Tabled in Parliament Date:
The law of evidence in Australia has been a mixture of statute, common law and rules of court and has varied, sometimes greatly, from jurisdiction to jurisdiction. For many years, strong arguments have been put forth to make evidence law uniform in all Australian courts.
In 2004, the Commission was asked to review Victoria’s evidence law as part of a move to implement the Uniform Evidence Act (UEA) in Victoria. At the time, the UEA applied to all federal courts and the courts of the ACT, NSW, Tasmania and Norfolk Island, and the Victorian Attorney-General directed the Commission to advise on how to implement the UEA in Victoria.
The Australian Law Reform Commission and the New South Wales Law Reform Commission were already conducting a joint review of the federal and NSW Uniform Evidence Acts and the VLRC joined this review. The three Commissions produced a joint report in 2006 recommending changes to the Act.
In addition to the joint review, the Commission looked at how the Uniform Evidence Act could be implemented in Victoria. Our report, Implementing the Uniform Evidence Act, was also published in 2006.
- Terms of reference received
- Submissions and consultations
- Submissions closed
- Final Report
- Tabled in parliament
What was recommended?
8 February 2006
The introduction of the uniform Evidence Act to Victoria will benefit children and people with a cognitive impairment. It will make it easier for them to give evidence and have it considered by a jury or judge.
Reliability of child witnesses
Current Situation: Children may be seen as suspect witnesses because old-fashioned views saw them as having less reliable powers of observation and memory, as inhabiting make-believe worlds, as egocentric and likely to forget details not related to themselves, and not understanding the difference between truth and lies.
Uniform Evidence Act: is based on research that shows children’s ability to discern a lie from the truth develops early and that children are no more likely to lie than adults. It is also based on the presumption that all witnesses are capable of giving evidence unless otherwise proven.
Understanding of the oath
Current Situation: Judges may question witnesses about their understanding of oaths or the difference between truth and lies before allowing them to give evidence.
Uniform Evidence Act: Is based on the presumption that all witnesses are capable of giving evidence unless otherwise proven. The joint commissions review has recommended that judges must decide whether a witness can understand a question and give an intelligible answer and judges will be able to call in expert evidence to help them decide this. Sworn witnesses will also have to show an understanding of their obligation to tell the truth.
Expert evidence on child abuse
Current Situation: Under common law, courts are reluctant to hear expert evidence about how children typically behave after experiencing abuse because the traditional belief has been that this is common knowledge. Research has shown this to be incorrect.
Uniform Evidence Act: Allows the use of expert evidence about children’s behaviour and development in child abuse cases.
Warnings to juries
Current Situation: Common law requires judges to warn juries that it is dangerous to convict someone on the uncorroborated evidence of a child. Victoria has legislated against this practice but judges are still giving inappropriate warnings.
Uniform Evidence Act: The uniform Act prohibits judges from giving such warnings. The joint commission review has recommended that there should be evidence about the unreliability of a particular child’s evidence before a warning is given and that age alone should not be a basis for giving a warning.
8 February 2006
Current Situation: In Victoria, husbands and wives can apply to be excused from giving evidence against their spouse. Judges must balance the need for the evidence and the danger of harming an intimate relationship when they compel a witness to give evidence. Same-sex couples and domestic partners cannot apply to be excused and may therefore be compelled without consideration of the danger of harming their relationship.
Uniform Evidence Act: Same-sex and de facto couples will be treated the same as married couples.
Current Situation: The current law only protects confidential communications between clients and their lawyers, and in civil proceedings confidential communications between doctors and their patient. Uniform Evidence Act: in addition to preserving client legal privilege, the joint commission review has recommended judges have the discretion to protect other professional relationships where there is an obligation of confidentiality, such as between a doctor and patient or a journalist and a source. The importance of the court receiving the evidence would have to outweigh the likely harm which may be caused to the person who has confided in the professional. This is already the situation in NSW and the only case to be heard under this provision involving a journalist trying to protect a source found that the public interest in hearing the evidence was more important than protecting the journalist’s source. (NRMA v John Fairfax Publications ).
Current Situation: Evidence of what someone was told by another person is not admissible to prove what happened under the hearsay rule. This rule is subject to complicated exceptions in Victoria.
Uniform Evidence Act: The uniform Act provides rules about the admissibility of hearsay evidence which are based on factors affecting reliability and the ability to test the evidence by cross-examination. The rules are also designed to overcome the need for complicated technical directions to be given to juries about how they may use hearsay evidence.