Evidence Law in Western Australia

The Evidence Bill 2025 (WA) passes both houses of Parliament

Last week the Evidence Bill 2025 (WA) passed both houses of parliament. It is now awaiting Assent.

Following the tabling of the Standing Committee on Uniform Legislation and Statutes Review’s report on 12 August 2025, the Bill was under consideration by the Legislative Council in Committee of the Whole. Ten amendments were adopted by the Legislative Council in this process. The Bill was then read for a third time in that house on 18 September 2025, and on that same day the Legislative Assembly agreed to the amendments made by the Legislative Council.

The final version of the Bill is, therefore, a culmination of the Evidence Bill 2025 (WA) as it passed the originating house, and the amendments noted in Supplementary Notice Paper 9 (Issue 2), all of which were agreed to by both houses of Parliament.

For those interested (and quoting the currently uncorrected draft Hansard), the Leader of the Opposition in the Legislative Council discussed the reason why the now agreed Bill is split across these two documents: ‘… after we pass amendments in the Committee of the Whole House process, and perhaps after this third reading, and we then send the bill back to the other place, we do not actually send a bar-3 bill back to the other place for its concurrence. We simply say to the members of other place that we have agreed to the bill and we have these other ancillary amendments that we would like them to agree to. I think it would be useful—not that I am expecting this to change—when members are being asked to agree to the third reading of a bill, as we are now being asked to do, that there is some document that accumulates everything it is that we are being asked to agree to. In terms of the documents that I have before me, I have this massive Evidence Bill 2025, a bar-2 bill that was introduced by the hardworking parliamentary secretary some time ago. I also have in my possession the supplementary notice paper (SNP)—in particular, SNP 9, issue 2. In a sense, it is the combination of these two things that then become the law that we are being asked to agree to. But it is a not entirely satisfactory process because, of course, just because I have an SNP 9, issue 2, does not necessarily mean that the house has agreed to all the items that are on the SNP. As it so happens in this instance—this is why I think it is an instructive example—that did actually happen.’

This process of legislative change in WA has been a long one – the Uniform Evidence Law was enacted in the Commonwealth jurisdiction and in New South Wales 30 years ago, and it has been 29 years since a WA Parliamentary Committee recommended that ‘Western Australia enact a new Evidence Act which would include (1) the Commonwealth Model Evidence Act…; and (2) incorporating those sections of the current Western Australian Act thought to be worthy of retention…’. It’s quite remarkable that this is (more or less) exactly what the Western Australian parliament chose to do (albeit nearly 30 years later)! Having the Bill passed through both houses (and now awaiting Assent) is a significant development, though it will also require significant learning and upskilling amongst WA’s legal profession.

I’m proud of the part I was able to play in shaping the new law when I was engaged by the Department of Justice to undertake an academic review of the proposed legislation in 2024. I will continue to post updates on this website, and have also recently signed a publishing agreement with Thomson Reuters to author a new book (aimed at both practitioners and students) on Evidence Law in Western Australia, reflecting the incoming evidence framework (I will provide updates here in due course).

You can access all of the documents relating to the Evidence Bill 2025 (WA), and continue to track its progress, on the WA Parliament website.

Evidence Bill 2025 (WA)

This post provides an update on Western Australia’s (proposed) new Evidence Law framework. As previously discussed on this blog, last year the Western Australian Government introduced the Evidence Bill 2024 (WA) to parliament. The 2024 Bill substantially adopted the Uniform Evidence Law, though with its own section numbering and a number of peculiarly Western Australian provisions (including some adapted from the Evidence Act 1906 (WA); some implementing recommendations from various Royal Commissions, Law Reform Commission Reports, and other Inquiries; and some reflecting entrenched differences in Western Australia – eg, in relation to the preparation of identification evidence).

The 2024 Bill was introduced to the Legislative Council but lapsed when Parliament was prorogued prior to the WA state election which was held in March 2025.

Since then, the Evidence Bill 2025 (WA) has been introduced to Parliament, having passed through the Legislative Assembly just this week. The 2025 Bill is nearly identical to the 2024 Bill.

One notable difference is that the 2025 Bill includes Part 7 Division 8 on intermediaries. This division was split from the original 2024 Bill because the 2024 Bill was introduced in the Legislative Council, but Part 7 Division 8 included provisions which appropriate money or revenue for the establishment of a new witness intermediary service. No such split was necessary for the 2025 Bill as it was introduced in the Legislative Assembly rather than the Legislative Council.

There are some other amendments scattered throughout the Bill. One that is worth noting is the change to clause 206 which expands existing prohibitions on evidence of sexual disposition, reputation and experiences. The previous version of clause 206 prohibited or restricted this evidence only in criminal trials where that evidence related to the complainant. In the 2025 Bill, the new version of clause 206 extends these prohibitions and restrictions so they apply in civil proceedings in relation to witnesses who are alleged to be the victim of sexual abuse or sexual harassment. This is consistent with Recommendation 46(1)(l) from the Australian Law Reform Commission’s report on ‘Safe, Informed, Supported: Reforming Justice Responses to Sexual Violence’ which was published in January this year.

Having passed the Legislative Assembly, the 2025 Bill is now in the Legislative Council, where it has been referred to the Standing Committee on Uniform Legislation and Statutes Review. That Standing Committee reported on the 2024 Bill so it may be expected that the Standing Committee will have less work to do in relation to the 2025 Bill.

Although the Government does not have an outright majority in the Legislative Council, the 2025 Bill had strong bipartisan support in the Legislative Assembly so is expected to pass through the upper house. When passed, the bill will come into force on a day to be fixed by proclamation. As put in the Second Reading Speech, ‘This is to allow time for implementation preparations to occur, including for regulations and rules of court to be drafted and training to be provided to participants in the justice system, such as lawyers, the judiciary, police and court staff.’

You can track the status of the Evidence Bill 2025 (WA) on the WA Parliament website, where you can also download the Bill and associated parliamentary documents.

Evidence Law and First Nations Peoples

I have recently authored two articles in the First Nations Law Bulletin that may be of interest to subscribers of this blog.

Looking Beyond the Lineup: Evaluating the Fairness of ‘Digiboard’ Identification Evidence for First Nations Peoples

The most recently published article relates to identification evidence. Unlike the Uniform Evidence legislation in other Australian jurisdictions, WA’s proposed new Evidence legislation (which is still yet to pass through parliament) does not require police to conduct identification parades as a general rule. Instead, it enables police to continue to obtain identification evidence by way of ‘digiboard’ identification procedures (these are essentially digitised photoboards). This article briefly considers whether this divergence in the WA law is likely to be consequential for First Nations peoples. Is WA’s decision not to require identification parades problematic, or is there no material difference between the identification procedures?

You can download the article below. The article can be cited as: Aidan Ricciardo, ‘Looking Beyond the Lineup: Evaluating the Fairness of ‘Digiboard’ Identification Evidence for First Nations Peoples’ (2024) 1(4-5) First Nations Law Bulletin 55.

FNLB Looking Beyond the Lineup Download

Denial of Language: Grounds for Occasioning an Unfair Trial?

The earlier article is based on a previous post from this blog, covering Solomon J’s decision in Murray v Feast [2023] WASC 273. That decision represents a significant development of the law – it acknowledges that an unfair trial can be occasioned where a judicial officer fails to recognise the ‘linguistic distinctiveness’ of an Aboriginal person, even where a complete interpretation is provided and no material misinterpretation or misunderstanding of evidence can be identified.

You can download the article below. The article can be cited as: Aidan Ricciardo, ‘Denial of Language: Grounds for Occasioning an Unfair Trial?’ (2024) 1(3) First Nations Law Bulletin 43.

FNLB Denial of Language Download

New Evidence Laws for WA

I appeared on last week’s Law Report (on ABC Radio National) to discuss aspects of the Evidence Bill 2024 (WA). You can listen to the segment below:

Aidan Ricciardo on the Law Report (ABC Radio National) on 3 September 2024.

As many readers of this blog will already be aware, the Western Australian government has introduced bills to the state parliament to update Evidence Laws in WA. The new legislative scheme substantially adopts the Uniform Evidence Law (already enacted in the Commonwealth, NSW, Vic, Tas, NT and the ACT) but with some material modifications (eg, in relation to identification evidence) and a number of additional provisions (including those relating to family violence, as I discuss in the Law Report segment).

You can access the bills here (the bills are to be read together – should they pass through parliament there will only be one Evidence Act):

Evidence Bill 2024 (WA) (this bill was introduced in the Legislative Council and contains all of the proposed new Evidence Act except for those provisions relating to the establishment of a witness intermediary service).
Evidence Amendment Bill 2024 (WA) (this bill was introduced in the Legislative Assembly because it includes provisions which appropriate money or revenue for the establishment of a new witness intermediary service).

Earlier this year I was engaged as a consultant by the Department of Justice to conduct an independent academic review of an earlier draft of the proposed law. The Department also sought submissions from a range of targeted stakeholders.

In WA, we have been anticipating a move to the Uniform Evidence Law for some time now, so it is great to see the proposed legislation in parliament. Whilst our version of the law might be better described as “uniform-ish” rather than “uniform”, it will bring some significant changes in WA. From a personal perspective, I’m glad that my colleagues and I at the UWA Law School bit the bullet and transitioned to teaching the Uniform Evidence Law in our Evidence Law course back in 2023!

The Evidence Bill 2024 (WA) has been referred to the Standing Committee on Uniform Legislation and Statutes Review. I will post updates on this blog as the legislation progresses.

When will an expert’s opinion be shown to be based on their specialised knowledge?: Lang v The Queen [2023] HCA 29

In Lang v The Queen, the High Court considered whether a forensic pathologist’s opinion – that the deceased’s wounds were more likely inflicted by another person than self-inflicted – was founded on their expert knowledge within the field of forensic pathology (and thus, whether the opinion was admissible as expert opinion evidence).

Lang was heard on appeal from the Court of Appeal of Queensland. There were two grounds of appeal in both the Court of Appeal and the High Court, though this post is concerned only with the second ground, which was that a miscarriage of justice was caused by the wrongful admission of the forensic pathologist’s evidence at trial.

The appellant argued that the opinion evidence from Dr Ong (the forensic pathologist) was inadmissible because it was not demonstrated to be based on his expert knowledge in forensic pathology.

Ultimately, a majority of the High Court (Kiefel CJ, Gageler and Jagot JJ, Gordon and Edelman JJ in dissent) dismissed the appeal, noting as to the second ground that:

‘… we cannot conclude that, in engaging in the process of reasoning which led to the formation of the opinion, Dr Ong did other than draw substantially on his specialised knowledge.’ (Kiefel CJ and Gageler J at [26])

and

‘It is clear from a fair reading of the transcript of Dr Ong’s evidence that the impugned evidence was based on his specialist knowledge and reflected the combined effect of that knowledge brought to bear on multiple facts that he could ascertain only by reason of his specialist expertise…’ (Jagot J at [469])

As an appeal from Queensland, this case concerns the common law of evidence. However, as stated by Kiefel CJ and Gageler J in their joint judgment (at [11]), the relevant requirement (for the expert’s opinion to be shown to be based, at least substantially, on their specialised/expert knowledge) applies equally under the Uniform Evidence Law.

BACKGROUND

The deceased died from blood loss secondary to a stab wound to her abdomen. The only two people in the deceased’s apartment at the time of her death were the deceased and the appellant. It was accepted at trial that there were only two possible explanations for her death: either the deceased was killed by the appellant, or the deceased died by suicide. The prosecution case at trial was the former explanation.

In support of their case, the prosecution adduced evidence from a forensic pathologist, Dr Ong (who had performed an autopsy of the deceased and produced a postmortem report based on that autopsy), that the deceased’s wounds were more likely to have been inflicted by another person than self-inflicted. Dr Ong’s evidence was adduced over objection made by the appellant and ultimately found to be admissible by the trial judge in a pre-trial hearing.

The appellant accepted that forensic pathology was a field of expertise, that Dr Ong was an expert in forensic pathology, and that the question of whether wounds may have been self-inflicted or inflicted by another was capable of being the subject of expert evidence if ‘a suitable foundation as to the [witness’s] training, study or experience has been laid’. Therefore, the crux of the issue was whether or not the opinion was shown to be based on Dr Ong’s expert knowledge.

Dr Ong said he took a number of factors into account in reaching the opinion that the wound was more likely to have been inflicted by another person than self-inflicted, such as the absence of evidence of self-harm (for example, incisions to the wrist). Dr Ong said that the factor he took most into account in forming his opinion was ‘the multiplicity of the stab wounds’ and the ‘rotation of the blade’. Dr Ong gave evidence that there was a single penetrating stab wound, comprised of two internal thrusts of the knife in one direction, a partial retraction and rotation of the knife while it was mostly withdrawn from the deceased’s body, followed by a further two or three thrusts, with the knife rotated in a different direction to that of the first two thrusts. There was a single point of entry.

Critically, Dr Ong said in his evidence-in-chief in the pre-trial hearing that his opinion was based on his ‘logical sense of what happened’. In cross-examination at trial, Dr Ong said he had found no literature on a wound bearing the same features as the deceased’s (featuring as it did a single entry external wound, a couple of internal stabs, rotation, and then a couple of more internal stabs). He said had also not dealt with a case like this in his career.

The appellant submitted that Dr Ong’s opinion was, therefore, substantially based on his subjective view as to how a person may or may not act when attempting to die by suicide, rather than being properly based on his special expertise in forensic pathology.

JUSTICE JAGOT’S JUDGMENT

The leading judgment was written by Jagot J, with which Kiefel CJ and Gageler J agreed. Justice Jagot found that Dr Ong’s opinion was not based on his subjective view of human behaviour (a matter beyond his expertise) – rather, the conclusion that the wounds were more likely to be self-inflicted was based on the wounds themselves and his experience as a forensic pathologist. Justice Jagot relevantly said:

‘It is apparent that Dr Ong was not purporting to give evidence as to the deceased’s psychological state or, indeed, the psychological state of any person who ends their own life. He was explaining that the evidence of the wounds themselves…, based on his expertise and experience over 25 years, led him to the conclusion that the wounds were more likely to be inflicted by another person than to be self inflicted. It is because drawing conclusions from wound patterns involves a process of deductive reasoning based on expertise as a forensic pathologist, and because he had no expertise to opine as to the particular psychology of the deceased at the time of the infliction of the wounds (and did not so opine), that he could not rule out the possibility that the wounds were self inflicted.’ (at [468])

As to whether Dr Ong could form such a conclusion without having encountered an identical case in his experience or in the literature, Jagot J said that ‘the essence of expertise is the capacity to reason from facts based on specialist training, study, or experience’ (at [469]):

‘… The fact that Dr Ong had not identified such a sequence of events in either a suicide or a homicide caused by stabbing does not mean that his evidence was not based on his expertise and does not mean his evidence lacked a rational foundation… it is highly unlikely that any case of suicide or homicide reported in the literature will be identical to an actual case which confronts a forensic pathologist… He is entitled to bring to bear all his specialist training, study, or experience to form an opinion without being able to point to an identical or even similar case. It is clear… that the impugned evidence was based on his specialist knowledge and reflected the combined effect of that knowledge brought to bear on multiple facts that he could ascertain only by reason of his specialist expertise…’ (at [469], emphasis added)

Justice Jagot thus dismissed the ground of appeal.

CHIEF JUSTICE KIEFEL AND GAGELER J’S JUDGMENT

Chief Justice Kiefel and Gageler J agreed with Jagot J, but wrote separately from the lead judgment to elaborate on the common law principles which bore on the admissibility of Dr Ong’s opinion.

In particular, their Honours discussed the requirement for an expert witness to reveal to the court their process of reasoning, so as to demonstrate that their opinion is based on application of their specialised knowledge to the relevant facts. Drawing on Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305, as applied in Dasreef Pty Ltd v Hawchar [2011] HCA 21, Kiefel CJ and Gageler J noted that:

‘…in order to satisfy the condition of admissibility that the opinion of an expert be demonstrated to be based on specialised knowledge or experience, the inference drawn by the expert which constitutes the opinion [must] be supported by reasoning on the part of the expert sufficient to demonstrate that the opinion is the product of the application of the specialised knowledge of the expert to facts which the expert has observed or assumed.’ (at [11])

Their Honours noted that this requirement exists both at common law and under the Uniform Evidence Law (at [11]). They also noted that the standard set explicitly by the Uniform Evidence Law – that an expert’s opinion need only be ‘substantially based on’ their specialised knowledge – applies equally at common law (at [12]).

Their Honours also noted that for the purposes of admissibility, the relevant question is simply whether the process of reasoning is sufficient to demonstrate that their opinion is the product of the application of their expert knowledge to the facts. Whether or not the reasoning is clear and convincing does not go to admissibility, but is relevant to how much weight the fact-finder might afford to the opinion:

‘Here, it is important to highlight a distinction touched on but not elaborated upon in Makita. The distinction is between the present question as to whether a process of reasoning engaged in by an expert is sufficient to demonstrate that his or her opinion is the product of the application of specialised knowledge and the question of the extent to which a process of reasoning engaged in by an expert through the application of specialised knowledge is clear and convincing. Both questions can be described as going to the utility or value of the opinion. However, it is the present question alone that goes inexorably to the “admissibility” of the opinion as distinct from its “weight”. In addressing the present question of whether the opinion satisfies the condition of admissibility that the opinion be demonstrated to be based on specialised knowledge or experience of the expert, lack of cogency in so much of the reasoning as is found to involve application of specialised knowledge is not to the point: “the giving of correct expert evidence cannot be treated as a qualification necessary for giving expert evidence”.’ (at [15]–[16])

Chief Justice Kiefel and Gageler J went on to note that the cogency of an expert witness’ reasoning could affect the admissibility only if and when a court is called upon to decide whether its probative value is outweighed by its prejudicial effect (ie, when applying the Christie discretion at common law, or ss 135/137 of the Uniform Evidence Law).

It is of particular interest that their Honours said ‘assessing the probative value of the opinion [by] having regard to the cogency of the reasoning proffered in evidence in support of it involves no departure from the now settled principle that the assessment of the probative value of evidence requires that evidence to be “taken at its highest”: taking evidence at its highest involves making no assumption that the evidence in question is convincing’ (at [17]). Though these principles have been stated and settled previously, it is worth noting the inherent difficulty – at least in some cases – involved in teasing apart notions of credibility and general reliability (which are not to be considered when determining probative value) from the cogency of the reasoning (which can be considered as going to probative value).

Turning to consider the case at hand, their Honours said ‘The overwhelming impression which emerges from reading the transcript is that of a professional and dispassionate forensic pathologist seeking to make sense of observed phenomena in respect of which neither his long experience nor his wide reading furnished an exact precedent.’ (at [20])

As to Dr Ong’s statement that he formed his opinion based on his ‘logical sense of what happened’, their Honours noted that ‘This expression was unfortunate in that it could be interpreted as Dr Ong saying that, in forming his opinion, he had drawn on some third source of background knowledge additional to his professional experience and the scientific literature. However, it is clear enough… that what he was saying was that he had engaged in a process of inductive reasoning which involved applying his knowledge of the interpretation of stab wounds to observed features of [the deceased’s] wound to form a conclusion about which of the two scenarios was more likely.’ (at [21])

Chief Justice Kiefel and Gageler J acknowledged that at trial, Dr Ong perhaps did not do a particularly good job of explaining why the wounds were more consistent with stabbing by another than they were with stabbing oneself. Their Honours said that ‘Absent a clearer explanation of Dr Ong’s process of reasoning, his opinion about whether the features of the wound which he identified were more consistent with stabbing by someone else might legitimately have been thought to have carried [little weight]… That weakness might well have been thought to have gone to the admissibility of Dr Ong’s opinion had the argument been advanced that its probative value was outweighed by its prejudicial effect.’ (at [25])

However, the argument put by the appellant was instead that the reasoning was not sufficient to demonstrate that the opinion was based on Dr Ong’s expert knowledge, and on that point Kiefel CJ and Gageler J agreed with Jagot J that the ground of appeal should be dismissed.

CONCLUDING COMMENT

This case is interesting and helpful for a number of reasons. It provides a solid illustration of an opinion which is demonstrated to be based on expert knowledge even though the process of reasoning was not particularly clearly expressed. To that extent, it also demonstrates the distinction between ‘sufficient reasoning’ to demonstrate that the opinion is substantially based on expert knowledge, as compared to ‘cogent or convincing reasoning’ which chiefly goes to weight but can also affect probative value.

The case is also interesting because it speaks to and demonstrates a number of commonalities between the common law and Uniform Evidence Law tests for admissibility of expert opinion. A consequence of this is also that it is relevant to those practicing in all Australian jurisdictions – ie, it is presently relevant in Western Australia, and will continue to be relevant if/when the Uniform Evidence Law is adopted here.

This post is jointly authored by Julia Symons and Aidan Ricciardo

Does a co-accused have an ‘unfettered right’ to adduce all admissible evidence probative of their innocence?: McNamara v The King [2023] HCA 36

In a joint trial involving multiple co-accused, a question arises as to the extent one accused person should be entitled to give or adduce evidence that, while tending to exonerate them, causes prejudice to their co-accused. As a basic example, suppose the prosecution alleges two accused people were involved in a murder. Each accused person runs a ‘cut-throat’ defence, blaming the other. One of the co-accused wants to adduce evidence that the other has a history for violence.

It has long been settled that trial judges have a discretion to exclude prosecution evidence of such a prejudicial nature. But does a judge have a similar discretion to exclude evidence adduced by a co-accused in a joint trial, due to prejudice that may be occasioned to another? Or does a co-accused have an unfettered right to give evidence in their defence? In the recently decided McNamara v The King [2023] HCA 36, the High Court considered this question in relation to the Uniform Evidence Law (UEL), but also considered the common law position (although as will be seen, it left the common law in an unsettled state).

McNamara v The King [2023] HCA 36

FACTUAL BACKGROUND

Mr McNamara and his co-accused, Rogerson, had been convicted by a jury of murder and a serious drug offence. McNamara gave evidence in his own defence. As part of his testimony, he sought to give evidence that Rogerson had told him: ‘I did Drury, I did Drury. I’ll do you too.’

McNamara also sought to give evidence that Rogerson had earlier told McNamara he had shot Michael Drury – being the ‘Drury’ he referred to above. The trial judge exercised his discretion under s 135 UEL to exclude the testimony. McNamara was convicted.

OVERVIEW WITH RESPECT TO THE UEL

McNamara, as an appeal from The Court of Criminal Appeal of the Supreme Court of New South Wales (NSWCCA), relates to the UEL. Section 135 of the UEL provides trial judges with a discretion to exclude any evidence if its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to ‘a party’. The question on appeal was whether the term ‘a party’ as used in s 135 includes a co-accused in a joint criminal trial. If so, it would mean that co-accused do not have an unfettered right to adduce evidence which might cause prejudice to their other co-accused – that right is limited by the discretion in s 135, as exercised by the trial judge.

Ultimately, the High Court agreed with the NSWCCA, holding that the term ‘a party’ includes each co-accused (at [62]), and thus the s 135 discretion can be exercised by a trial judge in situations like this. Accordingly, the High Court dismissed Mr McNamara’s appeal.

OVERVIEW WITH RESPECT TO THE COMMON LAW

In the High Court, Mr McNamara argued that at common law, a co-accused has an unfettered right to answer to the Crown case against them by adducing any admissible evidence probative of their own innocence (at [19]).

In the majority judgment, Gageler CJ, Gleeson and Jagot JJ explained the public interest considerations and principles informing why joint trials are held. Their Honours cited authority that said:

‘… particularly when each of the accused is seeking to cast the blame on to the other, the interests of justice demand that the jury should have the whole picture presented to them and not half of it, and should see the person on whom blame is sought to be cast as well as the person seeking to cast it.’ (at [40])

Their Honours said:

‘Whether or not the right of a co-accused to adduce admissible evidence probative of his or her innocence for which McNamara contended ought to be understood to form, or ever to have formed, a principle of the common law of Australia falls to be ascertained against that broader background of considerations supporting the conduct and continuation of a joint trial.’ (at [43])

Their Honours then referred to a number of decisions dealing with the issue of whether, at common law, a judge has a discretion which disrupts the suggested ‘unfettered right’ of a co-accused to adduce any admissible evidence probative of their innocence. In 1974 the Privy Council suggested the answer to be “no” (Lowery v The Queen [1974] AC 85), reaffirmed in the Council’s advice in 1995 in Lobban v The Queen [1995] 1 WLR 877). The Full Court of the Supreme Court of Victoria said “no” in R v Lowery [No 3] [1972] VR 939. In R v Miller [1952] 2 All ER 667 an order for a separate trial based on potential such evidence being given was refused, and that decision was relied upon by the Court of Appeal of Hong Kong in Lui Mei Lin v The Queen [1989] AC 288 in holding that the right of a co-accused to adduce evidence relevant to the defence of that co-accused in cross-examination of another co-accused was unfettered.

On the other hand, the Full Court of the Supreme Court of Victoria gave a qualified “yes” (that the trial judge does retain a discretion to exclude evidence from one co-accused which causes prejudice to the other) in R v Darrington [1980] VR 353 and R v Gibb [1983] 2 VR 155, although those decisions suggest that the circumstances justifying the exercise of the discretion would be exceptional.

Ultimately, Gageler CJ, Gleeson and Jagot JJ said that, following Lobban, the proposition that a co-accused has an unfettered right to adduce admissible evidence probative of their innocence came to be accepted by superior courts in common law evidence jurisdictions, noting that:

‘The proposition has since also come to be accepted by Courts of Appeal of the Supreme Courts of Queensland, South Australia and Western Australia.’ (at 48)

However, the majority declined to determine whether that proposition is in fact correctly regarded as part of the law in common law evidence jurisdictions:

‘Whether the proposition should be taken to have acquired the status of a principle of the common law of Australia operative in those three States need not now be determined.’ (at 48)

On this issue, Gordon and Steward JJ came to a more concrete conclusion:

‘The contention that at common law an accused had an unfettered right to adduce evidence should not be accepted.’ (at [104])

Gordon and Steward JJ considered that Lowery [No 3]; R v Darrington and R v Gibb all supported the existence of a discretion (at [105]). Their honours further observed that such a discretion was coherent with the duty of the trial judge to provide each accused with a fair trial (at [109]), and that in each case consideration needs be given to the interests of justice – which are not just the interests of the accused. Their Honours noted that these interests included:

‘not over-burdening the jury, not allowing the accused to have a separate trial where they could secure their acquittal through an explanation which cannot be controverted by a co-accused and not allowing evidence of only slight probative value to undermine other interests of the system of the criminal trial.’ (at [111])

CONCLUDING ANALYSIS – DOES A CO-ACCUSED HAVE AN ‘UNFETTERED RIGHT’ AT COMMON LAW?

Following the majority’s refusal to determine the issue, it remains unsettled at common law whether or not there exists a discretion which disrupts a co-accused’s ‘unfettered right’ to adduce admissible evidence probative of their innocence. However, the minority judgment provides compelling justification for the existence of such a discretion, at least in exceptional cases where the interests of justice require it. It remains to be seen whether this issue will ever be determined.

By contrast, McNamara makes it clear that in the Uniform Evidence jurisdictions, the statutory framework of the UEL has said ‘yes, there exists such a discretion’. With adoption of the UEL in Western Australia seeming increasingly likely in the foreseeable future, some might be optimistic that the UEL will provide a definitive answer on this issue in Western Australia.

This post is jointly authored by Matthew Thompson and Aidan Ricciardo

An unfair trial occasioned by denial of linguistic distinctiveness and an appearance of prejudgment: Murray v Feast [2023] WASC 273

Background

This case relates to an appeal from the Magistrates Court. The Appellant, Mr Murray, was convicted of one charge of aggravated common assault in the Magistrates Court at Karratha in 2021. At trial, Mr Murray gave evidence that he is a Walmajarri man who mainly speaks Walmajarri, as well as Mardok, Manjaderra, and ‘mixed languages’. Mr Murray gave evidence with the assistance of an interpreter. However, at the beginning of Mr Murray’s evidence, the Magistrate instructed the interpreter not to interpret portions of Mr Murray’s evidence that appeared to the magistrate to be in English. Both the interpreter and Mr Murray’s counsel attempted to inform the Magistrate that whilst Mr Murray might appear to be speaking in English, he was actually speaking in Aboriginal English and Kriol, and that interpretation was necessary because the meaning of words and phrases can differ between the languages. Despite this, the magistrate reiterated his instructions:

If he says it in English, then I don’t need to hear it twice. Because what we have by way of interpretation was the same sentence. So let’s just say it means something else in [Kriol], he just said the same words twice. I don’t need any further submissions. If you want to tell us something in English, I don’t need someone else telling me what he said… if you do use a sentence that’s in English, then I can understand what you’re saying because I happen to speak English.

The Appeal

The appellant argued three grounds of appeal (at [32]):

Ground 1: The learned magistrate erred in law in failing to properly direct himself in accordance with the Mildren direction.
Ground 2: There was a miscarriage of justice because the learned magistrate’s direction to the interpreter to stop interpreting portions of the appellant’s evidence resulted in an unfair trial.
Ground 3: The learned magistrate erred in law and fact by finding that the appellant was speaking ordinary English during portions of the appellant’s evidence.
Particulars: The learned magistrate had no regard for the expert opinion of the interpreter that the appellant was speaking Aboriginal English and Kriol. The learned magistrate erred in assuming that words spoken in Aboriginal English and Kriol have the same meaning in ordinary English.

The State conceded the third ground of appeal. However, the State argued that this error did not lead to a substantial miscarriage of justice because Mr Murray’s counsel and the interpreter ‘ignored’ the magistrate and continued with Mr Murray’s evidence through the use of the interpreter (at [38]).

Ultimately, Solomon J of the Supreme Court upheld the appeal and set aside the appellant’s conviction.

Ground 1

As to the first Ground of appeal, Solomon J found that the magistrate did not err by failing to give himself a Mildren direction. The Mildren direction seeks to ‘ensure fairness by drawing attention to socio-linguistic features of [a First Nations] witness that may give rise to misunderstanding’ (at [123]). Mildren directions have gained ‘fairly wide acceptance’ and have been adopted in the Aboriginal Benchbook for Western Australian Courts (at [102]). However, Solomon J concluded that

Mildren directions do not have the force of law. They have particular (but not exclusive) application where, unlike in this case, there is no interpreter. Moreover, Mildren directions are suggested directions to a jury by a judicial officer. Where the arbiter of fact is the judicial officer him or herself it is far from clear that error is demonstrated by the failure of the judicial officer to articulate out loud the sentiments expressed in the Mildren directions in the reasons for decision. (at [135])

Further, the magistrate did in fact refer to some matters relevant to Mildren directions in his ex tempore reasons, including that English was not Mr Murray’s first language, that Mr Murray was from a ‘culturally traditional background from Halls Creek’, and noting that ‘particular leeway should be given in terms of the evidence of Mr Murray and I have done so’ (at [137]).

Grounds 2 and 3

Justice Solomon dealt with the other two grounds together, noting that both related to the issue of a miscarriage of justice, a fair trial, and the conduct of the magistrate in relation to Mr Murray’s socio-linguistic circumstances (at [144]).

In relation to the State’s assertion that no substantial miscarriage of justice occurred because Mr Murray continued to give evidence with the assistance of the interpreter, Solomon J said ‘does not of itself mean that the magistrate’s remarks and treatment of Mr Murray was consistent with a fair and just hearing’ (at [142]).

Justice Solomon provided a helpful summary of principles relevant to a fair trial (at [167]):

(a) a fair trial is a central pillar and fundamental element of the criminal justice system;
(b) although a fair trial is ordinarily achieved by compliance with applicable legal rules and principles, the notion of a fair trial is broader than, and transcends, prescribed legal norms. A trial may be unfair even though conducted strictly in accordance with law;
(c) it is neither possible nor desirable to formulate exhaustively the content or the attributes of a fair trial. Evaluating the fairness of a trial must proceed on a case-by-case basis and is essentially a matter of intuitive judgment;
(d) fairness in a trial is not to be equated with populist or idiosyncratic notions of what is fair and just but rather is to be determined by reference to legal reasoning and precedent;
(e) at the same time, the practical content of a fair trial will vary with changing social standards, societal sensitivities and evolving knowledge. In isolated cases of such a nature, established precedent and historic legal reasoning may not be wholly adequate to identify and remedy unfairness;
(f) a fair trial is necessary to avoid a miscarriage of justice. It may be said at a level of generality that a miscarriage of justice will arise whenever the accused has not had a fair trial;
(g) a miscarriage of justice is a standard, not a rule;
(h) a substantial miscarriage of justice will have occurred if the trial involved a departure from the essential requirements of a criminal trial that goes to the root of the proceedings, or there was a failure to observe the requirements of the criminal process in a fundamental respect. That is so even if the accused’s guilt has been established beyond reasonable doubt.

Applying those principles to the present case, Solomon J found that Mr Murray’s trial departed in a fundamental way from the requirements of a fair trial for two reasons. First (and most notably), because of the denial of Mr Murray’s language, and second, because the magistrate’s attitude towards Mr Murray ‘had all the hallmarks of at least the impression of an unfair prejudgment of Mr Murray’s character and the integrity of his testimony’ (at [175]).

Denial of linguistic distinctiveness

Justice Solomon’s first reason for finding that the trial was unfair is novel and represents some significant development of the law in relation to a fair trial – a point his Honour made himself in the judgment:

I am conscious that there is no clear precedent for the proposition that a trial in which a fulsome interpretation was provided was nevertheless fundamentally unfair in the way asserted in this case by Mr Murray. (at [162])

Indeed, as Solomon J noted in the summary of relevant principles, ‘established precedent and historic legal reasoning may not be wholly adequate to identify and remedy unfairness’ and it is necessary to consider each trial ‘on a case-by-case basis’(at [167]). Thus, in appropriate cases, novel developments are necessary. Ultimately, Solomon J was unequivocal in deciding that this was one such appropriate case – that the denial of an Aboriginal person’s linguistic distinctiveness, in the context of all the relevant circumstances and social realities, contributed to an unfairness which went to the root of the process

The stark reality is this: a criminal prosecution of a Walmajarri man proceeded in the face of the court’s express denial of the linguistic distinctiveness of the accused. Unintended though it was, this cannot be regarded as fair and just. The injustice is all the more troubling because the denial of linguistic identity relates to the language and culture that evolved from antiquity in our very own landscape… If the court is to keep apace with community standards, it must apply the community standard reflected in the sentiments of the [Supreme Court’s] Reconciliation Statement to the concrete reality of the justice system. (at [174])

Appearance of prejudgment

Whilst equally pertinent, Solomon J’s second reason for finding that the trial was unfair is not so novel – it relates to well-established principles about reasonable apprehension of bias and prejudgment. Justice Solomon found that the magistrate’s attitude was not consistent with requirements for an appearance of impartiality:

There seems to me to be no escape from the conclusion that magistrate was in substance expressing, in Mr Murray’s presence, an erroneous view about the genuineness of Mr Murray’s need for interpretation and therefore an erroneous view about the honesty of Mr Murray’s approach to the giving of evidence generally. (at [175])

…it certainly cannot be said with any confidence that Mr Murray did not feel prejudged and denigrated by the magistrate’s comments. It hardly needs to be said that erroneous remarks from the Bench reflecting adversely on the evidence of an accused as they begin to give their evidence is inconsistent with a fair trial. It is not difficult to imagine that the impact on an accused’s capacity to give their evidence coherently in such circumstances might be severely compromised. (at [178])

Accordingly, Solomon J concluded that the trial represented ‘an unacceptable and fundamental departure from the required standard of a fair trial’ and that this unfairness ‘went to the root of the process’. The unfairness was not ameliorated by the interpreter continuing to interpret after the magistrate’s comments – Solomon J noted that it ‘could not redeem this trial from the consequences of the magistrate’s unintended but irretrievably unfair treatment of Mr Murray’ (at [180]). Justice Solomon set aside Mr Murray’s conviction and noted that submissions would be sought from the parties as to whether a retrial should be ordered (at [182]).

Other Matters

Appeals from the Magistrates Court

After finding that Mr Murray’s trial was unfair, Solomon J was careful not to lay blame or undue criticism on the particular magistrate or the Magistrates Court generally. As put eloquently in the judgment:

… the Magistrates Court is an extremely busy court in which some latitude must be given for the pressures that attend the administration of justice in a high-volume and necessarily fast-paced environment… the perch of appellate luxury makes for a comfortable and convenient position to make the sorts of observations contained in these reasons. The stark reality is that I have had some months to consider matters that the learned magistrate was required to deal with on the spot. I have no doubt at all that the Magistrates Court generally, and the learned magistrate in particular, do not lack for an appreciation of, or sensitivity to, the issues I have discussed in these reasons… It is important to appreciate that decisions of this court do not serve the function of admonition, and less still condemnation, of decisions the subject of appeal. Rather, they present the opportunity for the considered correction of error that will invariably occur from time to time in any environment, including the stressful and pressured atmosphere of the Magistrates Court. These reasons are therefore much less a criticism of the learned magistrate’s conduct than they are a manifestation of the system working as it should in the interests of justice. (at [181])

In the context of the particular issues raised by this trial, it is perhaps also relevant to note (although it was not noted in Solomon J’s judgment) that the learned Magistrate Gavin MacLean, who presided over Mr Murray’s trial in the Magistrates Court at Karratha, is himself an Aboriginal man.

Expert evidence

As a final point, a significant portion of the judgment concerned the admissibility of an expert report relating to socio-linguistics. Justice Solomon provided a handy summary of principles relevant to the admissibility of this kind of evidence at [123]. Whilst most of the report was admissible for various purposes, Solomon J found that the final part of the report was not admissible. As described in the judgment, that part

was where [the expert] set out his analysis of what he perceived to be the magistrate’s misunderstandings of Mr Murray’s evidence. [The expert] undertook a very detailed line-by-line and, in some instances, word-by-word analysis, of Mr Murray’s evidence. The report contains considered and insightful observations of potential difficulties that may have infected Mr Murray’s understanding of the questions being asked and the magistrate’s assessment of what was said in evidence. (at [60])

However, Solomon J found that the expert’s observations in the final part of the report were not particularly helpful in the appeal:

Rather than explanations as to how the failure to take account of Mr Murray’s traditional background led to an error in understanding his evidence, these observations are in substance well informed conjecture about potential problems that may have arisen in Mr Murray’s understanding of the question asked of him through the interpreter Mr Jenkins. The observations do not of themselves demonstrate that the learned magistrate assessed Mr Murray’s evidence in a manner that perpetrated an injustice. (at [61])

Ultimately, Solomon J decided that the final part of the report should not be admitted because it concerned an ‘ultimate issue’ – the assessment of Mr Murray’s credibility – which is for the Court itself to determine. Justice Solomon cited several leading authorities to arrive at this conclusion (including Farrell v The Queen (1998) 194 CLR 286, Jango v Northern Territory (No 4) [2004] FCA 1539, and Wotton v Queensland [2015] FCA 1075). These authorities (and other related cases) can be difficult to apply, creating a fine line between admissible and inadmissible expert opinion as to credibility (this matter has relevance beyond the specific context of First Nations witnesses, and has been an issue of particular interest for me for some time). In summary, these authorities establish that:

An ultimate conclusion about to the credibility or truthfulness of a particular witness is a matter for the fact finder and is, therefore, not a proper subject for expert opinion.
However, an expert may opine as to the existence of a condition, disability, or disorder which affects a witness’ capacity to give reliable evidence (so long as the opinion goes beyond matters of ordinary experience);
Similarly, an expert may give evidence on the language and communication difficulties and differences which are likely to be experienced by an Aboriginal witness.
Despite points 2 and 3, expert comments on particular parts or passages of evidence given by a witness at trial are likely to usurp the role of the fact finder. That is, those comments typically relate directly to the evaluation of testimony, which is an ultimate issue for the Court.

You can access Murray v Feast [2023] WASC 273, which was delivered on 27 July 2023, here.

Relevance: Western Australia v Glasfurd [No 7] [2023] WASC 49

Having just taught relevance to my current cohort of Evidence students, McGrath J’s decision in Glasfurd [No 7] stuck out to me as a straightforward application of relevance principles and the importance of temporal proximity in cases involving driving.

Relevantly, the State’s case in Glasfurd was that ‘at 6.30 [pm*] on 20 August 2021 the accused drove his vehicle at high speed, whilst intoxicated and in a reckless manner, causing a collision on Pier Street that resulted in the death of one pedestrian and injuring four other pedestrians’ (at [2]). The State proposed to bring evidence from five witnesses who each independently observed a black Range Rover (matching Glasfurd’s vehicle) driving dangerously between 6.30am and 9.30am that day. Some witnesses also identified features of the driver.

The State did not seek to characterise the witness accounts as propensity evidence pursuant to Evidence Act 1906 (WA) s 31A, instead arguing that the accounts were admissible as relevant circumstantial evidence which made it more likely that Glasfurd was driving dangerously at the time of the collision later in the day.

Ultimately, McGrath J found that each of the accounts were inadmissible on the basis of relevance as there was ‘insufficient temporal proximity between the alleged sighting of the accused allegedly driving his vehicle on the morning of the vehicle incident by each of the respective five witnesses and the time of the incident on Pier Street’ (at [22]).

Justice McGrath noted (at [23]): ‘If the driving formed part of a continuous driving episode, or was undertaken immediately prior to the vehicle incident, then the evidence has a basis of admissibility as relevant to a fact in issue, that is, the nature of the accused’s driving at the time of the incident. The accused’s driving in the years, months, weeks, day or on the day at another time is not relevant to a fact in issue, unless on the day the driving forms part of a continuous journey or is immediately before the vehicle incident. Therefore, I find the evidence the subject of the objection is inadmissible.’

Jamie Eric Glasfurd ultimately admitted guilt before the second day of his trial for Manslaughter. Prior to the trial, there were also several other pretrial decisions on admissibility of evidence. See Western Australia v Glasfurd [2022] WASC 403 relating to expert evidence and potentially prejudicial CCTV footage and images from the scene; Western Australia v Glasfurd [No 2] [2022] WASC 404 concerning the admissibility of a statement by a now deceased prosecution witness; Western Australia v Glasfurd [No 3] [2022] WASC 411 relating to the admissibility of an unrecorded admission; Western Australia v Glasfurd [No 4] [2022] WASC 443 and Western Australia v Glasfurd [No 6] [2023] WASC 26 both relating to propensity evidence; and, though technically not evidence under the Common Law, Western Australia v Glasfurd [No 5] [2023] WASC 25 in which McGrath J declined to exercise discretion to allow a view.

You can access Western Australia v Glasfurd [No 7] [2023] WASC 49, which was delivered on 10 February 2023, here.

* At the time of making this post, paragraph [2] apparently contains a typographical error, noting the time as 6:30am. Reference to the related judgments confirms that the relevant time of the Pier Street collision was actually 6:30pm, not 6:30am. This is material to note in a case where temporal proximity to the time of the collision is a key issue. I have corrected the time to read 6:30pm in my extract above.

Prior inconsistent statement: CND v Western Australia [No 2] [2022] WASCA 159

Brief summary:

In this case the Court of Appeal set aside CND’s conviction for sexual penetration without consent and ordered a retrial after fresh evidence emerged from a witness (KM) that the complainant had told her in a telephone call that the complainant ‘just decided to tell people that it was rape, that she made it up’.

In giving evidence on the appeal, the complainant rejected any suggestion that she admitted to lying about the allegations. As such, KM’s evidence as to what the complainant said to her would be admissible at trial as a prior inconsistent statement (under Evidence Act 1906 (WA) s 21). As a prior inconsistent statement, this would be relevant only to the complainant’s credibility (at [134]–[135]).

In many cases, it might be difficult to establish that a miscarriage of justice occurred where admissible evidence which goes only to credibility could not be adduced at trial. However, in this case the sole issue was the complainant’s lack of consent and in this regard the complainant’s credibility when giving evidence about her lack of consent was central.

The Court of Appeal found that if accepted, KM’s evidence had the potential to materially affect assessment of the complainant’s credibility, and thus, could cause the fact-finder to have doubt about whether the complainant’s evidence as to a lack of consent should be accepted (at [145]). Accordingly, a miscarriage of justice was established, the appeal was allowed, the conviction was set aside and a retrial before a different judge was ordered.

The judgment:

The judgment was delivered late last year. The judgment can be accessed here.

Updates, Future posts, and the Uniform Evidence Law

Updates have been less frequent than usual on this blog over the past 6–7 months. Those who know me will know that one reason for this is that I teach my Evidence Law unit at the University of Western Australia in semester 1 each year, so Evidence isn’t on my radar quite as much in the second half of the year (when I teach about health and medical law). Another reason is that, very sadly, I unfortunately lost a parent in December 2022 (after a very, very tough year).

As a result, there’s a bit of catching up to do! As noted in the ‘About’ section of this site, this blog only focuses on particular points and judgments of interest – it is not intended to be comprehensive and does not claim to provide updates on every important or interesting decision. Still, there have been a number of interesting recent decisions which I intend to cover over the coming months as I’m thinking about Evidence again.

Some subscribers might be interested to know that in light of the Law Reform Commission’s report last year and public statements from the Attorney General about Uniform Law being drafted for WA, my colleague Associate Professor Stella Tarrant and I have started to teach the Uniform Evidence Law (instead of the Common Law of Evidence) at UWA. We are not the first Western Australian law school to do so, and many Law Schools over east (including Melbourne Law School) transitioned to teaching the Uniform Law years before it was adopted in their jurisdictions.

Despite moving to teach the Uniform Law in my course, I will continue to post about Common Law developments here for the time being (until we hear more)! It does feel like we’ve been anticipating a move to the Uniform Law for decades now, but this time it really feels like the wheels are in motion.

All the best,

Aidan
aidan.ricciardo@uwa.edu.au
https://research-repository.uwa.edu.au/en/persons/aidan-ricciardo

‘Context evidence’, relevance and propensity reasoning

The Court of Appeal has delivered several recent judgments which relate to ‘context evidence’ – a form of evidence which does not go to establishing guilt, but which is only relevant to the evaluation of other evidence. Context evidence is to be distinguished from propensity evidence and other evidence which actually goes towards proof of the prosecution case. A particularly difficult consideration with evidence which is said to be adduced for context purposes is its relationship with the rules relating to propensity, and the risk that such evidence may be, in substance, being led for propensity purposes (and, indeed, the risk that even proper context evidence could be used by the fact-finder to engage in impermissible propensity reasoning).

HTN v Western Australia [No 2] [2022] WASCA 51 is one recent case which helpfully summarises some of the important principles enunciated in previous decisions and provides an example of their application. It also shows the importance of the distinction between directly and indirectly relevant evidence when considering these concepts. This appeal related to convictions for two counts of indecent dealing. Due to the complexity of the matter, it is not possible to provide in this brief blog post a full account of the evidence at trial, the appeal in relation to it, and the Court of Appeal’s disposition of the grounds. Those who are interested should read the case in full here. However, the following extracted paragraphs are particularly helpful to understand the matter, the concepts, and their application:

[32] The judge told the jury that [certain evidence given at trial] was relevant background as to the relationship between AC, the appellant and AMC. That was said to be context in which the alleged offences are said to have occurred and that ‘it makes their accounts more intelligible’.

[33] The judge gave further detailed directions about this, as follows:

“For example, it may provide a helpful context, or even necessary for an understanding of the narrative. It may explain a statement or event or conduct that would otherwise appear curious or unlikely. It may cut down or reinforce the plausibility of something a witness has said. It may assist you to use your common sense and experience of life to evaluate the evidence relevant to a particular event involving [AMC] or [TDC].”For example, it may provide a helpful context, or even necessary for an understanding of the narrative. It may explain a statement or event or conduct that would otherwise appear curious or unlikely. It may cut down or reinforce the plausibility of something a witness has said. It may assist you to use your common sense and experience of life to evaluate the evidence relevant to a particular event involving [AMC] or [TDC].

The State also says that the other conduct evidence shows that the offences alleged against [AMC] and [TDC] didn’t happen in a vacuum or out of the blue, and that they were not isolated incidents. It’s also something you’re able to take into account in determining whether you consider the evidence of [AMC] and [TDC] to be honest, accurate and reliable. For example, if a complainant gives evidence that certain behaviour happened repeatedly over time, it may be relevant to your assessment of their credibility and their ability to recount details of a specific event.

That is, it may be more difficult to recall a specific incident, if such incidents were happening repeatedly over time. It may also explain any delay or failure to complain. Now, whether you use the other conduct evidence in the ways that I’ve just described, and if so, to what extent, are matters entirely for you. The ways I have described are the only ways in which you can use the other conduct evidence.”

[34] The judge then directed the jury as to how they must not use the other conduct evidence:

Having said how you may use a finding based on the other conduct evidence, I now need to direct you on how you must not use that evidence.

The other conduct evidence cannot, in itself, prove any of the offences set out in the indictment. You cannot use the other conduct evidence in substitution, in any way, for the direct evidence of the incidents charged in relation to the offences set out on the indictment. Nor does it fill any gaps or make any other evidence more reliable. Any finding you make in relation to the other conduct evidence cannot and must not lead automatically to a finding of guilt of any of the offences set out in the indictment.

If you find that [AC] or [the appellant] did the other conduct, you must not reason that they must therefore have committed one or more of the offences set out on the indictment. It doesn’t follow that, because a person has on a previous occasion committed an act, that they did the same or a similar act on another occasion, or that they are the type of person likely to have committed these kinds of offences.

The ultimate question for you to decide, members of the jury, is whether, having regard to the whole of the evidence, the State has proved beyond reasonable doubt that the accused committed the acts constituting the offences against [AMC] and/or [TDC], as set out on the indictment. You mustn’t convict either accused of any of the offences set out in the indictment unless the State satisfies you beyond reasonable doubt that they committed the specific acts alleged to comprise that particular offence.

[48] [The grounds of appeal included:]

Ground 1A: the other conduct evidence of AMC in relation to count 1 was not probative and was highly prejudicial, giving rise to a miscarriage of justice.

Ground 1B: there was a real risk that the jury may have adopted propensity reasoning in relation to count 1 derived from, or based on, the other conduct evidence of AMC, thereby occasioning a miscarriage of justice.

[106] … in our view, to adduce evidence for the purpose of inviting the jury to reason that the fact that the accused had done something similar to the charged act on one or more other occasions made it more likely that the accused had committed the charged offence is to invoke propensity reasoning and to use the evidence as propensity evidence.

Ground 1A: disposition

[107] In our view, the use of the [evidence in order to make NC’s evidence appear less curious, unlikely, or implausible, as suggested by the respondent] involves or invites propensity reasoning and consequently was impermissible. As the respondent ultimately accepted, NC’s evidence as to count 1 was rendered ‘more plausible’ by the other conduct evidence only on the basis that the other conduct evidence established that the appellant and AC had done something similar on a different occasion. In that manner, in substance, the respondent invited a use of the other conduct evidence that involved reasoning to the following effect: the accused had done something similar to the charged act on a different occasion, which made it more likely that the accused committed the charged offence… to so use the other conduct evidence involves propensity reasoning.

[108] This conclusion cannot be avoided, as the respondent sought to do, by attempting to characterise the use of the evidence as (merely) assisting the evaluation of the credibility or reliability of NC’s evidence. As we have said, NC’s evidence as to count 1 was rendered more plausible only on the basis and to the extent that the other conduct evidence established that the appellant and AC had done something similar on a different occasion, and thus, by implication, were more likely to have engaged in the charged conduct. Reasoning founded on that basis is, in substance, a matter of direct relevance. Its character cannot be altered by framing the position in terms of rendering the account given by NC more plausible.

[109] Properly understood, the use invited by the respondent is not of the kind explained by Gleeson CJ [as potentially relevant and admissible] in HML v The Queen… In speaking of the plausibility of what a witness has said, Gleeson CJ was referring to one or more particular features of the account given by a witness of the circumstances attending the offence, not to the plausibility of the offending itself…

[110] In substance, the respondent invites use of the other conduct evidence to reduce the implausibility of the occurrence of the charged offence, not to reduce the implausibility of a factual feature of a witness’ account of the offending conduct and its circumstances. In the present case, the respondent’s submissions did identify implausibility in some particular features of NC’s account, namely that the conduct did not stop when she confronted them and continued to the point where she had to remove the children.[93] Otherwise, it was simply the fact of the commission of the offence which was said to be extraordinary and implausible. The other conduct evidence does not have the specific features of continuing in front of an adult, or any similar feature. Thus, the other conduct evidence does not itself reduce the implausibility arising from the identified feature of NC’s account. Rather, the other conduct evidence seeks to overcome the apparent implausibility of NC’s account by its appeal to propensity reasoning.

[111] The distinction drawn in [108] above – between using evidence to make the charged conduct more likely and using evidence only to place other prosecution evidence in context – is supported by this court’s recent decision in LNN v The State of Western Australia. In that case, the dispositive elements of the court’s reasoning draw, and mark, the distinction between evidence of uncharged sexual offending adduced as propensity evidence and such evidence adduced as context evidence. The court explained that context evidence is evidence that does not go towards establishing guilt, but is only relevant to evaluation of other prosecution evidence. The court contrasted context evidence with other evidence, including propensity evidence, that goes towards proof of the prosecution case. A real risk of propensity reasoning arose in LNN, the court found, because the judge’s direction left it open to the jury to reason that the accused in that case was more likely to have committed the charged offences because of his other uncharged offending.

[113] The position in the present case has some analogy to this court’s recent decision in JEL v The State of Western Australia, in which the court rejected the distinction advanced by the respondent between (i) using evidence to ‘broadly support the complainant’s credibility’ and (ii) inviting propensity reasoning.

[115] For these reasons, in our opinion, the use of the other conduct evidence invited by the respondent was, and is, impermissible because it is, in substance, a propensity use of the evidence.

[116] …the evidence was irrelevant.

[117] … In our opinion, a miscarriage of justice occurred because the judge directed the jury that the other conduct evidence was relevant to their consideration of count 1 in circumstances when, for the reasons we have explained, it was not relevant to that count. That, in itself, occasioned a miscarriage of justice.

[118] In our respectful opinion, the conclusion that the admission of the evidence occasioned a miscarriage of justice is reinforced by consideration of the judge’s direction as to the manner in which the jury was permitted to use the other conduct evidence.

[119] The judge told the jury that this evidence was relevant background as to the relationship between AC, the appellant and AMC. That was said to be context in which the alleged offences are said to have occurred and that ‘it makes their accounts more intelligible’.

[120] The judge gave further detailed directions about this, as follows:

“For example, it may provide a helpful context, or even [be] necessary for an understanding of the narrative. It may explain a statement or event or conduct that would otherwise appear curious or unlikely. It may cut down or reinforce the plausibility of something a witness has said. It may assist you to use your common sense and experience of life to evaluate the evidence relevant to a particular event involving [AMC] or [TDC].

[121] It is apparent that, in so directing the jury, the judge identified a number of permissible uses for the evidence. The judge told the jury that the other conduct evidence was background and context that ‘makes [the complainant’s] accounts more intelligible’, saying, by way of example that:
(1) The evidence ‘may provide a helpful context or even [be] necessary for an understanding of the narrative’.
(2) The evidence ‘may explain a statement or event or conduct that would otherwise appear curious or unlikely’.
(3) The evidence ‘may cut down or reinforce the plausibility of something a witness has said’.
(4) The evidence ‘may assist [the jury] to use [their] common sense and experience of life to evaluate the evidence relevant to a particular event involving [either complainant]’.

The judge then identified the following further permissible uses of the other conduct evidence:
(5) To show that the offences alleged against the complainants did not happen in a vacuum or out of the blue and were not isolated incidents.
(6) To take it into account in determining whether the jury was satisfied that the evidence of each complainant was honest, accurate and reliable, giving an example that if a complainant gave evidence that certain behaviour happened repeatedly over time, it may be relevant to the jury’s assessment of the complainant’s credibility and the complainant’s ability to recount details of a specific event.
(7) To explain any delay or failure to complain.

[123] First, it is, in our respectful opinion, undesirable and inappropriate for a judge directing a jury to attempt to deal compendiously with various species of other conduct evidence, some of which were capable of being put to one (or more) use, and others of which were capable of being put to a different use, and which related to different counts and to different accused. As recently emphasised in JEL, specificity and precision is of vital importance in this area.

[124] Secondly, we have already explained why, contrary to the respondent’s submission, the second and third uses identified in [121] above were not available or permissible. The same was true of all of the uses of the other conduct evidence identified in [121]…

[125] Many of the uses identified in [121] simply made no sense…

[127] Thirdly, again with respect, it is difficult to avoid the conclusion that this direction involves the use of a template without the necessary attention being given to which, if any, aspect of the template is apposite to the particular evidence the subject of the direction.

[129] For these reasons, ground 1A is made out.

Ground 1B: disposition

[130] We are comfortably satisfied that, in all the circumstances, there was a real risk that the jury may have reasoned along the lines that the other conduct evidence proved that the two accused had acted on another occasion in a manner similar to count 1 and that this made it more likely that they committed count 1. It is reasonably possible that the jury may have so reasoned in response to the parts of the trial judge’s direction on which the respondent relied in its submissions. More generally and in any event, the jury may have embarked upon such reasoning, based upon their own logic and experience, and bearing in mind the evident similarity between the events described in this part of AMC’s other conduct evidence and the conduct the subject of count 1.

[132] …ground 1B is established.

[133] … In our view, the miscarriage of justice arising from these matters is not [confined to count 1]. For the reasons already given, the judge’s direction gave rise to a real risk that the jury would reason, by reference to AMC’s other conduct evidence, that the appellant and AC having behaved in a similar manner in the incident the subject of the other conduct evidence made it more likely that they acted as alleged in relation to count 1. Given that counts 1 ‑ 3 involved a single incident said to have occurred in the presence of the three children, and given that the State case relied, in respect of all three counts, on the same evidence, it would be to expect the jury to perform unrealistic mental gymnastics for them to reach a different conclusion on the question of whether the conduct occurred as between counts 1 and 2.

[134] For these reasons, we are satisfied that the wrongful admission of the other conduct evidence in the case against the appellant, and the consequential risk of the jury using propensity reasoning, gave rise to a miscarriage of justice in relation to both count 1 and count 2.

Propensity and Relationship Evidence in WA

The Law Reform Commission of Western Australia’s Final Report for ‘Project 112: Admissibility of Propensity and Relationship Evidence in WA’ was tabled in the Western Australian Parliament on 17 August 2022.

The Attorney General asked the Commission to respond to this question: ‘Having regard to section 31A of the Evidence Act 1906 (WA) and the more recently introduced section 97A of the Model Uniform Evidence Bill, what rules should apply to determine the admissibility of propensity and relationship evidence, and other evidence of discreditable conduct, so that all relevant evidence is available to West Australian courts, while also ensuring the right to a fair trial?’

This inquiry took place in the context of Western Australia’s likely adoption of the Uniform Evidence Law in the future. The Uniform Evidence Law has been enacted in the Commonwealth jurisdiction, as well as in Victoria, New South Wales, Tasmania, the Australian Capital Territory, and the Norther Territory. As set out in the Final Report: ‘it is a matter of public knowledge that new evidence legislation is currently being drafted to replace the Evidence Act. The new Act will adopt the UEL but will retain any Western Australian evidentiary provisions that are deemed sound’ (at page 5).

Ultimately, the Commission recommended that: ‘If the Uniform Evidence Law is enacted in Western Australia, it should adopt the Uniform Evidence Law’s approach to tendency and coincidence evidence, rather than inserting a reformulated version of section 31A of the Evidence Act’ (recommendation 1).

The Commission reached this view for a number of reasons. First, it noted the conceptual issue in that s 31A currently operates on the premise that propensity and relationship evidence is inadmissible unless it meets the requirements of s 31A. However, the Uniform Law makes all relevant evidence admissible unless otherwise provided (with the tendency and coincidence provisions then operating to render certain relevant evidence inadmissible). The Commission noted that the benefits of adopting the uniform provisions ultimately justified adopting the uniform approach rather than reformulating s 31A to work in the conceptually distinct Uniform Law context. Those benefits include a more uniform approach to the admission of propensity and relationship evidence throughout Australia; the utility of the body of case law concerning the uniform provisions from those jurisdictions; and that the uniform provisions are ‘easier to understand and apply than the s 31A test’ (at pages 8–10).

The Commission further recommended that:

‘The tendency and coincidence provisions should be available to assist in proving all offences, whether they are of a sexual nature or otherwise’ (recommendation 2);

‘A version of section 97A of the Uniform Evidence Law, which contains rebuttable presumptions concerning the admissibility of tendency evidence in criminal proceedings concerning child sexual offence, should be enacted. That provision should only apply to child sexual offences. It should make it clear that a child sexual offence includes an attempted child sexual offence. The provision should not apply to coincidence evidence’ (recommendation 3);

‘Parties should be required to provide notice of their intention to adduce tendency or coincidence evidence. The nature of the details that should be included in the notice, and the time within which the notice must be given, should be determined by the rules of court’ (recommendation 4); and

‘A version of section 101 of the Uniform Evidence Law that is currently in operation in the ACT, NSW and the NT, should be enacted so that tendency and coincidence evidence about the accused cannot be used against the accused unless the probative value of the evidence outweighs the danger of prejudice to the accused’ (recommendation 5).

You can access the Commission’s Final Report here.

Recognition evidence: is a Domican warning required?

Background:

Judges are required to give a Domican warning to the jury (or to themselves in a trial by judge alone) in many trials where identification evidence is admitted as part of the prosecution case and its reliability is disputed. Domican warnings are given because courts have special knowledge that miscarriages of justice have occurred because of evidence from honest and convincing, but mistaken, witnesses who may incorrectly identify a person or their characteristics as matching the offender.

Domican warnings need to be given in any case involving a positive identification, and may need to be given in cases involving circumstantial resemblance identification evidence (where identification evidence forms a significant part of the proof of guilt).

But what about in cases where the evidence identifying an accused person is properly characterised as ‘recognition evidence’ rather than ‘identification evidence’? That is, evidence from ‘a witness who recognises an accused as the offender in circumstances where the accused was previously known to the witness or had previously been seen by the witness other than at or near the crime scene’ (see Mills v The State of Western Australia [2008] WASCA 219, [73] per Buss JA).

In ISN v The State of Western Australia (No 2) [2021] WASCA 112, the Court of Appeal considered whether recognition evidence required a Domican warning.

ISN v The State of Western Australia (No 2) [2021] WASCA 112:

In the District Court, the appellant was tried by jury and subsequently convicted of four sexual offences against a child under the age of 13 years (called ‘T’). At trial, the defence argued that T was mistaken in thinking that ISN was the person who abused her. T’s evidence identifying ISN was properly classed as recognition evidence because T had known ISN her entire life, in circumstances where ISN was a frequent visitor to her family home and often stayed over on weekends, when ISN and T’s father would drink alcohol.

On appeal, it was argued that the trial judge was obliged to, but did not, ‘give a comprehensive Domican warning’ (at [92]). The Court of Appeal first considered whether Domican warnings ordinarily need to be given in cases of recognition, before turning to the specific question of whether a Domican warning needed to be given in this case.

Do recognition cases ordinarily require a Domican warning? In short, the Court of Appeal concluded that Domican directions are not usually required for recognition evidence, but there are exceptions. As put by the Court of Appeal:

‘A Domican warning… is not mandated for cases involving recognition. This is because, generally speaking, recognition evidence is more reliable than a stranger’s evidence of identification. Nevertheless, ordinarily in cases involving recognition, a jury is reminded that mistakes in recognition, even of close relatives or friends, are sometimes made… However, there will be recognition cases which, having regard to the particular circumstances, involve just as much danger of mistaken identification as cases involving the identification of a stranger. In these cases, a Domican warning is required.’ (at [96]–[97])

Did T’s evidence require a Domican warning? Ultimately the Court of Appeal found that it may have been preferable for the trial judge to have given a more comprehensive and specific warning about the reliability of T’s evidence. However, having regard to the nature of the trial and the directions which were given, the trial judge did not err (at [103]).

The trial judge had given a Longman direction and provided general warnings about the fallibility of human memory and the possibility of mistaken recollection (at [101]). Further, there was no prospect that the jury would not have considered the possibility that T was mistaken in her recognition of ISN as the offender:

‘As the element of identity was the only element in issue in the case, it is inconceivable that the jury would not have had regard to the possibility that T was honestly mistaken in her evidence of recognition. The jury was made aware of the experience of judges and lawyers that mistakes can happen and that innocent people can be convicted as a result of mistaken recognition evidence.’ (at [100])

Accordingly, the ground of appeal was not successful. The appeal was ultimately dismissed (as the other grounds of appeal were also not made out).

The judgment:

The judgment was delivered last year (but I’ve only now gotten around to writing about it as I taught identification and recognition just last week in my Evidence law course). The judgment can be accessed here.

Hearsay and ‘second-hand’ admissions

Background:

The hearsay rule prevents an out of court assertion from being led in court to prove the truth of that assertion. Admissions against interest are a well-established exception to the rule against hearsay. So for example, consider a situation in which an accused person (A) tells their friend (B), out of court, that they (A) stole a car. At A’s trial for stealing the car, witness B may give evidence that A made that admission to B. Pursuant to the admissions exception, B’s evidence can be used for its truth: to prove that A not only made the admission, but also to prove the truth of what A said… that is, that A stole the car.

Admissions might be express (as in the example above) or implied (eg, through A failing to deny an allegation B makes against them in circumstances where A’s denial would be expected if the allegation were untrue).

In TWR v The State of Western Australia [2022] WASCA 24, the Court of Appeal considered the admissibility of evidence from the complainant’s mother about messages sent to her by the appellant’s wife, which were said at trial to constitute implied admissions by the appellant.

TWR v The State of Western Australia [2022] WASCA 24:

In the District Court, the appellant was tried by jury and subsequently convicted of four counts of sexually penetrating a child under the age of 13 years and three counts of indecently dealing with a child under the age of 13 years. At trial, the prosecution adduced evidence of WhatsApp messages exchanged between the complainant’s mother and the appellant’s wife. This evidence was adduced through the complainant’s mother (at [6]). In that message exchange, the complainant’s mother accused the appellant of ‘sexual advances’ which included ‘inappropriate touching and more horrific gestures’ against the complainant. The appellant’s wife indicated in her responses that she had spoken with her husband, and that he promised he would stay away from the complainant and her mother at all times.

As put by the Court of Appeal:

‘The prosecutor relied on these text messages as constituting implied admissions by the appellant, made through his wife, that he had engaged in sexual conduct with the complainant. The implied admission was said to arise from the absence of a denial of the offending and failure of the appellant to ask for details of the allegations. The trial judge gave the jury detailed directions about the circumstances in which they could use the text messages as an implied admission of guilt.‘ (at [11])

One ground of appeal contended that the trial judge erred by allowing the messages to be used as an implied admission by the appellant. This ground was conceded by the State at the appeal.

In essence, the Court of Appeal noted that the admissions exception to the hearsay rule did not apply to the evidence adduced through the complainant’s mother. Whilst ‘[t]he appellant’s wife could have given evidence of admissions against interest made by the appellant directly to her, under an exception to the rule against hearsay… the complainant’s mother could only give direct evidence about what the appellant’s wife said that the appellant had said.’ (at [12])

The Court of Appeal, citing East Metropolitan Health Service v Popovic [2019] WASCA 18, said that leading the complainant’s mother’s evidence in that way would infringe the hearsay rule because it involved using ‘out of court statements, made by the appellant’s wife about what the appellant had been told, and said in response, as evidence of the truth of what the appellant had been told by, and said to, his wife. The hearsay rule precluded that use of the mother’s evidence of the wife’s out-of-court statements to prove the truth of the wife’s statements. None of the exceptions to the hearsay rule were applicable.’ (at [12])

In short, the prosecution used the complainant’s mother’s evidence of the wife’s statements for a hearsay purpose, and the admissions exception did not apply as the statements were not made by the accused.

The State did not contend that a substantial miscarriage of justice had not occurred. The Court of Appeal ultimately allowed the appeal on this ground, setting aside the appellant’s convictions and ordering a retrial (at [13]).

An additional ground of appeal contended that the trial judge erred by directing the jury that they could consider certain statements the complainant said to her mother in 2017 and 2018 as recent complaints which could bolster the complainant’s credibility (at [16]). The Court of Appeal noted that neither of those statements should be characterised as recent complaints (at [22]), and that if they were to be admitted in the retrial for some other reason, that ‘the jury in the new trial should not be directed that the evidence can be used to bolster the complainant’s credibility or demonstrate consistency of her conduct.’ (at [27])

The judgment:

The judgment was delivered in February 2022 and can be accessed here. My thanks go to Matthew Thompson for bringing this decision to my attention.

Proof of Subsidiary Legislation

Background:

There is a line of authority in Western Australia requiring that subsidiary legislation be proved in evidence. This was most clearly put in Norton v The Queen [2001] WASCA 207, in which Roberts-Smith J (with Wallwork J and Pidgeon AUJ agreeing) said:

‘…the authorities establish that in the absence of a statutory provision so directing, judicial notice cannot be taken of delegated legislation and such legislation must be formally proved’. ([162])

This was later accepted as a correct representation of the law in Western Australia by four members of the High Court in Ostrowski v Palmer [2004] HCA 30.

In Ireland v Jackson [2021] WASC 362 and Montalbano v Morris [2019] WASC 309 (both traffic conviction appeals from the Magistrates court brought by self-represented appellants), submissions from the respondent (represented by the State Solicitor’s Office) have suggested various legislative bases for notice or proof of subsidiary legislation.

Montalbano v Morris [2019] WASC 309:

In Montalbano, the respondent submitted that the magistrate should be taken to have had judicial notice of the relevant instrument in the Government Gazette because it formed part of the Road Traffic (Administration) Act 2008 (WA). The respondent argued that this was so because s 53(1) of the Evidence Act 1906 (WA) – which provides for judicial notice to be taken of Acts of various Parliaments – extends to the relevant instrument by virtue of s 46 of the Interpretation Act 1984 (WA), which sets out that ‘A reference in a written law to a written law shall be construed so as to include a reference to any subsidiary legislation made under that written law’.

Ultimately, Tottle J found that s 53(1) of the Evidence Act 1906 (WA) does not direct courts to take judicial notice of subsidiary legislation because it:

‘… does not contain a reference to a written law in the sense that that phrase is used in s 46 of the Interpretation Act 1984. It contains a generic reference to “Acts of the Parliament of the United Kingdom and of the Commonwealth, and of any State, and of any Australasian colony, passed before or after the commencement of this Act”. Further, the language used in s 53(1)(b) discloses an intention that is contrary to the expansive construction of “Acts of Parliament” contended for by the respondent. Section 53(1)(b) refers to “Acts of Parliament … passed …”. Acts are “passed” but subsidiary legislation is not. For these reasons s 46(1) of the Interpretation Act 1984 is not engaged by s 53(1)(b) of the Evidence Act 1906 and does not operate to oblige courts to take judicial notice of subsidiary legislation.’ ([42])

Ireland v Jackson [2021] WASC 362:

Montalbano was recently referred to by Allanson J in Ireland. In that case, the respondent submitted that Commonwealth evidence legislation operated to allow notice to be taken of Western Australian subsidiary legislation. The respondent pointed to s 143 of the Evidence Act 1995 (Cth), which relevantly sets out that proof is not required of an Act (including a State Act), nor of a regulation, rule, by-law, or other instrument of a legislative character which is made ‘under such an Act’. The respondent argued that s 143 applies because s 5 of the same Act names s 143 as one of a handful of provisions which apply to ‘all proceedings in an Australian court’, where the term ‘Australian court’ includes all State and Territory courts.

Justice Allanson set out a number of reasons which support an interpretation consistent with the respondent’s submissions, but noted the conclusion reached by Tottle J in Montalbano and previous authorities:

‘The question is whether, when s 143(1)(b) refers to a regulation “made … under such an Act or Ordinance”, it includes a State Act or is confined to an Act of the Australian Parliament or of a Territory. There are arguments for why it should not be so confined. First, the same expression should be given a consistent meaning throughout the section. Section 143(1)(c) refers to a proclamation or order of the Governor of a State made under ‘such an Act or Ordinance’. I am not aware of any circumstance in which the Governor of a State may make a proclamation or order under an Act of the Australian Parliament, or an Act or Ordinance of a Territory.

Second, s 143(1)(d) is also, on its face, of wide operation in referring to “any government or official gazette” rather than a gazette of the Commonwealth or a Territory.

There is, however, a clear line of authority, discussed by Tottle J in Montalbano v Morris, that in Western Australia regulations must be proved in evidence. His Honour was referred to the Commonwealth Evidence Act, but it did not affect his conclusion.’ ([68]–[70])

The respondent also put an alternative argument based on s 8 of the Reprints Act 1984 (WA), which provides that a reprint of any written law under the Act shall be judicially noted. Justice Allanson described that submission as follows:

‘The argument is attractively simple. By s 5 of the Interpretation Act 1984 (WA), a written law means all Acts for the time being in force, and all subsidiary legislation for the time being in force. The Road Traffic Code is subsidiary legislation, and has been reprinted. Section 8 of the Reprints Act provides for judicial notice of that reprint.

Given the extent to which a reprint may alter the text of a written law, under s 7 of the Reprints Act, it would be an odd result were the court to take judicial notice of those changes but not the original underlying text.’ ([71]–[72])

However, Allanson J noted that it was difficult to determine the relevant ground of appeal because the appellant was unrepresented and the issues relating to the Evidence Act 1995 (Cth) and the Reprints Act 1984 (WA) were thus ‘only argued on one side.’ As the appeal was successful on a separate ground, Justice Allanson ultimately found that it was unnecessary to determine this ground of appeal, noting that ‘It should be left to be fully argued on another occasion.’ ([73])

Comment:

It remains unclear whether s 143 of the Evidence Act 1995 (Cth) or s 8 of the Reprints Act 1984 (WA) – which were not the basis of substantial consideration in the cases forming the ‘clear line of authority’ – could provide an exemption from the requirement to formally prove subsidiary legislation in Western Australia. On the basis of that uncertainty and the ‘clear line of authority’, it would presently appear prudent for a party relying on subsidiary legislation to formally prove it in court.