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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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