The movement towards a uniform evidence law

2.1 The law of evidence in Australia is a mixture of statute and common law together with rules of court.^[1] As discussed in Chapter 1, although there were hopes when the Evidence Act 1995 (Cth) was passed that this would lead to uniform legislation throughout Australia, this has not yet occurred. Federal courts and courts in the Australian Capital Territory apply the law found in the Evidence Act 1995 (Cth)^[2]andsome provisions have a wider reach.^[3] In addition, New South Wales, Tasmania and Norfolk Island have passed mirror legislation.^[4] These statutes are substantially the same as the Commonwealth legislation but not identical.^[5] In New South Wales and Tasmania, state courts exercising federal or state jurisdiction and some tribunals apply the law found in the mirror legislation.

2.2 While harmonisation of the laws of evidence in Australia has not yet occurred, there are promising signs that non-uniform Evidence Act jurisdictions are moving towards entry into the uniform Evidence Act regime. The recommendations of the reports of the previous ALRC evidence inquiry^[6] and the provisions of the uniform Evidence Acts have been considered by various bodies, each of which have recommended enactment:

• Report of the Standing Committee on Uniform Legislation and Intergovernmental Agreements (Western Australia Legislative Assembly) Evidence Law, 18th Report in the 34th Parliament (1996);

• Law Reform Commission of Western Australia, Review of the Criminal and Civil Justice System in Western Australia Final Report, Project 92 (1999);

• the Victorian Parliament Scrutiny of Acts and Regulations Committee, Review of the Evidence Act 1958 (1996);

• the Victorian Bar Council and the Law Institute of Victoria jointly in November 2003;^[7] and

• the Victorian Law Reform Commission (VLRC) reports on defences to homicide and sexual offences.^[8]

2.3 In addition, as discussed in Chapter 1, it now appears likely that Victoria, Western Australia and the Northern Territory will enact legislation based on the uniform Evidence Acts. The enactment of mirror legislation in a variety of jurisdictions brings with it the attendant difficulty of ensuring, to the extent possible, that the Acts remain uniform. This is discussed in detail below, and a recommendation to monitor and promote uniformity is made.

Relationship with common law, equity and other statutes

2.4 The extent to which the uniformEvidence Acts operate as a code is an issue which has attracted some discussion.^[9] It is uncontested that the uniformEvidence Acts in their entirety are not a code of the law of evidence. This would have required an express intention by the ALRC to develop a code and by the relevant legislatures to enact one.^[10] The New South Wales Attorney General, in his second reading speech, stated: ‘it should be noted that, while the bill codifies many aspects of the law of evidence, it is not intended to operate as an exhaustive code’.^[11] For the uniformEvidence Acts to do so would have required a significantly different statutory scheme; one which explicitly excluded the operation of evidentiary rules and principles contained in other bodies of law.

2.5 The New South Wales, Tasmanian and Norfolk Island Evidence Acts provide that the legislation does not affect the operation of an evidentiary principle or rule of the common law or equity in proceedings to which the legislation applies, except in so far as the legislation provides otherwise expressly or by necessary intendment.^[12] Without limiting these provisions, the New South Wales, Tasmanian and Norfolk Island Evidence Acts also provide that they do not affect the operation of a legal or evidential presumption that is consistent with the legislation.^[13] While the Commonwealth Act contains a version of the latter provision,^[14] it makes no provision for the operation of the rules and principles of evidence developed at common law or in equity. However, so far as the provisions of the Commonwealth Act are not applicable to particular proceedings, are not sufficient to carry them into effect, or are not appropriate to provide adequate remedies, s 80 of the Judiciary Act 1903 (Cth) will result in the application of the common law as modified by the statute law of the state or territory in which the court is exercising jurisdiction.

2.6 The uniform Evidence Acts do, however, exclude the operation of other laws regarding the admissibility of evidence and the competence and compellability of witnesses.^[15] As a consequence, there has been some judicial discussion as to whether Chapter 3 of the uniform Evidence Acts functions as a code. Stephen Odgers SC has argued that Chapter 3 ‘constitutes a code for the rules relating to the admissibility of evidence, in the sense that common law rules relating to the admissibility of evidence are abrogated’.^[16] Section 56 has been cited by a number of judges as the ‘pivotal provision’ regarding the operation of the uniform Evidence Acts to admit or exclude evidence.^[17] On this basis, Branson J suggested in Quick v Stoland Pty Ltd that ‘Chapter 3 is designed to deal exhaustively with this topic and, in a practical sense, constitutes a code relating to the admissibility of evidence in proceedings to which the Act relates’.^[18] The issue has not been judicially resolved, with the discussion being limited to comments in obiter dicta.

2.7 The significance of whether the uniform Evidence Acts are a code has emerged in the context of the broader discussion regarding the relationship between the uniform Evidence Actsand the common law. If the admissibility provisions do operate as a code, this will influence significantly the way in which common law principles can be used in the application of the uniform Evidence Acts.^[19] In the light of this, a consensus has emerged that the important issue is not whether Chapter 3 is technically a code, but the extent to which all issues of admissibility are to be governed by the statutory scheme.^[20] There is judicial concern that statements implying that the uniform Evidence Acts are not a code might ‘be used as a means to retain aspects of the common law of evidence which are inconsistent with the operation of the Act’.^[21]

2.8 An approach that abandons any technical attempt to characterise the admissibility provisions of the uniform Evidence Acts with respect to codification is preferable. The jurisprudence regarding legal codes and codification reveals a complexity not easily amenable to such an attempt.^[22] However, reflecting on the nature of codified legislation can be useful. This is because the uniform Evidence Acts do embody some of the aspects of truly codified legislation, as implemented in common law jurisdictions.^[23] When considering the codification of New Zealand’s evidence law, the New Zealand Law Commission identified the essential elements of a legal code:

A true code may be defined as a legislative enactment which is comprehensive, systematic in its structure, pre-emptive and which states the principles to be applied. It is pre-emptive in that it displaces all other law in its subject area, save only that which the code excepts. It is systematic in that all of its parts form a coherent and integrated body. It is comprehensive in that it is sufficiently inclusive and independent to enable it to be applied in a relatively self-sufficient way. It is, however, the final element which particularly distinguishes a code from other legislative enactments: the purpose of a code, as opposed to more limited statutory enactments, is to establish a legal order based on principles.^[24]

2.9 A primary purpose of the ALRC’s original evidence inquiry was to review the common law and develop a principled approach to evidence law. In some areas this resulted in substantial changes to the common law; in other areas the common law remains an important reference assisting application of the uniform Evidence Acts. The approach taken by the High Court of Australia in Papakosmas v The Queen^[25]and the New South Wales Supreme Court in R v Ellis^[26] reflects an approach guided by the principles articulated in the uniform Evidence Acts. Stated simply, Chapter 3 of the uniform Evidence Acts governs admissibility issues. Reference to the common law can facilitate an understanding of underlying concepts and helps to identify the changes brought about by Chapter 3.

2.10 A number of other statutes in each jurisdiction include rules of evidence applicable to specific legislative schemes or particular offences. For example, s 8(3) of the Evidence Act 1995 (Cth)provides that the Act is subject to the Corporations Act 2001 (Cth)and the Australian Securities and Investments Commission Act 2001 (Cth). Provisions in these statutes contain specific formulations of the privilege against self-incrimination as they relate to proceedings brought under these Acts.^[27] In New South Wales, s 293 of the Criminal Procedure Act 1986 (NSW) restricts the circumstances in which evidence in relation to a complainant’s sexual history will be admissible.^[28]

The uniform Evidence Acts

2.11 The uniform Evidence Acts extend to all proceedings in a relevant court,^[29] including proceedings that relate to bail; are interlocutory proceedings or proceedings of a similar kind; are heard ‘in chambers’; or, subject to the direction of the court, relate to sentencing.^[30] In relation to privilege, other than religious confession privilege, the Acts do not extend to pre-trial matters. This is an important issue for this Inquiry, and is discussed in detail in Chapter 14.

2.12 In relation to sentencing, s 4(2) states that the uniform Evidence Acts extend to sentencing only:

(a) … if the court directs that the law of evidence applies in the proceeding; and

(b) if the court specifies in the direction that the law of evidence applies only in relation to specified matters—the direction has effect accordingly.^[31]

2.13 The ALRC is currently conducting a separate Inquiry into aspects of federal sentencing law. One of the issues for that Inquiry is the role of evidence laws in relation to sentencing. As this is substantively a sentencing issue, it will be dealt with in that Inquiry.^[32]

2.14 There are a number of matters, which might be described as evidentiary, that are omitted from the uniform Acts. This is a consequence of the definition of evidence law adopted in the previous Evidence inquiry.^[33] In its Interim Report (ALRC 26), the ALRC stated that

the laws of evidence should be classified as part of adjectival law—the body of principles and rules which deal with the means by which ‘people’s rights and duties may be declared, vindicated or enforced, or remedies for their infraction secured’.^[34]

2.15 Accordingly, it was stated in ALRC 26 that the ALRC’s review would exclude:

• Those topics which should be classified as part of the substantive law or which are so linked to the substantive law that they can only properly be considered in that context. These include legal and evidential burden of proof, parol evidence rule, res judicata, issue estoppel, presumptions.

• Those topics of adjectival law which should be classified as procedural rather than evidentiary. The result of this distinction is the exclusion of rules such as those relating to the gathering of evidence (including evidence on commission) the perpetuation of testimony, who begins, notice of alibi evidence, no-case submissions and the standard of proof applicable.

• Topics such as ordering witnesses out-of-court, bans on the publication of evidence, duties of the prosecution in calling evidence, the powers of judges and parties to call witnesses and the suggestion that there should be changes in the organisation and operation of forensic scientific services.^[35]

2.16 This approach was reflected in the drafting of the Evidence Act 1995 (Cth). As a result, a number of topics commonly found in evidence texts, perhaps most notably who bears the legal burden of proof on the facts in issue,^[36] issue estoppel, res judicata, the parol evidence rule and the court’s obligation to ensure a fair trial,^[37] are not found in the statute.

2.17 The Acts are divided into five chapters. The organisation and structure follow the order in which evidentiary matters will generally arise in a trial. This is consistent with the recommendations of the ALRC.^[38] Accordingly, issues concerning the adducing of evidence in relation to both witnesses and documents are dealt with in Chapter 2; Chapter 3, which is the central part of the statute, deals with the admissibility of evidence; and issues of proof follow in Chapter 4. A flow chart on the admission of evidence precedes s 55 and gives guidance on whether evidence is admissible.

2.18 The Acts introduce significant reforms to the common law.^[39] For example, the ‘original document’ rule is abolished in favour of a more flexible approach (Pt 2.2); cross-examination of a party’s own witness is permissible, with leave of the court, if the witness gives ‘unfavourable’ evidence (s 38); the hearsay rule is substantially modified (Pt 3.2); tendency and coincidence evidence is not admissible unless notice has been given and it has ‘significant probative value’, and in criminal proceedings, the probative value of such evidence adduced by the prosecution must ‘substantially outweigh’ any prejudicial effect it may have on the defendant (Pt 3.6); the privilege against self-incrimination is modified (s 128); a court may exercise a general discretion to refuse to admit evidence where the probative value is substantially outweighed by the danger that it is unfairly prejudicial to the defendant (s 135), or may limit the use to be made of the evidence if there is a danger that the evidence might be unfairly prejudicial to a party or be misleading or confusing (s 136); the use of computer-generated evidence is facilitated (ss 146–147); and a ‘request’ system has been introduced as a procedural safeguard (Div 1 of Pt 4.6). Other notable reforms include abolition of the ultimate issue and common knowledge rules (s 80), an extension of privilege to religious confessions (s 127) and, in the case of the Evidence Act 1995 (NSW), an extension of a qualified privilege to protect communications made in the context of a professional confidential relationship (Div 1A of Pt 3.10).

Evidentiary provisions outside the uniform Evidence Acts

2.19 The Terms of Reference given to the ALRC and the New South Wales Law Reform Commission (NSWLRC) direct the Commissions to examine the relationship between the Evidence Act 1995 (Cth) and the Evidence Act 1995 (NSW) and other legislation regulating the law of evidence. The VLRC Terms of Reference direct the VLRC to examine more broadly ‘any necessary modification of the existing provisions of the Uniform Evidence Act’. The Commissions are to have regard to the laws, practices and procedures applying in proceedings in their respective jurisdictions; and whether the fact that significant areas of evidence law are dealt with in other legislation poses any significant disadvantages to the objectives of clarity, effectiveness and uniformity.

2.20 As discussed in Chapter 20, the uniform Evidence Acts work in conjunction with evidentiary provisions contained in a range of other Commonwealth, state and territory legislation. A central concern of the Inquiry is to consider whether, in view of the desirability of clarity, effectiveness and uniformity in evidence law, some of these other evidentiary provisions should be incorporated into the uniform Evidence Acts and, if so, in what form.

2.21 Issues concerning whether certain existing or proposed evidentiary provisions should be enacted in the uniform Evidence Acts or in other legislation arise in a multitude of contexts throughout this Report. The discussion and conclusions reached are informed by the Commissions’ common policy position with regard to matters that should be incorporated in the uniform Evidence Acts and matters that should be enacted elsewhere.

2.22 This policy position is based on the following propositions: (i) uniformity in evidence laws should be pursued unless there is good reason to the contrary; (ii) the uniform Evidence Acts should be a comprehensive statement of the laws of evidence (the evidence law ‘pocket bible’); and (iii) the uniform Evidence Acts should be of general application to all criminal and civil proceedings. Each of these propositions is discussed briefly below.

Uniformity in evidence laws should be pursued

2.23 Uniformity in evidence laws should be pursued unless there is good reason to the contrary. A primary objective of the Inquiry is to capitalise on a decade of operation of the uniform Evidence Acts regime. The Commissions hope that identifying the pressure points that have arisen and addressing those aspects of the uniform Evidence Acts which require fine-tuning will facilitate the introduction of the Act in all Australian states and territories.

2.24 The Evidence Act 1995 (Cth) and Evidence Act 1995 (NSW) were in almost all respects identical when enacted. The overwhelming majority of provisions remain identical but some now differ from each other in significant ways. The Tasmanian and Norfolk Island Acts also have differences, both from each other and from the Commonwealth and New South Wales legislation. These differences are discussed, where relevant, throughout this Report.

2.25 The uniform Evidence Acts are more correctly described as ‘mirror’ legislation rather than as uniform legislation. Mirror legislation refers to a situation in which a draft statute is enacted by separate legislation in each participating jurisdiction. This was what occurred when the Evidence Act 1995 (Cth) and Evidence Act 1995 (NSW) were enacted. While this mechanism produces virtual uniformity at the outset, this often erodes over time as legislators exercise their independent political judgement and make piecemeal changes.^[40]

2.26 The Commissions have been mindful of the desirability of maintaining uniformity when considering whether certain categories of evidence law should be incorporated into the uniform Evidence Acts. Arguably, the more non-uniform provisions that are included, the less the incentive to maintain uniformity in the existing provisions.

2.27 Further, as more jurisdictions pass mirror uniform legislation, the potential for divergence increases. This issue is not unique to the uniform Evidence Act regime. Current initiatives to enact uniform defamation and uniform legal profession legislation raise similar concerns. One possible solution is for a periodic review of the legislation by Australian law reform bodies. This Inquiry has demonstrated that coordinated efforts of state, territory and federal governments, coupled with the ability and willingness of law reform bodies to work cooperatively to achieve an outcome, can produce broad consensus on legislative reform in an important area.

2.28 In order to ensure the maintenance of harmonisation over time and the general effectiveness of the uniform Evidence Acts, the Commissions are of the view that Australian governments should consider initiating a joint review of the Acts within 10 years of the tabling of this Report. Such a review will prevent ossification, allow for monitoring of the implementation of the policy objectives and promote uniformity.

2.29 Uniformity will also be promoted if the Commonwealth, state and territory governments enter into an intergovernmental agreement. This agreement should provide that, subject to limited exceptions, any proposed change to the uniform Evidence Act in force in each jurisdiction be approved by the Standing Committee of Attorneys-General (SCAG). The party proposing the change should be required to give notice in writing to the other parties to the agreement, and the proposed amendment should be considered at the next SCAG meeting, or as otherwise agreed by the members of SCAG.

2.30 To ensure that all views are taken into account when issues relating to the uniform Evidence Acts arise, the Commissions are of the view that the amendment process should be informed by the advice of an expert advisory committee established to assist SCAG. The Advisory Committee established by the ALRC for the purposes of this Inquiry provides a workable model.

2.31 If such an intergovernmental agreement is entered into, SCAG will have to determine whether all provisions of the uniform Evidence Acts are subject to the amending provisions of the agreement. There may be legitimate variations in local practice which warrant a non-uniform approach in relation to some provisions. An example from the Evidence Act 2001 (Tas) illustrates this point. Section 53(2) of the Tasmanian Act provides that, on application that a demonstration, experiment or inspection be held,

(2) A judge is not to make an order unless satisfied that –

(a) the parties will be given a reasonable opportunity to be present; and

(b) if there is a jury, the jury will be present.

2.32 There is no requirement that the judge be present. The Evidence Act legislation in force in the Commonwealth, New South Wales and Norfolk Island provides that the judge and, if there is a jury, the jury, will be present.^[41]

2.33 The reason for this variation can be traced back to Tasmanian criminal practice which pre-dates the introduction of the Evidence Act 2001 (Tas). In Tasmania a court officer known as a ‘shower’, usually a clerk of the court, takes the jury on the view. The judge usually does not attend.^[42]

2.34 Any agreement will also need to allow, without requiring SCAG approval, alteration or introduction of:

• non-uniform provisions such as those that have to refer to the jurisdiction in question or to other legislation in that jurisdiction;^[43] and

• offence-specific provisions located outside of the uniform Evidence Acts which limit or qualify the effect of provisions in the particular Act.

In addition, it should not be necessary to have the approval of SCAG before introducing the uniform Evidence Act into a new jurisdiction.

2.35 While such limited exceptions will need to be made, the Commissions are of the strong view that the provisions of the uniform Evidence Act, as in force in the Commonwealth and New South Wales, and as amended by the recommendations contained in this Report, should be the models upon which the future mirror statutes are based. These statutes, when amended in accordance with the recommendations in this Report, will contain what the Commissions regard as provisions of general application. Any amendment to these general provisions should trigger the amendment mechanism outlined in the intergovernmental agreement.

2.36 There are three issues on which the Commissions are not unanimous:

• the proposed amendment to s 41 relating to improper questions in cross-examination.^[44] The ALRC and NSWLRC recommend that the section be replaced with a provision which reflects s 275A of the Criminal Procedure Act 1986 (NSW). The VLRC is of the view that the amended provision should provide specific protection for vulnerable witnesses;

• the NSWLRC considers that s 60 should be amended to exclude a previous representation of a party to any proceeding made to an expert to enable that expert to give evidence. The ALRC and the VLRC do not share this view;

• the NSWLRC does not agree that it is necessary to address in the uniform Evidence Act the circumstances in which a warning may be given by a judge where there is forensic disadvantage caused by delay in the prosecution of an offence.^[45] The ALRC and VLRC do not share this view.

2.37 If Recommendation 2–1 is implemented, the matters will be resolved pursuant to the terms of the Intergovernmental Agreement. To assist SCAG, the Commissions have set out in the relevant chapters detailed reasons for adopting differing views.

The uniform Evidence Acts should be comprehensive

2.38 The uniform Evidence Acts should be a comprehensive statement of the laws of evidence. One of the great advantages of the uniform Evidence Acts to judicial officers, legal practitioners and academics has been referred to as their ‘pocket bible’ status. That is, ideally, with respect to rules of evidence applicable in all civil and criminal proceedings, it should not be necessary to refer to other statutes.

2.39 This goal is in tension with the proposition that the uniformity of the Evidence Acts should be maintained. The uniform Evidence Acts could be made more comprehensive by including all manner of evidentiary provisions, even where these are not uniform across jurisdictions. Suggestions have been made that each uniform Evidence Act could include a separate part containing evidentiary provisions unique to the particular jurisdiction. Alternatively, the jurisdiction-specific provisions could be incorporated into the relevant part of the Act, maintaining its overall structure.

2.40 These suggestions found little support in submissions and consultations. In the Commissions’ view the ‘pocket bible’ approach should not be pursued at the cost of reduced uniformity.

2.41 The two most common examples of non-uniform provisions are those dealing with the adducing of children’s evidence, and offence-specific provisions relating to sexual assault proceedings. Both of these areas have received extensive consideration by a number of law reform bodies, government task forces, non-governmental organisations and royal commissions both in Australia and overseas.^[46]

2.42 Hopefully, as more jurisdictions enact a uniform Evidence Act, there will be greater scope for uniformity in areas where significant difference now exists. Further, the requirement of the consent of SCAG to the amendment of provisions of general application, coupled with the Commissions’ recommendation, noted below, that all Australian jurisdictions should work towards harmonisation of provisions relating to issues such as children’s evidence and offence-specific evidentiary provisions, will facilitate the movement towards the Act as a true ‘pocket-bible’. Pending these developments, the Commissions are of the view that the uniform Evidence Acts should be of general application.

The uniform Evidence Acts should be of general application

2.43 The uniform Acts should be of general application to all criminal and civil proceedings. The corollary is that the uniform Evidence Acts should generally not include provisions of application only to specific offences or categories of witness.^[47] In areas such as family law proceedings and proceedings involving child witnesses, evidentiary provisions are closely linked with particular types of proceedings or associated procedural provisions, and it is most convenient for these to be co-located.

2.44 The balance of convenience and policy principle will differ from case to case. For example, while the Commissions have rejected the idea of introducing a hearsay exception directed to children’s evidence into the uniform Evidence Acts, the introduction of a provision dealing with expert evidence on the credibility or reliability of children’s evidence is recommended. This is, in part, because the latter reform does not constitute a major departure from the existing law, but rather highlights the admissibility of a particular type of expert opinion evidence to facilitate a change in practice.^[48] In summary, the Commissions acknowledge that total consistency is desirable but currently unattainable.

Policy framework

General

2.45 In carrying out its original inquiry, the ALRC sought to locate within the new legislation many of the existing common law rules. However, it also recommended modifications to those rules to remove unnecessary restrictions on evidence being placed before courts and to reform the law to meet the demands of contemporary society.^[49]

2.46 In the final Report (ALRC 38), the ALRC stated that its inquiry was predicated on the continuation of the trial system.^[50] In particular, it emphasised two features of that system:

• The adversary nature of the civil and criminal trial. In ALRC 38, the ALRC argued that: the nature of the adversary system meant that rules are important to guide and control the proceedings; rules allow predictability about what evidence is necessary and admissible so as to enable parties to prepare their cases for trial with reasonable confidence, and to be able to assess their prospects for success; and without a body of rules, control of trials through an appeal system and appellate review would be unpredictable. However, the ALRC noted the difficulty of establishing an appropriate level of predictability.

The more detailed and precise the rule, the more difficult it may be to understand it fully and the more rigid it is likely to be in its application. The more general the language used the more flexible the rule will be but the less predictable will be its application. This issue is central to the approach to be taken in reform proposals. The approach taken in the interim proposals was to attempt to draft rules as the first option. Where this was not possible, discretions were formulated.^[51]

• Jury trial. In ALRC 38, the ALRC raised the question of separate rules for jury and non-jury trials. However, it concluded that the preferable approach was to distinguish between civil and criminal trials.^[52] This is discussed in detail later in this chapter.

2.47 ALRC 38 was also predicated on the continuation of the laws of evidence in courts.^[53] This is by way of contrast with many administrative and quasi-judicial tribunals that are not bound by the rules of evidence. In particular, the ALRC emphasised that even if it had been open to the Commission under its Terms of Reference, ‘it would not be appropriate simply to abolish the rules of evidence’.^[54] In the case of criminal trials, the ALRC stated that ‘the trial is accusatorial and the underlying concern to minimise wrongful convictions warrants a strict approach to the admissibility of evidence’.^[55] This Inquiry has not departed from this underlying assumption, nor does it consider that its Terms of Reference permit it to do so.

2.48 In relation to civil trials, the ALRC stated that while a civil trial is a method for the resolution of a dispute between plaintiff and defendant, ‘the object of a trial must be something more than merely to resolve a dispute’ and noted that the object should be to resolve a dispute in a way that is ‘just’.^[56] It concluded that there were four essential elements to a civil trial achieving its purpose:

• fact-finding;

• procedural fairness;

• expedition and cost; and

• quality of rules.^[57]

2.49 In ALRC 26, the ALRC argued that, while the elements of a civil trial are also important to a criminal trial,

the nature and purpose of the criminal trial differ significantly from those of the civil trial. Its larger and more general object is to serve the purposes of the criminal law, which are to control, deter and punish the commission of a crime for the general good.^[58]

2.50 In ALRC 38, the ALRC confirmed the five key features of a criminal trial that had been discussed in ALRC 26:

• Accusatorial system. An accused is presumed innocent until proved guilty and has no obligation to assist the Crown.

• Minimising the risk of wrongful convictions. Traditionally this reflects the view that it is in the interest of the community to minimise the risk of conviction of the innocent even if it may result, from time to time, in the acquittal of the guilty.

• Definition of central question. The central question is whether the Crown has proved the guilt of the accused beyond reasonable doubt. The purpose of the criminal trial is to be able to say with confidence if there is a guilty verdict that the accused committed the offence charged with the requisite mens rea.

• Recognition of rights of individual. Convictions are not to be obtained at any cost and accused persons have rights consistent with recognition of their personal dignity and integrity and with the overall fairness of society.

• Assisting adversarial contest. An accused person is entitled to be armed with some protections consistent with ‘the idea of the adversary system as a genuine contest’.^[59]

2.51 The ALRC noted that this view of the nature and purpose of the criminal trial is of long standing. It identified the three main issues for inquiry in relation to criminal trials:

• whether and, if so, to what extent the criminal trial involves a search for the truth;

• the traditional concern to minimise the risk of wrongful conviction; and

• the balance to be struck between the prosecution and the defendant.^[60]

2.52 In ALRC 38, the ALRC discussed the arguments surrounding the issue of a ‘search for the truth’, noting their impact on the privilege against self-incrimination, the use of the unsworn statement and cross-examination of the accused.^[61] It rejected the view that all else should be subordinated to a search for the truth, emphasising the policy considerations of ‘the serious consequences of conviction, fear of error, a concern for individual rights and fear of abuse of governmental power’.^[62]

2.53 The ALRC also discussed whether a case had been made out to disturb the traditional balance that favours the wrongful acquittal of accused persons to wrongful conviction. It concluded that no such case had been made out. While the ALRC agreed with criticism of technical acquittals, it felt that its recommendations would go a long way to avoid such results.^[63]

2.54 In ALRC 38, the ALRC also addressed the balance between the prosecution and the defence. The ALRC observed that the proposals in ALRC 26 had been criticised by some as favouring the accused, and by others as favouring the prosecution.^[64] The ALRC noted in ALRC 38 that it had not started out with any preconceived notion of altering the balance, but acknowledged that some of the proposals advanced in ALRC 26 would have that impact. In response to submissions, amendments were made to some of the ALRC’s original proposals: some that might favour the prosecution;^[65] and some that might favour the accused.^[66]

2.55 Perhaps not surprisingly, this debate continues. In some consultations and submissions, concerns were expressed that the uniform Evidence Acts may have shifted the balance in favour of the prosecution in criminal cases.^[67] The basis of this criticism revolves largely around the operation of ss 38^[68] and 60.^[69] Others suggest that, while the uniform Evidence Acts have had a significant impact on the way criminal trials are conducted—and in particular on the prosecution’s duty to call relevant witnesses—this change has not shifted the balance in favour of the prosecution.^[70]

2.56 Ultimately, the recommendations in ALRC 38 were structured around the policy framework described in ALRC 26. The key elements of the framework were:

• Fact-finding. This is the pre-eminent task of the courts and recommendations were directed ‘primarily to enabling the parties to produce the probative evidence that is available to them’.^[71]

• Civil and criminal trials. These differ in nature and purpose and this should be taken into account. In regard to the admission of evidence against an accused, a more stringent approach should be taken. The differences were also reflected in areas such as: compellability of an accused, cross-examination of an accused, and in the exercise of a court’s power in matters such as the granting of leave.

• Predictability. The use of judicial discretions should be minimised, particularly in relation to the admission of evidence, and rules should generally be preferred over discretions.

• Cost, time and other concerns. Clarity and simplicity are the objectives.^[72]

Evidence, jury and non-jury trials

2.57 One of the central approaches to evidence recommended in ALRC 38, and adopted in the uniform Evidence Acts, was not to distinguish between jury and non-jury trials per se, but to draw a distinction between criminal and civil proceedings. This has been discussed above. While juries are used primarily in criminal proceedings for serious indictable offences,^[73] they are not the exclusive province of criminal trials. For example, juries are used in defamation cases in New South Wales, and in some civil trials in Victoria.

2.58 While the Acts contain some provisions dealing specifically with juries—including those dealing with the presence (or absence) of the jury where preliminary questions are heard and determined, and concerning judicial directions to juries—the Acts do not generally distinguish between trials by judge and jury (jury trials) and trials by judge alone (non-jury trials).

2.59 One of the purposes served by the laws of evidence is to keep from juries evidence that may be misused by them.^[74] In ALRC 26, the ALRC discussed in some detail the view that the laws of evidence developed from a mistrust of a jury’s ability properly to assess the evidence placed before it. The ALRC noted that if that was the only, or the main, purpose served by the laws of evidence, the direction of reform should be to abolish, or at least severely to limit, the operation of the rules of evidence in Commonwealth and territory courts, as juries are seldom used.^[75]

2.60 While the ALRC rejected the thesis that the rules of evidence are purely the ‘child of the jury’, it acknowledged that the significance of jury trials for the rules of evidence had to be considered.^[76] Specifically, the ALRC considered whether there should be separate rules designed for jury and non-jury trials.

2.61 The case for separate rules is, in essence, that a more flexible and less exclusionary system can be used for non-jury trials. It is argued that judges and magistrates, through training and experience, are less susceptible than jurors to misusing evidence such as hearsay or character evidence.^[77]

2.62 The ALRC observed that, on the available evidence, it could not be assumed that the potential to misuse evidence is greater for jurors. It concluded that a case had not been made out for the development of separate rules of evidence for jury and non-jury trials. Rather, for the purposes of evidence law, the distinction between civil and criminal trials was seen as the more important division.^[78]

2.63 The ALRC noted that there may be other reasons why doubtful evidence should be excluded from criminal trials except in clearly defined circumstances. Further, considerations of time, cost and fairness—none of which has any connection with the quality of the tribunal—were said to warrant control over unreliable and dangerous evidence.^[79]

2.64 A more recent inquiry has considered whether different rules of evidence should apply to non-jury trials. The Law Reform Commission of Western Australia (LRCWA) considered, as part of its review of the criminal and civil justice system, whether the general applicability of exclusionary rules of evidence should be varied.

2.65 The LRCWA proposed initially that a dual system of rules of evidence should be introduced, with one set of rules applying to jury trials and one to non-jury trials.^[80] The LRCWA later withdrew this proposal, noting that such a dual system of rules and procedure ‘may create further complexity in the already highly complex laws of evidence and undermine public confidence in jury trials’.^[81]

Submissions and consultations

2.66 There is general support for the approach in the uniform Evidence Acts of placing primary importance on the nature of the proceeding, rather than on whether the case was being tried before a jury.^[82] The Law Council of Australia (Law Council) notes:

In considering evidential rules a fundamental distinction needs to be drawn between civil and criminal proceedings. Whilst civil process is ultimately concerned to provide a forum for the settlement of disputation between citizens, criminal process involves accusation by the state against citizens for the purpose of punishment. It is a foundational principle of criminal process that it should be designed to avoid the wrongful conviction of the innocent and this requires evidential rules protecting an innocent accused from this risk.^[83]

2.67 The Law Council further notes that ‘this foundational principle applies whether an accused is tried before a jury or before a judge sitting alone and the Council is of the view that generally the rules of evidence should be the same at both forms of trial’.^[84]

2.68 One senior practitioner considers that specific provisions, for example s 60 relating to the admission of hearsay evidence, and the credibility provisions, could be limited to jury trials.^[85] This view has not received general support. For example, one judicial officer notes:

I think it would be highly undesirable to distinguish between jury and non-jury trials for the purposes of the rules of evidence. One of the great benefits of the Act is that there are uniform rules which, in my submission, operate fairly and efficiently in both criminal and civil trials. It would be confusing, and possibly a source of unfairness, to make more distinctions than are absolutely necessary.^[86]

2.69 It is suggested that, even in non-jury trials, the discipline imposed by provisions such as the discretionary exclusions in ss 135 and 136 has a beneficial effect on judicial decision making.^[87] The Law Council notes that

although it may appear unnecessary for judges sitting alone to exercise discretions to exclude prejudicial evidence, the existence of such discretions serves to emphasize emphatically to the judge not to act upon such evidence …^[88]

The Commissions’ view

2.70 Submissions received and consultations conducted during the course of this Inquiry indicate clearly that there is little support for more differentiation in the uniform Evidence Acts between rules applying in jury and non-jury trials. It appears that the emphasis on the distinction between civil and criminal trials, rather than whether a jury is involved in the decision-making, is working well in practice. The Commissions do not recommend that the uniform Evidence Acts be amended to allow more differentiation between rules of evidence applying in jury and non-jury trials.

Scope of the uniform Evidence Acts

2.71 Chapter 1 of the uniform Evidence Acts deals with a number of preliminary matters.^[89] Part 1.1 deals with formal matters, including the short title (s 1), commencement (s 2), and definitions (s 3). In relation to the definition section, the Evidence Act 2001 (Tas) defines the terms used in the Act in s 3, whereas the Commonwealth, New South Wales and Norfolk Island Acts define the terms in a Dictionary at the end of the Acts.

2.72 Part 1.2 of the uniform Evidence Acts deals with the application of the Acts. Some problems with the wording used in the sections in Part 1.2 have been identified. Drafting problems of general application will be discussed in this section of the Report.

Section 4—Courts and proceedings to which the Acts apply

2.73 A question arises as to the meaning of the phrase ‘applies in relation to all proceedings’ in s 4(1) of the uniform Evidence Acts.^[90] Dealing first with the meaning of the word ‘proceeding’, in the context of the Evidence Act 1995 (NSW), Giles CJ Comm D (as his Honour then was) noted in Sved v Council of the Municipality of Woollahra:^[91]

Proceeding is not defined in the Evidence (Consequential and Other Provisions) Act, or in the [Evidence Act 1995 (NSW)]. The word ‘proceeding’ may or may not, depending upon its context and purpose, refer to a step in the action … and in other contexts has been held to refer to the action as whole … and to a step in the action … Neither the report of the [Australian] Law Reform Commission (Report No 38, 1987) nor the report of the New South Wales Law Reform Commission (LRC 56, 1988) sheds light on the matter.^[92]

2.74 His Honour held that ‘proceedings’ may consist of a step in an action.^[93] The Family Court of Australia applied a similar interpretation of s 4(1) of the Evidence Act 1995 (Cth) in Deputy Commissioner of Taxation v McCauley.^[94]

2.75 Having established that ‘proceeding’ for the purpose of s 4(1) of the uniform Evidence Acts may consist of a step in the action, the question arises whether any step will suffice, or whether there are limitations on the types of steps that will qualify. Such a limitation was suggested in Griffin v Pantzer.^[95] When addressing the application of s 128 of the Evidence Act 1995 (Cth) to an examination under s 81 of the Bankruptcy Act 1996 (Cth), Allsop J, on behalf of a Full Court of the Federal Court, stated:

The word ‘proceedings’ is capable of wide and flexible application. In the Evidence Act, however, the proceedings contemplated are those conducted by a court, or by a person or by a body who or which is required to apply the laws of evidence. The whole Evidence Act is concerned with the regulation of the rules of evidence in proceedings in which there are parties, and in which there are witnesses.^[96]

2.76 His Honour went on to note:

It is not easy to see how an examination under s 81 is such a proceeding. It is not between parties. It is not the resolution or agitation of a lis at which evidence is adduced under the rules of evidence. It does not have parties or witnesses properly so-called. It is an interrogation—a fact-finding exercise of the kind discussed by Lord Hanworth MR in Re Paget [[1927] 2 Ch 85].^[97]

2.77 Hence, the present state of the law seems to be that ‘proceedings’ in s 4(1) of the uniform Evidence Acts encompasses any step in a suit or action where there is an issue between parties in dispute and the suit or action involves evidence ‘adduced under the rules of evidence’.^[98]

2.78 While the case law has provided guidance as to the meaning of the word ‘proceedings’ in s 4(1), a question arises as to whether the prepositional phrase ‘in relation to’ as used in s 4 of the Commonwealth, New South Wales and Norfolk Island Evidence Acts means something different to the word ‘to’ as used in s 4 of the Evidence Act 2001 (Tas).^[99] If the answer is ‘no’, then to clarify the meaning of the section and promote uniformity, the phrase ‘in relation’ in s 4 of the uniform Evidence Acts should be deleted.

2.79 In Perlman v Perlman, Gibbs CJ considered the meaning of the words ‘in relation to’ in the Family Law Act 1975 (Cth). He stated:

The words ‘in relation to’ import the existence of a connexion or association between the two proceedings; or in other words that the proceedings in question must bear an appropriate relationship to completed proceedings of the requisite kind.^[100]

The Commissions’ view

2.80 It was proposed in DP 69 that ‘[s]ection 4(1) of the Commonwealth and New South Wales Evidence Acts should be amended to delete the words ‘in relation’ from the phrase ‘in relation to all proceedings’.^[101] The proposal was supported in those submissions which commented on the issue.^[102] The evidentiary rules prescribed in the uniform Evidence Acts have been held incapable of application otherwise than in the course of a hearing of a proceeding in a court.^[103] Hence, there is no ‘proceeding’ outside of the courts identified in s 4 to which the ‘proceedings’ can ‘relate’.

2.81 The better view appears to be that the use of the words ‘in relation’ in s 4(1) of the Evidence Acts of the Commonwealth, New South Wales and Norfolk Island is an example of ‘verbosity in prepositions’.^[104] For a similar reason, the words ‘in relation’ should also be deleted from ss 4(5), (5A) and 5 of the Evidence Act 1995 (Cth).

Section 11—General powers of a court

2.82 Section 11 of the uniform Evidence Acts provides:

(1) The power of a court to control the conduct of a proceeding is not affected by this Act, except so far as this Act provides otherwise expressly or by necessary intendment.

(2) In particular, the powers of a court with respect to abuse of process in a proceeding are not affected.

2.83 Section 11(1) assumes that the general power of a court to control the conduct of proceedings before it is found elsewhere—either in legislation or at common law. This power is preserved unless the Act provides otherwise, expressly or by necessary intendment. Section 11(2) preserves the general power of a court to control an abuse of process in a proceeding. ^[105]

2.84 What is not clear is the relationship between subsections 11(1) and (2). Does s 11(2) provide an absolute rule, or should the test used in s 11(1) be read by implication into s 11(2)? The latter position was accepted by the New South Wales Court of Appeal in Van Der Lee v New South Wales.^[106] In that case, certain defendants to cross-claims in the New South Wales Supreme Court moved for the stay or dismissal of those cross-claims on the ground that they were an abuse of the Court’s process. At issue was whether the primary judge was correct in holding that s 131 of the Evidence Act 1995 (NSW) rendered inadmissible on the motion before the court evidence of settlement negotiations.

2.85 Hodgson JA, with whom Mason P and Santow JA agreed on the point, stated:

I think s 11(2) does have the effect that, when evidence is tendered that could be evidence of an abuse of process, albeit evidence of without prejudice settlement negotiations, the Court may receive that evidence on the voir dire; and then, if that evidence does either by itself or in combination with other evidence establish an abuse of process, the Court may rule the evidence admissible and make appropriate orders to deal with that abuse of process. In my opinion, the powers of a court with respect to abuse of process include its powers to receive evidence, and in my opinion the authorities relied on by the claimants show that, at common law, communications evidencing abuse of process will not be protected by without prejudice privilege. I do not think that s 131 provides otherwise, either expressly or by necessary intendment …^[107]

2.86 The last sentence of the above quotation supports the view that the test used in s 11(1) is to be read by implication into s 11(2).

General obligation to ensure a fair trial

2.87 In IP 28, opinion was sought as to whether s 11(2) should be amended to include a general obligation to ensure a fair trial.^[108] Some practitioners consider that such an amendment is unnecessary.^[109] One senior judicial officer notes that the obligation to ensure a fair trial is an obligation which operates at a higher level than the rules of evidence. For example, there is no rule of evidence that says that judges should not be biased. The judge suggests that it is better to treat the Acts as providing only detailed regulation of particular areas of evidence.^[110]

2.88 In contrast, one submission notes:

Recent legislation, both Commonwealth and State, especially relating to alleged acts of terrorism and national security, have significantly restricted or curtailed traditional rights under the common law. This makes it essential that the courts have a general duty to ensure a fair trial and … s 11(2) should be amended accordingly.^[111]

The Commissions’ view

2.89 No further submissions on this point in response to DP 69 were received. For the reasons stated in DP 69,^[112] the Commissions remain of the view that the obligation to ensure a fair trial is adequately enshrined in the common law and that the inclusion of such an obligation in the uniform Evidence Acts would be redundant and potentially counterproductive. Hence, the Commissions do not consider that an amendment to s 11(2) to ensure a fair trial is necessary.

The application of the uniform Evidence Acts in federal jurisdiction

2.90 Except for the few provisions set out in s 5 that apply to proceedings in an Australian court,^[113] the Commonwealth Act applies only to proceedings in an Australian Capital Territory court or a federal court,^[114] except where the federal court is hearing an appeal from a state or Northern Territory court.^[115] Therefore, the Act does not apply to state courts even when such courts are exercising federal jurisdiction.

2.91 However, where a state court is exercising federal jurisdiction in New South Wales or Tasmania, the provisions of the mirror legislation in those states will apply to those proceedings by reason of s 79 of the Judiciary Act 1903 (Cth). Yet both the New South Wales and Tasmanian evidence Acts purport to apply of their own force to proceedings in, respectively, New South Wales and Tasmanian courts when those courts are exercising federal jurisdiction.^[116] To this extent, the legislation is plainly invalid. It is not within the power of a state parliament to make laws governing the exercise of federal jurisdiction, including the exercise of that jurisdiction by the courts of that state.^[117] Indeed, even if it were within power, such state law would be inoperative through constitutional inconsistency with s 79 of the Judiciary Act 1903 (Cth).

2.92 In DP 69, the Commissions proposed that the definition of ‘NSW court’ in the Dictionary to the Evidence Act 1995 (NSW) be amended to delete the parenthetical words ‘including such court exercising federal jurisdiction’. Four submissions addressed this proposal, and all supported the Commissions’ view.^[118] Hence, the Commissions recommend that the New South Wales Act should be amended to reflect this position.

Application of the Evidence Act 1995 (Cth)

2.93 The Evidence Act 1995 (Cth) applies generally to all proceedings in a federal court or an Australian Capital Territory court. However, some provisions of the Act apply to proceedings in all Australian courts, including the courts of the states and territories, whether or not exercising federal jurisdiction.^[119] As has already been noted, the application of certain provisions specified in s 5 of the Act, for example, relating to proof of official records and Commonwealth documents, is extended to cover proceedings in all Australian courts.^[120] Provisions dealing with the full faith and credit to be given to documents properly authenticated;^[121] the swearing of affidavits for use in Australian courts exercising federal jurisdiction or similar jurisdiction;^[122] and the abolition of the privilege against self-incrimination for bodies corporate^[123] also apply to proceedings in all Australian courts. Reliance is placed on Commonwealth powers under the Australian Constitution that clearly support a wider application, for example, s 51(xxv) (recognition of state laws and judicial proceedings) and s 118 (full faith and credit).

2.94 Section 8(1) of the Evidence Act 1995 (Cth) provides that the Act ‘does not affect the operation of the provisions of any other Act, other than sections 68, 79, 80 and 80A of the Judiciary Act 1903’. The relevant provisions of the Judiciary Act 1903 (Cth) allow state or territory procedural and evidence law to operate in courts exercising federal jurisdiction, where there is no Commonwealth law applicable. These provisions are modified in their operation by the provisions of the Evidence Act 1995 (Cth), noted above, which have extended application to proceedings in all Australian courts. Otherwise, the Evidence Act 1995 (Cth) does not affect procedural or evidence law in state or territory courts.

2.95 It has been suggested that one way to achieve greater uniformity in Australian evidence laws is to extend the operation of the Evidence Act 1995 (Cth) to all Australian courts exercising federal jurisdiction. In ALRC 38, the ALRC noted the possibility of extending the application of Commonwealth evidence legislation to state courts exercising federal jurisdiction, but considered that its Terms of Reference did not extend to this question.^[124]

2.96 There are fundamental policy questions about whether or to what extent the Commonwealth should attempt to prescribe the manner in which state courts exercise federal jurisdiction. One view is that the Commonwealth should accept state courts as it finds them. This derives from the idea that state courts provide a service to the Australian government when they exercise federal jurisdiction, albeit one that has an express constitutional foundation. An alternative view is that it is legitimate and desirable for the Commonwealth to seek to ensure that federal jurisdiction is exercised uniformly in all Australian courts, whether they be federal or state, and not only that it is uniform, but that federal jurisdiction is exercised effectively and efficiently.^[125]

2.97 In ALRC 38, the Commission noted that there would be difficulties, in the absence of similar state evidence laws, in the trial in state courts of persons charged with both federal and state offences.^[126] Some of the difficulties that would arise if state courts were required to switch between state and federal procedures according to the nature of the jurisdiction they exercised were highlighted in the ALRC’s 2001 Report, The Judicial Power of the Commonwealth: A Review of the Judiciary Act 1903 and Related Legislation (ALRC 92).^[127]

2.98 These difficulties include that: many disputes raise a combination of state and federal issues, the relative importance of which may change significantly during the course of litigation; emphasising the nature of the jurisdiction exercised by a court may lend disproportionate weight to the procedural aspects of a case; the determination of whether a matter lies within state or federal jurisdiction may be highly technical and ultimately peripheral to settling the substantive dispute between the parties; there is a degree of unpredictability as to when a matter becomes federal in character; and there may be legal difficulties in determining the scope of federal jurisdiction where, for example, a federal claim is allied to a common law claim and the accrued jurisdiction of a federal court is consequently invoked.^[128]

2.99 Such difficulties were a major factor contributing to the view, expressed in ALRC 92, that there should be no general policy of extending federal law, including matters of practice and procedure, to all courts exercising federal jurisdiction.^[129]

Submissions and consultations

2.100 Opinion was sought as to whether the application of the Evidence Act 1995 (Cth) should be extended to all proceedings in all Australian courts exercising federal jurisdiction.^[130] While not unanimous,^[131] the general consensus is that such an amendment is undesirable.^[132] It is suggested that such an extension may give rise to jurisdictional arguments that complicate and protract litigation,^[133] result in the possibility that two evidentiary regimes might apply in cases where state and federal matters are heard together,^[134] and create uncertainty as to the scope of ‘federal jurisdiction’, the resolution of which may result in complex collateral issues being raised in the litigation.

2.101 For example, in relation to criminal prosecutions, the Commonwealth Director of Public Prosecutions raised the following concern:

An issue was raised [in the Discussion Paper] concerning the possible extension of the application of the Commonwealth Evidence Act to proceedings in all Australian courts exercising federal jurisdiction. This measure would ensure uniformity in prosecuting Commonwealth offences. However, without State and Territory laws being in a similar form as part of a unified scheme, practical difficulties would arise in prosecuting. For example, joint trials of offences against Commonwealth and State/Territory law would not be feasible as it would not be possible for two sets of evidence rules to apply in the one trial for both State and Commonwealth offences. It would be necessary to avoid joint trials with the added cost and inconvenience where the alleged offences stem from related conduct. Over the last 5 years, there have been over 400 defendants (approximately 2%) prosecuted by the CDPP on both Commonwealth and State/Territory charges.^[135]

The Commissions’ view

2.102 The best path to uniformity is through the participation of all states and territories in the uniform Evidence Acts scheme, rather than by mandating the application of the Evidence Act 1995 (Cth) to all proceedings in all Australian courts exercising federal jurisdiction. The implementation of uniform evidence legislation throughout Australia has received widespread, although not unanimous,^[136] support.^[137]

2.103 In addition to the problems identified in the submissions and consultations, with which the Commissions agree, it is unlikely that such an extension would be workable. To apply properly the provisions of the uniform Evidence Acts, judicial officers and practitioners must be familiar with both the Acts’ provisions and the policy underlying the Acts. Such an understanding is gained through instruction, informed analysis and exposure on a regular basis to the Acts’ provisions. Given the movement towards uniformity outlined in Chapter 1, mandating the application of the Evidence Act 1995 (Cth) to all proceedings in all Australian courts exercising federal jurisdiction is currently