Reform of s 60

DP 69 Proposal 7–2: addressing Lee v The Queen

7.101 In DP 69 the Commissions proposed that the uniform Evidence Acts be amended to confirm that s 60 operates to permit evidence admitted for a non-hearsay purpose to be used to prove the truth of the facts asserted in the representation, whether or not the evidence is first-hand or more remote hearsay.^[121] The Commissions also asked whether certain exceptions to s 60, discussed below, should be recommended.

Submissions and consultations relating to Proposal 7–2

7.102 Proposal 7–2 has received both unqualified^[122] and qualified^[123] support on the basis that the amendment supports the intention of the legislation. The Director of Public Prosecutions for the Australian Capital Territory says that s 60 is generally operating satisfactorily, but notes that that might be because defence counsel has not seen the opportunity to contest admissibility. It is suggested that the basis for limiting the purposes for which evidence may be used under s 136 is not ‘crystal clear’.^[124]

7.103 Some submissions opposing the proposal argue that s 60 should not apply to second-hand and more remote hearsay.^[125] Others argue that s 60 should be repealed because it works injustice, is arbitrary, and otherwise lacks justification.^[126] The foundation of this argument, and the proposed exceptions to s 60 identified in DP 69, are explored in greater detail below. However, before considering the proposed exceptions, the view of the Commissions on Proposal 7–2 is articulated.

Commissions’ view on Proposal 7–2

7.104 The Commissions affirm their view of the effects of Lee v The Queen expressed in DP 69. It was there explained that Lee v The Queen may be regarded as supporting a view of s 60 inconsistent with the intention or the scheme of the uniform Evidence Acts^[127] and is contrary to the original intention of the proposals in ALRC 38.^[128] In addition, the decision has created confusion and uncertainty about the operation of s 60. Uncertainty about the scope of s 60 creates major problems for the future application of the uniform Evidence Acts unless the consequences of uncertainty are addressed by amendment or in other suitable ways. The formulation of remedial measures is complicated by the difficulty of determining the precise ratio of Lee.

7.105 The Commissions’ view is that the uniform Evidence Acts should be amended to confirm that s 60 applies to relevant first-hand and more remote hearsay, subject only to the mandatory and discretionary exclusions in Part 3.11. In substance, the proposal is intended to put the law on the footing originally intended by the ALRC. To the extent Lee is inconsistent with this aim, the intention is to overrule the reasoning in Lee.

7.106 The proposed wording for the amendment implementing Recommendation 7–2 is found in Appendix 1.

Other reforms to s 60: Question 7–1

Submissions and consultations relating to Question 7–1

7.107 In DP 69, opinion was sought as to whether s 60 should be amended to provide that a previous representation of a party to any proceeding made to an expert to enable that expert to give evidence, or evidence of admissions that are not first-hand, or both, should be excluded from the ambit of s 60.^[129]

7.108 The Hon H D Sperling QC, in a detailed submission, proposed the following amendment to s 60 to give effect to the aspect of the question relating to expert evidence:

(2) Notwithstanding subsection (1), this section does not apply to evidence of a previous representation that is admitted because it is relevant to establish what facts have been assumed by the expert as a basis for the expert’s opinion.

(3) Notwithstanding subsection (1), this section does not apply to evidence of a previous representation which is admitted because it is relevant that the representation occurred or was published.^[130]

7.109 In his submission, Mr Sperling argues the following:

• section 60 permits the stated assumptions upon which an expert bases his or her opinion to be admitted as evidence of the truth of those assumptions—which is unsatisfactory;

• justifications for enacting and retaining s 60 are insufficient or unsound. In particular, there is no good reason for a medical history narrated to an expert, upon which the expert bases his or her opinion, to be admissible as evidence of the truth of the facts asserted simply because the history is admitted for the purpose of showing the basis of the expert opinion;

• sections 135–137 in Part 3.11 provide inadequate safeguards against the risks of admitting these kinds of evidence.^[131]

While not expressing support for the retention of s 60 or Proposal 7–2,^[132] the submission was based on the assumption that s 60 would be retained.^[133]

7.110 The Law Society of New South Wales submits that, if Proposal 7–2 is implemented, Question 7–1 should be answered in the affirmative to exclude from the ambit of s 60 both kinds of evidence raised in Question 7–1.^[134]

7.111 The Commonwealth Director of Public Prosecutions (CDPP) takes a slightly different position. The CDPP supports Proposal 7–2 ‘on balance’, but subject to a reservation similar to Mr Sperling’s: that it is undesirable and inappropriate that ‘a psychiatrist’s report containing hearsay accounts related to the psychiatrist by a patient would become evidence of the truth of the contents [under s 60], thus elevating a mere medical history to fact’.^[135]

7.112 The CDPP submits that an exception to s 60 is a better approach than reliance on s 136. Further, the CDPP maintains that parties often fail to call independent evidence to prove the contested facts relied upon by the expert.^[136] The NSW DPP supports amendment along the lines suggested by the CDPP.^[137]

The view of the NSWLRC on Question 7–1

7.113 The NSWLRC agrees with Mr Sperling that s 60 should be amended to exclude its operation in respect of previous representations admissible because they are relevant to establish facts assumed by an expert as a basis for the expert’s opinion. The following paragraph of text has been prepared by the NSWLRC to reflect this view.

7.114 As this chapter indicates, there is some support for Mr Sperling’s proposed exception. Sound policy reasons also support it.^[138] First, communications made to an expert for the purpose of providing the factual basis for the expert’s opinion have no inherent reliability as a general rule, the more so where the report is prepared for the purposes of litigation, where the communication will usually be made by a person who has a substantial interest in the facts being as specified and in the expert’s opinion being based on the facts as specified. Secondly, applications under s 136, which are costly in time and money and give rise to the potential for inconsistent decisions in similar facts, are not, in this context, a sufficient response to a problem that should not arise in the first place. That problem is particularly acute in large civil and commercial cases (for example, intellectual property and corporate takeover litigation) where expert reports, often running to many volumes, are carefully constructed for the purposes of litigation. In such cases, the court has no knowledge of how the report has been assembled and it is inherently unfair to the other party to the litigation that representations in such reports that are admissible because they are relevant to the basis of the expert’s opinion, should also be admissible as evidence of their truth.

View of the ALRC and VLRC on Question 7–1

7.115 The ALRC and VLRC do not agree with Mr Sperling’s interpretation of s 60, or with the NSWLRC’s view. Further, the ALRC and VLRC do not support the exclusion from s 60 of a previous representation of a party to any proceeding made to an expert to enable that expert to give evidence. The following represents the view of the ALRC and VLRC on this issue.

Does s 60 apply to assumptions or only to representations?

7.116 The issue raised by Mr Sperling of whether s 60 applies to assumptions has arisen in case law. For example, in Quick v Stoland,^[139] Branson J noted that parts of an expert’s report were admissible to establish the facts upon which the expert gave his opinion. After quoting s 60, Branson J said in obiter dicta:

It is not necessary in the context of this case to give detailed consideration to the circumstances in which, and the extent to which, evidence of the factual basis of an expert opinion will amount to evidence of the truth of that factual basis … It may be that a different result will follow depending upon the form in which the expert gives evidence of the factual basis of his or her opinion; that is, whether such evidence is given in the form of a representation or, alternatively, in the form of an identification of a hypothetical assumption.^[140]

7.117 Branson J stated that if s 60 operates to ‘give mere form significance in this way, the result cannot be regarded as entirely satisfactory’.^[141] Similar concerns are seen in R v Lawson^[142]and Harrington-Smith v State of Western Australia (No 2).^[143]

7.118 Is the distinction between a representation and an assumption a matter of ‘mere form’? The answer is ‘no’. The distinction between representations and assumptions is real and is reinforced practically by the fact that it would be perjury for an expert to state as a representation (from a person with knowledge of the facts) what was only an assumption put to the expert, in an attempt to gain an advantage from s 60.^[144]

7.119 The better view is that s 60 does not apply to assumptions. That accords with the language and intent of the section.

• First, before s 60 applies, evidence must be admitted for a non-hearsay purpose and must be relevant for a hearsay purpose. Evidence expressed in terms of an assumption of fact on which the expert has expressed an opinion is plainly relevant to establish the basis of the expert opinion. But because it is expressed as an assumption of fact and not as an assertion of fact, it does not purport to assert the existence of a fact, or to repeat another person’s assertion that a fact exists. Therefore, the evidence has no capacity to prove that fact is true. Accepting that analysis, the evidence would not be hearsay and s 60 could not apply.

• Secondly, s 60 only applies to evidence of representations. A representation is a statement or conduct ‘which affirms, denies or describes a matter of fact’.^[145] The Dictionary definition of ‘representation’, includes express, implied and inferred representations, as well as unintended and uncommunicated representations.^[146] However, ‘[a]n assumption does not affirm, deny or describe a matter of fact—it merely postulates it’.^[147] By merely stating the assumptions upon which their opinion is based, an expert witness does not make a representation. Therefore, s 60 could not apply.

7.120 Support for this analysis is found in Finkelstein J’s judgment in Quick v Stoland. His Honour considered the possibility that a history narrated to an expert could, because of s 60, be admitted as evidence of the facts asserted to the expert where evidence of those assertions is admitted to establish the basis of the expert opinion. Finkelstein J said that a way of overcoming this possibility was to require the expert to express an ‘opinion in answer to a hypothetical question’—that is, a question based on assumptions—‘leaving it to the party calling the expert to prove the facts upon which the opinion is based’.^[148] In other words, Finkelstein J held that s 60 only applies to evidence in the form of representations, not assumptions.

7.121 Similarly, in Roach v Page (No 11), Sperling J said of evidence of the factual basis of expert opinion:

Where such evidence is in the form of a bare statement of facts or where facts are stated as having been provided by some other person or persons, s 60 operates to make the account evidence of the truth of the facts so stated. That is not so if the expert says that certain facts are assumed for the purpose of providing the opinion.^[149]

7.122 There will be situations in which an expert expressing an opinion may need to make a judgment about the veracity of the facts supplied and to express an opinion based on such judgment. In other cases this might not be necessary and a party might seek to obtain the use of s 60 by presenting factual assumptions as representations of fact. Such an attempt can be revealed through cross-examination of the expert.

7.123 However, if there is an issue as to the correctness of any fact relied upon, the simplest course is to invoke s 136 to limit the use of the statement to the purpose of identifying the facts upon which the opinion is based. This is the technique that seems to be employed commonly.^[150]

Justifications for s 60

7.124 Next it is submitted by Mr Sperling that there is no good reason for making evidence of a narrated history evidence of the truth of the history and that the three main reasons the ALRC was said to have given for enacting s 60 are not full justifications for s 60. The three reasons are summarised as follows.

First, that it was too much to expect that the common law distinction [between using evidence of a representation as evidence that the representation was made and as evidence of the truth of the representation] was [being] or would be observed. Secondly, that there were common law exceptions to the hearsay rule ([for] accumulated knowledge [of experts], etc) which should be preserved and which would otherwise be lost. Thirdly, that the ameliorating provisions [in Part 3.11] would be adequate to deal with any untoward effect which [s 60] might otherwise have.^[151]

7.125 The focus of concern appears to be the first and third justifications. Critics of s 60 acknowledge the need to accommodate the common law exceptions.^[152] What is disputed is the justification concerning the difficulty of the distinction required by the common law between the uses to be made of the medical history, and the effectiveness of Part 3.11 to deal with any untoward effect of s 60.

7.126 The unreliability of medical histories is put forward as an example.^[153] While it is true that in some cases medical histories provided to an expert can be unreliable, in the vast majority of cases the history is not challenged or, if it is, the challenge is limited to few matters.

7.127 In addition, in the vast majority of cases where expert opinion evidence is led based on history narrated by a plaintiff to his or her doctor, the plaintiff will give direct evidence of the history and can be cross-examined. Forensic reality, reinforced by the rule in Jones v Dunkel,^[154] ensures that will occur. In the few cases where direct evidence is not given or the history is challenged but the evidence is otherwise admissible, the discretions and mandatory exclusions in Part 3.11 to exclude or limit the use of evidence are more than adequate to deal with any problems.

7.128 Turning to the common law distinction between permitted and forbidden uses of hearsay evidence, the distinction is very difficult, even for experienced lawyers. But the difficulty of the distinction is not the only concern that motivated the ALRC. There is also the concern that the distinction leads to the exclusion of probative evidence and the rationale for doing so is highly questionable.^[155]

7.129 It is true that reliance on s 136 to limit the use that can be made of evidence will involve the drawing of a similar distinction. However, the total package of provisions ensures that the occasions when that needs to be done are limited in number and confined to those cases where it is an unavoidable necessity.

Part 3.11—an adequate safeguard?

7.130 Under ss 135 and 136, evidence may be excluded or its use limited by reference, in particular, to the concept of ‘unfair prejudice’ to a party.^[156] ‘Unfair prejudice’ is a trigger for s 137 also, but s 137 requires, rather than merely permits, a court to exclude certain evidence where the section’s criteria are met.

7.131 In Roach v Page (No 11),^[157] Sperling J considered in detail the operation of ss 135 and 136. He found that an inability to test the truth of a previous representation is a legitimate consideration in the exercise of ss 135 and 136.^[158] He said that where both ss 60 and 77 apply, this consideration can have added weight. In that case:^[159]

Representations of fact become evidence of the truth of the representation, irrespective of whether they are first-hand or remote hearsay and irrespective of whether the source of the information is disclosed. Representations of expert opinion in the document are probative of whatever is the subject of the opinion expressed, irrespective of whether the author of the document is qualified to express the opinion and irrespective of whether the assumptions made for the purpose of expressing the opinion are specified. Such consequences cannot have been intended where the opposite party is disadvantaged by such consequences. Section 136 serves to avoid such unfairness.^[160]

7.132 His Honour made a number of rulings on the admissibility and use of evidence concerning the factual basis of opinion evidence led from several experts. While the initial ruling (number 11) was lengthy, it involved detailed consideration of the authorities on the operation of the above sections. This analysis did not have to be repeated, and the approach identified was then used to determine six other rulings. These were generally short, and the decisions turned on the ability of the party against whom the evidence was led to test it by cross-examination.^[161] Evidence was made subject to a s 136 limit on the use in those cases where the opposing party was denied the opportunity to cross-examine.

7.133 Quick v Stoland also contains useful judicial observations on the relationship between s 60 and Part 3.11. Branson J said:

In cases in which there is a genuine dispute as to the relevant facts, it might be expected that a court would ordinarily limit the operation of s 60 … by exercising the power vested in [the court] by s 136 of the [uniform Evidence Acts].^[162]

7.134 In the same case, Finkelstein J said s 136 would be a suitable tool for limiting what he called the ‘extraordinary effect’ of s 60, ‘[f]or example, where the hearsay involves “facts” that are in conflict or “facts” that are unreliable’.^[163] These statements must be read subject to the proposition that s 136 is not to be exercised routinely to reproduce the result that would have been achieved by the operation of the common law hearsay rules.^[164]

7.135 While some suggest that ss 135–137 are insufficiently powerful to deal with perceived injustices arising from s 60 making admissible evidence for a hearsay purpose which is admitted for a non-hearsay purpose,^[165] the ALRC and the VLRC take the view that ss 135–137 are more than adequate controls.

7.136 Focusing particularly on s 136, although the discretion enacted is not unfettered and must be exercised on principled grounds, it nevertheless allows considerable flexibility in the tailoring of suitable orders to suit the individual case. The ability of a court to tailor orders under s 136 (read with s 192) is of great significance. Further, as the Commissions indicated in DP 69, there is no limitation on s 136 that appears to prevent a court making such orders, in the exercise of its statutory discretion, to overcome the difficulties identified in Roach v Page (No 11), where s 136 was in fact applied that way. The issue is also discussed in Chapter 16.

7.137 The major difficulty posed by s 60 and the Part 3.11 provisions is that they provide a new approach and it appears that some have had difficulty making the necessary adjustment in thinking. Others have not and use the provisions with reasonable ease when the need arises.^[166]

Other considerations

7.138 The criticisms just considered raise broader questions about expert opinion evidence. It is clear that there is a perceived problem with expert evidence—for example, in large civil and commercial cases. It is equally clear that reform of s 60 will not address these concerns. Unsatisfactory preparation of reports undoubtedly plays a part, and is best addressed through rules of court, the involvement of lawyers in the preparation of reports, and practitioner education. The point is that the perceived problems with expert evidence are not with s 60 alone.

7.139 The interaction of the various provisions of the uniform Evidence Acts constrains the uses to which doubtful evidence as to the factual basis of expert opinion can be put. As already discussed, the requirement that such evidence be relevant within the terms of s 55 as evidence of the proof of the asserted fact is an important threshold test. The operation of s 55 in these cases is discussed in Chapter 9.

Conclusion

7.140 The ALRC and the VLRC are of the view that s 60 does not require the suggested amendment. Many submissions and consultations raise important points about the operation of the uniform Evidence Acts, and subject s 60 to valuable scrutiny. However, there were positive reasons for introducing s 60 which were relied on by the ALRC in its previous Evidence inquiry, and which remain valid.

7.141 Critics tend to address one or some, but not all of the policy issues. There is also a tendency to assume that if the exception in s 60 applies, the evidence will be admitted. Experience of the uniform Evidence Acts has demonstrated that this is not so and that the provisions in Part 3.11, particularly s 136, are appropriate and used to avoid unfairness. Section 60 is not animated by any single factor, as the discussion above is designed to show. Further, reading s 60 in isolation may lead to the placing of undue emphasis on the section at the expense of other provisions of the Acts.

7.142 To adopt some of the proposals for amending s 60 would entail rejection of the various policies that underlie s 60 as well as broader policies about the structure and operation of the Acts, including how different provisions of the Acts should interact. In addition they are likely to cause unnecessary complications and will apply in only limited circumstances. For example, consider an exception to prevent s 60 operating in relation to evidence given by an expert of a medical history on which the expert opinion evidence is based.

• It would provide the opportunity for technical objections to be taken to non-contentious evidence. That cannot be done under the uniform Evidence Acts as they currently stand: the objecting party has to show that the Part 3.11 provisions should or must be applied.

• In relation to contentious factual evidence, the debate would turn to the other hearsay exceptions—the various first-hand hearsay exceptions, the present s 72 (about statements of health etc) and business records.

• The scope and effect of a ‘history exception’ to s 60 would in fact be very limited and would not achieve the objectives of those seeking it. For example, in the case of a person suing for damages for personal injury, ss 63 and 64 will lift the hearsay rule in any event where the injured plaintiff:

(a) is not available to give evidence; or

(b) is called to give evidence; or

(c) the court can be persuaded that to call the plaintiff would cause undue expense or delay or would not be reasonably practicable.

7.143 Thus, the proposed exception to s 60 would only have effect where the plaintiff is not called and the absence of the plaintiff cannot be justified. That will not often arise. As noted above, there is considerable forensic pressure on a party leading expert testimony to call direct evidence about any disputed facts that are relied upon by the expert. The failure to call such evidence will, at least in civil proceedings, give rise to damning and powerful adverse comment. If the facts are challenged and direct evidence of them is not called, the party seeking to rely on the opinion runs the risk that the probative value of the evidence of the opinion will be held to be so slight that it will be excluded as irrelevant.^[167] In such a situation, admissibility can also be easily controlled by ss 135–137.

Second-hand hearsay evidence of admissions

7.144 Chapter 10 discusses amendment of the uniform Evidence Acts to provide for the exclusion in criminal proceedings of second-hand and more remote hearsay evidence of an admission. The Commissions agree that the special nature of the evidence, the peculiar nature and risks of criminal proceedings and the need to safeguard the defendant’s right to a fair trial make it important that remote hearsay not be admitted as evidence against the accused.