Bulletin 35 November 2011
Uniform Evidence Law
Stephen J Odgers SC
· This Bulletin contains highlights of the most significant material to be released in the forthcoming Updates 38 and 39 of the Uniform Evidence Law (Subscription)
Cases referred to in this Bulletin are as follows:
Aitken & Murphy [2011] FamCA 785
Alderman v Zurich[2011] NSWSC 754
Australian Securities and Investments Commission v Rich (2005) 191 FLR 385; 216 ALR 320]
Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd [2011] VSC 477
Environment Protection Authority v Queanbeyan City Council (No 2) [2011] NSWLEC 159
FB v The Queen; R v FB[2011] NSWCCA 217
Ferrall v Blyton [2000] FamCA 1442
Ghebrat v The Queen [2011] VSCA 299
LGM & CAM [2011] FamCAFC 195
Lithgow City Council v Jackson (2011) 85 ALJR 1130; [2011] HCA 36
LS v Director of Public Prosecutions (NSW) [2011] NSWSC 1016
Lym International Pty Ltd v Marcolongo[2011] NSWCA 303
Powercor Australia Ltd v Perry [2011] VSCA 239
R H B v The Queen [2011] VSCA 295
R v Weaven (No 1) [2011] VSC 442
RJ v The Queen [2010] NSWCCA 263
Singh v The Queen [2011] VSCA 263
Singtel Optus Pty Limited v Weston[2011] NSWSC 1083
Song v Ying [2010] NSWCA 237
Tasmania v Lin [2011] TASSC 54
Tasmania v Sudani [2011] TASSC 50
Tofilau v The Queen (2007) 231 CLR 396; [2007] HCA 39
Towercom Pty Ltd v Fahour [2011] VSC 455
Waugh Asset Management v Merrill Lynch [2010] NSWSC 197
Section 13 Competence: lack of capacity
In RJ v The Queen [2010] NSWCCA 263, Campbell JA (Latham J and Price J agreeing) noted at [20] that the test of lack of competence to give sworn evidence “is that the person does not have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence” and then observed that “[m]any a lying witness, and many an unreliable witness, has the capacity to understand that he or she is under that sort of an obligation (and thus is competent to give sworn evidence), even though he or she in fact does not give truthful evidence”. Campbell JA emphasised at [40] that section 21 permits only one exception to the requirement that a witness in a proceeding must either take an oath or make an affirmation before giving evidence:
That exception is if the person “gives unsworn evidence under section 13”. It is possible to give unsworn evidence “under section 13” only if two separate conditions are satisfied. The first is that the presumption of competency to give sworn evidence that arises from section 13(6) has been displaced, through a decision being made that the test for being not competent to give sworn evidence, set out in section 13(3) has been met. In other words, it is possible to give unsworn evidence “under section 13” only if there is material that the judge has considered, on the basis of which the judge has decided that the witness does not have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence. The second condition for giving unsworn evidence “under section 13” is that the judge has informed the witness of the matters in paras (a) (b) and (c) of section 13(5).
Since the trial judge in that case had not addressed the first of these conditions at all, the unsworn evidence contravened s 21 and was not legitimately before the jury (at [42]).
Section 19 Compellability of spouses and others in certain criminal proceedings
Under this provision, section18 (dealing with the compellability of spouses and others in criminal proceedings generally) “does not apply in proceedings for an offence against or referred to in” section279 of the Criminal Procedure Act 1986. In LS v Director of Public Prosecutions (NSW) [2011] NSWSC 1016, Johnson J accepted that s 279 is not an offence-creating provision, so that there cannot be proceedings for an offence “against” s 279 (at [47]). As regards proceedings for an offence “referred to in” that provision, Johnson J held at [56] that this should not be applied literally but understood to only “cover the specific offences dealt with by s 279 involving the compellability of the spouse of an accused person”. Johnson J observed at [71] that s 19 should be amended “so that it provides clearly and simply, and by reference to current legislation, the areas of exception which are to apply to the availability of s 18 of the Act”.
Section 27 Parties may question witnesses
In FB v The Queen; R v FB[2011] NSWCCA 217 Whealy JA observed at [93]:
In civil trials, in the last fifty years in New South Wales, it has become much more common for judges to take an active part in the conduct of cases than was at an earlier time the case. The growth of litigation, the increasing complexity of litigation, and the limited resources of courts and legal aid have made it inevitable that judges must, within reasonable limits, intervene wherever it is necessary to ensure that the issues are clarified and that justice is dispensed within reasonable limits of efficiency.
Whealy JA observed that a similar approach may be taken in criminal proceedings without a jury. As long as the questions are asked in a moderate manner, they may be asked “for the purpose of clarifying the evidence and understanding more precisely the issues at trial” (at [109] – [110]).
Section 55 Relevant evidence
Evidence may be so “ambiguous” that there is no available rational basis on which to conclude that it affects the assessment of the probabilities of the existence of a fact in issue. Thus, for example, in Lithgow City Council v Jackson (2011) 85 ALJR 1130; [2011] HCA 36 the fact in issue was whether a person had fallen over a vertical wall rather than adjoining side walls. Ambulance officers’ records relating to the injured person contained the words: “Fall from 1.5 metres onto concrete”. French CJ, Heydon and Bell JJ in a joint judgment (Gummow J and Crennan J agreeing in separate judgments) observed at [25] – [26] that, because “a fall from one of the non-vertical sides meant a vertical fall of the same distance as a fall from the vertical face”, the representation “was so ambiguous that it could not rationally affect the assessment of the probability of a fall from the vertical head wall”.
Section 56 Relevant evidence to be admissible
· Whether or not an item of evidence is admissible for a particular use will not normally affect whether or not it is admissible for another use. Thus, for example, in Lithgow City Council v Jackson (2011) 85 ALJR 1130; [2011] HCA 36 the High Court considered whether evidence that fell within the business record exception (s 69) to the hearsay rule (s 59) was nonetheless caught by the opinion rule (s 76). French CJ, Heydon and Bell JJ in a joint judgment (Gummow J and Crennan J agreeing in separate judgments) held at [19] that it was:
Section 56(1) contemplates that relevant, ie otherwise admissible, evidence may be excluded by more than one exclusionary rule in Pts 3.2-3.11. One exclusionary rule is the hearsay rule. If evidence satisfies s 69, then by s 69(2) the hearsay rule does not apply. But s 69(2) does not provide that the evidence is admissible. It is only admissible if no other exclusionary rule applies. Section 76 excludes "[e]vidence of an opinion" – not "evidence by a witness of an opinion". There is no indication in any other provision in Pt 3.3 that it operates only in relation to the opinions of witnesses.
· Where evidence is admissible for one use but not admissible for another use, absence of objection will usually be understood to apply to the first use, so that the court should not use the evidence in the second impermissible way (see Lym International Pty Ltd v Marcolongo[2011] NSWCA 303, Campbell JA at [103]). Campbell JA also observed at [103] that, even where no objection has been taken, “it can at least be said that it would be improper for a judge to use, in assessment of the probability of the existence of a fact in issue, evidence that in truth does not rationally affect that probability”.
Section 60 Exception: evidence relevant for a non-hearsay purpose
There is authority that, if a party wishes to rely on a s 60 exception to the hearsay rule, this should be made clear and a ruling should be obtained from the court that the evidence may be used for a hearsay purpose: Ghebrat v The Queen [2011] VSCA 299 at [47]. Such a procedure will suggest consideration of the possible application of s 136 to limit the permissible use that may be made of the evidence.
Section 66 Exception: criminal proceedings if maker available
· Clause4 of Pt2 of the Dictionary defines when a person “is taken not to be available to give evidence about a fact” and clause4(2) provides that if a person does not fall within one of the listed categories of unavailability, “the person is taken to be available to give evidence about the fact”. It is clear that, as a result, there is no requirement that the person remember the “asserted fact”: see Singh v The Queen [2011] VSCA 263 at [10] – [15]. Equally, there is no requirement that the person remember the making of the previous representation (evidence of the representation may be given by another person pursuant to s 66(2)(b)). Of course, the discretions in Part 3.11 may have application in such circumstances.
· The requirement that the occurrence of the asserted fact have been fresh in the memory of the person who made the representation requires consideration of the time when the representation was made, in the light of when the asserted fact was asserted to have occurred. There is no requirement that the person who made the representation have, at the time of the proceeding, any memory, let alone a “fresh” memory, of either the asserted fact or the making of the representation: see Singh v The Queen [2011] VSCA 263 at [16] – [18].
Section 69 Exception: business records
· An invoice found in the records of A purporting to be for goods or services supplied by B to A (and prepared by B) may be a business record of A: see State of Tasmania v Lin [2011] TASSC 54 at [26] – [28].
· In Lithgow City Council v Jackson (2011) 85 ALJR 1130; [2011] HCA 36 French CJ, Heydon and Bell JJ in a joint judgment (Gummow J and Crennan J agreeing in separate judgments) considered the words “saw, heard or otherwise perceived” in s 78(a) and observed at [43] that one of the ordinary meanings of "perceive" is “to observe by one of the five senses of sight, hearing, smell, taste or touch” (citing the first of the two meanings which the Macquarie Dictionary gives, and the third of the meanings given by the Oxford English Dictionary, for "perceive"). They considered that this meaning is supported by the use of the words "saw, heard or otherwise" before "perceived". They also stated that it plainly has this meaning as part of a definition of "personal knowledge of a fact" in s 69(5).
· There is nothing in s69(2) to suggest that the person having the relevant personal knowledge must bear any particular relationship to the enterprise whose business is involved. Thus, in Lithgow City Council v Jackson (2011) 85 ALJR 1130; [2011] HCA 36 French CJ, Heydon and Bell JJ in a joint judgment (Gummow J and Crennan J agreeing in separate judgments) accepted that it would be open to trace a statement in an ambulance officer’s records (about what happened to a person who had fallen and injured himself) to “bystanders”, but the requirement of personal knowledge was not satisfied because “the bystanders did not have personal knowledge of the fall, and could not reasonably be supposed to have had it: … the fall took place before the bystanders arrived”.
· This problem with applying the requirement of personal knowledge to an expression of opinion in a business record was discussed by French CJ, Heydon and Bell JJ in a joint judgment (Gummow J and Crennan J agreeing in separate judgments) in Lithgow City Council v Jackson (2011) 85 ALJR 1130; [2011] HCA 36. In that case, an ambulance officer’s records relating to a person who had fallen and injured himself contained the words: “? Fall from 1.5 metres onto concrete”. French CJ, Heydon and Bell JJ noted authority that "asserted fact" in this provision includes an opinion in relation to a matter of fact and then stated:
But the construction of "asserted fact" to include an opinion in relation to a matter of fact, though convenient, is a little strained. In one sense every person who holds an opinion has personal knowledge of it, and indeed is the only person to have personal knowledge of that person's opinion. But to hold an opinion that the respondent fell in a certain way (or that there is a question about it) is different from having personal knowledge that he fell in that way (or that there is a question about it): that personal knowledge could normally only be derived from seeing or perhaps hearing the event, not by drawing inferences from other circumstances observed some time later. However, it was not argued in this Court that the authorities which state that "asserted fact" includes an opinion in relation to a matter of fact are wrong. It is not necessary further to deal with this point, which the parties did not debate at any stage.
It is regrettable that the issue was not further discussed, because these observations raise more questions than they answer. While it is, on the face of it, accepted that the requirement of “personal knowledge” is not satisfied on the basis that a person who expresses an opinion has personal knowledge of the opinion, the implication that the person must have actually perceived the event about which the opinion is expressed plainly leaves things in an unsatisfactory state (in relation to, for example, expressions of expert opinion).