Matters to which the court may have regard

12.31 Both s 103 and s 108A of the uniform Evidence Acts contain subsections[34] which list, by way of example, the following matters as relevant to the issue of substantial probative value:

  • whether the evidence tends to prove that the person in question knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth; and

  • the period that has elapsed since the events to which the evidence in question relates or, in the case of a representation, the period between the events and the representation.

12.32 Odgers notes that there are many more examples of evidence that may be of substantial probative value. Cross-examination may be permitted regarding such matters as bias, opportunities of observation, powers of perception and memory, special circumstances affecting competency and prior statements inconsistent with testimony.[35] In this context, it was asked in IP 28 whether further examples should be listed in the legislation.[36] In DP 69 the Commissions expressed the view that there was no evidence of significant problems with the limited examples and no clear benefit in adding further provisions.[37]

Submissions and consultations

12.33 No further submissions have been received on this issue.

The Commissions’ view

12.34 The Commissions maintain that there is no evidence that the lack of other examples in ss 103(2) and 108A(2) is causing any significant problems.[38] Adding further examples carries the danger that attention and debate will tend to focus on the examples rather than the general rule. The Commissions do not recommend that any further examples be added to ss 103(2) or 108A(2).

[34] Uniform Evidence Acts ss 103(2) and 108A(2).

[35] S Odgers, Uniform Evidence Law (6th ed, 2004), [1.3 7760].

[36] Australian Law Reform Commission, Review of the Evidence Act 1995, IP 28 (2004), [9.21].

[37] 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) [11.33].

[38] For example, see R v Lumsden [2003] NSWCCA 83.