (1887) 12 PD 167
|
112
|
| In re Ramsay [1870] UKLawRpPC 24; (1870) LR 3 PC 427
|
124
|
| In re Van Beelen (1974) 9 SASR 163
|
717
|
| In the Marriage of Foster and Foster [1977] FamCA 71; (1977) FLC 90-281
|
334
|
| In the Marriage of Hall and Hall [1979] FamCA 73; (1979) FLC 90-713
|
359, 743
|
| In the Marriage of Hogue and Haines (1977) FLC 90-259
|
334
|
| In the Marriage of Pavey [1976] FamCA 36; (1976) 10 ALR 259
|
96
|
| In the Marriage of Whitford [1979] FamCA 3; (1979) 24 ALR 424
|
999
|
| Ipsen v Ruess 35 NW 2d 82 (1948)
|
App C 107
|
| Irvin v Whitrod [1978] Qd R 137
|
App C 236
|
| Irwin v Batt (1911) 7 Tas LR 90
|
App C 161
|
| Jackson v Denno[1964] USSC 163; , 378 US 368 (1964)
|
App C 325
|
| James v Cowan (1932) AC 542
|
App C 271
|
| lames v Robinson [1963] HCA 32; (1963) 109 CLR 593
|
439
|
| James v Treloar [1922] SAStRp 56; (1922) SASR 536
|
App C 271
|
| Jarman v Lambert & Cooke (Contractors) Limited [1951] 2 KB 937
|
342
|
| Jeffrey v Johnson [1952] 2 QB 8
|
489
|
| Jenkins v The Commonwealth [1947] HCA 41; (1947) 74 CLR 400
|
App C 271
|
| Jogender Singh Bains v Yorkshire Insurance Co Ltd (1963) 38 DLR (2d) 417
|
App C 125
|
| Johnston v Jackson (1880) 6 VLR 1
|
890, App C 253
|
| Jones v DPP [1962] AC 635
|
164, 173, App C 168, 187
|
| Jones v Dunkel [1959] HCA 8; (1958) 101 CLR 298
|
98-9, 550, App C 287-8
|
| Jones v Great Central Railway Co [1909] UKLawRpAC 23; [1910] AC 4
|
109, 112, App C 233, 237
|
| Jones v Jones [1889] UKLawRpKQB 15; (1889) 22 QBD 425
|
App C 208
|
| Jones v Jones (1907) 24 WN (NSW) 110
|
330
|
| Jones v Metcalfe [1967] 3 All ER 205
|
330, 694
|
| Jones v National Coal Board [1957] EWCA Civ 3; [1957] 2 QB 55
|
|
| Jones v South Eastern and Chatham Rail Companies Managing Committee (1918) 87 LJKB 775
|
334
|
| Jones v Stroud [1825] EngR 826; (1825) 2 C & P 196, 172 ER 89
|
App C 25
|
| Jones v Sutherland Shire Council [1979] 2 NSWLR 206
|
97, 316, 974, App C 286
|
| Jorgensen v News Media (Auckland) Limited [1969] NZLR 961
|
385, 771, 778
|
| Joseph Crosfield and Sons Ltd v Techno-Chemical Laboratories Ltd (1913) 29 TLR 378
|
App C 101
|
| Kahn v R [1971] WAR 44
|
210
|
| Kajala v Noble [1982] Crim L Rev 433
|
180, App C 62, 278
|
| Karamat v R [1956] AC 256
|
185
|
| Karidis v General Motors Holden [1971] SASR 422
|
App C 53, 54
|
| Kau Wong v R [1983] WAR 80
|
489
|
| Keegan v Green Giant Co, 150 Me 110, 283 A 2d 599 (1954)
|
491
|
| Kelleher v R [1974] HCA 48; (1974) 131 CLR 534
|
128, 209-10, 427, 842, App C 299
|
| Kelly v Commonwealth (1980) 39 FLR 372
|
App C 236
|
| Kelly v Mawson [1981] 1 NSWLR 184
|
App C 123
|
| 112, 877, 881, App C 237
| |
| Kenny v Homberg No 2 (1963) 37 ALJR 162
|
332
|
| Kent v Scattini [1961] WAR 74
|
102, App C 271
|
| Khan v R [1971] WAR 44
|
App C 300-1
|
| Killick v R [1981] HCA 63; (1981) 37 ALR 407
|
App C 170
|
| King of the Two Sicilies v Willcox [1851] EngR 134; (1851) 1 Sim NS 301
|
107, App C 212
|
| King v Bryant (2) (1956) St R Qd 570
|
App C 27
|
| King v Wilkinson (1957) 57 SR (NSW) 444
|
App C 57
|
| Kleeners Pty Ltd v Lee Tim (1959) 78 WN (NSW) 746
|
App C 113
|
| Klemenko v Huffa (1978) 17 SASR 549
|
144, App C 133
|
| Knight v Jones, ex parte Jones [1981] Qd R 98
|
165, 167, App C 57, 149, 166, 170
|
| Koowarta v Bjelke Petersen [1982] 57 ALJR 625
|
App C 271
|
| Kops v R, ex parte Kops [1894] UKLawRpAC 37; [1894] AC 650
|
592
|
| Kozul v R [1981] HCA 19; (1981) 55 ALJR 377
|
977, 1031, App C 311-2
|
| Kriss v City of South Perth [1966] WAR 210
|
166,
|
| Kristeff v R (1968) 42 ALJR 233
|
App C 311
|
| Kruglikov v Kruglikov 217 NYS 2d 845 (1961)
|
908
|
| Kruse v Lindner (1978) 19 ALR 85
|
App C 82
|
| Kurtz & Co v Spence & Sons (1888) 58 LT 438
|
890, App C 252
|
| Kyshe v Holt, Childs & Brotherton [1888] WN 128
|
12, App C 237
|
| LT & KT Conlon v Lensworth Interstate (Vic) Pty Ltd [1970] VicRp 36; [1970] VR 293
|
112, App C 237
|
| La Roche v Armstrong [1922] 1 KB 485
|
124, App C 251
|
| Lacon v Higgins (1822) Dow & Ry NP 38, 171 ER 910
|
App C 98
|
| Ladlow v Hayes (1983) 8 A Crim R 377
|
979
|
| Lake v King [1845] EngR 139; (1668-70) 1 Wms Saund 131b
|
App C 273
|
| Lamshed v Lake [1958] HCA 14; (1958) 99 CLR 132
|
App C 221
|
| Lanyon Pty Ltd v The Commonwealth (1974) 129 CLR 650
|
App C 242
|
| Lamach v Alleyne (1865) 2 W W & A’ B (E) 39
|
114, App C 195
|
| Lars v Eichstadt [1961] Qd R 457
|
166
|
| Lawless v R [1979] HCA 49; (1979) 53 ALJR 733
|
717
|
| 109, App C 233
| |
| Le Cocq v McErvale [1907] ArgusLawRp 151; [1908] VLR 69
|
App C 271
|
| Leblanc v R (1976) 29 CCC (2d) 97
|
App C 170
|
| Legge v Edmonds (1855) 25 LJ Ch 125
|
App C 113
|
| Lego v Twomey [1972] USSC 5; (1972) 404 US 477
|
App C 325
|
| Leneham v Queensland Trustees Ltd [1965] Qd R 559
|
342, App C 80, 81, 94
|
| Lenthall v Powell [1930] SAStRp 3; (1930) SASR 13
|
App C 269
|
| Leydon v Thomlinson [1979] 22 SASR 306
|
App C 53
|
| Lindsay v Union Steam Ship Co of New Zealand [1960] NZLR 486
|
447
|
| Linehan v Linehan [1924] SAStRp 43; [1924] SASR 276
|
775
|
| Livingstone v Halvorsen (1978) 22 ALR 213
|
98, App C 287
|
| App C 237
| |
| Lock v Keogh (1931) 48 WN (NSW) 250
|
App C 57
|
| Lock v Lock [1966] SASR 246
|
App C 252
|
| London General Omnibus Co Ltd v Lavell [1900] UKLawRpCh 195; [1901] 1 Ch 135
|
1027
|
| London and County Securities Ltd v Nicholson [1980] 1 WLR 948
|
App C 244
|
| Lopes v Taylor (1970) 44 ALJR 412
|
109, App C 127, 288, 289
|
| Lord Abinger v Ashton (1873) 17 LR Eq 358
|
735
|
| Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513
|
647
|
| Lowery v R [1974] AC 85
|
167, 172, 354, 885, App C 166-8, 170, 176
|
| Luder v Luder (1963) 4 FLR 292
|
742, App C 98
|
| Lustre Hosiery Ltd v York [1935] HCA 71; (1935) 54 CLR 134
|
App C 125
|
| Luxon v Vines [1952] HCA 19; (1952) 85 CLR 352
|
App C 288
|
| Lyell v Kennedy (No 2) (1883) 9 App Cas 81
|
877, 881
|
| Lyell v Kennedy (No 3) (1884) 27 Ch D l 877
|
App C 233
|
| Lynch v Lynch (1966) 84 WN (Pt 1) (NSW) 315
|
App C 83
|
| MacLennan v Hastings Transport Pty Ltd [1969] VicRp 48; [1969] VR 376
|
190, App C 122, 321
|
| MacPherson v R [1981] HCA 46; (1981) 55 ALJR 594
|
100, 152, 191, 761, 1039, App C 130, 147, 293, 316, 324-5
|
| Maddaford v Brown [1953] SASR 169
|
App C 131
|
| Maddison v Goldrick [1975] 1 NSWLR 557, [1976] 1 NSWLR 651
|
886
|
| Mahadeo v R [1936] 2 All ER 813
|
886
|
| Mahadervan and Mahadervan [1964] P 233
|
App C 297
|
| Maher-Smith v Gaw [1969] VicRp 47; [1969] VR 371
|
99, App C 287
|
| Maine v Cleaves (1871) 59 Me 298
|
556
|
| Maisel v Financial Times Ltd (1915) 84 LJKB 2145
|
App C 163
|
| Majeau Carrying Co Pty Ltd v Coastal Ruble Ltd (1973) 129 CLR 48
|
App C 271
|
| Makin v A-G for NSW [1894] AC 57
|
165
|
| Malindi v R [1967] 1 AC 439
|
App C 187
|
| Man v Ward [1741] EngR 532; (1741) 2 Atk 228
|
852
|
| Manchester Brewery Co Ltd v Coombes (1900) 82 LT 347
|
App C 78
|
| Manenti v Melbourne & Metropolitan Tramways Board [1953] VicLawRp 78; [1954] VLR 115
|
94-5, 166, App C 54, 57, 58, 149, 173
|
| Mansell v Clements [1863] EngR 605; (1874) LR 9 CP 139
|
App C 95
|
| Manser v London Passenger Transport Board [1948] WN 206
|
342
|
| Mapp v Ohio [1961] USSC 142; 367 US 643 (1961)
|
961
|
| Marcus Clarke v The Commonwealth [1952] HCA 50; (1952) 87 CLR 177
|
App C 271
|
| Markby v R [1978] HCA 29; (1978) 140 CLR 108
|
165, 785, 813, App C 170
|
| Marks v Beyfus [1890] UKLawRpKQB 125; (1890) 25 QBD 494
|
App C 205
|
| Marsh v barley [191413 KB 1226
|
489
|
| Marshall v Watt [1953] TASStRp 2; [1953] Tas SR 1
|
App C 78, 82
|
| Marshall v Wettenhall Bros [1914] ArgusLawRp 29; [1914] VLR 266
|
App C 265
|
| Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367
|
94-5, 165-6, 314, App C 58, 170, 173, 175
|
| Martin v Treacher (1886) 16 QBD 507
|
App C 208
|
| Mash v barley [1913] UKLawRpKQB 168; [1914] 1 KB 1
|
App C 151
|
| Masmec v R [1962] TASStRp 25; [1962] Tas SR 254
|
App C 20
|
| Mather & Deegan v Morgan [1971] TASStRp 17; [1971] Tas SR 192
|
343
|
| Mather v Morgan [1971] TASStRp 17; [1971] Tas SR 192
|
600, 616, 886, App C 27
|
| Mathews v Chicory Marketing Board (Vic) (1938)
|
|
| Matthews v R [1973] WAR 110
|
App C 187
|
| Matusevich v R [1977] HCA 30; (1977) 137 CLR 633
|
164, App C 143, 168, 187
|
| Maw v Dickey (1974) 6 OR (2d) 146
|
App C 80
|
| Maxwell v DPP [1935] UKHL 3; [1935] AC 209
|
164, App C 168
|
| May v O’Sullivan [1955] HCA 38; (1955) 92 CLR 654
|
550
|
| Mayor & Corporation of Bristol v Cox [1884] UKLawRpCh 119; (1884) 26 Ch D 678
|
109, 112, 439, App C 233
|
| Mazinski v Bakka (1979) 20 SASR 350
|
154, App C 149
|
| McAllerter v Richmond Brewing Co [1942] NSWStRp 17; (1942) 42 SR (NSW) 187
|
157
|
| McArthur and McArthur, unreported, Family Court (9 December 1982)
|
App C 297
|
| McAuliffe v McAuliffe (1973) 4 ACTR 9
|
155
|
| McCormack v FCT (1980) 10 ATR 722
|
App C 52
|
| McCullough v Munn [1908] 2 IR 194
|
501
|
| McCusker v R [1977] Tas SR 140
|
128-9, App C 193-4
|
| McDermott v R (1948) 76 CLR 501
|
140-1, 150, 761, App C 130-1, 146, 148
|
| McDonald’s System of Australia Pty Ltd v McWilliam’s Wines Pty Ltd (1979) ATPR 40-136, 18, 483
|
1025
|
| McFadden v Snow (1951) 69 WN (NSW) 8
|
App C 252
|
| McGovern v HM Advocate [1950] SLT 133
|
964
|
| McGregor v Stokes [1952] VicLawRp 13; [1952] VLR 347
|
App C 78, 82
|
| McGuiness v Attorney-General [1940] HCA 6; (1940) 63 CLR 73
|
948
|
| McIlkenny v Chief Constable [1980] 2 All ER 227
|
388
|
| McKay v Page & Sobolski (1971) 2 SASR 117
|
App C 100
|
| McKay v R [1935] HCA 70; (1935) 54 CLR 1
|
App C 136
|
| McKinlay v North Australian Co [1869] SALawRp 21; (1869) 3 SALR 135
|
App C 113, 251
|
| McKinley v McKinley [1960] 1 All ER 476
|
125, App C 241
|
| McLean v US 377 A 2d 74, 79 (1977)
|
403
|
| McLure v Mitchell (1974) 6 ALR 471
|
App C 30
|
| McMeckan v Aitken [1891] VicLawRp 64; (1891) 17 VLR 301
|
881
|
| McMinn v Daire (1981) 5 A Crim R 307
|
App C 52
|
| McNee v Kay [1953] VicLawRp 2; [1953] VLR 520
|
App C 300
|
| McPherson v HM Advocate [1972] SLT 71
|
964
|
| McPherson v R [1981] HCA 46; (1981) 55 ALJR 594
|
100, 193, 227
|
| McQuaker v Goddard [1940] 1 KB 687
|
977, App C 269
|
| McQueen v Great Western Railway Co (1875) 10 LR QB 569
|
550
|
| McTaggart v McTaggart [1949] P 94
|
124, App C 251
|
| McWilliams v Sir William Arrol and Co Pty Ltd [1962] UKHL 3; [1962] 1 All ER 623
|
166
|
| Mechanical and General Inventions Co v Austin [1935] AC 346
|
300-1, App C 41
|
| Medlin v County Board of Education et al (1914) 167 NC 239 241
|
334
|
| Mee v Reid (1790) Peake NPC 33
|
264
|
| Mehesz v Redman (1979) 21 SASR 569
|
344, App C 278
|
| Mehesz v Redman (No 2) (1980) 26 SASR 244
|
179, 495, 499, 704, App C 278
|
| Merrall v Samuels (1971) 2 SASR 378
|
App C 119
|
| Meyer v Hall (1972) 26 DLR (3d) 309
|
App C 6
|
| Michelson v US[1948] USSC 123; , 335 US 469 (1948)
|
395
|
| Miles v Dawson (1796) 1 Esp 405
|
App C 257
|
| Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141
|
161, 355, 359
|
| Miller v Miller [1978] HCA 44; (1978) 22 ALR 119
|
221
|
| Miller v Minister of Pensions [1947] 2 All ER 372
|
96, App C 285
|
| Millers Great Northern Hotel Pty Ltd v Fingleton (1974) 7 SASR 35
|
App C 82
|
| Minet v Morgan [1873] UKLawRpCh 21; (1873) 8 Ch App 361
|
App C 237
|
| Minter v Priest [1930] AC 558
|
App C 235, 237
|
| Miranda v Arizona[1966] USSC 143; , 384 US 436 (1966)
|
765, 961
|
| Mister Figgins Pty Ltd v Centrepoint Freeholds Pty Ltd [1981] FCA 15; (1981) 36 ALR 23
|
94, 165-6, App C 57, 170, 173
|
| Mitchell v Croydon Justices (1914) 30 TLR 526
|
247
|
| Mitchell v WS Kimpton & Sons Pty Ltd [1971] VicRp 70; [1971] VR 583
|
App C 278
|
| Mitton v Curl [1922] SAStRp 34; [1922] SASR 282
|
107, App C 212
|
| Mobil Oil Corporation v Registrar of Trade Marks [1984] VicRp 3; [1984] VR 25
|
213, 1025
|
| Mole v Mole [1951] P 21
|
124, App C 251
|
| Monroe v Twistleton [1802] EngR 5; (1802) Peake Add Cas 219, 170 ER 250
|
255
|
| Montgomery v Counsell, ex parte Counsell [1956] Qd R 120
|
489
|
| Montgomery v McPherson (No 1) (1895) 16 NSW R Eq 81
|
112, App C 237
|
| Mooney v James [1948] VicLawRp 57; [1949] VLR 22
|
300, 600, App C 30, 41
|
| Moor v Moor [1954] 2 All ER 458
|
App C 30
|
| Moore v Giofrelle [1952] ALR 1049
|
162, 775
|
| Moore v Whyte (No 2) [1922] NSWStRp 39; (1922) 22 SR NSW 570
|
255
|
| More v R [1963] SCR 522
|
735
|
| Morgan v Babcock & Wilcox Ltd (1929) 43 CLR 163
|
550, App C 251
|
| Morley v National Insurance Co [1967] VicRp 61; [1967] VR 566
|
156, 342, App C 94, 96, 111
|
| Morris v Edwards [1890] UKLawRpAC 26; (1890) 15 App Cas 309
|
App C 231
|
| Moss v Moss [1963] 2 QB 799
|
255, App C 195
|
| Mullen v United States[1959] USCADC 62; , 263 F 2d 275 (DC Cir 1958)
|
903
|
| Mummery v Irvings [1956] HCA 45; (1956) 96 CLR 99
|
App C 288
|
| Murdoch v Taylor [1965] AC 574
|
App C 187
|
| Murphy v Waterfront Commission of New York Harbour[1964] USSC 136; , 378 US 52 (1963)
|
107, App C 216
|
| Murray v Walter (1839) Cr & PK 114
|
716
|
| Musgrave v The Commonwealth [1936] HCA 80; (1937) 57 CLR 514
|
221
|
| Mutch v Country & Suburban Stock Feeds [1966] 2 NSWR 708
|
330, App C 80, 82
|
| Myers v Director of Public Prosecutions [1965] AC 1001
|
227, 337, 329, 682, App C 25, 94
|
| Nachsatz v Prout [1959] VicRp 91; [1959] VR 694
|
342
|
| Nalder v Dutch-Australian Contracting Co Pty Ltd [1960] VicRp 70; [1960] VR 458
|
330, App C 83
|
| Naniseni v R [1971] NZLR 269, 274
|
App C 130
|
| Nash v United States, 54 F 2d 1006
|
820
|
| National Employers’ Mutual General Insurance Association Ltd v Waind [1979] HCA 11; [1978] 1 NSWLR 372, (1979) 53 ALJR 355
|
112, 439, App C 234-6
|
| National Mutual Life Association of Australasia Ltd v Godrich [1909] HCA 93; (1910) 10 CLR 1
|
116-7, 453-4, App C 200-1
|
| National Trustees Executors & Agency Co of Australia Ltd v Attorney-General for Victoria [1973] VicRp 59; [1973] VR 610
|
977
|
| National Trustees v AG (Vic) [1973] VicRp 59; [1973] VR 610
|
App C 269, 271, 273
|
| Nebraska Press Association v Stuart[1976] USSC 158; , 427 US 539 (1975)
|
App C 241
|
| Neilson v Laugharne [1981] 2 WLR 537
|
App C 244
|
| Nelme v Newton [1829] EngR 150; (1819) 2 Y & J 186
|
104, App C 208
|
| Nelson v John Lysaght (Aust) Ltd (1975) 132 CLR 201
|
645
|
| Nesterczuk v Mortimore [1965] HCA 60; (1965) 115 CLR 140
|
99, App C 288
|
| Newton v Piper [1968] 1 NSWR 42
|
342
|
| Ngatayi v R [1980] HCA 18; (1980) 30 ALR 27
|
App C 139
|
| Nicholls v King [1951] NZLR 91
|
550
|
| Nickisson v R [1963] WAR 114
|
App C 98
|
| Nixon v Commissioner of Taxation (1979) 36 FLR 172
|
97, App C 286
|
| Nixon v Freeman [1860] EngR 745; (1816) 5 H & N 647
|
App C 271
|
| Nominal Defendant v Hook [1962] HCA 50; (1962) 113 CLR 641
|
App C 122
|
| Noor Mohammed v R [1949] AC 182
|
165, 810, App C 170
|
| Normanshaw v Normanshaw & Measham (1893) 69 LT 468
|
App C 202
|
| North Australian Territory Co v Goldsborough Mort and Co [1893] UKLawRpCh 39; [1893] 2 Ch 381
|
307, App C 48
|
| Norwich Pharmacal Co v Customs and Excise Commissioners [1973] UKHL 6; [1974] AC 133
|
App C 242
|
| Nuttall v Nuttall & Tuyman (1964) 108 Sol J 605
|
117, App C 197
|
| O’Brien v Commissioner of Railways [1904] 7 WA 119
|
App C 154
|
| O’Callaghan v Murphy (1804) 2 Sch & Lef 158
|
App C 6
|
| O’Connell v Adams [1973] Crim L Rev 113
|
App C 52
|
| O’Connor (1843) 4 St Tr (NS) 935
|
852
|
| O’Connor v Marjoribanks (1842) 4 Markby 435[1842] EngR 703; , 134 ER 179
|
255
|
| O’Donnell v Dakin [1966] TASStRp 12; [1966] Tas SR 87
|
343, 707, App C 94
|
| O’Donnell v Reichard [1975] VicRp 89; [1975] VR 916
|
550
|
| O’Hara v HM Advocate [1948] SC (J) 90
|
173, App C 187
|
| O’Hare v Riley & AMP Society [1974] VicRp 68; [1974] VR 577
|
117
|
| O’Leary v Lamb (1974) 7 SASR 159
|
343
|
| O’Leary v R (1946) 23 CLR 556
|
165, App C 170
|
| O’Meally v R [1952] VicLawRp 24; [1952] VLR 499
|
330
|
| O’Reilly v Commissioners of The State Bank of Victoria [1983] HCA 47; (1983) 57 ALJR 130
|
110, 227, 877, 879, App C 230, 234-6
|
| O’Rourke v Darbyshire [1920] AC 581
|
112, App C 237
|
| O’Sullivan v Stubbs [1952] SASR 61
|
550
|
| O’Sullivan v Waterman [1965] SASR 1501
|
App C 25-27
|
| O’Toole v O’Toole (1926) 42 TLR 245
|
385
|
| Olmstead v US[1928] USSC 133; , 277 US 438 (1927)
|
959
|
| Omychund v Barker (1744) t Atk 21, 26 ER 22
|
581, App C 15, 17
|
| Ormond v Gunnersen [1920] VicLawRp 65; [1920] VLR 402
|
881
|
| Owen v Waburton (1805) 1 Bos & Pnr 326
|
873
|
| P v T (1980) 23 SASR 289
|
App C 297
|
| Pacyna v Grima [1963] VicRp 60; [1963] VR 421
|
453
|
| 890
| |
| Paine v R [1974] Tas SR 117
|
210
|
| Pallante v Stadiums Pty Ltd (No 2) [1976] VicRp 32; [1976] VR 363
|
333, App C 149
|
| Park v R (1981) 122 DLR (3d) 1
|
1003
|
| Parker v R [1912] HCA 29; (1912) 14 CLR 681
|
App C 269
|
| Parks v Bullock [1982] VicRp 22; [1982] VR 258
|
136, App C 125
|
| Parry-Jones v The Law Society [1969]
|
Ch 1
|
| Partington v Partington [1925] P 34
|
385
|
| Parton v Milk Board (Vic) [1949] HCA 67; (1949) 80 CLR 229
|
481
|
| Pascoe v Little (1978) 24 ACTR 21
|
141, App C 131, 137, 148
|
| Patel v Customs Comptroller [1966] AC 356
|
330
|
| Paterson v Martin [1966] HCA 68; (1966) 116 CLR 506
|
135, App C 118
|
| 333
| |
| Peacock v R [1911] HCA 66; (1911) 13 CLR 619
|
592, App C 299
|
| Pedersen v Young [1964] HCA 28; (1964) 110 CLR 162
|
221
|
| Peeks Ltd v Adelaide Oil Exporation Co Ltd [1937] SAStRp 24; [1937] SASR 154
|
96, App C 285
|
| Peipman v Turner (1961) 78 WN (NSW) 362
|
App C 80
|
| Pennell v Carruthers Bros Pty Ltd [1964] NSWR 377
|
172, App C 180
|
| People v Collins, 66 Cal Rptr 497 (1968)
|
735
|
| People v Defore, 242 NY 13 (1926)
|
376
|
| People v Hughes, 452 NYS 2d 929
|
357
|
| People v Kelly, 130 Cal Rptr 144 (1976)
|
359
|
| 355, App C 103
| |
| People v Marx, 54 Cal App 3d 100, 126 Cal Reptr 350 (1975)
|
357
|
| People v Shirley, 641 P 2d 775 (1982)
|
357
|
| People v Van Glaasbeek, 198 NY 408 (1907)
|
396
|
| Perlak Petroleum Maatschappij v Deen [1924] 1 KB 111
|
App C 98
|
| Perry v R (1982) 57 ALJR 110
|
165, 400-1, 785, 790, 810, 813, App C 170, 194
|
| Peter Williamson Pty Ltd v Capitol Motors Ltd (1982) 41 ALR 613
|
App C 287
|
| Peterson v R (1979) 41 FLR
|
App C 11
|
| Phelps v Prew [1854] EngR 228; (1854) 3 E & B 430
|
126, App C 257
|
| Philpott v Boon [1968] TASStRp 12; [1968] Tas SR 97
|
App C 278
|
| Piche v R [1971] SCR 23
|
App C 129
|
| Pickering v Noyes (1823) 1 B & C 262
|
126, App C 257
|
| Picturesque Atlas Co v Searle [1892] VicLawRp 141; (1892) 18 VLR 633
|
App C 266
|
| Piddington v Bennett & Wood Pty Ltd [1940] HCA 2; (1940) 63 CLR 533
|
App C 182
|
| Piggott v Piggott [1938] HCA 62; (1938) 61 CLR 378
|
App C 297
|
| Pikor v Fletcher [1972] TASStRp 11; [1972] Tas SR 91
|
483
|
| Pioneer Express Pty Ltd v Hotchkiss [1958] HCA 45; (1958) 101 CLR 536
|
App C 221
|
| Pitts v Adney (1961) 78 WN (NSW) 886
|
App C 252
|
| Pitts v Adney [1961] NSWR 535
|
890
|
| Plato Films Ltd v Speidel [1961] AC 1090
|
803, App C 163
|
| Plimpton v Siller [1877] UKLawRpCh 206; (1877) 6 Ch D 412
|
735
|
| Plomien Fuel Economiser Co Ltd v National Marketing Company [1941] Ch 248
|
342
|
| Plumb v Monck & Bohm (1974) 4 ALR 405
|
App C 237
|
| Police v Coward [1976] 2 NZLR 86
|
136, App C 125
|
| Pomery Rural Hotels Ltd v Ellison (1973) 5 SASR 191
|
App C 122
|
| Pope v Ewendt (1977) 17 SASR 45
|
102, App C 271, 311
|
| Poriotis v Australian Iron and Steel Co Ltd (1963) 63 SR (NSW) 991
|
330, App C 80
|
| Porter v Kolodzeij [1962] VicRp 11; [1962] VR 75
|
App C 269, 278
|
| Porter v Sinnott (1975) 13 SASR 500
|
App C 89, 91, 109
|
| Precision Plastics v Demir [1975] HCA 27; (1975) 132 CLR 362
|
App C 26, 53
|
| Prestage & Shearing v R [1976] TASStRp 3; [1976] Tas SR 16
|
App C 26
|
| Preston-Jones v Preston Jones [1951] AC 391
|
480
|
| Price v Bevan (1974) 8 SASR 81
|
204, App C 39
|
| Price v Manning [1889] UKLawRpCh 132; [1889] 42 Ch D 372
|
App C 30
|
| Price v R, unreported no 67, Tas CCA (17 December 1981)
|
157, 739, App C 95, 98
|
| Priest v Priest (1963) 9 FLR 384
|
App C 89
|
| Prince v Samo (1838) 7 Ad & E1 627[1838] EngR 207; , 112 ER 606
|
602, 628
|
| 167, App C 176
| |
| Purdie v Maxwell [1960] NZPoliceLawRp 3; [1960] NZLR 599
|
App C 12
|
| Pye v Butterfield (1864) 13 WR 178
|
104
|
| Pyneboard Pty Ltd v Trade Practices Commission (1983) 45 ALR 609
|
104, 107, 852, App C 208, 214
|
| Queen’s Case [1820] EngR 563; (1820) 2 Brod & B 284
|
306, 603
|
| R v Abadom [1983] 1 WLR 126
|
131, 334, App C 89, 108
|
| R v Abbott [1981] WAR 130
|
App C 117
|
| R v Adams & Ross [1965] Qd R 255
|
490
|
| R v Ah Wooey (1903) 9 BC 569
|
App C 15
|
| R v Ahmed Din (1962) 46 Cr App R 269
|
161, App C 108
|
| R v Alexander (1981) 55 ALIR 335
|
481
|
| R v Alexander [1975] VicRp 74; [1975] VR 741
|
App C 25
|
| R v Alexander [1979] VicRp 63; [1979] VR 615
|
184, 1027, App C 311
|
| R v Algar [1954] 1 QB 279
|
255, App C 195
|
| R v All Saints, Worcester (1817) 7 M & S 194
|
107, App C 212
|
| R v Allen [1862] EngR 309; (1862) 1 B & S 850
|
852
|
| R v Allen [1977] Crim L Rev 163
|
App C 148
|
| R v Aloisio (1969) 90 WN (Pt 1) (NSW) 111
|
169, App C 178
|
| R v Amad [1962] VicRp 75; [1962] VR 545
|
App C 131, 136, 148
|
| R v Ames [1964-5] 2 NSWR 1489
|
App C 57, 149
|
| R v Anderson (1680) 7 How St Tr 811
|
247
|
| R v Anderson (1929) 21 Cr App R 178
|
1035
|
| R v Anderson [1972] t QB 304
|
App C 102
|
| R v Anthony [1962] VicRp 63; [1962] VR 440
|
App C 301
|
| R v Antrim (1901) 2 IR 133
|
247
|
| R v Anunga [1905] ArgusLawRp 116; (1976) 11 ALR 412
|
144, App C 148
|
| R v Ashcroft [1965] Qd R 81
|
App C 102, 183
|
| R v Askeland (1983) 8 A Crim R 338
|
App C 130, 147, 293
|
| R v Askew [1981] Crim L Rev 398
|
693, 1017
|
| R v Associated Northern Collieries (1910) 11 CLR 738
|
755, 135
|
| R v Attard [1970] 1 NSWR 750
|
139, 141, App C 22, 131
|
| R v Australian Broadcasting Tribunal & ors, ex parte Hardiman & ors [1980] HCA 13; (1980) 29 ALR 289
|
663
|
| R v Austin (1979) 21 SASR 315
|
151, App C 146, 146
|
| R v Avery [1965] NSWR 1419
|
App C 21
|
| R v Aziz [1982] 2 NSWLR 322
|
127-9, 424-5, App C 190, 193-4
|
| R v Baffigo [1957] VicRp 39; [1957] VR 303
|
App C 26
|
| R v Baker (1975) 65 Cr App R 287
|
129
|
| R v Baldry (1852) 2 Den 430, 169 ER 568
|
141, 761, App C 131
|
| R v Ball [1910] UKLawRpAC 59; [1911] AC 47
|
165, 810, App C 170
|
| R v Bankowski (1971) 18 FLR 179
|
140, 143, App C 130, 131
|
| R v Banner [1970] VicRp 31; [1970] VR 240
|
384, App C 148
|
| R v Barker (1975) 65 Cr App R 287
|
App C 194
|
| R v Barker [1941] 2 KB 381
|
App C 129, 141
|
| R v Barker [1976] TASStRp 5; [1976] Tas SR 52
|
343, App C 94
|
| R v Barnett [1983] VicRp 26; [1983] VR 319
|
App C 23
|
| R v Barton [1975] VicRp 51; [1975] VR 496
|
135, App C 11, 118-9
|
| R v Barton [1972] 2 All ER 1192, [1973] 1 WLR 115
|
885
|
| R v Bashir [1969] 3 All ER 692
|
169, App C 178
|
| R v Baskerville [1916] 2 KB 658
|
489
|
| R v Bathurst [1968] 2 QB 99
|
198, 550, 592, App C 14
|
| R v Batty [1963] VicRp 65; [1963] VR 451
|
App C 323
|
| R v Beames (1979) 1 A Crim R 239
|
174, App C 142
|
| R v Beaver (1979) 1 A Crim R 50
|
App C 295
|
| R v Beble [1979] Qd R 278
|
128, App C 193
|
| R v Bedingfield (1879) 14 Cox CC 341
|
330
|
| R v Beech (1978) 20 SASR 410
|
168, App C 177
|
| R v Beelen (1974) 9 SASR 163
|
677
|
| R v Beere [1965] Qd R 370
|
App C 141
|
| R v Bentley [1963] QWN 10
|
141, App C 131
|
| R v Bernasconi [1915] HCA 13; (1915) 19 CLR 629
|
App C 221
|
| R v Berriman (1854) 6 Cox C C 388
|
App C 141
|
| R v Billings [1961] VicRp 21; [1961] VR 127
|
173, App C 187
|
| 333
| |
| R v Bishop [1975] QB 274
|
App C 177
|
| R v Blake & Tye (1844) 6 QBD 126
|
135, App C 123
|
| R v Bodsworth (1968) 87 WN (Pt 1) (NSW) 298, 2 NSWR 132
|
100, 141 App C 131, 148, 293, 325
|
| R v Bond [1906] UKLawRpKQB 91; [1906] 2 KB 389
|
165, App C 57, 170
|
| R v Booth [1983] VicRp 4; [1983] VR 39
|
550
|
| R v Borsellino [1978] Qd R 507
|
App C 148, 327
|
| R v Boyes(1861)1 B & S 311
|
App C 210
|
| R v Boyson, unreported, NSW CCA (28 September 1979)
|
148, App C 143
|
| R v Bradbury (1973) 14 CCC (2d) 139, 23 CRNS 293
|
300, App C 41
|
| R v Bradshaw (1978) 18 SASR 83
|
191, App C 133, 142, 148, 187, 324
|
| R v Brady, unreported, No 109/1980 NSW CCA (14 August 1980 (NSW CCA)
|
136, App C 125
|
| R v Braham & Mason [1976] VicRp 56; [1976] VR 547
|
App C 237
|
| R v Bransden (1981) 27 SASR 474
|
173, App C 187
|
| 243, App C 1
| |
| R v Bridgeman (1980) 24 SASR 278
|
?
|
| R v Bridgwater [1904] UKLawRpKQB 190; [1905] 1 KB 131
|
173, App C 187
|
| R v Britzman [1983] 1 All ER 369
|
App C 187
|
| R v Brophy [1982] AC 476
|
193
|
| R v Brown (1974) 8 SASR 582
|
592
|
| R v Brown (1977) Qd R 220
|
App C 1
|
| R v Brown [1960] VicRp 62; [1960] VR 382
|
App C 187
|
| R v Bruce (1850) Legge 591
|
App C 20
|
| R v Bruce [1965] QWN 48
|
App C 148
|
| R v Bryant & Dickson (1946) 31 Cr App R 146
|
886
|
| R v Buchanan [1966] VicRp 3; [1966] VR 9
|
140, 144, App C 57, 130, 133, 143, 148, 293
|
| R v Buck (1983) 8 A Crim R 208
|
489
|
| R v Buckland [1977] 2 NSWLR 452
|
550, App C 14
|
| R v Buckskin (1974) 10 SASR 1
|
App C 133
|
| R v Bundy (1910) 5 Cr App Rep 270
|
129, App C 194
|
| R v Burchielli [1981] VicRp 61; [1981] VR 611
|
128-8, 424-5, App C 190, 192, 193
|
| R v Burdett (1820) 4 B & Aid 95, 106 ER 873
|
550
|
| R v Burgess (1956) 40 Cr App R 144
|
App C 302
|
| R v Burk (1858) 8 Cox CC 44
|
284
|
| R v Burles [1964] Tas ST 256
|
App C 20
|
| R v Butterwasser [1948] 1 KB 4
|
164, App C 162, 167-8, 187
|
| R v Byczko (1982) 30 SASR 578
|
490
|
| R v Byczko (No 1) (1977) 16 SASR 506
|
490
|
| R v Byczko (No 2) (1977) 17 SASR 460
|
489, 490
|
| R v Byme [1972] 1 NSWLR 264
|
App C 143
|
| R v C [1976] Qd R 341
|
144, App C 134, 148
|
| R v Calabria (1982) 31 SASR 423
|
691-2, App C 21
|
| R v Callaghan (1971) 64 Cr App R 11
|
App C 24
|
| R v Campbell (1979) 69 Cr App R 221
|
App C 20
|
| R v Cam (1982) 5 A Crim R 466
|
158, App C 100, 295
|
| R v Chambers (1848) 3 Cox 92
|
629
|
| R v Chandler [1956] 56 SR (NSW) 335
|
165, App C 170
|
| R v Chandler [1976] 1 WLR 585
|
368, App C 119
|
| R v Chapman [1973] QB 774
|
489
|
| R v Chapwood [1980] 1 All ER 467
|
136, App C 125
|
| R v Chard (1972) 56 Cr App R 268
|
354
|
| R v Chariton [1972] VicRp 90; [1972] VR 758
|
717, 886, App C 295
|
| R v Chatwood [1980] 1 All ER 467, Crim L Rev 46
|
136, App C 125
|
| R v Chee [1980] VicRp 32; [1980] VR 303
|
94, 165, App C 57-8, 170
|
| R v Cheng (1976) 63 Cr App R 20
|
App C 25
|
| R v Chiron [19801] NSWLR 218144, 165
|
App C 133, 170
|
| R v Chitson [1909] UKLawRpKQB 165; [1909] 2 KB 945
|
App C 187
|
| R v Christie [1914] UKLawRpAC 20; [1914] AC 545
|
135, 425, 489, App C 116, 119, 188
|
| R v Clarke & Wilton [1959] VicRp 84; [1959] VR 645
|
App C 12
|
| 169, App C 178
| |
| R v Clarke [1970] 1 NSWR 289
|
141, App C 131
|
| R v Cleal [1942] 1 All ER 203
|
App C 305
|
| R v Cleary (1963) 48 Cr App R 116
|
App C 131
|
| R v Clune (No 1) [1975] VicRp 72; [1975] VR 723
|
329, 602, 628-9, App C 88
|
| R v Clune (No 2) [1982] VicRp 1; [1982] VR 1
|
28, 424-5, 844, App C 189, 193
|
| R v Clynes (1960) 44 Cr App R 158
|
490, App C 302
|
| R v Cockcroft (1870) 11 Cox CC 410
|
169, App C 178
|
| R v Cokar [1960] 2 QB 207
|
173, App C 187
|
| R v Colless (1964) 84 WN (Pt 1) (NSW) 55
|
489
|
| R v Colley (1868) 10 Cox CC 536
|
141, App C 131
|
| R v Collings [1976] 2 NZLR 104
|
427
|
| R v Connelly [1964] AC 1254
|
852
|
| R v Cook [1959] 2 QB 340
|
821, App C 187
|
| R v Coote [1873] EngR 4; (1873) LR 4 PC 599
|
107
|
| R v Corak (1982) 30 SASR 404
|
135, 755, App C 123
|
| R v Cormack (1979) ( A Crim R 471
|
App C 21
|
| R v Coughlan (1977) 64 Cr App R 11
|
App C 21
|
| R v Coulman (1927) 20 Cr App R 106
|
164, App C 168
|
| R v Court [1837] EngR 230; (1836) 7 C & P 486
|
141, App C 131
|
| R v Cox & Railton (1884) 14 QBD 153
|
App C 237
|
| R v Cox [1972] QdR 366
|
112, App C 39
|
| R v Craig [1975] 1 NZLR 597
|
App C 237
|
| R v Crane (1912) 7 Cr App R 113
|
App C 300
|
| R v Crawford [1981] Qd R 85
|
App C 170
|
| R v Cupit [1978] TASStRp 9; [1978] Tas SR 95
|
342
|
| R v Curtis [1957] VicRp 40; [1957] VR 306
|
App C 26, 117
|
| R v Cutajar, unreported, Vic CCA (12 December 1980)
|
164, App C 168
|
| R v Damic (1982) 6 A Crim R 35
|
64
|
| R v Daren & Tange [1971] 2 NS W LR 423
|
135
|
| R v Daren [1971] 2 NSWLR 423
|
App C 117, 119
|
| 160, 165, App C 105
| |
| R v Davies [1962] 3 All ER 97
|
App C 100
|
| R v Davis, unreported, Vic SC (21 November 1977)
|
148, App C 143
|
| R v Day [1841] EngR 86; (1841) 9 C & P 722
|
330
|
| R v De Vere [1981] 3 WLR 593
|
App C 20
|
| R v Dean [1896] NSWLawRp 76; (1896) 17 LR (NSW) 224
|
App C 131
|
| R v Dean (1981) 26 SASR 437
|
App C 148
|
| R v Deathe [1962] VicRp 90; [1962] VR 650
|
App C 323
|
| R v Demicoli [1971] Qd R 358
|
App C 143
|
| R v Dent (1843) l Car & K 97[1845] EngR 201; , 174 ER 729
|
App C 98
|
| R v Deputy Industrial Injuries Commissioner [1965] 1 QB 456
|
49
|
| R v Dickman (1910) 5 Cr App Rep 135
|
129, App C 194
|
| R v Dickson [1983] VicRp 19; [1983] VR 227
|
128, App C 193, 295
|
| R v Dillon [1983] 2 Qd R 627, [1984] Crim L Rev 100
|
App C 117, 125
|
| R v Ditroia & Tucci [1981] VicRp 28; [1981] VR 247
|
App C 187
|
| R v Ditton (1927) 44 WN (NSW) 81
|
App C 20
|
| R v Dobson (1979) 29 ACTR 29
|
494
|
| R v Dodd [1960] WAR 42
|
App C 82
|
| R v Donaldson (1976) 64 Cr App R 59
|
App C 127
|
| R v Donnelly [1957] TASStRp 4; [1957] Tas SR 28
|
App C 57, 170
|
| R v Donnini [1972] HCA 71; (1972) 128 CLR 114
|
164
|
| R v Donohue (1963) 63 SR (NSW) 38
|
App C 293
|
| R v Doolan [1962] Qd R 449
|
App C 116, 143
|
| R v Doolin (1832) 1 Jebb Cr Cas 123
|
App C 6
|
| R v Dowling [1883] VicLawRp 51; (1883) 9 VLR(L) 79
|
114, App C 195
|
| R v Doyle [1967] VicRp 82; [1967] VR 698
|
App C 192
|
| R v Drinkwater [1981] 27 SASR 396
|
App C 20
|
| R v Dugan, unreported, NSWCCA (15 March 1984)
|
App C 21
|
| R v Duke (1979) 22 SASR 46
|
|
| R v Duncan (1981) 73 Cr App R 359
|
App C 127
|
| R v Dunne, unreported, C of A, England (4 October 1976)
|
423
|
| R v Dutton (1979) 21 SASR 356
|
197, 550, 552, App C 11
|
| R v E Tirado (1974) 59 CAR 80
|
707
|
| R v Earl of Thanet (1799) 17 How St Tr 822
|
247
|
| R v Elliott [1977] Crim L Rev 551
|
App C 148
|
| R v England [1978] TASStRp 5; [1978] Tas SR 79
|
342
|
| App C 15
| |
| R v Erdheim [1896] UKLawRpKQB 114; [1896] 2 QB 260
|
App C 112
|
| R v Erith (Inhabitants) [1807] EngR 311; (1807) 8 East 539
|
330
|
| R v Etherington (1982) 32 SASR 230
|
489
|
| R v Evans [1962] SASR 303
|
App C 23
|
| R v Exeter Guardians (1869) LR 4 QB 341
|
333
|
| R v Eyres (1977) 16 SASR 226
|
App C 148, 327
|
| R v Fairleigh [1910] NSWStRp 83; (1910) 10 SR (NSW) 723
|
App C 131
|
| R v Fajkovic [1970] VicRp 73; [1970] VR 566
|
App C 117
|
| R v Falconer-Atlee (1973) 58 Cr App R 348
|
129, 164, App C 167, 194
|
| R v Field 64 LJMC 158
|
App C 269
|
| R v Field, unreported, NSW CA (25 March 1982)
|
App C 63
|
| R v Fieldhouse (1977) 17 SASR 92
|
App C 148
|
| R v Finlayson [1912] ArgusLawRp 76; (1912) 14 CLR 675
|
App C 170
|
| R v Flannery [1969] VicRp 72; [1969] VR 586
|
489
|
| R v Fletcher (1983) 8 A Crim R 204
|
App C 303
|
| R v Fong [1981] Qd R 90
|
App C 102, 354
|
| R v Ford (1851) 2 Den 245
|
303
|
| R v Fox (1982) 7 A Crim R 28
|
489, App C 303
|
| R v Frances (1849) 4 Cox CC 57
|
743, App C 105
|
| R v Freeman [1980] VicRp 1; [1980] VR 1
|
App C 295
|
| R v G [1974] 1 NSWLR 31
|
App C 138
|
| R v Gaffney [1968] VicRp 54; [1968] VR 417
|
427
|
| R v Gammon (1959) 43 Cr App R 155
|
App C 302
|
| R v Garbett [1847] EngR 511; (1847) 2 Car & Kir 474
|
App C 141
|
| R v Gaudion [1979] VicRp 7; [1979] VR 57
|
174-5, App C 142
|
| R v Gaunt [1964] NSWR 864
|
427, App C 192
|
| R v Gay [1976] VicRp 59; [1976] VR 577
|
94, App C 57, 114, 143
|
| R v Gazard [1839] EngR 202; (1838) 8 C & P 595, 173 ER 633
|
247
|
| R v George (1979) 68 Cr App R 210
|
App C 24
|
| R v Gibb & McKenzie [1983] VicRp 78; [1983] 2 VR 155
|
165, 168, App C 166, 170
|
| R v Gibbons [1823] EngR 660; (1823) 1 Car & P 97
|
115, App C 197
|
| R v Gibbons [1971] VicRp 8; [1971] VR 79
|
136, App C 125
|
| R v Gibson [1929] NSWStRp 36; (1929) 30 SR (NSW) 282
|
App C 20
|
| R v Gibson, unreported SASC (12 November 1973)
|
144, App C 135
|
| R v Gilbert (1977) 66 Cr App R 237
|
App C 119
|
| R v Gilmore [1977] 2 NSWLR 935
|
159, 335, 358, 743, App C 104
|
| R v Gleeson [1975] Qd R 399
|
App C 327
|
| R v Golder [1960] 3 All ER 457
|
App C 40
|
| R v Goodall [1982] VicRp 3; [1982] VR 33
|
131, App C 85
|
| R v Goode (1970) SASR 69
|
427
|
| R v Gould [1839] EngR 860; (1840) 9 C & P 364, 173 ER 870
|
App C 141
|
| R v Gouroff (1979) 1 A Crim R 367
|
135, App C 123
|
| R v Governor of Gloucester Prison; ex parte Miller [1979] 1 WLR 537
|
App C 25
|
| R v Gramanatz [1962] QWN 41
|
App C 187
|
| R v Gray [1965] Qd R 373
|
107, 193, App C 325
|
| R v Greciun-King [1981] 2 NSWLR 469
|
255, 258, 279, App C 11
|
| App C 141
| |
| R v Griffin (1853) 6 Cox CC 219
|
App C 202
|
| R v Griffiths [1930] ArgusLawRp 18; [1930] VLR 204
|
App C 192
|
| R v Grills [1910] HCA 68; (1910) 11 CLR 400
|
App C 115-6
|
| R v Guidice [1964] WAR 128
|
136, App C 125
|
| R v Guiren [1962] NSWR 1105
|
550
|
| R v Gun; ex parte Stephenson (1977) 17 SASR 165
|
94, 403, 408, 807, App C 59
|
| R v Gunewardene [1951] 2 KB 600
|
App C 183
|
| R v Gunn [1930] NSWStRp 50; (1930) 30 SR (NSW) 336
|
135, App C 123
|
| R v Hackett [1955] SASR 137
|
App C 116, 143
|
| R v Hagan [1966] Qd R 219
|
100, App C 293
|
| R v Haidley & Alford [1984] VicRp 18; [1984] VR 229
|
161, 362, App C 108
|
| R v Hall (1958) 43 Cr App R 29
|
886
|
| R v Halpin [1975] QB 907
|
322, App C 64, 81
|
| R v Hammond (1941) 28 Cr App R 84
|
193
|
| R v Hammond [1964] NZHC 99; [1965] NZLR 257
|
App C 137
|
| R v Handcock (1841) It Cir Rep 329
|
App C 208
|
| R v Hanrahan [1967] 2 NSWR 717
|
App C 183
|
| R v Hardy (1794) 24 How St Tr 659
|
App C 43, 205
|
| R v Harman [1981] 2 W LR 310
|
948
|
| R v Harris (1970) 91 WN (NSW) 720
|
App C 117
|
| R v Harris (1971) 1 SASR 447
|
427
|
| R v Harris (No 2) (1975) 12 SASR 270
|
135, App C 123
|
| R v Harrison (No 1) (1968) 87 WN (Pt 1) (NSW) 314
|
App C 116
|
| R v Harrison [1966] NZLR 887
|
App C 302
|
| R v Harrison-Owen [1951] 2 All ER 726
|
810
|
| R v Hart (1932) 23 Cr App R 202
|
App C 52
|
| R v Hart (1977) 17 SASR 100
|
100, 144, 193, App C 133, 148, 293, 325
|
| R v Hart [1979] Qd R 8
|
App C 116-7, 143, 148, 327
|
| R v Harvey (1858) 8 Cox CC 99
|
125, App C 241
|
| R v Harz [1967] 1 AC 760
|
|
| R v Hauser (1982) 6 A Crim R 68, 76
|
App C 12, 142-3
|
| R v Hawke [1974] 16 CCC (2d) 438
|
912
|
| R v Hay [1860] EngR 187; (1860) 2 F & F 4
|
App C 202
|
| R v Hayden & Slattery [1959] VicRp 18; [1959] VR 102
|
App C 39
|
| R v Hayes [1977] 2 All ER 288
|
128, 563, App C 191
|
| R v Heidt (1976) 14 SASR 574
|
165, 810, App C 170
|
| R v Hepworth [1955] 2 All ER 918
|
96, App C 285
|
| R v Hill (1851) 2 Den 254, 169 ER 254, 20 LJMC 222, 90 RR 822
|
243, App C 1
|
| R v Hinton (1978) 4 PS Rev 1724
|
381, App C 327
|
| R v Hipson [1969] Crim L Rev 85
|
129, App C 194
|
| R v Hissey (1973) 6 SASR 280
|
684, App C 82
|
| R v Hogan, unreported, NTSC (24 November 1980)
|
144, App C 135
|
| R v Holmes (1871) LR 1 CCR 334
|
169, App C 178
|
| R v Holmes [1953] 1 WLR 686, [1953] 2 All ER 324
|
160, 743, App C 105
|
| R v Honner [1977] TASStRp 1; [1977] Tas SR 1
|
160, App C 102, 105
|
| R v Hoosen, unreported, NTSC (10 April 1978)
|
144, App C 135
|
| R v Hope [1909] ArgusLawRp 9; [1909] VLR 149
|
100, App C 80
|
| R v Horry (1949) 68 NZLR 791
|
App C 170
|
| R v Horsburgh (1966) 55 DLR (2d) 289
|
563
|
| R v Horvath (1979) 93 DLR (3d) 1
|
144, App C 571, 133
|
| R v Houston & Stanhope (1982) 8 A Crim R 392
|
94, App C 57
|
| R v Howard (1932) SR (NSW) 541
|
App C 22
|
| R v Howarth [1973] Qd R 431
|
App C 131
|
| R v Howe [1958] SASR 95
|
168, App C 177
|
| R v Howick [1970] Crim L Rev 403
|
App C 189
|
| R v Hulbert (1979) 69 Cr App R 243
|
App C 125
|
| R v Hulse (1971) 1 SASR 327
|
App C 116
|
| R v Hunter [1955] VicLawRp 56; [1956] V LR 31
|
204, 297, App C 40
|
| R v Hurst [1958] VicRp 63; [1958] VR 396
|
App C 131
|
| 333
| |
| R v Ireland [1970] HCA 21; (1970) 126 CLR 321
|
135, 964, App C 78, App C 116
|
| R v Isequilla [1975] 1 All ER 77
|
144, App C 133
|
| R v Jack [1894] NSWLawRp 33; (1894) 15 LR (NSW) 196
|
303
|
| R v Jackson [1982] VicRp 30; [1982] VR 326
|
168
|
| R v Jacquier (1979) 20 SASR 543
|
204, App C 300
|
| R v Jansen [1970] SASR 531
|
592
|
| R v Jeffries [1946] NSWStRp 54; (1946) 47 SR (NSW) 284
|
144, 150, App C 133, 148
|
| R v Jenkins [1822] EngR 83; (1822) Russ & Ry 492, 168 ER 914
|
App C 141
|
| R v Jessop [1974] TASStRp 7; [1974] Tas SR 64
|
App C 187
|
| R v Johannsen (1977) 65 Cr App R 101
|
489
|
| R v Johnston [1982] 2 NSWLR 897
|
App C 3
|
| R v Jones & Sullivan [1978] 2 All ER 718
|
707
|
| App C 141
| |
| R v Jones (1923) 17 Cr App R 117
|
173, App C 187
|
| R v Jones [1970] 1 NSWLR 190
|
378
|
| R v Jones[1978] 2 Crim LJ 169
|
App C 131
|
| R v Jones, unreported, NSWCCA (18 May 1979)
|
App C 26
|
| R v Jones, unreported, Vic SC (11 September 1978)
|
144, App C 134
|
| R v Jordan [1977] AC 699
|
App C 102
|
| R v Joyce [1957] 3 All ER 623
|
141, App C 131
|
| R v Jungala, unreported, NTSC (21 March 1980)
|
144, App C 135
|
| R v Karan (1980) 26 SASR 408
|
App C 187
|
| R v Kaye [1983] 2 Qd R 202
|
App C 9
|
| R v Keeley (1980) ACL DT 490
|
424
|
| R v Keeley [1980] VicRp 54; [1980] VR 571
|
App C 142
|
| R v Kelly [1946] NSWStRp 16; (1946) 46 SR (NSW) 344
|
592, App C 21, 24
|
| R v Kelly [1958] VicRp 67; [1958] VR 412
|
160
|
| R v Kennaway [1917] 1 KB 25
|
App C 187
|
| R v Kerr (No 1) [1950] VicLawRp 23; [1951] VLR 211
|
App C 117
|
| R v Kidman [1915] HCA 58; (1915) 20 CLR 425
|
221
|
| R v Kilbourne [1973] AC 729
|
94, App C 59
|
| R v Kilby (No 1) (1969) 91 WN (NSW) 845
|
App C 22
|
| R v Killick (1979) 21 SASR 321
|
App C 148, 327
|
| R v Kilner [1976] Crim L Rev 740
|
App C 133, 143
|
| R v King [1896] UKLawRpKQB 175; [1897] 1 QB 214
|
App C 95
|
| R v King [1967] 2 QB 338, [1967] 1 All ER 379
|
489
|
| R v Kiparli-Ikarum [1967-8] PNGLR 119
|
App C 80
|
| R v Kirkham (1837) 8 CP 115
|
354
|
| R v Knight [1966] 1 WLR 230
|
489
|
| R v Krausz (1973) 57 Cr App R 466
|
App C 178
|
| R v Kuru-Waru (1900) 10 QLJ 139
|
App C 80
|
| R v Laird [1893] NSWLawRp 85; (1893) 14 LR (NSW) 354
|
App C 131
|
| R v Lamb [1975] Qd R 296
|
App C 308
|
| R v Lane [1983] VicRp 105; (1983) 8 A Crim R 182
|
App C 21
|
| R v Langford [1974] Qd R 67
|
App C 187
|
| R v Langton [1877] UKLawRpKQB 103; (1876) 2 QBD 296
|
App C 25
|
| R v Lapuse [1964] VicRp 7; [1964] VR 43
|
App C 117
|
| R v Lavery (1978) 19 SASR 515
|
App C 116
|
| R v Lavery (No 2) (1979) 20 SASR 430
|
151, App C 146
|
| R v Lawless [1974] VicRp 49; [1974] VR 398
|
602, 628, App C 30, 82, 88
|
| R v Leatham (1861) 8 Cox C C 498
|
App C 141
|
| R v Lee [1950] HCA 25; (1950) 82 CLR 133
|
140-1, 150, 761, App C 125, 130-1, 136-7, 148
|
| R v Lewes Justices, Ex parte Secretary of State for Home Department [1973] AC 388
|
123, 870-1, App C 205-6, 242
|
| R v Lewis (1973) 57 Cr App R 860
|
App C 119
|
| R v Lewis [1913] ArgusLawRp 49; [1913] VLR 227
|
App C 57
|
| R v Lewis, unreported, C of A, England (14 March 1972)
|
421
|
| R v Lindsay (1977) 18 SASR 103
|
489
|
| R v Lindsay [1963] Qd R 386
|
139, App C 116, 129
|
| R v Linehan [1921] ArgusLawRp 104; [1921] VLR 582
|
App C 306
|
| R v Ling [1981] TASRp 22; (1982) 6 A Crim R 429
|
210, App C 300
|
| R v Linnane (1979) 32 SASR 72
|
142, App C 131
|
| R v Longford (1970) 17 FLR 37
|
App C 170
|
| R v Lovett [1973] 1 All ER 744
|
App C 187
|
| R v Lowery (No 1) [1972] VicRp 62; [1972] VR 554
|
App C 148
|
| R v Lowery (No 3) [1972] VicRp 109; [1972] VR 939
|
App C 166
|
| R v Lucas [1973] VicRp 68; [1973] VR 693
|
58, 626, 717
|
| R v Lucas (1981) 3 WLR 120
|
489
|
| R v Lunch & Watson [1978] TASStRp 16; [1978] Tas SR 190
|
692
|
| R v Lynch [1919] SALawRp 3; (1919) SALR 325
|
App C 14
|
| R v Lynch [1971] 2 NSWLR 136
|
210, App C 300
|
| R v M [1976] Qd R 344
|
144, App C 131, 134
|
| R v Maarroui (1970) 92 WN (NSW) 757
|
128, App C 193
|
| R v MacKenny (1981) 72 Cr App R 78
|
161, 354, 363, App C 108
|
| R v MacPherson [1980] 1 NSWLR 612
|
191, App C 323-4
|
| R v Macecek [1960] Qd R 247
|
App C 20, 27
|
| R v Madobi (1963) 6 FLR 1
|
App C 80
|
| R v Mahoney-Smith [1967] 1 NSWR 154
|
App C 323
|
| R v Mandica (1980) 24 SASR 394, 4 A Crim R 34
|
App C 21
|
| R v Mann (1972) 56 Cr App R 750
|
135, App C 118
|
| R v Manser (1934) 25 Cr App R 18
|
App C 308
|
| R v Mansfield [1977] 1 WLR 1102
|
129, App C 194
|
| R v Maqsud Ali [1966] 1 QB 688
|
179, App C 63, 275
|
| R v Marshall [1977] Crim L Rev 106
|
App C 125
|
| R v Marsham [1912] UKLawRpKQB 56; [1912] 2 KB 362
|
App C 18
|
| R v Martin (1872) LR 11 CR 378
|
App C 310
|
| R v Martin (1983) 32 SASR 419
|
App C 14
|
| R v Martin [1955] VicLawRp 82; [1956] VLR 87
|
App C 192
|
| R v Mason (1911) 7 Cr App R 67
|
160, App C 105
|
| R v Mathews (1953) 17 CR 241, (1953) 9 WWR (NS) 649
|
App C 105
|
| R v Mathews (1953) 17 CR 241, 9 WWR (NSW) 650
|
160, 743
|
| R v Matthews & Ford [1972] VicRp 1; [1972] VR 3
|
174, 179, 490, App C 62-3
|
| R v McBride (1983) 34 SASR 433
|
App C 167-170
|
| R v McCaul & Palmer [1983] VicRp 102; (1983) 9 A Crim R 70
|
App C 168
|
| R v McCready [1967] VicRp 36; [1967] VR 325
|
169, App C 178
|
| R v McDougall [1983] Qd R 89
|
489
|
| R v McEndoo [1981] 5 A Crim R 52
|
160, App C 102, 105
|
| R v McFadden (1957) 57 SR (NSW) 262
|
App C 11
|
| R v McGibbony [1956] VicLawRp 34; [1956] VLR 424
|
App C 11-2
|
| R v McGregor [1968] 1 QB 371
|
App C 127
|
| R v McHardie & Danielson [1983] 2 NSWLR 733
|
App C 103
|
| R v McIntosh [1967] TASStRp 11; [1967] Tas SR 103
|
165, App C 82, 70
|
| R v McIvor [1883] NSWLawRp 12; (1883) 4 LR (NSW) 43
|
App C 273
|
| R v McKay [1965] Qd R 240
|
App C 138
|
| R v McKay [1967] NZLR 139
|
App C 183
|
| R v McKelvey [1914] St R Qd 42
|
135, 489, App C 118
|
| R v McKenna (1956) 73 WN (NSW) 345
|
App C 114
|
| R v McKenna [1951] St R Qd 299
|
App C 21
|
| R v McKittrick [1982] VicRp 66; [1982] VR 637
|
App C 114
|
| R v McMahon [1891] VicLawRp 88; (1891) 17 V LR 335
|
App C 22
|
| R v McMillan (1967) 87 WN (Pt 1) (NSW) 387
|
586
|
| R v McNaghten (1843) 10 CI & F 200
|
242
|
| R v McNamara [1916] VicLawRp 76; [1917] VLR 407
|
330
|
| R v McNamara [1963] VicRp 56; [1963] VR 402
|
App C 131
|
| R v Mead, unreported, Tas SC (24 August 1977)
|
148, App C 143
|
| R v Meier [1982] 30 SASR 126
|
App C 2
|
| R v Menzies [1982] NZCA 19; [1982] 1 NZLR 40
|
179, App C 278
|
| R v Midwinter (1971) 55 Cr App R 525
|
App C 302
|
| R v Migliorini [1981] TASRp 8; (1982) 38 ALR 356
|
175
|
| R v Mildrone (1786) 1 Leach 412
|
264
|
| R v Mills [1962] 1 WLR 1152
|
616
|
| R v Milnes (1983) 33 SASR 211
|
141, App C 131
|
| R v Minihane (1921) 16 Cr App R 38
|
107, App C 212
|
| R v Mitchell (1892) 17 Cox CC 503
|
199
|
| R v Mitchell [1971] VicRp 5; [1971] VR 46
|
707
|
| R v Mitchell, unreported, Qld CCA (26 July 1978)
|
142, App C 131, 148
|
| R v Monks, unreported, Tas SC
|
193
|
| R v Moore (1892) 8 TLR 287
|
App C 18
|
| R v Morgan [1978] 1 WLR 735
|
App C 305
|
| R v Morrison [1889] NSWLawRp 43; (1889) 10 LR (NSW) 197
|
App C 20-1
|
| R v Morrison (1911) 6 Cr App R 159
|
App C 187
|
| R v Murray [1980] 2 NSWLR 526
|
165, App C 166, 170
|
| R v Mutch [1973] 1 All ER 178
|
198, App C 14
|
| R v Nagy (1965) 51 W WR 307
|
App C 95
|
| R v Naidanovici [1961] NZPoliceLawRp 24; [1962] NZLR 334
|
286, App C 28
|
| R v Nation [1954] SASR 189
|
490, 629, App C 307
|
| R v Neal [1947] ALR 616
|
203, App C 36
|
| R v Nessel (1980) 5 A Crim R 374
|
135, App C 123
|
| R v Nickisson [1963] WAR 114
|
App C 98
|
| R v Nilon (1981) 5 A Crim R 385
|
164, App C 167
|
| R v Nilson [1968] VicRp 26; [1968] VR 238
|
179, App C 278
|
| R v Northam (1967) 52 Cr App R 97
|
141, App C 131
|
| R v Norton [1910] UKLawRpKQB 103; [1910] 2 KB 496
|
App C 116
|
| R v O’Brien (1977) 76 DLR (3d) 513
|
330
|
| R v O’Callaghan [1976] VicRp 43; [1976] VR 441
|
158, App C 101-2
|
| R v O’Linn (1960) 1 SA 545
|
330
|
| R v O’Mealley [1952] VicLawRp 24; [1952] VLR 499
|
App C 80
|
| R v O’Reilly [1967] 2 QB 722
|
490
|
| R v O’Sullivan (1975) 13 SASR 68
|
App C 170
|
| R v Oakley [1979] RTR 417
|
App C 98
|
| R v Oates [1979] Tas SR 203
|
140-2, 144, App C 130, 131, 133
|
| R v Olasiuk (1973) 6 SASR 255
|
64
|
| R v Oregan, ex parte Oregan [1957] HCA 18; (1957) 97 CLR 323
|
221
|
| R v Osborne [19731] QB 678
|
App C 84, 188
|
| R v Ostojic (1978) 18 SASR 188
|
144, App C 133, 148
|
| R v Overington [1978] Crim L Rev 692
|
App C 125
|
| R v Pachonick [1973] 2 NSWLR 86
|
App C 27
|
| R v Padman [1918] ArgusLawRp 124; (1979) 25 ALR 36
|
|
| R v Palmer (1980) 1 A Crim R 458, [1981] 1 NSWLR 209
|
160, 359, 743, App C 105
|
| R v Parker (1983) 8 A Crim R 324
|
App C 308
|
| R v Peach [1974] Crim L Rev 245
|
App C 299
|
| R v Peagui-Ambimp (1973) 47 AU 93
|
App C 80
|
| App C 80
| |
| R v Penberthy [1978] ACL DT 823
|
592
|
| R v Perceval [1981] VicRp 62; [1981] VR 624
|
592, App C 22
|
| R v Perera [1982] VicRp 91; [1982] VR 901
|
App C 114
|
| R v Perry (1981) 28 SASR 417
|
App C 170
|
| R v Perry (No 4) (1982) 28 SASR 119
|
156, 348
|
| R v Perry [1970] 2 NSWR 501
|
210, 490, App C 300
|
| R v Perryman (1907) 147 CCC Sess Pap 1099
|
131, App C 91
|
| R v Pestano [1981] Crim L Rev 397
|
App C 40
|
| R v Pettigrew (1980) 71 Cr App R 39
|
335, 496
|
| R v Pfitzner (1976) 15 SASR 171
|
95, 136, App C 125, 170, 187
|
| R v Phillips [1967] Qd R 237
|
198, App C 14, 23
|
| R v Pierce [1917] NSWStRp 8; (1917) 17 SR (NSW) 135
|
App C 195
|
| R v Pipe (1967) 51 Cr App R 17
|
250, 528
|
| R v Pitt [1982] 3 WLR 359
|
538
|
| R v Plotzki [1972] Qd R 379
|
141, App C 131
|
| R v Poku [1978] Crim L Rev 488
|
142, App C 131
|
| R v Porter [1976] Crim L Rev 58
|
App C 125
|
| R v Post & Georgee [1982] Qd R 495
|
App C 325
|
| R v Prasad (1979) 23 SASR 101
|
129, App C 194
|
| R v Prater [1960] 2 QB 464
|
App C 301, 307
|
| R v Pratt (1965) 83 WN (NSW) 358
|
144, App C 134
|
| R v Pratt, unreported, ACT SC (October 1976)
|
App C 137, 148
|
| R v Preston [1909] UKLawRpKQB 29; [1909] 1 KB 568
|
173, App C 187
|
| R v Preston [1961] VicRp 115; [1961] VR 761
|
427, App C 194
|
| R v Quinn & Bloom [1962] 2 QB 245
|
App C 62
|
| R v Ragen (1964) 81 WN (Pt 1) (NSW) 572, [1964-5] 2 NSWR 515
|
App C 117, 148
|
| R v Ransom (1979) 22 SASR 283
|
App C 187
|
| R v Ratten [1971] VicRp 10; [1971] VR 87
|
App C 82
|
| R v Raymond [1974] 2 LR (NS W) 677
|
App C 21
|
| R v Ready & Manning [1942] VicLawRp 2; [1942] VLR 85
|
210, App C 300
|
| R v Redd [1923] 1 KB 104
|
App C 168
|
| R v Redpath (1962) 46 Cr App R 319
|
489
|
| R v Reiner (1974) 8 SASR 102
|
161, 334, App C 108
|
| R v Reynolds (1927) 20 Cr App R 125
|
App C 300
|
| R v Reynolds [1950] 1 KB 606
|
188
|
| R v Rhodes [1899] 1 QB 77
|
198, App C 14
|
| R v Richards (1967) 51 Cr App R 266
|
141, App C 131
|
| R v Richards [1965] Qd R 354
|
489
|
| R v Richardson [1969] 1 QB 299
|
App C 183
|
| R v Ridgeway[1983] 2 NSWLR 19
|
490, App C 302-3
|
| R v Ridpath (1713) 10 Mod 152
|
852
|
| R v Rigney (1975) 12 SASR 30
|
App C 300-1
|
| App C 48
| |
| R v Riley [1887] UKLawRpKQB 26; (1887) 18 QBD 481
|
169, App C 178
|
| R v Riley (1940) SR (NSW) 111
|
App C 21
|
| R v Riley (1979) 70 Cr App Rep 1
|
App C 300
|
| R v Rishworth (Inhabitants) [1842] EngR 166; (1842) 2 QB 476
|
330
|
| R v Riven (1950) 34 Cr App R 87
|
160, 743, App C 105
|
| R v Roads [1967] 2 All ER 84
|
247
|
| R v Roberts [1970] Crim L Rev 464
|
144, App C 134
|
| R v Robinson [1969] 1 NSWR 229
|
App C 323
|
| R v Robson [1972] 1 WLR 651
|
179-80, App C 63, 278
|
| R v Rogers [1950] SAStRp 15; [1950] SASR 102
|
App C 80
|
| R v Rosser (1836) 7 C & P 648
|
App C 263
|
| R v Rouse [1903] UKLawRpKQB 188; [1904] 1 KB 184
|
173, App C 187
|
| R v Router (1977) 14 ALR 367
|
135, App C 118-9
|
| R v Rowbotham (No 5) (1977) 2 CR (3d) 293
|
300, App C 41
|
| 164, 810, App C 166-8
| |
| R v Rudd [1923] SAStRp 11; [1923] SASR 229
|
135, App C 118
|
| R v Ryan (1966) 50 Cr App R 144
|
App C 119
|
| R v Sadaraka [1981] 2 NSWLR 459
|
135, App C 119
|
| R v Salahattin [1983] VicRp 49; [1983] VR 521
|
135, App C 118
|
| R v Salvo [1980] VicRp 39; [1980] VR 401
|
73
|
| R v Samuel (1956) 40 Cr App R 8
|
164, App C 168
|
| R v Sanders (1961) 46 Cr App R 60
|
App C 302
|
| 142, 761, 960, App C 129, 131, 141
| |
| R v Saunders [1965] Qd R 409
|
App C 88
|
| R v Savage[1970] Tas SR 137
|
100, App C 80, 293
|
| R v Savidant (1946) 19 MPR 448
|
App C 271
|
| R v Schaferrius [1977] Qd R 213
|
App C 108, 183, 131, 161, 334
|
| R v Schlaefer, unreported SA CCA (19 March 1984)
|
App C 308
|
| R v Schneidas (No 2) (1980) 4 A Crim R 101
|
164, 208, App C 168
|
| R v Schwarz [1923] SAStRp 39; [1923] SASR 347
|
330
|
| R v Scripps [1978] TASStRp 20; [1978] Tas SR 209
|
148, App C 116, 142-3
|
| R v Sealby [1965] 1 All ER 701
|
330, 712, App C 81
|
| App C 105, 743
| |
| R v See Lun [1932] NSWStRp 14; (1932) 32 SR (NSW) 363
|
App C 22
|
| R v Sharp (1983) 33 SASR 366
|
965
|
| R v Shea (1978) 18 SASR 591
|
App C 25
|
| R v Shrimpton (1851) 2 Den 319, 169 ER 521
|
App C 168
|
| R v Silverlock [1894] UKLawRpKQB 152; [1894] 2 QB 766
|
157, App C 97
|
| R v Simic [1979] VicRp 49; [1979] VR 497
|
592
|
| R v Simmonds (1967) 51 Cr App R 316
|
App C 26
|
| R v Simpson [1956] VicLawRp 35; [1956] VLR 490
|
592, App C 21, 23
|
| R v Sims [1946] KB 531
|
165, App C 170
|
| R v Singh [1962] AC 188
|
550
|
| R v Slaney [1832] EngR 452; (1832) 5 C & P 213
|
App C 210
|
| R v Slobodian (1982) 30 SASR 161
|
App C 182
|
| App C 210
| |
| R v Sloggett (1972) 1 QB 430
|
107
|
| R v Smart [1983] VicRp 22; [1983] VR 265
|
343, App C 94
|
| R v Smith (1906) 6 SR (NS W ) 85
|
App C 18
|
| R v Smith (1915) 11 Cr App R 229
|
160, 743, App C 105
|
| R v Smith (1983) 32 SASR 219
|
129, App C 189, 194
|
| R v Smith [1959] 2 QB 35
|
141, App C 131
|
| R v Smith [1964] VicRp 14; [1964] VR 95
|
App C 136
|
| R v Smith [1979] 2 NS WLR 304
|
425
|
| R v Smith [1979] 3 All ER 605
|
App C 102
|
| R v Smith [1981] 1 NSWLR 193
|
App C 170
|
| R v Sneesby [1951] St R Qd 26
|
App C 300
|
| R v Snider [1954] 4 DLR 483
|
App C 242
|
| R v Sodo (1975) RTR 357
|
735
|
| R v Solomon & Thumbler (1958) 25 W WR 307
|
App C 6
|
| R v Somers [1963] 3 All ER 808
|
App C 100
|
| R v Sparks [1964] AC 964
|
692
|
| R v Sparrow [1973] 1 WLR 488, 2 All ER 129
|
198, 260, 550, App C 14, 127
|
| R v Spooner [1957] VicRp 73; [1957] VR 540
|
160
|
| 629
| |
| R v St Lawrence’s Hospital Statutory Visitors; ex parte Pritchard [1953] 1 WLR 1158
|
115, App C 197
|
| R v Stafford (1976) 13 SASR 392
|
App C 148, 327
|
| R v Stalder [1981] 2 NSWLR 9
|
164, App C 20, 168
|
| R v Starecki [1960] VicRp 22; [1960] VR 141
|
App C 133
|
| R v Stan [1969] QWN 23
|
135, App C 116
|
| R v Staunton, The Times (September 26, 1877)
|
App C 107
|
| R v Stephenson (1978) 18 SASR 381
|
App C 142
|
| R v Stephenson [1976] VicRp 34; [1976] VR 376
|
94, 165, 647, App C 57, 170
|
| R v Stevenson [1971] 1 All ER 678
|
App C 63
|
| R v Stewart (1972) 56 Cr App R 272
|
App C 143
|
| R v Stewart [1970] 1 All ER 689
|
App C 131
|
| R v Stojadinovic [1973] 2 NSWLR 807
|
App C 11
|
| R v Storey [1978] HCA 39; (1978) 140 CLR 364
|
852
|
| R v Straffen [1952] 2 All ER 657, 2 QB 911
|
165, 400, 810, App C 148, 170
|
| R v Strausz (1977) 17 SASR 197
|
135, App C 115, 116, 118
|
| R v Stuart [1959] SASR 144, 150
|
App C 22
|
| R v Suleyman Gelal, unreported, CCA (12 October 1982)
|
334
|
| R v Sullivan (1869) 8 SCR 131
|
App C 310
|
| R v Sumner [1935] VicLawRp 13; [1935] VLR 197
|
App C 306
|
| R v Swartz (1978) 37 CCC (2d) 409
|
App C 64
|
| R v Sykes (No 1) [1969] VicRp 78; [1969] VR 631
|
144, App C 133, 143
|
| R v Syron, unreported, NSW CCA (23 November 1973)
|
App C 20
|
| R v Szach (1980) 23 SASR 504
|
151, 330, App C 146
|
| R v Teal [1809] EngR 179; (1809) 11 East 307
|
852
|
| R v Teitler [1959] VicRp 54; [1959] VR 321
|
210
|
| R v Templeton [1922] QSR 165
|
198, App C 14
|
| R v Thomas (1956) 74 WN (NSW) 77
|
App C 187
|
| R v Thomas [1959] 43 Cr App R 210
|
490
|
| R v Thomas [1970] VicRp 87; [1970] VR 674
|
95, 135, 646, App C 116, 118
|
| R v Thompson [1783] EngR 186; (1783) 1 Leach 291
|
141
|
| R v Thompson (1976) 64 Cr App R 96
|
686, 36
|
| R v Thompson [1893] UKLawRpKQB 74; [1893] 2 QB 12
|
App C 131
|
| R v Thompson [1912] UKLawRpKQB 100; [1912] 3 KB 19
|
330
|
| R v Thompson [1951] SASR 135
|
169, App C 178
|
| R v Thompson [1962] 1 All ER 65
|
125, 875, App C 241
|
| R v Thompson [1962] SR (N SW) 135
|
App C 138
|
| R v Thompson [1966] 1 WLR 405
|
App C 165
|
| R v Thompson [1966] QWN 47
|
164, App C 167
|
| R v Thompson [1982] 2 W LR 603
|
App C 86
|
| R v Thomson (1977) 64 Cr App R 96
|
203
|
| R v Thornton (1980) 3 A Crim R 80
|
258, App C 11
|
| R v Thynne [1977] VicRp 10; [1977] VR 98
|
203, 602, App C 30, 36, 37, 87
|
| R v Tiley (1983) 33 SASR 345
|
App C 148
|
| R v Tissington (1843) 1 Cox CC 48
|
App C 178
|
| R v Tolson [1864] EngR 74; (1864) 4 F & F 103, 176 ER 488
|
App C 278
|
| R v Toner [1966] QWN 44
|
107, 193, App C 325
|
| R v Tonkin & Montgomery [1975] Qd R 1
|
172, 359, App C 105
|
| R v Toohey [1965] AC 595
|
172
|
| R v Toomey [1969] TASStRp 15; [1969] Tas SR 99
|
193, 761, App C 325
|
| R v Towler (1968) 5 CRNS 55
|
App C 131
|
| R v Townsend [1965] Crim L Rev 367
|
330
|
| R v Trigg [1963] 1 All ER 460
|
489
|
| R v Trimboli (1979) 21 SASR 577
|
164, App C 167
|
| R v Tsingopolous [1964] VicRp 86; [1964] VR 676
|
977, App C 117
|
| R v Tunbull [1976] 3 All ER 549
|
128
|
| R v Turner (1974) 60 Cr App R 80
|
161, App C 108
|
| R v Turner (1975) 61 Cr App R 67
|
330, 528
|
| R v Turner [1909] UKLawRpKQB 190; [1910] 1 KB 346
|
App C 125
|
| R v Turner [1975] 1 QB 834
|
172, 354, 842, 845, App C 102, 166, 183
|
| R v Turnsek [1967] VicRp 69; [1967] VR 610
|
490
|
| R v Twist [1954] VicLawRp 6; [1954] VLR 121
|
135, App C 118
|
| R v Tyford [1893] NSWLawRp 23; (1893) 14 LR (NSW) 51
|
App C 20
|
| R v Uljee [1982] 1 NZLR 561
|
877, App C 237
|
| R v Van Beelen (1973) 6 SASR 534
|
App C 25
|
| R v Van Beelen (1974) 9 SASR 163
|
329
|
| R v Van Vreden (1973) 57 Cr App R 818
|
491
|
| R v Vandine [1968] 1 NSWR 417
|
App C 117
|
| R v Vella [1938] St R Qd 289
|
427
|
| R v Vernon [1962] Crim L Rev 35
|
App C 300
|
| R v Voisin [1918] 1 KB 531
|
550
|
| R v W, unreported, Qld SC (5 February 1975)
|
144, App C 134
|
| R v W ainwright 19 Cr App Rep 52
|
App C 189
|
| R v Walczuk [1965] QWN 50
|
490
|
| R v War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 50 CLR 228
|
18, 663
|
| R v Warren (1982) 5 A Crim R 321, 2 NSWLR 360
|
100, App C 293
|
| 761, App C 141
| |
| R v Watson [1817] EngR 133; (1817) 2 Stark 116
|
App C 31
|
| R v Watts (1983) 77 Cr App R 126
|
App C 187
|
| R v Weatherall (1981) 27 SASR 238
|
499, 704
|
| R v Weatherstone (1968) 12 FLR 14
|
291
|
| R v Welsh (1869) 11 Cox CC 336
|
354
|
| R v West [1973] Qd R 338
|
148, App C 117, 143
|
| R v Westell [1976] 2 All ER 812
|
App C 27
|
| R v Westfall (1912) 7 Cr App R 176
|
173, App C 187
|
| R v Whitby (1975) 74 WN (NSW) 441
|
160
|
| R v White (1976) 13 SASR 276
|
App C 327
|
| R v Whitehead (1898) 23 VLR 239
|
522
|
| R v Whitehead [1929] 1 KB 99
|
489
|
| R v Whitford [1980] Tas SR 98
|
153, App C 148
|
| R v Whithead (1866) LR 1 CCR 33
|
App C 5
|
| R v W ickham (1971) 55 Cr App R 199
|
592
|
| R v Wilbain & Ryan (1863) 9 Cox CC 448
|
App C 97
|
| R v Wilde (1670) 1 Lev 296
|
App C 273
|
| R v Willey [1965] QWN 45
|
193
|
| R v Williams (1968) 52 Cr App R 439
|
App C 131
|
| R v Williams (1976) 14 SASR 1
|
140, 144, App C 130, 135, 148, 324
|
| R v Williams [1955] VicLawRp 89; [1956] VLR 96
|
App C 11
|
| R v Williams [1983] VicRp 116; [1983] 2 VR 579
|
129, 425-6, App C 189, 193-4
|
| R v Wilson [1967] 2 QB 406
|
141, App C 131
|
| R v Wilson [1981] 1 NZLR 316
|
143, App C 131
|
| R v Winfield [1939] 4 All ER 164
|
App C 168
|
| App C 88
| |
| R v Withers [1811] EngR 194; 1811 2 Camp 578
|
885
|
| R v Wood [1982] Crim L Rev 667
|
495
|
| R v Wray (1970) 11 DLR (3d) 673
|
App C 141
|
| R v Wright [1969] SASR 256
|
App C 325, 326
|
| R v Wright (No 2) [1968] VicRp 17; [1968] VR 174
|
App C 192
|
| 743, App C 105
| |
| R v Wright [1980] VicRp 56; [1980] VR 593
|
135, 158, 160, App C 102, 105, 118
|
| R v Wyatt [1972] VicRp 105; [1972] VR 902
|
135, App C 22, 118, 148
|
| R v Xinaris (1955) 43 Cr App R 30
|
886
|
| R v Young [1923] SAStRp 1; [1923] SASR 35
|
330
|
| R v Young [1964] 1 WLR 717
|
129, App C 194
|
| R v Young [1969] Qd R 417
|
197, App C 11
|
| R v Yuille [1948] VR 41
|
App C 170
|
| R v Wright [1969] SASR 256
|
App C 325, 326
|
| R v Wright [1980] VicRp 56; [1980] VR 593
|
135, 158, 160, App C 102, 105, 118
|
| R v Zampaglione (1981) 6 A Crim R 287
|
135
|
| R v Zaveckas (1969) 54 Cr App R 202
|
App C 131
|
| R v Zorad [1979] 2 NSWLR 764
|
408
|
| R v de Villiers (1944) AD 493
|
App C 79
|
| Rabata v Dohner, 45 Wis 2d 111, 172 NW 2d 409 (1969)
|
App C 107
|
| Rabin v Mendoza & Co [1954] 1 All ER 247, 1 WLR 271
|
890, App C 251
|
| Rakay v MacFarlane (1960) 78 WN (NSW) 488
|
775, App C 151
|
| Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642
|
131, 161, 334, App C 83, 108
|
| Ramsbotham v Senior [1869] UKLawRpEq 171; (1869) LR 8 Eq 575
|
App C 237
|
| Randall v Atkinson (1899) 30 OR 242
|
App C 6
|
| Ras Behari Lal v King-Emperor (1933) 50 TLR 1
|
875
|
| Batten v R [1971] UKPC 23; [1972] AC 378
|
130, 684, App C 82
|
| Re 396 Bay St, Port Melbourne [1969] VicRp 35; [1969] VR 293
|
162
|
| Re A-G’s Reference (No 3) (1979) 69 Cr App R 411
|
App C 25
|
| Re Adams [1922] P 240
|
333, App C 80
|
| Re Attorney-General’s Reference No 1 of 1977 [1979] WAR 45
|
165
|
| Re Bell, ex parse Lees [1980] HCA 26; (1980) 30 ALR 489
|
112, 443, 877, 885
|
| Re Birmingham Banking Co, ex parte Brinsley (1866) 36 LJ Ch 150
|
716
|
| Re Daintrey [1899] UKLawRpKQB 197; [1900] 1 QB 546
|
890
|
| Re Devala Provident Gold Mining Co Ltd [1883] UKLawRpCh 19; (1883) 22 Ch D 593
|
135
|
| Re Duncan [1968] P 306
|
109
|
| Re Dyce Sombre [1849] EngR 498; (1849) 1 Mac & G 116, ER 1207
|
161, App C 107
|
| Re Fagan Deceased (1980) 23 SASR 454
|
96
|
| Re Gardner (1968) 13 FLR 345
|
329-30
|
| Re Gardner’s Will Trusts [1936] 3 All ER 938
|
333
|
| Re LG Hayes Williams [1926] NSWStRp 42; (1926) 26 SR (NSW) 383
|
64
|
| Re Lambe [1981] FCA 171; (1981) 1 SSR 5
|
533
|
| Re Marra Developments Limited and the Companies Act [1979] 2 NSWLR 193
|
343
|
| Re Mundell (1883) 48 LT 776
|
300
|
| Re Norman King & Co Pty Ltd [1960] SR (NSW) 981
|
342
|
| Re Potters Appeal (1980) 43 FLR 329
|
775
|
| Re Raphael [1973] 1 WLR 998, [1973] 3 All ER 19
|
776
|
| Re Batten [1974] VicRp 26; [1974] VR 201
|
58, 64
|
| Re Strachen [1895] UKLawRpCh 12; [1895] 1 Ch 439
|
877
|
| Re Thomas Holloway [1887] UKLawRpPro 20; (1887) 12 PD 167
|
877
|
| Redfern v Redfern [1890] UKLawRpPro 60; [1891] P 139
|
104, App C 208
|
| Redman v Klun (1979) 20 SASR 343
|
App C 278
|
| Reed v James (1815) 1 Stark NP 132
|
App C 257
|
| Reed v State, 283 Md 374, 391 A 2d 364 (1978)
|
355, App C 103
|
| Reed v State, 391 A 2d 364 (1978)
|
359
|
| Rees v Kratzman (1965-66) 114 CLR 63
|
15
|
| Reeves Bros Inc v Lewis Reed [1971] RPC 355
|
App C 237
|
| Refrigerated Express Lines A/asia Pty Ltd v Australian Meatand Livestock Corp (1979) ATPR 40-137, 42 FLR 204
|
App C 228
|
| Registrar to the Supreme Court Equity Division v McPherson and Others [1980] 1 NSWLR 688
|
716
|
| Reid v Kerr [1974] 9 SASR 367
|
131, 207-8, App C 50, 52, 53, 54, 91
|
| App C 286-7
| |
| Relf v Webster (1978) 24 ACTR 3
|
136, App C 125
|
| Revesz v Orchard [1969] SASR 336
|
App C 127
|
| Reynolds v Llanelly Tinplate Co [1948] 1 All ER 140
|
App C 263
|
| Rich v Pierpont (1862) 3 F & F 35
|
160, 743, App C 105
|
| Richards v Hough (1882) S 1 LJ QB 361
|
App C 18
|
| Richards v US[1951] USCADC 217; , 192 F 2d 602
|
792
|
| 43, 64, 295, 717
| |
| Riddick v Thames Board Mills Ltd [1977] 1 QB 881
|
App C 237
|
| Riddle v R [1911] HCA 33; (1911) 12 CLR 622
|
251
|
| Riker Laboratories Australia Pty Ltd v Westwood Pharmaceuticals (1983) 1 ICP 343
|
App C 239
|
| Ringstaad v Butler [1978] 1 NSWLR 754
|
App C 125
|
| Rio Tinto Zinc Corporation v Westinghouse Electric Corporation [1978] AC 547, 1 All ER 434
|
107, App C 214
|
| Roberts v Oppenhetm [1884] UKLawRpCh 112; [1884] 26 Ch D 724
|
App C 237
|
| Roberts v Simpson (1817) 2 Stark NP 203
|
126, App C 257
|
| Robinson v Randfontein Estates Gold Mining Co Ltd (1924) AD 151
|
App C 79
|
| Robinson v State of South Australia (No 2) [1931] AC 704
|
122, App C 242, 248
|
| Robinson v Stern [1939] 2 KB 260
|
342
|
| Robinson v The Trustees Executors & Agency Co Ltd [1931] VicLawRp 56; [1931] VLR 369
|
333
|
| Rochfort v TPC [1982] HCA 66; (1983) 57 ALJR 31
|
App C 214
|
| Rodgers v Rodgers (1964) 114 CLR 608
|
124, 647, App C 250
|
| App C 37
| |
| Rothman v R (1981) 20 CR (3d) 97
|
761, App C 131
|
| Rowley v London and North Western Railway Co [1852] EngR 1037; (1873) LR 8 Exch 221
|
131, App C 91
|
| Rumping v Director of Public Prosecutions [1964] AC 814
|
114, App C 195
|
| Russell v Jackson [1851] EngR 955; (1851) 9 Hare 387
|
155, App C 197
|
| Russell v Russell [1924] UKHL 1; [1924] AC 687
|
850
|
| Rutherford v Richardson [1923] AC 1
|
57
|
| Sahari and Sahari [1976] FamCA 59; (1976) FLC 90-086
|
105, App C 229
|
| Said Ajami v Comptroller of Customs [1954] 1 WLR 1405
|
App C 98
|
| Saint Leger v Bailey [1962] TASStRp 14; [1962] Tas SR 131
|
App C 269
|
| Salford Corporation v Lever [1889] UKLawRpKQB 193; (1890) 24 QBD 695
|
881
|
| Salsbury v Woodland [1969] EWCA Civ 1; [1970] 1 QB 324
|
185, App C 313
|
| Sampson v Sampson [1977] FamCA 42; (1977) FLC 90-253
|
App C 109
|
| Samuel v Newbold [1906] UKLawRpAC 28; [1906] A C 461
|
974
|
| Samuels v Flavel [1970] SASR 256
|
160, App C 105
|
| Sanders v Hill [1964] SASR 237
|
550
|
| 120-1, 221, 452, 865, 868, 885, App C 242-4
| |
| Saul v Marion [1980] 2 NSWLR 314
|
App C 269, App C 272
|
| Schetky & Acadia Ltd v Cochrane et al (1917) 24 BCR 496
|
890
|
| Schneider v Leigh [1955] 2 All ER 173
|
716
|
| Scott Paper v Drayton Paper Works (1927) 44 RPC 151
|
890
|
| Scott v Fernhill Stud Poultry Farm Ltd [1963] VicRp 2; [1963] VR 12
|
App C 122-3
|
| Scott v Numurkah Corporation [1954] HCA 14; (1954) 91 CLR 300
|
184, App C 311
|
| Seabrook v British Transport Commission [1959] 1 WLR 509
|
109, App C 233
|
| Seal v Turner (1913) TLR 227
|
881
|
| Selvey v DPP [1970] AC 304, [1968] 2 W & R 1494
|
164, 173, 382, App C 168, 187
|
| Senate v Senate [1965] P 172
|
291
|
| Senior v Holdsworth [1975] 2 All ER 1009
|
App C 63
|
| Seymour v Attorney General for the Commonwealth, unreported, Federal Court (NSW) No 221 (1983)
|
964
|
| Sharpe v Smail (1975) 49 ALJR 130
|
881
|
| Shaw v David Syme & Co [1912] ArgusLawRp 93; [1912] VLR 336
|
112, App C 237
|
| Shaw v R [1952] HCA 18; (1952) 85 CLR 365
|
43, 64
|
| Shenton v Tyler [1939] Ch 620
|
114, 255, App C 195
|
| Shoukatallie v R [1961] 3 WLR 1021
|
125, App C 241
|
| 160, App C 105
| |
| Simpson v Fraser (1894) 5 QLJ 89
|
102, App C 271
|
| Sinclair v R [1946] HCA 55; (1946) 73 CLR 316
|
144, 193, 761, App C 130-3, 148, 325
|
| Sing v Muir (1969) 16 FLR 211
|
App C 91
|
| Singleton v John Fairfax and Sons Ltd [1982] 2 NSWLR 38
|
755, App C 113
|
| Sladden v Sargeant (1858) 1 FF 322[1858] EngR 150; , 175 ER 746
|
App C 49
|
| Slatter v Kyalde Ply Ltd (1979) 22 SASR 196
|
App C 273
|
| App C 112
| |
| Sloane v Pollard [1947] HCA 51; (1947) 75 CLR 445
|
App C 271
|
| Smith Kline and French Laboratories Ltd v Inter-Continental Pharmaceuticals (Australia) Pty Ltd [1969] HCA 34; (1969) 43 ALJR 308
|
881
|
| Smith v Blakey (1867) LR 2 QB 326
|
App C 80
|
| Smith v Grieve [1974] WAR 193
|
App C 139
|
| Smith v Joyce [1954] HCA 15; (1954) 89 CLR 529
|
App C 125
|
| Smith v Kearney (1879) 2 SCR (NS) NSW Eq 65
|
App C 158
|
| Smith v Read [1736] EngR 59; (1737) 1 Atk 526
|
104, App C 208
|
| Smith v Samuels (1976) 12 SASR 573
|
550
|
| Smith v Selwyn [1914] UKLawRpKQB 94; [1914] 3 KB 98
|
385
|
| Sneddon v Stevenson [1967] Crim L Rev 476
|
App C 300
|
| Sodeman v R [1936] HCA 75; (1936) 55 CLR 192
|
96, App C 285, 296
|
| Soloman v Forrest (1856) 1 VLT 64
|
330
|
| Sorby v The Commonwealth [1983] HCA 10; (1983) 57 ALJR 248
|
756
|
| Sorgenfrie v R (1981) 3 A Crim R 404, 51 FLR 147
|
221, App C 21
|
| South Australian Co v City of Port Adelaide [1914] SALawRp 2; [1914] SALR 16
|
135, App C 123
|
| Southwark Water Co v Quick [1878] UKLawRpKQB 22; (1878) 3 QBD 315
|
881, App C 233
|
| Spain v Union Steamship Co of New Zealand Ltd [1923] HCA 65; (1923) 33 CLR 555
|
App C 156
|
| Sparks v R [1964] AC 964
|
330, App C 82
|
| Spokes v Grosvenor Hotel [1897] UKLawRpKQB 99; [1897] 2 QB 124
|
104, App C 208
|
| Spratt v Hermes [1965] HCA 66; (1965) 114 CLR 226
|
App C 221
|
| Stapleton v Davis [1907] VLR 114
|
App C 153
|
| Stapleton v R [1952] HCA 56; (1952) 86 CLR 358
|
App C 148
|
| App C 80
| |
| State Electricity Commission of Victoria v Gay [1950] VicLawRp 58; [1951] VLR 104
|
645
|
| State of New York v Centolella, 305 NY Supp 2d 279 (1969)
|
979
|
| State v Buranis (1958) 138 Att (2d) 739
|
810
|
| State v Catanese, 368 So 2d 975 (1979)
|
355-7, App C 103
|
| State v Garcia, 357 S W 2d 931 (1962)
|
352
|
| State v Hall, 297 NW 2d 80, 84-5 (1980)
|
356
|
| State v Kersting, 50 Or 461, 623 P 2d 1095\
|
App C 103
|
| State v Knops, 49 Was 2d 674, 183 W 2d 93, (1971)
|
52
|
| State v Wagner, 222 NW 407 (1928)
|
979
|
| State v Williams, 388 A 2d 500 (Me 1978)
|
App C 103
|
| 161, 334, App C 108
| |
| Steinberg v R (1931) 4 DLR 8
|
App C 183
|
| Stenhouse v Coleman [1944] HCA 36; (1944) 69 CLR 457
|
App C 271
|
| Stewart v R [1921] HCA 17; (1921) 29 CLR 234
|
App C 166
|
| Stewart v Whelan Motors Pty Ltd [1974] AR 62
|
App C 122
|
| Stirland v DPP [1944] AC 315
|
164, 173, App C 167-8, 187
|
| Stobart v Dryden [1836] EngR 228; (1836) 1 M & W 615
|
330
|
| Stock v Orcsik [1977] VicRp 46; [1977] VR 382
|
330, App C 125
|
| Stokes v R [1960] HCA 95; (1960) 105 CLR 279
|
App C 180
|
| Straker v Graham [1839] EngR 304; (1839) 4 M & W 721
|
873
|
| Straker v R (1977) 15 ALR 103, 51 ALJR 690
|
App C 114, 116, 143
|
| Strophair v Ebbage, ex parte Ebbage [1945] QSR 126
|
96, App C 285
|
| Stupple v Royal Insurance Co [1970] 3 WLR 217
|
388, 778
|
| Sturla v Freccia (1880) 5 App Cas 623
|
227, 329
|
| Sun Insurance Office v Roy [1927] 1 DLR 17
|
160, 743, App C 105
|
| Surujpaul v R [1958] 1 WLR 1050
|
App C 125
|
| Sussex Peerage Case (1844) 11 CI & Fin 85[1844] EngR 822; , 8 ER 1034
|
App C 98
|
| Sut v Nominal Defendant [1968] 2 NSWR 78
|
112, App C 237
|
| Sutherland v Cooley [1898] ArgusLawRp 117; (1898) 24 VLR 410
|
App C 273
|
| Sutton v R [1984] HCA 5; (1983) 51 ALR 435, (1984) 58 ALJR 64
|
165, 813, App C 170
|
| Sutton v R [1978] WAR 94
|
128-9, App C 193-4
|
| Swansea Corporation v Quirk [1879] UKLawRpCP 70; (1879) 5 CPD 106
|
881
|
| Sweitzer v R (1982) 137 DLR (3d) 703
|
165
|
| Sych and Sych v Hunter (1974) 8 SASR 118
|
334
|
| TNT Management Pty Ltd v Brooks (1979) 53 ALJR 267
|
98-9, App C 288-9
|
| TPC v Allied Mills Industries Pty Ltd (1980) 48 FLR 102
|
221
|
| TPC v Ansett Transport Industries Pty Ltd [1978] FCA 21; (1978) 32 FLR 305
|
App C 287
|
| TPC v George Weston Foods Ltd (1980) ATPR 40-150
|
221
|
| TPC v Nicholas Enterprises Pty Limited (No 2)(1979) [1979] FCA 51; 40 FLR 83
|
App C 287
|
| TPC v Nicholas Enterprises Pty Ltd (1978) ATPR 40-097
|
97, 221
|
| TPC v Queensland Aggregates (1981) ATPR 40-233
|
716
|
| Tameshwar v R [1957] AC 476
|
185
|
| Tannian v Synnott (1903) 37 It LT 275
|
App C 202
|
| Tarasoff v Regents of University of California, 551 P 2d 334, 131 Cal Rptr 14 (1976)
|
923
|
| Taylor v Spencer [1965] NSWR 961
|
App C 180
|
| Taylor v Taylor [1956] Tas SR 84
|
App C 201
|
| Taylor v Taylor [1970] 1 WLR 1148
|
388
|
| Taylor v United States, 222 F 2d 398 (DC Cir 1955)
|
921
|
| Taylor v Witham [1876] UKLawRpCh 220; (1876) 3 Ch D 605
|
333, App C 80
|
| Teague v Farrell [1880] VicLawRp 240; (1880) 6 VLR (L) 480
|
App C 273
|
| Teper v R [1952] AC 480
|
662, App C 82
|
| Terminiello v Chicago[1949] USSC 77; , 337 US 1
|
949
|
| Tesco Supermarkets Ltd v Nattrass [1971] UKHL 1; [1972] AC 153
|
App C 123
|
| Thatcher v Charles [1961] HCA 5; (1961) 104 CLR 57
|
135, App C 116
|
| The Church of The New Faith v Commissioner of Payroll Tax [1983] HCA 40; (1983) 49 ALR 65
|
907
|
| The Commissioner for Government Transport v Adamcik [1961] HCA 43; (1961) 106 CLR 292
|
App C 100
|
| The Commissioner of Police v Tanos [1958] HCA 6; (1957-58) 98 CLR 383
|
57
|
| The Fitzwalter Peerage (1843) 10 C 1 & F 193
|
500
|
| The Gardner Peerage (1824) Le Marchant’s Rep 85-90
|
161
|
| The Great Atlantic Insurance Co v Home Insurance Co [1981] 1 WLR 529
|
112
|
| The King and the Attorney-General v Associated Northern Collieries [1911] HCA 73; (1911) 14 CLR 387
|
646
|
| The Managers of the Metropolitan Asylum District v Hill (1882) 47 LTR 29
|
166, App C 173
|
| The Palermo [1883] UKLawRpPro 58; (1883) 9 PD 6
|
112
|
| The Queens Case (1820) 2 Brod & Bing 286
|
205
|
| The Registrar to the Supreme Court, Equity Division v MacPherson [1980] 1 NSWLR 688
|
439
|
| The Solway [1885] UKLawRpPro 34; (1885) 10 PD 137
|
135
|
| The State v Wiola (1978) PNGLR 99
|
100, 1003
|
| Theodoropoulas v Theodoropoulas [1964] P 311, [1963] 2 All ER 772
|
890, App C 251
|
| Thomas v Austen (1823) 1 LJ (OS) KB 99
|
124, App C 250
|
| Thomas v R [1960] HCA 2; (1960) 102 CLR 584
|
App C 296
|
| Thomas v R [1972] NZLR 34
|
App C 183
|
| Thomas v Van den Yessel [1976] 14 SASR 205
|
App C 51
|
| Thomason v The Council of the Municipality of Campbelltown [1939] NSWStRp 10; (1939) 39 SR (NSW) 347
|
App C 237
|
| Thompson v Kovacs [1959] VicRp 40; [1959] VR 229
|
App C 278
|
| Thompson v R [1918] AC 221
|
165
|
| Thorn v Worthing Skating Rink Co [1877] UKLawRpCh 206; (1876) 6 Ch D 412
|
735
|
| Thorogood v Warren (1979) 20 SASR 156
|
550
|
| Throgmorton’s Case (1554) 1 State Tr 869
|
125
|
| Thwaites v Bank of Australasia [1895] VicLawRp 75; (1895) 21 VLR 222
|
881
|
| Tickle v Tickle [1968] 2 All ER 154
|
App C 82
|
| Titheradge v R [1917] HCA 76; (1917) 24 CLR 107
|
43, 64
|
| Tito v Waddell [1975] 1 WLR 1303
|
185, App C 313
|
| Tobias v Allen (No 2) [1957] VLR 221
|
342
|
| Todorovic v Waller [1981] HCA 72; (1982) 56 ALJR 59
|
481, 974
|
| Tomlin v Standard Telephones and Cables Ltd [1969] 1 WLR 1378
|
447, App C 251
|
| Toohey’s Ltd v Housing Commission of NSW (1952) 20 LGR 236
|
App C 233
|
| Topham v McGregor [1844] EngR 325; (1844) 1 C & K 320, 174
|
App C 28
|
| Tracey Peerage Case 10 C 1 & F 154, 8 ER 700
|
735
|
| Trade Practices Commission v Allied Mills Industries Pty Ltd [1931] ArgusLawRp 29; (1981) 37 ALR 225
|
135, App C 123
|
| Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 2) [1979] FCA 51; (1979) 40 FLR 83, 26 ALR 609
|
221, 286
|
| Trade Practices Commission v Queensland Aggregates (1981) 3 ATPR 40-223
|
540, App C 244
|
| Trade Practices Commission v Sterling [1979] FCA 33; (1978) 36 FLR 244
|
109, 111, App C 233, 236
|
| Transport Publishing Co Pty Ltd v The Literature Board of Review [1956] HCA 73; (1956) 99 CLR 111
|
157, App C 98, 102-3
|
| Transport and General Insurance Co Ltd v Edmondson [1961] HCA 86; (1961) 106 CLR 23
|
App C 88
|
| Tregea v Godart (1939) AD 16
|
33
|
| Triplex Safety Glass Co v Lancegaye Safety Glass Ltd [1939] 2 KB 395
|
104, 107, 862, App C 208, 210, 213-4
|
| Tripodi v R (1961) 104 CLR l
|
646, 755, App C 114, 116
|
| Tumahole Bereng v R [1949] AC 253
|
489
|
| US v Ballet, 519 Fed 2d 463 (1975)
|
App C 104
|
| Udy v Stewart (1886) 10 OR 591
|
242
|
| Uebergang v Australian Wheat Board [1980] HCA 40; [1980] 54 ALJR 581
|
App C 271
|
| Underwood v Cox (1912) 4 DLR 66
|
890
|
| Union Bank of Australia Limited v Broom [1904] QSR 215
|
App C 271
|
| United States v Baller[1975] USCA4 375; , 519 F 2d 463 (1975)
|
355, 357-8
|
| United States v Caldwell[1970] USCA9 1068; , 434 F 2d 1081 (9th Cir 1970)
|
949
|
| United States v Pugliese, 153 F 2d 497 (1945)
|
314
|
| United States v Sample, 378 F Supp 44 (1974)
|
356, 744
|
| United States v Stifel[1970] USCA6 397; , 433 F 2d 431 (1970)
|
356-7
|
| United States of America v McRae [1867] UKLawRpCh 113; (1868) LR 3 Ch App 79
|
107
|
| United States v Addison[1974] USCADC 304; , 498 F 2d 741 (DC Cir 1974)
|
355, 359, App C 103
|
| United States v De Sisto[1964] USCA2 463; , 329 F 2d 929 (1964)
|
334
|
| United States v Fosher[1979] USCA1 12; , 590 F 2d 381 (1979)
|
354
|
| United States v Grunewald[1956] USCA2 319; , 233 F 2d 556
|
852
|
| United States v Leon, 52 US Law Week 5155 (1984)
|
961
|
| United States v White[1944] USSC 109; , 322 US 694 (1944)
|
App C 214
|
| United States v Williams, 583 F 2d [194 (1978) 355-7, 744
|
|
| Vaise v Delaval (1785) 1 TR 11, 99 ER 994
|
247
|
| App C 98
| |
| Varawa v Howard Smith & Co Ltd [1910] HCA 11; (1910) 10 CLR 382
|
112, App C 237
|
| Varawa v Howard Smith Co Ltd [1911] HCA 46; (1911) 13 CLR 35
|
App C 224
|
| Vectrovec v R (1982) 136 DLR (3d) 89
|
490, 1015
|
| App C 172
| |
| 131, 330, 605, App C 37, 57, 82
| |
| App C 113
| |
| Votskos v Votskos [1967] VicRp 62; (1967) 10 FLR 219
|
App C 89
|
| WA Pines Ltd v Hamilton (No 2) [1981] WAR 225
|
550
|
| WA Trustee, Executor & Agency Co Ltd v O’Connor (1955) 57 WALK 25
|
330
|
| Wagner v Midland Junction Abattoir Board [1963] WAR 84
|
645
|
| Wajnberg v Raynor [1971] VicRp 82; [1971] VR 665
|
28
|
| Walder v US [1954] USSC 11; 347 US 62 (1954)
|
961
|
| Waldridge v Kennison (1794) 1 Esp 143, 170 ER 306
|
App C 251
|
| Waldron v Bird [1974] VicRp 61; [1974] VR 497
|
App C 273
|
| Walker v Marklew (1976) 14 SASR 463
|
App C 148
|
| Walker v Stephenson (1801) 2 Esp 284, 170 ER 617
|
167, App C 176
|
| Walker v Walker [1937] HCA 44; (1937) 57 CLR 630
|
597, 602-3
|
| Walker v Wilsher [1889] UKLawRpKQB 124; (1889) 23 QBD 335
|
App C 252-3
|
| Walpole v Colonial Bank of Australasia (1884) 10 VLR 315
|
App C 156
|
| Walsh v Wilcox [1976] WAR 62
|
App C 63
|
| Walt Disney Productions v H John Edwards Publishing Co (1954) 55 SR (NSW) 162
|
977
|
| Walton v Deaton (1930) 31 SR 393
|
App C 49
|
| Ward v HS Pitt & Co [1913] UKLawRpKQB 30; [1913] 2 KB 130
|
333, App C 80
|
| Ward v Shell-Mex & BP Ltd [1952] 1 KB 280
|
125, App C 241
|
| Warnecke v Equitable Life Assurance Society of the United States [1906] ArgusLawRp 82; [1906] VLR 482
|
116-7, 453-4, App C 200-1
|
| Warner v The Women’s Hospital [1954] VicLawRp 14; [1954] VLR 410
|
135, 342, App C 94, 237
|
| Warren v Pilkington [1960] TASStRp 2; [1960] Tas SR 6
|
102, 480, App C 271-2
|
| Warrick v Queen’s College, Oxford (No 2) [1867] UKLawRpEq 85; (1867) LR 4 Eq 254
|
App C 251
|
| Watson v Cammell Laird & Co (Shipbuilders & Engineers) Ltd [1959] 2 All ER 757
|
112, App C 237
|
| Watson v State 64 Wis 2d 264, 219 NW 2d 398 (1974)
|
App C 103
|
| Watters v Harjamaki [1982] Qd R 147
|
|
| Wauchope v Mordecai [1970] 1 WLR 317
|
388
|
| Waugh v British Railways Board [1979] UKHL 2; [1979] 2 All ER 1169, 3 W & R 150[1979] UKHL 2; , [1980] AC 521
|
109, 439, 877, 881, App C 14, 233
|
| Waugh v R [1950] AC 203
|
198, 550
|
| Wawanesa Mutual Insurance Co v Hanes [1961] OR 495, 520
|
297
|
| Waxman & Sons Ltd v Texaco Canada Ltd (1968) 67 DLR (2d) 295
|
App C 251
|
| Waxman and Sons Ltd v Texaco Canada Ltd (1968) 69 DLR (2d) 543
|
449
|
| Weal v Bottom (1966) 40 ALJR 436
|
157, 350, 742
|
| Webster v Salloway, Miles & Co [1931] 1 DLR 831
|
862, App C 213
|
| Wendo v R [1963] HCA 19; (1963) 109 CLR 559
|
100, 139, 1002, App C 129
|
| Wentworth v Lloyd [1864] EngR 492; (1984) 10 HLC 589
|
862
|
| West Australian Trustee Executor and Agency Co v O’Connor [1955] WALawRp 5; (1955) 57 WALR 25
|
App C 80
|
| 99, 550, App C 288
| |
| West v Sprinkhuizen [1961] Qd R 313
|
102, App C 271
|
| Western Australia v The Commonwealth [1975] HCA 46; (1975) 134 CLR 201
|
969
|
| Wetherall v Harrison [1976] 1 QB 773
|
974, App C 263
|
| Wheeler v Le Marchant [1881] UKLawRpCh 106; (1881) 17 Ch D 675
|
109, 115, 877, App C 197, 233, 237
|
| Wheeler v Longman [1952] VicLawRp 57; [1953] VLR 14
|
App C 57
|
| Whiffen v Hartwright (1848) 11 Beav 111
|
890
|
| Whitcombe v Whiting (1781) 2 Doug 652, 99 ER 413
|
App C 124
|
| White v Venus [1968] SASR 83
|
342
|
| Whitehom v R [1983] HCA 42; (1983) 57 ALJR 809
|
43, 54, 64
|
| Whitmore v Harding [1974] SASR 312
|
102, App C 271
|
| Wiedemann v Walpole [1891] UKLawRpKQB 138; [1891] 2 QB 534
|
489
|
| Wilband v R (1967) 2 CCC 6
|
363
|
| Wilcox Mofflin Ltd v NSW [1952] HCA 17; (1952) 85 CLR 488
|
App C 271
|
| Willey v Synan [1937] HCA 85; (1937) 57 CLR 200
|
App C 82, 124
|
| Williamson v Williamson [1921] NSWStRp 10; (1921) 21 SR (NSW) 216
|
App C 195
|
| Wilson v Kuhl [1979] VicRp 34; [1979] VR 315
|
129, App C 194
|
| Wilson v Moss [1909] HCA 7; (1909) 8 CLR 146
|
974
|
| App C 57
| |
| 115, 197, 201, 237
| |
| Wilson v United States[1911] USSC 98; , 221 US 361 (1911)
|
App C 214
|
| Winsor v R (1866) LR 1 QB 289
|
250
|
| Wirth v Tuckey [1949] QWN 42
|
App C 57
|
| Wise Brothers Pty Ltd v Commissioner for Railways (NSW) [1947] HCA 33; (1941) 75 CLR 59
|
157, App C 98
|
| Wojcic v Incorporated Nominal Defendant [1969] VicRp 40; [1969] VR 323
|
602, 628-9, App C 88
|
| Wong Kam-Ming v R [1980] AC 247
|
193, 1043
|
| Wong Sun v US, 371 US 471 (1963)
|
961
|
| Wood v City of Melbourne [1979] FCA 41; (1979) 26 ALR 449
|
221
|
| Wood v Desmond (1958) 78 WN (NSW) 65
|
App C 49
|
| Wood v MacKinson (1840) 2 Moo & Rob 273
|
298
|
| Woods v Smith [1976] WAR 13
|
App C 220
|
| Woolmington v DPP [1935] AC 462
|
15
|
| Woon v R [1964] HCA 23; (1964) 109 CLR 529
|
135, App C 116, 118-9
|
| Worley v Bentley [1976] 2 All ER 449
|
App C 27
|
| Worthington v Scribner (1872) 109 Mass 487
|
870
|
| Wright v Beckett (1834) 1 Moo & Rob 414
|
295
|
| Wright v Tatham [1837] EngR 853; (1838) 7 A & E 313, 112 ER 488, 7 LJ Ex 340, 2 N & P 305, 7 CL & F 67
|
49, 53, 161, App C 1-7, 200
|
| 109, App C 233
| |
| Wright v Wright (1971) 115 Sol Jo 173
|
388, 778
|
| X v Y (No 1) (1954) VLR 708
|
116-7, App C 200
|
| Yorke v Yorkshire Insurance Company [1918] 1 KB 662
|
160, 743, APP C 105
|
| Young v Owen (1972) 19 FLR 70
|
App C 278
|
| Young v Tibbits [1912] HCA 23; (1912) 14 CLR 114
|
135, App C 118
|
| Zanatta v McCleary [1976] 1 NSWLR 230
|
125, 147, App C 241
|
| Zappia v Webb [1974] WAR 15
|
494, App C 269, 278
|
| Ziegler v Dawson (1981) 37 ACTR 29
|
494
|
| Ziems v Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279
|
295 |
Commonwealth
| Aboriginal Land Rights (NT) Act 1967
|
|
| 54A
|
App C 226
|
|
| |
| 18
|
App C 273
|
| 25
|
518
|
| 29
|
App C 273
|
|
| |
| 22
|
App C 74
|
| 69
|
107, App C 226
|
| 259
|
656
|
|
| |
| 35
|
App C 73
|
| 549
|
App C 73
|
| 295
|
App C 226
|
| Constitution of Australia
|
|
| 109
|
867
|
| 118
|
973
|
| 122
|
867
|
|
| |
| 4
|
App C 306
|
| 10
|
851
|
| 24
|
512, App C 306
|
| Evidence Act 1905
|
|
| 3-4
|
App C 273
|
| 4A
|
App C 266, 273
|
| 5
|
App C 266
|
| 6
|
656
|
| 7
|
App C 273
|
| 7A
|
324, 708, App C 61
|
| 7B
|
App C 94, 283
|
| 7C
|
657, 708
|
| 7D
|
389, 111, App C 94
|
| 7E
|
657, 708
|
| 7F
|
App C 283
|
| 7H
|
182, 660
|
| 7J
|
713
|
| 7K
|
657, 708
|
| 7L
|
182, 708
|
| 7M
|
708, App C 94
|
| 7N
|
708
|
| 7P
|
708
|
| 7Q
|
324, App C 94
|
| 7R-7S
|
708
|
| 8-9
|
656
|
| 10A
|
App C 273
|
| 11
|
656, App C 75
|
|
| |
| 18
|
App C 255
|
| 43
|
896, App C 287
|
| 44
|
979
|
| 62
|
450, 512, App C 91, 109, 255
|
| 63
|
App C 91, 109
|
| 100
|
App C 196
|
| 101
|
App C 42
|
| 102
|
App C 9, 71
|
| Family Law Regulations
|
|
| 47
|
App C 273
|
| 63
|
512
|
| 93
|
App C 94, 282
|
| 106-8
|
221
|
| 117
|
334, App C 91
|
| 118
|
41
|
| 167
|
App C 273
|
|
| |
| 47
|
41, 221
|
| Federal Court Rules
|
|
| O 15
|
113, App C 238
|
| O 17
|
716, App C 310
|
| O 32
|
41
|
| O 33
|
512, 707, 1025
|
| O 34
|
41, App C 97
|
| High Court Rules
|
|
| O 38
|
App C 42
|
| O 39
|
512
|
| O 49
|
App C 310
|
|
| |
| 77
|
41, 221
|
| 79
|
2, 221, 867
|
| 80
|
2, 91, 867
|
|
| |
| 46
|
896
|
| 92
|
391, App C 152
|
| 94
|
512, App C 306
|
| 862
| |
| Norfolk Island Act 1980
|
513
|
| 513, 867
| |
| Patents Act 1952
|
|
| 101
|
512
|
| 134
|
App C 239
|
| 851
| |
|
| |
| 6A
|
App C 239
|
| Seat of Government Act 1909
|
|
| 6
|
267, App C 17
|
| State & Territorial Laws and Records Recognition Act 1901
|
|
| 3
|
512, App C 273
|
| 4A
|
App C 266
|
| 5
|
App C 266, 273
|
| 6-6A
|
App C 266
|
| 7
|
App C 266, 273
|
| 11
|
App C 273
|
| 12-13
|
656
|
| 14-14A
|
App C 266
|
| 15
|
App C 266
|
| 16
|
App C 72, 73
|
| 17
|
App C 75
|
| 18
|
App C 221-3
|
|
| |
| 74
|
512
|
| 83
|
390, 783, App C 152
|
| 155
|
107, App C 227
|
| 159
|
App C 226
|
|
| |
| 62
|
454
|
| Australian Capital Territory
|
|
| Court of Petty Sessions Ordinance 1930
|
|
| 55
|
267, App C 17
|
| 58
|
App C 9
|
| Court of Petty Sessions (Civil Jurisdiction) Ordinance 1982
|
|
| 160
|
716
|
| 166
|
App C 238
|
| 195
|
267, App C 17
|
| 198
|
App C 240
|
| 200
|
1025
|
| Evidence Ordinance 1971
|
|
| 8-10
|
App C 266
|
| 12
|
App C 69, 71-2
|
| 13
|
App C 71
|
| 14
|
App C 617
|
| 16
|
App C 278
|
| 17-19
|
182
|
| 21-26
|
App C 94
|
| 27
|
App C 94, 310
|
| 28-30
|
App C 94
|
| 31
|
694, App C 94
|
| 32
|
App C 80
|
| 35
|
688
|
| 38
|
182, App C 94, 282
|
| 41-42
|
App C 267, 273
|
| 43
|
App C 267
|
| 45
|
361
|
| 47
|
App C 267, 273
|
| 49
|
App C 76
|
| 50
|
App C 70, 72
|
| 51
|
App C 70, 72, 76
|
| 54
|
App C 195, 266
|
| 56
|
164, 172, App C 95, 167-8, 183
|
| 57
|
App C 76, 212, 218-9, 221, 225
|
| 59
|
App C 47
|
| 60
|
203, 605, 621-2
|
| 62
|
App C 45
|
| 64
|
210, App C 304
|
| 65
|
131, App C 8
|
| 66
|
App C 8-9
|
| 68
|
146, App C 137, 150
|
| 69
|
173, App C 187
|
| 70
|
164, App C 168, 187
|
| 71
|
App C 168
|
| 73
|
App C 86
|
| 74
|
App C 9, 11
|
| 75
|
182, App C 282
|
| 77-78
|
162, App C 152
|
| 79-81
|
App C 278
|
| 86
|
App C 273
|
| 92
|
328, App C 76
|
| 94
|
113, 126, App C 218, 258
|
| 96
|
App C 281
|
| Interpretation Ordinance 1967
|
|
| 15
|
267, App C 17, 266
|
| 54
|
App C 266
|
| Motor Traffic (Alcohol and Drugs) Ordinance 1977
|
494
|
|
| |
| 39
|
41
|
| Supreme Court Rules
|
|
| O 34, r 4
|
41
|
| O 38, r 18
|
41
|
| O 39, r 1
|
41
|
| Christmas-Cocos (Keeling) Islands
|
|
| Criminal Procedure Code (Singapore)
|
|
| 197
|
App C 20
|
| Evidence Ordinance (Singapore)
|
|
| 5-8
|
App C 60
|
| 9
|
App C 60, 281
|
| 10-12
|
App C 60
|
| 13
|
App C 60, 69
|
| 14-15
|
App C 60, 171
|
| 16
|
App C 60, 273
|
| 25-27
|
App C 150
|
| 30
|
App C 150
|
| 32
|
131, App C 80
|
| 34
|
App C 273
|
| 38
|
App C 267
|
| 45
|
App C 110, 267, 273
|
| 46-50
|
App C 110
|
| 51
|
App C 91
|
| 52-53
|
App C 174
|
| 54
|
App C 174, 168, 267
|
| 55
|
App C 174
|
| 57
|
App C 273
|
| 59
|
App C 91
|
| 60
|
App C 38, 91
|
| 62
|
App C 273
|
| 67
|
App C 281
|
| 78
|
App C 70, 73, 266, 273
|
| 78d
|
App C 267
|
| 79
|
App C 267, 273
|
| 84
|
App C 273
|
| 85
|
App C 267, 281
|
| 87
|
App C 76
|
| 88
|
App C 273
|
| 89
|
App C 94
|
| 115
|
App C 273
|
| 119
|
237, App C 4
|
| 121
|
App C 7, App C 9
|
| 135
|
App C 304
|
| 144
|
App C 45
|
| 149
|
App C 180
|
| 156
|
334, App C 38
|
| 158
|
App C 88
|
| Interpretation Ordinance (Christmas Island) 1958
|
|
| 57
|
App C 266, 273
|
| 6
|
App C 273
|
| Interpretation Ordinance (Cocos Island) 1955
|
|
| 9
|
App C 266
|
| 6
|
App C 273
|
| Oaths Ordinance
|
|
| 5
|
App C 17
|
| Registration of Births and Deaths Ordinance (Singapore)
|
|
| 23
|
App C 71
|
| Registration of Deeds Ordinance (Singapore)
|
|
| 22
|
App C 71
|
| New South Wales
|
|
| Child Welfare Act 1939
|
|
| 131
|
210, App C 304
|
| Children (Equality of Status) Act 1975
|
|
| 12
|
389, App C 155
|
| 10
|
App C 297
|
| Commercial Causes Act 1903
|
|
| 6
|
707
|
| Community Welfare Act 1982
|
|
| 128
|
App C 140
|
|
| |
| 186
|
343
|
|
| |
| 81B
|
App C 302
|
| 405
|
App C 19
|
| 405C
|
App C 302
|
| 407
|
197, App C 8-9, 11
|
| 408
|
131, App C 80
|
| 409
|
App C 86, 302, 387
|
| 410
|
142, 147, App C 131, 138
|
| 412
|
App C 168
|
| 413
|
164, 172, 173, App C 95, 183, 168
|
| 413A
|
App C 186, 187, 171
|
| 413B
|
App C 167, 168
|
| 414A
|
182, App C 282
|
| 418
|
210, App C 304
|
| 419
|
App C 94, 306
|
| 419A
|
182, App C 282
|
| Crimes (Domestic Violence)Amendment Act 1982
|
|
| 407
|
538, App C 9
|
| Crimes (Sexual Assaults) Amendment Act 1981
|
210, App C 302
|
|
| |
| 61
|
App C 299
|
| Crown Lands Consolidation Act 1913
|
|
| 246
|
107, App C 226
|
|
| |
| 15
|
App C 162
|
| 55
|
163
|
|
| |
| 69
|
707
|
|
| |
| 3
|
205, App C 45
|
| 7
|
324
|
| 9
|
App C 207
|
| 11
|
114, App C, 45, 195
|
| 12
|
App C 237
|
| 14
|
182, 343, 688
|
| 14A-14B
|
App C 283
|
| 14B-14C
|
App C 94
|
| 14CE
|
App C 94, 283
|
| 14CG
|
App C 94, 283
|
| 14CI
|
App C 283
|
| 14CP
|
App C 94, 283
|
| 14CR-14CS
|
App C 94, 283
|
| 15
|
App C 71, 72, 73, 76, 267
|
| 16
|
App C 69
|
| 16A
|
App C 278
|
| 17
|
App C 267
|
| 18
|
App C 266
|
| 19
|
App C 267
|
| 19A
|
App C 267
|
| 20
|
App C 76
|
| 22
|
App C 74
|
| 23
|
328, App C 76, 151
|
| 24
|
App C 273
|
| 24A
|
App C 273
|
| 26
|
App C 71
|
| 28
|
App C 71
|
| 29
|
App C 161
|
| 30
|
App C 71
|
| 32
|
App C 72
|
| 33
|
App C 71
|
| 34
|
App C 67
|
| 35
|
App C 278
|
| 43
|
182
|
| 43A
|
App C 94, 282
|
| 44-50
|
App C 94
|
| 53
|
App C 40
|
| 55
|
205, App C 151
|
| Evidence (Amendment) Act 1979
|
|
| 60-61
|
App C 247-8
|
| Evidence (Reproduction) Act 1967
|
176-7, 649, 53-6, App C 65
|
| 3
|
App C 66
|
| Interpretation Act 1897
|
|
| 27
|
App C 273
|
| 34
|
App C 266
|
|
| |
| 26
|
App C 237
|
|
| |
| 617, 8
|
App C 266
|
| Maintenance Act 1964
|
App C 155
|
| 32
|
App C 306
|
| Oaths Act (1900)
|
|
| 12
|
App C 17
|
| 13
|
267, App C 17
|
| 19
|
App C 18
|
|
| |
| 17
|
App C 226
|
|
| |
| 82
|
707, 1025
|
| Supreme Court Rules
|
|
| Part 23, r 6A
|
App C 238
|
| Part 25, r 8
|
App C 310
|
| Part 36, r 13A
|
App C 240
|
| Norfolk Island
|
|
| Evidence Ordinance 1960
|
|
| 4
|
App C 273
|
| 7
|
656
|
| 15
|
App C 69, 76, 273
|
| 17
|
App C 267, 273
|
| 18
|
App C 266-7
|
| 19
|
App C 267
|
| 21
|
App C 76
|
| 23
|
App C 76
|
| Maintenance Ordinance 1913
|
|
| 5
|
App C 306
|
| Oaths Ordinance 1960
|
|
| 14
|
App C 7
|
| Registration of Births, Deaths and Marriages Ordinance 1963
|
|
| 56
|
App C 71
|
| Northern Territory
|
|
| Criminal Law Consolidation Amendment Act
|
|
| 14
|
210, App C 302
|
| 210
| |
| 9
|
197, App C 8-9
|
| 9C
|
197, App C
|
| 10
|
App C 207
|
| 11
|
App C 304
|
| 12
|
App C 20
|
| 13
|
App C 41
|
| 18
|
App C 40
|
| 23
|
App C 278
|
| 26
|
162, 688, App C 71
|
| 26A
|
App C 152
|
| 26B
|
App C 159
|
| 26C
|
App C 152
|
| 26D
|
App C 96, 282
|
| 26F
|
App C 94, 282
|
| 26H
|
App C 278
|
| 26J
|
App C 282
|
| 27
|
App C 267, 273
|
| 28A
|
App C 266
|
| 30
|
App C 70
|
| 31
|
App C 69, 72
|
| 32
|
328, App C 76
|
| 34
|
App C 71
|
| 35
|
712, App C 282
|
| 36
|
App C 273
|
| 37-38
|
App C 71
|
| 40
|
App C 71
|
| 41
|
App C 72
|
| 42
|
182, App C 66
|
| 42A
|
App C 94, 282
|
| 43-49
|
App C 94
|
| 50
|
711, App C 282
|
| 51-56
|
App C 282
|
| 62
|
App C 273
|
| 62A
|
App C 273
|
| 63
|
App C 267
|
| 64
|
App C 273
|
| 96
|
App C 281
|
| Evidence Act Amendment Act 1982
|
|
| 42D
|
867, App C 249
|
| Interpretation Act
|
|
| 25
|
App C 273
|
| 65
|
App C 266
|
|
| |
| 152
|
App C 86
|
| Maintenance Act 1980
|
|
| 101E
|
App C 152
|
| Oaths Act
|
|
| 14
|
App C 17
|
| 21-22
|
App C 18
|
| Status of Children Act 1979
|
|
| 5
|
App C 297
|
| 9
|
349, App C 159
|
| Supreme Court Rules
|
|
| O 34
|
App C 310
|
| Queensland
|
|
| Aboriginal Preservation and Protection Act 1939
|
|
| 34
|
App C 139
|
| Aborigines and Torres Strait Islanders’ Affairs Act 1965
|
|
| 38
|
App C 139
|
|
| |
| 391
|
App C 273
|
| Commissions of Enquiry Act 1950
|
853
|
| Commissions of Enquiry Act 1954
|
|
| 14
|
App C 266
|
| Criminal Code
|
|
| 52
|
App C 306
|
| 125
|
App C 306
|
| 442K
|
107, App C 226
|
| 619
|
App C 20
|
| Criminal Code 1889
|
|
| 212
|
210, App C 302
|
| 215-216
|
210, App C 302
|
| 218
|
210, App C 302
|
| 632
|
210
|
|
| |
| 10
|
App C 138
|
| Criminal Law Sexual Offences Act 1978
|
|
| 3
|
App C 179
|
| Equity Act 1867
|
54
|
|
| |
| 8
|
App C 8-9
|
| 9
|
210, App C 304
|
| 10
|
App C 207
|
| 11
|
114, App C 195
|
| 14
|
113, 126, App C 218, 238, 258
|
| 15
|
App C 76, 171, 187, 209
|
| 17
|
App C 40
|
| 21
|
App C 76
|
| 38
|
App C 216
|
| 41
|
App C 273
|
| 42
|
App C 273
|
| 43
|
App C 266, 273
|
| 44
|
App C 69, 76, 267, 273
|
| 45-46
|
656
|
| 48
|
App C 266
|
| 52
|
App C 71
|
| 53
|
App C 73, 75
|
| 56-58
|
App C 71
|
| 59
|
App C 266, 281
|
| 62
|
App C 278
|
| 64
|
App C 161
|
| 65-66
|
App C 273
|
| 67
|
App C 267
|
| 68
|
App C 267, 273
|
| 69
|
328, App C 76
|
| 72
|
App C 70
|
| 74
|
App C 71
|
| 75
|
711, App C 94, 282
|
| 76-77
|
App C 282
|
| 78
|
App C 152
|
| 79
|
162, 388, App C 152
|
| 80
|
163
|
| 81
|
App C 152
|
| 83-88
|
App C 94
|
| 90-91
|
App C 94
|
| 92
|
389, 688, App C 94
|
| 93
|
App C 94
|
| 94
|
131, App C 87, 94
|
| 95
|
App C 94
|
| 98
|
App C 94
|
| 100
|
App C 94
|
| 101
|
App C 87-8, 94
|
| 104
|
176, App C 65
|
| 105
|
App C 66
|
| 116
|
App C 66
|
| Evidence and Discovery Act 1867-1977
|
|
| 31
|
App C 75
|
|
| |
| 111
|
App C 86
|
|
| |
| 59
|
App C 266
|
|
| |
| 30
|
App C 157, 306
|
| Oaths Act 1967
|
|
| 18
|
App C 17
|
| 19
|
App C 17
|
| Oaths Act Amendment Act 1894
|
|
| 2
|
App C 17
|
| Real Property Act 1861-1980
|
|
| 122
|
App C 71
|
| Registration of Titles Act 1884
|
|
| 6
|
App C 71
|
|
| |
| 8
|
389, App C 157
|
| Statutory Instruments Reprint Act 1952
|
|
| 6
|
App C 266
|
| Vagrants Gaming and Other Offences Act 1931
|
|
| 55
|
App C 273
|
| South Australia
|
|
| Births, Deaths & Marriages Registration Act 1966
|
|
| 67
|
App C 71
|
| Community Welfare Act, 1972
|
|
| 140
|
App C 304
|
| Criminal Law Consolidation Amendment Act
|
|
| 63-64
|
210, App C 302
|
| 72
|
210, App C 302
|
| Criminal Procedure Act 1955
|
|
| 234
|
App C 208
|
|
| |
| 4
|
App C 179
|
| 6
|
App C 18
|
| 8
|
App C 17, 18
|
| 13
|
210, App C 304
|
| 18
|
114, 162, 173, 1
|
| 20
|
App C 20
|
| 21
|
114, App C 9-11, 195
|
| 27
|
App C 40
|
| 31
|
App C 278
|
| 33
|
App C 273
|
| 34
|
162, 388-9, 688
|
| 34a
|
App C 152
|
| 34c-34d
|
App C 94, 283
|
| 34f
|
App C 278
|
| 37
|
656, App C 266, 273
|
| 37a-37b
|
App C 266
|
| 38
|
App C 76, 273, 267
|
| 39
|
App C 273
|
| 40
|
App C 69, 70
|
| 44
|
App C 71
|
| 45
|
182, 342, 712, App C 94, 282
|
| 45a
|
App C 94, 282
|
| 45b
|
134, App C 94, 282
|
| 46-52
|
App C 94
|
| 53
|
711, App C, 75, 94, 282
|
| 54-7
|
App C 282
|
| 59
|
344, 702, App C 41, 282, 3
|
| 59b
|
App C 94
|
| 62
|
App C 273
|
| 63
|
App C 267, 273
|
| 63A
|
App C 267
|
| 64
|
102, App C 273
|
| Evidence Amendment Act 1982
|
App C 94
|
| Evidence Amendment Act 1983
|
|
| 3
|
App C 20, 22
|
| Evidence Amendment Act (No 2) 1983
|
196
|
| 4
|
App C 9
|
|
| |
| 7
|
389, App C 159
|
| 11
|
App C 10, 297
|
| Justices Act 1921
|
|
| 152
|
App C 86
|
|
| |
| 739
|
App C 266
|
| Proof of Sunrise & Sunset Act 1923
|
|
| 213
|
App C 273
|
| Registration of Deeds Act 1935-80
|
|
| 44
|
App C 71
|
|
| |
| 16
|
App C 226
|
| Supreme Court Rules
|
|
| O 31
|
App C 240, 310
|
| Tasmania
|
|
|
| |
| 38
|
App C 273
|
| 39
|
App C 266
|
| 56
|
App C 266
|
| Criminal Code
|
|
| 136
|
210
|
| 371
|
App C 19, 20
|
| Environment Protection Act 1973
|
|
| 42
|
389, App C 282
|
| 43
|
389, App C 282
|
| 69-71
|
656
|
| Evidence Act 1910
|
|
| 27-32
|
App C 226
|
| 33-39
|
App C 94
|
| 40
|
182, 343, App C 94
|
| 40A
|
App C 68, 94, 282-3
|
| 40B-C
|
App C 68, 94
|
| 40E
|
App C 94
|
| 40G
|
App C 283
|
| 40J
|
App C 282
|
| 40M
|
App C 282
|
| 40N
|
App C 94
|
| 40P-Q
|
App C 94
|
| 41
|
711, App C 94, 282
|
| 44
|
App C 267, 273
|
| 45-47
|
App C 273
|
| 48-51
|
App C 266
|
| 53-54
|
App C 267, 273
|
| 55
|
App C 70
|
| 57
|
App C 69, 72
|
| 59
|
App C 273
|
| 61
|
App C 71
|
| 62
|
App C 161
|
| 64
|
App C 71
|
| 65-6
|
App C 267
|
| 67
|
102, App C 273, 306
|
| 68
|
176, App C 65, 66
|
| 73
|
App C 266
|
| 74
|
App C 72
|
| 75
|
App C 75-6
|
| 76
|
328, App C 75-6, 151
|
| 81
|
131, 389, 695, 712
|
| 81A-D
|
App C 94
|
| 81F
|
App C 82, 94
|
| 81G
|
App C 94
|
| 81H
|
App C 94, 282
|
| 81K
|
App C 80
|
| 81L
|
App C 87-8, 94
|
| 81Q
|
App C 94
|
| 85
|
173, 197, App C 8-9, 11, 187, 209
|
| 87
|
App C 219
|
| 88
|
107, App C 226, 219
|
| 89
|
App C 219
|
| 94
|
114, App C 195
|
| 96
|
App C 201, 203, 306
|
| 97-98
|
App C 40
|
| 99
|
205, App C 45
|
| 101
|
App C 219
|
| 107
|
App C 278
|
| 108
|
App C 281
|
| 116A
|
App C 94
|
| 118
|
App C 299
|
| 120
|
App C 306
|
| 128
|
210, App C 304
|
| 134
|
692, App C 86
|
| Industrial Relations Act 1975
|
|
| 61
|
389
|
| Maintenance Act 1967
|
|
| 35
|
App C 304
|
|
| |
| 23
|
389
|
|
| |
| 36
|
App C 267
|
| Supreme Court Rules
|
|
| O 40
|
App C 240
|
| Victoria
|
|
|
| |
| 34
|
App C 267
|
|
| |
| 54
|
529
|
| County Court Rules
|
|
| O 23, r 10
|
App C 278
|
|
| |
| 399
|
197, App C 11, 187, 209
|
| 51
|
210, App C 302
|
| 54-55
|
210, App C 302
|
| 59
|
210, App C 302
|
| 62
|
App C 302
|
| 399
|
252, App C 8, 11, 19
|
| 400
|
252, App C 9
|
| 406
|
App C 30E
|
| 568
|
App C 299
|
| Crimes Act (Sexual Offences) 1980
|
|
| 5
|
App C 302
|
| 62
|
210
|
|
| |
| 3
|
App C 61
|
| 11
|
529
|
| 23
|
210, App C 304
|
| 25
|
App C 19, 273
|
| 27
|
114, App C 195
|
| 28
|
116, 119, App C 200, 203
|
| 29
|
App C 208, 218
|
| 37A
|
App C 179
|
| 45
|
App C 72, 76, 267
|
| 47
|
656
|
| 48
|
App C 267, 273
|
| 49
|
App C 76
|
| 50
|
App C 266
|
| 52
|
App C 71
|
| 53
|
176, App C 65, 282
|
| 55
|
343, 389, App C 94, 282
|
| 55B
|
App C 283
|
| 56
|
App C 94, 282
|
| 58
|
App C 278
|
| 58A-58J
|
App C 94
|
| 61
|
App C 266
|
| 62
|
656
|
| 65
|
App C 69
|
| 68
|
App C 266
|
| 73
|
App C 71
|
| 74
|
App C 161
|
| 75
|
182
|
| 75A
|
App C 283
|
| 76
|
App C 267
|
| 77-78
|
App C 273
|
| 79
|
App C 72, 273
|
| 81
|
688
|
| 82-85
|
App C 266
|
| 88
|
328, App C 76
|
| 100
|
App C 18
|
| 147
|
App C 278
|
| 149
|
146, App C 136
|
|
| |
| 108
|
App C 71
|
| Magistrates’ Court Act 1971
|
|
| 46
|
529
|
| Magistrates’ Court Rules
|
|
| 124
|
App C 278
|
|
| |
| 54
|
529
|
| 59
|
592
|
| 163
|
App C 86
|
|
| |
| 27
|
App C 306
|
|
| |
| 11
|
App C 71
|
|
| |
| 53
|
App C 71
|
|
| |
| 62
|
App C 267
|
| 178
|
App C 266
|
| Supreme Court Rules
|
|
| O 37
|
529
|
|
| |
| 18
|
App C 201
|
| Western Australia
|
|
|
| |
| 49
|
App C 139
|
| Affirmations Act 1892
|
|
| 1
|
App C 17
|
| Criminal Code
|
|
| 126
|
App C 306
|
| 185
|
210, App C 302
|
| 187-188
|
210, App C 302
|
| 191-192
|
210, App C 302
|
| 352
|
App C 306
|
| 637
|
App C 20
|
| 689
|
App C
|
|
| |
| 8
|
194, 197, App C 8-9, 11, 187, 209
|
| 9
|
114, App C 195
|
| 11
|
App C 219
|
| 12
|
107, App C 219, 266
|
| 13
|
App C 219
|
| 20-21
|
App C 40
|
| 22
|
205, App C 45, 183
|
| 30
|
App C 278
|
| 31
|
App C 282
|
| 32A
|
App C 134, 240
|
| 36
|
787
|
| 36A
|
App C 179
|
| 37
|
App C 302
|
| 41A
|
App C 94, 282
|
| 46A
|
273
|
| 47
|
328, App C 75, 76
|
| 53
|
App C 267, 273
|
| 54-56
|
App C 273
|
| 58-61
|
App C 266
|
| 63-64
|
App C 267, 273
|
| 65
|
App C 70
|
| 67
|
App C 69, 72
|
| 68
|
App C 71
|
| 69
|
656, App C 71
|
| 70-71
|
App C 267
|
| 72
|
102, App C 273
|
| 73
|
176, App C 65
|
| 74-76
|
656
|
| 79B
|
App C 61, 94, 283
|
| 79C
|
App C 94, 283
|
| 79D
|
App C 283
|
| 79E
|
App C 76
|
| 80
|
App C 76
|
| 81
|
173
|
| 82
|
711, App C 94, 282
|
| 83-87
|
App C 282
|
| 88
|
App C 75, 282
|
| 89
|
App C 75, 94
|
| 90-96
|
App C 94
|
| 101
|
210, App C 304
|
| 107
|
App C 86
|
| 172
|
App C 267
|
| Interpretation Act 1918
|
|
| 31
|
App C 273
|
|
| |
| 55
|
App C 306
|
|
| |
| 19
|
App C 71
|
|
| |
| 15
|
App C 71
|
|
| |
| 20
|
App C 226
|
| Supreme Court Rules
|
|
| O 36A
|
App C 240
|
India |
|
| Evidence Act 1872
|
137
|
New Zealand |
|
| Evidence Amendment Act (No 2) 1980
|
850
|
| Evidence Act 1908
|
|
| 20
|
App C 137
|
South Africa |
|
| Computer Evidence Act 1983
|
182, App C 283
|
United Kingdom |
|
| Civil Evidence Act 1968
|
691
|
| 2
|
688
|
| 3
|
743
|
| 4
|
688
|
| 8
|
688, 695
|
| 9
|
710
|
| 11
|
388, 755, App C 152
|
| 14
|
App C 216
|
| 16
|
App C 257
|
| Common Law Procedure Act 1854
|
|
| 22
|
App C 40
|
| Contempt of Court Act 1981
|
|
| 10
|
954
|
| Criminal Evidence Act 1898
|
|
| 1
|
App C 187
|
| Criminal Procedure Act 1865
|
|
| 3
|
App C 40
|
| Foreign Tribunals Act 1856
|
|
| 1
|
App C 197
|
| Documentary Evidence Act 1868 (Imp)
|
App C 266
|
| Rules of the Supreme Court 1965
|
|
| O 38
|
688, 695
|
| Treason Act 7 & 8 Wm III c3 (Imp) (1695)
|
App C 306
|
| Treason Act 39 & 40 Gen III c93 (Imp) (1800)
|
App C 306
|
| United Kingdom Evidence (Proceedings in other Jurisdictions) Act 1975
|
|
| 3
|
App C 216
|
| Witnesses Act 1806
|
App C 208
|
United States |
|
| Federal
|
|
|
| |
| 10
|
775
|
| 12
|
775
|
| 146
|
775
|
| Rules of Civil Procedure for the United States District Courts 1981
|
|
| r 26
|
719
|
| Rules of Criminal Procedure for the United States District Courts 1979
|
|
| r 16
|
719
|
| US Federal Rules of Evidence
|
|
| 407
|
App C 57
|
| 615
|
41
|
| 702
|
356, App C 103
|
| 603
|
561
|
| 1001
|
651
|
| 1003
|
651
|
| 803
|
704, 710, 715
|
| 801
|
755, App C 112
|
| State
|
|
| California Evidence Code, 1965
|
|
| 605
|
36
|
| 765
|
41
|
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TOLLEFSON EA, The Privilege Against Self-Incrimination in England and Canada, D Phil Dissertation, Oxford University (Unpublished).
TOMASIC R, ‘Lawyers, Technology & The Courts’ (1978) 11 Australian & New Zealand Journal of Criminology 219.
TRAUTMAN HL, ‘Logical or Legal Relevancy—A Conflict in Theory’ (1952) 5 Vanderbilt Law Review 385.
TRAVERS AH, Jr, ‘An Essay on the Determination of Relevancy Under the Federal Rules of Evidence’ [1977] Arizona State Law Journal 327.
TRAYNOR RJ, ‘Ground Lost and Found in Criminal Discovery’ (1964) 39 New York University Law Review 228.
TREITEL GH, ‘The Presumption of Death’ (1954) 17 Modern Law Review 530.
TRUDGILL P, ‘Sex, Covert Prestige, and Linguistic Change in the Urban British English of Norwich’ (1972) 1 Language in Society 179.
TULVING E & THOMSON DM, ‘Encoding Specificity and Retrieval Processes in Episodic Memory’ (1973) 80 Psychological Review 352.
TULVING E, ‘Cue-dependent Forgetting’ (1974) 62 American Scientist 74.
TURNER AK, ‘Reforms in the Laws of Evidence’ [19691 New Zealand Law Journal 211.
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VAN DUSEN FL, ‘The Impartial Medical Expert System: the Judicial Point of View’ (1961) 34 Temple Law Quarterly 386.
VAVER D, ‘Without Prejudice Communications-Their Admissibility and Effect’ (1974) 9 University of British Columbia Law Review 85.
WAIGHT PK & WILLIAMS CR, Cases and Materials on Evidence, Law Book Co, Sydney, 1980.
WALKER AG & WALKER NM, The Law of Evidence in Scotland, William Hodge & Co, Edinburgh, 1964.
WALKER DM, The Oxford Companion to Law, Clarendon Press, Oxford, 1980.
WALKER N & PEARSON A (ed) The British Jury System, Proceedings of the 7th Cropwood Roundtable Conference, Cambridge, 1975.
WALL PM, Eyewitness Identification of Criminal Cases, Charles Thomas, Springfield, 1965.
WALLACE J, ‘What Units Shall We Employ? Allport’s Question Revisited’ (1967) 31 Journal of Consulting Psychology 56.
WALTON A, Russell on the Law of Arbitration, 19th edn, Steven & Sons, London, 1979.
WANNER E, On Remembering, Forgetting and Understanding Sentences, Mouton, The Hague, 1974.
WARR PB (ed) Psychology at Work, Penguin, London, 1971.
WARREN S, Ten Thousand a Year, EW Cole, Melbourne, 1884.
WATTS W & McGUIRE W, ‘Persistence of Induced Opinion Change and Retention of the Inducing Message Contexts’ (1964) 68 Journal of Abnormal and Social Psychology 233.
WEINBERG MS, ‘The Judicial Discretion to Exclude Relevant Evidence’ (1975) 21 McGill Law Journal 1.
WEINBERG MS, ‘The Admissibility of Out-of-Court Identification Evidence in Criminal Cases’ [1980] MelbULawRw 16; (1980) 12 Melbourne University Law Review 543.
WEINBERG MS, ‘Implied Assertions and the Scope of the Hearsay Rule’ [1973] MelbULawRw 21; (1973) 9 Melbourne University Law Review 268.
WEINBERG MS, ‘The Law of Testimonial Oaths & Affirmations’ [1976] MonashULawRw 11; (1976) 3 Monash University Law Review 25.
WEIMER J ‘Real and Imagined Cost Effects upon Human Fixed Interval Responding’ (1964) 17 Psychology Report 659.
WEINSTEIN JB & BERGER MA, Weinstein’s Evidence, Matthew Bender, New York, 1982.
WEINSTEIN JB, ‘Some Difficulties in Devising Rules For Determining Truth in Judicial Trials’ (1966) 66 Columbia Law Review 223.
WEINSTEIN JB, ‘Alternatives to the Present Hearsay Rules’ (1968) 44 Federal Rules Decisions 375.
WEINSTEIN JB, ‘Probative Force of Hearsay’ (1961) 46 Iowa Law Review 331.
WELLS W, An Introduction to the Law of Evidence, 3rd edn, Govt Printer, Adelaide, 1979.
WELLS GL, LINDSAY RCL & FERGUSON TT, ‘Accuracy, Confidence and Juror Perceptions in Eyewitness Identification’ (1979) 64 Journal of Applied Psychology 440.
WHIPPLE GM, ‘The Observer as Reporter’ (1909) 6 Psychological Bulletin 153.
WIDGERY JP, ‘The Balance of the Criminal Law Trial’ [1972] New Zealand Law Journal 478.
WIGMORE JH, A Treatise on the Anglo-American System of Evidence, 3rd edn, Little, Brown & Co, Boston, 1940.
WILEY M G & HUDIK T, ‘Police-Citizen Encounters: A Field Test of Exchange Theory’ (1974) 22 Social Problems 119-27.
WILKEY MR, ‘The Exclusionary Rule: Costs and Viable Alternatives’ (1982) 1 Crim J Ethics 16.
WILLIAMS G, ‘The Mathematics of Proof’ [19791 Criminal Law Review 29.
WILLIAMS G, The Proof of Guilt, 2nd edn, Stevens & Sons, London, 1958.
WILLIAMS CR, ‘Silence and the Unsworn Statement: An Accused’s Alternatives to Giving Sworn Evidence’ (1976) (0 Melbourne University Law Review 481.
WILLIAMS CR, ‘The Problem of Similar Fact Evidence’ (1979) 13 Dalhousie Law Journal 281.
WILLIAMS G, ‘Evidence of Identification: The Devlin Report’ [1976] Criminal Law Review 407.
WILLIAMS G, ‘The Authentication of Statements to the Police’ [1979] Crim Law Review 6.
WILLIAMS G, The Proof of Guilt 2nd edn, London, 1958.
WILLIAMS NJ, ‘Discovery of Civil Litigation Trial Preparation in Canada’ (1980) 58 Canadian Bar Review 1.
WILLIAMS NJ (ed) Supreme Court Practice, Victoria, 2nd edn, Butterworths, Melbourne, 1973.
WILLIS J & SALLMANN P, ‘Criminal Statistics in the Victorian Higher Courts: A First Glimpse of the Possibilities’ (1977) 51 Law Institute Journal 498.
WILLS W, The Law of Evidence 3rd edn, Stevens & Sons, London, 1938.
WINOGRAD T, ‘Understanding Natural Language’ (1972) 3 Cognitive Psychology, 1.
WISE TP, ‘Where the Public Peril Begins: A Survey of Psychotherapists to Determine the Effects of Tarasoff (/978-9) 31 Stanford Law Review 165.
WOELLNER RH, ‘The Law and Medical Confidentiality’ 1st Report of The James McGrath Foundation Institute of Law and Medicine, December 1980.
WOOCHER FB, ‘Did your Eyes Deceive You? Expert Psychological Testimony on the Unreliability of Eyewitness Identification’ (1977) 29 Stanford Law Review 969.
WOOD RP, ‘Evidence: ‘Justification for Extension of the Psychotherapist Privilege’ (1977-78) 17 Washburn Law Journal 672.
WRIGHT CA, ‘Admissibility of Criminal Convictions in Civil Actions—Hearsay’ (1943) 21 Canadian Bar Review 653.
WYNES WA, Legislative, Executive and Judicial Powers in Australia, 5th edn, Law Book Co, Sydney, 1976.
YARMEY AD, The Psychology of Eye-Witness Testimony, Free Press, MacMillan, New York, 1979.
YEO MH, ‘At the Crossroads of R v Sang and Bunning v Cross’ (1982) 6 Criminal Law Journal 89.
YEO MH, ‘Diminishing the Right to Silence: The Singapore Experience’ [1983] Criminal Law Review 89.
YEO MH, ‘The Discretion to Exclude Illegally and Improperly Obtained Evidence: A Choice of Approaches’ [1981] MelbULawRw 2; (1981) 13 Melbourne University Law Review 31.
YOUNG MJ & EVANS G, A National Crimes Commission? Policy Discussion Paper, AGPS, Canberra, 1973.
ZANDER M, ‘Are Too Many Professional Criminals Avoiding Conviction?—A Study in Britain’s Two Busiest Courts’ (1974) 37 Modern Law Review 28.
ZANDER M, ‘The Acquittal Rate of Professional Criminals: A Reply’ (1974) 37 Modern Law Review 444.
ZANDER M, ‘Access to a Solicitor in a Police Station’ [1972] Criminal Law Review 342.
ZEIDLER W, ‘Evaluation of the Adversary System: As Comparison, Some Remarks on the Investigatory System of Procedure’ (1981) 55 Australian Law Journal 390.
ZIMBARDO P & EBBESEN E, Infuencing Attitudes and Changing Behaviour, Adison Wesley, Boston, 1969.
ZINES L, The High Court and the Constitution, Butterworths, Sydney, 1981.
ZISKIN J, Coping with Psychiatric and Psychological Testimony, vol 1 & 2, Law and Psychology Press, 1981.
ZUBIN J, ‘Classification of the Behaviour Disorders’ (1967) 18 Annual Review of Psychology 110.
ZUCKERMAN A, ‘Previous Convictions as Evidence of Guilt’ (1971) 87 Law Quarterly Review 21.
ZUCKERMAN A, ‘Corroboration: Judicial Reform in Canada’ (1984) 4 Oxford Journal of Legal Studies 147.
AUSTRALIA
Federal
AUSTRALIAN BUREAU OF STATISTICS, Divorces, Australia, ALPS, Canberra, 1981.
BUREAU OF STATISTICS, Australian Families, 1982, AGPS, Canberra, 1982.
COMMISSION OF INQUIRY INTO POVERTY, Law and Poverty in Australia, 2nd Main Report, AGPS, Canberra, 1976.
CRIME PREVENTION CORRECTION AND AFTER CARE COUNCIL, Sub-Committee Report, Confidentiality, presented at the 6th Conference of the Council, August 1971.
INSTITUTE OF MULTICULTURAL AFFAIRS, Evaluation of Post-Arrival Programs and Services, Globe Press, Melbourne, 1982.
LAW REFORM COMMISSION, Discussion Paper No 18, Aboriginal Customary Law-Marriage, Children and the Distribution of Property, AGPS, Canberra, 1982.
LAW REFORM COMMISSION, Evidence Research Paper No 1, Comparison of Evidence Legislation Applying in Federal Courts and Courts of the Territories (A Sowden) Sydney, 1981.
LAW REFORM COMMISSION, Evidence Research Paper No 2, Common Law of Evidence: Areas of Disagreement and Uncertainty (SJ Odgers) Sydney, 1981.
LAW REFORM COMMISSION, Evidence Research Paper No 3, Hearsay Evidence Proposal (TH Smith) Sydney, 1981.
LAW REFORM COMMISSION, Evidence Research Paper No 4, Secondary Evidence of Documents (TH Smith) Sydney, 1981.
LAW REFORM COMMISSION, Evidence Research Paper No 5, Competence and Compellability of Witnesses (LRe & TH Smith) Sydney, 1981.
LAW REFORM COMMISSION, Evidence Research Paper No 6, Sworn and Unsworn Evidence (L Re & TH Smith) Sydney, 1982.
LAW REFORM COMMISSION, Evidence Research Paper No 7, Relevance (SJ Odgers) Sydney, 1982.
LAW REFORM COMMISSION, Evidence Research Paper No 8, Manner of Giving Evidence (L Re & TH Smith) Sydney, 1982.
LAW REFORM COMMISSION, Evidence Research Paper No 9, Hearsay Law Reform—Which Approach (MD Kirby, IG Cunliffe & TH Smith) Sydney, 1982.
LAW REFORM COMMISSION, Evidence Research Paper No 10, The Judge—Adducing Evidence and Judicial Notice (L Re & TH Smith) Sydney, 1982.
LAW REFORM COMMISSION, Evidence Research Paper No 11, Character and Conduct (SJ Odgers) Sydney, 1983.
LAW REFORM COMMISSION, Evidence Research Paper No 12, Identification Evidence (L Re) Sydney, 1983.
LAW REFORM COMMISSION, Evidence Research Paper No 13, Opinion Evidence (I Freckelton) Sydney, 1983.
LAW REFORM COMMISSION, Evidence Research Paper No 14, Aspects of Proof (M Ball) Sydney, 1983.
LAW REFORM COMMISSION, Evidence Research paper No 15, Admissions and Confessions (SJ Odgers) Sydney, 1983.
LAW REFORM COMMISSION, Evidence Research Paper No 16, Privilege (I Freckelton & TH Smith) Sydney, 1983.
LAW REFORM COMMISSION, Issues Paper No 3, Reform of Evidence Law, Sydney, 1980.
LAW REFORM COMMISSION, Issues Paper No 4, Contempt AGPS, Canberra, 1984.
LAW REFORM COMMISSION, Report No. 1, Complaints against Police, AGPS, Canberra, 1975.
LAW REFORM COMMISSION, Report No 2, Criminal Investigation, AGPS, Canberra, 1975
LAW REFORM COMMISSION, Report No 11, Unfair Publication: Defamation and Privacy, AGPS, Canberra, 1978.
LAW REFORM COMMISSION, Report No 12, Privacy and the Census, AGPS, Canberra, 1979.
LAW REFORM COMMISSION, Report No 15, Sentencing of Federal Offenders, AGPS, Canberra, 1980.
LAW REFORM COMMISSION, Report No 22, Privacy, AGPS, Canberra, 1983.
NATIONAL POPULATION INQUIRY, Report No 1, Population and Australia, AGPS, Canberra, 1975.
NATIONAL POPULATION INQUIRY, Supplementary Report, AGPS, Canberra, 1978.
OFFICE OF THE SPECIAL PROSECUTOR, Annual Report of the Special Prosecutor, 1982-83 (RF Redlich) AGPS, Canberra, 1983.
ROYAL COMMISSION OF INQUIRY INTO DRUG TRAFFICKING, Report, AGPS, Canberra, 1983 (Commissioner: Justice DG Stewart).
ROYAL COMMISSION ON HUMAN RELATIONSHIPS, Report, AGPS, Canberra, 1977.
SENATE STANDING COMMITTEE ON CONSTITUTIONAL AND LEGAL AFFAIRS, Report on the Freedom of Information Bill 1978, AGPS, Canberra, 1979.
SENATE STANDING COMMITTEE ON CONSTITUTIONAL AND LEGAL AFFAIRS, The Burden of Proof in Criminal Proceedings, AGPS, Canberra, 1982.
STEWART REPORT, see ROYAL COMMISSION OF INQUIRY INTO DRUG TRAFFICKING
New South Wales
ANTI-DISCRIMINATION BOARD, Discrimination & Homosexuality, Govt Printer, Sydney, 1982.
CRIMINAL LAW REVIEW DIVISION, Report (28 January 1977) Department of the Attorney-General, Sydney.
CRIMINAL LAW REVIEW DIVISION, Report (28 January 1977) Department of the Attorney-General, Sydney.
LAW REFORM COMMISSION, Discussion Paper, Competence and Compellability, Govt Printer, Sydney, 1980.
LAW REFORM COMMISSION, Discussion Paper, Oaths and Affirmations, Govt Printer, Sydney, 1980.
LAW REFORM COMMISSION, Discussion Paper, Unsworn Statements of Accused Persons, Govt Printer, Sydney, 1980.
LAW REFORM COMMISSION, Hearsay Evidence: An Outline of the Twenty-Ninth Report, Sydney, 1978.
LAW REFORM COMMISSION, Issues Paper, De Facto Relationships, Govt Printer, Sydney, 1981.
LAW REFORM COMMISSION, Report No 17, Evidence (Business Records), Govt Printer, Sydney, 1973.
LAW REFORM COMMISSION, Report No 29, The Rule Against Hearsay, Govt Printer, Sydney, 1978.
LAW REFORM COMMISSION, Report No 36, De Facto Relationships, Govt Printer, Sydney, 1983.
LAW REFORM COMMISSION, Unpublished Working Paper, Corroboration, Sydney, 1978.
LAW REFORM COMMISSION, Unpublished Working Paper, The Accused as a Witness, Sydney, 1978.
LAW REFORM COMMISSION, Unpublished Discussion Paper, Corroboration, Sydney, 1981.
LAW REFORM COMMISSION, Working Paper, Evidence (Business Records) Govt Printer, Sydney, 1972.
LAW REFORM COMMISSION, Working Paper, The Rule Against Hearsay, Govt Printer, Sydney, 1976.
LAW REFORM COMMISSION, Working Paper, The Course of the Trial, Govt Printer, Sydney, 1978.
LAW REFORM COMMISSION, Working Paper, Evidence of Disposition, Govt Printer, Sydney, 1978.
LAW REFORM COMMISSION, Working Paper, Illegally and Improperly Obtained Evidence, Govt Printer, Sydney, 1979.
Northern Territory
LAW REFORM COMMITTEE, Report No 10, Oaths and Affirmations by Witnesses in Court Proceedings, Govt Printer, Darwin, 1983.
Queensland
COMMITTEE OF INQUIRY INTO THE ENFORCEMENT OF CRIMINAL LAW IN QUEENSLAND, Report, Govt Printer, Brisbane, 1977 (Chairman: GAG Lucas).
LAW REFORM COMMISSION, Report No 19, The Law Relating to Evidence, Govt Printer, Brisbane, 1975.
LUCAS REPORT, see COMMITTEE OF INQUIRY INTO THE ENFORCEMENT OF CRIMINAL LAW IN QUEENSLAND.
South Australia
CRIMINAL LAW & PENAL METHODS REFORM COMMITTEE, Second Report, Criminal Investigation, Govt Printer, Adelaide, 1974.
CRIMINAL LAW AND PENAL METHODS REFORM COMMITTEE, Third Report, Court Procedure and Evidence, Govt Printer, Adelaide, 1975 (Chairperson: Justice RF Mitchell).
ROYAL COMMISSION, Report Concerning the Conviction of Edward Charles Splatt, Govt Printer, Adelaide, 1984.
SELECT COMMITTEE OF THE LEGISLATIVE COUNCIL, Final Report, Unsworn Statements and Related Matters, Govt Printer, Adelaide, 1981.
SPLATT REPORT, see ROYAL COMMISSION.
Tasmania
LAW REFORM COMMISSION, Report and Recommendations on The Evidence Bill 1975 (Microfilm and Other Reproductions) Govt Printer, Hobart, 1975.
LAW REFORM COMMISSION, Report and Recommendations, Competence and Compellability of Spouses to Give Evidence in Criminal Proceedings Preferred Against the Other Spouse, Govt Printer, Hobart, 1977.
LAW REFORM COMMISSION, Report No 4, The Evidence Bill 1975 (Microfilm and other Reproductions) Govt Printer, Hobart, 1975.
LAW REFORM COMMISSION, Report No 31, Report and Recommendation on Rape and Sexual Offences, Govt Priner, Hobart, 1982.
LAW REFORM COMMITTEE, Occasional Paper (unpublished) The Hearsay Rule, Recommendations, Hobart, 1972.
LAW REFORM COMMITTEE, Recommendations for Revision of the Criminal Code (no 1) Hobart, 1972.
LAW REFORM COMMITTEE, Working Paper, Law of Evidence—The Hearsay Rule Hobart, 1970.
TASMANIA LAW REFORM COMMISSION, Report No 17, Admissibility of Computer Data in Evidence, Govt Printer, Hobart, 1978.
Victoria
BOARD OF INQUIRY INTO ALLEGATIONS AGAINST MEMBERS OF THE VICTORIAN POLICE FORCE, Report, Govt Printer, Melbourne, 1978 (Chairman: BW BEACH).
BOARD OF INQUIRY INTO BEACH REPORT, see ALLEGATIONS AGAINST MEMBERS OF THE VICTORIAN POLICE FORCE.
CHIEF JUSTICE’S LAW REFORM COMMITTEE, Report of the Sub-Committee, Abolition of Unsworn Statements in Criminal Trials, Govt Printer, Melbourne, 1970.
CHIEF JUSTICE’S LAW REFORM COMMITTEE, Report of the Sub-Committee, Oaths and Affrmations, Govt Printer, Melbourne, 1981.
CHIEF JUSTICE’S LAW REFORM COMMITTEE, Report of the Sub-Committee, Microfilm Evidence, Govt Printer, Melbourne, 1963.
LAW REFORM COMMISSIONER, Report No 5, Rape Prosecution (Court Procedures and Rules of Evidence) Govt Printer, Melbourne, 1976.
LAW REFORM COMMISSIONER, Report No 6, Spouse-Witnesses Competence and Compellability, Govt Printer, Melbourne, 1976.
LAW REFORM COMMISSIONER, Report No 11, Unsworn Statements in Criminal Trials, Govt Printer, Melbourne, 1981.
STATUTE LAW REVISION COMMITTEE, Report: Right of an Accused Person to Make an Unsworn Statement, Govt Printer, Melbourne, 1972.
Western Australia
LAW REFORM COMMISSION, Project No 27, Report on the Admissibility in Evidence of Computer Records and other Documentary Statements, Govt Printer, Perth, 1980.
LAW REFORM COMMISSION, Project No 31, Report on the Competence and Compellability of Spouses to Give Evidence in Civil Proceedings, Govt Printer, Perth, 1977.
LAW REFORM COMMISSION, Project No 53, Privilege for Journalists, Govt Printer, Perth, 1980.
LAW REFORM COMMISSION, Working Paper Project No 27, Admissibility in Evidence of Computer Records and other Documents, Govt Printer, Perth, 1978.
LAW REFORM COMMITTEE, Project No 20, Report on Evidence of Criminal Convictions in Civil Proceedings, Govt Printer, Perth, 1972.
CANADA
Federal
FEDERAL/PROVINCIAL TASK FORCE, Report on Uniform Rules of Evidence, Carswell Co, Toronto, 1982.
LAW REFORM COMMISSION, Evidence Study paper No 1, Competence and Compellability, Information Canada, Ottawa, 1972.
LAW REFORM COMMISSION, Evidence Study Paper No 5, Compellability of the Accused and the Admissibility of his Statements, Information Canada, Ottawa, 1973.
LAW REFORM COMMISSION, Evidence Study Paper No 12, Professional Privileges Before the Courts, Information Canada, Ottawa, 1975.
LAW REFORM COMMISSION, Working Paper No 4, Criminal Procedure—Discovery, Information Canada, Ottawa, 1974.
UNIFORM LAW CONFERENCE OF CANADA, Report of the Federal/Provincial Task Force on the Uniform Rules of Evidence, Carswell Co, Toronto, 1982.
Ontario
COMMISSION ON FREEDOM OF INFORMATION AND INDIVIDUAL PRIVACY, Report on Public Government to Private People, Queen’s Printer, Toronto, 1980.
LAW REFORM COMMISSION, Report on the Law of Evidence, Govt Printer, Toronto, 1976.
Manitoba
LAW REFORM COMMISSION, Report on Medical Privilege, Govt Printer, Winnipeg, 1983.
British Columbia
LAW REFORM COMMISSION, Report No 30, The Rule in Hollington v Hewthorn, Govt Printer Vancouver, 1977.
GREAT BRITAIN
COMMITTEE ON PRIVACY, Report, HMSO, London, 1972. (Chairperson: Rt Hon K Younger).
COMMITTEE ON SUPREME COURT PRACTICE AND PROCEDURE (England & Wales) Final Report, HMSO, London, 1953.
CRIMINAL LAW REVISION COMMITTEE (England & Wales) Eleventh Report, Evidence (General) HMSO, London, 1972.
CRIMINAL LAW REVISION COMMITTEE (England & Wales) Report of the Advisory Group on the Law of Rape, HMSO, London, 1975.
DEPARTMENTAL COMMITTEE ON EVIDENCE OF IDENTIFICATION IN CRIMINAL CASES, Report to the Secretary of State for the Home Department, HMSO, London, 1976 (Chairman: Lord Devlin).
DEVLIN COMMITTEE, see DEPARTMENTAL COMMITEE ON EVIDENCE OF IDENTIFICATION IN CRIMINAL CASES.
LAW REFORM COMMITTEE (England & Wales) Thirteenth Report, Hearsay Evidence in Civil Proceedings, HMSO, London, 1966.
LAW REFORM COMMITTEE (England & Wales) Fifteenth Report, The Role in Hollington v Hewthorn, HMSO, London, 1967.
LAW REFORM COMMITTEE (England & Wales) Seventeenth Report, Evidence of Opinion and Expert evidence, HMSO, London, 1970.
ROYAL COMMISSION ON CRIMINAL PROCEDURE (England & Wales) Report, HMSO, London, 1981.
Scotland
LAW COMMISSION, Memorandum No 46, Law of Evidence, Edinburgh, 1980.
LAW COMMISSION, MEMORANDUM No 8, Draft Evidence Code, Edinburgh, 1968.
LAW COMMISSION, Research Paper on the Law of Evidence of Scotland (Sheriff ID MacPhail) Edinburgh, 1979.
NEW ZEALAND
CRIMINAL LAW REFORM COMMITTEE, Report on Identification, Govt Printer, Wellington, 1978.
TORTS AND GENERAL LAW REFORM COMMITTEE, Report, The Rule in Hollington v Hewthorn, Govt Printer, Wellington, 1972.
TORTS AND GENERAL LAW REFORM COMMITTEE, Report on Medical Privilege, Govt Printer, Wellington, 1974.
TORTS AND GENERAL LAW REFORM COMMITTEE, Report, Professional Privilege in the Law of Evidence, Govt Printer, Wellington, 1977.
TORTS AND GENERAL LAW REFORM COMMITIEE, Report, Professional Privilege in the Law of Negligence, Govt Printer, Wellington, 1977.
UNITED STATES
Federal
UNITED STATES FEDERAL RULES OF EVIDENCE, Transcript of Conference held at the Federal Judicial Centre, Washington DC (6-7 October 1983).
New York
STATE LAW REVISION COMMITTE, Proposed Code of Evidence for the State of New York, West Publishing, St Paul,1982.
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