EVIDENCE
EVIDENCE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
Contents Preliminary | Competence & Compellability Examination in chief | Cross-Examination Views | Relevance Hearsay Hearsay Hearsay Opinion Opinion Admissions Admissions Admissions Admissions Tendency & Coincidence Tendency Credibility Credibility Character of the accused Discretionary and mandatory exclusions (135 | 136 | 137) Improperly/illegally obtained evidence (138) | Cautioning (139) Standards of proof | Judicial notice Judicial notice | Warnings Warnings | Inferences Inferences Voir Dire | Dispensing with rules | Leave
EVIDENCE ACT 1995 (NSW) PRELIMINARY MATTERS Ch 1 (ss 1-11) 8, 9: Act does not affect any statute, law, or equity, except insofar Act provides expressly or by necessary intendment 11: Court retains inherent power to control proceedings, including controlling abuse of process Criminal Appeal Rules r 4: No direction, omission to direct, or decision as to the admission or rejection of evidence, given by the Judge presiding at the trial, shall, without the leave of the Court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal [r 4 is applied strictly: Picken]
ADDUCING EVIDENCE Ch 2 (ss 12-54) PT 2.1: DIV 1: COMPETENCE AND COMPELLABILITY (to be determined on voir dire) o 12: Presumption of competency, and that competent persons are compellable o 13: (1) Lack of capacity (understanding, answers); (2) incompetent re fact x, but not fact y; (3) persons must understand obligation to give truthful evidence; (4) sworn and unsworn evidence; (5) if not competent, can give unsworn evidence if court has told the person; (a) that it is important to tell the truth; and (b) that he or she may be asked questions that he or she does not know, or cannot remember, and that he or she should tell the court if this occurs; and (c) that he/she may be asked questions that suggest certain statements are true/untrue and he/she should agree with the statements that he/she believes are true and feel no pressure to agree with statements they believe are untrue (6) presumption that person not incompetent because of s 13; (8) death of witness; (9) court may inform itself as it thinks fit. SH v The Queen: A child isn’t automatically incompetent The Queen v GW: Judge must be affirmatively satisfied that the witness doesn’t have the capacity to give sworn evidence o 14: Person is not compellable if (a) would cause substantial cost or delay; and (b) other adequate evidence available o 15: Queen, G-G, Governor, Administrator, foreign head of state = not compellable; HoR or senate = not compellable, if would be prevented from attending sitting, joint sitting, or committee o 16: judge or juror not competent in the proceeding o 17: Compellability of accused and associated defendants in criminal proceedings o 18: Compellability of accused's spouse, de facto, parent, child in criminal proceedings. (2) May object (6) must not be required to give the evidence if court finds (a) there is a likelihood of harm (b) nature and extent of that harm outweighs desirability of having the evidence given. (7) without limiting, court to consider: (a) nature/gravity of offence (b) substance/importance of evidence (c) any other evidence available (d) nature of the relationship (e) whether have to disclose confidential matter o 20: Comments on failure to give evidence during criminal proceedings for an indictable offence – may comment but mustn’t suggest failed to give evidence because D had (or believed by D/spouse etc) to have committed offence, unless made by another D in the proceeding. PT 2.1: DIV 2: OATHS AND AFFIRMATIONS 21, 22: sworn evidence to be on oath or affirmation; interpreters to act on oath or affirmation 23: witness or interpreter may elect between oath or affirmation 24, 24A: religious text need not be used; person may take oath despite not believing in a god PT 2.1: DIV 3: GENERAL RULES ABOUT GIVING EVIDENCE 26: Court has general power to control (a) way witnesses are questioned; (b) production and use of documents and things in connection therewith; (c) order in which parties may question witnesses; (d) presence and behaviour of any person in connection with question 27: Party may question any witness, except as provided by Act 28: Unless court otherwise directs, order: (a) cross-examination follows examination-in-chief; (b) re-examination does not occur until all other parties have cross-examined 29: (1) party may question in any way it thinks fit, except as precluded or directed by Act or court; (2) court may on motion or application direct witness give evidence as narrative, in whole or part; (4) evidence may be given in form of charts, summaries or other explanatory material if it would be likely to aid in comprehension Cases: o FB v The Queen: Role of judge generally limited to remove apparent ambiguities, ensure issues are clarified and justice dispensed within reasonable limits of efficiency. o R v Esposito: Cannot become an advocate for one side. o Ryland: Intervention for clarifying uncertainty is permissible 192 – Leave: Without limiting the matters that court may take into account, it is to take into account: (a) extent to which likely to add unduly to, or to shorten, the length of the hearing; and (b) extent to which to do so would be unfair to a party or to a witness; and (c) importance of the evidence in relation to which leave sought (d) nature of the proceeding; and (e) power (if any) of court to adjourn the hearing/make another order/give direction
PT 3.2: HEARSAY
59: (1) Evidence of a 'previous representation' made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed the person intended to assert by the representation. (2A) For purposes of determining under ss1 whether it can be reasonably supposed that the person intended to assert a particular representation, the court may have regard to the circumstances in which the representation was made. EA Dictionary: 'representation' = express, implied, oral, writing; inferred from conduct; ones not intended to be, or in fact, seen/communicated. Non-Hearsay: Evidence being adduced that is not intended to prove the truth of the contents of the representation, the evidence does not have a hearsay purpose. Evidence of proof of a conversation (Subramanium; Kamleh) Assertion is unintended (Walton v The Queen). 60: Exception: dual relevance: (1) Hearsay rule does not apply to evidence of a 'previous representation' 'admitted' because it is 'relevant' for a purpose 'other than proof of an asserted fact'; (2) this applies whether or not the representor had 'personal knowledge' of the asserted fact [cf. Lee]; (3) s 60(1) does not apply to criminal proceedings to evidence of an admission. o Adam: Credibility purposes o Lawson: Basis of expert report o R v Macreal: In contract, proving the terms of the agreement being formed (formation) rather than intention to carry it out. o Quick v Stoland: Despite being admissible under s 60 for the hearsay purpose, evidence may require limiting under s 136 where the evidence involves contested/unreliable facts. o Jango v NT: Footnotes and appendices of expert opinion report were relevant for non-hearsay purpose under s 60, viz., to show reasoning process and factual basis of report. Parties agreed to s 136 direction. 61: Hearsay exceptions depend upon competency (s13(1)) 62: (1) reference to a previous representation that was made by a person who had personal knowledge of an asserted fact. (2) person has personal knowledge of the asserted fact if his/her knowledge of the fact was/might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact. (3) purposes of s66A, a person has personal knowledge of the asserted fact if it is a fact about the person’s health, feelings, sensations, intention, knowledge or state of mind. First-hand hearsay exceptions:
Is maker available? Cl 4(2): (a) dead; (b) not competent; (c) unlawful for them; (d) Act prohibits; (e) all reasonable steps taken to find and/or compel, without success.
PT 3.6: TENDENCY + COINCIDENCE Tendency = pattern of behaviour | Coincidence = two events cannot be taken as independent (RHB)
Rule: Neither tendency (s 97) nor coincidence (s 98) evidence is admissible, unless there is reasonable notice and the evidence if of 'significant probative value.’ o IMM v The Queen HCA 2016: When assessing whether tendency/coincidence evidence has ‘significant probative value’, there must be a focus on the nature of the fact(s) in issue to which the evidence is relevant and whether the evidence may have significance or importance in establishing those fact(s). Tendency evidence emanating solely from the complainant is unlikely to have that character The existence of alternative explanations for both T/C evidence will bear on the assessment of whether the evidence has that character (while a possibility of joint concoction or contamination will not deprive such evidence of probative value, that does not mean that such a risk is immaterial to the determination of whether the evidence has significance). o AE v The Queen: inadmissible: D charged with sexual assault of V1 (9yrs, daughter) and V2 (11yrs, stepdaughter). On tendency, risk of concoction could not be excluded as V1/V2 were in constant contact. On coincidence, similarities were 'unremarkable' and common to CSA offences. o RHB: admissible tendency: D pleaded guilty to offences against V1/2 (daughters). Later, D was charged for offences against V3 (granddaughter). Proof that D committed similar offences against V1/V2 (female lineal descendants; at home; risk of detection) had significant probative value in rebutting D's suggestion that the acts were 'accidental' or 'innocent'. Contamination did not arise, as D had pleaded guilty, but it would have gone to weight (and hence jury), not to admissibility. S98 Test is whether the evidence is capable, to a significant degree, of rationally affecting the assessment of the probability of a fact in issue. The focus is on the capacity of the evidence to have this affect. Test for tendency evidence is one of fact and degree tested on the facts and circumstances of the particular case. o R v Zhang: coincidence: Process described of the EA (a) judge is satisfied that 2 ore more events are substantially similar and relevantly similar and/or that the circumstances in which they are alleged to have occurred are substantially similar; and (b) evidence would, either by itself or having regard to other evidence, have significant probative value. o DSJ: coincidence: D charged with insider trading, and coincidence evidence of numerous profitable deals. 'significant probative value' = whether there is a 'real possibility' of an alternate explanation inconsistent with guilt. Court should consider alternative explanations/inferences. Here, there was the possibility D was tipped off without inside information; possibility communications were social/recreational/informal. Question is whether possibility of another explanation deprives coincidence evidence of capacity to significantly prove Crown case. However, court assesses capacity of evidence; it does not engage in factfinding or assess weight/reliability. o Jacara: inadmissible: D sued for misleading representations and P argued tendency to make such representations based on evidence from W1-5. No significant probative value: time gaps (4 -12mths), discrepancies and differences (some received percentages, some vague references to substantial increase in customers); court considered capacity/cogency of evidence to support inferences sought. Evidence of a system will not necessarily give rise to a tendency. o Trifunovski (No 4): person = corporation Significant probative value: o More than just relevance, but less than a substantial degree of relevance (DSJ) o Significance of the probative value depends on the nature of the fact in issue to which it is relevant, and the importance of the evidence in establishing that fact (R v Lockyer) o Significance defined as important or of consequence (R v Lockyer) o Factors: Number of occasions relied upon (RHB) Time gap between occasions Degree of simplicity of alleged conduct/tendency Possible to establish a pattern of conduct or modus operandi in the similar circumstances one of the most powerful examples of T/C evidence (Ellis) Whether tendency evidence is disputed (R v AE) 94: Exception: ss 97, 98 does not apply to evidence relating only to credibility of a witness 95: Dual relevance: if evidence is inadmissible under Pt 3.6 [ss 94-101], but admissible and relevant for some other purpose, it still cannot be used for a tendency or coincidence purpose [cf. 60, 77] 96: reference to doing an act includes a reference to failing to do that act 99: tendency notice and coincidence notice requirements 100: Court may dispense with notice requirements 101: criminal: tendency and coincidence evidence adduced by prosecution is inadmissible, unless 'probative value' 'substantially outweighs' any 'prejudicial effect' it may have on D. o Ellis: admissible: D charged with 11 counts of breaking and entering. Coincidence evidence led: all small commercial outlets, similar modus operandi (breaking glass without breaking). Court held that test is s 101, not Pfennig: whether probative value 'substantially' outweighs; it is a balancing exercise. o AE: V2's evidence could not be used in prosecution of offences against V1. There was a real risk of unfair prejudice: V2 gave a long account of abuse, whereas V1 complained of one incident. It is not wrong to consider the possibility of joint concoction when applying the legislative test. o Velkoski v R: Neither T/C evidence requires proof, as a condition of admissibility of ‘striking similarity.’ It is the degree of similarity of the operative features that gives the T evidence its strength. Concoction needs to be raised by D and negatived by Crown. Reasonably possible that concocted = inadmissible. o IMM HCA 2016: Significance of risk of joint concoction to application of s101(2) should be left to an occasion where it is raised in a concrete factual setting. Common law test: admissible only where the evidence is so probative that, if accepted, it bears no reasonable explanation other than inculpation of D: Pfennig
PT 3.7: CREDIBILITY
101A: Is the evidence relevant only because it affects the assessment of the credibility of a witness, OR is it relevant for a credibility purpose and another purpose for which it is not admissible? If yes to either, it is credibility evidence. 102: Credibility evidence is not admissible o EA Dictionary: 'credibility of a witness' = any part or all of W's evidence; includes W's ability to observe or remember facts and events [e.g., capacity and opportunity; bias or motive; recent convictions relating to honesty; prior inconsistent/consistent statements; internal inconsistencies in evidence etc] o Palmer: Asking D 'why would the complainant lie' invites jury to accept V's evidence, unless some positive answer is given, thereby deflecting them from fact Crown bears legal burden BRD. McHugh J dissented and noted the 'indistinct and unhelpful' line between evidence relevant to credit and evidence relevant to a fact in issue. o Nicholls: McHugh J (minority) argued that where a circumstance affecting credibility is so inextricably connected with a fact in issue that it will probably determine that fact, a trial judge should generally admit evidence of that circumstance. Hargraves: Inviting a jury to test the evidence of D according to the interest that D has in the outcome of the trial, or suggesting D's evidence should be more closely scrutinised because of this interest, is impermissible. 103: Exception: (1) s 102 does not apply to evidence adduced in cross-examination (incl. S 38) if evidence could 'substantially affect' assessment of the credibility of the witness. (2) 'substantially affect' = non- exhaustively, consider (a) knowingly or reckless made false representation when under obligation to tell truth; (b) period that has elapsed since events to which evidence relates occurred. o STA v Brown: admissible: evidence that P (negligence claim) may have exaggerated and lied about damage to her teeth could have had substantial probative value. It could have led to other concessions. 104: criminal: protections for accused: (2) an accused must not be cross-examined about a matter relevant to his/her credibility, unless court gives s 192 leave. (3) leave is not required re: (a) whether accused is biased or has motive to lie; (b) whether accused is or was unable to be aware of or recall matters to which his/her evidence relates; (c) whether accused has made a prior inconsistent statement [cf. Ss 43, 45]; (4) threshold grounds for refusing leave. 106: Exception: evidence in rebuttal of denials: (1) credibility rule does not apply to evidence relevant to W's credibility adduced otherwise than from W if: substance of evidence was put to W in X and W denied or did not admit or agree to the substance of the evidence; AND court gives s 192 leave. [cf. 43, 44] (2) leave is not required if evidence tends to prove (a) bias or motive for untruthful; (b) conviction; (c) prior inconsistent statement; (d) unable to be aware of matters; (e) knowingly/recklessly made false representation while under obligation under law. o Col v The Queen: s106 applied where contents of statements contained a PIS. 108: Exception: re-establishing credibility and supporting one's witness in re-examination: (1) credibility rule does not apply to evidence adduced in re-examination (cf 39); (3) credibility rule does not apply to evidence of a prior consistent statement of a witness if (a) evidence of a prior inconsistent statement of W admitted; or (b) is or will be suggested W's evidence is fabricated/re-constructed; and court gives s 192 leave. o Ngo: Evidence from W1/W2 (accomplices who made plea bargain) intended to boost the credibility by explaining why they went to the police was inadmissible credibility evidence. It could only be led in reexamination (s 108(1)) provided anticipated attack on their credit is made (s 39). o Whitmore: Evidence of early complaint of V to W was credibility evidence. It would be admissible as a prior consistent statement if D suggested (expressly or impliedly) that W's evidence had been fabricated, reconstructed, or was the result of suggestion. However, mere denial by D of the charge was not an attack on W's credit. o Graham: Court held that disclosure of V to W was inadmissible hearsay and not fresh in the memory. Crown sought to tender it to support V, but it was prima facie credibility evidence. Could it be admissible under s 108(e)? No. D vehemently denied the assaults. While this may well have amounted to a suggestion that V's/W's evidence was fabricated, s 108(3) is discretionary. The evidence must be relevant to a witness' credibility, here, a suggestion of fabrication. But the issue did not loom large in the trial, and it is not clear that disclosure 6yrs later to W could resolve the issue of fabrication. o Nikolaidas: Before seeking leave, you must establish that the evidence of PIS has been admitted or that it was suggested that the evidence is fabricated or reconstructed. Then look at s192 to determine whether leave should be given. o Papokosmas: Rejected argument that s 136 should be applied to limit complaint evidence to prevent its hearsay use.
Contents Preliminary | Competence & Compellability Examination in chief | Cross-Examination Views | Relevance Hearsay Hearsay Hearsay Opinion Opinion Admissions Admissions Admissions Admissions Tendency & Coincidence Tendency Credibility Credibility Character of the accused Discretionary and mandatory exclusions (135 | 136 | 137) Improperly/illegally obtained evidence (138) | Cautioning (139) Standards of proof | Judicial notice Judicial notice | Warnings Warnings | Inferences Inferences Voir Dire | Dispensing with rules | Leave
EVIDENCE ACT 1995 (NSW) PRELIMINARY MATTERS Ch 1 (ss 1-11) 8, 9: Act does not affect any statute, law, or equity, except insofar Act provides expressly or by necessary intendment 11: Court retains inherent power to control proceedings, including controlling abuse of process Criminal Appeal Rules r 4: No direction, omission to direct, or decision as to the admission or rejection of evidence, given by the Judge presiding at the trial, shall, without the leave of the Court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal [r 4 is applied strictly: Picken]
ADDUCING EVIDENCE Ch 2 (ss 12-54) PT 2.1: DIV 1: COMPETENCE AND COMPELLABILITY (to be determined on voir dire) o 12: Presumption of competency, and that competent persons are compellable o 13: (1) Lack of capacity (understanding, answers); (2) incompetent re fact x, but not fact y; (3) persons must understand obligation to give truthful evidence; (4) sworn and unsworn evidence; (5) if not competent, can give unsworn evidence if court has told the person; (a) that it is important to tell the truth; and (b) that he or she may be asked questions that he or she does not know, or cannot remember, and that he or she should tell the court if this occurs; and (c) that he/she may be asked questions that suggest certain statements are true/untrue and he/she should agree with the statements that he/she believes are true and feel no pressure to agree with statements they believe are untrue (6) presumption that person not incompetent because of s 13; (8) death of witness; (9) court may inform itself as it thinks fit. SH v The Queen: A child isn’t automatically incompetent The Queen v GW: Judge must be affirmatively satisfied that the witness doesn’t have the capacity to give sworn evidence o 14: Person is not compellable if (a) would cause substantial cost or delay; and (b) other adequate evidence available o 15: Queen, G-G, Governor, Administrator, foreign head of state = not compellable; HoR or senate = not compellable, if would be prevented from attending sitting, joint sitting, or committee o 16: judge or juror not competent in the proceeding o 17: Compellability of accused and associated defendants in criminal proceedings o 18: Compellability of accused's spouse, de facto, parent, child in criminal proceedings. (2) May object (6) must not be required to give the evidence if court finds (a) there is a likelihood of harm (b) nature and extent of that harm outweighs desirability of having the evidence given. (7) without limiting, court to consider: (a) nature/gravity of offence (b) substance/importance of evidence (c) any other evidence available (d) nature of the relationship (e) whether have to disclose confidential matter o 20: Comments on failure to give evidence during criminal proceedings for an indictable offence – may comment but mustn’t suggest failed to give evidence because D had (or believed by D/spouse etc) to have committed offence, unless made by another D in the proceeding. PT 2.1: DIV 2: OATHS AND AFFIRMATIONS 21, 22: sworn evidence to be on oath or affirmation; interpreters to act on oath or affirmation 23: witness or interpreter may elect between oath or affirmation 24, 24A: religious text need not be used; person may take oath despite not believing in a god PT 2.1: DIV 3: GENERAL RULES ABOUT GIVING EVIDENCE 26: Court has general power to control (a) way witnesses are questioned; (b) production and use of documents and things in connection therewith; (c) order in which parties may question witnesses; (d) presence and behaviour of any person in connection with question 27: Party may question any witness, except as provided by Act 28: Unless court otherwise directs, order: (a) cross-examination follows examination-in-chief; (b) re-examination does not occur until all other parties have cross-examined 29: (1) party may question in any way it thinks fit, except as precluded or directed by Act or court; (2) court may on motion or application direct witness give evidence as narrative, in whole or part; (4) evidence may be given in form of charts, summaries or other explanatory material if it would be likely to aid in comprehension Cases: o FB v The Queen: Role of judge generally limited to remove apparent ambiguities, ensure issues are clarified and justice dispensed within reasonable limits of efficiency. o R v Esposito: Cannot become an advocate for one side. o Ryland: Intervention for clarifying uncertainty is permissible 192 – Leave: Without limiting the matters that court may take into account, it is to take into account: (a) extent to which likely to add unduly to, or to shorten, the length of the hearing; and (b) extent to which to do so would be unfair to a party or to a witness; and (c) importance of the evidence in relation to which leave sought (d) nature of the proceeding; and (e) power (if any) of court to adjourn the hearing/make another order/give direction
PT 3.2: HEARSAY
59: (1) Evidence of a 'previous representation' made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed the person intended to assert by the representation. (2A) For purposes of determining under ss1 whether it can be reasonably supposed that the person intended to assert a particular representation, the court may have regard to the circumstances in which the representation was made. EA Dictionary: 'representation' = express, implied, oral, writing; inferred from conduct; ones not intended to be, or in fact, seen/communicated. Non-Hearsay: Evidence being adduced that is not intended to prove the truth of the contents of the representation, the evidence does not have a hearsay purpose. Evidence of proof of a conversation (Subramanium; Kamleh) Assertion is unintended (Walton v The Queen). 60: Exception: dual relevance: (1) Hearsay rule does not apply to evidence of a 'previous representation' 'admitted' because it is 'relevant' for a purpose 'other than proof of an asserted fact'; (2) this applies whether or not the representor had 'personal knowledge' of the asserted fact [cf. Lee]; (3) s 60(1) does not apply to criminal proceedings to evidence of an admission. o Adam: Credibility purposes o Lawson: Basis of expert report o R v Macreal: In contract, proving the terms of the agreement being formed (formation) rather than intention to carry it out. o Quick v Stoland: Despite being admissible under s 60 for the hearsay purpose, evidence may require limiting under s 136 where the evidence involves contested/unreliable facts. o Jango v NT: Footnotes and appendices of expert opinion report were relevant for non-hearsay purpose under s 60, viz., to show reasoning process and factual basis of report. Parties agreed to s 136 direction. 61: Hearsay exceptions depend upon competency (s13(1)) 62: (1) reference to a previous representation that was made by a person who had personal knowledge of an asserted fact. (2) person has personal knowledge of the asserted fact if his/her knowledge of the fact was/might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact. (3) purposes of s66A, a person has personal knowledge of the asserted fact if it is a fact about the person’s health, feelings, sensations, intention, knowledge or state of mind. First-hand hearsay exceptions:
Is maker available? Cl 4(2): (a) dead; (b) not competent; (c) unlawful for them; (d) Act prohibits; (e) all reasonable steps taken to find and/or compel, without success.
PT 3.6: TENDENCY + COINCIDENCE Tendency = pattern of behaviour | Coincidence = two events cannot be taken as independent (RHB)
Rule: Neither tendency (s 97) nor coincidence (s 98) evidence is admissible, unless there is reasonable notice and the evidence if of 'significant probative value.’ o IMM v The Queen HCA 2016: When assessing whether tendency/coincidence evidence has ‘significant probative value’, there must be a focus on the nature of the fact(s) in issue to which the evidence is relevant and whether the evidence may have significance or importance in establishing those fact(s). Tendency evidence emanating solely from the complainant is unlikely to have that character The existence of alternative explanations for both T/C evidence will bear on the assessment of whether the evidence has that character (while a possibility of joint concoction or contamination will not deprive such evidence of probative value, that does not mean that such a risk is immaterial to the determination of whether the evidence has significance). o AE v The Queen: inadmissible: D charged with sexual assault of V1 (9yrs, daughter) and V2 (11yrs, stepdaughter). On tendency, risk of concoction could not be excluded as V1/V2 were in constant contact. On coincidence, similarities were 'unremarkable' and common to CSA offences. o RHB: admissible tendency: D pleaded guilty to offences against V1/2 (daughters). Later, D was charged for offences against V3 (granddaughter). Proof that D committed similar offences against V1/V2 (female lineal descendants; at home; risk of detection) had significant probative value in rebutting D's suggestion that the acts were 'accidental' or 'innocent'. Contamination did not arise, as D had pleaded guilty, but it would have gone to weight (and hence jury), not to admissibility. S98 Test is whether the evidence is capable, to a significant degree, of rationally affecting the assessment of the probability of a fact in issue. The focus is on the capacity of the evidence to have this affect. Test for tendency evidence is one of fact and degree tested on the facts and circumstances of the particular case. o R v Zhang: coincidence: Process described of the EA (a) judge is satisfied that 2 ore more events are substantially similar and relevantly similar and/or that the circumstances in which they are alleged to have occurred are substantially similar; and (b) evidence would, either by itself or having regard to other evidence, have significant probative value. o DSJ: coincidence: D charged with insider trading, and coincidence evidence of numerous profitable deals. 'significant probative value' = whether there is a 'real possibility' of an alternate explanation inconsistent with guilt. Court should consider alternative explanations/inferences. Here, there was the possibility D was tipped off without inside information; possibility communications were social/recreational/informal. Question is whether possibility of another explanation deprives coincidence evidence of capacity to significantly prove Crown case. However, court assesses capacity of evidence; it does not engage in factfinding or assess weight/reliability. o Jacara: inadmissible: D sued for misleading representations and P argued tendency to make such representations based on evidence from W1-5. No significant probative value: time gaps (4 -12mths), discrepancies and differences (some received percentages, some vague references to substantial increase in customers); court considered capacity/cogency of evidence to support inferences sought. Evidence of a system will not necessarily give rise to a tendency. o Trifunovski (No 4): person = corporation Significant probative value: o More than just relevance, but less than a substantial degree of relevance (DSJ) o Significance of the probative value depends on the nature of the fact in issue to which it is relevant, and the importance of the evidence in establishing that fact (R v Lockyer) o Significance defined as important or of consequence (R v Lockyer) o Factors: Number of occasions relied upon (RHB) Time gap between occasions Degree of simplicity of alleged conduct/tendency Possible to establish a pattern of conduct or modus operandi in the similar circumstances one of the most powerful examples of T/C evidence (Ellis) Whether tendency evidence is disputed (R v AE) 94: Exception: ss 97, 98 does not apply to evidence relating only to credibility of a witness 95: Dual relevance: if evidence is inadmissible under Pt 3.6 [ss 94-101], but admissible and relevant for some other purpose, it still cannot be used for a tendency or coincidence purpose [cf. 60, 77] 96: reference to doing an act includes a reference to failing to do that act 99: tendency notice and coincidence notice requirements 100: Court may dispense with notice requirements 101: criminal: tendency and coincidence evidence adduced by prosecution is inadmissible, unless 'probative value' 'substantially outweighs' any 'prejudicial effect' it may have on D. o Ellis: admissible: D charged with 11 counts of breaking and entering. Coincidence evidence led: all small commercial outlets, similar modus operandi (breaking glass without breaking). Court held that test is s 101, not Pfennig: whether probative value 'substantially' outweighs; it is a balancing exercise. o AE: V2's evidence could not be used in prosecution of offences against V1. There was a real risk of unfair prejudice: V2 gave a long account of abuse, whereas V1 complained of one incident. It is not wrong to consider the possibility of joint concoction when applying the legislative test. o Velkoski v R: Neither T/C evidence requires proof, as a condition of admissibility of ‘striking similarity.’ It is the degree of similarity of the operative features that gives the T evidence its strength. Concoction needs to be raised by D and negatived by Crown. Reasonably possible that concocted = inadmissible. o IMM HCA 2016: Significance of risk of joint concoction to application of s101(2) should be left to an occasion where it is raised in a concrete factual setting. Common law test: admissible only where the evidence is so probative that, if accepted, it bears no reasonable explanation other than inculpation of D: Pfennig
PT 3.7: CREDIBILITY
101A: Is the evidence relevant only because it affects the assessment of the credibility of a witness, OR is it relevant for a credibility purpose and another purpose for which it is not admissible? If yes to either, it is credibility evidence. 102: Credibility evidence is not admissible o EA Dictionary: 'credibility of a witness' = any part or all of W's evidence; includes W's ability to observe or remember facts and events [e.g., capacity and opportunity; bias or motive; recent convictions relating to honesty; prior inconsistent/consistent statements; internal inconsistencies in evidence etc] o Palmer: Asking D 'why would the complainant lie' invites jury to accept V's evidence, unless some positive answer is given, thereby deflecting them from fact Crown bears legal burden BRD. McHugh J dissented and noted the 'indistinct and unhelpful' line between evidence relevant to credit and evidence relevant to a fact in issue. o Nicholls: McHugh J (minority) argued that where a circumstance affecting credibility is so inextricably connected with a fact in issue that it will probably determine that fact, a trial judge should generally admit evidence of that circumstance. Hargraves: Inviting a jury to test the evidence of D according to the interest that D has in the outcome of the trial, or suggesting D's evidence should be more closely scrutinised because of this interest, is impermissible. 103: Exception: (1) s 102 does not apply to evidence adduced in cross-examination (incl. S 38) if evidence could 'substantially affect' assessment of the credibility of the witness. (2) 'substantially affect' = non- exhaustively, consider (a) knowingly or reckless made false representation when under obligation to tell truth; (b) period that has elapsed since events to which evidence relates occurred. o STA v Brown: admissible: evidence that P (negligence claim) may have exaggerated and lied about damage to her teeth could have had substantial probative value. It could have led to other concessions. 104: criminal: protections for accused: (2) an accused must not be cross-examined about a matter relevant to his/her credibility, unless court gives s 192 leave. (3) leave is not required re: (a) whether accused is biased or has motive to lie; (b) whether accused is or was unable to be aware of or recall matters to which his/her evidence relates; (c) whether accused has made a prior inconsistent statement [cf. Ss 43, 45]; (4) threshold grounds for refusing leave. 106: Exception: evidence in rebuttal of denials: (1) credibility rule does not apply to evidence relevant to W's credibility adduced otherwise than from W if: substance of evidence was put to W in X and W denied or did not admit or agree to the substance of the evidence; AND court gives s 192 leave. [cf. 43, 44] (2) leave is not required if evidence tends to prove (a) bias or motive for untruthful; (b) conviction; (c) prior inconsistent statement; (d) unable to be aware of matters; (e) knowingly/recklessly made false representation while under obligation under law. o Col v The Queen: s106 applied where contents of statements contained a PIS. 108: Exception: re-establishing credibility and supporting one's witness in re-examination: (1) credibility rule does not apply to evidence adduced in re-examination (cf 39); (3) credibility rule does not apply to evidence of a prior consistent statement of a witness if (a) evidence of a prior inconsistent statement of W admitted; or (b) is or will be suggested W's evidence is fabricated/re-constructed; and court gives s 192 leave. o Ngo: Evidence from W1/W2 (accomplices who made plea bargain) intended to boost the credibility by explaining why they went to the police was inadmissible credibility evidence. It could only be led in reexamination (s 108(1)) provided anticipated attack on their credit is made (s 39). o Whitmore: Evidence of early complaint of V to W was credibility evidence. It would be admissible as a prior consistent statement if D suggested (expressly or impliedly) that W's evidence had been fabricated, reconstructed, or was the result of suggestion. However, mere denial by D of the charge was not an attack on W's credit. o Graham: Court held that disclosure of V to W was inadmissible hearsay and not fresh in the memory. Crown sought to tender it to support V, but it was prima facie credibility evidence. Could it be admissible under s 108(e)? No. D vehemently denied the assaults. While this may well have amounted to a suggestion that V's/W's evidence was fabricated, s 108(3) is discretionary. The evidence must be relevant to a witness' credibility, here, a suggestion of fabrication. But the issue did not loom large in the trial, and it is not clear that disclosure 6yrs later to W could resolve the issue of fabrication. o Nikolaidas: Before seeking leave, you must establish that the evidence of PIS has been admitted or that it was suggested that the evidence is fabricated or reconstructed. Then look at s192 to determine whether leave should be given. o Papokosmas: Rejected argument that s 136 should be applied to limit complaint evidence to prevent its hearsay use.
