Other s 106 issues

12.79 Another issue raised is whether s 106 should be amended to allow rebuttal evidence in respect of the credibility of a witness to be adduced if the witness has ‘not admitted’ the substance of particular evidence put to the witness on cross-examination,[90] for example, where the witness answers that he or she does not recall. There was some opposition to this amendment.[91] In DP 69, the Commissions expressed the preliminary view that unless a broad interpretation is given to the requirement of denial, there will be cases where a witness claims a lack of recollection and other evidence supporting the allegation put to the witness should be received.

12.80 In DP 69, the Commissions addressed another issue raised in relation to s 106. That was whether the phrase ‘a false representation while under a legal obligation … to tell the truth’ in s 106(2)(e) would enable the admission of evidence to prove that any answer given by a witness in cross-examination was a lie,[92] making all other exceptions in s 106 redundant.[93] The Commissions concluded that, even if that construction is open, it should, applying the rules of statutory construction, be rejected because it would render the rest of the section redundant. It was clearly not the intention of the legislature.[94]

The Commissions’ view

12.81 The Commissions maintain the view expressed in DP 69 that amendment of s 106 is warranted to include the situation where matters are put to a witness in cross-examination and not admitted. While it is possible courts may give the current requirement of denial a broad interpretation,[95] it would be unwise to rely on this in light of the past strict literal interpretation of a number of other sections. Accordingly, the provision should include the situation in which the witness has denied the substance of the evidence or does not admit or agree to it.

12.82 In relation to the suggested possible interpretation of s 106(2)(e), the Commissions maintain the view that there is no need to change the words of the section to avoid that construction, as the rules of statutory interpretation would prevent that outcome in any event.

12.83 Therefore, the Commissions’ recommended amendments to s 106 are twofold. First, to allow the court to grant leave to lead evidence outside the categories currently listed in the uniform Evidence Acts. Secondly, to allow that evidence may be led where the matter has been put to the witness in cross-examination and either denied or not admitted or agreed to.

Recommendation 12–5 Section 106 of the uniform Evidence Acts should be amended to enable evidence to be adduced with the leave of the court to rebut denials and non-admissions in cross-examination. Leave should not be required to adduce evidence of the kind presently identified in paragraphs (a) to (e) of s106.

[90] Ibid, Proposal 11–5, [11.92].

[91] Director of Public Prosecutions (NSW), Submission E 17, 15 February 2005.

[92] C Maxwell, ‘Credibility, Collateral Facts and the Evidence Act’ (1996) 8(7) Judicial Officers Bulletin 51, 51–52. Note that the section presumably applies to non-curial situations—eg, to statutory declarations.

[93] J Anderson, J Hunter and N Williams, The New Evidence Law: Annotations and Commentary on the Uniform Evidence Acts (2002), [106.35]; S Odgers, Uniform Evidence Law (6th ed, 2004), [1.3.8220]. This point was left open in R v Spiteri (2004) 61 NSWLR 369, [50]–[51]: Chief Justice P Underwood, Consultation, Hobart, 15 March 2005.

[94]Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297, 303, 311, 321; Norton v Long [1968] VR 221, 223 applying the maxim, ut res magis valeat quam pereat.

[95] J Anderson, J Hunter and N Williams, The New Evidence Law: Annotations and Commentary on the Uniform Evidence Acts (2002), [106.40]–[106.45], relying on R v Souleyman (Unreported, New South Wales Supreme Court, Levine J, 5 September 1996).