Objectionable, but not objected to? A note on the admissibility of evidence
The law of evidence provides that, in certain circumstances, evidence is ‘not admissible’ in proving a particular fact. For example, the ‘hearsay rule’ in the Evidence Act 2008 (Vic) s 59(1) states: ‘Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation’. Elsewhere, s 76 (the ‘opinion rule’) states: ‘Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed’.
What does it mean for evidence to be ‘not admissible’?
There is a line of authority which holds that the legislative expression ‘is not admissible’, so far as it concerns the use of evidence in proving a fact, simply means that such evidence is not admissible over objection. In other words, if evidence is otherwise ‘not admissible’ but is not objected to, it legitimately can be admitted. In Seltsam Pty Ltd v McGuiness,[1] the New South Wales Court of Appeal held:
In the ordinary course, the words ‘not admissible’ in the [NSW] Evidence Act, including in the opinion rule … means ‘not admissible over objection’, in accordance with the practice of the courts of which the Parliament was aware when it passed the Evidence Act.[2]
The Court of Appeal cited, as authority for that proposition, the decision in R v Reid.[3] There, Spigelman CJ held:
The Parliament was well aware, particularly in the context of legislation cognate with the general amendments to the scheme of evidence contained in the [NSW Evidence Act], that the usual course of proceedings in trials under the adversary system requires objection to be taken to evidence. The words ‘is not admissible’ should be construed as meaning ‘is not admissible over objection’.[4]
This line of authority has been approved by the Full Court of the Federal Court.[5]
In Victoria, the Court of Appeal has expressed reservation about the correctness of the approach taken in those other jurisdictions but has chosen to leave a concluded view to another day.[6] Elsewhere, Croft J in Eastbound Estate Pty Ltd v DC Consolidated Investments Pty Ltd acknowledged the Court of Appeal’s ‘doubt’ about the matter but also did not rule one way or another.[7]
Recently, in Re Estate of TCW (a pseudonym),[8] Moore J appears to have taken a more decisive view. Acknowledging the Court of Appeal’s view, but also noting the approach taken in NSW and federal appellate courts, his Honour stated:
[G]iven the High Court’s direction to trial judges not to depart from decisions of intermediate appellate courts in other jurisdictions on the interpretation of Commonwealth legislation or uniform national legislation unless convinced that the interpretation is plainly wrong, it is incumbent upon me to follow [those non-Victorian] appellate court decisions as I do not consider them to be plainly wrong.[9]
It follows that, until the Court of Appeal determines otherwise or unless another judge of the Trial Division finds the decision of Moore J to have been wrong in law, the ‘not inadmissible over objection’ approach appears to have been adopted as law in Victoria.
As a practical matter, although the admission of evidence in the absence of objection would be more likely to occur where a matter is heard ex parte or otherwise is unopposed, it also could arise where, whether as a matter of forensic judgment or otherwise, objection is not taken to a particular piece of evidence. If that occurs, and the party not taking objection later wishes to make a point about that evidence, there would remain the issue of the weight a court ought give to such evidence; admission of evidence is one thing, but how a decision-maker is to use that evidence in the decision-making process is another.
[1]: (2000) 49 NSWLR 262.
[2]: Ibid 287 [149].
[3]: [1999] NSWCCA 258.
[4]: Ibid [5].
[5]: Mayfair Wealth Partners Pty Ltd v Australian Securities and Investments Commission [2022] FCAFC 170, [30]–[31].
[6]: Velkoski v The Queen (2014) 45 VR 680, 727 [200]. The Court in a later decision suggested that the notion of evidence being ‘not admissible over objection’ ought be qualified, but did not express a concluded view: see Jobandeep Gill v The Queen [2016] VSCA 261, [40].
[7]: [2024] VSC 40, [79].
[8]: [2024] VSC 569.
[9]: Ibid [17] (citation omitted).