The meaning of unavailable

Section 65 of the Evidence Act 2008 provides exceptions to the general prohibition on hearsay evidence.

In shorthand, these are:

- Duty (made under a duty to make that representation or to make representations of that kind); or

- Res Gestae (made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication); or

- Reliable (was made in circumstances that make it highly probable that the representation is reliable); or

- Against You (against the interests of the person who made it at the time it was made AND made in circumstances that make it likely that the representation is reliable).

For those who survived their studies through the use of mnemonics, it may be worth pointing out that the summary above spells out the acronym DR GRAY. I admit this is not as elegant as VOID (or accurate - I'm sure some readers will already have noted the differences between traditional common law res gestae and paragraph (b)). I'm fairly sure that the drafters of s 84 deliberately worded the section that way to create the mnemonic.

An essential precondition to any of these avenues of potential admissibility is that the maker not be available (hearsay statements where the maker is available are dealt with at s 66). What constitutes unavailable is exhaustively defined at cl 4 of Part 2 of the Dictionary:

4 Unavailability of persons

(1) For the purposes of this Act, a person is taken not to be available to give evidence about a fact if—

(a) the person is dead; or

(b) the person is, for any reason other than the application of section 16 (Competence and compellability—judges and jurors), not competent to give the evidence about the fact; or

(c) it would be unlawful for the person to give evidence about the fact; or

(d) a provision of this Act prohibits the evidence being given; or

(e) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or to secure his or her attendance, but without success; or

(f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success.

(g) the person is mentally or physically unable to give evidence and it is not reasonably practicable to overcome that inability.

(2) In all other cases the person is taken to be available to give evidence about the fact.

Paragraph (g) is unique to the Victorian (not very) Uniform Evidence Act. In 2005 the Joint Discussion Paper recommended the inclusion of a provision like (g) and it was enacted in Victoria. The Commonwealth and NSW did not subsequently adopt it.

In Queensland, s 93B Evidence Act 1977 (Qld) provides an exception where a witness is unavailable because the person is ‘mentally or physically incapable of giving the evidence’. The Criminal Justice Act 2003 (UK) also has similar provisions.

Since (g) hasn't been taken up elsewhere, there's no body of UEA law on the scope of its operation. Is a medical certificate for the day of the contest sufficient to render a person, 'mentally or physically unable to give evidence,'? That seems demonstrably unfair to the other party. At the other end of the scale, where the witness lies in a coma with uncertain prospects of recovery, para (g) seems more likely to be satisfied (though unnecessary, since (f) would also seem to apply).

Evidence which is admissible is still open to be rejected in the exercise of one of the discretions. The reason why the witness is unavailable is only one part - sometimes an insignificant part - of whether the evidence will be admitted.

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177. Certificates of expert evidence

177. Certificates of expert evidence

(1) Evidence of a person's opinion may be adduced by tendering a certificate (expert certificate) signed by the person that-

(a) states the person's name and address; and

(b) states that the person has specialised knowledge based on his or her training, study or experience as specified in the certificate; and

(c) sets out an opinion that the person holds and that is expressed to be wholly or substantially based on that knowledge.

(2) Subsection (1) does not apply unless the party seeking to tender the expert certificate has served on each other party-

(a) a copy of the certificate; and

(b) a written notice stating that the party proposes to tender the certificate as evidence of the opinion.

(3) Service must be effected not later than-

(a) 21 days before the hearing; or

(b) if, on application by the party before or after service, the court substitutes a different period-the beginning of that period.

(4) Service for the purposes of subsection (2) may be proved by affidavit.

(5) A party on whom the documents referred to in subsection (2) are served may, by written notice served on the party proposing to tender the expert certificate, require the party to call the person who signed the certificate to give evidence.

(6) The expert certificate is not admissible as evidence if such a requirement is made.

(7) The court may make such order with respect to costs as it considers just against a party who has, without reasonable cause, required a party to call a person to give evidence under this section.

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144. Matters of common knowledge

144. Matters of common knowledge

(1) Proof is not required about knowledge that is not reasonably open to
question and is-

(a) common knowledge in the locality in which the proceeding is being held or generally; or

(b) capable of verification by reference to a document the authority of which cannot reasonably be questioned.

(2) The judge may acquire knowledge of that kind in any way the judge thinks fit.

(3) The court (including, if there is a jury, the jury) is to take knowledge of that kind into account.

(4) The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced.

Note that, due to the abolition of the common knowledge rule of expert evidence at s 80, experts may be the source of common knowledge evidence.

In DPP v Gramelis [2010] NSWSC 787 the operation of a car's gears were held to be a subject that could not readily be described as common knowledge. Failure of the magistrate to advert to their intention to take judicial notice led to procedural unfairness.

Price J [at 51]:

51 The requirements of s 144(4) are directed at ensuring that the parties are accorded procedural fairness where matters of common knowledge are to be acquired or taken into account. A judicial officer is obliged to give a party such opportunity to make submissions and to refer to relevant information as is necessary to ensure that the party is not unfairly prejudiced. Her Honour was required to raise with the prosecutor her intention to take judicial notice. Should she have done so, the prosecutor might have submitted that it would be inappropriate to take “judicial notice” of the speed of “average cars” travelling in second gear on the question of whether the defendant’s Isuzu truck was able to reach a speed in excess of 40 km/h on The Northern Road Luddenham under the prevailing conditions. The prosecutor might also have sought an adjournment to enable consideration to be given to calling expert evidence.

Perram J in Wentworth District Capital Ltd v Commissioner of Taxation [2010] FCA 862 held [at 2] that 'a map of New South Wales' would be included in the category of documents whose accuracy could not reasonably be questioned.

In Wing Cheong Li v R [2010] NSWCCA 40 the New South Wales Court of Criminal Appeal took judical notice of 'Target', a puzzle game published in a daily Sydney newspaper.

In R v Nguyen (Ruling No 1) [2010] VSC 438 Lasry J permitted the evidence of a Police Medical Officer about the effects of amphetamine, over objections from defence that, 'a jury did not need the assistance of an expert to inform them about something they would know from common sense: that a person who has taken a drug and has not slept may not be as alert as he would be had the two factors not been present'.

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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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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.

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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.

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