16.1 Part 3.11 of the uniform Evidence Acts contains a list of provisions which operate to give the court certain discretionary and mandatory powers to exclude or limit the use of otherwise admissible evidence on policy grounds.[1] These provisions derive in large part from the common law discretions to exclude evidence; however, their application differs in accordance with the policy changes effected by the uniform Evidence Acts.[2]

16.2 The uniform Evidence Acts adopt the same basic structure as the common law for determining the admissibility of evidence: the test of relevance is the threshold consideration; the exclusionary rules and their exceptions are then applied; and finally, the residual ‘discretions’[3] to exclude on policy grounds are applied. However, within this basic structure the uniform Evidence Acts have effected significant changes.

16.3 In the Interim Report for the previous Evidence inquiry (ALRC 26), the ALRC criticised the common law process for determining admissibility on the following bases:

The courts in their differing definitions of what is relevant evidence have failed to articulate the factors that must be considered and balanced. The rule that relevant evidence is admissible and irrelevant evidence inadmissible is the major rule controlling what evidence is received. To leave the decision to ‘gut’ reaction is not good enough. All rules of exclusion are open to criticism.[4]

16.4 The Report went on to outline how each of the common law exclusionary rules applying to particular types of evidence was ‘inflexible and out of date’, unnecessarily excluding evidence of considerable probative value and failing to provide appropriate protections where needed.[5]

16.5 In order to balance the various purposes to be served by the rules of evidence and to avoid the perceived technicalities and anomalies of the common law, the uniform Evidence Acts adopt a more flexible approach to the admissibility of evidence. The threshold test of relevance is lower and the remaining rules of admissibility are more relaxed in relation to some categories of evidence (for example, hearsay evidence). As a consequence, increased emphasis is placed on the provisions in Part 3.11 of the Acts.[6] Hence, the provisions contained in Part 3.11 of the uniform Evidence Acts play a more important role in determining the admissibility of evidence than the discretionary exclusions at common law. This chapter examines how these provisions are operating in practice and how any concerns about their operation should be addressed.

[1] Section 90, which is located in Part 3.4 of the uniform Evidence Acts, provides a discretion to exclude evidence of an admission on the ground of unfairness. See Ch 10 for a discussion of this provision.

[2] Note that this list is exhaustive. The common law residual exclusions no longer apply in uniform Evidence Act jurisdictions.

[3] This term is used in a broad sense, as s 137 is a mandatory exclusion rule. See the discussion later in this chapter regarding the ‘discretionary’ aspect of s 137.

[4] Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [503].

[5] Ibid, [503].

[6] Australian Law Reform Commission, Evidence, ALRC 38 (1987), [53].