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Question

**Part 3.10—Privileges** **Division 1C – Journalist privilege (ss 126J–126L)**

Answer 1

* **s 126K:** * must be a promise [**Ashby**]. * not necessary that the answer to a question or a document would reveal the identity of the informant – it is sufficient that it would "enable that identity to be ascertained". * not availabnle if is already known or able to be ascertained [**Ashby**]. * more probative, the more desirable that evidence be given. * unauthenticated leak or gossip may not be sufficient for an order to be made. * court may limit publication. * onus is on the journalist or journalist employer to satisfy the court. * if considering an application under s 126K(2) the burden is on the applicant.

Answer 2

* **s 33 CPA**. * **s 128:** * only applies in court and s 131A does not apply, but sees 128A.Does not extend beyond testimonial evidence [i.e. fingerprints etc] [**Sorby**]. Evidence can be oral or by affidavit [**In the Marriage of Atkinson**] * s 87 CPA * FCR O 33 r 11. * may be given in respect of all the evidence on a particular matter or topic. * limited to past commission of offences and does not extend to the provision of any form of ad hoc indemnity to a witness for the commission of an offence constituted by, or arising out of, the evidence that he or she gives [**Peters**]. * s 187. An officer of a body corporate is called as a witness is entitled to claim a personal privilege – but not ton behalf of the corporation [**Environment Protection Authority v Caltex**]. * onus is on the party arguing "reasonable grounds". * no requirement to "identify the evidence" which may tend to incriminate [**Field**]. * provision has been applied retrospectively [**Lewis**]. * s 132 obligation, may mean that evidnece had been obtained improperly. * s 128(4)(b): the provision places the onus on the party seeking to have the witness compelled to give the evidence to satisfy the court that the interests of justice "require" [**Gedeon**]. In criminal proceedings unlikely that the interest of justice will require to give evidence [**X7**]. * see r 7 ER as to form. * not open to a court to draw adverse inferences from the fact that privilege is claimed [**Versace**]. * s 128(4) the "burden of proof" is on the party or person arguing that "the interests of justice" require the witness to give evidence - balance of probabilities. * **s 128A:** * s 128A(6): in determining whether the court should make an order requiring the whole or any part of the privilege affidavit to be filed and served on the parties, it would also be appropriate to consider what other orders the court might make limiting further disclosure of the information contained in the affidavit [see **Shi** for considerations. * "burden of proof" is on the party or person arguing that there are "reasonable grounds" for the claim under s 128A(4). Under s 128A(6), the "burden of proof" is on the party or person arguing that a disclosure order should be made [**Shi**] - on the balance of probabilities.

Answer 3

* **s 129:** only applies where there has been a "decision" by a judge or arbitrator [**Ryan**]. * **s 130:** * adducing the evidence need not "disclose" the existence or identity of a confidential source – it is sufficient that it "would … enable a person to ascertain" either of those matters. * balancing exercise [**P Dawson Nominees**]. * encompasses the creation of a risk that falls short of having a 50 per cent chance of eventuating" [**Kamasaee**]. * must have regard to importance of the document in the proceedings. * if needed to support a defence in a criminal trial that will be for disclosure [**Peters**]. * burden on party arguing public interest. That party must establish both that the information or document "relates to matters of state" and that the balancing test favours non-adduction/production. * should be supported by an affidavit and may be confidential. * s 131A applies. * **s 131:** * includes both oral and written communications [**Seven Network**]. * does not extend to document recording the terms of settlement [**State Rail Authority (NSW)**]. * there must be a dispute of a kind that relief in a proceeding may, in due course, be given [**Brown**]. * only to genuine negotiations, bona fide attempts to reach a settlement of a dispute in existence at the time [**Wingecarribee Shire Council**]. * must be character of an attempt to negotiate a settlement [**Collins Thomson**]. * covers documents such as working papers referable to the preparation of a settlement offer or a note recording the details of a settlement offer [**Seven Network**]. * applies to documents used in course of mediation [**Lewis**]. * **s 131A:** * must be the same person who objects. * does not apply where some other person objects to the information being given or the document provided [**Public Transport Ticketing Corp**]. * does not apply to s 123 or 128. * **s 132:** * failure to do so may have the consequence that evidence given by the witness should be excluded pursuant to s 138 [**LGM**]. * **s 133**: * rejected a submission that the power conferred under s 133 cannot be used as a substitute for admissible evidence to support the various elements necessary to establish privilege [**Bailey**], however, see **Tabcorp**. * court "should not be hesitant to exercise" its power to examine documents [**Esso**].

Answer 4

* **s 135:** * ****not unfairly prejudicial because damage the case of the party or support case of opponent [**Ainsworth**]. * real risk that the evidence will be _misused by the jury_ in some unfair way" [**BD** consistent with ALRC]. * procedural considerations such as innability to XX. * steps can be taken to limit prejudice [**Calleja**]. * incorrectly assessing the weight of the evidence [**Sing Bal**] and ambiguous requiring speculation [**GAR**]. * "waste of time" if added complexity without assisting resolution of the facts in issue and may be that already admitted [**Drumbo**]. * in criminal proceedings as part of this consideration must have regard to in criminal proceedings have to have regard to onus and standard of proof. * **s 136:** * may be reduced by some other action such as by directions to the jury or reasoning process to be appplied in respect of evidence. * s 136 might properly be applied to prevent use of the opinion "to prove the existence of a fact about the existence of which the opinion was expressed". * judge can direct that certain evidence can be used to "collaborate" other evidence [**Galvin**]. * **s 137:** * no requirement that value be "substantially" outweighed compared to s 135. * balancing process. * no residual discretion - the evidence must be rejected [**GK**]. * assessment of PV must be made in conjunction with all the other evidence to be adduced in the proceeding [**IMM**] [i.e. context and not isolation], as maybe already admitted from another source = PV low. * must "substantially" outweigh - another way of saying that the onus is on the party seeking exclusion and that exclusion will only be justified in a clear case or “there must be compelling circumstances for the exclusion” [**La Trobe Capital**]. * exercise in s 135 is weighted against exclusion and in favour of admission compared to s 137. In criminal proceedings would rely on s 137, because of lower threshold and does not leave the court with a residual discretion [**Blick**]. * **in assessing PV**: * prior to **IMM** point of difference between **Shamouil** and **Dupas** is that the VSCA held that a trial judge could take into account the reliability of the evidence in assessing its probative value. * must take into account the use that the party adducing the evidence seeks to make of the evidence. Must be in relation to that use notwithstanding of another potential use of it. Risk that the evidence might be used (albeit impermissibly) in that second way may bear on the assessment of danger of unfair prejudice. * if for more than one purpose, do not look at each purpose in isolation [**Davies**]. * **example** of a situation where the power may be utilised is where the prosecution tenders gruesome photographs of the deceased in a murder trial, where a pathologist has already described the injuries and there is little forensic assistance to be derived from the photographs. Thus, may have to adjourn or edit or direct the jury. * enquiry for the purposes of _s 55_ is _whether the evidence is capable of the effect_ described at all. but enquiry for the purposes of determining PV o is as to _the extent of that possible effect_ [**IMM**]. Neither s 55 or s 56 requires that evidence be probative to a particular degree for it to be admissible. * must proceed on the assumption that the evidence "is accepted" (and thus is to be regarded as both credible and reliable) [**IMM**]. The credibility or reliability of evidence cannot be considered when assessing probative value, but evidence taken at its highest can still be “weak” and “unconvincing”. Does not require that the matter thereby "evidenced" must also be assumed to be accepted, as “circumstances surrounding the evidence may indicate that its highest level is not very high at all.” evidence which is “inherently incredible or fanciful or preposterous” would not appear to meet the threshold requirement of relevance. * in **DSJ** he court may have regard to any alternative explanation to that advanced by the prosecution if it arises on the evidence. Also, see **XY** which is consistent with DSJ and inconsistent with **Sood.** **Burton** held that **Sood** was still good law [i.e. court assessing the probative value of evidence for the purposes of this provision is _required to assume that the inference(s) sought to be drawn by the prosecution will be drawn, without any availability of any competing inference_]. **IMM** at [45] suggests that determination of the probative value of circumstantial evidence does not require competing inferences to be ignored by the judge. In a **Restricted Judgement Burton** reaffirmed. - "it was no part of the trial judge's function in assessing probative value under s 137 to have regard to competing explanations for the respondent's conduct, other than that upon which the Crown relied". In **Bauer** the only sense in which competing inferences are of significance in the assessment of the probative value of evidence is in the determination of whether the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. * contamination, concoction or collusion goes only to the credibility and reliability of evidence and, therefore, is an assessment which must be left to the jury [**Bauer**], unless not rationally open for jury to accept the evidnece. * **"danger of unfair prejuice":** * "prejudicial effect" in s 101, "unfairly prejudicial" in s 135 and "unfair prejudice" in s 137, each conveys essentially the same idea of harm to the interests of the accused by reason of a risk that the jury will use the evidence improperly in some unfair way [**Bauer**] * **considering unfair prejudice:** * ****consider as a whole and not in isolation [**Aytugrul**]. * procedural considerations such as inability to XX [**Bauer**] * danger of giving too much weight [**Dickman** and **Ngo**]. * scientific evidence because of a danger that the evidence will be misleading or confusing **Aytugrul**] and may not be cured by directions [**Wise**]. * **s 138:** * balance of the competing public interests. * in a criminal proceeding in which the prosecution seeks to adduce evidence that has been improperly or illegally obtained the more focussed public interests identified in **Bunning v Cross** remain apt [**Kadir**] [i.e. convicting wrongdoers vs curial approval, or even encouragement, to the unlawful conduct of those whose task it is to enforce the law]. * balancing test must be applied in respect of each item of improperly obtained evidence. * conduct need not necessarily be wilful or committed in bad faith or as an abuse of power". It need not be "deliberate or reckless" [**Carr**]. * for the courts themselves to determine whether methods used to obtain evidence are "proper" or "improper" [**Ridgeway**]. Parker refered to definition of Oxford English Dictionary. * **approach** as per **Robison:** * ****identify minimum standard viewed by society from those with power [i.e. minimu standsrds of acceptable police conduct]. * contravention must not be "minor", but "quite inconsistent with" or "clearly inconsistent with". * standard for private individuals is less clear [**Kadir**]. * failure to comply with s 132 obligation will suffice [**LGM**]. * evidence may possess high PV in a case in which other equally probative evidence is available to the prosecution [**Kadir**], however, if that evidence is exluded then PV increases. * in criminal, the more serious the offence, the more likely that the public interest requires admission [**Dalley**]. * chain of causation must be shown between the impropriety or contravention and the obtaining of the evidence [**Cornwell**] it is a "but for" test of causation [**Restricted Judgment**] * s 138(3) are overlapping, and that it is not wrong to look at them together and should not be considered in isolation [**Kadir**]. * for "desirability of admitting evidence" [see **Kadir**]. * the greater the PV the greater the public interest in its admission [**Camilleri**]. * Prejudice" to a defendant arising simply from the fact evidence tends to prove guilt would not in any way support exclusion of the evidence [**Camilleri**] * "deliberate" impropriety or requires knowledge or awareness that the conduct involved is improper or unlawful [**Marijancevic**]. * where an officer is likely to be dealt with in another forum for his or her misconduct, the need to exclude evidence as a deterrent is reduced" [**Kadir**]. * in a case where action is taken urgently in order to preserve evidence from loss or destruction, it is possible that factor (h) would weigh in favour of admission, notwithstanding that the action involved deliberate impropriety or illegality [**Kadir**]. * onus is on the party seeking exclusion to demonstrate that it was unlawfully obtained If that onus is met, it is for the party seeking admission of the evidence to satisfy the court that the desirability of admitting such evidence outweighs the undesirability of admitting it, given the way in which it was obtained [**Parker**]. * see **Em** with respect to admissions and compare **Helmhout**. * **s 139:** * specified belief and not a suspicion of commission of offence [**Pearce**]. * must be "questioning" and both s 139(1)(b) and s 139(2)(a) require that the questioning have been "conducted by an investigating official". * questioning need not be "in connection with the investigation of the commission or possible commission of an offence". * 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 [**Naa**]. * critical issue is whether the caution was communicated to the arrested person in a way which ensured that he or she understood the matters contained in the caution [Deng]. If that is not established, there is likely to be non-compliance with s 139(3), however, not if the caution could not reasonably have been expected to be perceived that the suspect did not understand the caution.

Answer 5

* **s 141:** * ****more likely than not that the fact exists [**Henderson**]. * 2 interpretations of **Briginshaw**: * _fixed standard view_, adopted in ***Neat Holdings Pty Ltd***. The standard is the same – 50+% probability, but the graver the allegation the more evidence is necessary. * _variable standard view_ - balance of probailities increases with more serious allegations as D has more at stake. * ***Jones v Dunkel*** and ***Browne v Dunn*** is relevant in that a failure by the party with the burden of proof to comply with that principle may be very material to the question whether the standard of proof is satisfied. * **s 141:** * a reasonable doubt is not just any doubt [**Dookheea**]. * **s 142:** * may also take into account any relevant evidence.

Answer 6

* allows a judge to “notice of” or just know something, without the requirement of proof. * **s 144:** * not open to a judge to use s 144 of the Evidence Act to 'inform' him or herself of matters in respect of which reasonable minds might differ" [**McGregor**]. * if not possible to take into account without unfairly prejudicing one of the parties, should not take into account [**Prentice**].

Answer 7

* **s 146:** * ****"reasonably open". * may be possible to rely on s 144 for this purpose [i.e. photocopier or computer generated documents]. * nothing to do with the accuracy of the photocopied data. - could be utilised to show when FB posts were written [**Stevenson**]. * **s 147:** * only burden on the opposing party is to point to "evidence sufficient to raise doubt about the presumption.

Answer 8

* **s 155:** * does not affect the question of admissibility – if the public record is inadmissible, this provision will not make it admissible. * party adducing the evidence does not have to satisfy the court of a number of specified facts. It will be enough that they "might reasonably be supposed" to have existed. * burden on the opposing party is to point to "evidence sufficient to raise doubt about the presumption". * **s 156:** * party adducing the evidence does not have to satisfy the court of a number of specified facts. It will be enough that they "might reasonably be supposed" to have existed. * **s 157:** * other process" of a court may include a transcript of oral evidence - ss 91-93. * does apply to reasons given for judgment [**Markisic**].

Answer 9

* **s 163:** * ****ambiguity about the provision is whether it is only presumed that the postal article was delivered to the specified address or whether it is also presumed that it was received at that address by the person to whom it was addressed. Word "received" meant "delivered" [**Meredith**]. * burden on the opposing party is to point to "evidence sufficient to raise doubt about the presumption". * evidence of denial of receipt may be insufficient, in the particular circumstances, to raise the required doubt [**Complete Investing Services**].

Answer 10

* **s 164:** does not have to be coloborated with the exeption of purjery. * **s 165:** imposes warning requirements in respect of evidence that may be unreliable. * does not prohibit a judge from directing a jury that it may only use evidence as "corroboration" or "confirmation" of the evidence of a witness rather than as direct evidence of guilt [**Galvin**], but will rarely be given and perhaps in the form of "support" ratehr than "coloboration" [**Kanaan**]. * trial judge may refer to evidence that is contended by a party to "corroborate" other evidence [**Choi**]. See **Gentry** as an example, but see **Higgins**.

Answer 11

* common law obligations to give warnings still exist except where they have been abrogated by ss 165, 165A, 165B. Must be established that the evidence is "of a kind that may be unreliable" [**Clark**]. * s 133(3) of CPA 1986, which deals with single judges. * s 294AA CPA * 289J, 289V, 293A, 294, 294B, 294AA, 306X - see the preconditions in these sections. * **s 165:** * ****no obligation on a judge under this provision to give a warning if it is not requested by a party [see **Evans**]. * common practice to give warning when evidnece is admitted and when summing up [**DBG**]. * judge should state good reasons for not complying with ss (2) [**Beattie**]. * delay in complaint may require a warning, commonly referred to as "a **Longman warning**", regarding its significance in causing forensic disadvantage to the defence, such as limiting the opportunity of the defence to obtain relevant evidence, test the prosecution case or put the defence case. * warning may be appropriate in: * s_ingle prosecution witness_ [**Tully**]. * _limited the opportunity_ for the defence to get evidence, test the prosecution or put its case: (a) substantial or significant delay in complaint [**Longman**] or (b) little detail in complaint [**DGB**]. * _prosecution relies on conduct_ of the defendant as demonstrating consciousness of guilt [**Edwards**]. * _disputed police evidence_ of an admission [**McKinney**]. * evidence n_ot made available for defence testing_ [**Slattery**]. * in order to _avoid a perceptible risk of a miscarriage of justice_, which arises when there is a f_eature of the evidence which may adversely affect its reliability_ and which may _not be evident to a lay jury_. * where there is a feature of that kind the fair trial of the accused requires the judge to draw it to the jury's attention, explain how it may affect the reliability of the evidence and warn the jury of the need for caution in deciding whether to accept it and the weight to be given to it. * **s 165A:** * ****party must satisfy the judge on balance of probabilities that there are circumstances particular to the child that do affect the reliability of the child’s evidence, rather than may have that result. * cannot focus on the mere fact that the witness is a child, or derive from a feature about the witness which is an inherent feature of children more generally [**AL**]. * **s 165B:** * necessary for the applicant to identify a significant forensic disadvantage suffered by the defendant because of the consequences of delay, the nature of that disadvantage, and the terms of the direction requested. * does not abrogate the common law obligation of a trial judge to give any direction necessary in the circumstances to avoid "a perceptible risk of [a] miscarriage of justice" [**TO**]. * judge should, in appropriate circumstances, ask the defendant (or the defendant’s lawyer) whether a warning is requested. It involves a subjective assessment and the views of counsel will be particularly important, and often critical [**Parry**]. * what the 'kind' of evidence was, why it was unreasonable, and what the terms of the warning requested were" [**Evans**]. * particular risks of prejudice must be identifiable. The jury must be made to understand the reason why the accused’s capacity effectively to defend himself has been compromised, and the effect that may have on the burden and standard of proof [**Pate**]. * assist the jury as to how to take the disadvantage into account [**Johnson**]. * exclusively concerned with the forensic disadvantage to the defendant and not diluted by any reference to similar disadvantages which may have also afflicted the prosecution [**Taylor**]. * see common law for reasons other than delay.

Answer 12

* **s 167:** * request must also be "reasonable" in that "whether there is a genuine dispute about a representation contained in the particular document or record" [**Trimcoll Pty Ltd**]. * must relate to an inssue in the provceedings [**Trimcoll Pty Ltd**]. * necessary to identify the representations, express or implied, which might be relevant for the purposes of the proceedings" [**Trimcoll Pty Ltd**]. * should be given a broad scope [i.e. credability or weight] etc [**Trimcoll Pty Ltd**]. * **s 168:** * "that there is good reason to do so" adds little to s 192, although it does make it clear that the onus of persuasion rests on the party seeking leave. * **s 169:** * 3 requirements: * request under s 167. * failure to refusal without reasonable cause. * application has been made. * applicant has onus to show that request under s 167 was a reasonable one [**Lin**]. * onus is reversed on the party to show that it was reasonable not to comply. * discretionary power.

Answer 13

* **s 187:** * officer speaks in his or her own right rather than as a mouthpiece of the corporation, and is therefore entitled to claim a personal privilege–but not to claim the privilege on behalf of the corporation or on the basis that an answer would tend to incriminate the corporation [**Caltex Refining Co**]. * employees evidence cannot be an admission on behalf of corporation [**Helicopter Resources Pty Ltd**] * **s 189:** * ****rules of admissibility in Ch 3 of the Act apply to voir dire proceedings. - a voir dire pursuant to this provision is not an "interlocutory proceeding" for the purposes of the hearsay exception in s 75 [**TIM Bar**]. * where the evidence involved is (or is alleged to be) an admission or improperly or illegally obtained evidence – the jury must not be present. * in all other cases – the jury is not to be present unless the court so orders. * in trials without a jury, or cases where the jury has been present during a voir dire, the voir dire testimony may be admitted in the trial proper – if relevant to a fact in issue and not subject to any exclusionary rule [**Brown**], but may be excluded under s 135. * effect of s 189(3) is that, in a voir dire in relation to an admission in a criminal proceeding, the defendant may not be cross-examined as to the truth of the admission, unless the issue of its truth has been raised by the defendant. Has no bearing on the question of whether the admission was in fact made (that is, the truth of the evidence as to the making of the admission). Rather, it relates to the question of the truth of the admission, if made. One of the issues may be whether "the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected": s 85(2). The defendant may testify regarding those circumstances, even if he or she also denies actually making an admission. * **s 190:** * ****similar provision to s 190(3) appears in s 70(1)(a) of the CPA 2005. * **s 191:** * that merely supplements or elaborates upon an agreement does not "contradict or qualify an agreed fact" [**FV**]. * effect of s 191 is to admit the agreed facts as evidence. It still remains for the court to determine whether the facts are to be accepted as true and to determine what weight to attribute to that evidence [**PGP Developments**]. * court not obliged to accept the parties’ submissions even if agreed between them and contained in the s 191 statement [**Prime Nature Prize Pty Ltd**]. * **s 192:** * whenever a court is considering giving leave, permission or a direction under the Act, "in all cases the court must take into account the matters prescribed by s 192(2)", as well as "matters which may be relevant in a particular case" [**Stanoevski**, s 192(2) matters are not exhaustive and the weight afforded to the evidence is of significant relevance]. * discretion to grant leave will overlap with the court's general discretion to exclude evidence in s 135 and, in criminal cases, s 137. * - making of an "order" under s 26 requires consideration of the terms of s 192 [**Rich**]. * should be assumed that a judge hearing a case will continually be having regard during the course of the hearing … to the matters referred to in s 192(2)" [**Reardon**]. * unless the contrary may be inferred from the circumstances or from what a judge does say, it should be assumed that a judge hearing a case will continually be having regard during the course of the hearing … to the matters referred to in s 192(2)" [**Reardon**]. * **s 194:** * ****onus is squarely on the [party seeking issue of a warrant under s 194(1)(b)] to satisfy [the court] that the witness has no just cause or reasonable excuse" [**Harris**].

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