1

Police Powers and Arrest

1.1

Police Powers
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
Powers and Obligation include:
o Powers of Entry (Part 2)
o Powers to Require Identity to be Disclosed (Part 3)
o Search and Seizure Powers (Parts 4&5)
o Powers of Arrest (Part 8)
o Investigation and Questioning (Part 9)
o Powers relating to Persons in Custody (Part 10)
S4 LEPRA: legislation does not override existing CL powers and rights

1.2

Powers of Arrest
S99: Powers of Police to Arrest without Warrant
S101: Powers of Police to Arrest with Warrant
S100: Powers of Others to Arrest without Warrant

What is arrest?
Where a person is deprived of his liberty (R v ODonoghue)
No magic formula required mere words may be sufficient. No longer requires
actual seizing or touching of the suspect (Hatzinikolaou v Snape)
Apart from making it clear that the person is no longer free to go, Police must also tell
the person why he is being arrested (NSW v Delly [2007] NSWCA 303)
1.3 NSW: s99 LEPRA
Law Enforcement (Powers and Responsibilities) Act 2002
99 Power of police officers to arrest without warrant
(1) A police officer may, without a warrant, arrest a person if:
(a) the police officer suspects on reasonable grounds that the person is committing or has
committed an offence, and
(b) the police officer is satisfied that the arrest is reasonably necessary for any one or more
of the following reasons:
(i) to stop the person committing or repeating the offence or committing another offence,
(ii) to stop the person fleeing from a police officer or from the location of the offence,
(iii) to enable inquiries to be made to establish the persons identity if it cannot be readily
established or if the police officer suspects on reasonable grounds that identity information
provided is false,
(iv) to ensure that the person appears before a court in relation to the offence,
(v) to obtain property in the possession of the person that is connected with the offence,
(vi) to preserve evidence of the offence or prevent the fabrication of evidence,
(vii) to prevent the harassment of, or interference with, any person who may give evidence
in relation to the offence,
(viii) to protect the safety or welfare of any person (including the person arrested),
(ix) because of the nature and seriousness of the offence.
(2) A police officer may also arrest a person without a warrant if directed to do so by
another police officer. The other police officer is not to give such a direction unless the
other officer may lawfully arrest the person without a warrant.
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(3) A police officer who arrests a person under this section must, as soon as is reasonably
practicable, take the person before an authorised officer to be dealt with according to law.
Note. The police officer may discontinue the arrest at any time and without taking the
arrested person before an authorised officersee section 105.
(4) A person who has been lawfully arrested under this section may be detained by any
police officer under Part 9 for the purpose of investigating whether the person committed
the offence for which the person has been arrested and for any other purpose authorised by
that Part.
(5) This section does not authorise a person to be arrested for an offence for which the
person has already been tried.
(6) For the purposes of this section, property is connected with an offence if it is connected
with the offence within the meaning of Part 5.
Test:
1. Whether an officer suspects on reasonable grounds that an offence is or has
been committed; and
a. Objective v subjective
2. Whether the officer is satisfied that the arrest is reasonably necessary.
s91(1): may arrest
o Wide discretion
o BUT discretion is limited by the fact that the officer must be satisfied that the
arrest is reasonably necessary for one of the enumerated purposes in 99(1)(b)
(i)-(ix)
S138 EA: evidence that is obtained improperly or illegally is not to be admitted unless
the desirability of admitting the evidence outweighs the undesirability of admitting
evidence that has been obtained in the way in which the evidence was obtained.
S99(1)(a): Suspects on reasonable grounds
Subjective (Lord Hope- O'Hara v Chief Constable of the Royal Ulster Constabulary)
o Police officer has formed a genuine suspicion in his own mind that the person
has been concerned in acts/omissions
Objective (Lord Hope- O'Hara v Chief Constable of the Royal Ulster Constabulary)
o It is the grounds which were in the police officers mind at the time which
must be found to be reasonable grounds for the suspicion which he has
formed. These grounds must be examined objectively and that they be judged
at the time when the power was exercised.
o The question is whether a reasonable man would be of that opinion, having
regard to the information which was in the mind of the arresting officer
R v Rondo: 2 limb test
1. Police must have formed genuine suspicion based on some factual basis, and;
2. Are there reasonable grounds for the suspicion formed?
There must be less than a belief but more than a possibility, something
which would create in the mind of a reasonable person an
apprehension or fear
Regard must be had to the source of the information and its content,
seen in the light of the whole of the surrounding circumstances.
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1.4

When should these powers of Arrest under s99 LEPRA be exercised?

Where the police have alternatives to arrest, they should use those
Arrest is a last resort (DPP v Carr [2002] NSWSC 194, Williams v The Queen (1986)
161 CLR 278)
DPP v Carr [2002] NSWSC 194: drunk fuck off etc
o Magistrate did not err in classifying the arrest as improper. The initial decision
to arrest was born of expediency, and had the effect of escalating the incident
o If there are alternatives to arrest, they should be exercised. For minor charges,
police officers should have issued a summons or court attendance notice
(CAN), not arrest
o Inappropriate for powers of arrest to be used for minor offences where the
defendant's name and address are known, there is no risk of him departing and
there is no reason to believe that a summons will not be effective
o S138: magistrate was dealing with the trilogy of an ill-advised arrest, assault
of the police and the utterance of threats by an intoxicated man. The features
were closely related and interconnected, and in the circumstances it was
correct that the evidence was rendered inadmissible by the impropriety of
procedure.
R v McClean [2008] NSWLC 11: arrest will be unlawful unless it is necessary to
achieve one of the purposes set out in s99(3) (NOW S99(2))
Alternatives include (s107 LEPRA):
o Warning
o Caution
o Penalty notice

1.5

Answering Police Questions

S11: police officer may request a person to disclose their identity if the police officer
suspects on reasonable grounds that the person may be able to assist in the
investigation of an indictable offence because the person was at or near the place
where the offence occurred, whether before, when, or soon after it occurred.
S12: if a police officer requests for identity, a person must, not without reasonable
excuse, fail or refuse to comply with the request
S13: in responding to a police officers request, a person must not give a fake name or
give someone elses address

1.6

Investigation Process and Safeguards in Custody

S114: a person can be detained for investigation
S115-117: the investigation period must be exceed 4 hours
S118: the investigation period can be extended
S123: Before any investigative procedure, the custody manager for the person must
inform the person orally and in writing that he may communicate, or attempt to
communicate, with a friend etc to inform that person of the detained persons
whereabouts
S122-131: custody manager must (either orally or in writing):
o Tell the accused that they dont have to say anything but if they do it may be
used as evidence and

1.7

o Give the accused a summary of the provisions which references that the
investigation may be extended beyond 4 hours
S129: right to medical attention
S130: custody manager must ensure that the person is provided with reasonable
refreshments and reasonable access to toilet facilities
Vulnerable Persons
S128: If client needs interpreter, arrange for one- s128 LEPRA
Defined in reg 24 Law Enforcement (Powers and Responsibilities) Regulation 2005:
o Children
o Persons who have impaired intellectual functioning,
o Persons who have impaired physical functioning,
o Persons who are Aboriginal persons or Torres Strait Islanders,

Reg 33: Custody manager must immediately inform the Aboriginal

Legal Service unless the custody manager is aware that the person has
arranged for a legal practitioner to be present during questioning

o Persons who are of non-English speaking background,

Is NOT a person whom the custody manager reasonably believes is not a person
falling within any of those categories (reg 24 LEPRA)

Reg 35: times to be disregarding in calculating the investigation period include:

o Any time required to allow for the person to arrange for a support person to
attend at the place of detention,
o Any time that is required to allow the support person to arrive at the place of
detention

Reg 36: If an application for a detention warrant is made, the application for it must
include reference to the fact that the person is believed to be a vulnerable person, the
nature of the persons vulnerability, the identity and relationship to the person of any
support person who is present during the investigative procedure concerned, and any
particular precautions that have been taken in respect of the vulnerable person

1.8 S4 LEPRA: Breach of Peace

Law Enforcement (Powers and Responsibilities) Act 2002
4 Relationship to common law and other matters
(1) Unless this Act otherwise provides expressly or by implication, this Act does not limit:
(a) the functions, obligations and liabilities that a police officer has as a constable at
common law, or
(b) the functions that a police officer may lawfully exercise, whether under an Act or any
other law as an individual (otherwise than as a police officer) including, for example,
powers for protecting property.

(2) Without limiting subsection (1) and subject to section 9, nothing in this Act affects the
powers conferred by the common law on police officers to deal with breaches of the
peace.
1.9

Pre-trial silence
See notes on ss89 and 89A (p59/60)
Section 122 LEPRA requires a custody manager to both orally and in writing:
o Caution the person that they do not have to say or do anything but that
anything they do say or do may be used in evidence; and
o The person must sign an acknowledgement that this information has been
given.

Bail

S7: authority to be at liberty for an offence

o Allows D to be placed in community custody ie not held in detention
D is released on bail gives undertaking that they will return to court to face the
allegations against him
Where a person is granted bail, they are not kept in custody whilst the criminal
charges against them are finalised
Where a person is refused bail, they are remanded in custody until their matter is
finalised

2.1 Purpose of Bail Act 2013

Bail Act 2013 (NSW)
3 Purpose of Act
(1) The purpose of this Act is to provide a legislative framework for a decision as to
whether a person who is accused of an offence or is otherwise required to appear before a
court should be detained or released, with or without conditions.
*Note: no mention of the presumption of innocence post amendment
2.2 Bail Act 2013 Preamble
Bail Act 2013 (NSW)
Preamble
The Parliament of New South Wales, in enacting this Act, has regard to the following:
(a) the need to ensure the safety of victims of crime, individuals and the community,
(b) the need to ensure the integrity of the justice system,
(c) the common law presumption of innocence and the general right to be at liberty
2.3

Bail Applications
S48: court or authorised justice may make or vary a bail decision, after hearing a bail
application
Types of bail applications:
1. S49: Release Application
a. Made by accused to be released on bail
2. S50: Detention Application
a. Made by prosecutor to seek an order than bail not be granted
3. S51: Variation Application
a. Made by any interested person to vary a previous order e.g. victim of
domestic violence seeks to have the bail revoked
Detention application opposing bail.
o Opposing bail: accused is applying for bail and the prosecutor opposes the
application for x reasons e.g. flight risk, history of not showing up for court
appearances
Prosecutors do not have to give notice that they will oppose bail.
o Detention application
Prosecutors must provide the accused with written notice that they are
making such an application. In response to the prosecutors application
a court can refuse bail, grant or dispense with bail pursuant to s49.
Variation application: an interested person can apply to vary the bail of the accused
with notice.
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o S51: interested person = an accused person, the prosecutor, the AttorneyGeneral, the complainant in a domestic violence offence or the person for
whose protection an AVO application has been made.
2.4 Bail Decisions
Bail Act 2013
8 Bail decisions that can be made
(1) The following decisions (each of which is a bail decision) can be made under this Act
in respect of a person accused of an offence:
(a) a decision to release the person without bail for the offence,
(b) a decision to dispense with bail for the offence,
(c) a decision to grant bail for the offence (with or without the imposition of bail
conditions),
(d) a decision to refuse bail for the offence.
S8(1)(a): only a police officer can make such a decision (s9)
S8(1)(b): only a court or authorise justice can make such a decision (s10)
S8(1)(c): only a police officer, court or authorised justice can make decision (s11)
S8(1)(d): only a police officer, court or authorised justice can make decision (s11)
2.5

How does the Bail Act work?

All offences (excluding right of release)

1. Consider bail concerns
2. Are there conditions which can mitigate the concerns?
3. Apply unacceptable risk model
Show Cause Offences

Show cause offence: accused must show why the cause of his detention is not justified
(s16A(1))
If the accused is able to show cause, the prosecution must then apply the unacceptable
risk test (s16A(2))
If the accused does not show cause, bail is refused (s16A(1))
*Note: s16A does not apply if the accused person was under the age of 18 years at the
time of the offence (s16A(3))
Show cause offence is (s16B):
o Offence punishable by imprisonment for life,
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o Serious indictable offences

M v R [2015] NSWSC 138: 1 process step
Currently the law: DPP v Tikomaimaleya [2015] NSWCA 83: 2 step test
1. Accused must demonstrate why, on the balance of probabilities (s 32), his
detention is not justified. The justification of detention is a matter to be
determined by a consideration of all of the evidence or information the bail
authority considers credible or trustworthy in the circumstances (s 31(1)) and
not just by a consideration of those matters exhaustively listed in s 18 required
to be considered for the unacceptable risk assessment
2. Unacceptable risk
2.6 Bail Act 2013
Bail Act 2013 (NSW)
16 Flow chartskey features of bail decisions
(1) The flow charts illustrate the key features of bail decisions under this Act.
(2) Flow Chart 1 illustrates the show cause requirement (set out in Division 1A), which
applies only to show cause offences.
(3) Flow Chart 2 illustrates the unacceptable risk test (set out in Division 2) as it applies to
all offences, other than offences for which there is a right to release.
(4) In the flow charts:
conditional release means a decision to grant bail with the imposition of bail conditions.
unconditional release means a decision:
(a) to release a person without bail, or
(b) to dispense with bail, or
(c) to grant bail without the imposition of bail conditions.

2.7 Assessment of Bail Concerns

Bail Act 2013 (NSW)
17 Assessment of bail concerns
(1) A bail authority must, before making a bail decision, assess any bail concerns.
(2) For the purposes of this Act, a bail concern is a concern that an accused person, if
released from custody, will:
(a) fail to appear at any proceedings for the offence, or
(b) commit a serious offence, or
(c) endanger the safety of victims, individuals or the community, or
(d) interfere with witnesses or evidence.
(3) If the accused person is not in custody, the assessment is to be made as if the person
were in custody and could be released as a result of the bail decision.
(4) This section does not apply if the bail authority refuses bail under Division 1A (Show
cause requirement).
Assessment of Risk
Bail Act 2013 (NSW)
18 Matters to be considered as part of assessment
(1) A bail authority is to consider the following matters, and only the following matters, in
an assessment of bail concerns under this Division:
(a) the accused persons background, including criminal history, circumstances and
community ties,
(b) the nature and seriousness of the offence,
(c) the strength of the prosecution case,
(d) whether the accused person has a history of violence,
(e) whether the accused person has previously committed a serious offence while on bail,

(f) whether the accused person has a history of compliance or non-compliance with bail
acknowledgments, bail conditions, apprehended violence orders, parole orders or good
behaviour bonds,
(g) whether the accused person has any criminal associations,
(h) the length of time the accused person is likely to spend in custody if bail is refused,
(i) the likelihood of a custodial sentence being imposed if the accused person is convicted
of the offence,
(j) if the accused person has been convicted of the offence and proceedings on an appeal
against conviction or sentence are pending before a court, whether the appeal has a
reasonably arguable prospect of success,
(k) any special vulnerability or needs the accused person has including because of youth,
being an Aboriginal or Torres Strait Islander, or having a cognitive or mental health
impairment,
(l) the need for the accused person to be free to prepare for his or her appearance in court
or to obtain legal advice,
(m) the need for the accused person to be free for any other lawful reason,
(n) the conduct of the accused person towards any victim of the offence, or any family
member of a victim, after the offence,
(o) in the case of a serious offence, the views of any victim of the offence or any family
member of a victim (if available to the bail authority), to the extent relevant to a concern
that the accused person could, if released from custody, endanger the safety of victims,
individuals or the community,
(p) the bail conditions that could reasonably be imposed to address any bail concerns in
accordance with section 20A.
(2) The following matters (to the extent relevant) are to be considered in deciding whether
an offence is a serious offence under this Division (or the seriousness of an offence), but do
not limit the matters that can be considered:
(a) whether the offence is of a sexual or violent nature or involves the possession or use of
an offensive weapon or instrument within the meaning of the Crimes Act 1900,
(b) the likely effect of the offence on any victim and on the community generally,
(c) the number of offences likely to be committed or for which the person has been
granted bail or released on parole.
2.8

If no unacceptable risk
S20: If no unacceptable risk, bail authority must:
o Grant bail (with or without the imposition of bail conditions), or
o Release the person without bail, or
o Dispense with bail

2.9 s21: Special rule for offences for which there is a right to release
Bail Act 2013 (NSW)
21 Special rule for offences for which there is a right to release
(1) The following decisions are the only bail decisions that can be made for an offence for
which there is a right to release:
(a) a decision to release the person without bail,
(b) a decision to dispense with bail,
(c) a decision to grant bail to the person (with or without the imposition of bail

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conditions).
(2) There is a right to release for the following offences:
(a) a fine-only offence,
(b) an offence under the Summary Offences Act 1988, other than an excluded offence,
(c) an offence that is being dealt with by conference under Part 5 of the Young Offenders
Act 1997.
(3) Each of the following offences under the Summary Offences Act 1988 is an excluded
offence:
(a) an offence under section 5 (obscene exposure) if the person has previously been
convicted of an offence under that section,
(b) an offence under section 11A (violent disorder) if the person has previously been
convicted of an offence under that section or of a personal violence offence,
(c) an offence under section 11B, 11C or 11E (offences relating to knives and offensive
implements) if the person has previously been convicted of an offence under any of those
sections or of a personal violence offence,
(d) an offence under section 11FA (custody or use of laser pointer in public place),
(e) an offence under section 11G (loitering by convicted child sexual offenders near
premises frequented by children).
(4) An offence is not an offence for which there is a right to release if the accused person
has previously failed to comply with a bail acknowledgment, or a bail condition, of a bail
decision for the offence.
(5) Subject to subsection (1), Division 2 (Unacceptable risk testall offences) applies to a
bail decision for an offence for which there is a right to release.
Bail cannot be refused for an offence for which there is a right to release under s21
(s19(4))
Usually where they will be released because theyre not serious enough for bail e.g.
right to release for fine only offences
2.10 Conditional Bail
Bail may be granted either with or without conditions imposed
S20A(1): for bail conditions to be imposed there must be identified bail concerns
S20A(2): bail conditions are to be imposed only if the bail authority is satisfied, after
assessing the Bail Concerns, and the Bail Authority is satisfied the Conditions are
necessary, proportionate and appropriate in addressing the identified bail concerns
(s20A)
Bail Act 2013 (NSW)
20A Imposition of bail conditions
(1) Bail conditions are to be imposed only if the bail authority is satisfied, after assessing
bail concerns under this Division, that there are identified bail concerns.
(2) A bail authority may impose a bail condition only if the bail authority is satisfied that:
(a) the bail condition is reasonably necessary to address a bail concern, and
(b) the bail condition is reasonable and proportionate to the offence for which bail is
granted, and
(c) the bail condition is appropriate to the bail concern in relation to which it is imposed,
and

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(d) the bail condition is no more onerous than necessary to address the bail concern in
relation to which it is imposed, and
(e) it is reasonably practicable for the accused person to comply with the bail condition,
and
(f) there are reasonable grounds to believe that the condition is likely to be complied with
by the accused person.
Bail Conditions include:
S25: conduct requirements e.g. surrender passport
S26: security be provided e.g. payment of security
o E.g. if you dont show up, family member provides assurity such as paying
$10k
S27: character acknowledgement by person of standing
o Someone vouches youre of good character
S28: accommodation requirements e.g. live with a nominated person
2.11 Actions that may be taken to enforce bail requirements
Bail Act 2013 (NSW)
77 Actions that may be taken to enforce bail requirements
(1) A police officer who believes, on reasonable grounds, that a person has failed to
comply with, or is about to fail to comply with, a bail acknowledgment or a bail condition,
may:
(a) decide to take no action in respect of the failure or threatened failure, or
(b) issue a warning to the person, or
(c) issue a notice to the person (an application notice) that requires the person to appear
before a court or authorised justice, or
(d) issue a court attendance notice to the person (if the police officer believes the failure is
an offence), or
(e) arrest the person, without warrant, and take the person as soon as practicable before a
court or authorised justice, or
(f) apply to an authorised justice for a warrant to arrest the person.
(2) However, if a police officer arrests a person, without warrant, because of a failure or
threatened failure to comply with a bail acknowledgment or a bail condition, the police
officer may decide to discontinue the arrest and release the person (with or without issuing
a warning or notice).
(3) The following matters are to be considered by a police officer in deciding whether to
take action, and what action to take (but do not limit the matters that can be considered):
(a) the relative seriousness or triviality of the failure or threatened failure,
(b) whether the person has a reasonable excuse for the failure or threatened failure,
(c) the personal attributes and circumstances of the person, to the extent known to the
police officer,
(d) whether an alternative course of action to arrest is appropriate in the circumstances.
2.12 Offence of failing to appear
Bail Act 2013 (NSW)
79 Offence of failing to appear
(1) A person who, without reasonable excuse, fails to appear before a court in accordance
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with a bail acknowledgment is guilty of an offence.

(2) The onus is on the person granted bail to prove reasonable excuse.
(3) The maximum penalty for an offence against this section (a fail to appear offence) is
the maximum penalty for the offence for which bail was granted, subject to this section.
(4) A penalty of imprisonment for a fail to appear offence is not to exceed 3 years and a
monetary penalty for an offence against this section is not to exceed 30 penalty units.

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Proof and Presumptions

3.1 Burden of Proof

Legal
Criminal
Prosecution that bears the onus of proving the guilt of the accused (Woolmington
v DPP (1935) AC 462) by proving all the elements i.e. persuade the court that
accused is guilty of the offence the accused is charged with
o Not up to the Accused to prove his / her innocence
Civil
o Party who makes the assertion (plaintiff) who must prove that assertion (by
proving all the elements of the assertion)
o Same applies to defendant and with defense
Evidential
Burden a party must meet to demonstrate to the Court that an
allegation/assertion/defence has sufficient foundation for evidence to be taken on that
particular issue (contrary to The Queen v Khazaal [2012] HCA 26)
o E.g. in self-defence, D must satisfy court that he has a reasonable justification
for taking another persons life. Judge says yes that sounds reasonable, lets
hear evidence in relation to that
It is the obligation to produce sufficient evidence on a particular proposition to render
that issue worthy of consideration by the Court.
Normally operates when the Accused raises a defence to the crime.
If the Judge determines that insufficient evidence has been presented, the Judge will
not allow the Jury to consider the issue as part of the evidence.
3.2

Standard of Proof
Level of proof required to meet/discharge the Burden of Proof (strength of proof)

Criminal
Evidence Act 1995
141 Criminal proceedings: standard of proof
(1) In a criminal proceeding, the court is not to find the case of the prosecution proved
unless it is satisfied that it has been proved beyond reasonable doubt.
(2) In a criminal proceeding, the court is to find the case of a defendant proved if it is
satisfied that the case has been proved on the balance of probabilities.
Prosecution must prove the Accuseds guilt beyond reasonable doubt
o Must prove every element of the offence beyond reasonable doubt
o Must also disprove the existence of each defence (which is raised by the
accused), beyond reasonable doubt.
Longstanding authority for the proposition that, except in certain limited
circumstances, no attempt should be made to explain or embellish the meaning of the
phrase beyond reasonable doubt (Green v The Queen (1971) 126 CLR 28)
Circumstantial evidence
o No requirement for each piece of circumstantial evidence to be proven beyond
reason doubt. Evidence must be considered as a whole and not by a piecemeal
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approach to each particular circumstance (unless the circumstantial fact is so

fundamental to the reasoning process (Shepherd v The Queen (1990) 170 CLR
573per Dawson J)
Civil
Evidence Act 1995
140 Civil proceedings: standard of proof
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that
the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it
is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
Party seeking to prove an allegation contained in their pleadings convince the Court
that on the balance of probabilities ie more likely than not.
Briginshaw v Briginshaw (1938) 60 CLR 336: while proof on the balance of
probabilities is sufficient for all non-criminal cases, the reasonable satisfaction
required to discharge that burden of proof will vary according to factors such as the
seriousness of the allegation made, their inherent unlikelihood, or the gravity of the
consequences
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR: ordinary
standard of proof is balance of prob even where criminal conduct/fraud involved.
Evidential
on the balance of probabilities ie more likely than not
3.3 Judicial Notice
Evidence Act 1995
144 Matters of common knowledge
(1) Proof is not required about knowledge that is not reasonably open to question and is:
(a) common knowledge in the locality in which the proceeding is being held or generally;
or
(b) capable of verification by reference to a document the authority of which cannot
reasonably be questioned.
(2) The judge may acquire knowledge of that kind in any way the judge thinks fit.
(3) The court (including, if there is a jury, the jury) is to take knowledge of that kind into
account.
(4) The judge is to give a party such opportunity to make submissions, and to refer to
relevant information, relating to the acquiring or taking into account of knowledge of that
kind as is necessary to ensure that the party is not unfairly prejudiced.
Not all facts before the Court need to be proven. There are certain things that the law
has decided do not need to be proven.
o Referred to as common knowledge in EA
o E.g. xmas day on 25 Dec
15

Where the court thinks something is common knowledge, they will not require any
evidence to be adduced about it, and can take judicial notice of that fact.
Can also apply to matters of common sense. eg. A court once took judicial notice of
the fact that drugs are heavier when they are wet than when they are dry.
Australian Communist Party v Commonwealth (1951) 83 CLR 1: HCA took judicial
notice of what political and economic principles Marx and Lenin stood for and certain
events in the history of communism.

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4.1

Admissibility

3 stage test
1. Relevant / Not Relevant?
2. If Relevant, are there any Exclusionary Rule that apply?
3. If no Exclusionary Rule applies, should the Trial Judge use Discretion to exclude the
evidence?

17

Relevance

Evidence Act 1995 (NSW)

55 Relevant evidence
(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.
(2)
(a)
(b)
(c)

In particular, evidence is not taken to be irrelevant only because it relates only to:
the credibility of a witness, or
the admissibility of other evidence, or
a failure to adduce evidence.

56 Relevant evidence to be admissible

(1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is
admissible in the proceeding.
(2) Evidence that is not relevant in the proceeding is not admissible.
Can the evidence rationally affect (directly or indirectly) the assessment of the
existence of a fact in issue in the proceeding (s55)?
o Threshold test: is there a logical connection between evidence and a fact in
issue? (Papakosmas)
Nature and degree of the connection necessary will depend on the
nature of that fact (Gaurdon and Kirby JJ - Papakosmas)
The connection will ordinarily be found in the close contemporaneity
of the statement with the fact in issue and the consideration that the
statement is a statement of the kind that might ordinarily be expected
from the maker if the fact were true (Gaurdon and Kirby JJ Papakosmas)
o *Note: s55 assumes evidence is reliable (McHugh J- Papakosmas)
If yes evidence is relevant admissible (s56)
If no evidence is irrelevant inadmissible (s56)
If material can help us understand a fact in issue/fact that supports a fact in issue, it
will be relevant
Evidence can be relevant to show:
o Someone said something (ie was not silent)
o What was said (show content of the statement)
Exam: first question to ask is, is the material relevant under s55?
5.1

Relevant only / relevant also / relevant to what?

Litigation: facts in issue to which evidence must be relevant
o Crim: facts in issue are the elements of the crime to which D is charged
o Civil: facts in issue are the elements of the action being brought by the P

Papakosmas v The Queen (1999) 196 CLR 297

FACTS: sex-assault, xmas party, boss, told 3 people after it
HELD:
Evidence of the 3 witnesses may be relevant for more than one use:

18

1. Hearsay: relevant to proving the fact in issue (complainant had not consented
to intercourse with P), even though it is used for hearsay purpose, provided
exception applies (s66 - maker available to give evidence + fresh in the
memory)
2. Credibility: relevant to supporting the credibility of the complainant's evidence
in sexual assault cases because the making of an early complaint is regarded as
being consistent with what a complainant would do if he or she had been
assaulted as alleged
Here she complained immediately, she complained three times, she
was consistent in her complaint and she was very upset.
McHugh J: In a trial for sexual assault, ss 55(2)(a) and 56(1)
permit evidence to be adduced that, within a reasonable period
of the alleged assault, the complainant had told one or more
persons that she had been sexually assaulted
McHugh J: Evidence of distress on the part of a complainant is
always relevant to a charge of sexual assault
Reliability and procedural fairness play a part in exclusionary rules and ss 135-137,
NOT s55 (McHugh J).

Smith v The Queen (2001) 206 CLR 650

FACTS: bank robbery, security cameras took photos, was S the person in the photos?
HELD:
The police witnesses were in no better position to make a comparison between the
appellant and the person in the photographs than the jurors. Their assertion of identity
was founded on material no different from material available to the jury from its own
observation. It could not rationally affect the jurys assessment of whether S was
the person depicted in the photos evidence irrelevant inadmissible
In determining relevance in a criminal case, the issues at trial will be the:
o Facts which constitute the elements of the offence (fact in issue)
o Facts relevant to the facts in issue
Evans v The Queen [2007] HCA 59
FACTS: council robbery, robber was filmed on security cameras, and was wearing a
balaclava, sunglasses and overalls, and said certain words during the robbery, E did the same
during trial
HELD:
Non-relevant - Gummow and Hayne JJ: dressing E in the items provided no
information to the jury that could rationally affect, directly or indirectly, the
determination of any fact in issue because it revealed nothing about the wearer and
nothing about the appellant that was not already apparent to the jury observing him in
the dock
Relevant but prejudicial - Kirby J: relevance threshold is broad and should not be used
to artificially exclude evidence that is, in fact, but is problematic (and perhaps
inadmissible for other reasons e.g. dangerous, unfair, humiliating and prejudicial)
Relevant - Heydon J (Crennan J agreed):

19

o If, attired in the balaclava, the accused had looked very different from the
descriptions given by the eyewitnesses that would have been material capable
of raising a reasonable doubt. If, so attired, he had looked similar to the
descriptions, it would, taken with other evidence, have been material capable
of supporting a conclusion of identity.
o The appearance of the accused walking in overalls in front of the jury was
capable of making an impression on the jury which was favourable to the
accused (as his counsel submitted in final address) as much as it was capable
of causing an impression adverse to him (as prosecution counsel submitted).
Either way the evidence was relevant
5.2 Different ways in which evidence can be relevant
Direct evidence
Establishes one or more of the facts in issue without the need for any further inference
E.g. if witness testifies that he perceived one or more facts, which constitute elements
of the offence/cause of action such as consent in a rape trial
Circumstantial evidence
Witness testifies their perspective however the credibility of this is inconclusive
o Because witness only perceives the facts that render more or less probable
occurrence of the events as alleged
o E.g. in crim case the witness testifies that he saw the defendant leaving the
deceaseds house shortly after the deceased was found dead. Circumstance is
relevant because it suggests the D falls into the limited class of those who had
the opportunity to commit murder
Task of jury:
1. Decide whether or not the circumstance exists; and
2. Whether or not to draw the inference sought
On its own, each piece of circumstantial evidence may establish little; it is the
cumulative effect of the evidence, which may persuade the jury to draw the inference
o E.g. accompany evidence of opportunity with motive, weapon, blood on Ds
clothing etc

20

6
6.1

6.2

Privilege and Confidentiality

What is Privilege?
A right to resist compulsory demands for information i.e. right to refuse to
handover/disclose material (Federal Police v Propend Finance)
This Public Policy based concept acts against the notion that all relevant evidence
should be admitted.
o Public interest favours non-disclosure unless the public interest in disclosure is
greater.
This is the balancing act
CL privileges operate alongside the various EA provisions
Client Legal Privilege
There is something special about the relationship between a lawyer and her client.
Similar in effect to Legal Professional Privilege (CL version) but broader in its
application
Client Legal Privilege attaches to the Client it should not be seen as a Lawyers
entitlement.
Both pre-trial and trial claims of legal privilege dealt with under EA

Definitions (s117)
Client includes inter alia:
o Employer of lawyer.
o Employee or agent of a client.
o An employer being the Cth, State or Territory, or a body established under the
law of the Cth, State or Territory.
Confidential communication means:
o A communication made in such circumstances that when it was made the
person who made it or to whom it was made was under an express or implied
obligation not to disclose its contents.
Confidential document means:
o A document prepared in circumstances that when it was prepared the person
who prepared it or for whom it was prepared was under an express or implied
obligation not to disclose its contents.
Lawyer:
o Includes Australian and overseas registered foreign lawyers and an employee
or agent of a lawyer.
Advice (s118)
Evidence Act 1995 (NSW)
118 Legal advice
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the
evidence would result in disclosure of:
(a) a confidential communication made between the client and a lawyer; or
(b) a confidential communication made between 2 or more lawyers acting for the client; or
(c) the contents of a confidential document (whether delivered or not) prepared by the
client, lawyer or another person;
for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal

21

advice to the client.

Privilege attaches to communications between a client and their legal advisor for the
dominant purpose of obtaining or giving legal advice.
o Test: What is the dominant purpose which led to the making of the
communication or the preparation of the document
Establish there is a true lawyer client relationship i.e. advice is in
relation to legal matters and NOT e.g. finance
S118 does not extend to communications with 3rd parties BUT DOES EXTEND TO
DOCUMENTS provided by 3rd party to the client or lawyer for the dominant purpose
of providing legal advice
Litigation (s119)
Evidence Act 1995 (NSW)
119 Litigation
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the
evidence would result in disclosure of:
(a) a confidential communication between the client and another person, or between a
lawyer acting for the client and another person, that was made; or
(b) the contents of a confidential document (whether delivered or not) that was prepared;
for the dominant purpose of the client being provided with professional legal services
relating to an Australian or overseas proceeding (including the proceeding before the
court), or an anticipated or pending Australian or overseas proceeding, in which the client
is or may be, or was or might have been, a party.
Attaches to communications between a client, the clients legal advisor and third
parties, for the dominant purpose of use in or in relation to litigation, which is either
pending or in contemplation.
Dominant Purpose Test
Confidential communications are only privileged if they are created for the dominant
purpose of the legal adviser providing legal advice or services (Esso v Federal
Commission for Taxation (1999) 201 CLR 49)
Dominant purpose is ' the ruling, prevailing or most influential purpose ' for which a
document is brought into existence (Federal Commissioner of Taxation v Spotless
Services Ltd (1996) 186 CLR 404)
If there are multiple purposes thats fine, but the court needs to identify that one of
those is the dominant one. If theyre equally competing, neither one of them can be
dominant
Purpose for which a document is brought into existence is a question of objective fact,
which is generally determined by reference to:
o evidence
o nature of the document
o submissions from the parties.
Generally, the dominant purpose is to be determined at the time at which the
document is brought into existence, not the time of its communication (Carnell v
Mann (1998) 159 ALR 647)
Self-represented litigants (s120)
Evidence Act 1995 (NSW)

22

120 Unrepresented parties

(1) Evidence is not to be adduced if, on objection by a party who is not represented in the
proceeding by a lawyer, the court finds that adducing the evidence would result in
disclosure of:
(a) a confidential communication between the party and another person; or
(b) the contents of a confidential document (whether delivered or not) that was prepared,
either by or at the direction or request of, the party;
for the dominant purpose of preparing for or conducting the proceeding
Client Legal Privilege also applies to self-represented litigants
Privilege extends to communications documents between a self-represented litigant
and a 3rd Party.
Privilege can be claimed over documents of client as self-represented litigant and
third parties
Dominant purpose under s120 is for preparing for or conducting the proceeding
Daniels v ACCC (2002) 213 CLR 543
CLP, as a privilege, needs to be explicitly abrogated by legislation, and cannot be
abrogated by inference
Implied power doesnt mean anything. Unless it is explicitly expressed in legislation,
CLP will not be excluded
Loss of Privilege
Consent (s122(1))
Evidence Act 1995 (NSW)
122 Loss of client legal privilege: consent and related matters
(1) This Division does not prevent the adducing of evidence given with the consent of the
client or party concerned.

If a party consents to adducing the evidence in question, privilege under s118-120 is

lost
o *Note: Privilege belongs to the client only the client, not the lawyer, can
consent to material being adduced

Acted in a way that is inconsistent with" maintenance of the privilege (s 122(2))

Evidence Act 1995 (NSW)
122 Loss of client legal privilege: consent and related matters
(2) Subject to subsection (5), this Division does not prevent the adducing of evidence if
the client or party concerned has acted in a way that is inconsistent with the client or party
objecting to the adducing of the evidence because it would result in a disclosure of a kind
referred to in section 118, 119 or 120.
(3) Without limiting subsection (2), a client or party is taken to have so acted if:
(a) the client or party knowingly and voluntarily disclosed the substance of the evidence to
another person; or
(b) the substance of the evidence has been disclosed with the express or implied consent of
the client or party.

23

(4) The reference in paragraph (3)(a) to a knowing and voluntary disclosure does not
include a reference to a disclosure by a person who was, at the time of the disclosure, an
employee or agent of the client or party or of a lawyer of the client or party unless the
employee or agent was authorised by the client, party or lawyer to make the disclosure.
(5) A client or party is not taken to have acted in a manner inconsistent with the client or
party objecting to the adducing of the evidence merely because:
(a) the substance of the evidence has been disclosed:
(i) in the course of making a confidential communication or preparing a confidential
document; or
(ii) as a result of duress or deception; or
(iii) under compulsion of law; or
(iv) if the client or party is a body established by, or a person holding an office under, an
Australian lawto the Minister, or the Minister of the Commonwealth, the State or
Territory, administering the law, or part of the law, under which the body is established or
the office is held; or
(b) of a disclosure by a client to another person if the disclosure concerns a matter in
relation to which the same lawyer is providing, or is to provide, professional legal services
to both the client and the other person; or
(c) of a disclosure to a person with whom the client or party had, at the time of the
disclosure, a common interest relating to the proceeding or an anticipated or pending
proceeding in an Australian court or a foreign court.

Privilege is not waived if documents are mistakenly produced in the discovery process
o Where a privileged document is inadvertently disclosed, the court should
ordinarily permit the correction of that mistake and order the return of the
document (Armstrong)

Misconduct
S125(1)(a): loss of privilege if a communication or document was made or prepared
by a client, lawyer or party in furtherance of a fraud, an offence or an act that renders
a person liable to a civil penalty.
S125(1)(b): loss of privilege if the communication or document was known, or should
reasonably have been known, by the client, lawyer or party, to have been made or
prepared in furtherance of a deliberate abuse of statutory power
Other
Evidence Act 1995 (NSW)
121 Loss of client legal privilege: generally
(1) This Division does not prevent the adducing of evidence relevant to a question
concerning the intentions, or competence in law, of a client or party who has died.
(2) This Division does not prevent the adducing of evidence if, were the evidence not
adduced, the court would be prevented, or it could reasonably be expected that the court
would be prevented, from enforcing an order of an Australian court.

24

(3) This Division does not prevent the adducing of evidence of a communication or
document that affects a right of a person.

6.3

Partially (not entirely) revoked by the death of the client (s121(1));

If it prevents the enforcement of a court order (s121(2)); or
If it interferes with someones rights (s121(3)); or

Professional Confidential Relationship Privilege

Under Div 1A of Part 3.10 EA recognises that there are other professional
relationships that give rise to confidence (not just lawyer / client).
Professional Confidential Relationship Privilege (PCRP) is a statutory privilege; there
is no comparable privilege at CL because the CL does not recognise confidentiality as
a ground of privilege from disclosure (Wran v ABC [1984] 3 NSWLR 241)
Definitions
Evidence Act 1995 (NSW)
126A Definitions
(1) In this Division:
harm includes actual physical bodily harm, financial loss, stress or shock, damage to
reputation or emotional or psychological harm (such as shame, humiliation and fear).
protected confidence means a communication made by a person in confidence to another
person (in this Division called the confidant):
(a) in the course of a relationship in which the confidant was acting in a professional
capacity, and
(b) when the confidant was under an express or implied obligation not to disclose its
contents, whether or not the obligation arises under law or can be inferred from the nature
of the relationship between the person and the confidant.
protected confider means a person who made a protected confidence.
protected identity information means information about, or enabling a person to ascertain,
the identity of the person who made a protected confidence.

(2) For the purposes of this Division, a communication may be made in confidence even if
it is made in the presence of a third party if the third partys presence is necessary to
facilitate communication.

In NSW, PCRP covers a wide range of confidential communications NSW Act does
not attempt to define the ambit.
o Doctor / Health Professional
o Journalist
o Social Worker
o Accountant/client
o Its not a definitive list
The Cth Act only covers confidential communications with Journalists.
s126B(1): PCRP serves to protect:
o A protected confidence
o A document recording a protected confidence
o Protected Identity information

25

When considering whether to grant the Privilege, the Court is required balance
potential harm in a particular case against public interest of having all relevant
material before the Court.
s126B(3): when the Court is dealing with the issue of PCRP, it must consider and be
satisfied that .
a) it is likely that harm would or might be caused (whether directly or indirectly)
to a protected confider if the evidence is adduced, AND
b) the nature and extent of the harm outweighs the desirability of the evidence
being given.

S126B(4): In undertaking this balancing exercise, the Court will have to consider
factors such as:
a) the probative value of the evidence in the proceeding,
a. If not of provable value, why would you consider overriding privilege?
b) the importance of the evidence in the proceeding,
c) the nature and gravity of the relevant offence, cause of action or defence and
the nature of the subject matter of the proceeding,
a. If case involving minor, it will influence judges decision making
d) the availability of any other evidence concerning the matters to which the
protected confidence or protected identity information relates,
a. Is there other evidence disclosing the same thing without waiving
privilege?
e) the likely effect of adducing evidence of the protected confidence or protected
identity information, including the likelihood of harm, and the nature and
extent of harm that would be caused to the protected confider,
f) the means (including any ancillary orders that may be made under section
126E) available to the court to limit the harm or extent of the harm that is
likely to be caused if evidence of the protected confidence or the protected
identity information is disclosed,
g) if the proceeding is a criminal proceedingwhether the party seeking to
adduce evidence of the protected confidence or protected identity information
is a defendant or the prosecutor,
h) whether the substance of the protected confidence or the protected identity
information has already been disclosed by the protected confider or any other
person,
i) the public interest in preserving the confidentiality of protected confidences,
j) the public interest in preserving the confidentiality of protected identity
information.

PCRP is not absolute

26

o Requires a judge to undertake balancing exercise i.e. s126B guides the judge
as to how he must exercise his discretion as to whether or not to recognise the
privilege
Loss of PCRP
Can occur in 2 circumstances:
1. Confider gives consent for the protected material to be disclosed (s126C);or
2. Document is prepared in the furtherance of the commission of a fraud or an
offence or the commission of an act that renders a person liable to a civil
penalty (s126D)
Where a communication or document has lost privilege then evidence of another
communication or document reasonably necessary to enable understanding of the
communication will also be lost.
The court may inspect a document for the purpose of determining whether it is
privileged (s133)
6.4

Sexual Assault Communications Privilege

R v Young (1999) 46 NSWLR 681
FACTS: girl sexually assaulted by Y, girl got counselling, counsellor took notes

6.5

HELD: PCRP did not apply to counsellors notes. Division 1B only applied to the
adducing evidence and could not protect sexual assault communications in relation to
discovery and the production of documents.
LAW NOW: ss295-298 Criminal Procedure Act 1986 (NSW)
o S296: protected confidence means a counselling communication that is made
by, to or about a victim or alleged victim of a sexual assault offence
o S300: principal protected confider may consent to the production of the
document or adducing of the evidence
Consent must be in writing; and
consent must expressly relate to the production of a document or
adducing of evidence that is privileged
s126H EA will exclude evidence of protected sexual assault communications in civil
proceedings only applies if evidence was excluded in a criminal trial for sexual
assault, where substantially the same acts are in issue.
Privilege Against Self-Incrimination
CL: person is not obliged to answer a question, or to produce documents, or to do
anything if, in doing so, it might expose them to a criminal conviction or a civil
penalty
CL privilege has been codified in s128 EA
Privilege against self-incrimination only applies to individual human beings. It does
not apply to companies
S128(1): A witness can object to giving particular evidence, or evidence on a
particular matter, on the ground that the evidence may tend to prove that the witness
has committed an offence or is liable to a civil penalty
S128(2): if the witness objects, court must determine whether or not there are
reasonable grounds for the objection
27

6.6

S128(3): subject to s128(4), if there are reasonable grounds for the objection, the
court will inform the witness that they do not need to give evidence
S128(4): court may decide the witness should give evidence because:
a) the evidence does not tend to prove that the witness has committed an offence
against or arising under, or is liable to a civil penalty under, a law of a foreign
country, and
b) the interests of justice require that the witness give the evidence.
S128(5): If the witness either willingly gives the evidence without being required to
do so under s128(4), or gives it after being required to do so under s128(4), the court
must cause the witness to be given a certificate (immunity)
o Cornwell v The Queen HC: even if certificate is issued by mistake, effect of
certificate (immunity) will remain
S128(10): privilege does not apply in relation to the giving of evidence by a
defendant, being evidence that the defendant:
a) did an act the doing of which is a fact in issue, or
b) had a state of mind the existence of which is a fact in issue.

Religious Confessions
S127(1) EA: A person who is or was a member of the clergy of any church or
religious denomination is entitled to refuse to divulge that a religious confession was
made, or the contents of a religious confession made, to the person when a member of
the clergy.
S127(4): religious confession means a confession made by a person to a member of
the clergy in the members professional capacity according to the ritual of the church
or religious denomination concerned
o cant be having a beer at the pub. This is not professional capacity

6.7

Public Interest Immunities

Deals with information which is otherwise relevant to the proceedings but is withheld
on basis that the public interest in its disclosure is outweighed by the public interest to
suppress it.
Court is required to undertake a balancing exercise when assessing the competing
interests (Sankey v Whitlam (1978) 142 CLR 1)
EA envisages different types of Public Interest Immunities
o s130: exclusion of evidence of reasons for judicial decisions
o s131: exclusion of evidence of matters of state
o s132: exclusion of evidence of settlement negotiations

28

Witnesses

7.1

Trial Procedure (Criminal)

1. Accused has Indictment (charge) read to him and then asked to enter his plea
(arraignment process)
2. Jury empanelled and sworn in.
3. Prosecution makes brief Opening Address outlining the elements of the offence and
the evidence he will call in support of the Prosecution case.
4. Defence may make brief statement if wishes to do so.
5. Witnesses for Prosecution called to give evidence.
6. Opening Address by Defence.
7. Witnesses for Defence called.
8. Closing submissions by Lawyers (Prosecution goes first).
9. Judge summarises the evidence and law for Jury.
10. Verdict (Guilty or Not Guilty).
11. Sentencing (if needed).

7.2

How is evidence adduced?

Testimonial evidence: orally or in written form (Affidavit or Witness Statement)
Documents and Real Evidence are tendered and if they conform to the Rules
governing relevance and authenticity they will be admitted into evidence.
o *Note: ensure used for the purpose we want it to be
o Authenticity: there has to be factual basis linking item to the case
Before evidence will be accepted, there must be a basis for finding that the evidence is
what it purports to be. Very important requirement for Documentary Evidence, Real
Evidence and Expert Evidence.
o There must be a trail of provable facts
Court must not use information that was not part of the formal process of receiving
evidence (Bilal Skaf case Jurors undertaking unofficial view)
o Bilal: Original trial decision was overturned on the basis that 2 jurors went off
and undertook an unofficial view. Resulted in retrial

7.3

Who can give evidence?

Competence= legal ability to give evidence
o Ability to give a rational reply to questions about facts.
General rule: every person is presumed to be competent to give evidence unless
some form of exception applies (s12)
Evidence Act 1995 (NSW)
12 Competence and compellability
Except as otherwise provided by this Act:
(a) every person is competent to give evidence, and
(b) a person who is competent to give evidence about a fact is compellable to give that
evidence
Exceptions
o Those lacking of capacity to do so owing to a mental, intellectual or physical
disability. (s13)
o The Accused is not competent to give evidence for Prosecution. (s17(2))
Evidence Act 1995 (NSW)
13 Competence: lack of capacity
29

(1) A person is not competent to give evidence about a fact if, for any reason (including a
mental, intellectual or physical disability):
(a) the person does not have the capacity to understand a question about the fact, or
(b) the person does not have the capacity to give an answer that can be understood to a
question about the fact,
and that incapacity cannot be overcome.
17 Competence and compellability: defendants in criminal proceedings
(2) A defendant is not competent to give evidence as a witness for the prosecution.
7.4

Who must give evidence?

A person who is competent to give evidence about a fact is compellable to give that
evidence (s12)
If a person is a compellable witness they may be legally forced to give evidence
despite being reluctant to do so.
Exceptions to compellability:
o The accused in his own trial - s17(2)
o Co-Accused if not tried separately from the D s17(3)
o Sovereign, GG, Governor of a state, administrator of state s15(1)
o Members of Parliament (if sitting) s15(2)
o Spouse, defacto, parent or child of the accused s18 & s19*
Exception: if in relation to domestic violence or sexual assault/harm to
children, spouse MUST give evidence (s19)
o Judges / Jurors (in trial in which they were acting) s16

7.5 Evidence
Sworn Evidence
S21: witness who is competent to give evidence is required to give sworn evidence
Before giving evidence, the witness must take an oath or make an Affirmation that
they will tell the truth:
o I swear by Almighty God that the evidence I shall give will be the truth, the
whole truth and nothing but the truth
o I solemnly and sincerely declare and affirm that the evidence I shall give will
be the truth, the whole truth and nothing but the truth
Evidence Act 1995 (NSW)
21 Sworn evidence to be on oath or affirmation
(1) A witness in a proceeding must either take an oath, or make an affirmation, before
giving evidence.
(2) Subsection (1) does not apply to a person who gives unsworn evidence under section
13.
(3) A person who is called merely to produce a document or thing to the court need not
take an oath or make an affirmation before doing so.
(4) The witness is to take the oath, or make the affirmation, in accordance with the
appropriate form in Schedule 1 or in a similar form.

30

(5) Such an affirmation has the same effect for all purposes as an oath.
Unsworn Evidence
A person who is incompetent to give sworn evidence may give unsworn evidence
if the Court is satisfied the Witness:
o understands the difference between the truth and a lie;
o understands the importance of telling the truth;
o gives an appropriate response when asked if he will tell the truth.
*Note: must tell jury that when assessing the value of this evidence, it is unsworn
evidence (not carrying the same weight as sworn evidence) and thus there is a risk
attached to it e.g. young child etc
NSW: accused cannot make an unsworn statement on his own behalf
Evidence Act 1995 (NSW)
13 Competence: lack of capacity
(3) A person who is competent to give evidence about a fact is not competent to give
sworn evidence about the fact if the person does not have the capacity to understand that,
in giving evidence, he or she is under an obligation to give truthful evidence.
(5) A person who, because of subsection (3), is not competent to give sworn evidence is
competent to give unsworn evidence if the 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, the answer to, and that he or she should tell the court if this occurs, and
(c) that he or she may be asked questions that suggest certain statements are true or untrue
and that he or she should agree with the statements that he or she believes are true and
should feel no pressure to agree with statements that he or she believes are untrue
7.6

Calling Witnesses
One of the main ways to adduce evidence in court is through the calling and
questioning the witness
Generally parties to the litigation who decide what witnesses are to be called and in
what orders
R v Apostilides (1984) 154 CLR 563
o Crown prosecutor alone bears the responsibility of deciding whether a person
will be called as a witness for the Crown.
o A decision of the prosecutor not to call a particular person as a witness will
only constitute a ground for setting aside a conviction if, when viewed against
the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage
of justice.
R v Kneebone (1999) 47 NSWLR 450
o The Crown must meet the obligations that were identified in Apostilides
because the Prosecutor is obliged to present the case fairly. This is an import
part of the Duties of the Prosecutor.
A prosecutor must present all material without fear or favour
o Prosecutor continues to have an obligation to the Crown to ensure that a
prosecution proceeds fairly. Failing to call an important witness may lead to a
miscarriage of justice.

31

Question of fairness and balance on part of Prosecutor See also

Whitehorn v The Queen (1983) 152 CLR 657 (Deane, J. at 663-664)

Can the Judge Call a Witness?

Apostilides: only in extraordinary circumstances should the judge call a witness on his
own volition.
o If the judge feels that there may be a miscarriage of justice, the judge is
permitted to call a witness (only in extraordinary circumstances)
R v Damic [1982] 2 NSWLR 750
o D, self-represented, charged with murder. Judge thought D was fundamentally
incapable of leading a proper defence (serious mental illness). D refused to
raise mental illness as his defence Judge considered that this did not accord
to the principles of a fair trial.
o Judge called a psychiatrist to assess the fitness of D to represent himself, and
the psychiatrist was then called as a witness to testify about the Ds fitness.
Had the judge not called that witness, and had D been convicted, the
conviction would have been unfair and vulnerable to being overturned on
appeal
Failure to Give or Call Evidence
How does the law address the situation where the Defendant elects to remain silent at trial?
D has the right to remain silent at trial and put the Prosecution to proof. Consequently
may elect not to give evidence or not call evidence on his behalf.
S20:
o Prosecution is not permitted to make comment about the Ds election not to
give evidence
o The Judge or other party may comment on the Ds election but must not make
a comment that suggests / infers that the D is guilty of the offence.
o *Note: s20 only applies to criminal proceedings for indictable offences
s20(4): another D may comment on the Ds election not to call spouse / child because
the spouse / child believed that the Dis guilty of the offence.
Only in a rare and exceptional case, where the facts would be peculiarly within the
knowledge of the D, will the Judge be permitted to make an adverse comment about
the Ds failure to give evidence (Weissensteiner v R HC)
If the accused does not give evidence in a trial , these directions should be given:
(1) the silence of the accused is not evidence against the accused (Azzopardi HC)
(2) the silence of the accused cannot be treated as an admission of guilt (OGD
(1997) 45 NSWLR 744, R v Baker [2001] NSWCCA 151, Azzopardi HC),
(3) the silence of the accused cannot be used to fill gaps in the prosecution case
(Azzopardi HC ), and
(4) the silence of the accused cannot be used as a make-weight in assessing
whether the Crown has proved its case beyond reasonable doubt (Azzopardi
HC)
How does the law address the fact that a party fails to call evidence that the party would
reasonably be expected to?

32

Jones v Dunkel HC relates to civil cases the P does not call a witness that they would
reasonably be expected to have called as a result the trial judge may draw an
adverse inference from that failure.
o Civil: safe to trial judge to infer/draw adverse inference who fails to call a
particular witness who you think would otherwise be called
o DOES NOT APPLY TO CRIMINAL MATTERS
The application of Jones v Dunkel in criminal matters has been repeatedly overruled
(Dyers)
Dyers: the right to silence is protected by s20, preventing a trial judge from making
any adverse comment. (noting that s20 does not apply to civil matters)
Mahmood v WA HC: where a witness, who might have been expected to be called
and to give evidence on a matter, is not called by the prosecution, the question is not
whether the jury may properly reach conclusions about issues of fact but whether, in
the circumstances, they should entertain a reasonable doubt about the guilt of
the accused. See also R v Louizos [2009] NSWCCA [54-57].
o CRIMINAL: If a witnesses who expected to be called and wasnt, the jury
shouldnt be worried about reaching certain matters of fact, they should be
worried that prosecution hasnt called material witness

7.7 Questioning Witnesses

Evidence Act 1995 (NSW)
26 Courts control over questioning of witnesses
The court may make such orders as it considers just in relation to:
(a) the way in which witnesses are to be questioned, and
(b) the production and use of documents and things in connection with the questioning of
witnesses, and
(c) the order in which parties may question a witness, and
(d) the presence and behaviour of any person in connection with the questioning of
witnesses
29 Manner and form of questioning witnesses and their responses
(1) A party may question a witness in any way the party thinks fit, except as provided by
this Chapter or as directed by the court.
(2) A court may, on its own motion or on the application of the party that called the
witness, direct that the witness give evidence wholly or partly in narrative form.
(3) Such a direction may include directions about the way in which evidence is to be given
in that form.
(4) Evidence may be given in the form of charts, summaries or other explanatory material
if it appears to the court that the material would be likely to aid its comprehension of other
evidence that has been given or is to be given.
Adducing and testing testimonial evidence
Three stage process used by counsel to adduce and test evidence:
o Examination-in-Chief
Witness is called, get up on witness box, give evidence by way of
narrative i.e. questions asked provoking narrative such as who, what,
when why
Party who calls the witness will commence by taking the witness
through his evidence-in-chief. (Non-leading questions - s37)
33

o Cross-Examination
Opposing Party will test the evidence of Witness hoping to undermine
it or bolster his / her own case. (Leading questions s42)
o Re-Examination
Our turn again to talk to witness and ask questions which came out of
that evidence
If need be, the first party may re-examine the witness in order to
explain any points of confusion or unfavourable evidence. (Nonleading questions s37)
Evidence Act 1995 (NSW)
39 Limits on re-examination
On re-examination:
(a) a witness may be questioned about matters arising out of evidence given by the witness
in cross-examination, and
(b) other questions may not be put to the witness unless the court gives leave.
Ask questions of witness that have link that arise out of question
o Cant start a new line of questioning without leave
Leading Questions
A question asked of a Witness that:
o directly or indirectly suggests a particular answer to the question, or
Proposition format
Type of question with a y/n answer
o Assumes the existence of a fact the existence of which is in dispute in the
proceeding and as to the existence of which the witness has not given evidence
before the question is asked.
E.g. when you belted your wife and murdered her, what were you
thinking (it assumes the wife was belted and murdered even though its
not proved yet)
Non-leading
o When was the last time you saw the woman?
o How tall was the man that you saw?
o What happened when you entered the bank?
Leading
o The last time you saw the woman was about noon?
o The man was approx 180cm tall, wasnt he?
o Is it true that when you entered the bank, a shot was fired by the Accused?
The Rule in Browne v Dunn
Requires a cross-examining party that intends to contradict a witness by adducing
other evidence, to put as much of their own case that concerns that witness to them,
and if it is intended to suggest that a witness is not speaking the truth on a particular
matter, that their attention is drawn to what will be suggested about it so that they
might have an opportunity to explain.
It is not a rule of evidence - it is a rule of procedural fairness.
If the rule is not observed, there are several different ways that the Court can deal with
the issue:

34

o Prevent non-compliant party from submitting that opponents evidence should

not be believed.
o Exclude evidence given by non-compliant party.
o Recall Witness: s46
o Allow cross - examination of non-compliant party
o Comment on non-compliance; lesser weight given to their evidence.
Reviving Memory
S32: a witness must not, in the course of giving evidence, use a document to try to
revive his memory about a fact or opinion unless the court gives leave
S33: despite s32, in any criminal proceeding, a police officer may give evidence in
chief for the prosecution by reading or being led through a written statement
previously made by the police officer
S34: court may, on the request of a party, give such directions as are appropriate to
ensure that specified documents and things used by a witness otherwise than while
giving evidence to try to revive his memory are produced to the party for the purposes
of the proceeding. - court may refuse to admit the revived memory evidence if,
without reasonable excuse, the directions have not been complied with
Unfavourable witnesses
Evidence Act 1995 (NSW)
38 Unfavourable witnesses
(1) A party who called a witness may, with the leave of the court, question the witness, as
though the party were cross-examining the witness, about:
(a) evidence given by the witness that is unfavourable to the party, or
(b) a matter of which the witness may reasonably be supposed to have knowledge and
about which it appears to the court the witness is not, in examination in chief, making a
genuine attempt to give evidence, or
(c) whether the witness has, at any time, made a prior inconsistent statement.
If call witness and dont give answers you expect them to (your witness is being a
dick), you can have the person declared unfavorable witness. If allowed you can cross
examine and ask leading questions
S38 s43 s 106
o For s106 see p 38
Improper questions
Evidence Act 1995 (NSW)
41 Improper questions
(1) The court must disallow a question put to a witness in cross-examination, or inform the
witness that it need not be answered, if the court is of the opinion that the question
(referred to as a disallowable question):
(a) is misleading or confusing, or
(b) is unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or
repetitive, or
(c) is put to the witness in a manner or tone that is belittling, insulting or otherwise
inappropriate, or
(d) has no basis other than a stereotype (for example, a stereotype based on the witnesss
sex, race, culture, ethnicity, age or mental, intellectual or physical disability).

35

Court has discretion to disallow questions put to a witness in cross examination

because its misleading, harassing etc

Prior inconsistent statements of witness

Evidence Act 1995 (NSW)
43 Prior inconsistent statements of witnesses
(1) A witness may be cross-examined about a prior inconsistent statement alleged to have
been made by the witness
(2) If, in cross-examination, a witness does not admit that he or she has made a prior
inconsistent statement, the cross-examiner is not to adduce evidence of the statement
otherwise than from the witness unless, in the cross-examination, the cross-examiner:
(a) informed the witness of enough of the circumstances of the making of the statement to
enable the witness to identify the statement, and
(b) drew the witnesss attention to so much of the statement as is inconsistent with the
witnesss evidence.
Witness can be cross examined about prior inconsistent statement (compare what
theyre saying in court now to what they said previously to e.g. police, driver etc)

36

Credibility of evidence

Evidence may have >1 reason for being relevant i.e. for credibility and some other
reason (hearsay) Papakosmas

What is Credibility?
Evidence Act 1995 (NSW)
Part 1 Definitions
credibility of a witness means the credibility of any part or all of the evidence of the
witness, and includes the witnesss ability to observe or remember facts and events about
which the witness has given, is giving or is to give evidence.
Credible evidence is relevant evidence because in affecting the probability that the W
is telling the truth, it in turn affects the probability of the existence of the facts about
which they are testifying
General premise is that courts are interested in hearing evidence that is reliable,
honest and therefore credible. The rules pertaining to credibility are about the quality
of the evidence.
Courts are not interested in hearing about blemishes upon the reputation, history or
morality of a witness unless those blemishes could affect the quality of the evidence
the witness can give.
o Fraudulent history of not telling the truth. This is the type of information we
need to look at
This type of evidence extends beyond the veracity of the evidence given by the W to
whether the W has the capability to be reliable.
o Not just the evidence, its the way they give it
o Thus whats the quality of the evidence, not just the evidence they are giving
Reasons why you would wish to use credibility evidence.
1. Attack the credibility of an opponents witness
2. Bolster the credibility of your own witness.
3. Attack the credibility of your own witness, for instance, if they are an unfavourable
witness.
a. Declared unflavoured witness under s38
b. e.g. cross-examine on prior inconsistent statement
s102 The Credibility Rule
Evidence Act 1995 (NSW)
102 The credibility rule
Credibility evidence about a witness is not admissible.
Blanket exclusion
s101A (amendment)
Evidence Act 1995 (NSW)
101A Credibility evidence
Credibility evidence, in relation to a witness or other person, is evidence relevant to the
credibility of the witness or person that:
(a) is relevant only because it affects the assessment of the credibility of the witness or
person, or
(b) is relevant:

37

(i) because it affects the assessment of the credibility of the witness or person, and
(ii) for some other purpose for which it is not admissible, or cannot be used, because of a
provision of Parts 3.2 to 3.6.
Notes.
1
Sections 60 and 77 will not affect the application of paragraph (b), because they cannot apply to evidence
that is yet to be admitted.
2
Section 101A was inserted as a response to the decision of the High Court of Australia in Adam v The
Queen (2001) 207 CLR 96.

Credibility evidence falls within 2 broad umbrellas:

1. S101A(a): is relevant only because that evidence affects the assessment of that
credibility; or
2. S101A(b): is relevant because that evidence affects that assessment of
credibility and is also relevant for some other purpose (hearsay) for which it is
not admissible, or cannot be used

1st column
o Material has dual purpose
o Evidence is admissible for its non-credibility purpose (hearsay)
o If this is so, the credibility rule (s102) wont apply at all
o Premise: if it can be used for 1 purpose, it should be allowed to be used for
another purpose
nd
2 column
o Evidence that is relevant only to credibility
o If this is the case, need to go through s102 exclusion OR s108A exclusion
S102: more common exclusion

38

 Deals with credibility of the witness

S108A:
Deals with credibility of out of court statement made by
somebody who is a non-witness
o Exceptions
If yes, evidence is admissible
If no, evidence is inadmissible
rd
3 column
o Material has dual purpose (credibility and hearsay)
o Non-credibility purpose doesnt apply. Its inadmissible for hearsay purpose
(Adams)
o Then treat it as being relevant only for credibility (s102), but do exclusions
apply, if yes-admissible and if no-not admissible

S108A
Evidence Act 1995 (NSW)
108A Admissibility of evidence of credibility of person who has made a previous
representation
(1) If:
(a) evidence of a previous representation has been admitted in a proceeding, and
(b) the person who made the representation has not been called, and will not be called, to
give evidence in the proceeding,
credibility evidence about the person who made the representation is not admissible unless
the evidence could substantially affect the assessment of the persons credibility.
(2) Without limiting the matters to which the court may have regard for the purposes of
subsection (1), it is to have regard to:
(a) whether the evidence tends to prove that the person who made the representation
knowingly or recklessly made a false representation when the person was under an
obligation to tell the truth, and
(b) the period that elapsed between the doing of the acts or the occurrence of the events to
which the representation related and the making of the representation.
8.1

Exceptions to Credibility Rule

Evidence adduced in cross-examination (ss103 & 104)
o S104 HAS TO BE READ IN CONJUNCTION WITH S103
Evidence in rebuttal of denials (s106)
Evidence to re-establish credibility (s108)
Evidence of persons with specialised knowledge (s108C)
Character of accused persons (s110)

ss 103-104: Cross Examination as to Credibility

Evidence Act 1995 (NSW)
103 Exception: cross-examination as to credibility
(1) The credibility rule does not apply to evidence adduced in cross-examination of a
witness if the evidence could substantially affect the assessment of the credibility of the
witness.
(2) Without limiting the matters to which the court may have regard for the purposes of
39

subsection (1), it is to have regard to:

(a) whether the evidence tends to prove that the witness knowingly or recklessly made a
false representation when the witness was under an obligation to tell the truth, and
(b) the period that has elapsed since the acts or events to which the evidence relates were
done or occurred.
S103(1)
o Could = capable of substantially affecting the assessment of the credibility of
the witness, as opposed to whether it is likely to do so (R v Shamouil 2006
NSW)
o R v Lodhi 2006 NSW: Whealey J- it needs to be able to substantial affect the
witness i.e. impact on the witnesses credibility to a substantial effect
Cross examination is permitted for:
o Testing the capacity / opportunity for accurate observation / recollection by
Witness
o Testing bias / motive for Witness to be untruthful
o Exploring previous convictions for dishonesty
o Prior Inconsistent Statements
o Occasions where W has failed to tell truth when under an obligation to do so
S104
o S104(1): Applies in addition to section 103 in criminal cases
o S104(2): D must not be cross-examined about a matter that is relevant to the
assessment of the Ds credibility, unless the court gives leave
o S104(3): Despite s104(2), leave is not required for cross-examination by the
prosecutor about whether the D:
a) is biased or has a motive to be untruthful, or
b) is, or was, unable to be aware of or recall matters to which his or her
evidence relates, or
c) has made a prior inconsistent statement.
o S104(4): leave must not be given for cross-examination by the prosecutor
under s104(2) unless evidence adduced by the D has been admitted that:
a) tends to prove that a witness called by the prosecutor has a tendency to
be untruthful, and
b) is relevant solely or mainly to the witnesss credibility.
o s104(6), prevents credibility evidence being adduced against a co-accused
unless he / she has given evidence adverse to another co-accused and that
evidence has been admitted. If they do so, they may then be cross examined
on credibility, subject to rest of s104.
*Note: s104 must be read together with s103
S106: Rebutting Denials
S106(1)(a)
o General rule: allegations denied under cross examination may not be rebutted
if the evidence is only relevant to the credibility of the W
Answer given by W is final
Unable to call evidence from another W in order to rebut the denial.
S106(1)(b): can only rebut denials with leave of the Court
Evidence Act 1995 (NSW)
106 Exception: rebutting denials by other evidence
40

(1) The credibility rule does not apply to evidence that is relevant to a witnesss credibility
and that is adduced otherwise than from the witness if:
(a) in cross-examination of the witness:
(i) the substance of the evidence was put to the witness, and
(ii) the witness denied, or did not admit or agree to, the substance of the evidence, and
(b) the court gives leave to adduce the evidence.
(2) Leave under subsection (1) (b) is not required if the evidence tends to prove that the
witness:
(a) is biased or has a motive for being untruthful, or
(b) has been convicted of an offence, including an offence against the law of a foreign
country, or
(c) has made a prior inconsistent statement, or
(d) is, or was, unable to be aware of matters to which his or her evidence relates, or
(e) has knowingly or recklessly made a false representation while under an obligation,
imposed by or under an Australian law or a law of a foreign country, to tell the truth.
S108: Re-establishing Credibility
Evidence Act 1995 (NSW)
108 Exception: re-establishing credibility
(1) The credibility rule does not apply to evidence adduced in re-examination of a witness.
(2) (Repealed)
Note. The Commonwealth Act includes a subsection referring to section 105 of that Act.

(3) The credibility rule does not apply to evidence of a prior consistent statement of a
witness if:
(a) evidence of a prior inconsistent statement of the witness has been admitted, or
(b) it is or will be suggested (either expressly or by implication) that evidence given by the
witness has been fabricated or re-constructed (whether deliberately or otherwise) or is the
result of a suggestion,
and the court gives leave to adduce the evidence of the prior consistent statement.
S108C: Specalised knowledge
Evidence Act 1995 (NSW)
108C Exception: evidence of persons with specialised knowledge
(1) The credibility rule does not apply to evidence given by a person concerning the
credibility of another witness if:
(a) the person has specialised knowledge based on the persons training, study or
experience, and
(b) the evidence is evidence of an opinion of the person that:
(i) is wholly or substantially based on that knowledge, and
(ii) could substantially affect the assessment of the credibility of the witness, and
(c) the court gives leave to adduce the evidence.
(2) To avoid doubt, and without limiting subsection (1):
(a) a reference in that subsection to specialised knowledge includes a reference to
specialised knowledge of child development and child behaviour (including specialised
knowledge of the impact of sexual abuse on children and their behaviour during and
following the abuse), and
41

(b) a reference in that subsection to an opinion of a person includes, if the person has
specialised knowledge of that kind, a reference to an opinion relating to either or both of
the following:
(i) the development and behaviour of children generally,
(ii) the development and behaviour of children who have been victims of sexual offences,
or offences similar to sexual offences
S110: Character of the accused
Evidence Act 1995 (NSW)
110 Evidence about character of accused persons
(1) The hearsay rule, the opinion rule, the tendency rule and the credibility rule do not
apply to evidence adduced by a defendant to prove (directly or by implication) that the
defendant is, either generally or in a particular respect, a person of good character.
(2) If evidence adduced to prove (directly or by implication) that a defendant is generally a
person of good character has been admitted, the hearsay rule, the opinion rule, the tendency
rule and the credibility rule do not apply to evidence adduced to prove (directly or by
implication) that the defendant is not generally a person of good character.
(3) If evidence adduced to prove (directly or by implication) that a defendant is a person of
good character in a particular respect has been admitted, the hearsay rule, the opinion rule,
the tendency rule and the credibility rule do not apply to evidence adduced to prove
(directly or by implication) that the defendant is not a person of good character in that
respect.
Rape Shield Law
Criminal Procedure Act 1986 (NSW)
293 Admissibility of evidence relating to sexual experience
(1) This section applies to proceedings in respect of a prescribed sexual offence.
(2) Evidence relating to the sexual reputation of the complainant is inadmissible.
(3) Evidence that discloses or implies:
(a) that the complainant has or may have had sexual experience or a lack of sexual
experience, or
(b) has or may have taken part or not taken part in any sexual activity,
is inadmissible.
(4) Subsection (3) does not apply:
(a) if the evidence:
(i) is of the complainants sexual experience or lack of sexual experience, or of sexual
activity or lack of sexual activity taken part in by the complainant, at or about the time of
the commission of the alleged prescribed sexual offence, and
(ii) is of events that are alleged to form part of a connected set of circumstances in which
the alleged prescribed sexual offence was committed,
(b) if the evidence relates to a relationship that was existing or recent at the time of the
commission of the alleged prescribed sexual offence, being a relationship between the
accused person and the complainant,

42

(c) if:
(i) the accused person is alleged to have had sexual intercourse (as defined in section 61H
(1) of the Crimes Act 1900) with the complainant, and the accused person does not concede
the sexual intercourse so alleged, and
(ii) the evidence is relevant to whether the presence of semen, pregnancy, disease or injury
is attributable to the sexual intercourse alleged to have been had by the accused person,
(d) if the evidence is relevant to:
(i) whether at the time of the commission of the alleged prescribed sexual offence there
was present in the complainant a disease that, at any relevant time, was absent in the
accused person, or
(ii) whether at any relevant time there was absent in the complainant a disease that, at the
time of the commission of the alleged prescribed sexual offence, was present in the
accused person,
(e) if the evidence is relevant to whether the allegation that the prescribed sexual offence
was committed by the accused person was first made following a realisation or discovery
of the presence of pregnancy or disease in the complainant (being a realisation or discovery
that took place after the commission of the alleged prescribed sexual offence),
(f) if the evidence has been given by the complainant in cross-examination by or on behalf
of the accused person, being evidence given in answer to a question that may, pursuant to
subsection (6), be asked,
and if the probative value of the evidence outweighs any distress, humiliation or
embarrassment that the complainant might suffer as a result of its admission.
Shield sexual assault complainants from unwarranted further humiliation
Operate in addition to the rules about improper questions
Sexual reputation of the complainant cannot be called into question and cannot be
admissible

43

9
9.1

Documents

Definitions
Proof of contents of documents (s48)
Documents in foreign countries (s49)
o Exam: know ss48-49
Proof of voluminous or complex documents (s50)
o What to do when we have 52 boxes of bank statements etc
o Essentially by way of summary
Original document rule abolished (s51)
o Abolished all CL rule where original doc was required
*Note: need to differentiate between does the doc exist (e.g. will) and what is in the
doc
o Step 1: get the content of the doc into evidence

9.2 Definition of Document

Evidence Act 1995 (NSW)
Part 1 Definitions
document means any record of information, and includes:
(a) anything on which there is writing, or
(b) anything on which there are marks, figures, symbols or perforations having a meaning
for persons qualified to interpret them, or
(c) anything from which sounds, images or writings can be reproduced with or without the
aid of anything else, or
(d) a map, plan, drawing or photograph.
Note. See also clause 8 of Part 2 of this Dictionary on the meaning of document.
Part 2 Other expressions
8 References to documents
A reference in this Act to a document includes a reference to:
(a) any part of the document, or
(b) any copy, reproduction or duplicate of the document or of any part of the document, or
(c) any part of such a copy, reproduction or duplicate.
9.3

Proof of Contents of Documents

s48 details under what circumstances we can tender doc etc
Under the EA, it is possible to:
o Tender the document itself s48(1)
o Tender a copy of it s48(1)(b)
o Adduce evidence as to its contents s48(1)(a)
o Tender a transcript of it s48(1)(c)
o For voluminous documents, it is also possible to tender a summary (with
leave) s50.
S48 also provides a way of utilising the contents of a document even though the
document in question is not available to the party. (ss 48(2) and 48(4) refer)
o Dont need to physically have doc in hand
Evidence Act 1995 (NSW)
48 Proof of contents of documents

44

(4) A party may adduce evidence of the contents of a document in question that is not
available to the party, or the existence and contents of which are not in issue in the
proceeding, by:
(a) tendering a document that is a copy of, or an extract from or summary of, the
document in question, or
(b) adducing from a witness evidence of the contents of the document in question.
Part 2 Other expressions- Dictionary
5 Unavailability of documents and things
For the purposes of this Act, a document or thing is taken not to be available to a party if
and only if:
(a) it cannot be found after reasonable inquiry and search by the party, or
(b) it was destroyed by the party, or by a person on behalf of the party, otherwise than in
bad faith, or was destroyed by another person, or
(c) it would be impractical to produce the document or thing during the course of the
proceeding, or
(d) production of the document or thing during the course of the proceeding could render a
person liable to conviction for an offence, or
(e) it is not in the possession or under the control of the party and:
(i) it cannot be obtained by any judicial procedure of the court, or
(ii) it is in the possession or under the control of another party to the proceeding concerned
who knows or might reasonably be expected to know that evidence of the contents of the
document, or evidence of the thing, is likely to be relevant in the proceeding, or
(iii) it was in the possession or under the control of such a party at a time when that party
knew or might reasonably be expected to have known that such evidence was likely to be
relevant in the proceeding.
R v Cassar & Sleiman [1999] NSWSC 651
FACTS: police lost paper and fax. Only evidence was running sheet
HELD:
Running sheet was admissible (it incorporated the salient details) pursuant to s48(4)
(a).
The police officer should have leave, pursuant to s32, to use the running sheet to try to
revive his memory.
The police officer could give oral evidence of what he saw in the registration form
pursuant to s48(4)(b), using the running sheet to refresh his recollection.
The registration form was a business record of the kind referred to in s 69 and that
proof of the contents of the form would be evidence of the fact.

45

10 Real Evidence

There are two categories of Real Evidence Identified.

1. S52: exhibits (physical object tendered as evidence)
2. S53: Views (demonstrations, experiments or inspections of locations).
s52
o Possible to adduce evidence other than through witness testimony or through
documents
o Includes physical, tangible objects such as the murder weapon.
S53: views
o Allow for the conduct of experiments, demonstrations and location inspections
o Factors that the judge needs to consider when contemplating whether to
conduct a view are set out in s53(3):
a) whether the parties will be present,
b) whether the demonstration, experiment or inspection will, in the
courts opinion, assist the court in resolving issues of fact or
understanding the evidence,
c) the danger that the demonstration, experiment or inspection might be
unfairly prejudicial, might be misleading or confusing or might cause
or result in undue waste of time,
d) in the case of a demonstrationthe extent to which the demonstration
will properly reproduce the conduct or event to be demonstrated,
e) in the case of an inspectionthe extent to which the place or thing to
be inspected has materially altered.

S54:
o Where a demonstration, experiment or inspection occurs, the court may draw
any reasonable inference from what it sees, hears or otherwise notices
o Neither the judge or any member of the jury is permitted to conduct a view
outside of the rules in s53 (Bilal Skafs case)
o Demonstrations and experiences are powerful. Court needs to be assured that
if this proceeds, its not going to cause unfair prejudice on any party, usually
the defendant

Views
R v Milat (1996) view allowed
o Judge had to decide whether to do the view of the forest given the ability of
the D to attend and the probative value of the evidence
o In criminal matters, if the location is going to be inspected, the D must be
given opportunity to attend (M chose not to attend)
o The view was allowed as long as:
EThere was a media ban
Explanations were given to the jury concerning the alteration of the
forest and how the geography of the area had changed since the
murders, and
The jury did not see the memorial to the victims at the forest entrance.

46

o the view was not unfairly prejudicial as D was given opportunity to attend
R v Bilal Skaf, R v Mohammed Skaf [2004] NSWCCA 37 view NOT allowed
o In the unauthorised view, some of the jury had regard to information that was
not evidence in the trial. Such information was obtained in circumstances
amounting to a want of procedural fairness in that the accused were unable to
test the material, comment upon it or call evidence to rebut or qualify it. The
court needs to weigh the possible prejudicial impact of this extrinsic
information upon the minds and deliberations of the jurors directly involved.
o Attempts to reconstruct material events or to conduct experiments are fraught
with danger, even if conducted under the control of the court. Conditions may
be different in perceptible and imperceptible ways, especially where there may
be movement and potentially variable lighting conditions or perspectives of
view. These dangers increase exponentially when a view, coupled with an
experiment, takes place in private and its impact comes to be assessed years
after the event.
o Here the irregularity did not affect the verdict. The two jurors treated what was
seen and done at the park as information that they took into account in arriving
at or confirming their conclusion that guilt had been established beyond
reasonable doubt.
Evans v R [2007] HCA 59: scope of s 53 is limited to demonstrations, experiments or
inspections which occur outside the courtroom

47

11 Hearsay

Relates to information that was not seen / heard by the W that is giving the evidence
they have been told about what happened by another person
E.g. Adam tells Belinda that he had bought a new laptop for his girlfriend, Clare, as a
surprise for her birthday.
o Only person who really knows the truth of the statement is Adam (the maker
of the representation). Evidence from both Belinda and Claire is Hearsay
because they did not see Adam buy the laptop.
Under EA, the Hearsay Rule forms part of the suite of Exclusionary Rules found in
Chapter 3 of the Act

11.1 The Hearsay Rule

A rule preventing the use of previous representations to prove the facts that were
intentionally asserted in the representation
o It is not a type of evidence
Hearsay purpose arises when someone relates what someone else said, not merely to
show that it was said, but to prove a fact they asserted
Subramaniam
o It is hearsay and inadmissible when the object [purpose] of the evidence is to
establish the truth of what is contained in the statement.
o It is not hearsay and is admissible when it is proposed to establish by the
evidence, not the truth of the statement, but the fact that it was made.
o Here the statement was admissible to show that statement was made
11.2 Key Terms
Representation
The EA does not define representation, but in the Dictionary of the Act states that
representations include:
a) an express or implied representation (whether oral or in writing may also
include silence or an action), or
b) a representation to be inferred from conduct, or
c) a representation not intended by its maker to be communicated to or seen by
another person, or
a. maker of the representation doesnt need to intend to broadcast it
d) a representation that for any reason is not communicated.
A representation is not confined to a matter which is relevant to the immediate facts in
issue; it may include a matter which is relevant to understand the facts in issue
(Ambrosoli). Eg. motive rather than mens rea
Previous Representation
Representation made otherwise than in the course of giving evidence in the proceeding in
which evidence of the representation is sought to be adduced
Maker of Representation
The person who made previous representation.

48

Fact Intended to be Asserted

What did the Maker of the representation mean by his / her representation?
Not concerned with the actual representation itself concerned with the fact that the
maker of the representation intended to assert. Eg. Bob said the Band he saw was
cool
o Which cool was he trying to assert?
11.3 s59 The Hearsay Rule-Exclusion of Hearsay Evidence
Evidence Act 1995 (NSW)
59 The hearsay ruleexclusion of hearsay evidence
(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 that the person intended to assert by
the representation.
(2) Such a fact is in this Part referred to as an asserted fact.
(2A) For the purposes of determining under subsection (1) whether it can reasonably be
supposed that the person intended to assert a particular fact by the representation, the court
may have regard to the circumstances in which the representation was made.
Note. Subsection (2A) was inserted as a response to the decision of the Supreme Court of NSW in R v
Hannes (2000) 158 FLR 359.

If a person makes a representation and intentionally asserts a fact by way of that

representation, (expressly or impliedly), then evidence of that representation is not
admissible to prove that asserted fact.
o Show that what was said is true and NOT that something was said

Implied Assertions & Intention

In EA only intended assertions (express or implied) will be subject to the Hearsay
Rule (CL captured both intended an unintended representations)
Walton v The Queen (1989) 166 CLR 283: Hello Daddy
o CL: captured by Hearsay Rule
o EA: unintentional and would not be subject to s59.
Under EA only assertions that are intended are looked at
So if the express or implied assertion is unintended then it is not caught by the
Hearsay Rule.
R v Hannes [2000] NSWCCA 503
o Spigelman CJ: intended cannot be determined by whatever the party wants
to read into it. The requirement is to be examined objectively.
11.4 Process so far
1. Identify the previous representation
2. Who made the representation?
3. Intention of the Makers representation
a. If made unintentionally it will not be captured by s59
b. If made intentionally, exclusion rule applies.
4. Identify the purpose of the evidence
a. Is it being adduced to prove the existence of an asserted fact?
49

i. Yes = hearsay s59 applies

ii. No = not hearsay s59 does not apply).
11.5 First Hand and More Remote Hearsay
S62: First Hand Hearsay is evidence where it may be reasonably supposed that the
Maker of the previous representation has personal knowledge of the asserted fact
because of what he has seen, heard or otherwise perceived and makes a representation
about that fact to the Witness
Where the previous representation containing an asserted fact was made in the
presence of the person who gives evidence about it.
o There is only one degree of separation between the Maker of the
representation and the Witness relating that asserted fact.
E.g. heard the couple next day throwing things and they tell somebody
else
If there is a greater degree of separation between the Maker of the previous
representation and the person giving the evidence (W), that is referred to as More
Remote Hearsay.
Examples
o Molly says to Wendy that she saw the man with the gun.
Wendys evidence is First Hand Hearsay about Molly having seen that
man with the gun because it has come directly from the Maker of the
previous representation (Molly) who has personal knowledge of the
asserted fact.
o Molly says to Wendy that she saw the man with gun. Wendy then tells Richard
about what Molly told her.
Telling Richard is More Remote Hearsay because asserted fact has not
come directly from the Maker who has personal knowledge of what
happened.
11.6 Exceptions to Hearsay Rule
First-hand hearsay:
o S63: civil proceedings - maker of representation not available
o S64: civil proceedings - maker of representation is available
o S65: criminal proceedings - maker of representation is not available
o S66: criminal proceedings - maker of representation is available
S66A: contemporaneous statements about a persons health etc
S69: business records
S72: ATSI traditional laws and customs
S75: Use of evidence in Interlocutory proceedings
*** Evidence relevant for a non-hearsay purpose (s60)
*** Admissions (s81)
Maker available
Evidence Act 1995 (NSW)
4 Unavailability of persons- Dictionary
50

(1) For the purposes of this Act, a person is taken not to be available to give evidence
about a fact if:
(a) the person is dead, or
(b) the person is, for any reason other than the application of section 16 (Competence and
compellability: judges and jurors), not competent to give the evidence, or
(c) the person is mentally or physically unable to give the evidence and it is not reasonably
practicable to overcome that inability, or
(d) it would be unlawful for the person to give the evidence, or
(e) a provision of this Act prohibits the evidence being given, or
(f) all reasonable steps have been taken, by the party seeking to prove the person is not
available, to find the person or secure his or her attendance, but without success, or
(g) all reasonable steps have been taken, by the party seeking to prove the person is not
available, to compel the person to give the evidence, but without success.
(2) In all other cases the person is taken to be available to give evidence about the fact.
ss(c): signed secret contract and which says you cant talk about it
ss(f): person is intended to be called by witness and the party seeking to call them
cant do it because e.g. cant find them
ss(g): person compelled, in contempt of court and still wont
s63- civil, maker not available
Evidence Act 1995 (NSW)
63 Exception: civil proceedings if maker not available
(1) This section applies in a civil proceeding if a person who made a previous
representation is not available to give evidence about an asserted fact.
(2) The hearsay rule does not apply to:
(a) evidence of the representation that is given by a person who saw, heard or otherwise
perceived the representation being made, or
(b) a document so far as it contains the representation, or another representation to which
it is reasonably necessary to refer in order to understand the representation.
Notes.
1
Section 67 imposes notice requirements relating to this subsection.
2
Clause 4 of Part 2 of the Dictionary is about the availability of persons.

Requires that the W saw, heard or perceived the representation being made by the
Maker.
If a party intends to call such evidence to be used for its Hearsay purpose (ie. to prove
the asserted fact in the previous representation), that party must conform provide
Notice to the other party pursuant to s67

S64- civil, maker available

Evidence Act 1995 (NSW)
64 Exception: civil proceedings if maker available
(1) This section applies in a civil proceeding if a person who made a previous
representation is available to give evidence about an asserted fact.
(2) The hearsay rule does not apply to:
(a) evidence of the representation that is given by a person who saw, heard or otherwise

51

perceived the representation being made, or

(b) a document so far as it contains the representation, or another representation to which
it is reasonably necessary to refer in order to understand the representation,
if it would cause undue expense or undue delay, or would not be reasonably practicable, to
call the person who made the representation to give evidence.
Note. Section 67 imposes notice requirements relating to this subsection. Section 68 is about objections to
notices that relate to this subsection.

(3) If the person who made the representation has been or is to be called to give evidence,
the hearsay rule does not apply to evidence of the representation that is given by:
(a) that person, or
(b) a person who saw, heard or otherwise perceived the representation being made.
s64(2): enables a party to adduce the Hearsay evidence through a W if it would cause
undue delay or expense, or would be not be reasonably practicable to call the Maker
of the previous representation.
o This is very broadly defined and applied and takes into account cost of
securing Maker, length of trial, health and location of maker.
s64(3) provides that if the Maker is called to give evidence, either:
o The Maker of the previous representation; or
o A person who saw, heard or otherwise perceived the previous representation
can also give evidence of the asserted fact.
Maker is available but e.g. its too costly, ill health etc, for these reasons were not
calling the maker of the representation, were going to rely the same sort of thing as
s63
S65- criminal, maker not available
Evidence Act 1995 (NSW)
65 Exception: criminal proceedings if maker not available
(1) This section applies in a criminal proceeding if a person who made a previous
representation is not available to give evidence about an asserted fact.
(2) The hearsay rule does not apply to evidence of a previous representation that is given
by a person who saw, heard or otherwise perceived the representation being made, if the
representation:
(a) was made under a duty to make that representation or to make representations of that
kind, or
(b) was made when or shortly after the asserted fact occurred and in circumstances that
make it unlikely that the representation is a fabrication, or
(c) was made in circumstances that make it highly probable that the representation is
reliable, or
(d) was:
(i) against the interests of the person who made it at the time it was made, and
(ii) made in circumstances that make it likely that the representation is reliable.
Note. Section 67 imposes notice requirements relating to this subsection.
(3) The hearsay rule does not apply to evidence of a previous representation made in the
course of giving evidence in an Australian or overseas proceeding if, in that proceeding,
the defendant in the proceeding to which this section is being applied:
(a) cross-examined the person who made the representation about it, or

52

(b) had a reasonable opportunity to cross-examine the person who made the representation
about it.
Note. Section 67 imposes notice requirements relating to this subsection.
(4) If there is more than one defendant in the criminal proceeding, evidence of a previous
representation that:
(a) is given in an Australian or overseas proceeding, and
(b) is admitted into evidence in the criminal proceeding because of subsection (3),
cannot be used against a defendant who did not cross-examine, and did not have a
reasonable opportunity to cross-examine, the person about the representation.
(5) For the purposes of subsections (3) and (4), a defendant is taken to have had a
reasonable opportunity to cross-examine a person if the defendant was not present at a time
when the cross-examination of a person might have been conducted but:
(a) could reasonably have been present at that time, and
(b) if present could have cross-examined the person.
(6) Evidence of the making of a representation to which subsection (3) applies may be
adduced by producing a transcript, or a recording, of the representation that is
authenticated by:
(a) the person to whom, or the court or other body to which, the representation was made,
or
(b) if applicable, the registrar or other proper officer of the court or other body to which
the representation was made, or
(c) the person or body responsible for producing the transcript or recording.
(7) Without limiting subsection (2) (d), a representation is taken for the purposes of that
subsection to be against the interests of the person who made it if it tends:
(a) to damage the persons reputation, or
(b) to show that the person has committed an offence for which the person has not been
convicted, or
(c) to show that the person is liable in an action for damages.
(8) The hearsay rule does not apply to:
(a) evidence of a previous representation adduced by a defendant if the evidence is given
by a person who saw, heard or otherwise perceived the representation being made, or
(b) a document tendered as evidence by a defendant so far as it contains a previous
representation, or another representation to which it is reasonably necessary to refer in
order to understand the representation.
Note. Section 67 imposes notice requirements relating to this subsection.
(9) If evidence of a previous representation about a matter has been adduced by a
defendant and has been admitted, the hearsay rule does not apply to evidence of another
representation about the matter that:
(a) is adduced by another party, and
(b) is given by a person who saw, heard or otherwise perceived the other representation
being made.
Note. Clause 4 of Part 2 of the Dictionary is about the availability of persons
S65(2):For the Prosecution, it is not enough that the unavailable maker of the
representation had personal knowledge of the asserted fact, and that evidence of the

53

representation will be given by a person who saw, heard or perceived the

representation being made the representation must have been made either:
a) Under a duty
b) Shortly after asserted fact occurred (reduces chance of fabrication)
c) In circumstances highly probable to be reliable (Conway v The Queen)
d) Against the interests of the maker.
Under ss65(3) 65(6): prosecution evidence of statements made in previous court
proceedings may be adduced for their Hearsay purpose as long as the D had
opportunity to cross-examine in those earlier proceedings.
o Eg. evidence in committal proceedings being used again at trial.
Puchalski v R: what is required is that D cross-examined the person in the earlier
proceeding or had a reasonable opportunity to do so the exception does not rely on
nature and extent of cross-examination.
R v Suteski: W was unsuccessfully compelled to give evidence and was held to be
unavailable for the purposes of the Act.
o If W has been unsuccessfully compelled to give evidence, they are
unavailable. This is NOT THE SAME as someone who is declared an
unfavourable witness (s38). An unfavourable witness is still considered to be
available
s65(8): essentially the same level as s63 (Civil Maker not available: person who
heard / saw/ perceived previous representation can give evidence of the asserted fact.
s65(9): if the D has adduced evidence and has previously been admitted, the hearsay
rule wont need to be applied in relation to that evidence
o Prosecution may adduce the evidence from a person who heard the making of
the alleged confession by a 3rd party but also heard other clarifying comments.

S66- criminal, maker available

Evidence Act 1995 (NSW)
66 Exception: criminal proceedings if maker available
(1) This section applies in a criminal proceeding if a person who made a previous
representation is available to give evidence about an asserted fact.
(2) If that person has been or is to be called to give evidence, the hearsay rule does not
apply to evidence of the representation that is given by:
(a) that person, or
(b) a person who saw, heard or otherwise perceived the representation being made,
if, when the representation was made, the occurrence of the asserted fact was fresh in the
memory of the person who made the representation.
(2A) In determining whether the occurrence of the asserted fact was fresh in the memory
of a person, the court may take into account all matters that it considers are relevant to the
question, including:
(a) the nature of the event concerned, and
(b) the age and health of the person, and
(c) the period of time between the occurrence of the asserted fact and the making of the
representation.
Note. Subsection (2A) was inserted as a response to the decision of the High Court of Australia in Graham v
The Queen (1998) 195 CLR 606.

54

(3) If a representation was made for the purpose of indicating the evidence that the person
who made it would be able to give in an Australian or overseas proceeding, subsection (2)
does not apply to evidence adduced by the prosecutor of the representation unless the
representation concerns the identity of a person, place or thing.
(4) A document containing a representation to which subsection (2) applies must not be
tendered before the conclusion of the examination in chief of the person who made the
representation, unless the court gives leave.
Note. Clause 4 of Part 2 of the Dictionary is about the availability of persons.

S66(2): in criminal proceedings where the maker of the previous representation is

available and the previous representation is to be used to prove the asserted fact (ie.
for its Hearsay purpose) the maker of the representation must be called to give
evidence.
o *Note: the occurrence of the asserted fact must be fresh in the memory of
the maker of the previous representation.
s66(3): s66(2) Hearsay exception does not apply to evidence of the previous
representation that is adduced by the Prosecution, which:
a) was made for the purpose of indicating what evidence that person would be
able to give (called a proof of evidence); and
b) deals with matters other than the identity of a person, place or thing.
Graham v The Queen (1998) 195 CLR 606:
o Father raped daughter. Daughter told someone 6 years later. HC said not fresh
o temporal relationship required will very likely be measured in hours or days,
not, as was the case here, in years
*Note: This strict requirement was considered too limiting and was
amended by s66(2A).
s66(2A) provides guidance to the Court when determining whether something is
fresh in the memory. Court may now take into account such things as
o The nature of the event concerned; and
o The age and health of the person; and
o The period of time between the occurrence of the asserted fact and the
representation.
Regina v XY [2010] NSWCCA 181: the temporal relationship between the asserted
fact and the making of the representation remains relevant but is in no way
determinative of the question. Importantly the court must now take into account the
nature of the event concerned.

S66A- statements about persons health etc

Hearsay rule does not apply to evidence of a previous representation made by a
person if the representation was a contemporaneous representation about the persons
health, feelings, sensations, intention, knowledge or state of mind.
a persons physical, mental state or intentions can be inferred by what they say.
o eg. The fact that the Sue says to William I have really bad a headache at the
moment can be adduced by William to prove that fact that Sue in fact did
have a headache at that time.

55

Some Other Hearsay Exceptions

s69
o Hearsay Rule does not apply to business documents, so that the documents can
be used to prove the facts about the business and what is contained in the
business document.
o Operates together with the rules about proving the contents of documents from
ss48-50.
Both business and document are very broadly defined, and the rationale here is to
save time. It is presumed that business records accurately record the business. If they
do not, a party would need to call evidence to prove that.
s70
o Similar exception to s69, and it applies to tags and labels.
o E.g. it can be presumed that a letter was in fact posted in Wagga on the 8 th of
June if that is what the postmark says
s71
o With electronic communications, information about who it came from, who it
was sent to, the time and date, wont be caught by the hearsay rule
s72
o Hearsay rule does not apply to evidence of a representation about the existence
or non-existence, or the content, of the traditional laws and customs of an
Aboriginal or Torres Strait Islander group.
11.7 Hearsay & Multi-Purpose Evidence
Hearsay runs in conjunction with credibility
o Generally: s101A- evidence that might be able to be used for credibility may
also have another purpose (hearsay)
E.g. Papakosmas
11.8 s60 Hearsay Exception
Evidence Act 1995 (NSW)
60 Exception: evidence relevant for a non-hearsay purpose
(1) The hearsay rule does not apply to evidence of a previous representation that is
admitted because it is relevant for a purpose other than proof of an asserted fact.
(2) This section applies whether or not the person who made the representation had
personal knowledge of the asserted fact (within the meaning of section 62 (2)).
Note. Subsection (2) was inserted as a response to the decision of the High Court of Australia in Lee v The
Queen (1998) 195 CLR 594.

(3) However, this section does not apply in a criminal proceeding to evidence of an
admission.
Note. The admission might still be admissible under section 81 as an exception to the hearsay rule if it is
first-hand hearsay: see section 82.

s60 provides a way of admitting evidence for its Non-Hearsay purpose (credibility)
and then allowing it to be used for its Hearsay purpose.
Evidence must already have been admitted for its Non-Hearsay purpose before s60
can become operative. (remember s101A)

56

Main use for s60 comes about where evidence of prior inconsistent statements (s104
and s106) and prior consistent statements (s108) have been admitted for their
Credibility purpose.
o s60 also has application with respect to factual evidence given as part of an
Experts opinion.
eg. Evidence that shows the basis of the Experts opinion (NonHearsay purpose) can also be used to prove the facts that formed the
basis of the opinion (Hearsay purpose).
s60(2): s60 applies to first hand and more remote forms of hearsay (post Lee)
s60(3): in a criminal matter, evidence of an Admission which is more remote than
First-hand Hearsay should not fall within the ambit of s60.
o s81 EA may provide an exception to the Hearsay Rule if the evidence of the
Admission is first-hand evidence.
Lee v The Queen (1998) 195 CLR 594
o Calins police statement
I was walking in the street
I saw Lee walking fast and looking sweaty
I said to him: Wheres my eighty dollars, you owe it to me.
Lee said: No, leave me alone, leave me alone.
I said: Im not f*ckin going to leave you alone til you give me my
eighty bucks. Where is it?
He said: I havent got it, leave me alone, cause Im running because I
fired two shots.
I said: What do you mean you fired two shots?
He said: I did a job and the other guy was with me bailed out.
o Police station: the scene of Cs Police Statement
Calin says Lee said, I did a job and fired two shots.
Calin is the person who saw, heard or otherwise perceived the
representation being made
Calins police statement is first-hand hearsay.
o Trial: the Court Room
Calin does not adopt his PR (no longer First-hand Hearsay)
Calin is an unfavourable witness: s38
Calin is XX on his PIS (s43): s106 Credibility exception applies
Know the process of s38. S43. S106
Exam: KNOW THIS PROCESS
o s60 could not be applied because it was not Calins intention to assert that
Lee had in fact fired the shots and committed the robbery. Because Calin could
not know whether Lee had done those things the only intention that can flow
from the Calin representation was that Lee had said these words.
It should be noted that the comments made by Lee to Calin, as
recorded in the previous representation (police statement) did not fall
within the Admission exception (s81) because it was not First Hand
Hearsay.

11.9 Approach to Hearsay Problem

57

58

12 Admissions
12.1 General Rule
Evidence Act 1995 (NSW)
81 Hearsay and opinion rules: exception for admissions and related representations
(1) The hearsay rule and the opinion rule do not apply to evidence of an admission.
(2) The hearsay rule and the opinion rule do not apply to evidence of a previous
representation:
(a) that was made in relation to an admission at the time the admission was made, or
shortly before or after that time, and
(b) to which it is reasonably necessary to refer in order to understand the admission.
S81
o Another exception to the hearsay
o Hearsay rule does not apply to admissions
12.2 Proving an Admission
Evidence Act 1995 (NSW)
Part 1 Definitions
admission means a previous representation that is:
(a) made by a person who is or becomes a party to a proceeding (including a defendant in
a criminal proceeding), and
(b) adverse to the persons interest in the outcome of the proceeding.
Types of Admissions
Categories of admissions:
1. Inculpatory
a. In: getting yourself into trouble
2. Exculpatory
a. Ex: getting yourself out of trouble
Inculpatory:
o Express or imply something that establishes guilt. eg.
I was pissed off with the guy, so I shot him. (express)
He was just asking for it. (implied)
I didnt complete the job because the account is in arrears. (express)
o Include:
Confessions
Acknowledge a relevant fact that tends to establish guilt / liability
Acknowledgement of something that goes towards establishing a
material fact in issue which Prosecution relies
An admission in a partys pleadings
Adopting someone elses representation as your own
Exculpatory
o Conduct that denies something.
o When you deny guilt, or deny knowledge about something, or deny a fact in
issue, that is an exculpatory representation. In itself, this is not adverse and
therefore not, on its face, an admission. Something more is required to turn it
into an admission. This might include:

59

Lying about something, which the Prosecution relies on as proof of

consciousness of guilt. That is, the Prosecution shows that you are
lying, and they argue that the reason you lied is because you know you
were guilty.
eg. saying I wasnt at home that night might be shown, through other
evidence to be untrue. The Prosecution will then argue that you lied
because you were at home engaged in some criminal activity.
Whether a lie is capable of demonstrating a consciousness of guilt amounting to an
implied admission will depend upon the terms of the statement, the circumstances in
which it is made, the nature of the offence charged and other evidence in the case (R v
Rich)
Edwards v R (1993) 178 CLR 193: Deane, Dawson and Gaudron JJ - jury should also
be instructed that there may be reasons for the telling of a lie apart from the realisation
of guilt and, where that is the explanation for the lie, they cannot regard it as an
admission.
Because a representation can be express or implied, oral or written, and can be
inferred from a persons conduct, the following examples may be construed as
admission by conduct:
o Running away when you see the police.
o Fleeing from the jurisdiction.
o Changing your story between arrest and trial.
o Nodding in reply to a question can be an admission by conduct.

12.3 Exclusions
S82: evidence of Admissions that is not first-hand
o Admission evidence found in s81, s82 qualifies that. If the material is not first
hand, s81 cannot apply
S83: use of admissions against third parties
o Cannot be used by another party unless the other party applies
S84: admissions influenced by violence and other conduct
S85: unreliable Admissions of accused persons
o Not talking about violence behaviour which prompted admission
o Talking about other factors which made admission unreliable
o If there is any likelihood that there may be issue in way admission was made,
it may casts doubt over reliability and it may be adverse
S86: Records of oral questioning of accused persons
S89 and 89A: Evidence of Silence
S82: Evidence of Admissions that is not first-hand
Under s82, for the Admissions exception (s81) to operate, evidence of the Admission
must be first-hand ie.
a) Made by a person who saw, heard or otherwise perceived the Admission being
made; or
b) It is a document in which the Admission is made.
*Note: s60 does not apply in a criminal proceeding to evidence of an admission.

60

Use of Admissions against third parties (s83)

Evidence of an Admission made by one party cannot be used against another party
(without consent)
o Eg. Admission by D1 cannot be used against D2, unless D2 consents (D2
could not elect to only rely on parts of D1s Admission all or nothing)
Admissions influenced by violence and certain other conduct (s84)
s84(1): for s81 to operate, the Court must be satisfied that the Admission, or the
making of the Admission was not influenced by:
a) Violent, oppressive inhuman or degrading behaviour towards the person
making the Admission or towards another person; or
b) A threat of conduct of that kind.
s84(2): D must raise the issue of such behaviour if he is going to have the Admission
excluded under s84(1)
The Court must be satisfied that the Admission was not influenced the conduct, on the
balance of probabilities (s142)
No consistent interpretation of what kind of conduct is anticipated here but many
judges tend only to admit admissions if they are clearly voluntary
o Tofilau v The Queen [2007] HCA 39: Whether the D confessed involuntarily,
turns on whether the importunacy of the police officers was so persistent, and
whether the insistence and the pressure were so sustained or undue, as to
overbear the Ds will. That depended on the particular circumstances
Unreliable Admissions of accused persons (s85)
Needs to be raised in conjunction with s84
Admissions made to police, either in official police questioning, or otherwise
There are particular procedures for dealing with Admissions to police, and ss85 and
86, together with parts of the Criminal Procedure Act, govern this. A court will need
to consider:
o the nature and manner of questioning
o whether any inducements or threats were made
o any relevant condition or characteristic of the person making the admission
(age, education, disability, personality, etc).
A court will look to all the circumstances in which an Admission is made to the police
before admitting it as an exception to the Hearsay Rule.
Records of oral questioning of accused persons (s86)
Only applies to oral admissions made by D in criminal proceedings where the
admission was made in response to a question / representation made by an
investigating official.
o Unless the record that was taken of what the person said in their admission in
response to questions, unless signed/annotated/marked which says it was true
during questioning process, that admission will not be allowed to be used
Document prepared recording the officials question and response not admissible
unless Defendant acknowledges that the statement is a true record of the question
and response (s86(2)). Acknowledgment must be made by signing, initialling /
marking the document (s86(3)).

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General rule: unless Admission to police is tape recorded, it will not be admissible
(s281 Criminal Procedure Act)

Evidence of silence (s89 & s89A)

Criminal proceeding: s89 provides that subject to the special requirements set out in
s89A, an unfavourable inference must not be drawn from evidence that a person failed
or refused:
a) to answer one or more questions, or
b) to respond to a representation,
put to that person by an investigating official, who at that time, was performing
functions in connection with the investigation of the commission, or possible
commission, of an offence.
o Any silence on behalf of person being questioned, cannot be used as an
unfavourable inference
For a serious indictable offence, s89A provides unfavourable inferences may be
drawn if D failed or refused to mention a fact that D could reasonably have been
expected to mention in the circumstances existing at the time, and that is relied on in
his defence in that proceeding. Special caution to this effect applies.
o Exception: if you choose to not say anything when questioned for a serious
indictable offence, adverse inferences can be made against you
o Before s89A can be applied, a caution needs to be given
o s89A(6): s89A doesnt apply to persons under 18 years or those with a
cognitive impairment.
s90 Discretion to Exclude Admissions
criminal proceeding: court may refuse to admit evidence of an admission, or refuse to
admit the evidence to prove a particular fact, if:
a) the evidence is adduced by the Prosecution, and
b) having regard to the circumstances in which the admission was made, it would
be unfair to a Defendant to use the evidence.
Applied where Court considers that the police conduct is may have brought about an
unreliable admission reasons may include: unfairness, impropriety, failure to
caution, not voluntary, forensic disadvantage (R v Swaffield: Pavic v The Queen
provides a useful guide although they were Common Law cases).
Operates as an additional safeguard to the operation of s85 and the Discretionary
Rules found in Part 3.11 EA.
Probative value and seriousness of offence not relevant to exercise of s90 Discretion
(R v Em [2003] NSWCCA 374).
Em v The Queen (2007) 232 CLR 67 majority held s90 differs from s138 EA s90 is
an extra safety net.
o HC: s90 is merely a safety net once weve explored others

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13 Opinion Evidence
13.1 What is Opinion Evidence?
Inference that can be drawn from observed and communicable facts or data (Lithgow
City Council v Jackson) which has been reasoned from some type of factual basis
Opinion conjecture
Evidence of a witness opinion that is tendered to prove a fact that was expressed in
the opinion.
Generally, the greater the inference that has to be drawn, the more likely it is for that
evidence to be an opinion rather than a fact
o Pen example: from holding a pen, it can be inferred that the person can write.
This is an opinion. Other options include being a pen holder or that the person
is about to write
13.2 General Rule: s76 Opinion Rule
General rule: evidence of an opinion is not admissible
Evidence Act 1995 (NSW)
76 The opinion rule
(1) Evidence of an opinion is not admissible to prove the existence of a fact about the
existence of which the opinion was expressed.
(2) Subsection (1) does not apply to evidence of an opinion contained in a certificate or
other document given or made under regulations made under an Act other than this Act to
the extent to which the regulations provide that the certificate or other document has
evidentiary effect.
Note. Specific exceptions to the opinion rule are as follows:
summaries of voluminous or complex documents (section 50 (3))
evidence relevant otherwise than as opinion evidence (section 77)
lay opinion (section 78)
Aboriginal and Torres Strait Islander traditional laws and customs (section 78A)
expert opinion (section 79)
admissions (section 81)
exceptions to the rule excluding evidence of judgments and convictions (section 92 (3))
character of and expert opinion about accused persons (sections 110 and 111).
Other provisions of this Act, or of other laws, may operate as further exceptions.
Examples:
1
P sues D, her doctor, for the negligent performance of a surgical operation. Unless an exception to the
opinion rule applies, Ps neighbour, W, who had the same operation, cannot give evidence of his opinion that
D had not performed the operation as well as his own.
2
P considers that electrical work that D, an electrician, has done for her is unsatisfactory. Unless an
exception to the opinion rule applies, P cannot give evidence of her opinion that D does not have the
necessary skills to do electrical work.

13.3 Hearsay Evidence of Opinion

Possible for an opinion to be expressed and that opinion be related as hearsay.
o eg. The Specialist told me that the surgery that I require doesnt have a very
good success rate.
*Note: hearsay evidence of an opinion which falls within an exception to the Hearsay
rule is still governed by ss76-80.

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o s76 is not confined to evidence of an opinion given by a witness in court; it

also applies to any evidence of an opinion, including out-of-court hearsay
representations of an opinion.
Exam: Treat it as hearsay first. If it gets in exclusions (excluded). If not then treat it
as opinion

13.4 Exception: s78 Lay Opinion

Evidence Act 1995
78 Exception: lay opinions
The opinion rule does not apply to evidence of an opinion expressed by a person if:
(a) the opinion is based on what the person saw, heard or otherwise perceived about a
matter or event, and
(b) evidence of the opinion is necessary to obtain an adequate account or understanding of
the persons perception of the matter or event.
Generally, Lay Witnesses can give evidence about: someones age, health, emotional
state, estimates of speed and distance, condition of things eg. old, new, damaged,
worn etc.
s78 requires a rational basis for the opinion before it is admissible. i.e. it must be
relevant (R v Panetta)
o Facts: oncoming car at night, based on experience, this person was travelling
at 100k/h
o Held: no rational basis for this opinion. Person did not have training in this
area
Lithgow City Council v Jackson [2011] HCA 36
FACTS: J fell and injured himself. Ambulance officers recorded: Fall from 1.5
metres onto concrete
HELD:
o Ambulance record not able to be admitted under Hearsay exceptions or
Opinion exceptions meaning that causation could not be established
o Record was opinion and hearsay because it is a previous representation being
tendered to prove the fact that J had fallen from the wall resulting in his injury
o s69 Business Record Hearsay exception would not apply because neither the
bystander or the ambulance officer had personal knowledge of the fall
o For the asserted fact (fall from 1.5m) to be viewed as an opinion, there needed
to be some personal knowledge in order to be able to draw an inference
No adequate evidence as to what facts, if any, this opinion was based
on
In the ambulance report the relevant words were preceded by a ?
leaving it unclear whether they express a conclusion or an unresolved
question
statement opinion
s78 exclusion not applicable as ambulance wasnt present when the
injuries were caused

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13.5 Opinion Evidence & Identification

When youre making an identification, you are saying I thinking this person is x for
these reasons. Thus it is an opinion
Lay Opinion evidence can be problematic in relation to identification evidence:
o Where the fact / opinion continuum is more pronounced
o When making an identification of a person, there are several factors at play
such as:
How long has the witness known the person they are identifying?
What is the relationship between the witness and the person they
identify?
How long did the witness have the opportunity to observe the person
they are identifying?
Does the identification have a spontaneous quality?
If the lay opinion about identification is no better than the jurys assessment, it cannot
rationally affect a fact in issue should not be admissible (Smith v The Queen)
13.6 Exception: s79 Specialised Knowledge (Expert Evidence)
Evidence Act 1995 (NSW)
79 Exception: opinions based on specialised knowledge
(1) If a person has specialised knowledge based on the persons training, study or
experience, the opinion rule does not apply to evidence of an opinion of that person that is
wholly or substantially based on that knowledge.
(2) To avoid doubt, and without limiting subsection (1):
(a) a reference in that subsection to specialised knowledge includes a reference to
specialised knowledge of child development and child behaviour (including specialised
knowledge of the impact of sexual abuse on children and their development and behaviour
during and following the abuse), and
(b) a reference in that subsection to an opinion of a person includes, if the person has
specialised knowledge of the kind referred to in paragraph (a), a reference to an opinion
relating to either or both of the following:
(i) the development and behaviour of children generally,
(ii) the development and behaviour of children who have been victims of sexual offences,
or offences similar to sexual offences.
Exception to the Opinion Rule for witnesses who possess some form of specialised
knowledge will assist the trier of fact to understand and contextualise the evidence
more appropriately.
Elements of s79(1):
o Must be some form of specialised knowledge held by the Expert Witness.
Just because youre an expert in one area doesnt mean youre an
expert in another area
o The specialised knowledge must be based on the Experts training, study
or experience.
It does not say tertiary qualification i.e. you dont need to have a PHD
o The opinion must be wholly or substantially based on that specialised
knowledge.

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Yes someone can have specialised knowledge, this knowledge may be

due to training but if they give an opinion on something outside of that
specialised knowledge, the final limb will not be satisfied
Raises question over what is meant by the term specialised knowledge no
definition of term in EA.
o Turn to CL
If s79 is not satisfied, the person cannot give the evidence. It is subject to
opinion/conjecture therefore subject to exclusion rule

What Does Specialised Knowledge Mean?

Knowledge which has gained a general acceptance within the relevant professional
community (Frye test)
Knowledge which is sufficiently organised / recognised to be accepted as reliable
(Bonython test)
Knowledge which is reliable by virtue of it being testable, subjected to peer review
and generally accepted in scientific community (Daubert indicia).
o Trend in EA jurisdictions is towards a reliability focused approach through the
use of the Daubert indicia reasoning
R v Tang: approved US case of Daubert v Merrell Sow Pharmaceuticals which held
that knowledge applies to any body of known facts or to any body of ideas inferred
from such facts or accepted as truths on good grounds
The gaining of specialised knowledge
Specialised knowledge is not limited to purely academic knowledge
Person can also become an expert on a particular thing on the basis of their practical
experience
o Allstate Life Insurance v ANZ (1996): knowledge of investor behaviour and
financial markets can be acquired through employment. Here a fund manager
was allowed to give expert evidence about investment behaviour but a
securities lawyer was not.
o R v Yildiz (1983) 11 A Crim R 115: knowledge of the attitudes of the Turkish
community to homosexuality was considered to be specialised knowledge.
The evidence was given by a heterosexual Turkish interpreter who said that
the Turkish community regards homosexual people with extreme disfavour.
The court held that it was not necessary for the interpreter to have actual
experience of homosexual people in the Turkish community; it was enough
that he knew about Turkish attitudes, through his Turkish birth, nationality,
and living his life amongst Turkish people.
Ad hoc experience may also satisfy s79 requirements. A person may become an
expert in a one-off instance for some special reason.
o R v Leung and Wong (1999) 47 NSWLR 405: interpreter listened to
surveillance tapes many, many times. He listened to them so often, and so
closely, that he was able to identify features that to an ordinary listener, would
be imperceptible. It was not only that he could understand the languages
being spoken on the tapes. But he could recognise that some of the voices
were of the same people, based on his comparison of their voice modulation,
accent, speed of speaking, etc. He was XXed on his methods, but it was held
that he could properly testify as an expert in the case.

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Opinion wholly or substantially based on knowledge

Dasreef Pty Ltd v Hawchar: needs to be sufficient connection between the opinion
and relevant specialised knowledge before s79(1) can be satisfied.
o Cant be a glancing reference
o Opinion has to be based on expertise
Also requires Expert to be able to prove the facts and assumptions upon which
opinion is based
o When they express an opinion, the expert must prove that the facts theyve
used to arrive at the opinion are true. If not, s79 wont apply
o Makita (Australia) Pty Ltd v Sprowles: prime duty of experts in giving opinion
evidence is to furnish the trier of fact with criteria enabling evaluation of the
validity of the expert's conclusion.
o Schedule 7 of UCPR
Problems with Expert Evidence
Can be used as a way of legitimising or bolstering poor police work and / or poor
advocacy. This can lead to miscarriages of justice e.g. Chamberlains case
R v Wood [2012] NSWCCA 21
FACTS: W threw his gf off the cliff. Expert gave evidence that a strong man could
throw a 61kg woman at 4.8m/s thrown like a spear. W convicted. After trial, expert
published a book revealing that he became involved in the investigation because he
was certain W was guilty and that he saw his task has eliminating the defence
hypothesis that the gf had committed suicide

HELD:
o W acquitted
o Expert "conducted a series of not particularly sophisticated experiments".
o Also raised issues relating the difficulties for jurors in understanding and
distinguishing between conflicting as well as the validity and reliability of
Expert Evidence.
R v Morgan [2011] NSWCCA 257
FACTS: robbery at hotel, M wore balaclava, captured of CCTV. M robbed PJs 30min
later. Considerable circumstantial evidence linked M to the robberies (DNA, key to
red Audi). Eye witness evidence as to height was conflicting. Expert said there was a
high level of anatomical similarity between the Offender and the Suspect / Accused.
No anthropometric measurement or statistical analysis was undertaken by expert.
Other Experts gave evidence that experts evidence was lacking in precise
methodology or scientific protocol.
HELD:
o Evidence given by expert should not have been admitted.
o There was no scientific evaluation of its validity, reliability and error rates.
Essentially, the expert expressed an opinion but there was no factual
explanation to support the opinion.

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13.7 Discretionary Exclusion of Opinion Evidence

Even if opinion evidence gets through the thresholds provided in s78 and s79 it may
still be excluded or limited under one of the Discretionary Rules in Part 3.11 EA.
These rules operate to capture evidence which is considered to be unfair or an
inefficient use of the Courts time.
Discretionary Rules applicable to opinion evidence:
o s135 which is a general discretion to exclude evidence.
o s136 which allows the Court to limit the way evidence may be used
o s137 which requires the Court to exclude prejudicial evidence in a criminal
proceeding
Opinion evidence can be excluded for many reasons:
o Lack of objective standard against which to measure the opinion (R v
Gilfoyle; Makita v Sprowles)
o Danger of jury deferring to the expert (Makita v Sprowles)
o Inability of jury to comprehend the expert evidence (R v Lisoff)
o Time and cost of having the expert testify (R v Smith)

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14 Tendency and Coincidence

14.1 Inferential Reasoning
Where someone is asked to draw an inference based on certain facts or events. eg.
Opinion evidence is where the Witness (Lay or Expert) draws an inference based on
their knowledge or observations.
o Witness has seen this/knows this due to expertise etc. We are then asking them
to infer something about that evidence
14.2 General Principles of Tendency & Coincidence
Tendency
May be relevant to show that a person has or had a tendency to act or think in a
particular way, and because of that tendency, they have acted or thought in that same
way in the matter that is in issue.
Using evidence about a particular person previous behaviour to infer the probability
that a pattern of behaviour will follow.
Persons previous behaviour Behaviour in question
o Downfall: doesnt mean they necessarily acted that way
Coincidence
Evidence that puts two or more similar incidents beside one another, for the purpose
of showing that it is unlikely to be a coincidence that these events are unrelated
o From the 2 events, 1 can be the one were dealing with at trial
Uses evidence about a particular pattern of behaviour / series of events, to infer the
probability that a particular person is behind the event.
Coincidence reasoning looks at two or more events that have already happened, and
tries to see whether they are so similar that the only explanation is that they are related
events (really looking for who is behind the pattern of events).
o Patterns dont need to be identical, there must be some degree of uniqueness
e.g. not enough that both events are robberies
Uses the improbability of two or more events occurring coincidentally to prove that:
o A person performed a particular act; or
o A person had a particular state of mind.
The use of coincidence evidence relies on a process of inferential reasoning, in
which the jury:
o Infers from evidence of similarities between two or more events, and the
circumstances in which the events occurred, that is improbable that the events
occurred coincidentally; and
o Infers from the improbability of such a coincidence the existence of a relevant
fact in issue.
Because this is > than a coincidence we can say that were convinced
that this person can committed the other offences as well
In much the same way as the Hearsay Rule and the Opinion Rule, the exclusionary
rules developed to deal with this tendency and coincidence reasoning are purpose
based
o What is the use that will be made of this evidence if it is admitted?

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14.3 s97 Tendency Rule

Evidence Act 1995
97 The tendency rule
(1) Evidence of the character, reputation or conduct of a person, or a tendency that a
person has or had, is not admissible to prove that a person has or had a tendency (whether
because of the persons character or otherwise) to act in a particular way, or to have a
particular state of mind unless:
(a) the party seeking to adduce the evidence gave reasonable notice in writing to each
other party of the partys intention to adduce the evidence, and
(b) the court thinks that the evidence will, either by itself or having regard to other
evidence adduced or to be adduced by the party seeking to adduce the evidence, have
significant probative value.
(2) Subsection (1) (a) does not apply if:
(a) the evidence is adduced in accordance with any directions made by the court under
section 100, or
(b) the evidence is adduced to explain or contradict tendency evidence adduced by another
party.
Note. The tendency rule is subject to specific exceptions concerning character of and expert opinion about
accused persons (sections 110 and 111). Other provisions of this Act, or of other laws, may operate as further
exceptions.

s97 prevents the use of evidence that shows that an individual has a tendency to act or
think in a certain way unless:
o Reasonable notice of the intention to lead such evidence is given (s97(1)(a));
and
Written notice
o The court considers that the evidence has, either in its own right or in
conjunction with other evidence, significant probative value (s97(1)(b)).

Significant Probative Value

Evidence Act 1995
Part 1 Definitions
probative value of evidence means the extent to which the evidence could rationally affect
the assessment of the probability of the existence of a fact in issue.
No guidance in EA regarding significant but has been held to be:
o not substantial (ALRC 26)
o something more than mere relevance but something less than a substantial
degree of relevance (R v Lockyer)
o evidence that is important or is of consequence (R v Lock)
Tendency Purpose
Not all evidence of previous conduct has a tendency purpose. (It may be relevant to
someones state of mind, or have a hearsay purpose, etc). If the evidence is not
adduced to prove the existence of some tendency to act or think in a particular way it
is not caught by s97.
o However, if the evidence could have probative value in multiple ways
including the tendency use then s97 must be complied with.
ES v The Queen (No1):

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FACTS:
Appeal against convictions for sexual offences, ES argued that
TJerred in admitting evidence of uncharged acts on the basis
the evidence had been led as tendency evidence without
satisfying ss97 and 101 EA.
HELD:
Evidence had considerable probative force, particularly because
it was evidence that could be considered as corroborating the
complainant; but it would have that force only as motive or
tendency evidence
As tendency evidence, there was a need to comply with s 97;
failure to do so rendered the evidence unfairly prejudicial
The admission over objection of this evidence was a
miscarriage of justice
o If s97 requirements not satisfied, the Court must warn Jury not to use the
evidence in a tendency way.
Evidence for Other Purposes
Unlike other evidence for another purpose provisions such as s60 (Hearsay), s95
states that evidence admitted for another purpose cannot be used for a tendency and
coincidence purpose unless is also satisfies the Tendency and Coincidence Rules
o S95: cannot get evidence in for another purpose, unless you satisfy s97 first
Evidence can be admitted for various reasons on a non-propensity basis within s 95:
eg to rebut good character (R v OGD (No 2))
o In rebutting good character, prosecution might raise evidence in relation to the
accuseds previous behaviour. Might be tendency but might not if were not
using it for tendency. Were using it for to show that theyre not of good
character
o R v OGD (No 2)): O on trial for sexually assaulting nephew. Another nephew
testified that when he was 10, O said to him that it was all right to do these
things. Tendered as evidence of Os admission (previous representation that
was adverse to his interests inculpating him in the criminal conduct). O rasied
good character, prosecution cross-examined
None of the evidence had been tendered for a tendency purpose
Evidence of the Nephew had been tendered for an admission purpose
and the evidence of the 2 boys had been tendered to rebut the evidence
of good character
Trial judge had clearly directed the jury that this evidence could not be
used to prove that O had a tendency to commit sexual assaults nor that,
because of that tendency, he was guilty of the sexual assault of the
complainant.
Does this mean the evidence 1. Isnt tendency evidence; and 2. cant be
used for another purpose?
Generally where evidence is admitted under s 95 it will be necessary to give a
warning against tendency reasoning where there is a real possibility that the jury
might use it in that way (Toalepai v R; R v Jiang)

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14.4 Relationship Evidence

Where the evidence can be adduced to show that an accused and a complainant had a
relationship, and the nature of that relationship. This type of evidence is not tendency
evidence.
o Relationship could be acrimonious or violent for example possible to use
this evidence in order to understand something about a relationship between
two people. It is not permissible to use this evidence to show that, just because
they had that certain kind of relationship, it proves the fact in issue (eg. she
murdered husband).
R v Lock
FACTS:
o L on train for murdering ex raised self-defence and called lots of evidence
showing x was violent
o Prosecution wanted to call evidence about past injuries to ex-partner, to show
that they had been caused by L and to confirm that L had been violent to ex
him
HELD:
o Prosecution could not use evidence that L had been violent to ex in the past, to
show that she murdered him ie. evidence could not be used for the tendency
reasoning process, (that just because she assaulted him in does not mean that
the evidence could be used to prove she had murdered him) (R v OGD (No 2))
14.5 s98 Coincidence Rule
Evidence Act 1995
98 The coincidence rule
(1) Evidence that 2 or more events occurred is not admissible to prove that a person did a
particular act or had a particular state of mind on the basis that, having regard to any
similarities in the events or the circumstances in which they occurred, or any similarities in
both the events and the circumstances in which they occurred, it is improbable that the
events occurred coincidentally unless:
(a) the party seeking to adduce the evidence gave reasonable notice in writing to each
other party of the partys intention to adduce the evidence, and
(b) the court thinks that the evidence will, either by itself or having regard to other
evidence adduced or to be adduced by the party seeking to adduce the evidence, have
significant probative value.
Note. One of the events referred to in subsection (1) may be an event the occurrence of which is a fact in
issue in the proceeding.

(2) Subsection (1) (a) does not apply if:

(a) the evidence is adduced in accordance with any directions made by the court under
section 100, or
(b) the evidence is adduced to explain or contradict coincidence evidence adduced by
another party.
Note. Other provisions of this Act, or of other laws, may operate as exceptions to the coincidence rule.

s98 excludes evidence which is adduced to show that the improbability of the
similarity of 2 or more events occurring is more than coincidental. Unless following
requirements are met:
o s98(1)(a): notice requirement; and

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o s98(1)(b): the court being satisfied as to the significant probative value of the
evidence.
Purposes caught by s98 would include:
o Reliance on contended similarity of previous event / circumstances to the
event /circumstance in question.
o Proving that a person did a particular act (or had certain state of mind).
o Reasoning that it is improbable that the events occurred coincidently.
Process of coincidence reasoning from which that inference would be drawn is
(Simpson J in R v Gale; R v Duckworth):
o two or more events occurred; and
o there were similarities in those events; or there were similarities in the
circumstances in which those events occurred; or there were similarities in
both the events and the circumstances in which they occurred; and
o having regard to those similarities, it is improbable that the two events
occurred coincidentally
o therefore the person in question did a particular act or had a particular state of
mind.

Steps to Assessing s98 Admissibility

1. Identify the particular act or state mind of the person sought to be proved by the
evidence.
2. Identify the 2 or more events the occurrence of which is used to prove the person did
a particular act or had a particular state of mind.
3. Identify the similarities in the events or circumstances for the purpose of ascertaining
the improbability of the coincidence.
4. Determine whether reasonable notice has been given.
5. Evaluative whether the evidence has significant probative value (SPV).
a. S101: prosecution has to demonstrate that the probative value of the material
(whether tendency or coincidence) needs to outweigh any prejudicial effect it
may have
6. If there is SPV determine whether the probative value substantially outweighs any
prejudicial effect
s101 Further Requirements on Prosecution
Evidence Act 1995
101 Further restrictions on tendency evidence and coincidence evidence adduced by
prosecution
(1) This section only applies in a criminal proceeding and so applies in addition to sections
97 and 98.
(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that
is adduced by the prosecution cannot be used against the defendant unless the probative
value of the evidence substantially outweighs any prejudicial effect it may have on the
defendant.
(3) This section does not apply to tendency evidence that the prosecution adduces to
explain or contradict tendency evidence adduced by the defendant.
(4) This section does not apply to coincidence evidence that the prosecution adduces to
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explain or contradict coincidence evidence adduced by the defendant.

s101 (2) Probative Value v Prejudicial Effect
Prejudice
Prejudice: show there is a danger that the tribunal of fact will use the evidence upon a
basis logically unconnected with the issues in the case (R v Lockyer)
Prejudicial effect is concerned is the possibility that the jury will act on the evidence
otherwise than by way of its rational effect on the probability of a fact in issue, - eg.
by giving effect to some irrational, emotional or illogical response or giving the
evidence more weight than it truly deserves (R v Suteski)
o Deals with the possibility that jury may treat the material irrationally. If this is
so s101 will not be satisfied
If the evidence passes the s 101 test, it will be a fortiori (no other test needs to be
fulfilled) not be excluded under s 137.
Balancing probative value against prejudicial effect
CL rule: probative test to be applied in such cases is that there is no rational view
consistent with innocence (Pfennig v R)
o *Note: strict CL requirement no longer applies post EA (R v Joiner; R v Ellis)
EA
o S101(2) calls for a balancing exercise which can only be conducted
on the facts of each case. It requires the Court to make a judgment, rather than
to exercise a discretion (R v Ellis)
o R v Joiner:
FACTS:
J on trial for murder of wife. He said it was an accident (argument, she
hit her head and died). Crown wanted to call evidence from previous
partners in relation to background of relationship and tendency of
violence. D argued that yeah Ive had arguments with them but with
this one someone died and you cant use that against me.
HELD:
The evidence did have significant probative value. Evidence of
inability to control anger, and a tendency to respond to minor
irritations with violence against women with whom the appellant was
having a relationship, was powerful evidence to refute the version of
events given by the appellant, and to support an inference that the
injuries suffered by the deceased were caused by a violent assault
14.6 Concocted or Contaminated Evidence
The real risk of concoction or contamination of tendency or coincidence evidence is
relevant to the evaluative assessment in s 101(2).
A reasonable possibility that the tendency or coincidence evidence is concocted or
contaminated will deprive the evidence of its significant probative value, regardless of
its similarity (R v Colby; AE v R; BP v R)
The chance of concoction must be a real one as distinct from a speculative or
conjectural one (R v Colby; BP v R). The onus is on the Crown to negate the real
chance of concoction (BP v R).

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Onus rests with D (evidentiary burden). Then burden falls back on crown to negate
real chance
BP v R [2010] NSWCCA 303: D charged with 11 counts of sexual assault upon
different family members. Judge said he will hear all complainants together
o Features of Ds conduct described by each complainant were sufficiently
similar and sufficiently unusual for the evidence of each of them to have
significant probative value in showing the specified tendencies
o s97 is concerned with evidence that a person has a tendency to act in a
particular way or have a particular state of mind; and the probative value of
the evidence will depend both on its probative value in establishing the
tendency and on the probative value of the tendency (if established) in relation
to an issue in the case
o To be admissible as tendency evidence, the evidence must have significant
probative value. It must be capable of rationally affecting the probability of
the existence of a fact in issue to a significant extent, meaning (at least) an
extent greater than required for mere relevance

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15 Character Evidence
15.1 Overview of Character Evidence
Relates to a persons personal qualities, reputation, social standing of the D
o S109: ONLY in relation to the character of defendant i.e. ONLY in criminal
matter
General principle: D should not be judged on his character (fairness principle)
EA: rules about character evidence apply only in criminal proceedings, and only
to the character of the D(s109)
o D can adduce evidence of his good character to help support their case.
o Risk attached to doing this i.e. need to be in a passion to say that yes you can
raise good character but there may be downsides
Character evidence is relevant because it could rationally affect (directly or indirectly)
the assessment of the probability'' that the D committed the offence or offences
charged (Gaudron J -TKWJ v R)
o E.g. relevant to show:
that it is unlikely for a person of good character would commit the
offence; or
that where the D has given evidence, that they should be assessed as
being a creditable witness. (Eastman v The Queen)
Problem: studies show that a persons good character is a not a reliable way of
predicting whether a person has committed a crime.
o Perhaps tendency evidence ought to be preferred over character evidence.
Unfortunately, EA has not followed this approach.
Danger of Trier of Fact wrongly estimating probative value of character evidence.
Trier of Fact may also think that the good character of the Defendant should be used
to balance against the offence committed
15.2 s110 Evidence About Character of Defendant
Evidence Act 1995
110 Evidence about character of accused persons
(1) The hearsay rule, the opinion rule, the tendency rule and the credibility rule do not
apply to evidence adduced by a defendant to prove (directly or by implication) that the
defendant is, either generally or in a particular respect, a person of good character.
(2) If evidence adduced to prove (directly or by implication) that a defendant is generally a
person of good character has been admitted, the hearsay rule, the opinion rule, the tendency
rule and the credibility rule do not apply to evidence adduced to prove (directly or by
implication) that the defendant is not generally a person of good character.
(3) If evidence adduced to prove (directly or by implication) that a defendant is a person of
good character in a particular respect has been admitted, the hearsay rule, the opinion rule,
the tendency rule and the credibility rule do not apply to evidence adduced to prove
(directly or by implication) that the defendant is not a person of good character in that
respect.

s110(1): where the D adduces evidence which proves (directly or indirectly) that he is
a person of good character, the Hearsay Rule, Opinion Rule, Tendency Rule and

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Credibility Rule do not apply. (ie the evidence will not be excluded by operation
of these rules).
o Therefore no s78 and 79
o The evidence of good character can be general or relate to a specific aspect of
the Ds reputation. For example;
I am a peaceful person who hates all forms of violence.
I have never physically attacked someone, without provocation.
I have never assaulted my wife with anything but my hands she has
never had to go to the hospital.
Indication that yes I have done something but not talking about
it. But its saying that Ive never hurt her so much that shes had
to go to hospital. Its very specific
If the D makes these statements, this is licence for prosecution to
cross-examine about what theyve said
s110 allows the D to call evidence that would be otherwise considered to be
inadmissible eg.
o D may call a witness to give evidence about the reputation (opinion) without
evidence being excluded under s76 or having to conform to the requirements
under s78 or s79.
s110(2) and s110(3): where the D has lead evidence of good character (general or
specific), the prosecution and / or a co-D may call evidence that the D is not of good
character (generally or specifically)
S112: before the Dcan be cross examined about character evidence lead under s110,
leave of the Court must first be sought (Leave is sought in accordance with s192).
o Make application under s192
Use / exclusion of character evidence is subject to Discretionary Rules in Part 3.11
EA.
o BUT STILL SUBJECT TO DISCRETIONARY RULES
Judge may comment that although someone may be of previous good character, there
is always a first time for committing an offence evidence of previous good character
should not prevail against evidence of guilt.

15.3 R v Zurita [2002] NSWCCA 22

By preventing the D from splitting character, it prevented them from putting before the jury
evidence that the D had no prior convictions for sex crimes against children. If they were
permitted to do so the Crown would have been limited to attacking him only on the issue of
sex crimes against children and not his character generally.
15.4 s112 Leave to Cross Examine about Character of Defendant
s112: D must not be cross-examined about character unless Court grants leave to do
so (Leave s192).
s192(1): Court may give any leave, permission or direction on such terms as it thinks
fit.
s192(2): minimum factors that must be taken into account by the Court when
considering an application for leave:
o extent of possible effects to length of hearing;
o extent to which granting / denying leave maybe unfair to party or witness;
o Importance of evidence;
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o Nature of proceedings;
Murder, important issues need to be address.
o Possibility of adjouning or making alternative orders
Can we get around the grant of leave? Courts dont do it lightly. Can
we get around it by seeking an adjournment (statement of agreed facts)
o Can we get the evidence from somewhere else? Does it go to a fact in issue
Stanoevski v The Queen (2001) 202 CLR 115
Leave to cross-examine on character should not be granted if there is a chance:
o of a miscarriage of justice;
o it would be unfair; or
o it would distract the jury from the real facts in issue.
Cross-examination on character needs to have sufficient probative value in relation to
the facts in issue, in order for leave to be granted.
Look at prejudice, probative value, relevance
15.5 Advance Rulings on Grant of Leave
Question of leading evidence of good character (generally or specifically) can have a
large impact on conduct of Ds case if D elects to lead such evidence may open
himself to forensic disadvantage (usually cross examination of previous criminal
history etc).
o D is putting hand up and saying that if I were to put my character before the
court, would leave be granted or not (I want to get an indication of whether I
run the risk of being cross-examined)
o If D knows leave will be granted to P to cross-examine, D may be reluctant to
put their character in issue
There is a degree of forensic advantage if D knows the likelihood of whether or not
Court will grant leave to the Crown to cross-examine on character. May seek an
advance ruling under s192A. Court may considerate if appropriate.
o TKWJ v The Queen: no requirement for the trial judge to give an advance
ruling as to whether or not leave to cross-examination on character would be
granted.

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16 Discretionary/Mandatory Rules
16.1 Section 135 Discretionary Rule
Court may exclude the evidence because its probative value is substantially out
weighed by the danger that the evidence might:
o be unfairly prejudicial to a party;
o be misleading or confusing; or
o cause or result in an undue waste of time
Operates as a general discretion to exclude evidence in both Criminal and Civil
matters
Heavy onus on the party seeking to have the evidence excluded to show that probative
valued is substantially outweighed, the balancing act under s135 is weighted in favour
of admission of the evidence. (cf s137)
Unfair prejudice (s135(a))
Prejudice needs to be unfair
Where there is a danger that the fact-finder may use the evidence to make a decision
on an improper, perhaps emotional, basis - on a basis logically unconnected with the
issues in the case.
McHugh J, Papakosmas: talks about unfair prejudice in terms like improper,
emotional, logically unconnected with the issues in the case, arousing a sense of
horror, or provoking an instinct to punish. eg. Exclusion of gruesome crime scene
photographs (particularly when D has denied involvement)
Any crime scene, particulars murders, there will be hundreds of shots in all angles. If
this is shown to a jury, they are horrified and thus want to convict the D.
Exam: if stuck between s135 and s137, think of crime scene example
Misleading, confusing (s135(b))
Evidence may be misleading or confusing to a jury and it is impractical or impossible for a TJ
to give directions that would prevent that confusion. If directions cannot clarify to the jury
how to avoid being misled or confused it is more appropriate to exercise the discretion to
exclude the evidence altogether. Eg. widely used in relation to expert evidence particularly
statistical DNA evidence.
Undue waste of time (s135(c))
Often evidence may have some probative value but if that evidence has been
substantially presented to the jury by other witnesses, or in other ways, it may unduly
waste the courts time to hear further evidence on that subject.
Also widely applied in relation to voluminous financial reports and statistical data.
e.g. Accounting records or background data.
16.2 Section 136 Discretionary Rule
Court may limit the way in which evidence is used if there is a danger that a
particular use might be either unfairly prejudicial or misleading / confusing.
(Criminal and Civil)
Allows the court to give direction you are to use evidence in this manner and not that
manner. i.e. dictates how evidence is to be used

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Where evidence is unfairly prejudicial, misleading or confusing the Court may limit
the use that may be made of that evidence.
In practical terms, s136 operates through giving of judicial directions, where a TJ
directs a jury about how they may or may not use the evidence.
o eg. if a piece of evidence is admissible in more than one way (relevant for
both hearsay and credibility uses) but one of those ways may be misleading,
the TJ may direct the jury that they can use the evidence in one of those ways
and explain why they cannot use it in the other way.
Other common examples include:
o Relationship evidence that may be used to show the nature of a relationship
but not be used as tendency evidence (R v Lock).
o Where s60 has been applied in order to allow otherwise inadmissible evidence
to be adduced, but it is considered that it would be unfair or misleading to use
the evidence for its Hearsay purpose eg. Evidence is not admissible under a
Hearsay Exception and there are reasons to doubt the reliability of the
representation.

16.3 Section 137 Mandatory Rule

Court must refuse to admit the evidence adduced by prosecution if its probative
value is outweighed by the danger of unfair prejudice to the Accused.
Operates to exclude evidence in Criminal matters only.
Only applies to evidence adduced by Prosecution where there is an unfair prejudice
against the Defendnat.
Relationship between s135 and s137 is that the onus on the party seeking exclusion is
much heavier under s135.
o Not difficult for D to raise s137 compared to s135
s137 test is not weighted either in favour exclusion or against it.
o the trial judge should balance probative value and the danger of prejudice
without any preconceptions. (ALRC 26)
R v Linard Shamouil; R v Keenan Mundine
o First look at question of probative value (and whether this is relevant) and
secondly unfair prejudice (and whether this is relevant). Will one outweigh the
other? Also, reliability is a matter for the jury (not relevance)
o *** Reasoning approved in R v XY (5 member NSWCCA)
o R v Shamouil
FACTS:
D on trial for offences related to the non-fatal shooting. Immediately
after the shooting V provided police with details of assailant, and later
identified D in a photo-board identification. A month later, V provided
police with a statement retracting his earlier identification said he
was unable to identify his assailant.
HELD
Assessment of Probative Value: when considering probative value of
evidence, the evidence is to be considered on the assumption that it is
accepted. Matters of reliability will only rarely be relevant
His Honour erred by considering the credibility of the
identification evidence when determining its probative value.

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Unfair Prejudice: any unfair prejudice arising from dangers associated

with identification evidence could be cured with a warning.
No unfair prejudice arose from the possibility that the jury
might speculate about the victims motivation for retracting the
identification
o R v Keenan Mundine
FACTS
Intruder broke into a house occupied by 2, fight broke out, physical
altercation, both identified M. they said the
HELD
Second identification was done because of influence of first one (they
discussed it at home) unfair prejudice
Step 1: relevance. For this identify the fact in issue. Here it was the
identity of the person who intruded into the home unit i.e. was M that
person? The evidence was positive identification of M as that person
and on its face, affected to a very considerable extent the probability
that M was the intruder it had probative value to a high degree
Credibility and reliability not relevant to determination of probative
value

16.4 Section 138 Discretionary Rule

Evidence that has been improperly or illegally obtained is not to be admitted unless
the desirability of admitting the evidence outweighs the undesirability of admitting it.
(Civil and Criminal)
Onus is on the party seeking to tender the evidence to show that it was properly
obtained.
Minimum factors that be taken into account by the Court when considering s138:
o probative value of the evidence
o importance of the evidence
o the nature of the offence
o gravity of contravention
how badly have the police overstepped the mark in getting the
evidence
o whether it was deliberate or reckless
o whether it contravened the ICCPR (inconsistent with human rights)
o whether other proceedings will address contravention
o difficulty of obtaining evidence without contravening Australian law.
Application of s138 can be important in relation to police questioning, arrest and also
confessions.
When considering cases on improper police conduct, Courts need to distinguish
between cases where:
o the police behaviour induces the crime (e.g. solicitation or entrapment);
o the police participate in the crime (e.g. police corruption);
o police behave improperly in investigating or prosecuting the crime.
Courts can sometimes be very tolerant of police behaviour that is deceptive, tricky,
covert or even coercive police behaviour, but in cases such as Em, Carr, Tofilau and
there is a line that is not to be crossed.

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In relation to improperly obtained Admissions, s138 should be explored before

turning to the s90 Unfairness discretion. (Em v The Queen)

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17 Warnings & Directions

17.1 EA Warnings
Warnings may be made under s165 in relation to unreliable evidence:
o Hearsay evidence
o Identification evidence
o Evidence possibly affected by age, ill health etc of Witness
o Evidence given by a Witness who may have been criminally involved
o Evidence from Prison Informer
o Written record of questioning of Defendant (no ERISP)
s165(2): if a party requests, the judge is to:
a) warn the jury that the evidence may be unreliable, and
b) inform the jury of matters that may cause it to be unreliable, and
c) warn the jury of the need for caution in determining whether to accept the
evidence and the weight to be given to it.
s165(3): TJ need not comply with subsection (2) if there are good reasons for not
doing so.
s165(4): no particular form of words that must be used in giving the warning.
Amendments to the Act under s165A and s165B have the effect of giving the TJ
special directions regarding:
o Warnings in relation to childrens evidence before a jury (s165A) eg. Cannot
say that child witnesses are unreliable etc
o Delay in Prosecution - where the D has suffered a significant forensic
disadvantage (s165B). Where a victim has delayed before complaining about a
crime, the TJ should assist the jury on the legal significance of the delay.
In cases where there has been lengthy delays in bringing the complaint, the TJ may
make comments that suggest that delay goes to the complainants credibility. HCA has
held that need not be limited to sexual assault cases.
17.2 CL Warnings / Directions
Longman direction: evidence of the complainant could not be adequately tested
because of the passage of time, it would be unsafe or dangerous to convict on
uncorroborated evidence of the complainant alone.
Murray direction: where the Crown relies on one witness only, the jury, before acting
on the evidence of that witness, must scrutinise the evidence of that witness with great
care

83