Organisation of the Report

The Report largely follows the organisation and structure of the uniform Evidence Act. In addition to provisions currently in the uniform Evidence Act, the Report discusses specific aspects of the policy framework of the uniform Evidence Act regime, issues relating to the receipt in court of evidence of Aboriginal and Torres Strait Islander traditional laws and customs, and the relationship between the uniform Evidence Act and other legislation.

Chapters 1–3: Introduction and background

Chapter 1 contains introductory and background material to the Inquiry and the uniform Evidence Acts. Chapter 2 describes the Acts and their relationship with the common law and other legislation. The need to maintain uniformity, particularly as more jurisdictions take up the uniform Evidence Act, is discussed and a number of recommendations to achieve this objective are made. The Commissions’ policy approach to evidentiary provisions outside of the uniform Evidence Acts is explained and discussed.

In Chapter 2, the policy framework underlying the uniform legislation is also addressed. One of the central approaches to evidence recommended in the ALRC’s previous Evidence inquiry,[5] and adopted in the uniform Evidence Acts, was not to distinguish between jury and non-jury trials. Whether the Acts should be amended to allow greater differentiation between the rules of evidence applying in jury and non-jury trials is discussed, and no change to the existing regime is recommended. The chapter concludes with a discussion of the scope of the uniform Evidence Acts, and in particular the general obligation of the court to ensure a fair trial.

Chapter 3 discusses certain concepts in the uniform Evidence Acts which appear to have caused confusion. In particular, the approach adopted in the Acts to evidence of tendency, coincidence, credibility and character, and the concepts of probative value, unfair prejudice and unfairness are analysed in detail. The chapter concludes with a recommendation for the implementation of educational programs to facilitate a better understanding among judicial officers and legal practitioners of:

  • the policy underlying the Acts;

  • specific provisions, in particular s 41 relating to improper questions in cross-examination and those relating to the admissibility of expert opinion evidence; and

  • issues relating to specific types of witnesses, such as children, and specific types of offences, such as sexual assault.

Chapters 4–6: Adducing evidence

Chapters 4–6 are concerned with the competence and compellability of witnesses (Chapter 4), the adducing of evidence from witnesses (Chapter 5) and the use of documents in court proceedings (Chapter 6). Chapter 4 addresses the concept of competence, particularly in relation to the giving of unsworn evidence by a witness, and recommends a change to the test of competence in s 13 of the Acts to make it easier for children and people with a cognitive impairment to give evidence. The Commissions also recommend that the term ‘de facto spouse’ used in the Evidence Act 1995 (Cth) be replaced with the gender neutral term ‘de facto partner’. The definitional change has a significant impact on the compellability of a de facto partner to testify against a defendant in criminal proceedings.

Chapter 5 considers a number of issues relating to the examination and re-examination of witnesses, the primary focus being the rules governing cross-examination of witnesses. While there has not been a suggestion to the Inquiry that these sections of the Acts are fundamentally flawed or require significant amendment, the giving of evidence in narrative form, what constitutes an improper question in cross-examination and the controls on the cross-examination of vulnerable witnesses, are identified as matters requiring reform.

The uniform Evidence Acts introduced significant changes with respect to the proof of documents. Chapter 6 examines how the provisions of the uniform Evidence Acts dealing with documentary evidence have operated in practice. It then examines two specific issues raised in IP 28 and discussed in detail in DP 69: proof of electronic evidence and evidence of official records. A recommendation is made to remove the requirement in s 50 that proof of voluminous or complex documents through the use of a summary only can be made by application to the court before the hearing concerned. The Commissions also recommend modernising the terminology in the Acts to take into account advances in electronic communication.

Chapters 7–15: Admissibility of evidence

Chapters 7–15 examine the rules pertaining to the admissibility of evidence. The discussion follows the ‘grid’ or ‘flowchart’ of admissibility set out in the diagram at the beginning of Chapter 3 of the uniform Evidence Acts. This diagram illustrates how the admissibility provisions in Chapter 3 of the Acts apply to particular evidence.

Chapter 7 discusses the hearsay rule, as codified in s 59 of the uniform Evidence Acts, and s 60, which governs the use for a hearsay purpose of evidence admitted for a non-hearsay purpose. Two amendments are recommended. The first will clarify the test of intended assertions in s 59. The second is designed to confirm that s 60 operates to permit evidence admitted for a non-hearsay purpose to be used to prove the truth of the facts asserted in the representation, whether or not the representation is first-hand or more remote hearsay.

In Chapter 8, two categories of hearsay evidence are discussed. The first applies to first-hand hearsay (where the maker has personal knowledge of the asserted fact).[6] The second category applies to more remote (or ‘second-hand’) hearsay.[7] Of particular note is the recommendation to remove the requirement in civil proceedings where the maker of a representation is available, that the occurrence of an asserted fact be fresh in the memory of that person at the time the representation is made. A recommendation also is made to expand the matters the court must take into account in criminal proceedings when determining if the occurrence of an asserted fact is ‘fresh in the memory’ of the person who made the representation and that person has been or is to be called to give evidence.

Chapter 9 discusses the exceptions to the opinion rule. These include exceptions in relation to lay opinion[8] and opinion based on specialised knowledge[9] (expert opinion evidence). Submissions and consultations have identified the admissibility of expert opinion evidence as a significant issue for this Inquiry. The Commissions recommend that s 79 of the uniform Evidence Acts be amended to clarify that the section applies to expert opinion evidence on the development and behaviour of children.

Chapter 10 focuses on admissions in a criminal context, with emphasis being placed on ss 82, 85 and 90 of the uniform Evidence Acts. Two recommendations are made. The first is an amendment to s 82 to ensure that evidence of admissions in criminal proceedings that are not first-hand are excluded from the ambit of s 60. The second recommendation clarifies the meaning of the term ‘in the course of official questioning’ as used in s 85.

Chapter 11 considers evidence pertaining to tendency and coincidence. A number of issues have been raised concerning the operation of ss 97, 98 and 101. The Commissions recommend ss 97 and 98 be re-worded to make the sections easier to understand. In DP 69, particular attention was paid to whether, for criminal trials, s 101 should be replaced by a provision which relies upon ‘the interests of justice’ as the test for admissibility. A test of this kind currently applies in Victoria. The Commissions conclude that this is not an option that should be adopted, and no change is recommended to s 101.

Chapter 12 looks at the credibility rule and exceptions to the credibility rule. During the course of the Inquiry, attention was drawn to a number of drafting deficiencies in the credibility provisions. Consequently, recommendations have been made to amend ss 102, 103, 104, 106, 108A, and 112. Of particular note, the Commissions recommend that the uniform Evidence Acts be amended to ensure that the credibility rule applies to evidence relevant to the credibility of a witness and relevant to the facts in issue, but not admissible for that purpose, which is also relevant to the credibility of a witness. This recommendation is intended to address a deficiency in s 102 identified by the High Court in Adam v The Queen.[10] Further, the previous removal of provisions under Australian law for an accused in a criminal trial to make an unsworn statement has necessitated a recommendation to repeal ss 105, 108(2) and 110(4) of the Evidence Act 1995 (Cth).

Chapter 13 focuses on selected aspects of the identification evidence provisions of the uniform Evidence Acts, including: the definition of identification evidence and whether it covers DNA evidence and exculpatory evidence; identification using pictures kept for the use of police officers (‘picture identification evidence’); and directions to the jury. The Commissions make no recommendations for amendment of these provisions.

Privilege is dealt with in Chapters 14 and 15. Chapter 14 deals specifically with client legal privilege, and the extension of privilege to any compulsory process for disclosure and in non-curial contexts. The protection of privileged communications is one of the major issues in the Inquiry. While it is clear from the submissions and consultations that the privilege provisions are working well overall, some amendments relating to client legal privilege and privilege against self-incrimination are warranted. The primary aim of the recommendations relating to client legal privilege is to clarify terms or, in some cases, align the Acts with developments at common law which are supported by the Commissions.

A major change recommended by the Commissions is the extension to any compulsory process for disclosure the following categories of privilege: client legal privilege, professional confidential relationship privilege, sexual assault communications privilege and matters of state. In addition to court proceedings, this includes pre-trial discovery and the production of documents in response to subpoena, and in non-curial contexts including search warrants and notices to produce documents. If these recommendations are implemented, the uniform Evidence Act provisions, rather than the common law, will apply in all of these circumstances.

Chapter 15 addresses confidential communications to a person acting in a professional capacity, sexual assault communications and medical communications privileges available under the Evidence Act 1995 (NSW), the Criminal Procedure Act 1986 (NSW) and the Evidence Act 2001 (Tas). The Commissions recommend that a modified version of the New South Wales provisions dealing with such communications should be adopted. Criticism of the certification process available under s 128 of the uniform Evidence Acts dealing with the privilege against self-incrimination is also analysed, and a modified procedure recommended. The enactment of a new provision is recommended to provide that a very limited privilege against self-incrimination can be claimed in respect of orders made in civil proceedings requiring a person to: a) disclose information about assets or other information; b) attend court to testify regarding assets or other information; or c) permit premises to be searched. This limited use immunity only would apply to documents or information created pursuant to a court order, and not to pre-existing documents or information.

Chapter 16 contains a recommendation for a new provision which will provide that, in civil and criminal proceedings, the court may, if it thinks fit, give an advance ruling or make an advance finding in relation to any evidentiary issue. The uniform Evidence Acts contain a number of provisions that give courts the discretion to exclude evidence otherwise admissible in both civil and criminal proceedings. In the chapter, the provisions in Part 3.11 of the Acts are discussed, and a recommendation is made to change the heading to read ‘Discretionary and Mandatory Exclusions’. This reflects the fact that s 137 is a mandatory, rather than a discretionary, exclusion.

Chapter 17–20: Other topics

Chapter 17 considers judicial notice—an area of the legislation that largely mirrors the common law—and discusses whether this concept has raised any concerns in practice. No amendment of the judicial notice provisions of the uniform Evidence Acts is recommended.

Chapter 18 considers comments, warnings and directions to the jury, with particular emphasis on warnings: about unreliable evidence; where there has been a delay in complaint; and in respect of children’s evidence. This is an area that generated a significant amount of attention, both in consultations and submissions. However, many of the concerns raised are outside the Commissions’ Terms of Reference. An inquiry into the operation of the jury system, initiated by the Standing Committee of Attorneys-General, is recommended. A recommendation is made to amend the uniform Evidence Acts to include provisions dealing with warnings in respect of children’s evidence similar to those contained in the Evidence Act 1995 (NSW). A recommendation designed to address the problems identified with Longman warnings is also made.

Chapter 19 addresses two issues relating to the evidence of Aboriginal or Torres Strait Islander (ATSI) witnesses. The Commissions recommend that the uniform Evidence Acts be amended to include a provision dealing specifically with the admissibility of evidence of ATSI traditional laws and customs. Whether it is necessary to amend the Acts to provide a privilege with respect to evidence that, if disclosed, would render an ATSI witness liable to punishment under traditional laws and customs, is also discussed, but no recommendation is made. In the Commissions’ view, the courts are currently dealing with the issue in an appropriate manner. Further, as explained in the chapter, any such amendment has the potential to disadvantage those it is designed to protect.

Chapter 20 considers the relationship between the uniform Evidence Acts and other legislation, and in particular examines whether there are concerns that significant areas of evidence law are dealt with in other legislation. The chapter looks at topics including rape shield laws, child witnesses and family law proceedings.

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

[6]Uniform Evidence Acts ss 63–66.

[7]Ibid ss 69–75.

[8]Ibid s 78.

[9]Ibid s 79.

[10]Adam v The Queen (2001) 207 CLR 96.