Public Defenders > Legal Research > Papers by Public Defenders

Criminal Law Update

by Helen Cox
Public Defender
12 March 2010


 

TABLE OF CONTENTS

INTRODUCTION

EVIDENCE ACT 1995 (NSW)

LAW ENFORCEMENT (POWERS AND RESPONSIBILITIES) AMENDMENT (SEARCH POWERS) ACT 2009

CRIMES (APPEAL AND REVIEW) AMENDMENT (DOUBLE JEOPARDY) ACT 2009

CRIMES (CRIMINAL ORGANISATIONS CONTROL) ACT 2009

CRIMINAL ORGANISATIONS LEGISLATION AMENDMENT ACT 2009

COURTS AND CRIMES LEGISLATION AMENDMENT ACT 2009

CRIMES (SENTENCING PROCEDURE) AMENDMENT (COUNCIL LAW ENFORCEMENT OFFICERS) ACT 2009

CRIMES (SENTENCING PROCEDURE) AMENDMENT (VICTIM IMPACT STATEMENTS) ACT 2008

CRIMES AMENDMENT (SEXUAL OFFENCES) ACT 2008: AMENDING CRIMES ACT 1900 AND CRIMES (SENTENCING PROCEDURE ACT) 1999

CRIMINAL LEGISLATION AMENDMENT ACT 2009: AMENDING CRIMES ACT 1900 AND CRIMES (DOMESTIC AND PERSONAL VIOLENCE) ACT 2007

MENTAL HEALTH LEGISLATION AMENDMENT (FORENSIC PROVISIONS) ACT 2008

COURTS AND CRIMES LEGISLATION AMENDMENT ACT 2009: AMENDING BAIL ACT 1978

COURTS AND OTHER LEGISLATION AMENDMENT ACT 2009: AMENDING CHILDREN (CRIMINAL PROCEEDINGS) ACT 1987 AND CRIMES (SENTENCING PROCEDURE) ACT 1999

CHILDREN (CRIMINAL PROCEEDINGS) AMENDMENT (YOUTH CONDUCT ORDERS) ACT 2008

CASES - GENERAL LAW

ACKNOWLEDGEMENTS

SOURCES

________________________________________________________

INTRODUCTION

This paper attempts to cover the most significant changes in the criminal law in 2009. The Evidence Act 1995 had some substantial amendments. This paper examines the most important. A number of other legislative amendments occurred and the more important of those have been covered. A few interesting and recent cases have also been examined.

 


 

EVIDENCE ACT 1995 (NSW)


Section 59. The hearsay rule - exclusion of hearsay evidence

Section 59 was amended by the insertion of the underlined words.

Section 59:

(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.

(2) Such a fact is in this Part referred to as an asserted fact.

(2A) For the purposes of determining under subsection (1) whether it can reasonably be supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made.

Note. Subsection (2A) was inserted as a response to the decision of the Supreme Court of NSW in R v Hannes (2000) 158 FLR 359.

Prior to the amendments to evidence, a previous representation made by a person was only classified as hearsay if the person making the representation intended to assert a fact that was implied in the representation. Now the question is whether, 'it can reasonably be supposed that', the person intended to assert that fact. Under s 59(2A) the Court may have regard to the circumstances in which the representation was made in considering whether it is hearsay.

The question of what constitutes an 'intended assertion'under s 59 was considered by the New South Wales Court of Criminal Appeal in R v Hannes (2000) 158 FLR 359 where both a broad and a subjective approach were suggested ALRC Report 102 at [7.34]-[7.48]. The purpose of this change is to make clear that the test for what is intended is an objective one, based on the 'external and objective manifestations normally taken to signify intention ALRC Report 102 at [7.60]-[7.62]'.


Section 60. Exception: evidence relevant for a non-hearsay purpose

The previous section was amended as follows:

Section 60:

(1) The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representationan asserted fact.

(2) This section applies whether or not the person who made the representation had personal knowledge of the asserted fact (within the meaning of section 62 (2)).

Note. Subsection (2) was inserted as a response to the decision of the High Court of Australia in Lee v The Queen (1998) 195 CLR 594.
(3) However, this section does not apply in a criminal proceeding to evidence of an admission.
Note. The admission might still be admissible under section 81 as an exception to the hearsay rule if it is 'first-hand'hearsay: see section 82.

These amendments were made in response to the Australian Law Reform Commission (ALRC) recommendation that s 60 should be amended to confirm that s 60 operates to permit evidence admitted for a non-hearsay purpose to be used to prove the truth of the facts asserted in the representation, whether or not the evidence is first-hand or more remote hearsay. The recommendation was made in response to the High Court case of Leev The Queen (1998) 195 CLR 594, where the statement of a witness, made to police and containing an incriminating statement by the accused to the witness, was not permitted to be used as proof of the truth of the incriminating statement, giving rise to the view that s 60 does not apply to second-hand hearsay.

In the report, the Commission took the view that the decision in Lee could be regarded as supporting a view of s 60, inconsistent with the intention or scheme of the uniform Evidence Acts. The decision, the report noted, created confusion and uncertainty about the operation of s 60. The report noted that there was difficulty in determining the precise ratio of Lee, (ibid at [7.104]).

Subsection (3) was inserted to provide for the exclusion in criminal proceedings of second-hand and more remote hearsay evidence of an admission.

An amendment to s 82 of the uniform Evidence Act was made to make clear that s 82 did not allow second-hand hearsay evidence of admissions made by the accused. This was based on the belief that admissions can be highly persuasive and highly prejudicial to the accused and the importance of maximising the reliability of such evidence.


Section 65. Exception: criminal proceedings if maker not available

The amending Act amended s 65 as indicated below:

Section 65:

(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.

(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation was:

(a) was made under a duty to make that representation or to make representations of that kind, or

(b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or

(c) was made in circumstances that make it highly probable that the representation is reliable, or

(d) against the interests of the person who made it at the time it was made.

(d) was:

(i) against the interests of the person who made it at the time it was made, and

(ii) made in circumstances that make it likely that the representation is reliable.

Note. Section 67 imposes notice requirements relating to this subsection.

The exception allowing statements made against interests is amended to require the statement also be made in circumstances that make it likely that the representation is reliable.

In R v Suteski (2002) 56 NSWLR 182 the prosecution relied on s 65(2)(d) to tender an electronic recording of a police interview with an accomplice who had subsequently pleaded guilty. The person had refused to give evidence at the committal, and adopted the same position at trial.

The NSW Court of Criminal Appeal held that the trial judge had not erred in admitting into evidence representations made in the police interview as evidence of the truth of the facts asserted in those representations. The Court noted that counsel for the appellant, at trial and on appeal, had acknowledged that the Crown had taken all reasonable steps to compel the witness to give evidence and that the trial judge had regarded that acknowledgement as a recognition that the sanction of contempt was unlikely to make the witness change his mind.

The decision in Suteski has provoked concern about allowing the admission of previous representations from a person complicit in an offence to be used against a defendant who does not have the opportunity to cross-examine that person ALRC Report 102 at [8.39]-[8.41]. The Commission noted:

'The assumption behind s 65(2)(d) is that where a statement is against the interests of the person who made it, this provides an assurance of reliability. However, where the person who made the statement is an accomplice or co-accused, this may not be the case. An accomplice or co-accused may be motivated to downplay the extent of his or her involvement in relevant events and to emphasise the culpability of the other.

There is reason to suspect that an accomplice or co-accused would be more inclined to take such a course where (for example) they have immunity from prosecution. Where the accomplice gains immunity from prosecution the reliability safeguard of the representation being against self-interest no longer applies: the accomplice can fabricate evidence to implicate the accused and will only suffer the legal consequences of perjury if discovered ALRC Report 102 at [8.45]-[8.46] '.

The amendment is thus designed to place another hurdle before hearsay is allowed in under this exception.


Section 66. Exception: criminal proceedings if maker available

Section 66:

(2A) In determining whether the occurrence of the asserted fact was fresh in the memory of a person, the court may take into account all matters that it considers are relevant to the question, including:
(a) the nature of the event concerned, and

(b) the age and health of the person, and

(c) the period of time between the occurrence of the asserted fact and the making of the representation.

Note. Subsection (2A) was inserted as a response to the decision in the High Court of Australia in Graham v The Queen (1998) 195 CLR 606.

Section 66(2A) has been introduced to make clear that 'freshness'is not confined to a time period. The Court must take into account all matters that it considers relevant, including the nature of the offence concerned and the age and health of the person.

This was in response to Graham v The Queen (1998) 195 CLR 606; 72 ALJR 1491 (and subsequently applied) which required a temporal element.

In Graham v The Queen (ibid), the issue concerned complaint made some six years after alleged sexual assault offences had taken place on the defendant's daughter. She had had opportunity to complain earlier, which she had not taken, and the relevant statement under s 60 had been made in response to a conversation with a friend. Gaudron, Gummow & Hayne JJ (giving a majority judgment) held:

'[4] The word 'fresh', in the context of s 66, means 'recent' or 'immediate'. It may also carry with it a connotation that describes the quality of the memory (as being 'not deteriorated or changed by lapse of time') but the core of the meaning intended, is to describe the temporal relationship between 'the occurrence of the asserted fact' and the time of making the representation. Although questions of fact and degree may arise, the temporal relationship required will very likely be measured in hours or days, not, as was the case here, in years'.

Callinan J (and Gleeson CJ concurring) stated:

'[34] I return to the appellant's argument that the Court of Criminal Appeal misconstrued s 66 of theEvidence Act. Whilst it cannot be doubted that the quality or vividness of a recollection will generally be relevant in an assessment of its freshness, its contemporaneity or near contemporaneity, or otherwise will almost always be the most important consideration in any assessment of its freshness. The Court of Criminal Appeal took the view that the section laid emphasis on the 'quality' of the memory and in consequence, the regard that should have been paid to the delay in making the complaint was not paid. There may be cases in which evidence of an event relatively remote in time will be admissible pursuant to s 66, but such cases will necessarily be rare and requiring of some special circumstance or feature. It is desirable that s 66 be given such a construction not only for certainty but also to avoid as much as possible the delay and expense of voir dire hearings to explore questions of vividness and the like, with their attendant opportunities for the rehearsal of cross-examination and evidence'.

The High Court held that the complaint evidence under consideration did not meet the freshness requirement and, accordingly, the appeal was allowed.

The issue arises particularly in relation to sexual assault offences and identification evidence. Submissions to the ALRC were advanced by, amongst others, the New South Wales Health Department Child Protection and Violence Prevention Unit that evidence of a child's complaint ought be admitted in sexual offence cases, irrespective of the time that elapsed between the alleged incident and complaint, given that there are many compelling and valid reasons why victims of sexual assault do not immediately report sexual assault, including trauma, shame and embarrassment. The ALRC rejected this suggestion but took the view that the 'hours or days'test was too strict. The changes are intended to permit courts to adopt a more flexible approach to the admission of evidence under this section, taking into account other factors in an assessment of the freshness of the event.


Section 72. Exception: Aboriginal and Torres Strait Islander traditional laws and customs

Section 72:

The hearsay rule does not apply to evidence of a representation about the existence or non-existence, or the content, of the traditional laws and customs of an Aboriginal or Torres Strait Islander group.


Section 79. Exception: opinions based on specialised knowledge

Section 79:

(1) If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.

(2) To avoid doubt, and without limiting subsection (1):

(a) a reference in that subsection to specialised knowledge includes a reference to specialised knowledge of child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their development and behaviour during and following the abuse), and

(b) a reference in that subsection to an opinion of a person includes, if the person has specialised knowledge of the kind referred to in paragraph (a), a reference to an opinion relating to either or both of the following:

(i) the development and behaviour of children generally,

(ii) the development and behaviour of children who have been victims of sexual offences, or offences similar to sexual offences.

Opinion evidence of child development and child behaviour will not be excluded by the opinion rule in s 76.


Section 82. Exclusion of evidence of admissions that is not first-hand

Section 82:

Section 81 does not prevent the application of the hearsay rule to evidence of an admission unless:
(a) it is given by a person who saw, heard or otherwise perceived the admission being made, or

(b) it is a document in which the admission is made.

Note.Section 60 does not apply in a criminal proceeding to evidence of an admission.

Section 82 of the uniform Evidence Act was amended to ensure that evidence of admissions in criminal proceedings that are not first-hand are excluded from the ambit of s 60. The section was amended by the addition of the notation at the end of the section.


Section 85. Criminal proceedings: reliability of admissions by defendants

Section 85(1) was amended by removing subs(1) and rewriting it.

Section 85:

(1) This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant:
(a) in the course of official questioning; or

(b) as a result of an act of another person who is capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued.

(1) This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant:
(a) to, or in the presence of, an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence, or

(b) as a result of an act of another person who was, and who the defendant knew or reasonably believed to be, capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued.

Note.Subsection (1) was inserted as a response to the decision of the High Court of Australia inKelly v The Queen(2004) 218 CLR 216.

(2) Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected.

(3) Without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account:

(a) any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject, and

(b) if the admission was made in response to questioning:

(i) the nature of the questions and the manner in which they were put, and

(ii) the nature of any threat, promise or other inducement made to the person questioned.

The purpose behind the amendment was to replace the requirement that the admission be made, 'in the course of official questioning', with the requirement that the admission be made, 'to, or in the presence of, an investigating official who at that time was performing functions in connection with the investigation' It was inserted as a response to the decision in the High Court of Kelly v The Queen (2004) 218 CLR 216.

The case of Kelly concerned Tasmanian legislation wherein unrecorded confessions made during, 'the course of official questioning', were excluded.

During a video recorded interview, the appellant retracted an earlier unrecorded admission, claiming the admission had been made under duress. Less than an hour after the interview finished and as he was about to be taken to hospital for samples to be taken, the appellant allegedly said to police, 'Sorry about the interview -- no hard feelings, I was just playing the game'The statement was not made in response to any question asked by police. Objection had been taken to the admission on the basis of the Tasmanian equivalent to s 281 Criminal Procedure Act 1986 (NSW).

Section 281:

(1) This section applies to an admission:
(a) that was made by an accused person who, at the time when the admission was made, was or could reasonably have been suspected by an investigating official of having committed an offence, and

(b) that was made in the course of official questioning, and

(c) that relates to an indictable offence, other than an indictable offence that can be dealt with summarily without the consent of the accused person.

(2) Evidence of an admission to which this section applies is not admissible unless:
(a) there is available to the court:
(i) a tape recording made by an investigating official of the interview in the course of which the admission was made, or

(ii) if the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in subparagraph (i) could not be made, a tape recording of an interview with the person who made the admission, being an interview about the making and terms of the admission in the course of which the person states that he or she made an admission in those terms, or

(b) the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in paragraph (a) could not be made.
(3) The hearsay rule and the opinion rule (within the meaning of the Evidence Act 1995) do not prevent a tape recording from being admitted and used in proceedings before the court as mentioned in subsection (2).

(4) In this section:

investigating official means:

(a) a police officer (other than a police officer who is engaged in covert investigations under the orders of a superior), or

(b) a person appointed by or under an Act (other than a person who is engaged in covert investigations under the orders of a superior) whose functions include functions in respect of the prevention or investigation of offences prescribed by the regulations.

official questioning means questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence.

reasonable excuse includes:
(a) a mechanical failure, or

(b) the refusal of a person being questioned to have the questioning electronically recorded, or

(c) the lack of availability of recording equipment within a period in which it would be reasonable to detain the person being questioned.

tape recording includes:
(a) audio recording, or

(b) video recording, or

(c) a video recording accompanied by a separately but contemporaneously recorded audio recording.

The question on appeal was whether the admissions had been made during, 'the course of official questioning'Gleeson CJ, Hayne and Heydon JJ (McHugh and Kirby JJ dissenting) held that the expression, 'in the course of official questioning', meant the period between when questioning commenced to when it ceased. Since the admission had been made after police questioning had ceased, the statement was admissible. There was no requirement that there be a tape recording made of the admission.

'[52] The expression 'in the course of official questioning' in s 8 of the Act marks out a period of time running from when questioning commenced to when it ceased. ...

[53] In this matter 'the course of official questioning' ended when Detective Sergeant Lopes ceased to ask questions and said at 9.17pm: '[W]e'll conclude the interview'. Other activities of the appellant not related to official questioning and other police procedures not involving questioning then took place. No further question was asked which triggered the impugned statement. To treat the impugned statement as having been made in the course of official questioning would be to ignore the statutory language'.

McHugh and Kirby JJ held in dissent that, 'in the course of official questioning', can extend to any confession or admission made in connection with police questioning.

The amendment was in response to this narrow view of, 'official questioning', taken by the majority of the High Court in Kelly (ibid). The wording of the amendment is wide, for example it applies to an official investigating any offence.

The amendment to s 85 does not affect the operation of the mandatory taping provisions in s 281 Criminal Procedure Act 1986 (NSW) that still uses the phrase, 'in the course of official questioning'. Kelly remains binding with respect to s 281 Criminal Procedure Act 1986 (NSW). Recording requirements in New South Wales apply to admissions made in the course of official questioning or interviewing by a person who is, or ought reasonably to have been, suspected by a police officer of having committed certain serious offences.

Accordingly, an admission made by an accused to the police during the period outside that which is designated, 'official questioning', will not necessarily need to be electronically recorded to be admissible.

It is to be noted that the ALRC considered whether the amending mandatory taping provisions, which are contained in various State and Territory specific legislation, should be consolidated within the uniform Evidence Acts (and, in the process, amended so as to overcome the effect of Kelly). As part of this change, the ALRC also recommended consideration be given to developing and implementing uniform mandatory taping provisions throughout the Australian jurisdiction.

The best solution would be to require that, 'no confession to a police officer be admitted unless video recorded - whether or not the maker was in custody; whether or not the maker was suspected, or ought reasonably to have been suspected, of committing the crime confessed; and whether or not the maker had been asked any question by a police officer Kelly v The Queen (2004) 218 CLR 216 [31]'.


Section 89. Evidence of silence

Section 89 was amended as follows:

Section 89:

(1) In a criminal proceeding, an inference unfavourable to a party must not be drawn from evidence that the party or another person failed or refused:
(a) to answer one or more questions, or

(b) to respond to a representation,

put or made to the party or other person in the course of official questioningby an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence.

This amendment was to reflect the extended definition of 'official questioning'set out in s 85.


Sections 97. The tendency rule

Section 97:

(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind , ifunless:
(a) the party adducing the evidence has not givenseeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, orand

(b) the court thinks that the evidence would notwill, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

(2) Subsection (1) (a) does not apply if:
(a) the evidence is adduced in accordance with any directions made by the court under section 100, or

(b) the evidence is adduced to explain or contradict tendency evidence adduced by another party.

Note. The tendency rule is subject to specific exceptions concerning character of and expert opinion about accused persons (sections 110 and 111). Other provisions of this Act, or of other laws, may operate as further exceptions.




Section 98. The coincidence rule

Section 98:

(1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless:
(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and

(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

Note. One of the events referred to in subsection (1) may be an event the occurrence of which is a fact in issue in the proceeding.

(2) Subsection (1) (a) does not apply if:
(a) the evidence is adduced in accordance with any directions made by the court under section 100, or

(b) the evidence is adduced to explain or contradict coincidence evidence adduced by another party.

Note. Other provisions of this Act, or of other laws, may operate as exceptions to the coincidence rule.

Section 97 (tendency) and Section 98 (coincidence) have been re-drafted to simplify the text, removing the use of double negatives. There was no intention to change the effect of the sections.


Section 101A. Credibility evidence

Section 101A:

Credibility evidence, in relation to a witness or other person, is evidence relevant to the credibility of the witness or person that:
(a) is relevant only because it affects the assessment of the credibility of the witness or person, or

(b) is relevant:

(i) because it affects the assessment of the credibility of the witness or person, and

(ii) for some other purpose for which it is not admissible, or cannot be used, because of a provision of Parts 3.2 to 3.6.


Notes.

1Sections 60 and 77 will not affect the application of paragraph (b), because they cannot apply to evidence that is yet to be admitted.

2Section 101A was inserted as a response to the decision of the High Court of Australia inAdam v The Queen(2001) 207 CLR 96.




Section 102. The credibility rule

Section 102:

Credibility evidence about a witness is not admissible.


Notes.

1 Specific exceptions to the credibility rule are as follows:

• evidence adduced in cross-examination (sections 103 and 104)

• evidence in rebuttal of denials (section 106)

• evidence to re-establish credibility (section 108)

• evidence of persons with specialised knowledge (section 108C)

• character of accused persons (section 110)


Other provisions of this Act, or of other laws, may operate as further exceptions.


2 Sections 108A and 108B deal with the admission of credibility evidence about a person who has made a previous representation but is not a witness.


This amendment in s 101A was introduced in response to the High Court in Adam v The Queen (2001) 207 CLR 96. Adam led to a situation where the credibility rule was not applied if evidence sought to be adduced was relevant both to credibility and relevant for some other purpose but not admissible or capable of being used for that other purpose because of a provision of Pts 3.2 to Pts 3.6 inclusive.

That was not the intention of Pt 3.7, which was designed to control the admissibility of such evidence ALRC Report 102 at [12.5].

The ALRC report noted ALRC Report 102 that Odgers illustrated this point with the example of prior statements. Evidence of a prior statement relevant to the facts in issue may not be admissible to prove a fact stated in it because it does not come within one of the hearsay exceptions. It is likely, however, also to be relevant to the witness's credibility.

The interpretation given by the High Court in Adam had the result that the credibility rule did not apply to the evidence, ie it was allowed in. The statement would then be admissible for a credibility use without having to satisfy the requirements of Pt 3.7. Having been admitted for credibility purposes, s 60 would then apply to lift the hearsay rule so that the evidence is admissible as evidence of the facts stated, unless it was excluded under ss 135-137.

Substantially the same ruling applied to s 104, which provides protections to an accused person when cross-examined. A literal interpretation of Adam also excluded the operation of those provisions, reducing the protection available to the accused. In other words, if the Crown could characterise evidence as both being relevant (to the facts in issue) and credibility evidence, then Pt 3.7 would not apply and an accused could be cross-examined by the Crown about the matter.

The ALRC thought it was unsatisfactory to have a situation in which control of evidence relevant for more than one purpose, including credibility, depended entirely upon the exercise of the discretion and exclusionary rules contained in ss 135-137. In the Commission's view, this had the potential to lead to greater uncertainty, inconsistent outcomes and increased appeals ALRC Report 102 at [12.14].

Section 104(4)(a) was deleted to remove the overlap between s 104(4)(a) and Pt 3.8 (character). Section 102 states that credibility evidence about a witness is not admissible. Credibility evidence is defined in s 101A (amended as indicated).


Section 103. Exception: cross-examination as to credibility

Section 103 was amended as follows:

(1) The credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence has substantial probative valuecould substantially affect the assessment of the credibility of the witness.

(2) Without limiting the matters to which the court may have regard in deciding whether the evidence has substantial probative valuefor the purposes of subsection (1), it is to have regard to:

(a) whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth, and

(b) the period that has elapsed since the acts or events to which the evidence relates were done or occurred.

The test of, 'has substantial probative value', is replaced by a test of, 'could substantially affect the assessment of the credibility of the witness'.


Section 104. Further protections: cross-examination of accused

Section 104:

(1) This section applies only to credibility evidence in a criminal proceeding and so applies in addition to section 103.

(2) A defendant must not be cross-examined about a matter that is relevant only because it is relevant toto the assessment of the defendant's credibility, unless the court gives leave.

(3) Despite subsection (2), leave is not required for cross-examination by the prosecutor about whether the defendant:

(a) is biased or has a motive to be untruthful, or

(b) is, or was, unable to be aware of or recall matters to which his or her evidence relates, or

(c) has made a prior inconsistent statement.

(4) Leave must not be given for cross-examination by the prosecutor about any matter that is relevant only because it is relevant to the defendant's credibility unless:
(a) evidence has been adduced by the defendant that tends to prove that the defendant is, either generally or in a particular respect, a person of good character, or

(b) evidence adduced by the defendant has been admitted that tends to prove that a witness called by the prosecutor has a tendency to be untruthful, and that is relevant solely or mainly to the witness's credibility.

(4) Leave must not be given for cross-examination by the prosecutor under subsection (2) unless evidence adduced by the defendant has been admitted that:
(a) tends to prove that a witness called by the prosecutor has a tendency to be untruthful, and

(b) is relevant solely or mainly to the witness's credibility.

(5) A reference in subsection (4) (b) to evidence does not include a reference to evidence of conduct in relation to:
(a) the events in relation to which the defendant is being prosecuted, or

(b) the investigation of the offence for which the defendant is being prosecuted.

Section 104(4)(a) Evidence Act 1995 was deleted to remove the overlap between s 104(4)(a) and Pt 3.8 (character).


Section 106. Exception: rebutting denials by other evidence

The following provisions replaced the previous s 106.

Section 106:

(1) The credibility rule does not apply to evidence that is relevant to a witness's credibility and that is adduced otherwise than from the witness if:
(a) in cross-examination of the witness:
(i) the substance of the evidence was put to the witness, and

(ii) the witness denied, or did not admit or agree to, the substance of the evidence, and

(b) the court gives leave to adduce the evidence.
(2) Leave under subsection (1)(b) is not required if the evidence tends to prove that the witness:
(a) is biased or has a motive for being untruthful, or

(b) has been convicted of an offence, including an offence against the law of a foreign country, or

(c) has made a prior inconsistent statement, or

(d) is, or was, unable to be aware of matters to which his or her evidence relates, or

(e) has knowingly or recklessly made a false representation while under an obligation, imposed by or under an Australian law or a law of a foreign country, to tell the truth.

The ALRC Report sets out the following at [12.62]:

'The collateral facts rule at common law provides that, subject to certain exceptions, an answer given by a witness to a question in cross-examination relating solely to a collateral issue (such as credit) is final, and further evidence may not be led on the issue. Section 106 of the uniform Evidence Acts was drafted to replicate and slightly extend the common law exceptions to the collateral facts rule'.

This section was amended to allow evidence to rebut non-admissions, as well as denials of a witness, with the leave of the Court. Leave is not required to adduce specified categories of credibility evidence identified in paras (a) to (e) of s 106.

Prior to the amendments to the Act, s 106 gave a list of situations in which credibility evidence might be admitted to rebut 'a denial'by a witness. These list of situations are now contained in s 106(2) as circumstances where leave is not required.

The ALRC 102 determined that 'a more flexible approach' should be adopted.

Leave is now required where the evidence does not fall into one of the pre-existing categories. As the matters on which evidence is sought to be called under s 106 must be put to the witness in cross-examination, the evidence must have met the requirements under s 103 of being capable of substantially affecting the assessment of the credibility of the witness.

In summary, the credibility rule (that is, credibility evidence about a witness is not admissible) will not apply to evidence in rebuttal which is relevant to the credibility of the witness if:

(1) the evidence is relevant to a fact in issue in another way and the evidence sought to be elicited is admissible for that purpose; or

(2) the substance of the evidence was put to the witness, it was denied and the evidence falls within one of the categories of s 106(2); or

(3) the substance of the evidence was put to the witness, it was denied and the Court gives leave to adduce the evidence.

The discretionary or mandatory exclusions are still possible under one of the provisions of Pt 3.11.

The third position gives the Court a degree of flexibility.


Section 108A. Admissibility of evidence of credibility of person who has made a previous representation

Section 108A:

(1) If:
(a) because of a provision of Part 3.2, the hearsay rule does not apply to evidence of a previous representation, and
(b) evidence of the representation has been admitted, and
(c) the person who made the representation has not been called, and will not be called, to give evidence in the proceeding,
evidence that is relevant only to the credibility of the person who made the representation is not admissible unless the evidence has substantial probative value.

(1) If:

(a) evidence of a previous representation has been admitted in a proceeding, and

(b) the person who made the representation has not been called, and will not be called, to give evidence in the proceeding,

credibility evidence about the person who made the representation is not admissible unless the evidence could substantially affect the assessment of the person's credibility.

(2) Without limiting the matters to which the court may have regard in deciding whether the evidence has substantial probative valuefor the purposes of subsection (1), it is to have regard to:
(a) whether the evidence tends to prove that the person who made the representation knowingly or recklessly made a false representation when the person was under an obligation to tell the truth, and

(b) the period that elapsed between the doing of the acts or the occurrence of the events to which the representation related and the making of the representation.




Section 108B. Further protections: previous representations of an accused who is not a witness

Section 108B:

(1) This section applies only in a criminal proceeding and so applies in addition to section 108A.

(2) If the person referred to in that section is a defendant, the credibility evidence is not admissible unless the court gives leave.

(3) Despite subsection (2), leave is not required if the evidence is about whether the defendant:

(a) is biased or has a motive to be untruthful, or

(b) is, or was, unable to be aware of or recall matters to which his or her previous representation relates, or

(c) has made a prior inconsistent statement.

(4) The prosecution must not be given leave under subsection (2) unless evidence adduced by the defendant has been admitted that:
(a) tends to prove that a witness called by the prosecution has a tendency to be untruthful, and

(b) is relevant solely or mainly to the witness's credibility.

(5) A reference in subsection (4) to evidence does not include a reference to evidence of conduct in relation to:
(a) the events in relation to which the defendant is being prosecuted, or

(b) the investigation of the offence for which the defendant is being prosecuted.

(6) Another defendant must not be given leave under subsection (2) unless the previous representation of the defendant that has been admitted includes evidence adverse to the defendant seeking leave.

Section 108A has been changed and s 108B is new. This new s 108A has not made any major changes. Section 108A still applies to evidence led either to attack credit or to rehabilitate credit of the maker of a previous representation which has been tendered in evidence and where the maker is not called as a witness. Section 108B is new and followed recommendations of the ALRC that s 108A should be amended to provide that, where the defendant in a criminal trial has not, or will not, be called to give evidence and evidence of a previous representation of the defendant has been admitted, the same restrictions should apply to evidence relevant to the credibility of a defendant as apply under s 104 when a defendant gives evidence at trial. Section 108A applies to other persons. Section 108B applies to the accused.


Section 108C. Exception: evidence of persons with specialised knowledge

Section 108C:

(1) The credibility rule does not apply to evidence given by a person concerning the credibility of another witness if:
(a) the person has specialised knowledge based on the person's training, study or experience, and

(b) the evidence is evidence of an opinion of the person that:

(i) is wholly or substantially based on that knowledge, and

(ii) could substantially affect the assessment of the credibility of the witness, and

(c) the court gives leave to adduce the evidence.
(2) To avoid doubt, and without limiting subsection (1):
(a) a reference in that subsection to specialised knowledge includes a reference to specialised knowledge of child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their behaviour during and following the abuse), and

(b) a reference in that subsection to an opinion of a person includes, if the person has specialised knowledge of that kind, a reference to an opinion relating to either or both of the following:

(i) the development and behaviour of children generally,

(ii) the development and behaviour of children who have been victims of sexual offences, or offences similar to sexual offences.

This amendment provided a new exception to the credibility rule which provides that, if a person has specialised knowledge based on the person's training, study or experience, the credibility rule does not apply to evidence given by the person where the evidence is an opinion of that person that is wholly or substantially based on that knowledge and could substantially affect the assessment of the credibility of another witness. It is made clear this applies to evidence about child development and behaviour.


Section 117. Definitions

Section 117:

(1) In this Division:

client includes the following:

(a) an employer (not being a lawyer) of a lawyer,

(a) a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under a contract of service),

(b) an employee or agent of a client,

(c) an employer of a lawyer if the employer is:

(i) the Commonwealth or a State or Territory, or

(ii) a body established by a law of the Commonwealth or a State or Territory,

(d) if, under a law of a State or Territory relating to persons of unsound mind, a manager, committee or person (however described) is for the time being acting in respect of the person, estate or property of a client - a manager, committee or person so acting,

(e) if a client has died - a personal representative of the client,

(f) a successor to the rights and obligations of a client, being rights and obligations in respect of which a confidential communication was made.

confidential communication means a communication made in such circumstances that, when it was made:

(a) the person who made it, or

(b) the person to whom it was made,

was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.

confidential document means a document prepared in such circumstances that, when it was prepared:

(a) the person who prepared it, or

(b) the person for whom it was prepared,

was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.

Lawyerincludes an employee or agent of a lawyer.

lawyermeans:

(a) an Australian lawyer, and

(b) an Australian-registered foreign lawyer, and

(c) an overseas-registered foreign lawyer or a natural person who, under the law of a foreign country, is permitted to engage in legal practice in that country, and

(d) an employee or agent of a lawyer referred to in paragraph (a), (b) or (c).

party includes the following:
(a) an employee or agent of a party,

(b) if, under a law of a State or Territory relating to persons of unsound mind, a manager, committee or person (however described) is for the time being acting in respect of the person, estate or property of a party - a manager, committee or person so acting,

(c) if a party has died - a personal representative of the party,

(d) a successor to the rights and obligations of a party, being rights and obligations in respect of which a confidential communication was made.

(2) A reference in this Division to the commission of an act includes a reference to a failure to act.

The client legal privilege provisions of the Evidence Act 1995 now applies to any compulsory process for disclosure, such as pre-trial discovery and the production of documents in response to a subpoena and in non-curial contexts, including search warrants and notices to produce documents, as well as court proceedings as a result of the new s 131A.

Section 117(1)(a) Evidence Act 1995 has been amended to allow that a 'client' of a lawyer be defined as a person who engages a lawyer to provide professional legal services, or who employs a lawyer for that purpose, including under a contract of service (for example, as in-house counsel).

The definition of a 'lawyer'in the Dictionary of the Evidence Act has been amended to provide that a lawyer is a person who is admitted to the legal profession in an Australian jurisdiction or in any other jurisdiction.

Section 118(c) Evidence Act 1995 has been amended to replace the words 'the client or a lawyer'with 'the client, a lawyer or another person'.

Section 122(2) Evidence Act 1995 has been amended to provide that evidence may be adduced where a client or party has acted in a manner inconsistent with the maintenance of the privilege. Otherwise, the provisions remain in a form in order to give guidance as to what acts are or are not acts inconsistent with the maintenance of the privilege.

Section 123 Evidence Act 1995 remains applicable only to the adducing of evidence at trial by an accused in a criminal proceeding.


Section 128. Privilege in respect of self-incrimination in other proceedings

The following provisions replaced the previous s 128.

Section 128:

(1) This section applies if a witness objects to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove that the witness:
(a) has committed an offence against or arising under an Australian law or a law of a foreign country, or

(b) is liable to a civil penalty.

(2) The court must determine whether or not there are reasonable grounds for the objection.

(3) If the court determines that there are reasonable grounds for the objection, the court is to inform the witness:

(a) that the witness need not give the evidence unless required by the court to do so under subsection (4), and

(b) that the court will give a certificate under this section if:

(i) the witness willingly gives the evidence without being required to do so under subsection (4), or

(ii) the witness gives the evidence after being required to do so under subsection (4), and

(c) of the effect of such a certificate.
(4) The court may require the witness to give the evidence if the court is satisfied that:
(a) the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country, and

(b) the interests of justice require that the witness give the evidence.

(5) If the witness either willingly gives the evidence without being required to do so under subsection (4), or gives it after being required to do so under that subsection, the court must cause the witness to be given a certificate under this section in respect of the evidence.

(6) The court is also to cause a witness to be given a certificate under this section if:

(a) the objection has been overruled, and

(b) after the evidence has been given, the court finds that there were reasonable grounds for the objection.

(7) In any proceeding in a NSW court or before any person or body authorised by a law of this State, or by consent of parties, to hear, receive and examine evidence:
(a) evidence given by a person in respect of which a certificate under this section has been given, and

(b) evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence,

cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence.

Note.This subsection differs from section 128(7) of the Commonwealth Act. The Commonwealth provision refers to an 'Australian Court'instead of a 'NSW court'.

(8) Subsection (7) has effect despite any challenge, review, quashing or calling into question on any ground of the decision to give, or the validity of, the certificate concerned.

(9) If a defendant in a criminal proceeding for an offence is given a certificate under this section, subsection (7) does not apply in a proceeding that is a retrial of the defendant for the same offence or a trial of the defendant for an offence arising out of the same facts that gave rise to that offence.

(10) In a criminal proceeding, this section does not apply in relation to the giving of evidence by a defendant, being evidence that the defendant:

(a) did an act the doing of which is a fact in issue, or

(b) had a state of mind the existence of which is a fact in issue.

(11) A reference in this section to doing an act includes a reference to failing to act.
Notes.

1Bodies corporate cannot claim this privilege. See section 187.

2Clause 3 of Part 2 of the Dictionary sets out what is a civil penalty.

3The Commonwealth Act includes subsections to give effect to certificates in relation to self-incriminating evidence under the NSW Act in proceedings in federal and ACT courts and in prosecutions for Commonwealth and ACT offences.

4Subsections (8) and (9) were inserted as a response to the decision of the High Court of Australia inCornwell v The Queen[2007] HCA 12 (22 March 2007).

The amendments provide that a protection certificate extends to any proceeding before any person or body 'authorised by a law of this State, or by consent of parties, to hear, receive and examine evidence'The protection remains, even if the granting of the certificate was in error.

The amendments clarify the procedure under s 128 by simplifying the order in which the process of certification is outlined in the section.

Rather than including the requirement for the Court to inform the witness of his or her rights and the effect of the section, the section now, more simply, provides:

that the witness may object to giving the evidence on the grounds that it may incriminate him or her (or make him or her liable to a civil penalty);

that the Court shall determine whether or not that claim is based on reasonable grounds;

if the claim is reasonable, that the Court can then tell the witness that he or she may choose to give the evidence or the Court will consider whether the interests of justice require that the evidence be given; and

if the evidence is given, either voluntarily or under compulsion, that a certificate shall be granted preventing the use of that evidence against the person in another proceeding.

The general provisions regarding the duty of the Court to inform witnesses and parties of their rights in relation to privileges under Pt 3.10 remain applicable.


Part 3.11.Discretions to exclude evidenceDiscretionary and mandatory exclusions

In order to reflect the fact that s 137 is not a discretion to exclude evidence but a mandatory exclusion, the heading at Pt 3.11 Discretion to exclude evidence of the Evidence Act 1995 was amended to read Discretionary and mandatory exclusions. This is based on an ALRC recommendation that it was deemed necessary to emphasise the mandatory nature of s 137.


Section 165. Unreliable evidence

Section 165 was amended as follows:

Section 165:

(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence:
(a) evidence in relation to which Part 3.2 (hearsay evidence) or 3.4 (admissions) applies,

(b) identification evidence,

(c) evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like,

(d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding,

(e) evidence given in a criminal proceeding by a witness who is a prison informer,

(f) oral evidence of official questioningquestioning by an investigating official of a defendant that is questioning recorded in writing that has not been signed, or otherwise acknowledged in writing, by the defendant,

(g) in a proceeding against the estate of a deceased person - evidence adduced by or on behalf of a person seeking relief in the proceeding that is evidence about a matter about which the deceased person could have given evidence if he or she were alive.

(2) If there is a jury and a party so requests, the judge is to:
(a) warn the jury that the evidence may be unreliable, and

(b) inform the jury of matters that may cause it to be unreliable, and

(c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.

(3) The judge need not comply with subsection (2) if there are good reasons for not doing so.

(4) It is not necessary that a particular form of words be used in giving the warning or information.

(5) This section does not affect any other power of the judge to give a warning to, or to inform, the jury.

(6) Subsection (2) does not permit a judge to warn or inform a jury in proceedings before it in which a child gives evidence that the reliability of the child's evidence may be affected by the age of the child. Any such warning or information may be given only in accordance with section 165B.

(6) Subsection (2) does not permit a judge to warn or inform a jury in proceedings before it in which a child gives evidence that the reliability of the child's evidence may be affected by the age of the child. Any such warning or information may be given only in accordance with section 165A (2) and (3).

Note.The Commonwealth Act does not include subsection (6).

Section 165A. Warnings in relation to children's evidence

Section 165A:

1) A judge in any proceeding in which evidence is given by a child before a jury must not do any of the following:
(a) warn the jury, or suggest to the jury, that children as a class are unreliable witnesses,

(b) warn the jury, or suggest to the jury, that the evidence of children as a class is inherently less credible or reliable, or requires more careful scrutiny, than the evidence of adults,

(c) give a warning, or suggestion to the jury, about the unreliability of the particular child's evidence solely on account of the age of the child,

(d) in the case of a criminal proceeding - give a general warning to the jury of the danger of convicting on the uncorroborated evidence of a witness who is a child.

(2) Subsection (1) does not prevent the judge, at the request of a party, from:
(a) informing the jury that the evidence of the particular child may be unreliable and the reasons why it may be unreliable, and

(b) warning or informing the jury of the need for caution in determining whether to accept the evidence of the particular child and the weight to be given to it,

if the party has satisfied the court that there are circumstances (other than solely the age of the child) particular to the child that affect the reliability of the child's evidence and that warrant the giving of a warning or the information.

(3) This section does not affect any other power of a judge to give a warning to, or to inform, the jury.

The provisions of s 165A and s 165B of the Evidence Act 1995 were combined. The new section is more specific as to what is prohibited in the way of a general warning. It retains the power of the trial judge to give a warning in relation to a particular witness but specifies that such warning cannot be given on the basis of the age of the child only.


Section 165B. Delay in prosecution

Section 165 B:

(1) This section applies in a criminal proceeding in which there is a jury.

(2) If the court, on application by a party, is satisfied that the defendant has suffered a significant forensic disadvantage because of the consequences of delay, the court must inform the jury of the nature of that disadvantage and the need to take that disadvantage into account when considering the evidence.

(3) The judge need not comply with subsection (2) if there are good reasons for not doing so.

(4) It is not necessary that a particular form of words be used in informing the jury of the nature of the significant forensic disadvantage suffered and the need to take that disadvantage into account, but the judge must not in any way suggest to the jury that it would be dangerous or unsafe to convict the defendant solely because of the delay or the forensic disadvantage suffered because of the consequences of the delay.

(5) The judge must not warn or inform the jury about any forensic disadvantage the defendant may have suffered because of delay except in accordance with this section, but this section does not affect any other power of the judge to give any warning to, or to inform, the jury.

(6) For the purposes of this section:

(a) delay includes delay between the alleged offence and its being reported, and

(b) significant forensic disadvantage is not to be regarded as being established by the mere existence of a delay.

(7) For the purposes of this section, the factors that may be regarded as establishing a significant forensic disadvantageinclude, but are not limited to, the following:
(a) the fact that any potential witnesses have died or are not able to be located,

(b) the fact that any potential evidence has been lost or is otherwise unavailable.

A party must make a request for the direction and the Court must be satisfied that the party has suffered 'significant forensic disadvantage'An appropriate warning may be given. The provision makes it clear that the mere passage of time does not necessarily establish significant forensic disadvantage and a judge may refuse to give the warning if there are good reasons for doing so. No particular form of words need be used in giving the warning, however, in warning the jury the judge may not suggest that it is 'dangerous to convict' because of any demonstrated forensic disadvantage.

This amendment to the legislation is one of the most controversial of the amendments. There was a division of opinion between the ALRC and the Victorian Law Reform Commission (VLRC), who supported the proposed changes, and the New South Wales Law Reform Commission (NSWLRC), which was vehement in its opposition.

The amendment addresses Longman v The Queen (1989) 168 CLR 79 direction. This direction would primarily arise in relation to sexual assault trials but, of course, is relevant to any trial involving a significant delay between the commission of the offence and the making of a complaint. The Longman direction requires trial judges to warn juries that a delay causes forensic disadvantages to the accused and that it is 'dangerous to convict on the complainant's evidence alone without scrutinising that evidence with great care, and being satisfied of its truth and accuracy'.

Recent cases in the High Court ( Crampton v The Queen (2000) 206 CLR 161 and Doggett v The Queen (2001) 208 CLR 343) and the New South Wales Court of Criminal Appeal ( R v BWT (2002) 54 NSWLR 241) have affirmed, and somewhat expanded, the direction, including requiring the direction to be given when no request is made by defence counsel.

The ALRC and the VLRC were of the opinion that the content and application of the warning needed to be changed. Their opinion was based on the following:

'In seeking to appeal-proof decisions, trial judges are often motivated by concern about the consequences for the complaint of the conviction being overturned on appeal, such as having to undergo a retrial. However, the unintended effect of this, 'If in doubt, warn', policy may be to give the appearance of judicial imprimatur to the recasting of sexual assault complainants as a suspect class of witness ALRC Report at [18.95] '.

The changes were opposed by the NSWLRC on the basis of the relationship between the Longman direction and the principle of a fair trial.

'In view of the NSWLRC,Longmanshould not be codified.Longmanwarnings are dictated by the requirement of a fair trial. These operate at a more fundamental level than the rules of evidence: they do not belong in evidence legislation. Moreover, their attempted reduction to statutory form would threaten the flexibility essential to their proper application and development ALRC Report 102 at [18.131] '.

The NSWLRC found the proposed changes failed to give adequate weight to the forensic disadvantages that must be suffered by an accused by reason of delay, was of the opinion that the direction should be given even when not requested, and was opposed to the prohibition against the use of the term 'dangerous to convict'.


Section 192A. Advance rulings and findings

In response to TKWJ v The Queen (2002) 212 CLR 124 the Court is now permitted to give advance rulings and findings in relation to evidence.

The High Court in TKWJ (ibid) overturned decisions in the New South Wales Court of Criminal Appeal that accepted the power of a judge to provide advance rulings on questions of evidence and admissibility. The High Court's decision was based on the fact that, in the judges' opinions, advance rulings may give rise to risk that the trial judge would be seen as other than impartial.

Section 192A:

Where a question arises in any proceedings, being a question about:

(a) the admissibility or use of evidence proposed to be adduced, or

(b) the operation of a provision of this Act or another law in relation to evidence proposed to be adduced, or

(c) the giving of leave, permission or direction under section 192,

the court may, if it considers it to be appropriate to do so, give a ruling or make a finding in relation to the question before the evidence is adduced in the proceedings.

 


 

LAW ENFORCEMENT (POWERS AND RESPONSIBILITIES) AMENDMENT (SEARCH POWERS) ACT 2009

Commenced on 29 May 2009

This amending Act introduced a scheme for covert search warrants into LEPRA. Although there has been quite a bit of text change to Pt 5 of the Act, including the provisions relating to ordinary warrants, there has been little effective change to the scheme for the issue and use of ordinary search warrants. The legislation applies to the list of serious offences and allows the:

search of premises without the knowledge of the occupier;

entry of adjoining premises without the knowledge of the occupier of the adjoining premises;

impersonation of another person to execute a warrant; and

anything else that is reasonable for the purpose of concealing execution of a warrant.

Delay in service of an Occupiers Notice for up to six months is provided and extensions of up to three years are allowed in exceptional circumstances.

 


 

CRIMES (APPEAL AND REVIEW) AMENDMENT (DOUBLE JEOPARDY) ACT 2009

Commenced on 24 September 2009

The Act amends the Crimes (Appeal and Review) Act 2001 in two ways:

(1) abolishing the principle of double jeopardy in relation to Crown appeals: s 68A (applies to Crown appeals commenced but not determined at 24 September 2009)

(2) allowing the further retrial of a person following an acquittal in circumstances where the retrial was tainted: s 105(1A).

In relation to s 68A there is an outstanding appeal awaiting judgment from the CCA - Carroll - on a constitutional argument.

In the mean time, the following summary for use in pending Crown Appeals (drafted by A Haesler SC, J Manuell SC and P Supomo and used by the Public Defenders in Crown Appeals) may be included in the respondent's submissions:

'To the extent that the discretion not to intervene after the Crown establish error was enlivened by the potential emotional consequences on the respondent of being sentenced again, the double jeopardy principle, Parliament has directed that it no longer apply:Crimes (Appeal and Review) Act2001 s 68A.

The Court's duty to act fairly to all parties nonetheless remains and the discretionary principles expressed inHouse(1936) 55 CLR 499 continue to apply. The discretion not to intervene may stillbe enlivened by the following: delay (eg:Hernando(2002) 136 A Crim R 451,Hallocoglu(1992) 29 NSWLR 67;Gip(2006) 161 A Crim R 173;Miski[2006] NSWCCA 178 &Nahle[2007] NSWCCA 40 at [41]); conduct of the Crown (eg:Tait(1979) 46 FLR 386;Dawes[2004] NSWCCA 363 &Kalache(2000) 111 A Crim R 152 at [231]); disparity with a co-offender (eg:Borkowski[2009] NSWCCA 102); exceptional circumstances such as health and vulnerability of the respondent (eg:Barker[2009] NSWCCA 255); and the respondent's progress toward rehabilitation while serving the early sentence (eg:Assaad[2009] NSWCCA 182).

Similarly, to the extent that a court can take into account 'double jeopardy'when formulating the proper sentence to be imposed, the potential emotional consequences on the respondent of being sentenced again cannot be taken into account. The Court is, however, not precluded from imposing a proper but lenient sentence by the application of ordinary sentencing principles and the matters outlined above in relation to the discretion to intervene'.

 

 


 

CRIMES (CRIMINAL ORGANISATIONS CONTROL) ACT 2009

Commenced on 3 April 2009

This Act "...provides for the making of declarations and orders for the purpose of disrupting and restricting the activities of criminal organisations and their members."


Declared organisations

The Commissioner of Police may apply to an eligible judge for a declaration that an organisation is a 'declared organisation': s 6(1). A declaration can be made where the judge is satisfied that members of the organisation associate for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity, and that the organisation represents a serious risk to public safety and order: s 9(1). The rules of evidence do not apply and the judge is not required to provide reasons for a declaration, other than to a person conducting a review of the Act under s 39: s 13.


Interim Control Orders and Control Orders

The Act allows the Supreme Court, on application by the Commissioner of Police, to make an interim control order relating to one or more persons pending the hearing and final determination of an application for a control order: s 14(1).

The Supreme Court may make a control order in relation to a person subject to an interim control order if satisfied that the person is a member of a particular declared organisation and that sufficient grounds exist for making the order: s 19(1).


Offence of association between members of declared organisations subject to interim control order or control order

It is an offence for a controlled member of a declared organisation to associate with another controlled member of the declared organisation: s 26(1). The maximum penalty is two years for a first offence or five years for a second or subsequent offence. The prosecution does not need to prove that the association was for any particular purpose or that it would have led to the commission of an offence: s 26(6).

CRIMINAL ORGANISATIONS LEGISLATION AMENDMENT ACT 2009

Commenced generally on 19 May 2009

This Act amends the Crimes (Criminal Organisations Control) Act 2009. The amendments make it an offence for a controlled member of a declared organisation to recruit another person to become a member of the organisation.

Section 30A seeks to curtail criminal involvement in high-risk industries by enabling authorities that regulate certain industries to be provided with information by the Commissioner of Police about declared organisations and members.

The legislation makes provision for criminal organisation search warrants under LEPRA.

 


 

COURTS AND CRIMES LEGISLATION AMENDMENT ACT 2009

Commenced on 3 November 2009

This Act further amends the Crimes (Criminal Organisations Control) Act 2009. These amendments were intended to assist police law enforcement.

Where police reasonably suspect that a person is one upon whom notice of an interim control order must be served, they can require disclosure of their identity and request that person remain at a particular place as is reasonably necessary to serve the notice: s 16(6), (7).

A court can make a control order against a former member of a declared organisation with an ongoing involvement with the organisation: s 19(1)(a).

It is an offence for a controlled member of a declared organisation to associate with another controlled member of the declared organisation on three or more occasions at any time within three months. The maximum penalty is three years imprisonment: s 26(1A).

If police have reasonable cause to suspect that a person is a controlled member of a declared organisation and is associating with another controlled member of the declared organisation they may request the person disclose their identity: s 26(7A).

It is an offence for a person to refuse or fail to comply with a request to disclose their identity: s 35A.

 


 

CRIMES (SENTENCING PROCEDURE) AMENDMENT (COUNCIL LAW ENFORCEMENT OFFICERS) ACT 2009

Commenced on 9 June 2009

This Act amends s 21A(2)(a) of the Crimes (Sentencing Procedure) Act 1999 to include, 'council law enforcement officers', in the list of class of victims aggravating the offence.

The Act also amends the standard non-parole period table under Item 1A 'Murder'to include 'council law enforcement officers'with a standard non-parole period of twenty-five years.

 


 

CRIMES (SENTENCING PROCEDURE) AMENDMENT (VICTIM IMPACT STATEMENTS) ACT 2008

Commenced on 1 January 2009

This Act amends the Crimes (Sentencing Procedure) Act 1999.

It applies to all victim impact statements received after the commencement of the amendments.

The amendments include:

The definition in s 26 of personal harm is extended to include psychological or psychiatric harm.

Extends the availability of victim impact statements to cases involving prescribed sexual offences and witnesses to such offences who suffer personal harm as a direct result of the offence.

Amendments to s 30 permit photographs, drawings or other images to be included in victim impact statements.

Amendments to s 30(2) and s 30A(1) make it clear that a parent or some other person having parental responsibility may act on behalf of a child victim.

Under subss 30A(3) and (4) a victim is entitled to read out the statement in accordance with closed-circuit television arrangements in proceedings in which the victim is permitted to use such procedures.

 

 


 

CRIMES AMENDMENT (SEXUAL OFFENCES) ACT 2008: AMENDING CRIMES ACT 1900 AND CRIMES (SENTENCING PROCEDURE ACT) 1999

Commenced on 1 January 2009
This Act amended the Crimes Act 1900 and the Crimes (Sentencing Procedure Act) 1999 as follows:

Crimes Act 1900

Section 61J. Aggravated sexual assault
The following aggravating factors have been inserted:

(h) the alleged offender breaks and enters into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence, or

(i) the alleged offender deprives the alleged victim of his or her liberty for a period before or after the commission of the offence.

Section 61M. Aggravated indecent assault

Subsection (2) was amended to increase the age of the victim from 'under the age of ten years'to 'under the age of 16 years'.

Section 61O. Aggravated act of indecency

Subsection (2A) was added which provides that it is an aggravated offence to commit an offence on a victim under 16 years, knowing the offence is being filmed for child pornography.

Section 66A. Sexual intercourse child under 10

Section 66A replaced the pre-existing sections.

(1) Child under 10

Maximum penalty: imprisonment for twenty-five years.

(2) Child under 10 - aggravated offence

Maximum penalty: imprisonment for life.

Section 66C. Sexual intercourse - child between 10 and 16
The following factor has been inserted:

(h) the alleged offender deprives the alleged victim of his or her liberty for a period before or after the commission of the offence.

Section 66EB. Procuring or grooming child under 16 for unlawful sexual activity

The offence of meeting a child following grooming was inserted.

Section 80D. Causing sexual servitude
The penalty for this offence increased from nineteen years to twenty years.

Section 80G. Incitement to commit sexual offence
A new offence was inserted.

Section 91E. Obtaining benefit from child prostitution

Punishment for this offence was increased to fourteen years if the offence involves a child under the age of 14 years.

Section 91H. Production, dissemination or possession of child pornography

For the offence of possession of child pornography with production and dissemination, the maximum penalty was increased from five years to ten years.

Division 15B. Voyeurism and related offences
These new offences were introduced.

 


 

CRIMES (SENTENCING PROCEDURE) ACT 1999

Section 21A. Aggravating, mitigating and other factors in sentencing

The following was added to s 21A:

(5A) Special rules for child sexual offences

In determining the appropriate sentence for a child sexual offence, the good character or lack of previous convictions of an offender is not to be taken into account as a mitigating factor if the court is satisfied that the factor concerned was of assistance to the offender in the commission of the offence.

(5B) Subsection (5A) has effect despite any Act or rule of law to the contrary.

(6) In this section:

child sexual offence means:

(a) an offence against section 61I, 61J, 61JA, 61K, 61M, 61N, 61O or 66F of the Crimes Act 1900 where the person against whom the offence was committed was then under the age of 16 years, or

(b) an offence against section 66A, 66B, 66C, 66D, 66EA, 66EB, 91D, 91E, 91F, 91G or 91H of the Crimes Act 1900, or

(c) an offence against section 80D or 80E of the Crimes Act 1900 where the person against whom the offence was committed was then under the age of 16 years, or

(d) an offence against section 91J, 91K or 91L of the Crimes Act 1900 where the person who was being observed or filmed as referred to in those sections was then under the age of 16 years, or

(e) an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in any of the above paragraphs.

serious personal violenceoffence means a personal violence offence (within the meaning of the Crimes (Domestic and Personal Violence) Act 2007) that is punishable by imprisonment for life or for a term of 5 years or more.

Section (5A). Special rules for child sexual offences

This section was added so that good character or lack of previous convictions is not to be taken into account for child sexual assault offences if the Court is satisfied this factor was of assistance to the offender in the commission of the offence.

Section 24A. Mandatory requirements for supervision of sex offenders to be disregarded in sentencing

This section was amended so that the Court is not to take into account on sentence the fact that the offender:

(a) has, or may become, a registrable person under the Child Protection (Offenders Registration) Act 2000 as a consequence of the offence, or

(b) has, or may become, the subject of an order under the Child Protection (Offenders Prohibition Orders) Act 2004 or the Crimes (Serious Sex Offenders) Act 2006.

Section 54D. Exclusions from Division
Subsection (3) was inserted so that standard non-parole period provisions do not apply where an offender is under 18 years at the time of the commission of the offence.

 

 


 

CRIMINAL LEGISLATION AMENDMENT ACT 2009: AMENDING CRIMES ACT 1900 AND CRIMES (DOMESTIC AND PERSONAL VIOLENCE) ACT 2007

Commenced upon assent on 19 May 2009

This Act amended the Crimes Act 1900 and the Crimes (Domestic and Personal Violence) Act 2007 as follows:

Crimes Act 1900

The legislation amended ss 66A and 66C to add as a circumstance of aggravation:

where an alleged offender breaks and enters into any dwelling house or other building with the intention of committing the offence or any other serious offence.



Crimes (Domestic and Personal Violence) Act2007

The legislation creates a new offence of attempt to commit an offence under ss 13(1) and 14(1) of the Crimes (Domestic and Personal Violence) Act 2007; being offences of stalking or intimidating another person and knowingly contravening a prohibition or restriction specified in an apprehended violence order. The same penalty applies as if the person had actually committed the offence.
 
 
 
 
 

MENTAL HEALTH LEGISLATION AMENDMENT (FORENSIC PROVISIONS) ACT 2008

Commenced on 1 March 2009

Mental Health (Criminal Procedure) Act 1990 was renamed Mental Health (Forensic Provisions) Act 1990.

Summary of Major Changes

The major amendment involves replacing Part 5 Forensic patients with the new Part 5 Forensic patients and correctional patients to establish the following categories:

forensic patients - the following person detained in a mental health facility, correctional centre or other place, or released from custody subject to conditions

Person found by court unfit to be tried

Person found by tribunal to be probably become fit to be tried within twelve months and remanded by the Court to a mental health facility or some other facility

Person subject to limiting term

Person found not guilty by reason of mental illness and detained

Person found mentally ill on appeal


correctional patients- persons, other than a forensic or involuntary patient, who has been transferred from a correctional centre to a mental health facility while serving a sentence of imprisonment or while on remand

To confer on the Mental Health Review Tribunal, instead of the Minister for Health, the power to order the release of forensic patients from mental health facilities, the power to grant leave to such patients and the power to make orders as to the care, treatment and detention of such patients

To establish the Forensic Division of the Tribunal to exercise those functions

To provide for appeals from decisions of the Tribunal in exercising those functions

To clarify the responsibility for arrangements for care, treatment, security and release of patients transferred from correctional centres to mental health facilities (correctional patients) and forensic patients held in correctional centres

To set out conditions that may be imposed on an order for release and matters that must be considered by the Tribunal in making decisions

To require the Tribunal, when making decisions about all patients, to consider whether care arrangements that may be alternatives to involuntary care are consistent with safe and effective care

To make various amendments relating to community treatment orders

 

 

 

COURTS AND CRIMES LEGISLATION AMENDMENT ACT 2009: AMENDING BAIL ACT 1978

Commenced generally on 3 November 2009


Bail Act 1978

New ss 22A(1) and (1A) revised the test to be applied by a court in determining whether to hear a further bail application. The grounds for further bail applications are that:

a person with no legal representation at the previous application now has legal representation;

information relevant to the grant of bail that was not presented at the previous application is presented; or

circumstances relevant to the grant of bail have changed since the previous application was made.

The amendment seeks to ensure that any relevant facts or circumstances not brought to the attention of the Court previously are grounds for a further bail application. Examples include any information about the applicant's circumstances, availability of surety, or change in an applicant's physical or mental health.

Section 22A(5) states that a lawyer 'may not'make a further application for bail unless the lawyer is satisfied that the grounds set forth above exist.

 

 


COURTS AND OTHER LEGISLATION AMENDMENT ACT 2009: AMENDING CHILDREN (CRIMINAL PROCEEDINGS) ACT 1987 AND CRIMES (SENTENCING PROCEDURE) ACT 1999

Commenced on 19 June 2009

This Act amended the Children (Criminal Proceedings) Act 1987 and the Crimes (Sentencing Procedure) Act 1999 as follows:

Children (Criminal Proceedings) Act 1987

A court can make limited 'non-association orders'which prohibit an offender from associating with a specified person "except at the times or in such circumstances (if any) as are specified". A court can also make restriction orders to prohibit an offender from frequenting or visiting a specified place, "except at the times or in such circumstances (if any) as are specified": amended s 33D.

Crimes (Sentencing Procedure) Act 1999

Section 17A provided for the imposition of non-association and place restriction orders on offenders sentenced for offences carrying a maximum of six months imprisonment or more. Section 17A was amended to enable a court to make limited non-association orders prohibiting an offender from associating with a specified person, "except at the times or in such circumstances (if any) are specified", and to make a limited place restriction order prohibiting an offender from frequenting or visiting a place, "except at the times or in such circumstances (if any) as are specified".

Section 100A prevents a non-association order from imposing certain restrictions on an offender associating with the offender's close family and prevents a place restriction order from imposing certain restrictions on the places the offender may visit. Section 100A was amended as follows:

A member of the offender's close family can be specified in a non-association order if "exceptional circumstances" exist because there is reasonable cause to believe, if the offender associates with that person, there is a risk that the offender could further offend; and

"close family" persons include persons who are part of the extended family or kin of an offender who is an Aboriginal person or Torres Strait Islander.

 

 


CHILDREN (CRIMINAL PROCEEDINGS) AMENDMENT (YOUTH CONDUCT ORDERS) ACT 2008

Commenced on 1 July 2009

This Act creates a new diversionary scheme in the Children's Court.

The objects of Part 4A, 'Youth Conduct Orders', are:

(a) to establish a scheme for dealing with children who it was felt could not be appropriately dealt with under the diversionary scheme created by the Young Offenders Act 1997;

(b) to address the underlying causes of social behaviour by means of youth conduct orders that operate to prohibit or restrict negative behaviour and to promote socially acceptable behaviour through participation in anti-social behaviour programs; and

(c) to provide for a co-ordinated multi-agency approach to the administration of the scheme.

Currently the scheme applies to persons who reside in, or habitually visit, the area of Campbelltown, Mount Druitt and New England.

An interim youth conduct order must not exceed two months and a final youth conduct order must not exceed twelve months: s 48L(1).

Interim and final youth conduct orders may include "conduct restriction provisions" and "positive conduct provisions": ss 48J(2), K(2). Positive conduct provisions require a child to engage in conduct aimed at addressing the underlying causes of the child's underlying behaviour: s 48C(1)(a). This can include (but is not restricted to) attending a course of study or training; meeting with health and other professionals; and participating in recreational activity.

Conduct restriction provisions include not associating with specified persons, frequenting specific places or types of places, and staying out late.

While a youth conduct order is in effect, and where there has not yet been a plea of guilty or a finding of guilt, the Children's Court is not required to make a finding as to guilt. If the child has pleaded guilty, the Children's Court is not required to decide what penalty is to be imposed: s 48L(7)(a), (b).

If an order is revoked because of non-compliance, the Court may make findings as to guilt and deal with the child under the principal Act. If the Court is satisfied that a child has complied with an order, it may dismiss the charges or deal with the child under the principal Act, having regard to the fact of compliance: s 48R.

 


 

CASES - GENERAL LAW

Official Questioning. Section 281 Criminal Procedure Act 1986


Naa [2009] NSWSC 851, Howie J, 26 August 2009

The accused was charged with murder arising out of the admitted stabbing by the accused of the deceased. Whether the accused had the necessary intent for murder was one issue and the second issue was whether, if he did, the defence of substantial impairment could be sustained. The accused objected to admissions allegedly made by him during a stand-off with police outside the house for several hours while he was armed with a knife. The conversation had been recorded as it occurred in a notebook.

It was submitted on behalf of the accused that the admissions were rendered inadmissible under s 281 of the Criminal Procedure Act 1986 and that they were obtained in breach of Australian law because of the absence of any caution given to the accused before the admissions were made. Reliance was also placed upon the discretion contained in s 90 of the Evidence Act 1995.

The accused made several admissions, both spontaneously and in response to questioning during the stand-off about having stabbed the deceased and his intention to kill her. No caution was given and the conversation was recorded in a notebook by another police officer as the conversation took place.

On the issue as to whether the 'questioning was in connection with investigation of the commission or possible commission of an offence', Howie J held:

'40 The decisive issue for the purpose of s 281 is whether the questioning, such as it was, was questioning 'in connection with the investigation of the commission or possible commission of an offence'. Mr Siva for the accused has argued strenuously that it was, first because it was obvious that officer McCarthy was there as a police officer to investigate the two reports that she had received by police radio, the latter being the stabbing of a female. Secondly it is noted that she asked the accused on a number of occasions during the conversation, which Mr Siva referred to as 'an interview', questions about what he had done and why he had wanted the deceased dead. It was submitted that these questions were asked in connection with the investigation for which the officers had arrived at the scene'.

His Honour read evidence given by police officers at the scene in an earlier voir dire that had taken place before a different judge in earlier proceedings. His Honour found ultimately that the relevant intention or purpose of the police officer in engaging the accused in conversation was to disarm the accused and protect persons in the vicinity.

As to the conversation being recorded in a notebook by the police officer, his Honour accepted that this had occurred because the officer-in-charge had seen this as a situation that could result in an investigation if the accused or any other person had been injured. Accordingly, the conversation was not an interrogation but a negotiation.

Section 281 does not apply to circumstances of a stand-off.

His Honour further stated at [79]:

'I accept that the subjective purpose of the officer engaging with a suspect might not be decisive as to whether the officer is involved in 'official questioning' but I believe it is relevant'.

On the issue of s 281(2)(a)(i) Criminal Procedure Act 1986, the non-recording of the admission, his Honour held that in the circumstances of the case s 281 did not apply. Even if s 281 had applied, Howie J was nevertheless of the opinion that the police officer involved in the negotiation could not record the conversation. He was of the opinion that it was difficult and possibly dangerous to record the conversation in the circumstances and therefore a reasonable excuse existed for the failure to record the admission.

During a subsequent ERISP, the alleged admissions were not put to the accused after he obtained legal advice and declined to discuss the matter. His Honour found that the relevant police officer did not put the alleged admissions to the accused as the accused had been clear that he did not wish to answer any questions. This was a reasonable response by the police officer.

Howie J considered the provisions of ss 138 and 139 of the Evidence Act 1995 (failure to give a caution and exclusion of improperly or illegally obtained evidence) and found that the conversation between the police officer and the accused did not amount to 'questioning'for the purposes of s 139. Howie J considered that, even if he were wrong in this decision, the balancing exercise required in s 138 allowed the admission of the conversation.

Section 281 is set out at pp 8-10 of these notes.


Right to Silence. Distinction between right of silence at common law and under s 89Evidence Act1995


Sanchez [2009] NSW CCA 171, 2 July 2009

The appellant arrived at Sydney Airport where he was arrested with a black laptop computer bag, a backpack, a camera and a brown suitcase. When asked why his computer bag was so heavy, he explained that it was heavy because of the padding to protect the computer.

The appellant was taken to an interview room where he was questioned. A video recording and a transcript of that recording were admitted into evidence without objection.

During the interview, a test was carried out which detected traces of cocaine in the lining of the computer bag. He was cautioned. He was then asked whether both the bags, ie the computer bag and the brown bag, were his and he answered, 'Yes'The appellant answered questions in that interview.

The Australian Federal Police (AFP) arrived. The appellant was subsequently cautioned. He was given the opportunity to speak with a legal practitioner.

Before the appellant spoke to a solicitor, he told the AFP officer that he was to come here for 'a work study for $5,000'He was to go to the Ibis Hotel and he was to be contacted by someone. Thereafter, he contacted a solicitor and declined to make any further statements to police.

At the trial, the appellant gave evidence that he was coming to Australia to do a feasibility study for an Internet caf* for two people he had met in Panama City. On the way to the airport they had given him a new computer bag and 'Sandra', one of his employers, had packed the contents of his old computer bag into the new computer bag for him. He did not notice that the bag was any heavier than his old computer bag. She also gave him a brown bag (the suitcase) in the course of the trip to the airport. He was advised that a Mr Pereira would meet him in Sydney at the Ibis Hotel to help him locate places that might be suitable for an Internet caf*.

The Crown cross-examined the appellant about his failure to put forward the explanation he gave at the trial to the Customs Officers when he was stopped, particularly after he had been told that the computer bag had tested presumptive in favour of cocaine.

The Crown addressed the jury to the effect that the appellant had not advised the Customs officers that the second bag was not his, even though he had been alerted to the fact that the laptop had tested positive for cocaine.

His Honour made a submission similar to the Crown and directed the jury that:

'39 ...In the crown case as a matter of sheer commonsense you would expect some protest, some explanation, some effort to distance himself by telling the customs agents or the federal agents what he claims to be the truth, that is[,] how he came to be in the possession of those two bags. As to why he would not have raised that matter then and there, on the crown case is simply incredible'.

The New South Wales Court of Criminal Appeal examined the applicable legal principles which, insofar as they related to the common law, were stated in Petty v The Queen (1991) 173 CLR 95 at 99.

At common law, the principle as to inferences that may or may not be drawn by the accused's failure to proffer an explanation for his conduct at the time to investigating officials has been set out by Mason CJ, Deane, Toohey and McHugh JJ in Petty (ibid).

'A person who believes on reasonable grounds that he or she is suspected of having been a party to an offence is entitled to remain silent when questioned or asked to supply information by any person in authority about the occurrence of an offence, the identity of the participants and the roles which they played. That is a fundamental rule of the common law which, subject to some specific statutory modifications, is applied in the administration of the criminal law in this country. An incident of that right of silence is that no adverse inference can be drawn against an accused person by reason of his or her failure to answer such questions or to provide such information. To draw such an adverse inference would be to erode the right of silence or to render it valueless. ...

That incident of the right of silence means that, in a criminal trial, it should not be suggested, either by evidence led by the Crown or by questions asked or comments made by the trial judge or the Crown Prosecutor, that an accused's exercise of the right of silence may provide a basis for inferring a consciousness of guilt. Thus, to take an example, the Crown should not lead evidence that, when charged, the accused made no reply.Nor should it be suggested that previous silence about a defence raised at the trial provides a basis for inferring that the defence is a new invention or is rendered suspect or unacceptable'(emphasis added)

In Sanchez (ibid) Campbell JA held:

'54 An important qualification of the extent to which the 'right of silence' prohibits comment at a trial upon failure of an accused to give his account of the facts at an earlier time is stated by McClellan CJ at CL inJonesat [75]:

'Of course, if the accused chooses to break his or her silence and give an explanation before trial which is inconsistent with an account given in evidence, the inconsistency may be used by the prosecution, both to attack the accused's credit, and as consciousness of guilt'.

55 What is meant by 'break his or her silence' here is that the accused, during official questioning, chooses not to exercise the third type of right of silence, and in the course of answering the question gives an account that is inconsistent with his or her evidence at the trial. To similar effect isR v Reeves(1992) 29 NSWLR 109 at 111 per Mahoney JA, 114-115 per Hunt CJ at CL (with whom Badgery-Parker J agreed)'.

The Court found that there had been a misdirection but leave should be refused. Counsel's failure to object at the trial was fatal to the appeal. Whilst the Court held that the relevant section of the judge's Summing-Up indeed offended the common law right of silence as expressed in Petty:

'70 When the two paragraphs are taken together the jury could very well take from them that the Crown was suggesting that the failure of the Appellant to tell the Customs officers or the Federal agents the story that he had told in evidence was a reason why his account of how he came to be in possession of the two bags should not be accepted. Even though the judge was purporting to summarise the Crown submission (albeit inaccurately, as the Crown had said nothing about the failure of the Appellant to tell the substance of his defence to 'Agent Santamaria', or 'the federal agents') the judge said nothing about that being an illegitimate way for the jury to reason. In my view that is a clear contravention of the Appellant's right of silence, as expounded by the High Court majority inPetty, and as illustrated by the decision inGlennon'.

It did not fall foul of s 89 Evidence Act 1995:

'71 ...Section 89 is narrower in its scope than the common law concerning the right of silence. There was neither failure nor refusal by the Appellant to answer one or more questions put or made by an investigating official. Nor did he fail or refuse to respond to a representation from an investigating official. The Appellant made clear to Mr Santamaria that, if Mr Santamaria were to ask any question he would not answer it, but the interview after that point never got to the stage of any question actually being 'put or made', or any representation being 'put or made', to him. Thus the occasion for operation of section 89 has not arisen'.

The issue, however, is in a sense an academic one, given that the two rights apply to an accused in a criminal trial, ie the Evidence Act 1995 does not codify the law with respect to the right to silence and both the common law pre-existing right and the right enshrined in s 89 Evidence Act 1995 co-exist for the protection of the accused at the criminal trial in New South Wales.


Lay Opinions. Section 78 Evidence Act 1995


Partington [2009] NSW CCA 232

This was a decision of the New South Wales Court of Criminal Appeal. The victim was killed in a struggle in the stairwell of a block of flats. A female heard a struggle through the door in one of the flats. She gave evidence the noise sounded like 'somebody's head was being pushed up against the door'The issue was whether the evidence was inadmissible as opinion evidence.

It was held (per McClellan CJ at CL, RA Hulme J agreeing) that:

the evidence was inadmissible;

the opinion evidence did not satisfy the requirements of s 78(b) Evidence Act 1995;

the door deprived the witness of the capacity to perceive what was happening on the other side of the door; and

the opinion was not relevant to understanding her perception of events as she heard them from inside.

There was also consideration of cases dealing with application of s 78(b) Evidence Act 1995.

'46 It is obvious that s 78 allows the admission of an opinion in limited circumstances. Not every opinion which a witness forms after being involved in an event is admissible. It will only be admissible if it is necessary to obtain an adequate account or understanding of what the person perceived of the matter or event. If, for example, a witness observed an altercation between two persons and one of them threw a punch a witness could say that he was of the opinion that the punch was thrown with the intention of hitting another. An observer of a person raising their voice could say whether the voice was raised in anger. A witness could give evidence of their opinion of the speed of a motor vehicle or the age of a person. In each case assuming an accurate account of the event is relevant, the witness is able by expressing an opinion about what they observed, to provide an adequate account or understanding of the witness's perception of the event. However, merely because a person who observed a matter or event forms an opinion about it does not make that opinion admissible.

47 In the present case LB both saw the door and heard noises outside of it. That is the event, or in fact the sequence of continuous events, which she both saw and heard. There was no difficulty in understanding her account of that event. However, she did not see, although obviously she heard, the sounds of the event which was happening on the other side of the door. Although she may have had an opinion, either speculative or an informed guess, as to what was happening outside the door she did not relevantly perceive that event. Her perception was confined to what she could see and hear on the inside. The door deprived her of any capacity to perceive what was happening on the outside. Evidence as to her opinion as to what may have been happening outside the door was not necessary to understand what she perceived from her position inside the room. She was able to give an account of her perception of the event - what she saw and heard - without proffering her opinion as to what she believed was taking place on the other side of the door. It follows that the portions of LB's evidence identified in the appeal and which I have underlined in the extracts from the transcript should have been objected to and rejected.

48 The situation was exacerbated by the final address by the prosecutor and the directions given by the trial judge. The critical issue was whether the appellant had caused Mr Gaspardis's death by hitting his head against the door. On that issue the forensic evidence was not determinative. Before the jury could convict the appellant of either murder or manslaughter they had to be satisfied beyond reasonable doubt that the appellant was responsible for the injuries which broke the deceased's neck. The issue was not as the trial judge suggested whether the jury were satisfied that LB's opinion as to the events which she heard was correct. Rather than resolve the difficulty identified by defence counsel when she asked that the jury be discharged the trial judge's earlier directions tended to confirm it. Although the final direction to which I have referred in [35] significantly minimised the problem, to my mind the damage had already been done'.


Grove J agreed with McClellan J's application of s 78(b) Evidence Act 1995 but was not convinced the evidence was opinion as opposed to a description.



Search Warrants under LEPRA


Mazjb v Kepreokis [2009] NSWSC 314, Hall J, 24 April 2009 at [60]

Hall J considered LEPRA at length, particularly regulations that require a warrant to, 'specify relevant offence'He considered whether reference to offences under s 25 and s 10 of the Drug Misuse and Trafficking Act 1985 was sufficient and whether the warrant should have provided more detail about actual alleged offences.

Having regard to the LEPR Act, the short description of the offences, together with the references to the relevant provisions of the Drug Misuse and Trafficking Act 1985, particulars furnished satisfied the statutory requirement to, 'specify relevant offences', and were free of any ambiguity or uncertainty.


Attempt Possess Border Controlled Drug. Sections 11.1 and 307.6 Criminal Code Act 1995 (C'th)


Onuorah v Regina[2009] NSW CCA 238

The question on appeal was whether an attempt to possess an unlawfully imported substance could be established where the substance possessed was not unlawfully imported (in that the authorities in the country of origin had replaced the relevant drug). This was considered at both common law and under the Code provisions.

This involved a reconsideration of past cases such as Barbouttis (1995) 37 NSWLR 256, Mai (1992) 26 NSWLR 371 and Britten v Alpogut [1987] VR 929 and the Court sat a five judge bench.

The Court confirmed the decision of Mai, finding that actual importation of the drug is not necessary to establish an attempt. There must, however, be an intention to obtain a drug that has been unlawfully imported.

The Court also found the position was unchanged under the Code provisions.


Discharge of Jury at common law


R (C'wealth) v Elomar & Ors (No.27) [2009] NSWSC 985, Whealy J, 21 September 2009; R (C'wealth) v Elomar & Ors (No.29) [2009] NSWSC 1102, Whealy J, 29 September 2009

Unfavourable publicity - test to be applied for discharge - real risk of prejudice. Relevant principles outlined [18-26]:

An application was made to discharge the jury in 'the terrorist trial'in front of Whealy J. The application to discharge had been made due to publicity in the local press with respect to an overseas terrorist trial. It was agreed that there was no connection whatever between the accused in the present trial and the overseas trial.

The relevant test to be applied when there is an application for discharge on the basis of unfavourable publicity is set out in Deitrich v The Queen (1992) 177 CLR 293, 362 per Gaudron J (namely, that a person should not be convicted of an offence save after a fair hearing according to law).

It is not necessary to demonstrate that an accused would not have a fair trial. It is sufficient if there is a real risk of prejudice if the trial were to continue.

Courts must assume that the jury, properly instructed, will accept and obey the directions of the trial judge to decide the case solely on the evidence placed before it during the trial [20].

The test of necessity was stated recently by the New South Wales Court of Criminal Appeal in R v Crowther-Wilkinson (2004) NSWCCA 249 as, 'requiring there be a high degree of need in order to avoid a miscarriage of justice before a discharge would be ordered'Wood CJ in Crowther-Wilkinson, in a portion of the judgment set out in Elomar, held that sufficient directions can usually be given to overcome the problem since it has been recognised that jurors can be trusted to obey the directions that they are given.


Definition of Child Pornography. Sections 91H(1) and 91H(3) Crimes Act 1900


DPP v Annetts [2009] NSWCCA 86, 3 March 2009 at [10]-[12]

The respondent was convicted in the Local Court of an offence against s 91H(3) Crimes Act 1900. That section provides that it is an offence for a person to have "child pornography in his or her possession". Section 91H(1) provides a definition of "child pornography" in the following terms:

Section 91H:

Child pornography means material that depicts or describes, in a manner that would in all the circumstances cause offence to reasonable persons, a person who is (or appears to be) a child:

(a) engaged in sexual activity, or

(b) in a sexual context, or

(c) as the victim of torture, cruelty or physical abuse (whether or not in a sexual context).

The respondent successfully appealed his conviction to the District Court, following which the Director of Public Prosecutions required a case to be stated for determination by the Court of Criminal Appeal as follows:

"Did the magistrate err in law in concluding that the manner and circumstances in which the images in question were recorded, including the secretive nature of the filming and the concentration of the camera, in part, on the genitalia of the young persons filmed, was not relevant to whether the images depict a person, under the age of 16 'sin a sexual context's, pursuant to the definition of child pornography contained in s 91H(1) of the Crimes Act (NSW) 1900?"

The essential issue raised by the stated case was whether, when the "material" in issue is a video film, the motivation of the person making the film and the circumstances in which it was made, other than the circumstances revealed by the film itself, are relevant to the question of whether or not the images contained in the "material" are "child pornography" as defined.

The film in question contained images of young boys secretly filmed undressing in swimming pool change rooms with a concentration on the genitalia.

McClellan CJ at CL (with whom Simpson and Howie JJ agreed) stated:

'[10] In my opinion, his Honour was correct to determine that the question which the definition in s 91H raises is objective and is to be answered by considering the content of the material about which complaint has been made. The fact that the images were secretly recorded is not relevant to whether or not the material is child pornography. Furthermore, the reasons which motivated the photographer are not relevant. These matters may inform an understanding of the context in which the film was made but are not relevant to an understanding of whether or not the video depicts boys in a 'sexual context'. That question must be answered after considering the content of the film itself'.

The answer to the stated case was held to be, 'Yes, in part'The matter was remitted to the District Court.


Act of Indecency. Section 61N(1) Crimes Act 1900


DPP v Eades [2009] NSWSC 1352, James J

The DPP appealed against the order of a magistrate dismissing a charge against the defendant under s 61N(1) of the Crimes Act 1900 of inciting a person under the age of 16 years to an act of indecency towards the defendant. The person allegedly incited was a girl aged 13 years. The act of indecency allegedly incited was for the complainant to send to the defendant, by means of a mobile telephone, a photograph of herself in the nude.

This followed an exchange of text messages between the two containing 'sexual overtones'The photos did not disclose a clear sexual component.

His Honour made a declaration that the magistrate erred in law in failing to consider the surrounding circumstances, including the sexual nature of the text messages, the intention and purpose of the defendant and the ages of the complainant and the defendant in determining whether the act of sending the nude photograph was an act of indecency. His Honour also found that to incite act of indecency 'towards'does not need to be done in the presence, either physical or audible, of person inciting. He applied Chonka [2000] NSW CCA 466 at [75] per Smart AJ, ie the relevant act is the act incited not the act actually done, although in this case the act done was identical to the act incited.


Longman. Section 165 Evidence Act 1995


TJ [2009] NSWCCA 257, 21 October 2009

This case considered whether the Longman direction should be framed as a 'warning'.

The Longman direction is to the effect that the jury should be told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy.

McCallum J, Hidden J agreeing, concluded that the direction must be framed as a warning but did not need to include the term 'warning''I therefore caution you', could be sufficient as a warning in the circumstances of the case.

The amendments to the Evidence Act 1995 had not come into effect at the time of the trial.


Different pathways to determining lack of consent. Sections61Iand 61R(2)(a) Crimes Act 1900


Bochkov [2009] NSWCCA 166

The Crown case based absence of consent on either proof the complainant did not in fact consent or that she consented under a mistaken belief as to the identity of the other person. The relevant legislation was 61R regarding consent. Section 61R has since been repealed but similar provision is now made by s 61HA Crimes Act 1900. The Court concluded on appeal that the Crown did not have to rely upon one or the other basis and the jury did not have to be unanimous as to the basis for lack of consent. At [86] per Giles JA, with whom Buddin and Harrison JJ agreed:

'The relevant element in the offence expressed in s 61I is that the sexual intercourse is had without the consent of the complainant. Absence of consent may be proved by proof that the complainant in fact did not consent, or by reason of s 61R(2)(a) by proof that the complainant consented under a mistaken belief as to the identity of the other person. These were means of proof, not elements of the offence, and the indictment was validly framed. Appropriately, the alternative scenarios were then matters of particulars'.

 

 

 

ACKNOWLEDGEMENTS

Many thanks to Jennifer Wheeler and Prita Supomo for their great help as legal researchers.
Thanks also to Moyra West for her tireless efforts as editor and typist.


 

SOURCES

Australian Law Reform Commission Report 102
Uniform Evidence Law, Stephen Odgers
Evidence Amendment Act 2007
Evidence Act 1995 (NSW)
'Proposed Changes to Evidence Act Paper' by Peter Zahra and Jennifer Wheeler 20 May 2006

Helen Cox
Public Defender
12 March 2010