Evidence Act 2008: Chapter 2

Welcome to the Evidence Act 2008

This blog was started back when the Evidence Act 2008 was nothing more than a gleam in Parliament's eye. It was an attempt to further understanding of some challenging new legislation when information about it was difficult to find.

Since then, many authors and luminaries have turned their minds to the complex issues the Act obliges Victorian lawyers to engage with. A blog devoted exclusively to this one piece of legislation isn't necessary, and is impossible for us to give the attention it deserves.

If you're looking for a more conventional blog posting on topical legal issues, have a look at Quis Custodiet Ipsos Custodes? by the same authors.

This site is no substitute for legal advice from an Australian lawyer. If you have a legal problem, it's great that you are doing a bit of research, but go consult a professional.

2010-04-13

JCV online test 3

The latest quiz from the Judicial College of Victoria tests understanding of applications to cross-examine under s 38 and also credibility evidence under the Evidence Act.

Cross-examining one's own witnesses isn't well-understood, perhaps because it breaks from a long line of judicial authority on hostile and adverse witnesses. In R v BDF [1999] NSWCCA 98, Dowd J observed:

[34] There is a considerable tendency for those familiar with the law before the Act, to find the procedure of s 38 of the Act somewhat difficult to adjust to. Section 38 of the Act is one of the most important provisions of the new Evidence Act. Although there appears to be something unjust about a witness who is cross-examined by the opposing party and then subject to cross-examination by the party calling the witness, this is clearly the intention of the Act. The unfavourable evidence which comes out may come out at any stage.

There's some commentary now posted here under s 38. It's mostly recycled from a QCIC post from last year, with passing reference to the first thorough application of s 38 in Victorian courts: DPP v McRae [2010] VSC 114. I hope to add more to this soon.

2009-07-05

54. Views to be evidence

54. Views to be evidence

The court (including, if there is a jury, the jury) may draw any reasonable inference from what it sees, hears or otherwise notices during a demonstration, experiment or inspection.

53. Views

53. Views

(1) A judge may, on application, order that a demonstration, experiment or inspection be held.

(2) A judge is not to make an order unless he or she is satisfied that-

(a) the parties will be given a reasonable opportunity to be present; and

(b) the judge and, if there is a jury, the jury will be present.

(3) Without limiting the matters that the judge may take into account in deciding whether to make an order, the judge is to take into account the following-

(a) whether the parties will be present;

(b) whether the demonstration, experiment or inspection will, in the court's opinion, assist the court in resolving issues of fact or understanding the evidence;

(c) the danger that the demonstration, experiment or inspection might be unfairly prejudicial, might be misleading or confusing or might cause or result in undue waste of time;

(d) in the case of a demonstration-the extent to which the demonstration will properly reproduce the conduct or event to be demonstrated;

(e) in the case of an inspection - the extent to which the place or thing to be inspected has materially altered.

(4) The court (including, if there is a jury, the jury) is not to conduct an experiment in the course of its deliberations.

(5) This section does not apply in relation to the inspection of an exhibit by the court or, if there is a jury, by the jury.

52. Adducing of other evidence not affected

52. Adducing of other evidence not affected

This Act (other than this Part) does not affect the operation of any Australian law or rule of practice so far as it permits evidence to be adduced in a way other than by witnesses giving evidence or documents being tendered in evidence.

In Bailiff v R [2011] ACTCA 7, Marshall J, Nield and Teague AJJ held that s 52 does not prevent the operation of R v Dashwood [1943] KB 1, a UK authority held to permit courts to act inquisitorially and receive evidence from any source when considering a criminal accused's fitness to plead. (In Bailiff, the conduct of the accused in the courtroom was held to give rise to a concerb as to his fitness to plead).

It would appear that the ambit of this provision is wider than s 8. This provision yields this Act to common law rules and practices as well as legislation.

51. Original document rule abolished

51. Original document rule abolished

The principles and rules of the common law that relate to the means of proving the contents of documents are abolished.

Note

Section 182 of the Commonwealth Act gives the provisions of Part 2.2 of the Commonwealth Act a wider application in relation to Commonwealth records and certain Commonwealth documents.

50. Proof of voluminous or complex documents

50. Proof of voluminous or complex documents

(1) The court may, on the application of a party, direct that the party may adduce evidence of the contents of 2 or more documents in question in the form of a summary if the court is satisfied that it would not otherwise be possible conveniently to examine the evidence because of the volume or complexity of the documents in question.

(2) The court may only make such a direction if the party seeking to adduce the evidence in the form of a summary has-

(a) served on each other party a copy of the summary that discloses the name and address of the person who prepared the summary; and

(b) given each other party a reasonable opportunity to examine or copy the documents in question.

(3) The opinion rule does not apply to evidence adduced in accordance with a direction under this section.

49. Documents in foreign countries

49. Documents in foreign countries

No paragraph of section 48(1) (other than paragraph (a)) applies to a document that is in a foreign country unless-

(a) the party who adduces evidence of the contents of the document in question has, not less than 28 days (or such other period as may be prescribed by the regulations or by rules of court) before the day on which the evidence is adduced, served on each other party a copy of the document proposed to be tendered; or

(b) the court directs that it is to apply.

Note

Section 182 of the Commonwealth Act gives section 49 of the Commonwealth Act a wider application in relation to Commonwealth records and certain Commonwealth documents.

48. Proof of contents of documents

48. Proof of contents of documents

(1) A party may adduce evidence of the contents of a document in question by tendering the document in question or by any one or more of the following methods-

(a) adducing evidence of an admission made by another party to the proceeding as to the contents of the document in question;

(b) tendering a document that-

(i) is or purports to be a copy of the document in question; and

(ii) has been produced, or purports to have been produced, by a device that reproduces the contents of documents;

(c) if the document in question is an article or thing by which words are recorded in such a way as to be capable of being reproduced as sound, or in which words are recorded in a code (including shorthand writing)-tendering a document that is or purports to be a transcript of the words;

(d) if the document in question is an article or thing on or in which information is stored in such a way that it cannot be used by the court unless a device is used to retrieve, produce or collate it - tendering a document that was or purports to have been produced by use of the device;

(e) tendering a document that-

(i) forms part of the records of or kept by a business(whether or not the business is still in existence); and

(ii) is or purports to be a copy of, or an extract from or a summary of, the document in question, or is or purports to be a copy of such an extract or summary;

(f) if the document in question is a public document-tendering a document that is or purports to be a copy of the document in question and that is or purports to have been printed-

(i) by a person authorised by or on behalf of the Government to print the document or by the Government Printer of the Commonwealth or by the government or official printer of another State or a Territory; or

(ii) by the authority of the Government or administration of the State, the Commonwealth, another State, a Territory or a foreign country; or

(iii) by authority of an Australian Parliament, a House of an Australian Parliament, a committee of such a House or a committee of an Australian Parliament.

(2) Subsection (1) applies to a document in question whether the document in question is available to the party or not.

(3) If the party adduces evidence of the contents of a document under subsection (1)(a), the evidence may only be used-

(a) in respect of the party's case against the other party who made the admission concerned; or

(b) in respect of the other party's case against the party who adduced the evidence in that way.

(4) A party may adduce evidence of the contents of a document in question that is not available to the party, or the existence and contents of which are not in issue in the proceeding, by-

(a) tendering a document that is a copy of, or an extract from or summary of, the document in question; or

(b) adducing from a witness evidence of the contents of the document in question.

Notes

1. Clause 5 of Part 2 of the Dictionary is about the availability of documents.

2. Section 182 of the Commonwealth Act gives section 48 of the Commonwealth Act a wider application in relation to Commonwealth records and certain Commonwealth documents.

Businesses are defined in Part 2 Clause 1 of the Dictionary.

47. Definitions

47. Definitions

(1) A reference in this Part to a document in question is a reference to a document as to the contents of which it is sought to adduce evidence.

(2) A reference in this Part to a copy of a document in question includes a reference to a document that is not an exact copy of the document in question but that is identical to the document in question in all relevant respects.

46. Leave to recall witnesses

46. Leave to recall witnesses

(1) The court may give leave to a party to recall a witness to give evidence about a matter raised by evidence adduced by another party, being a matter on which the witness was not cross-examined, if the evidence concerned has been admitted and-

(a) it contradicts evidence about the matter given by the witness in examination in chief; or

(b) the witness could have given evidence about the matter in examination-in-chief.

(2) A reference in this section to a matter raised by evidence adduced by another party includes a reference to an inference drawn from, or that the party intends to draw from, that evidence.

45. Production of documents

45. Production of documents

(1) This section applies if a party is cross-examining or has cross-examined a witness about-

(a) a prior inconsistent statement alleged to have been made by the witness that is recorded in a document; or

(b) a previous representation alleged to have been made by another person that is recorded in a document.

(2) If the court so orders or if another party so requires, the party must produce-

(a) the document; or

(b) such evidence of the contents of the document as is available to the party-

to the court or to that other party.

(3) The court may-

(a) examine a document or evidence that has been so produced; and

(b) give directions as to its use; and

(c) admit it even if it has not been tendered by a party.

(4) Subsection (3) does not permit the court to admit a document or evidence that is not admissible because of Chapter 3.

(5) The mere production of a document to a witness who is being cross-examined does not give rise to a requirement that the cross-examiner tender the document.

44. Previous representations of other persons

44. Previous representations of other persons

(1) Except as provided by this section, a cross-examiner must not question a witness about a previous representation alleged to have been made by a person other than the witness.

(2) A cross-examiner may question a witness about the representation and its contents if-

(a) evidence of the representation has been admitted; or

(b) the court is satisfied that it will be admitted.

(3) If subsection (2) does not apply and the representation is contained in a document, the document may only be used to question a witness as follows-

(a) the document must be produced to the witness;

(b) if the document is a tape recording, or any other kind of document from which sounds are reproduced-the witness must be provided with the means (for example, headphones) to listen to the contents of the document without other persons present at the cross-examination hearing those contents;

(c) the witness must be asked whether, having examined (or heard) the contents of the document, the witness stands by the evidence that he or she has given;

(d) neither the cross-examiner nor the witness is to identify the document or disclose any of its contents.

(4) A document that is so used may be marked for dentification.

43. Prior inconsistent statements of witnesses

43. Prior inconsistent statements of witnesses

(1) A witness may be cross-examined about a prior inconsistent statement alleged to have been made by the witness whether or not-

(a) complete particulars of the statement have been given to the witness; or

(b) a document containing a record of the statement has been shown to the witness.

(2) If, in cross-examination, a witness does not admit that he or she has made a prior inconsistent statement, the cross-examiner is not to adduce evidence of the statement otherwise than from the witness unless, in the cross-examination, the cross-examiner-

(a) informed the witness of enough of the circumstances of the making of the statement to enable the witness to identify the statement; and

(b) drew the witness's attention to so much of the statement as is inconsistent with the witness's evidence.

(3) For the purpose of adducing evidence of the statement, a party may re-open the party's case.

42. Leading questions

42. Leading questions

(1) A party may put a leading question to a witness in cross-examination unless the court disallows the question or directs the witness not to answer it.

(2) Without limiting the matters that the court may take into account in deciding whether to disallow the question or give such a direction, it is to take into account the extent to which-

(a) evidence that has been given by the witness in examination in chief is unfavourable to the party who called the witness; and

(b) the witness has an interest consistent with an interest of the cross-examiner; and

(c) the witness is sympathetic to the party conducting the cross-examination, either generally or about a particular matter; and

(d) the witness's age, or any mental, intellectual or physical disability to which the witness is subject, may affect the witness's answers.

(3) The court is to disallow the question, or direct the witness not to answer it, if the court is satisfied that the facts concerned would be better ascertained if leading questions were not used.

(4) This section does not limit the court's power to control leading questions.

Note

Leading question is defined in the Dictionary.

41. Improper questions

41. Improper questions

(1) The court may disallow an improper question or improper questioning put to a witness in cross-examination, or inform the witness that it need not be answered.

(2) The court must disallow an improper question or improper questioning put to a vulnerable witness in cross-examination, or inform the witness that it need not be answered, unless the court is satisfied that, in all the relevant circumstances of the case, it is necessary for the question to be put.

(3) In this section, improper question or improper questioning means a question or a sequence of questions put to a witness that-

(a) is misleading or confusing; or

(b) is unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive; or

(c) is put to the witness in a manner or tone that is belittling, insulting or otherwise inappropriate; or

(d) has no basis other than a stereotype (for example, a stereotype based on the witness's sex, race, culture, ethnicity, age or mental intellectual or physical disability).

(4) For the purposes of subsection (2) a witness is a vulnerable witness if the witness-

(a) is under the age of 18 years; or

(b) has a cognitive impairment or an intellectual disability; or

(c) is a witness whom the court considers to be vulnerable having regard to-

(i) any relevant condition or characteristic of the witness of which the court is, or is made aware, including age, education, ethnic and cultural background, gender, language background and skills, level of maturity and understanding and personality; and

(ii) any mental or physical disability of which the court is, or is made, aware and to which the witness is, or appears to be, subject; and

(iii) the context in which the question is put, including-

(A) the nature of the proceeding; and

(B) in a criminal proceeding-the nature of the offence to which the proceeding relates; and

(C) the relationship (if any) between the witness and any other party to the proceeding.

(5) A question is not an improper question merely because-

(a) the question challenges the truthfulness of the witness or the consistency or accuracy of any statement made by the witness; or

(b) the question requires the witness to discuss a subject that could be considered distasteful to, or private by, the witness.

(6) A party may object to a question put to a witness on the ground that it is an improper question.

(7) However, the duty imposed on the court by this section applies whether or not an objection is raised to a particular question.

(8) A failure by the court to disallow a question under this section, or to inform the witness that it need not be answered, does not affect the admissibility in evidence of any answer given by the witness in response to the question.

Notes

1. A person must not, without the express permission of a court, print or publish any question that the court has disallowed under this section - see section 195.

2. Section 41 differs from the Commonwealth Act and New South Wales Act.

40. Witness called in error

40. Witness called in error

A party is not to cross-examine a witness who has been called in error by another party and has not been questioned by that other party about a matter relevant to a question to be determined in the proceeding.

39. Limits on re-examination

39. Limits on re-examination

On re-examination-

(a) a witness may be questioned about matters arising out of evidence given by the witness in cross-examination; and

(b) other questions may not be put to the witness unless the court gives leave.

38. Unfavourable witnesses

38. Unfavourable witnesses

(1) A party who called a witness may, with the leave of the court, question
the witness, as though the party were cross-examining the witness, about-

(a) evidence given by the witness that is unfavourable to the party; or

(b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence; or

(c) whether the witness has, at any time, made a prior inconsistent statement.

(2) Questioning a witness under this section is taken to be cross-examination for the purposes of this Act (other than section 39).

(3) The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the
witness's credibility.

Note

The rules about admissibility of evidence relevant only to credibility are set out in Part 3.7.

(4) Questioning under this section is to take place before the other parties cross-examine the witness, unless the court otherwise directs.

(5) If the court so directs, the order in which the parties question the witness is to be as the court directs.

(6) Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account-

(a) whether the party gave notice at the earliest opportunity of the party's intention to seek leave; and

Note

Paragraph (a) differs from the Commonwealth Act and New South Wales Act.

(b) the matters on which, and the extent to which, the witness has been,
or is likely to be, questioned by another party.

(7) A party is subject to the same liability to be cross-examined under this section as any other witness if-

(a) a proceeding is being conducted in the name of the party by or on behalf of an insurer or other person; and

(b) the party is a witness in the proceeding.

R v Souleyman (1996) NSWRLR 712 established that unfavourable isn't the same as hostile or adverse, merely meaning "not favourable".(Though in R v Kneebone (1999) NSWLR 450, it was found that a witness's evidence was not necessarily unfavourable just for failing to accord with the Crown's case theory).

A claim of no recollection might be considered unfavourable: GAC [2007] NSWCCA 315, see also R v Lozano [1997] NSWSC 237. The application is usually made in examination-in-chief, but may be made in cross-examination: R v Pantoja [1998] NSWSC 565. Or it might be made in re-examination in exceptional circumstances: R v Kingswell [1998] NSWSC 412 and R v BDF [1999] NSWCCA 98.

In BDF, Dowd J observed:

[34] There is a considerable tendency for those familiar with the law before the Act, to find the procedure of s 38 of the Act somewhat difficult to adjust to. Section 38 of the Act is one of the most important provisions of the new Evidence Act. Although there appears to be something unjust about a witness who is cross-examined by the opposing party and then subject to cross-examination by the party calling the witness, this is clearly the intention of the Act. The unfavourable evidence which comes out may come out at any stage.

There's no requirement that the unfavourable evidence to be unexpected, and nothing improper about calling a witness to put to them a prior inconsistent statement (see the discussion of Lee's case, below). Once admitted, a prior inconsistent statment can be used by the trier of fact as the truth of it, even if it is a statement the witness now denies is truthful: Adam v The Queen (2001) 207 CLR 96 (a case where Stephen Odgers appeared for the appellant). The prosecution can call a witness intending or at least prepared to make a s 38 application. Despite sub-s (7), the cross-examination should be restricted to the extent of the unfavourable evidence: R v Hogan [2001] NSWCCA 292, also GAC.

The Victorian Supreme Court first encountered s 38 in its trial jurisdiction in DPP v McRae [2010] VSC 114. In that case, the Crown made application to cross-examine a number of witnesses it intended to call at trial. Curtain J applied NSW authorities in allowing this to occur, and declined to exercise discretion to reject their evidence in the exercise of judicial discretion under s 137, ruling that allowing the cross-examination would cause no unfair prejudice to the accused.

In DPP v Docking (Ruling No 1) [2010] VSC 408 the trial judge (Lasry J) determined an application to exclude prior inconsistent statements which had been put to unfavourable witnesses by the prosecutor after succesful applications for leave under s 38. It was common ground that, subject to the judge's discretion under s 136, the statements were admissible not just for assessing the credit of the witnesses but also of the evidence the statments contained: Papakosmas v R (1999) 196 CLR 297.

Counsel for the accused sought to have the evidence limited to credibility purposes, relying on the apparent illiteracy of one witness and a general refusal to adopt the statements as accurate. Lasry J declined to impose such a restriction on the jury's use of the evidence.

37. Leading questions

37. Leading questions

(1) A leading question must not be put to a witness in examination in chief or in re-examination unless-

(a) the court gives leave; or

(b) the question relates to a matter introductory to the witness's evidence; or

(c) no objection is made to the question and (leaving aside the party conducting the examination in chief or re-examination) each other party to the proceeding is represented by an Australian legal practitioner, legal counsel or prosecutor; or

(d) the question relates to a matter that is not in dispute; or

(e) if the witness has specialised knowledge based on the witness's training, study or experience-the question is asked for the purpose of obtaining the witness's opinion about a hypothetical statement of facts, being facts in respect of which evidence has been, or is intended to be, given.

(2) Unless the court otherwise directs, subsection (1) does not apply in civil proceedings to a question that relates to an investigation, inspection or report that the witness made in the course of carrying out public or official duties.

(3) Subsection (1) does not prevent a court from exercising power under rules of court to allow a written statement or report to be tendered or treated as evidence in chief of its maker.

Note

Leading question is defined in the Dictionary.

36. Person may be examined without subpoena or other process

36. Person may be examined without subpoena or other process

(1) The court may order a person who-

(a) is present at the hearing of a proceeding; and

(b) is compellable to give evidence in the proceeding-
to give evidence and to produce documents or things even if a subpoena or other process requiring the person to attend for that purpose has not been duly served on the person.

(2) A person so ordered to give evidence or to produce documents or things is subject to the same penalties and liabilities as if the person had been duly served with such a subpoena or other process.

(3) A party who inspects a document or thing produced to the court because of subsection (1) need not use the document in evidence.

See the previous discussion at s 35 about the effect of the Act on the common law principle of Walker v Walker.

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