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Shedding light on evidence

Cover Story

Cite as: Jan/Feb 2011 85(1/2) LIJ, p.34

After a year of uniform evidence law, several decisions alert practitioners to the effect of changes brought about by the Evidence Act.

By Christopher Beale and Glenn Barr

By virtue of the Evidence Act 2008 (Vic) (the Act),1 which commenced operation on 1 January 2010, Victoria has adopted uniform evidence law (UEL). This article examines major criminal decisions on UEL by the Victorian Supreme Court (VSC) and Court of Appeal (VSCA) in 2010. Those decisions underline the fact that the UEL makes substantial changes to the law of evidence, which practitioners need to bear in mind when advising clients from the investigation stage through to appeal.

Examination in chief

Under s38, a court may grant leave to a party to cross-examine its own witness if: (a) the evidence of the witness is “unfavourable” to that party; or (b) the witness is not making a genuine attempt to give evidence; or (c) the witness has made a prior inconsistent statement.

In R v McRae2 the accused was charged with murder. The prosecution alleged he was complicit with Flaherty (the shooter), who had pleaded guilty. Flaherty refused to assist the prosecution against McRae. The prosecution decided to compel Flaherty to give evidence because he had made representations in his record of interview and in an intercepted conversation which inculpated McRae. Curtain J ruled that if the prosecution called Flaherty and his evidence was unfavourable to the prosecution, she would permit the prosecution to cross-examine him under s38 about his previous representations, which is what occurred. Her Honour found (at [19]-[21]) that there is now nothing improper with the prosecution calling a witness known to be unfavourable to get into evidence their previous representations which assist the prosecution.

Practitioners should be aware that if a client has inculpated others in their record of interview and is proposing to plead guilty, McRae is relevant to whether the client should offer to assist the prosecution against co-offenders. The client may find themself “assisting” the prosecution, whether they want to or not, but if they do so voluntarily, a sentencing discount is likely.


Section 60 is a broad exception to the rule against hearsay: if a previous representation is admissible for a non-hearsay purpose (such as to impeach the credit of an unfavourable witness), it may also be used for a hearsay purpose. In McRae, Curtain J permitted the prosecution under s38 to tender recordings of Flaherty’s previous representations and rely on them for their truth under s60.3

Section 65 contains seven exceptions to the rule against hearsay. All depend on the maker of the previous representation being “unavailable”. There are seven categories of unavailability.4

In R v Darmody,5 a serious assault case, the complainant was in jail at the time of the trial and refused to give evidence against the accused until he (the complainant) was paroled. The defence successfully opposed the prosecution’s application to adjourn the trial. However, the prosecution then argued that the complainant was “unavailable” in that the prosecution had taken all reasonable steps to compel him to give evidence but without success. The VSCA (at [22]-[26]) held that the complainant was “unavailable” and that the prosecution could tender his committal evidence pursuant to s65(3). Darmody is relevant when advising clients whether to oppose an application by the prosecution to adjourn a proceeding.

In DPP v Nicholls,6 an assault case, the complainant successfully applied to a magistrate under s18 to be excused from giving evidence against her de facto, with whom she had reconciled. The magistrate ruled that this did not make her “unavailable”, thus preventing the prosecution from relying on s65 to try to get her statement into evidence. On appeal, Beach J found that the complainant was “unavailable” and remitted the matter to the Magistrates’ Court to determine the applicability of s65. Nicholls is relevant when advising clients as to the ramifications of the client’s partner or relative being excused from giving evidence.

In DPP v Easwaralingam,7 the VSCA disagreed with a magistrate’s finding that it was an abuse of process for the prosecution to seek to rely on s65 to get the complainant’s statement into evidence when the prosecution had been refused an adjournment which it sought because the complainant was ill. The VSCA considered the complainant “unavailable” and that the magistrate erred in not considering the application of s65. Like Darmody, Easwaralingam is relevant when advising clients whether to oppose an adjournment application by the prosecution.

In DPP v BB and QN,8 a kidnapping case, the complainant died after committal. His committal evidence was admissible under s65(3), but the trial judge excluded it under s137 (the equivalent of the Christie discretion9) because in her view (a) the magistrate unduly restricted cross-examination of the complainant and (b) the interpreter, who translated the complainant’s answers from Vietnamese, at times interjected rather than translated.

Her Honour was also concerned about the jury’s ability to assess the complainant’s credibility and reliability via the committal recording since he had given evidence through an interpreter. The VSCA indicated (at [22]-[30]) that none of her Honour’s concerns warranted the exclusion of the evidence and any unfair prejudice to the accused could be cured by direction. BB and QN has broad implications when advising clients at both the committal and trial phases of a criminal proceeding.

Tendency and coincidence

The Act provides that tendency (s97) and coincidence (s98) evidence must have significant probative value to be admissible. If the tendency or coincidence evidence is adduced by the prosecution, its probative value must also substantially outweigh the “danger of prejudicial effect” (s101).

Tendency and coincidence evidence is a complex topic. What follows alerts practitioners to the key points in the leading Victorian decisions.

Assessing probative value

There are conflicting authorities in other UEL jurisdictions as to whether a court assumes the reliability of tendency and coincidence evidence when assessing its probative value.10 In JLS v R11 (at [18] and [26]) and PG v R12 (at [62] and [76]), the VSCA endorsed the dominant NSW approach, which assumes the reliability of the evidence, unless no reasonable jury could accept it.13

Although arguably inconsistent, PNJ v DPP14 (at [26]-[29]) stipulates that in sex cases involving multiple complainants, the court must consider whether there is a real possibility of joint concoction or contamination in assessing the probative value of tendency or coincidence evidence. In PG (at [77]) the validity of this additional “exception” was questioned but not determined.

The importance of similarities

Similarities between, on the one hand, the offence in question and/or its surrounding circumstances and, on the other, the tendency or coincidence evidence are central to whether the evidence has significant probative value.15 If such similarities reveal a “common modus operandi” or “pattern of conduct” or “underlying unity”, significant probative value will be established.16

Irrelevant similarities

In Victoria, not all similarities are relevant to whether the test of significant probative value is satisfied. According to PNJ (at [19]), “features of the offending which reflect circumstances outside of the accused’s control” are irrelevant. In that case, the accused was a youth officer at a juvenile detention centre who allegedly sexually abused some detainees.

The fact that all the complainants said they were abused by him in bedrooms at the centre and were of a similar age were circumstances “outside his control”, according to the VSCA, which added (at [19]) that such similarities “simply reflected the setting in which the offending occurred”: the prosecution, it said, needed to identify something distinctive in the way the accused took advantage of that setting.17

This approach is difficult to reconcile with the subsequent case of GBF v R18 (at [32]) where the setting of some of the misconduct (the accused’s workplace) was determinative of the VSCA’s conclusion that the accused’s tendency to grab the breasts of co-workers had significant probative value.


In CGL v DPP,19 the VSCA indicated (at [40]) that the greater the degree of specificity with which relevant similarities can be identified, the more likely it is that the evidence will have significant probative value. The need for specificity has been stressed, not only in relation to the factual similarities, but with regard to any asserted tendency (such as in GBF a tendency for the accused to “act upon a sexual attraction” to co-workers was considered too general but a tendency for him to grab the breasts of co-workers at work was sufficiently specific).20

However, the decision of the NSW Court of Criminal Appeal (NSWCCA) in R v PWD,21 which discussed PNJ, suggests that the VSCA may have overemphasised the need for specificity. The NSWCCA noted (at [64]) that “closely similar behaviour” is not required and the Court found nothing wrong with a quite generally expressed tendency (that is, to engage in “sexual activity” with his students).

The NSWCCA also suggested (at [79]) that a lesser degree of similarity may suffice in respect of tendency evidence since the tendency rule (s97), unlike the coincidence rule (s98), makes no express reference to “similarities”. Whether the VSCA will moderate its stance in light of PWD remains to be seen.

Remarkable or distinctive features

Although it is not necessary to show “striking similarities”,22 it may be necessary to establish “remarkable” or “distinctive” features to demonstrate significant probative value (a fine line).23

In NAM v R,24 evidence that the accused would insert or request the insertion of a banana in his anus met the test. But “commonplace” instances of the type of offending in question (such as allegations of masturbation and fellatio) have been described as “sadly, unremarkable”25 and have not met the test. However, there is no single criterion for establishing significant probative value (PNJ at [12]). In NAM (at [27]), GBF (at [27]) and PG (at [69]-[71]), the VSCA recognised in the context of multi-complainant sex cases that there may be a sufficient pattern of conduct or underlying unity, even without remarkable or distinctive features.

Further, in a single complainant sex case where the prosecution relies on evidence of some acts by the accused against the complainant (whether charged or uncharged) as tendency evidence to prove a particular charged act, there is no need for anything remarkable or distinctive about the acts in question, according to JLS (at [13]).

Prejudicial effect

If tendency or coincidence evidence which has significant probative value is adduced by the prosecution, it must substantially outweigh any “prejudicial effect” it may have (s101). “Prejudicial effect” does not refer to evidence which simply makes the prosecution case stronger: there must be a danger that the jury will misuse or overvalue the evidence.26 A jury may misuse evidence if it is likely to excite bias against the accused which cannot be cured by direction (e.g. inflammatory photographs). A jury may overvalue evidence if it cannot be tested or challenged.

On appeal

PNJ (at[15]-[16]) supports the view that an appellate court considers the matter afresh when reviewing a trial judge’s ruling under ss97, 98 and 101: the court does not have to find error by the trial judge of the kind described in House v The King27 (taking into account irrelevant considerations or failing to take into account relevant considerations).

Discretionary and mandatory exclusions

Practitioners wishing to challenge the admissibility of evidence will often fall back on ss137 and 138.

Section 137 is the equivalent of the Christie discretion,28 although it is expressed as a rule.The burden is on the defence to satisfy the court that the probative value of the prosecution evidence is outweighed by the danger of unfair prejudice.29 If it does, the court must exclude the evidence. The cases in relation to assessing whether evidence has significant probative value for the purposes of ss97 and 98 strongly support the view that, in relation to s137, the court assumes the reliability of the evidence in assessing its probative value.30

There are conflicting views in the decisions of single justices.31 Again, evidence which simply strengthens the prosecution case does not create a “danger of unfair prejudice”: there must be a danger that despite directions the jury will misuse or overvalue the evidence.32

Section 138 is the equivalent of the Bunning v Cross discretion,33 although it too is expressed as a rule. The leading Victorian case on s138 is R v MD,34 which indicates that there has been no significant change, save that if the accused satisfies the court that the evidence was obtained illegally or improperly, the burden shifts to the prosecution to justify admissibility.

The VSCA has not yet settled whether the principles in House v The King apply to the review of rulings under ss137 and 138 but MD (at [27]-[30]) gives strong support for applying such principles. Practitioners must bear this in mind when advising clients on the prospects of successfully appealing an adverse ruling under ss137 or 138.

CHRISTOPHER BEALE has practised as a criminal advocate for many years and lectured in criminal law at Monash University. In 2007, he was appointed a Crown Prosecutor and in 2009 started teaching uniform evidence law at the Victorian Office of Public Prosecutions. In April 2011, he will return to the Victorian Bar. GLENN BARR is a principal solicitor with the Victorian Office of Public Prosecutions. For two years he has been managing the implementation of the Evidence Act 2008 and Criminal Procedure Act 2009 and was involved in all interlocutory appeals in the Victorian Court of Appeal in 2010.

The numbers in square brackets in the text refer to the paragraph numbers in the judgment.

1. All section references in the text are to this Act.

2. [2010] VSC 114.

3. Note 2 above, at [19]-[29], [48], [53].

4. See the Act’s Dictionary, Part 2, cl 4(1)(a)-(g).

5. [2010] VSCA 41.

6. [2010] VSC 397.

7. [2010] VSCA 353 at [42]–[44].

8. [2010] VSCA 211.

9. R v Christie [1914] AC 545.

10. See Odgers,Uniform Evidence Law (9th edn), Law Book Company, at [1.3.6680] and [1.3.14760].

11. [2010] VSCA 209.

12. [2010] VSCA 289.

13. See also NAM v R [2010] VSCA 95 at [23].

14. [2010] VSCA 88, following AE v R [2008] NSWCCA 52 at [44].

15. See GBF v R [2010] VSCA 135 at [27] and PNJ v DPP [2010] VSCA 88 at [8].

16. CGL v DPP [2010] VSCA 26; (2010) 24 VR 486 at [29]-[30].

17. See also NAM v R, note 13 above, at [8]-[9].

18. [2010] VSCA 135.

19. [2010] VSCA 26; (2010) 24 VR 486.

20. CGL, note 19 above, at [36]; GBF, note 15 above, at [31].

21. [2010] NSWCCA 209.

22. CGL, note 19 above, at [28]–[29]; CW v R [2010] VSCA 288 at [22].

23. PNJ v DPP, note 14 above, at [22]; NAM, note 13 above, at [10] and [13]. In GBF, note 15 above, at [29] and [32] reference was also made to “unusual” features.

24. Note 13 above.

25. PNJ v DPP, note 14 above, at [21]–[22].

26. GBF, note 15 above, at [30] which refers in a footnote to the helpful explanation in R v Ford [2009] NSWCCA 306 at [56]; see also JLS [2010] VSCA 209 at [31]-[32].

27. (1936) 55 CLR 499.

28. R v Christie, note 9 above.

29. R v DG [2010] VSCA 173 at [54].

30. JLS, note 26 above, at [18] and [26]. See also NAM, note 13 above, at [23].

31. McRae, note 2 above, at [38]; Cf R v Middendorp [2010] VSC 147 at [23].

32. Darmody [2010] VSCA 41 at [40]-[41]; McRae, note 2 above, at [50].

33. (1978) 141 CLR 54.

34. [2010] VSCA 233.


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