Part B: Evidence

1/. Relevance

• the offence is a serious indictable offence;
• a 'special caution' was given (that the person does not have to say anything, and anything the person says or does may be used in evidence, but it may harm the person's defence if the person does not mention it and later seeks to rely upon it later in court)
• the 'special caution' was given in the presence of an Australian legal practitioner and
• the defendant had the opportunity to speak to the Australian legal practitioner in the absence of the investigating official about the general nature and effect of special cautions

Silence in the presence of an accusation by a civilian

Silence of an accused in the face of an accusation by a non-policeman may constitute adoption: Parkes [1971] 1 WLR 1251. Use of silence in such circumstances may require a direction that the jury must be able to exclude any rational explanation consistent with innocence before silence is used as evidence of guilt: McKey v Regina [2012] NSWCCA 1 esp at para [42].

Selective Answering.
If a suspect selectively answers questions, his answers may still not be admissible: s. 89 Evidence Act, Woon at 535 (Kitto), 341 (Windeyer). Selective answers are not consciousness of guilt: s. 89(1) Evidence Act, Towers (NSW CCA 7/6/93, (1993) PD [208], Tolmie (CCA u/r 14/7/93), Matthews (NSW CCA u/r 18/7/96).

Hearsay Admissions.
An accused can make an admission about a fact that might otherwise be thought to be outside his knowledge but its probative value depends upon the source of the accused's knowledge. For example, an admission that white powder is cocaine may be admissible to show that the substance is cocaine if the accused is shown to have knowledge of the substance: Anglim and Cooke v Thomas [1974] VR 363, Porter v Fitzpatrick (1987) 7 PSR 3487.

Equivocality
An equivocal statement ( e.g. 'He has dobbed us all in') is not an admission: Doolan [1962] Qd R 449.

Co-Accused.
Normally a confession is only admissible against its maker, unless the defence consents: s. 83 Evidence Act, Shannon [1975] AC 717 at 768, The Queen v Grills (1910) 11 CLR 400. This does not apply to identically false alibis: Khan [1967] 1 AC 454, Boykevski (1991) 58 A Crim R 426.

A plea of guilty by a co-accused is not admissible against the accused, and should be done in the absence of the jury panel: Velardi (NSW CCA 24/5/1996). However, if the co-accused pleads guilty during the course of the trial, if the jury is directed not to take that plea into account, no viable ground of appeal may arise: Humphries v Regina [2015] NSWCCA 319 esp at para [114].

Co-conspirator's Rule.
Statements made by a co-conspirator in furtherance of the conspiracy are admissible: s. 87 Evidence Act, Tripodi (1961) 104 CLR 1. As to this see Part A, Chapter 11, 'Attempt, Conspiracy and Complicity'.

Adoption of another's statement.

It will not be a misdirection not to give this direction, especially if it is not asked for: Douglas [2005] NSWCCA 419.

If the lie is put to the jury as an implied admission or as corroboration, the special directions referred to in Edwards v The Queen (1993) 178 CLR 193,68 ALJR 40, (1993) 68 A Crim R 349 should be given: Renzella [1997] 2 VR 88 (Victorian CCA), Lee (NSW CCA u/r 19/6/97). A 'consciousness of guilt' direction on lies is only required if it is necessary to ensure a fair trial: Gall v Regina [2015] NSWCCA 69 esp at para [87]. For a lie of an accused to amount to an admission, the only reasonable inference must be that the accused lied because he knew that if he told the truth he would be found guilty. The lie must relate to something which directly links the accused with the crime charged: ST (1997) 92 A Crim R 390.

The Edwards direction is only necessary to be given in relation to an asserted lie where the prosecution relies on that asserted lie as evidence of consciousness of guilt: Decision Restricted [2020] NSWCCA 247 esp at paras [59] and [60]. Where the Crown relies on evidence of lies by the accused as evidence of his consciousness of guilt, the trial judge should give the Edwards direction even if counsel for the accused opposes it: DC v Regina [2019] NSWCCA 234.

Lies may be treated as an adoption of a statement if they show consciousness of guilt: Woon v The Queen (1964) 109 CLR 529.

A lie of an accused person can corroborate a witness's evidence if:

'There may be cases where an accused goes to such lengths to conceal the death or to distance himself or herself from it as to provide a basis on which the jury might conclude that the accused had committed an extremely serious crime and so warrant a conclusion beyond reasonable doubt as to the responsibility of the accused for the death and the concurrent existence in the accused of the intent necessary for murder.There is no hard and fast rule that evidence of post-offence concealment and lies is always intractably neutral as between murder and manslaughter.' 

Recently, the Court of Criminal Appeal allowed a conviction appeal in a murder case where flight was led as evidence of consciousness of guilt because the evidence was 'intractably neutral' as to whether flight was motivated by consciousness of guilt of murder or another offence: Meakin v Regina [2018] NSWCCA 288 esp at paras [136] to [137].

McColl JA and Simpson also said that they would not readily find that a complainant making a telephone call to a suspect, who had not been charged, and who had not exercised his right to silence, as a 'state agent' (at para [71]). Such phone calls are sometimes referred to as 'pretext' phone calls.

This approach was followed in Regina v Burton [2013] NSWCCA 335 and Regina v DRF [2015] NSWCCA 181.

• did an act or omission which he knew or ought to have known would substantially impair the ability of the suspect to answer the question or
• made a false statement where the questioner knew or ought to have known it was false, and that it was likely to cause the suspect to make an admission: s. 138(2) Evidence Act.
  
  

Failure to Caution


A statement is obtained improperly if the person questioned was not cautioned in a language the person could communicate in with reasonable fluency, the questioner had the power to arrest him, and

Where an accused has given evidence under compulsion at a Crime Commission

Where an accused has given evidence about an offence of which he/she is suspected under compulsory examination at the Crime Commission, it appears that evidence obtained on the basis of what the accused says cannot be called in his trial. It has been held that if the prosecution team has had access to the evidence of the accused, a verdict of guilty has been compromised: Lee v The Queen [2014] HCA 20 esp at para [51]. It also appears that a witness who was present during his/her evidence cannot be called by the Crown: Regina v Seller & McCarthy [2015] NSWCCA 76, esp at paras [123] (per Bathurst CJ), para [228] (per Fullerton J), and at para [243] (per Bellew J).

Other Grounds of Discretionary Rejection.
Other grounds of discretionary rejection include:

Mental Health.
Having mental illness or developmentally disability does not necessarily mean the confession will be excluded but it may go to the exercise of discretion. The judge should give directions to the jury about the dangers of convicting on the basis of such a confession: Parker (1990) 19 NSWLR 177.

Aboriginals.
Guidelines for interviewing Tribal Aboriginals are found in Anunga (1976) 11 ALR 412. The guidelines are not immutable: Gudabi (1984) 1 FCR 187.

d. Verbals, ROIs, etc

Verbals.
This provision only applies to verbals after 1/9/95.

An oral admission is not admissible unless:

'Reasonable excuse' includes a refusal by the accused to go on video. The High Court has indicated that 'reasonable excuse' includes the situation where in the course of an interview the police turn the video and tape recorder off at the request of the suspect: Nicholls and Coates v The Queen [2005] 219 CLR 196. It does not include the fact that the police had no reason to suspect that the defendant had committed the particular crime to which the admission relates: DPP v Rowe (2001) 50 NSWLR 510, 118 A Crim R 421.

Rather worryingly, it has been held that in a case where the defendant refused to be interviewed at all, the trial judge was entitled to find that there was a reasonable excuse: Moussa [2001] NSWCCA 427 and Doklu v Regina [2010] NSWCCA 309. This seems not to apply if the defendant refuses to go on an video taped interview, but is not asked if he will take part in an interview on a tape-recording: Schiavini (1999) 108 A Crim R 161.

The prohibition only applies where (s. 281(1):

(Derbas (1993) 66 A Crim R 327 at 334). It is not clear the extent to which a McKinney direction has been replaced by s. 165 of the Evidence Act: Lowe (1997) 98 A Crim R 300.

Corroboration is corroboration of the confession, not guilt (eg not another confession): Asfour (1992) 60 A Crim R 409, Goonan (1993) 69 A Crim R 339.

The direction should refer to the relevant facts in the case, for example, if the admission was not recorded in a notebook this should be referred to: Hindmarsh (NSW CCA 5/5/97).

The jury should never be directed that they have to decide whether or not the police are lying, only if that is a reasonable possibility: Tarantino (1993) 67 A Crim R 3.

An uncorroborated confession can found a conviction even in the absence of other evidence: McKay v The King (1935) 54 CLR 1.

(e) the Voir Dire

Disputed Confessions.
Where the accused says that no admissions were made but that any admission should be excluded there may be a voir dire, but not where the only issue is whether there was any admission or not: MacPherson v The Queen (1981) 147 CLR 512, Ajodha [1982] AC 204.

The Voir Dire.
The burden of proof is on the balance of probabilities: s. 142 Evidence Act, Wendo v The Queen (1963) 109 CLR 559. Where voluntariness is in dispute the onus is on the Crown; where discretion is in dispute, the onus is on the accused: Bodsworth [1968] 2 NSWLR 132, MacPherson. The Crown must call witnesses who may be cross-examined, unless the defence consents: Dixon v McCarthy [1975] 1 NSWLR. The accused cannot be asked if the statements in the admission were true: s. 189(3) Evidence Act, Wong Kam-Ming [1980] AC 247, Brophy [1982] AC 476. A question of admissibility should normally be determined in the absence of the jury: s. 189(4) Evidence Act, overruling Anderson (1929) 21 Cr App R 178.

(f) Confessions of Children.

Presence of an Adult.
Generally a confession or statement of a child a party to criminal proceedings allegedly made while the person was a child (including committals) will not be admissible unless it was made in the presence of

In The Queen v Bauer (A Pseudonym) [2018] HCA 40, (2018) 266 CLR 56 the High Court accepted the proposition that memories of sexual assaults may remain fresh in the memory for many years (at para [89]).

It has been held that, where a witness is giving evidence of 'recognition', the requirement of 'freshness' is made out by the continuing familiarity with the person, and that evidence of a prior act of identification will be admissible as a prior consistent statement if the witness does not come up to proof: Gee (2000) 113 A Crim R 376. This interpretation appears to be a gloss on the Evidence Act which is inconsistent with the express definition of identification evidence and the requirements of s. 66(2), which requires the occurrence of the asserted fact and not the appearance of the defendant to be 'fresh' in the mind of the witness. Where the identifying witness does not have a continuing familiarity with the witness, it has been held that the identifying witness may not give evidence of a prior act of identification unless it was made at a time when the events were fresh in the witness' memory: Taousanis [2001] NSWSC 74, but see DPP v Nicholls (2001) 123 A Crim R 66.


Voice Identification.
In NSW at common law voice identification was only admissible if either

In Shepherd v The Queen (1990) 170 CLR the High Court distinguished between intermediate circumstantial facts which are essential links in the chain of reasoning leading to an inference of guilt (on the one hand), and intermediate circumstantial facts which are like strands in a cable, so that individual strands of evidence are not essential (on the other hand). Only when a piece of evidence is an essential link in the chain of reasoning is a direction required that that fact must be proved beyond reasonable doubt (see esp Dawson J at para [5]). McHugh J said that the more there were facts relied upon to establish guilt, the less likely it was that a particular fact would be an essential intermediate fact (at p. 593).

In Davidson v Regina (2009) 75 NSWLR 150 Simpson J said that whether an intermediate circumstantial fact is essential can be tested by asking whether or not, in the absence of that intermediate fact, there would be a case to go to the jury (at para [74]).

Inadequacy of Motive.
It is erroneous to direct a jury that absence of motive is irrelevant: Regina v O'Donohue [2001] NSWCCA 458. Lack of motive has been said to be of little weight: Shaw (1917) 34 WN 150.

Proof of Motive.
It was held that motive must be proved beyond reasonable doubt: Murphy (1985) 4 NSWLR 42. It is not clear if this is still the law subsequent to Shepherd. However the High Court in Penney v The Queen (1998) 72 ALJR 1316 esp at para [26], assumed that it still had to be proved beyond reasonable doubt. This statement was doubted by the NSW CCA in Pantoja (NSW CCA 5/11/98), (1998) 5 Crim LN [939].

Items found in a mobile phone

Relevant images (for example images of terrorist acts found in an accused's mobile phone in a terrorism case) will generally be admissible on the basis that it is reasonable to assume that the owner of the phone has viewed them: Elomar v Regina [2014] NSWCCA 303 at paras [440] to [442].

Implements.
Implements which might have been used in the crime are admissible, but not tools of crime not used in the particular crime: Thomson and Wran (1968) 117 CLR 313.

Competence and Compellability
Most witnesses are competent and compellable to give evidence.
Competent: they can be called to give evidence.
Compellable: they can be compelled to answer questions.

The crucial question is whether or not the person is capable of understanding that he is under an obligation to give truthful evidence: s. 13(1) Evidence Act. There is a presumption that a person is competent: s. 13(5) Evidence Act. The matter should be determined by the judge in the absence of the jury: s. 189(4) Evidence Act, Demirok v The Queen (1977) 137 CLR 20. The issue is determined on the balance of probabilities: RA v Regina (2007) 175 A Crim R 221. Where a child is called to give evidence and the child's record of interview is tendered as the evidence in chief, it appears that the issue is whether the child is competent at the time the child gives evidence, not at the time of the record of interview: RA v Regina (2007) 175 A Crim R 221.

Heads of State, Judges and Jurors
Heads of state ( the King, the Queen, Governors General, Governors, etc) can't be compelled to give evidence (s. 15 Evidence Act). Nor can members of Parliament if giving evidence would prevent the MP from attending Parliament (s. 15). Judges and jurors in a particular court proceeding are not compellable to give evidence in that proceeding: s. 16 Evidence Act, Regina v Potier [2011] NSWCCA 336.

Protection of Witnesses.
Witnesses have civil immunity in relation to statements they make in the witness box: Cabassi v Vila (1940) 64 CLR 130.

Mental Illness.
A person suffering from a mental illness may give evidence if he appears to understand the nature of the oath. Expert medical evidence is admissible: Toohey v Metropolitan Police Commissioner [1965] AC 595 .

Unsworn Evidence.
A person (in practice particularly children) not competent to give sworn evidence is competent to give unsworn evidence if:

If a witness is a person who has the right to make a claim for this privilege, the court is required to satisfy itself that the witness is aware of the effect of the provision: s. 18 (4) Evidence Act. This advice must be given before the witness gives evidence: Jurd v Regina [2020] NSWCCA 91 .

Section 128 does not extend protection to evidence given by an accused of conduct which does not directly prove the commission of the offence charged but from which the commission of the crime could be inferred: s. 128(10), Cornwell v Regina (2007) 81 ALJR 840 esp at para [84]. It normally will not apply to questions asked in evidence in chief of a party to the proceedings (i.e. by the witess's counsel): Song v Ying [2010] NSWCA 237.

A s. 128 certificate does not apply in favour of an accused who is giving evidence in a retrial: s. 128(9).

The judge should tell the witness that if he need not give the evidence unless he is directed to do so, and that the court will give the witness a certificate preventing the evidence given being used against him (s. 128(3) ). This does not apply to corporations: Caltex v SPCC (1993) 178 CLR 477, 68 ALJR 127, Pyneboard Pty Ltd v TPC (1983) 152 CLR 328, 57 ALJR 236, Calderwood v SCI (1985) 130 ALR 456. It is ordinarily preferrable for this advice to be given in the absence of the jury, but giving the advice in the presence of the jury is not an appellable error: KH v Regina [2014] NSWCCA 294 esp at para [36].

Statutory Proceedings.
The privilege against self incrimination will be implied in statutory proceedings unless there are clear words to the contrary, even if the answer is not admissible in other proceedings: Sorby v Commonwealth (1983) 152 CLR 281, 57 ALJR 248, but see CAC v Yuill (1991) 172 CLR 319, 65 ALJR 500. Thus it appears to apply to the NSW Crime Commission: Gavin v NSW Crime Commission (1993) 70 A Crim R 417. The privilege applies in non-judicial proceedings (Pyneboard Pty Ltd v TPC (1983) 152 CLR 328, 57 ALJR 236).

Marital Privilege.
A spouse, de facto spouse, parent or child is competent but not compellable by the prosecution to disclose communications between them unless the court otherwise orders (s.18 Evidence Act). The court has a discretion and is required to weigh up whether the harm to the relationship outweighs the importance of the evidence. The privilege does not apply to family law proceedings: s. 100 Family Law Act. The rule does not prevent a witness from being compelled to say what he overheard in a conversation between spouses: Rumping v DPP [1964] AC 814. The privilege appears not to apply to former spouses, overruling Smiles (1993) 67 A Crim R 234. Where the privilege could arise, the court itself should raise the matter with the witness, in the absence of the jury: Trzsinski v Daire (1986) 44 SASR 43.

Legal Professional Privilege.

Legal professional privilege protects:

• confidential communications between a client, his legal advisers and third parties (s. 118), including salaried and government lawyers (s. 117)
• with reference to litigation actually taking place, pending, or anticipated AND
• for the dominant purpose of providing professional legal services purpose of the litigation: s. 119, overruling in part Grant v Downs (1976) 135 CLR 674.

It is not fatal to privilege if a document contains extraneous information: Waterford (1987) 163 CLR 54 at 103. The privilege prevents the Crown from calling for a document prepared by an accused for his solicitor: James (NSW CCA 30/7/1998), (1998) 5 Crim LN [876].

• the evidence has substantial probative value and
• other evidence of the protected confidence is not available and
• the public interest in preserving confidentiality and protecting the protected confider from harm is substantially outweighed by admitting the material into evidence (s. 299D Criminal Procedure Act).

The court must take into account various matters relating to the desirability of sexual assault counselling being confidential (s. 299D (2)).

Notice is required to be given to each party and the protected confider before such documents are required to be produced or tendered in evidence: s. 299C Criminal Procedure Act. It is sufficient compliance in criminal proceedings to give the informant notice: s. 299C (2). Under s. 297 Criminal Procedure Act, a person cannot be required to produce a document recording a protected confidence in a committal proceeding, nor is evidence of a protected confidence admissible.

For a case where an appeal was allowed where a judge granted leave to issue a subpoena to produce the notes of the complainan's psychologist without considering the matters referred to above see Regina v Bonanno; ex parte Protected Confider [2020] NSWCCA 156.

Priest and Penitent.
A religious confession to a priest is privileged: s. 127 Evidence Act.


'Without Prejudice' Negotiations.
Bona fide negotiations with a view to comprise are privileged even if not marked 'without prejudice': s. 131 Evidence Act, Rodgers v Rodgers (1964) 114 CLR 608. Unhelpfully, this does not apply to negotiations in criminal matters: s. 131(5).

Reasons of Judges and Juries.
Except in appeals and cases relating to attempts to pervert the course of justice, reasons or deliberations of judges and juries are inadmissible: s. 129 Evidence Act. This rule does not appear to apply in cases where a juror had been unlawfully coerced during deliberations: Smith v State of Western Australia [2014] HCA 3 esp at para [48]. Similarly, evidence of a communication that a juror has knowledge of matters which should not be before the jury falls outside the rule (Agelakis v Regina [2020] NSWCCA 72 esp at paras [23] and [24]).

Public Interest: Documents that Should Never Be Produced.
Certain documents that should never be produced despite the competing public interest. These documents include classes of documents even if the individual document is innocuous, such as cabinet minutes, submissions to Cabinet, and high policy documents. The immunity does not last forever: Sankey v Whitlam (1978) 142 CLR 1.

Public Interest: Documents that May Be Produced.
In other cases the court must weigh up the competing public interests in harm of the production of the document and the public interest in the proper administration of justice: s. 130 Evidence Act, Sankey v Whitlam, Alister v The Queen (1984) 154 CLR 404. Public interest immunity may apply to statutory authorities: Aboriginal Sacred Sites Authority v Maurice (1986) 65 ALR 247.

Procedure In a Public Interest Claim.
In a claim for public interest immunity the following rules apply:

This section deals with the admission of tendency evidence in cases other than child sexual assault cases where the hearing begins on or after 1 July 2020. For the rules applicable to child sexual assault cases on or after 1 July 2020, see below.

It is not necessary for evidence of tendency to have substantial probative value that there is a striking pattern of similarity between the incidents alleged against the accused, but the closer and more particular the similarities, the more likely it will be that the evidence will have substantial probative value: BP v Regina [2010] NSWCCA 303 at [108]. Thus, in a case where the accused was charged with indecent assault of a child, it was held that evidence of the accused exposing himself to adult females should not have been admitted as tendency evidence: Sokolowskyj v Regina [2014] NSWCCA 55.

In June 2017 the High Court handed down its decision in Hughes v The Queen (2017) 263 CLR 338 [2017] HCA 20. This case was a conviction appeal by a television actor who appeared in a television comedy, 'Hey Dad'. The appeal was related to the determination that the evidence had the 'significant probative value' required by s. 97 Evidence Act, not the test that set out in s. 101 Evidence Act that the probative 'value of the evidence substantially outweighed its prejudice' (see para [18]).

By the narrowest of majorities, the appeal was dismissed (per Kiefel CJ, Bell, Deane and Edelman JJ; contra Gageler, Nettle and Gordon JJ.). The majority approved the approach of the NSW CCA that it was not always necessary that evidence of other incidents tendered as tendency evidence in relation to the charge in question bear similarity to the charge in question, depending on the issues in the trial. Thus if the issue is identification of the accused as the offender, a high degree of similarity may be required, but not where the issue is whether the offence was committed at all (at para [39] to [40]). The greater the degree of particularity or the tendency asserted, the more likely it will be that that the tendency has 'significant probative value' (at para [64]).

In Hughes, the relevant tendency relied upon by the prosecution was to act on an interest in underage children, in the vicinity of another adult, so that there was a risk of detection (at para [57]). The majority said that a tendency with a high level of generality might establish relevance, but not significant probative value, whereas a tendency expressed at a level of particularity (such as in Hughes) is more likely to have significant probative value (at para [64]).

Single complainant

In Regina v Qualtieri (2006) 171 A Crim R 436 Howie J, said that where there is a single complainant giving evidence of multiple acts, it will rarely have sufficient probative value to be admissible as tendency evidence: see esp para [118].

In IMM v The Queen (2016) 257 CLR 300 the plurality of the Court said that 'without more, it is difficult to see how a complainant's evidence of conduct of a sexual kind from an occasion other than the charged acts can be regarded as having the requisite degree of probative value' (at para [62]).

However in The Queen v Bauer (A Pseudonym) [2018] HCA 40, (2018) 266 CLR 56 the High Court said unanimously (at para [48]):

This applies to both charged and uncharged acts relating to the same complainant (Bauer at para [62]). The High Court effectively confined the statement in IMM to its facts (Bauer at para [55]). It follows that where there are multiple charges relating to an individual complainant, the charges should ordinarily be heard together in a single indictment (Bauer at para [50].

The High Court also stated that where there is a single complainant giving evidence of uncharged acts as tendency evidence, the jury is not required to be satisfied of the uncharged acts beyond reasonable doubt (Bauer at para [86]).

In Johnson v The Queen [2018] HCA 48 the appellant was charged with 5 counts of sexual assault against his sister. The charges ranged from allegations when the appellant was 11 or 12 years old, and so was presumed to be doli incapax, to charges when he was 28 years old. The High Court unanimously held that the evidence was rightly admitted, in spite of the period of 16 or 17 years between the first and the last offences.

Multiple complainants

In The Queen v Bauer (A Pseudonym) [2018] HCA 40, (2018) 266 CLR 56 the High Court said (at para [58]):

An example of such a feature linking the offences was in Hughes, where the relevant feature was a man of mature yearts with an interest in female children under the age of 16 and a tendency to act on it by committing offences in circumstances involving a high risk of detection (Bauer at para [59]).

McPhillamy v The Queen [2018] HCA 52 was a case where the Crown tendered as tendency evidence uncharged acts relating to complainants B and C in a case where the complainant was complainant A. The High Court held that in a case where there was a considerable gap in time between the offences charged and the offences relied upon as tendency evidence (in that case 10 years), without some feature additional to sexual intercourse to link the two together, the evidence was not capable of affecting the likelihood that the accused committed the offences charged to a significant extent, and the tendency evidence did not overcome the threshold test in s. 97(1) (see esp. paras [30] to [32]). The Court did not consider the question of whether s. 101 Evidence Act was satisfied (para [32]).

In The Queen v Bauer (A Pseudonym) [2018] HCA 40, (2018) 266 CLR 56 the High Court determined that in single complainant cases, where the complainant gives evidence of uncharged acts, the uncharged acts are not required to be proved beyond reasonable doubt (at para [86]). No similar statement was made about tendency evidence led in cases where there are multiple complainants, whose evidence is led as tendency evidence. However, it was suggested but not finally determined in Jackson v Regina [2020] NSWCCA 5 at para [67] that the same reasoning applies in cases with multiple complainants.

Evidence of Prior Acquittals.

Evidence of matters of which the accused has been acquitted may not be led by the Crown as similar fact evidence: Garrett v The Queen (1977) 139 CLR 437, Young (1996) 90 A Crim R 80. This approach has not followed by the House of Lords in Regina v Z (House of Lords, unreported, 22/6/2000). Obiter, this approach was also rejected in The Queen v Carroll (2002) 213 CLR 635 at para [50].

Tendency Evidence in Child Sexual Assault Cases on or after 1 July 2020

In child sexual assault cases where the hearing begins on or after 1 July 2020, the following rules apply.

Where there is tendency evidence that the defendant has or had a sexual interest in children (even if the defendant has not acted on that interest), or has acted on a sexual interest the defendant has or had in children, the evidence will be deemed to have significant probative value (s. 97A (2) Evidence Act). That is the case whether the evidence refers to tendency evidence led relating to the complainant, or to another child (s. 97A (3)). However, the court may find that the evidence does not have significant probative value if it is satisfied that there are sufficient grounds to do so (s. 97A (4)).

The following matters are not to be taken into account in determining whether or not there are sufficient grounds to find that the proposed tendency evidence does not have sufficient probative value (s. 97A (5)):

• the sexual interest in the tendency evidence is different to that alleged in the proceedings;
• the circumstances of the sexual interest in the tendency evidence is different to that alleged sexual act or interest;
• the personal characteristics of the alleged victim in the tendency evidence (such as age and gender) are different from those of the complainant in the proceedings;
• the relationship between the defendant and the alleged victim in the tendency evidence is different to that between the defendant and the complainant in the proceedings;
• the period of time between the occurrence of the tendency evidence and the occurrence of the alleged interest or act;
• the tendency evidence and the alleged sexual acts or interest do not share distinctive or unusual features; and
• the level of generality of the tendency

After 1 July 2020, it is no longer open to the court to take into account the possibility of collusion, concoction, or collaboration in determining the probative value of tendenct evidence: s. 94 (5).

The Coincidence Rule.

Coincidence evidence is that two or more related events occurred to prove that, because of the improbability of them occurring coincidentally, that a person did a particular act or had a particular state of mind. ( s 98 (1) Evidence Act).

An example of coincidence evidence might that two bank robberies or sexual assaults of different complainants were so similar that it was unlikely that they were committed by different offenders.

Such evidence is only admissible if:

• the other party has been given reasonable notice (s.98 Evidence Act)
• that the evidence is capable of rationally affecting a fact in issue (s. 55 Evidence Act). As to the meaning of this phrase, see the preceding section, 'The Tendency Rule'.
• the court thinks that, having regard to any similarities in the events and the circumstances in which they occurred, it would have highly significant probative value: s. 98 Evidence Act. As to the meaning of this phrase, see the preceding paragraph.
• where the evidence is tendered by the prosecution in a criminal trial, comply with s. 101 Evidence Act (as to which, see below)

In proceedings the hearing of which commences after 1 July 2020, the Evidence (Amendment) Act (2020) applies. That act inserts s. 98(4) ,which states that, 'to avoid doubt', coincidence evidence includes two or more witnesses claiming they are the victims of offences committed by the defendant on the basis of similarities in the claimed acts with the allegations against the defendant in the proceedings. It is the writer's unerstanding, that that was always the case.

One single other incident, apart from the offence charged, is sufficient to constitute tendency evidence: Regina v Aravena [2015] NSWCCA 228 esp at para [89].

In determining whether to admit the evidence under s. 98, the judge must evaluate the likelihood that the jury would be likely to assign the evidence significant probative value: see Regina v Zhang (2005) 158 A Crim R 504 esp at para [139]. The judge should consider whether there is a possible explanation inconsistent with guilt, as a real possibility, and whether this real possibility substantially alters his view as to significant capacity of the evidence to establish the facts in issue: DSJ and NS v Regina [2012] NSWCCA 9 esp at paras [79]-[80].

Where the Crown relies on coincidence evidence in order to establish that a number of crimes must have been committed by the accused, it is unnecessary for the Crown to prove beyond reasonable doubt that one of the offences was committed by the accused, as a precondition for the admissibility of the evidence as coincidence evidence: Davis v Regina [2018] NSWCCA 277 esp at para [96].

Dissimilarities between the offences are only relevant to the extent that they undercut the improbability of the co-incidences relied upon by the Crown: Selby v Regina [2017] NSWCCA 40 esp at para [27].

After 1 July 2020, it is no longer open to the court to take into account the possibility of collusion, concoction, or collaboration in determining the probative value of coincidence evidence: s. 94 (5).

Notice

A party seeking to tender tendency or co-incidence evidence is required to give notice to the other parties: s. 98 Evidence Act.

The notice must state:

• the substance of the evidence which the party intends to adduce
• the date, time, place and circumstances at which the conduct occurred
• the names and addresses of each person who saw or heard the conduct

(regulation 5, Evidence Regulations).

The Supreme Court Rules, and District Court Rules state that the time for service of the notice in the District Court is specified as being the same as the Civil Procedure Rules: rule 75.3 Supreme Court Rules, rule 53.10C District Court Rules.The time for service of a notice for s. 97 notices in the Civil Procedure Rules is 21 days before the day when the date for determining the date for hearing: rule 31.5 Civil Procedure Rules.

Failure to give notice may be excused under s. 100. The failure of the prosecution to provide adequate notice is very frequently excused on the basis that the accused cannot point to any concrete forensic disadvantage which results.

A general notice, such as 'In each case in respect of each complaint the Crown will lead evidence of the charges in respect of each of the other complainants', is insufficient: AN (2000) 117 A Crim R 176. Failure to object to the lack of notice cannot constitute waiver unless the court is satisfied that the accused had his rights explained to him, and that he understood that explanation: AN.

A notice of intention to adduce coincidence evidence should specify:

Relationship Evidence in Murder Cases

The relationship between the accused and the deceased in a murder case is admissible if it is relevant to the issues in the trial: Wilson v The Queen (1970) 123 CLR 33, Toki (2000) 116 A Crim R 536. Evidence of quarreling or violence remote from the time of the killing may not be admissible: Wilson. Statements about what the victim thought about the relationship are generally inadmissible: Frawley (1993) 69 A Crim R 208, especially at 220 and 225.

The decision of Andrews [2003] NSWCCA 7 suggests that where evidence of prior acts of jealousy or violence are led in a murder trial, it may be necessary for the Crown to show that the evidence is admissible as tendency evidence.

'Harriman' Evidence

At common law, it was held in Harriman v The Queen (1989) 167 CLR 590 that evidence of prior drug dealings between the accused and a witness could be used to show that the association between the two was for a guilty rather than an innocent purpose. It has been held that such evidence is not propensity evidence: Quach (2002) 137 A Crim R 345.

However, it has been held that evidence of prior drug dealings of an accused, not said to be tendency or coincidence, is not admissible as 'relationship' evidence: Fung (2002) 136 A Crim R 95.

Tendency/Coincidence Evidence led by the Defence.
Tendency/coincidence evidence led by the defence is admissible if:

• the other party has been given reasonable notice AND
• the court thinks it would have highly significant probative value: s. 98 Evidence Act.
  

Significant means less than substantial: Lockyer (1996) 89 A Crim R 457. Where evidence is led by the defence of the propensity of prosecution witnesses (for example the propensity of prosecution witnesses to be violent) the evidence does not go solely or mainly to credit of the prosecution witness and so the character of the accused cannot be raised: Hancock (NSW CCA u/r 21/11/96). In the case of Cakovski (2004) 149 A Crim R 121 it was held that in a self defence murder case 20 years previously the deceased had murdered 3 people, the evidence was wrongly rejected.

The accused does not have an onus to prove tendency evidence to any particular standard (for example the civil or criminal standard): Regina v Bosanovic and Bosanovic [2018] NSWCCA 246 esp at paras [59] to [62].

10/. The Defence Case and Character

(a) Character Generally

Character Generally.
Evidence of the character, reputation, conduct or tendency of a person other than the accused is only admissible if:

• the other party has been given reasonable notice
• the court thinks it would have significant probative value: s. 97-8 Evidence Act.

As to these provisions see the previous chapter.
There are also limitations on cross-examining complainants in sexual assault trials about their sexual history. As to this see the chapter 'Sex and Violence' in the section on Crime.

Credibility of a Witness.
The Crown can't call an expert (eg a psychiatrist) to say a particular witness (eg a DD or child) is unlikely to be lying: Robinson [1993] TLR 595, (1994) ALJ 611, C (1993) 70 A Crim R 378, F (1995) PD [349].

(b) Accused as Witness

Who decides whether the accused gives evidence?

It has been held that ultimately the decision whether or not to call the accused is a decision for the accused, and a failure to give the accused that choice and advise him in relation to that choice may result in a miscarriage of justice: Jeffrey v The State of Western Australia [2018] WASCA 219 esp at para [179].

When the Accused is Called.
There is no rule that in the defence case the accused must be called first, but if he is not a comment can be made that he had the opportunity to tailor his evidence to fit in with his witnesses: Lister [1981] 1 NSWLR 110, RPS (NSW CCA u/r 13/8/97), followed by the High Court in RPS v The Queen (2000) 199 CLR 620, 74 ALJR 449.

Abolition of the Dock Statement.
The dock statement has been abolished for people charged after 10/6/94. The Evidence Act does not retrospectively abolish the dock statement: Milat (Hunt J, 22/4/96, u/r).

Acceptable Commenting on Failure to Give Evidence.
The judge and any other party (except the prosecutor) may comment on the failure of the accused to give evidence: s. 20 Evidence Act. However the judge must not suggest that the defendant failed to give evidence because the defendant was or believed he was guilty.

Commenting on The Accused's Evidence.
The jury should be directed that it is entitled to give the accused such credit as it thinks fit for having given evidence on oath: Robinson & Triplady (1985) 123 LSJS 37 (SA) (cited in the Right Direction). The jury should not be told that the accused has a special interest in the proceedings and that his evidence should be carefully scrutinized: Robinson v The Queen (1994) 180 CLR 531, 51 A Crim R 318, Stafford (1993) 67 ALJR 510, Ramey (1994) 68 ALJR 917, Asquith (1994) 72 A Crim R 250.

Cross-Examination of the Accused.
The accused may not be cross-examined about an absence of motive on the part of the complainant to lie, although there may be questions and comment on the validity of a motive to lie which has been suggested to the complainant: Palmer v The Queen (1998) 193 CLR 1, 151 ALR 16. The accused may be asked whether another witness is wrong: BJS v Regina [2013] NSWCCA 123 esp at paras [191] to [193]. The prosecutor should not express his/her personal opinion while cross-examining the accused: Libke v The Queen (2007) 235 ALR 517.

An accused under cross-examination may be asked to provide a sample of handwriting, or to wear an item of clothing connected with a crime: Kirby [2000] NSWCCA 330 at para [47].

The accused should not be cross-examined about whether Crown witnesses are lying: Leak [1969] SASR 172, Rich (1998) 102 A Crim R 165, Gilbert (1999) 6 Crim LN [953], Dennis [1999] NSWCCA 23, Foley (1999) 105 A Crim R 1, Picker [2002] NSWCCA 78. However, it is permissible to ask the accused is what other witnesses said was true: Gonzales v Regina (2007) 178 A Crim R 232.

The prosecution may not tender a prior inconsistent statement of an accused after the close of the Crown case because this is splitting the Crown case: The Queen v Soma (2003) 212 CLR 299.

Cross-examination or Crown addresses based on differences between the accused's evidence and matters put to witnesses by counsel for the defence is 'fraught with peril and should therefore only be used with much circumspection' : Manuta (1990) 54 SASR 17, cited in Birks (1990) 19 NSWLR 677 at 691. See also Picker [2002] NSWCCA 78. The accused should not be cross-examined about why he did not tell the police about his defence earlier: Anderson [2002] NSWCCA 141. It is not for the trial judge to attack the credit of the accused as a witness: Mercer (1993) 67 A Crim R 91.

Failure of the Accused to Give or Call Evidence

As to this very important topic please go to the section 'Failure of the Defendant to Give Evidence or Call Evidence' in the Chapter entitled 'Proof, Presumptions, and Prima Facie'.

Weight to be given to a Record of Interview of an Accused

Regrettably, the High Court has held that where a record of interview with an accused is tendered, and the accused does not give evidence, the judge may direct the jury that the accused's denials do nor have the same weight as evidence on oath: Mule v The Queen (2005) 79 ALJR 1573.

(c) Character of the Accused

Evidence of the Accused's Good Character.

Evidence of good character of the accused is admissible: s. 110 Evidence Act. The judge should direct the jury that they should bear the accused's good character in mind in deciding whether or not to believe that it was likely that the accused committed the offence, and also in relation to the credibility of the accused in the denial of the charge. However the judge can also tell the jury that sometimes people do commit serious offences for the first time and evidence of good character cannot prevail over convincing evidence of guilt: Trimboli (1979) 21 SASR 577, Murphy (1985) 4 NSWLR 42, Andrews [1982] 2 NSWLR 116.There is not an invariable rule that a good character direction must be given: Melbourne v The Queen (1999) 198 CLR 1. If a good character direction, is given, it should not include a comment that on the facts of the particular case the good character of the accused would be of little assistance: Wedd (2000) 115 A Crim R 205.

The direction that the accused's good character is relevant to his credibility should be given even if the accused does not give evidence: Do [2004] NSWCCA 137.

Failure of defence counsel to call evidence of good character may result in a miscarriage of justice and a retrial: D (1996) PD [40], G McL (1997) 4 Crim LN [703].

In a case where the trial judge disallowed an accused to call a character witness the CCA found that there had been a miscarriage of justice and allowed an appeal: Decision Restricted [2019] NSWCCA 6.

Individual Opinion.
A person can give evidence of his individual opinion of the character of the accused: s. 110 Evidence Act. See also Stalder [1981] 2 NSWLR 9 and Chapman [2002] NSWCCA 105.

The Cut Throat Defence.
An accused may be able to lead psychiatric or other evidence that a co-accused was more likely to have committed the offence: s. 111 Evidence Act, Lowery [1974] AC 85; but see Turner (1975) 2 WLR 56. However there is a discretion to exclude such evidence: s. 135 Evidence Act.

The Accused's Shield: General Prohibition on Cross-Examination as to Credit

The general rule is that an accused must not be cross-examined about matters going only to the accused's credibility: (s. 104 (2) Evidence Act).

This general rule has enormous practical consequences. It means that in most cases, an accused person cannot be cross-examined about other criminal offences, nor can others give evidence of them.

In Hogg v Regina [2019] NSWCCA 323, an accused charged with child sexual assault offences raised his good character. The Crown in his address and the judge in his summing up suggested that the accused's good character 'cuts both ways' because people of apparent good character can use that good character to target vulnerable children. The conviction was quashed on the basis that the evidence of good character was undermined.

In some cases the Crown may be permitted to lead evidence or cross-examine the accused about other criminal offences, because they are relevant to the factual issues in the case, and in particular because they are admissible under the propensity and co-incidence exceptions. As to all of these exceptions, see the last chapter.

However the accused can also lose his 'shield' against cross-examination because of the way he conducts of his trial. Most of the rest of this chapter is concerned with ways in which an accused can expose himself to cross-examination about other criminal conduct alleged to have been committed by him because of his conduct of the trial.

Cross-Examination of an Accused who Gives Evidence On Matters Going to Credibility

An accused who gives evidence must not be cross-examined about a matter relevant only to credibility unless leave is given, or unless the questions are about

• bias or
• motive to be untruthful
• ability to be aware of or recall matters
• prior inconsistent statements (s. 104 Evidence Act).

Leave can be only given to cross-examine an accused if:

• the accused has adduced evidence of good character (s. 110- see Chapter on Character)
• evidence has been adduced by the defendant that a prosecution witness has a tendency to be untruthful, and that is relevant solely or mainly to the witness's credit (s. 104(4))
• the defendant has given evidence including evidence adverse to a co-accused (s. 104(6))

The various ways by which an accused can expose himself to cross-examination about other criminal offences is discussed in more detail below. Before leave is granted, the court is required to consider the matters in s. 192 Evidence Act, which are:

If s. 192 is not specifically considered, arguably the discretion to grant leave has miscarried: Stanoevski v The Queen (2001) 202 CLR 115.


The accused can be asked questions about matters raised in his own case including convictions: Jones [1962] AC 635.

Raising Good Character.
The accused can be cross-examined about matters relevant only to his credibility, with the leave of the court, if the defendant adduces evidence that he is generally or in a particular respect, of good character: s. 104(3) Evidence Act. If the defendant has called evidence that he is generally a person of good character, evidence can be adduced to show he is not a person of good character.

If the evidence was only called to show he was of good character in a particular respect, only evidence in relation to that particular respect can be called: s. 110 Evidence Act, PKS (NSW CCA 1/10/98), (1998) 5 Crim LN [917]. Thus in a sexual assault case, if an accused led evidence that he had no previous convictions for sexual assault, the Crown could not cross-examine him about prior convictions for dishonesty: Zurita [2002] NSWCCA 22 at para [19]. Similarly, a statement by the accused that he was not the sort of person to go around stabbing people, might only permit the Crown to lead evidence of other stabbings of the accused, not mere assaults: Gabriel v The Queen (1997) 76 FCR 279.

It has been held that an accused should have been able to raise the fact that he had no prior convictions, although at the time of the trial the accused had outstanding allegations which he had to face: Pethybridge [2020] NSWCCA 247.

The accused giving his version of what happened does not put the accused's character in issue: s. 104 (5) Evidence Act, Malindi [1967] AC 439. An 'emphatic denial' ('I'm not the sort of person to do that') has been held not to raise good character (Gabriel v The Queen (1997) 76 FCR 279), however it would be wise to advise clients never to make any such statement in cross-examination. If the accused raises good character in a responsive answer in cross-examination, the shield may not be lost: Gabriel v The Queen (1997) 76 FCR 279. However if the accused raises his good character unresponsively, for the purpose of raising his good character, the shield is more likely to be lost: Gabriel v The Queen (1997) 76 FCR 279. The penalty applies only if the intention of the peron adducing the evidence is to raise good character: Fuller (1994) 34 NSWLR 233.

The penalty will not apply to unresponsive answers of defence witnesses in chief (other than the accused): Amoe v DPP (1991) 66 ALJR 29 at 33, 57 A Crim R 24, Regina v Redd [1923] 1 KB 104 at 106. Raising an aspect of the accused's bad character does not entitle the Crown to cross-examine the accused about this material without leave: El-Kheir [2004] NSWCCA 461.


Failure to check your client's instructions that he has no record has been held to be professional incompetence: Hamilton (1993) 68 A Crim R 298. Formerly it was possible to seek a ruling in advance as to whether or not a matter raises good character and what effects will flow: Hamilton, PKS (NSW CCA 1/10/98), (1998) 5 Crim LN [917]. This useful practice was disapproved by the High Court in TKWJ v The Queen (2002) 212 CLR 124, but s. 192A Evidence Act overrcomes this decision and empowers courts to make advance rulings.

Discretion When Character Raised.

There is a discretion to exclude evidence of bad character where its prejudice exceeded its probative value e.g. convictions for wholly unrelated types of offences: ss. 135 -137 Evidence Act, Stalder [1981] 2 NSWLR 9, Winfield (1939) 27 Cr App Rep 139, M (1993) 67 A Crim R 549.

Allegations Against Crown Witnesses

With the leave of the court, the accused can be cross-examined as to credibility if evidence has been adduced by the accused that a witness called by the Crown has a tendency to be untruthful, and that is relevant solely or mainly to the witness's credibility: s. 104(4)(b) Evidence Act. It appears that the cross-examination can include cross-examination about the accused's criminal history: Diamond (CCA u/r 19/6/98).

Where evidence is led by the defence of the propensity of prosecution witnesses (for example the propensity of prosecution witnesses to be violent) the evidence does not go solely or mainly to credit of the prosecution witness and so the character of the accused cannot be raised: Hancock (NSW CCA u/r 21/11/96).

Evidence about the events in relation to which the defendant is being prosecuted, and the investigation of that offence, and in particular denials of allegations made by the police, will not expose the accused to the risk of cross-examination about bad character: s. 104 (5) Evidence Act, Dawson v The Queen (1961) 106 CLR 1 , Amoe v DPP (1991) 66 ALJR 29 at 33, 57 A Crim R 244. See also next paragraph.

Discretion When Allegations are Raised.
The court has a discretion as to whether or not to allow the evidence after the accused makes allegations against Crown or co-accused witnesses: ss. 135-137 Evidence Act. The prejudice to the accused must be weighed up with the the need of the Crown with the nature of the answer of the question asked: Donnini v The Queen (1972) 128 CLR 114. One important factor is whether or not the imputations on the Prosecution witnesses is a necessary part of the defence of the accused: Phillips v The Queen (1985) 159 CLR 45.

Evidence against a Co-Accused.
Where an accused has given evidence adverse to a co-accused in the same proceedings the co-accused may cross-examine as to credit, with leave of the court: s. 104(6) Evidence Act.

Evidence is 'against' an accused if, ignoring anything 'casual or trivial', the evidence would be included in a summary of evidence which would warrant the conviction of the accused: Lord Morris in Murdoch v Taylor [1965] AC 574. Evidence against a co-accused includes a case where if the accused's evidence is accepted the co-accused probably is guilty: Davis [1975] 1 WLR 345. A co-accused can also cross-examine an accused as to credit if the accused raises his good character: section 110.

What Evidence Can Be Given, and how can the evidence be used?

Evidence of the accused being charged or acquitted cannot be given: Maxwell v DPP [1935] AC 309, but see Stalder. At common law, if evidence of the accused's bad character was led, the jury should be told the evidence only goes to credit: Donnini v The Queen (1972) 128 CLR 114, BRS v The Queen (1997) 191 CLR 275. It can be led only to negate whatever significance the accused may have earned from the evidence of good character, not as a pointer to the likelihood of guilt: Stalder [1981] 2 NSWLR 9, Von Rijssen (1995) PD [12].

It was argued that the common law limitations on the use of bad character no longer applied where evidence of bad character is led to rebut evidence of good character, because section 110 specifically states that the tendency rule does not apply in those circumstances. However in OGD (No. 2) (2000) 50 NSWLR 433 the NSW CCA approved a judge's decision to limit the use that could be made of evidence of bad character to rebutting the defendant's claim of good character, and to direct the jury that they should not reason that because he has a bad character that he was more likely to have committed the crime alleged. Similarly, it was held that where evidence is admitted to rebut evidence of good character, it is not necesary for it to be admissible as tendency evidence: Clegg [2017] NSWCCA 125.

Where no conviction is recorded as a child and there are no convictions 2 years before the offence, no evidence of finding of guilt as a child should be led: s. 15 Children (Criminal Proceedings) Act (1987).

11/. Real Evidence

Tape Recordings.
Transcripts of tape recorded conversations are generally admissible: see s. 48(1) (c) Evidence Act, Butera v DPP (1987) 164 CLR 180, 62 ALJR 7, Cassar and Sleeman [1999] NSWSC 436. However if there is a doubt or disagreement about the transcript, the transcript should only be admitted as an aide memoire: Eastman v The Queen (1997) 158 ALR 107, [1997] FCA 548, Cassar and Sleeman. In Cassar and Sleeman Sperling J summarised the principles this way:

It is the almost invariable practice of the courts in criminal trials for the recording to be admitted as evidence, and the transcript of the recording to be marked for identification and provided to the jury.

An enhanced tape recording is admissible: Giovannone (2002) 140 A Crim R 1.

Charts.
It is permissible to use charts to explain complicated evidence: s. 29 Evidence Act, Smith v The Queen (1970) 121 CLR 572. The general rule that witnesses must give their evidence orally is not to be waived lightly: Butera v DPP (1987) 164 CLR 180 at 190.

Photographs.
Photographs are admissible subject to the discretion to reject when the prejudice to the accused exceeds the probative value: Ames [1964-5] NSWR 1489. It is enough if a witness was present when the photographs were taken: Schmidt v Schmidt [1969] Qd R 3.

Fingerprints.
Fingerprint evidence is admissible as long as it is not oppressively obtained: Carr [1972] 1 NSWLR 608. Spigelman CJ has suggested that a useful direction to as jury about assessing fingerprint evidence: Galli (2001) 127 A Crim R 493 at paras [91] to [93]. Where a fingerprint expert has been qualified, and has expressed an opinion about matching fingerprints, very little evidence may be enough to establish the basis of an uncontradicted opinion: JP v DPP [2015] NSWSC 1669 esp at para [32].

Tracker Dogs.
Evidence of tracker dogs is admissible but the jury should be warned of the danger of coming to conclusions from evidence not subject to cross-examination: McCartney [1976] 1 NZLR 472, Benecke (1999) 106 A Crim R 282. An examination of an object by a dog is not a search with the legal requirements that would entail: Question of Law Reserved (no 3 of 1998) (1998) 101 A Crim R 395.

Views.
There may be a view if one of the parties applies to the judge. In views the jury can draw inferences from what is seen: s. 54 Evidence Act. The jury may not conduct experiments: s. 53 Evidence Act, Kozul (1981) 147 CLR 221, 55 ALJR 377. There can be a view after the jury has retired: Delon (1992) PD [387]. Although there was was some authority for the proposition that the accused does not have a right to attend the view (Milat (NSW SC Hunt J 12/4/96)) it has recently been held that the accused has an absolute right to be present at a view: Jamal v Regina [2012] NSWCCA 613, Tongahai [2014] NSWCCA 81. Section 53 does not apply to 'demonstrations' that take place in the courtroom: Evans (2006) 164 A Crim R 489.

DNA Testing.
DNA testing is admissible if established by expert evidence: Tran (1990) 50 A Crim R 233, Jarrett (1994) 73 A Crim R 160, Milat (1996) 87 A Crim R 446. The jury should be directed that in a case where the DNA evidence is an indispensible intermediate step in the Crown case, that a DNA match only establishes that the accused could be the offender, but a mismatch excludes the accused as an offender. The jury should also be told that matching results in the absence of other evidence could not prove guilt beyond reasonable doubt: Pantoja (1996) 88 A Crim R 554.The Crown should call evidence of of the staff who carry out the DNA tests, not simply a person who supervises the tests, unless the evidence is admitted by consent: Sing (2002) 54 NSWLR 31 .

Evidence that the DNA profile obtained from a particular stain matches the DNA profile only of a stated proportion of the population (for example 1%) is generally admissible. However, it may be an example of the 'prosecutor's fallacy', and inadmissible, to lead evidence or to suggest before a jury that as a result that the probability of the offender being the accused is the inverse (in this example, 99 %): GK (2001) 125 A Crim R 315. This also applies to an argument that there is a 99% chance that particular remains belong to an accused's wife, because her DNA matches that of the remains, and only 1% of the population match that DNA: Keir (2002) 127 A Crim R 198. In this context it has been suggested that directions for fingerprint evidence provide a useful model: Galli (2001) 127 A Crim R 493 at paras [91] to [93]. In a case where a trial judge excluded evidence that a partial profile would only be found in the DNA of one in 512 males in the population, the CCA allowed a Crown appeal: Regina v MK [2012] NSWCCA 110.

In Aytugrul v Regina [2010] NSWCCA 272 by majority the CCA rejected an argument that evidence that 99.9% of the world population would be excluded was unfairly prejudicial, but there was a strong dissent by McClellan CJ at CL. However in Aytugrul v The Queen (2012) HCA 15 the High Court has said that evidence can be given either in the form that only one person in 1600 of the general population would be expected to share this DNA profile, or in the form that 99.9% of people would be excluded.

Exhibits.
Only in the most exceptional case can exhibits be kept out of the jury room: Wee (NSW CCA 14/12/92, (1993) PD [26]. There is no rule that the actual object in dispute must be produced: Commissioner of Railways v Young (1962) 106 CLR 535.

12/. Illegally Obtained Evidence

Illegally Obtained Evidence.
In Australia improperly or illegally obtained evidence is not to be admitted unless the probative value of the evidence outweighs the undesirability of admitting the evidence: s. 138 Evidence Act. The court is to take into account, amongst other matters:

• the probative value of the evidence
• the importance of the evidence in the proceeding
• the gravity of the impropriety
• whether the contravention was deliberate or reckless
• the difficulty of obtaining the evidence without the breach

See The Queen v Ireland (1970) 126 CLR 321 and Bunning v Cross (1978) 141 CLR 54, 52 ALJR 561.

It has been held that 'reckless' in this context involves at least advertance to the possibility of a breach of the law and a conscous decision to proceed anyway: Regina v Helmhout (2001) 125 A Crim R 257 esp at para [33].

The 'difficulty of obtaining the evidence without' impropriety or contravention of the law may favour the admission of the evidence where there is urgency to preserve evidence from loss or destruction, but may weigh against admission of the evidence where the illegal was deliberate or reckless: Kadir and Grech v The Queen [2020] HCA 1 esp at para [20].

In determining whether or not evidence is excluded by s. 138 Evidence Act, the reliability of the evidence in question is not to be taken into account, and the evidence is to be taken at its highest: Regina v Riley [2020] NSWCCA 283 esp at para [120].

Improper Arrest
It was held in DPP v Carr (2002) 127 A Crim R 151 that evidence obtained may be rejected if a defendant resists an arrest which takes place in a situation where the police officer should have issued a summons or court attendance notice.

If the reaction of the defendant is disproportionate, it could not be said that the action of the officer 'obtained' the evidence and s. 138 cannot apply: DPP v Coe [2003] NSWSC 363. It also cannot apply if the police officer could not reasonably have taken another course, for example in a case where the police officer does not know the name and address of the defendant and the defendant is moving away: DPP v CAD [2003] NSWSC 196.

Entrapment at Common Law
In Australia evidence obtained as a result of entrapment may be excluded on the basis of the Bunning v Cross discretion: Ridgeway v The Queen (1995) 184 CLR 19, 69 ALJR 484. If the crime would never have been committed but for the unlawful conduct of the police, the court should be more ready to exclude the evidence: Ridgeway. The correct procedure is not to seek a stay of proceeding: Ridgeway.

It appears that if a police undercover officer encourages the defendant to procure heroin, the evidence may not be rejected even though the police may be acting illegally: Salem (NSW CCA 3/10/97, (1997) 4 Crim LN [735]). This will be so even if the undercover agent 'talks up' the amount: Coulstock (1998) 99 A Crim R 143.

Entrapment in and Statute Law
The situation in relation to illegally obtained evidence has been changed so far as state offences in New South Wales are concerned by the Law Enforcement (Controlled Operations) Act (1997). This statute permits the chief executive officer of a law enforcement organisation to issue a warrant permitting 'controlled activities' to be conducted by law enforcement officer and civilians. Importantly the legislation prohibits inducing or encouraging a person to commit criminal activity or corrupt conduct that the person could not reasonably be expected to engage in unless so induced or encouraged (s. 7).

There are similar provisions in ss. 15G to 15J of the Commonwealth Crimes Act. Once again, the Act does not apply of a person is intentionally induced to commit a crime, and the person would not otherwise have committed that offence (s. 15GI). These provisions are discussed in more detail in Chapter One of the section on Crime.

13/. Documentary Evidence.

Best Evidence Rule.
The best evidence rule, which required the original of a document and not a copy to be tendered, has been abolished: s. 51 Evidence Act. A document purporting to be a copy can be tendered. Where a document is lost, oral evidence of its contents can be given: s. 48(4) Evidence Act.

Documents to Which the Rule Applies.
Documents in the Evidence Act include anything on which there is writing or marks, photographs, plans, and tape recordings: dictionary of Evidence Act.

Proof of Contents of a Document.
The original of a document can be tendered or the following:

• admissions by the other party as to contents
• something purporting to be a copy
• a transcript of a tapea document purporting to be
• a summary or an extract of a document forming part of the records of a business
• for a public document, something that purports to be printed by the government or the Government Printer (s. 48 Evidence Act).

To rely on this provision the party seeking to rely upon it must serve a copy of the document on the other party 28 days before the hearing: s. 49 Evidence Act.

Opinion Evidence as to Handwriting.
Opinion evidence as to writing evidence can come in the following ways:

• when a witness has seen the person write and can identify his handwriting: Duke v Duke (1975) 12 SASR 106
• when a witness has seen the person's writing although not in circumstances when he has sufficient knowledge of his writing: Doe v Suckermore (1836) 111 ER 1331
• handwriting experts- should give factual basis for their opinion: Bell v FS and U Industrial Benefit (McLelland J, (1987) 66 ALJ 377)
• comparison by the jury itself- to be used with caution.

It has been held that s. 133 LE(PAR) Act (formerly s. 353A Crimes Act) authorises the taking of a sample of handwriting from a person who has been arrested to identify the person: Knight (2000) 120 A Crim R 381 .

Presumptions Relating to Documents.
There are presumptions that:

• a document over twenty years old is valid (s. 152 Evidence Act)
• that a document bearing a particular date was executed on that date: Dillon v Gange (1941) 64 CLR 253;
• that an alteration or erasure in a deed were done after execution of the deed: Doe v Catomore (1851) 117 ER 1066.

  14. Opinion Evidence, Judicial Notice and Prior Determinations

Opinion Evidence Generally.
As a general rule a witness can only give evidence of what he or she actually observed, not his/her conclusions or opinions: s. 76 Evidence Act. This rule is defined in the Evidence Act as 'the opinion rule'. There are some exceptions:

• where the person's opinion is an issue (e.g. the defendant's opinion as to whether items were stolen in a receiving charges)(s. 77 Evidence Act)
• where lay persons can give opinion evidence (s. 78 Evidence Act)
• where experts can give evidence (s. 79 Evidence Act).

Opinion Evidence of Lay Persons.
Lay persons can give opinion evidence if

• the opinion is based on what the person saw or heard AND
• the evidence is necessary to obtain an adequate account of what happened (s. 78 Evidence Act).

An example of admissible lay opinion evidence would appear to be an opinion about the identity of a bank robber expressed by an eye witness to the robbery. If the lay witness is in no better position than the jury to form an opinion, the witness's opinion is not admissible. An example is a police officer expressing the opinion that the person depicted in a bank photograph of a robbery is the accused: Mundarra Smith (2001) 206 CLR 650, 75 ALJR 1398, [2001] HCA 50. However it has been held that a relative of an offender can give evidence identifying the offender in a bank photograph: Marsh [2005] NSWCCA 331.

Opinion Evidence about other people's state of mind

A witness must not give evidence about another person's state of mind when that person said something: Petch v Regina [2020] NSWCCA 133.

Opinion Evidence and Drink.

A lay witness can give evidence that a person is drunk (Whitby (1957) 74 WN (NSW) 441), but not that he was so drunk that he could not drive: Sherrard v Jacob [1965] NI 151.

Opinion Evidence and Speed

In Panetta (NSW CCA 2/10/97) a witness gave evidence that while she was in a car traveling at 70 kph, she saw for a few seconds a car traveling in the opposite direction at a speed she estimated was roughly 100 kph or more. It was held that the opinion as to speed should have been rejected as there was no rational basis for it.

Opinion evidence on Aboriginal traditional laws and customs

Members of an Aboriginal or Torres Strait islander group can give evidence about traditional laws and customs: s. 78A Evidence Act.

Expert Evidence.
For expert evidence to be admitted, it must be established that the expert witness:

• has specialized knowledge based on the person's training, study, or experience, AND
• the opinion is based wholly or substantially on that specialized knowledge (s. 79 Evidence Act).

In Makita v Sprowles (2001) 52 NSWLR 705 at para [85] Heydon JA said that for evidence tendered as expert evidence to be admissible, it must be demonstrated that (this is slightly summarised):

• there is a field of specialized knowledge
• the witness has become an expert in (an identified aspect of) that field of specialized knowledge by reason of specified training, study or experience
• the opinion proffered is based wholly or substantially on the witness's expert knowledge
• the facts upon which the opinion is based must be identified and proved
• there is a demonstrable scientific basis to show how the specialized knowledge applies to the facts to produce the opinion propounded

Subsequently courts have the High Court held that the party seeking to tender expert evidence must establish the slightly less rigid criteria that:

• the witness who gives the evidence 'has specialised knowledge based on the person's training, study and experience'
• the opinion expressed in the evidence by the expert 'is wholly or substantially based on that knowledge', and
• the expert's evidence explains how the specialised knowledge of the expert applies to the facts observed so as to produce the opinion propounded

(Dasreef v Hawchar (2011) 243 CLR 588, [2011] HCA 21 esp at paras [32] and [37], Taub v Regina [2017] NSWCCA 198 esp at paras [27] to [28]).

It should be noted that the first criterion of establishing that the witness has 'specialised knowledge' presupposes that there is an established field of 'specialised knowledge'.

It appears that the question of whether or not the facts upon which the opinion was founded was proved is not a question of admissibility but a question of weight: see Kyluk v CEO Office of Environment and Heritage [2013] NSWCCA 114 esp at paras [176] to [177].

Areas of Specialized Knowledge

Spigelman CJ has said that 'knowledge' in this context means more than a subjective belief or unsupported speculation. It means any body of known facts or ideas inferred from such facts or accepted as truths on good grounds: Tang (2006) 65 NSWLR 681, 161 A Crim R 377 at para [138]. It would seem a majority of the High Court have expressed the view that for an to be regarded as a field of specialized knowledge, it must be established that there is a reliable body of knowledge and experience: Veleski v The Queen (2002) 76 ALJR 402 (per Gaudron J at [82], Gummow and Callinan JJ at [154]).

It must be established that there is a demonstrable and objective procedure for reaching the opinion tendered and that qualified persons could either duplicate the result or criticize the means by which the opinion was reached, drawing their own conclusions from underlying facts: Gilmore, followed in Pantoja (1996) 88 A Crim R 554.

Evidence can be given by police officers that particular words used by the accused might be or are consistent with code for drugs, but not that the words were code for drugs: Chen v Regina [2011] NSWCCA 145.

At common law expert evidence could be given about:

• voice identification (Gilmore [1977] 2 NSWLR 935 )
• drug addiction (Collins (1976) 12 SASR 501),
• whether a person is 'normal' or 'abnormal' ( The Queen v Murphy (1989) 167 CLR 94, 63 ALJR 422, 40 A Crim R 361)
• whether a person is a victim of battered woman syndrome: Dunjajic (1991) 53 A Crim R 362, Osland v The Queen (1998) 197 CLR 316, 159 ALR 170,
• on the meaning of code words for drugs: Huynh (CCA u/r 13/5/1996).

Expert evidence and child development

The Evidence Act has been amended to specifically declare that specialised knowledge includes knowledge of child development and behaviour, and in particular knowledge of the impact of sexual abuse on children and their development and behaviour: s. 79(2). The credibility rule does not apply to such evidence: s. 108C Evidence Act.

It has been observed in Victoria that the provision would not normally permit evidence to be given about the actual behaviour of the complainant after the offence was allegedly committed: MA v The Queen [2013] VSCA 20 esp at para 100.

Expertise.
For the opinion rule not to apply, it must be established that the person has specialized knowledge based on training, study or experience (s. 79 Evidence Act). This would include experience in a particular trade: Ritz v Charles of the Ritz (1987) 14 NSWLR 104.

'Ad hoc' experts on listening device material

An interpreter who becomes familiar with the voices of persons in a foreign language by listening to tapes may be qualified as an 'ad hoc expert': Leung (1999) 47 NSWLR 405. This may also apply to listening device material in English where a police officer becomes familiar with the voices over many hours and is able to identify who is speaking: Irani v Regina [2008] NSWCCA 217 .

Evidence of code in drug cases

A police officer can give evidence that, based on his/her experience, recorded conversations were consistent with conversations about drugs. However, expressions of opinion that the conversations are about drugs are not permissible: Keller [2006] NSWCCA 204 and Chow (2007) 172 A Crim R 582 .

The Opinion is Based on the Witness's Expert Knowledge

Once an witness is qualified as an expert in a particular field, it is still necessary to determine whether or not the particular opinion sought to be led is based on the witness's expertise. Thus it was held that an opinion from an expert in child sexual abuse to the effect that the natural father, and not the step father, of a child abuse victim was the perpetrator, was rightly rejected: HG v The Queen (1999) 197 CLR 414. Similarly, in Quesada (2001) 122 A Crim R 218 evidence it was held that from a psychologist that an accused being interviewed by police would be likely to be scared and could have her will overborne was held to be rightly rejected.

Basis of An Expert Opinion

For an opinion to be admissible there must be a rational basis for the opinion: Panetta (1997) 26 MVR 332. The expert must provide the court with criteria with which to judge the validity of the opinion: Makita v Sprowles (2001) 52 NSWLR 705. In particular, if an expert witness does not or cannot identify the protocol upon which he/she reached his/her opinions, or the basis of that protocol, the opinions are inadmissible: Tang (2006) 65 NSWLR 681, 161 A Crim R 377 at para [154].

An opinion based on specialized knowledge can also take into account matters within the knowledge of ordinary persons: Veleski v The Queen (2002) 76 ALJR 402 at [82] (per Gaudron J), and [158] (per Gummow and Callinan JJ ). See also Campbell v Regina [2014] NSWCCA 175 esp at para [225].

Requirements of the expert witness code

In the Supreme Court a report is inadmissible if it does not contain a statement that the expert has read and agreed to be bound by the expert witness code. Similarly, oral evidence by such a witness is inadmissible unless the witness acknowledges in writing that he has read the expert witness code and agreed to be bound by it: rule 75.3J Supreme Court Rules. The rule does not apply to reports prepared before the rule came into force on 30 August 2002.

This applies to civil proceedings in all courts: see rule 31.32 of the Uniform Civil Procedure Rules.

The expert witness code is found in schedule 7 to the Uniform Civil Procedures Rules.

There does not appear to be any equivalent requirement in criminal proceedings in the District or Local Court.

Probabilities.
An expert can give evidence of the probability of something being true: Van Beelen (1972) 4 SASR 353.

Ultimate Issue.
The ultimate issue rule, which said that no evidence can be received on a question upon which a legal standard is applied (Palmer [1981] 1 NSWLR 209 at 214), has been abolished: s. 80 (a) Evidence Act. This does not however allow expert opinion on the ultimate legal issue: Allstate v ANZ (No 33) (1996) 137 ALR 138 at 143.

Medical Evidence that it is probable that the complainant had been sexually assaulted

A doctor's opinion that, in light of the complainant's history and the doctor's examination, it was probable that the complainant had been sexually assaulted, is inadmissible: Davis [2004] NSWCCA 298 esp at paras [37] to [38].

Matters of Common Knowledge

Experts are no longer prevented from giving evidence of an opinion about a matter of common knowledge: s. 80 (b) Evidence Act. The main effect of this provision would appear to be in cases where an expert is relying upon conclusions he has come to on matters of common knowledge, in order to reach a conclusion about matters based on specialized knowledge: see Veleski v The Queen (2002) 76 ALJR 402 at [82] (per Gaudron J).

Hypothetical Questions.
A witness can give opinion evidence on the assumption that evidence given by other witnesses is true: Mason (1911) 7 Cr App R 67.

Statements to Experts.
At common law statements to experts and in particular to doctors were admissible but not as to the fact that they are true: Ramsay v Watson (1961) 108 CLR 642. As a result of s.60 Evidence Act, the history given to a doctor is evidence of the truth of what was said: Welsh (1996) 90 A Crim R 364, Lawson [2000] NSWCCA 214. The fact that the patient does not give evidence supporting the opinion still goes to the weight to be given to the opinion: Wright (1997) 93 A Crim R 48. It is not necessary to specifically direct the jury that the history is evidence of the fact: Hilder (1997) 70 A Crim R 70.

Unanimous and Conflicting Medical Evidence.
The jury should be advised that unanimous medical evidence should not be rejected: Taylor (1978) 22 ALR 599. If there is a conflict between experts, the jury may not be able to resolve the matter beyond reasonable doubt: Chamberlain (1983) FLR 1.

Experts and Hearsay.
The rule against hearsay does not prevent experts relying on reliable scientific or statistical data: Jeffrey (1991) 60 A Crim R 384.

Prior Convictions and Acquittals.

Evidence of a prior decision of a court is not admissible to prove the fact in issue elsewhere: s. 91 Evidence Act. This does not apply to proving the death, date of death, or execution of a will through a grant of probate (s. 92 Evidence Act), proceedings for defamation: s. 93 Evidence Act.

Opinions of Judges

A judge's opinion of a witness's credibility in other proceedings is inadmissible if tendered simply to show that the witness is either truthful or untruthful: Chami (2002) 128 A Crim R 428. Conflicting views were expressed about whether or not in appeal proceedings against a prosecution witness who failed to come up to proof, the opinion of the trial judge as to the witness's credibility was admissible: Regina v MG [2016] NSWCCA 304.

Judicial Notice

Proof is not required about legislation, and a judge may inform himself about such matters as that judge thinks fit (s. 143 Evidence Act). Proof is not required of matters which are common knowledge in the area in which the proceedings are being held or generally (s. 144 Evidence Act). Judicial notice is generally limited to matters so generally known that every reasonable person may reasonably be presumed to be aware of them: Woods v Multi-sport Holdings Pty Ltd (2002) 208 CLR 460 at para [64] (per McHugh). If the judge is to rely on judicial notice of such matters, the judge must give the parties the opportunity to address on these matters (s. 144(4) Evidence Act).

Issue Estoppel.
Issue estoppel does not apply in a criminal trial: Owen (1993) 68 A Crim R 247, Rogers v The Queen (1994) 181 CLR 251, 68 ALJR 688, 74 A Crim R 462. However it may be an abuse of process for the Crown to attempt to relitigate matters already decided in related proceedings: Rogers. The principle applies whether or not the decision about the admissibility of the evidence was based on the exercise of a discretion: GK (2000-2001) 53 NSWLR 317. It does not apply if the earlier trial was aborted before reaching a verdict (Blair (1985) 1 NSWLR 584), where the earlier verdict was overturned on appeal, or even if there was a hung jury in the first trial: GK (2000-2001) 53 NSWLR 317.

This principle only applies in favour of the accused, not his co-accused: Pennant (Vic CCA unreported 12/9/97, (1997) 4 Crim LN [759].

15. The Hearsay Rule

The Hearsay Rule.
If a witness gives evidence in court of a statement made to the witness out of court the statement is hearsay, and prima facie inadmissible, if the object of the evidence is to establish the truth of the statement. It is admissible if the object of the evidence is to establish the fact that the statement was made: Subramaniam v The Public Prosecutor [1956] 1 WLR 965.

The Evidence Act states the rule in a more complex way: 'Evidence of a previous representation made by a person is not admissible to prove the exisance of a fact that can reasonably be supposed that the person intended to assert by that representation': s. 59 Evidence Act.

A witness can give evidence that "The bank robber pulled out a gun and said to me 'Give me your money'". However a witness will not usually be permitted to say 'My friend Joe told me that Jack told him that he did the armed robbery'. A representation can include the failure of a person or persons to respond to a question can be an implied representation: Rose (2002) 55 NSWLR 701.

Normally a confession by a third party is inadmissible, except perhaps to indicate leads not followed by police: Greatorex (1994) 74 A Crim R 496, Bannon v The Queen (1995) 185 CLR 1, 70 ALJR 25.

Implied Hearsay.
If the maker of the representation did not intend to assert the truth of the fact intended to be proved, the hearsay rule does not apply: s. 59 Evidence Act. Thus evidence can be led that a witness heard the deceased in a murder trial say 'Hello Dad' in a telephone call, in order to prove that the person the deceased was speaking to was the deceased's father.

Similarly at common law, there was authority that the hearsay rules were not to be applied inflexibly, especially when the the assertion was implied by the words:Walton v The Queen (1989) 166 CLR 283, (1989) 63 ALJR 226, Pollitt v The Queen (1992) 174 CLR 558, 62 A Crim R 190, Astill (1992) 63 A Crim R 148.

Out of court statements are admissible to show the maker's state of mind where this is an issue: Blastland [1986] AC 41, Walton v The Queen (1989) 166 CLR 283, (1989) 63 ALJR 226. At common law, the mere fact that the judge forms the view that the hearsay is reliable will not suffice for the evidence to be admissible: Bannon v The Queen (1996) 185 CLR 1, 70 ALJR 25. See 'Implied Hearsay', [1993] 67 ALJ 657.

Res Gestae.
Where an incident and the alleged offence form an integral part of the same transaction, and the transaction cannot be understood without it, and the offence in isolation could only be presented in an unreal and unintelligible form, the incident is admissible: Dixon in O'Leary v The King (1946) 73 CLR 566 at 577, The principle is to be applied with caution: O'Malley [1964] Qd R 226, Ciesielski [1972] 1 NSWLR 504. It rarely includes prejudicial statements: Martin (1990) 22 SASR 46. This principle still applies after the Evidence Act: Adam (1996) 47 NSWLR 267, 106 A Crim R 510 at para [26].

Spontaneous statements made by participants to or observers of an incident are admissible if they are clearly associated with the incident in terms of time, place and circumstances: Vocisano v Vocisano (1974) 130 CLR 267.

'Maker Unavailable'.
The maker of a previous representation is unavailable if the maker is:

• dead
• not competent
• it would be unlawful for the person to give the evidence
• all reasonable steps have been taken to find the person and the person can't be found or
• all reasonable steps have been taken to compel the person without success (Clause 4, Dictionary, Evidence Act).

It has been held that where a witness refuses to give evidence at all, although subpoenaed, he is an unavailable witness: Suteski (2002) 56 NSWLR 182, 137 A Crim R 371. This includes a situation where a witness refused to take an oath or make an affirmation: Sio v Regina [2015] NSWCCA 42. This has far reaching implications in a case where an alleged co-offender making an inculpatory record of interview subsequently refuses to give evidence.

A former co-accused, who gave evidence in an earlier trial, but now refuses to give evidence, is also unavailable, and a transcript of his evidence at an earlier trial may be tendered: Taber and Styman (2007) 170 A Crim R 427 esp at para [38].

A witness who cannot recall an incident (for example because of brain damage) is not unavailable: Regina v Brown, Barwick and Brown [2006] NSWCCA 69. A witness who claims not to remember an incident (even if falsely) is not unavailable: Tan v Regina [2008] NSWCCA 332.

It appears that a witness who is overseas for a few months is not 'unavailable': Li (2003) 140 A Crim R 288 at para [35].

Although the accused cannot be called in the prosecution case, it has been held that the accused is not an 'unavailable witness': Parkes (2003) 147 A Crim R 450 .

In trial proceedings it is also necessary to consider the operation of s. 285 Criminal Procedure Act, discussed in the section on trial procedure.

Civil Proceedings

Where a witness in civil proceedings is not available, the hearsay rule does not apply in relation to documents and first-hand hearsay: s. 63 Evidence Act. Where the witness is available, first-hand hearsay is admissible if it would cause undue expense or delay, or would not be reasonably practical, to call the witness, or if the witness is called: s. 64 Evidence Act. There must be reasonable notice in writing of the intention to do this: s. 67 Evidence Act.

Criminal Proceedings: Maker Unavailable.
First hand hearsay is admissible if the maker is unavailable and:

As to paragraph (b), because this paragraph is concerned with the risk of concoction, rather than the witness being honestly mistaken, the question of 'freshness' in the witness' mind is irrelevant: Williams (2000) 119 A Crim R 490. The representation must have been made spontaneously during or under the proximate pressure of (shortly after) the occurrence of the asserted fact: Williams at para [48]. The Full Federal Court held that a statement made 5 days after the asserted fact could not be said to be made 'shortly after the event': Williams at para [49]. However in Harris (2005) 158 A Crim R 454 it was held that a statement made to police 24 hours after the event was 'shortly after' the event.

The requirement that the representation was made 'in circumstances that make it unlikely that the representation was a representation' in s. 65 (2) (b) was said to be less stringent than the requirement in s. 65 (2) (c) that the representation was made in circumstances that make it unlikely that it was unreliable in Priday v Regina [2019] NSWCCA 272 esp at para [35].

In relation to both paragraph (b) and (c) the 'circumstances' of the representation must be considered. Different approaches have been taken to this phrase. In Mankotia [1998] NSWSC 295 Sperling J said 'circumstances' was restricted to the circumstances in which the representation was made, and other circumstances, such as other representations made by the same person, on other occasions, could not be taken into account. A similar approach was taken in Jang [1999] NSWSC 1040. However the Full Federal Court in Williams said that the 'circumstances' meant all the circumstances in which the statement was made, including consistency with other evidence in the case, and evidence of what the maker of the representation said on other occasions. The NSW CCA has held that although only the circumstances of the representation are relevant, these include other consistent and inconsistent representations of the person who made the representation are relevant: Ambrosoli (2002) 55 NSWLR 603.

As to paragraph (c), the Full Federal Court has described the requirement that the court be satisfied that the representation was made in 'circumstances that make it highly likely that it was reliable' as 'onerous' (Williams at para [55]).

In relation to paragraph (d), an inculpatory ERISP of an alleged co-offender has been held to be 'against the interests of the person who made it at the time it was made', and as a result admissible under s. 65(2) (d): Suteski (2002) 56 NSWLR 182, 137 A Crim R 371, Sio v Regina [2015] NSWCCA 42. This section only permits evidence of representations by the maker himself, not second hand hearsay: Eastman (SC ACT 10/8/95), Lee v The Queen (1998) 195 CLR 594, 102 A Crim R 289. Thus a statement by the maker that 'he told me he did it' is not admissible under this provision.

Evidence of a witness given in earlier proceedings is admissible if the accused cross-examined the witness or had an opportunity to cross-examine that witness in earlier proceedings, under s. 65 (3). As a result, evidence of a former co-accused in an earlier trial may be admissible under s. 65 (3) : Regina v Taber and Styman (2007) 170 A Crim R 427.

There must be reasonable notice in writing of the intention to call hearsay evidence under s. 65: s. 67 Evidence Act. As to the requirements of the notice see reg 4 of the Evidence Regulations.

If evidence is found to be prima facie admissible under s. 65, it may still be excluded under s. 135 or s. 137: Sio v Regina [2015] NSWCCA 42 esp at para [29].

An appeal against a decision to admit evidence under s. 65 does not involve the principles in House v The King (1936) 55 CLR 499.

Criminal Proceedings: Maker unavailable: Hearsay Called By Defence.
The defence in criminal proceedings can call first-hand oral or written hearsay when the maker is unavailable: s. 65(8) Evidence Act. If this is done, first hand hearsay evidence can be admitted by other parties on the same topic: s. 65 (9) Evidence Act.

Such evidence is not limited to other representations of the same unavailable witness: Eastman v The Queen (1997) 76 FCR 9 at 80. The requirements of s.65(2) (see paragraph above) do not apply to evidence led under s. 65(8) or s. 65(9) : Mrish (Hidden J 4/10/96), Elms (2004) 61 NSWLR 703 at para [36]. There must be reasonable notice in writing of the intention to call evidence under s. 65(8) : s. 67 Evidence Act.

Criminal Proceedings: maker available.
Where a witness is available, evidence can be called of a previous statement of a witness if it was made when the event was fresh in the memory of the maker: s. 66 Evidence Act. This does not apply to statements and proofs of evidence, except as to representations as to identity of a place, person or thing: s. 66(3). It may include the ERISP of a co-accused who has already been dealt with: GAC (NSW CCA u/r 1/4/97). However it does not apply to an ERISP intended to set out the evidence that the person was prepared to give: Esposito (1998) 45 NSWLR 442, 105 A Crim R 27.

Under s. 66 denials of an accused subsequent to the alleged offence are admissible if made while the events are 'fresh' in the accused's memory: Crisologo (1997) 99 A Crim R 178.

The most important limitation upon material sought to be tendered under s. 66 is the requirement of that it be 'fresh in the memory' of the person making the representation. 'Fresh' is not restricted to 24 hours after the event: Hall (1997) 92 A Crim R 168. However in Graham v The Queen (1998) 195 CLR 606, 72 ALJR 1491, 102 A Crim R 438 the High Court said that fresh meant immediate or recent and would usually be measured in hours and days, not years. See also Suresh v The Queen (1998) 53 ALR 145 and Gillard (1999) 105 A Crim R 479.

Regrettably it has been held that if there is a continuous course of conduct leading to a final contemporaneous complaint, complaint about the whole course of conduct is admissible: Vinh Le [2000] NSWCCA 49. It has been held that a complaint made 66 days after the event may be still 'fresh in the memory': Skipworth [2006] NSWCCA 37. A complaint of sexual assault made 47 days after the event was held to have been to have been rightly admitted in Gordon-King v Regina [2008] NSWCCA 335. However in Langbein v Regina (2008) 181 A Crim R 378 it was held that a time lapse of 85 days was so significant that the events were not 'fresh in the memory'.

Section 66 has been amended as from 2009 in order to weaken the effect of Graham v The Queen. In determining whether or not the asserted fact was 'fresh in the memory', the court is now required to take into account the nature of the event concerned, the age and health of the person, and the period of time between the occurrence of the asserted fact and the making of the representation: s. 66(2A). In a decision on the effect of that decision, Regina v XY [2010] NSWCCA 181 the NSWCCA decided that on the facts of that case, where an alleged victim of sexual assault in 2003 to 2005 had complained to a friend in 2007 and then to his parents in 2009, the evidence of complaint was admissible.

In The Queen v Bauer (A Pseudonym) [2018] HCA 40, (2018) 266 CLR 56 the High Court accepted the proposition that memories of sexual assaults may remain fresh in the memory for many years (at para [89]).

The High Court also held in Bauer that if a representation is made in response to leading questions, that does not render the statement inadmissible: Bauer at para [92].

The NSW CCA has held that evidence of contemporaneous or near contemporaneous complaints will be ordinarily admitted as evidence of the fact (s. 60 Evidence Act), and the use by the jury will not be limited by use of s. 136: BD (1997) 94 A Crim R 131 (nb strong dissent by Smart J). The High Court has rejected a challenge to this decision in Papakosmas v The Queen (1999) 196 CLR 297, 73 ALJR 1274. It is not necessary to specifically direct the jury that 'complaint' is evidence of the fact because they would assume that was the case: Hilder (1997) 70 A Crim R 70.

For a comparison of the common law position in relation to 'complaint' evidence with the position under the Evidence Act see the article by Justice Smith and Holdenson QC 'Comparative Evidence: Admission of Evidence of Recent Complaint in Sexual offence Prosecutions' (2001) 75 ALJ 623.

Criminal Proceedings: Evidence of Statements of the Accused led by the Defence

If the accused gives evidence, his denials of the offence can be led by the defence under s. 66 if they are made while the events are 'fresh' in the accused's memory: Crisologo (1997) 99 A Crim R 178. If the accused does not give evidence, his denial to police may still be admissible as evidence of the fact, even if tendered by the defence, because it goes to the credit of his plea of not guilty, and s. 60 Evidence Act (see below) makes it evidence of the fact: Rymer (2005) 156 A Crim R 84 at para [53].

Contemporaneous Statement About Health.
A person's contemporaneous statements about his own health, feelings, sensations, intentions, knowledge or state of mind are admissible even if the maker is not called: s. 66A Evidence Act, Perry (1981) 28 SASR 95, Walton v The Queen (1989) 166 CLR 283, 63 ALJR 226. It was doubted that this section applied to statements about memory of events in Polkinghorne (1999) 108 A Crim R 189, and doubted that it applied to identification of persons in Barbaro and Rovere (2000) 112 A Crim R 551.

At common law statements made to a doctor are admissible as part of the foundation of the doctor's opinion but if the patient does not give confirmatory evidence the opinion will have no value: Ramsay v Watson (1961) 108 CLR 642. As a result of the Evidence Act, statements made to a doctor as part of a history, once admitted, are admissible as to the fact that the history is true: Welsh (1996) 90 A Crim R 463. It is not necessary to specifically direct the jury that the history is evidence of the fact because they would assume that was the case: Hilder (1997) 70 A Crim R 70.

Business Records.
Under s. 69 of the Evidence Act a representation in a document is admissible if:

• it is part of a record made in the course of or for the purpose of business (s. 69 (1))
• it is made by a person who might be thought to have personal knowledge (s. 69 (2)) and
• is not a statement made for or in contemplation of legal proceedings or made in connection with an investigation relating to or leading to a criminal investigation (s. 69(3)).

In such a case the hearsay rule does not apply to the document. You can prove a negative with business records: s. 69 (4) Evidence Act.

Business.
Under Part 2 of the Dictionary of the Evidence Act, 'business' includes a reference to any profession, calling, trade or undertaking, whether or not for profit, and whether or not in Australia. It also includes government activities. Hospital records are included: Albrighton v RPAH [1980] 2 NSWLR 542, Perry (No.3) (1981) 28 SASR 112. Records made by ambulance officers ar clearly admissible as business records: Jackson v Lithgow City Council [2008] NSWCA 312 at para [47], Lithgow City Council v Jackson [2009] HCA Trans 184, Jackson v Lithgow City Council [2010] NSWCA 136 at para [9].A 'business' can include the police (Reynolds (1993) 17 A Crim LJ 130, (1992) PD [292], Perry (No. 4) (1981) 28 SASR 119) but this is subject to the exception in s. 69(3) discussed below.

Records.
Records does not include letters received by a business: TPC v TNT (1984) 56 ALR 647. It does include tape recordings: ANA v Commonwealth (1975) 132 CLR 582 at 594.

Person With Personal Knowledge.
The representation must have been made by a person who might reasonably be supposed to have personal knowledge, or on the basis of information supplied directly or indirectly by such a person. It does not include records of another business without proof of something like a contract of service: Ross McConnel Kitchen v Ross (1985) 1 NSWLR 233.

Statements Made in Contemplation of Legal Proceedings

The business records exception does not apply to a statement made for or in contemplation of legal proceedings or made in connection with an investigation relating to or leading to a criminal investigation (s. 69(3)).

Other Exceptions to the Hearsay Rule.
Other exceptions to the hearsay rule are:

• contents of labels, tags etc if done in the course of business to describe the object: s. 70 Evidence Act.
• representations in electronic communications as to the sender, recipient, date and time: s. 71 Evidence Act.
• representations about the existance or non-existance of traditional laws and customs of Aboriginals and Torres Strait Islanders: s. 72 Evidence Act
• evidence about public or general rights: s. 74 Evidence Act.

Age and Relationships.
Hearsay does not apply to evidence about whether a person is married, cohabiting, age, and family history: s. 73 Evidence Act. In criminal proceedings, it is only admissible if it tends to contradict evidence already admitted on that topic, or if the evidence is tendered by the defence and reasonable notice in writing has been given.

Age may also be proved by:

• birth certificate
• a witness's belief as to another person's age is admissible but except where a great disparity of age is alleged is of little weight: Smith [1969] NZLR 856
• by way of exception to hearsay rule, a person can give evidence of or make admissions as to their own age: Smith, Turner [1910] 1 KB 362.

Notice Requirements

There is a requirement for reasonable notice in writing to be given to each other party of a party's intention to adduce the following forms of hearsay evidence:

• evidence in civil proceedings, witness unavailable ( s. 63(2) Evidence Act)
• evidence in civil proceedings, witness available ( s. 64(2) Evidence Act)
• evidence in criminal proceedings witness unavailable ( s. 65 (2),(3) and (8) Evidence Act)

(see s. 67 Evidence Act). A significant omission from the notice requirements is s. 66 which deals with hearsay evidence in criminal proceedings when a witness is available.

The court may permit the evidence to be led despite the fact that there has been no notice: s. 67(4). In practice, unless the opposing party can demonstrate that the failure to give notice has prejudiced that party in some way, the tendering party is likely to be permitted to call the evidence (see for example Tsung Chi Ming v North Western Immigration Services (1996) 140 ALR 273 at 282).

Hearsay material admitted for all purposes

One of the most significant provisions about hearsay is s. 60 Evidence Act, which in effect states that if evidence is admitted for a non-hearsay purpose, it becomes admissible for all purposes, including for a hearsay purpose. To use older terminology, it becomes evidence of the fact, and not merely evidence of the fact that it was said.

Section 60 has been amended to permit hearsay evidence to be given whether or not the person who made the representation had personal knowledge of the fact. In other words, second hand hearsay can be admitted as evidence of the fact. This amendment was intended to overcome what were perceived to be the difficulties with Lee v The Queen (1998) 195 CLR 594, 74 ALJR 1484, which limited the effect of s. 60 to cases of first hand hearsay.

However the actual outcome of Lee v The Queen is preserved by s. 60(3) which states that s. 60 does not apply to evidence of an admission in criminal proceedings.

Admissibility of Material About Credibility of a Witness Not Called

If a witness has not been called, but evidence of a representation has been admitted under one of the exceptions to the hearsay rule, evidence going to that witness's credibility is admissible if it has substantial probative value: s. 108A Evidence Act.

Hearsay and Reliability.

Hearsay evidence attracts a warning as potentially unreliable: s. 165 Evidence Act. As to this see the next Chapter, 'Unreliable Evidence and Corroboration'.

16/. Unreliable Evidence and Corroboration

Corroboration Abolished.
Corroboration is now only required in perjury and similar offences: s. 164 Evidence Act. However a corroboration direction may still be given: Lane (1996) 66 FCR 144. Cases where corroboration is required are likely to be rare: Lewis (1998) NSWSC 408.

Unreliable Evidence.
The following types of evidence may be unreliable (s. 165 Evidence Act):

• hearsay evidence
• evidence of admissions
• identification evidence
• evidence effected by age, illness or injury
• evidence by a person who might reasonably be supposed to be criminally involved in the offence alleged
• unadopted verbal admissions
• evidence of a prison informer
• oral evidence of unsigned verbal admissions
• claims on estates of the deceased

The above list is not exhaustive. There may be a need to give an unreliability direction for other reasons, such as the witness being effected by bias or drugs: Lewis (1998) NSWSC 408, Covill (2000) 114 A Crim R 111. Another example may be a witness who has received a discount on sentence for giving evidence: Stewart (2001) 52 NSWLR 301, 124 A Crim R 371. In these cases as a matter of practice the judge should warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. The judge should specifically draw the jury's attention to the factual matters: Faure (1993) 67 A Crim R 173.

Evidence of a 'kind that may be unreliable' refers to evidence the unreliability of which may not be apparent to the jury, or where the court has some special appreciation of the likelihood of the evidence being unreliable, or where the jury might over-estimate the value of the evidence: Stewart (2001) 52 NSWLR 301, 124 A Crim R 371, Baartman [2000] NSWCCA 298 esp at para [61]. Thus a direction about the potential unreliability of an eye witness who was drunk at the time of the offence may not be necessary: Diaz [2004] NSWCCA 251. A direction about the potential unreliability of a witness who has a motive to lie need be given: El-Azzi [2004] NSWCCA 455 esp at para [312].

The direction under s. 165 need not be given if there is a good reason not to (s. 165(2)) but if the judge fails to give reasons the conviction may be quashed. Where the evidence comes within one of the categories of evidence mentioned under s. 165, the judge should give give the jury a warning about all of the matters under s. 165 affecting the witness's reliability, unless there is a good reason for not doing so in a particular respect: Stewart (2001) 52 NSWLR 301.

Reasons should be given for a finding that s. 165 (2) does not apply to the facts of the case (Taranto and Freeman [1999] NSWCCA 396) and for a decision not to give a direction under s. 165(3): Beattie (1996) 40 NSWLR 155, 89 A Crim R 393.

If a s.165 direction is not sought at trial an appeal will not be allowed because no such direction was given: Stackelroth (NSW CCA 9/4/97), Foley (NSW CCA 5/6/97), McGavin v Regina [2014] NSWCCA 171esp at para [26].

Hearsay: 'Complaint Evidence'

The NSW CCA has approved the following list of relevant considerations in a case where 'complaint evidence' is led in a sexual assault case in TJF (2001) 120 A Crim R 209:

Technically an unreliability direction could be given in relation to an exculpatory out of court statement of an accused where the accused does not give evidence. However in Regina v Wilson (2005) 62 NSWLR 346 that judges might conclude that there are good reasons not to give an unreliability direction in relation to such evidence (esp at paras [37], and [39]. See also Mule v The Queen (2005) 79 ALJR 1573 at para [23].

Verbal Admissions

As to warnings to be given about unadopted verbal admissions, see the chapter on The Confession

Identification Evidence

For warnings about identification evidence, see the Chapter on Identification Evidence.

Evidence of Children

The evidence of a child may attract a warning under s. 165(1)(c) because the evidence may 'be affected by age'. However the judge must not warn the jury that child witnesses are unreliable as a class of witnesses, or that give a general warning of the danger of convicting on the uncorroborated evidence of any child witness: s. 165 A Evidence Act.

The judge may warn the jury that the evidence of a particular child witness may be unreliable, and warn the jury of the need for caution in determining whether or not to accept the evidence of a particular child witness and the weight to be given to it: s. 165A. Such a warning can only be given if one of the parties requests it, and if 'there are circumstances particular to that child in those proceedings that affect the reliability of the child's evidence and that warrant the giving of a warning'.

'Accomplices'.
A witness who is 'might reasonably be supposed to have been criminally concerned in the events' attracts a warning as an unreliable witness (s. 165 (1) (d) Evidence Act).'Criminally concerned' appears to have a similar meaning to the common law relating to accomplices, defined in Davies [1954] AC 378 adopted in Perry [1970] 2 NSWLR 501 as including:

• principals to the crime
• receivers
• accessories before or after the fact ( but see Ready and Manning [1942] VLR 85)
• parties to similar offences admitted as similar fact.

The question of whether an accessory after the fact should be regarded as an accomplice was regarded as an open question in Kanaan [2006] NSWCCA 109 at para [202]. At common law the rule does not apply to misprison of a felony: Collie, Kranz and Covegrove (1991) 55 A Crim R 139. It did not apply where the case is either that Crown witness X or the accused committed the crime: Faure (Vic CCA 30/6/93).

This rule only applies to persons criminally concerned in the commission of the offence called by the prosecution: Loveridge (1982) 76 Cr App R 125, Jamieson, Elliot and Blessington (1992) 60 A Crim R 68 at 76. The rule does not apply to the evidence of an accused: Proud v Regina (No. 2) [2016] NSWCCA 44 esp at para [73]. It only applies to that part of a witness's evidence which favours the prosecution: Baker [2001] NSWCCA 151. As a matter of discretion, it may apply to co-accused giving evidence: Webb and Hay v The Queen (1994) 181 CLR 41, 68 ALJR 582. It does not apply to undercover agents: Tyler (1992) 62 A Crim R 241, Dumas (1995) PD [346].

There was authority to the effect that even after the Evidence Act, where the Crown relies upon evidence of a person criminally concerned in the commission of he offence, the jury should be directed that it would be dangerous to convict on the uncorroborated evidence of an accomplice (see Regina v Chen (2002) 130 A Crim R 300 at 324, para [58], expressly approved in Regina v Ngo (2003) 57 NSWLR 55 at para [188]). However recently in Kanaan [2006] NSWCCA 109 at para [217] the Court of Criminal Appeal has held that a judge may give a direction in a particular case that it would be dangerous to convict on the uncorroborated evidence of an accomplice, but a judge is never under an obligation to do so.

At common law, one accomplice could not corroborate another: Pollitt v The Queen (1992) 174 CLR 588. However the Court of Criminal Appeal has said that a judge may direct the jury that one accomplice's evidence can give support to the evidence of another. The direction should not use the term 'accomplices': Stewart (2001) 52 NSWLR 301, 124 A Crim R 371 , Quami, Qaumi and Qaumi v Regina [2020] NSWCCA 163 esp at para [104].

Normally an accomplice should not be called unless any proceedings against him for the same offence have been finalized: Booth (1982) NSWLR 847. However, this is a rule of practice, not of law: Ambrosi (2004) 144 A Crim R 67 .

Victims of Sexual Offences.

There is no longer a rule that the evidence of victims of sexual assault and indecent assault must be corroborated. Until very recently, it was the law that if the sole witness supporting the Crown case is the complainant a direction should be given that the jury should consider the evidence of the complainant with great care (Murray (1987) 11 NSWLR 12). It was held that the 'Murray direction' should still be given after the Evidence Act: Vawdrey (1998) 100 A Crim R 488. It has recently been held that such a direction is only necessary where there are features of the case whose significance might not be evidence to a lay jury: AL v Regina [2017] NSWCCA 34 esp at paras [86] and [87].

Under s. 294AA of the Criminal Procedure Act a judge is prohibited from warning a jury that complainants as a class are unreliable, and from warning a jury of the danger of convicting on the uncorroborated evidence of a complainant. It has been held that the effect of this provision is that the 'Murray direction' should not be given in sexual assault cases, although arguably it must still be given in other cases: Ewen v Regina [2015] NSWCCA 117 esp at para [146].

Victims of Sexual Assault: Delay in Complaint

Where there is a long delay in making a complaint, it may be necessary for the jury to be given a 'Longman' direction: Longman v The Queen (1989) 168 CLR 179, 43 A Crim R 463 at 471. However the issues of when the direction is required, and the content of the direction, have been modified by statute. The direction is only to be given if there is sufficient evidence to justify such a warning (s. 165B Evidence Act). If a judge in a sexual assault trial is satisfied that

(a) there is a delay in complaint and

(b) the person on trial has suffered a significant forensic disadvantage because of the delay

the judge may inform the jury (if one of the parties requests) the nature of the disadvantage and the need for caution in determining whether or not to accept the evidence (s. 165B Evidence Act).

As to what is a 'significant' delay' the cases on the meaning of a long delay will be of assistance. In Longman the delay was 20 years. In Doggett v The Queen (2001) 208 CLR 343 the High Court said that there should have been a Longman direction in a case where there was a delay of 12 years. However in Dyers v The Queen (2002) 210 CLR 285 it seems 3 High Court judges (Kirby at para [58], McHugh at [47] and Callinan at [128] to [131]) did not think that there had to be a Longman direction in a case where there was a delay of 5 years. In WSP [2005] NSWCCA 427 it was suggested it may not be necessary to warn the jury that it may be dangerous to convict on that evidence if the delay is not 20 years but for example is 4 years (at para [179]). At the other end of the spectrum of delay, in a case where there was a delay of complaint of about 6 months, it was held that there was no need to give a Longman direction: MDB [2005] NSWCCA 354.

The direction is only to be given if the judge is satisfied that the accused has suffered a significant forensic disadvantage caused by the delay: s. 165B (2) Evidence Act. The death of or inability to find potential witnesses and evidence are given as examples in a non-exhaustive list (s. 165B (7) ). The mere passage of time is not of itself to be regarded as a forensic disadvantage: s. 165B (6). This overturns the common law position, in which it was presumed that the accused had sufferred a detriment, even though no specific detriment could be identified: BWT (2002) 54 NSWLR 241, 129 A Crim R 153 especially at paras [13] to [14].

The duty to give this direction only arises if the accused's lawyer requests such a direction and if a forensic disadvantage to the accused can be established: TO v Regina [2017] NSWCCA 12 esp at para [167].

The direction should be given even when there is corroboration of the complainant: Doggett v The Queen (2001) 208 CLR 343.

Content of the Longman direction

As discussed immediately above, at common law the 'Longman' direction was that where there was a lengthy delay in complaint it was necessary to direct the jury that it would be dangerous to convict unless the jury having scrutinised the evidence with great care was satisfied of its truth and accuracy: Longman v The Queen (1989) 168 CLR 179, 43 A Crim R 463 at 471.

Section 165B (4) of the Evidence Act prohibits a direction that it would be dangerous or unsafe to convict the accused solely because of delay in complaint or the forensic disadvantages suffered as a result of the delay. As a result it is no longer necessary to give a direction that a delay in complaint will not require the jury that it may be dangerous to convict the accused: TJ v Regina [2009] NSWCCA 257.

If the judge on application of any party is satisfied that the accused has suffered a significant forensic disadvantage because of the consequences of delay, the court must inform the jury:

• of the nature of the disadvantage and
• the need to take that disadvantage into account in considering the evidence (s. 165B(2) Evidence Act).

It may be that the directions should still include a direction to scrutinise the evidence of the complainant with great care.

It appears it is not necessary for the trial judge to refer to the word 'warning': TJ v Regina [2009] NSWCCA 257 per McCallum and Hidden JJ, McClellan CJ at CL dissenting.

The jury should be told of any difficulties caused by the delay to the defence: Johnston (1998) 45 NSWLR 362, Crampton (2000) 206 CLR 161.

If a Longman direction is given, the direction should not refer to difficulties suffered by both the Crown and the accused because of the delay. It should only refer to difficulties suffered by the accused: Folli [2001] NSWCCA 531 esp at para [22], Erohin [2006] NSWCCA 102 at para [86].

Other Types of Cases where there is a Long Delay
If there is a long delay in a non-sexual assault case, and the accused suffers a disadvantage such as the loss of exhibits, there should be a Longman type direction. A model of such a direction was given in Slattery [2002] NSWCCA 367 which included the following:

See also Heuston (2003) 140 A Crim R 422. If the judge warns the jury he should not say that he is obliged by the law to do so: Williams [1988] VR 261.

Prisoner Informants.
At common law it was necessary for the judge to warn the jury that convicting partly on the basis of a confession to a fellow prisoner is dangerous unless there is independent evidence substantially confirming the confession: Pollitt v The Queen (1992) 174 CLR 558, 66 ALJR 613, (1992) 62 A Crim R 190, Clough (1992) 28 NSWLR 396, 64 A Crim R 451, esp at 461. The direction should be given if the prison informer gives evidence suggesting involvement in a crime other than a confession: Herring (1994) 74 A Crim R 72. However it has been held that under the Evidence Act, although a judge may direct the jury that it is dangerous to convict, a judge is not obliged to do so: Robinson (2006) 162 A Crim R 88 .

When calling a witness who has been given a discount on sentence for giving evidence, the extent of the discount is admissible, and indeed the Crown should lead evidence of the extent of the discount: Sullivan [2003] NSWCCA 100.

The direction should not be given in relation to evidence called by the defence of a confession which exculpates the accused: Ayoub [2004] NSWCCA 209, but for the contrary view see Johnston [2004] NSWCCA 58. It is submitted that the correct view is that expressed in Ayoub.

Police Verbals

As to evidence of verbal admissions to police, see the section on Verbals, above.This section does not apply to police surveillance evidence (Lau (1998) 105 A Crim R 167).

Requirements of Corroboration.

If a judge decides to give a corroboration direction, the following rules apply to it.

Corroboration must be independent evidence both that the crime was committed and that the accused committed it: Baskerville [1916] 2 KB 658. The jury must be told this: Hayler and Henry (1988) 39 A Crim R 374. It is not necessary that each piece of evidence satisfies both requirements: Lindsay (1977) 18 SASR 103.

Corroboration evidence must strengthen the evidence confirming the guilt of the accused. It need not establish the proposition beyond reasonable doubt: Doney v The Queen (1990) 171 CLR 207, 65 ALJR 45, 50 A Crim R 157. The evidence must be more consistent with the guilt of the accused than with his innocence, even if it is consistent with both versions: Scruby (1952) 55 WLR 1, Stephenson (1978) 18 SASR 381, and Goonan (1993) 69 A Crim R 338.

Other Types of Corroboration.
Corroboration may be constituted by other types of evidence:

• opportunity: Colless (1964) 84 WN (Pt 1) 55
• distress, although this is of little weight: Byczko (1977) 17 SASR 460, Grattan [2005] NSWCCA 306
• lies (see Chapter 1)
• silence out of court, but probably not in court (see chapter 1)
• similar fact evidence
• admissions

Early Complaint.
This is not corroboration because it is not independent evidence but it is admissible. In every case the jury should be told that complaint is not corroboration: Doyle (NSW CCA 13/4/93, (1993) PD [90].

Mutual Corroboration.
The evidence of an unsworn child can be corroborated by the evidence of a sworn child and vice versa: Hester [1973] AC 296 and Kilbourne [1973] AC 729. However the following types of witness can't corroborate each other: accomplices (Kilbourne, Lamb [1975] Qd R 296 and Rigney (1975) 12 SASR 30), victims of sexual assault (Kehgias [1985] VR 107) and prisoners: Pollitt v The Queen (1992) 174 CLR 558, 62 A Crim R 190, Clough (1992) 64 A Crim R 451, esp at 461.

Directions on Corroboration.
The judge should direct the jury on what is meant by corroboration (Adams and Ross [1965] Qd R 255) and relate it to the evidence (Medcraft [1982] WAR 33). The jury should be told what is capable of amounting to corroboration: Duke (1979) 22 SASR 46. The jury should be told why it is dangerous to rely on the uncorroborated evidence of an accomplice: Button (1991) 5 A Crim R 1 (Qld CCA).

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