Part 3.9: Identification Evidence
Section 114: Exclusion of visual identification
Section 115: Exclusion of Evidence of Identification by
Smith (No 3)
 NSWSC 771, Garling J
Evidence Act 1995 (NSW) 137 – murder – S observed person at scene – later saw single photograph of A accompanying online news article about the murder - admissibility of identification evidence by S - unreliability - displacement effect
Held: Identification evidence by S is inadmissible under s 137.
When a person sees, or is shown, a single photograph rather than a photo array from which one photograph is chosen, it is obvious that an identification arising from that single photograph may be unreliable. As well, where the photograph is associated with the description that the person is wanted by the police, albeit for the provision of assistance, those difficulties are magnified: at . Alexander (1981) 145 CLR 395 at 400. Risk of displacement effect i.e. that displaced memory may be the basis of a later in-court or other identification made in the presence of the accused person. Real risk that S has, entirely unconsciously, substituted that image in the photograph for the image in his mind of the face of the person whom he saw
Section 116: Direction to JuryTaliaiNSW CCA 11.4.1997
Part 3.10: PrivilegesDivision 1: Client legal privilege
Sections 117, 118, 119: Definitions, Legal Advice &
Did you bring to his attention when he was
cross-examining her that he hadn't ever put to her that there was an occasion
where you had carried her from her bed up _?
Did it concern you that your barrister didn't ever put to
(N) that she was aware that you were going to go into the caravan and take (the
The CCA The two questions that commenced “Did it concern
you …” were not unfair. However, on the evidence, all questions were irrelevant
and inadmissible since they could not substantially affect the assessment of the
appellant’s credibility as required under ss 102 and 103 Evidence
Act. The appeal was nonetheless dismissed because there was no
miscarriage of justice.
 NSWSC 1670, McCallum
1995 (NSW) s.119 – murder – accused served
tendency notice in relation to victim – Crown called for all witness statements,
conference notes and other notes in relation to potential witnesses of incidents
contained in notice – whether such documents covered by legal professional
privilege despite tendency notice
Held: privilege remains – followed
Petroulias (2007) 176 A crim R 309
 NSWCCA 298
Evidence Act 1995 (NSW) s.118, s.119 – Crown prosecutor had handed to court document advising that DPP had determined there be no further proceedings – on application for costs the applicant sought access to that document on basis DPP had waived privilege – trial judge dismissed applicant's application - applicability of ss 118 and 119 - Whether privilege was waived when the legal advising report was handed to the Court.
Held: i) The primary judge erred in finding ss 118 and 119 applied. The procedure did not involve the adducing of evidence, and as such the Evidence Act was not engaged: . (ii) The only person who could waive privilege was the Director or a person authorised by him: . (iii) The Crown Prosecutor did not have implied authority to waive privilege, as such waiver was neither necessary nor incidental to the task of informing the court that the Director had made a direction under the Director of Public Prosecutions Act 1986, s 7(2)(b): .
Section 122: Loss of client legal privilege: consent and related
Section 123: Loss of client legal privilege: defendantsPearson
Division 1B: Sexual assault communications privilege
* Criminal Procedure Amendment (Sexual Assault Communications Privilege) Act
1999 inserted Part 13 into Criminal Procedure Act - privilege applies to
documents produced on subpoena. * Part 13 became Part 7 (ss.147-159) by Crimes
Legislation Amendment (Sentencing) Act 1999. * For summary and discussion of
provisions see Glenn Bartley, Sexual Assault Communications Privilege,
10.10.2000 (NSW Bar Association Criminal Law Section Seminar)* s.148(d) amended
by Statute Law (Miscellaneous Provisions) Act (No.2) 2000 No.93,
to commence 8.12.2000. * Renumbered ss.295-306 Criminal Procedure
Act - commenced 3.7.2003
Division 2: Other privileges
Section 128: Privilege in respect of self-incrimination in other
 NSWSC 45, Howie J (see CCA and HCA below)
Evidence Act 1995 (NSW) s.128(8) – certificate promised by Howie J in trial (see above) – jury unable to decide on verdict and retrial ordered – application for certificate – new trial judge indicated certificate would prevent Crown using evidence of accused from first trial at retrial - late application for certificate - whether certificate should be granted
Held: certificate granted – section not intended to prevent evidence of accused at first trial being used at retrial – however no basis for declining to issue certificate where promised – cannot issue certificate on limited basis specifying evidence to be used at retrial – use of certificate depends on interpretation of trial judge – no basis for refusing to grant certificate despite lengthy delay in application
 NSWCCA 65
Evidence Act 1995 (NSW) s.128 – appeal against refusal of TJ to warn jury Crown witnesses had received immunity from prosecution
Held: s.128 certificate does not provide immunity from prosecution – only prevents any evidence given in current trial being used against witnesses
 NSWCCA 3
Evidence Act 1995 (NSW) s.128(5) – prison murder – Crown witness admitted lying in statement to police as to presence of cellmate – declined to answer questions at trial – TJ refused to require witness to answer question under s.128(5)
Held: no error in approach taken by trial judge – evidence as to inconsistency of statement and directions sufficiently dealt with issue – no need to force witness to give evidence possibly incriminating him
(2006) 160 A Crim R 243, NSWCCA (see HCA judgment below)
Evidence Act 1995 (NSW) s.128 – see above (judgments by Howie J) – accused gives evidence at trial, is issued a certificate, and later seeks to exclude his evidence at the first trial from being tendered at retrial, relying upon the certificate –TJ would not grant s128 certificate thereby preventing appellant from giving oral evidence at his retrial - whether miscarriage of justice.
Held: certificate operates to protect evidence given by the appellant at his first trial which is within the terms of the certificate - appeal allowed - new trial ordered.
 NSWSC 638 (Whealy J)
Evidence Act 1995 (NSW) s.128 – terrorism offences – application by Crown to force witness to give evidence - witness awaiting trial for terrorism offences – disputing records of interview.
Held: order refused – evidence suggests witness would be admitting to offences under Pakistani terrorism act – also not in interests of justice to force witness to give evidence taking into account importance of evidence, effect on witness' trial and anticipated attack on
credibility of witness.
(2007) 231 CLR 260, HCA
Evidence Act 1995 (NSW), s.128 – Crown appeal and cross appeal by accused against order of a new trial - conspiracy to import cocaine - retrial – first TJ admitted as circumstantial evidence telephone intercept conversations of domestic drug supply arrangements - accused granted certificate of protection under s128(6) to explain domestic drug supply - certificate granted on basis conversations were not evidence of a "fact in issue" under s128(8) – In re-trial, second TJ ruled certificate should not have been granted because evidence came under s128(8) – evidence given by accused at first trial subject to a s128(6) certificate was thus admitted and the accused was convicted – second TJ also earlier ruled that s128(6) certificate would prevent accused's evidence being admitted as the retrial was another "proceeding" under s128(7) - whether first TJ erred in granting certificate under s128(6) – whether second TJ ruling on s128(7) was incorrect.
Held: First TJ erred in granting s128(6) certificate as telephone intercept conversations went to a "fact in issue" under 128(8). Section 128(8) is not limited to direct evidence that the accused did the act or had the requisite state of mind. It applies to evidence by an accused from which the act or state of mind can be inferred, including circumstantial evidence.
Second TJ's ruling on s128(7) was incorrect as the section does not apply to re-trials. Section 128(7) ensures evidence given at a trial is not used later in different proceedings.
NCW CCA erred in holding that first TJ's ruling on s128(8) prevented the second TJ's reception of the evidence at the second trial. Second TJ was not bound by first TJ's ruling or certificate.
Matter remitted to CCA.
 NSWSC, 1154 (Button J)
Evidence Act 1995 (NSW) s.128 murder
Held: if witness objects to giving evidence is granted certificate under s.128 judge will explain to jury granting of certificate and its effect
 NSWSC, 418 (Hamill J)
Evidence Act 1995 (NSW) s.128 murder – co-offender had charge of murder reduced to accessory after fact them no billed – called to give evidence in trial against accused for murder – whether interests of justice to require witness to give evidence
Held: considered the following matters – no current outstanding proceedings – no bill not final and court would be reluctant to intervene if Crown chose to reinstate matter – adversarial proceedings would be fundamentally altered by compulsory examination if new proceedings brought – evidence significant – possibility of permanent stay if proceedings reinstated although hard to get – s.128 prohibits derivative use – disadvantaged if future proceedings brought – certificate granted and evidence required to be given
Division 3: Evidence excluded in the public interest
Section 130: Exclusion of evidence of matters of stateDPP v Smith
 NSWSC 1655, RA Hulme J
Evidence Act 1995 (NSW) s.130 – murder, riot and affray – violent confrontation between two motorcycle gangs at airport resulting in death – application for pseudonyms for witnesses who have indicted fear for safety
Held: application granted – evidence provided established several witnesses have real; and genuine fear
AG(NSW) v Lipton
 NSWCCA 156
Evidence Act 1995 (NSW) s.130, 131A – drugs – sentencing offender sought access to police documents in relation to possibility partner was a police informer – whether s.130 applied – appropriate test under s.130
Held: because person objecting to the production of material and the person required to produce the material was the same person s.130 applied (s.131A) – test under s.130 requires balancing
 Whatever may be the principle applicable under the general law, the test to be applied under s 130 is clearly a balancing exercise which requires the court to be satisfied that, relevant to the present circumstances, the public interest in preserving secrecy or confidentiality in relation to a category of documents outweighs the public interest in their production. In undertaking that balancing exercise, the court is required to take into account those factors identified in sub-s (5) as are relevant in the circumstances of the case. That exercise is not to be constrained by unexpressed rules derived from the general law, although the same result may be expected on either approach.