‘Context evidence’, relevance and propensity reasoning

The Court of Appeal has delivered several recent judgments which relate to ‘context evidence’ – a form of evidence which does not go to establishing guilt, but which is only relevant to the evaluation of other evidence. Context evidence is to be distinguished from propensity evidence and other evidence which actually goes towards proof of the prosecution case. A particularly difficult consideration with evidence which is said to be adduced for context purposes is its relationship with the rules relating to propensity, and the risk that such evidence may be, in substance, being led for propensity purposes (and, indeed, the risk that even proper context evidence could be used by the fact-finder to engage in impermissible propensity reasoning).

HTN v Western Australia [No 2] [2022] WASCA 51 is one recent case which helpfully summarises some of the important principles enunciated in previous decisions and provides an example of their application. It also shows the importance of the distinction between directly and indirectly relevant evidence when considering these concepts. This appeal related to convictions for two counts of indecent dealing. Due to the complexity of the matter, it is not possible to provide in this brief blog post a full account of the evidence at trial, the appeal in relation to it, and the Court of Appeal’s disposition of the grounds. Those who are interested should read the case in full here. However, the following extracted paragraphs are particularly helpful to understand the matter, the concepts, and their application:

[32] The judge told the jury that [certain evidence given at trial] was relevant background as to the relationship between AC, the appellant and AMC. That was said to be context in which the alleged offences are said to have occurred and that ‘it makes their accounts more intelligible’.

[33] The judge gave further detailed directions about this, as follows:

“For example, it may provide a helpful context, or even necessary for an understanding of the narrative.  It may explain a statement or event or conduct that would otherwise appear curious or unlikely.  It may cut down or reinforce the plausibility of something a witness has said.  It may assist you to use your common sense and experience of life to evaluate the evidence relevant to a particular event involving [AMC] or [TDC].”For example, it may provide a helpful context, or even necessary for an understanding of the narrative.  It may explain a statement or event or conduct that would otherwise appear curious or unlikely.  It may cut down or reinforce the plausibility of something a witness has said.  It may assist you to use your common sense and experience of life to evaluate the evidence relevant to a particular event involving [AMC] or [TDC].

The State also says that the other conduct evidence shows that the offences alleged against [AMC] and [TDC] didn’t happen in a vacuum or out of the blue, and that they were not isolated incidents.  It’s also something you’re able to take into account in determining whether you consider the evidence of [AMC] and [TDC] to be honest, accurate and reliable.  For example, if a complainant gives evidence that certain behaviour happened repeatedly over time, it may be relevant to your assessment of their credibility and their ability to recount details of a specific event.

That is, it may be more difficult to recall a specific incident, if such incidents were happening repeatedly over time.  It may also explain any delay or failure to complain.  Now, whether you use the other conduct evidence in the ways that I’ve just described, and if so, to what extent, are matters entirely for you.  The ways I have described are the only ways in which you can use the other conduct evidence.”

[34] The judge then directed the jury as to how they must not use the other conduct evidence:

Having said how you may use a finding based on the other conduct evidence, I now need to direct you on how you must not use that evidence.

The other conduct evidence cannot, in itself, prove any of the offences set out in the indictment.  You cannot use the other conduct evidence in substitution, in any way, for the direct evidence of the incidents charged in relation to the offences set out on the indictment.  Nor does it fill any gaps or make any other evidence more reliable.  Any finding you make in relation to the other conduct evidence cannot and must not lead automatically to a finding of guilt of any of the offences set out in the indictment.

If you find that [AC] or [the appellant] did the other conduct, you must not reason that they must therefore have committed one or more of the offences set out on the indictment.  It doesn’t follow that, because a person has on a previous occasion committed an act, that they did the same or a similar act on another occasion, or that they are the type of person likely to have committed these kinds of offences.

The ultimate question for you to decide, members of the jury, is whether, having regard to the whole of the evidence, the State has proved beyond reasonable doubt that the accused committed the acts constituting the offences against [AMC] and/or [TDC], as set out on the indictment.  You mustn’t convict either accused of any of the offences set out in the indictment unless the State satisfies you beyond reasonable doubt that they committed the specific acts alleged to comprise that particular offence. 

[48] [The grounds of appeal included:]

Ground 1A:  the other conduct evidence of AMC in relation to count 1 was not probative and was highly prejudicial, giving rise to a miscarriage of justice.

Ground 1B:  there was a real risk that the jury may have adopted propensity reasoning in relation to count 1 derived from, or based on, the other conduct evidence of AMC, thereby occasioning a miscarriage of justice. 

[106] … in our view, to adduce evidence for the purpose of inviting the jury to reason that the fact that the accused had done something similar to the charged act on one or more other occasions made it more likely that the accused had committed the charged offence is to invoke propensity reasoning and to use the evidence as propensity evidence.

Ground 1A: disposition

[107] In our view, the use of the [evidence in order to make NC’s evidence appear less curious, unlikely, or implausible, as suggested by the respondent] involves or invites propensity reasoning and consequently was impermissible. As the respondent ultimately accepted, NC’s evidence as to count 1 was rendered ‘more plausible’ by the other conduct evidence only on the basis that the other conduct evidence established that the appellant and AC had done something similar on a different occasion. In that manner, in substance, the respondent invited a use of the other conduct evidence that involved reasoning to the following effect: the accused had done something similar to the charged act on a different occasion, which made it more likely that the accused committed the charged offence… to so use the other conduct evidence involves propensity reasoning.

[108] This conclusion cannot be avoided, as the respondent sought to do, by attempting to characterise the use of the evidence as (merely) assisting the evaluation of the credibility or reliability of NC’s evidence. As we have said, NC’s evidence as to count 1 was rendered more plausible only on the basis and to the extent that the other conduct evidence established that the appellant and AC had done something similar on a different occasion, and thus, by implication, were more likely to have engaged in the charged conduct. Reasoning founded on that basis is, in substance, a matter of direct relevance. Its character cannot be altered by framing the position in terms of rendering the account given by NC more plausible.

[109] Properly understood, the use invited by the respondent is not of the kind explained by Gleeson CJ [as potentially relevant and admissible] in HML v The Queen… In speaking of the plausibility of what a witness has said, Gleeson CJ was referring to one or more particular features of the account given by a witness of the circumstances attending the offence, not to the plausibility of the offending itself…

[110] In substance, the respondent invites use of the other conduct evidence to reduce the implausibility of the occurrence of the charged offence, not to reduce the implausibility of a factual feature of a witness’ account of the offending conduct and its circumstances. In the present case, the respondent’s submissions did identify implausibility in some particular features of NC’s account, namely that the conduct did not stop when she confronted them and continued to the point where she had to remove the children.[93] Otherwise, it was simply the fact of the commission of the offence which was said to be extraordinary and implausible. The other conduct evidence does not have the specific features of continuing in front of an adult, or any similar feature. Thus, the other conduct evidence does not itself reduce the implausibility arising from the identified feature of NC’s account. Rather, the other conduct evidence seeks to overcome the apparent implausibility of NC’s account by its appeal to propensity reasoning.

[111] The distinction drawn in [108] above – between using evidence to make the charged conduct more likely and using evidence only to place other prosecution evidence in context – is supported by this court’s recent decision in LNN v The State of Western Australia. In that case, the dispositive elements of the court’s reasoning draw, and mark, the distinction between evidence of uncharged sexual offending adduced as propensity evidence and such evidence adduced as context evidence. The court explained that context evidence is evidence that does not go towards establishing guilt, but is only relevant to evaluation of other prosecution evidence. The court contrasted context evidence with other evidence, including propensity evidence, that goes towards proof of the prosecution case. A real risk of propensity reasoning arose in LNN, the court found, because the judge’s direction left it open to the jury to reason that the accused in that case was more likely to have committed the charged offences because of his other uncharged offending.

[113] The position in the present case has some analogy to this court’s recent decision in JEL v The State of Western Australia, in which the court rejected the distinction advanced by the respondent between (i) using evidence to ‘broadly support the complainant’s credibility’ and (ii) inviting propensity reasoning.

[115] For these reasons, in our opinion, the use of the other conduct evidence invited by the respondent was, and is, impermissible because it is, in substance, a propensity use of the evidence.

[116] …the evidence was irrelevant.

[117] … In our opinion, a miscarriage of justice occurred because the judge directed the jury that the other conduct evidence was relevant to their consideration of count 1 in circumstances when, for the reasons we have explained, it was not relevant to that count. That, in itself, occasioned a miscarriage of justice.

[118] In our respectful opinion, the conclusion that the admission of the evidence occasioned a miscarriage of justice is reinforced by consideration of the judge’s direction as to the manner in which the jury was permitted to use the other conduct evidence.

[119] The judge told the jury that this evidence was relevant background as to the relationship between AC, the appellant and AMC. That was said to be context in which the alleged offences are said to have occurred and that ‘it makes their accounts more intelligible’.

[120] The judge gave further detailed directions about this, as follows:

For example, it may provide a helpful context, or even [be] necessary for an understanding of the narrative. It may explain a statement or event or conduct that would otherwise appear curious or unlikely. It may cut down or reinforce the plausibility of something a witness has said. It may assist you to use your common sense and experience of life to evaluate the evidence relevant to a particular event involving [AMC] or [TDC].

The State also says that the other conduct evidence shows that the offences alleged against [AMC] and [TDC] didn’t happen in a vacuum or out of the blue, and that they were not isolated incidents. It’s also something you’re able to take into account in determining whether you consider the evidence of [AMC] and [TDC] to be honest, accurate and reliable. For example, if a complainant gives evidence that certain behaviour happened repeatedly over time, it may be relevant to your assessment of their credibility and their ability to recount details of a specific event.

That is, it may be more difficult to recall a specific incident, if such incidents were happening repeatedly over time. It may also explain any delay or failure to complain. Now, whether you use the other conduct evidence in the ways that I’ve just described, and if so, to what extent, are matters entirely for you. The ways I have described are the only ways in which you can use the other conduct evidence.

[121] It is apparent that, in so directing the jury, the judge identified a number of permissible uses for the evidence. The judge told the jury that the other conduct evidence was background and context that ‘makes [the complainant’s] accounts more intelligible’, saying, by way of example that:
(1) The evidence ‘may provide a helpful context or even [be] necessary for an understanding of the narrative’.
(2) The evidence ‘may explain a statement or event or conduct that would otherwise appear curious or unlikely’.
(3) The evidence ‘may cut down or reinforce the plausibility of something a witness has said’.
(4) The evidence ‘may assist [the jury] to use [their] common sense and experience of life to evaluate the evidence relevant to a particular event involving [either complainant]’.

The judge then identified the following further permissible uses of the other conduct evidence:
(5) To show that the offences alleged against the complainants did not happen in a vacuum or out of the blue and were not isolated incidents.
(6) To take it into account in determining whether the jury was satisfied that the evidence of each complainant was honest, accurate and reliable, giving an example that if a complainant gave evidence that certain behaviour happened repeatedly over time, it may be relevant to the jury’s assessment of the complainant’s credibility and the complainant’s ability to recount details of a specific event.
(7) To explain any delay or failure to complain.

[123] First, it is, in our respectful opinion, undesirable and inappropriate for a judge directing a jury to attempt to deal compendiously with various species of other conduct evidence, some of which were capable of being put to one (or more) use, and others of which were capable of being put to a different use, and which related to different counts and to different accused. As recently emphasised in JEL, specificity and precision is of vital importance in this area.

[124] Secondly, we have already explained why, contrary to the respondent’s submission, the second and third uses identified in [121] above were not available or permissible. The same was true of all of the uses of the other conduct evidence identified in [121]…

[125] Many of the uses identified in [121] simply made no sense…

[127] Thirdly, again with respect, it is difficult to avoid the conclusion that this direction involves the use of a template without the necessary attention being given to which, if any, aspect of the template is apposite to the particular evidence the subject of the direction.

[129] For these reasons, ground 1A is made out.

Ground 1B: disposition

[130] We are comfortably satisfied that, in all the circumstances, there was a real risk that the jury may have reasoned along the lines that the other conduct evidence proved that the two accused had acted on another occasion in a manner similar to count 1 and that this made it more likely that they committed count 1. It is reasonably possible that the jury may have so reasoned in response to the parts of the trial judge’s direction on which the respondent relied in its submissions. More generally and in any event, the jury may have embarked upon such reasoning, based upon their own logic and experience, and bearing in mind the evident similarity between the events described in this part of AMC’s other conduct evidence and the conduct the subject of count 1.

[132] …ground 1B is established.

[133] … In our view, the miscarriage of justice arising from these matters is not [confined to count 1]. For the reasons already given, the judge’s direction gave rise to a real risk that the jury would reason, by reference to AMC’s other conduct evidence, that the appellant and AC having behaved in a similar manner in the incident the subject of the other conduct evidence made it more likely that they acted as alleged in relation to count 1. Given that counts 1 ‑ 3 involved a single incident said to have occurred in the presence of the three children, and given that the State case relied, in respect of all three counts, on the same evidence, it would be to expect the jury to perform unrealistic mental gymnastics for them to reach a different conclusion on the question of whether the conduct occurred as between counts 1 and 2.

[134] For these reasons, we are satisfied that the wrongful admission of the other conduct evidence in the case against the appellant, and the consequential risk of the jury using propensity reasoning, gave rise to a miscarriage of justice in relation to both count 1 and count 2.

Propensity and Relationship Evidence in WA

The Law Reform Commission of Western Australia’s Final Report for ‘Project 112: Admissibility of Propensity and Relationship Evidence in WA’ was tabled in the Western Australian Parliament on 17 August 2022.

The Attorney General asked the Commission to respond to this question: ‘Having regard to section 31A of the Evidence Act 1906 (WA) and the more recently introduced section 97A of the Model Uniform Evidence Bill, what rules should apply to determine the admissibility of propensity and relationship evidence, and other evidence of discreditable conduct, so that all relevant evidence is available to West Australian courts, while also ensuring the right to a fair trial?’

This inquiry took place in the context of Western Australia’s likely adoption of the Uniform Evidence Law in the future. The Uniform Evidence Law has been enacted in the Commonwealth jurisdiction, as well as in Victoria, New South Wales, Tasmania, the Australian Capital Territory, and the Norther Territory. As set out in the Final Report: ‘it is a matter of public knowledge that new evidence legislation is currently being drafted to replace the Evidence Act. The new Act will adopt the UEL but will retain any Western Australian evidentiary provisions that are deemed sound’ (at page 5).

Ultimately, the Commission recommended that: ‘If the Uniform Evidence Law is enacted in Western Australia, it should adopt the Uniform Evidence Law’s approach to tendency and coincidence evidence, rather than inserting a reformulated version of section 31A of the Evidence Act’ (recommendation 1).

The Commission reached this view for a number of reasons. First, it noted the conceptual issue in that s 31A currently operates on the premise that propensity and relationship evidence is inadmissible unless it meets the requirements of s 31A. However, the Uniform Law makes all relevant evidence admissible unless otherwise provided (with the tendency and coincidence provisions then operating to render certain relevant evidence inadmissible). The Commission noted that the benefits of adopting the uniform provisions ultimately justified adopting the uniform approach rather than reformulating s 31A to work in the conceptually distinct Uniform Law context. Those benefits include a more uniform approach to the admission of propensity and relationship evidence throughout Australia; the utility of the body of case law concerning the uniform provisions from those jurisdictions; and that the uniform provisions are ‘easier to understand and apply than the s 31A test’ (at pages 8–10).

The Commission further recommended that:

‘The tendency and coincidence provisions should be available to assist in proving all offences, whether they are of a sexual nature or otherwise’ (recommendation 2);

‘A version of section 97A of the Uniform Evidence Law, which contains rebuttable presumptions concerning the admissibility of tendency evidence in criminal proceedings concerning child sexual offence, should be enacted. That provision should only apply to child sexual offences. It should make it clear that a child sexual offence includes an attempted child sexual offence. The provision should not apply to coincidence evidence’ (recommendation 3);

‘Parties should be required to provide notice of their intention to adduce tendency or coincidence evidence. The nature of the details that should be included in the notice, and the time within which the notice must be given, should be determined by the rules of court’ (recommendation 4); and

‘A version of section 101 of the Uniform Evidence Law that is currently in operation in the ACT, NSW and the NT, should be enacted so that tendency and coincidence evidence about the accused cannot be used against the accused unless the probative value of the evidence outweighs the danger of prejudice to the accused’ (recommendation 5).

You can access the Commission’s Final Report here.

Recognition evidence: is a Domican warning required?

Background:

Judges are required to give a Domican warning to the jury (or to themselves in a trial by judge alone) in many trials where identification evidence is admitted as part of the prosecution case and its reliability is disputed. Domican warnings are given because courts have special knowledge that miscarriages of justice have occurred because of evidence from honest and convincing, but mistaken, witnesses who may incorrectly identify a person or their characteristics as matching the offender.

Domican warnings need to be given in any case involving a positive identification, and may need to be given in cases involving circumstantial resemblance identification evidence (where identification evidence forms a significant part of the proof of guilt).

But what about in cases where the evidence identifying an accused person is properly characterised as ‘recognition evidence’ rather than ‘identification evidence’? That is, evidence from ‘a witness who recognises an accused as the offender in circumstances where the accused was previously known to the witness or had previously been seen by the witness other than at or near the crime scene’ (see Mills v The State of Western Australia [2008] WASCA 219, [73] per Buss JA).

In ISN v The State of Western Australia (No 2) [2021] WASCA 112, the Court of Appeal considered whether recognition evidence required a Domican warning.

ISN v The State of Western Australia (No 2) [2021] WASCA 112:

In the District Court, the appellant was tried by jury and subsequently convicted of four sexual offences against a child under the age of 13 years (called ‘T’). At trial, the defence argued that T was mistaken in thinking that ISN was the person who abused her. T’s evidence identifying ISN was properly classed as recognition evidence because T had known ISN her entire life, in circumstances where ISN was a frequent visitor to her family home and often stayed over on weekends, when ISN and T’s father would drink alcohol.

On appeal, it was argued that the trial judge was obliged to, but did not, ‘give a comprehensive Domican warning’ (at [92]). The Court of Appeal first considered whether Domican warnings ordinarily need to be given in cases of recognition, before turning to the specific question of whether a Domican warning needed to be given in this case.

Do recognition cases ordinarily require a Domican warning? In short, the Court of Appeal concluded that Domican directions are not usually required for recognition evidence, but there are exceptions. As put by the Court of Appeal:

‘A Domican warning… is not mandated for cases involving recognition. This is because, generally speaking, recognition evidence is more reliable than a stranger’s evidence of identification. Nevertheless, ordinarily in cases involving recognition, a jury is reminded that mistakes in recognition, even of close relatives or friends, are sometimes made… However, there will be recognition cases which, having regard to the particular circumstances, involve just as much danger of mistaken identification as cases involving the identification of a stranger. In these cases, a Domican warning is required.’ (at [96]–[97])

Did T’s evidence require a Domican warning? Ultimately the Court of Appeal found that it may have been preferable for the trial judge to have given a more comprehensive and specific warning about the reliability of T’s evidence. However, having regard to the nature of the trial and the directions which were given, the trial judge did not err (at [103]).

The trial judge had given a Longman direction and provided general warnings about the fallibility of human memory and the possibility of mistaken recollection (at [101]). Further, there was no prospect that the jury would not have considered the possibility that T was mistaken in her recognition of ISN as the offender:

‘As the element of identity was the only element in issue in the case, it is inconceivable that the jury would not have had regard to the possibility that T was honestly mistaken in her evidence of recognition. The jury was made aware of the experience of judges and lawyers that mistakes can happen and that innocent people can be convicted as a result of mistaken recognition evidence.’ (at [100])

Accordingly, the ground of appeal was not successful. The appeal was ultimately dismissed (as the other grounds of appeal were also not made out).

The judgment:


The judgment was delivered last year (but I’ve only now gotten around to writing about it as I taught identification and recognition just last week in my Evidence law course). The judgment can be accessed here.

Hearsay and ‘second-hand’ admissions

Background:

The hearsay rule prevents an out of court assertion from being led in court to prove the truth of that assertion. Admissions against interest are a well-established exception to the rule against hearsay. So for example, consider a situation in which an accused person (A) tells their friend (B), out of court, that they (A) stole a car. At A’s trial for stealing the car, witness B may give evidence that A made that admission to B. Pursuant to the admissions exception, B’s evidence can be used for its truth: to prove that A not only made the admission, but also to prove the truth of what A said… that is, that A stole the car.

Admissions might be express (as in the example above) or implied (eg, through A failing to deny an allegation B makes against them in circumstances where A’s denial would be expected if the allegation were untrue).

In TWR v The State of Western Australia [2022] WASCA 24, the Court of Appeal considered the admissibility of evidence from the complainant’s mother about messages sent to her by the appellant’s wife, which were said at trial to constitute implied admissions by the appellant.

TWR v The State of Western Australia [2022] WASCA 24:

In the District Court, the appellant was tried by jury and subsequently convicted of four counts of sexually penetrating a child under the age of 13 years and three counts of indecently dealing with a child under the age of 13 years. At trial, the prosecution adduced evidence of WhatsApp messages exchanged between the complainant’s mother and the appellant’s wife. This evidence was adduced through the complainant’s mother (at [6]). In that message exchange, the complainant’s mother accused the appellant of ‘sexual advances’ which included ‘inappropriate touching and more horrific gestures’ against the complainant. The appellant’s wife indicated in her responses that she had spoken with her husband, and that he promised he would stay away from the complainant and her mother at all times.

As put by the Court of Appeal:

The prosecutor relied on these text messages as constituting implied admissions by the appellant, made through his wife, that he had engaged in sexual conduct with the complainant. The implied admission was said to arise from the absence of a denial of the offending and failure of the appellant to ask for details of the allegations. The trial judge gave the jury detailed directions about the circumstances in which they could use the text messages as an implied admission of guilt.‘ (at [11])

One ground of appeal contended that the trial judge erred by allowing the messages to be used as an implied admission by the appellant. This ground was conceded by the State at the appeal.

In essence, the Court of Appeal noted that the admissions exception to the hearsay rule did not apply to the evidence adduced through the complainant’s mother. Whilst ‘[t]he appellant’s wife could have given evidence of admissions against interest made by the appellant directly to her, under an exception to the rule against hearsay… the complainant’s mother could only give direct evidence about what the appellant’s wife said that the appellant had said.’ (at [12])

The Court of Appeal, citing East Metropolitan Health Service v Popovic [2019] WASCA 18, said that leading the complainant’s mother’s evidence in that way would infringe the hearsay rule because it involved using ‘out of court statements, made by the appellant’s wife about what the appellant had been told, and said in response, as evidence of the truth of what the appellant had been told by, and said to, his wife. The hearsay rule precluded that use of the mother’s evidence of the wife’s out-of-court statements to prove the truth of the wife’s statements. None of the exceptions to the hearsay rule were applicable.’ (at [12])

In short, the prosecution used the complainant’s mother’s evidence of the wife’s statements for a hearsay purpose, and the admissions exception did not apply as the statements were not made by the accused.

The State did not contend that a substantial miscarriage of justice had not occurred. The Court of Appeal ultimately allowed the appeal on this ground, setting aside the appellant’s convictions and ordering a retrial (at [13]).

An additional ground of appeal contended that the trial judge erred by directing the jury that they could consider certain statements the complainant said to her mother in 2017 and 2018 as recent complaints which could bolster the complainant’s credibility (at [16]). The Court of Appeal noted that neither of those statements should be characterised as recent complaints (at [22]), and that if they were to be admitted in the retrial for some other reason, that ‘the jury in the new trial should not be directed that the evidence can be used to bolster the complainant’s credibility or demonstrate consistency of her conduct.’ (at [27])

The judgment:


The judgment was delivered in February 2022 and can be accessed here. My thanks go to Matthew Thompson for bringing this decision to my attention.

Proof of Subsidiary Legislation

Background:

There is a line of authority in Western Australia requiring that subsidiary legislation be proved in evidence. This was most clearly put in Norton v The Queen [2001] WASCA 207, in which Roberts-Smith J (with Wallwork J and Pidgeon AUJ agreeing) said:

…the authorities establish that in the absence of a statutory provision so directing, judicial notice cannot be taken of delegated legislation and such legislation must be formally proved’. ([162])

This was later accepted as a correct representation of the law in Western Australia by four members of the High Court in Ostrowski v Palmer [2004] HCA 30.

In Ireland v Jackson [2021] WASC 362 and Montalbano v Morris [2019] WASC 309 (both traffic conviction appeals from the Magistrates court brought by self-represented appellants), submissions from the respondent (represented by the State Solicitor’s Office) have suggested various legislative bases for notice or proof of subsidiary legislation.

Montalbano v Morris [2019] WASC 309:

In Montalbano, the respondent submitted that the magistrate should be taken to have had judicial notice of the relevant instrument in the Government Gazette because it formed part of the Road Traffic (Administration) Act 2008 (WA). The respondent argued that this was so because s 53(1) of the Evidence Act 1906 (WA) – which provides for judicial notice to be taken of Acts of various Parliaments – extends to the relevant instrument by virtue of s 46 of the Interpretation Act 1984 (WA), which sets out that ‘A reference in a written law to a written law shall be construed so as to include a reference to any subsidiary legislation made under that written law’.

Ultimately, Tottle J found that s 53(1) of the Evidence Act 1906 (WA) does not direct courts to take judicial notice of subsidiary legislation because it:

‘… does not contain a reference to a written law in the sense that that phrase is used in s 46 of the Interpretation Act 1984. It contains a generic reference to “Acts of the Parliament of the United Kingdom and of the Commonwealth, and of any State, and of any Australasian colony, passed before or after the commencement of this Act”. Further, the language used in s 53(1)(b) discloses an intention that is contrary to the expansive construction of “Acts of Parliament” contended for by the respondent. Section 53(1)(b) refers to “Acts of Parliament … passed …”. Acts are “passed” but subsidiary legislation is not. For these reasons s 46(1) of the Interpretation Act 1984 is not engaged by s 53(1)(b) of the Evidence Act 1906 and does not operate to oblige courts to take judicial notice of subsidiary legislation.’ ([42])

Ireland v Jackson [2021] WASC 362:

Montalbano was recently referred to by Allanson J in Ireland. In that case, the respondent submitted that Commonwealth evidence legislation operated to allow notice to be taken of Western Australian subsidiary legislation. The respondent pointed to s 143 of the Evidence Act 1995 (Cth), which relevantly sets out that proof is not required of an Act (including a State Act), nor of a regulation, rule, by-law, or other instrument of a legislative character which is made ‘under such an Act’. The respondent argued that s 143 applies because s 5 of the same Act names s 143 as one of a handful of provisions which apply to ‘all proceedings in an Australian court’, where the term ‘Australian court’ includes all State and Territory courts.

Justice Allanson set out a number of reasons which support an interpretation consistent with the respondent’s submissions, but noted the conclusion reached by Tottle J in Montalbano and previous authorities:

‘The question is whether, when s 143(1)(b) refers to a regulation “made … under such an Act or Ordinance”, it includes a State Act or is confined to an Act of the Australian Parliament or of a Territory. There are arguments for why it should not be so confined. First, the same expression should be given a consistent meaning throughout the section. Section 143(1)(c) refers to a proclamation or order of the Governor of a State made under ‘such an Act or Ordinance’. I am not aware of any circumstance in which the Governor of a State may make a proclamation or order under an Act of the Australian Parliament, or an Act or Ordinance of a Territory.

Second, s 143(1)(d) is also, on its face, of wide operation in referring to “any government or official gazette” rather than a gazette of the Commonwealth or a Territory.

There is, however, a clear line of authority, discussed by Tottle J in Montalbano v Morris, that in Western Australia regulations must be proved in evidence. His Honour was referred to the Commonwealth Evidence Act, but it did not affect his conclusion.’
([68]–[70])

The respondent also put an alternative argument based on s 8 of the Reprints Act 1984 (WA), which provides that a reprint of any written law under the Act shall be judicially noted. Justice Allanson described that submission as follows:

‘The argument is attractively simple. By s 5 of the Interpretation Act 1984 (WA), a written law means all Acts for the time being in force, and all subsidiary legislation for the time being in force. The Road Traffic Code is subsidiary legislation, and has been reprinted. Section 8 of the Reprints Act provides for judicial notice of that reprint.

Given the extent to which a reprint may alter the text of a written law, under s 7 of the Reprints Act, it would be an odd result were the court to take judicial notice of those changes but not the original underlying text.’
([71]–[72])

However, Allanson J noted that it was difficult to determine the relevant ground of appeal because the appellant was unrepresented and the issues relating to the Evidence Act 1995 (Cth) and the Reprints Act 1984 (WA) were thus ‘only argued on one side.’ As the appeal was successful on a separate ground, Justice Allanson ultimately found that it was unnecessary to determine this ground of appeal, noting that ‘It should be left to be fully argued on another occasion.’ ([73])

Comment:


It remains unclear whether s 143 of the Evidence Act 1995 (Cth) or s 8 of the Reprints Act 1984 (WA) – which were not the basis of substantial consideration in the cases forming the ‘clear line of authority’ – could provide an exemption from the requirement to formally prove subsidiary legislation in Western Australia. On the basis of that uncertainty and the ‘clear line of authority’, it would presently appear prudent for a party relying on subsidiary legislation to formally prove it in court.

Waiver of Legal Professional Privilege and Associated Material


Background:

The principle in Mann v Carnell (1999) 201 CLR 1 (‘Mann’) is that legal professional privilege over a communication is impliedly waived where disclosure and use of the communication is inconsistent with maintaining the confidentiality provided by the privilege. However, in AWB Ltd v Cole (No 5) (2006) 155 FCR 30 (‘AWB’) – another leading case on implied waiver – Young J devoted several paragraphs to discussing waiver of ‘associated material’ relating to other waived communications (at [164]–[176]).

In both Zantran Pty Ltd v Crown Resorts Ltd [No 2] [2020] FCA 1024 (‘Zantran’) and Perth Airport Pty Ltd v Qantas Airways Ltd [No 2] [2021] WASC 342 (‘Perth Airport’), it was argued that there was a waiver of associated material as described by Young J in AWB. Together, these decisions are helpful in understanding whether there exists an ‘associated material waiver’, and the relationship between the inconsistency principle and associated material. This case note first discusses O’Callaghan J’s decision on a point of law in Zantran, before considering its application by Le Miere J in Perth Airport.

Zantran Pty Ltd v Crown Resorts Ltd [No 2] [2020] FCA 1024:

In Zantran, O’Callaghan J was required to determine whether there exists a recognised species of waiver called ‘associated material waiver’. Counsel for Zantran argued that passages from Young J’s judgment in AWB stood for the proposition that ‘a voluntary disclosure of privileged documents can result in a waiver of privilege over those documents and associated material’ and that ‘[t]he test applied to determine the scope of any waiver of associated material is whether the material that the party has chosen to release from privilege represents the whole of the material relevant to the same issue or subject-matter’. As put by O’Callaghan J in Zantran, it was submitted that ‘the voluntary provision of one privileged communication gives rise to a waiver of legal professional privilege over all other privileged communications relevant to the same issue or subject matter as the communication voluntarily provided’ (at [31]).

Counsel for Zantran relied on the following passage from AWB (inter alia): ‘Turning to the scope of any imputed waiver, it is well established that a voluntary disclosure of privileged documents can result in a waiver of privilege over those documents and associated material. The test applied to determine the scope of any waiver of associated material is whether the material that the party has chosen to release from privilege represents the whole of the material relevant to the same issue or subject matter’ (at [164] of AWB). Counsel for Crown argued that the only guiding principle for the waiver of legal professional privilege at common law is the inconsistency principle stated in Mann.

Justice O’Callaghan noted that the difference between the two submissions might be ‘more apparent than real’, but that ‘[i]n either case, the critical anterior question is to identify the relevant issue or subject matter’ (at [41]).

His Honour said that when there is an express waiver, ‘an issue arises about whether and to what extent privilege has also been waived with respect to “related” non-disclosed documents’, which might be described as ‘associated material’. However, O’Callaghan J rejected the submission that Young J’s judgment in AWB establishes a separate species of waiver relating to ‘associated material’ which expands the Mann principles (at [42]–[45]).

Perth Airport Pty Ltd v Qantas Airways Ltd [No 2] [2021] WASC 342:

Zantran was recently applied by Le Miere J in Perth Airport. In that case, Qantas sought production for inspection certain documents which record analysis and advice by Houston Kemp (an economic consulting firm) and Dr Mundy. Perth Airport claimed legal professional privilege on the grounds that the documents were communications between the advisers and Perth Airport or their solicitor that were prepared for the dominant purpose of giving or obtaining legal advice (at [9]). Justice Le Miere ultimately found that Perth Airport had, during negotiations with Qantas and other airlines, waived legal professional privilege in respect of certain advice from Houston Kemp, and that production of documents communicating that relevant analysis was necessary for disposing fairly of the proceeding (at [19], [27], [33]–[34]).

In relation to the scope of the order for production, Qantas also sought production of any material necessary to understand that analysis or which underpinned or influenced it, and any documents referred to in particular documents containing the analysis (at [28]). That is, Qantas submitted that the waiver extended to ‘associated material’ as discussed by Young J in AWB.

Justice Le Miere applied O’Callaghan J’s decision in Zantran, stating that ‘[t]he extent of any waiver is to be determined in accordance with the principles expounded in Mann v Carnell’ (at [32]). Accordingly, whilst Le Miere J noted that Perth Airport might be required to produce documents which are necessary to understand certain advice it received, this did not extend beyond the principles in Mann. For example, if Perth Airport had documents evidencing the knowledge and experience of Mr Houston (of Houston Kemp), it would not be inconsistent for Perth Airport to maintain confidentiality over those documents even though that knowledge and experience would no doubt underpin and influence the analysis he provided (at [33]–[35]).

In relation to any documents recording analysis undertaken by Dr Mundy, Le Miere J found that Perth Airport had not waived its privilege as it was not inconsistent for Perth Airport to state the Houston Kemp advice yet maintain confidentiality over the separate analysis by Dr Mundy (at [36]).

Comment:

Together, Zantran and Perth Airport make it clear that the inconsistency principle from Mann is the sole principle relevant to determining whether legal professional privilege has been impliedly waived at common law. Whilst it may, in some instances, be inconsistent to retain confidentiality over certain documents associated with other waived communications, this will not always be so. Accordingly, Young J’s decision in AWB cannot be regarded as establishing a separate ‘associated material waiver’.

Some cases on voluntariness…

There have been a few cases (decided over the past couple of years) in which it has been argued that an admission was not voluntary, and thus should be inadmissible, because the accused person did not understand the police caution given to them. That is, the argument goes that they didn’t understand that they had a right to remain silent, so they were not speaking voluntarily.

The Court of Appeal has made it very clear that failing to understand the caution does not itself give rise to involuntariness. For example (and most recently), in Luo v The Queen [2020] WASCA 184, the Court said that:

‘… in Australian law, an accused person does not need to have understood that he or she has a choice as to whether or not to speak before a statement is taken to be voluntary. A failure by police to give a caution at all or a failure by an accused to understand the caution will be relevant to the exercise of the residual [fairness] discretion. However, such failures do not of themselves render a confessional statement inadmissible by reason of being involuntary.

In the present case it is not suggested that the police officers offered any threat or inducement in order to procure the admissions , or that the appellant’s will was overborne by any external factor. The fact that he did not understand the caution and appreciate that he did not have to answer questions, if established, would be relevant to the exercise of the residual discretion but would not make the admissions involuntary for the purposes of the common law exclusionary rule.’
(at [74]–[75])

In Luo, the appellant spoke Cantonese and said that he spoke no English. He also said that he was an unsophisticated fisherman. For these reasons, at trial, he claimed he did not understand the caution. A similar situation arose in George v State of Western Australia [2020] WASCA 139, in which the appellant was a speaker of a dialect of Tamil. The Court of Appeal there (at [100]–[101] ) made the same point that was later made in Luo.

These arguments in Luo and George might have been prompted by a similar argument which was made the year prior in EYO v State of Western Australia [2019] WASCA 129. In that case, the appellant spoke Djaru as his first language, and also spoke some English. The appellant argued that his admissions were involuntary because he did not understand the caution given to him. Ultimately, in EYO, the Court did not clearly state that a failure to understand would not result in an admission being made involuntary, presumably because the Court agreed with the trial judge that the appellant did in fact understand the caution:

‘Having viewed the VROI, and seen and heard the appellant’s answers to the questions put to him by the police, including those that were interpreted into Djaru, we think that his Honour did not err in finding that the appellant understood that part of the caution which informed him that he was not obliged to answer the questions put to him by the interrogating police officers. This is because, not only did the appellant answer in the affirmative that he understood that he did not have to answer the officers’ questions, but on several occasions asserted that he did not wish to do so.Having viewed the VROI, and seen and heard the appellant’s answers to the questions put to him by the police, including those that were interpreted into Djaru, we think that his Honour did not err in finding that the appellant understood that part of the caution which informed him that he was not obliged to answer the questions put to him by the interrogating police officers. This is because, not only did the appellant answer in the affirmative that he understood that he did not have to answer the officers’ questions, but on several occasions asserted that he did not wish to do so.’ (at [66])

However, in EYO, the Court did find that the record of interview should have been excluded through exercise of the fairness discretion due to law enforcement’s failure to comply with the Anunga guidelines (which are to be complied with when interviewing a suspect who is an Aboriginal or Torres Strait Islander person). As the Court set out:

‘Breaches of the Anunga guidelines may be relevant to an assessment of the voluntariness of confessional evidence given by an Aboriginal person and the exercise of the unfairness discretion.’ (at [54])

The breaches in EYO ultimately justified exercise of the discretion to exclude the record of interview for the reasons set out below:

‘… on various occasions, when asked whether he wished to answer questions by the police, the appellant answered to the effect that he did not wish to answer. The appellant could not have been any clearer when he said, ‘I’m saying nothing’; ‘Yeah, I don’t want to speak’; ‘Yeah. I don’t want to say anything’; ‘On them other thing, like, this lawyer told me to, you know. The lawyer tell me to say no’.

Whenever the appellant responded to the effect that he did not wish to answer any questions, the interrogating police officers ignored those responses. Instead, they continued to interrogate the appellant about the alleged offences, as if the appellant had answered in the affirmative. In our opinion, the police officers, by their conduct, whittled down the effect of the caution by continuing with the interview when the appellant had repeatedly stated his wish to remain silent. In this way, the interrogating officers failed to respect the appellant’s choice to stay silent. Their conduct infringed guideline 8 of the Anunga guidelines which provides that an interview should not proceed if the person being interviewed states he or she does not wish to proceed further.

[The trial judge should have] concluded that the VROI was inadmissible on the basis of the unfairness discretion. In our opinion, it was plainly unfair to admit into evidence the VROI, having regard to the factors above.’
(at [76]–[78])

Some s 79C(2a) cases…

Find below a few short excerpts from (fairly) recent cases which considered issues relevant to s 79C(2a) Evidence Act 1906 (WA):

Zerjavic v Chevron [2020] WASCA 40 (in which a letter was found not to be a business record because it was a one-off document prepared by the business, rather than a document prepared in the ordinary course of that business):

‘The letter was a one-off piece of correspondence sent to the District Court in answer to a subpoena rather than a document prepared or used in the ordinary course of business for the purpose of recording any matter relating to the business. The primary judge was correct to reject the tender of the Sonic Health letter on the basis that it was not a business record.’ (at [146])

Collopy v CBA [2019] WASCA 97 (in which the point was made that s 79C(2a) allows for ‘a statement in a document that has been derived from a business record’ to be admitted, and that this description included screenshots of banking records):

‘… trial counsel objected to the admission of the screenshots on the basis that they were not admissible as business records because they had been prepared for the purposes of the litigation.

The screenshots themselves were not a ‘business record’ for the purposes of s 79C of the Evidence Act. They were, as Ms Lavater’s trial counsel observed, created in about October 2017 for the purposes of the trial. However, the information shown in the screenshots was derived from the Bank’s electronic business records in the manner described by Mr Kent. That is sufficient for the purposes of s 79C(2a)(a), which enables a statement in a document that has been derived from a business record to be admitted.’
(at [4]–[5])

Presilski v Shepherd [2021] WASC 100 (in which screenshots of Google Maps Timeline information fell under the s 79C(2a) business records exception):

‘… the Google Maps Timeline should be considered to have been generated by Google, from the underlying data recorded and stored by Google in its Google Maps system, in the ordinary course of its business of Google Maps, which, in the Google Maps Timeline functionality, tracks and registers the time and location of a user of a mobile telephone on a particular day. The appellant did not prepare the Google Maps Timeline, but rather accessed it…’ (at [143])

The State of Western Australia v Quartermaine [2020] WASC 458

Background:
This decision relates to a trial by judge alone before Hall J. The accused was charged with murder, and prior to the trial, admitted that he had unlawfully killed the victim. However, the defence argued that intent could not be proved beyond reasonable doubt (‘having regard to all the circumstances, including the intoxicated state of the accused’), and that therefore the accused could only be found guilty of a lesser offence ([4]).

During the trial, Hall J was required to determine whether the defence’s expert psychiatric evidence was admissible. This issue arose because the expert opinion was partially based on information which was not supported by sworn evidence. The issue is set out at [145]-[146]:

‘The accused elected not to give evidence. That was his right and no adverse inference can be drawn from that fact. However he did call expert evidence from Dr Victoria Pascu, a forensic psychiatrist.

Dr Pascu interviewed the accused at Hakea Prison and relied on information provided by him for the purpose of forming her conclusions. Some of the information provided by the accused reflected evidence that was otherwise available. However, the accused also provided Dr Pascu with some information, including in regard to his drug and alcohol usage generally and on the night in question, that was either not supported by the evidence or was inconsistent with it. This created an issue as to the extent to which Dr Pascu’s opinions were based upon information that was not supported by sworn evidence. An objection by the prosecution was taken to Dr Pascu’s evidence on this basis.’ (emphasis added)

In essence, the accused’s choice not to give evidence meant that he did not confirm on oath what he had said to Dr Pascu. This meant that some of the foundation of Dr Pascu’s opinion was not supported by any admissible evidence at trial, in that what the accused said to Dr Pascu was hearsay.

During the trial, Hall J decided that the evidence could be led, subject to any findings about weight, because Dr Pascu confirmed that it would be possible for her ‘to exclude the information that had been provided by the accused and to only rely upon the evidence before the court, including the accused’s interview with the police’ ([147]).

Reasons:
Justice Hall provided detailed reasons for his decision in the judgment, concluding that:

‘In this case prior to Dr Pascu being called she was asked whether it would be possible for her to put aside the information that was provided to her by the accused and whether she would still be able to give an opinion as to [the fact in issue]. She advised that she could do this. In these circumstances I concluded that Dr Pascu’s evidence would not be based entirely on inadmissible material and that insofar as she had partly relied upon any information from the accused which had not been confirmed on oath then that would reduce the weight to be accorded to her opinion.’ ([159])

As the opinion did not wholly rely on hearsay, it was still admissible. The extent of reliance on inadmissible hearsay ‘was able to be explored in cross‑examination and is relevant to the weight to be given to her opinion’ ([152]).

Comment:
This decision is of interest for the practical application of the (sometimes unclear) ‘factual foundation’ or ‘factual basis’ rule – even the nature of which is still subject to some disagreement, as some regard it as a formal rule for admissibility and others regard it as more of a practical requirement in that an opinion without an admissible factual basis cannot be of any weight. The common law authorities relating to this rule are contradictory, so Hall J’s discussion of the principle is helpful to understand which authorities are to be preferred.

In this regard, his Honour cites at [158] (inter alia, and apparently with some approval) the following passage from Ipp J’s judgment in Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370:

[E]xpert opinion based entirely on inadmissible evidence is itself inadmissible and there is no discretion to admit it. I form this view as to admit such an opinion would be to admit, indirectly, the inadmissible evidence itself. If an opinion, based solely on evidence that the court by law is required to exclude, is itself admitted, the inadmissible evidence would have some influence over the court’s decision. Such a result would defeat the purpose of the law that excludes the inadmissible evidence. If the primary facts on which the evidence is based are not admissible, the opinion is valueless and irrelevant and, in my opinion, should be excluded... It is only when the primary facts upon which the opinion has been based are established that the opinion should be admitted into evidence.

On the other hand, where the expert opinion is based only partly on inadmissible testimony and that inadmissible testimony can readily be ascertained and discarded, the opinion should be admitted subject to weight.’ (emphasis added)

The judgment:
The judgment was delivered on 11 December 2020 and can be accessed here. See especially paragraphs [145]–[159] for discussion relating to admissibility of the evidence.

GBF v The Queen [2020] HCA 40

Background:
Though this High Court decision concerns an appeal from Queensland, it is relevant to the law in all Australian jurisdictions. The relevant background to this case is summarised in the first two paragraphs of the unanimous judgment by Kiefel CJ, Bell, Keane, Gordon and Edelman JJ:

‘The appellant appeals by grant of special leave from the orders of the Court of Appeal of the Supreme Court of Queensland (Morrison and Philippides JJA and Boddice J) dismissing an appeal against his convictions for six sexual offences. All the offences were alleged to have been committed against the appellant’s half-sister. The prosecution case was wholly dependent upon acceptance of her evidence. The appellant did not give or call evidence. In the course of his charge, Judge Wall QC instructed the jury to:

“bear in mind that [the complainant] gave evidence and there is no evidence, no sworn evidence, by the defendant to the contrary of her account. That may make it easier” …

The appellant challenged his convictions in the Court of Appeal contending that, in effect, the impugned statement was a direction that the absence of evidence from him might make it easier to return verdicts of guilty. The Court of Appeal acknowledged that the impugned statement should not have been made. Nonetheless, the Court of Appeal found there was no real possibility that the jury may have misunderstood earlier, correct directions of law that had been given, and no real possibility that the appellant had been deprived of a real chance of acquittal. Their Honours held that the impugned statement had not occasioned a miscarriage of justice. This holding took into account the fact that neither the prosecutor nor defence counsel had applied for any redirection arising from the making of the impugned statement.


In the High Court, the appellant challenged the Court of Appeal’s decision that the impugned statement did not occasion a miscarriage of justice. The appellant argued that it ‘invited the jury to reason to his guilt from his exercise of the right to silence’ and that the Court of Appeal was ‘bound to allow the appeal unless the prosecution established that no substantial miscarriage of justice had actually occurred’ ([3]).

Ultimately the High Court accepted the appellant’s submissions, allowed the appeal, and ordered a retrial.

Reasons:
The High Court found that the present case could not be distinguished from Azzopardi, in which it was stated:

‘It is to be emphasised that cases in which a judge may comment on the failure of an accused to offer an explanation will be both rare and exceptional … A comment will never be warranted merely because the accused has failed to contradict some aspect of the prosecution case.‘ ([68] of Azzopardi, reproduced at [21] of GBF)

On this basis, the High Court decided that the comment’s ‘effect was to invite the jury to engage in the same false process of reasoning as the impugned passage did in Azzopardi. The Court of Appeal was wrong to hold that this was not an irregularity amounting to a miscarriage of justice’ ([26]).

Comment:
This decision adds to the the body of case law which confirms that Weissensteiner-type comments are appropriate only in rare and exceptional circumstances. It also reinforces protection of an accused person’s right to silence, indicating that any improper interference with that right at trial is likely to be characterised as a miscarriage of justice.

The judgment and further discussion:
The judgment was delivered on 4 November 2020 and can be accessed here.

For further discussion of this case, listen to ABC’s Law Report podcast from 24 November 2020 from 13 minutes and 10 seconds onwards (accessible here).

Nguyen v The Queen [2020] HCA 23; (2020) 94 ALJR 686

In brief:
Although an appeal from the Northern Territory, the High Court’s decision in Nguyen v The Queen impacts evidence law in all Australian jurisdictions.

Sometimes, in a criminal trial, the prosecution will bear a duty to adduce material evidence, regardless of whether it favours the prosecution case or not. This is to be distinguished from the prosecutorial obligation of disclosure. Disclosure is where the prosecution provides all relevant material to the defence, which may or may not be tendered into evidence during the trial. But, in some circumstances, the prosecution might also be obliged to adduce the evidence at trial, such as by calling witnesses relevant to the charge. This can be advantageous to the defence.1 The circumstances under which the prosecution is obliged to adduce evidence in a criminal trial was considered by the High Court in Nguyen v The Queen.

In this appeal the High Court unanimously affirmed the fundamental prosecutorial duty. All of the Justices held that, in the circumstances of the case, the prosecution was obliged to tender an electronic record of interview (EROI) of the police with the appellant at his trial. The Justices reasoned differently as to the circumstances in which the prosecution would be bound to adduce evidence.

Further background:
The appellant was charged on indictment of one count of unlawfully causing serious harm to another and one count of assault aggravated by the use of an offensive weapon.

The procedural history is notable in two respects. First, it commenced as a referral on a question of law. In many jurisdictions, a trial judge has the power to refer a question of law to an appeal court.2 In Western Australia, the procedure is available, but sparingly exercised.

Secondly, this was the appellant’s second trial. The first trial resulted in a hung jury (a type of mistrial where the jury is unable to reach agreement as to whether the accused is guilty or not guilty).

During the appellant’s first trial, the prosecutor played a video record of a ‘mixed interview’ to the jury. The appellant made mixed statements: comprising inculpatory statements (which tended to incriminate him) and exculpatory statements (which tended to introduce doubt as to his guilt). Although hearsay,3 the inculpatory statements were admissible as admissions against interest, and the exculpatory statements were admissible under the ‘mixed statement’ exception to the hearsay rule.

The contest arose as a result of the prosecutor’s decision, during the second trial, not to play the accused’s EROI to the jury. The prosecutor admitted this was a ‘tactical decision’.4 The Full Court of the Supreme Court of the Northern Territory (Kelly, Blokland and Barr JJ) held that the prosecutor was under no duty to tender the EROI.5

Decision of the High Court:
The majority of the High Court (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ) affirmed the prosecutorial obligation in terms of adducing all ‘available, cogent and admissible evidence’:

What was said in [R v Soma] should be understood not just as a caution to prosecutors about being selective but rather as a reminder about the prosecutorial obligation to present all available, cogent and admissible evidence. Cases involving the omission of a vital witness may provide somewhat more stark examples of a failure properly to exercise that discretion than a mixed statement given by an accused in a police interview, but the latter may have just as important an impact on the outcome of the trial and the need for a new one.

at [39]

Their Honours noted that there may be cases where it was justified for the prosecution to not adduce evidence.

There may be circumstances where it would be unfair to an accused to tender a record of interview, for example where the accused has refused to comment. In such a circumstance the omission of that evidence is justified. But where an accused provides both inculpatory and exculpatory statements to investigating police officers, it is to be expected that the prosecutor will tender that evidence in the Crown case, unless there is good reason not to do so, if the prosecutorial duty is to be met.

at [41]

Their Honours accordingly held that the prosecutorial duty required the prosecution to adduce the EROI.

While agreeing with the outcome, Nettle and Edelman JJ both wrote individual concurring judgments, differing as to their reasoning. Justice Nettle expressed concern at the development of a general principle given that the decision to adduce evidence is a highly fact-sensitive and context-driven exercise. His Honour said:

… I am not persuaded, that the Crown’s obligation of fairness ordinarily extends to the presentation to the jury of “all available, cogent and admissible evidence” … [T]here may well be unexceptional cases in which a prosecutor would be perfectly entitled to choose not to tender available, cogent and admissible evidence without risk of unfairness to the accused.

Of course, each case depends on its own facts and circumstances, and, in the end, the question of whether a prosecutor’s decision not to tender some piece of evidence is productive of a substantial miscarriage of justice can only be judged in hindsight on appeal against conviction. But, if for no other reason than that, I am not willing to predicate as a proposition of apparently general application that the Crown’s obligation to put its case fully and fairly includes a prima facie duty to adduce all “cogent” and admissible evidence available to the Crown.

at [49]–[50] (citations omitted)

Justice Edelman demonstrated apparent concern over Nguyen‘s procedural path to the High Court, being an appeal from a referral of a question of law. His Honour considered it was difficult to discern, in advance, whether the failure to adduce the evidence would give rise to a miscarriage of justice.

A so-called “obligation” to tender a video record of interview, like a so-called “obligation” to call a witness, is not a free-standing obligation at all. It is an aspect of the prosecutor’s duty of fairness. The content of the prosecutor’s duty of fairness depends upon all the circumstances at trial. It can never be said with certainty prior to the conclusion of the prosecution case that a prosecutor’s duty of fairness would necessarily require a witness to be called or a video record of interview to be tendered. An initial impression that fairness would require a witness to be called or a video record of interview to be tendered might be affected by later circumstances, perhaps wholly unexpected, which might even make the tender of a video record of interview or calling of a witness unfair. If the second question referred to the Full Court were understood literally as asking, at a point prior to trial, whether there will be a legal obligation for the prosecution to tender the video record of interview during the prosecution case at trial then the answer would be “Impossible to answer”.

at [54]

However, his Honour was able to resolve the question by having regard to the manner in which the case was argued:

if the prosecutor were to maintain his stance throughout the Crown case of refusing to tender the video record of interview then it is likely that his conduct would be a breach of his duty of fairness and would lead to an unfair trial and a miscarriage of justice.

at [55]

Justices Nettle and Edelman agreed with the orders proposed by the majority, and the appeal was unanimously allowed.

The judgment was delivered on 30 June 2020. You can access it here (a summary is also available).

Endnotes:

1. This is because if the evidence is adduced by the prosecution, the defence is then able to advance their case in a way which might not be possible if the defence was required to adduce it during examination-in-chief. For example, if, during the State case, the prosecution calls a witness, the defence is able to cross-examine that witness. This means the defence can ask the witness leading questions, and can challenge the witness’ credit by contradicting them.

2. To give an example, the judge might be unsure as to whether certain evidence is admissible. Generally trial judges are more likely to make their own evidentiary rulings, leaving an appeal against conviction as the only avenue for the correction of error.

3. Hearsay is a statement made outside court which is adduced in a trial in order to prove the truth of its contents. Hearsay is generally not admissible because it is not reliable: the statement having not been made on oath or affirmation, and its maker having not been subjected to cross-examination. There is a fear that hearsay statements may have been concocted, ‘made up’, or embellished. Admissions against interest are an exception to the rule because the law considers that they are unlikely to have been made up (that is, people tend not to make statements against their interest unless the statements are true).

4. These two words might send chills down the spines of experienced prosecutors. It is worth bearing in mind that the High Court has warned that the prosecution’s role is not one of securing convictions at all costs, but of ensuring a fair trial of the accused. Accordingly, the failure of the State to call a witness may, depending on the circumstances, give rise to a miscarriage of justice. A selection of cases discussing this important proposition are: R v Apostilides (1984) 154 CLR 563; Whitehorn v The Queen (1983) 152 CLR 657, 663-4 (Deane J), 674 (Dawson J); Ritchie v Western Australia [2016] WASCA 134; (2016) 260 A Crim R 367, 375 [40], [42] (McLure P); R v Livermore (2006) 67 NSWLR 659; Bugeja & Johnson v R (2010) 30 VR 493. For a very rare example of a case where a witness was called by the trial judge in order to ensure a fair trial, when the prosecution refused to call the witness, see R v Peros [2018] 1 Qd R 1.

5. See R v Nguyen [2019] NTSC 37; (2019) 345 FLR 40.

This post is authored by Matthew Thompson and edited by Aidan Ricciardo.

Ban v The State of Western Australia [2020] WASCA 91

In brief:
This appeal concerns a murder which has received much attention from the media in Western Australia. The background to this case is neatly summarised by Quinlan CJ and Mitchell JA:

‘Sometime between 26 June 2016 and 2 July 2016, Annabelle Chen (the deceased) was murdered in her bedroom in the house in which she resided in Mosman Park (the Mosman Park house).  Her body was found by fishermen in a suitcase in the Swan River on the morning of 2 July 2016.  The deceased was not identified until her daughter, Tiffany Yiting Wan (Ms Wan), reported the deceased as a missing person on 1 September 2016.

The appellant, who was the deceased’s former husband, and Ms Wan were subsequently charged with murdering the deceased.

At trial, both accused gave evidence and ran a ‘cut-throat’ defence.  Each alleged that the other had killed the deceased without his or her involvement.  At the conclusion of the trial, the jury found the appellant guilty of murder and Ms Wan guilty of being an accessory after the fact to murder.’
([1]-[3])

The appellant argued several grounds of appeal, including that the trial judge was obliged to, but did not, give directions which would obviate a perceptible risk that the jury may reason that if it acquitted one accused of unlawfully killing the deceased, it must convict the other accused for doing so. That is, the trial judge failed to adequately direct the jury that it was open to them to find both accused not guilty of the unlawful killing.

Ultimately Quinlan CJ and Mitchell JA (in a joint judgment) found that the ground was not established and dismissed the appeal. In dissent, Mazza JA would have allowed the appeal on this ground.

Reasons:
The majority summarised the appellant’s submission on this ground as follows:

‘The appellant complains that the trial judge essentially left the case to the jury as one of ‘whodunit’. The appellant submits that the irresistible suggestion from his Honour’s directions, when viewed as a whole, was that at least one of the two accused killed the deceased. The appellant says that the trial judge failed to adequately direct the jury that, if they were not satisfied of the guilt of either accused (when looking at the State’s evidence in the individual case against each), then they could find both not guilty of the unlawful killing of the deceased. The appellant submits that this was a failure in the summing-up that was not fair to him.’ ([314])

They continued to say that ‘The concern reflected in this ground of appeal is that the jury might… having concluded that Ms Wan was not guilty of murder, [have] reasoned that the appellant must therefore be found guilty. If there was a real and not remote possibility that the jury might reason in that way, a direction of the kind contemplated by this ground would have been required.’ ([320])

However, the majority found that when considered as a whole, the trial judge’s direction did instruct the jury that they could only convict the appellant of manslaughter or murder if the admissible evidence against him satisfied them, beyond reasonable doubt, that he had in fact unlawfully killed the deceased. Their Honours found that the trial judge did expressly direct the jury that they must acquit the appellant if they were not so satisfied, and that this was emphasised by the question trail document provided to the jury ([321]-[323]). Therefore, a reasonable jury following the directions and the question trail document would not have reasoned that they could not acquit both Ms Wan and Mr Ban ([324]).

In dissent, Mazza JA found that:

‘… [the trial judge did not tell the jury] that it was open to it to deliver verdicts of not guilty in respect of both accused. This may not have been apparent to the jury, particularly when the paramount factual issue for the jury to consider was framed as ‘whodunit?’ or ‘who did it?’. In the context of the present case, where there were only two suspects, at least one of whom unlawfully killed Ms Chen, the framing of the case in this way, to my mind, implied, or at least may reasonably have been understood as implying, that someone was guilty. It brings with it the perceptible risk of the jury reasoning, impermissibly, to guilt by a process of elimination that proceeds in this way: if we are not satisfied beyond reasonable doubt that one accused killed Ms Chen, it follows we must be satisfied beyond reasonable doubt that the other accused killed Ms Chen.’ ([383])

His Honour also noted that the trial judge’s expression of the issue as ‘whodunit’ gave rise to a perceptible risk that ‘the jury may have understood that it could impermissibly reason to guilt by weighing up which of the accused’s versions they preferred’ ([384]). Further, because of the ‘cut-throat’ defence cases and ‘the understandable desire to bring somebody to justice for the unlawful killing of Ms Chen’ there was a perceptible risk that a jury may think it inconsistent to acquit both accused ([385]).

The judgment:
The judgment was delivered on 15 June 2020. You can access it here. See especially paragraphs [294]-[326] and [351]-[389].

TBU v The Queen [2020] WASCA 76

In brief:
The appellant was convicted of importing tobacco products with the intention of defrauding the revenue, contrary to the Customs Act 1901 (Cth). The appellant was jointly tried with a co-accused (Mr Hussain) who was acquitted. The appellant argued several grounds of appeal, including that the trial judge erred by permitting Mr Hussain to give hearsay evidence which was prejudicial to the appellant’s case, and by failing to direct the jury about the limited purpose for which the evidence could be used. Ultimately the Court of Appeal refused leave to appeal on this ground but a majority allowed the appeal on another ground and accordingly ordered the conviction be set aside and a new trial take place.

Further Background & Reasons:
The relevant evidence was Mr Hussain’s response to questions in examination in chief relating to why his ABN was used for the transaction declaration. The co-accused said that ‘In this case, me, Danial and [the appellant] is involved. So Danial is not living in Australia, did not have any business number. [The appellant], he just clearly told Danial that he doesn’t want to involve his self in the – in this case. So he didn’t want his name, he didn’t want his ABN number’. In response to a follow-up question, he continued ‘And at that time I said, “okay. Maybe he don’t want so I can do.” But I don’t mind it because Danial told me it’s only naswar, not tobacco molasses, there’s nothing else.’

The trial judge allowed this evidence to be given after an objection by the appellant’s trial counsel, her Honour noting that she could provide the jury with a warning that they could only use the evidence to go to the co-accused’s knowledge and intent, not for its truth. The trial judge ultimately gave no such warning.

Mitchell JA (with whom Buss P and Mazza JA agreed on this ground) found that none of the appellant’s submissions in relation to the hearsay evidence had any merit.

First, it was not inadmissible hearsay. The out of court assertions were relevant for a purpose other than their truth: ‘Mr Hussain’s evidence as to his understanding tended to negate the inference, which might otherwise be drawn from the prosecution evidence, that he knew that tobacco products were being imported and that he intended to defraud the revenue.  The evidence was admissible for the purpose of establishing Mr Hussain’s understanding of the position when he provided his ABN to Seabridge.  The evidence was therefore relevant as going to Mr Hussain’s state of mind, and its use for that purpose did not infringe the hearsay rule’ ([162]).

Second, given that the trial judge could direct the jury about the permitted use of the evidence if required, ‘there was no basis for her Honour to have excluded the evidence on the ground that its probative value in the case against Mr Hussain was outweighed by its capacity to lead the jury to reason incorrectly to a conclusion as to the appellant’s guilt’ ([164]).

Third, though the trial judge did not ultimately provide the jury with any direction about the permissible use of the evidence, it was not required because of the way in which the evidence emerged and with an appreciation of the whole conduct of the trial ([172]). There was ‘no real risk that the jury would use Mr Hussain’s answer as evidence of what the appellant had said to Danial.  No-one suggested to them that this was the effect of the evidence, and the evidence was not given in those terms’ ([172]).

Comment:
This case provides a good reminder that although the trial judge’s capacity to give directions may factor into decisions about the admission (or non-exclusion) of evidence, ultimately those directions may not be required when regard is later had to the entirety of the trial.

The judgment:
The judgment was delivered on 15 May 2020. You can access it here. See especially the paragraphs cited above.

MNA v The State of Western Australia [2020] WASCA 84

In brief:
The appellant was convicted of two counts of indecent dealing against children. The appellant appealed on several bases, including matters relating to recent complaint and propensity evidence. The appellant argued that the trial judge erred by permitting use of the complaint evidence as ‘recent complaints’, by admitting prior convictions as propensity evidence, and by improperly directing the jury about the prior convictions. The Court of Appeal found that the trial judge erred in directing the jury about how they could use the propensity evidence and consequently allowed the appeal. In a joint judgment, Buss P and Mitchell JA decided that no other ground of appeal was established. In a separate judgment, Derrick J regarded the propensity evidence as inadmissible at trial.

Reasons:
In relation to the complaint evidence, Buss P and Mitchell JA found that it was not improperly received in the circumstances given that at trial the appellant’s counsel made a tactical decision not to object to it ([29]-[34]). Their honours also found that the trial judge’s direction was appropriate as it ‘did no more than indicate the jury could consider the complaint evidence in determining the consistency, the believability and the credibility of the complainants… the jury would not have understood the trial judge to be inviting them to regard the complainants’ response to, and complaints in relation to, the alleged assaults as supporting the prosecution case’ ([38]).

The propensity evidence matter concerned the appellant’s previous convictions for ‘using electronic communication with intent to procure a person he believed to be under the age of 16 years to engage in sexual activity’ ([53]). Applying Evidence Act 1906 (WA) s 31A, Buss P and Mitchell JA found that the prior convictions were admissible because they ‘did have significant probative value as to the issue of whether any touching that did occur was deliberate and sexually motivated (so as to be indecent)’ ([70]). Their honours clarified that the touching itself would have to be independently established by other evidence ([76]). Through a process of analysing the similarities and distinguishing features between the prior convictions and the counts at trial, their honours found that the prior convictions could not be significantly probative in respect of establishing that the appellant did in fact touch the complainants as alleged ([89]). Their honours set out that ‘Because the propensity evidence was admissible for a limited purpose, it was incumbent on the trial judge to direct the jury on the permissible limits of the use of the evidence’ ([89]). At trial there was no such direction, and this gave rise to a miscarriage of justice ([92]). The State did not assert that the ‘proviso’ applied, and as such Buss P and Mitchell JA allowed the appeal, set aside the convictions and ordered a new trial.  

In a separate judgment, Derrick J found that the prior convictions should not have been admitted at all. His honour regarded the elements of deliberateness and indecency as separate from one another, and whilst the prior convictions could have been admissible to prove indecency, he did not regard indecency as a fact in issue at trial ([170]-[196], [206]-[208]). Derrick J therefore also found that the appeal should be allowed, that the proviso should not be invoked, and that the convictions should be set aside and a new trial ordered.

Comment:
The difference in conclusion between the majority and Derrick J on the admissibility of the propensity evidence highlights the importance of first identifying the fact in issue that the evidence is said to be significantly probative of. Though not strictly a matter of evidence law, this in turn demonstrates the importance of precisely understanding the nature of each element to be proved.

The judgment:
The judgment was delivered on 29 May 2020. You can access it here. See especially the paragraphs cited above.

Leung v The State of Western Australia [2020] WASCA 81

In brief:
The appellant was convicted of three offences at trial. The appellant appealed on the basis that the trial judge misdirected the jury in relation to the appellant’s alleged lie that he had not been into a particular room. The appellant argued that the lie was not capable of being allocated to any particular charge as an implied admission of guilt (an ‘Edwards lie’) and should have been left to the jury as a lie that was only capable of affecting the appellant’s credit. The Court of Appeal found that the trial judge did not misdirect the jury and therefore dismissed the appeal.

Reasons:
In a joint judgment, Mazza and Beech JJA identified that an ‘element of the appellant’s submission is that, unless the lie could be connected to a particular offence and shown to amount to an admission of the guilt of that offence, there was no room for using the lie as an implied admission of anything’ ([73]). Their honours restated the principle that a ‘lie need not reveal knowledge of the whole of an offence’, and that ‘it is sufficient if it reveals knowledge of some aspect of it, including some circumstance or event connected with it’ ([74]). Applying that principle to the present case, their honours found that ‘the appellant’s lie as to whether he had been in the room was probative, as part of a circumstantial case, of whether he had knowledge of the safe and its contents… Whether the appellant had such knowledge was material to whether he had the necessary knowledge to establish his possession of each of the methylamphetamine, the sum of cash and the firearm’ ([76]). The lie was therefore capable of being probative in relation to each of the three offences, and whether it was to be taken as an implied admission of guilt in relation to each offence was a matter for the jury to decide ([77]). Their honours found that the trial judge’s directions to the jury were adequate in the circumstances.

Buss P’s judgment is to similar effect, noting that ‘it was plainly open to the jury to be satisfied that the appellant’s alleged lie constituted a denial by the appellant of ever having been in the master bedroom; that the alleged lie was a deliberate lie told out of a consciousness of guilt to conceal the appellant’s knowledge of and involvement with the contents of the safe; and that the alleged lie was probative of the appellant’s knowledge, and sole or non‑exclusive possession, of all of the drugs, the cash and the revolver in the safe’ ([66]). Therefore it was not a lie that was only capable of going to credit – it was capable of ‘constituting an implied admission against interest in relation to all of the illicit items in the safe’ ([67]).

Comment:
This case is of interest in identifying the outer limits of lies that are capable of being taken as implied admissions of guilt. Taken with previous authorities, this case is useful to establish the nature and degree of connection required between the lie and the event.

The judgment:
The judgment was delivered on 27 May 2020. You can access it here. See especially paragraphs [65]-[70] (Buss P); [71]-[83] (Mazza and Beech JJA).