Review of the Evidence Act 1958 (Vic) and
Review of the Role and Appointment of Public Notaries

Chapter Three - Admissibility of Evidence

This Chapter of the Act sets out the rules of admissibility for evidence. At the moment, this part of the law of evidence consists of a complicated patchwork of common law and statutory rules. By virtue of s 56(1), this part of the Act brings about a comprehensive codification of the rules of admissibility. The Committee is satisfied that the Chapter as a whole creates a logical framework for the consideration of questions of admissibility; that the individual rules are, in the main, well-drafted; and that the reforms brought about by the Chapter are generally desirable.

3.1 RELEVANCE

No submissions were received about this Part of the Act, which appears to re-state the common law requirements of relevance in a clear and acceptable manner.

3.2 HEARSAY

Of all of the changes to the existing law brought about by the Act, the changes to the hearsay rule are probably the most radical. In Myers v DPP Lord Reid described the hearsay rule as "absurdly technical", and so complex that "It is difficult to make any general statement about the law of hearsay evidence which is entirely accurate".[98] The 30 years since that statement was made have, if anything, seen the rule become even more complex. It is not only that the definition of hearsay is difficult to apply; the exceptions to the rule, both common law and statutory, are often unclear and frequently illogical. The Committee therefore endorses the aim of comprehensively reforming the hearsay rule and its exceptions and recommends the adoption of this Part of the Act without amendment.

RECOMMENDATION 13

The Committee recommends that Part 3.2 ("Hearsay") of the Evidence Act 1995 (Cth) be adopted.

Unless an exception is available, the hearsay rule prevents an assertion made out of court from being offered as evidence of the truth of that assertion. The primary justification for the exclusion of such evidence is that the person who made the assertion can not be subjected to cross-examination. This means that the tribunal of fact may be unable to satisfy itself that the person was neither mistaken nor insincere when he or she made the assertion. Although the rationale of the rule is the exclusion of unreliable evidence, the rule also leads to the exclusion of evidence which appears to be perfectly reliable. Part of the problem lies in the very wide definition of hearsay, and in particular in the extension of the rule to what lawyers refer to as `implied assertions'. Accordingly, the first fundamental reform brought about by the Act is to narrow the scope of the rule. The hearsay rule is stated in s 59(1) of the Act in the following way:-

"Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation". [99]

The key word in this definition is the word `intended'. This is designed to exclude implied assertions from the scope of the rule. The exclusion of implied assertions from the scope of the rule is a sensible reform which should lead to the admission of some reliable evidence which would currently be excluded and also make the hearsay rule far easier to apply in practice.

Some concerns were raised, however, about the meaning of s 61 of the Act. This section provides that:-

"(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 he or she was incapable of giving a rational reply to a question about the fact.

(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.

(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".[100]

The Criminal Law Division of Victoria Legal Aid raised questions about the meaning of the phrase "rational reply" in s 61(1), and in particular about whether it was intended to only cover cases of insanity; and about whether the word "knowledge" in s 61(2) includes "observations".[101] In the Committee's view, the phrase `rational reply' does include cases of insanity but is not limited to insanity and would, for example, also cover situations such as representations made by a person in their sleep. In relation to s 61(2), the Committee's view is that `knowledge' does not include `observations'. In the Committee's view, this part of s 61(2) is directed to those situations where the previous representation is being used to prove the fact that the person making the representation `knew' something, and not to those situations where the previous representation is being used to prove the truth of what the person said they knew. In other words, it is concerned with the speaker's state of mind.

In its submission, the Victorian Government Solicitor quoted a passage from Heydon's commentary on the Act which points out that the effect of s 61(2) is that "though a person is incompetent to give sworn or affirmed testimony about that person's health because of an incapacity to give rational replies to questions about it, hearsay evidence to the same effect is admissible".[102] The Committee confirms that this analysis is correct, and therefore concedes that arguably there is a case for the removal from s 61 of subsection (2). The Committee notes, however, that the apparent anomaly created by s 61(2) is one which already exists at common law. The admission of a person's contemporaneous representation about their health, feelings, sensations, intention, knowledge or state of mind have always been admissible at common law. This admission has never been subject to a requirement that the person be capable of making rational replies to questions about such matters. Such representations are also admissible under the Act as a result of s 72. Section 61(2) merely ensures that the Act does not impose an additional requirement of admissibility in comparison to the common law. In light of this, and in the overall interests of uniformity, the Committee recommends that s 61 be enacted in its present form.

RECOMMENDATION 14

The Committee recommends that section 61 ("Exception to the hearsay rule dependent on competency") of the Evidence Act 1995 (Cth) be adopted.

3.2.2 "First-hand" Hearsay

No submissions dealing with this Division were received by the Committee. In the Committee's view this reflects the fact that the Division is a sensible combination of restatement and reform of the common law. It should make the hearsay rule easier to apply in practice and is less likely to lead to the exclusion of evidence which should be admitted.

3.2.3 Other Exceptions to the Hearsay Rule

The only negative comment made about this Division of the Act was a comment by Judges Mullaly and Kelly that some of the exceptions contained in this Division may be unnecessary because the evidence admitted under them is not hearsay in any event.[103] While the Committee concedes that there may be some truth in this view, it does not consider this to be a matter of significance: whether evidence is admitted as non-hearsay or under an exception to the rule would not appear to matter, so long as it is admitted. Section 69 was also mentioned in that part of the submission from Arthur Robinson & Hedderwicks which dealt with the admissibility of reproduced documents.[104] As already noted, the submission's overall conclusion was that the provisions of the Act in relation to reproduced documents are superior to Victoria's current provisions.

3.3 OPINION

This Part of the Act deals with admission of opinion evidence, including the opinions of both lay and expert witnesses. It begins with an exclusionary rule, namely that `Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed'. The focus of the submissions, however, was on the exception to this rule for expert evidence, or - to use the language of the Act - `opinions based on specialised knowledge'. Section 79 states that:-

"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".[105]

The first issue raised in the submissions is whether s 79 abolishes the `basis' rule. There is some dispute as to whether a basis rule has yet been fully recognised by the courts; but if the rule does exist, then its effect is to render an expert's opinion inadmissible unless the basis for that opinion is proved.

As Ian Freckelton of the Victorian Bar - one of Australia's leading authorities on expert evidence - commented in his submission, in the absence of such a rule:-

"experts can function as unexposed conduits for the views and expressions of others and the validity of the data that forms the basis of their views never comes for meaningful consideration before the judge or jury".[106]

In its submission, the Victoria Police denied that s 79 abolished the `basis' rule. Their argument was that the basis rule exists at common law, and "there is nothing in the Commonwealth Act to expressly or impliedly abrogate the requirements of the common law".[107] This argument overlooks, however, the effect of s 56(1) of the Act, which provides that `Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding'. This means that the absence of a basis rule from the Act effectively brings about its abolition. This was certainly the view taken in the submissions made by Arthur Robinson & Hedderwicks[108] and Mr Ian Freckelton of the Victorian Bar.[109]

The question then arises as to whether the basis rule ought to be abolished. The main justification advanced for the abolition of the basis rule was its inflexibility.[110] It was also argued by the ALRC that the relevance discretion contained in s 135 provides adequate safeguard against the admission of unsupported opinion evidence, by allowing the court to exclude the evidence is of insufficient probative value to justify its reception. These views, and the abolition of the basis rule, were endorsed in the submissions from Arthur Robinson & Hedderwicks,[111] and Ian Freckelton of the Victorian Bar.[112] This Part of the Act was also endorsed, as a whole, by the Insurance Council of Australia.[113]

Judges Mullaly and Kelly did express some reservations about another aspect of s 79, namely, the fact that it provides that experience alone may qualify someone as an expert. Although this is consistent with the position at common law, their Honours pointed out that the abolition of the "common knowledge" rule by s 80 of the Act meant that an "experienced person might be permitted to give evidence about a matter of `common knowledge".[114]

The Committee agrees that the Act does have this effect, but is satisfied that the requirement of relevance and the existence of the relevance discretion in s 135 provide adequate safeguards against the admission of evidence which is of limited value or which has the potential to usurp the jury's role. The Committee therefore recommends that this Part of the Act be adopted without amendment.

RECOMMENDATION 15

The Committee recommends that Part 3.3 ("Opinion") of the Evidence Act 1995 (Cth) be adopted.

3.4 ADMISSIONS

This Part of the Act contains the rules dealing with the use of admissions, that is, statements made by a person which are `adverse to the person's interest in the outcome of the proceedings'. Although the Act contains provisions dealing with the admissibility of admissions in both civil and criminal proceedings, only the provisions dealing with admissions in criminal proceedings attracted comment. At present the admissibility of admissions and confessions in criminal proceedings in Victoria is determined by a combination of statute and common law. In proceedings for indictable offences, a confession will usually be inadmissible unless tape-recorded.[115] Even if this hurdle is passed, the confession will only be held admissible if the prosecution can satisfy the court, on the balance of probabilities, that it was voluntarily made.

Overlaid on this common law requirement of voluntariness is s 149 of the Evidence Act 1958 (Vic), which provides that a confession procured by means of a promise or threat can only be ruled inadmissible if the promise or threat was `calculated to cause an untrue admission of guilt to be made'. Even if the confession is held to be admissible, however, it may still be excluded by the judge in the exercise of either of two common law discretions, namely the fairness discretion and the public policy discretion. The first of these discretions is re-stated without modification in s 90 of the Act; the second is dealt with in Part 3.3 of the Act.

Sections 84 and 85

These section replace the common law requirement of voluntariness. Section 84(1), which applies in both civil and criminal proceedings, provides that:-

"Evidence of an admission is not admissible unless the court is satisfied that the admission, and the making of the admission, were not influenced by:

(a) violent, oppressive, inhuman or degrading conduct, whether towards the person who made the admission or towards another person, or
(b) a threat of conduct of that kind".[116]

Although the application of this rule to admissions in civil proceedings changes the common law, the Committee believes that such a reform is desirable because if an admission is obtained through the use or threats, its reliability must inevitably be called into question. Section 85 which only applies in criminal proceedings, imposes additional admissibility requirements for admissions made by a defendant during the course of official questioning. It is intended to deal with cases where the circumstances in which an admission, although not amounting to `violent, oppressive, inhuman or degrading conduct', may nevertheless raise questions about the reliability of the admission. The key part of s 85 is subsection (2), which provides that: -

"Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected".[117]

Sub-section (3) then sets out a list of factors which the court should consider in answering this question. The effect of s 85, then, is to change the test of admissibility from one of voluntariness to one of reliability. The Committee believes that a test of reliability is a more appropriate basis for determining the admissibility of admissions in criminal proceedings. The Committee therefore endorses the approach adopted in ss 84 and 85. The Committee also believes that there is sufficient flexibility in the wording of ss 84 and 85 to encompass any circumstance which might make it desirable to exclude evidence of an admission.

The Committee notes that s 149 of the current Evidence Act 1958 (Vic) was also intended to achieve a shift from voluntariness to reliability, at least in respect of admissions obtained by means of promises and threats. In his oral submission to the Committee, Judge Mullaly pointed out that s 149 has, because of its very restricted ambit, fallen into disuse. He therefore argued that there was no reason why s 149 should be retained.[118] As the adoption of this Part of the Act would in any case render s 149 redundant, the Committee also recommends its repeal.

Section 86

Section 86 of the Act, which only applies in criminal proceedings, deals with written records of verbal admissions made in response to a question put, or representation made, by an investigating official. Sub-section (2) provides that:-

"A document prepared by or on behalf of the official is not admissible to prove the contents of the question, representation or response unless the defendant has acknowledged that the document is a true record of the question, representation or response".[119]

Furthermore, the acknowledgment `must be made by signing, initialling or otherwise marking the document'.[120] This section is designed to prevent a documentary record of interview from being given undue weight by the jury, with the ALRC commenting that "the probative value of the document, over and above the probative value of oral evidence of its contents, is small". Accordingly, the ALRC recommended that the document itself should "not be admissible unless adopted in writing, both because of a concern for accurate fact-finding and to ensure the appearance of fairness".[121] Section 86 is not, therefore, intended to replace tape-recording provisions like those in s 464H of the Crimes Act 1958. The New South Wales and Commonwealth equivalents to the Victorian provisions continue to operate alongside the Act.[122] The Committee likewise recommends that s 464H of the Crimes Act 1958 should be retained in its present form.

RECOMMENDATION 2(s)

The Committee recommends that section 464H ("Tape-recording of confessions and admissions") of the Crimes Act 1958 (Vic) be retained and moved to another Act where appropriate.

Section 89

Section 89 is intended to retain the common law right to remain silent. Sub-section (1) provides that: -

"In a criminal proceeding, an inference unfavourable to a party must not be drawn from evidence that the party or another person failed or refused:-
(a) to answer one or more questions; or
(b) to respond to a representation;
put or made to the party or other person in the course of official questioning".[123]

The ban on drawing adverse inferences from a suspect's exercise of the right to remain silent is consistent with the High Court's recent statement of the right in Petty and Maiden v R.[124] Judges Mullaly and Kelly argued that this aspect of the right to remain silent "has but little support in the community" and suggested that adverse comment about a defendant's exercise of the right to remain silent ought to be permitted.[125] In his oral submission to the Committee, Judge Mullaly expanded on these claims. In particular, he drew attention to ss 34 to 38 of the Criminal Justice and Public Order Act 1994 (UK), which allow a trial judge, in an appropriate case, to make adverse comments about an accused person's exercise of the right to remain silent. His Honour informed the Committee of anecdotal evidence suggesting that these provisions are working well.[126] While noting his Honour's comments, the Committee decided that such a fundamental change to our criminal justice system fell outside its terms of reference.

What did come within the Committee's terms of reference, however, was the claim by the Victoria Police that s 89 actually goes further than the common law in that it appears to forbid the drawing of adverse inferences from a defendant's selective answering of police questions.[127] In the case of Woon v R [128], the defendant had answered some police questions and refused to answer others. The High Court held that it was open to the jury to find that the defendant had, through his words and conduct during the interrogation, revealed a consciousness of guilt. Because s 89(1) forbids the drawing of adverse inferences from the fact that the defendant failed or refused to `answer one or more questions', it arguably overrules the decision in Woon.

A preliminary point to make is that if the section has this effect, it appears to be an unintentional one. Neither of the ALRC Evidence reports referred to Woon's case, nor have any of the commentaries on the Act picked up this point. Despite this, the Committee believes that there is substance to the argument of the Victoria Police that s 89 may have the effect of overruling Woon. One way of overcoming the potential conflict between Woon and s 89 might be to redraft s 89 as follows:-

"In a criminal proceeding, an inference unfavourable to a party must not be drawn from evidence that the party or another person exercised the right to remain silent".

This would enable the courts to maintain the present position at common law, where an adverse inference can be drawn from selective answering like that engaged in by Woon, but not from a suspect's exercise of the right to remain silent. Precisely what constitutes an exercise of the right to remain silent would be left, as it currently is, to the judge's interpretation of the common law.

In the interests of uniformity, however, the Committee recommends that s 89 should be enacted in its present form, and that the problem of ensuring that there is no conflict between Woon and s 89 can be dealt with as part of the ongoing process of reviewing the uniform legislation on a co-operative basis between the Commonwealth and the States.

RECOMMENDATION 16

The Committee recommends that section 89 ("Evidence of silence") of the Evidence Act 1995 (Cth) be adopted. It further recommends that if any problems emerge, they be considered as part of the ongoing process of reforming the uniform legislation.

3.5 EVIDENCE OF JUDGMENTS AND CONVICTIONS

This Part of the Act attracted no submissions. Consistent with the common law, s 91(1) establishes a general rule that `Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in the proceeding'. One of the effects of this general rule is that a person's conviction in criminal proceedings is inadmissible in any subsequent civil proceedings arising out of the same facts to prove that the person committed the offence charged. This aspect of the rule was abrogated in Victoria in 1993 by the insertion of s 90 into the Evidence Act 1958. Section 92(2) of the Commonwealth Act has the same effect as s 90. The Committee therefore recommends that if the Commonwealth Act is adopted, s 90 of the Evidence Act 1958 (Vic) be repealed.

The Committee also notes that s 93(a) provides that this Part of the Act does not `affect the operation of ... a law that relates to the admissibility or effect of evidence of a conviction tendered in a proceeding (including a criminal proceeding) for defamation'. Victoria has such a law in the form of s 91 of the current Victorian Evidence Act 1958. This section should be retained, either by placing it in this Part of the new Evidence Act (in which case some redrafting will be necessary), or by moving it to another act.

RECOMMENDATION 2(q)

The Committee recommends that section 91 ("Conclusiveness of convictions etc. for the purposes of defamation proceedings") of the Evidence Act 1958 (Vic) be retained and moved to another Act where appropriate.

3.6 TENDENCY AND CO-INCIDENCE

Sections 97 and 98

This part of the Act deals with two kinds of evidence. First, `evidence of the character, reputation or conduct of a person, or a tendency that a person has or had', when used to prove that `a person has or had a tendency ... to act in a particular way, or to have a particular state of mind';[129] and secondly, evidence about `two or more related events', when used to prove that `because of the improbability of the events occurring coincidentally, a person did a particular act or had a particular state of mind'.[130] Although this part of the Act replaces the common law `similar fact rule' it brings about two notable reforms. First, whereas the common law only had one rule - the similar fact rule - the Act has two, the `tendency rule' and the `coincidence rule'. Secondly, whereas the similar fact rule at common law only applies in criminal proceedings to evidence led by the prosecution against the accused, the tendency and coincidence rules created by the Act are of general application.

In the Committee's view, the first reform is a desirable one. Although there have always been arguments about the scope of the similar fact rule, there is no doubt that it covers propensity reasoning; that is, it prima facie forbids any inference from the fact that the accused has acted in a particular (criminal) manner on one occasion to the conclusion that he or she may have acted in the same (criminal) manner on the occasion which gave rise to the charges. It is to this type of reasoning that the tendency rule in the Act applies. But as Justice McHugh observed in the High Court's recent decision in Pfennig v R, the similar fact rule also covers cases where the jury are invited to infer that "the association of the accused with so many similar deaths, injuries or losses, as the case may be, makes it highly improbable that there is an innocent explanation for the accused's involvement in the matter".[131] It is this kind of reasoning which is covered by the Act's coincidence rule. By clearly spelling out the two kinds of reasoning which are - prima facie - forbidden, the Act should reduce the confusion which has traditionally been associated with this area of the law.

The second reform was justified by the ALRC on the basis that the evidence encompassed in the rules is often of very limited probative value,[132] a claim based on the ALRC's review of the relevant psychological literature. Accordingly, the Act requires that tendency and coincidence evidence is only admissible if the court considers that the evidence would have `significant probative value'. The Committee queries the need for such an approach. If the evidence truly is of limited probative value then the requirement of relevance, read in light of the general discretion to exclude evidence contained in s 135 of the Act, already allow for its exclusion. The imposition of a requirement of `significant probative value' was presumably based on a belief that in practice it would not. Nevertheless, ss 97 and 98 do compromise the general thrust of the Act which is to ensure that all relevant evidence is placed before the tribunal of fact unless there are compelling reasons why it should not. The ALRC's reports do not adequately identify what those reasons might be.

There is one clear category of case, however, where the requirement of relevance has proven to be an inadequate safeguard. In rape trials the common law allowed the admission of evidence relating to the alleged tendencies of the complainant (often referred to as sexual history evidence) in cases where the evidence had no real bearing on the issues and seemed more likely to prejudice the jury against the complainant than to assist the jury in its task of accurate fact-finding. But in this category of case the current Victorian provisions set a higher standard for the admission of tendency evidence than does the Act. Where ss 97 and 98 of the Act require `significant probative value', s 37A of the Evidence Act 1958 (Vic) requires `substantial relevance to facts in issue'. Sections 97 and 98 should not, therefore, be seen as replacements for s 37A.

The Committee notes that the New South Wales equivalent to s 37A - namely ss 409B of the Crimes Act 1900 (NSW) - has been retained. The Committee has already noted, in the context of its discussion of s 41 of the Act, that there may be some problems in the operation of s 37A. Nevertheless, the Committee recommends that s 37A of the Evidence Act 1958 (Vic) should be retained, preferably by moving it to the Crimes Act 1958 (Vic). As for ss 97 and 98, the Committee is, on balance, of the view that they ought to be adopted without amendment. While they may - in theory at least - be unnecessary, they are appear unlikely to cause any harm. It would, moreover, be difficult to remove or amend the sections without major redrafting of the Part as a whole, which would be undesirable in the interests of uniformity.

Although the Act does apply generally a rule which at common law applied only to prosecution evidence in criminal proceedings, the Act nevertheless maintains the common law tradition of special treatment for such evidence. Section 101(2) of the Act, which applies only in criminal proceedings, provides that:-

"Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant". [133]

The Victoria Police have argued that this section raises the threshold of admissibility for such evidence.[134] The argument is based on a claim that the current test for admissibility at common law is that the probative value of the tendency or coincidence evidence merely outweigh - rather than substantially outweigh as under the Act - the prejudicial effect of the evidence. The Committee's advice, however, is that the current test of admissibility, as articulated by the High Court in the cases of Hoch v R [135] and Pfennig v R [136] is that the evidence must bear "no rational explanation consistent with innocence". This is a very exacting test; indeed it is difficult to conceive of a more exacting one. If anything, therefore, s 101 actually lowers the threshold of admissibility for such evidence.

In oral submissions to the Committee Judge Mullaly pointed out that a high standard of admissibility may be inappropriate in the context of sexual offences, particularly those committed against children. His Honour argued that a high standard of admissibility may result in the exclusion of evidence which has a legitimate role to play in the determination of guilt in such cases.[137] The Committee is sympathetic to this claim, and recommends that some attention be given to the question of whether a lower standard of admissibility for tendency and coincidence evidence should be applied in cases where the accused is charged with a sexual offence or offences.

Another difference between the common law and statutory tests, is that in the current common law test the amount of probative value necessary for admission is a constant, whereas under the Act the amount of probative value necessary for admission will vary according to the amount of prejudice the evidence is likely to cause. In theory this change is desirable; in practice it may make the admissibility of this type of evidence less predictable.

On the whole, however, the Committee is satisfied that this Part of the Act provides a workable basis for determining the admissibility of tendency and coincidence evidence and recommends its adoption without amendment.

RECOMMENDATION 17

The Committee recommends that Part 3.6 ("Tendency and coincidence") of the Evidence Act 1995 (Cth) be adopted.

3.7 CREDIBILITY

This Part of the Act deals with evidence about the credibility of witnesses. It replaces a complex combination of common law and statutory rules.

Section 103

One of the ALRC's aims in drafting the provisions was to restrict cross-examination relevant only to witness credibility by requiring that the evidence adduced in cross-examination has `substantial probative value'. Section 37 of the current Evidence Act 1958 (Vic) has the same aim. Judges Mullaly and Kelly indicated that in their view that s 103 may, however, be more effective at achieving this aim.[138] Accordingly, if the Act is adopted s 37 should be repealed.

Section 104

This section places additional limitations on the cross-examination of the accused. In this respect it is the equivalent of sub-sections (5) and (6) of s 399 of the Crimes Act 1958 (Vic). Those provisions, which were based on the English Criminal Evidence Act 1898, have always given rise to problems of interpretation. In his oral submission to the Committee Judge Mullaly argued, however, that s 104 might widen the ambit of protection, by increasing the occasions where it is necessary for a prosecutor to seek the leave of the court to cross-examine the accused on matters relating to credit. This is because, he argued, s 104(3) fails to include all situations where the accused can be examined as to his or her credit in a non-prejudicial fashion.[139] The Committee accepts that there may be some technical merit in this view, but notes that if the section does have any such effect it would appear to be unintentional.

In comparison to the existing Victorian provisions, however, the Committee believes that s 104 achieves its aim of increasing the clarity and ease of understanding the law, without diminishing the protection offered to the accused. This was also the view taken of the section by the Victoria Police.[140] The Committee therefore recommends its adoption, and notes that if any problems emerge in its operation these can be dealt with as part of the ongoing national process of reforming the legislation.

RECOMMENDATION 18

The Committee recommends that section 104 ("Further protections: cross examination of accused") of the Evidence Act 1995 (Cth) be adopted. It further recommends that if any problems emerge, they be considered as part of the ongoing process of reforming the uniform legislation.

Section 105

Section 105 applies only in criminal proceedings in which a defendant has, under the law of a State or Territory, the right to give unsworn evidence. This section was omitted from the Evidence Act 1995 (NSW), and should also be omitted from any Victorian Act. The omission of s 105 also requires the omission of any reference to s 105 in s 108(2).

The Committee therefore recommends that this Part of the Act should be adopted subject to the necessary amendments detailed above.

RECOMMENDATION 19

The Committee recommends the adoption of Part 3.7 ("Credibility") of the Evidence Act 1995 (Cth) subject to the omission of section 105 ("Further protections: defendants making unsworn statements") and the making of any necessary consequential amendment.

3.8 CHARACTER

The chief purpose of this Part of the Act is to permit the accused in a criminal trial to lead evidence of his or her good character, and to permit the prosecution to rebut any such evidence. In essence, the provisions retain the current position at common law; but they also bring about a series of minor - and in the Committee's view desirable - reforms to this area of the law. For example, at common law, the accused could not claim to have a good character in a particular, limited, respect without opening up their entire character to negative scrutiny.[141] Section 110 of the Act allows the accused to do so.

No negative comments were received about this Part of the Act, and the Committee recommends its adoption without amendment.

RECOMMENDATION 20

The Committee recommends the adoption of Part 3.8 ("Character") of the Evidence Act 1995 (Cth).

3.9 IDENTIFICATION EVIDENCE

At common law, identification evidence in criminal proceedings is not subject to any rules of admissibility. The trial judge does, however, have a discretion to exclude the evidence and the High Court has indicated the considerations which should be taken into account in exercising that discretion.[142] In addition, the High Court has required that the jury be given a warning, tailored to the circumstances of the particular case, about the danger of relying on identification evidence.[143] This warning requirement is restated in s 116 of the Act - contained in this Part of the Act - and again in s 165(1)(b) of the Act, contained in Part 4.5 of the Act.

As to admissibility, the Act replaces the current discretionary approach with a set of rules which determine whether or not a particular piece of identification evidence will be admissible. The focus of these rules is ensuring that the police have obtained the safest and most reliable form of evidence possible. In most cases, this means that the police must conduct an identification parade. The Committee found it to be most significant, therefore, that the Victoria Police commented that "Section 114 appears to provide an adequate approach to identification parades".[144] The Victoria Police did, however, note the need for legislation equivalent to ss 3ZM, 3ZN and 3ZP of the Crimes Act 1914 (Cth) which set out a series of requirements and procedures for conducting such parades. The Committee endorses this recommendation.

Section 115

The Victoria Police did, however, express some reservations about s 115, which deals with the admissibility of `picture identification evidence'. The main situation covered by this section is the selection of the defendant's photograph from a number of such photographs presented to the witness. The Victoria Police argued that sub-sections (3) and (4) of s 115 "appear to be unnecessarily technical".[145] Sub-section (3) provides that picture identification evidence will not be admissible if the defendant is in police custody at the time the identification was made, but the identification was based on a picture made before the defendant was taken into custody. Sub-section (4), however, provides that sub-section (3) does not apply if the defendant's appearance has changed significantly between the time of the offence and the time the defendant was taken into custody, or if it was not reasonably practicable to make a picture of the defendant after he or she was taken into custody. The Police suggested that a discretion to disallow picture identification evidence which did not meet the requirements in sub-section (3) would be preferable to a general prohibition.[146]

In the Committee's view, however, one of the great strengths of this Part of the Act is the certainty which it introduces into an area of law where discretion had previously held sway. This certainty should ultimately be advantageous to the police, because it will mean that the police will know exactly how an identification must be carried out if it is to be admissible in court. A discretionary approach, on the other hand, deprives the police of this knowledge.

The Committee therefore recommends that this Part of the Act be adopted without amendment.

RECOMMENDATION 21

The Committee recommends the adoption of Part 3.9 ("Identification evidence") of the Evidence Act 1995 (Cth).

3.10.1 Client Legal Privilege

Sections 118 and 119

The question of client legal privilege, or, as it is known at common law, legal professional privilege, is potentially one of the most contentious aspects of the Act. It is desirable initially to look at the question of legal professional privilege at common law.

Definition of legal professional privilege at common law

The privilege is concerned with:-

• (1) Confidential communications passing between the client and legal adviser for the sole purpose of enabling the adviser to give legal advice or for use in actual litigation or litigation contemplated by the client and;
• (2) Communications passing between the client and/or legal adviser and third parties for the sole purpose of obtaining advice in relation to actual litigation or litigation which is reasonably anticipated. (The privilege outlined in (2) might also be described, and has been described as a `litigation privilege').

Whilst the definition put forward above focuses on communications, the privilege clearly extends to documents which are not, strictly speaking, communications, such as draft witness statements and other documents from the lawyer's brief provided they were brought into existence for the sole purpose of preparation for actual or contemplated legal proceedings or for use in such proceedings.

The Act seeks to deal with what is currently categorised as legal professional privilege under two heads: (1) a legal advice privilege and (2) a litigation privilege.[147] To the extent that these provisions do not expressly cut down common law legal professional privilege, it would appear that the Courts will not allow them to do so.[148] Professor McNicol also makes reference to the fact that s 119 does not expressly cover communications between a lawyer and a client for the purposes of litigation.[149] Whatever the scope of s 119, it is the Committee's view that the communication would be covered by s 118.

What is the rationale for the privilege?

It is perhaps useful to look at the rationale for the privilege and to determine whether the Act takes account of this rationale. In Grant v Downs [150] three judges of the High Court of Australia (Stephen, Mason and Murphy JJ)[151] explained the rationale for legal professional privilege in the following terms:-

"The rationale of this head of privilege, according to traditional doctrine, is that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers, the law being a complex and complicated discipline. This it does by keeping secret their communications, thereby inducing the client to retain the solicitor and seek his advice, and encouraging the client to make a full and frank disclosure of the relevant circumstances to the solicitor. The existence of the privilege reflects, to the extent to which it is accorded, the paramountcy of this public interest over a more general public interest, that which requires that in the interests of a fair trial litigation should be conducted on the footing that all relevant documentary evidence is available. As a head of privilege legal professional privilege is so firmly entrenched in the law that it is not to be exorcised by judicial decision. None the less there are powerful considerations which suggest that the privilege should be confined within strict limits".

The reason for the privilege was explained by Mason and Brennan JJ in Attorney-General (NT) v Maurice [152] as follows:-

"The furtherance of the administration of justice through the fostering of trust and candour in the relationship between lawyer and client. The privilege is based on: `the need of laymen for professional assistance in the protection, enforcement or creation of their legal rights. They should have the benefit of that assistance, free of any restraint which fear of the disclosure of their communications with those advisers would impose.' (R v Bell; ex parte Lees (1980) 146 CLR 141 at 152, per Stephen J.) When the privilege applies, it enables the client to keep the communication from disclosure and interferes with the public's `right to every man's evidence': Cobbett's Parliamentary History (1812) vol 12, p 675. Because of this conflict between the public interest in ensuring the availability of all relevant evidence in a particular case and the public interest in the administration of justice through effective legal representation, the privilege is confined within strict limits: Grant v Downs (1976) 135 CLR 674 at 685, per Stephen, Mason and Murphy JJ".

The passages from the two cases referred to were cited with approval by Brennan J in Carter v The Managing Partner, Northmore Hale Davey & Leake [153]who concluded that the: -

"justification for the privilege is satisfaction of a public interest rather than enforcement of a private right, though there is no dichotomy between the two".

Of course, it might be argued that the rationale for the privilege depends upon whether one is concerned with the privilege as it relates to legal advice or with the privilege as it relates to litigation.

The sole purpose test

It follows from what has been said about the balancing process underlying legal professional privilege that the Courts must seek to confine the privilege. This they have chosen to do through the sole purpose test.

Grant v Downs[154] was a case in which the widow of a psychiatric patient who had escaped from the North Ryde Psychiatric Centre and died of pneumonia, sued the New South Wales Government for negligence. At issue was the question whether reports prepared for the New South Wales Department of Public Health were liable to be produced by the defendant. The reports had been prepared for several purposes, one of which was to determine whether there had been any breaches of discipline by staff and to assist in obtaining legal advice in the event of the death of the patient.

Stephen, Mason, Murphy[155] and Jacobs JJ[156] held that, in order to attract legal professional privilege, the reports had to be prepared for the sole purpose of being submitted to legal advisers for advice or use in legal proceedings. Barwick CJ held that the relevant test to be applied was whether the dominant purpose of the preparation of the reports was for submission to the legal advisers.[157] The judges were unanimous that the reports should be produced for inspection. Neither test for legal professional privilege was satisfied on the facts of the case.

In a case which came before the High Court very shortly after the Grant v Downs decision, National Employers' Mutual General Insurance Co. Ltd. v Waind, [158] the Court applied its decision to require production of insurance loss assessors' reports which had been prepared to enable the insurer to determine whether its insured was liable for claims made by an employee and to oppose any claim which might be made by the employee if payments of workers' compensation were to be denied. It could not be said that the reports had been obtained for the sole purpose of submission to legal advisers for advice or use in legal proceedings.

In England and New Zealand the courts apply a dominant purpose test. Even though the sole purpose test determines the parameters of legal professional privilege, at common law in Australia, it would appear that a communication may still qualify for the privilege even though, on proper analysis, it serves a dual purpose: See Waterford v Commonwealth [159]. Indeed, it might be said that the application of the sole purpose test has been relaxed to an extent where it takes on the guise of the dominant purpose test. The sole purpose test was described by the Insurance Council of Australia as "unsatisfactory" in its submission to the Committee.[160]

The Act adopts a dominant purpose test. This was recommended by the ALRC.[161] The legislation, as introduced by the previous Commonwealth Government, contained a sole purpose test. It is understood that a compromise was reached in the Senate to ensure passage through that House. The Committee has noted that the adoption of a dominant purpose test will, in most instances, assist an insurer in civil litigation. However, the Committee does not believe that the adoption of the test is likely to lead to great injustice having regard to the way in which the courts have adapted and applied the sole purpose test and its acceptance in other jurisdictions.

It should be noted that the Act does not seek to apply the dominant purpose test to the disclosure of documents which occurs during the interlocutory stage of civil proceedings.[162] Therefore, an affidavit or list of documents prepared by a party to civil litigation must be prepared on the basis of the sole purpose test. Whether the documents are to be produced by a party for inspection by its adversary will be determined on the basis of the dominant purpose test: See TPC V Port Adelaide Wool Co Pty Ltd .[163] This may appear anomalous, however, the anomaly would appear to give rise to no injustice. The decision in Tarrant v Myer Stores Pty Ltd [164] referred to in the submission of Ms Bartlett of the Law Institute of Victoria, is to similar effect.[165]

The privilege is not a mere rule of evidence

Legal professional privilege is no mere evidentiary or procedural right which can be employed in legal proceedings. It is a substantive right protected by the law. In a decision relating to the provisions of ss 118 and 119 of the Act, Branson J of the Federal Court made this point in a recent decision: SeeTPC v Port Adelaide Wool Co Pty Ltd .[166] Accordingly, the new provisions should be approached on the basis that they do not restrict the privilege unless the language of the provisions clearly does so, but may be read as expanding the privilege if this is open on their construction.[167]

The privilege can only be excluded or cut down by a clear statutory provision.[168] Whilst the privilege is subject to established exceptions such as communications made in furtherance of a crime, fraud or other dishonesty, the High Court has expressed the view that any further exceptions should only be made by statute. It has held, for example, that an accused person has no right to insist upon production of documents subject to legal professional privilege which would assist him/her in establishing innocence: See Carter v The Managing Partner, Northmore Hale Davey & Leake .[169] This effect of this case is overcome by s 123 of the Act. The nature of the privilege as something other than a mere rule of evidence is preserved by the Act.[170]

Who is the legal adviser?

At common law questions have arisen as to whether an `in-house' lawyer employed by the client is a legal adviser for the purpose of attracting the privilege. It seems that the lawyer must make or receive a communication as the lawyer for the client/employer if the privilege is to be claimed.

The privilege belongs to the client-it may be waived by the client

Legal professional privilege may not be waived by the legal adviser except, of course, upon the instructions of the client. It can be waived by the client. A client "may waive the privilege by intentionally disclosing protected material to another. If disclosure is incompatible with the retention of confidentiality, there will ordinarily be a general waiver of privilege: See Goldberg v Ng.[171] In that decision, Toohey J, considered the circumstances in which disclosure might be made. He noted that disclosure to a third party, such as a doctor, for the purpose of obtaining an expert report for use in litigation does not result in waiver and referred to Dingwall v Commonwealth [172]; whereas disclosure to an agent of an opposing party does constitute waiver: Seafoods Ltd v Switzerland General Insurance Co Ltd.[173]

In Goldberg v Ng,[174] Goldberg, a solicitor, and his wife were involved in proceedings in the Supreme Court of New South Wales with Ng. A complaint was made to the Law Society of New South Wales by Ng in respect of alleged defalcation by Goldberg. Goldberg disclosed documents to the Law Society, which documents were subject to legal professional privilege on the basis that they would not be shown to anyone else. Ng sought to subpoena the documents for use in the Supreme Court proceedings. Goldberg claimed legal professional privilege. It was argued that privilege had been waived.

Deane, Dawson and Gaudron JJ[175] held that there had been no express or intentional general waiver by Goldberg of legal professional privilege. There was, nonetheless, an imputed waiver. The delivery of the documents to the Law Society was an act inconsistent with the maintenance of the privilege and where such an act had occurred, the Court had to consider whether it was fair that the privilege should cease. As a matter of fairness, the documents should be disclosed to Ng. Toohey[176] and Gummow JJ dissented.[177]

The problem which arose in Goldberg v Ng is overcome by s 122 of the Act which deals with loss of the client legal privilege. The advices in that case would be protected by the Act. The Committee considers this a reason for adoption of the client legal privilege provisions of the Act.

In conclusion, the Committee has noted the submission of Mr Kenneth Arenson of Deakin University[178], criticising the changes in relation to privilege and other aspects of the Act, on the basis that they offer little in the way of constructive and positive change and the views of Judges Mullaly and Kelly as to the flexibility of the common law of privilege.[179] The Committee is of the view that the common law may in fact lead to injustice and refers specifically to Carter [180] and Goldberg v Ng.[181]

The Committee recommends the enactment of these provisions in their current form, particularly having regard to the need for uniformity between State and Federal jurisdictions. It specifically endorses the adoption of the dominant purpose test, and notes that if any problems do emerge in its application these can be dealt with as part of the ongoing process of co-operative reform of the legislation on a national basis.

The Committee, again in the interests of uniformity, is of the view that the sole purpose test should continue to apply to the actual disclosure of documents in the discovery process. Again, any problems which do emerge can be dealt with as part of any ongoing review of the legislation.

RECOMMENDATION 22

The Committee recommends the adoption of Part 3.10 ("Privileges") of the Evidence Act 1995 (Cth). The Committee specifically endorses the adoption of the dominant purpose test. It further recommends that if any problems emerge, they be considered as part of the ongoing process of reforming the legislation.

Medical privilege

Only in Victoria, Tasmania and the Northern Territory is there statutory provision protecting communications between the medical practitioner and the patient. There is no privilege at common law. The Victorian provision is s 28(2) of the Evidence Act 1958 (Vic). It applies only in civil proceedings. The privilege extends to information required for the treatment of the patient. The privilege belongs to the patient, and not to the doctor, and so can be waived by the consent of the patient. It has been held, however, that the fact that legal proceedings are brought by the patient against the medical practitioner does not constitute a waiver of the privilege.[182]

The privilege is not preserved by the Act. The Insurance Council of Australia, having regard to the "uncertainties and inconsistencies" surrounding the Victorian privilege, supported the abrogation of the privilege.[183] Abrogation was also recommended by the author of the leading Australian text on the law of privilege, which makes the following comment about the Victorian legislation:-

"The legislation has given rise to many uncertainties since its introduction and in the present author's opinion it is doubtful whether the introduction of the privilege can be justified, whatever its original rationale. The privilege has rarely operated effectively in protecting a patient's interest in making full and frank disclosure to his or her doctor. In fact, the few cases where the privilege has been claimed have given rise to conflicts in interpretation and doubts as to the scope of the privilege".[184]

The Australian Medical Association (Victorian Branch), on the other hand, stated that it would be "loathe" to lose the current Victorian privilege.[185] The Committee has, however, come to the view that abrogation of the privilege is appropriate, for two main reasons. First, given that the recognition of a privilege always results in a court being deprived of relevant information - and thus creates a risk that the court will reach an incorrect verdict - it should always be possible to identify a convincing rationale for a privilege. Although it is possible to conceive of cases where it might be desirable to maintain the confidentiality of a particular doctor-patient communication, it is difficult to think of a reason why all such communications should be kept confidential at the expense of denying the courts access to relevant information. In other words, no satisfactory rationale for a privilege can be identified. Secondly, if confidentiality in the doctor-patient relationship is so fundamentally important why does the privilege only extend to civil proceedings, and why has the privilege only been recognised in Victoria, Tasmania and the Northern Territory?

The Committee does, however, accept that there may be cases where it would be desirable to uphold the confidentiality of a doctor-patient communication; but it also believes that some of these cases may be criminal in nature. For these reasons, the Committee believes that the proposals contained in the New South Wales Discussion Paper Protecting Confidential Communications from Disclosure in Court Proceedings [186] (discussed in Part 3.10.3. of the Report) provide a better method of protecting the doctor-patient relationship, than does the current medical privilege. The Committee is therefore of the view that the existing privilege should not be retained.

Judges Mullaly and Kelly favoured the retention of the privilege for slightly different reasons.[187] In his oral submission to the Committee Judge Mullaly explained that the reason why he favoured the retention of the privilege related to a problem discussed below in the context of s 130 of the Act: the problem of the defence in a sexual offence trial gaining access to the complainant's therapeutic or counselling records.[188] Although the Committee shares his Honour's concern about this problem, in the Committee's view the existing medical privilege does not provide an effective solution to it. There are two reasons for this. First, the existing privilege applies only in civil proceedings, whereas the proceedings in which access to records is being sought are all criminal in nature. Secondly, the privilege only protects communications made to a medical practitioner, and not communications made to the other professionals involved in the therapy and counselling of sexual assault victims.

The Committee is therefore satisfied that medical privilege can be abrogated without exacerbating this problem. The Committee is instead of the view that the solution to this problem lies in the adoption of the proposals contained in the New South Wales Attorney-General's Discussion Paper Protecting Confidential Communications from Disclosure in Court Proceedings.

RECOMMENDATION 23

The Committee recommends the abolition of medical privilege. The Committee further recommends the adoption of the proposals contained in the New South Wales Attorney-General's Discussion Paper "Protecting Confidential Communications from Disclosure in Court Proceedings" dated June 1996, outlined in Chapter 3.

Section 127

The privilege given to religious confessions presently found in s 28(1) of the Evidence Act 1958 (Vic) is preserved by s 127 of the Act.

Section 128

The privilege against self-incrimination gives a witness a right to refuse to answer questions if the answers to those questions might incriminate him or her, or expose him or her to a civil penalty. The privilege has recently been described by the High Court as being in the nature of a `fundamental human right' per Brennan J in EPA v Caltex:-

"The privilege is designed to protect human dignity. It is designed not to provide a shield against conviction but to provide a shield against conviction wrung out of the mouth of the offender".[189]

Section 128 of the Act replaces the common law privilege. The privilege has already been modified to some extent in Victoria by s 29 of the Evidence Act 1958. The key feature of the new statutory privilege is that it allows the court to replace one form of protection - the right to refuse to answer incriminating questions - with another - the power to prevent the use of those answers against the witness. The court may thus override the privilege if it finds that `the interests of justice require that the witness give the evidence': s 128(5)(c).[190] If the court does override a valid claim of privilege, however, then it must provide the witness with a certificate which prevents the use of the evidence given by the witness from being used against him or her in any proceeding in an Australian court.

The certificate also prevents the use of any `evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence': s 128(7)(b).[191] The section also gives the witness the option to trade the protection of the privilege for the protection of a certificate: s 128(3).[192]

The main aim of s 128, then, is to increase the amount of evidence available to a court, without undermining the aims of the privilege against self-incrimination. The drafting of the section was criticised by one submission as being a little `circuitous'.[193] The Committee is, nevertheless, satisfied both that the section achieves its aim, and that its aim is worth achieving. The Committee therefore recommends the adoption of s 128 in its present form.

Section 128 must also be read in conjunction with s 187, which abolishes the privilege against self-incrimination for bodies corporate. This is in line with the common law position as stated by the High Court in EPA v Caltex,[194] and is justified on the basis that the privilege is a human right which need not be extended to corporations. The Committee accepts the need for this limitation on the operation of the privilege. The Committee also notes that s 128(8) removes some aspects of the privilege from defendants in criminal proceedings. The removal of these aspects of the privilege are necessary to ensure that the defendant can be properly examined about his or her involvement in the events which are the subject of the charge or charges being tried. Section 399(4) of the Crimes Act (Vic) 1958 currently performs this task, and should therefore be repealed if s 128 is adopted.

RECOMMENDATION 24

The Committee recommends the adoption of section 128 ("Privilege in respect of self-incrimination in other proceedings") of the Evidence Act 1995 (Cth).

This division deals with three categories of evidence which may be excluded in the public interest: evidence of reasons for judicial decisions, evidence of matters of state, and evidence of settlement negotiations. The only one which raised issues requiring the Committee's consideration was s 130, which deals with evidence of matters of state. Section 130 intended to replace the common law doctrine of `public interest immunity'. Public interest immunity gives the courts the power to prevent the disclosure of information or documents when it would be in the public interest to do so. The courts are the ultimate arbiters of what the public interest requires in a particular case: disclosure of the information or documents, or non-disclosure. Although the origins of public interest immunity lie in the protection of the workings of government (as reflected in its earlier name of `Crown privilege'), it has since been used in a variety of situations, as discussed below. Section 130 provides that:-

"If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced in evidence". [195]

In its interim report on the law of evidence, the ALRC commented that "Research and enquiries have not revealed any serious inadequacies in the current common law approach. It is proposed to interfere as little as possible with the common law as it has developed with respect to public interest privilege".[196] In general, s 130 appears likely to achieve this aim of preserving the common law approach. The Committee was concerned, however, that in comparison to the common law s 130 may limit the situations in which public interest immunity can be claimed. This is because of the use of the phrase `matters of state', a non-exhaustive definition of which is provided in s 130(4).

The use of this phrase clearly suggests that the only public interest which can be recognised as requiring the withholding of information is the public interest in the functioning of government. The definition of `matters of state' does nothing to modify this perception. The common law is not so limited. In England, for example, the National Society for the Prevention of Cruelty to Children received and investigated a complaint about the treatment of a 14 month old girl.[197] The complaint was found to be groundless, but the mother sued the Society for negligence and sought the identity of the informant.

The Society claimed that there was a public interest in maintaining anonymity for its informants; namely, that if confidentiality could not be guaranteed, then its sources of information would dry up, and the Society would be unable to carry out its role of protecting children. Even though the Society had been given a statutory authority to bring child abuse proceedings, it is difficult to see how the proper functioning of the Society could amount to a `matter of state'.

Similarly in Aboriginal Sacred Sites Protection Authority v Maurice [198] Woodward J held that the public interest could conceivably require the protection of `secret and sacred information given in confidence to the employees of some private foundation dedicated to the preservation of Aboriginal oral traditions, such as stories and songs of the dreamtime'.

Finally, there is currently some controversy about whether the defence in a rape or sexual abuse case ought to be given access to the complainant's counselling or therapeutic records. This controversy has already been mentioned in the discussion of medical privilege, Part 3.10.2 above. At common law it would be open to argue that the public interest in ensuring that victims of sexual offences were able to receive confidential counselling and therapy outweighed the interests of the accused in having access to the records. It is impossible to see how any such argument could be made under s 130 of the Act.

It must be remembered that the recognition of a public interest in withholding a particular type of information is only the first stage of the process and does not mean that the information will necessarily be withheld. This is because even if a public interest in withholding the information is recognised, this public interest might still be outweighed by the public interest in admitting the information into evidence. The problem with the use of the phrase `matters of state' is that it may prevent a public interest argument from even being made if the information is being sought from anyone other than government. By doing so, it may restrict the development of a still-emerging area of law. It is arguable that s 130 would better reflect the current common law position if the words `that relates to matters of state' were omitted from sub-section (1), and the first part of the current sub-section (4) were replaced with the following:-

"Without limiting the circumstances in which the court may recognise for the purposes of subsection (1) that there is a public interest in preserving the secrecy or confidentiality of information or a document, the court may recognise that there is a public interest in preserving the secrecy or confidentiality of information or a document if adducing it as evidence would".

The Committee believes, however, that there is a better way of addressing this problem.[199] The New South Wales Attorney-General's Department has recently released a discussion paper entitled Protecting Confidential Communications from Disclosure in Court Proceedings. The discussion paper contains draft legislation designed to amend the Evidence Act 1995 (NSW) by inserting a new Division 1A into Part 3.10 of the Act. The Bill itself is reproduced in Appendix B. The explanatory notes to the Bill state:-

"The object of this Bill is to amend the Evidence Act 1995 so as to expand the categories of privilege that may prevent evidence being adduced to include evidence protected from disclosure on the ground that it concerns a confidential communication made to a confidant acting in a professional capacity in circumstances in which the confidant was under an express or implied obligation not to disclose its contents, a document prepared in relation to such a communication or information about the identify of the maker of the confidential communications.......

The proposed Division will provide a means for testing claims to privilege not available under the Evidence Act 1995 or the common law. This includes the claim of a doctor to refuse to answer questions about his or her patients, the claim of a journalist to refuse to disclose his or her sources and the claim of a sexual assault counsellor to refuse to disclose notes made in the course of counselling sessions with a client who has been a victim of sexual assault.

Under the proposed Division, a court will be able direct that such evidence not be disclosed and must do so if satisfied that if the evidence is adduced it is likely that harm would be caused to the person making the confidential communication and that the nature and extent of the harm outweighs the desirability of the evidence being given. A court will be able to ensure that any part of a communication or document that should not be disclosed is not adduced."[200]

The Committee is also satisfied, however, that the proposed Division provides a workable and conceptually sound method of dealing with the situations discussed above in the context of the limitations of the phrase `matters of state'. The Committee also supports the enactment of the proposed Division 1A on the basis that amendments to the Act ought to be uniformly adopted. The Committee therefore recommends the enactment of s 130 in its present form, together with the adoption of the new Division 1A proposed in the New South Wales discussion paper. The Committee does have some concerns, however, about the way in which these provisions might be applied.

In particular, it is concerned that trial judges might be reluctant to uphold the claim by a complainant in a sexual offence trial to confidentiality for therapeutic or counselling records. The Committee therefore recommends that if the proposed provisions are enacted, their operation should be closely scrutinised, in order to ensure that the privacy of sexual assault victims is accorded the respect it deserves.

If the recommendation to incorporate the proposed Division 1A is not accepted, then the amendment of s 130 along the lines previously discussed should be considered.

These provisions substantially reproduce existing practice with regard to the determination by the court of questions of privilege. There is nothing controversial in these provisions.

This Part of the Act contains a series of discretions to exclude evidence which is legally admissible.

Sections 135 and 136

These two sections confer a discretion on the trial judge to exclude evidence, or to limit its use, where it might be unfairly prejudicial to a party, misleading or confusing, or could cause or result in undue waste of time. The discretions are of general application and have no equivalents at common law. As Judges Mullaly and Kelly commented, "These seem to be sensible provisions which will allow a trial judge greater control over the introduction of time-wasting evidence of little substance".[201] The Committee likewise supports their enactment.

Section 137

This discretion, which only applies in criminal proceedings, requires the court to exclude prosecution evidence `if its probative value is outweighed by the danger of unfair prejudice to the defendant'. This discretion is equivalent to one which already exists at common law, although it is arguable that the common law discretion merely allows the judge to exclude the evidence when satisfied that its prejudicial effect outweighs its probative value, rather than requiring him or her to do so. Nevertheless, the Committee endorses the version of the discretion contained in the Act.

Section 138

Section 138 preserves the common law discretion recognised by the High Court in Bunning v Cross.[202] This discretion, often referred to as the `public policy' discretion, allows a judge to exclude illegally or improperly obtained evidence. In exercising the discretion the judge must balance two competing requirements of public policy: first, the public interest in admitting the evidence, namely the conviction of the guilty; and secondly, the public interest in excluding such evidence in order to avoid `the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law'.[203]

Section 138 does, however, bring about one significant change to the discretion. At common law it is for the party which seeks the exclusion of the evidence to show that the public interest requires this. Under s 138, on the other hand, the onus is reversed, and the party seeking the admission of illegally or improperly obtained evidence must satisfy the court that the balance of public interest favours its admission. Judges Mullaly and Kelly queried the need for this reversal of onus, but it was justified by the ALRC with the argument that:-

"The policy reasons supporting non-admission of the evidence suggest that, once the misconduct is established, the burden should rest on the prosecution to persuade the court that the evidence should be admitted. After all, the evidence has been procured in breach of the law or some established standard of conduct. Those who infringe the law should not be required to justify their actions and thus bear the onus of persuading the judge not to exclude the evidence so obtained".[204]

The Committee is persuaded by these considerations, together with the interests of uniformity, to support s 138 in its present form.

RECOMMENDATION 25

The Committee recommends the adoption of sections 135 ("General discretion to include evidence"), 136 ("General discretion to limit the use of evidence"), 137 ("Exclusion of prejudicial evidence in criminal proceedings") and 138 ("Discretion to exclude improperly or illegally obtained evidence") of the Evidence Act 1995 (Cth).

Section 139

Section 139 places a gloss on s 138, by providing that in certain specified circumstances a statement made by a defendant during questioning will be taken to have been improperly obtained if the defendant was not cautioned before the questioning began. This does not mean that the failure to caution will necessarily result in the statement's exclusion. What it does mean, however, is that a failure to caution a suspect in the circumstances set out in s 139 will require the prosecutor to satisfy that the judge that he or she ought to admit the evidence in the exercise of the discretion in s 138. The Victoria Police pointed out that s 464A of the Crimes Act 1958 (Vic) already specifies the point at which the caution must be given, so that the enactment of s 139 may not in fact be necessary in Victoria.[205]

Before dealing with this submission it may be desirable to compare the current Crimes Act 1958 (Vic) provisions with s 139 of the Act. Section 464A(2) of the Crimes Act 1958 (Vic) provides that `if a person suspected of having committed an offence is in custody for that offence' then the person may be questioned `in order to determine the involvement (if any) of the person in that offence'. Section 464A(3) provides, however, that the person should first be cautioned. The conditions which must be met before the requirement to caution a suspect arises, therefore, are (i) that they be suspected of having committed an offence; and (ii) that they be in police custody. Section 464(1)(c) provides that a person is in custody if the person is either under arrest or in the company of an investigating official and is either being questioned, to be questioned, or otherwise being investigated in order to determine the involvement in the commission of an offence; and there is sufficient information in possession of the investigating official to justify the person's arrest. Section 459 says a person can be arrested if a member of the police force believes on reasonable grounds that the person has committed an indictable offence. The second condition above - that the person be in police custody - therefore translates to a requirement that the person either be under arrest, or that there be reasonable grounds for a belief that the person has committed an indictable offence.

Although expressed differently, the conditions which require the giving of a caution under s 139 are essentially the same. In broad terms, the person must either be under actual arrest; or be being questioned by an investigating official who believes that there is `sufficient evidence to establish that the person has committed an offence'. There is one obvious difference between the s 139 and the Crimes Act 1958 (Vic) provisions, in that the Crimes Act 1958 (Vic) provisions only apply when there are reasonable grounds for a belief that the person has committed an indictable offence. The question therefore arises as to which of these provisions should be retained: s 464A(3) of the Crimes Act 1958 (Vic), or s 139 of the Act.

In the Committee's view there is merit in the idea that the current Crimes Act 1958 (Vic) provisions should be retained. The cautioning requirement in s 464A(3) is merely one small part of a larger, integrated, framework of rules dealing with custody and investigation in Victoria. Disrupting the fabric and integrity of the Crimes Act 1958 (Vic) provisions by placing part of that framework in a different Act to the rest has obvious disadvantages, and could impose an unreasonable burden on the police. At present, for example, the conditions which require the giving of a caution also require the police to inform a suspect of the right to communicate with a relative, friend or lawyer: Crimes Act 1958 (Vic), s 464C(1). If s 464A(3) were replaced with s 139, however, then the police would need to be familiar with two sets of conditions, rather than just one as at present.

The Committee therefore recommends that s 139 either be omitted from a Victorian version of the Act, or that it be replaced with a section which specifies that failure to caution in accordance with the requirements of s 464A(3) of the Crimes Act 1958 (Vic) will result in any statement made being held to have been improperly obtained for the purposes of s 138.

RECOMMENDATION 26

The Committee recommends that section 139 ("Cautioning of persons") of the Evidence Act 1995 (Cth) be omitted from a Victorian version of the Act. Alternately, the Committee recommends that it be replaced with a section which specifies that failure to caution in accordance with the requirements of section 464A(3) of the Crimes Act 1958 (Vic) will result in any statement made being held to have been improperly obtained for the purposes of section 138.

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