Discretionary and mandatory exclusions

Evidence Act 1995, Pt 3.11 (ss 135–139)

[4-1600] General

The original heading (“Discretions to exclude evidence”) was amended to recognise that Pt 3.11 includes s 137 (Exclusion of prejudicial evidence in criminal proceedings) which involves a balancing exercise, it does not involve the exercise of a discretion: Em v The Queen (2007) 232 CLR 67 at [95]). See also [4-1630].

The Evidence Act nominates unfairness as the test for the exclusion of evidence, or limitation on the use to be made of evidence, in a number of places:

  • s 53 requires the trial judge to take into account the danger that a demonstration, experiment or inspection might be unfairly prejudicial

  • s 90 gives a discretion to exclude prosecution evidence of an admission where, in the circumstances in which the admission was made, it would be unfair to the defendant to use it

  • s 114 presumes that it would not have been reasonable to have held an identification parade if it would have been unfair to the defendant to do so

  • s 135 gives a discretion to exclude any evidence where its probative value is substantially outweighed by the danger that it might be unfairly prejudicial to a party

  • s 136 gives a discretion to limit the use to be made of any evidence where there is a danger that a particular use of that evidence might be unfairly prejudicial to a party

  • s 137 requires the exclusion of any prosecution evidence where its probative value is outweighed by the danger of unfair prejudice to the defendant,

  • s 192 requires a court to take into account, when granting leave pursuant to various provisions the Evidence Act, the extent to which to grant leave would be unfair to a party or a witness.

Sections 90, 114, and 192 do not refer to unfair prejudice, whereas ss 53 and 135–137 do.

[4-1610] General discretion to exclude evidence — s 135

The term “probative value” is defined by the Dictionary to the Evidence Act as meaning “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”, which takes up the definition of “relevant evidence” in s 55, which in turn reflects the common law as stated, for example, in Martin v Osborne (1936) 55 CLR 367 at 375–376: Goldsmith v Sandilands (2002) 76 ALJR 1024 at [2] n 2; Washer v Western Australia (2007) 234 CLR 492 at [5] n 4. See also HML v The Queen (2008) 235 CLR 334 at [5] n 10, [155] n 141, [423].

When determining the probative value of evidence under s 135 (as in relation to ss 97, 98, 101, 103 and 137), the issues of the credibility and reliability of the evidence should not be taken into account except where those issues are such that it would not be open to a jury to conclude that the evidence could rationally affect the assessment of the probability of the existence of a fact in issue: Adam v The Queen (2001) 207 CLR 96 at [60]; R v Shamouil (2006) 66 NSWLR 228 at [61]–[65]; R v Sood [2007] NSWCCA 214 at [38].

Logically, the first step is to identify the disputed fact in issue to which the evidence is said to be relevant, and then to consider the role that that piece of evidence, if accepted, would play in the resolution of that disputed fact: R v Mundine (2008) 182 A Crim R 302 at [33]–[34]. It would be a fundamental error on the part of the judge not to conduct “a systematic analysis” of the probative value of the evidence: ASIC v Rich [2005] NSWCA 152 at [163]; James Hardie Industries NV v ASIC [2009] NSWCA 18 at [32]. A slightly differently stated requirement, that the judge should make “some comparative analysis” of the probative value and the danger of unfair prejudice involved, was put forward in Sydney South West Area Health Service v Stamoulis [2009] NSWCA 153 at [49].

The weighing of probative value against the danger that the evidence may be unfairly prejudicial to a party has an inherent difficulty, in that it involves the weighing of essentially incommensurable factors; nevertheless, the judge must analyse the probative value of the evidence against which the degree of prejudice and the possibility of confusion and waste of time must be weighed: ASIC v Rich, above, at [164]. See also Pfennig v The Queen (1995) 182 CLR 461 at 528 (McHugh J) (a common law case).

The requirement in s 135 that the probative value of the evidence substantially outweighs its prejudicial effect has been described as one where the probative value of the evidence “well” outweighs that prejudicial effect: R v Clark (2001) 123 A Crim R 506 at [163].

Where the process of inference or reasoning that leads to the conclusion expressed has not been stated or revealed in a way that enables the conclusion to be tested and a judgment formed as to its reliability and the weight to be given to it, the evidence would normally be rejected under s 135: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2009] FCAFC 8 at 109.

The risk that an expert based his opinion on material that should have been excluded (identified by the trial judge as a risk to which s 135 related) is relevant to the credit of the expert, but its impact on the formation of the opinion has also to be assessed, and such an assessment must include the degree to which any particular opinion was likely to have been formed on the basis of the excluded material, and not on an assumption that the use of the excluded materials necessarily diminished the probative value of those opinions: ASIC v Rich at [168]–[179]. Authorities supporting the reliance by the trial judge on s 135 as justifying the exclusion of opinion material because of the risk that the evidence may be unfairly prejudicial to the other party are identified in Pt 3.3 Opinion, at [4-0620].

The operation of s 135 does not appear to be limited to the exclusion of evidence made admissible by the Evidence Act, and accordingly s 135 may be applied to evidence made admissible by the common law: Evans v The Queen (2007) 235 CLR 521 at [113].

Unfair prejudice Evidence is not unfairly prejudicial merely because it makes it more likely that the defendant will be convicted; prejudice will be unfair if there is a real risk that the evidence will be misused by the jury in some unfair way: R v BD (1997) 94 A Crim R 131 at 139; Papakosmas v The Queen (1999) 196 CLR 297 at [91]–[92]; Ainsworth v Burden [2005] NSWCA 174 at [99]; Gonzales v R (2007) 178 A Crim R 232 at [70]; R v Ford (2010) 201 A Crim R 451 at [56]; Doklu v R (2010) 208 A Crim R 333 at [45]. The test of a danger of unfair prejudice is not satisfied by the mere possibility of such prejudice; what is required is a real risk of unfair prejudice by reason of the admission of the evidence: R v Lisoff [1999] NSWCCA 364 at [60]; R v Clark, above, at [233].

An example of the risk that evidence will be misused in some unfair way is to be found in R v SY [2004] NSWCCA 297, in which the accused was charged with sexual intercourse without consent with a person under the age of sixteen. The complaint was not made for many years after the events were alleged to have occurred and, when it was made and the fact (but not the content) of the complaint was communicated to the accused, he told the complainant “I’ll never remember, you know, because I was on drugs”. This evidence was led by the prosecution at the peremptory direction of the judge, who appears to have left it to the jury as constituting an implied admission. The appeal was upheld; the interference by the judge in the conduct of the prosecution was held (at [17]) to have caused the trial to miscarry, but it was also held (at [26]) that it was incumbent upon the trial judge to direct the jury that they were not to use the evidence adversely to the accused in the sense that it showed that he was a person of bad character and either more likely to lie or more likely to commit the offences with which he had been charged. His failure to do so was considered to be of such significance as to justify the grant of leave to the appellant to raise it as a ground of appeal notwithstanding that no such direction had been sought at the trial (at [26]).

Few applications based on s 135 to exclude evidence led by the accused in a criminal trial — where its purpose is merely to raise a reasonable doubt in relation to the Crown case (and thus is unrelated to any burden of proof) — should be successful: R v Taylor [2003] NSWCCA 194 at [130].

In R v Cakovski (2004) 149 A Crim R 21, the appellant was charged with the murder of a man (Eugene Victorovich Petroff) whom he had intended to rob by stabbing him with a knife he had been carrying. He claimed, inter alia, that he had killed in self-defence in the face of a threat made by Petroff that he would kill him. The trial judge rejected as tendency evidence the fact that Petroff had in 1978 shot dead three persons by shooting them in retaliation for “ripping him off” in a drug deal. Evidence was adduced in the cross-examination of a Crown witness of an incident that occurred a few hours before the stabbing in the present case when Petroff had, under the influence of alcohol, attacked the witness at a reunion by attempting to gouge his eyeball out, but further cross-examination of the witness that Petroff had said to him “How would you like a knife through your head? I’m going to kill you like I killed the other three people” was rejected. Both lines of questioning were rejected as being too remote in time, and because their probative effect was outweighed by the difficulties for the Crown in reproducing the factual circumstances in order to analyse the comparative circumstances of the two killings. The Crown had submitted to the jury that the evidence of the appellant of the threat to kill him was a concoction.

It was held on appeal (at [36], [56]–[57], [70]) that the 1978 murders had both significant and substantial probative value as making it less improbable that Petroff had threatened to kill the appellant, a threat which was otherwise on its face “extremely” improbable, and more so when reference had been made to those killings just a few hours beforehand when threatening the Crown witness. Hodgson JA also held (at [39]) that the evidence of the Crown witness of the attack by Petroff some hours earlier could have had some relevance and was admissible as demonstrating Petroff’s tendency to act violently when affected by alcohol, but the absence of notice of the accused’s intention to lead the tendency evidence (required by s 97(1)) meant that a detailed investigation of the 1978 murders was necessary; the material was therefore correctly rejected as being relevant to the issue of tendency. Hulme J held (at [56]) that the evidence was admissible only on the first of those bases, and (at [58]–[60]) that it was inadmissible as tendency evidence because there was insufficient material before the court to disclose what were the operative factors that inspired the 1978 killings. (It appears that the court’s attention was not drawn to its earlier decision concerning those killings, in R v Petroff (1980) 2 A Crim R 101 at 103.) Hidden J held (at [71]) that the evidence was admissible as tendency evidence and that the difficulty for the Crown in the absence of notice resulting from the remoteness in time of the 1978 events would not have justified the exercise of discretion against an accused pursuant to s 135.

It should be noted that no reference was made by the Court of Criminal Appeal in R v Cakovski to s 101(2) (probative value of tendency evidence must substantially outweigh any prejudicial effect). In R v Nassif [2004] NSWCCA 433, where Simpson J (with whom Adams J and Davidson AJ agreed) pointed out (at [59]–[60]) that, if the issue posed by s 101 is answered adversely to the defendant, it is impossible to see how s 135 or s 137 could have a different result. See also R v Ngatikaura (2006) 161 A Crim R 329, discussed under Tendency evidence, below. It is suggested that the considerations which led the judges in Cakovski to their different conclusions would be equally applicable under s 101. It has been stated that Cakovski contains no binding or persuasive statement of principle in relation to tendency evidence: Elias v R [2006] NSWCCA 365 at [31].

In the NSW trial of R v Burrell in 2006 for the 1997 murder of Kerry Whelan, the Crown case was a circumstantial one and the accused sought to put forward, as an explanation consistent with his innocence of her murder, “running sheets” compiled by the police of statements made to them by a Mrs Shaw (a former secretary of Mr Whelan) that Mr Whelan’s father was a policeman and was the contact between Mr Whelan and the criminal underworld in Victoria in 1967, 30 years before the murder charged, and that they may have been responsible for her murder. The trial judge (Barr J) rejected the evidence on the basis that it would be unfair to the Crown to have to respond to hearsay evidence of the most tenuous kind so long after the alleged events and which had no probative value: R v Burrell (unrep, 23/3/2006, NSWSC) at [7]–[8].

Evidence relevant to case against one but not all defendants Where several parties are involved, and evidence is relevant to the case against some defendants but not against other defendants, there is no prejudice to those other defendants if the evidence is admitted; the previous common law practice of admitting evidence against only one or more defendants has been superseded: ASIC v Macdonald [2008] NSWSC 995 at [9]–[14], following Silvia v FCT [2001] NSWSC 562 at [5]–[7]. Such a practice may nevertheless be followed where the use of such evidence against one or more defendants has been limited pursuant to s 136: ASIC v Macdonald at [17]–[18], following ASIC v Vines (2003) 48 ACSR 282 at [22]–[26].

Section 135(a) — “a party” The expression “unfairly prejudicial to a party” in s 135(a) of the Act, the word “party” extends to and includes a co-accused in a joint criminal trial: McNamara v The King [2023] HCA 36 at [78]; [83], [91], [113]. There are strong reasons of principle and policy in support of a judicial discretion to exclude admissible evidence of a co-accused where the probative value of that evidence to that co-accused was outweighed by its prejudicial effect on another co-accused: McNamara v The King at [51]–[52].

Defamation proceedings Where a defamation action is based on the broadcast of statements made on radio or television, a transcript of what was said is either irrelevant to the meaning conveyed or prejudicial in a jury case because of the difficulty a jury would have in determining the effect of what was said on viewers or listeners without access to such a transcript: Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448 at 472-473; Griffith v ABC [2003] NSWSC 483 at [13]–[14]; Nuclear Utility Technology & Environmental Corporation Inc (Nu-Tec) v Australian Broadcasting Commission (ABC) [2010] NSWSC 711 at [4]–[12].

Procedural unfairness Unfair prejudice may also arise in both criminal and civil proceedings from procedural considerations, so that an inability to cross-examine on hearsay evidence relating to a crucial issue in the litigation may be a relevant and important (though not necessarily a crucial) issue in the exercise of the discretion granted by s 135: Bakerland Pty Ltd v Coleridge [2002] NSWCA 30 at [51]–[55]; R v Suteski (2002) 56 NSWLR 182 at [126]–[127]; Longhurst v Hunt [2004] NSWCA 91 at [44]–[49]; Galvin v R (2006) 161 A Crim R 449 at [40]. The same cases are authority for the proposition that the evidence is not prejudicial merely because it supports the opponent’s case; see also Leybourne v Permanent Custodians Ltd [2010] NSWCA 78 at [82]. In Singh v Newridge Property Group Pty Ltd [2010] NSWSC 411 at [21], Biscoe AJ took into account the shortness of the notice given that the evidence would be given made it impracticable for the opposing party to investigate and marshal the evidence to rebut it.

The prejudice to the defendant involved in s 135 (and s 137) is not the simple fact that the evidence may advance the Crown case or weaken the defence case. What is meant is that the evidence would damage the defence case in some unacceptable way: R v Lockyer (1996) 89 A Crim R 457 at 460; R v Serratore (1999) 48 NSWLR 101 at 109 ([31]); R v Suteski, above, at [116]; Tan v R (2008) 192 A Crim R 310 at [93].

It has been held that, if the impossibility of challenging the veracity of hearsay statements by non-witnesses were generally accepted — either alone or as a significant factor — as justifying the exclusion of the evidence pursuant to s 135, the result would to a large extent be to write the hearsay exceptions out of the Evidence Act, and thus contrary to the legislative intention: R v Clark (2001) 123 A Crim R 506 at [164], [239]. However, each case needs to be examined in relation to the character of the evidence involved and the nature or strength of the potential prejudice to the defendant: R v Suteski at [126]–[127].

The failure to provide evidence prior to the hearing or even to adduce it in chief, so as to enable it to be properly considered and responded to by the other party, has been held to be unfairly prejudicial to the other party when raised for the first time in re-examination, and it was rejected on that basis: Barrett Property Group Pty Ltd v Metricon Homes Pty Ltd (2007) 74 IPR 52 at [161] (the issue did not arise on appeal: Metricon Homes Pty Ltd v Barrett Property Group Pty Ltd [2008] FCAFC 46).

The prejudicial effect of unfairly prejudicial evidence may be limited by a direction pursuant to s 136 limiting the use to which the evidence may be put by the jury: TKWJ v The Queen (2002) 212 CLR 124 at [47].

Proof of radio and television broadcasts There has been disagreement in first instance judgments as to the admissibility of a transcript of a radio or television broadcast in defamation proceedings based on that broadcast.

Prior to the Evidence Act 1995, the NSW Court of Appeal had held that such a transcript was likely to distract the jury in its task of assessing the meaning conveyed where there was no difficulty in understanding, respectively, a sound or video recording of such a broadcast, in accordance with the general principle that the meaning of such a broadcast conveyed to the ordinary, reasonable listener or viewer (who hears or views the broadcast only the once) is in many cases a matter of impression: Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448 at 472G–473E, 474B.

Since the Evidence Act 1995, in Goldsworthy v Radio 2UE Sydney Pty Ltd [1999] NSWSC 290, Dunford J held that such a document would only have distracted the jury from that task. In Vacik Distributors Pty Limited v Australian Broadcasting Corporation (unrep, 4/11/99, NSWSC) Sperling J, it was held that an accurate transcript of the broadcast was an aid rather than a distraction from the jury’s proper performance of that task. In Purcell v Cruising Yacht Club of Australia [2001] NSWSC 926, Levine J (at [6]) referred to the real danger of the jury being distracted by the use of a transcript by a jury where the words used, which are the foundation of the action, are recorded. In Griffith v Australian Broadcasting Corporation [2003] NSWSC 483, Levine J held that, where there is an accurate recording of the radio or television broadcast, there was no issue in the case to which such a transcript was relevant within the meaning of s 55 as it is the impression which the transient words conveyed to the listener or viewer which is important. In Nuclear Utility Technology (Nu-Tec) v Australian Broadcasting Corporation [2010] NSWSC 711, McCallum J held, at [12], that the principle stated by the Court of Appeal in Radio 2UE Sydney Pty Ltd v Parker, above, and followed in Goldsworthy, above, and Griffith, above, remained appropriate under the Evidence Act.

It is suggested that the decisions of Dunford J, Levine J and McCallum J are clearly correct, and that of Sperling J should not be followed, as the reasons given by the Court of Appeal in Radio 2UE Sydney Pty Ltd v Parker are equally applicable under the Evidence Act.

On the other hand, in interlocutory proceedings seeking to restrain the publication of defamatory matter, Harrison J emphasised that an objection to the use of a transcript of a telecast should identify errors that it is said to contain rather than rely on a hypothetical possibility of prejudice giving rise to relief under s 135: Hatfield v TCN Channel Nine Pty Ltd [2010] NSWSC 161 at [67]–[71] (this ruling was not in issue in the subsequent appeal: Hatfield v TCN Channel Nine Pty Ltd (2010) 77 NSWLR 506).

Misleading or confusing A commonly arising example of evidence likely to mislead or confuse is that of the raw percentage results of DNA tests, which necessarily require complicated explanations from expert witnesses: see, for example: R v GK (2001) 53 NSWLR 317 at [60], [100]; R v Galli (2001) 127 A Crim R 493 at [72]. Expert DNA evidence itself, however, if properly formulated and explained by reference to the available evidence, is no more essentially complex or difficult than questions of fact that are routinely, and correctly, left to juries in criminal cases: R v Lisoff [1999] NSWCCA 364 at [55].

Considerable caution should, however, be exercised in relation to the way in which DNA evidence is explained to juries; the High Court has granted special leave to appeal from the decision of the NSW Court of Criminal Appeal in Aytugrul v R (2010) 205 A Crim R 157, in which the majority judgment dismissed an appeal based on the way in which the DNA evidence was described by the Crown’s expert witness as the particular percentage of the relevant community who would not be expected to have that DNA profile (the “exclusion percentage”), rather than as the number of persons in that community who would be likely to have that DNA (the “frequency ratio”) as had been suggested in R v Galli: Aytugrul v The Queen [2011] HCATrans 238 (2 September 2011).

Documents in the Japanese language (translated into English with the warning that the original was written in anecdotal, colloquial and often ambiguous language and assumes a large body of knowledge which is unidentified) would be rejected pursuant to s 135: Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 654 (Barrett J) at [19]–[24].

Undue waste of time In Koninklijke Philips Electronics NV v Remington Products Australia Pty Ltd (2000) 100 FCR 90 at [21], it was suggested that this provision reflected the common law stated by Professor Julius Stone in Evidence: Its History and Policies (revised by W Wells), Butterworths, Sydney, 1991 at 60–62 — that the law has always excluded the use of evidence which, though possibly relevant, would involve a waste of the court’s resources out of all proportion to the probable value of the results. See also DF Lyons Pty Ltd v Commonwealth Bank of Australia (1991) 28 FCR 597 at 478.

The defendant, late in the hearing of a long civil case, sought to place substantial reliance on a document which it had failed to produce in answer to a subpoena well prior to the trial, in circumstances described as unexplained and flagrant misconduct on its part. The document on its face could have had considerable significance in defeating the plaintiff’s claim, but a lengthy adjournment would have had to be granted to the plaintiff to investigate the document, which required substantial interpretation and which, as a result of that investigation, may not have had the significance the defendant claimed. It was held that the trial judge was entitled to refuse to admit the document on the basis that its admission might result in an undue waste of time which substantially outweighed its probative value: Dyldam Developments Pty Ltd v Jones [2008] NSWCA 56 at [49]–[52].

Expert evidence about a matter which is known to all would normally be a waste of time and excluded pursuant to s 135: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2007) 239 ALR 662 at [55].

Unreasoned opinion evidence Evidence of opinion where the witness has not stated in his or her evidence-in-chief the grounds and reasoning that led to the formation of the opinion will normally be rejected pursuant to s 135 except in a straightforward and uncomplicated case: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2009) 174 FCR 175 at [108]–[109]. The refusal of special leave to appeal ([2007] HCA Trans 468) did not relate to this issue.

Tendency evidence Where tendency evidence is adduced (with the intention that it be used as such), ss 97 (significant probative value) and 101(2) (probative value substantially outweighs any prejudicial effect) provide the tests for the admission of tendency evidence, and there remains no room for the application of either s 135 (probative value substantially outweighs danger of unfair prejudice) or s 137 (probative value outweighed by danger of unfair prejudice): R v Ngatikaura (2006) 161 A Crim R 329 at [14] (Beazley JA), [68]–[71] (Simpson J). The concurring judgment by Rothman J does not follow quite the same path as that followed by Simpson J and Beazley JA (who dissented only on the basis that the evidence was not tendency evidence). No reference was made in Ngatikaura to the court’s earlier decision in R v Cakovski discussed under the heading Unfair prejudice above (but where no consideration was given to s 101). It is suggested that the considerations which led the judges in Cakovski to their different conclusions would be equally applicable under s 101. See also R v Nassif [2004] NSWCCA 433 at [59]–[60] under the same heading.

In Collaroy Services Beach Club Ltd v Haywood [2007] NSWCA 21, it was held (at [49]) that a discretionary decision made by a trial judge to exclude evidence pursuant to s 135 would be reviewed on appeal in accordance with the ordinary rules in relation to discretionary decisions, as stated in House v The King (1936) 55 CLR 499 at 504–505.

[4-1620] General discretion to limit use of evidence — s 136

This section applies to evidence to which objection is taken under either s 135 or s 137. Its use is one of the ways the prejudicial effect of evidence to which objection is taken may be overcome or at least reduced to the extent that the probative value of the evidence is no longer outweighed by the danger of its unfair prejudice (s 137) or substantially outweighed by that danger (s 135).

The exercise of the s 136 discretion depends to a substantial extent upon whether objection is taken to the evidence in question, but there may be a case where the possible exercise of this discretion is so obvious that the trial judge should have had this discretion in mind: Cvetkovic v R [2010] NSWCCA 329 at [293]; Cvetkovic v The Queen [2011] HCASL 133 (8 June 2011).

The prejudicial effect of hearsay evidence where the maker of the hearsay is not available for cross-examination (see Procedural fairness under [4-1610]) may be reduced — where there is a genuine dispute as to the facts stated — by limiting the use to which the evidence is put by excluding its operation under s 60 to establish the truth of what was said: Quick v Stoland Pty Ltd (1998) 87 FCR 371 at 621, 625. That decision was distinguished in a dissenting judgment in Rhoden v Wingate [2002] NSWCA 165 at [121] on the basis that much of the essential material on which the relevant opinion had been based was already in evidence. However, that does not appear to have been the basis on which the judgment in Quick v Stoland Pty Ltd rested.

The discretion to limit the use of evidence will more readily be exercised where the proceedings are to be tried by a jury, since the weight to be attributed by a judge to evidence untested by cross-examination would be less than that attributed by a jury: Seven Network Ltd v News Ltd (No 8) [2005] FCA 1348 at [21]; Australian Securities and Investments Commission v Macdonald [2008] NSWSC 995 at [23].

When the use of evidence is restricted because of the danger that it may be unfairly prejudicial to a party, a strong direction to the jury is needed, both at the time of the tender and in the summing-up, as to the limited use to which the evidence could be put: Ainsworth v Burden [2005] NSWCA 174 at [103].

Where the author of a document sought to be tendered elects not to give evidence, and thus cannot be cross-examined, it is the fact that he will not be cross-examined, and not the reason for it, which is relevant to the issue posed by s 136; the issue is (as posed by McHugh J in Papakosmas v The Queen (1999) 196 CLR 297 at [91]) whether there is a real risk that the tribunal of fact will misuse the evidence in an unfair way in the absence of cross-examination: Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 654 at [17]–[21], although acknowledging (at [20]) that the Court of Appeal has said, in Bakerland Pty Ltd v Coleridge [2002] NSWCA 30 at [55], that the absence of cross-examination can be relevant to the issue to be determined in accordance with s 136.

Hearsay It is the effect of s 60 of the Evidence Act (which makes evidence, admitted for a purpose other than proof of the truth of the fact asserted, proof of the truth of that fact) that makes it important that a limitation be imposed pursuant to s 136 on the use to which the evidence may be put where that fact is controversial in the proceedings: Guthrie v Spence (2009) 78 NSWLR 225 at [75]. This is so, no matter how remote hearsay the evidence may be and irrespective of whether the source of the information is disclosed: Roach v Page (No 11) [2003] NSWSC 907 at [37]–[38], [74]; Hamod v State of NSW (No 10) [2008] NSWSC 611 at [4] et seq.

Statements made by the complainant in a sexual assault case, both to the police very shortly after the events in issue and to the doctor who examined her within three hours, should be permitted as evidence of their truth: Thorne v R [2007] NSWCCA 10 at [41].

Section 136 has been considered in Fulham Partners LLC v National Australia Bank Ltd [2013] NSWCA 296. The respondent sought to resist a claim by the appellant that it had validly secured charges over property owned by Idoport Pty Ltd, a company later placed in liquidation. The principal issue was whether the respondent’s consent was necessary to the validity of the charges. A subsidiary issue was whether certain internal emails of the respondent and letters sent to Idoport (withholding consent) were admissible. It was held that the documents were admissible, not only to demonstrate how and when the respondent had rejected the request for consent, but also as evidence of the reasons relied upon in making that decision. The Court of Appeal rejected the submission that, in the absence of a limitation order, unfair prejudice would arise to the appellant.

Verified pleadings In Crowe-Maxwell v Frost (2016) 91 NSWLR 414, the CCA held that in a given case, statements made in verified pleadings constitute admissible evidence. It is not correct to say that verified pleadings can never be evidence. In the instant case, a company liquidator sought to recover monies alleged to have been paid by the company for the director’s benefit. The director appeared in person, gave evidence and was cross-examined. The trial judge allowed portions of the verified defences as evidence in the proceedings. The liquidator’s appeal was dismissed.

[4-1630] Exclusion of prejudicial evidence in criminal proceedings — s 137

Whereas both ss 135 and 136 use the word “may”, s 137 uses the word “must”. The mandatory terms of s 137 are more consistent with an evaluative judgment than with the exercise of a judicial discretion; the section involves a balancing exercise and, once that exercise has been performed, there is no residual discretion: R v Blick (2000) 111 A Crim R 326 at [20]; Rolfe v R (2007) 173 A Crim R 168 at [60]; R v Sood [2007] NSWCCA 214 at [23]; Qoro v R [2008] NSWCCA 220 at [63]. The absence of any discretionary element has been confirmed in the High Court: Em v The Queen (2007) 232 CLR 67 at [95]. If the imbalance has been demonstrated, the trial judge is obliged or bound to exclude the evidence: Em v The Queen at [95], [102].

As minds might reasonably differ in determining the appropriate balance, the Court of Criminal Appeal will reach a different conclusion from that of the trial judge only if it came to the view that the decision was unreasonable or otherwise clearly in error within the principles laid down in House v The King (1936) 55 CLR 499 at 504–505: Louizos v R (2009) 194 A Crim R 223 at [23].

There is no general rule that a judge should reject evidence pursuant to s 137 to which no objection is taken at the trial: FDP v R (2008) 192 A Crim R 87 at [27]–[30], declining to follow Steve v R (2008) 189 A Crim R 68 at [60], preferring the views expressed in R v Reid [1999] NSWCCA 258 at [3]–[5] and Dhanhoa v The Queen (2003) 217 CLR 1 at [18]–[22], [53], [91].

The NSWCCA declined to express a concluded view about this issue in Perish v R (2016) 92 NSWLR 161; [2016] NSWCCA 89. The present position remains as stated in FDP v R, above, although undoubtedly, in a criminal trial there remains an overriding duty on a trial judge to ensure a fair trial and to prevent a miscarriage of justice even where no objection has been made under s 137.

The position is complicated by the NSWCCA’s decision in Tieu v R (2016) 92 NSWLR 94; [2016] NSWCCA 111. The case turned on the failure of a trial judge to consider and respond adequately to the requirements of the credibility provisions of the Evidence Act when permitting the Crown to cross-examine a defendant concerning his criminal convictions. Defence counsel had raised some “concerns” about the proposed cross-examination but had not made specific reference to the requirements of s 137. Nor did the judge in allowing the cross-examination to occur without a specific order granting leave. Basten JA referred to FDP v R but, subject to qualifications, suggested ss 135 and 137 might have application. One of those qualifications related to his careful analysis of the legislation. He concluded tentatively that, as there is a difference between the “probative value” of evidence and the assessment of the credibility of a witness, ss 135 and 137 may not have application to the issues under s 104(2) and (4). He declined to express a final opinion on the matter. Neither McCallum not Davies JJ addressed the issue in detail. Justice McCallum assumed that s 137 applied and had not been addressed by the trial judge. Justice Davies thought it may have been applied because trial counsel had raised a general concern with “prejudice”. From a practical perspective, the position remains, at least for the time being, governed by the decision in FDP v R.

A decision by the trial judge under s 137 may be reviewed by an appellate court without the restrictions relating to discretionary judgments: R v Cook [2004] NSWCCA 52 at [38].

Other important distinctions between ss 135 and 137 are:

  • s 135 requires the danger of unfair prejudice to outweigh the probative value of the evidence substantially, whereas s 137 does not; and

  • s 135 encompasses the danger of unfair prejudice against any party, whereas s 137 is directed to unfair prejudice against the accused in a criminal trial.

Relevant to both ss 135 and 137 is the proposition that the issues of the credibility and reliability of the evidence should not be taken into account except where those issues are such that it would not be open to a jury to conclude that the evidence could rationally affect the assessment of the probability of the existence of a fact in issue: Adam v The Queen (2001) 297 CLR 96 at [60]; R v Shamouil (2006) 66 NSWLR 228 at [61]–[65]; R v Sood, above, at [38]: R v Mundine (2008) 182 A Crim R 302 at [33].

The Victorian Court of Appeal held in Dupas v R (2012) 218 A Crim R 507 that R v Shamouil, above, (and like decisions) were wrongly decided and should not be followed. The court held that a judge considering “probative value” of evidence is only obliged to assume that the jury will accept the evidence as truthful but is not required to assume that its reliability will be accepted. See also to like effect: MA v R (2013) 226 A Crim R 575.

However, in R v XY (2013) 84 NSWLR 363, a majority of the five-judge bench declined to overrule R v Shamouil, and held that it should be followed by the courts in NSW. Blanch J did not consider the question, whereas Price J, finding it unnecessary to do so, nevertheless expressed some support for the reasoning in Dupas v R, above. The position in NSW, therefore, remains that in assessing probative value for the purposes of s 137, questions of credibility and reliability, in general terms, are not considered. (For one possible exception in relation to tendency and coincidence evidence, see DSJ v R (2012) 215 A Crim R 349.)

The difference of opinion between the two jurisdictions has now been resolved in the High Court: IMM v The Queen (2016) 90 ALJR 529. The majority of the court agreed with the reasoning in R v Shamouil — in determining the probative value of evidence, the trial judge has no role to play in assessing the credibility or reliability of the evidence. The Evidence Act contains no warrant for the application of tests of reliability or credibility in connection with ss 97(1)(b) and 137. Questions of reliability or credibility, generally speaking, are matters for the jury. The judge may proceed on the basis that the evidence is credible and reliable. The only exception to this approach is in the limited situation where the proffered evidence is inherently incredible, preposterous or fanciful. In that situation, the evidence would fail the threshold requirement of relevance. The Victorian response to the High Court’s decision can be seen in Bayley v R [2016] VSCA 160, a case involving the wrongful admission of identification evidence: see also R v Smith (No 3) [2014] NSWSC 771 per Garling J.

The issue under s 137 is whether the prejudicial effect of the challenged evidence outweighs its probative effect — that is, would the jury give the evidence more weight than it deserves, or would the evidence divert the jurors from their task? This question involves an evaluative exercise, in respect of which judicial minds may differ: R v Arvidson (2008) 185 A Crim R 428 at [34], [46], applying Festa v The Queen (2001) 208 CLR 593 at [51]. See also R v Suteski (2002) 56 NSWLR 182 at [126]; Lodhi v R (2007) 179 A Crim R 470 at [140].

All admissible evidence which has probative force is prejudicial in a colloquial sense, but that is not the sense in which the term is used in the Evidence Act: Festa v The Queen, above, at [22]–[23]; R v Burnard (2009) 193 A Crim R 23 at [89]. The danger of unfair prejudice is typically shown where the evidence may lead a jury to adopt an illegitimate form of reasoning or give the evidence undue weight, notwithstanding that the judge will give the appropriate directions: The Queen v Falzon (2018) 92 ALJR 701 at [42], [45]; R v Yates [2002] NSWCCA 520 at [252]; R v Shamouil, above, at [72]; Qoro v R, above, at [64]. There must therefore be some appreciation of the consequences of any explanation an accused person might be obliged to advance in order to nullify the adverse inferences that would arise from the evidence without that explanation: R v Cook at [37]–[49]. In that case, there had been a voir dire examination in which the appellant sought to explain his flight as the fear of arrest on other (disassociated) serious charges against him rather than a consciousness of guilt of the offence charged. It was held that the trial judge would have to consider the nature of such prejudice in the particular case; where it would demonstrate the guilt of serious offences of a “disturbingly close” relationship with the offence charged, the unfair prejudice may be considered to outweigh the probative value of the evidence.

In The Queen v Falzon (2018) 92 ALJR 701, the High Court held that a majority of the Victorian Court of Appeal erred in their approach to s 137 (identical to s 137 Evidence Act 1995 (NSW)) in finding that evidence of cash found at the respondent’s house was unfairly prejudicial under s 137. The respondent had been convicted of cultivating a commercial quantity of cannabis and drug trafficking contrary to ss 72A and 71AC respectively of the Drugs, Poisons and Controlled Substances Act 1981 (Vic). Cannabis plants and dried cannabis were found during searches of several properties, including two properties associated with the respondent. A smaller amount of cannabis, drug trafficking paraphernalia and a significant sum of cash ($120,800) were also found at the respondent’s home. The High Court held the probative value of the evidence of the cash was high and constituted part of the powerful circumstantial case that the respondent was engaged in a business of cultivating and selling cannabis. Admittedly, the evidence of the cash was prejudicial because it assisted to demonstrate his purpose in possessing the cannabis was for sale, but that is why it was admissible. It was not unfairly prejudicial to a significant extent: at [45 ]. The risk of the jury engaging in tendency reasoning was minimal, especially given that the trial judge had specifically directed the jury that they were not to think that because a person breaks the law in one instance, he is likely to break the law in another: at [45].

In R v Lumsden [2003] NSWCCA 83, Mason P suggested (at [4]–[6]) that the probative value of evidence of other offences closely associated with that charged — such as possession of drugs when the charge is supply — should not be excluded pursuant to s 137, provided that the evidence is not relied on by the Crown for tendency purposes (s 97). Hulme J suggested (at [47]) that such evidence could not be tendency evidence (a proposition on which Mason P reserved his position, at [9]) but that, as it shows that the accused was in the business of selling the relevant drugs at the relevant time, it also tends to prove that the accused in fact sold them as charged (a proposition with which Mason P agreed, at [8]). Smart AJ held that the evidence of possession related to a period too remote in time, and was inadmissible (at [112]), and that it did not tend to establish the charge of supply (at [117]). The appeal was dismissed (Smart AJ dissenting).

Section 137 does not require the evidence to be unambiguous in order to avoid exclusion, provided that the evidence is capable of bearing the interpretation or giving rise to the inference for which the Crown contends: R v SJRC [2007] NSWCCA 142 at [37]–[39].

The use to which the evidence is to be put is the most important consideration in determining the balancing exercise required under s 137. Where hearsay evidence of a deceased witness of conversations with the complainant in a child sexual assault case was tendered, the evidence that she had made a complaint to him was relevant to her credibility, but a direction to the jury that they could not use that evidence as establishing the truth of what was stated resulted in its significance being less than it would otherwise be, and the exclusion of the evidence would not have been required pursuant to s 137: Galvin v R (2006) 161 A Crim R 449 at [28]. However, a different result was required under s 137 in relation to further hearsay “context” evidence of the deceased witness that the accused had confessed to him that he had committed a sexual act (other than one of those charged) on the complainant, which was highly prejudicial tendency evidence: Galvin v R at [28]–[34].

The mere fact that the evidence may, as a practical matter, require the accused to give evidence himself is not an “unfair” prejudice within the meaning of s 137: Hannes v DPP (No 2) (2006) 165 A Crim R 151 at [315]; Rolfe v R (2007) 173 A Crim R 168 at [58].

A practical application of the current use of s 137 (is probative value outweighed by the danger of unfair prejudice) is to be found in R v Ali [2015] NSWCCA 72. The accused was charged with one count of sexual intercourse with a child under 10 years. The trial judge excluded expert evidence relating to DNA testing. Primarily he did so in reliance on s 137. His Honour considered that the probative value of the DNA evidence was undermined because of the possibility of contamination and doubts about the chain of possession.

The CCA said the trial judge’s approach was inconsistent with R v Shamouil. The issues that troubled his Honour should have been left to the jury with appropriate directions. It was their task, not his, to resolve those issues.

Another useful illustration is to be found in The Queen v Dickman [2017] HCA 24. The High Court overturned the Victorian Court of Appeal’s decision. At issue was an identification by a victim based on a photoboard. There had been earlier mistaken identification by the victim. However, the High Court held that even though the probative value of the identification was “low”, it was none the less “a relevant circumstance”. Its exclusion was not required unless that value was outweighed by “the danger of unfair prejudice”. The trial judge had correctly assessed the danger of unfair prejudice as “minimal” and it had adequately been addressed by careful directions.

Context/Relationship evidence Evidence that merely demonstrates a relationship between the complainant and the accused in a sexual assault case does not demonstrate its admissibility. There must be an issue in relation to the charged act or acts which justifies the admission of evidence of other such acts. If there is no such issue, the evidence is admissible only as tendency evidence; if it does not qualify as such, it is irrelevant: DJV v R (2008) 200 A Crim R 206 at [36].

Examples of the application of s 137 Questions by the Crown in re-examination, deliberately for the purpose of undermining character evidence favourable to the accused given in cross-examination, asked the witness to assume that the accused had acted in the way alleged by the indictment and then to say how that affected the assessment of his character she had given. The trial judge directed the jury to disregard the re-examination, and that it was clearly open to them to find that the accused was a person of good character. The re-examination was held on appeal to have raised a false issue and to be both mischievous and impermissible; the re-examination was entirely prejudicial, and should have been rejected under s 137: Hannes v DPP (No 2), above, at [222], [228]; it was improper conduct on the part of the Crown, and in those circumstances the Crown could not invoke rule 4 of the Criminal Appeal Rules to prevent the issue being raised on appeal: at [229]. However, the judge’s direction to disregard the Crown’s conduct was unequivocal and it was appropriate to proceed in a confident expectation that the jury would have obeyed the direction given: at [245]–[250].

Odgers, Uniform Evidence Law (13th edn at [EA.137.60]), has suggested that the previous common practice of limiting if not excluding photographic evidence of injuries to the deceased where a pathologist has already described them orally is now justified under s 137.

Appellate review Notwithstanding the ruling that s 137 requires an evaluative judgment, and that, once the balancing exercise required has been performed, there is no residual discretion (see first paragraph of text under s 137), the decision of the trial judge may be reviewed on appeal only in accordance with House v The King (1936) 55 CLR 499: Vickers v R (2006) 160 A Crim R 195 at [76]; R v SJRC, above, at [34]; Can v R [2007] NSWCCA 176 at [43]; Steer v R (2008) 191 A Crim R 435 at [35].

[4-1640] Discretion to exclude improperly or illegally obtained evidence — s 138

Section 138 is wider in its application than those sections in Pt 3.4 (ss 81–90) which deal with similar situations — s 84 (Exclusion of admissions influenced by violence and certain other conduct) and s 85 (Criminal proceedings: reliability of admissions by defendants) — but many of the decisions on those two sections will provide some assistance in relation to the element of impropriety in s 138. (Section 90 (Discretion to exclude admissions) is directed to the unfair use of an admission rather than the circumstances in which it was obtained.)

Notwithstanding the issue being raised (but not resolved) in ACCC v Pratt (No 2) [2008] FCA 1833 at [14], it is suggested that it is very clear from its context that the word “obtained” in the phrase “improperly or illegally obtained evidence” s 138 means not only “brought into existence” but also “obtained by the party seeking to tender it”.

The core meaning of something done in “contravention” of the law involves disobedience of a command expressed in a rule of law which may be statutory or non-statutory. It involves doing that which is forbidden by law or failing to do that which is required by law to be done. Mere failure to satisfy a condition necessary for the exercise of a statutory power is not a contravention. Nor would such a failure readily be characterised as “impropriety” although that word does cover a wider range of conduct than the word “contravention”: Parker v Comptroller-General of Customs (2009) 83 ALJR 494 at [29]–[30]; ASIC v Sigalla (No 2) (2010) 271 ALR 194 at [112].

Impropriety extends to conduct which, although not either criminal or unlawful, is quite or clearly inconsistent with minimum standards that society expects and requires of those entrusted with law enforcement: Robinson v Woolworths Ltd (2005) 64 NSWLR 612 at [22]–[23]. No preponderance is ascribed to any of the matters identified in s 138(3) over others; each, if applicable, is to be weighed in the balance in favour of or against the exercise of discretion: ASIC v Macdonald (No 5) [2008] NSWSC 1169 at [27].

The concept of unfairness has been expressed in the widest possible form in ss 90 (Discretion to exclude admissions) and 138 of the Evidence Act and reflects the “policy discretion” developed by the common law: The Queen v Swaffield (1998) 192 CLR 159 at [67]–[68]; Pavitt v R (2007) 169 A Crim R 452 at [30].

The discretion to admit evidence under s 138 is, however, a distinct and separate discretion from that arising under s 90; s 138 seeks to balance two competing public interests, neither of which directly involves securing a fair trial for the accused: R v Em [2003] NSWCCA 374 at [74]; R v Syed [2008] NSWCCA 37 at [36]–[37].

The clear intention of s 138 is to replace the general law discretion to exclude improperly obtained evidence: Robinson v Woolworths Ltd, above, at [24]. The term “impropriety” is not defined by the Evidence Act, and the concept as defined for the common law by Ridgeway v The Queen (1995) 184 CLR 19 at 36–40 is applicable: Robinson v Woolworths Ltd (at [22]). In R v Camilleri (2007) 68 NSWLR 720, the NSW Court of Criminal Appeal restated the test in the following terms:

The prejudice to the individual accused, which to varying degrees must be present in every case, will rarely be material. It may be of concern if the means by which the evidence was obtained has the consequence that an accused cannot effectively respond to it. There may be other personal considerations in a particular case. However, the fundamental concern of the section is to ensure that, if the law has been breached, or some other impropriety has been involved in obtaining the evidence, this is balanced against the public interest in successfully prosecuting alleged offenders. The competing interests are obedience to the law in the gathering of evidence and enforcement of the law in respect of offenders.

A number of dissenting opinions given by Kirby J in the High Court on this issue led to a firm statement by the NSW Court of Criminal Appeal that s 138 is to be interpreted as stated in R v Camilleri: Fleming v R (2009) 197 A Crim R 282 at [21].

Section 138 should be read in conjunction with s 139, which defines the application of s 138 insofar as it deals with evidence obtained during official questioning. If in the particular case a full caution was required to be given to a suspect during official questioning (see s 139), and it was not given, it falls within s 138: Em v The Queen (2007) 232 CLR 67 at [119]–[120]. Section 138 is not, however, confined in its application to evidence obtained during official questioning.

The accused’s right to silence will only be infringed where it was another person who caused the accused to make the statement, and where that person was acting as an agent of the state at the time the accused made the statement. Accordingly, two distinct inquiries are required: (i) did another person cause the accused to make the statement? and (ii) was that person an agent of the state? A person is an agent of the state if the exchange between the accused and that person would not have taken place, in the form and manner in which it did take place, but for the intervention of the state or its agents. There is no violation of the accused’s right to choose whether or not to speak to the police if the police played no part in causing the accused to speak. If the accused speaks, it is by his or her own choice, and he or she must be taken to have accepted the risk that the recipient may inform the police. The other person will have caused the accused to make admissions if the relevant parts of the conversation were the functional equivalent of an interrogation and if the state agent exploited any special characteristics of the relationship to extract the statement. Evidence of the instructions given to the state agent for the conduct of the conversation may also be important. The fact that the conversation was covertly recorded is not, of itself, unfair or improper, at least where the recording was lawful: Pavitt v R, above, at [70].

Unlawful or improper conduct does not include subterfuge, deceit or the intentional creation of opportunities for the commission of a criminal offence in the course of a police investigation, but that is not so where such conduct involves a degree of harassment or manipulation which is clearly inconsistent with minimum standards of acceptable police conduct in all the circumstances, including (amongst other things) the nature and extent of any known or suspected existing or threatened criminal activity, the basis and justification of any suspicion, the difficulty of effective investigation or prevention and imminent danger to the community: Ridgeway v The Queen (1995) 184 CLR 19 at 37.

The weight to be given to the principal considerations of public policy favouring the exclusion of the evidence — the public interest in maintaining the integrity of the courts and ensuring the observance of the law and minimum standards of propriety by those entrusted with powers of law enforcement — will vary according to other factors of which the most important will ordinarily be the nature, the seriousness and the effect of the illegal or improper conduct engaged in by the law enforcement officers and whether such conduct is encouraged or tolerated by those in higher authority in the police force or, in the case of illegal conduct, by those responsible for the institution if criminal proceedings: Ridgeway at 38. When assessing the effect of the illegal or improper conduct, the relevance and importance of any unfairness either to a particular accused or to suspected or accused persons generally will likewise depend upon the particular circumstances. Ordinarily, however, any unfairness to the particular accused will be of no more that peripheral importance: ibid at 38. The discretion to exclude all evidence will ordinarily fall to be exercised on the assumption that the offence has been committed and that the effect of the exclusion of the evidence is that the prosecution will be shut out completely from proving guilt and that a guilty person will walk free. In contrast, the discretion to exclude illegally procured evidence will ordinarily be exercised on the basis that guilt or innocence remains an open question to be determined by reference to any other admissible evidence which the parties may see fit to place before the court: ibid at 38. On the other hand, in the worst cases of entrapment by illegal police conduct, the weight to be given to the public interest in the conviction and punishment of those guilty of crime may be lessened by the diminution in the heinousness of the accused’s conduct resulting from (for example) the fact that he or she was an otherwise law-abiding person who would not have offended were it not for the “inordinate inducements” involved in the illegal conduct: ibid at 38–39. See also Parker v Comptroller of Customs [2007] NSWCA 348 at [58]–[62], [65]; Dowe v R (2009) 193 A Crim R 220 at [99]; Cornwell v R [2010] NSWCCA 59 at [180], [383].

Instances in which s 138 may or may not be applied Obtaining consent to a search of premises by inducing a false belief in the occupant that the police had a warrant which could be relied on if consent were not forthcoming may in some circumstances amount to trickery or unacceptable deception, as would reliance on a warrant that was known to be invalid: Parker v Comptroller-General of Customs, above, at [56]; AG v Chidgey (2008) 182 A Crim R 536 at [8].

It is common, acceptable and expected practice that police investigators will, from time to time, speak to a suspect with a view to that suspect becoming a Crown witness (to “roll-over”). The process of taking an induced statement (that is, one rendered inadmissible against the suspect) to be considered by relevant prosecuting authorities is not uncommon, but it is for the Director of Public Prosecutions, and not police officers, to exercise the statutory power to determine whether an undertaking will be given under s 9 of the Director of Public Prosecutions Act 1983 (Cth): R v Petroulias (No 9) [2007] NSWSC 84 (Johnson J) at [47].

The failure of police to comply with time limits when interviewing a juvenile in relation to a robbery in company, where the failure would have led to the exclusion of the ERISP record in the trial of the juvenile, was irrelevant where the juvenile was called as a prosecution witness in the trial of the other persons involved in the robbery and where his interview was tendered in evidence, as s 138 is directed to the protection of the person interviewed and not of those other persons; a complaint that the tender was unfair to the accused on trial, who were not involved in the interview and would have to explain what he had said, was rejected: R v Syed [2008] NSWCCA 37 at [37]–[38].

Relevant to the discretion to be exercised under s 138 is whether the breaches of regulations were deliberate or reckless: Lodhi v R (2007) 179 A Crim R 470 at [162]. The action of an agent provocateur or person who induces another to commit a crime through subterfuge or trickery falls within the definition of improper conduct in s 138: Parker v Comptroller-General of Customs at [55]. Also caught by s 138 is reliance on a warrant known by police to be invalid or even reliance on a valid warrant which the police believed to be invalid: at [56]. There is no significant distinction between evidence obtained in contravention of an Australian law and evidence obtained in consequence of such a contravention: at [55].

There is no significant distinction between evidence obtained in contravention of an Australian law and evidence obtained in consequence of such a contravention: Parker v Comptroller-General of Customs at [55].

A helpful and practical analysis of s 138 is to be found in R v Gallagher [2015] NSWCCA 228. A police officer attended a rural property to conduct a firearms audit. There appeared to be nobody at the premises. He walked around the property and ultimately his attention was drawn to equipment and plants which he assessed to be cannabis plants. The officer left the property, arranged for the issue of search warrants and later took part in the search and seizure of an extensive range of plants and equipment.

At the trial of the occupants of the property, the judge found that the evidence was obtained as a consequence of “a contravention of an Australian law”, namely a trespass on private property. He found that the police officer’s conduct was reckless and that his contravention of the common law dictate against trespass was “of substantial gravity”. The evidence was excluded from the trial.

The CCA (Gleeson JA, Adams and Beech-Jones JJ) disagreed with so much of the decision that asserted recklessness on the part of the police officer. His conduct could not be characterised “as anything worse than careless conduct undertaken in the honest belief that he was entitled to act as he did”. His failure to observe the law, in all the circumstances, represented a relatively minor contravention of the law. The appeal was allowed.

Onus and burden of persuasion The onus of persuasion is initially on the party objecting to the evidence to establish that the evidence falls within the terms of s 138(1): Gilmour v Environment Protection Authority (2002) 55 NSWLR 593 at [46]. Once the judge is satisfied that it does, the onus of persuasion shifts to the party tendering the evidence that the desirability of admitting the evidence outweighs the undesirability of admitting it in the circumstances in which it had been obtained: R v Coulstock (1998) 99 A Crim R 143 at 147; Robinson v Woolworths Ltd (2005) 64 NSWLR 612 at [33], [106].

There is no residual discretion: R v Blick [2000] NSWCCA 61 at [18]–[20]; L’Estrange v R (2011) 214 A Crim R 9 at [47]–[50].

The burden of proof required by s 142 of the Evidence Act for the admissibility of evidence (the balance of probabilities) requires a consideration of the gravity of the allegation and its consequences in accordance with Briginshaw v Briginshaw (1938) 60 CLR 336 at 361–362: R v Petroulias (No 8) (2007) 175 A Crim R 417 at [16]–[18].

In Bibby Financial Services Australia Pty Ltd v Sharma [2014] NSWCA 37 the Court of Appeal considered whether an allegation of sexual harassment in a termination of contract case required the trial judge to have regard to both the Briginshaw standard and “the gravity of the matters alleged” as required by s 140(2)(c). Gleeson JA said that s 140 reflected the principles stated in Briginshaw v Briginshaw, above, that the requirement that there should be clear and cogent proof of serious allegations did not change the standard of proof but merely reflected the perception that members of the community do not ordinarily engage in serious misconduct. In the present case the allegations against the defendant were clearly of a serious nature and, if established, would have significant detrimental consequences for him both under his business contract and in respect of his future employment prospects. There was no error of law in the trial judge referring to both Briginshaw standard and s 140(2)(c).

Application to civil proceedings Section 138 is not confined to criminal proceedings: Robinson v Woolworths Ltd, above, at [21]; but it has been little used in civil proceedings. In Bedford v Bedford (unrep, 20/10/98, NSWSC), it was unsuccessfully alleged that a tape recording had been made contrary to the Listening Devices Act 1984 (now repealed), and thus rendered inadmissible by s 13(1). It was, however, accepted by Windeyer J that the evidence had been improperly obtained, as the statements sought to be introduced into evidence were made in association with litigation improperly commenced and in response to a false statement (see s 138(2)(b)). The judge considered (at 13–14) that the evidence was not such that the action would fail without it, that the conduct on the part of the plaintiff and his solicitor was deliberate and most serious, and that disciplinary proceedings might possibly be taken against the solicitor (s 138(3)(g)). The evidence was rejected on the basis that the undesirability of admitting the evidence outweighed the desirability of admitting it. (Strictly speaking, it would have been sufficient for the judge to have rejected the evidence on the basis that the plaintiff had failed to persuade him that the desirability of admitting the evidence outweighed the undesirability of not admitting it).

Another example of the application of s 138 in a non-criminal situation is to be found in Gibbons v Commonwealth [2010] FCA 462 at [26]. This was an application for an extension of time in which to appeal from the decision of a magistrate to dismiss declaratory relief to a former police officer refused relief under the (Cth) Disability Discrimination Act 1992. He had been injured in a motor vehicle accident unassociated with his employment. The ACT magistrate’s decision was based in part on the report of a defence force medical practitioner (Dr Lambeth) who was not registered to practise in the ACT, but whose opinion had been sought by the applicant and which, although unfavourable, the applicant had tendered for the particular forensic purpose of attempting to demonstrate an improper relationship between Dr Lambeth and his former employer, the Australian Federal Police. The Commonwealth had not objected to its tender, and in part relied on its conclusion to support its case. In the Federal Court, Logan J held that the magistrate had not erred in relying on the report as establishing the medical issue in favour of the AFP. He held (at [29]) that the doctor, although not at the time registered in the ACT, was qualified in the sense of possessing the requisite training to express a medical opinion, and it was the opinion, not the circumstances attending registration, that was relevant.

[4-1650] Cautioning of persons — s 139

The term “investigating official” is defined in the Dictionary to the Evidence Act.

“questioning” The word is not defined in the Evidence Act. It does not include a conversation between the accused and the police officer; it is aimed at formal or informal interrogation of a suspect by a police officer for the purpose of the officer obtaining information, whether or not at the time of the interrogation the suspect was formally under arrest: R v Naa (2009) 197 A Crim R 192 at [98]–[99]). That was a “siege” case, and the police officer was involved in negotiation rather than investigation.

The provisions as to admissions contained in s 139 apply only to matters caught by the statutory definition of that term and its essential element “representation” as contained in the Dictionary; a handwriting sample provided does not amount to a representation: R v Knight (2001) 120 A Crim R 381 at [80]; Knight v The Queen [2002] HCA Trans 81 (5 March 2002)

Section 139(1) and (2) are deeming provisions: Em v The Queen (2007) 232 CLR 67 at [105], [117]–[118]. They require the court to find that there has been an impropriety in accordance with s 138(1) notwithstanding that the court might not have considered that, on the particular facts and circumstances before it, the evidence was improperly obtained or obtained as a result of an impropriety; the court should determine whether the section is engaged having regard to the particular facts and circumstances before it, but with due regard to the seriousness of a finding that evidence was obtained improperly or as a consequence of an impropriety and to the outcome of such a finding. Not every defect, inadequacy, or failing in an investigation should result in a finding that the section applies merely because it may be considered that, as a result of those defects, inadequacies or failings, the investigation was not properly conducted or that the police did not act properly in a particular respect. On the other hand, the terms of s 138(3)(e), which require the court to take into account whether the “impropriety or contravention was deliberate or reckless”, makes it clear that the conduct need not necessarily be wilful or committed in bad faith or as an abuse of power: R v Cornwell (2003) 57 NSWLR 82 at [18]–[20] (the decision in Cornwell v The Queen (2007) 231 CLR 260 did not relate to this statement).

In the balancing exercise required by s 138, the absence of the caution required by s 139 may be disregarded where it is clear that the accused was well aware of his rights having already been interviewed by way of ERISP when he was cautioned: R v Walsh [2003] NSWSC 1115 at [18].

Posing for a photograph at the direction of a police officer was not an act done during questioning for the purposes of s 139(1): R v G [2005] NSWCCA 291 at [62].

In a case in which the accused was charged with knowingly making false applications for birth and death certificates in false names, the prosecution sought to prove that the applications were made in the accused’s handwriting by tendering documents (known as P 59B forms) which provided identification material such as date and place of birth, physical description, and employment. The accused had completed these documents when he was fingerprinted after his arrests at different times on this and other charges, and which documents were the subject of a comparison by an expert handwriting witness to establish that the false applications had been written by the accused. No caution had been given to the accused when asked to complete the documents as to the use that they could be put against his interests and he was not told that there was no compulsion on him to complete the forms. The legislative provision expressly provided that the consent of the person arrested was not required for the taking of fingerprints or particulars thought to be necessary for the identification of that person. There was no finding that the accused would not have completed the forms if told it was not compulsory. On appeal, it was held that there was no basis for a finding that the documents amounted to self-incrimination which should have been preceded by a caution, or that there had been any impropriety: R v Knight (2001) 120 A Crim R 381 at [78]–[81].

For an example of how far investigating officials are entitled to go in continuing their investigation without forming a belief that there was sufficient evidence to establish that the person questioned has committed an offence, see R v Pearce [2001] NSWCCA 447 at [97]–[105].


  • Director of Public Prosecutions Act 1983 (Cth), s 9

  • Evidence Act 1995, ss 53, 55, Pt 3.3 (ss 76–80), Pt 3.4 (ss 81–90), s 114, Pt 3.11 (ss 135–139), ss 142, 192, 192A, Dictionary

  • Evidence Amendment Act 2007

  • Listening Devices Act 1984, s 13(1) (repealed)

Further references

  • Australian Law Reform Commission, Uniform Evidence Law, ALRC Report 102; NSWLRC Report 112, VLRC Final Report, 2005

  • S Odgers, Uniform Evidence Law, 18th edn, Thomson Reuters, Sydney, 2023

  • J Stone, Evidence: Its History and Policies, Butterworths, Sydney, 1991