Bills Digest no. 140 2007–08
Evidence Amendment Bill 2008
WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments. This Digest does not have
any official legal status. Other sources should be consulted to determine
the subsequent official status of the Bill.
CONTENTS
Passage history
Purpose
Background
Financial implications
Main provisions
Concluding comments
Contact officer & copyright details
Passage history
Evidence
Amendment Bill 2008
Date introduced:
28 May 2008
House:
House of Representatives
Portfolio:
Attorney-General
Commencement:
Schedules 1 and 2 commence the day after Royal Assent.
Schedule 3 commences 12 months from the day of Royal Assent or earlier
by Proclamation.[1]
Links: The relevant
links to the Bill, Explanatory Memorandum and second reading speech
can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/. When Bills
have been passed they can be found at ComLaw, which is at http://www.comlaw.gov.au/.
This Bill proposes amendments to the
Evidence Act 1995 to implement the majority of the recommendations
made by the Australian Law Reform Commission, NSW Law Reform Commission,
and Victorian Law Reform Commission (the Commissions) as a result of their
inquiry into the uniform Evidence Acts.
Schedule 3 is unrelated to the main purpose of the Bill.
It amends the Amendments Incorporation Act 1905, renaming it the
Acts Publication Act 1905 and providing for certain printed and
electronic versions of Acts to be taken as an accurate record of those
Acts.
At
the outset, it should be noted that the rules of evidence are detailed
and complex, and have been developed by the legal fraternity over many
centuries -- both within the common law, and now within a statutory framework.
Given this history and the importance of the issues, this Digest is lengthy,
having had to provide a brief exegesis of various rules of evidence.
The rules of evidence applied in Australian courts serve
a number of functions— they regulate what material a court may consider
in determining factual issues; how that material is to be presented in
the court; and how the court actually goes about the task of deciding
the factual issues on the basis of evidence. They are a central part of
procedural justice.[2]
Until the enactment of the Evidence Act 1995 (Cth)
and its New South Wales counterpart, the rules of evidence were largely
part of the common law, the product of long historical development by
the courts themselves, with only limited statutory modification. As a
result they reflected a variety of principles and values; they lacked
coherence and structure; and they were complex, technical and difficult
to find. Substantial reform was long overdue.
In 1979 the federal Government gave a reference to the
Australian Law Reform Commission (ALRC) to inquire into the possibility
of comprehensive rationalisation and reform of the law of evidence.
The ALRC produced a series of research reports and discussion
papers; an Interim Report, Evidence (ALRC 26)
including draft legislation in 1985; and a final report, Evidence (ALRC
38) in 1987, which also contained draft legislation.
In 1991, the Commonwealth and New South Wales governments
each introduced legislation substantially based on—but differing in some
respects from—the ALRC’s draft legislation. In the same year, the Standing
Committee of Attorneys-General gave in-principle support to a uniform
legislative scheme throughout Australia.
The Commonwealth and New South Wales parliaments each
passed an Evidence Bill in 1993 to come into effect from 1 January 1995.
The Acts were in most respects identical and are often described as the
‘uniform Evidence Acts’.
The Evidence Act 1995 (Cth) applies in federal
courts and, by agreement, in courts in the Australian Capital Territory.
The Evidence Act 1995 (NSW) applies in proceedings, federal or
state, before New South Wales courts and some tribunals.
In 2001, Tasmania passed legislation that essentially
mirrors the Commonwealth and New South Wales Acts, although there are
some differences. In 2004, Norfolk Island passed legislation that essentially
mirrors the Evidence Act 1995 (NSW).
No other state has yet adopted similar legislation, although
there is a strong movement towards the harmonisation of evidence laws
in other states based on the uniform Evidence Act.[3]
In July 2004, the Commonwealth Attorney-General asked the ALRC to examine
the operation of the Evidence
Act 1995 (Cth).
The ALRC was required to work closely with the New South Wales Law Reform
Commission (NSWLRC) and the Victorian Law Reform Commission (VLRC), who were conducting
similar inquiries into the operation of the uniform Evidence Act.
As part of this reference, two consultation papers were released:
The final report, Uniform
Evidence Law (ALRC
102), completed jointly by the ALRC, NSWLRC and VLRC, was submitted
to the Australian, New South Wales and Victorian Attorneys-General on
5 December 2005. It was tabled in the Commonwealth and Victorian parliaments,
and released in NSW, on 8 February 2006. Throughout the Digest, this final
report is referred to as the ‘Report’ and its various recommendations
are described as ‘Recommendation’ followed by the relevant number.
The primary objectives of this inquiry were twofold: to identify and
address any defects in the uniform Evidence Acts; and to maintain and
further the harmonisation of the laws of evidence throughout Australia.
The inquiry concluded that the uniform Evidence Acts were working well,
and that there were no major structural problems with the legislation,
or with the underlying policy of the Acts.
While areas of concern were identified and addressed in the report, the
Commissions concluded that a major overhaul of the uniform Evidence Acts
was neither warranted nor desirable.
The Report contains numerous recommendations with accompanying
model evidence provisions. The model evidence provisions were developed
by a working group of the Standing Committee of Attorneys-General (SCAG)
and endorsed by SCAG in July 2007.
The New South Wales Parliament has already passed legislation
that will implement these provisions.[4] It is understood a number of other states are
preparing legislation to implement the provisions.[5]
The Explanatory Memorandum states that this Bill implements
the majority of the model evidence provisions, but does not include the
provisions implementing a general confidential relationships privilege
or the provisions extending client legal privilege and public interest
immunity to pre-trial proceedings. The rationale for the exclusion is
that the Government is still considering its response to some of the Commissions’
recommendations relating to client legal privilege claims in federal investigations.[6]
The Evidence Act is divided into five Chapters, which
are themselves divided into Parts and Divisions.
- Chapter 1 – Preliminary
- Chapter 2 – Adducing Evidence
- Part 2.1 Witnesses (containing divisions relating to competence
and compellability, oaths and affirmations, examination-in-chief,
cross-examination and re-examination)
- Part 2.2 Documents
- Part 2.3 Other Evidence
- Chapter 3 – Admissibility of Evidence (containing Parts relating to
the relevance rule, various exclusionary rules and discretions to exclude
evidence)
- Chapter 4 – Proof
- Chapter 5 – Miscellaneous
This order is consistent with the intentions of the ALRC
1985 Report that the provisions should follow the order in which evidentiary
issues ordinarily arise in a typical trial, from the moment that the first
witness gets in the witness box to the determination of factual questions
on the admissible evidence by the tribunal of fact (judge or jury) at
the end of the trial.
The Evidence Act is not a restatement in statutory form
of common law and existing statutory rules of evidence. Significant reforms
have been introduced. For example the hearsay rule is substantially modified
in both civil and criminal proceedings and there is reform of the rules
governing the admissibility of documentary evidence including the abolition
of the document rule.[7]
The bulk of the Evidence Act (Chapter 3) is taken up
with the rules relating to the admissibility of evidence. The Act adopts
the same basic structure as the common law for determining the admissibility
of evidence: the test of relevance is the threshold consideration; the
exclusionary rules and their exceptions are then applied and finally,
the residual discretions to exclude on a policy ground are then applied.
To assist in applying the rules of admissibility, the
Evidence Act includes a flow chart immediately preceding section 55.
Explanation of these principles is provided where relevant under the
Main Provisions section of the Digest.[8]
The Explanatory Memorandum states that the Bill will
have no significant financial impact.[9]
The categories of competence and compellability are important
in the laws of evidence as they define who is able to give evidence (i.e.
who is competent), and who can be legally required to give evidence (i.e.
who is compellable). The general principle (enshrined in section 12) is
that everyone is competent to give evidence and may be compelled to do
so. The exceptions to this principle are set out in the subsequent sections
of the Act.
Section 13 provides that certain persons lack the capacity
to give sworn evidence, although they may give unsworn evidence in certain
circumstances. Subsection 13(1) provides the test for giving sworn evidence
is an understanding of the obligation to give truthful evidence. Subsection
13(2) provides a test for competence to give unsworn evidence, which is
to be applied where a witness fails to meet the competence test for sworn
evidence. One of the criteria is that the person understands the difference
between a truth and a lie.
The Commissions’ Report states that recent law reform
work and academic consideration question the formulation of the existing
competence test on the basis that:
- the tests to give sworn and unsworn evidence are too restrictive,
with the risk that evidence of probative value will be excluded
- the appropriateness of the requirement in the competence test to
give unsworn evidence that a person ‘understands the difference between
the truth and a lie’ are questionable
- the tests of competence to give sworn and unsworn evidence are too
similar and pose difficulties for practice application.[10]
The Commissions favoured a more liberal approach to the
laws of competence and concluded that this could be achieved by introducing
a test of general competence to give sworn and unsworn evidence and by
distinguishing better the test of competence to give sworn and unsworn
evidence so that they are sufficiently different.
Item 3 repeals and replaces existing section 13 and
sets out a new test for determining competence to give sworn and unsworn
evidence. It implements Recommendations 4-1 and 4-2. Proposed section
13 provides that all witnesses must satisfy the test of general
competence in subsection 13(1). The revised test provides that a person
is not competent to give sworn or unsworn evidence about
a fact if the person lacks the capacity to understand, or to give an answer
that can be understood, to a question about the fact, and that incapacity
cannot be overcome. Proposed subsection 13(3) provides that a person
is not competent to give sworn evidence if he or she does not have
the capacity to understand that he or she is under an obligation to give
truthful evidence. This is a restatement of existing subsection 13(1).
Proposed subsection 13(5) provides that if a person is not competent
to give sworn evidence, then he or she may be able to give unsworn evidence
providing the court has told the person:
- that it is important to tell the truth
- that he or she should inform the court if asked a question to which
he or she does not know, or cannot remember the answer, and
- that he or she should agree to statements believed to be true and
should not feel pressured into agreeing with any statements that are
believed to be untrue.
Proposed subsection 13(8) provides that in informing
itself of the competence of a witness, the court is entitled to draw on
an expert opinion.
Items 4 and 9 are consequential resulting
from the amendments to section 13.
Items 5 to 8 change the definition of de facto
spouse in two sections of the Evidence Act which
- provide for certain exemptions to witnesses who could otherwise be
compelled to give evidence (section 18) and
- regulate the commentary that can be made on a decision of such witnesses
not to give evidence (section 20).
Currently a defendant’s spouse or de facto spouse, a
parent or a child of the defendant are included in the ‘protected witness’
category.
The changes propose that the current provision’s references
to a ‘de facto spouse’ be broadened to refer to a ‘de facto partner’,
which is in turn defined in the Dictionary.[11]
The definition is quite broad and specifies the criteria that should be
used by the court when determining whether someone qualifies as a de facto
partner (with no necessary emphasis to be made on any one factor):
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) the degree of financial dependence or interdependence,
and any arrangements for financial support, between them;
(d) the ownership, use and acquisition of their property;
(e) the degree of mutual commitment to a shared life;
(f) the care and support of children;
(g) the reputation and public aspects of the relationship.
The definition also specifies in proposed subclause
5 that whether someone is of the same or of opposite sex is irrelevant
to the conclusion, as is the question as to whether either of the people
concerned are legally married to someone else or are in another de facto
relationship.
This definition is unusual in that there is no reference
to exclusivity, usually a factor in establishing a de facto relationship,
and there is also no reference to the factor of a sexual relationship.
To some extent this may be implied in the reference to having a ‘relationship
as a couple’ (proposed subclause 11(2)). In family law a reference
to ‘living as a couple’ is usually determined by looking at a ‘composite
picture’, usually encompassing some reference to a sexual relationship.[12] Relevant factors to be considered include:
- the duration of the relationship;
- the nature and extent of common residence;
- whether or not a sexual relationship exists;
- the degree of financial interdependence or support between the parties;
- the ownership, use, and acquisition of property;
- the care and support of children;
- the performance of household tasks;
- the degree of mutual commitment and support; and the
- reputation and ‘public’ aspects of the relationship.[13]
The definitions used in the Bill which allow, for example,
someone to be married to one individual yet qualify as the de facto partner
of a third party are thus unusual from a broader legal perspective – qualifying
as a de facto spouse generally implies some exclusivity. The definition
is, however, designed to regulate the compellability of a witness’ evidence
and the comments that can be made when such evidence is not given. The
definition does not go to the broader law – they simply stipulate the
criteria to be used in the application of these rules of evidence.
The question of which witnesses may be ‘compellable’,
i.e. legally required to give evidence, is subject to other exceptions.
Defendants are not themselves compellable (an example of the privilege
against self-incrimination). There has been a tradition in English common
law that the spouse is not compellable (although a relatively recent tradition[14]).
The public policy issues behind the exemption are indicated
by the criteria to be used by the decision maker when determining whether
to treat a witness as compellable. The decision maker is required to prioritise
the ‘desirability’ of the evidence being given against
a likelihood that harm would or might be caused (whether
directly or indirectly) to the person, or to the relationship between
the person and the defendant, if the person gives the evidence…[15]
The majority of the ALRC in its 1985 Report offered a
further justification, being:
- The undesirability that the procedures for enforcing the criminal
law should be allowed to disrupt marital and family relationships
to a greater extent than the interests of the community really require.
- The undesirability that the community should make unduly harsh
demands on its members by compelling them, where the general interest
does not require it, to give evidence that will bring punishments
upon those they love, or betray their confidences, or entail economic
or social hardships.[16]
They also pointed out that the consequences of steadfast
refusals to give evidence are difficult for a tribunal to deal with.[17] Finally they argued that there
were dangers in expanding the categories of those who can seek an exemption,
both in terms of the procedural/court costs involved in determining such
applications and because, they said, a too broadly based exemption would
jeopardise an unacceptable amount of relevant evidence.
In general a prosecutor must not comment on the options
taken under section 18,[18]
however section 20 allows various comments to be made in the case of indictable
offences. In such a case the judge or any party (other than the prosecutor)
may comment on a decision taken by a defendant’s spouse, de facto partner
(as proposed), parent or child not to give evidence. The general principle
remains that the comment must not suggest that the decision to not give
evidence showed guilt (although another defendant to the proceeding may
make such a comment[19]).
Item 10 replaces existing subsection 29(2), implementing
Recommendation 5-1 of the Report. Currently, a party must apply to the
court for a witness to be allowed to give evidence in narrative form.
Proposed subsection 29(2) will allow the court on its own
motion or on application, direct that a witness give evidence wholly or
partly in narrative form, rather than question and answer format. The
consequence of this amendment is that the court will have more flexibility
in receiving the best possible evidence. Witnesses such as children and
people with an intellectual disability are likely to be assisted by this
increased flexibility.
Item 13 will repeal existing section 41. The substituted
section 41 will describe the types of questions that must be disallowed.
The changes that affect improper questioning implement
Recommendation 5-2 of the Report and seeks to give greater protection
to vulnerable witnesses where questioning can be harassing, intimidating,
offensive, humiliating or repetitive. It also expands the type of prohibited
questions to those which have no basis other than a stereotype. Proposed
subsection 41(1) defines these parameters of a disallowable question.
Proposed subsection 41(2) will allow the court
to take into account, for the purposes of subsection (1):
- any relevant condition or characteristic of the witness which the
court is, or is made, aware, including age, education, ethnic and cultural
background, gender, language background and skills, level of maturity
and understanding and personality; and
- any mental, intellectual or physical disability of which the court
is, or is made, aware and to which the witness is, or appears to be,
subject; and
- the context in which the question is put, including, the nature of
the proceeding; and, in a criminal proceeding – the nature of the offence
to which the proceeding relates; and, the relationship (if any) between
the witness and any other party to the proceeding.
Proposed subsections 41(3) and (4) note that a
question is not disallowable merely because it challenges the truthfulness
of the witness or the consistency or accuracy of any statement made by
the witness; or the question requires the witness to discuss a subject
that could be considered distasteful to, or private by, the witness. An
objection can be made that the question is a disallowable question. However
the court must consider disallowability even if no objection is raised
(subsection 41(5)).
Proposed section 41 applies to both civil and
criminal proceedings. Proposed subsection 41(6) provides that a
failure by the court to disallow a question under this section will not
affect the admissibility of the witness’s answer. A Note at the end of
the section provides a cross reference to section 195 which prohibits
the publication of disallowed questions unless the express permission
of the court has been obtained.
Section 50 concerns proof of voluminous or complex documents.
Item 14 repeals and replaces existing subsection 50(1) implementing
Recommendation 6-1 of the Report. Its effect is that applications to rely
on summary documents could be made during a hearing. Under the
existing provision applications must be made before a hearing commences.
Items 15 and 16 are technical amendments
to the wording in the flow chart and headings at the beginning of Chapter
3. They implement Recommendation 16-1 and reflect that Part 3.11 contains
both discretionary and mandatory exclusions of evidence.
Part 3.2 of the Act establishes the ‘hearsay rule’ which
excludes evidence of a ‘previous representation’ in certain circumstances,
subject to exceptions created in the rest of the Part. The term ‘representation’
is defined to include both statements and conduct and can be express or
implied, as well as unintended and uncommunicated. Previous representations
means representations made otherwise than in the course of giving evidence
in the proceedings. This means that, for example, you can not give evidence
about what someone else said in a way[MB1] that suggests what was said was true. If it
is simply evidence that has been ‘heard’ its repetition or recounting
cannot be taken to make it reliable.
The rationale for an exclusionary rule for hearsay evidence is that:
- out of court statements are usually not on oath
- there is usually an absence of testing by cross-examination
- the evidence might not be the best evidence
- there are dangers of inaccuracy in repetition
- there is a risk of fabrication
- to admit hearsay evidence can add to the time and cost of litigation
and
- to admit hearsay evidence can unfairly catch the opposing party by
surprise.[20]
The significance of intention in section 59
Section 59 provides the general exclusionary hearsay
rule:
Evidence of a previous representation made by a person
is not admissible to prove the existence of a fact that the person intended
to assert by the representation.
The Commissions in their Report considered in some detail
the distinction between intended and unintended assertions and noted the
difficulties introduced by the courts in interpreting this provision.
In particular, they noted that the interpretative difficulties in R
v Hannes[21] with the broad reading
by Spigelman CJ of the New South Wales Court of Criminal Appeal which
would result in making unintended implied assertions subject to the hearsay
rule— something which the ALRC 1985 Report argued against on the basis
that it would require that evidence be sought to prove the state of the
mind of a relevant person.[22]
The ALRC had argued that this would result in trials being disrupted and
much evidence excluded.
Items 17 and 18 propose amendments to section
59 so as to clarify the meaning of ‘intention’ in section 59. The new
provision will provide that evidence of a previous representation is not
admissible to prove the existence of a fact that it can be reasonably
supposed that the person intended to assert by the representation.
In deciding whether it can be reasonably supposed the person intended
to assert a particular fact, the court may have regard to the circumstances
in which the representation was made.
The significance of this test is that it is external
to the person making the representation. In other words, the court is
not required to investigate into the subjective mindset of the representor
— proof of a subjective state of mind is very difficult and made all the
more so where the maker of the representation is not called to give evidence.
Item 21 is a consequential amendment resulting
from the amendments to section 59 in items 17 and 18.
As stated above, the general hearsay rule is set out
section 59 and then exceptions to the rule follow in the rest of the Part.
Division 2 creates exceptions for first-hand hearsay, with different rules
in civil and criminal proceedings and depending on whether the maker of
the representation is available to testify. Other exceptions are created
in other Parts of the Act (for example, Part 3.4 Admissions). Division
3 creates exceptions for second hand and more remote hearsay.
The difference between first hand and more remote
hearsay
Central to an understanding of the hearsay rule and its
exceptions is the distinction between first hand hearsay and more remote
hearsay. Whether the evidence is first hand or more remote hearsay is
often crucial in deciding whether any of the exceptions apply. First hand
hearsay is where the maker has first hand knowledge of the fact, based
on something that the person saw, heard or otherwise perceived.
The Act draws a distinction between first-hand and more
remote hearsay for reasons to do with the quality of the evidence. The
view was taken by the ALRC in its first inquiry that more remote hearsay
is generally so unreliable that it should be inadmissible except where
there are some guarantees of reliability. However, quality aside, it was
also observed that what is the best available evidence may depend upon
balancing the importance and quality of evidence against the difficulty
of producing it.[23]
This background is important in understanding the provisions
in the Bill that amend the hearsay rule exceptions.
Section 60 provides:
The hearsay rule does not apply to evidence of a
previous representation that is admitted because it is relevant for
a purpose other than proof of the fact intended to be asserted by the
representation.
This provision received extensive consideration by the
Commissions in the Report. The particular concern that was raised resulted
from the High Court’s decision in Lee v The Queen[24]. The Report states that as a result of Lee
v The Queen there is now a view that section 60 does not apply
to hearsay evidence more remote than first-hand hearsay and this in turn
raises serious doubt as to the application of section 60 to expert opinion
evidence. The Report states:
If Lee is read as deciding that section 60
has no application to second-hand and more remote hearsay, it follows
that evidence of accumulated knowledge, recorded data, and other factual
material commonly relied upon by experts will be inadmissible as evidence
of the truth of the facts asserted in the material. Yet a central reason
for enacting section 60 was to continue to allow such evidence to be
admissible as evidence of the truth of the facts asserted, even though
the evidences is hearsay.[25]
The Commissions’ view is that section 60 should be amended
to confirm that section 60 applies to relevant first-hand and more remote
hearsay, subject only to the mandatory and discretionary exclusions in
Part 3.11. Item 22 implements Recommendation 7-2. and inserts new
subsection 60(2) and (3). Proposed subsection 60(2) clarifies that
section 60 operates to permit evidence admitted for a non-hearsay purpose
to be used to prove the facts asserted in the representation, whether
the evidence is first-hand or more remote hearsay. That is, whether or
not the person had first hand knowledge based on something seen, heard
or otherwise perceived. New subsection 60(3) inserts a safeguard
to ensure that evidence of admissions in criminal proceedings that is
not first hand is excluded from the scope of section 60.
Item 23 is a consequential amendment. Its purpose
is to align the exception to the hearsay rule dependent on competency
with the new test for competency set out in proposed section 13.
Section 72 provides that the hearsay rule does not apply
to evidence of a representation made by a person that was a contemporaneous
representation about the person’s health, feelings, sensations, intention,
knowledge or state of mind. This provision currently applies to both first
hand and more remote hearsay. Item 32 would re-enact this section
as new section 66A moving it from the Division dealing with remote
and second hand hearsay to the Division dealing with first hand hearsay.
The effect is that the exception would only apply to first hand hearsay.
This implements Recommendation 8-5.
Items 28-30 amend section 65. This section provides
an exception to the hearsay rule in certain circumstances when a person
is not available to give evidence.
The Report notes that questions have been raised about
the operation of section 65 in relation to previous representations from
persons who are complicit in the offence with which an accused is charged,
but who refuse to give evidence at trial.[26]
The relevant parts of section 65 read:
(1) This section applies in a criminal proceeding
if a person who made a previous representation is not available to give
evidence about an asserted fact.
(2) The hearsay rule does not apply to evidence
of a previous representation that is given by a person who saw, heard
or otherwise perceived the representation being made, if the representation
was:
[…]
(b) made when or shortly after the asserted fact occurred
and in circumstances that make it unlikely that the representation is
a fabrication; or
(c) made in circumstances that make it highly probable
that the representation is reliable, or
(d) against the interests of the person who made it
at the time it was made.
The assumption behind (d) is that where a statement is
against the interests of the party who made it, this provides an assurance
of reliability. However, the Commissions argued that where the person
who made the statement is an accomplice or co-accused, this may not be
the case. An accomplice or co-accused may be motivated to downplay the
extent of his or her involvement in relevant events and to emphasise the
culpability of the other.
There is reason to suspect that an accomplice or co-accused
would be more inclined to take such a course where (for example) they
have immunity from prosecution. Where the accomplice gains immunity from
prosecution the reliability safeguard of the representation being against
self-interest no longer applies.[27]
The Report therefore recommended that paragraph 65(2)(d)
be amended to require the representation to 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. The intention
is to ensure that the hearsay rule is not lifted where a statement against
interest is made in circumstances that would not suggest reliability.[28]
Item 30 implements this recommendation and items
28 and 29 are consequential amendments arising from it.
Section 66 provides exceptions to the hearsay rule where,
in a criminal proceeding, a person who made a previous representation
is available to give evidence about an asserted fact. Such a person may
give evidence where the ‘occurrence of the asserted fact was fresh in
the memory of the person who made the representation’. The Report notes
that the courts have had some difficulty in interpreting the meaning of
‘fresh in the memory’ following on from the High Court’s decision in Graham
v The Queen[29]. The Report also notes that special
difficulties with the ‘fresh in the memory’ criterion often arise in sexual
offence cases and cases where identification and recognition evidence
is in issue. The Commissions concluded that there is strong support for
amendment of section 66 to clarify that ‘freshness’ may be determined
by a wide range of factors.[30] Proposed subsection 66(2) (item 31) clarifies
that freshness of the memory may be determined by not only factors to
do with time but also factors such as the nature of the event concerned,
and the age and health of the witness.
Section 71 of the Act provides an exception to the hearsay
rule for telecommunications. Item 33 repeals and replaces the section
in order to allow for a broader and more flexible definition of telecommunications.
It replaces the words ‘a document recording a message that has been transmitted
by electronic mail or by a fax, telegram, lettergram or telex’ with ‘a
document recording an electronic communication’. Electronic communication
has the same meaning as it has in the Electronic Transactions Act 1999
(item 86).
Item 34 introduces a new provision (proposed
section 72) which creates an exception to the hearsay rule covering
representations ‘about the existence or non-existence… of the traditional
laws and customs of an Aboriginal and Torres Strait Islander group’. This
provision is discussed in depth in the Report, but only a short commentary
is possible here.[31]
The problem of the interaction of the western legal system
with traditional Aboriginal and Torres Strait Islander forms of knowledge
– and the appropriate form for the transmission of this knowledge is eloquently
summarised in the following excerpt:
Perhaps the greatest clash between Aboriginal and
Anglo-Australian systems of knowledge is in relation to the form knowledge
takes. Oral traditions and history are usually the basis of Aboriginal
connection with land and, accordingly, are of major importance to land
claims and native title applications. As well as the dreamings, genealogies,
general historical stories and land use information will be transmitted
orally in most Aboriginal communities. Yet the Anglo-Australian legal
system is the ‘most prohibitively literate of institutions’.[32]
A practical example of the problem is given in the Commissions’
Report which discusses a case in which the Judge concluded that evidence
was inadmissible on the grounds that it was hearsay. The evidence in question
concerned the witnesses assertion that a deceased person had said to her
(regarding land the subject of a native title claim) ‘this is your grandmother’s
country’.[33] The judge
concluded that it was inappropriate to admit the witness statement under
the hearsay rules in the Evidence Act. The Commissions conclude that it
is appropriate to amend the applications of these rules, partially in
the light of amendments to the Native Title Act in 1998, which introduced
what could be called a presumption that, when conducting native title
proceedings the Federal Court was bound by the rules of evidence (previously
there were provisions stating the Court was not bound by technicalities
legal forms or rules of evidence’ when dealing with native title cases.
The Court had a discretion to modify the rules, and could take account
of cultural and customary concerns, but ‘not so as to prejudice unduly
any other party to the proceedings’.[34]
The Report documents that difficulties with the cultural
differences are evident not only in native title cases but also with respect
to criminal law defences, sentencing and family law (inter alia). These
various issues have also motivated the amendments proposed in items
35 and 36 which introduce an exception to the ‘opinion rule’ which
will allow members of an Aboriginal and Torres Strait Islander group to
give opinion evidence ‘about the existence or non-existence, or the content
of, the traditional laws and customs of the group’.
Item 38 changes the admissibility of expert evidence
about child development and behaviour. The changes will allow that expert
opinion can be used by a court to inform itself about the competence of
a witness and will also provide a new exception to the credibility rule
where a person has specialised knowledge based on the person’s training,
study or experience.
The Human Rights and Equal Opportunity Commission and
the ALRC, (1997 Report, Seen and Heard: Priority for Children in the
Legal Process) have previously recommended changes to the admission
of expert opinion evidence. The report said that expert opinion evidence
on issues affecting the assessment of child witness capability should
be admissible in any civil or criminal proceeding in which abuse of that
child is alleged. In its support of the proposed changes, the New South
Wales Director of Public Prosecutions noted the need to overcome stereotypical
perceptions of children and the need to rectify gaps and misunderstandings
in allegedly common or general knowledge about child development and behaviour.[35]
Section 79 currently provides an exception to the opinion
rule where the opinion is based on specialised knowledge based on the
person’s training, study or experience.[36]
The Commissions’ Report noted that Australian courts continue to demonstrate
a reluctance to admit evidence of children’s development and behaviour
under section 79.
The amendment to section 79 will put beyond doubt that
this particular type of expert opinion evidence is admissible. The proposed
section 79 is modelled on the Tasmanian Evidence Act 2001 to
overcome any reluctance in accepting that child development and behaviour
is a subject of specialised knowledge and that expert opinion evidence
is admissible on the topic.
The Commissions noted that there is a risk of admitting
this category of evidence.[37]
If a jury is told that the children who are abused behave in a particular
way and the complainant has behaved in this way, then the likely conclusion
for the jury is that the complainant is telling the truth about being
the victim of sexual abuse. The report concluded that potential misuse
of this sort of expert opinion can be adequately dealt with by provisions
in Part 3.11 which allow judicial discretion to exclude certain evidence.
Item 38 adds, at the end of section 79, proposed
subsection 79(2), to avoid doubt and without limitation to
subsection (1), a reference in that subsection to specialised knowledge
includes a reference to specialised knowledge of child development and
child behaviour (including specialised knowledge of the impact of sexual
abuse on children and their development and behaviour during and following
the abuse).
Proposed subsection (2)(b) addresses the status
of opinion evidence of the person with specialised knowledge, providing
that the opinion is admissible if it relates to the development and behaviour
of children generally; or, the development and behaviour of children who
have been victims of sexual offences, or offences similar to sexual offences.
These amendments will have an impact on the use of the
credibility rule as well as the opinion rule. Proposed section 108C
provides a new exception to the credibility rule, mirroring the amendment
of proposed section 79(2) relating to the opinion rule.
The purpose of subsection 85(2) is to ensure that only
reliable admissions are allowed into evidence, by requiring the prosecution
to demonstrate that the particular admission was made in circumstances
which make it unlikely that its truth was adversely affected.
Subsection 85(1) is intended to limit the scope of the
section without creating an overly high hurdle to the application of section
85(2).[38] Item 40
amends subsection 85(1) of the Act to ensure that evidence of admissions
in criminal proceedings that is not first-hand is excluded from the ambit
of section 60.[39] The
item will repeal and replace existing subsection 85(1). The words
‘in the course of official questioning’ in paragraph 85(1)(a) are replaced
with ‘to or in the presence of, an investigating official who at that
time was performing functions in connection with the investigation of
the commission, or possible commission, of an offence’. This clarification
will enhance the reliability of evidence by broadening the period where
the questioning might take place. The change implements Recommendation
10-1 of the Report and developments in case law, where the High Court
held that the existing provision ‘in the course of official questioning’…
marks out a period of time running from when questioning commenced to
when it ceased.’[40]
The amendment will also require that the reliability
of an admission made by a defendant is tested where that admission is
made to or in the presence of an investigating official performing functions
in connection with the investigation or as a result of an act of another
person capable of influencing the decision whether to prosecute.
Proposed subsection 85(1) varies slightly to the
Commissions’ recommendation.[41]
Following a decision in the Victorian Supreme Court in 2006 that suggested
covert operatives may be included in the scope of section 85, the words
‘as a result of an act of another person who was, and who the defendant
knew or reasonably believed to be capable of influencing the decision
to prosecute’ have been added to paragraph 85(1)(b).[42]
Further, to avoid doubt, the term ‘official questioning’
has been removed from other parts of the Act. Items 41, 65, 70 and
89 remove the term.
Items 42 and 43 of the Bill propose changes to
the tendency and coincidence rules. Item 42 will make minor changes
to section 97(1), to implement Recommendation 11-3 that highlights a drafting
issue.
Item 43 will reduce the threshold for admitting
coincidence evidence to require consideration of similarities in events
or circumstances, rather than the existing threshold that there are
similarities in events or circumstances. Section 98 is to be repealed
and replaced with a general test for the coincidence rule. The Commissions
considered that the existing test raises a high threshold and could exclude
highly probative evidence from the ambit of the provision. The new provision
will apply where the party adducing the evidence relies on any similarities
in the events or the circumstances in which they occurred, or
any similarities in both the events and circumstances in which they occurred.
The requirement to give reasonable notice in writing
to other parties is retained. Also, the requirement for the court to be
satisfied that the evidence will have significant probative value is retained
in paragraph 98(1)(b).
Item 45 proposes to amend the credibility rule
in order to clarify its interpretation. Item 45 proposes to amend
the credibility rule to ensure that evidence which is relevant both to
credibility and a fact in issue, but not admissible for the latter purpose,
is subject to the same rules as other credibility evidence. Item 45
inserts new Divisions 1 and 2. Proposed subsection 101A will provide
a definition of credibility evidence and proposed section 102 will
restate the credibility rule.
The need to amend the section follows the High Court’s
decision in Adam v The Queen (2001), which Odgers summarises
as:
In Adam v The Queen (2001) 207 CLR 96 at [34-35]
the majority of the High Court held that s102 should be interpreted
literally, so that if evidence is relevant in a proceeding in some way
other than to a witness’s credibility, it is not caught by s102. It
will not be caught even if the evidence is inadmissible for that other
use. If section 102 does not apply, the evidence will be admissible
as bearing on the witness’s credibility (pursuant to s 56), subject
to the court’s general discretion to exclude evidence. The joint judgement
rejected an argument that ‘s 102 should not be read as dealing only
with evidence the sole relevance of which is its bearing upon
the credibility of a witness [and] should be read as applying to evidence
which is not admissible on any basis other than the credibility
of a witness’.[43]
…It is quite unsatisfactory to leave these issues
to judicial discretion. There will be greater uncertainty in the preparation
of cases, greater debate and uncertainty in the conduct of trials, greater
variation in outcome and the likelihood of many appeals against conviction.
To overcome the decision in Adam, s 102 should be amended.[44]
The Commissions recommended that amendments be made to
ensure that the provisions of Part 3.7 (Credibility) of the Act 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 3.6 inclusive (Hearsay, Opinion, Admissions, Evidence of judgments
and convictions, Tendency and coincidence). The new section 102
restates the credibility rule in a more simple form to enable the section
to operate as it was originally intended. Item 45 also adds a note
to section 101A to clarify that section 60 (exception to the hearsay rule)
and 77 (exception to the opinion rule) are not relevant in the determination
of admissibility for another purposes under section 101A because they
cannot apply to evidence which has not yet been admitted.
This is a fairly significant change to the credibility
rule but it is unlikely to be especially controversial or problematic.
The Commissions’ Report notes:
The concept of when the credibility rules should apply
is well understood by practitioners, but difficult to express in legislation.
While ideally the wording of the amended provisions would be simpler,
the somewhat cumbersome drafting is necessary to meet the scrutiny of
literal interpretation which it will inevitably meet. In day-to-day
practice, however, once understood, it should not require laboured consideration.
In practice, it will be clear that certain evidence is either solely
relevant to credibility or is relevant to credibility because it has
been determined or ceded not to be admissible for another purpose under
the preceding provisions of the Act. [45]
Item 48–51 are consequential amendments arising
out of the amendments in item 45.
Subsection 103(1) provides that the credibility rule
does not apply to evidence adduced in cross-examination of a witness if
the evidence has substantial probative value. Probative value is defined
to mean:
The extent to which the evidence could rationally affect
the assessment of the probability of the existence of a fact in issue.
Item 46 amends this provision by replacing the
words ‘has substantial probative value’ with ‘could substantially affect
the assessment of the credibility of the witness’. It implements Recommendation
12-2. The rationale for the change is that the proposed wording is more
accurate and draws on the construction adopted by the Court of Criminal
Appeal in R v RPS which has allowed the courts to give meaning
to the section.[46] Item 47 is consequential
flowing from the amendment to section 103.
Section 106 provides that the credibility rule does not
apply to rebutting a witness’s denials by other evidence in specific circumstances
(for example where evidence tends to prove the witness’ bias or motive
to be untruthful). The Report notes that these specific circumstances
or exceptions may be too limiting and may prevent the admission of important
evidence. It recommended (12.5) that section 106 be amended to create
a broader basis on which to admit evidence. Item 52 implements
this recommendation. It repeals and replaces section 106 making
two key changes. Firstly the court may grant leave to adduce evidence
relevant to credibility outside the current categories. Secondly evidence
relevant to credibility may be led not only where the witness has denied
the substance of the evidence in cross-examination, but also where he
or she did not agree to it.
Items 53–56 make amendments restructuring the
provisions in a new Division 3 that relates to credibility of persons
who are not witnesses. They implement Recommendations 12-1, 12-3, 12-6.
Item 54 repeals and replaces subsection 108A(1) to reflect
the new definition of credibility and the changes to section 102 at item
45.
The Report did note that there are some concerns about
the proposed exception to the credibility rule. However, the Commissions
believe that the uniform Evidence Acts should provide an exception for
expert testimony to prevent injustice to the parties and ensure a proper
factual basis for the evaluation of the credibility of witnesses. The
Report notes that the clarification of the admissibility of expert evidence
relating to the behaviour and development of children is justified on
the basis of a demonstrated reluctance of some judicial officers to accept
that this is a relevant field of expertise and a matter beyond the ‘common
knowledge’ of the tribunal of fact. Proposed section 108C does
not connote that undue prominence should be given to this evidence, and
should not be seen as taking away from the generality of the provision.
The amendments will also enable evidence to be adduced
with the leave of the court to rebut denials (proposed section 106)
and non-admissions in cross-examination (proposed subsection 104(4)).
The principles which apply to privilege can apply both
within and outside of particular court proceedings. Privileges offer certain
exemptions from giving evidence and they attach to certain forms of evidence
(by analogy a privilege is similar in form to the non-compellability offered
to individuals, e.g. spouses, but privileges are limited to more specific
evidence).
The ‘client legal privilege’ allows a lawyer’s client
to refuse giving evidence on the grounds that it is information falling
within that client/lawyer relationship. The Report explains that this
privilege is ‘premised on the principle that it is desirable for the administration
of justice for clients to make full disclosure to their legal representatives
so they can receive fully informed legal advice.’[47]
The changes proposed by item 62 would introduce
new provisions which restrict the operation of the client legal privilege
where the privilege has already been expressly or impliedly waived.
Proposed subsections (2) and (3) are designed
to exclude information from the ‘client legal privilege’ when the behaviour
of the client or party has rendered the protection redundant or irrelevant.
So, for instance, if a client or party, expressly or by implication, consents
to the disclosure of the ‘substance of the evidence’ then the privilege
is not available (unless the disclosure was to another lawyer or, effectively,
to public officials within the Australian legal system – (proposed
subsection 4)).
This is one of the well established privileges and the
provisions are found in section 128 of the Evidence Act. The privilege
allows a witness to object to giving evidence if it would go to establishing
that they have committed an offence or are liable to a civil penalty.
The court must decide whether there are reasonable grounds for the objection.
If the court decides there are reasonable grounds for the objection it
must tell the witness they can refrain from giving evidence. The court
is, however, able to insist that the witness give the evidence if the
‘interests of justice’ require it (although only if the evidence doesn’t
go to show guilt of an offence or liability for a civil penalty in a foreign
country). The court can also offer the witness a choice about whether
to give the evidence and can explain that it can provide a certificate
regarding that evidence which would ensure that in further proceedings
the certified evidence cannot be used against the witness.
The changes being made to this part of the legislation
are largely technical – so, for instance, the evidence to which the objections
can be made would be not only ‘particular evidence’ but also ‘evidence
on a particular matter’ (proposed sub-section 128(1)). This change
may allow for a claim of privilege to be dealt with more systematically.
Also the use for which a certificate applies has been clarified (in a
more recent case which had to be re-heard there was a dispute about whether
the certificate should apply because the first case was not legally effective[48]). Proposed subsections 128(7) and 128(8)
apply to protect the evidence, even when challenged, however proposed
subsection 128(9) stipulates that a retrial or a trial ‘arising out
of the same facts’ does not provide the same level of protection.
Item 63 also introduces a new section 128A
which extends the privilege to certain forms of search or ‘freezing’
orders. The Report recommended that the privilege against self-incrimination
should not apply to these orders, however the Bill proposes to adopt an
alternative approach recommended by the VLRC. This approach involves providing
the evidence to the court in a sealed envelope so that the court can make
a determination whether there are ‘reasonable grounds for the objection’
(proposed subsection 128A(4)). Once again there are provision
for the court to determine whether ‘the interest of justice require the
information to be disclosed’ (proposed subsection 128A(6)) and
an order that the information must be disclosed can only be made if it
doesn’t tend to prove that an offence has been committed under a law of
a foreign country (proposed subsection 128A(6)(b)).
Item 68 deals with electronic communications. Existing
sections 160-163 apply presumptions relating to the sending (or transmission)
and receiving of postal articles, telexes, lettergrams, telegrams and
letters sent by Commonwealth agencies. Item 68 repeals and replaces
section 161 in order to also provide a presumption in relation to
electronic communications. It includes presumptions as to the source and
destination of the communications. This implements Recommendation 6-3.
Item 78 will insert a new section 192A
to make it clear that the court has the power to make an advance ruling
or make an advance finding in relation to any evidentiary issue. Proposed
section 192A will allow the court to give a ruling make a finding
in relation to the question before the evidence is adduced in the proceedings
where a question is about the admissibility or use of evidence proposed
to be adduced; or the operation of a provision of the Act or another law
in relation to evidence proposed to be adduced; or the giving of leave,
permission or direction under section 192.
The Evidence Act is currently silent on the issue of
advance rulings. The High Court has held that it may be appropriate to
give an advance ruling on a matter in respect of which the uniform Evidence
Acts requires leave, permission or direction to be sought, as section 192
gives the court the discretion to give such leave, permission or direction
‘on such terms as the court thinks fit’. However, it held that such a
power is limited. Gaudron J said:
Although it may be appropriate in some cases to give
an ‘advance ruling’ as to a matter in respect of which the Evidence
Act requires leave, permission or direction, it is to be remembered
that counsel ultimately bears the responsibility of deciding how the
prosecution and defence cases will be run. Thus, it is that ‘advance
rulings’, even if permitted … may give rise to a risk that the trial
judge will be seen as other than impartial. Particularly is that so
in the case of advance rulings that serve only to enable prosecuting
or defence counsel to make tactical decisions. If there is a risk that
an ‘advance ruling’ will give rise to the appearance that the trial
judge is other than impartial, it should not be given.[49]
Advance rulings may serve the interests of justice by
adding to the overall efficiency of the trial.[50] Crispin J articulated the benefits of advance rulings as
follows:
There are some cases in which substantial inconvenience,
expense and perhaps even unfairness might ensue if there were to be
no indication as to the likely exercise of discretion. Such an approach
may require counsel to prepare for trial and make tactical decisions
without knowing whether a substantial body of evidence is likely tobe
admitted, the Crown may be unable to make any sensible assessment as
to the prospects of obtaining a conviction, counsel for the accused
may be unable to offer any sensible advice as to the appropriate plea
and the opening addresses may have to omit any explanation of the relevance
of evidence subsequently admitted. Furthermore, if the trial judge subsequently
rules that the evidence should be excluded in the case of one accused
but not the other, it may be necessary to then discharge the jury and
order that the accused be tried separately. That would involve a substantial
waste of time and money, create unnecessary risks of prejudice to both
the Crown and the accused and leave jurors with the feeling that their
time had been wasted.[51]
Proposed section 192A provides that
Where a question arises in any proceeding, being
a question about:
(a) the admissibility or use of
evidence proposed to be adduced; or
(b) the operation of a provision of
this Act or another law in relation to evidence proposed to be adduced;
or
(c) the giving of leave, permission
or direction under section 192;
the court may, if it considers it to be appropriate
to do so, give a ruling or make a finding in relation to the question
before the evidence is adduced in the proceedings.
The amendments proposed at items 11, 12, 58, 66, 67,
76 and 77 replace the terms ‘lawyer’ with ‘Australian legal practitioner
or legal counsel’ in various sections of the Act. ‘Lawyer’ is defined
in the Dictionary as a barrister or solicitor. Items 80 and 88
would insert definitions of the terms ‘Australian legal practitioner’
and ‘legal counsel’ into the Dictionary. The Explanatory Memorandum states
that these more specific definitions are consistent with model National
Legal Profession laws. The effect of the amendments is to ensure that
the sections will refer to lawyers with a valid practising certificate,
as well as ‘legal counsel’, that is lawyers who do not have a current
practising certificate but are otherwise permitted to practise in that
jurisdiction.[52] Items 12 and 77 are
similar amendments — replacing the term ‘lawyer’ with ‘Australian
legal practitioner or legal counsel or prosecutor. Item 91 incorporates
a new definition of ‘prosecutor’ into the Dictionary.
Other amendments to the Evidence Act 1995 are
required to ensure consistency following the amendments made by Schedule
1. Many of these changes are technical and minor.
Items 1 and 2 of Schedule 2 amend subsection 4(5),
5, (5A) and (6) of the Act by removing the words ‘in relation’. This change
implements Recommendation 2-4 of the Report.
Items 3 - 5 make necessary changes to sections
of the Evidence Act that are now outdated. Item 3 updates
references to Part III, Part IIIA of the Crimes Act 1900 (ACT)
in paragraph 19(a) of the Evidence Act. Item 4 updates the
references in paragraph 19(b) of the Act to the Children’s Services
Act 1986 (ACT) which has been repealed and replaced by the Children
and Young People Act 1999 (ACT). Item 5 updates the reference
to the Domestic Violence Act 1986 (ACT). Paragraph 19(c) will be
amended to refer to the Domestic Violence and Protection Orders Act
2001 (ACT).
Items 6-9 repeal sections 25, 105, subsections
108(2) and 110(4) of the Act respectively. Those sections are now obsolete
as the right of a defendant to make an unsworn statement in a criminal
trial no longer exists under Australian law. These provisions were originally
included in the Evidence Act because the right to adduce evidence
in these circumstances continued to exist in Norfolk Island. They have
now been abolished by the Evidence Act 2004 (NI) and consequently
can be repealed in the Evidence Act.
Items 10 and 11 are consequential amendments
arising out of item 86 of Schedule 1 which introduces the broader concept
of ‘electronic communications’ rather than ‘telecommunications’. This
relates to Recommendations 6-2 and 6-3 of the Report.
Item 12 For consistency, amendments made under
items 11,12,58,61 and 76 in Schedule 1, this amendment will replace the
term ‘lawyer’ with the phrase ‘Australian lawyer’ in subsection 186(1).
Item 13 is a transitional provision. It provides
that the amendments in Schedule 2 do not apply in relation to proceedings
which have commenced prior to these amendments coming into force.
Schedule 3 amends the Amendments Incorporation Act
1905, its main purpose being to set up an authorised database of Commonwealth
legislation and to allow courts to rely on the electronic versions
of Commonwealth legislation. As noted earlier, this Schedule is unrelated
to the main purpose of the Bill and it could be asked why it has been
appended to a Bill relating to evidence law. Neither the Explanatory Memorandum
nor the Second Reading Speech provide any explanation for this.
Item 1 repeals the long title of the Act and renames
it ‘An Act relating to the publication of Acts in printed and electronic
form‘. Item 2 repeals section 1 and substitutes two new Parts which provide
for a new short title and define a number of new terms. The new title
of the Act is to be the Acts Publication Act 1905 (proposed
section 1).
Items 3 and 4 would make amendments to
sections 2 and 3 that deal with the publishing of reprints of Act. They
add a requirement that reprints must record amendments made by legislative
instruments.
Item 5 proposes two new Parts. Part 3 sets out
a new regime for the electronic publication of Acts. Proposed section
4 provides for the establishment of an electronic database that is
to be available to the public. Proposed section 5 provides that
Acts in the database are authoritative and complete and accurate. Unless
the contrary is proven, they can therefore be relied on as a correct statement
of the law, including by the courts, Part 4 provides a regulation making
power.
The long delay in commencement of Schedule 3 was noted
at the beginning of the Digest. As discussed above, the reasons given
for the delay is the time needed to develop the database. Concerns have
been expressed as to the adequacy of the existing database arrangements.[53] It is to be hoped these concerns are addressed
within the twelve months.
The bulk of the changes made in this Bill are technical.
They predominantly broaden the scope of admissible evidence and are designed
to allow the flow of evidence to operate with greater freedom. There
is also a focus on witness protection.
Provisions which could cause some controversy concern
the definition of ‘de facto partner’ with its broad inclusions. While
the inclusion of same-sex partners may not be controversial, given that
most of the parties represented in Parliament support an anti-discrimination
policy, the departure from the standard definitions of a de facto couple
may be. In particular the inclusion of possibly multiple de facto couples
and married partners within the one umbrella is unusual. In a sense this
is largely a matter of drafting, the provisions simply defining who is
covered by the exemption to the principle of compellability. But in another
sense this broadening of the more standard reference may be seen as raising
further issues.
As discussed above, Justice Kirby had advocated that
either the exception should be confined to those in a married relationship,
or, if an expansion of the exemptions to compellability was to be made,
it should be made to cover ‘intimate personal relationships’ as a generic
criteria.[54] The decision to avoid the approach
advocated by Justice Kirby may have more to do with restricting the categories
of people exempted than the suitability of the wording needed to cover
multiple relationships. This might have been done more clearly by referring
to ‘intimate personal relationships’ or even to an ‘interdependent relationship’
or some other phrase not so connected to the traditional concept of the
de facto couple.
Finally it is to be noted that reforms in the field of
evidence law seem to take some time to move into legislative form. This
is due, in part, to the desirability of promoting uniform evidence law
which necessitates consultations with different jurisdictions. Some of
the changes address issues raised by case law from some time ago,[55] but, having cleared the hurdle of a tripartite Report and clearance
by SCAG, it is not to be wondered at that the reforms have taken some
time to be presented to the Parliament.
[2]. S. Odgers,
Uniform Evidence Law, seventh edition, Sydney, Lawbook Co., 2006,
p. 1.
[7].
Further differences are set out in S. Odgers, op. cit., pp. 7–8.
[8]. For further
understanding, the reader is referred to Stephen Odgers, op. cit.
[46].
Uniform evidence, op. cit., pp. 398–399.
Mary Anne Neilsen, Monica Biddington, Kirsty Magarey
18 June 2008
Bills Digest Service
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