Summary of voluminous or complex documents

6.10 The Commissions did not consider that the absence of a legislative definition of ‘summary’ would give rise to any concerns in the application of s 156, or any other provisions in the uniform Evidence Acts containing the word ‘summary’, and did not propose any amendment to that section.[26] No submissions to DP 69 question this conclusion. However, a passing reference to s 50 (which allows proof of the contents of voluminous or complex documents by tendering a summary) in the discussion of s 156 in DP 69 gave rise to a submission as to how s 50 can be improved.

6.11 The Commonwealth Director of Public Prosecutions (CDPP) submits that the usefulness of s 50 is limited because an application to adduce evidence of two or more documents in the form of a summary must be made before the hearing.[27] It submits that this requirement is too restrictive and that the section should be amended to allow applications to be made during a hearing.[28]

6.12 In addition, preparation of a summary may be overlooked before a hearing commences, or not completed in time. For want of having applied to the court before the hearing, the usefulness of a summary is lost. In some cases, it may only become apparent once evidence begins to be adduced that a summary could streamline proceedings and assist the court.

6.13 The usefulness of s 50 is already widely acknowledged.[29] The Commissions are of the view that its usefulness will be enhanced if it is amended to allow an application to rely on a summary of documents to be made at any time in proceedings. The Commissions do not see that there will be any resulting prejudice to the party not tendering the evidence arising out of this amendment that could not be overcome by the exercise of judicial discretion, or that outweighs the benefits of the amendment. An application can always be rejected if it is opposed and evidence of prejudice or disadvantage demonstrated.

6.14 The Commissions commented in DP 69 that the provision to the other party of summaries of documents has been a useful tool in settling the issues early on and reducing hearing time.[30] This advantage is lost if an application is made late in proceedings. Hence, it is likely that most applications will continue to be made prior to the hearing, along with other preparatory steps such as discovery, interrogatories, serving of documents and so forth. A party that delays in making an application runs the risk that an objecting party can demonstrate prejudice and the application will be refused. However, although a late application may hold up proceedings while the other party is given the opportunity to examine or copy documents, proceedings may ultimately be expedited by not having to go through voluminous or complex documents laboriously. A summary can also assist counsel and a trial judge summarising the case to a jury.

Recommendation 61 Section 50(1)(a) of the uniform Evidence Acts should be amended by removing the words ‘before the hearing concerned’.

[26] See Ibid [6.15]–[6.16].

[27] Commonwealth Director of Public Prosecutions, Submission E 108,16 September 2005. See Uniform Evidence Acts s 50(1)(a).

[28] The Commissions are aware that there is already an occasionally-employed informal practice that, in the course of a hearing, one party will volunteer to make a summary of a bundle of documents, giving the other party, say, one night to look at it. It will then be admitted by mutual consent.

[29] See 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), [6.16].

[30] Ibid, [6.16].