The Dangerous Art of Cross-examination

1. The Dangerous Art of Cross-examination Ian Barker QC

2. The Uniform Evidence Act in Practice– some recent and not so recent cases Alistair Wyvill SC

3. Documents - UEA Adducing evidence (chap.2)/ admission of evidence (UEA chap.3) s.69(1) and (2) (chap.3) If a document is or was a business record and it contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business,… 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 personwho had or might reasonably be supposed to have had personal knowledge of the asserted fact.

4. Documents (cont) s 1305 of the Corporations Act A book kept by a body corporate under a requirement of this Act is admissible in evidence in any proceeding and is prima facie evidence of any matter stated or recorded in the book. A document purporting to be a book kept by a body corporate is, unless the contrary is proved, taken to be a book kept as mentioned in subsection (1).

5. Documents (cont) s 1306 of the Corporations Act If: (a) because of this Act, a book that this Act requires to be kept or prepared is prima facie evidence of a matter; and (b) the book, or a part of the book, is kept or prepared by recording or storing matters (including that matter) by means of a mechanical, electronic or other device; a written reproduction of that matter as so recorded or stored is prima facie evidence of that matter. A writing that purports to reproduce a matter recorded or stored by means of a mechanical, electronic or other device is, unless the contrary is established, taken to be a reproduction of that matter.

6. Documents (cont) • National Australia Bank Ltd v Rusu(1999) 47 NSWLR 309 • Australian Securities and Investments Commission v Rich (2005) 191 FLR 385 • Australian Competition and Consumer Commission v Air New Zealand Ltd (2012) 207 FCR 448

7. Tendency and Coincidence Evidence: UEA ss.97, 98 • not “context” evidence nor evidence going purely to credit (part 3.7) or character (part 3.8) • admissibility easier to satisfy than at common law • always distinguish between the different bases for admission, i.e., between “tendency reasoning” and “coincidence reasoning” • reasonable notice required: remember E(NUL)R, reg 6 • in criminal proceedings, neither can be used unless probative value substantially outweighs any prejudicial effect: s.101

8. Tendency – s.97 • Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless… (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

9. Tendency – s.97 (cont.) • Semaan v R [2013] VSCA 134 • “significant probative value” • higher threshold of admissibility than “mere” probative value • “significant” is directed to the quality of the evidence rather than “quantity” • therefore the court must make a qualitative assessment (common law authorities assist) • Whether the lack of care and attention in driving at one point can be logically probative of lack of care and attention at another point must ultimately depend upon whether the two points are so closely related in time, distance and circumstance to allow the tribunal of fact to draw an inference that the manner of driving at the second point was of the same character as the manner of driving at the first point: R v Scott (2003) 141 A Crim Rep 323 at [11]

10. Tendency – s.97 (cont.) • Factors include (at [40]) • the number of occasions that the conduct displaying the alleged tendency have occurred • the temporal (and, perhaps, geographical) connection of such conduct with the charged conduct • the degree of similarity between the evidence of tendency and the charged conduct on the various occasions alleged (for example, its distinctiveness, such as showing a particular pattern or modus operandi) • whether the circumstances of occurrence of the conduct and charged conduct are similar.

11. Coincidence - s.98 Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless… (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

12. Coincidence - s.98 (cont) R v Gale (2012) 217 A Crim R 487 (NSWCCA) per Simpson J at [31] • the first step is to identify the “particular act of a person” or the “particular state of mind of a person” that the party tendering the evidence seeks to prove • the second step is to identify the “two or more events” from the occurrence of which the party tendering the evidence seeks to prove that the person in question did the “particular act” or had the “particular state of mind” • the third step is to identify the “similarities in the events” and/or the “similarities in the circumstances in which the events occurred” by reason of which the party tendering the evidence asserts the improbability of coincidental occurrence of the events

13. Coincidence - s.98 (cont) • the fourth step is to determine whether “reasonable notice” has been given of the intention to adduce the evidence (or, if reasonable notice has not been given, whether a direction under s 100(2) ought to be given, dispensing with the requirement) • the fifth step is to make an evaluation whether the evidence will, either by itself or in conjunction with other evidence already given or anticipated, “have significant probative value” • in a criminal proceeding, if it is determined that the evidence would have “significant probative value”, the sixth step is the determination whether the probative value of the evidence “substantially outweighs” any prejudicial effect it may have on the defendant (s 101(2)). The sixth step necessarily involves some analysis both of the probative value of the evidence in question and any prejudicial effect it might have: R v RN [2005] NSWCCA 413, and a balancing of the two.

14. Coincidence - s.98 (cont) Simpson J at [48]-[49] • Duckworth was present when the Nimbin event occurred; • the Nimbin event involved licensed premises; • the Nimbin event occurred at a time when the licensed premises were closed; • Duckworth was involved in the Park Ridge Tavern robbery; • Gale was involved in the Park Ridge Tavern robbery; • the Park Ridge Tavern event was a robbery of licensed premises; • the Park Ridge Tavern robbery was committed when the premises were closed; • the Park Ridge Tavern robbery was committed with the connivance of the manager;

15. Coincidence - s.98 (cont) • taken together, and in conjunction with the circumstantial evidence (especially the evidence of telephone calls between Duckworth and Gale on the day of the Nimbin event) the similarities render it improbable that the Nimbin event occurred coincidentally to the Park Ridge Tavern event; rather, it is probable that the common elements provide the basis for an inference that both Duckworth and Gale were criminally involved in the Nimbin event. “In those circumstances, it is my opinion that the evidence is capable of having significant probative value (s 98). Section 101 raises a more difficult issue. Plainly, the coincidence evidence has substantial probative value. But it is also highly prejudicial. I am unable to conclude that the probative value substantially outweighs the potential prejudice.”

16. Questions