THD v The Queen [2010] VSCA 115: a question of fact and degree

The Court of Appeal determined this interlocutory appeal under s 298 of the Criminal Procedure Act 2009 last week. The Crown agreed that its case depended on a photoboard identification.

THD v The Queen [2010] VSCA 115

Counsel took issue with the photoboard in three respects, unsuccessfully in the trial court and again on appeal. The conduct of the identification and the photoboard itself was considered to be fair.

It was held [by Maxwell P at 21] that generalised submissions about fairness were inappropriate, and that specific provisions in the Evidence Act should be invoked to resolve these issues.

24 The application for leave to appeal has proceeded on the basis that the judge was deciding a question arising under s 137, which provides for mandatory exclusion when the court comes to the conclusion identified in the section. No occasion arises on this application to consider how the balancing exercise in s 137 is to be undertaken – between probative value, on the one hand, and the ‘danger of unfair prejudice to the accused’ on the other. I simply wish to emphasise that, in the new Evidence Act environment, it is the responsibility of trial counsel – defence and prosecution – to do as the prosecutor sought to do here, namely, to identify for the trial judge the statutory question or questions to be addressed. This will ensure that the court, in deciding the evidentiary or other question, directs itself correctly.

Whether an appeal of a judge's ruling under s 137 of the Evidence Act 2008 is to be determined according to the principles of House v The King (1936) CLR 499 has yet to be decided. (For more on this, see my post over at the Criminal Procedure Act blog). Interestingly, Maxwell P did seem to think so (slightly at odds with PNJ v DPP [2010] VSCA 88) but decided it wasn't necessary to answer the question in this case. Nettle JA was more definite that the fair composition of a photoboard is 'a question of fact and degree' and so to be resolved on appeal using the principles in House, and Neave J agreed with them both.

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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.

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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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JCV online test 2

The Judicial College of Victoria released the second part of their online self-test yesterday.

There are ten questions to test your knowledge of relevance, opinion evidence and the discretions. Like the last part, you'll probably need to refer to the Evidence Act 2008 to complete it.

Good luck!

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194. Witnesses failing to attend proceedings

194. Witnesses failing to attend proceedings

(1) If, in a civil or criminal proceeding, a witness fails to appear when called and it is proved that the witness has been-

(a) bound over to appear; or

(b) duly bound by recognisance or undertaking to appear; or

(c) served with a summons or subpoena to attend and a reasonable sum of money has been provided to the witness for his or her costs in so attending-

the court may-

(d) issue a warrant to apprehend the witness and bring him or her before the court; or

(e) order the witness to pay a fine of not more than 5 penalty units; or

(f) take any other action against the witness that is permitted by law.

(2) If a subpoena or summons has been issued for the attendance of a witness on the hearing of a civil or criminal proceeding and it is proved, on application by the party seeking to compel his or her attendance, that the witness-

(a) is avoiding service of the subpoena or summons; or

(b) has been duly served with the subpoena or summons but is unlikely to
comply with it-

the court may issue a warrant to apprehend the witness and bring the witness before the court.

(3) In issuing a warrant under this section, the court may endorse the warrant with a direction that the person must, on arrest, be released on bail as specified in the endorsement.

(4) An endorsement under subsection (3) must fix the amounts in which the principal and the sureties (if any) are bound and the amount of any money or the value of any security to be deposited.

(5) The person to whom the warrant to arrest is directed must cause the person named or described in the warrant when arrested-

(a) to be released on bail in accordance with any endorsement on the warrant; or

(b) if there is no endorsement on the warrant, to be brought before the court which issued the warrant; or

(c) to be discharged from custody on bail in accordance with the Bail Act 1977.

(6) Matters may be proved under this section orally or by affidavit.

(7) A witness, who under subsection (1)(e) has been ordered to pay a fine, is not exempted from any other proceedings for disobeying the subpoena or summons.

Note

This section differs from the New South Wales Act. The Commonwealth Act does not include an equivalent provision to section 194. There are provisions to the same effect in federal court rules and Australian Capital Territory legislation applying to proceedings before federal courts and Australian Capital Territory courts.

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

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

(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.

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108. Exception - re-establishing credibility

108. Exception - re-establishing credibility

(1) The credibility rule does not apply to evidence adduced in re- xamination of a witness.

(2) * * * * *

Note

The Commonwealth Act includes a subsection referring to section 105 of that Act.

(3) The credibility rule does not apply to evidence of a prior consistent statement of a witness if-

(a) evidence of a prior inconsistent statement of the witness has been admitted; or

(b) it is or will be suggested (either expressly or by implication) that evidence given by the witness has been fabricated or re-constructed (whether deliberately or otherwise) or is the result of a suggestion-

and the court gives leave to adduce the evidence of the prior consistent statement.

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103. Exception - cross-examination as to credibility

103. Exception - cross-examination as to credibility

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

(2) Without limiting the matters to which the court may have regard for 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.

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

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

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.

Admission is defined in Part 1 of the Dictionary.

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79. Exception - opinions based on specialised knowledge

79. Exception - opinions based on specialised knowledge

(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.

In R v Nguyen (Ruling No 1) [2010] VSCA 438, Lasry J ruled that evidence about the effects of the use of amphetamine over a sustained period from Police Medial Officer, Dr Morris Odell, was relevant and admissible specialised knowledge. The submission that the opinion was general and did not relate specifically to the accused (who the witness had not examined) was rejected.

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69. Exception - business records

69. Exception - business records

(1) This section applies to a document that-

(a) either-

(i) is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business; or

(ii) at any time was or formed part of such a record; and

(b) contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business.

(2) The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made-

(a) by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact; or

(b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.

(3) Subsection (2) does not apply if the representation-

(a) was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding; or

(b) was made in connection with an investigation relating or leading to a criminal proceeding.

(4) If-

(a) the occurrence of an event of a particular kind is in question; and

(b) in the course of a business, a system has been followed of making and keeping a record of the occurrence of all events of that kind-

the hearsay rule does not apply to evidence that tends to prove that there is no record kept, in accordance with that system, of the occurrence of the event.

(5) For the purposes of this section, a person is taken to have had personal knowledge of a fact if the person's knowledge of the fact was or might reasonably be supposed to have been based on what the person saw, heard or otherwise perceived (other than a previous representation made by a person about the fact).

Note

1. Sections 48, 49, 50, 146, 147 and 150(1) are relevant to the mode of proof, and authentication, of business records.

2. Section 182 of the Commonwealth Act gives section 69 of the Commonwealth Act a wider application in relation to Commonwealth records.

The Dictionary provides that an asserted fact is defined at sub-s 59(1).

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

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65. Exception-criminal proceedings if maker not available

65. Exception-criminal proceedings if maker not available

(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-

(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) 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.

(3) The hearsay rule does not apply to evidence of a previous representation made in the course of giving evidence in an Australian or overseas proceeding if, in that proceeding, the defendant in the proceeding to which this section is being applied-

a) examined the person who made the representation about it; or

(b) had a reasonable opportunity to cross-examine the person who made the representation about it.

Note

Section 67 imposes notice requirements relating to this subsection.

(4) If there is more than one defendant in the criminal proceeding, evidence of a previous representation that-

(a) is given in an Australian or overseas proceeding; and

(b) is admitted into evidence in the criminal proceeding because of
subsection (3)-

cannot be used against a defendant who did not cross-examine, and did not have a reasonable opportunity to cross-examine, the person about the
representation.

(5) For the purposes of subsections (3) and (4), a defendant is taken to have had a reasonable opportunity to cross-examine a person if the defendant was not present at a time when the cross-examination of a person might have been conducted but-

(a) could reasonably have been present at that time; and

(b) if present could have cross-examined the person

.

(6) Evidence of the making of a representation to which subsection (3) applies may be adduced by producing a transcript, or a recording, of the representation that is authenticated by-

(a) the person to whom, or the court or other body to which, the representation was made; or

(b) if applicable, the registrar or other proper officer of the court or other body to which the representation was made; or

(c) the person or body responsible for producing the transcript or recording.

(7) Without limiting subsection (2)(d), a representation is taken for the purposes of that subsection to be against the interests of the person who made it if it tends-

(a) to damage the person's reputation; or

(b) to show that the person has committed an offence for which the person has not been convicted; or

(c) to show that the person is liable in an action for damages.

(8) The hearsay rule does not apply to-

(a) evidence of a previous representation adduced by a defendant if the evidence is given by a person who saw, heard or otherwise perceived the representation being made; or

(b) a document tendered as evidence by a defendant so far as it contains a previous representation, or another representation to which it is reasonably necessary to refer in order to understand the representation.

Note

Section 67 imposes notice requirements relating to this subsection.

(9) If evidence of a previous representation about a matter has been adduced by a defendant and has been admitted, the hearsay rule does not apply to evidence of another representation about the matter that-

(a) is adduced by another party; and

(b) is given by a person who saw, heard or otherwise perceived the other representation being made.

Note

Clause 4 of Part 2 of the Dictionary is about the availability of persons.

The Dictionary provides that an asserted fact is defined at sub-s 59(1).

Evidence admissible under this section may nevertheless excluded in the exercise of discretion, notably s 137. In R v Suteski [2002] NSWCCA 509 it was held the trial judge properly admitted the record of interview of a co-accused who was not available to be called as a witness. The Court of Appeal held that the forensic disadvantages to the accused were appropriately considered and had not caused unfair prejudice. The recording was tendered with a transcript provided as an aide.

The Victorian Court of Appeal first considered an interlocutory appeal from the County Court in R v Darmody [2010] VSCA 41. The prosecutor sought and was granted leave by the trial judge to lead evidence from the committal hearing after the Crown witness refused to give evidence at trial, apparently under intimidation. The Court found that clause 4(1)(f) of Pt 2 of the Dictionary was satisfied in that,

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.

The appeal upheld the trial judge's decision to allow the evidence under s 65. The Court confirmed that discretion to exclude under s 137 existed but determined that, in this case, the probative value was not outweighed by the prejudicial effect.

In DPP v B B; DPP v Q N [2010] VSCA 211 the trial judge admitted a dead man's statement under s 65(3) but then rejected the evidence in exercise of discretion under s 137. The following reasons were given [related in the appeal, at 10]:

... the combination of effective inability to fully explore cross-examination because of pressure from the magistrate and lack of clarity as to the actual responses to cross-examination because of the difficulty raised by the interpreter, together with the inability of the jury to see the witness in my view, is properly to be characterised as unfair prejudice.

The Court of Appeal held these grounds were insufficient in the circumstances, either alone or in combination.

Bongiorno JA [at 16, Harper and Hansen JJA also agreeing]:

16 In enacting s 65(3) in the form it is, the legislature placed alternative primary conditions on its application. Those conditions require that the accused has either cross-examined the relevant witness in an earlier proceeding about the ‘previous representation’ of which hearsay evidence is sought to be adduced or he had a reasonable opportunity of doing so. The legislature clearly anticipated a situation where hearsay would be rendered admissible by s 65(3) even where there was, in fact, no cross-examination at a previous proceeding of the relevant witness ...

17 Section 65(3) is not the first Victorian statutory provision which permitted prior depositions to be tendered as evidence at trial. Section 55AB of the Evidence Act 1958, which has since been repealed, provided for the use of depositions taken at committal in a subsequent trial where a witness was unavailable. The conditions for use of such a deposition against an accused under that provision were that the accused must have been present when the deposition was taken and he (or his lawyer) must have had a full opportunity of cross-examining the witness. This section, in substance, if not in form, can be traced back, at least, to the Justices Act 1890 in this State and appears to have had its origin in the Indictable Offences Act 1848 (UK) (Jervis’s Act), the first English provision which introduced the statutory exception to the hearsay rule rendering a deposition admissible at trial if a witness was unavailable for certain specific reasons set out in the statute. It could be argued that the substitution of the word ‘reasonable’ in the current Evidence Act for the word ‘full’ in earlier legislation compels a conclusion that the legislature intended the qualifying condition for admissibility to be now less onerous than it was before.

In a judicial review of the dismissal of charges from the Magistrates' Court, the Supreme Court ruled that the magistrate had wrongly refused to admit evidence under >section 65 (as an exception to the hearsay rule) after a complainant had sucessfully objected under section 18 to giving evidence against her de facto partner: DPP v Nicholls [2010] VSC 397.

In the similar case of DPP v Easwaralingam & Anor [2010] VSC 437 the Supreme Court declined to provide a blanket statement of what might comprise reasonable notice under s 67. The prosecution's principal witness was hospitalised shortly before the hearing. On judicial review, the Court ruled the magistrate had gone about the process of declining the adjournment and refusing to admit the witness's statement under s 65.

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64. Exception - civil proceedings if maker available

64. Exception - civil proceedings if maker available

(1) This section applies in a civil proceeding if a person who made a previous representation is available to give evidence about an asserted fact.

(2) The hearsay rule does not apply to-

(a) evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made; or

(b) a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation-

if it would cause undue expense or undue delay, or would not be reasonably practicable, to call the person who made the representation to give evidence.

Note

Section 67 imposes notice requirements relating to this subsection.

Section 68 is about objections to notices that relate to this subsection.

(3) If the person who made the representation has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by-

(a) that person; or

(b) a person who saw, heard or otherwise perceived the representation being made.

(4) A document containing a representation to which subsection (3) applies must not be tendered before the conclusion of the examination in chief of the person who made the representation, unless the court gives leave.

Note

Clause 4 of Part 2 of the Dictionary is about the availability of persons.

The Dictionary provides that an asserted fact is defined at sub-s 59(1).

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62. Restriction to "first-hand" hearsay

62. Restriction to "first-hand" hearsay

(1) A reference in this Division (other than in subsection (2)) to a previous representation is a reference to a previous representation that was made by a person who had personal knowledge of an asserted fact.

(2) A person has personal knowledge of the asserted fact if his or her knowledge of the fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact.

(3) For the purposes of section 66A, a person has personal knowledge of the asserted fact if it is a fact about the person's health, feelings, sensations, intention, knowledge or state of mind at the time the presentation referred to in that section was made.

The Dictionary provides that an asserted fact is defined at sub-s 59(1).

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61. Exceptions to the hearsay rule dependant on competency

61. Exceptions to the hearsay rule dependant on competency

(1) This Part does not enable use of a previous representation to prove the existence of an asserted fact if, when the representation was made, the person who made it was not competent to give evidence about the fact because of section 13(1).

(2) This section does not apply to a contemporaneous representation made by a person about his or her health, feelings, sensations, intention, knowledge or state of mind.

Note

For the admissibility of such contemporaneous representations, see section 66A.

(3) For the purposes of this section, it is presumed, unless the contrary is proved, that when the representation was made the person who made it was competent to give evidence about the asserted fact.

The Dictionary provides that an asserted fact is defined at sub-s 59(1).

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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.

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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.

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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.

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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.

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