Evidence Joint Review - Recommendations

The Uniform Evidence Acts

2–1 To promote and maintain uniformity, the Standing Committee of Attorneys-General (SCAG) should adopt an Intergovernmental Agreement which provides that, subject to limited exceptions, any proposed changes to the uniform Evidence Acts must be approved by SCAG. The agreement should provide for a procedure whereby the party proposing a change requiring approval must give notice in writing to the other parties to the agreement, and the proposed amendment must be considered and approved by SCAG before being implemented.

2–2 All Australian jurisdictions should work towards harmonisation of provisions relating to issues such as children’s evidence and offence-specific evidentiary provisions.

2–3 In order to ensure the maintenance of harmonisation over time and the general effectiveness of the uniform Evidence Acts, Australian governments should consider initiating a joint review of the uniform Evidence Acts within 10 years from the tabling of this Report.

2–4 Section 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’. The words ‘in relation’ should also be deleted from sections 4(5), (5A) and 5 of the Commonwealth Evidence Act.

2–5 The definition of ‘NSW court’ in the Dictionary to the Evidence Act 1995 (NSW) should be amended to delete the parenthetical words ‘including such a court exercising federal jurisdiction’.

Understanding the Uniform Evidence Acts

3–1 The National Judicial College, the Judicial College of Victoria, the Judicial Commission of New South Wales and the state and territory law societies and bar associations should consider conducting educational programs about the policy underlying the approach of the uniform Evidence Acts to admissibility of evidence. The Inquiry also identified the following areas as warranting consideration:

  • improper questioning;
  • the admissibility of evidence of expert opinion;
  • the cognitive and behavioural development of children and the implications of this for the reliability of the evidence of child witnesses; and
  • the nature of sexual assault, including the context in which sexual offences typically occur, and the emotional, psychological and social impact of sexual assault.

Competence and Compellability

4–1 Section 13(2), (3) and (4) of the uniform Evidence Acts should be amended or replaced to bring about the following:

  • a person not competent to give sworn evidence is competent to give unsworn evidence but may not do so unless the court informs the person of the importance of telling the truth;
  • all witnesses must also satisfy a test of general competence in s 13(4);
  • the test of general competence to give both sworn and unsworn evidence in s 13(4) should provide that if for any reason, including physical disability, a person lacks the capacity to understand, or give an answer that can be understood to, a question about a fact and that incapacity cannot be overcome, the person is not competent to give evidence about that fact;
  • the inclusion of a note to s 13(1) that ‘the person may be competent to give unsworn evidence’;
  • the inclusion of a note to s 13(4) that ‘the person may be competent to give evidence about other facts’; and
  • the inclusion of a note to s 13(4) cross-referencing to s 31.

4–2 Section 13(7) of the uniform Evidence Acts should be amended to make it clear that in informing itself as to the competence of a witness, the court is entitled to draw on expert opinion.

4–3 The wording of ss 14 and 61 of the uniform Evidence Acts should be amended to bring them in line with the proposed changes to s 13(4).

4–4 The provisions of the Evidence Act 1995 (Cth) and the Evidence Act 1995 (NSW) should be amended to eliminate the term ‘de facto spouse’ (including the definition) and to replace it with the term ‘de facto partner’.

4–5 The Evidence Act 1995 (Cth) should be amended to provide a definition of ‘de facto partner’ in the following terms:

‘de facto partner’ means a person in a relationship as a couple with another person to whom he or she is not married.

4–6 The Evidence Act 1995 (Cth) should be amended to provide that for the purpose of determining whether a relationship between 2 persons is a relationship as a couple, the matters that the court may take into account include:

(a) the duration of the relationship;

(b) the extent to which the persons have a mutual commitment to a shared life; and

(c) the reputation and public aspects of the relationship.

Examination and Cross-Examination of Witnesses

5–1 Section 29 of the uniform Evidence Acts should be amended to remove the requirement that a party must apply to the court for a direction that the witness may give evidence in narrative form. It should provide that a court may, on its own motion or on application, direct that the witness give evidence wholly or partly in narrative form, and the way in which narrative evidence may be given.

5–2 The ALRC and NSWLRC recommend that section 41 of the uniform Evidence Acts should be amended to adopt the terms of s 275A of the Criminal Procedure Act 1986 (NSW). This section should apply both to civil and criminal proceedings.

Documentary Evidence

6–1 Section 50(1)(a) of the uniform Evidence Acts should be amended by removing the words ‘before the hearing concerned’.

6–2 Section 71 of the uniform Evidence Acts should be amended to replace the words ‘a document recording a message that has been transmitted by electronic mail or by a fax, telegram, lettergram or telex’ with the words ‘an electronic communication’, and to insert as s 71(2) a definition for ‘electronic communication’ identical to that in s 5 of the Electronic Transactions Act 1999 (Cth).

6–3 The uniform Evidence Acts should be amended by the insertion of a new provision in terms equivalent to s 161 facilitating proof of electronic communications. The provision will provide for presumptions in relation to electronic communications and should include presumptions as to the source and destination of the communication.

The Hearsay Rule and Section 60

7–1 The uniform Evidence Acts should be amended to provide expressly that, for the purposes of s 59, in determining whether a person intended to assert the existence of facts contained in a previous representation, the test to be applied should be based on what a person in the position of the maker of the representation can reasonably be supposed to have intended; and the court may take into account the circumstances in which the representation was made.

7–2 The uniform Evidence Acts should be amended 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 evidence is first-hand or more remote hearsay.

The Hearsay Rule — First-hand and More Remote Hearsay Exceptions

8–1 Section 64(3) of the uniform Evidence Acts should be amended to remove the requirement that, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation.

8–2 The uniform Evidence Acts should be amended to provide that a person is taken not to be available to give evidence about a fact if the person is mentally or physically unable to give evidence about the fact and that inability cannot reasonably be overcome.

8–3 Section 65(2)(d) of the uniform Evidence Acts should be amended to require that the representation be made against the interests of the person who made it at the time it was made and in circumstances that make it likely that the representation is reliable.

8–4 The uniform Evidence Acts should be amended to make it clear that, for the purposes of s 66(2), whether a memory is ‘fresh’ is to be determined by reference to factors in addition to the temporal relationship between the occurrence of the asserted fact and the making of the representation. These factors may include the nature of the event concerned, and the age and health of the witness.

8–5 Section 72 of the uniform Evidence Acts dealing with contemporaneous statements about a person’s health, feelings, sensations, intention, knowledge or state of mind should be repealed and re-enacted in identical form in Division 2 of Part 3.2 of the Acts.

The Opinion Rule and its Exceptions

9–1 Section 79 of the uniform Evidence Acts should be amended to provide that, to avoid doubt, the provision applies to evidence of a person who has specialised knowledge of child development and behaviour (including specialised knowledge of the effect of sexual abuse on children and of their behaviour during and following the abuse), being evidence in relation to either or both of the following:

(a) the development and behaviour of children generally;

(b) the development and behaviour of children who have been the victims of sexual offences, or offences similar to sexual offences.

Admissions

10–1 Section 85(1) of the uniform Evidence Acts should be amended to provide that the section applies only to evidence of an admission made by a defendant: (a) to or in the presence of an investigating official who was at the time performing functions in connection with the investigation of the commission or possible commission of an offence; or (b) as a result of an act of another person who is capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued. A consequential amendment should be made to s 89(1) to incorporate (a) above.

10–2 To ensure that evidence of admissions in criminal proceedings that are not first-hand are excluded from the ambit of s 60, s 82 of the uniform Evidence Acts should be amended to provide that s 60 does not apply in a criminal proceeding to evidence of an admission.

Tendency and Coincidence Evidence

11–1 Section 98 (1) of the uniform Evidence Acts should be amended to provide that: evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events and any similarities in the circumstances surrounding them, it is improbable that the events occurred coincidentally unless the party adducing the evidence gives reasonable notice in writing to each other party of the party’s intention to adduce the evidence; and the court thinks that the evidence, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, has significant probative value.

11–2 To clarify the effect of the provision, a note should be added to s 98 of the uniform Evidence Acts stating that the events that may be considered include an event which is the subject of the proceeding.

11–3 Section 97 of the uniform Evidence Acts should be amended to replace the word ‘if’ with ‘unless’, and to replace the word ‘or’ with ‘and’ and to make any necessary consequential amendments. If Recommendation 11–1 is not taken up, a corresponding amendment should be made to s 98.

The Credibility Rule and its Exceptions

12–1 The uniform Evidence Acts should be amended to include a definition of the evidence to which the credibility rule applies and to make consequential amendments to ss 102, 104 and 108A to ensure that the provisions of Part 3.7 apply to evidence:

  • relevant only to credibility; and
  • relevant to credibility and relevant for some other purpose, but not admissible or capable of being used for that other purpose because of a provision of Parts 3.2 to Parts 3.6 inclusive.

12–2 Section 103(1) of the uniform Evidence Acts should be amended to read as follows: ‘The credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence could substantially affect the assessment of the credibility of the witness’.

12–3 Section 104(4)(a) of the uniform Evidence Acts should be deleted from s 104(4) to remove the overlap between s 104(4)(a) and Part 3.8.

12–4 For consistency in drafting, s 112 of the uniform Evidence Acts should be amended by substituting ‘A defendant must not be cross-examined’ for ‘A defendant is not to be cross-examined’.

12–5 Section 106 of the uniform Evidence Acts should be amended to enable evidence to be adduced with the leave of the court to rebut denials and non-admissions in cross-examination. Leave should not be required to adduce evidence of the kind presently identified in paragraphs (a) to (e) of s106.

12–6 Section 108A of the uniform Evidence Acts should be amended to provide that, where the defendant in a criminal trial has not or will not be called to give evidence and evidence of a previous representation of the defendant has been admitted, the same restrictions should apply to evidence relevant to the credibility of a defendant as apply under s 104 when a defendant gives evidence at trial.

12–7 The uniform Evidence Acts should be amended to include a new exception to the credibility rule which provides that, if a person has specialised knowledge based on the person’s training, study or experience, the credibility rule does not apply to evidence given by the person, being evidence of an opinion of that person that: (a) is wholly or substantially based on that knowledge; and (b) could substantially affect the assessment of the credibility of a witness; and (c) is adduced with the court’s leave. The Acts should also include a provision clarifying that the evidence to which the exception applies includes evidence about child development and behaviour (including the effect of sexual abuse).

12–8 Sections 25, 105, 108(2) and 110(4) of the Evidence Act 1995 (Cth) should be repealed to reflect the fact that there is no longer provision under Australian law for unsworn statements to be made by a defendant in a criminal trial.

Privileges: Extension to Pre-Trial Matters and Client Legal Privilege

14–1 The client legal privilege provisions of the uniform Evidence Acts should apply to any compulsory process for disclosure, such as pre-trial discovery and the production of documents in response to a subpoena and in non-curial contexts including search warrants and notices to produce documents, as well as court proceedings.

14–2 Section 117(1)(a) of the uniform Evidence Acts should be amended to allow that a ‘client’ of a lawyer be defined as a person who engages a lawyer to provide professional legal services, or who employs a lawyer for that purpose, including under a contract of service (for example, as in-house counsel).

14–3 The definition of a ‘lawyer’ in the Dictionary of the uniform Evidence Acts should be amended to provide that a lawyer is a person who is admitted to the legal profession in an Australian jurisdiction or in any other jurisdiction.

14–4 Section 118(c) of the uniform Evidence Acts should be amended to replace the words ‘the client or a lawyer’ with ‘the client, a lawyer or another person’.

14–5 Section 122(2) of the uniform Evidence Acts should be amended to provide that evidence may be adduced where a client or party has acted in a manner inconsistent with the maintenance of the privilege. The existing provisions should remain in a form appropriate to give guidance as to what acts are or are not acts inconsistent with the maintenance of the privilege.

14–6 If Recommendation 14–1 is adopted, s 123 of the uniform Evidence Acts should remain applicable only to the adducing of evidence at trial by an accused in a criminal proceeding.

Privilege: Other Privileges

15–1 The uniform Evidence Acts should be amended to provide for a professional confidential relationship privilege. Such a privilege should be qualified and allow the court to balance the likely harm to the confider if the evidence is adduced and the desirability of the evidence being given. The confidential relationship privilege available under Part 3.10, Division 1A of the Evidence Act 1995 (NSW) should therefore be adopted under Part 3.10 of the Evidence Act 1995 (Cth).

15–2 If Recommendation 15–1 is adopted, Part 3.10, Division 1A of the Evidence Act 1995 (Cth) should include that in family law proceedings concerning children, the best interests of the child should be a paramount consideration and that, where a child is the protected confider, a representative of the child may make the claim for privilege on behalf of the child.

15–3 The professional confidential relationship privilege should apply to any compulsory process for disclosure, such as pre-trial discovery and the production of documents in response to a subpoena and in non-curial contexts including search warrants and notices to produce documents, as well as court proceedings.

15–4 Part 3.10 of the Evidence Act 1995 (Cth) and Part 3.10, Division 1B of the Evidence Act 1995 (NSW) should be amended to include a sexual assault communications privilege based on the wording of Division 2 of Part 5, Chapter 6 of the Criminal Procedure Act 1986 (NSW) applicable in both civil and criminal proceedings. The amendment should include a general discretion privilege and an absolute privilege in preliminary criminal proceedings.

15–5 If Recommendation 15–4 is accepted, Division 2 of Part 5 of Chapter 6 of the Criminal Procedure Act 1986 (NSW) should be repealed.

15–6 The sexual assault communications privilege should apply to any compulsory process for disclosure, such as pre-trial discovery and the production of documents in response to a subpoena and in non-curial contexts including search warrants and notices to produce documents, as well as court proceedings.

15–7 Section 128 of the uniform Evidence Acts should apply where a witness objects to giving evidence either to a particular question, or a class of questions, on the grounds that the evidence may tend to prove that the witness has committed an offence against or arising under an Australian law or a law of a foreign country or is liable to a civil penalty under such law. The section should provide that:

(a) the court is to determine whether or not that claim is based on reasonable grounds;

(b) if the court is so satisfied, the court must inform the witness that the witness may choose to give the evidence or the court will consider whether the interests of justice require that the evidence be given;

(c) the court may require that the witness give the evidence if the interests of justice so require, but must not do so if the evidence would tend to prove that the witness has committed an offence against or arising under a law of a foreign country or is liable to a civil penalty under a law of a foreign country; and

(d) if the evidence is given, either voluntarily or under compulsion, a certificate is to be granted preventing the use of that evidence against the person.

15–8 Section 128(7) of the uniform Evidence Acts should be amended to clarify that a ‘proceeding’ under that section does not include a retrial for the same offence or an offence arising out of the same circumstances.

15–9 Section 128(7) of the Evidence Act 1995 (NSW) should be amended to provide that for the purposes of that provision a ‘NSW court’ means ‘any New South Wales court or any person or body authorised by a New South Wales law, or by consent of the parties, to hear, receive and examine evidence’.

15–10 The uniform Evidence Acts should be amended to provide that the privilege against self-incrimination cannot be claimed in respect of orders made in a civil proceeding requiring a person to disclose information about assets or other information (or to attend court to testify regarding assets or other information) or to permit premises to be searched. However, it should be provided that evidence obtained in compliance with such orders cannot be used against the person in a criminal or civil penalty proceeding against the person, where the court finds that the evidence might tend to incriminate the person, or make the person liable to a civil penalty. This use immunity should only apply to documents or information created pursuant to the court order, and not to a pre-existing document or thing.

15–11 Section 130 of the uniform Evidence Acts should apply to any compulsory process for disclosure, such as pre-trial discovery and the production of documents in response to a subpoena and in non-curial contexts including search warrants and notices to produce documents, as well as court proceedings.

Discretionary and Mandatory Exclusions

16–1 In order to reflect the fact that s 137 is not a discretion to exclude evidence but a mandatory exclusion, the heading at Part 3.11 ‘Discretions to exclude evidence’ of the uniform Evidence Acts should be amended to read ‘Discretionary and mandatory exclusions’.

16–2 The uniform Evidence Acts should be amended to 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.

Comments, Warnings and Directions to the Jury

18–1 The Standing Committee of Attorneys-Generalshould initiate an inquiry into the operation of the jury system, including such matters as eligibility, empanelment, warnings and directions to juries.

18–2 The uniform Evidence Acts should be amended to include provisions dealing with warnings in respect of children’s evidence similar to those contained in ss 165(6), 165A and 165B of the Evidence Act 1995 (NSW). Section 165B should be amended to make it clear that a trial judge is not to give a warning about the reliability of the evidence of a child solely on account of the age of the child.

18–3 The ALRC and the VLRC recommend that the uniform Evidence Acts be amended to provide that where a request is made by a party, and the court is satisfied that the party has suffered significant forensic disadvantage as a result of delay, an appropriate warning may be given.

The provision should make it clear that the mere passage of time does not necessarily establish forensic disadvantage and that a judge may refuse to give a warning if there are good reasons for doing so.

No particular form of words need be used in giving the warning. However, in warning the jury, the judge should not suggest that it is ‘dangerous to convict’ because of any demonstrated forensic disadvantage.

Aboriginal and Torres Strait Islander Traditional Laws and Customs

19–1 The uniform Evidence Acts should be amended to provide an exception to the hearsay rule for evidence relevant to Aboriginal or Torres Strait Islander traditional laws and customs.

19–2 The uniform Evidence Acts should be amended to provide an exception to the opinion evidence rule for evidence of an opinion expressed by a member of an Aboriginal or Torres Strait Islander group about the existence or non-existence, or the content, of the traditional laws and customs of the group.

19–3 The definition of ‘traditional laws and customs’ in the uniform Evidence Acts should include ‘the customary laws, traditions, customs, observances, practices, knowledge and beliefs of a group (including a kinship group) of Aboriginal or Torres Strait Islander persons’.

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