Australian Uniform Evidence Principles and Context - (Chapter 1 Introduction) PDF

Preview

Summary

evidence Law Materials, textbook chapters, 2,3,4 and study program...

Description

Chapter 1 Introduction

Copyright © 2019. LexisNexis Butterworths. All rights reserved.

The Law of Evidence 1.1

The law of evidence refers, broadly speaking, to the regulation of information by which facts may be proved in litigation. The importance of the law of evidence derives from the fact that it is a cornerstone of the adversarial system adopted in common law countries such as Australia. It should be noted that other countries and other legal systems (notably in Asia, Europe and South America) do not have a restrictive evidence regime and admit almost all available evidence, subjecting it to a broad test of weight rather than excluding it altogether from consideration by the fact finder.1 The same is true, to a lesser extent, in international criminal courts and tribunals, such as the International Criminal Court.2

1.2

An understanding of what evidence is admissible in proceedings, and what evidence is not, is obviously fundamental to the proper and efficient conduct of litigation. Such an understanding must necessarily begin with an appreciation of whether or not a particular piece of evidence is relevant. If the conclusion is reached that it is, attention must then turn to its form. If its form is admissible, consideration then turns to the question of whether it should nevertheless be excluded. If, however, the evidence is subject to an exclusionary rule, then the question becomes whether, in the circumstances, any applicable exclusionary rule attracts an exception or discretion that bears upon the ultimate admission of the evidence.

1.3

At the heart of the law of evidence is the proposition that it should facilitate the finder of fact in engaging in a rational reasoning process.3 It is hardly controversial then, that the fundamental premise for the admissibility of evidence is that it is capable of rationally affecting the probability of the existence of a fact in issue in the proceeding.4 That rational effect must in some material way lead the fact

1. 2. 3. 4.

See, eg, C van den Wyngaert (ed), Criminal Procedure Systems in the European Community, Butterworths,1993. G Boas et al, International Criminal Law Practitioner Library: International Criminal Procedure, Cambridge University Press, 2011, vol3, ch9. See, eg, W Twining, ‘The Rationalist Tradition of Evidence Scholarship’, in Rethinking Evidence: Exploratory Essays, Basil Blackwell, 1990, pp32–82. Section 55 of the uniform evidence legislation. See, eg, reference in Aytugrul v The Queen (2012) 247 CLR 170 at [40]; Smith v The Queen (2001) 206 CLR 650 at [7] (GleesonCJ, Gaudron, Gummow and HayneJJ).

1 Boas, Gideon, et al. Australian Uniform Evidence : Principles and Context, LexisNexis Butterworths, 2019. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/mqu/detail.action?docID=6284465. Created from mqu on 2021-08-12 02:00:14.

1.3

Australian Uniform Evidence Law: Principles and Context

finder to resolve the ultimate issues in the proceeding — the elements of the offence in a criminal proceeding and the elements of a cause of action in a civil proceeding. HayneJ quoted WM Best in BBH v The Queen:5 Of all rules of evidence, the most universal and the most obvious is this — that the evidence adduced should be alike directed and confined to the matters which are in dispute, or form the subject of investigation … [A]nything which is neither directly nor indirectly relevant to those matters, ought at once to be put aside, as beyond the jurisdiction of the tribunal, as tending to distract its attention and to waste its time.

Copyright © 2019. LexisNexis Butterworths. All rights reserved.

It is not possible to describe what will constitute rational (as opposed to irrational) fact finding in any comprehensive way. Many examples will appear in the substantive chapters of this book. One example often cited concerned a jury’s attempt to ‘contact’ a deceased victim in a murder case to determine the identity of the murderer.6 Clearly such conduct could not constitute a rational approach to determining the guilt or otherwise of the defendant, and a new trial had to be ordered. A less dramatic example can be seen in the exclusion by the courts of evidence constituting a ‘danger of unfair prejudice’, such as particularly graphic photographs depicting violence, which might (in the words of the Australian Law Reform Commission) ‘arouse a sense of horror, provoke an instinct to punish, or trigger other mainsprings of human action [that] may cause the fact-finder to base his decision on something other than the established propositions of the case’.7 1.4

In each Australian state and territory, and in the Commonwealth jurisdiction, there is a body of law that determines the admissibility of evidence in courts and tribunals. Some jurisdictions are more dependent for these laws on legislation than others. Even in jurisdictions where there is no comprehensive Evidence Act in operation, miscellaneous pieces of legislation interact with common law principles developed and applied over hundreds of years. This book is concerned with the law of evidence in Australian courts and tribunals, and in particular in jurisdictions that apply the uniform evidence legislation — meaning Acts of Parliament that incorporate more or less precisely the comprehensive Evidence Act passed by the Commonwealth in 1995.

1.5

For more than 200 years, issues surrounding the law of evidence in Australia were resolved according to the application of common law principles derived from, and developed in, the United Kingdom. Statutory intervention was limited to enactments such as the Evidence Act 1905 (Cth), the Evidence Act1898 (NSW)

5. 6. 7.

(2012) 245 CLR 499 at [64], citing WM Best, A Treatise on the Principles of Evidence, 2nd ed, London, 1854, p319 §245. Re Young [1995] QB 324. Australian Law Reform Commission (ALRC), Evidence (Interim Report, 1985) vol 1, at [644], referring to the now s137 of the uniform evidence legislation.

2 Boas, Gideon, et al. Australian Uniform Evidence : Principles and Context, LexisNexis Butterworths, 2019. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/mqu/detail.action?docID=6284465. Created from mqu on 2021-08-12 02:00:14.

1.10

Introduction

Copyright © 2019. LexisNexis Butterworths. All rights reserved.

and the Evidence (Miscellaneous Provisions) Act 1958 (Vic). Those enactments addressed discrete issues but did not purport to cover the field. 1.6

In 1979, the Commonwealth Attorney-General referred to the Australian LawReform Commission (ALRC)8 the task of undertaking a comprehensive review of the law of evidence ‘with a view to producing a wholly comprehensive law of evidence based on concepts appropriate to current conditions and anticipated requirements’.9 The ARLC was also referred the task of drafting a Uniform Evidence Act with a view to applying the same law of evidence in courts of the Commonwealth and the territories.

1.7

In 1995, the Commonwealth enacted the Evidence Act 1995 (Cth), the first Australian jurisdiction to do so. The content of the Commonwealth Act very closely reflects recommendations made by the ALRC, making the ALRC reports an important source of information about the intended meaning and application of the legislation. For that reason, courts have often had regard to these reports (in particular Report No2610 and Report No10211), and so this ALRC commentary will feature as an important source, alongside cases and at times secondary source interpretation, in this book.

1.8

The enactment of the Evidence Act 1995 (Cth) was followed by the Evidence Act 1995 (NSW), Evidence Act 2001 (Tas), Evidence Act 2004 (Norfolk Island), Evidence Act 2008 (Vic), Evidence Act 2011 (ACT) and Evidence (National Uniform Evidence Legislation) Act 2011 (NT) — collectively, for the purpose of this book, the ‘uniform evidence legislation’. This leaves the states of Western Australia, Queensland and South Australia outside of the operation of the uniform evidence legislation. It is expected that it is only a matter of time before those states also adopt such legislation.

1.9

The uniform evidence legislation is divided into five chapters, which are further divided into parts and divisions. Chapter1 covers preliminary matters, Ch2 covers ‘Adducing evidence’, Ch3 (the main preoccupation of the legislation) covers the ‘Admissibility of evidence’, Ch4 covers ‘Proof’ and Ch5 covers a myriad of ‘Miscellaneous’ matters.

1.10

The uniform evidence legislation reflects in many ways the common law approach to evidence. For example, the criteria in s 138 to be applied in determining the admissibility of unlawfully obtained evidence are in keeping with those discussed by Stephen and Aickin JJ in the common law case of Bunning v Cross.12

8.

The Law Reform Commission was renamed the Australian Law Reform Commission in 1996; theabbreviation ‘ALRC’ is used throughout this book for both names. 9. ALRC, Reform of Evidence Law (Discussion Paper No16, 1980). 10. ALRC, Evidence (note8). 11. ALRC, Uniform Evidence Law (Report No 102, December 2005). See also ALRC, Review of the Uniform Evidence Acts (Discussion Paper No69, July 2005). 12. (1978) 141 CLR 54 at 78–81.

3 Boas, Gideon, et al. Australian Uniform Evidence : Principles and Context, LexisNexis Butterworths, 2019. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/mqu/detail.action?docID=6284465. Created from mqu on 2021-08-12 02:00:14.

Copyright © 2019. LexisNexis Butterworths. All rights reserved.

1.11

Australian Uniform Evidence Law: Principles and Context

1.11

Other provisions, although loosely based on accepted common law principles, departed from such principles in a substantive way. Cases such as Noor Mohamed v The King13 and Driscoll v The Queen14 were authority for the proposition that at common law, a trial judge retained a discretion to reject evidence in a criminal trial on the basis that its probative value was outweighed by its prejudicial effect. Section137 of the uniform evidence legislation, although reflecting that general concept, introduced some important changes. Contrary to the common law position, s137 does not require, in order for such evidence to be excluded, that an affirmative conclusion be reached that the evidence does, in fact, have a prejudicial effect. Rather, the section requires only that the probative value of the evidence is outweighed by the danger of unfair prejudice. Moreover, although s137 reflects common law concepts, its provisions do not involve the exercise of any discretion at all. Rather, they mandate the exclusion of evidence if the statutory test is met.

1.12

Yet other provisions embody a more radical departure from the common law, and courts (most importantly the High Court) have increasingly distinguished the specific provisions regulating the admissibility of evidence from their common law predecessors or counterparts. For example, under the common law, evidence admitted for a non-hearsay purpose (ie, for a purpose other than to prove the truth of the content of a representation made out of court) could not then be used for its hearsay purpose,15 creating at times contorted reasoning processes for a jury to engage in when determining how to use certain evidence. Section60 of the uniform evidence legislation now broadly provides that once evidence is admitted for a non-hearsay purpose, it may also be used for its hearsay purpose.This is a significant departure from the common law, and one to which the courts have taken some time to adjust.16

1.13

What should be understood about the approach taken in the uniform evidence legislation is that it provides a more liberal framework for the admission of evidence in litigation.This can be seen, for example, in areas of the legislation addressing the hearsay and opinion evidence rules and in the treatment of privileges and other exclusionary rules of evidence. The approach also aims to incorporate our evolving understanding of human psychology. For instance, the provisions covering character evidence are designed to reflect modern research about consistency of behaviour. Similarly, our understanding of the processes of memory and recall have informed to a large extent provisions dealing with identification evidence.

13. 14. 15. 16.

[1949] AC 182. (1977) 137 CLR 517. See, eg, Walton v The Queen (1989) 166 CLR 283. See, eg, Papakosmos v The Queen (1999) 196 CLR 297, in which the High Court commented that powers to exclude or limit the use of evidence in ss135, 136 and 137 of the Evidence Act 1995 (Cth) should not be invoked in a general fashion so as effectively to reinstate the common law rules and distinctions.

4 Boas, Gideon, et al. Australian Uniform Evidence : Principles and Context, LexisNexis Butterworths, 2019. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/mqu/detail.action?docID=6284465. Created from mqu on 2021-08-12 02:00:14.

1.17

Copyright © 2019. LexisNexis Butterworths. All rights reserved.

Introduction

1.14

A complex web of exclusions and exceptions permeate the uniform evidence legislation, and courts have had to come to terms with a new regime, with newly crafted rules that intersect with, but often do not mirror, the operation of the common law. Indeed, since the introduction of the legislation, the intermediate appellate courts of the states and the High Court of Australia have continued to address the question of the extent to which common law principles have any ongoing role to play. Because of the way in which the jurisprudence has developed, and because different considerations apply to different provisions of the legislation, it is not possible to resolve that question in terms that apply to each and every section. However, after more than 23 years in operation, a strong body of case law has developed in relation to the legislation, from which it is generally clear where, in terms of individual provisions, the common law stops and the legislation takes over.

1.15

The uniform evidence legislation is not a Code of Evidence; it does not purport to cover the field of evidence law entirely. Section9 in the state and territory versions of the legislation provides that it ‘does not affect the operation of a principle or rule of common law or equity in relation to evidence in a proceeding to which this Act applies, except so far as this Act provides otherwise expressly or by necessary intendment’. This is important as it preserves the large body of the common law on evidence to that extent.

1.16

Generally speaking, common law concepts still have some role to play in the interpretation of the majority of the legislative provisions. However, in some cases that is not so. For example, at common law, the possibility of similar fact evidence (coincidence evidence under the legislation) being concocted rendered the evidence inadmissible.17 That approach has been ousted by the uniform evidence legislation.18

1.17

Quite apart from these issues, the interpretation of the legislation has not necessarily been uniform between the intermediate appellate courts of the states. For example, the Court of Appeal in Victoria took the view that a trial judge assessing the probative value of evidence should have regard to its reliability.19 The opposite approach was taken by the Courts of Criminal Appeal in New South Wales and Tasmania, where it was held that except in rare circumstances, a court should not assess the reliability of the evidence, but rather only its potential, if a jury accepted that it was reliable, to affect a fact in issue.20 The difference in approach was resolved by the High Court, in favour of the New South Wales and Tasmanian position, in IMM vThe Queen.21

17. 18. 19. 20. 21.

Hoch v The Queen (1988) 165 CLR 292. Jones v The Queen [2014] NSWCCA 280 at [64]–[75]. See also Rv Ellis (2003) 58 NSWLR 700. Dupas v The Queen (2012) 40 VR 182. R v Shamouil (2006) 66 NSWLR 228; Jv Tasmania (2011) 218 ACrimR 87. (2016) 257 CLR 300.

5 Boas, Gideon, et al. Australian Uniform Evidence : Principles and Context, LexisNexis Butterworths, 2019. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/mqu/detail.action?docID=6284465. Created from mqu on 2021-08-12 02:00:14.

1.18 1.18

Australian Uniform Evidence Law: Principles and Context

The resolution of inconsistent approaches by the courts in different uniform evidence legislation is an ongoing process and such conflicts and their resolution is the subject of consideration where they arise in this book. Therefore, this book addresses the principal provisions of the uniform evidence legislation by reference to the common law principles which preceded them. It also examines the question whether the legislation in its current form has adequately responded to the challenges that were recognised at the time of the initial referral to the ALRC, and what further changes might be necessary in order to address those challenges that remain.

Copyright © 2019. LexisNexis Butterworths. All rights reserved.

The Structure of this Book 1.19

The structure of this book is based around the trial — in other words, it starts with the structure of the trial itself, fundamental aspects of trials, burdens of proof and the order of proceedings. This chapter is followed by consideration of the power of judges to exclude and limit evidence, as well as to issue warnings and provide information to juries. Then follows the adducing of evidence — testamentary, documentary and other or real evidence, witnesses, examination in chief and cross examination. Finally, the book proceeds to the admissibility of evidence where the focus is on the detail of the main exclusionary rules of evidence and their exceptions.

1.20

Each chapter dealing with particular categories of evidence considers first the nature of the evidence under consideration, introducing the framework and significant considerations that arise with respect to that area of evidence. The chapter then considers the background, aims and development of the particular area of evidence law, including the common law that preceded the uniform evidence legislation. It is followed by a substantive section on the current operation of the uniform evidence legislation concerning that area of evidence. Finally, the chapter concludes with a section on results, prospects and reform, drawing out some of the significant issues that arise from the interpretation and application of the rules of evidence considered in the chapter, and highlighting current and prospective issues that the courts are either engaged in or will need to consider or resolve in the future.

1.21

The law is stated as at May 2019.

6 Boas, Gideon, et al. Australian Uniform Evidence : Principles and Context, LexisNexis Butterworths, 2019. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/mqu/detail.action?docID=6284465. Created from mqu on 2021-08-12 02:00:14....