Section 13 Competence – lack of capacity

In respect of the question whether a witness does not have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence, Kaye and Weinberg JJA in the Victorian Court of Appeal emphasised in Seymour v The Queen [2020] VSCA 113 at [54] and [57] that “an obligation necessarily involves the assumption by the obligor of a relevant binding duty” and that the issue is whether the child had “the capacity to understand that, by making an affirmation to tell the truth, she thereby made a solemn binding commitment by which she was bound to give truthful evidence”. They held at [65]–[69] that evidence that a child stated in a police interview that she understood that she would “get in trouble” if she told lies to the police during the interview demonstrated that she “had a clear understanding of the consequences to her if she did not tell the truth” and supported a conclusion that she “had demonstrated that she had the capacity to understand that, in giving evidence [at trial] she was under an obligation to give truthful evidence” (for the purposes of s 13(3)). Kaye and Weinberg JJA stated in Seymour v The Queen [2020] VSCA 113 at [74]:

While the assessment, that the judge had to make, preceded the cross-examination of [the witness], nevertheless, on appeal, the issue of the competency of a particular witness may be informed by the subsequent performance of that witness under oath or affirmation. For example, if a witness, having initially appeared to understand that he or she was under such an obligation, nevertheless conducted himself or herself in the course of cross-examination in a manner that demonstrated a lack of understanding of the binding nature of the oath or affirmation, such conduct would necessarily be relevant to the question whether that witness had the capacity to understand that he or she was under an obligation to give truthful evidence, and thus would inform the question whether, in the upshot, that person was competent to give sworn evidence. Conversely, and equally, the conduct of a particular witness in cross-examination, after giving an oath or making an affirmation, may logically be relevant to an assessment of the question whether that witness was correctly found by the trial judge to be competent to give such evidence.

Section 18 Compellability of spouses and others in criminal proceedings generally

That a person may have a right to make an objection under this section may only become apparent when the person has given some evidence as a witness: Jurd v The Queen [2020] NSWCCA 91 at [71]–[72]. In a jury trial, the jury should be asked by the judge to retire so that the judge could hear evidence in their absence to determine if the person was a person who may have a right under the section to make an objection: Jurd v The Queen [2020] NSWCCA 91 at [72]. Where the court only becomes aware that a person may have a right to make an objection under this section after the person has given evidence as a witness, it is doubtful that this provision can have retrospective operation: Jurd v The Queen [2020] NSWCCA 91 at [82]–[87]. However, it may be noted that the NSW Court of Criminal Appeal nonetheless held that the trial judge erred in failing to apply the provision because the trial judge should have been aware that the witness may have a right to make an objection under this section at an early stage of the witness giving evidence.

Section 78 Exception – lay opinions

In Petch v The Queen [2020] NSWCCA 133, Hamill J (Hoeben CJ at CL and Cavanagh J agreeing) expressed the view at [70] that “the approach taken by Simpson J in R v Whyte was correct”. In R v Whyte [2006] NSWCCA 75, the appellant had been charged with detaining a victim with intent to have sexual intercourse with her. The issue on appeal was whether evidence that the victim had told her mother “a man tried to rape me” could be used to prove that the appellant had in fact intended to have sexual intercourse with her. Spigelman CJ held that the evidence was admissible hearsay and that, while the opinion rule was applicable, the exception in s 78 applied, notwithstanding the fact that no attempt had been made by the prosecution to establish that it was “necessary” for the victim to express this opinion in order to provide an “adequate account or understanding” of her perception of the “matter or event”. Simpson J also accepted that the evidence was caught by the opinion rule but held that s 78 did not apply. Simpson J held at [57] that the second requirement of s 78 was not met: “Evidence of the complainant’s opinion is not necessary to obtain (or to give the jury) an adequate account or understanding of her perception of the matters and events in question”. As Simpson J explained (in a different context) at [53], what “she said was, properly characterised, her conclusion, drawn from the conduct she observed, of what was in the appellant’s mind”. In Petch v The Queen [2020] NSWCCA 133, Hamill J (Hoeben CJ at CL and Cavanagh J agreeing) held at [86]–[87] that the relevant “matter or event” was a conversation and interaction between two persons and while one of the persons could give evidence of what was said and done, an opinion as to the other person’s intention or state of mind was not an opinion based on what the person “saw, heard or otherwise perceived” because it was not formed

by reference to her five senses of sight, hearing, smell, taste or touch. Rather, it was an inference she drew from … all of the circumstances including the issues then confronting the Council, her knowledge of, and relationship with [the other person], and her understanding of his personal and pecuniary interests.

Equally, the evidence of her opinion was not necessary to obtain an understanding of her “perception of the matter or event”, since there “was no confusion in her evidence about what was said in the conversation, the change in the [other person’s] demeanour, or the tone in which things were said” (at [88]).

Section 81 Hearsay and opinion rules – exception for admissions and related representations

In Nguyen v The Queen [2020] HCA 23, Kiefel CJ, Bell, Gageler, Keane and Gordon JJ discussed “mixed statements” made by a defendant in a criminal trial (to the police in a record of interview) and stated at [22]:

It is to be expected that exculpatory statements made in a record of interview which also contains admissions will usually satisfy the requirements of s 81(2)(a) and (b). In the event that there is some doubt about the connection between an exculpatory statement and an admission, it should be borne in mind that what is to be made of a mixed statement is a matter for the jury, which might attach different degrees of credit to different parts of it. It has been observed that, under the Uniform Evidence Acts, provided relevant evidence is rationally capable of acceptance, questions of credibility and reliability are to be seen as squarely within the province of the jury. Considerations of this kind suggest that no narrow approach should be taken to the relationship between exculpatory statements and admissions.

In the same case, Edelman J agreed at [58] that “[t]he context contemplated by s 81(2) is broad”. However, Kiefel CJ, Bell, Gageler, Keane and Gordon JJ contemplated (at [43]) that circumstances might arise where evidence of a “mixed statement” might not meet the requirements of this provision but there was nevertheless a prosecutorial duty to adduce the evidence. Kiefel CJ, Bell, Gageler, Keane and Gordon JJ observed at [36] that there is a duty on the prosecution to present “all available, cogent and admissible evidence” and this would extend to a mixed statement even if it was inconsistent with the prosecution case, so long as it is not “clear to demonstration that it is false, as where it is contradicted by other, objective evidence”. Kiefel CJ, Bell, Gageler, Keane and Gordon JJ contemplated (at [43]) that circumstances might arise where evidence that does “not meet the requirements of s 81(2)” may still be admitted if the defendant consents to the court dispensing with the application of the hearsay rule pursuant to s 190(1). It was noted at [24]:

Howsoever mixed statements come to be admitted into evidence they are invariably subject to a direction to the jury that they may give less weight to exculpatory assertions than to admissions and that it is for them to decide what weight is to be given to a particular statement. The rationale for the direction is that exculpatory statements are not statements made against interest, are not made on oath and are not subject to cross-examination.

Section 97 The tendency rule

In Vagg v The Queen [2020] NSWCCA 134, Simpson AJA (Rothman and N Adams JJ agreeing) held at [76] that “[i]n circumstances that allow for some doubt whether the person to whom the complainant attributed the offending behaviour was in fact the applicant, evidence that showed that he was a person who had a sexual interest in young girls” did have significant probative value “in the determination of whether he was the person who committed the offences against the complainant” notwithstanding an earlier acceptance (at [73]) that “the allegations were of conduct in some respects substantially different in nature from the conduct the subject of the allegations made by the complainant”. It is not entirely clear whether the fact that this was a case where “perhaps unusually, both identity and the fact of the commission of the offences were in issue” (at [50]) was significant in that decision (see also at [98]).

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

In Aleski v The Queen [2020] VSCA 124, the Victorian Court of Appeal accepted that evidence of relationship (from an independent source) had “some” probative value (at [65]) and concluded that “there was no real risk that the jury would engage in impermissible tendency reasoning or unfairly give the evidence more weight than it was rationally capable of having” (at [66]).

Section 110 Evidence about character of an accused

• Where evidence is adduced to prove that the defendant is (generally or in a particular respect) a person of good character, the prosecution must be permitted to test and challenge that evidence, so long as the legitimate use of such evidence is not improperly undermined: see, for example, FB v The Queen [2020] NSWCCA 137 at [375]–[378].
• If evidence is admitted adduced under s 110(2) or (3) for the limited use of negating good character, a jury usually should be so directed: FB v The Queen [2020] NSWCCA 137 at [403].
• However, there will be cases where the giving of such a direction is not necessary in the particular circumstances: see Hamilton v The Queen [2020] NSWCCA 80 at [113]; FB v The Queen [2020] NSWCCA 137 at [50]–[64],[403]–[405].

Section 125 Loss of client legal privilege — misconduct

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

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

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

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

Lee J added at [97]:

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

Lee J (Stewart J agreeing) noted a number of considerations bearing on “the interest of justice”:

• “the relevant curial context being, as it is in the present case, an affidavit said to be ancillary to an asset preservation order” (at [77]); “a time post-judgment and when other procedures are available to obtain information relevant to enforcement of the judgment” (at [111]); “the order is ancillary to a freezing order and the purpose of the freezing order is to assist and protect the use of methods of execution but is no substitute for them” (at [111]);
• “the ‘fundamental and … important’ nature of the privilege ([Reid v Howard (1995) 184 CLR 1; 83 A Crim R 288; [1995] HCA 40 at 17 (CLR)])” (at [77]); 
• the “likely importance” of the evidence “to the resolution of an issue in dispute” (at [96]);
• the ability, or otherwise, to “obtain the information by means of other evidence adduced or to be adduced at the hearing” (at [96]); in this case, there were “other available ways that execution could be assisted”, where “questions could be framed to obtain information as to assets in a direct way, thus avoiding, to the extent possible, questions which called for answers trespassing on potentially privileged information” (at [104]–[107]); and
• “the consequences of requiring disclosure” (at [77]) – “this assessment will also necessarily involve recognition that an order for disclosure must be attended by the provision of a certificate pursuant to s 128A(7)” (at [77]); “the risk the information could be used in or in relation to the accusatorial process of criminal justice” (at [111]).

Lee J emphasised at [95] (see also at [111]) that “[r]equire is a strong word and although ‘interests of justice’ is a broad concept, it is not enough, for example, in the s 128 context, that the evidence in question be relevant – a ‘relatively high standard of satisfaction’ is required given that the legislation abrogates a basic common law right significantly: Gedeon (at 324 [286])”. The reference to “Gedeon” is to Gedeon v The Queen (2013) 280 FLR 275; [2013] NSWCCA 257 where Bathurst CJ (at [286], with whom Beazley P, Hoeben CJ at CL, Blanch and Price JJ agreed) observed that the same language in s 128(4)(b) indicates that it “is not enough that the evidence be relevant” and “the relatively high standard of satisfaction is consistent with the fact that the legislation to a significant extent abrogates a basic common law right”. Lee J (Stewart J agreeing) concluded that, in the circumstances of the case, the interests of justice did not require the information to be disclosed. It may be noted that s 128A(6) provides that the court “may make an order requiring the whole or any part of the privilege affidavit containing information of the kind referred to in paragraph (a) to be filed and served on the parties” (emphasis added). As Lee J (Stewart J agreeing) noted in Deputy Commissioner of Taxation v Shi [2020] FCAFC 100 at [86]:

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

Section 137 Exclusion of prejudicial evidence in criminal proceedings

The Victorian Court of Appeal considered that the fact that a letter making allegations against the defendant (which he admitted to be true) was lost did not mean that there was unfair prejudice to the defendant, because there was considerable evidence regarding the likely contents of the letter (relating the contents to the offence charged) and the defence could rely on the absence of the letter in undercutting the evidence of the alleged admission: Barrow v The Queen [2020] VSCA 102 at [27]–[33].

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