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July 2017

• Section 27 Parties may question witnesses
• Section 46 Leave to recall witnesses
• Section 97 The tendency rule
• Section 101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution
• Section 103 Exception – cross-examination as to credibility
• Section 108A Admissibility of evidence of credibility of person who has made a previous representation
• Section 131 Exclusion of evidence of settlement negotiations
• Section 165 Unreliable evidence

Updated 5 July 2017

Section 27 Parties may question witnesses

The NSW Court of Criminal Appeal has made it clear in Tootle v The Queen [2017] NSWCCA 103 that the same limitations on questioning by a judge (see [EA.27.120]) apply to questioning by a jury and that a jury should not be encouraged or invited to ask questions.

Section 46 Leave to recall witnesses

The parties “cannot by an agreement to which the court has acquiesced, authorise a course which denies elementary procedural fairness to a witness”: SAMM Property Holdings Pty Ltd v Shaye Properties Pty Ltd [2017] NSWCA 132 per McColl JA at [138] (Gleeson JA and Sackville AJA agreeing), quoting New South Wales v Hunt (2014) 86 NSWLR 226; [2014] NSWCA 47, per Leeming JA at [43]. Even when there has been an exchange of affidavits or statements, the rule will require a cross-examining counsel to put to a witness the implications which counsel proposes to submit can be drawn from the evidence, if those implications are not obvious from the evidence, or from other pre-trial procedures, or the course of the case: SAMM Property Holdings Pty Ltd v Shaye Properties Pty Ltd [2017] NSWCA 132, per McColl JA at [139] (Gleeson JA and Sackville AJA agreeing).

Section 97 The tendency rule

In Hughes v The Queen [2017] HCA 20 the High Court has provided guidance regarding the requirement of “significant probative value”. Kiefel CJ, Bell, Keane and Edelman JJ, in a majority judgment, emphasised that the focus must be on, firstly, the strength of the inference that can be drawn from the conduct to the tendency of the person to have a particular state of mind or to act in a particular way, and, secondly, the extent to which that tendency increases the likelihood that a fact in issue did, or did not, occur. As the majority stated at [40]:

[I]t is not necessary that the disputed evidence has this effect by itself.  It is sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged. [emphasis in original]

A tendency expressed at a high level of generality might mean that all the tendency evidence provides significant support for that tendency.  But it will also mean that the tendency cannot establish anything more than relevance.  In contrast, a tendency expressed at a level of particularity will be more likely to be significant. It follows that a tendency to commit crimes of the type with which a defendant is charged will not, by itself, satisfy the test of significant probative value.  Thus, for example, with respect to trials of child sexual offences, it is apparent that the mere fact that the tendency evidence shows a person who is sexually interested in children and who has a tendency to act on that interest will not satisfy the requirement of significant probative value, notwithstanding that it is “unusual as a matter of ordinary human experience”. However, this provision does not import the stringency of the common law rules in respect of “similar fact” evidence adduced by the prosecution against a defendant. Further, considerations of “fairness” to a defendant in criminal proceedings, which was an important aspect of those common law principles, is not a material consideration in the application of this provision. Rather, as Kiefel CJ, Bell, Keane and Edelman JJ stated at [32]:

In criminal proceedings, the risk that the admission of tendency evidence may work unfairness to the accused is addressed by s 101(2).

Similarities in the conduct, or the circumstances in which the conduct occurred, will be relevant to whether the tendency evidence has significant probative value. However, while the common law required “similarity”, that will not be a pre-condition to the test under this provision. It follows that common law language such as “underlying unity”, “pattern of conduct” or “modus operandi” is potentially misleading. It was concluded in Hughes v The Queen [2017] HCA 20 that, in a trial of child sexual offences, where the alleged conduct showed that the defendant was “a man of mature years [with] a sexual interest in female children aged under 16 years”, “[t]he evidence as a whole was capable of proving that the [defendant] was a person with a tendency to engage in sexually predatory conduct with underage girls as and when an opportunity presented itself in order to obtain fleeting gratification, notwithstanding the high risk of detection” (at [56]). This “level of disinhibited disregard of the risk of discovery by other adults [was] even more unusual as a matter of ordinary human experience” (at [57]) than a tendency to act on a sexual interest in children. The fact that the appellant’s sexual interest in underage girls was expressed “in a variety of ways did not deprive proof of the tendency of its significant probative value” (at [63]). The tendency was “expressed at a level of particularity” sufficient to give the tendency significance in “mak[ing] more likely the elements of the offence charged” (at [64]).

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

• In Hughes v The Queen [2017] HCA 20, Kiefel CJ, Bell, Keane and Edelman JJ stated at [17]:

The reception of tendency evidence in a criminal trial may occasion prejudice in a number of ways.  The jury may fail to allow that a person who has a tendency to have a particular state of mind, or to act in a particular way, may not have had that state of mind, or may not have acted in that way, on the occasion in issue.  Or the jury may underestimate the number of persons who share the tendency to have that state of mind or to act in that way.  In either case the tendency evidence may be given disproportionate weight.  In addition to the risks arising from tendency reasoning, there is the risk that the assessment of whether the prosecution has discharged its onus may be clouded by the jury’s emotional response to the tendency evidence.  And prejudice may be occasioned by requiring an accused to answer a raft of uncharged conduct stretching back, perhaps, over many years.

• As regards the effectiveness of judicial direction to juries designed to minimise potential prejudice to a defendant from tendency evidence, much will depend on the particular danger of prejudice involved. Thus, for example, directions about the sequential process of reasoning a jury must apply in relation to tendency evidence may be readily capable of being understood and applied, in contrast with directions designed to meet a concern about evidence being of such a nature that it might divert the jury from a proper consideration of the evidence: see Clegg v The Queen [2015] NSWCCA 49, per R A Hulme J at [83].

Section 103 Exception – cross-examination as to credibility

In Fletcher v The Queen (2015) 45 VR 634; [2015] VSCA 146, Dixon AJA at [94]–[95] (Weinberg and Priest JJA agreeing) held that evidence that a person (whose credibility was in issue) “[was] scared” of the applicant was “no more than an assertion of the applicant’s bad character” and could not rationally affect the assessment of the probability that what the person said she saw and heard was true.

Section 108A Admissibility of evidence of credibility of person who has made a previous representation

In Fletcher v The Queen (2015) 45 VR 634; [2015] VSCA 146, Dixon AJA at [94]–[95] (Weinberg and Priest JJA agreeing) held that evidence that a person (whose previous representation had been admitted in the proceeding and would not be called to give evidence in the proceeding) “[was] scared” of the applicant was “no more than an assertion of the applicant’s bad character” and could not rationally affect the assessment of the probability that what the person said she saw and heard was true.

Section 131 Exclusion of evidence of settlement negotiations

In Slea Pty Ltd v Connective Services Pty Ltd [2017] VSC 232, the Supreme Court of Victoria held that a statement by a solicitor that “I need to ring my client for instructions” is neither objective nor a neutral statement of fact – it is a communication which includes qualitative and subjective elements and was made “in connection with” an attempt to negotiate a settlement of the dispute. The words “in connection with” are to be construed broadly. To overly dissect or disaggregate statements made at a negotiation to determine whether particular statements were made in connection with an attempt to negotiate a settlement would undermine the purpose behind the privilege. Context is crucial.

Section 165 Unreliable evidence

The Victorian Court of Appeal has concluded that “[t]he question” is whether the factors relied upon to show unreliability “were such as to have rendered the evidence … unreliable in a manner which might not be fully or sufficiently appreciated by the jury, in the absence of an appropriate judicial direction to that effect”: Hudson (a Pseudonym) v The Queen [2017] VSCA 122, at [52]. This observation was made in respect of s 165, although the case involved the application of the Jury Directions Act 2015 (Vic). In making that assessment, the factors must be considered in combination: Hudson (a Pseudonym) v The Queen [2017] VSCA 122, at [56], [61].

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