Public Defenders

Evidence Act - s165


A paper by Anthony Cook
Public Defender
June 2003

1. The focus of this paper is s165 of the Evidence Act. It is necessary that every advocate be familiar with the operation of this provision. It is also necessary that we be familiar with the situations in which can and cannot be properly invoked. Something which should be noted is, which came somewhat of a surprise to me recently, that the section has application in civil proceedings conducted without a jury. (See the case of Mok[2003] NSWSC 424 especially at paragraph 38, a decision by Sully J).

2. Accordingly, it is useful to look at the words of the section in order to determine the width of its application. It begins with a most general proposition:-

(1) This Section applies to evidence of a kind that may be unreliable, including the following kinds of evidence':

3. Ss1 then lists seven particular categories of evidence. It is, of course, not exhaustive and is as the introductory words indicate simply inclusive. Howie J in Stewart[2001] 52 NSWLR 301 took the view that the specific categories referred to in Ss1 generally include those kinds of evidence where at common law a warning would have been required. (See para 92). Howie J considered the meaning to be given to the expression 'evidence of a kind which maybe unreliable' and stated the following:-

'Where a matter which might adversely affect the reliability of evidence in the trial would readily be understood and appreciated by a jury because it falls within their general experience and understanding and where the court has no special knowledge about the matter or no reason to doubt that the jury will appropriately assess its weight, then the evidence is not of a kind which maybe unreliable and the section does not apply'. (para 98).

4. It is suggested that the view taken by Sully J is perhaps wrong. It may be observed that there is something a little odd in the tribunal of law relying on particular knowledge about the reliability of a piece of evidence imparting that particular knowledge to itself as the tribunal of fact in the same way that a trial judge would direct a jury in parallel circumstances.

5. The rationale for the provision can be divined from cases such as Reardon[2002]NSWCCA 20 pars 141-142). It may be shortly said that there are circumstances in which a judge has a greater insight into the potential unreliability of a witness than a jury. In those circumstances it is incumbent upon the judge, if s165 is properly invoked, to give the jury a caution as to the potential unreliability of the evidence and the reasons for that. In cases where the unreliability is plain then, the authority seem to indicate, that there is less need for a direction to the jury.

6. It should be noted that the position in relation to trials on indictment without a jury pursuant to s16 Criminal Procedure Act 1986 is somewhat different. That is because s17(3) of that Act requires that a judge sitting as the tribunal of fact in a trial on indictment must take into account any warning which is required to be given to a jury. This provision was considered by the High Court in the case of Fleming(1998) 197 CLR 250. The Court stated (at par 33 of the judgment):-

' The result is to require the recording and heeding of a warning, if one is called for in the particular case, and the given of effect to it in a real sense by stating reasons why, notwithstanding the warning or as a consequence of it, a particular verdict is reached. A mere recording or statement of it, without more, would amount to an empty incantation'.

7. It is suggested that as a rule of practice, for abundant caution, practitioners appearing in non-jury cases, including cases conducted by magistrates of summary offences, should seek warnings under s165 Evidence Act where appropriate. The decision of Sully J referred to above may be relied upon for such a request in its application to summary matters.

8. Alternatively if, on strict analysis, s165 has no proper application, then nonetheless it provides guidance for the manner in which particular categories of evidence should be approached.

9. Ss 2 of 165 opens with the following words:-

' If there is a jury and a party so requests, the judge is to:

It has been held by decisions in the Court of Criminal Appeal that a requirement to give a warning (and as corollary appellate intervention in the case of absence of a warning) only arises when a request is made. Failure to make a request in some circumstances may be fatal to any complaint on appeal that a direction was not given. [See eg Coe. [ 2002] NSWCCA 385 at par 64].

10. An illustration of the difficulties which can arise in circumstances where there has been no request, or adequate request within the terms of s165(2) is the case of Coe[2002] NSWCCA 385. This case concerned out of court assertions of identification by a witness which had been contradicted on oath by the stand witness. The out of court assertions had the status of evidence in the case. The judge directed the jury that the out of court assertions were evidence just as oral testimony in court was evidence. No complaint was made about that direction.

11. It was submitted on appeal that it was necessary to tell the jury about the shortcomings in the out of court assertions by the witness, including a fact that they were of a hearsay nature and potentially unreliable (para 59). In short what was being suggested was that the jury should have been given a warning because the evidence fell within the terms of s165(1)(a) of the Evidence Act, that is evidence to which part 3.2 of the Evidence Act applied. No application had been made at the trial for such a direction or warning. Accordingly the Court of Criminal Appeal held that no such warning was required. This gives a literal meaning to the words of the provision.

12. It is necessary that practitioners be aware that failure to seek such a warning maybe fatal to any later complaint to that no warning was given. Further, it is necessary that such reasons for such a warning being required in the given case be articulated precisely. (See also R v Clark[2001] 123 A Crim R 506).

13. In that case a witness had had an indemnity against prosecution. No application was made at trial for a warning pursuant to s165. The court held, again giving a literal interpretation to the provision, that no error arose from a failure to give the warning because no request was made. According the provision was not invoked. The court further held in that case that there was no error in the judge failing to give a general unreliability warning of his own motion.

14. As will be seen from s165(3) there will be cases when the judge need not comply with the requirement to give a warning. One does not get to this point until firstly the evidence falls within the scope of the provision and secondly there has been a properly articulated request for such a warning. In my view cases where ss(3) would properly arise would be fairly limited.

15. They will be confined to cases where the requirement to give a warning is neutralised by the fact that the fallibility of the evidence is so obvious that a jury could be taken to be aware of it in the absence of such a warning. Such cases may include ones where the addresses of both parties properly analyse all the circumstances giving rise to the unreliability of the witness. In particular, cases where the Crown concedes the matters going to unreliability may be ones where an exception could be made under ss(3).

16. It is suggested that the degree to which a Prosecutor relies upon a witness may be a ground for consideration of ss(3). In other words if the Crown Prosecutor concedes the unreliability of the witness this may be a factor going to the exercise of the judge's power to decline to give a warning. Conversely if a Prosecutor is seeking to bolster a particular witness then that would be a good reason to give such a warning.

17. It must be remembered that the purpose of the warning is to give a judicial imprimatur to the approach to the witness that the party is asserting. A mere recital of counsel's arguments is not sufficient. It is also important to note that the warning is not a communication of the judge's particular opinion about the reliability of the witness. In this regard, however, it is necessary for a judge to refrain from emphasising too much the fact that the warning is given as a matter of law as this may have the effect of undermining the effect of the warning and leading a jury to believe that it has been given simply as a matter of routine. (See in that regard Stewart at para 139).

18. For an example of a type of case where it was held that it would have been reasonable to refrain from giving a warning in the event that such a warning was prima facie called for, see R v Chan[2002] (131 A Crim R 66 at para 39). One of the reasons identified there was that if such a warning had been given then it would have to have been qualified by reference to matters which confirmed the reliability of the particular witness.

19. Regrettably the provision is not confined to, in a criminal matter, prosecution evidence which may be unreliable. S165(1)(b) relates to 'identification evidence'. However in the case of R v Rose[2002] 55 NSWLR 701 a majority in the Court of Criminal Appeal held that such a direction may properly be given in the case of identification evidence which tends to exculpate an accused person. That is, evidence of identity of a person other than the accused and hence not within s165(1)(b). This is based upon the literal terms of the provision. It does not differentiate between evidence lead by a Prosecutor and evidence lead by any other party.

20. However the Court of Criminal Appeal made it clear that such a warning is not necessarily mandatory and depends upon the circumstances of the given case. Plainly enough one of the relevant circumstances was that the evidence did not inculpate an accused person in a criminal trial. The court stated:

'In the case of evidence on a person other than the accused, and in circumstances where the evidence favours the accused, there would be good reason for the trial judge to temper the warning and information given to the jury in respect of that evidence'(Page 714).

21. A question sometimes arises as to the appropriateness of giving a warning when a co-accused gives evidence in a joint trial which is incriminating of an accused person. In such a case what at common law be called 'quite an accomplice warning' would be required. Under s165 of the Evidence Act (1)(d) would be engaged. In Jamieson(1992) 60A Crim R 68 Gleeson CJ stated that a distinction should be made between that part of a co-accused (accomplice) evidence which inculpate the accused and those parts which exculpate him/her.

22. If evidence given by the co-accused supports the accused then care should be taken to ensure that such a warning is not applicable to that evidence. In that regard see also Baker[2001] NSWCCA 151. In that case the warning as to the general unreliability of the 'accomplice' was given. The Court of Criminal Appeal ordered a new trial holding at such a general direction was inappropriate. The court held:

' In my view, his Honour should have explained that, to the extent of that Young's evidence tendered to support the evidence of the Appellant, it should be regarded as an ordinary witness and his evidence should be treated on its merits without there being a need for special warning'. (Par 34).

23. An illustration of the confusion that may arise concerning evidence which is exculpatory is the case of Nguyen[2002] NSWSC 125. In that case some witnesses identified the accused as being at the crime scene whilst others gave evidence that the accused were not there. O'Keefe J directed the jury as to potential unreliability of evidence of the 'identification' evidence of all the witnesses.

24. He later withdrew the direction insofar as it related to the 'negative identification'(that is the accused were not the offenders) because he was persuaded that such evidence was not 'identification evidence'.

25. Conversely with identification evidence, the requirement to warn is not obviated if the evidence does not come with definition of 'identification evidence' in s3 of the Act. For example a critical issue in a trial may be the identification of an object, such as a car. At common law a warning may be appropriate. ( R v Clout) (1995) 41 NSWLR312.

26. If such evidence may be unreliable, for example by reason of only being glimpsed by a witness, then a warning under s165(2) is called for, notwithstanding that such evidence is not within the types s165(1)(a)-(g). See R v Whalen[2003] NSWCCA 59. This is in accordance with the approach in Rose.

A P Cook
27 June 2003