Admissibility

I said earlier in this paper that I didn’t think that the flowchart in Chapter 3 quite captured the structure of the admissibility provisions. Really, my complaint is that it doesn’t quite show how important relevance is as a starting point.

It is good practice, for every matter, to sit down with a blank piece of paper, or word document (I prefer paper). You then build up a table like this (not to scale):

(Note that I've skipped a very important step here - you need to know, having looked at the evidence, what your case theory is.  All those elements in the left hand column might not be in issue. You might concede that the evidence establishes all those facts, but that it was not your guy. Then the only fact in issue is the identification of the perpetrator.)

Then, sort through the evidence in your brief, then your instructions, until you’ve got the evidence into the categories.

Then look at what you’ve got in those boxes. Why are they there? How does that evidence establish that element of the offence? When you’re trying to understand that, you’re looking at relevance.

Relevance

Here’s the highlights package of what s55(1) says about relevance:

The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

The key words are (not in the order in which they appear):

1. could
2. rationally affect ... probability
3. fact in issue

Translating those out of the language of the section, to plain English, they mean:

1. There is a low bar. The test isn't trying to predict what the jury will actually make of it, only what they could make of it
2. There is a logical connection between the evidence sought to be adduced, and a fact in issue (we're getting to that in a minute). How is the piece of evidence in question connected to a contested issue? It is essential to spell out that connection, because an articulation of the connection will lead you to understand which of (any why) the exclusionary rules for hearsay, tendency, credibility and opinion come into play. It is important to note that a single piece of evidence may have more than one connection to facts in issue in the trial. You should be able to articulate all the logical connections – they can be a secret door to getting hearsay or credibility evidence in; and they can have a cumulative effect on your argument for admissibility.
3. The connection must be to a fact in issue. That means a contested element of an offence, or a disputed paragraph in the pleadings. If a fact is not in issue, because there has been an admission, or an agreed fact, then tendering a document to prove that fact will not survive a challenge to its relevance.

Hearsay

We have an oral evidence tradition in our courts, and a great faith in the ability of cross examination to get at the truth. Because of that tradition, courts are guarded about out of court statements. With that in mind there are, two broad categories of hearsay:

• Documents
• Things not "heard, seen or otherwise perceived" by the witness giving evidence

It is worth stating that all documents are hearsay. That means, the starting point with a document is that it is first hand hearsay (or worse), and therefore inadmissible. Courts (and lawyers) tend to love documents, because they don’t change their evidence, and can’t be cross-­examined into irrelevance. But you need to start from the proposition that a document is inadmissible, and talk yourself through how it becomes admissible, articulating the logical connections which make it relevant either for a non-hearsay purpose, or for the purpose set out in an exclusion to the hearsay rule.

With witnesses, the key thing to look or listen out for is “told me”. Is what they “told me” supposed to establish that it is true? If so, it’s hearsay. For example, in the statement of an officer in charge of an investigation:

I left the male person who I now know to be Mr X with the custody manager, and completed my shift. When I arrived the next morning, the custody manager told me that the Mr X had become agitated when told he would be bail refused, and urinated in the dock.

That was the only evidence offered in support of a malicious damage charge. The custody manager had not given a statement, was not going to be called. And it was totally inadmissible. An easy win for the client, you might think. Also note the layering effect at work there – when the officer gives that evidence, it is first hand hearsay (“told me”). If the document were to be tendered, it would be hearsay upon hearsay – second hand hearsay.

With each step, the statement has less connection to oral testimony, less ability to be tested through cross examination, and is less likely to be admissible. In fact, one you get beyond first hand hearsay, then what you’ve got is basically inadmissible. That’s what Lee’s case  (Lee v The Queen [1998] HCA 60; 195 CLR 594) is all about.

Now you know hearsay is inadmissible, and why, you should keep in mind the main exceptions.

Exception: dual relevance

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

Exceptions: First hand hearsay

The two main exceptions in criminal proceedings depend on whether the maker of a statement is “available”. A person will be unavailable, according to the definition in the Dictionary (cl 4, Pt 2) where:

(a) the person is dead;
(b) the person is not competent to give evidence;
(c) the person is mentally or physically unable to give evidence;
(d) it would be unlawful for the person to give evidence;
(e) the Act prohibits the evidence being given;
(f) all reasonable steps have been taken to find the person or secure their attendance, without success; or
(g) all reasonable steps have been taken to compel the person to give evidence, but without success.

Maker unavailable

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

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

(a) the nature of the event concerned;
(b) the age and health of the person; and
(c) the period of time between the occurrence of the asserted fact and the making of the representation.

Maker available

Where the maker of the statement is available, the exception does not apply unless:

(a) the maker was under a duty to make it; or
(b) the representation was made when or shortly after and in circumstances that make it unlikely that it was a fabrication; or
(c) was made in circumstances that make it highly probable that the representation is reliable; or
(d) was an admission, made and made in circumstances that make it likely the representation is reliable.

Notice requirements

Notice requirements Section 67 imposes a notice requirement in respect of ss63, 64, and 65. The notice must be reasonable, which goes to the timing and content of the notice. See for example Puchalski v R [2007] NSWCCA 220, where it was held that the notice given 5 minutes before a hearing would not be reasonable.

However, where there has been a failure to comply with the notice requirement, the court may give leave to admit the evidence anyway: s67(4). In determining whether to grant leave, s192(2) matters must be taken into account: Stanoevski v R (2001) 202 CLR 115.  In particular, prejudice, expense and delay are likely to be relevant: Tsang Chi Ming v Uvanna Pty Ltd t/as North West Immigration Services (1996) 140 ALR 273.

Exception: Business records

“Business” is defined in cl 1 Pt 2 of the Dictionary, and should be construed widely. “Records” is not defined, but has been interpreted as meaning “a history of events that is not evanescent”: Barwick v English, Scottish and Australian Bank Ltd (1924) 34 CLR 99. Records of the business can be contrasted with “products” of the business, such as, for a publishing company, books and magazines (see Hansen Beverage).

s182 (in combination with s5) of the Cth Act extends the operation of the business records provisions to Commonwealth records.

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

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

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

Lay opinion

So what is an opinion? In Allstate Life Insurance Co v ANZ Banking Group Ltd (No 5) (1996) 64 FCR 73 at 75 it was described as an inference drawn or to be drawn from observed and communicable data. That draws a distinction between facts, and opinion. With that in mind, we turn to lay opinion. A lay opinion is generally inadmissible (s76), unless it is (s78):

(a) based on what the person saw, heard or otherwise perceived; or

(b) tied up in the witness’ perception of the event

You can see that distinction between facts and data here – although, as (b) suggests, sometimes the opinion is “tied up” in the perception of the event. Take the following examples of an observation by a bystander (not in the car):

• “The car was going really fast”
• “The car was doing 110km/h”
• “The car was doing 110 in 3rd gear”

The first probably falls within (b). The second might fall within (a), although you’d have to lead some evidence of their experience of driving, and speeds, to make it OK. The third, is probably going too far, and strays into expert evidence.

Expert opinion

There are basically three preconditions of admissibility in s79 which must be met before expert opinion can be admitted. They are:

That the person has specialised knowledge

That the specialised knowledge is based on training, study or experience

That the opinion is “wholly or substantially based” on that knowledge.

Usually the first two aren’t issues. The issues have turned around the third point. There are 3 big cases on this, HG, 9 Makita 10 and Dasreef. Read them late at night if you have trouble sleeping. For present purposes, discussion will be limited to the following potential grounds of objection:

(1) Expertise?

There are a couple of aspects to this. Expertise depends on specialised knowledge. In the US they talk about the reasoning or methodology is scientifically valid.

Also under this heading we have the ad hoc expert: see for example Leung. 11 That was where a police officer became an expert on voice identification on the basis of time spent listening to surveillance tapes.

(2) Within expertise?

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

(3) Exposed reasoning?

In the civil context, there are procedural preconditions to the admission of expert evidence contained in the Uniform Civil Procedure Rules (see Schedule 7), being the Expert Code of Conduct, which are designed to make transparent the process of reasoning from facts to conclusion: see HG v R per Gleeson CJ.

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

Tendency & coincidence

These were both known as similar fact evidence at common law. In some ways, that is a more helpful label, because it emphasises the importance of similarity. I’ll return to that in a moment. But first, let’s have a look at the schematics of both, in turn.

Tendency

Here’s the executive summary. If you say evidence is relevant in this way:

A person who does this, is likely to have done that

Then you’re talking about tendency evidence. s97 holds that tendency evidence is not admissible unless to conditions are met:

(1) reasonable notice in writing

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

(2) significant probative value

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

What constitutes significant probative value is not defined, although the term significant has been characterised as more than mere relevance, but less than substantial probative value. It has also been described as meaning important or of consequence: Lockyer.12

Once you’ve made it through s97, in criminal proceedings you have to then negotiate the s101 balancing act. It is necessary to demonstrate that the probative value of the evidence substantially outweighs its prejudicial effect. The latter terms has the same meaning as "unfair prejudice" in s137, and turns on the real risk of misuse of the evidence by the jury: BD. 13 An example would be that the jury might punish the accused for uncharged tendency acts, by convicting them of the charged offence.

Coincidence

Again, an executive summary of when relevance is based on coincidence reasoning:

It can’t be a coincidence that both these things happened.

Here’s a simple example. Two facts:

• Bank robbery, robber shot
• Hospital records show the accused was treated for gunshot wound that day

As with tendency, it is the degree of connection, or the “similarity” which will be important.

The same hurdles, samely, substantial probative value (s98) and then the probative value vs unfair prejudice balancing test (s101) apply.

Credibility

Generally inadmissible (s102) BUT Can rebut denials: s106 Beware the character shield: s104(4)

Privilege

Client legal privilege

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

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

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

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

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

Sexual assault communications privilege

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

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

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

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

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

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

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

s299C sets out various notice requirements.

Exceptions are provided.

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

Self incrimination privilege

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

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

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

Settlement negotiation privilege

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

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

A number of exceptions limit the operation of the privilege:

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

Identification evidence

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

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

• an identification parade, including the defendant, was held before the identification was made; or

• it was not reasonable to have such a parade; or

• the defendant refused to take part in such a parade.

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

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

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

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

Discretions

Section 137 - unfairness

In criminal proceedings, this is the go-to discretion. As noted above in relation to tendency and coincidence evidence, it is a balancing act. On one hand, the probative value (so you need to understand and assess the evidence’s relevance).

On the other hand, unfair prejudice – which requires you to think about how the evidence might be used improperly. It is not unfair prejudice because it might result in your client’s conviction.

Section 138 - improperly obtained evidence

This provision is given a workout in the context of admissions, usually in circumstances where an admission is made as a result of misrepresentation, trickery or mistaken assumptions. As a result there is an overlap with the following provisions:

• a failure to tape record admissions made in the course of official questioning (s281 Criminal Procedure Act (NSW))
• admissions unfair in all circumstances (s90; Em’s case)

As with s137, it is a balancing act. Ts138(1) says the evidence is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in that way.

Unreliable evidence

As a backup plan, if you can’t get something kicked out, you might like to see whether you can have it watered down. Where evidence is of a kind listed in s165(1), namely:

(a) hearsay or admissions;

(b) identification evidence;

(c) age, ill health or injury of the witness;

(d) criminally concerned

(e) prison informer

(f) unadopted questioning

(g) deceased estate by person seeking relief

and at the request of a party, the judge must direct the jury in the terms set out in s165(3). This warning must (a) note that the evidence is of a kind that may be unreliable; (b) inform the jury as to the matters that may cause the unreliability; and (c) the need for caution in accepting the evidence, and in determining its weight.

s165(5) covers traditional common law warnings, such as the Murray/Ewen direction (a subject which probably requires its own post); and the Edwards direction.

Of course, in the Local Court, you can ask a magistrate to direct themselves.