The statutory warning

18.29 The uniform Evidence Acts introduce a more flexible warning regime, intended to replace the common law corroboration warning requirements. Section 164 abolishes the common law warning requirements. Section 165 provides:

(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence:

(a) evidence in relation to which Part 3.2 (hearsay evidence) or 3.4 (admissions) applies;

(b) identification evidence;

(c) evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like;

(d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding;

(e) evidence given in a criminal proceeding by a witness who is a prison informer;

(f) oral evidence of official questioning of a defendant that is questioning recorded in writing that has not been signed, or otherwise acknowledged in writing, by the defendant;

(g) in a proceeding against the estate of a deceased person—evidence adduced by or on behalf of a person seeking relief in the proceeding that is evidence about a matter about which the deceased person could have given evidence if he or she were alive.

(2) If there is a jury and a party so requests, the judge is to:

(a) warn the jury that the evidence may be unreliable; and

(b) inform the jury of matters that may cause it to be unreliable; and

(c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.

(3) The judge need not comply with subsection (2) if there are good reasons for not doing so.

(4) It is not necessary that a particular form of words be used in giving the warning or information.

18.30 Section 165(5) expressly preserves the common law power of the judge to give a warning or inform the jury. This has been interpreted by the courts as also preserving the judge’s common law obligations to give a warning.[76] Hence, even if a warning is not required pursuant to s 165(1)–(4), the trial judge may still be required to give a warning at common law.

18.31 The Evidence Act 1995 (NSW) contains additional sections which preclude the giving of warnings in relation to the reliability of children’s evidence except in accordance with s 165B of that Act.[77]

When a statutory warning is required

18.32 Where a warning is requested pursuant to s 165, the trial judge may refuse the request on two grounds: first, the evidence is not ‘of a kind that may be unreliable’ according to s 165(1); and secondly, the evidence is ‘of a kind that may be unreliable’ but there are ‘good reasons’ for not giving a warning.[78] Where a party fails to make a request pursuant to s 165, the trial judge may nonetheless be obliged to give a warning if the evidence is ‘of a kind that may be unreliable’ and the warning is necessary to ensure a fair trial.[79] The failure to give an appropriate or adequate warning in accordance with the requirements of s 165(1)–(4) may constitute a miscarriage of justice.[80]

18.33 The obligation to give a statutory warning may arise in respect of evidence falling within the categories listed in s 165(1) and also in respect of other evidence of a ‘kind that may be unreliable’.[81] The uniform Evidence Acts provide no indication of the breadth of the test of unreliability, nor do they specify what might constitute ‘good reasons’ for refusing to give a warning. While it is generally agreed that the scope of s 165(1) is not as broad as a literal reading of the provision might suggest,[82] the case law is divided in the approach taken to limiting the circumstances in which an obligation is said to arise. One approach has been to read down the scope of ‘unreliability’ and hence application of s 165(1); another has been to take a broader view of the application of s 165(1) and focus on any ‘good reasons’ for refusing to give a warning in the particular circumstances of the case.

18.34 Where the evidence comes within one of the categories listed in s 165(1), a question arises as to whether the section applies automatically or whether there must also be circumstances indicating that the evidence might actually be unreliable. The predominant view is the latter,[83] illustrated in the following statement by Heydon JA in R v Clark:

[T]he issue is not limited to whether [B] is a witness within the language of par (d), but whether the evidence which he, being a s 165(1)(d) witness, gave was ‘of a kind’ that might be unreliable … Whether [B’s] evidence was of that kind depends on the circumstances.[84]

18.35 Limiting the obligation through the application of s 165(1) compels the trial judge to consider whether the particular evidence may be unreliable, as opposed to assuming that a warning should be given in respect of every piece of evidence which is ‘of a kind’ which may be unreliable unless the circumstances of the case indicate that the ‘good reasons’ exception may be invoked. This more contextualised approach accords with the policy expressed in ALRC 26, shifting away from the attitude that warnings should be given as a matter of course.

It has been suggested that as all evidence may be unreliable or may be given incorrect weight, the judge will have to give a warning in respect of any evidence within the categories listed. It is thought, however, that this should not occur because the section, properly construed, clearly assumes that evidence coming within the categories may be reliable and unlikely to be given incorrect weight. It makes it clear that it is not enough to demonstrate that evidence comes within one or more of the categories. Before the judge must consider giving a warning, it must also be shown that the evidence may be unreliable or open to misestimation.[85]

18.36 In relation to evidence falling outside the categories listed in s 165(1), authorities have also been divided as to the scope of the section’s application. Some authorities have taken a broad view, holding that the section applies where a party points to an aspect of the evidence which suggests that it may be unreliable, such as inconsistencies in a particular witness’ testimony.[86] However, recent authorities demonstrate a trend towards a more restrictive approach.

18.37 Given that ‘evidence given by all witnesses may be unreliable’,[87] some authorities have accepted as a matter of logic that ‘the idiosyncrasies and particular potential deficiencies of a given witness do not of themselves make that witness a member of a “kind”’.[88] However, other cases have narrowed the application of s 165 by reference to the rationale underpinning the common law warnings.

Where a matter which might adversely affect the reliability of evidence in a trial would readily be understood and appreciated by a jury because it falls within their general experience and understanding and where the court has no special knowledge about the matter or no reasons to doubt that the jury will appropriately assess its weight, the evidence is not ‘of a kind that may be unreliable’ and the section does not apply.[89]

18.38 The latter approach is consistent with the respective functions of the trial judge and jury in relation to findings of fact. In practical terms, this also accords with ‘the desirability of containing a summing up to an acceptable length; of ensuring its immediate relevance to the actual trial; [and] of avoiding unnecessary judicial input into the fact finding process’.[90]

Submissions and consultations

18.39 In IP 28, the ALRC and NSWLRC sought comment in relation to the drafting, content and operation of s 165.[91] In DP 69, the Commissions noted that this question attracted relatively little attention in submissions and consultations.[92]

18.40 One practitioner considers that s 165 generally works well.[93] The Law Council also endorses the flexible and non-technical approach of s 165 warnings.[94]

18.41 In contrast, the New South Wales Public Defenders Office (NSW PDO) submits that s 165 ‘has proved to be a blunt and ineffective instrument when compared to the common law rules relating to corroboration’.[95]

18.42 The NSW PDO supports the inclusion in s 165(1) of the following categories: evidence from witnesses of bad character, and evidence from a person affected by drugs and alcohol.[96]

18.43 One judicial officer submits that, where tendency and coincidence evidence is admissible, it may be desirable to amend s 165 to require or permit the judge to warn the jury about the possibility of concoction or collusion.[97]

18.44 The NSW PDO and the New South Wales Law Society both submit that s 165(2) should be amended to include the following additional directions:

(d) that it would be dangerous to act on the evidence of an unreliable witness which is not supported by other independent evidence; and

(e) the evidence of a number of witnesses all criminally concerned in the events giving rise to the proceedings do not provide independent support for each other.[98]

18.45 The Office of the Director of Public Prosecutions (NSW) (NSW DPP) submits that guidance as to the timing of a warning under s 165 is desirable:

Section 165 should be amended to indicate that, unless the court is satisfied that it is in the interests of justice to give the warning at some other time, the warning given by the trial judge pursuant to the section, must be given immediately before or immediately after the giving of the evidence that is the subject of the warning. [99]

18.46 The Law Council submits that it might be appropriate to develop uniform model directions (and particularly warnings required under s 165) for criminal cases in uniform Evidence Act jurisdictions. It notes that, should such directions be developed, care must be taken to ensure that they do not achieve a mandatory (and hence technical) status.[100]

18.47 The New South Wales Department of Health Child Protection and Violence Unit submits that the Acts should be amended to provide that the judge must not warn, or suggest to the jury in any way, that the law regards complainants in sexual assault cases as an unreliable class of witness.[101]

18.48 The Intellectual Disability Rights Service submits that witnesses with an intellectual disability are vulnerable to prejudicial assessments of their competence, reliability and credibility. It recommends the introduction of a provision to prevent a court from warning or informing a jury that evidence given by a witness with an intellectual disability is unreliable because of the witness’ disability.[102]

The Commissions’ view

18.49 In DP 69, the Commissions concluded on the basis of submissions and consultations that the s 165 warnings are operating satisfactorily in practice and that no case for legislative change in the present Inquiry had been made out.[103] The Commissions remain of this view.

18.50 The Commissions note that authorities have diverged as to the scope of the statutory test of unreliability. While it is acknowledged that the section is broadly drafted, submissions and consultations have not raised this as an issue and do not indicate that this is a matter of significant concern in practice. The Commissions therefore recommend no change in this respect.

18.51 A number of submissions suggest the inclusion of additional categories of evidence in s 165(1). However, the Commissions do not consider that a case for such amendment has been made out. Currently, s 165(1) provides that warnings may be given in respect of ‘evidence of a kind that may be unreliable’ generally, and hence may apply to the categories suggested. Given that the section is not limited, it is considered that insufficient need has been demonstrated for the express inclusion of the suggested categories.

18.52 It is also suggested in submissions that the uniform Evidence Acts should be amended to preclude the giving of generalised warnings in relation to sexual assault complainants and witnesses with an intellectual disability. The Commissions note in Chapter 2 that the uniform Evidence Acts are intended to be Acts of general application, and should generally not contain provisions relating to specific categories of witness or offence. It is acknowledged that in some instances it will be appropriate to include provisions which apply only to particular categories of witness, but that the approach taken will vary depending on the nature of the provision in question. While the Commissions have made a recommendation similar to those proposed in relation to children’s evidence,[104] it is considered that there are particular considerations in favour of the inclusion of the recommended provision. These are outlined later in this chapter. An important consideration weighing against the inclusion of provisions relating to sexual assault complainants and intellectually disabled witnesses at the present time is that there is not inter-jurisdictional uniformity in relation to these issues.[105] However, the Commissions have recommended that all Australian jurisdictions should work towards harmonisation of provisions relating to issues such as children’s evidence and offence-specific evidentiary provisions.[106] The inclusion of the proposed provisions in the uniform Evidence Acts may be considered desirable at some stage in the future.

18.53 The Commissions have recommended a targeted inquiry into the jury system, including judicial warnings. While the Commissions are of the view that no case for change to s 165 has been made out in the present Inquiry, it is considered that these warnings should be reviewed in light of a more comprehensive analysis of other common law and statutory directions. The submissions suggesting amendment of s 165(2) in order to reflect the common law corroboration warnings would be appropriately reviewed in that context.

18.54 Suggestions have been made that guidance should be provided as to when warnings should be given and that model uniform directions should be developed. It is considered that these are issues which require further consideration in light of empirical research regarding the effect of directions on juries, in particular the factors which either impede or enhance juror comprehension. Again, this is a matter appropriately dealt with in the recommended inquiry.[107]

[76] R v PLV (2001) 51 NSWLR 736.

[77] Evidence Act 1995 (NSW) ss 165A, 165B. This is discussed later in this chapter. See Rec 18–2.

[78] It has been held that a trial judge who refuses to give a warning requested pursuant to s 165 must usually state his or her reasons for doing so: R v Beattie (1996) 40 NSWLR 155; R v Taranto [1999] NSWCCA 396.

[79] R v Williams (1999) 104 A Crim R 260, [34]. Note that a common law warning may be required irrespective of request. See the discussion of Longman v The Queen (1989) 168 CLR 79 later in this chapter.

[80] R v Flood [1999] NSWCCA 198, [18].

[81] As discussed later in this chapter, the trial judge may also be obliged to give a common law warning in relation to evidence which does not fall within the scope of s 165(1).

[82] In R v Stewart (2001) 52 NSWLR 301, Spigelman CJ stated that ‘the acknowledgment in s 165(5), that there will be other circumstances in which a judge will be required to warn or inform the jury with respect to these matters, suggests that the word ‘kind’ must be read down in some way’: [16].

[83] See, eg, R v Fowler (2003) 151 A Crim R 166; R v Harbulot [2003] NSWCCA 141. For cases taking the broader approach, see, eg, R v V (1998) 100 A Crim R 488; R v Mayberry [2000] NSWCCA 531.

[84] R v Clark (2001) 123 A Crim R 506, [70]. See also R v Stewart (2001) 52 NSWLR 301, per Spigelman CJ.

[85] Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [1019].

[86] See, eg, R v V (1998) 100 A Crim R 488; R v Mayberry [2000] NSWCCA 531.

[87] R v Baartman (2001) 124 A Crim R 371, [62].

[88] See, eg, R v Clark (2001) 123 A Crim R 506, [71]; R v Stewart (2001) 52 NSWLR 301, per Spigelman CJ.

[89] R v Stewart (2001) 52 NSWLR 301, [98].

[90] R v BWT (2002) 54 NSWLR 241, [35].

[91] Australian Law Reform Commission, Review of the Evidence Act 1995, IP 28 (2004), Q 14–5.

[92] Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), [16.70].

[93] T Game, Consultation, Sydney, 25 February 2005.

[94] Law Council of Australia, Submission E 32, 4 March 2005.

[95] New South Wales Public Defenders Office, Submission E 50, 21 April 2005.

[96] Ibid.

[97] Confidential, Submission E 31, 22 February 2005.

[98] The Criminal Law Committee and the Litigation Law and Practice Committee of the Law Society of New South Wales, Submission E 103, 22 September 2005; New South Wales Public Defenders Office, Submission E 50, 21 April 2005.

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

[100] Law Council of Australia, Submission E 32, 4 March 2005.

[101] NSW Health Department Child Protection and Violence Prevention Unit, Submission E 23, 21 February 2005.

[102] Intellectual Disability Rights Service, Submission E 101, 23 September 2005.

[103] Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), [16.70]–[16.75].

[104] See Rec 18–2.

[105] In contrast, the recommended provision relating to children’s evidence is already provided for in the Evidence Act NSW (1995), and hence there is a practical prospect of achieving uniformity in this area.

[106] See Rec 2–2.

[107] See Rec 18–1.