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- Section 41 Improper questions
- Section 46 Leave to recall witnesses
- Section 55 Relevant evidence
- Section 66 Exception – criminal proceedings if maker available
- Section 76 The opinion rule
- Section 77 Exception – evidence relevant otherwise than as opinion evidence
- Section 79 Exception – opinions based on specialised knowledge
- Section 91 Exclusion of evidence of judgments and convictions
- Section 97 The tendency rule
- Section 98 The coincidence rule
- Section 100 Court may dispense with notice requirements
- Section 128 Privilege in respect of self-incrimination in other proceedings
- Section 131 Exclusion of evidence of settlement negotiations
- Section 141 Criminal proceedings –standard of proof
- Section 165 Unreliable evidence
- Section 165B Delay in prosecution
- Section 191 Agreements as to facts
UPDATED 6 NOVEMBER 2017
Section 41 Improper questions
Adamson J stated in Lets Go Adventures Pty Ltd v Barrett  NSWCA 243 at :
Procedural fairness requires more than merely giving each party an opportunity to be heard. It also requires that each witness be permitted to answer questions without being abused in the process. This is not to say that cross-examination cannot be robust, but it must be fair. The latitude commonly afforded to cross-examiners does not amount to a licence to offend, ridicule or vilify. Fairness requires that no proposition, particularly one which is damaging to the witness, be put without a basis. It also requires that questions be asked one at a time and that cross-examination not be peppered with gratuitous and, as in the present case, insulting, commentary to the witness. It requires that the witness be permitted to finish his or her answer and not be cut off or needlessly interrupted. Where a trial judge fails to intervene to stop such egregious conduct, an impression can be created that the judge is endorsing, or even collaborating, in such conduct.
Section 46 Leave to recall witnesses
Meagher JA of the NSW Court of Appeal has observed in Oneflare Pty Ltd v Chernih  NSWCA 195 at  (Gleeson JA and Leeming JA agreeing):
There are many ways in which a party or other witness might sufficiently be put on notice that their evidence on a particular subject or to a particular effect is challenged as untruthful, and as to the basis of that challenge. Depending on the circumstances, those ways include by pleadings, affidavits or statements of evidence exchanged before the hearing, and opening statements made or exchanged at the commencement of the hearing, as well as by cross-examination.
It was held at  that it was made plain that the truthfulness, not merely the reliability, of the evidence of two witnesses on several matters was challenged and at  that there was no suggestion that there was any particular matter which either witness was not given an opportunity to explain or lead evidence about that was relevant to the issues on which their credibility was challenged. See also Nankivell v Insurance Commission of Western Australia  WASCA 143 at -.
Section 55 Relevant evidence
In R v SG  NSWCCA 202, Bellew J at  observed at  that the use of the word “could” in s 55(1) (“The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding”) means “it is possible that it may”.
Kiefel CJ, Bell, Keane and Edelman JJ observed in Hughes v The Queen  HCA 20 at  that “[t]he facts in issue in a criminal proceeding are those which establish the elements of the offence”.
Section 66 Exception – criminal proceedings if maker available
In Semaan v The Queen; DPP v Semaan  VSCA 261 it was held at  that s 66(3) did not apply where a representation was “made for the purpose of assisting the police to deal with a continuing and dangerous situation”.
Section 76 The opinion rule
Evidence from a senior departmental officer of his knowledge of a practice by which Members of Parliament dealt with government departments is not opinion evidence: Obeid v The Queen  NSWCCA 221 at .
Section 77 Exception – evidence relevant otherwise than as opinion evidence
In Jadwan Pty Ltd v Rae & Partners (A Firm) (No 3)  FCA 1045 it was held at  that representations in three letters were relevant for a distinct purpose other than the proof of the existence of a fact about which the opinion was expressed. They were relevant to prove that the plaintiff was, at the various times those letters had been written, actively pursuing the possibility of constructing a purpose-built nursing home on a greenfield site, which was “a separate and distinct matter upon which [the plaintiff] was put to proof” (at ). In those circumstances, Kerr J observed at , [o]nce evidence is so admitted it becomes evidence for all purposes”. Kerr J at - declined to apply s 136 in respect of the evidence.
Section 79 Exception – opinions based on specialised knowledge
In Taub v The Queen  NSWCCA 198, Simpson JA (Walton J and Button J agreeing) at - confirmed the view of Schmidt J and McCallum J in Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage (2013) 298 ALR 532;  NSWCCA 114 that the approach of Heydon J (to the effect that assumed facts upon which an opinion is based must be proved for the opinion to be admissible) was rejected by the other members of the High Court in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588;  HCA 21.
Section 91 Exclusion of evidence of judgments and convictions
The question was raised by Lee J in Young v Hughes Trueman Pty Ltd (No 4)  FCA 456 whether a finding of a judge hearing a substantive application can be used to determine the liability for costs of a third party, at least if the connection of the third party with the original proceedings was so close that no injustice would be caused by allowing this exception to the general rule (that “[e]vidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding”): see at -.
Section 97 The tendency rule
In Parkinson v Alexander  ACTSC 201, Refshauge J held that a trial had miscarried in circumstances where the magistrate had “reformulated” the tendency that the evidence was to be used to prove and, even if the prosecution had “adopted” the reformulation, the defendant had not been given any notice of the reformulation.
Evidence that a person had a tendency to possess stolen property, simpliciter, without alleging a tendency to knowingly possess stolen property, will have negligible probative value in respect of a charge of stealing other property: Pattison v Tasmania  TASCCA 13 at -.
In Parkinson v Alexander  ACTSC 201, Refshauge J observed at - that it can be “problematic” to use “more recent conduct” to “explain past behaviour” and that there can be considerable difficulty in “arguing tendency retrospectively”.
In Moroccanoil Israel Ltd v Aldi Foods Pty Ltd  FCA 823, Katzmann J considered at  that there had not been reasonable notice because the date when the notice was sent (12 days before the trial was to start) did not provide “a reasonable opportunity to investigate the allegation, interview relevant witnesses, and file evidence”. Further, the description of the tendency in the notice lacked the necessary degree of specificity” and did not “enable the party whose conduct is in question to meet the evidence” (at ).
Section 98 The coincidence rule
The Tasmanian Court of Criminal Appeal has held that a tendency notice did not fulfil the requirements of a coincidence notice, particularly because it did not identify the “events” and the substance of the evidence relating to them, with the consequence that the requirement of notice and the requirement in s 98(1)(a) had not been satisfied: Pattison v Tasmania  TASCCA 13 at .
Section 100 Court may dispense with notice requirements
In Parkinson v Alexander  ACTSC 201, Refshauge J held at - that a trial had miscarried in circumstances where the magistrate had “reformulated” the tendency that the evidence was to be used to prove (for the purposes of determining that the evidence was admissible), the defendant had not been given any notice of the reformulation and there was no basis for excusing the lack of notice, since it had deprived the defendant of the opportunity properly to challenge the tendency finding.
Section 128 Privilege in respect of self-incrimination in other proceedings
In Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union  FCA 550 Bromberg J at - discussed the issue of whether a witness “objects” to giving particular evidence where the witness seeks to give evidence revealing the commission of a criminal offence, but to do so under the protection of a certificate given under this provision. Bromberg J acknowledged that there was “some force” in criticism of the judgment of the NSW Court of Appeal in Song v Ying (2010) 79 NSWLR 442;  NSWCA 237 but followed it on the basis that it was “not plainly wrong”. Accordingly, this provision was not applied to a party to the proceedings who, during examination in chief, “indicated that he was concerned about giving certain evidence because it may ‘incriminate’ him” (at ).
Section 131 Exclusion of evidence of settlement negotiations
The Victorian Court of Appeal has observed that negotiations to settle a criminal proceeding or an anticipated criminal proceeding “are not, save in exceptional circumstances, to be admitted into evidence”, notwithstanding that “such discussions do not fall within” this statutory privilege: Ramjutton v The Queen (2015) 255 A Crim R 576;  VSCA 309 at .
Section 141 Criminal proceedings – standard of proof
Kiefel CJ, Bell, Gageler, Keane, Nettle and Edelman JJ observed in R v Dookheea (2017) 91 ALJR 960;  HCA 36 at  that “a reasonable doubt is not just any doubt that the members of a jury as a reasonable jury might entertain, but is rather what a reasonable jury considers to be a reasonable doubt”. However, it was emphasized at - that, in directing a jury, it is generally speaking undesirable for a trial judge to draw this distinction to the attention of the jury:
[I]t is generally speaking undesirable for a trial judge to contrast reasonable doubt with any doubt. … [I]t is generally speaking unwise for a trial judge to attempt any explication of the concept of reasonable doubt beyond observing that the expression means what it says and that it is for the jury to decide whether they are left with a reasonable doubt (and in certain circumstances explaining that a reasonable doubt does not include fanciful possibilities).
It was said at  to be undesirable to “invite a jury to consider the distinction between reasonable doubt and any doubt” because it “risks obfuscating the jury’s understanding of their task”, a reference to the observation in Green v The Queen (1971) 126 CLR 28 at 33 that the jury is not required to “analyse their own mental processes”, to “submit their processes of mind to objective analysis”. Thus, the trial judge should not encourage the jury to examine the doubts they may have and seek to classify them as either reasonable and real or unreasonable, theoretical and fanciful. On the other hand, the High Court did not disapprove of both the Crown Prosecutor and defence counsel saying to the jury that they must be “sure” of the defendant’s guilt. Further, the Court also encouraged the common practice of contrasting the standard of proof beyond reasonable doubt with the lower civil standard of proof on the balance of probabilities as “an effective means of conveying to a jury that being satisfied of guilt beyond reasonable doubt does not simply mean concluding that the accused may have committed the offence charged or even that it is more likely than not that the accused committed the offence charged” (at ).
Section 165 Unreliable evidence
In Debresay v The Queen  VSCA 263 it was observed at  that certain hearsay evidence “carried with it all of the various limitations and deficiencies that hearsay evidence bears. After the effluxion of a decade, it was impossible in any meaningful way to assess [the representor’s] demeanour at the time he gave his original account. He was not, and could not have been, questioned contemporaneously by anyone concerned to protect the interests of the [accused]. And, as we have said, what [the representor] was endeavouring to convey when giving his original account was in any event subject to a degree of interpretation by those present”.
In Proud v R (No 2)  NSWCCA 44 the NSW Court of Criminal Appeal concluded that it was inappropriate to give any warning in a case where the evidence of the defendant implicated a co-defendant but that co-defendant had ceased to be a defendant by the time of the summing-up to the jury (see RA Hulme J at -).
Section 165B Delay in prosecution
In Robbins (a Pseudonym) v The Queen  VSCA 288 at  the Victorian Court of Appeal has made the following general observations in respect of a similar provision in the Jury Directions Act 2015:
- The origins of the relevant concern are to be found in historic sex offence cases and the decision of the High Court in Longman.
- The forensic disadvantage governed by s 39 is a disadvantage occurring because of the consequences of delay between the alleged offence and the trial.
- The disadvantage must be of a forensic nature; that is, a disadvantage suffered by the accused in challenging, adducing or giving evidence, or in conducting the accused’s case.
- The direction can only be given if the trial judge is satisfied that the accused has experienced a significant forensic disadvantage.
- There are disadvantages as a consequence of delay which do not warrant a direction under s 39. These disadvantages can be adequately dealt with in counsels’ addresses and do not require a judicial direction.
- The accused has the onus of establishing that the consequences of delay give rise to a significant forensic disadvantage.
- It is incumbent upon the accused to identify the particular risks of prejudice which constitute the significant forensic disadvantage.
- A loss of opportunity to obtain evidence of a contemporaneous medical examination which had occurred …, or medical or other scientific investigations which might have been undertaken …, or expert medical opinion which might have been obtained …, could, in a particular case, constitute a significant forensic disadvantage.
The Court of Appeal at  rejected a suggestion that a direction “would be required in any case where there is a delay sufficient to preclude an immediate medical examination of the victim and the alleged offender or an immediate forensic investigation of the alleged place where the offending occurred”.
Section 191 Agreements as to facts
A relevant consideration in deciding whether to grant leave to adduce evidence to contradict or qualify an agreed fact would be that the evidence qualifying an agreed fact was inadvertently not incorporated in the formulation of the agreed fact: Construction, Forestry, Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate  FCA 1166 at .
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