135. General discretion to exclude evidence

135. General discretion to exclude evidence

The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might-

(a) be unfairly prejudicial to a party; or

(b) be misleading or confusing; or

(c) cause or result in undue waste of time.

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114. Exclusion of visual identification evidence

114. Exclusion of visual identification evidence

(1) In this section, visual identification evidence means identification evidence relating to an identification based wholly or partly on what a person saw but does not include picture identification evidence.

(2) Visual identification evidence adduced by the prosecutor is not admissible unless-

(a) an identification parade that included the defendant was held before the identification was made; or

(b) it would not have been reasonable to have held such a parade; or

(c) the defendant refused to take part in such a parade-

and the identification was made without the person who made it having been intentionally influenced to identify the defendant.

(3) Without limiting the matters that may be taken into account by the court in determining whether it was reasonable to hold an identification parade, it is to take into account-

(a) the kind of offence, and the gravity of the offence, concerned; and

(b) the importance of the evidence; and

(c) the practicality of holding an identification parade having regard, among other things-

(i) if the defendant failed to cooperate in the conduct of the parade-to the manner and extent of, and the reason (if any) for, the failure; and

(ii) in any case-to whether the identification was made at or about the time of the commission of the offence; and

(d) the appropriateness of holding an identification parade having regard, among other things, to the relationship (if any) between the defendant and the person who made the identification.

(4) It is presumed that it would not have been reasonable to have held an identification parade if it would have been unfair to the defendant for such a parade to have been held.

(5) If-

(a) the defendant refused to take part in an identification parade unless an Australian legal practitioner or legal counsel acting for the defendant, or another person chosen by the defendant, was present while it was being held; and

(b) there were, at the time when the parade was to have been conducted, reasonable grounds to believe that it was not reasonably practicable for such an Australian legal practitioner or legal counsel or person to be present-

it is presumed that it would not have been reasonable to have held an identification parade at that time.

(6) In determining whether it was reasonable to have held an identification parade, the court is not to take into account the availability of pictures or photographs that could be used in making identifications.

The Victorian Court of Appeal first considered the operation of these identification provisions in THD v The Queen [2010] VSCA 115.

The common law preference for identification parades as the fairest and least unreliable form of identification is retained. An accused can't be made to participate against their will and the refusal to participate can't be used by the prosecution for any other purpose but to explain why a lesser form of identification was used.

If an identification parade isn't done, s.114(2) provides that other forms of visual identification evidence will be inadmissible. The principal exceptions are (b) if it would not have been reasonable to hold a parade; or (c) the defendant refused to take part in such a parade. A series of non-exhaustive considerations are also included at (3).

Unlike Commonwealth legislation, there's no requirements for the conduct of identification parades in Victorian law and no requirement that they (or the refusal to participate in one) is recorded. If a parade was to be conducted unfairly, the general discretions to reject evidence at s. 135, s.138 and s.165(b) still apply.

For the purposes of s.114(2) it might be argued that it will not be reasonable to conduct an identification parade - a justification for admitting other evidence where one has not been conducted - where the witness would have recognised the suspect: DPP v Donald [199] NSWSC 949.

Evidence that goes to the identity of an offender is not, for that reason alone, evidence of identification: Bradshaw v State of Tasmania [2009] TASSC 39.

In R v Festa (2001) 208 CLR 593 , McHugh J drew a distinction between identification and mere similarity evidence, and suggested that warnings were not necessary for the latter. While this would appear to fit under the definition of identification evidence (discussed below) evidence of resemblance or similarity has been held not to be this kind of evidence - Dunford J [at 18]:

18 Although evidence which is not a positive identification, such as evidence that someone looked “similar to” or “like” the offender is not, standing by itself, sufficient to satisfy a jury of the identity of the offender beyond reasonable doubt: Pitkin v The Queen (1995) 69 ALJR 612, that does not mean that evidence of the general appearance or characteristics of an accused as similar to that of the person who committed the crime, sometimes referred to as “circumstantial identification evidence”, is not inadmissible, being proof of a circumstance usually, but not always, weak which with other evidence may point to the accused as the person who committed the crime: Festa v The Queen (2001) 208 CLR 593 at [56].

Recognition evidence

In R v Spero (2006) 13 VR 225, the Court of Appeal drew together earlier decisions (Davies & Cody v The King (1937) 57 CLR 170; R v Marijancevic (1993) A Crim R 272; The Queen v Lovett [2006] VSCA 5) that distinguish identification and recognition evidence. Where a person is well known to the witness the common law wariness that usually attaches to identification evidence does not apply. However, the definition of identification evidence provided in the Evidence Act 2008 suggests both identification and recognition evidence should be treated in the same way. Spigelman CJ in Trudgett v R [2008] NSWCCA 62 noted a literal approach could produce "absurd" consequences, and that the reliability of the evidence would turn upon the particular facts of the case, not its category..

Identification evidence

The definition of identification evidence is provided in the Dictionary.

Identification evidence does not include the production of a computer-generated or "artist's impression" of an offender, as such a product does not assert a resemblance to the accused (that will be a question for the jury: R v Kirby [2000] NSWCCA 330 [at 46]).

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32. Attempts to revive memory in court

32. Attempts to revive memory in court

(1) A witness must not, in the course of giving evidence, use a document to try to revive his or her memory about a fact or opinion unless the court gives leave.

(2) Without limiting the matters that the court may take into account in deciding whether to give leave, it is to take into account-

(a) whether the witness will be able to recall the fact or opinion adequately without using the document; and

(b) whether so much of the document as the witness proposes to use is, or is a copy of, a document that-

(i) was written or made by the witness when the events recorded in it were fresh in his or her memory; or

(ii) was, at such a time, found by the witness to be accurate.

(3) If a witness has, while giving evidence, used a document to try to evive his or her memory about a fact or opinion, the witness may, with the leave of the court, read aloud, as part of his or her evidence, so much of the document as relates to that fact or opinion.

(4) The court is, on the request of a party, to give such directions as the court thinks fit to ensure that so much of the document as relates to the proceeding is produced to that party.

Kaye J considered the operation of s 32(3) in the trial of DPP v Curran (Ruling No 2) [2011] VSC 250. While s 192 gives general direction as to the exercise of discretion, the section itself is silent on the considerations a court should consider in whether to grant leave to allow a witness to read their statement aloud. Without deciding, Kaye J appeared to apply a test similar to s 135, that of overall fairness to the accused.

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55. Relevant evidence

55. Relevant evidence

(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

(2) In particular, evidence is not taken to be irrelevant only because it relates only to-

(a) the credibility of a witness; or

(b) the admissibility of other evidence; or

(c) a failure to adduce evidence.

Relevance is a preliminary threshold test: DPP v McRae [2010] VSC 114. Unlike other exclusionary rules in the Evidence Act, evidence which is not relevant is not admissible. This is so even though it may satisfy other statutory tests of admissibility.

What is a fact in issue will be determined by the trial judge. In R v Middendorp [2010] VSC 147, Byrne J said [at 17]:

17 This is a criminal trial. The accused by pleading not guilty raises the general issue. At common law an accused is incapable of admitting a fact. Pursuant to s 184 of the Evidence Act an accused may admit matters of fact, subject to certain conditions or agree facts pursuant to s 191. Under s 183 of the Criminal Procedure Act an accused may make an admission in response to a notice of pre-trial admissions given by the prosecution under s 182. None of these courses appears to have been taken in this case, so that all factual matters to be proved by the prosecution are technically facts in issue.

In R v Fieldman (Ruling No 1) [2010] VSC 257 the prior convictions of the deceased were held to be relevant, in that they may have motivated the deceased to flee from the accused with particular desperation. Kaye J held that the evidence was substantially more probative than prejudicial, and declined to exercise his discretion under s 135.

The High Court considered the NSW Evidence Act in Smith v The Queen (2001) 206 CLR 650 [at 654]:

In determining relevance, it is fundamentally important to identify what are the issues at the trial. On a criminal trial the ultimate issues will be expressed in terms of the elements of the offence with which the accused stands charged. They will, therefore, be issues about the facts which constitute those elements. Behind those ultimate issues there will often be many issues about facts relevant to facts in issue. In proceedings in which the Evidence Act 1995 (NSW) applies, as it did here, the question of relevance must be answered by applying Pt 3.1 of the Act and s 55 in particular. Thus, the question is whether the evidence, if it were accepted, could rationally affect (directly or indirectly) the assessment by the tribunal of fact, here the jury, of the probability of the existence of a fact in issue in the proceeding.

A consideration of relevance requires consideration of the process of reasoning by which the information could rationally affect the assessment of the probabilities. The word rationally is significant in this context. In order to establish relevance, it is necessary to point to a process of reasoning by which the information in question could affect the jury’s assessment of the probability of the existence of a fact in issue at the trial: Lasry J in DPP v Williams Ruling No 1) [2010] VSC 34 at 13, citing the High Court in Washer v Western Australia [2007] HCA 48.

Relevance is not reliant on reliability: Papakosmas v The Queen (1999) 196 CLR 297, McHugh at 321. The court may also make a finding of provisional relevancy if further evidence to be given will shed light on whether the evidence is truly relevant or not: s 57. Questions are not irrelevant simply because some potential answers may not rationally affect the probability of the existence of a fact in issue: Evans v The Queen (2007) ALJR 250 [at 157], though an irrelevant answer may be.

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1. Purpose

1. Purpose

The purpose of this Act is to make fresh provision for the law of evidence that is uniform with Commonwealth and New South Wales law.

Of course, while uniformity of legislation across the Australian jurisdictions is the ideal, there are differences (in some cases, significant ones) between the Evidence Act 1995 (Cth.), the Evidence Act 1995 (NSW), the Evidence Act 2001 (Tas) and the Evidence Act 2008 (Vic).

This is referred to in the preliminary paragraph to Chapter 1 of the Victorian act.

There has been debate over whether the UEA represents the codification of the existing law. In some places it replaces the existing common law in a way that reference to the previous law on the subject would be of little assistance. In other areas, it substantially enacts in legislation the existing common law on the subject (for example identification). The best view is probably that the UEA represents only a partial codification of the laws of evidence.

The High Court has warned against unwarranted efforts to try to interpret the UEA consistently with previous case law where the legislation appears intended to give rise to a quite different result. In a significant authority on the Evidence Act 1995 (NSW) the High Court said in Papakosmas v R (1999) 196 CLR 297:

Sections 135, 136 and 137 contain powers which are to be applied on a case by case basis because of considerations peculiar to the evidence in the particular case. It may be proper for appellate courts to develop guidelines for exercising the powers conferred by these sections so that certain classes of evidence are usually excluded or limited. But those sections confer no authority to emasculate provisions in the Act to make them conform with common law notions of relevance or admissibility. (McHugh J at 97, Gleeson CJ and Hayne, Gaudron and Kirby JJ agreeing on the general principle).

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