Evidence issues

27.4 Evidence issues of particular concern in the context of sexual assault proceedings include the law and procedure relating to: evidence of sexual reputation and experience; the disclosure of confidential counselling communications; expert opinion evidence and children; tendency and coincidence evidence; relationship evidence; and evidence of recent and delayed complaint.

27.5 While these issues may appear disparate, there are some common themes—notably those relating to consent and credibility. Evidence issues often arise where the defence is seeking to show that sexual activity was consensual and, in doing so, to undermine the credibility of the complainant. This can sometimes result in unjustifiable trauma to complainants. In other contexts, the policy challenge is posed by evidence of prior misconduct by the defendant, which is highly prejudicial and may carry a risk of wrongful conviction. At the same time, it can be highly important and probative evidence.[1]

27.6 The rules of evidence vary among jurisdictions depending, in particular, on whether the uniform Evidence Acts apply. In this Report, the term ‘uniform Evidence Acts’ is used to refer to legislation based on the Model Uniform Evidence Bill, which was considered and endorsed by the Standing Committee of Attorneys-General (SCAG) in July 2007, or on the Evidence Act 1995 (Cth) and Evidence Act 1995 (NSW). The Model Uniform Evidence Bill is based on these latter Acts, with amendments recommended in Uniform Evidence Law (ALRC Report 102).[2]

27.7 The Australian Government has an ongoing commitment to the harmonisation of evidence law across Australian jurisdictions through the work of the SCAG National Working Group on Evidence. Recommendations for reform of the uniform Evidence Acts made in this Report need to be considered by the Australian and state and territory governments through the mechanism of SCAG.

27.8 The uniform Evidence Acts jurisdictions are the Commonwealth, NSW, Victoria, Tasmania, the ACT (which applies the federal legislation) and Norfolk Island.[3] There are minor differences in the uniform Evidence Acts applying in these jurisdictions.[4] The uniform Evidence Acts work in conjunction with evidentiary provisions contained in a range of other federal, state and territory legislation.

27.9 As discussed in ALRC Report 102, the uniform Evidence Acts in their entirety are not a code of the law of evidence. The enactment of the uniform legislation resulted in substantial changes to the common law in some areas. In other areas the common law remains an important reference assisting application of the uniform Evidence Acts. Stated simply, the uniform Evidence Acts govern admissibility issues, but reference to the common law can facilitate an understanding of underlying concepts and help to identify the changes brought about by the Acts.[5]

27.10 In other jurisdictions, referred to for convenience as ‘common law evidence jurisdictions’,[6] the common law has also been modified by statute in significant and varying ways, including in relation to the admissibility of evidence in sexual offence proceedings.

[1] See Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Uniform Evidence Law, Report 102, NSWLRC Report 112, VLRC FR (2005), [11.15].

[2] Ibid, [11.15].

[3] The corresponding legislation comprises: Evidence Act 1995 (Cth); Evidence Act 1995 (NSW); Evidence Act 2008 (Vic); Evidence Act 2001 (Tas); Evidence Act 2004 (NI).

[4] For example, the Tasmanian Act has a number of sections not found in the Commonwealth or NSW legislation, such as those dealing with procedures for proving certain matters, certain privileges, certain matters concerning witnesses and rape shield provisions.

[5] Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Uniform Evidence Law, Report 102, NSWLRC Report 112, VLRC FR (2005), [2.4]–[2.10].

[6] In 2006, the Northern Territory Law Reform Committee recommended that the uniform Evidence Act be adopted in the Northern Territory: Northern Territory Law Reform Committee, Report on the Uniform Evidence Act (2006).